MONOGRAPH 40 volume 1

50 Transparent and consistent sentencing in the Land and Environment Court of NSW: orders for costs as an aspect of punishment Judicial Commission of NSW Table 3: “Top 10” environmental planning and pollution offences convicted in the LEC — 2000 to 2015 (principal offence only) Rank Offence category Legislation Number % 1 Pollute water offences a POEO Act , Pt 5.3, s 120 118 23.5 2 Carry out development without consent/not in accordance with consent b EPA Act , s 76A(1) 78 15.5 3 Contravene any condition of licence c POEO Act , s 64(1) 55 11.0 4 Unlawfully transport and/or dispose waste d POEO Act , ss 143 and 144 42 8.4 5 Offend against direction or prohibition (“s 125 offences”) e EPA Act , s 125(1) 40 8.0 6 Discharge oil/liquid/prohibited substance from ship into State waters f Marine Pollution Act (rep), s 8(1) 39 7.8 7 Harm endangered/threatened species (plant, animal or ecological community) g NPW Act , s 118A 27 5.4 8 Clear native vegetation contrary to Act h NV Act , s 12 24 4.8 9 Air pollution offences i POEO Act , Pt 5.4 10 2.0 10 Erect building without construction certificate EPA Act , s 81A(2)(a) 9 1.8 Total for “Top 10” environmental offences in LEC 442 88.0 Tier 1 offences 9 1.8 All remaining environmental offences in LEC 51 10.2 Total number of cases in LEC 502 100.0 a Includes 14 cases of pollute waters under the CW Act (rep) which was repealed on 30 June 2006. b Includes one case under s 75D(2) of the EPA Act : “Fail to comply with conditions of approval”. c Includes five cases of “Occupier of premises with scheduled activity not hold licence”: s 48(2) of the POEO Act . d Includes 34 cases of waste offences under s 143(1)(a) of the POEO Act : “Unlawfully transport waste” (or variants) (16 cases); s 143(1)(b): “Owner of waste transported to unlawful waste facility” (3 cases); s 144(1): “Permit land to be used unlawfully as a waste facility” (11 cases); and, s 144AA(1): “Cause/permit/supply false misleading info re asbestos waste” (4 cases). The remaining eight cases were charged under the Waste Minimisation and Management Act 1995 (rep): s 63(1): “Disposing of waste on land without lawful authority” (4 cases); and, s 64(1): “Allow land to be used as waste facility without lawful authority” (4 cases). e Hereafter referred to as “s 125 offences”. Includes: “Do things forbidden to be done under Act” (19 cases); “Contravene tree preservation order” (15 cases); and, “Fail to do thing directed to be done under Act” (5 cases). Also includes one s 125(2) offence: “Do things forbidden to be done by regulations”. Where s 125(1) of the EPA Act was the only offence charged it was counted as a discrete offence. f The Marine Pollution Act 1987 was repealed on 1 September 2014. A number of similar offences, with the same maximum penalties, are grouped under this category: s 8(1) — “Discharge as master oily mixture from ship into State waters” (11 cases), “Discharge as owner oily mixture from ship into State waters (11 cases); and, “Discharge oil or oily mixture from ship into State waters” (8 cases); s 18(1) — “Crew etc responsible for discharge of oil into State waters” (2 cases); “Owner of ship discharging liquid substance into waters (1 case); “Person causing discharge of liquid substance from ship” (2 cases); “Master of ship discharging liquid substance into waters” (1 case); and, s 27(1) — “Unlawfully discharge prohibited substance into State waters” (3 cases). g Also includes five cases of “Offence of damaging reserved land” under s 156A of the NPW Act ; and, two cases of “Harming protected fauna, other than threatened species, endangered populations or endangered ecological communities” — under s 98(2) of the NPW Act . h Also includes one case of “Contravene Pt 2-clearing native vegetation and land” under s 17(1) of the NVC Act (rep); and, four cases of “Clear native vegetation contrary to consent/code of practice” under s 21(2) of the Native Vegetation Conservation Act (rep). This Act was repealed on 1 January 1998. i Also includes two cases of air pollution offences under the Clean Air Act 1961 (rep): s 10 — “Scheduled premises to be licensed” (1 case); and, s 14 — “Occupiers to maintain and operate control equipment” (1 case). place with 42 offences (8.4%), while offend against direction or prohibition (s 125(1) of the EPA Act ) filled the fifth spot with 40 offences (8.0%) in the 15-year study period. Rounding out the “Top 10” environmental offences were: discharge offences under the repealed Marine Pollution Act (39 offences); harm endangered/threatened species (plant, animal or ecological community) under the NPW Act (27 offences); clear native vegetation contrary to the NV Act (24 offences); air pollution offences (10 offences); and, erect building without construction certificate under s 81(2)(a) of the EPA Act (9 offences).