Land and Environment Court of New South Wales CITATION : Willoughby City Council v Revelas [2004] NSWLEC 747 PROSECUTOR: Willoughby City Council PARTIES : DEFENDANT: Revelas FILE NUMBER(S) : 50052 of 2003 CORAM: Bignold J KEY ISSUES: Environmental Offences :- lopping tree without consent under Tree Preservation Order-Sentence-offence of low gravity-mitigating circumstances-modest penalty imposed LEGISLATION CITED: Environmental Planning and Assessment Act 1979, s 125 CASES CITED: Willoughby City Council v Revelas [2004] NSWLEC 147 DATES OF HEARING: 03/06/2004 EX TEMPORE 06/03/2004 JUDGMENT DATE : PROSECUTOR: Ms E Duenow, Solicitor SOLICITORS Mallesons Stephen Jaques LEGAL REPRESENTATIVES: DEFENDANT: Mr D Brigden, Solicitor SOLICITORS Freehills JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Bignold J 3 June 2004 50052 of 2003 WILLOUGHBY CITY COUNCIL v DR C. REVELAS JUDGMENT CORAM: HIS HONOUR 1 The matter before me today is the reserved question of sentence and costs flowing from the publication of my reasons for judgment in this matter on 8 April 2004: see [2004] NSWLEC 147. In those reasons for judgment, I concluded at par 95 that the Prosecution had established beyond reasonable doubt the Defendant's guilt in respect of the offence with which he had been charged. That was an offence against the Environmental Planning and Assessment Act 1979, s 125 charging the Defendant that between 1 February 2003 and 12 May 2003 he did, without the consent of the Council, injure a tree being a eucalyptus piperita (a peppermint gum) growing on his property known as number 1 The Tor Walk, Castlecrag, in circumstances whereunder the Tree Preservation and Management Order (the TPO) made pursuant to cl 8 of the Environmental Planning Assessment Model Provisions 1980, the consent of the Prosecuting Council was required to be obtained for the carrying out of that activity. 2 Today the legal representatives for both the Prosecutor and Defendant have appeared and have helpfully joined in a joint submission relevant to sentence in this case. In that joint submission, it is submitted that if the Court is mindful of imposing a penalty, it should be a low penalty being one that is at the low end of the spectrum of the potential gravity of an offence of this kind under of the Environmental Planning and Assessment Act, s 125. That Act imposes a maximum penalty of $1.1 million for an offence against the Act and it is obvious that the prescription of that maximum penalty not only reflects the legislature's view that offences against the Environmental Planning Act can be and should be regarded as serious offences worthy of significant punishment, but also reflects the fact that the undiscriminated penalty covers a wide range of offences against the Act, each of which in turn cover a wide spectrum of gravity ranging from the insignificant at one end of the spectrum, to highly significant at the other. 3 As I say, the joint submission is that the Court should regard the offence established by the Prosecution in this case as at the low end of the spectrum of gravity for this particular offence. In making the submission, the parties jointly asked me to have regard to a number of features of the case which have been helpfully summarised under several headings. Firstly there is the Defendant's entire candour and cooperation with the Council in its investigation of the incident. Secondly there is the nature of the injury sustained to the tree. This was an injury caused by the unprofessional manner (in terms of arboreal considerations) with which the workman engaged by the Defendant removed a significant branch of the tree. 4 As my reasons for judgment earlier referred to had noted the significant branch removed from the tree did not involve more than ten percent of the canopy and but for the fact that it was not lopped according to the relevant Australian Standard for lopping of trees, no offence would have been committed because of the exemptions from the requirement for consent under the Council's TPO. It is significant, as the joint written submission states, that Dr Revelas, the Defendant, did not seek to claim the benefit of exemption under the tree preservation order because he candidly and freely acknowledged that the workman that he had engaged to lop the tree had not done the work in a proper and efficient manner. Nonetheless, the tree (which is a significant tree not yet grown to full maturity) remained at the date of trial late last year to be in a healthy condition and the evidence in the case did not suggest that its life was imperilled or its stability was compromised. 5 The next matter that the joint submission draws attention to is a matter that occupied much time at the trial. It concerned the Defendant's honest belief that the limb removed from the tree created a danger to personal safety and property. At the trial this matter was extensively considered and I found that the Defendant's concerns about the safety of the tree and the danger that it could pose to persons below it on the lower part of the site was an honestly held belief. The Defence of honest and reasonable mistake ultimately failed for the reasons given in my judgment and because I held it had not been an honest belief that could be justified on the standard of objective reasonableness. The reasons for judgment do extensively consider the basis for the Defendant's belief and what motivated him in causing the tree to be lopped and although ultimately satisfied beyond reasonable doubt that his belief was not objectively a reasonable belief that conclusion in no way detracted from the honesty of the belief held, nor for that matter did it detract from the reasons motivating the Defendant for giving the instructions for the tree to be lopped. 