Byres v Leichhardt Municipal Council

Byres v Leichhardt Municipal Council - [2006] NSWLEC 82 - NSWLEC 2005 case summary — Zoe

[10]

Appeal against the sentence 7 The appellant's application class 6, being the process by which the appeal to this Court was instituted, referred to the appeal being against "conviction of the severity of the sentence". These words are ambiguous as to whether the appeal was an appeal against conviction, an appeal against the severity of a sentence, or an appeal against both conviction and severity of sentence. 8 The Council by notice of motion sought to strike out the appeal. That motion came before Lloyd J of this Court on 27 January 2006. The appellant was invited to clarify the nature of the appeal. The appellant, who appeared in person on that occasion as he did on the hearing before me, indicated that he wished to appeal against the conviction and the sentence. The Council referred Lloyd J to s 32(1) of the Crimes (Local Courts Appeal and Review) Act 2001 (NSW) ("the Review Act") and, noting that the appellant had neither made any application for leave nor purported to identify any error of law, submitted that the Court had no jurisdiction to hear an appeal against conviction. 9 Lloyd J invited the appellant to identify any error of law on the part of the magistrate. The appellant, however, merely alleged that his solicitor had persuaded him to plead guilty against his own better judgment. The appellant was unable to identify any error of law. 10 Lloyd J held that in the circumstances of this case the Land and Environment Court had no jurisdiction to hear an appeal by the appellant against conviction and directed that the appeal proceed but only as an appeal against the severity of the sentence. 11 On the matter coming before me today for hearing, the appellant confirmed that he was proceeding on the basis that the appeal was only against the severity of the sentence. 12 An appeal against the severity of sentence is made to this Court as of right under s 31(1) of the Review Act. The appeal was lodged on 7 October 2005, on or about the last day of the twenty-eight day period after the sentence was imposed by the Local Court and in which an appeal is required to be lodged by s 31(2)(a) of the Review Act. 13 The appeal is to be dealt with by way of rehearing on the basis of certified transcripts of evidence given in the original Local Court: s 37(1) of the Review Act. Fresh evidence may be given, but only by leave of this Court if the Court is satisfied that it is in the interest of justice that fresh evidence be given: s 37(2) of the Review Act.

[11]

14 The nature of the rehearing required by s 37(1) of the Review Act is akin to the type of appeal contained in s 5AA of the Criminal Appeal Act 1912 prior to the amendment of s 5AA in 2000. That appeal was described by the Court of Criminal Appeal in Cooper v Coffs Harbour Council (1997) 97 LGERA 125 at 127-128 as follows: "…an appeal under s 5AA is not restricted to a determination of whether the decision of the Court below was infected with error. It is a rehearing on the evidence given before the trial Court. The width of the Court's jurisdiction when determining an appeal under this section is evidenced by s 5AA(4) which permits the Court to vacate the determination made by the trial court and to make any determination that the trial court could have made on the evidence heard on appeal. The Court is not concerned, as it would be in an ordinary appeal under s 5 of the Criminal Appeal Act , with whether the original determination was unsafe and unsatisfactory but whether the Court is independently of the same view as the trial court that the offence has been made out. The nature of the jurisdiction of this Court on an appeal under s 5AB was considered in Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority. It was held that an appeal under s 5AA was not a de novo rehearing but the Court was to consider the evidence before the trial court, together with any additional or substituted evidence admitted on the appeal, and resolve for itself afresh the ultimate issue for determination. Shortly after the decision in Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority was delivered, s 5AA was amended by substituting a recasting of subs 3 and the insertion of subs 3A. These amendments, however, did no more than confirm the correctness of that decision. Subsections 3 and 3A of s 5AA now make it clear that an appeal under the section is to be determined on the evidence before the trial court unless leave is given by this Court for fresh, additional or substituted evidence to be adduced. Although this Court is concerned primarily to redetermine the charge on the evidence before the trial court, it does not follow that the hearing of the appeal is limited only to a review of that evidence even if no other evidence is adduced on the hearing of the appeal. For example, on an appeal by way of a rehearing, the appeal court considers the law as it applies at the time of the rehearing. The court conducting the rehearing can also, where necessary to redetermine the matter on the evidence, apply the procedural provisions which operated in the trial court. As Hunt J (as he then was) said in Huntley Colliery Pty Ltd v State Pollution Control Commission, "the appeal is on almost all fours with an appeal from the decision of a magistrate to the District Court". This statement was applied in Camilleri's Stock Feeds Pty Ltd v EPA . The difference in the nature of an appeal to this Court and an appeal from a magistrate to the District Court, is that an appeal under s 5AA is not a new hearing in which the prosecutor is required to lead the evidence to support the charge afresh."

