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Minister for Planning v Fancott Pty Ltd

Minister for Planning v Fancott Pty Ltd

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Land and Environment Court

of New South Wales

CITATION: Minister for Planning v Fancott Pty Ltd [2009] NSWLEC 170

PARTIES:
PROSECUTOR
Minister for Planning
DEFENDANT
Fancott Pty Ltd

FILE NUMBER(S): 50036 of 2009; 50037 of 2009; 50038 of 2009

CORAM: Pepper J

KEY ISSUES: PROSECUTION :- sentence - redevelopment carried out in breach of development consent - development carried out deliberately and recklessly - guilty plea - mitigating factors - appropriate penalty

LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999 ss 3A and 21A
Environment Planning and Assessment Act 1979 ss 76A(1)(b), 81A and 126
State Environmental Planning Policy No 73 – Kosciuszko Ski Resorts
State Environmental Planning Policy (Kosciusko National Park – Alpine Resorts) 2007

CASES CITED: Axer Pty Ltd v Environment Protection Authority (1993) 113 LGERA 357
Bankstown City Council v Taouk Constructions Pty Ltd [2004] NSWLEC 402
Bentley v BGP Properties Pty Ltd (2006) 145 LGERA 234
Cabonne Shire Council v Environment Protection Authority (2001) 115 LGERA 304
Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683
Canterbury City Council v Daoud [2007] NSWLEC 135
Council of the Municipality of Kiama v Furlong [2009] NSWLEC 139
Director-General of the Department of Environment and Climate Change v Rae [2009] NSWLEC 137
Environment Protection Authority v Barnes [2006] NSWCCA 246
Environment Protection Authority v Boral Australian Gypsum Limited [2009] NSWLEC 26
Environment Protection Authority v Cut and Fill Pty Limited [2005] NSWLEC 401
Environment Protection Authority v Patrick Distribution Pty Ltd [2006] NSWLEC 123
Environment Protection Authority v Waste Recycling and Processing Corp (2006) 148 LGERA 299
Eurobodalla Shire Council v Tip It Today Broulee Pty Ltd [2007] NSWLEC 274
Garrett v Freeman (No 5) (2009) 164 LGERA 287
Gittany Constructions Pty Ltd v Sutherland Shire Council (2006) 145 LGERA 189
Hawkesbury City Council v Johnson; Hawkesbury City Council v Johnson Property Group Pty Limited (No 2) [2009] NSWLEC 6
Hoare v The Queen (1989) 167 CLR 348
Markarian v The Queen (2005) 228 CLR 357
Pittwater Council v Scahill (2009) 165 LGERA 289
R v Dodd (1991) 57 A Crim R 349
R v Nichols (1991) 57 A Crim R 391
R v Sukkar 172 A Crim R 151
Veen v The Queen (1979) 143 CLR 458
Veen v The Queen (No 2) (1988) 164 CLR 465

DATES OF HEARING: 30 September 2009

EX TEMPORE JUDGMENT DATE: 1 October 2009

LEGAL REPRESENTATIVES:
PROSECUTOR
Mr T Howard
SOLICITORS
Concordia Pacific
DEFENDANT
Mr J Johnson
SOLICITORS
HWL Ebsworth Solicitors

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

PEPPER J

1 October 2009

50036 of 2009 Minister for Planning v Fancott Pty Ltd
50037 of 2009
50038 of 2009

EX TEMPORE JUDGMENT

Introduction

1 HER HONOUR: The defendant, Fancott Pty Ltd (“Fancott”), pleads guilty to three offences against s 76A(1)(b) of the Environment Planning and Assessment Act 1979 (“the EPAA”).

2 The circumstances of the offences are that Fancott constructed a tourist accommodation lodge at Thredbo called the New Kirk Lodge without having obtained…

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: [2009] NSWLEC 170
Decision Date: 1 October 2009

CaseChat Overview and Summary

Fancott Pty Ltd pleaded guilty to three offences against s 76A(1)(b) of the Environment Planning and Assessment Act 1979. The offences involved the construction of a tourist accommodation lodge at Thredbo called the New Kirk Lodge without having obtained the necessary development consent and in the absence of having obtained a construction certificate. Pepper J imposed a fine of $24,500. In determining the sentence, the Court first considered the objective gravity of the offence. The offences were of medium objective gravity because they were deliberate or reckless, were commercially motivated, and Fancott had control over the activities on the site. The Court then considered the subjective circumstances of Fancott. These circumstances included Fancott’s early guilty plea, contrition and remorse, cooperation with the Department, and payment of the Minister’s costs. These circumstances mitigated the sentence to a reasonable degree. The Court then considered the need to ensure general deterrence. The Court held that the sentence of the Court needed to operate as a powerful factor in preventing the commission of similar offences by persons who may be tempted to do so. The Court also considered the penalties imposed in similar cases. The Court concluded that the penalty imposed was within the range appropriate to the gravity of the particular offence and to the subjective circumstances of the particular offender.

Orders