NSWNSWLEC

City of Parramatta Council v Grand Epping Pty Ltd

[2021] NSWLEC 70

Land and Environment Court (NSW)|2021-06-10|Before: Pepper J

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At a glance

Source facts

Court

Land and Environment Court (NSW)

Decision date

2021-06-10

Before

Pepper J

Catchwords

(2006) 145 LGERA 234 Burwood Council v Abdul Rahman [2021] NSWLEC 46 Cabonne Shire Council v Environment Protection Authority [2001] NSWCCA 280
Environment Protection Authority v Orica Pty Ltd [2015] NSWLEC 109 Chief Office of Environment and Heritage v Rummery [2012] NSWLEC 271
(2006) 148 LGERA 299 Georges River Council v WK Strong Pty Limited
Georges River Council v Awada [2019] NSWLEC 97 Gittany Constructions Pty Ltd v Sutherland Shire Council [2006] NSWLEC 242

Source

Original judgment source is linked above.

Catchwords

(2006) 145 LGERA 234 Burwood Council v Abdul Rahman [2021] NSWLEC 46 Cabonne Shire Council v Environment Protection Authority [2001] NSWCCA 280Environment Protection Authority v Orica Pty Ltd [2015] NSWLEC 109 Chief Office of Environment and Heritage v Rummery [2012] NSWLEC 271(2006) 148 LGERA 299 Georges River Council v WK Strong Pty LimitedGeorges River Council v Awada [2019] NSWLEC 97 Gittany Constructions Pty Ltd v Sutherland Shire Council [2006] NSWLEC 242(2006) 145 LGERA 189 Gore v The Queen [2010] NSWCCA 330208 A Crim R 353 Harris v Harrison [2014] NSWCCA 84(2014) 86 NSWLR 422 Hoare v The Queen [1989] HCA 33(2004) 78 ALJR 616 Jones v R [2010] HCA 45(2010) 242 CLR 520 Liverpool City Council v Leppington Pastoral Co Pty [2010] NSWLEC 170 Mill v The Queen [1988] HCA 70(1988) 166 CLR 59 Mosman Municipal Council v Menai Excavations Pty Ltd [2002] NSWLEC 132(2002) 122 LGERA 89 Mouawad v The Hills Shire Council [2013] NSWLEC 165(2013) 199 LGERA 28 Muldrock v The Queen [2011] HCA 39(2011) 244 CLR 120 Pearce v The Queen [1998] HCA 57(1998) 194 CLR 610 Pesic v Sutherland Shire Council [2019] NSWLEC 38 Pham v R [2015] HCA 39

Judgment (56 paragraphs)

[1]

ton [2013] NSWLEC 89 Hunters Hill Council v Liu [2018] NSWLEC 108 Johnson v The Queen [2004] HCA 15; (2004) 78 ALJR 616 Jones v R [2010] HCA 45; (2010) 242 CLR 520 Liverpool City Council v Leppington Pastoral Co Pty [2010] NSWLEC 170 Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59 Mosman Municipal Council v Menai Excavations Pty Ltd [2002] NSWLEC 132; (2002) 122 LGERA 89 Mouawad v The Hills Shire Council [2013] NSWLEC 165; (2013) 199 LGERA 28 Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120 Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610 Pesic v Sutherland Shire Council [2019] NSWLEC 38 Pham v R [2015] HCA 39; (2015) 256 CLR 550 Pittwater v Scahill [2009] NSWLEC 12; (2009) 165 LGERA 289 Plath v Rawson [2009] NSWLEC 178; (2009) 170 LGERA 253 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 Thomson; R v Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383 R v Visconti [1982] 2 NSWLR 104 R v Wheeler [2000] NSWCCA 34 R v Wickham [2004] NSWCCA 193 Secretary, Department of Planning and Environment v Boggabri Coal Pty Limited [2014] NSWLEC 154 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 Zirilla v The Queen [2014] HCA 2; (2014) 253 CLR 58 Category: Sentence Parties: City of Parramatta Council (Prosecutor) Grand Epping Pty Ltd (Defendant) Representation: Counsel: Dr J Smith (Prosecutor) Ms N Hammond (Defendant)

[2]

Solicitors: HWL Ebsworth Lawyers (Prosecutor) Apex Planning and Environment Law (Defendant) File Number(s): 2020/275130 and 2020/275131 Publication restriction: Nil

[3]

Grand Epping Pty Ltd Carries Out Unlawful Development

On 11 December 2020 Grand Epping Pty Ltd ("Grand Epping") pleaded guilty to two offences of aiding, abetting, counselling, or procuring another person to commit a contravention of s 4.2(1)(b) of the Environmental Planning and Assessment Act 1979 ("the EPAA"), pursuant to s 9.50(3A)(a) of that Act.
The offences arose as a result of Grand Epping's procurement of the removal of a number of trees and the carrying out of demolition and construction activities without tree protection structures in place on land at 52 Essex St, Epping (lot 2 in deposited plan 305839) ("the land"), otherwise than in accordance with the conditions of development consent DA/805/2013 issued by Hornsby Shire Council on 23 April 2014 ("the consent").
At the commencement of the hearing the City of Parramatta Council ("the Council") was granted leave to amend one of the summonses. The amended summons was in the following relevant terms ("tree removal offence"): RELIEF CLAIMED 1. An order that the Defendant, Grand Epping Pty Ltd ACN 161 716 785 registered office Unit G03, 117-125 Murray Street, Pyrmont NSW 2009, in the State of New South Wales, appear before a judge of the Court to answer the charge that between on or about August 2018 to on or about December 2018 it committed an offence against s 9.50(3A)(a) of the Environmental Planning and Assessment Act 1979 (the Act) in that it did the following thing which was forbidden to be done: It did aid, abet, counsel or procure a person to remove trees on land in breach of s 4.2(1)(b) of the Act. Particulars The land The land comprising Lot 2 in Deposited Plan 305839 and known as 52 Essex Street, Epping (the Site). The trees Twenty-one (21) trees were removed from the Site in breach of condition 3 of Development Consent DA/805/2013 issued by Hornsby Shire Council on 23 April 2014 (the Consent). The species, location and size of the trees that were removed from the Site can be identified by the Arboricultural Impact Appraisal and Method Statement endorsed by condition 1 of the Consent: TREE SPECIES HEIGHT 3 Butia Capitata 6m 4 Butia capitate 7m 5 Michelia figo 6m 6 Cupressus sp. 7m 7 Morus sp. 7m 9 Grevillea robusta 22m 10 Grevillea robusta 12m 12 Cedrus deodara 20m 16 Pittosporum undulatum 10m 19 Grevillea robusta 14m TREE SPECIES HEIGHT 28 Grevillea robusta 18m 29 Phoenix canariensis 7m 30 Phoenix canariensis 6m 31 Phoenix canariensis 7m 32 Washingtonia robusta 16m 36 Jacaranda mimosifolia 10m 37 Jacaranda mimosifolia 10m 38 Lagerstroemia indica 9m 39 Lagerstroemia indica 9m 40 PALMS 9m 41 Camellia sasanqua 7m

[4]

The Consent The Consent was a development consent issued under Part 4 of the Act. Section 4.2(1)(b) of the Act required development on the Site to be carried out in accordance with the Consent. The manner of contravention by the defendant The Defendant aided, abetted, counselled or procured contractors to carry out works involving the removal of 21 trees on the Site otherwise than in accordance with the Consent. Date on which evidence of the alleged offence first came to the attention of an authorised officer Evidence of the offence first came to the attention of authorised officer Ryan Bollard on 25 September 2018.

