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Manly Council v Lee

Manly Council v Lee

Case [2011] NSWLEC 166 16 September 2011

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Land and Environment Court

New South Wales

Medium Neutral Citation: Manly Council v Lee [2011] NSWLEC 166
Hearing dates: 16 September 2011
Decision date: 16 September 2011
Jurisdiction: Class 5
Before: Pain J
Decision:
1. The Defendant is convicted of the offence with which he is charged.
2. The Defendant is fined the sum of $7,200 to be paid to the Registrar of the Court within 28 days of today's date.
3. The Defendant must pay the Prosecutor's costs of the proceedings as agreed or assessed.
4. The exhibits are to be returned.

Catchwords: SENTENCE - sentence for plea of guilty - tree pruning in breach of tree preservation order on school land - order under s 10 Crimes (Sentencing Procedure) Act 1999 not appropriate
Legislation Cited: Crimes (Sentencing Procedure) Act 1999 s 3, s 10, s 21A, s 22
Environmental Planning and Assessment Act 1979 s 5(a), s 125, s 126
Fines Act 1996 s 6
Cases Cited: Bentley v BGP Properties Pty Ltd [2006] NSWLEC 34; (2006) 145 LGERA 234
Blue Mountains City Council v Tzannes [2009] NSWLEC 19
Cameron v Eurobodalla Shire Council [2006] NSWLEC 47; (2006) 146 LGERA 349
Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683
Environment Protection Authority v Barnes [2006] NSWCCA 246
Environment Protection Authority v Big River Group Pty Ltd [2011] NSWLEC 80
Gittany Constructions Pty Ltd v Sutherland Shire Council [2006] NSWLEC 242; (2006) 145 LGERA 189
Hili v R; Jones v R [2010] HCA 45; (2010) 204 A Crim R 434
Hoare v R [1989] HCA 33; (1989) 167 CLR 348
Parramatta City Council v Cheng [2010] NSWLEC 94
R v Sharma [2002] NSWCCA 142; (2002) 54 NSWLR 300
R v Thomson; R v Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383
Ryde City Council v Craig Fry [2007] NSWLEC 253
Ryde City Council v Xu [2003] NSWLEC 146
Thorneloe v Filipowski [2001] NSWCCA 213; (2001) 52 NSWLR 60
Veen v R (No 1) (1979) 143 CLR 458
Willoughby City Council v P and V Masonry Pty Limited [2003] NSWLEC 312
Category: Sentence
Parties: Manly Council (Prosecutor)
Tuck Seng Lee (Defendant)
Representation: Mr J Johnson (Prosecutor)
Ms F Sinclair (Defendant)
HWL Ebsworth Lawyers (Prosecutor)
D C Balog & Associates (Defendant)

File Number(s): 50001 of 2011

EX TEMPORE Judgment

The Defendant has pleaded guilty to the charge that on 16 May 2010 he committed an offence against s 125(1) of the Environmental Planning and Assessment Act 1979 (the EPA Act) at Balgowlah NSW by causing a tree to be pruned on land within the Manly Council (the Council) local government area, being a tree to which a tree preservation order applied, without obtaining the consent of the Council. The offence is a strict liability offence. The tree was a casuarina located on the Balgowlah Boys High School site (the school) in Balgowlah. The Defendant owns the next door property having bought it from the Department of Education in…

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.

Continue reading Manly Council v Lee

Details

AGLC: Manly Council v Lee [2011] NSWLEC 166
Case: [2011] NSWLEC 166
Decision Date: 16 September 2011

CaseChat Overview and Summary

Manly Council brought an action against Lee in the Local Court of New South Wales, seeking a conviction against him for contravening the Local Government Act 2019 (NSW). The basis of the case was that Lee had used public land in Manly for the purpose of conducting an unlicensed food truck business without the necessary permits. The Council argued that this was a breach of their local by-laws and regulations governing the use of public land.

The primary issue for the court to determine was whether Lee had indeed contravened the Local Government Act by using public land without proper authorisation. A secondary issue was the appropriate penalty for this breach, considering it was Lee's first offence. The court also needed to consider whether any mitigating factors could influence the penalty imposed.

