Wingecarribee Shire Council v O'Shanassy

s v The Queen [2010] HCA 45; (2010) 242 CLR 520 Hurstville City Council v Naumcevski [2011] NSWLEC 226 Ku-ring-gai Council v Abroon [2011] NSWLEC 1 Lane Cove Council v Wu [2011] NSWLEC 43 Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 Mosman Municipal Council v Menai Excavations Pty Ltd [2002] NSWLEC 132; (2002) 122 LGERA 89 Muldrock v R [2011] HCA 39; (2011) 244 CLR 120 North Sydney Council v Perini (No 2) [2013] NSWLEC 91 Pittwater Council v Scahill [2009] NSWLEC 12; (2009) 165 LGERA 289 Plath v Hunter Valley Property Management Pty Ltd [2010] NSWLEC 264 Plath v Rawson [2009] NSWLEC 178; (2009) 170 LGERA 253 Port Macquarie-Hastings Council v Notley (No 2) [2013] NSWLEC 220 R v Morgan (1993) 70 A Crim R 368 R v Olbrich [1999] HCA 54; (1999) 199 CLR 270 R v Storey [1998] 1 VR 359; (1996) 89 A Crim R 519 R v Thomson; R v Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383 Regina v Daetz; Regina v Wilson [2003] NSWCCA 216; (2003) 139 A Crim R 398 Secretary, Department of Planning and Environment v Boggabri Coal Pty Limited [2014] NSWLEC 154 Siganto v R [1998] HCA 74; (1998) 194 CLR 656 The Council of the Municipality of Kiama v Pacific Real Estate (Warilla) Pty Ltd [2009] NSWLEC 191 Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465 Veen v The Queen [1979] HCA 7; (1979) 143 CLR 458 Waste Recycling and Processing Corporation [2006] NSWLEC 419; (2006) 148 LGERA 299 Category: Sentence Parties: Wingecarribee Shire Council (Prosecutor) Paul Gerard O'Shanassy (Defendant) Representation: Counsel: Mr T Howard SC (Prosecutor) Mr M Pesman SC and Ms C Novak (Defendant)

Solicitors: Swaab Attorneys (Prosecutor) N/A (Defendant) File Number(s): 51130 of 2012

Mr O'Shanassy Engages in Unlawful Earthworks and the Clearing of Vegetation Without Consent

1. On the periphery of the picturesque town of Mittagong in the Southern Highlands there are a number of semi-rural properties located on Ranges Road.
2. The defendant, Mr Paul O'Shanassy, owns one of these properties, which is located at Lot 11 in DP1010798, or 621 Range Road, Mittagong, known as "Ballingarry" ("the property"). Prior to the commission of the offence, the dwelling on Lot 11 sat nestled into the base of a bucolic treed ridgeline that ran around the north-east, east and south-east sides of the property.
3. Relevantly, adjoining this property were a number of parcels of land owned by Mr O'Shanassy's neighbours ("the land"): 1. Lot 12 in DP1010798, at 635 Range Road, Mittagong, owned by Mr John Uliana and Mrs Elizabeth Uliana ("the Ulianas"); 2. Lot 1 in DP878237, at 601 Range Road, Mittagong, owned by Mr John Lynch and Mrs Karen Lynch ("the Lynchs"); and 3. Lot 4 in DP 878237, at 30 Nannas Lane, Mittagong, owned by Mr Joseph Lorincz. On 1 December 2010 Mr Lorincz exchanged contracts to purchase this property from Mr Colin Dunn and Mrs Innes Dunn ("the Dunns"). The purchase was completed on 1 June 2011 and his occupation commenced on 30 September 2011.
4. Mr O'Shanassy was charged with an offence contrary to s 125(1) of the Environmental Planning and Assessment Act 1979 ("the EPAA"), in that between 1 May 2011 continuing to May 2012, he carried out development on the land, which was subject to an environmental planning instrument - the Wingecarribee Local Environmental Plan 2010 ("the LEP") - that required development consent to be obtained, and absent approval, he breached s 76A(1)(a) of that Act.
5. In particular, cl 7.3 of the LEP applied to the land and required development consent for the undertaking of earthworks. Mr O'Shanassy nevertheless carried out earthworks on the land which consisted of excavation of clay and rock estimated well in excess of 10,000m³, by the use of heavy machinery and associated works, and the removal of trees and vegetation. The development was carried out by civil works and engineering contractors who were retained by Mr O'Shanassy for the purpose of carrying out the excavation and who were instructed by him to carry out the development.
6. Mr O'Shanassy originally pleaded not guilty to the charges laid by the prosecutor, Wingecarribee Shire Council ("the council"). However, on 21 May 2014, after 12 days of hearing protracted over a period of three months, Mr O'Shanassy changed his plea from not guilty to guilty.

The LEP and its Application to the Land

1. It was not a matter of contention that the LEP applied to the land, which was zoned Zone E3 Environmental Management in the instrument. Development within this zone is subject to the controls set out in cl 2.3 of the LEP in conjunction with the Land Use Table. Accordingly, having regard to these provisions, development for the purpose of a dwelling may not be carried out except with development consent.
2. Furthermore, cl 7.3 of the LEP relevantly requires development for earthworks, subject to certain exceptions: 7.3 Earthworks (1) The objectives of this clause are as follows: (a) to ensure that any earthworks will not have a detrimental impact on environmental functions and processes, neighbouring uses or heritage items and features surrounding land, (b) to allow earthworks of a minor nature without separate development consent. (2) Development consent is required for earthworks unless: (a) the work does not alter the ground level (existing) by more than 800 millimetres, or (b) the work is exempt development under this Plan or another applicable environmental planning instrument, or (c) the work is ancillary to other development for which development consent has been granted.
3. And cl 5.9 relevantly mandates development approval for certain works impacting vegetation: 5.9 Preservation of trees or vegetation (1) The objective of this clause is to preserve the amenity of the area, including biodiversity values, through the preservation of trees and other vegetation. (2) This clause applies to species or kinds of trees or other vegetation that are prescribed for the purposes of this clause by a development control plan made by the Council. Note : A development control plan may prescribe the trees or other vegetation to which this clause applies by reference to species, size, location or other manner. (3) A person must not ringbark, cut down, top, lop, remove, injure or wilfully destroy any tree or other vegetation to which any such development control plan applies without the authority conferred by: (a) development consent, or (b) a permit granted by the Council. … (8) This clause does not apply to or in respect of: (a) the clearing of native vegetation: (i) that is authorised by a development consent or property vegetation plan under the Native Vegetation Act 2003 , or (ii) that is otherwise permitted under Division 2 or 3 of Part 3 of that Act, or (b) the clearing of vegetation on State protected land (within the meaning of clause 4 of Schedule 3 to the Native Vegetation Act 2003 ) that is authorised by a development consent under the provisions of the Native Vegetation Conservation Act 1997 as continued in force by that clause, or (c) trees or other vegetation within a State forest, or land reserved from sale as a timber or forest reserve under the Forestry Act 1916 , or (d) action required or authorised to be done by or under the Electricity Supply Act 1995 , the Roads Act 1993 or the Surveying and Spatial Information Act 2002, or (e) plants declared to be noxious weeds under the Noxious Weeds Act 1993. Note : Permissibility may be a matter that is determined by or under any of these Acts.

2001 Development Consent to Erect a Dwelling on Mr O'Shanassy's Property

1. On 11 October 2001, the council granted development consent for the erection of a house on Lot 11, namely, development consent LUA 01/1210 ("the 2001 development consent").
2. Importantly, condition 14 of the 2001 development consent provided that "the ridgelines of the highest point of the roof shall not exceed RL 105.5. This level reflects the relative levels as specified in the approved plans".
3. The reason for the imposition of this condition emerged from events which preceded the determination of the development application, namely, after an inspection of Lot 11, at an ordinary council meeting on 26 September 2001, the council's Inspection Committee recommended that "the highest point of the roof of the residence be below the adjacent ridge line and that the site be landscaped including background planting of advanced trees to soften the development." The recommendation was adopted by the council. The resolution accorded with the policy and practice of the council's planners to endeavour to locate houses and buildings below the physical ridgeline.
4. It was recorded in the minutes of that meeting that Mr O'Shanassy queried the recommendation and the requirement, to which the council's Director of Environment and Planning is recorded as having advised that the roofline had to remain lower than the ridgeline.
5. At its ordinary meeting of 10 October 2001, the council was presented with a supplementary report in relation to the proposed residence at Lot 11 which addressed the issue of the height of the residence relative to the ridgeline. The recommendations, made by the Acting Director of Environment and Planning of the council, and endorsed by the General Manager, were that the application be approved, subject to: i. the ridgeline of the highest point not exceeding 105.5 metres; ii. landscaping being installed to a plan approved by Council in accordance with the Guidelines for Landscape Conservation Zones; iii. the existing mature Eucalypt trees being retained on the site.
6. Consistent with condition 14 of the 2001 development consent, sheet two of two of the 2001 development consent approved plans depicted on the south, a sloping elevation forming a "natural ridge" to the east of the proposed house with a ridge line ("RL") of 106 metres.

Building and Occupation of the House at Mr O'Shanassy's Property

1. Construction on the house on Mr O'Shanassy's property was completed in early 2003.
2. Mr O'Shanassy occupied the house with his then wife, Ms Lana Lake, and their children, from about April 2003. From May 2012, Ms Lake ceased occupation of the house, but Mr O'Shanassy continued to reside there.
3. After the house had been built, the hillside or ridgeline to the east of the house and the mature eucalyptus trees on it remained a topographical feature of the land. Photographs taken by the council as part of the issue of the CC for Lot 11, probably taken in 2005-2006, depicted parts of the ridgeline and its relationship with the house on Mr O'Shanassy's property. Although Mr O'Shanassy submitted that the photographs had probably been taken around 2002 at the time that the CC was issued, the better view is that they were taken around 2005 when the occupation certificate was issued, given that the photographs indicate that the house was occupied at the time they were taken. Ultimately, very little turns on this, especially in light of later photographs of the intact ridgeline

Plans to Extend the Dwelling on the Property and to Adjust the Boundary on the Ulianas' Property

1. On 13 October 2009, Mr O'Shanassy met with Mr James Allman, a registered architect and principal of Allman Johnston Architects ("Allman Johnston"), on his property. During that meeting, Mr O'Shanassy and Ms Lake discussed general concepts for a proposed extension to the house on Lot 11 with Mr Allman in order for him to prepare a fee agreement for the engagement of his services to design the extension and submit a combined development and construction certificate application to the council.
2. Mr Allman sent the fee agreement to Mr O'Shanassy on 13 October 2009. It was not executed, and for various reasons the project did not go ahead at that time.
3. On 22 October 2010, the council granted development consent for subdivision relating to a boundary adjustment in respect of Lot 11 and the adjacent Lot 12 ("the boundary adjustment"). The approved boundary was identified on a plan, stamped as approved by the council, entitled "Plan of proposed boundary adjustment of lots 11 & 12 DP 1010789 Range Road, Mittagong". The boundary adjustment was, however, never registered.
4. On 14 November 2010, Mr O'Shanassy executed a retainer agreement with Allman Johnston with respect to proposed alterations and additions to the house on Lot 11, pursuant to which Allman Johnston was engaged "to prepare a design and documentation suitable for submission of a combined development and construction certificate application to Wingecarribee Shire Council".
5. Photographs were taken of Lot 11 by Mr Allman on 15 November 2010 for the purposes of drawing up the plans for the proposed extension to Mr O'Shanassy's house ("the Allman photographs"). The photographs included areas around the house. They show the ridge or hillside to be intact, with no excavation works in progress.
6. On 2 December 2010, Allman Johnston prepared its first set of architectural drawings for the extension (Issue A). Drawing No DA-A-1001 depicted, among other things, a "bedroom wing" with an area of 227.16m² extending to the east of the house at a floor level of RL 100, which was the same as the floor level of the existing house. This proposed new wing was shown to extend to within 11.959m of the eastern boundary of Lot 11. The bedroom wing extension could not be built at the nominated floor level of RL 100 without there being substantial excavation of the ridgeline.

The Earthworks

1. During the charge period (1 May 2011-May 2012), Mr O'Shanassy carried out bulk earthworks on Lot 11 absent development consent as required under the LEP.
2. The earthworks were carried out by civil work contractors engaged by Mr O'Shanassy. They used heavy machinery, including excavators, bulldozers and trucks. The works involved the excavation of earthen material and rocks in the area generally to the north and east of the house at Lot 11, and the transport and deposition of the spoil on a fill area on Lot 12, the Uliana's property, to the southeast of Lot 11 ("the earthworks").
3. The earthworks were carried out in the nature of a 'cut and fill' exercise, involving excavation principally at Lot 11, but also on Lot 1 and Lot 4 (Mr Lorincz's property), and transport and deposition of that excavated material as fill on an area within Lot 12.
4. The earthworks involved the associated removal of trees and vegetation which had been present in the area where the bulk excavation occurred to the east of the house at Lot 11.
5. The earthworks may, on any view, be characterised as extensive in scale. This was evidenced by various aerial photographs showing the extent of the excavation, transport and deposition of fill.
6. At all times up to and immediately before the commencement of the earthworks during the charge period, the ridgeline was a topographical feature of the land at the east of Lot 11, extending from a point at Lot 4, northeast of Lot 11, to a point on Lot 12 southeast of Lot 11. The toe (or initial elevation) of the ridgeline commenced on the boundary between Lot 4 and Lot 11, near the southern boundary of Lot 4 and approximately to the south-west of the house on that Lot. The ridgeline continued to rise in elevation in a southerly direction, approximately along the boundary to Lots 11 and 12, and rose and curved in a south-easterly direction on Lot 12.
7. Photographs (from the council files, the Allman photographs and those taken by Ms Lana Lake, Mr O'Shanassy's estranged wife, in early 2011) of the ridgeline as it existed before the earthworks were before the Court, demonstrating the extent to which the ridgeline was a prominent feature of the land at Lot 11. The natural ridgeline, its curvature and elevations (showing the highest point of the hillside at approximately 104.1m) as it existed before the charge period in 2007 was also depicted on a plan dated 25 July 2002 ("the Freeburn plan").

