Cowra Shire Council v Fuller

Land and Environment Court (NSW)|2015-02-04|Before: Pain J, Mr P

Solicitors: Bradley Allen Love Lawyers (Prosecutor) Hills Solicitors (Defendant) File Number(s): 50209 of 2014

Sentencing for unlawful demolition of building

The Defendant is charged with committing an offence against s 125(1) and s 76A(1) of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) in that he carried out development, being development which the Cowra Local Environmental Plan 1990 (1990 LEP), an environmental planning instrument, provided may not be carried out except with development consent, without a development consent that was in force. The particulars of the offence charged are that: a. On or about 7 April 2012 a building known as "Shiel Homestead" on land described as lot 2 DP 541195 located at George Russell Drive Woodstock NSW ("Shiel Homestead") was demolished. b. At all relevant times, the land on which the Shiel Homestead was located was within Zone No. 1(a) (Rural Zone) under the 1990 LEP. c. On land within that zone, development comprising the demolition of a building was specified in the 1990 LEP as development which may be carried out only with development consent. d. No development consent was in force when Shiel Homestead was demolished. e. The development was carried out at the direction of the defendant.
The offence is one of strict liability and the Defendant's mens rea is not an element of the offence.

Purposes of sentencing

The offences charged are strict liability offences. It is not part of the elements of the offence that the Defendant intended to commit the offence. Section 3A of the Crimes (Sentencing Procedure) Act 1999 (NSW) (CSP Act) identifies the purposes of sentencing. It states: The purposes for which a court may impose a sentence on an offender are as follows: (a) to ensure that the offender is adequately punished for the offence, (b) to prevent crime by deterring the offender and other persons from committing similar offences, (c) to protect the community from the offender, (d) to promote the rehabilitation of the offender, (e) to make the offender accountable for his or her actions, (f) to denounce the conduct of the offender, (g) to recognise the harm done to the victim of the crime and the community.
Section 21A of the CSP Act identifies numerous matters which a court must take into account when sentencing including in relation to aggravating (s 21A(2)) and mitigating (s 21A(3)) factors.
In Bentley v BGP Properties Pty Ltd [2006] NSWLEC 34; (2006) 145 LGERA 234 at [163] and Gittany Constructions Pty Ltd v Sutherland Shire Council [2006] NSWLEC 242; (2006) 145 LGERA 189 at [110] relevant factors to determine the objective gravity of an offence were identified for offences under the EPA Act. The factors include the maximum penalty, the objective harmfulness of the defendant's actions, the reasons for the commission of the offence and the state of mind of the offender. Another relevant factor can be consideration of the statutory scheme in which the offence provision appears: see Blue Mountains City Council v Carlon [2008] NSWLEC 296 at [48], Mosman Municipal Council v Menai Excavations Pty Ltd (2002) 122 LGERA 89 at [35].
An important consideration in this case is upholding the statutory scheme for orderly planning in NSW under the EPA Act, as identified in numerous cases including Menai and Burwood Council v Douehi [2013] NSWLEC 196; (2013) 200 LGERA 152.

