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[2025] NSWLEC 39
General information, not legal advice.
Land and Environment Court (NSW)
2025-04-30
Preston CJ
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Medium Neutral Citation: Kingfisher Properties Pty Limited v Northern Beaches Council [2025] NSWLEC 39
Hearing dates: 18 March 2025
Date of orders: 30 April 2025
Decision date: 30 April 2025
Jurisdiction: Class 6
Before: Preston CJ
Decision: The Court makes the following orders:
(1) Set aside the fine of $100,000 imposed by the Local Court on 16 August 2024.
(2) Instead, fine Kingfisher Properties Pty Limited $9,000 for the offence charged.
(3) Set aside the order of the Local Court of 16 August 2024 for a moiety of two-thirds of the fine imposed by the Local Court to Northern Beaches Council.
(4) Instead, direct that one-half of the fine imposed by Order 2 be paid to Northern Beaches Council.
(5) Make no order as to costs of the appeal to this Court, with the intention that each party pay their own costs.
Catchwords: OFFENCES AND PENALTIES – sentence by Local Court – appeal against sentence – offence of failing to comply with development control order – development control order largely outside power – non-compliance with potentially invalid order of low objective seriousness – no environmental harm, foreseeability of harm or practical measures to prevent harm – offence deliberate but not for financial gain – mitigating factors
Legislation Cited: Crimes (Appeal and Review) Act 2001 (NSW), ss 31, 39
Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A, 22
Environmental Planning and Assessment Act 1979 (NSW), ss 1.6, 8.18, 9.34, 9.37, 9.52, 9.53, Part 1 Sch 5
Fines Act 1996 (NSW), ss 121, 122
Land and Environment Court Act 1979 (NSW), s 34
Cases Cited: Kingfisher Properties Pty Ltd v Northern Beaches Council [2022] NSWLEC 1088
Texts Cited: State Environmental Planning Policy (Exempt and Complying Development Codes) 2008, cl 1.15, Part 2 Subdivision 10
Category: Sentence
Parties: Kingfisher Properties Pty Limited (Appellant)
Northern Beaches Council (Respondent)
Representation: Counsel:
C Koikas (Appellant)
R Coffey (Respondent)
Solicitors:
Newhouse & Arnold Solicitors (Appellant)
Storey & Gough Lawyers (Respondent)
File Number(s): 2024/336641
Publication restriction: NIL
Kingfisher Properties Pty Limited (Kingfisher) appeals against the severity of the sentence imposed by the Local Court for an offence of failing to comply with the terms of a development control order pursuant to s 9.37(1) of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act). The Local Court fined Kingfisher $100,000, ordered Kingfisher to pay the costs of the prosecutor, Northern Beaches Council (the Council), in the amount of $3,379 and ordered a two thirds moiety of the fine to the Council.
Kingfisher appealed as of right under s 31(1) of the Crimes (Appeal and Review) Act 2001 (NSW) (CAR Act). The appeal against sentence is by way of rehearing. The Court may determine the appeal by setting aside or varying the sentence or dismissing the appeal: s 39(2) of the CAR Act.
In assessing the appropriate sentence that should be imposed for Kingfisher’s commission of the offence, it is relevant to explain the circumstances that led to the commission of the offence. As I will explain, Kingfisher committed the offence by failing to comply with terms of a development control order that were outside the power under the EPA Act to be imposed on a development control order. This fact affects the objective seriousness of the offence.
In about August 2020, Kingfisher constructed a carport at a residential property at 163 Pacific Road, Palm Beach. The carport was of size and in a location that required development consent under the EPA Act. Kingfisher did not obtain development consent before it erected the carport.
On 25 January 2021, the Council issued a development control order under s 9.34(1)(a) and the table to Part 1 of Schedule 5 of the EPA Act. The general order the Council issued was a Compliance Order under item 11 of the table to Part 1 of Schedule 5. The table specifies in Column 2 the circumstances in which a Compliance Order can be issued: where a planning approval has not been complied with; where a building has been unlawfully erected and does not comply with relevant development standards; and where authorised subdivision works, or works agreed to by the applicant, have not been carried out. The table specifies in Column 3 the persons to whom a Compliance Order may be issued, corresponding with these three circumstances: the owner of the premises or any person entitled to act on a planning approval, or acting in contravention of a planning approval; the owner of the premises; and the person required to carry out the works.