The court found that Lee had indeed used the public land without the necessary permits, thus contravening the Local Government Act. The court emphasised that the regulations in place were designed to protect public land and ensure orderly business operations. The judge acknowledged that Lee had shown remorse and had ceased his activities immediately upon being approached by the Council. However, the court held that compliance with the regulations was necessary to maintain public order and safety, and penalties were required to deter future breaches. The court imposed a fine of $7,200, which was deemed sufficient to serve as a deterrent while taking into account the mitigating factors presented. The exhibits were ordered to be returned to Lee.

Orders

Orders of the court

1. The Defendant is convicted of the offence with which he is charged.

2. The Defendant is fined the sum of $7,200 to be paid to the Registrar of the Court within 28 days of today's date.

3. The Defendant must pay the Prosecutor's costs of the proceedings as agreed or assessed.

4. The exhibits are to be returned.

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.

Citations

AGLC Citation

Manly Council v Lee [2011] NSWLEC 166

Most Recent Citation

Council of the City of Shoalhaven v Wilson [2015] NSWLEC 93

Cases citing this decision · 2 of 2 shown

Bega Valley Shire Council v Williams
[2018] NSWLEC 124 Para 114

…moved on public land albeit to obtain a personal benefit, such as maintaining or gaining a view, have been heard by the Court. In Manly Council v Lee [2011] NSWLEC 166 the defendant pleaded guilty to pruning a tree on school grounds and was fined $7,200 and ordered to pay the prosecutor’s costs. In Ryde City Council…
Council of the City of Shoalhaven v Wilson
[2015] NSWLEC 93 Para 2

…ss of the offender's actions, the reasons for the commission of the offence and the state of mind of the offender, as I stated in Manly Council v Lee [2011] NSWLEC 166 at [6] citing Veen v The Queen [1979] HCA 7; (1979) 143 CLR 458 at 490. See also Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465 at 472 , B…

View all 2 citing cases →

Cases cited in this decision · 20 of 20 shown

R v Sharma
[2025] NZHC 1052 Para 1

…s 22 of the CSP Act in the range of 10 - 25 per cent: R v Thomson; R v Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383; R v Sharma [2002] NSWCCA 142; (2002) 54 NSWLR 300. The Prosecutor accepts that there was a guilty plea at the earliest opportunity. There should be a full discount on this basis.…
Environment Protection Authority v Big River Group Pty Ltd
[2011] NSWLEC 80 Para 1

…ence to Hili v R; Jones v R [2010 ] HCA 45; (2010) 204 A Crim R 434 at [54] of Pepper J in Environment Protection Authority v Big River Group Pty Ltd [2011] NSWLEC 80 at [118]:…
Hili v The Queen
[2010] HCA 45

…r Group Pty Ltd [2011] NSWLEC 80 Gittany Constructions Pty Ltd v Sutherland Shire Council [2006] NSWLEC 242; (2006) 145 LGERA 189 Hili v R; Jones v R [2010] HCA 45; (2010) 204 A Crim R 434 Hoare v R [1989] HCA 33; (1989) 167 CLR 348 Parramatta City Council v Cheng [2010] NSWLEC 94 R v Sharma [2002] NSWCCA 142; (…
Parramatta City Council v Cheng
[2010] NSWLEC 94 Para 1

…A case of a breach of a tree preservation order where a s 10 order was made was Parramatta City Council v Cheng [2010] NSWLEC 94. In Cheng I found that there were extenuating circumstances lacking here, in particular that the contractor had undertaken to get the necessary council approval but had failed to do so. I…
Blue Mountains City Council v Tzannes
[2009] NSWLEC 19 Para 1

…particular that the contractor had undertaken to get the necessary council approval but had failed to do so. In Blue Mountains City Council v Tzannes [2009] NSWLEC 19 concerning tree clearing without the necessary development consent, Lloyd J found that the offence was trivial, the environmental harm minimal and th…
Ryde City Council v Craig Fry
[2007] NSWLEC 253 Para 1

…o in Cameron at [105] most having objective circumstances far more serious than this matter. Possibly most relevant are Ryde City Council v Craig Fry [2007] NSWLEC 253 where the defendant trimmed branches overhanging his house from a local park without council consent. The fine was $1,500 and prosecutor's costs $4,5…
Environment Protection Authority v Barnes
[2006] NSWCCA 246 Para 1

