MONOGRAPH 40 volume 1

101 Research monograph 40 2. Findings A fine is often converted by the LEC to an environmental services payment utilising the provisions of s 250(1)(e) of the POEO Act . As detailed earlier, the average environmental services payment is higher than the average fine for a single pollute waters offence. Figure 10 shows the corresponding monetary costs to pollute waters offenders reflecting the sum of the environmental services payment order and the prosecutor’s costs (where known). Once again, a breakdown is provided by sentencing regime. 569 In the period when the CW Act was operating, the only estimate for an environmental services payment comes from EPA v Brucic . 570 In this case, the LEC ordered rectification works estimated in the range of $7,000 to $10,000. A $6,000 fine was also ordered. The reasonable costs of the prosecutor were to be agreed or assessed; a broad estimate of prosecutor’s costs under the CW Act suggests that another $9,000 could have been added to the total amount paid by this offender. 571 In the period when the POEO Act operated under maximum penalties lower than those currently in place, the average environmental services payment was $30,000 with prosecutor’s costs adding, on average, another $22,000 to the total payment ordered on the offender. The POEO Act , operating currently with its significantly higher penalties for water pollution offences, recorded a mean environmental services payment of $74,000 with prosecutor’s costs adding, on average, another $68,000. Thus, the average total expense incurred by an offender for a single pollute waters offence under the present sentencing regime, based on cases before the LEC up to 2015 where an environmental services payment was ordered in lieu of a fine, was just over $142,000. With the repeal of the CW Act and its replacement by the first version of the POEO Act , the average environmental services payment increased by almost 190% with mean prosecution also up by almost 250%. With the latest version of the POEO Act (and its substantially raised maximum penalties), the average environmental services payment continued to rise by around 250%, and prosecution costs, on average, more than tripled. Over the 15-year study period, the average environmental services payment has increased by an estimated 462%, and prosecutor’s costs have increased, on average, by over 700%. 572 Therefore, the total pecuniary payment imposed on an offender convicted of a single pollute waters offence, where the fine was commuted into environmental services payment increased, on average, from an estimated $25,000 to about $142,000 — a rise of more than 560%. 2.4.2 Carry out development without consent/not in accordance with consent Where a local environment plan or State environmental planning policy provides that a certain type of development is permissible with consent, 573 approval must be sought and obtained to carry out any such development. It is an offence to do otherwise (s 76A). The maximum penalty for a s 76A offence, applicable to both a corporate offender and an individual offender, during the 569 Whereas it was possible to provide estimates of the average fine amount for a single pollute waters offence under each sentencing regime in cases where the prosecutor’s costs were not provided, this was not possible where an environmental services payment was ordered in lieu of a fine. There were simply too few (or no relevant) cases to allow such estimations. 570 [2000] NSWLEC 213. The estimated rectification costs was not in lieu of a fine; a fine was also ordered. The two amounts were combined to better reflect the full quantum of the penalty. 571 For the solitary pollute waters offence under the CW Act where an environmental services order was made, the prosecutor’s costs was not specified. All disclosed prosecutor’s costs for CW Act pollute waters were used to create a mean estimate of prosecutor’s costs under that Act for this offence. 572 ibid. 573 Under the EPA Act , two additional broad legislative categories relate to development applications and approvals: development that does not need consent (s 76); and, development that is prohibited (s 76B).