Burwood Council v Matthews

Land and Environment Court (NSW)|2013-02-22|Before: Pepper J

Mr Matthews Fails to Comply with a Stop Work Order 1The defendant in these proceedings, Mr Eric Matthews, was married in June of 2011. In October 2011 he purchased what he intended to be his family home at auction at 2 Fountain Avenue, Croydon Park, NSW 2133 ("the premises"). Settlement occurred on 17 January 2012. 2Shortly after settlement, on 27 January 2012, Mr Matthews obtained a building report from Structural Design Solutions Consulting Engineers following a visual inspection of the property. The purpose of the inspection was to examine the condition of the existing steel-framed front carport, the back garage roof and the entry porch, in order to assess their structural stability. 3It was the opinion of the engineers that the existing front carport ought to be removed and replaced with a new steel carport awning; that the rear garage roof was structurally inadequate and required rectification works to be carried out; that the front entry porch was inadequate to take any load from proposed new roof sheeting (the current roof sheeting was leaking); and that additional timber rafters in accordance with AS164 were required to make it structurally sound. 4As a consequence of this report, Mr Matthews went about effecting these suggested works, (although some minor building works were commenced by him beforehand on 18 January 2012). 5Regrettably, the construction undertaken by Mr Matthews required development consent, that had not been obtained by him. As a consequence, a s 121B Order under the Environmental Planning and Assessment Act 1979 ("the EPAA") (or an Order 19) was issued to Mr Matthews by Burwood Council ("the council") directing him to immediately stop all demolition and construction work at the premises. 6Even more regrettably for Mr Matthews, he failed to comply with the s 121B Order and continued to undertake building work at the premises. These works consisted of the erection of a garage; the demolition of the front carport; and the stripping of the cladding of the original front entry porch and awning. In addition, a new door was installed, there were alterations to window openings, the inside of the dwelling was stripped (bathroom, laundry fittings and floor coverings were removed) and approximately 10 trees located in the front and rear yards of the premises were removed. 7According to Mr Matthews, upon receipt of the s 121B Order he engaged a town planner, an architect and a solicitor to give him advice in respect of the building works and to assist him in his dealings with the council. This was sought in order to rectify the predicament in which he found himself. 8Thus on 7 March 2012, a letter was sent to the General Manager of the council from Kerry Gordon of Kerry Gordon Planning Services Pty Ltd. This letter indicated that in the opinion of the writer the wording of the s 121B Order "is such that it cannot be complied with". Furthermore, it was contended that the majority of the works undertaken to the rear garage, the carpet and the dwelling constituted exempt development. The letter went on to state that Mr Matthews was unaware that the works carried out on the property required approval, however, in order to avoid costly and protracted legal proceedings, a schedule of works was proposed in order to rectify the alleged unlawful construction, at the completion of which, Mr Matthews would apply for a building certificate from the council. 9Matters came to a head when, on 13 June 2012, it came to the attention of the council that the premises were in the process of being sold by Mr Matthews, with the unlawful works having been completed and included as part of the property. 10At the time the premises were on the market no development application had been submitted for the building works, no development consent was in force, no construction certificate had been issued, no critical stage inspection had been undertaken, no occupation certificate had been issued, and the development was still the subject of the s 121B Order. 11The property was subsequently withdrawn from sale. On 7 August 2012 the council commenced Class 5 proceedings against Mr Matthews in respect of both the unauthorised construction and the failure to comply with the s 121B Order. 12On 19 October 2012 Mr Matthews entered a plea of guilty in respect of both charges. On the same day, the council issued a building certificate in relation to all of the works that had been undertaken at the premises. 13Mr Matthews is before the Court for the purpose of determining the appropriate sentence for the commission of the offences with which he has been charged. Having regard to the subjective and objective factors relevant to these proceedings, Mr Matthews is fined $20,100 in respect of both offences and is ordered to pay the council's costs fixed in the sum of $9,000 (incl of GST).

