Holroyd City Council v Ghannoum

PROSECUTOR Mr T Howard (Barrister) SOLICITORS McKees Solicitors LEGAL REPRESENTATIVES: DEFENDANT Mr I Lloyd QC SOLICITORS Hannaford Lawyers

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

1 HIS HONOUR: Mr George Ghannoum has pleaded guilty to committing an offence against s 125(1) of the Environmental Planning and Assessment Act 1979 in that he carried out development without first obtaining a development consent as required by s 76A(1) of that Act. A hearing on sentence has been held today. The parties have agreed to a statement of agreed facts which has been tendered. 2 Mr Ghannoum has given oral evidence covering, among other matters his involvement in the subject offence, his personal circumstances, his financial situation, the costs associated with filling in the excavated area the subject of the proceedings, and moneys foregone by the delay in erecting the approved dwelling on the land. Supporting documents have also been tendered. 3 The Court will now determine the appropriate sentence.

The offence 4 The defendant is charged with the commission of an offence under s 125(1) of the Environmental Planning and Assessment Act in that, on a date or dates between 22 March 2006 and 30 May 2006, he carried out development on land at 23 Clyde Street, Guildford, New South Wales, being Lot 1 and 2 in Deposited Plan 734, without a development consent obtained and in force with respect to the development, and where consent was required to be obtained and in force for that development under the provisions of an environmental planning instrument which applied to the land. The circumstances of the offence 5 The defendant is and was at all relevant times the registered proprietor of the land. The development comprised the excavation of an area approximately 9 metres wide, 15 metres long and about 3 to 4 metres deep, and construction and placement of precast concrete panels along the perimeter of the excavated area and the construction of a concrete slab on the base of the excavated area. The excavated area was located about one metre from the northern boundary of the land. 6 The defendant was present on the land with others and was the person in charge when the development was being carried out. The development carried out by the defendant required development consent pursuant to Holroyd Local Environmental Plan 1991, cl 9 and the zoning table thereto, with respect to Zone 2(a) (Residential A zone). 7 The defendant lodged a development application with the Council on 21 February 2006 for a detached, four bedroom dwelling house with two storeys. The development application did not seek approval for a basement area and, specifically, did not seek approval for the basement area and associated works that were subsequently carried out by the defendant. 8 The defendant commenced the excavation work some time after 22 March 2006. During the week of 15-22 March 2006, the Council's senior building surveyor, Mr Steve Bedano, conducted an inspection of the land. Mr Bedano observed that the land was vacant, the ground was relatively flat and there were no excavation works on the land. At that time, the only improvement on the land was a freestanding garage. 9 The Council granted a development consent, number 2006/553, to the defendant on 6 April 2006. The development consent did not provide approval for the excavation or construction of a basement area. 10 The area which the defendant excavated, and in which he placed the concrete slab and panel walls, was physically located beneath the footprint of the dwelling which the Council had approved by way of the development consent. 11 The defendant carried out the excavation works, and the erection of the concrete slab and panel walls, to construct a basement for the dwelling house that he proposed to construct on the land. The circumstances upon detection of the offence 12 On 23 May 2006, the Council's assistant building surveyor, Mr Joshua Baker, attended the land, having been informed of the excavation on the land. Mr Baker saw the excavated basement area and the concrete slab floor and panel walls. Mr Baker was directed to the defendant as the person in charge by three other men present on the land. The defendant identified himself as the owner/builder. In regard to the commencement of the works, Mr Baker and the defendant had a conversation to the following effect:

Mr Baker: "What is the excavation for?" The defendant: "I was told that it would be cheaper to excavate the site and provide support for the house this way, than it would be to drill pier holes". Mr Baker: "I don't agree with that". The defendant: "Look, I don't know, I'm not a builder, I have just been told that it would be cheaper to do it this way". Mr Baker: "Well, what is it you are doing?" The defendant: "I am getting ready to pour the concrete tilt-up panels for the house that are required to support the house because the house is a tilt-up panel type of construction and I was told these tilt-up panels are needed to support the house".