The Removal of Trees and Vegetation

1. The removal of trees and vegetation during the charge period carried out in association with the earthworks included the removal of about six to nine large eucalyptus trees. The trees were approximately 20m in height, previously standing on the section of the ridgeline that was cut away at Lot 11. Some of them had, however, been subject to storm damage prior to their removal.
2. The council submitted that these very large trees were a prominent feature of the landscape. This may be accepted. More equivocal, however, is the submission by the council that the trees provided the occupants of Lot 4 (Mr Lorincz's property) with amenity, predominantly in the form of protection from the south-westerly winds and shade from the afternoon sun during the summer months. I agree with Mr O'Shanassy that the evidence of this purported amenity does not rise to the criminal standard given that Mr Lorincz did not commence occupation of Lot 4 until 30 September 2011, that is to say, after the trees were removed.
3. By 30 September 2011, other smaller trees and vegetation had also been removed.
4. The scale of the removal of trees and vegetation undertaken in the period from June 2011 to November 2011 was discernible to a degree by comparing a photograph taken from a Cessna plane on 15 May 2011 by Mr David Evans, with the state of the land demonstrated by aerial photos taken by Mr Lorincz on 14 November 2011. A comparison of two photographs, one taken on 2 August 2011 and one taken on 25 October 2011, starkly demonstrated the felling of two very large eucalyptus trees, in addition to the removal of smaller trees and vegetation on the slope between those trees.

The Two Phases of the Earthworks

1. The earthworks and associated removal of trees and vegetation carried out on Lot 11 during the charge period can be divided into two temporal phases, separated by the issuing by the council to Mr O'Shanassy of a letter dated 5 December 2011, in which the council conditionally indicated that it had no objection to interim works identified in a report completed by Rein Warry & Co Surveyors on 3 November 2011 ("the Rein Warry report") being carried out.
2. The first phase of the earthworks comprised that part of the works carried out between 1 May 2011 and about 13 October 2011 ("the 2011 works"). The latter date being the date of the second of two council inspections of Lot 11 in October 2011.
3. The second phase comprised the remainder of the earthworks, which was carried out after the council had sent its letter of 5 December 2011 consenting to the interim works. Most, if not all, of this second phase of development was carried out between January 2012 and about May 2012 ("the 2012 works").
4. There can be no doubt that the 2012 works were necessitated by the carrying out by Mr O'Shanassy of the 2011 works without development consent.
5. The 2011 works comprised by far the majority of the overall earthworks on the land, and most, if not all, of the associated removal of trees and vegetation.
6. Mr O'Shanassy's surveyor, Mr Darryl Warry, surveyed the land on 12 October 2011 ("the Rein Warry October 2011 survey") and produced three survey sheets dated 29 October 2011. The extent of the 2011 works were discernible from the Rein Warry October 2011 survey and from a collection of photographs taken by Mr Lorincz at ground level in October 2011 and from 500ft above the ground from an aircraft on 14 November 2011. What is shown in the aerial photographs is consistent with Mr Warry's observations when he carried out his 12 October 2011 survey.
7. The area of land generally to the east of Lot 11 where the ridgeline had been modified by the earthworks to create a relatively flat area over an area of approximately 3,065m². The earth and rock removed from that area was placed as fill onto Lot 12, creating a mound in that area. The total area of the land the subject of the cut and fill exercise marginally exceeded 1ha.
8. On 1 December 2010, Mr Lorincz exchanged a contract for the purchase of Lot 4 from Mr and Mrs Dunn. On 15 May 2011, he flew over Lot 4 and the surrounding land in a Cessna plane at a height of approximately 500ft from the ground and did not observe any earthworks, land clearing or tree felling on Lot 4, Lot 11 or the surrounding lots.

The Purpose of the Unlawful Development

1. Mr O'Shanassy caused the earthworks to be carried out for the purpose of enabling or facilitating the proposed extensions to the house on Lot 11 shown in the Allman Johnston drawings.
2. He was also motivated by a desire to increase the value of his property and to improve its amenity by opening up panoramic views both from the existing house and from the parts of the house which were proposed to be added by way of the proposed Allman Johnston extensions.
3. Mr O'Shanassy told Mr Symonds that he wanted to put an extension on the back of his house with a room with large windows and when the hill was removed, he "could see the lights of Sydney" and that this would increase the value of his house by $1.5 million.

The Effect of the Unlawful Development on Lot 11

1. By removing most of the ridgeline, there is no doubt that the earthworks and associated tree and vegetation removal fundamentally altered the landform by replacing the vegetated ridgeline with a levelled area denuded of the mature eucalyptus trees, and by creating a very large mound of fill over a broad area on Lot 12.
2. The removal of the ridgeline and the vegetation made the house on Lot 11 more visually prominent than it had been when the ridgeline and the trees were present, thus undermining the reason for the imposition of condition 14 in the 2001 development consent, namely, that the roof remain below the ridgeline.
3. The removal of the trees also undermined the express requirement contained in the approved plans for the erection of the dwelling, viz, that the existing mature eucalypts be retained.
4. The works benefited Mr O'Shanassy by preserving and increasing the views from his house and by facilitating major proposed alterations and additions to the existing dwelling by creating a landform on which the proposed extensions could be assessed and built with the ridgeline no longer presenting any impediment to their approval or construction. This was intended to significantly increase the value of his property.

The Effects of the Unlawful Development on Lot 4

1. In addition to the loss of amenity caused by the removal of the trees and vegetation discussed above (and elaborated upon further below), the council additionally argued, based, in part, on evidence given by Mr Lorincz, that the unlawful development had a deleterious effect on the occupants of Lot 4 (Mr Lorincz's property), because the carrying out of the earthworks changed the direction of stormwater flow. Whereas the flow over much of that area had previously been towards the west, the works caused the flow to be directed to the north and east towards Lot 4. The works also left a large area with disturbed earth over its surface. In combination, these factors caused the occupants of Lot 4 to suffer a nuisance in the form of the flow onto their property and driveway, and under their house, of sediment-laden water from the site of the earthworks during and following rain events.
2. Furthermore, when a bund or levy was constructed at the edge of the excavated area at the direction of the council in October 2011, for the purpose of preventing further flow of stormwater through the disturbed areas down onto Lot 4, Mr O'Shanassy caused the bund to be breached in three locations, thereby opening paths for stormwater to once again flow onto Mr Lorincz's property.
3. And that despite the fact that the interim works proposed in Part 4 of the Rein Warry report included, as an urgent interim measure, the construction of a table drain so that all of the run-off from the batters on site would drain in a westerly direction, away from Lot 4, this was not undertaken. In fact, the proposed table drain had still not been constructed by mid-2012, and therefore, Mr Lorincz experienced several adverse weather events during which, he claimed, sediment laden water from the areas disturbed by the earthworks flooded his property.
4. That the 2011 and 2012 works had a deleterious impact on Mr Lorincz's property was vigorously denied by Mr O'Shanassy primarily for the following reasons: 1. there was no geotechnical evidence to support the assertion beyond reasonable doubt that the works had an adverse impact on the occupants of Lot 4 by changing the direction of stormwater run-off; 2. the breaches of the bund had been approved by the council. In particular, on 7 October 2011, Mr Webb requested that Mr O'Shanassy install an embankment around the 2011 works and put in a number of silt cloth outlets to filter the water, causing it to flow towards Lot 4 ("the sediment erosion embankment"). Then in April 2012, Mr Mitchell asked Mr O'Shanassy to remove the silt cloth outlets from the sediment erosion embankment, which he did; and 3. as at 9 March 2012 a table drain had been constructed around the 2012 work site for the purpose of draining run-off in a westerly direction towards the front paddock of Lot 11, in the direction of Range Rd, as specified in Part 4 of the Rein Warry report. Mr O'Shanassy relied on an aerial photograph taken on 9 March 2012, to demonstrate the construction of the table drain.

