Manly Council v Taheri

[2008] NSWLEC 314

Land and Environment Court

of New South Wales

CITATION:	Manly Council v Taheri [2008] NSWLEC 314 This decision has been amended. Please see the end of the judgment for a list of the amendments.
PARTIES:	PROSECUTOR Manly Council DEFENDANT Siamak Taheri
FILE NUMBER(S):	50031 of 2008, 50032 of 2008, 50033 of 2008
CORAM:	Pain J
KEY ISSUES:	Prosecution :- sentence for plea of guilty - tree clearing without development consent and in breach of tree preservation order on private land - tree clearing without development consent on public land - whether honest mistake or deliberate act - mitigating factors - whether revegetation order appropriate
LEGISLATION CITED:	Crimes (Sentencing Procedure) Act 1999 s 3A, s 21A, s 22, s 23 Environmental Planning and Assessment Act 1979 s 5 Manly Local Environmental Plan 1988 State Environmental Planning Policy No 19 – Bushland in Urban Areas Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005
CASES CITED:	Bentley v BGP Properties Pty Ltd (2006) 145 LGERA 234 Blue Mountains City Council v Carlon [2008] NSWLEC 296 Cameron v Eurobodalla Shire Council (2006) 146 LGERA 349 Camilleri’s Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 Council of Camden v Tax (2004) 137 LGERA 368 Environment Protection Authority v Barnes [2006] NSWCCA 246 Gittany Constructions Pty Ltd v Sutherland Shire Council (2006) 145 LGERA 189 Gosford City Council v Tauszik [2005] NSWLEC 266 Johnson v R (2004) 78 ALJR 616 Mosman Municipal Council v Menai Excavations Pty Ltd (2002) 122 LGERA 89 R v Olbrich (1999) 199 CLR 270 R v Sharma (2002) 54 NSWLR 300 R v Thomson; R v Houlton (2000) 49 NSWLR 383 Tauszik v Gosford City Council (2006) 146 LGERA 428 Veen v The Queen [No. 2] (1987) 164 CLR 465
DATES OF HEARING:	28 October 2008 29 October 2008
DATE OF JUDGMENT:	28 November 2008
LEGAL REPRESENTATIVES:	PROSECUTOR Mr T Howard SOLICITORS HWL Ebsworth DEFENDANT Mr I Hemmings SOLICITORS Gadens Lawyers

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Pain J

28 November 2008

50031-33 of 2008 Manly Council v Taheri

JUDGMENT

1 Her Honour: The Defendant is charged with three offences arising out of the same tree clearing activity on 10 December 2007 at Seaforth. He has pleaded guilty to all three offences so that he has admitted the essential elements of each offence.

Matter no 50031 of 2008

2 In matter no 50031 of 2008 the Defendant is charged that he committed an offence under s 125(1) of the Environmental Planning and Assessment Act 1979 (the EP&A Act) in that he carried out development which was prohibited under the Manly Local Environmental Plan 1988 (the LEP). The land where the offence occurred was Lot 3 in DP1110862, a Council controlled harbour foreshore reserve (lot 3).

3 The development was the cutting down, destruction and removal of trees and vegetation comprising the carrying out of work and, or in the alternative, being an act, matter or thing referred to in s 26 of the EP&A Act that is controlled by an environmental planning instrument. The land was cleared by the cutting down of approximately five large trees and other trees using chainsaws. Trees were felled in a manner so as to knock over other smaller trees and vegetation. A crane was used to move logs and branches; logs and branches were cut up and mulched and removed by truck. The land clearing involved the removal of what had been a bushland tree canopy on the land, leaving a clear space where the tree canopy had been and also at ground level.

Matter no 50032 of 2008

4 In matter no 50032 of 2008 the Defendant is charged that he committed an offence under s 125(1) of the EP&A Act in that he lopped, removed and wilfully destroyed trees within the Manly Local Government Area to which a tree preservation order made by the Prosecutor applied, without obtaining the consent of the Prosecutor. Eight eucalypt, angophora and casuarina trees and pittosporum species were cut down. The trees were on Lot 2 in DP1110862, known as 81 Gurney Crescent, Seaforth (lot 2).

5 By resolution of 2 July 2001 the Prosecutor made the Manly Tree Preservation Order 2001 (the TPO). The Prosecutor was authorised to make the TPO pursuant to cl 6 of the LEP which adopted cl 8 of the Environmental Planning and Assessment Model Provisions 1980. The LEP was made under Pt 3 of the EP&A Act. The TPO applies to trees on privately owned land greater than 25cm in width and greater than 5m in height.

Matter no 50033 of 2008

6 In matter no 50033 of 2008 the Defendant is charged that he committed an offence under s 125(1) of the EP&A Act in that he carried out development on land being development which required development consent under the LEP without development consent. The development was the cutting down of trees. This offence also occurred at 81 Gurney Crescent, Seaforth. Clause 10 and the zoning table of the LEP provided that the said development could not be carried out except with development consent.

The manner of contravention by the Defendant

7 The Defendant was present on the land when the development was carried out. He directed and authorised contractors and/or servants to carry out the land clearing works. The persons who carried out those works did so on behalf of the Defendant.

8 A Statement of Agreed Facts (SOAF) was prepared which states the following:

1. Lots 2 and 3 in DP1110862 are within the local government area of Manly Council (the Prosecutor).
2. Lot 2 in DP1110862 (Lot 2) is owned by Veeda Taheri, the Defendant’s wife.
3. Lot 3 in DP1110862 (Lot 3) is a harbour foreshore reserve owned by the Prosecutor.
4. Trees were removed, under instruction of the Defendant, from both Lots 2 and 3 in DP1110862.
5. The Prosecutor’s TPO applies to all private lands within the Prosecutor’s Local Government Area.
6. The Prosecutor’s TPO applies to Lot 2 in DP1110862.
7. The Defendant did not obtain consent under the Prosecutor’s TPO for the removal of the trees on Lot 2.
8. Lot 3 is zoned Open Space under the LEP. Clearing of land is prohibited on land zoned Open Space under the LEP.
9. Lot 2 is private land and is zoned 2 residential under the LEP. Clearing of land on Lot 2 requires development consent under the LEP.
10. The Defendant did not obtain development consent for the clearing of land on Lot 2, under the LEP.
Early Guilty Plea
11. The Defendant entered a plea of guilty at the first appropriate opportunity to all three offences.
Cooperation
12. The Defendant offered to cooperate with the Prosecutor in relation to their investigations in relation to the offences
No Prior Conviction
13. The Defendant has no prior convictions in any jurisdiction.
Development Application
14. On 26 May 2007 a development application was lodged with the Prosecutor in relation to Lot 2 and 3 (DA).
15. The DA sought consent to construct a dwelling on Lot 2 and carry out landscaping works on Lot 2 and Lot 3.
16. The DA had been recommended for approval, subject to conditions, by the Prosecutor’s development assessment unit.
17. The DA is yet to be determined by the Prosecutor.
Development Consent – 85 Gurney Crescent
18. 85 Gurney Crescent is two allotments to the north of Lot 2.
19. 85 Gurney Crescent adjoins Middle Harbour.

9 The Defendant pleaded guilty and the SOAF set out above is brief. The circumstances surrounding the tree clearing activity giving rise to the offences is disputed in some important respects including the number of trees cut down on 10 December 2007. Both parties called additional written and oral evidence. The Prosecutor must establish those matters on which it relies beyond reasonable doubt while the Defendant must establish on the balance of probabilities the matters it relies on; R v Olbrich (1999) 199 CLR 270 at [27] – [28].

