Holroyd City Council v Katia Abouantoun and Antoun Abouantoun t/a AKA Demolition and Tipping

CITATION : Holroyd City Council v Katia Abouantoun and Antoun Abouantoun t/a AKA Demolition and Tipping [2003] NSWLEC 379 PROSECUTOR: Holroyd City Council

PARTIES : DEFENDANTS: Katia Abouantoun and Antoun Abouantoun t/a AKA Demolition and Tipping ABN 95 972 313 792

FILE NUMBER(S) : 50042 of 2003 CORAM: Lloyd J KEY ISSUES: Prosecution :- plea of guilty - penalty - development prior to commencement of consent - strict liability offence - council supervised work - no previous convictions - capacity of defendant to pay fine Crimes (Sentencing Procedure) Act 1999 s 21A(2), s 21A(3) LEGISLATION CITED: Environmental Planning and Assessment Act 1979 s 76A(1), s 80(3), s 125(1) Environmental Planning and Assessment Regulation 2000 cl 95(5) Cabonne Shire Council v Environment Protection Authority (2001) 115 LGERA 304; Caralis & Ors v Smyth (1988) 65 LGRA 303; CASES CITED: Cooper v Coffs Harbour City Council (1997) 97 LGERA 125; Mosman Municipal Council v Menai Excavations Pty Limited (2002) 122 LGERA 89; R v Thompson (2000) 49 NSWLR 383 DATES OF HEARING: 31/10/2003 EX TEMPORE JUDGMENT DATE : 10/31/2003

PROSECUTOR: Ms J M Jagot (barrister) SOLICITORS: McKees LEGAL REPRESENTATIVES: DEFENDANTS: Mr J T Johnson (barrister) SOLICITORS: Storey & Gough

JUDGMENT:

• 9 - IN THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES 50042 of 2003

31 October 2003 HOLROYD CITY COUNCIL Prosecutor v KATIA ABOUANTOUN AND ANTOUN ABOUANTOUN T/AS AS AKA DEMOLITION AND TIPPING (ABN 95 972 313 792) Defendants EXTEMPORE JUDGMENT

