Gosford City Council v Colmer, K J

50094 of 2002 GOSFORD CITY COUNCIL v KENNETH J COLMER

HIS HONOUR

1. The Defendant has pleaded guilty to a charge of an offence against the Environmental Planning and Assessment Act 1979 in that in or about early April 2002 at Marlow in the State of New South Wales he did carry out development on land subject to a provision of the environmental planning instrument which provided that such development was prohibited.

According to the Summons the relevant land was Lot 36 Deposited Plan 755221 at Greenmans Road, Marlow in the City of Gosford, a property that the Defendant owned for some considerable period of time until very recently.

Particulars of the offence endorsed upon the summons and I quote are as follows, The Defendant did demolish the dwelling built from the material of the form agreement in the dwelling, such demolition being prohibited development pursuant to the provisions of the environmental planning instrument for the purposes of the Environmental Planning and Assessment Act namely clauses 5(2) and clause 40B of Gosford City Council interim development order number 122.

The particular of the act done by the Defendant was that he demolished the dwelling.

The parties have helpfully tendered a jointly prepared Statement of Agreed Facts which has become Exhibit 1 which was amplified by a number of affidavits, statements that were read and tendered in the case.

The Defendant became the owner of the subject land in 1974 when he acquired it from his father. His father had established on the land a recreational park or caravan park used for holiday, camping and the like and the Defendant was engaged in that use of the land from the time he acquired it in 1974 until he sold it in 2002.

The building, the subject of the charge, was a modest cottage which he himself occupied throughout most of the period that he was associated with the land up until early 2001 from which time it was unoccupied.

The building is listed as an item of non-Aboriginal heritage in Sydney Regional Environmental Plan No 20 (SREP 20). The relevant listing being, Wharfin House (formerly the Greenman Inn) portion 36 Parish of Cowan, Marlows Creek.

There is a certain ambiguity in that listing inasmuch as the bracketed matter formerly the Greenman Inn, is not precisely identified with either of the nouns which precede it, the Wharfin House. But the case has been conducted and the Defendant has entered his plea of guilty upon the basis that the relevant listing as an item of non Aboriginal heritage under the SREP 20 was applicable.

In terms of that instrument, demolition of the item required consent. But as Prosecution Counsel has demonstrated, demolition of the building was either absolutely prohibited or at least prohibited conditionally in the sense of requiring consent by virtue of the provisions of interim development Order No 122 which continues to apply in the City of Gosford as a deemed environmental planning instrument.

Whether the development was absolutely prohibited or prohibited in a qualified sense, depends upon how one interprets that planning instrument insofar as cl 5(2) of the instrument applies to Zone No 7A - Conservation and Scenic Protection Zone which is the relevant zoning of the relevant land.

I do not, myself, think it is necessary that I attempt to resolve the question whether the prohibition was absolute or qualified by that instrument. The arguments cut both ways and in the circumstances of this case where the particulars of the charge were that the development was prohibited it is sufficient to regard that particular as stating prohibition in terms of either absolute or qualified prohibition terms.

The circumstances in which the unlawful act were carried out are set forth in the Agreed Statement of Facts (Exhibit 1), amplified by the affidavit sworn by the Defendant on 5 December 2002, corroborated by the statements or affidavits of two other persons who had a connection with the subject land as being owners or occupiers of caravans camped on the subject land over a long period of time and more particularly their observations of the devastating effects of a cyclonic-type storm event which hit the area in February 2002 and caused widespread damage including significant damage to the cottage, the subject of the present charge.

The evidence satisfies me that the damage caused by the storm event to the cottage left it in a significantly damaged state and unsafe condition and I accept the bona fides of the belief of the Defendant that it was unsafe in its context, that is, on land used as a recreational, camping area frequented by people including children, and I accept the Defendant's evidence that being concerned at the dangerous state of the cottage, he took it upon himself to demolish it completely and did so either in March or early April following the February storm event.

The evidence also establishes that in so acting, the Defendant was aware that he required approval for the demolition and that he had not sought it.

Although I find the Defendant demolished the cottage in the knowledge that he required consent from the Council, I do not find that his action was principally activated or motivated by any attitude of contumacy or contumeliousness.

The evidence establishes that the Defendant was well aware of the ongoing processes over a period of more than two decades concerning the listing of the cottage as a heritage item. Indeed, over that period of time he was actively involved in conducting research and making representations by way of objection to the Council's sundry proposals to list the property as a heritage item.

