Hornsby Shire Council v Moit - [2001] NSWLEC 50

Land and Environment Court

of New South Wales

CITATION: Hornsby Shire Council v Moit [2001] NSWLEC 50 revised - 28/03/2001

PARTIES:
PROSECUTOR:
Hornsby Shire Council
DEFENDANT:
Michael Moit

FILE NUMBER(S): 50023 of 2000 and 50024 of 2000

CORAM: Lloyd J

KEY ISSUES: Environmental Offences :- breach of tree preservation order - development without consent - penalty

LEGISLATION CITED: Electricity (Overhead Line Safety Regulation) 1991 cl 23
Environmental Planning and Assessment Act s 125
s 126
Forestry Act 1916
Hornsby Local Environmental Plan 1994 cl 8
National Parks and Wildlife Act 1974
Noxious Weeds Act 1993

CASES CITED:

DATES OF HEARING: 26/02/2001

DATE OF JUDGMENT:
02/26/2001

LEGAL REPRESENTATIVES:
PROSECUTOR:
Mr D P Wilson (Barrister)
SOLICITORS:
Michell Sillar
DEFENDANT:
Mr P R Clay (Barrister)
SOLICITORS:
John B Hajje & Associates

JUDGMENT:

Hornsby Shire Council
Prosecutor

v
Michael Moit

Defendant

EXTEMPORE JUDGMENT

HIS HONOUR:

1. The defendant has pleaded guilty to two offences against section 125 of the Environmental Planning and Assessment Act 1979 (“the EP&A Act”). The offences arise because section 76A(1) of that Act provides:

76A (1) General If an environmental planning instrument provides that specified development may not be carried out except with development consent, a person must not carry the development out on land to which the provision applies unless:

(a) such a consent has been obtained and is in force...

2. The first offence, in proceedings No. 50023 of 2000, is that between 19 December and 22 December 1999 at Mount Kuring-gai the defendant removed and wilfully destroyed trees to which a tree preservation order made under the Hornsby Local Environmental Plan 1994 applied, without the consent of Hornsby Shire Council.

3. The second offence arises out of the same incident. In those proceedings, No. 50024 of 2000, it is said that the defendant between 19 December and 22 December 1999 at Mount Ku-Rring-Gai carried out development on land without the consent of Hornsby Shire Council contrary to the provisions of that Act.

4. Section 126 of the EP& AAct provides for a penalty which, at the time the offence was committed, was $110,000 for each offence. Moreover, sub-section 126(3) also provides as follows:

(3) Where a person is guilty of an offence involving the destruction of or damage to a tree or vegetation, the court dealing with the offence may, in addition to or in substitution for any pecuniary penalty imposed, direct that person:

a) to plant new trees and vegetation and maintain those trees and vegetation to a mature growth, and
b) provide security for the performance of any obligation imposed under paragraph (a).

5. The offences were committed on land known as Nos. 12 and 14 Yatala Road, Mount Kuring-gai. That land is subject to control under the Hornsby Local Environmental Plan 1994. The land is zoned Industrial B (Light). It is accepted that the clearing of land for any purpose is development for which development consent is required in such a zone.

6. Clause 8 of the Hornsby Local Environmental Plan refers to…

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: [2001] NSWLEC 50
Decision Date: 02/26/2001

CaseChat Overview and Summary

In the Land and Environment Court of New South Wales, the court heard a case brought by Hornsby Shire Council against Michael Moit, addressing two environmental offences. The charges against Mr. Moit included the breach of a tree preservation order and development without consent, both of which are violations of the Environmental Planning and Assessment Act 1979. The offences occurred between 19 and 22 December 1999 at Mount Kuring-gai, where Mr. Moit removed and destroyed trees subject to a preservation order without the requisite consent from Hornsby Shire Council. Furthermore, he carried out development on the land without obtaining the necessary development consent, as mandated by the same Act.

The court needed to determine the appropriate penalty for the breaches committed by Mr. Moit, considering both the statutory maximum penalty and the mitigating factors such as the defendant's plea of guilty and the potential for environmental harm. The Environmental Planning and Assessment Act 1979 provides for a penalty of up to $110,000 for each offence. However, the court also had to consider the principle of proportionality and the deterrent effect of the penalty, given that both offences arose from a single incident. Additionally, the court was required to consider any remediation measures that Mr. Moit could undertake to mitigate the environmental impact of his actions.

In delivering the judgment, the court found Mr. Moit guilty on both counts. The court acknowledged that Mr. Moit, being an employee of a company involved in earthworks and demolition, should have been particularly aware of the illegality of clearing trees without consent. Despite this, the court applied a 20% discount to the penalty due to Mr. Moit’s early guilty plea. The court also considered the potential environmental harm, which included the impact on threatened species and the risk of erosion and weed growth. After weighing these factors, the court imposed a combined penalty of $50,000, reduced to $40,000 due to the guilty plea. Additionally, Mr. Moit was ordered to implement a landscape rehabilitation plan to mitigate the environmental impact of his actions.

Orders