El Cheikh v City of Canterbury Council

Land and Environment Court (NSW)|2015-11-25|Before: Sheahan J, Mr J

Solicitors: Magna Carta Lawyers (Appellant) Pikes & Verekers Lawyers (Respondent) File Number(s): 60576 of 2015 Decision under appeal Court or tribunal: Burwood Local Court Jurisdiction: Criminal Date of Decision: 14 April 2015 Before: Magistrate Still File Number(s): 16754 of 2015

Introduction

This is an appeal in Class 6 of the Court's jurisdiction against the claimed severity of a penalty imposed upon Mr El Cheikh by the Local Court at Burwood on 14 April 2015.
The learned magistrate imposed a penalty of $20,000, inclusive of costs amounting to $5,400, so the question for this Court on appeal comes down to the appropriateness of a fine of $14,600 for the offence charged, namely carrying out development without, or, not in accordance with, consent.
Counsel for Mr El Cheikh accepts that the appellant should pay the $5,400 for costs, but either no or only a minimal fine - he suggests $4,000 (subs par 46).
The Council has not sought any increase in the fine, and the parties to the appeal are agreed that they should each pay their own costs of it.

This Appeal

The Prosecutor appropriately did not oppose either the application for leave to appeal out of time, nor the introduction of fresh evidence by the appellant.
Mr El Cheikh relied upon his affidavit of 7 October 2015, supplemented by short oral evidence, tested by cross-examination, both largely concerned with his financial position.
The appellant is a 68 year old pensioner. He has no criminal record, and the prosecutor accepts he is of good character. He has five adult children from an earlier marriage, and his present wife and carer is expecting their fourth child (under 6).
He owns the subject property at 98 Ernest Street, Lakemba, upon which there are now two dwelling houses, and it is unencumbered. He says he financed the property from a land sale in Lebanon, and the works with some help from family.
His doctor has certified to a number of "medical problems" requiring medication.
The chronology of relevant events can be summarized from the Court Book as follows: 1. 28 March 2011 - Development Consent granted for alterations and additions to the then existing dwelling, and construction of a secondary dwelling (or "granny flat") and garage on the subject land; 2. 19 December 2013 - Modification approved, imposing specific conditions requiring: 1. erection of boundary fences (5.1); 2. removal or setback of any encroachments to enable construction of the fencing (5.2); 3. engagement of a suitable engineer to recommend and later certify remedial action to ensure structural integrity of the driveway, prior to the issue of an occupation certificate (5.3); and 4. obtaining an occupation certificate "before partial/entire occupation of the development" (5.8). 1. 17 June 2014 - (a) the appellant left Australia for what he says was a "holiday", and (b) his certifier served notice of intention to issue an order; 2. During 2014, Council received complaints and conducted inspections which revealed certain breaches of the consent, both in terms of works, and unauthorized occupation of the granny flat. Notices and Orders were issued on 8 August, 8 September, and 25 September 2014. 3. 23 October 2014 - the appellant returned to Australia; 4. 28 October 2014 - after the appellant returned to Australia, an inspection revealed continued occupation of the granny flat, and a penalty infringement notice was issued to the appellant, who elected to exercise the "court option"; 5. 22 and 23 January 2015, and 27 February 2015 - further inspections revealed continued occupation, and, on 27 February 2015, a letter of demand was served, inviting the appellant to give Council a written undertaking; 6. 3 and 24 March 2015 - first two mentions at the Local Court. A plea of guilty was entered on the second date, and the matter adjourned to 14 April 2015 for sentence; 7. 26 March 2015 - the appellant signed the written undertaking to not occupy, or "use or cause to be used", the granny flat as a dwelling, until an occupation certificate was issued. 8. 14 April 2015 - sentencing hearing at Burwood Local Court.
As at the date of the sentencing hearing, not all the required remediation works had even been commenced (see Tpp1 - 2), and Mr El Cheikh's solicitor explained: "all starting tomorrow" (p2, LL12 - 13), and "he's had difficulties with a certifier" (p2, L42).

