Land and Environment Court New South Wales Medium Neutral Citation: Secretary, Department of Planning and Environment v Sell & Parker Pty Ltd [2022] NSWLEC 60 Hearing dates: 5, 6, 7, 8, 9, 22, 23 July and 17 August 2021 Date of orders: 19 May 2022 Decision date: 19 May 2022 Jurisdiction: Class 5 Before: Pepper J Decision: See orders at [467]. Catchwords: ENVIRONMENTAL OFFENCES: offender charged with two offences of contravening ss 76A(1)(b) and 125(1) of the Environmental Planning and Assessment Act 1979 – determination of appropriate sentences – sentencing principles – extent of environmental harm caused by the commission of the offences – state of mind of the offender at the time of the commission of the offences – whether the defendant held a genuine and reasonable belief that the prosecutor had exercised its discretion not to prosecute and that it was entitled to continue to offend – De Simoni principle – objective seriousness of the commission of the offences – whether contrition and remorse demonstrated – specific and general deterrence warranted – comparable cases – application of the totality principle – defendant convicted and fined in respect of both offences – order for moiety made – publication order made. Legislation Cited: Blacktown Local Environmental Plan 2015, cl 2.1 Crimes (Sentencing Procedure) Act 1999, ss 3A, 21A(2), 21A(3), 22, 23 Criminal Procedure Act 1986, ss 257B, 257G Environmental Planning and Assessment Act 1979, ss 5, 76A(1), 119J, 119K(3), 121B, 125, 125A, 125B, 126(2A) Fines Act 1996, ss 6, 122 Protection of the Environment Operations Act 1997, ss 64(1), 250(1)(a) Cases Cited: ACR Trading Pty Ltd v Fat-sel Pty Ltd (1987) 11 NSWLR 67 Axer Pty Ltd v Environment Protection Authority (1993) 113 LGERA 357 Barbaro v The Queen [2014] HCA 2; (2014) 253 CLR 58 Bentley v BGP Properties Pty Ltd [2006] NSWLEC 34; (2006) 145 LGERA 234 Cabonne Shire Council v Environment Protection Authority [2001] NSWCCA 280; (2001) 115 LGERA 304 Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 Chief Executive, Office of Environment and Heritage v Orica Pty Ltd; Environment Protection Authority v Orica Pty Ltd [2015] NSWLEC 109 Commonwealth of Australia v Director, Fair Work Building Industry Inspectorate [2015] HCA 46; (2015) 258 CLR 482 Dincel Constructions System Pty Ltd v Penrith City Council [2021] NSWCCA 133 Elyard v The Queen [2006] NSWCCA 43 Environment Protection Authority v Ballina Shire Council [2006] NSWLEC 289; (2006) 148 LGERA 278 Environment Protection Authority v Barnes [2006] NSWCCA 246 Environment Protection Authority v Crown in the Right of New South Wales (Office of Environment and Heritage) [2019] NSWLEC 66 Environment Protection Authority v Dib Hanna Abdallah Hanna [2018] NSWLEC 80; (2018) 235 LGERA 114 Environment Protection Authority v Gilder [2018] NSWLEC 119 Environment Protection Authority v GrainCorp Operations Limited [2019] NSWLEC 143 Environment Protection Authority v Koppers Carbon Materials & Chemicals Pty Ltd (the Spill Incident) [2021] NSWLEC 12 Environment Protection Authority v M A Roche Group Pty Ltd [2014] NSWLEC 114 Environment Protection Authority v M A Roche Group Pty Ltd [2015] NSWLEC 29 Environment Protection Authority v Minto Recycling Pty Limited [2019] NSWLEC 193 Environment Protection Authority v Mortdale Recycling Pty Ltd [2019] NSWLEC 106 Environment Protection Authority v Rands [2019] NSWLEC 23 Environment Protection Authority v Sam Abbas (also known as Osama Abbas) [2021] NSWLEC 57 Environment Protection Authority v Sell and Parker Pty Ltd [2006] NSWLEC 626 Environment Protection Authority v Sell and Parker Pty Ltd [2007] NSWLEC 64 Environment Protection Authority v Sydney Water Corporation [2019] NSWLEC 100 Environment Protection Authority v Waste Recycling and Processing Corp [2006] NSWLEC 419; (2006) 148 LGERA 299 Environment Protection Authority v Wyanga Holdings Pty Ltd; Environment Protection Authority v Cauchi [2015] NSWLEC 78 Gittany Constructions Pty Ltd v Sutherland Shire Council [2006] NSWLEC 242; (2006) 145 LGERA 189 Harris v Harrison [2014] NSWCCA 84; (2014) 86 NSWLR 422 Hoare v The Queen [1989] HCA 33; (1989) 167 CLR 348 Hornsby Shire Council v Henlong Property Group Pty Ltd (No 2) [2019] NSWLEC 17 Johnson v The Queen [2004] HCA 15; (2004) 78 ALJR 616 Liverpool City Council v Leppington Pastoral Co Pty Ltd [2010] NSWLEC 170 LN v The Queen [2020] NSWCCA 131 Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 Martin v R; R v Martin [2021] NSWCCA 316 Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59 Minister for Planning v Moolarben Coal Mines Pty Ltd [2010] NSWLEC 147; (2010) 175 LGERA 93 Morris McMahon & Co Pty Limited v SafeWork NSW [2019] NSWCCA 36 Mouawad v The Hills Shire Council [2013] NSWLEC 165; (2013) 199 LGERA 28 Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120 Owens v R [2017] NSWCCA 16 Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610 Pesic v Sutherland Shire Council [2019] NSWLEC 38 Pittwater Council v Scahill [2009] NSWLEC 12; (2009) 165 LGERA 289 Plath v Rawson [2009] NSWLEC 178; (2009) 170 LGERA 253 R v AB [2011] NSWCCA 229; (2011) 59 MVR 356 R v De Simoni [1981] HCA 31; (1981) 147 CLR 383 R v Dodd (1991) 57 A Crim R 349 R v Harris [2007] NSWCCA 130; (2007) 171 A Crim R 267 R v MAK; R v MSK [2006] NSWCCA 381; (2006) 167 A Crim R 159 R v Nichols (1991) 57 A Crim R 391 R v Olbrich [1999] HCA 54; (1999) 199 CLR 270 R v Oliver (1980) 7 A Crim R 174 R v Solomon [2005] NSWCCA 158; (2005) 153 A Crim R 32 R v Thomson; R v Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383 R v Toohey [2019] NSWCCA 182 R v Visconti [1982] 2 NSWLR 104 R v Wheeler [2000] NSWCCA 34 R v Youkhana [2004] NSWCCA 412 Secretary, Department of Planning and Environment v Boggabri Coal Pty Limited [2014] NSWLEC 154 Secretary, Department of Planning and Environment v Leda Manorstead Pty Ltd (No 7) [2021] NSWLEC 26 Secretary, Department of Planning, Industry and Environment v Wollongong Recycling (NSW) Pty Ltd [2020] NSWLEC 125; (2020) 245 LGERA 241 The Council of the Municipality of Kiama v Pacific Real Estate (Warilla) Pty Limited [2009] NSWLEC 191 Veen v The Queen [1979] HCA 7; (1979) 143 CLR 458 Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465 Walden v Hensler [1987] HCA 54; (1987) 163 CLR 561 Water NSW v Barlow [2019] NSWLEC 30; (2019) 244 LGERA 1 Category: Sentence Parties: Secretary, Department of Planning and Environment (Prosecutor) Sell & Parker Pty Ltd (Defendant) Representation: Counsel: S Buchen SC and A Bonnor (Prosecutor) T Howard SC and J Johnson (Defendant) Solicitors: Secretary, Department of Planning and Environment (Prosecutor) Allens (Defendant) File Number(s): 2018/242442 and 2018/242443 Publication restriction: Nil Judgment TABLE OF CONTENTS TOPIC PARAGRAPH NO Sell & Parker Contravenes a Condition of its Development Consent for its Kings Park Metal Waste Recycling Facility [1] The Statutory Framework Creating the Offences [7] The Consent [12] Sell & Parker Receives Waste in Excess of the Limits Imposed by Condition A8 of the Consent [13] Events Leading Up to the Granting of the Consent and the Imposition of Condition A8 [25] The Department's Site Inspection on 20 September 2016 [77] Events After the 20 September 2016 Site Inspection and Meeting [86] Lloyd's Independent Audit [92] Further Site Inspection on 23 March 2017 [102] Development Control Order [103] Modifications to the Consent [106] Approvals Under Condition A8 of the Consent [108] Section 119 Notices [111] The Breaches of the Consent [126] Prosecutor's Evidence [129] The Evidence of Ritchie [130] The Evidence of Bourne [139] The Evidence of Dingle [150] The Evidence of Pizzolato [173] Records of Interview [188] Richards's ROI [188] Luke Parker's ROI [189] Defendant's Evidence [195] The Evidence of Luke Parker [196] Operations at the Site [206] The Emissions Collection System [214] The 20 September 2016 Site Inspection and Meeting [229] The Consequences of Lowering Receipts Below 90,000tpa [234] Lloyd's Independent Environmental Audit [236] November 2016 Board Meeting [242] Sell & Parker's Commitment to Protecting the Environment [247] Remorse and Contrition [248] Luke Parker's Oral Evidence [250] Measures to Avoid Re-offending [279] Francis Bethwaite Evidence [281] Sentencing Principles [282] The Purposes of Sentencing [282] Statutory Matters Required to be Taken Into Account in Sentencing [283] Objective Seriousness of the Offences [287] Nature of the Offences [291] Conclusion Regarding the Nature of the Offences [309] Sell & Parker's State of Mind at the Time of the Commission of the Offences [317] The Application of the Principle in De Simoni [319] Did Luke Parker's Words Constitute an Offer That Was Accepted by the Department or a Threat? [338] Sell & Parker's Belief Formed at the 20 September 2016 Site Inspection Meeting was Neither Genuine Nor Reasonable [346] Conclusion Regarding Sell & Parker's State of Mind [368] The Environmental Harm Occasioned or Likely to be Occasioned by the Commission of the Offences [369] Maximum Penalty [375] Reasonable Foreseeability of the Harm Caused or Likely to be Caused to the Environment by the Commission of the Offences [377] Control Over the Causes of the Commission of the Offences [378] Practical Measures Which Could Have Been Taken to Prevent or Mitigate the Environmental Harm [379] Sell & Parker's Reasons for Committing the Offences [380] Conclusion on the Objective Seriousness of the Offences [388] Subjective Circumstances of Sell & Parker [394] Prior Convictions [395] Assistance Provided to Authorities [397] Early Pleas of Guilty [401] Contrition and Remorse [410] Likelihood of Reoffending and Prospects of Rehabilitation [419] Corporate Character [421] The Offences Could Have Been Prosecuted in the Local Court [425] General and Specific Deterrence [426] General Deterrence [427] Specific Deterrence [438] Sentencing Corporations [445] Retribution and Denunciation [448] Consistency in Sentencing [449] Publication Order [452] Financial Means of Sell & Parker [453] Costs [454] Totality Principle [456] Moiety [462] Appropriate Sentence [463] Orders [467] Annexure A Sell & Parker Contravenes a Condition of its Development Consent for its Kings Park Metal Waste Recycling Facility 1. Sell & Parker Pty Ltd ("S&P") pleaded guilty to two offences of contravening ss 76A(1)(b) and 125(1) of the Environmental Planning and Assessment Act 1979 ("EPAA") committed between 26 May and 31 December 2016 ("2016 offence") and 1 January and 23 October 2017 ("2017 offence") at S&P's metal waste recycling facility at Lot 2, DP550522 (23-43 Tattersall Road) and Lot 5, DP7086 (45 Tattersall Road) Kings Park near Blacktown, NSW ("the site"). 2. Each offence concerns the carrying out of development on land otherwise than in accordance with a development consent which had been obtained and was in force, contrary to s 76A(1)(b) of the EPAA. The contraventions related to S&P's receipt of waste in excess of limits imposed by condition A8 of its development consent, State Significant Development ("SSD") 5041, granted by the Minister for Planning on 12 November 2015 ("the consent"). 3. The further amended summons filed on 5 June 2019 with respect to the 2016 offence was in the following terms: The Prosecutor seeks: 1. An order that the Defendant, Sell & Parker Pty Ltd (ACN 000 101 315) of Registered Office 11 Meadow Way, Banksmeadow, in the State of New South Wales, appear before a judge of the Court to answer to the charge that, between 26 May 2016 and 31 December 2016, at 23-43 and 45 Tattersall Road, Kings Park (Lot 2 DP 550522 and Lot 5 DP 7086) in the State of New South Wales, it committed an offence against section 125(1) of the Environmental Planning and Assessment Act 1979 (the Act) in that, it carried out development on land otherwise than in accordance with a development consent which had been obtained and was in force, contrary to section 76A(1)(b) of the Act. PARTICULARS Development consent obtained and in force Development consent SSD 5041 granted by the Minister for Planning dated 12 November 2015 (Development Consent) for increasing the processing capacity of the existing metal recycling facility, including reconfiguration and expansion of the facility into the adjoining site at 23-43 Tattersall Road, Kings Park (the Development). Conditions A7 and A8 of the Development Consent provide: A7. The Applicant shall not receive or process on the site more than 350,000 tonnes per calendar year of waste, subject to Condition A8. A8. Despite Condition A7, the Applicant shall not receive or process on the site more than 90,000 tonnes per calendar year of waste (on a weekly pro-rata basis) until: a) the Emissions Collection System for the hammer mill has been commissioned in accordance with Condition B20 and approved by the Secretary for operation; and b) a Final Occupation Certificate has been issued for the Development. Land to which the Development Consent applies 23-43 and 45 Tattersall Road, Kings Park (Lot 2 DP 550522 and Lot 5 DP 7086) in the State of New South Wales (the Site). Environmental planning instrument that provides that specified development may not be carried out except with development consent The Site is zoned IN1 General Industrial under the Blacktown Local Environmental Plan 2015. No development is permitted without consent in zone IN1 General Industrial. Development for the purposes of a resource recovery facility is permissible with development consent in zone IN1 General lndustrial. The Development is development for the purposes of a resource recovery facility. Development carried out at the Site At all relevant times, the Defendant, by itself, its servants and agents, was carrying out the Development at the Site pursuant to the Development Consent. Manner of breach of the Development Consent At all relevant times, the Emissions Collection System for the hammer mill had not been approved by the Secretary for operation and a Final Occupation Certificate had not been issued for the Development. Contrary to condition A8, the Defendant received more than 90,000 tonnes of waste at the Site between 26 May 2016 and 31 December 2016, namely, not less than 195,386.751 tonnes of waste. Date on which evidence of the offence first came to the attention of an investigation officer At an inspection of the Site on 20 September 2016, Mr Luke Parker, Chief Executive Officer of the Defendant, disclosed to Chase Dingle that the Defendant was "exceeding the 90,000 tonne limit". Mr Dingle was an investigation officer as at 20 September 2016. On 27 April 2017, in response to a notice issued to the Defendant by Mr Dingle pursuant to section 119J of the Act, Mr Parker sent an email to Mr Dingle detailing the amount, in tonnes, of waste received and processed on the Site during the 2016 calendar year demonstrating that the amount received was greater than 90,000 tonnes per annum. 2. An order that the Defendant be dealt with according to law for the commission of the offence. 3. Such orders under Part 8.3 of the Protection of the Environment Operations Act 1997 as the Court sees fit to make. 4. An order that the Defendant pay the Prosecutor's costs. 1. The further amended summons with respect to the 2017 offence was filed on 3 May 2019 and charged that: The Prosecutor seeks: 1. An order that the Defendant, Sell & Parker Pty Ltd (ACN 000 101 315) of Registered Office 11 Meadow Way, Banksmeadow, in the State of New South Wales, appear before a judge of the Court to answer to the charge that, between 1 January 2017 and 23 October 2017, at 23-43 and 45 Tattersall Road, Kings Park (Lot 2 DP 550522 and Lot 5 DP 7086) in the State of New South Wales, it committed an offence against section 125(1) of the Environmental Planning and Assessment Act 1979 (the Act) in that, it carried out development on land otherwise than in accordance with a development consent which had been obtained and was in force, contrary to section 76A(1)(b) of the Act. PARTICULARS Development consent obtained and in force Development consent SSD 5041 granted by the Minister for Planning dated 12 November 2015 (Development Consent) for increasing the processing capacity of the existing metal recycling facility, including reconfiguration and expansion of the facility into the adjoining site at 23-43 Tattersall Road, Kings Park (the Development). Conditions A7 and A8 of the Development Consent provide: A7. The Applicant shall not receive or process on the site more than 350,000 tonnes per calendar year of waste, subject to Condition A8. A8. Despite Condition A7, the Applicant shall not receive or process on the site more than 90,000 tonnes per calendar year of waste (on a weekly pro-rata basis) until: a) the Emissions Collection System for the hammer mill has been commissioned in accordance with Condition B20 and approved by the Secretary for operation; and b) a Final Occupation Certificate has been issued for the Development. Land to which the Development Consent applies 23-43 and 45 Tattersall Road, Kings Park (Lot 2 DP 550522 and Lot 5 DP 7086) in the State of New South Wales (the Site). Environmental planning instrument that provides that specified development may not be carried out except with development consent The Site is zoned IN1 General Industrial under the Blacktown Local Environmental Plan 2015. No development is permitted without consent in zone IN1 General Industrial. Development for the purposes of a resource recovery facility is permissible with development consent in zone IN1 General Industrial. The Development is development for the purposes of a resource recovery facility. Development carried out at the Site At all relevant times, the Defendant, by itself, its servants and agents, was carrying out the Development at the Site pursuant to the Development Consent. Manner of breach of the Development Consent At all relevant times, the Emissions Collection System for the hammer mill had not been approved by the Secretary for operation and a Final Occupation Certificate had not been issued for the Development. Contrary to condition A8, the Defendant received more than 90,000 tonnes of waste at the Site between 1 January 2017 and 23 October 2017, namely, not less than 268,645.476 tonnes of waste. 2. An order that the Defendant be dealt with according to law for the commission of the offence. 3. Such orders under Part 8.3 of the Protection of the Environment Operations Act 1997 as the Court sees fit to make. 4. An order that the Defendant pay the Prosecutor's costs. 1. It should be noted from the outset that the overwhelming majority of the sentence hearing was occupied by a factual dispute between the parties regarding statements made at a meeting that occurred at a site inspection on 20 September 2016 and the events that followed ("20 September 2016 site inspection meeting") relating to: 1. whether a Department of Planning and Environment ("the Department") official present at that meeting said words to the effect of "No. We don't want you to do that" or "we don't want you to do that" ("the Departmental response") in response to a statement made by the Chief Executive Officer ("CEO") of S&P, Luke Parker, that if the Department and the Environment Protection Authority ("EPA") wanted S&P to comply with condition A8 of the consent it would do so but "lay off" 50 staff in the process, and moreover, that this would have a detrimental impact on the steel industry in New South Wales ("NSW"); and 2. whether the Departmental response constituted a statement that the Department was exercising its discretion not to prosecute S&P for the 2016 and 2017 offences. 1. The contest was relevant to the state of mind of the defendant at the time of the commission of the offences and its objective culpability for their commission. It resulted in a protracted sentence hearing of eight days, the tender of additional documentation, the need for extensive cross-examination of multiple witnesses and the provision of lengthy oral and written submissions by both parties. The Statutory Framework Creating the Offences 1. Section 76A(1) of the EPAA relevantly provides: 76A Development that needs consent (1) General If an environmental planning instrument provides that specified development may not be carried out except with development consent, a person must not carry the development out on land to which the provision applies unless: (a) such a consent has been obtained and is in force, and (b) the development is carried out in accordance with the consent and the instrument. 1. Section 125(1) of the EPAA is in the following terms: 125 Offences against this Act and the regulations (1) Where any matter or thing is by or under this Act, other than by or under the regulations, directed or forbidden to be done, or where the Minister, the Secretary, a council or any other person is authorised by or under this Act, other than by or under the regulations, to direct any matter or thing to be done, or to forbid any matter or thing to be done, and that matter or thing if so directed to be done remains undone, or if so forbidden to be done is done, a person offending against that direction or prohibition shall be guilty of an offence against this Act. 1. Section 125B of the EPAA states: 125B Maximum penalties for offences against Act: Tier 2 (1) This section applies to an offence against this Act under section 125 (1), other than an offence to which section 125A applies or an offence for which a tier 3 maximum penalty applies. (2) A person who is guilty of an offence to which this section applies is liable to a tier 2 maximum penalty, being a penalty not exceeding: (a) in the case of a corporation: (i) $2 million, and (ii) for a continuing offence—a further $20,000 for each day the offence continues… 1. The site is located within the Blacktown City Local Government Area and at all relevant times was subject to the Blacktown Local Environmental Plan 2015 ("Blacktown LEP"). 2. Located on the site is a "resource recovery facility" within the meaning of the Blacktown LEP. The site is within an industrial land use zone described as "IN1 General Industrial" in cl 2.1 of the Blacktown LEP. The development of a resource recovery facility may only be carried out with consent on IN1 General Industrial land under the Blacktown LEP. The Consent 1. At all material times, the consent included the following relevant conditions (emphasis added): TERMS OF CONSENT … A4. The Applicant shall comply with any reasonable requirement/s of the Secretary arising from the Department's assessment of: a) any reports, plans, strategies, programs or correspondence that are submitted in accordance with this consent; and b) the implementation of any actions or measures contained in these reports, plans, strategies, programs or correspondence. STATUTORY REQUIREMENTS A5. The Applicant shall ensure that all licences, permits, and approvals/consents are obtained as required by law and maintained as required throughout the life of the Development. No condition of this consent removes the obligation for the Applicant to obtain, renew or comply with such licences, permits, or approvals/consents. … LIMITS OF CONSENT A7. The Applicant shall not receive or process on the site more than 350,000 tonnes per calendar year of waste, subject to Condition A8. A8. Despite Condition A7, the Applicant shall not receive or process on the site more than 90,000 tonnes per calendar year of waste (on a weekly pro-rata basis) until: a) the Emissions Collection System for the hammer mill has been commissioned in accordance with Condition B20 and approved by the Secretary for operation; and b) a Final Occupation Certificate has been issued for the Development. A9. In deciding whether to grant approval to operate the Emissions Collection System for the hammer mill in accordance with Condition A8, the Secretary shall take into account the Commissioning Report submitted in accordance with Condition B21. A10. The Applicant must record the amount of waste (in tonnes) received at the site on a daily basis. … AIR QUALITY Odour B15. The Applicant shall ensure the Development does not cause or permit the emission of any offensive odour (as defined in the POEO Act). Emissions limits B16. The Applicant shall ensure that emissions from the Development do not exceed the emission limits specified in the EPL. Air Quality Management Plan B17. Prior to the commencement of construction of the Development, the Applicant shall prepare an Air Quality Management Plan to the satisfaction of the Secretary. The plan must: a) be prepared by a suitably qualified and experienced person(s) in consultation with the EPA; b) describe the measures that would be implemented to ensure: i. all reasonable and feasible measures are employed to minimise air emissions; ii. compliance with the relevant conditions of this consent; iii. contingency measures are deployed to minimise impacts should adverse air emissions occur or appear likely to occur; c) include well defined triggers for the deployment of construction and operational air quality measures; d) include well defined triggers for ceasing or partially ceasing operations on site during adverse air quality conditions; e) include an Air Quality Monitoring System to evaluate the performance of the Development commensurate with the system proposed in the Air Quality Assessment prepared by ERM dated September 2015; f) include details of the location, frequency and duration of monitoring; and g) include a protocol to determine the occurrence of any exceedance of the criteria in the EPL should an exceedance occur. B18. The Applicant shall carry out the Development in accordance with the Air Quality Management Plan approved by the Secretary (as revised and approved by the Secretary from time to time), unless otherwise agreed by the Secretary. Air emissions mitigation B19. The Applicant shall: a) operate the Development so that air emissions are minimised during all meteorological conditions; and b) implement best management practice, including all reasonable and feasible air and odour emissions mitigation measures to minimise emissions from the Development, including but not limited to: (i) installation of an Emissions Collection System servicing the hammer mill that is capable of achieving emission control performance equivalent to the system described in the Air Quality Assessment prepared by ERM dated September 2015; (ii) operating one oxy-acetylene torch at a time; (iii) operating the oxy-acetylene torch only between the hours of 9 am and 3 pm; (iv) cutting any metal beam that is up to 100 millimetres thick with the shear, where possible; (v) enclosure of all conveyors and conveyor transfer points; (vi) dust suppression through the use of water sprays/misters; (vii) sealing of on-site surfaces and regularly maintaining them to prevent dust re-entrainment from vehicle movements and other equipment use; and (viii) installation of appropriate dust screens at the property boundaries. Emissions Collection System Commissioning B20. The Applicant shall commission the Emissions Collection System for the hammer mill. The Commissioning must: a) be undertaken by a suitably qualified and experienced person(s) in consultation with the EPA; b) test the performance of the system against the performance parameters set out in the Air Quality Assessment prepared by ERM dated September 2015; and c) identify and implement any changes to the system that may be necessary to achieve environmental air quality performance commensurate with that set out in the Air Quality Assessment prepared by ERM dated September 2015. Commissioning Report B21. The Applicant shall submit to the Secretary a Commissioning Report detailing the outcomes of the commissioning of the Emissions Collection System for the hammer mill. … INDEPENDENT ENVIRONMENTAL AUDIT C9. Within 1 year of the date of this consent, and every 3 years thereafter, unless the Secretary directs otherwise, the Applicant shall commission and pay the full cost of an Independent Environmental Audit of the Development. This audit must: a) be conducted by a suitably qualified, experienced and independent team of experts whose appointment has been endorsed by the Secretary; b) led by a suitably qualified auditor, and include experts in fields specified by the Secretary; c) include consultation with the relevant agencies; d) assess the environmental performance of the Development and assess whether it is complying with the requirements in this consent, and any other relevant approvals and relevant EPL/s (including any assessment, plan or program required under the approvals); e) review the adequacy of any approved strategy, plan or program required under the abovementioned consents; and f) recommend measures or actions to improve the environmental performance of the Development, and/or any strategy, plan or program required under the consents. C10. Within three months of commissioning this audit, or as otherwise agreed by the Secretary, the Applicant shall submit a copy of the audit report to the Secretary, together with its response to any recommendations contained in the audit report. Annual review C11. Within 1 year of the date of this consent, and every year thereafter, the Applicant shall review the environmental performance of the Development. This review must: a) describe the Development that was carried out in the previous calendar year, and the Development that is proposed to be carried out over the next year; b) include a comprehensive review of the monitoring results and complaints records of the Development over the previous calendar year, which includes a comparison of the results against the: (i) the relevant statutory requirements, limits or performance measures/criteria; (ii) requirements of any plan or program required under this consent; (iii) the monitoring results of previous years; and (iv) the relevant predictions in the EIS; c) identify any non-compliance over the last year, and describe what actions were (or are being) taken to ensure compliance; d) identify any trends in the monitoring data over the life of the Development; e) identify any discrepancies between the predicted and actual impacts of the Development, and analyse the potential cause of any significant discrepancies; and f) describe what measures will be implemented over the next year to improve the environmental performance of the Development. Sell & Parker Receives Waste in Excess of the Limits Imposed by Condition A8 of the Consent 1. S&P is a corporation with its registered office at 11 Meadow Way, Banksmeadow. Luke Parker is its CEO and managing director. S&P owns and operates 11 businesses, including metal recycling facilities at Blacktown, Nowra, Ingleburn, Banksmeadow, Newcastle and Coffs Harbour. 2. The Blacktown metal recycling facility is the site where the two offences were committed. S&P holds Environmental Protection Licence 11555 ("EPL") in relation to its activities at the site. 3. S&P processes much of the scrap metal it receives at its metal recycling facilities, including at the site, and then sells it to end users. 4. The Australian metal recycling industry is dominated by two large firms, with S&P being smaller than those firms in size. 5. S&P operates a metal shredder at the site (known as a "hammer mill") which, at the time of the commission of the offences, was one of only four shredders in the State. A metal shredder typically has capacity to process up to 500,000t per annum ("tpa") of light gauge metals. Light gauge metal includes any metallic feedstock suitable for processing though the shredder, such as cars and whitegoods. A picture of a shredder is provided below: 1. The shredder has a large electric motor which turns a hammer mill that pulverises the light gauge feedstock into a marketable commodity, as depicted in the image below: 1. S&P's hammer mill has the following features (which are not depicted in the above image): 1. an emissions collection system ("ECS"); 2. a projectile cover; 3. an acoustic shield; and 4. a pre-shredder. 1. In its metal recycling businesses S&P buys and sells ferrous (that is, iron and other heavy metals) and non-ferrous (including aluminium, copper, brass and bronze) scrap metals in varying quantities. Shred is purchased by operators of steel mills and electric arc furnaces to make new steel. 2. The major characteristics of the ferrous metal recycling stream are: 1. high-volume but low value metal scrap with high iron content; 2. light gauge ferrous materials processed through the hammer mill, such as vehicle bodies; 3. heavy metal materials that are too big to process through a shredder and are processed by shears which cut larger pieces of metal into smaller sizes, such as structural steel from demolition and old railway lines; and 4. over sized materials which need to be manually cut down using oxy-acetylene torches, such as large items of plant. 1. The major characteristics of the non-ferrous metal recycling stream are: 1. low volume but high value metal scrap with low iron content, such as brass, copper, aluminium, used lead acid batteries, radiators and catalytic converters; and 2. a high degree of manual handling and material separation when received by the scrap supplier with scales used to measure the weight of each non-ferrous metal. 1. Shredder floc (a mixture of plastics, glass, foam, rubber, dirt and other non-metal materials) is the waste material generated by metal shredders. It is typically disposed of in landfill, attracting a levy per tonne. 2. The potential environmental impacts associated with metal recycling facilities that have a shredder include dust emissions, other airborne emissions, noise, and vibrations. Events Leading Up to the Granting of the Consent and the Imposition of Condition A8 1. Having regard to the chronology below, there can be no doubt that at all times leading up to the granting of the consent that imposed conditions A7 and A8, among others, in their final form, that the regulators were concerned about the potential adverse environmental impacts associated with metal recycling at the site (especially with respect to air quality), including the proposed increase of this activity. 2. On 25 November 2013 BBC Consulting Planners ("BBC") wrote to the Department on behalf of S&P in these terms: We write on behalf of Sell and Parker Pty Ltd, in relation to their intention to lodge a development application under Section 78A of the Environmental Planning and Assessment Act 1979 ("EP&A Act") with the NSW Minister for Planning. The development application will seek the Minister's approval to expand the facility and increase the capacity of the existing waste metal recovery, processing and recycling facility at 45 Tattersall Road, Kings Park, from 90,000 tonnes a year to 350,000 tonnes a year. The Director-General's environmental assessment requirements (DGRs) for the preparation of an environmental impact statement (EIS) for the above development were issued 22 December 2011 and were issued based on information provided at that time. This letter requests any modifications to the DGRs based on changes to the proposed development outlined below. 1. On 23 December 2013 the Department provided the Director-General's Requirements ("DGRs") to BBC for the preparation of an Environmental Impact Statement ("EIS") for the proposed expansion of the site. It identified as "key issues": waste management, noise, vibration, air quality, and odour. The letter relevantly stated that: The EIS must address the following specific matters: … — a quantitative assessment of the potential air quality and odour impacts of the development on surrounding landowners; — a description of how the handling, transporting, production and storage of waste materials would be managed to control dust generation; and — details of all proposed mitigation, management and monitoring measures. 1. On 17 March 2014 S&P lodged a SSD development application seeking consent for an increase in the handling capacity of the existing waste metal recovery, processing and recycling facility at 45 Tattersall Road, Kings Park to 350,000tpa of waste ("SSD application"). It was proposed that the expansion would incorporate the adjacent site at 23-43 Tattersall Road, Kings Park. The development constituted a SSD because it was seeking to handle more than 100,000tpa of waste. Luke Parker and Morgan Parker signed the landowner's consent section of the SSD application. 2. By letter dated 26 March 2014 the Department sought comment from the EPA in relation to S&P's draft EIS, submitted as part of its application for development consent. 3. On 22 April 2014 the EPA's Unit Head, Waste Compliance, Trevor Wilson, sent the Department a letter providing comments regarding S&P's draft EIS. The letter included comments regarding S&P's hammer mill operation on the site and odour and dust assessments required by the draft EIS. The letter concluded that: We are concerned about the numerous and regular pollution line complaints we receive in relation smoke, odour and dust being emitted from the Premises. The consent conditions negotiated in the Land and Environment Court no longer reflect the way operations are currently conducted on the Premises. The increase in production from 90,000tpa to a possible 360,000tpa is likely to increase pollutants generated by the activity. 1. The Department wrote to S&P on 30 May 2014 advising that a revised EIS was required: …the Department is of the view that the key issues which need to be adequately addressed and/or require the provision of additional information or clarification are the potential air quality, noise and vibration, soil and water and contaminated land impacts of the proposed development. 1. During the course of consultations between the EPA and S&P, the EPA was provided with an emission testing report prepared by EML Air Pty Ltd ("EML") dated 18 June 2014, together with submissions in support of S&P's SSD application prepared by Environmental Resources Management Australia Pty Ltd ("ERM"). 2. ERM, on behalf of S&P, provided a response on 31 July 2014. ERM also provided an Air Quality Assessment Report dated July 2014. That assessment concluded that: The air dispersion modelling results indicated that: … • the maximum predicted 24-hour average PM10 concentration together with the maximum background concentration results in levels that exceed the assessment criteria at the sensitive receptors due to the elevated background ambient air quality concentration in this area; 1. On 28 September 2014 S&P provided the EPA with an emissions testing report by EML and submissions prepared by ERM. 2. On 7 January 2015 ERM provided a response to the Department in respect of submissions that had been received regarding the SSD application. ERM responded to the EPA's concerns regarding: 1. noise and vibration impacts, which the EPA described as excessive and causing offsite impacts. ERM noted that a revised assessment of the noise and vibration impacts established that the vibration levels would comply with EPA guidelines; 2. air quality impacts caused by the hammer mill. The EPA required S&P to provide clarification that the characterisation and emission rates used in the modelling for the wet scrubber were representative of the hammer mill. ERM stated that this had been addressed by the reclassification and relocation of the wet scrubber, including the relocation of the release point; and 3. the potential for pollutants to be emitted from the hammer mill during the shredding process (other than pollutants from the oxy-cutting process). ERM said that the updated EIS indicated that concentrations of toxic air pollutants associated with the hammer mill were below their relevant assessment criteria at all sensitive receptors. 