Hornsby Shire Council v Mouawad

Land and Environment Court (NSW)|2002-10-31|Before: Pain J, Mr J, Mr AM

CITATION : Hornsby Shire Council v Mouawad [2002] NSWLEC 191 PROSECUTOR Hornsby Shire Council PARTIES : DEFENDANT Pascal Mouawad FILE NUMBER(S) : 50032 of 2002 CORAM: Pain J KEY ISSUES: Prosecution :- plea of guilty - removal and lopping of trees in breach of tree preservation order - penalty Environmental Planning and Assessment Act 1979 s 76A(1) s 125, s 126 LEGISLATION CITED: Fines Act 1996 s 6 Hornsby Shire Local Environmental Plan 1994 cl 8 Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683; Cooper v Coffs Harbour Council (1997) 97 LGERA 125; Environment Protection Authority v Ampol Ltd (1995) 85 LGERA 443; CASES CITED: Environment Protection Authority v Hy-Tec Industries Pty Ltd [2002] NSWLEC 189; Hoare v The Queen (1989) 167 CLR 348; R v Thomson; R v Houlton [2000] NSWCA 309; R v Sharma (2002) 54 NSWLR 300 DATES OF HEARING: 12/09/2002 DATE OF JUDGMENT: 10/31/2002

PROSECUTOR Mr J Maston (barrister) SOLICITORS Michell Sillar LEGAL REPRESENTATIVES: DEFENDANT Mr AM Pickles (barrister) SOLICITORS Scara Trimarchi

Charge 1. The Defendant has pleaded guilty to an offence under s 125 of the Environmental Planning and Assessment Act 1979 (the EP&A Act). The summons filed by the Prosecutor alleges: that between 21 September 2001 and 4 October 2001 at 3 Franlee Road, Dural, the Defendant committed an offence against s 125(1) of the Environmental Planning and Assessment Act 1979, in that he carried out development, namely the removal and lopping of trees the subject of a Tree Preservation Order, being development which was forbidden to be carried out by s 76A(1) of the said Act, in that it was development specified in an environmental planning instrument, namely the Hornsby Shire Local Environmental Plan 1994 (the "HSLEP") as development which may not be carried out except with the written consent of Hornsby Shire Council in circumstances where no consent of the Council was obtained.

The offence arises because s 76A(1) of that Act provides: If an environmental planning instrument provides that specified development may not be carried out except with development consent a person must not carry the development out on land to which the provision applies unless: (a) such a consent has been obtained and is in force

Facts 3. The parties have usefully provided an agreed statement of facts from which the relevant material is set out as follows: 1. The offence occurred at 3 Franlee Road, Dural (the property). The offence occurred at the property between 21 September 2001 and 4 October 2001 (the relevant dates).

At the relevant dates, the property was owned by Mr Elias Khoury and Mrs Norma Therese Khoury as joint tenants.

The property is zoned Rural B under the Hornsby Shire Local Environmental Plan 1994 (HSLEP). Clause 8 of the HSLEP provides as follows: "Tree preservation: (1) The Council may make, revoke or amend a Tree Preservation Order; (2) A person shall not carry out, permit or direct or cause any ringbarking, cutting down, chopping, lopping, removing or wilful destruction of any tree or trees to which a Tree Preservation Order applies without the consent of the Council. This does not apply to or in respect of: (a) trees within a State Forest, or within a timber or forest reserve, within the meaning of the Forestry Act 1916; or (b) trees in a National Park, within the meaning of the National Parks and Wildlife Act 1974; or (c) action required by clause 23 of the Electricity (Overhead Line Safety) Regulation 1991; or (d) plants declared to be noxious weeds under the Noxious Weeds Act 1993; (3) A Tree Preservation Order, and any revocation or amendment of such an Order, does not have effect until it has been published in a newspaper circulating in the area of the Council."

