[2024] NSWCCA 4
Botany Bay City Council v Saab Corp Pty Ltd (2011) 183 LGERA 228
[2009] NSWLEC 137
Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1
[2010] NSWCCA 194
Elias v The Queen (2013) 248 CLR 483
[2013] HCA 1
Elyard v R (2006) 45 MVR 402
Source
Original judgment source is linked above.
Catchwords
[2024] NSWCCA 4
Botany Bay City Council v Saab Corp Pty Ltd (2011) 183 LGERA 228[2009] NSWLEC 137
Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1[2010] NSWCCA 194
Elias v The Queen (2013) 248 CLR 483[2013] HCA 1
Elyard v R (2006) 45 MVR 402[2006] NSWCCA 43
Environment Protection Authority v Ghossayn Group Pty LtdEnvironment Protection Authority v Ghossayn [2023] NSWLEC 127
Environment Protection Authority v Waste Recycling and Processing Corporation (2006) 148 LGERA 299[2006] NSWLEC 419
GAS v The Queen (2004) 217 CLR 198[2004] HCA 22
Giorgianni v The Queen (1985) 156 CLR 475[1985] HCA 29
Hawkesbury City Council v Foster and Mushroom Composters Pty Ltd (1997) 97 LGERA 12[1997] NSWCA 141
Hili v The Queen (2010) 242 CLR 520[2010] HCA 45
Mansour v R (2011) 209 A Crim R 275[2011] NSWCCA 28
Markarian v The Queen (2005) 228 CLR 357[2005] HCA 25
R v Borkowski (2009) 195 A Crim R 1[2009] NSWCCA 102
R v Thomson (2000) 49 NSWLR 383
Judgment (31 paragraphs)
[1]
fine in order 2 to the Registrar of the Land and Environment Court, who is to pay such fine to Georges River Council pursuant to s 694(1) of the Local Government Act 1993 (NSW).
(4) Mr Ahmad El Saadi is to pay the prosecutor's costs of one-half of the amount as may be determined under s 257G of the Criminal Procedure Act 1986 (NSW).
(f) in proceedings 2023/237812 (erection of building):
(1) Mr Ahmad El Saadi is convicted of the offence against s 9.50(3A) and s 4.2(1)(b) of the Environmental Planning and Assessment Act 1979 (NSW), as charged.
(2) Mr Ahmad El Saadi is fined $18,750.
(3) Mr Ahmad El Saadi is to pay the fine in order 2 to the Registrar of the Land and Environment Court, who is to pay such fine to Georges River Council pursuant to s 694(1) of the Local Government Act 1993 (NSW).
(4) Mr Ahmad El Saadi is to pay the prosecutor's costs of one-half of the amount as may be determined under s 257G of the Criminal Procedure Act 1986 (NSW).
Catchwords: OFFENCES AND PENALTIES - sentence - aiding, abetting, counselling or procuring another person to commit an offence - offence of carrying out development otherwise than in accordance with development consent - alteration and additions to a dwelling house - objective seriousness of offences - nature of offending - intention an element of secondary participation in offence - not aggravating factor - no harm to environment - no foreseeability of harm - no practical measures to prevent harm - full control over causes of offences - offences not committed for financial gain - low objective seriousness - subjective circumstances of offenders - early guilty plea - remorse - no prior convictions - good character - unlikelihood of reoffending - general deterrence - review of appropriate penalties - totality of sentences - substantial overlap between offences - close relationship between corporate and individual offenders - fines reduced - no additional orders appropriate - application of fines when recovered - process for - costs
Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A
Criminal Procedure Act 1986 (NSW), s 257B
Environmental Planning and Assessment Act 1979 (NSW), ss 1.5, 4.2, 9.56
Fines Act 1996 (NSW), ss 6, 112
Local Government Act 1993 (NSW), s 694
Protection of the Environment Operations Act 1997 (NSW), Pt 8.3
Land and Environment Court Rules 2007
Cases Cited: ACE Demolition & Excavation Pty Ltd v Environment Protection Authority (2024) 260 LGERA 358; [2024] NSWCCA 4
Botany Bay City Council v Saab Corp Pty Ltd (2011) 183 LGERA 228; [2011] NSWCA 308
Burwood Council v Pratelli [2014] NSWLEC 28
Canterbury-Bankstown Council v Naji [2016] NSWLEC 101
Chief Executive, Office of Environment and Heritage v Traikaero Pty Ltd; Chief Executive, Office of Environment and Heritage v Woods [2019] NSWLEC 90
Cooper v Coffs Harbour City Council (1997) 97 LGERA 125
Cumberland Council v Badaoui Habib [2017] NSWLEC 18
Director-General, Department of Environment and Climate Change v Rae (2009) 168 LGERA 121; [2009] NSWLEC 137
Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194
Elias v The Queen (2013) 248 CLR 483; [2013] HCA 1
Elyard v R (2006) 45 MVR 402; [2006] NSWCCA 43
Environment Protection Authority v Ghossayn Group Pty Ltd; Environment Protection Authority v Ghossayn [2023] NSWLEC 127
Environment Protection Authority v Waste Recycling and Processing Corporation (2006) 148 LGERA 299; [2006] NSWLEC 419
GAS v The Queen (2004) 217 CLR 198; [2004] HCA 22
Giorgianni v The Queen (1985) 156 CLR 475; [1985] HCA 29
Hawkesbury City Council v Foster and Mushroom Composters Pty Ltd (1997) 97 LGERA 12; [1997] NSWCA 141
Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45
Mansour v R (2011) 209 A Crim R 275; [2011] NSWCCA 28
Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
R v Borkowski (2009) 195 A Crim R 1; [2009] NSWCCA 102
R v Thomson (2000) 49 NSWLR 383; [2000] NSWCCA 309
Secretary, Department of Planning, Industry and Environment v Ronald Lewis Greentree and Auen Grain Pty Ltd [2024] NSWLEC 131
The Queen v Pham (2015) 256 CLR 550; [2015] HCA 39
Texts Cited: Kogarah Local Environmental Plan 2012
Category: Sentence
Parties: Georges River Council (Prosecutor)
RNA Building Solutions Pty Ltd (Defendant)
Ahmad El Saadi (Defendant)
Representation: Counsel:
R Coffey (Prosecutor)
M Fozzard (Defendants)
RNA Building Solutions Pty Ltd (RNA) and Mr Ahmad El Saadi have each been charged with committing, and have pleaded guilty to, three offences of aiding, abetting, counselling or procuring another person to commit offences against the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act). Section 9.50(3A) of the EPA Act provides that a person who aids, abet, counsels or procures another person to commit an offence against the EPA Act arising under any other provision is guilty of an offence against the EPA Act arising under that provision. In this case, the offences the other person committed were the carrying out of development otherwise than in accordance with a development consent, in breach of s 4.2(1)(b) of the EPA Act. RNA and Mr El Saadi are, therefore, charged as secondary participants in the commission of the offences against s 4.2(1)(b) of the EPA Act by the principal offender.
The development involved alterations and additions to an existing dwelling house at 34 Beach Street, Blakehurst, a suburb within the Georges River local government area. Mr El Saadi is the owner of the land and RNA is a building company. Mr El Saadi is the sole director and shareholder of RNA - he is the alter ego of RNA. Mr El Saadi has a building supervisor's licence and RNA has a builder's licence.
The three offences against s 4.2(1)(b) of the EPA Act committed by the principal offender related to the three phases of carrying out that development: the demolition of the existing house on the land, the excavation of the land for the new house, and the erection of the new house. These three phases correspond to three of the types of development in the definition of "development" in paragraphs (e), (d) and (c) of s 1.5 of the EPA Act respectively.
Section 4.2(1) of the EPA Act makes it an offence for a person to carry out development on land, in respect of which an environmental planning instrument provides that development may not be carried out except with development consent, unless such a consent has been obtained and is in force and the development is carried out in accordance with the consent and the instrument. In this case, at the times when the offences were committed, the land was zoned R2 - Low Density Residential under Kogarah Local Environmental Plan 2012. In that zone, dwelling houses were permitted with development consent.
[4]
Sentencing for the offences
The prosecutor, Georges River Council, seeks by way of sentence for the offences, that the Court:
1. fine each of RNA and Mr El Saadi;
2. order RNA and Mr El Saadi to pay the prosecutor's costs pursuant to s 257B of the Criminal Procedure Act 1986 (NSW);
3. order any fine imposed to be paid to the prosecutor pursuant to s 694(1) of the Local Government Act 1993 (NSW); and
4. order RNA and Mr El Saadi, pursuant to s 9.56(2A) of the EPA Act and Part 8.3 of the Protection of the Environment Operations Act 1997 (NSW) (POEO Act), to demolish and remove unauthorised building works, amongst other orders.
RNA and Mr El Saadi accept that the Court should fine each of them in an appropriate amount and order that the fine be paid to the prosecutor. They submit, having regard to the prosecutor's conduct of the sentencing proceedings, the Court should not order them to pay the prosecutor's costs but if an order is to be made, they should pay only 50% of the prosecutor's costs. They contest the making of orders under s 9.56(2A) of the EPA Act and Pt 8.3 of the POEO Act as being unnecessary and disproportionate.
[5]
The offending conduct
Mr El Saadi purchased the land as a home for his family in December 2019. He wished to renovate the existing, two-storey dwelling with a basement erected on the land. In May 2020, Mr El Saadi engaged an architect, Ms Amani Salameh of Dezcon, to prepare and submit a development application for alterations and additions to the existing house and construction of a new swimming pool.
On 13 August 2020, the Council granted development consent under the EPA Act for alterations and additions to the existing dwelling house and the construction of a new swimming pool.
