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, having only one road frontage, the need for access was surely foreseeable. However, this does not remove the necessity for obtaining the consent of the Council before destroying trees.

On 23 November 1990, Mr Hewett, Mr P.J. Kavanagh, an environmental planner employed by the Council, and Mr Green, the Council's Ordinance Inspector, visited the subject property. They discovered a dirt road had been built from the St John's Road frontage and then large clearings had been made in the belt leading through to the southern part of the property. Mr Hewett estimated about three hectares of land had been cleared of trees (Transcript p.14). Mr Hewett estimated by extrapolation from other areas that over 3000 trees had been felled. He discovered that a large area at the southern end of the block had been excavated recently for a tank or reservoir. The cleared areas and survey pegs are marked on a plan highlighted in yellow, part of Exhibit C. There was a small bulldozer on the property as well as larger equipment including a scraper. The small bulldozer apparently belonged to the defendant.

Mr Hewett said the defendant admitted he had cleared a small number of trees himself (Transcript pp.27, 40-41). This account was corroborated by Mr Kavanagh (Transcript pp.50-51). Both officers admitted they made no reference to this conversation in their diary notes of the events of that day. Transcript pp.41 and 55. The defendant denied making the admission (Transcript p.66).

I accept the evidence of Mr Hewett and Mr Kavanagh, that on that occasion the defendant said a contractor was operating on the property on his instructions (Transcript p.27) and that the defendant at first asserted that he was unaware of the existence of a tree preservation order and asserted or implied that he believed consent to destroy trees was not required because he land was zoned rural or agricultural (Transcript pp.28 and 49). I also accept that the defendant on that day told Mr Hewett that the contractor had made a mistake and thought the road should go there (Transcript p.28) (referring to a clearing). However, he did not explain what the mistake was.

On that occasion the Council officers observed survey pegs had been placed on the subject land where clearings had been made, as shown on Exhibit C. These were not on the boundaries of the land but inwards from them and the land had been cleared to the vicinity of the pegs. On behalf of the Council it was suggested that the cleared areas closer to the road were indicators for a proposed landing place for seaplanes on the reservoir under construction. The defendant denied this. His evidence, and that of Mr R. Ekinci, lead me to believe that this is an unlikely idea. Rather, I do believe the defendant's account that his activities were directed to the breeding of fish on the property.

On 13 December 1990 the defendant was interviewed at the Council's chambers by Mr Hewett, Mr Green and Mr Kavanagh. On that occasion he said the operator had cleared more than he (Adams) had wanted (Transcript p.32). The operator was named by the defendant as one Mr Paul Barrass. He said he gave Mr Barrass instructions to do the work (Transcript p.34).

At Transcript pp.61-63, the defendant gave evidence of the instructions he said he had given to Mr Barrass about doing the work in the middle of 1990 at Bankstown aerodrome. Persons present at the time were the defendant's wife, Reha Ekinci and the defendant's secretary Bridgette Graham, he said. The terms of the instruction deposed to are as follows:

"Q. If you could - if I could take you to this conversaton about 3 November what did you say to Mr Barrass?

A. I said Paul would you do some works for me at my property in the Central Coast. I want to build a fish farm. I want you to go there and dig a dam for the fish farm and I drew a map of the property and I said the northern part is a wooded part and the southern part covered. It's a flat area and wet, flat and wet and that area is covered with tea trees, small tea trees and the wooded area is the access to that through that flat area where the dam was going to be had to go through the wooded area. And I told him that I would like him to dig the dam as wide as possible for the block which is about 35 metres and also the fish expert explained to me that's about the width it should be not wider, 35 metres or thereabouts and about a metre deep. But because the soil from the banks will be piled up on the side it would appear that the dam is deeper because the metre was below ground. And then I told him also that because I'm a fanatic - tree fanatic I want - I don't want him to touch any trees so drive a track through this wooded area between trees, access track to the dam.

Q. And that's from the north to the south?

A. The northern part of the property and he said yes he will do it.

Q. From your knowledge of the site did you at that time believe it was possible to construct a track leading to the area of the dam without knocking down any trees?

A. Positively yes.

Q. Would any scrub need to have been knocked down in that process?

A. There were some small tea trees yes.

Q. And in your opinion--

A. He would have driven a four wheel drive quite easily between trees if he wanted to."

He said he was not present when Mr Barrass did the work. Again as regards the surveyor, the defendant said at Transcript p.63:

"Q. Was there - did you engage a surveyor at some point?

A. Yes.

Q. And who was the surveyor you engaged?

A. Mr Eldridge - Warren Eldridge.

Q. Warren Eldridge?

A. Yes.

Q. Did you tell him to remove any trees.

A. No I asked him to survey the place so we know there are no fences and no pegs inside the property. I would like - I asked him to have the borders marked."

The defendant went on to say at Transcript pp.63-64 as follows:

"Q. Did you later in November, this is prior to 23 November when you met Mr Hewett on site did you at some time prior to 3 November go out to the property to inspect the work?