The second summons charged Grand Epping as follows ("tree protection offence"): RELIEF CLAIMED 1. An order that the Defendant, Grand Epping Pty Ltd ACN 161 716 785 registered office Unit G03, 117-125 Murray Street, Pyrmont NSW 2009, in the State of New South Wales, appear before a judge of the Court to answer the charge that between on or about August 2018 to on or about December 2018 it committed an offence against s 9.50(3A)(a) of the Environmental Planning and Assessment Act 1979 (the Act) in that it did the following thing which was forbidden to be done: It did aid, abet, counsel or procure a person to carry out development on land in breach of s 4.2(1)(b) of the Act. Particulars The land The land comprising Lot 2 in Deposited Plan 305839 and known as 52 Essex Street, Epping (the Site). The trees Tree protection fencing was not erected prior to the commencement of any works on the Site as required by condition 9 of development consent DA/805/2013 issued by Hornsby Shire Council on 23 April 2014 (the Consent). The Consent The Consent was a development consent issued under Part 4 of the Act. Section 4.2(1)(b) required development on the Site to be carried out in accordance with the Consent. The manner of contravention by the defendant The Defendant aided, abetted, counselled or procured contractors to carry out works involving the demolition of an existing dwelling and associated structures on the Site otherwise than in accordance with condition 9 of the Consent. Date on which evidence of the alleged offence first came to the attention of an authorised officer Evidence of the offence first came to the attention of authorised officer Ryan Bollard on 25 September 2018.
This judgment concerns the sentence to be imposed consequent upon Grand Epping's pleas of guilty to the charges.

[5]

Legislative Framework

Section 4.2(1) of the EPAA relevantly provides that: 4.2 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.
Section 9.50(3A) of the EPAA states: 9.50 Offences against this Act and the regulations (3A) A person who - (a) aids, abets, counsels or procures another person to commit, or (b) conspires to commit, an offence against this Act or the regulations arising under any other provision is guilty of an offence against this Act or the regulations arising under that provision and is liable, on conviction, to the same penalty applicable to an offence arising under that provision.

[6]

Grand Epping Subdivides the Land to Construct Residential Dwellings and Removes 21 Trees

The facts giving rise to the commission of the offences are somewhat complex. In light of the matters in dispute between the parties they are set out in detail below.

[7]

The Land

The land comprises an irregular shape with a total area of 2,186.8m2, a street frontage of 30m, and a general depth of 67m. The properties adjacent to the land include established single storey dwellings and one five storey residential flat building.
Prior to the works the subject of the summonses, a variety of ornamental, coniferous, and indigenous trees grew on and around the boundary of the land. The land also contained remnants of Sydney Turpentine lronbark Forest, which is listed as a critically endangered ecological community ("CEEC") under the Biodiversity Conservation Act 2016.
At the time the consent was granted, the land was located within the Hornsby Shire local government area. On 12 May 2016 the new City of Parramatta Council was constituted under the Local Government (City of Parramatta and Cumberland) Proclamation 2016 and the land was incorporated into the new local government area of the City of Parramatta.
The Hornsby Shire Local Environmental Plan 2013 ("Hornsby LEP") applies to the land and the land is zoned R2 Low Density Residential.
The land is located within the Essex Street Heritage Conservation Area (cl 5.10 and Sch 5 Pt 2 of the Hornsby LEP).

[8]

Grand Epping

Grand Epping is a company registered in New South Wales, the directors of which are Benjamin Yee and Ju Lim.
Grand Epping purchased the land on 29 January 2013 for the amount of $1,800,000. The land is currently listed for sale.

[9]

The Consent

On 8 August 2013 Grand Epping lodged a development application ("the DA") for approval for a subdivision of the land into four lots and the erection of building platforms to enable the construction of a dwelling on each lot.
The Council (the then Hornsby Shire Council) undertook a preliminary assessment of the DA and provided feedback to the effect that the proposal did not comply with council guidelines regarding tree preservation and allotment layout.
The DA was subsequently amended on 13 February 2014 ("the amended DA") and the number of proposed allotments was reduced to three. The amended DA also sought to relocate the building platform for proposed lot 3 in order to protect and retain a greater number of trees on the land, as requested by the Council.
The amended DA included the Arboricultural lmpact Appraisal and Method Statement prepared by Andrew Scales dated 28 November 2013 ("the Arborist Report"). The Arborist Report annexed a Tree Management Plan dated 28 November 2013 ("the Plan"). The Plan allocated all trees on the land an individual number. Of the 41 trees on the land, the Arborist Report recommended the removal of 25, namely, trees numbered 3, 4, 5, 6, 7, 8, 9, 10, 12, 13, 16, 28, 29, 30, 31, 32, 33, 34, 35, 36, 37, 38, 39, 40 and 41.
The Arborist Report recommended the appointment of a project arborist and the erection of appropriate tree protection measures under the project arborist's supervision prior to the commencement of any demolition or construction works on the land.
On 23 April 2014 the Council granted Grand Epping consent for the subdivision of the land into three lots and the demolition of the existing dwelling and associated structures on it.
In the absence of commencement, the consent would have lapsed on 23 April 2019 (see ss 4.53(1) and 4.53(4) of the EPAA).
In assessing the amended DA, the Council considered that the land contained trees which satisfied its criteria for both a significant group of trees and for an individually significant tree. The imposition of conditions was recommended to protect the trees.
Condition 1 of the consent was in the following terms: 1. Approved Plans and Supporting Documentation The development must be carried out in accordance with the plans and documentation listed below and endorsed with Council's stamp, except where amended by Council and/or other conditions of this consent. … Document Prepared by Dated Arboricultural Impact Appraisal and Method Statement Naturally Trees 28 November 2013

[10]

Although the Arborist Report supported the removal of 25 trees, the consent contained a condition stating that only tree 8 could be removed: 3. Removal of Existing Trees This development consent only permits the removal of tree numbered 8, located within the new access way immediately adjacent to Lot 2, as identified on the amended sub-division plan Sheet No.SK 8, Rev F, prepared by D-Studio Architects dated 11.2013 (TRIM Document No. D02824662). The removal of any other trees will require separate approval in accordance with Council's Development Control Plan.
The consent required conditions 9 and 10 to be complied with prior to the commencement of any works on the land: 9. Tree Protection Barriers Tree protection fencing must be erected around trees numbered 13, 14, 17, 18, 19, 20, 24, 25, 26, 27, and 35 to be retained at the nominated Tree Protection Zones (TPZ) listed below. The tree fencing must be constructed of 1.8 metre 'cyclone chainmesh fence'. 10. Tree Protection Zones (TPZ) TREE TPZ 13, 17, 18, 19 4m 14, 24, 26, 27, 35 6m 20, 25 12m

[11]

Note: A certificate from a qualified Arborist (AQF 5) is to be submitted to the Principal Certifying Authority stating that all tree protection measures are in accordance with the above and consistent.

