Secretary, Department of Planning and Environment v Leda Manorstead Pty Ltd (No 7) - [2021] NSWLEC 26

Land and Environment Court

New South Wales

Amendment notes

Medium Neutral Citation: Secretary, Department of Planning and Environment v Leda Manorstead Pty Ltd (No 7) [2021] NSWLEC 26
Hearing dates: 4, 5, 9, 10, 11, 12 June, 24, 25, 26, 27, 28 August and 22 October 2020
Date of orders: 26 March 2021
Decision date: 26 March 2021
Jurisdiction: Class 5
Before: Pepper J
Decision:
See orders at [670].

Catchwords:
ENVIRONMENTAL OFFENCES: offender convicted of three charges of unlawfully carrying out bulk earthworks contrary to the conditions of a project approval and one charge of commencing works without a construction certificate – determination and composition of appropriate sentences – sentencing principles – extent of environmental harm caused by the commission of the offences – weight to be applied to partial expert witness – state of mind of offender at the time of the commission of the offences – De Simoni principle – objective seriousness of the commission of the offences low to moderate – defendant had a prior conviction for an environmental offence – whether defendant able to express contrition and remorse in the absence of guilty pleas – specific and general deterrence warranted – comparable cases – whether the defendant ought to pay the prosecutor’s costs – whether the Court ought to order that the charges be dismissed – whether the Court ought to convict the defendant but impose no penalty – application of the totality principle – whether the Court ought to make a publication order – defendant convicted and fined in respect of all four offences – publication order made.

Legislation Cited:
Biodiversity Conservation Act 2016, s 73
Crimes (Sentencing Procedure) Act 1999, ss 3A, 3A(b), 10, 10A, 10(1), 10(1)(a),10(3)(c), 10(3)(d), 10(3), 21A(2)(g), 21A(3)(a), 21A(3)(e), 21A(3)(f), 21A(3)(i), 21A(3)(m), 21A(4),
Criminal Procedure Act 1986, ss 247F, 257B, 257G
Environmental Planning and Assessment Act 1979, ss 75D, 75J, 75O, 75P, 76A(1), 76D(2), 81A(4), 81(4)(a), 119J, 125(1), 125, 125A(1)(a)(b), 125(a), 125B, 126, 126(2A)
Fines Act 1966, s 6
Interpretation Act 1987, s 21
Land and Environment Court Rules 2007, r 5.2(1)
National Parks and Wildlife Act 1974, s 156A
Protection of the Environment Operations Act 1997, s 250(1)(a)
Supreme Court Rules 1970, Pt 75 r 3J
Uniform Civil Procedure Rules 2005, Sch 7

Cases Cited:
Axer Pty Ltd v Environment Protection Authority (1993) 113 LGERA 357
Barbaro v The Queen; Zirilla v The Queen [2014] HCA 2; (2014) 253 CLR 58
Bentley v BGP Properties Pty Limited [2006] NSWLEC 34; (2006) 145 LGERA 234
Bikhit v The Queen [2007] NSWCCA 202
Blue Mountains City Council v Carlon [2008] NSWLEC 296
Burwood Council v Erector Group Pty Ltd; Burwood Council v Liverpool Developing Pty Ltd [2017] NSWLEC 20
Cabonne Shire Council v Environment Protection Authority [2001] NSWCCA 280; (2001) 115 LGERA 304
Camilleri’s Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683
Chen v R [2018] NSWCCA 106; (2018) 97 NSWLR 915
Chief Executive of the Office of Environment and Heritage, Department of Premier and Cabinet v Turnbull [2014] NSWLEC 150
Chief Executive, Office of Environment and Heritage v Ausgrid [2013] NSWLEC 51; (2013) 199 LGERA 1
Chief Executive, Office of Environment and Heritage v Brummell [2019] NSWLEC 114; (2019) 242 LGERA 241
Chief Executive, Office of Environment and Heritage v Kyluck Pty Limited (No 4) [2014] NSWLEC 74; (2014) 212 LGERA 1
Chief Executive, Office of Environment and Heritage v Leda Management Services Pty Ltd [2013] NSWLEC 111
Chief Executive, Office of Environment and Heritage v Orica Pty Ltd; Environment Protection Authority v Orica Pty Ltd [2015] NSWLEC 109
Chief Executive, Office of Environment and Heritage v Rummery [2012] NSWLEC 271; (2012) 192 LGERA 314
Chin v Ryde City Council [2004] NSWCCA 167; (2004) 133 LGERA 312
Director-General Department of Planning & Infrastructure v Integra Coal Operations Pty Ltd [2012] NSWLEC 255; (2012) 192 LGERA 281
Director-General, Department of Environment and Climate Change v Hudson (No 2) [2015] NSWLEC 110
Environment Protection Authority v Attard [2000] NSWCCA 242
Environment Protection Authority v Baida Poultry Pty Ltd [2008] NSWLEC 280; (2008) 163 LGERA 71
Environment Protection Authority v Ballina Shire Council [2006] NSWLEC 289; (2006) 148 LGERA 278
Environment Protection Authority v Barnes [2006] NSWCCA 246
Environment Protection Authority v Crown in the Right of New South Wales (Office of Environment and Heritage) [2019] NSWLEC 66
Environment Protection Authority v Crown in the Right of New South Wales [2019] NSWLEC 178
Environment Protection Authority v Edward Gilder [2018] NSWLEC 119
Environment Protection Authority v GrainCorp Operations Limited [2019] NSWLEC 143
Environment Protection Authority v Koppers Carbon Materials & Chemicals Pty Ltd [2021] NSWLEC 12
Environment Protection Authority v M A Roche Group Pty Ltd [2015] NSWLEC 29
Environment Protection Authority v Rands [2019] NSWLEC 23
Environment Protection Authority v Ravensworth Operations Pty Ltd [2012] NSWLEC 222
Environment Protection Authority v Sydney Water Corporation [2019] NSWLEC 100
Environment Protection Authority v Sydney Water Corporation [2020] NSWLEC 153
Environment Protection Authority v Waste Recycling and Processing Corporation [2006] NSWLEC 419; (2006) 148 LGERA 299
Environment Protection Authority v Whitehaven Coal Mining Limited [2019] NSWLEC 27; (2019) 239 LGERA 31
Erector Group Pty Ltd v Burwood Council; Liverpool Developing Pty Ltd v Burwood Council [2018] NSWCCA 56; (2018) 232 LGERA 304
Filipowski v Fratelli D'Amato Srl [2000] NSWLEC 50; (2000) 108 LGERA 88
Filipowski v Hemina Holdings SA; Filipowski v Rajagopalan (No 2) [2009] NSWLEC 104
Gerondal v Eurobodalla Shire Council [2009] NSWLEC 160
Gittany Constructions Pty Ltd v Sutherland Shire Council [2006] NSWLEC 242; (2006) 145 LGERA 189
Gordon Plath of the Department of Environment and Climate Change v Fish [2010] NSWLEC 144; (2010) 179 LGERA 386
Harris v Harrison [2014] NSWCCA 84; (2014) 86 NSWLR 422
Hawkesbury City Council v Johnson; Hawkesbury City Council v Johnson Property Group Pty Limited [2008] NSWLEC 138
Hawkesbury City Council v Johnson; Hawkesbury City Council v Johnson Property Group Pty Limited (No 2) [2009] NSWLEC 6; (2009) 210 LGERA 34
Heatscape Pty Ltd v Mahoney (No 2) [2016] NSWLEC 45; (2016) 217 LGERA 332
Hili v R; Jones v R [2010] HCA 45; (2010) 242 CLR 520
Hoare v The Queen [1989] HCA 33; (1989) 167 CLR 348
Hoffenberg v The District Court of New South Wales [2010] NSWCA 142
Holroyd City Council v Khoury (No 3) [2011] NSWLEC 210
Hornsby Shire Council v Henlong Property Group Pty Ltd (No 2) [2019] NSWLEC 17
Hunter Water Board v State Rail Authority of New South Wales (No 2) (1992) 75 LGRA 22
Johnson v The Queen [2004] HCA 15; (2004) 78 ALJR 616
Jones v R [2010] HCA 45
Lake Macquarie City Council v Australian Native Landscapes Pty Ltd [2015] NSWLEC 92
Lavorato v The Queen [2012] NSWCCA 61; (2012) 82 NSWLR 568
Liverpool City Council v Leppington Pastoral Co Pty [2010] NSWLEC 170
Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357
Matheson v Director of Public Prosecutions (NSW) [2008] NSWSC 550; (2008) 185 A Crim R 83
Mill v The Queen [1988] HCA 70; (1988) 166 CLR
Minister for Planning v Coalpac Pty Ltd [2008] NSWLEC 271
Minister for Planning v Hunter Quarries Pty Ltd [2010] NSWLEC 246
Minister for Planning v Moolarben Coal Mines Pty Ltd [2010] NSWLEC 147; (2010) 175 LGERA 93
Mosman Municipal Council v Menai Excavations Pty Ltd [2002] NSWLEC 132; 122 LGERA 89
Mouawad v The Hills Shire Council [2013] NSWLEC 165; (2013) 199 LGERA 28
Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120
Newcastle City Council v Pace Farm Egg Products Pty Ltd [2002] NSWLEC 66
Parramatta City Council v Cheng [2010] NSWLEC 94
Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610
Pesic v Sutherland Shire Council [2019] NSWLEC 38
Pham v R [2015] HCA 39; (2015) 256 CLR 550
Pittwater Council v Scahill [2009] NSWLEC 12; (2009) 165 LGERA 289
Plath v Rawson [2009] NSWLEC 178; (2009) 170 LGERA 253
Plath v Vaccount Pty t/as Tableland Timbers [2011] NSWLEC 202
R v Baugh [1999] NSWCCA 131
R v Dodd (1991) 57 A Crim R 349
R v Harris [2007] NSWCCA 130; (2007) 171 A Crim R 267
R v MAK; R v MSK [2006] NSWCCA 381; (2006) 167 A Crim R 159
R v Nichols (1991) 57 A Crim R 391
R v Olbrich [1999] HCA 54; (1999) 199 CLR 270
R v Oliver (1980) 7 A Crim R 174
R v Paris [2001] NSWCCA 83
R v Piccin (No 2) [2001] NSWCCA 323
R v Thomson; R v Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383
R v Toohey [2019] NSWCCA 182
R v Visconti [1982] 2 NSWLR 104
R v Wheeler [2000] NSWCCA 34
Secretary, Department of Planning and Environment v AGL Upstream Infrastructure Investments Pty Ltd [2017] NSWLEC 2
Secretary, Department of Planning and Environment v Boggabri Coal Pty Limited [2014] NSWLEC 154
Secretary, Department of Planning and Environment v Charbon Coal Pty Ltd [2016] NSWLEC 106
Secretary, Department of Planning and Environment v Leda Manorstead Pty Ltd [2018] NSWLEC 114
Secretary, Department of Planning and Environment v Leda Manorstead Pty Ltd (No 4) [2019] NSWLEC 58
Secretary, Department of Planning and Environment v Leda Manorstead Pty Ltd (No 6) [2020] NSWLEC 68
Secretary, Department of Planning and Environment v Leda Manorstead Pty Ltd (No 5) [2020] NSWLEC 65
Secretary, Department of Planning, Industry and Environment v Auen Grain Pty Ltd; Merrywinebone Pty Ltd; Greentree; Harris (No 2) [2020] NSWLEC 126
Sydney South West Area Health Service v Stamoulis [2009] NSWCA 153
Terrey v Department of Environment, Climate Change and Water [2011] NSWLEC 141
The Queen v De Simoni [1981] HCA 31; (1981) 147 CLR 383
Thorneloe v Filipowski [2001] NSWCCA 213; (2001) 52 NSWLR 60
Veen v The Queen [1979] HCA 7; (1979) 143 CLR 458
Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465
Walden v Hensler [1987] HCA 54; (1987) 163 CLR 561
Water NSW v Barlow [2019] NSWLEC 30; (2019) 244 LGERA 1

Category: Sentence
Parties: Secretary, Department of Planning and Environment (Prosecutor)
Leda Manorstead Pty Ltd (Defendant)
Representation:
Counsel:
J Single SC with A Garsia (Prosecutor)
A Galasso SC with B Anniwell (Defendant)
Solicitors:
Department of Planning, Industry and Environment (Prosecutor)
Mills Oakley (Defendant)

