Holroyd City Council v Shi

Keir & Anor v Sutherland Shire Council [2004] NSWLEC 754; Gittany Constructions Pty Ltd v Sutherland Shire Council (2006) 145 LGERA 189; CASES CITED: Bentley v BGP Properties Pty Ltd (2006) 145 LGERA 234; Holroyd City Council v Ghannoum [2007] NSWLEC 351; Veen v The Queen (No.2) (1988) 164 CLR 465

PROSECUTOR Mr T Howard SOLICITORS LEGAL REPRESENTATIVES: McKees Legal Solutions DEFENDANT Mr J Costigan SOLICITORS LAS Lawyers & Consultants

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

1. His Honour: The Defendant in these proceedings, Mr "Kevin" Shi, was charged with an offence against s.125(1) of the Environmental Planning and Assessment Act 1979, namely carrying out development without obtaining from the prosecutor Council the requisite consent required by s.76A(1) of that Act. He pleaded guilty at the first opportunity to do so, and has already agreed with Council as to the amount and timing of the payment of its costs.
2. The development works concerned a dilapidated factory located at 10 Guernsey Street or Road, Guildford. The agreed facts (Exhibit P2) and an affidavit from the Defendant sworn on 21 November 2007 indicate that Mr Shi and his brother acquired the property on 30 May 2006, and set out to renovate it for use as a commercial brothel. A Development Application seeking approval for the necessary alterations and for the change of use was lodged with Council on 22 June 2006.

3. The Defendant was correctly advised by his consultant that, if no objections were received, the Council could grant approval for the works and the brothel. The relevant planning instruments, maps, etc. are in evidence (Exhibits P1 and P3). In par 13 of his affidavit the Defendant says he was told by his advisors that there would be "good chances of obtaining the approval".
4. Part of the programme of alterations involved demolition of the front portion of the factory building, and it would appear that the materials demolished included asbestos cement. Council received a complaint about the presence or demolition of asbestos material, and a Council officer inspected the land on 27 June 2006, finding building works under way. That officer does not appear to have ordered, or caused others to order, a cessation of the works at that time, but he gave certain directions about fencing, clearing, signage, and the sealing of the skip bin into which the asbestos was partially deposited. Counsel for the Defendant submits that the Defendant attended immediately to the fencing and signage, and had his brother, a licensed plasterer, attend to the removal of the asbestos to an EPA facility, and to the clearing of the debris, the next day, at a cost of some $3,000. No evidence of the safe disposal of the material is before the Court, despite a request from Council in November 2006 for relevant receipts to be produced.

The evidence indicates that the building was exposed to both weather damage, and the risk of trespassing and vandalism, at the time of its acquisition, and the Defendant asserts that the early works on the site were aimed at securing it and protecting it from damage. He admits, however, that in doing those urgent "repairs" he commenced, without any development consent, some other internal framing works, etc.

On the other hand, he says he suspended work for "around six weeks" while his development application was notified, and that, after "around two months", he resumed work, as "the premises remained unsecured and the interior was exposed to the weather", and he had again noticed evidence of invasion and vandalism (see pars 13-18 of his affidavit). Without pursuing his development application, he proceeded to do most of the work he proposed. The Council had "stopped the clock" by seeking on 12 July 2006 additional fees and information, neither of which were provided until 26 September 2006, the day after Council's traffic engineer inspected the site as part of the Council's assessment process. The inspection on 25 September 2006 showed that "the construction of the proposed development was nearly completed".

Council's town planner visited the site on 29 September 2006 and again on 11 October 2006. The Council officers then, on 12 October 2006, completed their report for Council, recommending refusal of the Defendant's development application.

On 13 October 2006 Council's solicitors wrote to the Defendant regarding the development works conducted without approval. These Class 5 proceedings were foreshadowed, and the Defendant was asked to stop work, to give an undertaking to do no further work until approval was given by Council, and to meet with Council to discuss the matter. The Court has been told that the undertaking was given and the meeting held.

Council dealt with the development application on 20 March 2007 and refused it on several grounds (see pp 71-74 of the attachments to the Statement of Agreed Facts, Exhibit P2). The Defendant says (in pars 20-21 of his affidavit) that he and his brother have now abandoned the brothel venture and will seek to sell the property.

