Manly Council v Horizon Habitats Pty Limited [2015] NSWLEC 15

Manly Council v Horizon Habitats Pty Limited [2015] NSWLEC 15

The defendant was guilty of carrying out development contrary to the development consent by constructing stairs in an environmentally sensitive foreshore area containing Little Penguin critical habitat. Although there was no evidence of actual harm to Little Penguins and the actual habitat harm was relatively minor and transitory, the works created a serious risk of harm, the defendant and its employees knew of the consent conditions and access restrictions, and reliance on the owners' architect to obtain or regularise approval did not excuse the breach. The offence was of moderate objective seriousness. The offence was not trivial and there were no extenuating circumstances justifying a...

Jurisdiction
Australia
Judgment Date
12 February 2015
Procedural Posture
Class 5 Environmental Prosecution; Sentence / Sentencing After Plea of Guilty
Outcome
Defendant found guilty, convicted and fined $40,000; prosecutor's costs ordered; application for a discharge without conviction declined.
Legal Topics
['development Without Compliance With Development Consent' 'environmental Offences' 'critical Habitat' 'endangered Species' 'objective and Subjective Sentencing Factors' 'application for Discharge Without Conviction']
['environmental Law' 'planning Law' 'criminal Sentencing'] ['development Without Compliance With Development Consent' 'environmental Offences' 'critical Habitat' 'endangered Species' 'objective and Subjective Sentencing Factors' 'application for Discharge Without Conviction']

Case Brief

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Procedural Posture

Class 5 Environmental Prosecution; Sentence / Sentencing After Plea of Guilty

Legal Issues

  1. 1 ['Whether the defendant committed an offence against s 125(1) of the Environmental Planning and Assessment Act 1979 by directing workers to carry out development otherwise than in accordance with a development consent.' 'How the objective seriousness of the offence should be assessed, including actual harm, potential harm and risk to Little Penguins and their habitat.' "What weight should be given to the defendant's guilty plea, cooperation, good character, remorse and lack of prior convictions." 'Whether the Court should exercise discretion under s 10 of the Crimes (Sentencing Procedure) Act 1999 to record no conviction.' 'What fine and costs orders should be imposed.']

Ratio Decidendi

The defendant was guilty of carrying out development contrary to the development consent by constructing stairs in an environmentally sensitive foreshore area containing Little Penguin critical habitat. Although there was no evidence of actual harm to Little Penguins and the actual habitat harm was relatively minor and transitory, the works created a serious risk of harm, the defendant and its employees knew of the consent conditions and access restrictions, and reliance on the owners' architect to obtain or regularise approval did not excuse the breach. The offence was of moderate objective seriousness. The offence was not trivial and there were no extenuating circumstances justifying a...

Court Disposition

Defendant found guilty, convicted and fined $40,000; prosecutor's costs ordered; application for a discharge without conviction declined.

Orders

  • ['The defendant is found guilty, and is convicted, of the offence charged in the summons.' 'The defendant is ordered to pay a fine of $40,000.' "The defendant is ordered to pay the prosecutor's costs, as agreed, or as assessed according to law." 'All exhibits except Exhibit P1 are returned.']