Minister for Planning v Coalpac Pty Ltd

Land and Environment Court

of New South Wales

CITATION:

Minister for Planning v Coalpac Pty Limited [2008] NSWLEC 271

PARTIES:

APPLICANT:
Minister for Planning

RESPONDENT:
Coalpac Pty Limited

FILE NUMBER(S):

50034 of 2008

CORAM:

Biscoe J

KEY ISSUES:

Environmental Offences :- breach of condition of development consent limiting production of saleable coal - intentional; financially motivated breach from which defendant gained substantial financial advantage - fine of $200; 000 imposed.

LEGISLATION CITED:

Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A(2)(m), 21A(3)
Environmental Planning and Assessment Act 1979 (NSW), ss 75D, 125, 126, Pt 3A, Pt 4
Fine Act 1996 (NSW), s 122

CASES CITED:

Bentley v BGP Properties Pty Ltd (2006) 145 LGERA 234
Camilleri’s Stock Feeds Pty Limited v Environment Protection Authority (1992) 32 NSWLR 683
Director of Public Prosecutions (Commonwealth) v Said Khodor El Kahani (1990) 21 NSWLR 370
Penrith City Council v 24/7 Waste Bins Pty Limited [2002] NSWLEC 186

DATES OF HEARING:

11 September 2008

EX TEMPORE JUDGMENT DATE:

11 September 2008

LEGAL REPRESENTATIVES:

APPLICANT:
Mr I Lloyd QC with Mr M Seymour
SOLICITORS:
Holding Redlich

RESPONDENT:
Mr T Howard
SOLICITORS:
Sparke Helmore

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

BISCOE J

11 September 2008

50034 of 2008

MINISTER FOR PLANNING v COALPAC PTY LIMITED

JUDGMENT

1 HIS HONOUR: Coalpac Pty Limited has pleaded guilty to a charge that between 7 September 2006 and 6 September 2007 it committed an offence contrary to s 125 of the Environmental Planning and Assessment Act 1979 (EPA Act). The offence is that on land known as Lot 1 DP 180204 and Lot 113 DP 877190 Part Ben Bullen State Forest, also known as the Invincible Colliery, Coalpac carried out development under a project approval contrary to condition 6 of schedule 2 of the approval in that it produced more than 350,000 tonnes of saleable coal in a year.

Agreed facts

2 There is an agreed statement of facts, as follows.

3 The defendant owns and operates the Invincible Colliery at Bullen Bullen about twenty kilometres north-west of Lithgow.

4 The Invincible Colliery is located on the western slopes of the Great Dividing Range on an elevated plateau intersected by rugged cliff-line valleys. To both the north and west of the site, the topography rises relatively steeply. The colliery can be accessed by its main entrance from the Castlereagh Highway.

5 On or around 31 October 2005, pursuant to Part 3A of the EPA Act, the defendant lodged a major project application dated 27 October 2005. In or around November 2005, the prosecutor determined that the application was subject to Part 3A. The prosecutor considered the application to be duly made on 16 February 2006. The application sought approval for the proposed extension of the Invincible open cut mine and rehabilitation activities (the project).

6 On 7 September 2006, the prosecutor granted project approval (the approval) to the defendant for the project. Condition 6(a) of schedule 2 of the approval provides:

The proponent is permitted to: