The Council of the City of Gosford v Tauszik

DATES OF HEARING: 22 April 2005 EX TEMPORE JUDGMENT DATE : 04/22/2005

D Buchanan SC/M C Fraser (Prosecutor) P J Donnellan & Co by city agents Wiltshire Webb (Solicitors) LEGAL REPRESENTATIVES:

I S Lloyd QC/T Howard (Defendant) de Mestre & Company (Solicitors)

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

JUDGMENT 1 HIS HONOUR: The defendant was charged that on 14 June 2002 at Pearl Beach he did, without consent, carry out development, in that he cut down three trees on property known as 6 Pearl Parade, Pearl Beach, being development carried out without the consent of the Gosford City Council. 2 On 7 March 2005 I found the offence proved in relation to the removal of two trees and published my reasons. The proceedings before me today are in relation to the penalty which should be imposed. 3 Control over the removal of trees is commonly provided in planning instruments, particularly in urban areas. In this respect the Gosford Planning Scheme Ordinance is typical. Different arrangements are often provided in relation to the control of trees and other vegetation in rural areas where particular legislation has been provided in relation to vegetation of various types. 4 Common to provisions in planning instruments in urban areas is a requirement that before a tree can be removed, and in many cases before it can be significantly altered, the consent of the Council is required. Planning instruments which contain these provisions are developed in recognition of the community's concern to ensure that trees which contribute to the quality of the urban landscape are not indiscriminately removed but that this only occurs after a judgment has been made as to the impact of the removal of the tree. Accordingly, any breach of a provision in a planning instrument designed to control the removal of trees is objectively serious for it challenges the means by which the community has provided for the preservation of the quality of the urban landscape. 5 In the present case, as I indicated in my previous reasons, the defendant had recently acquired his property at Pearl Beach. That property is situated on the western side of the roadway which adjoins the beach frontage. The trees which were removed formed part of a continuous line of five Norfolk Island Pines which were mature trees and which formed, with other Norfolk Island Pines, a significant component of the local landscape. 6 I am satisfied beyond any doubt that the defendant removed the trees for the purpose of enhancing the amenity of his own property, particularly to expand the available views from within the property to the water. I am also satisfied that the defendant knew that before the trees could be lawfully removed, the consent of the Council would be required. I am further satisfied beyond any doubt that he knew that he did not have that consent when he engaged a contractor to remove the trees. 7 As I have indicated, the trees were mature and although it is not possible to determine when they may have been planted, their removal has increased the present amenity of the property by enhancing the views. 8 The prosecutor brings a motion seeking orders requiring the defendant to replant two Norfolk Island Pines no less than three metres in height in locations which are approximately the locations of the original trees. Orders are sought that the trees be maintained to a mature growth and a bond provided to secure that outcome. 9 The defendant does not resist the imposition of those orders and I will impose them. The consequence will be that in time the objective in the defendant removing the trees will be lost and the view canopy will be confined fairly much to what it would have been before the trees were cut down. 10 The imposition of an appropriate penalty in a matter such as the present creates particular difficulties. It is necessary to bear in mind that the offender must be adequately punished for the offence and his conduct denounced. In this respect I am aware that these proceedings have been given significant publicity and I have no doubt that the defendant has, by reason of that publicity, been made aware of the opprobrium with which the community views the acts he committed. 11 It is also important when sentencing the offender to bear in mind the need to deter others who may be minded to commit a similar offence. In this respect there is evidence before me of difficulties which have been experienced in a number of council areas with persons apparently, destroying trees without consent. That evidence suggests that it may often be done secretly, trees being poisoned to eliminate them from the landscape. 12 Although, in the present case, the offender committed the offence through a contractor in full view of the public and openly took a risk that he may be prosecuted, it is important in sentencing him to ensure that a message is sent to others in the community, who may be minded either openly or secretly to destroy trees without permission, that the law will visit such conduct with a severe penalty. 13 Finally, it is necessary in imposing a penalty to recognise that by removing the trees, the offender has diminished the urban environment in which they were located and altered the quality of the landscape enjoyed in that area. In that respect, I have before me evidence of the Council's attitude in relation to an application for the removal of one of the remaining Norfolk Island Pines. 