Condition 29 of the consent required the registration of a restriction under ss 88B and 88E of the Conveyancing Act 1919 to protect the land from future development: 29. Restriction as to User - Protection of Land from Future Development The remnant Sydney Turpentine Ironbark Forest trees (including their respective Tree Protection Zones) subjects to this restriction and the area for future revegetation are to be clearly defined on the approved development plans. To inform current and future owners that the areas of remnant Sydney Turpentine lronbark Forest Endangered Ecological Community on the site is to be protected from future development, a Restriction as to User must be created under Section 88B of the Conveyancing Act 1919 identifying that the area of the site identified on the approved plans is restricted from development activities that would adversely affect these trees. A positive covenant shall be created under Section 88E of The Conveyancing Act 1919 for the "Restricted Development Areas" where the management of remnant trees all future development works including landscape shall comply with the with the forthcoming Vegetation Management Plan. All natural landscape features including natural rock outcrops, native vegetation (trees, shrubs and groundcovers), soil and watercourses are to remain undisturbed except only where affected by necessary works detailed on approved plans, or with Council's written consent. All construction works and landform modification are to be restricted to the development area as shown on the approved site plans. No machine or heavy vehicle is permitted within the "Restricted Development Areas". No encroachment of the building envelope, including the fill batter, is permitted within the restricted development areas. Note: The wording of the Restriction as to User must be to Council's satisfaction and Council must be nominated as the authority to release, vary or modify the Restriction.
Condition 30 of the consent required the planting of two local indigenous trees consistent with the CEEC: 30. Maintain Canopy Cover To maintain canopy cover, two locally indigenous trees, consistent with the species that form part of Sydney Turpentine lronbark Forest are to be planted on Lot 3. • Plantings must be appropriately spaced and placed outside the drip-line of existing trees and located at a distance greater than 4 metres from the foundation walls of a dwelling or inground pool. • Trees must reach a mature height greater than 10 metres. • The pot size is to be a minimum 25 litres and the tree(s) must be maintained until they reach the height of 3 metres. • Plantings that fail to survive or do not exhibit normal health and vigour growth characteristics for their species prior to reaching a height greater than 3 metres, must be replaced at the expense of the property owner. Note: A certificate from suitably qualified and experienced Horticulturalist is to be submitted to the Principal Certifying Authority stating that all plant stock meet the specifications outlined in 'Specifying Trees' (Ross Clark, NA TSPEC Books) and that the planting methods were current professional (best practice) industry standards at the time of planting.

[12]

The Works on the Land

On 18 August 2018 Yee used pink spray paint to mark approximately 24 trees on the land with an "X".
Sam Au of Enhance Project Management ("EP") was engaged by Grand Epping to undertake a feasibility study relating to the potential development of the land for the purpose of constructing a boarding house. Works pursuant to the consent commenced while the feasibility study was being carried out in order to prevent the consent from lapsing. Au assisted with the works by obtaining quotes at the request of Grand Epping.
In late August 2018 Au contacted Loris Piccolo from Home Demolitions Pty Ltd requesting two quotes for tree removal on the land. The first quote was for the removal of two trees, namely, trees 8 and 20, in conformity with the consent. The second quote was for the removal of all trees marked with an "X" on the land.
On 9 September 2018 Sydney Trees Demolition and Excavation Pty Ltd ("Sydney Trees") provided a quote to Au to carry out the following scope of works: DESCRIPTION AMOUNT As per scope for work to be done • 2 Trees to be removed as per scope, stump grinding included $6,800.00 + gst • As per scope, clear all shrubs and vegetation under 3mtrs $15,800.00 + gst • Set up tree protection zone and fencing around protected trees • Include trees per scope to be removed from site • Removal of house $27,800.00 + gst • Removal of shed

[13]

By way of email dated 14 September 2018, Au, acting on Grand Epping's behalf, engaged Sydney Trees to complete the following works: ● Setting up of boundary fence (supplied by John) along Essex Street frontage ● Erosion and sediment control measures as per drawing attached. ● Tree protection fences as per drawing attached, in reference to Arborist Report ● Tree protection measures as per DA condition and Arborist Report requirements ● Removal of trees (Phase as discussed and directed by Client) In addition to the Contract would be $15,800 + GST only. In summary, the work value of your contract is $27,800 + $15,800 = $43,600.00 + GST.
No project arborist was engaged by Grand Epping prior to the commencement of the development on the land.
From 22 to 25 September 2018 Sydney Trees removed trees numbered 3, 4, 5, 6, 7, 36, 37, 38, 39, 40 and 41 from the land. No tree protection barriers were installed.
On 2 October 2018 Au emailed Bader Taleb, copying Yee and John Cheah (Lim's husband), stating that (emphasis added): Our colleague Fei just did an impromptu site inspection at this project site as he was in the area. He would like to draw your attention to a few matters: • there are no/ insufficient sediment control measures on-site, please refer to the our erosion and sediment control plan. • the fence separating no.54 and our site seems to be falling apart especially near the current access driveway, please rectify this or hold up with sediment control measures, last thing we need is a complaint from the neighbour. • please put a clear signage of the PCA, Kudos, on the street-fronting fence. • please put a legible sign on the portable toilet that it is the site toilet. • please be careful with the trees, it is noted that the trees surrounding the main house have all been removed, some of which are 3m away from the house. We hope you are able to justify these trees being removed if questioned, as we are not responsible if the Council picks on this. • it is noted that the tree protection fences and tree protection zones are not set-up yet, it would be best if this could be done quickly before the Arborist arrives, or on the day he comes for his certification.
Later that day, Leo Wang of EP sent an additional email to Cheah and Yee in the following terms (emphasis added): Following Sam's email. We just want to draw a clear line that we have provided sufficient instruction that satisfy Council and PCA's requirement. However, any faulty on site or non-compliance with standard, we are not responsible for. We are not engaged to monitor the contract nor to administer the contract. None [sic] approved tree removal could be an issue, we advise you to instruct contractor to strictly follow the approval.

[14]

Consideration of Development Options on the Land

In January 2020 Yee submitted a request for a pre-lodgement meeting with the Council to discuss the following proposed development on the land: Construction of a single storey building to be used as a childcare centre for 120 places and a basement car park for 30 car spaces.
In the pre-lodgement form Yee identified the following specific issues for discussion (emphasis added): 1. Scale of the proposed centre relative to the parcel of land. 2. Heritage conservation issues. 3. Retention of trees to the west of the site. 4. Traffic impact of proposed development.

[15]

The Council's Investigation

Grand Epping nominated Yee as its corporate representative on 20 November 2018.
On behalf of Grand Epping, Yee participated in two recorded interviews with the Council on 11 December 2018 and 20 December 2019.

[16]

The Wolf Report

The Council relied upon the ecological evidence of Katrina Wolf, who affirmed an affidavit on 21 April 2021. Annexed to her affidavit was her report of the same date entitled 52 Essex Street, Epping: Individual Expert Report: Ecology Issues ("the Wolf Report").
Extracts from the Wolf Report were contained in a Statement of Agreed Facts ("SOAF") (emphasis added): [65] At the time of approval of the project, vegetation within the subject land contained a mosaic of planted native/exotic vegetation and remnant vegetation. [66] A total of 22 trees were observed to be removed within the subject land during the field survey by Cumberland Ecology. Of these trees, one is a native species which is characteristic of PCT 1281 and the Sydney Turpentine- Ironbark Forest CEEC. 'PCT 1281' is defined by Ms Wolf at paragraph 35 as "Plant Community Type (PCT) 1281 Turpentine - Grey Ironbark open forest on shale". [59] The extent of PCT 1281 within the subject land is highly modified and comprises remnant canopy over a largely cleared understorey. Due to the highly modified nature of the CEEC and the limited extent of impact, the removal of one tree is not considered to constitute a significant impact to the CEEC. However the removal of the trees represents environment harm, albeit minor in nature. [60] The existing vegetated corridor in the rear of the properties located between Essex Street and Forest Grove is limited to a very restricted and localised area, and does not connect to any conservation reserves. The clearing of 22 trees has had an actual, albeit minor impact on the vegetated corridor. [61] The value of the corridor is limited to a 'stepping stone' habitat for highly mobile and urban adapted species that are common in the Ryde LGA, and would likely be utilised as occasional foraging resources for birds and bats. The value for these species is limited for these species by the narrow width, and total area of habitat available, and it is unlikely that a local population of a threatened species would rely on this habitat for their survival. [62] In summary, the environmental harm or likely harm that has occurred within the subject land included: • Removal of 22 trees as listed in Table 2, including one tree which is characteristic of PCT 1281 and the Sydney Turpentine-Ironbark Forest CEEC; and • Reduction of the vegetated corridor located at the rear of the properties located between Essex Street and Forest Grove. [63] Remedial actions to address the environmental harm or likely harm are recommended. This includes weed management and revegetation works at the western end of the subject land. Revegtation works should include plantings of two (2) advanced size nursery stock with a minimum container size of 100 litres, and four (4) tubestock seedlings. The plantings are to be of locally-endemic native species that are representative of the Sydney Turpentine-Ironbark Forest CEEC. The advanced size nursery stock is to be one (1) Eucalyptus saligna and one (1) Syncarpia glomulifera. The four (4) tubestock seedlings are to be two (2) Pittosporum undulatum and two (2) Allocasuarina torulosa. These plantings are to be planted at the locations indicated on the mark up of the approved subdivision plans, which are annexed at Appendix E, within the area that is required to be subject to a Restriction as to User under Section 88B of the NSW Conveyancing Act 1919. [64] It is noted that there is an existing requirement for the protection and management of the Sydney Turpentine- Ironbark Forest CEEC within the Restriction as to User Restricted Development Area as identified within Condition 29 of the Consent. Therefore remedial actions should be additional to the existing requirements.

[17]

Yee's Affidavit Evidence

Yee swore an affidavit on 2 June 2021. Yee has been a director of Grand Epping since 2012. Grand Epping is one of several family companies that he has an interest in. Grand Epping's other director, Lim, is assisted in her duties by her husband, Cheah, who manages Grand Epping's business operations.
Relevantly, Yee has a Bachelor of Civil Engineering and is a registered builder. He is an experienced property developer.
As discussed above, in July 2018 Yee and Cheah commenced works on the land under the consent to prevent it from lapsing.
On 18 July 2018 Grand Epping engaged EP to formulate a proposal for the development of a boarding house on the land. Yee's principal contact at EP was Au. EP was also asked to project manage the commencement of the development under the consent works. Yee deposed that the scope of EP's work was not clearly defined and was mainly based on verbal communications between Cheah and Wang.
In September 2018, at Yee's request, Au engaged Taleb of Sydney Trees to demolish the existing dwelling and clear the land. Yee deposed that Cheah had previously engaged Taleb and that Yee therefore assumed that Taleb would comply with the consent conditions, install tree protection zones, and obtain all necessary approvals to remove the additional trees.
When Yee attended the land to mark the trees with pink spray paint, he took a copy of the Plan with him. Yee highlighted the trees requiring protection on the Plan. Yee stated that he could not recall if he had reviewed the consent before highlighting the trees on the Plan, or before attending the land, but that he was aware from reading the Arborist Report that certain trees required protection. He could not remember his rationale for marking the trees on the land, however, he noted a correlation between the highlighted trees on the Plan and the trees in the Arborist Report that had been identified as those that may be affected by the development and that had been classified as "important" and "unimportant".
Yee further noted the length of time between the granting of the consent in 2013 and the commencement of works in 2018 and said that, he "wasn't thinking in terms of its detail and was expecting the works to be competently managed by others".
Yee accepted, however, that he should have read the consent, particularly condition 3, more carefully before marking the trees for removal.

[18]

Yee's Oral Evidence

Council officers Darryl Pendlebury and Paul Horton interviewed Yee on 20 December 2019.
Yee provided the following evidence regarding the development history of the land: Q. OK. So tell me about the development application process for 52 Essex Street. Is that something you were - A. - Yes, yes. We employed an architect, a company named [DStudio], I believe, DStudio Architects in Chinatown. They engage, or they assisted us in engaging other consultants, support consultants obviously, to obtain whatever reports that we needed to obtain. The DA went into Hornsby Council in 2013 and we obtained approved, I think, in 2014 for the subdivision of one lot into three lots. That's the approval that we obtained but we sought an approval for a subdivision of one lot into four lots. And actually, we've actually gone back, recently gone back to Parramatta Council - or, well, another entity has done that on our behalf to Parramatta Council recently. Q. To do what? A. To increase the yield of the subdivision from three lots to four lots. … A. At the pre DA meeting that was held last month.
Yee also described the circumstances of the removal of the trees in the following terms: A. I might have directed someone to mark those trees. Yes, that's a possibility. Q. Did you meet any of the contractors on site at all to discuss the site? Did you personally meet anybody out there? A. Did I personally meet anybody out there? I'm pretty sure that- I don't think. I met Baeder before then but I think John may have met Baeder before the work started - … A. And in hindsight, I think given that you've produced those photographs and now jogged my memory, I think we would have had a hand - when I say 'we', I mean I may have directed Alex, I think you have spoken with Alex before, he may have been directed to be given a sheet and say told, you know, ''Those trees to go", something along those lines. That's very possible. I could have gotten John to do it. John could have done it with Bader present. But I do remember marking trees, because I was asked. But I remember … marking trees that weren't supposed to be cut, because that's more crucial.
Yee was cross-examined extensively regarding Grand Epping's state of mind at the time of the commission of the offences and its reasons for doing so.
Yee accepted that he had a sophisticated understanding of development applications and approvals (T5:44-6:13). For example, Yee was aware of the date upon which the consent would lapse (T17:50-18:16).

