To establish criminal liability under s 76A(1) and s 125(1) of the Environmental Planning and Assessment Act 1979 (NSW), the prosecution must prove the defendant personally carried out the unlawful development or was vicariously liable for the conduct of another who did so. Mere ownership of the land, expressions of intention to carry out works, or general involvement in a development project are insufficient. Where the evidence is circumstantial, guilt must be the only rational inference. The question whether a subsequent s 96 modification of consent can defeat a prosecution for prior non-compliance was left open.
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