CITATION: Garrett v Freeman (No. 5); Garrett v Port Macquarie Hastings Council; Carter v Port Macquarie Hastings Council [2009] NSWLEC 1

PARTIES:
Nos. 50043 of 2005 & 50044 of 2005
PROSECUTOR:
Stephen Garrett
DEFENDANT:
Geoffrey Noel Freeman
Nos. 50040 of 2005; 50041 of 2005 & 50042 of 2005
PROSECUTOR:
Stephen Garrett
DEFENDANT:
Port Macquarie-Hastings Council
No. 50012 of 2005
PROSECUTOR:
Peter Carter
DEFENDANT:
Port-Macquarie Hastings Council

FILE NUMBER(S): 50040 of 2005; 50041 of 2005; 50042 of 2005; 50043 of 2005; 50044 of 2005 & 50012 of 2005

CORAM: Lloyd J

KEY ISSUES:
ENVIRONMENTAL OFFENCES :- Penalty - offences committed by a person concerned in the management of a corporation - plea of not guilty - conviction - damage to threatened species habitat - construction of roads - no valid environmental assessment of the activity - no actual harm to species - totality principle
Penalty - offences committed by a corporation- guilty plea -damage to threatened species habitat - construction of roads - no valid environmental assessment of the activity - no actual harm to species - totality principle
Penalty - offence committed by a corporation - carrying out reclamation work without a permit - guilty plea- damage to aquatic environment - totality principle

LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999 ss 3A, 10, 14, 17, 21A, 22, 23
Criminal Procedure Act 1986 s 253 (repealed)
Criminal Procedure Act 1986 ss 257A-257G
Environmental Planning and Assessment Act 1979 Pt 5 ss 5A, 111, 112
Fines Act 1996 ss 6, 122
Fisheries Management Act 1994 ss 3, 6, 198, 198A, 200, 203, 220
Local Government Act 1993 Ch 11, s 220
National Parks and Wildlife Act 1974 ss 2A, 5, 118D, 118G, 137, 138, 175A, 175B, 176(3)
Threatened Species Conservation Act 1995 s 3

CASES CITED: Axer Pty Ltd v Environment Protection Authority (1993) 113 LGERA 357
Bentley v BGP Properties Pty Ltd (2006) 145 LGERA 234
Bentley v Gordon [2005] NSWLEC 695
Camilleri’s Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683
Cameron v Eurobodalla Shire Council (2006) 146 LGERA 349
Carmody v Brancourts Nominees Pty Ltd (No.2) [2003] NSWLEC 84
Carter v Wall [2002] NSWLEC 124
Director General of National Parks and Wildlife v Wilkinson [2002] NSWLEC 171
Environment Protection Authority v Barnes [2006] NSWCCA 246
Environment Protection Authority v Capdate Pty Ltd (1993) 78 LGERA 349
Environment Protection Authority v Middle Harbour Constructions Pty Ltd (2002) 119 LGERA 440
Environment Protection Authority v Snowy Hydro Ltd (2008) 162 LGERA 273
Environment Protection Authority v Tenterfield (2000) 112 LGERA 173
Environment Protection Authority v Virotec International Ltd [2002] NSWLEC 110
Environment Protection Authority v Waste Recycling and Processing Corp (2006) 148 LGERA 299
Garrett v Freeman (No.3) [2007] NSWLEC 139
Garrett v Freeman (No.4) [2007] NSWLEC 389
Garrett v Williams (2006) 160 LGERA 115
Gittany Constructions Pty Ltd v Sutherland Shire Council (2006) 145 LGERA 189
Latoudis v Casey (1990) 170 CLR…

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 5)

Details

AGLC: Garrett v Freeman (No 5) [2009] NSWLEC 1
Case: [2009] NSWLEC 1
Decision Date: 6 February 2009

CaseChat Overview and Summary

This case involved five related prosecutions for environmental offences against Mr Geoffrey Noel Freeman and Port Macquarie Hastings Council (the Council) for constructing roads on land that was habitat of threatened species. The offences arose from the same course of conduct, namely the construction of roads on land owned by the Council at Partridge Creek between 15 September 2003 and 19 December 2003. The Council pleaded guilty to three charges under the National Parks and Wildlife Act 1974 for causing damage to the habitat of threatened species by constructing roads without a valid environmental assessment. Mr Freeman pleaded not guilty to two charges under the same Act and was found guilty after a 17-day trial. The Council also pleaded guilty to a charge under the Fisheries Management Act 1994 for carrying out reclamation work without a permit.

The court found that the construction of the roads caused significant damage to the habitat of the threatened species, including the Eastern Chestnut Mouse, the Grass Owl, and the Wallum Froglet. The court also found that the Council had failed to conduct a valid environmental assessment before undertaking the road construction, and that Mr Freeman, as a person concerned in the management of the Council, had knowledge of the need for such an assessment but deliberately chose not to comply.

The court imposed fines and ordered the payment of costs, taking into account the seriousness of the offences, the need for deterrence, and the Council's remediation efforts. The Council was fined $35,000 for the offence under the Fisheries Management Act 1994 and ordered to pay the prosecutor's costs in the sum of $80,000. Mr Freeman was fined $57,000 for the offences under the National Parks and Wildlife Act 1974 and ordered to pay the prosecutor's costs in the sum of $167,500.

Orders