Land and Environment Court New South Wales Medium Neutral Citation: Cessnock City Council v Bimbadgen Estate Pty Ltd (No 2) [2011] NSWLEC 140 Hearing dates: 15 August 2011 Decision date: 16 August 2011 Jurisdiction: Class 5 Before: Pepper J Decision: (1) Bimbadgen is convicted of the offence as charged; (2) Bimbadgen is fined the sum of $20,000; and (3) pursuant to s 257B of the Criminal Procedure Act 1986 Bimbadgen is to pay the prosecutor's costs of the proceedings as agreed or assessed. Catchwords: ENVIRONMENTAL OFFENCES: sentence - carrying out development without consent - whether works continued after stop work order - consideration of objective and subjective factors - extent of harm - whether the offence was committed intentionally - whether the offence was committed for financial gain Legislation Cited: Cessnock Local Environmental Plan 1989 Crimes (Sentencing Procedure) Act 1999, ss 3A, 21A, 22, 23 Criminal Procedure Act 1986, ss 257B, 257G Environmental Planning and Assessment Act 1979, ss 5, 76A, 125, 126 Fines Act 1996, s 6 Cases Cited: Axer Pty Ltd v Environment Protection Authority (1993) 113 LGERA 357 Bentley v BGP Properties Pty Ltd [2006] NSWLEC 34; (2006) 145 LGERA 234 Cabonne Shire Council v Environment Protection Authority [2001] NSWLEC 280; (2001) 115 LGERA 304 Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 Council of the Municipality of Kiama v Pacific Real Estate (Warilla Pty Ltd) [2009] NSWLEC 191 Director-General, Department of Environment and Climate Change v Hudson [2009] NSWLEC 4; (2009) 165 LGERA 256 Director-General, Department of Environment and Climate Change v Rae [2009] NSWLEC 137; (2009) 168 LGERA 121 Director-General, Department of Environment, Climate Change and Water v Linklater [2011] NSWLEC 30 Environment Protection Authority v Barnes [2006] NSWCCA 246 Environment Protection Authority v Hanna [2010] NSWLEC 98 Environment Protection Authority v Huntsman Corporation Australia Pty Ltd [2011] NSWLEC 39 Environment Protection Authority v Waste Recycling and Processing Corp [2006] NSWLEC 419; (2006) 148 LGERA 299 Garrett v Freeman (No 5) [2009] NSWLEC 1; (2009) 164 LGERA 287 Gittany Constructions Pty Ltd v Sutherland Shire Council [2006] NSWLEC 242; (2006) 145 LGERA 189 Hardt v Environment Protection Authority [2007] NSWCCA 4; (2007) 156 LGERA 337 Hili v The Queen; Jones v The Queen [2010] HCA 45; (2010) 272 ALR 465 Hoare v The Queen [1989] HCA 33; (1989) 167 CLR 348 Keir v Sutherland Shire Council [2004] NSWLEC 754 Lane Cove Council v Wu [2011] NSWLEC 43 Liverpool City Council v Leppington Pastoral Co Pty Ltd [2010] NSWLEC 170 Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 Mosman Municipal Council v Menai Excavations Pty Ltd [2002] NSWLEC 132; (2002) 122 LGERA 89 Pittwater Council v Scahill [2009] NSWLEC 12; (2009) 165 LGERA 289 Plath v Glover [2010] NSWLEC 119 Plath v Hunter Valley Property Management Pty Ltd [2010] NSWLEC 264 Plath v Rawson [2009] NSWLEC 178; (2009) 170 LGERA 253 R v Thomson; R v Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383 R v Olbrich [1999] HCA 54; (1999) 199 CLR 270 Veen v The Queen [1979] HCA 7; (1979) 143 CLR 458 Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465 Willoughby City Council v BCPD Pty Limited [2010] NSWLEC 163 Category: Principal judgment Parties: Cessnock City Council (Prosector) Bimbadgen Estate Pty Ltd (Defendant) Representation: Mr T G Howard (Prosecutor) Mr S Nash (Defendant) Mallik Rees Lawyers (Prosecutor) Addisons Lawyers (Defendant) File Number(s): 50195 of 2011 EX TEMPORE JUDGMENT Bimbadgen Carries Out Unlawful Earthworks 1The defendant, Bimbadgen Estate Pty Ltd ("Bimbadgen"), has pleaded guilty to an offence that between 16 July and 26 August 2009, at 790 McDonalds Road, Pokolbin ("the Land") it committed an offence against s 125(1) of the Environmental Planning and Assessment Act 1979 ("the EPAA"). 2The charge brought by Cessnock City Council ("the council") states that Bimbadgen carried out the following unlawful act: It did carry out development on land, being development which required development consent under the provisions of an environmental planning instrument which applied to the land, where a development consent had not been obtained and was not in force with respect to the development, contrary to section 76A(1)(a) of the Environmental Planning and Assessment Act 1979. 3Bimbadgen is the registered proprietor of the Land compromising Lot 21 in DP 749996, being the whole of the land contained in the Certificate of Title Folio Identifier 21/749996. 4The development was the carrying out of earthworks and associated construction on the Land in order to accommodate an increased number of patrons at concerts held on it. 5Bimbadgen is now before the Court for sentencing. Having regard to the objective circumstances of the commission of the offence and the subjective circumstances of Bimbadgen, the Court imposes a fine of $20,000 and orders Bimbadgen to pay the prosecutor's costs of the proceedings as agreed or assessed. Factual Background Giving Rise to the Commission of the Offence 6The facts in this matter were, subject to two exceptions, not in dispute and were contained in a comprehensive statement of agreed facts with an attached bundle of documents that included: a map showing the location of the Land; a plan depicting the extent of the earthworks carried out during the charge period; and aerial photographs showing the extent and location of the earthworks that had been carried out on the Land. 7Bimbadgen carries on a business on the Land which primarily compromises a winery, vineyard, cellar door and a restaurant. In addition, Bimbadgen occasionally hosts outdoor concerts on the Land, which are professionally promoted and which attract up to 8,500 patrons. 8The Land is located in the local government area of Cessnock City. The environmental planning instrument applying to the Land is the Cessnock Local Environmental Plan 1989 ("the CLEP"). The Land is zoned 1(v) Rural (Vineyards) under the CLEP. 9It is not in dispute that the holding of an outdoor concert by Bimbadgen on its land required development consent under the EPAA pursuant to the provisions of the CLEP. Usually when Bimbadgen proposes to hold such a concert, its practice is to first apply for and obtain development consent from the council. It is also not in dispute that the development the subject of the charge required development approval. 