Tweed Shire Council v Coakers Building Service Pty Ltd

Catchwords: SENTENCING — Plea of guilty to breach of s 4.2(1) of the Environmental Planning and Assessment Act 1979 (NSW) — Carrying out of development works without development consent — Mitigating factors — Objective seriousness of offence — Foreseeability of risk of harm — Remorse — Publication order

Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A, 22
Criminal Procedure Act 1986 (NSW), s 257B
Environmental Planning and Assessment Act 1979 (NSW), ss 1.3, 4.2, 9.52, 9.53, 9.56, 9.57
Fines Act 1996 (NSW), s 6
Local Government Act 1993 (NSW), s 694
Protection of the Environment Operations Act 1997 (NSW), ss 248, 250
Tweed Local Environmental Plan 2014

Cases Cited: Bentley v BGP Properties Pty Ltd [2006] NSWLEC 34; (2006) 145 LGERA 234
Burwood Council v Alam [2025] NSWLEC 2
Burwood Council v Portleigh Pty Ltd [2023] NSWLEC 103
Cabonne Shire Council v Environment Protection Authority [2001] NSWCCA 280; (2001) 115 LGERA 304
Cameron v Eurobodalla Shire Council [2006] NSWLEC 47; (2006) 146 LGERA 349
Chief Executive of the Office of Environment and Heritage v Bombala Investments Pty Ltd [2013] NSWLEC 185; (2013) 199 LGERA 236
Director-General of the Department of Environment and Climate Change v Rae [2009] NSWLEC 137; (2009) 168 LGERA 121
Environment Protection Authority v Ballina Shire Council [2006] NSWLEC 289; (2006) 148 LGERA 278
Fairfield City Council v Oztech Developments Pty Ltd [2021] NSWLEC 81
Georges River Council v RNA Building Solutions Pty Ltd; Georges River Council v El Saadi [2024] NSWLEC 139
Harris v Harrison (2014) 86 NSWLR 422; [2014] NSWCCA 84
Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45
Lane Cove Council v Wu [2011] NSWLEC 43
Plath v Rawson [2009] NSWLEC 178; (2009) 170 LGERA 253
R v Morabito (1992) 62 A Crim R 82
R v Oliver (1980) 7 A Crim R 174
R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309
Secretary, Department of Planning and Environment v Boggabri Coal Pty Ltd [2014] NSWLEC 154

Category: Sentence

Parties: Tweed Shire Council (Prosecutor)
Coakers Building Service Pty Ltd (Defendant)

Representation: Counsel:
T Howard SC (Prosecutor)
R Coffey (Defendant)
Solicitors:
Shaw Reynolds Lawyers (Prosecutor)
Storey & Gough Lawyers (Defendant)

File Number(s): 2024/00389692

Publication restriction: Nil

JUDGMENT

1. By a Summons filed on 18 October 2024, Tweed Shire Council (Council) commenced a prosecution of Coakers Building Service Pty Ltd (Defendant) in relation to unlawful development carried out between 5 August 2021 and 6 December 2022 on land comprising Lot 2 in DP 567249 and known as 842 Terranora Road, Bungalora (the Property).

2. The prosecution first came before the Court on 13 December 2024, on which date the Defendant pleaded guilty to an offence against s 4.2(1) of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act)**, in that it carried out development on land when a development consent under the EPA Act had not been obtained, being development which the Tweed Local Environmental Plan 2014 (TLEP 2014) provided may not be carried out except with development consent.

3. The sentencing hearing for the offence proceeded before me on 19 August 2025. Mr T Howard SC appeared as Prosecutor for the Council, and Mr R Coffey of Counsel appeared for the Defendant. Written submissions and a Statement of Agreed Facts were provided to assist me with my determination of an appropriate sentence which, for the reasons outlined in this judgment, is a fine of $50,000, which is reduced to $37,500 after the application of a discount for the Defendant’s early guilty plea.

A. Evidence

4. The following evidence was adduced at the hearing:

By the Council:

(a) Statement of Agreed Facts and Annexures filed 27 March 2025 (Exhibit A); (b) development application dated 21 October 2020 and sundry other documents and emails (Exhibit B); and (c) development consent for ongoing use issued by the Council on 16 June 2025 (Exhibit C).

