Conviction recorded against Arborist who made a mistake

A recent successful prosecution brought on behalf of the City of Burnside by Norman Waterhouse, highlights the approach of the Environment, Resources & Development Court to sentencing Arborists who undertake development, namely tree damaging activity in relation to a regulated tree, without development approval (City of Burnside v S Huxter (ERD 22-000044)).

Facts

The defendant was a practising Arborist for more than 25 years. He was engaged by a landowner to remove a tree from her front yard.

The tree in question was a Sydney blue gum, which was a Eucalyptus tree, (Eucalyptus saligna) and was located within 10 metres of the existing dwelling on the land. In 2002, the tree was listed as significant under the Development Act (now repealed) and remained a significant tree under the Planning, Development and Infrastructure Act (Act).

Prior to removing the tree, the defendant mistakenly identified the tree as a spotted gum (Corymbia maculata), which is not a Eucalyptus tree. Given the tree was located within 10 metres of the dwelling, the Arborist incorrectly concluded the tree could be removed from the land without a development approval (Planning, Development and Infrastructure (General) Regulations 2017, r3F(4)(a)).

In addition, the defendant did not realise that the tree was also listed as a significant tree in the Planning & Design Code. The effect of the listing was that the 10 metre “carve out rule” set out in regulation 3F(4)(a) of the Regulations did not apply to the tree in any event, regardless of its species.

The defendant claimed that the two species are identical in appearance and that even the most experienced arborist could make this mistake. The Council then adduced evidence from an expert who stated that a qualified arborist would be able to tell the difference between a Sydney blue gum and a spotted gum, simply from observing the fruit (gum nuts), leaves and buds of the two species. The defendant in this case said that when he inspected the tree, he was 100% sure it was a spotted gum, yet he also admitted that there was no fruit, leaves or buds of the tree on the ground for him to inspect at the time.

The defendant pleaded guilty to the charge of undertaking development, namely tree damaging activity in relation to a regulated tree. The maximum fine under the Act which may be imposed in relation to this offence, when committed by an individual, is $120,000.

Sentence

The defendant requested the Court to exercise its discretion and to not impose a conviction in relation to the offence. The Sentencing Act 2017 does allow a sentencing court to impose a penalty without conviction. It may do so if, amongst other matters, extenuating circumstances exist. The defendant said that he was experiencing personal issues in his life at the time which he said contributed to the mistake which he had made.

While the Court was satisfied that the defendant was unlikely to commit such an offence again and that he was remorseful, contrite and otherwise of good character, the Court found that the personal circumstances of the defendant at the time of his offending did not persuade the Court that extenuating circumstances existed so as to warrant the imposition of a penalty without a conviction.

In determining penalty, the Court said that the defendant was in the business of removing trees and vegetation and that it is important that he and his fellow arborists are aware of the governing legislation and the consequences that follow from any breach. In this particular case, not only did the Arborist make a mistake about the species of the tree, he also was not aware that a tree could be listed as a significant tree in the Planning & Design Code, nor that the tree in question was so listed. Had he realized this, the species of the tree would have been immaterial given the fact that the scheme set out in the Regulations (which permits tree damaging activity to be undertaken in relation to a regulated tree if it is within 10 metres of a dwelling (or swimming pool) in certain specific cases) has no application to significant trees that are listed as such in the Planning & Design Code.

The Court found that the defendant’s actions were clearly inadequate, as he operated a business as an arborist, and that his customers, and the community, relied upon him to; “get it right”. The Court considered the balance to be in favour of a conviction being recorded against him so that the whole community may know of the offending. The Court said that the recording of a conviction in the circumstances would provide both specific and general deterrence.

The defendant was convicted and fined $8,000 (which was discounted by 35% on account of his early guilty plea to $5,200). The Court also awarded the Council its costs of the proceedings.

For more information in relation to this article, please contact Claire Ryan on 8210 1294 or by email at cryan@normans.com.au