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 the trees from the subject property. Mr Compagnon quoted the defendant a figure of $350 to complete the work, an amount which has been paid. Mr Compagnon at no stage sighted a consent for the removal of the trees on the subject property, and in fact the defendant did not have any such consent.

7. On or about 9 February 1997 Mr Compagnon began the work for which he was employed. At approximately 12.30pm on that date, in response to a phone call from a nearby resident, Mr James McClymont of the Council went to the subject property, identified himself and inquired of Mr Compagnon as to whether permission from Council for the clearing of trees had been obtained. Mr Compagnon informed Mr McClymont that the approval was with his Aboss@ and he then telephoned the defendant to inquire about such approval. The defendant informed Mr Compagnon that the relevant documentation was unable to be obtained on that day. Mr Compagnon then ceased work and left the subject property.

8. Subsequently, both the defendant and Mr Compagnon were charged with the present offences. There is conflicting evidence on several important facts. I now propose to examine the evidence lead by the prosecutor and the defence on these questions.

Issue 1: Who Removed the Trees on the Subject Property?

9. Mr Compagnon admits to removing five of the fifteen trees, being those numbered 5-10 as referred to in the Affidavit of Mr S B Gatenby. Those trees were in the middle of the subject property. It is submitted by the prosecution that the defendant alone caused to be cut down the remaining trees the subject of this charge. The prosecutor relies on the evidence of Mr AJ Hoogvliet, a local resident with a mooring opposite the subject property, and whose wife apparently was the Council=s informant of the unlawful tree removal on the subject property. Mr Hoogvliet says that he saw the defendant with a chainsaw on the subject property at about 6pm on 9 February attempting to remove a tree on the foreshore. After exchanging words with the defendant, Mr Hoogvliet departed and noticed that either two or three medium sized trees on the foreshore of the subject property remained. Upon viewing the same area the following morning, all those remaining trees had been removed.

10. The defendant, on the other hand, contends that he personally removed one tree only, being the tree which Mr Hoogvliet saw him removing and which was already partially cut by a chain-saw when he returned to the property. He states that this tree presented a danger to anyone using the subject property. The defendant says that this was the extent of work done with the chainsaw which he brought onto the subject property after the departure of Mr Compagnon.

11. There is thus conflicting evidence, which presents the Court with an obvious difficulty. The defence did not require Mr Hoogvliet for cross-examination on his affidavit. This brings into relevance the rule in Browne v Dunne (1894) 6 R 67 (HL). That rule has been formulated by Hunt J in Allied Pastoral Holdings Pty Ltd v Commissioner of Taxation [1983] 1 NSWLR 1 in the following terms (at 16):

AIt has in my experience always been a rule of professional practice that, unless notice has already clearly been given of the cross-examiner=s intention to rely upon such matters, it is necessary to put to an opponent=s witness in cross-examination the nature of the case upon which it is proposed to rely in contradiction of his evidence@

12. Although the Court is not obliged to accept evidence not subject to cross-examination, the dispensing with of the right to cross-examine a witness Amay be a very good reason for accepting that witness=s evidence@ (Australian edition of Cross on Evidence, Vol 1, Para 17-460). Circumstances in which that evidence is not likely to be accepted will include occasions when the evidence is Aincredible or unconvincing, or if it was contradicted by other evidence which appeared worthy of credence@ (Bulstrode v Trimble [1970] VR 840 at 849). In this matter I do not find Mr Hoogvliet=s evidence to be either incredible or unconvincing. Rather I find it most plausible, and consistent with the evidence of Mr Compagnon. I do not find that the contradictory evidence offered by the defendant is sufficiently credible to undermine the application of the rule of Browne v Dunne, and hence I accept the evidence of Mr Hoogvliet.

Issue 2: The Defendant=s Advice from the Council

13. The defendant recalls a conversation with a council officer on 3 February 1997. He states that that officer informed him that Ait wouldn=t be a problem@ to cut down trees infested with white ants, and that it was acceptable to cut down trees under a height of 3.5 metres. The officers in charge of answering telephone inquires for the Council, Ms Lynette Cleary and Ms Tracey Smith, state that they do not recall the conversation to which the defendant refers. In this way the evidence of the defendant is direct while the evidence of these two officers is indirect. However, these two officers, the former having worked in the capacity of answering development and building enquires for the Council for approximately 17-18 years, say that they would not give advice similar or the same as that referred to by the defendant. These two council officers were not required by the defendant for cross-examination. I consider that this is another instance of where the rule of Browne v Dunne (1894) 6 R 67 (HL) applies. The e

vidence of the council officers is not fanciful but rather is most plausible. The corollary of finding the evidence of Ms Cleary and Ms Smith to be truthful is that the evidence of the defendant on this issue is either mistaken or untruthful. In any event, all of the trees the subject of this charge were in excess of 3.5 metres in height.

