Secretary, Department of Planning and Environment v Leda Manorstead Pty Ltd - [2021] NSWLEC 26 - NSWLEC 2020 case summary — Zoe

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Secretary, Department of Planning and Environment v Leda Manorstead Pty Ltd

[2021] NSWLEC 26

Land and Environment Court (NSW)|2020-10-22|Before: Pepper J

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Source facts

Court

Land and Environment Court (NSW)

Decision date

2020-10-22

Before

Pepper J

Source

Original judgment source is linked above.

Judgment (92 paragraphs)

[1]

ief Executive, Office of Environment and Heritage v Kyluck Pty Limited (No 4) [2014] NSWLEC 74; (2014) 212 LGERA 1 Chief Executive, Office of Environment and Heritage v Leda Management Services Pty Ltd [2013] NSWLEC 111 Chief Executive, Office of Environment and Heritage v Orica Pty Ltd; Environment Protection Authority v Orica Pty Ltd [2015] NSWLEC 109 Chief Executive, Office of Environment and Heritage v Rummery [2012] NSWLEC 271; (2012) 192 LGERA 314 Chin v Ryde City Council [2004] NSWCCA 167; (2004) 133 LGERA 312 Director-General Department of Planning & Infrastructure v Integra Coal Operations Pty Ltd [2012] NSWLEC 255; (2012) 192 LGERA 281 Director-General, Department of Environment and Climate Change v Hudson (No 2) [2015] NSWLEC 110 Environment Protection Authority v Attard [2000] NSWCCA 242 Environment Protection Authority v Baida Poultry Pty Ltd [2008] NSWLEC 280; (2008) 163 LGERA 71 Environment Protection Authority v Ballina Shire Council [2006] NSWLEC 289; (2006) 148 LGERA 278 Environment Protection Authority v Barnes [2006] NSWCCA 246 Environment Protection Authority v Crown in the Right of New South Wales (Office of Environment and Heritage) [2019] NSWLEC 66 Environment Protection Authority v Crown in the Right of New South Wales [2019] NSWLEC 178 Environment Protection Authority v Edward Gilder [2018] NSWLEC 119 Environment Protection Authority v GrainCorp Operations Limited [2019] NSWLEC 143 Environment Protection Authority v Koppers Carbon Materials & Chemicals Pty Ltd [2021] NSWLEC 12 Environment Protection Authority v M A Roche Group Pty Ltd [2015] NSWLEC 29 Environment Protection Authority v Rands [2019] NSWLEC 23 Environment Protection Authority v Ravensworth Operations Pty Ltd [2012] NSWLEC 222 Environment Protection Authority v Sydney Water Corporation [2019] NSWLEC 100 Environment Protection Authority v Sydney Water Corporation [2020] NSWLEC 153 Environment Protection Authority v Waste Recycling and Processing Corporation [2006] NSWLEC 419; (2006) 148 LGERA 299 Environment Protection Authority v Whitehaven Coal Mining Limited [2019] NSWLEC 27; (2019) 239 LGERA 31 Erector Group Pty Ltd v Burwood Council; Liverpool Developing Pty Ltd v Burwood Council [2018] NSWCCA 56; (2018) 232 LGERA 304 Filipowski v Fratelli D'Amato Srl [2000] NSWLEC 50; (2000) 108 LGERA 88 Filipowski v Hemina Holdings SA; Filipowski v Rajagopalan (No 2) [2009] NSWLEC 104 Gerondal v Eurobodalla Shire Council [2009] NSWLEC 160 Gittany Constructions Pty Ltd v Sutherland Shire Council [2006] NSWLEC 242; (2006) 145 LGERA 189 Gordon Plath of the Department of Environment and Climate Change v Fish [2010] NSWLEC 144; (2010) 179 LGERA 386 Harris v Harrison [2014] NSWCCA 84; (2014) 86 NSWLR 422 Hawkesbury City Council v Johnson; Hawkesbury City Council v Johnson Property Group Pty Limited [2008] NSWLEC 138 Hawkesbury City Council v Johnson; Hawkesbury City Council v Johnson Property Group Pty Limited (No 2) [2009] NSWLEC 6; (2009) 210 LGERA 34 Heatscape Pty Ltd v Mahoney (No 2) [2016] NSWLEC 45; (2016) 217 LGERA 332 Hili v R; Jones v R [2010] HCA 45; (2010) 242 CLR 520 Hoare v The Queen [1989] HCA 33; (1989) 167 CLR 348 Hoffenberg v The District Court of New South Wales [2010] NSWCA 142 Holroyd City Council v Khoury (No 3) [2011] NSWLEC 210 Hornsby Shire Council v Henlong Property Group Pty Ltd (No 2) [2019] NSWLEC 17 Hunter Water Board v State Rail Authority of New South Wales (No 2) (1992) 75 LGRA 22 Johnson v The Queen [2004] HCA 15; (2004) 78 ALJR 616 Jones v R [2010] HCA 45 Lake Macquarie City Council v Australian Native Landscapes Pty Ltd [2015] NSWLEC 92 Lavorato v The Queen [2012] NSWCCA 61; (2012) 82 NSWLR 568 Liverpool City Council v Leppington Pastoral Co Pty [2010] NSWLEC 170 Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 Matheson v Director of Public Prosecutions (NSW) [2008] NSWSC 550; (2008) 185 A Crim R 83 Mill v The Queen [1988] HCA 70; (1988) 166 CLR Minister for Planning v Coalpac Pty Ltd [2008] NSWLEC 271 Minister for Planning v Hunter Quarries Pty Ltd [2010] NSWLEC 246 Minister for Planning v Moolarben Coal Mines Pty Ltd [2010] NSWLEC 147; (2010) 175 LGERA 93 Mosman Municipal Council v Menai Excavations Pty Ltd [2002] NSWLEC 132; 122 LGERA 89 Mouawad v The Hills Shire Council [2013] NSWLEC 165; (2013) 199 LGERA 28 Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120 Newcastle City Council v Pace Farm Egg Products Pty Ltd [2002] NSWLEC 66 Parramatta City Council v Cheng [2010] NSWLEC 94 Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610 Pesic v Sutherland Shire Council [2019] NSWLEC 38 Pham v R [2015] HCA 39; (2015) 256 CLR 550 Pittwater Council v Scahill [2009] NSWLEC 12; (2009) 165 LGERA 289 Plath v Rawson [2009] NSWLEC 178; (2009) 170 LGERA 253 Plath v Vaccount Pty t/as Tableland Timbers [2011] NSWLEC 202 R v Baugh [1999] NSWCCA 131 R v Dodd (1991) 57 A Crim R 349 R v Harris [2007] NSWCCA 130; (2007) 171 A Crim R 267 R v MAK; R v MSK [2006] NSWCCA 381; (2006) 167 A Crim R 159 R v Nichols (1991) 57 A Crim R 391 R v Olbrich [1999] HCA 54; (1999) 199 CLR 270 R v Oliver (1980) 7 A Crim R 174 R v Paris [2001] NSWCCA 83 R v Piccin (No 2) [2001] NSWCCA 323 R v Thomson; R v Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383 R v Toohey [2019] NSWCCA 182 R v Visconti [1982] 2 NSWLR 104 R v Wheeler [2000] NSWCCA 34 Secretary, Department of Planning and Environment v AGL Upstream Infrastructure Investments Pty Ltd [2017] NSWLEC 2 Secretary, Department of Planning and Environment v Boggabri Coal Pty Limited [2014] NSWLEC 154 Secretary, Department of Planning and Environment v Charbon Coal Pty Ltd [2016] NSWLEC 106 Secretary, Department of Planning and Environment v Leda Manorstead Pty Ltd [2018] NSWLEC 114 Secretary, Department of Planning and Environment v Leda Manorstead Pty Ltd (No 4) [2019] NSWLEC 58 Secretary, Department of Planning and Environment v Leda Manorstead Pty Ltd (No 6) [2020] NSWLEC 68 Secretary, Department of Planning and Environment v Leda Manorstead Pty Ltd (No 5) [2020] NSWLEC 65 Secretary, Department of Planning, Industry and Environment v Auen Grain Pty Ltd; Merrywinebone Pty Ltd; Greentree; Harris (No 2) [2020] NSWLEC 126 Sydney South West Area Health Service v Stamoulis [2009] NSWCA 153 Terrey v Department of Environment, Climate Change and Water [2011] NSWLEC 141 The Queen v De Simoni [1981] HCA 31; (1981) 147 CLR 383 Thorneloe v Filipowski [2001] NSWCCA 213; (2001) 52 NSWLR 60 Veen v The Queen [1979] HCA 7; (1979) 143 CLR 458 Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465 Walden v Hensler [1987] HCA 54; (1987) 163 CLR 561 Water NSW v Barlow [2019] NSWLEC 30; (2019) 244 LGERA 1 Category: Sentence Parties: Secretary, Department of Planning and Environment (Prosecutor) Leda Manorstead Pty Ltd (Defendant) Representation: Counsel: J Single SC with A Garsia (Prosecutor) A Galasso SC with B Anniwell (Defendant)

[3]

Judgment TABLE OF CONTENTS TOPIC Paragraph No Leda is Granted a Project Approval to Develop Cobaki Estate [1] Leda Develops the Cobaki Estate [6] The Concept Approval [13] The Project Approval [18] Other Development Consents Relating to Cobaki Estate [41] Leda Breaches the Project Approval [45] Breach of Condition 21A (First and Second Summonses) [45] Breach of Condition 41 (Third Summons) [57] Works Commenced Without a CC (Fourth Summons) [63] The Statutory Framework Creating the Offences [76] Sentencing Principles [83] The Purposes of Sentencing [83] Statutory Matters Required to be Taken into Account in Sentencing [84] Objective Seriousness of the Offences [89] Nature of the Offences [92] Maximum Penalty [104] Leda's State of Mind [108] The First, Second and Third Summonses [109] Were the Offences Committed Recklessly or Negligently by Leda? [151] Fourth Summons [171] The Environmental Harm Occasioned or Likely to be Occasioned by the Commission of the Offences [172] The First and Second Summonses [176] Sediment Mobilisation [177] Did Additional Sediment Mobilise Offsite Because of the Offending? [180] How Much Sediment Mobilised Offsite During the Offence Periods? [191] RUSLE vs MUSLE Model [192] The Evidence of Bewsher [227] The Evidence of Shaw [233] The Evidence of Leda's Environmental Officers [248] The Biome Report [276] Conclusion on the Amount of Sediment Mobilised and Discharged by Reason of the Offending [280] What Was the Environmental Harm Caused by the Additional Sediment Flowing into the Surrounding Environment? [309] The Extent to Which Sediment Was Deposited into the Cobaki Creek and the Cobaki Broadwater [312] Evidence of Davis [313] Evidence of Matthew [320] Evidence of Bewsher [321] Evidence of Martens [333] Evidence of Shaw and the EOs [335] The Use of the Hydrosphere TSS Data and the Flow Modelling [339] Use of the Nearmap Aerial Images [347] Evidence from Core Samples [352] Reliance on Complaints about Water Quality [355] Conclusion on Deposition of Sediment in Cobaki Receiving Waters [357] Sediment Mobilised into the Saltmarsh [362] Impact of Sediment on the Ecology of the Surrounding Environment [363] Evidence of Davis [365] Evidence of Martens [387] Evidence of Warren [388] The Weight to be Placed on Warren's Evidence [398] Very Limited to No Weight Can be Given to Warren's Evidence [443] The Sediment Mobilisation and Deposition Caused Actual and Likely Harm on the Ecology of the Surrounding Environment [449] Dust and Air Quality [456] Findings in Relation to Dust and Air Quality [485] Summary of Conclusions on Environmental Harm for the First and Second Summons (Breach of Condition 21A) [490] Third Summons (Breach of Condition 41) [496] Fourth Summons (Commencing Work Without a CC) [505] Harm to the Integrity of the Planning System [506] Reasonable Foreseeability of the Harm Caused or Likely to be Caused to the Environment by the Commission of the Offences [511] Practical Measures Which Could Have Been Taken to Prevent or Mitigate the Environmental Harm [517] Control Over the Causes of the Commission of the Offences [545] Leda's Reasons for Committing the Offences [546] Conclusion on the Objective Seriousness of the Offences [548] Subjective Circumstances of Leda [550] The Harm to the Environment Was Not Substantial [552] The Offences Were Not Part of a Planned or Organised Criminal Activity [554] Prior Convictions [555] Assistance Provided to Authorities [560] Early Pleas of Guilty [561] Contrition and Remorse [568] Likelihood of Reoffending and Prospects of Rehabilitation [576] Leda is of Good Character [577] The Offence Could Have Been Prosecuted in the Local Court [578] General and Specific Deterrence [579] Retribution and Denunciation [589] Consistency in Sentencing [590] Financial Means of Leda [602] Costs [603] Totality Principle [612] Application of Sections 10 and 10A of the CSPA [622] First and Second Summonses [635] Third Summons [645] Fourth Summons [649] Appropriate Sentence [652] Publication Order [657] Orders [670] Annexure A

[7]

The Project Approval

On 28 February 2011 the Deputy Director-General, Development Assessment and Systems Performance of the Department of Planning, as delegate of the Minister, granted Leda Project Approval MP08_0200 under s 75J of the EPAA ("the Project Approval").
The Project Approval approved the subdivision of the entire Cobaki Estate into seven lots and, relevantly for present purposes, it approved staged bulk earthworks to be carried out in the COS to "create the central open space, riparian corridor, structured open space, and future stormwater drainage area".
At all relevant times, Leda was the person carrying out the development approved under the Project Approval for the purposes of s 75D of the EPAA.
On 30 May 2011 the Council granted DA 10/0800 in respect of the Cobaki Estate subdivision of Precincts 1 and 2 ("DA 10/0800"). DA 10/0800 permitted cut and fill within Precincts 1 and 2 to be used elsewhere on the Cobaki Estate.
The Project Approval was modified three times. In February 2013 Leda applied to modify the Project Approval for the specific purpose of borrowing fill from Precincts 1 and 2 for use in the COS ("MOD1"). Leda's Cobaki Estate Development Precincts 1 & 2 Bulk Earthworks Environmental Assessment Report (Revision 1) dated February 2013 prepared by SMEC Urban Consulting which accompanied the modification application, indicated that the borrowing of fill from those precincts for use in the COS had commenced prior to the modification having been sought.
Relevantly for present purposes, MOD1 added a new condition 21A and deleted and replaced condition 41 of the Project Approval to enable bulk earthworks to be carried out not just within the COS, but also within Precincts 1 and 2 "for the sole purpose of the winning of fill to be placed in the central open space area".
As modified by MOD1, condition 21A read as follows: 21A. Bulk Earthworks a. The Proponent shall submit the following plans and specifications with an application for construction certificate for the bulk earthworks in the borrow areas within Precincts 1 and 2: i. Natural and finished development levels (spot levels and contours) clearly detailed with a legible scale; ii. Sediment and erosion control plans; iii. Evidence that the works will be undertaken under geotechnical supervision by a registered Geotechnical Engineer; iv. All temporary and permanent batter slopes will be appropriately stabilised by way of grass seeding or hydromulch immediately after completion; and, v. An earthworks phasing diagram that defines maximum exposed areas. b. Bulk earthworks for the site are to be limited to a maximum exposed disturbed area (that has not been permanently vegetated) not exceeding a maximum of 5ha at any time to reduce exposed areas, unless otherwise approved by the Director-General. c. Works are to be topsoiled, mulched and seeded immediately after completion to protect the exposed areas from water and wind erosion.
Sometime in May 2013 Hughes was involved in a discussion about condition 21A b but he never saw a copy of it.
By letter dated 19 June 2013, the Director-General approved an exceedance of the maximum exposed disturbed area specified in condition 21A b of the Project Approval by up to 0.59 ha in stages 4 and 5, thereby increasing the maximum area for the purposes of condition 21A from 5 to 5.59 ha.
The circumstances in which the 5 ha limit under condition 21A b was increased to 5.59 ha are described in correspondence between Grant Epple, the Project Manager for Leda Developments Pty Ltd ("Leda Developments"), and Sally Munk, a Senior Planner in the Department, in the period from 12 to 13 June 2013.
Shortly after MOD1 was granted, on 12 June 2013 Epple wrote to Munk, submitting for approval an Earthworks Phasing Plan prepared by Yeats Consulting Engineers ("Yeats Consulting") (Drawing No YC0229-1E1-SK15 Rev A) ("the Earthworks Phasing Plan").
Munk replied by email the next day querying whether the Earthworks Phasing Plan meant that there would be exceedances of the 5 ha limit. She stated that options should be provided for sequencing the earthworks to reduce the exposed area.
Epple replied the same day attaching an additional Yeats Consulting document entitled Earthworks Phasing and Sequencing Plan. The document showed a proposed sequence of cutting and filling and intermittent intervening remediation, with a progressive tally of disturbed areas under the column "Progressive Exposed Area". It detailed a progressive total of exposed areas in three instances exceeding 5 ha, with the highest total being 5.50 ha.
Five days later, on 19 June 2013, Heather Warton, as delegate of the Director-General, expressly referred to this email exchange in the formal notification of approval of an increase of the limit under condition 21A b from 5 ha to 5.59 ha.
On 21 June 2013, CC 107 authorising the commencement of MP08_0200 was issued by a private certifying authority ("PCA"), Michael Shaw. The approved stamped documents attached to CC 107 included the Earthworks Phasing Plan and the Earthworks Phasing and Sequencing Plan. Plans endorsed under CC 107 gave approval for 4,900m³ of material to be obtained from Precinct 9 for the filling of Cobaki Parkway South.
The Project Approval was further modified on 3 April 2014, by way of the determination of a modification application which included a request by Leda to be permitted to win fill from borrow areas in Precincts 9 and 11 for use in the COS ("MOD2").
On 3 April 2014 condition 21A was modified by MOD2. Relevantly, Condition 21A a was amended to read as follows: a. The Proponent shall submit the following plans and specifications with an application for construction certificate for the bulk earthworks in the Borrow Areas within Precincts 1, 2, 9 and 11.
MOD2 also inserted references to Precincts 9 and 11 in condition 41 of the Project Approval.
In July 2014 Leda applied for a third modification of the Project Approval ("MOD3"), which sought to expand the approved Precinct 9 borrow area and the approved fill areas to include the SSPP. There was no alteration to condition 21A. However, condition 41 was modified to refer to the placement of fill within the SSPP to carry out bulk earthworks for the sole purpose of winning fill to be placed in that area. The list of approved plans was expanded to include the filling of the SSPP and the cutting of the expanded Precinct 9 borrow area.
As referred to in this judgment, the Project Approval comprises that as modified by MODs 1, 2, and 3.
The COS is defined in Part C of Schedule 1 of the Project Approval as: Central Open Space Area means the area generally identified by the Cover Sheet and Locality Plan, Revision B prepared by Yeats Consulting Engineers and dated 17 September 2010.
As modified, condition 41 of Schedule 2 of the Project Approval is in the following terms: 41. Earthworks - Limits of Approval a. No bulk earthworks are to be undertaken outside of the COS (as defined in Schedule 1 Part C of this approval) b. Notwithstanding a.) above, bulk earthworks may also be carried out in Precincts 1, 2, 9 and 11 for the sole purpose of the winning of fill to be placed in the Central Open Space Area and the SSPP shown on bulk earthworks drawings specified in Condition 3. c. Notwithstanding a.) and b.) above, fill material required for the COS sourced from elsewhere on/off the site requires separate development approval, unless otherwise approved by the Director-General. d. Retaining walls and fire trail profiles identified on bulk earthworks drawings YCO229-1E1-ES04 (Rev D), YCO229-1E1-ES05 (Rev A), YCO229-1E1-ES06 (Rev A), YCO229-1E1-ES07 (Rev A) are not approved. Note: Retaining wall height and fire trail profiles within Precincts 1 and 2 shall be submitted to council for approval in accordance with the conditions of development approval DA10/0800.
At all relevant times, Van Rij had a copy of the conditions of the Project Approval.

[9]

Breach of Condition 21A (First and Second Summonses)

In Leda (No 4) the Court determined that the "site" for the purposes of condition 21A b was confined to the areas the subject of Part Two of the Project Approval, namely, the COS, Precincts 1 and 2, and subsequently under MOD2, Precincts 9 and 11, and then under MOD3, the SSPP (at [99] and [125]-[128]).
The expression "bulk earthworks" in condition 21A was construed to include: 1. temporary stockpiles of earthen material excavated in bulk (at [139]); 2. the movement of large quantities of earth in the course of cutting and filling (at [304]); and 3. earth which is moved to create subsoil layers or to create the topsoil layer of a filled area (at [304]).
The expression "maximum exposed disturbed area (that has not been permanently vegetated)" in condition 21A b was interpreted in the following manner (see Leda (No 4)): 1. it includes earth displaced by bulk earthworks that is exposed to the atmosphere (at [150]); 2. an "exposed disturbed area" includes both cutting and filling activities (at [152]); 3. an "exposed disturbed area" is an area that has been exposed and disturbed by bulk earthworks until such time as it is "permanently vegetated" (at 153]); 4. an area that is "permanently vegetated" will cease to be "exposed" if the vegetation is sufficiently well developed to provide ground cover so that the soil is no longer exposed to wind and rain and ceases to be an area that can potentially generate dust and sediment runoff (at [154]); 5. what constitutes "permanently vegetated" will be a question of fact in all of the circumstances (at [155]); 6. the presence of newly sprouted or unsuccessfully established grass, or a sparse cover of weeds, is more likely to be included in the expression "exposed disturbed area" because the area is not "permanently vegetated" (at [155]); and 7. the expression "maximum exposed disturbed area" in condition 21A b includes any re-disturbed areas if the re-working was due to activity undertaken under the Project Approval (at [209]).
In Leda (No 4) the Court held that condition 21A b could not be circumvented by an assertion that bulk earthworks being carried out in the areas the subject of the Project Approval were being undertaken pursuant to historical consents (at [209]).
The bulk earthworks carried out on the site during the charge periods specified in the first summons and second summons were undertaken in furtherance of the Project Approval and those earthworks were required to be in compliance with condition 21A b (at [280]).
Leda exceeded the 5.59 ha limit in condition 21A b. The estimated total area of the COS, SSPP, and Precincts 1, 2, 9, and 11 exposed and disturbed since 21 June 2013 was (at [287]-[290]): 1. as at 21 April 2014, between 47.6 and 63.91 ha; 2. as at 25 June 2014, between 52.6 and 65.65 ha; 3. as at 6 October 2014, between 55.4 and 85 ha; 4. as at 9 April 2015, between 54 and 71.42 ha; 5. as at 18 May 2016, between 46.9 and 68.27 ha; and 6. as at either 24 February or 7 March 2017, between 40.3 and 62.59 ha.
The first summons charged Leda as follows: 1. An order that the Defendant, Leda Manorstead Pty Ltd (ACN 058 793 114) of Registered Office Level 11, 5 Hunter Street, Sydney in the State of New South Wales, appear before a judge of the Court to answer to the charge that, on and from about 21 April 2014 and continuing to 30 July 2015, at Cobaki Lakes in the State of New South Wales, it committed an offence against section 125(1) of the Environmental Planning and Assessment Act 1979 (Act) in that, in carrying out development that is a project approved under Part 3A of the Act, the Defendant did not comply with a condition to which the project approval was subject, contrary to section 75D(2) of the Act. PARTICULARS The Part 3A Approval Project Approval MP08_0200 as modified from time to time (Project Approval). Further particulars of the modifications to the Project Approval are contained in the affidavit of Stewart McLachlan sworn 19 May 2017 at paragraph 7. The development being carried out by the Defendant The project described in the Project Approval (Cobaki Estate Project). Condition of the Project Approval the Defendant did not comply with Condition 21A of Schedule 2 to the Project Approval. Manner of breach At all relevant times, the Defendant, by itself, its servants and agents, was carrying out the development comprising the Cobaki Estate Project pursuant to the Project Approval. The Defendant, in carrying out the development, did not comply with Condition 21A of Schedule 2 to the Project Approval in that bulk earthworks for the site during the charge period continuously exceeded the maximum exposed disturbed area (that had not been permanently vegetated) of 5 hectares and was not otherwise approved by the Director General. Date on which evidence of the offence first came to the attention of an investigation officer Evidence of the offence first came to the attention of an investigation officer within the meaning of s 127(5A) of the Act, namely Stewart McLachlan, on or about 2 July 2015.
As amended, the second summons was in the following terms: 1. An order that the Defendant, Leda Manorstead Pty Ltd (ACN 058 793 114) of Registered Office Level 11, 5 Hunter Street, Sydney in the State of New South Wales, appear before a judge of the Court to answer to the charge that, on and from 31 July 2015 and continuing to 7 March 2017, at Cobaki Lakes in the State of New South Wales, it committed an offence against section 125(1) of the Environmental Planning and Assessment Act 1979 (Act) in that, in carrying out development that is a project approved under Part 3A of the Act, the Defendant did not comply with a condition to which the project approval was subject, contrary to section 75D(2) of the Act. PARTICULARS The Part 3A Approval Project Approval MP08_0200 as modified from time to time (Project Approval). Further particulars of the modifications to the Project Approval are contained in the affidavit of Stewart McLachlan sworn 19 May 2017 at paragraph 7. The development being carried out by the Defendant The project described in the Project Approval (Cobaki Estate Project). Condition of the Project Approval the Defendant did not comply with Condition 21A of Schedule 2 to the Project Approval. Manner of breach At all relevant times, the Defendant, by itself, its servants and agents, was carrying out the development comprising the Cobaki Estate Project pursuant to the Project Approval. The Defendant, in carrying out the development did not comply with Condition 21A of Schedule 2 to the Project Approval in that bulk earthworks for the site during the charge period continuously exceeded the maximum exposed disturbed area (that had not been permanently vegetated) of 5 hectares and was not otherwise approved by the Director General. This is a Tier 2 offence under s 125B of the Act. The prosecutor alleges that the said offence was committed recklessly or in the alternative negligently.
There are several observations to be made about the first and second summonses. First, together they charge a contravention by Leda of condition 21A b of Sch 2 of the Project Approval over a nominated charge period, namely, in the first summons, "on and from about 21 April 2014 and continuing to 30 July 2015"; and in the second summons, "on and from 31 July 2015 and continuing to 7 March 2017". The charge periods in the first and second summonses are therefore temporally contiguous and represent, in effect, a single period of continuous criminal activity.
Second, a separate offence was charged for the period on and from 31 July 2015 under the second summons because that was the date on which material amendments to the EPAA came into force creating the three tier sentencing regime by the introduction of ss 125A to 125C of that Act. This materially altered the penalty provision previously applicable to the entirety of the charge period in the first summons.
Third, originally the second summons included particulars of the matters specified in s 125A(1)(a) and (b) of the EPAA, namely, that the offence was committed intentionally and was likely to cause significant harm to the environment. In Secretary, Department of Planning and Environment v Leda Manorstead Pty Ltd [2018] NSWLEC 114, Pain J held that those two matters were not elements of the offence but were particulars relevant only to sentence. Consequently, her Honour ordered that no evidence was to be adduced in respect of s 125A(1)(a) and (b) at any hearing on liability (at [78]).
Prior to the commencement of the sentence hearing, by consent, the second summons was amended to delete any reference to intention and that the offence was likely to cause significant harm to the environment. The amendment had the effect of rendering otiose the hearing before Pain J in Leda.

[10]

Breach of Condition 41 (Third Summons)

On 2 July 2015 an earthen mound of topsoil east of Cobaki Parkway was created in connection with roadworks undertaken pursuant to a different consent granted around 2006 ("the earthen mound"). It was approximately two metres high, had long since naturally revegetated, and had become part of the existing landscape surrounding the Project Approval site.
The earthen mound was located in an area identified as Wallum Froglet forage habitat in the Cobaki Estate Environmental Assessment Report Southern Special Purpose Precinct (SSPP) Bulk Earthworks dated July 2014.
In September 2015 Leda took topsoil from the earthen mound and placed it in the SSPP for a structural purpose, namely, as preload. The topsoil was moved from the earthen mound for an engineering purpose and not for the purpose of mere topsoiling and rehabilitation. In doing so, condition 41 of the Project Approval was breached.
Removal of the earthen mound created two areas of disturbance: 1. one approximately 1.2 ha in size; and 2. the other approximately 0.5 ha in size.
The works were outside the areas of approved work in condition 41 of the Project Approval.
The third summons stated that: 1. An order that the Defendant, Leda Manorstead Pty Ltd (ACN 058 793 114) of Registered Office Level 11, 5 Hunter Street, Sydney in the State of New South Wales, appear before a judge of the Court to answer to the charge that, between about 1 September 2015 and about 2 November 2015, at Cobaki Lakes in the State of New South Wales, it committed an offence against section 125(1) of the Environmental Planning and Assessment Act 1979 (Act) in that, in carrying out development that is a project approved under Part 3A of the Act, the Defendant did not comply with a condition to which the project approval was subject, contrary to section 75D(2) of the Act. PARTICULARS The Part 3A Approval Project Approval MP08_0200 as modified from time to time (Project Approval). Further particulars of the modifications to the Project Approval are contained in the affidavit of Stewart McLachlan sworn 19 May 2017 at paragraph 7. The development being carried out by the Defendant The project described in the Project Approval (Cobaki Estate Project). Condition of the Project Approval the Defendant did not comply with Condition 41 of Schedule 2 to the Project Approval. Manner of breach At all relevant times, the Defendant, by itself, its servants and agents, was carrying out the development comprising the Cobaki Estate Project pursuant to the Project Approval. The Defendant, in carrying out the development did not comply with Condition 41 of Schedule 2 to the Project Approval in that bulk earthworks in the nature of excavation and removal of an earthen mound and associated works were undertaken outside of the areas approved under Condition 41, namely in an area to the east of the Cobaki Parkway, near the intersection of Sandy Lane.

[11]

Works Commenced Without a CC (Fourth Summons)

DA 10/0800 was granted by the Council on 30 May 2011. At the relevant time, Leda was carrying out the subdivision of Precinct 2 pursuant to that consent.
At some point between 14 January and 23 February 2016, Leda commenced subdivision works under DA 10/0800 by filling land in Precinct 2. However, no CC had been issued relating to DA 10/0800 for the commencement of the subdivision works under that approval.
On 10 March 2016 Shaw conducted an inspection of the site. During that inspection he observed that fill works had occurred in Precinct 2. Shaw said to Yeats "in my opinion, these works are unauthorised and contrary to MP08_200 and approved CC107".
On 11 March 2016 Shaw wrote an email to Leda (among others) stating that: 1. he had inspected the site on 10 March 2016 and was able to confirm that fill works had occurred in the northern end of Precinct 2 as depicted in the sketch and photographs attached to the email; 2. his review of MOD2 of the Project Approval permitted the "winning of material" from Precincts 1 and 2, not filling; 3. his review of CC 107 did not permit the works in question and, on that basis, the works were unauthorised; 4. Leda was instructed to install a silt fence at the base of Precinct 2, fill zone batters to protect the area, review the nearby waterway, and have Biome Consulting Pty Ltd ("Biome") inspect the area and review the need for any further sediment/erosion control measures; and 5. Leda was directed to stop any further filling in the northern area of Precinct 2 and to temporarily fence off the area.
Less than a week after Shaw's email, on 17 March 2016, Leda admitted the commission of the offence. Van Rij wrote a letter to Stuart McLachlan, Compliance Officer at the Department of Planning and Environment ("the Department"), on behalf of Leda. Enclosed was a letter to Shaw of the same date advising that unauthorised filling of Precinct 2 had taken place.
In that letter, Leda admited that the works in Precinct 2 had taken place adjacent to, but outside of, the approved works areas.
On 29 April 2016, Shaw conducted another inspection of the site. He observed that: 1. there were no works occurring in Precinct 2; 2. the unauthorised fill area of Precinct 2 was protected with a downstream silt fence, but the upstream bund had yet to be installed; and 3. there were no signs of excessive construction sediment downstream of the site.
On 2 May 2016 Shaw wrote a report to Dale Scotcher at Leda setting out his findings from the inspection on 29 April 2016. Shaw noted that: ● Brad from Biome summarised results of recent site wide S&E control check; ● Leda confirmed commitment to implement measures.
On 17 May 2017 McLachlan received a map plotting the GPS waypoints that he had recorded of the fill area in Precinct 2 observed when he had inspected the site on 23 February 2016. The area of fill covered an area of 2.9 ha.
On 25 November 2016 McLachlan issued a notice to Leda pursuant to s 119J of the EPAA requesting documents relevant to the Department's investigation ("s 119J notice"). On 8 December 2016 Leda's lawyers wrote to McLachlan undertaking to provide all documents that it was able to identify by 16 December 2016.
The s 119J notice was reissued to Leda on 14 December 2016, with compliance required by 28 February 2017. Leda provided some of its documents on 16 December 2016 with the balance given on 14 and 28 February 2017.
Leda pleaded guilty to the offence on 25 May 2017.
The fourth summons set out the contravention of s 125(1) of the EPAA to which Leda had earlier pleaded guilty: 1. An order that the Defendant, Leda Manorstead Pty Ltd (ACN 058 793 114) of Registered Office Level 11, 5 Hunter Street, Sydney in the State of New South Wales, appear before a judge of the Court to answer to the charge that, between about 1 December 2015 and about 10 March 2016, at Cobaki Lakes in the State of New South Wales, it committed an offence against section 125(1) of the Environmental Planning and Assessment Act 1979 (Act) in that, it commenced subdivision work in accordance with a development consent without a construction certificate having been issued by the consent authority, the Council or an accredited certified, contrary to section 81A(4)(a) of the Act. PARTICULARS Subdivision work commenced without a construction certificate The filling of land and associated earthworks as part of the subdivision work in Precinct 2 of the Cobaki Estate as referred to in the Development Consent (particularised below). Development consent in accordance with which subdivision work was undertaken Development consent DA 10/0800 granted by Tweed Shire Council (decision made by Joint Regional Planning Panel) the subject of the Council's Notice of Determination dated 30 May 2011 (Development Consent). Manner of breach At all relevant times, the Defendant, by itself, its servants and agents, was carrying out the development the Cobaki Estate, including the subdivision of Precinct 2 pursuant to the Development Consent. No construction certificate had been issued at the time the said subdivision work was commenced, or at any time up to at least September 2016.

[12]

The Statutory Framework Creating the Offences

From the outset it should be noted that Leda was convicted of three offences in contravention of s 125(1) of the EPAA concerning breaches of conditions 21A b and 41 of the Project Approval contrary to s 75D of the EPAA, the latter of which states that a person carrying out a Pt 3A project must comply with any conditions to which the project approval is subject. Part 3A of the EPAA was repealed effective 1 October 2011. However, the relevant provisions of Pt 3A of the EPAA continued to apply at all relevant times to the project by reason of the savings and transitional provisions contained in Sch 6A of that Act (see, in particular, cls 2 and 3 of Sch 6A of the EPAA).
Section 125(1) of the EPAA provides that: 125 Offences against this Act and the regulations (1) Where any matter or thing is by or under this Act, other than by or under the regulations, directed or forbidden to be done, or where the Minister, the Secretary, a council or any other person is authorised by or under this Act, other than by or under the regulations, to direct any matter or thing to be done, or to forbid any matter or thing to be done, and that matter or thing if so directed to be done remains undone, or if so forbidden to be done is done, a person offending against that direction or prohibition shall be guilty of an offence against this Act.
Pursuant to s 125(1) of the EPAA compliance with any condition to which an approval is granted under Pt 3A of the Act is a matter or thing that is directed to be done by or under the Act. Consequently, if a person does not comply with that direction, the person commits an offence as prescribed by s 125(1).
Section 125B of the EPAA states: 125B Maximum penalties for offences against Act: Tier 2 (1) This section applies to an offence against this Act under section 125 (1), other than an offence to which section 125A applies or an offence for which a tier 3 maximum penalty applies. (2) A person who is guilty of an offence to which this section applies is liable to a tier 2 maximum penalty, being a penalty not exceeding: (a) in the case of a corporation: (i) $2 million, and (ii) for a continuing offence - a further $20,000 for each day the offence continues…
Section 126 of the EPAA relevantly provides as follows: 126 Penalties (1) A person guilty of an offence against this Act shall, for every such offence, be liable to the penalty expressly imposed and if no penalty is so imposed to a penalty not exceeding 10,000 penalty units and to a further daily penalty not exceeding 1,000 penalty units.
Section 75D of the EPAA is in the following terms: 75D Minister's approval required for projects (1) A person is not to carry out development that is a project to which this Part applies unless the Minister has approved of the carrying out of the project under this Part. (2) The person is to comply with any conditions to which such an approval is subject.
Section 81A(4) of the EPAA relevantly states: 81A Effects of development consents and commencement of development (4) Subdivision work in accordance with a development consent must not be commenced until: (a) a construction certificate for the subdivision work has been issued by the consent authority, the council (if the council is not the consent authority) or an accredited certifier, and (b) the person having the benefit of the development consent has appointed a principal certifying authority for the subdivision work, and (b1) the principal certifying authority has, no later than 2 days before the subdivision work commences: (i) notified the consent authority and the council (if the council is not the consent authority) of his or her appointment, and (ii) notified the person having the benefit of the development consent of any critical stage inspections and other inspections that are to be carried out in respect of the subdivision work, and (c) the person having the benefit of the development consent has given at least 2 days' notice to the council, and the principal certifying authority if that is not the council, of the person's intention to commence the subdivision work.

[14]

Statutory Matters Required to be Taken into Account in Sentencing

Subsections 21A(2) and (3) of the CSPA set out the aggravating and mitigating factors that the Court must consider when sentencing an offender. Relevant to the facts of this case they are as follows: 21A Aggravating, mitigating and other factors in sentencing (2) Aggravating factors The aggravating factors to be taken into account in determining the appropriate sentence for an offence are as follows: … (d) the offender has a record of previous convictions (particularly if the offender is being sentenced for a serious personal violence offence and has a record of previous convictions for serious personal violence offences), … (g) the injury, emotional harm, loss or damage caused by the offence was substantial, … (o) the offence was committed for financial gain… The court is not to have additional regard to any such aggravating factor in sentencing if it is an element of the offence. (3) Mitigating factors The mitigating factors to be taken into account in determining the appropriate sentence for an offence are as follows: (a) the injury, emotional harm, loss or damage caused by the offence was not substantial, (b) the offence 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)…
Further, s 21A(4) of the CSPA states that "the court is not to have regard to any such aggravating or mitigating factor in sentencing if it would be contrary to any Act or rule of law to do so".
A sentencing court may not take facts into account adverse to the interests of the offender unless those facts have been established beyond reasonable doubt. However, if there are circumstances in favour of the offender that the Court proposes to take into account, it is sufficient if those circumstances are established on the balance of probabilities (R v Olbrich [1999] HCA 54; (1999) 199 CLR 270 at 281).
The appropriate sentence to be imposed on Leda is to be determined by an instinctive synthesis of the relevant objective and subjective circumstances of the commission of the offences (Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 at [35]-[39], [50]-[84] and [136]-[139]).
Importantly, the sentence to be imposed on Leda for its commission of the offences must be proportionate to both the objective seriousness or gravity of the offence and Leda's subjective circumstances (Veen v The Queen [1979] HCA 7; (1979) 143 CLR 458 at 490 and Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465 at 472).