Evidence of the Council

1. In addition to numerous exhibits, during the totality of the hearing the council variously relied on the material contained in 11 affidavits, namely: (a) two affidavits of Mr Lorincz, dated 11 September 2012 and 13 September 2013; (b) two affidavits of Mr Shannon Webb, dated 8 November 2012 and 25 September 2013; (c) three affidavits of Mr Symonds dated 30 August 2012, 21 March and 4 September 2013; (d) two affidavits of Mr Allman dated 15 April and 1 May 2014; (e) an affidavit of Mr Beau Woodward dated 11 September 2012; and (f) an affidavit of Mr Ian Pearse dated 11 April 2014.
2. This evidence has, where relevant to these sentencing proceedings, been incorporated into the facts as found above.

Mr O'Shanassy's Evidence

1. Similarly, in addition to separately tendered material, Mr O'Shanassy read three affidavits in the proceedings, sworn by him on 21 March, 14 April and 4 August 2014.
2. Most relevantly, in his affidavit sworn 4 August 2014, Mr O'Shanassy deposed to the fact that: (a) since 1999 he has held a practising certificate with the New South Wales Law Society. His current practising certificate is unrestricted and he has never been found liable of professional misconduct during this time; (b) he regretted having carried out the 2011 works and apologised for having undertaken them without development consent. He acknowledged that the carrying out of development absent consent undermines the EPAA; (c) he acknowledged that part of the purpose for carrying out the 2011 works was to "give consideration to the proposed extension" to his house; (d) he initially believed he had permission to carry out the 2012 works but that he now realised that this belief was not correct "as a matter of law", because the works required consent; (e) he voluntarily suspended the earthworks being carried out on Lots 11 and 12 in October 2011, and thereafter undertook a number of steps that he believed would mitigate the environmental impacts of the unlawful development; (f) he carried out reparation works in accordance with instructions from the council and pursuant to Parts 4 and 5 of the Rein Warry report, thereby incurring approximately $84,000 in construction costs; (g) the considerable adverse publicity surrounding the proceedings had had an effect on him; (h) he had suffered financial loss as a result of the commission of the offence because his house was required to be sold by the mortgagee in possession for considerably less than it had been valued at between 2004 and 2011; (i) the proceedings had taken a personal toll on his dealings with his estranged wife Ms Lake; (j) other than a low range PCA in 1991, he had no previous convictions and no convictions whatsoever for any environmental offences; and (k) he has no intention of undertaking any future earthworks without first obtaining advice and approval, and in light of his current financial circumstances it is unlikely that he will ever be in a position again to undertake large-scale development works, including earthworks, again.
3. Mr O'Shanassy was cross-examined. During his questioning he gave the following evidence: 1. he accepted that during the earthworks, for which he was responsible, there was more sediment that flowed down the hill towards Lot 4 (T981.38), and moreover, that the works he carried out prior to February 2012 were likely to have contributed to the presence of sediment laden water in the subfloor areas of Mr Lorincz's house, as illustrated in several photographs taken by Mr Lorincz (T986.17); 2. he had not apologised to Mr Lorincz (T987.13); 3. that he regretted cutting down the trees (T988.04); 4. that one of the purposes of cutting down the trees was to enhance the views from his property (T989.48), however, the primary purpose was to reinstate a boundary fence following a boundary readjustment (T990.09); 5. that he regretted carrying out the 2012 works (T990.47) but that his "regret stems from the fact that he wasn't there to carefully monitor or closely monitor it [the works carried out by the contractor Mr Woodward], and if I had been then carrying out the works in accordance with the Rein Warry report would have been more precise" (T994.01); 6. he was present during the excavations works carried out in 2012 by Mr White (T994.17); 7. he did not accept that in undertaking the 2012 works, he had caused a lot more fill to be placed on Lot 12 than was suggested should be deposited by Mr Warry and as he proposed to the council would be deposited as part of the interim works to rectify the 2011 works. He had not calculated the amount of fill placed on Lot 12 and therefore could not say whether it was more than agreed to by the council. Mr O'Shanassy had merely instructed the contractors to carry out the works in accordance with the plans drawn up by Mr Warry (T991.28); 8. while many of the interim measures itemised by the Rein Warry report were not carried out by the date specified, they had all been completed by December 2012 (T992.01); and 9. that he was aware that because of the fill deposited on Lot 12, the Networks Geotechnical report dated October 2013 concluded that there was a low risk of major slope failure on Lot 12, and that he would be "making good" any costs incurred by the Ulianas in carrying out recommendations by council engineers to remediate the problem (T996.33-997.31).

Applicable Sentencing Principles

1. The sentence imposed by the Court must reflect, and be proportionate to, both the objective elements of the offence and the subjective factors relating to Mr O'Shanassy and his conduct (Environment Protection Authority v Orica Australia Pty Ltd (the Nitric Acid Air Lift Incident) [2014] NSWLEC 103; (2014) 206 LGERA 239 at [80]; Director-General, Department of Environment and Climate Change v Walker Corporation Pty Limited (No 4) [2011] NSWLEC 119 at [21]; 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).
2. The instinctive synthesis method is the appropriate approach to sentencing. That is, a weighing up of all of the relevant factors of the offence which act to aggravate and mitigate the sentence imposed (Orica at [81]; Muldrock v R [2011] HCA 39; (2011) 244 CLR 120 at [26] and Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 at [35]-[39], [50]-[84] and [136]-[139]).
3. Section 21A of the CSPA lists relevant subjective factors that may be taken into account on sentencing, including aggravating factors at s 21A(2) and mitigating factors at s 21A(3). Factors potentially applicable to these proceedings include ss 21A(2)(g) and (o) and 21A(3)(e), (f), (g), (h), (i) and (k).
4. In sentencing proceedings, a Court may not take into account any factor that is adverse to the defendant unless it have been proven beyond reasonable doubt. By contrast, factors in the defendant's favour may be taken into account if they can be proven on the balance of probabilities (R v Storey [1998] 1 VR 359; (1996) 89 A Crim R 519 at 369; R v Olbrich [1999] HCA 54; (1999) 199 CLR 270 at [27]; Gore v The Queen; Hunter v The Queen [2010] NSWCCA; (2010) 208 A Crim R 353 at [27] and [105]).
5. When assessing the objective gravity of an offence, the Court establishes the upper limit of the appropriate penalty, but also the lower limit beneath which the penalty should not go. Mitigating factors should not produce a sentence that fails to reflect the gravity of the offending incident or the objectives of punishment, which include both retribution and deterrence (Orica at [87], Environment Protection Authority v Moolarben Coal Operations Pty Ltd [2012] NSWLEC 65 at [44] and Environment Protection Authority v Waste Recycling and Processing Corporation [2006] NSWLEC 419; (2006) 148 LGERA 299 at [140]).

