The Council of the Municipality of Kiama v Pacific Real Estate

The carrying out of earthworks on the Land for the purpose of construction of an amusement ride.

The said development was carried out for the purpose of construction of the "Mammoth River Ride", an amusement ride the subject of development application no. 10.2007.65.1. Such development was permissible only with development consent pursuant to Division 10 of Part 4 of the Environmental Planning and Assessment Act , 1979 and Part 5 of the Environmental Planning and Assessment Regulation , 2000.

Particulars of the conduct of the defendant in the carrying out of the development

The said development was carried out for and on behalf of the defendant by servants, agents and/or contractors of the defendant and at the direction of the defendant.

Development consent to development application no. DA10.2007.65.1 ("the development application") for the construction of the "Mammoth River Ride" ("the development") on the Land.

Consent was granted by Council subject to the conditions set out in the Notice of Determination of Development Application DA10.2007.65.1 dated 24 May 2007 ("the development consent").

The carrying out of earthworks on the Land for the purpose of construction of the development between 24 May 2007 and continuing.

Allowing the development to be opened for occupation and use by the public as an amusement ride.

Particulars of the manner of contravention by the defendants

In breach of condition 2 under the heading "General" of the development consent, the defendant caused to be carried out the development on the Land prior to the issue of a Construction Certificate by directing servants, agents and/or contractors of the defendant to conduct excavation and earthmoving works on the Land.

In breach of condition 5 under the heading "General" of the development consent, the defendant allowed the development to be opened for occupation by the public and used as an amusement ride prior to satisfying all of the conditions of the development consent and prior to first making satisfactory arrangements with the Principal Certifying Authority.

In breach of condition 3(a) under the heading "Prior to Commencement of Works" of the development consent, the defendant commenced work on the development prior to having detailed plans and specifications of the development endorsed with a Construction Certificate by Council or an Accredited Certifier.

In breach of condition 3(b) under the heading "Prior to Commencement of Works" of the development consent, the defendant commenced work on the development prior to appointing a Principal Certifying Authority.

In breach of condition 3(c) under the heading "Prior to Commencement of Works" of the development consent, the defendant commenced work on the development prior to notifying Council of the appointment of a Principal Certifying Authority.

In breach of condition 3(d) under the heading "Prior to Commencement of Works" of the development consent, the defendant commenced work on the development prior to notifying Council of the defendants' intention to commence work on the development.

In breach of condition 4 under the heading "Prior to Commencement of Works" of the development consent, the defendant commenced work on the development prior to obtaining a Construction Certificate for any civil engineering works.

In breach of condition 5 under the heading "Prior to Commencement of Works" of the development consent, the defendant carried out work on the development without erecting a sign in a prominent position on the site which the building work was being carried out showing the name, address and telephone number of the Principal Certifying Authority for the work, and showing the name of the principal contractor (if any) for any building work and a telephone number on which that person may be contacted outside working hours, and stating that unauthorised entry to the work site is prohibited.

In breach of condition 2 under the heading "Erosion and Sedimentation Control and Amenity" of the development consent, the defendant failed to submit to the Certifying Authority for approval a detailed soil and water management plan designed in accordance with the requirements of the Department of Natural Resources prior to the issue of the Construction Certificate.

In breach of condition 2 under the heading "Erosion and Sedimentation Control and Amenity" of the development consent, the defendant commenced work on the development other than in accordance with an approved soil and water management plan.

In breach of condition 1 under the heading "Inspections" of the development consent, the defendant commenced work on the development at critical and other stages without those stages being inspected by the Principal Certifying Authority.

In breach of condition 4 under the heading "Building Construction" of the development consent, the defendant commenced work on the development prior to submitting to the Principal Certifying Authority details prepared by a practising Structural Engineer for any reinforced concrete slabs, footings or structural steel.

In breach of condition 1 under the heading "Prior to Occupation" of the development consent, the defendant allowed the development to be occupied by the public prior to the issue of an Occupation Certificate in relation to the development of part in accordance with section 109M of the Environmental Planning and Assessment Act , 1979. Factual Background and Evidence 5 The facts are not in dispute. They are derived from an agreed statement of facts and an affidavit sworn on behalf of the defendant by Mr Eddy, together with additional documentary material which was tendered. The deponent of the affidavit was not required for cross examination. 6 Mr James Ronald Eddy ("Mr Eddy") is a director of Pacific Real Estate. Mr Eddy is one of the owners of 1215 Jamberoo Road, Curramore, otherwise known as Lot 1 in DP 1070506 ("the Land"). 7 The development is known as Jamberoo Action Park ("the Park") and is located on the Land. Mr Eddy controls and runs the operations of the Park. The Land is situated in the council area of the Council of the Municipality of Kiama ("the council"). The Land is zoned Part 1(a) Rural and Part 7(e) Rural Environmental Protection (Hinterland) under Kiama Local Environment Plan 1996 ("the LEP"). The use of the Land as an amusement park is a prohibited use under the LEP. The Park enjoys the benefit of existing use rights. 8 Since the incorporation of Pacific Real Estate it has been almost continuously involved in the business of operating the Park. 9 On 21 May 2001, the council granted development consent to a master plan for the Park. This was DA 10.2001.81 ("the original DA"). The master plan included four stages. Stage four was for the Mammoth River Ride ("the Ride"). 10 On 10 October 2006, a development application was lodged with the council for Stage four of the master plan approval (DA10.2006.325.1 or "the second DA"). 11 On 18 October 2006, after discussions with council officers a minor amendment was made to the second DA, reflecting minor changes to the location of the Ride. 12 On 7 November 2006, the council advised Pacific Real Estate's architect to withdraw the second DA and to lodge a s 96(2) application in relation to the master plan approval (the original DA). On 8 November 2006 the application was lodged. 13 From November 2006 to February 2007, the council's planning officers were assessing the unamended plans lodged with the second DA, rather than the amended plans lodged with the s 96 application. Then in early February Pacific Real Estate was advised by the council to withdraw the s 96 application and that it was necessary to lodge a new development application. 14 On 19 March 2007, Bishop Hitchcock and Irwin Architects, acting on behalf of Pacific Real Estate, lodged development application no 10.2007.65.1 ("the DA") with the council to carry out various construction works in relation to the Ride. The construction works included: the installation of two tubular curved fibreglass raft slides (rides one and two); the construction of a concrete paved starting platform; the construction of a pool along with a perimeter deck; the installation of hydraulic pumping systems and a conveyor system to transport the rafts from the pool back up to the starting platform, together with new extensions of existing pathways to allow access to and from the Ride and to connect it with other rides and landscaping works in accordance with the submitted plans. 15 On 8 May 2007, Mr Fuller met Mr Eddy at the council chambers at the request of Mr Eddy and the following conversation took place: Fuller: "Council received the latest set of amended plans on 27 April 2007 and is awaiting completion of the notification period. We have also received some concerns regarding traffic issues and matters relating to water usage".

