Hunters Hill Council v Gary Johnston

Background to commission of the offence 5Both the background facts and those facts establishing the commission of the offence are not in dispute. They are the subject of an Agreed Statement of Facts that has been tendered without objection. My recitation of background facts is taken from that document (Exhibit A). 6The Defendant is, and was at all times material to the commission of the offence, the owner of land known as 9 Toocooya Road, Hunters Hill (the property). The property is located on the western foreshore of the Hunters Hill peninsula with the western boundary of the property bounded by the Parramatta River. From the Toocooya Road frontage, the property has a general western/south-western orientation with views across the Parramatta River to Gladesville Bridge and the northern foreshore of the suburb of Drummoyne. 7Prior to the events later described, there was a detached single-storey dwelling on the property set below the level of the road. Growing between that dwelling and the boundary of the property with the Parramatta River, there were a number of mature trees that included the four hoop pines that are the subject of the present charge. These four hoop pines are described as growing in a cluster. They were readily visible from surrounding properties as well as from the River and Gladesville Bridge. 8In a report prepared in March 2006, these four hoop pines are described as ranging between 20m and 22m in height, with the canopy spread of each tree ranging between 7m and 9m. The trunk diameter at breast height of two of the trees was 500mm; one of the trees had a trunk diameter of 550mm while the fourth tree had a trunk diameter of 600mm. In short, as these dimensions indicate, they were substantial trees.

The planning instrument 9At all relevant times, the planning controls applicable to development of the property were those found in Hunters Hill Local Environmental Plan No 1 (the LEP). The property was within Zone No 2(a2) (Residential "A2") under the LEP. By reference to the land use table for land so zoned, development for the purpose of a dwelling house could not be carried out except with development consent: cl 9. In addition to the land use table and its identification of land uses requiring development consent, there were additional layers of development control imposed by the LEP that are relevant to be noticed. 10By cl 18A of the LEP, the property was identified as being within a Foreshore Scenic Protection Area. That clause provides that the Prosecutor, as the consent authority, may not grant consent to an application to carry out development on land within the area so designated unless it has assessed: "(a) the appearance and visual quality of the proposed development when viewed from the waterway, and (b) the impact of the proposed development on the view towards the waterway from public roads and from public reserves or from land within Zone No. 6(a) or 6(b)." 11The property was also located within a conservation area identified by the LEP. By cl 19A, erection of any building could not be undertaken within that area except with the consent of the Prosecutor: cl 19A(1). By cl 19A(2) the Prosecutor was constrained from granting consent to an application to carry out development on land within the conservation area: "unless it has made an assessment of the extent to which the carrying out of the development in accordance with the consent would affect the heritage significance of the conversation area." 12Development of the property in accordance with the LEP also engaged the heritage provisions of the LEP. Dwellings at both 7 and 10 Toocooya Road adjoining (in the case of no 7) or in the vicinity (in the case of no 10) of the property, were identified by the instrument as items of environmental heritage. This had the consequence that the Prosecutor was enjoined from consenting to an application to carry out development on the property unless an assessment was made of the effect which carrying out development on the property would have "on the heritage significance of the item and its setting": cl 19(3).

