Ku-Ring-Gai Council v Vinci

Axer Pty Ltd v Environment Protection Authority (1993) 113 LGERA 357; Camilleri's Stock Feeds Pty Ltd v Environment Protection; Authority (1993) 32 NSWLR 683; CASES CITED: Cabonne Shire Council v Environment Protection Authority (2001) 115 LGERA 304; Carlino v Leichhardt Municipal Council (2005) 144 LGERA 235; Keir v Sutherland Shire Council [2004] NSWLEC 754; R v Thomson; R v Houlton (2000) 49 NSWLR 383; R v Sharma (2002) 54 NSWLR 300

PROSECUTOR Mr T Howard SOLICITORS LEGAL REPRESENTATIVES: Home Wilkinson Lowry DEFENDANT Mr P Clay SOLICITOR Ross Selvaggio & Associates

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

EX TEMPORE JUDGMENT 1 Her Honour: The Defendant is charged with an offence against s 125(1) of the Environmental Planning and Assessment Act 1979 (the EP&A Act) in that he carried out development on land comprising Lot B DP 337312, known as 33 Burns Road, Wahroonga (the land), otherwise than in accordance with the conditions of a development consent in breach of s 76A(1)(b) of the Environmental Planning Assessment Act 1979 ("the EP&A Act").

2 The maximum penalty applicable is $1.1 million. The Defendant has pleaded guilty and the Prosecutor can therefore be considered to have proved the essential elements of the offence. It is now necessary to sentence the Defendant. Facts 3 The parties have agreed a Statement of Agreed Facts as follows:

1. Mr Vinci was at all material times the sole shareholder and director of Vincorp Projects Pty limited ("Vincorp").
2. Vincorp was engaged to carry out certain demolition and building works at land being Lot B DP 337312 known as 33 Burns Road, Wahroonga ("the site").
3. The work constituted development being alterations and additions to a dwelling house plus pool and fence ("the development"). Such development was permissible only with development consent of Ku-Ring-Gai Council ("the Council").
4. Development consent had been granted for the development (excluding the fence) and at the time of the offence comprised: (a) development consent number DA 1023/01 dated 29 August, 2002 as modified by the following modifications; (b) DA 1023/01A dated 16 July, 2003; (c) DA 1023/01B dated 14 July 2005; (d) DA 1023.01C dated 5 October, 2005 and forming part of the development consent (e) Construction Certificate No 270/05 issued by Dix Gardener Pty Limited dated 29 July, 2005.
5. Mr Vinci directed Vincorp to carry out the development and Vincorp was so doing between 21 January, 2006 and 10 February, 2006 at the site.
6. During the course of carrying out that work Vincorp, at the direction of Mr Vinci, caused to be demolished part of the dwelling in breach of condition 1 of the development consent.
7. Condition 11 of the development required that the tiles on the roof apparent at the front elevation be stored, salvaged and reused and that the proposed method of reconstructing the roof form prior to commencement of the work should be submitted for the approval of the Council or the PCA. Mr Vinci did not salvage the tiles to enable their reuse in breach of condition 11 and did not submit to the Council or the PCA the proposed method of reconstructing the form prior to commencement of the work.
8. The Council first made contact with Mr Vinci on 13 February, 2006 and the Council representative met with Mr Vinci on 14 February, 2006 Mr Vinci: (a) cooperated by promptly telephoning the Council representative upon receipt of a message to ring him; (b) made arrangements for the Council Officer to meet with Mr Vinci on site as soon as practicable thereafter; (c) cooperated fully with the Council on interview on site on 14 February, 2006, making admissions in relation to the work carried out; (d) carried out no further work once so requested by the Council

10. Neither Mr Vinci nor Vincorp have been convicted of any environmental offences or had any environmental offences proved against either of them. 4 My understanding is that work on the project has stopped awaiting the outcome of a s 96 modification application. 5 Photographs of the building before demolition were tendered, and the amended development consent condition 11 and relevant plans showing the work detailed in the particulars of the summons were tendered. Prosecutor's submissions 6 The offence is reasonably serious as it concerns the demolition of parts of a heritage item in breach of development consent conditions designed to preserve parts of an existing heritage structure. As a result of the Defendant's actions these have been demolished. The balance struck under the EP&A Act between preserving heritage and allowing appropriate development has been lost in this case.

7 The Defendant's actions were reckless in the circumstances described in the Statement of Agreed Facts. It would have been easy for the Defendant to comply with the development consent conditions particularly those concerning the salvage and reuse of the roof tiles. Defendant's evidence and submissions 8 In his affidavit dated 11 May 2007 the Defendant stated: At the time of the commission of the offences I did not believe that there was any problem caused by the demolition or not saving the tiles. That is, I believed that it made no difference to the heritage importance of the dwelling or any real difference to the work to be carried out. I always intended to rebuild the particular walls with the same blocks and bricks and I always intended to replace the tiles with identical tiles. I believed it was the case that the tiles were not the original tiles for the house. Whilst I did not think about it at the time I realise now I should not have carried out that work until there was an application to modify the consent which was granted by the Council. I have not gained any financial advantage from the commission of the offences. I had not quoted a fixed price for this job and I would have needed to do additional work to retain the tiles as it would have taken more time to do so, for which I would have been paid. 9 Later in his affidavit the Defendant sets out his work history in the building industry including as a project manager at Capital Constructions. In late 2005/early 2006 the Defendant established his own company, Vincorp Projects Pty Ltd. This offence arose in the course of carrying out the first job undertaken by that company.