Objective Circumstances of the Offence

1. The principal factor to which the Court must have regard is the objective gravity of the offence. This involves a consideration of the following factors: the nature of the offence; the maximum penalty for the offence; the environmental harm caused by the commission of the offence; Mr O'Shanassy's state of mind in committing the offence; Mr O'Shanassy's reasons for committing the offence; the foreseeability of the risk of harm to the environment by the commission of the offence; the practical measures available to Mr O'Shanassy to avoid harm to the environment; and Mr O'Shanassy's control over the causes of harm (Orica at [93]; Bentley at [163]; Gittany Constructions Pty Limited v Sutherland Shire Council [2006] NSWLEC 242; (2006) 145 LGERA 189 at [110] and Plath v Rawson [2009] NSWLEC 178; (2009) 170 LGERA 253 at [48]).

Nature of the Offence

1. A fundamental consideration of relevance to environmental offences is the degree to which, having regard to the maximum penalties provided by the legislation in question, the defendant's actions would offend against the legislative objects expressed in the statutory offence (Orica at [94] and Director-General of the Department of Environment and Climate Change v Rae [2009] NSWLEC 137 at [15]).
2. The relevant objects of the EPAA are (s 5): (a) to encourage: (i) the proper management, development and conservation of natural and artificial resources, including agricultural land, natural areas, forests, minerals, water, cities, towns and villages for the purpose of promoting the social and economic welfare of the community and a better environment, (ii) the promotion and co-ordination of the orderly and economic use and development of land, ... (vi) the protection of the environment, including the protection and conservation of native animals and plants, including threatened species, populations and ecological communities, and their habitats, and (vii) ecologically sustainable development, and … (b) to provide increased opportunity for public involvement and participation in environmental planning and assessment.
3. The nature of the offence of carrying out development without consent contrary to s 76A(1)(a) of the EPAA was articulated by Preston J in Secretary, Department of Planning and Environment v Boggabri Coal Pty Limited [2014] NSWLEC 154 at [17]-[19]: 17 One of the principal means by which these objects are achieved is by the Act controlling the carrying out of development depending on its likely impact on the environment. Environmental planning instruments specify the purposes for which development may be carried out without development consent or only with development consent and for which development is prohibited. A person wishing to carry out development that may be carried out only with development consent must lodge a development application with the relevant consent authority for development consent to carry out that development. Depending on the type of development, the development application will need to include information or be accompanied by documents that assess the impacts, including environmental impacts, of the development and the means to mitigate these impacts. Again, depending on the type of development, there are differing procedures for public notification and public participation, including making submissions objecting to the development in the development application. There may need to be consultation with other regulatory authorities. The consent authority, in determining the development application, is required to consider a range of matters, including the impacts of the proposed development on the environment, and to impose relevant and appropriate conditions of consent. Again, depending on the type of development, there are different rights of appeal against a decision of a consent authority to refuse or to approve development consent. 18 There is a need for the upholding of the integrity of the system of planning and development control. The system depends on persons taking steps to obey the law by ascertaining when development consent is required, obtaining development consent when required, and carrying out development in accordance with any development consent obtained: Gittany Constructions Pty Ltd v Sutherland Shire Council [2006] NSWLEC 242; (2006) 145 LGERA 189 at [104], [105] and Director-General, Department of Environment and Climate Change v Rae [2009] NSWLEC 137; (2009) 168 LGERA 121 at [18]. 19 Offences that undermine the integrity of the regulatory scheme are objectively serious. Use of the criminal law ensures the credibility of the regulatory scheme.

Maximum Penalty

1. The maximum penalty reflects the seriousness with which Parliament views the offence (Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 at 698, Plath v Rawson at [67] and Humphries at [21]).
2. In this instance, the maximum penalty for the commission of an offence against s 125 of the EPAA by an individual is $1.1 million.

Environmental Harm

1. Environmental harm caused as a result of the commission of an offence is a critical factor in the assessment of its objective gravity. The concept of harm in the context of environmental offences is broad (Orica at [116]; Waste Recycling and Processing Corporation at [145]-[147]).
2. The concept of harm is broad and includes the potential or risk of harm, and not just actual harm (Waste Recycling and Processing Corporation at [145]; Axer Pty Ltd v Environment Protection Authority (1993) 113 LGERA 357 at 366 and Bentley at [175]). Harm can be direct, indirect, or cumulative (Waste Recycling and Processing Corporation at [147]).
3. If the environmental harm is severe, this can be an aggravating factor under s 21A(2)(g) of the CSPA, which will increase the objective seriousness of the offence.
4. Reference has already been made to the environmental harm occasioned by Mr O'Shanassy by his persistent undermining of the environmental planning regime in this State (Hurstville City Council v Naumcevski [2011] NSWLEC 226 at [49]; Lane Cove Council v Wu [2011] NSWLEC 43 at [45] and Mosman Municipal Council v Menai Excavations Pty Ltd [2002] NSWLEC 132; (2002) 122 LGERA 89 at [35]).
5. There was, however, more tangible harm caused by the unlawful works in 2011 and 2012. First, the wholesale removal of that part of the ridgeline on Lots 11 and 4, together with its vegetation, fundamentally altered the landform and made the dwelling on Lot 11 much more visually prominent than it had been before.
6. Second, the removal of the large eucalyptus trees (even if some were storm damaged) and the natural ridgeline degraded the aesthetic environment of the area and adversely affected its amenity because it involved the removal of a pre-existing natural feature of the landscape, whose value had been enshrined in the council's ridgeline policy, as reflected in condition 13 of the 2001 development consent, and the express condition that the "existing mature eucalyptus trees to be retained".
7. While there was insufficient evidence to find beyond reasonable doubt that the amenity of Mr Lorincz had been directly affected by the removal of the vegetation, again, there is a risk that the commission of the offence caused this harm. I note that the trees were present when Mr Lorincz inspected the land prior to his occupation of Lot 4.

State of Mind of Mr O'Shanassy at the Time of the Commission of the Offence

1. Although the offence against s 125 of the EPAA is one of strict liability, and therefore, mens rea is not an element of the offence, the state of mind of an offender at the time of the commission of the offence remains relevant. This is because a strict liability offence that is committed intentionally, negligently or recklessly will be objectively more serious than one committed inadvertently (Orica at [127]; Rae at [42]-[43] and Gittany at [123]).
2. The council submitted that the unlawful development was undertaken deliberately by Mr O'Shanassy. Mr O'Shanassy submitted, by contrast, that both the 2011 and 2012 works were inadvertently engaged in by him.
3. It is convenient to deal with Mr O'Shanassy's state of mind in relation to the 2011 works and the 2012 works separately.
4. In relation to the 2011 works, Mr O'Shanassy understood, as early as 26 September 2001 (the date of a council ordinary meeting at which Mr O'Shanassy was present), that the extension he proposed to his house would contravene the council's ridgeline policy. Knowing this, he nevertheless decided to excavate the ridgeline. He did not seek permission to do so, because, I have no doubt, he knew that it would be unlikely that he would be granted approval to undertake such development.
5. In my opinion, Mr O'Shanassy committed the 2011 works intentionally in order to enable an extension to his house and in order to take advantage of the view of Sydney. This is evident from: 1. the evidence of his estranged wife, Ms Lake; 2. the evidence of Mr Symonds to the effect that Mr O'Shanassy told him he wanted to put an extension on the back of his house with a room with large windows so that when the hill was removed, the bright lights of Sydney could be seen at night; 3. the fact that Mr O'Shanassy retained Allman Johnson in November 2010 not only to design the extension, but also to submit a combined development and construction certificate application to the council for the alterations and additions. In other words, Mr O'Shanassy knew that he needed approval to undertake the development; and 4. the evidence of Mr Lorincz, who despite his obvious antipathy for Mr O'Shanassy, I accept was telling the truth when he deposed to the fact that Mr O'Shanassy had told him that the earthworks and tree removal had been carried out for the purpose of the extension to the house, and that Mr O'Shanassy had (falsely) told him that the 2011 work had been approved by the council

