Lane Cove Council v Yi Wang

Cases Cited: Axer Pty Ltd v Environment Protection Authority (1993) 113 LGERA 357
Barbaro v The Queen [2014] HCA 2; (2014) 253 CLR 58
Bentley v BGP Properties Pty Ltd [2006] NSWLEC 34; (2006) 145 LGERA 234
Burwood Council v Abdul-Rahman [2021] NSWLEC 46
Cabonne Shire Council v Environment Protection Authority [2001] NSWCCA 280; (2001) 115 LGERA 304
Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683
Chief Executive of the Office of Environment and Heritage, Department of Premier and Cabinet v Turnbull [2014] NSWLEC 150
Chief Executive, Office of Environment and Heritage v Brummell [2019] NSWLEC 114; (2019) 242 LGERA 241
Chief Executive, Office of Environment and Heritage v Clarence Valley Council [2018] NSWLEC 205; (2018) 236 LGERA 291
Chief Executive, Office of Environment and Heritage v Leda Management Services Pty Ltd [2013] NSWLEC 111
Chief Executive, Office of Environment and Heritage v Murphy [2019] NSWLEC 210
Chief Executive, Office of Environment and Heritage v Rummery [2012] NSWLEC 271; (2012) 192 LGERA 314
City of Paramatta Council v Grand Epping Pty Ltd [2021] NSWLEC 70
City of Paramatta Council v Sydney Trees Excavation and Demolition Pty Ltd [2021] NSWLEC 71
Director-General, Department of Environment and Climate Change v Hudson (No 2) [2015] NSWLEC 110
Director-General, Department of Environment and Climate Change v Rae [2009] NSWLEC 137; (2009) 168 LGERA 121
Director-General, Department of Environment Climate Change and Water v Vin Heffernan Pty Ltd [2010] NSWLEC 200
Elias v The Queen [2013] HCA 1; (2013) 248 CLR 483
El Masri v Environment Protection Authority [2026] NSWLEC 4
Environment Protection Authority v Barnes [2006] NSWCCA 246
Environment Protection Authority v Custom Chemicals Pty Ltd [2016] NSWLEC 146
Environment Protection Authority v Hanna [2018] NSWLEC 80; (2018) 235 LGERA 114
Environment Protection Authority v Jackson [2024] NSWLEC 137
Environment Protection Authority v John Michelin & Son Pty Ltd [2019] NSWLEC 88
Environment Protection Authority v O’Brien [2025] NSWLEC 14
Environment Protection Authority v Rands [2019] NSWLEC 23
Environment Protection Authority v Abbas (as known as Osama Abbas) [2021] NSWLEC 57
Environment Protection Authority v Waste Recycling and Processing Corporation [2006] NSWLEC 419; (2006) 148 LGERA 299
Faaoloii v R [2026] NSWCCA 51
Georges River Council v RNA Building Solutions Pty Ltd [2024] NSWLEC 139; (2024) 262 LGERA 190
Georges River Council v SAF Developments Pty Ltd [2023] NSWLEC 50
Georges River Council v WK Strong Pty Ltd [2019] NSWLEC 97
Gittany Constructions Pty Ltd v Sutherland Shire Council [2006] NSWLEC 242; (2006) 145 LGERA 189
Hawkesbury City Council v Foster and Mushroom Composters Pty Ltd (1997) 97 LGERA 12
Hili v R [2010] HCA 45; (2010) 242 CLR 520
Hoare v The Queen [1989] HCA 33; (1989) 167 CLR 348
Jindalee Road Wines Pty Ltd v Natural Resources Access Regulator [2025] NSWCCA 215; (2025) 118 NSWLR 620
Johnson v The Queen [2004] HCA 15; (2004) 205 ALR 346
Kennedy v R [2022] NSWCCA 215
Ku-ring-gai Council v Chia (No 16) [2019] NSWLEC 184
Liverpool City Council v Leppington Pastoral Co Pty Ltd [2010] NSWLEC 170
Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357
Meis v R [2022] NSWCCA 118
Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59
Moore v R [2016] NSWCCA 185
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
Plath v Rawson [2009] NSWLEC 178; (2009) 170 LGERA 253
R v Dodd (1991) 57 A Crim R 349
R v Nichols (1991) 57 A Crim R 391
R v Oliver (1980) 7 A Crim R 174 at 177
R v Thomson [2000] NSWCCA 309; (2000) 49 NSWLR 383
R v Visconti [1982] 2 NSWLR 104
Secretary, Department of Climate Change, Energy, the Environment and Water v Vassallo [2026] NSWLEC 30
Secretary, Department of Planning and Environment v Aerotropolis Pty Ltd (No 2) [2025] NSWLEC 88
Secretary, Department of Planning, Industry and Environment v Ronald Lewis Greentree and Auen Grain Pty Ltd [2024] NSWLEC 131
Tabbah v The Queen [2019] NSWCCA 324
The Queen v Olbrich [1999] HCA 54; (1999) 199 CLR 270
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
Williams v R [2010] NSWCCA 15

Category: Sentence

Parties: Lane Cove Council (Prosecutor)
Yi Wang (Defendant)

Representation: Counsel:
Dr J Smith (Prosecutor)
E Yin (Defendant)
Solicitors:
HWLE Lawyers (Prosecutor)
NC Defence Lawyers (Defendant)

File Number(s): 2025/409707, 2025/409708, 2025/409709

Publication restriction: Nil

JUDGMENT

Wang Pleads Guilty to Vegetation Clearing Offences

1. Yi Wang has pleaded guilty to three offences against the Environmental Planning and Assessment Act 1979 (“EPAA”).

2. Each of the offences concern the clearing of vegetation between 8 and 22 November 2023, on an irregularly shaped parcel of land in Longueville, comprising (together, “the land”):

(a) a portion of Lot 1 in DP 177875, a small waterside lot owned by Lane Cove Council (“the Council”); and (b) a part of the Dunois Street Road Reserve and Griffith Park, as created by the registration of DP 1793 and dedicated as a public road on 7 September 2012.

3. While the offences arise out of the same course of conduct, Wang is to be sentenced for three separate offences.

4. The first offence is against ss 4.3 and 9.50(3A) of the EPAA (“BV Map Area offence”). As the first summons alleged it took place when Wang:

…aided, abetted, counselled, procured or conspired with a person to carry out development, namely the clearing of native vegetation on the Land without an approval first having been obtained, being development which was prohibited under the provisions of an environmental planning instrument which applied to the Land, namely the State Environmental Planning Policy (Biodiversity and Conservation) 2021 (BC SEPP).

5. The second offence also concerns a contravention of ss 4.3 and 9.50(3A) of the EPAA (“DCP Tree offence”). The second summons alleges that it was committed when Wang:

…aided, abetted, counselled, procured or conspired with a person to carry out development, namely the clearing of vegetation on the Land without a permit first having been obtained, being development which was prohibited under the provisions of an environmental planning instrument that applied to the Land, namely the State Environmental Planning Policy (Biodiversity and Conservation) 2021 (BC SEPP).

6. The final offence involves a breach of ss 4.2(1) and 9.50(3A) of the EPAA (“Public Bushland offence”). It was carried out by Wang when he:

…aided, abetted, counselled, procured or conspired with, a person to carry out development, namely the disturbance of public bushland on the Land, being development which may not be carried out except with development consent, pursuant to cl 5.23(2) of the Lane Cove Local Environmental Plan 2009 (LCLEP), and for which no such development consent was obtained or in force.

7. For the reasons contained in this judgment, I find that Wang is liable to pay a total monetary penalty of $187,500 for the commission of the three offences.

Wang is Instructed to Clear Vegetation from the Land

8. The factual background to the offences is not disputed. It was outlined in a comprehensive statement of agreed facts (“SOAF”), the salient features of which are summarised below.

9. The land is adjacent to a residential dwelling at 44 Lucretia Avenue, Longueville (“adjacent property”). This dwelling is owned by Sheng Hua Li. Li was previously married to Xian Jing Wu. Yao Wu, the daughter of Xian Jing Wu and the stepdaughter of Li, engaged Wang to undertake gardening works on the land.

10. On 8 November 2023 Wu instructed Wang to carry out grass trimming work at and around the adjacent property.

11. On 9 November 2023 Wang met Wu at the adjacent property. He was instructed to first attend to grass covering a pathway and then trim the grass towards the marina, that being grass located on the land.

12. While at the adjacent property on 9 November 2023, Wang also discussed payment with Wu. It was agreed that Wang would be paid for the grass trimming work on a daily basis and at an hourly rate.

13. On 9 November 2023, following completion of the grass trimming, Wu asked Wang to cut the trees on the land. Wang told Wu that he could not personally cut the trees and referred her to Yuxing (Jacky) Liang.

14. That same day, Wang and Wu called Liang to discuss the proposed work, including the height that trees on the land were to be cut to.

The Clearing and Disposal of Vegetation

15. Between 10 and 22 November 2023 Wang and Liang cleared vegetation from the land. Wang cleared cut branches and foliage from the ground surrounding the adjacent property and he also took this material to nearby waste facilities. Liang cut the trees using a chainsaw.

16. During this period Wang and Wu communicated using the social media platform WeChat. Wang regularly updated Wu as to how the work was progressing. Wang took photographs of the land as part of these updates. At this time, Wang was receiving ongoing instructions from Wu in relation to the clearing of vegetation on the land.