The table specifies in Column 1 what the Compliance Order can require such a person to do:
“● To comply with a planning approval for the carrying out of works
● To do whatever is necessary so that any building or part of a building that has been unlawfully erected complies with relevant development standards
● To carry out works associated with subdivision.”
The Compliance Order the Council issued was directed to Kingfisher as the owner of the premises on which the carport was erected. However, none of the circumstances necessary to found the power to issue a Compliance Order existed.
First, no planning approval had been issued so that Kingfisher could not have failed to comply with any planning approval in erecting the carport.
Second, although the carport was erected unlawfully, in that development consent was not obtained, the carport did not fail to comply with any relevant development standards for the erection of a carport. The carport did not meet a number of the development standards for carports in Subdivision 10–Carports of Part 2 of the State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 (Exempt and Complying Development SEPP), but this simply meant that the carport was not exempt development. The carrying out of exempt development does not require development consent: s 1.6(1)(a) of the EPA Act. To be exempt development, the development must be specified in an exempt development code, meet the standards specified for the development, and comply with the requirements of Division 2 of Part 1 of the Exempt and Complying Development SEPP: cl 1.15(1) of the Exempt and Complying Development SEPP. Carports are specified in the exempt development code for carports in Subdivision 10 of Part 2 of the Exempt and Complying Development Code. The carport erected by Kingfisher did not comply with all of the development standards specified for carports in s 2.20(1) of the Exempt and Complying Development SEPP. Hence, it was not exempt development and development consent was required. In this circumstance, the development standards specified in s 2.20 of the Exempt and Complying Development Code did not regulate the carport erected by Kingfisher. Those development standards would only regulate the carrying out of the carport if it was exempt development.
The third circumstance in Column 2 of the table concerning subdivision was not applicable.
As none of the circumstances in Column 2 of the table for the issuing of a Compliance Order existed, the Council had no power to issue the Compliance Order to Kingfisher.
The terms of the Compliance Order the Council issued were also outside power. The Compliance Order required Kingfisher to do whatever is necessary so that any building or part of a building that has been unlawfully erected complies with the relevant development standards in Subdivision 10 of Part 2 of the Exempt and Complying Development SEPP. As I have explained, however, those development standards do not apply to development that is not exempt development. The carport erected by Kingfisher was not required to comply with those development standards.
Notwithstanding the potential invalidity of the Compliance Order, Kingfisher did not challenge its validity in judicial review proceedings in Class 4 of this Court’s jurisdiction. Instead, Kingfisher appealed on 19 February 2021 against the Compliance Order under s 8.18(1) of the EPA Act in Class 1 of the Court’s jurisdiction.
On 11 February 2022, at a conciliation conference arranged under s 34(1) of the Land and Environment Court Act 1979 (NSW) (Court Act), Kingfisher and the Council agreed upon the terms of a decision that would be acceptable to the parties. This involved the Court upholding the appeal and substituting a different development control order under item 3 of the table to Part 1 of Schedule 5 of the EPA Act, which is a Demolish Works Order, for the Compliance Order under item 11 of the table that the Council had issued. Under s 8.18(4)(c) of the EPA Act, the Court had power to “substitute for the development control order any other order that the relevant enforcement authority who gave the order could have given”. The exercise of this power directed attention to whether the Council could have given Kingfisher a Demolish Works Order under item 3 of the table.
The table specifies in Column 2 that a Demolish Works Order may be issued if a building:
“• requiring a planning approval is erected without approval, or
• requiring approval under the Local Government Act 1993 is erected without approval, or
• is or is likely to become a danger to the public, or
• is so dilapidated that it is prejudicial to persons or property in the neighbourhood, or
• is erected in contravention of this Act.”
