Blue Mountains City Council v Tzannes [2009] NSWLEC 19

Blue Mountains City Council v Tzannes [2009] NSWLEC 19

Although the strict liability offence was technically proved because clearing was carried out without development consent, the offence was trivial and committed in extenuating circumstances: the Rural Fire Service had identified the area as a fire hazard, council officers told the defendant she did not need written consent and could use machinery, the area had largely been previously cleared, there was no evidence of harm to the Colo River sub-catchment, the defendant instructed the contractor to act within limited bounds and with minimal disturbance, and she had an excellent record, no criminal history, pleaded guilty, agreed to pay costs and remediate the area. The court therefore...

Jurisdiction
Australia
Judgment Date
06 March 2009
Procedural Posture
Prosecution for Offence Against S 125(1) of the Environmental Planning and Assessment Act 1979 / Sentencing After Plea of Guilty
Outcome
Offence proved but no conviction recorded; proceedings dismissed under s 10 of the Crimes (Sentencing Procedure) Act 1999.
Legal Topics
['clearing Native Vegetation Without Development Consent' 'strict Liability Offence' 'objective and Subjective Sentencing Considerations' 'dismissal of Charge Without Conviction Under S 10 of the Crimes (sentencing Procedure) Act 1999' 'remediation Order']
['environmental Law' 'planning and Development' 'criminal Law' 'sentencing'] ['clearing Native Vegetation Without Development Consent' 'strict Liability Offence' 'objective and Subjective Sentencing Considerations' 'dismissal of Charge Without Conviction Under S 10 of the Crimes (sentencing Procedure) Act 1999' 'remediation Order']

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Procedural Posture

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

Legal Issues

  1. 1 ['Whether the defendant caused trees and vegetation to be cleared without first obtaining development consent as required by the Environmental Planning and Assessment Act 1979 and Sydney Regional Environmental Plan No. 20 - Hawkesbury-Nepean River (No 2 - 1997).' 'Whether council officers told the defendant that she did not require development consent for the work.' 'What instructions the defendant gave to the contractor who carried out the clearing.' 'Whether the charge should be dismissed without proceeding to conviction under s 10 of the Crimes (Sentencing Procedure) Act 1999.']

Ratio Decidendi

Although the strict liability offence was technically proved because clearing was carried out without development consent, the offence was trivial and committed in extenuating circumstances: the Rural Fire Service had identified the area as a fire hazard, council officers told the defendant she did not need written consent and could use machinery, the area had largely been previously cleared, there was no evidence of harm to the Colo River sub-catchment, the defendant instructed the contractor to act within limited bounds and with minimal disturbance, and she had an excellent record, no criminal history, pleaded guilty, agreed to pay costs and remediate the area. The court therefore...

Court Disposition

Offence proved but no conviction recorded; proceedings dismissed under s 10 of the Crimes (Sentencing Procedure) Act 1999.

Orders

  • ['The offence is proved but no conviction is recorded and the proceedings are dismissed.' "The defendant pay the prosecutor's costs in the sum of $30,000." 'Order that, pursuant to s 126(3) of the Environmental Planning and Assessment Act 1979, the defendant comply with the remediation plan dated 26 February 2009...