Russell Kennedy Lawyers were recently engaged by Monash City Council to prosecute a breach of the Monash Planning Scheme (Planning Scheme). The breach of the Planning Scheme was on the basis that land in Glen Waverley (Land) was developed by way of poisoning a tree.
Charge
Each of the five owners of the Land were charged with one breach of section 126(2)(a) the Planning and Environment Act 1987 (Vic) (Act) as follows:
At all relevant times, the Accused was the owner of the land in Glen Waverley in Victoria, which in the period between on or about 1 November 2018 and on or about 9 January 2019 was developed in contravention of clause 42.02-2 of the Monash Planning Scheme, being an offence under section 126(2)(a) of the Planning and Environment Act 1987 (Vic).
Particulars of Development
The destruction of a Eucalyptus leucoxylon (Yellow Gum) tree by way of poisoning when that tree was protected under a Vegetation Protection Overlay without a planning permit to do so.
The maximum penalty for a breach of section 126(2)(a) is 1200 penalty units which equates to $193,428.00.
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The poisoned Eucalyptus leucoxylon (Yellow Gum) tree in question.
Background Facts
The existing dwelling at the Land was not occupied by any of the Accused and was leased to international students. The Land is zoned General Residential Zone and is affected by a Vegetation Protection Overlay (VPO).
The breach related to the development of the Land in contravention of the VPO in that one Yellow Box tree protected under the VPO was destroyed by way of poison without a planning permit to do so.
In September 2017, a planning permit was issued allowing “Construction of two (2) double storey dwellings” at the Land, including the demolition of existing dwelling.
On 8 January 2019 Council received a complaint that a tree had been potentially poisoned as it appeared in bad health. The complainant in a statement noted that the subject tree was healthy in November 2018.
On 9 January 2019 Council planning officers attended at the Land and noted that the tree was located at the rear of a secluded private open space at the Land. Soil disturbance around the trunk of the tree was observed and a volume of soil could be seen heaped on the bottom fence railing and that a gouge in the trees trunk was noted approximately 300 mm from the trunk base.
On that day it observed that there were two real estate boards advertising the sale of the Land on which they were displayed. The boards were advertising the sale of two separate lots on the land with plans approved.
On 30 January 2019 a further inspection was carried out which confirmed the subject tree was in fatal decline. Samples of the subject tree being leaf, stem matter and soil were obtained and sent for analysis which revealed the presence of glyphosate in all three samples.
Glyphosate is a broad spectrum systemic herbicide and crop desiccant used to kill weeds, especially annual broadleaf weeds and grasses that compete with crops.
On 26 February 2019 all Accused were interviewed at Council. They all denied any knowledge or involvement in the poisoning of the tree. All occupants of the dwelling at the Land also denied any involvement.
A Real Estate agent made a statement that the Land had been recently up for sale in the November/ December 2018 period and was auctioned on 1 December 2018. The agent said there was a buyer on auction day, but the offer was never committed in writing and that they were going to make the purchase subject to the removal of the subject tree.
Under the VPO a permit is required to remove or destroy any vegetation that:
- has a trunk circumference greater than 500mm (160mm in diameter) at 1200mm above ground level; and
- is higher than 10 metres.
The subject tree was approximately 12 m high with a trunk circumference of approximately 750 mm. The amenity value of the subject tree was assessed at $43,278.23 by using Council’s Amenity Value Formula, which takes into account basic value, species, aesthetics, locality and condition.
Magistrates’ Court Decision
On 18 July 2019 the charge against each Accused was heard at the Ringwood Magistrates’ Court. Each Accused appeared in person and was represented by a barrister. The matters were heard before His Honour Magistrate Clifford. Each Accused entered a plea of guilty to the charge. The facts as broadly outlined above were read to the Court. Each Accused accepted the summary and Mr Clifford found the charge proven.
Russell Kennedy Lawyers submitted to the Court the following:
- the purpose and objectives of the Scheme;
- photographs of the subject tree;
- it was not relevant that Council had no knowledge who poisoned the tree;
- it is sufficient enough based on the Supreme Court decision of DC Consolidated Investments Pty Ltd v Maroondah City Council [2011] VSC 634 (DC) that Council only need prove that the tree was poisoned (not who poisoned the tree) and that the owner(s) were the owner(s) at the relevant time; and
- that despite Council not knowing who poisoned the tree ultimately the owners are responsible for their land and that general deterrence should be at the forefront of any sentence imposed.
The defence Barrister submitted the following amongst other things in relation to each Accused:
- each Accused denied knowledge of the poisoning;
- the land was fully accessible and anyone could have poisoned the tree;
- each Accused generally had modest incomes;
- a low level fine or a community corrections order would be appropriate;
- that any sentence should be made without conviction; and
- the accused were complying with Council and in the process of entering a rectification action plan through an enforcement order process in VCAT.
Mr Clifford made the following remarks in sentencing:
- the maximum fine of $193,000.00 is a clear indication of the community view to deter such behaviour and that significant penalties must be imposed;
- he accepted the Accused were not developers but individuals trying to lawfully make a legitimate dollar to advance their welfare and for that reason he would impose a without conviction sentence;
- had the Accused been a developer he would expect a developer to know better and he would have imposed a conviction;
- the tree had a value of approximately $43,000.00 and noted that in the DC case a number of trees had a value of $146,000.00;
- that in the DC case the Supreme Court affirmed that a $40,000.00 fine was not manifestly excessive;
- the Accused all pleaded guilty unlikely the DC case and all had no prior matters known;
- all Accused were inexperienced in development;
- the Accused would rectify the land at significant cost; and
- it was appropriate a penalty be shared between all Accused.
Mr Clifford, imposed a fine on each Accused without conviction and ordered the Accused to pay Council’s legal costs with the total amount of the fine and costs totalling $26,589.50.
Please contact our Compliance and Enforcement Team should you require any further advice: Ian Pridgeon, Marcus Heath, Daniel Silfo, Caroline Skeoch and Elizabeth Flanagan.
We have personnel who specialise in the following enforcement and prosecution practice areas:
building, planning, environment protection, including contaminated land issues, domestic animals, food, public health and wellbeing, liquor and tobacco control, local laws vegetation, parking (road rules) and road management.
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