13 Mr Baker took photographs on 23 May 2006. Those photographs show the excavation and the tilt-up panels on each of the walls together with formwork where the concrete slab would be poured on the floor. 14 On 29 May 2006, the Council sent a letter consisting of a stop work notice to the defendant by a facsimile. The Council ordered the defendant to stop all works on the land, obtain a construction certificate, secure the land and shore excavated areas. 15 On the morning of 30 May 2006, Mr Baker conducted a further site inspection. Mr Baker observed that the land was fenced off and closed up. There were men present on the land working in the excavated area. Mr Baker heard banging sounds coming from within the excavated area and observed two men in the excavated area. Mr Baker saw some concrete panels had been stood in place to form four external walls above the concrete slab. He noticed a concrete slab inside the excavated section and bags of materials inside the confines of the concrete walls. Mr Baker also took photographs on 30 May 2006. 16 On the afternoon of 30 May 2006, the defendant attended the Council chambers and had a conversation with Mr Baker. Relevantly words to the following effect were spoken: Mr Baker: "Why has construction continued on the site?" The defendant: "As far as I knew it had stopped. Since you told me to stop work last week I got everyone to leave the site". Mr Baker: "So you didn't continue with the pouring of concrete on that day?" The defendant: "No, I rang the engineer and contractors to tell them to stop work until I sort out the construction certificate". Mr Baker: "Who engaged the workers to continue working?" The defendant: "I didn't. It must have been a misunderstanding between the engineers and concreters. I didn't even know they had continued until today. My PCA said I could start construction. I'm not a builder you know. I'm new to all this. I don't know what the process is". The defendant: "After you left the site last week I rang my certifier to ask where all the paperwork is and to try and sort this out. We just argued after I told him that the Council was involved. He didn't want to know anything about it. We ended up hanging up on each other". Mr Baker: "Okay. So why have you excavated the site?" The defendant: "My engineer told me it was required because the dwelling is constructed of concrete panels". Mr Baker: "I don't see why you would be required to excavate in order to construct a two storey dwelling. The dwelling might well be constructed of concrete panels but why do you need to excavate?" The defendant: "The house will have concrete panels and they need to be supported on panel...my engineer told me that piers would be a lot dearer than the excavation would be...see, these panels are to hold up the other panels" [referring to the engineering plans]. Mr Baker: "I disagree as the plans indicate a ground floor construction not for a basement". The defendant: "It's for the basement for the underneath, not the ground floor". 17 On 31 May 2006, the Council's solicitors sent a letter to the defendant, inclosing a proposed undertaking that the defendant not carry out any development activities on the land, cease all construction activities, that no construction activities be resumed until the construction certificate has been issued, and that written notification be provided to Council when a construction certificate has been obtained and before any further construction activities are carried out. 18 The defendant signed the proposed undertakings and provided them to the Council's solicitor on 31 May 2006. The defendant has complied with his undertakings. 19 On 8 September 2006, the Council issued an emergency order on the defendant requiring works to be carried out to address the observed slumping of ground adjacent to the excavated area and to provide proper drainage for the excavated area. 20 The defendant and the Council officers have been working together with their engineers to stabilise the land. The works required pursuant to the emergency order described above have not been carried out by the time of the sentence hearing. However, the parties have agreed at the on site conference held on 14 February 2007 on a revised list of works to be carried out. The parties have advised that the works will shortly be undertaken. Objective gravity of the offence Maximum penalty 21 The maximum penalty for the commission of an offence against s 125(1) of the Environmental Planning and Assessment Act is $1,100,000. Such a large penalty reflects the public expression by the parliament of the seriousness of offences of this kind. However, the range of matters to which this maximum penalty applies is large. The penalty applies to offences which range from the domestic to the commercial, from the minor to the extensive. Objective harmfulness of the offence 22 The commission of the offence involved the unlawful excavation of an area wholly located beneath the approved footprint of the dwelling house. In that sense, the commission of the offence would never have caused any significant harm in terms of visual impact or other associated amenity impacts on the defendant's neighbours. 23 The defendant's actions were also carried out during daylight working hours. They were easily able to be observed, including by a passing Council officer. At the time of commission of the offence and continuing to date, there have been no complaints by neighbours as to what took place and there have been no amenity impacts. The area surrounding the land is flat. Once the infill of the excavated area and surrounds has been completed (which will be done shortly), the physical appearance of the area will be as it was prior to the excavation commencing and with no resultant harm to the environment or the streetscape. 24 Further, there is no evidence before the Court to suggest that had the basement been completed as intended by the defendant, the integrity of the two storey house above it, once constructed, would have been in any way compromised. 25 Accordingly, the objective harmfulness of the offence is low. State of mind and reasons for commission of the offence 26 The defendant gave oral evidence that after he submitted the development application to the Council he formed the idea that it would be beneficial to have an additional area, in a basement, for storage and use by the family. He believed this could be done whilst work was being done to construct the approved dwelling house. Because of his work background in pre-cast concrete panels, he determined to use such panels around the walls of the basement. 27 The defendant knew that there was a need to lodge a development application for the construction of the dwelling house and indeed he had lodged one. Accordingly, the defendant must have known that development consent would have been required for the excavation and construction of the basement. The defendant could have amended the development application that he had lodged with the Council to incorporate his new idea of the basement underneath the dwelling house. Yet he chose not to do so. There was, therefore, premeditation in the construction of the basement and the avoidance of obtaining development consent for it. 28 The defendant's knowledge of the wrongfulness of his conduct at the time is also shown by his untruthful answers to the Council officers in the conversations that I have earlier set out when the defendant was asked the reason for excavation of the basement. The defendant knew that his conduct in constructing the basement was wrongful and he sought to evade responsibility by giving untruthful answers. 29 The premeditation of the commission of the offence with knowledge of its unlawfulness aggravates the seriousness of the offence and the culpability of the defendant. Subjective circumstances of the offender

