Wollongong City Council v Eldridge

[2017] NSWLEC 35

Land and Environment Court

New South Wales

Medium Neutral Citation:	Wollongong City Council v Eldridge [2017] NSWLEC 35
Hearing dates:	7, 8 and 9 November; 5 December 2016;20 March 2017
Date of orders:	29 March 2017
Decision date:	29 March 2017
Jurisdiction:	Class 5
Before:	Moore J
Decision:	In Matter No 151656 of 2016, the orders are at [214] In Matter No 151599 of 2016, the orders are at [215]
Catchwords:	SENTENCING – two charges of breaching conditions of development consent – removal of protected vegetation – construction activities in a watercourse – nature of the offences – capacity to pay a fine – evidence concerning personal financial circumstances – no basis to apply s 6 of the Fines Act 1996 – fines imposed – costs ordered
Legislation Cited:	Contaminated Land Management Act 1997 Crimes (Sentencing Procedure) Act 1999, ss 3, 21A and 22 Criminal Procedure Act 1986, ss 257B and 257G Environmental Planning and Assessment Act 1979, s 125 Fines Act 1996, s 6 Water Management Act 2000, s 91 Wollongong Local Environmental Plan 2009
Cases Cited:	Bankstown City Council v Hanna (2014) 205 LGERA 39; [2014] NSWLEC 152 Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 Council of the City of Sydney v Adams [2015] NSWLEC 206 EPA v Barnes [2006] NSWCCA 246 Leichhardt Council v Geitonia Pty Ltd (No 7) [2015] NSWLEC 79 Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309 Ryde Municipal Council v Royal Ryde Homes & Anor (1970) 19 LGRA 32
Category:	Principal judgment
Parties:	Wollongong City Council (Prosecutor) Robert Michael Eldridge (Defendant)
Representation:	Counsel: Mr T Howard SC/Mr A Isaacs, barrister (Prosecutor) Mr R Eldridge, Self-represented (Defendant)   Solicitors: Sparke Helmore (Prosecutor)
File Number(s):	151656 and 174842 of 2016
Publication restriction:	No

TABLE OF CONTENTS

Introduction

The site

The charges

The maximum penalty

Mr Eldridge’s “not guilty” plea

The pre-trial mention

The procedural discussion at the commencement of the trial

Mr Eldridge’s change of plea

No Statement of Agreed Facts

Mr Eldridge’s guilt

The development consent

The Prosecutor’s opening

Mr Sharp’s interview of Mr Eldridge

Mr Sharp's cross-examination by Mr Eldridge

Mr Eldridge’s evidence

Mr Eldridge's evidence-in-chief

The Prosecutor’s cross-examination of Mr Eldridge

The sequence of work on the site

Mr Eldridge's re-examination narrative

Comment on Mr Eldridge’s evidence

The earlier development consent

The documentary evidence

The Remediation Action Plan

The Statement of Environmental Effects

Mr Sharp’s interview of Mr Eldridge

The subdivision layout schematic

The present state of the site

The Ochre Landscape Architects Landscape Concept Plan

The Vegetation Management Plan

Charge 1

Identification of the Illawarra Subtropical Rainforest and the Cynanchum elegans

The critical activity sequence

Charge 2

The competing environmental interests

Preparation for the second stage of the hearing

Mr Eldridge’s 2 December 2016 affidavit

The sentencing framework

Aggravating factors

Mitigating factors

The extent of harm

Prior convictions

Good character

Likelihood of reoffending

Contrition and remorse

The process for sentencing

Deterrence

The utilitarian benefit of the pleas of guilty

Proportionality

General

Other potentially relevant cases

The utility of classifying an offence within a comparative range

Costs

Capacity to pay

The appropriate sentences

Discounts

Aggregation and totality

Orders

Judgment

Introduction

1. Mr Eldridge acted as the Project Manager for approved remediation of Lot 52 in DP 804360 at Jackson Avenue, Warrawong (the site) in anticipation of seeking approval of a later residential subdivision development application on behalf of a consortium of investors. Mr Eldridge was the applicant for the approval on behalf of the consortium. The remediation project was approved by Wollongong City Council (the Council) on 28 April 2014, subject to a range of development consent conditions and works commenced on site approximately two weeks’ later. Mr Eldridge performed his role as Project Manager for the remediation project between approximately 12 May and 28 July 2014, this being the date when a “stop work” notice, served by the Council, took effect.

2. The activities which had taken place on the site prior to the “stop work” order coming into effect had comprised extensive vegetation removal over virtually all of the site and remediation activities over a significant but certainly not (as will later be discussed) the entirety of the site. The reasons for, and process by which, the remediation activities being undertaken to address the effects of long-term use of the site for illegal dumping will also require more detailed discussion later.

The site

3. The site is a largely landlocked one of approximately 1.9 hectares in the Wollongong suburb of Warrawong. It has access from (presently) dead-end stump streets of Jackson Avenue (to its south-west) and Little Place (to its north-east). The site is generally elliptical in shape. It has, relevantly to the second of the charges laid by the Council against Mr Eldridge (as set out below), a watercourse which runs roughly east-west across the site, discharging through an open drainage line to the west, with that draining, some 100 metres or so beyond the site’s boundaries, into Lake Illawarra.

The charges

4. I have earlier noted that the Council had granted the remediation approval subject to a number of conditions of consent. Mr Eldridge faces two charges laid under s 125(1) of the Environmental Planning and Assessment Act 1979 (the EP&A Act) for failing to observe two elements of those conditions of consent.

5. The first of the charges relates to the clearing of the vegetation on the site and arises from the terms of condition 20 of the conditions of consent. This charge can be set out in the following terms:

Between about 28 April 2014 and 23 July 2014, at or near Jackson Avenue, Warrawong in the State of New South Wales, ROBERT MICHAEL ELDRIDGE committed an offence against section 125 of the Environmental Planning and Assessment Act 1979 (Act), in that he did the following thing which was forbidden to be done by section 76A(1)(b) of the Act:

He carried out development, being development that an environmental planning instrument provides may not be carried out except with development consent, otherwise than in accordance with a development consent that was in force at the time of the offence.

6. The relevant particular setting out the provision of the development consent said to be breached for this charge was in the following terms:

Condition of development consent not complied with:

On 28 April 2014 the Prosecutor granted development consent Council reference DA-2013/1373 to the Defendant to carry out the Development (Consent) subject to conditions of consent.

Condition 20 of the Consent provides:

20    Protection of Ecological Endangered Community

Consultation from a suitably qualified and experienced ecologist must be obtained to protect the area of Illawarra Subtropical Rainforest and locations of Cynanchum elegans on site during the course of site remediation work. Prior to undertaking remediation work, a copy of ecologist recommendations must be sent to Council’s Environment Section for endorsement.

7. The manner of contravention of the condition was particularised in the following terms:

The Defendant authorised contractors to carry out the Development on the Site without first providing to Council recommendations from a suitably qualified and experienced ecologist contrary to condition 20 of the Consent.

8. The second of the charges arises from the activities undertaken on the site, whilst under Mr Eldridge’s project management control, in the watercourse and on the land immediately on either side of the watercourse that runs through the site. This charge can be set out in the following terms:

Between about 28 April 2014 and 23 July 2014, at or near Jackson Avenue, Warrawong in the State of New South Wales, ROBERT MICHAEL ELDRIDGE committed an offence against section 125 of the Environmental Planning and Assessment Act 1979 (Act), in that he did the following thing which was forbidden to be done by section 76A(1)(b) of the Act:

He carried out development, being development that an environmental planning instrument provides may not be carried out except with development consent, otherwise than in accordance with a development consent that was in force at the time of the offence.

9. The relevant particular setting out the provisions of the development consent said to be breached was in the following terms:

On 28 April 2014 the Prosecutor granted development consent Council reference DA-2013/1373 to the Defendant to carry out the Development (Consent) subject to conditions of consent.

Conditions 5 and 6 of the Consent provide:

5   Compliance with General Terms of Approval

The General Terms of Approval issued by the NSW Department of Primary Industries Office of Water shall be complied with at all times.

6 Requirements of the NSW Department of Primary Industries Office of Water – Part 3 s.91 of the Water Management Act 2000

The submission of documentary evidence to Wollongong City Council, confirming that the required Part 3 Approval under the Water Management Act 2000 has been issued by the NSW Department of Primary Industries Office of Water, is required prior to the commencement of works.

(ii)    Condition 2 of the General Terms of Approval, a copy of which were attached to the Consent, provides:

Prior to the commencement of any controlled activity (works) on waterfront land, the consent holder must obtain a Controlled Activity Approval (CAA) under the Water Management Act from the NSW Office of Water. Waterfront land for the purposes of this DA is land and material in or within 40 metres of the top of the bank or shore of the river identified.

10. The relevant particular setting out the provisions of the development consent said to be breached was in the following terms:

(i) The Defendant authorised contractors to carry out the following activities without first obtaining a controlled activity approval under Part 3 of the Water Management Act 2000 from the NSW Department of Primary Industries Office of Water:

•   the construction of a temporary bridge over the watercourse running through the Site by depositing soil, rocks and a concrete pipe in the watercourse;

•   the removal of vegetation from land within 40 metres of the watercourse; and

•   the excavation of soil from within the watercourse and depositing that soil on the northern bank of the watercourse.

(ii)   The Defendant did not provide to Council documentary evidence that a controlled activity approval had been obtained prior to commencing works on the Site.

The maximum penalty

11. The maximum penalty at the time of the offences was $1,100,000. That penalty (for an individual) has subsequently been reduced. However, as Preston CJ explained in Council of the City of Sydney v Adams [2015] NSWLEC 206 at [29] to [31], the maximum penalty of $1,100,000 remains applicable.

Mr Eldridge’s “not guilty” plea

12. On 29 July 2016, when the matter was listed before Pepper J as the List Judge, Mr Eldridge entered a plea of “not guilty” to both charges and the matter was set down for trial on this basis for three days commencing on 7 November 2016.

The pre-trial mention

13. On 2 November 2016, a letter dated 31 October that had been forwarded by Mr Eldridge to the Registrar was referred to me for my consideration. Mr Eldridge's letter raised a number of matters he considered potentially related to his fitness, for physical medical reasons, to take part in the scheduled trial. It is unnecessary to recount any detail of the matters he foreshadowed might give rise to such a concern.

14. Under the circumstances, I considered it appropriate to provide a copy of Mr Eldridge's letter to the Council's legal representatives and to conduct a pre-trial mention of the matter. That pre-trial mention took place on the afternoon of 2 November 2016.

15. As Mr Eldridge did not subsequently press any application seeking to vacate the hearing dates, it is unnecessary to explore, further, the reasons why the pre-trial mention took place.

