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Illegal tree removal

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Contact Armstrong Legal:
Sydney: (02) 9261 4555

John Sutton

The Environmental Planning and Assessment Act 1979 provides that the maximum penalty for illegal tree removal or destruction in breach of the Act is a fine of $1.1 million and a further fine of $110,000 for each day that the offence is continuing.

In addition to imposing a fine, the Act permits the court to order a person convicted of illegal tree removal or destruction to plant and maintain new trees to maturity, and to provide security for the performance of any obligation of this kind.

Section 26 of the Environmental Planning and Assessment Act 1979 allows an environmental planning instrument (typically the local environmental plan for a council area) to make provisions in relation to protecting or preserving trees or vegetation. These instruments typically authorise local councils to make Tree Preservation Orders (TPOs).

The breach of a TPO is a criminal offence. Generally speaking, Tree Preservation Orders prohibit the removal of trees 5 metres in height and taller, unless prior approval from the council has been obtained or the tree is an exempt species (usually declared noxious weeds). However, each local government area is subject to specific TPO that is applicable to that area.

There are usually specific requirements in relation to the preparation and public notification of draft TPOs before they can be formally adopted and implemented. A failure by a council to closely follow all of these technical requirements may be a complete defence for subsequent prosecutions under the particular TPO. For example, the Land and Environment Court of NSW has dismissed a summons for illegal tree removal by finding that there was no valid tree preservation order at the date of the alleged offence because of an incorrect description in the relevant newspaper advertisement and council resolution.

The possibility of defending a charge of illegal tree removal on these types of technicalities is one reason why specialist legal advice is so important.





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