Secretary, Department of Planning and Environment v Boggabri Coal Pty Limited [2014] NSWLEC 154

Land and Environment Court New South Wales

Medium Neutral Citation: Secretary, Department of Planning and Environment v Boggabri Coal Pty Limited [2014] NSWLEC 154 Hearing dates: 25 August 2014 Decision date: 25 August 2014 Jurisdiction: Class 5 Before: Preston CJ Decision: Orders as set out at [64] Catchwords: ENVIRONMENTAL OFFENCES - carrying out of development otherwise than in accordance with development consent - stockpiling of interburden material on land outside approved project boundary - sentence - objective seriousness - offender's conduct offended against statutory scheme and objects of statute - no evidence as to environmental harm - no evidence as to why or how offence came to be committed - unable to find that offence committed negligently or with any other heightened state of mind - unable to make finding as to reasons for committing offence - offence of low objective seriousness - subjective circumstances of offender - early plea of guilty - no prior record - contrition and remorse - good character - cooperation with prosecutor - appropriate sentence - need for general deterrence - fine of $82,500 imposed - defendant to pay prosecutor's costs in agreed sum of $38,000 - prosecutor sought moiety of one half of the fine payable by the defendant - defendant did not oppose - payment would compensate prosecutor for costs and expenses of investigation - moiety in fine directed Legislation Cited: Crimes (Sentencing Procedure) Act 1999 ss 3A, 21A(2) and (3) Criminal Procedure Act 1986 s 257B Environmental Planning and Assessment Act 1979 ss 76A, 101, 125, Pt 3A Fines Act 1996 ss 4(1), 122 Protection of the Environment Operations Act 1997 s 248 Cases Cited: Director-General, Department of Environment and Climate Change v Rae [2009] NSWLEC 137; (2009) 168 LGERA 121 Director-General, Department of Planning and Infrastructure v Integra Coal Operations Pty Ltd [2012] NSWLEC 255; (2012) 192 LGERA 281 Environment Protection Authority v Ampol Ltd (1993) 81 LGERA 433 Environment Protection Authority v Waste Recycling and Processing Corp [2006] NSWLEC 419; (2009) 148 LGERA 299 Gittany Constructions Pty Ltd v Sutherland Shire Council [2006] NSWLEC 242; (2006) 145 LGERA 189 Minister for Planning v Coalpac Pty Limited [2008] NSWLEC 271 Minister for Planning v Hunter Quarries Pty Ltd [2010] NSWLEC 246 Minister for Planning v Moolarben Coal Mines Pty Ltd [2012] NSWLEC 147; (2010) 175 LGERA 93 R v Thomson; R v Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383 Category: Principal judgment Parties: Secretary, Department of Planning and Environment (Prosecutor) Boggabri Coal Pty Limited (Defendant) Representation: Ms S G Callan (Barrister) (Prosecutor) Mr T G Howard SC (Defendant) Legal Services Branch, Department of Planning and Environment (Prosecutor) Clayton Utz (Defendant) File Number(s): 50263 of 2014 Publication restriction: Nil