Bankstown City Council v Taouk Constructions Pty Ltd

Introduction 1 HIS HONOUR: The defendant has pleaded guilty to an offence under s 125 of the Environmental Planning and Assessment Act 1979 (NSW). He carried out development, being the erection of a building, on the land at lot 26 in section 1 of deposited plan 5541, and lots A and B in deposited plan 380621 at 3-5 Fetherstone Street, Bankstown otherwise than in accordance with a development consent, contrary to s 76(A)(1) of the Environmental Planning and Assessment Act. 2 For the purpose of today's proceedings, the parties have reached agreement as to the relevant facts. Those facts disclose that the defendant is a company registered in New South Wales and is the owner of the relevant land. On or about 21 September 1999 a development application was submitted to Bankstown City Council ("the Council") seeking consent for "demolition of existing building, combined commercial/ residential development with basement parking" consisting of twelve floors. 3 A notice of determination of the development application was issued by the Council on 13 September 2000, wherein consent was granted for: "demolition of existing buildings and construction of a mixed commercial/residential development comprising three basement levels of carparking, two shops and carparking on ground floor level, three offices, and carparking on the first floor podium level, and ten floors of 56 residential home units." 4 The consent included a condition which required that the development take place in accordance with the approved plans. The approved plans provided for three residential units on the top level, being level 11 of the building, with substantial terraced areas. 5 On 19 April 2001 an application to modify the consent pursuant to s 96 of the Environmental Planning and Assessment Act was lodged with the Council. The variation sought included the reduction of residential parking from 1.5 spaces per unit to 1 space per unit. Approval was granted for the modification. 6 On 10 December 2002 a further application pursuant to s 96 was made which sought approval to provide an addition to the southern portion of level 11 of the building by providing three additional residential units. It also sought approval for an additional third bedroom to the three approved units on level 11 and for an increase in car parking. 7 There were difficulties in the processing of the application arising from the fact that the building is a tall building within the range of influence of aircraft at Bankstown Airport. Difficulties were created because the plans provided for a terrace on the roof of the accommodation on level 11 which extended the height of the building beyond that which had originally been approved. There were some other matters which required consideration. 8 The defendant, through his agent, took steps to have the plans submitted to Bankstown Airport Limited, and attended to other matters of concern to the Council. The facts disclose some difficulties in consideration of the application by Bankstown Airport Limited arising from apparent inadequacies in its records in relation to the approval of the original development. 9 In the meantime, the defendant had proceeded to erect walls and ceilings forming the three additional units on level 11 of the building. It is agreed that this work took place between 14 April 2003 and 11 July 2003 in circumstances where the application to modify the development consent, which would have authorised the work, had not been approved. 10 Steps were taken by the Council from June to require the construction to conform to the law. Ultimately the s 96 approval was forthcoming. It was approved by resolution of the Council on 12 August 2003, but subject to a rescission motion lodged prior to the close of the Council meeting on that day. Ultimately that rescission motion was defeated and the Council resolved to grant the s 96 approval at its meeting on 23 September 2003. 11 The maximum penalty for this offence is the sum of $1,100,000. The prosecutor submits that in determining the appropriate penalty I should have regard to the fact that the defendant is an experienced builder who is familiar with the legal obligations that fall upon those engaged in professional development. The company has been constructing developments in parts of Sydney for in excess of thirty years. 12 It is submitted, and is apparent from the fact that a s 96 application was lodged, that the defendant was well aware of its obligations in relation to obtaining consent before carrying out development. 13 Accordingly, the offence should be viewed as a deliberate breach of the law. 14 The prosecutor also points to the fact that in an affidavit from the managing director of the defendant, Mr Taouk, he concedes that he has no excuse for the commission of the offence other than: "that it was a commercially compelling matter for me, on behalf of my company, to complete the construction bearing in mind that the matter had been brought to the attention of the Prosecutor as long ago as December 2002 and that there had been no conclusion forthcoming; hence the carrying out of the work in the relevant period in question." 15 In these circumstances, it is submitted that it is appropriate to conclude that the matter was one of financial gain for the defendant company. The Council also submits that in these circumstances, the penalty which should be imposed should be sufficient to ensure that others are deterred from deliberately breaching the law for their personal advantage. 16 The defendant's counsel points to the fact that the company has no prior history of any breach of planning or other relevant laws. The company has pleaded guilty at the first opportunity and, through the affidavit of Mr Taouk, expresses real contrition and submits I should accept that the prospects of any re-offence are low. Counsel also points to the fact that the Council ultimately granted consent for the units which had been illegally constructed. 17 Accordingly, although an offence was committed, it is submitted that there are no adverse environmental consequences which flow from its commission. 18 I am satisfied that the offence should be considered to be serious. There are, of necessity, under the structure of the planning law provided by Parliament, steps which must be taken before work can lawfully be carried out on any land. Those steps will, by their nature, sometimes involve the preparation of complex documentation and consideration by a Council and other relevant authorities of whether or not approval should be granted. 19 Inevitably, the process of consideration of an application will take some time. That time, although efforts will be made by relevant authorities to minimise it, will nevertheless very often bring a financial disadvantage to the applicant for consent. Such delays must be accepted by anyone who seeks to develop in New South Wales. 20 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. 21 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. 22 In determining the penalty which I should impose in this case I have had regard to those matters. However, it is correct, as the defendant's counsel points out, that the company has an unblemished record and pleaded guilty to the offence at the first opportunity. 23 I accept, having regard to the affidavit of Mr Taouk, that it is unlikely that the company will re-offend. I am also conscious of the fact that ultimately, as has been shown by the grant of the s 96 approval, the work which was carried out has not caused any detriment to the environment. 24 However, in my opinion, the necessity to ensure that all persons in the community, but particularly those who are engaged in professional development, are reminded of their obligations, requires that I impose a penalty which should not merely be nominal. 25 Having regard to all of the matters to which I have adverted, I am satisfied that a penalty in the sum of $30,000 should be imposed. 26 Accordingly, the orders I make are: