Manly Council v Lee

[2011] NSWLEC 166

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

1. 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 2007 (the land).

Statement of Agreed Facts

1. The parties relied on a Statement of Agreed Facts (SOAF) as follows.

Offence Charged

1. The prosecutor seeks an order that the defendant appear before the court to answer to the charge that on 16 May 2010 at Balgowlah in the State of New South Wales he committed an offence against s125 (1) of the Environmental Planning and Assessment Act 1979 (the Act) in that he caused a tree to be pruned on land within the Manly Council Local Government Area, being a tree to which a tree preservation order made by the prosecutor applied, without obtaining the consent of the prosecutor. The defendant entered a plea of guilty to the offence charged at the earliest opportunity, being the first directions hearing on 20 May 2011.

The Land and the Tree

2. The defendant is the owner of 10 Coral St Balgowlah ("the Land") which is adjacent to Balgowlah Boys High School. The tree the subject of the pruning ("the Tree") is situated within the grounds of the High School and the trunk base is located near a rock retaining wall which supports the boundary paling fence which separates the High School property from the Land and is approximately 1.8 metres from the edge of the house of the defendant.

The Environmental Planning Instrument

3. The environmental planning instrument which applied to the subject property was the Manly Local Environmental Plan 1988 (the Manly LEP) which adopts clause 8 of the Environmental Planning and Assessment Model Provisions 1980 which authorise the making of Tree Preservation Order. By way of resolution of 2 July 2001 the prosecutor made the Manly Tree Preservation Order 2001. The Manly Tree Preservation Order 2001 states that the pruning of trees in excess of 5 metres in height requires the consent of Council but permits an exception to the requirement to obtain consent in circumstances where no more than 10% of the tree's foliage is proposed to be pruned.

Circumstances leading to the Offence

4. The defendant caused a tree to be pruned on 16 May 2010 within the meaning of the Tree Preservation Order through a person acting on instructions in his presence. The defendant caused the tree to be pruned because branches and pine needles from the tree gathered on his roof and in the gutters and blocked the drain pipes.

5. At 11.40 am on 16 May 2010 Council officers attended the Land in response to a telephone call. The Council officers observed a tree which had been freshly pruned which was located on the property of Balgowlah Boys High School.

The Tree

6. The Tree is a semi mature specimen of casuarina cunninghamiana or Sheoak with a trunk diameter of 380 mm at 1.4m above ground level. The Tree had already been pruned in about 2007 by contractors acting on behalf of the defendant in order that a builder engaged by the defendant could construct a house on the Land pursuant to development approval obtained from the prosecutor Council. The Council has no record of any consent granted by it to carry out this lopping. The Council granted to the defendant an occupation certificate and took no action regarding this pruning.

7. The tree is now in good health, but it is now in poor structural condition.

8. Annexed to this statement is a Joint Expert's Report and the parties agree the facts which the experts have agreed. The expert witnesses suggest that the tree should be removed and a replacement tree planted in its place. The defendant agrees to pay for the cost of a suitable replacement tree in consultation with the principal of Balgowlah Boys High school who consents to the replacement of the tree.

9. The defendant agrees to pay the costs of the prosecutor as agreed or assessed.

Prosecutor's evidence

1. Apart from the SOAF the Prosecutor tendered bundles of photographs showing the tree before, during and after the pruning in May 2010. A second joint experts' report was prepared today during the hearing and tendered (exhibit G) relating to the percentage of foliage of the tree removed during earlier pruning undertaken when the Defendant's house was built (construction pruning) and as a result of the pruning giving rise to the offence.

1. The Defendant affirmed an affidavit filed 7 July 2011 setting out how he and his family came to purchase the land, how he had problems with water leaks in his house resulting from pine needles accumulating in the gutters and on the roof, how he came to organise roof clearing and the tree pruning by a local business which had to be done in a hurry due to his departure overseas for work for four years shortly afterwards, and the events of the day of the offence. He contacted two businesses asking someone to come and clear the roof of pine needles, which said they would not do the work as it was dangerous and a waste of time if the tree was not trimmed. He rang a local tradesman and employed him on a cash basis on a Saturday to clean the roof of pine needles and to trim the tree so that no branches overhung his house and pine needles and branches would not drop onto it. He was present the whole time and he estimates the work took about 15 minutes. There was no contract or invoice rendered for the work. The branches pruned were taken away in one trailer load. He co-operated with the Council ranger when he arrived, which was after the trimming had occurred. He expresses his contrition and remorse and apologises for the offence. He has offered to plant a replacement tree on the school property and pay the Prosecutor's costs.

