CITATION: Garrett v Freeman (No. 4) [2007] NSWLEC 389

PARTIES:
PROSECUTOR
Stephen Garrett
DEFENDANT
Geoffrey Noel Freeman

FILE NUMBER(S): 50043 of 2005 and 50044 of 2005

CORAM: Lloyd J

KEY ISSUES: Prosecution :- damage habitat of threatened species knowing that the land concerned is habitat of that kind - construction of road - offence committed by corporation - no valid assessment of the activity - person concerned in management of corporation - inconsistent, evasive and self-serving evidence - independent corroboration of evidence required - actual, imputed or constructive knowledge of the contravention

LEGISLATION CITED: Environmental Planning and Assessment Act 1979 Pt 5
Environmental Planning and Assessment Regulation 1994 cl 82
Environmental Planning and Assessment Regulation 2000 cl 228
Evidence Act 1995 s 184
Freedom of Information Act 1989
Interpretation Act 1987 s 21(1), s 50(1)
Local Government Act 1993 s 220, ch 11, s 731
National Parks and Wildlife Act 1974 s 5, s 118D, s 159A, s 169, s 175B
Native Vegetation Conservation Act 1997
Protection of the Environment Operations Act 1997 s 193
Rural Fires Act 1997
State Environmental Planning Policy No 14
Threatened Species Conservation Act 1995 Sch 2
Hastings Local Environmental Plan 2001 cl 8 of Sch 5

CASES CITED: Carltona Ltd v Commissioners of Works [1943] 2 All ER 560;
Centro Properties Limited v Hurstville City Council (2004) 135 LGERA 257;
Director-General of Department of Land and Water Conservation v Greentree [2002] NSWLEC 102;
Edwards v The Queen (1993) 178 CLR 193;
Environment Protection Authority v Goulburn Wool Scour Pty Ltd (2004) 137 LGERA 289;
Garrett v Freeman (No. 2) (2006) 145 LGERA 459;
Garrett v Freeman (No. 3) [2007] NSWLEC 139;
Gee v Council of the Sydney City Council (2004) 137 LGERA 157;
Gunning Sustainable Development Association Inc v Upper Lachlan Council (2005) 138 LGERA 281;
Jugiong Quarries Pty Ltd v Water Administration Ministerial Corporation (Talbot J, 11 May 1995, unreported);
Lakeside Plaza Pty Ltd v Legal & General Properties No 2 Ltd (1992) 76 LGRA 60;
Ostrowski v Palmer (2004) 218 CLR 493;
Parramatta City Council v Hale (1982) 47 LGRA 319;
Shroders Australia Property Management Ltd v Shoalhaven City Council [2001] NSWCA 74;
Springer v Woollahra Municipal Council (2000) 108 LGERA 392;
Stephen Garrett for and on behalf of the Director-General, Department of Environment and Conservation (NSW) v Freeman [2006] NSWLEC 322

DATES OF HEARING: 05/06/2006; 06/06/2006; 07/06/2006; 08/06/2006; 09/06/2006; 13/06/2006; 14/06/2006; 15/06/2006; 11/07/2006; 12/03/2007; 13/03/2007; 14/03/2007; 15/03/2007; 16/03/2007; 19/03/2007; 20/03/2007; 21/03/2007

DATE OF JUDGMENT:
31 July 2007

LEGAL REPRESENTATIVES: PROSECUTOR:
D A Buchanan SC
SOLICITOR:
Stephen Garrett
DEFENDANT:
I J Hemmings (barrister) and E Y Ozen (barrister)
SOLICITORS:
Donovan Oates Hannaford

JUDGMENT:

Contents

Section
Paragraph number/s

Mr Thor Aaso 19 - 28
Mr Scott Anthony Beaumont 29 - 33
Mr Jason Berrigan 34 - 39
Mr Anthony Ward Bischoff 40
Mr Michael Andrew Coulter 41 - 44
Mr Stephen Debus 45 - 46

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Garrett v Freeman (No. 4)

Details

AGLC: Garrett v Freeman (No. 4) [2007] NSWLEC 389
Case: [2007] NSWLEC 389
Decision Date: 31 July 2007

CaseChat Overview and Summary

The defendant, Geoffrey Noel Freeman, has been charged with two offences against s 118D(1) of the National Parks and Wildlife Act 1974. Section 118D(1) states that a person must not, by an act or an omission, do anything that causes damage to any habitat of a threatened species, an endangered population or an endangered ecological community if the person knows that the land concerned is habitat of that kind. Each charge alleges that between approximately 15 September 2003 and 19 December 2003, whilst acting as a person concerned in the management of Port Macquarie-Hastings Council, Freeman committed an offence against s 118D(1) of the National Parks and Wildlife Act by reason of s 175B(1) of that Act, in that the council caused damage to the habitat of the threatened species Tyto capensis and Pseudomys gracilicaudatus by undertaking the construction of road works on land at Partridge Creek, knowing that the land concerned was habitat of that kind. The issues for the court to determine were whether the construction of the roads caused damage to the habitat of the threatened species; whether the act that constituted the offence was essential for the carrying out of an activity within the meaning of Part 5 of the Environmental Planning and Assessment Act 1979 and if so, whether the determining authority complied with that Part; and whether the defendant had knowledge of the contravention of s 118D(1). The court found that the construction of the roads did cause damage to the habitat of the threatened species. It was also found that the act that constituted the offence was an activity within the meaning of Part 5 of the Environmental Planning and Assessment Act and that the determining authority did not comply with that Part. Finally, the court found that Freeman had knowledge of the contravention of s 118D(1). It was held that Freeman was not a credible witness and his evidence was not accepted unless it was independently corroborated.

Orders