Bayley v Leichhardt Municipal Council

Cabonne Shire Council v Environment Protection Authority (2001) LGERA 304; CASES CITED: Ristevski v Hurstville City Council [2003] NSWLEC 409

APPELLANT: Mr R Broadhead, Barrister SOLICITORS A J Muscat & Co.

RESPONDENT: Mr T Howard, Barrister SOLICITORS Ritchie and Castellan

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

60004 of 2004 BERNARD RICHARD BAYLEY v LEICHHARDT MUNICIPAL COUNCIL

JUDGMENT CORAM: HIS HONOUR 1 This is an appeal, as of right, pursuant to the Crimes (Local Courts Appeal and Review) Act 2001, s 31 against the sentence imposed on the Appellant (the Defendant) by the Balmain Local Court on 27 August 2004 upon his conviction of an admitted offence against the Environmental Planning and Assessment Act 1979, s 125 (the EP&A Act). 2 The Appellant appeals against the sentence of $27,500 imposed by her Honour Magistrate Seagrave. 3 The EP&A Act, s 125(1) creating the relevant offence, provides as follows: 1) Where any matter or thing is by or under this Act, other than by or under the regulations, directed or forbidden to be done, or where the Minister, the Director-General, a council or any other person is authorised by or under this Act, other than by or under the regulations, to direct any matter or thing to be done, or to forbid any matter or thing to be done, and that matter or thing if so directed to be done remains undone, or if so forbidden to be done is done, a person offending against that direction or prohibition shall be guilty of an offence against this Act. 4 The particulars of the admitted offence were that the Defendant did not do the thing required to be done by an Order made on 28 July 2003, pursuant to the EP&A Act, s 121B (Item 6). That Order ordered the Defendant as owner of premises known as No 141 Catherine Street, Leichhardt, to carry out the works specified in Schedule A to the Order. The Order specified that the Defendant had 60 days from the date of the Order to comply. 5 The works specified in Schedule A were as follows: 1. In accordance with Part D1.6 of the Building Code of Australia (BCA), remove all excess storage and obstructions from all corridors/passageways, stairways, and designated paths of travel to an exit to ensure that there is an unobstructed width of no less than 1m in these areas. This requirement applies to the first floor corridor . 2. Remove the carpet from all stairways, or alternatively install non-slip treads near the edge of all stairway steps. 3. In accordance with Part D2.8 (b) of the BCA, the space below the internal stairway must not be used as a storage area unless the area is enclosed to form a cupboard or other space with: (i) The enclosing walls and ceilings having a Fire Resistance Level of not less than 60/60/60, and (ii) Any access doorway to the enclosed space is to be fitted with a self-closing solid core door not less than 35mm thick.

This area must be made accessible for observation by Council's Officer when the reinspection is being carried out. 4. In accordance with Part D2.16 of the BCA, reinstate the missing balusters and top handrail to the side of the internal stairway, ensuring that the balustrading is at a height of no less than 865mm above the nosings of the stair treads, and any gaps or spacings do not exceed 125mm. 5. In accordance with Part D2.17 of the BCA, install a handrail at a height of 865mm above the 7 stair treads on at least one side of the stairway leading from the first floor corridor to the first floor middle landing. 6. In accordance with Part E1.6 of the BCA, install the following portable fire extinguishers throughout the building: (i) 1 x 3.5kg water type extinguisher on each level (ii) 1 x 3.5 kg dry chemical powder type extinguisher on each level 7. As per Part E1.10 of the BCA, the following provision given the existence of a special fire hazard has been allowed for, taking into consideration the nature of the materials stored and displayed within the building: (i) Installation of hard-wired smoke alarms in every room and corridor/passageway on every floor level of the building in accordance with Specification E2.2a Clause 3 of the BCA and also Australian Standard AS 3786, with all smoke alarms interconnected to provide a common alarm.

