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[2025] NSWLEC 117
General information, not legal advice.
Land and Environment Court (NSW)
2025-10-17
Pain J
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Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: Woollahra Municipal Council v Neil Street Co Pty Ltd [2025] NSWLEC 117
Hearing dates: 24 September 2025
Date of orders: 17 October 2025
Decision date: 17 October 2025
Jurisdiction: Class 5
Before: Pain J
Decision: See [93]
Catchwords: SENTENCING – pleas of guilty to three charges of carrying out development without development consent on land owned by local council without council consent – development intentional – development improved amenity of neighbouring land – development included interference with council stormwater system – some environmental harm caused - no evidence of remorse – relevance of enforceable undertaking by company director in sentencing process for company considered – minimal discount for plea of guilty warranted – publication order made
Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A, 22, 23
Criminal Procedure Act 1986 (NSW), s 257B
Environmental Planning and Assessment Act 1979 (NSW), s 4.2, 9.5, 9.22, 9.52, 9.53, 9.56(1)
Environmental Planning and Assessment Regulation 2021 (NSW), s 295
Local Government Act 1993 (NSW), s 694
Protection of the Environment Operations Act 1997 (NSW), s 250
Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005 (NSW) (repealed), cll 62, 63
Woollahra Local Environmental Plan 2014, cl 6.2
Cases Cited: ACE Demolition & Excavation Pty Ltd v Environment Protection Authority (2024) 260 LGERA 358; [2024] NSWCCA 4
Axer Pty Ltd v Environment Protection Authority (1993) 113 LGERA 357
Bae v R [2020] NSWCCA 35
Bentley v BGP Properties Pty Ltd (2006) 145 LGERA 234; [2006] NSWLEC 34
Burwood Council v Erector Group Pty Ltd; Burwood Council v Liverpool Developing Pty Ltd [2017] NSWLEC 20
Camilleri’s Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683
Cumberland Council v Badaoui Habib [2017] NSWLEC 18
Director-General of the Department of Environment and Climate Change v Rae (2009) 168 LGERA 121; [2009] NSWLEC 137
Environment Protection Authority v Crown in the Right of New South Wales [2019] NSWLEC 178
Environment Protection Authority v Sydney Water Corporation [2023] NSWLEC 68
Environment Protection Authority v Waste Recycling and Processing Corporation (2006) 148 LGERA 299; [2006] NSWLEC 419
Fairfield City Council v Oztech Developments Pty Ltd [2021] NSWLEC 81
Garcia v R (2022) A Crim R 157; [2022] NSWCCA 172
Georges River Council v RNA Building Solutions Pty Ltd; Georges River Council v El Saadi [2024] NSWLEC 139
Gittany Constructions Pty Ltd v Sutherland Shire Council (2006) 145 LGERA 189; [2006] NSWLEC 242
Hili v R; Jones v R (2010) 242 CLR 520; [2010] HCA 45
Hoare v R (1989) 167 CLR 348; [1989] HCA 33
Johnson v R (2004) 78 ALJR 616; [2004] HCA 15
Markarian v R (2005) 228 CLR 357; [2005] HCA 25
Mill v R (1988) 166 CLR 59; [1988] HCA 70
Muldrock v R (2011) 244 CLR 120; [2011] HCA 39
Plath of Department of Environment and Climate Change v Fish; Plath of Department of Environment and Climate Change v Orogen Pty Ltd (2010) 179 LGERA 386; [2010] NSWLEC 144
Plath v Rawson (2009) 170 LGERA 253; [2009] NSWLEC 178
R v Araya (2005) 155 A Crim R 555; [2005] NSWCCA 283
R v Olbrich (1999) 199 CLR 270; [1999] HCA 54
R v Ruha (2010) 198 A Crim R 430; [2010] QCA 10
R v Rushby [1977] 1 NSWLR 594 at 597
R v Storey [1998] 1 VR 359
R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309
R v Visconti [1982] 2 NSWLR 104
Secretary, Department of Planning and Environment v Boggabri Coal Pty Limited [2014] NSWLEC 154
Veen v R (1979) 143 CLR 458; [1979] HCA 7
Veen v R (No 2) (1988) 164 CLR 465; [1988] HCA 14
Texts Cited: NSW Department of Planning, Industry and Environment, Enforceable Undertakings Guideline (July 2020)
Category: Sentence
Parties: Woollahra Municipal Council (Prosecutor)
Neil Street Co Pty Ltd (Defendant)
Representation: Counsel:
P English and E Dunlop (Prosecutor)
B Anniwell (Defendant)
Solicitors:
Woollahra Municipal Council (Prosecutor)
Mills Oakley (Defendant)
File Number(s): 2023/451459, 2023/451460, 2023/451461
Publication restriction: Nil
Agreed Statement of Facts on Liability
Further agreed statement of facts on sentence
Second further agreed statement of facts on sentence
Terms of Enforceable Undertaking (EU)
Purposes of sentencing
Objective circumstances
The nature of the offence
Maximum penalty
State of mind and reasons for the offence
Environmental harm caused or likely to be caused by the offences
Harm was reasonably foreseeable
Practical measures to prevent the harm
Offences not committed for financial gain
Control over the causes of harm to the environment
Finding on objective seriousness
Subjective factors
Injury, loss or damage not substantial, s 21A(3)(a)
Mitigation of environmental harm
Discount for early guilty plea, ss 21A(3)(k), 22
Co-operation with Prosecutor, ss 21A(3)(m), 23
Likelihood of reoffending, s 21A(3)(g)
Insight into offending
Good character of defendant, s 21A(3)(f)
Remorse and contrition, s 21A(3)(i)
Deterrence, s 3A(b) CSP Act
Specific deterrence
Retribution and denunciation, s 3A(a), (f) CSP Act
Even-handedness in sentencing
Georges River Council v RNA Building Solutions Pty Ltd; Georges River Council v El Saadi [2024] NSWLEC 139
Secretary, Department of Planning and Environment v Boggabri Coal Pty Limited [2014] NSWLEC 154
Fairfield City Council v Oztech Developments Pty Ltd [2021] NSWLEC 81
Cumberland Council v Badaoui Habib [2017] NSWLEC 18
Burwood Council v Erector Group Pty Ltd; Burwood Council v Liverpool Developing Pty Ltd [2017] NSWLEC 20
Totality
Penalty
Additional Order
Publication order
Costs
Order
On 31 March 2025, the Defendant entered pleas of guilty to three offences committed contrary to s 4.2(1) of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act). The Defendant is Neil Street Co Pty Ltd.
Mr Tavakoli is the sole director and shareholder of the Defendant. He is also the sole director and shareholder of a related company, Landmark Group Australia Pty Ltd. Mr Tavakoli’s wife Ms Jeihooni is the registered proprietor of a property on Bayview Hill Road Rose Bay (the Residence). The three offences arise from work carried out on neighbouring land being an unformed public road at the end of Bayview Hill Road abutting Port Jackson (the Land) which is under the care and control of the Prosecutor Woollahra Municipal Council (the Council).
The amended summons in proceedings 2023/451461 has an offence period from about 11 May 2021 to 14 January 2022 (charge 1). The further amended summons in proceedings 2023/451460 has an offence period from about 11 May 2021 to 8 September 2022 (charge 2). The further amended summons in proceedings 2023/451459 has an offence period from about 11 May 2021 to 14 January 2022 (charge 3).
Section 4.2(1) of the EPA Act requires that if an environmental planning instrument provides that specified development may not be carried out except with development consent, a person must not carry out the development 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.
A plea of guilty is an admission of all the essential elements of an offence. The offences are strict liability and no mental element forms part of these. The Council must establish beyond reasonable doubt any matter not otherwise agreed for the purpose of sentencing; R v Olbrich (1999) 199 CLR 270; [1999] HCA 54 at [27] (Gleeson CJ, Gaudron, Hayne and Callinan JJ) citing R v Storey [1998] 1 VR 359 at 369 (Winneke P, Brooking and Hayne JJA and Southwell AJA). The Defendant must establish matters on which it relies in mitigation on the balance of probabilities.
The parties agreed that the evidence in one charge is evidence in all of the charges.
The land the subject of the offences
7 The development the subject of the offences occurred on land identified as follows:
The land, owned by Woollahra Council (Council), comprising an unformed area of Bayview Hill Road, Rose Bay NSW, bounded by:
1. The southern boundary of 8 Bayview Hill Road, Rose Bay;
2. The mean low water mark of Port Jackson;
3. The northern boundary of the Residence; and
4. The western edge of the public lookout adjacent to the Residence.
(Land)
8 The land is shown on the diagram below prepared by the Defendant’s registered surveyor. A yellow box has been added to a Norton Survey Partners Sketch dated 29 November 2022 to identify the area subject of the offences within the Land.
9 The Land forms part of Bayview Hill Road, Rose Bay.
10 Under the Roads Act 1993 (NSW), Council is the “roads authority” for Bayview Hill Road. Bayview Hill Road is vested in fee simple in the Council.
Development the subject of the offences
11 The development the subject of each of the three offences is identified below:
Charge 1:
(i) Wall 1 – Construction of a retaining wall adjacent to the southern boundary of the Land to the rear of the dwelling and landscaped area of the Residence:
(a) measuring approximately between 4600mm and 1600mm in height, descending down the slope of the Land from east to west and then turning 90 degrees to the north to traverse from the Land from south to north at an approximate height of 1650mm; and
(b) constructed of 300mm sandstone blocks with a sediment medium behind.
Charge 2:
(ii) Walls 2 and 3 and Earthworks – Construction of a retaining wall/sea wall which returned east to west between the north western edge of Wall 1 and Port Jackson:
(a) measuring approximately 1600mm to 1500mm high; and
(b) constructed with irregular shaped sandstone pieces with a sediment medium behind (Wall 2);
AND
Construction of a sea wall running north to south from the western return of Wall 2, adjacent to the mean high watermark of Port Jackson:
(a) measuring approximately between 2900mm and 2400mm above the natural rock shelf of Port Jackson; and
(b) constructed with irregular shaped sandstone pieces with a sediment medium behind (Wall 3);
AND
Carrying out of “earthworks” in the area encompassed by Wall 2 to the north, Wall 3 to the west, the northern boundary of the Residence, and Wall 1 to the east, by filling the Land to raise the level of the Land by approximately 3000mm-3500mm above Port Jackson, and generally at the same level as the rear landscaped area of the Residence (Earthworks).
Charge 3:
(iii) Works 1 and 2 – Construction of two storm water pits located adjacent to the top of Wall 1 in the area where Wall 1 travels from south to north (Work 1);
AND
Construction of two storm water pipes travelling from the pits located adjacent to the top of Wall 1 through to Wall 2 (Work 2).
12 A sketch from Norton Survey Partners more clearly depicting the northern boundary of the Residence, Walls 1-3, the Earthworks and Works 1-2 is set out below:
State of the Land prior to the carrying out of development
13 A “Plan Showing Selected Details & Levels” prepared by Norton Survey Partners dated 18 July 2017 depicts the Land, including a “Stone Retaining Wall” running northeast and north from the northern point of the stone sea wall and connecting to the concrete slab at the base of the metal stairs of the Sydney Water Asset. Sheets 3 and 4 of that plan is at Tab 16.
14 The following images depict the Land prior to the offence periods:
a. Photograph taken by Brett Daintry on 7 November 2017 standing on the Sydney Water Asset adjacent to the Land looking south - Tab 1;
b. Photograph taken by Council officer Zubin Marolia on or about 16 November 2017:
i. standing in Port Jackson at low tide looking south east - Tab 2;
and;
ii. a zoomed-in copy of the photo at Tab 2, focussed on the unformed land and vegetation between the northern point of the stone sea wall and the concrete slab at the base of the metal stairs of the Sydney Water Asset -Tab 17.
c. Photograph taken on or around 27 November 2017 (and submitted by Ms Jeihooni with a development application for the Residence) from Port Jackson looking east - Tab 3.
15 A “Site Analysis” prepared by the architectural firm Burley Katon Halliday (BKH) dated 17 November 2017 depicts the Land with references to “stormwater overflow” and “overgrown landscape”. An excerpt of the Site Analysis Plan is at Tab 4.
Images showing the development the subject of the offences
16 The following Nearmap images show the progress of the development relating to the walls, works and earthworks the subject the of offences:
a. Nearmap image 1 June 2020 - Tab 5;
b. Nearmap image 31 May 2021- Tab 6;
c. Nearmap image 6 August 2021 - Tab 7;
d. Nearmap image 4 October 2021 - Tab 8; and
e. Nearmap image 21 December 2021 - Tab 9;
17 The following images depict the Land during or after the offence periods:
a. Images taken by Council officer Caroline Tunney on 8 September 2022 - Tab 10;
b. Images taken by Council officer Craig Jenner on 17 April 2023 -Tab 11; and
c. Nearmap image 9 January 2023 - Tab 12.
Works carried out without development consent
18 Three environmental planning instruments applied to the Land during the offence periods:
a. Woollahra Local Environmental Plan 2014 (LEP);
b. Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005 (SREP); and
c. State Environmental Planning Policy (Biodiversity and Conservation) 2021 (SEPP).
19 The LEP was in force throughout the offence periods (being 11 May 2021-8 September 2022). The SREP was in force at the start of the offence periods (being 11 May 2021) but was repealed on 28 February 2022. The SEPP was not in force at the start of the offence periods (being 11 May 2021) but commenced on 1 March 2022.
20 Each of the forms of development the subject of the three offences were only permitted with consent:
Charge 1:
a. Wall 1: Permitted with consent: LEP, cl 2.3 and 6.2 and SREP, cl. 62;
Charge 2:
a. Wall 2: Permitted with consent: LEP, cl. 2.3 and 6.2 and SREP, cl. 18 and 62;
b. Wall 3: Permitted with consent: SREP, cl. 18 and 62;
c. Earthworks:
i. Before 1 March 2022: Permitted with consent: LEP, cl. 2.3 and 6.2 and SREP, cl. 18 and 62;
ii. After 1 March 2022: Permitted with consent: LEP, cl. 2.3 and 6.2.
Charge 3:
a. Works 1 and 2 (Stormwater works): Permitted with consent: LEP, cl. 2.3 and SREP, cl. 18 (Work 2 only) and 62.
Development Applications relating to the Residence
21 On 7 December 2017, a development application relating to the Residence was lodged on behalf of Ms Jeihooni with Council (DA 2017/605/1). DA 2017/605/1 sought consent for “[d]emolition of existing dwelling and construction of a new dwelling house, swimming pool, and landscape works. Also includes upgrade of publicly accessible stairs and lookout to accommodate proposed garage and entry.” Consent was granted on 7 August 2019. No construction certificate was ever issued under this development consent.
22 On 5 July 2018, Mr Tavakoli’s town planner, Michael Neustein of City Planning Works, prepared and signed a letter to Council stating that DA 2017/605/1 would be amended to “delete the proposed public domain works” to the stairs and lookout on Bayview Hill Road.
23 On 23 November 2018, a second development application relating to the Residence was lodged on behalf of Ms Jeihooni with Council (DA/2018/510/1). The application included plans for the reconstruction of the public stairway on Council land prepared by NB Consulting Engineers (the Upper Level Works). Ms Jeihooni was listed as the owner builder in the application. Consent was granted on 6 November 2019 in Jeihooni v Woollahra Municipal Council (2019) NSWLEC 1539 for “demolition of existing dwelling house, construction of a new dwelling house, swimming pool, landscape works, publicly accessible stairs and lookout to accommodate proposed garage entry at 4 and 6 Bayview Hill Road” (Consent).
