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Hornsby Shire Council v Devaney

Hornsby Shire Council v Devaney

Case [2007] NSWLEC 199 13 April 2007

Unlawful Development Consent

Environmental Harm

Remediation and Restoration

Sentencing

Good Behaviour Bond

Environmental Law

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Land and Environment Court

of New South Wales

CITATION: Hornsby Shire Council v Devaney [2007] NSWLEC 199
This decision has been amended. Please see the end of the judgment for a list of the amendments.

PARTIES:
PROSECUTOR:
Hornsby Shire Council
FIRST DEFENDANT:
Allan Leslie Devaney
SECOND DEFENDANT:
Amanda Benson

FILE NUMBER(S): 50035; 50034 of 2006

CORAM: Biscoe J

KEY ISSUES: Environmental Offences :- sentencing - clearing rural land of trees and vegetation without development consent - plea of guilty - first defendant, an experienced earthmoving contractor, wrongly advised young client, the second defendant, that no council approval was required - parity of sentencing - whether first defendant should be convicted and fined and second defendant discharged on condition that she enter into a good behaviour bond - whether alternatively second defendant should be convicted and, if so, whether she should be fined having regard to her low level of culpability and means

LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999 ss 10(1)(b), 10(3), 17, 21A, 22
Environmental Planning and Assessment Act 1979 ss 76A(1)(a), 125, 126(1), 126(3), 149
Fines Act 1996 s 6
Threatened Species Conservation Act 1993 Sch 2

CASES CITED: Byron Shire Council v Fletcher (2005) 143 LGERA 155;
Cameron v Eurobodalla Shire Council (2006) 146 LGERA 349;
Council of Camden v Tax (2004) 137 LGERA 368;
Environment Protection Authority v Barnes [2006] NSWCCA 246;
Environment Protection Authority v Davis [2005] NSWLEC 643;
Environment Protection Authority v Peters [2006] NSWLEC 612;
Garrett v Langmead [2006] NSWLEC 627;
Hornsby Shire Council v Moit [2001] NSWLEC 50;
Laurentiu & Becheru v The Queen (1992) 63 A Crim R 402;
Rahme (1989) 43 A Crim R 81;
R v Thompson (2000) 49 NSWLR 383;
Veen v The Queen (1979) 143 CLR 458;
Veen v The Queen (No 2) (1988) 164 CLR 465

DATES OF HEARING: 4 April 2007

DATE OF JUDGMENT:
13 April 2007

LEGAL REPRESENTATIVES: PROSECUTOR:
Mr T Howard
SOLICITORS:
Home Wilkinson Lowry

1ST DEFENDANT:
Mr A Perkins, solicitor
SOLICITORS:
Colin Biggers & Paisley
2ND DEFENDANT:
Ms A Benson, in person
SOLICITORS:
N/A

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

BISCOE J

13 April 2007

50035 of 2006

HORNSBY SHIRE COUNCIL v ALLAN LESLIE DEVANEY

50034 of 2006

HORNSBY SHIRE COUNCILv AMANDA BENSON
JUDGMENT

1 HIS HONOUR: The defendants have each pleaded guilty to an offence under s 125 of the Environmental Planning and Assessment Act 1979 (EPA Act). The offence is that they carried out development by clearing trees and vegetation on rural land, being development which required development consent under the provisions of an environmental planning instrument which applied to the land, where development consent had not been obtained and was not in force with respect to the development, contrary to s 76A(1)(a) of the EPA Act.

2 The land is known as 27–29 Peebles Road, Arcadia. The relevant environmental planning instrument is the Hornsby Shire Local Environmental Plan 1994 as amended (

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 Hornsby Shire Council v Devaney

Details

AGLC: Hornsby Shire Council v Devaney [2007] NSWLEC 199
Case: [2007] NSWLEC 199
Decision Date: 13 April 2007

CaseChat Overview and Summary

The case of Hornsby Shire Council v Devaney involved two defendants, Allan Leslie Devaney and Amanda Benson, who pleaded guilty to an offence under section 125 of the Environmental Planning and Assessment Act 1979 for carrying out development by clearing trees and vegetation on rural land without obtaining the necessary development consent. The Land and Environment Court of New South Wales, presided over by Biscoe J, had to decide the appropriate penalties for the defendants. The court had to consider the objective gravity of the offence and the subjective circumstances of the defendants, including their culpability, remorse, and means. The court also had to consider the principle of parity in sentencing between the two defendants.

The court found that the objective seriousness of the offence was significant, as the defendants cleared a significant rural area, including 55 trees, without development consent. However, the subjective circumstances of the defendants, including their remorse and early guilty plea, were considered mitigating factors. The court found that greater culpability attached to Mr Devaney's conduct than to Ms Benson's conduct due to his experience as an earthmoving contractor and his advice to Ms Benson that no consent was required. The court also considered Ms Benson's limited means and her proactive commitment to regeneration when deciding whether to convict her and, if so, whether to fine her or discharge her on a good behaviour bond.

Ultimately, the court decided that Mr Devaney should be convicted and fined $20,000, while Ms Benson should be discharged on a good behaviour bond for a term of two years. The court also ordered Ms Benson to carry out the works described in a Bushland Restoration Plan to restore the cleared area. The court's decision took into account the principle of parity in sentencing and the need to balance the objective seriousness of the offence with the subjective circumstances of the defendants.

Orders