Land and Environment Court of New South Wales CITATION : Council of Camden v Poyntz, John [2007] NSWLEC 439 PROSECUTION Council of Camden PARTIES : DEFENDANT Poyntz, John FILE NUMBER(S) : 50003 of 2007 CORAM: Talbot J KEY ISSUES: Prosecution :- Trees removed by contractor - section 10 application refused LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999: s10, s22 Environmental Planning and Assessment Act 1979: s126(3) CASES CITED: R v Thomson (2000) 49 NSWLR 383 DATES OF HEARING: 14/06/07 DATE OF JUDGMENT: 14 June 2007 PROSECUTOR Mr J Thompson (Barrister) SOLICITORS Ritchie & Castellan LEGAL REPRESENTATIVES: DEFENDANT Mr R de Meyrick (Barrister) SOLICITORS Kerrisons The Law Firm JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Talbot J 14 June 2007 50003 of 2007 Council of Camden v Poyntz, John 1 Talbot J: The defendant John Poyntz has pleaded guilty to the charge that between January and June in 2005 on land owned jointly by himself and his wife near Camden, he caused to be carried out clearing of part of that land without development consent in circumstances where development consent was required, pursuant to the Camden Local Environmental Plan No. 48. 2 The development that the defendant carried out was clearing of an area at the rear of his property adjacent to the Nepean River. The area cleared was approximately 25 metres back from the river bank and approximately 42 metres in depth. There were thirteen trees removed. The largest had a circumference of over 1000 mm. The other trees were of more modest circumference between 300 and 500 mm. However, it has been demonstrated that the significance of the trees arises first, became they are part of the riparian environment comprising a wildlife corridor and secondly because they are part of a Cumberland Plain Woodland remnant. The council has carried out studies of the vegetation in the area. They are reflected in a policy document following surveys undertaken by the National Parks and Wildlife Service, in the National Assets Policy. The studies identify the trees as being within an area referred to as core habitat with regional significance. The significance of the vegetation named is not disputed. 3 The defendant has pleaded guilty to the charge. The particulars as alleged in the summons have been amended to indicate the true nature of the extent of clearing undertaken by the defendant. It was an area significantly less than that originally claimed by the council. In the early stages of the proceedings the defendant appeared personally without the aid of legal representation. There was a course of negotiation evident from the nature of orders made by Justice Biscoe on the 16 March 2007. Efforts were made to deal with the damage caused by the unauthorised clearing in a satisfaction manner negotiated between the parties. Ultimately the negotiations did not bear fruit in the sense of avoiding the necessity for a hearing. However, following the collapse of the discussions on the third occasion the defendant entered a plea of guilty. 4 The plea of guilty amounts to an admission of the essential elements of the offence. Accordingly it is not necessary to go into the details of the relevant provisions that require consent or the fact that the defendant did not obtain that consent or that the defendant carried out the work as alleged. All of those matters are admitted by the plea. 5 The prosecutor urges the Court to convict the defendant and impose an appropriate penalty having regard to the various matters that need to be taken into account. Mr de Meyrick who appears for the defendant seeks to invoke the benefit of s 10 of the Crimes (Sentencing Procedure) Act 1999 on the basis that the having found the offence proved Court does not proceed to conviction and makes an order for a bushland restoration plan pursuant to s 126(3) of the Environmental Planning and Assessment Act 1979 in terms which have been settled between the parties. Following some observations made by me in the course of the hearing the proposed plan appears now to be in satisfactory terms. In addition the Court is invited, to impose a cost order in the sum of $10,000 by consent. 6 There are a number of matters that need to be taken into account, when considering whether to apply s 10. They are set out more particularly in subsection (3). 7 The first is an assessment of the person's character, antecedents, age, health and mental condition. In respect of all of those matters I see nothing that would be against the interest of the defendant. Character references have been provided to the court. I have had the opportunity of observing him in the witness box. I have no doubt that he is a person of good character. He was frank, honest and open in his answers to questions put to him by Mr Thompson on behalf of the council. 8 Subsection (3)(b) directs the Court to have regard to the trivial nature of the offence. That is where I have some significant difficulty. This is not a case where just one tree was removed. This is a case where a not insubstantial area was removed. In the context of the particular stand of trees, it was not insignificant. There were a number of trees that contributed to the positive elements of the habitat and treed area removed. 