16. However, it is appropriate to note that, during the course of that mention, Mr Isaacs, junior counsel for the Council, raised with me and Mr Eldridge the question of which, if any, of the Council's proposed witnesses (the Council having filed and served affidavits from 10 persons proposed to give evidence on the basis of Mr Eldridge's “not guilty” plea) might be required for cross‑examination. Mr Eldridge indicated that only one of those witnesses, Mr Sharp, would be required for cross-examination.

The procedural discussion at the commencement of the trial

17. Because Mr Eldridge was self-represented and, on my preliminary examination of the Council's affidavit material (on the assumption that all material, other than Mr Sharp's affidavit and documents exhibited to it, at least, would go into evidence - unless there were objections to any of that material, Mr Eldridge not having foreshadowed any), I concluded that, at the commencement of the trial and before embarking on the Prosecutor’s opening, it would be appropriate to explain a number of matters to Mr Eldridge and, having done so, ask him whether he wished to reconsider the “not guilty” plea that he had entered before Pepper J.

18. Before doing so, I indicated to Mr Howard SC, senior counsel for the Council (the Prosecutor), the matters that I proposed to explain to Mr Eldridge. It is unnecessary to set these matters out at any great length, but it is appropriate to note that they included:

• the nature of the statutory offences with which he had been charged and, particularly, that matters of intention did not arise;

• the obligation imposed on me by s 22 of the of the Crimes (Sentencing Procedure) Act 1999 (the Sentencing Procedure Act) concerning the taking into account of a guilty plea (if one were now to be entered) and the range of penalty discount available as a consequence of R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309.

19. I also explained to Mr Eldridge the potential defence of necessity if he maintained his “not guilty” plea. I invited the Prosecutor to have a brief discussion with Mr Eldridge on that matter and to also explain to Mr Eldridge where, on the range between “least serious” and “most serious”, the Council regarded Mr Eldridge‘s conduct as falling with respect to each of the charges. I adjourned for a short period to enable this to occur.

20. After the adjournment, Mr Eldridge sought confirmation that he would still have the opportunity to question Mr Sharp (as he had foreshadowed at the pre-trial mention) and the Prosecutor indicated that he would facilitate that course being followed.

21. I also explained to Mr Eldridge:

• the difference between evidence and submissions; and

• that he would be permitted to enter the witness box and, after being sworn, would have the opportunity to provide his side of the story, confined to factual material, and to do so in narrative form but that, at the conclusion of that process, the Prosecutor would be entitled to cross-examine him.

22. I also explained to Mr Eldridge that, at the end of the trial, he would have the opportunity to make his final submissions to me before I reserved my decision to consider the outcome of the proceedings.

23. The Prosecutor confirmed that the Council proposed to submit that the breach, for each charge, should be regarded as “moderate”.

Mr Eldridge’s change of plea

24. Having considered all of the matters discussed above, Mr Eldridge sought leave to withdraw his “not guilty” plea and to substitute, in lieu, a plea of “guilty” to both charges. Without objection from the Prosecutor, I granted leave to enter a plea of “guilty” to each of the charges.

No Statement of Agreed Facts

25. As a consequence of the timing of Mr Eldridge’s plea of “guilty”, and the fact that he has been self-represented throughout, there has been no settled Statement of Agreed Facts tendered. This is not to be seen as a criticism of Mr Eldridge, it is merely noted as the reason why it is necessary to refer to the documentary material and other evidence at some length so it can be understood why I have accepted that Mr Eldridge’s “guilty” pleas have been properly made.

Mr Eldridge’s guilt

26. I have carefully read the affidavit material in the Prosecutor's case and examined the documents in Exhibits B, C and D. I have also had regard to the candid way that Mr Eldridge, in the course of his oral evidence-in-chief, explained the nature of the actions which he had been undertaking leading to the stripping of what he described as “the green waste on the site” before the commencement of the remediation activities undertaken (the reasons for and the nature of these activities being discussed in some detail later).

27. During the course of his oral evidence-in-chief, Mr Eldridge also candidly expressly admitted his guilt during the course of his narration. He also described the reasons why works were undertaken in the vicinity of the watercourse in a fashion giving rise to the second charge, being that derived from the failure to get a controlled activity permit for works within 40 metres on either side of the watercourse from the Office of Water as required by the Water Management Act 2000.

28. As a consequence, I am satisfied that the relevant factual elements necessary to provide the foundation for conviction on each of the charges have been made out by the Prosecutor.

The development consent

29. There are a number of matters relating to the development consent granted by the Council on 28 April 2014 that require to be noted in addition to the three conditions that are embodied in the charges against Mr Eldridge that have earlier been set out (those conditions being conditions 5, 6 and 20 of the development consent).

30. The first matter that is relevant is that the development consent is one which applies to the remediation of the land and is not one relating to any application for long-term use of the land as a residential subdivision development. It is clear, from the documents that are in evidence, that the proposed remediation was intended to be carried out in order to render the land fit for residential subdivision but that end was not sought in the development application that founded this development consent.

31. However, it will be necessary to return, later, to a concept subdivision plan that was tendered by the Prosecutor and which was appended to the Statement of Environmental Effects (the SEE) which accompanied the development application for remediation and was also appended to the Remediation Action Plan (the RAP) submitted with the development application.

32. Second, it is necessary to set out the terms of condition 1 of the conditions attaching to approval of the remediation, as this condition is the sole condition incorporating any other document, relevantly, as an operative element of the development consent. This condition expressly incorporates the RAP. This condition was in the following terms:

1.   The development shall be implemented substantially in accordance with the details and specifications set out in the Remediation Action Plan (RAP); Lot 52, Jackson Avenue, Warrawong, NSW, EP03-RP02-v1.0 dated 20 November 2013 prepared by MEtech Consulting Pty Ltd and any details on the application form except as amended by the conditions specified and imposed hereunder.

33. It will later be necessary to return, in some detail, to the terms of the RAP.

34. Finally, with respect to the terms of the conditions of the remediation development consent, it is appropriate to make a Hound of the Baskervilles observation. I have earlier adverted to the SEE which accompanied the development application. This document was not expressly incorporated in the terms of the development consent by reference to it in condition 1 (nor in any other condition) of the conditions attaching to the development consent.

33. As a consequence, although this document had been commissioned by Mr Eldridge from a Wollongong town planning consultancy, its lack of express incorporation (and the precision with which the RAP is referenced), means that there is no necessity to have regard to this document in interpreting the terms of the development consent itself (unlike the position in Ryde Municipal Council v Royal Ryde Homes & Anor (1970) 19 LGRA 32). It is, however, necessary to discuss this document, to some extent, to provide an understanding of the nature and context of Mr Eldridge’s conduct.

The Prosecutor’s opening

36. The Prosecutor read affidavits from the following:

• John Sharp (Council’s Development Project Officer Enforcement)

• Nathan Garvey (Biosis employee)

• Mathew Misdale (Biosis employee)

• Anthony Miskiewicz (Council’s Environmental Planning Manager)

• Brett Morrisey (Council’s Environmental Strategy Officer)

• Gaby Kirwood (Council’s Environmental Assessment Officer)

• Jeremy Morice (Office of Water – Water Regulation Officer)

• Theresa Whittaker (Council’s Senior Development Project Officer)

• Jason Windsor (Southern Habitat Environmental Solutions employee)

37. As earlier noted, of those deponents, only Mr Sharp was required for cross‑examination. The Prosecutor also tendered a number of items of documentary material. They comprised:

1. The Prosecutor’s bundle (Exhibit A);

2. A bundle of documents entitled Exhibit JW1 (being the documents referred to in the affidavit of Mr Windsor (Exhibit B);

3. A bundle of documents entitled Exhibit JS1 (being a folder of documents referred to in Mr Sharp's affidavit) (Exhibit C);

4. A bundle of documents entitled Exhibit MM1 (being the documents referred to in the affidavit of Mr Misdale) (Exhibit D);

5. A landscaping plan, prepared by Ochre Landscape Architects (Exhibit E);

6. A subdivision plan, prepared by KFW Infrastructure Professionals (Exhibit F);

7. A statement of environmental effects (Exhibit G); and

8. The RAP, prepared by MEtech Consulting Pty Ltd (MEtech) (Exhibit H).

38. The Prosecutor handed up copies of the relevant extracts from the Wollongong Local Environmental Plan 2009. To understand his opening, the Prosecutor also handed up additional A3 copies of air photos that formed part of Exhibit C (being folios 17 and 92 of that exhibit). These air photos showed, relevantly, the site and its vicinity before the clearing and earthworks leading to the charges (folio 92) and the extent of clearing and the state of the earthworks on the site at the time of the “stop work” order (folio 17). Each of these air photos, also relevantly, showed the cadastral boundaries of the site and of the surrounding streets and residential development.

39. The Prosecutor took me to a number of elements in the affidavit evidence in addition to that which was to be drawn from the two air photos.

Mr Sharp’s interview of Mr Eldridge

40. On 25 August 2014, Mr Sharp interviewed Mr Eldridge. It was an interview conducted under caution. It will be necessary to reproduce portion of the transcript of this interview later.

Mr Sharp's cross-examination by Mr Eldridge

41. Mr Eldridge asked Mr Sharp a number of questions concerning the nature of his role at the Council and the experience that he brought to it. He elicited the information that Mr Sharp did not have any technical qualifications, particularly in relation to matters arising in these proceedings.

42. Mr Sharp had undertaken three inspections of the site, those being:

1. 23 July 2015, when he had visited the site alone;

2. 25 July 2015, when he had been accompanied to the site by Mr Morrisey; and

3. 1 August 2015, when he had been accompanied by Mr Morrisey and by Ms Kirwood.

43. After having had the procedural process explained to him, Mr Eldridge called for any notes of the site inspections made by either Mr Morrisey or by Ms Kirwood. The Prosecutor drew Mr Eldridge's attention to the fact that site inspection notes by Mr Morrisey were attached to Mr Morrisey’s affidavit, but that the Prosecutor would see whether he was able to produce any notes prepared by Ms Kirwood in response to the call. He subsequently advised that he had been instructed that there were no such notes prepared by her.

44. Mr Eldridge’s cross-examination of Mr Sharp provided nothing of substance to assist me in my resolution of these matters.

45. Mr Sharp was stood down and excused, at which point the Prosecutor closed the Council's case.

Mr Eldridge’s evidence

Mr Eldridge's evidence-in-chief

46. I asked Mr Eldridge if he wished to make any opening statement prior to entering the witness box and, in response, he indicated that he did not seek to do so but wished to proceed to the giving of his evidence. He entered the witness box and was sworn.