On 10 December 2020, a private certifier, Mr Mohamad (Sam) Kayellou, issued a construction certificate permitting the partial demolition of the existing dwelling house, excavation and additions to the existing dwelling house. The approved plans, which form part of the construction certificate, show the parts of the existing building authorised to be demolished and the new additions to the existing building. Excavation was necessarily permitted where required to facilitate the development shown on the construction certificate plans.
Between 10 December 2020 and 4 April 2021, RNA and Mr El Saadi carried out works on the land, including demolition of the existing dwelling house. Mr El Saadi engaged a contractor, Mr Jimmy El Asmar, to assist him to carry out the demolition work. Mr El Saadi paid Mr El Asmar around $3,000 to $4,000 for the demolition work.
By 7 January 2021, substantial demolition had occurred, including the eastern side wall on the first floor. Mr El Saadi stated that when they removed the roof, as they were authorised to do by the development consent and the construction certificate, the eastern side wall collapsed. Mr El Saadi said he was shocked and upset as this had never happened to him as a builder. Mr El Saadi said he called the private certifier, Mr Kayellou, who told him he should remove the collapsed wall and anything which is unsafe, and continue the demolition works. Mr Kayellou requested Mr El Saadi to get an engineer to give him a report.
Mr El Saadi said that he and Mr El Asmar removed and cleared the roof and the walls of the first floor, which were attached to the collapsed wall and had become unstable and partly collapsed. Mr El Saadi engaged a structural engineer, Mr Chabel Younan, who came to inspect the building in early January 2021, but advised Mr El Saadi that he could not inspect the building without Mr El Saadi making access safe. He directed Mr El Saadi to remove all unsafe structures and clear the building so he could access the footings and piers.
[6]
The objective seriousness of the offences
The sentence for each offence needs to reflect the objective seriousness of the offence and the subjective circumstances of the offender. In the present case, factors of relevance to the objective seriousness of the offence are: the nature of the offending; the maximum penalty for the offence; the state of mind of the offender in committing the offence; any harm or likely harm to the environment caused by commission of the offence; the foreseeability of harm; the practical measures to prevent that harm; the control over the causes of the offence; and whether the offence was committed for financial gain.
[7]
The nature of the offending
The nature and purpose of the statutory provision that has been contravened, and its place in the statutory scheme, are relevant to the objective seriousness of the offences committed by RNA and Mr El Saadi. The statutory provision that RNA and Mr El Saadi aided, abetted, counselled or procured the principal offender to contravene, s 4.2(1)(b) of the EPA Act, is an integral component of the statutory scheme for planning and development control. The architecture of the statutory scheme is to control the carrying out of development on land in three ways: first, to permit the carrying out of certain development without development consent; second, to permit the carrying out of certain development only with development consent; and third, to prohibit the carrying out of certain development. The applicable environmental planning instrument specifies which of these three categories of control applies to which development on which land. The statutory scheme depends on persons who wish to carry out development on land ascertaining whether development consent is required by the EPA Act and the applicable environmental planning instrument to be obtained before carrying out the development and, if so, obtaining development consent and then carrying out the development in accordance with the development consent and the instrument.
RNA and Mr El Saadi, in aiding, abetting, counselling or procuring the commission of the offences against s 4.2(1)(b), therefore undermined the integrity of the statutory scheme. Although development consent was obtained to carry out the proposed development on the land, RNA and Mr El Saadi aided, abetted, counselled or procured the carrying out of the development on the land otherwise than in accordance with that development consent and the instrument.
[8]
Maximum penalty
The maximum penalty represents the legislature's assessment of the seriousness of the offence and for this reason provides a sentencing yardstick: Elias v The Queen (2013) 248 CLR 483; [2013] HCA 1 at [27]. The maximum penalty serves as a basis of comparison between the case before the court and the worst possible case: Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [31].
The maximum penalty for the offence against s 4.2(1) of the EPA Act is, for a Tier 1 monetary penalty, $5 million in the case of a corporation and $1 million in the case of an individual (s 9.52(1)) and for a Tier 2 monetary penalty, $2 million in the case of a corporation and $500,000 in the case of an individual (s 9.53(1)). For a Tier 1 monetary penalty to apply, the prosecutor must establish the factors identified in s 9.52(2). The prosecutor in this case did not seek to establish the factors in s 9.52(2), so that the Tier 1 monetary penalty did not apply but the Tier 2 monetary penalty under s 9.53(1) applies.
These monetary penalties are for all offences against s 4.2(1) of the EPA Act. The types of development that may be carried out in breach of s 4.2(1) can vary in size and scale from a small-scale dwelling house, such as was involved in this case, to large-scale residential, commercial or industrial developments. The size and scale of the development the subject of the offence needs to be considered in assessing where on the yardstick of the maximum penalty the particular offence involving the unlawful carrying out of that development lies.
[9]
State of mind in committing the offence
The prosecutor submitted that the offences committed by RNA and Mr El Saadi were objectively more serious because they were committed intentionally. The prosecutor's argument was that the offences against s 4.2(1)(b) of the EPA Act committed by the principal offender are strict liability offences. The offence of carrying out development otherwise in accordance with the development consent, in breach of s 4.2(1)(b), does not have a mental element and is therefore a strict liability offence. Nevertheless, the prosecutor submitted that a strict liability offence committed intentionally, recklessly or negligently is objectively more serious than one that is not so committing, citing Director-General, Department of Environment and Climate Change v Rae (2009) 168 LGERA 121; [2009] NSWLEC 137 at [42]. The prosecutor submitted that, on the evidence, each of the three offences against s 4.2(1)(b) committed by the principal offender of demolishing the existing building, excavating the land and erecting the new building, otherwise than in accordance with the development consent, was committed intentionally. The demolition, excavation and erection were not accidental, negligent or reckless.
The difficulty with the prosecutor's argument is that the state of mind of the principal offender in committing the offences against s 4.2(1)(b) of the EPA Act by demolishing the existing building, excavating the land and erecting the new building otherwise than in accordance with the development consent, cannot affect the state of mind of the secondary participants of RNA and Mr El Saadi in aiding, abetting, counselling or procuring the principal offender to commit those offences. The relevant state of mind is that of the secondary participants in committing the offences with which they are charged, not the state of mind of the primary offender in committing the substantive offences.
The state of mind of the secondary participant is an element of the offence of secondary participation imposed by s 9.50(3A) of the EPA Act. The aiding, abetting, counselling or procuring the commission of an offence by the principal offender each require intentional assistance or encouragement of the doing of those things that constitute that offence. In Giorgianni v The Queen (1985) 156 CLR 475; [1985] HCA 29 at 506-507, Wilson, Deane and Dawson JJ said of the offences of aiding, abetting, counselling or procuring the commission of an offence:
"Those offences require intentional participation in a crime by lending assistance or encouragement. They do not, of course, require knowledge of the law and it is necessary to distinguish between knowledge of or belief in the existence of facts which constitute a criminal offence and knowledge or belief that those facts are made a criminal offence under the law. The necessary intent is absent if the person alleged to be a secondary participant does not know or believe that what he is assisting or encouraging is something which goes to make up the facts which constitute the commission of the relevant criminal offence. He need not recognize the criminal offence as such, but his participation must be intentionally aimed at the commission of the acts which constitute it. It is not sufficient if his knowledge or belief extends only to the possibility or even probability that the acts which he is assisting or encouraging are such, whether he realizes it or not, as to constitute the factual ingredients of a crime. If that were sufficient, a person might be guilty of aiding, abetting, counselling or procuring the commission of an offence which formed no part of his design. Intent is required and it is an intent which must be based upon knowledge or belief of the necessary facts."
See also GAS v The Queen (2004) 217 CLR 198; [2004] HCA 22 at [19].
[10]
Harm or likely harm to the environment
The prosecutor did not contend that RNA's or Mr El Saadi's commission of the offences caused actual environmental harm, let alone substantial harm so as to be an aggravating circumstance under s 21A(2)(g) of the Crimes (Sentencing Procedure) Act 1999 (NSW) (Sentencing Act). Instead, the prosecutor sought to rely on two types of harm.
The first was that the commission of the offences might have had some impact on the integrity of the planning system. This is not, however, a relevant harm to the environment: ACE Demolition & Excavation Pty Ltd v Environment Protection Authority (2024) 260 LGERA 358; [2024] NSWCCA 4 at [65], [69].
The second was that the actions of the principal offender in carrying out development otherwise than in accordance with the development consent, including demolishing the existing house, excavating the land and erecting the new house to a greater extent than was authorised by the development consent, might have caused harm to the neighbours. There was, however, no evidence that these increments of greater development than what the development consent authorised themselves caused or were likely to cause harm to the neighbours. The evidence of Ms Bennett, a planner employed by the Council, addressed the potential impact on neighbours and the public domain if the development proposed in the development application submitted in October 2024, which is currently being considered by the Council, were to be carried out. However, this evidence did not isolate the incremental impact, if any, caused by those aspects of the development carried out so far that were not in accordance with the existing development consent.
In these circumstances, the prosecutor has not established that the commission of the offences caused or was likely to cause harm to the environment.
[11]
Foreseeability of harm
The prosecutor submitted that the actual or likely harm, in terms of impact on the regulatory system and harm to the neighbours, was foreseeable as a result of the commission of the offences. I have found that the impact on the regulatory system is not a relevant harm to the environment and that any harm to the neighbours has not been proven. In these circumstances, the prosecutor has not established the foreseeability of such harm.