17. At the time of the offences, Wang owned a Nissan Navara. Liang owned a Toyota utility vehicle. CCTV footage from residences near the adjacent property shows these vehicles transporting cut branches and vegetation along Lucretia Avenue almost daily between 10 and 22 November 2023.

18. Invoices provided by Cleanaway Pty Ltd's Ryde Resource Recovery Centre (“Cleanaway Ryde”), together with a series of corroborating photographs, confirm that Liang’s vehicle was present at the facility on 15, 16, 17, 20, 21 and 22 November 2023. The images show Liang’s vehicle arriving at Cleanaway Ryde with cut branches and vegetation visible in the tray of the vehicle, and a man unloading the material from the tray.

19. Wang and Liang were paid in cash by Wu for removing vegetation from the land. Wu attended the adjacent property daily to make payment to Wang and Liang. Money was often left in a shoe at the front of the adjacent property for Wang to collect. Wang would then distribute money to Liang and other labourers involved in the vegetation removal.

20. On most days between 9 and 21 November 2023, Wang informed Wu through WeChat of the number of labourers that had been involved in clearing vegetation from the land; the hours worked by those labourers; and the total amount owed by Wu for that day of work. Wang recruited the assistance of between two and four labourers each day.

21. In the period between 8 and 22 November 2023, a total of 287 individual trees were removed from the land (“tree works”). Approximately 1,210 m2 of land was cleared as a result of the tree works.

Investigation by the Council

22. The Council was first made aware of the tree works by a member of the public on 23 November 2023. A Council ranger, Jad El Abed, visited the land that day to investigate the clearing.

23. Searches of the Council’s “HPE Content Manager Platform” were conducted that day. These searches confirmed that no approvals, permits, or consents had been issued for any tree removal on the land.

24. Subsequent to these initial investigatory steps, the Council conducted several recorded interviews, including with:

(a) Wu on 27 November and 12 December 2023 and 23 January 2025; (b) Rubert Wolff on 28 November 2023; (c) Wang on 29 November and 11 December 2023 and 31 July 2025; (d) Li, the owner of the adjacent property, on 29 November 2023 and 10 December 2024; (e) Bin Shang, Wang’s partner, on 12 December 2023; (f) King Siong Tan, a caretaker, on 11 November 2024; (g) Peisheng Hua, a labourer, on 22 November 2024; and (h) Beiheng Yue, a labourer, on 10 December 2024.

25. The first and second interview with Wang was conducted by Terry Muir, a private investigator who was earlier engaged to investigate the tree works.

26. Jacquelene Doran, another private investigator who was engaged by the Council on 24 September 2024, conducted the last interview with Wu on 23 January 2025. Doran conducted the last interview with Wang on 31 July 2025.

27. The Council also had several experts prepare reports on the impacts of the tree works. The first was by Hugh Millington, an arborist, who was briefed on 4 December 2023 to prepare an arboricultural report. The report, finalised on 22 December 2023, estimates that, among other things, the trees were cut at a similar point in time.

28. Millington later prepared a supplementary arboricultural report, dated 9 February 2026. This later report opines that the removed trees were of high arboricultural value.

29. Dr Chris McLean, a geologist, prepared an expert report dated 16 October 2025. His report assessed the ecological impacts of the tree works. The report identified that most, if not all, of the trees on the land were alive at the time of the tree works, and that their removal changed the natural ecology of the land.

30. It was agreed that prior to the tree works being carried out, three natural vegetation communities existed on the land: Coastal Sandstone Foreshores Forest (“Foreshores Forest”); Estuarine Swamp Oak Forest (“Swamp Oak Forest”); and Mangrove Forest.

31. Phil Hunt, a senior archaeologist at the Aboriginal Heritage Office, assessed the extent of the damage caused by the tree works to an Aboriginal shell midden on the land. The midden constitutes an Aboriginal heritage site. Hunt’s archaeological report, dated 30 November 2023, determined that the tree works greatly reduced the midden’s natural protective leaf litter groundcover.

Legislative Framework Governing the Commission of the Offences

32. The three offences relate to distinct but overlapping geographic areas of the land. These geographic areas are subject to several legislative instruments which protect specific interests. It is desirable to set out these legislative instruments, and the schemes they create, to differentiate between the three offences.

BV Map Area offence

33. Proceeding 2025/409707, which is concerned with the BV Map Area offence, relates to the clearance of 32 trees from the land. These trees are listed at annexure A to the first summons. Their location prior to removal is also represented in visual form by red dots on the plan found at annexure B to that summons. That plan is attached to these reasons at annexure ‘A’.

34. It was agreed that the clearing of the 32 trees constitutes a breach of s 4.3 of the EPAA, which provides that:

4.3 Development that is prohibited

If an environmental planning instrument provides that—

(a) specified development is prohibited on land to which the provision applies, or

(b) development cannot be carried out on land with or without development consent,

a person must not carry out the development on the land.

35. Wang is liable for the BV Map Area offence by reason of the operation of s 9.50(3A) of the EPAA:

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.

36. The BV Map Area offence occurred because the removal of the 32 trees took place “without approval first having been obtained” under the State Environmental Planning Policy (Biodiversity and Conservation) 2021 (“BC SEPP”). The relevant approval provisions in the BC SEPP are contained in Ch 2, which is entitled “Vegetation in non-rural areas”. The nexus between Ch 2 to the portion of the land where the 32 trees were located is explained by s 2.3 of the BC SEPP:

2.3 Land to which Chapter applies

(1) This Chapter applies to the following areas of the State (the non-rural areas of the State)—

(a) land in the following local government areas—

…Lane Cove…

(b) land within the following zones under an environmental planning instrument—

…Zone C2 Environmental Conservation…

37. The land is located within the geographic boundaries of the Council and is zoned “C2 Environmental Conservation”.

38. Section 2.6 of the BC SEPP states when clearing vegetation in a non-rural area requires a permit or approval. In particular, s 2.6(2) and (6) state:

2.6 Clearing that requires permit or approval

…

(2) A person must not clear native vegetation in a non-rural area of the State that exceeds the biodiversity offsets scheme threshold without the authority conferred by an approval granted by the Native Vegetation Panel under Part 2.4.

…

(6) For the purposes of the Act, section 4.3, clearing vegetation that requires a permit or approval under this Chapter is prohibited if the clearing is not carried out in accordance with the permit or approval.

39. For the purposes of s 2.6 of the BC SEPP, when clearing of vegetation will exceed the “biodiversity offsets scheme threshold”, and is therefore prohibited, is set out in cl 7.1 of the Biodiversity Conservation Regulation 2017:

7.1 Biodiversity offsets scheme threshold (section 7.4)

(1) Proposed development exceeds the biodiversity offsets scheme threshold for the purposes of Part 7 of the Act if it is or involves—

…

(b) the clearing of native vegetation, or other action prescribed by clause 6.1, on land included on the Biodiversity Values Map published under clause 7.3.

40. The part of the land on which the 32 cleared trees subject of the BV Map Area offence previously stood is identified on the Biodiversity Values Map. It was agreed between the parties that the Native Vegetation Panel (“NVP”) had not granted an approval for the clearing of the 32 trees. Accordingly, the removal of those trees was prohibited.

DCP Tree offence

41. Proceeding 2025/409708 was commenced in response to the clearing of 255 trees from the land during the course of the tree works. These 255 trees, listed at annexure A to the second summons, were located on a different part of the land to those subject of the BV Map Area offence. This is shown visually on the plan at annexure B to that summons, which is attached to these reasons at annexure ‘B’.

42. The parties agree that Wang contravened s 4.3 of the EPAA, by the application of s 9.50(3A), because the 255 trees were removed “without a permit first having been obtained”. The permit referred to is an approval that is issued by the Council under Pt 2.3 of the BC SEPP.

43. Section 2.9 of the BC SEPP sets out the vegetation to which the statutory requirements found in Pt 2.3 apply:

2.9 Vegetation to which Part applies

(1) This Part [Pt 2.3] applies to vegetation in any non-rural area of the State that is declared by a development control plan to be vegetation to which this Part applies. …

44. The 255 trees the subject of the DCP Tree offence fall within Pt 2.3 of the BC SEPP by reason of the Lane Cove Council Development Control Plan 2010 (“LC DCP”).

45. Section 2.6(1) of the BC SEPP states that:

2.6 Clearing that requires permit or approval

(1) A person must not clear vegetation in a non-rural area of the State to which Part 2.3 applies without the authority conferred by a permit granted by the council under that Part. …

46. No permit for the purposes of s 2.6(1) of the BC SEPP was granted by the Council to clear the 255 trees. The clearance of those 255 trees was accordingly unlawful.

Public Bushland offence

47. Proceeding 2025/409709 is responsive to the clearing of the 287 trees from the land. The location of these trees is visualised in the plan attached at annexure ‘C’.

48. The parties agreed that the clearing of the 287 trees amounts to a breach of s 4.2 of the EPAA, for which, again, Wang is responsible by reason of s 9.50(3A):

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.

49. Clause 5.23(2) of the Lane Cove Local Environmental Plan 2009 (“LC LEP”), provides that:

5.23 Public bushland

…

(2) Development that will disturb, or is reasonably likely to disturb, public bushland is permitted with development consent.

50. It was not in contention between the parties that the 287 trees were classified as “public bushland” for the purposes of cl 5.23(2) of the LC LEP. The term “public bushland” is defined in cl 5.23(9):

public bushland means land—

(a) on which there is vegetation that is—

(i) a remainder of the natural vegetation of the land, or

(ii) representative of the structure and floristics of the natural vegetation of the land, and

(b) that is owned, managed or reserved for open space or environmental conservation by the Council or a public authority.