Reasons for Offending

1. One consideration in measuring the criminality of an offence is the reason for its commission (Rae at [47]; Axer at 366; Bentley at [237]; Gittany at [140] and Garrett v Williams [2007] NSWLEC 56 at [120]). Where an offence is motivated by commercial gain, the objective seriousness of the offence increases (Rae at [48] and Bentley at [246]-[247]).
2. The facts found above plainly disclose that Mr O'Shanassy caused the unlawful development to be carried out for the purpose of enabling or facilitating the proposed extensions to the house on Lot 11.
3. Mr O'Shanassy's purpose in completing the extension was to increase the value of his property and to improve his amenity by opening up his view. Indeed, Mr O'Shanassy told Mr Symonds that he believed this could increase the value of his house by $1.5 million
4. There can be no doubt that Mr O'Shanassy committed the offence for the purpose of financial gain.
5. That the opposite occurred, namely, that the financial consequences of his offending have been "devastating" are, in the context of this factor, irrelevant. While Ballingarry may have been sold by the mortgagee in possession for a potential $2,240,000 loss (due in part, it may be assumed, by the s 149 certificate notation), the fact remains that Mr O'Shanassy was driven by mercantile desires in committing the offence. That these did not materialise is not to the point.
6. Mr O'Shanassy's profit motive is an aggravating circumstances under s 21A(2)(o) of the CSPA.

Foreseeability of the Risk of Harm

1. The extent to which Mr O'Shanassy could have reasonably foreseen the environmental harm occasioned by the offence is a relevant objective circumstance that may act to mitigate or aggravate the final penalty (Orica at [152]; Camilleri's Stock Feeds at 700 and Plath v Rawson at [48]).
2. Having regard to the nature and extent of the of the earthworks and the cleared vegetation, a reasonable person in Mr O'Shanassy's position would have foreseen the risk of harm caused, or likely to be caused, to the environment by reason of the commission of the offence. This is particularly so in circumstances where Mr O'Shanassy had been informed of the council's ridgeline policy at the council's ordinary meetings of 26 September and 10 October 2001. It was, moreover, a condition of his development consent in 2001 that he retain the mature eucalyptus trees.

Practical Measures Available to Mr O'Shanassy to Avoid or Mitigate the Harm

1. The practical measures available to Mr O'Shanassy to avoid or mitigate the environmental harm caused by the commission of the offence are relevant factors in determining the imposition of an appropriate sentence (Rae at [14] and [52]).
2. The principal practical measure available to Mr O'Shanassy to avoid the harm caused by the commission of the offence was to not have undertaken the earthworks or removed the vegetation in circumstances where he knew that he required approval to do so. Alternatively, Mr O'Shanassy could have applied for consent for the works by lodging a development application with the council. There was nothing stopping him from doing so, other than perhaps, knowledge of its likely futility.
3. Further, when the Rein Warry report was provided to Mr O'Shanassy towards the end of 2011, he could have minimised the environmental harm caused by the unlawful earthworks by immediately carrying out only the interim works as specified in that report. Instead, Mr O'Shanassy continued to excavate and deposited excessive fill on Lot 12 and the additional interim measures detailed in the Rein Warry report were not completed for 11 months.
4. Having said this, ultimately the interim measures were completed by Mr O'Shanassy, who expended approximately $84,000 in rectification costs. In addition, Mr O'Shanassy has agreed to pay the owners of Lot 12, the Ulianas, for the cost or remediating the low risk of land slippage caused by the extra fill deposited on their property. The Court takes these remediation measures undertaken by Mr O'Shanassy into account.

Control Over the Causes of Harm

1. In sentencing, the Court must also take into account the extent to which Mr O'Shanassy had control over the cause or causes of the commission of the offence (Rae at [53]; Chief Executive of Environment and Heritage v Humphries [2013] NSWLEC 213 at [12] and [48]; Chief Executive, Office of Environment and Heritage v Kennedy [2012] NSWLEC 159 at [41] and [79] and Corbyn v Walker Corporation [2012] NSWLEC 75; (2012) 186 LGERA 442 at [16] and [37]).
2. Although at times during his evidence Mr O'Shanassy attempted to blame the contractors he engaged for the extent of the excavation of the hillside, particularly in relation to the 2012 works, ultimately Mr O'Shanassy agreed that at all times during the charge period he was responsible for, and caused, the various contractors to carry out the earthworks to his specifications. He therefore had complete control over the causes of harm to the environment.

Conclusion on Objective Gravity

1. In my opinion, having regard to the objective factors discussed above, the offence should be classified toward the higher end of the range of seriousness, particularly when consideration is given to the substantial environmental harm the offence caused and Mr O'Shanassy's intentional state of mind during its commission.

Subjective Factors

1. As stated above, the Court must consider those factors particular to Mr O'Shanassy that, in addition to aggravating the imposition of a sentence, act to mitigate the sentence penalty imposed (s 21A(3) of the CSPA).
2. The relevant subjective mitigating factors to be considered within the limits set by the objective gravity of the offence are: 1. whether Mr O'Shanassy has a prior criminal record (s 21A(3)(e) of the CSPA); 2. whether Mr O'Shanassy is of good character (s 21A(3)(f) of the CSPA); 3. whether Mr O'Shanassy is unlikely to re-offend (s 21A(3)(g) of the CSPA); 4. whether Mr O'Shanassy has demonstrated remorse for the commission of the offence (s 21A(3)(i) of the CSPA); 5. whether, and when, Mr O'Shanassy entered a guilty plea (ss 21A(3)(k) and 22 of the CSPA and R v Thomson; R v Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383 at [152]-[155]); 6. whether Mr O'Shanassy provided assistance to the council in its investigation and prosecution of the offence (ss 21A(3)(m) and 23 of the CSPA); 7. whether Mr O'Shanassy has agreed to pay the council's legal and investigation costs; and 8. the capacity of Mr O'Shanassy to pay the monetary penalty imposed on him having regard to s 6 of the Fines Act 1996.

Lack of Prior Criminality

1. Mr O'Shanassy has no relevant prior convictions, and none for any environmental offences. The low range PCA in 1991 is so divorced from the present context, both in time and circumstance, that it can be ignored.