A development application is lodged 13On or about 11 March 2005, the Defendant lodged a development application with the Prosecutor seeking development consent to demolish the existing dwelling on the property and to construct a new dwelling in its place. The new dwelling for which consent was sought is described as a large contemporary two storey dwelling over three levels, including a basement car park for 9 vehicles together with an outdoor pool and spa. The dwelling was to be constructed for the Defendant as his residence. It is the dwelling in which the Defendant resides at the present time. 14The development application lodged by the Defendant attached both architectural plans and landscape plans, all showing the four hoop pines as trees to be retained. Also accompanying the development application was a Statement of Environmental Effects prepared by a consultant planner and a Statement of Heritage Impact prepared by heritage consultants. Each of these statements sought to address matters which the Council was required to consider under the provisions of the LEP. Each of the two statements to which I have referred indicate, in terms, that the respective consultants were retained by the Defendant. 15The Statement of Environmental Effects identified the four hoop pines as standing between the existing dwelling and the foreshore and stated that those trees were to be retained in accordance with an arborist's report that was said to accompany the application. In addressing the "topography and scenic impacts" of the proposed new dwelling, the author of the Statement wrote (paragraph 5.1): "In addition, the proposed dwelling would be partly obscured by existing vegetation and substantial trees in the rear garden, as well as a selection of materials which soften the appearance of the dwelling. Accordingly, the appearance of the dwelling will not be prominent in views from the waterway". 16Attached to the Statement of Environmental Effects was an objection prepared pursuant to cl 6 of State Environmental Planning Policy No. 1 - Development Standards (SEPP 1). The height of the new dwelling proposed by the Defendant exceeded the maximum height for a building imposed by cl 15 of the LEP. The purpose of the objection was to engage the discretion of the Prosecutor provided by cl 7 of SEPP 1 to grant consent, notwithstanding the height excedence. The objection prepared on behalf of the Defendant included the following statement: "In addition, the existing hoop pines will provides [sic] screening of the proposed dwelling from the water and surrounding vantage points, such as Huntleys Point in which case, the areas of height non-compliance would be negligible from a distance." 17The Statement of Heritage Impact was prepared to assess "the extent to which the proposed development would affect the heritage significance of the conservation area" and also to assess the effect of the proposed new dwelling "on the heritage significance of heritage items in the vicinity and their setting" (at p. 3). In addressing these matters, the Impact Statement contained the following statements: (i) "When viewed from the west and from the waterfront, the increase in scale, with three levels stepped down the site and large areas of glazing, has the potential to alter the existing visual character of the area. However, there would be only limited views from the water as the proposed residence would be well screened by the existing mature groupings of pine trees on the property and the established camphor laurel on the neighbouring property" (at p 40); (ii) "The retention and reinforcement of the existing mature tree plantings maintained an effective screen for the proposed new dwelling from the water" (at p 42); (iii) "The proposed replacement dwelling has been designed to respond sympathetically to the site and contextual constraints including retention of the mature trees on the site and the existing setback from Toocooya Road ... . The impact of the proposed new dwelling on the setting would be mitigated by the retention of the mature groupings of pine trees in the rear yard, the existing setback from the street and the existing ridge height in the proposed new roof" (at p 47). 18Prior to consideration of the development application, the Defendant's consultant planner provided a further report to the Prosecutor from Apex Tree and Garden Experts. That report identified and described the four hoop pine trees on the property and outlined, in terms, protection measures necessary to ensure that works associated with the construction of the new dwelling did not impact upon those trees. 19The Prosecutor considered the Defendant's development application (assigned the reference DA 2005/1032) at its meeting on 12 December 2005. The staff report submitted for consideration at that meeting included the following statement: "Subject to attention to detail, and implementation in accordance with the design intent, the bulk and scale of the building is considered to have been skilfully restrained, and whilst a large building, is not considered to be out of character with the immediate locality, and is acceptable having regard to the circumstances of the site including the large foreshore setback and mature landscaping". The report recommended that development consent be granted subject to a number of deferred commencement conditions (cf s 80(3) of the EPA Act). 20At its meeting on 12 December 2005 the Prosecutor resolved that the objection under SEPP 1 lodged on behalf of the Defendant was well founded and further resolved to grant development consent subject to deferred commencement conditions identified in the notice of determination addressed to the Defendant and dated 4 January 2006 (Development Consent 2005/1032). There were 12 conditions, identified as deferred commencement conditions, that were required to be satisfied before the Development Consent 2005/1032 became an operative consent. 21Among the deferred commencement conditions was condition 10. Relevantly, it required that the Defendant provide an amended landscape plan together with submission of a report by an arborist having a minimum level of qualification as an arborist described in the condition. The report to be obtained from that arborist was required to include: (i) an accurate description of the four hoop pines indicating their height, canopy width and diameter at breast height (DBH); (ii) an assessment of the health and structure of those trees; (iii) the "degree of effect" that the proposed development may have on the health and safety of those trees; (iv) recommendations, and if possible, specifications both in drawing and written form detailing how those trees will be protected throughout the development period; (v) a requirement that the Arborist liaise with the landscape architect "to determine the most suitable location for the new areas of pathway"; and (vi) the provision of "dated photographs" of the trees due to their significance, their size and "visual contribution to the locality". 22Condition 89 of Development Consent 2005/1032 expressly related to the four hoop pines. It provided: "89. To ensure the protection and preservation of the Four (4) Hoop Pines at the rear of the property a $20,000 ($5,000 per tree) bond is to be paid refundable upon completion of the Occupation Certificate and final inspection." The bond required by that Condition was paid to the Prosecutor by the Defendant on or about 4 October 2006. 23On 28 March 2006 the Defendant submitted an application to the Prosecutor for modification of Development Consent 2005/1032 pursuant to s 96 of the EPA Act. The modification then sought included amendments to the design that were required by the deferred commencement conditions, together with other internal planning modifications arising from the changes made. The application for modification of the consent was accompanied by a number of documents that included amended architectural drawings, amended landscape plans, an arborist's report prepared by Melanie Howden of Footprint Green Pty Ltd, together with a document described as "modified environmental impact statement", described as being prepared for the Defendant. 24The amended landscape plan once again identified the four hoop pines, indicating that they were "to be protected and retained in accordance with Arborist Report". The amended architectural drawing also identified, in plan, the four hoop pines and in text beside them on the plan appear the words "[f]our existing trees to be retained". 25The arborist's report prepared by Melanie Howden described each of the four hoop pines stating the height, canopy spread and DBH of each of them, giving the relevant dimensions as I have earlier indicated them to be. All four trees were described individually as being of high landscape significance. The safe, useful life expectancy of each tree was said to be "long" with a lifespan exceeding 40 years. 26Having described the physical characteristics and life expectancy of the four hoop pines, the report prepared by Ms Howden then identified the impact of proposed building works upon those trees. She identified those elements of the building that were to be located in close proximity to each tree and concluded that there should be no significant impact from building work provided tree protection measures were undertaken. The report then proceeded to provide a specification for those protection measures. These included: (i) pier and beam construction for a concrete pathway, terrace and stairs to be located in close proximity to the trees, with that method of construction designed to avoid severance of critical roots; (ii) provision of trunk armour; (iii) identification of the area outside the main building footprint beneath the proposed pathway, stairs and terrace with star pickets and barrier tape so that no disturbance to the soil, placement of machinery or stockpiling of material was to occur within the area so identified; and (iv) installation of secure protective fencing located no closer than the primary root zone, with that fencing to be 1.8m high chain mesh material securely fixed to steel supporting posts with a top and bottom strainer or steel pipe rails. 27On 14 August 2006, the Prosecutor resolved to consent to the Defendant's application for modification of Development Consent 2005/1032. In so doing, it acknowledged that the deferred commencement conditions originally imposed had been satisfied and that the modifications be allowed subject to further conditions imposed by resolution and notified to the defendant by a notice of determination dated 1 September 2006. The modified consent was then assigned the number 05/1032(A). 28The modified development consent included the following conditions: "10. The works shall be erected in conformity with the approved plans and any approved specifications and in accordance with the conditions of approval. Alterations, modifications or variations of these plans or specifications requires the prior formal approval of Council. ... 56. The development consent No. 05/1032(A) relates to plans prepared by [sic] No's S96.01-S96.07 prepared by X Squared Design Dated March 2006 received by council 28 March 2006; and No. S96.08 amended July 2006 received by council 25 July 2006, stormwater disposal and re-use concept plan Dated March 2006, received by council 28 March 2006, driveway gradient plan March 2006 received by council 28 March 2006, Plans S1-C1 to S1-C11 dated March 2006 and landscape plans prepared by PSB,SK01C dated 24.03.06, Issue C. ... 66. Landscape works shall be carried out in accordance with the approved landscape plans prior to the issue of the Occupation Certificate and be maintained to the satisfaction of the Principal Certifying Authority at all times. ... 94. To ensure the protection and preservation of the Four (4) Hoop Pines at the rear of the property a $20,000 ($5,000 per tree) bond is to be paid, refundable upon completion of the Occupation Certificate and Final Inspection. ... 96. Implement the recommendations and tree protection measures outlined in the Arborist Report prepared by Footprint Green, dated 24 March 2006. The recommendations and tree protection measures outlined in this report should be implemented before any works on site. All works undertaken within the Tree Protection Zone shall be supervised by the same Arborist who prepared the report for this DA. Furthermore, the Arborist shall inspect the site at regular intervals throughout the development period to ensure the specifications for tree protection are maintained. A site log shall record the details of the site inspections for review by the PCA prior to the release of the Compliance Certificate." 29The architectural and landscape plans identified in condition 56 are those to which I have earlier referred and on which the four hoop pines are shown as being retained. The bond referred to in condition 94 replicates condition 89 imposed at the time of the original development consent. 30The report referred to in condition 96 is the report prepared by Melanie Howden to which I have already referred. 31There were two subsequent modifications to development consent no. 05/1032(A) sought by the Defendant and granted by the Prosecutor. Neither of those modifications affected the requirement to protect and retain the four hoop pine trees in accordance with the conditions of consent that I have identified. 32A private certifier was retained by the Defendant for the purpose of obtaining a construction certificate for demolition of the existing building and subsequently for the erection of the new dwelling that was the subject of the modified development consent granted by the Prosecutor. The construction certificate for the new dwelling was issued on about 4 April 2008. Both the architectural plans and landscape plans that were the subject of that certificate accorded with the plans that were the subject of the modified development consent, showing the four hoop pines to be retained. 33On 28 March 2008 the Defendant entered into a building contract with Pimas Gale Constructions Pty Ltd (Pimas Gale) for the construction of the new dwelling on the property, the original dwelling having been demolished by that date. The building contract contemplated that the architect then retained by the Defendant would be responsible for contract administration on behalf of the Defendant. However, shortly after the contract was signed by the Defendant, the architect retained by him ceased to have any involvement in the project. 34As a result, the Defendant performed some of the functions of contract administrator that would otherwise have been performed by the architect. The Defendant's role included attendance at regular site meetings with Pimas Gale and its site foreman. He considered and caused progress payments to be made as payment claims were made by Pimas Gale. Further, he generally oversaw the progress of building work on the property. 35Throughout the period of construction of the dwelling on the property, the defendant owned and resided at the property known as 12 Toocooya Road, Hunters Hill, located across the road from the property. This location facilitated ready and frequent access to the property during the course of construction and was the venue at which regular construction meetings were held between him and Pimas Gale. 36Throughout the process of construction on the property, Pimas Gale implemented the required tree protection measures in relation to the four hoop pine trees that were to be retained. By about late July or early August 2010 external construction works for the dwelling had been completed and internal fitout of the new dwelling was being undertaken. At about this time Pimas Gale removed the tree protection measures that had been put in place.

Commission of the offence: four hoop pine trees are removed 37In late August or early September 2010 the Defendant contacted Ahmad Bahwach with a view to obtaining his services to remove trees on the property. Mr Bahwach was the owner of a business that traded under the name "Always The Best Tree Lopping". 38On 13 September 2010 Mr Bahwach met the Defendant at the property. Mr Bahwach was shown the four hoop pine trees growing on the property and was told by the Defendant that they were to be cut down. Mr Bahwach returned the following day with three other persons where he again met the Defendant and provided an oral quote to the Defendant for the removal of the four hoop pine trees. 39Mr Bahwach and his crew arrived at the property at about 9.30am on 15 September 2010. There they met the Defendant. Among the members of the crew was a tree climber whose role was to climb the trunk of the trees in order to remove all branches before the trunk itself was cut and removed. The other members of the crew were labourers. 40In addition to his crew, Mr Bahwach had also arranged for a wood or tree chipper to attend the property that morning. The chipper brought with him a large mobile mulcher and truck into which the mulch was fed and subsequently removed. 41In preparation for removal of the trees, the Defendant had sought and obtained permission from a neighbour to use that neighbour's driveway for the purpose of removing cut trunks and tree branches from the property to the street where they were to be chipped or mulched and then removed. The Defendant advised Mr Bahwach of this arrangement. 42Branch and then trunk removal was undertaken on the morning of 15 September by Mr Bahwach and his crew. The defendant was present during the time that branches and some of the tree trunks were being removed. In accordance with the arrangement made by the defendant with his neighbour, branches and cut trunks were carried from the property along the neighbour's driveway to the street where they were chipped and mulched. 43Early in the afternoon of that same day Mrs Wendy Denniss was at home at 10 Toocooya Road, Hunters Hill. She was able to view the four hoop pine trees in question from both the living areas and balcony of her home. She noticed that the hoop pine trees "had diminished in number". While driving in the Hunters Hill area that afternoon, Mrs Denniss saw the Prosecutor's Parks and Landscape Co-Ordinator, Mr Phillip Sutton. She stopped and reported to him that the hoop pine trees on the property were being cut down. 44Mr Sutton then attended the property. He observed large tree stumps, branches and hoop pine leaves on the footpath on both sides of Toocooya Road in the vicinity of the property. The majority of the leaves attached to tree branches or those that had fallen on the ground were green and appeared to Mr Sutton to be healthy. 45Mr Sutton then went to the rear of the property. There he observed that three of the hoop pine trees had been cut down and the fourth tree consisted of a trunk only with all branches lopped from it. The tree stumps that Mr Sutton observed had been freshly cut with liquid sap inside the bark on the surface of each stump. There was fresh sawdust on the ground. The majority of the leaves on the cut branches that were lying on the ground were green and appeared to Mr Sutton to be healthy. 46Upon making these observations, Mr Sutton instructed Mr Bahwach and his crew to stop cutting down the trees. Shortly thereafter Mr Sutton left to retrieve a camera and upon his return during the afternoon he took a number of photographs that were tendered as part of an agreed bundle of documents (Exhibit B1). The photographs confirm the observations made by Mr Sutton both as to the sawn trunks and branches on the street awaiting mulching and also as to his observations of the three tree stumps and lopped tree trunk on the property. 47The Defendant accepts that none of the four hoop pine trees were dead or dying at the time at which they were either cut down or lopped. He also accepts that no approval or consent had been granted by the Prosecutor for the cutting down or lopping of any of those trees. 48A few days after the four hoop pine trees were cut down or lopped, as the case may be, Mr Bahwach attended the business premises of the Defendant where the Defendant paid him for the work undertaken on 15 September. 49On 17 September 2010 the Defendant applied to the Prosecutor for consent to remove the remaining hoop pine trunk from which all branches had been removed. Approval for that trunk to be removed was given on 22 March 2011, the Prosecutor being satisfied that the tree was dead as a consequence of removal of its branches in the circumstances earlier described.