The Charges 14The charges are as follows (referred to as "the first offence" and "the second offence" respectively): Charge 1 Between 14 February 2012 and 13 June 2012, at Croydon Park in the State of New South Wales, contrary to Section 125(1) of the Environmental Planning and Assessment Act ("the Act"), Eric Matthews, being a person who had been given an Order 19 to the Table set out in Section 121B of the Act, offended against a direction in the Order 19 in that by the Order 19, Eric Matthews was directed to stop all demolition and construction work at 2 Fountain Ave Croydon Park NSW 2133; whereas in contravention of that direction Eric Matthews did not stop all demolition and construction work at 2 Fountain Ave Croydon Park NSW 2133. Charge 2 Between 17 January 2012 and 13 June 2012, at Croydon Park in the State of New South Wales, contrary to Section 125(1) of the Environmental Planning and Assessment Act ("the Act"), Eric Matthews carried out development on land located at 2 Fountain Ave Croydon Park NSW 2133, the said development being development that in accordance with Section 76A of the Act and in accordance with the Environmental Planning Instrument needs development consent; whereas such development consent had not been obtained and was not at the time in force.

Evidence of the Council 15The council relied on a statement of agreed facts and an affidavit of Mr Nelson Silva sworn 1 August 2012. 16Mr Silva is the area building surveyor employed by the council. Mr Silva deposed to the fact that pursuant to the relevant planning instruments the building works required development consent and that none had been obtained by Mr Matthews. Mr Silva also deposed to the fact that the unauthorised development did not comply with the Burwood Development Control Plan.

Evidence of Mr Matthews 17Contrary to the orders of the Court made on 19 October 2012, Mr Matthews did not file and serve any evidence by 1 February 2013. Nor did he file and serve any written submissions on penalty as required by 15 February 2013. Mr Thomas, counsel appearing for Mr Matthews, indicated to the Court that the failure to comply with these Court orders was entirely his fault. It was, in his words, "an oversight". 18Plainly this conduct is unacceptable. The Court told Mr Thomas in fairly robust terms that had an adjournment been necessary to permit, as a matter of fairness to Mr Matthews, evidence to be adduced on behalf of the defendant, the Court would have had no hesitation in ordering that the costs of the adjournment be paid personally by Mr Thomas. 19As it transpired, the "oversight" was able to be remedied, with no prejudice to the council, by the Court granting leave to Mr Matthews to adduce oral evidence. This evidence was able to be met by the council without the need for an adjournment. 20Mr Matthews somewhat inconsistently told the Court that while he accepted that the commission of the offences was deliberate, that is to say, not unintentional, the unlawful building works were undertaken against a background of confusion by him as to the lawfulness of the s 121B Order and the receipt of conflicting advice as to whether some or all of the construction actually required development consent. In this regard, Mr Matthews relied upon the letter from Kerry Gordon to the council. 21But Mr Matthews also conceded during his oral evidence that he understood the terms of the s 121B Order, namely, that he was required to cease all building works immediately, which he did not do. 22On balance, I find that whatever confusion may have existed prior to and at the time the s 121B Order was issued, Mr Matthews understood the meaning of the Order and understood that it required him to immediately stop any further development at the premises. This he did not do. And it is for this reason that it is appropriate to characterise his state of mind during the commission of the first offence as deliberate. 23Reinforcing this conclusion is Mr Matthews' evidence that at the time the s 121B Order was issued, he was running out of funds with which to complete the building works and that, in its then state, the house was uninhabitable. It was for this reason that he ignored the s 121B Order. 24In relation to the second offence, however, the position is more equivocal. I do not find on Mr Matthews' unchallenged evidence that he committed the offence deliberately. This is because, first, he stated that he was initially unaware that the works required consent, and second, he stated that he was later advised that the construction was exempt development. I return to this later in the judgment. 25Mr Matthews states that he is on the verge of bankruptcy. He owes approximately $1.046 million on the property and has monthly mortgage repayments of approximately $4,600. His savings comprise approximately $27,000 and he is currently unemployed with no income. He has outstanding consultancy and legal bills. Mr Matthews further stated that he has been unemployed for 1 ½ years and, as a consequence, has been driving taxis earning approximately $150 per week. Previously Mr Matthews had been employed as a management consultant earning approximately $80,000 per year. Moreover, Ms Sadhika Sharma has lent him $25,000 in order to complete the building works and to assist him with the repayment of his mortgage. To date this loan remains outstanding. Mr Matthews stated that he intends to sell the property because he cannot afford the mortgage repayments. 26The council declined the opportunity to adjourn the proceedings in order to challenge Mr Matthews' evidence in relation to his financial capacity. 27Finally, evidence was put before the Court that the immediate neighbours adjacent to the property do not object to the unauthorised building works. On the contrary, the evidence discloses that they appreciate the improved aesthetics occasioned by the development and that, in their view, it has generally enhanced the visual amenity of the street.