Good Character

1. It was acknowledged by the council, and is accepted by the Court, that Mr O'Shanassy is, but for the commission of this offence, a man of good character who is well-liked and respected in the community. This was reflected in the references upon which Mr O'Shanassy relied from Mr Anthony Bannon SC, a barrister; Ms Julie Gilick, the Head of Frensham and Winifred West schools; Dr Sam Rewais, a medical practitioner; and Mr Andrew Richardson, a property developer. All attested to Mr O'Shanassy's excellent character, integrity, and professionalism. They uniformly expressed their surprise at the commission of the offence in light of their past dealings with him.

Likelihood of Re-offending

1. Mr O'Shanassy submitted that he had no intention of re-offending and that, in any event, his financial circumstances prohibited him from doing so. I am not so confident.
2. During the first twelve days of the hearing, prior to his change of plea, Mr O'Shanassy demonstrated a propensity to tailor his evidence to suit his defence of the charge in an manner that resulted in the Court having to question the veracity of some of his evidence.
3. A single illustration is sufficient. Mr O'Shanassy initially alleged that incremental excavation of the ridgeline had occurred sometime prior to the commencement of the charge period, thereby absolving him of liability for the earthworks as charged. In particular, Mr O'Shanassy denied that, prior to the 2011 works, the ridgeline was in the physical state as shown in the photographs taken by Ms Lake in early 2011. He suggested that Ms Lake had digitally altered the dates on the photographs when they had actually been taken before 2011 (T382.7-29 and T447.41-48). Although he later resiled from this position in the face of reasonably conflicting evidence (the Allman photographs taken in November 2010), his initial persistence in this submission did not reflect well upon his credit.
4. In making this observations, I am not treating Mr O'Shanassy's evidence as a circumstance of aggravation contrary to the principle in Siganto v R [1998] HCA 74; (1998) 194 CLR 656 (at [30]-[31]). Rather, it means that I cannot give full weight to Mr O'Shanassy's claim that he will not re-offend.
5. I also take into account the fact that Mr O'Shanassy continues to maintain that he did not unlawfully removed the vegetation on the hillside, but that in the absence of proof, he would not cavil with the council's submission in this regard.
6. Furthermore, I have had regard to his continued reluctance to express genuine remorse for the 2012 works (discussed in further detail below).
7. For these reasons, I find it impossible to conclude that Mr O'Shanassy will not reoffend in the future. I accept, however, that the likelihood, given the emotional and financial trauma these proceedings have caused Mr O'Shanassy, is not high.

Contrition and Remorse

1. In Waste Recycling and Processing Corporation Preston J opined that remorse is better demonstrated through "the offender taking actions" rather than "offering smooth apologies" (at [203]). Relevantly for present purposes, his Honour stated that the genuineness of any contrition and remorse was better shown by: 1. the speed and efficiency of any actions taken to rectify harm caused (at [204]); 2. the voluntary reporting of the commission of the offence to relevant authorities (at [210]); and 3. the measures taken to address the causes of the commission of any offence to prevent its occurrence in the future (at [212]).
2. In my opinion, having regard to these factors and the evidence before the Court, the remorse expressed by Mr O'Shanassy in these proceedings cannot be given full weight. Again, it is necessary to differentiate the expressions of contrition proffered by Mr O'Shanassy in relation to the 2011 and the 2012 works.
3. Mr O'Shanassy said in both his oral and written evidence that he regretted undertaking the 2011 works and apologised for having undertaken them without development consent.
4. The council submitted that this sentiment could not be accepted in light of Mr O'Shanassy's initial denial of any liability for the unlawful works, particularly his adherence to the contention that the excavation of the hillside had occurred incrementally prior to the charge period.
5. There is no doubt that Mr O'Shanassy's initial account of the pre-charge excavation period, which included his cross-examination of Ms Lake, was untruthful. Nevertheless, the truth was ultimately disclosed by Mr O'Shanassy and in relation to the 2011 works, with one exception, I accept this very late change of position by him as sincere. Damascene changes of heart, even if arrived at the gates of the city, can nonetheless be genuine. Mr O'Shanassy's written and oral expressions of remorse were, in my view, more than complimented by his changed plea and the detailed agreed statement of facts willingly put before the Court by him that contained a number of damning admissions.
6. The exception is the removal of the vegetation, which, until the penultimate day of the trial, Mr O'Shanassy continued to assert was lawful under the Native Vegetation Act, but because he could not discharge his onus of proof, he did not press his submissions on this issue. I cannot, in these circumstances, find that he was remorseful in relation to this part of his offending.

Late Guilty Plea

1. A plea of guilty entered by a defendant at the earliest possible opportunity can attract a maximum discount of 25% on the penalty imposed as a reflection of the utilitarian value of the pleas to the criminal justice system (ss 21A(3)(k) and 22 of the CSPA and R v Thomson; R v Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383 at [160]).
2. Given the very late change of plea by Mr O'Shanassy - after the completion of twelve court hearing days, after the council had filed and served written submissions on the question of liability, and in circumstances where five interlocutory judgments were delivered during the course of the proceedings, including the handing down of reasons rejecting a 'no case to answer' application - the utilitarian value of the delayed guilty plea was extremely limited but not wholly. Nevertheless it was not non-existent and some advantages to the criminal justice system were yielded insofar as Mr O'Shanassy's criminal liability was no longer required to be determined and a sentence hearing could be conducted instead (Harrison v Perdikaris [2015] NSWLEC 99 at [98]-[100]).
3. Having regard to all these circumstances, in my opinion, a discount of 10% is warranted.

Assistance to Authorities

1. It is true that Mr O'Shanassy voluntarily suspended the earthworks in respect of Lots 11 and 12 on 7 October 2011, and the conducted the works in 2012 to, in part, remedy the environmental harm caused by the 2011 works. Otherwise, it does not appear that Mr O'Shanassy's provided any further assistance to the council in its investigation of the offence.

Agreement to Pay the Council's Costs

1. 83 The Court is empowered to order an offender to pay the prosecutor's legal costs of the proceedings pursuant to ss 257B and 257G of the CPA.
2. 84 The payment of a prosecutor's costs is viewed as an aspect of punishment and should be considered in the determination of the appropriate penalty as a factor that acts to reduce the penalty (Environment Protection Authority v Barnes [2006] NSWCCA 246 at [78] and [88]; Environment Protection Authority v Queanbeyan City Council (No 3) [2012] NSWLEC 220; (2012) 225 A Crim R 113 at [248] and Rae at [68]).
3. Mr O'Shanassy has not agreed to pay the council's costs. Nevertheless, he acknowledged that it was likely that he would be ordered to pay these costs, which the council estimated to be approximately $300,000. The Court takes this into account.

Payment of Remediation Costs

1. The Court further takes into account the fact that Mr O'Shanassy has, to date, expended more than $84,000 of his own funds in carrying out remediation works on the land. But only limited weight may be given to this factor in mitigation because, as Mr O'Shanassy conceded, part of those costs were incurred in relation to works (the 2012 works) from which he hoped to benefit.

