Fairfield City Council v Cavasinni Constructions Pty Limited

Bayley v Leichhardt Municipal Council [2005] NSWLEC 34, unreported; Ebacarb Pty Ltd v EPA [2003] NSWLEC 411, unreported ; CASES CITED: R v O'Neill [1979] 2 NSWLR 582; R v Thompson (2000) 49 NSWLR 383

DATES OF HEARING: 08/04/2005, 13/04/2005 (written submissions), 15/04/2005 (written submissions)

APPLICANT Mr J C Thompson (Barrister) SOLICITORS Ritchie & Castellan LEGAL REPRESENTATIVES:

DEFENDANT Mr G B Newport (Barrister) SOLICITORS Maclarens

THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

50074 of 2004 Fairfield City Council v Cavasinni Constructions Pty Limited

JUDGMENT 1 Talbot J: The defendant has entered a plea of guilty to the charge that between 18 October 2004 and 27 October 2004 it did cause to be carried out development on land at 360-364 The Horsley Drive, Wetherill Park, otherwise than in accordance with a prior development consent granted by the Fairfield City Council ("the prosecutor") on 18 November 2002 pursuant to Fairfield Local Environmental Plan 1994 ("LEP 1994"). 2 The development consent contained condition 17 as follows:- Prior to the commencement of any works, a Construction Certificate is required to be issued by a Principal Certifying Authority. 3 The development comprises a multi-storey commercial and residential building consisting of a two-storey podium level and two residential towers. 4 The following construction certificates have been issued by the Council:-

1. 19 February 2004 Certificate no. 136/04 for piling and bulk excavation of the building.
2. 10 June 2004 Certificate no. 439/04 for formwork to the first floor of the building - grids 8-75 to 16 & A-G.
3. 1 July 2004 Certificate no. 558/04 for the Construction of Suspended Floor for Commercial Space, Post-Tensioned Slabs and Columns to First and Podium Floors with Associated Works. 5 On 18 October 2004 an inspection by Council officers revealed that concrete had been poured for the first two levels of one of the residential towers and a third level had been formed up. The elevator shaft had also been completely poured between the first three levels of the residential tower. During a further inspection on 22 October 2004 Council officers observed steel fixers tying steel reinforcement on the third level of the residential component of the building. Further construction work was observed on 26 October 2004 including preparations for a concrete pour on the fifth floor, the erection of scaffolding external to the building and construction of brickwork for the internal walls of residential units. None of the abovementioned building was the subject of a construction certificate at that time. 6 On Thursday 4 November 2004 the Council issued a building certificate for reinforced concrete floors and columns to levels three, four and five of Tower B and the party walls built on level three. On that same date Construction Certificate no. 386/04 was issued for the whole building excluding the works already approved under earlier construction certificates and the building certificate. 7 Despite advice to the principal of the company, Mr Cavasinni, that work should cease pending the issue of an appropriate construction certificate, the work continued. Mr Cavasinni explained to the Council officers that he could not do so as he had commitments to the owner of the premises to finish the building. He made the following statement on 19 October 2005:- I can't do that I have commitments to the owner of the premises to finish the building. No fine that Council can issue me with can compare to the cost the owner will impose on me if the building is not finished on time .

8 The defendant lodged the application for a Construction Certificate no. 386/04 seeking approval to construct two levels commercial/carpark and 65 units in two towers of the building on 24 May 2004. As mentioned earlier at [6] that Construction Certificate was not issued until 4 November 2004. Mr Cavasinni has explained in an affidavit that he became frustrated "at the continued delay" to the issue of the certificate. Although work ceased on 4 September 2004, because the certificate had not been issued, he decided to recommence work in anticipation of the imminent issue of the construction certificate and in what he believed to be the best interests of the company, its subcontractors and suppliers and the owner of the site. 9 A plea of guilty was entered at the third callover. The evidence of the prosecutor was not completed by the date of the first return of the summons. The evidence was finalised immediately prior to the second callover when the defendant requested an adjournment for 14 days to enable the whole of the evidence to be assessed by its legal advisers before entering a plea. 10 A Statement of Agreed Facts has been prepared. 11 The Statement of Agreed Facts, the affidavit evidence and the plea of guilty establish the essential elements of the offence namely that the defendant did carry out development, namely building work, contrary to the requirements of the condition 17 of the development consent between at least 18 October 2004 and 27 October 2004. 12 The particular offence is against s 76A(1)(b) of the Environmental Planning and Assessment Act 1979 ("the EP&A Act") which provides that development that needs consent must not be carried out unless the development is carried out in accordance with the consent and the relevant environmental planning instrument. Section 76A does not expressly impose a penalty and accordingly the defendant is liable to a penalty not exceeding 10,000 penalty units and to a further daily penalty not exceeding 1,000 penalty units in accordance with s 126(1) of the EP&A Act.

