By gum! Lopper prosecuted for tree damaging activity

Norman Waterhouse recently acted in a successful prosecution in the Environment, Resources and Development Court of South Australia on behalf of the City of Burnside (Council) against a tree lopper for undertaking tree damaging activity in relation to a regulated tree without approval.

The defendant, Mr Mike Fatu, is the operator of the tree lopping business ‘All State Tree Works’. Mr Fatu was engaged through the builder on 42 Gordon Terrace, Rosslyn Park to remove a tree on neighbouring 40 Gordon Terrace because the tree overhung the location of a proposed swimming pool. Upon being advised by the public of the tree being felled, the Council’s compliance staff attended the land and observed the tree had been removed and staff of All State Tree Works were cleaning up leaves and branches.

The tree was a River Red Gum or similar species of Eucalypt, and due to its circumference was a regulated tree. Mr Fatu had looked at the tree from the verge when quoting for its removal but failed to measure its circumference prior to his employees felling it.

The Council charged Mr Fatu with one count of undertaking development [a tree damaging activity] contrary to Section 215(1) of the Planning, Development and Infrastructure Act 2016 and Mr Fatu pleaded guilty.

Senior Judge Durrant, in sentencing Mr Fatu, stated that ‘even an inspection from the verge would indicate [it’s circumference] should be checked. Its status was easily ascertainable’.

Durrant SJ also observed the need for tree loppers and arborists to implement adequate processes to identify regulated trees, stating:

I am not satisfied that you will not offend again. Your ordinary practice is to measure the trees before removal personally. Your employees have not been adequately trained or instructed as to what to do in your absence. You could not recall what you had done. No evidence of any proper process to prevent recurrence was brought to my attention.

Further, I do not find that extenuating circumstances exist. As an experienced operator of the tree removal business the community relies on you to perform your due diligence and ensure any clearance you undertake is lawful. While I accept that you were distracted by family concerns, that highlights the need for processes and instruction to be in place when you are absent…

I consider the whole community should be aware of this offending to protect significant trees and the integrity of the planning regime and to deter you and others from future unlawful removal of significant trees.

Mr Fatu was convicted, fined $10,000 (reduced to $7,000 due to a 30% guilty plea discount), and ordered to pay costs to the Council and a Victims of Crime Levy.

For more specific information on any of the material contained in this article please contact Aden Miegel on +61 8 8217 1342 or AMiegel@normans.com.au or Stephan Koefer on +61 8 8217 1368 or SKoefer@normans.com.au .