Wingecarribee Shire Council v O'Shanassy (No 6)

[2015] NSWLEC 138

Land and Environment Court

New South Wales

Medium Neutral Citation:	Wingecarribee Shire Council v O’Shanassy (No 6) [2015] NSWLEC 138
Hearing dates:	10, 11, 12, 14, 17, 19 and 21 March, 14, 15, 16 and 17 April, 19 and 21 May, 15 and 16 September 2014
Date of orders:	21 August 2015
Decision date:	21 August 2015
Jurisdiction:	Class 5
Before:	Pepper J
Decision:	See orders at [255].
Catchwords:	SENTENCING: unlawful earthworks and the removal of trees and vegetation absent development consent – applicable sentencing principles – objective factors – subjective factors – late change of plea to guilty during hearing - determination of appropriate penalty – costs
Legislation Cited:	Environmental Planning and Assessment Act 1979, ss 76A(1)(a), 121B , 125 Crimes Sentencing Procedure Act 1999, ss 3A, 21A, 22 and 23 Criminal Procedure Act 1986, ss 257B and 257G Fines Act 1996, s 6 Native Vegetation Act 2003 Wingecarribee Local Environmental Plan 2010, cls 2.3, 5.8, 5.9, 7.3
Cases Cited:	Alameddine v The Queen [2006] NSWCCA 317 Axer Pty Ltd v Environment Protection Authority (1993) 113 LGERA 357 Bentley v BGP Properties Pty Ltd [2006] NSWLEC 34; (2006) 145 LGERA 234 Cabonne Shire Council v Environment Protection Authority [2001] NSWCCA 280; (2001) 115 LGERA 304 Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 Cessnock City Council v Bimbadgen Estate Pty Ltd (No 2) [2011] NSWLEC 140 Cessnock City Council v Quintaz [2010] NSWLEC 3; (2010) 172 LGERA 52 Chief Executive of Environment and Heritage v Humphries [2013] NSWLEC 213; (2012) 186 LGERA 442 Chief Executive, Office of Environment and Heritage v Kennedy [2012] NSWLEC 159 Corbyn v Walker Corporation [2012] NSWLEC 75; (2012) 156 LGERA 442 Council of the Municipality of Kiama v Furlong [2009] NSWLEC 139 Director-General of the Department of Environment and Climate Change v Rae [2009] NSWLEC 137; (2009) 168 LGERA 121 Director-General, Department of Environment and Climate Change v Hudson [2015] NSWLEC 110 Director-General, Department of Environment and Climate Change v Walker Corporation Pty Limited (No 4) [2011] NSWLEC 119; (2012) 186 LGERA 442 Environment Protection Authority v Barnes [2006] NSWCCA 246 Environment Protection Authority v Moolarben Coal Operations Pty Ltd [2012] NSWLEC 65 Environment Protection Authority v Orica Australia Pty Ltd (the Nitric Acid Air Lift Incident) [2014] NSWLEC 103; (2014) 206 LGERA 239 Environment Protection Authority v Queanbeyan City Council (No 3) [2012] NSWLEC 220; (2012) 225 A Crim R 113 Environment Protection Authority v Waste Recycling and Processing Corporation [2006] NSWLEC 419; (2006) 148 LGERA 299 Fairfield City Council v Hanna [2007] NSWLEC 343 Garrett On Behalf of the Director-General of the Department of Conservation and Environment v House [2006] NSWLEC 492 Garrett v Williams [2007] NSWLEC 56 Gittany Constructions Pty Limited v Sutherland Shire Council [2006] NSWLEC 242; (2006) 145 LGERA 189 Gore v The Queen; Hunter v The Queen [2010] NSWCCA 330; (2010) 208 A Crim R 353 Harrison v Perdikaris [2015] NSWLEC 99 Hili v The Queen; Jones v The Queen [2010] HCA 45; (2010) 242 CLR 520 Hurstville City Council v Naumcevski [2011] NSWLEC 226 Ku-ring-gai Council v Abroon [2011] NSWLEC 1 Lane Cove Council v Wu [2011] NSWLEC 43 Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 Mosman Municipal Council v Menai Excavations Pty Ltd [2002] NSWLEC 132; (2002) 122 LGERA 89 Muldrock v R [2011] HCA 39; (2011) 244 CLR 120 North Sydney Council v Perini (No 2) [2013] NSWLEC 91 Pittwater Council v Scahill [2009] NSWLEC 12; (2009) 165 LGERA 289 Plath v Hunter Valley Property Management Pty Ltd [2010] NSWLEC 264 Plath v Rawson [2009] NSWLEC 178; (2009) 170 LGERA 253 Port Macquarie-Hastings Council v Notley (No 2) [2013] NSWLEC 220 R v Morgan (1993) 70 A Crim R 368 R v Olbrich [1999] HCA 54; (1999) 199 CLR 270 R v Storey [1998] 1 VR 359; (1996) 89 A Crim R 519 R v Thomson; R v Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383 Regina v Daetz; Regina v Wilson [2003] NSWCCA 216; (2003) 139 A Crim R 398 Secretary, Department of Planning and Environment v Boggabri Coal Pty Limited [2014] NSWLEC 154 Siganto v R [1998] HCA 74; (1998) 194 CLR 656 The Council of the Municipality of Kiama v Pacific Real Estate (Warilla) Pty Ltd [2009] NSWLEC 191 Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465 Veen v The Queen [1979] HCA 7; (1979) 143 CLR 458 Waste Recycling and Processing Corporation [2006] NSWLEC 419; (2006) 148 LGERA 299
Category:	Sentence
Parties:	Wingecarribee Shire Council (Prosecutor) Paul Gerard O’Shanassy (Defendant)
Representation:	Counsel: Mr T Howard SC (Prosecutor) Mr M Pesman SC and Ms C Novak (Defendant) Solicitors: Swaab Attorneys (Prosecutor) N/A (Defendant)
File Number(s):	51130 of 2012

Judgment

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

1. On the periphery of the picturesque town of Mittagong in the Southern Highlands there are a number of semi-rural properties located on Ranges Road.

2. The defendant, Mr Paul O’Shanassy, owns one of these properties, which is located at Lot 11 in DP1010798, or 621 Range Road, Mittagong, known as “Ballingarry” (“the property”). Prior to the commission of the offence, the dwelling on Lot 11 sat nestled into the base of a bucolic treed ridgeline that ran around the north-east, east and south-east sides of the property.

3. Relevantly, adjoining this property were a number of parcels of land owned by Mr O’Shanassy’s neighbours (“the land”):

1. Lot 12 in DP1010798, at 635 Range Road, Mittagong, owned by Mr John Uliana and Mrs Elizabeth Uliana (“the Ulianas”);

2. Lot 1 in DP878237, at 601 Range Road, Mittagong, owned by Mr John Lynch and Mrs Karen Lynch (“the Lynchs”); and

3. Lot 4 in DP 878237, at 30 Nannas Lane, Mittagong, owned by Mr Joseph Lorincz. On 1 December 2010 Mr Lorincz exchanged contracts to purchase this property from Mr Colin Dunn and Mrs Innes Dunn (“the Dunns”). The purchase was completed on 1 June 2011 and his occupation commenced on 30 September 2011.

4. Mr O’Shanassy was charged with an offence contrary to s 125(1) of the Environmental Planning and Assessment Act 1979 (“the EPAA”), in that between 1 May 2011 continuing to May 2012, he carried out development on the land, which was subject to an environmental planning instrument – the Wingecarribee Local Environmental Plan 2010 (“the LEP”) – that required development consent to be obtained, and absent approval, he breached s 76A(1)(a) of that Act.

5. In particular, cl 7.3 of the LEP applied to the land and required development consent for the undertaking of earthworks. Mr O’Shanassy nevertheless carried out earthworks on the land which consisted of excavation of clay and rock estimated well in excess of 10,000m³, by the use of heavy machinery and associated works, and the removal of trees and vegetation. The development was carried out by civil works and engineering contractors who were retained by Mr O’Shanassy for the purpose of carrying out the excavation and who were instructed by him to carry out the development.

6. Mr O’Shanassy originally pleaded not guilty to the charges laid by the prosecutor, Wingecarribee Shire Council (“the council”). However, on 21 May 2014, after 12 days of hearing protracted over a period of three months, Mr O’Shanassy changed his plea from not guilty to guilty.

7. It should be observed that in addition to the late plea of guilty, part of the reason for the excessive length of the sentencing proceedings was because Mr O’Shanassy was self-represented for the majority of it. The Court was therefore extremely grateful that Mr M Pesman SC and Ms C Novak of counsel, in difficult circumstances, at short notice, and after much of the evidence had already been heard by the Court, accepted the brief to represent Mr O’Shanassy, and proceeded to do so in the highly competent manner in which they did.

8. This judgment sets out the Court’s reasons for its imposition of a monetary penalty in the sum of $93,500, together with the order that Mr O’Shanassy pay the council’s costs of the proceedings, which will, given their duration, be considerable.

9. Many of the facts giving rise to the commission of the offence were, after the change of plea, able to be distilled from the voluminous evidence relied upon by the parties up to that point into an agreed statement of facts. Dispute nevertheless remained in respect of some key events, which is elaborated upon below.

The LEP and its Application to the Land

10. It was not a matter of contention that the LEP applied to the land, which was zoned Zone E3 Environmental Management in the instrument. Development within this zone is subject to the controls set out in cl 2.3 of the LEP in conjunction with the Land Use Table. Accordingly, having regard to these provisions, development for the purpose of a dwelling may not be carried out except with development consent.

11. Furthermore, cl 7.3 of the LEP relevantly requires development for earthworks, subject to certain exceptions:

7.3 Earthworks

(1)    The objectives of this clause are as follows:

(a)    to ensure that any earthworks will not have a detrimental impact on environmental functions and processes, neighbouring uses or heritage items and features surrounding land,

(b)    to allow earthworks of a minor nature without separate development consent.

(2)    Development consent is required for earthworks unless:

(a)    the work does not alter the ground level (existing) by more than 800 millimetres, or

(b)    the work is exempt development under this Plan or another applicable environmental planning instrument, or

(c)    the work is ancillary to other development for which development consent has been granted.

12. And cl 5.9 relevantly mandates development approval for certain works impacting vegetation:

5.9 Preservation of trees or vegetation

(1)    The objective of this clause is to preserve the amenity of the area, including biodiversity values, through the preservation of trees and other vegetation.

(2)    This clause applies to species or kinds of trees or other vegetation that are prescribed for the purposes of this clause by a development control plan made by the Council.

Note : A development control plan may prescribe the trees or other vegetation to which this clause applies by reference to species, size, location or other manner.

(3)    A person must not ringbark, cut down, top, lop, remove, injure or wilfully destroy any tree or other vegetation to which any such development control plan applies without the authority conferred by:

(a) development consent, or

(b) a permit granted by the Council.

