Repeat offender faces fine for clearing trees

A Woodford couple could face a maximum penalty of $220,000 after appearing in Katoomba Local Court on charges relating to clearing trees on their land.

Contrary to the 10/50 Code of Practice:  The Woodford property after the tree clearing, and (inset) an aerial shot before the vegetation was removed. Blue Mountains City Council pursued legal action against the Woodford homeowners David and Lyn McKenzie following the clearing of native vegetation around their home which was visible from the highway.

Contrary to the 10/50 Code of Practice: The Woodford property after the tree clearing, and (inset) an aerial shot before the vegetation was removed. Blue Mountains City Council pursued legal action against the Woodford homeowners David and Lyn McKenzie following the clearing of native vegetation around their home which was visible from the highway.

Lyn McKenzie, of 18-20 Old Bathurst Road, has pleaded guilty to “do thing forbidden to be done under [the Environmental Planning and Assessment] Act” of 1979. The court heard she was convicted of a similar land clearing offence a decade ago.

Council's legal team and council officers leaving the court: Barrister Dr James Smith  (front right) tendered council aerial maps and photographs showing a previous tree-lined escarpment and the damage afterwards. He said the McKenzies actions had been wilful and deliberate and had undermined the planning processes of the Mountains, and the chance for other residents to object. He said an important message of general deterrence needed to be sent to the community.

Council's legal team and council officers leaving the court: Barrister Dr James Smith (front right) tendered council aerial maps and photographs showing a previous tree-lined escarpment and the damage afterwards. He said the McKenzies actions had been wilful and deliberate and had undermined the planning processes of the Mountains, and the chance for other residents to object. He said an important message of general deterrence needed to be sent to the community.

Her husband, David McKenzie has also pleaded guilty to three counts under the Act. It relates to him having illegal shelters and shipping containers on their land, turning a carport into a home office and converting a garage into a building with bathroom and deck.

The couple came to the attention of the public followed the alleged illegal clearing of 1400 square metres of native vegetation at the front and rear of the property in early 2016. They had only recently purchased the $1.3 million property. A Blue Mountains Conservation Society member saw the clearing from the highway and referred the matter to the Office of Environment and Heritage and Blue Mountains City Council.

Much of the time in court on November 20 was taken up by a lengthy discussion over Mr McKenzie’s mental wellbeing.

Barrister Frances Lalic, representing the couple, tendered a series of medical reports from NSW hospitals, as well as psychologist and psychiatrist reports. She appealed for the matter to be dealt with under Section 32 (which applies to a defendant with a mental condition for which treatment is available in a mental health facility).

“This is a personal tragedy for Mr and Mrs McKenzie,” she said.

But Magistrate Fiona Toose said she had “difficulty in accepting” that argument, appealing for records to show their capacity to pay a fine.

Barrister Dr James Smith tendered council aerial maps and photographs showing a previous tree-lined escarpment and the damage afterwards. He said the McKenzies actions had been wilful and deliberate and had undermined the planning processes of the Mountains, and the chance for other residents to object. He said an important message of general deterrence needed to be sent to the community.

Dr Smith did not contest the business income tax report of the couple’s company (which showed a loss) when finally tendered to the court, but he asked that individual bank accounts, details of investment properties and mortgage documents on their home and factories also be supplied.

“The defendants have not been in the [witness] box so we can ask them [about their financial records],” he told the magistrate.

Ms Lalic said much of the development had been retrospectively approved and the gardens had been remediated at a cost of almost $80,000.  The clearing had been “inadvertent [and] a complete oversight” because the couple had wanted “a formal look” and to “tidy the place up a bit”. 

Dr Smith said private building certificates did not equal proper development applications.

“It’s not a retrospective approval, it’s just an endorsement it is structurally sound and council won’t order it’s demolition for seven years.”

The court heard in relation to the clearing, council only took action on five long lived woody perennial plants, four metres or more in height and/or with a crown spread of more than four metres. Some others trees that were removed had been found to have wood boring insects in them.

Council legal costs of $30,920 are also being sought in the case. The previous owners of the property were in court to hear the proceedings but declined to comment. 

The pair will be sentenced on February 25.