[12]
Practical measures to prevent harm
The prosecutor submitted that the practical measures RNA and Mr El Saadi could and should have taken to prevent the foreseeable impact to the regulatory system and harm to the neighbours, once a wall that was required by the development consent to be retained had collapsed, were to have refrained from continuing with the demolition works, contacted the Council to notify it of that event, and applied to modify the development consent. Whilst these are practical measures to prevent the further commission of the offences, they are not relevant to preventing the harm alleged by the prosecutor, for the reasons I have earlier given.
[13]
Control over the causes of the offence
RNA and Mr El Saadi had control over the carrying out of the development that led to the commission of the offences. Both RNA and Mr El Saadi were aware of the development consent. Mr El Saadi, in one or other of his capacities as owner of the land or director of RNA, caused the lodging of the development application seeking consent to carry out the development and was notified of the grant of development consent. RNA and Mr El Saadi aided, abetted, counselled or procured the carrying out of the development the subject of the consent. They were aware that the demolition of the existing house, the excavation of the land and the erection of the new house were being carried out otherwise than in accordance with the development consent. They could have directed that the development be carried out only in accordance with the development consent.
Insofar as a wall of the existing house, which was required to be retained by the development consent, collapsed during demolition of the existing house, RNA and Mr El Saadi could have directed that work cease until an application to modify the development consent or a new development application that took account of the collapse of the wall in any further development, had been approved. Development could thereafter have been carried out in accordance with the modified or new development consent.
In these circumstances, RNA and Mr El Saadi had control over the causes of the offences. This increases the objective seriousness of the offences.
[14]
No financial gain
The prosecutor did not allege, and there is no evidence establishing, that the offences were committed for financial gain, so as to be an aggravating factor under s 21A(2)(o) of the Sentencing Act.
[15]
Conclusion on the objective seriousness of the offences
The prosecutor has not established that: RNA and Mr El Saadi committed the offences with a heightened state of mind; any harm or likely harm to the environment was caused by the commission of the offences; such harm was foreseeable; there were practical measures to prevent that harm; or the offences were committed for financial gain. The prosecutor has established, however, that RNA and Mr El Saadi had control over the causes of the offences. In these circumstances, the objective seriousness of the offences is in the low range.
Also of relevance in assessing where on the yardstick of the maximum penalty the offences committed by RNA and Mr El Saadi lie is the fact that the offences involved the carrying out of the development of a dwelling house, which is of a smaller size and scale in the wide range of developments for which development consent is required under the EPA Act. This supports the finding that the offences committed by RNA and Mr El Saadi are in the low range of offences against s 4.2(1) of the EPA Act.
[16]
Subjective circumstances of the offenders
Within the limits of the objective seriousness of the offences, the Court is to take into account the subjective circumstances of RNA and Mr El Saadi that mitigate the offences. Of relevance here are: the early plea of guilty, no substantial record of previous convictions, remorse for the offences, good character and unlikelihood of reoffending.
[17]
Early plea of guilty
RNA and Mr El Saadi are entitled to a discount on sentence for their pleas of guilty: s 21A(3)(k) and s 22 of the Sentencing Act. A discount of up to 25% can be allowed for guilty pleas entered at the earliest opportunity for their utilitarian value to the criminal justice system: R v Thomson (2000) 49 NSWLR 383; [2000] NSWCCA 309 at [155], [160]. Delay in the entry of a plea of guilty lessens the utilitarian value of the plea of guilty: R v Borkowski (2009) 195 A Crim R 1; [2009] NSWCCA 102 at [32(8)] and s 22(1)(b) of the Sentencing Act.
The prosecutor contended that the pleas of guilty were not entered at the earliest available opportunity. The proceedings against RNA and Mr El Saadi were commenced on 26 July 2023, with the first return at which RNA and Mr El Saadi had an opportunity to answer to the charges being on 8 September 2023. The proceedings were adjourned a number of times to 6 October, 24 November and 15 December 2023. On 15 December 2023, RNA entered pleas of not guilty to all three charges against it and Mr El Saadi entered pleas of not guilty to the charges involving unlawful demolition and unlawful erection of a building but a plea of guilty to the charge involving unlawful excavation. Thereafter, the proceedings were adjourned a number of times to 5 April, 1 May and 10 May 2024. On 10 May 2024, the prosecutor sought and was granted leave to file amended summonses in all proceedings against RNA and Mr El Saadi. The amendments were to the particulars to the charges, not to the charges themselves. The amendments were made as a result of plea negotiations between the prosecutor and the defendants. Thereupon, RNA and Mr El Saadi changed their pleas to enter pleas of guilty to all three charges against each of them. The result was that the pleas of guilty were entered around eight months after the first return of the summonses before the Court. In these circumstances, the prosecutor submitted that the pleas of guilty should attract a discount less than the full discount of 25%, somewhere in the range of 10-15%.
RNA and Mr El Saadi submitted that the relevant time period for determining whether the pleas were entered at an early opportunity is between the prosecutor obtaining leave to amend the summonses and the entry of the pleas to those amended summonses. This was on the same day, 15 May 2024. The full discount of 25% should therefore be allowed.
[18]
Remorse
The prosecutor submitted that RNA and Mr El Saadi have demonstrated little remorse for committing the offences, by reference to the two factors in s 21A(3)(i) of the Sentencing Act and the four forms of action described in Environment Protection Authority v Waste Recycling and Processing Corporation (2006) 148 LGERA 299; [2006] NSWLEC 419 at [203], [204], [210], [212] and [214].
First, RNA and Mr El Saadi did not voluntarily report the commission of any of the offences, including when the wall collapsed during demolition rendering carrying out of the development in accordance with the development consent no longer possible.
Second, RNA and Mr El Saadi have yet to rectify the breach of the EPA Act occasioned by the carrying out of the development otherwise than in accordance with the development consent. Although RNA and Mr El Saadi have stopped all work on the site, in response to the Stop Work Order, they have not demolished or removed all of the unauthorised works.
Third, and related to the second, the prosecutor submitted RNA and Mr El Saadi have not yet addressed the cause of the offences by obtaining approval for the unauthorised works. An application for a building information certificate was lodged in relation to the unlawful works on 24 August 2021, but it was refused by the Council on 17 February 2022. An application to modify the development consent was lodged on 29 September 2021, but it was refused by the Council on 16 November 2021. A development application was lodged on 11 March 2022 seeking consent for the use of dwelling and additional works to a new dwelling, but it was returned by the Council on 6 September 2022 following the applicant's failure to respond to the Council's request for further information. Another development application was lodged on 12 September 2022, seeking retrospective approval of unauthorised excavation and construction within the basement and construction of a cabana, but it was returned by the Council on 17 October 2022 on the basis that retrospective approval of already constructed works was not possible. A further application for a building information certificate was lodged on 21 October 2024 in relation to the unauthorised works on the land, but it has not yet been determined by the Council. Finally, on 28 October 2024, a further development application seeking consent for use of works as constructed, rectification works and works to complete the dwelling was lodged, but it also has not yet been determined by the Council.
[19]
No prior convictions
The prosecutor does not allege that RNA or Mr El Saadi have any prior convictions for planning or environmental offences: see s 21A(3)(e) of the Sentencing Act.
[20]
Good character and unlikelihood of reoffending
RNA and Mr El Saadi submitted that both are of good character. Three character references for Mr El Saadi were tendered, one by Ms Sana Karanouh, a second by Mr Shoaib Tahir and a third by Dr Sumaira Imtiaz. All three referees spoke of Mr El Saadi's good character and remorse for breaching the law.
RNA and Mr El Saadi submitted that they are unlikely to reoffend, especially given the uniqueness of the offending. Both RNA and Mr El Saadi said that they have suffered great financial consequences as a result of their actions. Mr El Saadi said he is reminded that they did the wrong thing every time he visits his lawyers, town planner or the site, which has had no work done on it for three years. Mr El Saadi indicated he does not wish to do the wrong thing again.
The prosecutor did not contest that RNA and Mr El Saadi are of good character and unlikely to reoffend.
I accept that RNA and Mr El Saadi are of good character: see s 21A(3)(f) of the Sentencing Act. I accept that Mr El Saadi, on his own behalf and on behalf of RNA, recognises the wrongfulness of the conduct of carrying out development otherwise than in accordance with the development consent and is remorseful for the commission of the offences. I find both RNA and Mr El Saadi are unlikely to reoffend: see s 21A(3)(g) of the Sentencing Act.
[21]
Deterrence
One of the purposes of sentencing of importance for planning and environment offences is deterrence, both general and specific. The prosecutor submitted and the defendants accepted that general deterrence is important in sentencing for offences against the EPA Act. The prosecutor submitted that some weight should also be given to specific deterrence, but RNA and Mr El Saadi submitted that little to no weight needs to be given to specific deterrence given their remorse and unlikelihood of reoffending.
I accept that the sentences to be imposed for the offences committed by RNA and Mr El Saadi should reflect general deterrence but not specific deterrence to any significant degree due to their remorse and unlikelihood of reoffending.
[22]
Appropriate sentences
Having regard to the low objective seriousness of the offences and the material subjective circumstances of the offenders, I consider the appropriate sentence for each offence is a fine at the low end of the range. For RNA, having regard to the maximum penalty for a corporation of $2,000,000, I consider a fine of $200,000 for each offence is appropriate. For Mr El Saadi, having regard to the maximum penalty for an individual of $500,000, I consider a fine for each offence of $50,000 is appropriate. To these amounts, a discount of 25% for the utilitarian value of the plea of guilty should be applied, resulting in a fine for each offence of $150,000 for RNA and $37,500 for Mr El Saadi.
[23]
Reviewing the appropriate sentences
Although the sentences I have determined are appropriate for the offences committed by RNA and Mr El Saadi looked at individually, RNA and Mr El Saadi submitted that the amount of any fine so determined should be reviewed and adjusted having regard to the totality principle and the close relationship between RNA and Mr El Saadi, consistency in sentencing, and their financial means to pay a fine.
