Trees win developer loses!
Sue Brooks March 11th, 2010
It was with much joy that I learned Council scored a victory in the courts re some illegal land clearing in Hervey Bay. The complaint was made by concerned residents and Council officers were able to attend quickly to gather evidence. I urge residents to report land clearing activities so that Council can check if the owners of the land do have the appropriate permits.
The Council media release follows…..
10 March 2010
Landmark win for the environment in Court for Fraser Coast Regional Council
The Fraser Coast Regional Council successfully prosecuted a Townsville property developer in a landmark environmental protection case in the Magistrate’s Court in Hervey Bay on Monday of this week.
The Council instigated legal action against developer, Wulguru Heights Pty Ltd, (part of the Santalucia group of companies), after several Dundowran Beach residents complained about vegetation clearing on freehold beachfront land at Dundowran Beach in May 2008.
After pleading guilty to clearing vegetation without an effective development permit (under section 4.3.1 of the Integrated Planning Act 1997), Wulguru Heights Pty Ltd was convicted, fined $12,600 and ordered to pay costs of $20,000 to FCRC. The company was also ordered to rehabilitate the cleared land, starting within six months.
Councillor Sue Brooks said the decision was just.
“It’s great to see the courts taking a tough stand on environmental issues and supporting the Council in its endeavours to protect our natural vegetation and although the rehabilitation will take a long time to mitigate the effects of the bulldozing I think it’s a great leap forward,” she said.
“Land owners need to be very aware that the Council will diligently protect vegetation and we encourage residents to report as soon as possible any vegetation clearing – especially broad scale clearing – that they suspect is illegal.”
When the Council’s Planning Compliance and Vegetation Management Officers investigated the complaints, they found that the 14 hectares of land where the clearing was undertaken, consisted of partially mapped natural areas and regrowth vegetation adjacent to mapped Of Concern and Essential Habitat (black breasted button quail) ecosystems. No development applications or approvals existed over the land at the time of the clearing.
The contractor who carried out the vegetation clearing will be sentenced at a later date.
Fraser Coast Regional Council’s Acting Director of Development Services Michael Ellery said the Council was pleased with the result.
“The penalty imposed and rehabilitation orders made by the Court send a strong message to land owners that they cannot pre-emptively clear vegetation and must obtain the appropriate development approvals,” he said.
End
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- Comments(22)
Hi Sue,
Could I ask where exactly was this illegal land clearing in Dundowran Beach? I saw it on the news last night on channel 9, but I couldn’t recognise the area.
Pat
Patricia the clearing occurred between Eli Waters and Dundowran Beach along the foreshore
Gidday Sue, well that seems a very good outcome for the Council and commonsense.
Now this takes me on to a similar thing that happened on Fraser Island, when DERM destroyed much pristine vegetation and aboriginal middens when they erected the $1,000,000.00 farce of electric grids and dingo fences.
Many of the Traditional land owners complained about the rampant destruction of their land, but DERM went ahead anyway.
Apparently since they are in Govt, they can do what they like with no respect for the land or it’s original owners.
Very sad and disrespectful, dont you think ?
Thanks Sue, that explains why I didn’t notice it myself.
As to the wording of the Council Media release – It says that the developer got fined, but say that the contractor will be “sentenced” at a later date. Why does the contractor get a jail term, yet the millionaire developer just gets a small fine? And more importantly, how does the Council know what the courts decision will be? I suggest it needs to be re-worded.
Well done FCRC.. feel free to censor this Sue if you feel I’ve overstepped the mark but Santa Lucia to my recollection was an arrogant Bundaberg based developer. Whilst he did some good in bringing new projects to that area, Mr Lucia was just as well known in that city for his develop-at-any-cost attitude and his complete disregard for the residents of that city.
It is no surprise then that a company owned by this person was attempting to take matters into their own hands to ‘improve’ the saleability of their development.
Very sad and this kind of behaviour is certainly not welcome on the Fraser Coast.
I think a sentence in this context means either custodial or fine but I take your point. Too late to change the wording this time but I take your point for the future. Ta, Sue
Hi Sue,
A fine is NOT a sentence. There are two types of sentences – a custodial sentence and a non-custodial sentence. A fine does NOT come under the definition of either. A non-custodial sentence is where the sentence is served elsewhere than in a prison (for example, on probation). Clearly, to the common man and woman, the word “sentencing” is much more serious than a “fine”, and the media release is suggesting that the contractor is facing more serious punishment than the developer. You say that it is “Too late to change the wording”, but I suggest to you that as it is an electronic news release on a website, that’s simply not true. It’s not as if I’m asking you to retract any comments you’ve made on the media. All I’m asking is that you modify the wording on the council’s website media release section. Surely that’s not too much to ask.
I take your point Patricia. I meant that it is too late in terms of correcting the release prior to circulation. i understand that the operator is facing separate charges but I do not know the detail. I will endeavour to make enquiries with a view to correcting the wording of the release. Thanks for the info, cheers, Sue
Patricia,
Seeing as you appear to have an above average knowledge of the law?
Perhaps you could tell us what a fine is, if it’s not a sentence?
If a judge or magistrate commands you to go to jail or pay a fine, is that not one and the same thing?
Command/sentence/direction, please explain Oh knowledgeable one, is this not just a play on words?
