Port Stephens Council v Padmos, J H

[2003] NSWLEC 447

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Land and Environment Court

of New South Wales

CITATION:

Port Stephens Council v Padmos, J H and Anor. [2003] NSWLEC 447

PARTIES:

PROSECUTOR:
Port Stephens Council

DEFENDANTS:
Padmos, J H; Rinmara Pty Limited

FILE NUMBER(S):

50118; 50119 of 2002

CORAM:

Bignold J

KEY ISSUES:

Prosecution :- – Breach of Tree Preservation Order by pruning – Mitigating Factors

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979, s 125(1)

CASES CITED:

DATES OF HEARING:

26/06/2003

EX TEMPORE
JUDGMENT DATE :

06/26/2003

LEGAL REPRESENTATIVES:

PROSECUTOR:
Mr J Copnnors, Barrister

SOLICITORS
Harris Wheeler

DEFENDANTS:
Mr J Robson, Barrister

SOLICITORS
C L Purcell

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

BIGNOLD J

26 June 2003

50118 of 2002 PORT STEPHENS COUNCIL v JOHN HENRY PADMOS

50119 of 2002 PORT STEPHENS COUNCIL v RINMARA PTY LIMITED

JUDGMENT

1. These are two prosecutions which, by consent, were heard together charging each Defendant with the same or similar offence, namely, a contravention of a Tree Preservation Order in force under the Port Stephens Local Environmental Plan 2000 in respect of the action of pruning without development consent a Moreton Bay Fig Tree situated on land fronting the Pacific Highway at Heather Brae in the vicinity of Raymond Terrace. Such action not only involved a breach of the Tree Preservation Order in force by virtue of the provisions of cl 50 of the Local Environmental Plan but in turn involved an offence against Environmental Planning and Assessment Act 1979, s 125(1).

2. The offence charged against the corporate Defendant, Rinmara Pty Limited, is that it did relevantly cause to be pruned the Moreton Bay Fig tree situated on land owned by that Defendant.

3. The charge brought against the individual, John Henry Padmos, is that he did prune the said tree without the requisite development consent. Mr Padmos, the Defendant, is a co-director and shareholder with his brother, Mr Peter Padmos, of the Defendant company which is a family company and the brothers and their spouses have conducted, at adjoining or adjacent premises, a family boat selling business for some 26 years.

4. Both Defendants entered a plea of guilty to each of the charges brought against them at the first opportunity and they have co-operated with the Prosecutor in the presentation of the case today by agreeing to the Statement of Facts prepared by the Prosecutor which was tendered as Exhibit 4. That evidence was supplemented by some passages in the Affidavits sworn by the Council servants who had either investigated the incident or considered applications for approval in respect of the subject land and in respect of the subject tree on earlier occasions. The offences were committed on or about 19 February 2002. The passage from the Affidavit of Mr Wink refers to a conversation that he had with Mr Peter Padmos and his wife in June 2001 and the evidence relied on in the Affidavit of the other Council servant, Mr McElroy, is referred to in par 15 of his Affidavit which deposes to a conversation that he had with Mr John Padmos, the Defendant, on the day that the offence was committed (Mr McElroy having attended on that occasion the adjoining premises (being a BP Service Station) and from that vantage point having noted the activity with the tree pruning). In that conversation recorded in par 15 of his Affidavit, upon which he was not cross-examined and which was not rebutted by the evidence given by the Defendant, Mr Padmos, the latter had stated that he was carrying out the work at the request of Peter Padmos, that is his brother, Director and Shareholder of the Defendant Corporation.

5. At the time of Mr McElroy’s conversation, the pruning work had ceased and Mr Padmos was engaged in cleaning up the felled branches. The Agreed Statement of Facts states that the tree pruned was a most significant tree from both an historical and amenity basis of assessment. It had a life expectancy of 40 years or more with an acceptable level of risk. Par 15 of the Agreed Statement of Facts says as a result of the pruning, the amenity of the Fig tree has been significantly compromised, physically, visually and historically. I have had the benefit of photographic evidence of the tree in its state before the unlawful pruning activity was undertaken and soon thereafter and, indeed, a current photograph of the tree. I have also had the benefit of expert evidence from both Mr McElroy and from Mr Peter Castor, a consultant Arborist retained by the Council. That evidence indicates that the tree pruning activity removed up to (and this is only an approximate estimation) 25 per cent of the canopy of the tree. It should be noted in that ..(not transcribable).. that there is an exemption to the operation of the Tree Preservation Order provided in the terms of that order itself in item or par 13 exempting from the terms of the order the following and I quote:

