Gordon Plath of the Department of Environment, Climate Change and Water v Lithgow City Council [2011] NSWLEC 8

Land and Environment Court New South Wales

Medium Neutral Citation: Gordon Plath of the Department of Environment, Climate Change and Water v Lithgow City Council [2011] NSWLEC 8 Hearing dates: 26 July 2010 Decision date: 11 February 2011 Before: Sheahan J Decision: 1. In both matters, the defendant is convicted of the offence against s 118A(2) of the National Parks and Wildlife Act 1974, as charged in the summonses filed 17 December 2009; 2. In respect of the charge in matter No. 50081 of 2009, the defendant is fined the sum of $90,000; 3. In respect of the charge in matter No. 50082 of 2009, the defendant is fined the sum of $15,000; 4. The defendant pursuant to s 205(1)(d) and Schedule 3 [68] of the National Parks and Wildlife Act 1974, and in lieu of orders 2 and 3, is to pay within 28 days of this order to " Industry & Investment NSW ", the amount of $105,000 to be used by the Derelict Mines Program to assist in site rehabilitation at the Glen Davis Oil Shale Quarry Site, located in the Capertee Valley NSW. 5. All future public references by the defendant to its contribution to the rehabilitation of the Glen Davis Oil Shale Quarry Site in the Capertee Valley shall be accompanied by the following passage: " Lithgow City Council's contribution to the funding of rehabilitation of the Glen Davis Oil Shale Quarry Site in the Capertee Valley is part of a penalty imposed on it by the Land and Environment Court of NSW after Council was convicted of two offences of picking threatened species, an offence against s 118A(2) of the National Parks and Wildlife Act 1974 ." 6. The defendant, pursuant to s 205(1)(a) and Schedule 3 [68] of the National Parks and Wildlife Act 1974, is to place a notice in the first 5 pages of the Lithgow Mercury at a minimum size of 10cm by 25cm in the form of Annexure 'A', within 14 days of this order. 7. The defendant is to pay the prosecutor's costs, as agreed, in the sum of $25,000 within 28 days of this order. 8. Exhibit P1 is to be retained in the court's file. Catchwords: ENVIRONMENTAL OFFENCES: early pleas of guilty - discount - public authority with environmental responsibilities - environmental record - threatened species damaged by Council's roadworks - measuring environmental harm caused - remedial actions now taken - sentencing principles and considerations - prosecutor's costs Legislation Cited: Crimes (Sentencing Procedure) Act 1999 Environmental Planning and Assessment Act 1979 National Parks and Wildlife Act 1974 Protection of the Environment Operations Act 1997 Threatened Species Conservation Act 1995 Cases Cited: Axer Pty Ltd v Environment Protection Authority (1993) 113 LGERA 357 Bentley v BGP Properties Pty Ltd [2006] NSWLEC 34 Bentley v Gordon [2005] NSWLEC 695 Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 Environment Protection Authority v Barnes [2006] NSWCCA 246 Environment Protection Authority v Forestry Commission of New South Wales [2004] NSWLEC 751 Environment Protection Authority v Lithgow City Council [2007] NSWLEC 695 Environment Protection Authority v Tenterfield Shire Council [2000] NSWLEC 229 Garrett v Langmead [2006] NSWLEC 627 Markarian v The Queen [2005] HCA 25; 228 CLR 357 Minister for Planning v Hunter Quarries Pty Ltd [2010] NSWLEC 246 Pittwater Council v Scahill (2009) 165 LGERA 289 Plath v Hunter Valley Property Management Pty Limited [2010] NSWLEC 264 R v Holder [1983] 3 NSWLR 245 R v O'Neill [1979] 2 NSWLR 582 R v Thomson [2000] NSWCCA 309; 49 NSWLR 383 R v Visconti [1982] 2 NSWLR 104 Veen v The Queen (1979) 143 CLR 458 Category: Sentence Parties: Gordon Plath of the Department of Environment, Climate Change and Water (Prosecutor) Representation: Counsel: Ms R Hicks, Solicitor (Prosecutor) Solicitors: Department of Environment, Climate Change and Water (Prosecutor) Pikes Lawyers (Defendant) File Number(s): 50081 and 50082 of 2009