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18 In about 2002, the appellant purchased a residential property comprising lot 1 in DP958060 known as "Garemyn" at 5 Rayner Street, Lilyfield. 19 The appellant said that he had noticed cracks in the walls of the dwelling house. Initially, the appellant sought to remedy the problem by filling the cracks. However, the cracks kept reappearing. 20 The appellant believed that the problem was more serious than he had originally expected. The appellant said that he concluded that he needed to reinforce the underpinnings of the house. 21 The appellant started to excavate under the footings of the house to ascertain if he could fix the problem himself. The excavation involved substantial work. 22 The carrying out of the work disturbed a neighbour. On 18 June 2004, a neighbour complained to the respondent. 23 On 22 June 2004, Mr Steven Purvis, a compliance officer with the Council, visited the premises. He observed a skip bin outside the premises. He did not enter the premises on this occasion. 24 On 23 June 2004, Mr Steven Purvis and Mr Chris Thorn, another compliance officer with the Council, attended the premises. Mr Thorn took photographs of the subfloor area. These photographs formed part of exhibit 1 in the Local Court or exhibit 2 in this Court. 25 Mr Purvis observed that the appellant was removing soil from under the dwelling house to create a storage area or basement. The excavation covered most of the footprint of the house and was to a depth of around two metres. The appellant had introduced lintels to support the works and there were steel support beams. The position of the lintels and other support beams allowed for an open floor plan. 26 The photographs taken by Mr Thorn show the matters observed by Mr Purvis. The photographs show a substantial excavation under the floor of the house. 27 Mr Purvis informed the appellant that he would be required to provide to the Council an engineer's certificate for the stability of the dwelling house. 28 Later on that day, 23 June 2004, the Council issued a notice of demand to stop work. The notice stated, so far as is relevant: " Environmental Planning and Assessment Act 1979 NOTICE OF DEMAND TO STOP WORK. Development without the prior approval of Council. Premises: 5 Rayner Street, LILYFIELD NSW 2040. Cnr lot 1 DP958060. File: property file. An inspection of the above property on the 23 June 2004 revealed that:- unauthorised excavation under the subject premises which is in contravention of the Environmental Planning and Assessment Act 1979. The Council requires you to: immediately stop all development work at the above property; immediately have a structural engineer inspect and report on the excavated area and structural stability of the existing premises. prior to commencing any further development work: * a Development Application is to be submitted and approved for any further contemplated work; * a Construction Certificate is to be submitted and approved for any further contemplated work; * a Building Certificate is to be obtained for the work carried out without the prior approval of Council; * the collection of approved plans and the payment of all relevant fees must be complied with; * give the Council a written undertaking by the 1 July 2004, in the form set out on the next page." Accompanying the notice of demand to stop work was an undertaking. 29 On 1 July 2004, the appellant signed and returned to the Council the undertaking that had been enclosed with the notice of demand to stop work. That undertaking given by the appellant was in the following terms, namely that the appellant: " UNDERTAKE to Leichhardt Municipal Council that I/we will not carry out further building work at the above property in contravention of the Environmental Planning and Assessment Act 1979, and FURTHER UNDERTAKE that by not later than 1 July 2004 I/we will do the following:- cease all building works; submit a structural engineer's report;

