Ryde City Council v Craig Fry

Active Tree Services Pty Limited v Ku-ring-gai Municipal Council [2005] NSWLEC 431; Cameron v Eurobodalla Shire Council (2006) 146 LGERA 349; Cobiac v Liddy (1969) 119 CLR 257; CASES CITED: Gittany Constructions Ltd v Sutherland Shire Council (2006) 145 LGERA 189; R v Ingrassia (1997) 41 NSWLR 447; R v Thompson (2000) 49 NSWLR 383; Ryde City Council v Gavan Guo Xu [2003] NSWLEC 146; Thorneloe v Filipowski (2001) 52 NSWLR 60

PROSECUTOR Mr M Hewett (solicitor) SOLICITORS Pike Pike & Fenwick LEGAL REPRESENTATIVES: DEFENDANT Mr J Johnson SOLICITORS McKees Solicitors

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

JUDGMENT Jagot J: 1 The defendant, Craig Fry, has pleaded guilty to lopping a tree without consent, being an action forbidden to be done by a tree preservation order adopted by Ryde City Council and thereby committing an offence under s 125(1) of the Environmental Planning and Assessment Act 1979. I must now determine the sentence to be imposed on the defendant.

2 The prosecutor and the defendant tendered an agreed statement of facts.

3 The statement records the terms of cl 41 of the Ryde Planning Scheme Ordinance as follows: 41. (1) Where it appears to the responsible authority that it is expedient for the purpose of securing amenity or of preserving existing amenities it may, for that purpose and by resolution, make an order (hereinafter referred to as a "tree preservation order") and may, by like resolution, rescind or vary the order. (2) A tree preservation order may prohibit the ringbarking, cutting down, topping, lopping, removing, or injuring or wilful destruction of any tree or trees specified in the order except with the consent of the responsible authority and any such consent may be given subject to such conditions as the responsible authority thinks fit. (3) A tree preservation order may relate to any tree or trees or to any specified class, type or description of trees on land described in the order and that land may be described particularly or generally by reference to the municipality or any divisions thereof.

(4) The responsible authority shall forthwith upon the making of a tree preservation order cause notice of the making of the order to be published in the Gazette and in a newspaper circulating in the locality in which the land described in the order is situated. (5) A person who contravenes or causes or permits to be contravened a tree preservation order shall be guilty of an offence. (6) In any proceedings under this clause it shall be sufficient defence to prove that the tree or trees ringbarked, cut down, topped, lopped, removed, injured or wilfully destroyed, was or were dying or dead or had become dangerous. (7) The powers conferred upon the responsible authority by this clause shall not extend to any trees within a State Forest or land reserved from sale as a timber reserve under the Forestry Act, 1916 .

4 According to para 2 of the statement, the Council made a tree preservation order with respect to all trees over the height of three metres in the City of Ryde. The tree preservation order prohibits the ringbarking, cutting down, topping, lopping, removal or wilful destruction of a tree or trees without the consent of the Council or except as provided for in cl 41(6) of the Planning Scheme Ordinance.

5 The defendant owns the property known as 63A Wharf Road, Melrose Park, in the City of Ryde. 63A Wharf Road adjoins a public park known as Jennifer Park.

6 On 10 January 2006 the Council's asset management officer attended Jennifer Park and observed two men pulling on a rope attached to a half cut branch of a tree, being an Angophora costata (Sydney Red Gum) approximately 11 metres in height. When the officer approached, the men walked into the rear yard of 63A Wharf Road and the defendant then approached. The asset management officer and the defendant had a conversation as follows. Officer: What do you think you are doing? Defendant: Cutting the tree down, cutting off the branches. Officer: What is your name? Defendant: Craig Fry. Officer: This is a park. You cannot do that! Defendant: I rang the Council and they told me I could. They said I could cut the branches over hanging my property. Officer: Who at the Council? Defendant: I do not know - someone at the Council. Officer: If you told them the tree you were going to cut is in a park, they definitely would not have said that you could prune it. They have obviously assumed you meant a neighbour's tree and in that case they would have advised you that you must complete a Notice of Intent and that you should speak with your neighbours. They certainly would not have advised you that you could cut trees in a park. If you had telephoned the Council and said the tree was in a park, the Council would have come down and cut it for you. Defendant: You are joking. Officer: No. We would have inspected the tree and if deemed necessary, the Council would have done the trimming. But it would not have been done to the extent that you have done it. You have ruined this tree! Defendant: We have not finished yet. We were going to tidy the stubbs up. Officer: No. You are not going to do anything. Take the ladder down and do no more pruning. You will be hearing from the Council by letter advising of any action it may consider appropriate.

