Cooper v Coffs Harbour City Council Matter No 60751/96 [1997] NSWSC 598 (2 December 1997)

David John Cooper v Coffs Harbour City Council

60751/96

2 December 1997

Hunt CJ at CL, Smart J, Howie AJ

The Supreme Court of New South Wales Court of Criminal Appeal

NATURE OF JURISDICTION: Appeal from Land and Environment Court of New South Wales (Talbot J)

FILE NO/S: 60751 of 1996

HEARING DATE/S: 8 October 1997

DELIVERED: 2 December 1997

PARTIES: David John COOPER v COFFS HARBOUR CITY COUNCIL

JUDGMENT OF: HUNT CJ at CL, SMART J, HOWIE AJ

COUNSEL:

APPELLANT - J S Wheelhouse

RESPONDENT - C S Leahy

SOLICITORS:

APPELLANT - S L Ferrier, Ferrier & Associates

RESPONDENT - P Wardman, Murray Backhouse Turner

RESULT: Appeal against conviction dismissed. Leave to appeal against sentence is granted and the appeal is allowed. The fine imposed by Talbot J is quashed and in lieu the appellant is fined $5,000. The order for costs is confirmed.

CATCHWORDS: Environmental law - Proceedings for breach of development consent - application of s 43 of Land and Environment Court Act 1979, John L Pty Limited v Attorney General (NSW) [1987] HCA 42; (1987) 163 CLR 508 considered; Stanton v Abernathy (1990) 19 NSWLR 656 applied - Appeal - power of Court on rehearing under s 5AB of Criminal Appeal Act 1912; Camilleri's Stock Feed Pty Limited v Environmental Protection Authority (1993) 32 NSWLR 683 applied.

No. of pages: 31

David John COOPER v COFFS HARBOUR

CITY COUNCIL

ENVIRONMENTAL LAW - The appellant was convicted in the Land and Environment Court of an offence against s 125(1) of the Environmental Planning and Assessment Act 1979 in that he aided and abetted the removal of trees from a development site without the approval of the respondent council. It was a condition of the consent to the development of the site that trees in a tree preservation area were to be retained but that approval was to be granted by council for the removal of other trees. It was alleged that the appellant's company, at his direction, removed trees on the site without first obtaining council's approval. The appellant maintained that he had been given approval by an employee of the council prior to the removal of the trees. In the trial court the appellant was convicted of the offence on the basis that he had removed trees from the site including trees within the tree preservation area.

On appeal various objections were taken to the nature of the charge including that the charge was duplicitous or uncertain in that the prosecution was relying upon the removal of trees which were both within the tree preservation area and outside that area.

Held: As the appeal was by way of rehearing, s 43 of the Land and Environment Court Act 1979 operated and no objection could be taken as to the substance or form of the charge: Huntley Colliery Pty Ltd and State Pollution Control Commission (CCA(NSW), 5 June 1991, unreported) and Camilleri's Stock Feeds Pty Limited v EPA (1993 ) 32 NSWLR 683 applied; John L Pty Ltd v Attorney General (NSW) [1987] HCA 42; (1987) 163 CLR 508 considered. The prosecutor should be permitted to elect as to which trees the charged related: Stanton v Abernathy (1990) 19 NSWLR 656 applied.

It was contended that the Court should find that approval for removal of trees on the site had been expressly granted by an employee of the council, or, in the alternative, approval had been impliedly granted by the terms of the development plan which the council had approved or by the approval of work to be carried out to develop the land in accordance with the plan.

Held: Approval for removal of trees in accordance with the condition of consent to the development had not been granted by the council prior to the removal of the trees and the appellant knew that it had not been granted when he directed that his company clear trees from the site. The charge as amended and limited had been proved. The offence was a serious one but in light of the restricted factual basis of the charge on appeal the fine imposed by the trial court should be reduced.

O R D E R S

1. Appeal against conviction dismissed.

2. Leave to appeal against sentence is granted and the appeal is allowed. The fine imposed by Talbot J is quashed and in lieu the appellant is fined the sum of $5,000 to be paid within 6 months from today to the Registrar of the Land and Environment Court for payment out to Coffs Harbour Shire Council

3. The order for costs is confirmed and the costs are to be paid within 6 months from today.

JUDGMENT

HOWIE AJ: This is an appeal from a conviction and sentence arising from a prosecution in the Land and Environment Court for an offence under s 125(1) of the Environmental Planning and Assessment Act 1979. The appellant was convicted by Talbot J and fined the sum of $15,000. He was also ordered to pay costs in the sum of $52, 331[1]. Section 5AB of the Criminal Appeal Act 1912 provides that s 5AA of that Act[2] applies to a conviction or order for the payment of costs made by the Land and Environment Court in its summary jurisdiction, and that a reference to the Supreme Court in s 5AA is to be read and construed as a reference to the Land and Environment Court.

The appellant has raised a number of grounds in the amended notice of appeal lodged concerned both with the nature and form of the charge which was before the trial court and the findings of Talbot J. It is necessary, of course, for the appellant to specify the grounds of appeal in the notice of appeal, both as a matter of form[3] and in order to give notice to the respondent of the nature of the issues to be raised at the hearing of the appeal, but an appeal under s 5AA is not restricted to a determination of whether the decision of the court below was infected with error. It is a re-hearing on the evidence given before the trial court.⁴

The width of the Court's jurisdiction when determining an appeal under this section is evidenced by s 5AA(4) which permits the Court to vacate the determination made by the trial court and to make any determination that the trial court could have made on the evidence heard on appeal. The Court is not concerned, as it would be in an ordinary appeal under s 5 of the Criminal Appeal Act, with whether the original determination was unsafe and unsatisfactory but whether the Court is independently of the same view as the trial court that the offence has been made out.[5] The nature of the jurisdiction of this Court on an appeal under s 5AB was considered in Camilleri's Stock Feed Pty Limited v Environmental Protection Authority[6]. It was held that an appeal under s 5AA was not a de novo rehearing but the Court was to consider the evidence before the trial court, together with any additional or substituted evidence admitted on the appeal, and resolve for itself afresh the ultimate issue for determination.[7]

Shortly after the decision in Camilleri's Stock Feed Pty Limited v Environmental Protection Authority was delivered, s 5AA was amended by substituting a recasting of subsection 3[8] and the insertion of subsection 3A[9]. These amendments, however, did no more than confirm the correctness of that decision. Subsections 3 and 3A of s 5AA now make it clear that an appeal under the section is to be determined on the evidence before the trial court unless leave is given by this Court for fresh, additional or substituted evidence to be adduced.