File Number(s): 2017/186631, 2017/186632, 2017/186634, 2017/186635

Judgment

TABLE OF CONTENTS

TOPIC Paragraph No

Leda is Granted a Project Approval to Develop Cobaki Estate [1]
Leda Develops the Cobaki Estate [6]
The Concept Approval [13]
The Project Approval [18]
Other Development Consents Relating to Cobaki Estate [41]
Leda Breaches the Project Approval [45]
Breach of Condition 21A (First and Second Summonses) [45]
Breach of Condition 41 (Third Summons) [57]
Works Commenced Without a CC (Fourth Summons) [63]
The Statutory Framework Creating the Offences [76]
Sentencing Principles [83]
The Purposes of Sentencing [83]
Statutory Matters Required to be Taken into Account in Sentencing [84]
Objective Seriousness of the Offences [89]
Nature of the Offences [92]
Maximum Penalty [104]
Leda’s State of Mind [108]
The First, Second and Third Summonses [109]
Were the Offences Committed Recklessly or Negligently by Leda? [151]
Fourth Summons [171]
The Environmental Harm Occasioned or Likely to be Occasioned by the Commission of the Offences [172]
The First and Second Summonses [176]
Sediment Mobilisation [177]
Did Additional Sediment Mobilise Offsite Because of the Offending? [180]
How Much Sediment Mobilised Offsite During the Offence Periods? [191]
RUSLE vs MUSLE Model [192]
The Evidence of Bewsher [227]
The Evidence of Shaw [233]
The Evidence of Leda’s Environmental Officers [248]
The Biome Report [276]
Conclusion on the Amount of Sediment Mobilised and Discharged by Reason of the Offending [280]
What Was the Environmental Harm Caused by the Additional Sediment Flowing into the Surrounding Environment? [309]
The Extent to Which Sediment Was Deposited into the Cobaki Creek and the Cobaki Broadwater [312]
Evidence of Davis [313]
Evidence of Matthew [320]
Evidence of Bewsher [321]
Evidence of Martens [333]
Evidence of Shaw and the EOs [335]
The Use of the Hydrosphere TSS Data and the Flow Modelling [339]
Use of the Nearmap Aerial Images [347]
Evidence from Core Samples [352]
Reliance on Complaints about Water Quality [355]
Conclusion on Deposition of Sediment in Cobaki Receiving Waters [357]
Sediment Mobilised into the Saltmarsh [362]
Impact of Sediment on the Ecology of the Surrounding Environment [363]
Evidence of Davis [365]
Evidence of Martens [387]
Evidence of Warren [388]
The Weight to be Placed on Warren’s Evidence [398]
Very Limited to No Weight Can be Given to Warren’s Evidence [443]
The Sediment Mobilisation and Deposition Caused Actual and Likely Harm on the Ecology of the Surrounding Environment [449]
Dust and Air Quality [456]
Findings in Relation to Dust and Air Quality [485]
Summary of Conclusions on Environmental Harm for the First and Second Summons (Breach of Condition 21A) [490]
Third Summons (Breach of Condition 41) [496]
Fourth Summons (Commencing Work Without a CC) [505]
Harm to the Integrity of the Planning System [506]
Reasonable Foreseeability of the Harm Caused or Likely to be Caused to the Environment by the Commission of the Offences [511]
Practical Measures Which Could Have Been Taken to Prevent or Mitigate the Environmental Harm [517]
Control Over the Causes of the Commission of the Offences [545]
Leda’s Reasons for Committing the Offences [546]
Conclusion on the Objective Seriousness of the Offences [548]
Subjective Circumstances of Leda [550]
The Harm to the Environment Was Not Substantial [552]
The Offences Were Not Part of a Planned or Organised Criminal Activity [554]
Prior Convictions [555]
Assistance Provided to Authorities [560]
Early Pleas of Guilty [561]
Contrition and Remorse [568]
Likelihood of Reoffending and Prospects of Rehabilitation [576]
Leda is of Good Character [577]
The Offence Could Have Been Prosecuted in the Local Court [578]
General and Specific Deterrence [579]
Retribution and Denunciation [589]
Consistency in Sentencing [590]
Financial Means of Leda [602]
Costs [603]
Totality Principle [612]
Application of Sections 10 and 10A of the CSPA [622]
First and Second Summonses [635]
Third Summons [645]
Fourth Summons [649]
Appropriate Sentence [652]
Publication Order [657]
Orders [670]
Annexure A

Leda is Granted a Project Approval to Develop Cobaki Estate

On 18 April 2019 the offender, Leda Manorstead Pty Ltd (“Leda”), was found guilty of three charges of breaching s 125(1) of the Environmental Planning and Assessment Act 1979 (“EPAA”) in Secretary, Department of Planning and Environment v Leda Manorstead Pty Ltd (No 4) [2019] NSWLEC 58.
On 25 May 2018 Leda had pleaded guilty to a fourth charge, namely, that it had committed an offence against s 125(1) of the EPAA insofar as it commenced subdivision work (landfilling and associated earthworks in Precinct 2 of the Cobaki Estate) in accordance with a development consent without a construction certificate (“CC”) having been issued by the consent authority, the Tweed Shire Council (“the Council”), or an accredited certifier, contrary to s 81A(4)(a) of the EPAA.
An additional charge was withdrawn by the prosecutor. That charge related to an alleged breach of conditions of the relevant approval concerning erosion and sediment controls (“ESCs”) (“the withdrawn charge”).
These reasons are concerned with the determination of an appropriate sentence for the four contraventions of the EPAA by Leda referred to above. This decision must therefore be read in conjunction with the findings in Leda (No 4), where much of the factual background giving rise to the four charges is set out (see at [1]-[53]). Except where necessary for the sake of convenience, the background in that judgment is relied upon here without repetition. The abbreviations used in Leda (No 4) are also, for the sake of consistency, employed in this judgment.
From the outset it should be noted that the sentence proceedings were overly complex. For example, the prosecutor filed six sets of written submissions totalling 123 pages and Leda filed five sets of written submissions totalling 162 pages. The result is a judgment whose length is commensurate with the protracted nature of the sentence hearing.

Leda Develops the Cobaki Estate

It is uncontroversial that the four charges relate to the same course of conduct by Leda, namely, the development of land owned by it known as the Cobaki Estate, which is a major residential development located in the Tweed Shire in the north east corner of New South Wales close to the Queensland border.
The Cobaki Estate Project is located off Piggabean Road, Cobaki Lakes, in the Council’s local government area. The location is bounded by the Queensland and New South Wales border to the north, Piggabean Road to the south, and Cobaki Creek and Cobaki Broadwater to the east.
The directors of Leda at all relevant times were William Robert Ell (“Bob Ell”) and Robert John Ell (“Robert Ell”).
Reginald Van Rij was engaged by Leda as a manager with responsibility for, among other things, obtaining approvals, ensuring compliance with approvals, and general oversight of works in the Cobaki Estate.
The budgets for work on the Cobaki Estate were approved by Bob Ell. Van Rij authorised expenditure under those budgets.
Van Rij attended regular meetings relating to earthworks on the Cobaki Estate from the period 1 December 2015 to 25 August 2016.
Dennis Hughes acted as Leda’s foreman for the Cobaki Estate and gave detailed instructions for the carrying out of works under the Project Approval. He was not, however, involved in obtaining approvals or ensuring compliance with approvals.

The Concept Approval

On 6 December 2010 a concept approval (“the Concept Approval”) was granted under s 75O in Pt 3A of the EPAA (then in force) by the then Minister for Planning (“the Minister”), for the Cobaki Estate project (“the project”).
The project involves the development of approximately 5,500 residential dwellings; a town centre and neighbourhood centre for future retail and commercial uses; community and educational facilities; open space; wildlife corridors; landscaping and vegetation management; environmental protection areas for rehabilitation of environmentally sensitive land; water management areas; roads, bicycle and pedestrian network; and utility services infrastructure.
The Concept Approval provided for a large area of public open space running in a north-south orientation through the centre of the site, namely, the “Central Open Space Area” (“COS”). It also earmarked an area to the south-east of the COS for community or educational facilities, that is, the “Southern Special Purpose Precinct” (“SSPP”).
Pursuant to s 75P of the EPAA further approvals were necessary before the commencement of the project. The Concept Approval provided that the COS, and an area known as “Precinct 5”, would be subject to project approval under Pt 3A, while the remainder of the works could be approved under Pts 4 or 5 of the EPAA as relevant.
Parts of the Cobaki Estate shaded dark green in the Precinct Location Plan are designated as an Environment Protection Area under the Concept Approval.

The Project Approval

On 28 February 2011 the Deputy Director-General, Development Assessment and Systems Performance of the Department of Planning, as delegate of the Minister, granted Leda Project Approval MP08_0200 under s 75J of the EPAA (“the Project Approval”).
The Project Approval approved the subdivision of the entire Cobaki Estate into seven lots and, relevantly for present purposes, it approved staged bulk earthworks to be carried out in the COS to “create the central open space, riparian corridor, structured open space, and future stormwater drainage area”.
At all relevant times, Leda was the person carrying out the development approved under the Project Approval for the purposes of s 75D of the EPAA.
On 30 May 2011 the Council granted DA 10/0800 in respect of the Cobaki Estate subdivision of Precincts 1 and 2 (“DA 10/0800”). DA 10/0800 permitted cut and fill within Precincts 1 and 2 to be used elsewhere on the Cobaki Estate.

The Project Approval was modified three times. In February 2013 Leda applied to modify the Project Approval for the specific purpose of borrowing fill from Precincts 1 and 2 for use in the COS (“MOD1”). Leda’s Cobaki Estate Development Precincts 1 & 2 Bulk Earthworks Environmental Assessment Report (Revision 1) dated February 2013 prepared by SMEC Urban Consulting which accompanied the modification application, indicated that the borrowing of fill from those precincts for use in the COS had commenced prior to the modification having been sought.
Relevantly for present purposes, MOD1 added a new condition 21A and deleted and replaced condition 41 of the Project Approval to enable bulk earthworks to be carried out not just within the COS, but also within Precincts 1 and 2 “for the sole purpose of the winning of fill to be placed in the central open space area”.
As modified by MOD1, condition 21A read as follows:

21A. Bulk Earthworks
a.   The Proponent shall submit the following plans and specifications with an application for construction certificate for the bulk earthworks in the borrow areas within Precincts 1 and 2:
i.   Natural and finished development levels (spot levels and contours) clearly detailed with a legible scale;
ii.   Sediment and erosion control plans;
iii.   Evidence that the works will be undertaken under geotechnical supervision by a registered Geotechnical Engineer;
iv.   All temporary and permanent batter slopes will be appropriately stabilised by way of grass seeding or hydromulch immediately after completion; and,
v.   An earthworks phasing diagram that defines maximum exposed areas.

b. Bulk earthworks for the site are to be limited to a maximum exposed disturbed area (that has not been permanently vegetated) not exceeding a maximum of 5ha at any time to reduce exposed areas, unless otherwise approved by the Director-General.
c. Works are to be topsoiled, mulched and seeded immediately after completion to protect the exposed areas from water and wind erosion.

Sometime in May 2013 Hughes was involved in a discussion about condition 21A b but he never saw a copy of it.
By letter dated 19 June 2013, the Director-General approved an exceedance of the maximum exposed disturbed area specified in condition 21A b of the Project Approval by up to 0.59 ha in stages 4 and 5, thereby increasing the maximum area for the purposes of condition 21A from 5 to 5.59 ha.
The circumstances in which the 5 ha limit under condition 21A b was increased to 5.59 ha are described in correspondence between Grant Epple, the Project Manager for Leda Developments Pty Ltd (“Leda Developments”), and Sally Munk, a Senior Planner in the Department, in the period from 12 to 13 June 2013.
Shortly after MOD1 was granted, on 12 June 2013 Epple wrote to Munk, submitting for approval an Earthworks Phasing Plan prepared by Yeats Consulting Engineers (“Yeats Consulting”) (Drawing No YC0229-1E1-SK15 Rev A) (“the Earthworks Phasing Plan”).
Munk replied by email the next day querying whether the Earthworks Phasing Plan meant that there would be exceedances of the 5 ha limit. She stated that options should be provided for sequencing the earthworks to reduce the exposed area.
Epple replied the same day attaching an additional Yeats Consulting document entitled Earthworks Phasing and Sequencing Plan. The document showed a proposed sequence of cutting and filling and intermittent intervening remediation, with a progressive tally of disturbed areas under the column “Progressive Exposed Area”. It detailed a progressive total of exposed areas in three instances exceeding 5 ha, with the highest total being 5.50 ha.
Five days later, on 19 June 2013, Heather Warton, as delegate of the Director-General, expressly referred to this email exchange in the formal notification of approval of an increase of the limit under condition 21A b from 5 ha to 5.59 ha.
On 21 June 2013, CC 107 authorising the commencement of MP08_0200 was issued by a private certifying authority (“PCA”), Michael Shaw. The approved stamped documents attached to CC 107 included the Earthworks Phasing Plan and the Earthworks Phasing and Sequencing Plan. Plans endorsed under CC 107 gave approval for 4,900m³ of material to be obtained from Precinct 9 for the filling of Cobaki Parkway South.
The Project Approval was further modified on 3 April 2014, by way of the determination of a modification application which included a request by Leda to be permitted to win fill from borrow areas in Precincts 9 and 11 for use in the COS (“MOD2”).
On 3 April 2014 condition 21A was modified by MOD2. Relevantly, Condition 21A a was amended to read as follows:

a. The Proponent shall submit the following plans and specifications with an application for construction certificate for the bulk earthworks in the Borrow Areas within Precincts 1, 2, 9 and 11.

MOD2 also inserted references to Precincts 9 and 11 in condition 41 of the Project Approval.
In July 2014 Leda applied for a third modification of the Project Approval (“MOD3”), which sought to expand the approved Precinct 9 borrow area and the approved fill areas to include the SSPP. There was no alteration to condition 21A. However, condition 41 was modified to refer to the placement of fill within the SSPP to carry out bulk earthworks for the sole purpose of winning fill to be placed in that area. The list of approved plans was expanded to include the filling of the SSPP and the cutting of the expanded Precinct 9 borrow area.
As referred to in this judgment, the Project Approval comprises that as modified by MODs 1, 2, and 3.
The COS is defined in Part C of Schedule 1 of the Project Approval as:

Central Open Space Area means the area generally identified by the Cover Sheet and Locality Plan, Revision B prepared by Yeats Consulting Engineers and dated 17 September 2010.

As modified, condition 41 of Schedule 2 of the Project Approval is in the following terms:

41. Earthworks – Limits of Approval
a. No bulk earthworks are to be undertaken outside of the COS (as defined in Schedule 1 Part C of this approval)
b.   Notwithstanding a.) above, bulk earthworks may also be carried out in Precincts 1, 2, 9 and 11 for the sole purpose of the winning of fill to be placed in the Central Open Space Area and the SSPP shown on bulk earthworks drawings specified in Condition 3.
c.   Notwithstanding a.) and b.) above, fill material required for the COS sourced from elsewhere on/off the site requires separate development approval, unless otherwise approved by the Director-General.
d.   Retaining walls and fire trail profiles identified on bulk earthworks drawings YCO229-1E1-ES04 (Rev D), YCO229-1E1-ES05 (Rev A), YCO229-1E1-ES06 (Rev A), YCO229-1E1-ES07 (Rev A) are not approved.
Note: Retaining wall height and fire trail profiles within Precincts 1 and 2     shall be submitted to council for approval in accordance with the     conditions of development approval DA10/0800.

