The Council of the City of Gosford v Tauszik

4. Clause 44 of the Gosford Planning Scheme Ordinance (the Ordinance) provides for the Prosecutor to make a tree preservation order. Clause 44(5) of the Ordinance provides the relevant prohibition or offence that "[a] person who contravenes or causes or permits to be contravened a tree preservation order shall be guilty of an offence".
5. Clause 2 of the Gosford City Council Tree Preservation Order (the TPO) provides that "[n]o person shall ringbark, cut down, top, lop, remove, injure, or wilfully destroy any tree without the consent of Council."

6. Sections 127(5) and (6) of the Environmental Planning and Assessment Act 1979 (the EP&A Act) specify the limitation periods for the laying of charges for offences under that Act. All offences under the EP&A Act have a six month limitation period under s 127(5), except for two offences which have a 12 month limitation period under s 127(6). Only one of the offences in s 127(6) is relevant in this case and that is the offence in s 127(6)(a) of "carrying out development, other than complying development, for which development consent is required, without obtaining development consent".

7. The Defendant argues that the offence described in the Summons is not that described in s 127(6)(a), but rather falls under s 127(5). Therefore, the 12 month limitation period does not apply, so that these proceedings should have been commenced within six months. If the Defendant is correct, these proceedings are statute barred.
8. The Summons refers to s 125 of the EP&A Act. While the Summons refers to development and the failure to obtain the consent of the Prosecutor it is not phrased in terms of the offence being that of "carrying out development which required development consent without first obtaining development consent" and no reference is made to s 76A of the EP&A Act. Section 76A(1) provides: 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. 9. In a request for particulars dated 26 August 2003 from the Defendant's solicitors to the solicitors for the Prosecutor, question 4 put to the Prosecutor was as follows: When the prosecutor alleges in the Summons that the Defendant carried out the alleged development "without obtaining the prior consent of the Prosecutor", is it alleged the [sic] "the prior consent" required was "development consent" as defined in s 4 of the Environmental Planning and Assessment Act 1979 ? In a letter dated 12 September 2003 the Prosecutor answered no to that question. 10. Further, in the request for particulars dated 26 August 2003 sent to the Prosecutor question 2 stated: If the offence is said to arise under s 125(1), does the prosecutor allege that the offence arises by virtue of the Defendant having contravened a direction or prohibition set out in any other provision of the Environmental Planning and Assessment Act 1979 ? If so, please specify which provision. The Prosecutor replied referring to the Ordinance and the TPO. No mention was made of s 76A of the EP&A Act. 11. In the request for particulars question 7 stated: If the answer to question 4 is in the negative, precisely what form of "prior consent" does the prosecutor allege the Defendant was required to obtain? The Prosecutor responded that "[t]he consent required is as described in paragraph 2 hereof" . That answer referred to the Ordinance, which makes provision for the making of a TPO in cl 44, the TPO and that the Prosecutor alleges a breach of cl 2 of the TPO. In a further letter dated 15 September 2003 the Prosecutor's solicitors stated "[w]e wish to make clear that the consent required is a consent pursuant to clause 2 of the Tree Preservation Order".

12. In a further letter dated 22 September 2003 the Prosecutor's solicitors wrote to the Defendant's solicitors and stated "[w]hilst the consent required was a consent pursuant to the TPO, that consent is nonetheless properly categorised as [sic - a] type of "development consent" under the Environmental Planning & Assessment Act: Cameron v Lake Macquarie City Council (2000) 107 LGERA 308."

Defendant's submissions 13. The Defendant's counsel sought to rely heavily in his arguments on the answers to the request for particulars provided by the Prosecutor because, apart from the letter dated 22 September 2003, it would clearly appear from these answers that the Prosecutor was not pursuing this case in reliance on s 76A of the EP&A Act. The Defendant essentially argued that the answers to particulars supported the argument that the summons disclosed an offence under the second category in s 125(1) which are not matters where development consent is required, but rather consent of a different type. The matters in the second category identified in s 125(1) are: where … a council … is authorised by or under this Act … to direct any matter or thing to be done, or forbid it 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.

