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Natural Resources Access Regulator v Bao Lin Pty Ltd

Natural Resources Access Regulator v Bao Lin Pty Ltd

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Case Copied 13 April 2022 83 min read

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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

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…

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: [2022] NSWLEC 42
Decision Date: 13 April 2022

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

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

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