Ku-ring-gai Council v Nettcorp Pty Ltd

SOLICITORS Pigott Stinson Ratner Thom

JUDGMENT: IN THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES 50078 of 2002

13 August 2003 Ku-ring-gai Council Prosecutor v Nettcorp Pty Ltd Acn 063 769 184 Defendant Judgment

1 By summons filed on 8 August 2002 in proceedings 50078 of 2002, Ku-ring-gai Council ("the council") seeks an order that the defendant answer a charge that it committed an offence against s 125 of the Environmental Planning and Assessment Act 1979 ("the EP&A Act") in that the defendant carried out development between 9 February 2002 and 21 February 2002 otherwise than in accordance with development consent 445/99 ("the consent") dated 30 August 1999. The defendant entered a plea of guilty on 6 August 2003. 2 The consent related to the redesign of a car park and associated works at the St Ives Shopping Centre. Such development required the approval of the relevant authority, namely the council, pursuant to the Ku-ring-gai Planning Scheme Ordinance. St Ives Shopping Centre is located at 166-172 Mona Vale Road St Ives. St Ives Shopping Centre has another street frontage to 11-19 Cowan Road, St Ives which is hereinafter referred to as "the site". 3 The defendant is the site manager overseeing such development. The defendant was retained by the developer Simhilt Constructions Pty Limited. The defendant's responsibilities included the conduct of day to day operation of the site, the engagement and supervision of contractors and the processing of subcontractors' progress claims. The defendant held a contractor's licence, number 93374C, which has now expired. Mr David De Angelis is one of the two directors of the defendant.

4 Section 76A(1) of the EP&A Act provides:- s 76A Development that needs consent (1) General 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, and (b) the development is carried out in accordance with the consent and the instrument. 5 The council submits that the defendant has breached two conditions of the consent by removing ten trees from the site. The trees removed are identified as seven Casuarinas, one Acacia and two Eucalyptus Microcorys otherwise known as Tallowood.

6 The relevant conditions of the consent are condition 12 and condition 23. Condition 12 provides that:-

The works shall be erected in conformity with the approved plans and specifications and in accordance with the conditions of approval set out hereon. Alterations, modification or variations to these plans or specifications requires prior formal approval from Council. Condition 23 of such consent provides as follows:- Council's TREE PRESERVATION ORDER applies to the whole of Ku-ring-gai. This prohibits the ring-barking, cutting down, topping, lopping, removing, injuring or wilful destruction of any tree exceeding 5.0 metres in height or 4.0 metres in canopy spread except where written permission of Council has been obtained. Council's approval to this development application gives automatic approval to the removal ONLY of those trees located on the subject property within 3.0 metres of a proposed new dwelling, or within the perimeter line of the proposed new building (ie if this application is for a building other than a dwelling, then any tree within the actual area to be occupied by this building may be removed). Other trees SHALL NOT be REMOVED OR DAMAGED without an application being made under Council's Tree Preservation Order.

7 Pursuant to the consent a landscape plan was approved for the proposed car park extension. The plan clearly indicated the trees that were to be removed. Such trees were marked on the plan with a cross which, as shown on the legend on the plan, indicated removal. 8 In or about April 2001 Mr Benjamin Leacey, director of Soil to Sky Tree Management Pty Limited, prepared a quotation on behalf of Active Tree Services Pty Limited for the removal of a number of palm trees on the Mona Vale Road frontage of the St Ives Shopping Centre.

9 In December 2001, Mr Leacey received a telephone call from Mr De Angelis in which Mr De Angelis requested a quotation for the removal of the trees along the western boundary of the site. On 14 December 2001 Mr De Angelis and Mr Leacey met and Mr De Angelis showed Mr Leacey the location of building works and identified the trees which were to be removed. Mr De Angelis indicated other trees located on the southern boundary of the site, forming a barrier between the car park and residential development to the south which were to remain. Those trees were semi-mature and were in excess of 10 metres in height.

10 During the meeting Mr Leacey specifically asked Mr De Angelis the following question:- "What is council's view of these trees coming out?"

Mr De Angelis responded:- "We are still waiting on council approval."

Mr Leacey responded:- "We will need to see the approval."

