Ku-Ring-Gai Municipal Council v Gumland Property Holdings Pty Limited

[2001] NSWLEC 39

Land and Environment Court

of New South Wales

CITATION:	Ku-Ring-Gai Municipal Council v Gumland Property Holdings Pty Limited [2001] NSWLEC 39
PARTIES:	PROSECUTOR: Ku-Ring-Gai Municipal Council DEFENDANT: Gumland Property Holdings Pty limited ACN 067 278 782
FILE NUMBER(S):	50054 of 2000
CORAM:	Lloyd J
KEY ISSUES:	Environmental Offences :- breach of tree preservation order - guilty plea entered - mitigation - penalty
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979 s 125, s 126 Ku-Ring-Gai Planning Scheme Ordinance cl 42 Rural Fires Act s 66
CASES CITED:
DATES OF HEARING:	13/12/2000
EX TEMPORE JUDGMENT DATE :	12/13/2000
LEGAL REPRESENTATIVES:	PROSECUTOR: Mr S M Berveling (Solicitor) SOLICITORS: Abbott Tout DEFENDANT: Mr T T To (Solicitor) with Mr D J Baird (Solicitor) SOLICITORS: PricewaterhouseCoopers Legal

JUDGMENT:

4

Ku-Ring-Gai Municipal Council

Prosecutor

v

Gumland Property Holdings Pty Limited

ACN 067 278 782

Defendant

EXTEMPORE JUDGMENT

HIS HONOUR:

1. The defendant pleads guilty to a charge that on or about 18 and 19 March 2000 at lot 2 in deposited plan 870397, generally known as No. 12 Chase Avenue Roseville, it did a thing forbidden to be done by the Environmental Planning and Assessment Act 1979 (“the EP&A Act”); namely, the cutting down of trees specified in a Tree Preservation Order made pursuant to clause 42 of the Ku-Ring-Gai Planning Scheme Ordinance without the consent of the prosecutor contrary to section 125 of that Act.

2. The facts which I shall now briefly describe are derived both from a joint statement of facts and from affidavit and oral evidence given this morning. It is agreed that the defendant is and was at all relevant times the owner of the subject property, which comprises an area of approximately 1.4 hectares. The subject property is within the area of the prosecutor and is subject to the provisions of the prosecutor’s Tree Preservation Order. On 28 January 2000 Mrs Dorothy Pierce, a resident of No. 6 Attunga Street Roseville, a property adjacent to the subject property, wrote to the defendant requesting that steps be taken to clear a corridor on the subject land to ensure that a cleared firebreak is maintained between that land and her home. According to her letter the density of the bush presented a serious fire hazard.

3. On 21 February 2000 the prosecutor served on the defendant a notice under section 66 of the Rural Fires Act of bushfire hazard reduction work to be undertaken on its land. That notice required the following work to be carried out: “slash lantana and privet on land adjoining properties in Attunga Road to reduce fire hazard.”

4. Mr Vincent Pang is a director of the defendant. In response to the notice from the council he asked one of his employees to arrange for the firebreak to be cleared. The employee then contacted Mr John Wang, who was not previously known to the defendant, of Able Maintenance Services on or about 16 March 2000.

5. On 18 March 2000 Mr Pang attended the site to show it to Mr Wang. According to the undisputed evidence of Mr Pang he said: “The next door neighbour wants a firebreak. She has got council to issue this notice to us.” At no stage did he instruct Mr Wang to carry out any clearing other than in accordance with the council’s notice. He did not give instructions to clear trees on the site. He says that he does not know what lantana or privet is and could not have told Mr Wang what exactly had to be cleared. On about 18 and 19 March the defendant’s contractor, Mr Wang, cut down trees which were subject to the prosecutor’s Tree Preservation Order. The prosecutor says that some sixty nine trees were cut down. Those trees were subsequently photographed and noted on a plan and listed in a schedule prepared by Ms Wendy Miller, the prosecutor’s Tree Preservation Officer.

