Tree cutting appeal succeeds
An appeal by local resident, Mr Anthony Tauszik, against a conviction for cutting down two Norfolk Island pines in Pearl Beach has been allowed by the Court of Criminal Appeal.
The Court of Criminal Appeal accepted that Mr Tauszik cut the trees down, and rejected his claim that he thought they were within three metres of a neighbour's house.
The appeal succeeded on one technical ground alone, although 16 grounds were raised.
The court found that while Gosford's Planning Scheme Ordinance "made provision" for a prohibition on cutting down trees without the consent of council, that was not the same as "providing" for such a prohibition.
For that reason, the court found that the offence Mr Tauszik was charged with was not forbidden under the Environmental Planning and Assessment Act, under which he was charged, but was in breach of the Council's Tree Preservation Order.
At the time the trees were cut down, an offence against the Environmental Planning and Assessment Act could be prosecuted within 12 months, but an offence against the Tree Preservation Order had to be prosecuted within six months of the date of the offence.
Council charged Mr Tauszik with an offence against the act and started the prosecution less than 12 months after he cut down the trees.
In doing this, council was following previous decisions by the Land and Environment court.
The then Chief Judge of the Land and Environment Court, Justice McClelland, conducted the hearing of the case and agreed with council that Mr Tauszik had been charged with the correct offence and he was convicted and fined.
The Court of Criminal Appeal has decided that the Land and Environment Court got it wrong and has allowed Mr Tauszik's appeal and quashed his conviction.
Council has been ordered to pay Mr Tauszik's costs of the Land and Environment Court hearing.
Council is considering whether it should ask the High Court of Australia to give leave to appeal against today's decision.
Press release, July 5
Marion Newall, Gosford Council