By Casey Neill
A Yarra Ranges Councillor has successfully fought her own shire’s prosecution over tree removal without a permit.
Councillor Fiona McAllister said on 11 September that her win at the Victorian Civil and Administrative Tribunal (VCAT) was a significant victory for common sense.
The council’s local laws department wanted Cr McAllister to pay $17,000 in offset costs and receive a $30,000-plus fine and a conviction for allegedly removing five trees on her Healesville property.
On 30 August, VCAT decided Cr McAllister should only have to plant 15 trees as an offset.
“This is a win for common sense and sets an important precedent to stop people being unfairly intimidated by council local laws departments,” she said.
“Too many people have been prosecuted and intimidated into paying huge fines for tree removal without a planning permit.
“The $17,000 vegetation offset claimed by Yarra Ranges Council was equivalent to taking out a good piece of bush 40 metres by 40 metres – this was ridiculous and excessive.”
Cr McAllister said councils had used the threat of huge legal costs and a refusal to mediate to manipulate people into paying huge fines or engage their own lawyers and run the risk of huge additional costs – including having to pay the council’s legal costs.
“Yarra Ranges Council lawyers wanted me to pay the $17,000 offset and also be fined at the Magistrates’ Court over $30,000. This is bureaucracy out of control,” she said.
The Magistrates’ Court fined her $3000 and did not record a conviction.
Tree removal without a permit is a strict liability offence, so even if it occurs without the landowner’s knowledge or consent they are liable.
“I had nothing to do with the tree removal. It was accidental removal by contractors arranged by my husband but council refused to switch the prosecution to him,” Cr McAllister said.
“The strict liability status of this offence should be revised by the State Government.
“As it stands, if a personal enemy or stranger cuts down a tree on anyone’s property the landowner is personally liable.
“This is a defect in the law.
“The State Government needs to repair the law on this and clarify and simplify the native vegetation removal rules, which don’t properly deal with single tree removal.”
Cr McAllister said her husband’s contractor accidently removed two small trees of about 160 millimetres in diameter but that appealing the VCAT decision to the Supreme Court would be very difficult on that question of fact.
Yarra Ranges Council’s social and economic development director, James Collins said the council followed a thorough process when investigating compliance issues.
“That process is applied consistently to anyone who breaches the law within our municipality,” he said.
“This includes making every attempt to settle compliance issues outside of the courts.
“Taking action in the courts is a last resort.
“The landowner was offered several opportunities to rectify the breach by the payment of a fixed penalty and to rectify the land in accordance with the Yarra Ranges Planning Scheme.”
