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Manly Council v Taheri

Manly Council v Taheri

Case [2008] NSWLEC 314 28 November 2008

Unauthorised Tree Removal

Environmental Impact Assessment

Revegetation Order

Public Land Management

Tree Preservation Order

Environmental Law

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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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Manly Council v Taheri

Details

AGLC: Manly Council v Taheri [2008] NSWLEC 314
Case: [2008] NSWLEC 314
Decision Date: 28 November 2008

CaseChat Overview and Summary

Siamak Taheri pleaded guilty to three offences arising from the removal of trees and vegetation on two lots of land in Seaforth. The lots are both part of DP 1110862 and comprise Lot 2, a private residential lot, and Lot 3, a harbour foreshore reserve. Taheri was convicted on all charges. The Land and Environment Court found that the majority of the trees identified in a survey and by an arborist were cut down by Taheri on 10 December 2007. The removal of vegetation from the harbour foreshore is particularly serious. The Court accepted that the removal of trees from the public land was deliberate. The Court found the offences on private land less serious given the mitigating circumstances including that the tree removal was not deliberate and was motivated by a desire to enhance views from the proposed house. The Court found the environmental harm caused by the offences significant and accepted that the area can be revegetated but it will take years for the revegetation to take effect. The Court ordered that Taheri must revegetate the land and pay the Prosecutor’s costs.

Orders