Burwood Council v Jarvest Pty Ltd [2011] NSWLEC 109

Burwood Council v Jarvest Pty Ltd [2011] NSWLEC 109

Because the defendant deliberately removed 13 protected, mature and healthy trees without Council consent despite clear notice of the tree preservation order, without obtaining Council assistance or expert evidence that the trees were dangerous, and because the environmental harm would not be repaired for some years, a substantial fine was required. Mitigating factors justified a 25% discount from a $60,000 fine, resulting in a $45,000 fine, together with conviction, costs and an order to maintain replacement trees to maturity.

Jurisdiction
Australia
Judgment Date
27 June 2011
Procedural Posture
Class 5 Prosecution for Development Without Consent Involving Breach of a Tree Preservation Order / Sentence After Plea of Guilty
Outcome
Defendant convicted and sentenced to a fine, costs, and tree maintenance order.
Legal Topics
['development Without Consent' 'tree Preservation Order' 'removal of Protected Trees' 'sentencing Considerations' 'remediation' 'fine and Costs']
['environmental Planning and Assessment' 'criminal Sentencing' 'local Government Tree Preservation'] ['development Without Consent' 'tree Preservation Order' 'removal of Protected Trees' 'sentencing Considerations' 'remediation' 'fine and Costs']

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Procedural Posture

Class 5 Prosecution for Development Without Consent Involving Breach of a Tree Preservation Order / Sentence After Plea of Guilty

Legal Issues

  1. 1 ["What penalty should be imposed for cutting down 13 native tallow wood eucalyptus trees protected by Council's tree preservation order without written consent." 'Whether aggravating factors applied because the defendant acted for financial advantage or convenience and engaged in planned or organised tree removal.' 'Whether mitigating factors, including concern about falling limbs, clean environmental record, early guilty plea, remorse, cooperation, community commitment and remedial planting, warranted reduction of penalty.' 'Whether an order under ss 9 or 10 of the Crimes (Sentencing Procedure) Act 1999 should be considered instead of a substantial fine.' 'Whether the defendant had capacity to pay an appropriately discounted fine.']

Ratio Decidendi

Because the defendant deliberately removed 13 protected, mature and healthy trees without Council consent despite clear notice of the tree preservation order, without obtaining Council assistance or expert evidence that the trees were dangerous, and because the environmental harm would not be repaired for some years, a substantial fine was required. Mitigating factors justified a 25% discount from a $60,000 fine, resulting in a $45,000 fine, together with conviction, costs and an order to maintain replacement trees to maturity.

Court Disposition

Defendant convicted and sentenced to a fine, costs, and tree maintenance order.

Orders

  • ['The defendant is convicted of the offence charged in the summons.' 'The defendant is ordered to pay a fine of $45,000.' "The defendant is ordered to pay the prosecutor's costs, as agreed or assessed." 'The defendant is ordered to maintain to maturity the replacement trees it planted in May 2011, and the prosecutor...