Prosecutor’s evidence
Rachael Smith

10 Ms Rachael Smith, an environmental scientist, was living in her parents’ house at 85 Gurney Crescent at the time of the offence. She swore an affidavit dated 1 July 2008 and gave oral evidence. She stated in her affidavit that while at her parents’ house at approximately 9am on 10 December 2007 she heard chainsaws and falling trees. At about 11am she observed, from her balcony, at least 10 men at 81 Gurney Crescent using chainsaws to cut down trees towards the “water end” of the property, close to a ridge. She also observed a crane being used to lift cut logs. The top of the property down to the ridge had been cleared of trees, the amount of which used to be “substantial”. Bits of trees remained on the soil. She saw the Defendant, whom she knew to be the owner of the property having been introduced recently, talking with the men with chainsaws and pointing towards individual trees still standing. She realised the land she was observing was owned by Council. At about 11.30am she rang the Council.

11 Ms Smith continued to observe the tree felling when the Defendant approached her, apologising for the noise. Ms Smith recalled the conversation in her affidavit. She asked the Defendant whether he knew he was cutting trees on Council land. He replied that he had Council approval for cutting down the trees and that a Council officer had been present earlier. Ms Smith told him there was a tree preservation order that protected trees on the land, to which the Defendant replied “yes, but it’s all about the view. Now I have to go see someone.”

12 Ms Smith continued to observe the tree felling and observed an angaphora being felled. The stumps of the trees were cut close to the ground and were covered with leaves. Ms Smith again called the Council at about 12.30pm, half an hour after which she saw two officers arrive.

13 Ms Smith stated in oral evidence that, a couple of months prior to the auction of the property, she had seen three or four people wearing khaki-coloured clothing carrying bags for weeds on the property over several days. She assumed these people were involved in bush regeneration and were clearing undergrowth. She did not witness these people doing anything in relation to the trees.

14 During Ms Smith’s oral evidence, the Prosecutor tendered an email from Ms Smith to a Council legal officer, dated 15 January 2008, in which Ms Smith stated observations similar to those in her affidavit.

15 Ms Smith was cross-examined on her recollection of the conversation with the Defendant as recorded in her affidavit. She stated that it was expressed accurately and, while not word for word, was along the same lines as what he said. She agreed she would have discussed the activity at 81 Gurney Crescent with Mr Grant Mayhew, landscape gardener, before she spoke to Mrs Finn, solicitor. She did not agree with the proposition that she confused something Mr Mayhew said with what the Defendant said to her.

Denese Reid

16 Ms Denese Reid, Council ranger, swore an affidavit dated 7 April 2008. Her role is to investigate complaints regarding possible breaches of legislation. She attended 81 Gurney Crescent at about 1.20pm on 10 December 2007 after receiving a call from another Council officer about illegal tree removal there. She saw a mulcher and a crane. She directed the crane operator to stop work and leave when she learned he did not have a crane permit. She then introduced herself to the Defendant, who identified himself. When Ms Reid asked him whether he had approval the Defendant answered “yes I have a DCP”. Ms Reid asked the Defendant to produce that approval and then called Mr Fenton Beatty, Council officer, to join her. Ms Reid counted 15 tree stumps and saw no trees standing between the footpath and the water’s edge while observing the site. A photograph annexed to her affidavit taken from the top of the property facing the water shows the land cleared down to the water’s edge.

17 After the Defendant returned with a document, he spoke to Ms Reid and Mr Beatty showing them his “approval” which was the Manly Development Control Plan 2007 for the Residential Zone 2007 – Amendment 1 (the DCP). Mr Beatty told him the document was not an approval, and that an application to Council was needed. The Defendant replied that he was in trouble. Ms Reid agreed.

Fenton Beatty

18 Mr Fenton Beatty, Council officer, swore an affidavit on 1 April 2008. His affidavit contains his recollection of a conversation with the Defendant when he attended the site on 10 December 2007 at about 1.45pm. He attended after receiving a call from Ms Reid.

19 On his arrival, Mr Beatty noticed large amounts of vegetation and tree trunks lying on the footpath outside the site and on Council owned lands adjoining and below the subject site. The Defendant introduced himself to Mr Beatty upon his return to the site and said that he had permission from Council “to remove the trees in the DCP document”. He said he had visited the Council and that “one of the planners has outlined to me the trees that could be removed under the DCP.” Mr Beatty replied by stating what the effect of the DCP was and that a DA, which the Defendant had not lodged, was required to remove trees over 5m in height. The Defendant said he thought that, given the DCP, he did not need approval and that the land was purchased from the Department of Planning, which said there were no issues with removing trees. Mr Beatty replied that he did not believe that to be the case. The Defendant then pointed to a tree stump, stating the Department had removed the tree there, and that he had taken photographs of the trees in order that he would not be blamed for the removal of this tree. Mr Beatty explained the effect of the Council’s TPO, that a breach had occurred and that prosecution was likely. The Defendant said that his “men” felled the large trees and “they let the trees fall taking down smaller trees below them as they fell”. He admitted he did the wrong thing and accepted responsibility while also asking for leniency as he thought he had permission. He also stated that he wanted to finish removing the rest of the felled trees from the site. Mr Beatty replied that he could not continue to fell trees but that he needed to collect felled trees that had fallen into the water to prevent their floating away. The Defendant agreed.

Grant Mayhew

20 Mr Grant Mayhew, landscape gardener, swore an affidavit dated 1 July 2008. He had been landscaping at 85 Gurney Crescent at the time of the commission of the offence. At approximately 9.00am on 10 December 2007 he drove past 81 Gurney Crescent and observed eight men with chainsaws, a crane and a number of felled trees on the site. The trees had been chopped down “to the first relatively level area”. After arriving at 85 Gurney Crescent, Mr Mayhew continued to observe the site, being only two blocks away, and saw that the men continued to cut down trees, apparently in a hurry as nobody removed the felled trees. Mr Mayhew stated that it appeared to him that the men were trying to cut down as many trees as possible. He stated that he was concerned with the way the trees were being removed, having worked with arborists, and that the men appeared not to have any regard to safety. Mr Mayhew left 85 Gurney Crescent at about 11.00am, by which time the majority of trees had been cut down on the site. He stated that the men continued felling trees on the lower portion of the property closer to the water.

Terence Byrnes

21 Mr Terence Byrnes, registered architect and planner, swore an affidavit dated 4 July 2008 giving expert evidence. It was read in part and he gave oral evidence. He inspected the site on 30 June 2008 and considered various planning instruments. He stated that the loss of trees on the property is a “material loss” in terms of impact on future development. The loss of trees forward of the building area on the site will render the future building in “stark relief” and will dominate its setting when viewed from all directions. Consideration would need to be given to the timing of construction of any new building, as future landscape elements will be in a juvenile stage for some time. Mature trees are an essential part of the character of local flora in moderating the visual impact of new buildings in the area. Annexed to Mr Byrnes’ affidavit were photographs he took of other properties in the vicinity to demonstrate these points.

22 In oral evidence he stated that he was not aware that a DA had been lodged for 81 Gurney Crescent and had not seen the development assessment unit report which referred to Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005 and recommended approval of the proposed development.

