Brown v Vine

[1989] NSWLEC 180

Land and Environment Court

of New South Wales

CITATION:

Brown v Vine [1989] NSWLEC 180

PARTIES:

PROSECUTER
Brown

DEFENDANT
Robert Anthony Vine

FILE NUMBER(S):

50003 of 1988

CORAM:

Stein J

KEY ISSUES:

:-

LEGISLATION CITED:

Environmental Planning And Assessment Act

CASES CITED:

DATES OF HEARING:

DATE OF JUDGMENT:

04/27/1989

LEGAL REPRESENTATIVES:

PROSECTOR
Mr Bannor

JUDGMENT:

HIS HONOUR: On 19 April 1989 I found the defendant, Robert Anthony Vine, not guilty of a breach of a Tree Preservation Order and dismissed the summons brought against him. I indicated that I would give my reasons later and this I now do.

The summons brought by the Town Clerk of the Concord Municipal Council charges that the defendant committed an offence on 12 September 1987 in that he did cut down remove or wilfully destroy mangrove trees having a height greater than six (6) feet in contravention of the Tree Preservation Order made on 21st February, 1972 under Clause 41 of the Concord Planning Scheme Ordinance.

Clause 41 of the Concord Planning Scheme Ordinance, a deemed environmental planning instrument under the Environmental Planning and Assessment Act, provides that the Council may make a tree preservation order. Such an Order "may prohibit the ringbarking, cutting down, topping, lopping, removing, injuring or wilful destruction of any tree or trees specified in such order except with the consent of the responsible authority...." Notice of the Concord Council's tree preservation order was published in the Government Gazette on 18 February 1972. The order extends to "any tree or trees within the Municipality of Concord, having a height greater than 6 feet or with a branch spread exceeding 4 feet in diameter".

By virtue of the Concord Planning Scheme Ordinance the jurisdiction of the Council extends to the mean high water mark of Majors Bay. Beyond the mark the Maritime Services Board has authority. The defendant resides at No. 6 Deakin Street, Concord, a property which is owned by his wife. The rear of the property fronts Majors Bay. The title to the property runs to the mean high water mark (the MHWM). A narrow strip at the rear of No. 6 (and also along the rear of adjacent properties in Deakin Street), is zoned Open Space Reservation. The balance of the subject property is zoned Residential.

Up until relatively recently the foreshore at the rear of the majority of the homes in Deakin Street (including No. 6) was lined with mangroves of varying size and maturity. These mangrove trees were both below and above the MHWM. I find that this was the situation up until February or March 1987.

The defendant's wife purchased the subject property in October 1986. At that time it appears that extensive mangroves were growing at the rear of the property and above the MHWM. It is also clear that extensive mangroves were growing in the Bay below the high water mark, contiguous to the rear of No. 6. The defendant gave evidence that he and his wife did not move into the property until March 1988. Prior to this he was a fairly frequent visitor to the land. On one of his visits in or around February or March 1987 the defendant noticed that the mangrove trees on the property above the high water mark had disappeared. He did not appear to be too concerned about their fate but approached his neighbour at No. 4, a Mr. Paolini. It is probable that the defendant had some suspicions about the loss of the trees and was told by the neighbour that they had been removed. He took the matter no further.

In April or May 1987 the defendant arranged with a contractor to place a quantity of fill in the rear yard and this was done. Following this exercise Mr. Vine became concerned as to where the rear boundary of the land was located. He therefore asked the Maritime Services Board to survey the land for him. Mr. Ireland, a Surveyor in the employ of the Maritime Services Board since 1966, came and took a survey of the land in July 1987. The Surveyor subsequently prepared survey notes and a survey plan. Mr. Ireland gave evidence to the effect that he did not see any mangrove trees on his inspection in July 1987 (other than perhaps single strands with a few leaves up to 15 inches in height). Mr. Ireland did, however, observe mangroves growing below the MHWM in Majors Bay adjacent to No. 6 Deakin Street.

On 12 September 1987 it is apparent that a number of mangroves were cut down below the MHWM at the rear of No. 6. Mr. Vine was prosecuted in a Local Court by the Maritime Service Board for a breach of the Management of Waters and Waterside Lands Regulations - clause 66. He pleaded guilty to cutting down two mangrove trees below the MHWM and was fined $400 by a magistrate.

The Court has to be satisfied that the offence (and each element in the offence charged) has been established beyond reasonable doubt. It has to be said that the evidence adduced in the prosecution case is largely circumstantial, and on some aspects of the case, fairly thin. The defendant gave evidence and provided some photographic material to support his contention that no mangroves existed on the property above the MHWM on 12 September 1987. Of itself this evidence may be thought to raise a reasonable doubt. However, the completely independent evidence of the Maritime Services Board surveyor, Mr. Ireland, must, in my opinion, raise a reasonable doubt. There is no possible suggestion that Mr. Ireland should be disbelieved. At the highest Mr. Bannon, for the Prosecutor, submits that Mr. Ireland is mistaken in his recollection. I do not accept that he was mistaken. His inspection was for the express purpose of preparing a survey of the land. He has considerable experience in surveying mean high water marks ov

er some 22 years. He is adamant that there were no mangroves (other than the possibility of small shoots) above the MHWM on No. 6 Deakin Street. I accept his evidence. It must raise a reasonable doubt as to commission of the offence by the defendant some 2 months later. Indeed, it may be that, taken together with the evidence of the defendant, Mr. Ireland's evidence could lead to a definite conclusion that the defendant did not commit the offence charged by the Council. However, I do not need to go this far.

One last comment! My dismissal of this summons should not be seen as in any way condoning the destruction of mangroves the subject of tree preservation orders. Mangroves do not only provide attractive waterside vegetation but perform very important ecological purposes in estuarine waters. Their wholesale destruction in order to provide better access to the waterfront or better views for landowners is reprehensible in the extreme.

I have already dismissed the summons. The exhibits may be returned and I invite submissions as to costs.