47. Mr Eldridge described the remediation processes for the site being undertaken by MEtech under his project management. His narrative explanation was comprehensive and did not seek to put any gloss on his role or on what had taken place. He described, extensively, the extent of the “fly dumped” contamination on the site. He did, however, also refer to the vegetation, the clearing of which had given rise to Charge 1, as “green waste”.

The Prosecutor’s cross-examination of Mr Eldridge

48. The Prosecutor cross-examined Mr Eldridge. In essence, the cross‑examination confirmed the centrality of Mr Eldridge’s role in the process leading up to the activities on the site and his involvement in the activities subsequently undertaken on the site up to the time the Council ordered that the works cease.

The sequence of work on the site

49. Overnight, between the second and third day of the hearing, in light of the evidence given by Mr Eldridge in his in-chief narrative and elicited by the Prosecutor during his cross-examination of Mr Eldridge, I concluded that I did not have an adequate picture of the sequence of activities that had been undertaken on the site after commencement by MEtech of its remediation process. As a consequence, I indicated to the Prosecutor, at the commencement of the third day, that I proposed to ask Mr Eldridge some questions and, should the Prosecutor wish to do so, he would be provided with an opportunity for further cross-examination of Mr Eldridge in light of the response.

50. To provide a clear understanding of what followed, it is appropriate to reproduce, from the transcript, my question and Mr Eldridge’s response. The transcript discloses (Transcript 9 November 2016, page 149, lines 5-43):

Q. What I want to ask you is this first. When the activities commenced on the site that is, activities being undertaken by Metech, but under your supervision as the project manager was the vegetation clearing undertaken first as the first activity on the site?

A. Yes.

Q. Second, was that vegetation clearing undertaken as a single continuous course of activity across the whole of the site, or did it get carried out in some other fashion?

A. No. It was a continuous clearing of one side. The what we're calling the southern side of the creek. The clearing, that was concentrated on for the first six weeks. We cleared, as those photos show

Q. So you spent six weeks clearing the southern side of the watercourse?

A. Clearing the remediator, yeah. Et cetera, et cetera. Clearing took about maybe two weeks. Maybe less.

Q. What happened after the remediation on the southern side of the watercourse?

A. Okay. Then we moved up into the area which is at the head of the creek at the top of the property.

HIS HONOUR: Can you hear this, Mr Howard?

HOWARD: Yes, I can. Thank you. May it please the Court.

HIS HONOUR

Q. Yes.

A. Okay. Moved into the area at the top of the creek, which is adjacent to the little place we came around there and that was just there wasn't too much contaminated stuff. That was just full of rubbish, so that was cleared and scoured and tested, and then we that's when the bridges were put in to get across the creek, and the small machines went across the creek and started lifting the vegetation so we could start seeing what was under it. That's when during that and that also was done from the top and the bottom. There was two small machines over there clearing it. That's when the area was cleared, and that's when he discovered the serious contamination on the creek bank and that's when it all came to a halt.

Mr Eldridge's re-examination narrative

51. As I had earlier indicated to Mr Eldridge would be the case, I permitted Mr Eldridge to deliver a narrative response to matters to which he had been taken in cross-examination by the Prosecutor. Before this process commenced, the Prosecutor indicated that he did not propose to take objection to that which Mr Eldridge might say and that he took this position on the basis that it was unnecessary, for the purposes of the record, to have a precise dissection of that which Mr Eldridge would say was properly to be regarded as evidentiary, and that which might be regarded as submissions, as the Prosecutor and I, both being experienced in the distinction, would treat as evidence that which Mr Eldridge said should properly be so regarded, and as submissions which properly fell within that classification.

52. It is unnecessary, at this point, to undertake a detailed analysis of Mr Eldridge's narrative response to the Prosecutor’s cross-examination. It is, however, in my assessment, appropriate to reproduce one short passage of what he said concerning the standard to which the remediation activities undertaken by MEtech had been conducted pursuant to the RAP up until the time the Council ordered that work on the site cease. The transcript discloses, on this point (Transcript 8 November, page 129, line 47 to page 130, line 1):

And every other thing we'd done on that site demonstrates the highest level of professional applications. Every inch of that place was remediated by Metech. It was done properly. Every ounce of that soil was tested. There was nothing done there and to the best of our ability we took that and gave back a clean site. What remains there today is something that's not.

53. This evidence is uncontradicted by any evidence from the Council; is entirely consistent with the explanation given by Mr Eldridge in his primary narrative evidence; and is borne out by the photographs of the remediation activities on the southern side of the watercourse shown in the photographs from Exhibit C to which Mr Eldridge took me during the course of his primary narrative evidence.

Comment on Mr Eldridge’s evidence

54. Mr Eldridge, during each of the three phases whilst he was in the witness box (narrative evidence-in-chief; cross-examination; and narrative evidence in reply), generally gave that evidence in a candid fashion. It is also to be observed that the initial contact with the Council causing it to investigate the activities that had been undertaken on the site, with that investigation resulting in these charges, had been instigated by Mr Eldridge rather than being initiated by the Council. Finally, on this general point, it is to be observed that the transcript of the interview of Mr Eldridge by Mr Sharp, from which I have later extracted elements, shows that, on that occasion, although trying to justify the activities that had taken place, Mr Eldridge appeared to respond to the questions posed by Mr Sharp in a frank and candid fashion.

The earlier development consent

55. When the consortium that now owns the property purchased it, it did so from the National Australia Bank, the mortgagee in possession of the site. At the time of the purchase, there was an extant development consent for the site granted by the Council.

56. This development consent had granted approval for four multi-storey residential apartment buildings, to be developed as a staged development, on the southern side of the watercourse traversing the site. It was Mr Eldridge's evidence that the consortium, for which he was undertaking his project management responsibilities, did not ever intend to rely on that development consent but had always proposed a multi-allotment residential development across the site and with single dwellings on each allotment. A schematic for such a development was attached to the RAP and the SEE when the Council's consent was sought for the proposed remediation of the site. This schematic is discussed in more detail later.

57. However, for the purposes of these proceedings, Mr Eldridge was taken to two documents relating to the earlier development consent. These documents were:

1. A copy of the concept landscape plan for the four-block apartment development proposal. This landscape plan had been prepared by Ochre Landscape Architects and was dated 8 July 2004. This landscape plan became Exhibit E; and

2. The terms of relevant portions of a Vegetation Management Plan (the VMP) that had been prepared for the purposes of this earlier approved development. This VMP had been prepared by Mr Jason Windsor, who had provided an affidavit in these proceedings. The VMP formed part of Exhibit B.

The documentary evidence

58. I have earlier listed the documents that had been tendered by the Prosecutor. It is necessary to consider a number of them in some detail.

The Remediation Action Plan

59. The RAP was prepared by MEtech and was dated 20 November 2013. In the section of the RAP headed “Site Identification”, the following is included in the “2.2 Site Layout”:

Other materials present at the site are generally represented by discrete stockpiles from different sources, indicative of multiple occurrences of fly-tipping in the past. These wastes appeared to be predominantly located adjacent to both the northern and southern access gates, as well as along the access path through the centre of the site.

Fragments of fibro-cement sheeting which has been confirmed to contain asbestos, hereafter referred to as Asbestos Containing Materials (ACM), were identified on and within stockpiled fill materials located in the northern portion of the site, in the vicinity of TP21 and TP12 (refer Figure 3).

Figure 3 shows the various sampling locations across the site where sampling was undertaken by either Douglas Partners in 2006, or by MEtech in 2013. Sampling was undertaken either by test pit (predominantly, and by Douglas partners in 2006) or surface sampling (by both Douglas Partners in 2006 and MEtech in 2013).

60. The 2006 Douglas Partner test pits disclosing the presence of asbestos material, referred to in the above extract from the RAP, are near the entrances to the site (TP21 being close to the Little Place entrance and TP12 being near the entrance from Jackson Avenue). Later, in Pt 6 of the RAP entitled “Remediation Strategy”, there is a section entitled “6.2 Extent Of Remediation Required”. It reads:

Distribution of the ACM across the site does not appear to be widespread, but rather localised to areas subject to specific occurrences of fly-tipping. Based on the results of the investigation works completed, these areas are all located east of the creek, within the vicinity of TP2, TP10, TP12, TP16, TP21 and TP31 (refer Figure 4).

61. In the above extract, east, in fact, refers to south, as the RAP adopts a notional orientation of the long axis of the site (and therefore of the watercourse), being north-south rather than east-west as is the correct position. This portion of Pt 6 of the RAP references Figure 5, saying that it illustrates the extent of remediation required to meet the remedial objectives.

62. The next relevant portion is “6.3 Remediation Acceptance Criteria”. This reads:

To determine the success of the proposed remediation plan and to evaluate available remedial options, it is necessary to define appropriate remediation acceptance criteria (RAC).

Based on the proposed development proposal, there will be two distinct land use settings at the site once development is completed. These include:

� Area 1: subdivided residential lots standard (low density) residential; and

�   Area 2: local road commercial/industrial.

63. There is then referenced Figure 6, the indicative subdivision layout plan prepared by K F Williams & Associates Pty Limited. This is discussed below, as it is the proposed residential subdivision layout schematic appended not only to the RAP but also to the SEE submitted to the Council with the application for approval to undertake the remediation activities.

64. There can be no doubt, based on “6 Remediation Strategy” of the RAP, that remediation was intended to be of all contamination across the site to render it fit for the proposed intended future uses as allotments for single residences.

65. Table 6.1, entitled “Remediation Acceptance Criteria (RAC)”, makes it clear that, for the residential-designated areas of the site in the residential layout schematic, there is to be no visible asbestos and this is footnoted to the table to read “all fill materials should be removed such that only natural soils remain and the RAC is achieved”.

66. The central portion of the site, surrounded by the perimeter road, is designated as commercial/industrial in the RAP and, for this area, Table 6.1 notes that this area will be sealed by a road, and validated, imported fill materials required for the road construction.

67. Part 11 of the RAP is entitled “Contingency Planning”. It includes “11.3 Unexpected Finds Protocol”. It is unnecessary to quote at length any portion of this protocol. It is, however, clear from its terms that it is designed to deal with the process to be followed if there are, amongst other things, additional areas of surface or buried asbestos contamination discovered during the course of the remediation activities.

68. The protocol identifies eight steps that are to be followed in such circumstances. Relevant to these proceedings, (7) and (8) make it clear that, if assessed as necessary, such additional contamination is to be remediated and an addendum to the RAP prepared and provided to the site auditor for approval prior to commencement of works.

69. This is followed by the requirement that:

Site supervisor to maintain isolation of area until it has been remediated and validated by the environmental consultant.

