Minister for Planning v Hunter Quarries Pty Ltd - [2010] NSWLEC 246

Land and Environment Court

of New South Wales

CITATION: Minister for Planning v Hunter Quarries Pty Ltd [2010] NSWLEC 246

PARTIES:
PROSECUTOR:
Minister for Planning
DEFENDANT:
Hunter Quarries Pty Ltd

FILE NUMBER(S): 50025 of 2010

CORAM: Biscoe J

KEY ISSUES: ENVIRONMENTAL OFFENCES :- sentencing - breach of condition of development consent limiting production and transport of quarry material - careless failure to monitor production and transport records - sentencing considerations

LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999, ss 3A, 21A, 22, 23, 54A
Fines Act 1996, s 122
Environmental Planning and Assessment Act 1979, ss 76A, 125, 126

CASES CITED: Georgopolous v R [2010] NSWCCA 246
Markarian v The Queen [2005] HCA 25, 228 CLR 357
Minister for Planning (NSW) v Coalpac Pty Ltd [2008] NSWLEC 271
Minister for Planning v Moolarben Coal Mines Pty Ltd [2010] NSWLEC 147, 175 LGERA 93
R v McNaughton [2006] NSWCCA 242, 66 NSWLR 566
R v Thomson [2000] NSWCCA 309, 49 NSWLR 383

DATES OF HEARING: 26 November 2010

DATE OF JUDGMENT:
26 November 2010

LEGAL REPRESENTATIVES: PROSECUTOR:
Mr I Lloyd QC with Mr M Seymour
SOLICITORS:
Department of Planning

DEFENDANT:
Mr T Howard with Mr J Connors
SOLICITORS:
Harris Wheeler Lawyers

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

BISCOE J

26 November 2010

50025 of 2010

MINISTER FOR PLANNING v HUNTER QUARRIES PTY LTD

JUDGMENT

INTRODUCTION

1 HIS HONOUR: This is a sentencing matter.

2 The defendant, Hunter Quarries Pty Ltd, has operated a hard rock quarry near Karuah since 2002.

3 In 2005 the defendant obtained development consent number 265-10-2004 for an extension of the quarry. The consent described the development as including producing up to 500,000 tonnes of product a year over the next 22 years. Condition 6 provided:

“The applicant shall not produce or transport more than 500,000 tonnes of material a year from the development.”

4 Condition 7 provided that the defendant shall not extract more than 11.2 million tonnes of andesite from the site within the period of the consent. Condition 37 required the defendant to provide annual production data to the Department of Primary Industries and include a copy of that data in its Annual Environmental Management Report. Schedule 4 cl 5(h) provided that the defendant shall submit an Annual Environmental Management Report to the Director-General of the Department of Infrastructure, Planning and Natural Resources, among other things identifying any non-compliance during the previous year.

5 In December 2009 the defendant provided the Department of Planning with its 2008/09 Annual Environmental Management Report and informed the Department that it had breached condition 6 by over-production and over-transportation.

6 The defendant has pleaded guilty to a charge that between 1 August 2008 and 31 July 2009 it committed an offence against s 125(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) by breaching condition 6 of the consent, contrary to s 76A.

7 The amended summons particularises the breach as involving production of 693,047 tonnes…

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: [2010] NSWLEC 246
Decision Date: 26 November 2010

CaseChat Overview and Summary

The Land and Environment Court of New South Wales dealt with a case between the Minister for Planning and Hunter Quarries Pty Ltd, a company that operates a hard rock quarry near Karuah. The case centered around a breach of condition 6 of the defendant's development consent, which limited the annual production and transportation of quarry material to 500,000 tonnes. The defendant admitted to producing and transporting more than the permitted amount over a financial year. The legal issues before the court included the sentencing for the breach of condition, the significance of the defendant's guilty plea, and the consideration of various aggravating and mitigating factors in determining an appropriate penalty.

The court considered the objective seriousness of the offence, taking into account the absence of any deliberate intent, the lack of prior environmental assessment, and the absence of any actual environmental harm. Subjective considerations included the defendant's lack of prior convictions, its positive contributions to local communities, and its expressed remorse. The court also considered the need for general deterrence to uphold the integrity of the regulatory planning process. After applying the instinctive synthesis method of sentencing, the court determined that the appropriate penalty was a fine of $70,000, with half of this amount to be paid to the prosecutor, and the defendant to pay the prosecutor's costs of $23,000.

The final orders of the court were that the defendant was convicted of the offence, fined $70,000, with half of this amount payable to the prosecutor, and the defendant was also ordered to pay the prosecutor's costs of $23,000. The exhibits were to be returned.

Orders