By the Defendant:

(a) Affidavit of Matthew Coaker dated 2 June 2025 (First Coaker Affidavit); (b) Affidavit of Matthew Coaker dated 14 August 2025 (Second Coaker Affidavit); (c) copy of bundle of SMS messages labelled “Addendum Note 30th July 2025”, including 12 pages of text messages and a Coastline invoice (Exhibit 1); (d) further bundle of NSW Planning Portal activity logs (Exhibit 2); and (e) six character references from various persons (referred to below) concerning Matthew Coaker (Exhibit 3).

B. Agreed facts

5. The following is a summary of the most relevant findings of fact taken from the Statement of Agreed Facts dated 27 March 2025, and from the other evidence in relation to which there was no controversy:

(a) Matthew Anthony Coaker (Mr Coaker) is the sole director, secretary, and shareholder of the Defendant building company. (b) Mr Coaker is 42 years of age. He commenced a carpentry apprenticeship in 2001, and completed it in 2004. He obtained a builder’s licence in 2013, and incorporated the Defendant company on 1 July 2016. (c) The property is owned by Mr Rhien Garbett. Mr Coaker has known him for many years and is a friend of his. (d) Mr Garbett first contacted Mr Coaker about the development work for the Property in October 2020, but a building contract was not executed until 2 July 2021. (e) On and from 5 August 2021 and continuing to 6 December 2022, the Defendant carried out development for the purposes of a dwelling house on the Property, comprising:

(i) the demolition of the then-existing dwelling; (ii) the construction of a new dwelling house, carport, and garage; and (iii) landscaping and construction of hardstand areas associated with the erection of the new dwelling, including a new driveway.

(f) The original dwelling on the Property, before its demolition, was a single-storey timber residence consisting of a living room, kitchen, dining area, two bedrooms, two bathrooms, sunroom, sewing room, screened enclosure, laundry, attached garage, and an attached boat shed. The building footprint of the original development was approximately 400m². (g) The new dwelling is a single-storey residence featuring a living room, kitchen, dining area, media room, study, four bedrooms, two bathrooms, a powder room, laundry, outdoor entertaining area, carport, and a detached garage. The dwelling has a building footprint of approximately 553m², while the detached garage covers an additional footprint of approximately 148.53m². (h) The development is “specified development” within the meaning of s 4.2(1) of the EPA Act, being development for the purposes of a dwelling house, including demolition, which the TLEP 2014 provided may not be carried out on the Property except with development consent. (i) Development consent authorising the development had not been obtained and was not in force when the development was carried out. (j) No application was made for development consent for the carrying out of the development, or for the carrying out of any part of the development, at any time up to about 7 August 2022. (k) On 14 February 2024, the following applications were submitted to the NSW Planning Portal by a firm called “Parameter Designs”:

(i) a development application (PAN-411766) for the use of the unlawfully erected new dwelling on the Property; and (ii) an application for a Building Information Certificate (BIC-26540) with respect to the new dwelling on the property.

(l) On 11 March 2024, the development application (PAN-411766) was rejected from the NSW Planning Portal by Council. (m) A further development application (PAN-442520) was submitted via the NSW Planning Portal on 7 June 2024. Due to non-payment of fees this application was returned. (n) On 12 September 2024 a development application for the use of the development was accepted by Council (PAN-465212). A development consent for ongoing use was granted by the Council on 16 June 2025. (o) On 18 September 2024, the returned Building Information Certificate (BIC) was accepted by Council under BIC-33725. That BIC is still under consideration by the Council.

C. Additional findings of fact

6. At what he describes as a “prima facie level”, Mr Howard SC made these submissions concerning the Defendant’s state of mind (through its controlling mind and sole director, Mr Coaker):

“a. the defendant must have known that development was not in the nature of alterations and additions to the existing dwelling house, but involved the demolition of the existing dwelling and the erection of a new dwelling (plus the associated works); and

b. the defendant must have known that development consent from the Council was required for the carrying out of the Development; and

c. the defendant must have known that, throughout the charge period, no development consent had been obtained or was in force for the carrying out of the Development; and

d. knowing these things, the defendant nevertheless carried out the Development in its professional capacity as a building contractor for reasons of commercial expediency”: Prosecutor’s Written Submissions (PWS) at [47].

