MONOGRAPH 40 volume 1

28 Transparent and consistent sentencing in the Land and Environment Court of NSW: orders for costs as an aspect of punishment Judicial Commission of NSW The Local Court is restricted in the types of Additional Orders it may make, whereas the LEC is not. For example, under s 250(1) of the POEO Act , the Local Court is not authorised to make an order that involves: environmental restoration or enhancement projects; environmental audits of activities; payments to the Environmental Trust; and, a financial assurance paid to the EPA for environmental purposes. 250 The Local Court is also prevented from making an order for any “restorative justice activity” that the LEC is authorised to make under s 250(1A) of the POEO Act . Provisions preventing the Local Court from making Additional Orders along these same lines — and the occasional additional jurisdictional restriction 251 — are found in other pieces of environmental protection legislation. While the EPA Act is primarily concerned with environmental development and planning offences, s 126(3) provides for “revegetation” orders, which are more consistent with environmental protection instruments and the principles of environmental rejuvenation where unlawful damage has occurred: Where a person is guilty of an offence involving the destruction of or damage to a tree or vegetation, the court dealing with the offence may, in addition to or in substitution for any pecuniary penalty imposed or liable to be imposed, direct that person: (a) to plant new trees and vegetation and maintain those trees and vegetation to a mature growth, and (b) to provide security for the performance of any obligation imposed under paragraph (a). More detailed information on the Additional Orders available under each of the relevant Acts is provided in the section headed Additional Orders at [2.2.7]. Amendments to the EPA Act, in mid - 2015 , also introduced a three-tiered system to the categorisation and enforcement of environmental planning offences, 252 although this Act allocates jurisdictional responsibilities to the courts very differently to the POEO Act . 253 The Supreme Court is not authorised to exercise jurisdiction in respect to offences against the EPA Act  254 — regardless of whether the offence is categorised as a Tier 1, Tier 2 or Tier 3 offence — and this has always been the case. 255 In contrast with Tier 1 offences under the POEO Act , proceedings for Tier 1 offences under the amended EPA Act (s 125A) may only be heard by the Local Court or by the LEC in its summary jurisdiction: s 127(1). This is despite the Tier 1 EPA Act offences: • including “intent” as an aggravating factor to the commission of the alleged offence (paralleling the “wilful” commission of Tier 1 offences under the POEO Act ) • carrying the additional aggravating factors of either: – caused or was likely to cause significant harm to the environment (s 125A(1)(b)(i)) or – caused the death of or serious injury or illness to a person (s 125A(1)(b)(ii)) • carrying the same maximum monetary penalties as the Tier 1 POEO Act offences, 256 but without the option of imposing a custodial sentence (in addition to, or instead of a monetary penalty). 250 Under the provisions of s 250(1)(c), (d), (e) and (h) of the POEO Act . 251 For example, under the Water Management Act 2000, the Local Court is not authorised to make an Additional Order under s 353G(1)(c), that is “order the offender to attend, or cause an employee or employees or a contractor or contractors of the offender to attend, a training or other course specified by the court”. 252 Changes to the EPA Act , introduced by the Environmental Planning and Assessment Amendment Act 2014, also created a three-tiered system of penalties for development and planning offences, classified according to the seriousness of the offence and the culpability of the offender. New maximum penalties applied to each “tier”. In contrast with Tier 1 offences under the POEO Act , proceedings for Tier 1 offences under the amended EPA Act (s 125A) may be taken before the Local Court (as well as the LEC in its summary jurisdiction): s 127(1). The commencement date for these and other changes was 31 July 2015. See Environmental planning offences at [2.3.2] for further details. 253 See Appendix B (Part 2) for an overview of the jurisdictional responsibilities and overlaps with regard to the EPA Act . 254 EPA Act , s 127. 255 The inaugural EPA Act , which received assent on 21 December 1979, directed under s 127(1) that: “Proceedings for an offence against this act may be taken before a court of petty sessions held before a stipendiary magistrate sitting alone or before the court in its summary jurisdiction”. Under s 4(1) [Interpretations] of that Act, “court” means the Land and Environment Court. 256 Reflecting the maximum available tariff of the principal component of the monetary penalty: being a fine of $5 million where the “wilful” offender is a corporation, and a fine of $1 million where the “wilful” offender is an individual: POEO Act , s 119.