Shoalhaven City Council v De Battista

Background

1. The land where the relevant trees are alleged to have been removed has been the subject of a number of different development consents. All consents in evidence contain conditions restricting the removal of trees from the land, but in different ways.
2. The earliest consent was in 2001, the latest was in 2011 as consolidated in October 2016.
3. The 2001 consent has been referred to in the evidence as the Manufactured Home Estate (MHE) consent. It approved the construction of a manufactured housing estate comprising 23 sites. It was not a consent for subdivision. It was modified on a number of occasions, including 6 September 2001, 20 November 2001 and 29 June 2002. There is no record in Council documents of any approval for removal of trees pursuant to this consent.
4. It is the Council's case that this consent had lapsed. If it was in force, it is argued that the onus lies on the defendant to prove that the tree removal was lawful under this consent. The defendant argues that this consent was still in force, and that he bears no onus.
5. A 5 lot subdivision consent was granted on 8 February 2007 (SF9795) and modified on 11 August 2015 (the "first subdivision consent"). It was later modified and subsequently consolidated incorporating all modifications. It is annexure K to Ms Dalyell's affidavit. Lot 1 is only part of the land to which this relates. A subdivision construction certificate was issued in relation to this subdivision consent on 8 August 2008. It attached certified plans and specifications which included conditions related to tree and vegetation removal which appear in very small type on page 95 of the annexures to Exhibit 1. They mirrored the conditions in the original consent.
6. On 21 June 2010 a development application DA06/1667 was approved for staged construction of 10 medium density units. That is annexure J to the affidavit of Ms Dalyell. That consent lapsed on 21 June 2015.
7. Development consent SF10111 for the creation of seven lots was originally granted on 30 May 2011 and subsequently amended on 11 August 2015 and 13 October 2016, creating a consolidated consent. That has been referred to as "the second subdivision consent". On 22 June 2012 a subdivision construction certificate was issued pursuant to this consent, which is annexure M to Exhibit 1. That contains clearing notes which refer to removal of vegetation to allow "the site to be managed as an inner protection area in compliance with condition 5 of SF 10111 and in accordance with section 4.1.3 and appendix 5 of Planning for Bushfire Protection 2006" (at page 97 Exhibit 1).
8. On 28 May 2012 Council approved subdivision clearing works in terms set out in a letter which is annexure O to Exhibit 1. That approval was expressed to be current until 28 May 2014.

What are the elements of the offence alleged, and where does the onus of proof lie in relation to each of them?

