Director-General of Land and Water Conservation v D.J.L Ashenden [1998] Nswlec 283 (11 November 1998)

[1998] NSWLEC 283

Land and Environment Court

of New South Wales

CITATION:	DIRECTOR-GENERAL OF LAND AND WATER CONSERVATION v. D.J.L. ASHENDEN [1998] NSWLEC 283 (11 November 1998) [1998] NSWLEC 70
PARTIES:	DIRECTOR-GENERAL OF LAND AND WATER CONSERVATION v. D.J.L. ASHENDEN
FILE NUMBER(S):	50085 of 1998
CORAM:	Bignold J
KEY ISSUES:	:- Offence against SEPP No 46 - clearing land without consent - order for rehabilitation of land appropriate penalty.
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979, ss125, 76(2), 126(3)
CASES CITED:
DATES OF HEARING:	11 November 1998
EX TEMPORE JUDGMENT DATE :	11/11/1998
LEGAL REPRESENTATIVES:	Mr CJ Leggat, Barrister Mr JE Robson, Barrister

JUDGMENT:

1. The Defendant has pleaded guilty to a charge of an offence against section 125 of the Environmental Planning and Assessment Act 1979 (the EP&A Act) in that between 11 November 1997 and 10 December 1997 he did clear native vegetation on a property owned by him in the local government area of Inverell known as Olive Grove without obtaining development consent of the Director-General of the Department of Land and Water Conservation as required by State Environmental Planning Policy No. 46 - Protection and Management of Native Vegetation, and contrary to section 76(2) of the EP&A Act..

2. The circumstances of the commission of the offence are not in dispute. The property, Olive Grove, contains 64 hectares, some 25 hectares of which are under cultivation growing olive trees. The area cleared in fact comprises three discrete areas which cumulatively total another 13.75 hectares. The Defendant commissioned a contractor, Dettman, to undertake the clearing work on his behalf. Mr Dettman has been the subject of a similar charge in respect of the clearing activity, he too having entered a plea of guilty. A fine of $5,000 was imposed in respect of that offence.

3. In the present case the parties have been able to present the Court with a comprehensive agreement for the rehabilitation or restoration of the cleared lands and the Defendant has agreed to suffer such an order, which is the preferred rehabilitation option proffered by the Prosecutor, the terms of which have been articulated by the prosecuting counsel and in the fullness of time I will invite him to resubmit a re-engrossed copy of those orders.

4. In my opinion the orders agreed upon for the rehabilitation and restoration of the cleared land constitute satisfactory reparation, when fulfilled, for the offence committed.

5. The Defendant is a person of limited financial means and his personal circumstances are somewhat straightened. In mitigation of the offence is the fact of his early plea of guilty but more significantly is his agreement in the course of today’s trial to suffer the orders for the rehabilitation of the cleared land.

6. In my opinion the imposition of those orders which I propose to make pursuant to the power available under section 126(3) of the EP&A Act, without delving into the limits of the power so conferred, but being satisfied that the orders propounded in the agreement between the parties ostensibly fall within the ambit of the power, is that no further pecuniary penalty is called for in the circumstances of this case. In so concluding I also take into account the fact that the Defendant agrees to pay the Prosecutor’s costs in the sum of $10,000.

7. In all of the circumstances and for the following reasons I make the orders set forth in the Annexure hereto:

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I HEREBY CERTIFY THAT THIS AND THE PRECEDING 2 PAGES ARE A TRUE AND ACCURATE COPY OF THE REASONS FOR JUDGMENT HEREIN OF HIS HONOUR MR JUSTICE N R BIGNOLD.

Associate