Land and Environment Court of New South Wales CITATION: Gosford City Council v Robson Excavations Pty Ltd [1999] NSWLEC 154 PARTIES PROSECUTOR: Gosford City Council DEFENDANT: Robson Excavations Pty Ltd NUMBER: 50051-4 of 1998 CORAM: Lloyd J KEY ISSUES: Environmental Offences :- breach of tree preservation order - reduction of penalty for assistance to prosecutor LEGISLATION CITED: Crimes Act s 442B Environmental Planning & Assessment Act 1979 s125 DATES OF HEARING: 06/16/1999 EX TEMPORE JUDGMENT DATE: 06/16/1999 Prosecutor: G W Turnbull (barrister) Solicitors: P J Donnellan & Co LEGAL REPRESENTATIVES: Defendant: P C Tomasetti (barrister) Solicitors: Orchiston Ranzetta Finney JUDGMENT: IN THE LAND AND Matter No: 50051-4 of 1998 ENVIRONMENT COURT Coram: Lloyd J OF NEW SOUTH WALES Decision date: 16 June 1999 GOSFORD CITY COUNCIL Applicant v ROBSON EXCAVATIONS PTY L.IMITED Respondent JUDGMENT HIS HONOUR: 1. The defendant pleads guilty to four charges as follows:- In summons number 50051 of 1998, to the charge of " cut down trees without consent of Gosford City Council contrary to the tree preservation order published in the New South Wales Government Gazette 26 April 1995 ." It is said that this offence occurred between 3 October and 20 October 1997. Summons number 50052 of 1998, to the offence of " cut down trees without consent contrary to the tree preservation order published in the New South Wales Government Gazette 26 April 1995 ." This offence is said to have occurred between 21 October and 11 November 1997. Summons number 50053 of 1998, to the offence of " carry out development otherwise than in accordance with the development consent granted by Gosford City Council by notice of determination dated 11 March 1997 in respect of development application number 16110 ." It is alleged that the defendant breached conditions 1 and 19 of that consent. Summons number 50054 of 1998, to the offence of " erect a building otherwise than in accordance with the terms of the approval that relate to the manner in which the building is to be constructed ." The particulars of the manner in which the building is to be constructed are said to be breaches of conditions 4(b), 8, 11, 14, 29 and 31 of the approval. It is apparent that conditions 11 and 14 are no longer relied upon. Condition 29 is merely advisory. One is then left with conditions 4(b), 8 and 31 of the building approval which are said to have been infringed. 2. The relevant facts are largely agreed and are set out in an agreed statement of facts which have been supplemented by some additional affidavit and other evidence tendered during the course of this morning. 3. The proceedings relate to activities carried out by the defendant on land at Kincumber being lot 1 and lot 2 in Deposited Plan 749376. The defendant was and is a civil engineering contractor operating within the local government area of the prosecutor. 4. On 11 March 1997 the prosecutor granted development consent over the land permitting the development of a retirement village in four stages. On 9 October 1997 the prosecutor granted building approval to permit the erection of buildings on stage one of that development. 5. At all relevant times the owner of the land was Kincumber Village Management Pty Limited which had purchased the land from Nabalec Minerals Pty Limited. 6. Pursuant to a deed forming part of the contract for sale from Nabalec Minerals to Kincumber Village Management Pty Limited, Nabalec Minerals had an obligation to clear the land. Nabalec Minerals was associated to a company known as Henry Kendall Village Pty Limited. Henry Kendall Village and/or Nabalec engaged the defendant to carry out clearing of the land. 7. During the period 11 October 1997 to 21 October 1997 the defendant carried out clearing within stage one of the development as authorised by the development consent and the building approval. It seems, however, that in carrying out that clearing the defendant breached the conditions of the development consent, in particular condition 38, which provided that stage two shall not be commenced before stage one, in that it cleared vegetation from land within stages two, three and four. 8. After 21 October 1997 the defendant undertook further clearing of the land within all stages one to four inclusive. The work carried out after 21 October 1997 was in breach of in particular condition 19 of the development consent and of certain conditions of the building approval in that it involved clearing vegetation within stages one, two and three. 9. Insofar as stage one is concerned, trees were removed which were required to be retained by the terms of the approvals relating to stage one. Moreover, the trees that were removed from stage one were specifically identified in the approvals as trees to be retained. 10. Insofar as stages two, three and four were concerned, the defendant is said to have removed vegetation when there was no approval in place. The vegetation on the land was largely a conglomeration of trees and shrubs. Some of the vegetation removed were large trees such as swamp mahogany, covered by the tree preservation order and by the conditions of development consent and building approval. 11. I should refer to condition 19 of the development consent which provides:- All trees exceeding three metres in height or any species of mangrove of any height are to be retained on the property unless individual trees or area to be cleared have been delineated on the approved plan in which case this consent may be taken as a consent under the tree preservation order in respect of the trees or area so delineated. No tree specifically designated on the approved plan as being required to be retained shall be removed . I should also refer to the relevant conditions of the building approval. Condition 4(b) provides:- Strict adherence to council's siltation/erosion control policy must be observed before the commencement of any site works during construction and after completion of all building works. Condition 8 provides:- This permit shall include authority for the owner to remove any trees within a distance of three metres from the proposed building. The validity period for the removal is the same as this permit. Attention is drawn to the fact that no other trees are to be removed without a separate approval. Condition 31 provides:- The measures approved in the erosion sedimentation control plan submitted in accordance with council's code of practice for erosion and sedimentation control be implemented prior to the commencement of building work. 12. The development consent identifies the particular trees which must be retained. It seems that all other trees, other than those thus identified, may be removed. It seems that some 60 trees were identified as trees which are to be retained. Some 35 to 40 trees which had been identified as being trees which ought to be retained were removed. 13. It seems that the defendant was acting at the direction of Henry Kendall Village and Nabalec Minerals Pty Limited and later Megatrend Constructions Pty Ltd. Megatrend was the building company engaged by Kincumber Village Management to build the retirement village. 14. According to the affidavit of Mr Hall, the general manager of the defendant, on 19 May 1997 he met Mr Goodworth of Henry Kendall Retirement Village at the site. Mr Goodworth produced a plan of the site and explained the clearing work to be done. Mr Goodworth gave Mr Hall the plans and these showed the trees to be retained. Mr Goodworth said words to the following effect:- Mike, I want you to clear this site of the trees which are not shown as to be retained as shown on this plan. Please pay particular attention that you don't knock over the trees that are marked with pink tape. The trees with the pink tape are the ones that are on the plan. 15. Some time in September 1997 Mr Goodworth telephoned Mr Hall and said:- We are ready to proceed with that quote you prepared for me. We have sold the land but I would like you to meet with me on site so I can introduce you to a representative of the new owner (or words to a similar effect). 16. At a date early in October 1997 Mr Hall went to the site where he met Mr Kevin Eacott from Megatrend Constructions. He walked around the site with Mr Eacott. He was told by Mr Eacott:- You will be doing work for Megatrend though Henry Kendall Village will be paying for your work. Megatrend has purchased the property from Henry Kendall Village but they will be paying for the work you are doing. 17. At some later stage in a telephone call from a Mr Simon Dutson of Henry Kendall Village, Mr Hall was told:- When you are on site you can obey the instructions of Megatrend but Henry Kendall will be paying your account as per your quote. 18. At some later stage Mr Eacott showed Mr Hall a copy of the building approval but was shown only the front page of that document. 19. On Saturday 11 October 1998 the defendant started work. Mr Hall introduced his operator, Mr Ian Ward, to the site. He walked him around the site and showed him the trees that had been marked and instructed him to leave all the trees that had been marked but to clear the site in the normal way that they clear sites. 20. After 21 October 1997 Mr Hall was telephoned by Mr Eacott and was told:- Can you please pull down all the trees which are on the site? Mr Hall said:- That's not part of my brief. I can't do that . 