Cowley v The Queen - [2020] NZHC 638

IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY

I TE KŌTI MATUA O AOTEAROA NGĀMOTU ROHE

CRI-2020-443-005

[2020] NZHC 638

BETWEEN
PETER JOHN COWLEY

Appellant

AND

THE QUEEN

Respondent

CRI-2020-443-006

BETWEEN

AMIE DEANNE COWLEY
Appellant

AND

THE QUEEN

Respondent

Hearing: 18 March 2020

Counsel:

N P Bourke for appellant

A D H Colley for respondent

Judgment:

24 March 2020

RESERVED JUDGMENT OF DOBSON J

[1] The appellant, Ms Amie Cowley (Ms Cowley), owns and occupies a property in suburban New Plymouth. A neighbouring property has a very substantial Moreton Bay fig tree growing on it. The tree enjoys status as a category two notable tree, which means that any cutting of the tree is regulated pursuant to rules issued under the New Plymouth District Plan. The tree is said to be 100 years old, approximately 20 metres tall and 30 metres wide.

COWLEY v R [2020] NZHC 638 [24 March 2020]

[2] A not insubstantial part of the tree’s branches and foliage hang over Ms Cowley’s property. In the circumstances described below, she and the other appellant, her father, Mr Cowley, pleaded guilty to breaching s 9(3) of the Resource Management Act 1991 when they accepted responsibility for trimming and removing branches from the tree without the requisite permission.

[3] The appellants were sentenced in a staged process concluding on 28 January 2020 in the New Plymouth District Court, when fines totalling $18,733.50 were imposed.1 That fine was divided as to $9,166.50 to Mr Cowley and $7,275 to Ms Cowley. They have both appealed the fines imposed as being manifestly excessive.

The circumstances of the offending

[4] Ms Cowley and another person acquired the property in 2014 and subsequently built a home and a shed on it. In seeking building consent from the New Plymouth District Council (the Council), Ms Cowley represented structures not intruding under the dripline of the tree, whereas the home and shed as subsequently completed did extend under that dripline.

[5] Ms Cowley became concerned at the tree dropping branches and other material on her property and raised these concerns with appropriate personnel at the Council. The Council approves certain arborist contractors to carry out work on notable trees, and Ms Cowley engaged an approved contractor, Atawhai Industries (Atawhai), in March 2017. That work was to occur in early May 2017 and before it started the Atawhai staff, Ms Cowley and a Council representative met on site to agree the precise extent of trimming that would occur.

[6] However, prior to the maintenance taking place, Mr Price, the adjoining owner on whose property the tree is growing, intervened, strenuously remonstrating with Ms Cowley that the tree was not to be touched. In Ms Cowley’s affidavit explaining the circumstances of the offending, she deposes that it was the aggressive conduct by

1 New Plymouth District Council v Cowley [2020] NZDC 1166.

Mr Price that caused the staff from Atawhai to decline to carry out any trimming work on the tree at all.

[7] In December…

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 Cowley v The Queen

Details

AGLC: Cowley v The Queen [2020] NZHC 638
Case: [2020] NZHC 638
Decision Date: 24 March 2020

CaseChat Overview and Summary

The appellants, Mr and Ms Cowley, have appealed against the fines imposed on them by the New Plymouth District Court for the unauthorised pruning of a protected Moreton Bay fig tree. The tree, which is a category two notable tree, is on the adjoining property of Mr Price. The appellants pleaded guilty to contravening the New Plymouth District Plan by trimming and removing branches from the tree without the requisite permission. They appealed against the fines imposed on them as being manifestly excessive. The court considered whether the starting point for the fines was too high, whether the Judge failed to accept mitigating circumstances, whether the Judge gave inadequate credit for the previous good character of the appellants, and whether the delay in sentencing was sufficient to warrant a discount on the sentence. The court found that the starting point was too high and that the Judge failed to accept mitigating circumstances. The court found that the discount for previous good character was inadequate but that the delay in sentencing was not sufficient to warrant a discount on the sentence. The court reduced the fine imposed on Ms Cowley from $7,275 to $4,502.25. The appeal by Mr Cowley was dismissed.

Orders