City of Canada Bay Council v Frank Edward Bird; City of Canada Bay Council v Michael John Christopher [2003] NSWLEC 9

City of Canada Bay Council v Frank Edward Bird; City of Canada Bay Council v Michael John Christopher [2003] NSWLEC 9

The Model Provisions defence did not apply because the proceedings were brought under the Tree Preservation Order, and the defendants failed to establish the Tree Preservation Order exemption because the Body Corporate had not given written consent to remove the trees. The Court also found beyond reasonable doubt that the trees were not dead as defined in the Tree Preservation Order. The honest and reasonable mistake defence failed because neither defendant had an honest and reasonable belief that written consent existed or that the trees were dead. The prosecution proved the essential elements beyond reasonable doubt, including that Mr Christopher lopped the trees and that Mr Bird was...

Jurisdiction
Australia
Judgment Date
07 February 2003
Procedural Posture
Environmental Offence Prosecution Under S 125(1) of the Environmental Planning and Assessment Act 1979 for Lopping Trees Without Consent Contrary to a Tree Preservation Order / Defended Hearing on Liability; Judgment Convicting Both Defendants With Penalty to Be Heard Later
Outcome
Both defendants convicted of the offences as charged; penalty reserved for later hearing.
Legal Topics
['tree Preservation Order' 'lopping Trees Without Consent' 'strict Liability Environmental Offences' 'statutory Exemptions' 'honest and Reasonable Mistake of Fact' 'written Consent of Owner' 'dead or Dying Trees']
['environmental Law' 'planning Law' 'criminal Law'] ['tree Preservation Order' 'lopping Trees Without Consent' 'strict Liability Environmental Offences' 'statutory Exemptions' 'honest and Reasonable Mistake of Fact' 'written Consent of Owner' 'dead or Dying Trees']

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Procedural Posture

Environmental Offence Prosecution Under S 125(1) of the Environmental Planning and Assessment Act 1979 for Lopping Trees Without Consent Contrary to a Tree Preservation Order / Defended Hearing on Liability; Judgment Convicting Both Defendants With Penalty to Be Heard Later

Legal Issues

  1. 1 ['Whether each defendant lopped or caused the lopping of trees forbidden to be lopped without consent under the Drummoyne Council Tree Preservation Order.' 'Whether the defence in cl 8(6) of the Environmental Planning and Assessment Model Provisions 1980 applied to proceedings brought under the Tree Preservation Order.' 'Whether the defendants established the exemption in cl 7 of the Tree Preservation Order by proving written owner consent and that the trees were dead as defined.' 'Whether the defendants had an honest and reasonable mistaken belief that written consent existed and that the trees were dead.' 'Whether environmental damage resulted from removal of the trees for the purpose of penalty.']

Ratio Decidendi

The Model Provisions defence did not apply because the proceedings were brought under the Tree Preservation Order, and the defendants failed to establish the Tree Preservation Order exemption because the Body Corporate had not given written consent to remove the trees. The Court also found beyond reasonable doubt that the trees were not dead as defined in the Tree Preservation Order. The honest and reasonable mistake defence failed because neither defendant had an honest and reasonable belief that written consent existed or that the trees were dead. The prosecution proved the essential elements beyond reasonable doubt, including that Mr Christopher lopped the trees and that Mr Bird was...

Court Disposition

Both defendants convicted of the offences as charged; penalty reserved for later hearing.

Orders

  • ['In matter No 50136 of 2001, the defendant, Frank Edward Bird, is convicted of the offence as charged.' 'In matter No 50136 of 2001, parties be at liberty to obtain a date for the hearing of penalty.' 'In matter No 50137 of 2001, the defendant, Michael John Christopher, is convicted of the offence as charged.' 'In...