Thomson v Hawkesbury City Council

Thomson v Hawkesbury City Council - [2009] NSWLEC 151 - NSWLEC 2009 case summary — Zoe

[5]

Advanced Arbor Service Pty Ltd v Strathfield Municipality Council [2006] NSWLEC 485 Axer Pty Ltd v Environmental Protection Authority (1993) 113 LGERA 357 Bentley v BGP Properties Pty Limited [2006] NSWLEC 34; (2006) 145 LGERA 234 Bentley v Gordon [2005] NSWLEC 695 Byers v Leichhardt Municipal Council [2006] NSWLEC 82 Byron Shire Council v Fletcher [2005] NSWLEC 706; (2005) 143 LGERA 155 Cameron v Eurobodalla Shire Council [2006] NSWLEC 47; (2006) 146 LGERA 349 Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683; (1994) 82 LGERA 21 Campbelltown City Council v Toth [2005] NSWLEC 186 Capral Aluminium Ltd v Workcover Authority of NSW [2000] NSWIRComm 71; (2000) 49 NSWLR 610 Carlino v Leichhardt Municipal Council [2005] NSWLEC 198; (2005) 144 LGERA 235 Choices Manufacturing Pty Ltd v Fairfield City Council [2009] NSWLEC 72 Cooper v Coffs Harbour Council (1997) 97 LGERA 125 Council of Camden v Tax [2004] NSWLEC 448; (2004) 137 LGERA 368 Dodds v R [2009] NSWCCA 191 Environment Protection Authority v Buchanan (No 2) [2009] NSWLEC 31 Environment Protection Authority v Capdate Pty Ltd (1993) 78 LGERA 349 Eurobodalla Shire Council v Wheelhouse [2006] NSWLEC 98 Garrett v Freeman (No. 5); Garrett v Port Macquarie Hastings Council; Carter v Port Macquarie Hastings Council [2009] NSWLEC 1; (2009) 164 NSWLEC 287 Garrett v Williams [2006] NSWLEC 785; (2006) 160 LGERA 115 Gittany Constructions Pty Limited v Sutherland Shire Council [2006] NSWLEC 242; (2006) 145 LGERA 189 Hawkesbury City Council v Foster and Mushroom Composters Pty Limited (1997) 97 LGERA 12 Hawkesbury City Council v Johnson; Hawkesbury City Council v Johnson Property Group Pty Limited (No 2) [2009] NSWLEC 6 Hawkesbury City Council v Mushroom Composters Pty Limited (No 2) (1996) 89 LGERA 132 Hawkesbury City Council v Mushroom Composters Pty Ltd (No 3) (1996) 90 LGERA 395 CASES CITED: Hoare v The Queen (1989) 167 CLR 348 Johnson v R [2004] HCA 15; (2004) 205 ALR 346 Kari & Ghossayn Pty Ltd v Sutherland Shire Council [2006] NSWLEC 532; (2006) 150 LGERA 231 Latoudis v Casey (1990) 170 CLR 534 Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 Mill v Queen (1988) 166 CLR 59 Mosman Municipal Council v Menai Excavations Pty Ltd at [2002] NSWLEC 132; (2002) 122 LGERA 89 Newcastle City Council v Pepperwood Ridge Pty Ltd [2004] NSWLEC 218; (2004) 132 LGERA 388 Pearce v The Queen [1998] HCA 57; (1988) 194 CLR 610 Pittwater Council v Scahill [2009] NSWLEC 12; (2009) 165 LGERA 289 R v A [1999] NSWCCA 61 R v AEM Snr; KEM; MM [2002] NSWCCA 58 R v Bahsa (2003) 138 A Crim R 245 R v Doan [2000] NSWCCA 317; (2000) 50 NSWLR 115; [2000] 115 A Crim R 497 R v Dodd (1991) 57 A Crim R 349 R v Kalache (2000) 11 A Crim R 15 R v Morgan (1993) 70 A Crim R 368 R v Nichols (1991) 57 A Crim R 391 R v Peel [1971] 1 NSWLR 247 R v Rushby [1977] 1 NSWLR 594 R v Wheeler [2000] NSWCCA 34 Sutherland Shire Council v Nustas [2004] NSWLEC 608 Sutherland Shire Council v Turner [2004] NSWLEC 774 Veen v The Queen (1979) 143 CLR 458 Veen v The Queen (No 2) (1988) 164 CLR 465 Willoughby City Council v Revelas (2004) 140 LGERA 348 Zhu v Auburn Council [2009] NSWLEC 97