[19]

Evidence of Taleb

On 12 June 2020 Council officers interviewed Taleb. In his ROI Taleb described the purpose of Yee's tree-marking exercise as follows: Q. Now, that statement of, "X means it's got to go," do you base that on your experience as a tree lopper, or your instructions from- A. Experience. Both. Everyone uses Xs. No one uses a zero. Q. The owner clearly said to you-you can recall that the owner said to you - "The trees that are marked with X need removal"? A. Yes. Yes. Absolutely. How could I give him a price, how can I give you a price if you're not going to give me a price on your car? Q. So, when you say, "How can I give you a price?" you've already indicated that when you visited the site for the first time, the trees were marked. A. Yes. Absolutely. Q. So, did you base your price on the marks on the trees to - A. Absolutely.

[20]

Evidence of Au

The Council also interviewed Au on 1 October 2019. Au explained the circumstances of Grand Epping's request for two quotes from Piccolo and a quote from Taleb for the removal of the trees as follows: Q. So who was responsible for ensuring compliance with this consent? A. We told the demolisher that he had to follow the consent conditions. Q. How did you do that? A. We sent an email to the demolisher, outlining what scope roughly is required and referring back - we constantly referred back to the DA consent conditions. Q. OK. Do you have, by any chance, a copy of those emails? A. So this was one of the requests for fee proposals we sent out to one of the demolishers and that-in there it outlines what they had to do, roughly. The main scope was this rectangle up here. This asks for the removal of two trees. Q. So for the purpose of the recording, the document provided by Mr Au is a document that appears to be an email message from Mr Au to Mr Loris Piccolo of Home Demolitions. The address is loris@homedemolitions.com.au and the document appears to outline a number of changes to the scope and fees quoted as following: removal and stump the two trees highlighted in red only. And that particular item is encased in a border. Provide an option to include removal of all trees marked X on top of the two trees mentioned above. Set up tree protection zone for the circular blue dotted trees as per plan and arborist's report. Set up protection fencing as per purple dotted lines on plan, as per arborist's report too. … Q. So the second point here, it says provide an option to include removal of all trees marked X, on top of the two trees mentioned above. A. Yes. Q. Which trees are we talking about here? A. We were not sure. Q. Oh, right. A. It was the client's instruction that they had marked X on trees, which are not made known to us. So they asked us to ask the demolishers if it's possible to include those as an option. Q. When you say trees marked X, are you talking physically or on a plan, notated somewhere? A. From our understanding, it was marked physically. Q. Marked physically? OK, thank you. You said the client. Who was the client? A. John, which would be [Grand Epping]. … Q. - let me find it- "phase as discussed and directed by client", what does that mean? A. The client had, you know, intentions of what they wanted to do with the trees and which trees they wanted to remove. Q. How did they do that? A. I'm not sure. Q. Was it verbally? Or did they give you plans? Or did they give you a document? A. It was all verbal. Q. All verbal. OK. A. And we weren't made known of their final intentions.

[21]

The Purposes of Sentencing

The purposes of sentencing are set out in s 3A of the Crimes (Sentencing Procedure) Act 1999 ("CSPA"). Regard has been had to these purposes in the imposition of an appropriate sentence for the commission of the offences by Grand Epping.

[22]

Statutory Matters Required to be Taken into Account in Sentencing

Subsections 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 these 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 or Division 1A), … (m) assistance by the offender to law enforcement authorities (as provided by section 23)…
The Council bears the onus of proving beyond reasonable doubt any aggravating factor for the purpose of sentencing (Gore v The Queen [2010] NSWCCA 330; 208 A Crim R 353 at [26] and [104] and R v Wickham [2004] NSWCCA 193 at [27]). The onus of proof lies upon Grand Epping, however, to establish any factor in mitigation on the balance of probabilities (Wickham at [27] and R v Olbrich [1999] HCA 54; (1999) 199 CLR 270 at [27]).
Importantly, the sentence to be imposed on Grand Epping must be proportionate to both the objective seriousness or gravity of the offences and its 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).

[23]

Objective Seriousness of the Offences

The objective gravity of an offence fixes both 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).
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]).
A determination of the objective seriousness or gravity of the offences requires a consideration of the factors below.

[24]

Nature of the Offences

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 Limited [2006] NSWLEC 34; (2006) 145 LGERA 234 at [168]-[169]; 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]).
The objects of the EPAA are contained in s 1.3 of that Act.
The nature of the offence of failing to comply with a condition of an approval under the EPAA was articulated by Preston J in Secretary, Department of Planning and Environment v Boggabri Coal Pty Limited [2014] NSWLEC 154 (at [18]): 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].
By carrying out development in a manner contrary to the conditions of its consent, Grand Epping's conduct offended the objects of the EPAA and subverted the integrity of the planning regime in this State established by that statutory instrument.

[25]

Maximum Penalty

The maximum penalty provided for the commission of the offences reflects Parliament's view of the seriousness of the offence (Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 at 698 and Rawson at [57]).
At the time that the offences were committed, the maximum penalty for each contravention was $2 million (ss 4.2(1)(b), 9.52(3) and 9.53(1)(a)(i) of the EPAA).

[26]

The Environmental Harm Caused or Likely to be Caused by the Commission of the Offences

The environmental harm caused by the commission of an offence is a central consideration in determining its objective gravity. The concept of harm in the context of environmental offences is broad (Environment Protection Authority v Waste Recycling and Processing Corp [2006] NSWLEC 419; (2006) 148 LGERA 299 at [145]-[147]).
As referred to above, at a minimum, the commission of the offences undermined the integrity of the system of planning and development controls enacted in this State (Mosman Municipal Council v Menai Excavations Pty Ltd [2002] NSWLEC 132; (2002) 122 LGERA 89 at [35]).

[27]

Harm Caused by the Commission of the Tree Removal Offence

The Council submitted that the removal of the 21 trees caused actual substantial harm to the environment which constituted an aggravating factor. This was because of the number of the trees removed, the high landscape significance of several trees on the land, and because many of the trees were mature (for example, tree 12 was 22m tall).
In making its submission, the Council relied on the following authorities: 1. first, Pittwater v Scahill [2009] NSWLEC 12; (2009) 165 LGERA 289 where Preston J held that the harm to the environment caused by the cutting down of two trees was substantial and constituted a factor of aggravation in the sentencing exercise notwithstanding the prosecutor's concession that the impact of the offences could only be described as minimal; 2. second, Hunters Hill Council v Liu [2018] NSWLEC 108 which was a case concerning the removal of two trees subject to a tree preservation order. The trees were found to be of minor ecological importance but of high landscape significance. The Court accepted that the harm caused by their removal was substantial; 3. third, the decision in Hunters Hill Council v Gary Johnston [2013] NSWLEC 89 where the Court determined that the environmental harm caused by the removal of three trees and the part removal of a fourth tree was sufficient to constitute a factor of aggravation. The Court had regard to the landscape significance of the trees and the fact that their retention had been requested by the council in order to offset the adverse amenity impacts of the proposed development; and 4. fourth, the decision in Hunters Hill Council v Carter [2018] NSWLEC 84 in which it was held that substantial environmental harm was caused by the lopping and topping of 13 trees having regard to the quantity of the trees damaged and their maturity.
The Council contended that the harm was substantial notwithstanding the conclusions contained in the Wolf Report (the Council's expert ecologist) that: 1. due to the highly modified nature of the Plant Community Type 1282 Turpentine-Grey Ironbark open forest on shale ("PCT") present on the land and the fact that only one tree from that PCT was removed, Grand Epping's conduct in removing the trees and in failing to erect tree protection fencing did not result in a significant adverse impact to the PCT and resulted only in minor environmental harm; 2. the removal of the trees from the vegetated corridor at the rear of the land was localised and the corridor was not connected to any nature reserves. The clearing of those trees had an actual but minor impact on the vegetated corridor; and 3. it was unlikely that a local population of threatened species would rely on the vegetated corridor habitat for their survival.

