Illegal Tree Removal and Destruction – A “Growing” Issue

The illegal removal or destruction of trees is a growing issue in NSW that has a maximum penalty, under the Environmental Planning and Assessment Act 1979, of $1.1 million, plus an additional fine of $110,000 for each day the offence continues.

As the world becomes more environmentally friendly there is mounting pressure for local Governments to promote methods for sustainable living and green technology. An offshoot of this pressure is the community’s drive to protect trees, which was demonstrated here in Newcastle in 2011 when a large group of protesters fought hard for many months to save a number of the iconic Laman Street fig trees from being cut down by the Council. Though the protesters were unsuccessful in their attempt, the event highlighted how much our community cares about the protection of trees and brought this issue to light via mass media attention. You can read more about this event, including council decisions, by clicking here.

More recently, Kogarah Council demonstrated that it is serious about the protection of trees after a property owner received a fine of more than $40,000 for the unlawful removal of five mature trees, and lopping a further two trees without the Council’s consent. This marked the Council’s second successful prosecution for illegal tree removal, following an earlier fine of more than $30,000 in August 2012.

In addition to being fined for the illegal removal and destruction of trees, the Act also permits the Court to order the offending party to plant and maintain new trees to maturity, and to demonstrate to the Court that they have put in place security measures to ensure the newly planted trees will grow to maturity. In relation to the $40,000 fine issued by Kogarah Council, $8000 was set aside for replanting costs.

Section 26 of the Act allows an ‘environmental planning instrument’ (typically the local environmental plan for a designated Council area) to make provisions in relation to the protection and preservation of trees or surrounding vegetation. This authorises local Councils to make Tree Preservation Orders (TPOs). Breaching a TPO is technically considered to be a criminal offence, which is another reason why the removal and destruction of trees is considered to be a very serious issue.

TPOs generally prohibit the removal or destruction of trees that are 5 metres in height or taller, unless prior approval has been granted by the Council, or the tree has been formally classified by an arborist as an exempt species (this means it has to be declared a noxious weed). However, each local Government area is different and is subject to whatever specific TPO is applicable to that area.

Before TPOs are formally adopted and implemented, Councils must follow a thorough process to ensure they meet specific requirements that relate to the TPO’s preparation and the notification of the public. If it can be proved that the Council failed to follow this process and meet the requirements it could mean a complete defence for any subsequent prosecution under that TPO. This is one of many reasons why you should seek specialist legal advice if you are faced with charges for the illegal removal or destruction of trees.