Case note: Hawkesbury City Council v Saed

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Case note: Hawkesbury City Council v Saed

By Elizabeth Laurie and Alyce Kliese

Hawkesbury City Council v Saed [2022] NSWLEC 34 demonstrates that removing trees without a permit can be an expensive mistake for the individual and the environment. It also highlights the importance of seeking advice if you are unsure about whether a permit is required to remove trees.

The Facts

In 2019, the defendant removed 20 trees at a property in Ebenezer, a town in the Hawkesbury region of NSW. The property was owned by the defendant’s then girlfriend who offered the defendant a weekly payment to undertake general gardening duties, including the removal of dead trees.

In May 2019, the defendant, accompanied by their brother and cousin, removed 20 trees they believed to be dead. Of the 20 trees that the defendant removed, 19 were healthy and only 1 was dead. The defendant did not obtain development consent or a permit to remove the trees, as required under section 4.2 of the Environmental and Planning Act 1979 (NSW) (EPA Act) and clauses 7 and 9 of the State Environmental Planning Policy (Vegetation in Non-Rural Areas) 2017 (the SEPP). The defendant was subsequently charged by Hawkesbury City Council (Council)with a criminal offence for removing the trees without approval, pursuant to section 9.51 of the EPA Act.

The law

The Crimes (Sentencing Procedure) Act 1999 (NSW) (CSP Act) is the legislative framework the Court used to determine the appropriate penalty to be imposed on the defendant. Under the CSP Act, the Court is required to consider any aggravating factors, such as whether the offender has previous convictions, and mitigating factors, such as whether the offender is of good character. These aggravating and mitigating factors are listed in section 21A(2)-(3) of the CSP Act.

The onus is on the prosecutor (in this instance, Council) to prove beyond reasonable doubt any of the aggravating factors. The defendant bears the onus of establishing the mitigating factors on the balance of probabilities.  The Court then determines the appropriate sentence by identifying and assessing the significance of all the circumstances of the case.

Additionally, it is important to know that an offender who provides an early plea of guilty is entitled to a lesser penalty than would otherwise be imposed, pursuant to section 21A(3)(k) and section 22 of the CSP Act.

What the Court said

In this matter the Court noted that the sentence imposed on the offender must be:

….. proportionate to both the objective seriousness or gravity of the offence and the offender’s subjective circumstances.

The Court determined that the appropriate monetary penalty for the offence was $18,750. In determining this penalty, the Court took into account the defendant’s early guilty plea.  This entitled the defendant to a 25% discount off the original penalty amount of $25,000. The Court also considered the objective seriousness of the offence and the subjective circumstances of the defendant.

  1. The Objective Seriousness of the Offence

The Court identified the following seven factors which were relevant to determining the objective seriousness of the offence:

(a) The nature of the offence;

(b) The maximum penalty under the Act establishing the offence;

(c) The defendant’s state of mind in the commission of the offence;

(d) The environmental harm caused or likely to be caused by the commission of the offence;

(e) The reasonable foreseeability of the harm caused or likely to be caused to the environment by the commission of the offence;

(f) The practical measures to prevent environmental harm;

(g) The defendant’s control over the causes giving rise to the offence; and

(h) The defendant’s reasons for committing the offence.

The Court considered each of these factors individually and applied them to the context of the case.

In terms of the nature of the offence, the Court stated that the type of offence was contrary to the objects of the EPA Act and the SEPP and undermined the integrity of the planning regime in NSW.

Regarding the defendant’s state of mind, the Court held that it was not satisfied beyond reasonable doubt that the defendant’s conduct fell significantly short of the standards of care expected of a reasonable person in the defendant’s position, being a person that was not a professional arborist and did not hold qualifications in gardening, landscaping or horticulture.

In terms of the environmental harm caused by the offence, the Court found that the removal of the trees caused actual substantial harm and potential harm for the following reasons:

(a) 19 of the trees were a feed tree species for Koalas, which are a threatened species under the Biodiversity Conservation Act 2016 (NSW); and

(b) The removal of the 19 healthy trees caused the destruction of habitats for Koalas, Yellow-Bellied Gliders and some micro bat species.

The Court noted that this type of environmental harm was also reasonably foreseeable.

Importantly, the Court held that the defendant did not take any practical measures to prevent such environmental harm, such as enquiring about whether a permit was required to remove the trees. The Court also found that the defendant had complete control over the causes giving rise to the offence and that there was no evidence that the removal of the trees benefitted the defendant or were removed to gain a financial advantage.

In assessing all the objective circumstances, the Court at paragraph [63] concluded that:

Having regard to my finding that [the defendant] did not commit the offence negligently but that the commission of the offence occasioned substantial actual and potential environmental harm, I am satisfied that the commission of the offence was of moderate to low objective seriousness.

  1. The Subjective Circumstances of the Defendant

 The Court then identified the following five factors that were relevant to assessing the subjective circumstances:

(a) Contrition and remorse;

(b) Early plea of guilty;

(c) Assistance to authorities;

(d) The character of the defendant; and

(e) Prior convictions.

The Court acknowledged that the defendant had expressed genuine contrition and remorse and had entered a guilty plea at their earliest opportunity. The defendant also assisted Council, the authority in this case, at all stages, from the initial interview with Council, to the preparation of an agreed statement of facts. The Court also found that the defendant was of good character and had no prior convictions.

Key Takeaways

  1. If you are unsure about whether a permit is required to remove trees from your property or someone else’s property, you should seek appropriate advice; and
  2. Removing trees without a permit is a strict liability offence, meaning that even if you accidentally or mistakenly remove trees that require a permit to be removed, the Court still has the power to impose a substantial penalty.