Objective circumstances

The maximum penalty for the offence committed is $1.1 million (10,000 penalty units) a relevant consideration reflecting the seriousness of the offence as nominated by the Parliament of New South Wales: Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 at 698; see also Markarian v R [2005] HCA 25; (2005) 215 ALR 213 at 231.
Section 21A of the CSP Act relevantly states (2) Aggravating factors The aggravating factors to be taken into account in determining the appropriate sentence for an offence are as follows: … (g) the injury, emotional harm, loss or damage caused by the offence was substantial, … (i) the offence was committed without regard for public safety,… (n) the offence was part of a planned or organised criminal activity, (o) the offence was committed for financial gain …
The objective seriousness of the offence may be measured by the reasons for its commission, per Director-General of the Department of Environment and Climate Change v Rae [2009] NSWLEC 137 at [47].
The Prosecutor submits the offence is serious and that there are aggravating factors as identified in s 21A(2)(g), (i), (n) and (o) of the CSP Act. There was harm to the heritage of the Cowra local environment with the loss of the Shiel homestead (subs (g)). This was found by heritage experts Mr Reinberger engaged by the Defendant and Mr Scobie the Prosecutor's heritage consultant to have rare heritage significance at the local level. The effect of the offence was to prevent the Prosecutor from issuing an Interim Heritage Order (IHO) or listing the building as a heritage item under the 1990 LEP. The activity giving rise to the offence was planned and deliberate (subs (n)). The offence occurred on 7 April 2012 when the Defendant was in Sydney by contractors acting at his direction. The Defendant told the caretaker that an excavator would be arriving later that week. The hot water service and electric stove had been removed prior to the demolition at the direction of the Defendant. The SOAF identifies six occasions when the Defendant was told or was clearly aware that he required development consent for demolition, on 9 November 2011 (par 12), 5 December 2011 (par 16), 31 January 2012 (par 19), engagement of consultant to prepare DA 1 February 2012 (par 21), 2 April 2012 site visit by Council officer (par 26) and 30 March 2012 conversation with the mayor (par 28). There was a failure to consider public safety as no investigation of whether the structure contained asbestos was carried out before the demolition, only afterwards (par 37 of the SOAF) (subs (i))
The reason for committing the offence was to facilitate the construction of a new dwelling on the same property. The construction of that dwelling was not permissible under the 1990 LEP unless the Shiel homestead was demolished. While not direct financial gain there was a significant personal gain to the Defendant (subs (o)).
The Defendant submits the offence was committed in extenuating circumstances. These extenuating circumstances include; 1. The circumstances of purchase; 2. Mrs Fuller's health; 3. The condition of the Shiel property; and 4. Cowra City Council's sudden push for the Shiel property to become potentially heritage listed after the Defendant vocalised his desire to demolish the property. 5. Absence of commercial gain.
The circumstances of purchase relied on are that the Defendant was moving his substantial cattle breeding property from Bylong, the s 149 Certificate issued by the Prosecutor at the time of sale made no mention of any heritage issues in relation to the Shiel homestead (conversation set out in par 19 SOAF). The Prosecutor has undertaken three heritage inquiries as detailed in par 48 of the SOAF which did not identify the Shiel homestead at all. Heritage issues were only raised for the first time by the Prosecutor when the Defendant expressed interest in replacing the homestead.
Mrs Fuller is in poor health and has been for over 20 years and needs assistance with mobility such as a chair or walking stick. Renovation of the two storey homestead was beyond her and a two storey building was not suitable for her. Mrs Fuller's health as a reason leading to the demolition of the Shiel homestead was reflected in the letter of support provided by Father Harrigan.
The Shiel homestead, whilst structurally sound, required significant restoration work (see pars 54-60 of the SOAF, referring to the evidence of Mr Reinberger, Mr Dresser, Mr Waters and Mr Humphries). Aside from the state of disrepair, there had been numerous incidents which occurred in the house during the nine months leading up to March 2012 after the acquisition of the property by the Defendant and his wife. These include: 1. An electric fire in the kitchen caused by failure of VIR wiring; 2. Collapse of external staircase providing access to rear verandah; and 3. Failure of hot water system and leakage of hot water system into ground floor rooms of the residence.
Further, any renovation of the Shiel homestead would have been cost prohibitive (see par 19 of the SOAF).
The only loss in terms of heritage was the potential for listing of the property as a heritage item or as subject to an IHO. There is no certainty that such measures would have been implemented. If implemented they would not have imposed an obligation on the Defendant to reinstate the homestead. The reports of Mr Scobie and Mr Reinberger did not identify an architect responsible for the building. Nor was a Burra Charter/ICOMOS assessment conducted as part of the heritage assessment. Mr Scobie's conclusions were not final or certain. The fact that Mr Reinberger formed the view that the homestead satisfied criteria for local listing does not lead to the conclusion that it would have been heritage listed. There was no environmental harm from the actual demolition work carried out.

