Tree Preservation Prosecutions
The recent decision of the NSW Court of Criminal Appeal in Tauszik v Gosford City Council [2006] NSWCCA 193 upholding an appeal against a conviction for breach of a Tree Preservation Order has caused some consternation in Council circles. However, on closer reading, it is likely to be of limited effect only.
What the Court of Criminal Appeal held in that case was that, because of the way the particular tree preservation clause in the Gosford LEP was worded, a prosecution for breach of a TPO made pursuant to that clause had to be brought within the general 6 month time limit imposed by s 127 (5) of the Environmental Planning and Assessment Act, and not the longer 12 month limit provided for in s 127(6)(a). Because the relevant prosecution was instituted more than 6 months but less than 12 months after the relevant events, it was out of time.
Tree preservation clauses in LEPs are of 3 basic types.
- A clause allowing the council to make an order prohibiting the relevant conduct without consent and usually providing that a person breaching such an order is guilty of an offence. It was a clause of this type which was under consideration in Tauszik.
- A clause empowering the Council to make such an order, and further providing that a person cannot carry out the relevant conduct without Council consent. There was a clause to this effect in the Hornsby LEP which was the subject of consideration in two decisions referred to by the Court in Tauszik. The Court distinguished that type of provision from the one before it in that the clause in the LEP expressly prohibited the relevant conduct (which was held to be “development” for the purposes of the Act) without consent, whereas in the Gosford clause under consideration in Tauszik, that prohibition was contained in the order.
- A clause providing directly that a person cannot engage in the relevant conduct without Council consent. This does away with the need for any ancillary order by Council. Although it was not before the Court in Tauszik, the reasoning in that case would seem clearly to indicate that a breach of such a provision would invoke the longer time limit for a prosecution.
The first thing to be said about the effect of Tauszik is that a prosecution brought within 6 months (provided it is properly framed and otherwise in order) will be good whatever the wording in the LEP, or the order made pursuant to the LEP. More notably, however, clause 32 of the standard template introduced by the Standard Instruments (Local Environmental Plans) Order 2006, in effect adopts the second type of clause referred to above, although substituting the making of a DCP for that of an order. It appears fairly clear from Tauszik that a prosecution brought pursuant to that clause would have a limitation period of 12 months rather than 6. Although clause 32 is an “optional” clause, we would expect most Councils to include it, as its omission would result in there being no general control over destruction etc of trees in the relevant Council area. Therefore, as the template LEP is gradually adopted by Councils over the next 4-5 years, the significance of Tauszik will dwindle and eventually disappear.
Peter Kelso
PARTNER
Direct Line: (02) 9023 0115
pkelso@normans.com.au
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Also in this issue
What's Happening at Normans...
New Appointments
We are pleased to welcome these new members to the Norman Waterhouse Team:
- Nick Robertson – Associate, Environment and Planning
- Melanie Lynn – Conveyancer, Property, Infrastructure and Development
- Brooke McEvoy – Solicitor,
Financial Services
- Maria Ho – Senior Associate,
Commercial Services
- Damien Timms – Solicitor,
Insurance, Trade and Transport Services
- Clifford To – Solicitor,
Town Planning and Local Government Services.
We are pleased to announce the return of:
Corporate Responsibility
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