Thomson v Martin [1991] NSWLEC 31 (7 March 1991)

[1991] NSWLEC 31

Land and Environment Court

of New South Wales

CITATION:	Thomson v Martin [1991] NSWLEC 31 (7 March 1991) [1991] NSWLEC 3
PARTIES:	Thomson v Martin
FILE NUMBER(S):	50106 of 1990
CORAM:	Bignold J
KEY ISSUES:	:-
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979 Local Government Act 1919
CASES CITED:
DATES OF HEARING:
DATE OF JUDGMENT:	03/07/1991
LEGAL REPRESENTATIVES:

JUDGMENT:

Bignold J.: On 30th November, 1990 I found the Defendant guilty of an offence against s.125 of the Environmental Planning and Assessment Act 1979 involving a contravention of a tree preservation order in force under that Act.

The Defendant had been charged with cutting down a spotted gum tree situate at property known as No. 14A Prince Alfred Parade, Newport without the consent of the Warringah Shire Council required under the tree preservation order.

At his trial the Defendant had sought to raise two defences (i) the statutory defence provided by the tree preservation order that the tree cut down was dead or dying and (ii) the common law basis of exculpation of "honest and reasonable mistake" (that the Council had granted the requisite consent for the cutting down of the tree).

Both these defences failed for the reasons stated in my judgment of 30th November, 1990.

On the hearing on the question of penalty Counsel for the Defendant has raised a number of matters which he submits mitigate the proven offence and should be reflected in the penalty to be imposed in respect of any conviction for that offence. Except for the fact that the Defendant is likely to experience financial difficulty in paying any fine because his earnings from his tree lopping business have been small during the past 3 years because of wet weather, all of the matters raised by the Defendant's submission are adequately accommodated by the fundamental sentencing principle that the sentence should reflect the nature of the offence, the circumstances of its commission and the Defendant's criminal responsibility in committing the offence.

However one matter raised in mitigation of the offence that should be particularly mentioned is the fact that the Defendant was a tree lopping contractor who had been engaged to cut down a number of trees growing on the aforesaid property, including the subject tree.

In this respect it is to be noted that the owner of that property had also been charged and prosecuted in respect of the cutting down of the aforesaid tree and that prosecution which was part heard had now been discontinued by the Prosecutor.

I do no think the fact that the Defendant was a contractor hired to cut down trees on private property mitigates the particular offence. It may conceivably have some bearing on the question of penalty in a case where the owner of the property is also convicted of the charge on the basis that the removal of the tree might be much more valuable to the owner (eg. by enhanced property value) than to the tree lopping contractor (who simply receives a standard fee for doing the job). However that is not the present case because the prosecution against the property owner has been discontinued by the Prosecutor.

It was not submitted (and in my opinion it could not properly have been submitted) that because the Defendant committed the offence as a contractor the offence so committed ought to be considered less seriously than if it had been committed by, somebody else, for example, the person who hired the contractor to do the job. The prohibition of the tree preservation order is directed to "any person", and although each citizen is deemed to know the law it might reasonably be expected that a tree lopper contractor such as the Defendant would be better acquainted with a tree preservation order than other persons might be.

The maximum penalty for the offence is $20,000 ( s.126(1) of the Environmental Planning and Assessment Act 1979). There is an additional or substitutionary penalty provided by s.126(3) of directing the convicted defendant to plant and maintain new trees. In many cases involving contraventions of tree preservation orders this special penalty may be appropriate but in the present case where the Defendant does not own the property upon which the tree was growing it does not appear to be appropriate to impose a penalty under s.126(3). The Prosecutor does not invoke that penalty.

Having regard to the nature of the offence, the circumstances in which it was committed and the Defendant's criminal and moral responsibility therein (all these matters are adumbrated in my judgment of 30th November, 1989 - additionally for the purposes of imposing a penalty, I am prepared to assume that the tree was diseased with bracket fungus) I am of the opinion that both a conviction and a substantial penalty are called for in the present case.

The Defendant has had 3 prior convictions in the local courts (one in 1988 and two in 1989) for offences against tree preservation orders. In my judgment a fine of $5,000 is appropriate in the present case. The Defendant has asked for time to pay and this is not opposed by the Prosecutor. Accordingly I direct the payment of the fine within 6 months. The fine is to be paid to the Warringah Shire Council in accordance with s.640 of the Local Government Act 1919.

COSTS

The Prosecutor has submitted an itemised account for costs and disbursements totalling $8,199.80 in respect of the related prosecutions launched against the Defendant and the owner of the property upon which the subject tree was growing. As I have earlier mentioned the latter prosecution was discontinued, with no order as to costs, after the prosecution had been part heard, awaiting judgment in the prosecution of the Defendant.

The Prosecutor has apportioned his itemised costs and disbursements and seeks a costs order for $5,000 against the Defendant.

Counsel of the Defendant opposes any order for costs (other than nominal costs). He submits that the prosecution should have been brought in the Local Court and did not justify proceeding in this Court. I do not accept this submission. The prosecution was brought in this Court with the consent of the Minister as required by s.127(6) of the Environmental and Planning Assessment Act 1979. Although the offence involved but a single tree and one that I am prepared to assume was already diseased, the tree was nonetheless a substantial tree in a prominent foreshore location. Moreover the offence was committed by an experienced tree lopping contractor who undoubtedly ought to have known better.

In the circumstances I am of the opinion that the Prosecutor is entitled to his costs of the proceedings and I order the Defendant to pay the Prosecutor's costs as agreed or failing agreement, as taxed, such payment to be within the same period of 6 months as has been allowed for the payment of the aforesaid fine.

Accordingly, I make the following orders:

1. The Defendant is convicted of the offence charged.

2. The Defendant is fined the sum of $5,000 - such fine to be paid to the Warringah Shire Council in accordance with s.640 of the Local Government Act 1919 within a period of 6 months.

3. The Defendant is to pay the Prosecutor's reasonable costs, such costs to be as agreed or failing agreement as taxed by the Registrar - such costs to be paid within the aforesaid period of 6 months.

4. Exhibits to be returned.