Finding on objective seriousness

Maintaining the integrity of the planning system in NSW as found in the EPA Act which applies to all private landowners intending to develop their property is important. Failure to obtain development consent potentially undermines the orderly development required by that system. Further, I largely agree with the Prosecutor's submissions that this is an objectively serious offence given that the Defendant was well aware of his legal obligation to make a development application (DA) for demolition and chose not to abide by that requirement in the EPA Act. There was nothing inadvertent or accidental about his actions which gave rise to the offence in the circumstances of planning the demolition identified by the Prosecutor. The circumstances identified by the Prosecutor at par 15 suggest a large measure of premeditation, an aggravating factor under subs (n). The Defendant also failed to consider public safety in that the building was not assessed for asbestos before demolition, only afterwards, a further aggravating factor under subs (i)).
Another aggravating factor is the environmental harm resulting from the offence (subs (g)). The environmental harm caused is the potential for recognition and protection of the Shiel homestead as a heritage item for the local community of Cowra, a potentially important loss which is irreversible as a result of the offence. That there was uncertainty whether listing as a heritage item under the 1990 LEP or the placement of a protective IHO at the date of the offence does not reduce the objective seriousness of the offence. The only reason the issue did not come before the Prosecutor for further consideration in relation to such matters later in April 2012 was the demolition of the building. That the final result of any heritage consideration is unknown results entirely from the Defendant's actions. That the listing of the Shiel homestead as a heritage item under the 1990 LEP or being made the subject of an IHO imposes no obligation on the Defendant to restore the property is a neutral factor. That is simply the regime for heritage protection of buildings currently in place in NSW.
It is difficult to give much weight to the matters said to have caused such frustration to the Defendant that he chose to deliberately ignore compliance with the EPA Act. Any lawful option was pre-empted by his precipitate action, for example filing a DA and appealing to this Court in the event of a refusal of consent by the Prosecutor. According to par 30 of the SOAF, Mr Reinberger's advice in the conversation with the Defendant on 4 April 2012 was that demolition of the homestead may still have been possible if, for example, certain archival measures were implemented. The Defendant was not prepared to wait and find out the outcome of any deliberation on such measures by the Prosecutor.
I note that the Defendant was frustrated by the late, from his point of view, identification of potential heritage issues by the Prosecutor. That the building was not included in the three heritage studies identified in the SOAF in par 48 is not material. The key matter complained of is that the s 149 certificate did not include any indication of heritage values in the homestead. All that can be accepted but there was nothing unreasonable in the Prosecutor's behaviour in undertaking its planning obligations under the EPA Act in investigating heritage issues once these became known, indeed it was obliged to investigate the heritage aspects of the homestead in my view. The timing was unfortunate from the Defendant's perspective but that does not excuse the unlawful and deliberate demolition. The Defendant deliberately cleared the impediment standing in his way to achieving the goal of a new house on the homestead site, a substantial personal gain in my view. This accorded with his plans to have a house overlooking the new cattle sheds and yard which were nearing completion at the end of January 2012. That he was motivated by in part by the desire to provide a suitable residence for his ill wife is not an adequate excuse.
The state of repair of the Shiels homestead is irrelevant to lessening the seriousness of the offence. While it was in poor repair and required significant restoration work according to pars 55-59 of the SOAF it remained structurally sound. Nor is there any reason to question the findings of the two heritage experts Mr Scobie and Mr Reinberger to the effect that it had local heritage significance simply because the original architect of the building was not referred to, or that a Burra Charter/ICOMOS assessment was not conducted, as the Defendant submits. That the Defendant's expressed view was that restoration of the homestead was cost prohibitive is not material to the assessment of objective seriousness.
I do not consider the circumstances said by the Defendant at pars 18 and 19 to be extenuating modify the objective seriousness of the offence. The objective seriousness of this matter is moderate to high.

Subjective factors

Section 21A(3) of the CSP Act identifies the relevant mitigating factors as follows: … (e) the offender does not have any record (or any significant record) of previous convictions, (f) the offender was a person of good character, (g) the offender is unlikely to re-offend, (h) the offender has good prospects of rehabilitation, whether by reason of the offender's age or otherwise, (i) the remorse shown by the offender for the offence, but only if: (i) the offender has provided evidence that he or she has accepted responsibility for his or her actions, and (ii) the offender has acknowledged any injury, loss or damage caused by his or her actions or made reparation for such injury, loss or damage (or both), … (k) a plea of guilty by the offender (as provided by section 22), … (m) assistance by the offender to law enforcement authorities (as provided by section 23).

