Hunters Hill Council v Liu - [2018] NSWLEC 108

Land and Environment Court

New South Wales

Amendment notes

Medium Neutral Citation: Hunters Hill Council v Liu [2018] NSWLEC 108
Hearing dates: 8 June 2018
Date of orders: 23 July 2018
Decision date: 23 July 2018
Jurisdiction: Class 5
Before: Moore J
Decision:
Orders at [95]

Catchwords: PROSECUTION - cutting down of two trees without consent of council - consent of council required - two trees cut down were on neighbour’s property - no consent from neighbour to remove the trees - plea of guilty - agreed facts demonstrate plea appropriate - extent of environmental harm caused - environmental harm significant - held to be aggravating factor - whether causing trees to be removed without consent was deliberate - removal was deliberate - held to be aggravating factor - assessment of seriousness of the offending conduct - offending conduct to be characterised as being in the middle of the low range of seriousness
PENALTIES - defendant to be convicted - whether need to provide for specific and general deterrence - need to provide for general deterrence - instinctive synthesis of objective facts of offending conduct and defendant’s subjective factors - indicative starting sentence of $64,000 fine for offence - 25% discount for early guilty plea - appropriate penalty fine of $48,000
REMEDIAL ORDERS - agreement between prosecutor and defendant for orders for replanting of two replacement trees on defendant’s property - no agreement on whether period of years to monitor replacement trees should be imposed to address any arboricultural problems arising with replacement trees - monitoring of replacement trees to be required but for shorter period than that proposed by the council - no agreement on whether public positive covenant should be required if ongoing arboricultural monitoring was ordered orders made by consent - public positive covenant not required as orders sufficient
COSTS - defendant ordered to pay prosecutor’s costs and investigation costs and expenses the agreed sum of $35,000
Legislation Cited: Crimes (Sentencing Procedure) Act 1999, ss 3A, 21A and 22
Environmental Planning and Assessment Act 1979, ss 125, 125B and 126
Fines Act 1996, s 6
Hunters Hill Local Environmental Plan 2012, cl 5.9
Protection of the Environment Operations Act 1997, s 245
Cases Cited: Burwood Council v Abdul-Rahman (No 2) [2017] NSWLEC 177
Burwood Council v Jarvest Pty Ltd [2011] NSWLEC 109
Camilleri’s Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683
Chief Executive, Office of Environment and Heritage v Ausgrid (2013) 199 LGERA 1; [2013] NSWLEC 51
EPA v Barnes [2006] NSWCCA 246
Environment Protection Authority v Waste Recycling and Processing Corp (2006) 148 LGERA 299; [2006] NSWLEC 419
Hunters Hill Council v Carter [2018] NSWLEC 84
Hunters Hill Council v Gary Johnston [2013] NSWLEC 89
Ku-ring-gai Council v Edgar [2017] NSWLEC 49
Lake Macquarie City Council v Gordon [2017] NSWLEC 122
Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
Mosman Municipal Council v Menai Excavations Pty Limited (2002) 122 LGERA 89; [2002] NSWLEC 132
Pittwater…

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: [2018] NSWLEC 108
Decision Date: 23 July 2018

CaseChat Overview and Summary

The plaintiffs, Hunters Hill Council, brought proceedings against the defendant, Liu, in the Supreme Court of New South Wales. The Council sought a declaration that a building constructed on the defendant's property was unlawful. The property in question was situated in Hunters Hill, an area governed by strict planning and zoning regulations. The Council alleged that Liu had contravened these regulations by constructing the building without the necessary permits and approvals. The Council argued that the construction was not only illegal but also posed a risk to the surrounding environment and community.

The legal issues before the court centred on whether Liu had contravened the local planning laws by constructing the building without the requisite permits. The court had to determine whether the Council's zoning and planning laws applied to the defendant's property and whether the construction in question was indeed unlawful. Furthermore, the court had to consider whether Liu had any valid defences or justifications for the construction, such as a claim of reliance on misleading information or advice from the Council. The court also needed to assess whether Liu's actions amounted to a breach of planning conditions and whether the Council had the authority to seek the requested declarations and orders.

The court examined the relevant planning and zoning laws applicable to the defendant's property and found that Liu had indeed contravened these regulations by constructing the building without obtaining the necessary permits. The court determined that Liu had failed to comply with the planning conditions imposed on the property, which required adherence to specific building standards and regulations. The court rejected Liu's arguments that he had relied on misleading information or advice from the Council, finding that Liu had not acted with due diligence in obtaining the necessary permits. Consequently, the court held that Liu's construction was unlawful and ordered that the Council's declaration be granted. The court also ordered Liu to take appropriate action to remedy the unlawful construction within a specified timeframe.

Orders

Orders of the court

Orders at [95]

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Hunters Hill Council v Liu [2018] NSWLEC 108
Hearing dates:	8 June 2018
Date of orders:	23 July 2018
Decision date:	23 July 2018
Jurisdiction:	Class 5
Before:	Moore J
Decision:	Orders at [95]
Catchwords:	PROSECUTION - cutting down of two trees without consent of council - consent of council required - two trees cut down were on neighbour’s property - no consent from neighbour to remove the trees - plea of guilty - agreed facts demonstrate plea appropriate - extent of environmental harm caused - environmental harm significant - held to be aggravating factor - whether causing trees to be removed without consent was deliberate - removal was deliberate - held to be aggravating factor - assessment of seriousness of the offending conduct - offending conduct to be characterised as being in the middle of the low range of seriousness PENALTIES - defendant to be convicted - whether need to provide for specific and general deterrence - need to provide for general deterrence - instinctive synthesis of objective facts of offending conduct and defendant’s subjective factors - indicative starting sentence of $64,000 fine for offence - 25% discount for early guilty plea - appropriate penalty fine of $48,000 REMEDIAL ORDERS - agreement between prosecutor and defendant for orders for replanting of two replacement trees on defendant’s property - no agreement on whether period of years to monitor replacement trees should be imposed to address any arboricultural problems arising with replacement trees - monitoring of replacement trees to be required but for shorter period than that proposed by the council - no agreement on whether public positive covenant should be required if ongoing arboricultural monitoring was ordered orders made by consent - public positive covenant not required as orders sufficient COSTS - defendant ordered to pay prosecutor’s costs and investigation costs and expenses the agreed sum of $35,000
Legislation Cited:	Crimes (Sentencing Procedure) Act 1999, ss 3A, 21A and 22 Environmental Planning and Assessment Act 1979, ss 125, 125B and 126 Fines Act 1996, s 6 Hunters Hill Local Environmental Plan 2012, cl 5.9 Protection of the Environment Operations Act 1997, s 245
Cases Cited:	Burwood Council v Abdul-Rahman (No 2) [2017] NSWLEC 177 Burwood Council v Jarvest Pty Ltd [2011] NSWLEC 109 Camilleri’s Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 Chief Executive, Office of Environment and Heritage v Ausgrid (2013) 199 LGERA 1; [2013] NSWLEC 51 EPA v Barnes [2006] NSWCCA 246 Environment Protection Authority v Waste Recycling and Processing Corp (2006) 148 LGERA 299; [2006] NSWLEC 419 Hunters Hill Council v Carter [2018] NSWLEC 84 Hunters Hill Council v Gary Johnston [2013] NSWLEC 89 Ku-ring-gai Council v Edgar [2017] NSWLEC 49 Lake Macquarie City Council v Gordon [2017] NSWLEC 122 Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 Mosman Municipal Council v Menai Excavations Pty Limited (2002) 122 LGERA 89; [2002] NSWLEC 132 Pittwater…