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
RESPONDENT
Gittany Constructions Pty Limited
Sutherland Shire CouncilFILE 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 6CASES 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)
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- [2006] NSWLEC 242
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