Brown v Vine [1989] NSWLEC 180

Land and Environment Court of New South Wales

CITATION : Brown v Vine [1989] NSWLEC 180 PROSECUTER Brown PARTIES : DEFENDANT Robert Anthony Vine

FILE NUMBER(S) : 50003 of 1988 CORAM: Stein J KEY ISSUES: :- LEGISLATION CITED: Environmental Planning And Assessment Act CASES CITED: DATES OF HEARING: DATE OF JUDGMENT: 04/27/1989

PROSECTOR LEGAL REPRESENTATIVES: Mr Bannor

JUDGMENT:

HIS HONOUR: On 19 April 1989 I found the defendant, Robert Anthony Vine, not guilty of a breach of a Tree Preservation Order and dismissed the summons brought against him. I indicated that I would give my reasons later and this I now do.

The summons brought by the Town Clerk of the Concord Municipal Council charges that the defendant committed an offence on 12 September 1987 in that he did cut down remove or wilfully destroy mangrove trees having a height greater than six (6) feet in contravention of the Tree Preservation Order made on 21st February, 1972 under Clause 41 of the Concord Planning Scheme Ordinance.

Clause 41 of the Concord Planning Scheme Ordinance, a deemed environmental planning instrument under the Environmental Planning and Assessment Act, provides that the Council may make a tree preservation order. Such an Order "may prohibit the ringbarking, cutting down, topping, lopping, removing, injuring or wilful destruction of any tree or trees specified in such order except with the consent of the responsible authority...." Notice of the Concord Council's tree preservation order was published in the Government Gazette on 18 February 1972. The order extends to "any tree or trees within the Municipality of Concord, having a height greater than 6 feet or with a branch spread exceeding 4 feet in diameter".