Wingecarribee Shire Council v Golman; Wingecarribee Shire Council v Lake House Bowral Pty Ltd

Decision: See orders at [149].

Catchwords: OFFENCES AND PENALTIES: carrying out development without consent by individual and corporate offender – pleas of guilty – sentencing principles – extent of environmental harm – whether harm was substantial – state of mind at the time of the commission of the offences was recklessness – lower end of moderately objective seriousness – no prior convictions – specific and general deterrence warranted – totality principle applied – fine imposed – publication order made.

Legislation Cited: Crimes (Sentencing Procedure) Act 1999, ss 3A, 21A(2), 21A(3)
Criminal Procedure Act 1986, ss 257B and 257G
Environmental Planning and Assessment Act 1979, ss 1.3, 4.2, 9.22, 9.23, 9.51, 9.53, 9.56(2A)
Local Government Act 1993, s 694(1)
Protection of the Environment Operations Act 1997, ss 241 and 250(1)(a)
Wingecarribee Local Environmental Plan 2010, Pt 2 Land Use Table

Cases Cited: ACE Demolition & Excavation Pty Ltd v Environment Protection Authority [2024] NSWCCA 4; (2024) 260 LGERA 358
Axer Pty Ltd v Environment Protection Authority (1993) 113 LGERA 357
Bentley v BGP Properties Pty Ltd [2006] NSWLEC 34; (2006) 145 LGERA 234
Cabonne Shire Council v Environment Protection Authority [2001] NSWCCA 280; (2001) 115 LGERA 304
Camilleri’s Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683
Chief Executive, Office of Environment & Heritage v Ausgrid [2013] NSWLEC 51; (2013) 199 LGERA 1
Chief Executive, Office of Environment & Heritage v Orica Pty Ltd; Environment Protection Authority v Orica Pty Ltd [2015] NSWLEC 109
Elias v The Queen [2013] HCA 31; (2013) 248 CLR 483
Environment Protection Authority v Barnes [2006] NSWCCA 246
Environment Protection Authority v Crown in the Right of New South Wales [2019] NSWLEC 178
Environment Protection Authority v Waste Recycling and Processing Corporation [2006] NSWLEC 419; (2006) 148 LGERA 299
Georges River Council v RNA Building Solutions Pty Ltd; Georges River Council v El Saadi [2024] NSWLEC 139; (2024) 262 LGERA 190
Gore v The Queen [2010] NSWCCA 330; (2010) 208 A Crim R 353
Harris v Harrison [2014] NSWCCA 84; (2014) 86 NSWLR 422
Harrison v Perdikaris [2015] NSWLEC 99
Hawkesbury City Council v Foster and Mushroom Composters Pty Ltd (1997) 97 LGERA 12
Hoare v The Queen [1989] HCA 33; (1989) 167 CLR 348
Holroyd City Council v El-Khouri [2008] NSWLEC 83
Johnson v The Queen [2004] HCA 15; (2004) 78 ALJR 616
Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357
Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59
Mosman Municipal Council v Menai Excavations Pty Ltd [2002] NSWLEC 132; (2002) 122 LGERA 89
Mouawad v The Hills Shire Council [2013] NSWLEC 165; (2013) 199 LGERA 28
Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610
Plath v Rawson [2009] NSWLEC 178; (2009) 170 LGERA 253
R v De Simoni [1981] HCA 31; (1981) 147 CLR 383
R v Dodd (1991) 57 A Crim R 349
R v MAK; R v MSK [2006] NSWCCA 381; (2006) 167 A Crim R 159
R v Nichols (1991) 57 A Crim R 391
R v Olbrich [1999] HCA 54; (1999) 199 CLR 270
R v Oliver (1980) 7 A Crim R 174
R v Thomson [2000] NSWCCA 309; (2000) 49 NSWLR 383
R v Visconti [1982] 2 NSWLR 104
R v Wickham [2004] NSWCCA 193
Secretary, Department of Planning and Environment v Boggabri Coal Pty Ltd [2014] NSWLEC 154
Secretary, Department of Planning and Environment v Leda Manorstead Pty Ltd (No 7) [2021] NSWLEC 26
Veen v The Queen [1979] HCA 7; (1979) 143 CLR 458
Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465
Walden v Hensler [1987] HCA 54; (1987) 163 CLR 561
Water NSW v Barlow [2019] NSWLEC 30; (2019) 244 LGERA 1

Category: Sentence

Parties: Wingecarribee Shire Council (Prosecutor)
Serge Golman (Defendant)
Lake House Bowral Pty Ltd (Defendant)

Representation: Counsel:
I Hemmings SC with R Coffey (Prosecutor)
N Eastman SC with J Farrell (Defendant)
Solicitors:
Hones Lawyers (Prosecutor)
Boskovitz Lawyers (Defendant)

File Number(s): 2024/236563, 2024/236564, 2024/236565, 2024/236628

Publication restriction: Nil

JUDGMENT

Lake House Bowral Pty Ltd and Serge Golman Plead Guilty to Offences Against s 9.51 of the EPAA

1. The first defendant, Lake House Bowral Pty Ltd (“LHB”), is the owner of land comprising Lot 1 in DP 1279853, 27 Kimberley Drive, Bowral (“the site”). The site is within the local government area of the prosecutor, Wingecarribee Shire Council (“the Council”).

2. At the time that the offending conduct took place, the second defendant, Serge Golman (“Golman”), was appointed as the nominee of LHB by the company’s sole director, Victoria Golman. Golman became the sole director of LHB on 11 June 2025 (together with LHB, “the defendants”).

3. Golman has pleaded guilty to two offences against s 9.51 of the Environmental Planning and Assessment Act 1979 (“EPAA”) for carrying out development on the site without consent with respect to construction works to some stables (“the stables charge”) and works to a dwelling house (“the dwelling house charge”), contrary to ss 4.2(1)(a) and 4.2(1)(b) of that Act.

4. The particulars of the stables charge are that between 16 April 2022 and 1 March 2023, Golman aided, abetted, counselled or procured internal alteration works to that structure to construct a kitchen, dining area, laundry, living room, two bedrooms, and three bathrooms. The development was carried out otherwise than in accordance with any development consent applying to the site.

5. The particulars of the dwelling house charge are that between 16 April 2022 and 1 March 2023, Golman aided, abetted, counselled or procured the:

(a) excavation to the rear of the dwelling for the purpose of constructing a retaining wall; (b) construction of a concrete slab; and (c) construction of a retaining wall, an extension to the rear of the dwelling comprising a one storey structure, and the erection of an awning to the front of the residence.

6. The unlawful dwelling house development was carried out other than in accordance with any consent applying to the site.

7. Golman and LHB have also each pleaded guilty to an offence against s 9.51 of the EPAA for carrying out development on the site without consent with respect to earthworks (“the earthworks charges”) contrary to s 4.2(1)(a) of that Act.

8. The particulars of the earthworks charges are that between 16 April 2022 and 1 March 2023, both LHB and Golman aided, abetted, counselled or procured unlawful earthworks for the installation of drainage lines and landfilling.

9. For the reasons below, I find that Golman and LHB are liable to pay monetary penalties of $210,000.00 and $150,000.00 respectively.

LHB and Golman Carry Out Development at 27 Kimberley Drive

10. The factual background to the four offences is not in dispute. It was contained in a statement of agreed facts (“SOAF”) and an addendum to the SOAF.

11. The site contains a chain of four dams that surround the main building, the dwelling house. The dwelling house is depicted in the north-east corner of the aerial photograph below:

12. The stables are the structure located in the south-west corner. The waters in the system generally run from left to right of the photograph. These watercourses form part of the Mittagong Creek.

13. Approximately 53 development consents granted by the Council apply to the site. Relevantly, development consent LUA03/0812 granted on 8 August 2003, approved the construction of the dwelling house and garage on the site (“the consent”).

14. LHB purchased the site on 22 December 2021. However, prior to doing so, it had engaged the company which had employed Golman, namely, Austral Interiors, to prepare development plans. The plans, which dated back to 11 January 2021, depicted the development for the dwelling house extension, stables and a wellness centre.

15. In March 2022 a significant storm event affected the locality in which 427 mm of rain fell over a 17 day period. The storm event required the Council to carry out restoration works on lands near the site.

16. On 16 April 2022 Golman, in his capacity as agent of LHB, directed the carrying out of works on the site which were not authorised by the consent. Works were undertaken in relation to the dwelling house, the stables, and the earthworks.

17. The extent of the works were as follows:

Dwelling House

27. Between 16 April 2022 to 1 March 2023, Mr Golman, in his capacity as agent of the Corporate Defendant, caused and/or directed the carrying out of works on the Land which were not authorised by Development Consent No. LUA03/0812, including:

a. construction of an extension to the rear of the main dwelling comprising one storey structure;

b. excavation to the rear of the main dwelling for the purpose of constructing a retaining wall;

c. construction of a retaining wall; and

d. construction of an awning to the front of the residence.

28. Between 16 April 2022 to 11 August 2022, excavation occurred to the rear of the main dwelling.

29. Between 11 August 2022 to 22 August 2022, a concrete slab was constructed to the rear of the main dwelling.

30. Between 22 August 2022 to 16 December 2023, the retaining wall and extension to the rear of the main dwelling was constructed.

31. Between 29 June 2022 to 22 August 2022, an awning to the front of the main dwelling was constructed.

32. The development particularised at [27] – [31] required development consent.

33. Mr Golman caused or directed the building works on the Land, including the building of a structure at the rear of the house called a conservatory. This conduct establishes that Mr Golman aided, abetted, counselled or procured the carrying out of the development.

34. The development was carried out otherwise than in accordance with any consent applying to the land. Relevantly, it was contrary to the following conditions of Development Consent No. LUA03/0812:

a. Condition 3 – Erosion and Sediment Control

The following control measures shall be installed to minimise the effect of site disturbance and soil erosion:-

a. The strategic placement of bales of hay or a geotextile fabric fence to contain soil infiltration and runoff from sites (refer to Council’s guidelines for “Erosion and Sediment Control on Building Sites”.

b. Restricting vehicles access to one designated point.

c. The installation of gutters, downpipes, and the connection of downpipes to the stormwater disposal system prior to the fixing of the roof cladding.

REASON: To prevent a detrimental impact on the aquatic environment.

b. Condition 4 – Ground Levels

Natural ground levels are not to be altered or adjusted other than shown on the approved plans without the prior consent of Council.

REASON: To prevent a detrimental impact on neighbouring buildings and the surrounding environment.

c. Condition 11 – Cut and Fill

Earthworks shall not exceed a maximum of 1.0m cut and 925mm fill.

d. Condition 13 – Residential Building Work

i. Building work that involves residential building work (within the meaning of the Home Building Act 1989) must not be carried out unless the principal certifying authority for the development to which the work relates:

(a) in the case of work to be done by a licensee under that Act:

(i) has been informed in writing of the licensee’s name and contractor licence numbers, and

1. is satisfied that the licensee has complied with the requirements of Part 6 of that Act, or

(b) in the case of work to be done by any other person:

(i) has been informed in writing of the person’s name and owner-builder permit number, or

(j) has been given a declaration, signed by the owner of the land, that states that the reasonable market cost of the labour and materials involved in the work is less than the amount prescribed for the purposes of the definition of owner-builder work in Section 29 of that Act,

ii. A certificate purporting to be issued by an approved insurer under Part 6 of the Home Building Act 1989 that states that a person is the holder of an insurance policy issued for the purposes of that Part is, for the purposes of this clause, sufficient evidence that the person has complied with the requirements of that Part.

Stables

35. Mr Golman aided, abetted, counselled or procured the carrying out of development which an environmental planning instrument specified as development which may not be carried out except with development consent, otherwise in accordance with the development consent that had been obtained and was in force.

36. Between 16 April 2022 to 1 March 2023, Mr Golman caused and/or directed the carrying out of works on the Land contrary to Development Consent No. LUA03/0812 involving internal alteration works to the structure to consent:

a. a kitchen;

b. a dining area;

c. a laundry;

d. a living room;

e. two bedrooms; and

f. three bathrooms.

37. The development particularised at [36] required development consent.

38. The development was carried out otherwise than in accordance with any consent applying to the Land, such as being contrary to, the condition of Development Consent No. LUA03/0812 requiring the development to be in accordance with plans prepared by King Design Architects Plan No 03-964-DA-01-X dated May 2003.

Earthworks

39. The Corporate Defendant and Mr Golman aided, abetted, counselled or procured third parties to carry out development contrary to section 4.2(1)(b) because: (a) an environmental planning instrument specified development which may not be carried out except with development consent; and (b) the development was carried out otherwise in accordance with any development consent that had been obtained and was in force.

40. Between 16 April 2022 to 1 March 2023 Mr Golman, in his capacity as agent of the Corporate Defendant, procured the carrying out of physical acts on the Land by other third parties. Further, Mr Golman paid third parties for the carrying out of the physical acts.

41. The physical acts carried out on the Land by third parties were not authorised by Development Consent No. LUA03/0812, including:

a. earthworks for installation of drainage lines;

b. landfilling and earthworks.

42. Between 16 April 2022 to 29 June 2022, vegetation was removed and excavation occurred around the residential dwelling, and on other parts of the Land.

43. Between 29 June 2022 to 22 August 2022, the importation of fill took place in the location of vegetation removal, and to the rear of the residential dwelling, and the construction of a retaining wall.

44. The development particularised at [41] – [43] required development consent.

45. The development was carried out otherwise than in accordance with any consent applying to the Land, and contrary to the following conditions of Development Consent No. LUA03/0812:

a. Condition 3 – Erosion and Sediment Control

b. Condition 4 – Ground Levels

c. Condition 11 – Cut and Fill

d. Condition 13 – Residential Building Works

The Council Investigates the Unauthorised Works

18. On 30 June 2022 the Council received a complaint by email alleging that “there had been major earthworks including tree removal” near the site. The Council ascertained that no consent authorised the works described in the email.

19. An authorised officer of the Council inspected the site on 4 and 21 July, 10 and 11 August, and 22 November 2022. The Council issued various Development Control Orders, Notices to Take Preventative Action and Stop Work Orders.

20. On 3 August 2022 employees of the Council, Sara Rich and Grahame Dawson, participated in a video conference with Golman and his solicitor, Anthony Boskovitz. Rich deposed to having a conversation about the recent storm activity which affected the site as follows:

Anthony: Storm activity. Substantial amount of rain caused damage to trees. This caused the area around the dam to flood, access via the bridge became flooded. They were unable to access the house. The bridge was under water.

A number of trees fell down into the dam.

The dam failed.

My clients have spent a quarter of a million dollars trying to retain the land and stabilise the dam.

All materials can be verified, that have been used in the new driveway. Approval for the driveway can be applied for.

Graham: You need to engage an environmental consultant to supervise the works and make recommendations.

Anthony: The rocks used around the dam are ok. We want to work with Council and not cause any issue.

…

Me: Any more trees that need removing need approvals from Council.

Serge: No more trees will be removed.

Anthony: We agree to send you a request for an extension of the prevention notice.

Me: All works within the dam and waterway need approval.

21. On 27 July 2023, in an interview conducted by the Council pursuant to s 9.23 of the EPAA, Golman made the following admissions, namely, that:

a. he oversaw the building works at the land;

b. he was not aware of what consents were relied upon for undertaking development on the land;

c. the only inquiries made on behalf of LHB about consents or approvals in place was with the previous owner;

d. a structure at the rear of the house was built called the conservatory; the structure at the front of the house called the 'port cochere'; stables were renovated; and the landslide on the dam was stabilised with retaining walls;

e. he engaged the tradespersons or contractors to complete the works;

f. he directed the tradespersons or contractors to complete the works and paid the tradespersons;

g. he appointed a site supervisor to assist him;

h. he prepared the architectural drawings for the port cochere, stables, and wall conservatory;

i. there were no systems in place to track compliance with consents or other approvals;

j. there were no systems in place to track compliance with erosion and sediment control plans prior to the prevention notice being issued by the Council.

22. On 8 August 2023, in response to a notice issued pursuant to s 9.22 of the EPAA, LHB made the following admissions:

a. Mr Benjamin Sandeman was engaged as the project manager to facilitate work on the Land and installed the drainage lines. His involvement was for the duration of the alleged works on the Land;

b. Cibar Land Surveyor was engaged to facilitate the preparation of survey information;

c. Acor provided structural engineering advice in respect to the roof of the Conservatory and the Porte Cochere;

d. GHI Pty Ltd carried out demolition works, land clearing works and for the provision of windows, doors and plasterboard internally and external rendering, provided labour for the clearing of land and associated landfilling and earthworks;

e. Southern Crowe Excavations did works for the Conservatory in the form of digging footings and foundations including the retaining wall at the rear of the Conservatory;

f. End to End Constructions prepared the concrete footings and ground floor slab for the Conservatory and built the retaining wall for the Dam;

g. Braemar Fabrications supplied and installed the structural steel for the Conservatory and the Porte Cochere;

h. Emcon Pty Ltd completed the timber framing works for the Conservatory;

i. Crown Industries installed the air conditioning for the Conservatory;

j. Ko Ider Electrical Services completed the electrical works for the Shed, Porte Cochere and the Conservatory;

k. B J Armstrong Pluming Pty Ltd completed the plumbing in the Conservatory and ran water services to the Shed;

l. Marshall Roofing Pty Ltd completed the roofing to the Porte Cochere and the Conservatory;

m. Team Members Pty Ltd undertook the tiling for the Conservatory and the Porte Cochere;

n. Carpet Call Pty Ltd installed timber flooring for the bedrooms in the Conservatory;

o. there has been no contact or communication with private certifiers concerning the authorised works;

p. the documents entitled detailed 'plans and 3D montages for the conservatory and ancillary works therein', 'works associated with the Port Cochere' and 'works associated with the Stables Building' were prepared by Mr Golman;

q. at the time of the interview, no structural or engineering certification has been provided in respect to the authorised works or any part of them.

Golman and LHB Attempt to Regularise the Unauthorised Works

23. On 23 May 2024 two building information certificates (“BIC”) were lodged on the NSW Planning Portal in relation to the dwelling house and stables. The stables BIC did not relate to the internal stables works referred to above (at [4]).

24. On 5 August 2024 an appeal was commenced against the deemed refusal of both BIC applications.

25. On 22 April 2025 a new stables BIC was lodged upon the withdrawal of the earlier stables BIC.

26. On 4 June 2025 a development application (“DA”) for the use of the stables was lodged on the NSW Planning Portal.

27. On 19 August 2025 Golman and LHB commenced Class 1 proceedings in the Court in respect of the deemed refusals of the dwelling house BIC, the stables BIC, and the DA.

28. As at the date of the sentence hearing, both the dwelling house and stables BICs and the DA remained undetermined.

29. It is noted that on 25 March 2024, LHB agreed to consent orders made by the Court in Class 4 proceedings (2023/40809) which concerned additional works that were undertaken on the site. The consent orders required LHB, amongst other things, to carry out works particularised in a:

(a) Vegetation and Remediation Management Plan and Riparian Management Plan; (b) Biodiversity Management Plan; and (c) Tree Management Plan and Specifications.

The Council Commences Class 5 Proceedings

30. On 27 June 2024 the Council filed six summonses charging Golman and LHB with three offences each against s 9.51 of the EPAA. The three charges related to development that Golman and LHB had carried out on the site in breach of s 4.2 of that Act with respect to:

(a) internal construction works to the stables; (b) construction works to the dwelling house; and (c) earthworks for the installation of draining lines and landfilling.

31. On 23 August 2024 the Court granted the Council leave to file amended summonses in respect of the stables and dwelling house charges against Golman. The amended summonses removed the particulars that the offences were committed intentionally, and therefore, constituted Tier 1 offences under the EPAA.

32. On 18 October 2024 Golman entered a plea of guilty to the charges in the proceedings 2024/236563, 2024/236564 and 2024/236565.

33. On 14 March 2025 the Court granted the Council leave to file amended summonses for the earthworks charges against Golman and LHB which had the effect of removing the offences from Tier 1. Pleas of guilty were subsequently entered by LHB and Golman to the amended earthworks charges, and the remaining charges against LHB were withdrawn.

Legislative and Regulatory Framework Governing the Offences

34. Section 4.2 of the EPAA 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.

(2) For the purposes of subsection (1), development consent may be obtained—

(a) by the making of a determination by a consent authority to grant development consent, or

(b) in the case of complying development, by the issue of a complying development certificate.

35. Sections 9.51 and 9.53 of the EPAA state that:

9.51 Maximum monetary penalty—Tier 1, Tier 2 or Tier 3

If Tier 1, Tier 2 or Tier 3 is specified as the maximum monetary penalty at the end of a provision (or a number of provisions) of this Act, a person who contravenes or fails to comply with that provision (or those provisions) is guilty of an offence and liable to a monetary penalty not exceeding the relevant penalty specified in the following sections. If a period of imprisonment is also specified, the person is also liable to imprisonment not exceeding the period so specified.

9.53 Maximum penalty—Tier 2

(1) If Tier 2 is specified as the maximum penalty at the end of a provision (or a number of provisions) of this Act, a person who contravenes or fails to comply with that provision (or those provisions) is guilty of an offence and liable to a penalty not exceeding—

(a) in the case of a corporation—

(i) $2 million, and

(ii) for a continuing offence—a further $20,000 for each day the offence continues, or

(b) in the case of an individual—

(i) $500,000, and

(ii) for a continuing offence—a further $5,000 for each day the offence continues.

36. At all material times, the land was zoned C3 Environmental Management pursuant to Wingecarribee Local Environmental Plan 2010 (“WLEP”). The WLEP relevantly provides that:

2 Permitted without consent

Environmental protection works; Extensive agriculture; Home-based child care; Home occupations

37. It was not in dispute that the unauthorised works did not constitute works permitted without consent for the purposes of the WLEP.

Evidence Relied Upon by the Parties

38. The Council relied upon the expert evidence of:

(a) Dr Daniel Martens, a civil and environmental engineer, dated 24 April 2025; and (b) Dr David Robertson, an ecologist, dated 13 May 2025.

39. It also relied upon:

(a) a bundle of documents comprising aerial photographs, photographs taken on the site, and various management plans; and (b) paragraph 62 of the affidavit of Rich, a compliance officer employed by the Council, affirmed on 3 June 2024.

40. Golman and LHB relied upon the expert evidence of:

(a) Louise Collier, a civil and environmental engineer, dated 10 July 2025; and (b) Carl Tippler, an aquatic ecologist, dated 10 July 2025.

41. They also relied upon:

(a) the affidavit of Dr Ali Amin, a structural engineer, sworn on 10 July 2025; (b) two letters from Habitat Innovation Management regarding revegetation and biodiversity on the site in compliance with the consent orders in Class 4 proceedings 2023/40809, both dated 19 August 2025; and (c) an extract from the “Bluebook” and a map from Espade assessing the soil landscapes of Sydney, Wollongong, Port Hacking and Kiama.

42. The parties further relied upon the joint expert reports of:

(a) Dr Martens and Collier, dated 3 August 2025; and (b) Dr Robertson and Tippler, dated 1 August 2025.

Sentencing Principles

43. Section 3A of the Crimes (Sentencing Procedure) Act 1999 (“CSPA”) describes the purposes of sentencing on the offenders as:

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.

44. Subsections 21A(2) and (3) of the CSPA set out aggravating and mitigating factors that the Court must consider. Relevant to the facts of these proceedings they are:

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

…

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

…

(o) the offence was committed for financial gain,

…

The court is not to have additional regard to any such aggravating factor in sentencing if it is an element of the offence.

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

(a) the injury, emotional harm, loss or damage caused by the offence was not substantial,

…

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

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

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

(h) the offender has good prospects of rehabilitation, whether by reason of the offender’s age or otherwise,

(i) the remorse shown by the offender for the offence, but only if—

(i) the offender has provided evidence that he or she has accepted responsibility for his or her actions, and

(ii) the offender has acknowledged any injury, loss or damage caused by his or her actions or made reparation for such injury, loss or damage (or both),

…

(k) a plea of guilty by the offender (as provided by section 22 or Division 1A), …

45. The appropriate sentences for Golman and LHB is to be determined by an instinctive synthesis of all of the relevant objective and subjective circumstances surrounding the commission of the offences (Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 at [35]-[39], [50]-[84] and [136]-[139]).

46. The Council bears the onus of proving beyond reasonable doubt any aggravating factors for the purpose of sentencing (Gore v The Queen [2010] NSWCCA 330; (2010) 208 A Crim R 353 at [26] and [104] and R v Wickham [2004] NSWCCA 193 at [27]). Golman and LHB bear the onus of proving any factor in mitigation on the balance of probabilities (Wickham at [27] and R v Olbrich [1999] HCA 54; (1999) 199 CLR 270 at [27]).

47. Importantly, the sentences to be imposed on Golman and LHB for the commission of the offence must be proportionate to the objective seriousness or gravity and their respective subjective circumstances (Veen v The Queen [1979] HCA 7; (1979) 143 CLR 458 at 490 and Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465 at 472).

Objective Circumstances of the Commission of the Offences

48. The objective gravity of the offences fixes both the upper and lower limits of proportionate punishment. It fixes the upper limit insofar as the sentences 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 and Hoare v The Queen [1989] HCA 33; (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 and R v Nichols (1991) 57 A Crim R 391 at 395).

