Chia v Ku-ring-gai Council - [2021] NSWCCA 189

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Chia v Ku-ring-gai Council [2021] NSWCCA 189
Hearing dates: 22 February and 18 June 2021
Date of orders: 20 August 2021
Decision date: 20 August 2021
Before: Hoeben CJ at CL at [1]
Harrison J at [2]
Wilson J at [78]
Decision:
(1) Allow the appeal against conviction.
(2) Quash the conviction.
(3) Order a new trial.

Catchwords:
ENVIRONMENTAL OFFENCES – appeal – appeal against conviction – where defendant appeals against conviction for injuring trees the subject of a Tree Preservation Order without consent contrary to s 125 of Environmental Planning and Assessment Act 1979 – whether defendant vicariously liable for actions of independent contractor and his subcontractors – assessment of nature and terms of instruction given and any qualifications to that instruction – whether trial judge failed to consider defence argument that defendant instructed contractor to comply with 10/50 Code – whether the instruction that contractor comply with 10/50 Code would operate as a qualification upon the width of general instructions amounting to an instruction not to fell trees beyond the 10/50 zone – conviction quashed – new trial ordered

Legislation Cited:
Environmental Planning and Assessment Act 1979 (NSW) s 125
Native Vegetation Act 2003 (NSW)
Rural Fires Amendment (Vegetation Clearing) Act 2014 (NSW)
Rural Fires Act 1997 (NSW)

Cases Cited:
Coffs Harbour City Council v Hickey [2004] NSWLEC 531
Darling Island Stevedoring and Lighterage Company Ltd v Long (1957) 97 CLR 36; [1957] HCA 26
Director-General, Department of Environment and Climate Change v Walker Corporation Pty Ltd (No 2) [2010] NSWLEC 73
Environmental Protection Authority v McConnell Dowell Constructors (Aust) Pty Ltd (2003) 128 LGERA 240; [2003] NSWLEC 70
Kondis v State Transport Authority (1984) 154 CLR 672; [1984] HCA 61
Ku-ring-gai Council v John David Chia (No 15) [2019] NSWLEC 1
Ku-ring-gai Council v John David Chia (No 16) [2019] NSWLEC 184
North Sydney Council v Moline; North Sydney Council v Tomkinson (No 2) [2008] NSWLEC 169
Stoneman v Lyons (1975) 133 CLR 550; [1975] HCA 59

Category: Principal judgment
Parties: John David Chia (Appellant)
Ku-ring-Gai Council (Respondent)
Representation:
Counsel:
S Dowling SC with D Beaufils and S Gaussen (Appellant)
D Buchanan SC with N Hammond (Respondent)
Solicitors:
Karim and Nicol Lawyers (Appellant)
HWL Ebsworth Lawyers (Respondent)

File Number(s): 2020/20244
Publication restriction: Nil
Decision under appeal

Court or tribunal:

Land and Environment Court of NSW

Jurisdiction:

Criminal

Citation:

[2019] NSWLEC 1 and [2019] NSWLEC 184

Date of Decision:

31 January 2019 and 29 November 2019

Before:

Robson J

File Number(s):

2016/293131

Judgment

HOEBEN CJ at CL: I agree with Harrison J and the orders which he proposes.
HARRISON J: John Chia appeals against his conviction on 31 January 2019 and sentence on 29 November 2019 by Robson J in the Land and Environment Court on a single count that he caused injury to 74 trees the subject of the Ku-ring-gai Council Tree Preservation Order without consent contrary to s…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2021] NSWCCA 189
Decision Date: 20 August 2021

CaseChat Overview and Summary

Chia appealed against a conviction for injuring trees subject to a Tree Preservation Order without consent, contrary to section 125 of the Environmental Planning and Assessment Act 1979. The dispute involved whether the defendant could be held vicariously liable for the actions of an independent contractor and his subcontractors who carried out the tree felling without the necessary consent. The central issue was the nature and terms of the instructions given by the defendant, and whether these instructions qualified the general directive to the contractor.

The court examined the instructions given by the defendant to the contractor and assessed whether these instructions qualified the general directive to the point of instructing the contractor not to fell trees beyond the 10/50 zone, as stipulated in the 10/50 Code. It was also considered whether the trial judge failed to adequately consider the defence argument that the defendant had instructed the contractor to comply with the 10/50 Code. The court found that the defendant had indeed instructed the contractor to comply with the 10/50 Code, which operated as a qualification to the general instruction, thereby limiting the scope of the work to be carried out. This instruction effectively meant that no trees beyond the 10/50 zone were to be felled.

The appeal was allowed, and the conviction was quashed. The court ordered a new trial to allow for a full consideration of the defendant's instructions to the contractor, and the potential qualification of these instructions. This decision highlights the importance of clear communication of instructions when dealing with independent contractors, particularly in contexts where specific legal compliance is required.

Orders