Port Stephens Council v Robinsons Anna Bay Sand Pty Limited [2007] NSWLEC 240

Port Stephens Council v Robinsons Anna Bay Sand Pty Limited [2007] NSWLEC 240

The evidence established that the defendant carried out specified development, namely an extractive industry involving the winning of sand from lots 130 and 131, where the LEP required development consent and none had been obtained, thereby contravening s 76A(1) and committing an offence under s 125(1) of the EP&A Act. Given the seriousness of the offence, the quantity of sand extracted, environmental harm, the organised and prolonged nature of the conduct, the defendant's knowledge that consent was required, financial benefit and avoided costs, and the need for general deterrence, a penalty of $100,000 was appropriate despite the defendant being in voluntary winding up.

Jurisdiction
Australia
Judgment Date
11 April 2007
Procedural Posture
Prosecution for Offence Against S 125(1) of the Environmental Planning and Assessment Act 1979 / Ex Tempore Judgment After Ex Parte Hearing
Outcome
The defendant was convicted of the offence as charged and ordered to pay a penalty and costs.
Legal Topics
['carrying Out Specified Development Without Development Consent' 'extractive Industry' 'sand Extraction' 'voluntary Winding Up of Corporate Defendant' 'penalty and Costs']
['environmental Planning and Assessment' 'criminal Procedure' 'land and Environment'] ['carrying Out Specified Development Without Development Consent' 'extractive Industry' 'sand Extraction' 'voluntary Winding Up of Corporate Defendant' 'penalty and Costs']

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Procedural Posture

Prosecution for Offence Against S 125(1) of the Environmental Planning and Assessment Act 1979 / Ex Tempore Judgment After Ex Parte Hearing

Legal Issues

  1. 1 ['Whether the defendant carried out an extractive industry on lots 130 and 131 in deposited plan 7530204 without development consent contrary to s 76A(1) and s 125(1) of the Environmental Planning and Assessment Act 1979.' 'What penalty should be imposed for the offence, including in light of environmental harm, profit or savings, general deterrence, and the defendant being in voluntary winding up.']

Ratio Decidendi

The evidence established that the defendant carried out specified development, namely an extractive industry involving the winning of sand from lots 130 and 131, where the LEP required development consent and none had been obtained, thereby contravening s 76A(1) and committing an offence under s 125(1) of the EP&A Act. Given the seriousness of the offence, the quantity of sand extracted, environmental harm, the organised and prolonged nature of the conduct, the defendant's knowledge that consent was required, financial benefit and avoided costs, and the need for general deterrence, a penalty of $100,000 was appropriate despite the defendant being in voluntary winding up.

Court Disposition

The defendant was convicted of the offence as charged and ordered to pay a penalty and costs.

Orders

  • ['The defendant is convicted of the offence as charged.' 'The defendant must pay a penalty in the sum of $100,000.' "The defendant must pay the prosecutor's costs in accordance with Div 4 of Pt 5 of the Criminal Procedure Act 1986." 'The exhibits may be returned.']