For damage to adjoining properties to be treated as an aggravating factor in sentencing for failures to comply with s 81A(2) of the EPA Act or conditions of development consent, the prosecution must establish beyond reasonable doubt that the specific regulatory failures (not merely the building work itself) caused the damage. Where prior lawful work may have caused the damage, and there is no evidence of what regulatory compliance would have revealed or prevented, the causal connection is not established. The question whether the De Simoni principle measures 'more serious offence' by maximum penalty or objective seriousness remains unresolved.
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