Parramatta City Council v Cheng - [2010] NSWLEC 94

Land and Environment Court

of New South Wales

CITATION: Parramatta City Council v Cheng [2010] NSWLEC 94

PARTIES: PROSECUTOR
Parramatta City Council
DEFENDANT
Robyn Merie Cheng

FILE NUMBER(S): 50012 of 2010; 50013 of 2010

CORAM: Pain J

KEY ISSUES: PROSECUTION :- sentence for plea of guilty - tree clearing in breach of tree preservation order on private land by owner employing contractor - finding that offence proved but no conviction recorded

LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999 s 3A, 10, 21A
Environmental Planning and Assessment Act 1979 s 5(a)(ii), 125(1)
Local Government Act 1993
Parramatta Local Environmental Plan (2001)

CASES CITED: Axer Pty Ltd v Environment Protection Authority (1993) 113 LGERA 357
Bentley v BGP Properties Pty Ltd [2006] NSWLEC 34; (2006) 145 LGERA 234
Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683
Gittany Constructions Pty Ltd v Sutherland Shire Council [2006] NSWLEC 242; (2006) 145 LGERA 189
R v Paris [2001] NSWCCA 83
Willoughby City Council v P and V Masonry Pty Limited [2003] NSWLEC 312

DATES OF HEARING: 8 June 2010

DATE OF JUDGMENT:
10 June 2010

LEGAL REPRESENTATIVES: PROSECUTOR
Mr T Howard
SOLICITOR
Storey & Gough
DEFENDANT
Mr G McKee (solicitor)
SOLICITOR
McKee's Legal Solutions

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Pain J

10 June 2010

50012 of 2010; 50013 of 2010 Parramatta City Council v Cheng
JUDGMENT

1 Her Honour: The Defendant, Ms Cheng, has pleaded guilty to two charges that on 21 October 2008 she committed an offence under s 125(1) of the Environmental Planning and Assessment Act 1979 (the EP&A Act) in that three trees were cut down on her property in Ermington in breach of a tree preservation order (TPO) made under the Parramatta Local Environmental Plan (2001) (matter no 50012 of 2010) and one tree was lopped in breach of the TPO (matter no 50013 of 2010) being acts forbidden to be done under the EP&A Act. The tree contractor Mr Sua trading as Foxy Tree Services responsible for the cutting down and lopping of the trees the subject of the charges has also been charged with the same offences. The matters were heard together. It was agreed that apart from the Statement of Agreed Facts (the SOAF) the evidence in one matter would be evidence in the other. Separate judgments have been prepared for each Defendant.

2 The maximum penalty applicable for such offences is $1.1 million. As the Defendant has pleaded guilty the Prosecutor can be considered to have proved the essential elements of the offence. It is now necessary to sentence Ms Cheng. The offence is one of strict liability so that no mental element forms part of the elements of the offence.

Facts

3 The parties have agreed a SOAF as follows:

1. The Defendant is, and at the time of the commission of the offences was, the owner and occupier of the land being Lot 39 in DP30464, known as 27 Maple Crescent, Ermington…

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.

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Details

Case: [2010] NSWLEC 94
Decision Date: 10 June 2010

CaseChat Overview and Summary

Parramatta City Council has brought proceedings against Robyn Merie Cheng for offences under the Environmental Planning and Assessment Act 1979 (EP&A Act) arising from the removal of four trees on her property in Ermington. The Council alleged that Ms Cheng engaged a tree contractor, Mr Sua, to remove the trees without obtaining the requisite Council permit. Ms Cheng has pleaded guilty to the offences. The court was required to determine an appropriate sentence. The court considered the maximum penalty for the offences, the objective harmfulness of the defendant's actions, the reasons for the commission of the offence, and the state of mind of the offender. The court also had regard to the statutory scheme in which the offence provision appears, including the objectives of the EP&A Act. The court determined that the objective seriousness of the offence was at the lower end of the scale, the environmental harm was minor, and the defendant had genuine reasons for commissioning the offence due to significant emotional pressure. The court found that the defendant could not be convicted but dismissed the proceedings and ordered that the defendant pay the prosecutor's costs of $10,000. The exhibits were ordered to be returned.

Orders