2 The charge against the defendant is that it committed an offence under s 125 of the Environmental Planning and Assessment Act 1979 (EPA Act) because it carried out development contrary to s 76A on land known as 93 - 95 Burwood Road, Enfield in that the development was not carried out in accordance with a development consent granted by Burwood Council on 19 October 2004.
3 The parties have agreed on the following facts for the purpose of this stay application:
(1) On 5 September 2006, D Brooks, an officer of Burwood Council, issued the defendant with a penalty notice with respect to the offence which is now before the Court. The penalty notice required the defendant to pay a penalty in the sum of $600 (or elect to have the allegation determined by a court).
(2) The defendant did not elect to have the allegation the subject of the penalty notice determined by a court, but nor did the defendant pay the penalty notice.
(3) On 6 December 2006, the State Debt Recovery Office issued a penalty notice enforcement order to the defendant in respect of the alleged offence. It required payment of the amount of $1,250, comprising the $600 penalty imposed under the penalty notice plus $600 in payment of a separate penalty notice which is not relevant, plus $50 in additional enforcement costs.
(4) On 8 February 2007, Houston Dearn O'Connor, solicitors acting for Burwood Council, wrote to the Infringement Processing Bureau, inter alia, requesting the withdrawal of the penalty notice on the basis that the council had instructed that firm to commence proceedings in the Land and Environment Court (solicitors' letter).
(5) As at 8 February 2007, the defendant had not paid to the State Debt Recovery Office the sum required to be paid under the penalty notice enforcement order.
(6) On 2 March 2007, Justice Pain signed the Class 5 Order in relation to these proceedings and the Summons was issued.
(7) On 14 March 2007, the State Debt Recovery Office wrote to Ms Maria Likenbagh at the PO Box address of Houston Dearn O'Connor informing her that, in respect of the penalty notice and penalty notice enforcement order, enforcement action had ceased and the penalty notice was "no actioned".
(8) On 25 May 2007, the defendant entered a plea of guilty to the charge.
(9) On 7 June 2007, after the defendant's legal representatives became aware of the fact that the offence had been the subject of a penalty notice and penalty notice enforcement order, the defendant paid, or purported to pay, the penalty notice enforcement order in the sum of $1,250. Payment was accepted by the State Debt Recovery Office and a receipt was provided.
4 Part 3 of the Fines Act 1996 (ss 19 to 56) provides an alternative to a prosecution by way of summary criminal proceedings. It creates a procedure for the issuing of penalty notices pursuant to which a range of summary offences may be dealt with by way of imposition of a civil penalty which, unless disputed by the recipient of the notice, may then be enforced as a debt to the State. Unless a person who receives a penalty notice elects to have the matter dealt with by a court in summary proceedings, the matter remains in the civil enforcement stream. There are a range of enforcement measures if there is default in payment, including measures which tend to be associated with criminal conduct, such as the imposition of a community services order or imprisonment. In my opinion, the legislative purpose, as the defendant submitted, is to create a system for dealing with such matters, which is an alternative to prosecution by way of summary proceedings.