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I/we understand that if I/we reach this undertaking the Council may exercise its powers in relation to the illegal building work and may present this undertaking in evidence to a Court." 30 On 8 July 2004, Mr Purvis of the Council received a telephone call from a structural engineer engaged by the applicant, Mr Anthony Pellicano. Mr Pellicano advised that he had attended the premises. His inspection indicated that underpinning is required immediately and that the Council should lift the stop work order until such time as the underpinning is complete. Mr Purvis informed Mr Pellicano that the Council would allow this work to be performed but would require something in writing to add to the file. 31 Mr Pellicano faxed a letter from him dated 2 July 2004 but received by the Council on 8 July 2004. That facsimile stated: "I attended the site on Friday 02 July 2004 to inspect the unauthorised excavation work carried out to the subfloor area of 5 Rayner Street, Lilyfield. In regard to the notice of demand to stop work issued by Council, it is strongly recommended that Council allow the underpinning stage of the works to proceed to ensure the structural stability of the existing structure is maintained. Once all the underpinning is completed and the structural stability of the existing structure is maintained, then works can cease until the owner complies with all the conditions of the notice of demand to stop work." 32 On 10 August 2004, the appellant lodged an application for a building certificate for works that the appellant described as "underpinning/storage space." 33 On 30 August 2004, the Council wrote to the appellant requesting information, in particular a surveyor's report, and deferring further consideration of the building certificate application until the information was received by the Council. 34 On 1 September 2004, Mr Byers received a survey of the land. However, the survey did not show the area that had been excavated under the floor of the dwelling house. 35 On 22 September 2004, the Council again wrote to the appellant requesting further information, this time a structural engineer's design and certificate for the excavation works to be carried out beneath the dwelling and a structural certificate of works undertaken to date. Again the Council advised that it had deferred consideration of the building certificate application until the further information was received by the Council. 36 The appellant claimed that he never received this letter. 37 On 16 November 2004, the Council again received a complaint from a neighbour about building works being undertaken by the appellant on the land. The neighbour complained that excavation, movement of bricks and other building materials, drilling and hammering were taking place. The work was occurring at all hours of the night, during the week and weekends. 38 On 16 and 19 November 2004, Mr David Morley and Mr David Shaw of the Council visited the premises but no one was home. 39 On 29 November 2004, Mr Morley inspected the premises and observed that no further work seemed to have been undertaken since the undertaking was signed to stop work. 40 On 9 September 2005, representatives of each of the Council and the appellant attended the appellant's property and prepared a sketch map of the excavated area and took photographs. The sketch map showed the dimensions of the excavated area to be, at their greatest, 6.5 metres by 8 metres. The photographs showed that a concrete slab floor had been poured in part of the excavated area, brick walls had been built on the faces of the excavation, a door frame entrance had been installed and a staircase had been built from the entrance to the floor. The photographs also show electrical wiring. These items of building work appear to have been done subsequent to the offence period in June 2004, as they do not all appear in the photographs that were taken on 23 June 2004. 41 On 14 September 2005, the appellant's engineer, Mr Pellicano, wrote to the appellant stating: "Having inspected the excavation of the subfloor area to the existing premises on 12 September 2005, along with the underpinning works being carried out, I am of the opinion that the structural adequacy and integrity of the existing structure has not been diminished.