51. For the purposes of cl 5.23(2) of the LC LEP, the tree works “disturbed” vegetation classified as “public bushland”. In the absence of development consent this disturbance was unlawful.

Evidence Relied Upon by the Parties

52. In addition to the SOAF, the Council relied on the affidavit of Mark Brisby, sworn 23 October 2025, and a series of media articles written about the tree works.

53. Wang relied on three affidavits affirmed by him. The first on 3 June 2026 (“the first Wang affidavit”), the second on 10 July 2026 (“the second Wang affidavit”), and the third also on 10 July 2026 (“the third Wang affidavit”).

54. In the first Wang affidavit, among other things, Wang:

(a) deposes to being employed by “Cochlear Limited” (“Cochlear”) but also operating a landscaping company called “Sydney Garden Home Pty Ltd” (“SGH”); (b) annexed copies of his income tax returns for the 2022-2025 financial years; (c) annexed a copy of the payslip that he received from Cochlear for work undertaken between 28 March 2026 to 10 April 2026; (d) annexed copies of the invoices that he issued to Wu for the clearing work he and his subcontractors carried out between 10 and 23 November 2023; and (e) deposed that, with the benefit of hindsight, he should have never accepted the job to carry out the tree works and that he has “fully cooperated with Lane Cove Council’s investigators from the beginning” of its investigation.

55. The second Wang affidavit deposed to the fact that if a large financial penalty was imposed by the Court, his household would both be “deeply impacted” and that he would “struggle to pay” such an amount. Annexed to the second Wang affidavit was additional information about Wang’s personal financial circumstances and the finances of SGH.

56. The third Wang affidavit described Wang’s assistance to the Council after entering his plea of guilty to the summonses.

Sentencing Principles

57. In fixing the appropriate penalty for the offences, regard is to be had to the purposes of sentencing itemised in s 3A of the Crimes (Sentencing Procedure) Act 1999 (“CSPA”):

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.

58. The purposes of punishment, denunciation and retribution are important in sentencing for environmental offences. There is a need for the Court, through the penalty imposed, to denounce the wrongful conduct, hold Wang accountable for his actions and ensure he is adequately punished. The penalty should accord with the general moral sense of the community in relation to the offences in the circumstances of the case (Secretary, Department of Planning, Industry and Environment v Ronald Lewis Greentree and Auen Grain Pty Ltd [2024] NSWLEC 131 at [60]; Chief Executive, Office of Environment and Heritage v Clarence Valley Council [2018] NSWLEC 205; (2018) 236 LGERA 291 at [91] and Plath v Rawson [2009] NSWLEC 178; (2009) 170 LGERA 253 at [168]).

59. Subsections 21A(2) and (3) of the CSPA set out the aggravating and mitigating factors that the Court is to consider in imposing a sentence. Relevant to the facts of this matter, they are:

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—

…

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

…

(n) the offence was part of a planned or organised criminal activity,

(o) the offence was committed for financial gain,

…

(3) Mitigating factors The mitigating factors to be taken into account in determining the appropriate sentence for an offence are as follows—

…

(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),

(l) the degree of pre-trial disclosure by the defence (as provided by section 22A),

(m) assistance by the offender to law enforcement authorities (as provided by section 23),…

60. An appropriate sentence for Wang is arrived at by an instinctive synthesis of all relevant objective and subjective circumstances (Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357).

61. Aggravating factors must be proven by the Council beyond reasonable doubt. The onus is on Wang, however, to establish any factor in mitigation on the balance of probabilities (Kennedy v R [2022] NSWCCA 215 at [48]; Meis v R [2022] NSWCCA 118 at [29] and The Queen v Olbrich [1999] HCA 54; (1999) 199 CLR 270).

Objective Circumstances

62. The upper and lower limits of proportionate punishment are fixed by the objective gravity of the offences. It fixes the upper limit because the sentence imposed on Wang must not exceed what is proportionate to the gravity of the offences considered in light of their objective circumstances (Faaoloii v R [2026] NSWCCA 51 at [147]; Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465 at 486 and Hoare v The Queen [1989] HCA 33; (1989) 167 CLR 348 at 354). The lower limit is also fixed because the Court in making allowance for subjective factors relevant to the case ought not produce a sentence that does not reflect the 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).

63. Objective seriousness is to be determined by reference to the nature of the offence and not by reference to matters that are personal to a particular offender (Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120 at [27]).

Nature of the offences

64. The objective seriousness of the offences is informed by the nature and purpose of the contravened provisions, as well as their place in a broader statutory scheme (Environment Protection Authority v O’Brien [2025] NSWLEC 14 at [33]; Burwood Council v Abdul-Rahman [2021] NSWLEC 46 at [47] and Bentley v BGP Properties Pty Ltd [2006] NSWLEC 34; (2006) 145 LGERA 234 at [168]-[172]).

65. Relevant to all three offences are the objects of the EPAA, which are set out in s 1.3. They include:

1.3 Objects of Act

The objects of this Act are as follows—

(a) to promote the social and economic welfare of the community and a better environment by the proper management, development and conservation of the State’s natural and other resources,

…

(d) to protect the environment, including the conservation of threatened species of native animals and plants and ecological communities and their habitats,

…

(f) to promote the sustainable management of built and cultural heritage, including Aboriginal cultural heritage,

(g) to promote good design, amenity and the proper construction and maintenance of built environments, including the protection of the health and safety of the occupants of buildings,

(h) to provide opportunities for participation in environmental planning and assessment,

(i) to facilitate ecologically sustainable development by integrating relevant economic, environmental and social considerations in decision-making about environmental planning and assessment,…

66. The parties agreed that relevant to the BV Map Area offence and DCP Tree offence are the purposes articulated in s 1.3 of the Biodiversity Conservation Act 2016, namely:

1.3 Purpose of Act

The purpose of this Act is to maintain a healthy, productive and resilient environment for the greatest well-being of the community, now and into the future, consistent with the principles of ecologically sustainable development (described in section 6(2) of the Protection of the Environment Administration Act 1991), and in particular—

(a) to conserve biodiversity at bioregional and State scales, and

(b) to maintain the diversity and quality of ecosystems and enhance their capacity to adapt to change and provide for the needs of future generations, and

…

(d) to support biodiversity conservation in the context of a changing climate, and

…

(g) to regulate human interactions with wildlife by applying a risk-based approach, and

(h) to support conservation and threat abatement action to slow the rate of biodiversity loss and conserve threatened species and ecological communities in nature, and

(i) to support and guide prioritised and strategic investment in biodiversity conservation, and

…

(k) to establish a framework, reflecting the avoid, minimise and offset hierarchy, to avoid, minimise and offset the impacts of proposed development and land use change on biodiversity,…

67. The aims of Ch 2 of the BC SEPP are also relevant. These are located in s 2.1 of that instrument:

2.1 Aims of Chapter

The aims of this Chapter are—

(a) to protect the biodiversity values of trees and other vegetation in non-rural areas of the State, and

(b) to preserve the amenity of non-rural areas of the State through the preservation of trees and other vegetation.

68. In relation to the DCP Tree offence, Pt J of the LC DCP, under the heading “Tree Preservation Guidelines”, states that the LC DCP has the following objectives:

The objectives of this section are:

1. The retention of the maximum possible number of existing trees, particularly native trees, within the Municipality.

2. To avoid unnecessary tree removal and promote the social, environmental, and economic benefit of trees.

3. To increase Tree Canopy Cover and maintain Biodiversity Corridors.

69. Comparable statements can be found in the LC LEP, which are relevant to the Public Bushland offence:

1.2 Aims of Plan

(2) The particular aims of this Plan are as follows—

…

(a) to establish, as the first land use priority, Lane Cove’s sustainability in environmental, social and economic terms, based on ecologically sustainable development, inter-generational equity, the application of the precautionary principle and the relationship of each property in Lane Cove with its locality,

(b) to preserve and, where appropriate, improve the existing character, amenity and environmental quality of the land to which this Plan applies in accordance with the indicated expectations of the community,

…

(e) in relation to the management of open space, public and privately-owned bushland, riparian and foreshore land—

(i) to protect and, where possible, restore all bushland areas, including all rare and threatened species and communities, and

(ii) to protect and, where possible, restore all riparian land along, and the inter-tidal zones and foreshores of, the Lane Cove River and Sydney Harbour and their tributary creeks,…

70. A central feature of the regulatory scheme set out above is the need to obtain the requisite approval to clear vegetation. Consent is the primary basis upon which the objects of the statutory regime are achieved (Auen Grain at [76]).

71. Similar observations were made in Abdul-Rahman, a matter that also involved the clearing of trees from a parcel of land in a non-rural area (at [49]):

49 In Heatscape Pty Ltd v Mahoney (No 2) [2016] NSWLEC 45; (2016) 217 LGERA 332 the Court observed the following in respect of the environmental crime of undertaking development without consent (at [235]):

235 The offence of undertaking development without consent undermines the integrity of the system of planning and development controls enacted in the State. In short, "this system depends on persons taking steps to obey the law by ascertaining when development consent is required and then obtaining development consent before carrying out development" (Scahill at [46]. See similar statements in Gittany at [104]-[105]; Byron Shire Council v Fletcher [2005] NSWLEC 706; (2005) 143 LGERA 155 at [60]- [61]; Lane Cove Council v Wu [2011] NSWLEC 43 at [17]; Cessnock City Council v Bimbadgen Estate Pty Ltd (No 2) [2011] NSWLEC 140 at [62] and Hurstville City Council v Naumcevski [2011] NSWLEC 226 at [49]).