1. The letter from ERM attached an Air Quality Assessment Report dated December 2014 ("2014 Air Quality Assessment") that relevantly concluded that: The air dispersion modelling results indicated that: … • the maximum predicted 24-hour average PM10 concentration together with the maximum measured background concentration results in levels that exceed the assessment criteria at ten of the sensitive receptors due to the elevated background ambient air quality concentration in this area; … • the maximum predicted 1-hour average NO2 concentration together with the maximum measured background concentration results in levels that exceed the assessment criteria at nine of the sensitive receptors; 1. The 2014 Air Quality Assessment also noted elevated iron oxide fumes and manganese concentrations in excess of the assessment criteria at nine site receptors. 2. On 22 January 2015 a further response by ERM in relation to the SSD application was provided to the Department stating that: It is Sell and Parker's intention to comply with all conditions of consent, notwithstanding, any development consent issued will be strictly regulated by the EPA under an EPL, as well as being enforceable by either DP&I and Blacktown City Council. … 2.3 AIR QUALITY …The concentration of toxic air pollutants at sensitive receptor locations for both the oxy-cutting and hammermill operation were generally below the relevant assessment criteria at all sensitive receptor locations. … Odour concentrations at sensitive receptors were generally modelled below the assessment criterion with the exception of two receptors in the industrial estate. … While it is acknowledged that the air quality model reported concentrations of some pollutants (e.g. iron oxide fumes and copper and manganese compounds) above the assessment criterion outlined in the Approved Methods at some industrial area receptors, the exceedances were below the relevant criterion outlined in the Safe Work Australia Guidelines. Given this, it is considered that the emissions from the facility will not impact on the health of workers within the industrial area, and are located a sufficient distance from residential receivers (i.e. approximately 500m) not to cause any exceedances to the EPA Approved Methods. 1. The Department was forwarded a letter from ERM on 24 February 2015, in which ERM responded to matters raised by the EPA with respect to emissions from the hammer mill consequent upon the shredding process. 2. On 20 October 2014 the EPA's then Acting Unit Head, Waste Compliance, Christy Groves, wrote to the Department stating that the EPA was unable to grant General Terms of Approval ("GTAs") in relation to the SSD application because the EIS that had been publicly exhibited did not include all of the information required by the EPA. 3. Subsequently, on 16 February 2015 the EPA's then Unit Head, Waste Compliance, Jacqueline Ingham, wrote to the Department advising that the EPA was unable to grant GTAs in relation to the SSD application until additional information that had been sought in the 26 March 2014 letter from the Department to the EPA was provided and assessed: On 22 April 2014, the EPA provided comments to DP&E requiring that further information be included in the final Environmental Impact Assessment (EIS) regarding potential air, noise and odour issues together with an assessment of the hammermill. This information was requested because of the large number of complaints the EPA received about the facility regarding dust, odour and smoke from the existing operation. EPA held a meeting to discuss this and other air quality issues with the applicant on 15 September 2014… However, the EIS placed on public exhibition on 27 August 2014 did not include all additional information required by the EPA in relation to potential air, noise and odour impacts. … The EPA has reviewed the response and considers it inadequate. The response does not include all additional information required by the EPA in relation to potential air and stormwater impacts. The EPA is therefore unable to grant GTAs until this additional information is provided and assessed. 1. On 22 April 2015 the EPA's Senior Manager, Waste Compliance, Chris McElwain, wrote to the Department, referring to its 26 March 2014 letter and to air quality modelling data that the EPA anticipated receiving. The letter indicated that the EPA would provide a further response to the Department following the EPA's assessment of the data. 2. That same day, the EPA sent the following letter to the Department, which was subsequently provided to Mecone Pty Ltd ("Mecone"), advisors acting for S&P ("the 22 April 2015 letter"): Summary of the EPA position The EPA is of the clear position that the hammermill at the Premises is currently not operating in an environmentally satisfactory manner and improvements are required to prevent ongoing pollution incidents that are occurring at the current scale of processing. As a result, for the reasons set out below and in the attachments, the EPA cannot support the proposed increase in processing unless and until there is a clear, timely and legally enforceable proposal to address these environmental impacts. The proposed development will increase the amount of material being processed per annum by 389%, with an increased rate of processing and an increase of hours of operation, however, there are no improvements to the air polluting process, being primarily the hammermill and the oxy-cutting, have been proposed. Further, Sell & Parker have advised the EPA that the proposed development will breach air quality guidelines, and this means that the proposal will have impacts on the local community. Sell & Parker have outlined a wide range of toxic water contaminants that may enter the stormwater system from the site activities but have failed to adequately characterise them or describe how the impacted water will be treated to mitigate the risk of those contaminants. … Given the long history of poor environmental compliance on the issues referred to above, and the failure to completely address the pollution issues associated with the hammermill, the EPA cannot support a proposal that will clearly impact the local environment and community unless and until these issues are addressed in a clear, timely and enforceable way. 1. That correspondence identified inadequacies in S&P's attempts to address the air and water quality impacts of the SSD application from the EPA's perspective: The EPA considers it unacceptable that, despite the above mentioned written comments and meeting with the applicant to explain the EPAs requirements, the information supplied by Sell and Parker in about the air and water quality impacts of the proposal, has been inadequate. Hence, the EPA has been able to provide General Terms of Approval for the development. … The EPA expressed its opinion that the purpose of that condition was to ensure that the activity would only take place after the expiration of the 20 year time limit by taking advantage of any improved technologies as to prevent and mitigate any impacts on neighbours from hammermilling. … Current operations … Since January 2013 the EPA has received 99 complaints about polluted water, odour, smoke and dust emissions from the facility, with a large majority of these from adjacent industrial premises. During this period the EPA has conducted 33 inspections of the Premises and the surrounding environment. In June 2013 the EPA issued Sell & Parker a Draft Pollution Reduction Program to address the ongoing environmental issues. Sell & Parker advised the EPA that the air pollution issues would be addressed in the proposed development (being the current matter the subject of the application) and, on that basis, the EPA did not finalise the Pollution Reduction Program. … Air Quality Related Issues … The existing facility has an ongoing history of complaints regarding odour, smoke and dust emissions, primarily from adjacent industrial receptors. On 4 February 2015, Sell & Parker filed an appeal for Deemed Refusal of the development against Department of Planning & Environment… … Recommendation Based on existing information including the Air Quality Assessment and operational experience of the existing facility, there is significant risk of adverse air quality impacts unless the proposal is re-designed to include additional adequate air quality controls and management. 1. Attachment 1 to that document noted that: The operational history of the site has shown where identical activities are undertaken at a lesser scale, there are significant air quality impacts. The assessment results for the proposed expansion have also indicated that there is a significant risk of: • Offensive odour impacts offsite; • Adverse impacts due to particulate emissions; and • Adverse impacts due to toxic air emissions. 1. It also noted that while mitigation measures were available to S&P, these measures had not been properly considered in the project design to date. 2. The 22 April 2015 letter is significant insofar as it makes it abundantly clear that the EPA was not satisfied that the hammer mill was operating in an environmentally appropriate manner and that improvements were required to prevent ongoing pollution incidents that were occurring at the current scale of processing. This was especially important given the almost four-fold proposed increase in development capacity by S&P. 3. On 30 June 2015 Mecone provided to the Department a letter attaching revised proposed environmental mitigation measures in a report entitled Waste Metal Recovery, Processing and Recycling Facility Expansion – 45 and 23-43 Tattersall Road, Kings Park, Blacktown – Air Quality Assessment – Sell and Parker Pty Ltd, prepared by ERM and dated 19 June 2015 ("2015 ERM Report"), and another report entitled Waste Metal Recovery, Processing and Recycling Facility Expansion – 45 and 23-43 Tattersall Road, Kings Park, Blacktown – Air Quality Health Risk Assessment – Sell & Parker Pty Ltd, also prepared by ERM and dated June 2015 ("2015 Health Risk Assessment"). 4. The covering letter described the measures S&P had implemented on site to address the EPA's concerns. These included: 1. enclosing all conveyors thereby preventing dust emissions from these sources; 2. proposing to seal the site to eliminate a large source of particulate matter emissions and to reduce the emission of particulate matter; 3. amending the site layout to no longer require trucks to enter the site twice; 4. installing a new ECS above the hammer mill exhaust vent to collect exhaust gases which would be passed through a cyclone and a wet scrubber to reduce particulate content from the exhaust air system and to reduce odorous emissions. After gases have passed through the cyclone and wet scrubber they would be ducted to a central point at the site and emitted by a 15 m high stack to increase vertical velocity and improve dispersion of emissions into the atmosphere; 5. upgrading the shearing equipment and technology to reduce the number of oxy-cutters and their hours of operation; 6. ensuring oxy-cutting only occurs under wet conditions in order to reduce metal fumes and NOX emissions; and 7. the carrying out of additional equipment upgrades. 1. The 2015 ERM Report set out the PM10 annual mean. It noted that 2009 included an extreme dust event and that, therefore, for years where the highest modelled year was 2009, total concentrations in the future for a year with similar meteorological conditions to those in 2009 would be lower. 2. Although not required pursuant to the DGRs, S&P also commissioned the 2015 Health Risk Assessment which concluded that site related emissions were unlikely to result in unacceptable health risks. 3. On 3 July 2015 Ashley Cheong sent an email to Alex Bourne (an EPA officer) requesting that the EPA review and provide comments with respect to further submissions S&P had made on 30 June 2015 regarding its SSD application. Cheong's email included a link to the Department's Major Project Assessments website from which Bourne accessed a letter dated 30 June 2015 from Mecone identifying the following documents: 1. the 2015 ERM Report; and 2. the 2015 Health Risk Assessment. 1. The EPA provided comments to the Department on the proposed ECS on 28 July 2015, noting that it was "generally pleased with the new direction in environmental compliance", but that it required further clarification and updates. Attachment 2 to those comments identified a number of issues that the EPA recommended that S&P address, including the development of an Air Quality Management Plan, with details of the mitigation measures to be implemented on site, including a proposed real time dust management system. On 29 July 2015 the Department forwarded those comments to S&P. 2. S&P sent a letter to the Department enclosing its response to the EPA's latest comments on 13 August 2015. The letter raised concerns regarding possible delay in the feedback process because the EPA Senior Operations Officer with oversight of the matter would be on leave for a month. S&P requested that the Department consider "transferring [the matters raised by the EPA]…from the consent format to the licensing format in order to assist in the assessment of a SSD that was lodged in March 2014 (18 months ago)". 3. On 3 September 2015 S&P provided a revised ERM assessment ("2015 ERM Assessment") detailing how the ECS would operate and setting out the parameters for the stack. 4. On 23 September 2015 the EPA provided the Department with recommended GTAs for the SSD application and informed the Department that it was able to issue a licence for the proposal, subject to conditions. The EPA noted that post-commissioning proof of performance of the air quality control infrastructure had to be completed by S&P prior to any increase in waste receipt or processing at the site. The GTAs relevantly provided that: L5. Waste L5.2 A maximum of 90,000 tonnes of Scrap Metal is permitted to be received at the premises per annum on a weekly pro-rata basis until the Hammer Mill Emission Collection System has successfully passed post commissioning proof of performance trials to the satisfaction of the EPA. … L5.4 Once the Hammer Mill Emission Collection System is fully operational and has successfully passed post commissioning proof of performance trials to the satisfaction of the EPA, a maximum of 350,000 tonnes of Scrap Metal is permitted to be processed at the premises per annum. 1. The Department forwarded the proposed conditions of consent to S&P on 25 September 2015, and responded to questions previously raised by Catherine Maddox, Head of Planning and Business Development at S&P. 2. That same day S&P provided its initial comments regarding the GTAs and the Department provided S&P with draft conditions of consent. 3. On 12 October 2015 S&P emailed the Department proposing substantive amendments to draft conditions A7, A8 and A9 of the consent. 4. The Department published its Secretary's Assessment Report and the draft conditions of consent on its website on 4 November 2015 (for a period of seven days). 5. On 10 November 2015 S&P sent the Department a letter providing a submission to the Secretary's Assessment Report and the draft conditions of consent. The letter referenced S&P's 12 October 2015 email response and draft condition A8. S&P raised the concern that, as drafted, condition A8 would not allow the site to continue current operations because it did not allow S&P to receive or process more than 90,000tpa of waste until it was granted a final occupation certificate ("OC") with respect to the site. 6. On 12 November 2015 the consent was granted. The accompanying Secretary's Assessment Report relevantly stated that: Based on all information provided, the Department has undertaken a thorough assessment of the proposal in accordance with the EP&A Act and concludes that: • the facility would meet relevant air, noise and vibration criteria at sensitive receivers; • traffic generated by the facility can be satisfactorily accommodated on the local and regional road network without any significant impact on safety or level of service; • the expanded facility would provide for improved environmental and operational outcomes, including reduced air and odour emissions, improved on-site stormwater management and water quality impacts; and • the facility would provide a range of environmental and economic benefits for the region, through resource recovery and the provision of long term operational jobs. The proposal is consistent with the NSW Government's direction in achieving the targets of NSW 2021 and the Waste Avoidance and Resource Recovery Strategy. In particular, the proposed expansion of the facility would enable the Applicant to better respond to increasing demands and provide improved safety, environmental, processing and traffic outcomes, while assisting in diverting scrap recyclable metal from landfill. … The proposed development is important to ensure that the Sydney Metropolitan Area's metal waste recycling needs are met, and, in this regard, it is noted that the subject facility is only one of two major scrap metal recycling facilities in the Sydney Metropolitan Area. 1. Ektimo Pty Ltd ("Ektimo") prepared an Emission Testing Report in respect of the ECS (pursuant to the consent) dated 23 February 2016. In addition to the testing of the hammer mill, that Report recorded that: Hammer Mill feed comprised 30% car content Non-compliant sampling plane; the testing precision will be reduced … (1) The sampling plane is deemed to be non-ideal or non-compliant… Comments Hammer Mill feed comprised 17% car content. Hammer Mill feed blacked and operating on idle from 1055 to 1120. Test suspended for that time. Non-compliant sampling plane; the testing precision will be reduced The discharge is assumed to be composed of dry air and moisture. 1. Air Quality Management Plans were submitted to the Department by S&P on 8 April and 20 October 2016. On 10 August and 4 November 2016, respectively, the Department responded to those plans. 2. On 14 April 2016 the Department's Senior Planner, Industry Assessments, Kate Masters, emailed Lesley Corkhill, the EPA's then Unit Head, Waste Compliance, requesting that the EPA review and provide comments with respect to S&P's Air Quality Management Plan dated 8 April 2016 and Noise Management Plan dated 9 April 2016. 3. Corkhill responded to Masters' email on 22 April 2016, providing comments on S&P's plans. 4. On 26 May 2016 S&P surrendered existing development approvals applicable to the site, namely, DA-96-305 dated 27 November 1996 (granted in relation to the establishment of the original metal recycling facility at 45 Tattersall Road) and DA 10204-2000 dated 11 May 2001 (granted in relation to the establishment of the hammer mill and associated components at the same location). 5. In 2016 S&P installed the ECS on the site. 6. On 1 September 2016 S&P provided to the Department a Commissioning Air Quality Assessment by ERM dated August 2016 in relation to the ECS ("2016 Commissioning Report") which included a comparison of stack parameters between those used in the EIS modelling and those as built and measured. There were discrepancies between the two sets of parameters. A comparison of emission concentrations used in the EIS modelling and as built and measured, revealed that while PM10, PM2.5 and zinc were measured at higher emission concentrations than previously modelled, they were still within the overall total suspended particulate limit. 7. The 2016 Commissioning Report went on to note that: 3.1 BUILDING DOWNWASH The hammermill stack has been built to a height of 15 m. The current position of the stack is located adjacent to the hammermill as a temporary measure whilst the remainder of the site re-development takes place. Towards the end of the site re-development, the stack will be moved to the centre of the site as originally planned. Atmospheric dispersion modelling has been undertaken using the temporary position of the stack, adjacent to the hammermill. As this location is closer to the site boundary than the ultimate site design, this represents a worst-case location for the stack. 1. The Report concluded that: 6 CONCLUSION An air quality assessment has been undertaken following an expansion and increase in the approved handling capacity of Sell and Parker's existing waste metal recovery, processing and recycling facility at Blacktown, New South Wales. The expansion of the Site included the installation of a waste gas treatment system for the hammermill. Testing of the waste gas treatment system stack determined that in comparison to the atmospheric dispersion modelling undertaken as part of the EIS: • the stack was positioned in its temporary location adjacent to the hammermill; • emissions parameters of the stack were different; and • emission concentrations of compounds emitted form the stack were different. … The air dispersion modelling results indicated that: … • the maximum predicted 24-hour average PM10 concentration together with the maximum measured background concentration (level 1 assessment) results in levels that exceed the assessment criteria at ten of the modelled sensitive receptors. In the case of eight of those receptors this is due to maximum background value substantially exceeding the assessment criterion… The additional exceedances of the PM10 24 hour standard are minor… Given that additional exceedances occur up to 3 days out of five years, the frequency of these events is also very small. Sell & Parker will install an ambient air quality monitoring system as part of their site environment management plan by 30 September 2016 in accordance with the Environmental Protection Licence. The management plan requires that where measured the ambient dust measurements indicate exceedance of the criterion, operations will reduce or cease. The monitoring data will be provided on the Sell & Parker website and directly to the EPA on request. 1. On 13 October 2016 the EPA emailed Mazz Appleton, from the Department, regarding the 2016 Commissioning Report in the following relevant terms: The Assessment report shows that the construction of the Emissions Collection System (ECS) has not yet been constructed to the DP&E approved design criteria. Rather has been installed as an interim measure while the reminder of the site is being redeveloped. It appears that the interim ECS as built is different to what was approved by DP&E… While there is construction QA/QC value in assessing the interim ECS, the EPA is of the opinion that the Commissioning Assessment provided is premature and shouldn't be used to validate the performance of the final ECS, which has not yet been built accordance to design specifications. As such the EPA considers the Assessment inadequate for the purposes of meeting the requirement of consent condition B21 and recommends DP&E require Sell & Parker to conduct and submit a Commissioning Report following the completion of construction of the final ECS. The EPA acknowledges the levels of air emissions meet the concentration limits in the Environment Protection Licence for the discharge point. However, the Total Solid Partial result of 19mg/m3 is approaching the licensing limit of 20mg/m3. Noting the above, the EPA has conducted a brief review of the Assessment raises the following concerns: • There are exceedances of predicted Particulate Matter; • There are exceedances of predicted Zinc; … While the EPA will continue to provide advice to DPE, the EPA's main regulatory focus is on compliance with the licence (Environment Protection Licence No. 11555). Throughout the assessment of the SSD-5041, DP&E sought the expertise of an independent air quality expert, Alex Toderoski. DP&E may wish to engage Mr Toderoski to provide more detailed expertise in relation to assessing the Commissioning Report/s. … As per the previous comments provided by the EPA, our focus is on whether the EMPs reflect the requirements of the Environment Protection Licence 11555 (EPL) issued to Sell & Parker for the premises. The EPA does not approve or endorse management plans, and are merely reviewing and providing comment to assist DP&E. 1. On 18 October 2016 Appleton sent an email to S&P stating that the Department did not accept the 2016 Commissioning Report because the study was carried out on the stack which was not situated in its approved location. The stack was also not designed based on the parameters modelled in the SSD application. Appleton noted that the Department agreed with the EPA's concerns regarding the 2016 Commissioning Report, which included that: • There are exceedances of predicted Particulate Matter; • There are exceedances of predicted Zinc; • The Particulate Matter results do not appear comprehensive and additional undocumented exceedances may occur; • The 'as built' stack parameters are significantly different to what was originally modelled for the development application… • Inadequate details are provided about plant operating conditions at the time of testing the interim ECS. An estimate of the operating capacity and process rate of the hammermill at the time of the samples, and an explanation of how the estimate was arrived at, is necessary to support the conclusions in the Assessment; and • The Limit of Reporting is greater than the predicted analyte concentrations used in the modelling. 1. Appleton concluded by stating that: In light of the concerns outlined above, The Commissioning Air Quality Assessment will need to be redone when the stack is located in the approved position with the issues as outlined above addressed. 1. Subsequently, S&P submitted another Air Quality Management Plan (prepared by Higgins Planning, dated March 2017) to the Department. On 7 July 2017 the Department approved that Plan and other environmental management plans, subject to certain amendments. 2. The consent permitted a reconfiguration and increase in the receipt and processing capacity of the original facility at 45 Tattersall Road, Kings Park to 23-43 Tattersall Road, Kings Park ("the development"), subject to certain conditions (quoted earlier in the judgment). The Department's Site Inspection on 20 September 2016 1. On 15 September 2016 the Department's compliance officer, Anthony Pizzolato, emailed Maddox, copying in Chase Dingle (another Department compliance officer) and Bourne, informing S&P of the Department and the EPA's intention to carry out a site inspection on 20 September 2016 for the purpose of assessing compliance with the consent: The Department is interested in a general introduction of the site, with the view of: — Understanding how Sell and Parker are tracking with the conditions of the development consent and submission of relevant management plans; and — Ascertain whether any development has commenced on the site. … Also, can you please ensure that the relevant persons whom are authorised to make representations are available on the day. 1. Later that day, Maddox responded confirming the time, attendees, and requirements for the site inspection. 2. In the week commencing 12 September 2016, S&P engaged Lloyd's Register Quality Assurance Limited ("Lloyd's") to conduct an independent environmental audit of its operations at the site and to provide a report in conformity with condition C9 of the consent. 3. On 17 September 2016 Paul Dzamko from Lloyd's emailed Bourne advising him that Lloyd's had been engaged by S&P to prepare the audit and requesting certain information from the EPA. The email attached a letter from the Department dated 28 July 2016 and an independent audit team approval. 4. Appleton emailed the EPA's Waste Operations Unit on 19 September 2016, requesting that it review and provide comments on the 2016 Commissioning Report. Appleton's request was referred to Bourne, who reviewed that Report in consultation with the EPA's Air Technical Advice Branch. Corkhill also reviewed the 2016 Commissioning Report. 5. On 20 September 2016 Dingle and Pizzolato conducted an inspection of the site in conjunction with EPA officers, Bourne and Sam Preston-Stanley ("20 September 2016 site inspection") to determine whether development had occurred on the site otherwise than in accordance with the consent. Luke Parker, Maddox and Howard Richards, the Group Environment Manager of S&P, also attended the 20 September 2016 site inspection. 6. The inspection commenced with an initial meeting, during which S&P representatives discussed the background and current status of the development on the site. A walk-around and inspection of the operations then took place. 7. There was a subsequent meeting with the same persons present (that is, the 20 September 2016 site inspection meeting). According to Pizzolato (as deposed to in his affidavit affirmed on 20 December 2014) during that meeting Luke Parker said the following words: Sell & Parker are currently processing around 4,000 tonnes per week. To be blunt, we were over the 90,000 threshold at the time the application was lodged with the Department. Sell & Parker were processing 4,000 per week then just over 200,000 tonnes per year. The reason Sell & Parker put in the DA application was because Sell & Parker was exceeding previous processing limits. If you want Sell & Parker to slow down processing to the 90,000 tonne limit Sell & Parker will comply and lay off 50 staff in the process. 1. Because of the importance of what was said and by whom at the 20 September 2016 site inspection meeting, the meeting is discussed in detail below. Events After the 20 September 2016 Site Inspection and Meeting 1. On 22 September 2016 Kelly McNicol from the Department sent a letter to Maddox in relation to a draft Construction Environment Management Plan submitted by S&P. The letter stated that: I refer to our telephone conversation on Friday 9 September 2016 when it was conveyed to you that the Environmental Management Plans (EMPs) being submitted by Sell and Parker have been inadequate, requiring significant revision and input by staff at the Department… and the Environment Protection Authority. It was also communicated that should we receive any further EMPs that require significant work that we would return the document and request that a suitably qualified and experienced person(s) undertake the EMPs. A draft Construction Environment Management Plan (CEMP) was submitted by Sell and Parker on 19 September and on a brief review of the document based on, but not limited to C1. Of Development Consent SSD 5041, the document was deemed to be deficient in the following areas: … the document does not set out the environmental management practices and procedures to be followed during construction in a logical or coherent manner. It is suggested the management practices and procedures during construction be set out under specific bolded headings such as traffic management, noise and vibration management, dust and emissions management, potential hazards/incidents associated with construction etc. Include all relevant reasonable and feasible mitigation measures to protect the amenity and surrounding environment during construction… As previously explained, the department does not have the capacity or resources to continually review deficient management plans. It is recommended that you obtain the services of a suitably qualified and experienced person to prepare the CEMP and any other management plans required to be submitted to the Department. 1. The EPA emailed Pizzolato on 28 September 2016 in respect of the 20 September 2016 site inspection and meeting. The email did not mention Luke Parker's statement that S&P would lay off 50 staff in order to comply with the condition A8 of the consent or the Departmental response. 2. On 13 October 2016 Bourne emailed Appleton setting out the EPA's comments following its review of the 2016 Commissioning Report. 3. On 14 October 2016 Bourne emailed Dzamko responding to his email of 17 September 2016, attaching two documents and copying in representatives of S&P and the Department. The first document contained responses to Dzamko's request for information in the following terms: On 20 September 2016 officers from the EPA and Department of Planning & Environment ("DP&E") inspected the Premises. The EPA is concerned that the development may not be in compliance multiple conditions of SSD-5041, and therefore also in potential breach of multiple conditions of EPL 11555. In summary the EPA's concerns include: • Construction, commencement and escalation of site activities without: • the required construction certificate. • environmental management plans approved by the DP&E potentially in breach of SSD 5041 Conditions B4, B17, B29 and C1. • environmental management controls in place, in particular, controls to manage air quality emissions and stormwater pollution. This may be in breach of SSD-5041 Conditions B5, B6, B7, B18, B30 and C2 and potentially in breach of EPL 11555 Condition E1.1. Note: The conceptual stormwater management plans have varied from the design as approved in SSD-5041 and not yet been decided by Sell & Parker or reviewed by the EPA. • Air quality (PM10) dust monitoring in place required by EPL11555 Condition O3.5 by 30 September 2016 and by SSD 5041 Condition B17e. Note: The EPA's Environment Line regularly received complaints about emissions from Sell & Parker impacting air quality. • Advice from Sell & Parker is that it is currently exceeding the permitted thresholds of scrap metal received and processed at the Premises in breach of Development Consent SSD-5041 Conditions A8a and A8b in breach of EPL 11555 Conditions L3.2a, L3.2b, L3.3a, L3.3b, L3.5; • Excavations that encountered groundwater for the construction of a bailer within the northern building on the expansion site have occurred. The EPA is unaware of whether Sell & Parker have complied with SSD-5041 Conditions B12a, B13b and B13C in relation to the excavation work. 1. The second document attached his meeting report. It relevantly stated that the following representations were made by Luke Parker and Richards at the 20 September 2016 site inspection meeting: • Sell and Parker are currently processing 4000 tonnes per week. Prior to the new consent being issued Sell & Parker were processing 4000 per week. (this equates to 208,000 tonnes per annum far in excess of the 90,000 tonnes per annum threshold). The reason Sell & Parker put in DA application was because Sell and Parker was exceeding previous processing limits. Sell & Parker are currently exceeding the 90,000 tonne limit. (LP) • If you (EPA and DPE) want Sell & Parker to slow down processing to the 90,000 tonne limit Sell & Parker will comply and lay off 50 staff in the process. (LP) • The shredder (Hammermill) was and is running at 100% capacity. (HR) 1. Bourne noted in his report that the following concerns were raised by the Department and the EPA at the meeting: • I raised concern that the expansion site was in operation and Sell & Parker do not have the stormwater management system implemented or even a concept decided upon. I expressed my opinion that planning to flood the yard with contaminated stormwater, now with a much larger catchment area would present an increase environmental and operational risks. … • I (and DP&E) raised concern that Sell & Parker were operating without the management plans being approved by DP&E and the plans that have been reviewed have been found inadequate. … During the meeting DP&E raised concern that development was commencing and site activities were occurring without a construction certificate and also in breach of multiple conditions of consent including the threshold limits. CM stated that a construction certificate was not required for demolition or the installation of plant and received that advice from their certifier Dean Morton. DP&E stated that the requirement for a construction certificate for demolition was clearly defined in the approved development consent. Lloyd's Independent Audit 1. Lloyd's conducted its independent environmental audit and provided its report to S&P on 13 November 2016 ("Independent Audit Report"). The Independent Audit Report noted that (footnotes omitted): EPL waste limit of 90,000 tonnes is being exceeded without the specifically required approval of the Emissions Collection System. 1. It concluded that: Based on activities and records sampled, the IEA Team found that the Development, at this stage, is non-compliant with a range of conditions in both the Development Consent 5041 and the Environment Protection License EPL 11555. This is primarily due to development activities being initiated prior to the relevant approvals of the Construction Environment Management Plan and connected sub-plans. The works thus far are more than what could be considered only preparatory; in particular, it is noted that EPL waste limit of 90,000 tonne is being exceeded without the specifically required approval of the Emissions Collection System. Also, the current (albeit temporary) expanded site water run-off to Breakfast Creek is not approved. It is noted that the various management plans (some revised) have been submitted to the DPE and that an ECS Commissioning Report has also been submitted – none were formally approved / accepted at the time of this IEA. It is also noted that there is a transition water run-off plan (via existing retention basin) that was stated to be scheduled in approx. 6 weeks. 1. And it found that: There were a total of 14 individual non-compliances (NCs) with Consent Conditions: • High Risk (9): A1, A2, A7, A8, B17, B18, B19, C1, C2 • Medium Risk (3): B20, B29 • Low Risk (3): B10, B13, B39 1. With respect to environmental performance the Independent Audit Report stated that: With the number and range of NCs identified, the environmental performance of the development thus far observed is inadequate. Amongst the range of NCs, of immediate concern is the waste limit exceedance with lack of acceptance / approval of the ECS and the water run-off from the expanded site. 1. The audit findings log of the Independent Audit Report recorded various non-compliances. Appendix 1, the consent compliance table, identified that conditions A7 and A8 of the consent had been contravened as follows: LIMITS OF CONSENT Waste Limits Sell and Parker Management advised (email 31st October 2016) that the facility is exceeding the EPL limit of 90,000 tonnes per calendar year (on a weekly pro rata basis) but below the 350,000 tonne limit once this Development is fully completed. Non-compliant A7 The Applicant shall not receive or process on the site more than 350,000 tonnes per calendar year of waste, subject to Condition A8. The EPA Return (2015 / 2016) C2 specified that the scale of activity on the premises exceeded volume prescribed. See also comments in A8 below. High Risk It is acknowledged that the purpose of this Development is to increase the licensed limit to 350,000 tonnes per calendar year. Despite Condition A7, the Applicant shall not receive or process on the site more than 90,000 tonnes per calendar year of waste (on a weekly pro rate basis) until: The IEA auditors were advised that that license limit of 90,000 tonnes per calendar year (on a weekly pro-rata basis) is being exceeded and: Non-compliant A8 a) The Emissions Collection System for the hammer mill has been commissioned in accordance with Condition B20 and approved by the Secretary for operation; and • The ECS (which is operational) has not been approved by the Secretary (reference DPE email 18th October 2016 stating that the Commissioning Air Quality Statement undertaken by ERM August 2016 was not accepted by the Department as meeting Consent requirements High Risk b) a Final Occupation Certificate has been issued for the Development. • A Final Occupation Certificate has not been issued 1. It noted that "the facility is processing in excess of the EPL limit of 90,000 tonnes per calendar year". This was identified as a "Non-Compliant High Risk". 2. With respect to condition B19 relating to air emissions mitigation, Lloyd's identified as a "Non-compliant High Risk" that: • The ECS has not been approved by the DPE / EPA as meeting the design criteria in the development application and does not appear to be operating as per the design that formed the basis of the modelling. • Facility is processing above EPL limit without ECS approval. 1. Additionally, with respect to the ECS commissioning required by condition B20, Lloyd's identified as a "Non-compliant Medium Risk" that: The Commissioning Air Quality Assessment (ERM August 2016) was submitted to the DPE. The DPE / EPA determined that the ECS does not meet the approved design criteria. DPE / EPA responses (as detailed in a DPE email 18th October 2016): • The current ECS status is an interim measure while the remainder of the site is being developed • Recommended that a Commissioning Report is submitted the completion of construction of the final ECS (built in accordance to design specifications) The DPE response stated that the EPA acknowledges the levels of air emissions meet the concentration limits in the EPL for the discharge point, nonetheless other concerns were raised that need to be addressed. Note: the IEA Team has interpreted this to be a commissioning against design criteria (unless otherwise approved by DPE / EPA). 1. The Independent Audit Report noted that Luke Parker was interviewed by Lloyd's for the purpose of the audit. 2. The Independent Audit Report was provided to the Department by S&P on 28 November 2016, alongside a document containing S&P's response to it, as required by condition C10 of the consent. Further Site Inspection on 23 March 2017 1. On 23 March 2017 the Department's compliance officers, Dingle and Jai Donnelly, conducted a further inspection of the site, together with EPA officers, Bourne and Kathy Falconer. Dingle observed: 1. the operation of the 1,400t shearer on the expansion site; 2. the same area in use for the sorting and storage of scrap metal; and 3. that some buildings had been demolished. Development Control Order 1. On 23 June 2017 the Minister for Planning notified Luke Parker that he intended to give him, as the person entitled to act with respect to the consent, a development control order pursuant to s 121B of the EPAA requiring S&P to: 1. ensure that there was no discharge of water from the site until the Water Management System had been commissioned in accordance with condition B7 of the consent; 2. store all chemicals, fuels and oils used on-site in appropriately bunded areas in accordance with the relevant Australian Standards and relevant EPA manuals in accordance with condition B10 of the consent; and 3. commission the ECS for the hammer mill in accordance with the requirements of condition B20 of the consent, and submit a Commissioning Report in accordance with the requirements of condition B21 of the consent. 1. On 20 July 2017 S&P responded to the proposed development control order and stated the following in respect of the ECS: Proposed Order No. 15 … Item 5 – Emissions Collection System The Emissions Collection System (ECS) has been commissioned. A initial Commissioning Report was provided to the Department on 1 September 2016. A further Commissioning Report by Ektimo… was provided to the Department in May 2017, and again on 5 July 2017, and confirms that all tested pollutants are below the limits prescribed by the Protection of the Environment Operations (Clear Air) Regulation 2010. It is acknowledged that the location of the stack for the ECS is not currently in accordance with the location contemplated in the Development Consent. Sell & Parker cannot construct the stack in its final location, nor the necessary piping to connect the stack to the ECS, until it obtains a construction certificate. As noted above, Sell & Parker cannot obtain a construction certificate until the WMP is approved. Prior to constructing the ECS, Sell & Parker discussed the design of the ECS with the EPA. The EPA agreed to the ECS being commissioned with the stack in its current, temporary location, since this was preferable to delaying the commissioning of the ECS altogether until the stack can be constructed in its final location. Other than the location of the stack, the design and configuration of the ECS is consistent with the approved design. We confirm there will be no further changes to the design of the ECS as a result of moving the stack to its final location. 1. The Department replied on 4 August 2017, stating that: Agree, on the condition that Sell & Parker construct the stack in its final location, including the necessary piping to connect the stack to the ECS, within 4 weeks of obtaining a construction certificate for the works. Furthermore, Sell Parker undertake to commission the Emissions Control System in accordance with Schedule 2, Condition B20, within 2 weeks of construction of the stack in its final location. Modifications to the Consent 1. On 6 July 2017 a modification of the consent was granted. The modification included amendments to the site layout, the design of buildings and structures, and alterations and additions to existing buildings and structures. The modification did not affect conditions A7, A8, A9 or B21 of the consent. 2. On 26 February 2018 a further modification was granted which included minor amendments to the western acoustic wall, entry weighbridge arrangements, and alterations and additions to existing buildings and structures. Again, this second modification did not affect conditions A7, A8, A9 or B21 of the consent. Approvals Under Condition A8 of the Consent 1. A final OC was issued to S&P pursuant to condition A8(b) of the consent on 27 August 2018. 2. On 19 October 2018 S&P submitted a further Commissioning Report prepared by ERM dated 18 October 2018 to the Department. That Report confirmed that S&P had constructed the ECS stack in its final location. The air quality performance of the system had been tested by Ektimo at this location. The Report concluded that: From an air quality performance perspective, the Hammermill ECS has been commissioned in accordance with Condition B20 of development consent SSD 5041. 1. On 29 November 2018 Ritchie, as delegate of the Secretary of the Department, approved for operation the ECS for the hammer mill pursuant to condition A8(a) of the consent. Section 119 Notices 1. On 17 April 2015 the EPA wrote to Luke Parker attaching a notice to provide information and records under s 119J of the EPAA, including the amount (in tonnes) of scrap metal received and processed at the site each month. The covering letter noted that, "the [EPA] is currently investigating the scale of the Licensee's activity". The notice was in these terms: Licence Condition A1.2 states "Unless otherwise further restricted by a condition of this licence, the scale at which the activity is carried out must not exceed the maximum scale specified in this condition." The Fee Based Activity of Scrap metal processing has a scale of 0-100,000T processed. 1. Richards responded on behalf of S&P on 31 July 2015, attaching the requested information. 2. On 1 December 2016 Pizzolato emailed Maddox in the following terms, attaching another s 119J notice to furnish information and records: Thanks for taking my call today. As per our conversation, the Department is investigating Sell and Parker operations at its Kings Park site with regard to Development Consent SSD 5041. As part of its investigation, the Department has issued the attached notice (also via post) for Sell and Parker to furnish information and records as outlined in the attachment. 1. Relevantly, the s 119J notice stated that: 6. The Department is also investigating whether Sell and Parker is complying with the limit on receiving and processing waste limits in place for the 2016 calendar year. Condition A8, Schedule 2 of the consent requires Sell and Parker to process or receive no more than 90,000 tonnes per calendar year of waste until the Emissions Collection System for the hammer mill has been commissioned and approved and a Final Occupation Certificate has been issued for the development. At the date of this notice, the Emissions Collection System for the hammer mill has not been commissioned or approved. 7. It is an offence under ss76A(1)(b) and 125 of the Act for a person to carry out development other than in accordance with the conditions of development consent. 8. The Department considers that additional information and records are required to assist in determining whether development at the Site was carried out in accordance with the conditions of the development consent. 1. The information requested included: Details of the quantity of waste received and processed at the premises (in tonnes) for each day of the 2016 calendar year up to the date of this notice as follows: a) The quantity of waste received; b) The quantity of waste possessed; c) A tally of the total waste received for the year to date; and d) A tally of the total waste processed for the year to date. 1. However, on 13 January 2017 Dingle emailed Maddox attaching a letter revoking the previous s 119J notice emailed on 1 December 2016, and issuing a further notice dated 13 January 2017, which was in substantially similar terms. The notice requested all records showing the total waste received and sold for the 2016 calendar year. 2. Another s 119J notice was issued to Luke Parker in substantially similar terms on 21 April 2017. 3. On 27 April 2017 Luke Parker responded attaching a spreadsheet setting out the incoming and outgoing quantities of waste from the site. The spreadsheet recorded a yearly total of 298,859.036t of incoming waste and 302,304.383t of outgoing waste. The document acknowledged that the "total waste limit without ECS approval" was 90,000tpa. 4. By way of notices issued pursuant to s 119K(3) of the EPAA, Luke Parker, Richards and Ian Mace were required to answer questions and to provide information in relation to the Department's investigation regarding potential contraventions of the consent. 5. Richards and Mace attended the Department's premises on 22 May 2017, pursuant to the s 119K(3) notices. Luke Parker was interviewed at the Department's offices on 23 May 2017. 6. On 6 November 2017 in response to a s 119J notice issued by the Department for: 1. a summary of the amount of weekly revenue related to the waste received and processed on the site from 22 May 2016 until the date of the notice; and 2. financial records for the operation of the site including the disclosure of the amount of revenue raised by S&P from the waste received and processed at the site over the relevant period, including other products created from the processing of waste, S&P provided a spreadsheet setting out the docket number, date and net weight of deliveries and dispatches of material to and from the site between 26 May 2016 and 22 October 2017. 1. By s 119J notice issued on 30 January 2018, Thomas Minchin, an investigation officer with the Department, sought S&P's financial records disclosing S&P's revenue from waste received and processed at the site from 26 May 2016 to 22 October 2017. 2. On 15 February 2018 S&P informed Minchin that it was declining to furnish its financial records in response to that s 119J notice, contending that the notice was invalid because the records were not relevantly in connection with an investigation purpose as required by s 119J of the EPAA. 3. On 12 March 2018 the Department informed S&P that it had determined not to withdraw the 30 January 2018 s 119J notice and re-issued the notice to enable S&P additional time to respond to it. 4. On 26 March 2018 S&P again informed investigators that it considered that it was not required to comply with the latest s 119J notice. The Department did not enforce compliance with the notice. The Breaches of the Consent 1. Between 26 May and 31 December 2016, S&P received 195,386.751t of waste in scrap metal at the site. Therefore, in that period S&P received 105,386.751t of waste in excess of the limit of 90,000tpa imposed by condition A8 of the consent. This exceedance is the subject of the 2016 offence. 2. Between 1 January and 23 October 2017 S&P received 268,645.476t of waste in scrap metal at the site. Accordingly, in this period, S&P received 178,645.476t of waste in excess of the limit of 90,000tpa imposed by condition A8 of the consent. This exceedance is the subject of the 2017 offence. 3. Prior to 29 November 2018, no ECS for the hammer mill had been approved by the Secretary, as required by condition A8(a) of the consent and no final OC had been issued for the development, as required by condition A8(b) of the consent. Prosecutor's Evidence 1. In addition to two statements of agreed facts, the prosecutor relied upon the notes taken by officials regarding the 20 September 2016 site inspection meeting, the records of interview ("ROI") of Richards and Luke Parker, and affidavits deposed by the following witnesses: 1. Ritchie, affirmed on 14 January 2021 ("Ritchie affidavit"); 2. Bourne, affirmed on 12 January 2021 ("Bourne affidavit"); 3. Dingle, sworn on 10 July 2018 ("first Dingle affidavit"); 4. Dingle, sworn on 13 January 2021 ("second Dingle affidavit"); and 5. Pizzolato, affirmed on 24 December 2020 ("Pizzolato affidavit"). The Evidence of Ritchie 1. In his affidavit Ritchie deposed to the fact that he is the Director, Industry Assessments at the Department. In his role Ritchie is routinely involved in the assessment and approval of: 1. applications for development consent made to the Department under the EPAA, including in relation to SSDs; and 2. applications to modify existing development consents, including in relation to SSDs. 1. Ritchie also deposed to the history of the site's air quality, the operation of the hammer mill, and related compliance matters after the granting of consent. 2. Ritchie was cross-examined on his level of involvement in the assessment of S&P's SSD application and S&P's compliance with the consent once granted. Ritchie agreed that he was not directly involved in the assessment of the SSD application but stated that he had oversight of staff who were and that he would have ensured that any assessment report was "appropriate". With respect to his involvement with the consent after it was granted, Ritchie described his role as "delegatory" (T33:10-25). 3. Ritchie could not recall if he attended internal Departmental meetings regarding the consent after it was granted but stated that he "probably did" (T33:27-31 and 33:41-43). Investigation and enforcement would have been undertaken by the compliance team which was in a separate part of the Department (T33:33-39). 4. Neither Dingle nor Pizzolato reported to Ritchie during the relevant period. Appleton, however, did (T34:09-16). 5. Ritchie was also questioned about his awareness of the Department's protocols with respect to record keeping. While he agreed that such protocols existed, particularly with respect to meetings between the Department and the holder of an SSD consent, he could not identify them (T36:01-20; 41-50 and 37:43-47). 6. Ritchie could not recall specific details concerning whether his team had liaised with the Department's compliance team in relation to the consent or the 20 September 2016 site inspection (T38:04-25 and 39:19-27). He nevertheless agreed that notes should have been taken during that inspection and meeting (T39:01-06). 7. Ritchie could also not recall if he was made aware of the terms of any conversation between Luke Parker and Department officials at the 20 September 2016 site inspection (T40:29-41:08). 8. Nor could Ritchie recall whether he had attended any meeting during which Pizzolato was present where there was a discussion of enforcement action against S&P, although he conceded that he "probably" did attend one such meeting (T41:29-43 and 42:18-24). In any event, while Ritchie's team was the appropriate authority to relieve an applicant of a requirement imposed by a condition (T44:40-45:03), it was the compliance branch of the Department that would have made the decision whether or not to prosecute S&P (T42:30-43). The Evidence of Bourne 1. Bourne is the EPA's Senior Operations Officer and has held this role from 2013 to the present day. 2. In his affidavit Bourne deposed that he was aware that the Department could request the EPA to provide GTAs in relation to proposed SSDs. From time to time, the Department requested the EPA's assistance by way of the provision of comments regarding environmental assessments, Secretary's environmental assessment requirements, recommended conditions of consent, and terms of approval in relation to development applications. 3. Bourne attended the 20 September 2016 site inspection with Preston-Stanley, Dingle and Pizzolato. According to him, Luke Parker, Richards and Maddox (representing S&P) were also present. 4. Bourne attended several meetings at the commencement and conclusion of that inspection. During one of those meetings he recalled the following conversation: Luke Parker said: "Sell and Parker are currently processing 4000 tonnes per week. Prior to the new consent being issues Sell & Parker were processing 4000 per week. The reason Sell & Parker put in DA application was because Sell and Parker was exceeding previous processing limits. Sell & Parker are currently exceeding the 90,000 tonne limit". Howard Richards said: "The hammermill shredder has been and is running at 100% capacity". Luke Parker said: "If you want Sell & Parker to slow down processing to the 90,000 tonne limit, we'll comply and lay off 50 staff in the process." I said: "I am concerned that the expansion site is in operation and Sell & Parker do not have the stormwater management system implemented or even a concept decided upon… I am concerned that Sell & Parker are operating at that capacity without the management plans being approved by DP&E and the plans that have been reviewed have been found inadequate." 1. The management plans that he was referring to were environmental management plans addressing landscape, noise, vibration, air quality, water management, construction, and environment management issues. 2. He went on to depose that the following statements were made during the 20 September 2016 site inspection: One of the Department representatives said: "We share that [sic] same concerns. We are also concerned that development has commenced and site activities are occurring without a construction certificate and also in breach of multiple conditions of consent including the threshold limits." Catherine Maddox said: "A construction certificate is not required for demolition or the installation of plant and we received that advice from our certifier Dean Mortan." One of the Department representatives said: "The requirement for a construction certificate for demolition is clearly defined in the approved development consent and we are also concerned that building modifications subject of the s96 application have already been completed without consent." 1. Bourne took notes on a tablet during the 20 September 2016 site inspection meeting. Bourne's contemporaneous notes of the meeting were as follows: noted storage at height currently processing 4000 tonnes previously processing 4000 per week. put in DA because exceedingnumber [sic]. currently exceeding 90,000. LP: if want to slow down to 90,000 tonnes lay off 50 and shut site off. HR: shredder cant run any faster. 1. He used these notes to draft a report regarding the 20 September 2016 site inspection later that day, which he finalised in late October 2016. 2. Bourne accepted in cross-examination that he had a vague recollection that around April 2015, S&P indicated to the EPA that it was operating above the 90,000tpa limit (T180:40-46). He could not recall, however, if he brought this to the attention of any officers of the Department prior to the 20 September 2016 site inspection meeting (T181:01). 3. Bourne was cross-examined regarding his inspection report (T172:23-25). He confirmed that the report was edited by Corkhill sometime after its creation, although he thought that Corkhill made only one edit to it (T173:34-49). 4. Bourne also provided evidence that his 20 September 2016 site inspection report was not a sequential account of what occurred (T176:29-42 and 177:05-29). The Evidence of Dingle 1. In his first affidavit Dingle deposed that at the relevant time he was employed by CMOC Northparkes Mines. Prior to this, Dingle was employed as a Team Leader, Compliance in the Department's Metropolitan Region office based in Sydney. Dingle commenced this role in March 2015. 2. On 27 January 2016 Dingle was appointed as a Departmental Investigation Officer for the purpose of the EPAA. 3. On 20 September 2016 Dingle, Pizzolato, Preston-Stanley and Bourne conducted a joint inspection of the site for the purposes of assessing compliance with the EPL and the consent. The officers attended the site at 10.30 am that day and were granted access by Maddox, Richards and Luke Parker. 4. The 20 September 2016 site inspection commenced with a meeting at which S&P officers discussed the current status of the development on the site. A walk-through of the site and a further meeting then took place (the 20 September 2016 site inspection meeting). Dingle deposed that Luke Parker said these words at the second meeting: a. "Sell & Parker are currently processing 4000 tonnes per week. Prior to the new consent being issued Sell & Parker were processing 4000 tonnes per week. The reason Sell & Parker put in DA application was because Sell & Parker was exceeding previous processing limits. Sell & Parker are currently exceeding the 90,000 tonne limit." b. "If the EPA and the Department want Sell & Parker to slow down processing to the 90,000 tonne limit Sell & Parker will comply and lay off 50 staff in the process." 1. Dingle also deposed that during the site inspection Richards said: a. "The Emission Collection System has successfully been commissioned and the commissioning report was sent to the Department approximately one month ago." 1. Dingle's contemporaneous handwritten notes of the 20 September 2016 site inspection meeting record: about 4,000 tonnes/week…significantly above 90,000 tonnes…acknowledged by themselves. Using the new site for operations in last (6) weeks. 1. The second Dingle affidavit concerned the discussions that took place between those in attendance at the 20 September 2016 site inspection. At the time that he swore this affidavit, Dingle was employed as a Sustainability Manager for Aurelia Metals. 2. In that affidavit, he further deposed that at the end of the 20 September 2016 site inspection there was a meeting attended by himself, Luke Parker, Preston-Stanley and Bourne. During the course of the meeting he had a conversation with Luke Parker. He did not recall the specific words used but deposed that the conversation was in the following terms: Luke Parker said: "Sell & Parker are currently processing 4000 tonnes per week. Prior to the new consent being issued Sell & Parker were processing 4000 tonnes per week. The reason Sell & Parker put in DA application was because Sell & Parker was exceeding previous processing limits. Sell & Parker are currently exceeding the 90,000 tonne limit." "If the EPA and the Department want Sell & Parker to slow down processing to the 90,000 tonne limit Sell & Parker will comply and lay off 50 staff in the process." I said: "the Department is primarily here today to discuss your compliance with your conditionally approved State Significant Development." 1. During the course of the 20 September 2016 site inspection Dingle took brief notes in his field handbook. 2. In cross-examination Dingle accepted that his role, to a "large degree", involved supervising compliance officers in the Department Compliance team who were tasked with assessing compliance with consents (T69:27-50). 3. Dingle confirmed that prior to the 20 September 2016 site inspection he had a discussion with Pizzolato and Bourne, during which Bourne described his observations from previous inspections of the site (T67:12-32). Dingle did not recall this discussion in detail, and in particular, did not recall whether Bourne told him that S&P was already exceeding the 90,000tpa limit imposed by the consent (T67:39-49). Dingle also could not recall if he was aware of S&P's contravention of the 90,000tpa limit or whether S&P had already disclosed this fact to the EPA prior to the 20 September 2016 site inspection (T69:39-50, 70:01-04 and 70:10-14). 4. Dingle initially indicated that he understood Luke Parker's statement at the 20 September 2016 site inspection meeting to be an offer, to the effect that S&P would comply with the 90,000tpa limit and would lay-off 50 staff in the process, but that it was not his role to comment upon it (T75:12-15): Q. And you understood he was making an offer to do just that, namely, to slow down processing, to comply with the 90 thousand tonne limit. A. Correct, but I also understood that it was not my function in the department to grant any statement on such offer. 1. Later, however, Dingle said that he did not understand Luke Parker's statement to be an offer (T77:21-33, 78:03-23 and 80:31-35): Q. Mr Dingle, you understood full well when Mr Parker told you that if the EPA and the department wants Sell & Parker to slow down processing to meet the 90 thousand tonne per annum limit, that Sell & Parker would comply, and lay off 50 staff in the process that that was a very significant matter. You understood that didn't you? A. Yes. Q. Because here was a director of a company, having admitted breaching a quantitative limit, and indicating that the company would be prepared to comply, but notifying you that that would involve laying off a significant number of employees. So, that's something that you understood was a significant matter. A. Yes. … Q. …You agree, don't you, that you set out what you say Mr Parker said, in paragraph 22, about the exceedance of the 90 thousand tonne limit, and the offer to reduce to meet it and lay off 50 staff. A. The statement, yes. Sorry, I was I have issues with the word offer, I didn't see it as an offer, I just saw it as a statement from a representative from Sell & Parker. … Q. Can I suggest to you that if you were giving candid evidence to the Court, you would readily accept that the statement that you've recorded Mr Parker made at paragraph 22(b) of your affidavit is an offer? A. Again, I just go back to I don't see that as an offer. I see it as a statement made on behalf of a party present at that meeting. 1. Dingle was cross-examined as to why he did not include the Departmental response in either of his affidavits. He stated that he did not recall whether one of the officials responded to Luke Parker's representation with words to the effect of "No. We don't want you to do that" (T78:15-23, 79:04-08, 79:14-22, 79:41-44 and 81:42-47): Q. That you have deliberately chosen to leave out what response was given when Mr Parker said those words. A. No, I don't feel that way at all. Q. Well, you agree that you don't set out any response. A. At the time I was preparing the affidavit dated 10 July 2018, I only captured what I thought was the appropriate information based on my notes and what I recall of the inspection and meeting. That's what I captured, what I thought was appropriate. … Q. You're not suggesting that, as you give evidence before the Court now, you're not suggesting, are you, that there was no response given to Mr Parker when he said the words that you have attributed to him at paragraph 22 of your affidavit. A. No, no. … Q. So, when you made your affidavit, you knew that there had been a response given by officials present at the meeting to Mr Parker, to what he had said, which you have recorded at paragraph 22 of your affidavit. That's right, isn't it? A. That's right. Q. You deliberately chose not to include any such response in your affidavit of 10 July 2018? A. I would not say I deliberately left anything out. … Q. What I want to suggest to you, sir, is that you heard one of the officials present at the meeting respond to what Mr Parker had said by saying words to the effect of, "No, we don't want you to do that"? A. I'm sorry, I don't recall that comment at all. … Q. You deliberately chose not to note down in your notes that Mr Parker had said that, "If the EPA and the department want Sell & Parker to slow down processing to the 90,000 tonne limit, Sell & Parker will comply and lay off 50 staff in the process"? A. I wouldn't say I deliberately left that out with regards to that. I set out to record the conversation in my notes at the time. 1. He was also cross-examined regarding the accuracy of the notes that he had taken during the 20 September 2016 site inspection (T87:28-38): Q. I suggest to you that you made a conscious decision, when you made your notes at the time of the 20 September 2016 meeting, to make no note to the effect of what Mr Parker said, that you've set out in paragraph 22(b) of your affidavit. A. I don't agree with that. Q. I suggest to you that the reason you didn't make a note of it is because you're also well aware that the response forthcoming from the department officials present at the meeting was to the effect of no, we don't want you to do that. A. I've stated earlier that I don't recall that comment. 1. Dingle could not recall discussing Luke Parker's representations with senior supervisors at the Department, however, he "possibly" might have with the Head of Compliance at the Department, Benjamin Harrison (T87:40-88:02): Q. I just want to ask you, sir, having heard Mr Parker offer to come back to the 90 thousand tone limit, I effect, and lay off 50 staff in the process, that must have been a matter a topic that you then took back to the department to discuss internally, do you agree? A. I'm not aware I can't recall any conversations, but possibly. Q. You see, it would stand to reason, wouldn't it, that if a beneficiary of a state significant development consent who had professed to be breaching a quantitative limit..(not transcribable).. that they would comply with it upon the request of the department, but that would involve laying off staff, it would stand to reason that that would be a matter that you would raise with senior officers within the department, as to how you should respond, do you agree? A. Correct. Q. So, did you raise it with anyone in the department? A. I'm again, I'm not aware, I don't have any records of any of those conversations where I may or may not have. I would only be guessing. 1. Dingle reviewed Bourne's inspection report in the weeks following the 20 September 2016 site inspection and meeting, which were provided to him by Pizzolato. Dingle gave oral evidence that Pizzolato said he was satisfied that the report was correct (T92:01-20) and accurate (T94:32). 2. Dingle was cross-examined regarding inconsistencies between his first and second affidavits (T95:02-25): Q. You see, what I want to suggest to you is that, when you considered your response, rather than attempting to genuinely recall a response, you have rather considered what would be a convenient thing to put in your affidavit to disguise the fact that you're well aware that what actually happened was that one of the officials responded to Mr Parker by saying, "No, we don't want you to do that." That's the reality, isn't it, Mr Dingle? A. No. Q. Mr Dingle, when you swore your affidavit of 13 July 2018, you well knew at that time, didn't you, that Mr Parker, Mr Luke Parker, his version of what occurred at that meeting was that one of the Departmental officials had responded to what he had said by saying, "No, we don't want you to do that"? A. No. Q. You weren't aware of that; is that what you're saying? A. No. As previously stated, I don't recall that comment. 1. Dingle stated that he first became aware of Luke Parker's version of events as to what transpired at the 20 September 2016 site inspection meeting, namely, that someone responded with "No. We don't want you to do that", during a video conference with his legal team immediately before the sentence hearing (T95:23-31). However, Dingle conceded that Luke Parker had made this representation to him when Dingle interviewed him in May 2017 (T95:33-97:33). 2. Dingle was also cross-examined on the contents of Luke Parker's ROI (T99:38-100:03, 100:41-101:06 and 101:20-45): Q. Yes. So you then made a point, didn't you, at question 353, of alerting Mr Parker to what it was that he got wrong. That Mr Ritchie wasn't at the meeting. A. Correct. Q. But, you never suggested to him, did you, that anything to the effect that no one had told him to keep doing what he was doing? A. No, not on the basis of the transcript, no. Q. No. Because you knew that in relation to what Mr Parker said, in the answer at 384 of the interview, that he gave to you, you knew that what he said was correct, except for him getting the identity of the person wrong and attributing it to Mr Ritchie. A. No, I don't agree with that. I think that at the time of our interview, I felt the whole statement was questionable, because he was unable to even to refer to someone who was in attendance to that meeting. … Q. You were trying to seize upon the fact that he got the identity of the speaker wrong, in order to avoid acceptance of the fact that the advice in fact had been given. That's the reality, isn't it? A. No. Q. Why didn't you, at any point in this sequence of questions and answers, acknowledge to Mr Parker that you agreed with the substance of some of what he'd said? A. I didn't see it as the role of being interviewer to substantiate any of their claims, only to get representation from the person being interviewed on matters. Q. But this was a rather unusual situation in an interview, wasn't it, in that you were interviewing him about an event which you, as investigator, had been an eyewitness to? A. Correct. … Q. Why did you not agree with him that he had at least got some substance of the conversation at the 20 September 2016 meeting right, according to your own recollection of it? A. Again, I saw the role of the interviewer only to seek representation from the person that's being interviewed, not to flatter us or coordinate or make any representation themselves. Q. See, I want to suggest to you that, at the meeting 20 September 2016, when Mr Parker told the officials, including yourself, present at the meeting, that if you and/or the EPA wanted him to comply with the 90 thousand tonne limit, he would do so and lay off 50 staff in the process, that he also indicated to you to the effect that the consequence would be the decimation of the steel industry. Do you agree? A. No, the statement in the transcript of interview is the first time I recall that statement being made. Q. All right, well, to be fair to you, Mr Dingle, I'm now moving a little bit. So, now what I'm suggesting to you is that back in September 2016, when you attended that meeting, I'm suggesting to you that Mr Parker, to your knowledge, Mr Parker did in fact not only say that Sell & Parker would lay off 50 staff if they complied, but also that that would decimate the steel industry, or words to that effect, do you agree with that? A. No. Sorry to interrupt. No, I don't recall that as well. Q. It's not that you dispute it, it's just you don't recall it, is that right? A. Correct. 1. Dingle agreed that he did not include Luke Parker's recollection of the 20 September 2016 site inspection meeting in his affidavit (T101:47-102:13): Q. Getting back to a question I asked you some time ago, you've read what Mr Parker ‑ that part of the record of interview of Mr Parker of 23 May 2017 to which you've been taken, you would have to agree with me now that when you swore your affidavit of July 2018, you knew full well what Mr Parker's version of events was. A. Correct. Q. So, you knew that he had not only claimed that he had stated that if the department and the EPA wanted him to comply with the 90 thousand tonne limit, he would, but also that there had been a response given from the department officials present no, we don't want you to do that. A. Well, based on the representation he made, yes. Q. So, even though you knew that that was his position, you chose, when you swore your affidavit in July 2018, not to go there. That is, not to even say anything about what response had been given. That's the position, isn't it? A. Correct. 1. Dingle did not accept that he had "invented" a statement included in two years later in his second affidavit that was not referred to in his first affidavit (T93:32-35 and 94:42-47): Q. What is it that you added to the conversation? A. So, I added to the affidavit, I said, "The department is primarily here today to discuss your compliance with your conditionally approved State Significant Development", as to State previously provided by Luke Parker. … Q. You've just invented that addition at the time you prepared your affidavit, didn't you? A. I don't like the word "invented". Like I said, I spent a considerable amount of time upon a request to consider what, if any, response was provided to that statement by Luke Parker. I spent a lot of time considering my recollection of those events and I captured what I saw as accurate. 1. With respect to Luke Parker's comment regarding the need to lay off 50 staff, Dingle stated that (T111:48-112:02): A. With regards to 22(b) in my affidavit, the response from Luke Parker, what I recall of that, how that statement was said, Luke, at this stage, was doing a lot of the talking, himself. He was making most representation on behalf of Sell & Parker, and by this stage of the meeting, had become quite agitated. The Evidence of Pizzolato 1. At the time of swearing his affidavit, Pizzolato was employed as a Manager for the Planning Partnership as part of the Department's Aerotropolis Team. Prior to this, he was Manager – Urban Renewal within the Greater Parramatta Urban Renewal Team at the Department and a Senior Planning Officer, Compliance in the Department's Metropolitan Region Office in Sydney. 2. Pizzolato deposed that in satisfaction of its compliance function, the Department maintained electronic and hard copy records of compliance activities including site inspections, investigations and post approval reviews conducted by Departmental officers, a number of which were reviewed by him in preparing his affidavit. 