At all relevant times, Van Rij had a copy of the conditions of the Project Approval.

Other Development Consents Relating to Cobaki Estate

The development of Cobaki Estate preceded the granting of the approvals under Pt 3A of the Act. Numerous development consents were issued by the Council under Pt 4 of the EPAA with respect to Cobaki Estate between 5 January 1993 and 30 May 2011 prior to the Concept Approval being granted.
In addition, various CCs were issued authorising bulk earthworks within Precincts 1, 2, 9, and 11.
The Concept Approval, Project Approval, and development consents were all granted to Leda.
The development consents and CCs are relevant because a central aspect of Leda’s defence at trial was its contention that active areas of disturbance from bulk earthworks the subject of each of the three changes were attributable to bulk earthworks carried out under one or more of the historic or existing development consents and CCs. The prosecutor denied this and contended that the impugned bulk earthworks were all carried out in furtherance of the Project Approval, and therefore, those earthworks were subject to the conditions of the Project Approval. The submissions of the prosecutor prevailed.

Leda Breaches the Project Approval

Breach of Condition 21A (First and Second Summonses)

In Leda (No 4) the Court determined that the “site” for the purposes of condition 21A b was confined to the areas the subject of Part Two of the Project Approval, namely, the COS, Precincts 1 and 2, and subsequently under MOD2, Precincts 9 and 11, and then under MOD3, the SSPP (at [99] and [125]-[128]).
The expression “bulk earthworks” in condition 21A was construed to include:

temporary stockpiles of earthen material excavated in bulk (at [139]);

the movement of large quantities of earth in the course of cutting and filling (at [304]); and

earth which is moved to create subsoil layers or to create the topsoil layer of a filled area (at [304]).

The expression “maximum exposed disturbed area (that has not been permanently vegetated)” in condition 21A b was interpreted in the following manner (see Leda (No 4)):

it includes earth displaced by bulk earthworks that is exposed to the atmosphere (at [150]);

an “exposed disturbed area” includes both cutting and filling activities (at [152]);

an “exposed disturbed area” is an area that has been exposed and disturbed by bulk earthworks until such time as it is “permanently vegetated” (at 153]);

an area that is “permanently vegetated” will cease to be “exposed” if the vegetation is sufficiently well developed to provide ground cover so that the soil is no longer exposed to wind and rain and ceases to be an area that can potentially generate dust and sediment runoff (at [154]);

what constitutes “permanently vegetated” will be a question of fact in all of the circumstances (at [155]);

the presence of newly sprouted or unsuccessfully established grass, or a sparse cover of weeds, is more likely to be included in the expression “exposed disturbed area” because the area is not “permanently vegetated” (at [155]); and

the expression “maximum exposed disturbed area” in condition 21A b includes any re-disturbed areas if the re-working was due to activity undertaken under the Project Approval (at [209]).

In Leda (No 4) the Court held that condition 21A b could not be circumvented by an assertion that bulk earthworks being carried out in the areas the subject of the Project Approval were being undertaken pursuant to historical consents (at [209]).
The bulk earthworks carried out on the site during the charge periods specified in the first summons and second summons were undertaken in furtherance of the Project Approval and those earthworks were required to be in compliance with condition 21A b (at [280]).
Leda exceeded the 5.59 ha limit in condition 21A b. The estimated total area of the COS, SSPP, and Precincts 1, 2, 9, and 11 exposed and disturbed since 21 June 2013 was (at [287]-[290]):

as at 21 April 2014, between 47.6 and 63.91 ha;

as at 25 June 2014, between 52.6 and 65.65 ha;

as at 6 October 2014, between 55.4 and 85 ha;

as at 9 April 2015, between 54 and 71.42 ha;

as at 18 May 2016, between 46.9 and 68.27 ha; and

as at either 24 February or 7 March 2017, between 40.3 and 62.59 ha.

The first summons charged Leda as follows:

1. An order that the Defendant, Leda Manorstead Pty Ltd (ACN 058 793 114) of Registered Office Level 11, 5 Hunter Street, Sydney in the State of New South Wales, appear before a judge of the Court to answer to the charge that, on and from about 21 April 2014 and continuing to 30 July 2015, at Cobaki Lakes in the State of New South Wales, it committed an offence against section 125(1) of the Environmental Planning and Assessment Act 1979 (Act) in that, in carrying out development that is a project approved under Part 3A of the Act, the Defendant did not comply with a condition to which the project approval was subject, contrary to section 75D(2) of the Act.
PARTICULARS
The Part 3A Approval
Project Approval MP08_0200 as modified from time to time (Project Approval). Further particulars of the modifications to the Project Approval are contained in the affidavit of Stewart McLachlan sworn 19 May 2017 at paragraph 7.
The development being carried out by the Defendant
The project described in the Project Approval (Cobaki Estate Project).
Condition of the Project Approval the Defendant did not comply with
Condition 21A of Schedule 2 to the Project Approval.
Manner of breach
At all relevant times, the Defendant, by itself, its servants and agents, was carrying out the development comprising the Cobaki Estate Project pursuant to the Project Approval.
The Defendant, in carrying out the development, did not comply with Condition 21A of Schedule 2 to the Project Approval in that bulk earthworks for the site during the charge period continuously exceeded the maximum exposed disturbed area (that had not been permanently vegetated) of 5 hectares and was not otherwise approved by the Director General.
Date on which evidence of the offence first came to the attention of an investigation officer
Evidence of the offence first came to the attention of an investigation officer within the meaning of s 127(5A) of the Act, namely Stewart McLachlan, on or about 2 July 2015.

As amended, the second summons was in the following terms:

1. An order that the Defendant, Leda Manorstead Pty Ltd (ACN 058 793 114) of Registered Office Level 11, 5 Hunter Street, Sydney in the State of New South Wales, appear before a judge of the Court to answer to the charge that, on and from 31 July 2015 and continuing to 7 March 2017, at Cobaki Lakes in the State of New South Wales, it committed an offence against section 125(1) of the Environmental Planning and Assessment Act 1979 (Act) in that, in carrying out development that is a project approved under Part 3A of the Act, the Defendant did not comply with a condition to which the project approval was subject, contrary to section 75D(2) of the Act.
PARTICULARS
The Part 3A Approval
Project Approval MP08_0200 as modified from time to time (Project Approval). Further particulars of the modifications to the Project Approval are contained in the affidavit of Stewart McLachlan sworn 19 May 2017 at paragraph 7.
The development being carried out by the Defendant
The project described in the Project Approval (Cobaki Estate Project).
Condition of the Project Approval the Defendant did not comply with
Condition 21A of Schedule 2 to the Project Approval.
Manner of breach
At all relevant times, the Defendant, by itself, its servants and agents, was carrying out the development comprising the Cobaki Estate Project pursuant to the Project Approval.
The Defendant, in carrying out the development did not comply with Condition 21A of Schedule 2 to the Project Approval in that bulk earthworks for the site during the charge period continuously exceeded the maximum exposed disturbed area (that had not been permanently vegetated) of 5 hectares and was not otherwise approved by the Director General.
This is a Tier 2 offence under s 125B of the Act.
The prosecutor alleges that the said offence was committed recklessly or in the alternative negligently.

There are several observations to be made about the first and second summonses. First, together they charge a contravention by Leda of condition 21A b of Sch 2 of the Project Approval over a nominated charge period, namely, in the first summons, “on and from about 21 April 2014 and continuing to 30 July 2015”; and in the second summons, "on and from 31 July 2015 and continuing to 7 March 2017”. The charge periods in the first and second summonses are therefore temporally contiguous and represent, in effect, a single period of continuous criminal activity.
Second, a separate offence was charged for the period on and from 31 July 2015 under the second summons because that was the date on which material amendments to the EPAA came into force creating the three tier sentencing regime by the introduction of ss 125A to 125C of that Act. This materially altered the penalty provision previously applicable to the entirety of the charge period in the first summons.
Third, originally the second summons included particulars of the matters specified in s 125A(1)(a) and (b) of the EPAA, namely, that the offence was committed intentionally and was likely to cause significant harm to the environment. In Secretary, Department of Planning and Environment v Leda Manorstead Pty Ltd [2018] NSWLEC 114, Pain J held that those two matters were not elements of the offence but were particulars relevant only to sentence. Consequently, her Honour ordered that no evidence was to be adduced in respect of s 125A(1)(a) and (b) at any hearing on liability (at [78]).
Prior to the commencement of the sentence hearing, by consent, the second summons was amended to delete any reference to intention and that the offence was likely to cause significant harm to the environment. The amendment had the effect of rendering otiose the hearing before Pain J in Leda.

Breach of Condition 41 (Third Summons)

On 2 July 2015 an earthen mound of topsoil east of Cobaki Parkway was created in connection with roadworks undertaken pursuant to a different consent granted around 2006 (“the earthen mound”). It was approximately two metres high, had long since naturally revegetated, and had become part of the existing landscape surrounding the Project Approval site.
The earthen mound was located in an area identified as Wallum Froglet forage habitat in the Cobaki Estate Environmental Assessment Report Southern Special Purpose Precinct (SSPP) Bulk Earthworks dated July 2014.
In September 2015 Leda took topsoil from the earthen mound and placed it in the SSPP for a structural purpose, namely, as preload. The topsoil was moved from the earthen mound for an engineering purpose and not for the purpose of mere topsoiling and rehabilitation. In doing so, condition 41 of the Project Approval was breached.
Removal of the earthen mound created two areas of disturbance:

one approximately 1.2 ha in size; and

the other approximately 0.5 ha in size.

The works were outside the areas of approved work in condition 41 of the Project Approval.
The third summons stated that:

1. An order that the Defendant, Leda Manorstead Pty Ltd (ACN 058 793 114) of Registered Office Level 11, 5 Hunter Street, Sydney in the State of New South Wales, appear before a judge of the Court to answer to the charge that, between about 1 September 2015 and about 2 November 2015, at Cobaki Lakes in the State of New South Wales, it committed an offence against section 125(1) of the Environmental Planning and Assessment Act 1979 (Act) in that, in carrying out development that is a project approved under Part 3A of the Act, the Defendant did not comply with a condition to which the project approval was subject, contrary to section 75D(2) of the Act.
PARTICULARS
The Part 3A Approval
Project Approval MP08_0200 as modified from time to time (Project Approval). Further particulars of the modifications to the Project Approval are contained in the affidavit of Stewart McLachlan sworn 19 May 2017 at paragraph 7.
The development being carried out by the Defendant
The project described in the Project Approval (Cobaki Estate Project).
Condition of the Project Approval the Defendant did not comply with
Condition 41 of Schedule 2 to the Project Approval.
Manner of breach
At all relevant times, the Defendant, by itself, its servants and agents, was carrying out the development comprising the Cobaki Estate Project pursuant to the Project Approval.
The Defendant, in carrying out the development did not comply with Condition 41 of Schedule 2 to the Project Approval in that bulk earthworks in the nature of excavation and removal of an earthen mound and associated works were undertaken outside of the areas approved under Condition 41, namely in an area to the east of the Cobaki Parkway, near the intersection of Sandy Lane.

Works Commenced Without a CC (Fourth Summons)

DA 10/0800 was granted by the Council on 30 May 2011. At the relevant time, Leda was carrying out the subdivision of Precinct 2 pursuant to that consent.
At some point between 14 January and 23 February 2016, Leda commenced subdivision works under DA 10/0800 by filling land in Precinct 2. However, no CC had been issued relating to DA 10/0800 for the commencement of the subdivision works under that approval.
On 10 March 2016 Shaw conducted an inspection of the site. During that inspection he observed that fill works had occurred in Precinct 2. Shaw said to Yeats “in my opinion, these works are unauthorised and contrary to MP08_200 and approved CC107”.
On 11 March 2016 Shaw wrote an email to Leda (among others) stating that:

he had inspected the site on 10 March 2016 and was able to confirm that fill works had occurred in the northern end of Precinct 2 as depicted in the sketch and photographs attached to the email;

his review of MOD2 of the Project Approval permitted the “winning of material” from Precincts 1 and 2, not filling;

his review of CC 107 did not permit the works in question and, on that basis, the works were unauthorised;

Leda was instructed to install a silt fence at the base of Precinct 2, fill zone batters to protect the area, review the nearby waterway, and have Biome Consulting Pty Ltd (“Biome”) inspect the area and review the need for any further sediment/erosion control measures; and

Leda was directed to stop any further filling in the northern area of Precinct 2 and to temporarily fence off the area.

Less than a week after Shaw’s email, on 17 March 2016, Leda admitted the commission of the offence. Van Rij wrote a letter to Stuart McLachlan, Compliance Officer at the Department of Planning and Environment (“the Department”), on behalf of Leda. Enclosed was a letter to Shaw of the same date advising that unauthorised filling of Precinct 2 had taken place.
In that letter, Leda admited that the works in Precinct 2 had taken place adjacent to, but outside of, the approved works areas.
On 29 April 2016, Shaw conducted another inspection of the site. He observed that:

there were no works occurring in Precinct 2;

the unauthorised fill area of Precinct 2 was protected with a downstream silt fence, but the upstream bund had yet to be installed; and

there were no signs of excessive construction sediment downstream of the site.

On 2 May 2016 Shaw wrote a report to Dale Scotcher at Leda setting out his findings from the inspection on 29 April 2016. Shaw noted that:

● Brad from Biome summarised results of recent site wide S&E control check;
● Leda confirmed commitment to implement measures.

