The Land and Environment Court of NSW has fined a property developer and demolition contractor a combined total of $155,000 for the illegal clearing of 21 trees in a heritage conservation area in Epping.
City of Parramatta Council (Council) successfully established that the illegal clearing caused substantial harm to the environment and that the developer, Grand Epping Pty Ltd (Grand Epping), intentionally caused the removal of trees by their contractor.
The Court imposed a fine of $100,000 on Grand Epping and a fine of $55,000 on their contractor, Sydney Trees Excavation and Demolition Pty Ltd (Sydney Trees). The Court also ordered Grand Epping to carry out replacement planting on the relevant site.
The site contained remnant Sydney Turpentine lronbark Forest, which is listed as a critically endangered ecological community under the Biodiversity Conservation Act 2016. One of the trees illegally removed was part of this critically endangered ecological community.
Grand Epping had obtained development consent for the subdivision of the site into three lots. Although the arborist report accompanying the development application sought the removal of 25 trees, the consent expressly permitted the removal of one tree only.
Grand Epping submitted that the removal of the trees was not intentional, that the trees were marked for removal by Mr Yee (a director of Grand Epping) after he mistakenly consulted the arborist report and that he anticipated the contractor would obtain any further approvals required to remove the trees.
Rejecting the submission of Grand Epping, the Court found that Grand Epping acted intentionally in procuring the removal of the trees for reasons including the following:
- Mr Yee was an experienced developer with a sophisticated understanding of development consents. He was familiar with the consent and knew of the existence of the condition approving the removal of one tree only;
- a project manager for Grand Epping obtained two quotes for tree removal from another contractor: the first for tree removal authorised by the consent and a second for the removal of all trees marked by Mr Yee;
- Grand Epping amended their development application from a four lot to a three lot subdivision after Council expressed concerns about the unacceptable proposed removal of trees;
- Grand Epping was put on notice of unauthorised tree removal from the site in early October 2018 and took no action. Further trees were removed from the site after this date; and
- any assertion that Sydney Trees had been engaged to obtain the necessary approvals for the tree removal was inconsistent with the scope of works and quote from Sydney Trees, both of which made it clear that this had not occurred.
The Court concluded that “there is no doubt whatsoever that Grand Epping was aware that the removal of additional trees was not permitted at the time of their removal.”
The result is an excellent outcome for Council and should serve as a deterrent for other developers and contractors.
HWL Ebsworth acted for City of Parramatta Council in City of Parramatta Council v Grand Epping Pty Ltd  NSWLEC 70 and City of Parramatta Council v Sydney Trees Excavation and Demolition Pty Ltd  NSWLEC 71.
This article was written by Danielle Le Breton, Partner, Jane Hewitt, Partner, and Dane Johnson, Law Graduate.