Ryde City Council v Xu - [2003] NSWLEC 146

Land and Environment Court

of New South Wales

CITATION: Ryde City Council v Gavan Guo Xu [2003] NSWLEC 146

PARTIES:
PROSECUTOR
Ryde City Council
DEFENDANT
Gavan Guo Xu

FILE NUMBER(S): 50025 of 2003

CORAM: Cowdroy J

KEY ISSUES: Environmental Offences - Prosecution :- breach of tree preservation order - no development consent - guilty plea - sentencing procedure - penalty

LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999, s 3A, s 10, s 17, s 22, s 23A
Environmental Planning and Assessment Act 1979, s 76A, s 125, s 126
Fines Act 1996, s 6
Land and Environment Court Act 1979
Ryde Planning Scheme Ordinance

CASES CITED: Cameron v R (2002) 76 ALJR 382;
Cooper v Coffs Harbour City Council (1997) 97 LGERA 125;
Holroyd City Council v Skyton Developments Pty Ltd (2002) 119 LGERA 225;
R v Thomson; R v Houlton (2000) 49 NSWLR 383;
Ryan v The Queen (2001) 206 CLR 267;
Ryde City Council v Calleija (1998) 99 LGERA 360

DATES OF HEARING: 19/06/03

DATE OF JUDGMENT:
07/02/2003

LEGAL REPRESENTATIVES:

PROSECUTOR
Mr M. Hewett (Solicitor)
SOLICITORS
Pike Pike & Fenwick
DEFENDANT
Mr. T Hall (Barrister)
SOLICITORS
David Kam & Co.

JUDGMENT:

IN THE LAND AND

ENVIRONMENT COURT

OF NEW SOUTH WALES

50025 of 2003

Cowdroy J

2 July 2003

Ryde City Council

Prosecutor

Gavan Guo Xu

Defendant

Judgment

Facts

1 By summons filed 14 April 2003 the prosecutor (“the council”) seeks an order that the defendant answer a charge that he committed an offence against s 125 of the Environmental Planning and Assessment Act 1979 (“the EP&A Act”) in that the defendant cut down, topped, lopped, injured or wilfully destroyed a eucalypt tree (“the tree”) having a height greater than 5 metres without the consent of the council on or about 6 October 2002 at Gladesville.

2 Pursuant to cl 41 of the Ryde Planning Scheme Ordinance (“the RPSO”) a Tree Preservation Order (“the TPO”) was made by the council on 5 June 1979 which required development consent to be obtained inter alia for the lopping or cutting down of any tree over 3 metres within the Municipality of Ryde. The prosecutor alleges that the defendant breached the provisions of the TPO and that such action was contrary to s 76A of the EP&A Act which prohibits development to be carried out if an environmental planning instrument requires consent.

3 The defendant has pleaded guilty to the charge. Accordingly the Court is only required to determine the appropriate penalty.

The offence

4 Clause 41 of the RPSO authorises the council to adopt a tree preservation order, and relevantly provides:-

(1) Where it appears to the responsible authority that it is expedient for the purpose of securing amenity or of preserving existing amenities it may, for that purpose and by resolution, make an order (hereinafter referred to as a “tree preservation order”) and may, by like resolution, rescind or vary the order.

(2) A tree preservation order may prohibit the ringbarking, cutting…

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: [2003] NSWLEC 146
Decision Date: 07/02/2003

CaseChat Overview and Summary

In the case of Ryde City Council v Gavan Guo Xu, the defendant was charged with breaching a Tree Preservation Order by cutting down a eucalypt tree over 5 metres in height without consent from the council, in contravention of the Environmental Planning and Assessment Act 1979. The defendant pleaded guilty to the charge, and the court's role was to determine the appropriate penalty. The primary legal issue before the court was the determination of an appropriate penalty for the defendant's deliberate action in damaging a tree on a public reserve.

The court considered various mitigating factors, including the defendant's guilty plea and good character, in determining the penalty. While acknowledging that the offence was deliberate and occurred on a public reserve, the court also recognised that only one tree was damaged and that it was regenerating. The court found that the appropriate penalty should reflect the seriousness of the breach, the deliberate nature of the defendant's conduct, and the need for general deterrence. The court imposed a penalty of $7,500, taking into account the early guilty plea, and did not order the defendant to plant new trees and vegetation.

In summary, the court convicted the defendant as charged, ordered the defendant to pay a penalty of $7,500, and to pay the prosecutor's costs. The court did not order the defendant to plant new trees and vegetation, as it considered the penalty sufficient to achieve the aims of deterrence, denunciation, and acknowledging the harm to the environment and community.

Orders