7. There can be no question that a builder such as Mr Coaker would have been aware that a development consent was required to carry out the works that the Defendant did. His affidavit evidence however can be summarised this way:

(a) The owner of the Property had told him that he had engaged the certifier Mr O’Connell “to coordinate all approvals that were required” as well as to act as the certifier: First Coaker Affidavit at [13]. (b) Sometime in late 2020 he was told that Mr O’Connell had prepared a development application for the development that either had been or was about to be lodged: First Coaker Affidavit at [15]. (c) A short time after this, Mr Coaker said that Mr O’Connell told him that “he could approve the demolition works and also suggested that if it was really necessary… he could give an approval for the renovation works”: First Coaker Affidavit at [20]. During cross-examination by Mr Howard SC, Mr Coaker stated that Mr O’Connell had only told him he could approve the demolition, not that he could approve other development works such as construction of the new dwelling house. Although his affidavit then was not entirely accurate, Mr Coaker readily made the correction to it when asked. I consider that the part of his first affidavit that he resiled from contained an innocent rather than deliberate error, and I will treat it that way. (d) In September 2021, during a phone conversation with Mr O’Connell, Mr Coaker was told that he had “sorted out the approval and you can go ahead and get started tomorrow and I will send the approval docs through to you as soon as I get the time to do it”: First Coaker Affidavit at [28]. (e) At a site meeting in early October 2021, Mr O’Connell told him words to the following effect: “s**o that you can keep the project moving you should make sure that new plans are able to generally match the footprint of the house that has been demolished as that way we can still rely on the approval that I’ve applied for and will soon have, and I can the [sic] issue an approval for the building works related to that approval and then I can just modify that consent when new plans are complete…the consent for the alterations and additions that I have applied for would be issued soon, we should be able to start the building works in a couple of weeks if all goes well”: First Coaker Affidavit at [35]-[36]. Mr Coaker says that this was the first time he realised that development consent had not been granted. (f) At some time in November 2021 Mr O’Connell told Mr Coaker that “I haven’t got the approval yet, but it should be issued very soon” and “you c**ould get started but I won*’t be able to attend inspections for the slab, but what you should do is make sure that you get the structural engineer out to check that its all good and make sure that you take a heap of photos up to and including the pour… there is probably no real issue with starting anyway as I probably could issue some form of approval myself”: First Coaker Affidavit at [43]-[45]. (g) Sometime in December 2021 Mr O’Connell said to Mr Coaker “[y]ou can keep going as there are ways,* we can sort it out down the track… Council is still delaying everything, and approvals are taking heaps longer at the moment”: First Coaker Affidavit at [48].

8. Also during cross-examination, Mr Coaker was shown an email he was copied into dated 28 September 2021 (p 8 of Exhibit B) in which he was informed by Mr O’Connell that “the DA hasn’t been approved yet”. Mr Coaker again readily agreed that he had received this email, and so knew at least from 28 September 2021 that any development works he conducted from this point on were unlawful. I will refer to this later in my judgment concerning the Defendant’s state of mind.

9. The added complication of Mr Coaker’s concession regarding the 28 September 2021 email is that it indicates that part of his First Affidavit referred to at (e) to (g) in the paragraph above are not entirely accurate, in particular paragraphs [35]-[36], [43]-[45], and [48]. As stated, based on his evidence in cross-examination, it is clear that Mr Coaker knew by 28 September 2021 that the Council had not issued a development consent for the works that were being undertaken at the property, and that continued until completion of the works in December 2022. Based on the frankness of his oral evidence, I will again treat the errors in his affidavit evidence as being inadvertent, and the result of some confusion as to the dates of conversations, rather than being intentional.

D. Statutory provisions and principles of sentencing

10. The Defendant has pleaded guilty to an offence under s 4.2(1) of the EPA Act which relevantly provides that:

4.2 Development that needs consent

(1) General If an environmental planning instrument provides that specified development may not be carried out except with development consent, a person must not carry the development out on land to which the provision applies unless—

(a) such a consent has been obtained and is in force, and

(b) the development is carried out in accordance with the consent and the instrument.

Maximum penalty—Tier 1 monetary penalty.

11. The particulars of the offence are as follows:

(a) The development: Demolition of a previously existing dwelling house and the erection of a new dwelling house, carport and garage.

