Mosman Municipal Council v Toltz [2002] NSWLEC 175

Land and Environment Court of New South Wales

CITATION : Mosman Municipal Council v Toltz [2002] NSWLEC 175 PROSECUTOR: Mosman Municipal Council PARTIES : DEFENDANT: Gerrard Lester Toltz

FILE NUMBER(S) : 50038 of 2002 CORAM: Lloyd J KEY ISSUES: Prosecution :- failure to comply with condition of development consent - plea of guilty LEGISLATION CITED: Environmental Planning and Assessment Act 1979 s 76A(1) and s 125(1) Crimes (Sentencing Procedure) Act 1999 s 10 CASES CITED: Thorneloe v Filipowski (2001) 52 NSWLR 60 DATES OF HEARING: 12/08/2002 EX TEMPORE JUDGMENT DATE : 08/12/2002

PROSECUTOR: Mr A M Hawkes SOLICITORS: Pike Pike & Fenwick LEGAL REPRESENTATIVES: DEFENDANT: Ms H P Irish SOLICITORS: Cutler Hugh & Harris

JUDGMENT: - 4 - IN THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES 50038 of 2002 Lloyd J 12 August 2002 MOSMAN MUNICIPAL COUNCIL Prosecutor v GERRARD LESTER TOLTZ Defendant EXTEMPORE JUDGMENT 1 HIS HONOUR: The defendant, Gerrard Lester Toltz, is charged with an offence against s 125(1) of the Environmental Planning and Assessment Act 1979 ("the EP&A Act") that between 8 October 2001 and 21 December 2001 at No. 22 Fairfax Road, Mosman, within the municipality of Mosman Council, the defendant did a thing forbidden to be done under that Act, namely he did commence development, namely the erection of a two storey dwelling house, construction of a double garage and a masonry front pool otherwise than in accordance with condition 1.10 of development consent No. 8.2000.361.1 granted by the prosecutor on 28 February 2001 and modified on 13 August 2001 contrary to s 76A(1) of the EP&A Act. 2 The particulars relied upon by the prosecutor are that the works were carried out otherwise than in accordance with condition 1.10 of the development consent No. 8.2000.361.1 and breached s 76A(1) of the EP&A Act in that a eucalyptus tree, Angophora costata, which used to be situated adjoining the pool in the north-eastern corner of the site has not been retained and reports of a National Arborists Association of Australia member arborist were not submitted to Mosman Municipal Council ("the council") fortnightly during the period of October to December 2001. 3 The relevant facts are to a substantial extent agreed and may be briefly described. On 28 February 2001 the council granted development consent for the erection of a two storey dwelling house, construction of a double garage and a masonry front fence and refurbishment of an existing swimming pool and landscaping at No. 22 Fairfax Road, Mosman. The consent was subject to a number of conditions including condition 1.10 which reads: 1.10 The applicant is to engage a National Arborists Association of Australia (NAAA) member arborist to report on the health of the existing trees including the street tree (Jacaranda mimosifolia), the two Eucalyptus trees listed at 9 metres and 10 metres respectively. These trees are to be retained and protected according to the best arboricultural practices and no level changes can occur within the canopy of these trees. This report is to be submitted to the Council prior to issue of the Construction Certificate. A total bond of $20,000 shall be paid to the Council prior to issue of the Construction Certificate. An NAAA member arborist is to be retained during construction to report on the health of the tress to be preserved and reports submitted to Council fortnightly. A further report is to be submitted on completion of construction, six months and twelve months later. The bond is to be returned subject to completion of these reports and inspection of the protected trees by a qualified Council officer to ensure they are in good health. 4 Pursuant to this condition of development consent the defendant provided the bond of $20,000 to the prosecutor. The defendant obtained an arborist's report from Mr Ian English of Sydney Arboricultural Services Pty Ltd on 8 May 2001. That report was then subsequently forwarded to the council. I should mention that the approved plans show a eucalyptus tree, Angophora costata, adjoining the swimming pool in the north-western corner of the subject premises as being retained. 5 It seems that excavation works at No. 22 Fairfax, Mosman were carried out in October 2001 and November 2001 being the demolition of the existing dwelling and garage. On or about 18 December 2001 the subject tree developed a noticeable lean and became obviously dangerous. On the same day the defendant telephoned the council to advise that the tree was tipping over and was dangerous. He forwarded a letter to the council stating that the tree was obviously unsafe and could cause severe damage to property and as well as danger to a person's life and limb. The letter states that it appears that the instability of the subsoil has resulted in support for the tree being lost, thus giving rise to the current problem. In the circumstances it was clearly necessary for the tree to be removed. This was then done between 18 December 2001 and 21 December 2001. 