Sentencing Considerations 28The sentence imposed by the Court should reflect both the objective gravity of the offences and the subjective circumstances of Mr Matthews. I am required to consider, and have considered, the relevant factors in s 21A of the Crimes (Sentencing Procedure) Act 1999 ("the CSPA") as well as general principles of sentencing. 29The purposes for which I may impose a sentence are those set out in s 3A of the CSPA and paragraphs (a), (b), (e), (f) and (g) are relevant in the present case.

Objective Circumstances of the Offences 30The primary factor the Court must consider in determining an appropriate sentence is the objective gravity or seriousness of the offences. In determining the objective seriousness of the offences, the circumstances of any offences to which the Court may have regard include (Bentley v BGP Properties Pty Ltd [2006] NSWLEC 34; (2006) 145 LGERA 234 at [163]; Gittany Constructions Pty Ltd v Sutherland Shire Council [2006] NSWLEC 242; (2006) 145 LGERA 189 at [110] and Plath v Rawson [2009] NSWLEC 178; (2009) 170 LGERA 253 at [48]): (a) the nature of the offence; (b) the maximum penalty for the offence; (c) the harm, if any, caused to the environment by the commission of the offence; (d) the offender's state of mind in committing the offence; (e) the offender's reasons for committing the offence; (f) the foreseeability of the risk of the harm to the environment; (g) the practical measures available to the offender to avoid the harm to the environment; and (h) the offender's control over the causes of harm to the environment.

Nature of the Offences 31A fundamental consideration of relevance to environmental offences is the degree to which the offender's conduct would offend against the legislative objectives expressed in the establishment of the statutory offence (Director-General of the Department of Environment and Climate Change v Rae [2009] NSWLEC 137; (2009) 168 LGERA 121 at [15] and Rawson at [49]). 32The commission of the offences has not caused actual harm to the environment or human health and safety. Similarly, it is not suggested by the council that the development posed a potential risk to human health and safety. 33But the system of planning and development control established by the EPAA is premised on persons taking steps to obey the law by ascertaining when development consent is required and then obtaining that consent prior to the carrying out of any development. Mr Matthews' actions in carrying out the development without first applying for and obtaining consent and then flouting the s 121B Order undermines this system of control established pursuant to that Act. And, as was stated by Preston J in Great Lakes Council v Spalding [2011] NSWLEC 257 (at [35]), the "actions circumvented the integrity of the system and the process of careful, expert consideration that occurs on the lodgement of a development application". As was further observed by his Honour in Pittwater Council v Scahill [2009] NSWLEC 12; (2009) 165 LGERA 289, "there is a need for the upholding, of the integrity of the system of planning and development control" (at [46]). A similar sentiment was expressed in Gittany (at [104]). 34In addition, there can be no doubt that Mr Matthews' conduct offended against the legislative objectives of s 5 of the EPAA, in particular, the promotion and co-ordination of the orderly and economic use and development of land (s 5(a)(ii)).

Maximum Penalty 35The maximum penalty for the commission of each offence under s 121(1) of the EPAA is $1.1 million. The maximum penalty is the public expression of the New South Wales legislature of the seriousness of the offence (Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 at 698).