Fuller: "We have also been informed that earthworks have already commenced on the site without approval and we are investigating the matter".

Fuller: "Well you can't just do these things without approval".

Eddy: "You people are happy to accept the increased tourism dollars that I provide through the Park, but you're not prepared to help me".

Fuller: "You didn't approach me or anyone else here regarding your problems before you started work".

Eddy: "Bullshit. I have tried to talk to you a couple of times. I have tried to speak to Andrew Knowlson three times, the General Manager twice and even the Mayor to discuss these problems. I had to get things organised. I have a limited window of opportunity for these things. I couldn't have all that exposed earth around during my busy times".

Fuller: "That doesn't give you the right to commence work without consent".

Eddy: "Well you people just take too long. I've been told by the architect that Alison was actually considering the wrong plans for four months…and I'm on a tight schedule".

Fuller: "It was my understanding that there were delays on both sides but you still should not have commenced work".

Eddy: "Well that do you want me to do? Do you want me to stop work?"

Fuller: "I intend to investigate the matter today and it would be in your best interests not to continue as it may not assist your situation". 16 Pursuant to this conversation, Mr Eddy gave instructions on behalf of Pacific Real Estate to stop work at the Park. The works that had been carried out prior to the conversation with Mr Fuller included excavation works. 17 Mr Eddy believed it was necessary to properly secure the site and the earthworks that had previously been carried out were made secure. These additional earthworks to secure the site took place over approximately the next two weeks. 18 Mr Gregory Gerard Joseph ("Mr Joseph") of the council entered the Land on 9 May 2009 at the direction of Mr Fuller. Mr Joseph observed two excavators, one with a rock breaking attachment, a track bulldozer and a heavy roller undertaking earthworks on the Land and being operated by men on the Land. He observed that extensive earthworks had been undertaken including the stripping of grass and topsoil and a tiered excavation on the Land. 19 On 10 May 2007 Mr Fuller entered the Land. He observed three large excavating machines operating on the Land and a large expanse of earthworks being undertaken. He also observed the commencement of construction of a road providing access to Jamberoo Road. None of these works observed by Mr Fuller or Mr Joseph were the subject of any development consent, building approval or construction certificate issued by the council, or any other prescribed authority as at the date the works took place. 20 On 24 May 2007, the council issued a notice of determination for the construction of the Ride by way of approval of stage four of the original DA ("the Development Consent"). 21 The Development Consent included the following conditions:

· Condition 2 under the heading "General": "No development/work is to take place until a Construction Certificate has been issued for the development and the necessary conditions of development consent satisfied to enable release of a Construction Certificate". · Condition 5 under the heading "General": "The development shall not be occupied or used until such time as all conditions of this Development Consent are met or unless other satisfactory arrangements are made with the Principal certifying Authority". · Conditions 3(a)-(d) under the heading "Prior to Commencement of Works": "Under the provisions of the Act, work may not commence on the development until the following is carried out; a Detailed plans and specifications of the building must be endorsed with a Construction Certificate by Council or an Accredited Certifier; and

b You must appoint a Principal Certifying Authority (can be either Council or an Accredited Certifier); and

