MONOGRAPH 40 volume 1

87 Research monograph 40 2. Findings reducing the administrative and operational costs associated with lawful development that follows due process has been noted by the LEC. 502 Offenders should not profit from a failure to follow the legally-binding requirements for lawful development as regulated by local, regional and State environmental planning instruments. 503 As noted by McClellan (then) CJ of the LEC, in Bankstown City Council v Taouk Constructions Pty Ltd : It is a very serious matter particularly when an experienced developer decides, for its own financial gain, to proceed to construct part or all of a development knowing that consent is required and also knowing that that consent has not been obtained. If many people were to take that course, the system of development control which has existed in this State now for more than fifty years would be seriously undermined to the disadvantage of the whole community. … Those who engage in development as their profession and for financial gain must, above all, be those members of the community who obey the law. 504 The basic tenet for the LEC is that offenders, including those responsible for environmental planning offences, should not profit from their crimes: The carrying out of an offence to make a profit, or to save incurring an expense or to avoid the cost of obtaining and implementing a statutory permission, such as a development consent or environment protection licence increases the seriousness of the crime. 505 Overall, almost 23% of environmental planning offences within the period examined were identified as being committed by the offender with the intent to financially benefit from the act. A substantial proportion of corporations (35%) and small business owners (26%) were identified as having been motivated by the prospect of monetary profit or other financial gain. Financial advantage was not as key a motive in the environmental planning offences of “ordinary Joe” individuals (10%). Foreseeability of harm As with s 241(1)(c) of the POEO Act , the extent to which the person who committed the offence could reasonably have foreseen the harm caused, or likely to be caused, to the environment by the commission of the offence, should be considered in sentencing of offenders for other offences, including those crimes against environmental planning laws. For example, development control plans provide both legislative guidance — and warning of the potential for harm — in the context of environmental planning and, more specifically, land usage and permissible development. 506 The LEC considers to be most serious, the flagrant disregard of advice and warnings where provided by authorities regulating, monitoring and policing legal standards of land use and development. 507 In particular, a failure to heed the advice afforded by independent environmental consultants providing professional environmental assessments, forewarning the individual or corporation of the environmental consequences of their proposed actions, increases 502 R Pepper, above n 493, p 17, lists the act of avoiding “the cost of obtaining a licence or consent” as an example of “commercially motivated” offending against environmental planning laws that is “relevant to penalty”. Similarly, in Fairfield City Council v Cavasinni Constructions Pty Ltd [2005] NSWLEC 187, Talbot J at [22] stated that “[a]ny delay by the Council in issuing an appropriate certificate is not an excuse [for the commission of the offence]”. The motive for carrying out the work illegally, in that particular case, was identified as “entirely one of self interest in economic terms”. 503 Part 3 of the Environmental Planning and Assessment Act 1979 defines the various “environmental planning instruments”. 504 [2004] NSWLEC 402 at [20]–[21]. 505 B Preston, above n 69, p 148. In Garrett v Williams (2006) 160 LGERA 115; [2006] NSWLEC 785 per Preston CJ of the LEC at [126]: the destruction of identified endangered trees and vegetation “was designed by the defendant to remove a real impediment to his declared intention of carrying out subdivision and development of the land for profit”. 506 EPA Act , Div 6, s 74BA. 507 Conventional forms of direct regulation are also referred to as “command and control” regulations, which refers to the prescriptive nature of the regulation (the command) supported by the imposition of some negative sanction (the control). “Command and control” regulations are seen as the “staple diet of many politicians” and have been designed and introduced “to prohibit or restrict environmentally harmful activities”: Gunningham and Grabosky, above n 287, pp 4–5.