[28]

Harm Caused by the Commission of the Tree Protection Offence

The Council submitted that the tree protection offence: 1. caused actual harm because had the fencing been erected in accordance with condition 9 of the consent, tree 19 would not have been removed; and 2. gave rise to a likelihood of harm in relation to trees 13, 14, 17, 18, 20, 24, 25, 26, 27 and 35, because the absence of tree protection barriers around those trees meant that they were at risk of damage or destruction by the works carried out on the land.
I agree and find that actual and likely environmental harm was caused by the commission of the tree protection offence, albeit of a minor nature.

[29]

State of Mind of Grand Epping at the Time of the Commission of the Offences

The offences charged in the summonses are strict liability offences, and therefore, mens rea is not an element of the offences. However, the state of mind of Grand Epping at the time of their commission 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 at 700; Gittany Constructions Pty Ltd v Sutherland Shire Council [2006] NSWLEC 242; (2006) 145 LGERA 189 at [123]; and Rawson at [98]).
The Council's primary submission was that the offences were committed intentionally.
Alternatively, the Council contended that the offences were committed recklessly. An offender's conduct will be found to be reckless if they are put on notice, in the sense that they believe or suspect that an act or omission may be unlawful but nevertheless proceed to engage in it without making further enquiries (see Environment Protection Authority v Sydney Water Corporation [2021] NSWLEC 4 at [171] and Director-General, Department of Environment and Climate Change v Hudson (No 2) [2015] NSWLEC 110 at [136] citing Chief Office of Environment and Heritage v Rummery [2012] NSWLEC 271; (2012) 192 LGERA 314 at [126]).
Further and in the alternative, the Council submitted that the offences were committed negligently. That is, that there was such a great falling short of the standard of care which a reasonable person would have exercised and which involved such a high risk that harm would follow that the doing of the act or its omission merits criminal punishment (Environment Protection Authority v Sydney Water Corporation [2019] NSWLEC 100 at [188]).
In my opinion, the latter state of mind may be readily dispensed with. This is because the evidence before the Court does not demonstrate to the requisite degree that the offences were committed negligently. Rather, the issue is whether the offences were committed recklessly or intentionally.
Turning first to the issue of intention, the Council's submission gives rise to the question of whether the principle in R v De Simoni [1981] HCA 31; (1981) 147 CLR 383 (at 389) precluded the Court from considering Grand Epping's state of mind by reason of the existence of a more serious offence for which a tier 1 monetary penalty applies (see s 9.52 of the EPAA).

[30]

The Tree Removal Offence Was Committed Intentionally

I do not accept Yee's explanation that he mistakenly marked the trees for removal in conformity with the documents that he referred to. I find beyond reasonable doubt that the tree removal offence was committed intentionally based on the facts relied upon above by the Council and in addition: 1. Yee's concession that he knew of the existence of condition 3 of the consent (T23:25-43 and 31:14-24); 2. Yee's inability to cogently explain why he marked the trees for removal in light of his knowledge of the conditions of consent (T25:28-50); 3. Yee's explanation as to why he had "mistakenly" marked the trees for removal on the land was inconsistent with the removal of tree 7, which had been highlighted by him on the Plan as a tree that should have been retained having regard to the Arborist Report (the content of which he had claimed was the basis for the trees that he had identified for felling on the land). Yee accepted that its removal was anomalous (T62:7-32 and Yee's affidavit at paragraph 32), and moreover, accepted that it was located in the middle of a proposed driveway; 4. Yee's claim that he had only become aware of the breach of the consent on 24 October 2018 (when he met Sykes on the land) is inconsistent with his acceptance that he was put on notice of the non-compliance with the consent as early as 2 October 2018 (following Grand Epping's receipt of the Au and Wang emails) (T26:27-27:38 and 35:41-50); 5. Yee's statement that Au was aware that Grand Epping sought the removal of the 21 trees (T22:30-50) was contradicted by Au's ROI and the email correspondence from Au to Grand Epping dated 2 October 2018; 6. Yee's statement that Sydney Trees had been engaged to obtain the necessary approvals for the tree removals was inconsistent with Au's email to Sydney Trees containing the scope of works and the quote from Sydney Trees, both of which made it clear that this had not occurred; 7. the history of negotiations between Grand Epping and the Council regarding tree retention on the land. In particular, the fact that Grand Epping's DA was initially rejected primarily due to concerns about the impact of the development on the trees on the land; 8. Yee's acceptance that he had a sophisticated understanding of development approvals (T5:44-6:13). The fact that the lapsing date of the consent was diarised in Yee's phone and that he had obtained this date by reading the first page of the consent (T17:50-18:16) evidenced his familiarity with and understanding of the development approval process; 9. Au obtaining two quotes from Piccolo in August 2018 on behalf of Grand Epping: the first for the removal of the two trees authorised by the consent and the second for the removal of the trees marked with an "X" (contrary to the consent); and 10. Au obtaining quotes from Sydney Trees for the removal of trees "as discussed and directed by [Grand Epping]" on 14 September 2018, annexing the approved consent plans clearly indicating that only two trees were permitted to be removed.

[31]

The Tree Protection Offence Was Committed Intentionally

I also find that the tree protection offence was committed intentionally, and not merely recklessly, for reasons similar to those set out above in respect of the tree removal offence. In addition, I have had regard to: 1. the history of negotiations between Grand Epping and the Council regarding the tree protection measures to be implemented on the land; and 2. the extensive tree protection recommendations contained in the Arborist Report. The Report was obtained by Grand Epping following the Council's refusal of the initial DA. It was annexed to the amended DA and to the consent.
I therefore find to the criminal standard that at all relevant times Grand Epping was aware of the need to comply with condition 9 of the consent, but did not do so.