Although this Court is concerned primarily to redetermine the charge on the evidence before the trial court, it does not follow that the hearing of the appeal is limited only to a review of that evidence even if no other evidence is adduced on the hearing of the appeal. For example, on an appeal by way of a rehearing, the appeal court considers the law as it applies at the time of the rehearing.[10] The court conducting the rehearing can also, where necessary to redetermine the matter on the evidence, apply the procedural provisions which operated in the trial court. As Hunt J (as he then was) said in Huntley Colliery Pty Ltd v State Pollution Control Commission[11] "the appeal is on almost all fours with an appeal from the decision of a magistrate to the District Court".[12] This statement was applied in Camilleri's Stock Feeds Pty Limited v EPA.¹³ The difference in the nature of an appeal to this Court and an appeal from a magistrate to the District Court, is that an appeal under s 5AA is not a new hearing in which the prosecutor is required to lead the evidence to support the charge afresh.[14]

In the present case the appellant raised a number of objections to the form of the charge and the manner in which the prosecution proceeded before the trial court. He complained that the charge was invalid, or at least defective, in that it was misleading, uncertain and duplicitous. In the alternative, he maintained that, if the charge were valid on its face, it was bad for latent duplicity which became apparent by the evidence led by the prosecutor to prove the charge. Because of the manner in which the appeal was conducted and because counsel for the respondent amended and further particularised the charge, this Court has not had to determine the merits of these complaints. Ultimately the Court's only task is, therefore, to redetermine the issues of fact which arise from the substance of the allegation made against the appellant. However, before turning to this task, it is necessary that I refer to the way in which the matter proceeded before Talbot J and the way in which it proceeded in this Court. Counsel for the appellant maintained that this Court had no power to permit the respondent to amend the charge or further particularise it as was done during the rehearing of the charge. So that these procedural matters can be understood, it is necessary to indicate the factual background to the prosecution.

The offence charged concerned an allegation that the appellant had been responsible for the removal of trees on land which was in the course of being developed by a company, Coopers Constructions Pty Limited. The appellant was concerned in that company as a major shareholder and director. The development was subject to conditions imposed as a result of consent being granted to the development application by the respondent, Coffs Harbour City Council. The prosecution alleged that the trees were removed in breach of these conditions, because the approval of the Council had not been obtained before the trees were removed. The substantial issue of fact which arose before both Talbot J and this Court was whether the approval of the Council had been obtained before the trees were removed by the company. The appellant was said to have been liable for the offence charged in that he aided and abetted the company.[15] As a matter of practical reality, although not legal necessity, no distinction was made by counsel for the appellant between the liability of the company and that of the appellant.

The development application was lodged in September 1993 with the consent of the then owner, R.G. Riddell. The Council's consent was sought for the subdivision of the subject land into 19 allotments. In January 1994, the appellant became interested in the prospect of purchasing the land and developing it through his company. He personally attended meetings with the Council when the development application was considered and discussed. A Notice to Applicant of Determination of Development Application[16] was issued to the firm which lodged the application on 4 March 1994. The Notice indicated that the development application had been determined by the Council granting consent to the development subject to the conditions specified in the Notice. A schedule attached to the Notice set out nineteen conditions. Two of those conditions are relevant to this matter, they being conditions 14 and 15.

Conditions 14 and 15 in the Schedule are relevantly as follows;

14 RETENTION OF TREES

All trees identified as being located within the proposed restriction on use area are to be retained.

This area is to be under-scrubbed to reduce the fuel load by removal of leaf litter, grasses and small shrubs. Such under-scrubbing shall be carried out using techniques which will create minimal disturbance ie by hand or by using rubber tyre machinery.

Approval is to be granted by Council prior to the removal of any other trees on the site. In this regard Council's Parks and Recreation Branch shall be consulted..........[17]

15 RESTRICTION ON USE

Submission with the linen plan of the 88(b) instrument providing for the restriction of use over Lots 12, 13, and 14. Such a restriction shall require trees identified on the approval plan within this area to be preserved, with removal only with Council consent.........

The reference to a "proposed restriction on use area" in condition 14 was a reference to an area marked on the plan which had been submitted with the development application. ¹⁸ It was in effect a tree preservation area. The plan, which the Council approved at the time it gave its consent to the development application, also indicated the location of a number of individual trees on the site. These trees were identified by their type and their position was indicated by two concentric circles. The trees identified in this way were generally within the tree preservation area but there were four trees marked on the plan that were on the site but outside that area.[19] The approved plan stated that the trees which had been marked with the concentric circles were "trees to be retained". It also stated: "Retention of other trees subject to roads, services & buildings".

After the Notice to Applicant of Determination of Development Application had issued, Coopers Constructions exercised an option to purchase the land subject to the development application and paid a deposit. It retained a firm of consulting engineers to act as consultants and to carry out some of the works necessary to develop the site. In June 1994 the Council became aware that trees were being removed from the site. A council employee inspected the site and reported that the site had generally been cleared of trees and some trees which were to be retained had been removed including the four outside the tree preservation area. The Council formed the view that trees on the site had been removed without approval and that the company was in breach of the conditions upon which consent was granted for the development of the site.

Proceedings were commenced by summons against the company and the appellant personally for an offence under s 125(1) of the Environmental Planning and Assessment Act[20] on the basis of an alleged infringement of s 76(2) of that Act. Section 76(2), in effect, prohibits the carrying out of development of land which is subject to an environmental plan unless consent is obtained and the development is in accordance with any conditions imposed upon the granting of consent. The prosecution alleged that s 125(1) was breached because the appellant had done an act which was forbidden by the Council, being the removal of trees without the Council's approval. A breach of s 125(1) is a Class 5 offence under the Land and Environment Act[21] and so Division 5 of that Act applied. Accordingly, the Council sought an order from the Land and Environment Court requiring the appellant to appear before the Court to answer the charge set out in the order[22].

The application for the order and the order which was subsequently made by the Court recite the charge as follows:

"that the defendant in breach of s 125(1) of the Land and Environmental Planning and Assessment Act 1979 (the Act) removed trees during the period 18 May 1994 and 10 June 1994 from land described as Lot 5 DP 227914 and Lot 601 DP 233722 corner Kames Small Drive and Korora Bay Drive, Korora contrary to conditions 14 and 15 of the Notice to Applicant of Determination of a Development Application dated 4 March 1994 in that no consent was obtained from Coffs Harbour City Council for the removal of those trees."

This was the charge before Justice Talbot and the charge in respect of which the appellant was convicted. Although an objection was raised to the charge before the trial court, on the basis that it did not disclose an offence, Talbot J ruled against the submission and that point was not taken before us. However, as I have already indicated a number of objections were raised on the appeal as to the form and substance of the charge.