70. There is no mention, in this regard, of consulting the Council, or seeking to obtain approval from the Council, if remediation is proposed to be effected at locations outside those identified in Figure 5 attached to the RAP.

71. All of this is to be considered in the context where the express terms of condition 1 of the development consent provides that the development consent was approved for implementation consistent with the RAP “except as amended by the conditions specified and imposed hereunder”. Those conditions specified and imposed included condition 20 (providing the foundation for Charge 1) and conditions 5 and 6 (providing the foundations for Charge 2).

The Statement of Environmental Effects

72. The SEE that accompanied the Remediation Development Application (the RDA) contained a number of statements at various places within the document that asserted that the remediation activities for which consent was being sought were to be confined to the southern side of the watercourse.

73. It is also to be noted that there were two schematics attached to the SEE. The first was a marked aerial photograph that formed Figure 5 to the RAP, a figure to which it will be necessary to return, and the schematic subdivision layout prepared by KFW Infrastructure Professionals for the site. In this context, a matter to which it will also be necessary to return, both these documents were also appended to, and formed part of, the RAP.

74. In his oral evidence in response to questions from the Prosecutor on this point, Mr Eldridge said that this was not his understanding of the nature of the remediation for which consent was to be sought. He indicated that he felt that the relevant passages may have been derived by having been copied from an earlier document prepared by the same consultancy, as that consultancy had also prepared the application that had led to the earlier development consent granted by the Council for the site for four multi-storey apartment blocks on the southern side of the watercourse.

72. In this context, it is important to note that Mr Eldridge had acknowledged that he had been involved in the development industry for 30 or 40 years and that, in that role, he had been responsible for the lodgement of hundreds of development applications to various councils. As a consequence, there can be no suggestion of naïveté in Mr Eldridge's understanding of the development application and assessment process undertaken by councils, particularly councils’ reliance on the accuracy of information provided to them in support of development proposals.

73. The only alternative conclusions reasonably open to me with respect to the misleading statements made in the SEE concerning the proposed extent of remediation being to the south of the watercourse is that Mr Eldridge either did not read in detail the SEE provided to the Council in support of his application, if it was intended that there be extensive remediation north of the watercourse, or, if this was not the position and such remediation was contemplated, he made a submission to the Council about the proposed activities that he knew was inaccurate.

Mr Sharp’s interview of Mr Eldridge

77. On 25 August 2014, Mr Sharp conducted a recorded interview at the Council's premises with Mr Eldridge. This interview was conducted under the terms of a warning that was read by Mr Sharp at the commencement of the interview. A copy of the transcript of the interview formed part of the material exhibited to Mr Sharp's affidavit, with the transcript being behind Tab 25 of Exhibit C.

78. In cross-examination, the Prosecutor took Mr Eldridge to portion of the transcript dealing with the vegetation located on the site. This portion of the transcript (between question/answer 49 and question/answer 60, Exhibit C, folios 189-191) and was in the following terms (“I” being Mr Sharp and “he” being Mr Eldridge):

Q49	I said:	Were there any areas within the premises that remediation work should not have been undertaken?
He said:	No. The only question would have been down and around those trees, but there was deadly blue asbestos. It needed to go. Everything that was contentious does have support and verification.
Q50	I said:	I have been advised that there were locations within the premises which have been identified as having Endangered or protected species of plants and Subtropical Rainforest. Can you tell me anything about this?
He said:	Yes. The location was in immediate proximity to an area of particularly toxic and dangerous material which required immediate removal.
Q51	I said:	Can you tell me where on the premises those endanger or protected species of plants & Subtropical Rainforest were generally located?
He said:	There was not subtropical rainforest to start. There were vines growing in trees which are still there ad are protected. The area on the north western bank of the creek about 10-15 metres from the centre of the had been covered with house hold materials obviously form a demolition site.
Q52	I said:	Has that vegetation been totally cleared from the premises?
He said:	The trees and vines remain. Everything else has been removed. The grass was waist high.
Q53	I said:	Who authorised those areas to be cleared?
He said:	I did.
Q54	I said:	Besides the remaining trees and vines why were those areas cleared of vegetation?
He said:	As I said it was impossible to remediate the place without it.
Q55	I said:	Who undertook those works?
He said:	There a list of contractors. I’ll give you a copy of the list with the statement of facts.
Q56	I said:	Did you have approval from Council or any other authority to clear those areas of endangered and protected species of plants and alleged Subtropical Rainforest?
He said:	To start with there was no subtropical rainforest on the site. The Removal of the endangered plants was an onsite decision I made. It had to be done due to the dangerous material on site.
Q57	I said:	Did you notify Council prior to the clearing of that vegetation occurring that those areas containing protected or endangered species of plants & Subtropical Rainforest needed to be cleared?
He said:	No. Again there was no subtropical rainforest on site. The removal of toxic material was necessary. I told them to do it.
Q58	I said:	Did you advise the owners of the premises prior to the clearing of the endangered and protected species of plants & Subtropical Rainforest that those areas were to be cleared?
He said:	Again there was no subtropical rainforest on site. No. It’s my    job.
Q59	I said:	Were you aware that the premise has been identified as having areas where there are endangered and protected species of plants and Subtropical Rainforest?
He said:	There was no subtropical rainforest on site. I was aware but the dangerous material needed to be cleared.
Q60	I said:	When did you first become aware of endangered and protected species of plants and Subtropical Rainforest?
He said:	There was no subtropical rainforest on site. Its on the DA.
Q61	I said:	Did any of the owners of the premises advise you they had knowledge that there were locations within the premises which may, or do, contain areas of endangered and protected species of plants and Subtropical Rainforest?
He said:	There was no subtropical rainforest on site. No. I don’t think they were aware at all. I don’t even think they all knew the DA’s contents.
Q62	I said:	Did you advise any of the owners of these areas of endangered and protected species of plants and Subtropical Rainforest within the premises prior to works commencing at the premises?
He said:	There was no subtropical rainforest on site. No.

The subdivision layout schematic

79. Attached to both the RAP and the SEE that were submitted to the Council in support of the development application for remediation approval was a subdivision schematic for the site. This plan shows an anticipated yield of 24 residential allotments located on either side of a piped watercourse (this being confirmed by Mr Eldridge during cross‑examination (Transcript 8 November 2016, page 80 line 46 to page 81, line 9)). This schematic had been commissioned by Mr Eldridge for the purpose of supporting the remediation application.

80. Although Mr Eldridge said, in his oral evidence, that it was purely for illustrative purposes and that any detailed residential development application for single residence allotments would need to follow completion of remediation which rendered the site fit for that purpose, it is clear that this schematic (a copy of which is reproduced below) shows an allotment layout envisaging residential allotments abutting the entirety of the northern boundary of the site and with a number of those allotments (plus the internal road which they would front) impinging on the identified area of the Illawarra Subtropical Rainforest and the Cynanchum elegans in a fashion incompatible with the protection of that vegetation.

81. It is to be observed that, in addition, implementation of any residential subdivision development based on this concept would, in addition to being incompatible with preservation of the protected vegetation, also be incompatible with protection of the riparian zone of the watercourse.

The present state of the site

82. A number of the photographs in Exhibit C which depicted the state of the site at the location where the Illawarra Subtropical Rainforest and the Cynanchum elegans had been growing. These photographs make it clear that, with the exception of a small number of what appeared to be reasonably substantial, but probably not yet fully grown, trees (protected by construction fencing), this portion of the site had been, effectively, entirely denuded of vegetation.

The Ochre Landscape Architects Landscape Concept Plan

83. As earlier noted, this plan was prepared for a previous development application for the site – one proposing development on the southern side of the watercourse only.

84. Mr Eldridge indicated, in response to a question from the Prosecutor, that he had seen this plan and was familiar with it at the time he was advising the purchasing consortium and preparing the RDA (Transcript 8 November 2016, page 77, line 19 to page 78, line 1).

85. The Landscape Concept Plan shows no development north of the watercourse and notes, by close-based vertical marking, the location of the Illawarra Subtropical Rainforest and, within that area, by dotted perimeter, the location of the occurrence of the Cynanchum elegans. This plan also contains three annotations directly linked to these vegetation aspects of the northern side of the watercourse. The annotations are in the following terms:

1. At the top of an arrow pointing to a dotted, outlined area just to the north of the watercourse and in the centre of the site - “Cynanchum Elegans Zone”;

2. At the top of an arrow pointing to a large, vertically hatched area to the north of the watercourse and in the centre of the site – “Lowland Dry-Subtropical Rainforest (EEC) to be Revegetated”; and

3. In area just to the north of the watercourse and in to be Retained and Revegetated”.

The Vegetation Management Plan

86. There are two aspects of the VMP (Exhibit B) that had been prepared for submission with the multi-storey apartment development application that are relevant in these proceedings. First, on folios 21 and 22 of Exhibit B, this management plan recorded, in a list of species and vegetation associations on the site, the following as part of that list:

2.3 Vegetation Audit

…

2.3.2 Audit Results

In total, 151 plant species, representing 85 families, were recorded from the site (Appendix A, B). The vegetation assemblage comprised 73 native and 78 alien or weed species. The northern and southern embankments shared a similar number of weed species; i.e. 47 and 53 respectively. The northern embankment had a substantially greater number of native species than the southern embankment; i.e. 65 and 9 respectively.

The southern embankment contained notably few native species, all of which occurred at very low abundances. Most native southern embankment species, such as Juncus usitatus, Alisma plantago-aquatica, Alocasia brisbanensis and Typha orientalis, were confined to the edge or interior of the riparian zone that traverses the site. The southern embankment was dominated by a continuous, dense swathe of low-lying, herbaceous weeds typical of anthropogenically-disturbed, open land with poor soil. The most abundant species included the grasses Bromus catharticus, Lolium spp. and Pennisetum clandestinum; herbs Foeniculum vulgare, Trifolium pratense; and vines Thunbergia alata and Ipomoea indica. Unlike the alien grasses, which are widespread and common, the dominant herbs and vines occurred in dense, but isolated and sporadic patches. It is likely that these patches represent invasion foci from which the weed species will continue to proliferate rapidly across the site. Many of these key weed species were associated with mounds of refuse and garden waste. Indeed, dumping of garden waste by surrounding residents is probably the most likely source of weed propagules.