14. Section 127(6) does not therefore apply as the offence in the second category in s 125(1) is not that of carrying out development without development consent. Offences of the nature that arises in this case fall under s 127(5) and are subject to a six month limitation period. I note that the first category in s 125(1) is an offence "Where any matter or thing is by or under this Act … directed or forbidden to be done".

15. The Defendant relied on a number of cases, particularly Hornsby Shire Council v Clyne (Talbot J, NSWLEC, 29 October 1998, unreported), to argue that the breach of a TPO is under the second category of offence in s 125(1). Therefore, the consent alleged in the Summons can only be required under cl 2 of the TPO, which must be distinguished from development consents required under Pt 4 of the EP&A Act. Accordingly, the Defendant submitted that a six month limitation period applies under s 127(5) because the offence is not that under s 127(6).

Prosecutor's submissions 16. Section 4 of the EP&A Act has a definition of development which includes in par (f) "any other act, matter or thing referred to in section 26 that is controlled by an environmental planning instrument". Section 26(1)(e) provides for an environmental planning instrument to make provision for protecting or preserving trees or vegetation. Development consent "means consent under Part 4 to carry out development": s 4 of the EP&A Act.

17. The Prosecutor argued, firstly, that if an environmental planning instrument contains the prohibition against the contravention of the tree preservation order (here cl 44(5) of the Ordinance) rather than the TPO, this falls under par (f) of the definition of development in s 4 of the EP&A Act and development consent under the EP&A Act is required. Accordingly, s 76A of the EP&A Act applies and the offence falls under s 127(6)(a). The relevant statutory limitation period is therefore 12 months and this summons is not statute barred.

18. In Cameron v Lake Macquarie City Council (2000) 107 LGERA 308 Lloyd J had to consider in Class 1 proceedings whether an application to remove trees constituted a development application for the purpose of an appeal under s 97 of the EP&A Act and his Honour held that it did. Cameron was relied on to argue that where an environmental planning instrument contains the offence provision for breach of a TPO that breach is a breach of the EP&A Act and s 76A therefore applies. As s 76A must apply there is no need to mention that provision specifically in the summons. The Prosecutor relied on Rao v Canterbury City Council (2000) 112 LGERA 360 to support an argument that a failure to include a reference to s 76A was not fatal to the Summons.

19. Furthermore, the Prosecutor also argued that on the basis of the approach considered in Cameron and Dames and Moore Pty Ltd v Byron Council [2000] NSWLEC 46, breach of a tree preservation order is "development" under the EP&A Act and clearly subject to s 76A of that Act. On this basis the distinction drawn in the cases between the prohibition being in the LEP or TPO and consequently whether s 76A of the EP&A Act applies as is found in Hornsby Shire Council v Winsloe (1998) 101 LGERA 117, Clyne, Cameron and Meriton Apartments Pty Ltd v Ryde City Council (1998) 108 LGERA 352 is not relevant.

20. In relation to the answers to particulars given, the Prosecutor essentially submitted that the answers were consistent with the argument that the Summons is referring to development consent, albeit a particular species of development consent required pursuant to cl 44 of the Ordinance. Any possibility that the Defendant may have taken the answers out of context was cleared up by the letter dated 22 September 2003 which referred to Cameron.

Finding 21. Ultimately what I must decide is whether the Summons as pleaded discloses an offence to which the limitation period in s 127(6)(a) applies, namely an offence to which s 76A applies because development was carried out without the necessary development consent. The Prosecutor has argued that s 76A is relied on, and that this is clear from the Summons as currently drafted, although there is no reference in the Summons to s 76A of the EP&A Act.

