Wills v Ianelli & Others - [2008] NSWLEC 300

Land and Environment Court

of New South Wales

CITATION: Wills v Ianelli & Others [2008] NSWLEC 300

PARTIES:
Matters 50001-50003 of 2008
PROSECUTOR
Andrew Garry Wills
DEFENDANT
Antonio Ianelli
Matters 50004-50006 of 2008
PROSECUTOR
Andrew Garry Wills
DEFENDANT
Redbank Fresh Produce Pty Limited
Matters 50007-50009 of 2008
PROSECUTOR
Andrew Gary Wills
DEFENDANT
Cantrala Pty Limited

FILE NUMBER(S): 50001-50009 of 2008

CORAM: Sheahan J

KEY ISSUES: Prosecution :- Excavation on protected land without permit

LEGISLATION CITED: Rivers and Foreshores Improvement Act 1948

CASES CITED: Minister administering the Ports Corporatisation and Waterways Management Act 1995 v Hakim (No.4) [2005] NSWLEC 344

DATES OF HEARING: 23 October 2008

EX TEMPORE JUDGMENT DATE: 23 October 2008

LEGAL REPRESENTATIVES: PROSECUTOR
Ms A Francis
SOLICITORS
Crown Solicitors Office
DEFENDANT
Mr R Foord
SOLICITORS
Denniston & Day

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Justice Sheahan

23 October 2008

50001-50009 of 2008 Wills v Ianelli & Others

EXTEMPORE JUDGMENT

1 His Honour: Section 22B(1) in Part 3A of the Rivers and Foreshores Improvement Act 1948 (“RFI Act”) provides that:

a person must not:

(a) make an excavation on, in or under protected land, or

(b) remove material from protected land, or

(c) do anything which obstructs, or detrimentally affects, the flow of protected waters, or which is likely to do so,

unless the person is either authorised to do so by a permit under this Part and does so in accordance with any conditions to which the permit is subject, or is authorised to do so by the regulations”.

2 Nine related prosecutions were commenced on 9 January 2008 concerning excavations at three locations on protected land between 10 and 25 January 2007, without an authorising permit under Part 3A.

3 Antonio Ianelli is the controlling mind of both the landowning company (Cantrala Pty Ltd) and the farm operating company (Redbank Fresh Produce Pty Ltd) at Dromore Station off the Monaro Highway near Cooma or Bredbo, where Mr Ianelli and interests associated with him grow oats and vegetables. The offences occurred on Dromore Station. Mr Ianelli and each company faced three charges each. He and Cantrala have pleaded guilty to amended (rolled-up) summonses in matters 50001 and 50007. The other seven prosecutions are listed for mention today (50002 and 50003 against Ianelli; 50004, 50005, 50006 against Redbank; and 50008 and 50009 against Cantrala) with a view to their being withdrawn when sentence is imposed in the two matters currently before me.

4 Cantrala held at relevant times four pumping licences under the Water Act 1989 in respect of the Murrumbidgee and Numeralla Rivers, two of which included “cease to pump” conditions requiring Cantrala to cease pumping from the Murrumbidgee River when it falls to a certain level, as measured by reference to discharges from the Murrumbidgee at Mount McDonald and Billilingra gauges. Relevantly, those two licences cover the three sites specified in the charges. Precise title particulars, locational details, etc. are set out in the Agreed Statement 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.

Continue reading Wills v Ianelli & Others

Details

AGLC: Wills v Ianelli [2008] NSWLEC 300
Case: [2008] NSWLEC 300
Decision Date: 23 October 2008

CaseChat Overview and Summary

In Wills v Ianelli & Others, Antonio Ianelli and two companies, Redbank Fresh Produce Pty Ltd and Cantrala Pty Ltd, were prosecuted for conducting excavations on protected land without a permit under the Rivers and Foreshores Improvement Act 1948. The court proceedings involved multiple charges against Ianelli and the companies, relating to excavations at three sites on protected land. The charges stemmed from actions taken by the defendants to facilitate licensed pumping for irrigation purposes during a period when pumping was not authorised. The excavation works were performed without a permit, which would not have been granted due to the potential for environmental harm.

The primary legal issue the court had to address was whether the defendants had contravened the statutory provisions by conducting excavations on protected land without a permit. The court examined the defendants' actions in the context of their obligations under the Rivers and Foreshores Improvement Act 1948 and the potential for significant environmental harm caused by the excavations. The court also considered the culpability of the defendants and mitigating factors, such as the defendants' previous compliance with their obligations and their cooperation with the prosecution.

The court found that the defendants had indeed conducted excavations on protected land without a permit, resulting in substantial environmental harm. While the court acknowledged the defendants' traditional compliance and their efforts to mitigate environmental impact, it emphasised the importance of adhering to the law to protect public interests. The court determined that the offences were serious, warranting penalties that reflect the gravity of the breaches and the need to deter similar conduct in the future. The court imposed fines on Antonio Ianelli and Cantrala Pty Ltd, reflecting the seriousness of the offences and the benefits of the defendants' early guilty pleas.

The court ordered Antonio Ianelli to be fined $12,000 and to pay costs of $25,000, while Cantrala Pty Ltd was fined $32,000 and also ordered to pay costs of $25,000. The remaining charges against the defendants were withdrawn with no orders.

Orders