1. This is a strict liability offence, the intention of the defendant in relation to any activity proved is generally speaking irrelevant. No issue of honest and reasonable mistake of fact arises.
2. Section 125(1) of the Act provided: Where any matter or thing is by or under this Act, other than by or under the regulations, directed or forbidden to be done, or where the Minister, the Secretary, a council or any other person is authorised by or under this Act, other than by or under the regulations, to direct any matter or thing to be done, or to forbid any matter or thing to be done, and that matter or thing if so directed to be done remains undone, or if so forbidden to be done is done, a person offending against that direction or prohibition shall be guilty of an offence against this Act. Section 76A of the Act provided: (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.
3. There is an issue as to the elements of an offence as alleged. Mr Nash on behalf of the prosecuting council argues (written submissions at para 12) that the elements are: 1. The Defendant (element 1) 2. Did not 'retain' trees on the Land (Element 2); 3. The trees were required to be retained on the land under the consent (Element 3).
4. Mr O'Gorman-Hughes on behalf of the defendant argues that the elements are as set out in North Sydney Council V Moline and anor (no2) [2008] NSWLEC 169 at para 15 1. the defendant is a person who; 2. carried out development; 3. that an environmental planning instrument provides may not be carried out except with development consent; 4. otherwise than in accordance with the consent that has been obtained and is in force.
5. The prosecutor's case is that section 76A creates two different offences, the first being an offence of carrying out development for which consent is required without obtaining any consent, and the second being an offence arising where a development consent has been obtained and the allegation is that development is carried out not in accordance with the consent. It is argued that the present case is an example of the latter.
6. The distinction sought to be made is that where a prosecution alleges that no consent has been obtained the prosecution must prove absence of any consent as an element of the offence, whereas where the prosecution alleges a consent has been obtained and is in force it must only prove that the development is not in accordance with that consent. If the defendant seeks to defend the matter on the basis of some other consent allegedly providing lawful authority then the onus in relation to lawful excuse lies on the defendant on the balance of probabilities. I was not directed to any authority to establish that proposition, nor indeed to any authority where such an issue has been raised in this context.
7. Moline did relate to a prosecution under 76A(1)(b), however that was in very different circumstances to these. In that case there was only one development consent in force, and the case alleged a breach of it.
8. In Wollongong City Council v Ensile P/L and anor (no 8) [2008] NSWLEC 232 Jagot J clearly placed the burden squarely on the prosecutor in relation to absence of consent at any time, in circumstances where there was no suggestion there had ever been consent for the relevant development. The prosecutor says that that is a different offence to the one being prosecuted in these proceedings. The defendant relies on the statements of Justice Sheahan in Canterbury Bankstown Council V Sydney Tools Proprietary Limited [2019] NSWLEC 103 where in class 4 proceedings seeking to restrain alleged breaches of development consent his Honour concluded at para 155 "Allowing for some overlap and confusion when all consents are considered, it is fair to conclude that each unit of the warehouse on the site enjoys "a bundle of rights"". This was referred to elsewhere in that decision as "a mosaic of development consents".
9. Section 76A refers to "the consent", rather than to "a consent". The use of the definite article in this provision could support the submission that it requires a prosecutor to prove only non-compliance with a specific consent, although the general principle is that the singular includes the plural in legislation (s8 Interpretation Act 1987 (NSW)). In my view where more than one consent is in force in relation to the same subject matter it cannot be that a prosecuting authority can choose between those consents in order to relieve itself of the usual criminal standard of proof in relation to an alleged non-compliance with any of them.
10. There were no submissions made by either party on the question of whether if the 2001 consent remains in force, conditions relating to trees of the 2011 consent should take precedence over conditions relating to trees of the 2001 consent. A particular tree can only be removed once. Unlike use of land, which may change, removal of a tree is permanent. The construction of a manufactured housing estate in accordance with the 2001 consent is entirely inconsistent with the subdivision of the land as proposed in the 2011 consent. That is because the boundaries of the subdivision bear no relationship at all to the proposed locations of the manufactured home lots and roads of access.
11. It is in the nature of a mosaic, as referred to in Sydney Tools, that one piece fits neatly against the edge of another piece. A mosaic is not something which contains overlapping pieces that cover the same area. This may be what his Honour in Sydney Tools was referring to when he referred to "overlap and confusion". As I have indicated, that case does not assist in the resolution of the issue raised here where different consents create different requirements in relation to the same subject matter.
12. Ordinary principles relating to criminal prosecutions must apply. The prosecution bears the onus of establishing to a prima facie level non-compliance "in accordance with" all consents in force at a given date.
13. However, where work in relation to a later consent would be inconsistent with work in relation to an earlier consent, and there is prima facie evidence work is being done pursuant to the later consent, I consider an evidentiary onus lies on a defendant seeking to rely on the earlier consent. That requires there to be evidence raising at least the possibility that the work is being done in pursuance of the development approved by that earlier consent. If that evidentiary onus is satisfied, then the burden of proving the offence still remains on the prosecution beyond a reasonable doubt.
14. Subject to that exception, the prosecution must prove beyond a reasonable doubt that that the defendant himself, or by his servants or agents, did not retain the trees on the land, and that the trees were required to be retained on the land in relation to all operative development consents.

Has the prosecutor proved beyond a reasonable doubt that the defendant either personally or by his servants or agents knocked over, and therefore did not retain, the 24 trees as alleged?

