Sutherland Shire Council v Nustas [2004] NSWLEC 608

Sutherland Shire Council v Nustas [2004] NSWLEC 608

Because the Defendant, while carrying out development under a development consent, failed to acquaint himself with and comply with relevant consent conditions, causing damage to trees that would not have occurred had the required tree protection been provided, the offence was reasonably serious and required a monetary penalty as well as reparation orders. The penalty was reduced for mitigating matters including remorse, the first offence, cooperation and a guilty plea, but the plea attracted only a 15 per cent utilitarian discount because it was entered relatively late and the Prosecutor's case was strong.

Jurisdiction
Australia
Judgment Date
03 November 2004
Procedural Posture
Prosecution for Offence Under S 125(1) of the Environmental Planning and Assessment Act 1979 / Sentencing Following Plea of Guilty
Outcome
Defendant convicted, fined $11,000, ordered to plant and maintain replacement trees, lodge a $15,000 bond, and pay the Prosecutor's costs.
Legal Topics
['breach of Development Consent Conditions' 'tree Protection and Damage to Trees' 'plea of Guilty' 'sentencing Factors' 'replanting and Maintenance Orders' 'prosecution Costs']
['environmental Law' 'planning Law' 'criminal Sentencing'] ['breach of Development Consent Conditions' 'tree Protection and Damage to Trees' 'plea of Guilty' 'sentencing Factors' 'replanting and Maintenance Orders' 'prosecution Costs']

Case Brief

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Procedural Posture

Prosecution for Offence Under S 125(1) of the Environmental Planning and Assessment Act 1979 / Sentencing Following Plea of Guilty

Legal Issues

  1. 1 ['What penalty should be imposed after the Defendant pleaded guilty to carrying out development not in accordance with conditions of a development consent.' "Whether the damage to trees and the Defendant's failure to acquaint himself with the consent conditions made the offence reasonably serious." 'Whether mitigating factors including the guilty plea, remorse, cooperation, absence of prior convictions and agreement to reparation orders should reduce the penalty.' 'Whether orders should be made under s 126(3) of the Environmental Planning and Assessment Act 1979 requiring replacement tree planting, maintenance and security.' "Whether the Defendant should pay the Prosecutor's costs."]

Ratio Decidendi

Because the Defendant, while carrying out development under a development consent, failed to acquaint himself with and comply with relevant consent conditions, causing damage to trees that would not have occurred had the required tree protection been provided, the offence was reasonably serious and required a monetary penalty as well as reparation orders. The penalty was reduced for mitigating matters including remorse, the first offence, cooperation and a guilty plea, but the plea attracted only a 15 per cent utilitarian discount because it was entered relatively late and the Prosecutor's case was strong.

Court Disposition

Defendant convicted, fined $11,000, ordered to plant and maintain replacement trees, lodge a $15,000 bond, and pay the Prosecutor's costs.

Orders

  • ['The Defendant is convicted of the offence with which he is charged.' 'The Defendant is fined the sum of $11,000 to be paid to the Registrar of the Court within twenty-eight days.' 'Within three months of the date of these orders plant three (3) trees to replace the trees removed as a consequence of the works the...