Impact on views 50It is agreed between the Prosecutor and the Defendant that had the four hoop pine trees been retained as required by Development Consent 05/1032(A), the trunks and canopies of the trees would have obscured views of the Parramatta River from most parts of the south-western elevation of the new dwelling. Having regard to the size of the trunks of these trees and the density of their foliage, filtered to heavily filtered views would have been available through the foliage to the River depending upon the position of the viewer. 51The four hoop pine trees were located in close proximity to the spa and pool that were approved as part of development consent 05/1032(A). Their branches would have overhung the spa and pool and a portion of the canopy of the trees was above the roofline of the dwelling. Photographs taken from within the dwelling when nearing completion but prior to removal of the four hoop pines indicate that they were clearly visible through all windows along the south-western elevation. 52As a result of the removal of these trees, the view from rooms and terraces along the south-western elevation of the new dwelling is an uninterrupted view of the Parramatta River, Tarban Creek and the Gladesville Bridge.

Purposes of sentencing 53Section 3A of the CSP Act provides that the purposes of imposing a sentence on an offender include: "(a) to ensure that the offender is adequately punished for the offence, (b) to prevent crime by deterring the offender and other persons from committing similar offences, ... (e) to make the offender accountable for his or her actions, (f) to denounce the conduct of the offender, (g) to recognise the harm done to the victim of the crime and the community." 54The sentence imposed by the Court is a public denunciation of the conduct of the offender. As s 3A of the CSP Act requires, the sentence must ensure that the offender is held accountable for his or her action and is adequately punished for the offence. 55As Preston CJ observed in Gittany Constructions Pty Ltd v Sutherland Shire Council [2006] NSWLEC 242; 145 LGERA 189 at [102], "the sentence imposed needs to operate as a powerful factor in preventing the commission of similar crimes by persons who might be tempted to do so by the prospect that, if they are caught, only light punishment will be imposed." His Honour continued: "This is particularly so in the context of unlawful development, having regard to the policy considerations articulated in a number of cases including Mosman Municipal Council v Menai Excavations Pty Limited (2002) 122 LGERA 89 and Carlino v Leichhardt Municipal Council [2005] NSWLEC 198 (27 April 2005)." 56Offences of the present kind undermine the integrity of the system of planning and development control in this State. The system depends upon persons taking steps to obey the law not only by obtaining development consent when such a consent is required before carrying out development but also, having obtained development consent, undertaking development in conformity with the conditions of that consent. Compliance with conditions is equally integral to the operation of the planning system imposed by the provisions of the EPA Act. 57In Keir & Anor v Sutherland Shire Council [2004] NSWLEC 754 McClellan J (as his Honour then was) was required to determine an appeal against the severity of a sentence imposed for a breach of s 76A(1)(b) of the EPA Act. When delivering judgment his Honour stated at [20] that the Court must: "impose a penalty which is not only appropriate, with respect to the actions of [the offender], but also sends a strong warning to builders and others who carry out development work that a breach of the law will be visited with significant financial consequences". 58Those observations of McClellan CJ were followed by Lloyd J in Carlino v Leichhardt Municipal Council [2005] NSWLEC 198; 144 LGERA 235. His Honour was also dealing with a severity appeal from a sentence imposed following breach of a condition of development consent. He indicated (at [34]) that general deterrence was an important factor for an offence of the present kind. He continued: "In particular, there is a need to protect the public interest by ensuring that conditions of consent seeking to minimise the impact of development are observed." Those observations are apposite to the imposition of the sentence in the present matter (see also Gittany Constructions Pty Ltd v Sutherland Shire Council at [103]).

Objective gravity of the offence 59When imposing a sentence, the primary factor for consideration is the objective gravity or seriousness of the offence charged. That objective gravity or seriousness fixes both the upper and lower limits of proportionate punishment. The upper limit is so fixed because the sentence should not exceed that which can be justified as appropriate or proportionate to the gravity of the crime considered in light of its objective circumstances (Veen v The Queen (No 2) [1988] HCA 14; 164 CLR 465). The lower limit is so fixed because allowance for subjective factors, particularly those pertaining to the offender, cannot produce a sentence which fails to reflect the objective gravity or seriousness of the offence. That observation articulates the common law principle of proportionality (R v Scott [2005] NSWCCA 152 at [15]). 60In determining the objective gravity or seriousness of the present offence, the circumstances in which the offence was committed by the Defendant and to which the Court may have regard include: (i) the maximum penalty for the offence; (ii) the objective harmfulness of the Defendant's actions; and (iii) the Defendant's state of mind in, or reasons for, committing the offence.

The maximum penalty 61As I have earlier stated, the maximum penalty for an offence against s 125(1) of the EPA Act is 10,000 penalty units s 126(1) which equates to $1,100,000. 62This maximum penalty indicates the seriousness with which Parliament views offences against the EPA Act. It is of great relevance in determining the objective gravity of the offence, as that maximum penalty reflects "the 'public expression' of parliament of the seriousness of the offence" (Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 per Kirby P at 698). Although no daily penalty is sought in the present case, the fact that s 126(1) of the EPA makes provision for a daily penalty of $110,000 in addition to the penalty of $1.1M further demonstrates the seriousness with which an offence against s 125 is to be considered.