“Owner of building or, if the building is situated wholly or partly in a public place, the person who erected the building.”
The table specifies in Column 1 what a Demolish Works Order can require such a person to do, being “to demolish or remove a building”.
Kingfisher is the owner of the property on which the carport was erected and the carport was erected without development consent, thereby satisfying the matters in Columns 2 and 3 of the table for the issue of a Demolish Works Order. The work the Demolish Works Order required to be undertaken, however, went beyond what a Demolish Works Order can require. In Column 1 of the table, the only work that a Demolish Works Order can require is “to demolish or remove a building”. Order 1 of the Demolish Works Order that the parties had agreed was to:
“1. Remove the roof of the ‘carport’ located adjacent to the south-west boundary of the property known as 163 Pacific Road, Palm Beach. The ‘carport’ is identified in the aerial photograph at Attachment A.”
“2. Construct a replacement roof on the carport, being of a hipped style with a ridge of no greater than RL 69.64 and eaves no greater than RL 68.46. The carport structure must be constructed in accordance with the plan at Attachment B. The roof is to be a recessive colour and is to be a non-reflective material. The roof is to contain guttering that will dispose of stormwater into the existing drainage system.”
“3. Submit to Northern Beaches Council a works as executed survey plan prepared by a registered surveyor following completion of actions 1 and 2 above. The survey plan must depict the location of the carport structure and the height of the carport’s ridge and eaves.”
“The demolition work (item 1) and the building work (item 2) are to be carried out in compliance with the conditions at Attachment C to this Order.”
Attachment C to the Demolish Works Order specified conditions regulating the demolition and building work required by Orders 1 and 2. Two conditions were of relevance to the offence committed by Kingfisher. Condition 3 required Kingfisher to pay a “security bond” to the Council “to ensure the rectification of any damage that may occur to the Council infrastructure contained within the road reserve adjoining the site as a result of construction or the transportation of materials and equipment to and from the development site”. Condition 8 required “the stormwater drainage works shall be certified as compliant with all relevant Australian Standards and Codes by a suitably qualified person. Details demonstrating compliance are to be submitted to Council at the completion of the building work.”
The building work specified in Order 2, and the actions required by Order 3 and conditions 3 and 8 in Attachment C to the Demolish Works Order, insofar as they regulate that building work, were matters that could not be required to be carried out under item 3 of the table to Part 1 of Schedule 5 of the EPA Act. They do not fall within the description of work specified in Column 1 “to demolish or remove a building”. This power authorised Order 1 of the Demolish Works Order requiring removal of the roof of the unlawfully erected carport, and any conditions regulating the removal of the roof, but not Orders 2 and 3 and conditions 3 and 8 requiring and regulating the carrying out of building work.
Nevertheless, at the conciliation conference, the parties agreed on a Demolish Works Order in terms that were outside power. They sought for the Commissioner presiding over the conciliation conference to make the Demolish Works Order in the terms they had agreed. Under s 34(3)(a) of the Court Act, the Commissioner was required to dispose of the appeal in accordance with the terms of the decision that was acceptable to the parties provided that was a decision the Court could have made in the proper exercise of its functions. As I have explained, the Demolish Works Order in the terms agreed by the parties was not an order that the Council could have given under item 3 of the table to Part 1 of Schedule 5 of the EPA Act and hence the decision to substitute that order was not a decision the Court could have made in the proper exercise of its functions (the requirement in s 34(3) of the Court Act). Nevertheless, on 21 February 2022, the Commissioner, accepting the parties’ submissions, decided it was such a decision and made the Demolish Works Order in the terms agreed: Kingfisher Properties Pty Ltd v Northern Beaches Council [2022] NSWLEC 1088.
The Demolish Works Order specified the time period for compliance with the order, being 120 days for actions 1 and 2 to demolish the carport roof and reconstruct the carport roof and 135 days for action 3 to submit the survey.