13 However, it has been brought to my attention by Mr Thompson, who appears for the prosecutor, that s 81A(2) of the Act provides that the erection of a building in accordance with a development consent must not be commenced until a construction certificate for the building work has been issued by the consent authority, the council (if the council is not the consent authority) or an accredited certifier. The maximum penalty that may be imposed for a contravention of s 81A(2) is 300 penalty units as provided in s 81A(7). 14 It is not suggested that the building has not been constructed in accordance with the development consent except in respect of condition 17. Condition 17 does no more than reiterate what is required by s 81A(2)(a). However the consequence of the breach of condition 17 is that the defendant is liable to a penalty of $1,100,000 and a daily penalty of $110,000 rather than a maximum penalty of $33,000 for contravention of s 81A(2). The gratuitous insertion of condition 17 as a condition of development consent has prima facie elevated the seriousness of the offence by a significant degree. At the conclusion of the hearing I directed the parties to make written submissions regarding the extent to which the apparent dichotomy between the two penalty provisions could be taken into account for the purpose of determining the appropriate penalty. These submissions have been made. 15 After recognising the very wide discretion that resides in a sentencing judge and referring to the regulation of sentencing procedure generally in Part 3 of the Crimes (Sentencing Procedure) Act 1999 ("the Procedure Act"), Mr Thompson makes the following submission:- It is submitted that if the Court is required to deal with the offence under the provisions of s. 126(1) then the very wide discretion available to the Court would enable it to have regard to the provisions of s. 81A and the disparity between the penalties provided in each section. 16 Mr Newport, who appears for the defendant, submits that relying on the authority of s 21A(1)(c) of the Procedure Act the consideration of a lesser penalty is a matter that may be taken into account as a "factor that affects the relative seriousness of the offence" where, as in this case, the same conduct might have resulted in a lesser charge but for the selection by the prosecution. 17 A court needs to be careful not to regard the seriousness of a major matter with which a defendant was originally charged when the defendant has pleaded to quite a minor charge that attracts a significantly lesser sentence. On a plea to the lesser matter, sentence is not properly passed on a view of the offence which could constitute it as a more serious offence (R v O'Neill [1979] 2 NSWLR 582). The opposite applies here as essentially the same version of the facts equally supports the lesser charge which the prosecutor has either elected not to pursue or was not cognisant of at the time the proceedings were commenced. The decision in O'Neill would appear to be based on a consideration of fairness (see Moffitt ACJ at 590). Mr Newport submits that in the present circumstances a consideration of the lesser penalty will not raise any issue of unfairness. 18 A determination of an appropriate sentence includes "a wide range of incommensurable, and sometimes conflicting objectives, - deterrence, retribution, rehabilitation and public condemnation - which must be brought together …in what the Full Court of the Supreme Court of Victoria has aptly described as an "instinctive synthesis""(R v Thompson (2000) 49 NSWLR 383 at [55]. It was embraced by Spigelman CJ at [57] as the correct general approach to sentencing. 19 Mr Newport has referred me to a decision by Bignold J in Bayley v Leichhardt Municipal Council [2005] NSWLEC 34, unreported to support an argument that when determining penalty a court can have regard to an alternative remedy for the purposes of understanding the objective gravity of an offence under s 125. Bignold J does not appear to have been referred to the contrary decision of the New South Wales Court of Criminal Appeal in R v Doan ((2000) 50 NSWLR 115 particularly at [35] and decisions of this Court including Ebacarb Pty Ltd v EPA [2003] NSWLEC 411, unreported when he decided that on appeal from a magistrate, the appropriate maximum penalty to be regarded as a reflection of the seriousness of the offence is the penalty provided in respect of a hearing in the Local Court rather than in the Land and Environment Court. However that oversight does not appear to detract from his more general consideration in respect of the "panoply of powers (both civil and criminal) to achieve compliance with the several requirements of the Act." His Honour made the following observation in Bayley at [20]:- The availability of civil remedies to enforce a statutory enforcement order, in my judgment, inevitably exerts some bearing upon the proper understanding of the objective gravity of an offence under the EP&A Act, s 125 constituted by a failure to comply with a statutory enforcement order (including a fire safety order). 