Ryde City Council v Calleija - [1998] NSWLEC 115

Land and Environment Court

of New South Wales

CITATION: Ryde City Council v Calleija [1998] NSWLEC 115

PARTIES:
PROSECUTOR
Ryde City Council
DEFENDANT
Bruce Stephen Calleija

FILE NUMBER(S): 50081 of 1997

CORAM: Lloyd J

KEY ISSUES: :-

LEGISLATION CITED:

CASES CITED: Allied Pastoral Holdings Pty Ltd v Commissioner of Taxation [1983] 1 NSWLR;
Browne v Dunne (1894) 6 R 67 (HL);
Hunt J in Allied Pastoral Holdings Pty Ltd v Commissioner of Taxation [1983] 1 NSWLR 1 ;
Cooper v Coffs Harbour City Council (Court of Criminal Appeal, 2 December 1997, unreported;
Power v Coopers Construction Pty Ltd (Talbot J, 8 November 1996, unreported);
Power v Cooper (Talbot J, 8 November 1996, unreported)

DATES OF HEARING: 02/03/98, 03/03/98

DATE OF JUDGMENT:
03/16/1998

LEGAL REPRESENTATIVES:

PROSECUTOR
T F Robertson
Hill Thompson Sullivan
DEFENDANT
J B Maston
C P White & Sons

JUDGMENT:

1. This proceeding relates to a plea of guilty to a summons alleging the unlawful removal of several trees on a property known as Lot 2 in Deposited Plan 861810, and situated at 53A Bayview Street Gladesville (Athe subject property@), in contravention of a tree preservation order made under the Ryde Planning Scheme Ordinance, cl 41. This in turn constitutes an offence under the Environmental Planning and Assessment Act 1979 (Athe Act@) s 125. The prosecutor is Ryde City Council (Athe Council@) and the defendant is Bruce Stephen Calleija (Athe defendant@). The defendant and his wife Mrs N R Calleija were at the material times the registered proprietors of the subject property.

2. The summons discloses the following cause of action:

AY the defendant [on or about 9 February 1997] did cause to be cut down, lopped, removed or wilfully destroyed trees having a height greater than three (3) metres without the written consent of Ryde City Council in contravention of a Tree Preservation Order made by the Council of the City (then Municipality) of Ryde on 5 June 1979 pursuant to Clause 41 of the Ryde Planning Scheme Ordinance@.

3. The Tree Preservation Order made by the Council requires the Council=s consent to be obtained for the removal of any tree over 3 metres in height. As I have said, the defendant has pleaded guilty to the offence disclosed and therefore the sole issue before me is that of penalty.

4. The particulars of the trees removed or wilfully destroyed are as follows:

Metrosideros excelsa (New Zealand Christmas bush)

Morus sp (Mulberry)

2 Pittosporum undulatum (Native Daphne)

3 Glochidion ferdinandi (Cheese tree)

2 Angophora floribunda (Rough barked apple)

2 Eucalyptus pilularis (Blackbutt)

4 Casuarina sp.

5. Mr T F Robertson appeared for the Council and Mr J B Maston appeared for the defendant.

The Facts

6. The facts of this matter, in so far as they are not in dispute, are these. In about January 1997 the defendant engaged the services of Mr J J Compagnon, who is the principal of a business known as James Total Garden Maintenance, in order for Mr Compagnon to remove all 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.

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Details

Case: [1998] NSWLEC 115
Decision Date: 03/16/1998

CaseChat Overview and Summary

The case Ryde City Council v Calleija was heard in the Land and Environment Court of New South Wales. The case was brought by the Ryde City Council against Bruce Stephen Calleija for the unlawful removal of several trees on a property at 53A Bayview Street, Gladesville, in contravention of a Tree Preservation Order made under the Ryde Planning Scheme Ordinance. Calleija pleaded guilty to the offence, and the court's sole issue was to determine the penalty. The council's case was that Calleija had removed fifteen trees without the necessary consent from the council, while Calleija argued that he only removed one tree, which he claimed was dangerous.

The court considered the evidence from both parties and applied the rule in Browne v Dunne, which allows for the acceptance of evidence not subject to cross-examination if it is plausible and consistent with other evidence. The court accepted the council's evidence that Calleija had removed several trees, despite his claims to the contrary. The court found that Calleija had not obtained the necessary consent from the council for the removal of the trees, and that the trees were predominantly healthy. The court also rejected Calleija's argument that some of the trees would have been removed as part of the development of a dwelling on the property, as the court found that the removal of the trees without consent was a serious breach of the Environmental Planning and Assessment Act 1979.

The court concluded that the unlawful removal of the trees was a serious breach of the Act, and that the penalty should reflect the seriousness of the offence. The court ordered Calleija to pay a fine of $15,000, plant new trees and maintain them to a mature growth, and pay the prosecutor's costs of $12,000 within six months. The court noted that the penalty for such offences can vary widely depending on the circumstances of the case, but generally ranges from no financial penalty to $15,000. The court also noted that the purpose of punishing offenders is not only to address individual cases but also to deter future breaches of environmental planning laws.

Orders