All of those efforts appeared to be directed towards the Council's proposals for heritage listing and perhaps the irony of the situation is that the listing achieved by the Regional Environmental Plan which came into force in November 1997 appears to have passed relatively unnoticed.

That plan of course was not the initiative of the Council but was the initiative of the Department and the Minister. But nonetheless, it achieved a heritage listing of the aspects of the property that I have mentioned.

Having successfully quelled for many years the Council's attempts to include the cottage on its list of local heritage, the Defendant was confronted by a reviver in 2001 of the Council's desire to list the property as a Heritage Item. This prompted the Defendant to make representations to the Council, both in written form with the opportunity to address the relevant committee of the Council, and coincidentally it was but a few days after his apparent successful address to the Council committee that the storm hit the area and significantly damaged the cottage.

The evidence of Mr Scorgie, a development control officer employed by the Council, deposes to conversations on two occasions with the Defendant after the cottage had been demolished. It does establish that the Defendant was aware, as I say, of the listing under the Regional Plan but it also discloses a firm conviction on his part that the heritage listing was misconceived inasmuch as what was thought to be the utilisation of remnant material of the ancient Greenman Inn had not been established.

It is true, as the Prosecuting Council has submitted, that the fact of the heritage listing is itself crucially relevant to the charge which of course has been admitted by the Defendant's plea of guilty, and it is not to the point for the Court to consider the debatable points as to the soundness of that listing.

I accept the submission in part but I also accept Defence submission that that question which certainly appeared to be resolving itself in favour of the Defendant's representations to the Council at the time, or shortly before the offence was committed, is relevant to the question of penalty and culpability on the Defendant's part.

In saying this, I am not suggesting that a Defendant charged with an offence of demolishing a listed heritage building can lightly escape penalty by suggesting that his or her opinion of the heritage listing was that it was misconceived or that they begged to differ with the decision of the listing authority. But that is not this case for as I have pointed out the Defendant spent much time over a period of 20 years or so intermittently in putting submissions to the Council which were supported by his own research and inquiry into the past. And in the present case itself, the Defendant has read an affidavit of Mr Redman whose father owned the property from 1920 to 1950 and subsequently transmitted it to his son who sold it in about 1963, and his evidence in his affidavit indicates that the cottage was built in 1950 and was not the cottage that his late father had lived in earlier in the piece. This matter, of course, does not conclude one way or the other the legitimacy of the listing, nor does it necessarily shed light on the question of whether any of the materials in the erstwhile inn were utilised in the cottage built in the fifties which may have been utilised in the earlier cottage lived in by Mr Redman's father.

But it all indicates the conscientious way in which the Defendant went about dealing with suggestions from time to time emanating from the Council concerning the heritage value of the property and the cottage in particular.

Having regard to all of the facts as I have summarised them, I am of the opinion that the proven facts call in this case for a conviction of the admitted offence. In so concluding, I have come to the view that this is not an appropriate case to dismiss or discharge the Defendant conditionally or unconditionally pursuant to the Crime Sentencing Procedure Act 1999, s 10.

I have not, pursuant to subsection (2), been satisfied that it is inexpedient to inflict any punishment other than a nominal punishment, or that it is expedient to release the Defendant on a good behaviour bond. In reaching that view, I am to take into account the fact as mentioned in subsection (3) and Defence Counsel has drawn attention especially to paragraph (c), the extenuating circumstances in which the offence was committed, and (d) any other matter that the Court thinks proper to consider.

In respect of the former matter, reliance has been placed upon the dangerous state that the cottage was left in following the February storm and the responsible decision made by the Defendant still conducting the business of caravan park on the land to demolish the building because it presented a danger. A danger that would be real to a person residing or visiting the caravan park, especially children.

In relation to (d), any other matter, Defence Counsel has drawn attention to the confusing ebb-and-flow approach of the Council in relation to the heritage listing of this cottage. These matters weigh of course in favour of the Defendant, but I do not think that the offence can be regarded as of a trivial nature and in fairness to him Defence Counsel did not suggest that this was the case either.