[16]

Nature of the Offences

The nature and purpose of the provision that has been contravened, and its place in the statutory scheme, are illustrative of the objective seriousness of an environmental offence (Bentley v BGP Properties Pty Limited [2006] NSWLEC 34; (2006) 145 LGERA 234 at [168]-[169]; Plath v Rawson [2009] NSWLEC 178; (2009) 170 LGERA 253 at [49]; and Chief Executive, Office of Environment and Heritage v Orica Pty Ltd; Environment Protection Authority v Orica Pty Ltd [2015] NSWLEC 109 at [59]).
The objects of the EPAA identify the purpose of the offence provision as follows: 5 Objects The objects of this Act are: (a) to encourage: (i) the proper management, development and conservation of natural and artificial resources, including agricultural land, natural areas, forests, minerals, water, cities, towns and villages for the purpose of promoting the social and economic welfare of the community and a better environment, (ii) the promotion and co-ordination of the orderly and economic use and development of land, (iii) the protection, provision and co-ordination of communication and utility services, (iv) the provision of land for public purposes, (v) the provision and co-ordination of community services and facilities, and (vi) the protection of the environment, including the protection and conservation of native animals and plants, including threatened species, populations and ecological communities, and their habitats, and (vii) ecologically sustainable development, and (viii) the provision and maintenance of affordable housing, and (b) to promote the sharing of the responsibility for environmental planning between the different levels of government in the State, and (c) to provide increased opportunity for public involvement and participation in environmental planning and assessment.
The nature of the offence of failing to comply with a condition of an approval under s 76D(2) of the EPAA was, albeit by analogy with the offence of carrying out development without consent contrary to s 76A(1) of the EPAA, articulated by Preston J in Secretary, Department of Planning and Environment v Boggabri Coal Pty Limited [2014] NSWLEC 154 (at [17]-[19]): 17. One of the principal means by which these objects are achieved is by the Act controlling the carrying out of development depending on its likely impact on the environment. Environmental planning instruments specify the purposes for which development may be carried out without development consent or only with development consent and for which development is prohibited. A person wishing to carry out development that may be carried out only with development consent must lodge a development application with the relevant consent authority for development consent to carry out that development. Depending on the type of development, the development application will need to include information or be accompanied by documents that assess the impacts, including environmental impacts, of the development and the means to mitigate these impacts. Again, depending on the type of development, there are differing procedures for public notification and public participation, including making submissions objecting to the development in the development application. There may need to be consultation with other regulatory authorities. The consent authority, in determining the development application, is required to consider a range of matters, including the impacts of the proposed development on the environment, and to impose relevant and appropriate conditions of consent. Again, depending on the type of development, there are different rights of appeal against a decision of a consent authority to refuse or to approve development consent. 18. There is a need for the upholding of the integrity of the system of planning and development control. The system depends on persons taking steps to obey the law by ascertaining when development consent is required, obtaining development consent when required, and carrying out development in accordance with any development consent obtained: Gittany Constructions Pty Ltd v Sutherland Shire Council [2006] NSWLEC 242; (2006) 145 LGERA 189 at [104], [105] and Director-General, Department of Environment and Climate Change v Rae [2009] NSWLEC 137; (2009) 168 LGERA 121 at [18]. 19. Offences that undermine the integrity of the regulatory scheme are objectively serious. Use of the criminal law ensures the credibility of the regulatory scheme.
Similarly, in the earlier case of Pittwater Council v Scahill [2009] NSWLEC 12; (2009) 165 LGERA 289 his Honour observed that (at [46]): 46. There is a need for the upholding of the integrity of the system of planning and development control. 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: Byron Shire Council v Fletcher (2005) 143 LGERA 155 at [60]-[61]; Cameron v Eurobodalla Shire Council at [72]-[80]; Byres v Leichhardt Municipal Council [2006] NSWLEC 82 at [83], [85]; Gittany Constructions Pty Ltd v Sutherland Shire Council at [104]; and Garrett v Freeman (No 5) (2009) 164 LGERA 287 at [58]. Development must be carried out in accordance with the terms of the development consent obtained: Gittany Constructions Pty Ltd v Sutherland Shire Council at [105].
More recently, in Hornsby Shire Council v Henlong Property Group Pty Ltd (No 2) [2019] NSWLEC 17 Robson J remarked as follows (at [40]): 40. Planning approvals are one means by which the State government seeks to achieve these objects, and to ensure the efficient and sustainable development of NSW. These approvals are central to maintaining the integrity of the NSW planning system, and this informs the consideration and assessment of the seriousness of an offence. Offences which undermine the integrity of the regulatory scheme are objectively serious: see Secretary, Department of Planning and Environment v Boggabri Coal Pty Limited [2014] NSWLEC 154 at [19].
Conditions attaching to approvals and consents are imposed to ensure that development is carried out, among other things, in a manner that is safe and that maximises environmental protection. As the objectives of the EPAA indicate, an approval subject to conditions seeks to balance the competing tensions inherent in the use of land. Conditions are imposed by a consent authority after a period of careful consultation and deliberation, often with the input of specialised experts. Compliance with conditions is the price payable for permission to engage in activity that will impact upon the environment and those persons who use it. If development is carried out in a manner contrary to the conditions attached to an approval then the integrity of the regulatory system is not only undermined, the environmental protections afforded by those conditions may be rendered nugatory or, at the very least, eroded, and human health may be compromised.
In Leda (No 4) the Court described the purpose of condition 21A b as follows (at [129]): 129. Turning next to the purpose of condition 21A b, plainly it is to protect the environment and the amenity of nearby occupants by limiting the areas of exposed earth on the site, thereby limiting the capacity for dust generation (by exposure to air) and the entrainment of sediment in rainwater/stormwater runoff. That purpose is best served if the condition is construed by reference to an area of exposed and disturbed earth associated with "bulk earthworks" carried out under the Project Approval.
Leda relied upon Departmental material dealing with MOD2 and evidence from Van Rij to submit that the condition's sole purpose was to minimise dust emissions. But, in my opinion, this description is framed too narrowly. There is no doubt that limiting the area of exposed bulk earthworks by the imposition of condition 21A was intended to minimise a variety of potential environmental harms on the site including, among other things, dust generation, as well as limiting the mobilisation offsite of soil and sediment resulting from such exposed areas.
The above observations are no less apposite in respect of the contravention of s 81A(4) of the EPAA.
Leda's failure to adhere to the conditions of the Project Approval and to obtain a CC prior to engaging in the subdivision works not only undermined the objects of the EPAA and the integrity of the planning regime in this State, it risked compromising the welfare of the community and the surrounding environment.
Having said this, in Minister for Planning v Coalpac Pty Limited [2008] NSWLEC 271 Biscoe J rejected the proposition that an offence involving a major project under Pt 3A of the EPAA should be viewed as objectively more serious than an offence involving a development under Pt 4 of the EPAA (see [31]-[33]). This must be, with respect, correct.
Lastly, in respect of the nature of the offences the subject of the first and second summonses, it is important to recall that the two charges did not arise out of separate criminal conduct but were the result of a change to the EPAA effective from 31 July 2015 increasing the maximum penalty. While the offending conduct was approximately three years' duration, works were not active on the site for the whole period. As Shaw deposed, no relevant activity was conducted on the site for a three month period between April and June 2015. Moreover, at the time that condition 21A was inserted into the Project Approval, exposed and disturbed area on the site had already exceeded the limit provided for in that condition (see Leo Watts's evidence in his affidavit affirmed on 24 May 2017).

[19]

The First, Second and Third Summonses

The prosecutor submitted that the offences the subject of the first, second and third summonses were committed recklessly, or in the alternative, negligently. This was because, notwithstanding that Leda was operating under a level of confusion as to the meaning of the Project Approval and the effect of the various consents and CCs operating across the site, no steps were taken by it to obtain advice from the Council, the Department, or lawyers in order to clarify what its obligations were under that approval.
By contrast, Leda submitted that the evidence disclosed a state of mind that was consistent with a circumstance in mitigation in Leda's favour in relation to those summons insofar as it revealed that Leda was operating under a mistake as to the construction, operation, and effect of conditions 21A and 41 of the Project Approval, together with a mistake as to the operation of the pre-existing consents over the site (Hawkesbury City Council v Johnson; Hawkesbury City Council v Johnson Property Group Pty Limited [2008] NSWLEC 138 at [109] and Hawkesbury City Council v Johnson; Hawkesbury City Council v Johnson Property Group Pty Limited (No 2) [2009] NSWLEC 6; (2009) 210 LGERA 34 at [72] per Pain J). Put another way, Leda held an honest belief that was mistaken at law that the bulk earthworks that it undertook were permitted under the Project Approval and various historical consents which operated over the site simultaneously to the inclusion of each other.
The prosecutor relied upon the evidence of Leda's directors, together with a number of its executives and employees in support of its contention as to Leda's mental state. In particular, the prosecutor relied upon the record of interview ("ROI") of Bob Ell, one of the two directors of Leda. He disclosed that the first time that he had seen a copy of the Project Approval was about two to four weeks prior to his ROI and that he had never seen any modification to it. Rather, it was Van Rij and Brandon Yeats who were responsible for compliance with the condition of the Project Approval "on the basis that they're running the project" (Q/A 108). However, when asked whether or not Yeats, Hughes or Van Rij had ever reported any non-compliance with conditions of the Project Approval, he stated (Q/A 118 to 119 and 123 to 125): Q Have Mr Yeats, Mr Van Rij or Mr Hughes ever reported - when you say they report problems to you, have they ever reported any non-compliances with conditions of consent? A No. Q Have you ever had any - have you ever asked or had any discussions about compliance with conditions of consent with those three parties? A No. I've just assumed that - we haven't had any - any fines or problems or pulled up by - we've been here, like, what - nearly 10, 11, 12 years we've been doing this project and moved something like $50 million worth of dirt, which is millions and millions of cubic metres, and no council or no one has ever come out. We haven't had (indistinct) we've had one problem once where we might have started once without a CC I think - a year or two or three ago , and I think we had one other problem there was an argument with - that's why the engineers got taken off the thing, who was right on the level. So it was us or the council that were on the level, but other than that I can't remember any other incidents that we've had in our whole career here. We've very little complaints from the public, no bad publicity, no nothing. The only complaints we've had is these motorbikes. … A You know, because - if it was a big - if it was a non-compliance and it cost us a lot of money I would hear straight away. Q So am I correct in saying unless it would cost you a lot of money you wouldn't hear about a non-compliance with conditions of consent? A No. Q Okay. So you would hear about any non-compliances with conditions of consent? A I don't hear about it. I'd hear about overruns in budgets and if - if somebody fined us or, you know, such as these instances you're going through here now.
Bob Ell had never seen any of the correspondence sent to Leda by the Department from 14 August 2015 onwards. He was consequently surprised by the Department's allegation that bulk earthworks were conducted in excess of 5 ha because as far as he was concerned "we have DAs all over the site everywhere, and they've been like that for ages" (Q/A 169).
In respect of condition 21A b he had never seen the condition before (Q/A 166), however, he acknowledged that he had participated in discussions about the condition (Q/A 169 to 171 and 206 to 207): Q Okay. And what have the discussions entailed? A The discussions are that - they said they're - they're trying to claim that we're in excess of our 5 hectares and I said, "Well, why - well, how the hell - why - why we're (indistinct)." I said - I said something to the point - I said, "Well, hang on, we have DAs all over the site everywhere, and they've been like that for ages, and we've been clearing here and clearing there and up in the north - what we call the northern hill has been exposed under various other DAs, and so on. So why would they be picking on one little spot in that - up in" - they said to me, "Well this is the open space DA and it's got that condition in, but none of our other DAs have that condition in." So I said, "Well, are we - are we right or wrong?" The opinion of the guys, well, they said, "Well, this is possibly questionable. That we could be right or it could be wrong." Q Did you issue any instructions after that conversation? A Again, that we'd better have a good look at it and comply and get advice. Q Okay. And did they report back to you on that? A That they believed they're within their rights now. … Q Are you aware of any bulk earthworks for the purpose of this Project Approval 08_0200 as modified that have occurred outside the limits of approval? A No. I'm told that we - we believe we're running within our approvals. Q Okay. So who has told you that? A Reg, Brandon, the engineers. They've told - until you guys arrived on site and disputed their approvals we believed we've been doing the right thing because nobody, our certifier or our engineers, no one said, "You're doing the wrong thing," council or anyone.
When asked about the area the subject of condition 41, Bob Ell was not sure if there were approvals to undertake the earthworks within the Wallum Froglet area (Q/A 259 to 261).
Robert Ell, the second director of Leda, was the subject of a compulsory interview on 12 September 2016. As co-director his function entailed "very little" (Q/A 31) other than to manage income and expenditure (Q/A 42 to 43). Robert Ell knew even less about the Project Approval and its conditions than Bob Ell. For example, he did not know what the Project Approval was for (Q/A 94). He had read neither the Project Approval nor condition 21A b (Q/A 106 and 160 to 162). He believed that Van Rij and Yeats were responsible for compliance (Q/A 114). In particular, he was of the belief that Van Rij was operationally in charge of Leda (Q/A 123).
Hughes had responsibility for the earthworks on behalf of Leda through a contracting arrangement with Ecovale Pty Ltd. It was not contentious that Hughes acted as Leda's foreman on the Cobaki Estate project and gave instructions for the carrying out of works. In his ROI dated 15 September 2016, Hughes confirmed that he made the day-to-day management and operational decisions on site. While he had seen the Project Approval he had neither seen its modifications nor condition 21A b. He was aware of the latter but believed that it approved 7 ha of exposed bulk earthworks (Q/A 86 to 92, 100 to 120, 151 to 154, 205-207 and 208 to 210).
Hughes believed that various consents existed for different parts of the development on Cobaki Estate.
In relation to the Wallum Froglet area, Hughes stated that the material removed was placed there in 2006 but later "had to be removed" because "it was overlapping in - on some other lands there". He was told to remove the earth by Van Rij and "the engineers as well" (Q/A 324 to 328).
It was clear from Hughes's ROI that he had a very limited understanding of the Project Approval and which consents governed the works that he was undertaking.
Scotcher was the Development Manager for Leda from 10 August 2015. He reported to Van Rij. He was interviewed on 5 September 2016. When asked what approvals Leda was working under in relation to bulk earthworks in Precincts 1, 2, 9, and 11, he referred to "a number of live CCs across the estate, like historical ones that we're allowed to do earthworks under" (Q/A 110 to 113): Q What approvals were Leda working under in relation to bulk earthworks in precincts 1, 2, 9 and 11? A So, there's the project approval which flowed on from the concept approval and then there were CCs issued by Mike Shaw under those project approvals. Q Are there any other approvals that Leda has worked under for precincts 1, 2, 9 and 11? A Yes. Q What are those approvals? A Off the top of my head, I couldn't rattle off the numbers, but there are a number of live CCs across the estate, like historical ones, that we're allowed to do earthworks under. So, for example, precinct 10, we're doing some filling down there. The borrow pit was up on precinct 9 there on the - is it the western edge of the environmental area there. So, (indistinct) material out of there and placing it onto precinct 10 under one of the CCs - again, a historical one. I can't rattle off the number off the top of my head. Q No worries. Are there any other areas where there's historical CCs in relation to 1, 2, 9 and 11? A They're across the estate. They are literally everywhere. We actually got a plan that shows where all our CCs are and they're all outlined and coloured and everything, that our surveyor did for us and it pretty much covers almost the whole estate. There are very small gaps where there aren't any CCs, but - yeah, as I said, most of those historical CCs cover the entire estate.
Scotcher repeated several times his understanding that there were multiple CCs operating across the site (see, for example, Q/A 129 to 130 and 226 to 227). When asked to identify on a map the areas that were permitted to be disturbed under the Project Approval, his response indicated that the Project Approval referred to the borrow pit only and that the other areas of disturbance were governed by CCs (Q/A 179 to 180).
Unlike others, Scotcher was familiar with the Project Approval and its modifications. He recalled a discussion about condition 21A b with Yeats and Van Rij to the effect that other approvals across the site permitted more than 5 ha under the Project Approval to be exposed (Q/A 264 to 268): Q Can you read out loud 21A(b)? A "21A(b), bulk earthworks for the site are to be limited to a maximum exposed disturbed area that has not been permanently vegetated not exceeding a maximum of 5 hectares at any time to reduce exposed areas unless otherwise approved by the DG." Q Have you seen that condition before? A Yes. Q Have you ever had any discussions about that condition and compliance with it? A Yes. Q Who were those discussions with? A Internally, with Brandon and Reg. Q And what were the - specifically, what were the discussions about? A That we are limited to 5 hectares within our project approval, but our CCs across the site allow us to open up those other areas, so therefore if you look at an aerial map like this, the area of the site will have probably greater than the 5 hectares exposed, but it doesn't mean those areas aren't allowed to be open under our CCs.
Scotcher was not aware of any condition in any approval that excluded Leda from removing the earthen mound the subject of condition 41 in the Project Approval. He did not see "why it wouldn't be permitted" because "it's not placing fill, it's placing topsoil. Subtle difference" (Q/A 243, 244 and see also 251). He identified the "earthen mound" as a stockpile of topsoil that was to be partly used as preload over marine clays in the SSPP (Q/A 242).
Van Rij was engaged by Leda as a manager with responsibility for obtaining approvals, compliance, and general oversight of the works on Cobaki Estate. In his interview on 8 September 2016, he described his role as providing oversight, and stated that he was "primarily responsible for approvals and amendments to those approvals and the general oversight of the operations of the site" (Q/A 28). He confirmed that Bob Ell's attitude to compliance with the Project Approval was to "fix it up" (Q/A 103).
Van Rij confirmed that he was the person to "represent the company as a whole and its development applications and its interface with agencies and so on" (Q/A 109) but that Hughes dealt with the daily operational decisions and management of the site. As to the corporate structure, Van Rij stated that Bob Ell was the "top bloke" and that he and Scotcher reported to him (Q/A 128), otherwise "there's no structure in Leda Manorstead, it's just a - it's an entity that is there to own an account for, and so on, a particular asset" (Q/A 130).
Van Rij confirmed that Bob Ell would not necessarily be made aware of correspondence from the Department and that it was Hughes who was responsible for implementing instructions from the PCA (Shaw).
Unlike others interviewed, Van Rij was familiar with the Project Approval and its modifications. The Project Approval and its modifications were contained in a working document: the Construction Environment Management Plan ("CEMP"). However, no one had undertaken a detailed reading of the CEMP and no one had read the document in detail (Q/A 172 and 176).
As to the approvals that Leda was operating under in Precincts 1, 2, 9, and 11, Van Rij referred to a number of extant and historical CCs (Q/A 178-183). In relation to condition 21A b he said (Q/A 232): Q Okay. Based on that inspection, and the representation of what, for instance, 4.95 hectares would look like in an area, how much would you say was exposed at Cobaki Estate? A Certainly more than 5 hectares.
Moreover, he knew that there were "wide areas of Cobaki that were subject to…construction certificates that have been operated on over the years" (Q/A 233). When asked what approval authorised bulk earthworks in Precincts 1, 2, 9 and 11, the COS, and the SSPP, he again referred to various CCs permitting such works (Q/A 181 and 182, 383 to 387 and 405 to 410).
When asked about the approval governing the removal of the earthen mound, Van Rij responded as follows (Q/A 272 to 274): Q East of those works, is there any approvals that you're aware of that would exist to allow works to occur in that area? A No, there is a requirement for that whole area to be remediated and revegetated. It's one of the - the whole of this edge here is one of the vegetation remediation areas --- Q Yeah, it's listed in this plan as a rehabilitation and management area, RV10. A Yeah, but - yeah, the plan is - is not really clear as to what all of that means. But indeed it is the case that - that the entire area, amongst others, are on the edge here. Right, indeed, through to - through to the site boundary if one of the remediation areas which in due course would be the subject of, usually, depending on the topography and depending on other matters that concern the relevant professionals, usually the subject of the drubbing up of existing - the removal of weeds, spraying for weeds, the removal of - of - of the vegetation that is there, and then it's replacement by what is required, which, well, whatever it's going to be, I'm not sure what it is in that area, but whatever it's going to be, that has to be revegetated. I say that this is a similar area that is the subject of that - that requirement. Q At present are you aware of any bulk earthworks approvals that would exist to allow works to occur east of Cobaki Parkway in the area --- A No.
He 'presumed' that the direction for that work came from Hughes (Q/A 357).
Yeats had a strategic role in assisting with development approvals according to the evidence that he gave during his interview on 6 September 2016 (Q/A 21 to 25). However, Yeats was not able to identify anyone within Leda that was responsible for overseeing compliance with conditions of approval prior to July 2015 (Q/A 43 to 44). After July 2015, when the Department identified potential compliance issues, he was tasked with generally ensuring compliance and addressing any such issues (Q/A 45). However, whether his advice and recommendations were implemented was "not my call" (Q/A 71).
As to the conditions of the consent permitting the bulk earthworks, Yeats said the following (Q/A 100): Q Yes, so in relation - sorry, I'll clarify, in relation to conditions of consent, have you ever had any discussions with the director of Leda, Bob Ell, about compliance with those conditions of the project approval and its associated modifications prior to July 2015? A Yeah but they would relate to compliance of matters that do not relate to site activities. For example, we are still trying to reconcile the old council issued development approvals with our current project and new development approvals. So that is a compliance matter. That is not related to on site activities.
Moreover, while he had seen the Project Approval and the modifications prior to July 2015 he was not "au fait" with every condition in it (Q/A 115 to 132).
Similar to other Leda executives, Yeats believed that historic approvals operated in respect of the site, in addition to the Project Approval, authorising the bulk earthworks being undertaken. For example (Q/A 145): Q Purpose precinct. What approvals was Leda working under for those? A Well, at a minimum, the project approval, that you've identified at the start of the interview and the construction certificates issued pursuant to that. Prior to that and then I would imagine all the way through, there have been historical and current activities that relied on other construction certificates and development consents issued by Tweed Shire Council.
Likewise, in respect of the works occurring outside the borrow pits for the purposes of the COS and the SSPP, Yeats stated that these were the subject of other consents, including historical consents and CCs, that overlapped with each other (Q/A 310 and 312).
After July 2015 Yeats met with Van Rij to discuss the conditions of the Project Approval and the Department's concerns as to non-compliance and how best to deal with the issues that had been raised. While Bob Ell was apprised of the issues at "a high level", the conditions were not discussed in detail with him and his response was that it needed to get "sorted out" (Q/A 141 to 143).
As to condition 21A b and its effect, Yeats stated as follows (Q/A 196 to 200): Q Okay, what is your understanding of that condition? A Well, on my recent review of the assessment report for the modification, I understand that the intent was for the borrow areas, relating to the source material for the central open space. Q Okay, specifically so your - what is your specific understanding of that condition that you just read? A Well, how it reads is that anywhere in the site, the footprint approved under the, under the project approval has a limit of 5 hectares of exposed area. My understanding of that, based on the assessment report and I read the detail, was driven around the management of dust control, which is what was raised in the assessment report and my understanding was that it related particularly to those borrow areas as that particular condition was triggered by the modification request for the borrow areas in precincts 1 and 2. Q So in relation to that condition, have you ever identified any or are you aware of any non compliance with that condition since - during the time with Leda Manorstead? A Well, one must appreciate that you've got not only this approval on site, but you have a multitude of other construction certificates, all of which are valid and current for which activities occur or under which activities occur. And those construction certificates do not have the same limit that the project approval has. Now we understand the intent of the condition, we understand that well and it's clearly articulated in the assessment report. It related to the management of potential dust issues on site, for which I note we've had one, which was documented and addressed and related to actual activities in precinct 1. We were busy with machinery on site. I think that we haven't had a dust issue before --- Q I'll bring you back to the question --- A The condition, the condition, if you read it, is saying that for the central open space approval, do not have 5 hectares open at any one time. That's what I understand what the condition is saying. Q Yes, so my question was, are you aware of any non compliance with condition 21A(b) during your time with Leda Manorstead? A Not when taken in context with the other approvals.
In relation to the removal of the earthen mound, Yeats understood that it was permitted under the "Cobaki Parkway construction certificate", but he was "not 100% over the top of that" (Q/A 233). Yeats was given advice by Hughes that it was an "old topsoil stockpile" and he assumed that it was used for "temporary preload over the SSPP and the missing link, or as topsoil stabilisation within the central open space" (Q/A 328 to 330).
Yeats was of the view that there was a historical CC in place that permitted the removal of the earthen mound (Q/A 344 to 347): Q Are you aware of any approvals that exist in that area to remove that material? A There are historical consents covering the area where I believe that stockpile sits. That stockpile was generated under historical consents, it's been sitting there, you know, approved as part of those works. So I would imagine, without looking at the overlays, that there probably is a CC, the footprint of which - in which that stockpile sits. Q Okay, so you are aware of an approval that would - that does exist in that area? A I believe - yes and - - - Q That would allow for that material to be removed? A I believe there's a historical construction certificate which still has currency, the footprint of which covers the area of the stockpile, I believe. What that says, I don't know, but I would imagine that it doesn't preclude one stockpiling of material; two, removal of that stockpiled material. That's what I would imagine, without going through the conditions of those consents, I couldn't offer that. Q Okay, so you're not aware of an approval that - - - A I believe there is one. I believe there is an approval that covers that area.
Further, Yeats and Scotcher were both of the view that the earthen mound was a topsoil stockpile that did not involve the type of bulk earthworks that were prohibited under condition 41. Yeats identified the "earthen mound" as a topsoil stockpile (Q/A 232 and 263 to 266), stockpiled under previous earthworks activities which was of a temporary nature to be reused later (Q/A 238). In Yeats's opinion, the topsoil stockpile did not constitute bulk earthworks because, "in my opinion, as an engineer, topsoil is not structural fill. Topsoil is placed, as a final layer, to stabilise finished earthworks" (Q/A 265).
What is clear from the above evidence from the executives of Leda (Van Rij, Yeats, Scotcher, and Hughes) was their belief that a number of CCs and consents covered the site and overlapped with the Project Approval authorising the works the subject of the charges contained in the first, second, and third summonses.
This belief was not, however, formed as a result of any reliance on external advice (none had been sought) as to how the Project Approval interacted with the other consents operating across the site. While Yeats recognised that the consents needed to be "reconciled" this was never done. As the prosecutor submitted, those responsible for implementing the Project Approval were clearly working under a misapprehension as to which approval governed the bulk earthworks occurring on the site.
Moreover, because of the "flat" management structure, no one person at Leda was responsible for compliance with the Project Approval and no one appears to have read the CEMP, the Project Approval, its modifications, or its conditions, in detail.
The statements made by those employed by Leda were consistent with those made by Shaw, the PCA for the project development between January 2013 and May 2016. He was interviewed on 5 September 2016 and swore an affidavit on 13 December 2017. As would be expected given his role as PCA, he was familiar with the Project Approval and its modifications, which he discussed with various Leda executives, including Scotcher and Yeats. Shaw carried out 21 inspections, after which a report was written and emailed to Leda with instructions as to actions that he had recommended.
In his ROI, Shaw identified three issues of non-compliance during his time as PCA, none of which concerned condition 21A b of the Project Approval. Nevertheless, he acknowledged that "there were some points where it [exposed earthworks] was in excess of five hectares" but this was quickly followed up with stabilisation and that, in his opinion, the exposure did not lead to any "detrimental environmental consequence". He noted that over a period of three years there were only six or seven complaints, two of which related to dust, which was, in his view, "relatively good" (Q/A 191).
Shaw had raised the 5 ha limit (later changed to 5.59 ha) with Leda, which relied upon his advice and construction of the Project Approval.
During his interview Shaw also referred to a number of CCs which, together with the Project Approval, he believed operated over the site (Q/A 252 to 275).
More specifically, his interpretation of condition 21A b was that, "I think the most important thing to note with that five hectare is five hectares of active earthworks, there was a lot of parts on the site that were already exposed before the bulk earthworks and central open space commenced, so I think it would be unreasonable to kind of include those unless they were part of the consent." (Q/A 183).
Shaw did not see "as a major issue" the fact that he was not aware of any consent to remove the earthen mound because "it was a stockpile that was there from previous works" (Q/A 146 and 147).

[20]

Were the Offences Committed Recklessly or Negligently by Leda?

In Plath v Vaccount Pty t/as Tableland Timbers [2011] NSWLEC 202 the Court considered the test for 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.
More recently, Pain J expressed the test for recklessness as follows (Environment Protection Authority v Sydney Water Corporation [2020] NSWLEC 153 at [68]): 68 In Environment Protection Authority v Wollondilly Abattoirs Pty Ltd at [42] I considered the meaning of the term "reckless", citing Pepper J in Plath v Vaccount Pty Ltd t/as Tableland Timbers [2011] NSWLEC 202 at [98] as the state of mind of an offender who, while failing to perform an act (or performing an act as in this case), is aware of the risk that a particular consequence is likely to result from that act or omission (citing Pemble v R (1971) 124 CLR 107; [1971] HCA 20, La Fontaine v The Queen (1976) 136 CLR 62; [1976] HCA 52 and R v Crabbe (1985) 156 CLR 464; [1985] HCA 22).
An offender's conduct will be found to be reckless if they are put on notice, in the sense that they believe or suspect, that an act or omission may be unlawful but nevertheless proceed to engage in it without making further enquiries (Director-General, Department of Environment and Climate Change v Hudson (No 2) [2015] NSWLEC 110 at [136], citing Chief Executive, Office of Environment and Heritage v Rummery [2012] NSWLEC 271; (2012) 192 LGERA 314 at [126] and Chief Executive of the Office of Environment and Heritage, Department of Premier and Cabinet v Turnbull [2014] NSWLEC 150 at [141]).
The test for recklessness is subjective (Chief Executive, Office of Environment and Heritage v Brummell [2019] NSWLEC 114; (2019) 242 LGERA 241 at [51]).
For an offender to be reckless while performing an act the offender must be aware of a risk that a particular consequence is likely, in the sense of probable or possible (Plath at [98]). The likelihood of the consequence occurring must be a substantial - that is, a real and not remote - chance (Brummell at [52]).
In Gordon Plath of the Department of Environment and Climate Change v Fish [2010] NSWLEC 144; (2010) 179 LGERA 386 the Court articulated the test for criminal negligence as follows (at [81]): 81. The Defendants submitted that the relevant principles (accepted by the Prosecutor) as to whether they were negligent in relation to their advice was that, in the criminal context, negligence means more than a breach of a duty of care. To amount to criminal negligence, the degree of carelessness must be such as to show such a disregard for the objects of the statute as to amount to a crime against the state (R v Bateman [1925] All ER Rep 45; (1925) 19 Cr App R 8; see also Andrews v DPP [1937] AC 576 per Lord Atkin at 583; applied in Cittadini v The Queen [2009] NSWCCA 302 at [38]-[40]). For there to be negligence, there must have been an indifference to an obvious risk (R v Taktak (1988) 14 NSWLR 226 at 247, applied in Cittadini).
Therefore, to amount to criminal negligence the prosecutor must prove more than a breach of a duty of care or a failure to take relevant precautions.
The test referred to above in Fish has been cited and applied on many occasions in this Court. In Environment Protection Authority v Sydney Water Corporation [2019] NSWLEC 100 at [188] the Court examined the test to establish criminal negligence in the context of environmental offending in detail (at [169]-[187]).
Care must be taken when reciting and relying upon the epithet 'indifference to an obvious risk' in its application to the evidence before the Court as it may mislead insofar as it suggests that something less than the stringent test that criminal negligence demands is necessary. As almost all of the cases deploying this language are at pains to emphasise, mere inadvertence to a risk of harm is not enough (Sydney Water Corporation [2020] at [67]).
In my view, a preferable recitation of the test for criminal negligence in the context of environmental crime is to ask 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" (Sydney Water Corporation [2019]).
In Brummell Preston J described the difference between recklessness and negligence as follows (at [51]): 51. A critical difference between [recklessness and negligence] 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).
The prosecutor submitted that in circumstances where: 1. no director or executive of Leda had a working knowledge of the conditions of the Project Approval; 2. there was no system ensuring that at least one person in a position of authority was responsible for ensuring compliance with the Project Approval; 3. no advice had been sought to understand the effect of the Project Approval despite knowledge of a need to "reconcile" it with other existing approvals; 4. there was a failure to take sufficient positive steps to ensure there was a clear understanding by Leda of the effect of the Project Approval; and 5. where there were no pro-active steps taken by Leda to ensure day-to-day compliance with the conditions of the Project Approval, Leda had the relevant foresight of the possibility that there would be potential non-compliance with the Project Approval such that the offences the subject of the first, second and third summonses were committed recklessly by Leda.
In the alternative, the prosecutor submitted that there was such a great falling short of the standard of care a reasonable person would have expected from the directors and executives of Leda in an activity which involved such a high risk of harm, that the breaches of the EPAA the subject of the first, second, and third summonses were committed negligently.
I do not agree. In my opinion, the evidence relied upon by the prosecutor does not demonstrate beyond reasonable doubt that the offences the subject of any of the summonses were committed either recklessly or negligently. Leda believed that it had the benefit of various historical consents, in addition to permission pursuant to the Project Approval, to engage in the bulk earthworks during the relevant period that ultimately formed the subject of the charges. That the Court did not accept submissions by Leda to this effect and held that conditions 21A and 41 could not be circumvented by assertions that the bulk earthworks were being undertaken pursuant to other existing approvals, does not alter the fact that Leda, through its directors and executives, genuinely, albeit erroneously, believed that other consents and CCs allowed the bulk earthworks to take place outside the limits imposed by those two conditions.
I accept much of the prosecutor's criticisms of the manner in which Leda undertook the bulk earthworks on Cobaki Estate. No doubt it would have been preferable for Leda to have had a more robust system of regulatory checks in place to ensure that the conditions of the Project Approval were understood and complied with. But the evidence recited above does not disclose to the criminal standard that Leda was put on notice in the sense that it, either through its directors or executives, had a belief or suspicion, that its bulk earthworks may have been unlawful but that it was nevertheless determined to engage in them absent further enquiries. On the contrary, the evidence plainly establishes a belief, however erroneous, that the earthworks undertaken outside the parameters of the Project Approval were permitted by other consents and CCs. All of Leda's executives and directors expressed an understanding that there had been no breach of condition 21A b due to the overlapping CCs and approvals. This evidence is consistent with an honest but mistaken belief held by Leda during the offence periods to this effect.
Reliance by the prosecutor on Scotcher's admission that Leda did not seek legal advice in relation to condition 21A is insufficient to demonstrate Leda's recklessness. On the contrary, it is consistent with Leda's view that it was permitted to engage in bulk earthworks under historical approvals and consents. Likewise, although Yeats conceded that there had never been a reconciliation of the various approvals, consents, and CCs, failure to engage in this process in the absence of a demonstrated suspicion or belief that the earthworks being carried out were unlawful, does not result in a finding beyond reasonable doubt that the offences were committed recklessly.
Somewhat contrary to the prosecutor's submissions that there was no one within Leda monitoring or taking responsibility for compliance with the conditions of consent, the evidence discloses that Leda relied on its PCA, Shaw, and on Van Rij, who had expertise in matters relevant to compliance and who were monitoring the project in this regard. Shaw had reported no issues of non-compliance with the Project Approval.
The complaint made by the prosecutor that no steps were taken to obtain advice from the Council, the Department, or lawyers as to the proper operation of the Project Approval may be dismissed: first, the Council was in no position to construe the Project Approval; and second, the Department was in no position to address the other consents and CCs. It was McLachlan's evidence, for example, that he never had any recourse to these documents.
Equally, the evidence does not result in such a great falling short of the standard of care that a reasonable person would have expected from Leda in an activity which involved such a high risk of harm that the offences were committed negligently.
On the evidence before it, the Court therefore declines to make a finding that the offences the subject of the first, second, and third summonses were committed negligently or recklessly.

[22]

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

In Environment Protection Authority v Waste Recycling and Processing Corporation [2006] NSWLEC 419; (2006) 148 LGERA 299, Preston J stated that environmental harm includes both actual and potential harm (at [145]-[149]). His Honour identified the following principles in establishing harm, namely, that: 1. harm is not limited to measurable harm such as actual harm to human health, and can include a broader notion of quality of life; 2. harm can include harm to the environment and its ecology resulting from that caused to a particular animal or plant; 3. harm can be direct or indirect, individual or cumulative; 4. the culpability of the defendant depends in part on the seriousness of the environmental harm; and 5. the fact that the environment that is harmed by the defendant's conduct was already disturbed or modified is not a mitigating factor.
The meaning of the words "likely to be caused to the environment" was considered by Lloyd J in Newcastle City Council v Pace Farm Egg Products Pty Ltd [2002] NSWLEC 66 (at [44]): 44 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); "only a real chance or possibility, and not more probably than not" (State Pollution Control Commission v Blayney Abattoirs Pty Ltd (1991) 72 LGERA 221 at 224); and "does not mean 'probable'. It means 'a real possibility'" (New South Wales Sugar Milling Co-operative Ltd v State Pollution Control Commission (1991) 73 LGRA 86 at 100, affirmed by the Court of Criminal Appeal on other grounds, (1992) 75 LGRA 320).
Harm can result from conduct which undermines a regulatory scheme that seeks to prevent environmental damage (Environment Protection Authority v M A Roche Group Pty Ltd [2015] NSWLEC 29 per Craig J, albeit in a different factual context, at [23]).
It is important to note from the outset that the prosecutor does not make any submission that the evidence of environmental harm is relevant to an aggravating factor under s 21A(2)(g) of the CSPA. In light of the evidence discussed below this position was correctly taken by it.

[25]

Did Additional Sediment Mobilise Offsite Because of the Offending?

