Willoughby City Council v Revelas - [2004] NSWLEC 747

Land and Environment Court

of New South Wales

CITATION: Willoughby City Council v Revelas [2004] NSWLEC 747

PARTIES:
PROSECUTOR:
Willoughby City Council
DEFENDANT:
Revelas

FILE NUMBER(S): 50052 of 2003

CORAM: Bignold J

KEY ISSUES: Environmental Offences :- lopping tree without consent under Tree Preservation Order-Sentence-offence of low gravity-mitigating circumstances-modest penalty imposed

LEGISLATION CITED: Environmental Planning and Assessment Act 1979, s 125

CASES CITED: Willoughby City Council v Revelas [2004] NSWLEC 147

DATES OF HEARING: 03/06/2004

EX TEMPORE
JUDGMENT DATE : 06/03/2004

LEGAL REPRESENTATIVES:

PROSECUTOR:
Ms E Duenow, Solicitor
SOLICITORS
Mallesons Stephen Jaques
DEFENDANT:
Mr D Brigden, Solicitor
SOLICITORS
Freehills

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Bignold J

3 June 2004

50052 of 2003 WILLOUGHBY CITY COUNCIL v DR C. REVELAS
JUDGMENT

CORAM: HIS HONOUR

1 The matter before me today is the reserved question of sentence and costs flowing from the publication of my reasons for judgment in this matter on 8 April 2004: see [2004] NSWLEC 147. In those reasons for judgment, I concluded at par 95 that the Prosecution had established beyond reasonable doubt the Defendant’s guilt in respect of the offence with which he had been charged. That was an offence against the Environmental Planning and Assessment Act 1979, s 125 charging the Defendant that between 1 February 2003 and 12 May 2003 he did, without the consent of the Council, injure a tree being a eucalyptus piperita (a peppermint gum) growing on his property known as number 1 The Tor Walk, Castlecrag, in circumstances whereunder the Tree Preservation and Management Order (the TPO) made pursuant to cl 8 of the Environmental Planning Assessment Model Provisions 1980, the consent of the Prosecuting Council was required to be obtained for the carrying out of that activity.

2 Today the legal representatives for both the Prosecutor and Defendant have appeared and have helpfully joined in a joint submission relevant to sentence in this case. In that joint submission, it is submitted that if the Court is mindful of imposing a penalty, it should be a low penalty being one that is at the low end of the spectrum of the potential gravity of an offence of this kind under of the Environmental Planning and Assessment Act, s 125. That Act imposes a maximum penalty of $1.1 million for an offence against the Act and it is obvious that the prescription of that maximum penalty not only reflects the legislature’s view that offences against the Environmental Planning Act can be and should be regarded as serious offences worthy of significant punishment, but also reflects the fact that the undiscriminated penalty covers a wide range of offences against the Act, each of which in turn cover a wide spectrum of gravity ranging from the insignificant at one end of the spectrum, to highly significant at the other.

3 As I say, the joint submission is that the Court should regard the offence established by the Prosecution in this case as at the low end 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.

Continue reading Willoughby City Council v Revelas

Details

AGLC: Willoughby City Council v Revelas [2004] NSWLEC 747
Case: [2004] NSWLEC 747
Decision Date: 06/03/2004

CaseChat Overview and Summary

In the Land and Environment Court of New South Wales, the case of Willoughby City Council v Revelas [2004] NSWLEC 747 involved a dispute between the Willoughby City Council and Dr. C. Revelas. The Council prosecuted Dr. Revelas for an alleged offence under the Environmental Planning and Assessment Act 1979, specifically for injuring a eucalyptus piperita tree on his property without the required consent from the Council, as mandated by the Tree Preservation and Management Order. The court was tasked with determining the appropriate sentence and costs following the conviction of Dr. Revelas.

The central legal issue before the court was the appropriate sentence for Dr. Revelas, who had been found guilty of the offence. The court had to consider the severity of the offence, which involved the unprofessional lopping of a tree branch, and the mitigating factors presented, such as Dr. Revelas's candour, cooperation with the Council, and the minor impact on the tree's health. Additionally, the court had to weigh the defendant's honest belief that the tree posed a safety risk, despite this belief not being objectively reasonable. Both parties jointly submitted that the penalty should reflect the low gravity of the offence.

Bignold J, in delivering the judgment, acknowledged the submissions from both parties and considered the objective and subjective factors pertinent to the offence. The judge found that the tree's health was not significantly compromised, and Dr. Revelas had demonstrated genuine contrition and good character. The court imposed a modest penalty of $2,000 and ordered Dr. Revelas to pay the Council's costs of $52,500. The court's decision was influenced by the low-gravity nature of the offence, Dr. Revelas's cooperation, and his agreement to pay the costs promptly.

The court's final orders included a conviction for Dr. Revelas, a penalty of $2,000, an order for the payment of this penalty to the Council, and an order for Dr. Revelas to pay the Council's costs of $52,500 within 21 days of the court's order.

Orders