Destroy Tree Without Permit – Unconditional Dismissal

Our client was charged with several offences under section 126 of the Planning and Environment Act 1987 (Vic) related to destroying tress without permit. The case was unusual as it involved a prosecution based upon absolute liability. Many offences in our justice system require the prosecution to prove that the wrongful act was committed with the requisite intent on the part of the offender. But there are clear exceptions to this rule.

One of these exceptions refers to offences for which strict or absolute liability applies. A strict or absolute liability offence does not require the prosecution to provide that an offender acted with a guilty mind, or that they intended to commit the offence that brings them to court. A defence of honest and reasonable mistake applies to offences of strict liability however that same defence does not apply to absolute liability offences.

What is alleged to have occured?
The facts were that 2 oak trees that were the subject of a heritage overlay on a property he owned had been deliberately damaged, and subsequent to that damage had died.

The client was charged under section 126 of the Planning and Environment Act 1987 which conferred absolute liability upon him on the basis that he was the registered proprietor at the time the trees were alleged to be damaged. The council could not contend that the client was in any way complicit in the offending, or that he had any knowledge of the damage to the tree. The council had to concede that our client had nothing to gain by damaging the tree, as it had occurred already after our client had sold his land although before the settlement was finalised with the new owners. His liability for the offences attached simply because he was the owner of the subject land.

What happened at court?
The client co-operated fully with the council investigators. He provided very forthright answers in his record of interview, where his lack of knowledge as to the damage done to the trees was very apparent. Our client had no criminal history and a conviction may jeopardise his chances of securing a position with the Victorian Police force.

We acted on the client’s behalf at the Heidelberg Magistrates’ Court on the charge of Destroy Tree Without Permit.

After negotiations with the prosecutor, 2 charges were withdrawn. An application for diversion was also sought but was refused by the prosecution. The matter proceeded as a plea to 2 offences under section 126 of the Planning and Environment Act 1987.

Submissions to the court emphasised that the only thing our client could have done to prevent the offence was (at his own expense) to install temporary fencing around the trees in question. It was made clear that our client had done nothing other than simply being the registered proprietor during a period where the land had been sold, and that he had not actually occupied the land at any point.

Although the offences do not carry the possibility of imprisonment, each offence under section 126 of the Planning and Environment Act 1987 (Vic) carries a maximum penalty of 1,200 penalty units.

What was the result?
After submissions, the magistrate was persuaded to find the charges proven but take no further actions (unconditional dismissal under section 76 of the Magistrates Court Act). Importantly, this outcome for a case of Destroy Tree Without Permit did not involve the court imposing a conviction.

Elements of the Offence to Contravene Scheme, Permit or Agreement – section 126(2):
  • The accused is the owner of a subject land; and
  • The subject land was used or developed in contravention of a planning scheme, a permit, or an agreement under section 173; or
  • There was a failure to comply with any planning scheme, permit, or agreement under section 173 applying to the land.

DISCLAIMER: This is a real case study of an actual case from our files. Details pertaining to the client have been changed to protect their privacy. The sentence imposed and the charge have not been altered. These case studies are published to demonstrate real outcomes and give an indication of possible tariffs in Court. We do not guarantee a similar case on these charges will get the same result. Please note that we post results at our discretion, therefore while many case studies are average results, others are notable for their exceptional outcomes. PUBLISHED 11/09/2018