24 A copy of the Consent is at Tab 13. A copy of the stamped plans approved for the Consent is at Tab 14.
25 Ms Jeihooni had little, if any, engagement in the development application process.
26 The Consent was modified on three occasions in the period from 4 September 2020 to 31 March 2023.
27 No consent was granted, with respect to DA 2018/510/1 or otherwise, approving any works on the Land.
Construction of the approved development
28 BKH was engaged to prepare plans for the purposes of the approved development at the Residence.
29 On 30 January 2020, Zed Certifiers issued the Stage 1 Construction Certificate 1091/2016.
30 On 11 March 2020, Zed Certifiers issued a Stage 2 Construction Certificate.
31 The project manager assigned to carry out the approved development at the Residence on behalf of the Defendant was Elias Trassieh.
32 Mr Trassieh reported directly to Mr Tavakoli in respect of the development carried out by the Defendant at the Residence.
Admissions made by or on behalf of the Defendant
33 On 22 June 2022, Mr Trassieh wrote to Council officer Yasas De Silva in response to a request for information which included a request for “a statement of intention on the utilisation of road reserve land and why fencing won’t be reinstated as mentioned during our phone conversation” (item 4). Mr Trassieh’s email included a “statement to address item 4”:
“This portion of road reserve has historically been occupied by derelict landscaping which has been neglected likely due to its inaccessibility for safe and routine maintenance. The intention is to replant this area at the Landowner’s expense to create a significantly improved landscaped setting which celebrates the significance of the Hermitage Foreshore walk as viewed from Sydney Harbour and the adjoining lookout.
To ensure that the new landscaped area is routinely maintained, the Landowner will require access to this portion of road reserve from within the Landowner’s property, as the alternative (being access via the narrow staircase leading to Sydney Water’s assets) does not provide safe passage to this area. A boundary fence will prohibit the ability to safely access and maintain the newly landscaped area, which will undermine the objective of repurposing the landscaping in this area. Enabling the Landowner’s safe access to this area for ongoing maintenance is in the best interests of the both the Council and the public.”
34 On 8 September 2022, Mr De Silva attended the site for the purpose of an inspection of the works undertaken at the Land with fellow Council officer Caroline Tunney.
35 Council officers conducted a further inspection of the Land on 20 March 2023.
Enforceable Undertaking given by Mr Tavakoli
36 An Enforceable Undertaking (EU) signed by Mr Tavakoli under Section 9.5 of the EPA Act on 13 March 2025 is at Tab 15.
37 In the EU, Mr Tavakoli:
a. admits to intentionally aiding, abetting, counselling or procuring the Defendant to carry out the works the subject of the offences with knowledge that each of the works was carried out in the absence of development consent, contrary to s 4.2(1)(a) of the EPA Act;
b. acknowledges the community impacts which arise from breaches of the EPA Act, including harm to the regulatory scheme which establishes an orderly method for the obtaining of planning approvals prior to carrying out development;
c. undertakes not to commit like conduct on the Land in the future;
d. undertakes to carry out remediation works, as depicted in the Concept Drawings annexed to the EU, to ameliorate the environmental and community impacts;
e. agrees to:
i. pay for and carry out remediation works (including obtaining all necessary consents and approvals) to prevent, control, abate or mitigate any harm to the environment caused by the commission of the offences and to make good any resulting environmental damage at a cost of $491,000;
ii. pay the costs of preparing the remediation plan in the amount of $52,000;
iii. pay a fixed contribution in the amount of $375,000 towards ongoing maintenance costs associated with the remediation works;
iv. pay the Prosecutor’s legal and investigation costs leading up to the date of the signing of the EU in the amount of $380,025; and
v. guarantee payment of any fines and the prosecutor’s legal costs ordered by the Court against the Defendant, and make pre-pay of such fines and legal costs in the amount of $250,000.
38 The amounts specified in [37(e)] above, in the total sum of $1,548,025, were paid by Landmark Construction Australia Pty Ltd to the Council on 26 March 2025.
Arash Tavakoli made the following admissions on behalf of the Defendant:
a. At a site inspection on 8 September 2022, Mr Tavakoli walked over to Council officers Yasas De Silva and Caroline Tunney and said “what are you doing here? I am the landowner*”.* Mr De Silva replied “I am from Council. Who are you?”. Mr Tavakoli replied, *“*I am the landowner”. Mr De Silva said: *“we are inspecting the encroachments on Council land”.* Mr Tavakoli then said:
“I am making the area whole as it had previously collapsed… we are doing you a favour and we are fixing your land. The embankment collapsed and I have a family”.
b. At a site inspection on 20 March 2023, Mr Tavakoli said to Mr De Silva, in the presence of Council officers and his lawyers:
“you gave us a difficult time approving the works at the top area. I need to improve my frontage verge. This area was overgrown and neglected. Why is Council complaining, I have done a favour to you.”
c. During this inspection on 20 March 2023, Council’s Manager for Legal, Compliance and Enforcement, Rosemary Bullmore, heard Mr Tavakoli say the following:
“We have made this better for you and you should thank us. This is like landscaping your garden verge, how is it any different?”
Maps were provided by parties in a second further agreed statement of facts on sentence which showed:
Woollahra Local Environmental Plan 2014 (NSW) Land Zoning Map Sheet LCN_005, showing the Land as zoned R2;
approximate location of the offending works overlaid onto combined Land Zoning Map;
Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005 (NSW) (SREP) Sydney Harbour Catchment Map, showing the Land is subject to the SREP;
SREP Wetlands Protection Area Map.
The Defendant relied extensively on the terms of the EU dated 13 March 2025 agreed by its sole director Mr Tavakoli with the Council and the Secretary of the Department of Planning, Housing and Infrastructure (Planning Secretary) pursuant to s 9.5 of the EPA Act referred to at pars 36-38 of the SOAF. A consequence of Mr Tavakoli entering into the EU was that the Council withdrew five charges against him, a substantial benefit. I am not aware of another case in this Court, and nor were the parties, where a defendant has not brought forward direct evidence such as an affidavit which can be tested in the sentencing process and sought to rely entirely on the terms of an EU agreed with a prosecutor, here the Council, and the Planning Secretary.
Under s 9.5(1) the Planning Secretary may accept a written undertaking given by a person for the purposes of the section in connection with a matter in relation to which the Planning Secretary or a public authority has a function under the EPA Act.
The key provisions relied on are summarised above in the SOAF at par 37(a)‑(e) whereby Mr Tavakoli made various admissions in relation to carrying out the offences and acknowledged the community impact of the offences. He has undertaken to do remediation works as specified in the EU, pay for those works in the amount of $491,000, pay the costs of preparing a remediation plan of $52,000 and pay a fixed contribution of $375,000 towards ongoing maintenance costs associated with the remediation works and legal costs.
The Defendant tendered a bundle of photographs showing the Residence and the Land (Exhibit 1).
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.
Section 21A of the CSP Act identifies numerous matters which a court must take into account if relevant when sentencing including in relation to aggravating (s 21A(2)) and mitigating (s 21A(3)) factors.
In reaching a decision on the appropriate penalty, the Court’s consideration of the subjective and the objective circumstances of the offence is informed by the context of the relevant legislative framework aimed at environmental protection; see eg Director-General of the Department of Environment and Climate Change v Rae (2009) 168 LGERA 121; [2009] NSWLEC 137 at [15].
(a) the nature of the offences; (b) the maximum penalties for the offences; (c) the harm caused to the environment by commission of the offences; (d) the state of mind of the offender in committing the offences; (e) the offender’s reasons for committing the offences; (f) the foreseeable risk of harm to the environment by commission of the offences; (g) the practical measures to avoid harm to the environment; and (h) the offender’s control over the causes of harm to the environment.
One of the important purposes of the EPA Act, to ensure the orderly development of land, is undermined if development which requires development consent is carried out without that consent in breach of s 4.2(1)(a). By failing to seek development consent the necessary environmental impact assessment was not done before the work was carried out. Details of the environmental planning instruments which applied for much of the charge period follow.