1. The prosecution case is that a written complaint was received by Council about land clearing on the site. In response to that complaint on 24 November 2016 and 6 February 2017 Mr Ian Staples, a Council Compliance Ranger, attended Lot 1 and made observations in relation to trees which had been knocked over. His affidavit (Exhibit 2) annexes photographs taken on 24 November 2016, which include measurements that he made of the vegetation alleged to be trees.
2. I do not understand it to be in issue that the 24 items subject of that affidavit were in fact trees for relevant purposes - if there be any such dispute, it is proved to my satisfaction beyond a reasonable doubt by the evidence of Mr Staples in Exhibit 2. The annexed photographs include Mr Staples for the purpose of scale, and the evidence is that the smallest of the trees was 16.5 m high and all had a circumference of more than 500 mm (Staples para 16).
3. Ms Roslyn Middlemiss knows the defendant, and lives in the local area. She has made observations of work being carried out on land behind her house over a number of years. Her affidavit indicates that she has a view of Lot 1 from the rear yard of her house. She has observed the defendant operating a large orange excavator on the site. On 19 November 2016 she gives evidence of observing the defendant on Lot 1 using a digging bucket of the excavator to knock over large trees. Her evidence was not challenged (exhibit 8).
4. Mr Michael Willoughby lives with his partner Ms Middlemiss at the same location. He also gives evidence on 19 November 2016 of observing a man he believed to be the defendant exit his residence on the westernmost portion of Lot 1, drive to his orange excavator, and use the bucket of the excavator to push over trees. On some occasions he dug around the base of the trees to loosen the roots and then knocked the tree over. He made those observations from about 90 m from the excavator. Annexure B to his affidavit shows the location of his house, and the location of the trees in a general way. He described that document as an old aerial photograph. Again, his evidence was not challenged. (exhibit 9)
5. Greg Owens also lives in the local area, and has given evidence of driving along that road to and from his workplace. Sometime late in 2016 he observed the defendant on a Saturday afternoon pointing at trees and watching as an excavator driven by another person pushed over trees in the northern portion of the site. His evidence was also unchallenged (exhibit 7, and oral evidence).
6. The evidence that the defendant was either himself or by another person responsible for the knocking over of trees on Lot 1 is overwhelming. There is no evidence capable of supporting any other conclusion. In particular, there is no evidence of any person other than the defendant, or a person driving an excavator in the defendant's immediate personal presence, on any occasion being present on the land at about the time the trees were removed. It was not suggested to any of the civilian witnesses that they were not in a position to make observations of any activity. The only available inference is that the witnesses to whom I have already referred were concerned about tree removal on the land and were in a position to observe removal by other persons taking place. The possibility that some person not acting at Mr De Battista's direction or with his consent came onto his land, knocked over trees on it, then left the trees there is not a reasonable hypothesis considering the evidence.
7. In relation to the issue of vicarious liability for the activity of contractors or other persons, I do not consider that the prosecutor needs to prove precisely which tree Mr De Battista removed and which tree was removed by another person if the only available inference is that any removal was at his direction and with his consent. In circumstances where on some occasions he himself was driving an excavator and removing trees I consider that inference is the only reasonable inference in the circumstances. The evidence that the defendant was living on the land at the relevant time was not challenged. He is also the registered proprietor of the land.
8. I am satisfied beyond a reasonable doubt that the defendant himself or by direction to another unknown person knocked over the 24 trees the subject of this prosecution. I am also satisfied beyond a reasonable doubt that knocking over a tree amounts to not retaining it. No argument has been put to the contrary.

What consents were in force in November 2016? What conditions applied concerning tree removal?