The Judgment

The learned magistrate hesitated to sentence before the work was done. He said (Tp3, LL17 - 26): Your client's dillydallying all over the place, he's dragging it out, he's occupying the flat. He's taken no remedial work whatsoever despite constant attendances to the property and there's no doubt that the people in that property knew what had to be done. I'm not going to go to penalty on your client till he fixes everything. He's not to occupy the granny flat from today. He's to allow access to council at any time they like. He's to remove the encroaching slab on the adjoining property. He's to remove the encroaching driveway on the adjoining property and he's to erect the fence. Then I expect council to inspect it, or else be satisfied by what the certifier tells them, and sign off on it. Then I'll proceed to sentence.
When later deciding to proceed to sentence, the magistrate said (Tp6, LL36 - 45): I'm not interested in undertakings on what your client will do. There's a persistent breach. The council says it's low to medium. I agree with them. The penalty starts at 100,000 bucks. Your client is somewhere in the range towards the bottom, round about 20 per cent, with a discount for plea. That's where your client is at the moment, based on those submissions, because there has been a deleterious affect by your client's work and he's thumbed his nose at the requirements for occupation of the premises, without doing anything. So yes I will, I will make a decision on penalty today. I will make a decision on costs. If you've got problems with costs, sort them out with Mr Jackson please.
Not all prosecution submissions were transcribed, but Mr El Cheikh's then solicitor noted (Tp7, LL20 - 21) that the appellant "did enter an early plea after receiving legal advice", and the Magistrate concluded (Tp7, LL23 - 38): Okay I have already said my assessment in relation to the criminality and the breach is towards the lower end. I have already thought in relation to that matter that an appropriate penalty would be $20,000. I am told that the costs should be factored into that figure and I think that is right. The development approval has been breached by early occupation of the granny flat for which the defendant has obtained a benefit. The adjoining premises have been adversely affected by the failure of removing encroachments on that premises by either a slab and/or the driveway. That work still remains to be done. It was a clear condition of the approval, either the slab was to be removed any driveway was not to encroach, and the fence has never been erected even though they were all clear requirements of the approval and nothing has been done despite countless visits to the premises I THINK AN APPROPRIATE PENALTY IS $20,000 TO INCLUDE THE COSTS THAT THE COUNCIL HAS OR WILL HAVE TO BEAR.
It would be fair to conclude from the transcript that the Magistrate applied the amount of costs as amounting to an approximately 25% discount on his suggested penalty ($20,000), on account of the guilty plea, leading to the "rounded-up" penalty he imposed of $20,000 inclusive of the costs, an itemised statement of which costs was before him.
The appellant effectively appealed on 8 May 2015, and then instructed a new solicitor.
He obtained a Final Occupation certificate on 15 July 2015.

Discussion

The sentencing principles are well-established and well-known, and they are common ground between the representatives of the parties to today's appeal.
As I noted in Alramon (at [55]), general deterrence is an important objective in sentencing for offences such as this.
The objective seriousness of the offence is quite low, but I do not accept Mr Milanovic's submission (par 21) that it is "at the lowest end of the scale and able to be characterized as work in progress or incomplete work".
On the other hand, I do accept that, from June to October 2014, the appellant was not personally in occupation of the premises; but it is clear from the uncontested inspection reports that members of his large family occupied them.
In short, while, strictly speaking, this offence might not be as serious as those involving substantial construction works done without consent, the appellant took the full benefits of having a consent.
However, although he was well on notice of the conditions of consent, for a long time, he did not obey them, and he ignored the Council charged to enforce them.
His damaging breaches commenced in December 2013, and were not remedied until July 2015.
Some environmental harm was caused to neighbours for some time, and, as frequently occurs, and the integrity of the planning and development regime in NSW was undermined: Willoughby Council v Livbuild Pty Ltd [2015] NSWLEC 34.
On the subjective side, he pleaded guilty early, but his cooperation with the prosecutor commenced only as the sentencing hearing approached.

Conclusion

I think the level of the fine is appropriate, even if higher than the prosecutor sought at first instance ($10,000, in subs par 23), but I am concerned about capacity to pay. R v Rahme ("Rahme") (1989) 43 A Crim R 81, and s 6 of the Fines Act 1996 demand caution on my part. See Environmental Protection Authority v Pal [2009] NSWLEC 35, at [114] - [125] and [131] - [134]
The appellant's financial evidence is not entirely satisfactory - e.g. the Court has not heard how he afforded a four month overseas holiday - but I accept that health and family issues restrict his ongoing capacity to earn, and to pay.
In Rahme, the Court of Criminal Appeal reduced a fine from $22,000 to 5,000, and, in this case, I am prepared to reduce it from $14,600 to $10,000.
The costs order will stand.
I, therefore, order that: 1. The appeal is allowed in part. 2. In lieu of the Local Court's order of 14 April 2015, the appellant is convicted, and fined $10,000 plus costs of $5,400. 3. Each party is to pay its own costs of the appeal.

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: 30 November 2015

(2006) 146 LGERA 349

At a glance

Court

Decision date

Before

Source

Judgment (8 paragraphs)

Parties

Cases Cited (6)