Adelaide Court Judgement

Originally Posted by Adelaide Now 17th December 2011

Felled tree passed a 'hug test'



IT WAS a landmark gum tree but it became a pile of firewood when developers knocked it down without approval.
Marion Council took developers and contractors George Stephen Markou, Kyriakos Mouhalos, Ilias Leventeris and associated companies to court.
This week Judge Jack Costello of the Environment Court found them guilty. On Wednesday, they will learn their penalty, which could be as much as $120,000.
But the landowners are free to proceed with their plan to subdivide the block into a lucrative multi-unit development.
The lemon-scented gum tree was known as a local landmark at the back of a modest brick house at 11 Sixth Ave, Ascot Park, court documents show. It stood almost 20m high and its canopy spread more than 20m.
The tree was in "very good health and had good vigour".
Despite being classified a "significant" tree, the developers cut it down without approval about December 12, 2009, the court judgment shows. The land was then owned by Mr Markou and Leventeris Pty Ltd.
Exactly how the tree was measured to see if it met the definition of "significant" was a matter considered by the judge.
As well as evidence from two arborists who had seen the tree, the court heard how the daughter and son-in-law of the former owners of the land had wrapped their arms around the tree to measure it in 2009.
Council subsequently asked them to take part in a series of "tree-hugging" exercises to estimate the tree's girth.
"They were unable, with their other arms outstretched, to touch hands on the other side of the tree (in 2009)," the judgment notes
"In 2011, council officers asked them to conduct a series of `tree-hugging' reconstructions on trees of apparently similar circumference.
"In these reconstructions, they were able to touch hands on both sides of the trunk of a tree with a circumference of 2.8m but not to touch on both sides of a tree measuring 3.2m.
"(The council's) case is that the evidence of these witnesses proves beyond reasonable doubt that the tree was a significant tree."
However, the defendants contended they used string from an "old clothes line" to measure the tree and found it was less than 2m.
Marion Council Mayor Felicity-ann Lewis was pleased with the court outcome and said the council would vigorously protect significant trees and prosecute illegal tree felling.
"We will not tolerate the unlawful removal of significant or regulated trees from our community and we will prosecute those suspected of these acts," Ms Lewis said.
"I hope this case serves as a deterrent to others motivated to remove trees in the City of Marion without approval.
"This was a beautiful gum tree, in good health and a local landmark."
The case comes as new laws come into effect allowing developers far more scope to chop down trees.
Environmental legal specialist Suzanne Dickey from Finlaysons said new rules for the protection of large or significant trees took effect last month.
One of the key changes was that some of the previously protected trees could now be removed without council approval, Ms Dickey said, saving developers and home owners up to $15,000 in council fees and arborists' reports.
"Classification and assessment of trees has morphed into a two tier system - a "regulated" tree which has a trunk circumference of 2m or more, and a "significant" tree previously defined as having a trunk circumference of 2m or more but now applying to those much larger trees with a circumference of 3m or more," she said.

Originally Posted by Adelaide Now 27th December 2011

THREE men have been fined $35,000 each for their roles in knocking down a significant gum tree without council approval.
Two property owners arranged for a healthy lemon-scented gum to be cut down from the back of their Ascot Park property in 2009.
Last week, property owners George Stephen Markou and Ilias Leventeris as well as contractor Kyriakos Mouhalos and associated companies were found guilty by the Environment Court for their illegal conduct.
They were prosecuted by Marion Council.
In handing down his penalty today, Judge Jack Costello reiterated the significance of the case.
"As the prosecution submits, this is very close to the worst case of it's kind," he said.
"The tree was one described as a magnificent specimen and a landmark."
Judge Costello said it was unlikely approval for the removal of the tree would have been given had it been sought at the time.
He repeated evidence from a real estate agent who told the court during the trial that the property would be worth between $80,000 and $100,000 if the tree was removed.
Judge Costello said the parties conduct was motivated by "commercial" gain.
"In terms of mitigation, there was no plea of guilty," he said.
"There wasn't any indication of contrition."
General deterrence was integral in Judge Costello's reason for penalty.
"The environment can be so easily effected and for such a long time," he said.
"In cases such as this general and individual deterrence is important."
Judge Costello said he wanted the community to understand they can not cut down trees without approval and assume they can "get away with it".
He convicted all parties and fined Markou, Leventeris and Mouhalos $35,000 each plus the victims of crime levy and costs.
Outside the Ascot Park property Marion Council mayor Felicity-ann Lewis said the fine was equal to the profit made by the tree's removal.
She said she was pleased with the court's decision and that its findings should act as a timely reminder to other property owners considering similar conduct.
"It's fantastic news," she said.
"These people... have virtually had their profit erased and I think if there are people out there who are thinking about how to make a little bit of profit please be mindful that the community is very passionate about its trees, particularly in suburbs like this were there's very little tree scape.
"I think there's a strong message for developers out there to think carefully before you make an economic decision to cut down trees."