d You must give at least two (2) days notice to Council of your intention to commence work". · Condition 4 under the heading "Prior to Commencement of Works": "The developer shall obtain a Construction Certificate for any civil engineering works". · Condition 5 under the heading "Prior to Commencement of Works": "A sign must be erected in a prominent position on any site on which building work, subdivision work or demolition work is being carried out: a showing the name, address and telephone number of the Principal Certifying Authority for the work, and showing the name of the principal contractor (if any) for any building work and a telephone number on which that person may be contacted outside working hours, and stating that unauthorised entry to the work site is prohibited". · Condition 2 under the heading "Erosion and Sedimentation Control and Amenity": "The developer shall submit to the Certifying Authority for approval prior to the issue of the Construction Certificate, a detailed soil and water management plan designed in accordance with the requirements of the Department of Natural Resources. All works on the site must be in accordance with the approved soil and water management plan for the full duration of construction works". · Condition 1 under the heading "Inspections": "The building work shall be inspected at critical and other stages as required by the Principal Certifying Authority for the development". · Condition 4 under the heading "Building Construction": "No building work is to commence until details prepared by a practising Structural Engineer have been submitted and accepted by the Principal Certifying Authority for any reinforced concrete slabs, footings or structural steel". · Condition 1 under the heading "Prior to Occupation": "The whole or part of the building must not be occupied unless an Occupation Certificate has been issued in relation to the building or part in accordance with clause 109M of the Environmental Planning and Assessment Act, 1979". 22 On 25 May 2007, Mr Fuller returned to the Land and observed excavation and earth moving works continuing. On 5 June 2007, Mr Eddy, on behalf of Pacific Real Estate, applied for a construction certificate with Accredited Building Certifiers ("ABC") for ride two, the pool, the raft conveyor and the ride start tower. 23 On 16 July 2007, Mr Steve Witheridge ("Mr Witheridge") of ABC spoke to Mr Eddy and told him that work had commenced on the Land prior to the issuing of the construction certificate. 24 On 17 July 2007, Mr Witheridge spoke to Mr Eddy and told him that he would need to apply to council for a building certificate for the reinforced concrete sprayed walls and 24 concrete pad footings for ride one that had been undertaken without a construction certificate. 25 On 18 July 2007, Mr Witheridge entered the Land and observed that earthworks had been carried out on it, that reinforced concrete had been sprayed on walls and that the 24 concrete pad footings for ride one had been built. 26 On that day Mr Fuller met Mr Dax Eddy ("Dax"), the son of Mr Eddy and a manager of the Park, at the council. Dax told Mr Fuller that the concrete footings had been poured on the Land prior to the issue of the construction certificate. Mr Fuller gave Dax a building certificate application form. 27 On 19 July 2007, Mr Witheridge issued construction certificate no 467/07 for the pool, the raft conveyor and the ride start tower and for ride two ("the construction certificate"). 28 On 23 July 2007, the council received the construction certificate from ABC for ride two. No construction certificate was issued for ride one. On 27 July 2007, JBA Urban Planning Consultants, acting on behalf of Pacific Real Estate, applied to the council for a building certificate for ride one. 29 In order to consider the application for a building certificate for ride one Mr Gregory Herbert ("Mr Herbert") from the council entered the Land on 1 August 2007 at the direction of Mr Fuller. He observed that various excavation and construction works had been undertaken on the Land. In particular, he observed the construction of concrete pad footings and retaining walls associated with ride one. 30 Neither the reinforced concrete sprayed walls nor the 24 concrete pad footings for ride one were the subject of any building approval or construction certificate issued by council or any other prescribed authority as at the date the works took place. 31 On 13 August 2007, the council issued a building certificate for the reinforced concrete sprayed walls and the 24 concrete pad footings for ride one. 32 On 11 April 2008, Mr Witheridge returned to the Land. He observed that the works subject of the construction certificate had generally been completed but that there were a few outstanding issues which prevented the issuing of a final occupation certificate. By this stage ride one had largely been completed, the Park was open to the public and the whole of the Ride was not fenced off but was being used by members of the public. 33 An interim occupation certificate was issued by Mr Witheridge on 6 August 2008 for the works the subject of the construction certificate. This did not include works undertaken before the construction certificate was issued. 34 On 21 August 2008 a building certificate application was lodged with the council for the whole of ride one. That certificate was issued by the council on 3 September 2008. 35 The works observed by Mr Joseph on 9 May 2007, Mr Fuller on 10 May and 25 May 2007, Mr Witheridge on 18 July 2007 and 11 April 2008 and Mr Herbert on 1 August 2007 were works for which consent had been sought under the DA. However, the work relating to the concrete sprayed walls and the 24 concrete pad footings was commenced pursuant to the Development Consent but prior to obtaining a construction certificate. 36 Pacific Real Estate agreed that it had allowed the Ride to be occupied and used by the public prior to satisfying all of the conditions of the Development Consent and prior to first making satisfactory arrangements with the principal certifying authority. It also conceded that work was commenced on the Land pursuant to the Development Consent prior to detailed plans and specifications being endorsed by a construction certificate. Further, the council never received a notice of appointment of the principal certifying authority. Nor was council ever notified of Pacific Real Estate's intention to commence work pursuant to the Development Consent prior to the commencement of the works. 37 No sign was erected on the Land in accordance with condition 5 of the Development Consent. Likewise, a detailed soil and water management plan was not submitted to the principal certifying authority in accordance with condition 2 of the Development Consent. Work was commenced on the Land pursuant to the Development Consent at various stages without those stages being inspected by the principal certifying authority and without submitting details prepared by a structural engineer for the reinforced concrete slabs, footings and structural steel. 38 At all times the works were carried out for and on behalf of servants, agents, and/or contractors of the defendant and at the direction of Mr Eddy on behalf of the defendant. Correct Defendant 39 Originally prosecution for the offences the subject matter of the proceedings were commenced against Jamberoo Grass Ski Park Pty Ltd, George Eddy Holdings Pty Ltd and Propix Pty Ltd. These defendants were all incorrectly identified by the prosecutor. 40 Upon becoming aware of the prosecutor's error, Mr Eddy communicated the mistake to the prosecutor and identified the correct corporate defendant. He did so because he was of the view that Pacific Real Estate was responsible for the breaches alleged. He therefore instructed his solicitor to inform the prosecutor that they had the wrong defendants and to identify the correct defendant to the charges. It was as a consequence of these instructions that the current proceedings were instituted against Pacific Real Estate with its consent. Evidence of the Defendant 41 In his affidavit sworn 11 May 2009, Mr Eddy deposed to his frustration with the council at the incorrect advice it acknowledged it had given him in relation to the various development applications that were lodged with it. He also expressed his frustration at the slow progress of the development applications through the council. 42 In relation to the commencement of the work, Mr Eddy fully and frankly admitted to having given instructions for and on behalf of Pacific Real Estate that the site preparation works were to commence on the Ride, and moreover, that these instructions were given prior to development consent having been received. He also admitted that he was aware that development consent was needed before the earthworks could start. 43 In respect of the stop work suggestion made by Mr Fuller on 8 May 2007, Mr Eddy stated that he gave instructions for the work to stop but that because the work that had been carried out included excavation works, it was necessary to secure the site properly which he did. This necessitated carrying out some additional earthworks which took place over two weeks. 44 In relation to the building works the subject of the stage four development, Mr Eddy stated that after the Development Consent was granted he "thought that we could get on with the work". He stated that he was not familiar with the development consent process and he admitted that he did not read the detail of the Consent. Thus he was not aware "of the fact that a Construction Certificate was required prior to the carrying out of the building work". Accordingly, not all of the requirements of the conditions of the Development Consent were complied with either prior to, or as part of, the carrying out of the development. 45 Mr Eddy acknowledged a further error, namely, his assumption that because the Development Consent, the construction certificate and the building certificate had been obtained, all the works could continue. In fact no construction certificate was obtained for the completion of ride one until 3 September 2008. 46 Mr Eddy was forthcoming in expressing his regret on behalf of the company. He stated in his affidavit: 26. For the reasons I have set out above, firstly because of my haste and secondly because of my carelessness I caused the Defendant to break the law. That involved the carrying out of development before development consent had been granted, the carrying out of construction works before a Construction Certificate was issued and the failure to comply with conditions of consent.

27. I sincerely regret both the decisions that I had made and the consequences of my conduct.

28. I can assure the Court that I will not make such decisions again. Further, I am now acutely aware of the need to familiarise myself with the details of any development consent and the necessity to comply strictly with its requirements.

