Warringah Council v ProjectCorp Australia Pty Ltd (ACN 100 424 440) [2015] NSWLEC 141

Warringah Council v ProjectCorp Australia Pty Ltd (ACN 100 424 440) [2015] NSWLEC 141

The Defendant's failure to implement and maintain required erosion and sediment controls by 25 January 2012 breached development consent conditions, was reasonably foreseeable and within its control, and was objectively in the low to medium range of seriousness. The 18 April 2012 pollution offence was of low objective seriousness because substantial control efforts had been made and extraordinary rainfall contributed to the discharge, but further practical measures had been available and the offence was not trivial or attended by extenuating circumstances sufficient for s 10. The Defendant's early guilty pleas, cooperation, remorse, absence of prior convictions, low risk of reoffending...

Jurisdiction
Australia
Judgment Date
03 September 2015
Procedural Posture
Class 5 Criminal Environmental Prosecution for Offences Against S 125(1) of the Environmental Planning and Assessment Act 1979 (nsw) and S 120(1) of the Protection of the Environment Operations Act 1997 (nsw) / Sentencing After Pleas of Guilty
Outcome
The Defendant was convicted of both offences and fined; the application for a s 10 dismissal and the Prosecutor's application for a publication order were not granted.
Legal Topics
['erosion and Sediment Control' 'development Consent Conditions' 'pollution of Waters' 'strict Liability Environmental Offences' 'sentencing Principles' 'costs' 'totality Principle']
['environmental Law' 'planning Law' 'criminal Sentencing'] ['erosion and Sediment Control' 'development Consent Conditions' 'pollution of Waters' 'strict Liability Environmental Offences' 'sentencing Principles' 'costs' 'totality Principle']

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Procedural Posture

Class 5 Criminal Environmental Prosecution for Offences Against S 125(1) of the Environmental Planning and Assessment Act 1979 (nsw) and S 120(1) of the Protection of the Environment Operations Act 1997 (nsw) / Sentencing After Pleas of Guilty

Legal Issues

  1. 1 ['What sentence should be imposed for carrying out development otherwise than in accordance with conditions of development consent contrary to s 125(1) of the Environmental Planning and Assessment Act 1979 (NSW).' 'What sentence should be imposed for polluting waters contrary to s 120(1) of the Protection of the Environment Operations Act 1997 (NSW).' "Whether the Defendant's conduct was reckless or negligent for sentencing purposes." 'Whether the pollution offence warranted dismissal without conviction under s 10 of the Crimes (Sentencing Procedure) Act 1999 (NSW).' 'How the totality principle should affect aggregate penalties for related offences arising from the same construction project.' 'Whether a publication order should be made under s 250(1)(a) of the Protection of the Environment Operations Act 1997 (NSW).']

Ratio Decidendi

The Defendant's failure to implement and maintain required erosion and sediment controls by 25 January 2012 breached development consent conditions, was reasonably foreseeable and within its control, and was objectively in the low to medium range of seriousness. The 18 April 2012 pollution offence was of low objective seriousness because substantial control efforts had been made and extraordinary rainfall contributed to the discharge, but further practical measures had been available and the offence was not trivial or attended by extenuating circumstances sufficient for s 10. The Defendant's early guilty pleas, cooperation, remorse, absence of prior convictions, low risk of reoffending...

Court Disposition

The Defendant was convicted of both offences and fined; the application for a s 10 dismissal and the Prosecutor's application for a publication order were not granted.

Orders

  • ['Proceedings 51226 of 2012: The Defendant is convicted of the offence as charged.' 'Proceedings 51226 of 2012: The Defendant is fined the sum of $35,000.' 'Proceedings 51227 of 2012: The Defendant is convicted of the offence as charged.' 'Proceedings 51227 of 2012: The Defendant is fined the sum of $10,000.'...