Pittwater Council v A1 Professional Tree Recycling Pty Ltd (No 2) [2008] NSWLEC 326

Pittwater Council v A1 Professional Tree Recycling Pty Ltd (No 2) [2008] NSWLEC 326

The prosecution case was confined to the first limb of the definition of "bushland". The evidence, including aerial photographs, indicated that vegetation on the land had been cleared by 1947 and therefore had been altered by humans, or at least raised a reasonable doubt whether it was altered by humans rather than natural causes. The first limb of the definition was therefore inapplicable, or at least reasonably doubtful, so the defendant could not lawfully be convicted on the prosecution case and there was no case to answer.

Jurisdiction
Australia
Judgment Date
16 December 2008
Procedural Posture
Prosecution for Alleged Unlawful Clearing of Bushland Contrary to a Council Tree Preservation Order and S 125(1) of the Environmental Planning and Assessment Act 1979 / No Case to Answer Submission at the Close of the Prosecution Case; Ex Tempore Judgment
Outcome
Defendant's no case to answer submission upheld; summons dismissed.
Legal Topics
['tree Preservation Order' 'unlawful Clearing of Bushland' 'definition of Bushland' 'no Case to Answer' 'construction of Penal Provisions']
['environmental Law' 'planning Law' 'criminal Procedure'] ['tree Preservation Order' 'unlawful Clearing of Bushland' 'definition of Bushland' 'no Case to Answer' 'construction of Penal Provisions']

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Procedural Posture

Prosecution for Alleged Unlawful Clearing of Bushland Contrary to a Council Tree Preservation Order and S 125(1) of the Environmental Planning and Assessment Act 1979 / No Case to Answer Submission at the Close of the Prosecution Case; Ex Tempore Judgment

Legal Issues

  1. 1 ['Whether the defendant had no case to answer on a charge of cutting down, injuring and wilfully destroying bushland without council consent.' 'Whether the cleared vegetation fell within the first limb of the definition of "bushland" in the Pittwater Tree Preservation and Management Order 1996 as "a remainder of the natural vegetation of the land".' 'Whether evidence that the land had been cleared by 1947 meant the vegetation had been "altered" by humans and therefore could not fall within the first limb of the definition.']

Ratio Decidendi

The prosecution case was confined to the first limb of the definition of "bushland". The evidence, including aerial photographs, indicated that vegetation on the land had been cleared by 1947 and therefore had been altered by humans, or at least raised a reasonable doubt whether it was altered by humans rather than natural causes. The first limb of the definition was therefore inapplicable, or at least reasonably doubtful, so the defendant could not lawfully be convicted on the prosecution case and there was no case to answer.

Court Disposition

Defendant's no case to answer submission upheld; summons dismissed.

Orders

  • ["The defendant's submission that there is no case to answer is upheld." 'The summons is dismissed.' 'The exhibits may be returned.' 'Costs are reserved.']