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Court of Criminal Appeal 5 July 2006

Anthony Tauszik v Gosford City Council

[2006] NSWCCA 193

Other
CRIMINAL LAW APPEAL LIMITATION PERIOD WHETHER PROCEEDINGS STATUTE BARRED WHETHER OFFENCE VALIDLY CREATED CRIMINAL LAW

Citation: Anthony Tauszik v Gosford City Council [2006] NSWCCA 193
Court: New South Wales Court of Criminal Appeal
Date: 5 July 2006
Judges: Tobias JA, James J, Hoeben J

Background

The appellant was charged by summons with cutting down and removing three Norfolk Island Pine trees at a Pearl Beach property in June 2002, without obtaining the consent of Gosford City Council. The charge was brought under s 125 of the Environmental Planning and Assessment Act 1979 (the EPA Act), on the basis that the removal was forbidden by Clause 44 of the Gosford Planning Scheme Ordinance (GPSO), an environmental planning instrument. The particulars alleged that the trees were the subject of a tree preservation order made by the Council under Clause 44.

The Council filed its summons in January 2003, approximately seven months after the alleged offence. The appellant argued the proceedings were statute-barred by the six-month limitation period in s 127(5) of the EPA Act. The Council countered that a 12-month limitation period applied under s 127(6), which covered development carried out without consent where consent was required.

At first instance in the Land and Environment Court, McClellan CJ found the offence proved in respect of two of the three trees and imposed a fine. The appellant appealed to the Court of Criminal Appeal on three grounds: the statute bar, whether the evidence supported the conviction, and whether a valid tree preservation order was in force at the time.

  • Whether the summons was filed outside the applicable limitation period under s 127 of the EPA Act, rendering the proceedings statute-barred
  • Whether the longer 12-month limitation period (for development carried out without consent) applied, or only the standard six-month period
  • Whether Clause 44 of the GPSO itself prohibited the cutting down of trees, or merely authorised the Council to make a tree preservation order that imposed such a prohibition
  • Whether the offence therefore fell under the first limb of s 125(1) (prohibition created "by or under" the EPA Act) or the second limb (prohibition created by a council under the authority of the Act)
  • Whether the relevant tree preservation order was still in force at the date of the alleged offence

Decision

The central question was which limitation period applied, and the answer turned on how the prohibition against removing the trees was legally sourced. Section 127(6) extended the limitation period to 12 months only for offences involving development carried out without development consent under s 76A(1). That provision is engaged only where an environmental planning instrument itself prohibits specified development from being carried out without consent.

The Court found that Clause 44 of the GPSO did not itself impose any prohibition on cutting down trees. It merely authorised the Council to make a tree preservation order, and it was that order (not the GPSO) that contained the operative prohibition. A prohibition residing only in a tree preservation order made under an environmental planning instrument does not become a prohibition contained in the instrument itself for the purposes of s 76A(1).

Because the prohibition derived from the tree preservation order made by the Council rather than directly from the GPSO, the offence fell under the second limb of s 125(1): it was an offence "forbidden to be done by the Council so authorised by or under" the EPA Act. That classification meant the 12-month limitation period in s 127(6) did not apply, and only the standard six-month period under s 127(5) was available.

Since the summons was filed approximately seven months after the alleged offence, the proceedings were statute-barred and the conviction could not stand. The Court rejected the appellant's other two grounds of appeal, finding the trial judge's factual conclusions on the remaining trees and the validity of the tree preservation order were not in error. The first ground alone was sufficient to quash the conviction.

Orders Made

  • Appeal allowed
  • Conviction of the appellant by McClellan CJ on 22 April 2005 quashed; orders imposing a fine and other consequential orders (including costs) set aside
  • Summons filed on 16 January 2003 dismissed
  • Respondent to pay the appellant's costs of the summons in the Land and Environment Court

Key Takeaways

  • A contravention of s 76A(1) of the EPA Act can only arise where the relevant environmental planning instrument itself provides that specified development may not be carried out without development consent; it is not sufficient that the instrument authorises a council to make an order that then imposes such a prohibition.
  • Where the operative prohibition against removing trees is contained in a tree preservation order made by a council, rather than in the environmental planning instrument itself, the offence falls under the second limb of s 125(1) of the EPA Act (council-created prohibition), not the first limb (statutory prohibition).
  • The Court of Criminal Appeal confirmed that the 12-month limitation period in s 127(6) applies only to offences involving development carried out without consent as required under s 76A(1), and does not extend to offences arising from prohibitions created solely by a council's tree preservation order.
  • In dismissing the summons as statute-barred, the Court applied the principle that the clear words of s 76A(1) are not satisfied merely because an environmental planning instrument is the indirect source of a prohibition by authorising a council to create one.
  • Under s 127(5) of the EPA Act, the standard six-month limitation period applies to offences created under the second limb of s 125(1), and proceedings commenced outside that period cannot be saved by invoking the extended period in s 127(6).

Legislation and Cases Referenced

Legislation:
- Environmental Planning and Assessment Act 1979 (NSW), ss 76A, 125, 127
- Criminal Appeal Act 1912 (NSW)
- Gosford Planning Scheme Ordinance, Clause 44

Cases:
- Butler v Attorney-General for Victoria (1961) 106 CLR 268
- Cameron v Lake Macquarie City Council (2000) 107 LGERA 308
- Chin v Ryde City Council (2004) 133 LGERA 312
- Gosford City Council v Tauszik [2003] NSWLEC 183; [2003] NSWLEC 266; [2003] NSWLEC 354
- Hornsby Shire Council v Clyne (Unreported, 29 October 1998)
- Hornsby Shire Council v Winslow (1998) 101 LGERA 117
- Meriton Apartments Pty Ltd v Ryde City Council (Unreported, 30 April 1998)
- Saraswati v The Queen (1991) 172 CLR 1