MAGISTRATES COURTS OF QUEENSLAND

CITATION:	GCCC v Anderson and Anderson [2019] QMC 8	
PARTIES:	GOLD COAST CITY COUNCIL
(Complainant)
v
ANDERSON, Allan Roy and
ANDERSON, Julie Anne
(Defendants)	
FILE NO/S:	MAG00030162/18(8)	
PROCEEDING:	Sentence	
ORIGINATING COURT:	Magistrates Court	
DELIVERED ON:	8 Apr 2019	
DELIVERED AT:	Southport	
HEARING DATE:	2 Nov 2018	
MAGISTRATE:	A. H. Sinclair	
ORDER:	Each defendant is convicted and fined $15,000 with 6 months to pay in default 100 days imprisonment and ordered to pay $1,500 in legal costs and $6,590.43 in investigation costs with 6 months to pay in default 50 days imprisonment. No convictions are recorded.	
CATCHWORDS:	SUSTAINABLE PLANNING ACT – CARRYING OUT ASSESSABLE DEVELOPMENT WITHOUT A PERMIT – TREE CLEARING – FACT FINDING ON SENTENCE – PURPOSE OF CLEARING – COSTS – RECOVERY COSTS
Evidence Act 1977 s.132C
Justices Act 1886
Sustainable Planning Act 2009 s.614
McSweeney & Anor. v Spiller [2002] QDC 295
Stephen David Segal (Judge Dorney QC Southport 25.10.2013) unreported	
COUNSEL:	K. Wylie for GCCC
D. Favell for Defendants	
SOLICITORS:	McInnes Wilson for GCCC
Gadens Lawyers for Defendants	
[1]	The defendant are husband and wife. They each pleaded guilty to clearing 60 mature native trees from their hinterland rural residential property where it was mapped as remnant vegetation and essential habitat for two vulnerable native species. 
[2]	The question of penalty required resolving the following issues at sentence:
1.	Whether the defendants cleared for views or bushfire protection
2.	Whether the costs included by the Council in obtaining a bushfire report are properly recoverable.
3.	Whether the legal costs of the Council should be fully recovered
4.	The appropriate penalty in all the circumstances.