6 Another matter specifically referred to in the joint submission in this behalf is the Defendant's unhesitating and ungrudging concession, having heard the testimony of Mr Thyer (one of the Council's landscape officers who had been responsible for refusing the permit application to remove the tree) that some of the dissatisfaction and lack of conviction held by the Defendant of Mr Thyer's original decision in refusing the permit had been dispelled or dissipated on hearing Mr Thyer's more extensive evidence in the witness box. 7 The joint submission also asked me to take into account two other matters. In particular the fact that the Defendant had planted many other trees and vegetation as had been required by the Council on his land, this requirement having as its principal rationale no notion of compensation for the tree limb removed in this case but as a softening and obscuring of extensive sandstone retaining walls that had been erected on behalf of the Defendant at his property about the same time or shortly before the tree limb was lopped by the same workman who had done the tree lopping. Nonetheless, that fact indicates a sensitivity and concern by the Defendant for his land which occupies a prominent position because of topographical and locational features on the waterfront of Middle Harbour. 8 The second matter particularly referred to under this heading is the fact that the Defendant has agreed to pay the Council's costs in these proceedings and in the undefended proceedings where the Defendant was charged with an offence in relation to his having commissioned the building of the retaining walls that I have just referred to, in the combined sum of $52,500 and the Defendant has agreed that the costs order to be made in the present proceedings and in the concluded proceedings against the Defendant and in favour of the Council to be paid within 21 days of order. I accept the submission that the imposition of a significant amount of costs liability in this case is to be taken into consideration on the question of sentence. 9 Two further submissions were advanced on behalf of the Defendant in addition to the submissions jointly made. The additional submissions made on his behalf asked me to take into consideration in determining the appropriate sentence the Defendant's contrition and the fact that he is a person of good character who is unlikely to re-offend. In my judgment, these additional matters also have a mitigating bearing on the question of sentence. Although the Defendant has strenuously defended the present charge he did so on a narrow basis of the defence of honest and reasonable mistake and as I have earlier noted, throughout the Council's investigation of the present offence and the related offence dealing with the construction of the sandstone retaining walls the Defendant was perfectly candid and forthright with the Council investigators and was earnestly desirous of making good the consequences of the commission of the offences. Accordingly, notwithstanding that defence of the present charge, I do accept the genuineness of his contrition for the commission of the offences. 10 Both offences, of course, are strict liability offences, not carrying any required mental element for proof of the offence. In my reasons for judgment in this case and in the related case involving the retaining walls, I dealt extensively with the state of knowledge resident in the Defendant at the times the offences were carried out, he not being long a resident of Sydney. His standing in the community, including his standing overseas in South Africa and England, as a surgeon vouchsafe his good character and the unlikelihood of any re-offending now that he has become educated (painfully, perhaps) in the details and niceties of planning laws in Australia, and in New South Wales in particular. 11 For all the foregoing reasons, I have concluded that it is appropriate in the present case to proceed to enter a conviction in respect of the proven offence. The situation may well have been different, I interpose, but for the fact that the Defendant has previously been found guilty and convicted of the offence in relation to the building of the retaining walls on his property. In my reasons for judgment in that case I dealt extensively with the submission made on his behalf for discharge of the charge pursuant to the Crimes (Sentencing Procedure) Act 1999, s 10 but for the reasons there given, I considered it appropriate to register a conviction and to impose a fine. It is because of that fact that in the present case, though I entirely accept what has been put in the joint submission and in the additional submissions made on behalf of the Defendant, that the offence is properly to be regarded at the lowest end of the spectrum of gravity, it is nonetheless in my view appropriate to register a conviction and to impose a penalty. The penalty to be imposed indisputably is one that would reflect the gradation and characterisation of this particular offence as coming at the lowest end of the spectrum, not only for the objective considerations pertaining to the commission of the offence and its consequences, but also for the subjective factors pertaining to culpability that I have earlier alluded to in reference to the joint submission made on behalf of both parties. 12 In the circumstances, I propose to impose a very modest penalty in the sum of $2000 for all of the foregoing reasons. Accordingly, I make the following orders: 1. The Defendant is convicted of the offence as charged. 2. A penalty of $2,000 is imposed in respect of that conviction. 3. Order that that penalty be paid to the Council pursuant to of the Local Government Act 1993 , s 694. 4. Order the Defendant to pay the Prosecutor's costs of the present proceedings and of the concluded proceedings in matter 50051 of 2003 in the sum agreed of $52,500 noting that that amount is to be paid as agreed within 21 days of today's Order. 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.