Cumberland Council v Badaoui Habib

Cumberland Council v Badaoui Habib - [2017] NSWLEC 18 - NSWLEC 2017 case summary — Zoe

[3]

Statement of Agreed Facts

For each of the charges the parties agreed a separate statement of facts in almost identical terms, except for separate definitions of the lots (Exhibit 1 and Exhibit 2 with some corrections noted on the transcript). Relevant sections are extracted as follows (footnotes and annexures are omitted): Introduction 1 That between 6 September 2015 and continuing up until 12 May 2016, the defendant did carry out development on Lot 23 in DP 3088 to which an environmental planning instrument applied being development which pursuant to the environmental planning instrument may not be carried out except with development consent where a development consent had not been obtained and was not in force. The Land 2 The property at 55 Cecil Street, Guildford [contains] two lots, Lot 23 and Lot 24 in DP 3088 ('the Land'). 3 The Land at which the development took place was Lot 23 Sec 8 DP 3088 otherwise known as 55 Cecil Street, Guildford, hereafter referred to as "Lot 23". 4 Lot 23 and Lot 24 [are] within the authority of Cumberland Council. 5 Cumberland Council ('the Council') subsumed Holroyd City Council as a consequence of the Local Government (City of Parramatta and Cumberland) Proclamation 2016. 6 The Holroyd Local Environmental Plan 2010 ("the LEP"), being an environmental planning instrument, applied to Lot 23 and Lot 24 at the date of the offence, is still in force, and continues to apply to Lot 23 and Lot 24. 7 Lot 23 and Lot 24 are zoned R2 Low Density Residential in the LEP. 8 Lot 23 and Lot 24 are located on the western side of Cecil Street, Guildford, and Lot 23 is located on the southern side of Lot 24. 9 Lot 23 and Lot 24 are owned by Hanna Habib ('the owner'). 10 Development for the purpose of a dwelling house is permissible with consent in the R2 Low Density Residential zone pursuant to the Land Use Table in the LEP. 11 Development for the purpose of a Granny flat is permissible with consent in the R2 Low Density Residential zone pursuant to the Land Use Table in the LEP. 12 The development on Lot 23 and the Development on Lot 24 are not exempt development for the purposes of State Environmental Planning Policy (Exempt and Complying Development Codes) 2008. The Development on Lot 23 13 The Development carried out by the defendant on Lot 23 comprise the following: (a) The construction of a detached two storey dwelling containing a garage with a roller door, kitchen, laundry, five (5) bedrooms and living areas ('the Lot 23 Dwelling'); (b) The Construction of a detached granny flat containing a kitchen, two (2) bedrooms, a bathroom and laundry ('the Lot 23 Granny flat'); 14 The Lot 23 Dwelling is approximately 250sqm in size. … The Defendant 16 The defendant is the brother of the owner. 17 The defendant, his servants and agents carried out the development on the Land. 18 The defendant admitted to the Council that he knew he did not possess or had not yet obtained approval to carry out the development. 19 The defendant was advised on or about March 2015 by a licensed builder that before he could carry out building works for the defendant he would need to obtain 'Home Warranty Insurance' that he did not have at that time. 20 Sometime thereafter, on or about November 2015, the defendant approached the builder again and asked if he had insurance. The builder advised the defendant that he needed to find a certifier to fix things up. 21 The defendant […] had done previous developments and was aware that he required approval. … 23 The owner left it to the defendant to obtain the necessary approvals. 24 The defendant spoke to a builder before he commenced building works, but the paper work was taking too long so he went ahead and commenced building works. The Facts 25 On 19 March 2015, Dvyne Design Architecturals made a development application for the "demolition of all existing structures" on Lot 23 and Lot 24 ('the DA'). 26 On 26 March 2015, the DA was approved and a development consent was granted, subject to conditions ('the demolition consent'). 27 On 7 September 2015, the Council undertook an inspection and confirmed that all work pertaining to the demolition consent was carried out satisfactorily. 28 On 7 October 2015, the Council granted an approval under section 68 of the Local Government Act 1993 for stormwater connection to the Lot 23 and Lot 24. 29 On 12 May 2016, Mr Bradley Ferguson attended the Land to conduct an inspection. At that time he met with a person, the defendant, at the front door of the dwelling constructed upon Lot 23 at 55 Cecil Street, and had a conversation with him: Mr Ferguson said "Council has had a report that these houses have been constructed without any form of approval. Do you mind if I have a look?" The defendant said "No of course not, come in." 30 During the inspection, Mr Ferguson made observations of the development on the Land and took photographs. Mr Ferguson observed that 31 Lot 23 was being occupied by the defendant and his family. The Lot 24 building contained a garage with a roller door, kitchen, laundry, five (5) rooms that appeared to be bedrooms and living areas. The Lot 24 granny flat contained a kitchen two (2) bedrooms a bathroom and laundry. … 33 Mr Ferguson then returned to Council's Office and conducted a search of Council's records, and could find no development consent for a new dwelling structure and/or granny flat upon Lot 23 and Lot 24. In addition, there are no records of Council receiving any Complying Development Certificate. … 41 Mr Ferguson then reviewed the plans and these appear to reflect the layout and configuration of the buildings he inspected on 12 May 2016. 42 On 25 May 2016, Mr Ferguson spoke with both the owner and the defendant in Council's offices. The owner stated that his brother, the defendant is the builder for the development. The defendant made admissions that he did not have any approval to carry out the development and [that] he organised the development. 43 Building Certificate No. 2016/96 was received by Council on 15/12/16 and is currently being assessed. 44 Development Application No. 2016/590 was received by Council on 21/12/16 and is currently being assessed.