3. Pizzolato drafted a report based on the notes that he took at the meeting that day. It included the following exchange between himself and Luke Parker (emphasis added): AP: asked how much waste was received or processed per week by the premises. LP: responded by saying that Sell & Parker are currently processing around 4,000 tonnes per week. He then said 'to be blunt, we were over the 90,000 threshold at the time the application was lodged with the Department, with Sell & Parker were processing 4000 per week then, just over 200,000 tonnes per year. The reason Sell & Parker put in DA application was because Sell and Parker was exceeding previous processing limits. If you (EPA and DPE) want Sell & Parker to slow down processing to the 90,000 tonne limit Sell & Parker will comply and lay off 50 staff in the process. 1. Pizzolato initially deposed that he did not recall if he, or any other person present at the 20 September 2016 site inspection meeting, responded to Luke Parker's statement about complying with the 90,000tpa limit. Critically, Pizzolato later changed his evidence in this regard, the significance of which is considered in greater detail below. 2. On 21 September 2016 Pizzolato emailed Maddox regarding a number of matters discussed during the 20 September 2016 site inspection. No response to Luke Parker's statement was recorded in that communication. 3. At 7.52 pm, one working day prior to the sentence hearing commencing on 1 July 2021, the prosecutor disclosed to S&P's counsel that during Pizzolato's witness preparation, Pizzolato's evidence concerning what was said during the 20 September 2016 site inspection meeting had materially changed. 4. The disclosure related to S&P's evidence that Pizzolato had said words to the effect of, "No. We don't want you to do that" in response to Luke Parker's statement that S&P would comply with the 90,000tpa limit and lay off 50 staff in the process. The prosecutor disclosed that, although previously denied, Pizzolato recalled that somebody – not from S&P – had in fact responded by saying "we don't want you to do that". 5. Pizzolato initially stated in his oral evidence that he could not recall who had made the representation (T126:22-30). He stated that it could have been an EPA officer who said those words (T127:44-47). However, he later agreed that it could have been him (T132:04-10): Q. If I understand your evidence, you simply do not recall whether it was either you or Mr Dingle or Mr Preston‑Stanley or Mr Bourne who said those words; is that the position? A. Yes. Q. It could have been any one of those persons and you just don't know? A. Yes. 1. Pizzolato also observed that when Luke Parker had made the representation to the effect that S&P would comply and lay off 50 staff in the process he was upset (T126:08-12): A. So ‑ so his voice ‑ his voice became angry. His ‑ he ‑ from my recollection, he actually sort of leaned forward ‑ a bit more forward. He ‑ he went from his position at the ‑ at the ‑ at ‑ at the ‑ at the ‑ in the meeting room. He was pretty defensive in his behaviour as well and ‑ and you could see that his ‑ his tone had changed in that regard. 1. Pizzolato was cross-examined extensively regarding his understanding of the exchange that had occurred and whether he had understood that Luke Parker had made an offer to comply with the consent. Initially he accepted that Luke Parker had made such an offer (T132:36-133:13): Q. Because you understood, didn't you, that he was a director of the company admitting that the company was in breach of a condition of the Minister's consent? A. Yes. Q. You also knew that Mr Parker was making an offer to the officials at the meeting in terms that you set out in your affidavit, "If you want Sell & Parker to slow down processing to the 90,000 tonne limit, Sell & Parker will comply and lay off 50 staff in the process"? A. Yes. Q. You understood that that was a significant offer insofar as acceptance of it would involve, according to Mr Parker, laying off 50 staff? A. Yes, I did. Q. It was a very significant matter, in your mind, when Mr Parker made that offer, wasn't it? A. Yes. Q. You were acutely aware at the time, I suggest that is, in the period immediately after Mr Parker had said those words that the department would need to take a position on what Mr Parker had offered; do you agree? A. Yes. Q. You agree, don't you, that the department could essentially have said, "Yes, slow down the processing to 90,000 tonnes. We want you to do that", or, as it turns out, what was actually said, "No, we don't want you to do that"? A. Yes. 1. However, he later appeared to resile from this evidence (T135:24-46 and 137:07-14): Q. In giving that answer, Mr Pizzolato, part of your answer was to suggest that you didn't accept the characterisation of what Mr Parker had said as an offer, that you considered it to be more of a statement. Do you recall just saying that? A. Yes, I did. Yes, I do, sorry. Q. But didn't you say yourself just a short time ago when answering my questions this afternoon, didn't you accept unreservedly that that was an offer? Do you remember that? A. Not those words, no. Q. Well, what I'm asking you, Mr Pizzolato, is whether someone has suggested to you that you should characterise that as a statement and not accept the characterisation of that as an offer; is that the position? A. No one has no one has suggested that to me, no. … Q. Mr Pizzolato, whether you characterise what Mr Parker said as an offer or not, it would make no sense at all, would it, for the department to discuss Mr Parker having said words to the effect of, "If you want Sell and Parker to slow down processing to 90,000 tonne limit, Sell and Park will comply and lay off 50 staff in the process", and not also discuss at the same time a response from an official to the effect, "We don't want you to do that." It just doesn't make sense, does it? A. Probably not. 1. Pizzolato could not recall if any specific Departmental discussions or any official response had occurred regarding Luke Parker's statement, but agreed that such discussions would have occurred (T133:15-29 and 133:42-134:37). 2. An electronic invitation for a meeting on 17 October 2016, concerning the consent, that had been organised by Appleton, listing Pizzolato, Dingle and McNicol as attendees, was shown to Pizzolato (T156:23-157:05). Pizzolato could not recall if the 20 September 2016 site inspection meeting was discussed at that October meeting (T157:20-24 and 158:01-04). 3. Although Pizzolato had lost his contemporaneous notes on the 20 September 2016 sit inspection, he stated that "from memory" he would have typed up the electronic notes "a few days" after the site inspection (T138:39-40). Pizzolato could not explain why his notes of the 20 September 2016 site inspection meeting did not set out the Departmental response to Luke Parker's representations (T155:13-156:01): Q. Yes, I'm suggesting to you, or I'm asking you to agree with me and please tell me whether you agree or disagree that where you've stopped your note does not reflect the end of the conversation that was being held in the board room on 20 September 2016. A. Correct. I agree. Q. And how do you explain that within, you say, days of attending this meeting, you omitted to put into your note that one of the officials present had responded to what Mr Parker said, by saying words to the effect, "We don't want you to do that." A. I don't have an explanation for that, sir. Q. It is correct, isn't it, that you made a conscious decision at the time you prepared annexure F, not to include that response? A. I can't recall if that is the case. Q. But that would be one explanation for why it's not included? Could be one explanation for why it's not included, do you agree? A. No, I don't. Q. Well, you wouldn't have forgotten within days of the meeting, the response that had been given by one of the officials to what Mr Parker had said, to the effect, "We don't want you to do that." Do you agree? A. No, I don't. Q. Are you suggesting, seriously, that you just forgot you may have forgotten, in the short period of time between the meeting that occurred on 20 September, and the period of time that you typed up this note, just simply forgot the face that that response had been given. Is that what you're suggesting may be feasible? A. I can't recall. Q. It just doesn't make sense though, does it? A. No, it doesn't. Q. All right. And you can't give the Court any sensible alternative to the explanation that I've suggested, that you deliberately left out that response. You can't give any alternative that makes sense to the Court, can you? A. No, I can't. 1. In re-examination, Pizzolato could not provide the Court with a reason for not recording the Departmental response (T158:23-35). Records of Interview Richards's ROI 1. On 22 May 2017 Dingle interviewed Richards. Richards was questioned regarding the ECS and errors in Ektimo's testing of that system as follows: Q516. So is it your understanding that the emission control system built on site is consistent with what was proposed as part of the development application? A. As I said, because it started before my time, I don't know the full details of it. All I'm generally concerned is, is that it gets the result required. Q517. In what has been provided to you in the monitoring that you have directed to occur on site and the results that have been provided to you - - - Mm mm. Q518. - - - do they demonstrate that the system is performing against the parameters identified in the air quality assessment report prepared by the ERM, dated September 2015? A. Don't know. Q519. So who within Sell & Parker is responsible for making that assessment or monitoring that? A. To explain, when Ektimo did the test, they made a mistake. I only found this out in the last two weeks, so the test results were invalid. It has to be redone. Q520. Okay. Can you describe to me that mistake? A. They did the air flow when the unit was on idle, not in production, so all calculations are off air flow, so it's wrong. Q521. Okay. So is it fair to say that the commissioning hasn't occurred for the emission control system then? A. There's a difference - - - Q522. Yeah. A. - - - between commissioning and testing. I'm responsible for testing, not commissioning. Q523. So who is responsible for the commissioning? A. All that was started before my time, so l couldn't tell you. Q524. So who do you provide the testing results to? A. Luke. Q525. Luke, okay. And has Luke provided you any instructions based on those results? A. Given we only just found out the error, I haven't had time to talk to him about it yet. Q526. Okay. So who identified the area to you? Error, sorry. A. I worked it out. Actually, no, Aaron Davis from Ektimo worked it out when he was there two weeks ago retesting against the EPL, and he says, "Well I didn't test it like this last time," and I've gone, "Ah, that's why it's wrong." It never made sense at the time, now it does. Q527. Okay. When you say, "That's why it was wrong," what do you mean by that? A. The air flow was so low. Luke Parker's ROI 1. On 23 May 2017 Dingle interviewed Luke Parker. Dingle questioned him regarding his understanding of S&P's non-compliance with the consent identified in the Independent Audit Report: Q162. On that, I suppose now is a good opportunity, can you describe to me your understanding of the non-conformances which are documented in that report? A. We can go through the report. The report says that there are non-compliances being administrative, some tonnages, emission collection system, dust monitors, oil storage, and the emission collection system and there was a summary placed on - and a description of each one of them. There were some issues that were totally out of our hands in that - for instance the dust monitors, we were required to install dust monitors, we ordered them, they had a long (indistinct) time, they were delivered, they were paid for, they were delivered, when they went to commission they failed, they had to be replaced by the OEM. Technically a non-conformance but a nonconformance that l don't think I'm in any way responsible for, we did everything we possibly could to make the thing work. It wasn't that we were told by anybody not to do it so there was some non-conformances relating to those sort of matters, there were other non-conformances that relate to the non-approval of the construction certificate which relates to the management plans. Q163. Do you have a role within Sell & Parker in endorsing or approving that document? A. It didn't have to be endorsed or approved. Q164. Do you endorse or approve the findings - do you find the findings in that report to be accurate? A. I don't hold an opinion. Q165. Do you find that any of those findings to be inaccurate, based upon your knowledge, working knowledge within your role as CEO for Sell & Parker? A. I don't know of any inaccuracies at this point. 1. Dingle asked Luke Parker a series of questions regarding his recollection of the 20 September 2016 site inspection meeting: Q348. Who (indistinct)? A. I advised Mr Ritchie in the meeting that was held at our site in September 2016, and I requested him that if he wanted me to reduce my tonnage to below 90,000 to let me know and I would do so, and I would commence making people redundant that day, and he advised me not to do that he told me he didn't want me to make anybody redundant, "Keep doing what you're doing." You were at that meeting. Q349. So just to be clear, when you're referring to Mr Ritchie, is that Chris Ritchie? A. Chris Ritchie. … Q352. I'll put to you that I did attend a meeting in November 2016 - - A. I'm sorry, November, I'm sorry. Q353. - - - yeah I will also put to you that Chris Ritchie was not in attendance for that meeting. A. He was, wasn't he? We did the walk around the site and then- Q354. Yeah. A. - - - we were up in the boardroom? Q355. Anthony (indistinct) from the department and myself attended that meeting with the EPA officer Alex Bourne? A. Okay. Q356. Would you like to reconsider that statement? A. I'd reconsider that but it was somebody from the department, I thought it was - that was the first visit you guys did when we did the walk around the site? Q357. Yes. A. Okay, I apologise. Q358. Yeah. A. I was mistaken but it was definitely somebody from the department said it because I expressly asked that, I expressly asked that in, in the conversation. Q359. So were there any written instructions provided around that discussion? A. It was a discussion in the boardroom upstairs at 23 Tattersall Road. Q360. Any advice given from the department? A. Yes, told us not to do that, "We don't want you to do that", because I said I will make people redundant and I will shut down the steel industry in New South Wales which is the impact that this would have and the advice was, "We don't want you to do that". Q361. And you don't recall who gave you that advice? A. Well I'm, I'm mistaken, I'll have to go back and ask the other people at the meeting. Q362. You would have an induction sign-on on site? A. I don't think these guys signed the induction sign-on when they came on site. Q363. No. A. It was only, it was at the meeting with - if there was only - if Mr Ritchie wasn't at the meeting then I'm mistaken but it was at that meeting when we did the walk around in November. Q364. Okay. A. So I've got the right meeting, I've got the wrong person. Q365. Yeah. A. Because if you recall, the question is how many tonnes are you doing and the answer was, you're asking the wrong question, you're not asking the question how many tonnes I'm doing this year, you should have asked how many tonnes I was doing last year and the year before. I can remember the conversation very, very, very clearly. I've got the wrong person I was talking to, I'll grant that, but I can remember the words. 1. Luke Parker accepted that he was aware that there were instances when S&P had exceeded its tonnage limits under the consent on a pro rata weekly basis (Q/A381-382). However, he stated that he was not aware whether anyone else in S&P had an understanding of the limits (Q/A383). Nevertheless, he accepted that Richards was aware of the amount of waste received at the site annually (Q/A384-386). 2. Luke Parker accepted that it was his responsibility, and that of S&P's board, to ensure compliance with the conditions of consent (Q/A388-389). 3. But he blamed S&P's non-compliance on delays in the regulatory approval process: Q397. So can you tell me why, in your opinion, the development's failed to comply with condition AS? A. We're too successful. I'll tell you - actually no, I take that back, the reason we've failed to comply with condition A8 is because we can't get, we can't get our management plans approved. If we got our management plans approved, then we would have had an occupation certificate then we would have obtained our final, a final occupation certificate and we would comply. Q398. Okay. A. So it's not because of anything that Sell & Parker's done, we're waiting for approval from the department of the management plans, that why we failed. 1. Luke Parker provided evidence that he had read the board report entitled S&P Board Report November 2016 Environment written to meet requirements of Condition C11 of the Department of Planning and Environment State Significant Development Consent 504 ("Board Report") but was not familiar with its contents (Q/A591-592). He was, however, familiar with the Independent Audit Report by Lloyd's (Q/A583-585). Defendant's Evidence 1. S&P relied upon affidavits deposed by the following witnesses: 1. Luke Parker, sworn on 24 May 2021; and 2. Francis Bethwaite, affirmed on 24 May 2021. The Evidence of Luke Parker 1. Luke Parker is the Managing Director and CEO of S&P. He has held the position of Managing Director since 1995 and CEO since 2000. 2. Luke Parker deposed to a history of S&P and its use of the site. 3. Relevantly, in 2011 S&P became aware that the business was growing. Luke Parker described the growth of S&P in this period as "generally organic" in line with market forces, including the expansion of recycling buoyed by a strong property market and the reshaping of industrial areas into residential apartments. S&P applied for a SSD consent because it considered that this would be a faster process to meet its growth. 4. In November 2011 S&P requested DGRs for its proposed expansion of capacity. These were issued in December 2011. Before S&P responded to the DGRs, it prioritised removing the time limitation contained in condition 2 of its previous consent granted on 11 May 2001, which stated that the life of the approval was 20 years from the date of its grant. S&P commenced proceedings in this Court to amend the condition. On 6 November 2016 the Court removed the time limitation. 5. The first SSD application was lodged on 17 March 2014. It sought consent for an: Increase in handling capacity of the existing waste metal recovery, processing and recycling facility at 45 Tattersall Road to 350,000 tonnes per annum. The expansion would incorporate the adjacent site at 23-43 Tattersall Road. 1. That application was accompanied by an Air Quality Assessment prepared by ERM, dated March 2014. 2. After lodging the application, S&P obtained and submitted to the Department the following reports: 1. the 2014 Air Quality Assessment; 2. the 2015 ERM Report; 3. the 2015 Health Risk Assessment; and 4. the 2015 ERM Assessment. 1. In 2015 S&P appealed the Department's deemed refusal of the SSD application. The appeal was unsuccessful because it was brought out of time. 2. Subsequently, S&P lodged another SSD application for an increase in the production limits at the site. The Department rejected this application and S&P appealed the refusal. On 12 November 2015 a delegate of the Minister granted consent to the SSD application. 3. The consent has since been modified on three occasions, namely, on 19 October 2017 by the Court and on 26 February 2018 and 29 May 2019. Operations at the Site 1. Luke Parker deposed that S&P receives all types of scrap ferrous and non-ferrous metals at the site from a range of suppliers. In the 2017 financial year approximately 2,260 customers supplied scrap to the site. The material received is either: 1. transferred to another S&P site; 2. directly sold to customers; or 3. processed at the site and sold to customers or, in the case of floc, disposed of in landfill. 1. Approximately 75% of the material that S&P receives at the site is processed using the hammer mill. About 20% of that is ferrous metal that is sheared or gas-cut and the 5% balance is non-ferrous metal that is baled or not processed. The hammer mill can process black iron, white goods and end of life vehicles. 2. The downstream system then automatically sorts the hammer mill product into grades including ferrous metal, non-ferrous metal and floc. 3. The material that is not processed using the hammer mill is either not processed at all or is processed using a fixed shear, oxycutting or a baler. 4. S&P's customers include small foundries, overseas consumers and large steel mills in NSW. S&P supplies ferrous material processed using the hammer mill to steel manufacturers who remelt the processed scrap to make new steel. Floc is disposed of at the Dial-a-Dump Eastern Creek landfill. 5. Luke Parker provided evidence regarding the scrap metal market in NSW. He deposed that S&P was one of only three major metal recyclers operating in NSW. 6. In 2015 one of S&P's major competitors was Onesteel Recycling Pty Limited ("Onesteel"), a wholly owned subsidiary of Arrium Ltd ("Arrium"). In August 2015 Arrium announced a loss of $1.9 billion for the 2014/2015 financial year and it was placed into receivership in April 2016. This had extensive impacts on the scrap metal market in the State. There were concerns that scrap metal consumers would be unable to secure supply. 7. Luke Parker attested to the environmental benefits of metal recycling and the extent to which this practice results in the reduction of greenhouse gas emissions. As a result, S&P has been awarded a number of grants in recognition of its innovative and environmentally sustainable waste management strategies. The Emissions Collection System 1. According to Luke Parker, S&P's shredder on the site is the only shredder in Australia that has had an ECS installed. S&P's ECS installation was complicated by the regulatory requirement that an extraction system be engineered around the hammer mill's acoustic barrier and infeed projectile hood, because these components were not installed on any other shredder in Australia. 2. In June 2014 Luke Parker became aware that, in order to meet the air quality requirements that were likely to be imposed for any expansion of the site, S&P would need to install environmental controls that were bespoke. He contacted Brian Roser of lndux Environmental Systems Pty Limited ("Indux") on 11 June 2014. Indux provided him with an ECS proposal on 5 September 2014. 3. On 21 July 2015 lndux presented a plan for the ECS that anticipated installation by October 2015. Due to Indux's delays, the ECS was not operational until 25 November 2015. 4. The ECS was operational throughout December 2015 but was being debugged. The debugging was anticipated given the complexity of the mechanism. 5. By mid-January 2016 the plant appeared to be operating normally. On 27 January 2016 S&P contracted Ektimo to conduct a test of the ECS on 3 February 2016. 6. S&P received a test report from Ektimo on 23 February 2016. It was apparent that the volumetric flow rate was lower than predicted in the 2015 ERM assessment. S&P consequently formulated a plan to rectify this by making further changes to the ECS design. 7. Subsequent modifications were made to the ECS, including improvements to the fans to boost the air flow. On 11 May 2016 S&P contracted Ektimo to test the ECS again at their earliest availability. The test was carried out on 14 June 2016. 8. Maddox provided the 2016 Commissioning Report to Appleton on 1 September 2016. On 18 October 2016 Appleton emailed S&P stating that the 2016 Commissioning Report had been rejected and that the testing had to be redone once the stack was in its final position. Luke Parker described Appleton's email as containing "little explanation" for the Department's rejection of the 2016 Commissioning Report. 9. From May 2016 to 2018 the only change in relation to the ECS was the location of the stack. On 31 March 2017 S&P contracted Ektimo to re-test the ECS at its earliest availability. On 27 April 2017 Ektimo conducted its third round of testing of the ECS. S&P received Ektimo's report on 26 May 2017. The results of the hammer mill testing, insofar as it related to gas flow parameters, indicated that the velocity at the sampling plane (recorded as 25m/s) was at the correct fan speed. S&P forwarded Ektimo's report to the Department on 3 July 2017. 10. On 14 July 2017, in response to a Departmental request, Aaron Davis of Ektimo called Dingle to discuss Ektimo's latest test report. 11. The stack was constructed and located in its final position by July 2018. 12. On 9 August 2018 ERM emailed the EPA with a Commissioning Plan in order to obtain the EPA's approval for the installed ECS as required by the consent and the EPL. ERM invited the EPA to witness the testing. On 28 August 2018 the EPA responded to ERM and S&P by way of email. The email set out the required sampling methodology to meet the requirements of condition E.12 of the EPL. 13. On 31 August 2018 ERM sent an email to the EPA with details of the proposed sampling methodology for the EPA's approval. On 4 September 2018 ERM and S&P received an email response from the EPA approving ERM's proposed methodology. On 11 September 2018 Ektimo attended the site and tested the ECS in its final location. On 19 October 2018 S&P received a second Commissioning Report prepared by ERM ("2018 Commissioning Report"). 14. S&P sent an email to the Department requesting that the Secretary approve the ECS for operation on 19 October 2018. Attached to the email was ERM's 2018 Commissioning Report which included drawings of the ECS and Ektimo's Emission Testing Report dated 27 September 2018. 15. On 22 November 2018 S&P's solicitors emailed the Department requesting that the ECS be approved for operation and setting a deadline for the approval, if not S&P would commence Class 1 proceedings in the Court. On 26 November 2018 S&P filed a Class 1 application and a notice of motion in the Court. And on 29 November 2018 the Department sent S&P a letter formally approving the operation of the ECS. The 20 September 2016 Site Inspection and Meeting 1. Prior to the 20 September 2016 site inspection, Luke Parker discussed the inspection with Morgan Parker. They noted the likelihood that the issue of S&P's throughput limit exceedance would be raised by either the Department or the EPA and agreed that the appropriate response would be to offer to slow down to the 90,000tpa rate if the regulators wanted. They discussed the implications for S&P, its customers and employees, and performed "rough" calculations to conclude that decreasing S&P's throughput would mean that they would have to lay off approximately 50 people. 2. Luke Parker deposed that during the 20 September 2016 site inspection meeting the following exchange took place: 96. During the course of the 2nd meeting, Anthony Pizzolato asked how much scrap was being received at the Kings Park Site each week. I replied in words to the effect that: 'we are processing around 4,000t per week in the shredder. Sell and Parker has been exceeding the 90,000t limit for some time and that is why we lodged the Development Application to increase our tonnage'. 97. I then said words to the effect of: 'If the EPA and Department of Planning want me to reduce my tonnage to 90,000 tonnes p.a., we will immediately do so and I will have to lay off 50 staff.' 98. I also said words to the effect of: 'this will decimate the NSW steel and construction industry as the steel mills needed our product to make steel to supply to the construction industry.' 99. At the time, Sell & Parker employed about 100 people at the Kings Park Site. 100. I had full authority to make that offer and I had every intention of acting in accordance with the offer. 101. Anthony Pizzolato immediately responded by animatedly leaning back in his chair, opening his palms to me and raising his arm up as he said: 'No, we don't want you to do that.' 1. He stated that he was struck by the immediacy and certainty of Pizzolato's response and that he had no reason to doubt its truth. 2. He also stated that he considered the exchange between himself and Pizzolato to be the most important outcome of that meeting and that, in his view, the Department was exercising its discretion not to prosecute S&P given all of the measures that S&P were taking to regularise the site to achieve compliance. 3. Immediately after the 20 September 2016 site inspection meeting, Luke Parker conferred with Richards and Maddox regarding the dialogue with Pizzolato. He left the site shortly thereafter and called Ross Parker and Morgan Parker, to whom he relayed details of the conversation with Pizzolato and reported on the meeting more broadly. The Consequences of Lowering Receipts Below 90,000tpa 1. According to Luke Parker, if S&P reduced its receipt of material to the stipulated 90,000tpa limit, it would have been required to reduce costs to stay financially viable. The site's major variable cost is labour, so S&P would have taken steps to reduce the number of staff. S&P would have been required to reduce its operating hours and immediately cut the afternoon shift and laid off all employees on that shift. S&P would have also been required to dismiss some transport and maintenance staff. 2. Furthermore, S&P's accounting team would have been downsized and its operations manager made redundant. In addition, S&P may have needed to direct material to S&P's other sites or to third-party sites. Luke Parker deposed that S&P would have endured financial hardship if it reduced receipt of waste at the site to the 90,000tpa limit, notwithstanding the likelihood that its costs would have also reduced. Lloyd's Independent Environmental Audit 1. Under the terms of its consent and the EPL, S&P was required to commission an independent environmental audit of its activities on the site within 12 months of the grant of those instruments. 2. On 13 October 2016 S&P sought an extension of time within which to submit the Independent Audit Report for a number of reasons, including that Lloyd's was yet to receive a response from the EPA regarding the scope of the audit. 3. By letter dated 14 October 2016, the EPA raised the issue of exceedances and attached an inspection report from the 20 September 2016 site inspection and meeting. 4. On 17 October 2016 the Department emailed S&P twice seeking further information from S&P regarding its request for an extension of time. S&P provided this information on 19 October 2016. 5. The Department refused to grant an extension of time on 21 October 2016. The Independent Audit Report was completed in late October 2016 and a copy was submitted to the Department and the EPA on 28 November 2016. The Report noted S&P's non-compliance with tonnage limits. 6. The issue of tonnages was not, however, raised by the EPA with S&P directly until 11 August 2018. According to Luke Parker, the EPA has never directed or advised S&P to reduce the quantity of metal received or recycled at the site. S&P had also declared its exceedances of tonnage limits to the EPA in its Annual Returns for both the 2015/2016 and 2016/2017 financial years. November 2016 Board Meeting 1. In November 2016 Richards prepared the Board Report. The Board Report noted a number of non-compliances with the consent including with respect to air quality and tonnages. 2. A board meeting was held on 17 November 2016. Present at the meeting were Luke Parker, Morgan Parker, Grant Leonard and Ross Parker. The Board Report was considered at this meeting. The board discussed S&P's non-compliance with the consent. Luke Parker deposed that he reminded the board of Pizzolato's statement made at the 20 September 2016 site inspection meeting that the Department did not want S&P to reduce its tonnages. The board noted that S&P had not received any direction or had any discussion with any regulatory authority regarding its non-compliance since that meeting. In his affidavit Luke Parker stated as follows: 127. I considered Anthony Pizzolato's direction, the absence of any direction or subsequent discussion to the contrary, the fact the ECS was operating and that ERM had reported the same in its report, and what I considered were merely administrative delays to formal approval. We all considered that there was no environmental harm flowing from the exceedance and everything was performing in accordance within the projections of the environmental impact statement and the stormwater issues were resolved. The Board resolved the excess tonnage was not a matter of high concern to Sell & Parker nor to the Department or EPA. 1. Morgan Parker agreed that the excess tonnage did not seem to be a matter of great concern for either the Department of the EPA and that S&P should continue to finalise regularising outstanding compliance issues. Accordingly, "the Board considered the appropriate response to the non-compliance with respect to tonnages was that it was 'Acknowledged'". 2. During the period from 20 September 2016 to the commencement of the proceedings on 7 August 2018, there were various interactions between S&P and the Department, including: 1. the issuing by the Department of statutory orders and notices relating to aspects of S&P's operations and S&P's responses to those orders and notices; and 2. Departmental interviews with Luke Parker and other S&P officers. 1. At no time during this period did the Department, or any of its officers, direct or suggest that S&P cease receiving scrap metal or reduce the rate at which it received scrap metal at the site. Nor did the Department, or any of its officers, clarify the statements made by Pizzolato at the 20 September 2016 site inspection meeting. This confirmed in Luke Parker's mind that the Department maintained the position expressed by Pizzolato during the meeting, namely, that it did not want S&P to cease or reduce the receipt of scrap metal at the site. Sell & Parker's Commitment to Protecting the Environment 1. Luke Parker deposed that he believes that S&P operates as the best practice metal shredder facility in NSW with respect to environmental performance, as demonstrated by the following: 1. in 2002 S&P constructed the hammer mill with an engineered acoustic shield to reduce noise and dust dispersion. S&P's hammer mill remains the only hammer mill with an acoustic shield in the State; 2. S&P also constructed the hammer mill with an engineered projectile cover. This reduces the possibility of projectiles being launched from the hammer mill feed chute. This feature is the first of its kind in NSW; 3. in 2005 S&P purchased and installed a preshredder at the site which reduces the frequency of explosions in the hammer mill. S&P is the only licenced hammer mill in NSW which uses a preshredder; 4. in 2009 S&P installed an electric material handler to feed the hammer mill, which reduces diesel consumption and greenhouse gas emissions; 5. between 2014 and 2015 S&P appointed independent environmental specialists; 6. in 2016 S&P commissioned the ECS to reduce emissions from the hammer mill. It is the first of its kind in NSW; 7. in 2017 S&P ceased discharging treated stormwater from operational areas into the stormwater system by installing a treatment system to recycle all water on site; 8. in 2018 S&P installed renewable energy systems at its sites; and 9. in 2019 S&P relocated the loading of floc trucks indoors to minimise dust emissions. Remorse and Contrition 1. Luke Parker deposed, personally and on behalf of S&P, that he was sorry that S&P had breached the consent. He described the proceedings as a "significant learning experience" and stated that S&P will not adopt "this approach" again. He further deposed that S&P prides itself on doing the right thing for the community, its customers, employees, and the environment. 2. However, he went on to say that: 160. The breach of our tonnage limit was not legal. As our volumes grew, we disclosed our position to the regulators and took steps to amend our approvals and we took action to protect the environment while we navigated the approval process. 161. SSD 5041 was Sell & Parker's first experience with the SSD process. We were completely unaware of the complexity and duration of the SSD approval process. Whenever we felt the approval process was stalling, we took action and engaged experts to expedite the process. We worked with the Department and EPA during this process and we held a genuine belief that we were working towards the same goal. In light of our positive action, we considered that the DPE was exercising discretion regarding our tonnages to permit us time to get the formal approval in place. Luke Parker's Oral Evidence 1. Luke Parker was extensively cross-examined. He agreed that he is an educated person, holding university degrees in law, commerce and business administration (T212:46-213:07). 2. He was questioned about when he first became aware that S&P's 90,000tpa limit was being exceeded. He conceded that, consistent with his ROI, this occurred as early as 2011 (T213:24-30; 214:03-05; 215:20-26 and 222:45-47). Parker vaguely recalled that BBC had sent a letter to the Department on S&P's behalf in late 2011 regarding the expansion of the site's capacity to intake 350,000tpa of waste (T215:28-31). He readily accepted that during the period from late 2011 to March 2014, when S&P lodged the SSD application, it was exceeding the 90,000tpa limit at some point (T223:23-40). 3. Luke Parker was taken to extensive correspondence from the Department and the EPA with respect to the need for S&P to address their concerns regarding air quality. He recalled that he was provided with revised DGRs in 2013 and agreed that, upon the receipt of those DGRs, that it was clear from the outset that air quality and odour was an issue that needed to be addressed (T221:11-16). 