The northern embankment contained a very diverse assemblage of native and weed species. The native species assemblage was confined to a central, dense, 2250 m3 patch of vegetation (see Figure 2,1), dominated by trees Elaeodendron australe, Croton verreauxii, Acacia maidenii, Melicope micrococca and Streblus brunonianus with an understorey of ferns, small herbs, and scrambling vines Madura cochinchinensis and Sarcopetalum harveyanum. With reference to NPWS (2002) and Daly and Rudd (2005), and based on the characteristic species occurring on the site, our determination is that the vegetation on the northern embankment represents remnant Lowland Dry-Subtropical Rainforest (LDSR). The LDSR is a sub-formation of Illawarra Subtropical Rainforest, which is listed under the TSC Act (1995) as an Endangered Ecological Community. Importantly, a population of Cynanchum elegans, a vine species listed as endangered both under the EPBC Act (1999) and TSC Act (1995), was found on the northern embankment along the southern edge of the stand of LDSR. This occurred in association with disturbed, dense thickets of Lantana camara and Chrysanthemoies monilifera ssp. rotundata (refer Figure 2.1).

Despite high native species diversity, a high number of weed species were found across the northern embankment. The majority of weed species were confined to native canopy openings along the north-eastern and north-western site boundaries (see Figure 2.1), being dominated by dense stands of the woody thicket-forming shrubs Lantana camara and Chrysanthemoides monilifera ssp. rotundata and grasses Ehrharta erecta and Pennisetum clandestinum. Most weed species were excluded from the dense patch of LDSR, probably as a result of fierce competition with superior natives for light and nutrients. The most common weed species located within the LDSR were shrubs Ochna serrulata; vines Thunbergia alata and Anredera cordifolla; grass Ehrharta erecta; groundcover Asparagus aethiopicus; and trees Ligustrum spp. Most of these species occurred sporadically, although several, most notably Anredera cordifolla and Asparagus aethiopicus, were abundant throughout the LDSR, and represent a significant threat to its future conservation.

87. In addition, there was a section on folio 24 of this plan that discussed the presence of this vegetation on the site in a little detail. That element of the VMP was in the following terms:

2.4 Identification of Endangered Species/Communities

Importantly, this study identified both an Endangered Ecological Community, namely Illawarra Subtropical Rainforest, and species, namely Cynanchum elegans, occurring across the northern embankment of the site (see Figure 2.1 for localities).

88. Mr Eldridge initially acknowledged that he had read the VMP (Transcript 8 November 2016, page 91 lines 1-7) but he subsequently appeared to resile from this position (Transcript 8 November 2016, page 95 lines 24-25). His change of position followed questioning by the Prosecutor concerning the terms of this document, particularly its references to the Illawarra Subtropical Rainforest and the Cynanchum elegans.

89. A particular passage to which Mr Eldridge was taken concerning this vegetation was in the following terms:

Q. Could I take you page 22 of the exhibit B, please, which is still within the vegetation management plan. I want to draw to your attention the last paragraph on page 22, it states as follows; "The northern embankment contained a very diverse assemblage of native and weed species. The native species assemblage was confined to a central dense 2250 square metres patch of vegetation dominated by trees", I won't read the species out, but they're listed in the document:

"with an understory of ferns, small herbs and scrambling vines. With reference to NPWS2002 and Daley and Rudd 2005 and based on the characteristic species occurring on the site, our determination is that the vegetation on the northern embankment represents remnant low land dry subtropical rainforest LDSR. The LDSR is a subformation of Illawarra subtropical rainforest which is listed under the TSC Act as an endangered ecological community."

You see, what I want to suggest to you, Mr Eldridge, is that in 2013 when you became the project manager for this a proposed development comprising a 24 or 25 lot subdivision, you were aware, having read this VMP that there was

an identified occurrence of an endangered ecological community on the northern embankment of this site; you knew that, didn't you?

A. Did I know that at the time, at this stage I can't remember but I wouldn't have paid any attention to the DA because it had nothing to do with what we were doing.

Q. Come, come Mr Eldridge, as an experienced property

A. My answer is no.

Q. As an experienced property developer, you would of course have regard to whether a qualified or ostensibly qualified consultant had identified the presence of an endangered ecological community on a development site, that's right isn't it?

A. My answer is no.

Q. Are you telling the Court that you, as the project manager you thought that the existence of an endangered ecological, whether or not, an endangered ecological community existed on a development site made no difference to what you could and couldn't do by way of a development of the site?

A. What I could and couldn't do was bound by the Remediation Action Plan.

Q. See I want to suggest to you that you're not being fully candid in giving this evidence, what do you say to that?

A. I am answering to the best of my memory, now you're asking me to say, had I, did I and if I did. You're making assumptions.

(Transcript, 8 November 2016, page 95, line 33 to page 96 line 26)

90. I found Mr Eldridge’s backtracking on the extent to which he had knowledge of what was contained in the VMP to be unconvincing.

Charge 1

91. The first charge concerns the breach of condition 20 of the development consent by clearing the protected vegetation.

Identification of the Illawarra Subtropical Rainforest and the Cynanchum elegans

92. Although the area had been previously identified by the Council as having a stand of the Illawarra Subtropical Rainforest and a number of specimens of Cynanchum elegans growing on the site and this had also been identified on the Landscape Concept Plan prepared by Ochre Landscape Architects, the Council also provided specific expert evidence in these proceedings identifying the presence of plants characteristic of the Illawarra Subtropical Rainforest and the presence of individual specimens of the Cynanchum elegans located amongst the cleared vegetation that had been piled on the site after the clearing had been undertaken.

93. That evidence was provided by an affidavit from Mr Matthew Misdale to which were appended a number of colour photographs. The coloured photographs were nominated in the body of the affidavit as identifying relevant vegetative characteristics demonstrating the presence of the characteristic plants of the Illawarra Subtropical Rainforest and the presence of a number of specimens of Cynanchum elegans.

94. This evidence was uncontested and provides the appropriate proof, for the purposes of the first matter charged against Mr Eldridge, of the prerequisite existence of that which the Council had sought to protect by the imposition of condition 20 in the conditions of consent for the RDA approval.

The critical activity sequence

95. It seems to me that the critical activity sequence that arises for consideration for this charge is that associated with the decision to undertake remediation activity across the watercourse and, effectively, in areas depicted on Figure 5 of the RAP, this being the area to the north of the watercourse, the vast majority of which had been identified on that figure as being expected to be a natural soil area where remediation was not expected to need to take place. This, it might be said, was Mr Eldridge's and MEtech’s crossing of a metaphorical Rubicon.

96. To understand that which follows, it is appropriate to reproduce, here, a copy of Figure 5 of the RAP and to note, again, that this figure not only formed part of the RAP but was also appended to the SEE that had accompanied the development application and the RAP when they were submitted to the Council seeking consent to undertake remediation activities on the site. That figure is reproduced immediately below:

97. However, to provide greater clarity of understanding of the further discussion of this document, it is appropriate to reproduce, at larger scale, the legend appearing at the bottom right-hand corner of the figure.

98. I am satisfied that it is reasonable to assume that, on the basis of this figure and the express (albeit erroneous in Mr Eldridge's view, as earlier discussed) assertions in the SEE, the remediation activities were proposed to be undertaken solely to the south of the watercourse, the Council was clearly entitled to expect that this would be the case. As is self-evident from the first of the charges that has been laid against Mr Eldridge, the Council wished, expressly, to mandate the protection of the Illawarra Subtropical Rainforest and the Cynanchum elegans climbing trees within it.

98. I have earlier set out the evidence which Mr Eldridge gave concerning the sequencing of activities from the commencement of work on the site until the Council ordered that work cease. It is also appropriate to note that Mr Eldridge’s contacting of, first, Mr Jason Windsor, and, after Mr Windsor indicated he was unable to assist Mr Eldridge, Mr Eldridge’s contact with Mr Nathan Garvey of Biosis Research Pty Ltd (Biosis), a consultancy to which Mr Windsor had directed Mr Eldridge, can only be regarded as post facto contacts made after the vegetation had been removed.

99. It is self-evident that there had been no contemplation of contact with, or seeking guidance from, any expert prior to removal of the vegetation, nor was there any attempt to make contact with, or seek guidance from, the Council after the machinery utilised to clear vegetation had crossed the watercourse to the north and, by clearing from each end (as was Mr Eldridge's evidence), had disclosed the significant extent of contamination to the north of the watercourse. Such disclosure necessarily occurred (given the starting points for the vegetation clearing at the Little Place and Jackson Avenue ends of the site) prior to having that machinery embark upon clearing of the vegetation required to be protected by the terms of condition 20 of the remediation development consent.

100. It is that position, in summary, that encapsulates the objective factual sequence leading to, and embodying, the commission of the first offence charged.

101. The evidence set out above clearly discloses Mr Eldridge’s commission of the offence in Charge 1.

Charge 2

103. Conditions 5 and 6 of the remediation development consent required that, before any activity could be carried out on the site within the defined riparian zone of the watercourse, a controlled activity approval was required to be obtained from the Office of Water. Conditions 5 and 6 were in the following terms:

5.   Compliance with General Terms of Approval

The General Terms of Approval issued by the NSW Department of Primary Industries Office of Water shall be complied with at all times.

Prior to the Commencement of Works

6. Requirements of the NSW Department of Primary Industries Office of Water – Part 3 s.91 of the Water Management Act 2000

The submissions of documentary evidence to Wollongong City Council, confirming that the required Part 3 Approval under the Water Management Act 2000 has been issued by the NSW Department of Primary Industries Office of Water, is required prior to the commencement of works.

104. I have earlier set out Mr Eldridge’s description of the sequencing of works that were undertaken on the site up to the time that the Council ordered the work to cease. That sequencing discloses that, for the purposes of accessing the area to the north of the watercourse, MEtech created crossings of the watercourse at the eastern end of the site in the vicinity of Little Place and at the western end of the site in the vicinity of Jackson Avenue. These crossings permitted access to the northern portion of the site for plant to undertake the vegetation stripping, working in a pincer movement toward the centre of the portion of the site to the north of the watercourse.

105. Amongst the photographs in Exhibit C to which Mr Eldridge took me were several images depicting the crossing that had been constructed at the western end of the site in the vicinity of the access from Jackson Avenue. The access comprised placing concrete pipes, some half a metre or so in diameter and covered with earth, to provide an at-grade access track in a generally north-south direction at that point to the northern side of the watercourse. Although Mr Eldridge did not take me to any photograph of the watercourse crossing created at the eastern end of the site, his description of what was occurring made it clear that the crossing at the eastern end in the vicinity of the site access from Little Place was constructed in a similar fashion.

106. Second, Mr Eldridge confirmed that work had been undertaken in the riparian zone to address what he described as “the acid sulphate soil issues” that had been uncovered during the MEtech activities. A number of the photographs he took me to showed what he described as the placement of neutralising material (it appeared to be a white powder in nature) at several locations along the watercourse, including in the watercourse proper. Mr Eldridge described the neutralising process in his oral evidence.

107. Third, several of the photographs attached to the exhibit to which Mr Eldridge took me were taken in a generally westward direction toward the eastern end of the site, looking along the line of the watercourse. It is to be observed that the line of the watercourse has a gentle bow in it as it traverses the site, with that bow being in a southerly direction at about the centre of the site.

108. These photographs depicted not only the remediated state of the southern bank of the watercourse, but also the placement of a number of significantly sized stones or pieces of concrete rubble to act as revetment in the elbow of the bend in the vicinity of a point where Mr Eldridge described a stormwater discharge from properties on the southern edge of the site, across the site and into the watercourse. These photographs made it clear that, in addition to the two watercourse crossings, extensive remediation work had been undertaken along the southern bank of the watercourse and, on that side, into the watercourse itself.

109. Fourth, further photographs to which I was taken by Mr Eldridge showed that, at the eastern end of the site, in addition to complete vegetation removal along the northern bank of the watercourse, and into the watercourse itself, construction activity had taken place by the installation of siltation barriers in close proximity to the watercourse (and, although not able to be measured precisely, certainly within the proscribed riparian corridor engaged by conditions 5 and 6 in combination). This siltation fencing had obviously been installed in anticipation of remediation earthworks being undertaken to the north of the watercourse. It was Mr Eldridge's evidence that the intention was to remediate the totality of the area to the north of the watercourse in the same fashion as had been undertaken on the southern side of the site.

110. For the purposes of these proceedings, that which had not yet been carried out, but was intended to be carried out, does not fall within the scope of the second charge (it being confined to what has actually occurred).

111. However, the fourth aspect of the activities in the proscribed riparian zone was clearly undertaken in preparation for activities that would have involved complete removal of all soil containing contamination by stripping back to uncontaminated soil, with the contaminants winnowed through the process described by Mr Eldridge; the contamination, such as car parts, tyres, household waste and other material not requiring special handling being removed from the site for disposal to landfill; and the contaminants, such as asbestos, that required special handling being bagged and, through a recorded chain of custody, disposed of eventually in a landfill licensed to accept such material.

112. All four of these aspects of the activities undertaken on the site fall within the scope of that which was required to be addressed by satisfying the terms of conditions 5 and 6 before carrying out such activities.

113. Mr Eldridge indicated, in his oral evidence, that there came a time when he realised that an approval from the Office of Water was required. He indicated that he made contact with Mr Morice, the relevant regional officer employed by the Office of Water concerning this. Mr Morice has provided an affidavit read by the Prosecutor in these proceedings and, relevantly, he deposed:

…

4.     I am familiar with Lot 52 DP 804360 Jackson Avenue Warrawong ("the subject property").

5.    I have undertaken site inspections at the subject property previously relating to an application for approval for a proposed controlled activity under the WM Act in 2011. This controlled activity application related to development proposed to be carried out pursuant to a development consent approved by Wollongong City Council, No. DA-2004/1801 for the subject property. Whilst I cannot remember the exact dates of my attendances during 2011, I do recall attending with Mr Jay Windsor of Southern Habitat who to my knowledge were engaged to prepare a Vegetation Management Plan for the subject property in relation to that development application.

6.   A controlled activity approval was granted by the NSW Office of Water for DA-2004/1801 on 4 July 2011. Annexed hereto and marked "A" is a copy of that controlled activity approval.

7.   On 21 February 2014, I received a letter from Wollongong City Council referring development application DA-2013/1373 and attaching supporting information . Annexed hereto and marked "B" is a copy of that letter.

8.   My Office allocated to that application a unique Office of Water reference number 10ERM2014/0150.

9.   During my assessment of the referral I spoke with a number of people involved in the application, including Luke Rollinson from the Town Planning Consultancy Division of Martin Morrison Jones, a real estate agency, who prepared the Statement of Environmental Effects for DA 2013/1373, and someone from ME Tech who prepared the Remediation Action Plan.

10.    Sometime between 21 February 2014 and 25 March 2014 I spoke with Mr Robert Eldridge who was named as the applicant on the development application. Whilst I do not remember the whole of the short conversation I do recall saying something to him like:

"We won't be approving works within the watercourse."

11.    He replied words to the following effect:   

"There are areas that have contaminated fill."

12.   I reviewed Annexure B (which is referred to at paragraph 7 of this affidavit) and proceeded to issue "General Terms of Approval" under the WM Act on 25 March 2014. Annexed hereto and marked "C" is a copy of the "General Terms of Approval" I issued on behalf of the Office of Water.

13.   On around 29 July 2014 I was advised by email from Council officer John Sharp that works had commenced at the property. Annexed hereto and marked "D" is a true copy of that email.

14.   Attached to the email of 29 July 2014 in Annexure D were photographs of works that had been carried out on the subject property. I was concerned that what I saw in those photographs were works that required a controlled activity approval because the majority of the subject property is waterfront land as defined in WM Act as it is within 40 metres of a watercourse.

15.   After receiving that email I searched the Office of Water's corporate database using the unique reference number 10ERM2014/0150 for the subject property.

16.   At 29 July 2014, no applications had been received by the NSW Office of Water for a controlled activity approval relating to any works or other development sought to be carried out pursuant to development consent DA-2013/1373. At the time of my affirming this affidavit no applications for any controlled activity approval have been received for DA-2013/1373.

17.   Since being advised by Council that works have been undertaken on the subject property I have spoken to Mr Eldridge during several telephone conversations discussing the works undertaken on the subject property. Those conversations took place after the date of the receipt of the email from John Sharp.

18.   During these conversations I told Mr Eldridge that no controlled activity approval had been granted for the works carried out on the subject property.

19.   I have had previous dealings with Mr Eldridge regarding other development applications within the Wollongong local government area. Mr Eldridge has made previous applications for controlled activity approvals relating to works or development proposed to be carried out pursuant to development consents for different sites which have been approved in the past. To the best of my knowledge there have been at least two (2) applications granted following those applications.

114. It is obvious from this evidence, and from Mr Eldridge's own oral evidence, that the four separate types of activity impacting on the watercourse and its riparian zone had been carried out by MEtech (if not to the final state of the site when the Council ordered cessation of the work, at least very significantly) prior to Mr Eldridge making contact with Mr Morice.

115. A combination of the oral evidence given by Mr Eldridge and the images to which I was taken by him during the course of that evidence relevant to this charge, coupled with Mr Morice’s affidavit evidence set out above, provides a complete and proper foundation to conclude that Mr Eldridge’s “guilty” plea was appropriately entered by him to this charge.

The competing environmental interests

116. The factual circumstances of this case are, in my experience, unique. I make that assertion because of the highly unusual nature of the competing, mutually incompatible, impacts of what has taken place on the site.

117. On the one hand, at what might be described as “the green end” of the environmental spectrum, there is no doubt that an element of Illawarra Subtropical Rainforest has been cleared and that a number of specimens of an endangered plant (Cynanchum elegans) were also removed as part of the clearing. It is also self-evident that Mr Eldridge had no particular regard to any ecological value of this vegetation (with the exception of a small number of mature trees, in several stands, that were protected during the clearing operation).

118. Indeed, his repeated reference during his oral evidence-in-chief to the vegetation as “green waste” made it clear, by necessary inference, that he had no regard to the ecological values of the vegetation cleared whilst he was project managing this removal process.

119. On the other hand, the detailed evidence given by Mr Eldridge as to the extent and nature of the contamination discovered on the site (particularly the blue asbestos contamination as demonstrated in photographs to which I have earlier referred) goes to what can, in shorthand terms, be regarded as “the brown end” of the environmental spectrum benefits to be obtained from remediating what was (and significantly, still remains) a highly contaminated site.

120. Three matters of significance arise in this context. They are:

1. First, the location of one of the patches of Cynanchum elegans was growing on the portion of the site on the northern bank of the watercourse at the location shown on the marked air photo behind Tab 4 of Exhibit D, with this location coinciding with photographs numbered 51 and 62, behind Tab 16 of Exhibit C, showing large pieces of blue asbestos in the soil at that location.

It is also to be noted, expressly, with regard to the presence of blue asbestos fragments, that at photographs 26 and 28b, behind Tab 16 in Exhibit C, Mr Eldridge described as undisturbed, save for vegetation clearing, a mound of earth in the vicinity of the lower of two stands of trees (protected by construction fencing), located in roughly the middle of the site, but on the northern side of the watercourse traversing the site.

It was Mr Eldridge’s uncontested evidence that this mound remained in its original undisturbed contour (save for the vegetation clearing) and that it was possible from the photograph to see, in the profile of the mound where some material had been removed, a significant interspersing of asbestos fragments;

2. Second, Mr Eldridge's evidence was that, as a result of the remediation process earlier described, many tonnes of domestic nature contaminating material had been removed from the site. By necessary inference, from the earlier descriptions given of the RAP and the EPA‑accredited site auditor supervision of the asbestos contamination removal process, the recovered asbestos would be disposed of to an appropriately licensed landfill. Indeed, Mr Eldridge specifically confirmed that he understood that this was the case, although he was unable to identify the licensed landfill location to which the asbestos material was to be taken; and

3. At several points during his narrative, Mr Eldridge expressly explained that the material that was being remediated still required to be contained because of the inevitable residual presence of asbestos microfibres in that remediated earth. It was his uncontradicted evidence that that material was to be used as foundational material for the proposed internal roadways within any future approved residential subdivision, with that clean material to be capped by 1.5 metres of certified clean material imported to the site, with that material, in turn, to be sealed by the construction of the tarred surfaces of the internal roads.

121. The processes described by Mr Eldridge for the extraction of such contaminants (including the blue asbestos) through a process involving an EPA-accredited site auditor, together with the description of the nature of the outcome of the remediation process, shows that this was being undertaken in a comprehensive and responsible fashion. The process, I conclude, was undertaken in accordance with the RAP.

122. It is to be observed that, although unnecessary to set out in significant detail the remediation requirements and the nature of the site auditor accreditation process provided for in the framework for remediation of contaminated sites contained in the Contaminated Land Management Act 1997, these processes are rigorous ones for dealing with sites as contaminated as is here the case. Equally, the role and responsibilities of site auditors are also set out in this legislative framework and put significant responsibility on a site auditor before that person can sign off at the conclusion of a remediation action plan that the particular site is fit to be used for the proposed purpose for which it has been remediated.

123. It is also to be observed, in the context of the topography of the site and its location in proximity to Lake Illawarra, that the discharge of up-catchment stormwater from surrounding development passing through the site and discharging, via the watercourse that crosses the site, into the waters of that lake has, at its lowest, posed considerable risk of contaminating material discharging from the site into the waters of the lake.