The first matter raised was the fact that the charge contained an allegation that there had been a breach of condition 15. It was contended before us that the charge was rendered invalid by reference to that condition which, so it was submitted, had nothing to do with the allegation that trees had been removed without consent of the Council. Condition 15 imposes a requirement that a restriction of use be created over the lots affected by the proposed tree preservation area. The reference to the "88(b) instrument" in the condition is clearly a reference to s 88B of the Conveyancing Act 1919.[23] The obvious purpose of the condition was to require that steps be taken, when the linen plan of subdivision was lodged with the Registrar-General's Office, to create a restriction on the use of the land in the area marked on the approved plan. There was no evidence before Talbot J as to whether, when the trees were removed by the appellant's company, any steps had been taken, or could have been taken, to comply with that condition.

On the hearing of the appeal, Mr Wheelhouse, who appeared for the appellant, submitted that the charge was invalid because the reference to a breach of condition 15 resulted in the charge being misleading and containing matters which were irrelevant. I have difficulty in seeing how either of those complaints, even if they were made good, would render the charge invalid. However, as matters transpired at the hearing of the appeal, it became unnecessary for the Court to have to determine whether the reference to condition 15 in the charge rendered the charge invalid or may have otherwise brought about a miscarriage of the hearing before Talbot J.

The allegation in the charge that the appellant had removed trees without council's consent and in breach of condition 15 was a factual particular indicating one of the ways in which it was alleged that the appellant had committed a breach of s 125(1). It is clear that a particular of this nature is a necessary one and that the failure of a charge to specify the time place and manner in which the offence is alleged to have been committed [24] will render the charge bad on its face.[25]

Although it is sometimes said that the failure to give such particulars renders the charge invalid, the invalidity is not incurable. In many statutes which create summary offences and set out the procedures for dealing with them, a provision can be found which prohibits any objection being taken as to any defect in the substance or form of the charge. Sections 30 and 65 of the Justices Act 1902 perhaps provide the two best known examples of such a provision.[26] In Stanton v Abernathy[27] it was held that s 30 was to be applied to preserve a charge which failed to provide the necessary particulars and that any unfairness to the defendant caused by such a defect could be cured by ordering the prosecution to furnish adequate particulars. Section 65 has been given the same effect.[28] The charge considered by the High Court in John L Pty Limited v Attorney General (NSW) failed because the majority held that there was no such provision available to save the charge in that case.[29]

In the present case s 43 of the Land and Environment Court Act contains a provision which is almost identically worded to those found in the Justices Act.[30] This section applies to the application and order in the present case which were made under s 41 of the Land and Environment Court Act. The Land and Environment Court also has power to order any amendment be made which in the opinion of the Court is necessary in the interests of justice.[31] In my view, it is clear that s 43 operates so as to overcome any defect in the form of the charge contained in the application and order which were before Talbot J and which are before this Court. The operation of the section is not limited to any particular proceedings or court. It is of general application. The power which the Land and Environment Court has to amend can also be exercised by this Court on a rehearing, although the effect of s 43 is not rendered nugatory by the absence of a statutory power to amend the charge.[32]

The section will operate to overcome any allegation in a charge which is wrong, or which could be regarded as mere surplusage. Section 65 of the Justices Act has been applied where wrong particulars were given[33] and where the charge contained irrelevant allegations.[34] Counsel for the respondent was asked during the course of the appeal whether he wished to maintain the allegation that there was a breach of condition 15. He indicated that he did not. Thereafter, applying s 43, the charge was read as if the reference to condition 15 were surplusage and ignored. There was no suggestion by counsel for the appellant that the reference in the charge to a breach of condition 15 resulted in any actual prejudice to the appellant in the conduct of the hearing before Talbot J or that the operation of s 43 caused any unfairness in the hearing of the appeal. I cannot see how the reference to condition 15 in the charge was anything but a defect in form.

A further complaint made about the charge was that it alleges that no consent was obtained from Coffs Harbour City Council for the removal of the trees whereas condition 14 refers to the need for approval to be obtained before trees were removed. It was submitted that the word "consent" has a particular meaning under the Environmental and Protection Act when used in s 76(2) and implies more formal procedures than are necessary for the granting of approval under condition 14. Counsel for the respondent sought to amend the charge to delete the word "consent" and insert the word "approval" in its place. Again relying upon s 43 the Court permitted the charge to be amended. This was in my view a defect in form of a most technical nature. I can see no relevant distinction between the two words There was no suggestion that the appellant was prejudiced by the amendment, rather counsel for the appellant believed his client gained some advantage from the change of wording.

Counsel for the appellant contended that the charge was further defective in that it was uncertain or, in the alternative, that it suffered from latent duplicity. This latter complaint refers to a defect in a charge where, notwithstanding that the charge on its face appears to refer to only one offence, as the case is conducted by the prosecution and on the evidence led to support the charge, the charge in reality relates to more than one instance of the offence charged.[35] These complaints are based upon the fact that, at the hearing before Talbot J, the prosecution maintained that the appellant's company was responsible for removing all the trees on the land to be developed and, by doing so, acted in breach of the conditions upon which consent was given for the development. Yet, it was submitted there were at least two types of trees to which the charge could relate. The first group was identified as being those trees within the proposed restriction on use area. It was said that the Council could not approve the removal of those trees because condition 14 required that they be retained. The second group identified was made up of those trees outside that area; the "other trees" in condition 14. Trees in this group could be removed only with the approval of the Council.

It was submitted that the failure of the charge to distinguish between the two groups of trees resulted in actual prejudice to the appellant before Talbot J because neither the prosecuting counsel nor the trial judge had differentiated between these two groups of trees and yet the appellant had different defences available in respect of the different groups of trees[36]. In respect of the first group of trees, it was said that the appellant's defence was that he did not remove those trees, whereas, in respect of the second group, the defence was that the Council had approved the removal of the trees.

I have considerable doubts as to whether there was any uncertainty or latent duplicity in the charge based upon any distinction between the trees on the site and the power of the Council to approve their removal. As Smart J observed during argument, it is not immediately obvious why Council could not lawfully approve the removal of any tree on the site notwithstanding the conditions which it imposed when it gave its consent to the development. However, once again it is unnecessary for the Court to resolve the question of whether the charge was defective in the way suggested. The fact that a charge is duplicitous (whether on its face or upon the evidence led to support it) does not render the charge invalid. It is a defect which is ignored by the operation of s 43 or the defect is cured by requiring the prosecutor to elect which facts are relied upon to prove the charge.[37] Counsel for the respondent indicated that he wished to further particularise the charge by making it clear that the trees referred to were those which were outside the proposed restriction on use area, that is the "other trees" referred to in condition 14. The charge having been limited in this way, there could no longer be any suggestion that the charge was uncertain or duplicitous.