The Facts
[3]	The parties tendered a statement of agreed facts as Exhibit 1. It sets out (in summary):
1.	Between about Nov 2014 and April 2018 the Defendants owned a rural block at Wongawallen.
2.	As at March 2017 the property 
(a)	Contained a dwelling 
(b)	Was 24,590m2
(c)	Was in the Rural Zone
(d)	Was subject to the Environmental Significance – Vegetation Management Overlay 
(e)	Was mapped in the high to very hire bushfire hazard area.
3.	A tree lopping firm was engaged to clear vegetation.
4.	On 14 March 2017 it attended and commenced clearing.
5.	Council attended that day and directed clearing to stop.
6.	On 29 March 2017, Council confirmed 60 mature trees and a number of smaller trees had been removed.
7.	There was no clearing permit.
[4]	During sentencing submissions it was put for the Defendants, that they had engaged the tree lopping firm to reduce bushfire risk.
[5]	Exhibit 2 was a group of photos of the site showing the damage and the extensive views to the ocean from the cleared land. The exhibits show good long distance views from the site of the clearing. At my questioning about whether Council accepted bushfire as the real reason for the clearing, Council invited me conclude that the clearing was for views.
[6]	Council had a surveyor produce Exhibit 5 which shows the precise location of each stump on the lot.
[7]	This area is shown to have been extensively cleared in Exhibit 3 at a time before this event in May 2016. Exhibit 4 shows the change by July 2017.
[8]	Council obtained a report from Mr Friend, a bushfire expert, as to the utility of the clearing which was carried out being for fire protection. He opined that the clearing would not and could not improve the level of bushfire protection for the existing dwelling house.
[9]	The Defendants submitted that they left the exact area to be cleared to the loppers. 
[10]	Mr Friend’s report includes 3 photographic panoramas made from images taken on inspection. They are from the level of the ground at the house or below it. They appear to show that even before the clearing event, those upstairs in the house would have had views to the north and the east. 
[11]	Mr Friend sets out that the land was steep; about 22 degree or more to the ENE and NNE. The distance to the nearest tree was readily calculable from the data available. 
[12]	Each of the trees 1 to 60 are identified in Exhibit 4. Some are presumably species of great stature. Measurements of the stump sizes were made. No measurements have been given of the height of any of the trees cleared. No estimates of the likely height of a particular tree of a known species with a known stump diameter were given. 
[13]	Mr Friend gave the slopes and the survey of the location of each stump would have permitted a calculation of the crown height in relation to the living areas of the house. This was not done. In short, I could have been and was not informed, of several relevant facts from which I could have concluded that the trees would have blocked the view from the house.
[14]	When Council contacted the male Defendant on the date of the clearing he told officers it was for bushfire protection.
[15]	Exhibit 15 is file notes from Council Officer Julian Young. It says (in part):
14/03/17 … I observed 2 males from “Treeline Tree Services” with chainsaws felling trees on the property. … Male advised that the owner of the property engaged them to removed [sic] trees for the maintenance of a fire buffer around the dwelling. …
Phone contact made by Mr Allan Anderson … He advised he did not [have a clearing permit] and he was acting on advice from the previous owner that he was able to maintain a fire buffer around his dwelling.
[16]	There was no other material before me about Council’s investigation or the Defendant’s claim. There was no formal interview put before me. There was no interview of the tree loppers as to who decided what would be cleared from where; whether they gave a quote; whether permits were discussed. There was no interview of the previous owner.
[17]	No other interviews were put into evidence or referred to – either the Defendants or the loppers.
[18]	The Defendant tendered Exhibit 13, an email between Council officers about clearing in 2017. No evidence was given about whether the Defendant ever saw it before the clearing. The officers refer to some ‘recent’ clearing which ‘appears to be in excess of the allowable clearing of Radiation Zones for bushfire risk mitigation’. 
[19]	Exhibit 13 also refers to clearing pre-dating their ownership, most of which is ‘acceptable’. The memo gives distances allowable and extra distances for slope. This exhibit refers to what appears to be the criteria on S07 of the Vegetation Management Code under the planning schedule which permits far more limited clearing that that which occurred.
[20]	Council gave no evidence about any aspect of the conduct of the Defendants at this time who were the owners at the time or their investigation. No evidence was given as to how far the clearing Council considered ‘acceptable’ extended.
[21]	I am not satisfied on the balance of probabilities that the defendants cleared for views. In the end, despite the very strong possibility that the Defendants cleared for views, it would be unfair to them and deny them natural justice to reach that conclusion where the explanation given was not investigated and where material on which that conclusion could have been reached was not put before me. 
[22]	The finding would have had serious consequences on the Defendants. The fine for clearing for views is likely to always be high enough to counteract the increase in value which it causes.
Legal Costs
[23]	Council tendered Exhibit 11 setting out the costs it sought.
[24]	The $424.73 for filing fees etc. was not controversial.
[25]	The $250 for each mention between 12 March and 8 October 2018 was. 
[26]	The Defendants tendered Exhibit 14, an email designed to show that the Council was still pursuing an impossible restoration order until shortly before the sentence. 
[27]	Whether it shows Council’s solicitors were still seeking that order is not made out on its face. Even if they had not turned their minds to the issue, it did not change the fact that the orders could not be made against non-owners or against the Defendants who could no longer control the site. That matter could have been and was dealt with on sentence.
[28]	The offence date was 14 March 2017. The summons was issued on 12 February 2018. The first return date was 12 March 2018. There were 6 occasion in total on which it was mentioned before pleas were entered.
[29]	There was never any suggestion that the clearing was authorised in any way.
[30]	Mr Friends report was dated 4 June 2018. While I accept his evidence about the most likely way in which a fire would impact the house, it is obvious that only an expert could form it. That is, a layperson might not understand that removing the trees did little or nothing to improve the level of bushfire protection.
[31]	He spent some of the report discussing restoration costs. The Defendants sold the house in April 2018. By then, they could clearly not implement any restoration order.
[32]	To stop legal costs, a defendant can enter a plea of guilty. There is no need to agree the penalty or every fact. There was never a defence nor a suggestion of one. This is not an early plea. A brief was prepared. It is appropriate that the Defendant’s pay all costs of those mentions as it was entirely within their power to avoid them.
Investigations Costs
[33]	Council also claimed ‘Investigation Costs’ under s.614 of SPA. That says:

614Recovery of costs of investigation
(1)This section applies if—
(a) 	a person is convicted of an offence against this Act; and
(b)	the court convicting the person finds the assessing authority has reasonably incurred costs and expenses in taking a sample or conducting an inspection, test, measurement or analysis during the investigation of the offence; and
(c)	the assessing authority applies for an order against the person for the payment of the costs and expenses.
(2)	The court may order the person to pay to the assessing authority the reasonable costs and expenses incurred by the authority if it is satisfied it would be just to make the order in the circumstances of the particular case.
(3)	This section does not limit the court’s powers under the Penalties and Sentences Act 1992 or another law.

