Sutherland Shire Council v Upper Class Developments Pty Ltd - [2003] NSWLEC 414

Land and Environment Court

of New South Wales

CITATION: Sutherland Shire Council v Upper Class Developments Pty Limited [2003] NSWLEC 414

PARTIES: Sutherland Shire Council
Upper Class Developments Pty Limited

FILE NUMBER(S): 50060; 50088; 50089; 50090; 50091 of 2003

CORAM: Pain J

KEY ISSUES: Prosecution :- plea of guilty - pollution of waters - breach of development consent - sediment run-off from building site - mitigating factors

LEGISLATION CITED: Protection of the Environment Operations Act 1997, s 120, s 241
Environmental Planning Assessment Act 1979, s.125
Crimes (Sentencing Procedure) Act, s 10, s 22
Fines Act 1996, s 37

CASES CITED: Camilleri Stockfeeds Pty Limited v Environment Protection Authority (1994) 82 LGRA 21;
R v Thompson (2000) 49 NSWLR 383

DATES OF HEARING: 09/12/03

EX TEMPORE
JUDGMENT DATE :
12/11/2003

LEGAL REPRESENTATIVES:

P T Howard
SOLICITORS:
Abbott Tout
DEFENDANT:
D Macedone
SOLICITORS:
Macedone Christie Willis

JUDGMENT:

IN THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

50060 of 2003
50088 - 91 of 2003

Pain J

11 December 2003

SUTHERLAND SHIRE COUNCIL
Prosecutor

v

UPPER CLASS DEVELOPMENTS PTY LIMITED
Defendant

Judgment

1. The Defendant company has pleaded guilty to five charges. All the charges relate to the same premises in Florida Street, Sylvania where the Defendant has been undertaking the demolition of the existing structures and the construction of twenty-five townhouses.

2. Two of the offences charged relate to the pollution of waters under s.120 of the Protection of the Environment Operations Act 1997 (the PEO Act) by the Defendant on 14 February 2003 and 17 April 2003. Three of the offences charged relate to the failure of the Defendant to carry out development in accordance with the conditions of a development consent, an offence under s.125 of the Environmental Planning Assessment Act 1979 (the EP&A Act). These offences relate to events which occurred on 20 January 2003, 14 February 2003 and 20 March 2003.

as required by the conditions of consent.

4. The second category of offences relates to the obstruction of the footpath and nature strip. The particular offences detail variously that top soil debris and/or bricks used in the construction was left on the public footpath and nature strip at the front of the premises in Florida Street.

7. The Land…

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: [2003] NSWLEC 414
Decision Date: 12/11/2003

CaseChat Overview and Summary

In the Land and Environment Court of New South Wales, Sutherland Shire Council prosecuted Upper Class Developments Pty Ltd for five offences related to sediment run-off from a construction site in Sylvania. The offences were breaches of development consent and pollution of waters under the Protection of the Environment Operations Act 1997 and the Environmental Planning Assessment Act 1979, respectively. The court had to decide whether the penalties proposed by the prosecutor were appropriate, taking into account the harm caused, the measures taken to prevent harm, and the culpability of the defendant. The court also had to consider mitigating factors such as the early guilty plea, the lack of prior record, and the efforts made by the defendant to control sediment. The court found that the defendant was culpable but not wilful or negligent, and that the environmental consequences were minimal. The court imposed fines ranging from $1,000 to $6,500 for each offence, and ordered the defendant to pay the prosecutor's costs.

The court found Upper Class Developments Pty Ltd guilty of five offences relating to sediment run-off from a building site in Sylvania. The offences were breaches of development consent and pollution of waters under the Protection of the Environment Operations Act 1997 and the Environmental Planning Assessment Act 1979, respectively. The court had to decide on the appropriate penalty for each offence, taking into account various factors such as the harm caused, the measures taken to prevent harm, and the culpability of the defendant. The court also had to consider mitigating factors such as the early guilty plea, the lack of prior record, and the efforts made by the defendant to control sediment. The court found that the defendant was culpable but not wilful or negligent, and that the environmental consequences were minimal. The court imposed fines ranging from $1,000 to $6,500 for each offence, and ordered the defendant to pay the prosecutor's costs. The court also noted that the totality principle applied to the offences, meaning that the overall level of penalty reflected the level of criminality appropriate to five closely related offences.

Orders