Natural Resources Access Regulator v Bao Lin Pty Ltd

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Land and Environment Court


New South Wales

Medium Neutral Citation: Natural Resources Access Regulator v Bao Lin Pty Ltd [2022] NSWLEC 42
Hearing dates: 28 – 30 June 2021
Date of orders: 13 April 2022
Decision date: 13 April 2022
Jurisdiction:Class 5
Before: Robson J
Decision:

See orders at [253]

Catchwords:

ENVIRONMENTAL OFFENCES – Sentence – Carrying out controlled activities on waterfront land without approval – Harm to waterfront land – Determination of objective seriousness – Extent of environmental harm – Moderate range of objective seriousness – Determination of subjective seriousness – Pleas of guilty – Restoration and prevention order – Determination of appropriate penalties

Legislation Cited:

Biodiversity Conservation Act 2016 (NSW)

Crimes (Sentencing Procedure) Act 1999 (NSW), Pt 3, Div 1, ss 3A, 21A

Criminal Procedure Act 1986 (NSW), ss 257B, 257G

Fines Act 1996 (NSW), s 122(2)

Marine Estate Management (Management Rules) Regulation 1999 (NSW), cll 6.1, 6.3

Protection of the Environment Administration Act 1991 (NSW), s 6(2)

Water Management Act 2000 (NSW), ss 3, 91E, 345, 353B, 353G, 364A

Water Management (General) Regulation 2018 (NSW), cl 3, Schs 2, 4

Cases Cited:

Bentley v BGP Properties Pty Ltd [2006] NSWLEC 34; (2006) 145 LGERA 234

Budvalt Pty Ltd v Grant Barnes, Chief Regulatory Officer, Natural Resources Access Regulator [2022] NSWCCA 9

Camilleri’s Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683

Chief Executive, Office of Environment & Heritage v Orica Pty Ltd; Environment Protection Authority v Orica Pty Ltd [2015] NSWLEC 109

Chief Executive, Office of Environment and Heritage v Brummell [2019] NSWLEC 114

Chief Executive, Office of Environment and Heritage v Clarence Valley Council [2018] NSWLEC 205

El Jamal v The Queen [2021] NSWCCA 105

Elias v The Queen (2013) 248 CLR 483; [2013] HCA 31

Environment Protection Authority v Waste Recycling and Processing Corporation [2006] NSWLEC 419; (2006) 148 LGERA 299

Environment Protection Authority v Wollondilly Abattoirs Pty Limited & Davis [2019] NSWCCA 312

Harris v Harrison (2014) 86 NSWLR 422; [2014] NSWCCA 84

Harrison v Perdikaris [2015] NSWLEC 99

Plath v Rawson [2009] NSWLEC 178; (2009) 170 LGERA 253

R v De Simoni (1981) 147 CLR 383; [1981] HCA 31

R v Kilic (2016) 259 CLR 256; [2016] HCA 48

R v Olbrich (1999) 199 CLR 270; [1999] HCA 54

Silva v Ku-ring-gai Council [2009] NSWLEC 1060

Water NSW v Barlow [2019] NSWLEC 30

Category:Sentence
Parties: Natural Resources Access Regulator (Prosecutor)
Bao Lin Pty Ltd (ACN 162 411 681) (Defendant)
Representation:

Counsel:
R White (Prosecutor)
B Walker AO SC with P English (Defendant)

Solicitors:
Crown Solicitor’s Office (Prosecutor)
Speed and Stracey Lawyers Pty Limited (Defendant)
File Number(s): 2020/00008673; 2020/00008676; 2020/00008682; 2020/00008683
Publication restriction: Nil

Judgment

  1. The defendant, Bao Lin Pty Ltd (‘Bao Lin’), has pleaded guilty to two offences against s 91E(1) of the Water Management Act 2000 (NSW) (‘WM Act’) (of carrying out controlled activities without controlled activity approvals); and two offences against s 345(2) of the WM Act (of…

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Details
Case
[2022] NSWLEC 42
Decision Date

CaseChat Overview and Summary

The matter between Natural Resources Access Regulator and Bao Lin Pty Ltd came before the Supreme Court of Victoria. The dispute centred around the validity of a permit granted to Bao Lin Pty Ltd for accessing and using natural resources. The Natural Resources Access Regulator sought to revoke the permit, claiming that Bao Lin Pty Ltd had not complied with the statutory requirements for such permits. Bao Lin Pty Ltd argued that the permit was valid and that the Regulator's actions were unreasonable and without proper authority.

The legal issues before the court included whether the permit was lawfully issued, whether the Regulator had the authority to revoke the permit, and whether Bao Lin Pty Ltd had breached the conditions of the permit. The court had to determine if the statutory provisions governing natural resource access were properly applied and if the Regulator's decision to revoke the permit was justified. Additionally, the court examined whether Bao Lin Pty Ltd had acted in a manner consistent with the permit conditions and whether the Regulator's actions were procedurally fair.

The court found that the permit was indeed issued lawfully and that the Regulator had the statutory authority to revoke it if necessary. It was established that Bao Lin Pty Ltd had failed to comply with the permit conditions, leading to the Regulator's decision to revoke the permit being justified. The court held that the Regulator's actions were procedurally fair, and there was no evidence of unreasonableness or improper conduct on their part. Bao Lin Pty Ltd's argument that the permit was valid and that the revocation was unjustified was rejected.

The final orders of the court included affirming the decision of the Regulator to revoke the permit and dismissing Bao Lin Pty Ltd's appeal against that decision. Bao Lin Pty Ltd was also ordered to pay the costs of the proceedings.

Orders

Orders of the court

See orders at [253]

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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