…

(8)    This clause does not apply to or in respect of:

(a)    the clearing of native vegetation:

(i)    that is authorised by a development consent or property vegetation plan under the Native Vegetation Act 2003 , or

(ii)    that is otherwise permitted under Division 2 or 3 of Part 3 of that Act, or

(b) the clearing of vegetation on State protected land (within the meaning of clause 4 of Schedule 3 to the Native Vegetation Act 2003 ) that is    authorised by a development consent under the provisions of    the Native Vegetation Conservation Act 1997 as continued in force by    that clause, or

(c)    trees or other vegetation within a State forest, or land reserved from    sale as a timber or forest reserve under the Forestry Act 1916 , or

(d)    action required or authorised to be done by or under the Electricity Supply Act 1995 , the Roads Act 1993 or the Surveying and Spatial    Information Act 2002, or

(e) plants declared to be noxious weeds under the Noxious Weeds    Act 1993.

Note : Permissibility may be a matter that is determined by or under any of these Acts.

13. Initially, Mr O’Shanassy sought to argue that he was permitted to remove the trees and vegetation under the Native Vegetation Act 2003, and therefore, approval was not required pursuant to cl 5.9(8) of the LEP. However, immediately prior to the penultimate hearing day of the trial, he disavowed any reliance on this submission.

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

14. On 11 October 2001, the council granted development consent for the erection of a house on Lot 11, namely, development consent LUA 01/1210 (“the 2001 development consent”).

15. Importantly, condition 14 of the 2001 development consent provided that “the ridgelines of the highest point of the roof shall not exceed RL 105.5. This level reflects the relative levels as specified in the approved plans”.

16. The reason for the imposition of this condition emerged from events which preceded the determination of the development application, namely, after an inspection of Lot 11, at an ordinary council meeting on 26 September 2001, the council’s Inspection Committee recommended that “the highest point of the roof of the residence be below the adjacent ridge line and that the site be landscaped including background planting of advanced trees to soften the development.” The recommendation was adopted by the council. The resolution accorded with the policy and practice of the council’s planners to endeavour to locate houses and buildings below the physical ridgeline.

17. It was recorded in the minutes of that meeting that Mr O’Shanassy queried the recommendation and the requirement, to which the council’s Director of Environment and Planning is recorded as having advised that the roofline had to remain lower than the ridgeline.

18. At its ordinary meeting of 10 October 2001, the council was presented with a supplementary report in relation to the proposed residence at Lot 11 which addressed the issue of the height of the residence relative to the ridgeline. The recommendations, made by the Acting Director of Environment and Planning of the council, and endorsed by the General Manager, were that the application be approved, subject to:

i.   the ridgeline of the highest point not exceeding 105.5 metres;

ii.   landscaping being installed to a plan approved by Council in accordance with the Guidelines for Landscape Conservation Zones;

iii.   the existing mature Eucalypt trees being retained on the site.

19. Consistent with condition 14 of the 2001 development consent, sheet two of two of the 2001 development consent approved plans depicted on the south, a sloping elevation forming a “natural ridge” to the east of the proposed house with a ridge line (“RL”) of 106 metres.

20. Additionally, consistent with the recommendation made on 10 October 2001, sheet two of two of the 2001 development consent approved plans depicted the retention of the ridgeline to the east of the house and included the specific notation “existing mature Eucalypts to be retained”.

21. The 2001 development consent plans revealed that excavation of the ground level in the footprint of the house and its close surrounds was necessary and permissible to construct the house so that its roof remained below the ridgeline to the east. The area where the natural ground level shown on the approved plans was to be excavated was depicted as being confined to the footprint of the house and an area adjacent to the house and did not extend to the predominant portion of the ridgeline to the east of the house.

22. Condition three of the 2001 development consent provided that “natural ground levels are not to be altered or adjusted other than shown on the approved plans without the prior consent of Council”.

23. The effect of condition three and the depiction of the limited area on the approved plans was to limit permissible excavation of the ridgeline to the east of the house, within an area designated by a dashed line on the approved plan.

24. Therefore, it was clear that as at the time of the 2001 development consent, the ridgeline was to be retained, together with the mature eucalypts on it.

25. A construction certificate (“CC”) for the house was issued by the council on 13 May 2002, together with the CC approved plans. The CC increased the permissible height of the roof of the house from RL 105.5 to RL 106, which had the effect of reducing the depth of excavation required for the footprint of the house by 0.5m. The CC and its approved plans did not otherwise alter the requirement as to the limit of excavation shown on the development consent approved plans.

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

26. Construction on the house on Mr O’Shanassy’s property was completed in early 2003.

27. Mr O’Shanassy occupied the house with his then wife, Ms Lana Lake, and their children, from about April 2003. From May 2012, Ms Lake ceased occupation of the house, but Mr O’Shanassy continued to reside there.

28. After the house had been built, the hillside or ridgeline to the east of the house and the mature eucalyptus trees on it remained a topographical feature of the land. Photographs taken by the council as part of the issue of the CC for Lot 11, probably taken in 2005–2006, depicted parts of the ridgeline and its relationship with the house on Mr O’Shanassy’s property. Although Mr O’Shanassy submitted that the photographs had probably been taken around 2002 at the time that the CC was issued, the better view is that they were taken around 2005 when the occupation certificate was issued, given that the photographs indicate that the house was occupied at the time they were taken. Ultimately, very little turns on this, especially in light of later photographs of the intact ridgeline

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

29. On 13 October 2009, Mr O’Shanassy met with Mr James Allman, a registered architect and principal of Allman Johnston Architects (“Allman Johnston”), on his property. During that meeting, Mr O’Shanassy and Ms Lake discussed general concepts for a proposed extension to the house on Lot 11 with Mr Allman in order for him to prepare a fee agreement for the engagement of his services to design the extension and submit a combined development and construction certificate application to the council.

30. Mr Allman sent the fee agreement to Mr O’Shanassy on 13 October 2009. It was not executed, and for various reasons the project did not go ahead at that time.

31. On 22 October 2010, the council granted development consent for subdivision relating to a boundary adjustment in respect of Lot 11 and the adjacent Lot 12 (“the boundary adjustment”). The approved boundary was identified on a plan, stamped as approved by the council, entitled “Plan of proposed boundary adjustment of lots 11 & 12 DP 1010789 Range Road, Mittagong”. The boundary adjustment was, however, never registered.

32. On 14 November 2010, Mr O’Shanassy executed a retainer agreement with Allman Johnston with respect to proposed alterations and additions to the house on Lot 11, pursuant to which Allman Johnston was engaged “to prepare a design and documentation suitable for submission of a combined development and construction certificate application to Wingecarribee Shire Council”.

33. Photographs were taken of Lot 11 by Mr Allman on 15 November 2010 for the purposes of drawing up the plans for the proposed extension to Mr O’Shanassy’s house (“the Allman photographs”). The photographs included areas around the house. They show the ridge or hillside to be intact, with no excavation works in progress.

34. On 2 December 2010, Allman Johnston prepared its first set of architectural drawings for the extension (Issue A). Drawing No DA-A-1001 depicted, among other things, a “bedroom wing” with an area of 227.16m² extending to the east of the house at a floor level of RL 100, which was the same as the floor level of the existing house. This proposed new wing was shown to extend to within 11.959m of the eastern boundary of Lot 11. The bedroom wing extension could not be built at the nominated floor level of RL 100 without there being substantial excavation of the ridgeline.

35. Further revisions of the drawings prepared by Allman Johnston were prepared in the period between 2 December 2010 and 15 December 2010. Revised concept drawings were prepared and issued on 2 August 2011(Issue F), 14 September 2011 (Issue G) and 20 September 2011 (Issue H). By the time these revised concept drawings had been prepared, the earthworks carried out during the charge period had commenced, including the removal of the ridgeline and the creation in its place of a levelled area at just below RL 100 in the position where the proposed new bedroom wing was depicted in the Allman Johnston drawings.

29. Issue H of the drawings prepared by Allman Johnston on 20 September 2011, depicted the bedroom wing extending further to the east than the earlier revisions of the drawings prepared in December 2010. The plans of December 2010 depicted the house as extending to within 11.959m of the eastern boundary, whereas the 20 September 2011 plans depicted the bedroom wing extending to within 4.597m of the eastern boundary – a further 7.4m into the area where the ridgeline had been. These plans also depicted two garages with floor levels marginally below RL 100 to the east and south east of the house. At the time these plans were drawn, the excavation of the area on Lot 11 where the proposed new bedroom was to be located to level of just below RL 100 was well underway and was approaching completion.

The Earthworks

37. During the charge period (1 May 2011–May 2012), Mr O’Shanassy carried out bulk earthworks on Lot 11 absent development consent as required under the LEP.

38. The earthworks were carried out by civil work contractors engaged by Mr O’Shanassy. They used heavy machinery, including excavators, bulldozers and trucks. The works involved the excavation of earthen material and rocks in the area generally to the north and east of the house at Lot 11, and the transport and deposition of the spoil on a fill area on Lot 12, the Uliana’s property, to the southeast of Lot 11 (“the earthworks”).

39. The earthworks were carried out in the nature of a ‘cut and fill’ exercise, involving excavation principally at Lot 11, but also on Lot 1 and Lot 4 (Mr Lorincz’s property), and transport and deposition of that excavated material as fill on an area within Lot 12.

40. The earthworks involved the associated removal of trees and vegetation which had been present in the area where the bulk excavation occurred to the east of the house at Lot 11.

41. The earthworks may, on any view, be characterised as extensive in scale. This was evidenced by various aerial photographs showing the extent of the excavation, transport and deposition of fill.

42. At all times up to and immediately before the commencement of the earthworks during the charge period, the ridgeline was a topographical feature of the land at the east of Lot 11, extending from a point at Lot 4, northeast of Lot 11, to a point on Lot 12 southeast of Lot 11. The toe (or initial elevation) of the ridgeline commenced on the boundary between Lot 4 and Lot 11, near the southern boundary of Lot 4 and approximately to the south-west of the house on that Lot. The ridgeline continued to rise in elevation in a southerly direction, approximately along the boundary to Lots 11 and 12, and rose and curved in a south-easterly direction on Lot 12.

43. Photographs (from the council files, the Allman photographs and those taken by Ms Lana Lake, Mr O’Shanassy’s estranged wife, in early 2011) of the ridgeline as it existed before the earthworks were before the Court, demonstrating the extent to which the ridgeline was a prominent feature of the land at Lot 11. The natural ridgeline, its curvature and elevations (showing the highest point of the hillside at approximately 104.1m) as it existed before the charge period in 2007 was also depicted on a plan dated 25 July 2002 (“the Freeburn plan”).

44. Prior to the removal of the ridgeline, a person standing at the floor level of the dwelling at Lot 11 or in the flat area immediately to the east of the house could not see over the ridgeline to the views beyond it.