(i) is the consent required under the Ordinance and the TPO before me development consent as defined in s 4 of the EP&A Act? (ii) which category of offences in s 125(1) applies to the offence in (i)? (iii) does the offence in the Summons disclose all the necessary elements of that offence? In answering these questions I am not going to consider the answers to the request for particulars but only the terms of the Summons itself. I consider the answers to the request for particulars are not relevant to the issue before me. The extent to which these answers are misleading, and therefore may cause prejudice to the Defendant, is a different issue which should be dealt with separately from the issue before me.

Question 1 - is the consent required under the TPO and the Ordinance before me development consent as defined in s 4 of the EP&A Act? 23. The Prosecutor is relying on the reasoning of Lloyd J in Cameron to argue that cutting down trees is "development" within the meaning of s 4 of the EP&A Act. In Cameron the Applicant appealed in a Class 1 appeal under s 97 of the EP&A Act against the Prosecutor's refusal of an application for consent to remove trees. The Prosecutor sought to have the appeal struck out as incompetent on the basis that s 97 did not apply as "an application to remove trees is not a development application and the removal of trees is not development" (at [4]). Clause 8 of the Lake Macquarie Local Environmental Plan 1984 adopted cl 8 of the Environmental Planning & Assessment Act Model Provisions 1980. Clause 8 allowed the Prosecutor to make a TPO and cl 8(5) provided "[a] person who contravenes or causes or permits to be contravened a tree preservation order shall be guilty of an offence …". Lloyd J referred to the decisions in Clyne and Winsloe and noted that in those cases there was no equivalent provision to cl 8(5) contained in the Hornsby Shire Local Environmental Plan 1994, rather the prohibition was in the TPO itself. His Honour held that the presence of cl 8(5) in the environmental planning instrument meant that the TPO is "an act, matter or thing referred to in section 26 that is controlled by an environmental planning instrument" and is thus "development" as defined in s 4" (at [16]). Bignold J reached a similar conclusion in Dames and Moore.

24. Cameron concerns a question of law in Class 1 proceedings not a Class 5 prosecution matter. Nevertheless I agree with the reasoning of Lloyd J in Cameron and consider that reasoning can be usefully applied in this case and that Clyne, which was relied on by the Defendant, can be distinguished. The prohibition against the contravention of the TPO appears here in the Ordinance and therefore the TPO is "development" as defined in s 4 of the EP&A Act as it is a matter controlled by an environmental planning instrument. A breach of the TPO and Ordinance which is a failure to obtain consent to cut down trees in this context is a failure to obtain development consent and is a breach of the EP&A Act to which s 76A applies.

25. In Clyne, which the Defendant relied on, Talbot J had to consider whether a summons failed to state all the legal ingredients of an offence under s 125(1) of the EP&A Act. He found the summons in that case, which concerned a breach of a TPO, did satisfy the requirements of the second category of offence under s 125(1). In Clyne the relevant prohibition was contained in the TPO not in the LEP, and to that extent there is an important difference in the statutory context between this case and Clyne. In this case the prohibition is in the Ordinance not the TPO. Clyne followed Winsloe in finding that a TPO was not an environmental planning instrument and therefore s 75 and s 76 of the EP&A Act, as they then were, did not apply - s 76 was the predecessor to s 76A and s 75 was the equivalent of par (f) of the definition of development in s 4. Question 2 - Does the offence under the TPO and the Ordinance fall under the first or second category of offence under s 125(1) of the EP&A Act?
26. Section 125 states: (1) 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 Director-General, 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.

27. A charge under the first category in s 125(1) requires that this be either a matter or thing forbidden "by or under the Act" (i.e. development requiring development consent). The second category is something a council can forbid pursuant to the EP&A Act but not by or under the EP&A Act. I have already found that s 76A applies to a breach of the TPO and the Ordinance, consequently it follows that an offence under the TPO and the Ordinance is an offence under the first category in s 125(1) as it is a matter forbidden "by or under this Act".