1. It is common ground that both the first and second subdivision consents were in force. The units consent had lapsed. At issue is whether the MHE consent was still in force.
2. The MHE consent granted on 2 May 2001 included as condition 9: 1. "No trees shall be removed without the written consent of Council, except where necessary for siting of buildings, provision of roads of access or bushfire hazard reduction required as a condition of development consent."
3. I note that the defendant's written submissions at paragraph 18 contain different wording for this condition, which appears to be incorrect. The consent extracted by the defendant's counsel is the consent that attached to development consent DA01/2652 which was for the establishment of a work area for the construction of manufactured homes. There is nothing in the evidence to suggest that any of the trees the subject of this prosecution was in that work area. It is on a different lot.
4. There is evidence in the defence case directed to establishing practical commencement in relation to the MHE consent before it would have lapsed after 5 years. In relation to that, the prosecutor says that practical commencement could not have taken place because condition 24(c) required a pavement design to be approved before any works were undertaken, and that had not taken place. (Affidavit of Alison Dalyell Exhibit 1 paras 7 - 16).
5. The defendant argues that condition 24(c) only applied to engineering works, not to works generally. That position is supported by the terms of that condition which appears in the section relating to engineering works, and other Council records from that time, which include discussions with Council officers relating to commencement by the pouring of footings (Affidavit Dayna Deller Ex 18 annexures I, J and K).
6. I find as a matter of fact that condition 24(c) did not restrict all works, but only engineering works. However, it is engineering work that the defendant relies on in part as being capable of preventing the consent from lapsing (see paragraph 22 written submissions). There is no question that such work did take place, in particular as set out in the report of Cottier & Associates dated 22 October 2001. However, in the absence of compliance with condition 24(c), which was not complied with until 14 April 2003 I do not consider that that work can be relied on as constituting practical commencement in relation to this consent.
7. The other matter relied on in the defendant's submissions is as follows at paragraph 22: "it is apparent that Mr de Battista was told he needed to pour the footings of one of the units before the lapsing date prior to the lapsing date, which he did".
8. Annexure K sets out that as at 22 March 2006 it was the council's position that "In order to justify substantial commencement by the development application lapse date of 2 May 2006; provide at least one of the manufactured homes footings inspected and poured by this date". There is evidence that the footings had been inspected, but no evidence that they had been poured. Annexure L refers to annotation by the council inspector that "the piers to be well cleaned out prior to pouring of concrete" from which I would infer that as at the date of inspection, no concrete had been poured. That may have been the defendant's intention, however there is no evidence that he actually did it.
9. In the absence of any such evidence, I am satisfied beyond a reasonable doubt that there had not been practical commencement of the MHE consent before the lapse date. Accordingly, I find that the MHE consent was no longer in force in November 2016.
10. If I am wrong about the MHE consent having lapsed, I do consider that there is powerful prima facie evidence in the prosecution case that the actions that he was taking in November 2016 were in accordance with the first or second subdivision consents, and not the MHE consent. The evidence is that the defendant was pursuing the first and second subdivision consents up to as recently as a month before the tree removal. There is also evidence that he was pursuing a Land and Environment Court appeal in relation to those consents as at 10 November 2016 - see the affidavit of Michael Willoughby, Exhibit 10, at annexure p7. Confirmation had been requested that practical commencement had taken place in relation to those consents.
11. The subdivision plans for both of those subdivisions are inconsistent in their boundaries with the plan for the manufactured housing estate. In those circumstances I do consider that there is an evidentiary onus on the defendant in relation to that work being done in accordance with the MHE consent. In the event that such evidence were present, then the onus would clearly shift to the prosecution to negative beyond a reasonable doubt that his actions were in accordance with that other consent. There is no evidence before me to satisfy that evidentiary onus - all the evidence is to the contrary.
12. The first subdivision consent permitted "Trees and vegetation to be selectively removed from this area to reduce the fuel load to "Outer Protection Area" standard (i.e. less than eight tonnes per hectare) see clearing notes". The clearing notes contained further preconditions to the removal of trees.
13. Condition 10 of the second subdivision consent provided that: "Trees outside the buffer are to be retained except: 1. If written advice from a qualified arborist is received by Council stating that trees are dangerous; 2. on the alignment of services; 3. to achieve the minimum RFS requirements. The remaining trees are to be retained."
14. As a matter of fact, it is noted that as at the date of this consolidated consent Lot 1 had already been significantly cleared - see annexure E to Exhibit 10, the aerial photograph taken on 3 August 2014.
15. The consolidated consent approved subdivision plan 25032-01, and included that condition. Conditions 15 to 21 related to protection for trees to be retained and in particular noted at condition 15: 15. Prior to the commencement of works: a. The applicant must provide written evidence to Shoalhaven City Council that a suitably qualified environmental consultant has been engaged to supervise the clearing of the site; and b. All trees to be retained must be clearly identified and marked as per the approved site plan; ….