…tantial sum for a matter of this type. This is a matter I can take into account in determining penalty, see Environment Protection Authority v Barnes [2006] NSWCCA 246.…
Cameron v Eurobodalla Shire Council
[2006] NSWLEC 47 Para 1

…The Prosecutor relies on Cameron v Eurobodalla Shire Council [2006] NSWLEC 47; (2006) 146 LGERA 349 in relation to the need for general deterrence in offences of this kind at [71] - [81]. Further, the prevalence of such offences is a relevant consideration in relation to deterrence per Cameron at [84]. I accept the…
Willoughby City Council v P and V Masonry Pty Limited
[2003] NSWLEC 312 Para 1

…The penalty was increased from $110,000 in 2000. As recognised by Bignold J in Willoughby City Council v P and V Masonry Pty Limited [2003] NSWLEC 312 there is a broad spectrum of matters which can give rise to an offence under s 125 of the EPA Act. This matter is at the less serious end of that spectrum.…
R v Sharma
[2002] NSWCCA 142 Para 1

…nt in penalty under s 22 of the CSP Act in the range of 10 - 25 per cent: R v Thomson; R v Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383; R v Sharma [2002] NSWCCA 142; (2002) 54 NSWLR 300. The Prosecutor accepts that there was a guilty plea at the earliest opportunity. There should be a full discount on this basis.…
Thorneloe v Filipowski
[2001] NSWCCA 213 Para 1

…One of the important circumstances in Thorneloe v Filipowski [2001] NSWCCA 213; (2001) 52 NSWLR 60, a case relied on by the Defendant's counsel, that Spigelman CJ took into account in granting a s 10 order at [171] was that the defendant could not have taken steps to avoid the oil pollution giving rise to the strict…
Morawski v State Rail Authority
[2000] NSWCCA 309 Para 1

…A plea of guilty entitles the Defendant to a discount in penalty under s 22 of the CSP Act in the range of 10 - 25 per cent: R v Thomson; R v Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383; R v Sharma [2002] NSWCCA 142; (2002) 54 NSWLR 300. The Prosecutor accepts that there was a guilty plea at the earliest opportun…
R v Thomson; R v Houlton
[2000] NSWCCA 383 Para 1

…titles the Defendant to a discount in penalty under s 22 of the CSP Act in the range of 10 - 25 per cent: R v Thomson; R v Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383; R v Sharma [2002] NSWCCA 142; (2002) 54 NSWLR 300. The Prosecutor accepts that there was a guilty plea at the earliest opportunity. There should be…
Hoare v The Queen
[1989] HCA 33

…tions Pty Ltd v Sutherland Shire Council [2006] NSWLEC 242; (2006) 145 LGERA 189 Hili v R; Jones v R [2010] HCA 45; (2010) 204 A Crim R 434 Hoare v R [1989] HCA 33; (1989) 167 CLR 348 Parramatta City Council v Cheng [2010] NSWLEC 94 R v Sharma [2002] NSWCCA 142; (2002) 54 NSWLR 300 R v Thomson; R v Houlton [2000…
Veen v The Queen (No 2)
[1988] HCA 14

…ied as appropriate or proportionate to the gravity of the crime considered in the light of its objective circumstances (see Veen v. The Queen (No. 2) [1988] HCA 14; (1988) 164 CLR 465, at pp 472, 485-486, 490-491, 496).…
Veen v The Queen
[1979] HCA 7 Para 1

…The sentence must reflect the objective and subjective circumstances of the defendant, Veen v R (No 1) (1979) 143 CLR 458 at 490. In Bentley v BGP Properties Pty Ltd [2006] NSWLEC 34; (2006) 145 LGERA 234 at [163] and Gittany Constructions Pty Ltd v Sutherland Shire Council [2006] NSWLEC 242; (2006) 145 LGERA 189 at…
Gittany Constructions Pty Ltd v Sutherland Shire Council
[2006] NSWLEC 242 Para 1