All rooms must be made accessible for observation by Council's Officer when the reinspection is being carried out. 8. In accordance with Part E4.2 of the BCA, a level of illumination for safe evacuation in an emergency must be provided by the installation of emergency lighting generally throughout the building to provide coverage in all corridors/passageways, paths of travel to exits and above the stairways. 9. In accordance with Part E4.5 of the BCA, to facilitate way-finding in an evacuation, illuminated exit signs must be installed in the following locations: (i) Above the landing at the top of the first floor stairway, with a directional arrow pointing in the direction of travel down the stairs. (ii) At the bottom of the stairway, on the wall (facing the actual stairway), with a directional arrow pointing in the direction of travel towards the front exit. (iii) Above the final exit door discharging onto Catherine Street. 10. The electrical installation serving the subject premises must be inspected by a suitably qualified electrical contractor and certified accordingly. The certificate shall be in the form of a typed report providing the following minimum requirements: (i) the electrical contractors licence number; (ii) that a visual examination of wiring, fittings and accessories was undertaken and were found to be in sound condition; (iii) that an insulation resistance test was carried out pursuant to Clause 1.5.2 of SAA3000 and was found to be satisfactory (iv) that circuit protection devices used have been examined and found to be satisfactory pursuant to Clause 2.4 of SAA3000. Alternatively, a report from Energy Australia would satisfy the above requirements 11. Submit to Council a Final Fire Safety Certificate for each of the above essential fire safety measures installed within the building. The purpose of the certification is to ensure that each measure will be capable of operating to the design and installation standard, and that it has been assessed by a suitably qualified person to specify the minimum standard of performance that the installed measure will achieve. The appropriate certification must be signed by the owner or chosen agent and submitted to Council. NB: As per Section 168 of the Environmental Planning & Assessment Regulation 2000, please find a Fire Safety Schedule (identified as Schedule B) attached to this Order. 6 Relevantly, the EP&A Act, s 121B(1) provides as follows: (1) An order may be given to a person by: (a) a council, or (b) any other person who exercises functions as a consent authority, except in relation to complying development for which a complying development certificate has been issued, to do or to refrain from doing a thing specified in the following Table if the circumstances specified opposite it in Column 2 of the Table exist and the person comes within the description opposite it in Column 3 of the Table. Column 1 Column 2 Column 3 To do what? In what circumstances? To whom? 6 (a) Provisions for fire safety or fire safety awareness are not adequate to prevent fire, suppress fire or prevent the spread of fire or ensure or promote the safety of persons in the event of fire Owner of premises or, in the case of a place of shared accommodation, the owner or manager To do or refrain from doing such things as are specified in the order so as to ensure or promote adequate fire safety or fire safety awareness (b) Maintenance or use of the premises constitutes a significant fire hazard

7 Section 121B is contained in the EP&A Act, Division 2A of Part 6, which Division contains a comprehensive code of procedural and substantive provisions relating to the giving of various types of statutory enforcement orders, including provision for prior notice of a proposed order (s 121H), the opportunity for representations to be made and considered in respect of a proposed order (ss121I, 121J and 121K), the giving of reasons for making orders (s 121L) specifying a reasonable period for compliance with an order (s 121M) conferring a right of appeal to this Court against an order (s 121ZK).