14. The defendant further relies, in order to assert that he either had or at least believed he had a de facto approval from the Council for the removal of trees from the subject property, on advice contained in the Council=s Tree Preservation Order. That advice, inter alia, states that the Aremoval of dead or dangerous trees requires no approval from council@. However, it is informative to note the important qualification which appears in the advice just below this statement. It states that the onus is on the property owner to make certain that the particular trees which he/she wishes to remove are in fact dangerous or dead. Moreover, cl 41(6) of the Ryde Planning Scheme Ordinance places the onus on the defendant to prove that the tree or trees was or were dying or dead or had become dangerous. It is clear that the defendant made no attempt to discharge this onus, apart from one tree which is not the subject of this prosecution.

Issue 3: The Number and Health of the Trees removed from the Subject Property

15. The first of these matters can be readily dealt with. The defendant and Mr Andrew Foristal, a neighbour of the defendant, on whose affidavit the defendant relies, claim that trees 2, 3 and 4 as identified in Mr Gatenby=s affidavit did not exist as at 9 February 1997. Mr Gatenby, a horticulturalist, on whose evidence the Council relies, visited the subject property approximately three weeks after the removal of the trees. Mr Gatenby contends that trees 2, 3 and 4 existed and were removed. Due to his expertise in the area, the fact that his inspection of the property occurred in a professional context shortly after the event and the fact that he saw the stumps of the trees, I favour the evidence of Mr Gatenby over that of Mr Foristal and the defendant.

16. The defendant states that he thought all of the trees removed from the subject property were infested with white ants. In this view he is somewhat supported by the affidavit of Mr J F Williamson, another neighbour, who also thought that many of the trees on the subject property were infested with white ants.

17. Two experts in this field were called. Mr Gatenby, on behalf of the prosecutor, and Mr S A Pittendrigh, a landscape architect, urban horticulturalist and arboriculturist, on behalf of the defendant. The evidence of Mr Pittendrigh, however, does not address the issue of the health of the trees at the time of their removal. This is probably resultant from the considerable delay between the removal of the trees and Mr Pittendrigh=s visit to the subject property. I thus prefer the evidence of Mr Gatenby on the question of the health of the trees to the evidence of the defendant and Mr Williamson.

18. Mr Gatenby assessed the health of the various trees which were removed from the defendant=s property. The tree numbers referred to below correspond with those described in the affidavits of Mr Gatenby and Miss Wendy Miller, the Council=s tree preservation officer. Tree number 1, a Metrosideros excelsa (New Zealand Christmas bush), was approximately 5 metres in height, 35 years old, and was a Ahealthy specimen@. Tree number 2, a Morus sp (Mulberry), was approximately 5 metres in height, and had Asome decay longicorn borer damage throughout the main trunks@. It is possible that this tree could have nevertheless survived. Tree number 3, a Pittosporum undulatum (Native Daphne), was approximately 8 metres in height and in Areasonable health@. Tree number 4, a Glochidion ferdinandi (Cheese Tree), was approximately 7 metres in height, 80 years old, and in Areasonable health@. This tree Awas extremely significant@ to this location. Tree number 5, an Angophora floribunda (Rough barked apple), was approximately 10

metres in height, and had suffered Aextensive decay and some borer damage@ in its centre. Tree number 6, a Glochidion ferdinandi (Cheese Tree), was approximately 9 metres in height, 100 years old, and in Aexcellent health@. It was Aendemic@ to the location. Tree number 7, an Angophora floribunda (Rough barked apple), was approximately 8 metres tall and in Apoor to reasonable health@. Tree number 8, a Eucalyptus pilularis (Blackbutt), was approximately 15 metres tall and in Aaverage health@. Tree number 10, a Eucalyptus pilularis (Blackbutt), was approximately 15 metres in height and was a Ahealthy specimen with minor termite damage@ which was Anormal for a tree of this size, age and...location@. Tree number 11 refers to a group of four Casuarina sp=s, the tallest of which was 12 metres. They were in Agood health@ and provided Avaluable landscape qualities@. Tree number 12, a Pittosporum undulatum (Native Daphne), was approximately 5 metres in height and in Avery good health@. Tree number 13, a Glochidion ferd

inandi (Cheese Tree), was approximately 5 metres in height and in Aexcellent health@.