A. Yes.

Q. What did you observe when you got out there?

A. When I got there the - I - the clear - Paul already had done the clearing with the small dozer and he cleared and [sic] area which was much larger and involved some trees felling which I did not instruct him and I had at that time very heated conversation with Paul because my instructions were to the contrary. And I said why did you do that. He says in the first place you don't know anything about earth moving, anything about clearing. This has to be a fire trail, fire track and access road as well. So the wooded area I did not touch any trees, only touched the small trees he said.

Q. And I think the roadway through the trees was relatively straight was it not?

A. The roadway was still veering between trees. It wasn't straight, it isn't straight.

Q. And was the work through the wooded area what you had envisaged would occur?

A. Well I envisaged to be much more twisted road because I wanted him to avoid all the trees."

The instruction to Mr Barrass was confirmed in evidence by the defendant's wife, Mrs Shirley Adams, (Transcript p.29 of the second day's hearing) and by Mr Ekinci (Transcript pp.22-23 of the second day's hearing). Mrs Adams stated that Brigette Graham was out of earshot. It was not suggested to either witness in cross-examination that they were not speaking the truth. There was nothing inherently incredible in their evidence. While perhaps not bound to accept that evidence, the Court should be cautious to reject corroborative evidence of the terms of the instruction given to Mr Barrass, which are neither improbable nor suggested to be false. It was not suggested the instructions were a sham, nor that they were later countermanded.

Mr Barrass was not available to give evidence at the hearing and is believed to be in England.

A letter from the defendant's solicitors to Mr Barrass dated 7 August 1991 became Exhibit 2. It asked him to make certain affidavits. I admitted the letter but rejected the affidavits, considering their admittance to be unfair to the Prosecutor. A number of character references for the defendant were tendered without objection and became Exhibit 4. I take into account the fact that the defendant hitherto has been a person of good character.

In the case of Fry v Paterson unreported, a judgment of Stein J. of 24 August 1990, it was held that mens rea was not an element of the offence created by a Tree Preservation Order. I respectfully agree. However, in all the circumstances of this case, I am unable to be satisfied that the defendant was a principal in the first degree or that the defendant aided, abetted, counselled or procured Mr Barrass to carry out the wholesale destruction of trees on the subject property. Tesco Ltd. v Nattrass 1972 AC 153 at 176 appears to be in point. The notion of aiding and abetting involves knowledge of the essential matters which make the act done a crime, and this has not been established to my satisfaction. Giorgianni v The Queen (1985) 156 CLR 473. The same result follows as to the tree cutting by Mr Barrass to facilitate the work of the surveyor, Eldridge.

As regards the defendant's admission to the Council officers that he felled a few trees with his bulldozer, I accept the evidence of those officers in preference to that of the defendant. He was on the site with the bulldozer nearby. There appears to me to be no reason why those officers would invent such a story. While I have given the defendant the benefit of the doubt as to being a principal in the second degree to Mr Barrass' activities, I am not satisfied that he protested very strongly to Mr Barrass. Indeed, Mr Barrass' work was plainly to his advantage. When interviewed first by Council officers, the defendant gave the excuses that he did not know of the Tree Preservation Order and also that the land was rural, meaning thereby that no consent was needed. I permitted the Prosecutor to reopen his case, after being taken by surprise by the defendant advancing for the first time at the hearing his express instructions to Mr Barrass. The Prosecutor then tendered a letter written on behalf of the defendant dated 6 December 1990 which became Exhibit G. This put up a further excuse namely:

"... we endeavoured to maintain as many trees as possible when we were making access to the property."

and also:

"We apologize for starting this work without the Council's permission, but we did not realise that approval was necessary for Rural Properties."

So far as the defendant is concerned, there seems to me to be one or two excuses too many. This letter gives some support to the oral confession to the Council's officers. Insofar as he escapes the charge of aiding and abetting, he never informed the Council of his express instruction to Mr Barrass before the hearing. In this respect the Council was taken by surprise. It was not suggested that the defence of reasonable and honest mistake was available, and I would in any event reject such a claim on the evidence before me.

In all the circumstances, I convict the defendant on the charge in Summons No.50106/91 of removing, injuring or wilfully destroying trees, but dismiss the charge in Summons No.50105/91. It is to be observed that the evidence establishes beyond reasonable doubt, that only a few trees are involved under this charge and I suspect the defendant might well have obtained approval for these, had he made application. On the charge in Summons No.50106/91, I fine the defendant $1,000.00. Because of the late production of his real defence to Summons No.50105/91, it appears to me that I should not follow the normal rule and I refuse to order costs against the Prosecutor on that charge. In the proceedings No.50106/91, much of the evidence was directed to the major tree felling carried out by Mr Barrass and that has not succeeded. As both matters were heard together, and essentially involved the same evidence, I consider it sufficient to direct that the defendant pay a proportion of the Council's taxed costs of both proceedings, but I will hear further submissions on that matter.

As the defendant has not been convicted as a principal in the second degree to Mr Barrass' activities, it appears inappropriate to order restorative tree planting. That appears to be a matter for possible Class 4 proceedings.