Land and Environment Court of New South Wales CITATION: Byron Shire Council v Sommerville [1999] NSWLEC 97 PARTIES APPLICANT Byron Shire Council RESPONDENT Graham Sommerville NUMBER: 50127 of 1998 CORAM: Sheahan J KEY ISSUES: :- native vegetation, conviction, penalty, plea of guilty LEGISLATION CITED: native vegetation, conviction, penalty, plea of guilty DATES OF HEARING: 02/08/1999 EX TEMPORE JUDGMENT DATE: 02/08/1999 APPLICANT Mr A Hudson (Solicitor) of Wiltshire Webb LEGAL REPRESENTATIVES: RESPONDENT Mr J Maston (Barrister) SOLICITORS Mr J Boyd of Walters JUDGMENT: IN THE LAND AND Matter No: 50127 of 1999 ENVIRONMENT COURT Coram: Sheahan J OF NEW SOUTH WALES 8 February 1999 BYRON SHIRE COUNCIL Applicant v GRAHAM SOMMERVILLE Respondent EXTEMPORE JUDGMENT 1. The defendant, Graham Sommerville, is a thirty-one year old excavation contractor from Lismore who pleads guilty to a charge of breaching s 76 of the Environmental Planning and Assessment Act 1979 by removing without consent twelve large native trees, details of which are set out in the summons and in various exhibits - twelve trees which it is agreed are covered by a tree preservation order gazetted on 6 September 1996. 2. On 5 November 1998 I dealt with a similar charge against the owner of the relevant property, Mr Peter Vos. The clearing work was somewhat limited in scope and was undertaken to facilitate the planting of a large number of macadamia nut trees on a forty-four hectare rural residential property Mr Vos and his family had acquired near Byron Council area's western boundary, where it adjoins the Lismore Council area. Some significance is attached to this local government boundary by Mr Maston in his submissions. 3. The owner pleaded guilty and, like Mr Sommerville, sought the benefit of s 556A of the Crimes Act . The owner was prepared to commit to substantial remediation works worth approximately $15,000, but I declined to give the benefit of s 556A to Mr Vos. I imposed a fine of $10,000, ordered the remediation works detailed in the documents, and ordered him to pay the prosecutor's costs. 4. Mr Maston of counsel, who appears on behalf of Mr Sommerville, submits that those orders in the Vos matter properly reflect the criminality involved in this incident and that the Court should deal with Mr Sommerville more leniently. 5. Many of the submissions made for leniency in the case of Mr Vos have been made again today on behalf of Mr Sommerville: Their ignorance of the tree preservation order; their immediate, frank and consistent co-operation with the prosecutor; their immediate and continued pleas of guilty; and the assertions of their good character and reputation. 6. I have again considered the authorities in this and other Courts on the use of s 556A of the Crimes Act, and, despite the meritorious conduct and clean record of this defendant, I believe a conviction should be recorded and a fine imposed. 7. In particular I have had regard to the following authorities: The Director-General of Land and Water Conservation v Locke , 50095/97, judgment of Talbot J on 26 May 1998; The Director-General of Land and Water Conservation v Jones , decision of Lloyd J in 50067/97 on 1 April 1998; The Director-General of Land and Water Conservation v Robson and Others, 50043-50045/98, judgment of Bignold J on 6 August 1998, and the two Ryde Council cases to which reference has been made, and in which I think Mr Maston may have appeared, namely Ryde Council v Calleija and Ryde Council v Compagnon , matters 50081/97 and 50082/97, decisions reserved and given by Lloyd J on 16 March 1998. 8. The fine I imposed on Mr Vos was $10,000, and in my reasons for judgment I stated that that was an amount of two-thirds of the fine that had been imposed on Mr Calleija in respect of the offence which he and his contractor, Mr Compagnon, had been charged. The factual material in that case is somewhat similar to that in this. 9. I accept Mr Maston's submission that Mr Sommerville was innocently unaware of the tree preservation order. He has apparently worked largely in the Lismore and Ballina local government areas, in which no similar restrictions apply. When he undertook this particular job he assumed that the works to be done were exempt from the need for approval, as they were under the Lismore tree preservation order in Exhibit S1 , and probably also under the provisions of SEPP 46. 10. Nonetheless, as Mr Hudson submits, and contrary to the position in which Mr Compagnon found himself in the Ryde Council matter, Mr Sommerville is a professional operator who has been heavily engaged in the relevant industry since 1991. The character reference of Mr L J Bryen in Exhibit S4 indicates that Mr Sommerville now makes the relevant enquiries before commencing work and it is a pity for him that he did not do so in earlier times. He, as much as, if perhaps more so than, Mr Vos, should have made the relevant enquiries as to any approval that was required for the works proposed to be undertaken. 11. On the other hand, I accept that he is a man of professional competence and good character. Mr Bryen speaks highly of him, as does Miss Doolan in Exhibit S5 . He has been prominent in volunteer bushfire fighting activity, and I have before me in Exhibit S6 a certificate from the Premier, recognising his efforts in the catastrophic 1994 bush fires. The police and the Environment Protection Authority have no record of him (see Exhibits S2 and S3 ). 12. However, the photographs in Exhibit B3 , and the video which was shown to me during the hearing of the Vos matter, show the substantial nature, healthy condition and the acknowledged environmental significance of the native trees that were removed on this occasion. 13. It is incumbent on the Court, in cases such as this, to balance the need for general deterrence of the community, and general deterrence of those in the relevant industry, against the good record of individuals. 14. Accordingly, I find the offence proved, and I propose to convict Mr Sommerville, to fine him the sum of $5000, and to order him also to pay the prosecutor's costs. [Counsel addressed on arrangements for payment]. 15. The formal orders of the Court will be that: (1) The Defendant is convicted of the offence as charged in the summons. (2) The Defendant is fined the sum of $5000 and ordered to pay such fine to the Council within six months of today's date. (3) The defendant is ordered to pay the prosecutor's costs, to be agreed or assessed according to law, such costs to be paid within 6 months of such agreement being reached or assessment made. (4) All exhibits, including the references and the Premier's certificate, should be returned. 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.