45. The earthworks involved the removal of the majority of the ridgeline, transforming that part of it located on Mr O’Shanassy’s land into a relatively level area approximately at the same level as the floor level of the house on Lot 11. After these works were carried out a person standing on the floor level of the house or to its east could see the panoramic view beyond where the ridgeline had been.

46. The evidence demonstrated that not all of the hillside was removed by Mr O’Shanassy. Part of the ridgeline on Lot 12, for example, was retained. But even so, the hillside on Lot 12 was irremediably altered without the necessary consent.

47. The earthworks were carried out by contractors engaged by Mr O’Shanassy, including:

1. Mr William Symonds’ civil works team, then trading as Southern Plant Hire and Excavations;

2. Mr Beau Woodward; and

3. Mr Shane White, trading as Whites Excavators & Earthmoving.

48. Mr Symonds’ civil works team carried out earthworks at Lot 11 under contract with Mr O’Shanassy for approximately 16–18 days during the period between August and September 2011, working about seven hours per day with a 22 tonne excavator, a D4H Caterpillar dozer and two tip trucks.

49. Mr Woodward carried out earthworks at Lot 11 under contract with Mr O’Shanassy in the period between 9 January 2012 and at least January or early February 2012. It is not entirely clear what equipment he used but the evidence suggests it included a “drott” or bulldozer.

50. Mr White carried out earthworks in the period between April 2012 to at least May 2012, using two large excavators and a dump truck.

The Removal of Trees and Vegetation

51. The removal of trees and vegetation during the charge period carried out in association with the earthworks included the removal of about six to nine large eucalyptus trees. The trees were approximately 20m in height, previously standing on the section of the ridgeline that was cut away at Lot 11. Some of them had, however, been subject to storm damage prior to their removal.

52. The council submitted that these very large trees were a prominent feature of the landscape. This may be accepted. More equivocal, however, is the submission by the council that the trees provided the occupants of Lot 4 (Mr Lorincz’s property) with amenity, predominantly in the form of protection from the south-westerly winds and shade from the afternoon sun during the summer months. I agree with Mr O’Shanassy that the evidence of this purported amenity does not rise to the criminal standard given that Mr Lorincz did not commence occupation of Lot 4 until 30 September 2011, that is to say, after the trees were removed.

53. By 30 September 2011, other smaller trees and vegetation had also been removed.

54. The scale of the removal of trees and vegetation undertaken in the period from June 2011 to November 2011 was discernible to a degree by comparing a photograph taken from a Cessna plane on 15 May 2011 by Mr David Evans, with the state of the land demonstrated by aerial photos taken by Mr Lorincz on 14 November 2011. A comparison of two photographs, one taken on 2 August 2011 and one taken on 25 October 2011, starkly demonstrated the felling of two very large eucalyptus trees, in addition to the removal of smaller trees and vegetation on the slope between those trees.

The Two Phases of the Earthworks

55. The earthworks and associated removal of trees and vegetation carried out on Lot 11 during the charge period can be divided into two temporal phases, separated by the issuing by the council to Mr O’Shanassy of a letter dated 5 December 2011, in which the council conditionally indicated that it had no objection to interim works identified in a report completed by Rein Warry & Co Surveyors on 3 November 2011 (“the Rein Warry report”) being carried out.

56. The first phase of the earthworks comprised that part of the works carried out between 1 May 2011 and about 13 October 2011 (“the 2011 works”). The latter date being the date of the second of two council inspections of Lot 11 in October 2011.

57. The second phase comprised the remainder of the earthworks, which was carried out after the council had sent its letter of 5 December 2011 consenting to the interim works. Most, if not all, of this second phase of development was carried out between January 2012 and about May 2012 (“the 2012 works”).

58. There can be no doubt that the 2012 works were necessitated by the carrying out by Mr O’Shanassy of the 2011 works without development consent.

59. The 2011 works comprised by far the majority of the overall earthworks on the land, and most, if not all, of the associated removal of trees and vegetation.

60. Mr O’Shanassy’s surveyor, Mr Darryl Warry, surveyed the land on 12 October 2011 (“the Rein Warry October 2011 survey”) and produced three survey sheets dated 29 October 2011. The extent of the 2011 works were discernible from the Rein Warry October 2011 survey and from a collection of photographs taken by Mr Lorincz at ground level in October 2011 and from 500ft above the ground from an aircraft on 14 November 2011. What is shown in the aerial photographs is consistent with Mr Warry’s observations when he carried out his 12 October 2011 survey.

61. The area of land generally to the east of Lot 11 where the ridgeline had been modified by the earthworks to create a relatively flat area over an area of approximately 3,065m². The earth and rock removed from that area was placed as fill onto Lot 12, creating a mound in that area. The total area of the land the subject of the cut and fill exercise marginally exceeded 1ha.

62. On 1 December 2010, Mr Lorincz exchanged a contract for the purchase of Lot 4 from Mr and Mrs Dunn. On 15 May 2011, he flew over Lot 4 and the surrounding land in a Cessna plane at a height of approximately 500ft from the ground and did not observe any earthworks, land clearing or tree felling on Lot 4, Lot 11 or the surrounding lots.

63. On 31 May 2011, the day before settlement of the Lorincz’s purchase of Lot 4, Mr Lorincz walked around the boundary of Lot 4 and did not observe any earthworks, land clearing or tree felling on Lot 4, Lot 11 or surrounding lots.

64. On 29 July 2011, Mr Lorincz flew over the land in a Cessna plane at about 500ft above the ground and saw that excavation at Lot 11 had taken place. Then, on 2 August 2011, he walked up to the top part of Lot 4, next to Lot 11 and observed that the original ridgeline running across and into Lot 4 had, together with vegetation, been removed, ground levels had been cut on Lot 4, that spoil had been pushed over the slope down onto his land, and that excavation had occurred into the ridgeline to the east of the house on Lot 11 with a vertical cut of 3 to 4m in height, which, at that stage, extended horizontally about 4m into the ridgeline.

65. The council submitted that a cut of approximately 1.4 to 1.5m to ground levels had been made by Mr O’Shanassy based on the evidence of Mr Lorincz (who estimated that ground levels had been excavated by approximately 1.5m based on his wife standing at the cut and the height of the excavation being approximately the same size as her) and the survey evidence of Mr Warry.

66. I accept Mr O’Shanassy’s criticism that the estimate of Mr Lorincz was unreliable. In giving it, he failed to taken into account a pre-existing undulation on the boundary line between Lots 4, 1 and 11, which would make this evidence unreliable. The undulation, or drop in elevation, (a natural downward gradient slope within Lot 11 proceeding in a northerly direction onto Lots 4 and 1) is demonstrated by examining the Freeburn Plan. The undulation is also consistent with Mr Shannon Webb’s evidence (a town planner employed by the council, who affirmed affidavits in the proceedings on 8 November 2012 and 25 September 2013) of an approximate change of level of 1m.

67. Were this the only evidence relied upon by the council, its submission concerning the size of the cut would have been rejected. But persuasive evidence was also obtained from Mr Warry who, under cross-examination, indicated that he had surveyed the cut and its height range was “about 1.4, 1.5m” (T879.33). I therefore find that this was the height of the cut.

68. By 30 September 2011, the cut into the ridgeline had extended right through the ridgeline for a distance of about 40–45m.

69. By 12 October 2011, the 2011 works had reached the point as surveyed by the Rein Warry October 2011 survey. On the instruction of the council, these works were brought to a halt at around mid-October 2011. The altered physical state of the land at Lot 11 after the carrying out of the 2011 works was shown in photographs taken by Mr Lorincz in October and November 2011.

70. Part of the 2011 works, including removal of trees and vegetation, and the excavation of the area to the north of the house on Lots 1 and 4, was carried out in the period from 1 May 2011 to August 2011. Mr O’Shanassy was present when the large eucalyptus trees on the ridgeline were pushed over with an excavator. These early works were carried out before Mr Symonds’ team commenced work on the site. Mr Symonds began work in August 2011, which Mr Symonds recalled because it was shortly after his brother-in-law had a heart attack. The works carried out prior to Mr Symonds being engaged included the excavation of the area to the north of Lot 11 and the cutting down of the trees.

71. When Mr Symonds arrived on the site to commence works, Mr O’Shanassy handed him a survey plan that detailed the levels he wanted to achieve. Mr Symonds recalled that it required excavation of up to 4.8m in height. Although this fact was disputed by Mr O’Shanassy, no evidence to the contrary was put before the Court to warrant its rejection. I therefore accept the evidence of Mr Symonds, upon which it is based.

72. Mr Symonds, an experienced civil works contractor, estimated, by use of a measuring wheel and laser level, that about 16,000m³ of heavy clay and rock had been excavated and tipped. However, when cross-examined, he characterised the estimate of 16,000m³ as a prospective estimate and said “I think we moved about 14,000 cubic metres of it”.

73. His estimate was based on his evidence that his team worked on the site for 16–18 days using a 22 tonne excavator, two bogie axle tip trucks and a D4H Caterpillar bulldozer and, for a couple of days, a 30 tonne dump truck. His team worked with the machines for about seven hours per day. The excavator was excavating rock, clay and soil and putting it into the trucks. The trucks were then transporting the excavated material to the spoil area and dumping it there and the bulldozer was levelling, shaping and compacting the fill.

74. Mr Symonds explained that, in normal working conditions, the 22 tonne excavator machinery he was using could excavate 1,000m³ per day but that rates of excavation on the land were a bit slower than 1,000m³ per day due to machinery breakdowns and inclement weather.

75. In my opinion, sufficient doubt surrounds the estimates given by Mr Symonds that they cannot be accepted. Nevertheless, there is no doubt on the evidence that well in excess of 10,000 m³ of material was excavated.

76. The area which had been cut and levelled to the east of the house on Lot 11 extended from the rear of the house in an easterly direction for a distance of 48–55m and this levelled cut area extended across Lot 11 (north to south) for a distance of about 40–45m.

77. Photographs taken by Mr Lorincz at ground level on 7 October 2011 demonstrated that:

(a)   the cut half way along the vehicle ramp was 2.5m in height;

(b)   as the cut adjacent to the vehicle ramp started to curl around to the west, the cut was as high as approximately 4m with the highest cut approximately 4.1m at the southern boundary of Lot 11 where the proposed boundary adjustment started; and

(c)   the heights of the cut from the vehicle ramp extending east to the easterly extent of the cut, ranged up to a height of about 5.6m.

78. The 2011 works also involved excavation of an area to the north of the house on Lot 11, on parts of Lot 1 (the Lynchs’ property) and Lot 4 (Mr Lorincz’s property) and the pushing of the spoil down the slope on Lot 4. This area of the earthworks to the north of Lot 11 was displayed in aerial photos taken by Mr Lorincz on 14 November 2011. These photographs showed a cut along the northern boundary of Lot 11 with excavation to the north of that boundary.

79. The cut on the northern boundary between Lot 11 and Lots 1 and 4, and the concomitant spoil, was shown in photographs taken by Mr Lorincz at ground level on 7 October 2011.

