Australia: Criminal negligence established by failure to comply with conditions of a project approval

Last Updated: 4 September 2016
Article by Breellen Warry and Rebecca Hiscock

Most Read Contributor in Australia, September 2017

In a recent decision in Secretary, Department of Planning and Environment v Charbon Coal Pty Ltd [2016] NSWLEC 106, the Land and Environment Court (Court) found Charbon Coal Pty Ltd (Company) was criminally negligent and committed an offence against section 125(1) of the Environmental Planning and Assessment Act 1979 (NSW) (EP&A Act) following the Company's breach of a condition of its Part 3A approval (Approval). This decision highlights the importance of complying with conditions of approval, particularly a condition which requires compliance with an environmental assessment (EA). While a number of other cases have dealt with a breach of conditions of approval, including in connection with mining or quarrying operations,1 the Court distinguished this case on the basis that the active decision on the part of the Company to construct a haul road in a different location to that which was approved warranted a finding of negligence.


The Company, a subsidiary of Centennial Coal Company Ltd (Centennial), engaged Big Rim Pty Limited (Contractor) to manage and carry out all open cut operations at Charbon Colliery (Colliery), an open cut and underground coal mining operation. In 2010 the Approval for the expansion of the Colliery was granted, a condition of which required that a haul road be constructed in a location identified in the EA, to ensure an Indigenous heritage site was not disturbed.

The Contractor proposed constructing the haul road in a different location, on the basis that the location proposed by the EA was sub-optimum because of its steeper grade. The Company's Environment and Community Manager (ECM) authorised the Contractor to take this course of action, and in 2012 the haul road was constructed, in breach of the Approval.

The Court's decision

As the Company pled guilty to the offence, the Court had only to determine an appropriate sentence, by taking into account relevant aggravating and mitigating factors.

Aggravating factors

An important consideration in this case is upholding the statutory scheme for orderly planning in NSW under the EP&A Act. The Company acknowledged that it was complicit in the breach, and sanctioned it. The Court found that the Company's substantial and easily avoided failure to comply with the conditions of the Approval in relation to the protection of the Indigenous heritage site resulted in archaeological and cultural harm. Further environmental harm by way of clearing 0.59 ha of Box Gum Woodland (BGW), a threatened ecological community under the Threatened Species Conservation Act 1995 (NSW) also occurred. While the Company submitted that the impact the clearing had on BGW was minor in this instance, the Court held this submission ignored the cumulative impacts of multiple clearing events which have resulted in that community being threatened.

The Court also considered whether the Company was negligent, as this would increase the objective seriousness of the offence. The Company argued that the offence was the result of a systemic failure to ensure appropriate systems were in place to check and monitor the Contractor's compliance with the Approval. The Court found however that the Company, through its ECM, was aware of and facilitated the construction of the haul road in a different location to that which was specified in the EA. A person in the ECM's position should have been aware of the need to comply with the conditions of the Approval, and accordingly the Court found the Company had been negligent.

Mitigating factors

The Company's involvement in the local community and expression of remorse (such as writing letters to Aboriginal stakeholders and issuing a media statement) were found to be mitigating factors. The extensive measures put in place by Centennial after the offence to improve environmental management and compliance procedures, and ensure further breaches of conditions of approval would not occur, were found to reduce the perceived likelihood of reoffending. However, the Court did not accept that the Company's work to rehabilitate the Colliery following its closure demonstrated that the Company was of good corporate character, as the rehabilitation was a condition of the Approval.


The penalty of $250,000 was reduced by 30% to $175,000 in light of the early guilty plea and other mitigating factors. The Company was also ordered to pay costs. The Court commented that the penalty should serve as a general deterrent, including to Centennial, which operates other mines.

When undertaking projects, it is now more important than ever to ensure that conditions of consent are complied with to prevent breaches of the EP&A Act and possible enforcement action being taken. Significant penalties can apply for breaches of the EP&A Act, particularly following amendments to the EP&A Act which commenced on 31 July 2015.

In addition, the Department of Planning and Environment (DPE) has expanded its compliance team, and this year released its Prosecution Guidelines and Compliance Policy. The DPE's compliance reports show a marked increase in compliance monitoring activities by the DPE in the last year, evidencing its commitment to ensure that high standards of compliance with environmental planning and assessment legislation are achieved.2


1 Secretary, Department of Planning and Environment v Boggabri Coal Pty Limited [2014] NSWLEC 154; Director-General, Department of Planning & Infrastructure v Integra Coal Operations Pty Ltd [2012] NSWLEC 255; Minister for Planning v Hunter Quarries Pty Ltd [2010] NSWLEC 246.

2 The Compliance Report published by the DPE in June 2016 indicates that the DPE carried out 1391 compliance activities in the 2015/2016 financial year, as compared with 1046 in the 2014/2015 financial year and 840 in the 2013/2014 financial year (as disclosed in the reports for those years).

This publication does not deal with every important topic or change in law and is not intended to be relied upon as a substitute for legal or other advice that may be relevant to the reader's specific circumstances. If you have found this publication of interest and would like to know more or wish to obtain legal advice relevant to your circumstances please contact one of the named individuals listed.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Rebecca Hiscock
Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.