A recent decision of the NSW Land and Environment Court serves as a reminder that the Court takes the deliberate flouting of consent conditions very seriously, even when no environmental harm has been caused.
The Land and Environment Court of NSW handed down its decision in the prosecution matter of Snowy Monaro Regional Council v Tropic Asphalts  on Friday 1 April 2022. BAL Lawyers acted for the Council in the proceedings. The Council was successful in the proceedings, with his Honour Justice Moore convicting Tropic Asphalts of two offences under the Environmental Planning and Assessment Act 1979 (the EPA Act) for significant breaches of two conditions of a development consent and imposing a total fine of $600,000.00.
In 2015, the Council granted development consent to Tropic Asphalts for the installation and operation of a temporary asphalt batching plant at Rock Flat, NSW. The consent was subject to several conditions, including condition 4, which set a daily limit on the amount of asphalt which could be produced (150 tonnes per day), and condition 6, which set a daily limit on the number of truck movements permitted at the plant (12 truck movements per day). The Council, following the amendment of its summons in 2020, charged Tropic Asphalts with two offences: a breach of condition 4 on 31 January 2015 (Charge 1) and a breach of condition 6 on 18 March 2015 (Charge 2). Tropic Asphalts pleaded guilty to both charges in May 2021
His Honour convicted Tropic Asphalts of both offences, imposed a fine of $540,000 for Charge 1 and a further fine of $60,000 for Charge 2, and ordered Tropic Asphalts to pay the Council’s costs of the proceedings.
His Honour found that Tropic Asphalts had known from the outset that it would not be able to comply with the development consent conditions which limited the production capacity of the asphalt plant. This was because Tropic Asphalts had entered into a contract with the RMS to produce asphalt and, to fulfil the contract, his Honour found that Tropic Asphalts would need to produce more than 150 tonnes of asphalt per day. Notwithstanding its contractual obligations, Tropic Asphalts only sought development consent to produce up to 150 tonnes of asphalt per day to avoid triggering the designated development provisions of the EPA Act (and the requirement for an Environmental Impact Statement and wider community consultation). His Honour concluded that Tropic Asphalts had ‘deliberately flout[ed]’ conditions 4 and 6 of the consent and, in doing so, had caused ‘significant and egregious’ damage to the statutory scheme enshrined in the EPA Act.
The organised nature of Tropic Asphalt’s breach was the first of three aggravating factors considered and applied by his Honour in sentencing. In fixing a sentence for Charge 1, His Honour also found that the following two additional aggravating factors arose:
His Honour found that Tropic Asphalts’ conduct amounted to an organised criminal enterprise because Tropic Asphalts had breached condition 4 on all but one day of its operating period and had breached condition 6 on all but six days of its operating period. In considering its conduct on the non-charge days , his Honour found that the delivery dockets prepared by Tropic Asphalt demonstrated its knowledge of continuing breaches of the development consent.
As the breaches were committed to fulfil contractual obligations, and to avoid the expense of making an additional development application which properly represented the amount of asphalt to be produced, his Honour found that the offences were also carried out for financial gain.
Mitigating factors considered by his Honour in sentencing included Tropic Asphalts’ entry of guilty pleas, for which His Honour awarded a 10% discount for both charges. His Honour also further reduced the fine for Charge 2 to give effect to the principle of totality.
The case serves as a timely reminder of the importance of maintaining the integrity of the planning system and how serious a deliberate breach of the EPA Act is seen to be. It also highlights the importance of bringing an analytical approach to the assessment of development applications and taking steps to monitor compliance with conditions of development consents. The Decision should also give local councils confidence to take appropriate legal action in response to serious breaches of environment and planning legislation.
If you have questions about anything raised in this article, or bringing a prosecution, you can contact our experienced Planning, Environment & Local Government team.
 relying on the decisions of Basten JA and Hamill J in LN v R  NSWCCA 131