72. These remarks are apposite to Wang’s wrongdoing. The three offences were committed without obtaining any of the requisite consents, permits or approvals. As such, the commission of the three offences offended the legislative objectives and in so doing undermined the integrity of the planning regime established by those instruments.

73. Wang’s conduct precluded, for example, an assessment by the NVP of whether the removal of the 32 trees subject of the BV Map Area offence should be permitted or refused. The Council was likewise denied the opportunity in respect of the clearing of the trees the subject of the DCP Tree offence and Public Bushland offence. This undermined the system of planning and development in New South Wales (Ku-ring-gai Council v Chia (No 16) [2019] NSWLEC 184 at [25]-[26]).

Maximum penalty

74. The gravity of the offences for which Wang is responsible should be measured by reference to the range of penalty available to the Court. That is because the maximum penalty provided for the commission of an offence represents Parliament’s expression of the offence’s seriousness (Axer Pty Ltd v Environment Protection Authority (1993) 113 LGERA 357 at 359 and Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 at 697-698).

75. The maximum penalty delineated by the applicable statute also serves as a basis of comparison or “yardstick” (Georges River Council v RNA Building Solutions Pty Ltd [2024] NSWLEC 139; (2024) 262 LGERA 190 at (38); Markarian at [31] and Elias v The Queen [2013] HCA 1; (2013) 248 CLR 483 at [27]).

76. Breaches of ss 4.2(1) and 4.3 of the EPAA attract a Tier 1 monetary penalty by way of a maximum penalty. However, the parties agreed that each offence should be sentenced as a Tier 2 offence.

77. Section 9.53(1)(b) provides that, for an individual, the maximum penalty for a Tier 2 offence is $500,000.

78. The size and scale of the tree works must be considered in assessing where on the yardstick of the maximum penalty the particular offence involving the unlawful carrying out of that development lies (RNA Building at [40]).

Extent of the harm caused or likely to be caused by the commission of the offences (s 21A(2)(g) of the CSPA)

79. The extent of the harm caused, or likely to be caused, to the environment by Wang’s offending may serve to increase the seriousness of his offences (Chief Executive, Office of Environment and Heritage v Leda Management Services Pty Ltd [2013] NSWLEC 111 at [20]).

80. The concept of harm in relation to environmental offences is broad. It encompasses both actual and potential harm. If the harm is substantial, this objective circumstance may constitute an aggravating factor (Environment Protection Authority v Waste Recycling and Processing Corporation [2006] NSWLEC 419; (2006) 148 LGERA 299 at [145]-[149]).

81. Turning to the BV Map Area offence, the removal of the 32 trees resulted in the loss of 5 m2 of Mangrove Forest, 80 m2 of Swamp Oak Forest, and 25 m2 of Foreshores Forest.

82. According to vegetation mapping carried out in 2023, 75.86 ha of Foreshores Forest was present within the boundaries of the Council. The 25 m2 of Foreshores Forest lost as a result of the commission of the BV Map Area offence represents harm to less than 0.01% of the total extent of this vegetation community in the local government area.

83. The presence of Swamp Oak Forest is limited within the Council’s geographic boundaries. Only 3.7 ha of this vegetation community could be identified in 2023. The Swamp Oak Forest removed in the process of the commission of the BV Map Area offence represents 0.02% of the total of that vegetation community in existence prior to the tree works. Both parties agreed that the removal of the trees “reduced the viability of the local occurrence of the Estuarine Swamp Oak Endangered Ecological Community” to the point that the impact would be classified as “significant” when assessed against s 7.3 of the Biodiversity Conservation Act 2016.

84. The commission of the DCP Tree offence resulted in the removal of 255 trees or 600 m2 of Swamp Oak Forest and 500 m2 of Foreshores Forest. This represents 1.62% of the Swamp Oak Forest and 0.07% of the Foreshores Forest previously present within the boundaries of the Council’s geographic area.

85. The commission of the Public Bushland offence concerns the removal of all 287 trees from the land. As a result, the harm caused by the Public Bushland offence includes that caused by the commission of the BV Map Area offence and DCP Tree offence. Before and after images of the land help illustrate the extent of that harm captured by the Public Bushland offence. The aerial photo below shows the state of the land on 3 October 2023, that is, before the tree works were completed:

86. The next aerial image shows the state of the land on 7 December 2023, after the completion of the tree works:

87. The commission of the Public Bushland offence resulted in harm to the entirety of the local occurrence of Swamp Oak Forest. This vegetation community does not exist elsewhere in Griffith Park. Other examples of Swamp Oak Forest within the Council’s geographic area are separated from the land by urban development.

88. In addition, the SOAF notes that the commission of all three offences have caused harm to fauna resulting from the destruction of:

94 The Tree Works removed foraging and breeding habitat that is likely to have been used by a range of protected native species, including:

a. diurnal birds including urban generalist species such as the Rainbow Lorikeet (Trichoglossus moluccanus), Sulphur Crested Cockatoo (Cacatua galerita), Magpie Lark (Grallina cyanoleuca), Pied Currawong (Strepera graculina) and Noisy Miner (Manorina melanocephala);

b. microbats including Gould's Wattled Bat (Chalinolobus gouldii), Eastern Freetail Bat (Mormopterus ridei) and White-striped Freetail-bat (Austronomus australis);

c. Common Brushtail Possum (Trichosurus vulpecula) and Common Ringtail Possum (Pseudocheirus peregrinus); and

d. nocturnal birds including Tawny Frogmouth (Podargus strigoides) and Southern Boobook Owl (Ninox boobook).

95 The two possum species prefer to forage within a tree or shrub canopy to obtain shelter from ground-based predators. The Tree Works removed all vegetation structure and reduced the likelihood that these species will utilise the Land.

96 The following threatened species potentially utilised the Land prior to the Tree Works:

a. Large Bent-wing Bat (Miniopterus schreibersii);

b. Little Bent-wing Bat (Miniopterus australis);

c. Southern Myotis (Myotis macropus); and

d. Powerful Owl (Ninox strenua).

97 All of the threatened fauna species identified above have a large territory and foraging range. The Bentwing bat species travel up to 60 km per night, while the Powerful Owl has a foraging range of several hundred hectares. The Tree Works reduced the suitability of the Land as foraging habitat and resulted in an incremental impact, but did not place any of these species at risk of local extinction.

98 Microbats forage for insects and require 'flyways' for foraging. They are disadvantaged by dense vegetation, often referred to as 'clutter'. Optimal microbat habitat consists of vegetation with a high invertebrate abundance and clear flyways. Invertebrate abundance in Sydney bushland is correlated with habitat complexity. The Tree Works reduced the structure of the vegetation and likely reduced the overall abundance of invertebrates, thereby reducing the suitability of the Land for foraging by microbats.

99 The regenerating vegetation is dense and permits microbats to forage only above the vegetation, rather than within it. This situation will persist until the vegetation begins to self-thin, which will occur in approximately 20-30 years.

100 The Powerful Owl relies entirely on arboreal prey, predominantly Brushtail and Ringtail Possum. Ringtail Possum forages on Swamp Oak foliage but is rarely less than 3 m above the ground. In areas of Coastal Sandstone Foreshores Forest, the shrubs present do not achieve a mature height to allow foraging by the Ringtail Possum, which in this habitat forages within Eucalypt and Angophora. It may also be several years before Eucalypt and Angophora achieve a suitable height for Ringtail Possums to forage, thereby reducing the extent of foraging habitat for the Powerful Owl.

101 The Common Brushtail Possum has greater foraging flexibility and forages on the ground, but requires adequate densities of high nutrient foliage, invertebrates and berries. Use of the Land by the Common Brushtail Possum now requires a larger home range to obtain the same resources that were available prior to the Tree Works.

102 Juvenile Brushtail Possums and all Ringtail Possums are prey for the Powerful Owl but capture efficiency within dense regrowth for the Powerful Owl is likely to be reduced compared to hunting within an open forest with wider spacing among trees and shrubs. The Tree Works reduced the suitability of the Land as foraging habitat for the Powerful Owl.

103 Considering the above, the Tree Works resulted in actual environmental harm to fauna through exposure, predation and competition, forced displacement of species due to removal of vegetation that provided protection, foraging habitat, roosting habitat and nesting habitat.

89. The regeneration of the trees to a comparable ecological condition to that which existed prior to the carrying out of the tree works will take 20 to 30 years. The native forest canopy that existed prior to the tree works had persisted on the land since at least 1943. During the regeneration period, the regrowth will be susceptible to pathogen entry. There is also risk that the regrowth’s physical attachment to the ground will be weaker than that of the previous vegetation.

90. The likelihood of weed invasion on the land has also increased as a consequence of the tree works.

91. Millington opines that because of these factors, “the clearing works have caused some reduction in SULE [Safe Useful Life Expectancy]” of any regrowth on the land.

92. The loss of vegetal cover that the commission of the three offences engendered also greatly reduced the natural leaf litter ground cover that protected the midden present on the land. Pedestrian traffic occasioned by the carrying out of the tree works is likely to have disturbed the midden, with a large club whelk shell having been displaced.