At the relevant dates the property was subject to the Hornsby Shire Council Tree Preservation Order (TPO). The TPO had been relevantly published in a newspaper circulating in the Council area. 5. The trees on the property are not, and were not, at the relevant dates:

(a) situated within a State Forest, or within a timber or forest reserve, within the meaning of the Forestry Act 1916; or (b) situated within a National Park, within the meaning of the National Parks and Wildlife Act 1974; or (c) subject to any action required by clause 23 of the Electricity (Overhead Line Safety) Regulation 1991; or (d) plants declared to be noxious weeds under the Noxious Weeds Act 1993. 6. Mr Pascal Mouawad is the director of a company known as Frontier Civil Engineering Pty Limited, trading under the name of Cheap & Quick Demolition (Cheap and Quick). Cheap and Quick's business is the hire and operation of excavation machinery for the purposes of building, clearing and excavation of land.

In September 2001, Pascal Mouawad attended the property in the company of the other director of Frontier Civil Engineering Pty Limited, Mr Paul Mouawad, and Mr Kenneth Oliver. At that time, Elias Khoury instructed Pascal Mouawad to have all of the trees on the land pushed over.

On Tuesday 2 October 2001, an inspection of the property was conducted by Ms Julie Hassall (Environment Protection Officer) and Mr Damian Davis (Tree Management Officer) of Hornsby Shire Council (the Council). 9. The Council officers observed that an excavator was on the property and that numerous trees had been removed or lopped. They observed Mr Kenneth Oliver operating the excavator on the property. 10. Mr Oliver stated to Mr Davis and Ms Hassall that he was a contractor who was employed to operate the excavator by Mr Pascal Mouawad.

Mr Oliver admitted to Mr Davis and Ms Hassall to being a person who pushed over trees on the property on the instructions of Mr Pascal Mouawad.

On 2 October 2001, Ms Hassall made a telephone call to Mr Pascal Mouawad. During the telephone conversation, Mr Mouawad admitted that the excavator that was operated by Mr Oliver at the property was owned by Cheap and Quick. Mr Mouawad confirmed that Mr Oliver was employed by Cheap and Quick to push over the trees on the property.

No approval was sought or obtained from the prosecutor for the purposes of the TPO in respect of any of the trees (hereafter called the "trees") in the Summons Class 5. All of the trees referred to in the Summons were trees for the purposes of the TPO. None of the trees were trees of the kind referred to in clause 3 of the TPO.

Pascal Mouawad admits to hiring out and causing excavation machinery to be operated at the property for the purpose of pushing over trees.

Evidence tendered by the Prosecutor established that there were 173 trees removed or damaged as a result of the clearing. The trees were mainly species of Eucalyptus and Acacia. The trees had diameters ranging between 40mm and 1100mm and heights from 4m up to about 25m.

The relevant provision in relation to penalty is s 126 of the EP&A Act. Section 126(1) provides for a maximum penalty of $1,100,000. Section 126(3) provides that where an offence involves the destruction of or damage to a tree or vegetation the Court can, in addition to or in substitution for a pecuniary penalty, direct the person to plant new trees or vegetation.

Prosecutor's submissions 6. The Prosecutor has not put forward any evidence of environmental harm caused as a result of the clearing, but submitted that the matter was reasonably serious given that there were a significant number of trees, namely 173, removed or damaged without development consent. The Prosecutor referred the Court to Cooper v Coffs Harbour Council (1997) 97 LGERA 125 at 143 (per Howie AJ, Hunt CJ at CL and Smart J agreeing), where it was said the offence in that case, which involved the removal of eight trees without development consent, was a serious offence. The Prosecutor did submit that it would not follow that the removal of eight trees is automatically a serious offence, but submitted that this case was serious.

Furthermore, the Prosecutor submitted the activity the subject of the offence was undertaken for reward, but acknowledged the reward was not great.

In relation to culpability, the Prosecutor submitted that a person in the position of the Defendant, apparently familiar with building sites and excavation work, could be expected to take steps that would make sure the relevant permits/approvals had been obtained before commencing work.