10On 24 June 2009, officers of the council, namely, Ms Kim Turner (now Kim Mitchell) and Ms Kerry Porter met with Mr John Quirk, the General Manager of Bimbadgen at the time, and Ms Gabrielle Streater also of Bimbadgen, to discuss the proposed upcoming concerts to be held on the Land. The purpose of the meeting was to discuss traffic management and measures to be introduced to ensure that the number of patrons attending the concert did not exceed the site's capacity. At this meeting, the representatives of Bimbadgen were allegedly informed by the council that Bimbadgen would need development consent in order to carry out the works that were deemed necessary for the Land to accommodate the increased number of patrons. 11However, without first applying for, or obtaining, development consent, between 16 July and 26 August 2009, Bimbadgen carried out earthworks on the Land in order to provide suitable parking and to enlarge an existing amphitheatre for upcoming concerts. The earthworks and associated works on the Land, on any view, were extensive, comprising the cutting and filling of 10,000m of material over a total area of 3.4ha and included: (a) the construction of a generally flat, level and compacted area including the use of filling, compacting and levelling and the construction of batters to create an area to house a stage and associated facilities on the northern part of the Land; (b) the construction of new hardstand areas including the use of filling, compacting and levelling of areas to be used as parking areas for buses and cars; (c) the construction of roads or driveways including the use of filling, compacting and levelling of areas to enable access to the parking areas; and (d) the clearing of vegetation including vines, from three separate locations on the Land, totalling 9,600m. 12The earthworks were carried out by professional earthworks contractors engaged by Bimbadgen, namely, Mitchell Bros Earthmoving Pty Ltd ("Mitchell Bros"). 13On 10 August 2009, following an inspection of the Land the council sent a letter to Bimbadgen informing it that earthworks had been carried out on the Land without consent and that Bimbadgen had the opportunity to "show cause" in writing within 14 days why the council should not commence legal action. Bimbadgen was also advised to cease any further unauthorised works and to put into place adequate sedimentation and erosion control measures. The cease work letter was received by Bimbadgen on 13 August 2009. 14On 13 August 2009, another letter was sent to Bimbadgen from the council. The letter requested clarification of the reason for the unauthorised works and of the extent of the works. 15On the same day, Roundhouse Entertainment (the promoter of the concerts) lodged a development application for four to six "Day on the Green" concerts to be held at Bimbadgen during the 2009-2010 summer season ("the concert DA"). 16On 14 August 2009, Ms Jacqueline Tupper and Ms Rean Lourens, both authorised officers of the council, again inspected the Land. Present during the inspection was Mr Quirk. 17During the inspection it was noted that the works, as described above, had been carried out on the Land. At the inspection Mr Quirk advised Ms Tupper that the works were being undertaken in order to increase the capacity of the venue at Bimbadgen by 1,000 patrons at the request of the concert promoter. Mr Quirk told Ms Tupper that ticket sales for an upcoming B52s concert were likely to exceed the existing capacity. Significantly, Ms Tupper reminded Mr Quirk that he had been informed that he needed development consent in order to undertake the works discussed at the meeting on 24 June 2009 with the council. In response, Mr Quirk simply told Ms Tupper that "there was a commercial imperative to undertake the works". 18After Ms Tupper's inspection the council sent another letter to Bimbadgen requiring it to stop forthwith all work on the site until such time as development consent had been obtained. 19In reply, Mr Quirk forwarded a letter to the council on 21 August 2009, stating that it was never Bimbadgen's intention not to comply with the council's development requirements and that it would supply the council with further information regarding the earthworks. He further explained, contrary to the council's version of events, that Bimbadgen was not aware that it needed to obtain development consent for the work undertaken and requested further particulars as to why the work required development consent under the CLEP. He also confirmed that work had ceased on the site as at 14 August 2009, and that proper sedimentation and erosion controls would be put into place. 20On 7 September 2009 the council sent a letter to Mr Quirk, the first numbered paragraph of which expressly referred to the fact that prior to works commencing on the site, council officers, Ms Porter and Ms Mitchell had specifically informed Mr Quirk and Ms Streater at the meeting on 24 June 2009 that development consent was required for the proposed development. 21In his response dated 9 October 2009, Mr Quirk gave two reasons for the unauthorised works, namely, to cater for the growing demand for concerts in the Hunter Valley and to expand the capacity of the viewing area on the land. No mention (and thus no denial) was made of the allegation that Bimbadgen had been aware of the need for development consent prior to the works being undertaken. 22Bimbadgen lodged a development application (No 8/2009/624/1) ("the DA") with the council on 14 October 2009 to regularise the unauthorised works. The DA sought consent to undertake earthworks for the purpose of increasing the capacity of the concert venue, including the enlarging of the parking area, the amphitheatre and the stage. 23The council approved the DA on 4 November 2009, subject to conditions. Bimbadgen sought, and was subsequently granted, modification of the development consent on 18 November 2009. 24On 10 November 2009, the council granted a further consent to the concert DA permitting the concerts to be held. 25The first of the concerts under the approval took place on 21 November 2009, with approximately 8,000 patrons in attendance. Evidence of the Council 26The council relied on the material contained in two affidavits, namely: (a)an affidavit of Ms Kerry Porter, sworn 22 June 2011. Ms Porter was the Planning Coordinator for the council; and (b)an affidavit of Ms Kim Turner, sworn 1 March 2011. Ms Turner is the council's Development Compliance Officer. 27The affidavit of Ms Porter deposed to the fact that a meeting was held at the council on 24 June 2009. Ms Porter stated that in addition to herself, in attendance at the meeting were Ms Turner from the council, and Ms Streater and Mr Quirk of Bimbadgen. 