Crimes (Sentencing Procedure) Act 1999

1. The objects of sentencing are identified in s 3A of the Crimes (Sentencing Procedure) Act 1999 (the CSP Act) which provides:

The purposes for which a court may impose a sentence on an offender are as follows:

(a) to ensure that the offender is adequately punished for the offence,

(b) to prevent crime by deterring the offender and other persons from committing similar offences,

(c) to protect the community from the offender,

(d) to promote the rehabilitation of the offender,

(e) to make the offender accountable for his or her actions,

(f) to denounce the conduct of the offender,

(g) to recognise the harm done to the victim of the crime and the community.

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 [110] relevant factors to determine the objective gravity of an offence were identified for offences under the EPA Act. The factors include the maximum penalty, the objective harmfulness of the defendant's actions, the reasons for the commission of the offence and the state of mind of the offender.

1. The statutory scheme in which the offence provision appears is also important. The EPA Act's objectives include the promotion and orderly and economic use and development of land, s 5(a)(ii), as well as protection of the environment, s 5(a)(vi). Tree preservation orders are directed to the preservation of vegetation, in this case in urban environments.

Objective seriousness

1. The maximum penalty is $1.1 million. In setting a penalty 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:

The task of a court is to assess the relative seriousness of the offender's particular offence in relation to a worst case for which the maximum penalty is provided...

..the more serious the lasting environmental harm involved the more serious the offence and, ordinarily, the higher the penalty.

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.

Environmental harm

1. There is a joint report of the arborists Mr Ford and Mr Draper filed 26 August 2011 (exhibit A) in which they agree that the tree is in such a state after the pruning the subject of this charge that it no longer contributes to the local amenity of the area and must be removed. In a second joint report they agree that 25 to 30 per cent of the foliage was removed during the construction phase (not the subject of the charge) and 40 to 50 per cent of what remained was removed during the offence. The arborists agree the tree is in good health but is in structurally poor condition.

1. The Prosecutor submitted and I accept that the level of environmental harm is not minor in the immediate locality of the tree. The tree before pruning in this offence contributed generally to the streetscape in the immediate local area. This is clear from the photographs tendered showing the tree before and after the offence (exhibits C and E) and plates attached to the report of Mr Ford tendered by the Prosecutor (exhibit F). The crown of the tree is shown as intact in photographs taken from neighbouring properties at the time of the offence (exhibit D). This was essentially removed by the pruning undertaken by the contractor in the presence of the Defendant.

1. The tree is located on Department of Education land and is a buffer between the school site and its neighbours, including the land. The work carried out under the instructions of the Defendant left the tree as something of an eyesore being a bare stump at the top. It no longer contributes to the amenity of the area as it used to.

1. The Defendant's counsel submitted that the tree had already been trimmed substantially during the construction of the Defendant's house and was misshapen, meaning the limbs on one side had been removed. This is correct and clear from the photographs but that trimming does not appear to have been of the crown of the tree to which the pruning the subject of this offence was largely directed, hence the loss of amenity arising from this offence. There is more than negligible environmental harm.

Reasons for the offence

1. The Defendant's evidence is that he was trying to stop the nuisance of pine needles from the tree dropping onto his home, particularly the gutters. He was not aware that development consent was needed for the pruning he wished to undertake. As the Prosecutor submitted based on his affidavit evidence he was advised in May 2009 of the need to have regular maintenance to reduce the impact of pine needles collecting in the gutters and on the roof of his house. There was no particular urgency apart from his imminent departure overseas. That he was under pressure to clean up his property before leaving for overseas is not a satisfactory explanation for his behaviour especially as he was aware of the need for regular maintenance for a year before the offence.