[89]

(g) The failure to comply with s 76A(1)(a) of the EPA Act by submitting a development application precluded the responsible public authority, the Council, from considering and addressing the issues in (a)-(f) above, including by refusing development consent or by granting development consent but subject to conditions which prevented or mitigated to an acceptable level any adverse impacts, such as the ones that I have described. The appellant's state of mind 69 An accused's state of mind can increase the seriousness of the offence. 70 The appellant undertook the work constituting the offence intentionally. The excavation, and the subsequent building work to create a storage space, far exceeded what reasonably could have been required to address the cracking of the walls. It is quite clear that the appellant intended, as an actuating purpose of the works, to create a storage space in the sub floor area. 71 Further, the appellant's conduct in excavating at all, and certainly to the extent that the appellant did excavate in and around the foundations of the house, was negligent. The appellant asserts that he was concerned to address cracking in the walls, which cracking he considered to be caused by instability in the foundations resting on clay. The appellant had no qualifications or experience in building or engineering. In these circumstances, no reasonable person in the position of the appellant would excavate at all or certainly to the extent that the appellant excavated in and around foundations that were apprehended to be unstable. Clearly there was a foreseeable risk of exacerbating the instability and threatening the structural stability and integrity of the house. That foreseeable risk of harm eventuated. 72 The Council - the public authority charged by the legislature with the responsibility for ensuring that building work, including excavation, is carried out with development consent and with due regard being had to health and safety considerations - immediately ordered the appellant to stop work because of the Council's justified concerns as to the stability and integrity of the house and works. The engineer engaged by the appellant also had the same concerns upon inspecting the works. He advised that underpinning needed to be undertaken immediately. The subsequent studies including by the engineer and the directions by the Council only confirmed the effect that the appellant's works have had on threatening the structural integrity and stability of the house. 73 In these circumstances, the offence can be seen to be foreseen, negligent and the consequence of conduct that was intended by the appellant: see Camilleri's Stock Feeds Pty Limited v Environment Protection Authority (1993) 32 NSWLR 683 at 700.

[90]

The appellant's reasons for committing the offence 74 The criminality involved in the commission by the appellant of the offence is not only to be measured by the seriousness of what occurred, but also by reference to the reasons for its occurrence: Axer Pty Limited v Environment Protection Authority (1993) 113 LGRA 357 at 366. 75 The appellant did not undertake the work merely to improve the stability of the house; indeed as I have said the actions taken may have threatened the stability of the house. The appellant also wanted to create an extensive storage space in the subfloor space. 76 This is evident from the extent of the works (the length, breadth and depth of the excavation, covering most of the footprint of the house. It is also evident from the nature of the works (the open floor plan which was conducive to the installation of a concrete slab floor, brick walls, door frame, entrance and staircase, which were constructed subsequently to the offence period). The extent and nature of the works provide a basis to draw the inference that the appellant desired to create an extensive storage space. 77 Furthermore, the appellant stated in his application for a building certificate lodged within a matter of months after being apprehended and being ordered to stop work that the works were "underpinning/storage space." 78 The appellant's solicitor, Mr Peluso, at the hearing before the Local Court, submitted that "once the appellant started excavation he thought 'well I may as well now use that' but it wasn't his intention to start": transcript 9 September 2005, p.5, lines 44-46. 79 Mr Byres also stated from the bar table in his submissions on this appeal that the space created by excavation could be used beneficially for storage space. 80 Magistrate Kennedy found, in his judgment, that the completed works would add some value to the property and that the appellant stood to gain some financial advantage from committing the offence, although that value and that financial advantage had not been quantified. The appellant does not contest these findings. 81 The reasons of the appellant in committing the offence add to the seriousness of the offence.

[91]