[24]
Totality and relationship between offenders
As to totality, RNA and Mr El Saadi submitted that they have each been charged with three offences for what is a single course of conduct of carrying out development otherwise than in accordance with the development consent. The prosecutor chose to separate that single course of conduct into the three phases involved: the demolition of the existing building, the excavation of the land for the new building and the erection of the new building. This separation reflected the definition of "development", which makes each of these phases development in its own right. Whilst this might be legally correct, it does not reflect the reality of the conduct involved. There was only a single course of conduct of altering and adding to the existing dwelling house and constructing a new swimming pool. That single course of conduct could have been charged as one offence of carrying out development otherwise than in accordance with the development consent, with the deviations from the development consent at each phase of the development being given as particulars of the offence.
In these circumstances, RNA and Mr El Saadi submitted the Court should review the aggregate of the fines imposed for the three offences committed by each of them, consider whether the aggregate is just and appropriate and reflects the total criminality before the court, and if not, reduce the amount of each fine in order to do so: Environment Protection Authority v Ghossayn Group Pty Ltd; Environment Protection Authority v Ghossayn [2023] NSWLEC 127 at [128], applied in ACE Demolition & Excavation Pty Ltd v Environment Protection Authority at [110]-[111].
I consider there is force in this submission. The development consent authorised alterations and additions to the existing house and the construction of a new swimming pool in the backyard. The carrying out of that development necessarily involved, first, the demolition of the parts of the existing house that were to be altered or added to, including the roof and certain external and internal walls; second, the excavation for an in-ground swimming pool and piers and footings for the additions to the house; and third, the erection of new structures and parts of the building to form the altered and added to house and the new swimming pool. All of this building work had as its purpose the construction of the altered and added to dwelling house and the new swimming pool on the land.
[25]
Consistency in sentencing
RNA and Mr El Saadi submitted that the Court, in determining the appropriate amount of the fines to be imposed, should have regard to the sentences imposed in three other cases that they said were more serious or comparable to the offending in the present case. These are Burwood Council v Pratelli [2014] NSWLEC 28, Canterbury-Bankstown Council v Naji [2016] NSWLEC 101 and Cumberland Council v Badaoui Habib [2017] NSWLEC 18.
In Burwood Council v Pratelli, the offender pleaded guilty to one offence of carrying out development otherwise than in accordance with the development consent. The offender had constructed a new dwelling house not in accordance with three conditions of development consent. The breaches of the conditions of consent were minor and the objective gravity of the offence was found to be at the low end of the spectrum. There were material mitigating factors. A fine of $9,750 was imposed.
In Canterbury-Bankstown Council v Naji, the offender pleaded guilty to one offence of carrying out development otherwise than in accordance with a complying development certificate. The offender, in constructing a new dwelling, had illegally converted a subfloor area into a basement. The objective seriousness of the offence was found to be at the high end of the low range and there were material mitigating factors. A fine of $28,000 was imposed.
In Cumberland Council v Badaoui Habib, the offender pleaded guilty to two offences of carrying out development without consent. The offender owned two adjoining lots and constructed on each lot a dwelling and a granny flat. Both offences were found to be of moderate objective seriousness and there were material mitigating factors. A fine of $52,500 was imposed for each offence.
Consistency in sentencing does mean that like cases are to be treated alike and different cases are to be treated differently: Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45 at [49]; The Queen v Pham (2015) 256 CLR 550; [2015] HCA 39 at [28]. But the consistency that is sought is "[n]ot just to what has been done in other cases but why it was done": Hili v The Queen at [18]. This involves consistency in the application of the relevant legal principles: Hili v The Queen at [18]; The Queen v Pham at [28].
In this regard, consistency in sentencing for the offences committed by RNA and Mr El Saadi is not achieved by numerical equivalence with the amounts of the fines in the three cases relied on by RNA and Mr El Saadi. The amounts of the fines were influenced by the sentencing judge's assessment and intuitive synthesis of the objective seriousness of the offences and the subjective circumstances of the offenders in those cases, which are different to those in the present case. Nevertheless, I have had regard to the sentences imposed for the particular offences committed by the particular offenders in those cases. I do not consider that the sentences I have determined to be appropriate, after review and adjustment, for the offences committed by RNA and Mr El Saadi, both individually and in aggregate, are outside of the range indicated by those cases for offences against the EPA Act. I recognise, however, that an established range does not fix the boundaries for sentencing: Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 at [304].
[26]
Means to pay
With regard to means to pay, s 6 of the Fines Act 1996 (NSW) requires the Court, in fixing the amount of the fine, to have regard to:
"(a) such information regarding the means of the accused as is reasonably and practicably available to the court for consideration, and
(b) such other matters as, in the opinion of the court, are relevant to the fixing of that amount."
Neither RNA nor Mr El Saadi put sufficient financial information before the Court of their assets, income or expenses so as to allow the Court to assess their ability to pay a fine in any amount. RNA did not provide any financial information. Mr El Saadi did give evidence of his loans, including for the land at Blakehurst, and the costs he has incurred in carrying out the development and seeking to regularise the unlawful development. Mr El Saadi submitted that he has "already suffered greatly" and will "continue to suffer" from his conduct in committing the offences. What that suffering involved was not explained in any detail, but Mr El Saadi did say it included emotional and non-financial suffering by Mr El Saadi and his family. Mr El Saadi said he will meet their own legal fees and is likely to incur further costs in seeking to regularise the lawfulness of the building. But even accepting that RNA and Mr El Saadi have incurred and will incur considerable legal and other costs, there is still insufficient financial information before the Court to find that they will be unable to pay fines in the amounts I have determined to be appropriate.
[27]
Additional orders
The prosecutor sought six additional orders under s 9.56(2A) of the EPA Act, which applies Part 8.3 of the POEO Act to an offence against the EPA Act. Proposed order 1 requires RNA and Mr El Saadi to provide to the Council, within 28 days of the orders, an "as built survey report", which clearly distinguishes approved works from unauthorised works. Proposed order 2 entitles the prosecutor to approach the Court, within 14 days of receiving the as built survey report, to seek any variation of order 3.
Proposed order 3 requires RNA and Mr El Saadi, within 3 months of the orders, to:
1. remove all unauthorised internal walls to the lower ground floor (basement) areas, including the wall surrounding the lift shaft;
2. backfill all the unauthorised lower ground floor (basement) excavation areas;
3. remove the internal stairs and associated internal wall to ground floor on the lower ground floor (basement) level; and
4. construct walls in accordance with Dezcon Drawing No. 02 Lower Ground Floor Revision A as approved by DA2020/0203 Development Consent (Lower Ground Floor Plan), which was Annexure A to the proposed orders, and the Development Consent.
Proposed order 4 stays order 3 until such time as the application for development consent lodged on 28 October 2024 and the application for a building information certificate lodged on 21 October 2024 are finally determined by the Council or the Court on appeal. Proposed order 5 provides that if the development application and building information certificate application are finally determined by approval, order 3 is permanently stayed.
Proposed order 6 requires RNA and Mr El Saadi, prior to commencement of the works required under order 3, to engage a suitably qualified structural engineer to provide written advice to ensure that none of the internal walls to be demolished under order 3 are load bearing or required for the structural stability of the ground floor slab and to provide a copy of the advice to the Council. If the engineer's advice is that the walls to be demolished are load bearing or required for the structural stability of the ground floor slab, RNA and Mr El Saadi are to approach the Court for an appropriate variation of order 3.
The Council submitted that the proposed orders are appropriate. Proposed orders 1 and 2 are necessary to identify what is the extent of the variation between the development as approved and the development as built. Proposed order 3 seeks to rectify the breach of the development consent by bringing the development, as far as practicable, into accordance with the development consent. To ensure that no unnecessary rectification work is undertaken, proposed order 4 provides for the work required by order 3 to be stayed pending the final determination of RNA's and Mr El Saadi's current applications for a development consent and a building information certificate. If these applications are approved, proposed order 5 provides for order 3 to be permanently stayed. Proposed order 6 is to ensure that the works required by order 4 do not affect the structural stability of the building.
[28]
Application of fines
The prosecutor seeks for any fine imposed for the offences to be paid to the Council, pursuant to s 694(1) of the Local Government Act 1993 (NSW). That subsection provides:
"(1) Any penalty, fine or forfeiture imposed under any Act, or imposed for a contempt of a court order to remedy or restrain a breach of this Act or any other Act, and recovered in proceedings instituted by the council is -
(a) to be paid to the council, and
(b) to be allocated by the council to the council's consolidated fund."
The reference to "proceedings instituted by the council" is defined in s 694(5)(a):
"(a) a reference to proceedings instituted by the council includes -
(i) a reference to proceedings instituted under the direction or on behalf or for the benefit of the council, and
(ii) a reference to penalty notices issued by or under the direction or on behalf or for the benefit of the council, and"
The current language of s 694 is responsive to the decision of the majority of the Court of Appeal in Hawkesbury City Council v Foster and Mushroom Composters Pty Ltd (1997) 97 LGERA 12; [1997] NSWCA 141. In that case, Hawkesbury City Council brought proceedings to recover a fine imposed by the Land and Environment Court for a contempt of an order made in proceedings initiated by the Council for breach of conditions of a development consent granted under the EPA Act. The Court found Mushroom Composters Pty Ltd guilty of contempt and fined it $80,000. As required by the Land and Environment Court Rules of the time, the Court ordered the fine to be paid to the Registrar of the Court. The Council then brought proceedings by way of notice of motion seeking an order directing that the whole of the fine for contempt be paid by Mushroom Composters to the Council. At first instance, Pearlman CJ dismissed the Council's application as the fine for contempt did not fall within the then language of s 694(1) of "any penalty, fine or forfeiture under any Act recovered in proceedings instituted" by the Council.