Objective harmfulness 63The evidence that I have summarised in some detail makes it apparent that the four hoop pine trees in question not only had intrinsic significance but were also significant in a broader environmental sense. On any objective view of the evidence, their retention had importance extending beyond their inherent value as hoop pine trees. 64They were healthy specimens, having the heights, trunk diameters and canopy spread earlier described, growing on a large suburban block of land that exceeded 2,600m² in area. Their safe, useful life expectancy was assessed as being in excess of 40 years. The report of the Arborist, Melanie Howden, demonstrates that with the recommended tree protection measures in place, there would be no significant impact upon those trees by undertaking construction of the defendant's dwelling in accordance with the plans for which development consent 05/1032(A) had been granted. 65The importance of the four hoop pine trees, extending beyond their intrinsic significance as large healthy specimens of the species, is demonstrated in a number of ways. First, they were assessed by Ms Howden as having high landscape significance. Photographs attached to Ms Howden's report, which forms part of Exhibit B1, demonstrate that significance both from within the property itself and when viewed from Toocooya Road. Additional photographs included in Exhibit B1 and Exhibit C (Tab 5) also demonstrate not only the prominence of the trees in the local landscape, but also the effect which they had in mitigating the impact of the new dwelling when viewed from outside the site, particularly when viewed from the Parramatta River. The relevant photographs in Exhibit C were taken after the new dwelling was substantially completed but prior to removal of the trees in question. 66Secondly, the importance of retaining the four hoop pine trees is made apparent in reports commissioned by the Defendant and submitted by him to the Prosecutor in support of his application for the grant of development consent to the erection of his new dwelling. The trees were identified in the Statement of Environmental Effects when addressing the mitigation of impacts by the proposed new dwelling, particularly in the context of the specific provisions of the LEP requiring consideration of that impact because of the property's location within the Foreshore Scenic Protection Area, a conservation area and in the vicinity of identified heritage items. I have earlier referred to the content of the Statement in this regard (at [15]). The Statement also placed importance on the four hoop pine trees in support of the objection under SEPP 1 to the height limitation for any building on the property imposed by cl 15 of the LEP (see [16] above). 67The importance of the four hoop pine trees in addressing the impact of the proposed new residence upon nearby heritage items was addressed in the Statement of Heritage Impact lodged by the Defendant with the Prosecutor. The passages earlier quoted from that Statement (at [17]) identify the mitigating effect that retention of the trees would have when considering the provisions of cl 19(3) of the LEP. 68The third manifestation of importance attached to the four hoop pine trees, extending beyond their intrinsic value or worth, is evident both from the conditions imposed by the Prosecutor when resolving to grant the original development consent in December 2005 and also from the additional conditions that it imposed when acceding to the Defendant's application to modify the original development consent. So much is apparent from the fact that deferred commencement condition numbered 10 to the original consent required the further report from an arborist with the detail ultimately contained in the report prepared by Ms Howden. Also to be noticed in this context is the requirement for payment of a bond imposed by the original condition 89, the purpose of which was "[t]o ensure the protection and preservation of the four hoop pines". 69Notwithstanding the acceptance of the Howden Report in satisfaction of deferred commencement condition numbered 10, the concern on the part of the Prosecutor to ensure retention of the four hoop pine trees was demonstrated by the imposition of condition 96 that I have earlier quoted in full and which was a condition imposed at the time of granting the modified consent. 70Those matters that I have just discussed identify the importance, objectively assessed, that attached to retention of the four hoop pine trees. In that context I am satisfied beyond reasonable doubt that the removal of those four trees by the Defendant had a substantial impact that was objectively harmful. Not only was their significant landscape contribution to the property and its environs lost, their removal defeated an important environmental objective of their retention, namely the beneficial effect identified by the Defendant's consultants in mitigating the impact of the new dwelling, particularly in the context of the requirement to address that impact by the specific provisions of the LEP to which I have referred. 71Mr S J Rushton SC, who appeared for the Defendant, accepted that the loss of the trees was "not insignificant". Perhaps the submission was so framed because Mr Rushton had otherwise submitted that account should be taken of the fact that the trees "were not part of an ecologically endangered environment, and there is no evidence that they are a rare or threatened species." 72While the latter submission is factually correct, I am not persuaded that the loss of the four hoop pine trees from the property, having regard to the matters to which I have referred, should be considered otherwise than as significant. That significance is not diminished simply because the hoop pine is not a tree species indigenous to the Sydney region, albeit that it is indigenous to the northern region of this State. 73The objective harmfulness of the Defendant's actions in removing the trees also transcends the loss of the trees themselves. His actions evidenced harm to the system of development control imposed by the EPA Act, a matter to which I have earlier referred. The cutting down of these trees, contrary to the conditions of development consent, were antipathetic to both the planning system ordained by the EPA Act and also the specific controls imposed by the LEP. Mr Rushton acknowledged as much in his oral submissions on behalf of the Defendant. 74For these additional reasons, I maintain my conclusion that the harm occasioned by the Defendant's conduct in removing the four hoop pine trees was substantial. As such, that harm is to be taken into account as an aggravating factor under s 21A(2)(g) of the CSP Act.

