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Court of Criminal Appeal 16 November 2000

RAO v CANTERBURY CITY COUNCIL

[2000] NSWCCA 471

Other
CRIMINAL LAW APPEAL PENALTIES FOR ENVIRONMENTAL OFFENCES APPEAL DISMISSED.

Citation: RAO v CANTERBURY CITY COUNCIL [2000] NSWCCA 471
Court: Court of Criminal Appeal, New South Wales
Date: 16 November 2000
Judge(s): Mason P, Dowd J, Austin J

Background

The appellant owned a funeral parlour in Belmore, NSW. In 1995, Canterbury City Council granted him development consent for alterations and additions to the premises, subject to conditions requiring the retention of a row of pine trees at the rear of the site and the protection of a Fiddlewood tree during building operations. The conditions were the product of negotiations between the appellant and Council officers, and the appellant had been actively involved in those discussions.

In September 1996, Council officers inspecting the site found that the row of conifer pines had been cut down to stumps, and that no protective barrier had been erected around the Fiddlewood tree. The Fiddlewood subsequently suffered root damage from construction work, impairing its ability to absorb water and nutrients.

The Council brought two charges under s 125 of the Environmental Planning and Assessment Act 1979 (the Act) in the Land and Environment Court. After a trial before Pearlman CJ, the appellant was convicted on both charges and fined a total of $4,500, plus costs. He appealed to the Court of Criminal Appeal.

  • Whether the summonses disclosed an offence known to law under s 125 of the Act
  • Whether the summonses were defective for failing to identify the essential factual ingredients of each offence, including any requirement to plead that the appellant had "carried out" development contrary to s 76(2) of the Act
  • Whether the rule in Fleming v R (concerning the sufficiency of indictments) applied to the trial of summary offences
  • Whether the penalties imposed were appropriate for the environmental offences established

Decision

Ground 1: Sufficiency of the summonses

Mason P, with whom Dowd J agreed, held that the summonses were adequate to put the appellant on notice of the charges he faced. His Honour accepted that the conditions in the development consent, read with the approved landscape plan, impliedly prohibited removal of the pine trees. Although Mason P offered some criticism of the form of the charges, he concluded that the summonses contained sufficient factual particulars to identify the essential ingredients of each offence.

Austin J agreed in the result but reasoned differently on one point. In his view, it was unnecessary to invoke s 76(2) of the Act to establish liability under s 125(1). The conditions in the development consent were, on their proper construction, directions by the Council to the appellant. An owner who causes a development consent to be implemented contrary to its conditions can be said to have "offended against" those directions without any need to plead or rely on s 76(2).

Ground 2: Application of Fleming v R

The court held that the rule in Fleming v R, which addresses the sufficiency of criminal indictments, does not apply to the trial of summary offences. This ground therefore failed.

Penalties

No error was established in the penalties imposed. The fines of $3,000 and $1,500 respectively were upheld as appropriate for the environmental contraventions found.

Orders Made

  • Appeal dismissed

Key Takeaways

  • A summons charging an offence under s 125 of the Environmental Planning and Assessment Act 1979 is sufficient if it identifies the relevant development consent, the conditions breached, and the factual basis for the alleged breach with enough specificity to put the defendant on notice.
  • Under s 125(1) of the Act, conditions in a development consent can constitute "directions or prohibitions" by the authorised council, meaning liability does not necessarily require pleading or invoking s 76(2) of the Act (per Austin J).
  • Where a development consent owner causes the consent to be implemented contrary to its conditions, that conduct can amount to "offending against" the directions or prohibitions contained in those conditions.
  • The rule in Fleming v R concerning the sufficiency of indictments does not apply to the trial of summary offences in NSW.
  • In dismissing the appeal, the Court of Criminal Appeal confirmed that penalties for environmental offences of this kind, including fines totalling $4,500 for tree removal and failure to protect a retained tree, were within the appropriate range.

Legislation and Cases Referenced

Legislation:
- Environmental Planning and Assessment Act 1979 (NSW), ss 76(2), 125
- Criminal Appeal Act 1912 (NSW), s 5AB
- Canterbury Planning Scheme Ordinance

Cases:
- Ex parte Lovell; re Buckley (1938) 38 SR(NSW) 153
- John L Pty Ltd v Attorney-General (NSW) (1987) 163 CLR 508
- Hornsby Shire Council v Winsloe (1998) 101 LGERA 117
- Cooper v Coffs Harbour City Council (1997) 97 LGERA 125
- Fleming v R (citation not stated in provided text)