On appeal, the majority (Meagher and Sheller JJA) agreed and dismissed the Council's appeal. The fine for contempt was not a fine imposed "under" an Act for the purpose of s 694(1). The Land and Environment Court, as a superior court of record, has inherent power under the common law to punish for contempt. The fine for contempt was not under the EPA Act, the statute under which the Court made the original order to remedy and restrain the proven breach of the development consent, or any other Act (at 21 and 23). Mason P dissented, finding that the fine for contempt was imposed under the Land and Environment Court Act, in the sense that the former s 67(d) of that Act provided the authority for the Court to impose it and because that Act designates the Court as a superior court of record that confers such power by necessary implication (at 19).
[29]
Costs
The prosecutor sought an order that RNA and Mr El Saadi pay its costs pursuant to s 257B of the Criminal Procedure Act 1986 (NSW). RNA and Mr El Saadi opposed this order for four reasons:
1. If the prosecutor is unsuccessful in seeking additional orders under Part 8.3 of the POEO Act for demolition and removal of parts of the building, the defendants' costs of that issue should be offset against the prosecutor's costs of the balance of the proceedings so that there should be no order as to costs.
2. The prosecutor relied on irrelevant and unhelpful town planning evidence on sentence, the costs of which should not have been incurred.
3. The prosecutor has filed voluminous and irrelevant materials on a very small and quite straightforward plea.
4. The proceedings should have been brought in the Local Court.
RNA and Mr El Saadi submitted that in these circumstances, they should not be ordered to pay the prosecutor's costs of the proceedings. In the alternative, they should be ordered to pay only 50% of the costs of the proceedings and exclude any costs associated with the application for additional orders under Part 8.3 of the POEO Act.
I accept the defendants' submission that an order should not be made that RNA and Mr El Saadi pay all of the prosecutor's costs of the proceedings. The prosecutor has been unsuccessful in many of its submissions on sentence and in obtaining additional orders under Part 8.3 of the POEO Act. The latter application was an important component of the prosecutor's case on sentence. Around half of the documents tendered by the prosecutor in the three volume evidence book and all the town planning evidence of Ms Bennett (which was the only oral evidence adduced by the prosecutor) were directed to securing the proposed orders under Part 8.3 of the POEO Act. I do not consider it is just and reasonable to order RNA and Mr El Saadi to pay the prosecutor's costs of that unsuccessful application for orders under Part 8.3 of the POEO Act. Although an order for costs could be made excluding the costs associated with the application for orders under Part 8.3 of the POEO Act, this would necessitate an assessment of the prosecutor's costs, adding to the costs. Having regard to the evidence adduced and time spent at court attendances and the sentence hearing, I assess that about half of the prosecutor's costs would be attributable to its case for orders under Part 8.3 and the other submissions on sentence in which it was unsuccessful. In this circumstance, I consider an order should be made that RNA and Mr El Saadi pay one half of the prosecutor's costs.
[30]
Orders
The Court orders:
1. in proceedings 2023/237804 (demolition):
1. RNA Building Solutions Pty Ltd is convicted of the offence against s 9.50(3A) and s 4.2(1)(b) of the Environmental Planning and Assessment Act 1979 (NSW), as charged.
2. RNA Building Solutions Pty Ltd is fined $18,750.
3. RNA Building Solutions Pty Ltd is to pay the fine in order 2 to the Registrar of the Land and Environment Court, who is to pay such fine to Georges River Council pursuant to s 694(1) of the Local Government Act 1993 (NSW).
4. RNA Building Solutions Pty Ltd is to pay the prosecutor's costs of the proceedings of one-half of the amount as may be determined under s 257G of the Criminal Procedure Act 1986 (NSW).
1. in proceedings 2023/237806 (excavation):
1. RNA Building Solutions Pty Ltd is convicted of the offence against s 9.50(3A) and s 4.2(1)(b) of the Environmental Planning and Assessment Act 1979 (NSW), as charged.
2. RNA Building Solutions Pty Ltd is fined $28,125.
3. RNA Building Solutions Pty Ltd is to pay the fine in order 2 to the Registrar of the Land and Environment Court, who is to pay such fine to Georges River Council pursuant to s 694(1) of the Local Government Act 1993 (NSW).
4. RNA Building Solutions Pty Ltd is to pay the prosecutor's costs of the proceedings of one-half of the amount as may be determined under s 257G of the Criminal Procedure Act 1986 (NSW).
1. in proceedings 2023/237805 (erection of building):
1. RNA Building Solutions Pty Ltd is convicted of the offence against s 9.50(3A) and s 4.2(1)(b) of the Environmental Planning and Assessment Act 1979 (NSW), as charged.
2. RNA Building Solutions Pty Ltd is fined $18,750.
3. RNA Building Solutions Pty Ltd is to pay the fine in order 2 to the Registrar of the Land and Environment Court, who is to pay such fine to Georges River Council pursuant to s 694(1) of the Local Government Act 1993 (NSW).
4. RNA Building Solutions Pty Ltd is to pay the prosecutor's costs of the proceedings of one-half of the amount as may be determined under s 257G of the Criminal Procedure Act 1986 (NSW).
1. in proceedings 2023/237814 (demolition):
1. Mr Ahmad El Saadi is convicted of the offence against s 9.50(3A) and s 4.2(1)(b) of the Environmental Planning and Assessment Act 1979 (NSW), as charged.
2. Mr Ahmad El Saadi is fined $18,750.
3. Mr Ahmad El Saadi is to pay the fine in order 2 to the Registrar of the Land and Environment Court, who is to pay such fine to Georges River Council pursuant to s 694(1) of the Local Government Act 1993 (NSW).
4. Mr Ahmad El Saadi is to pay the prosecutor's costs of one-half of the amount as may be determined under s 257G of the Criminal Procedure Act 1986 (NSW).
1. in proceeding 2023/237813 (excavation):
1. Mr Ahmad El Saadi is convicted of the offence against s 9.50(3A) and s 4.2(1)(b) of the Environmental Planning and Assessment Act 1979 (NSW), as charged.
2. Mr Ahmad El Saadi is fined $28,125.
3. Mr Ahmad El Saadi is to pay the fine in order 2 to the Registrar of the Land and Environment Court, who is to pay such fine to Georges River Council pursuant to s 694(1) of the Local Government Act 1993 (NSW).
4. Mr Ahmad El Saadi is to pay the prosecutor's costs of one-half of the amount as may be determined under s 257G of the Criminal Procedure Act 1986 (NSW).
1. in proceedings 2023/237812 (erection of building):
1. Mr Ahmad El Saadi is convicted of the offence against s 9.50(3A) and s 4.2(1)(b) of the Environmental Planning and Assessment Act 1979 (NSW), as charged.
2. Mr Ahmad El Saadi is fined $18,750.
3. Mr Ahmad El Saadi is to pay the fine in order 2 to the Registrar of the Land and Environment Court, who is to pay such fine to Georges River Council pursuant to s 694(1) of the Local Government Act 1993 (NSW).
4. Mr Ahmad El Saadi is to pay the prosecutor's costs of one-half of the amount as may be determined under s 257G of the Criminal Procedure Act 1986 (NSW).
[31]
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: 18 December 2024
On 13 August 2020, Georges River Council (the Council) granted development consent for alterations and additions to the existing dwelling house on the land. The development permitted by the development consent was the partial demolition of the existing house, excavation of the land, and alterations and additions to the existing house to form the altered and added to house.
The offences against s 4.2(1)(b) of the EPA Act committed by the principal offender involved demolishing the whole of the existing building, instead of only demolishing those parts of the existing building shown in the approved plans to be demolished; excavating the land beyond what was required for the building works depicted in the approved plans; and erecting a new building, including where parts of the existing building were shown to be retained in the approved plans and where no new work was shown in the approved plans. In these respects, development was carried out otherwise than in accordance with the development consent in breach of s 4.2(1)(b) of the EPA Act.
Each of RNA and Mr El Saadi have been charged, and have pleaded guilty to, three offences of aiding, abetting, counselling or procuring another person to commit these offences against s 4.2(1)(b) of the EPA Act, contrary to s 9.50(3A) and s 4.2(1)(b) of the EPA Act. In the originating and amended summonses, the principal offender who committed each offence against s 4.2(1)(b) was not identified. At the pre-trial mention before the sentence hearing, I pointed out this deficiency that the charges do not accord with the language of the offence under s 9.50(3A) of the EPA Act, which would require RNA and Mr El Saadi to be charged as secondary participants with aiding, abetting, counselling or procuring another person (the primary offender) with committing the offences against s 4.2(1) of the EPA Act.
At the sentence hearing, the prosecutor sought leave to amend further each summons to identify the person it said was the principal offender who carried out development in breach of s 4.2(1)(b). A different person was identified for each of the three phases of the development. The persons were the contractors who Mr El Saadi had engaged to assist him and RNA in the demolition of the existing building, excavation of the land and erection of the new building. I declined to grant leave to the prosecutor to amend the summonses in this way at this late stage in the proceedings. The prosecutor had not established on the evidence that each of the contractors were persons who carried out development in breach of s 4.2(1)(b), so as themselves to commit an offence, as opposed to assisting RNA and Mr El Saadi in their carrying out of the development in breach of s 4.2(1)(b), so that RNA and Mr El Saadi committed an offence. There was also the procedural unfairness in naming each contractor as a person who committed an offence against the EPA Act. Those persons were not charged with committing an offence against s 4.2(1)(b). No notice had been given to those persons that they were to be named as the persons who committed offences against s 4.2(1)(b), so as to give them an opportunity to be heard as to the summonses being amended in this way. On the prosecutor's approach, the first time those persons would find out that they had been named as having committed offences against the EPA Act would be if and when they read the Court's judgment sentencing RNA and Mr El Saadi for aiding, abetting, counselling or procuring those persons to commit an offence against s 4.2(1)(b) of the EPA Act.
