Holroyd City Council v Skyton Developments Pty Limited - [2002] NSWLEC 32

Reported Decision: (2002) 119 LGERA 225

Land and Environment Court

of New South Wales

CITATION: Holroyd City Council v Skyton Developments Pty Ltd [2002] NSWLEC 32

PARTIES:
PROSECUTOR
Holroyd City Council
DEFENDANT
Skyton Developments Pty Ltd

FILE NUMBER(S): 50071 of 2001

CORAM: Cowdroy J

KEY ISSUES: Prosecution :-

LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999, s 10
Environmental Planning & Assessment Act 1979, s 125

CASES CITED: Cameron v The Queen [2002] HCA 6;
Camilleri's Stock Feeds Pty Limited v Environment Protection Authority (1993) 32 NSWLR 683 ;
David Mulcahy on behalf of Canterbury City Council v Sudakar Rao, Pearlman J; NSWLEC No 50026 of 1997 and 50027 of 1997: Judgment 10/02/98;
Ku-Ring-Gai Municipal Council v Beaini [2001] NSWLEC 35;
Power v Penthill House Pty Limited & Ors (1993) 80 LGERA 247;
Rao v Canterbury City Council (2000) 112 LEGRA 360 (CA);
R v Thomson; R v Houlton (2000) 49 NSWLR 383;
Ryde City Council v Calleija (1998) 99 LGERA 360;
Siganto v The Queen (1998) 194 CLR 656

DATES OF HEARING: 27/02/02

DATE OF JUDGMENT:
03/14/2002

LEGAL REPRESENTATIVES:

PROSECUTOR
Mr T Howard (Barrister)
SOLICITORS
McKees Legal Solutions
DEFENDANT
Mr M Wright (Barrister)
SOLICITORS
Deacons

JUDGMENT:

IN THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES MATTER No. 50071 of 2001
CORAM: Cowdroy J
DECISION DATE: 14/03/02

Holroyd City Council

Skyton Developments Pty Ltd

JUDGMENT

The Charge

1. By Further Amended Summons the Holroyd City Council (“the prosecutor”) charges Skyton Developments Pty Ltd (“the defendant”) with an offence against s 125 of the Environmental Planning & Assessment Act 1979 (“the EP&A Act”).

2. The charge alleges that on 29 January 2001 at Westmead the defendant breached the prosecutor’s Tree Preservation Order (“the TPO”) made under authority of cl 18 of the Holroyd Local Environmental Plan 1991 by removing a Queensland Firewheel Tree (Stenocarpus sinuatis) and a Crepe Myrtle (Lagerstroemia indica) (“the trees”) contrary to cl 4 of the TPO.

3. Clause 4 of the TPO provides:-

No person shall ringbark, cut down, top, lop, remove, injure or wilfully destroy any tree without first obtaining the written consent of the Council of the City of Holroyd …

4. The defendant acknowledges that each tree was one which required consent for its removal pursuant to the provisions of cl 4 of the TPO and accordingly pleads guilty to the charge.

5. The trees were located on premises known as 23 Parkside Lane Westmead. Such land together with adjoining premises known as 24A Parkside Lane and 24 Parkside Lane (collectively referred to hereafter as “the site”) were the subject of a development application No. 2000/552 made by the defendant to the prosecutor on 16 November 1999 for demolition of three existing houses upon each lot and the construction of a residential flat building.

6. In support of its development application a site meeting was held between representatives of the defendant, the prosecutor and the defendant’s consultant arborist, Mr Danny Draper. At such meeting it was agreed…

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: [2002] NSWLEC 32
Decision Date: 03/14/2002

CaseChat Overview and Summary

The Land and Environment Court of New South Wales was tasked with adjudicating on a case brought by the Holroyd City Council against Skyton Developments Pty Ltd for an alleged breach of a Tree Preservation Order (TPO). The Council accused Skyton Developments of removing two trees, a Queensland Firewheel Tree and a Crepe Myrtle, without obtaining the necessary written consent from the Council, as required by the TPO. Skyton Developments pleaded guilty to the charges, acknowledging that the trees required consent for their removal.

The central legal issue before the court was the appropriate penalty for the breach of the TPO. The Environmental Planning & Assessment Act 1979 (EP&A Act) sets out the maximum penalties for such offences, and the TPO itself specified the maximum penalty. The court also had to consider whether the defence of an honest and reasonable mistake was available, and whether the Crimes (Sentencing Procedure) Act 1999 should be applied to mitigate the penalty.

In its reasoning, the court noted that the breach of a TPO was a serious offence and that the defendant's plea of guilty should result in a reduced penalty. The court rejected the defence of an honest and reasonable mistake as there was no evidence to support it. The court also determined that the benefit of s 10 of the Crimes (Sentencing Procedure) Act 1999 was not applicable in these circumstances. Ultimately, the court imposed a penalty of $15,000, reflecting a 25% reduction for the early guilty plea, and ordered Skyton Developments to pay the Council’s costs.

The court's final orders included the conviction of Skyton Developments for the offence, the imposition of a penalty of $15,000, the requirement for Skyton Developments to pay the prosecutor's costs, and the return of the exhibits. This decision underscores the importance of adhering to TPOs and the consequences of non-compliance, while also acknowledging the mitigating effect of an early guilty plea.

Orders