Clause 62(1) of the now repealed SREP, which applied up to 28 February 2022 and is relevant to charges 1 and 3 and part of the charge period of charge 2, provided that development within a wetlands protection area could be carried out only with development consent. Clause 63(2) of the SREP contained the matters for consideration when considering an application for development consent in a wetlands protection area, and provided as follows:
(2) The matters to be taken into consideration in relation to any development are as follows—
(a) the development should have a neutral or beneficial effect on the quality of water entering the waterways,
(b) the environmental effects of the development, including effects on—
(i) the growth of native plant communities,
(ii) the survival of native wildlife populations,
(iii) the provision and quality of habitats for both indigenous and migratory species,
(iv) the surface and groundwater characteristics of the site on which the development is proposed to be carried out and of the surrounding areas, including salinity and water quality and whether the wetland ecosystems are groundwater dependent,
(c) whether adequate safeguards and rehabilitation measures have been, or will be, made to protect the environment,
(d) whether carrying out the development would be consistent with the principles set out in The NSW Wetlands Management Policy (as published in March 1996 by the then Department of Land and Water Conservation),
(e) whether the development adequately preserves and enhances local native vegetation,
(f) whether the development application adequately demonstrates—
(i) how the direct and indirect impacts of the development will preserve and enhance wetlands, and
(ii) how the development will preserve and enhance the continuity and integrity of the wetlands, and
(iii) how soil erosion and siltation will be minimised both while the development is being carried out and after it is completed, and
(iv) how appropriate on-site measures are to be implemented to ensure that the intertidal zone is kept free from pollutants arising from the development, and
(v) that the nutrient levels in the wetlands do not increase as a consequence of the development, and
(vi) that stands of vegetation (both terrestrial and aquatic) are protected or rehabilitated, and
(vii) that the development minimises physical damage to aquatic ecological communities, and
(viii) that the development does not cause physical damage to aquatic ecological communities,
(g) whether conditions should be imposed on the carrying out of the development requiring the carrying out of works to preserve or enhance the value of any surrounding wetlands.
6.2 Earthworks
…
(3) In deciding whether to grant development consent for earthworks and associated construction dewatering (or for development involving ancillary earthworks), the consent authority must consider the following matters—
(a) the likely disruption of, or any detrimental effect on, drainage patterns and soil stability in the locality of the development,
(b) the effect of the development on the likely future use or redevelopment of the land,
(c) the quality of the fill or the soil to be excavated, or both,
(d) the effect of the development on the existing and likely amenity and structural integrity of surrounding properties,
(e) the source of any fill material and the destination of any excavated material,
(f) the likelihood of disturbing relics,
(g) the proximity to, and potential for adverse impacts on, any waterway, drinking water catchment or environmentally sensitive area,
(h) any appropriate measures proposed to avoid, minimise or mitigate the impacts of the development.
A Tier 2 penalty applies to each of these three offences being breaches of s 4.2(1) of the EPA Act (read with s 9.52(2)-(3)). The maximum penalty in the case of a corporation is $2 million (s 9.53(1) EPA Act) for each offence.
The maximum penalty is a public expression by Parliament (and, by extension, the general community) of the seriousness of the offence. The maximum penalty serves as a yardstick and a basis for the comparison between the case before the court and the worst case; Markarian v R (2005) 228 CLR 357; [2005] HCA 25 at [31] (Gleeson CJ, Gummow, Hayne and Callinan JJ). The gravity of any particular offence should be measured by reference to the range of penalty available; Camilleri*’s Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 (Camilleri’*s) at 698 (Kirby P, Campbell and James JJ agreeing).
The Defendant’s state of mind at the time an offence was committed can be relevant to determining the objective seriousness of the offences. An offence committed deliberately will be regarded as objectively more serious than one where the offence resulted from an accident; see Gittany Constructions Pty Ltd v Sutherland Shire Council (2006) 145 LGERA 189; [2006] NSWLEC 242 at [123]. The Defendant accepted through its sole director Mr Tavakoli that the offences were conducted intentionally, which increases their objective seriousness.
As to reasons for the offences being committed, there is no direct evidence such as an affidavit from the Defendant’s director Mr Tavakoli as to why he deliberately caused the Defendant to carry out the offences. The statement of Mr Trassieh Council employee was included in the SOAF. Additional agreed facts (Exhibit C, above in [8]) were tendered which contained statements made by Mr Tavakoli to Council officers who attended the Land on 8 September 2022 and 20 March 2023. Mr Tavakoli’s statements were not able to be tested in the sentencing hearing. These statements were submitted to be the reasons why Mr Tavakoli caused the Defendant to do the work. The Defendant submitted the evidence indicated the reasons for the offences were to improve neglected and overgrown landscaping, provide safe access for ongoing maintenance, improve the frontage verge of the Residence and attend to a collapsed embankment which caused Mr Tavakoli concern for the safety of his family living in the adjacent Residence. It is not apparent from the statements where the alleged collapsed embankment was located. At issue is whether these statements can be given any weight in these circumstances.
This is a case where a picture paints a thousand words when the before photographs (above in the SOAF) and after photographs 9 and 10 in evidence below in [27] at para 19 are viewed. Where there was previously no obvious wall located at the mean high water mark of Port Jackson on the Land and trees and other vegetation were visible from Port Jackson, after the work the subject of the three charges a substantial sea wall of nearly three metres height (Wall 3) and several metres in length was constructed of sandstone in line with the sea wall of the Residence on Port Jackson, two stormwater pipes protrude from the middle of the sea wall and substantial fill of about 3 to 5 metres depth (Earthworks) placed behind Wall 3 on the Land has brought the surface of the Land level with the surface of the Residence frontage. The additional area of fill placed on the Land was grassed and presents as a continuous extension of the frontage of the Residence. A low picket fence is depicted in some photographs which I was informed was movable. The Defendant accepted that the amenity of the Residence was improved. Given the clear photographic evidence the Defendant’s submissions suggesting there were reasons other than improving the amenity of the Residence were self-serving at best and I do not give them any weight.
The state of mind of the Defendant’s director and the reasons for the work render the offences objectively more serious.
Harm caused by the commission of the offences
Stormwater Infrastructure
7 Council owns, and is responsible for the maintenance of, certain infrastructure in and around the public lookout area on the formed portion of Bayview Hill Road Rose Bay, and on the Land. This includes two stormwater drainage pipes (Council’s northern and southern stormwater drainage pipes) which run down slope from east to west over the Land from, respectively, two pits (Council’s northern and southern kerb inlet pits) located in the kerb inlet within Bayview Hill Road. Each of Council’s northern and southern stormwater drainage pipes has a diameter of 600mm.
8 The location of Council’s northern and southern stormwater drainage pipes and the Council’s Northern and Southern kerb inlet pits has been marked on the pipe trace diagram prepared by Woollahra Municipal Council below:
9 The northern and southern Work 2 stormwater pipes which the Defendant connected, respectively, to the northern and southern Work 1 stormwater pits each have a diameter of 450 mm.
10 The Defendant connected Council’s 600mm northern and southern stormwater drainage pipes to the Work 1 stormwater pits.
Repair of Council’s southern stormwater drainage pipe on 2 April 2024
11 On 2 April 2024, Council repaired part of the southern stormwater drainage pipe, which had been leaking, with chicken wire and cement render. Photos 1 and 2 below, taken on 2 April 2024, depict the repaired section of Council’s southern stormwater drainage pipe:
Rainfall events on 5 and 6 April 2024
12 Following rainfall events on 5 and 6 April 2024, the drainage system on and within the Land and in the formed portion of Bayview Hill Road surcharged and overflowed causing erosion to the central portion of the Land. Photos 3 and 4 depicting this surcharge event on the Land and 4-6 Bayview Hill Road (the Residence) are below:
13 Photos 5 and 6 depict water flowing out of Council’s damaged southern stormwater drainage pipe on or around 5 April 2024 are below.
14 This surcharge of the system was most likely due to the inadequate undersized 450 mm Work 2 outlet pipes.
15 The surcharge of the system also led to the northern stormwater pit lid (Work 1) and Council’s northern kerb inlet pit lid being dislodged on 5 April 2024, which are depicted in Photos 7 and 8 below:
16 The southern stormwater pit lid (Work 2) and Council’s southern kerb inlet pit lid remained sealed. No damage was caused to Council’s northern curb pit lid.
