Bellingen Shire Council v Darryl Andrew Woollard

[1999] NSWLEC 55

Land and Environment Court

of New South Wales

CITATION:

Bellingen Shire Council V Darryl Andrew Woollard [1999] NSWLEC 55

This judgment revised on:

15/03/99

PARTIES

PROSECUTOR
Bellingen Shire Council

DEFENDANT
Darryl Andrew Woollard

NUMBER:

50027 of 1998

CORAM:

Pearlman J

KEY ISSUES:

:- clearing without consent - guilty plea

LEGISLATION CITED:

clearing without consent - guilty plea

DATES OF HEARING:

02/17/1999

EX TEMPORE JUDGMENT DATE:

02/17/1999

LEGAL REPRESENTATIVES:

PROSECUTOR
Mr J Ayling (Barrister)

SOLICITORS
Abbott Tout

DEFENDANT
Mr J Spencer (Barrister)

SOLICITORS
Murray Backhouse Turner

JUDGMENT:


Introduction

1. In this case the prosecutor, Bellingen Shire Council (“the council”), has brought two charges against the defendant, Darryl Woollard. This morning I was informed that, in relation to proceedings No 50027 of 1998, the defendant would change his plea from a plea of not guilty to a plea of guilty and that the prosecutor, in the exercise of its discretion, has agreed to withdraw proceedings No 50031 of 1998. In those circumstances, the task of the Court is to consider the matters that have been put to me this morning by counsel for both the prosecutor and the defendant in connection with determining the appropriate penalty to impose.

2. A plea of guilty entails an admission of the elements of the offence. This offence arises under the Bellingen Local Environment Plan 1990 (“the LEP”). Under that plan, the land in question, which is Lot 1 DP719131 known as 861 Promised Land Road, Glennifer (“the land”), is zoned 1(a)(1)(Agricultural Protection Zone). Under that zoning, the carrying out of clearing of land which is defined in the LEP requires development consent.

3. The plea of guilty carries with it an admission that the land has been cleared without the prior consent of the council having been obtained pursuant to the LEP.

4. The facts and circumstances of the case are the same in essence as to what happened in the case which I heard yesterday which was a prosecution against the owner of the land (see Bellingen Shire Council v North , 16 February 1999, unreported). The land was in a poor condition and the owner contracted with the defendant to assist in the clearing of the land. There was a third person involved who had larger machinery. According to the record of the defendant's interview with Mr Barlow, who is an officer of the Department of Land and Water Conservation, the defendant came along behind the larger machine and used a stick rake to push the material that was cleared into a number of windrows.

5. According to the evidence of Ms McCartney, the environmental planner employed by the prosecutor, there were 14 windrows of substantial size. Those windrows contained some native vegetation as well as a good deal of lantana and privet and camphor laurel.

6. The defendant admitted in his interview with Mr Barlow that, in the course of carrying out the work that he did as part of the clearing, he did in fact push over some (but not many) trees.

7. Those facts and circumstances constitutes an offence under s 125 of the Environmental Planning and Assessment Act 1979, and accordingly this Court is required to impose a penalty.

8. A number of matters have been put in mitigation. First, I take into account that the defendant was acting under directions from the owner of the land. He was told what to do and he did what he was told to do.

9. In the circumstances where a person is acting professionally in carrying out clearing, that person ought to have some knowledge of the fact that the work requires certain permits. There is some naivety in the fact that the defendant merely accepted instructions, and made no inquiry about the nature of those instructions and whether consent had or had not been obtained. The defendant was the third person involved in carrying out this work. It was done under the direction of the owner. The major work with the major machinery was done by another person. So far as concerns relative culpability, I accept the submissions of Mr Spencer on behalf of the defendant that his degree of culpability ranks as the lowest of the culpability of the three persons involved.

10. I take into account the defendant’s interview with Mr Barlow. That displayed on his part a co-operative attitude towards the investigator and that is a factor which mitigates the severity of the penalty.

11. I take into account, as I am required to do, that the defendant has no prior convictions. I also take into account his circumstances. He is aged 28 years. He is a married man with three children. The consequence of this charge has been that he has lost the employment that he formerly had and has now endeavoured to be gainfully employed in the logging industry. The offence has caused him some financial consequences (as no doubt all these offences cause consequences), and he has suffered some losses which, in his particular circumstances, are hard to bear. He has been required to sell his tractor. He is now leasing a four wheel drive vehicle in order to be able to get about to do some work in the logging industry.

12. I take into account that the prosector and the defendant have agreed on the amount of costs incurred by the prosecutor. They amount to $5,500, which is a considerable sum from the defendant's point of view.

13. I accept his impecunious state. I accept also that he has done what he did without any intention to commit a criminal offence, as Mr Spencer put on his behalf. But the fact is that this is an offence of strict liability and it matters not what the mental element involved is. Nonetheless, it is relevant to the question of penalty.

14. Furthermore, this is not a trivial offence. As I explained in my judgment in Bellingen Shire Council v North , Parliament has seen fit to enact laws for the protection of the environment, no doubt reflecting public attitudes about the protection of the environment. The maximum penalty for this offence was $100,000. That is not a small amount as a maximum. It reflects Parliament's attitude about offences of this kind. The council's consent in these matters is required. It is required for good reason. In enforcing matters of this nature, as I explained in Bellingen Shire Council v North , the council is carrying out its public duty. No doubt that is precisely what Parliament intended the council to do.

15. Taking into account the whole of the circumstances of this case in relation to the defendant, I consider that an appropriate penalty is the amount of $750.

Orders

16. I therefore make the following orders:

(1) I find the defendant convicted of the offence with which he is charged.

(2) I impose a penalty for that offence in the amount of $750.

(3) I order the defendant to pay the prosecutor's costs in the amount of $5500.

(4) I order the defendant to pay the penalty to the Registrar of the court and the costs to the prosecutor within six months of today's date.

(5) The exhibits may be returned.

I HEREBY CERTIFY THAT THIS AND THE PRECEDING 4 PAGES ARE A TRUE AND ACCURATE RECORD OF THE REASONS FOR JUDGMENT HEREIN OF THE HONOURABLE JUSTICE M L PEARLMAN AM.

Associate