MONOGRAPH 40 volume 1

85 Research monograph 40 2. Findings It should be noted, where the court assessed that there was no environmental harm, that unlawful activity was detected, charged and prosecuted. However, unlike, the potential for serious environmental harm associated with some environmental protection/pollution offences, breaches of environmental planning laws are “tame” by comparison, and rarely pose a significant threat to the natural environment (or to human life), involving more a technical breach of a planning law or regulation. 496 State of mind Although mens rea is not an element of many environmental planning offences due to their strict liability, 497 the state of mind of an offender at the time of the commission of the offence, nonetheless, remains as a relevant consideration for the LEC. 498 This is because “a strict liability offence that is committed intentionally, negligently or recklessly will be objectively more serious than one committed inadvertently”. 499 The elements of a “culpable” mind extend to ignoring and disregarding environmental planning laws and regulations: A large measure of premeditation will make the offence more serious if it is committed on the spur of the moment, just as failure to heed advice or warnings, including from regulatory authorities, will be an aggravating feature. 500 Of all the environmental planning offences dealt with by the LEC in the study period, almost 58% committed by “ordinary Joe” individuals and 56% committed by corporations were considered by the LEC to be “intentional” in nature. On the other hand, only one-third (34%) of planning offences committed by small business owners were deemed “intentional”. Negligence contributed to a substantial proportion of environmental planning offences committed by small business owners (37%). Negligence did not feature as prominently in the environmental planning offences committed by “ordinary Joe” individuals (12%) or corporations (16%). Recklessness did not feature heavily in the offence profile of corporations (9%), but was slightly more prominent in the planning offences committed by small business owners (17%) and “ordinary Joe” individual offenders (18%). Financial advantage As with many environmental protection offences, financial advantage may be the primary motivation underlying unlawful development. In the course of operating a building business or undertaking development work, a diverse range of actions taken by the builder or developer may constitute a way of saving money or avoiding costs. Actions such as not submitting a development application, or proceeding with work before consent is given, or not undertaking an environmental assessment, may represent a simple “technical” breach of an environmental planning law, but the reason behind the unlawful conduct is likely to be pecuniary in its nature. 501 Deliberate and calculated attempts at 496 There are numerous cases before the LEC where the offence was no more than a technical breach of an environmental planning law or regulation. The court often recognises, as does the prosecutor and regulatory authority, that there is nothing “prohibited” about the (completed) building work, and that development consent would have been given had the offender proceeded through the approved planning and development assessment process. In such cases, the objective seriousness is often assessed as “low”, and the level of environmental harm recorded as “none”. For example, in Council of the Municipality of Kiama v Pacific Real Estate (Warilla) Pty Ltd [2009] NSWLEC 191, it was noted at [56] that “no environmental harm had resulted and … all of the unauthorised works were subsequently approved by the council”. 497 B Preston, above n 69, p 147, fn 44. The footnote, in part, reads: “For example, offences against s 125(1) of the Environmental Planning and Assessment Act 1979 (NSW) and tier 2 offences under the Protection of the Environment Operations Act 1997 (NSW)” [are strict liability offences]. 498 B Preston, ibid, pp 147–148. 499 Wingecarribee Shire Council v O’Shanassy (No 6) [2015] NSWLEC 138 per Pepper J at [172]. 500 B Preston, above n 69, p 148. 501 For example, in Council of the Municipality of Kiama v Pacific Real Estate (Warilla) Pty Ltd [2009] NSWLEC 191 per Pepper J at [82]: “[i]t was not a matter of controversy that a reason for the commission of the offences was commercial motivation”.