28Critically, while Ms Porter candidly admitted she could not recall the exact conversation she had with Mr Quirk, she nevertheless deposed to the fact that a conversation had taken place wherein she informed Mr Quirk and Ms Streater that Bimbagen required development consent to carry out the works the subject of the charge: I said: Council has concerns as a result of the recent concert audit, primarily issues relating to crowd numbers and traffic management. The audit revealed significant issues regarding inadequate onsite parking for both motor vehicles and buses and the large number of vehicles parking along McDonalds Road. I am also of the opinion that the site does not have the capacity, nor the infrastructure to cater for the large crowd numbers of recent concerts that have been around the eight to ten thousand mark. Any future application for concerts on this site I will be recommending a condition to restrict crowd numbers to four to five thousand people. If you intend to lodge future applications for crowd numbers around the eight to ten thousand mark, then you will need to do significant works on site to improve parking and traffic management. Mr Quirk said: We are currently organising to undertake works to create all weather surfaces for the parking of cars and buses. I said: Any such work requires the separate consent of Council. You will need to lodge with your development application full details of the works to be undertaken on site including a site plan showing all the existing infrastructure, proposed parking areas and any earthworks to be undertaken to improve parking facilities. An option for you may be to remove some vines from the site to increase parking numbers and standing room and your site plan needs to indicate what sections of vines will be removed to undertake these works. John, I stress that any works on site to improve infrastructure requires the consent of the Council. 29Ms Porter further stated in her affidavit that she specifically recalled Mr Quirk telling her that he had already made arrangements for the work to commence and because of this she took particular care to ensure that he was informed that he needed development consent to carry out the works. To this end Ms Porter stated that she told Mr Quirk that she would send him a letter to confirm what they had discussed at the meeting. No letter was, however, sent. 30The affidavit of Ms Turner corroborated the account given by Ms Porter of what transpired at the meeting. She recalled a conversation between Ms Porter and Mr Quirk to the following effect: Ms Porter said: Council will be restricting the number of patrons attending each concert to a maximum of approximately 4,000-5,000 people unless significant works are carried out to facilitate the number of cars and buses entering and exiting the property. Mr Quirk said: We will be hardening the surface where the buses park. Ms Porter said: You must submit a Development Application before you commence these works. If it is also your intention to remove vines to create more parking spaces and standing room then a Development Application will also have to be submitted along with complete site plans indicating the areas where the vines had been removed. I stress to you that earthworks of any kind must have Council consent. 31At the conclusion of the meeting, Ms Turner stated that she recalled Ms Porter confirming with Mr Quirk that the council would send him a letter reiterating what they had discussed and that in the meantime he should start gathering all the information he needed to submit a development application for the proposed work. 32A contemporaneous file note written by Ms Turner confirming Ms Turner's account of the meeting in her affidavit was tendered to the Court. 33Neither Ms Turner nor Ms Porter were cross-examined. 34In light of this unchallenged evidence, I have no doubt whatsoever that Mr Quirk was told by the council in unequivocal terms on 24 June 2009 that development consent was required for the proposed works of on the Land. The significance of this is later discussed. 35The council also relied on a bundle of documentary material produced on subpoena to Mitchell Bros. This material was tendered principally to demonstrate that Bimbadgen had continued to carry out works after it was ordered to cease work by the council. 36The bundle relevantly comprised a quote for the work on the Land after the cease work order. Present was an invoice for works carried out on "21/08/09, 22/08/09, 10/09/09" with, in particular, the notation "Hire of Grader to regrade areas prior to council inspection". The invoice was in the amount of $1,826, of which $1,056 was attributed, according to a subsequent handwritten note also contained in the bundle, to the regrading. No one from Mitchell Bros was called to give evidence to explain the works the subject of the invoice. Evidence of Bimbadgen 37Bimbadgen relied upon two affidavits, namely: (a) an affidavit of Mr John Quirk, sworn 22 July 2011; and (b) an affidavit of Mr Greg Dyer, sworn 25 July 2011. Mr Dyer is a director of Bimbadgen; 38Mr Quirk deposed to the fact that he did not recall being told at the meeting on 24 June 2009, or in any prior conversation that he had had with the council, that he needed development consent for earth moving or the removal of vines. He stated that the first occasion that he could recall being told by any council officer that he needed development consent to remove vines was when officers of the council inspected the Land on or about 11 August 2009. 39Despite this memory lapse, Mr Quirk stated in his affidavit that he now understands that development consent was required and he accepts full responsibility for the breach. 40Mr Quirk's explanation for not obtaining development consent was that he did not consider that it was necessary because the works to be carried out included removing vines and the use of fill from within the site, and because the development did not involve the erection of a permanent structure. 41Mr Quirk readily acknowledged that the development was undertaken to satisfy a "commercial imperative to expand the seating capacity and parking capacity at the Winery so as to allow more patrons to attend the open air concerts and park on the site". 42Mr Quirk stated no works were carried out on the Land after the cease work order was served by the council, other than the laying of turf to settle dust. In addition, soil and siltation fencing was erected on the boundary of the Land in order to prevent erosion and the consequent spill of any material into the neighbouring waterways. 