29. I will not consciously breach the planning laws again. Nor will any Company under my direction and control be permitted to do so. 47 Finally, Mr Eddy stated that on 3 December 2008, he instructed his solicitors to inform the prosecutor that Pacific Real Estate would plead guilty to the proposed proceedings and pay all penalties imposed by the Land and Environment Court, including the council's professional costs in relation to the proceedings initially commenced against the incorrectly identified defendants, and the proposed proceedings against the correctly named defendant, Pacific Real Estate. This was provided in the form of an undertaking. As a consequence the council discontinued the proceedings against the incorrectly named defendants. Legislative Framework 48 Section 125(1) of the EPAA states as follows: 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 Director-General, 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. 49 Section 76A(1)(a) of the EPAA states that: 76A Development that needs consent

(1) If an environmental planning instrument provides that specified development may not be carried out except with development consent, a person must not carry the development out on land to which the provision applies unless: (a) such a consent has been obtained and is in force The Prosecutor's Submissions 50 The prosecutor made the following submissions: (a) first, that by way of suggested penalty any fine ought to be at the lower or middle end of the range, that range being $0 to $500,000;

(b) second, that the real vice of the defendant's actions was the undermining of the objects of the EPAA. In this regard the prosecutor relied on the authority of Mosman Municipal Council v Menai Excavations Pty Ltd (2002) 122 LGERA 89 at [35];

(c) third, the prosecutor conceded that no aggravating factors were present;

(d) fourth, that ultimately the Development Consent and the construction and occupation certificates were granted by the council and that no actual environmental damage had been done by the defendant. Rather it was the harm to the integrity of the planning process that was at issue;

(e) fifth, the work carried out in contravention by the defendant was extensive and significant;

(f) sixth, the state of mind of the defendant, as demonstrated by the conversation between Mr Eddy and Mr Fuller on 8 May 2007, was that Mr Eddy had knowledge of his obligations and that by giving instructions to the company to proceed with the construction works absent Development Consent, the breach was intentional;

(g) seventh, that the works were carried out by the defendant for commercial reasons, namely, to get the Ride ready for the immediate tourist season;

(h) eighth, that Mr Eddy's frustration with the council did not excuse his behaviour; and (i) ninth, because additional works were carried out after a warning was given by the council, the council's actions could not be a mitigating factor. 51 However, the prosecutor noted that the defendant had accepted responsibility through Mr Eddy for its actions and for having breached the law and that it had pleaded guilty at the earliest opportunity. Furthermore, the defendant had cooperated fully with the council, and its willingness to pay the costs of the current proceedings and those commenced against the wrongly identified defendants was a significant factor by way of mitigation in the defendant's favour. The Defendant's Submissions 52 The defendant, through Mr Eddy, characterised its actions as having "jumped the gun". 53 The defendant agreed with the prosecutor that the real vice in the defendant's actions was not the consequences of having been involved in construction without the necessary approvals, rather the vice was not having obtained the required approvals thereby undermining public participation in the process and the integrity of the planning laws. 54 Mr Eddy noted that in relation to the development application process both parties were at fault for erroneous conduct. Mr Eddy submitted that Pacific Real Estate received incorrect advice from its advisors and then from the council resulting in Pacific Real Estate having to recommence the development application process thereby causing delay. 55 Mr Eddy admitted that the contraventions had occurred for a financial imperative, but stated that there were other factors to consider in mitigation. First, there were unsuccessful attempts to speak to the council in order to clarify the situation. Second, Mr Eddy noted that at no time did he disobey a council stop work order or directive because none was given. Rather, any stop work was volunteered by the defendant. In any event all site preparation did halt with the exception of the securing of the earthworks which necessitated some additional construction having to be carried out. Third, the defendant noted that ultimately the building certificates and construction certificates were granted by the council regularising the unlawful works. Fourth, in relation to the works carried out without a construction certificate having been issued, Mr Eddy noted that this had occurred because he had assumed that the building certificate was enough. Thus Mr Eddy did not act deliberately in carrying out the work. Fifth, the defendant submitted that the construction certificate was issued for ride two but that technical breaches took place. 56 With respect to the objective harm caused by the commission of the offences, the defendant characterised the unlawful behaviour as "simple" but not trivial breaches of the law. The defendant, however, acknowledged that the breaches were serious. Nevertheless, the defendant submitted that the contraventions were at the low end of the scale because no environmental harm had resulted and because all of the unauthorised works were subsequently approved by the council. 57 By way of mitigation, the defendant submitted that it had cooperated with the prosecutor, had entered an early guilty plea and that it, through its director, Mr Eddy, had expressed remorse and regret. The defendant also submitted that this was a near perfect example of cooperation with the prosecuting authorities, which included not taking any advantage from the fact that the council initially incorrectly named the defendant. Moreover, given its agreement to pay the costs of the proceedings, the defendant submitted that a significant discount ought to be given to it in recognition of its conduct. 58 In relation to specific deterrence, the defendant submitted that given it was highly unlikely to re-offend and that it had operated the theme park since 1978 without fault, there was no requirement for any specific deterrence. 59 The defendant submitted that the prosecutions involved a single course of conduct resulting in two breaches of the law and that it would not be appropriate for the Court to embark on how much of a penalty should be imposed for each breach. 60 Finally, the defendant submitted that in all the circumstances, payment of the prosecutor's costs alone would be appropriate by way of penalty. In the alternative, the defendant submitted that any penalty imposed ought to be at the very lower end of the range. Purpose of Sentencing 61 Section 3A of the Crimes (Sentencing Procedure) Act 1999 ("CSPA") provides that the purposes of imposing a sentence on an offender include: 3A Purposes of sentencing The purposes for which a court may impose a sentence on an offender are as follows: (a) to ensure that the offender is adequately punished for the offence, (b) to prevent crime by deterring the offender and other persons from committing similar offences, (c) to protect the community from the offender, (d) to promote the rehabilitation of the offender, (e) to make the offender accountable for his or her actions, (f) to denounce the conduct of the offender, (g) to recognise the harm done to the victim of the crime and the community. 62 The sentence of the Court is a public denunciation of the conduct of the offender. It must ensure that the offender is held accountable for his or her actions and is adequately punished. 63 The sentence must also deter the offender from committing a similar offence in the future (Director-General of the Department of Environment and Climate Change v Rae [2009] NSWLEC 137 at [8]). Moreover, the sentence of the Court needs to operate as a "powerful factor" in preventing the commission of similar offences by persons who may be tempted to do so (Rae at [9]). 64 In Pittwater Council v Scahill (2009) 165 LGERA 289 (at [46]) Preston CJ described the purpose of sentencing pursuant to s 3A of the CSPA, in the context of an offence involving the failure to obtain the necessary regulatory approval for the development work undertaken, as follows: [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]; Byers 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]. Approach to Sentencing 65 It is a basic principle of sentencing law that the sentence imposed by the Court for an offence must both reflect and be proportionate to the objective circumstances of the offence and the personal or subjective circumstances of the defendant (Veen v The Queen (1979) 143 CLR 458 at 490 and Veen v The Queen (No 2) (1988) 164 CLR 465 at 472). Objective Gravity of the Offence 66 The primary factor to consider in determining sentence is the objective gravity or seriousness of the offence. It fixes both the upper and lower limits of proportionate punishment. It fixes the upper limit insofar as the sentence must not exceed that which can be justified as appropriate or proportionate to the gravity of the crime considered in light of its objective circumstances (Veen v The Queen (No 2) at 472, 485-486, 490-491 and 496; Hoare v The Queen (1989) 167 CLR 348 at 354). It fixes the lower limit because allowance for the subjective factors of the case ought not produce a sentence which fails to reflect the objective gravity or seriousness of the offence (R v Dodd (1991) 57 A Crim R 349 at 354; R v Nichols (1991) 57 A Crim R 391 at 395; Garrett v Freeman (No 5) (2009) 164 LGERA 287 at [51] and Scahill at [50]). 67 In determining the objective gravity or seriousness of the offences, the circumstances of the offences to which the Court may have regard include (see Bentley v BGP Properties Pty Ltd (2006) 145 LGERA 234 at [163] and Gittany Constructions Pty Ltd v Sutherland Shire Council (2006) 145 LGERA 189 at [110], both cited in Hawkesbury City Council v Johnson; Hawkesbury City Council v Johnson Property Group Pty Limited (No 2) [2009] NSWLEC 6 at [36]-[38]): (a) the maximum penalty for the offence;

