DIRECTOR GENERAL DEPARTMENT OF LAND AND WATER CONSERVATION v. GEOFFREY ERIC LOCKE & ROD HARRISON [1998] NSWLEC 147 (26 May 1998) [1998] NSWLEC 65

DIRECTOR GENERAL DEPARTMENT OF LAND AND WATER CONSERVATION v. GEOFFREY ERIC LOCKE & ROD HARRISON [1998] NSWLEC 147 (26 May 1998) [1998] NSWLEC 65

Although the offence was proved, the clearing arose from the defendant's honest but erroneous misunderstanding of the legal position caused by the description of exemptions in departmental material; the offence was technical and in the lowest category, the clearing addressed a serious mint weed infestation and likely improved the vegetation environment, consent would most probably have been granted if sought, the defendant had no prior convictions and was of outstanding character, and there was only a remote prospect of reoffending. Those circumstances justified applying s 556A, dismissing the summons without conviction and ordering costs.

Jurisdiction
Australia
Judgment Date
26 May 1998
Procedural Posture
Prosecution for Clearing Native Vegetation Without Development Consent Contrary to S 76(2) of the Environmental Planning and Assessment Act / Guilty Plea; Penalty and Consideration of Dismissal Without Conviction Under S 556 a of the Crimes Act
Outcome
Offence proved; summons dismissed without proceeding to conviction under s 556A; defendant ordered to pay prosecutor's costs.
Legal Topics
['clearing Native Vegetation Without Development Consent' 'state Environmental Planning Policy No. 46' 'strict Liability' 'mistake of Law' 'mitigation' 'dismissal Without Conviction' 'costs']
['environmental Law' 'planning Law' 'criminal Sentencing'] ['clearing Native Vegetation Without Development Consent' 'state Environmental Planning Policy No. 46' 'strict Liability' 'mistake of Law' 'mitigation' 'dismissal Without Conviction' 'costs']

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Procedural Posture

Prosecution for Clearing Native Vegetation Without Development Consent Contrary to S 76(2) of the Environmental Planning and Assessment Act / Guilty Plea; Penalty and Consideration of Dismissal Without Conviction Under S 556 a of the Crimes Act

Legal Issues

  1. 1 ['Whether the defendant cleared native vegetation without development consent as required by State Environmental Planning Policy No. 46 contrary to s 76(2) of the Environmental Planning and Assessment Act.' "Whether the defendant's honest but erroneous belief that the clearing was exempt mitigated the offence or justified the exercise of the discretion under s 556A of the Crimes Act." "What penalty or order should be made in light of the environmental impact, the defendant's character, and the circumstances of the clearing."]

Ratio Decidendi

Although the offence was proved, the clearing arose from the defendant's honest but erroneous misunderstanding of the legal position caused by the description of exemptions in departmental material; the offence was technical and in the lowest category, the clearing addressed a serious mint weed infestation and likely improved the vegetation environment, consent would most probably have been granted if sought, the defendant had no prior convictions and was of outstanding character, and there was only a remote prospect of reoffending. Those circumstances justified applying s 556A, dismissing the summons without conviction and ordering costs.

Court Disposition

Offence proved; summons dismissed without proceeding to conviction under s 556A; defendant ordered to pay prosecutor's costs.

Orders

  • ['The offence is found proved.' 'Without proceeding to conviction the summons is dismissed.' "The defendant is to pay the prosecutor's costs in the sum of $12,000." 'The defendant is allowed 12 months to pay the costs.' 'The exhibits may be returned.']