The Deputy Chief Magistrate has asked Hobart City Council if he would need council permission to "prune a rose" in his own garden, during a court case about the alleged destruction of a heritage property.
The question was one of many asked by Deputy Chief Magistrate Michael Daly, who repeatedly sought to understand the council's decision to prosecute a high-profile developer over "plants".
Tasmanian property developer Errol Stewart and his company Stewart Family Tasmanian Investments are each charged with one count of undertaking a development contrary to Hobart Interim Planning Scheme 2015.
The charges relate to works undertaken on the heritage gardens at a home on Red Chapel Avenue in the Hobart suburb of Sandy Bay in 2021.
The council has alleged that Mr Stewart demolished or removed parts of the garden.
It claimed that because it was a heritage garden, this required a permit — but no permit was issued prior to the development.
A property listing for the site in 2020 claimed the award-winning gardens "once rivalled elements of Hobart's famous Botanical Gardens".
Mr Stewart has rejected the allegations and appeared before the Magistrates Court today in a contest mention.
'Is this about a garden?'
His lawyer William Griffiths began by explaining to Deputy Chief Magistrate Michael Daly that there had been "several iterations over 100 years of the garden on the property".
He told the court Mr Stewart bought the property in March 2021 for about $2 million, when the "garden was on its last legs".
He said Mr Stewart spent $50,000 to save the heritage trees and re-establish the garden to "its former glory, at least in one of the former iterations".
Mr Griffiths told the court a neighbour complained to the council, which ended up in the paper and led to the council proceedings.
Hobart City Council's lawyer Nathan Street then began to explain what the council was alleging, at which point he was interrupted by Magistrate Daly.
"Is this about a garden?" he asked.
"Yes," replied Mr Street.
"Plants?"
"Yes."
Mr Street went on to explain that as a heritage property, a development application needed to be approved by council before works on the garden were undertaken.
Mr Daly interrupted again to ask if the plants were "old".
Mr Street explained there were specific references in the allegations to "long-lived trees".
He also told the court Mr Stewart was aware he was required to put in a development application to alter the garden and it was underway but works were undertaken before the process was approved.
Exceptions to the rule
Later circling back to prosecuting the development of a garden, Mr Daly asked what the council classified as development in a heritage garden.
"[Does it count] if I clip a hedge or prune a rose?"
Mr Street then had to explain that, no, there were exceptions to the heritage rule.
He went on to explain there were "trees removed, parts changed, grass terraces altered", and that on the day council officers observed the property at Red Chapel Avenue it was "stripped bare".
The development application was subsequently approved though.
Magistrate Daly then turned to Mr Stewart's lawyer.
"How's the garden look now?" he asked.
"Wonderful."
"I bet it does."
Mr Griffiths also told the court his client had removed a great deal of ivy in the redevelopment to save the garden.
"Ivy as thick as your arm, your honour," Mr Griffiths said.
Magistrate Daly then had more questions for the council.
To which Mr Street could not answer.
Magistrate Daly, however, accepted that the council's allegations related to Mr Griffith's alleged failure to wait for a development application to be approved before undertaking works on the garden.
He asked Mr Griffiths why Mr Stewart did not just pay a $2,000 fine, pointing out the cost of a successful prosecution would be "significant".
Mr Griffiths said Mr Stewart did not want his "reputation to be sullied".
Mr Stewart has maintained his not guilty plea and the case is set for hearing at a later date.
