May 21 - 27, 2023: Issue 584


Council Victory In Court Over Illegal Clearing Of Trees = 10k For 14 Killed Trees: 'A Poor Outcome' Residents State

Council announced this week it had had a victory in court over the illegal clearing of 14 trees by a developer.

The developer has been convicted by Manly Local Court for the illegal removal of 14 trees. Appearing before Magistrate Denes on 9 May, the defendant pleaded guilty to illegally removing the trees which were required to be retained and protected by a development consent. The defendant was convicted by Manly Court and was ordered to pay a fine of $10,000 plus professional legal costs.

In the judgment, Court found that the removal of 14 trees in contravention of the development consent constituted a serious breach.

Council was first alerted to the issue in September 2021 after receiving a complaint about the removal of a tree at a construction site in North Narrabeen.

On inspection, Council found that 14 trees had been removed in contravention of a development consent. 

Northern Beaches Council Interim CEO Louise Kerr said the case served as an important reminder of the need to comply with development consents.

“Northern Beaches Council is committed to protecting and maintaining trees and bushland, especially threatened species and trees with heritage significance,” Ms Kerr said. “Council has zero tolerance to these types of offences and takes these matters seriously. 

“While these 14 trees have sadly been removed, we hope that this will serve as an important reminder to others in the community to comply with conditions of their development consent and not remove trees without Council permission.”

However, residents have pointed out that this is less than $1000.00 per irreplaceable tree and fines and deterrents should be much more to disincentivise the practice. 

Further, residents state Council needs to have 'more boots on the ground' to ensure DA's are being complied with and to revert to a system where Private Certifiers cannot tick off compliance that allows developers to tear down habitat or allow developers to take over public land adjacent to a development by planting it out. 

One stated: ''It’s all too late after they have been removed or public land taken. Fines are peanuts next to what they gain after the removal or after they have planted out what is and was a passageway so others may not use it. Another now common practice where Council refers us to the Private Certifiers who do not even bother to answer you.''

Another resident has commented that developers who clear trees illegally should have the maximum penalty applied as a deterrent and that this is a very poor outcome. 

Further comments made similar statements.

In November 2018 residents reported the illegal clearing of Sclerophyll Forest At Warriewood, with statements from Council that they would investigate. 

Nothing has been heard since.

Under the Native Vegetation Act 2003,  if you removed a native tree illegally in NSW you could be liable for a fine of up to $1.1 million if prosecuted. The Native Vegetation Act 2003 and the Native Vegetation Regulation 2013 were repealed on August 25th, 2017. Current legislation governing the clearing of native vegetation is the Local Land Services Act 2013 and the Biodiversity Conservation Act 2016.

Under the Biodiversity Conservation Act 2016a 'Dedicated Conservation Zone' definition does not exist. There is Damaging habitat of threatened species or ecological community under which the Maximum penalty is a Tier 1 monetary penalty or imprisonment for 2 years, or both.

The maximum monetary penalty for Tier 1 is:

(a)  in the case of a corporation:

(i)  $1,650,000, and

(ii)  if this Act provides that an additional daily penalty applies to the offence—a further $165,000 for each day the offence continues, and

(iii)  if this Act provides that an additional penalty for each animal or plant applies to the offence—a further $165,000 for each animal or whole plant to which the offence relates, or

(b)  in the case of an individual:

(i)  $330,000, and

(ii)  if this Act provides that an additional daily penalty applies to the offence—a further $33,000 for each day the offence continues, and

(iii)  if this Act provides that an additional penalty for each animal or plant applies to the offence—a further $33,000 for each animal or whole plant to which the offence relates.

Council also have a webpage where you may report Illegal tree works. If the matter is urgent (e.g. happening right in front of you) you can call them.

At the March 2023 Council Meeting Cr.s Korzy and Glanville tabled a Motion, 'BUILDING AND DEVELOPMENT COMPLIANCE', which was unanimously passed, to try and address the non-compliance that is rampant across the LGA where thousands of D.A.'s are approved each year without enough officers to ensure compliance with the Conditions of Consent is occurring - instances of residents contacting Council and being told to take it up with Private Certifiers are growing, along with the abovementioned taking over of public lands and pathways, as well as trees and lower level habitat being cleared - sometimes before a D.A. is even submitted.

That Motion stated:


1. Council note:

A. The leadership role Council plays in fostering a strong compliance culture within the community with regards to compliance with building and development controls.

B. Resourcing of compliance staff dealing with development and building control, and other areas of compliance, are being prioritised for review through the ongoing service levels review being undertaken by Council staff.

C. Council’s Compliance and Enforcement Policy is being currently reviewed by staff, and draft amendments for exhibition will be reported to the May 2023 council meeting.

2. The Chief Executive Officer prepare a report to Council at the May 2023 meeting concerning the following points regarding the private certification scheme:

A. Any issues identified by staff or residents regarding the efficacy of this scheme

B. Any recommendations for improving state legislation dealing with oversight of development and compliance

C. Prepare a letter to the NSW Government, Shadow Planning Spokesperson, Department of Fair Trading, Office of Local Government, and Local Government NSW, highlighting the matters identified in A - B.

3. The Chief Executive Officer prepare a workshop by May 2023 for the Councillors concerning any innovative ideas for improving compliance by the community with building and development regulations. This could include, for example:

A. Proactive and random inspections of building sites

B. Joint inspection ‘blitzes’ with co-regulators such as the NSW EPA

C. Use of new technology to identify illegal development such as clearing of trees

D. Education campaigns to improve a culture of compliance.

4. The Chief Executive Officer report back to Council at the May 2023 meeting with options for resourcing a specialised compliance team responsible for dealing with allegations of unauthorised tree or vegetation clearing.

However, the loss of tree canopy since the the NSW Government introduced the 10/50 Vegetation Clearing Code of Practice, along with D.A. applications that allow the removal of trees and low to ground habitat, continues across Pittwater, visibly reducing places for wildlife, increasing urban heat.

How many are being lost, and not being replaced despite Conditions of Consent requiring the same, is hard to calculate.

One D.A. at Bilgola Plateau, currently open for feedback, seeks to remove 93 trees - most of them 'exempt' according to the application. No document stating whether a fauna count has been conducted is lodged with the application.

The report (S.E.E) states that 'no threatened species will be impacted' on the densely vegetated 3000sqm block, which is teeming with wildlife (according to neighbours), and yet the report (provided to support the development) makes no mention of wildlife. An arborist's report is just that; a list of trees and a visual assessment of their condition. It says nothing of the understorey plants, or fauna. This one concludes that there are only 26 trees to be removed (because they're the protected species) and ignores the other 67 trees as they classified as 'exempt'.

However, local 'exempt' palms provide food for flying foxes and possums when flowering and fruiting, and homes for birds.

There are also two natural waterways coming down the hill from Plateau Park. Both of these creeks cross Lower Plateau road and run into this land where they merge into one single creek (as shown on the Flood Hazard Map). 

The D.A. is to clear the land of what it is stated are 20m high palms, along with a few protected species, to subdivide it into 3 blocks for 3 new homes, which would also require further tree clearing and habitat destruction. This one instance is obviously someone's 'nest egg/retirement' plan, and with little or no money for Council to acquire such sites to keep the fauna corridors and homes they provide, people putting themselves ahead of all else is set to continue - with scores of old growth plants and trees being removed on a weekly basis - and no 'boots on the ground' to ensure that required to be put back in is being complied with and maintained.