43Mr Quirk was forthcoming with his remorse stating in his affidavit that: I am deeply sorry for allowing the earthworks and removal of vines to be carried out contrary to the planning laws and I unreservedly apologise for it. I accept that my understanding of the requirement for development consent was wrong at the time and that I should have enquired about the need for a development application to be made before the works were carried out. 44Mr Quirk was cross-examined on his evidence. First, Mr Quirk conceded that while he could not remember, he could not deny that he had been told by the council on 24 June 2009 that he needed development consent to carry out the works. Second, Mr Quirk agreed that on 14 August 2009, in his meeting with Ms Tupper and in subsequent correspondence with the council, at no point had he ever refuted that he had been told by the council prior to the works commencing that development consent was required. Third, although initially reluctant to admit it, Mr Quirk agreed that if the venue was not ready for the B52s concert, it was possible that the promoter, who had pre-sold tickets, could move the concert to another venue. Fourth, Mr Quirk told the Court that Mitchell Bros regularly attended the site to carry out minor works and to maintain the roads on the land, which were frequently in need of repair due to heavy rains. In particular, it was his opinion that the invoice for regrading works from Mitchell Bros issued after the date of the cease work order was so minor that it was unlikely to constitute further development in contravention of the order, although he could not recall precisely what it was for. 45Bimbadgen also relied on the affidavit of Mr Dyer. In that affidavit Mr Dyer deposed to the following: (a) that at sometime before the commission of the offence, he specifically asked Mr Quirk about the need to obtain development consent in relation to the earthworks the subject of the offence. Mr Quirk replied that Bimbadgen would not need development consent as it was only "only using fill from the site and not building any structures"; (b) that he did not seek professional advice or advice from the council in relation to whether development consent was required for the carrying out of the earthworks and he now admited that he was wrong to not do so; (c) that after he had been made aware of the need for development consent he took a much more active role in overseeing Mr Quirk's duties and that he attended the site on 14 August 2009 in order to ensure that the stop work order by the council had been complied with; (d) that in the future, he would take a more interventionist and supervisory role where the possibility arose for the need for development consent; (d) that on behalf of Bimbadgen he unreservedly apologised for the breach; (e) that Bimbadgen had no prior convictions; and (f) that Mr Quirk no longer was employed by Bimbadgen. 46Mr Dyer was also cross-examined. The cross-examination revealed that the revenue to Bimbagen for a concert comprised only of food and wine sales (that is, not ticket sales), with a "good concert" (that is, one with a high volume of ticket sales) resulting in a profit of $30,000-$50,000, but with losses being made on concerts where a limited number of tickets were sold. Mr Dyer agreed that the concerts provided, however, an indirect marketing and promotional benefit to Bimbagen. Applicable Legal Principles in Determining Sentence Purposes of Sentencing 47Section 3A of the Crimes (Sentencing Procedure) Act 1999 ("CSPA") provides that the purpose of imposing a sentence on the offender includes: 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. Correct Approach to Sentencing 48It is a basic principle of sentencing law that the sentence imposed by the Court for an offence must both reflect, and be proportionate to, the objective circumstances of the offence and the personal or subjective circumstances of the defendant ( 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). 49Section 21A of the CSPA further identifies matters that the Court must take into account when sentencing, including those in aggravation (s 21A(2)) and those in mitigation (s 21A(3)). 50The correct method of sentencing is the instinctive synthesis method having regard to all of the relevant objective and subjective circumstances surrounding the commission of the offences ( Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 at [35]-[39], [50]-[84] and [136]-[139]). 51In so doing, the Court must not take facts into account in a manner that is adverse to Bimbadgen unless those facts have been established beyond reasonable doubt. But if there are circumstances that the Court proposes to take into account in favour of Bimbadgen, it is enough that those circumstances are proved on the balance of probabilities ( R v Olbrich [1999] HCA 54; (1999) 199 CLR 270 at [27]). Objective Considerations 52The primary factor the Court must consider when determining sentence is the objective gravity or seriousness of the offence. This is determined by consideration of the upper most limit of a sentence that is justified as appropriate or proportionate to the gravity of the crime in light of its objective circumstances ( Veen v The Queen (No 2) at 472, 485-486, 490-491 and 496; Hoare v The Queen [1989] HCA 33; (1989) 167 CLR 348 at 354), and the lower limit of the offence by allowing for consideration of the subjective factors of the matter to produce a proportionate range that reflects the objective gravity of the offence ( Pittwater Council v Scahill [2009] NSWLEC 12; (2009) 165 LGERA 289 at [50] and Plath v Rawson [2009] NSWLEC 178; (2009) 170 LGERA 253 at [46]). 53In determining the objective gravity or seriousness of the offence, the circumstances of the offence to which the Court may have regard include ( Bentley v BGP Properties Pty Ltd [2006] NSWLEC 34; (2006) 145 LGERA 234 at [163], Gittany Constructions Pty Ltd v Sutherland Shire Council [2006] NSWLEC 242; (2006) 145 LGERA 189 at [110] and Rawson at [48]): the nature of the offence; the maximum penalty for the offence; the objective harmfulness of Bimbadgen's actions; Bimbadgen's state of mind in committing the offence; Bimbadgen's reasons for committing the offence; the foreseeability of the risk of harm to the environment; the practical measures available to Bimbadgen to avoid harm to the environment; and Bimbadgen's control over the causes of harm to the environment. Nature of the Offence 54A fundamental consideration of relevance to environmental offences is the degree to which, having regard to the maximum penalties provided by the statute in question, the offender's conduct would offend against the legislative objectives expressed in the statutory offence ( Director-General, Department of Environment and Climate Change v Rae [2009] NSWLEC 137; (2009) 168 LGERA 121 at [15] and Rawson at [49]). 