(b) The Land: the defendant carried out the said development on land comprising Lot 2 in DP 567249, known as 842 Terranora Road, Bungalora (Land).

(c) The environmental planning instruments and their provisions requiring consent

i. The environmental planning instruments that applied to the Land at the relevant time were the Tweed Local Environmental Plan 20**14 (TLEP 2014) and the Tweed Local Environmental Plan 2000 (TLEP 2000). Throughout the period in which the said development was carried out, the Land was situated partly in the RU2 Rural Landscape zone under the TLEP 2014 and partly in the 7(d) Environmental Protection (Scenic/Escarpment) zone under TLEP 2000.

ii. Throughout the period in which the said development was carried out:

a. The TLEP 2014 provided that, on that part of the Land situated in the RU2 Rural Landscape zone, development of the type carried out by the Defendant, as particularised above, may not be carried out except with development consent, such provision being made by clause 2.3 of the TLEP 2014 and the accompanying Land Use Table; and

b. The TLEP 2000 provided that, on that part of the Land situated in the 7(d) Environmental Protection (Scenic/Escarpment) zone, development of the type carried out by the Defendant, as particularised above, may not be carried out except with development consent, such provision being made by clause 11 of the TLEP 2000 and the accompanying Land Use Table.

(d) The manner of contravention: The Defendant was the builder which carried out the said development on the Land.

12. Although an offence under s 4.2(1) states that it attracts a “Tier 1 monetary penalty", s 9.52(2)(b) of the EP**A Act provides that a Tier 1 penalty applies only if the Prosecution establishes (beyond reasonable doubt) that an offence “caused or was likely to cause harm to the environment” or “caused the death of or serious injury or illness to a person”. Mr Howard SC submitted that neither of these elements applied, hence a Tier 2 penalty applies instead: s 9.52(3) of the EPA Act. In the case of a corporation, the maximum Tier 2 penalty is a fine not exceeding $2,000,000: s 9.53(1)(a)(i) of the EPA Act.

13. The “instinctive synthesis” process of sentencing requires the Court in its sentencing determination to consider the objective circumstances of the offences together with the subjective circumstances of the Defendant: Georges River Council v RNA Building Solutions Pty Ltd; Georges River Council v El Saadi [2024] NSWLEC 139 (‘El Saadi’) at [35]. The Court must also have regard to the purposes of sentencing set out in s 3A of the Crimes (Sentencing Procedure) Act 1999 (NSW) (Sentencing Act), which are as follows:

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.

14. Section 21A of the Sentencing Act sets out aggravating and mitigating factors which the Court is required to take into account in determining the sentence for an offence. Mr Howard SC did not submit that any of the aggravating factors set out in s 21A(2) of the Sentencing Act apply to the offending here. In relation to the mitigating factors set out in s 21A(3), Mr Coffey made submission relevant to the following mitigating factors:

21A Aggravating, mitigating and other factors in sentencing

…

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

…

(e) the offender does not have any record (or any significant record) of previous convictions,

(f) the offender was a person of good character,

(g) the offender is unlikely to re-offend,

…

(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),

15. As indicated by s 21A(3)(k), I must take into account the fact that the Defendant has pleaded guilty, and at the first available opportunity: s 22(1) of the Sentencing Act.

E. Objective seriousness of the offence

16. The following matters are relevant to a consideration of the objective seriousness of the offending (see Bentley v BGP P**roperties Pty Ltd [2006] NSWLEC 34; (2006) 145 LGERA 234 at [163] per Preston CJ; Plath v Rawson [2009] NSWLEC 178; (2009) 170 LGERA 253 at [48] per Preston CJ):

(a) the maximum penalty for the offence; (b) the nature of the offending and its place in the statutory scheme; (c) any harm caused to the environment in the commission of the offence; (d) the state of mind of the offender and their reasons for committing the offence; (e) the extent to which harm or risk of harm was foreseeable; and (f) whether any practical measures were taken to avoid harm or risk of harm.

Maximum Penalty

17. As discussed above, the maximum penalty for a Tier 2 offence such as this breach of s 4.2(1)(a) of the EPA Act is, for a corporate defendant, a fine of $2,000,000: s 9.53(1)(a)(i) of the EPA Act. The possibility of imposing such a significant financial penalty is a clear sign that Parliament considers a breach of s 4.2(1) of the EPA Act to be objectively serious offending: Fairfield City Council v Oztech Developments Pty Ltd [2021] NSWLEC 81 at [73] (‘Oztech’) per Robson J.