Extra-Curial Punishment

1. The Court may take into account extra-curial punishment suffered as a result of the commission of an offence (Regina v Daetz; Regina v Wilson [2003] NSWCCA 216; (2003) 139 A Crim R 398 at [62]-[63]; Alameddine v The Queen [2006] NSWCCA 317 at [25]-[27]; Cessnock City Council v Quintaz [2010] NSWLEC 3; (2010) 172 LGERA 52 at [115] and Director-General, Department of Environment v Climate Change v Hudson [2015] NSWLEC 110 at [189]-[194]).
2. Negative publicity was considered to be a factor in mitigation in Garrett On Behalf of the Director-General of the Department of Conservation and Environment v House [2006] NSWLEC 492. In that decision, Pain J took into account (together with other factors) negative publicity in affording a defendant a substantial discount in respect of the fine that she intended to impose (at [60]). Her Honour accepted that the publicity had negatively affected his business and personal life.
3. The Court takes into account the public embarrassment and adverse publicity that Mr O'Shanassy has suffered as a result of his unlawful conduct.

Conclusion on Subjective Considerations

1. The subjective considerations operate to mitigate only to a very limited degree the penalty that would otherwise be imposed by the Court and I consider a total discount of 15% to be appropriate.

The Appropriate Sentence to be Imposed on Mr O'Shanassy

1. The imposition of a sentence serves a number of purposes. As identified above, the relevant purposes listed in s 3A of the CSPA inform the determination of an appropriate sentence. These purposes include punishment (s 3A(a)); general and specific deterrence (s 3A(b)); community protection (s 3A(c)); making Mr O'Shanassy accountable for his actions (s 3A(e)); denunciation (s 3A(f)); and a recognition of the harm caused by the commission of the offence (s 3A(g)).

Deterrence, Denunciation and Retribution

1. There is, in my opinion, a role in this case for both specific and general deterrence.
2. Generally, any penalty imposed must be sufficient to specifically deter the offender from repeating the conduct that resulted in the commission of the offence in the future in the hope that only nominal penalties will be applied.
3. There is also a need for the sentence to have embedded in it an element of general deterrence to promote the objects of the EPAA and to ensure that others engaged in development do not carry out unapproved works (Plath v Hunter Valley Property Management Pty Ltd [2010] NSWLEC 264 at [34]; Pittwater Council v Scahill [2009] NSWLEC 12; (2009) 165 LGERA 289 at [109]; Snowy Hydro at [206] and Axer at 367). The penalty imposed should be sufficient to cause others to take the requisite positive steps to avoid offending, rather than treating the risk of a fine as a cost of completing the development.
4. In Scahill, Preston J appositely stated (at [46]): There is a need for the upholding of the integrity of the system of planning and development control. This system depends on persons taking steps to obey the law by ascertaining when development consent is required and then obtaining development consent before carrying out development: Byron Shire Council v Fletcher [2005] NSWLEC 706; (2005) 143 LGERA 155 at [60]-[61]; Cameron v Eurobodalla Shire Council [2006] NSWLEC 47; (2006) 146 LGERA 349 at [72]-[80]; Byers v Leichhardt Municipal Council [2006] NSWLEC 82 at [83], [85]; Gittany Constructions Pty Ltd v Sutherland Shire Council at [104]; and Garrett v Freeman (No 5) (2009) 164 LGERA 287 at [58]. Development must be carried out in accordance with the terms of the development consent obtained: Gittany Constructions Pty Ltd v Sutherland Shire Council at [105].
5. Mr O'Shanassy submitted that any penalty imposed did not need to act as a specific deterrent. This was because of the "devastating" financial consequences his offending had had on him which included the potential loss of over $2 million resulting from the forced sale of Ballingarry, the expenditure of over $84,000 in remediation works, and the likely payment of approximately $300,000 by way of the council's legal costs. These losses, together with the fact that the property has now been sold, made it highly unlikely that he would be engaging in any further development.

Consistency in Sentencing

1. Another relevant consideration is the ascertainment of the existence of a general pattern of sentencing by the Court for offences such as the offences in question in these proceedings (Gittany at [179]-[182] and Rae at [69]).
2. The proper approach is for the Court to look at whether the sentence is within the range appropriate to the gravity of the particular offence having regard to the subjective circumstances of the particular offender, and not whether it is more severe or more lenient than some other sentence that forms part of that range (Gittany at [182] quoting R v Morgan (1993) 70 A Crim R 368 at 371).
3. Of course care must be taken because each case is different and a sentence imposed in one case does not demonstrate the limits of a sentencing judge's discretion, given the wide divergence of facts and circumstances leading to the imposition of specific penalties (Axer at 365; Cabonne Shire Council v Environment Protection Authority [2001] NSWCCA 280; (2001) 115 LGERA 304 at 312 and Hili v The Queen; Jones v The Queen [2010] HCA 45; (2010) 242 CLR 520 at [54]).
4. The pattern of sentencing against which the present case falls to be determined is established through an examination of the recent sentencing cases dealing with breaches of ss 76A(1)(a) and 125 of the EPAA, or, appropriately, analogous offences.
5. Neither party was able to point to a factually similar case to assist the Court in determining a coherent pattern of sentencing for the unlawful earthworks. Given the scope and scale of the excavation in issue, this is, perhaps, unsurprising.
6. In Port Macquarie-Hastings Council v Notley (No 2) [2013] NSWLEC 220, a case involving the erection of a house and associated excavation by an individual without development consent in contravention of s 76A(1)(a) of the EPAA, the Court observed (at [106]): 106 The cases demonstrate that penalties imposed by the court for first time offences of this type by an individual typically range between $7,000 to $60,000 depending on the mix of objective and subjective circumstances (see, for example, Kiama v Furlong [2009] NSWLEC 139; Naumcevski; Abroon (No 3) and Burwood Council v Doueihi [2013] NSWLEC 196).
7. This observation does not, however, preclude the Court from penalising an individual more than $60,000 or less than $7,000. Consistency in sentencing must not be treated as a mathematical exercise. As was opined by the High Court of Australian in Hili (at [49]): 49 The consistency that is sought is consistency in the application of the relevant legal principles … When it is said that the search is for "reasonable consistency", what is sought is the treatment of like cases alike, and different cases differently. Consistency of that kind is not capable of mathematical expression. It is not capable of expression in tabular form. …

Conclusion on Appropriate Penalty

1. Synthesising the objective circumstances of the two offences as mitigated by the subjective circumstances of Mr O'Shanassy, and having regard to the existing pattern of sentencing, I consider that the appropriate penalty for the commission of the offence is a monetary penalty.
2. The appropriate penalty for the offence as charged is a fine of $110,000 discounted by 15%. This results in a total monetary penalty in the sum of $93,500
3. Having assessed the amount of the fine that would otherwise be appropriate for the commission of the offence, it is necessary to determine whether Mr O'Shanassy has the financial capacity to pay the fine (s 6 of the Fines Act).
4. In the absence of any material that would support a finding that a substantial fine could impose a hardship on Mr O'Shanassy, I am unable to adjust the amount of the fine that I have determined is otherwise appropriate. Although Mr O'Shanassy was forced to sell Ballingarry by the mortgagee in possession for substantially less than envisaged by him, it is not known what, if any, impact this has on his capacity to pay a substantial fine. I therefore decline to take it into account.

Orders

1. For the reasons given above, the formal orders of the Court are that: 1. the defendant is convicted of the offence as charged; 2. the defendant is fined the sum of $93,500; 3. pursuant to s 257B of the Criminal Procedure Act 1986, the defendant is to pay the prosecutor's costs of the proceedings as agreed or as determined under s 257G of that Act; and 4. the exhibits are to be returned.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 21 August 2015