Manly Council v Taheri

Manly Council v Taheri - [2008] NSWLEC 314 - NSWLEC 2008 case summary — Zoe

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The manner of contravention by the Defendant 7 The Defendant was present on the land when the development was carried out. He directed and authorised contractors and/or servants to carry out the land clearing works. The persons who carried out those works did so on behalf of the Defendant. 8 A Statement of Agreed Facts (SOAF) was prepared which states the following: 1. Lots 2 and 3 in DP1110862 are within the local government area of Manly Council (the Prosecutor). 2. Lot 2 in DP1110862 (Lot 2) is owned by Veeda Taheri, the Defendant's wife. 3. Lot 3 in DP1110862 (Lot 3) is a harbour foreshore reserve owned by the Prosecutor. 4. Trees were removed, under instruction of the Defendant, from both Lots 2 and 3 in DP1110862. 5. The Prosecutor's TPO applies to all private lands within the Prosecutor's Local Government Area. 6. The Prosecutor's TPO applies to Lot 2 in DP1110862. 7. The Defendant did not obtain consent under the Prosecutor's TPO for the removal of the trees on Lot 2. 8. Lot 3 is zoned Open Space under the LEP. Clearing of land is prohibited on land zoned Open Space under the LEP. 9. Lot 2 is private land and is zoned 2 residential under the LEP. Clearing of land on Lot 2 requires development consent under the LEP. 10. The Defendant did not obtain development consent for the clearing of land on Lot 2, under the LEP. Early Guilty Plea 11. The Defendant entered a plea of guilty at the first appropriate opportunity to all three offences. Cooperation 12. The Defendant offered to cooperate with the Prosecutor in relation to their investigations in relation to the offences No Prior Conviction 13. The Defendant has no prior convictions in any jurisdiction. Development Application 14. On 26 May 2007 a development application was lodged with the Prosecutor in relation to Lot 2 and 3 (DA). 15. The DA sought consent to construct a dwelling on Lot 2 and carry out landscaping works on Lot 2 and Lot 3. 16. The DA had been recommended for approval, subject to conditions, by the Prosecutor's development assessment unit. 17. The DA is yet to be determined by the Prosecutor. Development Consent - 85 Gurney Crescent 18. 85 Gurney Crescent is two allotments to the north of Lot 2. 19. 85 Gurney Crescent adjoins Middle Harbour.

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19 On his arrival, Mr Beatty noticed large amounts of vegetation and tree trunks lying on the footpath outside the site and on Council owned lands adjoining and below the subject site. The Defendant introduced himself to Mr Beatty upon his return to the site and said that he had permission from Council "to remove the trees in the DCP document". He said he had visited the Council and that "one of the planners has outlined to me the trees that could be removed under the DCP." Mr Beatty replied by stating what the effect of the DCP was and that a DA, which the Defendant had not lodged, was required to remove trees over 5m in height. The Defendant said he thought that, given the DCP, he did not need approval and that the land was purchased from the Department of Planning, which said there were no issues with removing trees. Mr Beatty replied that he did not believe that to be the case. The Defendant then pointed to a tree stump, stating the Department had removed the tree there, and that he had taken photographs of the trees in order that he would not be blamed for the removal of this tree. Mr Beatty explained the effect of the Council's TPO, that a breach had occurred and that prosecution was likely. The Defendant said that his "men" felled the large trees and "they let the trees fall taking down smaller trees below them as they fell". He admitted he did the wrong thing and accepted responsibility while also asking for leniency as he thought he had permission. He also stated that he wanted to finish removing the rest of the felled trees from the site. Mr Beatty replied that he could not continue to fell trees but that he needed to collect felled trees that had fallen into the water to prevent their floating away. The Defendant agreed. Grant Mayhew 20 Mr Grant Mayhew, landscape gardener, swore an affidavit dated 1 July 2008. He had been landscaping at 85 Gurney Crescent at the time of the commission of the offence. At approximately 9.00am on 10 December 2007 he drove past 81 Gurney Crescent and observed eight men with chainsaws, a crane and a number of felled trees on the site. The trees had been chopped down "to the first relatively level area". After arriving at 85 Gurney Crescent, Mr Mayhew continued to observe the site, being only two blocks away, and saw that the men continued to cut down trees, apparently in a hurry as nobody removed the felled trees. Mr Mayhew stated that it appeared to him that the men were trying to cut down as many trees as possible. He stated that he was concerned with the way the trees were being removed, having worked with arborists, and that the men appeared not to have any regard to safety. Mr Mayhew left 85 Gurney Crescent at about 11.00am, by which time the majority of trees had been cut down on the site. He stated that the men continued felling trees on the lower portion of the property closer to the water.