Risk if works are not remediated
17 Works 1 and 2 are unsatisfactory and, if not remediated, are likely to fail and cause risk to the public over their expected 20-year lifetime.
18 In storm event equal to and larger than a 5 year Average Recurrence Interval (ARI) storm, the connection of each of the 450 mm stormwater pipes (Work 2) downstream of Council’s 600 mm northern and southern stormwater drainage pipes will, if not remediated, cause upstream flows that will either surcharge, or back up, due to the lack of upstream discharge capacity.
19 Photos 9 and 10 below depict the Work 2 stormwater pipes and Wall 3. In a 5 year ARI storm, the jet of water discharging from the Work 2 outlet pipes into Sydney harbour at Rose Bay will land approximately 3.7 m from the Wall 3 sea wall. This creates a very high risk environment for any member of the public or emergency services attempting to traverse the waterfront below Wall 3.
Agreed remediation works to ameliorate harm
20 An Enforceable Undertaking (EU) was signed by Arash Tavakoli, the sole director and shareholder of the Defendant, under Section 9.5 of the Environmental Planning and Assessment Act 1979 (NSW) on 13 March 2025. A copy of the EU is at Tab 15 of the bundle of agreed documents accompanying the Agreed Statement of Facts on Liability filed with the Court on 5 May 2025.
21 In the EU, Mr Tavakoli undertakes to carry out remediation works, as depicted in the Concept Drawings annexed to the EU, to ameliorate the environmental and community impacts. These works include:
a. replacing the two 450mm diameter pipes with 600mm pipes (Work 2) (Drawing 24-009C-10);
b. lowering the invert levels of the new pipes to near the level of the base of Wall 3 (Work 2), being IL 1.3m AHD (24-009C-11/24);
c. reconstructing the Work 1 northern pit to ensure that the upstream 600mm diameter pipe entry into the pit is made structurally sound (Drawing 24-009C-11); and
d. reconstructing the Work 1 northern and southern pits to ensure their penetrations are sealed with epoxy or grout (Drawing 24-009C-11)
(together, the Remediation Works).
22 The Remediation Works will rectify the risk of environmental harm through the following means:
a. the drop of invert level of the discharge pipe through the sea wall (Wall 3) will ensure that the water flows do not erode the rocks; and
b. the revetment rock mattress downstream of Wall 1 will ensure that any overland flows will not erode the soil and carry suspended material and soil deposits into the receiving water.
23 In the EU, Mr Tavakoli also agrees to:
a. pay for and carry out remediation works (including obtaining all necessary consents and approvals) to prevent, control, abate or mitigate any harm to the environment caused by the commission of the offences and to make good any resulting environmental damage at a cost of $491,000;
b. pay the costs of preparing the remediation plan in the amount of $52,000; and
c. pay a fixed contribution in the amount of $375,000 towards ongoing maintenance costs associated with the remediation works.
The environmental damage resulted from the Defendant installing stormwater pipes that were too small and connecting these to the Council’s stormwater system on the Land. The Council submitted the harm to the stormwater system was foreseeable, applying an objective test of a reasonable, competent builder given that the Defendant is a construction company which was capable of demolishing an existing building and building the large Residence on the adjoining land. It had the workforce to undertake that substantial project and that workforce was engaged to do the unlawful works. A reduction in pipe size of 25%, by connecting a 450 mm diameter pipe down gradient from a stormwater pipe 600 mm in diameter, was self-evidently inadequate.
The Defendant submitted that the Council bore the onus of establishing that any harm caused was reasonably foreseeable and had not provided evidence to do so. The installation of stormwater pipes requires specialist knowledge, such as the experts consulted by the parties, and the Defendant could not reasonably be expected to have that knowledge and therefore be aware of the potential for harm arising in relation to the Council’s stormwater system. The Council did not bring forward evidence suggesting that installation of the stormwater pipes was negligent. Consequently the Council did not establish beyond reasonable doubt that the harm was reasonably foreseeable.
The Defendant is a construction company capable of undertaking large building projects in which the management of stormwater would be considered as a matter of course. Applying an objective standard, a reasonable, competent builder would consider that connecting a smaller pipe downhill of a larger pipe could lead to stormwater disposal problems, a matter that is self-evident.
The elevated location of the stormwater pipes protruding from the sea wall on the land above the foreshore which creates a risk to the public in a 5-year ARI storm with a jet of water likely to discharge several metres from the Work 2 outlet pipes is also a self-evident risk to a reasonable, competent builder.
Expert stormwater evidence is not required in order for the Council to make good its submission. Indifference to the possibility of harm arising from an obvious risk does not mean that the harm caused was not foreseeable. The harm caused was foreseeable.
The Defendant was not alleged to have committed the offences for financial gain.
The Defendant emphasised that there were no aggravating factors as identified in s 21A(2) relevant to the offences.
The parties submitted the objective seriousness of the offences was in the low range of objective seriousness. Considering all the factors identified above I find the objective seriousness of the offences is as follows:
for charge 1 (Wall 1) high range of low objective seriousness;
for charge 2 (Walls 2 and 3 and Earthworks) high range of low objective seriousness;
for charge 3 (Works 1 and 2), which gave rise to environmental harm that was foreseeable, medium objective seriousness.
The Defendant relied extensively on the terms of the EU entered into by Mr Tavakoli to argue it has made substantial efforts to mitigate the environmental harm caused. As set out in the EU Mr Tavakoli agreed to pay for and remediate works to prevent and control environmental harm caused by the commission of the offence and make good any resulting environmental damage at a cost of about $491,000. The work agreed to be undertaken after obtaining development consent for the remediation works depicted in the Concept Drawings annexed to the EU included replacing the smaller stormwater pipes with larger pipes, lowering the invert levels of the new pipes to near the level of the base of Wall 3, and reconstructing the Work 1 northern pit to ensure that the upstream 600mm diameter pipe entry into the pit is made structurally sound inter alia. Mr Tavakoli also agreed to pay the costs of preparing a remediation plan in the amount of $52,000 and a fixed amount of $375,000 towards ongoing maintenance costs associated with the remediation works.
The Defendant emphasised the amount of work agreed to be undertaken and its cost. As the Prosecutor submitted, these costs are being incurred to address the harm caused by the offences which were committed deliberately. I accept the work to be undertaken will mitigate the environmental harm caused.
An early plea of guilty may entitle a Defendant to a discount in penalty in the range of 10-25%; R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309 at [160] (Spigelman CJ, Wood CJ at CL, Foster AJA, Grove and James JJ agreeing). This range is intended to be a guide only. It does not create a presumption or entitlement to a particular discount in a given situation; R v Araya (2005) 155 A Crim R 555; [2005] NSWCCA 283 at [44] (Johnson J, Simpson and Rothman JJ agreeing). The parties disagreed about the appropriate discount which should be applied.
Multiple (ten) proceedings were commenced on 13 December 2023 by the Council. Five charges were commenced in relation to the Defendant and five were in relation to its sole director Mr Tavakoli. Both Defendants pleaded not guilty to all charges on 6 September 2024. On 6 September 2024 all charges were listed for a ten-day hearing on liability commencing on 24 March 2025.
I was informed that the first meeting regarding negotiation of an EU took place on 11 September 2024. The EU was signed on 13 March 2025. On 21 March 2025 the first five days of the hearing, being 24-28 March 2025, were vacated by consent and the proceedings were stood over to 31 March 2025.
On 31 March 2025 orders were made granting leave to the Council to further amend the amended summons in two matters (2023/451459, 2023/451460). Two charges in relation to the Defendant were withdrawn. The Defendant entered pleas of guilty to the remaining three charges. The five charges in relation to Mr Tavakoli were withdrawn. The remaining hearing dates in relation to liability were vacated.