(b) the objective harmfulness of the defendant's actions;

(c) the defendant's state of mind in committing the offence;

(d) the defendant's reasons for committing the offence;

(e) the foreseeability of risk of harm to the environment;

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

(g) the defendant's control over the causes of harm to the environment. 68 Section 21A of the CSPA further identifies matters which the Court must take into account when sentencing, including those in aggravation (s 21A(2)) and those in mitigation (s 21A(3)). The Maximum Penalty 69 The maximum statutory penalty is of considerable significance in determining the objective gravity of the offence. In Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 at 698 it was stated that "the maximum penalty available for an offence reflects the "public expression" by parliament of the seriousness of the offence". 70 In Markarian v The Queen (2005) 228 CLR 357 at [31], the High Court unequivocally referred to the need to have regard to the maximum penalty as a legislative yardstick to enable comparison between the worst possible case and that currently before the court. 71 At the time the offences were committed, the maximum penalty for each offence was $1.1 million (s 126 of the EPAA). This demonstrates the seriousness with which these offences are viewed (Scahill at [52]). Against this it must be recognised that there is a broad spectrum of matters which can give rise to an offence under s 125 of the EPAA. The commission of these offences is, in my view, at the less serious end of that spectrum (Council of the Municipality of Kiama v Furlong [2009] NSWLEC 139 at [24] citing Willoughby City Council v P and V Masonary Pty Limited [2003] NSWLEC 312). Nature of the Offences Having Regard to the Objects of the Legislation 72 In determining the objective seriousness of the offence, the Court may take into account the objects of the legislation which have been breached (Bentley at [168]-[172]). 73 The prosecutor submitted that one of the objects of the EPAA is to encourage the promotion and coordination of the orderly and economic use and development of the land. These offences, involving the carrying out of development without the requisite regulatory approvals, undermined this object. I agree with this submission. Harm to the Environment 74 I also agree that no harm was caused by the commission of the two offences. The development was ultimately constructed properly with all of the regulatory approvals and requirements having been obtained. 75 However, harm did occur to the regulatory system insofar as the defendant's actions had a tendency to erode the planning controls imposed by the legislation. The extensive scope and nature of the construction work undertaken by the defendant exacerbates this erosion and increases the objective gravity of the offence. The Defendant's State of Mind 76 An offence against s 125 of the EPAA for carrying out development without consent and of failing to comply with the conditions of development consent is an offence of strict liability (Power v Penthill House Pty Ltd (1993) 80 LGERA 247 at [253]) and therefore mens rea is not an element of the offence (Scahill at [69]). 77 But there is an onus on those who carry out development, including preparatory construction work, to ensure that all necessary consents and approvals have been obtained. Merely because the council's processes were flawed or, in the defendant's opinion, overly tardy, is not a circumstance that can operate to exculpate it. 78 Nevertheless the state of mind of an offender at the time of the offence is relevant insofar as it can have the effect of increasing or decreasing the seriousness of the crime. Thus a strict liability offence that is committed intentionally or recklessly is objectively more serious than one which is committed unintentionally (Scahill at [69]). 79 I accept that not all of the particulars of the two charges were committed intentionally by the defendant to the extent that Mr Eddy was not aware that a construction certificate was required or erroneously believed that one had been obtained. 80 However, as the conversation between Mr Eddy and Mr Fuller on 8 May 2007 plainly demonstrates and as Mr Eddy has admitted, he "was aware that development consent was needed before the earthworks could start" but he nevertheless issued instructions for the development to commence. In doing so, the defendant's actions can only be characterised as intentional thereby increasing the objective gravity of the offences insofar as this aspect of the defendant's conduct is concerned. The Defendant's Reasons for Committing the Offence 81 In Scahill Preston CJ stated that (at [80]-[81]): [80] The criminality involved in the commission of an offence is to be measured not only by the seriousness of what actually occurred, but also by reference to the reasons of its occurrence: Axer Pty Ltd v Environmental Protection Authority (1993) 113 LGERA 357 at 366; Bentley v BGP Properties Pty Ltd at [237]; Gittany Constructions Pty Ltd v Sutherland Shire Council at [140] and Garrett v Williams (2006) 160 LGERA 115 at [120].

