The Land and Environment Court (per Justice Biscoe) has confirmed a conviction and fine imposed in the Parramatta Local Court against a contractor who felled 12 trees without required development consent in a rural area in the local government area administered by Hawkesbury City Council. The judgement of the LEC, in the case of Ford v Hawkesbury City Council, (2015) NSWLEC 19 (16 February 2015) upheld the Local Court's orders which required the contractor to pay fines of $8,000 as well as the Council's legal costs, which were said to be on the order of $20,000. Justice Biscoe's decision can be found at the following link:
http://www.caselaw.nsw.gov.au/decision/54e280f4e4b024df3936b881
The circumstances of the case were that the contractor who was the subject of the prosecution (Ford) had been engaged by a property owner to carry out works on his land. The Council had issued a development approval to the landowner which had given approval to the clearing of native vegetation, the construction of a dam, and the use of the land for the purposes of a "market garden". The development consent contained a condition which required that the work on the land be conducted in accordance with a "Vegetation Management Plan". This plan in turn specified that an area of the property that was designated a s a "conservation area" (containing trees and vegetation characteristic of Cumberland Plain Woodlands) not be disturbed.
It was within this conservation area that the defendant Ford was observed by an officer of the Council to be felling trees with a bulldozer.
The defence to the prosecution that was put forward by the contractor before the Local Court was that he had carried out the clearing of the land as a result of "honest and reasonable mistake of fact". Where proven, evidence of such a mistake of fact can be a full defence to a prosecution for a strict liability offence, such as the offence of carrying out development without required development approval.
In this prosecution, the defendant contractor asserted that a finding of honest and reasonable mistake of fact could be made based on the following factors: a) that a development consent had been granted in respect of the land; b) that the owner of the land had directed the contractor to carry out the removal of trees both within and outside the areas of the property where such work had been authorised by the development consent; c) the landowner had told the contractor that a development consent had been granted; and d) the landowner and his brother had been present on the property when the tree clearing work was being done; e) the owner had given the contractor a copy of a structural engineering plan relating to the works (but not a copy of the underlying development consent itself).
In the event, neither the magistrate who presided over the prosecution in the Local Court, or Justice Biscoe on appeal, was persuaded that the contractor's mistaken assumption that a consent had been given authorising the tree felling was "reasonable". The contractor had conceded while under cross-examination in the Local Court proceeding that he had been carrying out similar works on land for 30 years, and that he was aware from that experience that the types of work that he was directed to do by the landowner typically required development consent. On that evidence, the magistrate and Justice Biscoe both concluded that is was not reasonable for the contractor to fail to make independent enquiries of the Council as to whether development consent had indeed been granted authorising the felling of trees within the conservation area.
Consequently, even though at the time that he carried out the work the contractor held a "subjective belief" that he was not doing anything unlawful, both the magistrate at the Local Court level and Justice Biscoe found that his failure to make his own independent investigation was not reasonable. Therefore, the contractor's claim that he believed that there was a consent in place allowing the trees to be removed was found not to be a valid defence to the prosecution.
The clear moral of the decision in this case is that all persons who contemplate carrying out works that require development consent must be scrupulous to ensure that a consent for the works has actually been granted. It is not enough for a contractor - whether engaged to perform land clearing or other work (such as building work) - to take the property owner's "word for it" that a consent covering the works has been obtained. The contractor must take steps of its own - including checking with the relevant council - to be sure that the relevant consent does exist.
As the result here illustrates, the failure to make independent enquiries can result in significant adverse consequences, including costly fines, costs orders, and the reputational damage associated with having a criminal conviction recorded.
Indeed, in the circumstances of this particular case, where the clearing was done in an ecologically sensitive area that has been designated as "critically endangered" under the NSW Threatened Species Conservation Act, it could be fairly said that this contractor was in some sense fortunate that the fine and costs were "only" about $28,000 in total. The sanction could easily have been more severe, and there can surely be no assurance that in a future prosecution involving similar facts it would not be.
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