Byron Shire Council v Peter Vos 1998] NSWLEC 322 (5 November 1998)

[1998] NSWLEC 41

Land and Environment Court

of New South Wales

CITATION:	BYRON SHIRE COUNCIL v. PETER VOS 1998] NSWLEC 322 (5 November 1998) [1998] NSWLEC 41
PARTIES:	BYRON SHIRE COUNCIL v. PETER VOS 1998] NSWLEC 322 (5 November 1998)
FILE NUMBER(S):	50128 of 1998
CORAM:	Sheahan J
KEY ISSUES:	:-
LEGISLATION CITED:	Section 76 Environmental Planning & Assessment Act 1979
CASES CITED:	Clark v The EPA (Bignold J, 60002/97, 9 December 1997; Morrison v Ausmarine Fisheries Pty Ltd & Miato (Bignold J, 88 LGERA 442; The Director General of Land and Water Conservation v Jones (Lloyd J, 50067/97, 1 April 1998; Ryde City Council v Compagnon (Lloyd J, 50082/97, 16 March 1998; Ryde City Council v Colleija, Ryde City Council v Compagnon
DATES OF HEARING:	5 November 1998
EX TEMPORE JUDGMENT DATE :	11/05/1998
LEGAL REPRESENTATIVES:	Mr B Hudson Mr G Newport

JUDGMENT:

1. The defendant in this matter is a consulting engineer and company director. He and his wife live in Sydney but they, or more accurately, their family company has or have owned for some eighteen months a forty-four hectare rural residential property on Sheaffes Road in the area governed by the prosecuting council.

2. Mr & Mrs Vos intend to reside there permanently in due course and grow macadamia nuts on some eight to ten hectares of the forty-four hectares comprising the property. With a view to planting a large number of macadamia nut trees some limited land clearing has been undertaken, but no consent was sought or obtained from the council. Indeed there is no evidence that any inquiry was made as to council's requirements or as to the likelihood of the relevant consent being granted.

3. The planning regime in place includes relevant provisions of the Byron LEP, a tree preservation order, gazetted on 6 September 1996, and the application of some of the model provisions.

4. The defendant pleads guilty to a charge of breaching section 76 of the Environmental Planning and Assessment Act 1979 by carrying out development, without the required consent, in respect of the removal of twelve large native trees, particularised in the summons, shown in various exhibits, and agreed to be covered by the tree preservation order.

5. The evidence indicates quite substantial native vegetation cover on the subject land and the defendant's case is that he removed or caused to be removed "undesirable" trees, which are exempt from the tree preservation order, such as camphor laurels which grew on the boundaries between the relatively clear areas suitable for agricultural use and the denser native vegetation surrounding them.

6. The defendant's case is further that he retained a local contractor to carry out bulldozer clearing work in anticipation of the arrival of a large number of macadamia trees. He thought that limited clearing of native vegetation for such purposes was allowed without consent, and the contractor apparently did not suggest any approval be sought.

7. The subject clearing took place on or about 16 1998 and two telephone complaints were made to the council. An inspection and investigation by the senior council officer Mr Montgomery followed. Work voluntarily ceased and Mr Vos and his contractor Mr Somerville were very co-operative with the council.

8. As there is very little dispute about the facts of the matter, I do not need to set out all the evidence that the Court has received from Messrs Montgomery and Vos.

9. However, the substantial nature and the healthy condition of the subject trees is clear from the photographic, video tape, and measurement evidence, and, even though Mr Vos contests the height estimates of the trees, the twelve which are the subject of the charge are clearly within the parameters set by the tree preservation order, particularly as to height in excess of three metres, and as to the species involved.

10. Mr Vos provided an explanation of his behaviour and his intentions in his letter to Mr Montgomery dated 30 March 1998 , and has been in constructive negotiations with the council ever since about remediation. The parties have agreed on the remediation works which Mr Vos should undertake and he is prepared to do them whether or not a conviction is recorded against him.

11. On his behalf his counsel, Mr Newport, submits that Mr Vos should be given the benefit of section 556A of the Crimes Act , or at least, if a conviction is in fact recorded against him, that no monetary penalty should be imposed.

12. During the adjournment I took advantage of the opportunity to consider in more depth the cases to which I have been referred such as Clark v The EPA (Bignold J, 60002/97, 9 December 1997), Morrison v Ausmarine Fisheries Pty Ltd & Miato (Bignold J, 88 LGERA 442) The Director General of Land and Water Conservation v Jones (Lloyd J, 50067/97, 1 April 1998 ) and Ryde City Council v Compagnon (Lloyd J, 50082/97, 16 March 1998 ) and I have come to the conclusion that the application of section 556A is not appropriate in this factual situation.

13. However, all that was put comprehensively to me by Mr Newport has been considered on the question of mitigation: Such issues as the immediate and consistent co-operation of the defendant, the immediate and continued plea of guilty, his willingness to undertake substantial remediation works worth approximately $15,000, his constructive negotiations to this effect, the ongoing commitment agreed to in respect of the revegetation, and the embarrassment, cost and inconvenience which have been occasioned to Mr Vos and his wife as a result of this incident.

14. Also, the need for general deterrence of the community in matters of this kind must be weighed against the good record of the defendant.

15. After consideration of all these matters I find the offence proved and I convict the defendant accordingly.

16. The appropriate penalty to be imposed is to be arrived at on the basis of the principles clearly espoused in recent times by my colleagues in the Court in Ryde City Council v Colleija, Ryde City Council v Compagnon , both decisions of his Honour Mr Justice Lloyd, and Sutherland Shire Council v Holt , a decision of his Honour Mr Justice Bignold, the details of which and the outcome of which need not be recited again in this judgment.

17. In the circumstances of the defendant's contrition, his co-operation, his early plea, and his consent to an order under section 126(3) of the Environmental Planning and Assessment Act 1979, I have come to the conclusion that the appropriate penalty is a fine of $10,000, which I note is two-thirds of the fine imposed on a similar factual situation in Colleija .

18. Accordingly the formal orders of the Court will be:

1. The defendant is convicted of the offence as charged.

2. The defendant is fined the sum of $10,000.

3. Pursuant to section 126(3) of the Environmental Planning and Assessment Act 1979 and by consent, the orders set out in Exhibit C4 are made against the defendant.

4. The defendant will be further ordered to pay the prosecutor's costs as they may be agreed or assessed according to law and;

5. The exhibits may be returned with the exception of the form of consent orders in Exhibit C4 .

19. HIS HONOUR: Is there any question of time to pay Mr Newport.

NEWPORT: No I think that's covered by the Fines Act now I think your Honour.

HIS HONOUR: You don't want a specific time allowed.

NEWPORT: The period I think is 28 days.

HIS HONOUR: I'll hear you on this too Mr Hudson if you wish.

NEWPORT: My instructions are to seek six months your Honour. If your Honour consider that.

HUDSON: Your Honour I don't really have any submissions, I don't think the council really has a problem with that.

HIS HONOUR: I order that the fine be paid within six months of todays' date and the costs be paid within six months of either agreement or finalisation of the assessment process.

I HEREBY CERTIFY THAT THIS AND THE PRECEDING 4 PAGES ARE A TRUE AND ACCURATE RECORD OF THE REASONS FOR JUDGMENT HEREIN OF THE HONOURABLE JUSTICE T.W. SHEAHAN.

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