Wyong Shire Council v Deemay Enterprises Pty Ltd [2002] NSWLEC 28

Wyong Shire Council v Deemay Enterprises Pty Ltd [2002] NSWLEC 28

The prosecution failed to prove beyond reasonable doubt that removal of the tree was not exempt as 'dead or dangerous... posing an immediate threat to life or property' and failed to disprove the defendant's honest and reasonable mistake of fact; accordingly, the defendant is not guilty and the charge is dismissed.

Parties
Prosecutor: Wyong Shire Council; Defendant: Deemay Enterprises Pty Ltd
Jurisdiction
Australia
Judgment Date
15 March 2002
Procedural Posture
Prosecution / Judgment
Outcome
Charge dismissed; defendant found not guilty.
Legal Topics
Tree Removal, Development Consent, Exempt Works, Honest and Reasonable Mistake of Fact
Environmental Law Local Government Tree Removal Development Consent Exempt Works Honest and Reasonable Mistake of Fact

Case Brief

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Parties

Wyong Shire Council

Prosecutor

Deemay Enterprises Pty Ltd

Defendant

Procedural Posture

Prosecution / Judgment

Legal Issues

  1. 1 Whether removal of a tree without Council consent was an offence under s 125 Environmental Planning and Assessment Act 1979 and Wyong LEP 1991
  2. 2 Whether the removal was exempt as 'exempt vegetation management works' under LEP cl 28(3)(j)
  3. 3 Whether the defendant had an honest and reasonable mistake of fact

Ratio Decidendi

The prosecution failed to prove beyond reasonable doubt that removal of the tree was not exempt as 'dead or dangerous... posing an immediate threat to life or property' and failed to disprove the defendant's honest and reasonable mistake of fact; accordingly, the defendant is not guilty and the charge is dismissed.

Court Disposition

Charge dismissed; defendant found not guilty.

Orders

  • The defendant is found not guilty of the charge in the summons.
  • The summons is dismissed.