Ku-Ring-Gai Municipal Council v Beaini

[2001] NSWLEC 30

Reported Decision: 112 LGERA 397

Land and Environment Court

of New South Wales

CITATION:	Ku-Ring-Gai Municipal Council v Beaini [2001] NSWLEC 30
PARTIES:	PROSECUTOR Ku-Ring-Gai Municipal Council DEFENDANT Beaini
FILE NUMBER(S):	50028 of 2001
CORAM:	Bignold J
KEY ISSUES:	Environmental Offences :- Contravention of Tree Preservation Order - Maximum penalty prescribed for such offence
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979, s 126(1)
CASES CITED:	Cooper v Coffs Harbour City Council (1997) 97LGERA 125; Hornsby Shire Council v Winsloe (1998) 101LGERA 117; Rao v Canterbury City Council, ((200) NSWCCA 471
DATES OF HEARING:	21/02/01
EX TEMPORE JUDGMENT DATE :	02/21/2001
LEGAL REPRESENTATIVES:	PROSECUTOR Ms J Hewitt, Solicitor SOLICITORS Abbott Tout DEFENDANT Mr D Baird, Solicitor SOLICITORS Price Waterhouse Coopers Legal

JUDGMENT:

IN THE LAND AND

Matter No. 50028 of 2000

ENVIRONMENT COURT OF

Coram: Bignold J.

NEW SOUTH WALES

21 February 2001

KU-RING-GAI COUNCIL

Prosecutor

v

BEAINI, BUDDY

Defendant

JUDGMENT

Bignold J:

1. At the conclusion of the reception of evidence adduced on the hearing of a charge of an offence against the Environmental Planning and Assessment Act 1979 (EP&A Act), s 125 involving a contravention of the Council’s Tree Preservation Order (the TPO), to which charge the Defendant has entered a plea of guilty, and has adduced evidence in mitigation of sentence, a vital issue has arisen between the parties as to the true nature and extent of the maximum penalty prescribed for such an offence.

2. The Solicitor for the Prosecutor, in her submissions, has argued that the maximum penalty is that prescribed by the EP&A Act, s 126(1), namely 1000 penalty units.

3. A penalty unit is defined by the Crimes (Sentencing Procedure) Act 1999, s 17 as $110. Applying this definition to the EP&A Act, s 126(1), produces the maximum penalty of $110,000. However, that penalty applies, in terms, only if no other penalty is “expressly imposed” for the offence.

4. It is to be noted that by the Environmental Planning and Assessment Amendment Act 1999 (Act No 72 of 1999) the maximum penalty prescribed by s 126(1) has been increased to 10,000 penalty units, thereby yielding a maximum penalty of $1.1 million.

5. However, the amendment to s 126(1) made by that amending Act did not come into force until 1 February 2000 (ie on a date subsequent to the commission of the admitted offence in the present case which occurred between 5 - 20 January 2000). Accordingly, by virtue of the Crimes (Sentencing Procedure) Act 1999, s 19(1), the increased penalty does not apply in the present case but only applies to offences committed after the commencement of the amendment (ie 1 February 2000).

6. Although the Solicitor for the Defendant has advanced a competing submission to the effect that the maximum penalty in respect of the admitted offence is $20,000, being the amount that is specified in the TPO (which was made by the Council on 21 March 1995) he has submitted that acceptance of the Prosecutor’s submission involves the potential for inflicting serious prejudice both to the Defendant personally, and to the integrity of the proper working of the criminal justice system involved in the present case, having regard to the fact that both the TPO and express representations made to the Defendant by the Council when investigating the possible commission of the offence had stated, in terms, that the penalty for a contravention of the TPO was $20,000.

7. It may fairly be assumed (as indeed has been asserted) that in the present case, both the Defendant and his Solicitor have proceeded on the assumption that the maximum penalty is $20,000, particularly since this is the same assumption that was recently made by the parties and accepted by Lloyd J in determining a similar charge brought by the Council against Gumland Property Holdings Pty Ltd in proceedings 50054 of 2000. In those proceedings, the defence solicitor was the Solicitor who acts for the present Defendant and the prosecution solicitor was another solicitor from the same firm that acts for the Prosecutor in the present case.

8. Accordingly, the Defence Solicitor has foreshadowed applications for dismissal of the proceedings for abuse of process or denial of justice and/or for adjournment to afford the Defendant the opportunity to reconsider his position (including the possibility of a change of plea) in the event of the Court accepting the Prosecutor’s submission that the maximum penalty in the present case is $110,000. (Originally, in the mistaken belief that the amendment made to s 126(1) by Act No 72 of 1999 was relevantly in force, the Prosecutor had submitted that the maximum penalty, was $1.1 million.)

9. It was in these uncertain circumstances that I briefly adjourned the proceedings to enable the Prosecutor’s Solicitor to obtain further instructions.

10. Upon resumption, she has submitted that in the present case, the Council will not contend for the imposition of a penalty exceeding $20,000. However, as an officer of the Court, she does not feel able to withdraw her earlier submission that the prescribed maximum penalty for the offence charged is $110,000. Nor does she have instructions to withdraw her submission.

11. For self-evidently sound reasons, the Defence Solicitor does not accept that the Prosecutor’s revised approach provides a solution to the problem raised in the case, either in the interests of fairness to the Defendant or in the interests of this Court dispensing criminal justice.

12. Accordingly, it became necessary for me to adjudicate upon the competing arguments concerning the effect of the EP&A Act, s 126(1) which is in the following terms:

A person guilty of an offence against this Act shall, for every such offence, be liable to the penalty expressly imposed and if no penalty is so imposed to a penalty not exceeding 1,000 penalty units and to a further daily penalty not exceeding 100 penalty units.