19. It is clear to me from Mr Gatenby=s assessment that the trees removed from the subject property were predominantly healthy. It is apparent that either the defendant had no basis for any belief that most of the trees were dying or dead or dangerous, or that he made no reasonable effort to ascertain the health of the trees prior to their removal.

Issue 4: The Conversation Between the Defendant and Mr Compagnon

20. Mr Compagnon says that the defendant twice told him that he had council approval for the removal of the trees. In paragraph 13 of his affidavit Mr Compagnon recalls the defendant replying >yes= to his question on or about 5 February 1997 of >do you have council approval=. In paragraph 18 of his affidavit Mr Compagnon states that in the course of the telephone conversation of 9 February 1997 the defendant suggested that he had council approval and that it was in his office. Mr Compagnon claims that the defendant said that he could not obtain the approval because his foreman had the key to his office. The defendant, on the other hand, claims that he did not mislead Mr Compagnon in the telephone conversation which took place between them after Mr McClymont attended upon the subject property. The defendant submits that he merely informed Mr Compagnon that his diary records of the Council=s advice were in his truck at Blacktown, and therefore unobtainable until the following day.

Submissions of the Defendant

21. Mr Maston submits that some of the trees on the subject property would have to have been removed in the course of erecting the dwelling on that property, for which approval has been obtained. Mr Pittendrigh in his evidence suggests that trees 1 to 9 inclusive would have been removed for that purpose. Although cited by Mr Maston on another aspect, Cooper v Coffs Harbour City Council (Court of Criminal Appeal, 2 December 1997, unreported) is relevant to this issue. In that case the Court of Criminal Appeal held that (at 27):

AThe removal of the trees on the site without the Council=s approval was a serious breach of the conditions upon which consent had been given to the development by the Council. This is so even though approval would have been given for the removal of the vast majority of the trees on the site in order that the development could proceed.@

It follows that despite the probability of Council approval being given in due course for the removal of those trees, their removal without such consent remains a serious offence.

22. As to those trees which the defendant is alleged to have personally removed, Mr Maston submits that they do not fall within the ambit of the charge of >causing to be cut down= as stated in the summons. It is plain, however, that if I hold that the defendant personally cut down particular trees on the subject property, it follows that the defendant also caused those trees to be cut down. If an individual cuts down a tree, he/she is the most direct cause of that tree=s demise and, hence, causes that tree to be cut down.

23. Mr Maston further submits that the defendant=s plea of guilty, the fact that he has not attempted to avoid responsibility for the commission of the offence, and the fact that he has exhibited contrition for his actions all should go toward a lesser penalty in this matter. Moreover, the defendant=s character is attested to by Mr Siegfried Hanisch, a businessman and acquaintance of the defendant. The defendant=s antecedents are beyond reproach. Mr Maston further submits that responsibility for the removal of the trees should be shared with Mr Compagnon, who was actually responsible for cutting down at least some of the trees.

24. Mr Maston submits that the remediation agreed to by the defendant should prove a sufficient penalty for the offence. Mr Pittendrigh=s evidence suggests that the defendant=s plantings will have a Asignificant visual impact@ on the subject property within five years. Section 126 of the Act permits an order of remediation in addition to or in substitution for a fine in cases such as this. Section 126(3) states:

AWhere 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)@.

The remediation plan, along with the payment of the prosecutor=s costs in the matter is a sufficient penalty, Mr Maston suggests. He further submits that s 126(3) does not require a guilty verdict to be recorded when imposing a remediation order as penalty for a breach of s 125 of the Act.

Submissions of the Prosecutor

25. Mr Robertson, on the other hand, submits that there is an Ainherent unlikelihood@ that the defendant believed he had Council approval for the removal of the trees. He further submits that the defendant made no attempt to distinguish between those trees which he believed were infested with white ants and those that were healthy. The instruction of the defendant to Mr Compagnon was to clear fell the land. Mr Robertson submits that where it is in conflict with the other evidence presented in this case, the evidence of the defendant is to be disbelieved.