Defendant's state of mind

1. The Defendant states in his affidavit that he had to arrange for the work to be done quickly as he was leaving overseas shortly afterwards for what he then understood would be four years. His counsel submitted that he was under pressure and acted rashly.

1. I accept to a limited extent the Prosecutor's submission that the Defendant knowingly engaged a contractor to seriously prune a 10m tall healthy tree to the extent the tree must now be removed. I accept the Defendant's evidence that he did not intend to inflict the environmental harm that resulted from the pruning.

1. The tree was located on Department of Education property, the site of the school. No permission from the school was sought before the pruning was undertaken. The work undertaken in pruning the tree by the contractor was at the Defendant's direction.

General deterrence/Prevalence of offence

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 these submissions are particularly relevant in urban areas.

Specific deterrence

1. I do not consider there is need for specific deterrence, contrary to the Prosecutor's submission given the personal antecedents of this Defendant.

Section 10 of the CSP Act

1. The Defendant seeks an order under s 10 of the CSP Act. Section 10 of the CSP Act relevantly provides:

(1) Without proceeding to conviction, a court that finds a person guilty of an offence may make either of the following orders:

(a) an order directing that the relevant charge be dismissed,

(b) an order discharging the person on condition that the person enter into a good behaviour bond for a term not exceeding 2 years

...

(3) In deciding whether to make an order referred to in subsection (1), the court is to have regard to the following factors:

(a) the person's character, antecedents, age, health and mental condition,

(b) the trivial nature of the offence,

(c) the extenuating circumstances in which the offence was committed,

(d) any other matter that the court thinks proper to consider.

1. In relation to the factors in s 10(3)(a) the Defendant's counsel submitted that the Defendant is 55 years old, has detailed his professional qualifications as a civil engineer working for over 30 years for a large engineering company on major infrastructure projects, and work experience in his affidavit. He is married with three adult children who continue to live at home. He purchased the property from the school in 2007 and liked the pleasant outlook and screen of vegetation on the border of the properties. The tree is half way along the boundary within the grounds of the school with the base of the trunk about 1.8m from the edge of the Defendant's house.

1. The Defendant submits that the following additional considerations ought to be taken into account when determining the appropriate sentence in the circumstances of this case:

(i)   The Defendant is unlikely to reoffend.

(ii)   The Defendant is contrite and apologises to the community, the Council and his neighbours for this incident.

(iii)   The Defendant pleaded guilty at the first opportunity.

(iv)   At the time of the offence the Defendant co-operated with the Council ranger advising him what had occurred and providing the contractor's mobile phone number.

(v)   The Defendant is a person of good character as attested by a number of character statements (exhibit 2).

(vi)   The Defendant offers to pay the Council costs as agreed or assessed.

(vii)   The Defendant offers to pay for a suitable replacement tree in consultation with Council and the principal of the school.

(viii)   The Defendant has no prior convictions.

1. The Defendant's counsel accepts the offence is not trivial. The extenuating circumstances relied on (s 10(3)(c)) are the submissions made by counsel from the bar table that the Defendant is concerned about his ability to obtain visas for international travel for work purposes. There is no evidence to establish whether this is a real concern and it is not a matter of which I consider I can take judicial notice. I agree with the Prosecutor that in the absence of specific evidence about how real a risk to obtaining a visa a conviction would be in these circumstances, there is no basis to distinguish this Defendant from any other in terms of the need or desire for travel, whether for leisure or work.

1. I raised with the parties whether an order under s 10(1)(b) could be made which raises the same consideration as for subsection (a) except that I agreed with the Prosecutor's submission that is more relevant where specific deterrence is an issue, which it is not here.

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 liability offence. That is not relevant to this case where the pruning resulted entirely from the actions of the Defendant.

1. I am mindful of the personal antecedents of this Defendant and that this is the first occasion on which he comes before the Court. I consider he is unlikely to reoffend given his personal circumstances and have no doubt this has been a salutary experience for him. The matter is not trivial (which does not prevent the making of a s 10 order) and there are no extenuating circumstances I can take into account. Other relevant matters under s 10(3)(d) are the need for general deterrence in cases of this kind where thoughtless action results in the breach of a tree preservation order which is an important instrument in relation to the protection of urban vegetation.