The Defendant's state of mind 75I have earlier stated that an offence against s 125(1) of the EPA Act is an offence of strict liability. Hence, mens rea is not an element of the offence. However, the state of mind of an offender at the time of committing an offence can have the effect of increasing the seriousness of that offence. A strict liability offence that is committed intentionally will be objectively more severe than one that is committed unintentionally or non-negligently (Gittany Constructions Pty Ltd v Sutherland Shire Council at [123] and the cases there cited). 76The defendant did not give evidence. Apart from the tender of the Wikipedia entry for Araucaria cunninghamii, the only other evidence tendered by the Defendant in his sentence case were five character testimonials. Evidence from which the Defendant's state of mind may be deduced is therefore limited to the Agreed Statement of Facts (Exhibit A) and those inferences that may properly be drawn from those facts. Self-evidently from its description, Exhibit A is taken as evidence to which the Defendant has had input. 77On behalf of the Defendant, it was conceded by Mr Rushton that in removing and lopping the four hoop pine trees on 15 September 2010, the actions of the Defendant involved a deliberate and intentional breach of the development consent. He accepted that the Defendant understood the development consent to require the retention of those trees. 78On the evidence before me, that concession was, with respect, properly made. 79As my summary of facts taken from the Statement of Agreed Facts reveals, the Defendant himself was the applicant for development consent and is recorded as having commissioned both the Statement of Environmental Impacts and the Statement of Heritage Impact accompanying his development application. Further, the notification by the Prosecutor of the grant of both the original development consent and the modified development consent was addressed to the Defendant. 80The Defendant terminated the involvement of his architect in managing the construction of his new dwelling and thereafter actively participated in contract administration with Pimas Gale. Following removal of the tree protection measures for the four hoop pine trees that had been put in place by Pimas Gale, it was the Defendant who retained Mr Bahwach and gave instructions for removal of the trees. Moreover, he was present when tree removal was undertaken by Mr Bahwach and his crew. 81Having regard to the concession made on behalf of the Defendant and to the facts supporting it, I am satisfied beyond reasonable doubt that the Defendant's actions in removing three of the four hoop pine trees and stripping the fourth hoop pine tree of all branches with a view to its removal were actions by him that were intentional and deliberate. Moreover, those actions were taken in circumstances where he was aware that the development consent required retention of those trees. 82Notwithstanding the concession made by Mr Rushton, he submits that I could not, on the evidence before me, be satisfied to the requisite standard that the Defendant knew that by breaching condition 10 of development consent 05/1032(A) he was committing a criminal offence. Having regard to condition 89 of the original consent or condition 94 of the modified consent, Mr Rushton submits the defendant was entitled to believe that the sanction for removing the trees was forfeiture of the bond provided to the Prosecutor in accordance with those conditions. 83The evidence contained in the five character testimonials tendered on behalf of the Defendant identify him not only as a philanthropist but also as the owner of a very successful business in which it is said he employs about 1,000 people and operates 85 retail stores located within Australia and New Zealand. From this material I deduce that the Defendant is a man of some sophistication. As such, it might be expected that he had some understanding of the likely ramifications of his conduct in directing removal of the four hoop pine trees from the property, beyond forfeiture of the bond provided in accordance with the relevant condition of the development consent. 84However, I do not need to determine, nor do I determine beyond reasonable doubt, that the defendant knew his conduct in directing removal of the four hoop pine trees from his property, contrary to the conditions of development consent, carried a criminal consequence. When taking account of his state of mind as a factor in determining the objective gravity or seriousness of the offence, it is sufficient to find beyond reasonable doubt, as I have, that his action was intentional and, to his knowledge, contrary to the requirements of the conditions of the development consent, as modified. 85Related to the Defendant's state of mind when committing the offence charged are his reasons for committing that offence. The criminality involved in the commission of the offence is measured not only by its seriousness but also the reasons for its commission (Bentley v BGP Properties Pty Ltd [2006] NSWLEC 34; 145 LGERA 234 at [237]). The prosecutor expressly disavows a submission that the defendant committed the offence to derive financial gain by increasing the value of the property. I accept that the evidence tendered before me does not permit an inference properly to be drawn that financial gain was the Defendant's reason for committing the offence. 86However, I am satisfied beyond reasonable doubt that the defendant's reasons for removing the trees was to improve the amenity of his property. This was achieved by - (i) ridding himself of trees that, in themselves he did not favour; and/or (ii) removing a perceived impediment to the enjoyment of the outdoor terraces, pool and spa located on or adjacent to the south-western elevation of his new dwelling; and/or (iii) expanding his water views. No other rational explanation emerges from the evidence: no other explanation is offered. Further, in his oral submissions on behalf of the Defendant, Mr Rushton accepted that removal of the four hoop pine trees did improve the amenity of the Defendant's property. 87While the defendant has benefited from the improved amenity of his property, as the Prosecutor submitted, the community amenity has been diminished by - (i) the loss of foreshore vegetation with consequent diminution of the aesthetic value of the Foreshore Scenic Protection Area; and (ii) the visual prominence of the built form of the new dwelling when viewed from and across the Parramatta River, being the very impact that those provisions of the LEP to which I have earlier referred sought to address and which was represented on behalf of the Defendant to be avoided by retention of the trees.

Conclusion on objective seriousness 88For those reasons that I have discussed, directed to the maximum penalty for the offence committed by the Defendant, the objective harmfulness of the offence, the Defendant's state of mind at the time of commission of the offence and his reasons for committing it, I conclude that the offence is objectively serious, falling within the middle of the range for offences against s 125(1) of the EPA Act. As I understand them, the submissions made on behalf of the Defendant accept that the objective seriousness of the offence is mid-range.

Subjective circumstances of the Defendant relevant to the offence 89In imposing a proportionate sentence upon the Defendant, the Court is required to take into account matters personal to the Defendant that mitigate the sentence or penalty that would otherwise be imposed. However, the subjective features of the case cannot be applied so as to produce a sentence or penalty that fails to reflect the objective seriousness of the offence or the objectives of punishment such as retribution and deterrence, both general and personal (Gittany Constructions Pty Ltd v Sutherland Shire Council at [144]). 90Section 21A(1)(b) of the CSP Act requires that when determining the appropriate sentence for an offence, the Court is to take into account mitigating factors "referred to in subsection (3) that are relevant and known to the court". It is appropriate therefore to identify those matters which, by reference to s 21A(3) are relevant to the Defendant.

Lack of prior criminality 91The Defendant does not have any prior convictions for an offence, environmental or otherwise. He is entitled to have that fact considered in mitigation and I do so: s 21A(3)(e).

Good character 92The defendant is entitled to have considered in his favour the fact that he is otherwise of good character: s 21A(3)(f). That good character is made apparent from the five character testimonials tendered on his behalf. 93The character testimonials have been provided by: (i) Associate Professor Charles Teo AM; (ii) Dick Smith AO; (iii) Bill Moss AM; (iv) Stephen Waugh AO; and (v) Professor Michael Archer AM (Professor of Biological Earth and Environmental Sciences at the University of New South Wales). Each of those testimonials acknowledges disclosure by the Defendant of the charge presently before the Court and of the fact that he has entered a plea of guilty to that charge. 94The character testimonials make apparent that the Defendant has overtly displayed a sense of social consciousness as is reflected in his philanthropy. Not only has that philanthropy extended to medical research but also to sizeable financial contributions to a number of environmental projects. These have involved a very substantial donation to the University of New South Wales to establish a Chair for research in water management; a financial contribution to the preservation of the Daintree Forest in North Queensland and the provision of funds for research into photovoltaics as a source of energy that could replace conventional fossil-fuel consuming engines in motor vehicles. 95In light of this evidence, I accept that the Defendant is a person of good character who is held in high regard by a number of eminent members of the community. His conduct in committing the present offences was aberrant and completely inconsistent with the social conscience displayed by his philanthropy and good works in the broader community.

Unlikelihood of reoffending 96My acceptance of the fact that the commission of the present offence was an uncharacteristic aberration on the part of the Defendant renders it unlikely that he would re-offend. This is a relevant consideration in mitigation: s 21A(3)(g). This finding, so it is submitted on behalf of the Defendant, would have the consequence that in determining the appropriate penalty "specific deterrence would not rank highly". In the terms in which it is expressed, I accept that submission. It does not result in the need for specific deterrence being eliminated from consideration when determining an appropriate penalty.

