Geetha Rajagopalan v Penrith City Council [2026] NSWLEC 44

Category: Principal judgment

Parties: Geetha Rajagopalan (Appellant)
Penrith City Council (Respondent)

Representation: Counsel:
Self-represented litigant (Appellant)
S Erian (Respondent)
Solicitors:
Self-represented litigant (Appellant)
Penrith City Council Legal Team (Respondent)

File Number(s): 2025/00425299

Publication restriction: Nil

JUDGMENT

Introduction

1. These Class 6 proceedings are an appeal under s 31 of the Crimes (Appeal and Review*)* Act 2001 (NSW) (CAR Act) from a decision of the Local Court at Mount Druitt, commenced by way of summons filed by Ms Geetha Rajagopalan (Ms Rajagopalan) on 4 November 2025. Pursuant to s 21A of the Land and Environment Court Act 1979 (NSW), the Court has jurisdiction to hear and dispose of appeals under, inter alia, s 31 of the CAR Act.

2. On 16 October 2025, in the Local Court at Mount Druitt, the appellant was found guilty of an offence against s 9.37(1) of the Environment Planning and Assessment Act 1979 (NSW) (EPA Act) for failing to comply with the terms of a development control order. Judge Gibson found the appellant guilty of an offence against s 9.37(1) and sentenced her to pay a fine of $1,600 and professional costs in the sum of $1,400 pursuant to s 215 of the Criminal Procedure Act 1986 (NSW) (CPA).

3. The appellant has appealed against both conviction and sentence, and seeks that the judgment and penalty imposed by the Local Court on 16 October 2025 be set aside, and that “the matter be dismissed or the penalty be reduced appropriately in accordance with the appellant’s evidence and the interests of justice.”

Background

4. At all material times, the appellant Ms Rajagopalan was the registered proprietor of 121-123 The Northern Road, Londonderry NSW 2753 (the property). The property is zoned RU4 – Primary Production Small Lots under the Penrith Local Environmental Plan 2010 (the Penrith LEP).

5. A watercourse runs through the property (the watercourse). The property is designated a flood control lot, and hence is subject to specific controls in relation to building design, floor levels and safe access to manage risk during flood events. A flood control lot is defined in s 1.5 of the State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 (NSW) (SEPP Exempt and Complying Development) as “a lot to which flood related development controls apply in respect of development for the purposes of industrial buildings, commercial premises, dwelling houses, dual occupancies, multi dwelling housing or residential flat buildings (other than development for the purposes of group homes or seniors housing)”.

6. On 19 May 2021, Penrith City Council (Council, the respondent) officers Bradley Kenny and Michael Bul conducted an inspection of the property after receiving complaints about trucks entering the property and dumping unknown material. During the inspection, the Council officers observed trucks depositing soil-like material and a bobcat spreading the imported material around the property.

7. On 11 October 2021, Council gave Development Control Order 10 (DCO 10) to the appellant pursuant to Division 9.3 of the EPA Act. DCO 10 directed the appellant to:

(a) cease importing unauthorised fill material to the property and conducting further earthworks immediately; (b) install and/or maintain sediment and erosion controls around the areas affected by the importation of unauthorised fill material and earthworks, to prevent run-off onto the neighbouring property and registered watercourses; (c) engage an appropriately qualified person to prepare a restoration plan for the areas affected by the importation of unlawful fill material and earthworks, to restore the property to pre-unauthorised earthwork contours and levels, and to restabilise the soil at the property; and (d) after receiving approval from Council, carry out remediation works in accordance with the approved restoration plan.

8. On 9 December 2021, Council officer Bradley Kenny conducted an inspection of the property. During the inspection, Mr Kenny observed that a timber retaining wall had been constructed at the property (the timber retaining wall). The appellant did not seek and had not obtained development consent to construct or install the retaining wall.

9. On 23 April 2023, Council gave to the appellant a Notice of Intention to Serve Development Control Order 3 pursuant to Division 9.3 of the EPA Act. The Notice of Intention contained the terms of the proposed order directing the appellant to remove the timber retaining wall.

10. On 13 February 2024, Council officers Bradley Kenny and Michael Bul conducted an inspection of the property from a neighbouring property. During the inspection, Mr Kenny and Mr Bul observed that the timber retaining wall was still in place at the property.

11. On 14 February 2024, Council gave to the appellant Development Control Order 3 pursuant to ss 9.34 and 9.35 of the EPA Act (DCO 3). DCO 3 required the appellant to remove the timber retaining wall by 15 March 2024. The reasons for the order included that the subject retaining wall was not exempt development because the premises is a flood control lot within the meaning of the SEPP Exempt and Complying Development, and development consent was not obtained for the construction of the wall.

12. On 6 March 2024, the appellant sent an email to Council requesting an extension of time to “deal with” DCO 3. In the email, the appellant stated that she had “contacted a few contractors” but they were busy, and she needed until May 2024 to “address this issue”.

13. On 5 April 2024, Council officer Greg McCarthy sent a letter to the appellant informing her that Council had extended the time for compliance with DCO 3 to 31 May 2024.

14. On 27 June 2024, Council officer Bradley Kenny conducted an inspection of the property from a neighbouring property. During the inspection, Mr Kenny observed that the timber retaining wall remained in place and had not been removed as required by DCO 3.

15. On 27 November 2024, Mr Kenny sent a letter to the appellant advising that it was considering issuing a penalty notice in relation to the failure to comply with DCO 3, and providing the appellant with an opportunity to provide reasons as to why a formal caution should be issued instead.

16. On 10 December 2024, the appellant sent a letter to Council officer Andrew Moore providing reasons in relation to why the “timber sediment control be allowed to remain” and why the “notice for proposed fine/caution may be withdrawn”.

17. On 29 January 2025, Council issued a penalty infringement notice to the appellant for the offence of failure to comply with a development control order against s 9.37(1) of the EPA Act in the sum of $3,000 (the p****enalty n****otice).

18. On 4 February 2025, the appellant elected to have the penalty notice determined by the Local Court. Subsequently, on 13 February 2025, Council filed a Court Attendance Notice in the Local Court.

19. On 31 March 2025, the matter was listed for first mention at Mount Druitt Local Court. On that occasion, the appellant entered a plea of not guilty to the offence.

20. On 18 September and 16 October 2025, the matter was heard before Judge Gibson at Mount Druitt Local Court.

The Local Court proceedings

21. In the proceedings before Judge Gibson in the Local Court at Mount Druitt, the appellant was convicted of the offence of failing to comply with the terms of a development control order, sentenced to pay a fine of $1,600, and ordered to pay Council’s professional costs in the amount of $1,400. In his Honour’s judgment, Judge Gibson held as follows:

22. a prosecution under s 9.37 of the EPA Act requires Council to prove that a defendant to whom a development control order is given or is taken to have been given must comply with the terms of the order;

23. Council must satisfy the Court that the development control order was validly given;

24. there is a defence under 9.37(2) where, on balance, a defendant can satisfy the Court they are unaware of the fact that the matter in relation to which the offence arose was the subject of an order, but that defence was not relied on here;

25. it was not in dispute that a development control order was given and that it related to a structure on the property of Ms Rajagopalan;

26. in relation to the narrow issue in dispute, Ms Rajagopalan said that under s 9.57(5) proceedings for an offence against the Act may be commenced no later than two years after the offence was alleged to have been committed, and that Council was aware of the construction of the fence in around October 2021 and no development control order was given until February 2024, hence the prosecution was out of time;