[81] The carrying out of the offence to make a profit, or to save incurring an expense, or to avoid the cost of obtaining and implementing a statutory permission such as a development consent or environment protection licence increases the seriousness of the crime. Offenders should not profit from crime: Garrett v Williams at [121] and cases therein stated. 82 It was not a matter of controversy that a reason for the commission of the offences was commercial motivation. The Ride had been ordered from Canada and it was to be installed and operational before the tourist season commenced. 83 In this respect, the defendant's reason for committing the offences aggravates their objective seriousness. Practical Measures and the Defendant's Control over the Activities 84 It was conceded by the defendant that at all times the defendant, through Mr Eddy, had control over the work carried out on the site that gave rise to the offences and thus could have taken practical measures to avoid their commission. These measures were simply that defendant should have refrained from commencing any building works until the appropriate consents and certificates had been obtained by it. Conclusion on Objective Circumstances 85 Having regard to the fact that the conduct giving rise to the commission of the offences was in part motivated for reasons of financial expediency and was in part deliberate, but did not result in any environmental harm, I consider the offences to be of moderate objective gravity. 86 In reaching this conclusion I take comfort from the observations of McClellan J in Bankstown City Council v Taouk Constructions Pty Ltd [2004] NSWLEC 402 (at [18]-[21]): [18] I am satisfied that the offence should be considered to be serious. There are, of necessity, under the structure of the planning law provided by Parliament, steps which must be taken before work can lawfully be carried out on any land. Those steps will, by their nature, sometimes involve the preparation of complex documentation and consideration by a Council and other relevant authorities of whether or not approval should be granted.

[19] Inevitably, the process of consideration of an application will take some time. That time, although efforts will be made by relevant authorities to minimise it, will nevertheless very often bring a financial disadvantage to the applicant for consent. Such delays must be accepted by anyone who seeks to develop in New South Wales.

[20] It is a very serious matter particularly when an experienced developer decides, for its own financial gain, to proceed to construct part or all of a development knowing that consent is required and also knowing that that consent has not been obtained. If many people were to take that course, the system of development control which has existed in this State now for more than fifty years would be seriously undermined to the disadvantage of the whole community.

[21] Those who engage in development as their profession and for financial gain must, above all, be those members of the community who obey the law. Subjective Circumstances of Pacific Real Estate 87 A proportionate sentence requires the Court to take into account any personal or mitigating factors present (Gittany at [144] and the authorities cited thereat). 88 The evidence discloses mitigating factors that the Court must take into account in determining the appropriate penalty (s 21A(3) of the CSPA). 89 The subjective circumstances of the defendant to be considered include: (a) any prior criminal record;

(d) any cooperation with regulatory authorities; and

(e) the financial means of the defendant. No Prior Convictions 90 In Veen v R (No 2) the High Court stated (at 477): The antecedent criminal history is relevant, however, to show whether the instant offence is an uncharacteristic aberration or whether the offender has manifested in his commission of the instant offence a continuing attitude of disobedience of the law. In the latter case, retribution, deterrence and protection of society may all indicate that a more severe penalty is warranted. 91 The defendant does not have any prior convictions for any environmental or other offences (see s 21A(3)(e) of the CSPA and Gittany at [146]). Good Character 92 I accept that the defendant is, but for the commission of these offences, of prior good character (see s 21A(3)(f) of the CSPA). Early Plea of Guilty 93 I also accept that the defendant pleaded guilty to the offences at the first available opportunity and accordingly is entitled to the full 25% discount for its early plea of guilty (see ss 21A(3)(k) and 22 of the CSPA and see Rae at [58]-[64] and the authorities cited at [61]). Contrition and Remorse and Likelihood of Reoffending 94 The defendant has, through its corporate director, Mr Eddy, expressed contrition and distress for the commission of the offences (s 21A(3)(i) of the CSPA). I have no hesitation in finding that the defendant has genuinely indicated its corporate contrition (Environment Protection Authority v Waste Recycling and Processing Corp (2006) 148 LGERA 299 at [214]). 95 This factor also makes it less likely that the defendant will re-offend in the future (s 21A(3)(g) of the CSPA). Cooperation with the Regulatory Authority 96 In addition to the displays of contrition referred to above, the evidence also demonstrates that at all times the defendant fully cooperated and assisted the prosecutor in its investigation and prosecution of the offences (ss 21A(3)(m) and 23(1) of the CSPA). This cooperation commenced early and culminated with the filing in Court of a comprehensive agreed statement of facts (see generally Waste Recycling at [216]-[223]). In my view, the defendant acted impeccably in this regard. Payment of the Prosecutor's Costs 97 The defendant has agreed to pay the costs of the prosecution fixed in the sum of $46,000. The payment of these not insignificant costs is an aspect of its punishment (Environment Protection Authority v Barnes [2006] NSWCCA 246 at [78]) and a substantial factor in mitigation. Capacity to Pay Fines 98 There is no suggestion that the defendant will not have the capacity to pay any fine imposed on it by way of penalty (see s 6 of the Fines Act 1996). Conclusion as to Subjective Circumstances 99 The subjective circumstances of Pacific Real Estate mitigate considerably the sentence to be imposed. Deterrence 100 In Gittany, the Court stated the following applicable principles in relation to deterrence as a component of an appropriate penalty for an environment and planning offence (at [188]-[190] and [192]): [188] In fixing the appropriate punishment for the offences, the Court needs to consider the purposes of sentences relevant to the offences in this case.

[189] There is a need to ensure that the appellant is made accountable for its actions and is adequately punished for the offences it has committed. This requires the Court to ensure that the punishment for each offence adequately reflects the objective seriousness of the offences, whilst also taking account of the subjective circumstances of the appellant.

[190] There is a need to deter specifically the appellant from repeating the conduct that resulted in the commission of the offences, when the appellant carries out development in the future. The appellant needs to be told, by the Court's sentence, that breaches of the EPA Act, including by failing to carry out development consent, will be visited with significant financial consequences.

