MONOGRAPH 40 volume 1

34 Transparent and consistent sentencing in the Land and Environment Court of NSW: orders for costs as an aspect of punishment Judicial Commission of NSW 1.6.2 Crimes against environmental planning laws The set of offences that involve breaches of environmental planning laws are manifestly different to crimes against environmental protection laws. The bulk of such offences dealt with by the LEC — as is the case in the Local Court — involve a failure to receive consent (or apply for a permit) to carry out a development under various sections of the EPA Act , including: • carry out development without consent, EPA Act , s 76A(1)(a) • carry out development not in accordance with consent, EPA Act , s 76A(1)(b), and the more general: • do things forbidden under the EPA Act , s 125(1). It is a criminal offence to develop without consent or to breach the conditions of development consent. 286 Offenders may be individuals or corporations. Typically, local councils are the regulatory authority which prosecutes for breaches of environmental planning laws. 1.6.2.1 Harm in the context of economically sustainable development Ecologically sustainable development (ESD) has been embraced by international, national, state and local governments as the best strategy for managing the ongoing tension between environmental protection and economic growth. It has been claimed that “(t)he shift from unsustainable to sustainable growth patterns has been identified as probably the most complex agenda facing governments today”, 287 and “(a)t a practical level, the vast majority of governments in industrialized countries … will continue to depend on regulatory policy to achieve specific environmental objectives”. 288 Environmental planning laws in NSW operate within a context of economically sustainable development, fundamentally through regulatory policies and legislation using a “command and control” approach. 289 Legal governance reinforced by criminal sanction is used to regulate and punish undesirable building activities that negatively impact on the natural environment and/or the built environment. 290 286 Carrying out a development without consent and breaching the terms of a development consent are offences under the EPA Act (see s 127(7)). Proceedings to remedy or restrain a breach “are more frequently dealt with by civil enforcement proceedings rather than prosecutions. A criminal conviction for these offences cannot be made while the same matter is the subject of civil enforcement proceedings, or after an order has been made in civil enforcement proceedings.” Environmental Defenders Office NSW (ed), Environmental law toolkit – NSW – a community guide to environmental law in New South Wales , Federation Press, 5th edn, 2005, pp 46–47. 287 N Gunningham and P Grabosky, Smart regulation: designing environmental policy , Clarendon Press, 1998, p 30 citing S Dovers, “Information, sustainability and policy” (1995) 2(3) Australian Journal of Environmental Management 142. 288 Gunningham and Grabosky, ibid, p 30. In Garrett v Freeman (No 5) (2009) 164 LGERA 287; [2009] NSWLEC 1, Lloyd J at [58] stated: It is beyond dispute that the purpose of the system of planning and development control is to promote the proper management of resources or land for the economic, social and environmental welfare of the community: Power v Penthill House Pty Ltd (1993) 80 LGERA 247 at 252 per Stein J. 289 Gunningham and Grabosky, ibid, fn 3 at p 4, where it was stated: “command and control” is a conventional and common approach to environmental regulation. “The term ‘command and control’ refers to the prescriptive nature of the regulation (the command) supported by the imposition of some negative sanction (the control)”. 290 The term “built environment” refers to the man-made surroundings that provide the spatial setting for human activities, that include erected structures such as houses, offices, shops and shopping centres, schools, churches, business centres and industrial areas. Playing fields, parks and other green spaces are also considered an integral part of the built environment. Transport means (roads, railways, etc), energy networks and water supply form part of the supporting infrastructure. More broadly defined, “the built environment is the human-made space in which people live, work, and recreate on a day-to-day basis”: K Roof and N Oleru, “Public health: Seattle and King County’s push for the built environment” (2008) 71(1) Journal of Environmental Health 24.