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22 In oral evidence he stated that he was not aware that a DA had been lodged for 81 Gurney Crescent and had not seen the development assessment unit report which referred to Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005 and recommended approval of the proposed development. Nick Nelson 23 Mr Nick Nelson, arborist, swore an affidavit dated 11 July 2008 and gave oral evidence. His report dated (incorrectly) 1 February 2008, annexed to his affidavit, identified after reviewing the tree stumps on the land by likely size, species and condition trees that were removed recently from 81 Gurney Crescent. Mr Nelson made site inspections on 1 and 4 February 2008 (4 February 2008 was the correct date of the report). He was guided by a survey dated 1 February 2008 of trees removed with indicative relative diameters prepared by Warren Eldridge and Associates, registered land and engineering surveyors. A total of 68 "freshly cut" stumps were located during the survey. Mr Nelson found all of the stumps on 81 Gurney Crescent were from healthy and viable trees with only minor decay in the root of one angophora. The large trees on the private land would have been subject to the Council TPO. The overall canopy coverage had been high before removal and the block was typical of the vegetation for the area, being a valuable resource for fauna and seed for regeneration. 24 Mr Nelson prepared a list of 68 trees which identified 12 trees that would have been above 5m in height and in excess of 280mm in diameter and therefore subject to the TPO for the private land. (I note the TPO states it applies to trees in excess of 250mm in diameter. This mistake has no impact on his evidence of which trees were within the TPO description.) The balance of the trees identified were 5m or less. When cross-examined about the time period in which the trees were cut down he estimated these were cut down sometime in the previous six months before his inspection in February 2008. He was confident that he had correctly identified all the tree species. He was questioned in relation to Dr Clements' finding that one tree was a different type of tree to that identified by him. He said they identified the same species but had identified different types of tree within that species.

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44 In cross-examination the Defendant stated that he was not aware of a TPO but had heard from time to time that one needed permission to cut down trees. He did not notice that the s 149 certificate attached to the contract for sale of 81 Gurney Crescent referred to a TPO. He knew he did not have permission to cut down trees on the foreshore reserve. The trees on the foreshore reserve were cut down when damaged by a fallen limb from a large angophora also on the public reserve on the southern boundary of lot 2 (shown in photograph 32). He was concerned the trees could damage boats near the water's edge and anyone walking through the reserve. His main concern was public safety. He cannot recall saying that to the Council officers who came to the land on 10 December 2007. He then recalled that he did say that to one of the officers although that was not in his affidavit. He denied that Ms Smith told him he was cutting down trees on the Council reserve or that he told her it was all about the view. He stated that the proposed house plans included a landscape plan for the property which provided for extensive revegetation. The proposed house design is for an elevated three storey building which was set above the treeline of the small trees that were cut down. The plan includes planting larger trees than were previously on the property and reserve and any view gained will be lost over time when these trees grow. He denied that his affidavit evidence was filed late to prevent the Prosecutor checking the identity of the unnamed Council planner he saw at the Council chambers. He agreed he knew he had no right to cut down trees in the public reserve. The very large limb cut off the angophora on the public reserve fell in a way that damaged many other trees. That large limb was damaged by other trees falling on it. He did not think to call the Council when the problem arose. Purposes of sentencing 45 The offences charged are strict liability offences. It is not part of the elements of the offence that the Defendant intended to commit the offence. Section 3A of the Crimes (Sentencing Procedure) Act 1999 (the CSP Act) identifies the purposes of sentencing. It states: The purposes for which a court may impose a sentence on an offender are as follows: (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, (c) to protect the community from the offender, (d) to promote the rehabilitation of the offender, (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. 46 Section 21A of the CSP Act identifies numerous matters which a court must take into account when sentencing including in relation to aggravating (s 21A(2)) and mitigating (s 21A(3)) factors.

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74 Mr Nelson's evidence is that all the trees identified in the survey and listed in the table in his evidence were likely to have been knocked over within the last six months before his inspection in February 2008. That evidence introduces an element of uncertainty as to when all the trees were cut down. This period extends back before the auction on 26 September 2007 and encompasses the period when bush regeneration work was done as referred to in Ms Smith's evidence. The evidence of Ms Smith establishes that no tree removal took place as part of that work. There is no evidence of any other work being done on either lot 2 or lot 3 in the six month period before February 2008 apart from the tree clearing on 10 December 2007. The Defendant did refer to one of the photographs attached to Ms Ida Taheri's affidavit which shows a large log on the ground to suggest that the Council might have done some work. The log is rotted and looks as if it has been there for quite some time, easily more than six months. That evidence does not suggest further work occurred in relation to the cutting down of trees in that six month period. 75 That there were substantial numbers of trees knocked over on 10 December 2007 can be inferred from the evidence of Ms Smith and Mr Mayhew who saw numerous trees being removed in haste by a group of about eight men over several hours in the morning of 10 December 2007 from at least 9am to shortly after 1pm. The Council officers Ms Reid and Mr Beatty attended the site on 10 December 2007. Ms Reid ordered work to stop at about 1.20pm. Ms Reid states that she saw 15 tree stumps on the land by which I infer she referred to lots 2 (private land) and 3 (public land). The photographs attached to Ms Reid's affidavit show no trees on lot 2 and lot 3 in that section of lot 3 down to the harbour's edge after the tree clearing on 10 December 2007. Mr Beatty states he saw large amounts of vegetation and tree trunks on the footpath outside lot 2 and on Council land adjoining and below lot 2 on 10 December 2007.

