Shoalhaven City Council v De Battista [2020] NSWLC 11

Shoalhaven City Council v De Battista [2020] NSWLC 11

The defendant, as the registered proprietor, either personally or by his agents, knocked over 24 trees on Lot 1 between 19 and 24 November 2016. None of these trees fell within any permitted exception under the operative development consents, particularly condition 10 of SF10111. No other consent or approval authorised their removal. The prosecution proved beyond reasonable doubt each element of the offence of carrying out development otherwise than in accordance with development consent.

Parties
Prosecutor: Shoalhaven City Council; Defendant: David John De Battista
Jurisdiction
Australia
Judgment Date
19 February 2020
Procedural Posture
Criminal / Principal Judgment
Outcome
Offence proved
Legal Topics
Unauthorised Development, Tree Removal, Development Consent, Onus of Proof
Environmental Law Criminal Law Unauthorised Development Tree Removal Development Consent Onus of Proof

Case Brief

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Parties

Shoalhaven City Council

Prosecutor

David John De Battista

Defendant

Procedural Posture

Criminal / Principal Judgment

Legal Issues

  1. 1 Whether the defendant unlawfully removed 24 trees in contravention of development consent
  2. 2 What development consents were operative at the relevant time and their conditions regarding tree removal
  3. 3 Whether the prosecution satisfied the onus of proof beyond reasonable doubt for each element of the alleged offence

Ratio Decidendi

The defendant, as the registered proprietor, either personally or by his agents, knocked over 24 trees on Lot 1 between 19 and 24 November 2016. None of these trees fell within any permitted exception under the operative development consents, particularly condition 10 of SF10111. No other consent or approval authorised their removal. The prosecution proved beyond reasonable doubt each element of the offence of carrying out development otherwise than in accordance with development consent.

Court Disposition

Offence proved

Orders

  • Defendant found guilty of breach of s 76A(1)(b) Environmental Planning and Assessment Act 1979 (NSW) concerning removal of 24 trees.