124. I deliberately choose to describe that as a risk rather than as a certainty as, although Mr Eldridge described it during the course of his narrative evidence as being a certainty, there is no scientific evidence that this is the case.

125. However, it is also obvious from the photographs in Exhibit C (to which Mr Eldridge drew attention during the course of his narrative evidence) that there remains considerable significant and unremediated contamination on the site, primarily on the northern side of the watercourse. The nature of that which was shown in the photographs of those unremediated areas (particularly the extensive presence of blue asbestos fragments) makes it clear that completion of the remediation process is likely to be required prior to any further activity on the site (including any revegetation that might be required).

126. Finally, for completeness on this aspect, it is also to be observed that the treatment process being undertaken as part of the RAP to address the acid sulphate soil problems of the site in the vicinity of the watercourse will have positive downstream environmental consequences for waters traversing the site and discharging into Lake Illawarra. However, the necessity for this treatment only arose as a consequence of the earthworks in the watercourse undertaken without approval.

127. I have set these matters out at some length as, unlike more conventional incidents giving rise to charges such as these here, there is a stark contrast between the undoubted ecological damage caused by the vegetation clearing (vegetation dismissively described by Mr Eldridge as “green waste”), on one hand, and the environmental benefits (particularly in an anthropocentric sense) being derived (but not yet completely so due to the unfinished nature of the process) from the remediation processes being undertaken on the site.

105.   In Willoughby Council v Vlahos [2013] NSWLEC 71 the defendant, a licensed builder, pleaded guilty to carrying out development works without consent. Consent was granted for the demolition and construction of a new dwelling on the defendant’s land with a condition that a large Casuarina tree growing in the rear yard of the land be protected and retained. The defendant subsequently arranged for and supervised the removal of this tree. This decision was not made at the spur of the moment and the defendant being a licensed builder should have “known better”: at [32] and [36]. Craig J concluded that the offence should be classified as of low to moderate objective seriousness and also noted that the loss of a single tree cannot be regarded as trivial: at [27]. An application under s 10 of the Crimes (Sentencing Procedure) Act (CSP Act) was rejected due to a lack of extenuating circumstances: at [45]. The subjective circumstances taken into account were the lack of prior convictions, genuine contrition and remorse, unlikelihood of reoffending, cooperation and an early guilty plea. The defendant was fined $17,500, which was reduced to $12,500, and was ordered to pay the prosecutor’s costs.

106.   In Warringah Council v Bonanno [2012] NSWLEC 265 the defendant was charged with carrying out development without consent in circumstances where consent was required. The defendant cut down and/or removed trees and other vegetation from the Crown Land located on the beachfront between the sea and the rear of his then residential property. The environmental harm caused was substantial, and likely never to be fully remediated while also being clearly foreseeable. There was also a financial motivation due to the defendant’s desire to maximise the sale of his property: at [56]. Taking this into account Sheahan J held that the offence was objectively serious with some aggravating features: at [56]. The subjective circumstances taken into account were the lack of prior convictions, good fame and character, cooperation and early guilty plea (resulting in a 25% discount). The defendant was fined $50,000 discounted to $37,000 and ordered to pay the prosecutor’s costs.

107.   In Lane Cove Council v Wu [2011] NSWLEC 43, the defendant 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.

172. The Prosecutor has not made any specific submissions concerning the offence arising from the construction activities carried out in the waterway without having sought and obtained the relevant approval under the applicable water legislation.

The utility of classifying an offence within a comparative range

173. Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 (at 698) also confirmed that:

The task of a court is to assess the relative seriousness of the offender’s particular offence in relation to a worst case for which the maximum penalty is provided. Having determined the relative seriousness of the offence, the penalty to be imposed is that which approximately correlates upon the scale of penalty set by the legislature from zero to the maximum.

174. Consistent with this, it is necessary to categorise the objective seriousness of the behaviour constituting the offence, in the particular proceedings, as falling somewhere within a range between the “least bad” case and the worst case of such conduct. This is not a matter of mathematical precision, merely a tool to assist with the instinctive synthesis process needing to be undertaken to assess the appropriate penalty for Mr Eldridge.

175. However, the Prosecutor has submitted that both offences should be regarded as being of moderate seriousness (a proposition which I have earlier indicated that I accept) and it would seem to me, therefore, that broadly similar starting sentences are appropriate for each offence. This, of course, must be subject to consideration of matters of totality and accumulation, given that both offences were committed as part of the same general course of conduct.

Costs

176. The Prosecutor seeks an order that Mr Eldridge pays the Council's costs as agreed or assessed. The power to do so is provided by s 257B of the Criminal Procedure Act 1986 and the broad form of the order to be made, absent agreement for a specified sum, is to be as agreed or assessed (s 257G).

177. During the hearings at the end of 2016, the Prosecutor indicated that its costs would be “substantial”. At the resumed sentencing hearing on 20 March 2017, it was indicated that the Prosecutor's actual costs would be of the order of $160,000 (a sum that would be less than that, when in assessable form, but nonetheless of what would certainly be regarded as a significant amount).

178. The amount of costs’ liability to which a convicted defendant will be exposed is a matter to which regard is to be had in the sentencing process.

179. The making of a costs order in favour of the Council can impose, in itself, a significant financial burden and is to be taken into account (EPA v Barnes [2006] NSWCCA 246 at [78]). Although costs orders are compensatory rather than punitive, the costs order to be made in these proceedings imposes a not insignificant financial burden on Mr Eldridge. As a consequence, in my assessment of the appropriate penalties to be imposed on Mr Eldridge, I have had regard to the fact that the costs order which I will make will also impose a significant financial cost on him

Capacity to pay

180. In his affidavit of 2 December 2016, Mr Eldridge set out details concerning two matters. The first of which were matters that related to his personal health circumstances, whilst the second purported to deal with his capacity to pay any fine which I might impose. This latter issue arises as a consequence of s 6 of the Fines Act, a provision earlier set out.

181. On 14 March 2017, the Prosecutor filed a short supplementary submission indicating that, on the basis of tax records provided by Mr Eldridge’s accountant for Mr Eldridge and his wife pursuant to subpoena, the Prosecutor accepted that it was appropriate to apply s 6 of the Fines Act in my sentencing consideration.

182. However, on 16 March 2017, the Prosecutor filed a further submission withdrawing the concession in the 14 March 2017 submission and attaching a bundle of documents that were proposed to be tendered at the resumed sentencing hearing. The two submission documents, and the bundle of documents attached to the second submission, all became exhibits at the resumed sentencing hearing.

183. In essence, the second submission foreshadowed that the Prosecutor proposed to cross-examine Mr Eldridge about two matters going to his capacity to pay. Those matters were:

1. The nature and extent of his involvement in a residential property development at Castle Hill and whether or not he should be regarded as having some form of financial interest in the development (although the development was being carried out, ostensibly, as a joint venture between his wife and another person); and

2. ASIC records showing that he was the owner of 185,000 fully paid shares in a company named Matalym Pty Ltd.

184. To provide context, Mr Eldridge had deposed, in his affidavit of 2 December 2016, that, in addition to his very modest bank balance, the only asset which he owned was a motor vehicle with a value of less than $10,000.

185. At the resumed hearing on 20 March 2016, Mr Eldridge gave oral evidence and, as with his evidence at the earlier phase of the hearings, I permitted him to give his evidence in narrative form, and he did so. He was then cross‑examined concerning the property development at Castle Hill, extensively, and on his shareholding in Matalym Pty Ltd.

186. It is unnecessary to set out, in great detail, the content of the cross‑examination concerning the property development. It is, however, necessary to set out sufficient detail concerning it to understand why, under the circumstances, I have come to the conclusion I have concerning whether or not s 6 of the Fines Act should act to benefit Mr Eldridge in my sentencing discretion. The following matters should be noted, initially, concerning this property development:

1. The site of the development was, as shown in air photographs covering the period 2013 to 2015, largely cleared but had remnant bushland located on it;

2. The site was at a point where two existing streets were intended to join at a T-intersection but that this had not occurred. Construction of those streets was intended to be (and became) an outcome of the subdivision;

3. The resulting subdivision yielded four residential allotments;

4. The sale of each of those allotments was expected to realise approximately $940,000 gross (selling expenses, such as legal fees and agent’s commission, needing to be deducted from this);

5. Three of the allotments were the subject of exchanged contracts for sale at that price and one of those sales had settled;

6. Mrs Eldridge and her joint-venture partner had financed the purchase of the site by mortgage finance on an interest-capitalised basis;

7. The proceeds of the settled sale were paid direct to the mortgagee;

8. The total purchase price of the one large and two small original parcels of land that made up the site prior to the building of the roads and subdivision into four residential allotments had been $1.2 million;

9. The gross proceeds expected to be realised from the sale of the four allotments was $3.76 million; and

10. To ascertain whether Mrs Eldridge and her joint-venture partner would make a profit (and the extent of such profit) would require deducting from the $3.76 million expected realisation of the four allotments of:

1. the amount outstanding to discharge the mortgage;

2. costs associated with gaining development approval from the Hills Shire Council;

3. production costs (including roadworks, drainage, provision of services, and the like); and

4. cost of sales.

187. All activities (other than the gaining of the Council’s development consent) were conducted in Mrs Eldridge's name. The development application was made to the Council by Mr Eldridge. As can be seen from the following discussion, Mr Eldridge acted as the Project Manager for the processes necessary to obtain the development consent for the subdivision from the Council. These activities included:

1. Mr Eldridge acting as the applicant for development consent;

2. Mr Eldridge commissioning a site investigation from MEtech, the environmental consultancy which had been used by him for the Wollongong site activities giving rise to these charges (a copy of the MEtech report became an exhibit);

3. A report dealing with ecological issues relating to the vegetation on the site. Much of this vegetation required to be removed for the purposes of the road construction. The Biosis report notes that it was commissioned by Mr Eldridge and its author noted that Mr Eldridge had guided the author around the site during the course of the field inspection providing the basis for the Biosis report. It is to be noted that, during his cross-examination on 20 March 2017, Mr Eldridge claimed to have no recollection of ever having met the author of the Biosis report, or having accompanied him during the course of his field inspection. A copy of the Biosis report was also tendered; and

4. Mr Eldridge also adverted to a conversation that he had had with the contractor engaged to undertake the construction activities on site that were the necessary preliminaries to completion and registration of the subdivision. From the context of his evidence concerning his involvement with the subdivision project, I consider it to be reasonable to conclude (although Mr Eldridge was not cross-examined directly on this point) that Mr Eldridge’s project management activities included such site supervision as was necessary to monitor the activities of the construction contractor (this being entirely consistent with the nature of the activities he had undertaken for the project at Wollongong that has provided the foundation for these charges).

