Local Court of New South Wales CITATION: Eurobodalla Shire Council v Cameron [2005] NSWLC 22 JURISDICTION: Criminal PARTIES: Eurobodalla Shire Council Scott Cameron FILE NUMBER: PLACE OF HEARING: Batemans Bay Local Court DATE OF DECISION: 08/29/2005 MAGISTRATE: Magistrate D Heilpern CATCHWORDS: Development without consent - unauthorised removal of trees - maximum penalty when penalty infringement notice issued LEGISLATION CITED: Environmental Planning and Assessment Act 1979 Fines Act Axer Pty Ltd v EPA [1993] 113 LGERA 357 Ebacarb Pty Ltd v EPA [2003] NSWLEC 441 CASES CITED: Regina v Doan [2000] NSWCCA 317 Sutherland Shire Council v Upper Class Developments Pty Limited [2003] NSWLEC 414 Inspector Daryl Wong v Arncul Pty Ltd [2000] NSWCIMC 17 REPRESENTATION: Mr Clarke for Council Mr Knox for Defendant ORDERS: The defendant is fined the sum of $10,000.00. There are court costs of $65 and he has 28 days to pay. Reasons for Decision 1 This matter is a prosecution by Eurobodalla Shire Council (Council) against Scott Cameron for carrying out a development without consent pursuant to Section 125(1) and s76A of the Environmental Planning and Assessment Act 1979. The defendant pleaded guilty at the third mention of the matter and it was set down for hearing on disputed facts. Prosecution Case 2 The defendants had his water-view house on the market for some months prior to the incident. In front of his house is a large gum tree. John Gomez, environmental ranger for the council attended at the property on 24 November 2004 having been called out to investigate a report of trees being cut down. Upon arrival he saw and photographed an employee of Eurobodalla Tree Services about 15 metres up a live gum tree, which was 20 metres tall. He was removing tree branches with a chain saw. Mr Cameron was spoken to shortly afterwards on site where he claimed he had permission to remove the trees. The trees were on a council reserve and no appropriate council consent was sought or obtained for the removal of the branches. Seven to ten branches had been cut from the reserve. 3 Mr Gomez made a notebook entry of his conversation regarding which he was not cross-examined at the disputed facts hearing. Part of that conversation is reproduced below (with spelling corrected) Gomez: Have you documents from Council for consent to remove those trees? Def: No, but I spoke to Rob Pollock who said it would be OK, then he put me onto Terry Wheatley who told me I could do it too. Gomez: So you have no paperwork indicating you're allowed? Def: No. I told you they said it's OK. Gomez: What is the reason for the removal? Def: It's a bloody eye-sore and I'm cleaning it up Gomez: Do you realize it is in a council reserve? Def: Yes. Who cares? It's an eye-sore and I'm going to get rid of this. There is then some irrelevant heated conversation before the following exchange takes place. Gomez: The tree that that person was up is green. It looks like a spotted gum. Did you ask them to cut that down? Def: Yes. I don't want it there. Gomez: But it's not dead? Def: I don't care. I'm allowed to do it so you can go and sort out your shit and leave us alone. 4 The photograph taken by Mr Gomez at the time clearly and uncontrovertibly shows a man up a live gum tree. 5 Council concedes that Terry Wheatley had attended at the house on the 11th of November 2004 and had told the defendant that he could "remove the old dead tree and three small wattles, but not to touch the gum trees"(Statement by Wheatley 29th November 2004). 6 According to Mr Ward of Eurobodalla Tree Services the defendant asked them to remove the branches and told them "he had been given approval to lop 10% of the tree by a Council official". He confirms that his employee was up the tree when Mr Gomez arrived at the site and asked them to "cease what we were doing, which we did" (Statement by Ward 20th December 2004) 7 Mrs Ilga Donkin is a nearby resident, a Justice of the Peace and a coordinator for Meals on Wheels. She describes the history of the reserve, and how it has been denuded of trees over the years. Some have been removed, others poisoned although there is no evidence that this was due to the defendant. On the day in question she heard chainsaws, went to investigate and saw a man up the trees cutting "into the tree". She took a photo. A person who she believed to be supervising the work said, "he had instructions to cut them down". 8 Thus far it seems that the defendant has been telling different things to different people, including that a counsellor gave him permission to undertake the work without consent – if true a most serious allegation indeed. 9 A Penalty Infringement Notice (PIN) issued in the sum of $600. The defendant elected to have the matter dealt with at court. Defence Case 10 The defendant in oral evidence claims he was not present at the incident, that he did not direct the employee of Eurobodalla Tree Services to cut the branches off the tree in question, and disputes the conversation with Wheatley, although "this is not particularly pressed". He also says that when Gomez arrived the cutter was up a dead tree, not the tree in question. However, these were not matters put in issue by the defence in the disputed facts hearing and neither the defendant nor the informant was tested on any of these issue. 