Nature of the offences

18. Testing the objective seriousness of a breach of s 4.2(1) involves giving consideration to the objects of the EPA Act, which are relevantly as follows:

1.3 Objects of Act

The objects of this Act are as follows—

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

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

(c) to promote the orderly and economic use and development of land,

…

(g) to promote good design and amenity of the built environment,

(h) to promote the proper construction and maintenance of buildings, including the protection of the health and safety of their occupants,

…

19. I accept the submission of Mr Howard SC that a breach of s 4.2(1) is conduct that “tends to undermine the planning system established under the EP*&A Act and, thus, such conduct is* antipathetic to the objects of the Act” including those set out above: PWS at [38]. In the written submissions filed on his behalf (DWS), the Defendant has accepted that there is a degree of “inherent harm” in his offending conduct which involves non-compliance with planning regimes set out in the EPA Act*:* DWS at [27]. He further accepts that such conduct is contrary to the objects set out in the EPA Act referred to above, and that the object of promoting good design and proper construction of buildings cannot be guaranteed when there has been such non-compliance: Oztec**h at [64] per Robson J. The Defendant has also referred the Court to the judgment of the Chief Judge in Secretary, Department of Planning and Environment v Boggabri Coal Pty Ltd [2014] NSWLEC 154 at [17]-[18] where his Honour observed:

[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].

20. Considering all the matters here, I accept that the harm caused was limited to the Defendant’s failure to ensure there was regulatory approval for the development work that was undertaken. The unlawful development work undertaken however involves the demolition of an existing dwelling, and the building of a new and substantial family dwelling. The harm caused to the integrity of the planning system by this unlawful conduct is by no means trivial.

Defendant’s state of mind and reasons for the commission of the offence

21. Section 4.2(1) of the EPA Act creates a strict liability offence. The Defendant’s state of mind is however relevant to an assessment of the objective seriousness of the offending, as a strict liability offence may be objectively more serious if committed intentionally, recklessly, or negligently: Director*-*General of the Department of Environment and Climate Change v Rae [2009] NSWLEC 137; (2009) 168 LGERA 121 at [42]. Premeditation also makes offending more serious than when the offence is committed as “spur of the moment” conduct: R v Morabito (1992) 62 A Crim R 82 at 86.

22. For the reasons set out above at [8]-[9], Mr Coaker (the controlling mind of the Defendant) knew at least by 28 September 2021 that the Council had not approved a development consent, and hence at least from this date knew that the development work the Defendant was undertaking was unlawful. The breach of s 4.2(1) is therefore deliberate and knowing from this point, and this is a matter I take into account for sentencing purposes.

Foreseeability of risk of harm and practical measures to prevent risk of harm

23. No actual harm was caused to the environment in this matter. The harm is the damage caused to the integrity of the planning system by the Defendant’s conduct. This harm could easily have been avoided. The development works on the Property are of a kind likely to have been approved by Council if application was made prior to the works commencing. Mr Howard SC submitted that there was no aspect of the development works that would likely have resulted in a development application being refused by the Council.

Conclusion on objective seriousness

24. Mr Howard SC has submitted that the offence here is at the “lower end of the range of offending conduct proscribed by s 4.2(1)(a) of the EP&A Act”: PWS at [29]. Unsurprisingly, Mr Coffey makes the same submission for the Defendant.

25. Having regard to the matters referred to above, I agree that the offence committed by the Defendant is at the lower end of seriousness for a breach of s 4.2(1) of the EPA Act.

F. Subjective circumstances

Guilty plea and cooperation

26. As required by s 22 of the Sentencing Act, I have regard to the guilty plea of the Defendant, and note that it was entered on the first occasion this matter was before the Court. Mr Howard SC accepts that the Defendant is entitled to the full 25% discount for the utilitarian value of the plea: R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309 at [160].

Remorse

27. Section 21A(3)(i) provides that remorse shown by an offender is to be taken into account as a mitigating factor 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)

28. Mr Coaker gave evidence before me, and in the First Coaker Affidavit he states as follows:

69. I apologise to the Court, to the Council and the Community that the Defendant, through me, carried out the demolition and building works to construct a new dwelling without the necessary planning approval.