The refusal of the prosecutor's application for leave to amend the summonses in this way meant that the charges in the summonses continued not to identify the principal offender who committed the offences against s 4.2(1)(b) of the EPA Act by carrying out development otherwise than in accordance with the development consent. Yet, RNA and Mr El Saadi have pleaded guilty to being secondary participants in the commission of the offence by an unidentified person. In order to sentence them for the offences, there needs to be some understanding as to who were the principal offenders who committed the offences against s 4.2(1)(b) of the EPA Act. On the evidence, the persons who were responsible for the carrying out of the development were RNA and Mr El Saadi. The difficulty is determining who did what and when.
Mr El Saadi was the natural person who carried out, or directed others to carry out, the work of demolishing the existing building, excavating the land, and erecting the new building. The problem is identifying in which capacity Mr El Saadi was acting, whether as the sole director of RNA, his building company, or in his individual capacity as the landowner. As Tobias AJA observed in Botany Bay City Council v Saab Corp Pty Ltd (2011) 183 LGERA 228; [2011] NSWCA 308 at [119]:
"…just because a director of a company is the agent by which the company does an act, does not make the director the actor. The actor is the company notwithstanding that it acts through its director. The company always acts through the agency of its directors and the fact that a director is the primary actor on behalf of the company does not mean that the act becomes that of the director as distinct from that of the company."
A director of a building company can still be considered to have performed directorial duties of the building company even if the director were to have "supervise[d] its work, directed how it was to be undertaken and made decisions as to what particular work was to be performed": Botany Bay City Council v Saab Corp Pty Ltd at [120].
The fact that a director is the agent of a company presents a difficulty in the present case in determining who carried out the development. If Mr El Saadi was performing his directorial duties of RNA as the building company carrying out the development, his actions are to be considered to be the actions of RNA. This does not cause a difficulty for the charges against Mr El Saadi: he is a secondary participant in the commission by RNA of the offence against s 4.2(1)(b) of carrying out development otherwise than in accordance with the development consent. It does, however, cause a difficulty for the charges against RNA: RNA cannot be both a secondary participant and a principal offender in the commission of the offence against s 4.2(1)(b).
The charges against RNA are only maintainable if Mr El Saadi did not act as a director of RNA but instead acted in his other capacity as the owner of the land on which the development was carried out. The time when Mr El Saadi acted in that capacity as landowner is not clear on the evidence. The time matters because the three charges against RNA correspond with the three phases in carrying out the development of the demolition of the existing building, excavation of the land and erection of the new building. In which phase did Mr El Saadi act as landowner rather than as director of RNA? The evidence does not permit an answer.
In these circumstances, the best that can be done is to fall back on Mr El Saadi and RNA's pleas of guilty to the charges against them. Each of Mr El Saadi and RNA have pleaded guilty to aiding, abetting, counselling or procuring another person, most likely the other of Mr El Saadi and RNA, to commit the offences against s 4.2(1)(b) in the carrying out of development otherwise than in accordance with the development consent. There is an element of artificiality involved in sentencing each of RNA and Mr El Saadi on this basis that each aided, abetted, counselled or procured the other person to commit an offence against s 4.2(1)(b), as this means that each must have been a principal offender as well, but that is not an offence for which they are to be sentenced. Yet this is the sentencing task the Court must undertake.
By 18 February 2021, Mr El Saadi had demolished all the unsafe structures. On 18 February 2021, Mr Younan inspected the building. He informed Mr El Saadi that the collapse of the wall was due to structural problems with the pilings and footings and the whole house needed to be demolished. Mr Younan later provided the requested engineer's report, which Mr El Saadi received on 9 March 2021. In the report, Mr Younan observed:
"The inspection revealed that the ground floor walls had fallen. The footing showed gap between the piling and the strip footing, the reinforcement of the strip footing connecting the foundation piles were rotten (photos attached) and trace of concrete cancer was shown at the time of the inspection."
Mr Younan opined:
"I am of the opinion that the existing structure should be demolished and rebuilt in order to prevent safety issues because the substructure is not adequate to take the load of the addition, footings should be built off sound foundation to the engineering specifications."
Mr El Saadi said that after his meeting with Mr Younan he called Mr Kayellou and repeated the information Mr Younan had told him that the whole house must be demolished, the steel between the footings and piers is rusting and separating, and there is concrete cancer. Mr Kayellou advised Mr El Saadi to keep going with the demolition and get the engineer's report. He said: "Safety is number one."
After a further site visit by Mr Younan, at which he confirmed his advice that the whole house had to be demolished, Mr El Saadi spoke to Mr Kayellou who accepted the advice that the whole house should be demolished, asked for the engineer's report, and advised Mr El Saadi: "Make sure you rebuild in the same footprint as the existing house and approved height. I will approve it."
In light of the need to demolish the whole house, Mr El Saadi engaged, in February 2021, the architect, Ms Salameh, to design new building concept plans for the land.
In March 2021, Mr El Saadi asked Mr El Asmar to assist him in demolishing the entire house, but Mr El Asmar did not undertake further demolition work. Mr El Saadi instead completed the demolition of the entire house himself.
Between 10 December 2020 and mid to late April 2021, excavation work on the land occurred. Mr El Saadi engaged and directed Sydney Trees Excavation and Demolition Pty Ltd (Sydney Trees) to carry out in part the excavation work, with the knowledge, acquiescence and consent of RNA. Mr El Saadi caused or directed parts of the land to be excavated beyond the area required for building works shown on the approved plans.
Between mid to late April 2021 and 2 August 2021, Mr El Saadi and RNA caused or directed parts of the new building to be erected contrary to the development consent. Mr El Saadi engaged a building contractor, Mr Mahmoud El Abboud, to assist him in carrying out construction work on the land with the knowledge, acquiescence and consent of RNA. Mr El Saadi gave oral directions to Mr El Abboud. The works were carried out by or at the direction of Mr El Saadi to the basement, ground floor and first floor areas, including formwork, steel work and pouring of concrete. The new building was constructed in locations where parts of the existing building were shown to be retained on the approved plans and where no new works were shown on the approved plans.
On 2 August 2021, upon being notified that works might be being undertaken on the land otherwise than in accordance with the development consent, a Council compliance officer, Mr Cufer, reviewed the Council's development files and NearMaps aerial imagery. On 3 August 2021, Mr Cufer spoke with the private certifier, Mr Kayellou, and then inspected the land. During the inspection, Mr Cufer observed at the front gate a sign identifying the principal contractor as RNA. Mr Cufer observed and took photographs of the building works on the northern, eastern and western elevations of the new building. Mr Cufer observed the new building had been constructed where parts of the existing building were shown on the approved plans and where no new works had been approved, including a lower ground floor not approved by the development consent. Mr Curfer spoke with Mr El Saadi during the inspection, who stated he was responsible for the works.
After the inspection, Mr Cufer issued a Stop Work Order to RNA on 3 August 2021. Works on site thereafter ceased. Also on 3 August 2021, Mr Kayellou issued a Written Directions Notice describing the non-compliance of extensive demolition carried out contrary to the development consent and the construction certificate and directing as a step to be taken to remedy the non-compliance: "A building information certificate may be applied for through council in order to rationalize/legalise non-compliant work."
The Council issued to RNA on 10 August 2021 a notice of proposed development control order requiring RNA to demolish and remove the unauthorised building works. Although the Council foreshadowed that it would issue on 5 October 2021 a development control order requiring the demolition and removal of all unauthorised building works, the Council did not do so.
On 26 October 2022, Mr El Saadi attended an interview with Council officers, pursuant to s 9.23 of the EPA Act. During the interview, Mr El Saadi admitted to carrying out work and directing work to be carried out on the land, including the demolition of the existing dwelling and construction of the new dwelling. Mr El Saadi admitted that the development consent did not approve the complete demolition of the existing dwelling, despite the entire dwelling being demolished.
Each of the terms "aid", "abet", "counsel" and "procure" involve an element of intention. As Mason J noted in Giorgianni v The Queen at 492, those terms are declaratory of the common law and do not bear their ordinary meaning. Mason J described this meaning at common law at 493:
"In felony at common law the terms 'aid' and 'abet' are generally used to refer to the conduct of a principal in the second degree, or one who is present at the commission of the offence by the principal offender, while the terms 'counsel' or 'procure' are generally used in relation to the conduct of an accessory before the fact, or one who is absent at the time of the commission of the offence: 4 Bl. Comm. 34-36; Ferguson v. Weaving [[1951] 1 KB 814 at 818-819]. In substance, however, there appears to be no distinction between a principal in the second degree and an accessory before the fact beyond the question of presence. In misdemeanour, where no attempt has been made to classify the parties to an offence, each of the four terms is employed to refer to the conduct of a secondary participant. But the terms are descriptive of a single concept. In this regard, I would adopt the observation of Cussen A.C.J. in R. v. Russell [[1933] VLR 59 at 67], as being applicable to secondary participation in misdemeanour. Having listed various words, including 'aiding' and 'abetting' which have been used to refer to the conduct of a principal in the second degree in felony, his Honour observed:
'All the words abovementioned are, I think, instances of one general idea, that the person charged as a principal in the second degree is in some way linked in purpose with the person actually committing the crime, and is by his words or conduct doing something to bring about, or rendering more likely, such commission.'