6. The defendant disputes the number of trees that were cut down. According to the defendant’s expert who visited the site some seven and a half months later some fifty trees were cut down. I must say that I prefer the evidence of Ms Miller on this issue. The method by which the trees were counted, photographed and mapped suggests that her estimate is more likely to be accurate.

7. The Tree Preservation Order contains a number of exemptions. Amongst those exemptions are all trees within three metres of an existing dwelling or proposed dwelling with an approved building permit. On 14 March 1997 the prosecutor issued a building permit for the erection of a building and the construction of a driveway on the subject land. According to the defendant’s expert seven trees which had been removed fall within the area of the proposed driveway and another seven trees that had been removed were within three to five metres of the proposed driveway.

8. I am prepared to give the defendant the benefit of the doubt and conclude that some fourteen trees were therefore exempted from the application of the Tree Preservation Order. This means that some fifty five trees were unlawfully removed.

9. The defendant immediately acknowledged the commission of the offence; first, in a letter to the prosecutor on 3 April; and again in a further letter on 24 July. Following the initiation of this prosecution the defendant on 23 October wrote to the prosecutor’s solicitors advising them that it was intended to plead guilty and that the defendant also intended to offer a plan of revegetation of the subject site, which plan was then currently in preparation. The parties have since agreed on the revegetation plan and I note that this will self-evidently involve significant expenditure.

10. On the first return date of the summons, 27 October this year, the defendant immediately entered a plea of guilty. One of the things that must be taken into consideration is the timing of any plea of guilty and I accept that at all relevant times and at the earliest opportunity a plea of guilty was indicated. I also take into account the expression of contrition which a plea of guilty entails. As was said by Mr Pang, he relied upon the expertise of his contractor, Mr Wang of Able Maintenance Services to implement the notice that had been served under the Rural Fires Act and did not then take any personal interest in the implementation of that notice.

11. The maximum penalty for an offence under section 126 of the EP&A Act is the penalty expressly imposed and if no penalty is so imposed a penalty not exceeding 10,000 penalty units. In the present case the prosecutor accepts that a maximum penalty is expressly imposed in the terms of the Tree Preservation Order itself. That maximum penalty is $20,000. The maximum penalty of course applies only to the most serious category of offence. In my opinion having regard to the number of trees removed, the defendant’s acknowledgment of its plea of guilty, the early entering of that plea and the obligations it has undertaken in agreeing to remediate the land the penalty should in this case be discounted by some 30 percent.

12. The penalty that would, I think, normally be imposed having regard to the seriousness of the offence and the maximum penalty, be in the vicinity of $11,000. Applying a discount of 30 percent reduces that penalty to a sum of $8,000. The defendant has agreed to pay the prosecutor’s costs in the sum of $7,800.

13. I therefore make the following formal orders:

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

(2). The defendant must pay a penalty of $8,000.

(3). The defendant must plant new trees and vegetation by May 2001 on lot 2 deposited plan 870397 being the land situated at No. 12 Chase Avenue Roseville in accordance with the Landscape Revegetation Plan, drawing number L01/1-R3510 dated 6 December 2000 by Michael Sui, Landscape Architects Pty Limited and which is Exhibit 1 in these proceedings; and must maintain such new trees and vegetation to mature growth.

(4). The defendant must pay the prosecutor’s costs in the sum of $7,800.

(5). The exhibits, other than Exhibit 1 and the plant species list initialled by both parties, may be returned.

(6). I note that the parties have agreed to an amendment to Item 10 on the Landscape Revegetation Plan, Exhibit 1, which shall read as follows.

Planting to also include 50 shrubs and ground cover tube stocks chosen from the species list initialled by both parties.

14. HIS HONOUR: Is there anything else?

15. BERVELING: Your Honour, the dispute of the maintenance period?

16. HIS HONOUR: I have chosen to leave the maintenance period at thirty-six months as noted on Exhibit 1.