The Council submitted that a discount of at most 10% is warranted in the circumstances given the plea occurred after what was to be the first day for hearing and the hearing was not to be especially complex, relying on Garcia v R (2022) A Crim R 157; [2022] NSWCCA 172 at [98] (Garcia), quoting Bae v R [2020] NSWCCA 35 (Bae) at [49]-[60].
The Defendant submitted that its pleas of guilty were entered immediately after the Council amended some charges and withdrew others and following a lengthy and complex negotiation between the parties with respect to the EU. Throughout 2024 and 2025 the parties engaged in negotiations for the EU which led to an undertaking being given by Mr Tavakoli and approved by the Planning Secretary. At the time that negotiations were taking place, the NSW Department of Planning, Industry and Environment’s Enforceable Undertakings Guideline (July 2020) (Guideline) was in force. The Guideline stated that ‘investigations and legal proceedings will continue until a proposed enforceable undertaking is accepted’. The Defendant entered pleas of guilty to the amended charges at its first available opportunity. In doing so, the hearing on liability was spared, reflecting significant utilitarian value to the administration of justice. The Defendant submitted it is entitled to the maximum discount of 25% in acknowledgment of the utilitarian values of those pleas, relying on Georges River Council v RNA Building Solutions Pty Ltd; Georges River Council v El Saadi [2024] NSWLEC 139 (El Saadi) at [64] where Preston CJ considered that a 25% discount could be applied where a defendant pleaded guilty promptly after amended charges were provided by a prosecutor some eight months after proceedings were commenced.
Finding on extent of discount for plea****s of guilty
The authorities quoted in Bae at [49]-[60] extracted in Garcia at [98], to which the Council referred, identify that a prime consideration in determining the extent of the discount for a guilty plea is to reflect the utilitarian value in costs saved by the State and the parties in not having to deal with a not guilty plea. The utilitarian value of a plea depends on its timing. R v Thomson is cited in Bae at [81], including Spigelman CJ at [155] identifying that a discount at the top of the 25% range would be restricted to pleas entered at the earliest possible opportunity and should not be given after a matter has been set down for trial in other than exceptional circumstances.
Ultimately each case must be determined in light of its own circumstances. One assumption in the Defendant’s submissions is that the negotiation of an EU is relevant to the timeline to be considered in relation to the entry of a guilty plea. A defendant deciding to negotiate voluntarily an EU as provided for by s 9.5 of the EPA Act is engaging in a separate process to a criminal prosecution as reflected in the Guideline referred to by the Defendant. I do not consider negotiation of an EU is relevant explanation for delay in pleading guilty to an offence in a criminal prosecution.
Even if relevant, the first meeting to commence negotiations of the EU was not held until 11 September 2024, nine months after the prosecutions were commenced. Negotiations took place over several months. The Defendants pleaded not guilty on 6 September 2024 and the matters were set down for a 10-day hearing on liability in March 2025. Noting that there were late amendments of charges in relation to the Defendant the overall criminality of the charges did not increase and essentially the original five charges were rationalised to three in March 2025. The pleas of guilty were entered just in time for a hearing on liability to be avoided with the hearing on liability being postponed to enable the EU to be finalised. Pleas of guilty were entered at the beginning of what would have been the second week of the liability hearing. At most a 10% discount will be allowed in light of these circumstances as pleas of guilty were not entered promptly in my view.
The offences were not self-reported. The Defendant relied on its co-operation in agreeing to the SOAF, agreed SOFH and additional agreed facts. In ACE Demolition & Excavation Pty Ltd v Environment Protection Authority (2024) 260 LGERA 358; [2024] NSWCCA 4 at [96]-[103] the Court of Criminal Appeal (Leeming JA, Garling and Cavanagh JJ agreeing) stated that reaching such agreement is not ordinarily relevant as a mitigating factor under subs (3)(m).
Reliance on complying with a statutory notice issued by the Council under s 9.22 of the EPA Act carries little weight given that compliance with that notice was required by the EPA Act.
A novel submission made so far as I am aware was purported reliance on the successful negotiation of the EU by Mr Tavakoli as supporting a finding of co‑operation with the Council by the corporate Defendant. Apart from the existence of the EU and the parties’ submissions from the bar table about the period of time over which the EU was negotiated I am unaware of the circumstances surrounding it. Mr Tavakoli obtained a substantial benefit as a result of entering into the EU which was that five criminal charges against him personally were discontinued on the basis of the agreement reached. As already noted above in [49]-[50], the negotiation of an EU is generally conducted entirely separately from a criminal prosecution and ultimately it remains in the discretion of the Planning Secretary, who is not the Prosecutor in these matters, as to whether an agreement is reached. I do not consider the agreement with the Defendant’s director of an EU with the benefit he obtained is evidence of co-operation by this Defendant with the Council in relation to the prosecutions before the Court.
Accordingly, there is little evidence to support a finding of co-operation with the Council in relation to the offences.
203 …The actions underlying genuine contrition and remorse may take at least four forms…
204 First, the speed and efficiency of action to rectify any harm caused or likely to continue to be caused by the commission of the offence is the clearest indication of contrition and remorse. Where it occurs it justifies a reduction in the sentence: Mickelberg v The Queen (1984) 13 A Crim R 365 at 370; s 21A(3)(i) of the Crimes (Sentencing Procedure) Act and R v United Keno Hill Mines Ltd (1980) 10 CELR 43 at [24]…
210 Secondly, voluntarily reporting the commission of the offence and any concomitant environmental harm to relevant authorities indicates a genuine desire to act responsibly. Environmental regulation depends upon the integrity of persons making full disclosure. Voluntarily reporting breaches should therefore be acknowledged as a mitigating circumstance by the courts in sentencing: R v United Keno Hill Mines Ltd at [24]…
212 Thirdly, the taking of action to address the causes of the offence, such as designing and installing improved pollution prevention and control systems, also indicates a genuine desire to act responsibly: *Camilleri’*s Stock Feeds Pty Ltd v Environment Protection Authority at 700-701; 38-39…
214 Fourthly, the personal appearance of corporate executives in court and their personal evidence outlining the company’s genuine regret and stating future plans to avoid repetition of such offences is an indication of genuine corporate contrition: R v United Keno Hill Mines Ltd at [26]; Environment Protection Authority v Port Kembla Copper Pty Ltd [2001] NSWLEC 223 (28 September 2001) at [28]. See also Environment Protection Authority v Coe Drilling Australia Pty Ltd [2005] NSWLEC 719 (5 December 2005) at [186]-[187] and Environment Protection Authority v Ballina Shire Council (5 May 2006) at [115].
Addressing these four factors, the Defendant did not report the offences to the Council. The EU under which remediation works are agreed to be carried out is dated 13 March 2025. The offences occurred in 2022. This timeframe for responding to the offences is lengthy and well after the event. The process agreed in the EU is ongoing.
There is no evidence of how the Defendant will avoid similar offences in the future.
Corporate defendants commonly present evidence of contrition through an affidavit of a director. Mr Tavakoli the sole director of the Defendant has not provided a sworn affidavit to the court expressing remorse on behalf of the Defendant and did not appear at the sentencing hearing. The Defendant’s counsel relied on the terms of the EU as the basis for submitting that the Defendant had expressed remorse and was contrite. It was submitted that the actions agreed under the EU to remediate the harm caused are comprehensive and substantial and Mr Tavakoli has agreed to pay substantial sums to achieve the agreed outcomes which demonstrate his (and by extension the Defendant’s) contrition. Relying on the EU the agreement of which resulted in charges against Mr Tavakoli being withdrawn is not probative of the Defendant’s contrition and remorse.
Late pleas of guilty do not support an expression of remorse in the absence of any other evidence. No relevant evidence of remorse of the Defendant for these offences is before the Court in this sentencing hearing.
There are few mitigating factors which can be considered for the benefit of the Defendant.