On 17 May 2017 McLachlan received a map plotting the GPS waypoints that he had recorded of the fill area in Precinct 2 observed when he had inspected the site on 23 February 2016. The area of fill covered an area of 2.9 ha.
On 25 November 2016 McLachlan issued a notice to Leda pursuant to s 119J of the EPAA requesting documents relevant to the Department’s investigation (“s 119J notice”). On 8 December 2016 Leda’s lawyers wrote to McLachlan undertaking to provide all documents that it was able to identify by 16 December 2016.
The s 119J notice was reissued to Leda on 14 December 2016, with compliance required by 28 February 2017. Leda provided some of its documents on 16 December 2016 with the balance given on 14 and 28 February 2017.
Leda pleaded guilty to the offence on 25 May 2017.
The fourth summons set out the contravention of s 125(1) of the EPAA to which Leda had earlier pleaded guilty:

1. An order that the Defendant, Leda Manorstead Pty Ltd (ACN 058 793 114) of Registered Office Level 11, 5 Hunter Street, Sydney in the State of New South Wales, appear before a judge of the Court to answer to the charge that, between about 1 December 2015 and about 10 March 2016, at Cobaki Lakes in the State of New South Wales, it committed an offence against section 125(1) of the Environmental Planning and Assessment Act 1979 (Act) in that, it commenced subdivision work in accordance with a development consent without a construction certificate having been issued by the consent authority, the Council or an accredited certified, contrary to section 81A(4)(a) of the Act.
PARTICULARS
Subdivision work commenced without a construction certificate
The filling of land and associated earthworks as part of the subdivision work in Precinct 2 of the Cobaki Estate as referred to in the Development Consent (particularised below).
Development consent in accordance with which subdivision work was undertaken
Development consent DA 10/0800 granted by Tweed Shire Council (decision made by Joint Regional Planning Panel) the subject of the Council’s Notice of Determination dated 30 May 2011 (Development Consent).
Manner of breach
At all relevant times, the Defendant, by itself, its servants and agents, was carrying out the development the Cobaki Estate, including the subdivision of Precinct 2 pursuant to the Development Consent.
No construction certificate had been issued at the time the said subdivision work was commenced, or at any time up to at least September 2016.

The Statutory Framework Creating the Offences

From the outset it should be noted that Leda was convicted of three offences in contravention of s 125(1) of the EPAA concerning breaches of conditions 21A b and 41 of the Project Approval contrary to s 75D of the EPAA, the latter of which states that a person carrying out a Pt 3A project must comply with any conditions to which the project approval is subject. Part 3A of the EPAA was repealed effective 1 October 2011. However, the relevant provisions of Pt 3A of the EPAA continued to apply at all relevant times to the project by reason of the savings and transitional provisions contained in Sch 6A of that Act (see, in particular, cls 2 and 3 of Sch 6A of the EPAA).
Section 125(1) of the EPAA provides that:

125 Offences against this Act and the regulations
(1) Where any matter or thing is by or under this Act, other than by or under the regulations, directed or forbidden to be done, or where the Minister, the Secretary, a council or any other person is authorised by or under this Act, other than by or under the regulations, to direct any matter or thing to be done, or to forbid any matter or thing to be done, and that matter or thing if so directed to be done remains undone, or if so forbidden to be done is done, a person offending against that direction or prohibition shall be guilty of an offence against this Act.

Pursuant to s 125(1) of the EPAA compliance with any condition to which an approval is granted under Pt 3A of the Act is a matter or thing that is directed to be done by or under the Act. Consequently, if a person does not comply with that direction, the person commits an offence as prescribed by s 125(1).
Section 125B of the EPAA states:

125B   Maximum penalties for offences against Act: Tier 2
(1) This section applies to an offence against this Act under section 125 (1), other than an offence to which section 125A applies or an offence for which a tier 3 maximum penalty applies.
(2)   A person who is guilty of an offence to which this section applies is liable to a tier 2 maximum penalty, being a penalty not exceeding:
(a)   in the case of a corporation:
(i)   $2 million, and
(ii)   for a continuing offence—a further $20,000 for each day the offence continues…

Section 126 of the EPAA relevantly provides as follows:

126 Penalties
(1) A person guilty of an offence against this Act shall, for every such offence, be liable to the penalty expressly imposed and if no penalty is so imposed to a penalty not exceeding 10,000 penalty units and to a further daily penalty not exceeding 1,000 penalty units.

Section 75D of the EPAA is in the following terms:

75D Minister’s approval required for projects
(1) A person is not to carry out development that is a project to which this Part applies unless the Minister has approved of the carrying out of the project under this Part.
(2) The person is to comply with any conditions to which such an approval is subject.

Section 81A(4) of the EPAA relevantly states:

81A   Effects of development consents and commencement of development
(4)    Subdivision work in accordance with a development consent must not be commenced until:
(a)    a construction certificate for the subdivision work has been issued by the consent authority, the council (if the council is not the consent authority) or an accredited certifier, and
(b)    the person having the benefit of the development consent has appointed a principal certifying authority for the subdivision work, and
(b1)    the principal certifying authority has, no later than 2 days before the subdivision work commences:
(i)    notified the consent authority and the council (if the council is not the consent authority) of his or her appointment, and
(ii)    notified the person having the benefit of the development consent of any critical stage inspections and other inspections that are to be carried out in respect of the subdivision work, and

(c) the person having the benefit of the development consent has given at least 2 days’ notice to the council, and the principal certifying authority if that is not the council, of the person’s intention to commence the subdivision work.

Sentencing Principles

The Purposes of Sentencing

The purposes of sentencing are set out in s 3A of the Crimes (Sentencing Procedure) Act 1999 (“CSPA”):

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.

Statutory Matters Required to be Taken into Account in Sentencing

Subsections 21A(2) and (3) of the CSPA set out the aggravating and mitigating factors that the Court must consider when sentencing an offender. Relevant to the facts of this case they are as follows:

21A   Aggravating, mitigating and other factors in sentencing
(2)    Aggravating factors
The aggravating factors to be taken into account in determining the appropriate sentence for an offence are as follows:
…
(d)    the offender has a record of previous convictions (particularly if the offender is being sentenced for a serious personal violence offence and has a record of previous convictions for serious personal violence offences),
…
(g) the injury, emotional harm, loss or damage caused by the offence was substantial,
…
(o) the offence was committed for financial gain…

The court is not to have additional regard to any such aggravating factor in sentencing if it is an element of the offence.
(3)    Mitigating factors
The mitigating factors to be taken into account in determining the appropriate sentence for an offence are as follows:
(a)    the injury, emotional harm, loss or damage caused by the offence was not substantial,
(b)   the offence was not part of a planned or organised criminal activity,

…
(e)    the offender does not have any record (or any significant record) of previous convictions,
(f)    the offender was a person of good character,
(g)    the offender is unlikely to re-offend,
(h)   the offender has good prospects of rehabilitation, whether by reason of the offender’s age or otherwise,
(i)    the remorse shown by the offender for the offence, but only if:
(i)    the offender has provided evidence that he or she has accepted responsibility for his or her actions, and
(ii)    the offender has acknowledged any injury, loss or damage caused by his or her actions or made reparation for such injury, loss or damage (or both),

…
(k) a plea of guilty by the offender (as provided by section 22 or Division 1A),
…
(m) assistance by the offender to law enforcement authorities (as provided by section 23)…

Further, s 21A(4) of the CSPA states that “the court is not to have regard to any such aggravating or mitigating factor in sentencing if it would be contrary to any Act or rule of law to do so”.
A sentencing court may not take facts into account adverse to the interests of the offender unless those facts have been established beyond reasonable doubt. However, if there are circumstances in favour of the offender that the Court proposes to take into account, it is sufficient if those circumstances are established on the balance of probabilities (R v Olbrich [1999] HCA 54; (1999) 199 CLR 270 at 281).
The appropriate sentence to be imposed on Leda is to be determined by an instinctive synthesis of the relevant objective and subjective circumstances of the commission of the offences (Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 at [35]-[39], [50]-[84] and [136]-[139]).
Importantly, the sentence to be imposed on Leda for its commission of the offences must be proportionate to both the objective seriousness or gravity of the offence and Leda’s subjective circumstances (Veen v The Queen [1979] HCA 7; (1979) 143 CLR 458 at 490 and Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465 at 472).

Objective Seriousness of the Offences

The objective gravity of the offences fixes both the upper and lower limits of proportionate punishment. It fixes the upper limit insofar as the sentence must not exceed that which can be justified as appropriate or proportionate to the gravity of the crimes considered in light of their objective circumstances (Veen (No 2) and Hoare v The Queen [1989] HCA 33; (1989) 167 CLR 348 at 354). It fixes the lower limit because allowance for the subjective factors of the case ought not produce a sentence which fails to reflect the objective gravity or seriousness of the offences (R v Dodd (1991) 57 A Crim R 349 at 354 and R v Nichols (1991) 57 A Crim R 391 at 395).
The objective seriousness is to be determined by reference to the nature of the offences and not by reference to matters that are personal to the offender (Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120 at [27]).
A determination of the objective seriousness or gravity of the offences includes consideration of the factors discussed below.

Nature of the Offences

The nature and purpose of the provision that has been contravened, and its place in the statutory scheme, are illustrative of the objective seriousness of an environmental offence (Bentley v BGP Properties Pty Limited [2006] NSWLEC 34; (2006) 145 LGERA 234 at [168]-[169]; Plath v Rawson [2009] NSWLEC 178; (2009) 170 LGERA 253 at [49]; and Chief Executive, Office of Environment and Heritage v Orica Pty Ltd; Environment Protection Authority v Orica Pty Ltd [2015] NSWLEC 109 at [59]).
The objects of the EPAA identify the purpose of the offence provision as follows:

5   Objects
The objects of this Act are:
(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,
(iii)   the protection, provision and co-ordination of communication and utility services,
(iv)   the provision of land for public purposes,
(v)   the provision and co-ordination of community services and facilities, and
(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
(viii)   the provision and maintenance of affordable housing, and

(b) to promote the sharing of the responsibility for environmental planning between the different levels of government in the State, and
(c) to provide increased opportunity for public involvement and participation in environmental planning and assessment.

The nature of the offence of failing to comply with a condition of an approval under s 76D(2) of the EPAA was, albeit by analogy with the offence of carrying out development without consent contrary to s 76A(1) of the EPAA, 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.

Similarly, in the earlier case of Pittwater Council v Scahill [2009] NSWLEC 12; (2009) 165 LGERA 289 his Honour observed that (at [46]):

46. There is a need for the upholding of the integrity of the system of planning and development control. This system depends on persons taking steps to obey the law by ascertaining when development consent is required and then obtaining development consent before carrying out development: Byron Shire Council v Fletcher (2005) 143 LGERA 155 at [60]-[61]; Cameron v Eurobodalla Shire Council at [72]-[80]; Byres 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].

More recently, in Hornsby Shire Council v Henlong Property Group Pty Ltd (No 2) [2019] NSWLEC 17 Robson J remarked as follows (at [40]):

40. Planning approvals are one means by which the State government seeks to achieve these objects, and to ensure the efficient and sustainable development of NSW. These approvals are central to maintaining the integrity of the NSW planning system, and this informs the consideration and assessment of the seriousness of an offence. Offences which undermine the integrity of the regulatory scheme are objectively serious: see Secretary, Department of Planning and Environment v Boggabri Coal Pty Limited [2014] NSWLEC 154 at [19].

Conditions attaching to approvals and consents are imposed to ensure that development is carried out, among other things, in a manner that is safe and that maximises environmental protection. As the objectives of the EPAA indicate, an approval subject to conditions seeks to balance the competing tensions inherent in the use of land. Conditions are imposed by a consent authority after a period of careful consultation and deliberation, often with the input of specialised experts. Compliance with conditions is the price payable for permission to engage in activity that will impact upon the environment and those persons who use it. If development is carried out in a manner contrary to the conditions attached to an approval then the integrity of the regulatory system is not only undermined, the environmental protections afforded by those conditions may be rendered nugatory or, at the very least, eroded, and human health may be compromised.
In Leda (No 4) the Court described the purpose of condition 21A b as follows (at [129]):

129. Turning next to the purpose of condition 21A b, plainly it is to protect the environment and the amenity of nearby occupants by limiting the areas of exposed earth on the site, thereby limiting the capacity for dust generation (by exposure to air) and the entrainment of sediment in rainwater/stormwater runoff. That purpose is best served if the condition is construed by reference to an area of exposed and disturbed earth associated with “bulk earthworks” carried out under the Project Approval.

Leda relied upon Departmental material dealing with MOD2 and evidence from Van Rij to submit that the condition’s sole purpose was to minimise dust emissions. But, in my opinion, this description is framed too narrowly. There is no doubt that limiting the area of exposed bulk earthworks by the imposition of condition 21A was intended to minimise a variety of potential environmental harms on the site including, among other things, dust generation, as well as limiting the mobilisation offsite of soil and sediment resulting from such exposed areas.
The above observations are no less apposite in respect of the contravention of s 81A(4) of the EPAA.
Leda’s failure to adhere to the conditions of the Project Approval and to obtain a CC prior to engaging in the subdivision works not only undermined the objects of the EPAA and the integrity of the planning regime in this State, it risked compromising the welfare of the community and the surrounding environment.
Having said this, in Minister for Planning v Coalpac Pty Limited [2008] NSWLEC 271 Biscoe J rejected the proposition that an offence involving a major project under Pt 3A of the EPAA should be viewed as objectively more serious than an offence involving a development under Pt 4 of the EPAA (see [31]-[33]). This must be, with respect, correct.
Lastly, in respect of the nature of the offences the subject of the first and second summonses, it is important to recall that the two charges did not arise out of separate criminal conduct but were the result of a change to the EPAA effective from 31 July 2015 increasing the maximum penalty. While the offending conduct was approximately three years’ duration, works were not active on the site for the whole period. As Shaw deposed, no relevant activity was conducted on the site for a three month period between April and June 2015. Moreover, at the time that condition 21A was inserted into the Project Approval, exposed and disturbed area on the site had already exceeded the limit provided for in that condition (see Leo Watts’s evidence in his affidavit affirmed on 24 May 2017).

