Strict Liability for Native Vegetation Removal

Section 126(2) of the Planning and Environment Act (“the Act”), makes it an offence for an owner of land to breach a Planning Scheme,  planning permit or a section 173 Agreement.

In DC Consolidated Investments Pty Ltd v Maroondah City Council [2011] VSC 634, the Supreme Court has considered section 126(2) of the Act. The question on appeal was whether mens rea is an element of an offence under section 126(2) of the Act. In this case, could the owner of land be liable for a criminal offence when it did not know of the commission of the offence.

The conduct in question was the destruction of native trees in breach of the Maroondah Planning Scheme and clauses in the Scheme which protect native vegetation.

In delivering its judgment and holding that mens rea is not an element of the offence the Supreme Court states:

In summary, the language and statutory context of the section support this view; there is an absence of language in s 126 suggesting the contrary; the subject matter of the statute is the regulation of land use in the public interest, including the conservation of native vegetation and the maintenance of ecological processes and genetic diversity; that subject matter is properly characterisable as regulatory and involving matters of public interest of a kind in which statutory offences have been recognised which do not require proof of mens rea; the imposition of liability without proof of mens rea will directly respond to difficulties of proof otherwise inherent in effective enforcement of the planning scheme, will impose a burden upon owners in circumstances where owners ordinarily have a capacity to manage what occurs on their land, and will have a general deterrent effect; and, lastly, neither the gravity of the offence, nor the penalty applicable, support the view that Parliament intended mens rea be a necessary element of the offence. [34]

As we enter the holiday season when people will have some spare time on their hands, the case is a reminder of the care that must be taken before embarking on native vegetation removal. Clause 52.17 of the Maroondah Planning Scheme, which protects native vegetation is present in most Planning Schemes and therefore applies throughout most of Victoria. It is important to ensure that the correct advice is obtained before undertaking native vegetation removal, relying on a contractor to get it right, will not necessarily be a good defence.

Ancillary Use – The Tests discussed

In Tamarix Pty Ltd v Greater City of Dandenong CC & Anor [2011] VCAT 2182, the Tribunal has considered the concept of ancillary use.

The case involved an egg farm  which operated pursuant to a number of planning permits issued over the years. One of the permits contained the following condition:

“retail sales must not be conducted from the land, other than the sale of eggs produced on the land”

The Applicant sought an amendment to the relevant permit or alternatively a declaration  that the sale of a range of egg-farm related products, including manure, meat and feed, were ancillary to the use of the land as an egg farm.

In its decision confirming that the proposed use was ancillary the Tribunal applied  the following concepts distilled from the case Alphonso v  Casey CC [2006] VCAT 595

    • Ancillary activities are correctly regarded as part of the primary use.
    • It is not particularly relevant whether the ancillary activities are similar or quite distinct from the primary use.
    •  Ancillary activities must be an adjunct , but not a necessary adjunct to the primary use. The ancillary activities can be “optional extras”.
    • The planning merits of the activities [whether a permit would be granted for then if they were a separate use] are not relevant in determining whether the activities are a separate use or  not.
    • A preference or desire for the Responsible Authority to control or restrict activities is not relevant to the assessment.

The Tribunal considered the Responsible Authority’s concern that the sale of egg farm related products would entrench retail sales into a Green Wedge Zone as an irrelevant consideration to the determination of whether the proposed uses were ancillary to the primary use of the land. The Tribunal was of the view that this could become an issue if the activities could be separately undertaken in the zone or grew to such a size that they could be considered a separate use.

As discussed on other postings each case will turn on its own facts. In this proceeding the Tribunal appears to consider the small volume of the extra sales to be a a relevant factor in making a decision in favour of the applicant.