Early plea of guilty 97The summons commencing the present proceedings was returnable on 26 October 2012. At that time the Prosecutor had not served all of its evidence, a circumstance about which the Defendant's senior counsel complained at the time, indicating that had all evidence been served, the Defendant would have entered a plea on that day. 98The matter was then listed before the List Judge on 14 December 2012 and again on 8 February 2013 when, by the latter date, the Prosecutor had completed the service of the evidence upon which it relied. On that same occasion, the matter was adjourned for one week to enable discussion to take place between the parties as to the course which the proceedings would take. It was on the adjourned date, namely 15 February 2013, that the Defendant entered the plea of guilty to the present charge. 99In light of the procedural history, there is little difference between the Prosecutor and the Defendant as to the discount that the Defendant should receive by reason of his guilty plea: cf s 21A(3)(k) and s 22 of the CSP Act. The prosecutor accepts that the service of its evidence was delayed and that the Defendant should receive "close to the full discount" (R v Thomson; R v Houlton [2000] NSWCCA 309; 49 NSWLR 383). The defendant submits that, in the circumstances, it should receive "a full discount in respect of his early guilty plea". 100That there was utilitarian value in the Defendant's plea of guilty is not in doubt and, as a consequence, will be reflected as a mitigating factor in determining the appropriate penalty. In the circumstance that pertained in the present case, I consider that the Defendant is entitled to a discount towards the top of the range for the entry of the plea of guilty. As the plea is interrelated with other considerations such as contrition and remorse and assistance to authorities, it is appropriate to combine the effect of the plea with these other considerations in a single discount (R v Thomson; R v Houlton at [160 (ii) and (iii)]).

Contrition and remorse 101As earlier indicated, the Defendant did not give evidence. On his behalf, it was accepted by Mr Rushton that there was no direct evidence of his contrition and remorse (cf s 21A(3)(i) of the CSP Act). However, he suggested, I think, that the plea of guilty by the Defendant may be taken as some evidence of his regret for the events underlying the present charge. 102I do not accept, on the balance of probabilities, that this is so. The entry of a plea of guilty, without more, is capable of explanation on a basis or bases that do not manifest contrition or remorse (R v Thomson; R v Houlton at [117]). Moreover, the provisions of s 21A(3)(i) of the CSP Act identify those factors that must be present in order to engage its provisions. While the plea of guilty may evidence acceptance of responsibility for the Defendant's actions, the absence of evidence acknowledging the harm ("damage") caused by removal of the four hoop pine trees or the absence of evidence of any "reparation" by way of tree planting or other mitigating action for the loss of those trees, denies the Defendant any discount by reason of contrition or remorse. 103I hasten to add that the absence of contrition and remorse is not taken by me to be a factor that would increase the penalty to be imposed. The consequence of my finding is that the Defendant is not entitled to any diminution in penalty on this account.

Other subjective factors 104There is a further matter relevant to the subjective circumstances of the Defendant. The bond of $20,000 provided by him in compliance with condition 89 of the original development consent and condition 94 of the modified consent has been forfeited to the Prosecutor. I take this into account when determining an appropriate penalty.

Conclusion on subjective factors 105There are subjective circumstances pertaining to the Defendant that mitigate the penalty otherwise to be imposed for the offence for which he has pleaded guilty. In fixing the penalty those mitigating factors to which I have regard are the Defendant's lack of prior convictions, his previous good character, his plea of guilty and the fact that he has forfeited a bond of $20,000 to the Prosecutor.