HIS HONOUR: 1 The defendant, Katia Abouantoun, has pleaded guilty to a charge that, at Nos. 18-22 Meehan Street, Granville between 30 December 2002 and 11 January 2003, she did carry out development, namely demolition of houses, without a development consent being in force for that development, in breach of ss 76A(1) and 125 of the Environmental Planning and Assessment Act 1979 ("the EP&A Act"). Section 76A(1) of the EP&A Act provides that if an environmental planning instrument provides that specified development may not be carried out except with development consent, a person must not carry out development on land to which that provision applies unless such a consent has been obtained and is in force. "Development" is defined to include "the demolition of a building or work". Section 125(1) of the EP&A Act creates an offence when there has been a breach of s 76A(1). 2 The relevant facts have been conveniently summarised in a statement of facts agreed to by the parties. It is convenient to refer to that document in reciting the relevant facts. The defendant carries on the business of a demolition contractor in partnership with her husband under the business name AKA Demolition and Tipping. 3 On 21 November 2002 the council granted development consent for the demolition of existing structures and the erection of a residential flat building at No. 18-22 Meehan Street, Granville. The development consent was a deferred commencement consent pursuant to s 80(3) of the EP&A Act, under which the consent was not to operate until the council was satisfied as to a number of conditions being met. Those conditions related to the provision of details to satisfy the council as to disabled access to the proposed building and to its facilities. 4 The development consent also included a standard condition relating to the demolition of buildings: condition 8. Condition 8(b) states that the developer is to notify adjoining residents five working days prior to demolition. Condition 8(d) is as follows: On the first day of demolition, work is not to commence until the Principal Certifying Authority (PCA) has inspected the site. Should the building to be demolished be found to be wholly or partly clad with asbestos cement, approval to commence demolition will not be given until the PCA is satisfied that all measures are in place so as to comply with WorkCover's "Short Guide to Working with Asbestos Cement", a copy of which accompanies this Development Consent." 5 The WorkCover's guide referred to in condition 8(d) specifies the precautions to be taken when removing or working with asbestos cement sheeting. The condition was imposed, as I have said, as a standard condition. It seems that the council had a policy for the demolition of asbestos cement sheeting which it had adopted on 23 April 2002. That policy sets out the standard condition which became condition 8. The preface to the policy contains the following statement: Holroyd City Council is concerned for the safety of workers involved in the demolition and/or renovation or recladding of buildings clad with asbestos cement. This concern also extends to the neighbouring residents of construction and demolition sites that may, if developers do not follow certain procedures, be placed at risk from inhaling dangerous asbestos fibres. For that reason the Council has developed special conditions of development consent for demolition and renovation works, including the recladding of buildings, designed to protect workers and neighbouring residents from asbestos dust. 6 In accordance with condition 8(b) the developer, Dyldam Developments Pty Limited, sent a letter to the council on 11 December 2002 informing the council of its intention to demolish the buildings at Nos. 18-22 Meehan Street on Tuesday 10 January 2003 and advising the name of the demolition contractor as "AKA Demo and Tipping… Contact: Katia Abou Antoun." 7 At the time the letter was sent the deferred commencement conditions of the development consent had not been satisfied and the council had not given notice to Dyldam Developments Pty Ltd under sub-cl (5) of cl 95 of the Environmental Planning and Assessment Regulation 2000 to the effect that the development consent was now operative. Clause 95(5) of the Environmental Planning and Assessment Regulation 2000 is relevantly as follows: (5) If the applicant produces evidence in accordance with this clause, the consent authority must notify the applicant whether or not it is satisfied as to the relevant matters. 8 Apparently in response to the letter which Dyldam Developments Pty Ltd sent to the council on 11 December, there was a pre-demolition inspection by an officer of the council on 20 December 2002, following which the inspector issued an inspection certificate which states, inter alia: The works listed below are to be completed in a good and workmanlike manner; on provision of satisfactory proof to Council, the construction may proceed without requesting a re-inspection. 9 The works listed in the certificate relate to the provision of a sediment fence and to the submission of receipts "as per approval". It is not clear what the reference to the receipts is, but I accept the submission of Mr J Johnson, on behalf of the defendant, that that is a reference to receipts for the dumping of asbestos waste at an approved location. There was no suggestion by the inspector, or in the inspection report, that the consent was not yet operative. 10 At some time prior to 30 December 2002 the developer had retained and authorised the defendant to commence the demolition of the three houses on the property. The developer had informed the defendant that the council had inspected the property and that the demolition was "right to go". The defendant did not at that time have a copy of the development consent and had not seen it. She did not therefore check the conditions of that consent and did not have possession of a copy of the inspection report issued on 20 December 2002. 