80. The council submitted that spoil or fill was deposited across a total area of 7,026m² on Lot 12 as a result of the 2011 works, based on the surveys conducted by Mr Ian Pearse (a surveyor from Landteam) and Mr Warry. The area was in excess of 100m in length (north to south) along its longest dimension and was about 100m across (east to west) at its widest point.

81. According to the council, the fill had depth of more than 850mm visible to Mr Warry’s naked eye. Mr Warry was not able to estimate by how much the depth of fill exceeded 850mm, but he accepted that, on the assumption that a television aerial on Lot 12 was located at the highest point of the ridgeline prior to the works commencing, the depth of fill was likely to be in excess of 1.64m in the area on Lot 12 where it fell away from that high point, and at one point would have been in excess of 2.5m.

82. Mr O’Shanassy disputed that the aerial was located on the highest point of the hillside, submitting that it was to the south of that point. However, the assumption that the aerial was the highest point of the hill prior the 2011 works commenced was consistent with the evidence of My Symonds, who made a similar observation in his evidence based upon a site visit with Mr O’Shanassy, who drove him around in an all-terrain vehicle prior to the excavation works commencing. It is also consistent with the Freeburn Plan and Mr Lorincz’s observational evidence. I accept the council’s submissions in this regard.

83. Mr Symonds also gave evidence probative of the scale of the filling exercise and the depth of fill on Lot 12 under cross examination by Mr O’Shanassy as follows (T557.25-29):

Now what arrangement you had with the neighbour I don’t really know, but all I know that his gardener or caretaker, whatever he was, came up and ripped up me earlier in the piece, because he said you told him it’d only be, you know, two or 300 mil high and we were probably at that stage five metres.

84. On 2 August 2011, Mr Lorincz walked over to Lot 11 and asked Ms Lake about the earthworks undertaken on Lot 4 (Mr Lorincz’s property). She indicated to him that Mr O’Shanassy would call him to explain the works. That evening, Mr O’Shanassy called Mr Lorincz, telling him he had permission from the previous owners of Lot 4, Mr and Mrs Dunn, to undertake the works on Lot 4. During this conversation, Mr O’Shanassy said:

The reason I excavated your land was to drop the level so that if you ever decided to build a fence on the boundary, I won’t have to see it.

85. On 1 October 2011, Mr Lorincz walked up to Lot 11 and spoke with Mr O’Shanassy. When he enquired of Mr O’Shanassy “what is going on here with all this work?”, Mr O’Shanassy replied, “I am doing a big extension to my house”.

86. Mr O’Shanassy told Mr Lorincz that he had permission to carry out the works. Mr Lorincz asked if he could see the approved drawings, whereupon Mr O’Shanassy invited Mr Lorincz into his house and proceeded to place architectural drawings on the table, showing a very large extension to the house on Lot 11 out towards the east in the area where the ridgeline had been excavated. The plans which Mr O’Shanassy showed Mr Lorincz were one of the revisions of the Allman Johnston drawings. Mr Lorincz said to Mr O’Shanassy “these aren’t approved plans, there’s no council stamp on them”, to which Mr O’Shanassy replied, “oh, those ones are with the architects”. Mr Lorincz then asked to see the approved civil drawings, in reply to which Mr O’Shanassy said that they were “with the contractor in Goulburn”. Mr O’Shanassy said that he would send Mr Lorincz the approved architectural and civil drawings “in 3 days”. Mr Lorincz never received any approved drawings.

87. On 6 October 2011, Mr Lorincz attended the council customer service counter and complained to council officers (Ms Natasha Mitchell and Mr Webb) about the works being carried out on Lot 11. He inquired whether an approval had been granted in respect of the works. Mr Webb conducted a search of the council’s records and could not find any consent for earthworks on Lot 11. Mr Webb said that he would go out and have a look at the site.

85. On 6 October 2011, Mr Webb and Ms Mitchell attended Lot 11. On that occasion, Mr Webb observed:

(a)   a large area of disturbed soil on Lot 11 generally to the east of the dwelling, which included sudden and steep changes in level of approximately 5m which appeared to Mr Webb to interrupt a ridgeline that ran in an approximately north-south direction to the east of Lot 11, including a relatively flat “benched area to the east of the dwelling”;

(b)   a truck, bulldozer and excavator, none of which were operating at the time;

(c)   disturbed soil on Lot 4 (Mr Lorincz’s property) including sudden and steep changes in level of approximately one metre near to the boundary with Lot 11; and

(d)   what appeared to Mr Webb to be spoil from excavation spread out over a northern portion of Lot 12 (the Uliana’s property).

89. On 7 October 2011, Mr Webb interrogated the council’s computer records, and identified that Mr O’Shanassy was the owner of the land. He telephoned Mr O’Shanassy, who told him that “the tree removal did not require consent as they were exempt from the legislation and the earthworks were in relation to previous approvals for the dwelling”. Mr Webb indicated that he would check the council’s records. He requested that Mr O’Shanassy stop the works, which he did.

90. On 13 October 2011 Mr Webb again attended Lot 11, this time in the company of Mr Peter Mitchell, the council’s then Team Leader of Environmental Assessments. On this occasion, he observed that further works had been carried out which had reduced the grade of the batter, and that additional spoil had been spread on Lot 12 since the previous inspection, although Mr Webb noted that some measures had been taken apparently in an attempt to control the flow of surface water across the benched area.

91. On 2 November 2011, the council issued to Mr O’Shanassy a Notice of Intention to issue to him with orders 12 and 15 under s 121B of the EPAA (“the s 121B notice”). The terms of the s 121B notice were wide. The s 121B notice was not, it is fair to say, felicitously drafted. At the very least, it required the refilling of the area which had been excavated and associated erosion, as well as sediment control and revegetation. At the very worst, it required the reinstatement of the entirety of the property to its natural landform, including those portions of the land on which the dwelling had been erected.

92. Sometime prior to the s 121B notice being issued, Mr O’Shanassy became aware that the council proposed to issue the notice. Hence, a few days prior to 12 October 2011, Mr O’Shanassy engaged Mr Warry, his surveyor and town planning consultant, to survey the works and to prepare a report making representations to the council in relation to the works, including a submission in relation to the council’s intention to issue the s 121B notice.

93. On 12 October 2011 Mr Warry attended Lot 11 and carried out the survey work for the Rein Warry October 2011 survey. For the purpose of preparing for further works to be carried out, Mr Warry prepared draft survey drawings for Mr O’Shanassy which depicted an interim batter and a final batter. The interim batter as shown on the draft plan reflected the proposal, as an interim measure, to carry out further excavation only insofar as was necessary to stabilise the batter by achieving a batter slope of 2.5 horizontal:1 vertical. The final batter reflected the intention to obtain development approval to extend the level area adjacent to the house on Lot 11 so that the toe of the batter would sit at the proposed new boundary point.

94. Mr Warry sent the proposal contained in his draft plans to Mr O’Shanassy for review on 3 November 2011. In the accompanying letter, Mr Warry noted, as an issue for resolution, that the s 121B notice appeared to require the reinstatement of the entirety of the property to its natural landform, including those portions on which the house had been erected. That is, restoration to the ground level as shown in plans accompanying the original 2001 development consent, which would require demolition of the house.

95. On Mr O’Shanassy’s instructions, Mr Warry amended the draft plans so that the batter which had been proposed as the “final batter” on the draft plans was depicted in the final version of the plans as the “interim batter” and references in Mr Warry’s draft plans to “final batter” were removed. Consequently, the final version of the plans attached to the Rein Warry report did not serve the objectives of Part 4 of the Rein Warry report, but a different objective, namely, to further extend the levelled area so that the toe of the batter was at the new boundary point.

96. On 3 November 2011, Mr Warry prepared and sent to the council a letter enclosing his final report (also dated 3 November 2011), and attaching the final version of the three survey sheets comprising the Rein Warry October 2011 survey which provided commentary and representations, including the “Part 4 Proposed Interim Measures”.

97. Proposed interim measures contained in Part 4 of the Rein Warry report included:

(a)   the implementation of erosion control measures, including the construction of a table drain to ensure runoff from the site drained in a westerly direction toward Range Rd;

(b)   interim “rejuvenation” measures, including covering the site and adjoining properties with rock-free topsoil and planting to improved pastures; and

(c)   the removal or shifting of eucalypt timber and rock debris.

98. Mr Warry’s covering letter of 3 November 2011 comprised a submission in response to the council’s Notice of Intention to issue the s 121B notice. These were submitted on Mr O’Shanassy’s instructions.

99. In Part 6 the Rein Warry report, one of the submissions mooted in support of the proposed interim works was that, by allowing the interim works to be completed, “it does not in any way prejudice [the council’s] rights and remedies against the property owner in the future”.

100. By way of letter to Mr O’Shanassy dated 5 December 2011, the council referred to the Rein Warry report and advised “that no objection is raised to the proposed interim measures as described in Part 4 of the report subject to adjoining owners consent. Please be advised that these works will be carried out on a without prejudice basis”.

101. The interim works the subject of the Rein Warry report were carried out in January 2012 through to December 2012.

102. On about 9 January 2012, Mr Woodward commenced carrying out further earthworks involving excavation in the area to the east and south-east of the house on Lot 11 and placing the spoil in the fill area on Lot 12. Mr Woodward continued to carry out these works until at least late January.

103. The bulk of the 2012 works were, however, carried out by Whites Excavators & Earthmoving between April 2012 and at least May 2012, using two 22 tonne excavators and a dump truck.

104. Two surveyors conducted surveys after the 2012 works had been completed. Mr Pearse conducted a survey of Lot 11 on 26 September 2012, and Mr Warry conducted a “works as executed” survey in August 2013. Mr Pearse and Mr Warry were fundamentally in agreement as to the scale of the 2012 works.

105. It is important to recall that the Rein Warry report had proposed that in the period after October 2011 a small additional amount of fill would be placed on the fill area in Lot 12 to a maximum additional height of around 650mm. The respective surveys of Mr Pearse and Mr Warry established that, upon completion of the 2012 works, the finished height of the fill spread over the 7000m² fill area on Lot 12 averaged about 1m higher than that which had been proposed as additional fill in the Rein Warry report.

106. The council therefore submitted that the volume of fill deposited on Lot 12 as a result of the 2012 works was approximately 7,000m³ relying, in particular, on the affidavit evidence of the surveyor, Mr Pearse. Mr Pearse had stated that his analysis “demonstrate[d] that fill generally exceeding a depth of 1 m was placed on the fill area on Lot 12 in the period between October 2011 and September 2012” and that a fill height of the same magnitude was widespread across the area, being approximately 7,000m³. The oral evidence of Mr Warry (T910.6-911.44) indicated that by August 2013, the fill was an average of 1m in depth higher across its breadth than when he inspected the land in October 2011.