55As Biscoe J noted in Willoughby City Council v BCPD Pty Limited [2010] NSWLEC 163 in the context of an offence against s 76A(1)(a) of the EPAA (at [30]): 30 Carrying out development without consent in contravention of s 76A(1)(a) of the EPA Act tends to undermine several of the objects of the Act expressed in s 5: namely, to encourage the proper, development and conservation of cities for the purpose of promoting the social and economic welfare of the community and a better environment; to encourage the promotion and co-ordination of the orderly and economic use and development of land; and to provide increased opportunity for public involvement and participation in environmental planning and assessment. 56The actions of Bimbadgen in carrying out the earthworks without consent under the EPAA eroded the planning controls that were in place and clearly offended against the legislative objects expressed in s 5 of the Act. Maximum Penalty 57The maximum penalty for the offence is $1,100,000 (s 126 of the EPAA). The imposition of a monetary penalty of this magnitude demonstrates the seriousness with which offences against the EPAA are viewed by the legislature ( Scahill at [52]). 58The maximum statutory penalty is of considerable significance in determining the objective gravity of the offence (Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 at 698 and Markarian v The Queen (at [31]). 59However, it must be recognised that there is a broad spectrum of matters that can give rise to an offence under s 125 of the EPAA (Council of the Municipality of Kiama v Pacific Real Estate (Warilla Pty Ltd) [2009] NSWLEC 191 at [71]). Harm Caused by the Commission of the Offence 60In assessing the seriousness of the commission of the offence, the Court has regard to the extent of the harm to the environment. Harm to the environment need not only be considered in terms of actual harm, but must also include the potential or risk of harm (Environment Protection Authority v Waste Recycling and Processing Corp [2006] NSWLEC 419; (2006) 148 LGERA 299 at [145]-[147]). 61It was agreed in the statement of facts, and I find accordingly, that no actual harm to the environment was caused by the commission of the offence and no harm occurred to the amenity of the surrounding area. This is reflected in the fact that Bimbadgen subsequently acquired consent for the earthworks carried out up to 14 August 2011, and for further development of the land. This is so notwithstanding that the unauthorised works were extensive. 62However, as noted above harm was caused to the planning system insofar as Bimbadgen's actions undermined the planning controls imposed by the EPAA and given effect to by the council (Lane Cove Council v Wu [2011] NSWLEC 43 at [45] and Mosman Municipal Council v Menai Excavations Pty Ltd [2002] NSWLEC 132; (2002) 122 LGERA 89 at [35]). Bimbadgen's State of Mind 63The offence is one of strict liability which means that mens rea is not an element of the offence. But the state of mind of Bimbadgen is relevant to assess the objective seriousness of the offence. A strict liability offence that is committed intentionally will be objectively more serious than one not so committed (Rae at [42], Gittany at [123], Garrett v Freeman (No 5) [2009] NSWLEC 1; (2009) 164 LGERA 287 at [68] and [356], Director-General, Department of Environment and Climate Change v Hudson [2009] NSWLEC 4; (2009) 165 LGERA 256 at [75], Hardt v Environment Protection Authority [2007] NSWCCA 4; (2007) 156 LGERA 337 at [53] and Scahill at [69]). 64The council submitted that the offence was committed intentionally by Bimbadgen. In this regard it relied on the fact that, according to the council, Mr Quirk was informed by the council prior to carrying out the earthworks that development consent was required. 65Bimbadgen, by contrast, submitted that at no time did Mr Quirk intentionally contravene the EPAA. It drew support from the fact that Mr Quirk maintained that he could not recall any conversation with the council in which it told him that he would need development consent. It was further submitted by Bimbadgen that to the extent that Mr Quirk turned his mind to the need for development consent to carry out the earthworks, he had formed the view that development consent was not required for the earthworks because all the cut and fill was taken from the site and no permanent structures were erected. Thus, he did not deliberately seek to develop the Land absent consent. 66I find beyond reasonable doubt that Bimbagen intentionally committed the offence with which it was charged. In so doing, it follows that I find that Mr Quirk was aware at the time that the development was carried out that it was necessary for Bimbadgen to have obtained development consent from the council for the earthworks and that he knew that Bimbadgen had not done so. That is not to say that I do not accept that by the time Mr Quirk came to give his evidence to this Court he genuinely did not recall the conversation with the council officers on 24 June 2009. But it is his, and thus Bimbadgen's, state of mind at the time of the commission of the offence that is critical and it is at this stage that I accept the submissions of the council. 67I do so for several reasons. First, the unchallenged evidence of the council officers, Ms Turner and Ms Porter, is that Mr Quirk was told that he needed development consent to carry out the works. Second, the nature and purpose of the meeting on 24 June 2009, as described not only by the council workers, but also by Mr Quirk himself, meant that it was highly unlikely that Mr Quirk could have failed to grasp that development consent was required. Third, while he may not be able to presently recall the conversation with the council on 24 June 2009, it is inconceivable, because of its significance, given its reiteration on 14 August 2009 and in correspondence in September 2009, that he would not have sought in his communications with the council to clarify his position by way of denial. In my opinion, Mr Quirk's silence in the face of allegations by the council that he had been expressly put on notice that development approval was required amounts to his tacit acceptance of the correctness of the council's assertions in this regard. 68I also accept, to the requisite standard, that the reason for this deliberate flouting of the law was to ensure that the development was complete and the venue ready for the imminent B52s concert that had pre-sold tickets exceeding the existing capacity of the land. I find that this was the "commercial imperative to undertake the works" that Mr Quirk referred to in his conversation with Ms Tupper on 14 August 2009. 69The fact that Bimbadgen intentionally committed the unlawful act is an aggravating circumstance of the conduct constituting the offence that increases the objective seriousness of the offence ( Scahill at [69] and [79]; Rawson at [99]-[100]; Plath v Glover [2010] NSWLEC 119 at [45] and Director-General, Department of Environment, Climate Change and Water v Linklater [2011] NSWLEC 30 at [50]). 