Sadman
Hi Sadman,
In law, the most common punishments are “fine”, “sentence”, and “execution”. To the “normal person”, they see the reporting of these punishments in an increasing seriousness. For example, you don’t expect to read of a person convicted of parking in a handicapped zone to be “sentenced” or “executed”. Likewise, you don’t expect to read of a person convicted of murder, rape or chid molestation to be “fined”, but when you read in a Council media release that a contractor is to be “sentenced” at a later date, one can’t help but to think this is some sort of serious pooh that he’s found himself in – especially so when the developer was simply given a small fine. It might sound pedantic to some, but these are really basic terms that shouldn’t be confused – especially in a media release. Believe me, many people and organisations have paid dearly for making this very same mistake. This is why I suggested the release be changed.
Here is a definition from a legal dictionary.
Main Entry: sen·tence
Pronunciation: ‘sent-&ns, -&nz
Function: noun
Etymology: Old French, opinion, judicial sentence, from Latin sententia, ultimately from sentire to feel, think, express an opinion
1 : a judgment formally pronouncing the punishment to be inflicted on one convicted of a crime
2 : the punishment that one convicted of a crime is ordered to receive
I understand the bulldozer operator is in serious trouble and is being dealt with via the courts separately. But I’m not worried about the wording in the media release. i believe the intent to be clear and while we may have differing understandings or interpretations about what a particular word means the real debate should be focussed on the fact that a developer (aided by an earth moving operator) did the wrong thing and was caught and dealt with via our legal system. That, in my mind, is the real lesson here.
I do not see how the machinery operator should be more liable than the developer who asked for the task to be completed.
As an operator myself the responsibility is on me to ensure the right permits are in place and that I’ve ‘dialed before I dig’ etc but if a developer calls me up and asks me to do a task, he’s the one willing to commit the crime.
Its a bit like murder and manslaughter isn’t it? The developer is doing something premeditated – he willingly wants to execute said trees. The contractor on the other hand is merely an accomplice who has been dragged in to perform the execution.. shouldn’t the fines be heavier for the developer??
The end result of this will no doubt be that the developer has a laugh, ratepayers foot half the legal bill and one bull dozer owner will be licking his wounds or worse sent broke.
Sue,
I thank you for your research, I had begun to doubt my memory.
Sadman
Sue, you say that the “wording” of a media release “doesn’t matter”, as long as it is released with the right intentions. That seems to be the very complaint that people are making regarding our council in general. It seems all too often, that as long as council “intend” to do the right thing, it doesn’t matter to them if they achieve their goal or not.
And to think that it was you who was complaining about the Chronicle a few weeks ago because of their “wording” and even going so far as to call for all council advertising to be removed and given to The Indy.
Very, very poor form Sue. I cannot express how disappointed I am in you.
Sentencing is indeed the correct term for the context, Patricia. Sentencing is simply the part of the court proceedings after the finding of guilt. The result is a sentence. The sentence given to an offender can be a fine, community service, probation, restitution or imprisonment.
I agree Patricia that wording is in important but in the context of the media release in question I don’t believe an error has been made. I do believe the contractor will be ‘sentenced’.
Ben this should be a lesson that yes a contractor must check that he is not undertaking illegal activity. Surely this is just common sense. Everyone knows that tree clearing is restricted especailly those employed to remove it!
Bilbo,
I’ve been a servant of the court for more years than I care to remember, and I have NEVER heard of anyone “sentenced” to a fine. Even if it was true, any media person worth their salt knows that you need to use terms that are familiar and recognisable to the common man. That’s why they don’t use complicated measurements and formulars – instead they use comparisons. For example – they describe water volumes as “3 times the size of Sydney Harbour”, and drink drivers as “3 times over the legal limit” etc. To say that someone is to be “sentenced” next week, leads people to believe that he will be jailed – not simply fined. It is poorly worded, and the fact that this has been pointed out to those responsible and that they refuse point blank to change it, just indicates that it was worded this way on purpose- or for a reason. I just hope that the “reason” isn’t what I’m thinking it is.
Patricia I haven’t pointed out the wording issue to the media section yet but will do so today. So no one has refused to change it. But I fail to understand why you are so concerned about the use of this word. Council has absolutely no influence upon the courts so may I enquire as to what you refer? I believe the general public will interpret the word as I have which is – that the punishmant for the contractor is not yet decided.
Patricia,
Please show a little commonsense. You have the dictionaries view, the fact that at least three people on this site understands, just you who doesn’t !!!
If we followed your suggestion we’d all be still grunting, society hasn’t to the best of my knowledge, got to the state of dumbng things done for the lowest common denominator.
Based on your post, maybe that is what is wrong with our legal system. You would have heard the old saying
“Lie down with dogs, get up with fleas”, perhaps our legal people should go back to the dictionary for their interpretations.
Sadman
Patricia, The use of the term sentence in the media release is entirely correct. You seem to feel that you can pre-judge what the magistrate or judge is going to decide is the appropriate sentence. When a case is adjourned for “sentencing” that does not tie the hands of the magistrate or judge to imposing imprisonment. The sentence is still at her discretion, including fines and communithy service.
In her sentencing she can still order the offender pay a fine or undertake community service. To tie her hands to ordering imprisonment, as you suggest, is grossly unfair. The relevant section of the Penalties and Sentences Act 1992 is s45.
Hi Patricia,
I have to ask. What kind of court have you been working in? Saudia Arabia? The Talibani Supreme Sharia Court – certainly not the Maryborough Magistrates Court? You say that the 3 most common punishments are ‘”fine, “sentence” and “EXECUTION”‘. Sureley community service ranks up there as well. How many people have you seen sentence to death?
This whole thread about what a sentence is a load of nonsense. the process of sentencing must include the full range of punishments including fines.
Stan
Me thinks it is time to call this thread Case Closed! Ta, Sue