21. It seems that at that stage all trees except those marked with pink ribbon had been removed, with the further exception of a patch of vegetation in the south-western corner of the site. 22. At about that time Mr Hall met both Mr Eacott and Mr Dutson on the site and the following conversation ensued. Mr Hall said:- Mr Eacott has asked us to pull all the trees down on site including the ones marked on the plan to be retained. That's not what our brief is to do. Do you have approval to knock all the trees down? Mr Eacott said:- We now have approval to remove all the trees. The marked trees are to go as well. Any trees within two or three metres of the building can go. They are all within two or three metres. Mr Hall said to Mr Dutson in Mr Eacott's presence:- Is that what you want me to do?" or "Do you agree? (or something to that effect). Mr Dutson said:- Yes, in the spirit of things Henry Kendall Village will have to pay for them. Can you give us a price to clear and mulch the remaining trees with the pink ribbons? 23. Mr Hall then gave a verbal quote on the spot which was accepted. He then instructed his operator to proceed to clear the trees. 24. Mr Hall deposes to the fact that from his conversation with Messrs Dutson and Eacott he had a very clear understanding that every last tree on the site was to go and the verbal quote he had given included the cost of removing every last tree. 25. Mr Hall had a habit of calling out at the site whilst works were in progress almost daily and would speak to Mr Eacott daily, either on site or by phone. In one of these conversations which occurred toward the end of the work then done, Mr Eacott said:- Can you please strip the site? Mr Hall understood that to mean the removal of all vegetation from the site, including grasses and shrubs. When asked to do this he told Mr Ecott:- That's not part of our brief and we are not going to do that work. 26. Mr Hall subsequently received a telephone call from Mr Dutson who said:- Can you please proceed to strip the site as requested by Mr Eacott. 27. Mr Hall discussed the price for the work and again received instructions to proceed. This was done on an hourly basis. It seems that the defendant made no further enquiries to ascertain whether or not there was in fact an approval for the removal of the additional trees. 28. In relation to the breach of condition 4(b) of the building approval to which I have referred, one requirement of the policy referred to therein was that siltation fences and erosion fences be installed on the site. It was Mr Hall's understanding that Megatrend would be putting up siltation fences and taking responsibility for erosion control on the site. Mr Hall had nevertheless ensured that the erosion fences were in place before stripping of the site occurred. 29. The defendant had been erecting windrows in the course of clearing the site. Windrows are, according to Mr Hall, strategically placed rows of mulched timber placed along the contour lines and gullies and the like which slow down and stop the flow of silt. The defendant had placed these in all the appropriate places on the site during the course of its work. At the time the defendant commenced the stripping, siltation fences had been erected by Megatrend and this seems to confirm the defendant's understanding that Megatrend would be taking responsibility for erosion and sedimentation control on the site. There was no rain at the material times and therefore there was, somewhat fortuitously, no adverse consequence on the environment arising from the absence of sedimentation fences or other sedimentation devices. 30. The evidence of Mr Hall is corroborated by an affidavit of Mr G R Kemp. He is employed as a plant operator by the defendant. Some time in October 1997 when Mr Kemp was clearing the trees that he had been instructed to clear by Mr Hall, he was approached by Mr Eacott. Mr Eacott had been introduced to him as being from Megatrend, the new owners of the property. Mr Eacott pointed out some particular trees and said to Mr Kemp:- See those trees in that grid line, they have to be removed. Mr Kemp could see the trees clearly had pink ribbons on them. He said:- I can't do that until we get verification that I'm allowed to do that work. I can speak to Mike or can you get in touch with him about that? Mr Eacott said:- I'll do that (or words to that effect). Mr Kemp was then spoken to by Mr Hall either on the site or by telephone. Mr Hall told him:- It's okay. You can follow the directions from Kevin Eacott as to the removal of those trees. 31. Shortly thereafter Mr Eacott said to Mr Kemp on the site:- We have now got approval to remove those trees marked with pink ribbon. You can proceed to pull them down. Mr Kemp then did as he was asked. 32. At various times during the days that Mr Kemp was on the site Mr Eacott would come and ask him to remove particular trees at various places and Mr Kemp would obey those directions. 