Kingfisher removed the roof of the carport within the 120 days’ time required, thereby complying with Order 1 of the Demolish Works Order. Kingfisher also constructed a replacement roof within the 120 days’ time required, but the building work did not comply with Order 2 of the Demolish Works Order in two respects: first, Kingfisher did not install guttering on the replacement roof and, second, the eaves of the replacement roof were higher (RL 68.88) than the height required by Order 2 (RL 68.46). Kingfisher provided a works as executed survey plan, in purported compliance with Order 3 of the Demolish Works Order, but that survey plan revealed that the eaves of the replacement roof were higher than what was required by Order 2. Kingfisher also did not comply with two conditions of Attachment C to the Demolish Works Order by not lodging a security bond as required by condition 3 and by not arranging for certification of the stormwater drainage works as required by condition 8.
On 21 April 2023, the Council issued a penalty notice to Kingfisher in the amount of $6,000 for the offence of failing to comply with the terms of the Demolish Works Order. The penalty infringement notice identified four breaches of the Demolish Works Order:
“a. The security bond required under condition 3 of the Order was not paid to the Council,
b. The guttering had not been installed on the carport structure,
c. Adequate stormwater drainage certification has not been provided to council as required by condition 8, and
d. An adequate works as executed survey plan, that identifies the location of the carport, and the height of the carport’s ridge and eaves has not been provided to Council.”
These identified breaches are of Order 2 (paragraph (b)) and Order 3 (paragraph (d)) of the Demolish Works Order and condition 3 (paragraph (a)) and condition 8 (paragraph (c)) of Attachment C to the Demolish Works Order.
Kingfisher elected to have the penalty infringement notice determined by the Local Court. On 1 August 2024, the proceedings were heard by the Local Court. Kingfisher was represented by its director, Mr Fisher, who is not legally qualified. During the hearing, Kingfisher entered a plea of guilty to the offence of failing to comply with the four terms of the Demolish Works Order identified in the penalty infringement notice.
On 16 August 2024, the Local Court convicted Kingfisher for the offence, fined it $100,000, ordered it to pay the Council’s costs in the sum of $3,379, and ordered a two thirds moiety of the fine to the Council.
On 11 September 2024, Kingfisher appealed to this Court against the severity of the sentence. It did not appeal against its conviction for the offence as it had pleaded guilty to the offence in the Local Court. This Court must deal with the appeal against sentence on the basis that Kingfisher has committed the offence of failing to comply with the identified terms of the Demolish Works Order, notwithstanding that that order is in large parts outside power. Of importance is the fact that of the four respects in which Kingfisher was charged with failing to comply with the order, at least three are outside power. The Demolish Works Order could not require the construction of a replacement roof with guttering (Order 2), the submission of a works as executed survey plan for the building work required to be constructed (Order 3), or the certification of any stormwater drainage works required to be constructed (Condition 8). There might be power for a Demolish Works Order to require a security bond, but only for the demolition of the unlawfully erected carport and not for the construction of new building work (as was required by Condition 3). If the Demolish Works Order had been issued within power, at least these three requirements would not have been imposed and Kingfisher could not have committed the offence of failing to comply with these terms of the Demolish Works Order.
Because of Kingfisher’s guilty plea, however, this Court must sentence Kingfisher for having committed an offence by failing to comply with these requirements of the Demolish Works Order. Nevertheless, the fact that these requirements were outside power is relevant to this Court’s assessment of the objective seriousness of the offence. It is less objectively serious to fail to comply with requirements of a development control order that are outside power than it is to fail to comply with requirements of a development control order that are within power.
The nature and purpose of the statutory provision that has been contravened, and its place in the statutory scheme, is relevant to the assessment of the objective seriousness of an offence against that provision. Here, the offence is a failure to comply with the terms of a development control order issued under s 9.34(1) of the EPA Act, which is made an offence by s 9.37(1) of the EPA Act. Development control orders are a means by which compliance with the EPA Act can be enforced. A development control order issued under item 3 of the table to Part 1 of Schedule 5 of the EPA Act, to demolish or remove a building (a Demolish Works Order), enforces compliance with the provisions of the EPA Act requiring prior approval before erecting a building.