Maximum Penalty

The maximum penalty provided for the commission of an offence reflects Parliament’s, together with the community’s, view of the the seriousness of that offence (Camilleri’s Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 at 698 and Rawson at [57]). Leda’s offending must be examined in this light (Environment Protection Authority v Edward Gilder [2018] NSWLEC 119 at [106]). The maximum penalty serves as a yardstick and the basis for the comparison between the case before the court and the worst case.
With regards to s 125(1) offences committed before 31 July 2015 (relevant to the first summons only) the maximum penalty stipulated by s 126 of the EPAA was $1,100,000.
With regards to the s 125(1) offences committed after 31 July 2015 (relevant to the remaining summonses), the charges were offences that were subject to a tier 2 maximum penalty under s 125B of the EPAA. Accordingly, in the case of a corporation, the maximum penalty is $2 million, and for a continuing offence a further $20,000 for each day that the offence continues (s 125B(2)(a)(ii) of the EPAA).
As both parties accepted, an offence against s 125(1) of the EPAA is objectively serious as has been recognised by the legislature by the enactment of these penalties.

Leda’s State of Mind

The offences under s 125(1) of the EPAA are strict liability offences and therefore intention is not an element of them. But the state of mind of Leda in the commission of the offences is nonetheless relevant to the question of penalty. A strict liability offence committed intentionally, recklessly or negligently “exacerbates the objective culpability of the defendant” (Camilleri’s Stock Feeds at 700; Gittany Constructions Pty Ltd v Sutherland Shire Council [2006] NSWLEC 242; (2006) 145 LGERA 189 at [123]; and Rawson at [98]).

The First, Second and Third Summonses

The prosecutor submitted that the offences the subject of the first, second and third summonses were committed recklessly, or in the alternative, negligently. This was because, notwithstanding that Leda was operating under a level of confusion as to the meaning of the Project Approval and the effect of the various consents and CCs operating across the site, no steps were taken by it to obtain advice from the Council, the Department, or lawyers in order to clarify what its obligations were under that approval.
By contrast, Leda submitted that the evidence disclosed a state of mind that was consistent with a circumstance in mitigation in Leda’s favour in relation to those summons insofar as it revealed that Leda was operating under a mistake as to the construction, operation, and effect of conditions 21A and 41 of the Project Approval, together with a mistake as to the operation of the pre-existing consents over the site (Hawkesbury City Council v Johnson; Hawkesbury City Council v Johnson Property Group Pty Limited [2008] NSWLEC 138 at [109] and Hawkesbury City Council v Johnson; Hawkesbury City Council v Johnson Property Group Pty Limited (No 2) [2009] NSWLEC 6; (2009) 210 LGERA 34 at [72] per Pain J). Put another way, Leda held an honest belief that was mistaken at law that the bulk earthworks that it undertook were permitted under the Project Approval and various historical consents which operated over the site simultaneously to the inclusion of each other.
The prosecutor relied upon the evidence of Leda’s directors, together with a number of its executives and employees in support of its contention as to Leda’s mental state. In particular, the prosecutor relied upon the record of interview (“ROI”) of Bob Ell, one of the two directors of Leda. He disclosed that the first time that he had seen a copy of the Project Approval was about two to four weeks prior to his ROI and that he had never seen any modification to it. Rather, it was Van Rij and Brandon Yeats who were responsible for compliance with the condition of the Project Approval “on the basis that they’re running the project” (Q/A 108). However, when asked whether or not Yeats, Hughes or Van Rij had ever reported any non-compliance with conditions of the Project Approval, he stated (Q/A 118 to 119 and 123 to 125):

Q   Have Mr Yeats, Mr Van Rij or Mr Hughes ever reported – when you say they report problems to you, have they ever reported any non-compliances with conditions of consent?
A   No.
Q   Have you ever had any – have you ever asked or had any discussions about compliance with conditions of consent with those three parties?
A   No. I’ve just assumed that – we haven’t had any – any fines or problems or pulled up by – we’ve been here, like, what - nearly 10, 11, 12 years we’ve been doing this project and moved something like $50 million worth of dirt, which is millions and millions of cubic metres, and no council or no one has ever come out. We haven’t had (indistinct) we’ve had one problem once where we might have started once without a CC I think – a year or two or three ago , and I think we had one other problem there was an argument with – that’s why the engineers got taken off the thing, who was right on the level.
So it was us or the council that were on the level, but other than that I can’t remember any other incidents that we’ve had in our whole career here. We've very little complaints from the public, no bad publicity, no nothing. The only complaints we’ve had is these motorbikes.
…
A   You know, because - if it was a big - if it was a non-compliance and it cost us a lot of money I would hear straight away.
Q   So am I correct in saying unless it would cost you a lot of money you wouldn’t hear about a non-compliance with conditions of consent?
A   No.
Q   Okay. So you would hear about any non-compliances with conditions of consent?
A   I don’t hear about it. I’d hear about overruns in budgets and if – if somebody fined us or, you know, such as these instances you’re going through here now.

Bob Ell had never seen any of the correspondence sent to Leda by the Department from 14 August 2015 onwards. He was consequently surprised by the Department’s allegation that bulk earthworks were conducted in excess of 5 ha because as far as he was concerned “we have DAs all over the site everywhere, and they’ve been like that for ages” (Q/A 169).
In respect of condition 21A b he had never seen the condition before (Q/A 166), however, he acknowledged that he had participated in discussions about the condition (Q/A 169 to 171 and 206 to 207):

Q   Okay. And what have the discussions entailed?
A   The discussions are that – they said they’re – they’re trying to claim that we’re in excess of our 5 hectares and I said, “Well, why – well, how the hell – why – why we’re (indistinct).” I said – I said something to the point – I said, “Well, hang on, we have DAs all over the site everywhere, and they’ve been like that for ages, and we’ve been clearing here and clearing there and up in the north – what we call the northern hill has been exposed under various other DAs, and so on. So why would they be picking on one little spot in that – up in” – they said to me, “Well this is the open space DA and it’s got that condition in, but none of our other DAs have that condition in.”
So I said, “Well, are we – are we right or wrong?” The opinion of the guys, well, they said, “Well, this is possibly questionable. That we could be right or it could be wrong.”
Q   Did you issue any instructions after that conversation?
A   Again, that we’d better have a good look at it and comply and get advice.
Q   Okay. And did they report back to you on that?
A   That they believed they’re within their rights now.
…
Q   Are you aware of any bulk earthworks for the purpose of this Project Approval 08_0200 as modified that have occurred outside the limits of approval?
A   No. I’m told that we – we believe we’re running within our approvals.
Q   Okay. So who has told you that?
A   Reg, Brandon, the engineers. They’ve told – until you guys arrived on site and disputed their approvals we believed we’ve been doing the right thing because nobody, our certifier or our engineers, no one said, “You’re doing the wrong thing,” council or anyone.

When asked about the area the subject of condition 41, Bob Ell was not sure if there were approvals to undertake the earthworks within the Wallum Froglet area (Q/A 259 to 261).
Robert Ell, the second director of Leda, was the subject of a compulsory interview on 12 September 2016. As co-director his function entailed “very little” (Q/A 31) other than to manage income and expenditure (Q/A 42 to 43). Robert Ell knew even less about the Project Approval and its conditions than Bob Ell. For example, he did not know what the Project Approval was for (Q/A 94). He had read neither the Project Approval nor condition 21A b (Q/A 106 and 160 to 162). He believed that Van Rij and Yeats were responsible for compliance (Q/A 114). In particular, he was of the belief that Van Rij was operationally in charge of Leda (Q/A 123).
Hughes had responsibility for the earthworks on behalf of Leda through a contracting arrangement with Ecovale Pty Ltd. It was not contentious that Hughes acted as Leda’s foreman on the Cobaki Estate project and gave instructions for the carrying out of works. In his ROI dated 15 September 2016, Hughes confirmed that he made the day-to-day management and operational decisions on site. While he had seen the Project Approval he had neither seen its modifications nor condition 21A b. He was aware of the latter but believed that it approved 7 ha of exposed bulk earthworks (Q/A 86 to 92, 100 to 120, 151 to 154, 205-207 and 208 to 210).
Hughes believed that various consents existed for different parts of the development on Cobaki Estate.
In relation to the Wallum Froglet area, Hughes stated that the material removed was placed there in 2006 but later “had to be removed” because “it was overlapping in – on some other lands there”. He was told to remove the earth by Van Rij and “the engineers as well” (Q/A 324 to 328).
It was clear from Hughes’s ROI that he had a very limited understanding of the Project Approval and which consents governed the works that he was undertaking.
Scotcher was the Development Manager for Leda from 10 August 2015. He reported to Van Rij. He was interviewed on 5 September 2016. When asked what approvals Leda was working under in relation to bulk earthworks in Precincts 1, 2, 9, and 11, he referred to “a number of live CCs across the estate, like historical ones that we’re allowed to do earthworks under” (Q/A 110 to 113):

Q   What approvals were Leda working under in relation to bulk earthworks in precincts 1, 2, 9 and 11?
A   So, there's the project approval which flowed on from the concept approval and then there were CCs issued by Mike Shaw under those project approvals.
Q   Are there any other approvals that Leda has worked under for precincts 1, 2, 9 and 11?
A   Yes.
Q   What are those approvals?
A   Off the top of my head, I couldn't rattle off the numbers, but there are a number of live CCs across the estate, like historical ones, that we're allowed to do earthworks under. So, for example, precinct 10, we're doing some filling down there. The borrow pit was up on precinct 9 there on the - is it the western edge of the environmental area there. So, (indistinct) material out of there and placing it onto precinct 10 under one of the CCs - again, a historical one. I can't rattle off the number off the top of my head.
Q   No worries. Are there any other areas where there's historical CCs in relation to 1, 2, 9 and 11?
A   They're across the estate. They are literally everywhere. We actually got a plan that shows where all our CCs are and they're all outlined and coloured and everything, that our surveyor did for us and it pretty much covers almost the whole estate. There are very small gaps where there aren't any CCs, but - yeah, as I said, most of those historical CCs cover the entire estate.

Scotcher repeated several times his understanding that there were multiple CCs operating across the site (see, for example, Q/A 129 to 130 and 226 to 227). When asked to identify on a map the areas that were permitted to be disturbed under the Project Approval, his response indicated that the Project Approval referred to the borrow pit only and that the other areas of disturbance were governed by CCs (Q/A 179 to 180).
Unlike others, Scotcher was familiar with the Project Approval and its modifications. He recalled a discussion about condition 21A b with Yeats and Van Rij to the effect that other approvals across the site permitted more than 5 ha under the Project Approval to be exposed (Q/A 264 to 268):

Q    Can you read out loud 21A(b)?
A   “21A(b), bulk earthworks for the site are to be limited to a maximum exposed disturbed area that has not been permanently vegetated not exceeding a maximum of 5 hectares at any time to reduce exposed areas unless otherwise approved by the DG.”
Q   Have you seen that condition before?
A   Yes.
Q   Have you ever had any discussions about that condition and compliance with it?
A   Yes.
Q   Who were those discussions with?
A   Internally, with Brandon and Reg.
Q   And what were the - specifically, what were the discussions about?
A   That we are limited to 5 hectares within our project approval, but our CCs across the site allow us to open up those other areas, so therefore if you look at an aerial map like this, the area of the site will have probably greater than the 5 hectares exposed, but it doesn’t mean those areas aren’t allowed to be open under our CCs.

Scotcher was not aware of any condition in any approval that excluded Leda from removing the earthen mound the subject of condition 41 in the Project Approval. He did not see “why it wouldn’t be permitted” because “it’s not placing fill, it’s placing topsoil. Subtle difference” (Q/A 243, 244 and see also 251). He identified the “earthen mound” as a stockpile of topsoil that was to be partly used as preload over marine clays in the SSPP (Q/A 242).
Van Rij was engaged by Leda as a manager with responsibility for obtaining approvals, compliance, and general oversight of the works on Cobaki Estate. In his interview on 8 September 2016, he described his role as providing oversight, and stated that he was “primarily responsible for approvals and amendments to those approvals and the general oversight of the operations of the site” (Q/A 28). He confirmed that Bob Ell’s attitude to compliance with the Project Approval was to “fix it up” (Q/A 103).
Van Rij confirmed that he was the person to “represent the company as a whole and its development applications and its interface with agencies and so on” (Q/A 109) but that Hughes dealt with the daily operational decisions and management of the site. As to the corporate structure, Van Rij stated that Bob Ell was the “top bloke” and that he and Scotcher reported to him (Q/A 128), otherwise “there’s no structure in Leda Manorstead, it’s just a – it’s an entity that is there to own an account for, and so on, a particular asset” (Q/A 130).
Van Rij confirmed that Bob Ell would not necessarily be made aware of correspondence from the Department and that it was Hughes who was responsible for implementing instructions from the PCA (Shaw).
Unlike others interviewed, Van Rij was familiar with the Project Approval and its modifications. The Project Approval and its modifications were contained in a working document: the Construction Environment Management Plan (“CEMP”). However, no one had undertaken a detailed reading of the CEMP and no one had read the document in detail (Q/A 172 and 176).
As to the approvals that Leda was operating under in Precincts 1, 2, 9, and 11, Van Rij referred to a number of extant and historical CCs (Q/A 178-183). In relation to condition 21A b he said (Q/A 232):

Totality Principle

The totality principle is a relevant consideration when determining, as with the present proceedings, an aggregate penalty in sentencing for multiple offences (Mill v The Queen [1988] HCA 70; (1988) 166 CLR at 62 to 63; Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610 at [40]; Johnson v The Queen [2004] HCA 15; (2004) 78 ALJR 616 at [18]; and Water NSW v Barlow [2019] NSWLEC 30; (2019) 244 LGERA 1 at [111]-[112]). The task of the Court is to ensure that the overall sentence is neither too harsh nor too lenient.
Care must nevertheless be taken “to ensure that any adjustment of individual sentences does not cause the aggregate sentence not to reflect the total criminality of the offender’s conduct or the sentence for any individual offence to become disproportionate to the objective gravity of that offence” (Rawson at [222]). The identified risk is that if “sentences are reduced substantially, offenders may view that they can escape punishment for successive deliberate discrete offences” (Gittany at [199] and [201]; R v Harris [2007] NSWCCA 130; (2007) 171 A Crim R 267 at [46]; and R v Wheeler [2000] NSWCCA 34 at [36]–[37]). That is to say, the application of the totality principle must not cause public confidence in the administration of justice to be undermined by any perception that “what is in effect being offered is some kind of discount for multiple offending” (R v MAK; R v MSK [2006] NSWCCA 381; (2006) 167 A Crim R 159 at [18]).
In R v Toohey [2019] NSWCCA 182, Gleeson JA summarised the application of the principle as follows (at [56]):

56. As to totality, it is well established that questions of accumulation and concurrence are, generally speaking, matters for determination by a sentencing judge in the exercise of his or her discretion. The focus is on a consideration of the similarity, differences and the degree of connection between the offences both in time and type to ascertain the extent to which the sentence for one offence can comprehend and reflect the criminality of the other: Pannowitz v R [2016] NSWCCA 13 at [40] (Davies J, Hoeben CJ at CL and Beech-Jones J agreeing). That calls for the identification and an evaluation of the relevant factors pertaining to the offences and will include the nature and seriousness of each offence.