20 After reflecting upon the actions of the Council, which he critically regarded as a resort to the criminal process in order to enforce compliance with a statutory order and which he described as more the objective of civil enforcement than the objective of criminal enforcement to punish offenders and to deter potential offenders, Bignold J determined that the objective gravity of the admitted offence, within the overall spectrum of potential gravity of offences against the EP&A Act s 125 was "significantly lessened." A direct analogy between the circumstances in Bayley and the present case cannot be drawn but the decision allows some insight into the overall working and interaction between the comprehensive provisions of the EP&A Act. 21 In the light of the concession made by Mr Thompson that the Court, in the exercise of its discretion on sentencing, may take into account the lesser penalty provided by s 81A of the EP&A Act, it is clearly open for me to do it in this particular case without finally deciding whether as a matter of law I am so entitled. I will proceed on the basis that the alternative penalty provided by s 81A is but one of the factors to be taken into account in determining the relative seriousness of the offence as part of the "instinctive synthesis" in the process of determining a final penalty. 22 The facts show that the defendant acted in capricious disregard of the requirement of the law that a construction certificate was required before building work is commenced. This was done notwithstanding a number of express warnings not to continue to carry out the work once it had commenced. Any delay by the Council in issuing an appropriate certificate is not an excuse. The motive for carrying out the work illegally was entirely one of self interest in economic terms. A belated attempt to justify part of the work as a safety measure does not reflect well upon the defendant and moreover the justification was not made good. 23 The lack of any prior record is a mitigating factor under s 21A(3)(e) and there is some expression of remorse in an affidavit sworn by Mr Cavasinni. 24 In the circumstances I am prepared to regard the plea of guilty at the third callover as being entered at a time that attracts the benefit of a discount on the penalty that would otherwise apply (R v Thompson). 25 Although the actual maximum penalty that applies in respect of the charge is $1,100,000 it is evident that the legislature regards the offence of failing to obtain a construction certificate after development consent has been obtained as significantly less serious. In essence the charge is commensurate with an offence under s 81A(2)(a). As an offence under s 81A(2)(a) it would be regarded in context as serious because of the blatant and deliberate disregard of the requirements of that section. When considered as an offence under s 125 it must be assessed against the wide range of offences that can arise under the general provisions of the EP&A Act. The maximum penalty provided for in s 126 contemplates the most serious breaches of the Act that could lead to the direst of consequences for the environment. In the latter context the seriousness of the offence is at the lower end of the scale, but not the lowest. In either case the result is essentially the same. 26 After taking into account all of the relevant criteria including general and individual deterrence and the mitigating factors referred to, I determine that the appropriate penalty in the circumstances is $20,000. The Council has not demanded a daily penalty. No submission has been made by the defendant under s 10 of the Procedure Act. Accordingly I find the offence proved and proceed to conviction of the defendant for the offence charged and impose a monetary penalty in the sum of $20,000. There is no argument that the defendant should not pay the Council's costs. Orders 27 I make the following orders:-

1. The offence is proved.
2. The defendant is convicted of the charge in the summons.
3. The defendant is ordered to pay a monetary penalty in the sum of $20,000.
4. The defendant is ordered to pay the Council's costs.
5. The exhibits may be returned.

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