Hawkesbury City Council v Memorey [2005] NSWLEC 735

Land and Environment Court of New South Wales

CITATION : Hawkesbury City Council v Memorey [2005] NSWLEC 735

PROSECUTOR Hawkesbury City Council PARTIES : DEFENDANT Raymond John Memorey

FILE NUMBER(S) : 50018 of 2005

CORAM: Cowdroy J

KEY ISSUES: Environmental Offences :- extraction of sandstone - mitigating circumstances - application of s 10 of the Crimes (Sentencing Procedure) Act 1999

Crimes (Sentencing Procedure) Act 1999 s 10 LEGISLATION CITED: Environmental Planning and Assessment Act 1979 s 125(1) Hawkesbury Local Environmental Plan 1989 cl 9

CASES CITED: R v O'Neill [1979] 2 NSWLR 582

DATES OF HEARING: 14/10/2005

DATE OF JUDGMENT: 10/14/2005

EX TEMPORE JUDGMENT DATE : 10/14/2005

PROSECUTOR S Berveling SOLICITORS A R Walmsley & Co LEGAL REPRESENTATIVES: RESPONDENT M Rush SOLICITORS Law Partners Solicitors & Barristers

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

Cowdroy J

14 October 2005

50018 of 2005

HAWKESBURY CITY COUNCIL Prosecutor

RAYMOND JOHN MEMOREY Defendant

JUDGMENT 1 Cowdroy J: By summons issued on 31 May 2005 Hawkesbury City Council ("the Council"), as prosecutor, charges the defendant that between 1 February 2005 and 11 April 2005 he committed an offence against s 125(1) of the Environmental Planning and Assessment Act 1979 ("EP&A Act") in that on land known as 560 Blaxlands Ridge Road East Kurrajong, being lot 2 in Deposited Plan 547929 ("the land"), he carried out an extractive industry by extracting sandstone, which was prohibited by cl 9 of the Hawkesbury Local Environmental Plan 1989 ("LEP"). The defendant has pleaded guilty to the charge and accordingly the Court is required to determine the appropriate penalty. 2 The land is contained in a rural and heavily vegetated area being covered with natural vegetation. The land is within the Hawkesbury Local Government Area and the provisions of the LEP apply. The defendant rents the land, which comprises a parcel of approximately 65 acres. A cottage is erected on the land. The defendant resides in the cottage with his wife and two sons each of whom are aged in their late teenage years or early twenties. 3 The amount of sandstone which was removed is estimated to be a total of 8 tonnes. It was cut and removed from its location in four separate sites on the land. One site was approximately 8 m in length and the other sites were each of approximately 3 m. The four sites are within 15 to 20 m of each other. Of the 8 tonnes the defendant has sold approximately half that amount to friends or acquaintances. The other half remains on the land either reburied on the site or stored near his home. 4 Photographs show that the land has extensive protrusions of natural rock and undergrowth located between a heavy forest of natural trees and vegetation. The recent photographs of the site tendered by the defendant show that the defendant has endeavoured to remediate the site by restoring the natural vegetation from which the rock was removed. This has had the effect of substantially camouflaging the places where the sandstone rock was removed. 5 Anthony Head, a development control officer of the Council, attended the land on 11 April 2005 with Mr Charles Whitelock, a ranger, also employed by the Council. They inspected bushland in the south western corner of the land where they observed the defendant in the process of slicing rock and breaking portions of it away with a hammer and bolster. Mr Head saw the defendant cutting large rock into slabs approximately 50 mm thick, pick up each portion of the cut rock, and place the slabs against the rock wall of the area in which he was then working. These activities were recorded by video. Mr Head approached the defendant and had a conversation with him. The defendant acknowledged that he had been taking "a bit of rock" from the site. The defendant said that he was the tenant and when asked whether the owner knew that he was removing rock the defendant said, "I asked him a while ago and he said I could take some, but that was a fair while ago". The defendant then accompanied the Council officers further onto the site and showed them where he had removed rock. The defendant provided his details to assist the Council officers in their investigation. 6 Because the defendant has pleaded guilty to the charge the necessary elements of the charge are deemed to have been admitted: see R v O'Neill [1979] 2 NSWLR 582. Pursuant to the LEP the land is contained within the 1(C1) Rural "C1" zone. Within that zone extractive industries are prohibited. 7 The defendant has given evidence and has indicated his remorse and contrition for what has occurred. He has informed the Court that he is a handyman, and that undertaking such work is his sole source of income. His wife is employed in South Windsor. He has told the Court that in April 2004 his two sons were engaged in a motor accident in which each were seriously injured. As a consequence he has incurred expenses of approximately $3,000 for hospital and medical bills. As a result of that event and in consequence of the need to support his two sons he required some additional income. 8 The defendant assessed his income at approximately $2,000 to $5,000 per annum. He is paying rent of $170 per week but his income is supported by his wife's income. The defendant's two sons are now in employment, one as an excavator operator and the other in a similar occupation. 9 The defendant informed the Court that he was aware that bush rock could not be removed lawfully from the land but was not aware that sandstone, won from rock ledges could not be removed. The defendant provided a letter to the Council, which has been tendered in evidence, in which he acknowledged that approval for removal of bush rock was required. The letter states, "Yes I am aware that approval for removal of bush rock is required however, I did not remove bush rock. I only removed sandstone pieces cut from solid sandstone". It appears that the defendant may only have become aware that the removal of bush rock was prohibited after the visit from Council officers. 10 The defendant says that he only engaged in the removal of sandstone to assist him during his difficult financial period resulting from the need to care for his two sons. 11 The defendant was self-represented when this matter first came before the Court 20 July 2005. At that stage he was advised to seek legal representation. The defendant was represented on 17 August 2005 when the matter returned to the Court and on that occasion Mr Rush, who then appeared and who now appears, indicated to the Court that a plea of guilty was likely. A plea of guilty was subsequently indicated and was entered this morning. Environmental Harm 12 The Court is required to assess the extent of environmental harm resulting from the offence. The Court is satisfied that negligible environmental harm has resulted. The quantity of rock removed was small, was confined to private property and as a result of the remediation undertaken there is no real visible impact. 13 As Mr Rush submits that the moral culpability of the defendant is low, an application is made under s 10 of the Crimes (Sentencing Procedure) Act 1999 ("the Sentencing Procedure Act"). 14 The Court has the benefit of having heard the defendant give evidence. He is forty-three years of age. It is apparent that he has engaged in the business of being a handyman for a prolonged period. A reference has been provided to the Court by one of his clients who has known him for the past nine years and has engaged the defendant to undertake a variety of tasks. Such reference speaks of the defendant's honesty, reliability and willingness to work, and of his high moral standard. The reference also refers to the fact that the defendant has tried hard to give his family a chance "to get on ahead in life". 15 Dr Prabhu has provided a reference which states that he has known the defendant and his family both personally and professionally for more than twenty-eight years. He says that the defendant comes from a good family, is well-known throughout the Hawkesbury area, and is honest, hardworking family man. Those matters speak well for the defendant's character. 16 The Court is satisfied that the defendant did not know that the removal of cut sandstone required development approval. The Court is also satisfied that had the defendant been aware of the legal requirements, he would not have engaged in such removal. 17 The Court is impressed by the honesty of the defendant. When interviewed by the Council officers, he did not attempt to conceal his actions and offered full co-operation. 18 The defendant has had no previous offences. These matters speak well for his character and the Court takes those matters into account when considering the application under s 10 of the Sentencing Procedure Act. 19 The Court concludes that a penalty is not warranted. The Court is satisfied from the character evidence that the defendant is unlikely to offend again. The Court can confidently extend the benefit of s 10 of the Sentencing Procedure Act. Accordingly, the Court finds the offence proved but will order that the charge be dismissed. 20 The Council also makes an application for the payment of its costs. The defendant's ignorance of the requirements of the LEP could have been rectified by enquiry. The Council was justified in bringing the proceedings to protect its environmental duties and responsibilities and accordingly the Court will order that the defendant pay the Council's costs. 21 Dr Berveling who appears for the Council has indicated that the costs to the Council are approximately $7,500 but acknowledges that those costs are estimated on a solicitor/client basis. On a party/party basis the Court is satisfied that an award of costs would be substantially less. The matter has been before the Court on three occasions and the Council has provided affidavits. The Court considers that the defendant should pay the Council's costs in the amount of $2,500. In recognition of the defendant's financial position, the Court will allow a period of 12 months for the payment thereof. Orders 22 The Court orders as follows: (1) The offence is found proved but without proceeding to a conviction the charge is dismissed. (2) The defendant to pay the Council's costs in the sum of $2,500. (3) Such costs to be paid by quarterly instalments during the next twelve months. (4) The exhibits be returned.