93. Each offence resulted in significant and actual harm to the visual amenity of the foreshore area at Woodford Bay.

94. The Council therefore submitted that the commission of each offence resulted in “substantial” harm.

95. Wang characterised the harm associated with the offences as “significant”. There is no real difference between these two terms (Environment Protection Authority v Custom Chemicals Pty Ltd [2016] NSWLEC 146 at [67]). The commission of the three offences, taken individually, caused substantial harm. This harm constitutes a factor in aggravation.

Practical measures to prevent harm

96. The Council submitted that there were practical measures available to Wang to avoid or mitigate the harm caused by the commission of the offences. That should be accepted.

97. Wang could have enquired with the Council as to whether any approval was required to carry out the tree works. He could have asked Wu about whether any approval for the tree works had been obtained by her, or if efforts had been made to obtain a necessary approval, permit or permission. Wang deposed to as much in the first Wang affidavit. None of these positive steps were taken. That absence of action is a factor elevating the objective gravity of the offences in the circumstances.

State of mind of Wang at the time of the commission of the offences

98. A contravention of ss 4.2(1) and 4.3 is a strict liability offence and no mental element needs to be proved by the Council. However, a strict liability offence that is carried out intentionally, recklessly or negligently will be objectively more serious than one that is inadvertently committed. Therefore, the state of mind of Wang at the time that the offences were committed may be relevant to determining their objective seriousness (El Masri v Environment Protection Authority [2026] NSWLEC 4 at [31]).

99. The Council submitted that Wang was reckless in committing the offences. The test for recklessness was set out by the Court in Environment Protection Authority v Jackson [2024] NSWLEC 137 (at [114]-[115]):

114 In Plath the Court considered the meaning of the term "recklessness" (at [98]):

98 The term recklessness describes the state of mind of an offender who, while performing or failing to perform an act, is aware of the risk that a particular consequence is likely, in the sense of probable or possible, to result from that act or omission (Pemble v R (1971) 124 CLR 107, La Fontaine v R (1976) 136 CLR 62 and R v Crabbe (1985) 156 CLR 464). Recently in Blackwell v R [2011] NSWCCA 93, the Court of Criminal Appeal described the mental element of "reckless" as (at [76]):

[76] The effect of this line of authority is that where the mental element of an offence is recklessness, the Crown must establish foresight of the possibility of the relevant consequence.

115 In Ridley AgriProducts Robson J held (at [72]):

72 For an offender to be reckless in the commission of an offence, they need to have "knowledge or foresight of the likelihood of the consequence or circumstance occurring" in the sense of a "real and not remote" chance: Brummell at [52]. While pertaining to different factual circumstances to those in the present matter, in Chief Executive, Office of Environment and Heritage v Rummery [2012] NSWLEC 271; (2012) 192 LGERA 314 at [126], Pepper J considered recklessness in the context of clearing native vegetation as follows:

An offender's conduct will be classified as reckless where he or she is put on notice, in the sense that he or she believes or suspects, that the clearing of native vegetation may be unlawful but nevertheless proceeds to undertake the clearing without making further enquiries (Director-General, Department of Environment, Climate Change and Water v Linklater [2011] NSWLEC 30 at [50] and Director-General, Department of the Environment and Climate Change v Olmwood (No 2) [2010] NSWLEC 100 at [50]).

100. Wang, by contrast, submitted that he did not act recklessly and that at its highest, his conduct was negligent. He submitted that the evidence was more consistent with serious negligence arising from poor judgment and misplaced reliance upon the landowner’s assurances than with deliberate or reckless circumvention of a planning regime.

101. The meaning of negligence in a criminal context was explained by the Court in City of Parramatta Council v Sydney Trees Excavation and Demolition Pty Ltd [2021] 71 NSWLEC (at [94]):

94 The test for criminal negligence in the context of environmental crime is to inquire whether there has been 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 the omission merits criminal punishment (Environment Protection Authority v Sydney Water Corporation [2019] NSWLEC 100 at [188] and Sydney Water Corporation [2021] NSWLEC 4 at [176]).

102. The difference between recklessness and negligence, albeit in the context of unlawful clearing under the Native Vegetation Act 2003, was examined in Chief Executive, Office of Environment and Heritage v Brummell [2019] NSWLEC 114; (2019) 242 LGERA 241 (at [51]-[53]):

51 A critical difference between the two mental states is that recklessness is measured on a subjective standard (the referent being the offender) while negligence is measured on an objective standard (the referent is a hypothetical reasonable person).

52 Recklessness refers to the state of mind of the offender who, in clearing native vegetation, is aware of a risk that the particular consequence or circumstance, that the clearing will be done except in accordance with such lawful authority, is likely to result. The offender is reckless when he or she has knowledge or foresight of the likelihood of the consequence or circumstance occurring. The word “likely” conveys “the notion of a substantial – a ‘real and not remote’ – chance regardless of whether it is less or more than 50 per cent”: Boughey v The Queen (1986) 161 CLR 10 at 21.

53 Negligence, in contrast, assesses the offender’s conduct not be reference to what the offender knew, foresaw or did, but rather by reference to what a hypothetical reasonable person would have known, foreseen or done in the circumstances. In the context of s 12(1) of the NV Act, negligence refers to whether a hypothetical reasonable person in the position of the offender would have known or foreseen that the consequence or circumstance, that the clearing will be done except in accordance with the lawful authority of a development consent or a property vegetation plan, is likely to result. The issue is to be decided on an objective basis. What is to be considered is whether the risk of this consequence or circumstance was foreseeable to the reasonable person in the position of the offender, not whether the offender subjectively foresaw the risk: NSW Sugar Milling Cooperative Ltd v Environment Protection Authority (1992) 75 LGRA 320 at 321, 324, 325.

103. In support of its submission that Wang had acted recklessly in the commission of the offences, the Council relied on the following matters:

(a) Wang was “put on notice” when, as he deposed to in his first affidavit, a casual worker asked Liang whether it was okay for him to be cutting down tree branches. Wang stated that he later went “on Lane Cove Council’s website to check if what Jacky was doing was ok”. He “could not find specific information regarding Ms Wu’s property”; (b) there were several instances where Wang described his conduct as “reckless”. For example, in the first Wang affidavit, he said that he was “reckless and did not do thorough checks with Lane Cove Council to make sure what Jacky and I were doing was actually approved”; and (c) Wang returned to the land over the course of approximately 12 days, which suggested a “continuing course of conduct rather than a momentary lapse of judgment”.

104. Wang was not cross-examined about his state of mind at the time the offences were committed.

105. In response, Wang noted the following:

…it is the objective evidence, rather than his choice of language, that must determine the proper characterisation of his culpability. The agreed facts and the Defendant’s own affidavit establish that the Defendant accepted Ms Wu’s repeated assurances that the land formed part of her backyard and that she was entitled to have the vegetation removed…

106. The SOAF relevantly establishes that (footnotes omitted):

17 On 9 November 2023, following completion of the grass trimming works by the Defendant, Yao Wu asked the Defendant to also cut the trees on the Land. The Defendant told Yao Wu that he could not personally cut the trees and referred her to Yuxing (Jacky) Liang (Mr Liang).

18 Also on 9 November 2023, while at the Adjacent Property, the Defendant and Yao Wu called Mr Liang and discussed the proposed work, including the height the trees were to be cut to on the Land (Tree Works).

19 Between 10 and 22 November 2023, on instructions from Yao Wu, the Defendant and Mr Liang attended the Adjacent Property to carry out the Tree Works, including the removal of the cut vegetation to nearby waste facilities. The Defendant was involved in the clearing of cut branches and foliage from the ground surrounding the Adjacent Property, and the removal of this material to nearby waste facilities. Mr Liang used a chainsaw to cut the trees.

20 During this period, the Defendant and Yao Wu communicated extensively via WeChat. The Defendant provided Yao Wu with almost daily updates on the Tree Works via WeChat. The updates provided by the Defendant included photographs of the Tree Works and Land. During this period, the Defendant received ongoing instructions in relation to the Tree Works from Yao Wu.

107. In my view, these paragraphs do not provide support for the proposition contended for by Wang that he accepted “Ms Wu’s repeated assurances that the land formed part of her backyard”. Similarly, Wu telling him that “this [the land] is my backyard”.

108. Cases involving vegetation clearing indicate that recklessness will be made out where the person is on notice about the unlawfulness of the clearing but proceeds without making further enquiries (see, for example, Director-General, Department of Environment and Climate Change v Hudson (No 2) [2015] NSWLEC 110 at [136]; Georges River Council v SAF Developments Pty Ltd [2023] NSWLEC 50 at [66]; Sydney Trees Excavation and Demolition Pty Ltd at [94]-[96] and Chief Executive, Office of Environment and Heritage v Rummery [2012] NSWLEC 271; (2012) 192 LGERA 314 at [126]).

109. Recklessness is subjectively assessed. His online enquiry once he was put on notice that the tree works may require permission was, as he conceded, inadequate, but was, in my opinion, sufficient to obviate any recklessness on his part.

110. It is, however, open to the Court to find that Wang was negligent. A reasonable person in the position of Wang would have taken greater steps than Wang did in all of the circumstances to ascertain whether consent to remove vegetation was required (Secretary, Department of Climate Change, Energy, the Environment and Water v Vassallo [2026] NSWLEC 30 at [121]). In short, Wang “failed to undertake the level of enquiry that a reasonable person undertaking such works should have made”. An examination of the Council’s website alone was inadequate.

111. By acting negligently with respect to the carrying out of the tree works, the objective seriousness of each of the offences is increased.

