Hornsby Shire Council v Khoury [2003] NSWLEC 83 | Case summary

1 In proceedings No 50033 of 2002, the defendant, Mr Elias Khoury, is charged with an offence against s 125(1) of the Environmental Planning and Assessment Act 1979 ("the EP&A Act"). 2 The charge is that between 21 September 2001 and 4 October 2001 at 3 Franlee Road, Dural ("the site") the defendant carried out development, namely the removal and lopping of trees the subject of a tree preservation order, which is development which was forbidden to be carried out under s 76A(1) of the EP&A Act, in that it was development specified in an environmental planning instrument, namely the Hornsby Shire Local Environmental Plan 1994 ("the Hornsby LEP") , as development which may not be carried out except with consent, and it was carried out in circumstances where no consent was obtained. 3 The statutory background is that s 76A(1) of the EP&A Act stipulates that, if an environmental planning instrument provides that specified development may not be carried out except with development consent, then a person must not carry out that development on land to which the provision applies unless the consent has been obtained and is in force. 4 Clause 8 of the Hornsby LEP provides that the council may make a tree preservation order. Clause 8(2) provides that a person shall not carry out or permit or direct or cause any cutting down or lopping or removing of any tree or trees to which a tree preservation order applies without the consent of the council. There are certain exceptions to that prohibition but it is admitted between the parties that none of those exceptions apply. 5 According to cl 8, the tree preservation order does not have effect until it has been published in a newspaper circulating in the area of the council. A tree preservation order was made by the council by resolution on 11 October 2000 and a copy of it has been tendered. It is admitted that it is a tree preservation order which was published in a newspaper circulating in the area of the council. 6 The prosecutor and the defendant have produced an agreed statement of facts and from that agreed statement of facts I derive the following understanding of what occurred. A firm called Cheap and Quick Demolition, of which Mr Pascal Mouawad is the proprietor, attended the site in September 2001. At that time Mr Khoury instructed Mr Mouawad to remove trees on the site. On 2 October 2001 an inspection of the site was conducted by council officers. They observed that an excavator was on the site and that numerous trees had been removed or lopped. They observed Mr Kenneth Oliver operating the excavator. Mr Oliver stated that he was a contractor employed to operate the excavator by Mr Mouawad. There were subsequent meetings and discussions between the council officers and Mr Khoury. Mr Khoury admitted in a telephone conversation which he had with one of the council officers on 3 October 2001 that he gave verbal instructions to Cheap and Quick to carry out the pushing over and lopping of trees on the site. 7 The agreed statement of facts confirms that no approval was sought nor was any approval obtained from the council for the purposes of the tree preservation order in respect of any of the trees which are specified in the annexure to the summons. The agreed statement of facts also confirms that all of the trees referred to in the summons were trees described for the purposes of the tree preservation order and none of them, as I have already noted fell within the exceptions. 8 Mr Khoury has admitted that he removed up to 139 trees having a height greater than five metres and 29 trees having a height greater than three metres but less than five metres in contravention of the tree preservation order. A list of all those trees is attached to the agreed statement of facts by reference to their species name, their common name, their diameter and their height. 9 The extent of the lopping and removal of the trees is able to be seen from two aerial maps which were tendered in evidence, one of the site before the incident happened and one afterwards. 10 For an offence of this kind the maximum penalty set by the legislature is $1.1 million. There is ample authority which states that the penalties of that maximum are set by the legislature to express the level of community concern about the offences to which they relate, see Camilleri Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 at 698; R v Jurisic (1998) 45 NSWLR 209 at 227. 11 Mr Maston, appearing for the prosecutor, submitted that the offence is, relatively speaking, a serious offence. He referred to the number and nature of the trees that were removed. According to the number admitted by Mr Khoury there were in total 178 trees. They were native trees. A large number of them were wattles, but there were also a large number of gum trees and there were other trees. Some of them were of considerable height, some of them of lesser height, and some were of a smaller size than others. All of them fell within the preservation provisions enacted by the tree preservation order and all of them were removed. 12 Mr Khoury gave some explanation of why the incident occurred. He said that he instructed and arranged for the removal of the trees completely innocently because he was concerned about snakes in the area in the vicinity of his children. He stated that he was unaware of the council's tree preservation order or that consent was required. He said it was the first time that he and his wife had owned acreage. He said that he did not want the trees next to the school on one side of the site to be removed and he indicated that more trees were removed than he asked for. 13 I do not take those matters into account in mitigation of the penalty but they do explain to an extent how it came about that such a great number of trees was removed from the site in contravention of the tree preservation order, the Hornsby LEP and the EP&A Act. 14 However there are matters which I take into account in mitigation of the penalty. First, and most importantly, Mr Khoury has agreed to a revegetation program on the site, he did so with reasonable speed in response to the request in that respect by council officers. A report by the contractor undertaking that revegetation was tendered which shows that between the period December 2001 and the present date a number of remediation steps have been taken. They are not yet completed but I note that amongst them there has been the planting of approximately 200 trees of the 270 trees which have been agreed to be planted by the arrangement between Mr Khoury and the council. And I note from Mr Khoury's statement that the remediation program is almost complete and the cost up to now is approximately $34,000. 15 I also take into account Mr Khoury's contrition. He has said so expressly in his statement and his actions including his plea of guilty show a genuine remorse. 16 I also take into account Mr Khoury's co-operation and assistance with the prosecutor. He frankly admitted his responsibility. He entered into the arrangement with the council for the remediation of the area in which the trees were removed. He acted responsibly and quickly. His co-operation a factor which the Crimes (Sentencing Procedure) Act 1999 requires me to take into account. 17 I also take into account that Mr Khoury entered a plea of guilty at the first reasonable opportunity. According to the Court's records, the plea was entered on the third return date. 18 The Crimes (Sentencing Procedure) Act requires the Court to consider a reduction of a penalty it might otherwise impose by reason of an early plea and indeed that is prescribed by the decision of the Court of Criminal Appeal in R v Thomson (2000) 49 NSWLR 383. In that case the Court of Criminal Appeal stated that a general range of reduction was between 10 per cent and 25 per cent. In this case I think it is appropriate to apply the maximum percentage 25 per cent. 19 I have read the testimonials which were tendered by Mr Cross on behalf of his client. I take into account the matters that they say about the character and standing and of the defendant and his integrity and honesty and I accept those matters also in mitigation of penalty. 20 Finally I note that the defendant has no prior conviction for an environmental offence. 21 I think that this offence would normally attract a fine in the amount of $30,000. I am prepared to discount that amount by 50 per cent by reason of the mitigating factors that I have set out. I propose to impose a penalty of $15,000. 22 Mr Khoury, I find you guilty of the offence with which you are charged. I impose upon you a penalty of $15,000 which is to be paid to the Registrar of this Court within one month from today's date. I order you to pay the costs of the prosecutor, determined in accordance with the Land and Environment Court Act 1979. 23 The exhibits which have been tendered may be returned except exhibits C and D. 24 I make also an order in relation to the rehabilitation of the site. There has been tendered an environmental restoration plan prepared for the council and for Mr Khoury. In relation to that I make the following order. Pursuant to s 126(3) of the EP&A Act the defendant is directed to complete the planting of new trees and vegetation and maintain such trees and vegetation after planting is complete in accordance with the plan specification prepared by Sustainable Vegetation Management Pty Limited dated April 2002, a copy of which will be annexed to the Court's order. 25 In relation to proceedings No 50034 of 2002, which are proceedings against Norma Therese Khoury, I dismiss the summons and I make no order as to costs.

Hornsby Shire Council v Khoury

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