LG Alert - PDI Act enforcement update
The City of Onkaparinga (represented by Kelledy Jones Lawyers) has successfully prosecuted an individual for tree-damaging activity to a significant tree located within a Council road verge. The prosecution has resulted not only in the largest fine yet imposed by the ERD Court for this type of offence but also in the first adverse publicity order (issued under pursuant to section 223 of the Planning, Development and Infrastructure Act 2016 (PDI Act)).
Details below.
Facts
The Defendant in the matter is Mr Bruno Cicchiello, who operates a business known as CTL Tree Services.. He had previously pleaded guilty and had been convicted for similar offences on 2 separate occasions in the past – see City of Charles Sturt v Cicchiello [2007] SAERDC 69 and City of Port Adelaide Enfield v Cicchiello [2012] SAERDC 30.
The Council alleged that:
- the tree was damaged on 27 May 2021 by having more than 30% of its crown removed;
- on the day of the offence, an officer of the Council visited the site. He spoke to the workers who had been damaging the tree. They told him that the Defendant was their boss and had directed them to be there. The Council officer rang the Defendant who identified himself and admitted he was removing trees from the road reserve;
- the officer directed the workers to cease all tree removal activity, to leave the site and to leave large logs on the site for evidence (the tree in question was one of 24 trees on the road verge, by which stage 23 of the 24 trees had been removed);
- one of the tree climbers working on the site called the Defendant with his phone on loud speaker. The Defendant told the worker to remove all the logs and other evidence from the site. When the worker told the Defendant that the officer had directed that this was not to occur, the Defendant was heard telling the worker to then come back at another time to remove them; and
- the logs were and other evidence was, later, removed from the site at a time after the workers and the Council officer had departed the site.
In sentencing, the Defendant confirmed that he did understand the requirement for a development approval to remove a regulated tree. He asserted that he had been told by a developer who was developing the site adjacent to the road verge that it was ‘okay’ to proceed. He proceeded despite not having any documentation to support or confirm what the developer had said.
Outcome
The Court imposed a penalty of $28,000 for the offence (the starting point of $40,000 being reduced by 30% under the Sentencing Act 2017 for the early guilty plea), recorded a criminal conviction and imposed a costs order. In doing so, the Court noted that the tree remains alive and is recovering well and also had regard to the Defendant’s prior offending and the need for deterrence.
The Court additionally issued an adverse publicity order requiring the Defendant, for a period of one (1) continuous month by way of advertisement on all social media, True Local and other websites maintained by him, to publish the following wording:
On 19 November 2024, I pleaded guilty to the offence of damaging a large significant tree. The Tree was badly damaged but has regrown successfully. The Environment Resources and Development Court imposed a fine of $28,000 upon me and recorded a conviction on 10 December 2024
This outcome ensures not only that the Defendant is financially punished and subjected to a recorded conviction but also that his offending behaviour is publicised by way of advertising to members of the public that may consider utilising his services in future.
Given that fines imposed for offending under the PDI Act are sometimes considered by offenders as no more than a ‘cost of doing business’, the quantum of this fine, together with the potential impact of the adverse publicity order, must be considered as both an appropriate penalty and a significant deterrent. It is a particularly positive outcome given its potential to negatively impact future business opportunities for the Defendant which, in turn, will discourage further offending.
For any questions about this case, its outcome or how we can assist your council in pursuing enforcement strategies including prosecutions, civil penalties and civil enforcement proceedings in tree-damaging matters, contact Victoria Shute on 8113 7104 or vshute@kelledyjones.com.au