27. when Council inspector Mr Kenny was on the property on 9 December 2021 and observed what he recorded as a retaining wall, Ms Rajagopalan says that he saw the wall and said that “it was effectively a good sediment control barrier, or words to that effect”, and she took his lack of objection as encouragement to continue with the construction that had already begun;

28. Mr Kenny, in his evidence, said that this was not the case, and Council submitted that Mr Kenny would not have had the delegation to grant an approval, and that there was no dispute that the specific approval process with Council did not take place;

29. Council’s position was that there was never any development approval for the erection of the fence, and on 20 April 2023 after it was determined that the fence was still in place, a notice of intention to serve a development control order was given to Ms Rajagopalan;

30. there was no dispute that Ms Rajagopalan received the development control order, and that she in fact engaged with Council and was given an extension of time for compliance;

31. subsequently, when an inspection over the boundary fence was undertaken, Mr Kenny, not going onto Ms Rajagopalan’s property, observed that the fence was still there, and it was at that point in June 2024, beyond the time fixed for compliance, that Council says the offence was committed and the penalty notice proceedings were commenced and a court attendance notice was filed;

32. in her submissions in relation to the development control order falling outside two years, Ms Rajagopalan relied on s 9.57(6) of the EPA Act which provided that “[a] development control order may not be given more than two years after the date on which the non-compliance or unauthorised development first came to the notice of the Council”, however, that provision was repealed as at 1 March 2018;

33. the offence with which Ms Rajagopalan was charged related to her failure to comply with the development control order which was given in February 2024, and by the time the proceedings against her were commenced (on 4 November 2025), two years had not elapsed so that the prosecution was not out of time and the limitation period in s 9.57 did not apply;

34. Council officer Mr Kenny testified to facts that were clearly borne out in the documentary evidence;

35. satisfied beyond reasonable doubt of each of the elements of the offence, and that Ms Rajagopalan knew about the development control order and chose not to comply with the terms of the order that required demolition, she was guilty of the offence of failing to comply with the terms of the development control order; and

36. there being no discount for contrition or remorse, Ms Rajagopalan was fined $1,600 (the maximum penalty being $110,000), and ordered to pay Council’s costs in the sum of $1,400.

Relevant legislation

22. Section 9.34 of the EPA Act sets out the types of development control orders that may be given under that Act. It relevantly provides:

9.34 Orders that may be given (cf previous s 121B)

(1) The development control orders that may be given under this Act are as follows—

(a) general orders in accordance with the table to Part 1 of Schedule 5,

…

(3) A reference in the tables to a planning approval is a reference to the following—

(a) a development consent,

…

23. Part 1 of Schedule 5 to the EPA Act lists the general orders that may be given, the circumstances in which those orders may be given, and the persons to whom they may be given. In respect of demolish works orders, it relevantly provides:

24. Section 9.37 of the EPA Act provides as follows in relation to the offence of a failure to comply with a development control order:

9.37 Failure to comply with order—offence

(cf previous s 125)

(1) A person to whom a development control order is given or is taken to have been given must comply with the terms of the order.

(2) It is a sufficient defence to a prosecution for an offence against this section if the defendant satisfies the court that the defendant was unaware of the fact that the matter in respect of which the offence arose was the subject of an order.

Maximum penalty—Tier 1 monetary penalty.

25. Sections 3(3) and 3(3A) of the CAR Act provide as follows in relation to the power conferred on an appeal court to vary a sentence:

3 Definitions

…

(3) In this Act, a reference to varying a sentence includes—

(a) a reference to varying the severity of the sentence, and

(b) a reference to setting aside the sentence and imposing some other sentence of a more or less severe nature, and

(c) a reference to varying or revoking a condition of, or imposing a new condition on, an intensive correction order, community correction order or conditional release order.

(3A) Without limiting subsection (3), a power conferred on an appeal court under this Act to vary a sentence includes the power to make an order under section 10 of the Crimes (Sentencing Procedure) Act 1999 and, for that purpose, to set aside a conviction made by the original Local Court (without setting aside the finding of guilt on which the conviction is based) to enable the order to be made.

26. In Part 4 “Appeals From Local Court to the Land and Environment Court”, Division 1 “Appeals by defendants”, Subdivision 1 “Making of appeals”, s 31 of the CAR Act provides as follows in relation to appeals as of right from persons who have been convicted or sentenced by the Local Court to the Land and Environment Court:

31 Appeals as of right

(1) Any person who has been convicted or sentenced by the Local Court with respect to an environmental offence may appeal to the Land and Environment Court against the conviction or sentence.

(1A) Subsection (1) does not apply in respect of a conviction if the person was convicted in the person’s absence or following the person’s plea of guilty.

(2) An appeal must be made—

(a) within 28 days after sentence is imposed, or

(b) if an application for annulment of the conviction or sentence has been made under Part 2 within that 28-day period, within 28 days after the Part 2 application is disposed of under that Part,

but (in the case of an appeal against conviction) may not be made before sentence is imposed.

27. In Subdivision 2 “Determination of appeals”, s 37 provides that appeals against conviction are to be by way of rehearing on the evidence given in the Local Court proceedings:

37 Appeals to be by way of rehearing on the evidence

(1) An appeal against conviction is to be by way of rehearing on the basis of evidence given in the original Local Court proceedings, except as provided by section 38.

(2) Fresh evidence may be given, but only by leave of the Land and Environment Court which may be granted only if the Court is satisfied that it is in the interests of justice that the fresh evidence be given.

(3) The parties to an appeal are each entitled to be provided with one free copy of the transcripts of evidence relevant to the appeal and, if fresh evidence is given, one free copy of the transcript of the fresh evidence.

28. Section 3 defines “fresh evidence”, in relation to appeal proceedings, as “evidence in addition to or in substitution for the evidence given in the proceedings, from which the appeal proceedings have arisen”.

29. Section 39 relevantly provides in relation to the determination of appeals by the Land and Environment Court of appeals against conviction and sentence:

39 Determination of appeals

(1) The Land and Environment Court may determine an appeal against conviction—

(a) by setting aside the conviction, or

(b) by dismissing the appeal, or

(c) in the case of an appeal made with leave under section 32 (1)—by setting aside the conviction and remitting the matter to the original Local Court for redetermination in accordance with any directions of the Land and Environment Court.

(2) The Land and Environment Court may determine an appeal against sentence—

(a) by setting aside the sentence, or

(b) by varying the sentence, or

(c) by dismissing the appeal.

…

30. In Division 3 “Miscellaneous”, s 49 provides in relation to costs:

49 Miscellaneous powers

…

(4) Subject to section 70, the Land and Environment Court may make such order as to the costs to be paid by either party (including the Crown) as it thinks just.

31. In Part 6 “Provisions common to all appeals”, s 71 provides that an appeal court may not make an order or impose a sentence that could not have been imposed by the Local Court:

71 Variation of sentences of Local Court

(1) An appeal court may not vary a sentence so that the sentence as varied could not have been imposed by the Local Court.

(2) An appeal court may not make an order or impose a sentence that could not have been made or imposed by the Local Court.

(3) Any sentence varied or imposed by an appeal court, and any order made by an appeal court under this Act, has the same effect and may be enforced in the same manner as if it were made by the Local Court.

32. Section 72 provides in relation to orders for costs that may be made by an appeal court against an appellant or respondent:

72 Orders for costs

An appeal court that orders an appellant or respondent to pay costs—

(a) (Repealed)

(b) must state a time within which the costs or other amount must be paid.

33. Section 3A of the Crimes (Sentencing Procedure) Act 1999 NSW) (CSP Act) sets out the purposes for which a court may impose a sentence:

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.

