Land and Environment Court of New South Wales CITATION : Yarrowlumla Shire Council v Fenwick [2000] NSWLEC 121 PROSECUTOR: PARTIES : Yarrowlumla Shire Council DEFENDANT John Patrick Fenwick FILE NUMBER(S) : 50083 of 1999 CORAM: Sheahan J KEY ISSUES: Environmental Offences :- development of road without consent - plea of guilty - ancillary removal of trees not subject of specific charge - undertaking to court LEGISLATION CITED: Environmental Planning & Assessment Act 1979 CASES CITED: DATES OF HEARING: 11/05/2000 EX TEMPORE 05/11/2000 JUDGMENT DATE : PROSECUTOR Mr Alan Bradbury (Solicitor) SOLICITORS Minter Ellison LEGAL REPRESENTATIVES: DEFENDANT Mr J Robson (Barrister) SOLICITORS Tetlow Jansen & Doyle JUDGMENT: IN THE LAND AND Matter No: 50083 of 1999 ENVIRONMENT COURT Coram: Sheahan J OF NEW SOUTH WALES 11 May 2000 YARROWLUMLA SHIRE COUNCIL Prosecutor v JOHN PATRICK FENWICK Defendant JUDGMENT 1. The defendant Mr Fenwick, known as Jock, is a 53 year old plant operator of modest means, who lives in suburban Canberra, but has owned and leased a total of about 480 acres of agricultural and timbered land at Burra, between Queanbeyan and Michelago, for about 18 years and intends to retire there. 2. He works as a subcontractor to the ACT Electricity & Water Authority, and his direct supervisor, Mr Apps, holds him in high regard as " reliable and professional ". 3. He has always accessed his Burra land by using a track, often unsuitable to two wheel drive vehicles, on a Crown road reserve linking his holding to Burra Road. The reserve runs through the holdings of the Graham family. At the track's junction with Burra Road there was a " dogleg " in the track to assist in the negotiation of its steep slope. 4. Mr Fenwick says Mrs Graham asked him to remove the dogleg and straighten the road when he sought to improve the track and widen it for his own purposes. He did some of the work himself and retained a bulldozer operator to do the heavier components. It would appear that the trees allegedly removed were so removed by that operator and not by Mr Fenwick. 5. None of the works involved in Mr Fenwick's project enjoy the approval of either the Council or the Department of Land & Water Conservation (" DLWC "). He has been charged by the Council with carrying out development without the requisite consent under the relevant Local Environmental Plan. The tree removal is damage of an environmental kind, but is not the subject of a specific charge. 6. Mr Fenwick entered a plea of guilty on 8 February, when the Prosecutor's evidence was on, and that is to his credit in the circumstances. 7. The Council has relied on a number of affidavits, without objection from Counsel for Fenwick, and I took the adjournment to consider them in depth. The Prosecutor relies on some admissions and other comments, made by Fenwick, in conversations which were conducted without any warning as to their consequences for him. 8. It is significant that Fenwick made some inquiries, after he was initially confronted on 23 November 1998 by relevant officers of Council and the DLWC, but he misjudged the situation regarding his need for approval, and the possible existence of an earlier approval he thought adequate, and is now prepared to face the consequences of his failure to obtain it. 9. It appears that the site and the works have not altered since 30 November 1998 when the officers returned to verify that Mr Fenwick had taken note of their instructions the week before. The photographs in the Council's evidence clearly show that the site has been extensively disturbed, and it would appear that inadequate erosion, siltation and sedimentation precautions had been taken, and that the works may have been somewhat unwise, and may even be unstable. 10. Council, despite the terms of the summons, does not seek any orders from the court under s 126(3), but relies on orders issued by Council under s 121B of the Environmental Planning & Assessment Act 1979. Certainly, substantial rehabilitation or remediation of the earthworks is required, and I take note of the defendant's undertaking to the court in the following terms: … that he will: 1. Apply his best effort to obtain within a period of three months: (a) development approval for any roadworks; (b) approval from the Department of Land and Construction to open the road; (c) approval from the Council for a rehabilitation plan that allows for the construction of the road; and (d) appropriate engineering solutions for the steep grade to the road. 2. To apply his best effort to complete all work (including compliance with the orders of Council dated 13 October 1999) within 6 months. 11. I would also like to quote for the record the following paragraphs from Mr Fenwick's affidavit of 10 May 2000: 13. Following a series of meetings with Council in the later part of 1999, Orders were made by Council to restore the land. To date I have not been able to comply with those orders due to the costs involved and the time it will take me to perform the work. 14. It is my intention on advice obtained from my solicitor to reinstate the disturbed area. I intend to do this by obtaining development approval for any road work. I also intend: (a) to obtain an approval from the Department of Land and Construction to open the road; and (b) to obtain Council's approval to a rehabilitation plan that allows for the construction of the road. 15. In relation to my application for development approval I understand that the steep gradient of the road will require me to obtain engineering advice in support of my application. Whilst I will endeavour to obtain all necessary approvals as soon as possible I believe it will take me up to 3 months to obtain the approvals referred to in paragraph 14. 16. On the basis of the matter detailed in paragraphs 14 and 15 above, it is my intention to complete all works (including compliance with Council's Order) within 6 months. Based upon my experience I would assess the costs of compliance with paragraphs 15 and 16 to be approximately $10,000. 12. I also note the explanations given by Mr Fenwick in his affidavit and in the witness box. I accept his concern about the land, and the trees which were removed, but I note also his assertion that some of those were regrowth in the roadworks of many years before. 13. In all the circumstances I am satisfied that Mr Fenwick is guilty of the offence charged, and that he is not, as his counsel conceded, entitled to the benefit of s 10 of the Crimes (Sentencing Procedure) Act. 14. Mr Fenwick, would you please stand up. I convict you of the offence charged and I impose a fine of $5,000, an amount to which I have reduced the penalty because of your evidence, your Counsel's submissions, and your written undertaking to the court. 15. You were also advantaged by Mr Bradbury's forbearance in your absence on 27 March, on which occasion I reserved the question of costs, so I today order you to pay all the Prosecutor's costs on a party/party basis, to be agreed or as assessed. 16. The fine is payable within six months of today and the costs within six months of their agreement, or assessment. 17. Exhibit 1 , which is the defendant's undertaking, will be retained in the court file. Mr Apps' testimonial in support of Mr Fenwick may be returned to Mr Robson, and the authorities handed up by Mr Bradbury may be returned to him. 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.