The principle applies with different force where the penalty imposed is a fine. In Camilleri’s Kirby P (as he then was) said (at 704):

The principle of totality is applicable where the penalty imposed is by way of fine: see R v Sgroi (1989) 40 A Crim R 197 at 203. However, it may be that the principle of totality may not have the same force in the case of the imposition of fines, as opposed to the imposition of imprisonment where it has a special operation: see R v Brown (1982) 5 A Crim R 404 at 407.

This passage was quoted with approval in Barnes (at [46]) where Kirby P explained the application of the totality principle to fines in this way (at [49] and [50]):

49. Dealing with these arguments, the totality principle clearly had application. Her Honour was sentencing for two offences. It was not simply a matter of fixing a fine for each offence. Her Honour was obliged to review the aggregate and consider whether it was just and appropriate, as a reflection of the criminality overall. That may require some moderation of the sentences imposed in respect of each offence.
50. Here, the fine in respect of count 1 ($4,000) was significantly different from that in respect of count 2 ($500). However, the disparity by itself does not suggest error. Where there are multiple offences, each punishable by a custodial sentence, the totality principle may find expression through the complete or partial accumulation of sentences, or through making all or some of the sentences concurrent (cf. Pearce v The Queen (1998) 194 CLR 610, per McHugh, Hayne and Callinan JJ at 624 (para 45)). However, there is obviously no room for partial accumulation or concurrence in the case of fines. If the sentencing Judge believed that the totality principle required an adjustment to the fines which may otherwise be appropriate, the amount of each fine had to be altered, applying the sentencing principles suggested in Johnson v The Queen (2004) 205 ALR 346.

The parties agreed that the totality principle applied in determining the appropriate sentences for the four offences contrary to s 125(1) of the EPAA.
In this context, the Court takes into account the continuing nature of the offences the subject of the first and second summonses. That is, the charges brought by the first and second summonses do not arise out of separate criminal conduct but must be viewed as one continuous act. But for the change to the EPAA effective as of 31 July 2015, there would have been one offence charged for the period 21 April 2014 to 7 March 2017.
The offence the subject of the third summons is a breach of the same provision of the EPAA and concerns bulk earthworks in contravention of the Project Approval for the same project on the same site. It took place over two days during the offence period for the second summons. It also attracts the application of the totality principle.
Finally, in respect of the fourth summons, Leda accepted that the offence was of a different character to the other charges. However, as Leda correctly submitted, some adjustment of the fine to be imposed in respect of that offence is required to account for the fact that the charge arose out of bulk earthworks conducted on the same site and in relation to the same project as the other charges.
In summary, because the elements of each offence are relevantly similar and co-incident in respect of both the offending conduct and the circumstances giving rise to the commission of the offences over the entirety of the charge periods, the application of the totality principle to all four charges is warranted, albeit to a lesser degree with respect to the charge the subject of the fourth summons.

Application of Sections 10 and 10A of the CSPA

As foreshadowed by its application at the commencement of the sentence hearing (see Secretary, Department of Planning and Environment v Leda Manorstead Pty Ltd (No 5) [2020] NSWLEC 65), Leda submitted that in light of the evidence disclosing that, with the exception of the charge the subject of the fourth summons, the offences were committed by reason of a mistaken belief as to the proper construction of the Project Approval, and given that the commission of the offences gave rise to minimal, if any, environmental harm, the charges should be dismissed pursuant to s 10 of the CSPA.
Section 10(1)(a) of the CSPA provides that:

10 Dismissal of charges and conditional discharge of offender
(1) Without proceeding to conviction, a court that finds a person guilty of an offence may make any one of the following orders—
(a) an order directing that the relevant charge be dismissed…

Pursuant to s 10(3) the Court must take into account the following factors in deciding whether or not to make an order under s 10(1):

(3) In deciding whether to make an order referred to in subsection (1), the court is to have regard to the following factors—
(a)  the person’s character, antecedents, age, health and mental condition,
(b)  the trivial nature of the offence,
(c)  the extenuating circumstances in which the offence was committed,
(d)  any other matter that the court thinks proper to consider.

Section 10A(1) provides that “a court that convicts an offender may dispose of the proceedings without imposing any other penalty.”
The following legal principles have been distilled from the authorities concerning the application of s 10(1)(a) of the CSPA (see the summary in Heatscape Pty Ltd v Mahoney (No 2) [2016] NSWLEC 45; (2016) 217 LGERA 332 at [275]-[279]). From the outset it should be noted that there is no prohibition against the application of s 10 to a corporate offender (see s 21 of the Interpretation Act 1987 and the definition of “person”: Chief Executive, Office of Environment and Heritage v Ausgrid [2013] NSWLEC 51; (2013) 199 LGERA 1 at [105]).
The factors in s 10(3) are all but mandatory considerations. In Hoffenberg v The District Court of New South Wales [2010] NSWCA 142 Basten JA relevantly described the structure of s 10 as follows (at [8] and [10]-[11]):

8 … Section 10 is relevantly broken into three parts, the first conferring a power to make an order of a particular kind; the second prescribing that the order “may be made” if the court is satisfied of certain matters, although not stating that the court must be so satisfied to make such an order, and the third identifying factors which, in considering whether to make such an order, the court “is to have regard to”. While the logic of the new structure is apparent, its effect is obscured.
…
10 Further, to say that a court “is to have regard to” certain factors (see sub-s (3)), suggests that these are mandatory considerations. However, they are really conclusions reached by the court in the course of its considerations. As is clear from s 4 of the South Australian Act, a critical question for the court may be whether the nature of the offence can properly be described as “trivial” and whether the circumstances in which it was committed were in fact “extenuating circumstances”. Properly understood, the court is not to “have regard to” those factors, but to determine whether those factors exist. Finally, it seems that these are not in truth mandatory considerations, because par (d) includes “any other matter that the court thinks proper to consider”. It is not meaningful to make that a mandatory consideration. Again the purpose is to ensure the court considers the full range of factors it considers relevant.
11 Despite its form, s 10 should be understood as having the same general effect as s 4 of the South Australian Act. That is, it will not be expedient for the Court to release a person guilty of an offence without proceeding to conviction unless one or more of the factors set out in sub-s (3)(a), (b) or (c) is satisfied or there are other circumstances, not clearly fitting within those characteristics, which would justify such a course. Thus, a court now has a broader discretionary power than in the past; relevantly for the question of jurisdictional error, there is no statement of impermissible considerations.

The factors to which the Court “is to have regard to” are not exhaustive (R v Paris [2001] NSWCCA 83 at [42]) and are considered to be disjunctive in their operation (Paris at [42]). That is, it is not necessary for all of the factors contained in s 10(3) to be present before the Court can exercise its discretion to make an order.
An order under s 10(1) generally applies to offences that are considered to be trivial in nature, however, the converse is equally true (R v Piccin (No 2) [2001] NSWCCA 323 at [25]; Chin v Ryde City Council [2004] NSWCCA 167; (2004) 133 LGERA 312 at [38]; and Terrey v Department of Environment, Climate Change and Water [2011] NSWLEC 141 at [114]).
An order under s 10 (or its former statutory incarnation, s 556A of the Crimes Act 1900) is usually "rare" in the case of environmental offences, including offences concerning a breach of planning laws (Hunter Water Board v State Rail Authority of New South Wales (No 2) (1992) 75 LGRA 22 at 23; Environment Protection Authority v Attard [2000] NSWCCA 242 at [5]; Thorneloe v Filipowski [2001] NSWCCA 213; (2001) 52 NSWLR 60 at [165]-[169]; Mosman Municipal Council vMenai ExcavationsPty Ltd [2002] NSWLEC 132; 122 LGERA 89 at [35]; Pace Farm Egg Products at [24]; El-Khouri at [34]; and Terrey at [109]).
Nonetheless, the environmental and planning characterisation of the offence is no bar to the application of s 10(1) of the CSPA (El-Khouri at [34]; Gerondal v Eurobodalla Shire Council [2009] NSWLEC 160at [47]-[51]; and Parramatta City Council v Cheng [2010] NSWLEC 94 at [41]-[45]).
Having said this, the circumstances in which a s 10(1) order is appropriate are considered to be limited where the environmental offence is one of strict liability (Blue Mountains City Council v Carlon [2008] NSWLEC 296 at [70]-[71] and Terrey at [110]).
But the fact that the offences in question are of strict liability does not preclude an order being made under s 10 of the CSPA (Filipowski v Fratelli D'Amato Srl [2000] NSWLEC 50; (2000) 108 LGERA 88 at [139]; Thorneloe at [171]; Filipowski v Hemina Holdings SA; Filipowski v Rajagopalan (No 2) [2009] NSWLEC 104 at [149]-[153]; and Lavorato v The Queen [2012] NSWCCA 61; (2012) 82 NSWLR 568 at [126]).
In relation to the application of s 10A of the CSPA, there is no statutory equivalent to the matters set out in s 10(3) of that Act applying to that provision. However, the learned author Stephen Odgers SC has opined that “utilisation of this option would be rare and for unusual cases” (Sentence (4^th ed), 2018, Longueville Media Pty Ltd, [5.11]). For example, such an order was made in Bikhit v The Queen [2007] NSWCCA 202, where it was doubted that any offence was disclosed on the evidence but the appellant nevertheless maintained his plea of guilty.

First and Second Summonses

Leda relied upon the grounds identified in s 10(3)(c) and (d) of the CSPA as the basis upon which the Court could dismiss the charges the subject of the first and second summonses. Correctly, in my view, Leda did not contend that the offences were trivial. It could not because they were not.
Leda relied upon the fact that it was of good corporate character and the fact that its antecedents were limited to a single environmental offence committed in 2013 (s 10(3)(a) of the CSPA).
Leda submitted that the offence was committed in extenuating circumstances, namely, its mistaken belief as to the construction, operation and effect of condition 21A of the Project Approval together with the operation of the pre-existing historical consents over the site. In making this submission it relied upon the evidence of Shaw, its PCA, and its EOs, whose role it was to alert Leda to non-compliance with the Project Approval. In particular, it emphasised that Shaw’s understanding of the term “exposed area” was consistent with Leda’s construction of condition 21A b of that approval.
Finally, Leda repeated the submissions that it made in relation to costs to argue that the disentitling conduct engaged in by the prosecutor by amending the second summons was a matter that the Court ought to take into consideration for the purpose of s 10(1)(a) of the CSPA.
Dealing with the last contention first, for the reasons stated above, I neither accept that the prosecutor conducted itself in the egregious manner contended for (at [605]-[611]) by Leda nor do I accept that Leda suffered the disadvantage it claims as a result of the late amendment to the second summons.
Second, while I have found that Leda committed the offences charged in the first and second summons mistakenly, which is a matter that I take into account for the purpose of s 10(1), this must be balanced against the fact that Leda had the capacity to ensure that the offences, and the ensuing environmental harm, did not occur by taking the practical measures referred to earlier in this judgment (at [517]-[544]).
Further, just as the trivial nature of the offences is a matter that the Court can take into account in deciding to exercise its discretion under s 10(1)(a) of the CSPA, so too is the seriousness of the offences. In respect of the first and second summonses, the exposed area cleared was found to be by the Court in Leda (No 4) well in excess of the 5.59 ha permitted under the Project Approval. Actual and likely harm was occasioned by the commission of those offences. In addition, the offending conduct occurred over a protracted period of time. It was for all these reasons that the objective seriousness of the offences is characterised as low to moderate.
While the Court has found that Leda is generally of good character, it cannot ignore the fact that there are antecedents for environmental crime and that an element of specific deterrence is warranted in the imposition of an appropriate sentence. To dismiss the charges would not, in my view, appropriately denounce the conduct, either at an individual level, or at a general level for those involved in the construction industry.
Finally, the Court takes into account the fact that Leda did not plead guilty to these offences (although a plea of guilty will not preclude the application of s 10(1)(a): Matheson v Director of Public Prosecutions (NSW) [2008] NSWSC 550; (2008) 185 A Crim R 83 at [65]), and has expressed no contrition or remorse for its conduct.
Weighing up the relevant factors and circumstances of this case, I do not consider that an order under either ss 10(1) or 10A of the CSPA would be appropriate.