The need for general deterrence 82 Courts have continuously and consistently stressed the need for general deterrence in sentencing for environmental offences, including offences against the EPA Act. Many of the cases in which courts have so stated are set out in the judgment in Cameron v Eurobodalla Shire Council [2006] NSWLEC 47 (13 February 2006) at [71]-[80]. In addition, for cases involving the carrying out of demolition, excavation and building work without consent, see Mosman Municipal Council v Waratah Village Partners Pty Limited [2003] NSWLEC 101 (28 March 2003) at [30]; Warringah Shire Council v Sahade [2004] NSWLEC 333 (27 May 2004) at [15]; Pittwater Council v Walters [2004] NSWLEC 75 (3 February 2004) at [16] and [18]; Keir v Sutherland Shire Council [2004] NSWLEC 754 (7 December 2004) at [13]-[15]; Fairfield City Council v Cavasinni Constructions Pty Limited [2005] NSWLEC 187 (22 April 2005) at [26]; and Carlino v Leichhardt Municipal Council [2005] NSWLEC 198 (27 April 2005) at [31]-[34], as well as the cases referred to by Mr Howard in his table and cited earlier in this judgment. 83 The sentence of the Court should properly operate as a powerful factor in preventing the commission of similar crimes by persons who might be tempted to do so by the prospect that, if they are caught, only light punishment will be imposed: R v Rushby [1977] 1 NSWLR 594 at 597. This is particularly so in the context of unlawful development, having regard to the policy considerations that have been articulated, including by Lloyd J in Mosman Municipal Council v Menai Excavations Pty Limited (2002) 122 LGERA 89 and Carlino v Leichhardt Municipal Council [2005] NSWLEC 198 (27 April 2005). The carrying out of development without first obtaining development consent undermines the system of planning established under the EPA Act. 84 The appellant submitted that he was not aware of the need to obtain development consent for digging or excavating under the dwelling house. Of course, excavation can involve development, as it did in this case. The purpose for which the excavation was carried out was for the purpose of the dwelling house. There was a need to obtain development consent. 85 The system of planning control established under the EPA Act depends on persons, such as the appellant, taking steps to obey the law by ascertaining when development consent is required and then obtaining the development consent before carrying out the development: Byron Shire Council v Fletcher [2005] NSWLEC 706 (25 November 2005) at [60] and Cameron v Eurobodalla Shire Council [2006] NSWLEC 47 (13 February 2006) at [72]. 86 Accordingly, it was incumbent upon the appellant to have made proper enquiries to ascertain what constituted development and when development consent was needed for such development. There is a need for a general deterrence so that others, like the appellant, will be put on notice that they are obliged to make the necessary enquiries of the need for development consent and then obtain development consent. 87 There is also a need to deter other persons from taking unilateral action such as was taken by the appellant in this case. The appellant's actions had significant consequences including circumventing the integrity of the system of planning and development control and the process of careful, expert consideration that occurs on the lodgement of a development application, including of the issues of the structural stability and integrity of the dwelling house, the health and safety of the occupants and other entrants, the disturbance to the comfort and amenity of neighbours and the suitability and habitability of the basement area. 88 Magistrate Kennedy was correct to take into consideration the need for general deterrence.

[93]

