Hunters Hill Council v Liu [2018] NSWLEC 108

Land and Environment Court New South Wales

Medium Neutral Citation: Hunters Hill Council v Liu [2018] NSWLEC 108 Hearing dates: 8 June 2018 Date of orders: 23 July 2018 Decision date: 23 July 2018 Jurisdiction: Class 5 Before: Moore J Decision: Orders at [95] Catchwords: PROSECUTION - cutting down of two trees without consent of council - consent of council required - two trees cut down were on neighbour's property - no consent from neighbour to remove the trees - plea of guilty - agreed facts demonstrate plea appropriate - extent of environmental harm caused - environmental harm significant - held to be aggravating factor - whether causing trees to be removed without consent was deliberate - removal was deliberate - held to be aggravating factor - assessment of seriousness of the offending conduct - offending conduct to be characterised as being in the middle of the low range of seriousness PENALTIES - defendant to be convicted - whether need to provide for specific and general deterrence - need to provide for general deterrence - instinctive synthesis of objective facts of offending conduct and defendant's subjective factors - indicative starting sentence of $64,000 fine for offence - 25% discount for early guilty plea - appropriate penalty fine of $48,000 REMEDIAL ORDERS - agreement between prosecutor and defendant for orders for replanting of two replacement trees on defendant's property - no agreement on whether period of years to monitor replacement trees should be imposed to address any arboricultural problems arising with replacement trees - monitoring of replacement trees to be required but for shorter period than that proposed by the council - no agreement on whether public positive covenant should be required if ongoing arboricultural monitoring was ordered orders made by consent - public positive covenant not required as orders sufficient COSTS - defendant ordered to pay prosecutor's costs and investigation costs and expenses the agreed sum of $35,000 Legislation Cited: Crimes (Sentencing Procedure) Act 1999, ss 3A, 21A and 22 Environmental Planning and Assessment Act 1979, ss 125, 125B and 126 Fines Act 1996, s 6 Hunters Hill Local Environmental Plan 2012, cl 5.9 Protection of the Environment Operations Act 1997, s 245 Cases Cited: Burwood Council v Abdul-Rahman (No 2) [2017] NSWLEC 177 Burwood Council v Jarvest Pty Ltd [2011] NSWLEC 109 Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 Chief Executive, Office of Environment and Heritage v Ausgrid (2013) 199 LGERA 1; [2013] NSWLEC 51 EPA v Barnes [2006] NSWCCA 246 Environment Protection Authority v Waste Recycling and Processing Corp (2006) 148 LGERA 299; [2006] NSWLEC 419 Hunters Hill Council v Carter [2018] NSWLEC 84 Hunters Hill Council v Gary Johnston [2013] NSWLEC 89 Ku-ring-gai Council v Edgar [2017] NSWLEC 49 Lake Macquarie City Council v Gordon [2017] NSWLEC 122 Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 Mosman Municipal Council v Menai Excavations Pty Limited (2002) 122 LGERA 89; [2002] NSWLEC 132 Pittwater Council v Scahill (2009) 165 LGERA 289; [2009] NSWLEC 12 R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 383 Veen v The Queen (No 2) 164 CLR 465; [1988] HCA 14 Willoughby City Council v Rahmani [2017] NSWLEC 166 Category: Sentence Parties: Hunters Hill Council (Prosecutor) Yueling Liu (Defendant) Representation: Counsel: Mr A Isaacs, barrister (Prosecutor) Ms N Hammond, barrister (Defendant)