David Lahood v Strathfield Municipal Council; David Lahood Holdings Pty Ltd v Strathfield Municipal Council

RESPONDENT: Strathfield Municipal Council

FILE NUMBER(S) : 60008 of 2007; 60009 of 2007

KEY ISSUES: Appeal :- demolish building without development consent - fill, level and apply roadbase without development consent - severity of sentence - appeals dismissed

Crimes (Sentencing Procedure) Act 1999 s 3A LEGISLATION CITED: Criminal Procedure Act 1986 Ch 4, Pt 5 Environmental Planning and Assessment Act 1979 s 76A, s 125(1)

CASES CITED: Keir v Sutherland Shire Council [2004] NSWLEC 754

APPELLANTS: David Lahood in person LEGAL REPRESENTATIVES: RESPONDENTS: Ms JL Blunden (sol) Houston Dearn O'Connor

JUDGMENT:

• 7 - IN THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

DAVID LAHOOD v STRATHFIELD MUNICIPAL COUNCIL [2007] NSWLEC 714

DAVID LAHOOD HOLDINGS PTY LIMITED v STRATHFIELD MUNICIPAL COUNCIL [2007] NSWLEC 714

EX TEMPORE JUDGMENT 1 HIS HONOUR: On 24 April 2007, the appellant, Mr David Lahood was convicted and fined in Burwood Local Court following a plea of guilty for two offences against s 125(1) and 76A of the Environmental Planning and Assessment Act 1979 (the EP&A Act). The first offence was that between 12 July 2006 and 17 July 2006 he demolished a building at No. 89 Park Road, Homebush without a development consent. The second offence, to which he also pleaded guilty and for which he was convicted and fined, was that he filled, levelled and applied road base at the premises No. 89 Park Road, Homebush without obtaining development consent. 2 On the same day the appellant David Lahood Holdings Pty Limited was convicted and fined following a plea of guilty of the offence of demolishing a building at No. 87 Park Road, Homebush without development consent, and also a second offence as to which the appellant, David Lahood Holdings Pty Limited was also fined and convicted following a plea of guilty, the offence being filling, levelling and applying road base at the premises No. 87 Park Road, Homebush without the development consent. 3 The magistrate imposed a fine on Mr David Lahood of $20,000 for the first offence, that is demolishing a building without development consent, and $25,000 for the second offence, that is filling, levelling and applying road base without consent. The magistrate also imposed a fine on David Lahood Holdings Pty Limited of $20,000 for demolishing a building without development consent and a fine of $25,000 for filling, levelling and applying road base without development consent. 4 The relevant facts may be briefly described. Number 89 Park Road is owned by David Lahood and, as I understand it, prior to the offences there was an existing dwelling house erected on that land. Number 87 Park Road is owned by David Lahood Holdings Pty Ltd and, as I understand it, there was a separate dwelling house standing on that land. 5 The Strathfield Planning Scheme Ordinance 1969 applies to the land. Both properties are zoned 10 Mixed Use under that instrument and the ordinance requires development consent for the demolition of buildings greater than twenty-five square metres. The ordinance also requires development consent for the filling, levelling and applying of road base to the land. 6 On 7 July 2006 the council's manager of compliance, Robyn Druce, confirmed an advice she had given to Mr Lahood on 3 July 2006 that development consent was required to demolish a dwelling on the subject land. On 12 July 2006 Robyn Druce attended the premises after receiving a complaint and observed that demolition was in the process of being carried out. She spoke to Mr Lahood and advised him again that development consent was required to demolish as the dwelling was greater than 25 square metres. She then sent a facsimile to Mr Lahood which, although the facsimile is dated 12 July 2006, appears was not sent until Friday 14 July 2006 at about 9.41 am according to the fax confirmation sheet. The fax states:

Here is a copy of the exemption circumstances for demolishing. Note: the building cannot be bigger than 25m2. You will need to apply to demolish. 7 Attached to the facsimile was a table setting out the circumstances under which an exemption for obtaining development consent is required. The table under the heading, "Demolition", states "the structure to be demolished is not greater than 25m2" and "WorkCover Authority's Guidelines for Practices Involving Asbestos Cement in Buildings". In the present case the building that was demolished was in each case greater than 25 square metres. 8 The defendant says that on Friday 14 July 2006 he attended at the council's offices and spoke with the council's duty planner, Tara Kalpage. It seems that he told Ms Kalpage what he proposed to do. Ms Kalpage, according to the agreed statement of facts tendered in the Local Court, told Mr Lahood to write on the development application what he wanted to do and to show the area proposed to be road based and a statement of environmental effects and a waste management plan. 9 On 19 July 2006 the council received a development application from Mr Lahood. That application related to both premises and was for the demolition of the dwellings and to road base the area. On 21 August 2006 the council issued a notice of determination refusing the development application. 10 On 30 July 2006, 1 August 2006 and 2 August 2006 Ms Druce attended the premises and observed that several piles of fill had been placed on 87 Park Road Homebush. On 9 August 2006 she observed a bobcat levelling the piles of fill on both of the premises 87 and 89 Park Road Homebush. 11 On 15 November 2006, Ms Druce noted that approximately half of the subject premises had been laid with road base and on 17 November 2006 an inspection by Ms Druce disclosed that the remainder of the subject premises had been covered in road base. 12 The dwellings that were demolished were constructed of fibro and brick and may have contained asbestos. Mr Lahood says that the asbestos was properly controlled and disposed of by people who are experienced in doing that sort of work as I understand his evidence. 13 The question before me is the appropriate penalty to be now imposed as a result of these offences. It has to be observed and stated that these are strict liability offences. That means that an offence is committed even though the person committing the offence may not have believed that he or she was committing an offence. 14 The relevant principals are firstly contained in the Crimes (Sentencing Procedure) Act and in particular the provisions of s 3A of that Act which set out the purposes of sentencing. They 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 and (g) to recognise the harm done to the victim of the crime and the community. 15 In this case it is the community which is the victim because the community has expressed through the legislation the need for proper planning controls and the observance of those controls.

16 The primary consideration in any sentencing exercise is the objective gravity or seriousness of the offence. In the present case the objective gravity or seriousness of offence is reflected in the maximum penalty fixed by the legislature. In this case the maximum penalty is $1.1 million. Such a large penalty indicates the gravity of the offence as perceived by the legislature and the community that the legislature represents, and it is also a reflection by the parliament of the seriousness of the offence. 17 In the present case I am satisfied that the offender in each case, that is Mr Lahood and the corporate defendant through its sole director, Mr Lahood, were fully aware of the need to obtain development consent. This much appears from the evidence to which I referred, and in particular the facsimile sent to Mr Lahood on Friday 14 July 2006 attaching the schedule showing the circumstances under which an exemption from obtaining development consent is required. The fact that Mr Lahood understood that development consent was required is confirmed by the fact that he did in fact lodge a development application both to demolish and to fill and provide road base to the land. 18 The next consideration is that of general deterrence. That is a major consideration in any sentencing exercise and as I have said it must be borne in mind that the offence here is one of strict liability. There is thus an onus on those who carry out development, including demolition work, to ensure that any necessary consent has been first obtained. 19 Section 125 of the EP&A Act prohibits people from offending against a direction or prohibition provided for under that Act, and s 76A provides that if an environmental planning instrument provides the specified development may not be carried out except with consent, a person is prohibited from carry out that development unless it is carried out in accordance with a consent. 20 Critically the planning system as a whole would be rendered ineffective if developments were allowed to continue without or in contravention of development consents. In Keir v Sutherland Shire Council [2004] NSWLEC 754 the then Chief Judge of the court highlighted the particular need for general deterrence in relation to contraventions of development consents. Relevantly his Honour stated that the court must impose a penalty which is not only appropriate with respect to the actions of the offender, but also sends a strong warning to others who carry out development work that a breach of the law will be visited with significant financial consequences. 21 The next consideration is one of specific deterrence. I am inclined to the view that the defendant in each case here is unlikely to re-offend. 22 The magistrate, as I have noted, has imposed the penalties which I have earlier indicated. In my view the appropriate penalties for these offences, having regard to other cases of a like nature decided in the court, would normally call for a penalty in the following range. As I have said, these are strict liability offences and for the demolition that was carried out without consent the appropriate penalty in my view ought to have been $30,000, which would be reduced by twenty per cent in the light of the plea of guilty to $24,000 in each case; and for the filling and placing of roadbase in my opinion the appropriate penalty ought to have been $35,000, again reduced to $28,000 in each case. 23 As I have noted, the magistrate imposed $20,000 and $25,000 respectively. However, since the penalties imposed by the local court magistrate are within the appropriate range of penalties, I am not prepared to disturb the local court's orders in this case.

24 The formal orders of the court therefore are: 1. The appeals are dismissed. 2. The appellant in each case is ordered to pay the prosecutor's costs in accordance with Ch 4, Pt 5, Div 4 of the Criminal Procedure Act 1986 . 3. The exhibits may be returned. I hereby certify that the preceding 24 paragraphs are a true copy of the reasons for judgment herein of the Honourable Mr Justice D H Lloyd.

Associate ***************

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