Consistency in sentencing 106Relevant to the exercise of determining an appropriate sentence is the ascertainment of the existence of a general pattern of sentencing by courts for offences of the kind presently being considered. In so doing, it is important to recognise that there is difficulty in attempting to compare the penalty imposed in one case with the penalty considered appropriate in another. The wide divergence between or among cases both as to the objective gravity of the particular offence and the subjective circumstances of a defendant demonstrate the caution to be exercised when seeking to make a comparison (Axer Pty Ltd v Environment Protection Authority (1993) 113 LGERA 357 at 365). 107Both in Gittany Constructions Pty Ltd v Sutherland Shire Council at [183] and in Cameron v Eurobodalla Shire Council [2006] NSWLEC 47; 146 LGERA 349 at [105], Preston CJ provided a summary of a number of cases in which penalties had been imposed by this Court for offences against s 125 of the EPA Act involving the unlawful removal of trees. Obviously, those cases reflected the position at the time the judgments were delivered in 2006. I do not repeat his Honour's summaries. It is sufficient to note that his Honour identified a range of penalties imposed as falling generally between $10,000 and $25,000, while also observing that penalties were increasing (at [183]). 108One case that is not identified in the summaries and which appears to have some elements in common with the present case is that of McClellan J, when Chief Judge of this Court, in The Council of the City of Gosford v Tauszic [2005] NSWLEC 266. The defendant in that case was charged with an offence against s 125(1) of the EPA Act by cutting down three mature Norfolk Island pine trees at a beachside location. The defendant had pleaded not guilty but the offence was proved after a trial. 109When determining penalty, his Honour accepted that the defendant had removed the trees in question for the purpose of enhancing the amenity of his own property, particularly to expand available views to the water. The defendant was otherwise a person of good character, having tendered what his Honour described as "a number of impressive references". There was no evidence given of contrition and remorse. 110The orders made by the Court in Tauszic are instructive for present purposes. A fine of $25,000 was imposed. The defendant was also ordered to pay the prosecutor's costs which included the costs of the trial, an interlocutory application and the costs of the sentence hearing. In addition, he was ordered to plant two new trees of the same variety of those that had been destroyed; to maintain those trees to a mature growth and to provide to the prosecutor the sum of $10,000 to be held as security for performance of the orders for planting and maintenance, such security to be held for a period of 10 years. Thus, in addition to the order for costs, very obviously the monetary equivalent of the aggregate penalty imposed was well in excess of $25,000. 111In the present case, the Defendant has accepted responsibility for payment of the Prosecutor's costs, as assessed or agreed, but is not burdened by an obligation to plant trees or other vegetation in place of those that were removed. An application for an order requiring the planting of trees for those lost, including a detailed specification for planting and maintenance of those trees, was belatedly made by the Prosecutor but that application was opposed by the Defendant. As a consequence of the lateness with which the application was made, together with the tentative view that I expressed as to the need to afford fairness to the Defendant in addressing the detail of the orders sought, the application for that order was not pressed. 112The conviction entered in Tauszic was subsequently quashed by the Court of Criminal Appeal (Tauszic v Gosford City Council [2006] NSWCCA 193; 146 LGERA 428). However, the basis upon which the conviction was quashed was unrelated to the sentencing considerations and penalty imposed by the former Chief Judge. 113In Manly Council v Taheri [2008] NSWLEC 314 the Court was required to determine the penalty to be imposed upon Mr Taheri following a plea of guilty to three offences against s 125(1) of the EPA Act. All offences involved the removal of trees. One of the offences involved the clearing of trees from a waterfront reserve adjacent to the defendant's property. The two remaining offences related to the removal of eight trees from the defendant's own land, one offence alleging that the removal was contrary to the terms of a development consent and the other offence alleging that the removal was carried out in contravention of a tree preservation order. 114The fine imposed for the removal of trees from the public reserve was $35,000. The fines imposed for the two charges arising from removal of eight trees from the defendant's own land was $20,000 for the breach of development consent and $10,000 for breach of the tree preservation order. The defendant was found to be a man of good character; he had no prior convictions for any offence; he had cooperated with the prosecutor in relation to the offences and gave evidence, which was accepted, of his contrition and remorse. Further, the sentencing judge accepted that he had believed, albeit mistakenly, that he had obtained approval from the prosecutor for removal of trees from his own property. 115The fines ultimately imposed in that case were the result of application of the totality principle, it being accepted by the sentencing judge that all three offences arose from the one tree clearing event. The application of that principle to the determination of penalty, coupled with the subjective factors that were considered, demonstrates the difficulty of making a direct application of those penalties to the circumstances of the present case. 116Further, when imposing fines in Taheri, the sentencing judge took account not only of the quantum of legal costs payable by the defendant, estimated to exceed $80,000, but also the cost of implementing a revegetation program estimated to be nearly $35,000. Implementation of that revegetation program, which included both the planting of a number of trees in specified locations and the maintenance of all vegetation for a period of five years, was the subject of orders made by the sentencing judge on each of the three charges. The defendant had accepted implementation of the revegetation program as being an appropriate element of the overall penalty to be imposed, the Court's power to require it being found in s 126(3) of the EPA Act. 117In Gittany Constructions Pty Ltd v Sutherland Shire Council the Chief Judge dismissed a severity appeal from the decision of a magistrate in which a penalty of $20,000 had been imposed for removal of pockets of indigenous bushland from a residential site upon which building work was being undertaken, with a further penalty of $5,000 per tree for each of two trees separately growing on that same site. His Honour stated at [202] that considering each of the offences individually, he would have imposed a fine of $10,000 per tree for each of the two trees that were the subject of separate charge, with a fine of $45,000 for loss of bushland. Applying the principle of totality to the three offences, His Honour considered that the fines for individual tree loss would be reduced to $7,500 per tree. Although his Honour considered the appropriate aggregate penalty to exceed that imposed by the magistrate, as an appropriate warning had not been given to the appellant that his appeal might result in the increase of penalties from those imposed by the magistrate, he determined that it was appropriate to dismiss the appeals (cf Parker v Director of Public Prosecutions (NSW) (1992) 28 NSWLR 282 at 295). 118The final case to which reference was made in the present context is a further decision of the Chief Judge of this Court in Pittwater Council v Scahill [2009] NSWLEC 12; 165 LGERA 289. The defendant in that case who was a practising arborist, pleaded guilty to an offence under s 125(1) of the EPA Act. He had cut down two trees growing on Pittwater foreshore land owned by a client. The two trees were remnants of any endangered ecological community. The trees were cut down without prior consent, contrary to a tree preservation order. 119The Chief Judge determined that the offence was of "low to medium objective gravity": [89]. His Honour then considered the subjective circumstances of the defendant including his prior good character, lack of criminality, a plea of guilty, assistance to authorities and evidence given expressing his contrition and remorse. Evidence was also given, which his Honour accepted, that the defendant had limited capacity to pay any penalty. In the result, a fine of $11,000 was imposed, described by his Honour as "considerably less than otherwise would be the case" by reason of the defendant's limited capacity to pay. His Honour also took into account that the defendant was required to pay the Council's legal costs, estimated to exceed $13,000. 120I take these varying penalties into account, so far as they can be quantified as an aggregate sum, in determining the penalty appropriate to be imposed in the present case.

Appropriate penalty 121The circumstances of this case and the application to them of the purposes of sentencing to which I have earlier referred, render it appropriate that a conviction be recorded against the Defendant and a fine imposed. 122In determining the quantum of an appropriate fine, I take account of the objective circumstances of the offence as I have identified them. Mitigating those circumstances are those subjective factors pertaining to the Defendant that I have also identified, being those that were the subject of submission on behalf of the Defendant. Consideration of those subjective factors requires that a discount be applied to the penalty otherwise appropriate, including the Defendant's plea of guilty, but nonetheless a penalty proportionate to the objective gravity of the offence. 123When determining the appropriate penalty, I am required to do so by an instinctive synthesis of both objective and subjective factors (Markarian v The Queen [2005] HCA 25; 228 CLR 357; Muldrock v The Queen [2011] HCA 39; 244 CLR 120 at [26]). Applying that instinctive synthesis, I consider that an appropriate fine to be imposed is the sum of $40,000. 124In addition, the Defendant will be required to pay the Prosecutor's legal costs. The Defendant has agreed, in principle, that he should do so but the quantum of those costs has neither been indicated nor agreed.

Proceedings 12/50936 125The circumstances giving rise to the offence charged in these proceedings are the same as those arising in proceedings 12/50935. The Prosecutor offers no evidence in the present proceedings and accordingly the charge will be dismissed.

Orders 126In matter no. 12/50935 I make the following orders:

1. The Defendant is convicted of the offence as charged.
2. The Defendant is fined the sum of $40,000.
3. The Defendant must pay the Prosecutor's costs in the proceedings as may be determined pursuant to s 257G of the Criminal Procedure Act 1986.
4. Exhibits, other than Exhibit A, may be returned. 127In matter no. 12/50936 I make the following orders:
5. The charge is dismissed

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 01 July 2013