Nature of the Offences

49. The nature and purpose of the statutory provision that has been contravened and its place in the statutory scheme are illustrative of the objective seriousness of an offence (Bentley v BGP Properties Pty Ltd [2006] NSWLEC 34; (2006) 145 LGERA 234 at [168]-[172]; Plath v Rawson [2009] NSWLEC 178; (2009) 170 LGERA 253 at [49]; and Chief Executive, Office of Environment & Heritage v Orica Pty Ltd; Environment Protection Authority v Orica Pty Ltd [2015] NSWLEC 109 at [59]).

50. The objects of the EPAA are relevantly:

1.3 Objects of Act

The objects of this Act are as follows—

…

(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,

…

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

…

(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,

…

(j) to provide increased opportunity for community participation in environmental planning and assessment.

51. The objectives of Zone C3 Environmental Management contained in the land use table in the WLEP are:

1 Objectives of zone

• To protect, manage and restore areas with special ecological, scientific, cultural or aesthetic values.

• To provide for a limited range of development that does not have an adverse effect on those values.

• To encourage the retention of the remaining evidence of significant historic and social values expressed in existing landscape and land use patterns.

• To minimise the proliferation of buildings and other structures in these sensitive landscape areas.

• To provide for a restricted range of development and land use activities that provide for rural settlement, sustainable agriculture, other types of economic and employment development, recreation and community amenity in identified drinking water catchment areas.

• To protect significant agricultural resources (soil, water and vegetation) in recognition of their value to Wingecarribee’s longer term economic sustainability.

52. The unlawful development undertaken by Golman and LHB offend both the objects of the EPAA and the WLEP. In failing to seek consent for the carrying out of the works, Golman and LHB prevented the assessment of the impacts of those works by the Council, circumvented the public participation process and denied the Council the opportunity to refuse or grant approval for the works. In so doing, the offending conduct subverted the objects of the planning system. It is an integral feature of that system that where necessary approval is obtained and that conditions of consent are complied with (Mosman Municipal Council v Menai Excavations Pty Ltd [2002] NSWLEC 132; (2002) 122 LGERA 89 at [35] and Secretary, Department of Planning and Environment v Boggabri Coal Pty Ltd [2014] NSWLEC 154 at [17]-[19]).

Maximum Penalty

53. The maximum penalty provided for an offence indicates Parliament’s attitude towards the seriousness of that offence. It provides a sentencing yardstick to measure the relevant features of the offences for which Golman and LHB are to be sentenced (Elias v The Queen [2013] HCA 31; (2013) 248 CLR 483 at [27]; Camilleri’s Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 at 697; and Plath v Rawson at [57]). Golman and LHB’s offending must be examined in this light (Harrison v Perdikaris [2015] NSWLEC 99 at [49]).

54. At the time of the commission of the offences the relevant maximum penalty for a Tier 2 offence was:

(a) $2,000,000 for a corporation (s 9.53(1)(a)(i) of the EPAA); and (b) $500,000 for an individual (s 9.53(1)(b)(i) of the EPAA).

Golman and LHB Recklessly Committed the Offences

55. It was agreed between the parties that the states of mind of Golman and LHB in the commission of the offences was that of recklessness. While offences under s 4.2 of the EPAA are offences of strict liability, and intention is not an element of the offence, the state of mind of the defendants in the commission of the offences is nevertheless relevant to the question of penalty (subject to any application of the principle in R v De Simoni [1981] HCA 31; (1981) 147 CLR 383).

Whether the Injury, Emotional Harm, Loss or Damage Caused by the Earthworks Was Substantial (s 21A(2)(g))

56. Much of the hearing concerned the extent of harm, if any, occasioned by the unlawful earthworks. The Council submitted that the commission of the earthworks offences caused harm that was substantial such that it constituted an aggravating factor under s 21A(2)(g) of the CSPA. It relied on the expert hydrology and ecology evidence to establish that the earthworks had displaced soil which then entered and adversely affected a watercourse on the site.

57. The Court finds that while the commission of the earthworks offences caused potential harm, the Council has not established to the requisite standard that this potential harm was substantial.

Hydrology Evidence

58. It was agreed between Dr Martens and Collier that the earthworks altered the ground level within a footprint of 5,300 m2. The critical area of disagreement between Dr Martens and Collier was the volume of sediment that was transported into the watercourses due to the earthworks.

59. Dr Martens inspected the site on 25 November 2024. He used a model known as Revised Universal Soil Loss Equation (“RUSLE”) to predict the long-term average annual soil loss from sheet and rill erosion.

60. Dr Martens then compared the output of the RUSLE model to the Total Suspended Solid load generated from the Model for Urban Stormwater Improvement Conceptualisation (“MUSIC”); a model that measures the changes in long term average pollutant loads in Mittagong Creek.

61. Dr Martens calculated that there was a cumulative soil loss from the area the subject of the earthworks to Mittagong Creek via the dam on the site during the charge period of 134.8 tonnes, or 89.9 m3. Dr Martens determined that the composition of the soil that entered the Mittagong Creek during the charge period was 10% sand, 45% clay and 45% silt.

62. Additionally, he estimated that the soil displacement to the watercourse may have been as high as 223.7 tonnes due to the significantly higher than average rainfall conditions during the charge period. Dr Martens opined that this would have increased runoff volumes and sediment loads above average annual conditions.

63. Collier agreed that the RUSLE approach was more appropriate than MUSIC for estimating localised soil loss volumes. However, she emphasised that the two models were not directly compatible. Critically, in Collier’s view, MUSIC modelling does not calculate erosion but is used to determine impact or harm (T68:48-50).

64. Collier’s expert opinion was therefore premised upon MUSIC models representing catchment conditions prior to and during the charge period. She estimated that there was an increase of 1.5 tonnes of sediment only over the baseline during the charge period.

65. The evidence from both experts makes it clear that at least some of the soil from the earthworks entered Mittagong Creek, and moreover, that the presence of soil in the watercourse had the potential to harm the waterways and aquatic life. As Collier stated during cross-examination (T66:8-67:26):

HEMMINGS: … Now, I’m just endeavouring to understand, I’ve got CL soils that the surface within area A gets disturbed by the carrying out of the excavation that we’ve seen in some photographs. If it rains, there are no erosion and sedimentation controls in place.

WITNESS COLLIER: Not that I’m aware of.

HEMMINGS: And so soil will make its way from the excavated area into the creek system.

WITNESS COLLIER: Into the dam.

HEMMINGS: The dam is part of the creek system, is it not?

WITNESS COLLIER: Yes. Yeah, it’s an online system.

HEMMINGS: And the very purpose of you designing a sedimentation and erosion control system would be to prevent that occurring?

WITNESS COLLIER: Yes.

HEMMINGS: And you prevent that occurring because of a number of reasons. It’s mandated by the policy documents?

WITNESS COLLIER: Yes.

HEMMINGS: Secondly, because it can harm the waterway itself by the introduction of the soil in it?

WITNESS COLLIER: Yes.

HEMMINGS: And thirdly, because it can harm aquatic life that may or may not be in the creek system?

WITNESS COLLIER: Yes.

HEMMINGS: And you accept, do you not, that there was the potential for harm to the creek system because there were no sedimentation and erosion control measures in place to stop it?

WITNESS COLLIER: I agree with you that there is the potential. Yes.

HEMMINGS: And once that material makes its way into that part of the creek system, which is dam 4, there is then the potential for the fine materials, the silts and the clays, to make their way downstream?

WITNESS COLLIER: Yes, as we discussed earlier.

HEMMINGS: And for the same reason, the purpose of the design of the sedimentation and erosion control facilities is to prevent the downstream migration of those silts and clays?

WITNESS COLLIER: Yes.

HEMMINGS: There was nothing in place to prevent that downstream migration?

WITNESS COLLIER: I think I’ve agreed with you, Mr Hemmings.

HEMMINGS: And so it had the potential to cause harm downstream of the weir wall of dam 4?

WITNESS COLLIER: For the period that there was exposure, yes.

HEMMINGS: There is the possibility, even in a properly designed sedimentation and erosion control system, that there might be discharge into the waterways?

WITNESS COLLIER: Yes.

66. However, it cannot be said on this evidence that the harm that this soil caused was substantial. This is because, in my view, the volume of soil that entered the watercourse has not been established beyond reasonable doubt. It is therefore difficult to determine the extent of the harm that the displaced soil caused.

67. This conclusion is reinforced by the ecological evidence that demonstrates that the harm caused by the displaced soil rose no higher than potential harm.

Ecology Evidence

68. The ecological experts agreed that it was not possible to quantify the impacts of the earthworks on the aquatic life of Mittagong Creek given that there was no baseline data for the ecology within the Creek.