Whether the offences were part of a planned or organised criminal activity (s 21A(2)(n) of the CSPA)

112. During the sentencing hearing, the issue of whether the three offences were part of a planned or organised criminal activity was debated.

113. There can be no doubt that Wang engaged in a level of ‘planning’ in the commission of the offences. For example:

(a) on 9 November 2023 Wang discussed the tree works with Wu and Liang; (b) the tree works were carried out over an extended length of time, with Wu providing Wang with “ongoing instructions”; (c) Wang sent Wu photographs of the tree works by way of updates; and (d) Wang had control over the hiring of the labour needed to complete the tree works.

114. Despite these indicia, the offences were nevertheless not part of a planned or organised criminal activity. In Secretary, Department of Planning and Environment v Aerotropolis Pty Ltd (No 2) [2025] NSWLEC 88, the director of the defendant instructed an employee to undertake vegetation clearing. His Honour made the following applicable observations (at [46]-[47]):

46 The prosecutor submits that the Court should find that the offences were committed with planning, and, as such, each of them fits within s 21A(2)(n) as a “planned … criminal activity” that persisted over a significant period of time, increasing the objective seriousness of the offending overall. The “planning” involved:

• Mr Varghese giving instructions to his employee, Mr Amjah, to carry out clearing of vegetation on the property throughout each charge period;

• Mr Amjah reporting back to Mr Varghese and discussing in detail the clearing to be undertaken, including how and where it should be carried out, and the type of vegetation to be removed;

• Mr Amjah sending Mr Varghese photographs showing the clearing after he had carried it out;

• Mr Varghese purchasing equipment and giving approval to Mr Amjah to purchase equipment to be used to clear the property (which involved slashing of groundcover), and the defendant Mr Amjah for such costs; and

• Mr Varghese visiting the property to Mr Amjah’s work.

47 Although there was a degree of “planning” involved in the offending conduct over a period of time and accepting that Mr Varghese and Mr Amjah organised and discussed in detail how the clearing was to be done, when it was to be done, what would be cleared, and by what means, I am not satisfied beyond reasonable doubt that this conduct went beyond the giving of instructions to clear the property without approval or consent as the wording of s 21A(2)(n) conveys “more than simply that the offence was planned” and it is only when the offence is part of a “more extensive criminal undertaking” that the provision is engaged: Fahs v R [2007] NSWCCA 26 at [21]; Williams v R [2010] NSWCCA 15 at [19]-[20]. As such, the aggravating factor in s 21A(2)(n) is not made out.

115. In the present case, there can be no doubt that Wang and Wu organised the carrying out of the tree works. But this was not enough to engage s 21A(2)(n) of the CSPA. There was no indication that the offences were part of a more extensive criminal undertaking (Tabbah v The Queen [2019] NSWCCA 324 at [80]-[84]; Moore v R [2016] NSWCCA 185 at [74] and Williams v R [2010] NSWCCA 15 at [19]-[21]).

116. By contrast, Environment Protection Authority v Hanna [2018] NSWLEC 80; (2018) 235 LGERA 114, concerned several offences committed in the course of the defendant dumping waste. The Chief Judge noted that s 21A(2)(n) had been engaged in that case because (at [152]):

152 …Mr Hanna's business of transporting and disposing of waste materials depended on avoiding paying fees for the disposal of waste. This was achieved by transporting waste to and depositing waste at places that could not be lawfully used as a waste facility. The offences committed by Mr Hanna, which are the subject of these proceedings, were carried out in the course of Mr Hanna's business. As the parties agreed, Mr Hanna's offending was part of a systematic business of collecting and depositing contaminated soil.

117. There is no suggestion that Wang’s offending was part of a systematic business of clearing vegetation without obtaining consent. I am not satisfied beyond reasonable doubt, therefore, that the commission of any of the three offences was undertaken as part of a planned or organised criminal activity, rather his conduct amounted to participation in unlawful conduct in the company of others.

Foreseeability of harm

118. The Council submitted that Wang could have reasonably foreseen the harm caused by the commission of the offences (Director-General, Department of Environment and Climate Change v Rae [2009] NSWLEC 137; (2009) 168 LGERA 121 at [50]).

119. It noted that at the time the offences were committed, Wang had five years of experience as a landscape gardener and the director of SGH. That is, Wang possessed knowledge and experience “well beyond that of a layperson in relation to vegetation removal and its potential consequences for environmental harm”.

120. The Council’s submission as to foreseeability should be accepted. The risk of environmental harm associated with the carrying out of the tree works was patent (Chief Executive of the Office of Environment and Heritage, Department of Premier and Cabinet v Turnbull [2014] NSWLEC 150 at [154]). I find that the harm caused by the commission of the offences was therefore reasonably foreseeable.

Control over the causes of the commission of the offences

121. There was disagreement between the parties as to how much control Wang had over the causes of the offences. The Council contended that there were several factors that indicated that Wang had exercised considerable control over “the activities which caused the environmental harm”, namely:

(a) Wang provided Wu with invoices for the tree works on 4 December 2023 via WeChat; (b) Wang engaged workers to undertake the tree works; (c) Wang informed Wu via WeChat of the number of casual labourers that attended the land each day to assist with the tree works; (d) Wang collected cash payments from Wu, which he then distributed to the workers that he had hired; (e) Wang directed the workers that he had hired; (f) Wang kept Wu up to date with the progress of the tree works on an almost daily basis; and (g) Wang referred Liang to Wu for the purpose of carrying out the tree works.

122. Wang argued that although he had actively participated in tree works, he was no more than an intermediary between Wu and Liang. Wang did not conceive of the vegetation clearing works, did not select the area to be cleared, did not select which trees were to be removed, did not make the decisions that resulted in environmental harm and did not stand to benefit from the commission of the offences. In short, Wang was not the architect of the tree works.

123. I do not accept Wang’s submissions. While I acknowledge that it was Wu, and not Wang, who gave instructions to remove the trees and was exercising supervision over the tree works, it was nevertheless Wang who, on the evidence before the Court, directed the persons who carried out the works (Georges River Council v WK Strong Pty Ltd [2019] NSWLEC 97 at [57] and Chief Executive, Office of Environment and Heritage v Murphy [2019] NSWLEC 210 at [74]).

124. At all times, it was open to Wang to refuse to undertake the tree works.

125. In these circumstances, I find that Wang had control over the acts giving rise to the commission of the offences. This elevates the objective seriousness of the offending.

The offences were not committed for financial gain (s 21A(2)(o) of the CSPA)

126. After some debate, the Council did not press its submission that the offences were committed for financial gain. While Wang was renumerated for his work in carrying out the tree works, not every act committed for payment is motivated by financial gain (Environment Protection Authority v John Michelin & Son Pty Ltd [2019] NSWLEC 88 at [170]). This is not a case where, for example, Wang committed the offences to increase the commercial value of the land (Rae at [11]-[13]). Accordingly, the fact that the tree works were carried out for monetary reward cannot be considered to be an aggravating factor.

Conclusion on the objective seriousness of the offences

127. Having regard to the matters discussed above, and in particular, the degree of environmental harm caused by the commission of the offences and Wang’s mental state at the time of their commission, the Court finds that the commission of each offence is at the lower end of the high range of objective seriousness.

Subjective Circumstances of Wang

128. A proportionate sentence requires the Court to account for any mitigating factors that are personal to Wang.

Previous convictions (s 21(3)(e) of the CSPA)

129. Wang does not have prior convictions for any environmental (or other) offence.

Good character (s 21A(3)(f) of the CSPA)

130. There is evidence that Wang has otherwise been a person of good character. Wang adduced character references from his wife, Xin Liu; his mother, Zhibin Kong; and his friend, Hao Gao. These references speak to Wang’s honesty, hard-working disposition, integrity and selflessness.

131. In the absence of any evidence or submission to the contrary, I accept that Wang is of good character.

Remorse shown by Wang (s 21A(3)(i) of the CSPA)

132. Remorse is a mitigating factor if evidence is provided that Wang has accepted responsibility for his actions, and that he acknowledges any injury, loss or damage caused by his unlawful conduct.

133. Wang has accepted responsibility for committing the offences. The first Wang affidavit contains statements to the effect that he accepts “full responsibility for my harmful and reckless behaviour” and that he is “very sorry for what has occurred”. These were supplemented by a written apology addressed to the Court. In the letter, Wang emphasises that he feels “very responsible for my involvement in causing” damage by carrying out the tree works.

134. Wang reiterated his remorse at the sentencing hearing (T4:05-10).

135. The Council submitted that Wang’s expressions of remorse should be given little weight because his evidence evinced a tendency to shift responsibility for the offending to Wu and Liang.

136. I do not accept that Wang seeks to limit his role to clearing branches, leaves and holding a ladder. In his statements of remorse, Wang acknowledges that Liang only carried out the tree works because of Wang’s involvement in the commission of the offences. Even if Wang was only clearing branches and holding the ladder for Liang, this caused the harm. The tree works were not possible without Wang’s actions.

137. Wang submitted that his description of the role played by persons such as Liang in the commission of the offences did not detract from his expressions of remorse. I agree.

138. I therefore find that Wang has expressed genuine and sincere remorse. It is appropriate that this mitigating factor is taken into account in determining the appropriate sentence to be imposed.

Prospects of rehabilitation and likelihood of reoffending (ss 21A(3)(h) and 21A(3)(g) of the CSPA)

139. Wang submitted that he has since changed his business practice. He contends that he has demonstrated “genuine rehabilitation” and is unlikely to reoffend.