Nick Nelson

23 Mr Nick Nelson, arborist, swore an affidavit dated 11 July 2008 and gave oral evidence. His report dated (incorrectly) 1 February 2008, annexed to his affidavit, identified after reviewing the tree stumps on the land by likely size, species and condition trees that were removed recently from 81 Gurney Crescent. Mr Nelson made site inspections on 1 and 4 February 2008 (4 February 2008 was the correct date of the report). He was guided by a survey dated 1 February 2008 of trees removed with indicative relative diameters prepared by Warren Eldridge and Associates, registered land and engineering surveyors. A total of 68 “freshly cut” stumps were located during the survey. Mr Nelson found all of the stumps on 81 Gurney Crescent were from healthy and viable trees with only minor decay in the root of one angophora. The large trees on the private land would have been subject to the Council TPO. The overall canopy coverage had been high before removal and the block was typical of the vegetation for the area, being a valuable resource for fauna and seed for regeneration.

24 Mr Nelson prepared a list of 68 trees which identified 12 trees that would have been above 5m in height and in excess of 280mm in diameter and therefore subject to the TPO for the private land. (I note the TPO states it applies to trees in excess of 250mm in diameter. This mistake has no impact on his evidence of which trees were within the TPO description.) The balance of the trees identified were 5m or less. When cross-examined about the time period in which the trees were cut down he estimated these were cut down sometime in the previous six months before his inspection in February 2008. He was confident that he had correctly identified all the tree species. He was questioned in relation to Dr Clements’ finding that one tree was a different type of tree to that identified by him. He said they identified the same species but had identified different types of tree within that species.

Dr Anne Marie Clements

25 Dr Anne Marie Clements, plant ecologist, swore an affidavit dated 8 July 2008, read in part. She provided her opinion on the impact of the tree removal from lot 2 and the down slope section of lot 3 following three site inspections and consideration of aerial photographs, topographic maps, published and unpublished literature on geology and flora and Council documentation. Dr Clements listed what were the impacts of the tree removal: six months after the event, previously characteristic canopy tree species had been reduced to one observed resprouting stump and dead angophora stumps; resprouting stumps of smaller trees were recorded; the proliferation of these species may have long term consequences for re-establishing the angophora dominated forest in the area; a major landslip on the westerly slope was avoided due to retention of tree and shrub roots; there has been an increase in the diversity and abundance of exotic species due to increased light availability at ground level; the increase in exotic species will have long term environmental consequences for any regenerating bushland, proliferation of which is expected in the absence of long term, frequent weed removal. Dr Clements recommended that should the Court rule remediation works be undertaken, a long term (five year) program of bush regeneration be implemented.

Other evidence

26 The Council also relied on a range of documents including photographs and an enlarged version of the survey/overhead plan attached to Mr Nelson’s report which identifies removed trees and their spans.

27 The Council also tendered a development assessment unit report of the Council dated 30 September 2008 for the DA lodged on 26 May 2008 for a house to be built at 81 Gurney Crescent. The DA was accompanied by, inter alia, landscape plans. The report recommended approval subject to conditions. The report also noted the illegal removal of trees and these Court proceedings, recommending that extensive revegetation take place and that conditions be imposed upon the applicant to ensure successful revegetation. The report noted the applicant intended to provide vegetation including angophoras in the landscape plan.

Defendant’s Evidence
Ida Taheri

28 Ms Ida Taheri, the Defendant’s daughter, swore an affidavit dated 24 October 2008 and gave oral evidence. She detailed in her affidavit the circumstances following her parents’ purchase of the property at 81 Gurney Crescent. On 27 September 2007, the day after the purchase, she and her parents visited the property. She recalled that the property “had been mostly cleared” and that some trees around the boundary were all that remained. The undergrowth had been cleared also. She observed tree stumps, including a large stump at the top corner of the property where a large tree had been felled, the trunk of which was lying on the property. A number of photographs were taken by Ms Taheri on this occasion and were annexed to her affidavit. When asked in cross-examination whether the Council reserve had a thick canopy she could not recall nor whether the trees were native species.

Siamak Taheri

29 The Defendant swore an affidavit dated 24 October 2008, read in part over objection, and gave oral evidence. That affidavit was served on the Prosecutor on 27 October 2008, the day before the hearing.

30 The Defendant stated in his affidavit that he emigrated from Iran to Australia in 1980 and that his first language is Persian. He stated he has very little experience with New South Wales planning laws.

31 The Defendant stated that the reason his wife purchased the property was partly because “she loved the beautiful tall trees surrounding the property”. The Defendant and his wife intended to build a new house on the property.

32 Before purchasing the property, the Defendant inspected it and saw that it had been partially cleared, observing several stumps on the property and along the northern side boundary on the adjoining land as well as a large stump near the north-east corner of the property. He referred in his affidavit to the photographs his daughter took on 27 September 2007.

33 The Defendant stated that he made inquiries with Council in relation to the property on or about 3 December 2007, requesting to speak to a planner at Council reception. A Council planner who was male, about 45 years old and “of Indian appearance” spoke to the Defendant. According to his affidavit, he told the planner that, for the purposes of surveying the land prior to building a house, he needed to know which trees could be removed, as “the trees are in the way and stop the surveyor getting the right levels”. The planner replied that “the DCP has provisions for this land” and produced the DCP, annexed to the Defendant’s affidavit. The planner indicated on p 58 of the DCP which trees could be retained and which could be removed. The following page noted two trees on the property, which trees the planner stated needed to be retained. The Defendant pointed to the tree in the north east corner of the property and said that it had already been removed. The planner pointed to the foreshore reserve and told the Defendant that Council wanted him to landscape “this other portion of the land… they will require a landscape plan”. The Defendant purchased a copy of the DCP and left.

34 The Defendant stated in his affidavit that, following his conversation with the planner, he understood that the DCP “represented permission” to clear all trees from the property except for the two trees indicated by the planner. He believed he did not require further permission to remove trees from the property. He stated that he now realised this was wrong.

35 On or about 3 December 2007 the Defendant looked up a tree removalist in the local phone book. He spoke to a man named “Omar”, who said he could give the Defendant a quotation. On 8 December 2007, Omar inspected the site and quoted $3000 to cut down the trees and said a crane would be necessary given the slope of the site.

36 The Defendant attended the property at about 9am on 10 December 2007 with Omar and three of his employees. It was unclear to the Defendant where the boundaries of the property were as he did not have a survey. He was unsure which trees were on his or the adjoining property.

37 Between 9am and 1pm, felled trees were cut into logs and conveyed by crane from the property into a mulcher. The wood chips were driven away.

38 At about 9.30am the Defendant walked to 85 Gurney Crescent, meeting a woman (Rachel Smith) on the balcony. According to his affidavit, he said to Ms Smith “I am going to be cutting down the trees next door. I’m sorry about the noise.” Ms Smith replied “That’s okay. We are doing a lot of work as well and we’re used to the noise.” The Defendant noted in his affidavit that he had read Ms Smith’s affidavit, but did not recall saying “yes, but it’s all about the view”, noting that it is unlikely he said that as the purpose of speaking to her was to apologise for the noise.

39 The Defendant became concerned about falling trees damaging other trees on both his and adjoining properties. He asked the crane operator whether he could support falling trees as they were cut, but this was not possible. Smaller trees were damaged when one or two larger trees fell. Omar agreed to trim damaged trees that overhung the harbour when asked by the Defendant.

40 The tree the Council planner told the Defendant not to cut down was not cut down.

41 The Defendant set out in his affidavit the conversation with Council officers at about 1.30pm. This accords with the evidence of Mr Beatty and Ms Reid, except that the Defendant, when asked who said he could cut down trees, told the officers that it was “one of the [council] planners. He was Indian”.

42 The Defendant stated that the design for his new house on the property incorporates extensive landscaping on the property and foreshore reserve. A DA and supporting reports were lodged on 28 May 2008. The Council’s development assessment unit recommended the application for approval on 30 September 2008.