8 The EP&A Act, s126(1) prescribes a maximum penalty not exceeding 10,000 penalty units ($1.1 million) where no other penalty is expressly imposed (as is the case here), but the EP&A Act, s 127(3) stipulates that the maximum monetary penalty that may be imposed in respect of proceedings brought in the Local Court is 1,000 penalty units (ie $110,000). 9 Accordingly, the penalty of $27,500 imposed by Magistrate Seagrave in the present case is to be appreciated in the light of the prescription of $110,000 as the maximum penalty for the admitted offence. 10 The proceedings brought in the Local Court were commenced on 30 March 2004 some five months after the expiry of the time stipulation contained in the Order. The Defendant's plea of guilty to the charge was entered on 2 August 2004, and the sentence of conviction of the offence as charged and imposition of the fine of $27,500 were ordered on 27 August 2004 after her Honour Magistrate Seagrave had received documentary evidence and had received submissions on sentence from the parties' legal representatives. 11 At the conclusion of these submissions, Magistrate Seagrave delivered her extempore reasons for judgment which, after tracing the history of the relevant fire safety order, issued on the Defendant by the Council continued as follows (and I quote from the certified transcript (Exhibit 1): On 20 November 2003, and at the request of Mr Bayley, a meeting with the council fire officer occurred. Again Mr Bayley took issue with the need for hard wired smoke alarm system. The council was unmoved. The council fire officer noted in his memorandum that as at 20 November 2003 the proposed order had still not been complied with. At this point the council referred the matter to its solicitors. Proceedings were commenced in this Court on 30 March 2004, the first return date being 19 May 2004. Since then the matter has been mentioned in this Court on 16 June, 14 July and 4 August on which date the defendant pleaded guilty. The matter was adjourned until today for sentence. Relevantly as of 2 August 2004 only four items in the schedule to the notice had been complied with completely, one of which was a certificate although council had some reservations about whether the certificate complied completely with the requirement of the notice. Three items of the notice had been partially complied with but further work was required and three items had not been complied with at all. One being a fire building safety certificate. Today this Court is informed that a more recent inspection reveals four items are outstanding and one item is partially completed. It seems to be the defence submission, not challenged by the council, that the outstanding items will ultimately be complied with. This I trust represents an accurate summary of the background to the offence of 3 October 2003. This date being the date as I understand that Mr Bayley was required with the notice of the proposed order. Today Mr Muscat, for the defendant, has provided an explanation for the defendant's delay in attending to the items set out in schedule A of the notice. May I say the explanation is neither satisfactory nor convincing. The background that I have related reveals an ongoing failure, refusal or neglect to comply with an order which, on the evidence before me, was warranted and in all likelihood well overdue. Even the threat of legal proceedings was insufficient to motivate Mr Bayley to comply with the order. Moreover, as at 2 August 2004 some almost five months after the commencement of legal proceedings the order had only been partially complied with. Today the situation is somewhat better, however, there are matters still outstanding. The order is ultimately one concerned with enhancing public safety by improving the fire safety of the premises irrespective of whether it operated one or more days per week. I regard Mr Bayley's breach as serious indeed. Subjectively, Mr Musket informs me that the defendant is a married man with four adult children. He earns a modest income. As I understand it the subject premises are no longer operating as an antique business. I will take these matters into account. As I mentioned the breach is objectively serious because of what could only be described as an unacceptable resistance to the order. The work to be undertaken and the certificates to be provided could have been attended to reasonably quickly, albeit, at some cost to Mr Bayley and with respect to the submissions advanced on Mr Bayley's behalf today, no adequate explanation has been provided for his ongoing non-compliance. There are however some mitigating factors. There is a plea of guilty although it was not entered at the first available opportunity but, nevertheless, it has some utilitarian value and Mr Bayley I gathered in the absence of a submission to the contrary was not previously known to the council. Overall though, and having regard to the objective seriousness of the offence and not overlooking the subjective features, it is a case for a conviction and a not insubstantial fine. I propose reducing the fine I would otherwise have imposed to reflect what I am told are very limited financial circumstances. Stand up please Mr Bayley. YOU ARE CONVICTED. YOU ARE FINED $27,500. YOU ARE TO PAY COURT COSTS OF $63 AND YOU ARE TO PAY PROFESSIONAL COSTS OF $1,800 AND YOU ARE ALLOWED 28 DAYS WITHIN WHICH TO PAY THE FINE AND THE COURT COSTS. 12 The present appeal has been conducted by the parties upon the common basis that the Court's function is to exercise for itself the sentencing discretion upon the basis of a re-hearing on the evidence given in the original proceedings before the Local Court. That this is the true nature of the Court's appellate function is said to arise from the relevant provisions of Part 4 of the Crimes (Local Courts Appeal and Review) Act 2001 and in particular, the following provisions: 37 Appeals to be by way of rehearing on the transcripts of evidence (1) An appeal is to be dealt with by way of rehearing on the basis of certified transcripts of evidence given in the original Local Court proceedings, except as provided by section 38. (2) Fresh evidence may be given, but only by leave of the Land and Environment Court which may be granted only if the Court is satisfied that it is in the interests of justice that the fresh evidence be given. (3) The parties to an appeal are each entitled to be provided with one free copy of the certified transcripts of evidence relevant to the appeal and, if fresh evidence is given, one free copy of the transcript of the fresh evidence 39 Determination of Appeals (2) The Land and Environment Court may determine an appeal against sentence: (a) by setting aside the sentence, or (b) by varying the sentence, or (c) by dismissing the appeal. 49 Miscellaneous powers (2) In determining an appeal, the Land and Environment Court may exercise any function that the original Local Court could have exercised in the original Local Court proceedings. 13 In addition to the foregoing provisions, regard should be had to s 65 in Part 6 of the Act (containing provisions "common to all appeals" ie appeals from Local Courts to the Supreme Court, this Court and the District Court) which provide as follows 65 Appeal not to succeed on narrow technical grounds (1) A conviction, order or sentence is not to be set aside on an appeal merely because of: (a) an omission or mistake in the form of the conviction or order, or (b) an error in law in the order or sentence, if it appears to the appeal court that there were sufficient grounds before the Local Court to have authorised a conviction, order or sentence free from the omission, mistake or error.

(2) In such a case, the appeal court: (a) may amend the conviction, order or sentence and determine the appeal as if the omission, mistake or error did not exist, or (b) may remit the matter to the Local Court to make the conviction or order, or impose the sentence, authorised by law and to amend the conviction, order or sentence accordingly. 14 The parties' common understanding of the true nature of the Court's appellate function under Part 4 of the Crimes (Local Courts Appeal and Review) Act 2001 accords with the approach adopted by Talbot J in Ristevski v Hurstville City Council ([2003] NSWLEC 409 and I am content to proceed conformably with the parties' joint submission that this Court's function is not to review any error in the sentence of the Local Court (cf Cabonne Shire Council v Environment Protection Authority (2001) LGERA 304 at 306 in relation to the function of the Court of Criminal Appeal on an appeal from this Court imposing a sentence on criminal conviction) but it is to re-exercise for itself the relevant discretion on sentence. 15 The appropriate penalty to be imposed for the admitted offence in the present case is one that has regard to the following considerations - (i) the maximum penalty provided; (ii) the objective gravity of the offence; (iii) the subjective culpability of the Defendant; and (iv) relevant mitigating factors being an encapsulation of the more detailed considerations enumerated in ss 21A and 22 of Crimes (Sentencing Procedure) Act 1999. 16 The offence created by the EP&A Act, s 125(1) covers a diverse and undifferentiated range of acts or omissions in respect of the several requirements of the Act, the potential gravity of which spans from trifling to most serious offences. 17 Failure to comply with a statutory enforcement order made under s 121B (such as the fire safety order applicable in the present case) is enforceable both civilly and criminally: vide Divisions 3 and 4 respectively of Part 6 of the EP&A Act. 18 In addition to civil enforcement, the code for statutory enforcement orders provided by Division 2A or Part 6 includes specific power in s 121ZJ for the person giving the order to carry out the required works in default of compliance by the person served with the statutory order. Moreover, where a fire safety order such as that given in the present case has not been complied with, s 121B empowers the Council to serve supplementary orders requiring either the cessation or evacuation of the premises (Item 10 of the Table) or prohibiting any person from entering the premises (Item 11 of the Table). 19 It will thus be readily appreciated the EP&A Act provides a comprehensive panoply of powers (both civil and criminal) to achieve compliance with the several requirements of the Act. However, it may be noted that where a civil remedy is granted, criminal conviction in respect of the same act or omission is expressly excluded by the EP&A Act, s 127(7) which provides as follows: (7) A person shall not be convicted of an offence against this Act or the regulations where the matter constituting the offence is, at the date upon which the conviction would, but for this subsection, be made: (a) the subject of proceedings under section 123, which proceedings have not been concluded, or (b) the subject of an order made under section 124. 20 The availability of civil remedies to enforce a statutory enforcement order, in my judgment, inevitably exerts some bearing upon the proper understanding of the objective gravity of an offence under the EP&A Act, s 125 constituted by a failure to comply with a statutory enforcement order (including a fire safety order). 21 Moreover, the undisputed facts of the present case indicate that the criminal liability created by s 125 was attracted because the requirements of the statutory enforcement order were not complied with by the Defendant within the period of 60 days stipulated in the Order. The relevant offence is complete immediately upon the expiration of the stipulated period for compliance with the requirements of the Order if the things ordered to be done remain undone at that point of time. Accordingly, what transpires after that time forms no part of the relevant offence and is essentially irrelevant to the offence and the liability imposed for it. 22 Moreover, the EP&A Act, s 125(5) sustains the liability thereupon created notwithstanding the expiry of the stipulated period. 