State of Mind of Mr Matthews and His Reasons for Offending 36The offences are strict liability offences and, therefore, the state of mind of Mr Matthews in committing them is not an element of the offences. Nevertheless, his state of mind in committing the offences and the reasons for committing the offences may increase the seriousness of the offence. A strict liability offence that is committed intentionally, negligently or recklessly will be objectively more serious than one that is committed inadvertently (Ku-ring-gai Council v Abroon (No 3) [2012] NSWLEC 12 at [93]; Garrett v Freeman (No 5) [2009] NSWLEC 1; (2009) 164 LGERA 287 at [68] and Gittany at [123]). 37In relation to the first charge, the contravention of the s 121B Order, as stated above, I find that Mr Matthews deliberately contravened the Order. 38As discussed above, I cannot, however, make the same finding in respect of the second charge, namely, the failure to obtain development consent. In my opinion, on the material before the Court, Mr Matthews' state of mind ought to be characterised as reckless or negligent in respect of the second offence. 39The intentional commission of the first offence increases the objective seriousness of the offence, as does, albeit to a lesser extent, the commission of the second offence recklessly or negligently. 40Mr Matthews indicated that the reason for the commission of the offences was one of expediency, including financial expediency. This is not, however, to be equated with any desire by him to make a profit in the commission of the offences, or to save incurring an expense, or to avoid the cost of obtaining permission such as development consent. Accordingly, s 21A(2)(o) of the CSPA is not engaged.

Foreseeability of the Risk of Harm and the Practical Measures to Prevent Harm 41The extent to which Mr Matthews could have reasonably foreseen the harm caused by the commission of the offences is a relevant factor at sentence (Abroon at [113] and Rawson at [48]). 42I find that Mr Matthews could have reasonably foreseen that to engage in building works absent having obtained the necessary statutory approvals and then in disregard of the s 121B Order would cause harm to the integrity of the planning system. 43Mr Matthews could have easily prevented the harm caused by his unlawful behaviour by obtaining the necessary development consent and immediately ceasing all construction pursuant to the terms of the s 121B Order.

Control Over the Causes of the Harm 44Mr Matthews, as the owner of the development on the property and as the person who directed what works were to be performed, had complete control over the events that gave rise to the commission of the offences and any consequential harm.

The Offences are of Low Objective Gravity 45Notwithstanding Mr Matthews' state of mind at the time of the commission of the offences, I nevertheless find that the offences committed are of low objective gravity.

Subjective Circumstances of Mr Matthews 46A proportionate sentence requires the Court to take into account any mitigating factors that are personal to Mr Matthews (Rae at [55] and s 21A(3) of the CSPA).

Lack of Prior Criminality and Mr Matthews' Good Character 47Mr Matthews does not have any prior convictions for any environmental offences and, absent any evidence to the contrary, is of good character (ss 21A(3)(e) and (f) of the CSPA).

Early Plea of Guilty 48Mr Matthews pleaded guilty on the third return date of the summons. This is because he sought particulars of the charges against him and had initial difficulty in securing representation. The utilitarian value of his plea of guilty was therefore not in any way diminished by the slight delay in pleading guilty. Accordingly, his early guilty plea should attract a maximum discount of 25% (ss 21A(1)(b), 21A(3)(k) and 22(1) of the CSPA and R v Thomson; R v Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383 at [152]-[155]).

Assistance to Authorities 49Mr Matthews has otherwise cooperated with the council throughout the conduct of this matter. Mr Matthews pleaded guilty early, has agreed to a statement of facts and has agreed to pay the council's legal costs fixed in the sum of $9,000 (ss 21A(3)(m) and 23 of the CSPA).

Contrition and Remorse 50Mr Matthews' actions are consistent with him being contrite and remorseful. This contrition and remorse was reiterated to the Court during Mr Matthews' oral evidence. 51Mr Matthews' remorse and his acceptance of responsibility for his actions make it less likely that he will offend in the future (ss 21A(3)(g) and (i) of the CSPA).