[32]

Grand Epping's Reasons for Committing the Offences

The criminality involved in the commission of an offence is also measured 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 reasons is objectively more serious than one that is not.
The parties agreed that the value of the land increased as a result of the unauthorised removal of the trees. This fact was relied upon by the Council in support of its submission that the trees were removed for financial gain. In response, Grand Epping submitted that the trees were removed to ensure that the consent did not lapse.
The Council submitted that it was beyond reasonable doubt that Grand Epping committed the tree removal offence for financial purposes given that: 1. the trees were the primary constraint on increasing the development yield of the land. Grand Epping had proposed a number of developments dependent upon the trees being cleared; 2. Yee had no explanation for marking the trees for removal; and 3. Grand Epping's primary objective was to make money for its shareholders.
In my view the Council has not established beyond reasonable doubt that the offences were committed for financial gain. This is because: 1. Yee provided consistent evidence that the trees were removed to prevent the consent from lapsing (T17:40-45) and not otherwise (T15:43-T16:4; 17:13-22; and 25:28-50); 2. Grand Epping's preparation of a three lot subdivision proposal in case its four lot subdivision was rejected by the Council was not unusual (T68:10-11); 3. the 2019 four lot subdivision application by Grand Epping was lodged as a result of the high density development in close proximity to the land (T14:1-6); 4. there was nothing unusual about Grand Epping's consideration of the construction of a boarding house and childcare centre on the land given its activities as a property developer; and 5. the fact that the commission of the offences may have increased the development potential of the land did not mean of itself that the offences were committed for financial gain.
Similarly, the uncontroversial fact that Grand Epping's purpose was to obtain a profit for its shareholders was insufficient to support the conclusion that it committed the offences for financial gain.

[33]

Reasonable Foreseeability of the Harm Caused or Likely to be Caused to the Environment by the Commission of the Offences

The harm caused or likely to be caused to the environment by the commission of the offences was foreseeable.

[34]

Control Over the Causes of the Commission of the Offences

Grand Epping had complete control over the causes of the commission of the offences.

[35]

Practical Measures Which Could Have Been Taken to Avoid the Harm

It was accepted that Grand Epping could have taken a number of practical measures to avoid the harm occasioned as a result of the commission of the offences. For example, Grand Epping could have: 1. engaged contractors with a properly defined scope of works; 2. ensured that the scope of works under which any contractors were engaged was clearly defined to avoid breaching the consent; 3. ensured that all requisite consents for the works, including for the removal of the trees, had been obtained prior to the commencement of the development; 4. read the consent prior to marking the trees for removal with an "X"; and 5. ceased all works immediately upon becoming aware of the contravention of the consent.

[36]

Conclusion on the Objective Seriousness of the Offences

Given that the tree removal offence was committed intentionally, and that substantial actual environmental harm was caused as a result of its commission, I find the objective seriousness of that offence to be moderate to high.
With respect to the tree protection offence, having regard to my finding that it was committed intentionally, but that only minimal harm resulted, I find the offence to be of low to moderate objective seriousness.

[37]

Grand Epping's Subjective Circumstances

Within the limits set by the objective seriousness of the offences, the Court must take into consideration the subjective circumstances of Grand Epping in determining the imposition of an appropriate penalty (Environment Protection Authority v GrainCorp Operations Limited [2019] NSWLEC 143 at [116] and [190]).

[38]

The Offences Were Not Committed for Financial Gain

As discussed above, it has not been demonstrated that the offences were committed for financial gain (s 21A(2)(o) of the CSPA).

[39]

Whether the Harm to the Environment Was Substantial

As found above, the harm to the environment caused by the commission of the tree removal offence was substantial, and therefore, constitutes an aggravating factor (s 21A(3)(a) of the CSPA).

[40]

Prior Convictions

Grand Epping does not have any prior convictions (s 21A(3)(e) of the CSPA).

[41]

Assistance Provided to Authorities

I find that at all times Grand Epping assisted the Council by engaging with it in the investigation of its unlawful conduct. As a director of Grand Epping, Yee voluntarily attended two interviews with the Council. Grand Epping also participated in the preparation of a comprehensive SOAF and has agreed to remediation orders and to the payment of the Council's costs. I therefore find that Grand Epping has provided assistance to the authorities (s 21A(3)(m) of the CSPA).

[42]

Early Pleas of Guilty

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 [160]). What is regarded as an early plea will vary in the circumstances of the case (Thomson at [160(iii)]).
Grand Epping entered pleas of guilty to the offences on the second occasion the matter was before this Court. Accordingly, a full 25% discount is warranted.

[43]

Contrition and Remorse

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).
The Council submitted that Yee's affidavit indicates that Grand Epping continues to place the blame for the commission of the offences upon EP and Sydney Trees. It further emphasised that Grand Epping did not apologise to the Court or acknowledge the harm or likely harm that the commission of the offences caused to the environment.
I accept that Grand Epping has expressed a degree of remorse for the commission of the offences by ultimately accepting responsibility for the contraventions and by agreeing to carry out remedial works. However, in the absence of an apology and an acknowledgement of the environmental harm caused by the commission of the offences, full weight cannot be given to Grand Epping's expression of contrition.

[44]

Likelihood of Reoffending and Prospects of Rehabilitation

Grand Epping submitted that it was unlikely to reoffend as demonstrated by Yee's acknowledgement that it was ultimately responsible for the contraventions of the consent and given its implementation of measures to ensure that it does not re-offend.
I accept that the likelihood of Grand Epping reoffending is low and that it has good prospects of rehabilitation (s 21A(3)(g) and 21A(3)(h) of the CSPA).

[45]

No Evidence that Grand Epping is of Good Corporate Character

As the Council correctly submitted, evidence of Yee's personal good character cannot, without more, be attributed to Grand Epping. I am therefore unable to find that Grand Epping's corporate character constitutes a mitigating factor for the purposes of the sentencing exercise (s 21A(3)(f) of the CSPA).

[46]

The Offences Could Have Been Prosecuted in the Local Court

As Grand Epping submitted, the offences could have been prosecuted in the Local Court. I have taken this matter into account (Harris v Harrison [2014] NSWCCA 84; (2014) 86 NSWLR 422 at [92]).

[47]

General and Specific Deterrence

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 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 [188] and [192] and Environment Protection Authority v Rands [2019] NSWLEC 23 at [161]).
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 Axer at 359).
The principles of general deterrence in the context of environmental offending were recently discussed by this Court in Chahoud v Penrith City Council [2020] NSWLEC 167. Relevantly, the Court observed that (at [119]): 119 The Court accepts that embedded within the determination of the appropriate sentence to be imposed on Chahoud must be an element of general deterrence to ensure that members of the community are dissuaded from engaging in development and use of land absent obtaining the necessary approvals. Put bluntly, persons must be deterred from carrying out activities on land by reason of erroneous belief that because they own it, they can do what they want with it. This attitude is anathema to the statutory regime governing land use and development in New South Wales.
The remarks are apposite in the present case.
In relation to specific deterrence in Environment Protection Authority v Sam Abbas (also known as Osama Abbas) [2021] NSWLEC 57 the Court observed that (at [106]): 106 Specific deterrence has particular relevance where an offender continues to operate in the same area of operation in which the offence occurred: Environment Protection Authority v Ardent Leisure Ltd (ACN 104 529 106) [2018] NSWLEC 36 at [135] per Robson J citing Preston CJ in Environment Protection Authority v Ravensworth Operations Pty Ltd [2012] NSWLEC 222 at [48].
The Council submitted that consideration of general and specific deterrence is required in the present case to encourage property developers not to engage in conduct that contravenes conditions of consent and to ensure that Grand Epping's future property development activities are lawfully carried out.