[8]

The nature of the offence

Given that this case centres around development works, a key consideration for this Court to take into account is the need to uphold the statutory scheme for orderly planning in NSW, provided for in the EPA Act: see e.g. Canterbury-Bankstown Council v Naji [2016] NSWLEC 101; Menai and Burwood Council v Doueihi [2013] NSWLEC 196; (2013) 200 LGERA 152. As noted by Preston CJ of LEC in Pittwater Council v Scahill [2009] NSWLEC 12; (2009) 165 LGERA 289 at [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) 143 LGERA 155 at [60]-[61]; Cameron v Eurobodalla Shire Council at [72]-[80]; Byers v Leichhardt Municipal Council [2006] NSWLEC 82 at [83], [85]; Gittany Constructions Pty Ltd v Sutherland Shire Council at [104]; and Garrett v Freeman (No 5) (2009) 164 LGERA 287 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 at [105].
In considering the statutory scheme for orderly planning in NSW it is instructive to have regard to the objects of the EPA Act as outlined in s 5: 5 Objects The objects of this Act are: (a) to encourage: (i) the proper management, development and conservation of natural and artificial resources, including agricultural land, natural areas, forests, minerals, water, cities, towns and villages for the purpose of promoting the social and economic welfare of the community and a better environment, (ii) the promotion and co-ordination of the orderly and economic use and development of land, … (vi) the protection of the environment, including the protection and conservation of native animals and plants, including threatened species, populations and ecological communities, and their habitats, and …
Planning approvals are one means by which the State government seeks to achieve these objects, and to ensure the efficient and sustainable development of New South Wales. These approvals are central to maintaining the integrity of the NSW planning system, and this informs the consideration and assessment of the seriousness of an offence. Offences which undermine the integrity of the regulatory scheme are objectively serious, see Secretary Department of Planning and Environment v Boggabri Coal Pty Limited [2014] NSWLEC 154 at [19].
In this case, the prosecutor submitted that the offences reflect a "major flaunting" of the NSW planning scheme, as the defendant's actions were self-serving and were conducted without any regard to the proper approval process. To support this submission, the prosecutor claimed that the offences were committed in circumstances where the defendant was aware that he needed approval, as he had previous experience with development works and the steps required to gain approval, and indeed the defendant had obtained the authority of the owner to lodge a development application.
The objective seriousness of the offences are further aggravated, according to the prosecutor, by the fact that the Developments were significant - comprising of two two-storey dwelling houses and two detached granny flats. I accept this submission and find that the defendant's conduct objectively amounts to a serious infringement which undermines the integrity of the planning regulatory scheme.

