Byron Shire Council -V- Wain & Anor. [1999] NSWLEC 13

Byron Shire Council -V- Wain & Anor. [1999] NSWLEC 13

The prosecutor did not establish a basis for the restoration order it sought under s.14. The offence was not a continuing offence, so the power to prevent continuance was unavailable, and although some environmental harm was caused, including loss of fish habitat, the evidence did not show actual or likely harm of a magnitude justifying total removal of the reclamation. A mitigatory order of the type proposed by the defendants was available because appropriate completion works could mitigate environmental problems likely to arise from the unfinished reclamation. For penalty, the offences were serious because they involved deliberate self-help reclamation of creek waters, but the fill was...

Jurisdiction
Australia
Judgment Date
05 February 1999
Procedural Posture
Criminal Prosecution for Pollution of Waters Offences / Sentencing After Guilty Pleas; Determination of Proposed Orders Under S.14 of the Environmental Offences and Penalties Act 1989
Outcome
Both defendants were convicted. Barry Wain was fined $15,000 and Wengarin Pty Ltd was fined $5,000. The prosecutor's proposed s.14 restoration order was refused in substance, and the Court deferred making a s.14 order in terms of the defendants' proposed mitigation works pending short minutes or further submissions.
Legal Topics
['pollution of Waters' 'unauthorised Deposition of Fill' 'reclamation of Creek Foreshore' 'environmental Harm and Restoration Orders' 'sentencing for Environmental Offences']
['environmental Law' 'criminal Law' 'planning and Land Use'] ['pollution of Waters' 'unauthorised Deposition of Fill' 'reclamation of Creek Foreshore' 'environmental Harm and Restoration Orders' 'sentencing for Environmental Offences']

Case Brief

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Procedural Posture

Criminal Prosecution for Pollution of Waters Offences / Sentencing After Guilty Pleas; Determination of Proposed Orders Under S.14 of the Environmental Offences and Penalties Act 1989

Legal Issues

  1. 1 ["Whether the defendants' unauthorised deposition of fill and gabion rocks in Belongil Creek warranted an order under s.14 of the Environmental Offences and Penalties Act 1989 requiring removal of the fill and restoration of the creek bank." 'Whether s.14 empowered an order to prevent the continuance of the offence in circumstances where the offence was not a continuing offence.' "Whether the proved actual or likely environmental harm justified the prosecutor's proposed restoration order." 'Whether an order should instead be made to permit retention of the fill with additional works to mitigate environmental harm.' 'What fines should be imposed on Barry Wain and Wengarin Pty Ltd having regard to culpability, environmental harm and the totality principle.']

Ratio Decidendi

The prosecutor did not establish a basis for the restoration order it sought under s.14. The offence was not a continuing offence, so the power to prevent continuance was unavailable, and although some environmental harm was caused, including loss of fish habitat, the evidence did not show actual or likely harm of a magnitude justifying total removal of the reclamation. A mitigatory order of the type proposed by the defendants was available because appropriate completion works could mitigate environmental problems likely to arise from the unfinished reclamation. For penalty, the offences were serious because they involved deliberate self-help reclamation of creek waters, but the fill was...

Court Disposition

Both defendants were convicted. Barry Wain was fined $15,000 and Wengarin Pty Ltd was fined $5,000. The prosecutor's proposed s.14 restoration order was refused in substance, and the Court deferred making a s.14 order in terms of the defendants' proposed mitigation works pending short minutes or further submissions.

Orders

  • ['In proceedings 50116 of 1998, Barry Wain is convicted of the offence as charged and fined $15,000, payable to Byron Shire Council pursuant to s.694 of the Local Government Act 1993 within three months.' "Barry Wain is to pay the prosecutor's costs in the amount determined in accordance with s.52(2) of the Land and...