So you want to cut down trees without approval? Fine!

HWL Ebsworth Lawyers recently acted for Hunters Hill Council in two successful criminal prosecutions for unlawful tree removal. The cases were:

• Hunters Hill Council v Carter [2018] NSWLEC 84; and
• Hunters Hill Council v Liu [2018] NSWLEC 108.

The Council’s prosecution of Carter related to 13 healthy native tree species ranging in height from 3 to 10 metres which were cut down and lopped on residential land owned by the defendant, near Buffalo Creek. Seven of the trees were cut down to near ground level and 6 had their branches lopped, with 3 of the trees ultimately dying.

The circumstances surrounding the cutting down and lopping of the trees involved an unknown tree lopper knocking on the defendant’s door on several occasions soliciting for tree removal work. On the date of the offence the unknown tree lopper arrived at the defendant’s house and asked for work. The defendant then led the lopper around the property and pointed out the trees he wanted to be cut down and lopped. The defendant asked the lopper if approval was required to cut down the trees, with the lopper stating that no approval from the Council was required. No enquiries were made with the Council by the defendant about whether Council approval was required or not, though if such enquiries had been made they would have revealed that approval was in fact required.

The sentencing hearing occurred on 14 May 2018 in the Land and Environment Court before Moore J. The sentence imposed was, in summary:

• A $45,000 fine;
• The defendant to pay the Councils costs in the agreed sum of $30,000; and
• Tree maintenance orders in relation to the health and integrity of the trees which were cut down or lopped which did not die.

Some key findings of the Court included:

• The environmental harm was substantial and was therefore to be regarded as an aggravating factor in the sentencing process; and
• The defendant was reckless, an aggravating factor in the sentencing process, in that the Court found he believed or suspected that the tree removal was unlawful but nonetheless proceeded to authorise the tree lopper to cut down the trees.

The Council’s prosecution of Liu related to 2 healthy Cheese Trees which were cut down by contractors who were engaged by the defendant, also near Buffalo Creek. The trees had an estimated height of 12 to 15 metres and canopy spread radius of 5 metres. The trees were located on the neighbouring property. On the date of the offence the contractors attended at the defendant’s property and the adjoining land and cut down the trees. The defendant was present whilst the trees were being cut down. Council officers attended at the property upon being alerted of what was happening, and the works were requested to cease.

The sentencing hearing occurred on 8 June 2018 in the Land and Environment Court, with the matter also heard by Moore J. In summary, the sentence imposed comprised the following:

• A $48,000 fine;
• The defendant to pay the Council’s costs in the agreed sum of $35,000; and
• Orders requiring in summary replanting and ongoing maintenance of two new cheese trees.

Some key findings of the Court included:

• The environmental harm was substantial and was therefore to be regarded as an aggravating factor in the sentencing process;
• The defendant’s conduct was deliberate which comprised an additional aggravating factor. There were three reasons which caused the Court to reach this conclusion, which were that:
  • the defendant had previously contacted the Council in relation to cutting down trees;
  • the defendant had previously applied for and obtained approval to cut down trees and therefore knew that Council approval was required; and
  • a quotation obtained by the defendant also gave rise to the inference that the defendant chose to authorise the removal of the two cheese trees in circumstances where she knew that the consent of Council was required before the tree removal could be undertaken.

The two successful prosecutions by Hunters Hill Council and HWL Ebsworth serve as a reminder of the importance that local Councils and the community place upon the environment, and the seriousness that the Court places on such matters when engaged in the sentencing process.

This article was written by Jane Hewitt, Partner and Philip Brown, Special Counsel.

Jane Hewitt

P: +61 2 9334 8639

E: jhewitt@hwle.com.au