[12]

Defendant's state of mind and reasons for committing the offence

In determining the appropriate penalty for an offence, it is relevant to consider the defendant's reasons for committing the offence, see Axer Pty Ltd v Environment Protection Authority (1993) 113 LGERA 357 at 366. A strict liability offence that is committed intentionally, negligently or recklessly will be objectively more serious than one not so committed, see Gittany at [123]. Pursuant to s 21A(2)(o) of the CSP Act, it is an aggravating factor if the offence was committed for financial gain. This was initially raised by the prosecutor, but later abandoned. I accept that the offences were not committed for financial gain.
The prosecutor noted in oral submissions that the defendant was told in December 2015, after he had commenced the development works, that he would need to "fix things up", yet despite these warning signs the defendant continued with the development works. Accordingly, the prosecutor submitted that the offences were premeditated, committed intentionally and were planned, controlled and coordinated. The prosecutor further submitted that the defendant's reasons for committing the offences, which the prosecutor stated were frustration with the delay and a reliance on others, were insufficient and did not mitigate the seriousness of the offences.
The defendant accepted that the reason for his commencing work on the Developments was frustration, however claimed that this frustration was directed at the delay in obtaining Home Owner's Warranty insurance. The defendant contested the prosecutor's submissions, submitting that while he knew that he needed approval to carry out the Developments, he did not know that the approval needed to be in place before commencing the development works altogether. Rather, the defendant claimed that he relied on conversations with others (including a building designer and building certifier), and was under the impression that the approvals required were Home Owner's Warranty insurance, driveway crossover and an approval under s 68 of the Local Government Act 1993 (NSW).
In response to the prosecutor's submission that the defendant had previously undertaken development work and therefore was aware of the need to obtain development consent, the defendant submitted that the approval process that he underwent in respect of the earlier developments was different from the process required in the present case, and therefore it cannot be said that the defendant had experience with the particular planning approval process relevant to the present development works. In summary, the defendant submits that he suffered from a misunderstanding as to the planning approvals necessary to commence development works, and that he was not aware of the seriousness of commencing works before obtaining the main development approval.
In relation to intent to commit the offences, the defendant accepts that from January 2016 he became aware of the requirement to have a development consent before continuing with the development works. While the defendant therefore accepts that intent was present as of January 2016 to when the works were completed in May 2016, the defendant submitted that this goes to an intention to complete the works once commenced, rather than an intention to commence works in breach of the planning laws.
I accept the prosecutor's submissions and find that, although there may have been some doubt early in the building programme, there is no doubt that the defendant continued to build and complete two substantial developments while knowing that appropriate approvals had not been given. It is significant that the defendant, irrespective of the circumstances at the commencement of the work, completed the building works in the knowledge that the requisite development consent had not been obtained.

[19]

Deterrence

Deterrence is an important consideration in sentencing for environmental offences. As stated by Mahoney JA in Axer Pty Ltd v Environment Protection Authority (1993) 113 LGERA 357 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 to deter those engaged in such activities and to procure that they will take the precautions necessary to ensure that it does not occur. … The legislation does not seek merely to prevent deliberate or negligent pollution. It envisages that, at least in many cases, proper precautions must be taken to ensure pollution does not occur.
A key purpose of deterrence is to ward against others committing similar offences on the assumption that they will be 'let off' with a light punishment, see Environmental Protection Authority v Waste Recycling and Processing Corporation [2006] NSWLEC 419; (2006) 148 LGERA 299 at [228].
As identified in s 3A of the CSP Act, the Court serves an important deterrent purpose when imposing a sentence, both in the sense of deterring future wrongdoing committed by the offender and deterring wrongdoing by the general public. The converse would lead to a situation in which people would flout laws expecting that, if caught, their punishment would not be too severe (in other words that the benefit of committing the offence outweighs the costs).
Particularly in relation to offences such as the ones in this case, the Court plays an important role in ensuring the integrity of the planning system and in punishing those who transgress the stipulated procedures for development works, see Pittwater Council v Scahill [2009] NSWLEC 12; (2009) 165 LGERA 289 at [42]-[46]. The planning system operates to ensure that individual developments are considered in the scheme of developments around the State as a whole, are compliant with safety and other standards, and are properly maintained for both aesthetic and practical purposes. It is not in the public interest for persons to undertake building works, particularly significant works, without the relevant consent.
The prosecution submitted that this case concerns both general and specific deterrence, as the defendant must be discouraged against similar conduct in the future. The defence accepted that there is a need for general deterrence for a case of this nature, however submitted that it was unlikely the defendant would re-offend and therefore no need for specific deterrence.
Given the defendant's early guilty plea, lack of prior convictions, good character, and the unlikelihood of him re-offending, I find the need for specific deterrence is comparatively low. I find that the need for general deterrence is particularly relevant in the present circumstances.

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