Regular maintenance of trees and shrubs where less than either twelve months growth or ten per cent of the foliage is pruned in accordance with the Australian Standard for the pruning of amenity trees AS4373 of 1996

6. I should add that the Tree Preservation Order in its terms proscribes, except with the consent of the Council, the following activities in relation to trees to which the order applies, namely, ringbarking, cutting down, topping, lopping, pruning, removing, injuring or wilful destruction of any tree. Having regard to the spectrum of activities governed by the proscriptions it would be reasonable to regard pruning as being a more moderate form of activity within the overall spectrum but one does not want to engage in a semantics discussion of that matter. The offences charged of course, as I have noted, are pruning without the requisite development consent.

7. There has been some dispute in the evidence concerning the motivation of the Defendants in pruning the trees. That dispute in the evidence arose after evidence in mitigation was tendered in the defence case in the form of the Affidavit sworn by the Defendant John Henry Padmos on 23 June 2003 in which he deposes to the circumstances in which he came to undertake the work, his state of knowledge of the operation of the Council’s Tree Preservation Order at the time, and his awareness of trees like Camphor Laurel. He removed two of those at the same time that he pruned the Moreton Bay Fig Tree and up to ten per cent of the latter were exempted from the Council’s Tree Preservation Order and the need for consent and that he thought that he had not removed approximately 25 per cent of the tree canopy but accepted that he had done, ultimately, more than the ten per cent falling within the express exemption.

8. There had been applications made to the Council for the removal of the tree which had been refused and an application for the development of the site which would have required the removal of the tree which also was refused, those activities occurring prior to the commission of the offence in the year or so preceding it. I am satisfied on the evidence that Mr Padmos had completed the intended pruning work on the tree at the time that Mr McElroy arrived at the premises on 19 February and there is no suggestion in the evidence that the Defendants were planning or intending to do more in relation to that tree than that which had already been undertaken by Mr Padmos at the time of Mr McElroy’s arrival. The case, accordingly, is not one of the wrongdoer being arrested prior to the completion of the wrong.

9. The evidence also establishes that, though compromised in the sense explained, the significantly pruned tree is not at risk either of survival, regrowth or stability.

10. On behalf of the Prosecutor, it has been put that Mr Castor’s evidence of his evaluation of the value of the tree and/or its value before the pruning activity had been undertaken and its value thereafter as detailed in s 3 of his report, Annexure B to his Affidavit of 4 March 2003, attests to the significance of the particular offence in that evidence using various methods of the valuation of trees both in terms of their value to the individual and their value to the community. Mr Castor has given various estimates of the value of the tree in its pre pruned state and its post pruned state and those sums of money indicate that in his opinion there is a significant value in the tree, especially to the community. It should be noted that the tree is prominently exposed to the community and passing traffic on the Pacific Highway.

11. The offence is one that is a significant offence within the totality of the spectrum of offences provided for in the Environmental Planning and Assessment Act, s125. Those offences range very widely involving non-compliances with provisions of the Act, directions given by a Minister or other public authority and cover an extraordinary range of activities relevantly proscribed perhaps because of the extraordinary range of activities proscribed by the offence creating s 125 that the penalty provision provided in s 126 provides for a very significant maximum penalty not exceeding 10,000 penalty units which equates to $1.1 million as the proscribed maximum penalty for a spectrum of offences which is extraordinarily wide-ranging and disparate.

12. The Court has, on a number of occasions throughout its life, heard charges of offences against Tree Preservation Orders and this particular offence, as I have earlier noted, is of the offence of contravening the Tree Preservation Order to the extent that pruning was undertaken without obtaining the requisite development consent. It obviously is a less serious charge than one of wilfully damaging the tree or wilfully destroying the tree. As I have said, the evidence is clear that the tree will survive and will regrow notwithstanding the significant loss of canopy.