Plea of guilty 30 The defendant has pleaded guilty at the first available opportunity at the first mention of these proceedings in the Court on 2 February 2007. He should receive the maximum discount of 25% for the utilitarian value of a plea of guilty to the criminal justice system. Contrition and remorse

31 Although the defendant upon being confronted with his wrongdoing was untruthful and avoided responsibility for his actions, subsequently he had a change of attitude. 32 The defendant complied with the Council's stop work notice. He gave a written undertaking not to carry out any development activities on the land, to cease all construction activities, to not resume construction activities until the construction certificate had been issued and to provide written notification to the Council when a construction certificate had been issued and before any further construction activities were carried out. The defendant has complied with these undertakings. The defendant will shortly comply with the emergency order that the Council issued to the defendant to carry out works to address the observed slumping of the ground adjacent to the excavated area and to provide proper drainage for the excavated area. 33 The defendant has worked with officers of the Council to stabilise the land and the defendant will shortly carry out works to effectively reinstate the land and hence remedy the breach of the Act. 34 The defendant has expressed contrition and remorse independently of his plea of guilty. Prior to the prosecutor commencing proceedings in this Court, the prosecutor's solicitor had indicated in correspondence with the defendant's solicitor that it was likely proceedings would be commenced against the defendant. In response, the defendant's solicitor indicated that if proceedings were commenced, they would not be contested. In the same correspondence the defendant, through his solicitor, agreed unconditionally to fill in the excavated area the subject of the charge. On the day the summons commencing these proceedings was made returnable in the Court, namely 2 February 2007, the defendant's solicitor indicated a plea of guilty would be entered. These actions manifest the defendant's contrition and remorse. 35 The defendant has given sworn testimony in this sentence hearing. In that evidence, he frankly and sincerely acknowledged that his actions both in carrying out the offence and in his initial responses to the Council officers were wrong. He has apologised for his conduct. He has promised not to ever reoffend. 36 These actions of the defendant in stopping work, making reparation, accepting responsibility and confessing his guilt all establish genuine contrition and remorse. This contrition and remorse should be taken into account over and above the utilitarian value of the plea of guilty. Assistance to authorities 37 As I have summarised above, the defendant has, after the initial evasiveness, co-operated with the Council. In addition, in the preparation of these proceedings the defendant has agreed to a statement of facts and has offered to pay the prosecutor's costs as agreed or assessed. No prior record