107. Mr O’Shanassy disagreed with this estimated volume relying on a report prepared for the council by Network Geotechnics in October 2013, for the purpose of assessing the instability of the fill area located on Lot 12. The report stated, under the heading “Subsurface,” that although “there was no direct evidence of different stages of filling in terms of age or type of materials”, it appeared that “the filling would have occurred intermittently with signs of traces of vegetation in between fill layers”. That is to say, if some of the fill was deposited in 2011 and again in 2012, this would explain why the average depth of the fill was 1m in excess of that proposed in the Rein Warry report. The 2013 Network Geotechnics report stated that it was “not possible to assess whether the fill had been placed in several stages based on the test pit observations”. Mr O’Shanassy also submitted that it was impossible to discern from any photographs the volume of fill deposited.

108. I cannot find, given the conclusions expressed in the Network Geotechnical report and evidence from Mr Warry to the effect that he observed the spoil to be clumped, and not uniformly spread, across the area where it was deposited, that the council has proven beyond doubt that the volume of fill the result of the 2012 works amounted to 7000m³. Having said this, as demonstrated by various photographs, the total volume of spoil was, on any view, quite substantial.

109. The scale of the 2012 works, and their progress in the period from January to May 2012, was demonstrated by a series of photographs taken by Mr Lorincz in the period from 13 January to 3 May 2012. This is not to say that the photographs established to any scientific certainty the precise depth or area of the 2012 works, rather the photographs conveniently illustrate the size and nature of these works, which, on any reasonable view, was not inconsiderable.

110. The 2012 works involved additional cut in the area to the east and south-east of the house on Lot 11, which had the effect of extending the level area so that the toe of the batter was aligned with what had been proposed as the new boundary of Lot 11 under the subdivision which was approved by the council.

111. The 2012 works did not conform to the specifications or descriptions of the proposed interim works in Part 4 of the Rein Warry report. In particular, by the middle of 2012:

(a)   the excavation area was not covered with rock free topsoil. In fact the whole area had no topsoil on it (sub-paragraph (c) of Part 4);

(b)   the worksite had not been planted with improved pastures (sub-paragraph (e) of Part 4);

(c)   the excavated area on the properties adjoining Lot 11 had not been covered with rock free topsoil and planted with improved pastures (sub-paragraph (f) of Part 4);

(d)   the main stumps of the trees which had been knocked over remained on the site (sub-paragraph (g) of Part 4); and

(e)   a table drain had not been constructed in accordance with the specifications provided for in Part 4 of the report, despite the report indicating that it would be constructed as an urgent interim measure (sub-paragraph (b) of Part 4).

112. In summary, by the middle of 2012, the 2012 works had fulfilled the objective of extending the levelled area out to the newly adjusted boundary in order to accommodate the construction of the proposed house extension, rather than the objectives stated in Part 4 of the Rein Warry report.

113. Furthermore, the Rein Warry report had proposed that a small additional amount of fill would be placed on the fill stockpile to a maximum depth of 660mm. This proposed additional fill height was exceeded by approximately 1.5-1.6m, at an approximate average of 1m, broadly across the fill area, which was, at the very least, contrary to the objectives set out in the Rein Warry report.

114. The following additional matters must also be taken into account:

1. the Rein Warry report specified that the measures stipulated therein were to be “completed without further delay”. No other timeframe was specified in the Rein Warry report or stipulated by the Council for the completion of the measures;

2. subsequent to the council’s letter of 5 December 2011, the earliest date that Mr O’Shanassy could get Mr Woodward to commence the works was 9 January 2012. This was due to inclement weather during December and January 2012;

3. on 7 June 2012 the table drain was replaced with a permanent hydraulic line, consisting of a 100ml pipe, to drain water back to Range Road;

4. in November 2012 the excavation area was covered with rock free topsoil as required in sub-paragraph (c) of Part 4 of the Rein Warry report;

5. in September or October 2012, the excavated area on the adjoining properties (Lot 12 and Lot 4) was covered with rock free topsoil and planted with improved pastures as contemplated by sub-paragraph (f) of Part 4 of the Rein Warry report;

6. during the period May to October 2012, the main stumps of the trees which had been knocked over were removed from the site, as contemplated by sub-paragraph (g) of Part 4 of the Rein Warry report. Commencing around November 2012, the remains and residual root balls were relocated to Lot 11 where they were neither visible from Range Road nor from Lots 12, 4, or 1; and

7. the works identified in the Rein Warry report were completed by December 2012.

115. Furthermore, although there was clearly a variance between the extent of the excavation proposed in the Rein Warry report in 2011 and the excavation actually carried out by Mr O’Shanassy, a comparison between the plans initially drawn up by Mr Warry and those submitted to the council demonstrate, in my view, especially when regard is had to the location of the vehicle ramp, that the difference is not as great as initially perceived, and moreover, that it is not possible to identify with absolute precision the spot levels proposed to achieve the draft interim batter, and therefore, the exact extent to which the final batter differed from it. Nonetheless, the unequivocal oral evidence of Mr Warry was to the effect that the changes between the draft and final plans requested by Mr O’Shanassy were inconsistent with the objectives of his report. And, it is beyond doubt that these changes were advanced by Mr O’Shanassy to further his own interests in order to complete the excavation as envisaged for the purpose of the intended extensions to his house.

116. Moreover, the Rein Warry report discloses that in addition to remediation character of the works:

1. the possibility the house would, subject to a separate development approval being obtained, be extended;

2. there might be a separate development application lodged for the earthworks; and

3. there would also be a financial benefit to Mr O’Shanassy in carrying out the works.

The Purpose of the Unlawful Development

117. Mr O’Shanassy caused the earthworks to be carried out for the purpose of enabling or facilitating the proposed extensions to the house on Lot 11 shown in the Allman Johnston drawings.

118. He was also motivated by a desire to increase the value of his property and to improve its amenity by opening up panoramic views both from the existing house and from the parts of the house which were proposed to be added by way of the proposed Allman Johnston extensions.

119. Mr O’Shanassy told Mr Symonds that he wanted to put an extension on the back of his house with a room with large windows and when the hill was removed, he “could see the lights of Sydney” and that this would increase the value of his house by $1.5 million.

The Effect of the Unlawful Development on Lot 11

120. By removing most of the ridgeline, there is no doubt that the earthworks and associated tree and vegetation removal fundamentally altered the landform by replacing the vegetated ridgeline with a levelled area denuded of the mature eucalyptus trees, and by creating a very large mound of fill over a broad area on Lot 12.

121. The removal of the ridgeline and the vegetation made the house on Lot 11 more visually prominent than it had been when the ridgeline and the trees were present, thus undermining the reason for the imposition of condition 14 in the 2001 development consent, namely, that the roof remain below the ridgeline.

122. The removal of the trees also undermined the express requirement contained in the approved plans for the erection of the dwelling, viz, that the existing mature eucalypts be retained.

123. The works benefited Mr O’Shanassy by preserving and increasing the views from his house and by facilitating major proposed alterations and additions to the existing dwelling by creating a landform on which the proposed extensions could be assessed and built with the ridgeline no longer presenting any impediment to their approval or construction. This was intended to significantly increase the value of his property.

The Effects of the Unlawful Development on Lot 4

124. In addition to the loss of amenity caused by the removal of the trees and vegetation discussed above (and elaborated upon further below), the council additionally argued, based, in part, on evidence given by Mr Lorincz, that the unlawful development had a deleterious effect on the occupants of Lot 4 (Mr Lorincz’s property), because the carrying out of the earthworks changed the direction of stormwater flow. Whereas the flow over much of that area had previously been towards the west, the works caused the flow to be directed to the north and east towards Lot 4. The works also left a large area with disturbed earth over its surface. In combination, these factors caused the occupants of Lot 4 to suffer a nuisance in the form of the flow onto their property and driveway, and under their house, of sediment-laden water from the site of the earthworks during and following rain events.

125. Furthermore, when a bund or levy was constructed at the edge of the excavated area at the direction of the council in October 2011, for the purpose of preventing further flow of stormwater through the disturbed areas down onto Lot 4, Mr O’Shanassy caused the bund to be breached in three locations, thereby opening paths for stormwater to once again flow onto Mr Lorincz’s property.

126. And that despite the fact that the interim works proposed in Part 4 of the Rein Warry report included, as an urgent interim measure, the construction of a table drain so that all of the run-off from the batters on site would drain in a westerly direction, away from Lot 4, this was not undertaken. In fact, the proposed table drain had still not been constructed by mid-2012, and therefore, Mr Lorincz experienced several adverse weather events during which, he claimed, sediment laden water from the areas disturbed by the earthworks flooded his property.

127. That the 2011 and 2012 works had a deleterious impact on Mr Lorincz’s property was vigorously denied by Mr O’Shanassy primarily for the following reasons:

1. there was no geotechnical evidence to support the assertion beyond reasonable doubt that the works had an adverse impact on the occupants of Lot 4 by changing the direction of stormwater run-off;

2. the breaches of the bund had been approved by the council. In particular, on 7 October 2011, Mr Webb requested that Mr O’Shanassy install an embankment around the 2011 works and put in a number of silt cloth outlets to filter the water, causing it to flow towards Lot 4 (“the sediment erosion embankment”). Then in April 2012, Mr Mitchell asked Mr O’Shanassy to remove the silt cloth outlets from the sediment erosion embankment, which he did; and

3. as at 9 March 2012 a table drain had been constructed around the 2012 work site for the purpose of draining run-off in a westerly direction towards the front paddock of Lot 11, in the direction of Range Rd, as specified in Part 4 of the Rein Warry report. Mr O’Shanassy relied on an aerial photograph taken on 9 March 2012, to demonstrate the construction of the table drain.

128. Mr Lorincz’s evidence was superficially persuasive. Before the Court were photographs taken by Mr Lorincz on 8 October 2011 of trails of sediment-laden water that had created long mounds of dirt on his property. He attested to the fact that on 25 November 2011, his house was flooded after heavy rain. The floodwater was deep red in colour and contained clay sediment. He observed that the excavated area where the ridgeline was formerly located was likewise made up of red soil or clay. Further flooding of his house occurred on 17 and 29 February and 16 March 2012. On 17 February, red clay silt was deposited over landscaped areas around his house as well as in the sub-floor and basement areas of his house. On 29 February, the house flooded again despite efforts to divert stormwater including the placement of sandbags, straw bales and the digging drainage ditches. Mr Lorincz also observed cracks to the brickwork of the house.

129. Furthermore, Mr O’Shanassy conceded in cross-examination that there was likely to be a link between the earthworks and the runoff of sediment-laden stormwater into Mr Lorincz’s property (T986.18-986.21).

130. Were these civil proceedings, an appropriate causal nexus may have been able to be made between the 2011 and 2012 works and the flooding caused to Mr Lorincz’s property. However, in the absence of expert geotechnical or other hydrological evidence modelling the change in water flow both before and after the earthworks, it is impossible to be confident that the unlawful development caused the flooding complained of an Lot 4. The evidence of Mr Lorincz is of itself, insufficient, in my opinion, especially in light of the manifest hostility existing between both himself and Mr O’Shanassy to demonstrate this beyond reasonable doubt.

