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Kari & Ghossayn Pty Limited v Sutherland Shire Council

País/Territorio
Australia
Tipo de la corte
Otros
Fecha
Ago 25, 2006
Fuente
UNEP, InforMEA
Nombre del tribunal
Land and Environment Court of New South Wales
Juez
Preston
Número de referencia
NSWLEC 532
Idioma
Inglés
Materia
Especies silvestres y ecosistemas
Palabra clave
Protección vegetal Infracciones/sanciones Flora silvestre
Resumen
The appellant, Kari & Ghossayn Pty Limited, appealed against both the convictions made and the severity of the sentences imposed in proceedings in the Sutherland Local Court for offences against the Environmental Planning and Assessment Act 1979 (NSW) (“the EPA Act”). The three offences with which the appellant was charged were against s. 125(1) of the EPA Act, in that the appellant carried out development that was not in accordance with a development consent granted by this Court, in contravention of s 76A(1)(b) of the EPA Act. In April 2004, Gittany Constructions Pty Limited purchased a site with the development consent already having been granted by the Council. The site at the time was significantly vegetated. The indigenous bushland and the sandstone rock outcrops located in the western corner were intact. After purchasing the site, Gittany hired the appellant for the work of tree clearing and bulk excavation on the site. While clearing the site, the appellant is alleged to have committed the offences. The three offences involved the removal of trees and indigenous bushland. One of the offences involved the breach of a condition of the development consent by failing to retain, protect and enhance the patches of indigenous bushland and failing to retain and isolate all existing trees, shrubs, groundcovers and sandstone rock outcrops from all forms of building activities. The defendant pleaded not guilty to each of the charges. The Local Court found each of the offences proven. It convicted the appellant as charged for each of the offences and sentenced it to pay a fine of $37,000 in relation to the offences. The appellant appealed to this Court under s 31 of the Crimes (Local Courts Appeal and Review) Act 2001 (NSW) (“the Review Act”). He stated that the guilt was not, to the necessary standard of beyond reasonable doubt, proved by the prosecutor. Inter alia, there was evidence that the appellant took protective measures to isolate vegetated areas. The court analyzed the evidence on the appeals, and the incident in question and found that there was no reasonable doubt that the appellant committed each of the offences. The appellant knew that certain trees were required by the development consent to be retained on the site. The appellant also submitted that the sentence imposed by the Local Court was too severe. The court reviewed the objective harmfulness of the appellant’s actions, the appellant’s state of mind, the appellant’s reasons for committing the offence and the need for deterrence and held that the fine of $37,000 imposed by the Local Court could not be considered too severe. Each of the appeals was dismissed.
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