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12 December 2011

Strict Liability for Native Vegetation Removal

Posted in Town Planning

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.

About the Author

Miguel Belmar

Miguel Belmar

Miguel is a Barrister at the Victorian Bar. Miguel has developed a practice in all aspects of land use law including town planning, local government, compulsory acquisition, planning scheme amendments and prosecutions.


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