Conclusions

26. For the reasons discussed undder the various issues of fact, it is approprite that I state the following findings of fact:

(1) The defendant personally removed several of the trees from the subject property, and this occurred after Mr McClymont had informed him through Mr Compagnon that the removal of the trees was unlawful. Moreover, some of those trees would not have been required to be removed for the purposes of the development of the dwelling on the subject property.

(2) The defendant was under no misapprehension regarding the lawfulness of the removal of the trees at any stage. A corollary of this finding is that the defendant attempted to mislead Mr Compagnon into continuing the unlawful removal of trees.

(3) I accept the evidence of Mr Gatenby regarding the health and number of the trees which existed on the subject property.

(4) It follows that the defendant caused each of the trees particularised in the summons to be cut down and that none of those trees were dying or dead or had become dangerous.

27. As to the various submissions made, I have come to the following conclusions:

(1) I note, but in the end result am not required to decide, Mr Maston=s submission that the imposition of an order to remediate the property unaccompanied by a financial penalty, when made under s 126(3) of the Act, enables the court to record no conviction against the defendant. I am not required to decide this question for the reason that the circumstances call for the imposition of a monetary penalty as well as an order for remediation.

(2) Mr Maston submits that there is no cause to be served by the punishment of the defendant, because the likelihood of recidivism is low. He further submits that each case must be dealt with according to its merits and the Court should not take undue account of the desire to provide a general deterrent against breaches of environmental planning laws. In Cooper v Coffs Harbour City Council, Howie AJ held that Athere must be an element of general deterrence in dealing with significant breaches of the planning laws@ (at 28). There is undoubtedly a twofold purpose in punishing offenders who come before this Court, and one of those purposes is to deter offences against environmental planning laws in a general sense. It is of course important to have regard firstly to the individual facts of each case which comes before the court, but that does not militate against the principle of general deterrence being taken into proper account when deciding the appropriate penalty.

(3) The defendant has received due credit for his plea of guilty as required by s 439 of the Crimes Act 1900, his antecedents and his erstwhile demonstrations of good character.

(4) I accept the remediation plan agreed to by the parties and note the agreement on costs.

(5) I accept Mr Maston=s submission that the defendant should have 6 months to pay his fine and the order for costs, consistently with the judgment of Talbot J in both Power v Coopers Construction Pty Ltd (Talbot J, 8 November 1996, unreported) and Power v Cooper (Talbot J, 8 November 1996, unreported), and with the Court of Criminal Appeal in Cooper v Coffs Harbour City Council. I note that Mr Robertson made no submissions on this issue.

28. The unlawful removal of 15 mature trees on an allotment of land on the foreshore of the Parramatta River and which would otherwise be seen both from the river and from a nearby public reserve, must be regarded as a serious breach of the Act. I accept that there was a likelihood that consent may have been granted for the removal of five of those trees to allow for the erection of the proposed dwelling house and its associated driveway. But the significant mature trees which existed towards the foreshore were unlikely to have been the subject of any consent for removal. The maximum penalty for an offence against s 125 of the Act is 100 penalty units (s 126(1), which is $110,000, although at the time of the commission of the offence it was $100,000. The penalties imposed by this Court for offences such as this have varied considerably and are largely dependant on the particular circumstances of the offence. Those penalties generally range from no financial penalty to $15,000. A common fine is between $10,000

and $15,000. Talbot J in Power v Coopers Construction Pty Ltd and Power v Cooper effectively fined the defendant in those proceedings $15,000, although the Court of Criminal Appeal in Cooper v Coffs Harbour City Council reduced that fine to $5000. It is instructive to note that the latter court in reducing the penalty did so because of Athe less serious nature of the charge@ which was before it (at 28). It said nothing of the appropriateness of the penalty issued by Talbot J on the facts before him.

Orders

Accordingly, I make the following orders:

(1) The defendant is convicted of the offence as charged.

(2) The defendant is fined a penalty in the sum of $15,000.

(3) Pursuant to s 126(3) of the Environmental Planning and Assessment Act 1979 the defendant plant the trees on number 53A Bayview Street, Tennyson and retain the existing jacaranda and ficus species indicated on the landscape plan prepared by Pittendrigh Shinkfield & Bruce dated 9 February 1998 (reference PSD97022 SK01/C) and maintain those trees to mature growth for a period of five years from the date of this order.

(4) The defendant pay the prosecutor=s costs in the sum of $12,000.

(5) The penalty and costs in orders (2) and (4) must be paid within six (6) months.

(5) The exhibits, other than Exhibit 1, may be returned.