The objections to the form of the charge having been overcome, the Court is in a position to consider the merits of the matter and determine whether the charge, as amended and confined, has been proved by the respondent beyond reasonable doubt. The resolution of this issue in substance depends upon whether the prosecution can prove that there was no reasonable possibility that approval had been given by the Council for the removal of the trees outside the restriction on use area. It was accepted both before Talbot J and in this Court that the offence alleged was one of strict liability. This meant that, so far as the appellant's company was concerned[38], the prosecution was required to prove only that there was no reasonable possibility that approval was given by the Council. However, as the appellant was charged with being an aider and abettor of the company, the prosecution had to prove not only that there was no reasonable possibility that the Council had given approval for the removal of the trees from the site but also that the appellant knew that there was no such reasonable possibility .³⁹

Before Talbot J the appellant and the company, in the event that his Honour found that approval had not in fact been given, relied upon the common law defence to a strict liability offence, being in this case that they had an honest and reasonable belief that approval had been given.[40] However, before us counsel for the appellant frankly and sensibly admitted that the appellant could not rely upon such a defence in this Court. He felt unable to argue that there was evidence that the appellant had such an honest belief or that, if he did, there were reasonable grounds for such a belief. In my view that concession was well-founded.

It is now necessary to consider in some more detail than has so far been necessary the evidence before Talbot J as to the facts and circumstances surrounding the removal of the trees by the appellant's company. Before Talbot J the real issue raised was whether approval for the removal of trees from the site had been given by Mr Neville Green, a landscape architect employed by the Council. As with all witnesses for the prosecution called before Talbot J, an affidavit made by Mr Green was tendered and he was then called to give oral evidence.

In his affidavit Mr Green said that he had been telephoned in March 1994 or early April of that year at his office at the council chambers by the appellant, a person whom he knew personally. Mr Green had been involved, as had the appellant, in discussions concerning the development application when it was before the Council. He set out the conversation which he said he had with the appellant on the telephone as follows:

"Dave Cooper: `I want to remove trees outside the Tree Preservation Area of the site so I can get on with the development'

Neville Green: `To the best of my knowledge, Dave, the removal of trees outside the Tree Preservation Area for the construction of roadways and access to the blocks was approved by the development consent.'

Dave Cooper: `I have talked to National Parks about this and I am getting a letter from them to say that they have got no problems with it."

Neville Green: `If you have got a letter from National Parks, Council would probably have no concerns either."

The evidence of Mr Green that he had such a conversation with the appellant was a matter very much in contention before Talbot J and before us. The defence case is that Mr Green had never had any conversation with the appellant about removal of trees after consent had been given by the Council to the development, but rather that he had spoken about this matter with a consultant engaged by the appellant's company, Mr Palmer. Further, the contents of the conversation were disputed in so far as the version given by Mr Green suggested that it was still a matter for the Council to give specific approval for the removal of trees. However, if this account of the conversation were accepted, it is clear, in my view, that no approval was given by Mr Green on behalf of the Council during that conversation. Mr Green was involved in the Council's Parks and Recreation Branch, and condition 14 indicated that for the purposes of approval there should be consultation with that Branch. However, Mr Green was merely giving his personal view of what the Council's attitude would be to an application to remove trees for the construction of roads and access to the block in light of the consent to the development application.

In cross examination, Mr Green conceded that he had not taken a note of that conversation at the time but that he recorded the conversation from his memory when he made his affidavit on 28 July 1994. He denied that he had any such conversation with Mr Palmer, a man whom he also knew personally, or that he had had any conversation with Mr Palmer on the subject of the removal of trees from the site at all. Although he accepted that tree clearing was involved in the development of the site, he insisted that such tree clearing had to occur with the Council's approval.

Between 30 May and 3 June 1994 it became evident that tree clearing was occurring on the site and the matter was brought to the attention of Mr Kerry Power who was employed as Manager of Strategic and Land Use Planning with the Council. In his affidavit he stated that on 7 June 1994 he telephoned Coopers Constructions and spoke to the appellant. He gave the following account of the relevant part of that conversation:

"Kerry Power: `Dave, are you doing the clearing work up at Korora on Riddel's subdivision?'

Dave Cooper: `Yes'

Kerry Power: `Do you realise that the work is in contravention of the Development Consent?'

Dave Cooper: `In relation to what?'

Kerry Power: `The Consent has conditions on it. You have to get approval for removal of any trees.'

Dave Cooper: `I got approval.'

Kerry Power: `Have you?'

Dave Cooper: `Yes, the National Parks and Wildlife blokes said it was alright to clear it.'

Kerry Power: `I don't think that is right. You should have had approval from Council.'

Dave Cooper: `Why approve the subdivision and then not allow us to clear the trees?'

Kerry Power: `That's not what it says. The subdivision was approved and there is a condition on it saying that you have to get separate approval to remove any trees. It doesn't say you can't remove them - it just says you have to have approval. Have you got a copy of the consent?'

Dave Cooper: `Yes. I have got the consent. I will have to go back to it.'

Kerry Power: "Well, we are just faxing you a letter telling you to stop the work'.

Dave Cooper: `It's finished. It is all finished now. They are just stick raking.'

Kerry Power: `Well it seems a bit late for us, but you will get a letter from us in the fax pretty soon.'

Dave Cooper: `Well, I will have a look at it and get back to you.''

Mr Power immediately after that conversation went to the site and observed bulldozers pushing timber into piles for burning. He saw that most of the land had been cleared including parts of the tree preservation area. On 9 June 1994 Mr Power met the appellant at the appellant's office and had a conversation with him. The following is the relevant part of that conversation as set out in Mr Power's affidavit:

"Kerry Power: `Well, Dave, we've got a problem with this clearing at Korora.'

Dave Cooper: `Well, I don't know, have we got a problem?'

Kerry Power: `It seems to me that you are in contravention of the Development Consent which required approval to the removal of trees.'

Dave Cooper: `I have got that. I have a letter from National Parks. You've got it too.'

Kerry Power: `Yes, there is a letter from the National Parks on our file..........'"

There was then conversation about who was doing the clearing work on the site and the appellant indicated that the timber was rotten and would have been dangerous to houses. The conversation as recorded by Mr Power went on:

"Dave Cooper: `All that timber was rotten. It was dangerous. We wanted Peter Ryan to do some work, but he was frightened to go in there, the trees were so dangerous, so we got Paul Seccombe to do it. They brought some old machines down from Grafton. Even they were scared, the trees were so rotten. We didn't get the Development Approval, Newnham Karl got that[41]. We brought the land with the approval.'

