Hewett v Adams [1991] Nswlec 104 (2 October 1991) - [1991] NSWLEC 104

Land and Environment Court

of New South Wales

CITATION: Hewett v Adams [1991] NSWLEC 104 (2 October 1991) [1991] NSWLEC 1

PARTIES: Hewett v Adams [1991] NSWLEC 104 (2 October 1991

FILE NUMBER(S): 50105,50106 of 1991

CORAM:

KEY ISSUES: :-

LEGISLATION CITED: Environmental Planning and Assessment Act, 1979 ("EPA Act")
Local Government Act, 1919.

CASES CITED: Fry v Paterson ;
Tesco Ltd. v Nattrass 1972 AC 153 at 176 ;
Giorgianni v The Queen (1985) 156 CLR 473

DATES OF HEARING:

DATE OF JUDGMENT:
10/02/1991

LEGAL REPRESENTATIVES:
APPLICANT
RESPONDENT

JUDGMENT:

These prosecutions commenced on 10 May 1991. The defendant, George Adams, was charged with two offences alleging breach of a Tree Preservation Order made by the Council of the Shire of Wyong ("the Council"). The offences were alleged to have occurred on or about 16 November 1990.

Summons No.50106/91 charged that the defendant on or about 16 November 1990 removed, injured or wilfully destroyed trees on land known as Lot 26 D.P.228750, St John's Road, Warnervale contrary to a Tree Preservation Order.

Summons No.50105/91 charged that the defendant on or about 16 November 1990 aided, abetted, counselled or procured another person or persons to remove, injure or wilfully destroy trees on land known as Lot 26 D.P.228750, St John's Road, Warnervale, contrary to a Tree Preservation Order.

To both charges the defendant pleaded not guilty, and the proceedings were heard together.

The prosecutor, Mr P.D. Hewett, is the Tree Manager of the Council. Consent of the Minister given on 14 March 1991 pursuant to s.127(6) of the Environmental Planning and Assessment Act , 1979 ("EPA Act") to the commencement of the prosecutions by the Council was established (Exhibit B).

However, it was submitted that Mr Hewett was not authorised by the Minister to institute the prosecutions. Section 151 of the EPA Act enables a council by resolution to delegate functions imposed upon it by or under the Act to an officer or servant of the Council. Copies of resolutions stated to be pursuant to s.125 became Exhibit A. In any event the Prosecutor was entitled to rely upon the provisions of s.616(h) of the Local Government Act , 1919.

The land in question at relevant times was owned by the defendant. It is a long rectangular block about 10 hectares in area with a frontage to the North of 100 metres to St John's Road and a depth of about 1 kilometre. A large part of the block at its Northern end was fairly densely covered with trees of such girth or height as to require Council's consent before destruction. No such consent was ever obtained by the defendant. To obtain access to the cleared land to the South, it is obvious that sooner or later the Council would have been obliged to exercise its discretion to grant development approval to build a road into the land thus leading to the destruction of a number of trees. When subdivisional consent was granted for elongated blocks such as the present one,…

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.

Continue reading Hewett v Adams [1991] Nswlec 104 (2 October 1991)

Details

AGLC: Hewett v Adams [1991] NSWLEC 104 (2 October 1991) [1991] NSWLEC 1
Case: [1991] NSWLEC 104
Decision Date: 10/02/1991

CaseChat Overview and Summary

The case of Hewett v Adams before the Land and Environment Court of New South Wales involved a prosecution by the Council of the Shire of Wyong against George Adams for alleged breaches of a Tree Preservation Order. The defendant was charged with removing, injuring, or wilfully destroying trees on his property without obtaining necessary consent, as well as aiding, abetting, counselling, or procuring another to do the same. The central issue was whether Adams was guilty of these offences under the Environmental Planning and Assessment Act, 1979 and the Local Government Act, 1919. The court had to determine if Adams had the requisite mens rea and if he was a principal or accessory to the acts committed by the person who carried out the tree destruction.

The court examined the evidence presented and found that while Adams admitted to some involvement, he claimed he had instructed the contractor, Mr. Barrass, to avoid cutting down trees. The court accepted the testimony of Council officers who observed Adams using a bulldozer to clear a few trees, despite his denials. However, the court was not satisfied that Adams had aided, abetted, counselled, or procured Barrass to commit the offences as he did not have the necessary knowledge of the illegality of the actions taken. The court also found that Adams' late introduction of his defence regarding his instructions to Barrass was unfair to the prosecutor, leading the court to decline to order costs against the prosecutor for the dismissed charge. Ultimately, the court convicted Adams of the lesser charge of removing a few trees himself and fined him $1,000, while dismissing the more serious charge of aiding and abetting tree destruction.

Orders