Hornsby Shire Council v Henlong Property Group Pty Ltd (No 2) [2019] NSWLEC 17

Hornsby Shire Council v Henlong Property Group Pty Ltd (No 2) [2019] NSWLEC 17

The conduct of carrying out development prior to compliance with a deferred commencement condition involved objective seriousness above the very low range because it undermined the planning regime and resulted in some environmental harm, even though harm was not significant or lasting. The appropriate penalty is a fine reflective of the objective and subjective circumstances, with a reduction for utilitarian value of the early plea.

Parties
Prosecutor: Hornsby Shire Council; Defendant: Henlong Property Group Pty Ltd
Jurisdiction
Australia
Judgment Date
28 February 2019
Procedural Posture
Criminal (environmental Offence) / Sentencing
Outcome
Conviction and fine ($28,000); order to pay prosecutor's costs
Legal Topics
Unlawful Development, Breach of Deferred Commencement Consent Condition, Felling of Native Trees, Objective Seriousness of Offence, Sentencing Principles
Environmental Law Criminal Law Planning Law Unlawful Development Breach of Deferred Commencement Consent Condition Felling of Native Trees Objective Seriousness of Offence Sentencing Principles

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Parties

Hornsby Shire Council

Prosecutor

Henlong Property Group Pty Ltd

Defendant

Procedural Posture

Criminal (environmental Offence) / Sentencing

Legal Issues

  1. 1 What is the appropriate sentence for carrying out development (tree felling/vegetation clearing) prior to compliance with a deferred commencement condition of development consent under the EPA Act?
  2. 2 What is the objective and subjective seriousness of the offence?
  3. 3 Were there aggravating or mitigating factors, and what is the appropriate penalty in light of the purposes of sentencing and comparable cases?

Ratio Decidendi

The conduct of carrying out development prior to compliance with a deferred commencement condition involved objective seriousness above the very low range because it undermined the planning regime and resulted in some environmental harm, even though harm was not significant or lasting. The appropriate penalty is a fine reflective of the objective and subjective circumstances, with a reduction for utilitarian value of the early plea.

Court Disposition

Conviction and fine ($28,000); order to pay prosecutor's costs

Orders

  • Henlong Property Group Pty Ltd convicted of the offence as charged.
  • Henlong Property Group Pty Ltd fined $28,000.