6 The defendant's builder, Mr John Dickson, has stated in his affidavit sworn 8 August 2002 that: no excavation works were carried out within the area recommended for protection by the arborist Mr English; the tree began to slowly tip over following the subsidence of soil near the tree after a lot of rain that had been experienced on the site between 18 November 2001 and 21 November; the tree tipped further in early December 2001. He also says that no excavation works had taken place within the protected area of the tree; that he was on site during the excavation works and can say that no excavation works took place within the recommended protection area of the tree and that no roots of the tree were severed by any excavation machine. The tree according to him did not tip due to the excavation works but rather due to the soil subsidence in the area of the tree root zone. 7 The defendant has given evidence. He says that he retained Mr English to provide a report in accordance with condition 1.10. He says that he provided the bond of $20,000 to the council in accordance with that condition. The defendant says that Mr Dickson informed him of his attempt to ring the arborist on at least two occasions and did not receive a response. On 12 December 2001 the defendant was further informed by Mr Dickson that he could not get Mr English to attend the site. The defendant then attempted to contact a number of alternative arborists and finally was able to contact Mr Brendan O'Sullivan who attended the site on 17 December 2001. 8 The defendant admits that there was a breach of condition 1.10 of the consent in that arborist's reports were not submitted fortnightly to the council. He notes that during November/December 2001 period there was unusually wet weather which resulted in no work being carried out on the site for many days. 9 The defendant is a solicitor with a busy practice and says that he has engaged a reputable and well-qualified professional to act on his behalf both in respect of the design and carrying out of the works at No. 22 Fairfax Road. He was not present at the site on a regular basis during the excavation works and the construction phase. He believed that the day-to-day works and compliance with the conditions of the development consent was the responsibility of the building contractor. He says the builder informed him that the works were carried out in accordance with the recommendations and instructions contained in the report of Mr English. That excavation works did not take place in the vicinity of the tree and that the soil subsided due to the heavy rain which in turn resulted in the tree tipping. The defendant further says that he never had any intention or desire to injure, damage or seek the removal of the tree. The tree was considered by himself and his family to be an asset to the property. It was intended to be retained as an integral part of the landscaping and its retention was one of the primary design factors as evidenced on the plans. 10 The defendant admits that he was in breach of condition 1.10 in that he failed to personally ensure, or direct his builder to ensure, that the reports of the arborist were submitted to the council fortnightly between about 12 October 2001 and 18 December 2001. He says that this was due to his genuinely mistaken belief that the conditions of development consent were the responsibility of the builder who was in charge of the project at all material times. Moreover the builder had exclusive possession of the site throughout the relevant period. The defendant says that he is fully prepared to undertake both to the council and to the Court to replace the tree with an identical species and in accordance with the requirements of the council's landscape designer. 11 In determining the question of penalty I am required to have regard to what was said by the Court of Criminal Appeal in Thorneloe v Filipowski (2001) 52 NSWLR 60. In that case the Chief Justice, with whom Hulme and Howie JJ agreed, said at 74-75 [171]: Even in the case of an offence of strict liability, no public purpose is served by recording a conviction or imposing a penalty in circumstances where the relevant accused could not, as a matter of practical reality, have done anything to ensure that the offence or, in the case of a result offence, the adverse consequences of the conduct did not occur. Again at 76 [178] the Chief Justice said: It is, in my opinion, relevant to the exercise of the discretion under s 10 of the Sentencing Act , in the context of a strict liability offence, to consider what the applicant for the benefit of s 10 could have done to avert the event that has occurred. 12 I am satisfied by the evidence that the loss of the tree in this instance was not caused by any positive or intentional act on the part of the defendant, or anyone else. The only omission on the part of the defendant was his failure to submit the report of an arborist fortnightly to the council. As I have noted, he understood that this was the responsibility of the builder. 13 In my opinion therefore this is an appropriate case where s 10 of the Crimes (Sentencing Procedure) Act 1999 can be applied. I note the defendant's undertaking to replace the tree that was lost. 14 The formal orders are as follows: 1. There is an undertaking given by the defendant to both Mosman Municipal Council and the Court to replace the tree that was lost with an identical species and in accordance with the requirements of the council's landscape designer, Ms Eliza MacLennan as set out in her memorandum dated 6 June 2002, a copy of which is annexed and marked "I" to the defendant's affidavit sworn 12 July 2002. 2. The offence is proved, but pursuant to s 10(1)(a) of the Crimes (Sentencing Procedure) Act 1999 I am satisfied that it is inexpedient to inflict any punishment upon the defendant and without proceeding to a conviction I order that the charge be dismissed. 3. The defendant pay the prosecutor's costs in accordance with s 52(2) of the Land and Environment Court Act 1979. 4. Exhibit A shall remain with the Court. Copies of the photographs that have been handed up are to be returned. I hereby certify that the preceding 14 paragraphs are a true copy of the reasons for judgment herein of the Honourable Mr Justice Lloyd