33. The defendant indicated to the prosecutor on 18 August 1998 that it would plead guilty to the charges. The prosecutor accepts that the defendant indicated this position at what it considers to be an early opportunity, although it could not be considered as having been at the earliest opportunity. 34. The defendant has, since the prosecution was commenced, co-operated in all respects with the prosecutor and rendered assistance to the prosecution, in particular in the prosecution of those who might be described as the principal offenders. It has done so by allowing the prosecutor's employees unrestricted access to all employees and principals of the defendant company in the investigation of these offences. 35. Assistance has been given by the defendant to the prosecutor by way of affidavits provided by Mr Hall, Mr Kemp and two other employees of the defendant, Mr Ward and Mr Beattie. In the absence of these affidavits the prosecution of the principal offenders was based mainly upon presumptions and inferences arising from certain objective facts in order to prove the case. 36. Full and frank statements were able to be taken from each of those persons and that has led to the filing of affidavits sworn by them. This evidence is crucial in that it amounts to direct evidence by each of the named persons against each of the principal offenders. 37. The prosecutor accepts that considerable assistance has been given by the defendant to the prosecution, in establishing with some certainty that the remaining defendants who are not before me today are proper defendants and that there is evidence available to be used in the proceedings that have been brought against those defendants. 38. The assistance offered has fortified the prosecutor's view that Megatrend Construction Pty Limited with Henry Kendall Village and Nabalec Minerals were in control of the site and that the present defendant was merely acting at the direction of those companies. The provision of such assistance has avoided the incurring of substantial additional costs for the prosecution and has been helpful in reducing the costs of investigation and of the proceedings generally. 39. The defendant company has been in business for some 45 years. It is a small family company but has some 90 employees and engages the services of approximately50 subcontractors. The business consists principally of civil engineering contracting, including road construction, subdivision construction, sewage treatment works and bitumen sealing of roads and car parks. It is usual for its works to involve land clearing of some description. 40. The defendant carries out contracts for a range of public and private authorities, including Gosford City Council, other councils, the National Parks and Wildlife Service, Landcom and the Department of Public Works. 41. The defendant strongly supports community and sporting organisations and has undertaken numerous community works over the years. Examples of the latter include the construction of football grounds for St Edwards School, a soccer park, two ovals at Doyalson for community use with a further oval being constructed at present, roads and top dressing for the car park at the soccer ground, and the sponsorship of soccer, rugby and rugby league on the Central Coast. 42. In the present case the defendant was carrying out work other than as prime contractor. This usually represents approximately one-third of its work. When operating as prime contractor the defendant is responsible for obtaining the necessary council and other statutory approvals before carrying out the work. In those circumstances the defendant is aware of and complies with the necessary statutory obligations. 43. With respect to subcontract work, the defendant has now issued instructions to project managers and supervisors to make certain they have seen a full copy of the development consent and construction certificate before commencing work. The council's standards in relation to erosion and sedimentation control are contained in a guide book with which the defendant has instructed its project managers and supervisors to familiarise themselves to ensure all guidelines are followed. 44. In the present case the defendant had an honest belief that what was being done was lawful. It has not committed any previous offences of this kind in its forty-five years of operation. 45. The defendant is now aware that it is not enough to rely on assertions by one's principal and that one must independently satisfy oneself of the lawfulness of any work undertaken. 46. In accordance with s 439 of the Crimes Act , 1900 I take into account the fact that the defendant has pleaded guilty and had indicated that it would plead guilty at a relatively early stage. I therefore reduce the penalty that would have otherwise been imposed for that reason. 