140. Specifically, Wang notes that he no longer undertakes substantial vegetation clearing work. More importantly, Wang now “insists upon written confirmation that all necessary approvals have been obtained before accepting any work involving tree removal or substantial clearing”.

141. Further, Wang submitted that he has “ceased engaging casual labour” for clearing work.

142. I find that the likelihood of Wang offending is very low and that he has good prospects of rehabilitation. As stated above, Wang has no prior convictions and has expressed contrition and remorse.

Early guilty pleas (s 21A(3)(k) of the CSPA)

143. The Council accepted that Wang’s pleas of guilty were entered at the earliest possible opportunity. That is, they were entered in respect of each offence on the first occasion that the matters were before the Court. For this reason, Wang is entitled to the maximum discount of 25% as a reflection of the utilitarian value of those pleas to the criminal justice system (R v Thomson [2000] NSWCCA 309; (2000) 49 NSWLR 383 at [152]-[155]).

Assistance provided to the Council (s 21A(3)(m) of the CSPA)

144. The Council acknowledged that Wang has provided full cooperation to the Council in investigating and prosecuting the commission of the offences. He provided the Council with extensive documentary material, including payment records and WeChat communications.

145. In the third Wang affidavit, Wang deposes to having assisted the Council with other related criminal proceedings brought against Wu and arising out of the same clearing event. In oral submissions, the Council agreed that Wang’s cooperation in this regard had been of assistance to the Council.

146. This leaves, however, the question of whether Wang’s assistance in the related proceedings ought to result in a separate, specific and quantifiable discount. The parties did not address the Court on this issue. I am not inclined to apply such a discount because the Court was not furnished with any material about the related criminal prosecutions, including the summonses. In such circumstances, it is impossible to assess the true value of Wang’s assistance. Nevertheless, weight must be given to the additional assistance that Wang has provided to the Council in the related proceedings against Wu (Director-General, Department of Environment Climate Change and Water v Vin Heffernan Pty Ltd [2010] NSWLEC 200 at [55]-[59]).

Capacity to pay

147. Section 6 of the Fines Act 1996 requires the Court to consider Wang’s financial means in the exercise of its discretion to fix a monetary penalty:

6 Consideration of accused’s means to pay

In the exercise by a court of a discretion to fix the amount of any fine, the court is required to consider—

(a) such information regarding the means of the accused as is reasonably and practicably available to the court for consideration, and

(b) such other matters as, in the opinion of the court, are relevant to the fixing of that amount.

148. Wang submitted that his “financial circumstances are modest”. The following evidence was said to be corroborative of this position:

(a) Wang’s income tax returns for the 2024-2025 and 2022-2023 financial years showing gross income of $53,560.52 and $91,760.68, respectively; (b) a payslip from Cochlear for the period between 28 March to 10 April 2026, showing gross pay for this period of $2,161.64; (c) estimates that his wife, who is an accountant, makes approximately $60,000 yearly before tax; (d) monthly car loan repayments of $808.56; (e) monthly home loan repayments of $11,154 made to ANZ; (f) SGH’s first notice of assessment for the financial period 2023 to 2024, showing an amended assessed tax payable of $7,015.25; (g) SGH’s bank account statement for the period between 1 May and 1 June 2026, showing a closing balance of $12,950.84; (h) letters indicating that Wang’s parents attend medical appointments; and (i) a bank transfer of $800 for a mathematics tutor employed by Wang.

149. In providing these documents, Wang put to the Court that he had tried to give “as complete as a picture as a possible of how our household will be deeply impacted and will struggle to pay a large financial penalty if the Court imposes one”. However, it became apparent during cross-examination that this was not an accurate characterisation.

150. Wang was cross-examined as to why he had not provided to the Court his wife’s income tax returns; all of his personal bank account statements, including those of an offset account he admitted to orally; his credit card statements; details of a joint bank account; evidence of the value of his residential property; and SGH’s balance sheet. Wang stated that he was not aware that material of this kind was necessary.

151. During cross-examination Wang told the Court that he has an offset account with $100,000 deposited in it (T6:43-7:04). He also conceded that the car loan was a liability held by SGH, not him, and had been declared as a tax deduction (T10:22-33).

152. Wang estimated that his joint bank account with his wife held approximately $5,000 (T7:37-41). The value of equity in Wang’s house is more than $300,000 (T8:09-37).

153. In my view, the evidence adduced by Wang is incomplete and does not give an accurate or comprehensive picture of his financial position. I therefore do not consider that Wang has discharged his onus of proving on the balance of probabilities that he is unable to satisfy whatever monetary penalty the Court is likely to impose on him.

General and Specific Deterrence

154. The Court is required to account for both specific and general deterrence (Walden v Hensler [1987] HCA 54; (1987) 163 CLR 561 at 569). One of the purposes of imposing a sentence is to deter the offender themselves and others from committing similar offences. This purpose is found in s 3A(b) of the CSPA (Abdul-Rahman at [100]; Environment Protection Authority v Rands [2019] NSWLEC 23 at [161]; and Gittany Constructions Pty Ltd v Sutherland Shire Council [2006] NSWLEC 242; (2006) 145 LGERA 189 at [188]).

155. Both parties agreed that an element of general deterrence should be embedded in the determination of the final sentence to be imposed on Wang. This is to ensure that persons operating gardening businesses like SGH take all necessary measures to avoid removing vegetation unlawfully.

156. Where the parties differed, however, was with respect to the application of specific deterrence. Wang invited the Court to conclude that the purposes of specific deterrence have been substantially achieved through the Council’s investigation and the prosecution. The Council submitted that there was the need for specific deterrence because, given Wang’s position as the principal and director of SGH, there was a need to ensure that he carried out his business activities in compliance with all relevant planning controls.

157. There is force in the Council’s submission and it should be accepted. In coming to this conclusion, I am mindful of the observations made by the Court in Environment Protection Authority v Abbas (as known as Osama Abbas) [2021] NSWLEC 57 (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].

158. Wang continues to work as a gardener through the corporate vehicle of SGH. That fact, together with Wang’s state of mind at the time the offences were committed, mean that specific deterrence is a relevant consideration (City of Paramatta Council v Grand Epping Pty Ltd [2021] NSWLEC 70 at [158]-[160]).

Retribution and Denunciation

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

Even-handedness

160. The task of a sentencing court is to seek even-handedness in its imposition of a sentence (R v Oliver (1980) 7 A Crim R 174 at 177 and R v Visconti [1982] 2 NSWLR 104 at 107). Care must be taken in achieving consistency. Difficulties invariably arise when comparing the penalty in one case with that in another. That is because facts and circumstances can differ significantly between individual cases (Axer at 365; Hili v R [2010] HCA 45; (2010) 242 CLR 520 at [54]-[55]; Barbaro v The Queen [2014] HCA 2; (2014) 253 CLR 58 at [28] and Pham v R [2015] HCA 39; (2015) 256 CLR 550 at [28]-[32]).

161. A 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]).

162. In its written submissions, the Council provided the Court with brief summaries of comparative cases, the content of which was not cavilled with by Wang:

66. …in relation to the unlawful removal of trees, the Court may find of assistance the following decisions:

(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);

(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).

(g) City of Parramatta Council v Sydney Trees Excavation and Demolition Pty Ltd [2021] NSWLEC 71 (removal of 21 trees otherwise than in accordance with a development consent in a heritage conservation area and fined $55,000); and

(h) Hawkesbury City Council v Saed [2022] NSWLEC 34 (removal of 20 trees without development consent, 19 of which formed part of a critically endangered ecological community and fined $18,750).

67. Further, in relation to the removal of trees and the clearing of vegetation on public land, the court may find of assistance the following decisions:

(a) Cameron v Eurobodalla Shire Council [2006] NSWLEC 47 (lopping of native branches on council reserve adjoining property; local courts' fine of $10,000 confirmed on appeal);

(b) Manly Council v Taheri [2008] NSWLEC 314 (clearing of five large trees and an unspecified number of smaller trees from Council controlled harbour foreshore reserve and fined $35,000);

(c) Plath v Vaccount Pty Ltd t/as Tableland Timbers [2011] NSWLEC 202 (felling of 503 trees and damage to native vegetation in national park and fined $73,000); and

(d) Council of the City of Shoalhaven v Wilson [2015] NSWLEC 93 (removal of two trees on crown reserve adjacent to defendants' property and fined $8,400).

163. Wang sought to distinguish these authorities from the circumstances of this case in several ways. First, unlike this case, many of the landowners or developers undertook clearing activities to improve or develop their own land. Second, several of the cases involved individuals who exercised complete control over the decision to undertake the unlawful development. Third, a number of the decisions involved deliberate or calculated non-compliance with the planning regime. And fourth, many of the authorities involved offenders who obtained substantial commercial profits from their unlawful acts. The defendant’s submissions may be accepted in this regard.

164. I have taken the comparable cases into account having regard to their similarities and to their differences with the facts underlying the commission of the offences the subject of these proceedings.

Totality

165. The totality principle is a relevant consideration in determining an aggregate penalty for multiple offences (Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59 at 62 and 63; Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610 at [40]; Johnson v The Queen [2004] HCA 15; (2004) 205 ALR 346 at [18] and Water NSW v Barlow [2019] NSWLEC 30; (2019) 244 LGERA 1 at [111]-[112]).

