Hornsby Shire Council v Moit

[2001] NSWLEC 50

Land and Environment Court

of New South Wales

CITATION:	Hornsby Shire Council v Moit [2001] NSWLEC 50 revised - 28/03/2001
PARTIES:	PROSECUTOR: Hornsby Shire Council DEFENDANT: Michael Moit
FILE NUMBER(S):	50023 of 2000 and 50024 of 2000
CORAM:	Lloyd J
KEY ISSUES:	Environmental Offences :- breach of tree preservation order - development without consent - penalty
LEGISLATION CITED:	Electricity (Overhead Line Safety Regulation) 1991 cl 23 Environmental Planning and Assessment Act s 125 s 126 Forestry Act 1916 Hornsby Local Environmental Plan 1994 cl 8 National Parks and Wildlife Act 1974 Noxious Weeds Act 1993
CASES CITED:
DATES OF HEARING:	26/02/2001
DATE OF JUDGMENT:	02/26/2001
LEGAL REPRESENTATIVES:	PROSECUTOR: Mr D P Wilson (Barrister) SOLICITORS: Michell Sillar DEFENDANT: Mr P R Clay (Barrister) SOLICITORS: John B Hajje & Associates

JUDGMENT:

7

Hornsby Shire Council

Prosecutor

v
Michael Moit

Defendant

EXTEMPORE JUDGMENT

HIS HONOUR:

1. The defendant has pleaded guilty to two offences against section 125 of the Environmental Planning and Assessment Act 1979 (“the EP&A Act”). The offences arise because section 76A(1) of that Act provides:

76A (1) General If an environmental planning instrument provides that specified development may not be carried out except with development consent, a person must not carry the development out on land to which the provision applies unless:

(a) such a consent has been obtained and is in force...

2. The first offence, in proceedings No. 50023 of 2000, is that between 19 December and 22 December 1999 at Mount Kuring-gai the defendant removed and wilfully destroyed trees to which a tree preservation order made under the Hornsby Local Environmental Plan 1994 applied, without the consent of Hornsby Shire Council.

3. The second offence arises out of the same incident. In those proceedings, No. 50024 of 2000, it is said that the defendant between 19 December and 22 December 1999 at Mount Ku-Rring-Gai carried out development on land without the consent of Hornsby Shire Council contrary to the provisions of that Act.

4. Section 126 of the EP& AAct provides for a penalty which, at the time the offence was committed, was $110,000 for each offence. Moreover, sub-section 126(3) also provides as follows:

(3) Where a person is guilty of an offence involving the destruction of or damage to a tree or vegetation, the court dealing with the offence may, in addition to or in substitution for any pecuniary penalty imposed, direct that person:

a) to plant new trees and vegetation and maintain those trees and vegetation to a mature growth, and
b) provide security for the performance of any obligation imposed under paragraph (a).

5. The offences were committed on land known as Nos. 12 and 14 Yatala Road, Mount Kuring-gai. That land is subject to control under the Hornsby Local Environmental Plan 1994. The land is zoned Industrial B (Light). It is accepted that the clearing of land for any purpose is development for which development consent is required in such a zone.

6. Clause 8 of the Hornsby Local Environmental Plan refers to tree preservation orders. It provides:
8 (1) The council may make, revoke or amend a tree preservation order.
(2) A person shall not carry out or permit or direct or cause any ringbarking, cutting down, topping, lopping, removing or wilful destruction of any tree or trees to which a tree preservation order applies without the consent of the Council. This does not apply to or in respect of:
a) trees within a state forest or within a timber or forest reserve within the meaning of the Forestry Act 1916; or
b) trees in a National Park within the meaning of

the National Parks and Wildlife Act 1974; or

c) action required by cl 23 of the Electricity (Overhead Line Safety) Regulation 1991; or
d) plants declared to be noxious weeds under the Noxious Weeds Act 1993.
(3) A tree preservation order and any revocation or amendment of such order, does not have effect until it has been published in a newspaper circulating in the area of the Council.