7 The asset management officer then arranged for the Council's arborist to attend. The arborist observed that the tree was approximately 11 metres in height with a diameter at breast height of 410 millimetres and in excellent vigour with no major dead wood, dieback or visible defects. About 35 to 40% of the tree's foliage had been removed and five limbs had been lopped in a poor manner. The arborist pruned the branches back to their correct collar and removed the debris. Photographs show the extent of the lopping caused to be carried out by the defendant and the further pruning by the arborist.

8 The Council wrote to the defendant on 16 January 2006 seeking the defendant's written explanation of his conduct. The defendant responded on 20 January 2006 as follows: I am writing to you with regards to enquiry 3/2006, dated 16th January 2006. The Sydney Red Gum in question that overhung my fence line has been dropping significantly large sized branches in my backyard for some time now and I am concerned about the safety of my 3 year old son. In addition to this, the tree's general foliage of leaves, branches and gumnuts have been blocking my pool cleaner. I was under the belief that residents were allowed to prune back any part of a tree that overhung their property, and so on the day of 10th January I started to prune the overhanging tree. Your Asset Management officer turned up and informed me that I needed permission to do so and I stopped all pruning at once. Again I say that I believed that permission was not necessary as the tree parts I was pruning were hanging over my fence. I sincerely apologise and ensure you that I will seek Council permission if I ever need to do pruning again.

9 It is agreed that the defendant did not have the consent of the Council for the lopping of the tree, which was required, and that the Council did not know the defendant with respect to any prior convictions.

10 The defendant tendered two references, both identifying the circumstances of the defendant's guilty plea to the offence charged. The first reference was from the executive director of the Crusader Union of Australia, a not for profit Christian organisation. This reference identified that the executive director had known the defendant for over 15 years. It observed that the defendant was a community minded person who acts with consideration for others and had entered a guilty plea as a mark of his willingness to accept responsibility for his action. The defendant had worked for many years for the Crusader Union of Australia including with children, community groups and churches. The defendant has contributed his time and effort as a volunteer in Australia and overseas. He has carried out charity work in India and has worked tirelessly on camping programmes for children in Australia and the United States of America, including working as a first aider and as a first aid instructor for community groups.

11 The second reference is from the senior pastor of the Christian City Church, Carlingford. That reference identified the defendant as a person of integrity, honesty and hard work; a tireless worker with youth, having at his own expense over many years encouraged, led, supported and counselled young people; and an effective role model and communicator. The letter also noted that the defendant was generous with his time and effort and, at his own expense, had assisted in development works in India using his skills as a builder.

12 The defendant's tax return for the year ending 30 June 2006 shows the defendant's taxable income as $13,614. The defendant expects a greater income this year in the order of $30,000 to $35,000. The previous year he apparently purchased equipment to enable him to carry out larger building jobs. Presently the largest building job the defendant has undertaken was for an amount of $12,000. The defendant is married with one child aged five and another child due in November. His wife presently works three days a week but will soon be leaving the workplace. He and his wife own their own home but subject to a mortgage of $227,000 which involves repayments of $1,800 per month.