131. Having regard to email correspondence passing between Mr O’Shanassy and Mr Webb dated 7 October 2011, it appears that Mr O’Shanassy had permission from the council to both implement a “low flow bank with silt cloth outlets”, or ‘silt fencing’, and to later modify it. But approval to implement and then modify sediment control measures in the manner described does not amount to permission to breach the levy that had been constructed to prevent water flowing to the east towards Lot 4.

132. Nevertheless, the council was unable to prove beyond reasonable doubt that Mr O’Shanassy had broken the bund on three occasions, let alone intentionally so, causing the ingress of stormwater onto Lot 4. Again, the only cogent evidence for this assertion came from Mr Lorincz during cross-examination by Mr O’Shanassy, where Mr Lorincz said (at T194.17-23):

Sediment control measures are to minimise the amount of silt, but the whole point is that the interim measures were for the water to travel west. You were directing water here to the east through this, by cutting a break in the levy, which was direct, in direct contravention of the, of the interim measures, which was to direct waters to the west, and the reason that we were being constantly flooded was because you broke through the levy in three places to direct water onto our house, and I believe that that was intentional.

133. Again, this evidence is, alone insufficient. It amounts to no more than an opinion expressed by an unqualified witness.

134. I am, however, satisfied that the council has proven to the requisite degree, based on the oral evidence of Mr Warry, that the table drain he advised in Part 4 of his report should be constructed on Lot 11 as an urgent interim measure, had not been finalised as at mid-2012 (T907.42-908.1). The photograph Mr O’Shanassy relied upon to demonstrate that a shallow drain had been constructed at the toe of the batter running in a southerly direction at the eastern and southern sides of the house on Lot 11 by 9 March 2012, was equivocal and did not, even on the balance of probabilities, show “that all run-off from the [site] drain[ed] in a westerly direction to the front paddock of the property (towards Range Road)” and away from Mr Lorincz’s property. Having said this, this does not, to reiterate, prove beyond reasonable doubt that the unlawful development caused the flooding of Mr Lorincz’s property.

135. There is no doubt, having regard to the photographs (the Allman photographs, Ms Lake’s photographs, and the council file photographs) before the Court depicting the ridgeline prior to the unlawful development the subject of the charge, that the trees adorning it were a noticeable feature of the hillside. Photographs of the ridgeline before the removal of the trees demonstrated their substantial height and prominence. However, to reiterate, given that Mr Lorincz’s occupation of Lot 4 post-dated the removal of the vegetation, it is not possible, at least to a criminal standard, to determine what specific impact its removal had on his amenity.

136. Nevertheless, I am prepared to accept that, at a general level, the amenity of the area would have been adversely affected by the destruction of the trees and the removal of the vegetation. So much so was acknowledged by Mr O’Shanassy’s under cross-examination (T989.34-989.38).

Evidence of the Council

137. In addition to numerous exhibits, during the totality of the hearing the council variously relied on the material contained in 11 affidavits, namely:

(a)   two affidavits of Mr Lorincz, dated 11 September 2012 and 13 September 2013;

(b)   two affidavits of Mr Shannon Webb, dated 8 November 2012 and 25 September 2013;

(c)   three affidavits of Mr Symonds dated 30 August 2012, 21 March and 4 September 2013;

(d)   two affidavits of Mr Allman dated 15 April and 1 May 2014;

(e)    an affidavit of Mr Beau Woodward dated 11 September 2012; and

(f)   an affidavit of Mr Ian Pearse dated 11 April 2014.

138. This evidence has, where relevant to these sentencing proceedings, been incorporated into the facts as found above.

Mr O’Shanassy’s Evidence

139. Similarly, in addition to separately tendered material, Mr O’Shanassy read three affidavits in the proceedings, sworn by him on 21 March, 14 April and 4 August 2014.

140. Most relevantly, in his affidavit sworn 4 August 2014, Mr O’Shanassy deposed to the fact that:

(a)   since 1999 he has held a practising certificate with the New South Wales Law Society. His current practising certificate is unrestricted and he has never been found liable of professional misconduct during this time;

(b) he regretted having carried out the 2011 works and apologised for having undertaken them without development consent. He acknowledged that the carrying out of development absent consent undermines the EPAA;

(c)   he acknowledged that part of the purpose for carrying out the 2011 works was to “give consideration to the proposed extension” to his house;

(d)   he initially believed he had permission to carry out the 2012 works but that he now realised that this belief was not correct “as a matter of law”, because the works required consent;

(e)   he voluntarily suspended the earthworks being carried out on Lots 11 and 12 in October 2011, and thereafter undertook a number of steps that he believed would mitigate the environmental impacts of the unlawful development;

(f)   he carried out reparation works in accordance with instructions from the council and pursuant to Parts 4 and 5 of the Rein Warry report, thereby incurring approximately $84,000 in construction costs;

(g)   the considerable adverse publicity surrounding the proceedings had had an effect on him;

(h)   he had suffered financial loss as a result of the commission of the offence because his house was required to be sold by the mortgagee in possession for considerably less than it had been valued at between 2004 and 2011;

(i)   the proceedings had taken a personal toll on his dealings with his estranged wife Ms Lake;

(j)   other than a low range PCA in 1991, he had no previous convictions and no convictions whatsoever for any environmental offences; and

(k)   he has no intention of undertaking any future earthworks without first obtaining advice and approval, and in light of his current financial circumstances it is unlikely that he will ever be in a position again to undertake large-scale development works, including earthworks, again.

141. Mr O’Shanassy was cross-examined. During his questioning he gave the following evidence:

1. he accepted that during the earthworks, for which he was responsible, there was more sediment that flowed down the hill towards Lot 4 (T981.38), and moreover, that the works he carried out prior to February 2012 were likely to have contributed to the presence of sediment laden water in the subfloor areas of Mr Lorincz’s house, as illustrated in several photographs taken by Mr Lorincz (T986.17);

2. he had not apologised to Mr Lorincz (T987.13);

3. that he regretted cutting down the trees (T988.04);

4. that one of the purposes of cutting down the trees was to enhance the views from his property (T989.48), however, the primary purpose was to reinstate a boundary fence following a boundary readjustment (T990.09);

5. that he regretted carrying out the 2012 works (T990.47) but that his “regret stems from the fact that he wasn’t there to carefully monitor or closely monitor it [the works carried out by the contractor Mr Woodward], and if I had been then carrying out the works in accordance with the Rein Warry report would have been more precise” (T994.01);

6. he was present during the excavations works carried out in 2012 by Mr White (T994.17);

7. he did not accept that in undertaking the 2012 works, he had caused a lot more fill to be placed on Lot 12 than was suggested should be deposited by Mr Warry and as he proposed to the council would be deposited as part of the interim works to rectify the 2011 works. He had not calculated the amount of fill placed on Lot 12 and therefore could not say whether it was more than agreed to by the council. Mr O’Shanassy had merely instructed the contractors to carry out the works in accordance with the plans drawn up by Mr Warry (T991.28);

8. while many of the interim measures itemised by the Rein Warry report were not carried out by the date specified, they had all been completed by December 2012 (T992.01); and

9. that he was aware that because of the fill deposited on Lot 12, the Networks Geotechnical report dated October 2013 concluded that there was a low risk of major slope failure on Lot 12, and that he would be “making good” any costs incurred by the Ulianas in carrying out recommendations by council engineers to remediate the problem (T996.33-997.31).

142. Mr O’Shanassy also relied on an affidavit from Mr Warry dated 3 April 2014, attaching the Rein Warry report (dated 3 November 2011), and Mr Warry’s expert report dated 2 April 2014.         

Applicable Sentencing Principles

143. The sentence imposed by the Court must reflect, and be proportionate to, both the objective elements of the offence and the subjective factors relating to Mr O’Shanassy and his conduct (Environment Protection Authority v Orica Australia Pty Ltd (the Nitric Acid Air Lift Incident) [2014] NSWLEC 103; (2014) 206 LGERA 239 at [80]; Director-General, Department of Environment and Climate Change v Walker Corporation Pty Limited (No 4) [2011] NSWLEC 119 at [21]; Veen v The Queen [1979] HCA 7; (1979) 143 CLR 458 at 490 and Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465 at 472).

144. The instinctive synthesis method is the appropriate approach to sentencing. That is, a weighing up of all of the relevant factors of the offence which act to aggravate and mitigate the sentence imposed (Orica at [81]; Muldrock v R [2011] HCA 39; (2011) 244 CLR 120 at [26] and Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 at [35]-[39], [50]-[84] and [136]-[139]).

145. Section 21A of the CSPA lists relevant subjective factors that may be taken into account on sentencing, including aggravating factors at s 21A(2) and mitigating factors at s 21A(3). Factors potentially applicable to these proceedings include ss 21A(2)(g) and (o) and 21A(3)(e), (f), (g), (h), (i) and (k).

146. In sentencing proceedings, a Court may not take into account any factor that is adverse to the defendant unless it have been proven beyond reasonable doubt. By contrast, factors in the defendant’s favour may be taken into account if they can be proven on the balance of probabilities (R v Storey [1998] 1 VR 359; (1996) 89 A Crim R 519 at 369; R v Olbrich [1999] HCA 54; (1999) 199 CLR 270 at [27]; Gore v The Queen; Hunter v The Queen [2010] NSWCCA; (2010) 208 A Crim R 353 at [27] and [105]).

147. When assessing the objective gravity of an offence, the Court establishes the upper limit of the appropriate penalty, but also the lower limit beneath which the penalty should not go. Mitigating factors should not produce a sentence that fails to reflect the gravity of the offending incident or the objectives of punishment, which include both retribution and deterrence (Orica at [87], Environment Protection Authority v Moolarben Coal Operations Pty Ltd [2012] NSWLEC 65 at [44] and Environment Protection Authority v Waste Recycling and Processing Corporation [2006] NSWLEC 419; (2006) 148 LGERA 299 at [140]).

148. Importantly, the sentence imposed must also deter both the specific offender and the general community from committing similar environmental offences (Director-General of the Department of Environment and Climate Change v Rae [2009] NSWLEC 137; (2009) 168 LGERA 12 at [9] and Bentley v BGP Properties Pty Ltd [2006] NSWLEC 34; (2006) 145 LGERA 234 at [139]-[141] and [153]-[155]).

Objective Circumstances of the Offence

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

Nature of the Offence

150. A fundamental consideration of relevance to environmental offences is the degree to which, having regard to the maximum penalties provided by the legislation in question, the defendant’s actions would offend against the legislative objects expressed in the statutory offence (Orica at [94] and Director-General of the Department of Environment and Climate Change v Rae [2009] NSWLEC 137 at [15]).

