Gittany Constructions Pty Limited v Sutherland Shire Council

(2006) 145 LGERA 189; [2006] NSWLEC 242

NSW Land and Environment Court

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Interrogate

Catchwords

1. Criminal Law
2. › Sentencing
3. › Environmental offences
4. › Breach of development consent conditions
5. › Removal of protected trees, indigenous bushland and rock outcrops
6. › Objective gravity of offences
7. › Subjective circumstances
8. › General deterrence
9. › Totality principle
10. › Whether sentences too severe
11. › Environmental Planning and Assessment Act 1979 (NSW), ss 76A(1)(b), 125(1), 126(1)
12. › Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A, 22, 23
1. Criminal Law
2. › Appeal
3. › Appeal against severity of sentence
4. › Rehearing on the record
5. › Whether appellate court may increase sentence on appellant's own appeal
6. › Procedural fairness
7. › Requirement to warn appellant of possibility of increased sentence
8. › Criminal Appeal Act 1912 (NSW), s 5AA
9. › Crimes (Local Courts Appeal and Review) Act 2001 (NSW), ss 37(2), 39(2)
1. Environmental Law
2. › Development consent
3. › Breach of conditions of consent
4. › Tree preservation
5. › Indigenous bushland protection
6. › Sentencing principles for environmental offences
7. › General deterrence as central purpose
8. › Integrity of planning and development control system
9. › Environmental Planning and Assessment Act 1979 (NSW), ss 76A(1)(b), 96, 125(1)

Quick Take

For environmental offences involving breach of development consent conditions, general deterrence is of central importance and sentences must make it worthwhile for developers to take precautions to comply. The Court indicated that sentences for tree removal offences should be in the range of $7,500-$10,000 per tree and substantially higher ($45,000) for destruction of protected indigenous bushland areas. A combined discount of 35% was appropriate for early guilty plea, contrition and cooperation. Interest on borrowings incurred due to delay caused by the offence does not constitute extra-curial punishment.