11 Councillor Pollock has submitted a letter whereby he states that Mr Cameron rang him about the reserve and he referred the matter to Works Manager, Mr Warren Sharpe. Notably, he does not state that he gave permission for Mr Cameron to do anything. He does express surprise that the matter has come to this. 12 As a result of the infringement notice being served, the defendant's solicitor wrote to council claiming that the reserve was overgrown, snakes had recently made their way into Mr Cameron's pool and the reserve was a bushfire danger. The letter claimed that Mr Cameron had permission to undertake the work. Disputed Facts Hearing 13 There were two issues only for the disputed facts hearing. Firstly, it was the contention of the defence that the fact that the property was for sale was not an aggravating factor. In retrospect, this is probably not strictly speaking a disputed fact, but an issue in determining penalty. The second issue was the following statement in the facts presented at the court: "Mr Scott Cameron was sent a letter giving him the opportunity to explain the removal of the tree branches. However no return response was received by to Council" 14 It should be noted that these were the only facts put in contention by the defence. The balance of the prosecution case was not in issue and thus forms the basis of sentencing. Where the oral evidence of the defendant is not consistent with that of the prosecution case in other respects – that is other than those put in issue at the outset – the prosecution case forms the basis of sentencing. 15 As an aside, as will become clear, even if those facts were in dispute, the version of Gomez has been proven beyond reasonable doubt. I am firmly of the view that he was a witness of truth and that his version, as well as that of Weatley, Donkin and Ward represents precisely what happened. The defendants attempts to exonerate himself on matters that were not even put in issue by attempting to paint these witnesses as liars and then not "pressing" those points does him no credit at all. Mr Clarke was wise indeed not to cross-examine the defendant on these points, as they were not the issue in the hearing. 16 As to the letter issue, the evidence is that Council sent the letter. The evidence is it was not received. As such, no adverse finding or implication can be made against the defendant in terms of his failure to respond to the letter. Thus it does not in any way aggravate the offence in terms of determining penalty. 17 As to the issue of the house being for sale, photographs were tendered – Exhibit 2 and 3. What is completely clear from this evidence is that the tree in question affects the view of the defendant's property. It was in his words "an eye-sore". That is why he was cutting it. Any other explanation is fanciful and unacceptable. The fact that the property was for sale increases the motive for improving the water view. To suggest that the branches had little impact is not accepted, and any contention that the defendant could have made a more substantial difference by cutting the whole tree down is not relevant. It is a question of degree. In my view, that fact that the house was for sale, per se, does not aggravate the offence. Whether the offence was motivated by greed for a better view, or greed for more financial gain is neither here nor there – it is still an offence of greed where a private individual puts his own interests above those of the community, and breaches the planning laws by not allowing a proper assessment to be completed prior to an irreversible tree lopping exercise. 18 All the photographic evidence shows that the tree affected the view of the defendant's house to a significant degree. In his evidence the defendant conceded that it was "a large tree directly in the line of sight of my residence". 19 Lest it be an issue later on, there is clearly differing evidence on whether the defendant was intending to have the tree cut down. My understanding is that Council is not proceeding on that basis. For the purpose of determining sentence the facts are limited to lopping, not felling. Seriousness of the Offence 20 The defence contends that this is at the lower end of the scale of such offences as "it was only a couple of branches", and the branches had only a limited effect on the view. The defendant has no prior convictions, pleaded guilty at an early stage. The tree was not destroyed. 21 In my view that is not correct. This was an offence of greed. There were more than "a couple" of branches. The defendant was attempting to improve his view to the detriment of the rest of the community's enjoyment of the environment. This is a classic case of where a person with water views puts his financial or aesthetic needs above all others. 22 The defendant's true colours are shown in his immediate response. He sought to rely on approval from a counsellor and another council employee when challenged. He tried to bully Mr Gomez. He did not care that the tree was alive or that it was on a council reserve. He stated that he had permission to do the work, when demonstrably and uncontrovertibly that was not the case. He was specifically told by Wheatley not to touch the gum trees. 23 This offence is further aggravated by the fact that the trees were on public land. Interference with trees in parks, reserves and other public places is of itself more serious than on private land. In this case, the effect was not just to improve the view for the defendant, but were this offence to become rampant, the view from the river would no longer be of trees and shrubbery, but of bricks and tiles. 24 This area suffers only a little from the kind of wanton vandalism that leaves buildings defaced with the graffiti, windows smashed and public facilities ruined. On the other hand the lopping or felling of trees to improve views is in plague proportions. On any part of this stunning coastline one can see trees poisoned, diminished or removed to satisfy the selfish desires of those with water-view property without seeking or obtaining approval. Council has tried publicity campaigns, blocking penalty screens and now prosecutions. 25 This is an offence that is notoriously difficult to police, and when defendants are caught red-handed it is important to send a very clear message to the community that deters those who may be tempted to follow suit – See Axer Pty Ltd v EPA [1993] 113 LGERA 357. This is particularly so when the maximum penalty is so high and clearly designed by parliament to act as a deterrence. 