The Prosecutor agreed that it was appropriate to allow for a discount for the early guilty plea, the cooperation of the Defendant in the hearing on penalty through agreement on the facts and the Defendant's cooperation with the Prosecutor's investigations. Further, the Defendant has agreed to pay the Prosecutor's costs of the proceedings against him, as agreed or assessed.

There are no prior convictions recorded against the Defendant in respect of any breach of the Council's TPO.

I note that the Prosecutor has not sought an order for replanting (see s 126(3) of the EP&A Act), which is entirely appropriate given that the Defendant is not the owner of the property.

Defendant's submissions 12. The Defendant's counsel submitted that there were mitigating circumstances relating to the low culpability of the Defendant. The Defendant's business, Cheap & Quick Demolition, hires and operates excavation machinery. It generally hires equipment to a principal builder and does not, in the course of business, need to seek development approvals. The Defendant failed to make the appropriate enquiry of Mr Khoury because his prior experience had been the removal of trees only in the context of development where the tree removal was done pursuant to a development consent for building activity. In that context the Defendant was used to following the directions of builders and did not need to enquire whether development consent had been obtained. The builder would usually identify what trees were to be retained and the protective measures required to be taken. Because of his prior experience, the Defendant operated on the assumption that consent had been obtained.

The Defendant submitted that the fact that trees had already been lopped when the Defendant arrived at the site indicated to the Defendant that the work had been approved by the Council.

In this case the work was clearly done at the behest of the landowner; it was the landowner who had control of the site and instructed the Defendant to remove the trees. It was the landowners who primarily stood to gain from the activity the subject of the offence. Furthermore, the Defendant submitted his culpability is in the low range because Mr Khoury was the real culprit as he had control of the site and the responsibility as owner to obtain development approval. Although the Defendant takes responsibility for the employee (Oliver) who removed the trees, as the Defendant instructed Oliver, the Defendant submits that all further instructions after the initial visit to the site by the Defendant came from Mr Khoury and the removal of the trees was essentially a matter for him to decide.

Cheap & Quick Demolition received a notional total profit of approximately $800 by way of fuel credits at the landowners' service station. The Defendant received no personal or significant financial gain from the activity, it was the landowner who stood to gain from the tree clearing.

The Defendant is 28 years old and has been running the business of Cheap and Quick Demolition for ten years. His counsel submitted that he has expressed regret for the incident and is well aware of the need in future to seek advice as to whether development consent has been obtained.

The Defendant has cooperated with the Prosecutor and has given evidence to secure convictions of those responsible. He has not attempted to deny his conduct and has made self-incriminating admissions. The Defendant submitted he had pleaded guilty at the earliest opportunity.

There were no serious environmental consequences resulting from the offence. Furthermore, the Defendant submitted his discount in penalty for an early guilty plea should not be reduced because he is unable to rehabilitate the land as he is not the owner.

Capacity to pay 19. Under s 6 of the Fines Act 1996, in the exercise of its discretion to fix the amount of any fine, the Court is required to consider such information regarding the means of the accused as is reasonably and practicably available for the Court's consideration and such other matters as, in the opinion of the Court, are relevant to the fixing of that amount. The application of s 6 was raised by me at the hearing.

In submissions from the bar table the Defendant's counsel advised that the Defendant's income is approximately $600 per week, he has a house valued at $250,000 with a mortgage of $150,000. Whilst he is the director of Cheap and Quick Demolition, he receives a wage from that company rather than the profits. No affidavit or oral evidence was presented in relation to the Defendant's assets and liabilities, so that the Court lacks any substantive evidence in this regard.

Finding 21. The Court accepts that the persons with primary responsibility for the commission of this offence are the landowners, principally Mr Khoury, on the agreed facts.

There was no evidence presented by the Prosecutor of any environmental harm as a result of the offence. However, I consider that the offence is reasonably serious given the significant number of trees that have been removed or damaged, without development consent. Regard must however be had to the culpability of the defendant and the individual circumstances which led to the commission of the offence.