4. Luke Parker emphasised that he was concerned about the delay in the SSD application approval process and the regulator's perceived inadequacies with S&P's assessments (T245:04-19 and 249:17-24): Q. Right, you were concerned about the application process weren't you? A. Yes. Q. You were concerned that the application process was not going as fast as you would have liked? A. Yes. Q. Were you concerned that the EPA was raising environmental concerns through this process? A. Not concerned that they were raising them no, I wasn't concerned about that. Q. But concerned that these matters had not yet been addressed to the satisfaction of the EPA correct? A. Yes I was concerned about that. … Q. Do you recall being troubled about their position that there was a significant risk of adverse air quality impacts unless the proposed design was improved? A. I recall that the proposal needed to be re ‑ there needed to be modifications to the proposal. Q. Do you recall that that was to address concerns about potential air quality impacts? A. Yes. 1. Luke Parker understood the scale of the proposed increase to S&P's tonnage limits (T246:24-30): Q. …that the proposed development would increase the amount of material being processed per annum by 389% you see that? A. Yes. Q. And it obviously wasn't lost on you that jumping from 90 to 350,000 tonnes was effectively a quadrupling of the capacity of the site? A. Yes. 1. With respect to the EPA's 22 April 2015 letter, Luke Parker could not recall if he was alerted to the EPA's concerns contained in that letter (T247:20-30). He also could not recall if he had attended the 18 May 2015 meeting with the EPA to address the ongoing issues, or if he discussed that meeting with either S&P officers or Mecone (T253:10-27). 2. He understood that the GTAs required the EPA's satisfaction as to the performance of the ECS before S&P was allowed to receive 350,000tpa of waste (T257:15-24 and 257:36-41): Q. So the EPA was making it clear, in its general terms of approval, that it had to be satisfied of the performance of the ECS before the 90,000 tonne limit could be exceeded. A. Yes. Q. And you appreciate that the words there are to the satisfaction of the EPA? A. Yes. Q. That's different from to the satisfaction of Sell & Parker, isn't it? A. Certainly. … Q. And then you get to L5.4. "Once the hammer mill emissions collections system is fully operational, and has successfully passed post commissioning proof of performance trials to the satisfaction of the EPA, a maximum of 350,000 tonnes of scrap is permitted to be received at the premises per annum." A. Yes. 1. Throughout the relevant period, Maddox informed Luke Parker that the regulators had rejected S&P's plans (T262:13-21). 2. Luke Parker accepted that in the period between May and September 2015 S&P was exceeding the 90,000tpa limit imposed by the consent (T260:10-12). 3. Luke Parker knew as at the time of the 20 September 2016 site inspection, that S&P would not be able to comply with the 90,000tpa limit and that it would grossly exceed it (282:43-45). 4. While he accepted that it was possible that at the 20 September 2016 site inspection meeting he had used the words "I would commence making people redundant that day" instead of "I will have to lay off 50 staff" (T295:35-42; 302:22-47), he maintained that the words used by him in his ROI (that he had inadvertently attributed to Ritchie), namely, "he advised me not to do that. He told me he didn't want me to make anyone redundant", were not correct. Rather, the words were "we don't want you to do that" (T296:18; 297:09). He could not explain why different words were used in the ROI (T297:41). He also denied using the words "I will shut down the steel industry" at that meeting (T299:13-29 and 302:49-303:01). 5. Luke Parker agreed that his affidavit evidence regarding the 20 September 2016 site inspection meeting was given from memory (T283:19-33). Maddox may have taken notes at the site inspection and meeting, but Luke Parker did not know the location of these notes (T281:13-29). 6. Luke Parker was cross-examined regarding inconsistencies between his affidavit evidence and his ROI evidence (T295:34-296:18 and T297:01-26): Q. I'll just repeat rephrase the question, rather, Mr Parker. Do you think there's a possibility that the words you used during the inspection in September 2016 were "I would commence making people redundant that day"? A. It's possible. Q. So that might be what was said, instead of the words "I will have to lay off 50 staff"? A. Possible. Q. I mean, you appreciate that May 2017, when you're answering these questions, is a lot closer to the events than we are now in 2021, right? A. Yes. Q. And, of course, you've said before you weren't or you gave an answer to the effect you weren't trying to mislead the investigators in any way, right? A. Sure. Q. You were trying to be as accurate as possible during this interview; correct? A. Yes. Q. Then you report the next part of the conversation as this. He advised me not to do that. He told me he didn't want me to make anyone redundant." Do you see those words there? A. Yes. Q. Do you think it's possible that they were the words that were used by Mr Pizzolato during the inspection in September 2016? A. No. Q. Why do you say that with such certainty? A. Because I can remember the response photographically. Q. What's the response that you remember photographically? A. "We don't want you to do that." Hands behind the head, saying it clear. … Q. Did you just make those words up in the interview? A. I don't know. Q. But you're denying the possibility that those words might have been said? A. I am. Q. Can I put to you this? You're not in a position in July 2021 to be able to say that those words weren't used, are you? A. Yes, I am. Q. This is five years after the events, Mr Parker, isn't it? A. It was one of the most important conversations I'd ever had with the regulator. I remember it. Q. And here you were, being interviewed by that regulator in respect of possible offences by the company; that's a pretty important exchange, isn't it, Mr Parker? A. Sure. Yes. Q. During that exchange, after you'd been warned about not giving misleading answers, you told the investigator that "He told me he didn't want me to make anybody redundant"? You accept that you said those words in the interview? A. I accept that's the transcript, yes. Q. And you wouldn't just make them up in an interview, would you? A. I don't know. 1. Luke Parker explained that the inconsistencies were the result of being confused by Dingle's questioning (T299:31-35). However, he accepted that he did not now have a precise recollection of the words used during the 20 September 2016 site inspection meeting (T299:41-43 and 303:03-15). 2. Luke Parker was cross-examined regarding the meaning of his statement made at the 20 September 2016 site inspection meeting that S&P could comply with the consent but would lay off 50 staff in the process. He denied that this amounted to a threat and described it as an "offer" (T320:49-322:17, emphasis added): Q. I'll just read it to you so that you understand the assumption. Assume that this was said, "If the EPA and Department of Planning want Sell & Parker to slow down processing to the 90,000 tonne limit, Sell & Parker will comply and lay off 50 staff in the process". Got that? A. Yes. Q. Assuming that that was said, that was a challenge to the department, wasn't it? A. No. Q. I accept you said no to that. It was a statement that contained a threat, didn't it? A. No. Q. The threat being that Sell & Parker would lay off 50 of its staff in the process? A. It's not a threat. Q. How do you characterise that statement? A. Consequence. Q. The entire statement? A. On inside, an offer. Q. An offer? A. Yes. Q. Which part is the offer? A. Which part - I'm - - Q. Explain your answer that this is an offer. A. I'm inviting a response. Q. What was the offer you made, Mr Parker? A. If you want us to do something, we will do it. Q. What is it that you would do, Mr Parker? A. We will comply and lay off 50 staff in the process, according to the words you used the assumption. Q. Mr Parker, it was an obligation of the law that you comply with the 90,000 tonne limit, wasn't it? A. Yes. Q. That was an obligation of the law that had been in place substantially since about 2001, wasn't it? A. Not on this consent, but yes. Q. In the previous consents; correct? A. Yes. Yes. Q. And in this consent? A. Yes. Q. On your evidence, you'd been breaching that obligation for years; correct? A. Yes. … Q. Mr Parker, it wasn't for Sell & Parker to offer to comply with the law, was it? A. I thought it was. 1. He later clarified what he meant when he agreed that S&P continued to offend "blatantly" (T424:48-50): Q. When you answer "yes" to that question, what did you mean by the company continuing to offend blatantly? A. It was in the open. We were we disclosed it, we weren't hiding anything. It was there to be seen. 1. He stated that he was "very serious" when he made the offer and he did not accept that he was angry (T319:31-46). 2. Luke Parker conceded that to the extent an officer present at the meeting responded with the words "No. We don't want you to do that", or "we don't want you to do that", he did not know to what part of his "offer" it was in response to (T323:48-50). He was cross-examined further regarding his understanding of the Departmental response (T330:16-32): Q. You didn't take from that comment that response that the department was giving Sell & Parker approval to breach condition A8, did you? A. I took it that the department was exercising its discretion not to enforce condition A8, yes. Q. You think they're the same things, do you? A. I hadn't thought about that. Q. All right. So let me ask the question again, and I'm clearly putting to you there's a difference. At that time you didn't take from that conversation, that response, that the department was giving Sell & Parker approval to breach condition A8, did you? A. Yes, I did. Q. Do you say to the Court that you took from the conversation that the department was giving Sell & Parker approval to commit an offence? A. Yes. 1. Significantly, Luke Parker accepted that he did not subsequently seek to verify his understanding of the response (T332:42-333:34): Q. It is the case that you honestly believed that the department had given you approval to breach condition A8, you didn't say anything about formalising that permission, did you? A. No. Q. You didn't ask, okay, you have just gone and said this incredibly important thing, how do we formalise that? You never say anything like that, did you? A. No. Q. Let me turn your mind then to the period after that, in September 2020. You never wrote to the department, by you I mean the company, to create a formal record of the conversation that you say occurred at the meeting, did you? A. No. Q. You gave evidence yesterday that, I'll get the exact words for you, "This was one of the most important conversations I've ever had with the regulator." Do you remember those words that you said yesterday? A. Yes. Q. You never wrote to the department to create a formal record of that incredibly important conversation, did you? A. No. Q. Importantly, nor did you write to the department to ensure that your interpretation of the response was correct, did you? A. No. Q. You never write the department a letter in these terms, I just want to make sure you understand what I'm putting to you, look, Mr Pizzolato said this at the meeting, we take that to mean that we can continue to breach condition A8, without consequence. You never wrote something to that effect to ensure that your interpretation of the conversation was correct, did you? A. No. Q. Given that this was one of the most important conversations you've ever had with the regulator, do you think that that might have been something you should have done? A. In benefit of hindsight, yes. Q. You never made a formal application to the department to modify condition A8, did you? A. No. 1. Luke Parker denied that the Independent Audit Report caused him to doubt his interpretation of the discussion at the 20 September 2016 site inspection meeting. He stated that it would not have caused him to question his understanding that the waste limit exceedance was permitted by the Department or the EPA (T347:29-38). He was cross-examined regarding why the identification of high risk non-compliance with condition A8 in the Independent Audit Report did not prompt S&P to inform Lloyd's of its understanding that S&P was permitted to exceed its waste tonnage limit (T353:17-30 and 354:01-11): Q. Could I put to you, Mr Parker, that this should have caused you great concern as the chief executive officer of the company? A. It should have caused me concern. Q. It should have resulted in you either telling the auditors let me just break it up. I don't want to put multiple things to you. It should have first of all led to you telling the auditors, "Wait a minute, the 90,000 limit isn't being exceeded in a non compliant way because the department has given us permission to do so". That's what should have happened on your version; correct? A. That could have happened, yes. Q. But you never had any such conversation with the auditors, did you, Mr Parker? A. I can't recall any conversation with the auditor. … Q. Doesn't that suggest to you it's highly unlikely that you ever emailed the auditors telling them you thought that the 90,000 tonne exceedance was permitted? What I put to you, Mr Parker, is that when one looks at the final report ‑ and I'll take you to it in a moment ‑ there's no information in that report that Sell & Parker has been excused from complying with the 90,000 tonne limit by the department. Nothing of that kind. A. I accept that. Q. Doesn't that make it highly likely that you didn't email the auditors with that information? A. I don't know. 1. Luke Parker explained that he did not think it was prudent to write to the Department to clarify whether or not S&P's interpretation was correct (T338:15-17), although he accepted that he should have done so (T338:19-25). 2. Notwithstanding that the Board Report also identified non-compliance with the consent but did not note that S&P had been excused from compliance with the 90,000tpa limit, neither that Report, nor the board meeting concerning it, prompted him to write to the Department to verify S&P's understanding that it had been exempted from compliance with condition A8 of the consent (T359:33-360:06): Q. The first one in that list is "Tonnages"? A. Yes. Q. It says here, "The issue is known by the board"; do you see that there? A. Yes. Q. Because everyone on the board knew that you were breaching the 90,000 tonne limit; correct? A. Correct. Q. Do you accept from me, Mr Parker, that there is nothing in this board report to the effect that Sell & Parker has been excused from compliance with that condition? A. I accept from you, yes, I do. Q. Can I ask this? After this board meeting, did you reach the view that your understanding that the Department was excusing you from compliance with the 90,000 tonne limit might be wrong? A. No. Q. In light of the red areas of concern that have been flagged in this report and set out in the Lloyd's report, did it cross your mind that it might be prudent to write to the Department clarification about that issue? A. No. 1. Luke Parker denied that his asserted understanding of what transpired at the 20 September 2016 site inspection meeting changed following the issuing of the first s 119J notice to S&P (T368:26-369:08; 370:01-26; 372:01-20 and 373:03-10): Q. So, Mr Parker, what you must have understood from this document is that the company was now being investigated for the commission of an offence; correct? A. Was being investigated whether it was complying with its limits, yes. Q. It's more than that. Look at paragraph 7? A. Yes. Q. That refers you specifically to an offence, doesn't it? A. Yes. Q. And then look at paragraph 8? A. Yes. Q. It makes it painfully clear that the information is being sought to "required to assist in determining whether development at the site was carried out in accordance with the conditions of the development consent"? A. Yes. Q. And the language used directly relates to the language used in the preceding paragraph? A. Yes. Q. You understood the company was being investigated for a potential offence, didn't you? A. Yes. Q. The background makes it clear that you were being investigated in terms of whether you had ‑ and when I say you, I mean the company ‑ whether the company had complied with the limit on receiving and processing waste at the site for the 2016 calendar year; correct? A. The company ‑ yeah, the Department is investigating it, so it's a yes, correct. … Q. No later than 1 December 2016, you must have realised that the assumption that you had made that the Department had exercised a discretion not to prosecute you for the 2016 exceedances was quite wrong; correct? A. No. … Q. This document made it absolutely clear that you were being investigated for an offence which referred to not complying with condition A8, didn't it? A. Yes. Q. And it must follow from that that you realised that the Department had not exercised a discretion not to prosecute you for that matter; correct? A. No. Q. Well, what did you think when you found out that the Department was investigating you for an offence under section 76A(1)(b) and section 125 of the Act? A. I thought they were gathering information. Q. Why did you think they were gathering information? For what purpose? A. I don't know. Q. The document sets it out for you, doesn't it? A. Yes. … Q. And the fact they were investigating the commission of an offence is directly contradictory, I put it to you, to the idea that they had exercised a discretion not to prosecute you for an offence. Do you accept that or not? A. No. Q. So is it your evidence that after receiving this notice, that you thought there was still an agreement in place that the department would not prosecute you for an offence by reason of the exceedances of condition A8? A. Yes. Q. I just want to understand your evidence a bit better, Mr Parker. Explain to the Court please, why it is that receiving a notice in this form, which clearly refers to an investigation of an offence in relation to a breach of condition A8, why it is that you still held a belief after receiving that notice that the department had exercised a discretion not to prosecute you for that offence? A. Cause they hadn't prosecuted us. Q. But you understood, didn't you, that the investigation of an offence is the first step towards a prosecution, didn't you? A. No. I didn't understand it. I'd no experience in that. … Q. Because you understood very well at this time that you were being investigated for an offence under those provisions with the prospect of a prosecution for that offence? A. Yes. Q. And that must have meant that your claimed understanding that the department had exercised this discretion was completely wrong? A. No. 1. He conceded that S&P had continued to exceed the 90,000tpa limit and had done so "blatantly" even though it knew it was being investigated for its contravention of that limit after receipt of the first s 119J notice (T373:31-38): Q. What I'm putting to you, Mr Parker, is that the company continued to offend blatantly after that time? A. Yes. Q. The company continued to exceed that limit when it knew it was being investigated for an offence of exceeding that limit; that's what happened, isn't it? A. Yes. 1. He accepted that at no point did S&P attempt to slow down its rate of receipt of waste at the site (T377:03-18). 2. However, Luke Parker denied that S&P was engaged in conduct in the latter part of December 2016 and throughout 2017 in the knowledge that it was committing a criminal offence (T376:01-03). 3. In re-examination, Luke Parker stated that he considered that the s 119J notice included "a couple of subjects of investigation" and identified the possible outcomes, without more (T413:09-16 and 32-38): Q. I'm sorry, sir. I'll withdraw that and ask a different question. What outcomes did you have in your mind at the time you received this notice? What other possible outcomes? A. Possible outcomes? Nothing. We could have been given a direction. We could have had a discussion. We could have had orders, possibly. We could have been issued with a fine. We could have been prosecuted. There are ‑ there are a number of things that could have happened. 1. Luke Parker stated that the Department's comments regarding the ECS reinforced his belief that it was exercising its discretion not to prosecute S&P (T424:03-15): Q. …Sir, when you read the comments that the Department had provided at page 941, response to representations you had made about the draft order, did you form any belief about whether you were or were not required to reduce your tonnage to comply with condition A8? A. I wouldn't say I formed a belief; it confirmed my belief that we didn't have to reduce our tonnage to comply with A8. Q. Why did that confirm your belief? A. Well, they talk about the fact that they agreed that the ECS was working. They had the opportunity to put an order on us to reduce our tonnages if so wanted. It seemed to me that we were working together to get the compliance, but there was no suggestion of needing to reduce our tonnages. 1. Finally, Luke Parker also provided further explanation for the delay regarding the final location of the stack (see condition A8). The stack was in a temporary location due to issues with piping (T391:30-33). He believed that the difference between the EIS modelling and the nominated velocity as built and measured was a result of flaws in Ektimo's testing, whereby the personnel failed to turn the fan off idle when conducting the test (T394:23-33). He was also aware of difficulties in the ECS testing meeting receptor criteria by reason of background values and noted that these were beyond S&P's control (T396:04-12). Measures to Avoid Re-offending 1. Luke Parker stated orally that he' was sorry for breaching the consent because to do so was illegal (T384:21-36). He accepted that his affidavit contained attempts to justify the offending conduct (T386:06-22). But again he emphasised the delay to the SSD application approval process. He believed that the approval process would take a year (T387:10). He reiterated the large number of requests for information from both regulatory agencies (T387:23-30). 2. With respect to measures that S&P has put in place to avoid re-offending, Luke Parker provided evidence that he keeps a "close eye on the volume" of the receipt of scrap metal at the site and that S&P has now lodged another SSD application to "make sure we've got plenty of headroom". He also provided evidence that S&P will respect the 350,000tpa limit until the pending SSD application is granted (T384:12-19). Francis Bethwaite Evidence 1. Bethwaite has known Luke Parker in a personal capacity for many years, principally through the Double Bay Sailing Club. Between 2013 and 2017 Luke Parker was the Commodore of the Club. Bethwaite deposed that he led the Club with distinction during this period. Bethwaite described Luke Parker as truthful and honest. Sentencing Principles The Purposes of Sentencing 1. The purposes of sentencing are set out in s 3A of the Crimes (Sentencing Procedure) Act 1999 ("CSPA") as follows: 3A Purposes of sentencing The purposes for which a court may impose a sentence on an offender are as follows: (a) to ensure that the offender is adequately punished for the offence, (b) to prevent crime by deterring the offender and other persons from committing similar offences, (c) to protect the community from the offender, (d) to promote the rehabilitation of the offender, (e) to make the offender accountable for his or her actions, (f) to denounce the conduct of the offender, (g) to recognise the harm done to the victim of the crime and the community. Statutory Matters Required to be Taken Into Account in Sentencing 1. Sections 21A(2) and (3) of the CSPA set out the aggravating and mitigating factors that the Court must consider when sentencing an offender. Relevant to the facts of this case they are as follows: 21A Aggravating, mitigating and other factors in sentencing (2) Aggravating factors The aggravating factors to be taken into account in determining the appropriate sentence for an offence are as follows: … (o) the offence was committed for financial gain… The court is not to have additional regard to any such aggravating factor in sentencing if it is an element of the offence. (3) Mitigating factors The mitigating factors to be taken into account in determining the appropriate sentence for an offence are as follows: (a) the injury, emotional harm, loss or damage caused by the offence was not substantial, … (e) the offender does not have any record (or any significant record) of previous convictions, (f) the offender was a person of good character, (g) the offender is unlikely to re-offend, (h) the offender has good prospects of rehabilitation, whether by reason of the offender's age or otherwise, (i) the remorse shown by the offender for the offence, but only if: (i) the offender has provided evidence that he or she has accepted responsibility for his or her actions, and (ii) the offender has acknowledged any injury, loss or damage caused by his or her actions or made reparation for such injury, loss or damage (or both), … (k) a plea of guilty by the offender (as provided by section 22… … (m) assistance by the offender to law enforcement authorities (as provided by section 23)… 1. A sentencing court may not take facts into account that are adverse to the interests of the offender unless those facts have been established beyond reasonable doubt. However, if there are circumstances in favour of the offender that the Court proposes to take into account, it is sufficient if those circumstances are established on the balance of probabilities (R v Olbrich [1999] HCA 54; (1999) 199 CLR 270 at 281). 2. The appropriate sentence to be imposed on S&P is to be determined by an instinctive synthesis of the relevant objective and subjective circumstances of the commission of the offences (Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 at [35]-[39], [50]-[84] and [136]-[139]). 3. Importantly, the sentence to be imposed on S&P for the commission of the offences must be proportionate to both the objective seriousness or gravity of the offences and S&P's subjective circumstances (Veen v The Queen [1979] HCA 7; (1979) 143 CLR 458 at 490 and Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465 at 472). Objective Seriousness of the Offences 1. The objective seriousness of an offence fixes the upper and lower limits of proportionate punishment. It fixes the upper limit insofar as the sentence must not exceed that which can be justified as appropriate or proportionate to the gravity of the crimes considered in light of their objective circumstances (Veen (No 2) and Hoare v The Queen [1989] HCA 33; (1989) 167 CLR 348 at 354). It fixes the lower limit because allowance for the subjective factors of the case ought not produce a sentence which fails to reflect the objective gravity or seriousness of the offences (R v Dodd (1991) 57 A Crim R 349 at 354 and R v Nichols (1991) 57 A Crim R 391 at 395). 2. The objective seriousness is to be determined by reference to the nature of the offences and not by reference to matters that are personal to the offender (Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120 at [27]). 3. A determination of the objective seriousness or gravity of the offences requires the consideration of the factors discussed below. 4. The prosecutor submitted that the objective seriousness of the offences was towards the upper end of the moderate range for these types of offences having regard to the nature of the offences, especially the terms of condition A8 of the consent and S&P's state of mind at the time of their commission. Nature of the Offences 1. The nature and purpose of the provision that has been contravened, and its place in the statutory scheme, are illustrative of the objective seriousness of an environmental offence (Bentley v BGP Properties Pty Ltd [2006] NSWLEC 34; (2006) 145 LGERA 234 at [168]-[172]; Plath v Rawson [2009] NSWLEC 178; (2009) 170 LGERA 253 at [49] and Chief Executive, Office of Environment and Heritage v Orica Pty Ltd; Environment Protection Authority v Orica Pty Ltd [2015] NSWLEC 109 at [59]). 2. The objects of s 5 of the EPAA identify the purpose of the offence provisions as follows: 5 Objects The objects of this Act are: (a) to encourage: (i) the proper management, development and conservation of natural and artificial resources, including agricultural land, natural areas, forests, minerals, water, cities, towns and villages for the purpose of promoting the social and economic welfare of the community and a better environment, (ii) the promotion and co-ordination of the orderly and economic use and development of land, … (vi) the protection of the environment, including the protection and conservation of native animals and plants, including threatened species, populations and ecological communities, and their habitats, and (vii) ecologically sustainable development, and … (c) to provide increased opportunity for public involvement and participation in environmental planning and assessment. 1. The nature of the offence of carrying out development without consent contrary to s 76A(1) of the EPAA was articulated by Preston J in Secretary, Department of Planning and Environment v Boggabri Coal Pty Limited [2014] NSWLEC 154 (at [17]-[19]): 17 One of the principal means by which these objects are achieved is by the Act controlling the carrying out of development depending on its likely impact on the environment. Environmental planning instruments specify the purposes for which development may be carried out without development consent or only with development consent and for which development is prohibited. A person wishing to carry out development that may be carried out only with development consent must lodge a development application with the relevant consent authority for development consent to carry out that development. Depending on the type of development, the development application will need to include information or be accompanied by documents that assess the impacts, including environmental impacts, of the development and the means to mitigate these impacts. Again, depending on the type of development, there are differing procedures for public notification and public participation, including making submissions objecting to the development in the development application. There may need to be consultation with other regulatory authorities. The consent authority, in determining the development application, is required to consider a range of matters, including the impacts of the proposed development on the environment, and to impose relevant and appropriate conditions of consent. Again, depending on the type of development, there are different rights of appeal against a decision of a consent authority to refuse or to approve development consent. 18 There is a need for the upholding of the integrity of the system of planning and development control. The system depends on persons taking steps to obey the law by ascertaining when development consent is required, obtaining development consent when required, and carrying out development in accordance with any development consent obtained: Gittany Constructions Pty Ltd v Sutherland Shire Council [2006] NSWLEC 242; (2006) 145 LGERA 189 at [104], [105] and Director-General, Department of Environment and Climate Change v Rae [2009] NSWLEC 137; (2009) 168 LGERA 121 at [18]. 19 Offences that undermine the integrity of the regulatory scheme are objectively serious. Use of the criminal law ensures the credibility of the regulatory scheme. 1. Similarly, in Pittwater Council v Scahill [2009] NSWLEC 12; (2009) 165 LGERA 289 his Honour observed that (at [46]): 46 There is a need for the upholding of the integrity of the system of planning and development control. This system depends on persons taking steps to obey the law by ascertaining when development consent is required and then obtaining development consent before carrying out development: Byron Shire Council v Fletcher (2005) 143 LGERA 155 at [60]-[61]; Cameron v Eurobodalla Shire Council at [72]-[80]; Byres v Leichhardt Municipal Council [2006] NSWLEC 82 at [83], [85]; Gittany Constructions Pty Ltd v Sutherland Shire Council at [104]; and Garrett v Freeman (No 5) (2009) 164 LGERA 287 at [58]. Development must be carried out in accordance with the terms of the development consent obtained: Gittany Constructions Pty Ltd v Sutherland Shire Council at [105]. 1. More recently, in Hornsby Shire Council v Henlong Property Group Pty Ltd (No 2) [2019] NSWLEC 17 Robson J remarked that (at [40]): 40 Planning approvals are one means by which the State government seeks to achieve these objects, and to ensure the efficient and sustainable development of NSW. These approvals are central to maintaining the integrity of the NSW planning system, and this informs the consideration and assessment of the seriousness of an offence. Offences which undermine the integrity of the regulatory scheme are objectively serious: see Secretary, Department of Planning and Environment v Boggabri Coal Pty Limited [2014] NSWLEC 154 at [19]. 1. Most apposite, in Secretary, Department of Planning, Industry and Environment v Wollongong Recycling (NSW) Pty Ltd [2020] NSWLEC 125; (2020) 245 LGERA 241 the defendant was sentenced for contraventions of ss 76A(1)(b) and 125(1) of the EPAA. The contraventions arose from the defendant's exceedances of the limit of waste that could be received or processed on its site in one calendar year under the relevant consent. In that case Preston J stated (at [12]-[13]): 12 The only harm caused by the commission of the offence was to the objectives and integrity of the regulatory system of planning and development control under the EPA Act. Carrying out development without consent or not in accordance with a consent tends to undermine the objects of the EPA Act and the due processes prescribed for prior application, assessment and approval of the carrying out of development: Council of the City of Sydney v Adams [2015] NSWLEC 206 at [38]. 13 Wollongong Recycling's conduct in breaching the 30,000 tonnes waste limit fixed by condition A7 of the development consent, without waiting for the final occupation certificate and the Secretary's approval of the Operational Environment Management Strategy, was contrary to the legislative objective expressed in the offence and impeded the attainment of the objects of the EPA Act. 1. The prosecutor submitted that as a major operator in NSW's metal recycling industry, S&P's capacity to negatively impact the integrity of the planning system in the State was considerable. In addition, a substantial expansion of the waste received on site in the context of known environmental risks (by dust, odour, noise and vibrations) in a populated area required S&P to have an attitude of respect for regulatory processes. By not seeking approval to increase its waste limit prior to doing so, the consent authority was denied the opportunity of assessing the increased activity and imposing appropriate conditions to prevent or mitigate potential adverse environmental impacts. The offences represented substantial and ongoing breaches of condition A8 of the consent which, as the prosecutor contended, was a constraint clearly designed as a safeguard against environmentally detrimental activity. 2. It is somewhat of a truism that a contravention of a condition of a development approval tends to undermine the integrity of the planning system. S&P contended that this axiomatic consequence could not assist in the characterisation of the objective seriousness of the offences, and moreover, that it could not amount to a circumstance of aggravation because the Court cannot take into account an aggravating feature that is expected to result from the commission of the offences (citing R v Youkhana [2004] NSWCCA 412 applied in R v Solomon [2005] NSWCCA 158; (2005) 153 A Crim R 32 at [20] and Elyard v The Queen [2006] NSWCCA 43 at [42]). 3. However, as the prosecutor clarified, a consideration of the nature of the offences by the Court was not being relied upon as a factor in aggravation (T532:03-10), but serves to describe how S&P's offending conduct subverted the objects of the EPAA. There is nothing, in my view, impermissible about the prosecutor's submission that would preclude the nature of the offences being taken into account in the manner described by the prosecutor. 4. The prosecutor submitted that the background to the formulation and imposition of condition A8 of the consent was relevant to the nature of the offending and S&P's state of mind (considered in detail below), and therefore, an assessment of the objective seriousness of the offences. 5. In addition to the detailed chronology set out earlier in the judgment, the prosecutor relied upon the 22 April 2015 letter (extracted above), as evidence of S&P's cavalier approach to environmental issues associated with the SSD application. This attitude was evidenced by: 1. the substantial resources that the EPA had been required to expend on regulating S&P's operations at the site; 2. the numerous complaints about odour, smoke, and dust emissions from the site since January 2013. The EPA had conducted over 33 inspections of the site and the surrounding environment as a consequence; 3. the need for improved technology to prevent and mitigate the adverse environmental impacts of the operation of the site; 4. the numerous mitigation measures which were available but that had not been incorporated into S&P's project design; and 5. the significant risk of adverse air quality impacts unless the development the subject of the SSD application was re-designed to include additional controls. 1. As Luke Parker accepted, S&P first made inquiries regarding an expansion of its capacity for waste processing on the site in 2011 (T214:03-05) and was informed at that time that an EIS would be required (T217:12-24). However, S&P was already exceeding the 90,000tpa limit as early as 2011. 2. Although, S&P has not been charged for exceedances pre-dating the charge period, the prosecutor submitted that these exceedances nevertheless disentitle it from leniency on the basis that the commission of the offences are not an uncharacteristic aberration (citing LN v The Queen [2020] NSWCCA 131 at [40]-[60] per Basten JA and [103] per Hulme JA agreeing and authorities cited thereat). 3. S&P rejected the prosecutor's characterisation of its conduct on the basis that: 1. as the evidence demonstrated, it had taken numerous steps over several years with the assistance of qualified consultants to seek authorisation for the increased receipt of scrap metal at the site and to address the issues raised by the regulators, particularly in relation to air quality. These measures included the design, installation, commissioning and modelling of the first ECS of its kind in Australia; 2. with respect to the ECS, it was important to understand the nature of the "exceedances" identified and relied upon by the regulators. The 2015 ERM Report demonstrated that on the occasions when receptor trigger levels were exceeded for the maximum 24-hour average PM10 concentrations, this resulted from background levels of PM10 in the locality, which, regardless of the operation of the facility, were already at or above maximum levels; 3. in relation to the location of the ECS stack, S&P could only meet the EPL condition to commission the ECS by 30 September 2016 if it placed the stack in a temporary location. The stack could not be commissioned in its final location because S&P required a construction certificate. This further delayed compliance with condition A8 of the consent; 4. S&P was not less than diligent or competent in its prosecution of its SSD application or in attempting to meet the concerns of the regulators. Luke Parker believed that the SSD application would take a year to process, whereas it took almost seven; 5. the contravention of the limit imposed by condition A8 of the consent did not have the effect of precluding a thorough environmental assessment of the increased waste capacity. On the contrary, as the evidence established S&P submitted itself to a rigorous assessment process, including air quality modelling, over a period of several years; 6. there was no defiance of the authorities and at all times S&P cooperated with the regulators. S&P attempted to implement further improvements, and undertook assessment and modelling in relation to air quality at the site. It attended meetings, invited relevant parties to visit and inspect the site, provided independent consultant reports and engaged extensively with the regulators; and 7. before S&P's SSD application was approved, it disclosed to both the EPA and the Department that it was operating in excess of the 90,000tpa limit. Both regulators were aware of this fact when condition A8 of the consent was imposed and at all times thereafter. 