34. Where a court is disposed to proceed to sentence with a finding that a person is guilty of an offence, but without proceeding to conviction, or alternatively with a finding that a person is guilty of an offence, but instead of imposing a sentence of imprisonment or a fine, ss 9 and 10 of the CSP Act provide as follows (emphasis added):

9 Conditional release orders

(1) Instead of imposing a sentence of imprisonment or a fine (or both) on an offender, a court that finds a person guilty of an offence may make a conditional release order discharging the offender, if—

(a) the court proceeds to conviction, or

(b) the court does not proceed to conviction but makes an order under section 10 (1) (b).

(2) In deciding whether to make a conditional release order with a conviction, the sentencing court is to have regard to the following factors—

(a) the person’s character, antecedents, age, health and mental condition,

(b) whether the offence is of a trivial nature,

(c) the extenuating circumstances in which the offence was committed,

(d) any other matter that the court thinks proper to consider.

Note—

These factors are considered under section 10 in respect of an order under section 10 (1) (b) in connection with a conditional release order without a conviction.

(3) To avoid doubt and without limitation—

(a) a fine and a conditional release order cannot be imposed in relation to the offender in respect of the same offence, and

(b) a conditional release order with a conviction may be made as an alternative to imposing a fine.

(4) This section is subject to the provisions of Part 8.

10 Dismissal of charges and conditional discharge of offender

(1) Without proceeding to conviction, a court that finds a person guilty of an offence may make any one of the following orders—

…

(b) an order discharging the person under a conditional release order (in which case the court proceeds to make a conditional release order under section 9),

…

(3) In deciding whether to make an order referred to in subsection (1), the court is to have regard to the following factors—

(a) the person’s character, antecedents, age, health and mental condition,

(b) the trivial nature of the offence,

(c) the extenuating circumstances in which the offence was committed,

(d) any other matter that the court thinks proper to consider.

…

35. Section 21A of the CSP Act identifies aggravating, mitigating and other factors to be taken into account by the court in determining the appropriate sentence for an offence. These include relevantly the following:

21A Aggravating, mitigating and other factors in sentencing

(1) General In determining the appropriate sentence for an offence, the court is to take into account the following matters-

(a) the aggravating factors referred to in subsection (2) that are relevant and known to the court,

(b) the mitigating factors referred to in subsection (3) that are relevant and known to the court,

(c) any other objective or subjective factor that affects the relative seriousness of the offence.

The matters referred to in this subsection are in addition to any other matters that are required or permitted to be taken into account by the court under any Act or rule of law.

(2) Aggravating factors The aggravating factors to be taken into account in determining the appropriate sentence for an offence are as follows—

…

(g) the injury, emotional harm, loss or damage caused by the offence was substantial,

…

(i) the offence was committed without regard for public safety,

…

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,

(b) the offender was not part of a planned or organised criminal activity,

…

(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), …

36. Section 215(1) of the CPA relevantly provides in relation to professional costs awarded to a prosecutor:

215 When professional costs may be awarded to prosecutor

(1) A court may at the end of summary proceedings order that the accused person pay the following costs to the registrar of the court, for payment to the prosecutor, if the accused person is convicted or an order is made against the accused person—

(a) such professional costs as the court considers just and reasonable,

…

Legal principles

37. On appeal, Council continues to bear the onus of proving the charge against the appellant beyond reasonable doubt: Gianoutsos v Glykis [1] at [42]. No error in the findings of the primary judge needs to be found: see Vince Sunter v District Court of NSW [2] at [24]-[25] (Allsop P).

38. The nature of an appeal “by way of rehearing” was considered in Charara v The Queen [3] at [19]-[20], where Mason P (Kirby and Hoeben JJ agreeing) said in relation to an appeal from the Local Court to the District Court:

The nature of an appeal “by way of rehearing” has been discussed in many cases. The procedure to be adopted, powers to be exercised and function to be performed must first be sought in the language of the particular statute. One thing, however, is clear. “The ‘rehearing’ does not involve a completely fresh hearing by the appellate court of all the evidence. That court proceeds on the basis of the record and any fresh evidence that, exceptionally, it admits” (Fox at 118 [22] per Gleeson CJ, Gummow and Kirby JJ)…

In Da Costa v Cockburn Salvage and Trading Pty Ltd (1970) 124 CLR 192 at 208-9 Windeyer J described the difference between an appeal by way of rehearing on the one hand and a retrial or hearing de novo on the other in the following terms:

The rule … provides that all appeals shall be ‘by way of rehearing’. This does not mean that the appeal is a complete rehearing as a new trial is. It means that the case is to be determined by the Full Court, its members considering for themselves the issues the trial judge had to determine and the effect of the evidence he heard as appearing on the record of the proceedings before him, but applying the law as it is when the appeal is heard not as it was when the trial occurred….[A power to draw inferences of fact and to give any judgment that ought to have been given] does not … curtail the recognition or respect that an appeal should accord to the decision of a trial judge.

39. In Marano v Tweed Shire Council, [4] Pain J said at [15] in relation to a Class 6 appeal against sentence as follows:

The Appellant does not need to identify any particular error in the sentencing discretion of the Local Court. The Court will re-exercise the sentencing discretion afresh as the means to hear and dispose of the appeal*:* Heatscape Pty Ltd v Mahoney [2015] NSWLEC 126 (Heatscape) at [18] per Pepper J; Terry v Department of Environment, Climate Change and Water [2011] NSWLEC 141 at [51] per Pepper J. In doing so, the Court may take into account additional evidence brought before it: Heatscape at [18].

Evidence and submissions

40. The evidence before me consisted of an appeal book which included the Court Attendance Notice dated 13 February 2025, the record of the decision made by Judge Gibson dated 16 October 2025, the Notice of Penalty dated 16 October 2025, transcripts of the hearings in the Local Court on 19 June 2025, 18 September 2025 and 16 December 2025, and the exhibits in the Local Court proceedings.

41. In addition, Ms Rajagopalan sought to rely on a statement provided by Mr Bradley Kenny, senior development compliance officer at Council, dated 13 June 2025, setting out the details of DCO 3 given to Ms Rajagopalan on 14 February 2024, the Notice of Intention to serve DCO 3 given to Ms Rajagopalan on 20 April 2023, Ms Rajagopalan’s request for an extension of time until May 2024 to seek contractors to undertake the works outlined in DCO 3, Mr Kenny’s inspection of the property on 27 June 2024, his file notes and photographs taken at the time of that inspection, and the show cause letter issued to Ms Rajagopalan on 27 November 2024. I received the statement as fresh evidence on the appeal, although most if not all of the attachments were exhibits in the Local Court proceedings.

42. In addition, Ms Rajagopalan sought to rely on an “Evidence Bundle” filed on 13 January 2026 which consisted of in excess of 250 pages of documents behind 31 dividers. She did not formally seek leave to rely on this material pursuant to s 37(1) of the CAR Act. The “Evidence Bundle” consisted of a mélange of material, much of which was before the Local Court and already contained in the appeal book, documents which were marked for identification in the Local Court proceedings, some of which were in the appeal book, as well as documents which were not before the Local Court at all. In relation to the documents not already in the appeal book, the respondent objected to each document except the following: a cover letter from Bradley Kenny to Ms Rajagopalan and Development Control Order 10 dated 11 October 2021; a letter from Bradley Kenny to Ms Rajagopalan dated 29 March 2022; an email from Bradley Kenny to Jessie Soster dated 18 December 2024; and a letter from Bradley Kenny to Ms Rajagopalan dated 29 January 2025. The other documents were objected to on various grounds: some were submitted to be not relevant to the issues in dispute; the provenance of some was uncertain; some were incomplete, redacted, and in some cases illegible; and some were in the nature of submissions. I have determined to uphold the respondent’s objections to the documents which were not in the appeal book, and admitted into evidence the cover letter and DCO 10 dated 11 October 2021, the letter of 29 March 2022, the email of 18 December 2024 and the letter of 29 January 2025.