As R. v. Russell itself illustrates, there need not exist any agreement or consensus between the principal in the second degree or secondary participant and the principal offender.
…
While it may be that in the circumstances of a particular case one term will be more closely descriptive of the conduct of a secondary party than another, it is important that this not be allowed to obscure the substantial overlap of the terms at common law and the general concept which they embody."
In the present case, the charges in the summonses do not identify which of the terms is descriptive of the conduct of the secondary participants of RNA and Mr El Saadi. Each summons charges RNA and Mr El Saadi with the conduct of aiding, abetting, counselling or procuring the commission of the offence, without specifying which one is the applicable conduct for each offence. The charges, therefore, leave unclear whether the offending conduct of RNA and Mr El Saadi is of counselling or procuring the commission by the principal offender of the offence, so as to be an accessory before the fact or one who is absent at the time of commission of the offence by the principal offender, or of aiding or abetting the commission by the principal offender of the offence, so as to be a principal in the second degree or one who is present at the commission of the offence by the principal offender.
Nevertheless, although the state of mind for the conduct involved in each of the terms may vary, common to all of the terms is that the conduct involves the intentional assistance or encouragement of the principal offender in doing the things which go to make up the offence. As Gibbs CJ said in Giorgianni v The Queen at 487-488:
"No one may be convicted of aiding, abetting, counselling or procuring the commission of an offence unless, knowing all the essential facts which made what was done a crime, he intentionally aided, abetted, counselled or procured the acts of the principal offender. Wilful blindness… is treated as equivalent to knowledge but neither negligence or recklessness is sufficient."
This, then, is the relevant state of mind of the secondary participants of RNA and Mr El Saadi in aiding, abetting, counselling or procuring the principal offender to commit an offence against s 4.2(1)(b) of the EPA Act by carrying out development otherwise than in accordance with the development consent. In order for RNA and Mr El Saadi to be secondary participants in the commission of an offence against s 4.2(1)(b) of the EPA Act, the prosecutor must prove, or RNA and Mr El Saadi, by their pleas of guilty to each offence, must admit, that they knew all of the essential facts which made the conduct of the principal offender an offence against s 4.2(1)(b) of the EPA Act. These facts are that: an environmental planning instrument provides that specified development may not be carried out on the land except with development consent; the work carried out is "development" within the meaning of that term in s 1.5(1) of the EPA Act; that development is the specified development for which development consent is required under the environmental planning instrument; a development consent has been obtained and is in force authorising the carrying out of that specified development on the land; and the development is carried out otherwise than in accordance with the consent and the environmental planning instrument. The facts which go to make up an offence against s 4.2(1)(b) of the EPA Act do not include any state of mind of the person committing the offence against s 4.2(1)(b), as that offence is a strict liability offence.
This does lead to differences in what knowledge the prosecutor needs to prove the principal offender and the secondary participants had in order to commit an offence against s 4.2(1)(b) of the EPA Act. The prosecutor does not need to prove that the principal offender had knowledge of all the facts that go to make up the offence against s 4.2(1)(b) of the EPA Act, including that development was not carried out in accordance with the development consent, as that offence is one of strict liability. But the prosecutor does need to prove that a secondary participant has knowledge of all the facts that go to make up that strict liability offence committed by the principal offender: see Giorgianni v The Queen at 487-488, 493-494, 500-501 and Cooper v Coffs Harbour City Council (1997) 97 LGERA 125 at 134 and footnote 39. As Mason J observed in Giorgianni v The Queen at 494:
"In general, the absence of intention as an element of the substantive offence has not been regarded as obviating the necessity for knowledge on the part of the secondary party of the essential facts constituting the offence."
As this intentional state of mind is necessary in order for a secondary participant to aid, abet, counsel or procure the commission of an offence against s 4.2(1)(b) of the EPA Act, the fact that RNA and Mr El Saadi as secondary participants in the commission of the offence had this state of mind could not make the offence they committed objectively more serious. This is consistent with the prohibitory principle in s 21A(2) of the Sentencing Act that: "The court is not to have additional regard to any such aggravating factor in sentencing if it is an element of the offence." It also reflects what was said in Elyard v R (2006) 45 MVR 402; [2006] NSWCCA 43 at [10]: "As a matter of principle, it follows that characteristics of an element of an offence should also not be treated as aggravating factors if they merely reflect the policy underlying the offence". See also Mansour v R (2011) 209 A Crim R 275; [2011] NSWCCA 28 at [46].
The prosecutor has not established, therefore, that RNA and Mr El Saadi committed the offences with which they are charged with a heightened state of mind beyond that which is an element of the offence.
Although there was a delay of around eight months before RNA and Mr El Saadi entered their pleas of guilty to the amended summonses, this was a consequence of the prosecutor electing to seek leave to amend the summonses, as result of plea negotiations between the prosecutor and RNA and Mr El Saadi. That was a proper course for the prosecutor to pursue. Nevertheless, once the prosecutor sought and obtained leave to amend the summonses, the time period for determining whether the pleas of guilty have been entered at the earliest available opportunity starts again. RNA and Mr El Saadi agreed on the day the Court granted leave to the prosecutor to amend the summonses to enter pleas of guilty to those amended summonses. This was the earliest available opportunity to enter pleas of guilty to those amended summonses. It matters not that the amendments were to the particulars of the charges and not to the charges themselves. Those amendments to the particulars to the charges were negotiated as being important to the prosecutor and the defendants and led to the defendants agreeing to plead guilty to all of the charges. In these circumstances, the full discount of 25% should be allowed.
RNA and Mr El Saadi submitted that genuine remorse has been demonstrated. They immediately stopped all building work on receipt of the Stop Work Order and have not resumed work. In the three years after the commission of the offences, they have made multiple applications for building information certificates, modification of the existing development consent and new development consents in an endeavour to regularise the lawfulness of the development. So far those applications have not been successful, although the latest applications lodged in October 2024 may yet be successful. RNA and Mr El Saadi submitted that the making of these applications is evidence of RNA and Mr El Saadi endeavouring to address the cause of the offences and rectify the illegality, demonstrating their remorse for committing the offences. RNA and Mr El Saadi submitted that until these applications to regularise the lawfulness of the development have been determined, it was not unreasonable for RNA and Mr El Saadi not to demolish and remove the unauthorised building works. The delay in undertaking rectification works is not demonstrative of a lack of remorse.
RNA and Mr El Saadi point to the personal appearance in court of Mr El Saadi at the interlocutory attendances and the sentence hearing, demonstrating his taking full responsibility for the actions of RNA and himself and their remorse for committing the offences.
Mr El Saadi, on his own behalf and on behalf of RNA, has given evidence at the sentence hearing, by way of affidavit, in which he apologised for committing the offences. Mr El Saadi said he now realises that:
"I did the wrong thing by doing the building works without Council approval and am very sorry for having done so without obtaining further approval to the 2020 DA. It had never been my intention [to] do more work than the renovations work approved by the 2020 DA, and I am sorry for my actions which were illegal, and which have caused a lot of hardship for me and family…"
Mr El Saadi reiterated that he was sorry he did the unauthorised works and "very sorry for having breached the council rules".
In the circumstances, I am satisfied that RNA and Mr El Saadi have demonstrated remorse for committing the offences. Mr El Saadi has given evidence that he and RNA accept responsibility for their actions, acknowledge the unlawfulness of their conduct and are attempting to regularise the lawfulness of the building works. These actions demonstrate remorse: see s 21A(3)(i) of the Sentencing Act. The repeated actions to apply for a building information certificate, modification of the existing development consent and a new development consent are also consistent with taking action to prevent a continuation of the offences and to address the cause of the offences, two of the forms of action mentioned in Environment Protection Authority v Waste Recycling and Processing Corporation. The personal appearance of Mr El Saadi at the sentencing hearing and earlier attendances, and his giving evidence outlining his genuine remorse and attempts to regularise the lawfulness of the development, is another form of action demonstrating remorse referred to in that case.
There is, therefore, considerable overlap between the three offences which address each of the phases of carrying out the development that was the subject of the consent. The most significant overlap is between the first offence of demolition of the existing building and the third offence of erection of the new building, as the third offence followed on from the first offence. Once walls and structures that were to be retained were demolished, new walls and structures had to be constructed in their place. There should be a reduction of the amount of the fines payable for these two offences to account for this overlap. I consider a reduction of half of the fines for each of the demolition offence and the erection of building offence is just and appropriate.
The offence of excavation has less overlap with the other two offences, as the additional excavation undertaken to create additional basement space was not directly caused by the collapse of the wall and the extra demolition of the existing house which that collapse necessitated. Nevertheless, the demolition of the entire existing house did necessitate excavation for the piers and footings and a new slab for the erection of the new building in place of the existing house. A reduction of the fine for this offence is still warranted, but it should be less. I assess a 25% reduction as being just and appropriate.
These reductions result in the following fines:
1. for RNA, $75,000 for the demolition offence, $112,500 for the excavation offence and $75,000 for the erection of building offence; and
2. for Mr El Saadi, $18,750 for the demolition offence, $28,125 for the excavation offence and $18,750 for the erection of building offence.
RNA and Mr El Saadi also submitted a further reduction of the amount of the fines should be made having regard to the close relationship between them. RNA and Mr El Saadi are "really one and the same", such that imposing a penalty on one is practically to impose a penalty on the other. As Mr El Saadi is the sole director and shareholder of RNA, any fine imposed on RNA will be borne by Mr El Saadi. Mr El Saadi will therefore pay both the fines imposed on him as well as the fines imposed on RNA.