11 On 11 December 2002, Dyldam Developments Pty Ltd wrote to the adjoining residents informing them of its intention to demolish Nos. 18-22 Meehan Street, Granville on Tuesday 7 January 2003. Mr and Mrs Pearce of No. 14 Meehan Street, Granville are adjoining land owners and who had intended not to be present during the demolition. They were both concerned about the potential impact upon their health by the removal of any materials containing asbestos in the buildings on the property, particularly as Mrs Pearce has asthma. 12 On 30 December 2002 at approximately 7.00 am, Mr and Mrs Pearce observed that demolition of the buildings on the property had commenced. They had not been previously notified of that demolition as required by condition 8(b) of the consent. The building at No. 18 Meehan Street had some parts that were clad in material which was likely to contain asbestos. Other parts of the building were clad in a material called "Hardiflex". An officer of the council attended the property on 30 December 2002. He observed the building at No. 18 Meehan Street, which had been partly demolished by the time he arrived. He instructed workmen on the site that they would have to soak all asbestos cement surfaces before any demolition work continued and that he would be back in an hour to check. He returned about an hour later and observed that hoses were in operation wetting down broken asbestos cement sheeting and that the workmen were wearing masks. The council officer told the demolishers that they could carry on with the work. There was no suggestion by the council officer that the development consent had not yet become operative. 13 On 13 February 2003 a letter was sent by the council to Dyldam Developments Pty Ltd under cl 95(5) of the Environmental Planning and Assessment Regulation 2000 stating that the deferred commencement conditions had been complied with to the council's satisfaction and that the consent was operative from 13 February 2003. 14 The demolishers were engaged by and were acting under the direction of the defendant. The defendant has worked in the demolition industry since 1994 and has demolished more than 300 houses since December 1998. Those houses routinely included houses in the Holroyd local government area. It may be inferred, therefore, that the defendant was well aware of the standard condition imposed by the council when granting consent for demolishing buildings and which became condition 8 of the subject development consent. There is no evidence that the demolition in the present case had any adverse impact on the health of Mr or Mrs Pearce or that it had any other adverse environmental impact. 15 The defendant, subsequent to the commencement of these proceedings, has introduced new procedures in respect of demolition activities as follows. The defendant now demands a copy of all development consents from builders they contract with so they can check the consent for themselves. The defendant now demands to be provided with evidence that an inspection by the principal certifying authority has been carried out before commencing work. The defendant takes photographs of sheeting before demolition, so that it can be determined whether the material to be removed is "Hardiflex" or whether it contains asbestos. The defendant now checks the conditions of development consents to make sure all pre-demolition requirements have been satisfied. The defendant now ensures that employees obtain and retain all receipts for disposal of asbestos waste showing the address or job number for the site. The defendant ensures that she contacts the council's officers before commencing any demolition work. 16 The defendant has no prior convictions in respect of the demolition business. On 15 May 2002 the council issued a penalty infringement notice to "AKA Demolitions" for carrying out demolition without consent and not working in accordance with conditions in relation to a property at No. 71 O'Neil Street, Guildford. I accept the submission of Mr Johnson, however, that there is nothing to satisfy me on the criminal standard that the defendant was involved in that infringement. 17 The defendant has co-operated with the council in the preparation of the agreed statement of facts and pleaded guilty to the charge at an early opportunity. The defendant has also agreed to pay the council's costs. As I have noted, the defendant carries on the business of a demolition contractor in partnership with her husband. Their joint income for the year ended June 2002 was approximately $66,000. It may be inferred therefore, that this is not a large business. It is a family business in which the defendant and her husband have one full time employee and an occasional part time employee. They maintain two trucks. They support five children, all of whom live at home. 18 Under the Crimes (Sentencing Procedure) Act 1999 the Court is required to have regard to the aggravating factors referred to in section 21A(2) of that Act and to the mitigating factors set out in section 21A(3) of that Act. 19 The relevant aggravating factors are as follows. The defendant is a person experienced in the demolition industry having worked in that industry for nine years. If the consent had been operative, condition 8 would have to be satisfied, including the requirement of prior notice to the adjoining residents and the requirement for an inspection by the principal certifying authority prior to demolition to ensure that if asbestos was present the requirements of WorkCover had been satisfied. As an experienced demolition contractor, the defendant ought to have had in place the procedures which have now been adopted. The defendant did not check the conditions of consent, did not check to see whether it was a deferred commencement consent and thus did not check the requirement of condition 8. It is clear that the defendant was in control of the causes of the offence. It is clear that the defendant did not give the occupiers of the neighbouring property the opportunity of being away from their home before demolition commenced. 