9 On the other hand the defendant has explained that when he purchased the property a short time prior to the commission of the offence, he became concerned about the extent of rubbish in the area. 10 It comprised junk, scrap metal, car parts, wire, all of which had been deposited some many years before. Accordingly it had become overgrown and intertwined with the subsequent tree growth. 11 I accept that there was no intent to gain benefit from the removal of the trees such as reclamation of a view loss or to carry out some positive development on that part of the land to meet the convenience or amenity of the defendant. Rather it was for the purpose of removing material that constituted what he saw as a threat to the safety of his own children. Such a deposit of rubbish can be regarded as a potential health and safety hazard, quite apart from its unsightly contribution to the environment. In one way the removal of the trees per se was not trivial. However, the motivation for their removal was in a sense both public spirited and in self interest. The defendant made a mistake. He had engaged the services of a friend who apparently owned the appropriate type of machinery for the job and then failed to appreciate that trees might be lost in the process. He confesses to not directing his friend to carry out the operation in such a way that at least some of the trees were retained. It probably did not occur to him to do so. He did not supervise the activity notwithstanding that it was occurring on his own property. 12 Not only do the matters I have just referred to go to whether or not the offence was of a trivial nature for the purposes of s 10, they also in some respects address the other matter specifically referred to in subsection (3) That is the extenuating circumstances in which the offence was committed. It is difficult to accept that in this day and age of the 21st century that any member of the public, other than the most ignorant, would not appreciate that the clearing of land and removal of trees is a matter which has attracted considerable attention, not only politically but in a community sense. Authorities demonstrate considerable public concern about the preservation of trees. In my view I think that this awareness would be more likely to be strongly focussed in an area such as a riparian environment immediately adjacent to and on the banks of the Nepean River. 13 The other circumstances that need to be taken into account include the co-operation of the defendant, his willingness to enter into an appropriate bushland regeneration restoration plan and the fact that he is unlikely to offend again. I do regard the nature of the offence as one that demands some recognition by the Court. 14 Mr Poyntz tells the Court either that he didn't think about it or he was not aware of the fact that he needed consent. Irrespective of their motivation and irrespective of their actual state of knowledge, people cannot carry out unauthorised activities on their land that results in the loss of vegetation to this extent. 15 However there are a number of circumstances that need to be taken into account in assessing what is a reasonable penalty. The maximum penalty when the proceedings are litigated in this Court is 1.1 million dollars. That is a maximum penalty set in a circumstance where there can be a whole range of offences which could be brought within a charge for breach of the provisions of the Environmental Planning and Assessment Act 1979. The potential damage can run into millions of dollars. There are a plethora of potential situations ranging from commercial circumstances down to very minor types of matters. This matter is in the lower end of the range. 16 I accept that the defendant's state of mind can be regarded as one of careless inattention. I do not believe that he knowingly set out with a deliberate intent to breach the law. I have already averted to the reasons for the actions that resulted in the offence and the laudable nature of the aspects relating to the removal of the rubbish. 17 However I must have regard to the prevalence of this type of offence. The experience of the Court demonstrates that they occur on a regular basis. Accordingly there needs to be a warning of general deterrence to the public at large that if you do this sort of thing then you will not necessarily be dealt with lightly. 18 As I have said, I accept that the defendant entered a plea of guilty at a reasonable time. He has shown significant remorse for what has occurred. I have very little doubt that he will not re-offend. His character is not in question. Not only will he incur the costs which he has agreed to pay in the sum of $10,000, but he has agreed to accept the consequence of orders made pursuant to s 126(3) of the Environmental Planning and Assessment Act in the terms agreed. I recognise that that is going to cost him money. 19 I do not regard that the offence is trivial to the extent that s 10 should apply. Nevertheless for all of the reasons that I have outlined the monetary penalty will be in the lowest range. 20 Without taking into account matters that I am entitled to take into account under s 22 of the Crimes (Sentencing Procedure) Act and the guideless set by the Court of Criminal Appeal in R v Thomson (2000) 49 NSWLR 383, I would have assessed the appropriate penalty in the sum of $5,000. In the circumstances however I think it is appropriate for a discount to be given. I propose to fine the defendant the sum of $3,500. 