I agree that a further reduction should be made to take account of this close relationship between RNA and Mr El Saadi. RNA did not act otherwise than through Mr Saadi. Mr Saadi carried out, and directed others to carry out, all of the work involved in demolishing the existing building, excavating the land, and erecting the new building. As noted earlier, Mr El Saadi did not idenfy in which capacity he was acting in doing this work. RNA was listed as the building contractor for the site on the notice at the front gate. This no doubt was because RNA has the builder's licence. But Mr El Saadi did all of the work.
In these circumstances, the criminality involved in RNA as a corporation and Mr El Saadi as the sole director of that corporation aiding, abetting, counselling or procuring the commission of the offences against s 4.2(1)(b) of the EPA Act, does overlap to a considerable extent but is not coterminous: see Chief Executive, Office of Environment and Heritage v Traikaero Pty Ltd; Chief Executive, Office of Environment and Heritage v Woods [2019] NSWLEC 90 at [94]-[97] and Secretary, Department of Planning, Industry and Environment v Ronald Lewis Greentree and Auen Grain Pty Ltd [2024] NSWLEC 131 at [187]. This justifies a significant reduction in the amount of the fines imposed on RNA. I consider a reduction of 75% of the fines imposed on RNA will address this factor of the close relationship between RNA and Mr El Saadi. That reduction will reduce the burden on Mr El Saadi in paying both his and RNA's fines.
Making this adjustment to RNA's fines leads to the following fines: $18,750 for the demolition offence, $28,125 for the excavation offence and $18,750 for the erection of building offence. There should be no adjustment of the fines for Mr El Saadi.
In summary, having reviewed and adjusted the fines for totality and the close relationship between RNA and Mr El Saadi, the amounts of the fines that should be imposed are:
1. for RNA, $18,750 for the demolition offence, $28,125 for the excavation offence and $18,750 for the erection of building offence; and
2. for Mr El Saadi, $18,750 for the demolition offence, $28,125 for the excavation offence and $18,750 for the erection of building offence.
RNA and Mr El Saadi opposed the making of these orders for nine reasons:
"The Defendants resist the making of an order as described in general terms (PWS at [155]) for "demolition and removal". This is opposed:
(a) Firstly, the partially completed building has caused and is causing no harm, at all, to the built and surrounding environment;
(b) Second, the partially completed building is almost completely (save for minor discrepancies) within the footprint and envelope of the approved development;
(c) Third, even if the current development application (DA) and building information certificate (BIC) are ultimately refused, a further or subsequent DA and BIC could easily be modified (TC at [20.d]);
(d) Fourth, the identified variations are objectively of such minor value, barely perceptible, and far from the type of contravention that warrant the making of a Court order, especially when the current stop work order achieves sufficient protection of the public interest.
(e) Fifth, the delay or time between the offending conduct alone is disentitling to any Part 8.3 orders.
(f) Sixth, the making of any orders is not proportionate to the actual or likely harm (which is either non-existent or insufficient or minor) caused by the commission of the offences.
(g) Seventh, would cause hardship and costs that at this stage may and will be avoided.
(h) Eighth, the stop works order serves the same purpose, practically and functionally given the harm involved.
(i) Nineth, it is against the public interest and the aims of the EPA to make serious orders, of the kind here sought, in circumstances where regularisation is available."
I consider the additional orders should not be made in these proceedings. The primary purpose of criminal proceedings is to punish the offender for past offending. The Court will punish RNA and Mr El Saadi by imposing fines in the appropriate amounts. A secondary purpose of criminal proceedings can be to remedy harm caused by the commission of the offences. In the present case, the prosecutor has not established that the commission of the offences has caused or is likely to cause harm to the environment. In this circumstance, orders to demolish and remove those parts of the building that have been constructed otherwise than in accordance with the consent would not serve to remedy any proven environmental harm.
Making demolition and removal orders at this stage is also premature. Applications for a development consent and a building information certificate are pending before the Council. The Council, or the Court on appeal, might approve these applications or amendments of the applications. The approval of those applications, or amended applications, might make some or all of the orders inappropriate. There is limited capacity for the Court in criminal matters to vary the orders that have been made. I consider it is better to await the outcome of those applications before determining what action is appropriate to remedy the unlawful works. If the applications are approved, conditions may be imposed requiring demolition and removal of certain unlawful structures or building works that are not approved to remedy the breach of the development consent. If those applications are not approved, the Council has power under the EPA Act to issue a development control order seeking the demolition and removal of those parts of the building that remain unlawful. The Council gave notice in 2021 of its intention to issue a development control order to demolish and remove unauthorised building works, but elected not to issue it. The Council can do so if the current applications are not approved. If RNA and Mr El Saadi do not comply with the development control order, the Council may bring civil enforcement proceedings in this Court seeking orders that RNA and Mr El Saadi comply with the development control order.
In response to the majority's decision, s 694(1) was amended to add "imposed under any Act, or imposed for a contempt of a court order to remedy or restrain a breach of this Act or any other Act, and" between "any penalty, fine or forfeiture" and "recovered in proceedings". There were also some consequential amendments to add new subsections (1A) and (5) defining terms used in subsection (1). These amendments allow for a council to be paid a fine imposed for a contempt of a court order.
The difficulty encountered in Hawkesbury City Council v Foster and Mushroom Composters Pty Ltd does not arise in the present case, as the fine to be applied is a fine which would be imposed by the Court under the EPA Act for an offence against that Act, rather than a fine for a contempt of a court order. Nevertheless, the case assists in understanding the procedure for application of fines when recovered.
There are three phases in the application of a fine to a council: first, the imposition of the fine; second, the recovery of the fine; and third, the application of the fine when recovered. The first phase occurs when the court imposes a fine for a proven offence in proceedings initiated by a council. By r 7.5(1) of the Land and Environment Court Rules 2007, if and when the Court imposes a fine, "the Court is to order the person on whom the fine is imposed to pay the fine to the Registrar."
The second phase is the recovery of the fine. This may occur when the person on whom the fine is imposed pays the fine to the Registrar or when Revenue NSW (formerly the State Debt Recovery Office, see Schedule 3, Part 11, s 29 of the Fines Act 1996 (NSW) abolishing the State Debt Recovery Office) takes action to recover the fine.
The third phase is the application of the fine when recovered. Rule 7.5(2) of the Land and Environment Court Rules provides that: "The Registrar is to pay into the Consolidated Fund all money paid to the Registrar on account of any fine imposed by the Court." That subrule, however, is subject to subrule (3), which provides:
"(3) Subrule (2) does not apply if an Act makes provision for payment of any fine to a statutory body or local council (for example, under section 694 of the Local Government Act 1993)."
As r 7.5(3) recognises, s 694 of the Local Government Act does make provision for the payment of a fine to a local council.
Another Act that makes provision for the application of a fine when recovered is s 122 of the Fines Act 1996 (NSW). Section 122 applies in the circumstances stated in subsection (1):
"(1) This section applies where -
(a) the Act imposing or authorising the imposition of a fine or other penalty does not make any provisions for its application when recovered, and
(b) the prosecutor is not a police officer."
Where s 122 applies, subsection (2) empowers the court to direct a moiety:
"(2) The court before which proceedings are taken to recover any such fine or other penalty may direct that such portion of it (not exceeding one-half) is to be paid to the prosecutor."
The reference in s 694(1) of the Local Government Act to a fine being "recovered" in proceedings, and in s 122(1) and (2) of the Fines Act to the application of a fine "when recovered" and to proceedings "to recover" a fine, are references to when the fine is paid by the person on whom the fine is imposed or when the fine is recovered from that person by action taken by Revenue NSW.
Understood in this context, the phrase "recovered in proceedings initiated by the council" in s 694(1) is to be construed widely. Subsection 694(5)(a) gives a wide meaning to the phrase "proceedings instituted by the council" to include any proceedings instituted under the direction or on behalf or for the benefit of the council. A fine can be described as being "recovered" in proceedings instituted by the council when it is paid by the person on whom the fine is imposed to the Registrar or it is recovered by action taken by Revenue NSW. That payment or recovery of the fine is made pursuant to the order of the Court that imposed the fine for the offence charged in the proceedings instituted by the council, and hence the fine is "recovered in proceedings instituted by the council".
Section 694(1) of the Local Government Act, therefore, operates upon the fine being paid or recovered in the proceedings in which the Court imposed the fine. No further proceedings need to be instituted by the council to apply for an order that the fine paid or recovered be paid to the council. If, however, a fine when recovered is not paid to the council, the council may institute proceedings seeking an order that the fine paid by the person on whom the fine is imposed be paid to the council. That was the course taken in Hawkesbury City Council v Foster and Mushroom Composters Pty Ltd.
Although s 694(1) of the Local Government Act operates without the need for an order of the Court, there may be benefit in the Court noting in its orders imposing and applying the fine this operation of s 694(1). As I have explained, r 7.5(1) of the Land and Environment Court Rules requires the Court, when imposing a fine, to order the person on whom the fine is imposed to pay the fine to the Registrar. Although r 7.5(2) would require the Registrar to pay into the Consolidated Fund all money paid to the Registrar on account of the fine imposed by the Court, that subrule does not apply when s 694 of the Local Government Act operates. It would assist the Registrar in the application of the fine, however, for the Court to identify in its order for the payment of the fine to the Registrar that s 694 of the Local Government Act does operate to require the payment of the fine to the council. To illustrate, the order could be in this form:
"The Court orders [the person on whom the fine is imposed] to pay the fine imposed by [the previous order imposing the fine] to the Registrar, who is to pay such fine when recovered to [the council who instituted the proceedings], pursuant to s 694(1) of the Local Government Act 1993 (NSW)."