20 As to the relevant mitigating factors I take into account the following. The defendant checked with the builder before undertaking the demolition and had been told that it was "right to go". On 20 December 2002 the council's officer carried out a pre-demolition inspection and issued a certificate which states that work may proceed without requiring a re-inspection. On 30 December 2002 when demolition commenced a council's officer attended at the site and instructed the defendant's workmen on how to go about the work, including the fact that they had to soak asbestos cement surfaces before demolition; and he then returned an hour later and advised the defendant's workmen that they could carry on work. 21 The deferred commencement consent subsequently became operative, so that it is clear that there was no evidence of any harm to the environment. In particular there was no breach of WorkCover conditions and no evidence of harm to Mr and Mrs Pearce. I take into account the fact that the council was, or must be taken to have been aware, of the work and was in fact supervising the work on both 20 December 2002, before it commenced, and on 30 December 2002 when work had commenced. The defendant, of course, complied with the council officer's instructions on 30 December 2002, those instructions being to wet down asbestos cement sheeting and to then carry on with the demolition work. 22 I accept the defendant as having no prior record of convictions during nine years in the industry. I accept that the defendant has taken the steps that I have outlined above, being the new procedures adopted before now undertaking any demolition work. The defendant has also co-operated fully with the prosecutor, not only by entering an early plea of guilty but also in the preparation of the agreed statement of facts and has also agreed to pay the prosecutor's costs. 23 The offence in this case is one of strict liability. There is thus an onus on those who carry out development, including demolition work, to ensure that any necessary development consent has been obtained or is in place, and that any relevant conditions of consent are complied with. Reliance upon assurances given by others does not in the case of a strict liability offence, operate to exculpate a defendant: see Mosman Municipal Council v Menai Excavations Pty Limited (2002) 122 LGERA 89 at 96. As was observed in that case, the system of planning control would be somewhat ineffective if persons were to carry out development, including demolition work, without ensuring that necessary development consents had been obtained or were in place, and that any relevant conditions of consent were complied with. This suggests a need to impose some penalty which reflects a general deterrent and to reinforce this kind of obligation. 24 The maximum penalty for a breach of a provision of the EP&A Act is at present $1.1 million. That penalty was increased from $110,000 with effect from February 2000. A ten fold increase in the maximum penalty does not mean a ten fold increase in the fine, as was observed by Giles JA in Cabonne Shire Council v Environment Protection Authority (2001) 115 LGERA 304 at 312. Offences of low criminality remain offences of low criminality, even if the maximum penalty is increased. The penalty for an offence against the EP&A Act covers a wide range of conduct ranging from deliberate offences which generate great environmental harm to inadvertent acts giving rise to no harm at all. 25 It is relevant that the deferred commencement consent had not become operative for reasons unconnected with the demolition process. The deferred commencement condition related to the council being satisfied about details relating to disabled access, which details were subsequently supplied and the council's requirements satisfied. As I have said, there must be a penalty which demonstrates an element of general deterrence. This was recognised by the Court of Criminal Appeal in Cooper v Coffs Harbour City Council (1997) 97 LGERA 125 at 143, where it was said that there must be an element of general deterrence in dealing with significant breaches of planning laws. 26 Whilst the Court is required to have regard to the principal of even-handedness, little can be gained from a comparison with other cases such as those relied upon by the prosecutor in this case. I refer in particular to Mosman Municipal Council v Menai Excavations to which I have referred, and to Caralis & Ors v Smyth (1988) 65 LGRA 303 at 309. Those cases were instances where there was a demolition of a heritage building, for which no consent existed and for which no consent was ever likely to be forthcoming. 27 In imposing a penalty for this case, I have regard to the capacity of the defendant to pay as required by s 6 of the Fines Act 1999. As I have said, the defendant and her husband have relatively modest means. Their combined income is not particularly great and they have the obligation to support five children. In all the circumstances it is clear that a penalty at the lower end of the scale is appropriate. In view of the early plea of guilty and the other matters to which I have referred, I am prepared to reduce the penalty which would otherwise be imposed by 35 per cent. In R v Thompson (2000) 49 NSWLR 383 at 419, the Court of Criminal Appeal accepted that a discount in the range of 10 to 25 per cent on sentence was appropriate for a plea of guilty, the timing of the plea being significant. In the same case it was also accepted that allowing discounts of up to 35 per cent for pleas of guilty, encompassing all relevant matters was appropriate. As I have said, this is an offence at the lower end of the scale. An appropriate penalty would have been $6,000 which is reduced by 35 per cent to $4,000. The appropriate orders of the Court are as follows: The Court orders that:

I hereby certify that the preceding 28 paragraphs are a true copy of the reasons for judgment herein of the Honourable Mr Justice Lloyd.

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