Has the prosecutor proved the location of the trees with sufficient precision to prove that their removal was not in accordance with a consent that was in force?

1. There is an issue about the capacity of the prosecution case to prove the accuracy of GPS plotting of trees marked 1 to 24 on the annexures to Mr Staples' affidavit. Mr Smith who actually operated the GPS device has not been called as a witness.
2. I consider further below arguments about the accuracy of the mapping of the location of those trees, however on any view of the evidence the locations where they were shown was sufficiently distant from the boundary of the land to account for any margin of error in placing them on Lot 1. The evidence that they were on the relevant land is the only available inference, for the following reasons.
3. The evidence is that Mr Smith, who is not a witness in these proceedings, used a GPS device to physically locate each tree while he was within 1 m and 3 or 4 m of Mr Staples. The photographs were taken on 24 November 2016, and the GPS measurements taken on 6 February 2017.
4. The only available inference is that the tree trunks and stumps had not been moved in between those two dates. It was not suggested otherwise to Mr Staples who was there on each occasion. His evidence was that Mr de Battista had been told not to move them on 24 November 2016.
5. The prosecution case is that more than 24 trees had been knocked over, however removal of some of those trees was authorised for the purpose of establishing a fire trail on the land. Mr Staples' affidavit notes a total of 72 trees knocked over.
6. Mr Staples gave evidence that he was with Mr Smith when Mr Smith was making entries into the GPS device. The device on the evidence is clearly used to enable the location of things on the earth's surface to be identified. He gave evidence that he had himself used an identical device previously. Their purpose in going there was to measure the dimensions of the trees. The GPS device was also used. A numbered schedule of the trees was produced as a result. The only inference available is that Mr Smith was in fact plotting the location of the trees when he was making entries on the GPS device.
7. There has been evidence about the accuracy of the GPS device, a GTECH PS236. Annexure I to Mr Staples' affidavit of 24 June 2019 was accepted to be inaccurate possibly to as much as 10 metres by Mr Peter Russell, who was a persuasive witness. He had personal knowledge of the GPS system used, and certainly accepted that it was not accurate to the same degree as a GPS used by a surveyor. Typically he said that it was between about 1 to 3 m accurate. However, he said it depends on a number of other factors, for example tree cover and weather conditions. I note that the evidence in the photographs clearly indicates that there was no tree cover in the immediate vicinity of the locations of the felled trees, and that the weather on the day the locations were plotted was fine and clear. In any case, Mr Russell said that any inaccuracy would relate to every data point, "they'd be out by the same amount but you'd be able to see it by comparing with the boundary pegs" (TP81.14).
8. The device used by Mr Smith was a device used in the ordinary course of the Council's business. Mr Russell gave evidence that the data he was given from that device included a recording of boundary pegs. Page 67 of the annexures to Mr Staples affidavit sets out what Mr Smith did with that device in particular in relation to the tree numbers that were recorded. Clearly the purpose of making those recordings was to enable exhibits H and I to be prepared by Mr Russell, being the locations of the 24 trees on both the plan attached to construction certificate 12/1567, and on a satellite image. That is what Mr Russell said he did. Mr Russell agreed in his evidence that all the points should be moved a little bit south (at 86.5) when shown an aerial photograph that indicated plotted trees in a location where that photo showed no trees.
9. He agreed that the accuracy of an overlay on a map depends on the ground truthing in relation to a particular boundary point. However, he indicated that that reference was simply a validation of the device, not an additional source of inaccuracy (TP83.32-40).
10. I accept beyond a reasonable doubt that the data used by Mr Russell did record the observations that Mr Smith made of the location of the trees and the boundary pegs. To the extent that the data may have been inaccurate, it was inaccurate to the same degree (that is, the position of the trees relative to each other remained the same). Taking into account Mr Staples' evidence of his observations, the evidence contained in the aerial photographs, Mr Russell's evidence that the red dotted line on exhibit H represents a 6 metre offset to the boundary, and his evidence that the inaccuracy of the GPS could be up to 10 m, I am satisfied beyond a reasonable doubt that all 24 trees are well within the boundaries of Lot 1.
11. On behalf of the defendant it is argued that the precise location of trees is of importance because the MHE consent contained approved building locations and access roads and one thing the Council was required to prove was that each of these trees was not on an approved building location.
12. I do not need to consider the evidence of Ms Gillon in detail, which related to the location of the trees relative to the MHE consent. However, I do record my finding that Ms Gillon was provided with the incorrect plan in relation to the MHE consent. There was more than one such plan. She used one which had the whole estate located further to the west than the amended approved plan. This is clearly shown when one compares the plan at page 48 of the annexures to Ms Dalyell's affidavit to the plan at page 22. What Ms Gillon used is the plan at page 22. The final approved plan was the plan at page 48.
13. I do accept that if the MHE consent was still in force, and the defendant had met its evidentiary onus as referred to above, the Council would not be able to prove the location of the trees with sufficient precision to prove that they were not removed for the siting of buildings or roads in accordance with that consent. I have however found that the MHE consent was not in force, or that the defendant has not met his evidentiary onus in respect of it.