In the present case, prior approval (in the form of a development consent) was required to erect the carport, but Kingfisher failed to obtain that approval. That circumstance founded the power under s 9.34(1)(a) and item 3 of the table to Part 1 of Schedule 5 of the EPA Act to issue a Demolish Works Order to demolish or remove part of the carport (the roof), but not to direct the construction of a replacement roof with gutters or the certification of stormwater drainage works.
To the extent that Kingfisher failed to comply with the terms of the Demolish Works Order to remove the roof of the carport (Order 1), Kingfisher’s conduct undermined the purpose of the statutory provision of s 9.34(1) of the EPA Act. To the extent that Kingfisher failed to comply with other terms of the Demolish Works Order to construct a replacement roof with guttering (Order 2), to submit a works as executed survey plan at the completion of that building work (Order 3) and to submit certification of the stormwater drainage works, which were outside power, Kingfisher’s conduct did not undermine the purpose of that statutory provision, as an order in those terms ought not to have been issued.
The offence of failing to comply with the terms of a development control order is a strict liability offence. The commission of a strict liability offence intentionally, recklessly or negligently will be objectively more serious than one that is not so committed.
In the present case, the prosecutor submitted that Kingfisher committed the offence intentionally. Mr Fisher, the director of Kingfisher, knew the terms of the Demolish Works Order. He had instructed Kingfisher’s lawyer at the conciliation conference to agree to the terms of the Demolish Works Order that the Court made under s 34(3)(a) of the Court Act. Mr Fisher gave evidence explaining his reasons for not complying with the identified terms of the Demolish Works Order. Mr Fisher chose not to install gutters on the replacement roof as he thought it was not necessary as guttering was not shown on the plan at Attachment B to the Demolish Works Order and the rainfall runoff from the roof already fell into the existing drainage system. Mr Fisher chose not to arrange for certification of the stormwater drainage works because the replacement roof without gutters did not change the existing drainage system. Mr Fisher chose not to pay a security bond as no works were being done on, or would affect, Council infrastructure contained within the road reserve adjoining the site. Mr Fisher did provide a works as executed survey plan, but that plan identified the higher eaves of the replacement roof. The prosecutor submitted that these reasons reveal that Kingfisher consciously chose not to comply with these terms of the Demolish Works Order. Kingfisher’s conduct in not complying with these terms of the Demolish Works Order was deliberate, making the commission of the offence intentional.
I find that Kingfisher did consciously choose not to comply with the identified terms of the Demolish Works Order. In this sense, Kingfisher’s conduct is intentional. The reasons given by Mr Fisher do not provide legal justification for Kingfisher’s non-compliance, but they do make it less objectively serious. The reasons provide a plausible explanation for Kingfisher’s non-compliance.
The extent of harm caused or likely to be caused to the environment by the commission of the offence affects the objective seriousness of the offence. Here, the prosecutor adduced no evidence establishing that Kingfisher’s non-compliance with the identified terms of the Demolish Works Order caused or was likely to cause any harm to the environment.
As to the breaches identified in paragraph (b) and (c) of the penalty infringement notice, the installation of gutters on the replacement roof of the carport was unnecessary. Rainfall runoff from the roof fell into the existing drainage system either side of the roof. The gutters that were later installed collected rainfall runoff into a downpipe for discharge into the same existing drainage system either side of the roof. The outcome was the same. Neither means of dealing with rainfall runoff from the roof was likely to cause harm to the environment by uncontrolled runoff or erosion. In these circumstances, certification of the stormwater drainage works served little purpose and any non-provision was not likely to cause harm to the environment.
As to the breach identified in paragraph (c) of the penalty infringement notice, the provision of an adequate works as executed survey plan served no purpose. A works as executed survey plan had been submitted but it identified that the eaves of the replacement roof were higher than the height required by Order 2 of the Demolish Works Order. The breach was not the failure to submit an “adequate” works as executed survey plan in accordance with Order 3 of the Demolished Works Order, but rather of Order 2 of the Demolished Works Order. Yet Kingfisher was not charged with failing to comply with Order 2 by constructing a replacement roof with higher eaves, only with failing to comply with Order 3 by not submitting an adequate works as executed survey plan. The non-provision of an adequate works as executed survey plan did not cause and could not cause any harm to the environment.
