Gosford City Council v Forrester [2010] NSWLEC 49

Reported Decision : 172 LGERA 400

Land and Environment Court of New South Wales

CITATION : Gosford City Council v Forrester [2010] NSWLEC 49

PROSECUTOR PARTIES : Gosford City Council DEFENDANT Forrester, John

FILE NUMBER(S) : 50046 of 2009

CORAM: Pain J

KEY ISSUES: PROSECUTION :- breach of tree preservation order - plea of not guilty - whether defence that tree had become dangerous established

Environmental Planning and Assessment Act 1979 s 4, 125(1) LEGISLATION CITED: Interpretation Act 1987 s 33 Gosford Interim Development Order No 122 cl 35

CASES CITED: Department of Environment and Climate Change v Olmwood Pty Limited [2010] NSWLEC 15 Miller v Minister of Pensions [1947] 2 All ER 372

D C Pearce and R S Geddes, Statutory Interpretation in Australia, 6th ed (2006) LexisNexis TEXTS CITED: Macquarie Dictionary Online (Macmillan Publishers Australia, 2010) Oxford English Dictionary Online second edition 1989 (Oxford University Press, 2009)

DATES OF HEARING: 15 March 2010, 16 March 2010

DATE OF JUDGMENT: 1 April 2010

PROSECUTOR Mr M Baird SOLICITOR LEGAL REPRESENTATIVES: P J Donnellan & Co DEFENDANT Mr I Hemmings Pro bono

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

Pain J

1 April 2010

50046 of 2009 Gosford City Council v Forrester

JUDGMENT 1 Her Honour: The Defendant is charged with committing an offence under s 125(1) of the Environmental Planning and Assessment Act 1979 (the EP&A Act) in that he cut down trees within the Gosford City local government area to which a tree preservation order (TPO) applied without the necessary consent of Gosford City Council (the Council). According to the particulars of the offence in the summons, four trees were felled and/or cleared being two syncarpia glomulifera (turpentine) (referred to as T1 and T4 in this judgment), one eucalyptus salinga (blue gum) (referred to as T2) and one eucalyptus pilularis (blackbutt) (referred to as T3). The alleged offence took place on properties at 15 Erina Valley Road Erina Heights being Lot 4 DP 739718 (T4), 11 Erina Valley Road Erina Heights being Lot 10 DP 785850 (T1 and T2) and 388 The Entrance Road Erina Heights being Lot 3 DP 739718 (T3) from about 28 March 2008 to 31 March 2008 inclusive. The properties are collectively referred to as the land. The Defendant has entered a plea of not guilty. Prosecutor's case 2 The offence consists of cutting down trees which required consent of the Council under an environmental planning instrument (the Gosford Interim Development Order No 122 (the IDO)) and no such consent was granted. 3 Section 125(1) of the EPA Act provides: Where any matter or thing is by or under this Act, other than by or under the regulations, directed or forbidden to be done, or where the Minister, the Director-General, a council or any other person is authorised by or under this Act, other than by or under the regulations, to direct any matter or thing to be done, or to forbid any matter or thing to be done, and that matter or thing if so directed to be done remains undone, or if so forbidden to be done is done, a person offending against that direction or prohibition shall be guilty of an offence against this Act. Interim Development Order No 122 4 At all relevant times the IDO applied to the land. The IDO is a deemed environmental planning instrument under s 4 of the EP&A Act. Clause 35 of the IDO provides: (1) Where it appears to the Council that it is expedient for the purpose of securing amenity or of reserving existing amenities it may for that purpose make an order and may by like resolution rescind or vary any such order. (2) A tree preservation order may prohibit the ringbarking, cutting down, topping, lopping, removing, injuring or destruction of any tree or trees specified therein, except with the consent of the Council and any such consent may be given subject to such conditions as the Council may think fit. (3) A tree preservation order may relate to any tree or trees or to any specified class, type or description of trees on land described in such order and such land may be described particularly or generally by reference to the land, the subject of this Order, or any part thereof. (4) The Council shall forthwith upon the making of a tree preservation order cause notice of the making of such order to be published in the Gazette and in a newspaper circulating in the area in which land described in the order is situated. (5) In any proceedings under this Clause it shall be sufficient defence to prove that the tree or trees ringbarked, cut down, topped, lopped, removed, injured or wilfully destroyed was or were dying or dead or had become dangerous . (emphasis added)