1. The dispute between the parties regarding when the ECS was commissioned for the purpose of condition A8(a) of the consent is relevant to both the nature of the offences and S&P's state of mind at the time of the commission of the offences. 2. S&P accepted that it had neither satisfied the second of the pre-conditions in condition A8 (the requirement to obtain the Secretary's approval for the operation of the ECS) nor the third pre-condition (the requirement that a final OC be issued), however, it contended that, as a matter of substance (that is, the principal pre-condition in condition A8), the ECS was commissioned in accordance with condition B20 of the consent during the period from May to August 2016, that is, prior to the commission of the offences. S&P argued that the fact that the ECS stack was temporarily positioned next to the hammer mill did not derogate from the proposition that the ECS was in fact commissioned during the May to August 2016 period, as stated in the 2016 Commissioning Report. That Report also concluded that it was found to be operating satisfactorily as an air quality control measure. For the purpose of conditions A8 and B20 of the consent the ECS was, therefore, effectively commissioned during this period. 3. S&P relied upon the following facts in mitigation to explain the context in which the exceedances had occurred, namely, that: 1. in 2013 the condition imposing a 20 year limit on the 2001 consent was removed by the Court over the opposition of the EPA; 2. when the SSD application was lodged on 17 March 2014 seeking to increase its capacity, in addition to the EIS, an air quality assessment prepared by ERM was included with it; 3. a revised EIS and air quality report prepared by ERM was submitted by S&P on 31 July 2014 to the EPA; 4. when the EPA refused to issue GTAs in October 2014, this was because it required additional air quality controls and management. A further air quality assessment was prepared by ERM in December 2014 and a response to the EPA was provided on 24 February 2015; 5. the 22 April 2015 letter suggested the installation of an ECS. Accordingly, S&P commissioned Mecone to manage its response and ERM to prepare a further revised air quality assessment report. Although not required to do so, S&P commissioned ERM to prepare an air quality health risk assessment to address the concerns raised by the EPA; 6. in order to meet the EPA's concerns about air quality, S&P commissioned and installed a novel ESC in the hammer mill for which there was no precedent in Australia; 7. in addition, S&P proposed further measures including the sealing of the surface of the site, the redesign of the site, the purchase of new equipment and changing the way trucks were loaded and unloaded at the site; 8. the ECS was installed and became operational in November 2015. ERM modelled the air emissions from the stack after treatment by the ECS, which showed, in theory, that the system would be effective in achieving compliance with the EPA's air quality requirements; 9. any modelled exceedances occurred as a result of background levels of particulate matter in the locality that, irrespective of the operation at the site, would already be at or above maximum levels. One notable example was the "Red Dust Day" in Sydney in 2009. The modelled parameters were not specifications, and in any event, dust monitors were installed on the site to ensure that no exceedances were caused by the operations at the site; 10. S&P met with regulators on 17 August 2015 and following that meeting, it submitted an acoustic report, a further revised air quality report prepared by ERM and a stormwater management concept plan also prepared by ERM, to the regulators, all commissioned in response to commentary by the EPA; 11. it was not until 18 months after the SSD application had been lodged that GTAs were issued by the EPA; 12. S&P disclosed to the EPA in July and October 2015 that it was exceeding the 90,000tpa limit of waste. Furthermore, the Department knew that the annual limit was being exceeded by S&P when it imposed condition A8; 13. the ECS was designed and installed in the latter half of 2015. During January 2016 it appeared to be working properly; 14. Ektimo was retained by S&P to test the ECS, which was carried out on 3 February 2016. Volumetric flow was lower than predicted, and therefore, the fans were improved to boost air flow; 15. the EPA modified S&P's EPL in April 2016 by imposing a condition that S&P commission the ECS by 30 September 2016. In order to comply with the condition, the ECS had to be commissioned with its stack in a temporary location in order to allow other building work to be completed; 16. the ECS was tested by Ektimo again on 14 June 2016. The results were passed to ERM with a request to carry out air modelling. ERM provided that report on 30 August 2016 (namely, the 2016 Commissioning Report), which was passed on to the EPA on 19 September 2016. The EPA considered the Report premature because the stack was not in its final location; 17. although S&P accepted that the EPA stated in its email dated 13 October 2016, that "the ECS has not yet been constructed to the DP&E design criteria…is different from what was approved", it challenged the correctness of the EPA's view in circumstances where: 1. the ECS was not required to exactly replicate the parameters which had been modelled and there was no indication in the EPA's comments that differences as to the height and diameter of the stack were material. On the contrary, the EPA had indicated that it was satisfied that the concentration limits in the EPL were met. Neither the EPA nor the Department gave S&P any indication why differences in the parameters were significant; 2. modelled exceedances identified by the EPA were not due to emissions from the stack or from the site, but were attributable to high background levels of particulates, including on days such as the Red Dust Day of 2009 (as evidenced by Table 5.5 and the conclusion of the 2016 Commissioning Report); 3. the exceedances of predicted zinc were not "exceedances" of any limit, rather the measured values were higher than those that had been modelled. In any event, the EPA's requirements had been met; and 4. the 2016 Commissioning Report was only deficient insofar as Ektimo made an error regarding the velocity (fan speed) testing because it tested while the fan was on idle; 1. the ECS was only approved for operation by the Department after S&P commenced Class 1 proceedings; and 2. during the period from May 2016 to 2018 the ESC was in operation and the only thing that changed was the location of the stack. 1. A review, however, of the evidence exhaustively surveyed above in the judgment discloses that condition A8 required various statutory preconditions to be met before approval could be granted to S&P to increase its receipt of waste tonnage almost four‑fold. The reason why these preconditions were persistently not met by S&P was not the fault of the regulators, but was the fault of S&P, and moreover, were repeatedly communicated to S&P by the EPA and the Department. For example: 1. S&P initially made enquiries in relation to expanding the capacity of its operation in 2011; 2. at that time it was informed that an EIS would be required, with the key issues being air quality and odour, handling, transport, production and storage, and mitigation and monitoring; 3. between the SSD application being lodged in March 2014 and April 2015, there was considerable correspondence between S&P and its advisers, the Department and the EPA in respect of the application. In that correspondence numerous concerns were raised in relation to air quality impacts arising out of the proposed capacity increase; 4. the expansion of its operation required permission under S&P's EPL which was managed by the EPA. The SSD application was being managed by the Department. It was the EPA who granted GTAs, which were, in effect, recommended conditions of consent; 5. after reviewing the draft EIS, the Department informed S&P that a revised EIS was required and that key issues had not been adequately addressed or required additional information, especially with respect to air quality, noise and vibration. The EPA advised that odour was also a problem emanating from the hammer mill. It required a full odour and air quality assessment including emission controls and mitigation measures; 6. this resulted in ERM providing a revised EIS and an air quality assessment in July 2014. A process of submissions by various stakeholders and responses by ERM ensued. In its submission, the EPA raised specific concerns about toxic air pollutants and dust emitted from the hammer mill and associated processes. The EPA required an air quality management plan to be prepared; 7. ERM revised its modelling and provided an updated air quality assessment. ERM noted that toxic air pollutants and dust were within relevant acceptable criteria and resisted production of an air quality management plan at that stage; 8. the EPA subsequently wrote to the Department in February 2015 because not all of the required information concerning air impacts had been provided by ERM, and therefore, it was declining to grant GTAs. It provided detail on the additional information required. The EPA offered to meet with S&P to discuss compliance with criteria further; 9. the EPA continued to be concerned about dust and odour. Complaints about both were received. ERM purportedly responded by addressing the EPA's concerns, however, on 22 April 2015 the EPA communicated that it was of the view that the hammer mill was not operating in a satisfactory manner and that it could not support the proposed increase in processing unless and until there was a legally enforceable proposal to address the environmental impacts of its operation. The EPA noted a long history of "poor environmental" compliance and S&P's failure to completely address the pollution issues associated with the hammer mill; 10. Luke Parker could not recall seeing the 22 April 2015 letter but thought that it was possible that he had seen it or been informed of its substance. He agreed that as CEO he would have wanted to be informed of its contents. Given the importance of the letter, and given that at the time he was concerned that the EPA was not satisfied that its concerns regarding potential air quality impacts had not been addressed, I find that he either read the letter or was aware of it contents; 11. the 90,000tpa receipt limit had already been exceeded and had been exceeded as early as 2011; 12. Mecone, engaged by S&P to address environmental mitigation measures, provided a response to the 22 April 2015 letter. After a meeting with the EPA and the Department in May 2015, it was Mecone that proposed a gas collection system for the hammer mill (that is, the ECS); 13. on 3 September 2015 S&P provided a further air quality assessment by ERM addressing issues raised by the EPA, which resulted in the EPA granting the GTAs. The EPA issued the GTAs notwithstanding that the EPA was still not in a position to assess the EIS because not all air and water quality control data had been provided. The GTAs stated that before capacity could be increased, the ECS had to have passed post commissioning proof of performance trials to the satisfaction of the EPA; 14. when the consent was granted on 12 November 2015, it included condition A8 which was in similar terms to the GTAs. However, S&P continued to receive in excess of 90,000tpa of material on site. Rather, it sought to amend the condition before it was issued to permit it to continue its current operations, a proposal rejected by the Department; 15. the 2016 Commissioning Report was a flawed document for the reason identified above. This meant that that Report was not accepted as adequate by either the EPO or the Department, which further delayed S&P satisfying the conditions of the consent (in particular, conditions B20 and B21, and therefore, A8 and A7); 16. in 2016 S&P submitted various draft environmental management plans, including air quality management plans, as it was required to do under the consent. In September 2016 the Department told S&P that the plans were inadequate and required revision and that the Department did not have the capacity to continually review them. It recommended that S&P obtain suitably qualified assistance; and 17. a satisfactory air quality management plan was not provided, as requested by the EPA in July 2015, until sometime between March and July 2017, and therefore, not approved until July 2017. Conclusion Regarding the Nature of the Offences 1. S&P described the first of the three preconditions imposed by condition A8, the commissioning and testing of the ECS in accordance with condition B20 as the "primary and substantive" precondition imposed by condition A8 because it was the precondition that addressed the air quality issues underpinning the imposition of the interim limits imposed by that condition. The other two preconditions (namely, that the hammer mill had to be approved by the Secretary for operation and that a final OC had to be issued for the development) were described as "administrative". 2. In my opinion, S&P's characterisation of condition A8 of the consent as including "primary" and "administrative" pre-conditions does not assist it. It remains the fact that S&P was in breach of the condition during the charge period because S&P received more than 90,000tpa of waste when there had been no satisfaction of all three preconditions of condition A8, and therefore, the condition itself. Although S&P submitted that "as a matter of substance" the ECS was commissioned in conformity with condition B20 of the consent between May and August 2016, the fact remains that because the stack was not in its final location, the first precondition of condition A8 was not met. 3. S&P was obliged to comply with these requirements before it exceeded the 90,000tpa limit and it did not do so. The fact that the ECS's performance met the EPA's requirements and complied with the relevant air quality regulations does not derogate from this conclusion. 4. It is not for a proponent to excuse itself from complying with the law because it perceives that it has substantially complied with the more important aspects of a condition of its consent or because it is frustrated by what it considers to be delay by consent authorities. Such an attitude is incompatible with the integrity of the regulatory planning and environmental regime in this State. S&P's failure to adhere to the 90,000tpa limit fixed by the consent, undermined the objects of the EPAA, particularly given the scale of the exceedances of the 90,000tpa limit and the status of S&P as one of the largest metal recyclers in this State. 5. The facts relied upon by S&P were put forward in order to support the contention that, in effect, they were taking measures to comply with condition A8 and that it was the dilatory, if not unreasonable, actions of the Department and the EPA that resulted in the breach of the tonnage limit occurring. This was reflected in the evidence of Luke Parker. 6. But even if there was delay by the Department and the EPA, which I do not accept, this neither permitted S&P to contravene the law nor did it in some way lessen S&P's culpability. If, as Luke Parker deposed, reducing costs (including staffing costs) would have been the consequence of not committing a criminal offence, then so be it. Compliance with the law was not optional or dependant upon the economic circumstances of S&P. 7. In any event, I accept the prosecutor's submission that the evidence demonstrates that the multiple requests for information by the regulatory agencies were caused by S&P not providing sufficiently comprehensive responses or reports to satisfy initial requests for information. 8. In short, it was not up to S&P to determine that it had complied, either wholly or "substantially" with condition A8 and that it could increase the tonnage of waste received on site in advance of formal approval being granted to do so. Such an attitude compromised the integrity of the regulatory system in a material way and may be taken into account by the Court in determining the appropriate penalty to be imposed upon S&P. Sell & Parker's State of Mind at the Time of the Commission of the Offences 1. The offences under s 125(1) of the EPAA are strict liability offences and therefore intention is not an element. But the state of mind of S&P during the commission of the offences is nonetheless relevant to the question of penalty. A strict liability offence committed intentionally, recklessly or negligently "exacerbates the objective culpability of the defendant" (Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 at 700A-700E; Gittany Constructions Pty Ltd v Sutherland Shire Council [2006] NSWLEC 242; (2006) 145 LGERA 189 at [123] and Rawson at [98]). 2. The prosecutor submitted that the Court should find that S&P committed the offences intentionally, and moreover, in contumelious disregard of the tonnage limits imposed by the consent. In light of the evidence, I agree. The Application of the Principle in De Simoni 1. The state of mind of S&P at the time of the commission of the offences gives rise to the question of whether the principle in R v De Simoni [1981] HCA 31; (1981) 147 CLR 383 applies (at 389). 2. The application of the principle in De Simoni was summarised in Environment Protection Authority v Sydney Water Corporation [2019] NSWLEC 100 (at [153]): 153 From the authorities, the two propositions that have emerged from De Simoni are that (as summarised by the learned author Stephen Odgers in the text earlier cited, p 184 at [3.123]): (a) first, no one should be punished for an offence for which they have not been charged; and (b) second, a sentencing court cannot take into account circumstances of aggravation which would warrant conviction for a more serious offence than that with which the offender had been convicted. 1. The existence of a more serious offence under the EPAA for which a tier 1 monetary penalty applies (see s 125A(1) and (2) of the EPAA), namely, the intentional commission of an offence under s 125(1) of the EPAA, attracts the application of the De Simoni principle to the charges to which S&P has pleaded guilty. 2. However, in Sydney Water Corporation the Court further observed as follows (at [158]-[159]): 158 The principle in De Simoni will not be breached if the Court takes in account conduct not to punish the offender for that conduct, but for some other reason such as to assess the objective seriousness of the offence for which the offender has been convicted (Weininger v R [2003] HCA 14; (2003) 212 CLR 629 at [31], Bourke at [70] and Einfeld v R [2010] NSWCCA 87; (2010) 200 A Crim R 1 at [146] per Basten JA) provided that the conduct is not entirely separate and distinct from that giving rise to the offence charged but is an incident of the conduct giving rise to the commission of the offence (Wilkins v R [2009] NSWCCA 222 at [34]-[35], Bourke at [55], [62] and [70] and Adams v R [2011] NSWCCA 47 at [29]-[35]). 159 Similarly, the principle is not breached if the otherwise offending conduct is considered for the purpose of assessing the need for specific deterrence (Thuong Nguyen v R [2012] NSWCCA 184 at [30]-[31]). Nor is it contravened if the offender is punished for facts that merely satisfy the elements of the offence for which they have been convicted even if one of those elements amounts to a circumstance of aggravation sufficient to establish guilt for another more serious offence (Turkmani v R [2014] NSWCCA 186; (2014) 244 A Crim R 402 at [33]-[46]). 1. Accordingly, while the Court cannot take into account whether S&P committed the offences intentionally as an aggravating factor in the determination of an appropriate sentence, the De Simoni principle does not preclude the Court from considering S&P's state of mind in either assessing the objective seriousness of the offences or when considering the need for specific deterrence as an aspect of the sentencing exercise. 2. S&P accepted that it deliberately – that is, intentionally – received a volume of scrap metal in excess of the 90,000tpa limit imposed by condition A8 in each of the 2016 and 2017 calendar years. Therefore, while not considered as a factor in aggravation, the Court nevertheless has regard to S&P's intentional commission of the offences. 3. However, this is not the end of the matter. This is because S&P further contended that this was not a complete or balanced characterisation of S&P's state of mind at the time that the offences were committed because of what transpired at the 20 September 2016 site inspection meeting and taking into account events subsequent to that meeting. S&P also strongly refuted any suggestion that the offending conduct was in any way contumelious. 4. S&P submitted that at the 20 September 2016 site inspection meeting: 1. Luke Parker disclosed that S&P was processing around 4,000t of scrap metal per week and was exceeding the 90,000tpa consent limit and that it had been doing so for some time. He offered to reduce S&P's tonnage to the limit prescribed in the consent immediately to the EPA and the Department, but went on to state that if it did so it would have to lay off 50 staff ("the first consequence"); 2. to which a Departmental officer, probably Pizzolato, gave the Departmental response; and 3. Luke Parker also identified a second consequence of strict compliance with the waste limit stipulated in the consent, namely, that it would decimate the NSW steel industry and construction industry because steel mills needed S&P product to supply the construction industry ("the second consequence"). 1. S&P contended that the Department accepted Luke Parker's offer in order to avoid the two consequences referred to above, and that as a consequence, S&P continued to breach its tonnage limit. 2. As the evidence discloses, notwithstanding that he initially professed to having no recollection of who made that representation, it was Pizzolato who responded by saying, "No. We don't want you to do that" or "we don't want you to do that" (neither party attached any importance to whether the word "no" was uttered or not) (T128:09-23). 3. The prosecutor relied upon the inspection notes drafted by Bourne and Dingle, which did not record any response to Luke Parker's purported offer or two consequences. Pizzolato's inspection report was broadly consistent with Bourne's report (T119:33-34; 119:38; 119:16-19 and 153:29-30). 4. The prosecutor therefore urged the Court not to accept Luke Parker's version of events given that he deposed to the contents of his affidavit from memory nearly five years after the relevant discussion took place. It emphasised inconsistencies in his evidence regarding the precise words spoken at the 20 September 2016 site inspection meeting and in his ROI (T295:38-42; 296:18; 297:07-09; 297:38-41; 299:13-29; 302:22-303:01 and 299:32). Ultimately, Luke Parker himself agreed that in 2021 he did not have a precise recollection of the words used during the 20 September 2016 site inspection meeting (T303:05). 5. By contrast, S&P submitted that in light of Pizzolato's oral evidence, a reasonable inference was that he had deliberately chosen not to record the Departmental response. This was because Pizzolato could give no sensible (or any) explanation to the Court as to why he had not recorded the response. As S&P asserted, not only could Pizzolato recall the Departmental response, he understood the significance of Luke Parker's 'offer' and the two consequences that he outlined (T133:15-134:06). 6. S&P further contended that Dingle's omission of the Departmental response from his evidence was not mere inadvertence. The Court should therefore also infer that Dingle was aware that one of the officials present at the 20 September 2016 site inspection meeting had provided the Departmental response and that he had also deliberately omitted to record it. This was because: 1. Dingle was an experienced investigator; 2. as acknowledged by Dingle, the exchange was significant (T77:28-33); 3. the response was omitted from both the first and second Dingle affidavits (T78:15-23 and 79:04-39); 4. in cross-examination, Dingle accepted that there had been a response to Luke Parker's disclosure and the two consequences. Dingle had initially accepted that it was an "offer" (T75:12-15), however, he later rejected this characterisation (T78:03-08). It was not recorded in his affidavit because he did not consider its inclusion "appropriate" (T78:15-23 and 79:04-39); 5. Luke Parker had communicated his understanding of what had occurred at the 20 September 2016 site inspection meeting to Dingle in his ROI and Dingle did not query his recollection, especially in circumstances where he had told Luke Parker that Ritchie was not present at the 20 September 2016 site inspection meeting; 6. he did not refer to Luke Parker's ROI evidence in his affidavit and said in cross-examination that he first became aware of Luke Parker's evidence regarding what was said at the 20 September 2016 site inspection meeting during a pre-hearing video conference, not during his interview with him (T101:12-14); and 7. in drafting the second Dingle affidavit more than four years after the 20 September 2016 site inspection meeting, Dingle purported to recall, for the first time, that he responded to Luke Parker with words to the effect of "the Department is primarily here today to discuss your compliance with your conditionally approved State Significant Development". 1. The prosecutor submitted that Bourne's inspection report was a reliable account of what was said. By contrast, S&P submitted that neither Bourne's affidavit nor his inspection report provided a sequential account of the 20 September 2016 site inspection and meeting. This was not surprising given that his inspection report only recorded words spoken by Bourne and S&P officers. 2. I find beyond all reasonable doubt that at the 20 September 2016 site inspection meeting, in response to Luke Parker's purported offer and at least the first consequence, an officer of the Department, namely, Pizzolato, responded by stating, "No. We don't want you to do that" or "we don't want you to do that". I have reached this finding for the following reasons: 1. despite some inconsistencies as to the exact words spoken at the 20 September 2016 site inspection meeting, Luke Parker has provided consistent evidence that such words were spoken. For example, as early as his interview with Dingle he recalled such a statement being made (notwithstanding that in his ROI he incorrectly identified Ritchie as the person who made it); 2. Pizzolato corroborated Luke Parker's evidence that such words were spoken; and 3. Dingle and Bourne both accepted that it was possible that the words were stated notwithstanding that they did not record them. 1. It follows that I do not accept the statement given by Luke Parker in his ROI (at Q/A348) that someone from the Department said, "keep doing what you are doing" (it is not corroborated by other evidence before the Court on this issue and Ritchie was not present at the meeting), or that at any time words other than those provided for in the Departmental response were uttered at the 20 September 2016 site inspection meeting. 2. I also find that, consistent with the body of evidence referred to above, the first consequence and second consequence were stated by Luke Parker at the 20 September 2016 site inspection meeting. Notwithstanding cross-examination by the prosecutor on discrepancies between what Luke Parker said in his ROI and his affidavit in relation to these two consequences, ultimately little came of the challenge. 3. More important, however, is the meaning to be attributed to the exchange that took place at the 20 September 2016 site inspection meeting, and in particular, the meaning to be ascribed to the Departmental response. Did Luke Parker's Words Constitute an Offer That Was Accepted by the Department or a Threat? 1. The prosecutor submitted that Luke Parker's affidavit evidence suggested that his representation, was not an offer but a threat. It was open to the Court to find that he knowingly issued a challenge, backed up with a threat, that if he was made to comply with the 90,000tpa limit that he would make 50 people redundant and that he would decimate the steel industry, and moreover, that these consequences would, as a matter of inference, lie at the feet of the Department. This was consistent with the evidence of Dingle and Pizzolato. It was Dingle's evidence that Luke Parker was agitated when he said these words and Pizzolato recalled a negative change in Luke Parker's behaviour when he made the statement. 2. In response, S&P contended that through the Departmental response, the Department had communicated to Luke Parker that it did not want S&P to reduce its tonnage to 90,000tpa because of the likely consequences, and that S&P acted upon that information. It submitted that if the Court accepted the position advanced by it as to what occurred at the 20 September 2016 site inspection meeting, it would also accept that, through Luke Parker, S&P formed a genuine and reasonably held belief that the Department had chosen to exercise its discretion not to require S&P to cut back its capacity to meet the limit imposed by condition A8 and that this position continued until the conclusion of 2017. This was not only highly material to the assessment of S&P's state of mind in committing the offences, it was a mitigating factor in its own right. 3. According to S&P, Pizzolato clearly understood the offer made by Luke Parker and the implications of not accepting it. The evidence establishes that Pizzolato understood that the Department was able to exercise a discretion not to insist that the 90,000tpa limit had to be complied with. It relied upon the following exchange with Pizzolato (T133:10-13): Q. You agree, don't you, that the department could essentially have said, "Yes, slow down the processing to 90,000 tonnes. We want you to do that", or, as it turns out, what was actually said, "No, we don't want you to do that"? A. Yes. 1. S&P further argued that it was not open to the prosecutor to advance a case in closing address that was contrary to the evidence of Pizzolato, especially in circumstances where: 1. Pizzolato did not record the full conversation in his notes or affidavit. This invited an inference that at the time that he prepared both, he recognised the significance of the Departmental response and that he deliberately chose not to record it. As noted above, Pizzolato could give not give any explanation as to why he had omitted the response from his recorded material; 2. in his discussion of Luke Parker's disclosure of the breach of the tonnage limit and his offer with other officers and stakeholders in the Department (for example, Dingle, Appleton and Ritchie), it made no sense to have omitted the Departmental response (T133:15-134:06); 3. Dingle's notes failed to make reference to the offer or the Departmental response. This was not mere inadvertence and his explanation that he did not record every detail of every conversation was not credible; 4. Dingle's affidavits record the offer – which he characterised as a "statement" (T78:03-08) – but not the Departmental response. Dingle stated that he did not think that it was "appropriate" or "necessary" (T78:15-79:39) to record it and that it was not his role in the Department to make any comment upon it (T75:12-15). This was therefore a deliberate omission by him; 5. Dingle's response recorded in his second affidavit that "the Department is primarily here today to discuss your compliance with your conditionally approved State Significant Development" was recent invention more than four years after the 20 September 2016 site inspection meeting; 6. during Luke Parker's ROI, Dingle did not take issue with Luke Parker's account of the offer or the Departmental response at the 20 September 2016 site inspection meeting. Rather, he took issue with the fact that Ritchie was not at that meeting; 7. Dingle ultimately agreed that Luke Parker's disclosure of S&P's breach of the consent was significant and so too was the offer, and that it ought to have been recorded (T86:25-50); and 8. in comparison to Pizzolato and Dingle, Bourne did record the breach disclosure, the offer and the first consequence in his inspection report. He agreed that it was a significant statement, however, he did not record the Departmental response. 1. S&P submitted that it is neither uncommon, nor unreasonable, for a consent authority to exercise its discretion not to enforce a condition of consent, particularly where, as in the present case, there is no perceived material adverse environmental consequences of non-compliance and the consent holder is working with the regulator to regularise an existing operational capacity. S&P submitted that the Court should have regard to S&P's belief that its ongoing operations did not carry with it any significant risk of environmental harm. S&P submitted that the issues facing NSW's steel industry, following the demise of a principal competitor, and the steps taken by S&P to design, construct and install the ECS, would have informed the Department's decision to exercise its discretion not to enforce the tonnage limit. It is against this background that the Court should consider Luke Parker's oral evidence that he thought it was for S&P to offer to comply with the law. 2. S&P emphasised that in the period following the 20 September 2016 site inspection and meeting, at no time did the Department direct or request S&P to cease or reduce its rate of the receipt of scrap metal at the site. The Department's letter dated 4 August 2017, confirmed Luke Parker's belief that S&P was not required to reduce its tonnage to comply with condition A8 because in that correspondence the Department had agreed that the ECS was operating effectively and the letter did not state that S&P had to reduce its tonnages (T424:11-15). 3. Furthermore, the s 119J notice issued on 1 December 2016, was directed to other non-compliances, and therefore, did not put S&P on notice that it was being investigated for contraventions of condition A8. Luke Parker considered that prosecution was only one possible outcome of the notice. That the Department later provided a notice of intention to issue a development control order on S&P under s 121B of the EPAA only served to reflect the reasonableness of his assumption because, again, that notice did not require S&P to cease or reduce its intake of scrap metal. 4. Finally, S&P submitted that there was no contumelious, contumacious or defiant quality to the offending conduct. Luke Parker's concession that S&P's conduct was "blatant" was not synonymous with these descriptors. Sell & Parker's Belief Formed at the 20 September 2016 Site Inspection Meeting was Neither Genuine Nor Reasonable 1. While none of the three prosecution witnesses attending the 20 September 2016 site inspection meeting gave evidence that Luke Parker had made a threat at the meeting, and despite Luke Parker denying this characterisation (T321:05-15, 322:19-27 and 329:15-27) I nevertheless accept that this is in fact what occurred. An offer followed by a statement as to the adverse consequences (T321:18) or loss that will eventuate if that offer is not accepted is, on any reasonable view, a threat. 2. More importantly, however, is my finding that his asserted belief that an offer was made, that was accepted by the Department in the manner that he contends, is neither genuinely nor reasonably held. That is, I do not accept as credible Luke Parker's evidence as to his understanding of what occurred at that meeting. It is inconsistent with both the events leading up to the meeting and the events that took place after the meeting. 3. First, as the evidence discloses, Luke Parker is a sophisticated businessman who had prior experience with the planning regime in NSW and would not have readily understood that the Department was waiving compliance with the consent or exercising a discretion not to enforce compliance with condition A8. For instance: 1. he holds a law degree, a degree in commerce, and a Masters of Business Administration; 2. during the sentencing hearing he presented as intelligent; 3. by 2016 he was reasonably familiar with the statutory approval regime, having been personally involved in the SSD application and, prior to that, in litigation in which S&P sought to modify a condition of an earlier consent; 4. he had access to competent legal advice at all relevant times; 5. he was aware that between 2013 and 2016 the Department had informed S&P on multiple occasions of numerous and detailed concerns regarding air quality issues associated with the proposed increase of the waste receipt at the site and the concomitant need to ensure adequate mitigation measures, in particular, with respect to hammer mill emissions, prior to any increase being approved; and 6. he was also aware that the EPA had decided not to pursue a pollution reduction program because S&P had indicated that it would address air quality through the consent process. The EPA had made it clear when it issued GTAs that post-commissioning proof of performance of the air quality control infrastructure on site had to be completed prior to any permitted increase in tonnage limits. 1. In my opinion, Luke Parker's misapprehension of what occurred at the 20 September 2016 site inspection meeting and the belief that he claimed to have formed is inexplicable having regard to the fact that S&P, through him, is a sophisticated corporate defendant with prior planning experience and access to competent legal and other expert industry advice. 