13. The crucial question in the proper interpretation of this subsection is what is meant by the expression “the penalty expressly imposed”. Does it mean, as the Prosecution submission suggests, expressly imposed “by the Act” which creates the offence or does the expression have the wider meaning of “the penalty expressly imposed” by any appropriate means or source of authority, such as is found in the express terms of the TPO which declares the penalty for contravention to be $20,000?

14. In my judgment, it is legitimate to regard the offence involving a contravention of the TPO as something that was “forbidden to be done” by virtue of “a direction given by a council” within the meaning of those expressions appearing in the EP&A Act, s 125(1), which is the principal offence creating provision contained in the EP&A Act.

15. As I pointed out, in Hornsby Shire Council v Winsloe (1998) 101LGERA 117 at 135, the offence created by s 125(1) of the EP&A Act involves “multiple combinations of elements where each different combination of elements constitutes a distinct offence”.

16. For example, and relevantly to the present case, one combination is (i) the doing of a thing; (ii) which is forbidden to be done; (iii) where the forbidden act is the subject of a direction that has been given by a council so authorised by or under the EP&A Act.

17. Although in Winsloe I held that a prohibition contained in a tree preservation order was not relevantly a “prohibition under the EP&A Act” but was “a prohibition under the tree preservation order made under the local environmental plan made under the Act” (see at p 134), I did not consider whether the prohibition was relevantly contained in “a direction given by a council authorised to so direct”, because the charge was not framed in language requiring that consideration.

18. However, that such an offence might be so analysed is shown by the Court of Criminal Appeal’s decision in Rao v Canterbury City Council, ((2000) NSWCCA 471) where Austin J was prepared to hold that a condition of a development consent granted by a council and designed to preserve existing trees, was relevantly a “direction given by a Council authorised to do so” within the meaning of the EP&A Act, s 125(1). By parity of reasoning, the prohibitions contained in the TPO may likewise be regarded as “directions given by a council” within the meaning of the EP&A Act, s 125(1)—see in addition to the terms of the TPO s 26(1)(e) and s 31 of the EP&A Act which sections, combined with cl 42 of the Ku-Ring-Gai Planning Scheme Ordinance, operate to authorise the following:
(i.) the making of the TPO; and
(ii.) the Council giving the directions containing the relevant prohibitions contained therein.

19. To so understand the TPO (and its relevant prohibitions) provides a basis from which it appears to be but a logical and reasonable extension of reasoning to conclude, as I do, that where the express prohibitions contained in the TPO which expressly declare the penalty for contravention, (as is the case with the TPO) that that declaration relevantly “expressly imposes the penalty for such offence” within the meaning of s 126(1).

20. I appreciate that the competing interpretation advanced by the Prosecution offers a respectable and cogent interpretation. However, I think the former interpretation is to be preferred in the present case involving as it does, an express declaration of the penalty provided for contravention of the TPO that is contained in the TPO.

21. I know of no decision where the question has previously arisen and been determined following detailed argument. As I have indicated earlier, in Gumland, Lloyd J merely accepted the parties’ joint submission that the maximum penalty was $20,000.

22. In Cooper v Coffs Harbour City Council (1997) 97LGERA 125, the Court of Criminal Appeal’s judgment notes at 142 that the maximum penalty is that prescribed by the EP&A Act, s 126(1). However, as I pointed out in Winsloe, it is not entirely clear what precisely was the forbidden act in that case—more probably, it involved a contravention of a condition of development consent rather than the contravention of a tree preservation order.

23. Moreover, it does not appear that in that case the relevant tree preservation order contained any express declaration of the penalty for its contravention. In any event, this was not a matter that fell for consideration by the Court. Accordingly, the observation in that case is not a binding interpretation of the EP&A Act, s 126(1), applicable to a case such as the present where the TPO itself expressly declares the penalty for contravention of the TPO.

24. I would emphasise this last-mentioned point in properly limiting the effect of my holding. It is not to the effect that where an offence involves the contravention in the present case of a tree preservation order, the maximum penalty is that declared in that order, rather than the general maximum penalty prescribed by the EP&A Act, s 126(1). I am aware that there are many decided cases in this Court involving contraventions of tree preservation orders, which have proceeded on the basis that the general maximum penalty prescribed by s 126(1) applies. The true effect of my present decision is simply that where the offence involves a contravention of a tree preservation order and that order declares the penalty for contravention, that declaration relevantly imposes the prescribed penalty (meaning the prescribed “maximum” penalty cf the Crimes (Sentencing Procedure) Act 1999 s 18). If a council wishes to avoid this consequence and have the general maximum penalty provided by s 126(1) made applicable, it should omit from its tree preservation orders any declaration of a different and lesser penalty and instead draw attention to the effect of s 126 (1), prescribing the general maximum penalty of 10,000 penalty units that currently applies.

25. The Prosecution Solicitor submitted that the Court should ignore the express declaration of penalty for contravention of the TPO because there was no relevant power vested in the Council to make such declaration in the TPO.

26. This submission appears to involve an unwitting attack on the validity of the TPO but in any event, in my opinion, the submission should be rejected. I have earlier referred to the sources of power for the making of the TPO and in my opinion, those sources support the inclusion in the TPO of the express declaration of the penalty of $20,000 for contravention.

27. Accordingly, and for all of the aforesaid reasons, I hold that the relevant maximum penalty prescribed by the EP&A Act, s 126(1) for the offence, the subject of the present charge is $20,000, being the amount “expressly imposed” within the meaning of that subsection, by virtue of the express declaration of the penalty contained in the TPO.