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. 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 the particular circumstances of the case and the personal antecedents of the defendant justified the making of the order. There are no similar factors in this case where the actions giving rise to the offence were those of the Defendant.

1. Weighing up all these factors I do not consider I should make an order under s 10.

Subjective circumstances

1. There are a number of subjective circumstances which must be taken into account under the CSP Act.

Early guilty plea (s 21A(3)(k), s 22 of the CSP Act)

1. The Defendant pleaded guilty at the earliest opportunity. 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 opportunity. There should be a full discount on this basis.

Remorse (s 21A(3)(i) of the CSP Act)

1. The Defendant is remorseful. Together with the other actions of the Defendant in entering an early guilty plea and co-operating in the investigation, I accept the Defendant is remorseful.

No prior convictions (s 21A(3)(e) of the CSP Act)

1. The Defendant has no prior convictions in NSW for environmental offences.

Good character (s 21A(3)(f) of the CSP Act)

1. The Defendant has tendered three character references which are made with knowledge of the offence charged. While these are criticised by the Prosecutor because they refer to over trimming of a tree which the Prosecutor says does not properly reflect the more serious nature of the offence, I do not consider that criticism is warranted. I accept that the Defendant is of good character.

Prosecutor's costs

1. The Defendant has offered to pay the Prosecutor's costs. I note the costs were recently estimated at $30,000, a substantial 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.

Consistency in sentencing

1. The principle of evenhandedness requires that the Court consider if there is any general sentencing pattern for like offences in order to determine a consistent approach to penalty. This principle must always be applied subject to the particular circumstances of the case before the Court, mindful of the different circumstances leading to penalty in other cases. An appropriate sentence is to be determined mindful that:

... a basic principle of sentencing law is that a sentence...imposed by a court should never exceed that which can be justified 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).

per Hoare v R [1989] HCA 33; (1989) 167 CLR 348 at 354 (Mason CJ, Deane, Dawson, Toohey and McHugh JJ).

1. In relation to the need for care in considering sentencing patterns, if any, I adopt the following reference 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]:

In Director of Public Prosecutions (Cth) v De La Rosa , Simpson J accurately identified the proper use of information about sentences that have been passed in other cases. As her Honour pointed out, a history of sentencing can establish a range of sentences that have in fact been imposed. That history does not establish that the range is the correct range, or that the upper or lower limits to the range are the correct upper and lower limits. As her Honour said: "Sentencing patterns are, of course, of considerable significance in that they result from the application of the accumulated experience and wisdom of first instance judges and of appellate courts." But the range of sentences that have been imposed in the past does not fix "the boundaries within which future judges must, or even ought, to sentence". Past sentences "are no more than historical statements of what has happened in the past. They can, and should, provide guidance to sentencing judges, and to appellate courts, and stand as a yardstick against which to examine a proposed sentence " (emphasis added). When considering past sentences, "it is only by examination of the whole of the circumstances that have given rise to the sentence that 'unifying principles' may be discerned".

1. Numerous cases of vegetation removal are referred to 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 $4,500. 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 on a public reserve, without the council's consent. O nly one regenerating tree was damaged but the Court did not consider that the defendant should benefit from s 10 of the CSP Act because the offence was a result of deliberate conduct upon a tree in good condition. The defendant had no prior convictions. The Court considered that the appropriate penalty was $10,000 but reduced the sum to $7,500 in view of the early guilty plea.

1. No application has been made under s 6 of the Fines Act 1996.

1. I note that the Defendant agrees to pay the reasonable costs of a suitable replacement tree to be chosen in consultation with the Council and representatives of the school.

Penalty

1. I consider that the appropriate penalty is $12,000 but that it should be reduced by 40 per cent because of the numerous subjective circumstances identified above, including an early guilty plea and the large amount of the Prosecutor's costs. The penalty imposed is $7,200.

Orders

1. The Court makes the following orders:

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 .

Decision last updated: 26 October 2011