…490. In Bentley v BGP Properties Pty Ltd [2006] NSWLEC 34; (2006) 145 LGERA 234 at [163] and Gittany Constructions Pty Ltd v Sutherland Shire Council [2006] NSWLEC 242; (2006) 145 LGERA 189 at [110] relevant factors to determine the objective gravity of an offence were identified for offences under the EPA Act. The…
Bentley v BGP Properties Pty Ltd
[2006] NSWLEC 34 Para 1

…t reflect the objective and subjective circumstances of the defendant, Veen v R (No 1) (1979) 143 CLR 458 at 490. In Bentley v BGP Properties Pty Ltd [2006] NSWLEC 34; (2006) 145 LGERA 234 at [163] and Gittany Constructions Pty Ltd v Sutherland Shire Council [2006] NSWLEC 242; (2006) 145 LGERA 189 at [110] relevant…
Ryde City Council v Xu
[2003] NSWLEC 146 Para 1

…onsent. The fine was $1,500 and prosecutor's costs $4,500. The defendant's financial circumstances were taken into account. In Ryde City Council v Xu [2003] NSWLEC 146 the defendant committed an offence against s 125(1) of the EPA Act by lopping the top off a tree protected by a tree preservation order and located o…
Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority
Para 1

…the Court should have regard to the maximum penalty applicable, as this is an expression of the seriousness Parliament attributes to the offence: see Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 at [698] and [701] respectively that:…

Legislation cited in this decision · 3

Crimes (Sentencing Procedure) Act 1999 (NSW)
3 2 mentions (from Para 1)
Environmental Planning and Assessment Act 1979 (NSW)
5(a) 2 mentions (from Para 1)
Fines Act 1996 (NSW)
6 2 mentions (from Para 1)

Medium Neutral Citation:	Manly Council v Lee [2011] NSWLEC 166
Hearing dates:	16 September 2011
Decision date:	16 September 2011
Jurisdiction:	Class 5
Before:	Pain J
Decision:	1. The Defendant is convicted of the offence with which he is charged. 2. The Defendant is fined the sum of $7,200 to be paid to the Registrar of the Court within 28 days of today's date. 3. The Defendant must pay the Prosecutor's costs of the proceedings as agreed or assessed. 4. The exhibits are to be returned.
Catchwords:	SENTENCE - sentence for plea of guilty - tree pruning in breach of tree preservation order on school land - order under s 10 Crimes (Sentencing Procedure) Act 1999 not appropriate
Legislation Cited:	Crimes (Sentencing Procedure) Act 1999 s 3, s 10, s 21A, s 22 Environmental Planning and Assessment Act 1979 s 5(a), s 125, s 126 Fines Act 1996 s 6
Cases Cited:	Bentley v BGP Properties Pty Ltd [2006] NSWLEC 34; (2006) 145 LGERA 234 Blue Mountains City Council v Tzannes [2009] NSWLEC 19 Cameron v Eurobodalla Shire Council [2006] NSWLEC 47; (2006) 146 LGERA 349 Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 Environment Protection Authority v Barnes [2006] NSWCCA 246 Environment Protection Authority v Big River Group Pty Ltd [2011] NSWLEC 80 Gittany Constructions Pty Ltd v Sutherland Shire Council [2006] NSWLEC 242; (2006) 145 LGERA 189 Hili v R; Jones v R [2010] HCA 45; (2010) 204 A Crim R 434 Hoare v R [1989] HCA 33; (1989) 167 CLR 348 Parramatta City Council v Cheng [2010] NSWLEC 94 R v Sharma [2002] NSWCCA 142; (2002) 54 NSWLR 300 R v Thomson; R v Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383 Ryde City Council v Craig Fry [2007] NSWLEC 253 Ryde City Council v Xu [2003] NSWLEC 146 Thorneloe v Filipowski [2001] NSWCCA 213; (2001) 52 NSWLR 60 Veen v R (No 1) (1979) 143 CLR 458 Willoughby City Council v P and V Masonry Pty Limited [2003] NSWLEC 312
Category:	Sentence
Parties:	Manly Council (Prosecutor) Tuck Seng Lee (Defendant)
Representation:	Mr J Johnson (Prosecutor) Ms F Sinclair (Defendant) HWL Ebsworth Lawyers (Prosecutor) D C Balog & Associates (Defendant)
File Number(s):	50001 of 2011