Bellingen Shire Council v Stuart Kenneth North

[1999] NSWLEC 52

Land and Environment Court

of New South Wales

CITATION:

Bellingen Shire Council V Stuart Kenneth North [1999] NSWLEC 52

This judgment revised on:

11/03/99

PARTIES

PROSECUTOR
Bellingen Shire Council

DEFENDANT
Stuart Kenneth North

NUMBER:

50026 of 1998

CORAM:

Pearlman CJ

KEY ISSUES:

:- clearing without consent

LEGISLATION CITED:

clearing without consent

DATES OF HEARING:

02/15/1999; 02/16/1999

EX TEMPORE JUDGMENT DATE:

02/16/1999

LEGAL REPRESENTATIVES:

PROSECUTOR
Mr J Ayling (Barrister)

SOLICITORS
Abbott Tout

DEFENDANT
Mr M O'Brien (Barrister)

SOLICITORS
Fishburn Watson & O'Brien

JUDGMENT:


Introduction

1. These proceedings initially comprised two prosecutions. After a substantial part of the prosecution's evidence had been completed, the defendant's plea was changed to a plea of guilty in relation to one of those prosecutions, No 50026 of 1998 and, in the exercise of its discretion, the prosecutor elected then not to proceed with the other prosecution and that one, No 50029 of 1998, was withdrawn. Hence I am concerned only with the first of these prosecutions.

2. In that first prosecution it was alleged that, between 8 and 15 August 1997, at premises known as Lot 1, DP 719131, known as 861 Promised Land Road, Gleniffer, and property adjoining thereto, namely the Council's adjoining road reserve and Tuckers Nob State Forest (“the land”), the defendant did aid, abet, counsel or procure development to be carried out, being activities involving the clearing of land zoned 1(a)(1)(Agricultural Protection Zone) under the Bellingen Local Environmental Plan 1990, without the prior consent of Bellingen Shire Council (“the council”) first having been obtained. That is an offence under s 125 of the Environmental Planning and Assessment Act 1979.

3. The plea of guilty carries with it an admission of all the elements of the offence. I am not therefore concerned today with proof of those elements. I am concerned now with the question of penalty. It is appropriate, though, that I speak a little about what occurred.

4. The defendant with his wife acquired the land in 1997. I accept the defendant's evidence, and indeed it is supported by other evidence, that the land, at that time, was in a dilapidated state - the defendant called it “a mess”. The defendant went about a process of clearing the land by engaging contractors to carry out the work. The clearing was substantial. According to the evidence of Miss McCartney, a council officer, there were 14 windrows. Some of them were of a substantial height. For example, in her testimony, windrow 1 was 20m by 20m and windrow 4 was 30m by 18m. I accept that the windrows contained, as well as native vegetation, weed and old fencing. There was lantana, privet, camphor laurel, as well as other species.

5. A question has arisen as to the seriousness of the offence. It has arisen because, under s 556A of the Crimes Act 1900, the Court may, if it considers the offence to have been proved (which is the case here), not proceed to a conviction if it considers the nature of the offence to be trivial.

6. Mr O'Brien, for the defendant, submitted that the seriousness of this offence is reduced by a number of elements. First, he points to context. The land is rural land. It is located in an area where clearing has taken place on other properties. It is a context where it is accepted by some rural communities that some clearing needs to take place in relation to rural land.

7. Secondly, Mr O’Brien submitted that there are also subjective elements which reduce the seriousness of the offence. Mr North proceeded in ignorance of the necessity to obtain development consent and he was motivated by a desire to clean up the “mess” and to beautify the land which he had acquired.

8. They are elements which, as I will presently mention, I take into account in this case in fixing penalty. I do not, however, think that they reduce the seriousness of this offence to one of a trivial nature. It is not a minor offence to clear the amount of land that was cleared here. It was substantial and, in cases of environmental offences in this Court, s 556A is rarely applied. This is not a case for the application of s 556A.

9. However, I take a number of matters into account in mitigation of penalty. First, I take into account the fact that a plea of guilty was entered, although at a very late stage. Secondly, I take into account that Mr North has no prior convictions. Thirdly, I take into account that he is a married man, a successful businessman, with two children and he has acquired this land, initially for his holiday place but ultimately as a house to which he intends to retire.

10. The next matter that I take into account (and it is a significant matter in this case), is that there has been substantial rehabilitation of the land. Mr North gave evidence that he has planted in excess of 3,000 trees. When Miss McCartney arrived at the land, a contractor was seeding the ground. There has been an attempt to plant trees all along the river edge. I take that rehabilitation into account in mitigation.

11. I also take into account that the defendant was selective in the clearing that was done. Some trees remained. The larger trees which were cleared were removed from near the house. The motivation for doing that was fire protection and the dangerous nature of some of the trees which had been damaged and which, according to the defendant's evidence, were sick or dying.

12. The Court should consider whether the defendant has shown any contrition in relation to the commission of the offence. There is no element of contrition in this case. Indeed, one of the matters that Mr North said, in giving oral evidence, was that he is proud of what he has done. He did not indicate that he is in any way sorry for what has occurred.

13. It is relevant to note, as Mr Ayling who appeared for the prosecutor, asked me to note, that the provisions of the Bellingen Local Environmental Plan which have been breached are concerned, amongst other things, with the special protection of riparian land, that is, land adjoining a river.

14. One matter I have not taken into account but about which I should say something is the question of community support. Community support has been the subject of evidence and there have been a number of people sitting in this Court since the case started. This is obviously a case in which the community has an interest. In relation to that, I say only that community support is not relevant to the question of penalty. However, I also say that a prosecution of this nature is brought by the council as part of the Council's duties. The Council is charged under the laws enacted by the Parliament to carry out the public duty of enforcing compliance with the law. The law, in this case, relates to environmental offences. Parliament has seen fit to create offences which arise out of harm to the environment. The legislation signifies, no doubt, a community concern about offences of that nature, and that is expressed by Parliament in its legislation. I detect, as I have indicated, that there is a certain amount of feeling about this case. I can only reiterate that Council had a public duty to bring this prosecution.

15. The maximum penalty, at the time of the offence, was $100,000. Taking into account all the matters that I have outlined, I think the appropriate penalty to impose upon the defendant is an amount of $3,000. I think it is also appropriate to require the defendant to pay the costs of the prosecutor. Those costs shall include the prosecutor’s costs in relation to the preparation of the proceedings No 50029 of 1998 now withdrawn.


Orders

16. Accordingly, my formal orders are as follows

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

(2) I impose upon the defendant a fine of $3,000 to be paid to the Registrar of the Court within one month from today's date.

(3) The defendant must pay the costs of proceedings No 50026 of 1998 and the costs of proceedings No 50029 of 1998 as agreed or as assessed in accordance with s 52 of the Land and Environment Court Act 1979 and the Rules made thereunder.

(4) 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