Capacity to Pay a Fine 52The uncontradicted evidence demonstrates that Mr Matthews' financial circumstances at present are limited. Although Mr Matthews has not tendered any financial accounts or statements proving his assets and liabilities, income, expenditure or bank balances, I nonetheless accept his evidence in this regard. 53Mr Matthews submitted that his limited financial capacity to pay, together with the fact that he has agreed to pay the council's costs of the proceedings fixed in the amount of $9,000, should be taken into account in fixing the amount of any fine pursuant to s 6 of the Fines Act 1996 (the agreed costs resulting in an additional financial impost on Mr Matthews). 54Section 6 of the Fines Act requires the Court, in fixing the amount of any fine, to consider the financial means of the offender. The procedure is for the Court, once it determines that a fine should be imposed, to determine the appropriate amount by reference to the gravity of the offence for which it is imposed. If the Court is satisfied that the offender will be unable to pay the amount determined, the Court may reduce the amount of the fine to take into account the offender's financial means. 55I have taken Mr Matthews' impecuniosity into account in determining the appropriate monetary penalty for which he is liable.

Conclusion on Subjective Circumstances 56The personal circumstances of Mr Matthews operate to mitigate the penalty to be imposed to a substantial degree.

The Appropriate Sentence to be Imposed on Mr Matthews 57The sentence must be sufficient to deter Mr Matthews from repeating the conduct that has resulted in the commission of the offences in the future. There is also a need for the sentence to have embedded in it an element of general deterrence to promote the objects of the EPAA and to ensure that others engaged in the building trade do not carry out unapproved works (Plath v Hunter Valley Property Management Pty Ltd [2010] NSWLEC 264 at [34]; Scahill at [109]). In Scahill Preston J noted in this context (at [46]-[47]): 46 There is a need for the upholding of the integrity of the system of planning and development control. This system depends on persons taking steps to obey the law by ascertaining when development consent is required and then obtaining development consent before carrying out development: Byron Shire Council v Fletcher [2005] NSWLEC 706; (2005) 143 LGERA 155 at [60]-[61]; Cameron v Eurobodalla Shire Council [2006] NSWLEC 47; (2006) 146 LGERA 349 at [72]-[80]; Byers v Leichhardt Municipal Council [2006] NSWLEC 82 at [83], [85]; Gittany Constructions Pty Ltd v Sutherland Shire Council [2006] NSWLEC 242; (2006) 145 LGERA 189 at [104]; and Garrett v Freeman (No. 5); Garrett v Port Macquarie Hastings Council; Carter v Port Macquarie Hastings Council [2009] NSWLEC 1 at [58]. Development must be carried out in accordance with the terms of the development consent obtained: Gittany Constructions Pty Ltd v Sutherland Shire Council [2006] NSWLEC 242; (2006) 145 LGERA 189 at [105]. 47 The sentencing purpose of general deterrence is particularly relevant where the offender is in a business or industry that undertakes development or action that is regulated by the system of planning and development control. Persons and corporations engaged in demolition, excavation, and building and development work need to be warned by the sentence imposed by courts in cases involving unlawful demolition, excavation, and building and development work that all necessary consents must be obtained and complied with: Mosman Municipal Council v Menai Excavations Pty Ltd at [2002] NSWLEC 132; (2002) 122 LGERA 89 at [31], [32], [35]; Sutherland Shire Council v Nustas [2004] NSWLEC 608 at [18]; Byron Shire Council v Fletcher [2005] NSWLEC 706; (2005) 143 LGERA 155 at [62]; Kari & Ghossayn Pty Ltd v Sutherland Shire Council [2006] NSWLEC 532; (2006) 150 LGERA 231 at [68(e)]. 58The Court takes into account a very limited need for specific deterrence in relation to Mr Matthews. However, it accepts that a tangible level of general deterrence is warranted in the calculation of the penalty to be imposed.