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The trees were cut down, removed, injured and/or destroyed by: (i) Either by a contractor, "Re-Gen", on instructions from the Defendant, or by the Defendant personally, (ii) The trees were pushed over by an excavator or earthworks machine. Statutory Framework 5 Section 76A(1) of the EPAA provides: 76A Development that needs consent (1) 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. 6 A failure to comply with s 76A(1) of the EPAA is an offence against the Act. In this regard s 125(1) of the EPAA provides: 125 Offences against this Act and the regulations (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. 7 The maximum penalty for an offence against the EPAA is 10,000 penalty units or $1,100,000 for an individual (s 126(1) of the Act). There is a jurisdictional limit on the amount of penalty imposed by the Local Court of 1000 penalty units or $110,000 (s 127(3) of EPAA). 8 Section 37 of the Crimes (Appeal and Review) Act 2001 ("the Review Act") states: 37 Appeals to be by way of rehearing on the evidence (1) An appeal against conviction is to be by way of rehearing on the basis of evidence given in the original Local Court proceedings, except as provided by section 38. (2) Fresh evidence may be given, but only by leave of the Land and Environment Court which may be granted only if the Court is satisfied that it is in the interests of justice that the fresh evidence be given. (3) The parties to an appeal are each entitled to be provided with one free copy of the transcripts of evidence relevant to the appeal and, if fresh evidence is given, one free copy of the transcript of the fresh evidence. 9 Section 3A of the Crimes (Sentencing Procedure) Act 1999 ("the CSPA") provides that the purpose of imposing a sentence on an offender includes: 3A Purposes of sentencing 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. 10 Section 215 of the Criminal Procedure Act 1986 relevantly provides: 215 When costs may be awarded to prosecutor (1) A court may at the end of summary proceedings order that the accused person pay the following costs to the registrar of the court, for payment to the prosecutor, if the accused person is convicted or an order is made against the accused person: (a) such professional costs as the court considers just and reasonable, (b) court costs, to be paid to the registrar for payment to the prosecutor if the costs have been paid by the prosecutor or, if they have not been so paid, to be paid to the registrar of the court. 11 Section 694(1) of the Local Government Act 1993 states: 694 Application of penalties (1) Any penalty, fine or forfeiture imposed under any Act, or imposed for a contempt of a court order to remedy or restrain a breach of this Act or any other Act, and recovered in proceedings instituted by the council is: (a) to be paid to the council, and (b) to be allocated by the council to the council's consolidated fund.

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15 The property was at all relevant times subject to the provisions of the tree preservation order. The first tree charge 16 The council received DA 377/06 on or about 26 May 2006 ("the first DA"). The development application sought consent for the removal of specific trees identified on a hand-drawn plan. 17 Two council officers attended the property and met with the appellant. All three persons inspected the trees designated for removal. The trees were identified with yellow paint and given a number from 1 to 10. The appellant was informed by the council's arborist that approval would not be given for removal of all of the trees specified. A written development assessment nominating those trees approved for removal was forwarded to the appellant. In each instance where the appellant had challenged the refusal to grant approval to remove a tree the council's arborist had given the appellant his reasons for refusing. Typically, the reason was because the dead wood or lower branches giving rise to any potential safety issues identified on a particular tree could be remedied by pruning. 18 On 10 July 2006, the council issued a Notice of Determination in relation to the first DA. The Notice identified the trees approved for removal. It was an express condition of consent that "all other trees on the site are to be retained and not removed". 19 On the same day, the appellant felled seven trees that were to be retained pursuant to the consent. All of the felled trees were covered by the tree preservation order and were not the subject of any applicable exemption. No development consent or permit had been issued which granted consent or permission to remove the trees. 20 The trees were all Australian natives and were native vegetation for the purpose of the LEP. 21 In the opinion of the council's arborist, each of the trees at the time of his inspection were healthy and gave rise to no safety concerns. 22 This opinion, was, however, disputed by the appellant who submitted that, based on a consultant arborist's assessment, Mr Laurie Smith from About Trees, four of the seven trees were damaged and constituted a hazard potential as a consequence. The second tree charge 23 The facts giving rise to the second tree charge were similar to those relating to the first tree charge, save that when the appellant sought development consent for the removal of further trees on 4 October 2006, the application was accompanied by an arborist's report in respect of those trees. 24 Again council officers came out to inspect the trees and to confer with the appellant. At the time of the inspection, the council's arborist had with him a copy of the report provided by the appellant's arborist and read from it. The appellant was once more informed that not all the trees he sought to remove would be permitted to be removed. 25 On 4 January 2007, the council issued its Notice of Determination in relation to the second DA. The Notice identified the trees for removal and condition 3 of the consent stated that: Approval has been granted to remove the following trees numbered on the approved stamped plans.

