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Gittany Constructions Pty Ltd v Sutherland Shire Council

Gittany Constructions Pty Ltd v Sutherland Shire Council

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Reported Decision: (2006) 145 LGERA 189

Land and Environment Court

of New South Wales

CITATION: Gittany Constructions Pty Limited v Sutherland Shire Council [2006] NSWLEC 242

PARTIES:
APPLICANT
Gittany Constructions Pty Limited
RESPONDENT
Sutherland Shire Council

FILE NUMBER(S): 60001; 60002; 60003 of 2006

CORAM: Preston CJ

KEY ISSUES:
Appeal :- appeal against severity of sentences of Local Court - appeals by way of rehearing - sentences that would be proportionate to objective circumstances of offences and subjective circumstances of offender would be more severe than sentences imposed by Local Court - appellant not warned at hearing of appeals of possibility of more severe sentences - sentences should not be varied by substituting more severe sentences - appropriate order is to dismiss appeals.
Environmental offences:- carrying out development not in accordance with conditions of development consent - removal of native trees required to be protected and retained - removal of indigenous bushland, trees, shrubs, groundcovers and sandstone rock outcrops required to be protected and retained - offender's actions objectively serious - offences foreseen, negligent and the consequences of conduct that was intended by offender - offences committed for reasons of practicality and expediency - mitigating circumstances - lack of prior convictions - early plea of guilty - contrition and remorse - assistance to authorities - inter-relatedness of mitigating circumstances justifies single combined discount - no extra-curial punishment established.

LEGISLATION CITED: Crimes (Local Courts Appeal and Review) Act 2001 (NSW) s 3(3), s 31(2)(a), s 37(1), s 37(2), s 39(2)
Crimes (Sentencing Procedure) Act 1999 s 3A, s 17, s 21A(3)(i), s 21A(3)(m), s 22, s 22(1), s 22(1)(b), s 23(2)(c)
Criminal Appeal Act 1912 s 5AA
Environmental Planning and Assessment Act 1979 (NSW) s 76A(1), s 76A(1)(b), s 96, s 125(1), s 126(1), s 127(3)
Fines Act 1996 (NSW) s 6

CASES CITED: Axer Pty Limited v Environment Protection Authority (1993) 113 LGERA 357;
Bentley v BGP Properties Pty Ltd [2006] NSWLEC 34 (13 February 2006);
Byers v Leichhardt Municipal Council [2006] NSWLEC 82 (13 February 2006);
Byron Shire Council v Fletcher [2005] NSWLEC 706 (25 November 2005);
Cabonne Shire Council v Environment Protection Authority (2001) 115 LGERA 304;
Cameron v Eurobodalla Shire Council [2006] NSWLEC 47 (13 February 2006);
Council of Camden v Tax (2004) 137 LGERA 368;
Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1992) 32 NSWLR 684;
Capral Aluminium Ltd v Workcover Authority of NSW (2000) 49 NSWLR 610;
Carlino v Leichhardt Municipal Council [2005] NSWLEC 198 (27 April 2005);
Cliftleigh Haulage Pty Limited v Byron Shire Council [2005] NSWLEC 692 (1 December 2005);
Cooper v Coffs Harbour Council (1997) 97 LGERA 125;
Director General of National Parks and Wildlife v Wilkinson [2002] NSWLEC 171 (27 September 2002);
Durward Pty Ltd v Sutherland Shire Council [2004] NSWLEC 12 (28 January 2004);
Ebacarb Pty Limited v Environment Protection Authority [2003] NSWLEC 411 (2 December 2003);
Environment Protection Authority v Ampol Ltd (1995) 85 LGERA 443;
Environment Protection Authority v Capdate Pty Ltd (1993)

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.

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Details

Case: [2006] NSWLEC 242
Decision Date: 05/10/2006

CaseChat Overview and Summary

In Gittany Constructions Pty Ltd v Sutherland Shire Council, the Land and Environment Court of New South Wales dismissed an appeal by Gittany Constructions Pty Ltd against the severity of sentences imposed by the Sutherland Local Court for contraventions of the Environmental Planning and Assessment Act 1979 (NSW). The court found that the Local Court had imposed appropriate fines for each offence, taking into account the objective and subjective circumstances of the case. The court held that it was procedurally unfair to increase the penalties without warning the appellant of the possibility of a more severe sentence, as required by established practice or convention. Consequently, the court dismissed the appeals and ordered Gittany Constructions Pty Ltd to pay the respondent's costs of the appeals.

Orders