28. If the offence disclosed in the Summons is in the first category under s 125(1), arguably the Prosecutor's summons is one to which s 127(6) applies, that is, it is development for which development consent is required and a twelve month statutory limitation period applies. Question 3 - does the Summons as drafted disclose all the essential legal elements of an offence under the first category of offence under s 125(1)?
29. The essential elements of the offence identified in the Summons are: (a) development carried out, namely cutting down, removing, injuring and wilfully destroying three trees (b) by the Defendant (c) without the consent of the Prosecutor (d) such consent was required by cl 44 of the Ordinance

The Summons refers to s 125 of the EP&A Act, the offence creating provision, and the Ordinance which is the instrument under the EP&A Act pursuant to which the TPO is made and the instrument which contains the prohibition giving rise to this offence. There is no reference to the EP&A Act as being the source of development consent in the Summons. The particulars in the Summons, set out at par 3, refer to the TPO being made under the Ordinance, an environmental planning instrument for the purposes of the EP&A Act.

I consider the Summons does disclose an offence under the first category of offences identified in s 125(1) of the EP&A Act, being an act forbidden under the EP&A Act. While it may be arguable that because there is no reference in the Summons to development consent (as opposed to the consent of the Prosecutor) the Summons discloses an offence that falls under the second category in s 125(1), the development in question (the cutting down of trees) is controlled under the Ordinance, an environmental planning instrument. Accordingly, it falls within the definition of development in s 4 of the EP&A Act so that s 76A must apply as I have already found.

Is the failure to refer to s 76A which gives statutory force to the Ordinance fatal to the validity of the Summons? I consider the failure to refer to s 76A is not fatal because it is not an essential legal ingredient of the s 125 offence as the Summons identifies the particular Ordinance and TPO breached and specifies the acts of non-compliance; see Mason P in Rao at [23] - [24].

The reference to Cooper v Coffs Harbour City Council (1997) 97 LGERA 125 in Rao at par 28 and 29 is also potentially relevant to support the validity of the Summons in that here, as in Cooper, there is reference to the need to obtain consent, which in the context of the Summons, must mean development consent.

While I have found that Rao and Cooper do support the Prosecutor's argument that the Summons meets the essential ingredients of an offence under the first category of offences under s 125(1) I have to say that the circumstances here are less clear than those in Rao and Cooper. In both those cases, the offence concerned the breach of the conditions of a development consent issued pursuant to the EP&A Act. There could be little doubt that s 76A was the relevant prohibition under the EP&A Act. In this matter without a clear reference to the failure to obtain development consent and/or a reference to s 76A, it is arguably less obvious that s 76A applies. The situation was compounded by the particulars supplied by the Prosecutor in its letters dated 26 August 2003 and 12 September 2003. As I have already stated I am not taking into account the answers to particulars.

I consider there is sufficient particularisation of the necessary elements in the Summons to disclose the nature of the offence adequately. The elements are identified in par 27 and disclose to the Defendant the legal ingredients of the offence. This decision to uphold the Summons' validity should not be taken to suggest the Summons is ideally drafted, however.

The offence disclosed falls under the first category of offences found in s 125(1). It is an offence which falls under s 127(6)(a) and a 12 month limitation period applies. Accordingly, the Summons before me is not statute barred. I therefore decline to make the order sought in prayer 2 of the Defendant's Notice of Motion.

I note that prayer 3 of the Defendant's Notice of Motion sought an order that the proceedings be permanently stayed on the basis that they are an abuse of process. I have not heard any argument on that issue and I consider it appropriate that I stand over prayer 3 of the Notice of Motion to the hearing of this matter.

Orders 38. The Court orders that:

1. Prayer 2 of the Defendant's Notice of Motion filed in Court on 23 September 2003 is dismissed.
2. Prayer 3 of the Defendant's Notice of Motion filed in Court on 23 September 2003 is stood over to the hearing of this matter.
3. Costs are reserved.

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