70. I am professionally and personally embarrassed. This is a stain on my good and longstanding reputation. However, I accept that I am responsible for my own actions and the impacts created by them.

71. On reflection, I can see that there were several occasions where I could and should have paused and attempted to obtain independent counsel or advice about what was happening. However, I genuinely believed and relied on the expertise and experience of Mr O'Connell.

72. I deeply regret and am remorseful that the situation resulted in non-compliance and understand that despite my reliance on others, I should have taken additional independent steps to verify that approvals were in place.

73. The investigation and prosecution have taken a significant financial and emotional toll on me and my family and has, through my own actions admittedly, contributed to the breakdown of my marriage. I say this only to make clear how serious I consider this to be. I nevertheless understand and accept that persons or companies involved in or responsible (either in part or in full) for matters such as this, must also be held accountable.

74. I acknowledge that my ignorance, mislaid trust in Mr O'Connell, and naivety contributed to the situation that has unfolded.

75. I have learned from this experience and solemnly affirm that I will never again place unquestioning trust in others where legal responsibilities are concerned. I will ensure all future projects are independently verified and compliant with all statutory obligations.

76. I have also assisted Mr. Garbett in regularising the new dwelling on this Land including assisting with the coordination and lodgement of a Development application to Council to formalise the use and through being open and transparent in my regular communication with Mr. Garbett, who has also been impacted by the events that have transpired in this matter and by the actions of others involved. I am proud of the fact that the friendship between myself and Mr. Garbett has actually strengthened through the course of this matter and by the support we have given each other along the way.

29. Although this evidence arguably places too much emphasis on Mr O’Connell (given that Mr Coaker knew at least from 28 September 2021 that the Defendant was engaged in unlawful works) Mr Coaker has taken responsibility for his actions and that of the Defendant. He has admitted wrongdoing, and made a statement of regret. I am satisfied that he is remorseful for the offending by the Defendant company.

No prior convictions, good character, And low chance of re-offending

30. The Defendant has no prior criminal history. Having considered the six character references given by various business associates and representatives of his community, I accept that there is evidence that the Defendant’s building work is of high quality, that Mr Coaker (who is the ‘human face’ of the Defendant) is a man of good character, and that his role in the Defendant’s offending here is out of character. For that reason, I also consider it highly unlikely that the Defendant will offend similarly again.

G. General and specific deterrence

31. I adopt the submission made by Mr Howard SC that for environmental offences such as this, the purpose of general deterrence in sentencing is central to discouraging other persons from committing similar offences: Cameron v Eurobodalla Shire Council [2006] NSWLEC 47; (2006) 146 LGERA 349 at [71]-[81]. I accept that this is of particular importance where the defendant is a builder: Lane Cove Council v Wu [2011] NSWLEC 43 [40]-[41] per Sheahan J (‘Wu’). I accept also that persons are unlikely to be deterred from committing environmental offences if nominal or insufficient fines are imposed: Environment Protection Authority v Ballina Shire Council [2006] NSWLEC 289; (2006) 148 LGERA 278 at [67] per Preston CJ. My attention was in this regard drawn to a passage in Wu where in relation to the issue of sufficiency of penalty the following appears:

[40] In Mosman Municipal Council v Menai Excavations Pty Ltd [2002] NSWLEC 132; (2002) 122 LGERA 89 (at [35]), it was noted that offences against the EPA Act tend to undermine the integrity of the planning system. In Keir v Sutherland Shire Council [2004] NSWLEC 754, it was said by the former Chief Judge of this court, McClellan ChJ (at [13]) that:

" The resources of the community are not sufficient, and never could be, to allow for councils to constantly supervise the work which licensed builders carry out on a daily basis*. By enacting the Environmental Planning and Assessment Act and similar legislation, the legislature has provided a* frame work of regulation which is in the interests of the whole community, although its effectiveness depends upon individuals observing its provisions. Builders and others who have been granted licences by the relevant bodies to carry out building work carry a particular responsibility to ensure the work that they do is carried out in accordance with the law. Accordingly, when such a person breaches the law the penalty imposed must be sufficient, not only to provide adequately to punish the breach, but to ensure that others with licences to carry out similar work are reminded of their responsibilities under the law."