I must say that the Prosecutor has put its case in a very balanced and sensitive way, acknowledging that, in all the circumstances, this case is at the "lower end of the scale" in terms of gravity and appropriate penalty. The Court has been referred to several authorities which could equally be relied upon by the Defendant.

No one can assert an exemption from the requirements of the Environmental Planning and Assessment Act 1979 when it comes to development works, and applicants presume an approval at their peril. The strictures of the legislative regime are there for cogent and desirable purposes, and should be obeyed. See Keir & Anor v Sutherland Shire Council [2004] NSWLEC 754; Gittany Constructions Pty Ltd v Sutherland Shire Council (2006) 145 LGERA 189; Bentley v BGP Properties Pty Ltd (2006) 145 LGERA 234.

As Mr Howard's written submissions point out, the remaining uncertainty about what happened with the asbestos would not subsist had the Council had the opportunity to determine the development application. If a consent were agreed to, Council could have imposed appropriate conditions and been of assistance in solving that serious issue. In any event the Defendant has not, at least in these proceedings, been charged with anything regarding asbestos, except as incidental to his failure to obtain consent to the demolition of a building containing it. It is relevant to note in this regard that he states his occupation as "plasterer".

In the end analysis, the Court is satisfied that Mr Shi clearly knew that a development consent was required, yet he embarked on his project, without such consent, to pursue his commercial objectives.

Despite evidence of some restraint in completing the works, presumably after Council's letter of 12 July, he knew from that letter that Council required more information and statutory fees from him before it would determine his development application. The construction work was very well advanced indeed by the time he provided the information and paid the fees.

In terms of sentencing proportionality the substance of the Defendant's offence is that he mistakenly presumed his works would receive the Council's consent, and, as Mr Howard put it, he "jumped the gun in carrying out the works".

The Prosecutor concedes that "this does not rise to a high level of criminality" (see Veen v The Queen (No.2) (1988) 164 CLR 465), and alleges none of the aggravating features identified in s.21A of the Crimes (Sentencing Procedure) Act 1999. The Prosecutor also acknowledges the appropriateness of a discount for the Defendant's early guilty plea.

1. There has been no illegal use of the property for any gain.
2. He misunderstood or overestimated the professional advice he received.
3. He has cooperated with the Council, despite desiring to secure and protect his property, and taking some time to advance consideration of his development application.
4. He has suffered serious commercial losses, culminating in recent total loss of the support of his financier, and poor prospects of now selling his property, with its purpose-built improvements for a use not approved by the Council, for a price sufficient to cover his indebtedness.
5. His family were the only members of the general community exposed to any harm from the asbestos, and its presence on the site was acknowledged in his development application.
6. The amenity of the area has suffered no adverse impact; indeed the public presentation of the building is, arguably, on the evidence before me, improved as a result of the renovation works.
7. He pleaded guilty at the first opportunity, and will pay Council's costs as agreed.
8. He has no criminal record, and no record of environmental misconduct.
9. He has produced two recent character references from commercial associates who hold him in high regard. He is described as "a very honest, reliable, ethical and kind and understanding man", said also to be "of impeccable integrity, very honest, very ethical and of sound reliability".

18. Obviously every case turns on its own individual or unique facts but I have found the learned Chief Judge's remarks on sentence in Holroyd City Council v Ghannoum [2007] NSWLEC 351 to be very apposite to the situation in this matter, despite its concern with a residential development.

· the objective harmfulness of the offence in this matter is very low; · the Defendant knew he needed consent and he deliberately proceeded at several stages without it; · he has already paid a huge financial price for his actions, but has shown some genuine contrition in his approach to the aftermath of those actions; · he has no prior record; · he acknowledges he will be called upon to pay a fine and substantial legal costs; · he is unlikely to reoffend in this way; and · he appears to be held in high regard by business associates. 20. It has not been put to me that his financial means dictate any particular leniency.

21. I consider the appropriate fine to impose in this matter is $12,000, less a 25% discount for the utilitarian value of the plea of guilty.

Orders 22. The formal orders of the Court are: 1. The Defendant is convicted of the offence charged. 2. The Defendant is fined $9,000. 3. The Defendant is to pay the Prosecutor's legal costs as agreed or assessed. 4. Exhibit P1 and Exhibit P3 may be returned.

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.