43 The Defendant noted in his affidavit that he was “very sorry and embarrassed” for what happened, and that he would never knowingly break the law. He misunderstood the advice he received, and regrets his mistake.

44 In cross-examination the Defendant stated that he was not aware of a TPO but had heard from time to time that one needed permission to cut down trees. He did not notice that the s 149 certificate attached to the contract for sale of 81 Gurney Crescent referred to a TPO. He knew he did not have permission to cut down trees on the foreshore reserve. The trees on the foreshore reserve were cut down when damaged by a fallen limb from a large angophora also on the public reserve on the southern boundary of lot 2 (shown in photograph 32). He was concerned the trees could damage boats near the water’s edge and anyone walking through the reserve. His main concern was public safety. He cannot recall saying that to the Council officers who came to the land on 10 December 2007. He then recalled that he did say that to one of the officers although that was not in his affidavit. He denied that Ms Smith told him he was cutting down trees on the Council reserve or that he told her it was all about the view. He stated that the proposed house plans included a landscape plan for the property which provided for extensive revegetation. The proposed house design is for an elevated three storey building which was set above the treeline of the small trees that were cut down. The plan includes planting larger trees than were previously on the property and reserve and any view gained will be lost over time when these trees grow. He denied that his affidavit evidence was filed late to prevent the Prosecutor checking the identity of the unnamed Council planner he saw at the Council chambers. He agreed he knew he had no right to cut down trees in the public reserve. The very large limb cut off the angophora on the public reserve fell in a way that damaged many other trees. That large limb was damaged by other trees falling on it. He did not think to call the Council when the problem arose.

Purposes of sentencing

45 The offences charged are strict liability offences. It is not part of the elements of the offence that the Defendant intended to commit the offence. Section 3A of the Crimes (Sentencing Procedure) Act 1999 (the CSP Act) identifies the purposes of sentencing. It states:

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.

46 Section 21A of the CSP Act identifies numerous matters which a court must take into account when sentencing including in relation to aggravating (s 21A(2)) and mitigating (s 21A(3)) factors.

47 In Bentley v BGP Properties Pty Ltd (2006) 145 LGERA 234 at [163] and Gittany Constructions Pty Ltd v Sutherland Shire Council (2006) 145 LGERA 189 at [110] relevant factors to determine the objective gravity of an offence were identified for offences under the EP&A 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. Other relevant factors can be consideration of the statutory scheme in which the offence provision appears; see Blue Mountains City Council v Carlon [2008] NSWLEC 296 at [48], Mosman Municipal Council v Menai Excavations Pty Ltd (2002) 122 LGERA 89 at [35].

Prosecutor’s submissions on seriousness of offence

48 The Prosecutor submitted all subparagraphs of s 3A were relevant. The offences involved the removal of a significant amount of native bushland on the foreshore of Sydney Harbour. In effect, the strip of foreshore reserve between the Defendant’s property and the harbour was denuded of all trees and vegetation.

49 The Court can be satisfied beyond reasonable doubt that:

(a) the clearing of the subject land by the Defendant involved the removal of all the trees identified by Mr Nelson, as shown on exhibit J, except possibility tree no 20;
(b) the works which took place prior to September 2007 were in the nature of bush regeneration works which did not involve significant tree removal, but may have involved removal of shrubs or small trees of week species, such as privet; and
(c) the species of trees removed by the Defendant, and the approximate dimensions of each tree have been correctly identified by Mr Nelson in exhibit J (with the possible exception that the particular species of allocasuarina identified by Mr Nelson as allocasuarina rorulosa might have been another species within the allocasuarina genus).

50 The unlawful clearing of the land involved the removal of the 67 native trees, comprising all of the trees listed in the survey, except for tree no 68, and excluding tree no 20 (and noting that there is a tree 17A, which adds one to the total which would otherwise be obtained numerically by subtracting 2 from 68). These trees comprised:

(a) 15 trees of the pittosporum species; and
(b) 52 trees, variously of the following species: eucalyptus sp, angophora costata, allocasuarina sp, ficus rubigniosa and glochidodon ferdinandii.

Significance of the foreshore vegetation

51 Sydney Harbour foreshore including the area illegally cleared by the Defendant, is listed as an item of environmental heritage in the LEP; see cl 7 and Sch 4 of that instrument.

52 Sydney Harbour is identified in the Sydney Harbour Foreshores and Waterways Area DCP as one of Australia’s greatest cultural resources, in a passage which clearly contemplates the foreshores as well as the waterway; see the Introduction at p 1 of that DCP). The Sydney Harbour foreshore is identified in the Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005 as a place of “exceptional heritage significance”. These documents do no more than state what is common knowledge and what may be judicially noted, namely that Sydney Harbour including its foreshores is an icon.

53 The following instruments and development control plans demonstrate that there is an obvious expectation that development on the foreshores of Sydney Harbour will be balanced by the retention of native bushland as an indispensable part of foreshore character wherever the opportunity can be provided:

(a) Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005;
(b) Sydney Harbour Foreshores and Waterways Area DCP (see introduction at p 1-2; Table 2 at p 10; Table 3 at p 12;Section 3 “Landscape Assessment” at p 17 and 22 (Landscape Character Type 4);
(c) State Environmental Planning Policy No 19 – Bushland in Urban Areas (see cl 2, 6 and 9); and
(d) Manly Local Environmental Plan 1988 (see cl 3 “Aims”: subparagraphs (e) and (i); cl 17-19 and Sch 4: listing the foreshore as a heritage item).

54 The area of foreshore land illegally cleared by the Defendant also formed part of a foreshore scenic protection area under the LEP. In light of the heritage value of the foreshore and the nature of the works carried out, the damage or harm caused by the commission of the offence was substantial. This should be taken into account as an aggravating feature of the offences, pursuant to s 21A(2)(g) of the CSP Act. This is consistent with a finding to that effect in the case of Gittany v Sutherland Shire Council at 218 which would apply by analogous reasoning.

State of mind of the offender/reasons for committing offence

55 The Defendant acted deliberately. He knew he did not have permission to cut down trees on the public reserve. He continued to cut down trees despite the warning from Ms Smith. The only rational inference for his behaviour is that the land was cleared in order to facilitate the proposed residential development of the land, by providing maximum flexibility for siting and size of the house on the private lot to maximise views. The explanation for the trees being cleared as being for survey work is not credible.

56 Objectively it is clear from the photograph DM2 (a photograph annexed to Ms Reid’s affidavit) that views over the water increased from the proposed house plans which refer to maximising water views. The Defendant conceded this in his oral evidence. He told Ms Smith it was all about the view.

57 The explanation that all the trees had to be chopped down because they were damaged by the trees falling over on the private land should not be believed. Such an explanation if true would have been told to the Council officers. The Defendant makes no reference in his affidavit to this either. Further, TPOs are in place across most local government areas throughout NSW and their existence is common knowledge. The TPO is referred to in the DCP in any event. His belief (which should not be held to exist) that the DCP allowed all but two trees to be removed was capricious and unreasonable.

Defendant’s submissions

58 The Defendant’s crime was to “jump the gun”. A development application has been lodged for a house at 81 Gurney Crescent and that is supported by a landscape plan. The report of the Council officers to the Council IHAP (Independent Hearing Assessment Panel) recommends approval and includes the landscape plan.

59 The Defendant admits he made a stupid mistake. He did not act deliberately. The fact that he does not agree with the Prosecutor’s estimate of the number of trees cut down does not cast doubt on the integrity of his guilty plea. I cannot be satisfied beyond reasonable doubt that any of the trees were cut down on 10 December 2007.