188. This factual position is to be contrasted with Mr Eldridge's oral evidence in cross-examination as to how much time he had spent on dealing with this joint‑venture development application. His evidence was (Transcript 20 March 2017, page 193, lines 11 and 12):

Because my input at doing the DA would be, what, somewhere between 5 and 10 hours work.

189. Having set that out, I should note that the Prosecutor expressly disavowed any intention to make submissions to me attacking Mr Eldridge’s credit as a witness. The Prosecutor merely relies on the various matters arising out of the documents it has tendered and Mr Eldridge’s oral evidence and cross‑examination to support the proposition that I could not be satisfied, for the purposes of s 6 of the Fines Act, that Mr Eldridge lacks the capacity to pay any monetary penalty that might otherwise be appropriate to be imposed as a result of the commission of the offences to which he has pleaded guilty.

190. The contrast between the range of activities undertaken by Mr Eldridge, with respect to the joint-venture subdivision undertaken by his wife, is a relevant element in my assessment of that submission made by the prosecution.

191. They are also relevant to a second, significant and parallel submission made by the Prosecutor that I should conclude that, despite Mr Eldridge's protestations that it was not the case, Mr Eldridge in fact has a financial interest (of a type it is not necessary to define) in the subdivision being carried out in his wife's name.

192. It was Mr Eldridge's evidence that, over the years, the houses in which he and his wife had lived had been owned solely by her. It was his evidence that, at the present time, they were living in rented accommodation and that such assets as his wife had had were invested in the Castle Hill development. In this context, it is to be noted that the material subpoenaed from his accountants disclosed that Mr Eldridge had no current taxable income beyond that which was provided by his pension and that his wife had (consistent with his oral evidence) an annual income of $18,000-$20,000 from her part-time employment in a marketing role with a telecommunications company. However, it is also to be observed that, over recent years, the accountants had not been requested to prepare any statement of assets and liabilities for either Mr Eldridge or his wife, and no such statements were available to me.

193. It was Mr Eldridge’s evidence that (Transcript 20 March 2017, page 191, lines 19 to 22):

Q. So are you seriously suggesting to the Court that there is a complete separation between your wife's financial interests and yours in relation to the development of properties at Castle Hill?

A. Yes, I am.

194. The whole tenor of Mr Eldridge's evidence (in narrative and in cross‑examination) was consistently to this effect.

195. It is worth recording one further exchange between the Prosecutor and Mr Eldridge. It was in the following terms (Transcript 20 March 2017, page 194, line 6 to line 28):

Q. You accept, don't you, that having been married to Clarinda Eldridge for 23 or 24 years or so, and living with Clarinda Eldridge, as you do, that you will stand to benefit from any profit that she derives from the transaction of developing properties at Castle Hill?

A. We still don't even know if we're going to make profit out of that yet.

Q. I want to suggest that that answer, which was not responsive to my question, nevertheless, does reveal the true position, because of the fact that you answered it by saying "We still don't know whether we are going to make a profit yet"?

A. ..(not transcribable)..

Q. What I want to suggest to you is that by the use of the word "we", you have simply given an answer which reflects what one would conclude, according to ordinary commonsense, which is that you and your wife are in partnership in relation to this venture?

A. No, you're wrong.

Q. Are you suggesting to the Court that if your wife derives financial benefit from the sale of these Castle Hill properties, that you won't benefit at all from it, that she'll keep the money herself and you won't have any access to it? Is that what you're saying?

A. That has been the case since 1990, yes.

196. As the Prosecutor drew to Mr Eldridge’s attention in this exchange, the use of the plural – “we” – is telling in this context.

197. I have earlier noted that the Prosecutor has not submitted to me that I should make any finding concerning Mr Eldridge's credit as a witness and I do not do so. However, the totality of the evidence, including the material quoted immediately above, inevitably leads me to the irresistible conclusion that Mr Eldridge's involvement with the Castle Hill subdivision project has been significant and that it is not possible for me to be satisfied that he does not have a financial interest in the outcome of this joint venture.

198. I also observe that, although Mr Eldridge said, in both cross-examination (Transcript 20 March 2017, page 199, lines 13 and 14) and in his closing submissions, that the production costs for the Castle Hill development were of the order of $2.2 million, I have only his uncorroborated word on this point. This production cost was advanced in support of a general proposition by Mr Eldridge, as I understood him, that the costs of the acquisition of the site and the development processes which have followed, will result in not much more than a nominal profit being made by each of Mrs Eldridge and her joint‑venture partner.

199. It is appropriate to note that, under all the circumstances, I approach this assertion with very significant caution and to have no regard to it in my weighing of matters necessary to be considered as to Mr Eldridge's capacity to pay a financial penalty.

200. The second matter about which Mr Eldridge was questioned was his ownership of 185,000 fully paid shares in Matalym Pty Ltd. Mr Eldridge acknowledged that he had paid for and owned the shares, but he considered that they were worthless as he was a minority shareholder and had no control over, or information about, the company's activities. He indicated that he was in dispute with the majority shareholders. He indicated that he expected that the company was likely to cease to exist in the near future. The inference, as I understood his evidence, that I was asked to draw from his evidence was that these shares were without value.

201. For the purposes of this consideration, it is unnecessary to deal with this matter at length. To my mind, the telling exchange in the Prosecutor’s cross‑examination of Mr Eldridge concerning this company was (Transcript 20 March 2017, page 206, lines 3 to 10):

Q. Just wait for the question, please. You didn't say in your affidavit, did you, I also own 185,000 fully paid shares in Matalym Pty Ltd, but in circumstances that prevail, I say they're not really worth anything, did you?

A. No, I didn't.

Q. You made a conscious decision, didn't you, not to mention your ownership of those shares at all?

A. That's correct.

202. This exchange reinforces the scepticism with which I consider I must approach Mr Eldridge’s evidence about financial matters.

203. It is, at this point, appropriate to set out, again, the terms of s 6 of the Fines Act:

6   Consideration of accused’s means to pay

(cf Crimes Act1900 sec 440AB and Justices Act 1902 sec 80A)

In the exercise by a court of a discretion to fix the amount of any fine, the court is required to consider:

(a)   such information regarding the means of the accused as is reasonably and practicably available to the court for consideration, and

(b)   such other matters as, in the opinion of the court, are relevant to the fixing of that amount.

204. It is for this purpose that I must ask myself, “Can I be satisfied that Mr Eldridge does not have the capacity to pay such financial penalty as would otherwise be appropriate to be imposed on him?” I observe that, for this purpose, there is no positive burden imposed on the Prosecutor to demonstrate that Mr Eldridge does have such capacity. As observed by Preston CJ in Bankstown City Council v Hanna (2014) 205 LGERA 39; [2014] NSWLEC 152 at [181], I need to have sufficient and appropriate evidence to satisfy me that Mr Eldridge is not capable of paying the financial penalties that would otherwise be appropriate to be imposed on him and, on the basis of the evidence I have summarised, I am unable to be satisfied that he lacks that capacity.

205. Finally, I should also observe that (although dealing with the case of a corporation), the Prosecutor also submitted that the effect of what Biscoe J wrote in Leichhardt Council v Geitonia Pty Ltd (No 7) [2015] NSWLEC 79, at [41], was (Transcript 20 March 2017, page 214, lines 24 to 39):

HOWARD: …. I accept what your Honour has just put to me, which is it relates to a company, not an individual. But the point of more general principle is stated that which is not limited to a corporation, that where the circumstances of an offence are serious, a lack of capacity to pay a fine is not the most important factor. And then you will see that there are a number of decisions which are said to support the proposition that a small nominal fine would not satisfy the sentencing objectives of deterrence. I will avoid the descriptive denunciation, your Honour, and just refer to deterrence and punishment.

It may be that these principles do sound more strongly in respect of corporations, but the principle is that your Honour will of course have regard to capacity to pay. But it's not the only factor and your Honour would weigh up on one hand the benefit of reducing a fine having regard to capacity to pay together with, on the other hand, the effect that that would have insofar as this sentence must serve the function of general deterrence

206. In summary, I cannot be satisfied that there is any proper basis upon which Mr Eldridge should be afforded any concession as a result of s 6 of the Fines Act.

The appropriate sentences

207. Determining the appropriate sentence for each offence is a three-step process – step one being to determine a descriptive position of the offending conduct within a range; step two being to undertake an instinctive synthesis of all the objective and subjective factors to arrive at the appropriate penalty; and then, as the third step, to determine the extent to which this penalty should be discounted for the early “guilty” plea.

208. Having considered all the objective factors in this case, I am satisfied that it is appropriate to regard Mr Eldridge’s offending as being appropriately described as of moderate seriousness as proposed by the Prosecutor.

209. I am satisfied, after consideration of these objective factors and Mr Eldridge’s subjective factors, and undertaking the process of instinctive synthesis of all these, I have concluded that the starting penalty for each of the offences should be a fine of $50,000.

Discounts

210. Each of these fines is to be discounted by 30% - this being the amount for the entry of “guilty” pleas and having regard to the other range of mitigating factors to be taken into account. This results in a commencing fine for each offence of $35,000.

Aggregation and totality

211. In an instance such as this, where two offences are charged and they are part of a single course of conduct, the sentencing process involves consideration of a range of elements (discussed above) and then involving a process of instinctive synthesis to derive initial, indicative sentences. Having reached this point, it is necessary then to consider issues of aggregation and totality and to make such an allowance as is appropriate in the circumstances for the pleas of guilty that have been entered by Mr Eldridge to these offences.

212. The overall penalty imposed reflects the totality of the offending conduct. In this regard, I am satisfied that a reduction in the total of the earlier indicated indicative penalties is also warranted as, if I were not to do so, in my assessment the overall total penalty would be disproportionate when viewed against the totality of the offending conduct.

213. As a consequence, I have determined that the fine for Charge 2 should be further reduced to $27,500.

Orders

214. In Matter No 151656 of 2016, the orders of the Court are:

1. Robert Michael Eldridge (the Defendant) is convicted of an offence against s 125(1) of the Environmental Planning and Assessment Act 1979;

2. The Defendant is fined $35,000;

3. The Defendant is ordered to pay the Prosecutor’s costs as agreed or assessed.

215. In Matter No 151599 of 2016, the orders of the Court are:

1. The Defendant is convicted of an offence against s 125(1) of the Environmental Planning and Assessment Act 1979;

2. The Defendant is fined $27,500; and

3. The Defendant is to pay the Prosecutor’s costs as agreed or assessed.

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Decision last updated: 29 March 2017