Chia v Ku-ring-gai Council [2021] NSWCCA 189

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Chia v Ku-ring-gai Council [2021] NSWCCA 189 Hearing dates: 22 February and 18 June 2021 Date of orders: 20 August 2021 Decision date: 20 August 2021 Before: Hoeben CJ at CL at [1] Harrison J at [2] Wilson J at [78] Decision: (1) Allow the appeal against conviction. (2) Quash the conviction. (3) Order a new trial. Catchwords: ENVIRONMENTAL OFFENCES – appeal – appeal against conviction – where defendant appeals against conviction for injuring trees the subject of a Tree Preservation Order without consent contrary to s 125 of Environmental Planning and Assessment Act 1979 – whether defendant vicariously liable for actions of independent contractor and his subcontractors – assessment of nature and terms of instruction given and any qualifications to that instruction – whether trial judge failed to consider defence argument that defendant instructed contractor to comply with 10/50 Code – whether the instruction that contractor comply with 10/50 Code would operate as a qualification upon the width of general instructions amounting to an instruction not to fell trees beyond the 10/50 zone – conviction quashed – new trial ordered Legislation Cited: Environmental Planning and Assessment Act 1979 (NSW) s 125 Native Vegetation Act 2003 (NSW) Rural Fires Amendment (Vegetation Clearing) Act 2014 (NSW) Rural Fires Act 1997 (NSW) Cases Cited: Coffs Harbour City Council v Hickey [2004] NSWLEC 531 Darling Island Stevedoring and Lighterage Company Ltd v Long (1957) 97 CLR 36; [1957] HCA 26 Director-General, Department of Environment and Climate Change v Walker Corporation Pty Ltd (No 2) [2010] NSWLEC 73 Environmental Protection Authority v McConnell Dowell Constructors (Aust) Pty Ltd (2003) 128 LGERA 240; [2003] NSWLEC 70 Kondis v State Transport Authority (1984) 154 CLR 672; [1984] HCA 61 Ku-ring-gai Council v John David Chia (No 15) [2019] NSWLEC 1 Ku-ring-gai Council v John David Chia (No 16) [2019] NSWLEC 184 North Sydney Council v Moline; North Sydney Council v Tomkinson (No 2) [2008] NSWLEC 169 Stoneman v Lyons (1975) 133 CLR 550; [1975] HCA 59 Category: Principal judgment Parties: John David Chia (Appellant) Ku-ring-Gai Council (Respondent) Representation: Counsel: S Dowling SC with D Beaufils and S Gaussen (Appellant) D Buchanan SC with N Hammond (Respondent)