60 The Prosecutor has chosen to call evidence to establish the number of trees on the site by calling an arborist who visited the site two months after 10 December 2007. His evidence is that the trees he identified could have been cut down in the last six months before February 2008, in other words back to August 2007. Evidence collected on or very shortly after the day by the Council officers as to what they saw would have provided more contemporaneous evidence. There was work done on site before the auction on 26 September 2007. At least one tree (number 20) was cut down beforehand as Mr Nelson accepted.

61 Under the Council’s TPO trees higher than 5m or having a diameter of 250mm are protected. The trees capable of satisfying the TPO on the public reserve are trees numbered 17, 18, 37, 45, 50, 60 and 67. Apart from 37 and 45 there are five trees of sufficient height to be subject to an order. When the elevations of the proposed house are considered most of the trees in the public reserve are below 3m to 4m in height. They could not be considered as likely to have an impact on the view. It is accepted that removal of trees on the public land is serious.

62 The trees on private land were likely to have little impact on view lines from the proposed dwelling. In terms of the two trees identified in the DCP, one was removed before the Defendant purchased the property. The other tree identified for retention in the DCP is part of the same view line as the other existing angophora trees.

63 The Defendant’s evidence of the conversation with Ms Smith should be preferred. His recollection of going early in the morning is more consistent because, as an objective fact, it is more likely that someone would do that if they were apologising for the noise. Also the Council officers did not come in the afternoon.

64 Ms Smith’s recollection was not precise, rather it was her impression of what was said in relation to the “view”. Why would the Defendant respond in that way? His motivation was not about the view.

65 Subject to appropriate revegetation of the site there is little environmental harm. Any punishment should not require the view to be blocked in perpetuity. The mistake is capable of remedy.

66 The stump shown in photographs taken by Ms Ida Taheri was of a tree removed more than six months before and is the other tree referred to in the DCP.

67 The Defendant’s mistake was reasonable and his behaviour consistent with that mistaken belief. His wife bought the property for a family home and he made enquiries about the removal of trees at the Council. He engaged a professional person to remove the trees.

68 The totality principle should apply to all three offences as all arise from the same events.

Dispute in evidence

69 There are discrepancies between the written and oral evidence of Ms Smith and the Defendant concerning the conversation they had on the morning of 10 December 2007. The Defendant’s evidence is that he went to 85 Gurney Crescent early in the morning before work commenced at 81 Gurney Crescent and spoke to Ms Smith. It was a very brief conversation in which he apologised for the noise that would be caused. Ms Smith recollects a lengthier conversation late in the morning in which the Defendant apologised for the noise that was occurring from the tree cutting. She told him he was cutting down trees in the Council reserve. He told her that he had approval, a Council officer had been out that morning and that it was “all about the view”. The Prosecutor relies on this conversation to prove the greater culpability on the Defendant’s part because he continued with the tree removal including on the public reserve (lot 3) after that conversation.

70 The Prosecutor must establish those facts on which it relies beyond reasonable doubt. There are no objective facts which assist in determining which version of the disputed conversation is correct. I do not consider that the submission of the Defendant’s counsel that the Defendant apologised for the noise was an objective fact which supported a conclusion that he must have come before the work commenced. The versions of the conversations are simply different reflecting the different times of day they are believed by each witness to have occurred.

71 Ms Smith was a neighbour who reported the tree clearing to the Council after realising that trees on public land were being removed. She sent an email to the Council’s solicitors in January 2008 which is in similar terms to the evidence in her affidavit. That email is sufficiently proximate in time to suggest that her recollection of the conversation is accurate. In addition I had the opportunity to observe her give oral evidence and she remained firm in her evidence when cross-examined. She stated that the Defendant’s comment in relation to it being all about the view was an approximation of what was said to her but her evidence was definitely that similar words were said to her. While the Defendant also remained firm in cross-examination there is no suggestion that Ms Smith is anything other than a concerned neighbour and believes she is speaking truthfully. I consider I should accept Ms Smith’s evidence of the conversation with the Defendant on 10 December 2007.

Sentencing considerations
Objective seriousness of the offence

72 The maximum penalty applicable to each offence is $1,100,000 a substantial penalty. The maximum penalty is the expression by Parliament of the seriousness of the offence: Camilleri’s Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 at 698.

73 The objective harmfulness of the Defendant’s actions needs to be considered in relation to the amount of environmental harm caused by the three offences. Part of determining the level of environmental harm requires determination of how many trees were knocked over. The Prosecutor must establish that fact beyond reasonable doubt. Those matters the Prosecutor argues it has established are set out in par 49(a) and (c), inter alia. The Defendant disputes that the number of trees identified in the survey apart from tree no 20 (67 in total) and by Mr Nelson, arborist, was proved to have been knocked over on 10 December 2007 on lots 2 and 3. Lot 3 is an L-shaped block located below lot 2 down to the harbour’s edge and on the southern side of lot 2.

74 Mr Nelson’s evidence is that all the trees identified in the survey and listed in the table in his evidence were likely to have been knocked over within the last six months before his inspection in February 2008. That evidence introduces an element of uncertainty as to when all the trees were cut down. This period extends back before the auction on 26 September 2007 and encompasses the period when bush regeneration work was done as referred to in Ms Smith’s evidence. The evidence of Ms Smith establishes that no tree removal took place as part of that work. There is no evidence of any other work being done on either lot 2 or lot 3 in the six month period before February 2008 apart from the tree clearing on 10 December 2007. The Defendant did refer to one of the photographs attached to Ms Ida Taheri’s affidavit which shows a large log on the ground to suggest that the Council might have done some work. The log is rotted and looks as if it has been there for quite some time, easily more than six months. That evidence does not suggest further work occurred in relation to the cutting down of trees in that six month period.

75 That there were substantial numbers of trees knocked over on 10 December 2007 can be inferred from the evidence of Ms Smith and Mr Mayhew who saw numerous trees being removed in haste by a group of about eight men over several hours in the morning of 10 December 2007 from at least 9am to shortly after 1pm. The Council officers Ms Reid and Mr Beatty attended the site on 10 December 2007. Ms Reid ordered work to stop at about 1.20pm. Ms Reid states that she saw 15 tree stumps on the land by which I infer she referred to lots 2 (private land) and 3 (public land). The photographs attached to Ms Reid’s affidavit show no trees on lot 2 and lot 3 in that section of lot 3 down to the harbour’s edge after the tree clearing on 10 December 2007. Mr Beatty states he saw large amounts of vegetation and tree trunks on the footpath outside lot 2 and on Council land adjoining and below lot 2 on 10 December 2007.

76 The photographs taken by Ms Ida Taheri on 27 September 2007, the day after the auction, also show trees on the land and very little undergrowth or mid level shrubs/trees. Her evidence that there were just a few trees along the boundaries of lot 2 is imprecise as to the number of trees on lot 2. She could not recall whether the trees in the public reserve had a thick canopy and she did not know if they were native. Nor was her evidence directed to establishing that. The photographs were taken to show lot 2 and surrounds generally not to identify the exact number of trees.

77 I consider that the Prosecutor has proved to the necessary standard of proof that the vast majority of trees identified in the survey and by Mr Nelson were cleared on 10 December 2007, in particular the 12 large to very large trees of 5m and above and over 250mm circumference. Five such trees are identified on lot 3 and seven on lot 2. This includes the trees on lot 2 the subject of the TPO. Five very large trees on lots 2 and 3 were over 10m, and included three angophora trees, one eucalypt and one fig.