21 The orders that I make are: 1. Offence proved; 2. The defendant is convicted of the charge in the summons; 3. The defendant is ordered to pay a monetary penalty by way of fine in the sum of $3,500; 4. I make orders for a bushland restoration plan pursuant to s 126(3) of the Environmental Planning and Assessment Act 1979 in the terms annexed. 5. By consent the defendant is to pay the prosecutor's costs in the sum of $10,000. 6. The exhibits may be returned. ANNEXURE A ORDERS FOR A BUSHLAND RESTORATION PLAN MADE PURSUANT TO SECTION 126(3) OF THE ENVIRONMENTAL PLANNING AND ASSESSMENT ACT 1979 PROPERTY: Lot 14 in Deposited Plan 262272 being 12 Whiteman Lane Ellis Lane. A Bushland Restoration Plan ("BRP") must be prepared by a suitably qualified bush regenerator. Within 7 days of the date of the orders of the Land and Environment Court the Defendant is to submit the name of the bush regenerator chosen by the Defendant to the Council for its approval. The BRP is to be prepared within 28 days from the date of notification by the Council to the Defendant of its approval of the person put forward by the Defendant as the bush regenerator. The BRP is to be submitted to the Council for its approval 28 days or earlier from the date of the Court's orders. The BRP is to include a site plan of the property which identifies: · The location, boundary dimensions, site area and north point of the land; · The location of existing buildings and structures on the land; · The contours/slope (topography and aspect) including the location of escarpment/rock outcrops; · Any watercourses, stormwater drains, and riparian zones (including ephemeral and intermittent); · The area to which the bushland restoration plan applies; and · The location of any threatened species or specific threatened species habitat. The BRP is also to provide for the following: 1. Discuss the ecological values and habitat values of the area to which the BRP applies: · description of the vegetation communities and habitats present (in the cases of illegal land modification or clearing, a description of the former vegetation communities/structure and habitats prior to clearing), soils and geology; · current condition of the vegetation of the area to which the BRP applies; · any noxious and environmental weeds present; · any adjoining bushland, wildlife corridor or habitat values; and · compliance with the Council's Natural Assets Policy. Please note: Photographic evidence must be provided to support descriptions of the site. 2. To restore the site to natural bushland the proposed restoration measures must include: · Protection measures (i.e. fencing or barriers) for areas where natural regeneration is proposed and/or areas where revegetation works area proposed to be undertaken; · Details of any walking/access tracks and/or other building structures or features within the area to which the BRP applies; · Weed management techniques and proposed weed control methods across the entire area. Include a map with the different restoration treatment areas defined; · Other assisted bush regeneration techniques, where required, such as matting and revegetation to assist natural regeneration on the site. Revegetation works should include a diversity of locally indigenous species and details of planting density and source of planting stock and mulch (NB: Plants must be of local provenance); · Strategies to undertake seed collection from the site for propagation and/or proposals to obtain suitable plant material for any proposed revegetation; · Vegetation management techniques proposed within any Asset Protection Zone (APZ) if required; · Any linkages of the BRP with any landscape plan, bushfire mitigation measures or Species Impact Statement (SIS). 3. Schedule of works and timeline The BRP must contain a Schedule of Works which defines: · What works are proposed; · When those works will be commenced, the period of time that the works will be undertaken, and the date the works are to be completed; · Who is responsible for undertaking the works; and · Method and times for monitoring works with a schedule of reporting. The Schedule of Works should provide realistic proposed timeframes for any bushland restoration and/or re-vegetation work. The Schedule should also have reporting timeframes which demonstrate to Council that the BRP is being implemented. In general, at least two brief reports should be provided, one after the initial protection/primary weed control/preparation and planting works are completed and one final report when the secondary and maintenance work schedule within the BRP is completed. The BRP submitted to Council for approval must cover a time frame of a minimum of five years. A written report must be submitted to Council every six months to ensure ongoing compliance and to ensure that works are completed to the satisfaction of Council. The report must include: · Works completed within the period of reporting; · Photographic evidence of restoration activities at the site; · Signoff by the lead bush regenerator; and · An outline of what works will be completed within the next 6 months. All restoration works must be undertaken by a qualified and experienced bush regenerator/bush regeneration company. Subject to Council being satisfied with the proposed BRP, the Council will approve the BRP within a period of 40 days after lodgement by the Defendant. The Defendant will commence the Schedule of Works within a period of 28 days from approval of the BRP unless varied by Camden Council. 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.