[192] To achieve general deterrence, courts need to impose a penalty that not only acts as a warning to others but also makes it worthwhile that the cost of taking precautions to avoid committing the offence (such as by obtaining and complying with development consents be undertaken): Axer Pty Ltd v Environment Protection Authority at 359-360; Bentley v BGP Properties Pty Ltd at [139]-[141], [148]-[157]. 101 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. 102 A person will not be deterred from committing environmental offences by the imposition of nominal fines (Bentley at [140]). Equally, the sentence imposed by the Court must show the denunciation of the crime committed and take into account the moral outrage of the community (Bentley at [143]). The community is entitled to expect that the Court will exercise its discretion to impose penalties commensurate with the community's views. 103 In the circumstances of the present case, the need to specifically deter the defendant from repeating the conduct that resulted in the commission of the offences in the future is, on the evidence outlined above, limited but it is not, contrary to the submission of the defendant, non-existent. The intentional nature of the defendant's conduct in commencing construction absent development consent, driven as it was in part by financial gain, favours the need for, albeit minimal, specific deterrence. 104 There is, moreover, a need to ensure general deterrence in relation to other developers who may be tempted to commence construction works without having obtained all of the necessary approvals. As was stated by Preston CJ in Scahill (at [44]-[45] and [47]): [44] Most importantly, the sentence of the Court needs to operate as a powerful factor in preventing the commission of similar crimes by persons who might be tempted to do so by the prospect that, if they are caught, only light punishment will be imposed: R v Rushby [1977] 1 NSWLR 594 at 597. This is particularly so in the context of unlawful development, having regard to the policy considerations articulated in a number of cases including Mosman Municipal Council v Menai Excavations Pty Ltd (2002) 122 LGERA 89 at [32]-[35]; Sutherland Shire Council v Turner [2004] NSWLEC 774 at [24]; and Carlino v Leichhardt Municipal Council (2005) 144 LGERA 235 at [32]-[34].

[45] For environmental offences, the purpose of sentencing of general deterrence is of central importance. Many of the cases in which courts have so stated are set out in the judgment in Cameron v Eurobodalla Shire Council (2006) 146 LGERA 349 at [59], [71]-[80] and Gittany Constructions Pty Ltd v Sutherland Shire Council (2006) 145 LGERA 189 at [103]-[106]. 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; (2009) 165 LGERA 289 at 299 Bentley v BGP Properties Pty Ltd (2006) 145 LGERA 234 at [139]-[142], [150], [151] and Eurobodalla Shire Council v Wheelhouse [2006] NSWLEC 98 at [17].

[47] The sentencing purpose of general deterrence is particularly relevant where the offender is in a business or industry that undertakes development or action that is regulated by the system of planning and development control. Persons and corporations engaged in demolition, excavation, and building and development work need to be warned by the sentence imposed by courts in cases involving unlawful demolition, excavation, and building and development work that all necessary consents must be obtained and complied with: Mosman Municipal Council v Menai Excavations Pty Ltd at [31], [32], [35]; Sutherland Shire Council v Nustas [2004] NSWLEC 608 at [18]; Byron Shire Council v Fletcher at [62]; Kari & Ghossayn Pty Ltd v Sutherland Shire Council (2006) 150 LGERA 231 at 68. 105 Thus in Mosman Municipal Council v Menai Excavations Lloyd J (at [35]) stated: The system of planning control would become somewhat ineffective if persons were to carry out development…without ensuring that necessary development consent has been obtained. Whilst I accept the defendant's submission that it is unlikely to re-offend, there is in my opinion a need to impose a penalty which reflects a general deterrence and to reinforce this obligation on the defendant. 106 His Honour's words resonate loudly on the facts of the present case (see also Furlong at [25] where a similar sentiment was expressed by Pain J). Consistency in Sentencing 107 A relevant consideration in sentencing is the ascertainment of the existence of a general pattern of sentencing by the courts for offences such as the offence in question (Gittany at [179]-[183]). 108 The proper approach is for a court to look at (Gittany at [182]): [182] … "whether the sentence is within the range appropriate to the gravity of the particular offence and to the subjective circumstances of the particular offender, and not whether it is more severe or more lenient than some other sentence (other than that of a co-offender) which merely forms part of that range": R v Morgan (1993) 70 A Crim R 368 at 371 and Capral Aluminium Ltd v Workcover Authority of NSW (2000) 49 NSWLR 610 at 641. 109 Of course care must be taken because each case is different and a sentence in one case does not demonstrate the limits of a sentencing judge's discretion (Axer Pty Ltd v Environment Protection Authority (1993) 113 LGERA 357 at 365, Cabonne Shire Council v Environment Protection Authority (2001) 115 LGERA 304 at 312 and R v Mungomery (2004) 151 A Crim R 376 at [5] per Spigelman CJ). 110 The defendant relied on statistical information from the Judicial Information Research System to reinforce its submission that payment of the prosecutor's costs alone would be an appropriate penalty in all the circumstances. 111 However, the statistics proffered by the defendant were, in my view, of limited utility given their small sample (Dodds v R [2009] NSWCCA 191 at [4]). Moreover, I accept the submissions of the prosecutor that more than the mere payment of costs is warranted given the extensive scope of the unlawful construction engaged in by the defendant. 112 Neither party was able to assist the Court with directly comparable cases. However, several cases involving the commencement of construction absent having obtained all necessary regulatory approvals were conveniently summarised in the judgment of Pain J in Council of the Municipality of Kiama v Furlong [2009] NSWLEC 139 (at [35]-[40]): [35] …The Council submitted that relevant cases for the purpose of considering an appropriate penalty were set out in The Council of the City of Ryde v Felici [2009] NSWLEC 27. In that case the defendant, a builder, completed an owner's consent form relating to a DA for extensions to his residential property. Before the DA was lodged the defendant commenced the works, being the extension of an existing bedroom and the addition of a new garage. The works were in accordance with the plans lodged with council as part of the DA. The defendant was aware that the DA required determination before works could be lawfully commenced. At the time of the sentence hearing a building certificate had been applied for but not yet determined by the Council. The works were not extensive and the offence was described as being at the lower end of seriousness although not trivial. A penalty of $16,000 was imposed after taking into account mitigating factors.