26 In my view the offence is best placed in a middle bracket in terms of seriousness. The mitigating factors are that it was lopping not felling, some permission for a clean up had been given, there are no prior convictions, and the defendant pleaded guilty at an early opportunity. What is the Maximum Penalty? 27 The maximum penalty for this offence in the legislation is $1.1 Million. And the jurisdictional limit is $110,000. See Ebacarb Pty Ltd v EPA [2003] NSWLEC 441 and Regina v Doan [2000] NSWCCA 317). 28 However, Mr Knox argues that in this case the maximum penalty is only the amount of the PIN - $600. He submits that the election to court does not mean that the full penalty is available. 29 In my view the maximum penalty of $1.1 Millon applies. Section 37 of the Fines Act is perfectly clear. If one elects to have the matter dealt with by a court, the proceedings take place as if a penalty notice had not been issued. This includes the penalties. To suggest that the combined effect of ss126 and 127 is to limit the court to the penalty as per the PIN is erroneous. The PIN amount is not "the maximum monetary penalty" for breach in s127(3). It is the prescribed penalty under s127A(6)(b). The distinction is clearly mapped out in s127(7). If parliament had wanted to limit the penalty to the PIN where a court election occurs, then it could have clearly stated that. In the absence of such a legislative provision, the Fines Act prevails. 30 There is authority from the Land and Environment Court that supports this view – see Ebacarb Pty Ltd v EPA [2003] NSWLEC 441. In the aptly named case of Sutherland Shire Council v Upper Class Developments Pty Limited [2003] NSWLEC 414 at 37 – 40 Pain J dealt with a similar situation as follows: "I also need to mention one other matter which the Defendant's solicitor put to me in relation to even handedness or parity. The Defendant's solicitor submitted that I should take into account that matters 50088, 50091 and 50090 of 2003 had all been the subject of penalty infringement notices issued by the Council to the Defendant. If paid, these penalty infringement notices would have involved fines of $600 in relation to the failure to provide adequate erosion controls and of $1500 in relation to the water pollution offences. It was suggested to the Court that I should not impose significantly greater penalties than would have been payable had the penalty infringement notices not been Court elected as the Defendant chose to do. If I did so, this was said to penalise the Defendant company for choosing to come before the Court so that the matters in dispute could be put to the Court. I find this submission troubling in that this Court's jurisdiction is in no way limited by the fine limitations placed on penalty infringement notices. Section 37 of the Fines Act 1996 provides that, when a penalty infringement notice is Court elected, the legal position is that it is as if the penalty infringement notice had not been issued. Accordingly, I do not think it is appropriate to take into account the fine that was available for the penalty infringement notices issued to the Defendant in the assessment of penalty here. In my opinion, the circumstances of these offences warrant that a penalty of $10,000 be imposed in relation to each offence. There are mitigating factors I take into account in reducing that penalty. The Defendant has pleaded guilty at the earliest opportunity in all the matters. As the Prosecutor pointed out, a plea of guilty does entitle the Defendant to a discount in penalty under s 22 of the Crimes Sentencing Procedure Act 1999 in the range of ten to twenty-five percent. Relying on the guideline judgment of R v Thompson (2000) 49 NSWLR 383 I consider a discount in the highest range is warranted given the early guilty plea in all the matters, although I note that the utilitarian value of the plea should be reduced in part because of the high likelihood of success to the prosecution in the matter. I consider that the Defendant has expressed contrition and remorse and I take that into account in relation to the mitigating matters before me. I also note that there is no prior record of the Defendant, which I am informed has been in the business of property development for some four or five years. I have also been informed that the Prosecutor's costs are considerable in this matter being in the range of $30,000. This is a lot given the relatively low level of criminality in this matter and I will also take that into account." 31 I adopt similar reasoning in this case, and also in relation to the plea of guilty, remorse and the potential for costs. I note that this was also the view, although in a slightly different context, of the court in Inspector Daryl Wong v. Arncul Pty Ltd [2000] NSWCIMC 17 (1 May 2000). Penalty to be imposed. 32 Taking all the factors above into account it is appropriate to impose a fine upon the defendant, one that reflects the seriousness of the offence, the need to deter, the conduct of the defendant and the subjective factors. The defendant is fined the sum of $10,000.00. There are court costs of $65 and he has 28 days to pay. 33 As an aside I must commend Ranger Gomez for his diligence and attention to detail in the preparation of this matter and calm in the face of the defendant's ire. His preparation of the matter was an excellent example of the value of contemporaneous notes. 34 I have, after some consideration, decided not to comment on the serious allegations raised in respect of Counsellor Pollack or the appropriateness or otherwise of his somewhat ambiguous letter of support for the defendant. That may well be a matter for investigation in another venue. 35 I will now deal with the question of costs. David Heilpern Magistrate 29 August 2005 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.