Hunter's Hill Council v Touma

PROSECUTOR: Mr T Howard (barrister) SOLICITORS: HWL Ebsworth Lawyers LEGAL REPRESENTATIVES:

DEFENDANT: Mr P R Clay (barrister) SOLICITORS: Gadens Lawyers

JUDGMENT:

• 6 - IN THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

1 HIS HONOUR: The defendant, Raymond Touma, has pleaded guilty to an offence that between 1 May 2007 and 22 June 2007 at Gladesville, he committed an offence against s 125(1) of the Environmental Planning and Assessment Act 1979, in that he did carry out development on land being development which required development consent under the provisions of an environmental planning instrument which applied to the land where a development consent had not been obtained and was not in force, contrary to s 76A(1)(a) of that Act. 2 The parties have conveniently settled on an agreed statement of facts which are in a relatively confined compass. 3 The relevant property is known as Nos. 225-227 Victoria Road, Gladesville, which lies within the local government area of Hunters Hill. Constructed on that property is a two-storey building known as "the Glades Centre", which has a frontage to Victoria Road and rear lane access. 4 The ground floor of the Glades Centre is occupied by retail shops. Traversing the centre of the ground floor is a pedestrian arcade. The first floor of the building comprising about one-quarter of the building footprint is now occupied by a series of office spaces which are the subject of the present charge. That is, the offence to which Mr Touma pleads guilty relates to the unlawful construction of the first floor of the Glades Centre for office space. 5 On or around 19 August 2005, the subject property was purchased by R & N Superfund Pty Limited. R & N Superfund is a corporate vehicle used by Mr Touma and his wife for the management of their superannuation funds. When the company purchased the Glades Centre it did not contain a first floor level. 6 Between about August 2006 and June 2007, Mr Touma carried out development on the subject property, comprising the construction of the office spaces, reception area, kitchen and bathroom as a second floor, for the purpose of their use as commercial office space in what had been part of the existing roof space within the centre. 7 The carrying out of the development did not alter the external fabric of the building except in minor respects of negligible impact. At all relevant times Hunter's Hill Local Environmental Plan No 1 applied to the subject property, under which it was zoned 3(a) Business General. Within that zone the carrying out of development for the said purpose was permissible only with the prior development consent of the council. 8 The position, as I understand it, is that the defendant's company was required to vacate its previous offices and the office space was required for its purposes. 9 On 26 April 2007, the council received a development application for conversion of the roof space in the building into a commercial area, that is for a change of use to office, and internal fit-out. That development application was subsequently approved by the council on 10 June 2008, subject to conditions. The conditions are at present the subject of an appeal to this Court in Class 1 of its jurisdiction. Nevertheless, it seems that the council has no objection to the conversion of the roof space to offices. 10 Mr Touma has given evidence, both by affidavit and orally. He says that upon commencing refurbishment works for the building he became aware that there was sufficient height clearance within the existing roof void to add an additional level within the existing structure. He says that R & N Superfund was required to vacate its previous offices on 15 June 2007. He was aware that a development application was required to do the work that was done, and as I have said, on 26 April 2007 lodged the necessary development application. He recognises that he should have waited until all necessary consents were obtained before carrying out the work. He says that although it was his belief at the time that there would be no harm in proceeding, and that the approvals would be forthcoming, he now understands that it is important for the planning process that people not jump the gun no matter how they feel about the situation, and he regrets that he did not observe the proper process of the planning system. 11 Mr Touma has no prior criminal convictions of which the prosecutor is aware, and neither Mr Touma nor any company associated with him has ever been prosecuted for any environmental offence. Mr Touma has fully co-operated with the prosecutor at all relevant times, and has agreed to pay the council's costs in the agreed sum of $35,000. I accept also that there was an early plea of guilty in this case, and I accept as genuine the defendant's expression of remorse and contrition. 12 The question then is what penalty should be imposed. In this regard one must have regard to the purposes of sentencing set out in s 3A of the Crimes (Sentencing Procedure) Act 1999 which are as follows: (a) to ensure that the offender is adequately punished for the offence;

(b) to prevent crime by deterring the offender and other persons from committing similar offences;

(e) to make the offender accountable for his or her actions;

(g) to recognise the harm done to the victim of the crime and the community. 13 In the present case the victim of the crime is the community which understandably requires that the relevant planning controls be observed. In this case the prosecutor does not allege the presence of any of the aggravating factors listed in s 21A of the Crimes (Sentencing Procedure) Act 1999. 14 The primary consideration of course in any sentencing is the objective gravity or seriousness of the offence. In this respect the maximum penalty for the offence prescribed by the legislature is $1.1 million. That, however, covers a great variety of offences under the Act of which the present offence is one. 15 The offence is not one which in this case would call for any element of specific deterrent. I am satisfied by the evidence of the defendant that he would not do anything like this again. It must borne in mind, however, that an offence against s 125(1) of the Act is one of strict liability. There is thus an onus on those who carry out development to ensure that any necessary development consent has been obtained before carrying out any work. 16 Accordingly, I do not regard the subject offence as trivial. There is a need for an element of general deterrence, which is a major consideration in the imposition of penalties for environmental offences. That is, the penalty imposed must deter not only the offender but also those engaged in similar activities from committing like offences. 17 The system of planning control will become somewhat ineffective if persons carry out development without ensuring that the necessary development consents have first been obtained. As I have said, the risk of the defendant re-offending is low. The need, however, is one for a general deterrent and an application of the principle of even-handedness. 18 I have regard in setting the penalty to a number of factors. Firstly, there is no apparent environmental harm, evidenced by the fact that the council has now granted development consent for the use of the upper floor space of the premises for offices. 19 I have regard to the subjective factors of Mr Touma, in particular his early plea, his expressed statement of remorse and contrition, the fact that he did in fact lodge a development application which has now been granted, his full co-operation with the prosecutor, and the absence of prior convictions. 20 In my opinion the penalty is at the lower end of the range, and the sum which would be appropriate will be discounted by a full discount of thirty five per cent to reflect both the early plea of guilty and the other mitigating factors to which I have referred. That is to say, I am of the opinion that an appropriate penalty in this case is $23,000 which I reduce by thirty five per cent, to $15,000. 21 The formal orders of the court therefore are:

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

(2) The defendant must pay a penalty in the sum of $15,000.

(3) The defendant must pay the prosecutor's costs in the agreed sum of $35,000.

(4) The exhibits, other than Exhibit A (the Statement of Agreed Facts), will be returned. I hereby certify that the preceding 21 paragraphs are a true copy of the reasons for judgment herein of the Honourable Mr Justice D H Lloyd.

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