Land and Environment Court New South Wales Medium Neutral Citation: Burwood Council v Abdul-Rahman [2017] NSWLEC 103 Hearing dates: 14 August 2017 Decision date: 14 August 2017 Jurisdiction: Class 5 Before: Moore J Decision: At [13] Catchwords: DEVELOPMENT CONSENT - heritage conservation area - requirement in Local Environmental Plan for development consent to be obtained prior to removal of a tree - development consent not obtained - tree removed - property owner charged pursuant to s 125(1) of the Environment Planning and Assessment Act 1979 with offence of aiding, abetting, procuring or counselling removal of the tree (in reliance on s 125(3A) of the Act) - admissions made during interview under caution - defendant convicted Legislation Cited: Burwood Local Environmental Plan 2012 Environmental Planning and Assessment Act 1979 (NSW), ss 76A, 125(1), 125(3A) Cases Cited: Lenjade Pty Ltd v Randwick City Council [2017] NSWLEC 96 Category: Principal judgment Parties: Burwood City Council (Prosecutor) Omar Abdul-Rahman (Defendant) Representation: Counsel: Mr S Shneider, solicitor (Prosecutor) Mr O Abdul-Rahman (Defendant) Solicitors: Houston Dearn O'Connor (Prosecutor) File Number(s): 112255 of 2017 Publication restriction: No EX TEMPORE Judgment 1. HIS HONOUR: Mr Abdul-Rahman has been charged with removal of a lemon-scented gum growing in the front setback of his property at 2 Culdees Road, Burwood. 2. The evidence given by Mr Lilley, Burwood Council's Tree Management Officer, included an air photo, forming part of the document behind Tab 1 of Exhibit A, that shows the canopy on Mr Abdul-Rahman's property as at November 2015. In making that observation, I note that I have been provided with a title search of the property that demonstrates that Mr Abdul-Rahman is one of the owners of the property and is thus able to be charged with the offence that brings him before the Court. 3. The lemon-scented gum (corymbia citriodora) was present on the land, as demonstrated by that air photo in November 2015. Subsequent photographs (behind Tab 2 in Exhibit A) also show the lower portion of the trunk of the lemon-scented gum to the left of a hardstand driveway leading to a double car garage on Mr Abdul-Rahman's property. That which is shown is a trunk of a substantial tree at the location depicted in the air photo of November 2015. It is a trunk that bifurcates into two separate leaders at what would appear to be a little over two metres in height. 4. I am satisfied that it is self-evident from this photograph (taken from the nature strip outside Mr Abdul-Rahman's property) that the tree is one to which cl 5.9 of the Burwood Local Environmental Plan 2012 (the BLEP) applies - in that its diameter, at 1.4 metres above the ground, satisfies the requirements of the BLEP and the relevant provisions dealing with tree preservation in the Council's Development Control Plan (the DCP). The Council's DCP, in combination with the BLEP, makes it clear that a number of factors are relevant to this tree. 5. First, it is not an exempt tree. 6. Second, as Mr Abdul-Rahman's property is in a heritage conservation area, any application to remove the tree requires development consent from the Council. 7. Third, the express provisions of the DCP make provision, in a quite clearly written note in the DCP, that, even if a tree is dead, the consent of the Council is required for its removal. 8. Mr Abdul-Rahman was interviewed under caution, and a copy of the transcript of that interview is in evidence and forms part of the material in Exhibit C and it is located behind Tab 6. During the course of that interview Mr Abdul‑Rahman admits to authorising the removal of the tree. 9. Authorising the removal of the tree is a matter that engages the terms of s 125(3A) of the Environmental Planning and Assessment Act 1979 (the EP&A Act) that provides that somebody who aids, abets or procures or counsels the commission of an offence is guilty as a principal to the offence if charged pursuant to s 125(1) of the EP&A Act. Section 125(3A) does not, as I discussed recently in Lenjade Pty Ltd v Randwick City Council [2017] NSWLEC 96, constitute a separate offence - it is simply an alternative, available pathway to conviction for an offence as a principal. That provision has applied since the middle of 2015 and is therefore applicable to the charge here laid against Mr Abdul-Rahman. 10. Mr Abdul-Rahman has raised a number of matters that he considers to be of an exculpatory nature. First, he says that the tree was dead. During his cross-examination of Mr Lilley, he asked why the Council did not provide information concerning the state of the tree at the time he ordered or authorised its removal. 11. Second, he says that he relied on an arborist with whom he consulted - that arborist being a Mr Abubakir Taleb - who Mr Abdul-Rahman said told him that the tree was dead and that it was permissible to remove it. 12. Those are not, in fact, exculpatory matters going to the setting aside of the option of convicting for the offence. They may well be matters that are appropriate to be dealt with on sentencing for the offence but they do not provide any basis to set aside the validity of a charge pursuant to s 125(3A) leading to a conviction pursuant to a s 125(1), both of which find their basis on the breach of s 76A of the EP&A Act that Mr Abdul-Rahman did not seek the consent of the Council for the removal of the tree. 13. It therefore follows that I am satisfied, on the basis of the photographic evidence and the evidence contained in Mr Abdul-Rahman's record of interview, that Mr Abdul-Rahman should be and is convicted of offence as charged. NOTE: 1. The matter has been set down for a sentencing hearing on 4 December 2017. ********** Amendments 06 December 2017 - Amendment Class 4 to Class 5. 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. Decision last updated: 06 December 2017