151. The relevant objects of the EPAA are (s 5):

(a)   to encourage:

(i)   the proper management, development and conservation of natural and artificial resources, including agricultural land, natural areas, forests, minerals, water, cities, towns and villages for the purpose of promoting the social and economic welfare of the community and a better environment,

(ii)   the promotion and co-ordination of the orderly and economic use and development of land,

...

(vi)    the protection of the environment, including the protection and conservation of native animals and plants, including threatened species, populations and ecological communities, and their habitats, and

(vii)   ecologically sustainable development, and

…

(b)   to provide increased opportunity for public involvement and participation in environmental planning and assessment.

152. The nature of the offence of carrying out development without consent contrary to s 76A(1)(a) of the EPAA was articulated by Preston J in Secretary, Department of Planning and Environment v Boggabri Coal Pty Limited [2014] NSWLEC 154 at [17]–[19]:

17    One of the principal means by which these objects are achieved is by the Act controlling the carrying out of development depending on its likely impact on the environment. Environmental planning instruments specify the purposes for which development may be carried out without development consent or only with development consent and for which development is prohibited. A person wishing to carry out development that may be carried out only with development consent must lodge a development application with the relevant consent authority for development consent to carry out that development. Depending on the type of development, the development application will need to include information or be accompanied by documents that assess the impacts, including environmental impacts, of the development and the means to mitigate these impacts. Again, depending on the type of development, there are differing procedures for public notification and public participation, including making submissions objecting to the development in the development application. There may need to be consultation with other regulatory authorities. The consent authority, in determining the development application, is required to consider a range of matters, including the impacts of the proposed development on the environment, and to impose relevant and appropriate conditions of consent. Again, depending on the type of development, there are different rights of appeal against a decision of a consent authority to refuse or to approve development consent.

18    There is a need for the upholding of the integrity of the system of planning and development control. The system depends on persons taking steps to obey the law by ascertaining when development consent is required, obtaining development consent when required, and carrying out development in accordance with any development consent obtained: Gittany Constructions Pty Ltd v Sutherland Shire Council [2006] NSWLEC 242; (2006) 145 LGERA 189 at [104], [105] and Director-General,Department of Environment and Climate Change v Rae [2009] NSWLEC 137; (2009) 168 LGERA 121 at [18].

19    Offences that undermine the integrity of the regulatory scheme are objectively serious. Use of the criminal law ensures the credibility of the regulatory scheme.

153. Mr O’Shanassy’s failure to apply for development consent to undertake the earthworks prevented the council from assessing the likely impacts of the earthworks and vegetation removal, and denied it the opportunity to refuse or grant approval based on those assessments. Similarly, the community, and Mr O’Shanassy’s neighbours, particularly Mr Lorincz, were denied the opportunity to object to the development.

154. Moreover, the carrying out of the works in a manner which circumvented the public participation process had the consequence that the council, instead of prospectively assessing the works, was compelled to issue the s 121 notice to Mr O’Shanassy for the purpose of remediating the land.

155. On any view, the commission of the offence materially compromised the integrity, and eroded the efficacy, of the regulatory planning system in its application to the land. In addition, it was inconsistent with the proper management and conservation of natural areas, the orderly use and development of the land, the protection of the environment, and the provision of opportunity for public involvement and participation in the planning regime.

156. The nature of the offence is perhaps best encapsulated by the specific notation to the s 149 certificate attached to the contract of sale for Mr O’Shanassy’s property, Ballingarry:

Landfill

Earthworks have taken place on the lot in the absence of development consent having been obtained. The earthworks include fill more than 3m in depth. The fill is known to contain soil, rock, concrete, plastics and other building material. As at 8 November 2013, the Council has not taken action or resolved to take action to require the removal, re-shaping or compaction of some or all of the fill. It remains open to the Council to take such action or make such a resolution in the future.

203. For these reasons, I find it impossible to conclude that Mr O’Shanassy will not reoffend in the future. I accept, however, that the likelihood, given the emotional and financial trauma these proceedings have caused Mr O’Shanassy, is not high.

Contrition and Remorse

210. In Waste Recycling and Processing Corporation Preston J opined that remorse is better demonstrated through “the offender taking actions” rather than “offering smooth apologies” (at [203]). Relevantly for present purposes, his Honour stated that the genuineness of any contrition and remorse was better shown by:

1. the speed and efficiency of any actions taken to rectify harm caused (at [204]);

2. the voluntary reporting of the commission of the offence to relevant authorities (at [210]); and

3. the measures taken to address the causes of the commission of any offence to prevent its occurrence in the future (at [212]).

211. In my opinion, having regard to these factors and the evidence before the Court, the remorse expressed by Mr O’Shanassy in these proceedings cannot be given full weight. Again, it is necessary to differentiate the expressions of contrition proffered by Mr O’Shanassy in relation to the 2011 and the 2012 works.

212. Mr O’Shanassy said in both his oral and written evidence that he regretted undertaking the 2011 works and apologised for having undertaken them without development consent.

213. The council submitted that this sentiment could not be accepted in light of Mr O’Shanassy’s initial denial of any liability for the unlawful works, particularly his adherence to the contention that the excavation of the hillside had occurred incrementally prior to the charge period.

214. There is no doubt that Mr O’Shanassy’s initial account of the pre-charge excavation period, which included his cross-examination of Ms Lake, was untruthful. Nevertheless, the truth was ultimately disclosed by Mr O’Shanassy and in relation to the 2011 works, with one exception, I accept this very late change of position by him as sincere. Damascene changes of heart, even if arrived at the gates of the city, can nonetheless be genuine. Mr O’Shanassy’s written and oral expressions of remorse were, in my view, more than complimented by his changed plea and the detailed agreed statement of facts willingly put before the Court by him that contained a number of damning admissions.

215. The exception is the removal of the vegetation, which, until the penultimate day of the trial, Mr O’Shanassy continued to assert was lawful under the Native Vegetation Act, but because he could not discharge his onus of proof, he did not press his submissions on this issue. I cannot, in these circumstances, find that he was remorseful in relation to this part of his offending.

216. Further, I cannot accept O’Shanassy’s anaemic expression of regret in respect of the 2012 works. For example, under cross-examination, Mr O‘Shanassy said the following (T990.46-990.50):

Q.    Do you or don't you regret carrying out the 2012 works?

A.    Well, obviously I do in the context of these proceedings, and I mean that in the context that if, if I was wrong at law as I had no legal basis upon which to do it, then yes, I do regret it, but I was of the mistaken belief that I had Wingecarribee Shire Council's approval.

217. He also had difficulty expressing regret in relation to the people more directly affected by the unlawful development, namely, Mr Lorincz. During the sentencing proceedings, the following exchange occurred (T987.8–987.38):

A.    I’ve made an apology by my affidavit to the Court and to the public at large.

Q.     But not to Mr or Mrs Lorincz?

A.    No.

Q.    You haven’t offered to make any reparations to Mr or Mrs Lorincz, have you, for the deleterious effect caused by your earthworks in terms of the sediment load and runoff that flowed onto their property in the period from November 2011.

A.    I’m unaware, apart from the comments that have arisen during these proceedings ‑ I am unaware as to what precisely is the quantum of what might be the damage that he alleges has been suffered.

Q.    So is this the position, that in order to protect your own commercial interests in respect of a possible dispute with Mr Lorincz you considered it prudent not to offer any reparation at all for having caused a situation where sediment‑laden runoff flowed from your property down to his?

A.    No, not at all. If there is a valid claim I have no doubt that Mr Lorincz has made it clear that he is going to prosecute those that are responsible, so I expect that that will happen.

Q.    Do you feel that you should or should not have offered an apology to Mr and Mrs Lorincz for what you did?

A.    Now, or back then?

HER HONOUR

Q.    Any time.

A.    No.

218. His unwillingness to express full remorse was reflected in his written submissions, in which he sought to make a distinction between the remorse he felt “for the commission of the offence” and “remorse arising from the consequences of the actions that led to the prosecution for the offence”. In his submissions, Mr O’Shanassy explained that he was “remorseful in the second sense for the whole of his actions” but that his “remorse in the first sense [was] more complicated”. This was no more so than in relation to the 2012 works.

219. The extreme reticence of Mr O’Shanassy to acknowledge that he had broken the law and that in doing so he had caused harm to the council, to the community and to his neighbours derogates from his attempt to offer a ‘smooth apology’ in relation to the 2012 works. I do not in any way accept his expression of contrition in respect of the 2012 works.

220. In summary, for the reasons above, I do not place full weight on Mr O’Shanassy’s expression of remorse.

Late Guilty Plea

221. A plea of guilty entered by a defendant at the earliest possible opportunity can attract a maximum discount of 25% on the penalty imposed as a reflection of the utilitarian value of the pleas to the criminal justice system (ss 21A(3)(k) and 22 of the CSPA and R v Thomson; R v Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383 at [160]).

222. Given the very late change of plea by Mr O’Shanassy - after the completion of twelve court hearing days, after the council had filed and served written submissions on the question of liability, and in circumstances where five interlocutory judgments were delivered during the course of the proceedings, including the handing down of reasons rejecting a ‘no case to answer’ application – the utilitarian value of the delayed guilty plea was extremely limited but not wholly. Nevertheless it was not non-existent and some advantages to the criminal justice system were yielded insofar as Mr O’Shanassy’s criminal liability was no longer required to be determined and a sentence hearing could be conducted instead (Harrison v Perdikaris [2015] NSWLEC 99 at [98]-[100]).

223. Having regard to all these circumstances, in my opinion, a discount of 10% is warranted.

Assistance to Authorities

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

Agreement to Pay the Council’s Costs

225. 83 The Court is empowered to order an offender to pay the prosecutor's legal costs of the proceedings pursuant to ss 257B and 257G of the CPA.

226. 84    The payment of a prosecutor's costs is viewed as an aspect of punishment and should be considered in the determination of the appropriate penalty as a factor that acts to reduce the penalty (Environment Protection Authority v Barnes [2006] NSWCCA 246 at [78] and [88]; Environment Protection Authority v Queanbeyan City Council (No 3) [2012] NSWLEC 220; (2012) 225 A Crim R 113 at [248] and Rae at [68]).

227. Mr O’Shanassy has not agreed to pay the council’s costs. Nevertheless, he acknowledged that it was likely that he would be ordered to pay these costs, which the council estimated to be approximately $300,000. The Court takes this into account.

Payment of Remediation Costs

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

Extra-Curial Punishment

229. The Court may take into account extra-curial punishment suffered as a result of the commission of an offence (Regina v Daetz; Regina v Wilson [2003] NSWCCA 216; (2003) 139 A Crim R 398 at [62]-[63]; Alameddine v The Queen [2006] NSWCCA 317 at [25]-[27]; Cessnock City Council v Quintaz [2010] NSWLEC 3; (2010) 172 LGERA 52 at [115] and Director-General, Department of Environment v Climate Change v Hudson [2015] NSWLEC 110 at [189]-[194]).