Kerry Power: `But you read the approval. You understand that Condition 14 requires you to get consent for the removal of trees.'

Dave Cooper: `Yes, but we've spoken to everybody, we spoke to Mark Hannon[42] last week about burning the timber, we've had the Ranger and Peter Butler out on the site.'

Robert Lidster[43]: `Dave and I went round all the houses in Korora on the Sunday before we started to tell them we were going to do it. We talked to people in all the houses close to it and if they were home, we left a letter for them.'

Kerry Power: `But that doesn't change the situation. You have still not complied with the condition. You are the owners of the land and you had the work done.............'

Kerry Power: `Well, there is not much more that can be done. I have to report to the Council.'

Dave Cooper: `Well, that should not be necessary. We should be able to sort that out.'

Kerry Power: `Well, I can't do anything about that. I only work there. You should talk to Jeff Wright.'

Dave Cooper: `Well, we'll do that. We will try and sort it out.'"

Mr Power also stated in his affidavit that he had searched the Council's records and found no application for approval to remove trees from the land or any part of it. Nor was there any document granting approval to the appellant. Attached to the affidavit was a copy of the approved plan which had been shaded by Mr Power to show the trees which he said had been removed when he inspected the site following his first conversation with the appellant. This plan showed that all the land in the site outside the restricted use area had been cleared, including the trees marked on the plan as "trees to be retained".

On 15 June a letter was received by the Council from a firm, Gutteridge Haskins & Davey Pty Ltd, under the hand of J Palmer. This firm, and Mr Palmer specifically, had been retained by the appellant's company to liaise with the Council in respect of the subdivision. The letter contained the following statement:

"On or about 17 March 1994, discussions were held between the writer and Neville Green of Coffs Harbour Council's Parks and Recreation Branch. Neville Green was asked whether there would be any intervention by Council over tree clearing (of approved areas) on the site should residents object. The advice received was that all clearing and Koala habitat issues had already been satisfactorily resolved between the original owner, Coffs Harbour City Council and National Parks and Wildlife Service. Neville Green further advised that he saw no reason why tree clearing operations, as per the approved plan, could not proceed. When further pressed on this issue he indicated that the whole issue of Koala habitat was really the responsibility of National Parks and Wildlife Service and that GHD should contact the service for further reassurance."

The letter went on to explain that the National Parks and Wildlife Service had been contacted and had provided a letter to the Council that the Service would not raise any objection to any tree clearing operations on the site carried out in accordance with the approved plan. A copy of the letter from the National Parks and Wildlife Service was attached. Mr Palmer's letter concluded:

"We trust that this submission clarifies the current controversy as to whether Coopers Constructions have consulted with Council regarding tree clearing operations."

It is clear that the letter was asserting that it was Mr Palmer who discussed the removal of trees with Mr Green. Mr Palmer gave evidence to that effect. He indicated that he had explained the conditions of Council's consent to the development application to the appellant and that he had been instructed by the appellant to seek the Council's approval for the removal of trees by consulting with the Parks and Recreation Branch. He said he did this by speaking to Neville Green on 17 March 1994 and that the paragraph of the letter, which has been reproduced above, summarised the conversation which they had. He produced a note which he said he made on the day. The note is in handwriting and is as follows:

"Dave Cooper 17/3/94

* Letter from NP&W.S. re: tree removal

* Liaise with Dave re: levels of road

* 23/3/94 - 1p.m. Contaminated Lands Seminar - Cth C.C.

* Disc. with Nev Green re. NP&W.S"

Mr Palmer gave evidence that, following the conversation with Mr Green, he discussed the matter with the appellant and suggested that they should then contact the National Parks and Wildlife Service and that the appellant concurred with that suggestion. He said that immediately he received the letter from the National Parks and Wildlife Service work commenced to remove all trees that had not been marked on the plan for retention, which in effect was all trees not in the proposed restriction on use area. He said that the site was effectively cleared in accordance with the approved plan.

The appellant gave evidence before Talbot J. He said that he had asked Mr Palmer to liaise with the Council to make sure that there would be no problems in relation to clearing trees. He denied ever speaking to Mr Green about the matter, but rather he said he had been told by Mr Palmer that he had spoken to Mr Green and that there were no problems with removing the trees. He said that after this conversation he believed that he had permission to clear the trees. In cross-examination the appellant conceded that he understood that before the trees were removed he had to have approval from Council. However, he said that he believed that he had been given approval through the conversation between Mr Green and Mr Palmer. He was asked to explain why he had never mentioned such a belief to Mr Power in the conversations with him on 7 June. He said that he was flustered and shocked at the time. He was also questioned about his failure to mention the approval obtained from Mr Green in his conversation with Mr Power on 9 June but he gave no explanation for his failure to mention the matter at that time.

Talbot J made no finding as to who it was that had the conversation with Mr Green, that is whether it was the appellant or Mr Palmer. This was because his Honour found that, even if the conversation was to the effect as contained in the letter written by Mr Palmer to the Council, Mr Green said only that he could see no reason why trees could not be removed "as per the approved plan" whereas his Honour found as a fact that trees had been removed which according to the approved plan were marked "trees to be retained". It seems fairly clear that his Honour had in mind the trees in the restricted use area when he made that finding, although there was evidence before him that the trees outside that area but designated as "trees to be retained" on the approved plan had been removed.

In any event, this Court must consider the matter afresh particularly in light of the limitation of the charge made by counsel for the respondent. To some extent this Court is hindered in determining disputes of facts between the witnesses who gave evidence before his Honour because we have not had the opportunity of observing them. However, it was submitted by Mr Wheelhouse for the appellant that we should accept the evidence of Mr Palmer as to the conversation he said he had with Mr Green because he was to be considered as more reliable that Mr Green. It was submitted that his evidence that it was he who spoke to Mr Green is confirmed by the note he produced and by the fact that he was employed by the appellant for the purpose of liaising with the Council.

I accept that it is likely that it was Mr Palmer who spoke to Mr Green and, although that finding may give rise to a question about Mr Green's reliability, it does not follow that his version of the conversation he said he had in respect of the removal of trees from the site should necessarily be rejected in favour of Mr Palmer's version. Mr Palmer took no note of the contents of the conversation either. Although Mr Palmer purported to relate the substance of the conversation in the letter to the Council written on 14 June 1944 (about a month before Mr Green was required to make a written note of the conversation), the import of the conversation as recorded in the letter is not the seeking of approval to commence clearing trees. Rather the concern on the part of Mr Palmer expressed to Mr Green as revealed in that letter is that residents might object to the clearing of trees and that he wished to have confirmation of the Council's attitude to removing trees if there were opposition. That is the issue on which Mr Green was "further pressed" after he had indicated, according to the letter, that the issue had been resolved and that there was no reason why tree clearing operations could not proceed. It was on this issue that Mr Palmer was advised to seek reassurance from the National Parks and Wildlife Service.