13 The solicitor for the Council submitted that the facts were similar to those which arose in Ryde City Council v Gavan Guo Xu [2003] NSWLEC 146, where Cowdroy J imposed a fine of $7,500. The Council also emphasised that, in environmental matters, considerations of general deterrence in particular meant that the exercise of discretion under s 10 of the Crimes (Sentencing Procedure) Act 1999 dismissing a proven charge, conditionally or otherwise, was rare. The Council in this context referred to the observations of Pain J in Active Tree Services Pty Limited v Ku-ring-gai Municipal Council [2005] NSWLEC 431 at 48. It also submitted that responsible citizens should be aware of their obligations to obtain consent for lopping trees, particularly in this case given the magnitude of the lopping carried out by the defendant. The Council referred to the range of penalties for offences of this or a similar character as set out in Cameron v Eurobodalla Shire Council (2006) 146 LGERA 349.

14 Counsel for the defendant made the following submissions. (1) The maximum penalty of $1.1 million covers a potentially vast range of offences.

(2) The lopping was limited to branches overhanging the defendant's garden.

(3) Although the agreed facts referred to the lopping being carried out in a poor manner, it is also evident that the defendant had not completed the lopping as intended.

(4) There was no suggestion that the tree did not remain in good health after the lopping.

(5) The visual impact of removal of the branches and foliage was primarily from the defendant's own property.

(6) There was no suggestion in the evidence of any potential impact on threatened species or an endangered ecological community.

(7) The conversation between the Council officer and the defendant as set out above contains some evidence that the Council itself would have lopped the branches of the tree in the circumstances specified, albeit not to the same extent.

(8) While the defendant had acted deliberately, the circumstances of the defendant's actions were that: (a) the defendant was not expressly instructed not to undertake the lopping;

(b) the defendant immediately admitted his involvement in the lopping;

(c) the conversation between the Council officer and the defendant disclosed that the defendant was not aware that he needed consent to lop tree branches where those branches overhung his own property;

(d) the defendant made the admission of his involvement both in the conversation and in the letter unreservedly;

(e) in his letter the defendant immediately and unreservedly apologised for his conduct and assured the Council that he would not repeat any such action in the future; and

(f) the defendant's actions were primarily motivated by safety concerns as his letter discloses. (9) The defendant is a person of modest means, which is a relevant factor under s 6 of the Fines Act 1996.

(10) The defendant was clearly a person of good character as identified in the two references, particularly having regard to the defendant's various charity work, some of which had been carried out at his own expense.

(12) The defendant had entered an early guilty plea and made no changes at all to the Council's proposed agreed facts;

(13) The defendant co-operated at all times with the Council, stopping the work immediately when requested, as well as responding to the Council's request for an explanation, entering the guilty plea in the proceedings and agreeing to the statement of facts.

(14) The defendant had agreed to pay the prosecutor's costs in the amount of $4,500.

(15) Finally, the defendant's conduct overall showed his sincere contrition and remorse.

15 While the defendant's counsel acknowledged that a discharge under s 10 of the Crimes (Sentencing Procedure) Act was rare for such offences, the circumstances of this case, it was submitted, made it open for the Court to exercise its discretion in the defendant's favour. In particular, it was submitted that the Court would accept that no personal deterrence was required. Otherwise, consistency in sentencing and the defendant's means to pay had to be taken into account if a conviction were to be recorded and a fine imposed. The defendant's counsel also provided a thorough analysis of the facts in Cameron, Xu, Active Tree Services and Gittany Constructions Pty Ltd v Sutherland Shire Council (2006) 145 LGERA 189. I do not consider it necessary to repeat that persuasive analysis other than to observe that in Xu, the decision on which the Council most heavily relied, the defendant had lopped the entire top section of a tree located in a public reserve, being some 7.2 metres of the tree. He had done so to improve his own views. He apparently stopped only when the police intervened. There was no evidence about the defendant's means to pay, although there was evidence that the defendant held a senior position, from which the Court inferred that he would have the means to pay a fine.