There can be no doubt on the evidence of all parties that sediment mobilised during the offence periods.
In his first affidavit, Matthew expressed the following tentative opinion (p 26): Any land disturbance, approved or otherwise, will mobilise sediment. Thus, the total area of land to be disturbed under the approval would have mobilised sediment to a degree. The amount of sediment mobilised by the approved works program will be the same, irrespective of whether its performed five hectares at a time, fifty hectares at a time or all at the same time. It is my view, that land disturbed more than the permitted 5 ha (or 5.59 ha) area will result in additional sediment being mobilised at any one time, but not more in absolute terms within the approved earthworks area.
This was repeated when he stated in the same deposition that "the alleged circumstance of the offence was only ever capable of effecting a change to the rate of mobilisation not the amount" (p 29).
However, in the second Matthew affidavit he clarified this earlier opinion (p 36): To remove all doubt, I am of the view that during large rainfall and run-off events, erosion would have occurred on the site and that sediment would have discharged to Cobaki Creek and to the surrounding environment and downstream to the ocean.
In cross-examination Matthew conceded that his view ignored the effect of time on the disturbed land (T262:34-39): Q …If 5 hectares of land is left exposed for two years you're going to have more erosion than if the earthworks occurred and then it's revegetated in a six month period is that correct? A Yes that is it. That's a good point. And what the issue is when we think about the amount of erosion if you have the same duration, the same timeframe it's the same amount so the point is we don't know the durations.
As the prosecutor correctly submitted, to discount the effect of time ignores the circumstances of the offending and the rate of erosion. If, for example, 60 ha of land is exposed over a year, there will be a higher rate of erosion compared with only 5.59 ha of land that is exposed and revegetated, followed by another 5.59 ha of land that is exposed and revegetated, and so on.
The effect of storm events on the offending conduct is also relevant. Each storm event will affect, in the illustration above, 60 ha of land and not merely 5.59 ha, resulting in an even greater likelihood of erosion and sediment mobilisation.
As stated above, the rationale behind the imposition of condition 21A was that only 5.59 ha was to be exposed at any one time and that this land had to be revegetated before work commenced exposing and disturbing new areas. However, by reason of the offending substantially more land was exposed at any given time, and each area was exposed for longer than it would have been if there had been compliance with condition 21A. It followed that, as a result of the offending, substantially more land was subject to erosion and sediment run off events during the offence periods.
As Bewsher concluded in the report attached to his first affidavit (p 2): Sediment loads discharging from the Site into Cobaki Creek during the Offences Period must have increased beyond the loads that would have occurred if construction activities within the Site had been conducted in accordance with the Consent.
He confirmed this opinion in cross examination (T229:05-17): Q Under your conclusions - and it's your first conclusion - "sediment loads discharging from the site into Cobaki Creek during the offence periods must have increased beyond the loads that would have occurred if construction activities within the site had been conducted in accordance with the consent." That was your overall conclusion. Is that right?" A That's one of my conclusions, yes. Q So, that, if we just take, for present purposes, because there's a number of different hectares being considered, 5.59 hectares as opposed to 50 hectares, your conclusion is that if 50 hectares has been subject to construction activities, there would be increase sediment load discharge than the 5.59? A Yes, more area, supposed - all other things being the same, more potential for discharge sediment.
The Court therefore accepts to the requisite standard that it was likely that because of the commission of the offences, more sediment mobilised on the site, which in turn increased the likelihood of sediment being discharged off site into the surrounding environment as a result of the offending.

[27]

RUSLE vs MUSLE Model

Macleod used a model know as Revised Universal Soil Loss Equation ("RUSLE") to calculate his sediment yield. Matthews, on the other hand, was highly critical of the RUSLE model, preferring the Modified Universal Soil Loss Equation model ("MUSLE").
The RUSLE model is based on the calculation A = R x K x LS x P x C, where A is the calculated soil loss in tonnes per hectare per year. The factors are: 1. the R-factor is the rainfall erosivity factor; 2. the K-factor is the soil erodibility factor determined from soil size permeability, soil structure, and organic matter content; 3. the LS-factor is the slope and gradient length; 4. the P-factor is the soil conservation practice factor; and 5. the C-factor is the ground cover.
Macleod ran the RUSLE model four times and on each occasion obtained substantially different results. The variability was acknowledged by Macleod.
Macleod had regard to the soil analysis and the type, nature, and number of ESCs. Macleod was of the opinion that the ESCs described by McLachlan (see the affidavits of Stuart McLachlan sworn on 19 May and 16 October 2017) would not reliably retain clay and silt particles, especially given that some of those particles were dispersive. He expected that such sediment would not have settled in or behind the ESCs and therefore would have flowed into the receiving environment offsite. On this basis, he concluded that at least 43% of the sediment would not have been deposited onsite (being the clay and silt fraction of the soil). The remaining 57% would have been trapped by the ESCs. Using this assumption, and applying RUSLE, in his first affidavit he calculated that: 1. in the period 21 April 2014 to 30 July 2015, the volume of sediment that would have flowed offsite was 41,712 tonnes; and 2. in the period 31 July 2015 to 7 March 2017, the volume of sediment that would have flowed offsite was 51,623 tonnes.
Macleod affirmed a second affidavit in which he corrected errors in his first affidavit and redid the RUSLE calculations, relying on information from Watts's report dated 9 October 2017, to determine the extent of exposed land in various precincts at the site over time (rather than using the total exposed area as he had done previously). The revised results were that: 1. the total volume of sediment mobilised on the site during the period 21 April 2014 to 30 July 2015 was 65,372 tonnes and the volume of sediment that would have flowed offsite was 28,110 tonnes; and 2. the total volume of sediment mobilised on the site during the period 31 July 2015 to 7 March 2017 was 61,356 tonnes and the volume of sediment that would have flowed offsite was 26,383 tonnes.
Macleod also calculated the sediment mobilised and volume of sediment that would have flowed offsite had only 5.59 ha of bulk earthworks been exposed during the relevant charge periods.
The following table summarises Macleod's key calculations of sediment mobilisation in his second affidavit: Summons 1: Summons 2: Total: 21 April 2014 - 30 July 2015 31 July 2015 - 7 March 2017 21 April 2014 - 7 March 2017 Sediment that would have flowed offsite from Precincts 1, 2, 9, 11, the SSPP and the COS 28,110.02 tonnes 26,382.95 tonnes 54,492.97 tonnes Sediment that would have flowed offsite if no more than 5 ha of the site was exposed at any one time 3,523.9 tonnes 3,269.6 tonnes 6,793.5 tonnes

[28]

According to Matthew, Macleod's decision to use the RUSLE model was wrong because RUSLE is a decision support tool to inform designers of soil conservation measures, extension officers, and teachers, of the impact of site features, management practices, and control measures. It is not a tool meant to be used to estimate sediment yields from catchments and can have no value in determining the actual weight of sediment generated from the areas nominated by Macleod.
Matthew identified six errors in the input data utilised by Macleod in his second affidavit for use with the RUSLE model: 1. first, an incorrect estimate of the R-Factor - Matthew explained that the R-factor was calculated using the full rainfall data set from multiple weather stations including wetter years. The impact of wetter than average periods had already been incorporated into the rainfall intensity. Macleod had incorrectly rescaled the R-factor; 2. second, insufficient data existed for the K-factor estimate - Matthew stated that the soil erodibility K-factor could be estimated from the particle size distribution, organic matter, and the structure grade and permeability class of soil. Macleod had relied on a single sample, not taken by him, to define the K-factor. This was flawed because the soil characteristics on site were highly variable. Instead, the landscape should have been assessed and defined in terms of the uniform soil types, with separate samples and estimates made for each unique mapping area. Matthew also noted that the sample of soil relied on by Macleod showed a dispersion percentage of 10%, which was inconsistent with dispersible soil (which typically showed a dispersion percentage of greater than 50%). This soil sample selection was inconsistent with Macleod's observation that the site has dispersive soils. To demonstrate the error in Macleod's methodology, Matthew conducted his own assessment of the K-factor applicable to the site. His assessment involved taking samples of dispersive soils scattered and localised within the landform of Precincts 1, 2, 9, 11, and the COS. Matthew's results indicated that the landform on site exhibited only localised signs of dispersivity as opposed to the extensive, whole-of-site dispersivity classification suggested by Macleod. Accordingly, Macleod's calculations were unreliable. Further, his analysis indicated significant variability at the site and, therefore, Macleod's assessment of the K-factor had insufficient detail to permit a reliable assessment of the erosion potential of the site; 3. third, insufficient data and incorrect measurements for the LS-factor estimate - the use of a single LS-factor did not reflect the actual conditions of the site. As a consequence, Macleod's assessment resulted in a broad-scale estimate that introduced further error and decreased the reliability of the calculations of mobilised sediment. Matthew undertook slope readings on the site. The assessments revealed slopes of considerable variability across various precincts. It was Matthew's view that Macleod's failure to conduct a reasonable slope assessment and his use of slope gradients greater than those apparent on the site meant that he had overestimated the amount of erosion and sediment mobilisation; 4. fourth, insufficient or no field measurements for the P-factor - Macleod did not refer to evidence indicating that he had undertaken an assessment of the surface roughening of the soils, instead he had adopted a default P-factor as suggested in the Lancom - Managing Urban Stormwater: Soils and Construction Report (2004) ("2004 Lancom report"); 5. fifth, insufficient or no field measurement for the C-factor - Matthew was critical of Macleod's failure to conduct a soil surface assessment of the site and his use instead of the 2004 Lancom report's default factor. His failure to conduct an assessment at the site resulted in a likely overestimation of the soil losses and the mobilisation of sediment. Matthew explained the importance of the C-factor in the following terms: The C-factor is related to the amount of groundcover on the site. The role of the cover is to disrupt the force of the rain drops as they hit the soil surface. The impact of the rain is the first step in the erosion process because it has the capacity to smash the soil into small particles and then dislodge soil particles in preparation for water transport down slope. One normal expectation is that grass provides such ground cover or protection and thus this explains the requirement for revegetation as soon as possible after the disturbance caused by bulk earthworks. Groundcover includes not only living or dead organic material, but also contains inorganic material (such as gravel and rock) that are on the soil surface. Macleod's failure to acknowledge the presence of inorganic material on the site was, according to Matthew, an omission from his assessment; and 1. sixth, an incorrect expression of volume - throughout his report Macleod had expressed volume of sediment in terms of "tonnes", which is not a measure of volume, but a measure of weight (or mass).
Upon his review of Matthew's criticisms, Macleod swore a third affidavit annexing a report dated 14 June 2019, wherein he revised his calculations of sediment mobilisation from the site and commented on Matthew's first affidavit. In his third affidavit, he conceded that: 1. MUSLE might generally be more useful than RUSLE as a tool for calculating sediment yields from individual rainfall events; 2. RUSLE had limitations as a sediment yield model. However, he did not accept that it was an inappropriate model for estimating sediment mobilisation; 3. the R-factor derived by Matthew was more precise than that used by him in his second affidavit; 4. the soil sample that he had used to derive the K-factor was not representative of soil conditions in each precinct and was too conservative; 5. he did not have the benefit of a survey model onsite to take slope measurements therefore he re-calculated the quantity of sediment mobilised by revising the LS-factor based on the slopes measured by Matthew, but making an allowance for areas where he believed that Matthew had downplayed the significance of steep slopes; 6. because Matthew's derivation of the P-factor took into account available historical evidence, Macleod revised the P-factor for the areas within Precincts 9 and 11 where surfaces were rough; 7. it was correct to take into account the hard rock borrow area in Precincts 9 and 11 and MacLeod modified his C-factor accordingly; and 8. the potential presence of rock on the surface of all precincts needed to be accounted for (not just Precincts 9 and 11) and he therefore adjusted his C-factor for all precincts accordingly.
As a consequence, in his third affidavit Macleod used the follow factors: 1. the annual R-factor as suggested by Matthew but weighted according to observed rainfall; 2. the K-factor as suggested by Matthew; 3. the LS factors suggested by Matthew but making allowances for areas where Macleod believed Matthew had downplayed the slopes; 4. a P-factor of 1.3, but having regard to the comments of Matthew used 1.1 for Precincts 9 and 11; 5. a readjusted C-factor to account for a greater presence of rock as identified by Matthew; and 6. a P-factor of 1.3 which the 2004 Lancom report had used as a factor when surfaces were hard and compacted.
The following table summarises Macleod's key calculations of sediment mobilisation in his third affidavit together with a calculation of the extent of variation from his calculations in his second affidavit: Summons 1: Summons 2: Total: 21 April 2014 - 30 July 2015 31 July 2015 - 7 March 2017 21 April 2014 - 7 March 2017 Sediment that would have flowed offsite from Precincts 1, 2, 9, 11, the SSPP and the COS 8,289 tonnes 7,631 tonnes 15,920 tonnes Sediment that would have flowed offsite if no more than 5.59 ha of the site was exposed at any one time Less than 3,504 tonnes Less than 3,252 tonnes Less than 6,756 tonnes

[29]

Macleod's revised calculations in his third affidavit reduced the estimate of sediment mobilisation offsite by 71%. Macleod acknowledged that these figures were significantly less than those calculated by him previously. He nevertheless maintained that his calculations were "conservative".
In cross-examination, Macleod was challenged on his assumption that 43% of the soil profile (the finer sediment component of the soil) was exported off site (T110:44 and 111:18-19). He conceded that the assumption did not take into account observations made by McLachlan of turbid water in dams, which was indicative of finer sediment being captured by the dam and not leaving the site (T111:26-112:22). For example (T112:11-22): Q There is the prospect if not probability that the turbid water is actually holding the finer sediments is it not? A It's possible yes. Q In fact it's likely? A A lot of turbidity is due to fine sediment so I think it is likely yes. Q Yes, so if her Honour reads Mr McLachlan's affidavit that says turbid water sitting in a sediment dam you would agree would you not that that is indicative of the finer component of the sediment profile that you've assumed is to be exported offsite? A I would agree yes.
However, as is discussed further below, Macleod's adoption of a 43% estimate is consistent with the observations of Leda's Environmental Officers ("EOs"), especially Dr Michelle Mills, who saw sediment laden water leaving the site and entering Cobaki Creek, and who noted that relevant sediment basins were not being emptied and flocculated unless she requested that they be. It is also consistent with NearMap aerial photographs that indicate plumes of sediment laden water entering Cobaki Creek.
Nevertheless, Macleod agreed with the proposition that he had not read any material that would support his opinion that approximately 16,000 tonnes of sediment laden water had left the site between April 2014 and March 2017 (T115:07-42).
Despite Macleod's recalculation of estimated sediment mobilisation, Matthew maintained his opinion that Macleod's use of the RUSLE model to perform those calculations was inherently flawed. The RUSLE model had no capacity to either estimate or accommodate the hydrologic characteristics of the site which, Matthew noted, were essential to assessing the impacts of the export of sediment on the receiving environment, or the hydraulic behaviour of the drainage network outside of the site. The hydrology of the development catchment and the Cobaki Creek catchment was critical because the effect of any sedimentation was determined by the concentration of the suspended material, the timing or routing of the different catchments during a run-off event, and the energy of the water transferring it through the waterway and into the sea (the hydraulics).
Matthew again identified problems with the input data selected by Macleod for use with the RUSLE model: 1. first, the estimate of the R-factor - Macleod continued to apply a scalar adjustment to the R-factor which had already been adjusted to account for rainfall variability through the use of a statistical average; 2. second, the estimate of the K-factor - Matthew disputed Macleod's assertion that the collection of multiple soil samples from the site that he had used was truly representative of soils across the site because material had been extensively re-distributed across the development. By contrast, Matthew noted that much of the site, which could be reasonably considered to be representative of the soils prior to disturbance, remained undisturbed, and therefore, able to be sampled. Again, Matthew noted Macleod's failure to undertake any soil mapping of site soils to establish more appropriate K-factors, resulting in an error in the estimate of soil loss; 3. third, the estimate of the P-factor - Matthew noted Macleod's failure to assess the impact of the landform, exposed surface condition, detention ponds, bunds, differential catchment, discharge directions, and the likelihood of waters escaping the exposed areas; and 4. fourth, the estimate of the C-factor - again, Matthew noted Macleod's failure to conduct a surface cover assessment of the site and that site-specific measurements of C-factor were an essential component of any estimate of soil loss. Further, the significance of rock cover was not accounted for by Macleod. For example, the percentage of rock cover in the hard rock borrow area of Precinct 11 was very high - up to 100% coverage. This would be so effective at minimising erosion that sediment yield from that area would be zero. Matthew also noted that the C-factor for gravel was 0.05 and the distribution of the gravel in the 'exposed' precinct areas was not accounted for by Macleod in his estimate.
A number of additional errors in Macleod's methodology were identified by Matthew, including: 1. a failure to complete a sensitivity analysis of the parameters used in the RUSLE model; 2. a failure to undertake an assessment of the catchment hydrology, water flow hydraulics, or sediment rate after it left the site; 3. a failure to verify the assertion that over 15,000 tonnes of sediment left the site; 4. a failure to test the assumption that the soils on the site were dispersive; 5. a failure to assess the sub-catchments and their flow direction in the disturbed areas on site; and 6. a calculation of sediment mobilisation in absolute terms without any idea of which 5.59 ha area on the site was exposed. This was problematic in circumstances where the amount of sediment was a proportion of the area exposed.
Matthew also disagreed with Macleod's assertion that the assumptions that he applied to the RUSLE model were "conservative". In Matthew's opinion, Macleod's assumptions were, in many instances, inappropriate for the site because they had not been based on site specific observations or measurements. As a consequence, Macleod had "substantially overestimated the sediment yields".
In his first affidavit Matthew did not carry out a calculation using the RUSLE or MUSLE model. Rather, in addition to critiquing Macleod's second affidavit, Matthew provided his own assessment of sediment mobilisation on the site. In Matthew's opinion, any assessment of historical sediment mobilisation on the site before the land was at, or near, the final "as constructed" survey levels, was impossible because the requisite data did not exist and could not now be collected. Such data included the slope gradients of the disturbed land, the measurement of the overland flow distances, soil data sufficient to estimate soil erodibility and to calculate the K-factor, and the disturbed land surface condition.
Because it was impracticable to collect this data retrospectively, Matthew concluded that there was no way to separate the sediment that would have been deposited before and after 7 March 2017. Without this information he could not estimate the actual weight of this sediment and to do so would be speculative. To the extent that Macleod proceeded to undertake his calculations in the absence of this data, this weighed heavily against the reliability of his evidence.
But Matthew acknowledged that it was likely that some of the disturbed land would have mobilised sediment to some degree because, as he noted, any land disturbance, approved or otherwise, will result in sediment mobilisation during rainfall events. For example, he deposed to sediment mobilisation that he had observed on the site through the presence of rilling and gullying, and by recourse to McLachlan's photographic records.
However, in his view, disturbed areas of more than 5.59 ha would not have resulted in additional sediment being disturbed in absolute terms. This was because the actual amount of sediment mobilised would be the same whether five, ten, or fifty hectares of land was disturbed. Eventually all areas within the approved earthworks program would be disturbed and any change would only be to the rate of sediment delivery, not the amount of sediment. As he explained orally (T262:40-49): A. …So I was thinking along those lines to say all right if we do 5 hectares a year for 20 and that will give us five times 20 will give us that amount of 100 hectares erosion. And if you do the same 100 hectares within that year that gives you the same maximum amount. What's important, what's important in terms of development on a decision or an assessment of whether it's going to be causing environmental harm or an impact on the environment is the rain. So the important thing that 100 hectares has a higher rate of erosion delivery in that one year distinct from the five year over 20 years but in absolute terms it's really not particular important, it's the rate that's important. So what we're talking about here is the case.
In his third affidavit, Macleod rejected this analysis, emphasising that sediment mobilisation is a product of both time and the extent of any disturbance.
Matthew ran the RUSLE model using three different C-factors, namely, 50%, 25%, and 10% groundcover. The three scenarios were based on different estimates of the C-factor because he was not able to assess the condition of the soil surface at the time of the commission of the offences. Matthew did not break his calculations between offence periods, and therefore, gave total estimations across both offence periods.
In order to calculate the amount of sediment flowing offsite, Matthew used the same assumption as Macleod, namely, that 43% of the sediment mobilised off the site.
The results obtained by Macleod and Matthew were as follows (using a different C-factor gave rise to the greatest variance in the RUSLE model calculations): Macleod Matthew Matthew Matthew C-factor 50% C-factor 25% C-factor 10% Amount mobilised during 21 April-30 July offence period 19,277 Amount flowing offsite during 21 April-30 July offence period (43%) 8,289 Amount mobilised if 5.59 ha is exposed 3,504 Amount flowing offsite if 5.59 ha is exposed (43%) 1,507 Amount mobilised during 31 July 2015-7 March 2017 offence period 17,747 Amount flowing offsite (43%) during 31 July 2015-7 March 2017 offence period 7,631 Amount mobilised if 5.59 ha is exposed. 3,252 Amount flowing offsite if 5.59ha is exposed (43%) 1,398 Combined total flowing offsite due to offending 15,920 5,356 10,611 15,952 Total flowing offsite if 5.59 ha was exposed during offending 2,905 465 921 1,384 Combined total of additional sediment flowing offsite due to offending 13,015 4,891 9,690 14,568

[30]

Matthew therefore estimated that, at a minimum, the total sediment mobilised from the site into the surrounding environment across both offence periods was 4,891 tonnes.
As Leda pointed out, that estimate was: 1. 69% less than the 15,920 tonnes estimated by Macleod in his third affidavit; and 2. 91% less than the 54,493 tonnes estimated by Macleod in his second affidavit.
Importantly, Matthew further stated that (p 45): Given the propensity for error of the method adopted and misinterpretation, it is my view that the additional sediment that may have been mobilized and left the site may have been significantly less than my lowest estimate of 4,891 tonnes.
Unlike Macleod, Matthew verified his calculation of sediment mobilisation by conducting a site assessment to identify whether any sediment that could be identified as having originated from the site persisted in the receiving environment. He found no evidence demonstrating a link between the sediment discharged from the site and any sediment in the surrounding environment, such as the Cobaki Broadwater. Therefore, in his view, although during large rainfall and run-off events erosion would have occurred and sediment would have discharged offsite into Cobaki Creek, it would have travelled downstream and out into the ocean.
With respect to his observations of the site and his analysis of the available data, Matthew noted that: 1. it was likely that there were 13 months during which no sediment could have left the disturbed areas (even though the RUSLE calculation indicated that sediment was generated). For nine months during the offence period it was unlikely there was any run-off and for a further four months, the likely run-off would have been insufficient to move the sediment within the site, let alone off the site; 2. drawings examined by him depicting the eastern side of Precinct 9 (adjacent to the environmental zone within the site) showed bunding and sediment accumulation against the bund that had overflowed and had discharged into sediment ponds. Therefore, there was significant onsite detention of sediment that would have prevented sediment from discharging from Precinct 9; 3. the soils at the site were highly coloured (yellow, orange and red). He conducted a field assessment to identify if any sediment from the site was observable in the receiving environment of the Cobaki Broadwater. There were no indications in the soil core samples taken by him that the highly coloured sediments from the site were resident in the Cobaki Broadwater; and 4. his statistical assessment of the total suspended solids ("TSS") in water samples revealed that none of the sample locations, including one immediately downstream from the discharge point from the site (TES14), demonstrated a statistical difference between the offence periods and the post-offence periods. While there was some statistical difference at TES14 between the pre-offence and post-offence periods, this was likely due to other influences.
Matthew's evidence was consistent with Bewsher's analysis (see below at [227]-[232] and [321] to [332]), namely, that there was sufficient flow velocity to maintain any suspended fine sediment in transport. The receiving environment of the Cobaki Broadwater is shallow with a turbulent water basin flowing into the open ocean. According to Matthew, at all times during this path, the concentration of sediment load diminished due to dilution. Therefore, sediment would not have been transported to any sensitive receiving environment, but would have been transported to the ocean.
Finally, in Macleod's fourth affidavit he attached a report responding, in part, to Matthew's second affidavit. Of significance was Macleod's view that his earlier opinions regarding sediment mobilisation from the site were not undermined by not having undertaken sediment cores from Cobaki Creek, the Cobaki Broadwater, or further downstream in the Cobaki Estuary. This was because the sediment would have mobilised from the site months or years prior to his involvement in the proceedings. Moreover, given the hydraulic processes at work in the Cobaki Estuary, the sediments would have "most likely" been re-distributed, discoloured, and/or blended with other sediments. Thus, the possibility of identifying the sediment and conclusively linking it to the site was low. It was for this reason that he had regard to aerial photographs showing "highly coloured turbid water extending form the site downstream throughout the estuary".

[31]

The Evidence of Bewsher

In addition to the evidence of Bewsher discussed below (which is relied upon here without repetition: see at [321]-[332]), relevant for present purposes are Bewsher's opinions concerning the ESCs on site insofar as his remarks inform, and form part of, the evidence with respect to sediment mobilisation caused by the commission of the offences the subject of the first and second summonses.
It should be noted at this juncture that whether or not there were any deficiencies in the ESCs is not taken into account as an aggravating feature of the commission of the offences (this formed the basis of the withdrawn charge referred to above). Rather, the efficacy of the ESCs and Leda's stabilisation of the site is considered in the context of the issue of sediment mobilisation. Put simply, the more likely the ESCs operated to contain the sediment on the site, the less likely it mobilised into the receiving environment. To take into account evidence in this manner does not, notwithstanding the withdrawn summons, infringe the rule in The Queen v De Simoni [1981] HCA 31; (1981) 147 CLR 383.
In his first affidavit, Bewsher had regard to the evidence of McLachlan and reviewed the evidence regarding ESCs on the site in order to determine their efficacy.
After examining various documented site inspections in which observations were made about the water quality leaving the site (or the potential for it to leave the site), together with reports commenting on potential or actual water quality impacts, Bewsher concluded that (at paragraph 84, footnotes omitted): (a) There were numerous occasions where deficiencies in the erosion and sediment control (ESC) measures on the Site caused sediment to leave the Site or created the potential for this to happen. Nevertheless in every case the quantum of sediment appeared to be very small and the sediment discharges were almost always on the edge of the salt marsh, and not directly into Cobaki Creek. (b) Apart from one resident complaint which was subsequently investigated and for which no specific details are available, there are no observations or reports of sediment leaving the Site and entering the Creek except in very minor quantities. There are numerous reports that no sediment was entering Cobaki Creek from the Site. (c) The Site is directly opposite the Cobaki Broadwater Village and the outlet of Dunns Drain into Cobaki Creek. The condition of the Creek can be clearly seen from the southern Creek bank within the Village. Although sediment discharges and surface runoff occur during and immediately after rainfall, and residents may not want to be outdoors at these times, I note that there have been no other reports by residents of significant sediment runoff from the outlet of Dunns Drain into Cobaki Creek from the vantage point within the Village. (d) The condition of Dunns Drain where it enters Cobaki Creek could easily have been inspected on the south-eastern side of Cobaki Parkway or by driving to Cobaki Broadwater Village. Those inspecting the site, including those listed in Annexure G, appear to have had no reason to warrant the inspection of Dunns Drain. (e) Further my inspection of the numerous aerial photographs, including 28 taken during the Offences Period, did not show any water discolouration to indicate a significant sediment discharge from the Site was occurring or had occurred. (f) My reasoning in (b), (c), (d) and (e) is not conclusive but indicates to me that significant sediment discharges were unlikely, or if they did occur, they were not a frequent occurrence during heavy rainfall events. (g) Leda's Environmental Officer (EO) monitored turbidity within the Site (weekly) and in the Cobaki Creek (monthly). After Mr Mclachlan started to make inspections of the Site, MKEHC reported on the relativity in turbidity between the Site and the Creek and the implications that could be drawn from this about the ESC measures and management on the Site. In particular, they made no reports that indicated the Site was adversely impacting on the Creek. Further on numerous occasions they stated "The fact that the water quality in the receiving environment (Cobaki Creek Upstream and Downstream) is better quality than that in the sediment basins in terms of turbidity, shows that the sites sediment and erosion measures are working" or similar wording in their monthly reporting. (h) Council's consultants, Hydrosphere Consulting, in summarising their water quality assessment of the Cobaki and Terranora systems over the approximately five year period from January 2012 to November 2016 stated that "there was again no indication of elevated TSS concentrations at site TES 14 relative to site TES 13, indicating that the monitoring strategy did not detect significant impacts due to runoff from the Cobaki Lakes construction site". Whilst Council's monthly monitoring strategy upon which this conclusion was based did not target specific rainfall events (and therefore may have missed significant sediment events), Hydrosphere's report provides further evidence, although not conclusive, that the Site was not having a significant impact on water quality- in Cobaki Creek and the Estuary.
Later he opined that (at paragraph 114): (a) The EOs' reports identified numerous examples of deficiencies in the ESC measures. (b) I do not find the number of these deficiencies to be unusual given that the Site is very large. However I do find the failure or tardiness of Leda's contractors to implement rectification measures to be poor practice. (c) The information in paragraph 84, which I deduced from the observations of inspections on Site during the Offences Period, indicates to me that significant sediment discharges from the Site were unlikely, or if they did occur, they were not a frequent occurrence during heavy rainfall events. (d) Also of importance is the elongated nature of the Site and the long flat grades in the lower drainage paths including Dunns Drain, which likely promote deposition within the Site, before the runoff outlets into Cobaki Creek. (e) Consequently in my opinion, the topography of the Site which tends to promote deposition of sediment within the Site, and the ESC measures that were in place despite being deficient in some regard, were sufficient to mitigate significant export of sediment from the Site.
The reference to "significant sediment discharge" means "the volume of sediment and its potential to impact on TSS levels in Cobaki Creek and downstream" (the first Bewsher report at p 37).

[32]

The Evidence of Shaw

Shaw gave evidence in Leda (No 4) concerning his observations of the site in his capacity as PCA. One of Shaw's roles (see conditions 16, 25, 27, 34, 36, 44, and 47 of the Project Approval), prior to (not during or at the conclusion of) the commencement of any works was to be satisfied with the ESCs installed and operational at the site.
In addition to his ROI dated 5 September 2016, Shaw swore an affidavit in the proceedings on 13 December 2017, annexing the PCA reports that he had prepared in relation to the project. The observations made by Shaw about the stabilisation of the site and ESCs are germane to the issue of sediment mobilisation. It is important to recall in this context that Shaw was called as a witness for the prosecutor, and not Leda.
Shaw's evidence revealed that during the offence periods Leda stabilised exposed and disturbed land throughout the site. Shaw told the Department in his ROI that he thought that Leda might have exceeded the 5.59 ha of bulk earthworks permitted on the site, however, Leda "fairly quickly came through with topsoil and stabilised some of those areas" (Q/A 183). Shaw observed that while areas of exposed land seemed excessive, Leda had "progressively topsoiled as things were excavated" (Q/A 205). He noted that Precinct 2 was a fairly rocky area and that therefore it did not concern him that there was a lot of exposed surface that would generate dust or sediment run off (Q/A 183). He observed that Precinct 1 had fairly sparse covering "so there would have been some generation of sediment" but that it was in a "relatively stable state" (Q/A 183). Shaw emphasised this by reference to the state of the site in September 2016 (Q/A 183): So overall I'd say look there were points where they did creep outside of that five hectares but fairly quickly you know followed up with stabilisation to the point where a large part of the site now which was exposed is now completely grassed.
When asked if the ESCs implemented on site were in accordance with the approved documents, Shaw responded that generally they were, and moreover, that while "they haven't been the best in terms of implementing soil erosion control but they are not the worst either…They've certainly implemented fairly effective soil erosion control strategies" (Q/A 283). In addition, it was his reading of the commissioned Biome report (see below at [278]) that the ESCs issues identified in that report were not critical (Q/A 296). Shaw readily admitted, however, that he was not certified in ESCs (Q/A 286), although he had experience with such measures in his capacity as a PCA. Shaw expressed "faith" in Leda's ability to manage its ESCs. He "wasn't nervous about their ability to understand what's required" (Q/A 300).
The observations by Shaw in his ROI were consistent with his evidence at the liability hearing. Shaw gave evidence that he observed on a number of occasions that Leda had taken steps to "stabilise" areas of bulk earthworks by topsoiling for seed (T327:09-11). For example, he stated that he had observed that: 1. on 17 April 2014 earthworks in the COS were "generally well stabilised". That is, they had been "top soiled and were either seeded, compacted or were indeed grass" (T323:25-35); 2. on 3 December 2014 earthworks in the COS were "almost complete", meaning that "the activity of filling and cutting and then stabilising were coming to an end" (T325:02-03); and 3. on 2 November 2015 old topsoil stockpiles outside of the COS had been harvested for missing link preload and stabilisation works, that is, topsoiling for seed (T327:09-11).
This oral evidence was consistent with a review of Shaw's inspection records during the offence periods where he observed that: 1. on 6 February 2014 all required sediment basins were in place and operating well; 2. on 7 March 2014 sediment basins and silt fences were operating well; 3. on 17 April 2014 sediment basins, silt fences and other ESCs appeared to be operating well; 4. on 2 July 2014 ESCs were continuing to be installed as required and were generally considered satisfactory; 5. on 18 February 2015 sediment basis were in operation and were full; 6. on 2 November 2015 silt fences had been installed throughout the site; 7. on 4 February 2016 sediment fence and rock diversion bunds had generally been installed at critical locations; and 8. water carts were used to water down disturbed work areas on 20 August and 30 September 2014, 6 August, 15 October, and 2 November 2015.
But these inspection reports also indicated that the advice provided by Shaw was not always followed in a timely manner. For example, there was the need to: 1. flocculate and empty sediment basins, often attended with a degree of urgency (7 February, 7 March, 21 August, and 1 October 2014, 16 October 2015, and 9 February 2016); 2. repair ESCs (4 December 2014, 9 February and 11 March 2016); and 3. effect stabilisation of earthworks (1 October and 4 December 2014, and 11 March 2016).
Nevertheless, on 22 July 2015, after Departmental investigators McLachlan and Christopher Shultz (who swore an affidavit on 14 September 2017) inspected the site, there was a meeting between Leda, the investigators, representatives of the Council, and Shaw. Shaw's inspection report dated 23 July 2015, which was relevantly consistent with the contemporaneous file notes of McLachlan and Shultz, revealed that: 1. Shaw had told the investigators that the site was very good or good between 2012 and 2015, and in some cases, better, than "best practice" with respect to ESCs; 2. only two complaints had been received about the project between 2012 and 2015 (one about dust and one about blast impacts) and no complaints had been received regarding discharge of sediment laden runoff or pollution; and 3. that ESCs were being implemented prior to the commencement of bulk earthworks.
Curiously, the positive assessment by Shaw was omitted from McLachlan's written evidence (T68:36-40; 69:08-09; 70:11-15 and 83:32-36). This was all the more perplexing given McLachlan's concession in oral evidence that Shaw's observations and his state of satisfaction as to the ESCs on site were significant (T83:06-09). McLachlan agreed that a single dust complaint noted by Shaw at the 22 July 2015 meeting was "small" given the three year period of works (T78:12-14).
Leda submitted that the omission of Shaw's assessment from McLachlan's evidence was calculated to be misleading. But given that Shaw was a witness for the prosecution, it is difficult to maintain this contention.
In this context it is convenient to note that McLachlan also conceded that his observations about ESCs were based only on particular parts of the site and that he had never assessed whether overall the site had sufficient ESCs to contain any discharge or sediment mobilisation on the site (T54:46-55:04).
Shaw told the Department that he prepared plans to assist Leda in the staging of the earthworks in order to "minimise the exposure". The plans were stamped as part of his certification and were an "attempt for the contractor to show what was possible with that five hectare limitation" (Q/A 190). When asked if they were adhered to, Shaw responded as follows (Q/A 191): As a guide, that's what I was using when I'd go out for my inspections to see which areas had been cut and which areas had progressively been filled. I admit they probably did get a bit beyond what was shown on that staging plan. But to me you know the big thing was whether it led to any detrimental environmental consequence. My understanding that it wasn't. You know I had Yeats doing inspections, so they were out there weekly, fortnightly to let me know if there were any exceedances and certainly I got no feedback from council or from the environmental officer or from Yeats that it was translated to a problem. We certainly had - over a period of three years I think we had six or seven complaints, two of them are related to dust, so over a three year period that's relatively good. So I wasn't getting any feedback as the PCA from council, from the environmental officer, from Yeats, even from neighbours that it was translating that excess, you know in excess of five hectares was translating to you know problems.
However, Shaw was required to advise Leda to flocculate and dewater sediment basins when they were full, presumably to prevent the overflow of sediment laden water. For example, in his affidavit he stated that during his 2 November 2015 inspection he observed that there were: No signs of construction sediment leaving western side of missing link into salt marsh area. However, it appeared that if minor to moderate rainfall was experienced in the short term, sediment laden runoff is likely to enter the salt marsh areas; Signs of moderate to high turbidity in Dunns Drain on the eastern side of the missing link. It appeared that removal of upstream rock bunds and recent rain have caused some sediment laden runoff to leave the site.
And at his site inspection on 4 February 2016, he noted that "there were no signs of excessive sediment discharging from Missing Link into adjacent saltmarsh or Dunns Drain" (emphasis added). The same wording was used in respect of his observations on 29 April 2016. Put another way, sediment was mobilising off site, but not 'excessively' so.
Finally, it is important to note that although Shaw attended the site between August 2013 and April 2016, there were significant periods when no inspections occurred, for example, between: 28 November 2013 and 6 February 2014; 17 April 2014 and 2 July 2014; 30 September 2014 and 3 December 2014; 3 December 2014 and 18 February 2015; 18 February 2015 and 22 July 2015; 6 August 2015 and 15 October 2015; 9 November 2015 and 4 February 2016; and from 29 April 2016 to the end of the charge period on 7 March 2017.