Third Summons

Leda sought an order under s 10A of the CSPA with respect to the third summons, that is, convicting Leda for the offence, but disposing of the proceeding without imposing any other penalty.
Leda accepted that a conviction was warranted but submitted that there were compelling reasons why conviction without more was sufficient:

the objective seriousness of the offence was low and no environmental harm was caused as a result of the commission of the offence;

the offence took place over a short period of time (a day);

the offence was committed as a result of a mistaken belief as to the law;

while the proceedings did proceed to a contested hearing, the issues in dispute did not cause an undue expenditure of curial resources;

the hearing raised novel issues concerning the interpretation of condition 41 of the Project Approval and the meaning of “bulk earthworks”; and

a conviction alone would sufficiently acknowledge the importance of specific and general deterrence for the commission of this offence.

While the objective seriousness of the offence has been found to be low, I do not agree that a conviction alone would be sufficient because:

the offence was not trivial;

there was no plea of guilty and curial time and parties’ expense was incurred in dealing with the charge;

the construction questions raised by the third summons were not sufficiently novel;

Leda had the capacity to ensure that the offence did not occur;

Leda has antecedents for environmental crime;

Leda has not apologised for its offending; and

to impose no penalty would fail to account for the need for specific and general deterrence in this instance.

Finally, it must be recalled that the application of the totality principle will operate to reduce the penalty imposed for Leda’s commission of this offence.

Fourth Summons

Leda submitted that the charge the subject of the fourth summons should be disposed of pursuant to either s 10(1)(a) or 10A of the CSPA because:

the objective seriousness of the commission of the offence is low;

Leda pleaded guilty at the first available opportunity;

Leda made full and frank admissions as to the offence;

there was no environmental harm occasioned by the commission of the offence; and

Leda engaged in works as a precautionary measure to prevent environmental harm soon after it was notified of the breach by Shaw, its PCA.

In my view, an order pursuant to either ss 10(1)(a) or 10A of the CSPA would not be appropriate because:

the offence was not trivial even if its objective seriousness has been found to be low;

Leda’s failure to obtain a CC as required prior to commencing the works has a tendency to undermine the planning regime enshrined in the EPAA;

Leda is a sophisticated corporate defendant carrying out a large scale development who ought to have been familiar with the planning requirements governing the project. It cannot, as it sought to do, absolve itself of culpability merely by relying on its PCA;

Leda has antecedents for environmental crime; and

it would not serve the needs of specific and general deterrence in this case.

Furthermore, as stated above in relation to the third summons, the application of the totality principle will operate to ensure that the overall penalty imposed on Leda is not disproportionate to its overall culpability for its offending behaviour.

Appropriate Sentence

To reiterate, the appropriate sentence is to be derived from an instinctive synthesis of all of the relevant factors.
Having regard to the objective seriousness of the offences and the mitigating subjective factors in favour of Leda, together with the penalties imposed in the relevant comparable cases, I consider that the appropriate sentence to be imposed for in respect of the offences the subject of the first and second summons to be a monetary penalty of $75,000 per offence (reflective of the fact that although separately charged, the offending conduct amounts to a single offence). For the offence the subject of the third summons, a monetary penalty of $40,000 is imposed, and for the offence the subject of the fourth summons, a monetary penalty of $20,000 is imposed.
The latter penalty must be discounted by 15% for the utilitarian value of Leda’s plea of guilty, that is, $17,000.
After the application of the totality principle, the penalties for summonses two, three and four should be further reduced to $50,000, $30,000 and $15,000, respectively.
The total monetary penalty imposed on Leda for the commission of the four offences is $170,000.

Publication Order

The prosecution supported the making of a publication order pursuant to s 250(1)(a) of the Protection of the Environment Operations Act 1997 (which applies Pt 8.3 of that Act to these proceedings by operation of s 126(2A) of the EPAA) in respect of the second, third, and fourth summonses only.
As accepted by the prosecutor, no publication order can be made in relation the first summons because s 126(2A) had not commenced prior to 30 July 2015, the end of the relevant charge period provided for in that summons (“on and from about 21 April 2014 and continuing to 30 July 2015”) (Secretary, Department of Planning and Environment v AGL Upstream Infrastructure Investments Pty Ltd [2017] NSWLEC 2 at [30] and [133]). That provision was in force for the charge periods for the remaining offences.
In Environment Protection Authority v Crown in the Right of New South Wales [2019] NSWLEC 178 Duggan J usefully set out the principles to be derived from the authorities in determining whether or not to make a publication order, which I respectfully adopt and apply (at [84] and [86]):

84   Whether it is appropriate it 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]. A publication order operates as a message to the community that a holder of an EPL is under a heightened responsibility to ensure that their operations are conducted in accordance with the conditions of such licence: Environment Protection Authority v Biosolids Management Pty Limited [2004] NSWLEC 90;
(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]);
(5)   If an order under s 250(1)(e) is imposed a publication order ought be made because it is important to publicise to the community at the time such an order is made that any works being undertaken are as a result of committing an offence: Environment Protection Authority v Centennial Newstan Pty Ltd [2006] NSWLEC 732 at [141];
(6)   Existing adverse publicity in the media or an intention to self-publicise a conviction will not necessarily preclude the making of a publication order: Environment Protection Authority v Sibelco Australia Limited [2011] NSWLEC 160 at [104];
(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].

…
86 The notion of the Defendant self-publishing the convictions does not have the same force or reach of a Court ordered publication order and I therefore consider it, in the circumstances of this case, inadequate to ensure general and specific deterrence. However, I do not, by these observations, seek to discourage the Defendant from undertaking its own publications of these convictions.

The prosecutor contended that a publication order was appropriate for the remaining offences involving, as they do, a corporate defendant and the breach of a project approval insofar as it would enhance general deterrence.
Because the offences were committed in New South Wales (“NSW”), the notice should be published in a paper with Statewide circulation. In addition, the notice should be published in local publications in both NSW and Queensland given the location of the site. There were no relevant trade publications in which the notice could be published.
Moreover, because Leda does not have its own website, the notice should also be published, the prosecutor argued, on the website of a related company, Leda Holdings Pty Limited (“Leda Holdings”) (see Environment Protection Authority v Whitehaven Coal Mining Limited [2019] NSWLEC 27; (2019) 239 LGERA 31, where the Court made a publication order for a notice to published on the website of the defendant’s parent company in circumstances where the corporate defendant did not have its own website). Leda Holdings owns shares in Leda and, more significantly, has a website that publishes information about a number of projects being undertaken by companies within the Leda Group, including the project at Cobaki Estate.
Leda opposed the making of a publication order for the following reasons:

first, because there is no power to made an order with respect to the first summons, an order in relation to the second summons would be inappropriate because the summonses relate to a single continuous activity which could not be reflected in the notice;

second, because the offences were a function of a need to analyse complex and ambiguous provisions of the Project Approval and various development consents, the concept of general deterrence does not feature as prominently as it otherwise would, and therefore, a principal purpose served by the publication of any notice would be thwarted;

third, as the affidavit of Ashleigh Cowper affirmed 16 October 2020 (a solicitor acting for Leda) demonstrated, the Court’s findings in Leda (No 4) have been widely publicised across a number of media platforms since 2019, for example, The Daily Telegraph, The Courier Mail and the Tweed Daily News. Some of the imputations said to arise from the articles published in those newspapers included that the offences were likely to cause significant damage to the environment, written, as they were, prior to the amendment to the second summons. Furthermore, the Court’s decision in Leda (No 4) has been published in a number of legal publications, the consequence of which is that the proceedings, and Leda’s conduct, has been broadcast to the industry since 2019. Accordingly, there was no need for additional deterrence by the making of a publication order (citing Chief Executive, Office of Environment and Heritage v Kyluck Pty Limited (No 4) [2014] NSWLEC 74; (2014) 212 LGERA 1 at [102] and [103]);

fourth, the length of time since the offences were commenced (that is, almost seven years ago) (Kyluck at [103]);

fifth, publication orders are not required in circumstances where there has been no environmental harm, especially no actual harm, and the objective seriousness of Leda’s offending conduct has been found to be low (citing various illustrations of cases where publication orders had been made only where actual harm had occurred by the commission of the offence); and

sixth, the making of a publication order would be a disproportionate response to the objective and subjective circumstances of the case. The imposition of a penalty, an order for costs, in addition to the payment by Leda of its own legal costs, is sufficiently punitive.

In my opinion, the arguments raised by Leda may be answered as follows:

first, merely because the publication order can only be directed towards the second, third, and fourth summonses does not render the making of such an order inappropriate. The purposes for which the publication order is made will nevertheless be served even if only part of the charge period may be referred to in it. If anything, the exclusion of one of the offences from the notice works to Leda’s advantage, not disadvantage;

second, the Court has found that both specific and general deterrence are warranted aspects of the sentence to be imposed in these proceedings;

third, while Leda’s offending conduct has already been publicised, the punishment for its conduct has not. It is important to publicise not only the findings of guilt but also the sentences, so that entities in the position of Leda are made aware of the consequences of breaching the EPAA. Furthermore, as Leda noted, the publicity surrounding the findings of guilt occurred almost two years ago and a publication order will be a timely reminder to those contemplating engaging in environmental crime not to do so. Publication of a notice will also have the benefit of clarifying previously published erroneous statements that significant harm to the environment was caused, or likely to be caused, by the commission of the offences;

fourth, there is no suggestion that the delay between the charges being laid and the conclusion of the sentence hearing is the fault of the prosecutor. Indeed, the reasons for the nearly six and half year delay are not known. But, as stated above, the fact of the delay, especially the nearly two year delay between the findings of guilt and the publication of this judgment, serves to reinforce the need for a publication order in order to remind, and therefore, deter, would be offenders;

fifth, in my view, general deterrence will not be achieved by reason of Leda having been “named and shamed” in the liability judgment or by reason of the publications referred to by Leda, especially given the effluxion of time. In the age of a 24 hour news cycle, two years is a very long time and those articles will have long been forgotten;

sixth, there is no authority for the proposition that publication orders are inappropriate in circumstances where there has been no environmental harm caused as a consequence of the offending. Leaving to one side the fact that the Court has made findings to the contrary (there was, in addition to the findings of likely harm, actual harm found to have occurred to the saltmarsh and there was actual harm to the amenity of the nearby residents by way of dust deposition), the authorities do not support this submission. For example, Whitehaven Coal is a case where only likely environmental harm was found by Court but a publication order was nevertheless made; and

seventh, there is nothing about the circumstances of this case that distinguishes it from the myriad of other cases in this Court where publication orders are made, together with an order for costs and the imposition of a monetary penalty. To make such an order is not disproportionate.

In my opinion, therefore, it is appropriate to make a publication order in respect of the charges the subject of the second, third and fourth summonses only. The form of the order is annexed to this judgment at ‘A’.
Leda submitted that because it has filed a Notice of Intention to Appeal with the Court of Criminal Appeal (“the Notice of Intention”), the publication of any notice should be suspended until Leda’s appeal has been determined. There is force in this submission. Injustice would result if the publication order was not stayed or suspended, the notice published, and Leda was successful on appeal. The order can be crafted in a manner that accounts for the mere lapsing of the Notice of Intention rather than a final determination upon appeal.
I also accept the submission by Leda that the time period for the notice to be published on Leda Holdings’s website ought not be indefinite. Indefinite publication would be oppressive in the circumstances of these proceedings. Leda’s suggestion that the publication of any notice on Leda Holdings’s website should not exceed a period of three months from its date of initial publication should be embraced.
The Court was also in agreement with the parties that any notice placed on Leda Holdings’s website should be published on the Cobaki Estate webpage of that website, rather than on the homepage of Leda Holdings’s website.
Finally, I agree with Leda that requiring publication of a notice in two publications covering the same local community (Tweed Valley Weekly and Tweed Daily News) is unnecessary and oppressive. The notice should only be published in one publication, namely, the Tweed Daily News.

Orders

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

Proceeding 2017/186631

the defendant is convicted as charged;
the defendant is fined the sum of $75,000;

Proceeding 2017/186632

the defendant is convicted as charged;
the defendant is fined the sum of $50,000;

Proceeding 2017/186634

the defendant is convicted as charged;
the defendant is fined the sum of $30,000;

Proceeding 2017/186635

the defendant is convicted as charged;
the defendant is fined the sum of $15,000;

Proceedings 2017/186632, 186634, 186635

pursuant to s 250(1)(a) of the Protection of the Environment Operations Act 1997, Leda is, at its own expense, to:

within 28 days of the date of these orders, publicise the commission of the offences in proceedings 2017/186632, 186634, 186635 and the orders made against it in respect of those offences, by causing a notice in the form set out at annexure A to this judgment, at a minimum size of 12 cm x 15 cm to be published within the first 10 pages of:

The Daily Telegraph;

the Gold Coast Bulletin; and

the Tweed Daily News;

within 28 days of the date of these orders, publicise the commission of the offences in proceedings 2017/186632, 186634, 186635 and the orders made against it in respect of those offences, by causing a notice in the form set out at annexure A to this judgment to be placed on the Cobaki Estate webpage of the Leda Holdings Pty Ltd website ( for a period of 90 days from the date of this judgment;

within 35 days of the date of these orders, provide to the prosecutor a complete copy of the pages of the publications and a screenshot of the website on which the notices have been published in accordance with orders 9(a) and (b) above; and

order 9(a), (b) and (c) is stayed from operation pending the final determination of any appeal against conviction and/or sentence in the Court of Criminal Appeal or the lapsing of any notice of intention to appeal against conviction or sentence filed in that Court;

Proceedings 2017/186631, 186632, 186634, 186635

each party is to pay their own costs of the interlocutory proceedings before Pain J in Secretary, Department of Planning and Environment v Leda Manorstead Pty Ltd [2018] NSWLEC 114;
with the exception of the costs referred to above in order 10, pursuant to s 257B of the Criminal Procedure Act 1986 Leda is to pay the prosecutor’s costs of the proceedings as determined under s 257G of that Act; and
the exhibits are to be returned.