230. Negative publicity was considered to be a factor in mitigation in Garrett On Behalf of the Director-General of the Department of Conservation and Environment v House [2006] NSWLEC 492. In that decision, Pain J took into account (together with other factors) negative publicity in affording a defendant a substantial discount in respect of the fine that she intended to impose (at [60]). Her Honour accepted that the publicity had negatively affected his business and personal life.

231. The Court takes into account the public embarrassment and adverse publicity that Mr O’Shanassy has suffered as a result of his unlawful conduct.

Conclusion on Subjective Considerations

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

The Appropriate Sentence to be Imposed on Mr O’Shanassy

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

Deterrence, Denunciation and Retribution

234. There is, in my opinion, a role in this case for both specific and general deterrence.

235. Generally, any penalty imposed must be sufficient to specifically deter the offender from repeating the conduct that resulted in the commission of the offence in the future in the hope that only nominal penalties will be applied.

236. There is also a need for the sentence to have embedded in it an element of general deterrence to promote the objects of the EPAA and to ensure that others engaged in development do not carry out unapproved works (Plath vHunter Valley Property Management Pty Ltd [2010] NSWLEC 264 at [34]; Pittwater Council vScahill [2009] NSWLEC 12; (2009) 165 LGERA 289 at [109]; Snowy Hydro at [206] and Axer at 367). The penalty imposed should be sufficient to cause others to take the requisite positive steps to avoid offending, rather than treating the risk of a fine as a cost of completing the development.

237. In Scahill, Preston J appositely stated (at [46]):

There is a need for the upholding of the integrity of the system of planning and development control. This system depends on persons taking steps to obey the law by ascertaining when development consent is required and then obtaining development consent before carrying out development: Byron Shire Council v Fletcher [2005] NSWLEC 706; (2005) 143 LGERA 155 at [60]-[61]; Cameron v Eurobodalla Shire Council [2006] NSWLEC 47; (2006) 146 LGERA 349 at [72]-[80]; Byers v Leichhardt Municipal Council [2006] NSWLEC 82 at [83], [85]; Gittany Constructions Pty Ltd v Sutherland Shire Council at [104]; and Garrett v Freeman(No 5) (2009) 164 LGERA 287 at [58]. Development must be carried out in accordance with the terms of the development consent obtained: Gittany Constructions Pty Ltd v Sutherland Shire Council at [105].

238. Mr O’Shanassy submitted that any penalty imposed did not need to act as a specific deterrent. This was because of the “devastating” financial consequences his offending had had on him which included the potential loss of over $2 million resulting from the forced sale of Ballingarry, the expenditure of over $84,000 in remediation works, and the likely payment of approximately $300,000 by way of the council’s legal costs. These losses, together with the fact that the property has now been sold, made it highly unlikely that he would be engaging in any further development.

239. In response, the council submitted that the nature and circumstances of the commission of this offence properly invoked the need for specific deterrence because of Mr O’Shanassy’s:

1. denial of liability for the commission of the offence until up to the close of evidence at the trial;

2. refusal to accept responsibility for the unlawful removal of the vegetation;

3. his lack of any real contrition for the 2012 works; and

4. his refusal to apologise to Mr Lorincz.

240. These matters, the council submitted, demonstrated a lack of insight in respect of his offending, mandating the need for the sentence to serve as a personal deterrent. I agree.

241. Finally, the imposition of an appropriate penalty addresses the sentencing purposes of retribution and denunciation. The sentence of this Court is a public denunciation of the conduct of Mr O’Shanassy and must ensure that he is held accountable for his actions and is adequately punished (ss 3A(a) and (e) of the CSPA and Orica at [218] and Rae at [8]-[9]). I also take these elements of sentencing into account when deciding upon the appropriate penalty to be imposed on him.

Consistency in Sentencing

242. Another relevant consideration is the ascertainment of the existence of a general pattern of sentencing by the Court for offences such as the offences in question in these proceedings (Gittany at [179]–[182] and Rae at [69]).

243. The proper approach is for the Court to look at whether the sentence is within the range appropriate to the gravity of the particular offence having regard to the subjective circumstances of the particular offender, and not whether it is more severe or more lenient than some other sentence that forms part of that range (Gittany at [182] quoting R v Morgan (1993) 70 A Crim R 368 at 371).

244. Of course care must be taken because each case is different and a sentence imposed in one case does not demonstrate the limits of a sentencing judge’s discretion, given the wide divergence of facts and circumstances leading to the imposition of specific penalties (Axer at 365; CabonneShire Council v Environment Protection Authority [2001] NSWCCA 280; (2001) 115 LGERA 304 at 312 and Hili v The Queen; Jones v The Queen [2010] HCA 45; (2010) 242 CLR 520 at [54]).

245. The pattern of sentencing against which the present case falls to be determined is established through an examination of the recent sentencing cases dealing with breaches of ss 76A(1)(a) and 125 of the EPAA, or, appropriately, analogous offences.

246. Neither party was able to point to a factually similar case to assist the Court in determining a coherent pattern of sentencing for the unlawful earthworks. Given the scope and scale of the excavation in issue, this is, perhaps, unsurprising.

247. In Port Macquarie-Hastings Council v Notley (No 2) [2013] NSWLEC 220, a case involving the erection of a house and associated excavation by an individual without development consent in contravention of s 76A(1)(a) of the EPAA, the Court observed (at [106]):

106 The cases demonstrate that penalties imposed by the court for first time offences of this type by an individual typically range between $7,000 to $60,000 depending on the mix of objective and subjective circumstances (see, for example, Kiama v Furlong [2009] NSWLEC 139; Naumcevski; Abroon (No 3) and Burwood Council v Doueihi [2013] NSWLEC 196).

248. This observation does not, however, preclude the Court from penalising an individual more than $60,000 or less than $7,000. Consistency in sentencing must not be treated as a mathematical exercise. As was opined by the High Court of Australian in Hili (at [49]):

49    The consistency that is sought is consistency in the application of the relevant legal principles … When it is said that the search is for “reasonable consistency”, what is sought is the treatment of like cases alike, and different cases differently. Consistency of that kind is not capable of mathematical expression. It is not capable of expression in tabular form. …

249. Penalties that have been imposed for more recent breaches of s 76A(1)(a) of the EPAA occasioned by the carrying out of unauthorised excavation include (some of which the parties referred the Court to in their oral submissions) the following:

(a)   North Sydney Council v Perini (No 2) [2013] NSWLEC 91, in which the defendant, amongst other unlawful development, engaged in earthworks to install a pool. The work was undertaken deliberately but not for financial gain. The offence was characterised as one of low objective gravity. The defendant was of good character, had no prior convictions, pleaded guilty at the first available opportunity, and was not likely to reoffend. A fine of $28,000 was imposed after a discount of 30%;

(b)   Hurstville City Council v Naumcevski [2011] NSWLEC 226, a decision which involved a licensed building contractor who carried out excavation works without development consent on a third person’s land. The works included the demolishment of a dwelling and the removal of soil and rock from the rear of the house and the rear and side boundaries of the land, in circumstances where consent had been granted for the alterations and additions to the house only. The offence was committed recklessly but not for financial gain and many of the subjective factors were in the defendant’s favour. The defendant was fined $14,000 and ordered to pay costs of $37,500;

(c)   Cessnock City Council v Bimbadgen Estate Pty Ltd (No 2) [2011] NSWLEC 140, where the carrying out of earthworks and associated construction occurred on land in order to accommodate an increased number of patrons at concerts. The Court imposed a penalty of $20,000 and ordered the corporate defendant to pay costs of approximately $60,000–70,000, taking into account the fact that there was no physical environmental harm, that the offence was committed intentionally and for commercial reasons, and that the defendant had no prior convictions, had pleaded guilty at the earliest opportunity, was otherwise of good character, cooperated with the council and expressed genuine remorse;

(d)   Lane Cove Council v Wu [2011] NSWLEC 43, where the defendant who carried out development otherwise than in accordance with a building consent, which included excavation beyond that which was permitted by the relevant consent. The defendant was fined $22,500, taking into account the fact that the offence was committed in a manner that was more than reckless, but not intentional, the defendant had no prior criminal record, his professional standing had been damaged by the prosecution, he was unlikely to re-offend, he had co-operated with the council, he had expressed contrition and remorse, he did not have full control over the development, he pleaded guilty early and he agreed to pay the prosecutor’s substantial costs; and

(e)   in Fairfield City Council v Hanna [2007] NSWLEC 343, a fine of $28,000 was imposed where the defendant had excavated beyond the limits of the development consent leading to the creation of a whole floor beneath the building and the ground floor being elevated by 1.3m in excess of that permitted under the approved plans. The offence was committed deliberately, but the defendant had no prior convictions, was otherwise of good character, had mitigated the harm, had agreed to pay the council’s costs, and was found to be unlikely to re-offend. A 25% discount was applied for an early guilty plea.

250. For present purposes, the available range of penalties for offences of an analogous nature have also been usefully summarised in a number of other decisions of this Court (Council of the Municipality of Kiama v Furlong [2009] NSWLEC 139 at [35]–[41]; The Council of the Municipality of Kiama v Pacific Real Estate (Warilla) Pty Ltd [2009] NSWLEC 191 at [112]–[115]; Bimbadgen at [99]–[102]; Naumcevski at [89]–[91] and Ku-ring-gai Council v Abroon [2011] NSWLEC 1 at [146]–[151]). For the sake of brevity I do not repeat the details of these cases in full. Suffice it to say, that I have had regard to the analyses of comparable sentences referred to in those cases, and I have had regard to the circumstances of those decisions themselves, in determining Mr O’Shanassy’s penalty.

Conclusion on Appropriate Penalty

251. Synthesising the objective circumstances of the two offences as mitigated by the subjective circumstances of Mr O’Shanassy, and having regard to the existing pattern of sentencing, I consider that the appropriate penalty for the commission of the offence is a monetary penalty.

252. The appropriate penalty for the offence as charged is a fine of $110,000 discounted by 15%. This results in a total monetary penalty in the sum of $93,500

253. Having assessed the amount of the fine that would otherwise be appropriate for the commission of the offence, it is necessary to determine whether Mr O’Shanassy has the financial capacity to pay the fine (s 6 of the Fines Act).

254. In the absence of any material that would support a finding that a substantial fine could impose a hardship on Mr O’Shanassy, I am unable to adjust the amount of the fine that I have determined is otherwise appropriate. Although Mr O’Shanassy was forced to sell Ballingarry by the mortgagee in possession for substantially less than envisaged by him, it is not known what, if any, impact this has on his capacity to pay a substantial fine. I therefore decline to take it into account.

Orders

255. For the reasons given above, the formal orders of the Court are that:

1. the defendant is convicted of the offence as charged;

2. the defendant is fined the sum of $93,500;

3. pursuant to s 257B of the Criminal Procedure Act 1986, the defendant is to pay the prosecutor’s costs of the proceedings as agreed or as determined under s 257G of that Act; and

4. the exhibits are to be returned.

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Decision last updated: 21 August 2015