General deterrence is an important factor when imposing penalties for environmental offences; Bentley v BGP Properties Pty Ltd (2006) 145 LGERA 234; [2006] NSWLEC 34 at [139]; Axer Pty Ltd v Environment Protection Authority (1993) 113 LGERA 357 (Axer) at 367 (Badgery-Parker J). Nominal fines are insufficient for deterrence; Environment Protection Authority v Sydney Water Corporation [2023] NSWLEC 68 at [159] citing Axer at 359 (Mahoney AJA), 367 (Badgery-Parker J, Finlay J agreeing), Camilleri*’*s at 701 (Kirby P, Campbell and James JJ agreeing).
The sentence should operate as a powerful factor in preventing the commission of similar offences by persons who might be tempted to do so by the prospect that, if they are caught, only light punishment will be imposed; Plath of Department of Environment and Climate Change v Fish; Plath of Department of Environment and Climate Change v Orogen Pty Ltd (2010) 179 LGERA 386; [2010] NSWLEC 144 at [99] citing R v Rushby [1977] 1 NSWLR 594 at 597.
Specific deterrence as referred to in Veen v R (No 2) (1988) 164 CLR 465; [1988] HCA 14 (Veen (No 2)) at 477 (Mason CJ, Brennan, Dawson, Toohey JJ) refers to a defendant who displays ‘uncharacteristic aberration or whether the offender has manifested in his commission of the instant offence a continuing attitude of disobedience of the law’.
The Defendant submitted there is no need for specific deterrence to be reflected in the penalty given that it will unlikely reoffend on the Land and must comply with the full operational and economic weight of having to comply with the EU to remedy the offending conduct. The Defendant’s director is bound by the EU not the Defendant. Whether the cost of complying with the EU is a financial and operational weight on the Defendant is unknown in the absence of evidence about its financial position and operational capabilities in the context of the EU’s obligations placed on its director. As the Council submitted the Defendant is an active construction company of sufficient size to have capability to build the large-scale residential development at the Residence. Such characteristics ordinarily attract a need for specific deterrence. An element of specific deterrence is warranted.
The principle of even-handedness requires that the Court consider if there is any sentencing pattern for like offences in order to determine a consistent approach to penalty; R v Visconti [1982] 2 NSWLR 104 at 107 (Street CJ, Maxwell and Lee JJ agreeing). This principle must always be applied subject to the particular circumstances of the case before the Court; Hoare v R (1989) 167 CLR 348; [1989] HCA 33 at 354 (Mason CJ, Deane, Dawson, Toohey and McHugh JJ) (Hoare v R). The principle of even-handedness in sentencing so that like offences receive like sentences is recognised, but each case must be determined on its own facts; Hili v R; Jones v R (2010) 242 CLR 520; [2010] HCA 45 at [42] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ) quoting R v Ruha (2010) 198 A Crim R 430; [2010] QCA 10 at [47]. A history of sentencing in other cases does not limit my sentencing discretion.
Both parties provided numerous sentencing decisions for breaches of s 4.2 or its earlier equivalent but submitted none provide much assistance as the facts of this matter are unusual if not unique so that no other case had a similar factual basis. Both parties submitted there were no comparable cases which reflected the circumstances of this case where a construction company has built on land belonging to someone else without permission. Some of the cases referred to are summarised below.
RNA Building Solutions Pty Ltd (RNA) and Mr El Saadi were convicted of three offences each against ss 9.50(3A) (aiding, abetting, counselling or procuring another person to commit an offence against the EPA Act) and s 4.2(1)(b) (carrying out development otherwise than in accordance with a development consent) of the EPA Act. The offences related to demolition of an existing house, excavation of land and erection of a new house on property purchased by Mr El Saadi for use as a family home. The maximum penalty for the offences was $2 million in the case of a corporation and $500,000 in the case of an individual.
The Court found the objective seriousness of the offending to be in the low range, finding that the development was of a ‘smaller size and scale’. The Court did not take into account intentionality as state of mind was an element of the offence of secondary participation under s 9.50(3A) of the EPA Act. The offences did not cause and were not likely to cause harm to the environment. Mr El Saadi and RNA were each found to have had control over the causes of the offences, which increased the objective seriousness of the offences. It was not alleged the offences were committed for financial gain. RNA was fined $200,000 for each offence, to which a discount of 25% was applied. The amount of the fine was then adjusted to account for the totality principle and the close relationship between RNA and Mr El Saadi. Each defendant was ultimately fined, for each of the three offences, $18,750, $28,125, and $18,750 (total fine of $65,625) each.
Oztech Developments Pty Ltd (Oztech) was sentenced for offences under s 4.2(1) of the EPA Act. Bellagio Investments Pty Ltd (Bellagio) was sentenced for offences under ss 9.50(3A), 4.2(1) and s 9.37 of the EPA Act. The offences arose out of construction of six dwellings on land owned by Bellagio without obtaining required development consents. Oztech was the builder, or ‘principal contractor’ for the building work. Oztech and Bellagio were related companies, having the same sole director and company secretary.
The maximum penalty for the offences was $2 million with a daily recurring penalty of $20,000. The Court found the offences to be of medium objective seriousness. It was an agreed fact that the development did not cause any actual harm to the environment. The environmental harm caused by the commission of each of the offences was low but reasonably foreseeable given that there were practical measures available to the defendants to prevent, mitigate, abate or control that harm. Each defendant was found to have full control over the causes of each offence with which they were charged. Each offence was found to be intentional and premeditated. The offences committed by Bellagio were found to have been committed for financial gain, while the offences by Oztech were not.
Oztech was fined $105,000 reduced to $94,500 to reflect a 10% discount for pleas of guilty. Bellagio was fined $95,000, reduced to $76,950 on account of a guilty plea discount and the totality principle, for the first offence and $22,000 (reduced on the same bases) for the second offence.
Liverpool Developing Pty Ltd and Erector Group Pty Ltd each pleaded guilty to two offences, one for breaching s 81A(2) of the EPA Act (requirement to appoint a principal certifying authority and prohibiting commencement of building work until a construction certificate was provided) (now ss 6.6, 6.7) and the other for breaching s 76A(1) of the EPA Act (now s 4.2(1)) by breaching a condition of development consent.
The maximum penalty for each offence was $2 million. The damage caused by the offences was found to be of medium objective seriousness, having caused substantial damage to adjoining buildings. The damage was likely the consequence of the failure of the defendants to comply with the EPA Act and the development consent. The defendants could have reasonably foreseen that their failures to comply with the EPA Act and the development consent would cause damage to the buildings on adjoining land. There were practical measures that the defendants could have taken to avoid that damage and the defendants had control over the causes of the offences. In considering the reasons for committing the offences, the Court found a mistake was made by commencing the building work before the defendants had complied with the requisite requirements, but it was not done with the intention to avoid obligations or to save time or money.
The Court considered the appropriate penalty to be $60,000 for each offence discounted by 22 per cent for the utilitarian value of the pleas of guilty. The fines were then aggregated due to the offences overlapping. The defendants were fined $80,000 each, apportioned evenly between the two offences with which they were each charged.
I have considered these cases but as none are factually similar they have provided little assistance.
Where a defendant is being sentenced for more than one offence, the aggregate or overall sentence must be ‘just and appropriate’ to the totality of the offending behaviour; Johnson v R (2004) 78 ALJR 616; [2004] HCA 15 at [18] quoting Mill v R (1988) 166 CLR 59; [1988] HCA 70 at 63.
The three offences are temporally and physically close arising from essentially the same course of conduct and the totality principle will be applied when determining the appropriate penalty.
The Court must apply the instinctive synthesis approach by identifying all the relevant factors, discussing their importance and making a ‘value judgment as to what is the appropriate sentence given all the factors of the case’; Muldrock v R (2011) 244 CLR 120; [2011] HCA 39 at [26] unanimously following Markarian v R (2005) 228 CLR 357; [2005] HCA 25 at [51] (McHugh J). The sentence must reflect all the relevant objective circumstances of the offence and subjective circumstances of the defendant; see Veen v R (1979) 143 CLR 458; [1979] HCA 7 at 490 (Jacobs J) and Veen (No 2) at 472-3 (Mason CJ, Brennan, Dawson and Toohey JJ), 490-1 (Deane J). The sentence should not exceed what is ‘justified as appropriate or proportionate to the gravity of the crime considered in the light of its objective circumstances’; Hoare v R at 354 (Mason CJ, Deane, Dawson, Toohey and McHugh JJ) citing Veen (No 2) at 472, 485-6, 490-1, 496.