[48]

Retribution and Denunciation

The Court must impose a sentence that achieves the purposes of denouncing the conduct the subject of the offences and making Grand Epping accountable for its actions (Pesic v Sutherland Shire Council [2019] NSWLEC 38 at [41]).

[49]

Consistency in Sentencing

The task of the sentencing 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; Hili v R; Jones v R [2010] HCA 45; (2010) 242 CLR 520 at [54]-[55]; Barbaro v The Queen; Zirilla v The Queen [2014] HCA 2; (2014) 253 CLR 58 at [28] and [40] and [41]; and Pham v R [2015] HCA 39; (2015) 256 CLR 550 at [28]-[32]). The sentence 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]).
The Council and Grand Epping directed the Court to a number of cases regarding the contravention of development consents, especially in the context of unlawful tree removal.
I have had regard to these cases. Further, in Georges River Council v WK Strong Pty Limited; Georges River Council v Awada [2019] NSWLEC 97 the Chief Judge usefully summarised a number of analogous tree removal cases as follows (at [76]): 76 In determining the appropriate penalty, the Court should be consistent with a pattern of sentencing for like offences. I have had regard to the sentences imposed by this Court in other cases involving offences of cutting or removing trees to which the parties have drawn my attention. I have considered the sentences imposed and the objective circumstances of the offences and the offenders involved that led the sentencing court to impose those sentences. The cases include: (a) Hunters Hill Council v Gary Johnston [2013] NSWLEC 89 (total removal of three trees and part removal of a fourth tree required to be retained by conditions of development consent and fined $40,000); (b) Wingecarribee Shire Council v O'Shannassy (No 6) [2015] NSWLEC 138 (unlawful earthworks and removal of six to nine trees without development consent and fined $93,500); (c) Burwood Council v Abdul Rahman (No 2) [2017] NSWLEC 177 (removal of tree in a heritage conservation area and fined $50,000); (d) Willoughby City Council v Rahmani [2017] NSWLEC 166 (removal of three trees that were part of an endangered ecological community and fined $60,000); (e) Hunters Hill Council v Liu [2018] NSWLEC 108 (removal of two trees and fined $48,000); and (f) Hornsby Shire Council v Henlong Property Group Pty Ltd (No 2) [2019] NSWLEC 17 (removal of seven trees permitted to be cleared by a development consent but before the consent became operative and fined $28,000).

[50]

Financial Means of Grand Epping

It was accepted that Grand Epping was capable of paying any monetary penalty likely to be imposed upon it by this Court (see s 6 of the Fines Act 1966).

[51]

Costs

In the exercise of its sentencing discretion in relation to the quantum of any monetary penalty to be imposed on Grand Epping, the Court can take into account the costs that an offender agrees to pay (Barnes at [78] and [88]). In doing so, the Court must be mindful that the payment of the Council'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 [2010] NSWLEC 170 at [50]).
The Court takes into consideration that the Council will be awarded its costs of the proceedings agreed in the sum of $50,000 pursuant to ss 257B and 257G of the Criminal Procedure Act 1986.

[52]

Remediation Order

Pursuant to s 9.56(3) of the EPAA the Court is empowered to make an order requiring Grand Epping to plant new trees and vegetation and to maintain these trees and vegetation to a mature growth.
The parties have agreed to the terms of a remediation order in the form annexed to this judgment at 'A'.

[53]

Totality Principle

The totality principle is a relevant consideration in determining an aggregate penalty in sentencing for multiple offences (Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59 at 62 to 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.
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]; Gittany at [199] and [201]; R v Harris [2007] NSWCCA 130; (2007) 171 A Crim R 267 at [46]; and R v Wheeler [2000] NSWCCA 34 at [36]-[37]). 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 discount for multiple offending" (R v MAK; R v MSK [2006] NSWCCA 381; (2006) 167 A Crim R 159 at [18]).
The tree protection offence was of a different character than the tree removal offence insofar as each offence resulted from contraventions of different conditions of consent. However, both offences involved breaches of s 4.2(1)(b) of the EPAA and were related to the same course of conduct, that is, the removal of trees for the purpose of Grand Epping's subdivision and development of the land.
On this basis, I consider that the offences are sufficiently similar and co-incident to justify the application of the totality principle (Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610 at [40]).

[54]

Appropriate Sentence

Having regard to the objective seriousness of the commission of the offences and the mitigating subjective factors in favour of Grand Epping, together with the penalties imposed in the relevant comparable cases, I find that the imposition of a monetary penalty is warranted for each offence as follows: 1. in the tree removal offence a fine of $120,000; and 2. in the tree protection offence a fine of $25,000.
Each penalty must be discounted by 25% for the utilitarian value of Grand Epping's plea of guilty as follows: 1. in the tree removal offence a fine of $90,000; and 2. in the tree protection offence a fine of $18,750.
After the application of the totality principle, the penalty for the commission of the tree protection offence should be further reduced to $10,000.
The total monetary penalty imposed on Grand Epping for the commission of the two offences is therefore $100,000.

[55]

Orders

In conformity with the reasons given above, the Court makes the following orders: Proceeding 275130/2020 1. Grand Epping is convicted as charged; 2. Grand Epping is fined the sum of $90,000; 3. Pursuant to s 9.56(3) of the Environmental Planning and Assessment Act 1979 Grand Epping is to undertake the planting identified at annexure "A" within three (3) months of the date of these orders; Proceeding 275131/2020 1. Grand Epping is convicted as charged; 2. Grand Epping is fined the sum of $10,000; Proceedings 275130/2020, 275131/2020 1. pursuant to s 257B of the Criminal Procedure Act 1986 Grand Epping is to pay the Council's costs of the proceedings fixed in the sum of $50,000 under s 257G of that Act, within 28 days of the publication of these reasons; and 2. the exhibits are to be returned. Annexure A 1. Pursuant to s 9.56(3) of the Environmental Planning and Assessment Act 1979, Grand Epping Pty Ltd is to: 1. plant one advanced size nursery Eucalyptus saligna within a minimum container size of 100 L in the location shown on annexure B; 2. plant one advanced size nursery Syncarpia glomulifera within a minimum container size of 100 L in the location shown on annexure B; 3. plant two Pittosporum undulatum tube stock seedlings in each of the locations shown on annexure B; and 4. plant two Allocasuarina torulosa tube stock seedlings in each of the locations shown on annexure B. 1. The replacement plantings identified in paragraph 1 above are to be nurtured to maturity and must be in a healthy condition.

[56]

Amendments 15 July 2021 - By consent pursuant to r 36.16(3A) of the Uniform Civil Procedure Rules 2005, order 3 at [181(3)] of the judgment ([2021] NSWLEC 70) is varied to include the words "within three (3) months of the date of these orders" at the end of that order. 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: 15 July 2021

City of Parramatta Council v Grand Epping Pty Ltd

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