[33]

The Evidence of Leda's Environmental Officers

The observations made by Leda's EOs during their inspections of the site during the offence periods are also relevant to the issue of sediment mobilisation. Leda relied on evidence from three of its EOs who worked on the site during the offence periods. Leda submitted that the evidence of the EOs was consistent with the analysis conducted by Matthew and Bewsher and the observations of Shaw.
First, Jon Alexander is an environmental consultant and scientist who was the EO for the project between September 2013 and May 2014, and who inspected the site on 17 occasions during the first summons offence period (see his affidavit dated 27 April 2020). During his inspections Alexander relevantly noted that: 1. ESCs had been installed on the site; 2. sedimentation pits appeared to be satisfactorily maintained and were working well; 3. most waterways observed appeared to be in a suitable stable condition; and 4. drainage from the active construction sites was being directed through necessary controls prior to entering any water course.
However, he also noted matters that demanded attention by Leda including that: 1. ESCs required routine maintenance, in particular those in the COS and those attached to historical approvals; and 2. compromised sedimentation fencing in several areas required maintenance, including around the compensatory habitat area and adjacent to the main approach road to the site. In areas where works were currently being undertaken Leda was responsive in correcting sediment fencing, however, in areas where no works were being undertaken at the time, Leda was slow to action any works required to rectify sediment fencing.
In his affidavit Alexander noted that Leda's response to his recommendations varied, including "my recommendations regarding the maintenance and the upgrading of sediment and erosion control devices, particularly those attached to historic approvals, were often not acted upon during the time I was environmental officer for the site."
This dilatoriness was reflected in Alexander's written reports. For example, in his report dated April 2014 he noted that: 1. in areas, particularly the COS, existing ESCs required maintenance; 2. ESCs had been installed between the existing roadway and the saltmarsh, however, the sedimentation fence was compromised in several areas and required maintenance; and 3. some soil stockpiles around the site required the installation of ESCs.
His report dated May 2014 repeated similar observations.
Second, Boyd Sargeant is an urban and environmental consultant who was the EO for the site between August 2014 and May 2015, and who inspected it on 62 occasions during the first summons offence period (see his affidavit dated 18 March 2020). After May 2015 he assisted on a casual basis.
During his inspections Sargeant relevantly observed that: 1. ESCs had been generally installed on the site; 2. most waterways observed appeared to be in a suitable and stable condition; 3. drainage from the active construction areas was being directed through controls prior to entering any water course; and 4. additional sediment basins were installed to address works and rainfall events.
But like Alexander, Sargeant also noted matters that required attention by Leda, including: 1. ESCs requiring maintenance, including some sediment fences that had been compromised in several areas; 2. some soil stockpiles around the site requiring the installation of sediment fencing or the maintenance of grassed buffers; 3. evidence of a decline or reduction in the coverage of certain protective vegetation; and 4. vegetation buffers for protected vegetation had not been installed.
There were a number of large rainfall events during Sargeant's time as EO and he noted that following these events it was common for ponding to occur within protected vegetation areas affecting the vegetation; for small sections of sediment basins to collapse and require repair; for sediment build up to be removed; and that additional sediment basins were required.
He stated in his affidavit that: In general I found that Leda was slow to act upon my recommendations relating to a number of sediment and erosion control practices. Specifically, recommendations in relation to the carrying out of management actions such as repair to sediment fencing, removal of sediment build up and repair of scour, were repeatedly noted only partially complied with. This resulted in the mobilisation of sediments and erosion in rainfall events.
The tardiness in maintaining ESCs was similarly reflected in Sargeant's reports. For example, in his report dated 9 September 2014 Sargeant noted that: 1. ESCs required maintenance; 2. ESCs had been installed between the existing roadway and the saltmarsh, however, the sedimentation fence was compromised in several areas and required maintenance; 3. some soil stockpiles around the site required the installation of sediment fencing or the maintenance of grassed buffers; and 4. there was evidence of the reduction and decline of saltmarsh rehabilitation area coverage.
His reports dated 15 October, 21 November, and 11 December 2014, 21 January, 25 February, 20 March, 22 April, 22 May, and 22 June 2015, repeated similar observations. For example, his 25 February 2015 report, he stated that the "small section of Sediment Basin 2 has collapsed as a result of rainfall events."
Sargeant noted that there were 20 rainfall events greater than 25 mm between August 2014 and May 2015, and that: For smaller rainfall events, less than 25mm no significant impacts to the environment were likely given the degree of containment provided on the Site. For rainfall events greater than 25mm, deposition areas were mobilised and/or devices such as sediment basins failed.
Sargeant expressed the view that the average surface water quality testing identified that the turbidity levels upstream of the site generally exceeded that of the protected downstream and concluded that, "this indicates that the suite of measures on Site provided for a level of containment of the mobilised sediments which reduced potential impacts and harm occurring".
However, Sargeant also stated that: Following large rainfall events over 25mm, there was movement of sediment or soil over the Site and occasionally into the saltmarsh area, within the site, between Dunns Drain and Piggabean Road. However, Site earthworks and the sediment and erosion control devices detained, directed and contained a proportion of stormwater and sediment movement during these rainfall events.
The failure of some of the ESCs following large rainfall events was recorded in Sargeant's reports, for example, in his 9 September 2014 report he noted that following a significant rainfall event, "detention basins overtopped as stormwater volumes exceeded the approved design capacity/structures design". This also occurred after the rainfall events on 17 and 28 August 2014. In his 21 January 2015 report he reported that ESCs contained and directed "the majority" - but not all - of stormwater during the rainfall event.
Nevertheless, Sargeant emphasised that he had only observed "significant movement of sediment across the site for rainfall events greater than 25mm". This is important because as the evidence discloses, it is the effect of rainfall events greater than 25mm which resulted in the movement of sediment off site and into the environment.
Third, Mills is an environmental and heritage consultant who was the EO for the site from June 2015, and who inspected the site on 102 occasions during the first and second offence periods (see her affidavit dated 16 April 2020).
Mills, who inspected the site on the greatest number of occasions, did not observe significant sediment or soil mobilisation and emanation from the site into the neighbouring environment. Rather, she observed: 1. that sediment basins were being regularly monitored and treated as required; 2. that waterways on site appeared to be in a stable condition; 3. that stockpiles on site had sediment fences erected around them; and 4. that drainage from active construction sites was being directed through appropriate treatment methods.
She deposed that: 32. If there had been any significant movement of sediment or soil over the Site, then I would have been evidence of this movement during my Site inspections. That is, I would have seen very obvious and significant accumulations of sediment in or around the Site, corresponding rills in any eroded areas, and sediment plumes in adjacent waterways. 33. I did not see any significant accumulation of sediment on the Site or in the environment surrounding the Site at any of my site inspections. I did not see any signs of significant erosion in or around the Site at any of my Site inspections. By significant, I mean any major slumps visible at the site; such as ridges collapsing into waterways, or sediment banks collapsing. I did not see any sediment plumes in adjoining waterways. 34. It any movement of sediment and erosion of the scale calculated by Mr Macleod had occurred, this would have also been reflected in the surface water quality samples which I took on the Site. 35. I did not see any results from the testing of the water samples what were consistent with the movement of sediment and erosion of the scale calculated by Mr Macleod. If I had, then I would have promptly notified Leda in my reports. 36. If 17,747 tonnes of sediment had mobilised from the site during the period from 31 July 2015 to 7 March 2017, then this would have been very obvious to me at the time. 37. If I had seen any sign of sediment movement and erosion on the sale calculated by Mr Macleod, then I would have immediately reported it to Leda, and included it in my monthly reports. Every week, including during the charge period for which I was the environmental officer at the Site, I observe people fishing and using crab pots in the waterways surrounding the Site.
Her monthly reporting also indicated that Leda was tardy to implement and maintain ESCs. For example, in Mills's report dated: 1. June 2015 she noted that: i. Sediment fencing around Wallum froglet compensatory habitat and saltmarsh areas needs to be completely reinstated. ii. Works being undertaken in proximity to Cobaki Creek need to include sediment and erosion screening e.g. floating bunds in the creek. 1. July 2015 she said that: i. Saltmarsh sediment fencing needs repairing (Refer figure 4). ii. Sediment basin 2 wall has collapsed and needs reinstating. 1. August 2015 she observed that: i. Need to replace sediment fencing along saltmarsh zone as a priority. ii. Sediment basin 2 eastern wall has collapsed and need to be reinstated also as a priority. iii. Dunns Creek is to remain free draining. 1. September 2015 she stated that: i. Need to replace sediment fencing along saltmarsh zone as a priority. 1. October 2015 she wrote that: i. Need to replace sediment fencing along saltmarsh zone as a priority. 1. November 2015 she said as follows: i. Although it is accepted that provided there is no discharge or overflow from the sites sediment basins into receiving environments prior no notification is required. However it is highly recommended that given the outcomes of the DoP (NSW) on site meeting, that the sediment basins are reduced in terms of the volumes of water they contain, that sediment basin 2 eastern wall collapse is rectified, that sediment basin 10 breach is rectified and that overall erosion fencing is repaired as per the requirements of the DoP (NSW) notification. ii. Need to replace sediment fencing along saltmarsh zone as a priority. 1. December 2015 she said that: i. The observations at (f)(i) are repeated. ii. Need to replace sediment fencing along saltmarsh zone as a priority. 1. January 2016 she observed as follows: i. Observations very similar to those at (f)(i) are repeated. ii. Need to replace sediment fencing along saltmarsh zone (east of Missing Link) as a priority. 1. February 2016 she wrote that: i. Observations very similar to those at (f)(i) are repeated. ii. Need to replace sediment fencing along saltmarsh zone as a priority. 1. March 2016 she said that: i. Observations very similar to those at (f)(i) are repeated. ii. Need to replace sediment fencing along saltmarsh zone as a priority. 1. April 2016 she stated that: i. Observations very similar to those at (f)(i) are repeated. ii. Need to replace sediment fencing along saltmarsh zone as a priority. 1. May 2016 she noted that: i. Observations very similar to those at (f)(i) are repeated. ii. Need to replace sediment fencing along saltmarsh zone as a priority. 1. June 2016 she observed as follows: i. Observations very similar to those at (f)(i) are repeated. ii. Need to replace sediment fencing along saltmarsh zone as a priority. 1. July 2016 she wrote that: i. Observations very similar to those at (f)(i) are repeated. ii. Need to replace sediment fencing along saltmarsh zone as a priority. 1. August 2016 she stated that: i. For the first time since November it is noted that there are no issues with the ESC and the observations at (f)(i) have been addressed. ii. For the first time since August 2015 the need to replace sediment fencing is not listed as a priority. iii. At this time the eastern wall of sediment basin 2 was reinstated. This had first been identified as having collapsed on 25 February 2015. 1. January 2017 she observed as follows: i. Observations very similar to those at (f)(i) are repeated. 1. February 2017 she said that: i. Observations very similar to those at (f)(i) are repeated. ii. Problems have been identified with the Saltmarsh (east of Sandy Road) sediment fencing needs repairing, replacement and extension.
In this context, it should be noted that during and after some significant rainfall events, either the site was not accessible and monitoring could not be conducted, or the site was closed for safety reasons, and therefore, inspections could not occur. This was the case, for example, on 28 December 2014; 23 and 24 January; 20 and 21 February; 22 July; 10 November; and 11 November 2016. In addition, there were periods when the site was shut down, for example, from mid April 2015 to late June 2015, when there were areas on the site that were left exposed.
Mills conceded under cross-examination that although sediment basins 1 and 2 would be pumped out into the surrounding environment when she asked for this to occur if heavy rainfall was predicted, they were not flocculated prior to them being emptied (T463:01-02). This meant that finer sediment remained entrained in the water column (T463:20-23). Accordingly, every time the basins were emptied, water was pumped into the surrounding environment containing fine sediment which was entrained in any stormwater during a significant (T478:41) rain event which moved through the site (T463:20-27, 478:38-42, 496:35-46).
However, because the sediment basins were 3 km away from any sensitive environment, 0.4 kms away from Cobaki Creek (T478:41-42), and the grade was relatively flat, Mills was not concerned about the finer sediment moving over the land (T463:29-34). Nevertheless, she agreed that sediment basins did not capture all sediment discharge on a site (T497:04-07) and conceded that she had observed turbid water entering Cobaki Creek (T468:22-24). But, she added, if the turbidity levels in a sediment basin were high and the basin was not capturing the sediment then the overflow would be moving downstream to a receiving environment that would also have elevated turbidity readings (T497:08-20) and this was not the case.
In respect of the saltmarsh ("that nationally recognised habitat", as she described it), Mills was concerned about the high turbidity levels in that environment. This was the reason why her first reaction was to ensure that there were ESCs on site (T497:32-35). The elevated turbidity levels did not necessarily, however, indicate that the ESCs around the saltmarsh were not working because of the tidal influence of Cobaki Creek that flowed into the saltmarsh, which was "very highly turbid in its natural state" (T497:30). Nevertheless, she agreed that ESCs had needed to be repaired in several places to the eastern part of the saltmarsh to reduce the expected sediment runoff entering the saltmarsh habitat (T498:10-17) and that it "took quite a long time for Leda to repair" sediment fencing around that part saltmarsh (T498:29-31). This was so even though the issue had been raised with Scotcher (T500:36-501:02).
Although there was evidence of sediment flowing into the eastern part of the saltmarsh based on turbidity levels (T501:13-15), Mills did not inspect the sediment fencing around the western part of saltmarsh at the bottom of Precinct 9 because she was asked not to monitor that section of the saltmarsh or any ESCs on site in that area (T492:39-41 and 501:35-41).
Finally, in relation to dust suppression, Mills agreed that there was just one water truck and that it did not cover the whole site or work on weekends or when the site was not operational (T502:48-503:41).

[35]

Conclusion on the Amount of Sediment Mobilised and Discharged by Reason of the Offending

Leda submitted that Macleod's evidence ought to be given very limited weight if for no other reason than the fact that he had used the wrong model, namely, RUSLE, as evidenced by the variation in his estimates across his affidavits.
However, during his cross-examination and re-examination, Matthew conceded that the MUSLE model was "intellectually intensive and requires a lot of work" (T268:41-42). The reasons why Matthew did not run the MUSLE model himself, despite it being, in his opinion, the only appropriate model, were those of cost and time (T281:20). Matthew explained that to run the MUSLE model properly in these proceedings would have taken in excess of two years (T281).
While the MUSLE model may have been the most accurate model to use it was prohibitive in terms of time and cost. In these circumstances, and in the absence of any real time historical data, using the RUSLE model, as undertaken by Macleod, was not an inappropriate method of providing an estimate of the sediment yield caused by the offending.
Leda further criticised Macleod by asserting that Matthew had demonstrated Macleod's calculations were demonstrably flawed and that his conclusions were inherently unreliable.
Under cross-examination, Macleod explained why he had run the model three times and obtained substantially different results on each occasion. It was because he had changed his methodology between his second and third affidavits consequent upon Matthew's peer review. In particular, he had adjusted the area of exposed disturbed land used in his calculations and this had altered his results (T109-110). In this context Macleod noted that Matthew had far more experience onsite.
Macleod explained his revised approach in re-examination (T116:34 -117:02): At paragraph 133 in my 28 June 2019 affidavit, I acknowledge this, and I say, "I acknowledge the figures in table 2", so these are the revised figures of the sediment mobilised, "are significantly less than what I calculated in my previous affidavit and this is primarily due to the amendments made to the R factor, LS factor, P factor and, in particular, the C factor, in light of the comments and the assessments made by Dr Matthew" and that's because I had very limited access to the site. I had limited opportunity to collect data. I was seeing the site well after the offences period and that makes it challenging because you're often relying on aerial photography or on the photography records from other evidence and other witnesses. I, upon receiving the affidavit of Dr Matthew, considered that, and I considered the evidence that he put forward and also took onboard the fact that he states in his affidavit that he's been involved with this site for a number of years, and so has a lot of knowledge of the site. I think that is part of the scientific process to take onboard a peer review of one's work and especially if that peer review, that person is likely to have a greater knowledge of things that are likely to input into a model like the RUSLE. So I took that onboard and redid my calculations. But I don't believe that that devalues the calculations in any way to take onboard professional criticism.
There is nothing wrong with Macleod accepting the peer review by Matthew and adjusting his figures accordingly. Doing so does not render his modelling "absolutely flawed" (T110:29-34).
Importantly, Matthew's own calculations demonstrate that Macleod's estimates are consistent with a C-factor of between 10% to 25% groundcover. The C-factor is the factor which is most open to subjective analysis because it considers what the ground cover was at any point in time. In cross-examination Matthew acknowledged that assessing the C-factor substantially later in time as he had done was fraught because "even the type of ground cover will change rapidly" (T275:07-13).
Macleod visited the site on 16 August 2017 soon after Leda had been charged. Matthew visited the site approximately seven to eight months later, on 6, 10, 11, and 17 April 2018. That is, Matthew's visit occurred ten months after Leda had been charged and after steps had been taken to revegetate the exposed area. Matthew acknowledged this in his first affidavit (p 28): In contrast, during my recent site inspections, most of the precincts in which bulk earthworks had been undertaken had been top soiled, revegetated or otherwise protected. I also know that there has not been significant works in between Mr MacLeod's inspection and my recent site inspections.
Matthew stated that he took this delay into account by removing areas of topsoil to expose the underlying material, but he acknowledged that he could not say with certainty what the ground cover was during the offence period (T275:37-49).
According to his second affidavit, Matthew carried out a "rock and sock" method of assessing ground cover. Again, as he acknowledged, "the time between the disturbance event and my assessment of soil coverage and that at the time of my assessment, the majority of the site had been topsoiled" (p 30).
Macleod was criticised by Leda for utilising a 43% to 57% ratio when assessing how much sediment flowed into the surrounding environment. Macleod explained his assumption that at least 43% of the sediment would not have deposited on site whereas the remaining 57% would have been trapped on site by the ESCs on this basis: To account for the fact that RUSLE "only predicts sediment entrained in the erosion process and does not predict sediment yields into particular sediment basins" I assumed that ALL sediment coarser than 0.02 mm was captured or settled out onsite and only the sediment finer than 0.02 mm would have been entrained offsite. This is inherently conservative, especially given my observations of sediment that included material assessed onsite by me as being coarser than 0.02 mm on lands or in waters beyond the site...
Macleod was cross-examined about the ratio (T110:50-111:24): Q The 57% is the coarser components of sediment that you say would have been trapped in the sediment control train on the subject site, is that the assumption you make? A Partly that is the assumption I make. The assumption that I made is that any sediment coarser than 0.02 millimetres which you've referred to as the coarse fraction of the soil would have been retained on site either in the erosion and sediment control measures or simply through natural deposition because that sediment is coarser it settles out more readily and so I have generously assumed that all of that sediment, 100% of that fraction coarser than 0.02 millimetres would have retained on site. Q You say generously because you know the converse is also not the case don't you? That is, you cannot say that the remaining 43% of sediment would necessarily have been exported off the site can you? A I can't say that 100% of that other 43% would have been exported offsite no. But therefore it balances out the fact that I don't think 100% of the 57% would have been retained onsite. Q But you don't know that do you Mr MacLeod? It's purely an assumption that you've made the 43 ‑ 57 ratio that you've applied? A Yes, unfortunately because you know in the nature of using these models that sort of assumption does need to be made. Q Yep‑‑ A And so I've made the assumption based on the soil data that we have.
Nevertheless, Matthew did not disagree with Macleod's assumption in this regard (Matthew's second affidavit at p 21): With respect to paragraphs 26 to 29 of Mr MacLeod's supplementary report, he acknowledges a key point that I stressed in my first report - that one of the main limitations of RUSLE is 'It only predicts sediment entrained in the erosion process and does not predict sediment yields into particular sediment basins'. I acknowledge Mr MacLeod's attempt to overcome this limitation by assuming all sediment coarser than 0.02 mm was captured or settled out onsite and agree that it is conservative.
This was confirmed orally (T277:28-47): Q You again say that you stress that RUSLE is only predict sediment entrained and then you say, "I acknowledge Mr Macleod's attempt to over" - sorry, I will read the whole paragraph. "With respect to paragraphs 26 to 29 of Mr Macleod's supplementary report, he acknowledges a key point that I stress in my first report, that one of the main limitations of RUSLE is it only predicts sediment entrained in the erosion process and not predict sediment yields, in particular sediment base" - I think that should be "basins. I imagine Mr Macleod's attempt to overcome this limitation by assuming all sediment coarser than 0.02 millimetres was captured or settled out on-site and agree that it conservative." On what basis did you agree this is conservative? A Because, at the end of the day, there may have been some settlement of the fine traction in the - on the site and there are locations, I have taken photographs in there, of what would be clays deposited in the Dunn's drain and the Dunn's drain area, but in terms of erring on the side of conservatism, as in identifying that if all these materials go off the site, that's the worst, conservative from the other respect, it's the worst case scenario, so based on that worst case scenario, that's - that's the way I viewed it as conservative. So, that was a concession that, "All right, we've looked at this and this is something that we can use", and I think I still use Mr Macleod's 43% myself in my own estimate.
To reiterate, in carrying out his own calculations of sediment flowing from the site in his second affidavit Matthew used the same assumption as Macleod, namely, that 43% of sediment was not entrained in ESCs on the site (p 38). So too did one of Leda's EO, namely, Mills, (see generally at T462-468).
These statements are consistent with Matthew's opinion (expressed in his second affidavit) that during large rainfall and run-off events erosion would occur on the site and sediment would discharge into Cobaki Creek and the surrounding environment.
Matthew gave the following further evidence in cross-examination (T277:49-278.8): Q So, please correct me if I'm wrong, Dr Matthew, so, do you agree that it's a valid assumption that a percentage of the sediment would have left the site? A That's without doubt. Q Sorry? A That's without doubt. Q Without doubt? Do you agree that it is more likely the finer sediment which has left the site? A That's right.
His conclusion was unequivocal (T281.05-08): Q In your opinion, from the models you did run and your observations of the site, in your opinion, during the period from 2014 to 2017, did sediment leave the site? A Yes.
I am satisfied, that the assumption that 43% of sediment was not captured by ESCs and mobilised off site should be accepted. Any evidence that some of the finer sediment remained on site does not invalidate the assumption. The assumption is made for the purpose of calculating an estimate. There is nothing impermissible about this approach.
As Macleod recognised, an assessment of sediment mobilisation caused by the offending was difficult due to the lack of baseline data against which a meaningful before and after comparison could be made. Matthew was of the opinion that any assessment of historical sediment mobilisation on the site before it was at or near as constructed survey levels, was impossible because the data did not exist and could not be collected. He was therefore critical of Macleod's attempt to quantify historical sediment mobilisation in the manner in which he did.
But this does not mean that Macleod's opinion should not be accepted. Put another way, it is not a complete answer for Leda to simply state that there is no pre-existing data, and therefore, any attempt to estimate likely or actual sedimentation caused by the offending conduct cannot meet the criminal burden of proof. Were it otherwise, in the absence of clear baseline data there could never be a finding of environmental harm, either actual or likely, in any proceeding for environmental crime.
But given the fact that each time Macleod ran the RUSLE model a different set of results were produced, and in light of the sustained criticisms made of Macleod's methodology by Matthew, not all of which were answered by Macleod, I am unable to accept Macleod's calculations of the quantum of sediment mobilisation. I am fortified in this view by the greater accuracy of Matthew's RUSLE inputs and his ground truthing of his assumptions by conducting on site tests and analyses.
I consider that the preferable course is to find that sediment was mobilised offsite by the offending conduct, as all experts accepted and as the evidence discloses, but to adopt Matthew's calculations as to volume in this regard. This approach is consistent with the evidence of Shaw, Bewsher, the EOs, and the Biome Report, all of which noted issues with the ESCs present on site, and some of which observed sediment laden water leaving the site.
The prosecutor submitted that when calculating the quantum of mobilised sedimentation, adopting a C-factor of 50% would be inconsistent with the evidence and the findings made by the Court in Leda (No 4), and that using a C-factor of between 10% and 25% was a more realistic reflection of the amount of groundcover on the site during the offending. But in light of all of the uncertainties inherent in Macleod's evidence, the evidence of Bewsher, Shaw, the EOs, and the Biome Report, concerning the generally reasonable efficacy of the ESCs on the site, I do not accept that there is sufficient evidence to the requisite degree to adopt, as a minimum, a C-factor of 10% or 25%.
I am therefore satisfied that, at a minimum, as calculated by Matthew, 4,891 tonnes of additional sediment mobilised off site into the surrounding environment.
The prosecutor urged upon the Court a finding that, at a maximum, again as calculated by Matthew, 14,569 tonnes of additional sediment mobilised and flowed into the surrounding environment (based on a C-factor of 10%). But again, having regard to the totality of the evidence before the Court on this issue, I am not prepared to make such finding beyond reasonable doubt. Rather, the evidence is more consistent with a C-factor of 25% (which is in conformity with the findings made in Leda (No 4) as to the cleared area). I am therefore satisfied that, adopting Matthew's calculation, a maximum of 9,690 tonnes of additional sediment mobilised and flowed off site into the surrounding environment as a result of the offending.
In summary, I find that between 4,891 and 9,690 tonnes of sediment mobilised off site and into the receiving environment as a result of Leda's unlawful conduct.
The next question is what, if any, harm resulted from this mobilisation?

[38]

Evidence of Davis

The prosecutor relied upon the evidence of Davis, a scientist specialising in the field of aquatic ecology and environmental management, who affirmed affidavits on 30 July 2019 ("first Davis affidavit") and 19 May 2020 ("second Davis affidavit"), to which were attached various reports.
The conclusions contained in Davis's Revised Aquatic Impact Assessment Report Assessing the impact of Cobaki Estate Clearing and Bulk Earthworks Undertaken 21 April 2014 and 7 March 2017 attached to his first affidavit ("Revised Report") were relevantly for present purposes as follows: 1. As part of an investigation by the Department of Planning and Environment, I undertook an assessment of the potential impacts of sediment releases from the Cobaki Estate development on the associated environment. A combination of literature review, GIS, aerial imagery, site photographs, site investigations and laboratory analyses were undertaken between the 18 September and the 15 October 2017. 2. Significant damage occasioned by migration of sediment appears to have occurred to the Saltmarsh communities adjacent to the site, particularly south of Precinct 9. These areas displayed significant infilling of orange to reddish sediment over a darker sublayer. Aerial imagery taken over the period clearing, and bulk earthworks were undertaken, shows distinct smothering of Saltmarsh areas between 21 April 2014 to 7 March 2017. Mangroves did not appear to vary in spatial coverage temporally, through there was some evidence of bank erosion, immediately undercutting adjacent to drains that flowed into Cobaki Creek. Assessments of seagrass impacts were not possible due to poor visibility during site inspections and it is unlikely that seagrass establishment was at all possible during the period between 21 April 2014 to 7 March 2017. 3. Measurements of sediment plume range from available imagery, within the Cobaki-Broadwater interface, following storm events suggest that the sediment loading, and range increased over the period defined in the scope of works. Turbidity measurements, when compared with those taken prior to 2012 strongly suggest sediment loading has increased. So too has the ability of that sediment to be resuspended by wind, leading to inconsiderable declines in the photic depth and water quality. Previous reports have highlighted the sensitivity of this environment to sediment and nutrient inputs.
Davis further concluded that (pp 28-29 of his Revised Report): …with a large portion of this sediment entering Cobaki Creek via the drainage outlets, it is highly likely that this sediment was deposited within the Broadwater-Cobaki within the extents of the April 2015 plume...This is further emphasized by the salinity level (Table 1), clear deposition zone, and lack of a defined channel from the mouth of Cobaki Creek connecting to the main creek channel and outlet to the ocean. Thus, suggesting that the highest impacted area is within this deposition zone.
This was further explained in his report entitled Supplementary Report: Aquatic Impact Assessment annexed to his first affidavit ("Supplementary Report") (p 24 of his Supplementary Report): 20. Data from Planit (2014) demonstrates that sediment laden water flowing from Cobaki creek catchment, generally settles within the Broadwater. Thus, of the 15,920 tonnes of sediment estimated by MacLeod (2019) to have been removed from the site has been either deposited in the Cobaki Broadwater upon mixing with more saline water or distributed across adjacent saltmarsh habitat upstream of the Broadwater and adjacent to the Cobaki construction site. Sediments are then retained within the Broadwater because of complex hydrodynamic processes varying substantially to currents upstream within Cobaki Creek and the downstream nexus zone (Hydrosphere 2017 and Figure 27). 21. Further reinforcing this, aerial photography available for the alleged period indicated sediment was retained within the Broadwater and did not reveal sediment plumes extending into this zone (Hydrosphere sample site 10). Refer Figure 28 for sediment plume and accretion images of this report.
Davis's written evidence was reinforced by his oral evidence whereupon he elaborated upon the plumes of sediment laden brown water in the Cobaki Broadwater visible in the sediment deposition zone in Nearmap aerial photographs. Thus: 1. first (T137:45-49): A So what I've tried to demonstrate in it is the actual extent of the sediment plume and the accretion rate, so just to demonstrate that there is no sediment plume past these points throughout the ‑ or prior to the period and during the period based on the aerial imagery that was available at the time. 1. second (T139:30-36): A …So again what I'm referring to in these photographs is the sediment deposition zones so rather than the changes in sediment structure which is going to happen in that area because of the movement, merely to demonstrate that the deeper channels to the east or the right of the yellow zone are clearly defined in all of the photos. You can see where the sediment has been deposited within that Cobaki and Broadwater which was the reason for these photographs within this report. 1. and third (T151.28-37): Q You also referred when you were giving evidence in relation to these that you were looking at the sediment deposition zone. A Yes. Q What do you mean by that? A So the zone where the sediment transports down the waterway and is deposited within an area, so meaning when it hits the saltwater it coagulates which means it binds to other material and drops down, gets heavier and drop down into the water column. So the deposition zone is where all that sediment is likely to accrete will be deposited.
In short, Davis's opinion was that sediment was likely retained and deposited within the Cobaki Broadwater in the identified sediment deposition zone.
Leda, on the other hand, relied upon several experts to contend that any sediment discharged from the site as a consequence of the offending was either of insufficient magnitude to be detected, or due to the hydrology of the receiving waters was rapidly washed into the lower Cobaki Estuary and then into the ocean.

[40]

Evidence of Bewsher

Leda's hydologist, Bewsher, expressed a similar opinion. Among other things, Bewsher was retained by Leda to provide expert evidence on the pollutants that may have been exported from the site as a consequence of the offences the subject of the first and second summonses and the potential for those pollutants to cause environmental harm beyond the site.
Significantly, Bewsher's evidence included hydrologic modelling of the catchment flows into the Cobaki Estuary. His calculations established that a large portion of the sediment was discharged from the site when flows in Cobaki Creek were at a level sufficient to overcome the incoming tide. Consequently, in his first report he concluded that, "any sediment discharged from the Site during the Offences Period was either of insufficient magnitude to be detected or was rapidly washed into the lower Estuary and then out to sea" (p 3).
Experts for both parties had regard to the water quality monitoring data collected in the Cobaki Broadwater on behalf of the Council over a five year period, expecially to the measurement of TSS collected as contained in the report by Hydrosphere Consulting, Cobaki-Terranora Broadwater and Terranorra Creek Water Quality Assessment Draft Report dated February 2017 ("Hydrosphere TSS data"). The relevance of the Hydrosphere TSS data is explained more fully below.
Bewsher used water clarity as the hydrological parameter against which he made an assessment as to the environmental health of the receiving environment and the environmental impacts of the sediment discharge. Bewsher focused on TSS, a major factor in water clarity, as the primary driver of the potential for environmental harm within Cobaki Creek and other downstream areas in the Cobaki Estuary.
In his first report he expressed the following opinions: 1. sediment loads discharging from the site into Cobaki Creek during the offence periods must have increased beyond the loads that would have occurred if construction activities within the site had been conducted in accordance with condition 21A of the Project Approval; 2. during the offence periods, two thirds of the monitoring sites experienced increased TSS levels and the other third experienced reduced TSS levels. The two monitoring sites immediately downstream of the site recorded reductions in TSS levels. The normal variability in the TSS data which occurs in the Cobaki Estuary is so large that the changes due to additional sediment loads do not appear to have made any significant difference, or where differences did occur, it was difficult to attribute these directly to activity at the site; 3. on numerous occasions outside of the offence periods since 2008, the TSS values within the Cobaki Estuary exceeded the water quality objective of 10mg/L stipulated by the 2010 Coastal Zone Management Plan for Cobaki Broadwater, particularly downstream of the site within Cobaki Creek and the Cobaki Broadwater where the TSS objective was almost always exceeded; 4. any sediment discharged from the site during the offence periods was either of insufficient magnitude to be detected or was rapidly washed into the lower Cobaki Estuary and then out to sea; 5. the potential for sediment mobilised from the site into Cobaki Creek to remain in suspension due to semidiurnal tidal movements, and then to be quickly washed out to sea, may have contributed to the absence of significant TSS impacts in the Cobaki Estuary during the offence periods; 6. the information obtained from the inspections on site suggested that significant discharges of sediment were unlikely to have occurred during the offence periods. The absence of any observation of such discharges, and to a lesser extent, the absence of aerial photographs and complaints observing such discharges, supported this view; 7. about 80% of the sediment discharged from the site would have occurred when the flow of Cobaki Creek was 5m3/s or stronger. These flows were more than sufficient to overcome the peak on an incoming tide and would contribute to the rapid disposal of sediment into the lower parts of the Cobaki Estuary and out to sea; and 8. on average there was about 127 tonnes of TSS in the relevant areas of the Cobaki Estuary and about 37 tonnes of TSS within Cobaki Creek and the Cobaki Broadwater. Approximately 7,300 tonnes of TSS were transported out to sea from the Cobaki Estuary on average every year, of which about 280 tonnes originated from Cobaki Creek. In other words, this was a receiving environment where sediment was already present.
Bewsher reviewed a number of documents recording observations and comments relating to the quality of water leaving the site and entering Cobaki Creek, including the reports from the EOs. He noted the following: 1. there were occasions where deficiencies in the ESCs on the site caused sediment to leave it or created the potential for this to occur. Nevertheless, in every case the quantum of sediment appeared to be very small and the sediment discharges were almost always on the edge of the saltmarsh, and not directly into Cobaki Creek; 2. there were, however, numerous occasions when the EOs' reports stated that sediment fences needed maintenance and this was not undertaken by the time of the next monthly report. In one persistent example, there was a small gap in the sediment fence adjacent to the saltmarsh; 3. while the Biome report identified improvements that needed to be made to sediment fences, it reported that the fences were "in good condition with limited accumulation of sediment evident"; 4. the Biome report also noted that the fences adjacent to Dunns Drain had not been located at the base of batters but rather towards the top, leaving the portion of the batter downslope of the fence unprotected. However, Biome's list of recommended actions did not include relocation of the fences to the bottom of the batter; and 5. there were no observations or reports of sediment leaving the site and entering Cobaki Creek except in very minor quantities. There were no reports by residents of significant sediment runoff from the outlet of Dunns Drain into Cobaki Creek.
Bewsher did not consider the deficiencies in ESCs to be unusual given the size of the site and he opined that sediment discharges from the site were unlikely or, if they did occur, were not a frequent occurrence and took place during heavy rainfall events. Bewsher was also of the opinion that the topography of the site tended to promote deposition of sediment within it and that the ESCs that were in place, despite being deficient in some instances, were sufficient to mitigate significant export of sediment from the site.
In Bewsher's second report, he noted that: 1. TSS values in the Cobaki Estuary were generally lower during the period of the first summons despite significant rainfall occurring; 2. during the period of the second summons when less rainfall would have produced less sediment exports from the site, higher TSS values were observed in the Cobaki Estuary; and 3. these values were likely to be the result of rapid flushing of sediment out to sea as a result of higher runoff flows within the Cobaki Estuary, including from those catchments beyond the site.
Bewsher further stated that the results of his analysis of the TSS levels in the Cobaki Estuary during each offence period indicated that any sediment discharged from the site was either of insufficient magnitude to be detected or was rapidly washed out to sea. He also observed that during the period of the first summons, extra flushing produced by higher runoff flows was sufficient to deal with the additional sediment entering the Cobaki Estuary from the site and other catchments.
Bewsher was cross-examined about the reliability of the Hydrosphere TSS data. He accepted that there were a number of unknown variables concerning the testing and collection of that data (T246:03-246.39): Q In relation to the TSS testing by Tweed Shire Council, we know from your annexure L what day the testing was done each month; that's correct? A Yes. Q We as has already been discussed we don't know what time of the day the testing was done, that's correct? A That's correct. Q We don't know when the monitoring occurred relative to tides in the estuary and Cobaki Broadwater do we? A Because we don't know the time of day we don't know what the tide was doing at the time the monitoring was taken and there are 16 sites on that map Ms Single and the monitor at all the 16 sites did not occur at the same instant of time, supposedly somebody moved around and took them so there's a difference there as well. Q Yes. And we also don't know if we looked, taking specifically TES13, TES14, TES1 being in the Cobaki Creek and Broadwater, we also don't know when the monitoring occurred relative to wind do we, there's no data recorded? A There is one wind data available but because we don't know the time of day we can't use that to understand what the wind was. Q And in fact without any of that information, wind, times, tides, and rainfall events, we actually, this TSS testing can't give us any information about the water quality relative to a runoff event of Cobaki site can it? A No I don't agree with that. There are a huge number of readings and I agree we don't know the time of day that the reading was done so we don't know the tide and we don't know the wind but the data is useful because there is so much of it. There's if I take you to - the jury, sorry for that delay Ms Single I just want to find the right paragraph but on page 2 which is my executive summary I actually list the over the offences period the 36 months, there were 560 measurements and beyond that there's 1,538 measurements. Now I agree we don't know the time of the day each one of those occurred but the fact that there are so many measurements mitigates against that issue.
In an attempt to elicit evidence to the effect that in the absence of a comparison between the TSS and run-off events, the Hydrosphere TSS data was unable to indicate anything about the water quality in Cobaki Creek or Cobaki Broadwater, Bewsher said (T249:17-250:17): Q Yes, but it doesn't tell us anything relative to the run-off event, does it? A Maybe - maybe it would help if I explain - I mean, when an amount of water comes out of Dunn's drain and goes into Cobaki Creek, it doesn't suddenly disappear. It goes into a huge body of water, the estuary. It's a little bit like a bath tub. It acts as a buffer. So, the influence of that water is retained within the estuary for a period of time, a considerable period of time. I mean, if we have a heavy run-off event, you know, on an afternoon, a couple of days later, the effects of that would still be apparent in the estuary subject to various effects. Those effects are the amount of run-off that's happening. Obviously, run-off when it comes out of the catchment, it flows through the estuary and goes out to the sea. So - and, depending on how much run-off, that would affect the period of time, but it won't all disappear out to the sea in an hour, even if a huge event. There is tidal mixing going on. I mean, every day, the tide comes in and out twice and there's mixing that takes place in the estuary. So, the effects of the sediment washed into Cobaki Creek are mixed into the estuary and the estuary is monitored at 16 locations. I agree, only monitored once a month on the day there, but the effects of the sediment will be evident in the estuary for a number of days normally. That's what I would say. I mean, it depends on the amount of flushing and how fast it gets flushed out to sea. Just for the fact that, you know, the rainfall event happens at 4 o'clock in the afternoon and the measurement is not done till 6 o'clock is largely irrelevant, I think, because of the buffering effect that happens in the estuary. Q Mr Bewsher, isn't it the point where you say the sediment can stay in the estuary in the Cobaki for a number of - a period of days, but if the rainfall occurs - a rainfall event occurs immediately after the TSS testing, you've got another month until the testing occurs again, so not just a matter of days, there's whole another month-- A Yes - Q --before it's tested again. So, isn't that inherent unreliability with the TSS data? A That is a normal of unreliability and I would agree with what you said, that if the testing [happens] at a certain time and the run-off event happens after that, there is no way that that test will have any knowledge of that run-off event. That's obvious. Q Yes. So, without somebody having undertaken the task of mapping TSS testing compared to run-off events, the TSS testing can't tell us anything about the water quality in Cobaki Creek or Cobaki Broadwater relative to a run-off event from the site, can it? A No, I don't agree with that. I think you've given me that question before. Your question to me was it can't tell you anything. I don't agree with that. I think it does tell you something and the more the measurements - the more measurements there are, the less the uncertainty in the conclusions drawn from those measurements. If there were only a few measurements, they would - there would be more uncertainty, but there's so many of them and there's - there's many sites as well and you've got to remember that water takes time to travel from one site to another site. So, the effects of latent, if that's the right word, in the estuary for some time. I wouldn't say that that time is weeks or months, but, certainly, days.
Bewsher was asked why, when there was a greater area of exposed land and higher rainfall in the first summons period, the TSS levels were lower than for the second summons period. His response was as follows (T257:08-45): A ...In offence 1 period, there's a higher sediment load coming into Cobaki Creek and, yet, there's a - lower recorded TSS levels in the estuary. Now, on face value, that doesn't make sense, but I believe it does make sense and I'm tempted to explain that in - that's why I think this is the nub of the issue - but in paragraph 27 on page 8 of that affidavit, I explain that there's competing forces, if you like, or competing influences going on there. Whilst there's more sediment load going into the estuary from the site, there's also more run-off coming from the local catchment. So, there's no potential to wash that sediment out to sea. So, I believe that is the reason why, despite there being more sediment load, the recorded TSS levels are a little bit lower rather than being higher and the reverse happens in offence period - the offence 2 period. Q You see, Mr Bewsher, what I was trying to take you to, and I apologise for doing it prematurely, was paragraph 25D of your report on page 8, that, in fact, in offence period 1, had the higher number of intense rainfall periods, as well, didn't it? A Yes. Intense rainfall periods as reflected in the higher flows, both coming off the site, that's in Dunn's drain, but also, the higher flows within Cobaki Creek itself which is very important, because it's that flow from Cobaki Creek that has the potential to carry the sediment through the estuary and out to the sea. I mean, if it was just coming off the Leda's site on its own and there was no other flows happening within the - run-off flows, I'm talking about - happening in the estuary, then you wouldn't have seen that effect. You would have seen higher TSS levels in the estuary. That's my opinion. Q Mr Bewsher, aren't you just trying it make an explanation for data, being the TSS data which inherently doesn't make sense in this situation? A No. So, figure - on page 18, and I apologise if this is too technical, but that figure on page 18 explains these numbers, I think, and explains these different effects. You can see that there's - in offence period 1, there's almost twice as much run-off coming from the upper Cobaki Creek catchment than there is in offence period 2. So, there's a much, if you want to call this flushing, there's much greater potential to flush the sediment away rather than to retain it in the estuary and that's a very important affect.