Weighing up the various objective and subjective considerations set out above I consider the following penalties ought to be imposed which will be adjusted in light of the 10% discount for a guilty plea and in light of the totality principle where appropriate:
In relation to charge 1 (Wall 1) (2023/451461) the penalty of $150,000 reduced by 10% to $135,000, further reduced to $110,000,
In relation to charge 2 (Walls 2, 3 and Earthworks) (2023/451460) $150,000 reduced by 10% to $135,000, further reduced to $50,000,
In relation to charge 3 (Works 1, 2) (2023/451459) the penalty of $300,000 reduced by 10% to $270,000.
The Council seeks an order under s 250(1)(a) of the POEO Act that the Defendant take specified action to publicise the offence (including the circumstances of the offence) and its environmental and other consequences, and any other orders made by the Court in the terms identified in Annexure A. A publication order can be made pursuant to s 9.56(2A) of the EPA Act, read with s 295 of the Environmental Planning and Assessment Regulation 2021 (NSW) and s 250(1)(a) of the POEO Act.
Relevant factors for considering whether to make a publication order were helpfully outlined in E**nvironmental P**rotection A**uthority v Crown in the Right of N**ew S**outh W**ales [2019] NSWLEC 178 by Duggan J at [84] as follows:
84 Whether it is appropriate [to] impose a publication order in a sentence has been considered by this Court on a number of occasions. The principles to be derived from those authorities and the factors that have been considered in determining whether to make such an order can be summarised as follows:
(1) The Court has a wide discretion as to whether to impose a publication order and the POEO Act does not identify, in terms, the circumstances in which such an order should or should not be made: Environment Protection Authority v Cargill Australia Limited [2004] NSWLEC 334 at [36];
(2) Publication orders assist in serving a deterrent purpose in environmental crimes: EPA v Waste Recycling Corporation (2006) 148 LGERA 299. Such a notice informs or reminds the public that such an offence exists, and may add some “sting” to the imposition of a fine. The objectives of general and specific deterrence are thus satisfied: Secretary, Department of Planning and Environment v SingTel Optus Pty Ltd [2019] NSWLEC 44 at [163].
(3) Publicising sentences for environmental crime improves the effectiveness of sentences as a deterrent. This is particularly applicable to corporate offenders, who are susceptible to criminal stigma: Environment Protection Authority v Whitehaven Coal Mining Limited [2019] NSWLEC 27 at [242];
(4) Because a publication order is made in addition to, rather than instead of, any penalty, it ought not be considered in determining the quantum of any monetary penalty to be imposed (Environment Protection Authority v Incitec Ltd; (2003) 131 LGERA 176 at [58]-[59]);
…
(7) The circumstances of the case may dictate that the interests of justice and the purpose of the publication will not be served if publication is ordered such as: where the offence is a first offence and the harm and objective seriousness of the offence is low; where publication of the offence is likely to confuse or mislead the reader in light of the substance earlier Court ordered publication: Environment Protection Authority v Cargill Australia Limited [2004] NSWLEC 334 at [41]; Environment Protection Authority v Cleary Bros (Bombo) Pty Ltd [2007] NSWLEC 466 at [169];
(8) Such an order is no less appropriate because the offences have been found to be of a low level of objective seriousness: Secretary, Department of Planning and Environment v SingTel Optus Pty Ltd [2019] NSWLEC 44 at [164].
The Defendant opposes a publication order as being effectively an additional penalty which is not proportionate to the offences committed. The Defendant has no prior record.
I consider the circumstances of the offences warrant a publication order in the terms sought and will make the order sought by the Council.
The Court orders:
The Defendant is convicted of the offences in proceeding nos 2023/451459, 2023/451460 and 2023/451461 contrary to section 4.2(1)(a) of the Environment Planning and Assessment Act 1979 (NSW) as charged.
In relation to 2023/451459 the Defendant is fined the sum of $270,000.
In relation to 2023/451460 the Defendant is fined $50,000.
In relation to 2023/451461 the Defendant is fined $110,000.
The Defendant is to pay the fine imposed in Orders 2, 3, 4 to the Registrar, who is to pay such fine when recovered to the Prosecutor, pursuant to s 694(1) of the L**ocal G**overnment Act 1993 (NSW).
Pursuant to s 9.56(2A) of the Environment Planning and Assessment Act 1979 (NSW) read with s 295 of the Environmental Planning and Assessment Regulation 2021 (NSW) and s 250(1)(a) of the Protection of the Environment Operations Act 1997 (NSW), the Defendant, at its own expense, is to:
(a) Within 42 days of the date of this order, cause a notice at a minimum size of 10 cm x 18 cm 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 Annexure A of these orders; (b) Within 42 days of the date of this order, cause at a minimum size of 10 cm x 18 cm to be published within the first 12 pages of the Wentworth Courier with the text of such notice to be as set out in Annexure A of these orders.
Note: The Court notes that the parties have agreed that this amount is to be met out of the monies held by Woollahra Municipal Council pursuant to cl 4.1(s)(3) of the Enforceable Undertaking signed by Arash Tavakoli on 13 March 2025.
Annexure A: Terms of Media Publication Notice
Neil Street Co Pty Ltd (ACN 134 507 350) (Formerly Landmark Construction Group Australia Pty Ltd (CAN 134 507 350)) convicted and fined for carrying out development without consent
Neil Street Co Pty Ltd (CAN 134 507 350) (Formerly Landmark Construction Group Australia Pty Ltd (CAN 134 507 350)) was prosecuted by Woollahra Municipal Council for three offences of carrying out development without consent.
Between about 11 May 2021 and 8 September 2022, Neil Street Co Pty Ltd carried out a series of works in an unformed area of Bayview Hill Road, Rose Bay (the Land), that comprised part of Sydney Harbour and adjoined the residence of its sole director, Mr Arash Tavakoli.
Until 28 February 2022, the Land was within a mapped wetlands protection area under the Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005 (SREP). Clause 62(1) of the SREP provided that development within a wetlands protection area may be carried out only with development consent. Before granting development consent, the consent authority is to take into account the environmental effects of the development. In bypassing development consent, any potential environmental effects could not be assessed or managed.
The works included building walls, earthworks, and the construction of new stormwater pipes and pits that connected to Council’s stormwater drainage infrastructure. The stormwater works are likely to fail and cause risk to the public if not remediated.
Mr Tavakoli has undertaken to pay for and carry out remediation works to rectify the risk of environmental harm caused by the unauthorised works, to pay the Council’s investigation and legal costs up to 13 March 2025, and to pay a fixed contribution towards ongoing maintenance costs associated with the remediation works.
On 17 October 2025, the Land and Environment Court of NSW sentenced Neil Street Co Pty Ltd for the three offences and ordered it to:
1. Pay fines totalling $430,000;
2. Pay the Prosecutor’s legal costs from 14 March 2025;
3. Place a notice in various State and local news publications advising of the commission of the offence, and to pay for the placement of those notices.
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Woollahra Municipal Council
Neil Street Co Pty Ltd [2025] NSWLEC 117
(2024) 260 LGERA 358
(1993) 113 LGERA 357
(2006) 145 LGERA 234
(1993) 32 NSWLR 683
(2009) 168 LGERA 121
(2006) 148 LGERA 299
(2006) 145 LGERA 189
(2010) 242 CLR 520
(1989) 167 CLR 348
(2004) 78 ALJR 616
(2005) 228 CLR 357
(1988) 166 CLR 59
(2011) 244 CLR 120
(2010) 179 LGERA 386
(2009) 170 LGERA 253
(1999) 199 CLR 270
(2000) 49 NSWLR 383
(1979) 143 CLR 458
(1988) 164 CLR 465
(2003) 131 LGERA 176