43. Ms Rajagopalan also filed lengthy written submissions dated 9 March 2026 and submissions in reply dated 28 March 2026. Council filed submissions dated 25 March 2026. On 2 April 2026, my chambers requested each party to provide short submissions in relation to costs. On 7 April 2026, Ms Rajagopalan provided submissions in relation to costs. On 9 April 2026, Council provided submissions in relation to costs.

Appeal against conviction

Were the proceedings against Ms Rajagopalan statute barred?

44. On the appeal against conviction, the first issue is whether the proceedings against Ms Rajagopalan were statute barred.

45. Ms Rajagopalan contended that the proceedings against her were statute barred by reason of s 9.57(5A)(b) of the EPA Act which provides in relation to proceedings for an offence instituted by a council that proceedings may also be commenced within, but no later than, 2 years after the date on which evidence of the alleged offence first came to the attention of “any investigation officer who is a member of the staff of that council.”

46. However, s 9.57(5A)(b) must be read together with s 9.57(5) which provides that:

Proceedings for an offence against this Act or the regulations may be commenced not later than 2 years after the offence was alleged to be committed.

47. In this case, the offence with which Ms Rajagopalan was charged was her failure to comply with DCO 3 by failing to remove the timber retaining wall at the property by 31 May 2024. The first occasion that a Council officer became aware that the timber retaining wall had not been removed in accordance with DCO 3 was during an inspection of the property on 27 June 2024, approximately 4 weeks after the date for compliance with the DCO. On 29 January 2025, Council issued the penalty notice to the appellant, and several days later on 4 February 2025 Ms Rajagopalan elected to have the penalty notice determined by the Local Court.

48. On 13 February 2025, approximately 10 months after the date that evidence of the alleged offence first came to the attention of Council staff, Council filed a court attendance notice commencing proceedings in the Local Court. Accordingly, proceedings against the appellant were commenced well within the statutory time limit.

Was an offence against s 9.37 of the EPA Act proven beyond reasonable doubt?

Was a valid development control order given to the appellant?

49. On Ms Rajagopalan’s appeal against conviction, the second issue is whether an offence against s 9.37 was proven beyond reasonable doubt. The first sub-issue in relation to that issue is whether a valid development control order was given to the appellant.

50. At all material times, the property was zoned RU4 – Primary Production Small Lots under the Penrith LEP. The Penrith LEP provided that the development of “dwelling houses” on land zoned RU4 is only permitted with development consent. The Dictionary to the Penrith LEP defines “dwelling house” as “a building containing only one dwelling”.

51. Section 1.4 of the EPA Act broadly defines “building” as follows:

building includes part of a building, and also includes any structure or part of a structure (including any temporary structure or part of a temporary structure), but does not include a manufactured home, moveable dwelling or associated structure within the meaning of the Local Government Act 1993.

52. I find that at all material times, the timber retaining wall on the appellant’s property was a “structure or part of a structure” that was ancillary to the dwelling house located at the property.

53. Section 4.2(1) of the EPA Act provides that if an environmental planning instrument provides that specified development may not be carried out except with development consent, a person must not carry out the development on the land unless development consent has been obtained and is in force, and the development is carried out in accordance with the consent. Section 1.5(1) of the EPA Act relevantly defines “development” as follows:

1.5 Meaning of “development” (cf previous s 4)

(1) For the purposes of this Act, development is any of the following—

…

(c) the erection of a building,

(d) the carrying out of a work,

…

(f) any other act, matter or thing that may be controlled by an environmental planning instrument.

54. Section 2.29 of the SEPP Exempt and Complying Development provides that the construction or installation of a retaining wall or other form of structural support may be considered exempt development “if it is not carried out, constructed or installed on … a flood control lot”.

55. At all material times, the property was designated as a flood control lot. It follows that the timber retaining wall could not be considered exempt development under the SEPP, and that the appellant was required to obtain development consent for its construction or installation at the property. The appellant admitted during cross examination in the Local Court proceedings and accepted in the hearing before me that she did not obtain development consent to construct or install the timber retaining wall.

56. Before giving DCO 3 to the appellant on 20 April 2023, Council gave the appellant a notice of intention to serve a development control order in accordance with cl 8 of Part 1, Schedule 5 to the EPA Act, proposing an order requiring the removal of the timber retaining wall.

57. During an inspection on 13 February 2024, Council officers Bradley Kenny and Michael Bul observed the timber retaining wall was still in place at the property. Following that inspection, Council gave DCO 3 directing the appellant to remove the timber retaining wall.

58. The appellant also made submissions in relation to what she contended was the duplicate nature of the development control orders because the timber retaining wall “formed part of the stabilisation response known to Council since 2021” in accordance with DCO 10 given in response to the unauthorised importing of fill material. It is true that Ms Rajagopalan has been the subject of various regulatory action relating to unauthorised works carried out at the property. In response to those unauthorised works, Council gave several development control orders to the appellant directing her to remediate the property. However, the only development control order given to her in relation to the timber retaining wall and the subject of the proceedings in the Local Court was DCO 3.

59. I do not accept the appellant’s submission that the timber retaining wall was constructed in accordance with DCO 10. That development control order directed her to take measures to remediate the property following the unauthorised importation of large volumes of fill material. One of those measures included the installation of sediment and erosion controls to temporarily hold the unauthorised fill material until it was removed in compliance with the terms of the order. The construction of a timber retaining wall cannot be characterised as sediment and erosion control for the purposes of compliance with DCO 10. As submitted by the respondent, sediment and erosion controls are temporary measures that are implemented to prevent sediment from running off site, usually construction sites, and entering stormwater drains and waterways. Such controls may include the use of silt fences, geotextile sandbags, or catch drains. By contrast, the timber retaining wall was a permanent structure installed for the purpose of stabilising the unauthorised fill material imported onto the property. The appellant herself described the construction and installation of the timber retaining wall as part of “flood mitigation works” and “stabilisation works”. In these circumstances, I am not satisfied that the timber retaining wall can be characterised as a sediment or erosion control measure installed in accordance with DCO 10.

60. Accordingly, I find that a valid development control order, namely DCO 3, was given to the appellant on 14 February 2024.

Did the appellant fail to comply with the development control order by the date for compliance?

61. The second sub-issue in relation to whether an offence against s 9.37 was proven beyond a reasonable doubt is whether the appellant failed to comply with the development control order by the date for compliance. The initial time for compliance with DCO 3 was 15 March 2024. This date was subsequently extended to 31 May 2024 at the request of the appellant.

62. The first occasion that Council officers inspected the property after the extended date for compliance with DCO 3 was 27 June 2024. On that occasion, Council officer Bradley Kenny observed the timber retaining wall was still in place.

63. The appellant admitted during cross-examination in the Local Court proceedings that, as of 27 June 2024, the timber retaining wall was still in place at the property.

64. Accordingly, I find that the appellant failed to comply with DCO 3 by the date for compliance.

Conclusion in relation to the appeal against conviction

65. Based on the evidence in the Local Court proceedings, and the additional material which I determined to admit in the proceedings before me, I am satisfied that the elements of an offence against s 9.37 of the EPA Act are proven beyond reasonable doubt. Accordingly, I dismiss the appellant’s appeal against conviction.

Appeal against sentence

66. Having determined to dismiss the appeal against conviction, I turn to consider Ms Rajagopalan’s appeal against sentence.