[43]

The Use of the Hydrosphere TSS Data and the Flow Modelling

As discussed above, Bewsher placed significant weight on the Hydrosphere TSS data in concluding that the sediment moved through, and was not deposited in, the Cobaki Estuary. This was because there were no significant changes in the TSS levels during the period of the offences.
Davis also had regard to the TSS testing and explained the limitations of this data (pp 26-38 of his Supplementary Report): 25. Tidal movement also plays a major role in suspended sediment movement, with finer grained sediment being retained within the water column for longer periods of time and moves up and downstream with tidal movement until reaching the Broadwater and dropping out with increased salt content (Macleod 2017). The sediment likely discharged from the site contains a high portion of fine/silty clay material (Macleod 2017; Macleod 2019). 26. Tidal movement within Cobaki Creek means that sediment is pushed upstream with incoming tides, and further downstream on outgoing tides. Macleod's Affidavit dated 25 October 2017 Annexure A [18] and again in his Supplementary Affidavit dated 28 June 2019 referencing Landcom (2004) explaining that dispersed soil particles can stay in suspension for very long periods, sometimes indefinitely, but will settle out if they mix with saltwater. In my affidavit dated 20 December 2017 Table 1, I noted salinity and Electrical Conductivity was higher at the mouth of the Cobaki Broadwater "the Cobaki-Terranora Broadwater system is tidal, and the results of that study were subject to considerable error since the sampling time did not consider the state of the tide. The current study which does not account for tidal state is subject to the same level of error. As time of sample collection was not recorded, it is not possible to correct for this error" (Hydrosphere 2017). 27. Data therefore cannot be utilized to extrapolate cause and effect. That is, with tidal range between 1-2m, there is significant volume of water continuously moving up and downstream in sync with tides, which means at the peak of high tide potential sediment laden runoff from the Cobaki Estate development site will be further upstream. The opposite is also true, and at the peak of low tide potential sediment laden runoff from the Cobaki Estate development site will be further downstream, although ultimately is deposited downstream within the Cobaki Broadwater and beyond. 28. This confounds water quality results because the "upstream, or reference site" (site TES 13) is likely to be affected by material from further downstream during incoming or high tides by either runoff from the Cobaki Estate site, or in the vicinity of the drainage discharge points (Figure 16). This is further convoluted by rainfall, which flushes out the system, and pushes water downstream, creates haloclines (salinity stratification) and thermoclines (temperature stratification) among other anomalies. 29. Section 4.12.1 (Hydrosphere 2017) also states that there was no targeting of rainfall events, and several major rainfall events were missed which are the high-risk periods for runoff events. TSS were consistently highest in Cobaki Creek and its Broadwater. Data therefore cannot be utilized to explain alleged impacts of runoff associated with the Cobaki Estates development site, nor can data definitely be used to represent 'naturel', 'existing' or 'background' levels within the creek of Cobaki Broadwater because at the time of assessment, there were potential non-natural inputs into the nature system, namely Cobaki Estate development and bulk earthworks. … 35. Section 4.12.2 ABER (2012) highlighted the failure of the routine monitoring system used for this water quality assessment report to capture significant runoff events to adequately assess the impact of TSS in the Cobaki Broadwater System. It is highly likely that periods of high TSS migration were missed over the course of this study. … 38. There is no adequate data available to assess the quality of water at any background sites, which would be considered truly representative of reference water quality points during the alleged period of offence.
Bewsher accepted that there were a number of unknown variables concerning the testing and collection of the Hydrosphere TSS data. In particular, although the date of each test sample was known, neither the time nor the tide and wind conditions were. Similarly, when the testing occurred relative to any specific rainfall event was also not known.
Nevertheless, he relied on the fact that because of the large number of TSS readings, the data would capture any changes in the receiving waters irrespective of the timing of its collection (T246:30-38 and 248:16-20). This was relevant in circumstances where the breach by Leda was contended to be sizable and sustained.
Absent knowing the precise time of the TSS testing, it is not possible to establish the effect of tides or rainfall events with any precision. This is important because a critical factor in assessing whether sediment flowed from the site into the waterways is whether a rainfall event had occurred. It is not known, for example, whether testing occurred before a storm event, which meant that even short term harm to the Cobaki Broadwater and Estuary was not captured in the data. Once the sediment moved into the Broadwater and settled to the bottom, it became part of the Broadwater in a way that was likely to cause environmental harm as explained by Davis. For this reason, the Hydrosphere TSS data must, in my opinion, be treated with caution.
Significantly, Bewsher acknowledged that he had not considered the possible effect of the Cobaki Broadwater as a sediment deposition zone and the possible effect of a heavier freshwater run off containing sediment mixing with the saltwater of the Cobaki Broadwater (T239:38-240:09): Q And isn't it the case that Cobaki Broadwater acts as a sediment deposition zone in this area where the fresh water from Cobaki Creek meets with the saltwater from the ocean with the tidal fluctuation? A That may well be the case. It's not something that I have particularly turned my mind to in the material that I've presented. Q And when I say a sediment deposition zone what would be your understanding of that? A A zone where sedimentation takes place. Q And when sediment in freshwater mixes with the saltwater the saltwater acts as a flocculent doesn't it for the sediment in the freshwater? A Yeah that's actually something I haven't turned my mind to. It's not something that I'm particularly well acquainted with so I'm not sure I can answer that question. Q So Mr Bewsher not taking this as a criticism but have you given any thought to whether or not sediment laden water coming into a broad water, Cobaki Broadwater, could have been flocculated with saltwater in the broad water? A In these proceedings no. That wasn't part of my instructions, I haven't looked at that issue.
Bewsher had not considered these matters when analysing the flow dynamics that he had modelled for the catchment areas running into Cobaki Creek (T254:33-254:43). In this context, it was therefore not correct to submit, as Leda repeatedly did, that Bewsher's conclusion that any sediment being mobilised offsite and into the Cobaki waterway would have washed out to sea based on his hydrological modelling was unchallenged by the prosecutor. Bewsher plainly acknowledged that he had not considered the Cobaki Broadwater acting as a sediment deposition zone (see generally T239-240).
Because Davis was the only expert who took into consideration the effect of the tides and the timing of the testing when analysing the Hydrosphere TSS data, his approach to the TSS testing is generally to be preferred. Therefore, while it must be accepted that there is no evidence of any sustained elevation of TSS in the Cobaki Estuary across any given day, a cogent explanation for this is because, as Davis opined, sediment moved from the site during run-off events caused by rain and flowed into Cobaki Creek and into the Cobaki Broadwater, where the Broadwater acted as a sediment deposition zone.

[44]

Use of the Nearmap Aerial Images

As explained by Davis, the Nearmap aerial photographs were of assistance in understanding where in the waterway sediment was, if at all, being deposited. The Nearmap images were, however, of lesser assistance in determining whether there were significant sediment discharges when there was rainfall that could lead to a run-off event from the site.
By contrast, Bewsher relied upon the Nearmap aerial photographs as evidence of a lack of significant sediment discharge into the Cobaki Broadwater. Bewsher analysed the photographs by noting the total rainfall in the preceding 5 to 10 days before each image was taken.
However, his evidence did not disclose when the actual rainfall events occurred within each of the 5 to 10 day periods, and in cross-examination Bewsher accepted that only a limited number of the Nearmap photographs taken followed rainfall events of more than 10mm in the preceding 10 days (T233:45-234:18). As he agreed, it was the intensity of rainfall that led to "run-off events" (T231:32-33). For these reasons, less weight can be placed upon Bewsher's analysis of the Nearmap aerial photographs than that of Davis.
Furthermore, because Bewsher had not contemplated the role of the Cobaki Broadwater as a potential sediment deposition zone, this consideration had been omitted from his analysis of the Nearmap aerial photographs. This omission was evident from the fact that when taken to specific photographs, he acknowledged that they showed more turbidity in Cobaki Creek and the Cobaki Broadwater than further downstream in the Cobaki Estuary (T237:45-238:5).
In my view, Davis's evidence and the Nearmap aerial photographs show that parts of the Cobaki Broadwater have the potential to act as a sediment deposition zone. This was demonstrated by the plume depicted in the photographs identified by Davis. The temporal proximity of the photographs show the plume clearly located in the Cobaki Broadwater; not further downstream. The difference in colour between the plume and the receiving waters cannot be due to changes in depth because the discolouration is too uniform. The photographs support the conclusion that a natural sedimentation zone exists with the Cobaki Broadwater.

[47]

Conclusion on Deposition of Sediment in Cobaki Receiving Waters

There is no doubt that there was sediment mobilisation from the site into the receiving waters of the Cobaki Broadwater. If nothing else, this is plainly visible from the Nearmap aerial photographs. Not all of what is seen in those photographs can be explained by other sediment entering the waterway after a significant rainfall event. Such a conclusion is not wholly refuted by the Hydrosphere TSS data for the reasons provided by Davis. The fact that Bewsher did not consider (because he was not asked to) whether sediment laden water coming into Cobaki Broadwater could have been flocculated with saltwater and deposited in the sediment deposition zone, means that Bewsher's modelling is not inconsistent with a finding that some of the sediment was deposited into the Cobaki Broadwater and settled there.
Based on the totality of the evidence before the Court I am also satisfied that some of the mobilised sediment settled in the identified deposition zone. This conclusion is based on Davis's evidence, including the Nearmap aerial photographs that clearly showed increased turbidity in Cobaki Broadwater and Cobaki Creek, and the core sample analysis undertaken by him. That Matthew and others did not obtain the same core sample results does not preclude such a finding being made. I note that this conclusion is consistent with the evidence of Warren, Leda's ecologist, who conceded as much in cross-examination (T386:33-36).
Having said this, I nevertheless find, based on the evidence of Bewsher, that a proportion of the mobilised sediment would have, as Bewsher's hydrological modelling indicates, been suspended in the Cobaki waterway and ultimately was washed out to the ocean. In this regard, I note that Bewsher's evidence was consistent with that of Matthew and Martens and, importantly, the findings of the Court as to the amount of sediment that mobilised off site. Even accepting the limitations inherent in the Hydrosphere TSS data discussed above, I nevertheless find Bewsher's analysis of it sufficiently persuasive. While some of the criticisms of the Hydrosphere TSS data are valid, the large amount of data permits a sufficient degree of confidence in the opinions that Bewsher expressed in respect of it. In this context, it is significant that there was no expert evidence responsive to Bewsher's hydrological modelling provided by the prosecutor.
In summary, I am satisfied that of the sediment that mobilised off site due to the offending, some was deposited and settled in the Cobaki Broadwater in the sediment deposition zone and some remained suspended and was washed out to sea.
Of the sediment that mobilised off site, it is impossible, however, to state how much sediment settled in the sediment deposition zone, and how much was washed out to sea.

[50]

Evidence of Davis

Davis conducted a site inspection on 19 September 2017, more than two years after the offence period for the first summons and more than six months after the offence period for the second summons. The passage of time between the offending by Leda and Davis's observations has been taken into account in assessing his evidence.
Davis's opinions as contained in the reports annexed to his two affidavits may be summarised as follows: 1. significant damage was occasioned by migration of sediment to the saltmarsh communities adjacent to the site, particularly near Precinct 9; 2. aerial photographs showed distinct smothering of areas of saltmarsh between 21 April 2014 and 7 March 2017; 3. measurements of sediment plume in the Cobaki waterway from the available imagery following stormwater events and turbidity measurements suggest sediment loading and range increased over the relevant period; and 4. it was highly likely that significant environmental damage was caused to the areas associated with runoff from the site, which would impact a range of nutrient cycles and food webs, including migratory birds protected under international agreements.
Davis carried out a site inspection on 19 September 2017, where he observed (Revised Report at p 20): Sediment inflows of similar consistency and colour as the soil from the development site were widespread, particularly in the low-lying areas of the Saltmarsh. This sediment layer appeared to smother Saltmarsh plants and was visibly different to the neighbouring Saltmarsh areas.
This was consistent with his analysis of the Nearmap aerial photographs and photographs taken on the site. That sediment clearly originated from the site and polluted the saltmarsh was explained by Davis (see his Supplementary Report pp 6 and 7): Soil Colour is broadly accepted within the erosion and sediment control and environmental science industries as a useful indicator of not only general properties of soil, but also as an indication of some chemical processes (IECA BPESC cited 2019; Moody 2008). Colouration of the deposited material is typical of soil found on the Cobaki site, which is immediately adjacent to the saltmarsh. Figure 5 a-f of my Affidavit 20 December 2017 clearly demonstrates the extent of impact across the saltmarsh site. Images are reproduced in this report (Figure 3). Not only do these correlate with earthworks, but also the colouration of soil expose during earthworks clearly coincides with the change in colour within the saltmarsh habitat (Figure 1). Personal observations during my site visit (Figure 7) confirmed sediment deposition extent, and colouration observed in aerial imagery.
He further stated in his Revised Report that (pp 48 and 49): There is strong evidence to indicate that significant volumes of site sediment are impacting the salt couch Environmental Protection Area and rehabilitation area south of precinct 9 … I estimated within the zone 7 polygon that after approximately 28 hectares of saltmarsh habitat is likely to have been affected in some way by increased sediment. Of this 28 hectares of potential impact area I have estimated that up to 80% of the site has been affected by sedimentation, smothering saltmarsh habitat and degrading the quality of marine habitat. This equates to 22.4 hectares of Environmentally Protected Saltmarsh habitat either lost, degraded or non-viable marine habitat. This is a conservative measure because site inspections were undertaken after the fact and after most of the site had established grass cover. This means that some level of natural rehabilitation is likely to have occurred.
Davis concluded that had bulk earthworks from the site been limited to a maximum exposed disturbed area not exceeding that approved by the Project Approval, damage to the saltmarsh by sedimentation would have been halved (p 73).
In cross-examination, Davis was asked a number of questions about his analysis of the Nearmap aerial photographs of the site forming the basis for his opinion that there was "strong evidence" to indicate that "significant volumes" of site sediment was impacting the saltmarsh Environmental Protection Area and the rehabilitation area south of Precinct 9. The "significant volume" was estimated to be 80% of up to 28 ha of saltmarsh. Davis did not disclose in his report which 28 ha of the area identified was impacted by sediment and conceded that his report in that respect was unclear (T145:05-23): Q You say, "I used aerial...with 28 hectares". You say you did that but can I suggest to you that nowhere in the plates that follow do you actually show us what 28 hectares it is do you? Take your time. My question to you is whether or where in the aerials that follow you show her Honour actually where this 28 hectares is. A So, not specifically. It's generally across the whole zone and scattered throughout, for lack of better terminology. The impact is not in any specific one zone within that polygon. It's interspersed throughout the recovered vegetation. Q Do you agree that it would have been of assistance having inserted the words that you did on page 48 to have produced the aerial that shows the percentages approximate bare earth and percentage vegetation cover so that we can see what part of the site we're looking at? A Yeah, again it could assist but in this case I believe this will suffice for the terms of an estimation because the whole area is estimated that the percentage vegetation cover from the site. I guess it could have been a bit clearer, yes.
His assessment that 28 ha of saltmarsh had potentially been impacted was a combined estimate (T145.10) and was a conservative measure (T147:23-27 and 150:48-49).
Davis agreed that when asked to compare Nearmap photographs of the saltmarsh for 6 October and 25 June 2014, there was no discernible difference (T149:27-30). It was also put to Davis that there had in fact been improvement in the saltmarsh during the offence period when regard was had to the Nearmap photographs between April 2014 and May 2016 (T149:35-150:5): Q Well I'm going to put this proposition to you, that from what is shown in the aerial between plate B and plate F there is in fact an improvement to the salt marsh during the combination of the charge period. Would you agree or disagree? A No. Q You disagree? A I disagree mainly because you can't tell what's happening in photograph B in terms of the bare earth, impoundment of water, the flow of water, the hydrological processes. Q But certainly in terms of vegetation Mr Davis look at plate F? A Yes around the outskirts there's definitely been some regrowth. Q Yeah, that's an improvement between plate B and plate F still within the charge period correct? A It appears that way but is that because of the impounded water? It's hard to tell but yes there has been an improvement between other periods in terms of growth when we can actually the vegetation and the earth, and the bare earth. For example April 2015 and May 2016 you can see that that has grown. You can't tell from April 2014 to May 2016.
In relation to the ecology of the Cobaki Broadwater and Cobaki Estuary, Davis was circumspect in his opinion of the ecological impact of sediment in the Cobaki Creek and the Cobaki Broadwater (Revised Report at p 62 and see his Supplementary Report at pp 5 and 6): The lack of previous data and time constraints therefore make it very difficult to assign the cause and effect relationship between site sediment export and infaunal community structure. Increased sedimentation may lower the relative proportion of available organic matter and supress infaunal populations which is likely what has occurred within the study area. however, further work would be needed to confirm that this is occurring in Cobaki Creek and Broadwater. Notwithstanding this, the volume of sediment estimated by Andrew McLeod [sic] in his affidavit (28 June 2019) of 15,920 tonnes of sediment flowed offsite into the adjacent aquatic systems between the 21 April 2014 and the 7 March 2017 - has likely caused significant impacts to the aquatic eco systems and species that rely on these. … Clearly a significant portion of the site was left exposed and sediment controls were ineffective in places. This combined with numerous heavy rainfall events will have inevitably liberated fine inorganic silty/clay material from the site into the associated waterways and wetland. As noted in the affidavit of Mr Andrew Macleod, site sediments are highly dispersive and did not settle readily unless a flocculant, salt or considerable time was given. In a heavy rainfall event (such as those in the beginning of 2015) sediments would have remained in suspension for a long time, limiting settling potential and allowing them to be carried downstream. Plume edge mapping based on available aerial imagery correlated with rainfall data does suggest that much of the sediment would have been retained in the Broadwater and turbidity measurements strongly indicate a high level of easily resuspended sediment is now resident, relative to 2008-09.
Describing the possible effects of the additional sediment being deposited in the Cobaki Broadwater he noted that (Revised Report p 72): …it can be stated with certainty that if the sediment load was reduced to 6,756 tonnes (21 April 2014 to 7 March 2017) deposition rates would have obviously been much lower. Cobaki Creek and Broadwater has been identified as a system sensitive to sediment inputs in previous studies (Tweed Shire Council, 2009) - and by limiting bulk earthworks for the site to a maximum of exposed disturbed area (that has not been permanently vegetated) not exceeding a maximum of 5 ha, would have reduced the impact of the processes discussed above and contributed to a healthier, more resilient creek and Broadwater ecosystem…
Davis properly acknowledged in his Revised Report that his ability to isolate the severity of any environmental impact as a consequence of the offending was "challenging" because of an absence of prior data. He noted that (Revised Report at p 62): The lack of previous data and time constraints therefore make it very difficult to assign a cause and effect relationship between site sediment export and infaunal community structure. Increased sedimentation may be lower the relative proportion of available organic matter and suppress infauna populations, which is likely what has occurred within the study area, however further work would be needed to confirm that this is occurring in Cobaki Creek and Broadwater, however.
This observation was repeated in his Supplementary Report.
The effect of sediment runoff on in-stream flow dynamics could not be determined by Davis because of "a lack of pre-works data" (Revised Report at p 67).
Davis further noted that the "lack of baseline data" made it "extremely difficult to quantify system-wide ecological impacts" (Supplementary Report at p 5). He recognised that there was no baseline data collected for the purposes of comparison to quantify the harm to macrofauna, chlorophyll, fish, avian species, or nutrient concentrations (Supplementary Report at pp 4 and 5). He remarked that "data should have been collected across a temporal scale prior to construction works as part of an ecological assessment" and "had adequate data been collected for comparison prior to the impact, a full ecological impact assessment would have definitively quantified impacts associated with influxes…of sediment" (Supplementary Report at p 5).
Finally, Davis observed that the absence of pre-offence data and the absence of any "specific assessment of the creek and Broadwater prior to the incidents in question", resulted in "difficulty to quantitatively demonstrate the impact of the site sediment runoff has had on this location" (Revised Report at pp 62-63).
Nevertheless, in response to the proposition that a baseline assessment against which a comparison could be made was required and that in its absence it was not possible to determine (or predict) whether the existing habitats in Cobaki Creek and Cobaki Broadwater had been physically altered, Davis resolutely maintained that "we can predict with some certainty that sediment accretion has occurred within the Broadwater, and estimate the potential impacts on the Broadwater" (Supplementary Report at p 6).
Davis's initial opinion as to harm was based on the assumption that, as a consequence of Macleod's evidence, 41,712 tonnes of sediment flowed offsite between 21 April 2014 and 30 July 2015, and 51,623 tonnes between 31 July 2015 and 7 March 2017. But as discussed above, Macleod significantly revised his calculations of sediment mobilisation in 2019. Davis therefore amended his original report and produced his Revised Report to account for Macleod's revised calculations that 8,289 tonnes of sediment flowed offsite between 21 April 2014 and 30 July 2015, and 7,631 tonnes mobilised offsite between 31 July 2015 and 7 March 2017.
Like Macleod, Davis's opinion was based on the assumption that the areas of exposed and disturbed land were those as calculated by Watts. However, those calculations represent the maximum area of exposed and disturbed land. Davis did not account for the entire range of disturbed areas on the site, including areas at the minimum end of that range. Davis did not revise his analysis or revise his opinion with respect to the extent of environmental harm based on a smaller area of exposed and disturbed land. He was heavily criticised by Leda for failing to do so.
Davis accepted in cross examination (T139:47-140:26) that his conclusion on likely environmental harm was dependent upon Macleod's findings of tonnage of sediment exported (15,920 tonnes). He further accepted that if there was a finding that whatever sediment that was exported off the site was not deposited in the Cobaki Broadwater, this would raise doubt as to his opinion of the environmental impact of the offending on the Cobaki waterway. But he maintained that it was likely that sediment was deposited in the Cobaki Broadwater leading to environmental harm (T140:01-04). As Davis explained (T132:16-31): Q But your opinion didn't change at all did it? A So my opinion in terms of significance did not change as defined within my 2020 supplementary affidavit, in that both the 47,712 tonnes, the 57,623 tonnes originally estimated by MacLeod had now the revised amount would both have significant impacts. Q You say the amount of tonnes didn't alter the matter at all, do you? A Because I have been unable to quantify the specific impacts because of the prior data, as I've mentioned in all of my reports, they are both significant but unable to quantify the specific amount of impact, yet the impacts are the same, depending on, I guess, the severity of those impacts change which we are unable to quantify. Q When you say the impacts are the same, are you talking about the nature of the impacts or their extent? A Correct. Sorry, the nature of the impacts.
Davis was of the view that any sediment migrating from the site into the waterway would have an environmental effect depending on the amount discharged into the waterway (T134:22-47): Q But you didn't see any problem, may we take it, with the 3,523 tonnes that you assumed in October 2017, did you? A I did see issues with that. I merely said, in this one, I think would have been a significant difference between the two. So, both ‑ both are significant. Obviously, the more tonnes off‑site, the more severe impact would likely be. So, in my 27 affidavit, assuming the higher volumes, I've said that would be a significant impact compared to those estimated volumes and, again, I've I had that again in 2019 affidavit with those revised volumes, although‑‑ Q Sorry, Mr Davis, did you say that 3523 tonnes is a significant effect on the environment? A I said compared ‑ no, I didn't. No, I said compared to the 47,712 tonnes between April 21, 2014 and July 2015 and the estimated 51,623 tonnes between 31 July and a certain month, 2017, as compared to the estimated value 3,523 and 3,269 tonnes, respectively, comparatively, would be a significant difference. Q So, you're effectively ‑ there's nothing more sophisticated about your analysis, may we take it, other than to say the base case is X. If you've got multiples of X, that's greater harm. That's what it boils down to, isn't it, Mr Davis? A So, essentially, with the data we've collected with the sediment sampling and some of the particle soil analysis, we were unable to determine, you know, whether those impacts were actual, because of the time between sampling and the time of the end of the period in 2017. So, we were basing this heavily on the MacLeod report, yes.
In other words, Davis's opinion that sediment settled into the Cobaki Broadwater causing environmental harm was not based purely on the tonnage of sediment exported (T134:49-135:07): Q You're not ‑ with respect to the saltmarsh which we will come to in a moment, you've not been able to say to the Court ‑ sorry ‑ you've not been able to identify for the Court any actual environmental harm attributable to the increase over the amount of tonnages, have you? A Based on literature, existing data and water quality results, I've estimated that the bulk of the sediment that was exported off‑site is within the Cobaki Broadwater area and that's based on literature that's available ..(not transcribable).. reports, being one of those with the water quality monitoring, so, not purely based on the tonnages.

[52]

Evidence of Warren

Warren prepared two expert reports: 1. a report dated 30 May 2018 annexed to his affidavit sworn 30 May 2018 ("first Warren report"); and 2. a supplementary report dated 1 May 2020, annexed to his affidavit sworn 1 May 2020 ("second Warren report").
In his first report, Warren critically reviewed Davis's Revised Report and Supplementary Report and provided an opinion as to whether it was likely that significant environmental damage had been caused to the areas associated with the runoff from the Cobaki Estate development as a result of the offending between 21 April 2014 and 7 March 2017.
According to Warren, Davis had failed to identify evidence supporting a number of key findings in his Revised Report, including: 1. linking the sediment located at the saltmarsh to the earthworks on site, noting that other sites in the catchment were characterised by the same geology that could have contributed to sediment migration (pp 16, 20 and 21); 2. describing or quantifying the hydrological changes that had occurred across the saltmarsh (p 16); 3. a loss of marine vegetation biodiversity (p 16); 4. an increased occurrence of terrestrial or marine weed species (p 16); 5. that infauna has been smothered (p 17); and 6. a loss of breeding/foraging habitat for shorebirds or migratory birds (p 17).
Warren was highly critical of the methodology employed by Davis. His criticisms included, but were not limited to (pp 9 to 27): 1. the failure to measure dissolved oxygen or total nitrogen in the waterways as recommended by the International Water Centre (p 11); 2. the utilisation of turbidity methods not endorsed by the Australian and New Zealand Environment and Conservation Council as useful indicators in estuarine and marine waters (p 12); 3. the failure to assess fish populations and collect data on water temperature and other indicia (p 14); 4. the failure to compare the effects of similar impacts on site outside of the impact area (p 15); 5. the failure to describe sediment colours, consistencies, and the particle sizes of sediment samples taken at various locations at the site, and a failure to conduct a proper particle size analysis (pp 16 and 18); 6. the under-sampling of volumes of sediment for analysis (p 18); and 7. the reliance on historical aerial photographs of poor quality which were taken at irrelevant times (p 19).
In his second report Warren opined that it was highly unlikely that there had been any significant adverse impact on the Cobaki Broadwater aquatic ecosystem as a result of the works and that it was highly unlikely that there had been any adverse impact on the saltmarsh ecosystem (pp 8 and 9 and 28). In formulating his opinion on environmental harm, Warren considered factual matters known to have occurred during the offence periods and events likely to have occurred during the offence periods (pp 6 and 9).
As to factual matters known to have occurred, Warren noted that: 1. works in 2012 (prior to the offence periods) impounded water in June 2013, which drowned the saltmarsh. Any impacts to the saltmarsh community had to be assessed against that previous inundation (pp 6, 11 and 27); 2. some aerial photographs showed discolouration likely due to sediment suspension. It was, however, unclear as to the nexus between the photographs and the migration of sediment from the site to the Cobaki Creek or the Cobaki Broadwater (p 7); 3. with respect to water quality, sediment treatment basins on site were observed to be managing turbidity. Monitoring by Hydrosphere Consulting between 2012 and 2016 did not show elevated suspended solid concentrations due to runoff from the site, and Mills did not report any concerns regarding ESCs on the site (p 7); 4. there was no sediment core data available or studies completed in the Cobaki Creek and Broadwater which would have provided data relevant to determining the health of the aquatic ecosystems (p 7); and 5. there was no evidence that the ecological structure of the Cobaki Broadwater and Cobaki Creek were any different prior to the offending conduct (pp 9 and 24).
As to the events that were likely to have happened during the offence periods, Warren was of the opinion that: 1. it was unlikely that sediment migrating from the site caused any significant adverse impact to the saltmarsh because damage had already occurred to it prior to the offence periods. Moreover, any sediment that had washed into the saltmarsh area was minor in nature and was in areas where the saltmarsh had already died. There was no evidence as to the weight of sediment which migrated into the saltmarsh, and there was no evidence of the structure of the saltmarsh prior to the offence periods which would enable a comparative analysis (pp 8, 9 and 11); 2. there was likely to have been a minor impact on the saltmarsh communities from a small "slug" of sediment, covering no more than 50m2 that had breached a sediment fence in 2017, but it was unclear whether the slug of sediment was directly attributable to the bulk earthworks exceeding 5.59 ha (pp 7, 21 and 26); 3. the adverse impact on the saltmarsh ecosystem was minor, and therefore, there was no likelihood that a significant environmental impact occurred in the Cobaki Broadwater aquatic ecosystem as a result (p 27); 4. there was no real chance or possibility of the significant migration of sediment from the site to the Cobaki Creek or the Cobaki Broadwater due to the resuspension of bottom sediment during tidal movements known to occur in the shallow water estuarine environment (p 8); 5. Davis had made a number of errors in mapping plume fronts from aerial photographs (including mistaking the boundary between deep and shallow water). Sediment pluming could not be detected in the photographs and it was highly unlikely that any sediment from the site would have been mobilised prior to the aerial photographs taken in August and September 2013 and April and June 2014 (p 8); 6. there was no real chance or possibility that any sediment migration from the site caused a significant adverse impact on the water quality in Cobaki Creek or the Cobaki Broadwater because the Cobaki Broadwater experiences high turbidity events due to the re-suspension of sediments caused by tidal flows and wind waves. Additionally, tidal flushing was highly effective in the Cobaki - Terranora system, with particulate materials delivered to the nearshore coastal zone. Furthermore, evidence relating to water quality at the site was limited and did not include testing at reference sites from nearby broadwaters or creeks (pp 8 and 9); 7. Davis's sediment analysis did not demonstrate colour changes consistent with recent sediment deposits and the particle analysis did not show any significant fresh sediment loads (pp 9 and 21); 8. there was no real chance or possibility that the migration of sediment from the site caused significant adverse impacts on the ecosystem structure of the Cobaki Creek or the Cobaki Broadwater (p 9); and 9. it was highly unlikely that significant environmental damage had been caused to the Environmental Protection Area and rehabilitation area of Precinct 9 (p 28).
The first Warren report also set out his opinion on whether environmental harm had been caused by Leda's conduct during the offence period relevant to the second summons, namely 31 July 2015 to 7 March 2017. With respect to that offence period, Warren was of the opinion that there was no evidence of harm to the aquatic ecology of the waterway and saltmarsh community adjacent to the site (p 30).
Assuming that all of the sediment calculated by Macleod migrated to the ecosystems surrounding the site, Warren was of the view that the likely impacts would have been minor or inconsequential (p 26). That opinion was based on the following reasoning (pp 26-27): 1. the aerial photographs relied on by Davis provided no evidence of sediment migration during the time of the offence, indicating that (assuming that the full sediment load entered the adjoining aquatic ecosystem) small amounts of sediment migrated to the adjoining ecosystems; 2. Coolangatta rainfall data revealed only 19 instances of rainfall exceeding 25mm over the offence period. This rainfall data confirmed a lack of observable pluming and sediment migration in the aerial photographs because the rainfall events were not large enough to mobilise sediment in significant proportions; 3. it was likely that 18 small sediment migration events and one larger migration event occurred, nine of which occurred prior to a major rainfall event leaving sediment available for migration in 2016 that was not significant; 4. there was no evidence identified by Davis of recent significant impacts to the adjoining aquatic ecosystems. Further, Warren did not see any evidence of long term damage to the saltmarsh, such as dead or dying saltmarsh; 5. of the soil cores sampled by Davis, none displayed the banding of reddish/orange soil that he had observed in the saltmarsh area; and 6. literature confirmed that: 1. mangrove and saltmarsh communities are sediment collectors and sediment is considered to be essential to their survival; 2. estuarine ecosystems, being at the interface between fresh and marine systems, are resilient and adapt to a variety of stressors acting on them; and 3. estuarine ecosystems are adapted to constantly changing conditions such that the migration of small sediment loads posed no real chance of risk or probability of significant harm to the environment.
Warren attributed any adverse impact on the adjoining aquatic ecosystem to four other causes (pp 28-29): 1. exposure of a maximum of 5 ha of earthworks that was otherwise approved by the Project Approval; 2. other sources of sediment that had historically contributed to the poor water clarity in the Cobaki Broadwater, including a minor volume of catchment sediment load associated with rural residential subdivisions that had been developed in the catchment over the last 20 years; 3. substantial volumes of sediment produced by the rural and agricultural Cobaki catchment, which added to the sediment load of Cobaki Broadwater during storm events; and 4. natural flooding events contributing to the receiving waters of Cobaki Broadwater.