78 The survey and Mr Nelson identifies 56 trees less than 5m cut down. Not all of these were significant, in particular numerous small pittosporum were cut down as the Prosecutor identified (par 50), but many were smaller valuable native trees. The exact number of smaller trees cleared is uncertain but is substantial and I consider the majority of smaller trees identified in the survey were also cleared on 10 December 2007. Uncertainty was raised by the Defendant’s evidence in relation to the trees cut down on lot 3 on the southern boundary of lot 2. Based on the Defendant’s evidence about five trees were felled in this area of lot 3, several fewer than the survey identified. The Prosecutor cannot establish beyond reasonable doubt that all the trees in this area of public land identified in the survey were knocked over on 10 December 2007 in light of that evidence and the uncertainty introduced by Mr Nelson’s evidence of a six month “window” for the tree felling.

79 Environmental harm is referred to in the evidence of Dr Clements in par 25 to the effect that exotic species are more prevalent in the area and this may impact on the ability of the angophora forest to re-establish. The Defendant’s counsel submitted that the area can be revegetated and any environmental harm is limited and can be overcome in this way. This submission understates the level of environmental harm. Given the extent of clearing, it will take a number of years to establish any revegetation program and for trees to grow to the height of those cut down. The environmental harm is significant.

Matter no 50031 of 2008 - Public land (lot 3)

80 There was removal without consent of trees on public land between the private land (81 Gurney Crescent) and the harbour’s edge. There are several reasons why that offence is the most serious. Firstly in terms of environmental impact, in addition to my statements at par 79, the significance of vegetation on the harbour foreshore is identified in the numerous planning instruments referred to in the Prosecutor’s submissions (par 51-54). I adopt these submissions. The removal of vegetation on public land is a serious matter and that is exacerbated in this case by the location of that public land on the harbour foreshore. The Sydney Harbour foreshore is well recognised as a significant cultural and environmental resource.

81 Secondly, there is clearly a visual impact resulting immediately from the offence given that where once there were trees on the harbour foreshore adjacent to 81 Gurney Crescent there were none after the offence. That impact will continue for several years. I accept Mr Byrnes’ evidence on the extent and negative visual impact that has resulted from the offences. Once again the loss of trees on the Sydney Harbour foreshore exacerbates what is already a serious matter.

82 Thirdly the Defendant’s state of mind must be considered in relation to the offence on public land. The Defendant gave evidence that he was aware that he could not remove trees on public land without consent which he did not have. According to him, the public land clearing occurred because of the impact of the tree clearing on the private land (lot 2) and arose on 10 December 2007 because the trees on lot 2 were cleared in such a way that damage was caused to trees on the public land. He explained his actions on the basis that he was concerned about public safety for anyone walking in the reserve and for the impact on boats as damaged trees may have fallen on boats at the water’s edge.

83 Even if the tree felling on lot 3 below lot 2 resulted from the poor performance of the tree loppers damaging the trees on the public land rather than from a desire to remove trees to improve the view from the property, the tree removal was deliberate. The complete failure by the Defendant to control the contractors on the site resulted in substantial loss of trees on public land. Particularly damning evidence in my view is found in photograph DMR 2 attached to Ms Reid’s evidence which shows a very large angophora standing with a very large limb cut off. The oral evidence of the Defendant was that the angophora is on public land and that the huge limb which was cut off was damaged by other trees cut down on lot 2 falling onto that limb and damaging it. When the limb was cut off and it fell it damaged the remaining trees on lot 3 below lot 2 so that all these trees also had to be removed. The level of incompetence demonstrated by the Defendant and the contractors is marked.

84 The Defendant’s explanation for why the loss of trees occurred on lot 3 is undermined to some extent by the conversation with Ms Smith. I have accepted her version of the conversation with the Defendant on 10 December 2007. The Defendant told her he had permission to cut down trees on the Council reserve and that it was “all about the view”. It is to the Defendant’s credit that he clearly stated in his evidence at the hearing that he knew he did not have permission to cut down trees in the reserve. He also sought to rely on the circumstances that the proposed house will be elevated and views would be largely unaffected by the vegetation that was cut down as that was low in height. Contrasting with that evidence is the design of the house in the plans in evidence which has extensive glass walls at the front on all three levels of the proposed house. The plan also, not surprisingly given the location, refers to maximising water views. The Defendant agreed that the aim of the house design was to maximise the views.

85 A consequence of the loss of trees on both lot 2 and lot 3 is that the Defendant’s wife’s land has unimpeded views of Sydney Harbour. It is intended that a family home will be built on the land so that the Defendant will also benefit from that circumstance while the proposed revegetation program and landscaping plan supporting the DA is implemented. This makes it difficult to accept the Defendant’s evidence that he was not concerned about increasing the view when the trees on lot 3 were removed. I accept that it may not have been a prime motivation in relation to the tree removal on lot 3 but I do not accept it was an entirely absent consideration on his part.

86 The Defendant admitted in oral evidence that five trees (7, 8, 16, 21, 23) on lot 3 on the southern side of lot 2 were knocked over. No explanation was provided by the Defendant for why trees on the adjoining public land on the southern boundary of lot 2 were cut down other than his evidence that he did not know exactly where the boundary of his wife’s land was. Accepting his evidence that these were the only trees cut down in this area by the contractors confirms the extremely careless manner in which the work was carried out, including without a correct boundary line being established.

87 Given the deliberate decision to cut down trees on lot 3 and the circumstances of that clearing outlined above the offence is serious.

Matters no 50032 and 50033 of 2008 - Private land – lot 2

88 There are two offences concerning the tree felling on lot 2. As they are related I will consider them together. The statements concerning environmental harm above at par 79 apply to the private land (lot 2) also.

89 In matter no 50033 of 2008, considering the Defendant’s state of mind in relation to carrying out development without consent, the Defendant explains his actions by relying on his mistaken belief that the DCP provided approval for the removal of all trees other than the two identified on the land at p 59 of the DCP. I accept the Defendant’s evidence that he did attend the Council chambers, spoke with a planner and that he believed that he did not require further development consent to knock down trees other than the two identified in the DCP. The mistake is a stupid, but honest, one.

90 I have given the Defendant the benefit of the doubt in so finding given the very late disclosure by him in his affidavit dated 24 October 2008 served on the Prosecutor the day before the sentence hearing that he had attended the Council chambers and spoken to an unidentified planner and understood that was the advice he had received. In cross-examination the Defendant was asked if he could identify the planner at the Council chambers and he said he could do so easily. When asked why he had not he said his solicitor had not asked him to. I note that the Prosecutor did apply for leave to call evidence from a Council planner who fitted the description provided by the Defendant of the person that he spoke to at the Council. After discussion that application was not pressed at the hearing so that the Prosecutor ultimately did not lead evidence to challenge the Defendant’s evidence on this aspect. There was otherwise nothing in the Defendant’s evidence which suggested that he was untruthful in stating the nature of the advice that he believed he received from the unknown Council planner. As recorded in Mr Beatty’s affidavit and his affidavit (in slightly different terms) he also told Mr Beatty, Council officer, at 81 Gurney Crescent on 10 December 2007 that a Council planner told him that he had permission to cut down trees. It is of course highly unlikely that is the advice he actually received from the Council planner as it is clearly incorrect, as would have been apparent had he read the copy of the DCP that he purchased at the Council chambers.

91 In relation to matter no 50032 of 2008 concerning the felling of trees in breach of the TPO, the Defendant stated he was unaware that a TPO applied to lot 2. The well known statement that ignorance of the law is no excuse certainly applies given that there is a clear reference to the TPO in the DCP (at p 37) and in the s 149 certificate which would have formed part of the contract for sale for the land. The Defendant has lived in Australia for about 30 years in several locations in Sydney. Had he made proper inquiries at the Council or read the DCP it is highly likely he would have been either told of or become aware of the TPO. The extent of culpability in this circumstance is high.