Onus and standard of proof at sentencing

67. In relation to the onus and standard of proof at sentencing, in R v Olbrich [5] Gleeson CJ, Gaudron, Hayne and Callinan JJ adopted (at [27]) what was said by the majority in R v Storey [6] at 369:

the judge may not take facts into account in a way that is adverse to the interests of the accused unless those facts have been established beyond reasonable doubt. On the other hand, if there are circumstances which the judge proposes to take into account in favour of the accused, it is enough if those circumstances are proved on the balance of probabilities.

Objective seriousness

68. In Muldrock v The Queen, [7] French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ said at [27] in relation to the assessment of the objective seriousness of an offence:

The objective seriousness of an offence is to be assessed without reference to matters personal to a particular offender or class of offenders. It is to be determined wholly by reference to the nature of the offending.

69. In Plath v Rawson, [8] Preston CJ of LEC identified the following circumstances to which the Court may have regard in determining the objective seriousness of environmental offences (at [48]):

(a) the nature of the offences;

(b) the maximum penalties for the offences;

(c) the harm caused to the environment by commission of the offences;

(d) the state of mind of the offender in committing the offences;

(e) the offender's reasons for committing the offences;

(f) the foreseeable risk of harm to the environment by commission of the offences;

(g) the practical measures to avoid harm to the environment; and

(h) the offender's control over the causes of harm to the environment.

70. The respondent Council submitted that if the appellant is found guilty of an offence against s 9.37(1) of the EPA Act, the factors relevant to determining the objective seriousness of the offending conduct in this case include the nature and circumstances of the offence, the maximum penalty for the offence, the appellant’s state of mind in committing the offence, the environmental harm caused by the offending conduct, and the appellant’s control over the causes of the offence. I consider each of those factors in turn.

Nature of the offending

71. The nature and purpose of the statutory provision that has been contravened, and its place in the statutory scheme, are relevant to the assessment of the objective seriousness of an offence against that provision: Kingfisher Properties Pty Limited v Northern Beaches Council [9] (Kingfisher Properties) at [35] (Preston CJ of LEC). I accept, as submitted by Council, that development control orders are a means by which compliance with the EPA Act can be enforced. A development control order to demolish or remove a building enforces compliance with the provisions of the EPA Act requiring prior approval before constructing a building: Kingfisher Properties at [35] (Preston CJ of LEC).

72. In the present case, prior approval in the form of a development consent was required to construct the timber retaining wall at the property. The development was not exempt development because the property is a flood control lot. The appellant did not obtain development consent for the construction of the retaining wall. A reinspection of the premises by Council officer Bradley Kenny on 23 March 2023 established that the retaining wall was still present. This provided Council with the power under s 9.34(1)(a) and item 3 of the table to Part 1 of Schedule 5 of the EPA Act to give a development control order requiring removal of the unlawfully constructed timber retaining wall from the premises.

73. I find that by her failure to comply with the terms of DCO 3, the appellant undermined the purpose of s 9.34(1) of the EPA Act in relation to the giving of development control orders to enforce compliance with the provisions of the Act requiring prior approval before constructing a building.

Maximum penalty for the offence

74. Section 9.37 of the EPA Act specifies a Tier 1 monetary penalty as the maximum monetary penalty for an offence of failing to comply with a development control order. However, a Tier 1 monetary penalty is only applicable if the conditions set out in s 9.52(2) of the EPA Act are established to the criminal standard of proof. Council did not allege facts and circumstances that would have exposed the appellant to a Tier 1 monetary penalty. Instead, the maximum penalty to which the appellant is exposed is the maximum penalty for a Tier 2 offence.

75. At the time of the offending, the maximum penalty for a Tier 2 offence was, in the case of an individual, $500,000, and for a continuing offence, $5,000 for each day the offence continues: s 9.53(1)(b) of the EPA Act. The jurisdictional limit of the Local Court was $110,000 for each offence: s 9.57(3) of the EPA Act. That jurisdictional limit does not apply in the Land and Environment Court. However, in accordance with s 71(1) of the CAR Act, an appeal court may not vary a sentence so that the sentence as varied could not have been imposed by the Local Court.

76. The maximum penalty, and not the Court’s jurisdictional limit, reflects Parliament’s view of the seriousness of the offence and sets a yardstick against which the offence committed by the appellant can be compared: Pesic v Sutherland Shire Council [10] at [24] (Preston CJ of LEC). In Markarian v The Queen [11] (Markarian), Gleeson CJ, Gummow, Hayne and Callinan JJ said at [31]:

[C]areful attention to maximum penalties will almost always be required, first because the legislature has legislated for them; secondly, because they invite comparison between the worst possible case and the case before the court at the time; and thirdly, because in that regard they do provide, taken and balanced with all of the other relevant factors, a yardstick.

77. In R v Campbell, [12] Simpson J (Hall J agreeing) said at [28] that the maximum sentence for an offence is a “legislative guide post” used to “measure the relevant features of a particular instance of a crime against … a worst case” (citing Markarian at [30]–[31]).

78. In relation to the jurisdictional limit of Local Court, in Khouzame Preston CJ of LEC said at [115]:

Although I take into account the jurisdictional limit of the Local Court for an offence against s 60N of the LLS Act, it does not affect the amount of the fine I have determined is appropriate to impose for the offence committed by Ms Khouzame. That offence is of such objective seriousness as to warrant the imposition of a fine in an amount which exceeds significantly the jurisdictional limit of the Local Court. A fine at the jurisdictional limit of $11,000 would manifestly be disproportionate to the objective seriousness of Ms Khouzame's offending.

79. In Harris v Harrison, [13] Simpson J (Hall J and Schmidt J agreeing) at [93] cited the decision of Grove J (Spigelman CJ and Kirby J agreeing) in R v Doan [14] at [42] for the principle that “the fact that an offence could have been dealt with in a court with a lower jurisdictional limit is an available circumstance to be taken into account; the significance of the circumstance varies from case to case”. Simpson J said at [98] that “the jurisdictional limit of the Local Court ought to have been regarded as a highly significant sentencing factor”.

80. In accordance with s 37 of the Fines Act 1996 (NSW), once a person duly elects to have the matter dealt with by a court, proceedings against the person in respect of the offence may be taken as if the penalty notice had not been issued. In Sutherland Shire Council v Upper Class Developments Pty Ltd, [15] Pain J said at [37]:

It was suggested to the Court that I should not impose significantly greater penalties than would have been payable had the penalty infringement notices not been Court elected as the Defendant chose to do. If I did so, this was said to penalise the Defendant company for choosing to come before the Court so that the matters in dispute could be put to the Court. I find this submission troubling in that this Court's jurisdiction is in no way limited by the fine limitations placed on penalty infringement notices. Section 37 of the Fines Act 1996 provides that, when a penalty infringement notice is Court elected, the legal position is that it is as if the penalty infringement notice had not been issued. Accordingly, I do not think it is appropriate to take into account the fine that was available for the penalty infringement notices issued to the Defendant in the assessment of penalty here.

81. In Bay State Construction Pty Ltd v Woollahra Municipal Council, [16] Preston CJ of LEC said at [62]:

The prescribed penalty for issuing a penalty notice under s 9.58 of the EPA Act, whether for an offence against s 4.3 of the EPA Act (of $6,000 for a corporation) or cl 27A(1) of the State Environmental Planning Policy No 64 - Advertising and Signage (of $3,000 for a corporation) are not yardsticks against which the offences committed by Bay State should be compared. The amount of the penalty that is prescribed for a penalty notice is determined having regard to different considerations to those used to determine the maximum monetary penalty for an offence. The prescribed penalty for a penalty notice that may be issued for an offence is not an indication of the penalty that should be imposed for that offence if the person to whom the penalty notice has been issued elects to have the matter dealt with by the court.