69. The experts also agreed that historical land use has caused degradation to the ecology of the Mittagong Creek and that any impacts to the Creek from the earthworks would have resulted in a cumulative impact to an otherwise impacted watercourse. For example, the upper part of the catchment had been partially cleared with only 40% of the original forest remaining upstream of the unauthorised earthworks.

70. Dr Robertson said the following in cross-examination (T80:14-34):

EASTMAN: …you agree, don’t you, Dr Robertson, that, having regard to the data collected in June 2025 on both upstream and downstream, is that at least at that point, there’s no evidence of any ongoing harm from the subject works?

WITNESS ROBERTSON: Well, I mean, these are taken as single points in time, well after the event, and they don’t show a pristine stream. And as I agreed with you, it’s not a pristine stream for a number of different reasons. You can’t take a single point in time like that without reference to sort of baseline data and say that it’s not indicative of ongoing impairment of the environment. I can’t take it one way or the other to show that.

EASTMAN: But you don’t point to any other factor that suggests that there is ongoing harm from June 2025?

WITNESS ROBERTSON: Well, I mean, as you read to me, there’s below the dam, the scores are lower. And then as you get further away and further downstream from the dam, they gradually recover. So there’s something that indicates that there is an impairment immediately below the dam, and I’m not going to tell the court that that’s attributable directly to the event that we’re here to talk about. I’m saying it’s almost - you can’t sort of sort it out or sift it out from any of the other environmental influences that have taken place.

71. Dr Robertson based his opinions on the soil load calculations provided by Dr Martens and his field inspection of the site on 1 October 2024. Dr Robertson opined on the harms that “could be experienced” by Mittagong Creek, which included:

(a) a reduction in stream bed diversity due to sediment settlement; (b) sediment smothering of instream invertebrates and the coating of habitats; (c) the clogging of gills of species found in “similar stream habitats”; (d) abrasions to macroinvertebrates caused by suspended sediments; (e) algal and bacterial blooms that can strip oxygen from the water when dead; and (f) decreased species diversity.

72. Tippler agreed that the potential harms identified by Dr Robertson in his report were “potential harm pathways” (T91:16-40). Tippler conducted site inspections on 19 and 25 June 2025, where he collected macroinvertebrate and soil and sediment samples.

73. Tippler took three soil samples from the riparian bank further along from the area the subject of the earthworks. Tippler determined that the composition of dam sediment was 54% sand and 44% fines. Tippler concluded that there was no significant difference in the composition of riparian soil and sediment, thereby indicating a high likelihood that sediment mobilised from the earthworks had fallen out of suspension and had settled in the dam.

74. A photograph of a reddish section of water downstream purportedly evidencing sediment smothering of instream invertebrates and the coating of habitats taken on 1 October 2024 was, according to Tippler, evidence of iron flocculation, rather than fine sediment, which was caused by the liberation of iron from the earthworks that had oxidised in Mittagong Creek.

75. Additionally, the results of the macroinvertebrate sampling that Tippler undertook showed that the percentage of aquatic insects in fact increased downstream. Tippler therefore concluded that “the presence and persistence of these macroinvertebrate taxa, which are widely accepted as sensitive to disturbance and pollution, indicates an unlikeliness that significant harm has occurred to Mittagong Creek.”

No Substantial Harm Occurred

76. In light of the hydrological and ecological evidence, a finding of substantial harm to the watercourses occasioned by the earthworks is untenable. As both experts affirmed during their cross-examination, there are difficulties in drawing causal connections between the earthworks, the volume of soil that migrated into the watercourses and the harm that this caused (T80:40-41 and 85:10-13).

Potential Environmental Harm was Caused by the Commission of the Offences

77. Golman and LHB contended that where s 241 of the Protection of the Environment Operations Act 1997 (“POEOA”) does not apply, the Court’s consideration of the extent of environmental harm does not arise. This submission should be rejected.

78. The concept of harm in the context of environmental offences is broad. In Environment Protection Authority v Waste Recycling and Processing Corporation [2006] NSWLEC 419; (2006) 148 LGERA 299 the Court stated that harm includes both actual harm and potential harm, both direct and indirect (at [145]-[149]).

79. While it cannot be established that the harm occasioned by the earthworks was “substantial” within the meaning of the CSPA, there is ample evidence that there was likely environmental harm to be caused by the earthworks. Put another way, there is a real and not remote chance or possibility of the type of harm to the aquatic ecosystem identified in the expert evidence of Dr Robertson and Tippler occurring.

80. The Council sought to rely on two further types of harm, first, that the commission of the offences impacted the integrity of the planning system and second, that the offences caused harm to the community in that the unlawful development was carried out without any conditions or constraints that form part of the consent given by the Council.

81. Damage to the regulatory system is not a relevant harm to the environment as that concept is understood (see ACE Demolition & Excavation Pty Ltd v Environment Protection Authority [2024] NSWCCA 4; (2024) 260 LGERA 358 at [65] and [69] applied in Georges River Council v RNA Building Solutions Pty Ltd; Georges River Council v El Saadi [2024] NSWLEC 139; (2024) 262 LGERA 190 at [52]).

82. There was, moreover, no evidence that the commission of the offences caused, or were likely to cause, harm to the amenity of those living in close proximity to the site.

83. Finally, I take into account that the works the subject of the dwelling house charge were carried out between approved and constructed structures, and the internal alterations carried out to the stables were depicted on approved plans that existed at the time of purchase.

Foreseeability of Harm

84. An offence is objectively more serious if the risk of harm occasioned by its commission was foreseeable (EPA at [173]).

85. The Council submitted that the harm occasioned by the unlawful earthworks was plainly foreseeable.

86. In response, Golman and LHB argued that the Council had failed to distinguish between harm caused by the storm event of March 2022, and the earthworks that followed the subject of the charges. They contended that the retaining walls on the northern edge of the dam collapsed because of the storm event thereby necessitating the earthworks. Golman and LHB cited the following observation made by Dr Amin to support this conclusion:

The retaining wall measures approximately 35 metres long and 1.4 metres tall. I have been informed that the original timber retaining wall had collapsed and was subsequently replaced with a new concrete retaining wall.

87. They also suggested that the original timber retaining wall collapsed under the weight of deposited soil from the storm event.

88. It is possible that the unauthorised earthworks were necessitated by the damage caused by the storm event. However, the only evidence before the Court to support this conclusion was the hearsay evidence of Dr Amin, upon which I place very limited weight. The Court was not furnished with any other evidence such as photographs of the site prior to the commencement of the earthworks to provide some justification for the commencement of those impugned works.

89. Ultimately, therefore, and as the expert evidence makes clear, the potential for harm resulting from the earthworks was foreseeable.

Practical Measures to Prevent Harm

90. Golman and LHB submitted that their co-operation with the Council constituted practical measures to prevent the harm.

91. Conduct that post-dates harm is not preventative. Golman and LHB, like any landowner undertaking development that requires consent, should have obtained Council approval prior to commencing the works to enable assessment of the proposed earthworks by the Council and once granted, should have carried out the development in conformity with the conditions of that consent. This would have ensured that any environmental damage caused by carrying out the development was minimised.

Control Over the Causes of the Commission of the Offences

92. Golman and LHB had control in the organisation and oversight of all works.

93. While Golman and LHB submitted that the earthworks could not be divorced from the damage caused by the March 2022 storm event, the fact remains that approval could, and should, have been obtained for these works.

No Financial Gain (s 21A(2)(o))

94. There was no evidence to establish that the offences were committed for financial gain so as to amount to an aggravating factor under s 21A(2)(o) of the CSPA.

Conclusion on the Objective Seriousness of the Offences

95. Having regard to the fact that Golman and LHB committed the offences recklessly and that the commission of the earthworks offences occasioned potential environmental harm, I am satisfied that the commission of the earthworks offences are moderately objectively serious.

96. In respect of the offending conduct of LHB, the Court notes that LHB was a passive landowner in respect of the earthworks offence. As it submitted, there was no evidence that it engaged contractors, gave instructions or paid invoices in respect of the relevant works. This diminishes its level of criminality (by analogy see Holroyd City Council v El-Khouri [2008] NSWLEC 83, where a wife was found guilty of an offence in respect of unlawful development carried out by her husband. The Court held that as a consequence her level of criminality was “very low”: at [21] per Jagot J).

97. In the absence of any environmental harm occasioned by the commission of the dwelling house offence and the stables offence, I find these to be at the lower end of the scale of objective seriousness, with the dwelling house offence to be objectively more serious than the stables offence given the extensive nature of the works to that structure.