23 The manner in which the Council prosecuted the present charge by having the proceedings adjourned on a number of occasions following their institution "to facilitate compliance" with the statutory enforcement order (see Transcript at p 1) betrays a failure to appreciate the essential feature of the offence. It also indicates that the Council resorted to the criminal process in order to enforce compliance with the statutory order which is more the objective of civil enforcement under the EP&A Act than the objective of criminal enforcement which is to punish offenders and to deter potential offenders. 24 These particular features of the present case, in my judgment, have considerable relevance in evaluating the objective gravity of the admitted offence and the Defendant's subjective culpability in its commission in order to determine the appropriate sentence. 25 In respect of the Defendant's subjective culpability, the undisputed facts indicate that the Defendant was at all material times in regular contact with the Council, making representations in respect of fire safety requirements and was throughout the pendency of the criminal proceedings actively involved in seeking to comply with the requirements of the Order. It may be readily accepted that his compliance was delayed but it is clear that the Defendant was alive to his responsibilities and was not shirking them, and was seeking to discharge them over a protracted period of negotiation with the Council, which included certain changes being made by the Council in response to the Defendant's representations, resulting in the revocation of an earlier fire safety order and its substitution by the present Order. 26 Moreover, I think significant weight (both in terms of considering objective gravity and subjective culpability) attaches to the undisputed fact that the Defendant effectively stopped using the premises as a retail antique shop from about the time that the statutory order was given in July 2003. The significance of this fact is highlighted once it is appreciated that almost all of the requirements of the Order derived from the requirements of the Building Code of Australia providing for the protection of occupants of buildings. These requirements of the Building Code automatically apply to newly constructed buildings but not to existing or old buildings. They are only made selectively applicable to old buildings (such as occurred in the present case) by the making of an order under the EP&A Act, s 121B in circumstances where the EP&A Act provides a right of appeal against the order on the merits. 27 The virtual elimination of all forms of human occupancy of the Defendant's premises throughout the history of the relevant statutory order means that the consequences of the delayed compliance with the requirements of the order involved little or no threat to humans. 28 When full weight is given to these matters, that I have referred to (but which are not mentioned in the reasons for judgment of Magistrate Seagrave), I think that the objective gravity of the admitted offence within the overall spectrum of potential gravity of offences against the EP&A Act, s 125 is significantly lessened. When this factor is taken into consideration, together with the recognised mitigating factors, including the entry of the plea of guilty, and the fact that this was the Defendant's first offence, I am of the opinion that a considerably more modest fine is called for in this case, than the fine that was imposed by the Local Court. 29 Accordingly, I would make the following orders:- 1. Appeal allowed. 2. Set aside the sentence of the Balmain Local Court imposing a fine of $27,500. 3. Impose a penalty of $15,000 for the admitted offence. 4. No order for costs on the appeal. 5. Exhibits (other than Exhibit 1) be returned.

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