Fry v Paterson [1990] NSWLEC 120 (10 October 1990 [1990] NSWLEC 16

Land and Environment Court of New South Wales

CITATION : Fry v Paterson [1990] NSWLEC 120 (10 October 1990 [1990] NSWLEC 16 PARTIES : Fry v Paterson [1990] NSWLEC 120 (10 October 1990) FILE NUMBER(S) : 50076,50077,50078 of 1990 CORAM: Stein J KEY ISSUES: :- LEGISLATION CITED: Environmental Planning and Assessment Act Local Government Act CASES CITED: DATES OF HEARING: DATE OF JUDGMENT: 10/10/1990

LEGAL REPRESENTATIVES:

JUDGMENT: HIS HONOUR: On 24 August 1990 I found the defendant, Ian James Paterson, guilty of three offences of breach of the Tree Preservation Order of the Council of the Municipality of Kiama. I adjourned the proceedings to hear evidence and submissions on penalty.

On 5 October 1990 I heard such submissions and imposed convictions on the defendant in respect of each summons. I also made orders by consent under s.126(3) of the Environmental Planning and Assessment Act requiring the defendant to revegetate the areas of his land at Foxground which had been cleared between 12 and 22 December 1989. Additionally, I ordered the defendant to pay the Prosecutor's costs in the sum of $14,628.32. I reserved the question of penalty.

The maximum penalty provided by s.126(1) of the Environmental Planning and Assessment Act for an offence against the Act is a fine of $20,000. Subsection (3) provides that a replanting of revegetation order may be directed "in addition to or in substitution of any pecuniary penalty imposed".

In the assessment of penalty it is, in my opinion, appropriate to treat the three offences as one. Each of the 3 summonses relate to different areas on the defendant's farm property at Foxground. They arise out of the same incident of tree clearing carried out over a period of around 10 days in December 1989 and could have been the subject of one summons. In my view it is therefore appropriate to regard $20,000 as the maximum total penalty which may be imposed in respect of the three offences.