[36] In Woollahra Municipal Council v Byrnes and Consolidated Byrnes Holdings Pty Ltd [2002] NSWLEC 125 a swimming pool was constructed without development consent. Consent had been sought after construction began but was refused. It was found that the defendants deliberately broke the law for their convenience. The individual defendant had a prior conviction. A plea of guilty was entered on the day of the hearing and the defendant expressed contrition and remorse. A penalty of $10,000 was imposed for the individual and $2,000 for the company.

[37] Byres v Leichhardt Municipal Council [2006] NSWLEC 82 was an appeal to the Court against a penalty of $12,000 imposed by a local court for carrying out excavation and alteration of a subfloor area without development consent. The maximum penalty a local court can impose is $110,000. The development was extensive and may have compromised the integrity and stability of the house and its foundations. The work was undertaken negligently as it was carried out without regard to the health and safety of entrants to the house by someone with no building or engineering expertise. The council issued a stop work order. The appellant pleaded not guilty until three days before the local court hearing, there was little evidence of contrition and remorse and the appellant's cooperation was described as patchy. The appeal was dismissed and the penalty of $12,000 confirmed.

[38] In The Council of the Municipality of Kiama v Gerringong Developments Pty Limited [2007] NSWLEC 257 alteration of a motel and restaurant was carried out without the necessary development consent. The changes included an increase in the number of units, three new terraces, ten new courtyards and construction of a new lap pool. A development application for the work had been lodged but not determined at the offence date. A stop work order was issued but not complied with. The defendant was aware the works were unauthorised. It was an aggravating circumstance that work continued after the stop work order. The company's director expressed contrition and remorse. Other mitigating factors included the early guilty plea, the defendant's good character and the cooperation with the prosecutor. A penalty of $20,000 was imposed.

[39] In Maitland City Council v Link Building Services Pty Limited [2008] NSWLEC 71 45 items of building work on a hotel were carried out in a way inconsistent with a consent granted by the council. The sole director of the defendant stated he had no concern about non-compliance and it was held that the action was a deliberate and wilful contravention of the EP&A Act for commercial gain. Lloyd J described the breach as serious. No contrition or remorse was expressed. A penalty of $17,500 was imposed taking into account the very large amount of prosecutor's costs the defendant agreed to pay (approximately $80,000).

[40] In Hunter's Hill Council v Touma [2008] NSWLEC 227 the defendant carried out development including the construction of office space, a kitchen and a bathroom prior to obtaining consent for the work. A development application had been lodged during the carrying out of the building work. The defendant expressed regret in not complying with the law but believed at the time consent would be forthcoming. The defendant had no previous convictions, had pleaded guilty at the earliest opportunity and had cooperated with authorities. A penalty of $15,000 was imposed. 113 In Furlong itself, the defendant was fined $11,000 for unauthorised building works in conjunction with approved renovations to an existing dwelling house in Gerringong. The renovations were subsequently regularised. No actual harm to the environment occurred and there were a number of mitigating factors. 114 In Bankstown City Council v Taouk Constructions Pty Ltd [2004] NSWLEC 402 a penalty of $30,000 was imposed in circumstances where the unapproved work continued for approximately three months and were deliberately carried out. 115 Finally, in Minister for Planning v Fancott Pty Ltd [2009] NSWLEC 170, the Court imposed a penalty of $24,500 (after discounting for an early guilty plea, no prior convictions, cooperation with the prosecuting authority and a genuine expression of contrition) where the defendant constructed a tourist accommodation lodge at Thredbo without having obtained the necessary development consent and in the absence of having obtained a construction certificate. 116 The prosecutor submitted that a penalty of $50,000 to $60,000 after any discount would be appropriate in the present case in light of the significant extent of the works unlawfully undertaken by the defendant. However, in light of the authorities surveyed above this range is, in my opinion, too high. Totality Principle 117 Both parties agreed, as do I, that in determining sentence the totality principle applies to the two offences, the commission of which took place during a single course of conduct by the defendant, albeit over approximately four months. 118 In Gittany the Court described this principle and its application as (at [196] and [200]): [196] The totality principle is a principle of sentencing which must be applied when sentencing an offender who has committed more than one offence. The court should consider questions of cumulation or concurrence as well as questions of totality. When reviewing the aggregate sentence, the Court must consider whether it is "just and appropriate" and reflects the total criminality before the court: see Mill v Queen (1988) 166 CLR 59 at 62-63; Pearce v The Queen (1988) 194 CLR 610 at [49]; R v Kalache (2000) 11 A Crim R 152 at [110], [180]; R v AEM [2002] NSWCCA 58 at [70]; and R v Bahsa (2003) 138 A Crim R 245 at [62], [63].

[200] In applying the totality principle, the Court must avoid determining a sentence that is disproportionate to the seriousness of the offence: R v A at [32]. The Court must first fix an appropriate sentence for each offence and then consider questions of cumulation or concurrence as well as questions of totality: Pearce v The Queen at [45]; R v Wheeler at [31], [32] and R v AEM at [64], [67]. 119 However, the Chief Judge went on to state that (at [199]): [199] In determining an appropriate aggregate sentence, the Court must consider the need to uphold public confidence in the administration of justice. If sentences are reduced substantially, offenders may view that they can escape punishment for successive deliberate discrete offences: R v Wheeler [2000] NSWCCA 34 at [36]-[37]. Penalty to be Imposed 120 Taking into account all of the circumstances identified above and the penalties imposed in the authorities that I have surveyed, I am of the view that a penalty of $50,000 discounted by a total of 35% (including allowance for the application of the totality principle) is appropriate by way of total penalty for both offences (R v Sukkar (2006) 172 A Crim R 151 at [53]-[56], Environment Protection Authority v Boral Australian Gypsum Limited [2009] NSWLEC 26 at [53] and Environment Protection Authority v Cut and Fill Pty Limited [2005] NSWLEC 401 at [37]). This results in a total fine of $32,500. Orders 121 The orders of the Court are: (1) The defendant is convicted of the offences as charged.

(3) The defendant must pay the prosecutor's costs of $46,000.

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