SAAD .v. CANTERBURY CITY COUNCIL [2002] NSWCCA 62

New South Wales Court of Criminal Appeal

CITATION : SAAD .v. CANTERBURY CITY COUNCIL [2002] NSWCCA 62 FILE NUMBER(S) : CCA 60168/01 HEARING DATE(S) : 7 March 2002 JUDGMENT DATE : 18 April 2002

PARTIES : Sayed SAAD - Appellant Canterbury City Council - Respondent JUDGMENT OF : Spigelman CJ at 1; Grove J at 2; Barr J at 3

LOWER COURT JURISDICTION : Land and Environment Court LOWER COURT FILE NUMBER(S) : 50022/00 LOWER COURT JUDICIAL Bignold J OFFICER :

COUNSEL : Mr T.G. Howard for the Appellant Mr T. Robertson for the Respondent SOLICITORS : LegS Lawyers for the Appellant Pike Pike & Fenwick for the Repsondent

LEGISLATION CITED : Evidence Act 1995 Environmental Planning and Assessment Act 1979 CASES CITED: Soulemezis v Dudley Holdings (1987) 10 NSWLR 247 Colonial Life Insurance v Donnelly (1998) 82 FCR 418 DECISION : See Judgment at Paragraph 50

IN THE COURT OF CRIMINAL APPEAL 60168/01

Spigelman CJ Grove J Barr J

18 April 2002 SAYED SAAD V MICHELLE MORGAN ON BEHALF OF CANTERBURY CITY COUNCIL Judgment 1 Spigelman CJ: I agree with Barr J. 2 Grove J: I agree with Barr J. 3 Barr J: The appellant, Sayed Saad, appeals against a conviction entered in the Land and Environment Court.

The findings of fact 4 The facts found by the trial judge, Bignold J, were as follows. The appellant and his brother, Nadim Saad, were co-directors of a building company. On 17 August 1999 they obtained from Canterbury City Council ("the Council") the grant of a development consent for the demolition of two dwellings and the construction of a number of town houses on certain land at Punchbowl. Consent was subject to certain conditions, including the following - 37. Removal of the existing 2x Paperbark (Melaleuca decora), located in the centre of proposed rear units and patio and numbered 1 and 2 on the attached site plan and Cypress (Cupressus glauca) on the site is conditional on their replacement with suitable 100L specimens, to be located at an appropriate position, preferably to the front of the development. 38. The existing street tree, Sweet Gum (Liquidambar styraciflua) is to be protected during construction. Care should be taken when driving trucks near the tree to avoid soil compaction, truck and branch damage. 39. A separate application is to be made to the Council's Tree Preservation Officer regarding the pruning of Paperbarks (Melaleuca decora) and Yellow-wood (Podocarpus falcatus) on the development site. Work may only be undertaken if written approval has been granted. 40. The existing 2x Paperbark (Melaleuca decora) located on the south-east boundary and numbered 3 and 4 on the attached site plan. Yellow-wood (Podocarpus falcatus) and 2x Crepe Myrtles (Lagerstroemia indica) are to be retained. A suitable protective barrier is to be erected around the tree(s) prior to construction and is to be maintained during building operations. A bond of $1,000 be paid to Council prior to development to ensure the trees are protected. Details of the barrier are to be included in the Landscape Plan. 41. The Landscape Plan shall indicate as much of the existing vegetation as possible and include all significant vegetation to be removed or retained. 5 On or about 23 December 1999 one of the paperbarks mentioned in condition 40 was removed and the other was severely lopped. 6 On 7 January 2000 the appellant and his brother went to the Council office to talk to the respondent, a landscape architect, about the trees. An arrangement was made for the respondent to attend the site. She did so on 11 January 2000 and discovered what had happened to the trees. She pointed out to the appellant and his brother that there had been a breach of the conditions of consent. She also observed that certain fencing had not been provided as required by the conditions of consent and said that she would return within seven days to inspect the site and ensure that that had been done. 7 The respondent returned on 18 January 2000. The appellant and his brother and a Private Certifier were present. The Private Certifier asked what would then happen and the respondent said that an application for modification would have to be lodged with the Council. In fact, such an application had been made on 11 January 2000. The modification applied for was the removal of the trees. 8 On 3 February 2000 a Development Panel of the Council resolved to refuse to modify the conditions of approval but to take legal action against the appellant for contravening condition 40. On the same day Mr Rodney Lindsell, an officer of the Council, telephoned the respondent's brother and told him what had been decided. The appellant's brother said - I accept the determination of the Panel. I am responsible for construction and therefore I am responsible for the removal of the trees. 9 On 8 February the appellant lodged with the Council an application for a review of the decision. Two letters accompanied the application, one from Mr Paul dos Santos, the architect acting for the appellant and his brother and one from Mr Stephen Roumanos. Mr dos Santos' letter included the following - The above mentioned proposal was approved by council with condition No. 40 stating that 2 Paperback trees on the south-east corner be retained. As the site was being cleared in preparation for excavation these trees were removed as they were in the location of required footings. To have retained these trees would have not been possible due to their proximity to the approved building. My client is prepared to plant any trees as part of the development to council's satisfaction in return for the removal of the above mentined (sic) trees. As stated previously there was no conceivable manner to retain the existing trees. There was no ill intent on behalf of my client to remove any trees, they were just simply preparing the site for construction and were unaware the removal of the two trees we (sic) a major issue. 10 Mr Roumanos' letter stated - With regards to the proposed development at 2-4 The Broadway, Punchbowl. I have advised my clients for the removal of the existing 3 Melaleuca decoras to be removed upon council's permission. One of the trees being located in the centre of the site and the remaining two at the rear of the site to the right hand side being the two in question. I have found these trees to be within close proximity of the proposed development and will interfere with the proposed stormwater lines. As a result of these problems, I have advised for the removal of these two trees to take place on the conditions that they are replaced with three 100L trees specified on the landscape plan submitted to council. 11 By s 127 Environmental Planning and Assessment Act the prosecution had to be commenced within six months after the day of commission of the offence. The summons was not filed until 16 June 2000. The respondent as prosecutor therefore had to prove that the removal and lopping of the trees took place on or after 16 December 1999. Although there was evidence that those things had happened in November or December 1999, there was only one piece of evidence that could prove that they happened within the prescribed period of time.