[34]	‘Investigation Costs’ under s.614 of SPA include in my view, disproving any exemptions or defences which might be raised. Until someone enters a plea of guilty, the complainant still has to obligation to investigate. Defendants wishing to save themselves the costs being passed on to them should consider the costs being accrued because they have not entered a plea.

Council Officers
[35]	The section refers to ‘costs and expenses’. This seems to me to focus on ‘costs’ as outlays made by Council in terms of the use of its own staff and equipment and on ‘expenses’ as sums paid to third parties.
[36]	The costs claimed at $10,354.67 represent 47 hours and 4 minutes of Council officer time at the rate specified under a planning instrument. That is not the appropriate rate. The section is concerned with the actual costs of the officer, not the amount it could charge a developer for assessing an application.
[37]	Also the section is limited to sampling, inspections, measurements and analysis. The schedule in Exhibit 11 includes some items which are clearly none of those. For example – discussions with supervisor, preparing brief report, preparing brief of evidence. These costs are all limited by the fact the prosecution is bought under the Justices Act.
[38]	The defendants submit that there were no costs as these officers were already employed and so their wages were sunk costs. The officers are nonetheless not available for other work. As I have no evidence of the actual cost to Council of these workers, I have not awarded any costs. Any I had awarded would have likely be taken into account in relation to the fine which is payable to Council in any event.