Following the meeting with Mr De Angelis, Mr Leacey prepared a quotation which did not include the trees on the southern side of the car park. 11 In mid-January 2002, Mr De Angelis contacted Mr Leacey and said:- "I have some extra trees to take out at St Ives Shopping Centre." 12 On 18 January 2002 Mr De Angelis again met Mr Leacey on site. Mr De Angelis identified eight or nine She-oaks and Tallowoods along the southern boundary of the car park. Mr De Angelis said:- "The trees are going on this boundary." Mr Leacey asked:- "How is the approval progressing?" Mr De Angelis responded:- "We are still waiting."

At the request of Mr De Angelis, Mr Leacey compiled a revised quotation which included the removal of trees on the southern boundary. At the time of providing such quotation, Mr Leacey asked Mr De Angelis:- "When will you obtain approval for the removal of the trees?" Mr De Angelis responded:-

"I will give you a call when council says we are able to proceed."

13 During the week beginning 10 February 2002, Mr De Angelis contacted Mr Leacey and advised him that the work to remove the trees could proceed. As a result, it was arranged that the trees would be removed on 19 February 2002. 14 On the morning of 19 February 2002 a meeting took place between Mr Silvio Marucci of Silro Holdings Pty Limited which acts as building consultants for Simhilt Construction Pty Limited and Mr Brian Banning of the council. Mr De Angelis was also present. A conversation ensued concerning the imminent removal of the trees, and of the necessity to retain the trees on the southern boundary.

15 Later on 19 February 2002, Mr Philip Palmer attended St Ives Shopping Centre with Mr Craig Drew and Mr Grant Buchannan who had been subcontracted to remove the trees. Upon arrival, Mr Palmer said to Mr De Angelis:- "We are here from Active Tree Services to do the job, I need to see the paperwork beforehand." Mr De Angelis said:- "Sure, check this out."

Mr De Angelis then showed Mr Palmer a full size construction plan showing part of the St Ives Shopping Centre car park. There was a stamp on the plan, as recalled by Mr Palmer. Mr De Angelis said pointing to the trees on the western side:- "These are the trees referred to in the first quote."

Mr De Angelis then said:- "These are the additional trees that are to be removed."

He then indicated the trees on the southern boundary of the site. Mr Palmer noted that the trees which were the subject of the first quote were marked with a cross. Trees described by Mr De Angelis as "the additional trees" had not been marked as Mr Palmer asked:- "Could you mark the extra trees with a cross as well."

Mr De Angelis then marked ten trees on the southern boundary with an X, thereby indicating that approval had been granted for their removal. The trees on the west and southern boundaries were then removed. 16 Whilst there had been approval for the removal of the trees on the western boundary, no approval had ever been sought from nor granted by the council for the removal of the trees on the southern boundary.

17 The evidence in these proceedings has been confined to documentary evidence being an agreed statement of facts and the Ku-ring-gai Council Plan of Management St Ives Village Car Park. No oral evidence has been led from either party. Accordingly the Court is required to determine the sentence based upon the facts contained in these documents.

18 The ten trees on the southern boundary were each approximately 10 to 12 metres in height. They provided screening between the car park and the adjoining residences. The Ku-ring-gai Council Plan of Management St Ives Village Car Park which was adopted on 20 November 2001 shows that landscaping was regarded as a significant issue. Chapter 3.6 of such plan entitled "Landscape Values" states:- Issue

The areas covered by this Plan of Management include landscape areas which make a significant contribution to the landscape character of their immediate surrounds.

It is important the landscape potential of these areas be maximised through appropriate planting and landscape maintenance.

To maximise the landscape potential of the St Ives Village Car Park.

19 The defendant's conduct is puzzling. No explanation has been offered for the entirely bogus statements which he made to the tree loppers. The defendant did not appear, from the evidence, to have any personal interest in the removal of the trees on the southern boundary. The defendant has submitted that the trees may not have survived because of their proximity to a proposed wall. The defendant sought the services of an arborist, namely Mr Philip Packham B.Sc. (Ag), Assoc. Dip. of Hort., on 19 February 2002. It is an agreed fact that between 8am and 9am on that day Mr Packham attended the subject site and inspected the trees on the southern boundary. The Court has been provided with a copy of a report of Mr Packham dated 19 February 2002 stating that construction work could damage the root system of nine trees, resulting in the risk of damage to life or property and the possibility of litigation. Mr Packham told Mr De Angelis that the trees would need to be removed because they might be compromised by the development.