32. I also accept that specific deterrence has a role to play in sentencing, but as stated above, and for the reasons expressed, I consider it unlikely that the Defendant will offend again.

H. Consistency in sentencing

33. No two cases are the same, and the determination of an appropriate sentence depends in part on the agreed facts and other factual findings I have made, as well as the various subjective and other circumstances outlined above. However, consistency in sentencing is an important objective. Although sentencing is a discrete undertaking, the principle of even-handedness dictates that I should seek to impose a sentence consistent with general patterns of sentencing in comparable or like cases: R v Oliver (1980) 7 A Crim R 174 at 177; Chief Executive of the Office of Environment and Heritage v Bombala Investments Pty Ltd [2013] NSWLEC 185; (2013) 199 LGERA 236 at [115]. Given the well-acknowledged limitation of comparing penalties in such a fact-specific exercise, I have considered and compared the cases referred to below with caution.

34. The Prosecution has provided a list of authorities which assist the Court generally with key principles concerning breaches of s 4.2(1), some with an instructive emphasis on the importance of deterrence and the integrity of the EPA Act. I have read and considered all six, listed as follows: Cameron v Eurobodalla Shire Council [2006] NSWLEC 47; (2006) 146 LGERA 349; Lane Cove Council v Wu [2011] NSWLEC 43; Cabonne Shire Council v E**nvironment P**rotection A**uthority [2001] NSWCCA 280; (2001) 115 LGERA 304; Burwood Council v Alam [2025] NSWLEC 2; Burwood Council v Portleigh Pty Ltd [2023] NSWLEC 103; and Fairfield City Council v Oztech Developments Pty Ltd [2021] NSWLEC 81. I consider the latter of the six and a case referenced by both parties in Court (El Saadi) to be the most relevant.

35. Oztech relates to the unlawful and premeditated development of six dwellings without development consent by, inter alia, a corporate principal contractor. Although factually distinct, Robson J made relevant observations about the objective seriousness of breaches of s 4.2(1) by a corporation and the harm caused to the integrity of EPA Act. It is not necessary to set out the details of the objective seriousness or the aggravating and mitigating factors, however I have considered his reasoning closely and I have sought to apply the relevant legal principles from this judgment with consistency: Hil**i v T**he Queen (2010) 242 CLR 520; [2010] HCA 45 at [18].

36. El Saadi concerned the unlawful demolition of an existing house, an excavation of the land and the erection of a new house, comparable to the present matter. However, the defendants (the owner and the corporation, of which the owner was sole director) were charged with aiding, abetting, counselling or procuring another person to commit the breach (the principal offender was not charged). The final penalty imposed by Preston CJ was reached by interpreting the state of mind of the defendant (as a secondary participant not principal offender) and was reduced by the totality principle.

37. As stated, I consider the present offence to be at the lower end of seriousness for a breach of s 4.2(1) of the EPA Act*,* and it does not have similar aggravating factors present in many of these other cases. Mr Howard SC conceded that this was a case (unlike those listed above) that could have been brought in the Local Court but for the fact that the Council seeks a publication order. In the Local Court, any fine imposed for the offending here would have been subject to the threshold limit of $110,000: s 9.57(3) of the EPA Act.

Fines Act – Capacity to pay

38. The Defendant did not make an application that it did not have the capacity to pay any fine: s 6 of the Fines Act 1996 (NSW). However, a record of the Defendant’s “profit and loss” statements was tendered without objection, which assists me with a sense of the Defendant’s size and scale. It is a relatively small business, never making above $100,000 in net profit in any of the last 5 years.

I. Publication order

39. In order 5 of the Summons, the Council seeks a publication order pursuant to s 9.56(2A) of the EPA Act*,* and s 250(1)(a) and (b) of the Protection of the Environment Operations Act 1997 (NSW) (PEO Act). Mr Howard SC provided me with a copy of a “Draft Court Order for Publication”. This also contains a proposed publication notice. The draft orders and notice are as follows:

Draft Court order for Publication Notice

Order sought by the Prosecutor:

Pursuant to section 250(1)(a) of the Protection of the Environment Operations Act 1997 (NSW), the Court orders that:

The Defendant must, at its own expense, cause to be published a public notice in the form annexed to this Order and marked “Annexure A”, in accordance with the following requirements:

a. The notice is to be published once within 28 days of the date of these Orders;

b. The notice must be published in the print and online versions of the Gold Coast Bulletin and Tweed Link or such other local newspapers circulating in the Tweed Shire region as the Court may approve;

c. In the print publications, the notice must appear within the first 5 pages, on an odd-numbered page, and must be no smaller than 10 cm x 20 cm in size;

d. The Defendant must provide the Prosecutor and the Court with a copy of the published notice and proof of publication within 7 days of its publication.