2. Second, having regard to the history of the imposition of condition A8 set out in detail above, even if Luke Parker believed that officers of the Department could give informal verbal permission to a proponent to contravene a consent condition, any belief that they would do so was contrary to the consistent approach that had been taken by the Department to the SSD application over the preceding years. Therefore, the contention that he reasonably believed that a subordinate compliance officer at a site inspection meeting had waived compliance with the terms of condition A8 cannot readily be accepted. 3. Third, the characterisation of Luke Parker's statements as an offer was not accepted by either Dingle or, ultimately (initially he did accept this characterisation), by Pizzolato. 4. Fourth, the Departmental response could have related to various representations that Luke Parker made at the 20 September 2016 site inspection meeting, including that S&P would lay off 50 staff or that decimation of the steel industry in the State would occur. It was far more likely – and I so find – that the response was directed to either of these two consequences, as opposed to what S&P sought to characterise as an offer to comply with the consent. As Luke Parker himself accepted in cross-examination, he did not know (and could not know) to what part of the multiple statements that he made, the Departmental response related. This goes some way to explaining why the Departmental response was not recorded by Dingle or Pizzolato. That is, they did not understand the response to be an acceptance by the Department of any offer by S&P. 5. Fifth, the Departmental response expressed by Pizzolato was a rational, understandable and human reaction to Luke Parker's statement which related to threatened staff lay-offs and industry wide adverse consequences. Luke Parker conceded that this was possible (T327:38-39). It is also consistent with his description of Pizzolato's reaction, that is, with his hands in the air moving backwards. 6. Sixth, it was extremely unlikely that a Departmental compliance officer would purport to give formal dispensation from conditions of a consent orally given that during the 20 September 2016 site inspection numerous non-compliances had been identified and discussed. The evidence establishes that, at some stage during the site inspection, one of the Departmental officers expressed concern that development activities were being carried out on the site in breach of multiple conditions of consent including the tonnage limits. This is consistent with Bourne's inspection report and the second Dingle affidavit, where the latter deposed that he stated, "the Department is primarily here today to discuss your compliance with your conditionally approved State Significant Development". Although it was put to Dingle in cross-examination that these words were "recent invention", Luke Parker accepted that it was possible that Dingle had said those words (T319:11-17). So do I and to the requisite standard. 7. Seventh, despite Luke Parker's evidence that this was one of the most important conversations he had ever had with the regulator: 1. he maintained that he took from the conversation that the Department was giving S&P approval to commit an offence in relation to the 2016 exceedances (T330:24-46 and 365:09-35); 2. although, as he accepted in cross-examination, that he did not know (and could not know) to what part of the multiple statements he made the response "we don't want you to do that" related, he sought no clarification of the Departmental response; 3. there was no evidence that S&P asked the Department's compliance officers what they would do to dispense with the condition (T332:34-40); 4. incredulously, S&P did not ask for formalisation of the permission given, either at that meeting or subsequently (T332:42-49 and 333:12-25); 5. S&P did not seek any modification of the condition as a consequence of the Departmental response, even though Luke Parker had experience in the process of applying to modify conditions of consent (T333:37, 334:35 and 334:48-335:03); 6. Luke Parker received Bourne's inspection report on 14 October 2016 (T335:26-28). He closely read Bourne's record of the statements about tonnages made during the 20 September 2016 site inspection meeting (T316:39-317:13). He did not recall, but accepted that, it was possible that a Departmental representative said that there were multiple breaches of consent conditions, including threshold limits, on site (T318:28-319:06); 7. he was also aware of the EPA's concerns regarding the tonnage exceedances, which were conveyed to Lloyd's, together with Bourne's inspection report (T336:19-50). S&P wrote to the EPA, but did not refer to the dispensation made by the Department on 20 September 2016 (T338:44); 8. S&P did not, as would be expected given its importance, write to the Department regarding the content of Bourne's inspection report or the dispensation (T337:33-338:17); 9. the Independent Audit Report did not refer to S&P's purported belief that it had been excused from compliance with condition A8 or that the Department had given the company a direction to not reduce its tonnage levels. This is despite Lloyd's recording that it spent two days inspecting the site and consulted with Luke Parker by email (T343:16-37). The Independent Audit Report recorded advice received by email from S&P that the site was exceeding the EPL limit of 90,000tpa "but below the 350,000tpa limit once this development is fully completed". Non-compliance with conditions A7 and A8 were recorded as a "high risk". Luke Parker had at least glanced at the Report (T342:21; 345:26-38 and 346:30-39). The clear inference is that the Lloyd's auditors were never told about Luke Parker's belief that S&P could breach the condition, which is also incredulous; and 10. three days after S&P sent the Independent Audit Report to the Department, S&P received a s 119J notice addressed to Luke Parker requiring information and records, including details of the quantity of waste received and processed at the site in the 2016 calendar year. Pizzolato's covering email referred to a conversation with Maddox in relation to an investigation by the Department regarding compliance with the consent (T366:08-367:04). The subject matter of the investigation referred to in the notice concerned the tonnage exceedances. Further s 119J notices in similar terms were subsequently served. If S&P was permitted to breach condition A8, the s 119J notices were otiose. 1. Eighth, although Luke Parker emphasised the industry-wide difficulties of major scrap metal recyclers (especially Onesteel) as a reason for the Department's decision to exercise its discretion not to prosecute S&P, there was no evidence that in 2015 or 2016 this commercial imperative existed or that it was explained by S&P to either the Department or the EPA that there was an industry need for S&P to maintain excessive receipt of scrap metal, and therefore, that some dispensation ought to be granted to it for this purpose. 2. I therefore find beyond reasonable doubt that the Departmental response did not constitute an offer by the Department that it was exercising its discretion not to prosecute the offences, and moreover, that Luke Parker (and therefore S&P) did not hold a genuine and reasonable belief that the Department was declining to prosecute the 2016 and 2017 exceedances. 3. The evidence and reasons discussed above are also sufficient to dispense with S&P's contention that Pizzolato and Dingle intentionally omitted the Departmental response, or the meaning to be attributed to it, from either of their notes or their affidavits, or that they were "less than candid about what happened" (T529:03) at the 20 September 2016 site inspection meeting. Both witnesses readily conceded their failure to accurately record what transpired at the meeting and that they could offer no explanation for doing so. To the contrary, both witnesses were candid in their responses and did not shirk from the propositions put to them in cross-examination in this (or any other) regard. In my view, even on the balance of probabilities, S&P has not established any want of credibility in respect of Dingle or Pizzolato, or any other Department officer. 4. One plausible explanation for the Departmental response not being recorded by those witnesses was simply because it did not have the meaning attributed to it by Luke Parker, that is, it was never meant as, or taken to be, a statement that the Department would exercise its discretion not to prosecute the ongoing contravention of the consent. Rather, as I have found, it was a normal emotional reaction to the potential consequence of staff lay-offs and/or any adverse impact on NSW's steel industry. 5. These findings and conclusions are consistent with the evidence of what occurred after the 20 September 2016 site inspection meeting (for example, the preparation of the Independent Audit Report, the Board Report and the service of the s 119J notices). 6. S&P contended that the acts of the Department in the period following the 20 September 2016 site inspection meeting were consistent with the Department having decided to exercise its discretion not to enforce the 90,000tpa limit pending the final approval of the ECS. This was because: 1. the Department and the EPA knew that S&P was exceeding the temporary 90,000tpa limit; 2. the Department knew that the ECS had been commissioned and was operational, albeit with its stack in a temporary location; 3. the Department and the EPA had any number of regulatory options available to them to require S&P to reduce its intake and processing of scrap metal to comply with the mandated limit they knew was being exceeded. Neither regulatory agency availed themselves of these options; and 4. none of the various communications from the Department to S&P in the period following the 20 September 2016 site inspection and meeting, including various statutory notices and orders (the s 119J notices and the s 121B order under the EPAA), emails concerning the ECS commissioning, and various air quality assessments (for example, the 18 October 2016 email from Appleton to Maddox in response to the 2016 Commissioning Report), demanded that S&P reduce its receipt or processing of scrap metal. On the contrary, the issuing of various statutory notices and orders demonstrated that the Department had chosen an alternate enforcement mechanism. 1. In my view, even if S&P did form a reasonable and genuine belief that the Department was exercising its discretion not to prosecute the contravention of condition A8 at the 20 September 2016 site inspection meeting (which I have found above that it did not), I find beyond reasonable doubt that S&P's conduct after the meeting, at the very least, must have caused it to reassess and reject this belief in circumstances where: 1. there is no evidence that S&P asked the compliance officers at the 20 September 2016 site inspection meeting any follow up questions in respect of the Departmental response; 2. the Independent Audit Report did not note the response but did identify the contravention of condition A8 as an ongoing non-compliance. It is inconceivable that Luke Parker's understanding of what was purportedly agreed during the 20 September 2016 site inspection meeting would not have been included in that Report. That the Independent Audit Report did not reference the Departmental response strongly supports an inference that S&P did not communicate its apparent understanding to Lloyd's. In cross-examination Luke Parker accepted that this was likely the case. Again, it is inconceivable that his belief would not have been communicated to Lloyd's either prior to issuing the Independent Audit Report or, more significantly, after the Report had been issued and S&P had reviewed the non-compliances noted therein. Although Luke Parker said that he did not consider non-compliance with condition A8 to be high risk because it was administrative in nature, the ECS was working, and there was no non-compliance relating to environmental harm, Lloyd's did not treat it this way in the Report. In any event, the non-compliance did relate to environmental harm because, while the ESC was operational, the Department still had outstanding air quality assessment concerns; 3. Luke Parker's belief was also not referred to in the Board Report, which also noted the tonnage limit non-compliances. Again, it is not credible that Luke Parker's understanding, if genuinely held, would not have been included in the Board Report; 4. S&P did not subsequently verify its understanding of the Departmental response with the Department or the EPA notwithstanding that it received (and Luke Parker read closely: T316:39-317:13) Bourne's inspection report (which did not refer to the Departmental response but did note the concerns of both regulators regarding the non-compliance with condition A8 of the consent: T318:28-319:06); 5. as stated above, S&P received s 119J notices that expressly stated that the Department was investigating compliance with condition A8 of the consent. The notices made it clear that it was an offence for a person to carry out development other than in accordance with the conditions of a development consent. These notices sought, among other things, information about the waste received on the site for the 2016 calendar year. Luke Parker's response to these notices, namely, that they were merely for the purpose of gathering information and did not amount to a repudiation of his belief that the Department was exercising its discretion not to prosecute S&P is equally not credible. At no point upon receipt of these notices did Luke Parker take steps to raise with the Department his belief that S&P would not be prosecuted – a belief inconsistent with the content of the notices; 6. item 5 of the s 121B order was a proposed order concerning the commissioning of the ECS within 90 days in accordance with condition B20. While not directed specifically at the excessive intake of scrap metal waste (which, it may be accepted, that the Department was aware of from the 20 September 2016 site inspection meeting and also the email from Luke Parker to Dingle dated 27 April 2017, indicating the exceedances for the 2016 year), it was nevertheless one of the conditions that had to be complied with in order for receipt of more than 90,000tpa of waste to occur. It was therefore directed at compliance with condition A8. If the Department was content for S&P to received in excess of 90,000tpa on site for processing, there would have been no need for item 5 of that order; and 7. there is no explanation whatsoever as to why, if such a discretion not to prosecute S&P was being exercised by Department, the Department altered its position and determined to charge the company (T528:12). 1. In any event, even if the Court were to find that Luke Parker genuinely believed that he was making an offer during the 20 September 2016 site inspection meeting that was accepted by the Department, this could not mitigate the seriousness of the offences because the belief constituted a fundamental misconception of the nature of the legal obligations imposed upon S&P by the consent and it was not for S&P to offer to comply with the law. As the prosecutor correctly submitted, compliance with conditions of consent imposed by statute is not a matter open to negotiation by threat of consequences or otherwise. The exchange quoted above at [264] where Luke Parker expressed the view that it was "for Sell & Parker to offer to comply with the law" demonstrates, in my opinion, the fundamentally flawed basis of Luke Parker's approach to S&P's repeated breaches of condition A8 (T321:39-322:17). 2. This view was a clear manifestation of the contumelious – in the sense of blatant or flagrant (which is what the Court apprehends the prosecutor intended by this submission: see Dincel Constructions System Pty Ltd v Penrith City Council [2021] NSWCCA 133 at [78]) – nature of the breaches by S&P. The legal obligation contained in condition A8 was operative by force of statute and was not contingent upon S&P agreeing to comply with it. This obligation was ongoing and did not require a positive request by the regulator that the law be obeyed or specific statement that it would be enforced if it was breached. Luke Parker was aware that S&P's conduct constituted an offence during the time that it engaged in the offending conduct in 2016 and 2017 (T376:23-26), however, S&P made no attempt whatsoever to slow down the rate or scale of the offending. While this ongoing defiance it not taken into account as a factor in aggravation, it is nevertheless considered in assessing the overall objective culpability of S&P. 3. In addition to finding that Luke Parker threatened the Department with the two consequences referred to above unless it permitted S&P's continued breach of condition A8, I find to the requisite standard that at no point did Luke Parker hold a genuine or reasonable belief that the Department would not prosecute S&P for the breach or that it sanctioned S&P's ongoing non-compliance. 4. On any view, therefore, the offending conduct in respect of both charges was objectively serious. 5. Furthermore, I accept the submission of the prosecutor that in light of the Independent Audit Report, the Board Report, the three statutory notices and the compulsory interviews in May 2017, the offending conduct by S&P in 2017 was objectively more serious than the commission of the 2016 offence. Conclusion Regarding Sell & Parker's State of Mind 1. In summary, for the reasons above, I find that S&P committed the 2016 and 2017 offences intentionally and contumeliously, in the sense explained above. I do not accept that the response given by a Department official at the 20 September 2016 site inspection meeting was in fact made, or understood by S&P, as sanctioning its unlawful behaviour or that the Department in any way indicated to S&P that it would not be prosecuted for its offending conduct. The Environmental Harm Occasioned or Likely to be Occasioned by the Commission of the Offences 1. In Environment Protection Authority v Waste Recycling and Processing Corp [2006] NSWLEC 419; (2006) 148 LGERA 299, Preston J stated that environmental harm includes both actual and potential harm (at [145]-[149]). His Honour identified the following principles in establishing environmental harm, namely, that: 1. harm is not limited to measurable harm, such as actual harm to human health, and can include a broader notion of quality of life; 2. harm can include harm to the environment and its ecology resulting from adverse impacts to a particular animal or plant; 3. harm can be direct or indirect, individual or cumulative; 4. the culpability of the defendant depends in part on the seriousness of the environmental harm; and 5. the fact that the environment that is harmed by the defendant's conduct was already disturbed or modified is not a mitigating factor. 1. The Court was taken by the prosecutor to zoning plans of the locality surrounding the site with the suggestion that air quality impacts from S&P's operations may have been experienced in residential areas, a school, and an area zoned for public recreation. However, this submission is to be rejected on the basis that: 1. there is no evidence that any person in the residential areas surrounding the site, the school or in the area zoned for public recreation suffered any particular adverse air quality impacts as a result of activities at the site; 2. there is no evidence of any complaints from residents or users of the school or the area zoned for public recreation in proximity to the site; 3. with respect to the evidence of complaints received in the period from 2015, the evidence is that they were from adjacent industrial facilities, one of which was a commercial competitor; 4. some complaints were made prior to January 2015 and predated the installation of the ECS and the commission of the offences by over a year; and 5. each of these complaints was investigated and found to have no substance. 1. S&P also submitted that the Court should have regard to the environmental benefits inherent in S&P's activities at the site (citing ACR Trading Pty Ltd v Fat-sel Pty Ltd (1987) 11 NSWLR 67 at 71A). S&P contended that the recycling of scrap metal reduced CO2 emissions (that would otherwise result from the making of steel from iron ore). These environmental benefits were acknowledged by, for example, the Secretary of the Department and were evidenced by documents tendered by S&P and by evidence given by Luke Parker in his affidavit. 2. That there is an environmental benefit to the activities carried out on site is undeniable, but, in my opinion, is beside the point. The fact that there are such advantages finds expression in both the consent granted to carry out the activity and the issuing of the EPL. However, and as S&P accepted, these benefits are no excuse for unlawful behaviour. Moreover, these benefits must be measured against the immediate detriments that recycling scrap metal potentially poses – air pollution, noise pollution, dust emissions and odour, for example – detriments that the Department and the EPA were seeking to regulate, prevent and minimise by imposing conditions in the consent to carry out the activity, such as condition A8. 3. It remains the fact that, for reasons already given above, the offending conduct caused harm to the regulatory system of planning in NSW, which is a recognised and accepted species of environmental harm, especially in circumstances where the offending was deliberate and blatant. To reiterate, it is not up to holders of approvals to carry out development to determine for themselves whether, and to what extent, they ought to comply with the conditions attached to that approval, irrespective of how beneficial the development is. 4. While the contravention of the EPAA by S&P was serious and resulted in material harm to the coherence and probity of the planning system in this State, that harm does not rise to a level that constitutes a factor in aggravation pursuant to s 21A(2)(g) of the CSPA. Equally, however, it does not constitute a factor in mitigation pursuant to s 21A(3)(a) of that Act. Maximum Penalty 1. The maximum penalty prescribed for the commission of an offence reflects Parliament's, together with the community's, view of the seriousness of that offence (Camilleri's Stock Feeds at 698 and Rawson at [57]). S&P's offending must be examined in this light (Environment Protection Authority v Gilder [2018] NSWLEC 119 at [106]). The maximum penalty serves as a yardstick and the basis for the comparison between the case before the Court and the worst case. 2. The offences were each subject to a tier 2 maximum penalty under s 125B of the EPAA. Accordingly, in the case of a corporation, the maximum penalty is $2 million (s 125B(2)(a)(i) of the EPAA). Reasonable Foreseeability of the Harm Caused or Likely to be Caused to the Environment by the Commission of the Offences 1. In light of my findings concerning the disingenuous and unreasonable nature of the purported belief by Luke Parker, there can be do doubt whatsoever that it was reasonably foreseeable that by deliberately increasing the capacity of the materials received on site in a manner contrary to condition A8 of the consent, that is, prior to approval being granted to do so, this would undermine the planning regime established under the EPAA. Control Over the Causes of the Commission of the Offences 1. S&P was the sole operator of the site. It had control over the causes giving rise to the commission of the offences. Practical Measures Which Could Have Been Taken to Prevent or Mitigate the Environmental Harm 1. There were practical measures that S&P could have taken to prevent, control, abate or mitigate the environmental harm (Wollongong Recycling at [9] and [45]). These measures included not exceeding the tonnage limit imposed by its consent for the receipt or processing of waste. S&P could, and should, have decreased its waste intake in order to comply with its regulatory obligations. Sell & Parker's Reasons for Committing the Offences 1. The criminality involved in the commission of an offence by an offender is measured not only by the seriousness of what actually occurred but also by reference to the reasons for its occurrence (Axer Pty Ltd v Environment Protection Authority (1993) 113 LGERA 357 at 366 and Bentley at [237]). An offence committed for financial gain is objectively more serious than one which is not. 2. The prosecutor submitted that the offences were committed by S&P for financial gain, which is an aggravating factor pursuant to s 21A(2)(o) of the CSPA. 3. S&P conceded that while financial gain was the primary reason for the commission of the offences, it was not the only reason. S&P submitted that the Court would accept Luke Parker's evidence that S&P was also motivated by its desire not to lay-off staff and to continue to carry out a recycling activity that was environmentally beneficial and necessary for the continuing supply of scrap metal to the steel and construction industries in NSW. 4. S&P further submitted that if the Court accepted its version of events at the 20 September 2016 site inspection meeting that the Court should not place great weight on the fact the offences were committed for financial gain. For the reasons explained above, the Court has rejected the narrative attributed to that meeting by S&P. 5. In any event, the desire not to make staff redundant is, properly analysed, also a factor that was financially motivated. As Luke Parker stated, the consequence of complying with the tonnage limit was that costs would have to be reduced, the commission of an offence in order to avoid reducing business operating costs is, on any view, commercially motivated and for financial gain (namely, the reduction of business expenses). 6. There was no dispute that S&P had made a substantial financial gain as a result of the commission of the offences and that this was the dominant reason for the offending (T381:01-08): Q. I understand that the position of the defendant in this case ‑ that is, the company ‑ is that it accepts that a motive for engaging in the offence was for material financial gain; do you understand that? A. Yes. Q. Can I suggest to you that the dominant reason that the offence was committed was for financial gain? A. Yes. 1. I therefore find that the primary motive for the commission of the offences was that of profit-making and I take this factor in aggravation into account pursuant to s 21A(2)(o) of the CSPA. 2. That the offences were committed for financial gain increases their objective seriousness. Conclusion on the Objective Seriousness of the Offences 1. The prosecutor contended that the objective seriousness of both offences was towards the upper end of the moderate range for this type of offence. In this regard, the prosecutor emphasised that at all material times the offending was deliberate and that no attempt was made to slow down the rate and scale of the offending conduct. 2. In response, S&P contended that the prosecutor's submission regarding the objective seriousness of the offences constituted an impermissible suggestion by it that the Court should fix the sentence at some point of relative precision in the range contrary to the reasoning of the High Court in Barbaro v The Queen [2014] HCA 2; (2014) 253 CLR 58 (at [7] and [38]-[39]) and Commonwealth of Australia v Director, Fair Work Building Industry Inspectorate [2015] HCA 46; (2015) 258 CLR 482 (at [40] and [56]). 3. In Director, Fair Work Building Industry Inspectorate the High Court opined as follows (at [56], footnotes omitted): 56 Moreover, in criminal proceedings the imposition of punishment is a uniquely judicial exercise of intuitive or instinctive synthesis of the sentencing facts as found by the sentencing judge (consistently with the jury's verdict) and the judge's relative weighting and application of relevant sentencing considerations in accordance with established sentencing principle. There is no room in an exercise of that nature for the judge to take account of the Crown's opinion as to an appropriate length of sentence. For the purposes of imposing a criminal sentence, the question is what the judge considers to be the appropriate sentence. Nor can there be any question of a sentencing judge being persuaded by the Crown's opinion as to the range of sentences open to be imposed. As was observed in Barbaro, apart from the conceptually indeterminate boundaries of the available range of sentences and systemic problems which would likely result from a criminal sentencing judge being seen to be influenced by the Crown's opinion as to the available range of sentences, the Crown's opinion would in all probability be informed by an assessment of the facts and relative weighting of pertinent sentencing considerations different from the judge's assessment. That is why it was held in Barbaro that it is inconsistent with the nature of criminal sentencing proceedings for a sentencing judge to receive a submission from the Crown as to the appropriate sentence or even as to the available range of sentences. 1. Having regard to the reasoning in the cases referred to above, S&P's submission must be rejected. There is no statement of principle in any authority that precludes the position put by the prosecutor as to the characterisation of the objective seriousness of the offences. Unlike the facts in those decisions, the prosecutor in the present proceedings was not making a statement to the Court as to a specific sentence that ought to be imposed, or even a statement as to the bounds within which the sentence should fall. 2. Having regard to the objective circumstances of the commission of the offences, I find that the 2016 and 2017 offences were at the upper end of moderate objective seriousness, especially with respect to the commission of the 2017 offence. This conclusion is informed by my findings that the offences were committed intentionally, flagrantly and for financial gain. I have also had regard to the fact that S&P never attempted to minimise its processing of scrap metal to comply with the 90,000tpa limit. 3. I consider that the 2017 offence was of slightly higher objective seriousness than the 2016 offence having regard to the fact that it was clear to S&P at this juncture that it was being investigated for a breach of condition A8 of the consent, but it continued to contravene it anyway. Subjective Circumstances of Sell & Parker 1. Within the limits set by the objective seriousness of the offences, the Court must take into consideration the subjective circumstances of S&P in determining the imposition of an appropriate penalty (Environment Protection Authority v GrainCorp Operations Limited [2019] NSWLEC 143 at [116] and [190]). Prior Convictions 1. S&P has previously been convicted of the following offences: 1. on 10 June 2006 it was convicted of one offence contrary to s 64(1) of the Protection of the Environment Operations Act 1997 ("POEOA") for the contravention of a condition of an EPL following an explosion resulting from an airblast caused by pressure levels exceeding those prescribed under the EPL. The Court fined S&P $7,500 and ordered it to pay the prosecutor's costs. S&P pleaded guilty to the offence at the first available opportunity (Environment Protection Authority v Sell and Parker Pty Ltd [2006] NSWLEC 626); and 2. on 16 February 2007, following a plea of guilty, S&P was convicted of one offence contrary to s 64(1) of the POEOA for contravening a condition of an EPL resulting in another explosion due to pressure levels exceeding those prescribed under the EPL. S&P was fined $8,400 and ordered to pay the prosecutor's costs (Environment Protection Authority v Sell and Parker Pty Ltd [2007] NSWLEC 64). 1. The parties jointly submitted that S&P otherwise has no significant record of prior convictions, and therefore, S&P can take the benefit of s 21A(3)(e) of the CSPA. While I largely accept this submission, I nevertheless take the two prior convictions for environmental offences into account. Assistance Provided to Authorities 1. S&P's officers provided documents pursuant to statutory notices in a timely manner and agreed to two statements of fact with the prosecutor (Waste Recycling at [216]-[217] and s 21A(3)(m) of the CSPA). 2. I agree with the prosecutor, however, that the agreed statements of fact were cursory, requiring considerable evidence to be tendered and witnesses to be extensively cross-examined at the sentence hearing, especially Luke Parker. 3. Moreover, to the extent that S&P relied upon its act of replying to statutory notices as a demonstration of the assistance that it provided to the regulatory authorities, compliance with a legal obligation does not constitute the provision of assistance for the purposes of s 23 of the CSPA (Wollongong Recycling at [64]). 4. Therefore, while S&P has provided some assistance to the Department in its investigation of the offences, I find that this factor in mitigation cannot be afforded full weight. Early Pleas of Guilty 1. A plea of guilty entered by a defendant at the first available opportunity can attract a maximum discount of 25% off the penalty imposed as a reflection of the utilitarian value of the pleas to the criminal justice system (ss 21A(3)(k) and 22 of the CSPA and R v Thomson; R v Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383 at [160]). What is regarded as an early plea will vary in the circumstances of the case (Thomson at [160(iii)]). 2. The prosecutor submitted that the utilitarian value of S&P's guilty pleas was eroded by the way in which S&P conducted the proceedings. A defendant who pleads guilty but puts the prosecution to proof on numerous factual issues, and who subsequently loses that contest, is not entitled to the same discount for a plea of guilty (citing R v AB [2011] NSWCCA 229; (2011) 59 MVR 356 at [2]-[3]). In particular, the prosecutor submitted that the body of facts agreed between the parties was not substantial but constituted a bare chronology of events necessitating the need to tender "a deal of" documentary evidence. 3. Conversely, S&P submitted that because it had entered a plea of guilty at the earliest opportunity it was entitled to the full 25% discount. The utilitarian benefit of that plea was not reduced as a result of S&P's refusal to agree to certain facts. The key issue at the sentence hearing was the refusal of the prosecutor to accept that the words "No. We don't want you to do that" were spoken at the 20 September 2016 site inspection meeting by a Department officer. It was the prosecutor's late disclosure regarding Pizzolato's recollection that those words were said that resulted in the need for extensive oral evidence from three prosecution witnesses and from Luke Parker. 4. In R v AB Johnson J stated that (at [32]-[33]): 32 Likewise, a person who pleads guilty but puts the Crown to proof on certain factual issues and who loses that dispute, is not entitled to the same discount for a plea of guilty, on utilitarian grounds, as a person who does not require such a contested hearing. 33 These observations will have no application to the determination of the present Crown appeal. However, as a matter of general principle, this Court should state that the utilitarian value flowing from a plea of guilty is not a fixed element, and is capable of erosion as a result of the manner in which the sentencing hearing is conducted. This involves no more than an acknowledgment of the fact that what may be gained in utilitarian terms as a result of the avoidance of a trial may be lost, also in utilitarian terms, by way of a protracted sentencing hearing involving the adducing of evidence and the consumption of public resources for a purpose ultimately determined adversely to an offender. 1. After expressing his Honour's agreement with Johnson J's reasoning and orders, Bathurst CJ opined (at [2]-[3]): 2 In par [33] of his judgment, Johnson J emphasises that, as a matter of general principle, the Court should state that the utilitarian value flowing from a plea of guilty is not a fixed element and is capable of erosion as a result of the manner in which the sentencing hearing is conducted. I agree. Whilst, as Spigelman CJ pointed out in R v Thomson & Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383 at [152], the primary consideration for the extent of a utilitarian discount was the timing of the plea this should not obscure the fact that there may be circumstances as Johnson J has pointed out where the utilitarian value may be eroded. Equally, there may be some exceptional circumstances in which it is appropriate to give a full utilitarian discount for a plea, notwithstanding the fact that it has not been entered at the earliest opportunity. 3 That is not to say that sentencing courts should not generally continue to follow the approach in R v Borkowski [2009] NSWCCA 102; (2009) A Crim R 1, but merely that the principles have to be applied by reference to the particular circumstances in any case. 1. These principles have been applied in Owens v R [2017] NSWCCA 16 (at[64]) and Martin v R; R v Martin [2021] NSWCCA 316 (at [64]-[78]). 2. While the additional documentary material put before the Court was not overly voluminous, in circumstances where S&P has been unsuccessful with respect to a significant part of its case in mitigation, namely, S&P's understanding of the Departmental response, a contest which resulted in a considerable portion of the protracted eight day hearing, it is not appropriate that the full 25% discount be applied to S&P's sentence. 3. Having said this, it must be noted that Pizzolato's tardy recollection of what was said at the 20 September 2016 site inspection meeting was no doubt a contributing factor to the length of the hearing and the amount of evidence put before the Court. I have therefore taken this matter into account. 4. In all the circumstances a discount of 20% should apply. Contrition and Remorse 1. Pursuant to s 21A(3)(i) of the CSPA, remorse will only be a mitigating factor if: (i) the offender has provided evidence that he or she has accepted responsibility for his or her actions, and (ii) the offender has acknowledged any injury, loss or damage caused by his or her actions or made reparation for such injury, loss or damage (or both), 1. In Waste Recycling Preston J remarked that "contrition and remorse will be more readily shown by the offender taking actions, rather than offering smooth apologies through their legal representatives" (at [203]). His Honour went on to summarise four ways by which an offender may demonstrate genuine contrition and remorse: 1. the efficiency of action rectifying the harm caused or likely to be caused by the commission of the offences (at [204]); 2. the voluntary reporting of the commission of the offences and any consequential environmental harm to the authorities (at [210]); 3. the measures taken to address the causes of the commission of the offences to prevent their occurrence in the future (at [212]); and 4. the personal appearance of corporate executives in court to give evidence of the defendant's regret and a plan of action to avoid the repetition of the offences (at [214]). 1. The prosecutor accepted that S&P has demonstrated some remorse but submitted that the Court would have misgivings regarding the extent to which these expressions were genuine, and therefore, would place only moderate weight upon them as a mitigating factor. 