That this was the issue discussed between Mr Green and Mr Palmer is confirmed by the note written by Mr Palmer. It refers to a discussion with Mr Green concerning the National Parks and Wildlife Service. Had the conversation been concerned with obtaining the Council's approval to removing trees, I have no doubt that the note would have recorded that fact and that approval had been given. Further, the letter written by the National Parks and Wildlife as a result of Mr Palmer seeking reassurance refers to the Service having "received concerns from the proponent relating to the possibility of protest by the local residents or the Service if trees are removed during construction". The letter goes on to state that the Service had sighted the restrictions imposed by condition 14 and 15 and "considers that these conditions and the final design if adhered to will protect habitat values of the land".

Notwithstanding the evidence of both the appellant and Mr Palmer that they believed that they needed to obtain approval by Council for removal of any trees on the subdivision and that such approval was given by Mr Green, the letter written by Mr Palmer to the Council makes no reference to such approval having been obtained. This is so even though the clear catalyst for the letter was the assertions of Mr Power, in conversations with the appellant, that no approval had been obtained and that the appellant's company was in breach of the conditions of the consent given by Council.

But to my mind the most cogent evidence that the appellant knew that he had not received approval from the Council, through Mr Green or otherwise, is contained in his conversations with Mr Power. The content of those conversations were not challenged in cross-examination of Mr Power or by the appellant in his evidence. In the first of those conversations the appellant asserted that he had approval but that it was from the National Parks and Wildlife Service. There is no mention of any conversation with Mr Green or even that he had obtained approval from the Council. Yet according to the evidence of both Mr Palmer and the appellant before steps were taken to clear the trees the appellant believed he had received approval to do so from Mr Green.

Even if the failure of the appellant to mention Mr Green's approval in that conversation could possibly be explained by his being flustered or shocked as he said he was, it is impossible to see how that could be so in relation to the second conversation. That meeting was instigated by the appellant to discuss the issue of clearing trees without approval. Yet again the appellant asserts that he has approval from the National Parks and Wildlife Service. When it is put to him that he had to obtain the approval of council under condition 14, the appellant indicates various people to whom he had spoken about the matter, but no mention is made of Mr Green. Rather the appellant proffers an explanation for proceeding to clear the trees because they were rotten and dangerous.

I have no doubt at all that both Mr Palmer and the appellant knew that they had not been given approval by Mr Green on behalf of the Council to remove any trees on the property. They concentrated upon obtaining the support of the National Parks and Wildlife Service in case any interference arose from unhappy residents in the area and, once they received such support in writing, they began to clear the site. The appellant more or less admitted that this was the case in his evidence when he said "my state of mind in relation to tree clearing matters, the governing power has always been the National Parks and Wildlife and not the council". If Mr Palmer believed, as he said he did, that he had received the Council's approval from Mr Green and that was all that was required before the tree clearing could commence, there was no need for him to approach the National Parks and Wildlife Service as he did. He tried to explain this in his evidence as not being a matter of obligation but that he did it "just out of protocol".

In the alternative to the suggestion that approval had been given by Mr Green, it was submitted in this Court, although not before Talbot J, that approval had been obtained otherwise than through Mr Green. It was submitted that, when the Council approved the plan submitted with the development application, it gave approval for removal of trees outside the restricted use area. This argument was based upon the fact that some trees marked on the plan were designated as "trees to be retained" but otherwise the plan indicated "retention of other trees subject to roads services and other buildings". When the Council approved the plan, so the argument ran, it approved removal of the trees necessary for roads, services and buildings and the imposition of condition 14 on the consent could not derogate from that approval.

The short answer to this argument is that there is clear evidence that trees marked upon the plan as "to be retained" which were outside the restricted use area were removed by the appellant's company. Although we were urged not to act upon the evidence of Mr Power to this effect or the plan he shaded showing the area of land cleared of trees, that evidence was uncontradicted before Talbot J either by cross-examination or by the appellant in his evidence. Even if the approval of the plan had the effect of approving the removal of trees for the purposes of roads service and buildings, it did not approve the removal of the trees marked as "to be retained" and condition 14 applied to those at least.

But in my view the whole argument is untenable. The plan was submitted to the Council as part of the development application.[44] The development application is determined by the granting of consent, either unconditionally or subject to conditions, or by refusing consent.[45] In this case consent was granted to the development application subject to conditions, including condition 14. The Council was then obliged to give notice of the determination in the prescribed form and manner.[46] This is what was done in this case by the Notice to Applicant of Determination of a Development Application. In my view, where there is any inconsistency between the plan approved and the conditions in the Notice, it is the Notice which applies because that is the notification of the determination of the development application in accordance with the Act. In any event, I see no inconsistency between the statement on the plan approved and condition 14 as to the removal of trees. Although trees were to be removed to allow the development to proceed, the Council reserved to itself the right to ensure that only such trees as were necessary to be removed were ultimately cleared from the site. In light of what appears to have been considerable public concern about the removal of trees for the development, this does not seem to me to have been an unreasonable attitude of the Council to take. The appellant did not have to accept the conditions imposed upon the consent but could have sought to have them modified.[47]

It was further submitted that approval had impliedly been granted for the removal of trees by the Council's approval of "Engineering drawings for the road, drainage, water and sewerage reticulation details associated with the development". A letter advising Gutteridge Haskins & Davey of this approval was dated 8 June 1994. But the evidence is clear that the removal of trees commenced before that date and that by 7 June at the latest, when Mr Power inspected the site, it was virtually concluded.[48] In any event, I do not believe that this letter could amount to approval as was required by condition 14. The approval to be obtained under that condition was approval after consultation with the Council's Parks and Recreation Branch, and it is clear, in my view, that before any work, which required the removal of trees, could be commenced on the land, the Council's specific approval for removal of trees had to be obtained.

I am satisfied beyond reasonable doubt that the appellant's company removed the trees the subject of the charge in breach of condition 14 of the Notice. I am also satisfied beyond reasonable doubt that the appellant knew that approval by the Council was required under condition 14 and he knew that the company had no such approval when he directed the company to remove the trees. Therefore, I am of the view that the charge has been proved.

