The Council of the City of Gosford v Tauszik [2005] NSWLEC 183

The Council of the City of Gosford v Tauszik [2005] NSWLEC 183

The 1985 tree preservation order remained operative and prohibited removal of the relevant trees without council approval. The removal was development controlled by an environmental planning instrument and could found an offence under the first limb of s 125(1) of the Environmental Planning and Assessment Act 1979. On the facts, consent could be assumed for only the northernmost removed tree because the prosecutor did not prove it was outside the three metre policy exception. For the other two removed trees, the evidence showed their branches were well in excess of three metres from the adjoining dwelling. The prosecution also proved beyond reasonable doubt that the defendant did not hold...

Jurisdiction
Australia
Judgment Date
07 March 2005
Procedural Posture
Environmental Offence Prosecution Under S 125 of the Environmental Planning and Assessment Act 1979 / Judgment After Hearing; Defendant's Motion for Summary Dismissal or Stay Also Determined
Outcome
Offence proved for two of the three trees; defendant's motion for summary dismissal or stay dismissed.
Legal Topics
['tree Preservation Order' 'removal of Trees Without Consent' 'development Consent' 'honest and Reasonable Mistake' 'statutory Construction' 'stay of Proceedings']
['environmental Planning Law' 'criminal Law'] ['tree Preservation Order' 'removal of Trees Without Consent' 'development Consent' 'honest and Reasonable Mistake' 'statutory Construction' 'stay of Proceedings']

Case Brief

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Procedural Posture

Environmental Offence Prosecution Under S 125 of the Environmental Planning and Assessment Act 1979 / Judgment After Hearing; Defendant's Motion for Summary Dismissal or Stay Also Determined

Legal Issues

  1. 1 ['Whether a valid and operative tree preservation order prohibited the removal of the trees.' 'Whether the alleged conduct fell within the first limb of s 125(1) of the Environmental Planning and Assessment Act 1979.' 'Whether council consent could be assumed under cl 6.1 of the Landscape and Vegetation Management Policy because the trees were within three metres of an approved building.' 'Whether the defendant had an honest and reasonable mistaken belief that consent was not required.' "Whether the defendant's motion for summary dismissal or stay should be dismissed."]

Ratio Decidendi

The 1985 tree preservation order remained operative and prohibited removal of the relevant trees without council approval. The removal was development controlled by an environmental planning instrument and could found an offence under the first limb of s 125(1) of the Environmental Planning and Assessment Act 1979. On the facts, consent could be assumed for only the northernmost removed tree because the prosecutor did not prove it was outside the three metre policy exception. For the other two removed trees, the evidence showed their branches were well in excess of three metres from the adjoining dwelling. The prosecution also proved beyond reasonable doubt that the defendant did not hold...

Court Disposition

Offence proved for two of the three trees; defendant's motion for summary dismissal or stay dismissed.

Orders

  • ['The motion for summary dismissal or stay is dismissed.']