166. The principle was discussed in the context of environmental offending, in Jindalee Road Wines Pty Ltd v Natural Resources Access Regulator [2025] NSWCCA 215; (2025) 118 NSWLR 620 (at [156]-[160] and [168]):

156. There may be flexibility in how to apply totality, but the principle itself is constant. The Court explained in Mill v The Queen (1988) 166 CLR 59; [1988] HCA 70 (per Wilson, Deane, Dawson, Toohey and Gaudron JJ) at 63 (adopting a statement from DA Thomas, Principles of Sentencing (2nd ed, 1979, Heinemann) at 56-57) as follows:

“The effect of the totality principle is to require a sentencer who has passed a series of sentences, each properly calculated in relation to the offence for which it is imposed and each properly made consecutive in accordance with the principles governing consecutive sentences, to review the aggregate sentence and consider whether the aggregate is ‘just and appropriate’. The principle has been stated many times in various forms: ‘when a number of offences are being dealt with and specific punishments in respect of them are being totted up to make a total, it is always necessary for the court to take a last look at the total just to see whether it looks wrong[‘]; ‘when ... cases of multiplicity of offences come before the court, the court must not content itself by doing the arithmetic and passing the sentence which the arithmetic produces. It must look at the totality of the criminal behaviour and ask itself what is the appropriate sentence for all the offences’.”

157. Totality is usually considered in the context of accumulation and concurrency of prison sentences but it has no lesser application in respect of fines (Camilleri’s Stock Feeds at 704, EPA v Barnes [2006] NSWCCA 246 at [43]-[50]).

158. In circumstances in which the offending involves multiple offences being committed by the one offender, it remains necessary for the sentencing judge, once the particular fine for each offence has been determined, to stand back and assess whether the total of the fines reflects the total criminality of all of the offending conduct.

159. In EPA v Barnes, the Court (per Kirby J, Mason P and Hoeben J agreeing) said at [49]:

“Dealing with these arguments, the totality principle clearly had application. Her Honour was sentencing for two offences. It was not simply a matter of fixing a fine for each offence. Her Honour was obliged to review the aggregate and consider whether it was just and appropriate, as a reflection of the criminality overall. That may require some moderation of the sentences imposed in respect of each offence.”

160. The principle of totality is at least in part based on the need to ensure that the sentences inflicted for individual crimes do not lead to a crushing result (Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26 (“Postiglione”) per McHugh J at 308). Of course, its application must also not detract from the necessity to ensure that the punishment imposed on an offender in respect of each offence is an appropriate reflection of the gravity of the offending conduct.

…

168. …the application of totality is not so limited. It may apply to offences committed over a long period at different places and even involving different victims. Again, this must be apparent from a wide range of cases including cases in which there may be multiple victims and the offences happened at different times and/or places. The Court is required to stand back and assess the total of all of the sentences to consider whether the total is just and appropriate.

167. The principles outlined in Jindalee are adopted and applied to the facts of these proceedings. The factual overlap between the three offences is substantial. The tree works — the acts underpinning the offences — took place at the same location over 12 days and involved the same physical acts by the same actors. The criminal conduct was largely comprised of a single effort, albeit over multiple days, to clear the land (Vassallo at [162]).

168. In addition, the harm caused by the Public Bushland offence is coextensive with that caused by the BV Map Area offence and DCP Tree offence.

169. I therefore find that the totality principle applies.

Costs

170. In the exercise of its sentencing discretion, 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 Ltd [2010] NSWLEC 170 at [50]).

171. The Court takes into consideration the fact that the Council is likely to be awarded its costs of the proceedings, as agreed or assessed, pursuant to ss 257B and 257G of the Criminal Procedure Act 1989.

172. The Council should also be awarded its investigation costs pursuant to s 248 of the Protection of the Environment Operations Act 1997 (“POEOA”), which has force in these proceedings by reason of s 9.56(2A) of the EPAA. The investigation costs total $11,660.

Appropriate Sentence

173. Having regard to the high level of objective seriousness of the commission of the offences mitigated by the subjective factors specific to Wang (including his assistance in the prosecution of Wu), together with the relevant comparable cases, I find that that the imposition of a monetary penalty is warranted for each offence as follows:

(a) in the Public Bushland offence $150,000. (b) in the DCP Tree offence $150,000; and (c) in the BV Map Area offence $150,000;

174. Each penalty must be discounted by 25% for the utilitarian value of Wang’s plea of guilty at the earliest available opportunity as follows:

(a) in the Public Bushland offence $112,500. (b) in the DCP Tree offence $112,500; and (c) in the BV Map Area offence $112,500;

175. After the application of the totality principle the penalties for the commission of the BV Map Area offence and DCP Tree offence should be further reduced to:

(a) DCP Tree offence $50,000; and (b) in the BV Map Area offence $25,000.

176. The total monetary penalty imposed on Wang for having committed the offences is therefore $187,500.

Payment of Penalties to the Council

177. Section 694(1) of the Local Government Act 1993 (“LGA”) provides as follows:

(1) Any penalty, fine or forfeiture imposed under any Act, or imposed for a contempt of a court order to remedy or restrain a breach of this Act or any other Act, and recovered in proceedings instituted by the council is—

(a) to be paid to the council, and

(b) to be allocated by the council to the council’s consolidated fund.

178. The Council seeks an order that the monetary penalty be paid to it pursuant to this provision.

179. The provision is a vehicle for councils to obtain the necessary resources to engage in regulatory activity that includes the prosecution of unlawful conduct arising out of non-compliance with the planning system (Hawkesbury City Council v Foster and Mushroom Composters Pty Ltd (1997) 97 LGERA 12 at 16). Although s 694(1) of the LGA operates without the need for an order of the Court, there may be benefit in the Court noting its operation in its orders imposing and applying the fine (RNA Building at [128]).

180. I consider it appropriate that the Court makes such an order.

Publication Order

181. In addition to any penalty imposed, the Court may make further orders as identified in s 250(1)(a) of the POEOA:

250 Additional orders

(1) Orders The court may do any one or more of the following—

(a) order the offender to take specified action to publicise the offence (including the circumstances of the offence) and its environmental and other consequences and any other orders made against the person,

182. It was accepted by the parties that it is appropriate to make a publication order in these proceedings. A publication order serves the purpose of general deterrence without the need to further increase the fines to effect that sentencing purpose (Vassallo at [167]-[168]).

183. The Council and Wang agreed on the form and content of the publication order, which is set out at annexure ‘D’ to these reasons.

Orders

184. In conformity with the reasons given above, the Court makes the following orders:

In proceedings 2025/409709 (Public Bushland offence)

1. Yi Wang is convicted of the offence against ss 4.2(1) and 9.50(3A) of the Environmental Planning and Assessment Act 1979 as charged;
2. a monetary penalty in the sum of $112,500 is imposed; and
3. Yi Wang is to pay the monetary penalty as ordered by the Court above to the Registrar of this Court, who is to pay the penalty when recovered to Lane Cove Council pursuant to s 694(1) of the Local Government Act 1993.

In proceedings 2025/409708 (DCP Tree offence)

1. Yi Wang is convicted of the offence against ss 4.3 and 9.50(3A) of the Environmental Planning and Assessment Act 1979 as charged;
2. a monetary penalty in the sum of $50,000 is imposed; and
3. Yi Wang is to pay the monetary penalty as ordered by the Court above to the Registrar of this Court, who is to pay the penalty when recovered to Lane Cove Council pursuant to s 694(1) of the Local Government Act 1993.

In proceedings 2025/409707 (BV Map Area offence)

1. Yi Wang is convicted of the offence against ss 4.3 and 9.50(3A) of the Environmental Planning and Assessment Act 1979 as charged;
2. a monetary penalty in the sum of $25,000 is imposed; and
3. Yi Wang is to pay the monetary penalty as ordered by the Court above to the Registrar of this Court, who is to pay the penalty when recovered to Lane Cove Council pursuant to s 694(1) of the Local Government Act 1993.

In proceedings 2025/409707, 2025/409708 and 2025/409709

1. an order pursuant to s 9.56(2A) of the Environmental Planning and Assessment Act 1979 that Yi Wang is, at his own expense, to:

(a) within 28 days cause a notice of a minimum size of 92 mm x 129 mm to be published within the first 12 pages of The Sydney Morning Herald, with the text of such notice to be as set out in accordance with annexure ‘D’ to these orders; (b) within 28 days cause a notice of a minimum size of 92 mm x 129 mm to be published within the first 12 pages of The Daily Telegraph, with the text of such notice to be as set out in accordance with annexure ‘D’ to these orders; and (c) within 28 days cause a notice of a minimum size of a quarter of a page to be published within the first 12 pages of The Village Observer, with the text of such notice to be as set out in accordance with annexure ‘D’ to these orders;

2. within seven days of the publication of the notices referred to above in order 10, Yi Wang must provide Lane Cove Council with a complete copy of the notices as published;
3. pursuant to ss 257B and 257G of the Criminal Procedure Act 1986, Yi Wang is to pay the costs of Lane Cove Council as agreed or assessed;
4. pursuant to s 248 of the Protection of the Environment Operations Act 1997 and s 9.56(2A) of the Environmental Planning and Assessment Act 1979, Yi Wang is to pay Lane Cove Council’s investigation costs in the sum of $11,660.

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Annexure 'A' (147 KB, pdf)

Annexure 'B' (178 KB, pdf)

Annexure 'C' (186 KB, pdf)

Annexure 'D' (7.67 KB, pdf)