An appeal was lodged against the sentence imposed by Talbot J and the costs order made by him. As I have already indicated, the appellant was fined $15,000. The maximum penalty that could have been imposed was a fine of $100,000.[49] However, Talbot J imposed the penalty he did upon the basis that the appellant had removed trees on the site which were both within and outside the tree preservation area. The charge has now been limited to only those trees outside that area and, therefore , consideration must be given to the appropriate penalty on that factual basis.

On 14 November 1997, after the hearing of the appeal and while the judgement of the Court was reserved, an affidavit of the appellant dated 13 November 1997 was filed. The affidavit concerned factual matters which were said to have occurred in August 1994, that is after the trees had been removed and before the appellant had been charged. There was no material filed to explain the purpose for which the affidavit was filed nor was any application made for leave to adduce, what appears to be, additional evidence relating to sentence. After the matter was raised with those representing the appellant, Mr Wheelhouse indicated that he could not support the tender of the affidavit and, therefore, the Court has had no regard to the material contained in it.

The offence which has been found proved is a serious one even limited as it has been in this appeal. The removal of the trees on the site without the Council's approval was a serious breach of the conditions upon which consent had been given to the development application by the Council. This is so even though approval would have been given for the removal of the vast majority of the trees on the site in order that the development could proceed. It was apparent to the appellant that there was considerable public interest in the development and, in particular, concern about the preservation of trees in the area. The possible interference of members of the public in the clearing of trees by the company was a major concern to the appellant. Further, I am satisfied that there were four trees removed from the site by the appellant's company, outside the tree preservation area, which had been marked on the plan as "to be retained".

It is clear that the appellant was anxious to proceed with the development and, when he believed that he had the support of the National Parks and Wildlife Service, he moved to have the site cleared without further consultation with the Council. He took this course notwithstanding that he would have been well aware from his dealings with the Council, when the development application was being considered, of the Council's concern to protect the appearance of the location. The trees were an important part of the landscape in and around the development site and clearly a matter of considerable negotiation between the developers, the Council and the National Parks and Wildlife Service.

It has been submitted that no conviction should be recorded by applying the provisions of s 556A of the Crimes Act. I do not believe that course would be appropriate notwithstanding the good character of the appellant. The offence is not a trivial or technical one and there is nothing in the circumstances in which it was committed which justifies dealing with it in that way. There is no matter that I can discern which would justify the Court in declining to convict and punish the appellant for the offence. There must be an element of general deterrence in dealing with significant breaches of the planning laws. However, the facts before us are less serious than they were before Talbot J because we are not concerned with an allegation that trees were removed from the tree preservation area or from the area adjacent to the development. The less serious nature of the charge should be reflected in the sentence. In my view the appropriate sentence to be imposed upon the appellant is a fine of $5,000. As Talbot J did, I would allow 6 months to pay the fine.

So far as the order for costs is concerned I see no reason why the costs order made by Talbot J should not be confirmed. The order was made after an agreement was reached between the appellant and the respondent. Although the charge before this Court is not identical with that before Talbot J, I cannot see how the nature of the charge had any bearing upon the amount of costs incurred before the trial court or why the amendment of the charge in this Court should result in any different costs order. None of the complaints about the nature of the charge relied upon before us were raised before Talbot J.

The orders I propose are:

1. The appeal against conviction is dismissed.

2. Leave to appeal against sentence is granted and the appeal against sentence is allowed. The fine imposed by Talbot J is quashed and in lieu the appellant is fine the sum of $5,000. The fine is to be paid within six months from today to the Registrar of the Land and Environment Court for payment out to Coffs Harbour Shire Council.

3. The order for costs is confirmed and the costs are to be paid within 6 months from today.

COOPER v COFFS HARBOUR CITY COUNCIL

JUDGMENT

HUNT CJ at CL: I agree with the orders proposed by Howie AJ, for the reasons which he has given.

COOPER v COFFS HARBOUR CITY COUNCIL

JUDGMENT

SMART J: I agree with Howie AJ.

[1] The appellant was charged together with a company, which was also convicted and fined but which has not appealed. There is material which indicates that the company was in liquidation at the time Talbot J came to pass sentence. The order for costs was made jointly and severally against both the appellant and the company.

[2] Section 5AA is concerned with appeals from the exercise of the Supreme Court's summary jurisdiction under the Supreme Court (Summary Jurisdiction) Act 1967.

[3] See Rules 23, 24 and 25A of the Criminal Appeal Rules and Form 1 the effect of which is that the appellant is required to specify grounds of appeal in the notice of appeal and to notify further grounds not included in the notice within 28 days after giving notice of appeal.

⁴ Criminal Appeal Act 1912, s 5AA(3)

[5] NSW Sugar Milling Co-Operative Ltd v Environmental Protection Authority (1992) 59 A. Crim. R. 6.

[6] (1993) 32 NSWLR 683

[7] (1993) 32 NSWLR 683 at 692

[8] Section 5AA(3) was amended by Criminal Appeal( Amendment) Act 1994 and now provides :

Any such appeal is to be by way of rehearing on the evidence ("the original evidence"), if any, given before the proceedings before the supreme Court in its summary jurisdiction.

[9] Section 5AA(3A) was inserted at the same time as s 5AA(3) was amended and provides:

The Court of Criminal Appeal may however give leave to adduce fresh, additional or substituted evidence but only if the court is satisfied that there are special grounds for doing so. If the court does give leave, the appeal is to be by way of rehearing on the original evidence and any fresh, additional or substituted evidence so adduced.

[10] Turnbull v New South Wales Medical Board [1976] 2 NSWLR 281 at 297-298.

[11] CCA, 5 June 1991, unreported

[12] An appeal from a magistrate to the District Court is a hearing de novo in which there is a completely new trial where in the prosecutor must begin again: Ex parte Day ; Re Crampton (1943) 43 SR 349 at 351; R v Longshaw (1990) 20 NSWLR554 at 559-561

¹³ 32 NSWLR 683 at 690F.

[14] Camilleri's Stock Feeds Pty Limited v EPA, above, at 690G.

[15] See Land and Environment Court Act 1979 s 55.

[16] The Notice was issued under s 92(1) of the Environmental Planning and Assessment Act 1979. By s 93(1)(a) of the Act, the consent to the development became effective and operated from the date of consent endorsed on the Notice which in this case was 4 March 1994.

[17] Each of the conditions set out in a note under the condition (which is not reproduced) the reason why the Council had included such a condition by reference to the matters it had to consider under s 90 of the Environmental Planning and Protection Act and the power to impose conditions found in s 91(3) of the Act.

¹⁸ The plan indicated how the site was to be developed including the proposed road giving access to the allotments in the subdivision.