16 In deciding whether to make an order referred to in s 10(1), the Court is to have regard to the following factors: (1) the person's character, antecedents, age, health and mental condition;

(3) the extenuating circumstances in which the offence was committed, and

(4) any other matter that the Court thinks proper to consider.

17 I accept that the defendant is a person of good character. He has no prior convictions. The references to which I have referred above identify his generous work on behalf of charity over many years, and his significant and commendable involvement in the community. The defendant is a married man with a young family. The offence, however, was not trivial. In particular, the tree was located on a public reserve. It is a relatively large tree in good health. The lopping took two men to carry out and involved the removal of five branches of obviously not insignificant size, having regard to the photographs, and resulted in removal of about 35-40% of the tree's foliage. There are extenuating circumstances. The defendant's lopping was limited to the branches overhanging his own property. I accept that the defendant was motivated primarily by safety concerns about the dropping over the overhanging branches, given that he has a young child.

18 The defendant was not called to give evidence. Given the terms of the conversations set out in the agreed facts, I can make no finding one way or another whether the defendant was in fact advised by some person at the Council that he could lop overhanging branches without consent. Be that as it may, I accept that the defendant mistakenly thought he could lop branches provided they were overhanging his own property. The defendant, as his counsel submitted, promptly ceased the lopping when requested, unreservedly admitted his involvement, and unreservedly apologised in his written explanation to the Council. His explanation to the Council was consistent with his mistaken belief that he could lop the overhanging branches without consent and confirms that the defendant's primary motivation was safety concerns. I accept that the defendant is most unlikely to re-offend and that specific deterrence considerations are of limited materiality.

19 In Thorneloe v Filipowski (2001) 52 NSWLR 60, Spigelman CJ observed that the discretion under s 10 is wide but must be exercised judicially. The purpose of the section is ameliorative, allowing the "rigidity of inexorable law" to be tempered, recognising that the "legal and social consequences of being convicted of an offence often extend beyond any penalty imposed by a Court" (citing, respectively, Cobiac v Liddy (1969) 119 CLR 257 at 269, and R v Ingrassia (1997) 41 NSWLR 447 at 449). In Thorneloe, the Court discharged the defendant having regard to the defendant's absence of fault and the fact that he could not have done anything to prevent the offence. Those facts are obviously different from the present case as here the defendant was at fault by carrying out the lopping without the required consent.

20 In all of the circumstances I am not satisfied that the defendant should be discharged under s 10. While there are strong mitigating factors in the defendant's favour, which I have recorded above, the tree was a large healthy specimen on a public reserve. The public status of the land is a material factor (see Cameron v Eurobodalla Shire Council at [58]). So too is the magnitude of the lopping carried out. The lopping, as I have said, involved five branches of obviously not insignificant size and removed some 35-40% of the tree's foliage. Considerations of general deterrence are also relevant.

21 I am satisfied that the objective seriousness of the defendant's offence was materially lower than the facts considered in Xu and bears no real resemblance to those considered in Cameron, Active Tree Services or Gittany.

22 The subjective considerations in this defendant's favour are very substantial. Specifically, there were no aggravating circumstances within the meaning of s 21A(2) of the Crimes (Sentencing Procedure) Act. There are significant mitigating factors including, in particular, the absence of any prior convictions (relevant under s 21A(3)(e)), the defendant's good character (relevant under s 21A(3)(f)) and the defendant's early plea of guilty (as provided for in s 21A(3)(k)). The defendant's modest means and agreement to pay the Council's costs must also be taken into account. The defendant should be afforded the 25% discount on account of the utilitarian value of his early entry of a plea of guilty, R v Thompson (2000) 49 NSWLR 383 at 151-161. Taking into account the 25% discount, I am satisfied that a penalty of $1,500 appropriately reflects the relevant circumstances.

23 Mr Fry, please stand. The Court's orders are: (1) The defendant is convicted of the offence charged.

(3) The defendant is ordered to pay the prosecutor's costs agreed in the amount of $4,500.

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