7. On 12 June 1996 Hornsby Shire Council published a tree preservation order pursuant to clause 8 of the Hornsby Local Environmental Plan. That order prohibited the destruction of any tree to which the order related except with the written consent of the council. The order applies to all trees located within the Hornsby local government area, with the exception of certain named species.

8. In pleading guilty to the two offences the defendant admits the essential elements of each offence, that is to say the defendant admits that the tree preservation order was duly made and that trees were cut down contrary to that order. The defendant also admits that in cutting down the trees he was carrying out development without development consent contrary to section 76A of the EP&A Act.

9. The relevant facts are derived variously from a statement of agreed facts and from affidavit evidence and further oral evidence given before me this morning. Those facts may be briefly described.

10. At the time of the offences, that is between 19 and 22 December 1999, No. 12 Yatala Road was owned by the defendant Michael Moit, George Moit and Tony Moit as tenants in common in equal shares. At the relevant date the then registered proprietors of No. 14 Yatala Road, Mount Kuring-gai, had entered into a contract for the sale of that property to the defendant Michael Moit, George Moit, Tony Moit, Amanda Hajje and Joseph Hajje. Those persons became the registered proprietors of No. 14 Yatala Road on 11 January 2000.

11. It is agreed that the trees on the land are not and were not, on 22 December, situated within a state forest or within a timber or forest reserve within the meaning of the Forestry Act 1916, nor situated within a National Park within the meaning of the National Parks and Wildlife Act 1974, nor subject to any action required by clause 23 of the Electricity (Overhead Line Safety) Regulation 1991, nor were they plants declared to be noxious under the Noxious Weeds Act 1993. It is agreed that between about 19 and 22 December 1999 the defendant removed or destroyed forty-nine trees without the council’s consent.

12. The effect of removing the trees had certain consequences. According to the evidence the vegetation community is a sandstone ridge-top open woodland dominated by red bloodwood, scribbly gum, grey gum and silver top ash. This vegetation is said to be under considerable threat from increasing urban expansion due to the terrain of the Hornsby Shire where ridge tops are preferred development areas. I accept that the council considers these areas are important and applications made to the council for development consent are very carefully assessed for their possible impact on the woodland communities. The occurrence of silver top ash is considered uncommon in Hornsby Shire because it is near the western limit of its range.

13. The clearing will have a detrimental impact upon the bushland below the cleared area. The bushland below the cleared area is habitat for threatened biota, including the Powerful Owl Ninox strenua, the Red-crowned Toadlet Pseudophryne australis and certain plant species, in particular Darwinia biflora and Tetratheca glandulosa. These two plant species are threatened species and both the Powerful Owl and the Red-crowned Toadlet are threatened species. It was observed that among the vegetation which had been pulled out from the ground was the Native Christmas Bell, which is a protected species listed in schedule 13 of the National Parks and Wildlife Act. I accept, however, that it is not an offence to cut that plant when found growing on one’s own land.

14. Evidence has been adduced before me by an ecologist, Mr C R Williams, who states that Darwinia biflora is very common in the area and its removal would not have any significant impact on the local population. He also states that Tetratheca glandulosa is a heathland species which is reasonably common locally and if there has been any loss he does not consider there would have been any significant impact on the local population. He also states that it is possible that some of the vegetation removed would have provided foraging habitat for the Powerful Owl, but its loss would have no significant impact on the Powerful Owl, there being a mass of foraging habitat available to it in the immediate vicinity of the land.

15. In Mr Williams’ opinion there was no part of the cleared area which was habitat for the Red-crowned Toadlet; but there is a potential for impact on the Red-crowned Toadlet in the event of any uncontrolled run-off from the cleared area. With sediment and erosion control measures in place, however, there is little or no impact on the Red-crowned Toadlet. Mr Williams also expresses the view that development should generally be limited to the upper part of the land and that in any development there would inevitably be tree loss, but the most important aspect of any development is likely to be management of the run-off from the site.