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(b) in relation to the removal of the 16 forest gums not included in his aborist's report the subject of the second tree charge, the appellant stated that "it was just my opinion they were dangerous… With previous inspections, I have been more correct than the arborists and I didn't get any arborist's report to save money." 29 On or about 5 March 2007, the appellant cut down with a chainsaw another tree in contravention of condition 3 of the Notice of Determination in relation to the second DA. When questioned about his actions by the council, the appellant stated that, first, he cut down the tree in order to attract the attention of the council after a storm that caused damage to the property, and second, that "no one else around here has trees near their dams. Why can't I get rid of mine? Whatever happens, they will be going." 30 Like the first tree charge, each of the removed trees was covered by the tree preservation order and was not the subject of any applicable exemption. Again, no development consent or permit was issued which granted consent or permission to remove the trees. 31 The opinion of the council's arborist was, at the time of his inspection on 8 November 2006, that each of the felled trees was healthy and gave rise to no safety concerns. 32 This opinion was similarly disputed by the appellant who contended, on the basis of a report from the arborist Mr Smith, that eight of the nine removed trees subject to the tree preservation order were damaged or had severe structural defects that could not be remedied and that 11 of the 16 forest gums had been assessed as being in an advanced state of decline and contained significant structural defects making them unsuitable for retention. The unauthorised earthworks charge 33 On 3 July 2006, a council officer met with the appellant on the property. The appellant outlined to the officer various earthworks which he proposed to undertake at the property. The officer advised the appellant that a development application would need to be lodged together with appropriate plans. No development application was received by the council. 34 From November 2006 up to and including January 2007, earthworks were carried out at the property by the appellant. These works involved the felling of, and injury to, trees, the clearing of native vegetation and:

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43 An appeal against the severity of sentence is made to this Court as of a right under s 31(1) of the Review Act. The appeals are to be dealt with by way of rehearing on the basis of certified transcripts of evidence given in the court below (s 37(1) of the Review Act). This Court may grant leave to adduce new evidence only if satisfied that it is in the interests of justice that it be given (s 37(2) of the Review Act). 44 In Gittany Constructions Pty Limited v Sutherland Shire Council (2006) 145 LGERA 189 Preston CJ, citing Cooper v Coffs Harbour Council (1997) 97 LGERA 125, described the nature of such an appeal as follows (at [21]): 21 In Cooper v Coffs Harbour City Council (1997) 97 LGERA 125, an appeal under s 5AA of the Criminal Appeal Act 1912 was described as follows: … an appeal under s 5AA is not restricted to a determination of whether the decision of the Court below was infected with error. It is a rehearing on the evidence given before the trial Court. The width of the Court's jurisdiction when determining an appeal under this section is evidenced by s 5AA(4) which permits the Court to vacate the determination made by the trial court and to make any determination that the trial court could have made on the evidence heard on appeal. The Court is not concerned, as it would be in an ordinary appeal under s 5 of the Criminal Appeal Act , with whether the original determination was unsafe and unsatisfactory but whether the Court is independently of the same view as the trial court that the offence has been made out. The nature of the jurisdiction of this Court on an appeal under s 5AB was considered in Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority [(1993) 32 NSWLR 683; 82 LGERA 21]. It was held that an appeal under s 5AA was not a de novo rehearing but the Court was to consider the evidence before the trial court, together with any additional or substituted evidence admitted on the appeal, and resolve for itself afresh the ultimate issue for determination. Shortly after the decision in Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority was delivered, s 5AA was amended by substituting a recasting of subs 3 and the insertion of subs 3A. These amendments, however, did no more than confirm the correctness of that decision. Subsections 3 and 3A of s 5AA now make it clear that an appeal under the section is to be determined on the evidence before the trial court unless leave is given by this Court for fresh, additional or substituted evidence to be adduced.

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