The offence of demolishing the building while it enjoyed a listing as a Heritage Item is by its intrinsic nature an offence of some seriousness and it is that factor in particular which leads me to the conclusion ultimately that this is not a case for relief in favour of the Defendant pursuant to the Crime Sentencing Procedure Act, s 10.

Having concluded that the facts of the case warrant the recording of a conviction, the question of penalty immediately must be encountered. In my judgment, the charge is by its nature, a charge of a serious offence.

That much is clear. The subjective culpability of the Defendant has caused me greater difficulty of assessment.

All in all, the Defendant's conduct has been reasonable and responsible, except for the fact that he at all material times knew he needed consent before demolishing the cottage.

I have considerable sympathy for the Defendant in the sense of incredulity with which he must have regularly faced the waves of initiative coming from the Council to record the cottage as part of the local heritage. As I say, that process ebbed and flowed for 20 years, and coincidentally was revived in 2001 not long before the cottage was demolished.

I hastily add my finding that I do not associate the reviver of the Council's consideration of heritage listing and the Defendant's representations including his addressing the committee as in any way being causative of the Defendant's decision to demolish the cottage because on the evidence it is apparent that his representations to the Council were likely to be successful yet again in resisting the initiative for heritage listing.

Accordingly, I do find that the principal motivation and motive for the Defendant's action was his belief that the building was unsafe especially in the context of the active use of the grounds as a caravan park and that it was no longer of any use to him.

The only point of culpability from which the Defendant is not, and cannot on the evidence, be absolved is that in demolishing the cottage he knew that he ought to have obtained the prior consent, and even though he passionately and probably on good grounds believed that the heritage listing was unsupportable, he knew of the listing as a fact and the legal obligations attendant thereon.

Accordingly, the situation confronting the Defendant in carrying out the unlawful act was one of mixed motive and mixed culpability. The culpable aspect was his knowledge that consent was required. The understandable motive was his concern to protect persons from the danger of the badly damaged unsafe building following the storm.

It is agreed by Prosecuting Counsel that the Defendant admitted the offence when it was investigated and a plea of guilty has been entered at the first opportunity.

These mitigating factors, together with the fact that this is the first known offence committed by the Defendant, all operate to require a reduction of the penalty.

The maximum penalty for the offence is $1.1 million. That is the offence created by the Environmental Planning and Assessment Act, s 125. Obviously, that omnibus offence creating provision creates a multitude of acts and defaults, and Prosecuting Counsel has not suggested that this act of the Defendant would justify a significant penalty.

In my judgment, a penalty at the low end of the spectrum of overall gravity is justified. In my judgment, having regard to the mitigating factors, and the reduction of penalty required by their existence, the penalty to be imposed in the present case should be $5,000.

The Defence submitted that this was not a case where costs should be ordered against the Defendant, and submitted that the prosecution was launched without fully investigating the matters, that it could have been investigated and that the Prosecutor should not have its costs, or if there were to be costs they should be limited costs.

In my view, no reason has been given to depart from the Court's usual practice of ordering costs in favour of the Prosecutor in the event of a conviction of the charge being made. I accept Prosecuting Counsel's submission that in this case the Council confronted by an act done deliberately, though not wantonly, being an act which on the face of it challenged the very integrity of the planning regime enforced in the local area, namely doing an act absolutely prohibited or at least conditionally prohibited subject to consent, the Council was fully entitled to regard the offence as one warranting prosecution.

In the circumstances, I propose to order the Defendant to pay the costs of the Prosecutor in the sum agreed. Or failing agreement, as determined in accordance with the Land and Environment Court Act 1979, s 52(2).

For all the foregoing reasons, I make the following orders,

1. The Defendant is convicted of the offence as charged.

2. A penalty of $5,000 is imposed in respect of the conviction.

3. The Defendant is to pay the Prosecutor's legal costs in the sum determined in accordance with the Land and Environment Court Act, s 56(2).

4. The exhibits, except for Exhibit 1 (the statement of agreed facts) may be returned.

STEPHEN: Could I request time to pay, your Honour, three months for the $5,000 penalty?

HIS HONOUR: I haven't got the power. The Fines Act 1996 has taken away the power from the judges to either order time to pay or payment by instalments. Instead it has vested both those functions in the registrar of the Court. The Fines Act requires a fine to be paid within 28 days of its imposition but there is provision in the Fines Act for an application to be made within that time to be made to the registrar of the Court for time to pay and/or payment by instalments.

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