The appellant’s state of mind in committing the offence

82. The offence of failing to comply with the terms of a development control order is one of strict liability. The commission of a strict liability offence intentionally, recklessly or negligently will be objectively more serious than one not so committed: Rae at [42].

83. In this case, the appellant knew the terms of DCO 3, but chose not to remove the timber retaining wall. The appellant’s conduct in not complying with DCO 3 was deliberate, making the commission of the offence intentional.

The harm caused or likely to be caused to the environment by the commission of the offence

84. The extent of harm caused or likely to be caused to the environment by the commission of the offence affects the objective seriousness of the offence.

85. The Dictionary to the Protection of the Environment Operations Act 1997 (NSW) (POEO Act) defines “harm” as follows:

harm to the environment includes any direct or indirect alteration of the environment that has the effect of degrading the environment and, without limiting the generality of the above, includes any act or omission that results in pollution.

86. In environmental offences, “harm” includes both actual harm, as well as the potential or risk of harm and can be direct or indirect, individual or cumulative. In Environment Protection Authority v Waste Recycling and Processing Corporation [17] (EPA v Waste Recycling), Preston CJ of LEC said at [145]-[147] (emphasis added):

145. Harmfulness needs to not only be considered in terms of actual harm, the potential or risk of harm should also be taken into account*:* Axer Pty Ltd v Environmental Protection Authority (1993) 113 LGERA 357 at 366 and Bentley v BGP Properties Pty Ltd (2006) 145 LGERA 234 (6 February 2006) at [175]. Harm should not be limited to measurable harm such as actual harm to human health. It can also include a broader notion of the quality of life.

146. Harm can include harm to the environment and its ecology …

147. Harm can be direct or indirect, individual or cumulative. Activities that contribute incrementally to the gradual deterioration of the environment, even when they cause no discernible direct harm to human interest, should also be treated seriously.

87. In Newcastle City Council v Pace Farm Egg Products Pty Ltd [18] Lloyd J at [44] considered the meaning of harm that is “likely to be caused to the environment” for the purposes of s 241(1)(a) of the POEO Act:

In considering the harm likely to be caused to the environment, it is to be noted that the word “likely” in this context has been held to mean “a real or not remote chance or possibility regardless of whether it is less or more than a fifty per cent chance” (Mathews v Goulburn Wool Processors, NSWSC, Smart J, 6 November 1986, unreported) …

88. In this case, there is no evidence that the appellant’s non-compliance with DCO 3 caused actual harm to the environment. However, during cross-examination in the Local Court proceedings, Council officer Bradley Kenny explained that the environmental impact of the timber retaining wall was unknown because no assessment had been done to evaluate how the retaining wall was affecting the flow of water at the property which is a flood control lot. Further, the structural stability of the retaining wall could not be determined as no engineering reports were obtained prior to its construction. Mr Kenny’s evidence was as follows:

HIS HONOUR

Q. Could I ask this question? Apart from the fact that there was no agreement from council for the erection of the retaining wall, what’s the problem with the retaining wall?

A. Just unknown environmental impacts because, like, an appropriate assessment hasn’t been done because of the flow control lot, because an unknown quantity of - or a large quantity of fill had been brought on. Yeah. Potential, I guess, changes to the natural flow of water in the area. The structural stability of it because it hadn’t been, you know, done with engineering reports or anything like that. But - and - and then, I guess, just the - just the technical breach of the legislation generally as well is probably--

Q. Is there a concern now that if it was removed, the environmental impact would be unknown, given the fill’s allowed to retain it - remain?

A. There’s still - I guess there’s still some concern that there’s - there’s an unknown element of impact.

89. Based on the evidence before the Local Court, I find that the timber retaining wall has the potential to cause harm to the environment, although the extent of that harm has not been determined.

The appellant’s control over the causes that gave rise to the offence

90. The appellant had control over the causes that gave rise to the offence. The timber retaining wall was located on her property, and she chose not to comply with DCO 3 which required its removal.

Conclusions in relation to the objective seriousness of the offence

91. In relation to objective seriousness, Council submitted, and I find, that the offending conduct falls at the low end of the spectrum of objective seriousness. In particular, I find that although the appellant committed the offence intentionally and had control over the cause of the offence, the timber retaining wall has now been in place for several years and there is no evidence capable of establishing that the environmental impact has been other than limited.

Subjective circumstances

92. In relation to the subjective circumstances of the offence, my findings are as follows.

93. The appellant has not expressed any contrition or remorse for the offending conduct within the meaning of s 21A(3)(i) of the CSP Act. To the contrary, she has accepted no responsibility for her actions. She is entitled to no discount for remorse.

94. The appellant has a history of not complying with environmental planning legislation. Throughout 2021, she carried out extensive earthworks at the property for which she had not obtained development consent. This resulted in Council issuing a penalty notice to her on 29 March 2022.

95. In the Local Court proceedings, the appellant said that she worked in aged care. From this, Judge Gibson inferred that she had limited financial means. However, Ms Rajagopalan provided no evidence in the proceedings in the Local Court or in this Court about her financial circumstances or her capacity to pay a monetary penalty.

96. There was no evidence that the harm (if any) caused was substantial or that there was any planned criminality: s 21A(3)(a) and (b) of the CSP Act.

97. There was no evidence in relation to the appellant’s good character within the meaning of s 21A(3)(f) of the CSP Act. Accordingly, I do not give any weight to this factor.

Other sentencing principles

General and specific deterrence

98. Council made no submission in relation to the need for general or specific deterrence. However, in light of Ms Rajagopalan’s generally defiant demeanour in Court and her tendency to blame others, in particular Council officer Bradley Kenny, for her predicament, I find that there is a need for specific deterrence in the circumstances here.

Capacity to pay a fine: s 6 of the Fines Act

99. There was no evidence in relation to the appellant’s capacity to pay a fine. Accordingly, I do not give any weight to this factor.

Order pursuant to s 10(1)(b) of the CSP Act?

100. Having considered the relevant objective and subjective factors, and before proceeding to determine an appropriate penalty, I will consider whether to make an order pursuant to s 10 of the CSP Act. Pursuant to s 10(1)(a), the court may make an order directing that the relevant charge be dismissed. Pursuant to s 10(1)(b), the court may make an order discharging the offender under a conditional release order (in which case the court proceeds to make a conditional release order under s 9).

101. The authorities in relation to the application of s 10 of the CSP Act support the following propositions:

102. The factors to which the Court is to have regard in s 10(3) of the CSP Act do not “preclude the court having regard to any other relevant factors”. [19] Rather, they set out “criteria to be borne in mind” in deciding to make such an order. While “none of these criteria is conclusive, all are to be taken into account”. [20]

103. An order under s 10 can apply to offences that “are not considered trivial in nature”. [21]

104. While an order under s 10 of the CSP Act has been “rare” in the case of environmental offences, the “environmental and planning nature” of an offence is “no bar to the application of s 10”. [22]

105. The application of s 10A to strict liability offences, while not precluded, is limited. [23]

106. In relation to whether this is an appropriate case for the application of s 10(1)(b) of the CSP Act so that without proceeding to conviction I find the defendant to be guilty of an offence, but would make an order discharging the defendant under a conditional release order under s 9, I find as follows having regard to the factors in s 10(3) of the CSP Act:

107. the appellant’s character, antecedents, age, health and mental condition are neutral (s 10(3)(a)) (although there has been no expression of remorse for the offence here);

108. the nature of the offence is not trivial, although I have found it to be at the low end of the spectrum of objective seriousness; and

109. the appellant has not established, on the balance of probabilities, any extenuating circumstances in which the offence was committed.