PUBLICATION NOTICE

The Land and Environment Court of New South Wales has convicted a builder for carrying out significant building works without a development consent, when development consent was required, contrary to the Environmental Planning and Assessment Act 1979 (NSW).

The offence occurred at a property in the Tweed Shire and involved the demolition of an existing dwelling house and the erection of a new dwelling house without the necessary development consent. The builder has been ordered to pay a fine of [$ INSERT AMOUNT ] and to pay the Council’s legal costs and was ordered to pay for the publication of this notice.

The Court decision stands as a reminder that those involved in the carrying out of development, including building works, in the Tweed Shire must comply with the law by first obtaining any necessary development consent and that failure to do so may lead to prosecution and criminal penalties.

40. Mr Coffey did not consent to the making of the publication order or to the proposed notice, but described it as “fair”. The proposed publication notice does not mention the Defendant by name. While I consider there are good reasons relating to general deterrence for granting the publication order sought, I also agree that there is no need to name the Defendant: see Harris v Harrison (2014) 86 NSWLR 422; [2014] NSWCCA 84 at [128] per Simpson J (Hall and Schmidt JJ agreeing).

41. I will make the publication orders sought, and have taken account of this (and that there will be a cost to the Defendant for this) in assessing penalty.

J. Costs

42. The Council seeks an order for payment by the Defendant of costs pursuant to s 257B of the Criminal Procedure Act 1986 (NSW), and for costs associated with the investigation of the offence under s 9.56(2A) of the EPA Act, and s 248 of the PEO Act*,* and for the publication order under s 250(1)(a) and (b) of the P**EO Act. It is appropriate that orders be made to this effect. No agreement has been reached on costs. Mr Howard SC informed me that if costs go to assessment, a sum of approximately $85,000 will be sought by the Council. I am not in a position to know what the costs figure might ultimately be upon assessment, but it will be a large sum, and I take that into account in assessing penalty.

K. Appropriate penalty

43. Synthesising all the objective circumstances of the offence here, the subjective circumstances of the Defendant and the other relevant sentencing factors I have referred to above, I consider that the appropriate sentence for the breach of s 4.2(1) of the EPA Act here is a fine in the sum of $50,000 (to be reduced by 25%). This fine is to be paid to the Council: s 694(1) of the Local Government Act 1993 (NSW); El Saadi at [113]-[129].

Orders

44. The orders of the Court are:

45. Coakers Building Service Pty Ltd is convicted of the offence against s 4.2(1) of the Environmental Planning and Assessment Act 1979 (NSW) as charged.

46. Coakers Building Service Pty Ltd is fined the sum of $37,500 (being a $50,000 fine reduced to $37,500 because of a 25% discount due to the Defendant’s early plea).

47. Coakers Building Service Pty Ltd is to pay the fine in order 2 to the Registrar of the Land and Environment Court, who is to pay such fine when recovered to Tweed Shire Council, pursuant to s 694(1) of the Local Government Act 1993 (NSW).

48. Coakers Building Service Pty Ltd is to pay the costs of the Tweed Shire Council as agreed or assessed, pursuant to s 257B of the Criminal Procedure Act 1986 (NSW).

49. Coakers Building Service Pty Ltd is to pay the costs of the Tweed Shire Council as agreed or assessed, pursuant to s 248 of the Protection of the Environment Operations Act 1997 (NSW).

50. Coakers Building Service Pty Ltd is, within 28 days of the date of this judgment, at its own expense, to publish in the print and online versions of the Gold Coast Bulletin and Tweed Link, a notice in the form attached as Annexure A to this judgment, pursuant to s 9.56(2A) of the Environmental Planning and Assessment Act 1979 (NSW), and s 250(1)(a) and (b) of the Protection of the Environment Operations Act 1997 (NSW).

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Annexure A (111 KB, pdf)