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89 In matter no 50033 of 2008, considering the Defendant's state of mind in relation to carrying out development without consent, the Defendant explains his actions by relying on his mistaken belief that the DCP provided approval for the removal of all trees other than the two identified on the land at p 59 of the DCP. I accept the Defendant's evidence that he did attend the Council chambers, spoke with a planner and that he believed that he did not require further development consent to knock down trees other than the two identified in the DCP. The mistake is a stupid, but honest, one. 90 I have given the Defendant the benefit of the doubt in so finding given the very late disclosure by him in his affidavit dated 24 October 2008 served on the Prosecutor the day before the sentence hearing that he had attended the Council chambers and spoken to an unidentified planner and understood that was the advice he had received. In cross-examination the Defendant was asked if he could identify the planner at the Council chambers and he said he could do so easily. When asked why he had not he said his solicitor had not asked him to. I note that the Prosecutor did apply for leave to call evidence from a Council planner who fitted the description provided by the Defendant of the person that he spoke to at the Council. After discussion that application was not pressed at the hearing so that the Prosecutor ultimately did not lead evidence to challenge the Defendant's evidence on this aspect. There was otherwise nothing in the Defendant's evidence which suggested that he was untruthful in stating the nature of the advice that he believed he received from the unknown Council planner. As recorded in Mr Beatty's affidavit and his affidavit (in slightly different terms) he also told Mr Beatty, Council officer, at 81 Gurney Crescent on 10 December 2007 that a Council planner told him that he had permission to cut down trees. It is of course highly unlikely that is the advice he actually received from the Council planner as it is clearly incorrect, as would have been apparent had he read the copy of the DCP that he purchased at the Council chambers. 91 In relation to matter no 50032 of 2008 concerning the felling of trees in breach of the TPO, the Defendant stated he was unaware that a TPO applied to lot 2. The well known statement that ignorance of the law is no excuse certainly applies given that there is a clear reference to the TPO in the DCP (at p 37) and in the s 149 certificate which would have formed part of the contract for sale for the land. The Defendant has lived in Australia for about 30 years in several locations in Sydney. Had he made proper inquiries at the Council or read the DCP it is highly likely he would have been either told of or become aware of the TPO. The extent of culpability in this circumstance is high.

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ANNEXURE A 1 In respect of the Lot 2 in DP 1110862, the defendant, whilever he has an equitable interest in that land, is to implement all requirements in respect of landscaping imposed pursuant to the development consent granted by the Manly Independent Assessment Panel on 20 November 2008 in determination of DA No. 169/08, such requirements to be implemented by the defendant prior to the issue of an occupation certificate in respect of the approved building. 2 In respect of Lot 3 DP 1110862, the defendant is to comply with each of the following orders. 3 Within 3 weeks of the date of this order, the defendant is to retain a suitably qualified bushland regeneration consultant. The person so retained is to be a member of the Australian Association of Bushland Regenerators and must hold minimum qualifications of a TAFE Certificate Level III in Conservation and Land Management. The person so retained must be provided with a copy of this order and its annexed Tree Location Sketch. 4 By no later than 31 January 2009, the defendant is to cause the following trees to be planted in the locations identified in the Tree Location Sketch annexed hereto and marked "A": a. 7 Angophora costata - one in each of the locations depicted as T7, T8, T11, T13, T 14, T16 and T17 on the Tree Location Sketch, each to be of a size of 45 litres and a minimum height of 2.2 metres at planting; b. 2 Ficus rubigniosa - one in the location depicted as T12 on the Tree Location Sketch and another in the location depicted on the Tree Location Sketch as a circle highlighted in yellow and marked "67", each to be of a size of 45 litres and a minimum height of 2.2 metres at planting; c. 2 Eucalyptus piperita - one in each of the locations depicted on the Tree Location Sketch by the circles highlighted in yellow and marked respectively "57" and "60", each to be of a size of 45 litres and a minimum height of 2.2 metres at planting; and d. 5 Allocasuarina dystyla - one in each of the locations depicted on the Tree Location Sketch as T1, T2, T3, T4, T5, each to be of a size of 45 litres and a minimum height of 1.2 metres at planting. 5 By no later than 31 January 2009, the defendant is to cause the planting of understorey vegetation to be undertaken on Lot 3 DP 1110862, utilising only local indigenous native shrubs and groundcovers - species and number to be selected by the said bushland regeneration consultant with the objective of emulating native understorey in comparable local indigenous bushland. 6 The defendant is to ensure that the said bushland regeneration consultant is retained to attend and supervise the planting regime referred to in the preceding orders and that the recommendations of the said bushland regeneration consultant are implemented unless contrary to these orders. The defendant is to forward to the Prosecutor reports from the bushland regeneration consultant no less than once every six months. 7 The defendant must maintain the said trees and understorey vegetation for a period of 5 years to the satisfaction of the said bushland regeneration consultant, who is to be retained for the duration of the 5 year maintenance program to attend the site and make any appropriate recommendations at least once every 6 months for the 5 year period. In the event that the said bushland regeneration consultant becomes unavailable during the said period, the defendant is to retain another suitably qualified person in accordance with paragraph 3 of these Orders - to complete the process. 8 Such further or other order as the Court deems appropriate.

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