16. There is other evidence before me that the soil on the subject land is highly erodable and of a type which creates a high potential for sedimentation of adjoining bushland. Finally, there is further evidence that the clearing that has taken place has created a habitat for weed growth, which has since occurred.

17. The defendant both furnished an affidavit and gave evidence. He is an employee of N Moit & Sons Earthworks Pty Limited, which is a family company of which he is a co-owner. That company provides services in demolition, excavation, remediation and civil works. According to documents provided by him the company includes, amongst its activities, the carrying out of earthworks.

18. In 1998 the company made a development application to use lot 12 for a materials recycling facility, which council refused. That application was supported by a Species Impact Statement prepared by Mr Williams. It identified the species to which I have referred and the measures required to take account of the existence of those species. Mr Moit says that he carried out clearing of the upper portion of the land only on the basis that ultimately he would be able to do so when an industrial development was approved in due course. Mr Moit said that he was aware of the previous development application, that he had consulted a consultant town planner, Mr K Willis, that he knew of the fact that a Species Impact Statement had been prepared by Mr Williams, that part of that development application was to clear land and he knew that it had been refused by the council. He also states that he knew he had no development consent to do what he did and knew that development consent was required for what he did.

19. In considering the question of penalty I have regard to the facts to which I have referred, including the potential for environmental harm. I am mindful of the fact that the defendant’s business includes earthmoving so that he, more than anyone else perhaps, ought to have been aware that clearing the land of forty-nine trees was an activity which was unlawful in the absence of any consent. It also seems from the evidence that the defendant was aware of the need for an assessment of the impact of development before development is carried out. That conclusion is patently obvious from the fact that a Species Impact Statement was prepared by Mr Williams in support of the development application that had been refused.

20. I take into account, as I am required to do by section 22 of the Crimes (Sentencing Procedure) Act 1999, the fact that the defendant has pleaded guilty to this offence and I accept that the plea of guilty was entered relatively early in the proceedings. In my opinion a discount in the order of some 20 per cent should be applied to the penalty that would otherwise be imposed on account of the guilty plea.

21. One also has to bear in mind the deterrent effect of a penalty and the principle of proportionality. That is to say, although the defendant has been charged with two offences, the total penalty should reflect the fact that both offences arose out of the one incident.

22. The defendant also says that he is prepared to carry out a remediation plan. A remediation plan has been prepared by Mr P W B Nicholls, the Hornsby Shire Council’s tree management coordinator. Pursuant to section 126(3) of the EP&A Act an order will be made requiring the defendant to implement that rehabilitation plan.

23. In my opinion the facts of this case call for a combined penalty for the two offences of $50,000 which is, as I have said, reduced to $40,000 on account of the plea of guilty.

24. The formal orders, therefore, will be as follows:

In proceedings No. 50023 of 2000:

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

2. The defendant is fined a penalty in the sum of $27,000.00.

3. The defendant is ordered to pay the prosecutor’s costs in accordance with

section 52(2) of the Land and Environment Court Act 1979.

4. Pursuant to section 126(3) of the Environmental Planning and Assessment

Act 1979 the defendant is ordered to carry out the works described in the Landscape Rehabilitation Plan being Annexure “B” to the affidavit of P W B Nichols sworn on 15 February 2001, with additions made as follows:

(1) In sub-paragraph 1 add words “seven (7) days”;

(2) In sub-paragraph 3 add word “forthwith”;

(3) In sub-paragraph 4 add words “within twenty one (21) days” at the end of first sentence.

5. The exhibits may be returned.

In proceedings No. 50024 of 2000:

1. The defendant is convicted of the offence as charged

2. The defendant is fined a penalty in the sum of $13,000.00.

3. The defendant is ordered to pay the prosecutor’s costs in accordance with

section 52(2) of the Land and Environment Court Act 1979.

4. I make the same remediation order as in proceedings No. 50023 of 2000.

5. The exhibits may be returned.