38 In Axer, however, Badgery-Parker J acknowledged the difficulty in applying this principle (at 365):
There is always a difficulty in attempting to compare the penalty in one case with the penalty in another because of the wide divergence of facts and circumstances; that task is difficult enough when one has the full text of all the relevant judgments and more difficult where the material is provided in this summary form.
39 In applying the principle of even-handedness, the prosecutor invites the court to consider the decisions of the Court in the following cases, which similarly concerned contraventions of development consents.
40 In Ku-ring-gai Council v Nettcorp Pty Ltd [2003] NSWLEC 203, Cowdroy J fined an offender $35,000 (after a $5,000 discount) for the removal of ten trees contrary to two conditions of consent. Cowdroy J (at par [21] and [29]) found that these were serious offences and the culpability of the defendant was high as its conduct had not resulted from accident, inadvertence or negligence, but was deliberate. As such, I find that this decision does not provide assistance, as the deliberate removal of trees cannot be considered to be analogous to the reckless construction as in this instance.
41 In Sutherland Shire Council v Upper Class Developments Pty Ltd [2003] NSWLEC 414, Pain J also found that the offender had deliberately contravened conditions of consent and imposed a total fine of $15,500 for five offences, three of which were for the carrying out of development contrary to conditions of consent. However, in that case her Honour also held that the breaches were not serious as they were not wilful or negligent and the environmental consequences were only very minor. It is clear that the facts in that case differed substantially from those in the current proceedings; therefore, I do not find this decision helpful in assessing penalty in this case.
42 Similarly, Bankstown City Council v Taouk Constructions Pty Ltd [2004] NSWLEC 402 does not provide any assistance as, although the offence was serious, it also involved a deliberate breach of the law and there were no adverse environmental consequences. In that case, McClellan J fined the offender the sum of $30,000 for constructing a mixed residential/commercial building contrary to conditions of consent. The offender had made an application under s 96 of the EP&A Act for the addition of the residential component, but had started the modifications prior to the determination of the application which was subsequently approved. McClellan J found that the offender was an experienced developer and had proceeded in advance of the determination of the s 96 application for its own financial gain.
43 As previously noted at par [33], Keir also involved an appeal against the severity of sentences imposed for contraventions of s 76A of the EP&A Act, where an offender and his company had each been fined $25,000 in the Local Court. McClellan J upheld the appeal by the company on the basis that it was the alter ego of Mr Keir (at pars [16-17]) and reduced the fine to $10,000, although dismissed the appeal by Mr Keir. Consequently, the total fine on Mr Keir and his company amounted to $35,000. In that case, McClellan J recognised that the offences were serious and constituted deliberate breaches of the law. Although the facts of that case are very similar to those in this case, the decision does not assist the court as there is a clear difference between the deliberate breach in that case and the mere reckless breach the subject of these proceedings.
44 In Sutherland Shire Council v Nustas [2004] NSWLEC 608 Pain J fined an offender the sum of $11,000 for substantially injuring three trees which were required to be protected under conditions of consent and pursuant to s 126(3) of the EP&A Act ordered that the trees to be replanted and maintained with the imposition of a $15,000 bond. Relevantly, her Honour found the offence was a reasonably serious matter although accepting that the defendant's actions were negligent and careless rather than deliberate.
45 By considering the decisions above and applying the principle of even-handedness, the Council submits that the fined imposed on the offender by the learned Magistrate was an appropriate exercise of the Magistrate's sentencing discretion. Mr D Gasic, appearing for the offender, submits, however, that all of these cases may be distinguished and do not assist the court in applying the principle of even-handedness to determine the appropriate penalty in this case. In the alternative, Mr Gasic invites the court to consider the decisions in Hornsby Shire Council v Atifame Pty Limited & Anor [1999] NSWLEC 69 and Willoughby City Council v P and V Masonry Pty Limited [2003] NSWLEC 312.
46 The facts in Hornsby involved contempt proceedings for breaches of court orders which had been made in respect of Class 4 proceedings declaring contraventions of a development consent. In that case, Pearlman J imposed a fine of $5,000 and in doing so acknowledged the lack of precision in respect of the orders and subsequent Council instructions caused confusion during construction. In light of this finding, her Honour held (at par [39]) that the offender and its director "were not deliberately flouting the relevant orders" although they showed "a sloppiness and lack of care in ensuring compliance". Although, Hornsby involved a reckless offender as in the present case, as I do not find this decision helpful in determining penalty.