13. I mentioned earlier there has been some dispute in the evidence concerning the precise motivation of the Defendants. Mr Padmos in his Affidavit indicated why he was removing the relevant limbs or scaffolds of the tree, namely, because they were coming into contact with the electrically wired perimeter fence at the property and the adjoining property and because of the contact of some of the limbs with the roof of the neighbouring BP Service Station building. I accept that evidence but I also would find that the work was also done as requested by his brother and fellow Director, Mr Peter Padmos (and I here refer to the unchallenged record of conversation in par 15 of Mr McElroy’s Affidavit). There is no doubt that Mr Peter Padmos (who in more recent years with his wife had been more engaged on a day to day basis than the Defendant Mr John Padmos in the conduct of the boat building business) has on a number of occasions expressed the view that the tree creates problems by its droppings etc onto expensive boat stock kept at the premises and there is no doubt that the company owning the land, the family business conducting the boat building business, would prefer the tree not to be there for the purpose of conducting their business. However, there is no foundation in the evidence to suggest that the tree is in jeopardy of any future misconduct on the part of either of the Defendants and I am entirely satisfied that Mr John Padmos in particular is fully acquainted with the legal protection that the Tree Preservation Order accords to the tree and also accepts that the tree is a significant tree environmentally and amenity-wise and that part of the lie of the ground in conducting the business is to co-exist with the tree.

14. A number of testimonials were provided on behalf of Mr John Padmos from local clergy in the area, all attesting to the very good reputation in the local community of Mr Padmos and his family. The testimonial evidence satisfies me that Mr Padmos is a conscientious, hard working, diligent, helpful and significant member of the local community whose character and good reputation is widely held.

15. The question for the ultimate decision is one of penalty and in that respect I note that no submission has been put on behalf of the Defendants that this is a case which would justify an unconditional or conditional discharge pursuant to the Crimes Sentencing Procedure Act, s10. In my view, the offence committed and the circumstances of its commission are such that it is not appropriate to grant relief under that section of the Act.

16. Having regard to all of the facts, relevantly collected in the Statement of Agreed Facts and augmented by the additional evidence that was relied upon by the Prosecutor which as I say has not been rebutted, I am satisfied that in each case it is appropriate to record a conviction against each Defendant.

17. I am satisfied, and no submission was put to the contrary, that it is right to apply in this case the sentencing principle of totality of sentence and in so applying that principle it is appropriate to regard the corporate Defendant and the human Defendant as being integrally related and the activity in violation of the law having been committed by each of them in an integrally related fashion in respect of which equal blame in terms of culpability must attach.

18. Having regard to the mitigating factors that I have earlier mentioned, to wit: the pleas of guilty at the earliest opportunity; undoubted expressions of contrition for the act; my confidence that there will be no repeat offence, the fact that both the Defendants have had no prior convictions; that the Defendant, Mr Padmos, is a person of excellent fame and character in the local community and the fact that the Defendants have co-operated with the prosecution including co-operation in the way in which the case has been presented to the Court today, I am of the opinion that a significant overall reduction in penalty should be accorded. The maximum penalty at $1.1 million that I mentioned is, of course, prescribed for the complex spectrum of unlawful acts under the Environmental Planning and Assessment Act and the offences against Tree Preservation Orders which range from destruction of a multitude of trees to the pruning of one tree such as this present case involves themselves have created a pattern of sentence such as, in the present case, to require the imposition of a penalty on each of the Defendants, as it were, with shared culpability applying the totality principle and applying an even-handed approach to offences under the Environmental Planning Act, s 125 discreetly dealing with tree preservation matters.

19. In my judgment, having regard to all of these matters, including giving the Defendants the benefit of an overall sentence reduction in the order of 40 per cent, leads me to conclude that in all of the circumstances of the present case, a total penalty of $20,000 is the appropriate penalty to impose which, for the reasons I have given, should be distributed between the Defendants equally.

20. For all of the forgoing reasons, therefore, I make the following orders:-

1. In each case the Defendant is convicted of the offence as charged;

2. In each case a penalty of $10,000 is imposed in respect of the conviction;

3. In each case, the Defendant is ordered to pay the Prosecutor’s costs in the sum agreed or, failing agreement, in accordance with the Land and Environment Court Act, s 52; and

4. The exhibits may be returned.

ROBSON: I make an application or ask your Honour to order the fines be paid within eight weeks. That’s not opposed by the Prosecutor.

PROSECUTOR: That’s so your Honour. It’s not opposed.

HIS HONOUR: The fine, Mr Robson, is required to be paid in accordance with the Fines Act, S 7, which does say 28 days which is four weeks and I have held that I don’t have power to extend it. However, I should note that time to pay the fine of eight weeks has been asked for and is not opposed by the Prosecutor. I can note the orders to that effect and, presumably, that will stay, not as a matter of law but as a matter of practicality in the enforcement action.