70The council further submitted that Bimbadgen defied the cease work order by continuing with the development after the order was received. The council relied on the Mitchell Bros invoice for the regrading works referred to above. 71However, in my opinion, the council has failed to demonstrate beyond reasonable doubt that the invoice related to the works the subject of the charge. Absent an explanation for the invoice provided by Mitchell Bros, the evidence was, in my view, equivocal. As Mr Quirk stated, the roads on the Land were routinely maintained by Mitchell Bros and the invoiced sum was sufficiently small that it could have related to a variety of tasks undertaken by them, none of which were related to the unlawful development. Mr Quirk was adamant that once the cease work order was issued to Bimbadgen all unauthorised development ceased. This evidence was confirmed by the evidence of Mr Dyer. Reasons for Committing the Offence 72A factor by which the objective seriousness of the offence may be augmented is the reason for its occurrence (Axer Pty Ltd v Environment Protection Authority (1993) 113 LGERA 357 at 366; Bentley at [237]; Gittany at [140]; Rae at [47]). If the offence is found to be committed for financial gain this will increase its objective seriousness ( Gittany at [141], Bentley at [246]-[247], Scahill at [82], Hudson at [78], Rae at [49] and CSPA s 21A(2)(o)). 73It was not a matter of controversy that the reason for the commission of the offence was to allow more space to accommodate a greater number of concert attendees. To this end, both Mr Dyer and Mr Quirk readily conceded that the earthworks were carried out for commercial reasons. 74While Bimbagen eschewed any suggestion that this commercial motive was exacerbated by the timing constraint caused by the upcoming B52s concert, as I have inferred above, in my view this is the real reason why the offence was committed. 75I therefore find that the offence was committed for financial gain. This serves to aggravate its objective seriousness. Foreseeability of the Risk of Harm 76The extent to which Bimbadgen could reasonably have foreseen the harm caused by the commission of the offence is a relevant factor to be taken into account in the determination of sentence. Having regard to the considerable nature and extent of the earthworks, I find that Bimbadgen could have reasonably foreseen this risk of harm. This foresight is reinforced by the fact that the council submitted that it informed Bimbadgen that it would need development consent to carry out the earthworks. Control Over the Causes of Harm and the Practical Measures Available to Bimbadgen to Avoid It 77As the owner and operator of the Land, as well as the employer of all staff working at the site and the entity that engaged Mitchell Bros, Bimbadgen had complete control over the operation of the premises. At all times, it was Bimbadgen, through Mr Quirk, who directed Mitchell Bros to carry out the earth works and remove the vines. It follows that Bimbadgen had complete control over the causes that gave rise to the offence. 78Further, given that Bimbadgen had complete control over the earthworks, it could have taken practical measures to avoid their commission. These measures were simply that Bimbadgen should have refrained from commencing the earthworks until the proper consents had been obtained by it. At the very least, it could have sought professional advice about whether development consent was necessary. Conclusion on Objective Circumstances 79Having regard to the nature of the offence; the high maximum penalty; the extent of harm; the state of mind of Bimbadgen in committing the offence; the practical measures available to Bimbadgen to prevent the harm; the reasonable foreseeability of the risk of environmental harm likely to be caused by the commission of the offence; the extent to which Bimbadgen had control over the causes that gave rise to the offence; and the commercial motive in committing the offence, I find that the offence committed is one of low to moderate objective gravity. The Subjective Circumstances of Bimbadgen 80A proportionate sentence requires the Court to take into account any personal or mitigating factors present (Gittany at [144] and the authorities cited thereat, Rae at [55] and s 21A(3) of the CSPA). 81The subjective circumstances of Bimbadgen to be considered relevantly include: any prior criminal record; a plea of guilty; any expressed contrition and remorse; Bimbadgen's good character; and any cooperation with, or assistance to, the council as the prosecuting and regulatory authority. Prior Criminality 82Bimbadgen has no prior convictions for any environmental offences (s 21A(3)(e) of the CSPA). Plea of Guilty 83Bimbadgen pleaded guilty at the first available opportunity and must be afforded the full 25% discount for the utilitarian value of the plea of guilty (R v Thomson; R v Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383 and ss 21A(3)(k) and 22 of the CSPA). Prior Good Character of Bimbadgen 84I accept that Bimbadgen is, but for the commission of the offence, of good character (s 21A(3)(f) of the CSPA). Assistance to the Council 85It was agreed by the parties that, apart from the contention by the council that Bimbadgen continued works after the stop work order from the council, Bimbadgen has cooperated fully with the council. Having rejected the assertion that Bimbagen continued to carry on the development after the cease work order was issued, I find that Bimbadgen has assisted the council in its prosecution of the charge. The cooperation commenced with the investigation and preparation of the matter for hearing, and culminated in the filing of the statement of agreed facts, which contained several admissions adverse to the interests of Bimbagen (ss 21(A)(3)(m) and 23 of the CSPA). It also included, at the council's request, Bimbadgen erecting sediment fencing. Contrition and Remorse 86The contrition and remorse of a defendant is able to be taken into account as a mitigating factors in determining the appropriate sentence for an offence (s 21A(3)(i) of the CSPA). Remorse for the commission of the offence with which Bimbadgen has been charged has been expressed in the affidavits of both Mr Quirk and Mr Dyer and in their oral evidence before the Court. I therefore find that Bimbadgen has genuinely demonstrated its contrition as a mitigating factor to be considered in determining an appropriate sentence. Costs 87Bimbadgen has agreed to pay the prosecutor's costs as agreed or assessed. These costs are estimated to be between $60,000-70,000, although no evidence was tendered of their actual quantum. 