Citation: Shoalhaven City Council v De Battista [2020] NSWLC 11
Court: Local Court of New South Wales
Date: 19 February 2020
Judge: Farnan LCM
Background
The defendant was the registered proprietor of land at St Georges Basin, south of Sydney. Between 19 and 24 November 2016, 24 trees were knocked over on that land, either by the defendant personally or by servants, agents, or contractors acting on his behalf.
Shoalhaven City Council prosecuted the defendant under section 76A(1)(b) of the Environmental Planning and Assessment Act 1979 (NSW), alleging he carried out development not in accordance with a development consent. The relevant consent, SF10111, was a subdivision consent containing condition 10, which required the retention of specified trees. The prosecution alleged none of the 24 trees fell within the permitted exceptions under that condition.
The land had a complex planning history. Multiple development consents had been granted over the years, each containing its own tree-protection conditions in varying terms. A central dispute was whether an earlier consent authorising some vegetation clearing could excuse the conduct, and, if so, who bore the onus of proving whether the clearing was lawful under that earlier consent.
Legal Issues
- What are the elements of an offence under section 76A(1)(b) of the Environmental Planning and Assessment Act 1979 where development consent has been obtained but the development is alleged to have been carried out not in accordance with that consent?
- Where more than one development consent is in force over the same land, and a defendant claims that conduct was authorised by a consent other than the one alleged in the charge, on which party does the onus of proof lie?
- Whether the tree removal that occurred was carried out in accordance with the applicable development consent, having regard to specific conditions requiring environmental supervision, wildlife handlers, and prescribed clearing methods.
Decision
Elements of the offence and onus of proof
The Magistrate accepted the framework set out in North Sydney Council v Moline [2008] NSWLEC 169, which identifies the elements as: the defendant is a person who carried out development; that an environmental planning instrument provides may not be carried out without consent; and that it was carried out otherwise than in accordance with a consent that had been obtained and is in force. The prosecution bore the onus of establishing each element beyond reasonable doubt.
The competing consents argument
The defendant argued that an earlier consent, the Manufactured Home Estate consent from 2001, remained in force and may have authorised the clearing. The Magistrate addressed whether the prosecution needed to negative this possibility or whether the defendant carried the burden of establishing it. After considering the competing authorities, the Magistrate proceeded on the basis that the prosecution was required to prove the charged offence, including that the conduct was not in accordance with the relevant consent, but the specific findings on compliance made this question determinative in any event.
Non-compliance with the relevant consent
The Magistrate found the clearing was plainly not carried out in accordance with the requirements of the second subdivision consent, SF10111, and its associated conditions. Conditions 15, 20, 21, and 26 required, among other things, written notice of engagement of a suitably qualified environmental consultant before works commenced, on-site supervision by that consultant throughout, a licensed wildlife handler present during tree removal, and the use of specialist equipment such as a cherry picker or crane for hollow-bearing trees. There was no evidence of any of these steps being taken. Eye witnesses to the tree removal observed no such personnel or equipment on site. The Magistrate was satisfied beyond reasonable doubt that the clearing was not done in accordance with the consent.
The offence was accordingly found proved.
Orders Made
• The offence is proved
Key Takeaways
- A prosecution under section 76A(1)(b) of the Environmental Planning and Assessment Act 1979 requires proof, beyond reasonable doubt, that the defendant carried out development otherwise than in accordance with a development consent that had been obtained and was in force, consistent with the elements identified in North Sydney Council v Moline [2008] NSWLEC 169.
- The offence is one of strict liability: the defendant's intention is generally irrelevant, and no issue of honest and reasonable mistake of fact arises.
- Where a development consent imposes detailed procedural conditions, such as engagement of qualified environmental consultants and on-site wildlife handlers, compliance with those conditions is part of carrying out development "in accordance with" the consent; failing to meet them can ground a conviction regardless of whether some tree removal was otherwise permitted.
- The existence of multiple overlapping development consents over the same land adds complexity to these prosecutions, requiring careful identification of which consent governs the alleged conduct and what its specific conditions require.
- Absent any evidence that required supervisory personnel, licensed handlers, or specialist equipment were present during clearing works, a court may draw an available inference from eye-witness accounts that conditions mandating such measures were not complied with.
Legislation and Cases Referenced
Legislation
- Environmental Planning and Assessment Act 1979 (NSW), ss 76A(1)(b) (as in force at the time), 4.2(1)(b), 125(1)
- Interpretation Act 1987 (NSW)
Cases
- North Sydney Council v Moline and anor (no 2) [2008] NSWLEC 169
- Wollongong City Council v Ensile P/L and anor (no 8) [2008] NSWLEC 232
- Canterbury Bankstown Council v Sydney Tools Proprietary Limited [2019] NSWLEC 103