Can an 'asset protection zone' be established before the location of a building is known? If so, did the council approve clearing for the purpose of establishing an 'asset protection zone' or "minimum RFS requirements"?

1. Mr Irwin, a Council officer who is a surveyor, made three affidavits which are exhibits 3, 10 and 11. He conducted a search of the council's TRIM database. His evidence is that the second subdivision consent has been physically commenced, particularly in relation to approved tree removal works on Lot 6 (which is not the subject of this prosecution).
2. At paragraph 13 of his affidavit of 19 November 2019 he gives his opinion that condition 5 in relation to the second subdivision consent which required the property to be managed as an Inner Protection Area has not been enlivened as no subdivision certificate was ever issued. There is no evidence to the contrary. I accept that evidence. In relation to the second subdivision consent, in the absence of a subdivision certificate, any suggestion that this clearing was in order to establish an inner protection area would not be in accordance with the development consent.
3. Mr Irwin went on to give the opinion that "in relation to condition 10(c), the only discernible RFS requirement that arose from the consent was the requirement to maintain the fire trail along the northern boundary of Lot 1" (at para 8 exhibit 11). Trees which had been felled in that area are not the subject of this prosecution.
4. Mr Irwin annexed to his affidavit a copy of the document "Planning for Bushfire Protection 2006", and NSW Rural Fire Service's "Development Standards for Asset Protection Zones". He was cross-examined at length about the opinion he provided that an inner protection area can only be established once the asset is erected, or the location where it is proposed to be erected is established. He maintained that opinion. There is no evidence to the contrary, and in any case it appears to me to be entirely consistent with the terms of the documents. It also seems to me to be the only rational conclusion, having regard to the terms of those documents.
5. The document "Standards for Asset Protection Zones" defines such a zone as "a fuel reduced area surrounding a built asset or structure. This can include any residential building or major building such as farm and machinery sheds, or industrial, commercial or heritage buildings." (At page 91 of Exhibit 11).
6. In addition, the Standards for Protection Measures at pages 32ff all confirm that the siting of assets is essential to the creation of asset protection zones. Appendix 2 to the document "Planning for Bushfire Protection" also assumes the location of a building is known in relation to determining an asset protection zone. As I said during the course of objections in the evidence of Mr Irwin, it may be that in some circumstances on very small lots there is no practical difference between knowing the location of a building and not knowing the location of a building, however there is no evidence before me to suggest that that is this case. Council requirements clearly did not envisage that all trees would be removed from Lot 1.
7. These findings do not mean that the council could not approve the removal of trees at the subdivision stage for the purpose of hazard reduction or indeed for any other purpose. However, I do not accept that "minimum RFS requirements" or the area of an "Asset Protection Zone" can be established by reference to these documents without information about building location.

Was the clearing not in accordance with condition 10 of the development consent SF 10111 as in force at the relevant time?