[19] There were other trees identified on the plan which were outside but adjoined the development site.

[20] Section 125(1) provides:

Where any matter or thing is by or under this Act, other than by or under the regulations, directed or forbidden to be done, or where the Minister, the Director, a council or any other person is authorised by or under this Act, other than by or under the regulations, to direct any matter or thing to be done, or to forbid any matter or thing to be done, and that matter or thing if so directed to be done remains undone, or if forbidden to be done is done, a person offending against that direction or prohibition shall be guilty of an offence against this Act.

[21] See s 21(f) which refer to proceedings under s 127 of the Environmental planning and Protection Act 1979. Section 127 of that Act refers to proceedings for an offence against that Act, which clearly included an offence under s 125 of the Act.

[22] Section 41(1) of the Land and Environment Court Act 1979 provides that upon application made to the Court a judge shall make an order ordering the person alleged in the application to have committed an offence punishable in the Court in its summary jurisdiction to appear at a time and place specified in the order to answer the offence charged in the order.

[23] Section 88B of the Conveyancing Act appears in Part 6 Division 4 which is concerned with covenants, easements and other restrictions on the use of land. The section relates to the creation and release of, amongst other things, restrictions on the use of land. Section 88(2)(d) requires any plan which is lodged in the office of the Registrar-General for registration to indicate what restrictions on use of land, is any, are intended to be created benefiting or burdening the land.

[24] These particulars are sometimes called the "essential factual ingredients" of the offence in order to indicate that they must be included in the charge but to distinguish them from the legal ingredients of the offence which must also be specified in the charge: see John L Pty Limited v Attorney General (NSW) [1987] HCA 42; (1987) 163 CLR 508 at 519-520. As to the distinction between essential factual particulars and particulars which are necessary for the defendant to properly defend the charge, see De Romanis v Sibraa [1977] 2 NSWLR 264 at 291. The different consequences that flow from a failure to state an essential legal ingredient of a charge and a failure to give an essential factual ingredient are discussed in Ex parte Lovell; Re Buckley [1938] NSWStRp 12; (1938) 38 SR (NSW) 153 at 173-174.

[25] John L Pty Limited v Attorney General (NSW) at 519-520.

[26] Section 30 relates to an information, summons or warrant in respect of an indictable offence whereas section 65 relates to an information, complaint, summons or warrant for a summary offence. The sections are worded in the same way and provide that the magistrate may grant an adjournment to the defendant where it appears that the defect has deceived or misled the defendant.

[27] (1990) 19 NSWLR 656 at 667.

[28] Ex parte Stanton [1928] NSWStRp 25; (1928) 28 SR (NSW) 516; R v Cassell (CCA(NSW), 24 July 1996, unreported).

[29] [1987] HCA 42; (1987) 163 CLR 508 at 522. But Brennan J (as he then was) was of the view that such a provision would preserve a charge notwithstanding that it suffered from such a defect and was of the view in that case that there was a provision upon which the prosecution could rely, see at 580.

[30] Section 43 provides:

No objection shall be taken or allowed to any application referred to in, or to any order or warrant made or issued under, section 41 or 42 by reason of any alleged defect in it in substance or in form or by reason of any variance between it and the evidence adduced at the proceedings for the offence charged in the application or order"

[31] Land and Environment Court Act s 68(1).

[32] There is some doubt as to whether the Local Court has power to amend a defective information in the absence of an explicit power to do so, see Ex parte Cunliffe (1871) 10 SCR (NSW) L 250 but cf Shiel v Crothers [1933] NSWStRp 8; (1933) 33 SR (NSW) 229 affirmed in Crothers v Sheil [1933] HCA 42; (1933) 49 CLR 399.

[33] Ex parte Kirkpatrick [1916] NSWStRp 86; (1916) 16 SR (NSW) 541.

[34] Ex parte Consolidated Press Ltd; Re Harris [1961] NSWR 236 at 241.

[35] Johnson v Miller [1937] HCA 77; (1937) 59 CLR 467 at 485-486.

[36] I have used the term "defences" for the sake of simplicity but of course the appellant did not have to prove these matters, but rather they had to be disproved by the prosecutor.

[37] Stanton v Abernathy (1990)19 NSWLR at 667-668; Johnson v Miller (1937) 59 CLR at 487-489; 497.

[38] That is the principal in the first degree.

³⁹ In respect of a principal in the second degree to a strict liability offence the prosecution is required to prove that the accused knew of all facts which made the conduct of the principal offender a criminal offence: Giorgianni v The Queen [1985] HCA 29; (1985) 156 CLR 473 at 487, 494, 500-501; R v Buckett (1995) 132 ALR 669 at 677. In the present case it was an element of the offence committed by the principal in the first degree that the council had not given approval. The prosecution, therefore, had to prove that the appellant knew that fact notwithstanding that it did not have to prove knowledge of that fact by the company: Von Lieven v Stewart (1990) 21 NSWLR 52 at 56.

[40] As to strict liability and the common law defence see generally He Kaw Teh v The Queen [1985] HCA 43; (1985) 157 CLR 523 at 532, 572-573. Strictly the common law defence only applied in respect of the liability of the company as a principal in the first degree, but as the appellant was the alter ego of the company any honest and reasonable belief on his part that the council had approved the removal of the trees would have meant that the company was not liable for the offence and, therefore, the appellant could not be guilty of aiding and abetting it.

[41] The Development Application had been prepared by a firm named Newman Karl and Partners in September 1993 with the consent of the then owner of the land.

[42] An employee of the Council in the Technical Liaison Branch to whom the appellant said he spoke in relation to disposing of trees felled.

[43] This was a person who was at the appellant's office when Mr Power arrived and who, according to Mr Power, was present at the conversation.

[44] The Environmental Planning and Assessment Regulation 1980, which was in force at the time of the application, provides only that the application shall be in a prescribed form, see item 26(1). Form 3 provides that a plan of the subject land (in triplicate) must accompany the application.

[45] Environmental Planning and Assessment Act 1979 s 91.

[46] Ibid s 92(1). The form prescribed for the Notice is Form 7 of the Environmental Planning and Assessment regulation 1980, see item 44 of the Regulation.

[47] Environmental Planning and assessment Act 1979 s 102.

[48] There appears to be some confusion as to when Mr Power made his inspection of the site. The affidavit made on 28 July 1994 is clear that it was 7 June 1994 after he had first spoken to the appellant. However when he gave evidence before Talbot J on 16 May 1995 Mr Power was unsure when he went to the site and agreed that it may have been the 2 or 3 June.

[49] Environmental Planning and Assessment Act 1979 s 26(1)