Chief Executive, Office of Environment and Heritage v Kyluk Pty Limited (No 4) [2014] NSWLEC 74

Land and Environment Court New South Wales

Medium Neutral Citation: Chief Executive, Office of Environment and Heritage v Kyluk Pty Limited (No 4) [2014] NSWLEC 74 Hearing dates: 3 June 2014 Decision date: 18 June 2014 Jurisdiction: Class 5 Before: Pain J Decision: 1. The Defendant is convicted of the offence pursuant to s 118A(2) of the National Parks and Wildlife Act 1974 as charged. 2. Pursuant to s 205(1)(d) of the National Parks and Wildlife Act 1974 the Defendant is to pay $80,000 to the Campbelltown City Council for the purposes of the project "Restoration Works at Noorumba Reserve, Gilead Project" as detailed in Annexure A with the timetable for payment to be made within 14 days by agreement or order of the Court. 3. Pursuant to s 200 of the National Parks and Wildlife Act 1974 the Defendant must carry out restoration works at the property, 561 Appin Road, Gilead, in accordance with Annexure B subject to the amendment of the plan identifying the area to be restored in accordance with exhibit G as referred to at par 101 of this judgment and amendment of the period of remediation to 15 years. 4. The Defendant is to pay the Prosecutor's costs of this sentence hearing excluding the Prosecutor's costs in relation to Chief Executive, Office of Environment and Heritage v Kyluk Pty Limited (No 3) [2012] NSWLEC 56 as agreed or assessed. 5. The exhibits may be returned. Catchwords: SENTENCE - plea of guilty to picking an endangered ecological community - rehearing on remittal from Court of Criminal Appeal - agreed area of endangered ecological community cleared - extent of environmental harm - whether remediation order warranted given natural regeneration of cleared area - publication order not warranted Legislation Cited: Crimes (Sentencing Procedure) Act 1999 s 3A, s 21A Criminal Procedure Act 1986 s 215 Corporations Act 2001 (Cth) s 998 Environment Protection and Biodiversity Conservation Act 1999 (Cth) Fisheries Management Act 1994 National Parks and Wildlife Act 1974 s 2A, s 5, s 118A, s 156A, s 194, s 199, s 200, s 205, Pt 8A, Pt 15 National Parks and Wildlife Amendment Act 2010 Native Vegetation Act 2003 s 12 Native Vegetation Conservation Act 1997 (repealed) Protection of the Environment Operations Act 1997 s 241, Pt 8 Threatened Species Conservation Act 1995 s 3, s 24, Pt 2 Div 2, Pt 2 Div 3, Pt 3, Pt 4, Pt 5, Sch 1 Pt 3, Sch 3 Cases Cited: Axer Pty Ltd v Environment Protection Authority (1993) 113 LGERA 357 Bell v R (1981) 5 A Crim R 347 Bentley v BGF Properties Pty Ltd [2006] NSWLEC 34; (2006) 145 LGERA 234 Cabonne Shire Council v Environment Protection Authority [2001] NSWCCA 280; (2001) 115 LGERA 304 Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 Chief Executive, Office of Environment and Heritage v Coffs Harbour Hardwood Sales Pty Ltd [2012] NSWLEC 52 Chief Executive, Office of Environment and Heritage v Kyluk Pty Limited (No 3) [2012] NSWLEC 56 Department of Environment and Climate Change v Sommerville; Department of Environment and Climate Change v Ianna [2009] NSWLEC 194 Director-General, Department of Environment and Climate Change v Calman Australia Pty Ltd [2009] NSWLEC 182 Director-General, Department of Environment and Climate Change v Hudson [2009] NSWLEC 4; (2009) 165 LGERA 256 Director-General of the Department of Environment and Climate Change v Rae [2009] NSWLEC 137; (2009) 168 LGERA 121 Director-General, NSW Department of Industry & Investment v Mato Investments Pty Limited (No 4) [2011] NSWLEC 227 Duncan v R (1983) 47 ALR 746 Environment Protection Authority v Waste Recycling and Processing Corporation [2006] NSWLEC 419; (2006) 148 LGERA 229 Garrett v Freeman (No 5) [2009] NSWLEC 1; (2009) 164 LGERA 287 Garrett v Williams [2006] NSWLEC 785; (2006) 160 LGERA 115 Garrett v Williams [2007] NSWLEC 56 Giourtalis v R [2013] NSWCCA 216 Gittany v Sutherland Shire Council [2006] NSWLEC 242; (2006) 145 LGERA 189 Gordon Plath of the Department of Environment, Climate Change and Water v Lithgow City Council [2011] NSWLEC 8 Kyluk Pty Ltd v Chief Executive, Office of Environment and Heritage [2013] NSWCCA 114; (2013) 298 ALR 532 Hoare v R [1989] HCA 33; (1989) 167 CLR 348 Markarian v R [2005] HCA 25; (2005) 228 CLR 357 Muldrock v R [2011] HCA 39; (2011) 244 CLR 120 Newcastle City Council v Pace Farm Egg Products Pty Ltd [2002] NSWLEC 66 Plath v Hunter Valley Property Management Pty Limited [2010] NSWLEC 264 Plath v Rawson [2009] NSWLEC 178; (2009) 170 LGERA 253 R v Olbrich [1999] HCA 54; (1999) 199 CLR 270 R v Scook [2008] WASCA 114; (2008) 185 A Crim R 164 R v Sharma [2002] NSWCCA 142; (2002) 54 NSWLR 300 R v Todd [1982] 2 NSWLR 517 R v Thomson; R v Houlton 92000] NSWCCA 309; (2000) 49 NSWLR 383 R v Yorkshire Water Services Ltd [2002] 2 Cr App R (S) 13 Slack-Smith v Director-General of the Department of Land and Water Conservation [2003] NSWLEC 189; (2003) 132 LGERA 1 Veen v R [1979] HCA 7; (1979) 143 CLR 458 Veen v R (No 2) [1988] HCA 14; (1988) 164 CLR 465 Category: Sentence Parties: Chief Executive, Office of Environment and Heritage (Prosecutor) Kyluk Pty Limited (Defendant) Representation: Mr J Glissan QC (Prosecutor) Mr S Littlemore QC with Ms P Lane (Defendant) Office of Environment and Heritage (Prosecutor) McGirr Lawyers (Defendant) File Number(s): 50604 of 2011