Consistency in Sentencing 59A relevant consideration in sentencing is the ascertainment of the existence of a general pattern of sentencing by the Court for offences such as the offence in question (Gittany at [179]-[182]). 60The proper approach is for the Court to look at whether the sentence is within the range appropriate to the gravity of the particular offences and to the subjective circumstances of the particular offender, and not whether it is more severe or more lenient than some other sentence which merely forms part of that range (Gittany at [182]). Of course care must be taken in looking at whether a sentence is within the range appropriate to the gravity of the particular offences because each case is different (Axer Pty Ltd v Environment Protection Authority (1993) 113 LGERA 357 at 365; Cabonne Shire Council v Environment Protection Authority [2001] NSWCCA 280; (2001) 115 LGERA 304 at 312 and Hili v The Queen; Jones v The Queen (2010) 242 CLR 520 at [54]). 61Neither party referred the Court to any specific authorities in this regard. 62Despite numerous authorities warning against the vice of unauthorised construction, the cases are replete with sentences of varying severity that have been imposed on offenders that have engaged in construction absent development consent. For present purposes, the available range of penalties for offences of a similar nature have been usefully summarised in a number of recent decisions of this Court (Council of the Municipality of Kiama v Furlong [2009] NSWLEC139 at [35]-[40]; The Council of the Municipality of Kiama v Pacific Real Estate (Warilla) Pty Ltd [2009] NSWLEC 191 at [112]; Cessnock City Council v Bimbadgen Estate Pty Ltd (No 2) [2011] NSWLEC 140 at [99] and Hurstville City Council v Naumcevski [2011] NSWLEC 226 at [88]-[91]). For the sake of brevity I do not repeat in full the summary contained in these cases. Suffice it to say that I have had regard to the analyses of comparable sentences referred to in those and other like cases in determining Mr Matthews' penalty. 63I have also had regard to comparable cases concerning the failure to comply with a s 121B Order.

Totality Principle 64Because the two offences arose out of the same actual factual substratum, Mr Matthews submitted that the totality principle applies. I accept this submission (Gittany at [196] and [199]-[200]). Accordingly, the Court must justly and appropriately impose a sentence that reflects the overall total criminality of Mr Matthews (Lee v Office of Environment and Heritage [2012] NSWLEC 9 at [67]). 65In the present case, the commission of the two offences arose out of the same continuous series of acts and comprised a single course of criminal conduct by Mr Matthews. It is therefore appropriate that the overall penalty imposed be reduced.

The Appropriate Penalty 66In my view, the appropriate penalty for each offence is a fine. The amount of the fine is to be determined by the instinctive synthesis of all of the relevant objective and subjective circumstances of each offence and the offender. 67Taking into account the objective circumstances of the offences and Mr Matthews' subjective circumstances I consider that the appropriate penalty in respect of the first offence is a fine of $20,000 discounted by a total of 33% which amounts to a total of $13,400, and in respect of the second offence, I consider that a fine of $10,000 (applying the totality principle) discounted by 33% is appropriate, or $6,700. This brings the total fine in respect of both offences to $20,100. 68The fine is required to be paid within 28 days of the sentence being imposed (s 7 of the Fines Act). However, the Registrar of the Court may allow further time for the payment of the fine upon application (s 10 of the Fines Act).

Costs 69I also consider it appropriate that there be an order under s 257B of the Criminal Procedure Act 1986 that Mr Matthews pay the prosecutor's costs fixed in the amount agreed between the parties, viz, $9,000 (inclusive of GST).

Orders 70 The orders of the Court are as follows: (1) Mr Matthews is convicted of both offences as charged; (2) in respect of the first charge Mr Matthews is fined the sum of $13,400; (3) in respect of the second charge Mr Matthews is fined the sum of $6,700; (4) pursuant to s 257B of the Criminal Procedure Act 1986 Mr Matthews is to pay the prosecutor's costs of the proceedings fixed in the sum of $9,000 (inclusive of GST); and (5) the exhibits are to be returned.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 26 February 2013

(1993) 113 LGERA 357

(2006) 145 LGERA 234

(2001) 115 LGERA 304

(2009) 168 LGERA 121

(2009) 164 LGERA 287

(2006) 145 LGERA 189

(2009) 165 LGERA 289

(2009) 170 LGERA 253

(2005) 143 LGERA 155

(2006) 146 LGERA 349

(2006) 150 LGERA 231

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