110. For these reasons, I do not consider it an appropriate exercise of my discretion to make an order under s 10 of the CSP Act that the appellant be discharged under a conditional release order.

Appropriate sentence

104. Having determined that this is not an appropriate case for the application of s 10(1)(b) of the CSP Act, it arises to re-exercise the sentencing discretion afresh.

105. The task of the sentencer is one of “instinctive synthesis”. In Markarian, Gleeson CJ, Gummow, Hayne and Callinan JJ at [37] referred to that task as described by Gaudron, Gummow and Hayne JJ in Wong v The Queen [24] at [75] as follows:

In general, a sentencing court will, after weighing all of the relevant factors, reach a conclusion that a particular penalty is the one that should be imposed. As Gaudron, Gummow and Hayne JJ said in Wong:

"Secondly, and no less importantly, the reasons of the Court of Criminal Appeal suggest a mathematical approach to sentencing in which there are to be 'increment[s]' to, or decrements from, a predetermined range of sentences. That kind of approach, usually referred to as a 'two-stage approach' to sentencing, not only is apt to give rise to error, it is an approach that departs from principle. It should not be adopted.

It departs from principle because it does not take account of the fact that there are many conflicting and contradictory elements which bear upon sentencing an offender. Attributing a particular weight to some factors, while leaving the significance of all other factors substantially unaltered, may be quite wrong. We say 'may be' quite wrong because the task of the sentencer is to take account of all of the relevant factors and to arrive at a single result which takes due account of them all. That is what is meant by saying that the task is to arrive at an 'instinctive synthesis'. This expression is used, not as might be supposed, to cloak the task of the sentencer in some mystery, but to make plain that the sentencer is called on to reach a single sentence which, in the case of an offence like the one now under discussion, balances many different and conflicting features.

... the task of the sentencer is to take account of all of the relevant factors and to arrive at a single result which takes due account of them all. That is what is meant by saying that the task is to arrive at an "instinctive synthesis" …

106. In sentencing here, I have had regard, in particular, to the objective seriousness of the offence (which I have found to be at the low end of the spectrum of objective seriousness), that there was no actual harm to the environment, that the defendant had control over the causes that gave rise to the offence, and some need for specific deterrence.

107. These matters enable the Court to synthesise the relevant objective and subjective circumstances of the offence and the offender in light of the relevant purposes of sentencing set out in s 3A of the CSP Act, the maximum penalty for the offence (in the case of an individual, $500,000). The appellant has not established any circumstances that warrant a reduction of the sentence imposed by the Local Court. I consider that an appropriate penalty for the offence with which the appellant is charged would be that imposed in the Local Court, namely $1,600.

Costs

108. In the proceedings before Judge Gibson in the Local Court at Mount Druitt on 16 October 2025, the appellant was ordered to pay Council’s professional costs in the amount of $1,400 pursuant to s 215 of the CPA. While the appellant in her summons filed on 4 November 2025 did not seek an order specifically challenging the costs order of Judge Gibson, the first order sought in the summons was leave to appeal “the whole of the decision below”. Ground 29 in her appeal grounds provided:

The Local Court awarded legal costs to Council despite clear misrepresentations and Council's failure to comply with its obligations under applicable State Environmental Planning Policies (SEPPs) and the Biodiversity Conservation Act 2016. These failures were not adequately scrutinised by the court, resulting in an unfair costs order.

109. During the hearing of the appeal, Ms Rajagopalan submitted in relation to the costs order of Judge Gibson that Council “sought a monetary penalty and professional costs of $1,400 in respect of a minor timber structure acknowledged to involve only a minor level of environmental harm”; that the structure “caused no significant environmental impact” and “immediate removal was not being pursued”; and that “notwithstanding those findings, Council proceeded to criminal prosecution, sought penalty and costs, and relied upon enforcement measures later shown to be inconsistent and duplicative”. Council submitted that the costs “were just and reasonable, particularly considering the lengthy amount of time spent in Court dealing with the matter”.

110. Section 215(1) of the CPA provides that a court may order an accused who has been convicted or against whom an order has been made to pay “such costs as the court considers just and reasonable”. I find that there was nothing “inconsistent and duplicative” about Council’s enforcement measures. There was nothing unreasonable about the way in which the investigation was conducted or the proceedings were brought. On 27 November 2024, Council sent a letter to Ms Rajagopalan advising her that it was considering issuing a penalty notice in relation to her failure to comply with DCO 3 after it had been observed that the retaining timber wall was still in place, and after time for compliance with DCO 3 had been extended from 15 March 2024 to 31 May 2024. Council gave Ms Rajagopalan an opportunity to provide reasons as to why a formal caution should be issued instead. On 10 December 2024, she sent a letter to Council providing reasons as to in relation to why the “timber sediment control be allowed to remain” and why the “notice for proposed fine/caution may be withdrawn”. On 29 January 2025, more than 2 months after advising Ms Rajagopalan of its intent to issue a penalty notice, Council issued the penalty notice. Ms Rajagopalan elected to have the penalty notice determined by the Local Court. Council satisfied Judge Gibson beyond reasonable doubt that Ms Rajagopalan committed an offence against s 9.37 of the EPA Act. In these circumstances, I will not disturb the costs order of Judge Gibson that Ms Rajagopalan pay Council’s professional costs in the amount of $1,400.

111. In relation to the costs of the present appeals, in the hearing before me on 31 March 2026 Council indicated that it would be seeking costs in the event that the appeal was dismissed. On 2 April 2026, my chambers requested each party to provide short submissions in relation to costs.

112. Council submitted that it would be just for Ms Rajagopalan to compensate Council for the costs it incurred in defending the appeals. [25] In relation to the appeal against conviction, Council submitted that Ms Rajagopalan did not “challenge any of the material facts that underlie the elements of the offence for which she was convicted by the Local Court”, most of which she admitted to during cross-examination during the hearing in the Local Court. She did not “identify any error of law made by the trial judge”. Her appeal was “largely predicated on a perceived injustice that Council exercised its discretion to take regulatory action against her at all”, where the matters raised by Ms Rajagopalan in support of her appeal were “the same as those raised before the Local Court” and were “unrelated to the central issue” of whether she “failed to comply with a validly issued development control order”. Similarly in relation to the appeal against sentence, Council submitted that Ms Rajagopalan did not “raise any issues that were not before the Local Court”, and provided no evidence “that would satisfy the Court that she does not have capacity to pay the fine imposed”.

113. In relation to the costs of her appeals, Ms Rajagopalan made similar submissions to those she made in relation to the costs order of Judge Gibson. She submitted that the “lack of clarity and consistency in the enforcement process contributed to uncertainty as to the Appellant’s position and obligations” where “immediate removal was not understood to be required”. Further, Ms Rajagopalan submitted that she was “self-represented, employed on a casual basis in aged care, and has limited financial means” in relation to which she was “willing to provide supporting financial material”. She also claimed to have incurred $11,678 in legal costs, attaching invoices for a filing fee, legal advice, and transcript services. In these circumstances, Ms Rajagopalan submitted, a “substantial costs order would be disproportionate” and any costs order should “be reduced or otherwise moderated, if made”.

114. Section 49(4) of the CAR Act provides that subject to s 70, the Court may make “such order as to the costs to be paid by either party (including the Crown) as it thinks just”. The limitation in s 70 applies to costs against a public prosecutor when an appellant’s conviction has been set aside, and so does not apply here. In Gennacker, Pepper J said at [100]:

There being no limitation on the Court's power to award costs against an unsuccessful appellant in an appeal in Class 6 of the Court's jurisdiction (see, for example, Kogarah City Council v El Khouri [2014] NSWLEC 196 at [50] and [51]), other than to specify a time within which the costs must be paid (s 72(b) of CARA), the issue becomes one of discretion.

115. In Latoudis v Casey, [26] Mason CJ said at 543:

If one thing is clear in the realm of costs, it is that in criminal as well as civil proceedings, costs are not awarded by way of punishment of the unsuccessful party. They are compensatory in the sense that they are awarded to indemnify the successful party against the expense to which he or she has been put by reason of the legal proceedings: Cilli v. Abbott [(1981) 53 F.L.R., at p. 111].

116. In relation to Ms Rajagopalan’s submission that the “lack of clarity and consistency in the enforcement process contributed to uncertainty as to the Appellant’s position and obligations”, again, I have found that there was nothing “inconsistent and duplicative”, unclear or unreasonable in the way in which Council conducted its investigation and the proceedings in the Local Court or in this Court.

117. As Ms Rajagopalan has been entirely unsuccessful in her appeals, I find that it is just that Ms Rajagopalan pay Council’s costs as agreed or assessed.

Conclusion and orders

118. Accordingly, I make the following orders:

119. The appeal from the decision of Judge Gibson in Local Court proceedings 2025/00057134 dated 16 October 2025 is dismissed.

120. The appellant to pay Council’s costs of the appeal, as agreed or assessed, with such costs to be paid 28 days after an agreement as to the amount of costs has been made or a certificate of assessment of costs has been issued, whichever is the earlier.

**********

Endnotes

(2006) 65 NSWLR 539; [2006] NSWCCA 137.

[2008] NSWCA 313.

(2006) 164 A Crim R 39; [2006] NSWCCA 224 cited in Moore v Environment Protection Authority [2021] NSWLEC 87 at [17] to [29] (Pain J).

[2021] NSWLEC 95 at [15] (Pain J).

(1999) 199 CLR 270; [1999] HCA cited in Leach v The Queen (2007) 230 CLR 1; [2007] HCA 3 at [41] (Gleeson CJ); Strbak v The Queen (2020) 267 CLR 494; [2020] HCA 10 at [32] (Kiefel CJ, Bell, Keane, Nettle and Edelman JJ); Environment Protection Authority v Sydney Water Corporation [2019] NSWLEC 100 at [131] (Pepper J); Environment Protection Authority v Forestry Corporation of New South Wales [2022] NSWLEC 70 at [45] (Robson J); Environment Protection Authority v Metropolitan Collieries Pty Ltd [2025] NSWLEC 23 at [76] (Robson J).

[1998] 1 VR 359.

(2011) 244 CLR 120; [2011] HCA 39 cited in Tukuafu v The King [2024] NSWCCA 84 at [91] (Huggett J) (Ward P and Chen J agreeing); Jones v R [2025] NSWCCA 28 at [65] (Leeming JA, Dhanji and Yehia JJ).

(2009) 170 LGERA 253; [2009] NSWLEC 178 cited in Fairfield City Council v Oztech Developments Pty Ltd [2021] NSWLEC 81 at [57] (Robson J); Burwood Council v Alam [2025] NSWLEC 2 at [53] (Duggan J).

[2025] NSWLEC 39. See also Director-General of the Department of Environment and Climate Change v Rae (2009) 168 LGERA 121; [2009] NSWLEC 137 (Rae) at [25] (Preston CJ of LEC) cited in Chief Executive of the Office of Environment and Heritage v Turnbull (2017) 227 LGERA 290; [2017] NSWLEC 140 at [22] (Preston CJ of LEC); Environment Protection Authority v Maules Creek Coal Pty Ltd (No 4) [2025] NSWLEC 92 at [57] (Pritchard J).

[2019] NSWLEC 38. See also Secretary, Department of Planning and Environment v Khouzame (2024) 261 LGERA 49; [2024] NSWLEC 54 (Khouzame) at [24] (Preston CJ of LEC).

(2005) 228 CLR 357; [2005] HCA 25 quoted in Director of Public Prosecutions (Vic) v Dalgliesh (Pseudonym) (2017) 262 CLR 428; [2017] HCA 41 at [10] (Kiefel CJ, Bell and Keane JJ).

[2014] NSWCCA 102 cited in R v Tonga [2025] NSWCCA 100 at [92] (Cavanagh J).

(2014) 86 NSWLR 422; [2014] NSWCCA 84.

(2000) 50 NSWLR 115; [2000] NSWCCA 317.

[2003] NSWLEC 414.

[2020] NSWLEC 86.

(2006) 148 LGERA 299; [2006] NSWLEC 419 quoted in Environment Protection Authority v Forestry Corporation of New South Wales (No 3) [2026] NSWLEC 25 (Forestry Corporation) at [148] (Pain J).

[2002] NSWLEC 66 cited in Forestry Corporation at [148] (Pain J).

R v Paris [2001] NSWCCA 83 at [42] (Simpson J) (Ipp AJA and Wood CJ at CL agreeing).

R v Paris at [48] (Ipp AJA) (Wood CJ at CL agreeing); Moore v Environment Protection Authority (No 2) [2021] NSWLEC 146 at [66] (Pain J).

North Sydney Council v Perini (No 2) [2013] NSWLEC 91 (Perini) at [197] (Pepper J) citing R v Piccin (No 2) [2001] NSWCCA 323 at [25] (Hulme J); Chin v Ryde City Council (2004) 133 LGERA 312; [2004] NSWCCA 167 at [38] (Hodgson JA) (Levine and Hidden JJ agreeing); Terrey v Department of Environment, Climate Change and Water [2011] NSWLEC 141 (Terrey) at [114] (Pepper J).

Perini at [198]-[199] (Pepper J) citing Holroyd City Council v El-Khouri [2008] NSWLEC 83 at [34] (Jagot J); Gerondal v Eurobodalla Shire Council [2009] NSWLEC 160 at [47]–[51] (Pain J); Parramatta City Council v Cheng [2010] NSWLEC 94 at [41]–[45] (Pain J).

Perini at [200] (Pepper J) citing Blue Mountains City Council v Carlon [2008] NSWLEC 296 at [70]-[71] (Biscoe J); Terrey at [110] (Pepper J); Filipowski v Fratelli D'Amato Srl (2000) 108 LGERA 88; [2000] NSWLEC 50 at [139] (Talbot J); Thorneloe v Filipowski (2001) 52 NSWLR 60; [2001] NSWCCA 213 at [171] (Spigelman CJ); Filipowski v Hemina Holdings SA [2009] NSWLEC 104 at [149]-[153] (Pain J); Lavorato v The Queen (2012) 82 NSWLR 568; [2012] NSWCCA 61 at [126] (Schmidt J).

(2001) 207 CLR 584; [2001] HCA 64.

Citing De Battista v Shoalhaven City Council [2020] NSWLEC 164 at [81] (Pain J); Council of the City of Sydney v Blue Chip Franchise Pty Ltd [2017] NSWLEC 24 at [46] (Preston CJ of LEC); Jenner v Richmond Valley Council (2016) 218 LGERA 394; [2016] NSWLEC 115 at [44] (Pain J); and Tweed Shire Council v Gennacker Pty Ltd [2015] NSWLEC 3 (Gennacker) at [96]–[101] (Pepper J).

(1990) 170 CLR 534; [1990] HCA 59.