88There is no question that this Court is empowered to order a defendant to pay the prosecutor's costs as specified or as may be determined under s 257G of the Criminal Procedure Act 1986 (see s 257B of that Act). 89The payment of a prosecutor's costs is an aspect of punishment ( Environment Protection Authority v Barnes [2006] NSWCCA 246 at [78]; Rae at [68]) and may be considered in the determination of the appropriate penalty, including as a factor that acts in reduction of any penalty imposed. 90In Liverpool City Council v Leppington Pastoral Co Pty Ltd [2010] NSWLEC 170 Biscoe J noted that in this jurisdiction an order for costs against a defendant is routinely made. Thus his Honour opined (at [50]): 50 Consequently, payment of the prosecutor's costs is a constant aspect of punishment such that it is embedded in the general pattern of sentencing for all offences. Therefore, of itself, it does not generally seem to be a reason for reducing a penalty in a particular case lower than that suggested by the general pattern of sentencing for the relevant offence. Something more would seem to be required. 91I have not construed his Honour's comments as resiling from the general principle stated in Barnes that the payment of a prosecutor's costs may be considered in the determination of the appropriate penalty, including as a factor that acts in reduction of any penalty imposed ( Environment Protection Authority v Huntsman Corporation Australia Pty Ltd [2011] NSWLEC 39 at [139]). I have accordingly taken this factor into account. Conclusion on Subjective Considerations 92The subjective considerations of Bimbadgen operate to mitigate to a reasonable degree the penalty to be imposed by the Court. Deterrence, Denunciation and Retribution 93The penalty must be sufficient to deter others who, by oversight or inadequacy, risk committing an offence against the regulatory regime under EPAA in the hope that should the oversight or inadequacy be exposed, only nominal penalties will be applied. There is also a need for the sentence to serve as a general deterrent to prevent others committing similar offences against the EPAA ( Plath v Hunter Valley Property Management Pty Ltd [2010] NSWLEC 264 at [34], Scahill at [109] and Axer Pty Ltd v Environment Protection Authority (1993) 113 LGERA 357 at 367). 94In respect of specific deterrence, it was submitted by Bimbadgen, which I accept, that it was not a relevant consideration in the determination of an appropriate penalty in the circumstances of this case. This is because the offence was an isolated incident for a company that had, until the charge, no prior convictions and had always sought approval for any proposed development on the Land. In addition, Bimbadgen has now put processes in place to ensure that development consent is obtained where necessary for all future works. Consequently the likelihood of recidivism is so low as to be negligible. I agree. 95In respect of general deterrence, however, the normative effect of a fine must send a message to companies carrying out works to which planning regulations apply that it is necessary to obtain the proper approvals before commencing work, and that retrospective approval of works illegally carried out is never sufficient and will be discouraged in the strongest possible terms (see Keir v Sutherland Shire Council [2004] NSWLEC 754 at [13] and [15], Scahill at [44], and Menai Excavations at [35]). Accordingly, I find that there is a need to include general deterrence as a component of the penalty to be imposed. 96The imposition of an appropriate sentence serves the purpose of ensuring that retribution and denunciation are properly addressed. The sentence of this Court is a public denunciation of Bimbadgen and must ensure that it is held accountable for its actions and is adequately punished ( Rae at [8]-[9], Environment Protection Authority v Hanna [2010] NSWLEC 98 at [34], Bentley at [141] and ss 3A(a) and (e) of the CSPA). I also take these elements of sentencing into account. Consistency in Sentencing 97A relevant consideration in sentencing is the ascertainment of the existence of a general pattern of sentencing by the Court for offences such as the offence in question ( Gittany at [179]-[182] and Rae at [69]). The proper approach is for the Court to look at whether the sentence is within the range appropriate to the gravity of the particular offence and to the subjective circumstances of the particular offender, and not whether it is more severe or more lenient than some other sentence which merely forms part of that range ( Gittany at [182]). 98Of course care must be taken because each case is different and a sentence in one case does not demonstrate the limits of a sentencing judge's discretion ( Axer at 365, Cabonne Shire Council v Environment Protection Authority [2001] NSWCCA 280; (2001) 115 LGERA 304 at 312 and Hili v The Queen; Jones v The Queen [2010] HCA 45; (2010) 272 ALR 465 at [54] ). 99The pattern of sentencing against which the present case falls to be considered, namely, cases where work was commenced absent having obtained all the necessary regulatory approvals, was examined by me in detail in Pacific Real Estate (at [112]-[115]). Given its relevance to the present case, I repeat this review in full: [112] ... in the judgment of Pain J in Council of the Municipality of Kiama v Furlong [2009] NSWLEC 139 (at [35]-[40]): [35] ...The Council submitted that relevant cases for the purpose of considering an appropriate penalty were set out in The Council of the City of Ryde v Felici [2009] NSWLEC 27. In that case the defendant, a builder, completed an owner's consent form relating to a DA for extensions to his residential property. Before the DA was lodged the defendant commenced the works, being the extension of an existing bedroom and the addition of a new garage. The works were in accordance with the plans lodged with council as part of the DA. The defendant was aware that the DA required determination before works could be lawfully commenced. At the time of the sentence hearing a building certificate had been applied for but not yet determined by the Council. The works were not extensive and the offence was described as being at the lower end of seriousness although not trivial. A penalty of $16,000 was imposed after taking into account mitigating factors. [36] In Woollahra Municipal Council v Byrnes and Consolidated Byrnes Holdings Pty Ltd [2002] NSWLEC 125 a swimming pool was constructed without development consent. Consent had been sought after construction began but was refused. It was found that the defendants deliberately broke the law for their convenience. The