[53]

The Weight to be Placed on Warren's Evidence

An expert witness must comply with the Expert Witness Code of Conduct in Sch 7 ("the Expert Code") to the Uniform Civil Procedure Rules 2005 ("UCPR") (see r 3J in Pt 75 of the Supreme Court Rules 1970 ("SCR") and r 5.2(1) of the Land and Environment Court Rules 2007, which applies Pt 75 of the SCR to criminal proceedings in Class 5 of this Court's jurisdiction). Clause 2 of Sch 7 to the UCPR provides: 2 General duties to the Court An expert witness is not an advocate for a party and has a paramount duty, overriding any duty to the party to the proceedings or other person retaining the expert witness, to assist the court impartially on matters relevant to the area of expertise of the witness.
The requirement to comply with the Expert Code and with Div 2 of Pt 31 of the UCPR (which concerns provisions applicable to expert evidence) is also stipulated in the Court's Practice Note - Class 5 Proceedings (at [38]).
Merely because an expert witness has a material interest in the proceedings does not preclude that expert from complying with their duties set out in the Expert Code (Sydney South West Area Health Service v Stamoulis [2009] NSWCA 153 at [211]-[212] per Ipp JA).
A failure of an expert to comply with the Expert Code does not render an expert's evidence inadmissible (Stamoulis at [208]-[210]. In this Court see to similar effect Lake Macquarie City Council v Australian Native Landscapes Pty Ltd [2015] NSWLEC 92 at [15] and, more generally, Secretary, Department of Planning, Industry and Environment v Auen Grain Pty Ltd; Merrywinebone Pty Ltd; Greentree; Harris (No 2) [2020] NSWLEC 126).
The duties of witnesses bound by the Expert Code was considered more recently in Chen v R [2018] NSWCCA 106; (2018) 97 NSWLR 915 (at [19]): 19. His Honour's approach to that application accorded, however, with that discussed in Wood v R (2012) 84 NSWLR 581; [2012] NSWCCA 21, where it was observed: "[724] In Sydney South West Area Health Service v Stamoulis [2009] NSWCA 153 at [203], Ipp JA (Beazley and Giles JJA agreeing) said that the content of the duty of expert witnesses and the powers of the court to enforce that duty are yet to be finally determined. [725] The Code of Conduct is found in Sch 7 to the Uniform Civil Procedure Rules 2005. It applies to expert evidence in criminal proceedings by virtue of Pt 75 r 3J of the Supreme Court Rules 1970 and applies to Associate Professor Cross' reports and oral evidence. Clause 2(1) of the Code imposes on an expert witness 'an overriding duty to assist the court impartially on matters relevant to the witness's area of expertise.' Furthermore, there is a duty on the expert to state, 'if applicable, that a particular issue falls outside the expert's field of expertise' (cl 5(1)(d)) and 'If an expert witness who prepares an expert's report believes that it may be incomplete or inaccurate without some qualification, the qualification must be stated in the report.': cl 5(2). There is also an obligation to disclose whether an opinion is 'not a concluded opinion because of insufficient data or research or for any other reason …': cl 5(3). An expert report is not to be admitted into evidence unless an expert has agreed to be bound by the Code (unless the Court otherwise orders) nor is oral evidence to be received from that witness. [726] In Dasreef Pty Ltd v Hawchar [2011] HCA 21; (2011) 243 CLR 588, the High Court unanimously held that where an expert purports to give evidence not based on his specialised knowledge, the evidence is inadmissible. The majority confirmed the relevance of the analysis of Gleeson CJ in HG v The Queen [1999] HCA 2; (1999) 197 CLR 414 at [41] and of Heydon JA in Makita at [85] when determining whether the opinion of a witness is 'based on specialised knowledge or belief': Dasreef at [37]-[43] per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ. [727] It was submitted by the applicant that these authorities are relevant in two respects - first, the assessment by this court of whether or not there has been a miscarriage of justice such as to warrant an acquittal or re-trial, and secondly, in determining whether or not the evidence Associate Professor Cross incorporated into affidavits and sought to be tendered by the Crown was admissible on the appeal. As to the second of these matters, it was submitted that where bias or interest or some other material breach of the Code of Conduct by an expert has been demonstrated, opinion evidence of that expert witness is inadmissible. The expert has demonstrated an unwillingness to be bound by the Code: cf Supreme Court Rules, r 75.3J. It was submitted that there is no place for such evidence in a Supreme Court criminal trial. It was further submitted that the requirements for admissibility under s 79 and s 137 of the Evidence Act were not established in these circumstances. [728] It may be, as some previous decisions suggest, that an expert's evidence is not inadmissible merely because the expert has breached or overlooked the Expert Witness Code of Conduct: United Rural Enterprises Pty Ltd v Lopmand Pty Ltd [2003] NSWSC 870 at [12] per Campbell J; Rich at [333] per Austin J; Stamoulis at [208] per Ipp JA (Beazley and Giles JJA agreeing); see Commonwealth Development Bank of Australia Pty Ltd v Cassegrain [2002] NSWSC 980 at [9] per Einstein J. This position accords with the view that bias is 'no reason not to admit evidence of [the] expert': Li v The Queen [2003] NSWCCA 290; (2003) 139 A Crim R 281 at [71] per Ipp JA (Whealy and Howie JJ agreeing); see also Haoui v The Queen [2008] NSWCCA 209; (2008) 188 A Crim R 331 at [127]. It also aligns with the reality that '[h]owever desirable these new rules and protocols [contained in expert witness codes of conduct] may be, they cannot establish changes to the principles underlying the law of evidence': FGT Custodians Pty Ltd v Fagenblat [2003] VSCA 33 at [15] per Ormiston JA (Chernov and Eames JJA agreeing). [729] This is not to say that the Expert Witness Code of Conduct is merely aspirational. Where an expert commits a sufficiently grave breach of the Code, a court may be justified in exercising its discretion to exclude the evidence under s 135 or s 137 of the Evidence Act. Campbell J adverted to this possibility in Lopmand when his Honour stated at [15]: 'The policy which underlies the existence of Part 36 rule 13C is one which I should take into account in deciding whether [the expert evidence] should be rejected under s 135.' I respectfully agree with that approach. While there is no rule that precludes the admissibility of expert evidence that fails to comply with the Code, the Code is relevant when considering the exclusionary rules in ss 135-137 of the Evidence Act. The expert's 'failure to understand his [or her] responsibilities as an expert' (Lopmand at [19]) may result in the probative value of the evidence being substantially outweighed by the danger that it might mislead or confuse or be unfairly prejudicial to a party."
The credibility or reliability of expert evidence will be eroded if cross-examination or other evidence shows that the expert lacks objectivity or has deviated from their obligation of independence. Any lack of credibility and reliability will be relevant to the weight, if any, to be given to the evidence.
It is essential that the expert witness discloses any relationship with the party calling them so that a court may determine whether any and, if so what, weight should be given to the evidence.
Thorough and careful cross-examination of Warren by senior counsel for the prosecutor demonstrated that not only was he acting as an advocate for Leda, but that he had failed to disclose the extent of his relationship with that entity.
First, Warren failed to disclose the extent of his commercial relationship with Leda and the extent of his work on the project. Warren attached his curriculum vitae to his first report. Under the heading "Flora and Fauna Studies in New South Wales", the first entry noted that he was "currently engaged by Leda Developments Pty Ltd on the 850 hectare Kings Forest site (south of Kingscliff)". Warren outlined the work that he had completed for Leda in respect of the Kings Forest site. Mr Warren also listed: Fauna Consultant to Calsonic Management Services (trading as Cobaki Lakes) for the preparation of a Statement of Environmental Effects for a road extension from Tugun into the Cobaki Lakes Residential Development area and fauna survey of the Cobaki site ($250m residential development).
Under the heading "Environmental Management" he referred to the "management of several large residential/industrial development sites as rehabilitation site managers for example Kings Forest near Kingscliff, Cobaki Lakes near Tweed Heads".
A "Specific Task" he stated that he had undertaken was as follows: Subtropical Rainforest and Eucalypt communities, Cobaki Lakes, Tweed Heads West (for Cardno MBK).
Nowhere in his curriculum vitae or the first Warren report did he state that he has done work for Leda on the Cobaki Estate project.
In the first Warren report he declared that (p 5): I have made all the inquiries which I believe are desirable and appropriate, save for any matters identified explicitly in the report, and no matters of significance which I regard as relevant here have, to my knowledge, been withheld from the court.
The curriculum vitae annexed to his second report did not alter in a material way the information provided in the curriculum vitae attached to his first report.
While it was common knowledge that Warren had been engaged to do work on the Cobaki Estate site because Warren's reports were referred to in the Project Approval, the extent of that engagement in relation to the project was unknown until cross-examination.
Warren and his associated corporate entities have been consistently engaged by Leda between 1993 and about 2000 or 2001 and then again from 2007 to the present (T301:03-07) to work on the Cobaki site (T301.09-11). Nowhere in either report did Warren disclose that he had been engaged by Leda since 1993 to work and advise on the project (T303:24-306:35).
Furthermore, a reader of Warren's reports would not know the extent of his work for Leda. Between 19 August and 5 December 2014 one of his companies received $1,738,218 from Leda in relation to work done on the Kings Forrest site. More importantly, between 28 November 2014 and 27 March 2018 his company receipted $431,596 from Leda in relation to work done on the project. While it varied over the years, with the exception of the period from 2001 to 2007, income from Leda accounted for approximately 25% to 45% of his revenue (T310:11-28).
Second, Warren had withheld crucial information and knowledge underpinning his conclusions arrived at in both reports. For example, one of the matters in issue between the parties was the harm, if any, sedimentation had caused to the saltmarsh connected to Precinct 9. In his second report Warren relevantly outlined his "Prior Knowledge and Assumptions" as follows (p 11). Approved works to construct part of the Cobaki Parkway from near Precinct 9 through the saltmarsh to Cobaki Creek commenced with a minor road through the northern part of the saltmarsh in 2009 and the road base for the main Cobaki Parkway to Cobaki Creek in late 2012. The work in 2012 effectively caused the impoundment of water in a large part of the saltmarsh. Impounded water became obvious in June 2013 colour aerial photography (Nearmap). The impounded water drowned this area of saltmarsh.
The statement is significant to the findings contained in that report because this is one of the reasons that Warren gave as to why the offences could not have caused any significant impact to the saltmarsh, namely, because the saltmarsh was already damaged as a result of the 2012 drowning by the impounded water. But the 2012 impoundment and the resulting effect were not referred to in the first Warren report.
Equally problematic is that this conclusion is inconsistent with other reports prepared by Warren. In November 2012 Warren prepared the Saltmarsh Rehabilitation Plan for the site. In April 2013 he revised that Plan. In both versions of the Saltmarsh Rehabilitation Plan he stated that (p 6): Saltmarsh communities have ecological value, which have been recognised at a Commonwealth, state and local government level. However, the salt marsh communities on the subject site are currently degraded as a result of cattle grazing over a long period of time.
Neither version of the Saltmarsh Rehabilitation Plan made any mention of the impoundment of water in 2012 causing significant damage to the saltmarsh. This was so notwithstanding that the event occurred in the same year that the original version of the Plan was drafted.
In addition, the first Warren report makes no mention of the effects of cattle grazing or the impoundment of water. It was not until the second Warren report that the impoundment of water in 2012 was referred to in answer to the finding by Davis that sediment from the site had caused damage to the saltmarsh.
It should be recalled that Warren had carried out inspections of the saltmarsh during the offence period on 12 November and 9 December 2014 and 12 February 2015. In May 2015 Warren carried out research regarding the saltmarsh (T318:44-319:50). These inspections and this work were also not disclosed in his reports. Further, Warren had previously mapped the vegetation of the saltmarsh, a matter about which his reports are silent (T325:11-19).
Similarly, in Warren's analysis of ESCs on site, under cross-examination it became apparent that he had only considered that there was one material rainfall event in June 2016 of 360 mm (T373:15-20). He knew that a rainfall event of up to 25 mm over a 24 hour period would likely trigger a migration of sediment (see his first report at p 20). Warren chose to ignore numerous rainfall events of more than 25 mm over a 24 hour period (T374:16-T375:45).
Finally, Warren criticised Davis for not carrying out cholorphyll A and turbidity tests to measure short term impacts on the Cobaki Estuary. However, when questioned, Warren revealed that his views were partly premised on an Office of Environment and Heritage review of this type of testing. This was not disclosed in his evidence-in-chief (T371:29-372:32). What was apparent was that these tests only revealed immediate short-term impacts, which when carried out 12 months after the offending occurred would not yield relevant results.
Third, Warren (and his companies) had produced a number of reports for Leda, including ecological reports, that supported the initial development applications for the site in 1994 and again in 2007, in order to assist in "getting approval to develop the site" (T301:20-35). As a consequence, there is no doubt that Warren perceived, and continues to perceive, his role to be as an advocate for Leda. For example: 1. Warren attended meetings with the Council as Leda's contract ecologist because the "project managers weren't ecologists, they needed someone with ecological expertise to represent them with council's ecologists, so that was my role…I was there to represent their interests" (T310:46-311.44); 2. he did not attend these meetings as an independent expert, rather he did so to "represent" Leda. He attended to "interpret" ecological implications for it (T313:27). He was involved in writing submissions to the Council and to the Commonwealth Regulator (T313:40-45); 3. he sent drafts of reports to Leda before they were finalised because "they're paying for the report, they own it"; 4. he was the nominated communication point between Leda and the relevant Commonwealth regulator (T316:05-10); and 5. he was involved in making applications to amend the Project Approval (T315:10-12).
Warren unreasonably refused to accept that he was an advocate for Leda in the meetings with regulators because "advocating" was a word that he did not like and not a term that he would not have used (T317:09-19). He stated (T314:36-44): Q In that process, you were an advocate for Leda in relation to the flying-fox submission, weren't you? A Well, look, that's - if you want to put it that way, but they asked me my advice - for my interpretation and my advice. I provided it, and my advice turned out to be correct. Q But see, Mr Warren, you didn't just provide your advice, you actually wrote the submission that went to the regulator, didn't you? A Yes, I did. Leda couldn't do that. Project managers couldn't do that.
When asked why he did not raise the cattle degradation of the saltmarsh in either his first or second reports, Warren gave the following answer (T323:33-49): A Again, if I'd thought about it more deeply, I probably would've included it but I - in these reports, you have to understand - in these reports that I prepared for the Court, my - the issue I was mostly engaged with was the Davis reports. I didn't put my mind, unfortunately, to all these other issues that you've raised just now. I saw my role as - in assisting the Court, in analysing the Davis reports. … Q Did you bring an independent mind to the issues to be discussed in your report? A My role - I saw my role as to assist the Court.
Similarly, when asked why he had not disclosed that his firm had previously mapped the vegetation of the saltmarsh Warren replied (T325:21-34): A Again, I didn't think it was important at the time. You know, if you - on reflection, I may have needed to include that, but it was a matter of public knowledge what the reports that we completed in relation to the vegetation mapping on the site. So, I guess I just assumed that everyone knew about it. Q Mr Warren, in your reports, did you think it was only important to criticise Mr Davis? A No, I had a briefing from Mills Oakley about what I was meant to do. But in coming to those conclusions that I was asked to come to, I needed to review or analyse the Davis report in detail, which I did. The prosecution ‑ my understanding was that the prosecution has to prove its case ‑ you know, this is just me ‑ and that the Davis report was in support of the prosecution case, so therefore, to assist the Court, I had to analyse and review that Davis report.
Likewise, when asked whether it would have been important to make inquiries as to whether the saltmarsh monitoring had been occurring as he had recommended in the Saltmarsh Rehabilitation Plan, Warren stated (T329:49-330:05): Q Wouldn't that be important information to include in your report? A Possibly. I thought it would have been more important for the prosecution to do, provide that information. Q You were very conscious of what the prosecutor had to do, and what had to be done for the defendant, weren't you, Mr Warren? A Well, we all are.
Fourth, Warren's refusal to concede some matters under questioning was unreasonable and disclosed a lack of objectivity contrary to his role as an expert. For example, Warren acknowledged that sediment had washed into the saltmarsh during the offence period but he refused to accept that photographs of the saltmarsh showed sediment in it or that it was the same colour as the sediment on site (T334:01-09): …it could be anything, I mean, yes, it could be sediment, it could be vegetation, you know, that's brown, you know, it's - I couldn't commit to saying that it was sediment.
When asked if the material in the saltmarsh was the same colour as material at the site the following exchange took place (T335:24-27): Q Mr Warren, it may be road base, it may be whatever it is, but it's the same colour as what's in the salt marsh‑‑ A No, it's, no, I wouldn't agree to that. Certainly similar, but you said the same, you said the same, and I can't possibly say that it's exactly the same.
Warren was then taken to photographs which showed sediment flowing into the saltmarsh from the site and said (T336:33-337:03): A That's the area you're talking about. Yes, that appears to be something there which is not, to the rest of the water in the salt marsh. That's all I can say. Q Are you unwilling to admit that that looks like sediment flowing into the salt marsh? A I'm not, I'm willing to admit that I know exactly what it is. Q Is it likely to be sediment flowing from the work site into the salt marsh? A Well - Q If you can say conclusively? A Well, if you look at 115, you've brought me to 116. If you go to 115, that same area has a similar colour there. Q Yes, that's my point, Mr Warren. You didn't seem to be able to see it on 115, so I took you to 116. Do you see that, looking at 116, that area of land in the salt marsh is the same colour as the site works in precinct 9, and in the SSPP? A All I can say is that it's a more similar colour to, to the cleared, to the open area on precinct 9, than to the other major area of water in the salt marsh.
Even the most cursory examination of the photographs unequivocally demonstrates that the only answer that could be given to those questions was that the material in the saltmarsh was the same colour as the soil on the site. Warren refused to provide this answer.
Fifth, Warren's partiality resulted in evidence that was, in many respects, illogical. For example, he refused to accept that there was any possibility that there had been significant sediment migration off site. This was because bottom sediment was suspended during tidal movement in estuarine environments. In this regard, Davis had mistaken the shallow and deeper water boundaries on the NearMap aerial photographs when mapping the plumes. Accordingly, there was no possibility of any environmental harm resulting from the sediment mobilisation.
However, this evidence lacked coherence. While Warren accepted that resuspension of bottom sediment did have an effect on an aquatic environment (T378:09-11) (which was consistent with Davis's evidence that the turbidity of a waterway can adversely affect photosynthesis and inhibit the growth of seagrass), his opinion that there was no possibility of the dispersion of sediment due to suspension of bottom sediment during tidal movement must have presumed that there was sediment at the bottom of Cobaki Creek and Cobaki Broadwater. If there was no real chance that the sediment came from the site, then the only logical explanation for the plumes of sediment shown in the aerial photographs was re-entrainment and resuspension of bottom sediment. Warren gave no cogent explanation for where the sediment visible in the photographs emanated from.
Warren's evidential void is able to be filled with Davis's explanation of the occurrence of a natural sediment deposition zone. Warren criticised Davis's evidence on this issue on the basis that the NearMap aerial photographs only depicted the colour of the water changing as the water depth increased. But this opinion was expressed absent Warren having undertaken any depth testing. Again, Warren's evidence lacked probity. If the difference in colouration was due to depth, a more constant demarcation of the change in colour would be expected across the photographs, especially when some of the images were taken only a month apart.
Leda strenuously resisted the submission by the prosecutor that Warren was biased and that limited to no weight could be placed on his evidence. It submitted that, having regard to Warren's evidence in cross-examination, particularly, his demeanor, Warren presented as an earnest witness who expressed himself in simple and clear terms and who firmly rejected any suggestion, direct or implied, that he was partial. For example: 1. when challenged on whether he brought an independent mind to the issues in his report, his response was that "my role - I saw my role as to assist the Court" (T323:49 and see also 372:32); 2. he attended negotiations with Council with representatives of Leda in December 2016 as an ecologist because none of Leda's project managers had ecological expertise (T311:50). Rejecting the suggestion that submissions that he had made during the Council meetings were in the "best interests of Leda", Warren said "no, I was there to represent their interests, but in terms of ecological matters it's straight science, isn't it, as an ecologist. We're scientists" (T311:48-49 and see also 313.14-17); 3. similarly, his attendance at a Commonwealth government meeting in Canberra was in response to instructions to "provide information in relation to, for example, flying foxes, or endangered ecological communities" (T313:41) and he made submissions on behalf of Leda because Leda's "project managers couldn't" write the submissions (T314:44) and "they needed someone to write a submission in that, in such terms that they couldn't write. They, they couldn't write those submissions, because they didn't have the scientific or ecological background to write them" (T313:42-45 and see also 314:23-40, 351:44-354:44 and 361:50-362:09); 4. he rejected the proposition that he was advocating for Leda when writing submissions to the Commonwealth stressing that he would only write a submission that was scientifically valid: "if they contract me to write a report or a submission, that I can write the submission in full knowledge that the scientific information in there is going to be peer-reviewed by the state government, I'll write the submission. I'll write a submission if the material in the submission is scientifically valid. I know it's going to be peer-reviewed. Every time you do one of these, it's going to be peer-reviewed. And it's not worth my reputation to be writing a submission which is, if I can excuse the term, bull or non-scientific rubbish" (T317:11-19 and see also 372:30-32); and 5. he explained that sending draft reports to Leda was in accordance with usual practice: "it's, that's what, that's what you commonly do. That's accepted practice in any report, engineers or ecologists, whatever it is. If the client asks for a draft of it, you send them a draft. They're paying for the report, they own it" (T312:33-36).
Leda submitted that the prosecutor's characterisation of Warren's approach as purely one of criticism of Davis was unfair and unreasonable in all of the circumstances. It emphasised that: 1. on 24 March 2018 Warren was briefed by Mills Oakley. He was provided with a copy of Davis's affidavit of 20 December 2017 and instructed to draft an expert report which addressed a number of matters that were the subject of Davis's expert report (for example "likely impacts on the aquatic ecology of the adjacent waterway and saltmarsh community"); 2. Warren was briefed again by Mills Oakley on 18 September 2018. He was provided with Davis's Revised Report and was instructed to consider whether it changed the opinion expressed by him in his 30 May 2018 affidavit and was also asked to comment on any other matters arising from Davis's Revised Report; and 3. he was also briefed with Davis's Supplementary Report and was asked to consider whether it changed his opinion expressed in his 30 May 2018 affidavit and was instructed to comment on any other matters arising from it.
Thus to suggest that it was outside of the scope of Warren's role as an independent expert to critique a prosecutor's expert was fundamentally flawed. Furthermore, to describe Warren as an "advocate" for doing so, would be to label all experts as such in any proceeding.
Insofar as Warren's Saltmarsh Rehabilitation Plan was concerned, in circumstances where that evidence was first introduced in the proceedings by the prosecutor and where the Plan had been provided to, and relied upon, by Davis, Leda submitted that there was no need for Warren to disclose it.
Alternatively, any failure by Warren in disclosing the Saltmarsh Rehabilitation Plan and his inspections of the saltmarsh in December 2014 and February 2015 in his expert reports, was not deliberate or reckless, but ought properly to be characterised as inadvertent error. This was demonstrated by the following response by Warren (T319:47-49): Q Why are none of those inspections referred to in either of your reports, Mr Warren? A I don't know. Should they have been?
And (T321:24-322:04): Q You see there point 3, "I have made all the inquiries which I believe are desirable and appropriate, save for any matters identified explicitly in the report, and no matters of significance which I regard as relevant here have, to my knowledge, been withheld from the Court"? A Yes. Q Was that the truth, Mr Warren? A At the time it was. At the time I wrote it it was. Q In your first report you make no mention of the impoundment of the salt marsh from water in 2012, do you? A In that first report, no. Q Why not? A Well, if had have thought of it, thought of it at the time, I would have put it in, I would have mentioned it. Q Mr Warren, in your first report you were asked to consider whether or not there had been damage to the salt marsh from sediment during the offence period, weren't you? A Yes. Q In your second report, you explain away any potential harm from the sediment by saying it was already dead from the work we did in 2012, don't you? A Correct, that's the truth. Q So isn't that highly important information which should have been included in your first report? A On reflection, yes, it should have been.
Similarly (T323:20-39): Q If you're looking at how to revise and rehabilitate the salt marsh in April 2013, wouldn't it be highly important to include in this document the fact that the previous year, the salt marsh had been drowned by the company? A At that particular time, if I could answer - at that particular time, the situation with the salt marsh was getting worse. It was a developing issue and that's probably why I had those site inspections that you took me to earlier on, where we were trying to work out what was happening with the salt marsh at the time. It was a developing issue. Didn't happen overnight. Q Nowhere in either of your reports - being the 2018 or 2020 report - do you make any mention of degradation of the salt marsh by cattle grazing, do you? A No. Q Why not? A Again, if I'd have thought about it more deeply, I probably would've included it but I - in these reports, you have to understand - in these reports that I prepared for the Court, my - the issue I was mostly engaged with was the Davis reports. I didn't put my mind, unfortunately, to all these other issues that you've raised just now. I saw my role as - in assisting the Court, in analysing the Davis reports.
There was likewise no obligation to disclose Warren's involvement in obtaining the Project Approval because his participation was patent from the following publicly available documents: the Concept Approval; various conditions of the Project Approval; modifications of the Concept Plan; and modifications of the Project Approval.

[54]

Very Limited to No Weight Can be Given to Warren's Evidence

Leda also relied heavily on Warren's demeanour as a basis for urging the Court to accept and place significant weight upon his evidence. My clear recollection of Warren, however, was of a witness who was evasive, argumentative, provided glib responses, refused to make reasonable concessions where appropriate, and was otherwise self-serving.
This is because Warren saw himself as part of Leda's defence team and that his role was not, contrary to what he indicated, "to assist the Court". Warren was at all times acting as Leda's advocate, a role that he had assumed for many years across a variety of projects.
While Leda was correct to submit that it was not impermissible for Warren to critique Davis's evidence, the manner by which he sought to do so made it tolerably clear that he considered it his task to defend Leda. His evidence, both oral and written, was plainly partisan.
I do not accept that Warren was not obliged to disclose the Saltmarsh Rehabilitation Plan or the prior work that he (and his companies) had undertaken for Leda, especially in relation to the project. In any event, it was the sheer volume of that work that was problematic. Warren had become captured by Leda and his impartiality had been lost as a result. I accept the submission by the prosecutor that his lack of candour about his relationship with Leda was significant and called into question his ability to give independent evidence, a concern that was ultimately justified by his conduct at the sentence hearing.
Warren's frequent omission from his reports of critical factual material and knowledge was troubling. The absence of any reference to the 2012 water impoundment and the cattle grazing in his first report was not adequately explained by him. Nor were the inconsistencies between his conclusions in his second report as to causes of the damage to the saltmarsh and the Saltmarsh Rehabilitation Plan. I also do not accept that it was mere inadvertence that he did not mention the Saltmarsh Rehabilitation Plan or his visits to the saltmarsh in his reports. Even if it was an innocent oversight, the omission of this important evidence means that very limited weight can be placed upon the contents of his reports because the accuracy of their content is in doubt.
Warren's refusal to make obvious concessions in the face of incontrovertible evidence, such as the photographs of sediment in the saltmarsh, only served to reinforce the conclusion that he could not fulfil the role of an expert witness.

[55]

The Sediment Mobilisation and Deposition Caused Actual and Likely Harm on the Ecology of the Surrounding Environment

I accept the prosecutor's submission that, unlike Warren, Davis was a frank and conscientious witness, and that his evidence should be largely accepted.
Accordingly, having regard to the evidence of Davis, I am satisfied beyond reasonable doubt that there was actual harm caused to up to 28 ha (a precise figure cannot be ascertained) of the saltmarsh communities adjacent to the site near Precinct 9 as a result of the offending. Having said this, the damage does not appear to be permanent and some level of natural rehabilitation has occurred (there is no evidence that that Leda has taken any steps to rehabilitate the saltmarsh). As Bewsher recognised, "small quantities of sediment might have a significant environmental impact on very sensitive ecosystems."
But having regard to the evidence of Davis, Bewsher, Matthew, and Martens, I am not satisfied that, to the extent that some of the sediment mobilised off the site into the sediment deposition zone of the Cobaki waterway (the Cobaki Creek and the Cobaki Broadwater), actual environmental harm occurred. This is due in part to the absence of pre-works baseline data and the difficulty in assessing with any certainty how much sediment was deposited into the Cobaki waterway as a result of the offending. So much so was acknowledged by Davis himself in cross-examination (T134:49-135:07). In this context, it must be recalled that there was already approximately 127 tonnes of TSS in the relevant areas of the Cobaki Estuary and approximately 37 tonnes of TSS within the Cobaki Creek and the Cobaki Broadwater (see Bewsher's evidence). In other words, this was already a sediment laden receiving environment.
I do, however, find, based on Davis's (unchallenged) evidence, that likely environmental harm was caused to the receiving environment by the mobilisation and deposition of additional sediment from the site as a result of the commission of the offences. Davis did not resile from his evidence that any additional sediment leaving the site and entering the Cobaki waterway was likely to result in environmental harm because the areas associated with the runoff from the site and its deposition had the potential to lower the relative proportion of available organic matter and impact a range of nutrient cycles and food webs, thereby supressing interfaunal populations, including species of migratory avian populations. This was so notwithstanding the fact that the receiving environment was not sediment free and that some sediment would have mobilised offsite even if condition 21A had been complied with.
While the weight that can be attributed to Davis's opinion in this regard is diminished by his failure to revise his assessment of environmental harm based on the lower areas of exposed disturbed land found by the Court, and the lower estimated sediment mobilisation, this does not mean that his conclusions as to environmental harm must be substantially discounted. This is because, as Davis explained, the nature of the impacts remained constant; all that changed was the extent of the impact. Put another way, "the more tonnes off-site, the more severe impact would be" (T134:26).
However, as is apparent from the earlier discussion concerning the amount of sediment that was deposited in the sediment deposition zone and the amount of sediment that was washed out to sea by reason of the hydrology of the receiving waters, precise quantification of this likely harm is not possible, other than to conclude that the environmental harm caused to the Cobaki waterway would have been modest and likely of limited duration.
Leda submitted that such a finding was flawed in the absence of an analysis as to the quantum of the likely harm, which in turn was dependent on the establishment of adequate baseline data. I do not agree. There is nothing impermissible about a finding of likely harm to the criminal standard based on the evidence of Davis. Precise calculation and detailed identification of that harm is not required. As long as there was a real and not remote chance or possibility of the type of harm that Davis identified in his expert evidence occurring as a result of the offending by Leda (which I have found that there was), then likely harm to the environment occurred.

[56]

Dust and Air Quality

Both parties relied on expert evidence with respect to the impacts on air quality as a result of dust emissions from the site. To the extent of the admission of his evidence in Secretary, Department of Planning and Environment v Leda Manorstead Pty Ltd (No 6) [2020] NSWLEC 68, the prosecutor relied on the evidence of Aleksandar Todoroski. Todoroski's evidence comprised: 1. an affidavit sworn 16 March 2020, appending an expert report ("the first Todoroski affidavit" and "the first Todoroski report", respectively); 2. an affidavit sworn 15 May 2020, appending an expert report ("the second Todoroski affidavit" and "the second Todoroski report", respectively); and 3. an affidavit sworn 1 June 2020 ("the third Todoroski affidavit").
Todoroski opined as to the air quality at the Cobaki Estate site and the actual and likely environmental impacts resulting from the offending.
Leda engaged Damon Roddis, an air quality specialist, who provided the following expert reports: 1. an affidavit affirmed 5 June 2018, attaching a report ("the first Roddis report"); 2. an affidavit affirmed 29 April 2020, attaching a report ("the second Roddis report"); and 3. an affidavit affirmed 3 June 2020, attaching a report in reply to the second Todoroski report ("the third Roddis report").
During the charge periods for the first and second summons, it was not in dispute that there was no on-going monitoring of air quality in the areas adjacent to the site, including to the north of the site comprising the residential suburb of Currumbin Waters across the border in Queensland. The experts therefore agreed that in the absence of ambient air quality monitoring or other background data, the use of atmospheric dispersion modelling was an appropriate method for assessing impacts on air quality.
Both experts provided dispersion modelling that estimated the impact of wind erosion on soil from the exposed areas on the site on the air quality of the residential areas to the north. Todoroski used the CALPUFF model to generate his modelled results, whereas Roddis used the AERMOD model. The results of the modelling exercise undertaken by each expert differed markedly.
Todoroski's modelling was used to generate estimates of the air quality impacts of dust emissions from wind erosion at three "Assessed Receptor Locations". He modelled the annual average concentration (in µg/m3) for PM10 and PM2.5 particle size and the 24 hour average concentration (in µg/m3) for those particle sizes at the receptors, where the particle size distribution was based on a default measure for various time periods spanning the first and second summonses. Todoroski analysed: 1. "allowed wind erosion impacts", being the impacts at the receptors of dust generated by wind erosion when there was 5.59 ha of exposed area on the site, assuming that the 5.59 ha area was closest to the receptors so as to maximise the impact in this "allowed" scenario; and 2. "total wind erosion impacts", being the impacts at the receptors of dust generated by wind erosion when there were exposed areas on the site using the exposed area estimates provided by Watts.
In order to estimate the additional impact of the exposed area beyond what was allowed under the Project Approval, Todoroski subtracted his modelled results for "allowed wind erosion impacts" from "total wind erosion impacts", to give values he described as "excess wind erosion impacts", as set out in tabular form in the second Todoroski Report: Table 4: Predicted PM10 and PM2.5 concentrations for excess wind erosion impacts at nearby receptors (μg/m3) Period 24 hour Average PM10 24 hour Average PM2.5 24 hour Average Receptor 1 Receptor 2 Receptor 3 Receptor 1 Receptor 2 Receptor 3 21/04/2014- 30/07/2015 21.2 22.2 24.5 3.2 3.6 3.9 31/07/2015 - 7/03/2017 46.6 31.7 14.4 7.1 4.9 2.4 Annual Average Annual Average PM10 Annual Average PM2.5 31/07/2014 - 30/07/2015 4.2 2.5 2.1 0.7 0.4 0.3 21/04/2014- 20/04/2015 4.7 2.8 2.2 0.7 0.4 0.4 31/07/2015 - 30/07/2016 5.2 2.5 1.6 0.8 0.4 0.3 1/01/2016 - 31/12/2016 3.9 1.8 1.2 0.6 0.3 0.2 8/03/2016 - 7/03/2017 2.9 1.2 1.0 0.5 0.2 0.2

[57]

Based on his modelling, Todoroski opined that: 1. the annual average concentrations for both PM10 and PM2.5 were approximately five times greater than what would have been experienced if only 5.59 ha had been exposed at any one time; 2. having regard to the results for wind erosion only, "if all activities at the Site were to be considered" compliance with the EPA's [Environment Protection Authority's] criteria for PM2.5 would be "unlikely"; 3. the 24 hour average PM10 levels for "total wind erosion impacts" - that is, modelling the total exposed areas based on Watts's evidence - exceeded the cumulative EPA 24 hour PM10 criteria for each receptor modelled in both charge periods (before including any background dust), whereas this criteria was not exceeded when only 5.59 ha was modelled; and 4. it was "possible" that the 24 hour average PM2.5 levels might also exceed the EPA criteria if background and other dust sources were taken into account, although he could not be certain.
In summary, Todoroski's opinion was that "considering background levels, and additional dust from the other project activities that occur during periods of less favourable dispersion, the critical EPA and DPIE [the Department] criteria for PM10 and PM2.5 would have been exceeded due to excess dust from the Site" (second Todoroski report at [100]).
Todoroski was cross-examined on the necessity to model both PM10 and, more specifically, PM2.5 particles (T202:32-204:50). He justified his reliance on the latter by reference to his on site observations and his analysis of a number of soil samples collected from the site.
He was also cross-examined about complaints from the surrounding residents (T205:06-207:21). He stated that while they were relevant, he did not ask for a record of these complaints because he had completed his modelling and if it had been undertaken correctly, the records would not make any difference (T207:19-21). This was, according to Leda, a flaw in Todoroski's methodology because he should have compared the results of his modelling against the independent evidence of dust complaints from residents.
Todoroski conceded that he did not take into account dust occasioned by earth moving activities on the site because he had insufficient information to do so (T207:23-48 and 216:04-06).
Further, while accepting that the presence of a water cart would assist in the suppression of dust formation (T210:18), his modelling did not take this into account.
Todoroski presented as an argumentative witness (T203:07-08) whose impartiality was at times questionable and who erred on the side of advocacy on behalf of the prosecution (see, for example, T200:25-28, T202:11-12, 203, 210:36-43, 214:20-23, 217:46, 218:14, 220:32-33). This diminishes the weight to be placed upon his evidence.
The prosecutor also relied on the lay affidavit evidence of Desmond McGovern dated 11 October 2017, a resident of Currumbin Waters, who deposed to his experience of dust emitted from the site at his house. Dust complaints were received from other residents which were exhibited to the affidavit of McLachlan.
The residents' complaints related to a short period of time during the charge periods, viz, February 2016. In his affidavit, McGovern deposed to a dust complaint on 27 February 2016.
The complaints were not ignored. Leda ceased work after Shaw shut the site down.
In assessing actual impacts on air quality in 2018, Roddis, who by contrast, presented his evidence in a measured, well reasoned, and wholly impartial manner, reviewed the complaints received by Leda and the prosecutor in relation to dust emitted from the site in February 2016 and compared them to wind roses present during that period. With the exception of three days, all of the remaining complaint days experienced a significant southerly wind component with wind speeds that had the potential to generate airborne particulate from exposed surfaces. This finding was consistent with some complaints referring to "strong southerlies".
Roddis was of the opinion that the meteorological conditions experienced during February 2016 were anomalous and would lend themselves to the creation of particulate emissions from controlled areas. In his first report, Roddis noted the specific days on which dust complaints were recorded in February 2016, and by reference to his wind roses analysis, stated that (p 10): …with the exception of 16 February, 20 February and 25 February 2016, all other complaint days contain a significant southerly wind component with wind speeds with the potential to generate airborne particulate matter from exposed surfaces. It is therefore unsurprising that, under such conditions, residents located less than 100m downwind of site activities may have witnessed visible dust in the vicinity of the site.
Roddis gave evidence about the seasonability of the wind roses in February 2016 (T417:40-418:04): Q ...in terms of seasonality, the subsequent year, which was February 2017, you've included that wind rose at page 25, page 30 of the affidavit, and can you tell her Honour what it's showing in terms of wind directions in the speed that we're talking about relative to mobilisation of dust? A Yes. So we're now looking at page 25 of my June 2018 affidavit, where you see the wind roses for the February 2017, so one year subsequent to the complaints period and you are seeing, for wind speeds with the potential to raise dust from exposed surface, the majority of those winds are actually from the northerly quadrant, whereas the previous year they were from the southerly quadrant and more significant, which is why in my affidavit I refer to these anomalous events. Q That is the February 2016 event? A Correct.
In short, it was his view that any dust impacts, especially insofar as they were amenity impacts, were limited to February 2016 due to the unusual wind conditions present at that time. In other words, the dust impacts were limited to a one month period across the entirety of the charge periods for the first and second summons.
Roddis also noted McLachlan's contemporaneous observation that, "at the times of…inspections/surveillance activities, no dust was observed to be leaving the site" and that "control measures that are in place during these works…appears to generally [be] in accordance with the approvals" (the first Roddis report pp 15-16).
In 2018, Roddis assumed that the total exposed disturbed area from bulk earthworks between 9 April 2015 and 18 May 2016 was that as calculated by Watts in May 2017, namely, 54.31 ha.
Roddis applied atmospheric dispersion modelling techniques referencing the meteorological data for the period in question in accordance with the EPA's Approved Methods for the Modelling and Assessment of Air Pollutants in NSW. This modelling was used to assess the impact of the exposed, or uncontrolled and wind erodible, areas of land subject to the bulk earthworks for the relevant periods.
Results at five receptor locations, representative of residential receptors to the north-west of the site, were compared against the EPA's ambient air quality criteria for particulate-related health effects (PM10 - being particulate matter less than 10 micrometers in aerodynamic diameter) and amenity (dust disputations). Based on this comparative analysis, Roddis was of the opinion that the likely impacts on air quality as a result of the bulk earthworks were minor and were well within the EPA's ambient air quality criteria for particulate-related health effects and amenity.
Roddis noted that his opinion was consistent with an examination of the wind roses during the period in question, which revealed that wind speeds in the zone where wind erosion could be expected to occur were relatively infrequent and, when these stronger winds occurred, tended to be northerly in orientation blowing from the nearest discrete receptor locations towards the Leda site.
Roddis also considered the potential impacts of the exposure of 5.59 ha of land were having regard to the atmospheric modelling techniques and the wind rose data, and was of the opinion that such impacts would be relatively trivial and, again, within the EPA's health and amenity criteria.
In 2020 Roddis considered Leda (No 4) and opined that the factual findings made by the Court therein did not alter the findings and opinions expressed in his first report in 2018. He considered the range of estimated exposed and disturbed area in Precincts 1, 2, 9, 11, the SSPP, and the COS, as agreed between the parties, and observed a variable of plus or minus 25% to the exposed and disturbed area that he had assumed in his first report. Applying a range of plus or minus 25% to the results contained in his first report, he observed that the application of these percentile ranges to his dispersion modelling results did not alter his conclusions.
In respect of Todoroski, Roddis opined as follows: 1. Todoroski had placed great emphasis on PM2.5 metrics which was irregular and not relevant to the evaluation of wind erosion potential. PM2.5 was not typically a focus in the assessment of air quality impacts from mechanically generated dust because the PM2.5 particle size fraction (being particulate matter less than 2.5 micrometers in aerodynamic diameter) was considered an indicator of combustion emissions (such as vehicle exhausts, domestic wood burning, and bushfires). For mechanically generated dust, PM10 comprised the pollutant of interest and any adverse off-site particulate matter impacts would be expected to be in the larger size fraction (that is, PM10 and above). As Roddis stated, "there is no evidence that PM2.5 is a significant source from wind erosion sources" (T412:02-03); 2. there were three errors in Todoroski's dispersion modelling: 1. first, by assuming that PM2.5 comprised 7.5% of the total airborne particulate under wind erosion, which increased the recommended default value by 50%; 2. second, the application of an erosion emission factor of 0.4kg/ha/hour which was four times the factor that Todoroski had generally used in his earlier work, and was not a factor typically used in dust modelling in the State; and 3. third, assuming that wind erosion was present for hours where the wind was above an adopted wind erosion threshold velocity of 5m/s was in ignorance of the influence of the moisture conditions of soil and rainfall; 1. Todoroski's analysis could not, as Todoroski had stated, be considered "conservative" in circumstances where he had: 1. applied emission factors intended for surfaces that were continually disturbed and had not accounted for rainfall-induced crusting which significantly limited the erosion potential below that upon which the wind erosion emission factors were based; 2. stated that he had not taken into account emissions that would occur from earthmoving activities; and 3. based his opinion on emission estimates and model predictions of annual average particulate concentrations which would necessarily take into account significant periods where the site would be attended with water carts; 1. Todoroski's opinion with respect to the wind erosion potential of clay was inherently flawed because clay was a material that, when dry, agglomerated to form a solid and did not become a wind-erodible fine material; 2. although Todoroski had used the PM2.5 metric to examine health-related impacts, he had not evaluated dust deposition impacts, which were of primary concern to the residents who made complaints to the Department; and 3. Todoroski's opinion was based on an assumption that the area of exposed and disturbed land was that calculated by Watts. However, those calculations represented the maximum area of the exposed and disturbed land. Todoroski did not account for the range of disturbed areas of land, including areas at the minimum end of the range, which was consistent with an assessment of the evidence more in favour of Leda.