Subjective Circumstances of Golman and LHB

98. A proportionate sentence requires the Court to consider any mitigating factors that are personal to Golman and LHB (s 21A(3) of the CSPA).

No Substantial Harm Caused (s 21A(3)(a))

99. As found above, there was no evidence that the harm caused by the offending conduct was substantial for the purpose of s 21A(3)(a) of the CSPA. Having said this, the harm occasioned by the commission of the earthworks offences was not negligible.

No Previous Convictions (s 21A(3)(e))

100. There was no evidence that either LHB or Golman have any prior convictions.

Remorse Shown By Golman and LHB (s 21A(3)(i))

101. Remorse shown by an offender is a mitigating factor only if the offender has provided evidence that they have accepted responsibility for their actions and that the offender has acknowledged any injury, loss or damage caused by their actions (s 21A(3)(i) of the CSPA).

102. In Chief Executive, Office of Environment & Heritage v Ausgrid [2013] NSWLEC 51; (2013) 199 LGERA 1, the Court outline four forms of action that would demonstrate genuine remorse (quoting from EPA v Waste Recycling and Processing Corp**oration) (at [80]):

(a) first, the speed and efficiency of action rectifying the harm caused or likely to continue to be caused by the commission of the offence (at [204]);

(b) second, the voluntary reporting of the commission of the offence and any consequential environmental harm to the authorities (at [210]);

(c) third, taking action to address the cause of the offence (at [212]); and

(d) fourth, the personal appearance of corporate executives in court to give personal evidence of the defendant's regret and a plan of action to avoid repetition of the offence (at [214]).

103. In their submissions, Golman and LHB relied upon the following acts undertaken by them to demonstrate remorse:

(a) the voluntary reporting of the commission of the offence; (b) the carrying out of the remediation works; (c) the attempts to regularise the unlawful works; (d) the avoidance of the use or occupation of the stables until the works were regularised; (e) the lodging of the BIC application for the dwelling house; and (f) the lodging of the DA for the use of the dwelling house.

104. I place only limited weight on these acts and I do not find that Golman and LHB have established that they are genuinely remorseful for their actions.

105. First, the carrying out of remediation works in relation to conduct on the site that is not the subject of these proceedings does not constitute contrition for the commission of the present offences. Section 21A(3)(i) of the CSPA makes clear that it is “remorse shown by the offender for the offence” (emphasis added).

106. Second, while the attempts made by Golman and LHB to regularise the unlawful works was an effort to mitigate the harm occasioned to the regulatory system, this could not, however, rectify the likely harm caused to the environment by the commission of the offences.

107. Third, there was evidence that the stables had been used. Photographs taken inside the stables showed extensive interior furnishings. I therefore infer that the stables have been in use.

108. Fourth, Golman and LHB argued that they had voluntarily reported the commission of the offences thereby amounting to an acceptance by them of their criminality. However, the notification stated that they “have spent a quarter of a million dollars trying to retain the land and stabilise the dam”, which only constitutes a partial notification of the broader offending conduct. There is no reference, for example, to the unlawful works in relation to the dwelling house or the stables.

109. Fifth, I take into account the fact that Golman and LHB ignored the Council issued orders to stop the unlawful works.

110. Sixth, the fact that Golman was present in Court during the sentencing hearing is not enough to amount to mitigating remorse.

111. In the absence of further evidence of remorse, Golman and LHB have failed, in my opinion, to demonstrate remorse on the balance of probabilities.

Guilty Pleas (s 21A(3)(k))

112. An early plea of guilty has utilitarian value to the criminal justice system and entitles an offender to a maximum discount of 25% (R v Thomson [2000] NSWCCA 309; (2000) 49 NSWLR 383 at [152]-[155]). What is regarded as an early plea will vary in the circumstances of the case (Thomson at [160(iii)]).

113. In the absence of any submission to the contrary from the Council, I find that Golman and LHB entered pleas of guilty at the earliest available opportunity and that they are, therefore, entitled to the full 25% discount for the utilitarian value of their pleas.

Good Character, Likelihood of Re-Offending and Prospects of Rehabilitation (s 21A(3)(f)-(h))

114. Golman and LHB in their submissions relied upon the absence of prior convictions, the reporting of the unlawful conduct, the remediation works that they had undertaken to the site, and the attempts to regularise the unlawful development, to argue that they were of good character, were unlikely to re-offend, and had good prospects of rehabilitation for the purposes of mitigation under s 21A(3)(f)-(h) of the CSPA.

115. Tippler deposed to the works undertaken by Golman and LHB in accordance with the Vegetation and Remediation Management Plan comprising the (together, “the remediation works”):

(a) installation of 60 artificial nest boxes; (b) revegetation of six hectares of critically endangered ecological communities (“EECs”); (c) undertaking of infill revegetation and weed management across a further eight hectares of EECs; and (d) planting of over 20,000 native canopy and understory seedlings.

116. The cost of the remediation works is estimated to be more than $345,000.

117. But the remediation works were mandated by consent orders made by this Court in separate Class 4 proceedings. The works were undertaken to comply with these orders. I therefore place little to no weight on them for present purposes.

118. The remediation works were, moreover, occasioned by additional unlawful conduct that LHB had engaged in at the site. This combined with a pattern of ignoring demands by the council to cease the unlawful works and a lack of demonstrated contrition and remorse means that I am not wholly satisfied that Golman and LHB have demonstrated that they are unlikely to re-offend and I cannot find that their prospects of rehabilitation are strong.

119. Apart from their offending, however, there is nothing to suggest that either defendant is not of good character.

Conclusion on Subjective Considerations

120. The subjective considerations of Golman and LHB operate to mitigate the penalty to be imposed by the Court.

General and Specific Deterrence

121. The Court must impose a sentence that achieves the purposes of denouncing the conduct the subject of the offences and makes Golman and LHB accountable for their actions. One of the purposes of imposing a sentence is to prevent crime by deterring the offender and other persons from committing similar offences (s 3A(b) of the CSPA). In this sense, the Court is required to consider both specific and general deterrence (Walden v Hensler [1987] HCA 54; (1987) 163 CLR 561 at 569 per Brennan J).

122. General deterrence is essential “to ensure that the penalty imposed acts to deter those who might engage in similar activities from committing like offences” (Mouawad v The Hills Shire Council [2013] NSWLEC 165; (2013) 199 LGERA 28 at [188]).

123. Golman and LHB conceded that both general and specific deterrence were appropriate in this case (T121:39-40). The Court agrees. The offending conduct defied the legislative approval process. With respect to the commission of the earthworks offences, these had the potential to cause environmental harm. General deterrence should therefore be reflected in the penalty to be imposed to create a clear disincentive to other property owners who contemplate undertaking development on their land absent, or contrary to, development consent.

124. In addition, specific deterrence is needed having regard to the recklessness with which Golman and LHB committed the offences, their disregard for the various Council issued stop work orders and warnings that consent was needed for the impugned works.

Prosecution in the Local Court

125. While the charges could have been prosecuted in the Local Court (Harris v Harrison [2014] NSWCCA 84; (2014) 86 NSWLR 422 at [98]), this provides no basis for the Court to reduce the overall penalty. This is especially so when the offending was objectively serious and the evidence relied upon by the parties was technical and complex.

Even-Handedness

126. The task of a sentencing court is to seek even-handedness in the imposition of a sentence (R v Oliver (1980) 7 A Crim R 174 at 177 and R v Visconti [1982] 2 NSWLR 104 at 106). However, care must be taken in achieving consistency. There is difficulty comparing the penalty in one case with that in another because of the wide divergence of facts and circumstances in each case (Axer Pty Ltd v Environment Protection Authority (1993) 113 LGERA 357 at 365). The sentence imposed in a single case does not demonstrate the limits of a sentencing court’s discretion (Cabonne Shire Council v Environment Protection Authority [2001] NSWCCA 280; (2001) 115 LGERA 304 at [35] and Environment Protection Authority v Barnes [2006] NSWCCA 246 at [79]).

127. The Council provided no comparable cases. Golman and LHB referred the Court to the authorities set out in Secretary, Department of Planning and Environment v Leda Manorstead Pty Ltd (No 7) [2021] NSWLEC 26 (at [592]-[600]):

592 In Burwood Council v Erector Group Pty Ltd; Burwood Council v Liverpool Developing Pty Ltd [2017] NSWLEC 20 the Chief Judge fined each defendant a total sum of $80,000 and ordered the defendants to pay the council’s costs in the sum of $14,000. The orders (save for the order as to costs) were set aside in Erector Group Pty Ltd v Burwood Council; Liverpool Developing Pty Ltd v Burwood Council [2018] NSWCCA 56; (2018) 232 LGERA 304 and each defendant was fined a total sum of $35,000. The offences arose after the defendants undertook excavation work in breach of a development consent in contravention of ss 76A(1), 81A(2) and 125(1) of the EPAA. The defendants pleaded guilty to all charges.