individual defendant had a prior conviction. A plea of guilty was entered on the day of the hearing and the defendant expressed contrition and remorse. A penalty of $10,000 was imposed for the individual and $2,000 for the company. [37] Byres v Leichhardt Municipal Council [2006] NSWLEC 82 was an appeal to the Court against a penalty of $12,000 imposed by a local court for carrying out excavation and alteration of a subfloor area without development consent. The maximum penalty a local court can impose is $110,000. The development was extensive and may have compromised the integrity and stability of the house and its foundations. The work was undertaken negligently as it was carried out without regard to the health and safety of entrants to the house by someone with no building or engineering expertise. The council issued a stop work order. The appellant pleaded not guilty until three days before the local court hearing, there was little evidence of contrition and remorse and the appellant's cooperation was described as patchy. The appeal was dismissed and the penalty of $12,000 confirmed. [38] In The Council of the Municipality of Kiama v Gerringong Developments Pty Limited [2007] NSWLEC 257 alteration of a motel and restaurant was carried out without the necessary development consent. The changes included an increase in the number of units, three new terraces, ten new courtyards and construction of a new lap pool. A development application for the work had been lodged but not determined at the offence date. A stop work order was issued but not complied with. The defendant was aware the works were unauthorised. It was an aggravating circumstance that work continued after the stop work order. The company's director expressed contrition and remorse. Other mitigating factors included the early guilty plea, the defendant's good character and the cooperation with the prosecutor. A penalty of $20,000 was imposed. [39] In Maitland City Council v Link Building Services Pty Limited [2008] NSWLEC 71 45 items of building work on a hotel were carried out in a way inconsistent with a consent granted by the council. The sole director of the defendant stated he had no concern about non-compliance and it was held that the action was a deliberate and wilful contravention of the EP&A Act for commercial gain. Lloyd J described the breach as serious. No contrition or remorse was expressed. A penalty of $17,500 was imposed taking into account the very large amount of prosecutor's costs the defendant agreed to pay (approximately $80,000). [40] In Hunter's Hill Council v Touma [2008] NSWLEC 227 the defendant carried out development including the construction of office space, a kitchen and a bathroom prior to obtaining consent for the work. A development application had been lodged during the carrying out of the building work. The defendant expressed regret in not complying with the law but believed at the time consent would be forthcoming. The defendant had no previous convictions, had pleaded guilty at the earliest opportunity and had cooperated with authorities. A penalty of $15,000 was imposed. [113] In Furlong itself, the defendant was fined $11,000 for unauthorised building works in conjunction with approved renovations to an existing dwelling house in Gerringong. The renovations were subsequently regularised. No actual harm to the environment occurred and there were a number of mitigating factors. [114] In Bankstown City Council v Taouk Constructions Pty Ltd [2004] NSWLEC 402 a penalty of $30,000 was imposed in circumstances where the unapproved work continued for approximately three months and were deliberately carried out. [115] Finally, in Minister for Planning v Fancott Pty Ltd [2009] NSWLEC 170, the Court imposed a penalty of $24,500 (after discounting for an early guilty plea, no prior convictions, cooperation with the prosecuting authority and a genuine expression of contrition) where the defendant constructed a tourist accommodation lodge at Thredbo without having obtained the necessary development consent and in the absence of having obtained a construction certificate. 100In Pacific Real Estate the defendant pleaded guilty to two breaches of s 125 of the EPAA for carrying out earthworks without development consent and for carrying out works contrary to a development consent. The maximum penalty for each offence was $1.1 million. The defendant was fined a total of $32,500 in circumstances where there was no harm to the environment, the defendant's actions were classified as intentional, the reason for the commission of the offences was commercial, the defendant had no prior convictions, the defendant was of prior good character, the defendant pleaded guilty and the defendant provided assistance to authorities. Further, the defendant was ordered to pay the prosecutor's costs in the sum of $46,000. 101Both the council and Bimbadgen submitted that the circumstances of this case were analogous to those in Fancott and Pacific Real Estate , albeit, Bimbadgen submitted, with the qualification that in both those cases the defendants had been charged with more than one offence. And, taking into account the fact that in Pacific Real Estate the defendant had, unlike the present case, carried out works after being directed to cease doing so. Moreover, the earthworks carried out in Pacific Real Estate were to enable the construction of an amusement ride, which if not constructed properly had the capacity to place human lives at risk. The latter factor has no application to the present case. 102I accept, at least to some extent, the submissions of Bimbadgen that the commission of the offences in Fancott and Pacific Real Estate were objectively more serious than the present offence with which Bimbadgen has been convicted, and therefore, warranted a higher penalty being imposed than would be appropriate here. Appropriate Penalty to Be Imposed 103Synthesising both the objective circumstances of the offence as mitigated by the subjective circumstances of Bimbadgen, including a 30% discount applied for Bimbadgen's early guilty plea, its cooperation with the council and the other subjective factors discussed above, and having regard to the existing pattern of sentencing, I consider that an appropriate penalty to be imposed is a fine in the sum of $20,000. Orders 104For the reasons articulated above, the Court makes the following orders: (1) Bimbadgen is convicted of the offence as charged; (2) Bimbadgen is fined the sum of $20,000; and (3) pursuant to s 257B of the Criminal Procedure Act 1986 Bimbadgen is to pay the prosecutor's costs of the proceedings as agreed or assessed. ********** 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: 19 August 2011