2. For example, Luke Parker's affidavit deposing to the extent to which S&P had accepted responsibility for the commission of the offences was qualified. In particular, he accepted in cross-examination that in his affidavit he sought to justify S&P's commission of the offences by noting delays in the approval process and by relying upon his belief that the Department was exercising a discretion not to take enforcement action with respect to the offences. 3. However, as the prosecutor acknowledged, Luke Parker was present throughout the proceedings and gave evidence of the steps taken by S&P to ensure that tonnage limits were not breached in the future. 4. In response, S&P submitted that the Court should not attribute the explanation contained in his ROI for S&P's non-compliance with condition A8, namely, that it was because S&P was "too successful" and because "we can't get our management plans approved", as an expression of remorse. S&P was not asserting that the commission of the offences was mitigated by the regulator's delay in granting approvals to S&P. Rather, it was emphasising that it had engaged a number of external experts in what was a complex process, in order to achieve compliance. 5. While S&P has expressed some contrition, including an apology given by Luke Parker on behalf of S&P, I am unable to attach full weight to this demonstration having regard to the fact that: 1. while Luke Parker sought to resile at the sentence hearing from the evidence in his ROI, he nevertheless continued to reiterate that the non-compliance resulted from delays in the regulatory process and were not S&P's fault; and 2. in his affidavit, Luke Parker again sought to justify the offending by reason of regulatory delay and S&P's purported belief that the Department was exercising its discretion not to prosecute S&P while the offending continued. 1. It is clear that S&P neither fully accepts responsibility for, nor has insight into, its offending conduct given its attempt to deflect culpability onto the Department. In prosecuting S&P, the Department was not punishing the company for any perceived success, rather it was seeking to enforce the law and to ensure compliance with the conditions of the consent to carry out that 'successful' activity. If the Department is to be criticised for its conduct, it is for its delay in charging S&P for deliberately and persistently breaching the consent. By failing to do so earlier, however, this did not give S&P permission to offend or to keep offending. Any suggestion to the contrary is both repugnant to the statutory environmental and planning regime of NSW and to the rule of law. 2. I therefore place only limited weight on this factor in mitigation. Likelihood of Reoffending and Prospects of Rehabilitation 1. Having regard to S&P's SSD application for increased processing capacity and Luke Parker's evidence that the 350,000tpa waste receipt limit will be adhered to in the future while it remains in place (T384:12-19), I find that S&P's risk of reoffending to be moderately low, but not negligible, especially in light of the findings immediately above concerning contrition and remorse and having regard to its state of mind during the commission of the offences (s 21A(3)(g) of the CSPA). 2. Having said this, I find that it has reasonable prospects of rehabilitation (s 21A(3)(h) of the CSPA). Corporate Character 1. Luke Parker deposed that S&P is involved in the following charitable endeavours: 1. since 2002 it has donated over $5,000,000 to the Sydney Children's Hospital Foundation through its "Metal for Miracles" program; 2. it runs programs in Western Australia and the Northern Territory that support the Royal Flying Doctor Service. Since 2013 S&P has donated in excess of $250,000 to those organisations; 3. for 19 years it has been a major supporter of Sculpture by the Sea, through the provision of materials and transport, to the value of approximately $1,000,000; 4. it has been an active supporter of RUOK Day since its inception in 2009; 5. in 2020 it donated $120,000 to purchase equipment for the Westmead Institute for Medical Research's Brain Dynamics Centre to support research focussed on the resolution of mental health disorders; 6. S&P has been approved by the EPA to operate various automated collection points for the NSW Government's "Return and Earn" drink container deposit scheme; and 7. since 2010, S&P has employed and trained 10 apprentices and three management cadets at the site. 1. To the extent that the prosecutor's records show that S&P has received and paid two penalty infringement notices ("PIN") for non-compliance with the conditions of consent, while this is not a conviction to be taken into account for the purpose of s 21A(3)(e) of the CSPA, there is a question as to whether the PINs can be taken into account in relation to good character (Environment Protection Authority v Koppers Carbon Materials & Chemicals Pty Ltd (the Spill Incident) [2021] NSWLEC 12 at [79]). In the absence of the circumstances surrounding the notices, the Court notes the fact that the PINs related to a breach of the consent but accords minimal weight to them in this context (Koppers at [81]). 2. The Court also notes the positive character evidence provided by Bethwaite in respect of Luke Parker (see earlier in the judgment). 3. I therefore find that, subject to remarks above and but for the commission of the offences, S&P is generally of good corporate character (s 21A(3)(f) of the CSPA). The Offences Could Have Been Prosecuted in the Local Court 1. While the offences could have been prosecuted in the Local Court, given their duration and complexity, such a course would have been highly undesirable (Harris v Harrison [2014] NSWCCA 84; (2014) 86 NSWLR 422 at [92]). General and Specific Deterrence 1. The Court is required to take into account both general and specific deterrence (Walden v Hensler [1987] HCA 54; (1987) 163 CLR 561 at 569-570 per Brennan J). One of the purposes of the Court in imposing a sentence is to prevent crime by deterring the offender and other persons from committing similar offences. This purpose is enshrined in s 3A(b) of the CSPA (Gittany at [101]-[103] and Environment Protection Authority v Rands [2019] NSWLEC 23 at [162]). General Deterrence 1. The penalty imposed by the Court must serve as a general deterrent (Environment Protection Authority v Crown in the Right of New South Wales (Office of Environment and Heritage) [2019] NSWLEC 66 at [175]-[177]). General deterrence is vital "to ensure that the penalty imposed acts to deter those who might engage in similar activities from committing like offences" (Mouawad v The Hills Shire Council [2013] NSWLEC 165; (2013) 199 LGERA 28 at [188] and see also Axer at 359-360). 2. In Environment Protection Authority v Ballina Shire Council [2006] NSWLEC 289; (2006) 148 LGERA 278 Preston J discussed general deterrence in the context of environmental offending in the following terms (at [66]-[68]): 66 The sentence must also serve as a public deterrent. It is the duty of the Court to see that the sentence which is imposed will operate as a powerful factor in preventing the commission of similar crimes by those who might otherwise be tempted by the prospect that only a light punishment will be imposed: R v Rushby [1977] 1 NSWLR 594 at 597-598. 67 This factor is particularly relevant to environmental offences. Persons will not be deterred from committing environmental offences by nominal fines: Environment Protection Authority v Capdate Pty Ltd (1993) 78 LGERA 349 at 354; and Director General of National Parks and Wildlife v Wilkinson [2002] NSWLEC 171 (27 September 2002) at [85] and [93]. 68 The deterrent effect of a fine must send an important message that laws requiring the conservation of the environment and compliance with approvals to carry out activities that may harm the environment, must be complied with. Also, the community must be satisfied that, by the Court's sentence, the offender is given his just desserts. 1. In Minister for Planning v Moolarben Coal Mines Pty Ltd [2010] NSWLEC 147; (2010) 175 LGERA 93, the defendant pleaded guilty to an offence against s 125 of the EPAA of clearing 4.1 ha of land for the purposes of erecting a boundary fence contrary to an approval granted under Pt 3A of that Act. During the course of explaining the purpose of sentencing the Court said (at [46]): 46 The sentencing purpose of general deterrence identified in s 3A(b) is of particular significance in this matter. So much was submitted by the prosecutor and not gainsaid, in terms, by the defendant. It is a corporation engaged in a multimillion dollar coalmining project, an activity which in all its aspects had the potential to have a very significant impact upon the environment. Corporations engaged in activities of this kind must be reminded of the obligations imposed upon them to ascertain the laws and controls applicable to the carrying out of any activity associated with a particular project in order to ascertain the need for any consent or approval to that activity so that the appropriate environmental assessment can be undertaken before any approval is given to it. The sentence therefore needs to make clear to the community at large that the failure of a corporation to take these steps will be visited with significant financial penalties. 1. And as this Court more recently stated in Secretary, Department of Planning and Environment v Leda Manorstead Pty Ltd (No 7) [2021] NSWLEC 26 (at [585]): 585 A sentence must be imposed that makes it irrational for defendants to disobey the law in the development and construction industry (Axer at 359-360 and Waste Recycling at [229]-[232]). Any penalty imposed must be more than the cost of doing business. 1. In Gittany Preston J opined that in achieving general deterrence courts need to impose a penalty that acts as a warning to others not to transgress the law but that also makes the cost of taking precautions to avoid committing the offence worthwhile (at [192]). 2. The prosecutor submitted that general deterrence is a matter that should be given substantial weight in the present sentencing exercise having regard to S&P's intentional and continued commission of the offences and its lack of insight into its offending (citing The Council of the Municipality of Kiama v Pacific Real Estate (Warilla) Pty Limited [2009] NSWLEC 191 at [103]; Axer at 359-360; Gittany at [192] and Environment Protection Authority v Dib Hanna Abdallah Hanna [2018] NSWLEC 80; (2018) 235 LGERA 114 at [206]). As one of the principal participants in the metal recycling industry in this State, S&P had the capacity to offend on a large scale and it did so. These matters elevate the seriousness of the offences and may be taken into account in relation to general deterrence (Morris McMahon & Co Pty Limited v SafeWork NSW [2019] NSWCCA 36 at [90]). 3. S&P contended that if the Court accepted its case in mitigation concerning the events of the 20 September 2016 site inspection meeting, these proceedings were not a good vehicle for the expression of general deterrence. And that, in any event, general deterrence is invariably a consideration that the Court takes into account in the sentencing exercise for environmental crime and that this ought to be awarded no greater weight than ordinary. 4. As held above, the Court has largely not accepted S&P's case in mitigation. Furthermore, the fact that S&P continues to operate in the scrap metal recycling business is of significance (Scahill at [47] and Environment Protection Authority v Sam Abbas (also known as Osama Abbas) [2021] NSWLEC 57 at [106]). A penalty must be imposed that deters other operators in that industry from committing the same or similar offences. 5. It is also highly desirable to send a clear message about the need to uphold the integrity of the planning system and development controls in the carrying out of development on land. Integral to the planning system is that conditions of consent are complied with. As the Court observed in Pacific Real Estate (Warilla) (at [104]-[106]): 104 There is, moreover, a need to ensure general deterrence in relation to other developers who may be tempted to commence construction works without having obtained all of the necessary approvals. As was stated by Preston CJ in Scahill (at [44]-[45] and [47]): [44] Most importantly, the sentence of the Court needs to operate as a powerful factor in preventing the commission of similar crimes by persons who might be tempted to do so by the prospect that, if they are caught, only light punishment will be imposed: R v Rushby [1977] 1 NSWLR 594 at 597. This is particularly so in the context of unlawful development, having regard to the policy considerations articulated in a number of cases including Mosman Municipal Council v Menai Excavations Pty Ltd (2002) 122 LGERA 89 at [32]-[35]; Sutherland Shire Council v Turner [2004] NSWLEC 774 at [24]; and Carlino v Leichhardt Municipal Council (2005) 144 LGERA 235 at [32]-[34]. [45] For environmental offences, the purpose of sentencing of general deterrence is of central importance. Many of the cases in which courts have so stated are set out in the judgment in Cameron v Eurobodalla Shire Council (2006) 146 LGERA 349 at [59], [71]-[80] and Gittany Constructions Pty Ltd v Sutherland Shire Council (2006) 145 LGERA 189 at [103]-[106]. Persons will not be deterred from committing environmental offences by nominal fines: Environment Protection Authority v Capdate Pty Ltd (1993) 78 LGERA 349 at 354; (2009) 165 LGERA 289 at 299 Bentley v BGP Properties Pty Ltd (2006) 145 LGERA 234 at [139]-[142], [150], [151] and Eurobodalla Shire Council v Wheelhouse [2006] NSWLEC 98 at [17]. … [47] The sentencing purpose of general deterrence is particularly relevant where the offender is in a business or industry that undertakes development or action that is regulated by the system of planning and development control. Persons and corporations engaged in demolition, excavation, and building and development work need to be warned by the sentence imposed by courts in cases involving unlawful demolition, excavation, and building and development work that all necessary consents must be obtained and complied with: Mosman Municipal Council v Menai Excavations Pty Ltd at [31], [32], [35]; Sutherland Shire Council v Nustas [2004] NSWLEC 608 at [18]; Byron Shire Council v Fletcher at [62]; Kari & Ghossayn Pty Ltd v Sutherland Shire Council (2006) 150 LGERA 231 at [68](e). 105 Thus in Mosman Municipal Council v Menai Excavations Lloyd J (at [35]) stated: The system of planning control would become somewhat ineffective if persons were to carry out development…without ensuring that necessary development consent has been obtained. Whilst I accept the defendant's submission that it is unlikely to re-offend, there is in my opinion a need to impose a penalty which reflects a general deterrence and to reinforce this obligation on the defendant. 106 His Honour's words resonate loudly on the facts of the present case (see also Furlong at [25] where a similar sentiment was expressed by Pain J). 1. In this regard it is noted that S&P's operations involve the receipt and processing of scrap metal for profit. 2. The Court therefore takes into account the need for general deterrence in the imposition of an appropriate sentence for both offences. Specific Deterrence 1. Specific deterrence is an aspect of the sentencing exercise, especially where a defendant continues to operate in the same field in which the incident has occurred (Axer at 359). 2. The prosecutor's position was that specific deterrence should constitute a material element in the exercise of the sentencing discretion in this case because: 1. S&P continues to engage in the metal recycling industry; 2. the evidence establishes that S&P took a cavalier approach to interactions with the Department and sought, on several occasions, to use those interactions to its advantage and to the detriment of the regulatory system. This is illustrated by S&P making the 20 September 2016 site inspection meeting central to its case in mitigation; 3. S&P's failure to seemingly take seriously the findings of the Independent Audit Report demonstrated its unpreparedness, at least in 2016, to take seriously the regulatory oversight imposed by the consent; 4. S&P's conduct was driven by financial gain; and 5. S&P sought to justify its commission of the offences on delay by the regulator. 1. The prosecutor accepted, however, that these considerations were mitigated to some degree by Luke Parker's evidence that S&P had applied to increase its threshold limits (T384:12-19). 2. S&P stated that the Court was not required to take specific deterrence into account because: 1. S&P has complied with the final pre-requisites of the consent to increase production to 350,000tpa; 2. S&P has lodged a further SSD application to allow for further increases in production at the site; 3. S&P has operated in the metal recycling industry for 55 years with an excellent record; and 4. S&P has not re-offended in the three and a half years since the offences were committed and is unlikely to do so. 1. S&P further argued that it has incurred costs in order to avoid committing the offences, such as the commissioning and installation of the ECS, and that this should be taken into account by the Court. 2. That it undertook this and other measures is afforded weight by the Court, however, what must also be taken into account is the fact that S&P did not incur the cost of slowing down production in order to ensure that condition A8 of the consent was complied with. 3. Although S&P has proactively applied for increased capacity limits, and in light of my finding above that S&P is unlikely to reoffend, I nevertheless take specific deterrence into account for the reasons given by the prosecutor which I accept. Sentencing Corporations 1. In Pacific Real Estate (Warilla) the Court made the following observations about the sentencing of corporations (at [103]): 103 In the circumstances of the present case, the need to specifically deter the defendant from repeating the conduct that resulted in the commission of the offences in the future is, on the evidence outlined above, limited but it is not, contrary to the submission of the defendant, non-existent. The intentional nature of the defendant's conduct in commencing construction absent development consent, driven as it was in part by financial gain, favours the need for, albeit minimal, specific deterrence. 1. Here the offence was committed with the knowledge of the most senior officer of the company – Luke Parker. Moreover, everyone on S&P's board had knowledge that S&P was breaching condition A8 (T359:39-41). 2. As the prosecution highlighted, S&P is a prominent participant in the metal recycling industry and its operations are sizable in scale. As a major operator, its capacity to negatively impact upon the integrity of the planning system is commensurate with the space that it occupies in that industry. It had the capacity to offend in a material way, and it did so, by exceeding its limit by a factor of multiple times. These matters have a real tendency to augment the seriousness of the offences and may be taken into account in relation to the Court's assessment of the objective culpability of the offending conduct and in assessing the need for general deterrence. Retribution and Denunciation 1. The Court must impose a sentence that achieves the purposes of denouncing the conduct the subject of the offences and makes S&P accountable for its actions (Pesic v Sutherland Shire Council [2019] NSWLEC 38 at [41]). Consistency in Sentencing 1. The task of the court is to seek evenhandedness in the imposition of a sentence (R v Oliver (1980) 7 A Crim R 174 at 177 and R v Visconti [1982] 2 NSWLR 104 at 107C). However, care must be taken in achieving consistency. There is always difficulty comparing the penalty in one case with that in another because of the wide divergence of facts and circumstances in each (Axer at 365). The penalty imposed in a single case does not demonstrate the limits of a sentencing court's discretion (Cabonne Shire Council v Environment Protection Authority [2001] NSWCCA 280; (2001) 115 LGERA 304 at [35] and Environment Protection Authority v Barnes [2006] NSWCCA 246 at [79]). 2. The prosecutor provided a table of comparative cases to assist the Court in the sentencing exercise. These cases are summarised as follows: 1. in Wollongong Recycling the defendant was charged with contravening ss 76A(1)(b) and 125(1) of the EPAA for exceeding the volume of waste that was permitted to be received and processed under its applicable SSD consent. The defendant was permitted to receive 30,000tpa of waste but received 40,024t of waste in the 2017 calendar year. The maximum penalty for the offence was $2,000,000. The Court found that no actual environmental harm was caused as a result of the commission of the offence, however, harm was caused to the integrity of the planning system. The evidence was insufficient to establish that the offence was committed recklessly or negligently. The defendant had no prior convictions and there were no other aggravating factors. The time period of any financial gain was limited. Genuine remorse was not established. The penalty was discounted by 25% for the utilitarian value of the defendant's early guilty plea. The defendant provided a limited degree of assistance to the prosecutor by agreeing to a statement of facts. The Court fined the defendant $36,000, half of which was to be paid as a moiety to the prosecutor, and a publication order was made. The defendant was liable for $26,000 in costs; 2. in Environment Protection Authority v Mortdale Recycling Pty Ltd [2019] NSWLEC 106 the defendant was fined $30,000 (after the application of a 25% discount for its early guilty plea) for contravening s 64(1) of the POEOA. Additionally, it was subject to a publication order and ordered to pay costs fixed in the sum of $40,000. The contravention related to the defendant's exceedance of a limit regarding the amount of material that could be received and processed on its premises. The limit was 30,000tpa and the defendant exceeded it by 29,931t in the 2017/2018 reporting year. The defendant was granted a SSD consent in late 2017 for the increase in volume limits. The maximum penalty for the commission of the offence was $1,000,000. The Court found that the offence was of low to medium objective seriousness and constituted a clear case of negligence bordering on recklessness. There was potential environmental harm, albeit minimal, in addition to harm caused to the integrity of the planning regime. The defendant had no prior convictions, assisted the authorities and took prompt remedial action. The defendant demonstrated a level of contrition and remorse; 3. Environment Protection Authority v Minto Recycling Pty Limited [2019] NSWLEC 193 concerned the appropriate sentence to be imposed on the defendant for contravening s 64(1) of the POEOA for exceeding the 30,000tpa waste receipt limit contained in its EPL. The maximum penalty was $1,000,000. The defendant received 169,695t of waste in the relevant year. During the charge period, the defendant had made a SSD application to increase its permitted waste receipts. This increase was subsequently granted. The defendant had ceased trading prior to the imposition of the sentence, and therefore, specific deterrence was given no weight. The objective seriousness of the offence was at the top of the low range. The sole factor of aggravation was that the offence was committed for financial gain. The dispute regarding environmental harm resulted in the hearing taking over ten days. The defendant did not agree to a statement of facts but did tender a statement of admissions. Assistance to the prosecutor was not established. The defendant was fined $90,000 (after the application of a 25% discount for the entry of an early guilty plea). A publication order was made and the defendant was ordered to pay the prosecutor's costs as agreed or assessed; 4. in Environment Protection Authority v Wyanga Holdings Pty Ltd; Environment Protection Authority v Cauchi [2015] NSWLEC 78 a corporate defendant and its directors were sentenced for three contraventions of s 64(1) of the POEOA. The maximum penalty was $1,000,000 for the corporate defendant and $250,000 for each of the directors. The defendants exceeded the volume limit of 50,000tpa imposed under their EPL in respect of quarried extractive material. Each offence related to a different charge period. The exceedances were substantial (96,597t for the first offence, 368,363t for the second, and 81,512t for the third). The EPL was suspended in 2013. The defendants had sought an increase in the volume limit in 2010 and there were extensive delays in the approval process. The Court found that the objective seriousness of the offences was low to moderate. There was the potential for environmental harm, albeit minimal. The Court took into account the defendants' intentional disregard for the extraction limit, the long-running nature of the substantial exceedances in volume and the fact that the investigation and show-case notice were ignored. There were no relevant prior convictions. The offences were found to have been committed for financial gain. In mitigation, the defendants were held to be unlikely to reoffend given that a new increased volume limit was subsequently granted. Specific deterrence was, therefore, given no weight. Remorse was established. The Court applied a 40% discount for the defendants' early pleas of guilty and other mitigating factors. The defendants were fined $81,000 after the relevant discounts and the application of the totality principle. The defendants were also sentenced for the provision of misleading information to the EPA; 5. a corporate defendant was fined $30,000 for contravening s 64(1) of the POEOA by handling 88,949tpa of extracted material, a quantity almost three times its EPL limit of 30,000tpa, in Environment Protection Authority v M A Roche Group Pty Ltd [2014] NSWLEC 114. Towards the end of the charge period the defendant had applied to increase its limit to 250,000tpa. The maximum penalty for the offence was $1,000,000. The offence was held to be of low objective seriousness. The defendant had prior offences for water pollution and for obstructing an authorised officer. The offences were held to be committed for financial gain. Moreover, there was no remorse or contrition. However, in mitigation, the sentences were discounted by 25% for an early guilty plea. Other factors in mitigation included the assistance provided by the defendant and its agreement to pay the prosecutor's costs. The defendant was ordered to pay the prosecutor's costs as agreed or assessed and to publish details of the offence in two publications; and 6. in Environment Protection Authority v M A Roche Group Pty Ltd [2015] NSWLEC 29 the same corporate defendant was sentenced for contravening s 64(1) of the POEOA for handling 62,475t of extracted material when its EPL limit was 30,000tpa. The objective seriousness of the offence was assessed as being low to medium. There was a risk of environmental harm as a result of the commission of the offence due to increased dust and noise emanating from the subject site. The offence also undermined the regulatory planning scheme in NSW. The Court considered specific deterrence in undertaking the sentencing exercise. The Court found that the defendant should have been on notice of the risk of the contravention having received a prior PIN. The Court found that the offence was committed for financial gain. Mitigating circumstances included that the defendant was fully cooperative and entered a plea of guilty at the earliest opportunity. The defendant was fined $52,000 after the application of a 35% discount for the utility of its early guilty plea and other mitigating factors. The defendant paid the prosecutor's costs in the agreed sum of $9,751. 1. I have had regard to these cases, noting their similarities and differences, in the imposition of the penalties in these proceedings. Publication Order 1. Pursuant to s 126(2A) of the EPAA, the Court is empowered under s 250(1)(a) of the POEOA to order S&P to publicise the commission of the offences (including the circumstances of their commission). The parties have agreed to a publication order in the terms provided at annexure A to this judgment. Financial Means of Sell & Parker 1. There was no suggestion that S&P would be unable to pay any monetary penalty likely to be imposed upon it by this Court (see s 6 of the Fines Act 1996). Costs 1. In the exercise of its sentencing discretion in relation to the quantum of any monetary penalty to be imposed on S&P, the Court can take into account the costs that S&P agrees to pay (Barnes at [78] and [88]). In doing so, the Court must be mindful that the payment of the prosecutor's costs is not a reason for reducing any penalty to be imposed in a particular case lower than that suggested by the general pattern of sentencing for the relevant offence (Liverpool City Council v Leppington Pastoral Co Pty Ltd [2010] NSWLEC 170 at [50]). 2. The prosecutor sought an order under s 257B of the Criminal Procedure Act 1986 for the payment of its professional costs as agreed or assessed. During the sentence hearing the parties agreed that S&P would pay the professional costs of the prosecutor fixed (see s 257G of that Act) in the sum of $269,630 (rounded down), excluding the costs associated with two of the prosecutor's experts, Natalie Faulkner and Gregor Riese (T552:07-08), and the preparation and hearing of the notices of motion on 14 March 2019, which resulted in a finding of duplicity (T552:17-33). Totality Principle 1. The totality principle is a relevant consideration when determining an aggregate penalty in sentencing for multiple offences (Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59 at 62-63; Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610 at [40]; Johnson v The Queen [2004] HCA 15; (2004) 78 ALJR 616 at [18] and Water NSW v Barlow [2019] NSWLEC 30; (2019) 244 LGERA 1 at [111]-[112]). The task of the Court is to ensure that the overall sentence is neither too harsh nor too lenient. 2. Care must nevertheless be taken "to ensure that any adjustment of individual sentences does not cause the aggregate sentence not to reflect the total criminality of the offender's conduct or the sentence for any individual offence to become disproportionate to the objective gravity of that offence" (Rawson at [222]). The identified risk is that if "sentences are reduced substantially, offenders may view that they can escape punishment for successive deliberate discrete offences" (Gittany at [199] and [201]; R v Harris [2007] NSWCCA 130; (2007) 171 A Crim R 267 at [45]-[46] and R v Wheeler [2000] NSWCCA 34 at [36]-[37]). That is to say, the application of the totality principle must not cause public confidence in the administration of justice to be undermined by any perception that "what is in effect being offered is some kind of a discount for multiple offending" (R v MAK; R v MSK [2006] NSWCCA 381; (2006) 167 A Crim R 159 at [18]). 3. In R v Toohey [2019] NSWCCA 182, Gleeson JA summarised the application of the principle as follows (at [56]): 56 As to totality, it is well established that questions of accumulation and concurrence are, generally speaking, matters for determination by a sentencing judge in the exercise of his or her discretion. The focus is on a consideration of the similarity, differences and the degree of connection between the offences both in time and type to ascertain the extent to which the sentence for one offence can comprehend and reflect the criminality of the other: Pannowitz v R [2016] NSWCCA 13 at [40] (Davies J, Hoeben CJ at CL and Beech-Jones J agreeing). That calls for the identification and an evaluation of the relevant factors pertaining to the offences and will include the nature and seriousness of each offence. 1. The principle applies with different force where the penalty imposed is a fine. In Camilleri's Stock Feeds Kirby P (as he then was) said (at 704D): The principle of totality is applicable where the penalty imposed is by way of fine: see R v Sgroi (1989) 40 A Crim R 197 at 203. However, it may be that the principle of totality may not have the same force in the case of the imposition of fines, as opposed to the imposition of imprisonment where it has a special operation: see R v Brown (1982) 5 A Crim R 404 at 407. 1. This passage was quoted with approval in Barnes (at [46]) where Kirby P explained the application of the totality principle to fines in this way (at [49] and [50]): 49 Dealing with these arguments, the totality principle clearly had application. Her Honour was sentencing for two offences. It was not simply a matter of fixing a fine for each offence. Her Honour was obliged to review the aggregate and consider whether it was just and appropriate, as a reflection of the criminality overall. That may require some moderation of the sentences imposed in respect of each offence. 50 Here, the fine in respect of count 1 ($4,000) was significantly different from that in respect of count 2 ($500). However, the disparity by itself does not suggest error. Where there are multiple offences, each punishable by a custodial sentence, the totality principle may find expression through the complete or partial accumulation of sentences, or through making all or some of the sentences concurrent (cf. Pearce v The Queen (1998) 194 CLR 610, per McHugh, Hayne and Callinan JJ at 624 (para 45)). However, there is obviously no room for partial accumulation or concurrence in the case of fines. If the sentencing Judge believed that the totality principle required an adjustment to the fines which may otherwise be appropriate, the amount of each fine had to be altered, applying the sentencing principles suggested in Johnson v The Queen (2004) 205 ALR 346. 1. The parties submitted that the totality principle applied in the present proceedings consistent with the principles articulated in the authorities quoted above. The submission may be accepted. The elements of each offence are identical and co-incident in respect of the offending conduct, the circumstances giving rise to the commission of the offences, and the provisions of the EPAA contravened. Accordingly, the application of the totality principle to both charges is warranted. That the offences related to different time periods and different quantities of waste received does not derogate from this conclusion. Moiety 1. The prosecutor seeks an order pursuant to s 122(1) of the Fines Act directing the payment of half of any fine imposed upon S&P to the prosecutor. S&P did not contest the appropriateness of such an order and I make it. Appropriate Sentence 1. Having regard to the objective seriousness of the offences and the mitigating subjective factors in favour of S&P, together with the penalties imposed in the relevant comparable cases, I consider that the appropriate sentence to be imposed is a monetary penalty of $200,000 for the 2016 offence and $225,000 for the 2017 offence. 2. The penalties must be discounted by 20% for the utilitarian value of S&P's early pleas of guilty, resulting in a monetary penalty of $160,000 for the 2016 offence and $180,000 for the 2017 offence. 3. After the application of the totality principle, the penalty for the 2017 offence should be reduced to $90,000. 4. The total monetary penalty imposed on S&P for the commission of the two offences is, therefore, $250,000. Orders 1. In conformity with the reasons given above, the Court makes the following orders: Proceeding 2018/242442 1. the defendant is convicted as charged; 2. the defendant is fined the sum of $160,000, half of which ($80,000) is to be paid to the prosecutor under s 122(2) of the Fines Act 1996; Proceeding 2018/242443 1. the defendant is convicted as charged; 2. the defendant is fined the sum of $90,000, half of which ($45,000) is to be paid to the prosecutor under s 122(2) of the Fines Act 1996; Proceedings 2018/242442 and 2018/242443 1. pursuant to s 250(1)(a) of the Protection of the Environment Operations Act 1997, within 28 days of the date of this order, and at its own expense, the defendant is to cause a notice in the form of annexure A, at a minimum size of 12 cm x 15 cm, to be placed within the first 10 pages of the following publications: 1. The Daily Telegraph; 2. The Australian Financial Review; and 3. The Sydney Morning Herald; 1. pursuant to s 250(1)(a) of the Protection of the Environment Operations Act 1997, within 28 days of the date of this order, and at its own expense, the defendant is to cause a notice in the form of annexure A to this order to be placed on the home page of the website of Sell & Parker Pty Ltd (https://www.sellparker.com.au); 2. within 35 days of the date of this order, the defendant is to provide to the prosecutor a complete copy of the pages of the publications and website in which the notices have appeared pursuant to orders 5 and 6 above; 3. pursuant to ss 257B and 257G of the Criminal Procedure Act 1986, the defendant is to pay the prosecutor's costs fixed in the sum of $269,630 for both sets of proceedings; and 4. the exhibits are to be returned. Annexure A Sell & Parker Pty Ltd is Convicted of Contravening its Development Consent and Ordered to Pay $250,000 Sell & Parker Pty Ltd ("Sell & Parker") has been convicted and has been ordered to pay a fine in the sum of $250,000 by the Land and Environment Court of NSW for two offences against s 125(1) of the Environmental Planning and Assessment Act 1979 ("EPAA") of carrying out development on land, comprising an expansion of its metal recycling facility at Kings Park, NSW, to enable it to receive and process up to 350,000 tonnes of scrap metal per calendar year, otherwise than in accordance with a development consent issued by the then Department of Planning and Environment ("the Department"), contrary to s 76A(1)(b) of the EPAA. The development consent included a condition that Sell & Parker was not permitted to receive or process at the facility more than 90,000 tonnes per calendar year of waste until the emissions collection system for a hammer mill had been commissioned and approved for operation, and before a final occupation certificate had been issued. In the 2016 calendar year Sell & Parker received 105,386.751 tonnes of scrap metal in excess of its permitted limit. In the 2017 calendar year Sell & Parker received 178,645.476 tonnes of scrap metal in excess of its permitted limit. On 19 May 2022, the Land and Environment Court of NSW sentenced Sell & Parker for the two offences and ordered it to: 1. pay a fine in the sum of $250,000; 2. pay the Department's costs fixed in the sum of $269,630; 3. place a notice in news publications advising of the commission of the offences, and to pay for the placement of those notices; and 4. place a notice on the home page of Sell & Parker's website advising of Sell & Parker's commission of the offences. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 23 May 2022