593 The Chief Judge found that the offences were in the low range of objective seriousness. The Chief Judge held that there was a sufficient causal connection between the offences and damage to the adjoining buildings for that damage to be considered as an aggravating factor. On appeal, the Chief Justice held that the necessary causal connection between the offence and the damage to the adjoining buildings had not been established beyond reasonable doubt and ordered that the monetary penalties be reduced accordingly. The Chief Justice otherwise agreed with the Chief Judge’s assessment of the objective seriousness of the offences and agreed that although the defendants were unlikely to reoffend, that there was a need for specific deterrence. The Chief Justice also agreed that the defendants were genuinely remorseful.

594 In Secretary, Department of Planning and Environment v Charbon Coal Pty Ltd [2016] NSWLEC 106 the defendant was fined $175,000 and ordered to pay the prosecutor’s costs of $55,000. The defendant had built a haul road in a location other than the approved location in contravention of ss 75D(2) and 125(1) of the EPAA. The defendant had pleaded guilty to the charges at the earliest available opportunity. The construction of the haul road had caused harm to an Aboriginal heritage site and resulted in the unlawful clearing of vegetation. The Court held that the offence was in the low range of moderate objective seriousness. There was no significant ecological impact but the harm from a cultural and social perspective was considerable. The offence was committed negligently, thereby increasing its objective seriousness. The Court had regard to subjective considerations, including that the harm was not so insubstantial to be a mitigating factor, that the defendant had no prior convictions but did have a prior PIN, that the defendant was of good corporate character, that the defendant had demonstrated remorse and contrition, and that the defendant had pleaded guilty at the earliest available opportunity. There was a need for specific deterrence because the defendant’s parent company continued to operate other mines.

595 The Court in Secretary, Department of Planning and Environment v Boggabri Coal Pty Ltd [2014] NSWLEC 154 fined the defendant $82,500 and ordered it to pay the prosecutor’s agreed costs of $38,000. The defendant had stockpiled material on land outside the project boundary for approved construction works in contravention of ss 125 and 76A(1) of the EPAA. The defendant had pleaded guilty at the earliest available opportunity. There was no evidence as to harm. The Chief Judge found that the offence was of low objective seriousness. The offence was not committed negligently or recklessly. The offence was not committed for financial gain. The Chief Judge considered subjective factors including the defendant’s early guilty plea, the fact that the defendant had no prior convictions, the defendant’s expression of contrition and remorse, the defendant’s good corporate character, and the fact that the defendant had fully cooperated with the prosecutor. There was no need for specific deterrence.

596 The decision in Director-General Department of Planning & Infrastructure v Integra Coal Operations Pty Ltd [2012] NSWLEC 255; (2012) 192 LGERA 281 concerned the defendant’s breach of a height limitation under its project approval in contravention of ss 75D and 125(1) of the EPAA. The defendant pleaded guilty to the offence and was fined $84,000 and ordered to pay the prosecutor’s costs of $38,000. The offence was of low to medium objective seriousness. The offence resulted from the defendant’s systemic failures. The Court had regard to various subjective considerations including that the offence was not deliberate, that the defendant pleaded guilty early, that the defendant had no prior convictions but that three PINs had been issued against it, that the defendant had cooperated with the prosecutor and had immediately ceased operations when it was informed of the contravention, that the defendant was of good corporate character, and steps had been taken by the defendant to ensure that it did not re-offend.

597 The defendant was fined the sum of $70,000 in Minister for Planning v Hunter Quarries Pty Ltd [2010] NSWLEC 246 and ordered to pay agreed costs in the amount of $23,000. The defendant operated a hard rock quarry and breached a condition of a project approval that it would not produce or transport more than 500,000 tonnes of material annually in contravention of ss 76A and 125 of the EPAA. The defendant pleaded guilty to the offence at the earliest available opportunity. The offence was of low to medium objective seriousness. The offence was not deliberate, but was committed carelessly as it occurred as a result of the systemic failure of the defendant to adequately monitor its production and transportation records. No harm resulted from the contravention. The offence was, however, committed in the hope of a future commercial benefit. The Court had regard to the defendant’s early guilty plea, an absence of prior convictions, that the defendant was of good corporate character, that it had demonstrated remorse and contrition, and that it had cooperated with the prosecutor including by agreement to a statement of facts and the payment of the prosecutor’s costs as agreed. It was not necessary to have regard to specific deterrence given the defendant’s remorse and the measures taken by it to ensure that it did not reoffend.

598 Similarly, the defendant was fined $70,000 and ordered to pay costs in the agreed amount of $55,000 in Minister for Planning v Moolarben Coal Mines Pty Ltd [2010] NSWLEC 147; (2010) 175 LGERA 93. The defendant cleared 4.1 ha of native vegetation resulting in the loss of 1.3 ha of endangered ecological habitat to satisfy a contractual obligation to construct a boundary fence. The clearing breached a condition of the defendant’s project approval and thereby contravened ss 75D and 125 of the EPAA.

599 The defendant pleaded guilty at the earliest available opportunity. The offence was of low to medium objective seriousness. The offence compromised the integrity of the planning system and caused actual, albeit minimal, harm to the environment. The defendant thought it was obligated contractually under the Mining Act 1992 to build the boundary fence. The Department of Planning had, however, communicated to the defendant that it required consent for the clearing work. The defendant continued the clearing works even after this communication. It was relevant that the defendant was put on notice that the clearing works may have been unlawful and that the defendant was sufficiently well resourced to secure legal advice regarding the activity. The harm caused was foreseeable and the defendant had complete control over the causes of harm to the environment. The Court had regard to subjective considerations that included the defendant’s early plea of guilty, the defendant’s lack of prior convictions, the defendant’s good corporate character and that it was unlikely to re-offend, the defendant’s demonstration of contrition and remorse and steps taken by it to avoid re-offending (making modifications to its operations, retaining experts to prepare a detailed impact assessment, and volunteering substantial offsets), and the defendant’s co-operation with the prosecutor, including by agreeing to a statement of facts.

600 Finally, in Minister for Planning v Coalpac Pty Ltd [2008] NSWLEC 271, Coalpac Pty Ltd, the defendant carried out development under a project approval contrary to a condition that it was permitted to produce up to 350,000 tonnes of saleable coal annually. The defendant became aware that it would exceed this limit and made a formal application to increase the amount. The defendant maintained the excess production rates pending Ministerial approval and exceeded its limit by 80%. The Minister eventually approved the proposed increase. The defendant was fined $200,000 and ordered to pay the prosecutor’s costs in the amount of $55,000. The Court considered that the limit was market driven and that environmental assessments had been undertaken only with respect to the production of 350,000 tonnes of saleable coal. The only environmental impact of the offence was the lost opportunity for an environmental assessment to be completed before the increased production was carried out. There was no other harm to the environment. The offence was committed intentionally and for financial gain. The offence compromised the integrity of the planning system because it was committed intentionally over a significant period of time. The Court had regard to subjective considerations including the defendant’s early plea of guilty, that the defendant had no prior convictions, that the defendant had demonstrated remorse and condition, that the defendant had assisted the prosecutor, and that it had good prospects of rehabilitation. Specific deterrence was necessary given the significant profit obtained from the breach.

128. In addition to those cases, the Court has also considered the following authority in respect of unlawful development contrary to s 4.2 of the EPAA, namely, RNA B**uilding Solutions. In that case both the corporate defendant and its director were each fined a total of $65,625 for aiding, abetting, counselling or procuring the destruction and rebuilding of a dwelling house otherwise than in accordance with consent. Each had pleaded guilty to three offences relating to the demolition of an existing house, the excavation of land for a new house, and the erection of the new house. There was no actual or likely harm to the environment. The defendants were entitled to a full discount for their early pleas, had demonstrated remorse, had no prior convictions, and were of good character. The penalty imposed reflected a need for general deterrence but not specific deterrence in light of the remorse shown by the defendants and their unlikelihood of reoffending.

129. As conceded by the parties, none of the above cases are truly comparable to the facts of the present proceedings. Nevertheless, they provide some assistance to the Court in determining the appropriate sentences to be imposed.