14 I am not persuaded that if an application had been made for the removal of the trees which were illegally destroyed by the offender, that that application would have been favourably considered by the Council. Indeed, having regard to the significance of Norfolk Island Pines in the Pearl Beach landscape, I believe it most unlikely that consent would have been forthcoming. 15 The proceedings were vigorously defended both in a contested interlocutory application and in the ultimate proceedings. There is no evidence of any contrition by the offender and although this cannot be considered by way of any increased penalty, the offender is not entitled to any diminution in penalty on this account. 16 The offender is a married man of forty one years of age and is, apparently, a successful businessman. He has one child and another is about to be born. I understand that the subject premises were purchased shortly before the offence was committed, presumably to provide weekend and holiday accommodation for the family. Although evidence has been tendered to me which indicates that the removal of the trees may have enhanced the capital value of the premises, I do not believe this was a significant component of the offender's motivation. As I have indicated, I am satisfied that that motivation was to enhance the enjoyment of the property without consideration of whether or not the capital value would be improved. There is no suggestion that the offender seeks to realise the value of the property at any future stage. 17 The offender is a person of previous good character and a number of impressive references have been provided to me and I will have regard to those matters in imposing the penalty. 18 I have been referred to a number of decisions of this Court where penalties have been imposed in circumstances where trees have been removed without consent. As the previous decisions indicate, there are many circumstances in which such an offence can occur. Sometimes land extending over many acres will be cleared and the trees wholly removed. On other occasions one tree, perhaps a significant fig tree as occurred in one case, has been removed. 19 The Act provides a maximum penalty of $1.1 million. That penalty is provided in relation to any breach of a planning instrument or indeed any breach of the Environmental Planning and Assessment Act 1979. Given the infinite range of offences which can occur in breach of a planning instrument, there are difficulties in determining the appropriate range of penalties for one of the types of offences. However, I am mindful of the fact that although there is a range of penalties which have been imposed by this Court, in no case has a penalty in excess of $68,000 in relation to illegal damage to trees been imposed. 20 In the present case, I believe that it is important to mark the seriousness of the offender's conduct by a penalty which is sufficient to ensure that not only is he adequately punished but that others in the community are reminded of the serious nature of the offence. In this respect the community has, as I have indicated, entrusted the management of the urban landscape in this area to the Council. That landscape is provided not only by the buildings and other structures which are erected within it but is significantly defined by the nature of the vegetation, both native and otherwise, which has been either maintained or planted over the years. Just as the community expects that everyone within it will honour the obligation to obtain consent for the erection of structures, so the community expects that anyone who wishes to alter the natural landscape by removing or modifying trees will approach the local council to obtain consent. In this way the community's aspirations for the urban environment can be identified, evaluated and implemented. 21 The offender by his unilateral act chose to step outside the regime which the community has provided and, accordingly, a significant penalty should be imposed. When imposing that penalty I am mindful of the fact that orders will be made requiring the replanting of the trees. I am also mindful of the fact that the offender will suffer an order for costs which, having regard to the complexity and length of these proceedings, will impose a further significant financial obligation. 22 Having regard to all those matters, as I indicated on the previous occasion, I find the offence proved and the offender is convicted. I impose a fine in the sum of $25,000 to be paid to the Registrar of the Court within one month from today's date. 23 I order the defendant to pay the costs of the proceedings, including the interlocutory proceedings, as agreed or as assessed pursuant to the relevant provisions of the Land and Environment Court Act 1979. 24 I further order the defendant:

(a) within thirty days to plant two Araucarina Heterophylia , known as Norfolk Island Pine trees of no less than three metres in height in the locations indicated by the letters "AH" on the plan entitled "Tree Planting Locations, 6 Pearl Parade, Pearl Beach, NSW" contained in the Plan of Management prepared by Terry Machin dated 18 March 2005, which is the plan attached to this order and marked with the letter "A" and bearing my signature. (b) is to maintain the trees to a mature growth. (c) within 30 days is to lodge with the Council the sum of $10,000 to be held by the Council by way of security for the performance of the obligations imposed under paragraphs (a) and (b), such security to be retained for a period of ten years. **********

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