In my opinion, the culpability of the Defendant is reasonably low. He was not the landowner and received little financial or other gain from the offence. The Defendant was also not the person responsible for obtaining the relevant development consent. However, despite the Defendant's submissions that it was not usually his role to obtain approvals or make enquiries as to whether approvals had been obtained (see par 12 above), through his involvement in such activities the Defendant should have been aware of the need to obtain development consent for such activities and should have been far more cautious in ensuring that development consent had been obtained by the landowner before instructing that the trees be removed.

The principle of proportionality requires the sentence to be proportional to the gravity of the crime: Hoare v The Queen (1989) 167 CLR 348 at 354. The Court is also to have regard to the maximum penalty applicable, as this is an expression of the seriousness Parliament attributes to the offence: see Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 at 698. The maximum penalty in this case is $1,100,000. In these circumstances I think the fine needs to be more than nominal.

The Court is also to take into account the principles of general and specific deterrence. The Defendant has no prior convictions in relation to breach of a TPO (or development consent). In relation to the principle of specific deterrence, I accept that the Defendant is now clearly aware of the need to make proper enquiries as to whether development consent has been obtained, such that there is little need to factor in an element of specific deterrence within the penalty to be imposed.

The Court should also have regard to the principle of "evenhandedness". Prevailing sentences for the same or similar environmental offences with which the Defendant is charged are relevant: Camilleri's Stock Feeds . However, each case must of course be decided on its own facts: see Environment Protection Authority v Ampol Ltd (1995) 85 LGERA 443 at 448.

The maximum penalty for offences against the EP&A Act were substantially increased on 1 February 2000 from $110,000 to $1,100,000. In applying the principle of "even handedness" in sentencing, the penalties imposed in respect of convictions for similar offences under the previous regime will not be directly relevant given the significant increase in the maximum penalty: see Environment Protection Authority v Hy-Tec Industries Pty Ltd [2002] NSWLEC 189 at [17]. In any event, there are few, if any, comparable cases which can be referred to as any guide under the higher penalty regime now in place.

It is also relevant in this case, in the interests of parity in sentencing of co-offenders, to refer to the sentence imposed on the owner of the land, Mr Khoury (also under the new penalty regime). Mr Khoury was charged separately with the same offence. He pleaded guilty in this Court and was convicted on 25 October 2002 by Pearlman J. A fine of $30,000 was imposed but was discounted to $15,000 because of several major mitigating factors including the fact that he had spent around $34,000 on rehabilitation of vegetation on the land, had entered an early guilty plea and had agreed to pay the Prosecutor's costs.

For completeness I note one further matter, which is that s 6 of the Fines Act 1996 requires the Court to take into account, inter alia , the means of the Defendant to pay. Upon inquiry by the Court submissions were made by the Defendant's counsel as to the Defendant's means. However, there was no evidence filed by the Defendant in support of such submissions. As I have already noted, there is therefore no evidence which can be taken into account by the Court as to the Defendant's means to pay any fine.

In my opinion, the circumstances of the offence warrant the imposition of a penalty of $12,000. There are, however, a number of mitigating factors that should be taken into account to reduce that penalty. Firstly, the Defendant pleaded guilty at the earliest opportunity. A plea of guilty entitles the Defendant to a discount in penalty under s 22 of the Crimes (Sentencing Procedure) Act 1999 in the range of 10-25%: R v Thomson; R v Houlton [2000] NSWCA 309; R v Sharma (2002) 54 NSWLR 300. The Defendant also fully cooperated with the Prosecutor, expressed regret and has agreed to pay the Prosecutor's costs of the proceedings against him. In the circumstances I believe that all the mitigating circumstances warrant a reduction in penalty of 25%, such that it is appropriate that a fine of $9,000 should be imposed.

Orders The Court orders that: 1. The Defendant is convicted of the offence with which he is charged. 2. The Defendant is fined the sum of $9,000 to be paid to the Registrar of the Court within one month of today's date. 3. The Defendant must pay the Prosecutor's costs of the proceedings against him, as agreed or assessed. 4. The exhibits may be returned.

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