No prior convictions 90 The appellant in this case has no prior convictions. The lack of prior criminality is a factor in sentencing in this case: see Camilleri's Stock Feeds Pty Limited v Environment Protection Authority (1992) 32 NSWLR 683 of 701 and s.21(A)(3)(e) of the Crimes (Sentencing Procedure) Act 1999. Plea of guilty 91 The appellant has pleaded guilty to the offence. Section 22 of the Crimes (Sentencing Procedure) Act 1999 expressly requires the Court to take into account the fact that the offender has pleaded guilty and when the offender pleaded guilty. Accordingly, the Court may impose a lesser penalty than it would have otherwise imposed. 92 A guideline judgment in respect of the discount for plea has been given by the Court of Criminal Appeal in R v Thomson; R v Houlton (2000) 49 NSWLR 383. The utilitarian value for a plea of guilty has been assessed to be in the range of ten to twenty-five percent on sentence. 93 A primary consideration in determining where in the range a particular case should fall is the timing of the plea: R v Thomson; R v Houlton (2000) 49 NSWLR 383 at 418 [154], 419 [160] and s 22(1)(b) of the Crimes (Sentencing Procedure) Act 1999. 94 In this case, the appellant originally pleaded not guilty. The first return date in the Local Court was 13 April 2005 at which there was no appearance by the appellant. On 18 May 2005, the matter was adjourned to enable the appellant to seek legal advice. On 8 June 2005, the matter was again adjourned, the defendant having left a message that he was sick. The matter was apparently again adjourned on 29 June 2005. On 13 July 2005, the appellant pleaded not guilty. This remained the situation until 6 September 2005, three days before the hearing, when the appellant's solicitor wrote to the Local Court Registry and also indicated to the respondent that the appellant had decided to change his plea to guilty. On the day of the hearing, 9 September 2005, the appellant, through his solicitor, formally entered a plea of guilty. 95 In Environment Protection Authority v Australian Waste Recyclers 1 Pty Limited [2005] NSWLEC 739 (22 December 2005), the defendant indicated to the prosecutor its intention to change its plea from not guilty to guilty only one and a half days before the trial. Cowdroy J considered that the extreme lateness of the indication of change of plea warranted only a 10 per cent reduction: at [163]. See also R v Karacic (2001) 121 A Crim R 7 at 11 [17] and R v MacDonnell (2002) 128 A Crim R 44 at 51 [40]. 96 Such an approach accords with the holding in R v Thomson; R v Houlton (2000) 49 NSWLR 383 at 418 [155] that: "A discount towards the bottom of the range [10-25 per cent] is appropriate for late pleas, for example, on the date fixed for trial, unless there are particular benefits arising from the prospective length and complexity of the trial." 97 Magistrate Kennedy considered that the appellant should be entitled to a "substantial" discount for the appellant's plea of guilty. Magistrate Kennedy did not quantify what he meant by "substantial". 98 I am, however, of a different view. The lateness of the indication by the appellant of his intention to change his plea, and the absence of any particular benefits arising from the prospective length and complexity of the trial for the offence with which the appellant was charged, indicate that the discount should be towards the bottom of the range. I would quantify that discount at 12.5 per cent.

[95]

Co-operation with a regulatory authority 103 The co-operativeness of an accused is a matter to be taken into account in fixing penalty: Camilleri's Stock Feeds Pty Limited v Environment Protection Authority (1993) 32 NSWLR 683 at 700-701 and s 23(1) of the Crimes (Sentencing Procedure) Act 1999. 104 The co-operation of the appellant with the relevant regulatory authority, the Council, has been patchy. The appellant did permit council officers to inspect the premises when he was home on 23 June 2004. This was during the offence period. He also permitted an inspection at a later time on 29 November 2004. Further the appellant permitted an inspection on the day of the hearing before the Local Court on 9 September 2005. 105 The appellant signed and furnished to the Council an undertaking in the form enclosed with the stop work order on 23 June 2004 not to carry out any further work and to undertake certain steps to regularise the work. However, the appellant continued to do work contrary to both the stop work order and his undertaking, at least in and around November 2004. This work led to further complaints by neighbours. 106 The appellant submitted that he had been told by his engineer, Mr Pellicano, that he could carry out the works and he thought that, notwithstanding the stop work order and his solemn signed undertaking to the Council, that he could continue work. As Magistrate Kennedy found this is difficult to accept. The terms of the stop work order and the terms of the undertaking given by the appellant are clear: no further work should be carried out unless and until each and every one of the requirements set out in those documents had been complied with. Those requirements had not been complied with before the appellant carried out the work. 107 It is true that, at least in more recent times, the appellant has sought to regularise the work that he has carried out. He has made a further application for a building certificate and he endeavoured to make a development application. He has obtained advice from his engineer, Mr Pellicano. 108 Nevertheless, there still seems to be a lack of appreciation by the appellant of the criminality involved in his conduct, and the need to comply strictly with the law, the Council orders and his undertaking. 109 Magistrate Kennedy found that the appellant, after receiving the stop work orders and advice from the Council, failed to follow up the matter and make sure he obtained the appropriate consents. Such action was warranted, whether or not the appellant received the Council's letter of 22 September 2004. Magistrate Kennedy found that the appellant has not been as co-operative as he could have been. That is an appropriate finding on the evidence. 110 In the circumstances, this factor of co-operation should not be given any significant weight.

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