92 In relation to both offences, the Defendant’s stated reason for the tree clearing on the private land was to prepare the land for surveying purposes. He said he was concerned that accurate levels be taken as the site was steep and difficult to build on. No evidence from a surveyor to support this view was provided. Given the extent of tree clearing undertaken in an incompetent manner it is a weak explanation at best which strains the bounds of credulity. The Prosecutor argued that the tree clearing was motivated by the desire to have water views from the property, relying on the conversation with Ms Smith, statements of the Defendant in cross-examination and the house plans submitted to the Council for development approval which refer to maximising water views. I have held that I prefer Ms Smith’s version of the conversation so that he did say to her “it is all about the view” on the morning of 10 December 2007. I consider it is very likely the Defendant’s actions were motivated by a desire to enhance views of the water but in so finding this is in the context that I have accepted that the Defendant did honestly believe he had permission to remove most of the trees on lot 2 apart from the two identified in the DCP on p 59. That renders his behaviour less culpable.

93 These circumstances suggest that the objective seriousness of the two offences on private land are in the medium range with the TPO offence (matter no 50032 of 2008) more serious within that range given the lack of any reasonable explanation for not complying with the TPO.

94 A further consideration for all three offences in determining their objective seriousness is that, as identified in a number of sentencing decisions in this Court, most recently Blue Mountains City Council v Carlon, the carrying out of development without the requisite development consent undermines the effectiveness of the statutory planning controls. That in turn undermines the objects of the EP&A Act, s 5(a)(ii) and (c).

Deterrence

95 The Prosecutor argued that specific deterrence for this Defendant was necessary to consider on penalty because while he has pleaded guilty he has sought to minimise his culpability. For example, he did not accept that all trees the Prosecutor alleges were removed were removed on 10 December 2007. Specific deterrence as referred to in Veen v The Queen [No. 2] (1987) 164 CLR 465 at 477 refers to a defendant who displays:

uncharacteristic aberration or whether the offender has manifested in his commission of the instant offence a continuing attitude of disobedience of the law .

96 There is no evidence supporting a finding that the Defendant’s penalty warrants consideration of specific deterrence. He has no prior convictions, has expressed regret for what he has done and has cooperated with the Prosecutor. It is unlikely that he will commit similar offences again.

97 General deterrence is also an important element for an offence of this nature. Other decisions have recognised the importance of preserving urban bushland on public land and urban bushland generally: see Gittany, Cameron v Eurobodalla Shire Council (2006) 146 LGERA 349 referred also to Council of Camden v Tax (2004) 137 LGERA 368, and Gosford City Council v Tauszik [2005] NSWLEC 266. Given that a large number of trees were removed on public land without consent general deterrence in relation to such offences must be considered.

Even handedness

98 A consideration in sentencing is that similar offences should receive similar penalties, the principle of even handedness. This statement is generally qualified by recognising that every matter must be determined on its own facts. The Prosecutor referred to Gittany and Tax but also submitted that there was no immediately similar case.

99 In Tax, the defendant had pleaded guilty to removing approximately 40 trees without consent. He had believed that the trees were insignificant saplings and did not require consent for removal. The evidence indicated that most of the trees removed were over 10 years old and included at least 15 forest red gums. McClellan J was satisfied that the defendant had been aware consent was required for tree removal by the fact he had sought consent to remove trees some three years prior to the offence. His Honour was also satisfied the defendant knew that the trees were not insignificant in nature. His Honour imposed a penalty of $45,000 reduced to $30,000 in light of mitigating factors.

100 In Tauszik McClellan J found the defendant guilty of an offence involving the lopping of three Norfolk Island pines on the defendant’s property without consent. His Honour held that the trees were a significant component of the local landscape and were removed to enhance the views from the defendant’s property. The defendant knew consent was required. His Honour had regard to the wilfulness of the defendant’s actions and the fact that an application for consent to remove the trees would not have been likely to be granted. His Honour fined the defendant $25,000, an amount that his Honour stated factored in the defendant’s potentially very high legal costs and an order for replanting and maintaining young Norfolk Pines in lieu of the removed trees. The defendant’s conviction was quashed in Tauszik v Gosford City Council (2006) 146 LGERA 428 on a legal point relating to s 125 of the EP&A Act and the form of the TPO in issue.

101 Cameron was an appeal to this Court against a $10,000 fine imposed by a local court for clearing land. The appellant had cleared a dead tree and lopped branches of live trees, including a gum tree, on public land at the rear of his property which had been obscuring his water views. While there was no evidence of permanent damage to the gum tree, the fact that the lopping occurred on a public reserve increased the objective harmfulness of the offence, as found by the local court. The fact the appellant had wilfully lopped the branches to improve his views, contrary to advice received from a councillor, was also an aggravating factor. General deterrence was also upheld as a major consideration in sentencing by Preston J. His Honour noted the importance of public areas and bushland in urban areas. In mitigation, no evidence of contrition or remorse was found. Preston J dismissed the appeal finding the local court fine appropriate.

102 Gittany was an appeal against the severity of local court sentences imposed for the removal of bushland and two eucalyptus gummifera trees marked for retention. The appellant company had engaged a contractor to develop a site containing the trees, which were removed by the contractor in breach of a TPO and conditions of a development consent. The directors of the appellant company knew the terms of the development consent and the need to retain trees, but the requirements of the conditions were not brought to the contractor’s attention. The appellant had control over the site and the contractors. Preston J held that the damage caused by those offences was substantial and an aggravating factor, and the absence of evidence of specific details of existing trees, inter alia, did not preclude his Honour making that finding (at [122]). His Honour dismissed the appeals and noted that the seriousness of the offences warranted a greater penalty ($60,000) than that imposed by the local court ($30,000).

103 The Prosecutor’s counsel referred to the analysis in Cameron to the effect that penalties for tree clearing offences generally seem to be increasing (at [106]).

Mitigating circumstances
Early guilty plea - Crimes (Sentencing Procedure) Act 1999, s 21A(3)(k), s22

104 The Defendant entered a plea of guilty to all three offences at the first available opportunity (SOAF par 11). The utilitarian value of a plea in saving the expense of a contested hearing should be recognised in the reduction of penalty in the range of 10-25 per cent: R v Thomson; R v Houlton (2000) 49 NSWLR 383; R v Sharma (2002) 54 NSWLR 300. Given the early pleas of guilty a substantial reduction in penalty is warranted.

Co-operation - Crimes (Sentencing Procedure) Act 1999, s 23

105 The Defendant offered to co-operate with the Prosecutor in relation to their investigations in relation to the offences (SOAF par 12).

No prior conviction - Crimes (Sentencing Procedure) Act 1999, s 21A(3)(e)

106 The Defendant has no prior convictions in any jurisdiction (SOAF par 13).

Contrition/remorse - Crimes (Sentencing Procedure) Act 1999, s 21A(3)(i)

107 The Defendant clearly expressed his contrition for the offences in his affidavit. I accept his expression of contrition.

Good character - Crimes (Sentencing Procedure) Act 1999, s 21A(3)(f)

108 The Defendant tendered three references from people who have known him for many years which attested to his good character. They were written with knowledge of the charges and all attested to the high standing of the Defendant, the strength of his character and his honesty both professionally and on a personal level. The referees also expressed surprise with the Defendant’s conduct and expressed the view that he is unlikely to re-offend.