38 The defendant has no prior criminal record. Prior good character 39 Apart from having no prior criminal record, the defendant also has prior good character. The defendant gave sworn oral evidence of his personal history including his arrival in Australia, his learning English and completing his Higher School Certificate, being a prefect in his final year of school, studying and successfully completing a Diploma of Building Science at TAFE, his work experience, his marriage and children and his caring for his sick father. Character references have been tendered, one from an immediate neighbour of the land the subject of the offence, and two from family friends. The references speak to the defendant being a hardworking individual who is dedicated to his family, has cared for his parents and has supported his church community. They speak to the defendant being a trustworthy, honest and hardworking person. 40 The weight of these references is diminished somewhat by them not being addressed to the Court and not showing that the deponents were aware of the offence or its circumstances. They are also unsworn. Nevertheless, they corroborate a view that I have formed independently from the defendant's sworn testimony at the sentence hearing. Unlikely to reoffend 41 The defendant has suffered financially and personally from the experience of committing the offence. Financially, the defendant has given evidence that he has spent approximately $86,000 in excavating and constructing the basement to the point where work ceased. Subsequently, the defendant has spent a further approximately $81,000 in carrying out the various works required by the Council and in discharge of the undertakings the defendant gave to the Council. The defendant has given evidence that he will need to spend a further approximately $18,000 in reinstating the land, including filling the basement, to the state the land was in before carrying out the works. Finally, the defendant gave evidence that he has incurred approximately $14,000 in interest charges in the period from stopping work in May 2006 to date. These interest charges would not have been incurred had the defendant not carried out the illegal excavation and construction of the basement. Cumulatively, the defendant has therefore incurred over $200,000 as a result of committing the offence. This is a considerable financial impost and certainly has shown, as the defendant has readily acknowledged, that crime does not pay. 42 The defendant has also suffered personally. The defendant gave evidence of the considerable stress that has been imposed on himself, his wife and his family, and his father. The defendant tendered a medical certificate which showed that he is suffering depression and anxiety. The defendant also spoke of the stress that has been caused in his relationship with his wife. The defendant also said that his father has suffered as a result of the offence and subsequent prosecution. 43 The defendant frankly acknowledged that by all of these factors he has learnt his lesson and would not reoffend in the future. I consider that the defendant is unlikely to reoffend in the future. I also consider that the defendant has excellent prospects of rehabilitation due to his age, work, family circumstances and prior good character and the extent to which he has expressed contrition and remorse. Financial means of defendant 44 The defendant has provided information from various financial returns to show that his income has been modest. He gave evidence that in order to fund the various expenses which will now be thrown away (that I have set out above), he has had to sell the property at which he and his family have resided at 2 Vulcan Street, Guildford. The defendant is now living with his family in rented premises. I take into account the means of the defendant in fixing the amount of the fine. Synthesis of objective and subjective circumstances 45 Taking all of these objective and subjective circumstances into account, I consider the appropriate penalty for the commission of the offence is a fine. I consider that the appropriate amount of the fine, prior to taking into account the discount for the utilitarian value of the plea of guilty, is $15,000. After discount for the utilitarian value of the plea of guilty of 25%, this gives a fine of $11,250. Orders 46 The Court makes the following orders:

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

3. The defendant is to pay the prosecutor's legal costs of the proceedings as agreed or assessed.

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.