47. Section 442B of the Crimes Act provides that a Court may reduce the penalty it would otherwise impose having regard to the degree to which the defendant has assisted or undertaken to assist law enforcement authorities in the prevention, detection or investigation of, or in proceedings relating to, the offence or other offences. 48. That section sets out a number of matters to be taken into account in circumstances in which it applies. In particular, I take into account the significance and usefulness of the defendant's assistance to the prosecutor in the prosecution of the remaining defendants who it might be fairly said, are the principal offenders. I also take into account the nature and extent of that assistance. As indicated, the defendant has offered its director and employees as witnesses in support of the prosecutor's case against the other defendants. I also take into account the timeliness of that assistance and of the undertaking to assist. I take into account the fact that no benefit has been obtained or gained by the defendant by reason of its assistance or undertaking to assist. I also take into account the fact that the assistance offered by the defendant concerns similar offences as that for which the defendant is being dealt with today. 49. I accept that the defendant has never been convicted of a like offence, has no prior record and, in view of the procedures it has now adopted, is unlikely to re-offend. 50. An important consideration is whether the offence caused any harm to the environment. In the present case that harm, it seems, can largely be overcome by implementation of the landscaping plan which has been approved as part of the overall works. 51. I also take into account the fact that the defendant is liable for and has paid the prosecutor's costs in the sum of $4 591. The defendant will, of-course, have to meet its own costs. 52. In taking all these matters into account it is nevertheless appropriate that a monetary penalty be imposed having regard to the large number of trees that were unlawfully removed, being a total of some thirty-five to forty trees. 53. It is easy to be judgmental in hindsight but it is not enough for a person removing trees to simply rely upon assertions by a principal that the necessary consents or approvals are in place. The actual approval itself should be sighted. 54.` I also have to bear in mind that the imposition of the penalty serves the purpose of a general deterrent although in this case its purpose as a specific deterrent is not as important. 55. At the time of the commission of these offences a penalty unit was $110. Each offence, other than that referred to in summons No. 50054 of 1998, carries a maximum penalty of $110 000. The maximum penalty for the offence described in summons No. 50054 of 1998 is $44 000. It is, of-course, true to say that the maximum penalties are only reserved for the worst category of offence. That is not the case here. 56. Having regard to the fact that the defendant has pleaded guilty, its previously unblemished record, its community work and the procedures it has now adopted, I would have thought that a total penalty bearing in mind the principle of totality for all four offences would have been in the order of $35 000. But in view of the considerable assistance afforded to the prosecutor in its prosecution of the remaining defendants, I am prepared, pursuant to s 442B of the Crimes Act , to reduce that amount by a further sixty per cent. This discount is not intended to be a rigid or mathematical exercise, but reflects the considerable assistance offered by the defendant in this case towards the securing of a conviction of the principal offenders in due course. 57. The total penalty for the four related offences will therefore be $14 000, apportioned as follows:- No. 50051 of 1998, $7 467. No. 50052 of 1998, $3 733. No. 50053 of 1998, $1 867. No. 50054 of 1998, $933. 58. Although at first sight it might seem that the charge under 50054 of 1998 is not of the same kind as the other three offences, they all nevertheless arise out of the same activity, that is to say, the removal of trees, in that case without the necessary siltation controls in place. I am prepared for the purpose of the principle of totality to regard that charge as all arising out of the same activity as the removal of the trees. 59. Accordingly, the formal orders are as I have indicated. There will be a penalty in matter 50051 of 1998 of $7 467, a penalty in 50052 of 1998 in the sum of $3 733, a penalty in 50053 of 1998 in the sum of $1 867 and a penalty in 50054 of 1998 in the sum of $933, a total of $14 000. Since costs have been paid there will be no order as to costs. The exhibits may 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.