Environmental Planning and Assessment Act 1979 (NSW) ss 4.2(1)(b)
development otherwise than in accordance with conditions of development consent
strict liability offence
Quick Take
1Where a prosecutor charges related conduct as separate offences under s 4.2(1)(b) of the EP&A Act, the court must determine an appropriate sentence for each charge individually; a 'grouping' approach that treats multiple charges as indistinguishable for sentencing purposes is inappropriate, though overlap in criminality may be addressed through the totality principle.
2Unlike the POEO Act (s 169C), the EP&A Act contains no statutory deeming provision for attributing a subcontractor's state of mind to a corporate defendant; absent identification of an applicable common law principle of attribution, the mental state of an independent contractor cannot be used to increase the objective seriousness of the corporate offender's conduct.
3Where expert evidence of environmental harm is expressed in a compendious manner attributing consequences to multiple offences collectively without distinguishing the harm caused by each individual offence, the prosecutor fails to establish harm to the requisite criminal standard for any individual charge.