Reports
[39]	Exhibit 11 also seeks $4,386.36 for the surveyors report. That expense was actually incurred and does fall under s.614(1)(b).  It should be paid by the Defendants because the exact species and location of each tree is relevant to the offences under investigation. 
[40]	$8,794.50 is sought for Mr Friends report. Some of it dealt with the costs of rehabilitation. Those might be relevant to the investigation and prosecution even if the Defendants did not then own the land. It certainly assisted in quantifying the extent of the damage and the amount they would have been liable for if they had not sold. The $45,020 appears to me to be beyond what would rightly have been recoverable but the amount would still have been in the tens of thousands of dollars. 
[41]	Mr Friend does not make it clear that he actually attended the land but he clearly used hard data from those who did and other sources to conduct an ‘analysis’ during the investigation. It should be paid by the Defendants as he was investigating the effects of the clearing. It was also necessary to show it would not have been authorised by the Council under performance solution PO1 in the Vegetation Management Code.
Penalty
[42]	There remains however the fact that without contacting Council they caused at least 60 mature trees in an area critical for vulnerable species to be removed and they ended up with a property more desirable to themselves and the purchaser. Mr Anderson at least appears to have been aware that clearing was regulated and at best did nothing to attempt to limit the clearing to that which was legal and effective.
[43]	The best that can fairly be said for the Defendants is that:
1.	They knew clearing was regulated
2.	They knew clearing for bushfires was allowed
3.	They engaged someone to clear without:
(a)	Calling the Council to check what was allowed
(b)	Reading the planning scheme for themselves
(c)	Taking legal or planning advice
(d)	Asking the clearers for a report in advance of what they could and would clear and how it was lawful
(e)	Instructing the clearers to consult with Council
4.	They therefore took no active steps to ensure that they complied with the rules they knew existed.
5.	They were prepared to come home and find the loppers had laid waste to a large area
6.	That is what happened.
[44]	This complete abrogation of responsibility should rightly leave them as landholders as fully responsible for their failure to select, instruct, question and supervise those who they let loose on their property with chainsaws.
[45]	Landholders are not less responsible if the hand on the chainsaw is not their own.
[46]	The parties took me through a number of comparatives. The price per tree was in the order of several hundred dollars per tree. While it is superficially enticing to look at a ‘price per tree’ this largely ignores the reasons for clearing, the total number of trees, and their role in the habitat on the site and as part of the larger environment and whether regeneration is undertaken or possible.
[47]	 There was no evidence of the significance of this site to the species just they are vulnerable and it is remnant. I have subjective knowledge about such matters but I do not take it into account as it could not be considered to meet the requirements for the taking of judicial notice. The stumps show mature trees that would not be replaced overnight, perhaps taking decades to regrow.
[48]	The District Court decision in Stephen David Segal (Judge Dorney QC Southport 25.10.2013) resulted in a fine of $30,000 for 54 trees over 2.1 Ha that was upheld by His Honour on appeal. This clearing is more complete and concentrated. At that time the maximum fine was $166,500.
[49]	What can be said is that this offence is now punishable by 4500 penalty units. It is clearly intended to be regarded as a most serious offence. 
[50]	I was referred to the authority of McSweeney & Anor. v Spiller [2002] QDC 295 at [11] where His Honour, Judge Robertson sets out a non-exhaustive list of factors likely to aggravate the same offence under previous legislation. It reads:
(a)	The period of time over which the offence had been committed;
(b)	Whether or not the offender has had prior notice from the relevant local authority of the unlawfulness of its actions;
(c)	The scale and commerciality of the unlawful use
(d)	Any other conduct (apart from (b)) which suggests a wilful disregard of planning laws;
(e)	Previous convictions for like or similar offences;
(f)	The potential for environmental harm, and interference with the cultural, economic, physical and social wellbeing of other people in the particular community.
[51]	While His Honour’s remarks were directed to the type of offending he was then dealing with, in the case of the interference with native vegetation the following differences appear to me to be relevant:
(a)	The period of time over which it will take the habitat to recover.
(b)	Any actual (whether intended or not) or intended (whether realised or not) financial gain from the clearing;
(c)	Whether or not a permit would ever have been granted had it been applied for.
(d)	Whether the vegetation on site was of general importance or significance (as shown by being mapped as such) or of particular importance or significance (as shown by site specific investigation).
[52]	No material was tendered as to the particular use of the species of trees cleared to the vulnerable species here. No material was tendered as to any particular use being made of the site by those species.
[53]	It remains however common knowledge that without habitat, a species is at risk. Nothing can live for long in nature without shelter and food. Individuals will suffer if the trees they rely on are removed. Populations or whole species will suffer if their viability is threatened by repeated degradation of their habitat even though any one loss is of itself not significant at a species level.
[54]	In this case the relevant factors are:
1.	Rehabilitation cannot be ordered as the Defendants no longer own the land therefore:
(a)	there will be a loss of the habitat for many years until it naturally regenerates.
(b)	The defendants will not have to meet those costs.
2.	Two species of vulnerable wildlife will for several generations be deprived of the habitat provided.
3.	It was not just mature trees were removed but everything. The site is now of little to no habitat value. A remnant ecosystem has been reduced to a barren scar.
4.	The Defendants made no attempt to get a permit instead at best relying on a former owner and the tree-loppers as to what they could remove while knowing clearing was regulated.
5.	The Defendants cooperated fully with the investigation from the beginning (albeit impossible to defend or hide their actions by then).
6.	A plea of guilty was entered without the matter having been set for trial but after a brief was prepared.
7.	The costs and fine appropriate for each defendant is half the sum attributable to the whole of the offending, there being nothing to differentiate between them and all of the money coming from the same household budget.
8.	Had the defendants applied for a permit to clear, Council would not have granted it.
9.	General deterrence is the most important feature. Not only must citizens understand their rights to destroy the environment are limited by law, they must know that it will never be economical to risk a fine. Especially one less than the cost of complying with the law.
10.	The Defendants have no convictions and I am not pressed to record one.
11.	Taking into account the fact that the Defendants will be ordered to pay substantial amounts by way of costs any penalty can be reduced and the deterrent effect will remain.
[55]	The total penalties and orders appropriate for this offending are:
1.	Penalty – Fine $30,000
2.	Legal costs – $3,000
3.	Investigation Costs:
(a)	Council -$0
(b)	Reports – $13,180.86
[56]	I propose to make orders that each Defendant is ordered to pay half of each amount and that they are allowed 6 months to pay the fine, in default 100 days imprisonment and 6 months to pay the costs in default 50 days imprisonment and no convictions to be recorded.

A.H. Sinclair
Magistrate