[58]

Findings in Relation to Dust and Air Quality

Even if Roddis's evidence was accepted in its entirety, it nevertheless demonstrated that the impact on the residents: 1. was proportional to the amount of land exposed. Therefore, if Leda had exposed land between 10 and 12 times in excess of what was permitted as exposed area, the dust emissions were between 10 and 12 times what they otherwise would have been; and 2. resulted in an increased loss of amenity from dust emissions, particularly on days when a strong southerly wind was blowing.
Moreover, Todoroski's evidence is the only evidence available with respect to the first summons. This evidence establishes, consistent with Roddis's modelled wind roses, that during a number of months - not just February 2016 - there were strong southerlies which were blowing over the site towards residents. This gives rise to likely harm due to dust emissions. This harm is in addition to the actual harm to the amenity of residents in February 2016 when some were so affected that they took videos and wrote complaints about the dust.
In addition, I accept Todoroski's reasoning for modelling both PM2.5 and PM10 based on the sampling that he undertook. Todoroski formed his opinion that PM2.5 was appropriate based upon his analysis of particles that size located in the soil on site. Roddis did not visit the site and he was not prepared to review his opinion even after his own soil samples revealed the existence of particles of that size.
Overall Todoroski's written and oral evidence was, however, confusing and difficult to follow (see generally the criticisms identified in Leda (No 6)), and, as a consequence, less weight may be placed upon it. I accept the rejection by Roddis of the characterisation of Todoroski's estimates as "conservative" for the reasons that Roddis gives.
Nevertheless, having regard to the evidence of both Todoroski and Roddis, I am satisfied that during the relevant charge periods there were dust emissions that caused: 1. actual harm to the amenity of some residents to the north of the site occasioned by the commission of the offences. This harm was of short lived duration and usually minor in nature and limited to days when a southerly wind was blowing. However, on 27 February 2016, as Roddis deposed, the harm was more than trivial with significant dust deposition occurring; 2. on other days, the modelling of both Todoroski and Roddis establishes that there was likely harm to the amenity of residents to the north of the site. As the evidence discloses, the greater the exposed area above that which was permitted under the Project Approval, the greater the likelihood that PM2.5 and PM10 particulates would be emitted from the site in volumes that would impact the environment. Again, this likely harm was limited both in duration and nature; and 3. there was no harm whatsoever, actual or likely, to human health.

[60]

Third Summons (Breach of Condition 41)

Davis was not asked to consider whether Leda's non-compliance with condition 41 of the Project Approval impacted upon the ecology of the surrounding environment, including any habitat of the Wallum Froglet.
The Wallum Froglet (Crinia tinnula) is a threatened fauna species. Historical records indicate that Wallum Froglets have been recorded in the area sounding the earthen mound.
Leda's ecologist, Warren, was instructed to report on the environmental impacts arising from the excavation and removal of the earthen mound. In his opinion, the removal of the earthen mound would not have resulted in any significant impact on the Wallum Froglet population recorded on or adjacent to the Cobaki Estate site.
Warren had assessed the ecological area surrounding the earthen mound since 2016. On 12 and 15 September 2016 he directed Mathew Jenkins (JWA ecologist) to complete a fauna survey of the drain area next to the former stockpile area. The purpose of the survey was to capture and remove, to an appropriate location, any native fauna occurring within the drain adjacent to the former stockpile area and, in particular, Wallum Froglets. No Wallum Froglets were located or heard calling within the drain itself, but they were observed in an adjacent area. Four species of fauna were observed in the drain: an eastern dwarf tree frog, an empire gudgeon, a freshwater eel, and a mosquito fish. The mosquito fish is a pest species known to prey on frogs, which may explain the absence of Wallum Froglets in the drain. In Warren's opinion, the only species of significance that would have been affected by the removal of the stockpile was the Wallum Froglet.
In 2017 Warren inspected the earthen mound and identified three native frog species, including the Wallum Froglet. Warren noted that the Wallum Froglet had moved into the stockpile area after the removal of the stockpile.
Warren noted that the stockpile itself would not have provided habitat for the Wallum Froglet because it neither contained features that would have allowed it to be classified as an endangered ecological community nor would it have contained any plant species listed as threatened in the Biodiversity Conservation Act 2016.
Warren considered the test of significance for threatened species set out in s 73 of the Biodiversity Conservation Act. Applying the test had the consequence that it was unlikely that a significant impact on threatened species or ecological communities would have occurred during the removal of the earthen mound.
In short, Warren considered it highly unlikely that there were any adverse environmental impacts arising from the excavation and removal of the stockpile.
Irrespective of the Court's findings on the independence of Warren, in the absence of any challenge to his evidence regarding the earthen stockpile, or any other evidence adduced by the prosecutor regarding the environmental harm caused by the breach of condition 41, the Court finds that there has been no actual or likely environmental harm as a consequence of the commission of the offence the subject of the third summons, other than the harm caused to the integrity of the planning system discussed below.

[62]

Harm to the Integrity of the Planning System

As has been acknowledged in various cases, by committing offences against the EPAA Leda caused harm to the integrity of the planning and development regime in this State. As Preston J stated in Gittany Constructions Pty Ltd v Sutherland Shire Council [2006] NSWLEC 242; (2006) 145 LGERA 189 (at [104]-[105]): 104. There is a need for the upholding of the integrity of the system of planning and development control. 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: Byron Shire Council v Fletcher (2005) 143 LGERA 155 at [60]; Cameron v Eurobodalla Shire Council at [72] and Byers v Leichhardt Municipal Council at [83], [85]. 105. If development consent has been obtained, as in this case, it is also integral to the planning system that the conditions of consent are complied with: Carlino v Leichhardt Municipal Council at [32].
A similar sentiment was expressed in Pittwater Council v Scahill [2009] NSWLEC 12; (2009) 165 LGERA 289 (at [46]).
Having said this, two observations should be made. First, in circumstances where the offences the subject of the first, second and third summonses involved conduct the result of a mistaken belief as to the proper construction and operation of the Project Approval in the context of multiple historical consents operating across the site, this harm is nominal.
Second, in relation to the first and second summonses, as Alexander noted in his affidavit, at the time the Project Approval was amended to introduce condition 21A, the exposed and disturbed area on the site already exceeded 5 ha (the condition was introduced on 29 May 2013 by MOD1). Watts's evidence was that there was 98.10 ha exposed and disturbed land at the site as at 17 May 2013 and 98.07 ha as at 15 June 2013. In other words, Leda did not conduct bulk earthworks to the scale that it did in breach of condition 21A after that condition had come into effect. Viewed this way, the harm to the integrity of the planning system is not as objectively serious as it would otherwise have been.
The same observations cannot, however, be made in respect of the offence the subject of the fourth summons.

[63]

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

For harm to be reasonably foreseeable, the precise cause of the event or events giving rise to the harm is not required to be foreseen (Environment Protection Authority v Baida Poultry Pty Ltd [2008] NSWLEC 280; (2008) 163 LGERA 71 at [31]-[32]).
In my opinion, it was reasonably foreseeable that if Leda was incorrect in its belief that various historical consents permitted it to have exposed bulk earthworks in excess of 5.59 ha at any one time contrary to the Project Approval, the additional unlawfully exposed earthworks could result in sediment mobilising off site into the environmentally sensitive saltmarsh and into the receiving waters of the Cobaki Creek and Cobaki Broadwater, where some of it would be deposited.
Leda knew that the receiving environment, especially the saltmarsh, Cobaki Creek and Cobaki Broadwater, were sensitive. Various saltmarsh rehabilitation plans had demonstrated the sensitive nature of the saltmarsh, and Mills had put them on notice of the risk of sediment in the saltmarsh in her June and July 2015 reports.
Leda also knew that Cobaki Creek and Cobaki Broadwater were being monitored for environmental harm, so it was foreseeable that increased sediment mobilisation offsite caused by the offending would cause environmental harm because it increased the turbidity of the water and had the capacity to smother the surfaces that it settled on.
In addition, it was reasonably foreseeable that the increased exposed area could generate dust that, especially on particularly windy days, could leave the site and affect the amenity of the residents nearby. In terms of dust, for example, Leda was aware that the suppression of dust generation was one of the reasons why condition 21A was imposed as a condition to the Project Approval and it had been on notice since 2014 that residents to the north had been affected by dust from the site.
This foreseeability was heightened by the fact that Leda was aware that from time to time its ESCs had failed, that repairs to its ESCs were not carried out in a timely manner, that its sediment basins were not always flocculated, that it only had one water truck on site that did not work on the weekend or when the site was not operational, and that dust events had previously occurred. The risk of likely, if not actual, environmental harm of the nature found earlier in this judgment being caused by an excess of exposed bulk earthworks contrary to the Project Approval was therefore reasonably foreseeable by Leda. As is discussed further immediately below, reliance by Leda on its EOs and Shaw did not absolve it in this regard.

[64]

Practical Measures Which Could Have Been Taken to Prevent or Mitigate the Environmental Harm

The prosecutor submitted that there were practical measures that Leda could have taken to prevent or mitigate the environmental harm caused by the commission of the offence, for example: 1. it could have sought legal advice to assist it in 'reconciling' its obligations under the Project Approval with the existing consents governing the development of the site to avoid contravening condition 21A b; 2. it could have implemented a system to monitor and ensure compliance with its obligations under the Project Approval; 3. while it had installed various ESCs, when problems with those measures were identified, it could have attended to them and carried out repairs in a more timely manner; 4. it could have more regularly inspected the ESCs between the saltmarsh and Precinct 9; 5. it could have flocculated and emptied sediment basins as advised by Shaw and the EOs, rather than pumping turbid water into the surrounding environment; and 6. on days when southerlies were blowing, even if unseasonable, it could have taken extra precautions to ensure that dust was suppressed, for example, it could have halted or not commenced operations or employed more water trucks to supress the dust.
The prosecutor characterised the steps that Leda did take as reactive rather than proactive.
Leda refuted such a description, submitting that it had taken all practical measures to prevent or, at the very least, mitigate, the environmental harm occasioned by its offending. Leda relied upon the reports of Shaw, its PCA, to alert it to problems. Shaw would email Leda a report within 24 hours of his inspection of the site (ROI Q/A 438 to 440). If recommendations were made, Hughes was responsible for implementing those recommendations (Q/A 441 to 448). With respect to compliance with condition 21A of the Project Approval, Leda relied on Shaw's advice and his interpretation of it.
Shaw had confidence in Leda's ability to manage its ESCs and stated that he was largely satisfied with the measures that it had put in place in this regard during the offence periods (see his evidence summarised above and at Q/A 283 and 300). As Van Rij stated, "he's [Shaw] so happy about the site that he wants to ‑ to use it as an example of how a site should be managed. We were quite chuffed" (Q/A 423).
Leda also relied upon the evidence of the EOs (Sargeant, Mills, and Alexander) to demonstrate that: 1. ESCs had been installed on the site; 2. sedimentation basins appeared to be satisfactorily maintained and working to address rainfall events; 3. drainage from the active construction sites was being directed through necessary controls prior to entering any watercourse; 4. stockpiles on the site had sediment fences erected around them; 5. turf had been laid on exposed areas surrounding drains and waterways, minimising erosion from the site; 6. waterways appeared to be in a suitable and stable condition; 7. water quality of the receiving environment and the sediment basins was generally acceptable; 8. appropriate measures to suppress dust were taken, including through the use of water trucks, and dust was being sufficiently controlled; 9. the treatment train appeared to be working appropriately; and 10. the site was generally clean and tidy.
Leda emphasised that Mills, who had inspected the site more than any other person, did not have any major concerns as to the ESCs that were in place during her time as EO. Mills stated that she had not observed any significant movement of sediment across the site, or any deposit of sediment into any waterways or receiving environments adjoining the site, as a result of any delay by Leda in implementing any of her recommendations.
Leda acknowledged that there were occasions when its conduct was dilatory with respect to recommendations made by its EOs. However, it submitted that this was not always the case. For example: 1. Alexander recalled dust complaints received from nearby neighbours that were acted upon immediately; 2. during the dust event on 27 February 2016, upon receipt of a complaint, the site was shut down by Shaw while the incident was dealt with; 3. Sargeant recalled an occasion where he observed a drop in the water pH level and Leda acted upon the issue immediately and quickly resolved it; and 4. Sargeant deposed to Leda providing an immediate response to ponding issues by installing a pump in the protected vegetation areas to pump out the additional water.
In his affidavit sworn on 27 April 2020, Alexander recalled, in particular, Leda's response to the introduction of condition 21A of the Project Approval (at [32]-[33]): 32. I recall that, during my time as environmental consultant for the Project at the Site, Condition 21A of the project approval was inserted to apply retrospectively. At the time Condition 21A came into effect, there was already more than 5 hectares of bulk earthworks exposed. 33. I recall that rehabilitation works were carried out to reduce the amount of exposed earthworks, particularly in precincts 1 and 2. This included grass coverage.
The evidence from the EOs and Shaw was consistent with the evidence given by Martens about the adequacy of the ESCs, especially having regard to Leda's obligations under the Project Approval (in particular, conditions 3 and 44(a) and (b)).
Martens had regard to the monthly EO reports for the site and the Nearmap aerial photographs and observed that: 1. sediment fences were installed throughout the works areas and had been, or were being, maintained or replaced; 2. there was a detailed on-going program of sediment fence inspection, reporting, and repair, including weekly inspections and monthly formal reporting; 3. an aerial photograph dated October 2014 showed a sediment basin having been constructed as required by the approved drawings and the downstream batter of the basin provided a robust means of sediment filtration; 4. an aerial photograph dated April 2015 showed the installation of a low flow drainage channel constructed on the southern side of Cobaki Parkway, as required by the approved drawings; and 5. there was a low flow drainage channel constructed on the southern side of Cobaki Parkway which Martens observed on 13 November 2017.
Moreover, on the basis of Martens's site observations and his review of the Council's water quality sampling data, he was of the opinion that there had been no observed impact on Cobaki Creek arising from the earthworks within the site, which suggested that the ESCs were adequate to capture any contributing catchment runoff and sediment.
And as Martens noted (at [54] of his report): I also observe that even where all erosion and sediment control measures are properly designed and implemented, there always remains a risk that the control measures may fail due to a variety of reasons such as construction methodology, unforeseen events, and intense rainfall. On a large construction site such as the Cobaki Estate, I would expect that over the course of the construction period, there would be numerous instances where erosion and sediment control measures may fail.
Leda asserted that contrary to the prosecutor's submissions, its employees were monitoring compliance with the Project Approval and, in particular, sought to ensure that the ESCs were implemented in accordance with that consent. For example, in addition to Yeats, Ecovale (the earthmoving subsidiary of Leda run by Hughes) was also engaged to implement the ESCs. Shaw inspected Ecovale's work and provided feedback. In addition, Leda's EO's and consulting engineers inspected the site and provided advice, recommendations, and instructions, to ensure compliance with ESC controls.
In September 2016 Yeats acknowledged that while the ESCs on site were not strictly in conformity with the ESC plans, they were implemented with the intention to stop pollution (Q/A 385): Were there sediment erosion control places - measures in place? Yes, they were. Were they exactly in accordance with this plan? No, they weren't. Did they deliver an intent? Yes they did. What is the intent? To ensure that downstream receiving waters aren't polluted. Did we have any pollution issues downstream? No, we didn't. Was it strictly in accordance with the plan? No, it wasn't, however, you know, from my understanding, there was always an intent or an effort to ensure that the intent of these plans were implemented on site, yeah.
Yeats explained that he knew that there was no "downstream pollution" because Leda had put in place water monitoring procedures that were carried out by an EO on a frequent basis and the EO "had not identified any pollution or breaches of environmental obligations" (Q/A 395). A report with the results would be provided to Leda with an assessment as to whether there were any problems. The report was examined by Van Rij (Q/A 388). If the report identified any problems, Leda would "go deal with that" (Q/A 388).
Yeats's evidence was consistent with that of Van Rij. Van Rij acknowledged the sensitive environment surrounding the site as something that Leda was aware of (Q/A 437). Noting that Leda had "never had an issue on the site" (Q/A 437), he stated that (Q/A 433): Again, we rely on ‑ on the reports of our, you know, various inspecting authorities. For example, every time there's a major storm event, and I think also periodically, as in once a month, but certainly after each storm event, our environmental officer takes water samples, both at the sedimentation and erosion ponds, but also in Cobaki Creek, and to my knowledge, and I'm near certain about this, in the 14 years that I've been there, there's never been an event of any kind of pollution of - of the receiving environment, so I'm happy. Mike Shaw is happy, apparently the superintendent engineer is happy, and so we proceed on ‑ on that basis. There was an event, I think it was in 2010, where there was a major storm, about May I think it was, I'm talking about a really serious flood no sedimentation and erosion measures would have caused - would have prevented any kind of sedimentation of ‑ of the - of the receiving environment under those circumstances, they're not designed for that, but other than that we've had no, to my knowledge, and I'm near certain about this, never had any problems whatsoever in regard to sedimentation and erosion affecting the receiving environment. Cobaki Creek and Cobaki Broadwater.
In Van Rij's ROI he noted that "there is nothing that has ever been reported to me, and I am as near certain as I can be that there has never been an incident of any kind of consequence of sedimentation and erosion" (Q/A 437). This was also consistent with the recollection of Scotcher (Q/A 459-460).
Leda further contended that it had in place an adequate reporting and communications regime between its managers and employees. If any non-compliance issues were raised in correspondence by Shaw, that correspondence was provided to the whole Leda team, including Hughes, and steps were taken to implement any instructions and recommendations (Yeats ROI Q/A 451 to 452). If there was an issue raised by Shaw about works being conducted outside of a borrow area, those works would cease until the issue was resolved (Q/A 453 to 455).
From July 2015 and upon the commencement of the Department's investigation into the site, Yeats notes that Leda was of the view that it needed to "up our game" (Q/A 390). When the Department initially raised concerns about sediment fencing, Van Rij spoke to Bob Ell, who became involved and directed Van Rij, Yates, Scotcher, and Hughes to ensure that onsite activities were improved, and conditions complied with. This was facilitated through meetings and discussions about ways in which its processes and systems could improve to ensure that Leda could meet the Department's requirements (Q/A 53 to 56, 60 to 64, 93 to 97, 140 to 143 and 443). Yeats noted that Bob Ell would ask his team to "Come back to me. What do we need to do to sort this out?" (Q/A 55) because "we need to go sort this out" (Q/A 143). As a consequence of the Department's investigation of the project, Leda engaged Biome to provide recommendations (see the Biome report), which were implemented in a timely manner.
Accordingly, it was Leda's submission that it had in effect taken all practical measures available to it to prevent or mitigate the environmental harm caused by the commission of the offences.
But the fact remains that had compliance with condition 21A of the Project Approval been ensured by Leda, the offences would not have been committed and the resultant environmental harm would have been avoided. More specifically, had Leda in fact 'reconciled' the Project Approval with the historical consents applying to the site by taking positive steps to verify its belief that it was permitted to exceed the 5.59 ha limit, the breaches of the Project Approval would not have occurred. Leda failed to do so.
Leda submitted that in circumstances where it honestly but mistakenly believed that it was carrying out the bulk earthworks lawfully pursuant to historical consents governing the site, obtaining advice from its lawyers was not a practical measure that it should have undertaken. I disagree. While its failure to do so in all the circumstances does not constitute reckless or criminally negligent behaviour on its part, there can be no doubt that taking this prudent measure would have avoided the breaches that followed.
While I accept that reliance was placed on Shaw and others to advise Leda as to any non-compliance with the Project Approval, at no point did Leda seek advice as to the proper construction of its relevant conditions. It could have easily done so.
In addition, it must be recalled that the employment of Shaw and the EOs was a requirement of the Project Approval. Failure to do so would have been a breach of that approval. In other words, their employment cannot be characterised as a separate practical measure that Leda took to manage environmental risk and avoid environmental harm. With respect to Leda's particular reliance on Shaw's advice concerning ESCs, it must be remembered that under the Project Approval his role was limited to being satisfied that the ESCs were installed and operational on site prior to the commencement of works (not during). In any event, his inspection reports, and those of the EOs, established that there were deficiencies with the ESCs and that Leda often had to be reminded to rectify those deficiencies.
More could have been done to ensure that the maintenance of the ESCs on site was attended to and that any issues were rectified in a timely manner, especially with respect to the ESCs protecting the saltmarsh. Even Shaw, who was generally satisfied with the ESCs on site, observed that sediment was leaving the site into the saltmarsh. There is also no doubt that as a result of the commission of the offences the subject of the first and second summonses sediment mobilised offsite and into the Cobaki receiving waters, as depicted in the Nearmap aerial photographs before the Court. There was evidence, for example, that for rainfall events of greater than 25 mm "deposition areas were mobilised and/or devices such as sediment basins failed" (Sargeant). While some of this sediment was contained, a "proportion" was not. Accordingly, measures could have been taken to ensure that for rainfall events of greater than 25 mm, adequate ESCs were put in place to contain all of the sediment on site.
Further, in respect of dust and air quality, one simple measure to avoid impacts upon the amenity of nearby residents would have been, as the prosecutor submitted, to cease (or never commence) operations on days when strong southerlies were prevalent. That this was possible was demonstrated by the swift action that Leda took on 27 February 2016. While it is recognised that the winds in February 2016 were anomalous, this did not matter. On days when the winds were strong enough to generate airborne particulate from exposed surfaces, either operations could have ceased or other measures (such as the increased use of water carts) could have been put in place to mitigate dust emissions.
In conclusion, while Leda acted expeditiously to resolve many of the issues brought to its attention, there is substance to the prosecutor's criticism that the practical measures that Leda took to avoid environmental harm caused by the commission of the offences were reactive rather than proactive. I find that Leda could have done more to avoid the harm occasioned by the commission of the offences.
Having said this, it must nevertheless be acknowledged that Leda did make an effort to avoid environmental harm in the development of the site. There can be no doubt that on the whole it sought to ensure that adequate ESCs were implemented and that environmental impacts were minimised. This is reflected in the minimal number of complaints associated with the development, which was unusual given its scope and size. When problems arose they were generally addressed in a timely fashion.

[71]

Prior Convictions

In Chief Executive, Office of Environment and Heritage v Leda Management Services Pty Ltd [2013] NSWLEC 111, Leda Management Services Pty Ltd was convicted of an offence against s 156A of the National Parks and Wildlife Act 1974 for causing damage to 3,200m2 of vegetation, beds and banks forming part of Blacks Creek on land reserved or acquired under that Act. The offence occurred at the boundary of Cudgen Nature Reserve near Tweed Heads during the course of a development the subject of a concept approval under Pt 3A of the EPAA. In that case, the Court characterised the offence as follows (at [43]): 43. The offence is of low to medium objective gravity given the nature of the offence, the significant harm to the environment in a nature reserve even if relatively short term due to the likelihood of successful rehabilitation, the low level of criminality in the commission of the offence, that the harm caused was foreseeable and the Defendant had control over the causes giving rise to the offence.
The Court discounted the penalty by 35% in recognition of the defendant's cooperation with the prosecutor and its willingness to undertake a rehabilitation plan (at [47], [48] and [68]). It was fined $32,500.
The commission of a prior environmental offence by a company in the Leda corporate group is an aggravating factor in the proceedings (s 21A(2)(d)).
In addition, its commission means that Leda cannot take the benefit of s 21A(3)(e) of the CSPA.
A number of penalty infringement notices ("PIN") have been issued in respect of the development on the site between January 2013 and March 2017, arising out of breaches of the Project Approval. Because these are not convictions, the Court has disregarded them for the purpose of both ss 21A(2)(d) and 21A(3)(e) of the CSPA (Environment Protection Authority v Koppers Carbon Materials & Chemicals Pty Ltd [2021] NSWLEC 12 at [79]). They may, however, be taken into account for the purposes of determining Leda's likelihood of reoffending and in relation to specific deterrence.

[73]

Early Pleas of Guilty

A plea of guilty entered by a defendant at the first available opportunity can attract a maximum discount of 25% off the penalty imposed as a reflection of the utilitarian value of the pleas to the criminal justice system (ss 21A(3)(k) and 22 of the CSPA and R v Thomson; R v Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383 [160]). What is regarded as an early plea will vary in the circumstances of the case (Thomson at [160(iii)]).
In respect of the first, second, and third summonses, Leda pleaded not guilty, and therefore, no discount applies.
However, in relation to the second summons, Leda contended that the late amendment of the second summons presented no real opportunity for it to enter a plea. This is because prior to the amendment the charge remained consistent with a tier 1 offence pursuant to s 125(a) of the EPAA.
In part for the reasons given later (at [605]-[611]), this contention should be rejected. This is because the decision of Pain J in Leda determined that the elements that Leda argued were "consistent with" a tier 1 offence were particulars only, to be established at the sentence hearing. There was, therefore, nothing preventing Leda from, at the very latest, entering a plea of guilty after the handing down of her Honour's reasons in Leda.
Leda did, however, plead guilty to the fourth summons (work without a CC) on 25 May 2018. The summons was filed in the Court on 22 June 2017. However, the last of the prosecutor's brief was not served on Leda until 22 December 2017. As a consequence, pursuant to Court orders Leda was not required to serve its response under s 247F of the Criminal Procedure Act 1986 until 6 April 2018. The matter was set down for hearing on 9 March 2018. On 16 March 2018 Leda notified the prosecutor that it would be pleading guilty to the summons, a matter that was communicated to the Court. When the matter was next listed for mention on 25 May 2018, Leda formally entered its guilty plea to the summons.
Leda properly acknowledged that the circumstances of the entry of the plea do not entitle it to the full 25% discount on the basis that it was not entered at the earliest available opportunity, but it submitted that it was entitled to a significant discount on the basis that the plea vitiated any trial preparation for the parties.
In my view, having regard to all of the circumstances of its entry, a discount of 15% is warranted for the plea of guilty. Had the plea been entered prior to the setting down of the matter for a contested hearing on liability, the discount would have been greater. No explanation has been provided to the Court as why the plea was not entered earlier, especially after the service of the final prosecution material on 22 December 2017.

[74]

Contrition and Remorse

Pursuant to s 21A(3)(i) of the CSPA, remorse will only be a mitigating factor if: (i) the offender has provided evidence that he or she has accepted responsibility for his or her actions, and (ii) the offender has acknowledged any injury, loss or damage caused by his or her actions or made reparation for such injury, loss or damage (or both)
In Waste Recycling Preston J stated (at [203], and see also at [204]-[214]): 203. Contrition and remorse will be more readily shown by the offender taking actions, rather than offering smooth apologies through their legal representatives…
His Honour summarised four ways by which a defendant may demonstrate genuine contrition and remorse: 1. the efficiency of action rectifying the harm caused or likely to be caused by the commission of the offences (at [204]); 2. the voluntary reporting of the commission of the offences and any consequential environmental harm to the authorities (at [210]); 3. the measures taken to address the causes of the commission of the offences to prevent their occurrence in the future (at [212]); and 4. the personal appearance of corporate executives in Court to give evidence of the defendant's regret and a plan of action to avoid the repetition of the offences (at [214]).
The prosecution correctly noted that with the exception of the plea of guilty to the fourth summons, there was no other evidence of remorse or contrition before the Court in respect of the charges.
Leda submitted that it would have been somewhat inconsistent for it to, on the one hand, maintain pleas of not guilty for three of the four offences charged, and on the other hand, express remorse for its actions in circumstances where it considered that it acted lawfully and appropriately at all times (citing R v Baugh [1999] NSWCCA 131 at [42]-[43] and Holroyd City Council v Khoury (No 3) [2011] NSWLEC 210 at [29]).
I do not agree. There was nothing preventing Leda from subsequently acknowledging that, consistent with the Court's findings, it had been mistaken as to the operation of conditions 21A and 41 of the Project Approval, but nevertheless apologising for the harm caused by its offending. It could have, for example, expressed remorse for the harm caused to the saltmarsh. It did not. The cases cited by Leda do not derogate from this conclusion.
In the result, an absence of any contrition and remorse expressed by Leda for the offending the subject of the first, second, and third summonses, cannot be taken into account by the Court as a factor in mitigation pursuant to s 21A(3)(i) of the CSPA.
In addition to the entry of a guilty plea to the fourth summons, as the chronology of events demonstrates for that charge, as soon as Leda was notified by Shaw of the unlawful works in Precinct 2, it immediately ceased activity, admitted the breach, and took remedial measures to prevent or mitigate any harm caused by the unlawful development occurring. In this regard, Leda has provided evidence that it has accepted responsibility for its actions, acknowledged the potential for environmental damage caused by its illegal activity, and sought to mitigate or avoid any harm from occurring. The Court takes this demonstrated contrition into account.

[78]

General and Specific Deterrence

The Court is required to take into account both specific and general deterrence (Walden v Hensler [1987] HCA 54; (1987) 163 CLR 561 at 569 per Brennan J). One of the purposes of the Court in imposing a sentence is to prevent crime by deterring the offender and other persons from committing similar offences. This purpose is enshrined in s 3A(b) of the CSPA (Gittany at [188] and [192] and Environment Protection Authority v Rands [2019] NSWLEC 23 at [161]).
The penalty imposed by the Court must serve as a general deterrent (Environment Protection Authority v Crown in the Right of New South Wales (Office of Environment and Heritage) [2019] NSWLEC 66 at [175]-[177]). General deterrence is vital "to ensure that the penalty imposed acts to deter those who might engage in similar activities from committing like offences" (Mouawad v The Hills Shire Council [2013] NSWLEC 165; (2013) 199 LGERA 28 at [188] and see also Axer at 359).
In Environment Protection Authority v Ballina Shire Council [2006] NSWLEC 289; (2006) 148 LGERA 278 Preston J discussed general deterrence in the context of environmental offending in the following terms (at [66]-[68]): 66. The sentence must also serve as a public deterrent. It is the duty of the Court to see that the sentence which is imposed will operate as a powerful factor in preventing the commission of similar crimes by those who might otherwise be tempted by the prospect that only a light punishment will be imposed: R v Rushby [1977] 1 NSWLR 594 at 597-598. 67. This factor is particularly relevant to environmental offences. Persons will not be deterred from committing environmental offences by nominal fines: Environment Protection Authority v Capdate Pty Ltd (1993) 78 LGERA 349 at 354; and Director General of National Parks and Wildlife v Wilkinson [2002] NSWLEC 171 (27 September 2002) at [85] and [93]. 68. The deterrent effect of a fine must send an important message that laws requiring the conservation of the environment and compliance with approvals to carry out activities that may harm the environment, must be complied with. Also, the community must be satisfied that, by the Court's sentence, the offender is given his just desserts.
More apposite are the remarks made by Craig J in Minister for Planning v Moolarben Coal Mines Pty Ltd [2010] NSWLEC 147; (2010) 175 LGERA 93. In that case, the defendant pleaded guilty to an offence against s 125 of the EPAA of clearing 4.1 ha of land for the purposes of erecting a boundary fence contrary to an approval granted under Pt 3A of that Act. During the course of explaining the purpose of sentencing his Honour said (at [46]): 46. The sentencing purpose of general deterrence identified in s 3A(b) is of particular significance in this matter. So much was submitted by the prosecutor and not gainsaid, in terms, by the defendant. It is a corporation engaged in a multimillion dollar coalmining project, an activity which in all its aspects had the potential to have a very significant impact upon the environment. Corporations engaged in activities of this kind must be reminded of the obligations imposed upon them to ascertain the laws and controls applicable to the carrying out of any activity associated with a particular project in order to ascertain the need for any consent or approval to that activity so that the appropriate environmental assessment can be undertaken before any approval is given to it. The sentence therefore needs to make clear to the community at large that the failure of a corporation to take these steps will be visited with significant financial penalties.
Similar to Moolarben, the development of Cobaki estate is a large multimillion dollar project with the potential to have a significant impact upon the environment.
The sentencing purpose of specific deterrence was addressed in Environment Protection Authority v Ravensworth Operations Pty Ltd [2012] NSWLEC 222 (at [48]): 48. Specific deterrence is a purpose of sentencing under s 3A(b) of the CSP Act and has been considered relevant where a defendant continues in the same area of operation in which an incident has occurred. In taking specific deterrence into account in Environment Protection Authority v Moolarben Coal Operations Pty Ltd (No 2) [2012] NSWLEC 80 (Moolarben (No 2)) Craig J cited at [113] the following passage in Axer at 359 per Mahoney JA: The legislation does not seek merely to prevent deliberate or negligent pollution. It envisages that, at least in many cases, proper precautions must be taken to ensure that pollution does not occur. Experience has shown that it is not enough merely to take care: accidents will happen. The legislation envisages that in many cases care must be supplemented by positive precautions; business must be arranged and precautions taken so as to ensure that pollution will not occur.
A sentence must be imposed that makes it irrational for defendants to disobey the law in the development and construction industry (Axer at 359-360 and Waste Recycling at [229]-[232]). Any penalty imposed must be more than the cost of doing business.
Leda asserted that it was not necessary to have regard to any deterrence as an element of its punishment because the breach of the EPAA the subject of the first, second, and third summonses was a "function of a not uncomplicated need to analyse not unambiguous provisions of a project approval, to be reconciled with a series of development consents". Accordingly, it did not apply.
I disagree. Notwithstanding the factual circumstances of this case, general deterrence is needed to motivate those involved in the development industry, especially those undertaking large scale development, to ensure that the activities that they undertake are at all times lawful and that they understand the approval documents pursuant to which those activities are undertaken. As the evidence discloses, at no point did Leda attempt to 'reconcile' the historical consents that it had assumed governed and permitted their bulk earthwork activities, to the extent that there was a conflict between those consents and the Project Approval. General deterrence is therefore needed to ensure that developers do not merely assume - but check - that the works that they are undertaking are lawful.
Specific deterrence is needed in the present proceedings for much the same reason. In addition, Cobaki Estate is a major project with work under the Project Approval continuing on site. Leda must be deterred from further breaches of the Project Approval during the remainder of the project. Moreover, as referred to above, Leda has been the subject of several PINs in respect of the development on the site. In all the circumstances, it is appropriate that an element of specific deterrence informs the determination of an appropriate sentence for the commission of the offences, especially the offences the subject of the first, second and third summonses.