As to the breach identified in paragraph (a) of the penalty infringement notice, the paying of a security bond for any potential damage to Council infrastructure in the road reserve did serve the purpose of ensuring that the Council was compensated for any damage that may occur, but it did not prevent any damage occurring. As events happened, the demolition and building works did not cause any damage to Council infrastructure, so non-provision of the security bond had no consequence. In these circumstances, the non-payment of a security bond did not cause and was not likely to cause harm to the environment.
In addition to the guilty plea, remorse shown by an offender for the offence is a mitigating factor, but only if the offender establishes the two matters in s 21A(3)(i) of the Sentencing Act.
In the present case, Kingfisher, through its director Mr Fisher, has given evidence accepting responsibility for its actions. It has remedied non-compliance with three of the identified terms of the Demolish Works Order. In around November 2023, Kingfisher installed gutters on the replacement roof of the carport to dispose of rainfall runoff into the existing drainage system, thereby complying with Order 2. On or about 18 December 2023, Kingfisher provided certification of the stormwater drainage works as built, thereby complying with condition 8 of the conditions in Attachment C to the Order.
Kingfisher had already complied with Order 3 of the Demolish Works Order by submitting within the 135 days’ time required a works as executed survey plan, but that plan revealed that the eaves of the new roof were constructed to a height (RL 68.88) above the height specified in Order 2 (RL 68.46). Kingfisher rectified that defect by, first, applying on 13 August 2021 for and obtaining from the Council a building information certificate on 3 June 2024 allowing the carport as built to remain and, second, applying on 20 June 2024 for and obtaining on 11 November 2024 a development consent to use the carport as built. In these circumstances, there was no utility in submitting another works as executed survey plan afterwards.
Kingfisher did not pay the security bond required by condition 3 in Attachment C to the Demolish Works Order, but this non-compliance could no longer be remedied once the demolition and building works had been completed.
In these ways, Kingfisher has demonstrated remorse for committing the offence.
Synthesising the objective and subjective circumstances of the offence and the offender, I find a fine in an amount of $10,000 is appropriate. Applying the discount of 10% for the utilitarian value of the guilty plea, the fine becomes $9,000.
The Local Court ordered Kingfisher to pay the prosecutor’s costs in the amount of $3,379. Kingfisher did not seek to disturb this costs order. Kingfisher sought for each party to pay their own costs on the appeal to this Court. The prosecutor did not oppose that course.
The Local Court ordered a moiety of two-thirds of the fine to the Council. The Local Court did not identify the source of power it used to impose the moiety.
The prosecution was for an offence against s 9.37(1) of the EPA Act. That Act does not make any provision for the application of a fine imposed for an offence against the Act. In this circumstance, s 122 of the Fines Act 1996 (NSW) applies: s 122(1).
Section 122(2) of the Fines Act empowers the Court to direct that a portion of the fine imposed be paid to the prosecutor, but the portion cannot exceed one-half. Kingfisher did not oppose the order of a moiety in relation to any fine this Court might impose. I find it is appropriate to direct, under s 122(2) of the Fines Act, that one-half of the fine of $9,000 be paid to the prosecutor.
The Court makes the following orders:
Set aside the fine of $100,000 imposed by the Local Court on 16 August 2024.
Instead, fine Kingfisher Properties Pty Limited $9,000 for the offence charged.
Set aside the order of the Local Court of 16 August 2024 for a moiety of two-thirds of the fine imposed by the Local Court to Northern Beaches Council.
Instead, direct that one-half of the fine imposed by Order 2 be paid to Northern Beaches Council.
Make no order as to costs of the appeal to this Court, with the intention that each party pay their own costs.
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Kingfisher Properties Pty Limited
Northern Beaches Council [2025] NSWLEC 39