BURWOOD COUNCIL v. ANTHONY ROBERT ANDREW & CYNTHIA MARY ANDREW [1998] NSWLEC 7 (10 February 1998) [1998] NSWLEC 39

BURWOOD COUNCIL v. ANTHONY ROBERT ANDREW & CYNTHIA MARY ANDREW [1998] NSWLEC 7 (10 February 1998) [1998] NSWLEC 39

Although the defendant's guilty plea, willingness to create and maintain wildlife corridor/refuges, and other mitigating circumstances justified a substantially lesser and lenient penalty compared with Bungle Gully, the scale of clearing, environmental consequences, public significance of SEPP 46, and need for deterrence meant that no penalty or a merely nominal penalty was not justified. A penalty of $10,000 was therefore imposed, with 18 months allowed for payment by consent.

Jurisdiction
Australia
Judgment Date
06 February 1998
Procedural Posture
Prosecution for an Offence Against the Environmental Planning and Assessment Act 1979 Concerning Clearing Native Vegetation Without Required Development Consent / Sentencing After Guilty Plea
Outcome
The defendant was ordered to pay a pecuniary penalty after pleading guilty.
Legal Topics
['unauthorised Clearing of Native Vegetation' 'state Environmental Planning Policy No. 46 Protection and Management of Native Vegetation' 'environmental Harm and Reparation' 'deterrence in Sentencing' 'mitigating Factors']
['environmental Law' 'planning and Development Law' 'criminal Sentencing'] ['unauthorised Clearing of Native Vegetation' 'state Environmental Planning Policy No. 46 Protection and Management of Native Vegetation' 'environmental Harm and Reparation' 'deterrence in Sentencing' 'mitigating Factors']

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Procedural Posture

Prosecution for an Offence Against the Environmental Planning and Assessment Act 1979 Concerning Clearing Native Vegetation Without Required Development Consent / Sentencing After Guilty Plea

Legal Issues

  1. 1 ['What penalty should be imposed for clearing native vegetation without obtaining development consent required by State Environmental Planning Policy No. 46.' "Whether the defendant's guilty plea, environmental reparation agreement, community standing, distress, and confusion surrounding the State Policy justified no penalty, a nominal penalty, or a reduced penalty." 'How the sentence should reflect the seriousness of the clearing, its environmental consequences, and the public interest in obedience to native vegetation controls.']

Ratio Decidendi

Although the defendant's guilty plea, willingness to create and maintain wildlife corridor/refuges, and other mitigating circumstances justified a substantially lesser and lenient penalty compared with Bungle Gully, the scale of clearing, environmental consequences, public significance of SEPP 46, and need for deterrence meant that no penalty or a merely nominal penalty was not justified. A penalty of $10,000 was therefore imposed, with 18 months allowed for payment by consent.

Court Disposition

The defendant was ordered to pay a pecuniary penalty after pleading guilty.

Orders

  • ['Penalty of $10,000 imposed.' 'By consent, 18 months allowed for payment.' 'Orders made in accordance with the draft Consent Orders marked Exhibit 3.']