20 Mr Packham's report refers to the fact that he had examined the plans of the proposed extension to the bitumen paved and kerbed car parking area. His report makes no reference to a site visit. 21 The conduct of the defendant has not resulted from accident, inadvertence or negligence. Rather the conduct of the defendant has been deliberate as evidenced by the misleading information provided to the tree loppers. No approval had been sought for the removal of the ten trees on the southern boundary of the car park. However, the defendant was clearly aware that council approval was required. Penalty

22 When assessing penalty the Court is required to take into account various matters including those referred to in the Crimes (Sentencing Procedure) Act 1999 ("the Sentencing Procedure Act"). Section 21A of such Act specifies the criteria to which the Court must pay regard to when sentencing. Section 21A(2) of the Sentencing Procedure Act refers to aggravating factors. 23 Relevantly, in this case, the matter which the Court takes into consideration is whether the loss or damage caused by the events was substantial (see s 21A(2)(g) of the Sentencing Procedure Act). Additionally, whilst the Court notes that such Act does not specifically relate to the circumstance, the Court can take note of the fact that the action was deliberate and contrived.

24 The Court finds that in the circumstances the damage to the environment was substantial in view of the specific requirements of the Ku-ring-gai Council Plan of Management St Ives Village Car Park. Mr Packham said that it is possible that the trees might not have survived. He did not say that the trees would not have survived. Accordingly, the Court cannot find, as a mitigating factor, that the trees would not have survived.

25 The Court is also required to take into account various mitigating circumstances pursuant to s 21A(3) of the Sentencing Procedure Act. The defendant has had no prior convictions and is of good character, which may be construed as a reference to being of "otherwise good character", as considered by McHugh J in Ryan v The Queen (2001) 206 CLR 267 at p 275.

26 The Court must take into consideration that the defendant pleaded guilty to this charge. The Court notes that the summons was filed on 8 August 2002 but the plea of guilty was not made until almost twelve months later and approximately one week before the hearing. The Court accepts that the plea of guilty has resulted from the fact that charges, which were instituted by the council against other defendants, were withdrawn when their co-operation was forthcoming. The Court infers that the defendant decided to change his plea as a result. 27 The principle referred to in R v Thomson; R v Houlton (2000) 49 NSWLR 383 which permits reduction in penalty for a plea of guilty must be carefully considered. The reduction is usually awarded in recognition of the fact that a plea of guilty would serve a utilitarian purpose. In R v Thomson at p 416 Spigelman CJ referred to Winchester v The Queen (1992) 58 A Crim R 345 in which Hunt CJ said at p 350:- The extent to which leniency will be afforded upon this ground will depend to a large degree upon whether or not the plea resulted from a recognition of the inevitable Spigelman CJ then observed:- A "recognition of the inevitable" may qualify the extent of genuine contrition. It does not qualify the utilitarian value of a plea.

28 The Court is satisfied that the plea of guilty was entered only in view of the fact that the proceedings against other parties had been resolved. 29 As was observed by this Court in Holroyd City Council v Skyton Developments Pty Limited (2002) 119 LGERA 225 a breach of a tree preservation order is a serious offence and a breach of a condition to the same effect contained in a development consent attracts the same culpability: see Ryde City Council v Calleija (1998) 99 LGERA 360. Where offences are foreseeable and result from actions other than negligence and were intended, the Court draws the inference that the degree of culpability is high: see Majury v Sunbeam Corporation Ltd (1974) 1 NSWLR 659 at p 664.

30 The Court finds that there is very little by way of mitigation or exculpation to warrant leniency. The conduct of the defendant was blatant, contrived and deliberate. In cases such as this, the penalty must reflect an element of general deterrence since the offence constitutes a significant breach of the planning law: see Cooper v Coffs Harbour City Council (1997) 97 LGERA 125 at p 143.

31 The maximum penalty for this offence is 10,000 penalty units or $1,100,000. In the circumstances, the Court considers that the appropriate penalty is a sum of $40,000. It will be reduced, in view of the plea of guilty, by $5,000 to $35,000.

32 Accordingly, the Court makes the following orders:- 1. The defendant is convicted as charged; 2. The defendant is ordered to pay a fine of $35,000; 3. The defendant is to pay the prosecutor's costs in such sum as may be agreed or otherwise assessed in accordance with the regulation made pursuant to the Land and Environment Court Act 1979; 4. The exhibits be returned.

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.