Totality

130. The totality principle is a relevant consideration when determining an aggregate penalty in sentencing for multiple offences as with the present proceedings (Mill v The Queen at 62 to 63; Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610 at [40]; Johnson v The Queen [2004] HCA 15; (2004) 78 ALJR 616 at [18]; and Water NSW v Barlow [2019] NSWLEC 30; (2019) 244 LGERA 1 at [111]-[112]). The task of the Court is to ensure that the overall sentence is neither too harsh nor too lenient.

131. Care must nevertheless be taken “to ensure that any adjustment of individual sentences does not cause the aggregate sentence not to reflect the total criminality of the offender’s conduct or the sentence for any individual offence to become disproportionate to the objective gravity of that offence” (Rawson at [222]). The application of the totality principle must not undermine public confidence in the administration of justice by any perception that “what is in effect being offered is some kind of discount for multiple offending” (R v MAK; R v MSK [2006] NSWCCA 381; (2006) 167 A Crim R 159 at [18]).

132. The Council submitted that the totality principle did not apply with respect to the three charges against Golman. It contended that the dwelling house charge was entirely separate to the unlawful excavation works and the internal construction to the stables.

133. Golman contended that the totality principle applies because the three charges were all offences against the same provision, occurred during the same charge period, and occurred on the same site.

134. The offences arise out of related conduct, namely, that Golman was reckless as to the carrying out of the developments without proper consent on the site and the offending behaviour occurred in the same charge period on the same site. This warrants the adjustment of the overall sentence so that it is just and appropriate (Mill v The Queen at [8]).

Appropriate Sentence

135. Synthesising the objective seriousness of the commission of the offences and the mitigating subjective factors of Golman and LHB, together with the purposes of sentencing, the penalties imposed in comparable cases, and the additional orders to be imposed, I find that the imposition of a monetary penalty is warranted for each offence as follows:

(a) in respect of the earthworks charge against Golman, a fine of $200,000.00; (b) in respect of the earthworks charge against LHB, a fine of $200,000.00; (c) in respect of the stables charge against Golman, a fine of $50,000.00; and (d) in respect of the dwelling house charge against Golman, a fine of $100,000.00.

136. These amounts must be discounted by 25% for the utilitarian value of the early pleas of guilty by the defendants:

(a) in respect of the earthworks charge against Golman, a fine of $150,000.00; (b) in respect of the earthworks charge against LHB, a fine of $150,000.00; (c) in respect of the stables charge against Golman, a fine of $37,500.00; and (d) in respect of the dwelling house charge against Golman, a fine of $75,000.00.

137. After the application of the totality principle, the penalty for each of the offences committed by Golman is further adjusted to:

(a) in respect of the stables charge against Golman, a fine of $10,000.00; and (b) in respect of the dwelling house charge against Golman, a fine of $50,000.00.

Publication Order

138. The Council sought a publication order pursuant to s 250(1)(a) of the POEOA, which applies to these proceedings by operation of s 9.56(2A) of the EPAA.

139. In Environment Protection Authority v Crown in the Right of New South Wales [2019] NSWLEC 178 Duggan J usefully set out the principles to be derived from the authorities in determining whether or not to make a publication order, which I respectfully adopt and apply without repetition (at [84]).

140. Given that the offending conduct demands general deterrence as an element of the penalty to be imposed, I find that a publication order should be made.

Costs

141. The parties did not reach an agreement as to costs. Pursuant to s 257B of the Criminal Procedure Act 1986, Golman and LHB are therefore liable to pay the professional costs of the Council as agreed or as assessed pursuant to s 257G of that Act.

142. Golman and LHB submitted that these costs should be reduced by 25% to reflect the withdrawal by the Council of two charges.

143. I decline to make such an order in the absence of any evidence of, among other things:

(a) the nature of the two charges that were withdrawn in order to assess their relevance to any apportionment task; (b) the costs thrown away by the withdrawal of the charges; (c) the quantum of the Council’s costs; or (d) the proportion of costs the Council incurred in respect of each charge.

144. Ultimately, in my view, this will be a matter for the cost assessor if the parties cannot agree upon an amount of costs in respect of which Golman and LHB are liable.

Application of Penalties

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

694 Application of penalties

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

(a) to be paid to the council, and

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

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

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

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

Orders

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

In proceedings 2024/236628 **(**the earthworks charge)

1. Lake House Bowral Pty Ltd is convicted of the offence against s 9.51 of the Environmental Planning and Assessment Act 1979 as charged;
2. Lake House Bowral Pty Ltd is fined the sum of $150,000.00;

In proceedings 2024/236565 (the earthworks charge)

3. Serge Golman is convicted of the offence against s 9.51 of the Environmental Planning and Assessment Act 1979 as charged;
4. Serge Golman is fined the sum of $150,000.00;

In proceedings 2024/236564 **(**the dwelling house charge)

5. Serge Golman is convicted of the offence against s 9.51 of the Environmental Planning and Assessment Act 1979 as charged;
6. Serge Golman is fined the sum of $50,000.00;

In proceedings 2024/236563 **(**the stables charge)

7. Serge Golman is convicted of the offence against s 9.51 of the Environmental Planning and Assessment Act 1979 as charged;
8. Serge Golman is fined the sum of $10,000.00;

In proceedings 2024/236628, 2024/236565, 2024/236564 and 2024/236563

9. an order pursuant to s 9.56(2A) of the Environmental Planning and Assessment Act 1979 that Lake House Bowral Pty Ltd and Serge Golman are, at their own expense, to:

(a) within 28 days cause a notice of a minimum size of 139 mm x 129 mm to be published within the first 12 pages of The Sydney Morning Herald, with the text of such notice to be as set out in accordance with annexure ‘A’ to these orders; and (b) by no later than 22 January 2026, cause a notice of a minimum size of a quarter of a page to be published within the first 12 pages of the next available edition of the Southern Highlands News with the text of such notice to be as set out in accordance with annexure ‘A’ to the Judgment;

10. within seven days of the date of publication of the notices referred to in order 9, the Defendants must provide the Prosecutor with a complete copy of the notices as published;
11. pursuant to s 257B of the Criminal Procedure Act 1986, both Serge Golman and Lake House Bowral Pty Ltd, respectively, are to pay the costs of Wingecarribee Shire Council as agreed or assessed or as may be determined under s 257G of the Criminal Procedure Act 1986; and
12. both Serge Golman and Lake House Bowral Pty Ltd are to pay their respective monetary penalties as ordered by the Court above in orders 2, 4, 6 and 8, to the Registrar of this Court, who is to pay such penalty when recovered to Wingecarribee Shire Council pursuant to s 694(1) of the Local Government Act 1993.

Annexure A – Terms of Publication Notice

| Serge Golman is convicted and fined for the commission of three offences**.** Lake House Bowral Pty Ltd is convicted and fined for the commission of an offence**.** All charges are in relation to unlawful development at Kimberle****y Drive, Bowral Serge Golman, in his personal capacity, together with Lake House Bowral Pty Ltd, as the land owner, were each convicted and fined in relation to three offences related to carrying out development not in accordance with any development consent or approval at 27 Kimberley Drive Bowral, NSW (site) following prosecution action bought by Wingecarribee Shire Council (Council). Between April 2022 and March 2023, Lake House Bowral Pty Ltd, by its agent Serge Golman, and Serge Golman, procured the services of third parties to carry out unlawful physical works on the Site. These involved: In terms of the dwelling house on the site the: (a) construction of an extension to the rear of the main dwelling comprising a one storey structure; (b) excavation to the rear of the main dwelling for the purpose of constructing a retaining wall; (c) construction of a retaining wall; and (d) construction of an awning to the front of the residence. In terms of farming stables on the site, carried out construction works that involved internal alteration works to the building to construct: (a) a kitchen; (b) a dining area; (c) a laundry; (d) a living room; (e) two bedrooms; and (f) three bathrooms. In terms of the excavation of the site, carried out unauthorised earthworks, including excavation (including the removal of around 5,300 m2 of forest and underlying soil) and the imposition of fill. On 29 October 2025, the Land and Environment Court of New South Wales convicted Lake House Bowral Pty Ltd of the one offence, and Serge Golman of the three offences, listed above and ordered that: 1. Serge Golman pay a money penalty of $210,000.00; 2. Lake House Bowral Pty Ltd pay a money penalty of $150,000.00; 3. Serge Golman and Lake House Bowral Pty Ltd publish this notice at their own expense; and 4. Serge Golman and Lake House Bowral Pty Ltd pay the Council’s costs of the proceedings. The Court's judgment may be accessed at [insert URL for judgment on Caselaw NSW]. |

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Amendments

12 January 2026

Amendments made to Orders 9(b) and 10 in accordance with Consent Orders made by Pepper J dated 17 December 2025.