Annexure A

Leda Manorstead Pty Ltd Convicted of Contravening Project Approval and Ordered to Pay $95,000

Leda Manorstead Pty Ltd (“Leda”) has been convicted and been ordered to pay a fine in the sum of $95,000 by the Land and Environment Court of NSW (“Court”) for three offences against s 125(1) of the Environmental Planning and Assessment Act 1979 (“EPAA”) of carrying out development on land otherwise than in accordance with a project approval issued by the Department of Planning, Industry and Environment (“Department”), contrary to s 75D of the EPAA.

The development consent was a project approval in respect of works at the Cobaki Estate, Piggabean Road, Cobaki Lakes, New South Wales. The project approval included a condition authorising Leda to conduct bulk earthworks for the site only to a maximum disturbed area not exceeding 5.59 ha across the whole site. The offences committed by Leda included breaching that condition. The Court found that between 31 July 2015 and 7 March 2017, there was an area of between 40.3 ha to 55.4 ha of combined exposed area across the site, and that Leda was in breach of the 5.59 ha limit during this period.

On 26 March 2021, the Court convicted Leda for the three offences and ordered it to:

(1)   pay fines totalling $95,000;
(2)   pay the Department’s legal costs;
(3)   place a notice in various news publications notifying the commission of the offences, and to pay for the placement of those notices; and
(4)   place a notice on the homepage of the Leda Holdings Pty Ltd’s website publicising Leda’s commission of the offences.

**********

Amendments

29 March 2021 - paragraph [200] - corrected numbering

Decision last updated: 29 March 2021

Medium Neutral Citation:	Secretary, Department of Planning and Environment v Leda Manorstead Pty Ltd (No 7) [2021] NSWLEC 26
Hearing dates:	4, 5, 9, 10, 11, 12 June, 24, 25, 26, 27, 28 August and 22 October 2020
Date of orders:	26 March 2021
Decision date:	26 March 2021
Jurisdiction:	Class 5
Before:	Pepper J
Decision:	See orders at [670].
Catchwords:	ENVIRONMENTAL OFFENCES: offender convicted of three charges of unlawfully carrying out bulk earthworks contrary to the conditions of a project approval and one charge of commencing works without a construction certificate – determination and composition of appropriate sentences – sentencing principles – extent of environmental harm caused by the commission of the offences – weight to be applied to partial expert witness – state of mind of offender at the time of the commission of the offences – De Simoni principle – objective seriousness of the commission of the offences low to moderate – defendant had a prior conviction for an environmental offence – whether defendant able to express contrition and remorse in the absence of guilty pleas – specific and general deterrence warranted – comparable cases – whether the defendant ought to pay the prosecutor’s costs – whether the Court ought to order that the charges be dismissed – whether the Court ought to convict the defendant but impose no penalty – application of the totality principle – whether the Court ought to make a publication order – defendant convicted and fined in respect of all four offences – publication order made.
Legislation Cited:	Biodiversity Conservation Act 2016, s 73 Crimes (Sentencing Procedure) Act 1999, ss 3A, 3A(b), 10, 10A, 10(1), 10(1)(a),10(3)(c), 10(3)(d), 10(3), 21A(2)(g), 21A(3)(a), 21A(3)(e), 21A(3)(f), 21A(3)(i), 21A(3)(m), 21A(4), Criminal Procedure Act 1986, ss 247F, 257B, 257G Environmental Planning and Assessment Act 1979, ss 75D, 75J, 75O, 75P, 76A(1), 76D(2), 81A(4), 81(4)(a), 119J, 125(1), 125, 125A(1)(a)(b), 125(a), 125B, 126, 126(2A) Fines Act 1966, s 6 Interpretation Act 1987, s 21 Land and Environment Court Rules 2007, r 5.2(1) National Parks and Wildlife Act 1974, s 156A Protection of the Environment Operations Act 1997, s 250(1)(a) Supreme Court Rules 1970, Pt 75 r 3J Uniform Civil Procedure Rules 2005, Sch 7
Cases Cited:	Axer Pty Ltd v Environment Protection Authority (1993) 113 LGERA 357 Barbaro v The Queen; Zirilla v The Queen [2014] HCA 2; (2014) 253 CLR 58 Bentley v BGP Properties Pty Limited [2006] NSWLEC 34; (2006) 145 LGERA 234 Bikhit v The Queen [2007] NSWCCA 202 Blue Mountains City Council v Carlon [2008] NSWLEC 296 Burwood Council v Erector Group Pty Ltd; Burwood Council v Liverpool Developing Pty Ltd [2017] NSWLEC 20 Cabonne Shire Council v Environment Protection Authority [2001] NSWCCA 280; (2001) 115 LGERA 304 Camilleri’s Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 Chen v R [2018] NSWCCA 106; (2018) 97 NSWLR 915 Chief Executive of the Office of Environment and Heritage, Department of Premier and Cabinet v Turnbull [2014] NSWLEC 150 Chief Executive, Office of Environment and Heritage v Ausgrid [2013] NSWLEC 51; (2013) 199 LGERA 1 Chief Executive, Office of Environment and Heritage v Brummell [2019] NSWLEC 114; (2019) 242 LGERA 241 Chief Executive, Office of Environment and Heritage v Kyluck Pty Limited (No 4) [2014] NSWLEC 74; (2014) 212 LGERA 1 Chief Executive, Office of Environment and Heritage v Leda Management Services Pty Ltd [2013] NSWLEC 111 Chief Executive, Office of Environment and Heritage v Orica Pty Ltd; Environment Protection Authority v Orica Pty Ltd [2015] NSWLEC 109 Chief Executive, Office of Environment and Heritage v Rummery [2012] NSWLEC 271; (2012) 192 LGERA 314 Chin v Ryde City Council [2004] NSWCCA 167; (2004) 133 LGERA 312 Director-General Department of Planning & Infrastructure v Integra Coal Operations Pty Ltd [2012] NSWLEC 255; (2012) 192 LGERA 281 Director-General, Department of Environment and Climate Change v Hudson (No 2) [2015] NSWLEC 110 Environment Protection Authority v Attard [2000] NSWCCA 242 Environment Protection Authority v Baida Poultry Pty Ltd [2008] NSWLEC 280; (2008) 163 LGERA 71 Environment Protection Authority v Ballina Shire Council [2006] NSWLEC 289; (2006) 148 LGERA 278 Environment Protection Authority v Barnes [2006] NSWCCA 246 Environment Protection Authority v Crown in the Right of New South Wales (Office of Environment and Heritage) [2019] NSWLEC 66 Environment Protection Authority v Crown in the Right of New South Wales [2019] NSWLEC 178 Environment Protection Authority v Edward Gilder [2018] NSWLEC 119 Environment Protection Authority v GrainCorp Operations Limited [2019] NSWLEC 143 Environment Protection Authority v Koppers Carbon Materials & Chemicals Pty Ltd [2021] NSWLEC 12 Environment Protection Authority v M A Roche Group Pty Ltd [2015] NSWLEC 29 Environment Protection Authority v Rands [2019] NSWLEC 23 Environment Protection Authority v Ravensworth Operations Pty Ltd [2012] NSWLEC 222 Environment Protection Authority v Sydney Water Corporation [2019] NSWLEC 100 Environment Protection Authority v Sydney Water Corporation [2020] NSWLEC 153 Environment Protection Authority v Waste Recycling and Processing Corporation [2006] NSWLEC 419; (2006) 148 LGERA 299 Environment Protection Authority v Whitehaven Coal Mining Limited [2019] NSWLEC 27; (2019) 239 LGERA 31 Erector Group Pty Ltd v Burwood Council; Liverpool Developing Pty Ltd v Burwood Council [2018] NSWCCA 56; (2018) 232 LGERA 304 Filipowski v Fratelli D'Amato Srl [2000] NSWLEC 50; (2000) 108 LGERA 88 Filipowski v Hemina Holdings SA; Filipowski v Rajagopalan (No 2) [2009] NSWLEC 104 Gerondal v Eurobodalla Shire Council [2009] NSWLEC 160 Gittany Constructions Pty Ltd v Sutherland Shire Council [2006] NSWLEC 242; (2006) 145 LGERA 189 Gordon Plath of the Department of Environment and Climate Change v Fish [2010] NSWLEC 144; (2010) 179 LGERA 386 Harris v Harrison [2014] NSWCCA 84; (2014) 86 NSWLR 422 Hawkesbury City Council v Johnson; Hawkesbury City Council v Johnson Property Group Pty Limited [2008] NSWLEC 138 Hawkesbury City Council v Johnson; Hawkesbury City Council v Johnson Property Group Pty Limited (No 2) [2009] NSWLEC 6; (2009) 210 LGERA 34 Heatscape Pty Ltd v Mahoney (No 2) [2016] NSWLEC 45; (2016) 217 LGERA 332 Hili v R; Jones v R [2010] HCA 45; (2010) 242 CLR 520 Hoare v The Queen [1989] HCA 33; (1989) 167 CLR 348 Hoffenberg v The District Court of New South Wales [2010] NSWCA 142 Holroyd City Council v Khoury (No 3) [2011] NSWLEC 210 Hornsby Shire Council v Henlong Property Group Pty Ltd (No 2) [2019] NSWLEC 17 Hunter Water Board v State Rail Authority of New South Wales (No 2) (1992) 75 LGRA 22 Johnson v The Queen [2004] HCA 15; (2004) 78 ALJR 616 Jones v R [2010] HCA 45 Lake Macquarie City Council v Australian Native Landscapes Pty Ltd [2015] NSWLEC 92 Lavorato v The Queen [2012] NSWCCA 61; (2012) 82 NSWLR 568 Liverpool City Council v Leppington Pastoral Co Pty [2010] NSWLEC 170 Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 Matheson v Director of Public Prosecutions (NSW) [2008] NSWSC 550; (2008) 185 A Crim R 83 Mill v The Queen [1988] HCA 70; (1988) 166 CLR Minister for Planning v Coalpac Pty Ltd [2008] NSWLEC 271 Minister for Planning v Hunter Quarries Pty Ltd [2010] NSWLEC 246 Minister for Planning v Moolarben Coal Mines Pty Ltd [2010] NSWLEC 147; (2010) 175 LGERA 93 Mosman Municipal Council v Menai Excavations Pty Ltd [2002] NSWLEC 132; 122 LGERA 89 Mouawad v The Hills Shire Council [2013] NSWLEC 165; (2013) 199 LGERA 28 Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120 Newcastle City Council v Pace Farm Egg Products Pty Ltd [2002] NSWLEC 66 Parramatta City Council v Cheng [2010] NSWLEC 94 Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610 Pesic v Sutherland Shire Council [2019] NSWLEC 38 Pham v R [2015] HCA 39; (2015) 256 CLR 550 Pittwater Council v Scahill [2009] NSWLEC 12; (2009) 165 LGERA 289 Plath v Rawson [2009] NSWLEC 178; (2009) 170 LGERA 253 Plath v Vaccount Pty t/as Tableland Timbers [2011] NSWLEC 202 R v Baugh [1999] NSWCCA 131 R v Dodd (1991) 57 A Crim R 349 R v Harris [2007] NSWCCA 130; (2007) 171 A Crim R 267 R v MAK; R v MSK [2006] NSWCCA 381; (2006) 167 A Crim R 159 R v Nichols (1991) 57 A Crim R 391 R v Olbrich [1999] HCA 54; (1999) 199 CLR 270 R v Oliver (1980) 7 A Crim R 174 R v Paris [2001] NSWCCA 83 R v Piccin (No 2) [2001] NSWCCA 323 R v Thomson; R v Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383 R v Toohey [2019] NSWCCA 182 R v Visconti [1982] 2 NSWLR 104 R v Wheeler [2000] NSWCCA 34 Secretary, Department of Planning and Environment v AGL Upstream Infrastructure Investments Pty Ltd [2017] NSWLEC 2 Secretary, Department of Planning and Environment v Boggabri Coal Pty Limited [2014] NSWLEC 154 Secretary, Department of Planning and Environment v Charbon Coal Pty Ltd [2016] NSWLEC 106 Secretary, Department of Planning and Environment v Leda Manorstead Pty Ltd [2018] NSWLEC 114 Secretary, Department of Planning and Environment v Leda Manorstead Pty Ltd (No 4) [2019] NSWLEC 58 Secretary, Department of Planning and Environment v Leda Manorstead Pty Ltd (No 6) [2020] NSWLEC 68 Secretary, Department of Planning and Environment v Leda Manorstead Pty Ltd (No 5) [2020] NSWLEC 65 Secretary, Department of Planning, Industry and Environment v Auen Grain Pty Ltd; Merrywinebone Pty Ltd; Greentree; Harris (No 2) [2020] NSWLEC 126 Sydney South West Area Health Service v Stamoulis [2009] NSWCA 153 Terrey v Department of Environment, Climate Change and Water [2011] NSWLEC 141 The Queen v De Simoni [1981] HCA 31; (1981) 147 CLR 383 Thorneloe v Filipowski [2001] NSWCCA 213; (2001) 52 NSWLR 60 Veen v The Queen [1979] HCA 7; (1979) 143 CLR 458 Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465 Walden v Hensler [1987] HCA 54; (1987) 163 CLR 561 Water NSW v Barlow [2019] NSWLEC 30; (2019) 244 LGERA 1
Category:	Sentence
Parties:	Secretary, Department of Planning and Environment (Prosecutor) Leda Manorstead Pty Ltd (Defendant)
Representation:	Counsel: J Single SC with A Garsia (Prosecutor) A Galasso SC with B Anniwell (Defendant) Solicitors: Department of Planning, Industry and Environment (Prosecutor) Mills Oakley (Defendant)
File Number(s):	2017/186631, 2017/186632, 2017/186634, 2017/186635