Early plea of guilty

The Defendant entered a plea of guilty to the charge on the 27 June 2014, when the matter was listed for the second time. The Defendant's plea of guilty was entered at the earliest opportunity, as the Prosecutor accepted. In accordance with s 21A(3)(k) and s 22 of the CSP Act, it is submitted that Mr Fuller is entitled to the usual significant discount upon sentence for his plea of guilty at the earliest practicable opportunity. The guideline judgment of the Supreme Court of New South Wales in R v Thompson & Houlton (2000) 115 A Crim R 104 sets out the appropriate discount being in the order of 10% to 25% and should be applied to the full amount identified.
In light of the history of the lack of co-operation with the Prosecutor identified by the events in pars 61-94 the Defendant does not gain the benefit in mitigation of co-operation with authorities identified in s 21A(3)(m). (Nor is the seriousness of the offence exacerbated on this basis). That the Defendant co-operated in the proper disposal of the waste arising from the demolition is not relevant to the investigation of the offence.

Remorse

The Defendant has pleaded guilty, an expression of remorse according to his counsel. Expressions of remorse can be taken into account in mitigation according to s 21A(3)(i) where a Defendant provides evidence that he or she has accepted responsibility for his actions and has acknowledged any loss caused by his actions or made reparation. The Defendant did not provide an affidavit or sworn statement expressing his remorse to the Court, the more usual course in this Court. Remorse was expressed from the bar table by his counsel, to which I give very limited weight extrapolating from Environmental Planning Authority v Port Kembla Copper Pty Ltd [2001] NSWLEC 223 at [28], and also my approach in Douehi at [33] where I held that generally more than a guilty plea is required as an expression of remorse. The Defendant expressed remorse to Father Harrigan but I do not consider that should be accorded much weight in the absence of sworn evidence to the Court from the Defendant. I considered similar issues and provided reasons for a similar approach in Hawkesbury City Council v Johnson (No 2) [2009] NSWLEC 6 at [112]-[113], [115] citing the Court of Criminal Appeal in R v Elfar [2003] NSWCCA 358 at [24]-[25] which reasoning I adopt here. The passage from Elfar emphasises that where a court does not have the opportunity to test evidence concerning the remorse of a defendant it should be accorded little weight in sentencing. I agree with the Prosecutor's submission that there should be no discount of the penalty for an expression of remorse in this case.

No prior record/Defendant of good character

The Defendant does not have any record of previous convictions other than for traffic offences. I accept he is of good character in light of the two positive personal references provided by him. I also accept that the Defendant is unlikely to re-offend and will take these matters into account in the reduction of penalty.

General deterrence

The Prosecutor submitted that general deterrence was an important consideration citing Environmental Planning Authority v Hanna [2014] NSWLEC 152; (2014) 205 LGERA 39 at [152]. Sentences imposed in relation to environmental offences must embrace powerful considerations of general deterrence: see Axer per Badgery-Parker J at 367. In Axer Pty Ltd v Environmental Planning Authority (1993) 113 LGERA 357, Mahoney J stated at 359: The quantum of the fines which the legislation allows to be imposed has no doubt been fixed not merely to indicate the seriousness with which such pollution is regarded but also to deter those engaged in such activities and to procure that they will take the precautions necessary to ensure that it does not occur.
This is an important consideration in this matter given the very large volume of development that occurs in this state and the importance of enforcing the EPA Act so that there is a level playing field for all under that system.

Evenhandedness

The Prosecutor summarised seven cases it had identified which concerned offences relating to demolition of heritage items or items of heritage value. I agree with its submission that none is comparable to this case which is far more serious than the matters cited, such as Menai, Mosman Municipal Council v Waratah Village Partners Pty Ltd [2003] NSWLEC 101 and Gosford City Council v Colmer [2002] NSWLEC 257. The Defendant cited Ku-ring-gai Municipal Council v Kizana [2002] NSWLEC 187 in which a fine of $75,000 was imposed where the defendant had forged a development approval as an example of a more serious situation than in this matter. That case had different circumstances and also does not assist.

Penalty

Taking into account the objective and subjective factors identified above a penalty of $250,000 is appropriate, which should be reduced by 30% to take into account the mitigating factors identified above. A penalty of $175,000 is imposed.
An order for the payment of costs as agreed or assessed will be made.
Orders
The Court makes the following orders: 1. In matter no 50209 of 2014 the Defendant is convicted of the offence as charged. 2. In matter no 50209 of 2014 the Defendant is fined $175,000 to be paid to the Registrar of the Court within 28 days of today's date. 3. The Defendant must pay the Prosecutor's costs as agreed or assessed.

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: 11 February 2015

(1993) 113 LGERA 357

(2006) 145 LGERA 234

(2013) 200 LGERA 152

(2006) 145 LGERA 189

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