1. I have set out Condition 10 at para 54 above.
2. The evidence of Mr Irwin is that the trees were all outside the buffer zone. (Affidavit 19 November 2019 paragraph 21). The buffer zone was on Lot 6, not Lot 1.
3. There is no evidence to suggest that Council had received any qualified arborist's advice that any of the trees was dangerous. There is evidence to the contrary (exhibit 4 affidavit of Roslyn Ball dated 24 June 2019). I am satisfied beyond a reasonable doubt that the exception to retaining trees on receipt of written advice from a qualified arborist that the tree was dangerous did not apply to these 24 trees. On behalf of the defendant it was not argued otherwise.
4. The evidence of Mr Irwin proves that none of the trees was on the alignment of services. Again, no argument was put to the contrary. I am satisfied beyond a reasonable doubt that they were not.
5. The defence case is that Council has not proved to the criminal standard that the clearing was not to achieve the minimum RFS requirements. I accept Mr Irwin's evidence that the minimum RFS requirements in relation to Lot 1 only involved the construction of a 6 m wide fire trail along the northern boundary, and none of the trees the subject of this prosecution was anywhere near that fire trail. The creation of an inner or outer protection zone was not a minimum RFS requirement until the location of buildings was known.
6. The prosecution has proved to my satisfaction beyond a reasonable doubt that these trees were not removed to achieve the minimum RFS requirements in accordance with condition 10 of the consent.
7. I am therefore satisfied beyond a reasonable doubt that the knocking over of trees 1-24 in November 2016 was not done in accordance with condition 10 of the development consent SF10111.

Was the clearing not in accordance with the first subdivision consent?

1. The first subdivision consent permitted "Trees and vegetation to be selectively removed from this area to reduce the fuel load to "Outer Protection Area" standard (i.e. less than eight tonnes per hectare) see clearing notes".
2. It is submitted on the behalf of the defendant that approval to clear pursuant to this consent was subsequently granted, and reference is made to the approval letter at page 116 of the annexure is to Exhibit 1. It is noted that that letter relates to both the first and second subdivision consents. Leaving aside for the moment the fact that the time fixed in that letter for clearing to take place had expired in 2014, I accept that there is nothing in that consent preventing clearing work from taking place until approval had been granted for buildings. There is nothing in the evidence to show how many trees eight tonnes per hectare might be, and there was no reference to it in the course of any cross-examination of witnesses.
3. In relation to Lot 1 the letter required strict compliance with conditions 12, 13, 15 to 21, 23 to 26 and 30. These requirements are a reference to the second subdivision consent. Condition 15 requires that prior to the commencement of works: 1. the applicant must provide written evidence to Shoalhaven City Council that a suitably qualified environmental consultant has been engaged to supervise the clearing of the site, and 2. all trees to be retained must be clearly identified and marked as per the approved site plan … Condition 20 requires that all clearing works are to be supervised by a suitably qualified environmental consultant. Condition 21 requires that a suitably qualified NSW National Parks and Wildlife Service licensed wildlife handler must be on-site prior to, and during the removal of any trees or areas of potential habitat on the property, to rescue any fauna. Condition 26 requires that hollow bearing trees must be felled carefully in sections utilising a "cherry picker", or a crane if necessary, to allow the rescue of native fauna. "Hollow bearing sections must be carefully lowered to the ground so as not to injure native fauna."
4. At page 83 of the annexures to Ms Dalyell's affidavit the conditions in the "clearing notes" are clearly set out at items 6, 7, 8 and 9. They mirror those set out above.
5. There is no evidence of any notice to Council of the engagement of an environmental consultant, and it was not suggested to any Council witness that there had been such notice. Ms Ball's searches did not find any. There is no evidence of any wildlife handlers, or any cherry picker, or NPWS staff on site. There is an inference available from the evidence of each of the eye witnesses to the tree removal that what they saw did not include any such people or equipment. I am satisfied beyond reasonable doubt on the evidence that the clearing that took place was not done in accordance with this consent.
6. I therefore find the offence proved. C Farnan Magistrate

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: 20 January 2022