[80]

Consistency in Sentencing

The task of the sentencing court is to seek evenhandedness in the imposition of a sentence (R v Oliver (1980) 7 A Crim R 174 at 177 and R v Visconti [1982] 2 NSWLR 104 at 107C). However, care must be taken in achieving consistency. There is always difficulty comparing the penalty in one case with that in another because of the wide divergence of facts and circumstances in each (Axer at 365). The sentence imposed in a single case does not demonstrate the limits of a sentencing court's discretion (Cabonne Shire Council v Environment Protection Authority [2001] NSWCCA 280; (2001) 115 LGERA 304 at [35] and Environment Protection Authority v Barnes [2006] NSWCCA 246 at [79]). Furthermore, as both parties submitted, limited use can be made of comparable cases where the circumstances surrounding the offences and the offender's subjective circumstances are quite diverse (Hili v R; Jones v R [2010] HCA 45; (2010) 242 CLR 520 at [54]-[55]; Barbaro v The Queen; Zirilla v The Queen [2014] HCA 2; (2014) 253 CLR 58 at [28] and [40] and [41]; and Pham v R [2015] HCA 39; (2015) 256 CLR 550 at [28]-[32]).
In the present case the prosecutor submitted that there were no comparable cases. Leda, urging caution upon the Court, nevertheless furnished the Court with a table of comparative cases to be used as a "historical 'yardstick'" only.
In Burwood Council v Erector Group Pty Ltd; Burwood Council v Liverpool Developing Pty Ltd [2017] NSWLEC 20 the Chief Judge fined each defendant a total sum of $80,000 and ordered the defendants to pay the council's costs in the sum of $14,000. The orders (save for the order as to costs) were set aside in Erector Group Pty Ltd v Burwood Council; Liverpool Developing Pty Ltd v Burwood Council [2018] NSWCCA 56; (2018) 232 LGERA 304 and each defendant was fined a total sum of $35,000. The offences arose after the defendants undertook excavation work in breach of a development consent in contravention of ss 76A(1), 81A(2) and 125(1) of the EPAA. The defendants pleaded guilty to all charges.
The Chief Judge found that the offences were in the low range of objective seriousness. The Chief Judge held that there was a sufficient causal connection between the offences and damage to the adjoining buildings for that damage to be considered as an aggravating factor. On appeal, the Chief Justice held that the necessary causal connection between the offence and the damage to the adjoining buildings had not been established beyond reasonable doubt and ordered that the monetary penalties be reduced accordingly. The Chief Justice otherwise agreed with the Chief Judge's assessment of the objective seriousness of the offences and agreed that although the defendants were unlikely to reoffend, that there was a need for specific deterrence. The Chief Justice also agreed that the defendants were genuinely remorseful.
In Secretary, Department of Planning and Environment v Charbon Coal Pty Ltd [2016] NSWLEC 106 the defendant was fined $175,000 and ordered to pay the prosecutor's costs of $55,000. The defendant had built a haul road in a location other than the approved location in contravention of ss 75D(2) and 125(1) of the EPAA. The defendant had pleaded guilty to the charges at the earliest available opportunity. The construction of the haul road had caused harm to an Aboriginal heritage site and resulted in the unlawful clearing of vegetation. The Court held that the offence was in the low range of moderate objective seriousness. There was no significant ecological impact but the harm from a cultural and social perspective was considerable. The offence was committed negligently, thereby increasing its objective seriousness. The Court had regard to subjective considerations, including that the harm was not so insubstantial to be a mitigating factor, that the defendant had no prior convictions but did have a prior PIN, that the defendant was of good corporate character, that the defendant had demonstrated remorse and contrition, and that the defendant had pleaded guilty at the earliest available opportunity. There was a need for specific deterrence because the defendant's parent company continued to operate other mines.
The Court in Secretary, Department of Planning and Environment v Boggabri Coal Pty Ltd [2014] NSWLEC 154 fined the defendant $82,500 and ordered it to pay the prosecutor's agreed costs of $38,000. The defendant had stockpiled material on land outside the project boundary for approved construction works in contravention of ss 125 and 76A(1) of the EPAA. The defendant had pleaded guilty at the earliest available opportunity. There was no evidence as to harm. The Chief Judge found that the offence was of low objective seriousness. The offence was not committed negligently or recklessly. The offence was not committed for financial gain. The Chief Judge considered subjective factors including the defendant's early guilty plea, the fact that the defendant had no prior convictions, the defendant's expression of contrition and remorse, the defendant's good corporate character, and the fact that the defendant had fully cooperated with the prosecutor. There was no need for specific deterrence.
The decision in Director-General Department of Planning & Infrastructure v Integra Coal Operations Pty Ltd [2012] NSWLEC 255; (2012) 192 LGERA 281 concerned the defendant's breach of a height limitation under its project approval in contravention of ss 75D and 125(1) of the EPAA. The defendant pleaded guilty to the offence and was fined $84,000 and ordered to pay the prosecutor's costs of $38,000. The offence was of low to medium objective seriousness. The offence resulted from the defendant's systemic failures. The Court had regard to various subjective considerations including that the offence was not deliberate, that the defendant pleaded guilty early, that the defendant had no prior convictions but that three PINs had been issued against it, that the defendant had cooperated with the prosecutor and had immediately ceased operations when it was informed of the contravention, that the defendant was of good corporate character, and steps had been taken by the defendant to ensure that it did not re-offend.
The defendant was fined the sum of $70,000 in Minister for Planning v Hunter Quarries Pty Ltd [2010] NSWLEC 246 and ordered to pay agreed costs in the amount of $23,000. The defendant operated a hard rock quarry and breached a condition of a project approval that it would not produce or transport more than 500,000 tonnes of material annually in contravention of ss 76A and 125 of the EPAA. The defendant pleaded guilty to the offence at the earliest available opportunity. The offence was of low to medium objective seriousness. The offence was not deliberate, but was committed carelessly as it occurred as a result of the systemic failure of the defendant to adequately monitor its production and transportation records. No harm resulted from the contravention. The offence was, however, committed in the hope of a future commercial benefit. The Court had regard to the defendant's early guilty plea, an absence of prior convictions, that the defendant was of good corporate character, that it had demonstrated remorse and contrition, and that it had cooperated with the prosecutor including by agreement to a statement of facts and the payment of the prosecutor's costs as agreed. It was not necessary to have regard to specific deterrence given the defendant's remorse and the measures taken by it to ensure that it did not reoffend.
Similarly, the defendant was fined $70,000 and ordered to pay costs in the agreed amount of $55,000 in Minister for Planning v Moolarben Coal Mines Pty Ltd [2010] NSWLEC 147; (2010) 175 LGERA 93. The defendant cleared 4.1 ha of native vegetation resulting in the loss of 1.3 ha of endangered ecological habitat to satisfy a contractual obligation to construct a boundary fence. The clearing breached a condition of the defendant's project approval and thereby contravened ss 75D and 125 of the EPAA.
The defendant pleaded guilty at the earliest available opportunity. The offence was of low to medium objective seriousness. The offence compromised the integrity of the planning system and caused actual, albeit minimal, harm to the environment. The defendant thought it was obligated contractually under the Mining Act 1992 to build the boundary fence. The Department of Planning had, however, communicated to the defendant that it required consent for the clearing work. The defendant continued the clearing works even after this communication. It was relevant that the defendant was put on notice that the clearing works may have been unlawful and that the defendant was sufficiently well resourced to secure legal advice regarding the activity. The harm caused was foreseeable and the defendant had complete control over the causes of harm to the environment. The Court had regard to subjective considerations that included the defendant's early plea of guilty, the defendant's lack of prior convictions, the defendant's good corporate character and that it was unlikely to re-offend, the defendant's demonstration of contrition and remorse and steps taken by it to avoid re-offending (making modifications to its operations, retaining experts to prepare a detailed impact assessment, and volunteering substantial offsets), and the defendant's co-operation with the prosecutor, including by agreeing to a statement of facts.
Finally, in Minister for Planning v Coalpac Pty Ltd [2008] NSWLEC 271, Coalpac Pty Ltd, the defendant carried out development under a project approval contrary to a condition that it was permitted to produce up to 350,000 tonnes of saleable coal annually. The defendant became aware that it would exceed this limit and made a formal application to increase the amount. The defendant maintained the excess production rates pending Ministerial approval and exceeded its limit by 80%. The Minister eventually approved the proposed increase. The defendant was fined $200,000 and ordered to pay the prosecutor's costs in the amount of $55,000. The Court considered that the limit was market driven and that environmental assessments had been undertaken only with respect to the production of 350,000 tonnes of saleable coal. The only environmental impact of the offence was the lost opportunity for an environmental assessment to be completed before the increased production was carried out. There was no other harm to the environment. The offence was committed intentionally and for financial gain. The offence compromised the integrity of the planning system because it was committed intentionally over a significant period of time. The Court had regard to subjective considerations including the defendant's early plea of guilty, that the defendant had no prior convictions, that the defendant had demonstrated remorse and condition, that the defendant had assisted the prosecutor, and that it had good prospects of rehabilitation. Specific deterrence was necessary given the significant profit obtained from the breach.
None of the cases discussed above are truly comparable to the facts of the present proceedings but they nevertheless provide some, albeit limited, assistance to the Court in determining appropriate sentences.

[82]

Costs

The prosecutor seeks an order under s 257B of the Criminal Procedure Act for its professional costs as agreed or assessed, except for the costs arising out of the interlocutory hearings before Pain J in Leda where costs were reserved.
In the exercise of its sentencing discretion in relation to the quantum of any monetary penalty to be imposed on Leda, the Court can take into account the costs that an offender may be ordered, or agrees, to pay (Environment Protection Authority v Barnes [2006] NSWCCA 246 at [78] and [88]). In doing so, the Court must be mindful that the payment of the prosecutor's costs is not a reason for reducing any penalty to be imposed in a particular case lower than that suggested by the general pattern of sentencing for the relevant offence (Liverpool City Council v Leppington Pastoral Co Pty [2010] NSWLEC 170 at [50]).
Leda submitted that the prosecutor's late amendment to the second summons was conduct that did not entitle the prosecutor to an order for costs with respect to both the first and second summonses.
It was not a matter of dispute that the prosecutor sought, with the consent of Leda, albeit reserving its position as to costs, to amend the second summons five working days prior to the sentencing hearing and approximately three years after proceedings commenced. Until the amendment, Leda was charged with intentionally committing a serious environmental offence that was likely to cause significant harm to the environment (a tier 1 offence). The amendments had the effect of making the offence a tier 2 offence and rendering otiose the interlocutory proceedings before Pain J in Leda.
Leda submitted that the prosecutor's dilatory conduct in seeking to amend the second summons, without any explanation for the delay, was, given its knowledge of the history of the proceedings and the evidence, unreasonable. This was especially so in circumstances where Leda was denied the opportunity of considering its position in relation to the amended second summons. In particular, Leda contended that it was denied the opportunity of considering whether or not to plead guilty to that charge, negotiate a plea deal, or adduce different or additional expert evidence.
Leda submitted that it had expended significant costs in retaining experts to respond to the original charge in the second summons, namely, that it had caused significant harm to the environment.
Finally, Leda submitted that while such a significant amendment may be cured by costs alone in civil proceedings, the lost opportunity for Leda in how it might have defended or conceded the charge the subject of the second summons, and by extension the first summons (which is temporally contiguous), cannot be so remedied. In these circumstances, the prosecutor's conduct ought to disentitle it to its costs with respect to the first and second summonses.
The Court agrees that the prosecutor is not entitled to any of its costs related to the hearing before Pain J (estimated to be approximately $20,000: T645:31). This may be contrasted with the considerably higher costs of Leda for the interlocutory proceedings before Pain J of almost $90,000 (T619:03), which, as Leda has correctly observed, are unrecoverable as against the prosecutor.
However, the Court does not accept that the prosecutor ought not be awarded its remaining costs of the first and second summons as agreed or assessed. This is because: 1. other than submissions from the bar table, there was no evidence from Leda that, had the charge the subject of the second summons been amended earlier, it would have entered a different plea or conducted its response to the charge differently; 2. even if it had pleaded guilty to the charges contained in the first and second summonses (as amended), it would nevertheless have had to adduce evidence concerning the minimal or no environmental harm that it maintained was caused by the commission of those offences, not only to respond to the prosecutor's case on environmental harm, but in order to demonstrate that the harm was not substantial for the purpose of s 21A(3)(a) of the CSPA. No unnecessary costs were therefore incurred; 3. in any event, none of the prosecutor's experts were instructed to opine on whether there had been "significant" or "substantial" harm caused by Leda's offending. Put another way, their evidence was not directed to this issue. That some chose to describe the harm in such terms was because it was convenient to do so by way of summary. Leda's experts had to meet this evidence for the reasons explained above. It was not accurate to submit, as Leda did, that it had misdirected its expert witnesses by reason of the abandoned particulars of the unamended second summons and caused it to incur unnecessary expense in the process. Leda's experts concluded that there was no or limited actual or likely environmental harm caused by the commission of the offences. Their evidence was neither wasted nor tainted. It was necessary in order to assess the objective seriousness of the offending. Leda did not seek to demonstrate how the evidence adduced would have been materially different as a consequence of the amendment of the second summons; 4. if Leda was prejudiced by the amendment, it could have sought an adjournment of the sentence hearing. It did not do so; and 5. the injustice that Leda submits that it has suffered as a result of the late amendment is misconceived. The changes to the second summons did no more than amend the particulars under a provision that resulted in a lesser maximum penalty, but which did not traverse the findings of liability. The amendment effected to the second summons did not result in Leda being charged with a different offence; the offence with which Leda has been found guilty as charged in the amended second summons is the same offence as that contained in the unamended summons. There was nothing preventing Leda from pleading guilty to the first or second summons. A plea of guilty is no more than an acceptance by the defendant of the elements of the offence, not the particulars to that offence. The elements of the offence the subject of the second summons have remained the same throughout.

[83]

Totality Principle

The totality principle is a relevant consideration when determining, as with the present proceedings, an aggregate penalty in sentencing for multiple offences (Mill v The Queen [1988] HCA 70; (1988) 166 CLR at 62 to 63; Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610 at [40]; Johnson v The Queen [2004] HCA 15; (2004) 78 ALJR 616 at [18]; and Water NSW v Barlow [2019] NSWLEC 30; (2019) 244 LGERA 1 at [111]-[112]). The task of the Court is to ensure that the overall sentence is neither too harsh nor too lenient.
Care must nevertheless be taken "to ensure that any adjustment of individual sentences does not cause the aggregate sentence not to reflect the total criminality of the offender's conduct or the sentence for any individual offence to become disproportionate to the objective gravity of that offence" (Rawson at [222]). The identified risk is that if "sentences are reduced substantially, offenders may view that they can escape punishment for successive deliberate discrete offences" (Gittany at [199] and [201]; R v Harris [2007] NSWCCA 130; (2007) 171 A Crim R 267 at [46]; and R v Wheeler [2000] NSWCCA 34 at [36]-[37]). That is to say, the application of the totality principle must not cause public confidence in the administration of justice to be undermined by any perception that "what is in effect being offered is some kind of discount for multiple offending" (R v MAK; R v MSK [2006] NSWCCA 381; (2006) 167 A Crim R 159 at [18]).
In R v Toohey [2019] NSWCCA 182, Gleeson JA summarised the application of the principle as follows (at [56]): 56. As to totality, it is well established that questions of accumulation and concurrence are, generally speaking, matters for determination by a sentencing judge in the exercise of his or her discretion. The focus is on a consideration of the similarity, differences and the degree of connection between the offences both in time and type to ascertain the extent to which the sentence for one offence can comprehend and reflect the criminality of the other: Pannowitz v R [2016] NSWCCA 13 at [40] (Davies J, Hoeben CJ at CL and Beech-Jones J agreeing). That calls for the identification and an evaluation of the relevant factors pertaining to the offences and will include the nature and seriousness of each offence.
The principle applies with different force where the penalty imposed is a fine. In Camilleri's Kirby P (as he then was) said (at 704): The principle of totality is applicable where the penalty imposed is by way of fine: see R v Sgroi (1989) 40 A Crim R 197 at 203. However, it may be that the principle of totality may not have the same force in the case of the imposition of fines, as opposed to the imposition of imprisonment where it has a special operation: see R v Brown (1982) 5 A Crim R 404 at 407.
This passage was quoted with approval in Barnes (at [46]) where Kirby P explained the application of the totality principle to fines in this way (at [49] and [50]): 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. 50. Here, the fine in respect of count 1 ($4,000) was significantly different from that in respect of count 2 ($500). However, the disparity by itself does not suggest error. Where there are multiple offences, each punishable by a custodial sentence, the totality principle may find expression through the complete or partial accumulation of sentences, or through making all or some of the sentences concurrent (cf. Pearce v The Queen (1998) 194 CLR 610, per McHugh, Hayne and Callinan JJ at 624 (para 45)). However, there is obviously no room for partial accumulation or concurrence in the case of fines. If the sentencing Judge believed that the totality principle required an adjustment to the fines which may otherwise be appropriate, the amount of each fine had to be altered, applying the sentencing principles suggested in Johnson v The Queen (2004) 205 ALR 346.
The parties agreed that the totality principle applied in determining the appropriate sentences for the four offences contrary to s 125(1) of the EPAA.
In this context, the Court takes into account the continuing nature of the offences the subject of the first and second summonses. That is, the charges brought by the first and second summonses do not arise out of separate criminal conduct but must be viewed as one continuous act. But for the change to the EPAA effective as of 31 July 2015, there would have been one offence charged for the period 21 April 2014 to 7 March 2017.
The offence the subject of the third summons is a breach of the same provision of the EPAA and concerns bulk earthworks in contravention of the Project Approval for the same project on the same site. It took place over two days during the offence period for the second summons. It also attracts the application of the totality principle.
Finally, in respect of the fourth summons, Leda accepted that the offence was of a different character to the other charges. However, as Leda correctly submitted, some adjustment of the fine to be imposed in respect of that offence is required to account for the fact that the charge arose out of bulk earthworks conducted on the same site and in relation to the same project as the other charges.
In summary, because the elements of each offence are relevantly similar and co-incident in respect of both the offending conduct and the circumstances giving rise to the commission of the offences over the entirety of the charge periods, the application of the totality principle to all four charges is warranted, albeit to a lesser degree with respect to the charge the subject of the fourth summons.

[84]

Application of Sections 10 and 10A of the CSPA

As foreshadowed by its application at the commencement of the sentence hearing (see Secretary, Department of Planning and Environment v Leda Manorstead Pty Ltd (No 5) [2020] NSWLEC 65), Leda submitted that in light of the evidence disclosing that, with the exception of the charge the subject of the fourth summons, the offences were committed by reason of a mistaken belief as to the proper construction of the Project Approval, and given that the commission of the offences gave rise to minimal, if any, environmental harm, the charges should be dismissed pursuant to s 10 of the CSPA.
Section 10(1)(a) of the CSPA provides that: 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 - (a) an order directing that the relevant charge be dismissed…
Pursuant to s 10(3) the Court must take into account the following factors in deciding whether or not to make an order under s 10(1): (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.
Section 10A(1) provides that "a court that convicts an offender may dispose of the proceedings without imposing any other penalty."
The following legal principles have been distilled from the authorities concerning the application of s 10(1)(a) of the CSPA (see the summary in Heatscape Pty Ltd v Mahoney (No 2) [2016] NSWLEC 45; (2016) 217 LGERA 332 at [275]-[279]). From the outset it should be noted that there is no prohibition against the application of s 10 to a corporate offender (see s 21 of the Interpretation Act 1987 and the definition of "person": Chief Executive, Office of Environment and Heritage v Ausgrid [2013] NSWLEC 51; (2013) 199 LGERA 1 at [105]).
The factors in s 10(3) are all but mandatory considerations. In Hoffenberg v The District Court of New South Wales [2010] NSWCA 142 Basten JA relevantly described the structure of s 10 as follows (at [8] and [10]-[11]): 8 … Section 10 is relevantly broken into three parts, the first conferring a power to make an order of a particular kind; the second prescribing that the order "may be made" if the court is satisfied of certain matters, although not stating that the court must be so satisfied to make such an order, and the third identifying factors which, in considering whether to make such an order, the court "is to have regard to". While the logic of the new structure is apparent, its effect is obscured. … 10 Further, to say that a court "is to have regard to" certain factors (see sub-s (3)), suggests that these are mandatory considerations. However, they are really conclusions reached by the court in the course of its considerations. As is clear from s 4 of the South Australian Act, a critical question for the court may be whether the nature of the offence can properly be described as "trivial" and whether the circumstances in which it was committed were in fact "extenuating circumstances". Properly understood, the court is not to "have regard to" those factors, but to determine whether those factors exist. Finally, it seems that these are not in truth mandatory considerations, because par (d) includes "any other matter that the court thinks proper to consider". It is not meaningful to make that a mandatory consideration. Again the purpose is to ensure the court considers the full range of factors it considers relevant. 11 Despite its form, s 10 should be understood as having the same general effect as s 4 of the South Australian Act. That is, it will not be expedient for the Court to release a person guilty of an offence without proceeding to conviction unless one or more of the factors set out in sub-s (3)(a), (b) or (c) is satisfied or there are other circumstances, not clearly fitting within those characteristics, which would justify such a course. Thus, a court now has a broader discretionary power than in the past; relevantly for the question of jurisdictional error, there is no statement of impermissible considerations.
The factors to which the Court "is to have regard to" are not exhaustive (R v Paris [2001] NSWCCA 83 at [42]) and are considered to be disjunctive in their operation (Paris at [42]). That is, it is not necessary for all of the factors contained in s 10(3) to be present before the Court can exercise its discretion to make an order.
An order under s 10(1) generally applies to offences that are considered to be trivial in nature, however, the converse is equally true (R v Piccin (No 2) [2001] NSWCCA 323 at [25]; Chin v Ryde City Council [2004] NSWCCA 167; (2004) 133 LGERA 312 at [38]; and Terrey v Department of Environment, Climate Change and Water [2011] NSWLEC 141 at [114]).
An order under s 10 (or its former statutory incarnation, s 556A of the Crimes Act 1900) is usually "rare" in the case of environmental offences, including offences concerning a breach of planning laws (Hunter Water Board v State Rail Authority of New South Wales (No 2) (1992) 75 LGRA 22 at 23; Environment Protection Authority v Attard [2000] NSWCCA 242 at [5]; Thorneloe v Filipowski [2001] NSWCCA 213; (2001) 52 NSWLR 60 at [165]-[169]; Mosman Municipal Council v Menai Excavations Pty Ltd [2002] NSWLEC 132; 122 LGERA 89 at [35]; Pace Farm Egg Products at [24]; El-Khouri at [34]; and Terrey at [109]).
Nonetheless, the environmental and planning characterisation of the offence is no bar to the application of s 10(1) of the CSPA (El-Khouri at [34]; Gerondal v Eurobodalla Shire Council [2009] NSWLEC 160 at [47]-[51]; and Parramatta City Council v Cheng [2010] NSWLEC 94 at [41]-[45]).
Having said this, the circumstances in which a s 10(1) order is appropriate are considered to be limited where the environmental offence is one of strict liability (Blue Mountains City Council v Carlon [2008] NSWLEC 296 at [70]-[71] and Terrey at [110]).
But the fact that the offences in question are of strict liability does not preclude an order being made under s 10 of the CSPA (Filipowski v Fratelli D'Amato Srl [2000] NSWLEC 50; (2000) 108 LGERA 88 at [139]; Thorneloe at [171]; Filipowski v Hemina Holdings SA; Filipowski v Rajagopalan (No 2) [2009] NSWLEC 104 at [149]-[153]; and Lavorato v The Queen [2012] NSWCCA 61; (2012) 82 NSWLR 568 at [126]).
In relation to the application of s 10A of the CSPA, there is no statutory equivalent to the matters set out in s 10(3) of that Act applying to that provision. However, the learned author Stephen Odgers SC has opined that "utilisation of this option would be rare and for unusual cases" (Sentence (4th ed), 2018, Longueville Media Pty Ltd, [5.11]). For example, such an order was made in Bikhit v The Queen [2007] NSWCCA 202, where it was doubted that any offence was disclosed on the evidence but the appellant nevertheless maintained his plea of guilty.

[85]

First and Second Summonses

Leda relied upon the grounds identified in s 10(3)(c) and (d) of the CSPA as the basis upon which the Court could dismiss the charges the subject of the first and second summonses. Correctly, in my view, Leda did not contend that the offences were trivial. It could not because they were not.
Leda relied upon the fact that it was of good corporate character and the fact that its antecedents were limited to a single environmental offence committed in 2013 (s 10(3)(a) of the CSPA).
Leda submitted that the offence was committed in extenuating circumstances, namely, its mistaken belief as to the construction, operation and effect of condition 21A of the Project Approval together with the operation of the pre-existing historical consents over the site. In making this submission it relied upon the evidence of Shaw, its PCA, and its EOs, whose role it was to alert Leda to non-compliance with the Project Approval. In particular, it emphasised that Shaw's understanding of the term "exposed area" was consistent with Leda's construction of condition 21A b of that approval.
Finally, Leda repeated the submissions that it made in relation to costs to argue that the disentitling conduct engaged in by the prosecutor by amending the second summons was a matter that the Court ought to take into consideration for the purpose of s 10(1)(a) of the CSPA.
Dealing with the last contention first, for the reasons stated above, I neither accept that the prosecutor conducted itself in the egregious manner contended for (at [605]-[611]) by Leda nor do I accept that Leda suffered the disadvantage it claims as a result of the late amendment to the second summons.
Second, while I have found that Leda committed the offences charged in the first and second summons mistakenly, which is a matter that I take into account for the purpose of s 10(1), this must be balanced against the fact that Leda had the capacity to ensure that the offences, and the ensuing environmental harm, did not occur by taking the practical measures referred to earlier in this judgment (at [517]-[544]).
Further, just as the trivial nature of the offences is a matter that the Court can take into account in deciding to exercise its discretion under s 10(1)(a) of the CSPA, so too is the seriousness of the offences. In respect of the first and second summonses, the exposed area cleared was found to be by the Court in Leda (No 4) well in excess of the 5.59 ha permitted under the Project Approval. Actual and likely harm was occasioned by the commission of those offences. In addition, the offending conduct occurred over a protracted period of time. It was for all these reasons that the objective seriousness of the offences is characterised as low to moderate.
While the Court has found that Leda is generally of good character, it cannot ignore the fact that there are antecedents for environmental crime and that an element of specific deterrence is warranted in the imposition of an appropriate sentence. To dismiss the charges would not, in my view, appropriately denounce the conduct, either at an individual level, or at a general level for those involved in the construction industry.
Finally, the Court takes into account the fact that Leda did not plead guilty to these offences (although a plea of guilty will not preclude the application of s 10(1)(a): Matheson v Director of Public Prosecutions (NSW) [2008] NSWSC 550; (2008) 185 A Crim R 83 at [65]), and has expressed no contrition or remorse for its conduct.
Weighing up the relevant factors and circumstances of this case, I do not consider that an order under either ss 10(1) or 10A of the CSPA would be appropriate.

[89]

Publication Order

The prosecution supported the making of a publication order pursuant to s 250(1)(a) of the Protection of the Environment Operations Act 1997 (which applies Pt 8.3 of that Act to these proceedings by operation of s 126(2A) of the EPAA) in respect of the second, third, and fourth summonses only.
As accepted by the prosecutor, no publication order can be made in relation the first summons because s 126(2A) had not commenced prior to 30 July 2015, the end of the relevant charge period provided for in that summons ("on and from about 21 April 2014 and continuing to 30 July 2015") (Secretary, Department of Planning and Environment v AGL Upstream Infrastructure Investments Pty Ltd [2017] NSWLEC 2 at [30] and [133]). That provision was in force for the charge periods for the remaining offences.
In Environment Protection Authority v Crown in the Right of New South Wales [2019] NSWLEC 178 Duggan J usefully set out the principles to be derived from the authorities in determining whether or not to make a publication order, which I respectfully adopt and apply (at [84] and [86]): 84 Whether it is appropriate it impose a publication order in a sentence has been considered by this Court on a number of occasions. The principles to be derived from those authorities and the factors that have been considered in determining whether to make such an order can be summarised as follows: (1) The Court has a wide discretion as to whether to impose a publication order and the POEO Act does not identify, in terms, the circumstances in which such an order should or should not be made: Environment Protection Authority v Cargill Australia Limited [2004] NSWLEC 334 at [36]; (2) Publication orders assist in serving a deterrent purpose in environmental crimes: EPA v Waste Recycling Corporation (2006) 148 LGERA 299. Such a notice informs or reminds the public that such an offence exists, and may add some "sting" to the imposition of a fine. The objectives of general and specific deterrence are thus satisfied: Secretary, Department of Planning and Environment v SingTel Optus Pty Ltd [2019] NSWLEC 44 at [163]. A publication order operates as a message to the community that a holder of an EPL is under a heightened responsibility to ensure that their operations are conducted in accordance with the conditions of such licence: Environment Protection Authority v Biosolids Management Pty Limited [2004] NSWLEC 90; (3) Publicising sentences for environmental crime improves the effectiveness of sentences as a deterrent. This is particularly applicable to corporate offenders, who are susceptible to criminal stigma: Environment Protection Authority v Whitehaven Coal Mining Limited [2019] NSWLEC 27 at [242]; (4) Because a publication order is made in addition to, rather than instead of, any penalty, it ought not be considered in determining the quantum of any monetary penalty to be imposed (Environment Protection Authority v Incitec Ltd; (2003) 131 LGERA 176 at [58]-[59]); (5) If an order under s 250(1)(e) is imposed a publication order ought be made because it is important to publicise to the community at the time such an order is made that any works being undertaken are as a result of committing an offence: Environment Protection Authority v Centennial Newstan Pty Ltd [2006] NSWLEC 732 at [141]; (6) Existing adverse publicity in the media or an intention to self-publicise a conviction will not necessarily preclude the making of a publication order: Environment Protection Authority v Sibelco Australia Limited [2011] NSWLEC 160 at [104]; (7) The circumstances of the case may dictate that the interests of justice and the purpose of the publication will not be served if publication is ordered such as: where the offence is a first offence and the harm and objective seriousness of the offence is low; where publication of the offence is likely to confuse or mislead the reader in light of the substance earlier Court ordered publication: Environment Protection Authority v Cargill Australia Limited [2004] NSWLEC 334 at [41]; Environment Protection Authority v Cleary Bros (Bombo) Pty Ltd [2007] NSWLEC 466 at [169]; (8) Such an order is no less appropriate because the offences have been found to be of a low level of objective seriousness: Secretary, Department of Planning and Environment v SingTel Optus Pty Ltd [2019] NSWLEC 44 at [164]. … 86 The notion of the Defendant self-publishing the convictions does not have the same force or reach of a Court ordered publication order and I therefore consider it, in the circumstances of this case, inadequate to ensure general and specific deterrence. However, I do not, by these observations, seek to discourage the Defendant from undertaking its own publications of these convictions.
The prosecutor contended that a publication order was appropriate for the remaining offences involving, as they do, a corporate defendant and the breach of a project approval insofar as it would enhance general deterrence.
Because the offences were committed in New South Wales ("NSW"), the notice should be published in a paper with Statewide circulation. In addition, the notice should be published in local publications in both NSW and Queensland given the location of the site. There were no relevant trade publications in which the notice could be published.
Moreover, because Leda does not have its own website, the notice should also be published, the prosecutor argued, on the website of a related company, Leda Holdings Pty Limited ("Leda Holdings") (see Environment Protection Authority v Whitehaven Coal Mining Limited [2019] NSWLEC 27; (2019) 239 LGERA 31, where the Court made a publication order for a notice to published on the website of the defendant's parent company in circumstances where the corporate defendant did not have its own website). Leda Holdings owns shares in Leda and, more significantly, has a website that publishes information about a number of projects being undertaken by companies within the Leda Group, including the project at Cobaki Estate.
Leda opposed the making of a publication order for the following reasons: 1. first, because there is no power to made an order with respect to the first summons, an order in relation to the second summons would be inappropriate because the summonses relate to a single continuous activity which could not be reflected in the notice; 2. second, because the offences were a function of a need to analyse complex and ambiguous provisions of the Project Approval and various development consents, the concept of general deterrence does not feature as prominently as it otherwise would, and therefore, a principal purpose served by the publication of any notice would be thwarted; 3. third, as the affidavit of Ashleigh Cowper affirmed 16 October 2020 (a solicitor acting for Leda) demonstrated, the Court's findings in Leda (No 4) have been widely publicised across a number of media platforms since 2019, for example, The Daily Telegraph, The Courier Mail and the Tweed Daily News. Some of the imputations said to arise from the articles published in those newspapers included that the offences were likely to cause significant damage to the environment, written, as they were, prior to the amendment to the second summons. Furthermore, the Court's decision in Leda (No 4) has been published in a number of legal publications, the consequence of which is that the proceedings, and Leda's conduct, has been broadcast to the industry since 2019. Accordingly, there was no need for additional deterrence by the making of a publication order (citing Chief Executive, Office of Environment and Heritage v Kyluck Pty Limited (No 4) [2014] NSWLEC 74; (2014) 212 LGERA 1 at [102] and [103]); 4. fourth, the length of time since the offences were commenced (that is, almost seven years ago) (Kyluck at [103]); 5. fifth, publication orders are not required in circumstances where there has been no environmental harm, especially no actual harm, and the objective seriousness of Leda's offending conduct has been found to be low (citing various illustrations of cases where publication orders had been made only where actual harm had occurred by the commission of the offence); and 6. sixth, the making of a publication order would be a disproportionate response to the objective and subjective circumstances of the case. The imposition of a penalty, an order for costs, in addition to the payment by Leda of its own legal costs, is sufficiently punitive.
In my opinion, the arguments raised by Leda may be answered as follows: 1. first, merely because the publication order can only be directed towards the second, third, and fourth summonses does not render the making of such an order inappropriate. The purposes for which the publication order is made will nevertheless be served even if only part of the charge period may be referred to in it. If anything, the exclusion of one of the offences from the notice works to Leda's advantage, not disadvantage; 2. second, the Court has found that both specific and general deterrence are warranted aspects of the sentence to be imposed in these proceedings; 3. third, while Leda's offending conduct has already been publicised, the punishment for its conduct has not. It is important to publicise not only the findings of guilt but also the sentences, so that entities in the position of Leda are made aware of the consequences of breaching the EPAA. Furthermore, as Leda noted, the publicity surrounding the findings of guilt occurred almost two years ago and a publication order will be a timely reminder to those contemplating engaging in environmental crime not to do so. Publication of a notice will also have the benefit of clarifying previously published erroneous statements that significant harm to the environment was caused, or likely to be caused, by the commission of the offences; 4. fourth, there is no suggestion that the delay between the charges being laid and the conclusion of the sentence hearing is the fault of the prosecutor. Indeed, the reasons for the nearly six and half year delay are not known. But, as stated above, the fact of the delay, especially the nearly two year delay between the findings of guilt and the publication of this judgment, serves to reinforce the need for a publication order in order to remind, and therefore, deter, would be offenders; 5. fifth, in my view, general deterrence will not be achieved by reason of Leda having been "named and shamed" in the liability judgment or by reason of the publications referred to by Leda, especially given the effluxion of time. In the age of a 24 hour news cycle, two years is a very long time and those articles will have long been forgotten; 6. sixth, there is no authority for the proposition that publication orders are inappropriate in circumstances where there has been no environmental harm caused as a consequence of the offending. Leaving to one side the fact that the Court has made findings to the contrary (there was, in addition to the findings of likely harm, actual harm found to have occurred to the saltmarsh and there was actual harm to the amenity of the nearby residents by way of dust deposition), the authorities do not support this submission. For example, Whitehaven Coal is a case where only likely environmental harm was found by Court but a publication order was nevertheless made; and 7. seventh, there is nothing about the circumstances of this case that distinguishes it from the myriad of other cases in this Court where publication orders are made, together with an order for costs and the imposition of a monetary penalty. To make such an order is not disproportionate.
In my opinion, therefore, it is appropriate to make a publication order in respect of the charges the subject of the second, third and fourth summonses only. The form of the order is annexed to this judgment at 'A'.
Leda submitted that because it has filed a Notice of Intention to Appeal with the Court of Criminal Appeal ("the Notice of Intention"), the publication of any notice should be suspended until Leda's appeal has been determined. There is force in this submission. Injustice would result if the publication order was not stayed or suspended, the notice published, and Leda was successful on appeal. The order can be crafted in a manner that accounts for the mere lapsing of the Notice of Intention rather than a final determination upon appeal.
I also accept the submission by Leda that the time period for the notice to be published on Leda Holdings's website ought not be indefinite. Indefinite publication would be oppressive in the circumstances of these proceedings. Leda's suggestion that the publication of any notice on Leda Holdings's website should not exceed a period of three months from its date of initial publication should be embraced.
The Court was also in agreement with the parties that any notice placed on Leda Holdings's website should be published on the Cobaki Estate webpage of that website, rather than on the homepage of Leda Holdings's website.
Finally, I agree with Leda that requiring publication of a notice in two publications covering the same local community (Tweed Valley Weekly and Tweed Daily News) is unnecessary and oppressive. The notice should only be published in one publication, namely, the Tweed Daily News.

[90]

Orders

In conformity with the reasons given above, the Court makes the following orders: Proceeding 2017/186631 1. the defendant is convicted as charged; 2. the defendant is fined the sum of $75,000; Proceeding 2017/186632 1. the defendant is convicted as charged; 2. the defendant is fined the sum of $50,000; Proceeding 2017/186634 1. the defendant is convicted as charged; 2. the defendant is fined the sum of $30,000; Proceeding 2017/186635 1. the defendant is convicted as charged; 2. the defendant is fined the sum of $15,000; Proceedings 2017/186632, 186634, 186635 1. pursuant to s 250(1)(a) of the Protection of the Environment Operations Act 1997, Leda is, at its own expense, to: 1. within 28 days of the date of these orders, publicise the commission of the offences in proceedings 2017/186632, 186634, 186635 and the orders made against it in respect of those offences, by causing a notice in the form set out at annexure A to this judgment, at a minimum size of 12 cm x 15 cm to be published within the first 10 pages of: 1. The Daily Telegraph; 2. the Gold Coast Bulletin; and 3. the Tweed Daily News; 1. within 28 days of the date of these orders, publicise the commission of the offences in proceedings 2017/186632, 186634, 186635 and the orders made against it in respect of those offences, by causing a notice in the form set out at annexure A to this judgment to be placed on the Cobaki Estate webpage of the Leda Holdings Pty Ltd website (http://www.ledaholdings.com.au/index.php?com=com_property&action=view&category=5396&itemid=2) for a period of 90 days from the date of this judgment; 2. within 35 days of the date of these orders, provide to the prosecutor a complete copy of the pages of the publications and a screenshot of the website on which the notices have been published in accordance with orders 9(a) and (b) above; and 3. order 9(a), (b) and (c) is stayed from operation pending the final determination of any appeal against conviction and/or sentence in the Court of Criminal Appeal or the lapsing of any notice of intention to appeal against conviction or sentence filed in that Court; Proceedings 2017/186631, 186632, 186634, 186635 1. each party is to pay their own costs of the interlocutory proceedings before Pain J in Secretary, Department of Planning and Environment v Leda Manorstead Pty Ltd [2018] NSWLEC 114; 2. with the exception of the costs referred to above in order 10, pursuant to s 257B of the Criminal Procedure Act 1986 Leda is to pay the prosecutor's costs of the proceedings as determined under s 257G of that Act; and 3. the exhibits are to be returned.