109 I accept that the Defendant is of good character and is unlikely to re-offend (s 21A(3)(g)).

Additional matters to consider
Prosecutor’s costs

110 The costs of the Prosecutor which the Defendant must pay are estimated at over $80,000, a substantial sum. The amount of costs can be taken into account as part of the consideration of penalty: see Environment Protection Authority v Barnes [2006] NSWCCA 246.

Order to revegetate

111 The Defendant is willing to enter into a s 126(3) order made under the EP&A Act. That section provides:

(3 ) Where a person is guilty of an offence involving the destruction of or damage to a tree or vegetation, the court dealing with the offence may, in addition to or in substitution for any pecuniary penalty imposed or liable to be imposed, direct that person:

(a) to plant new trees and vegetation and maintain those trees and vegetation to a mature growth, and
(b) to provide security for the performance of any obligation imposed under paragraph (a).

112 Proposed revegetation orders were prepared and provided to the Court. They relate to the private land (Lot 2) in Order 1 and the public land (Lot 3) in orders 2 and 3. They are in terms agreed by the parties except for one issue of the appropriate maintenance period.

113 The Defendant obtained an expert report from bushcare consultants Bush-It Pty Ltd as to the appropriate planting regime and the cost of complying with the orders in relation to the public land. The estimated cost is $34,752.30. If the maintenance period was reduced from five to three years the cost would be reduced to $21,216.30. The consultants consider that a three year maintenance period is sufficient. The Defendant submitted based on this opinion that the maintenance period should be three years not five. The Prosecutor submitted that five years is an appropriate period and is more likely to ensure that the revegetation process is successful.

114 The Defendant also submitted that the cost of revegetating the public land is a factor that should be weighed up in the assessment of penalty for the public land offence although it is not argued there should be a reduction of penalty in the specific amount of that cost. Rather it is part of the general balancing considerations the Court should undertake. I agree.

115 I consider that in addition to a penalty a revegetation order ought be made pursuant to s 126 of the EP&A Act. The appropriate period of maintenance is five years in my view as that is more likely to ensure the success of the revegetation program being effected on the public land. This is confirmed by the evidence of Dr Clements who recommended a minimum five year period of maintenance (see par 25). I will take into account as part of the balancing of relevant considerations the cost of complying with the s 126 order in my determination of penalty in relation to the offence on public land.

Totality principle

116 The totality principle is a well-established principle of sentencing to be applied by the court when sentencing an offender for more than one offence. It requires a judge to determine an appropriate sentence for each offence, consider questions of cumulation or concurrence and then, when reviewing the aggregate sentence, consider whether it is “just and appropriate”; see Johnson v R (2004) 78 ALJR 616 at [18]. This principle applies to all three offences as I consider they arise from the one tree clearing event albeit on different lots in different ownership.

Conclusion

117 Taking into account all these matters firstly in relation to the offence on the public land (lot 3), matter no 50031 of 2008, the offence is serious and there was and is significant environmental harm. There are mitigating factors to consider including the early plea of guilty, contrition, no prior convictions, cooperation with the Prosecutor, and that the Defendant is of good character. I also take into account generally the cost of implementing the revegetation plan of $34,752.30 for five years. The Prosecutor’s costs are in excess of $80,000 across all three offences and that is also a very substantial amount for which the Defendant is liable to pay. A penalty of $50,000 is warranted which should be reduced to $35,000 taking into account the numerous mitigating factors referred to in the CSP Act and other factors identified above.

118 The offences on lot 2 (matters no 50032 and 50033 of 2008) are less serious because of the different circumstances in which they were committed. The same mitigating circumstances outlined above should also be considered. The Prosecutor’s costs are also substantial. Any penalty for these offences should also be reduced to take into account the totality principle. I consider for matter no 50032 of 2008 the appropriate penalty is $20,000 and for matter no 50033 the appropriate amount is $10,000.

Orders

119 The Court makes the following orders:

1. In matter no 50031 of 2008 the Defendant is convicted of the offence as charged.
2. In matter no 50031 of 2008 the Defendant is fined $35,000.
3. In matter no 50032 of 2008 the Defendant is convicted of the offence as charged.
4. In matter no 50032 of 2008 the Defendant is fined $20,000.
5. In matter no 50033 of 2008 the Defendant is convicted of the offence as charged.
6. In matter no 50033 of 2008 the Defendant is fined $10,000.
7. Pursuant to s 126(3) of the Environmental Planning and Assessment Act 1979 the Defendant must revegetate lots 2 and 3 of DP1110862 in accordance with the revegetation plan in Annexure A to these orders.
8. The Defendant must pay the Prosecutor’s costs as agreed or assessed in all three matters.
ANNEXURE A

1 In respect of the Lot 2 in DP 1110862, the defendant, whilever he has an equitable interest in that land, is to implement all requirements in respect of landscaping imposed pursuant to the development consent granted by the Manly Independent Assessment Panel on 20 November 2008 in determination of DA No. 169/08, such requirements to be implemented by the defendant prior to the issue of an occupation certificate in respect of the approved building.

2 In respect of Lot 3 DP 1110862, the defendant is to comply with each of the following orders.

3 Within 3 weeks of the date of this order, the defendant is to retain a suitably qualified bushland regeneration consultant. The person so retained is to be a member of the Australian Association of Bushland Regenerators and must hold minimum qualifications of a TAFE Certificate Level III in Conservation and Land Management. The person so retained must be provided with a copy of this order and its annexed Tree Location Sketch.

4 By no later than 31 January 2009, the defendant is to cause the following trees to be planted in the locations identified in the Tree Location Sketch annexed hereto and marked "A":

a. 7 Angophora costata – one in each of the locations depicted as T7, T8, T11, T13, T 14, T16 and T17 on the Tree Location Sketch, each to be of a size of 45 litres and a minimum height of 2.2 metres at planting;
b. 2 Ficus rubigniosa - one in the location depicted as T12 on the Tree Location Sketch and another in the location depicted on the Tree Location Sketch as a circle highlighted in yellow and marked “67”, each to be of a size of 45 litres and a minimum height of 2.2 metres at planting;
c. 2 Eucalyptus piperita - one in each of the locations depicted on the Tree Location Sketch by the circles highlighted in yellow and marked respectively “57” and “60”, each to be of a size of 45 litres and a minimum height of 2.2 metres at planting; and
d. 5 Allocasuarina dystyla - one in each of the locations depicted on the Tree Location Sketch as T1, T2, T3, T4, T5, each to be of a size of 45 litres and a minimum height of 1.2 metres at planting.

5 By no later than 31 January 2009, the defendant is to cause the planting of understorey vegetation to be undertaken on Lot 3 DP 1110862, utilising only local indigenous native shrubs and groundcovers - species and number to be selected by the said bushland regeneration consultant with the objective of emulating native understorey in comparable local indigenous bushland.

6 The defendant is to ensure that the said bushland regeneration consultant is retained to attend and supervise the planting regime referred to in the preceding orders and that the recommendations of the said bushland regeneration consultant are implemented unless contrary to these orders. The defendant is to forward to the Prosecutor reports from the bushland regeneration consultant no less than once every six months.

7 The defendant must maintain the said trees and understorey vegetation for a period of 5 years to the satisfaction of the said bushland regeneration consultant, who is to be retained for the duration of the 5 year maintenance program to attend the site and make any appropriate recommendations at least once every 6 months for the 5 year period. In the event that the said bushland regeneration consultant becomes unavailable during the said period, the defendant is to retain another suitably qualified person in accordance with paragraph 3 of these Orders – to complete the process.

8 Such further or other order as the Court deems appropriate.

10/12/2008 - tree location sketch omitted - Paragraph(s) annexure