10 The affidavit of Mr Brookes, architect and heritage consultant, dated 11 May 2007 was relied on. He prepared the heritage report used to support the original DA which was granted consent subject to conditions, the breach of which gave rise to this offence. He also prepared a submission to support the s 96 modification application made after the demolition work of the building. He states that in accordance with accepted practices regarding the reconstruction of heritage elements, the proposed reconstruction works to the original 1908 house are acceptable. In his affidavit he concludes that it is his opinion that the work carried out unlawfully can be rectified by the proposed reconstruction in a manner which has an acceptable degree of impact on the heritage significance of the property. 11 The Defendant's counsel submitted that the Defendant had been negligent and mistaken in that he considered the outcome for the building would be the same as a result of his actions. While carried out in the course of commercial activity there was no potential for commercial advantage to the Defendant as a result of his actions. His actions did not involve wanton destruction of a heritage item.

12 According to the Defendant there is minor environmental harm only, given Mr Brookes' evidence on the maintenance of heritage values if appropriate reconstruction is undertaken. 13 Three character references were also tendered by the Defendant. Finding 14 Section 3A of the Crimes (Sentencing Procedure) Act 1999 sets out the purposes of sentencing as follows: The purposes for which a court may impose a sentence on an offender 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, (c) to protect the community from the offender, (d) to promote the rehabilitation of the offender, (e) to make the offender accountable for his or her actions, (f) to denounce the conduct of the offender, (g) to recognise the harm done to the victim of the crime and the community. Objective circumstances A. Maximum penalty 15 The Court should have regard to the maximum penalty applicable, as this is an expression of the seriousness Parliament attributes to the offence: see Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 at 698. The maximum penalty in this matter of $1.1 million is substantial. B. Culpability 16 Regard must be had to the culpability of the Defendant and the individual circumstances which led to the commission of the offence. The sentence must be proportional to the gravity of the crime. I consider that the Defendant acted mistakenly rather than recklessly and that the objective gravity of the offence is low. Harm to the environment 17 The Defendant relied on the evidence of Mr Brookes, heritage consultant, as identified above which I accept. I consider there is minor environmental harm in these particular circumstances. General deterrence 18 Sentences made in relation to environmental offences must embrace powerful considerations of general deterrence; see Axer Pty Ltd v Environment Protection Authority (1993) 113 LGERA 357, per Mahoney J at 359: The quantum of the fines which the legislation allows to be imposed has no doubt been fixed not merely to indicate the seriousness with which such pollution is regarded but also to deter those engaged in such activities and to procure that they will take the precautions necessary to ensure that it does not occur.

19 I consider this is particularly important in this case given that the Defendant is a licensed builder undertaking development in the course of his business, albeit that this is the first job undertaken by his own company. I adopt the statements of the need for general deterrence for offences by licensed builders who failed to comply with development consent conditions in Keir v Sutherland Shire Council [2004] NSWLEC 754 per McClellan J at [13] and Carlino v Leichhardt Municipal Council (2005) 144 LGERA 235 per Lloyd J at [28], [33] and [38] (referring to Keir).

20 Specific deterrence is not pressed by the Prosecutor and I do not consider it arises in this case. I consider the Defendant is unlikely to reoffend given he is the sole director of a small building company and this offence has occurred on the first job. Evenhandedness 21 The principle of evenhandedness requires that the Court consider if there is any sentencing pattern for like offences to determine a consistent approach to penalty. The need to take into account the individual circumstances of the case was also emphasised in Cabonne Shire Council v Environment Protection Authority (2001) 115 LGERA 304 at 312 Giles JA, with whom Hulme and Adams JJ agreed said: Indiscriminate reference to other cases is of no utility and should be discouraged. Even discriminating reference is likely to be of no utility because the facts in cases such as the present will almost always be peculiar to the individual case.

22 The Prosecutor referred to Carlino, an appeal against the severity of a penalty imposed by the Local Court in which Lloyd J upheld the Local Court fine of $30,250. That case concerned an offence of failing to comply with development consent conditions aimed at the protection of heritage items to which the defendants pleaded guilty. Arguably the circumstances were more serious in that case as the heritage item destroyed was prominent in the streetscape and was located in a heritage precinct.

23 Keir was also an appeal from a Local Court sentence imposed in relation to carrying out development not in accordance with a development consent under the EP&A Act. That case did not concern heritage matters but concerned development conditions designed to preserve the amenity of neighbours. The fines imposed by McClellan J totalled $35,000 for two defendants, $25,000 for the director and $10,000 for the company. This was less than the $50,000 imposed by the magistrate. Penalty 24 In my opinion, the circumstances of the offence the subject of these proceedings warrant that a penalty of $20,000 should be imposed. Mitigating factors 25 There are a number of mitigating factors that should be taken into account to reduce that penalty.

Guilty plea (s 22, s 21A(3)(k) Crimes (Sentencing Procedure) Act 1999) 26 The Defendant pleaded guilty at the earliest opportunity. A plea of guilty entitles the Defendant to a discount in penalty under s 22 of the Crimes (Sentencing Procedure) Act in the range of 10-25 per cent: R v Thomson; R v Houlton (2000) 49 NSWLR 383; R v Sharma (2002) 54 NSWLR 300. I consider there was a high likelihood of conviction for the offence.

27 The Defendant has expressed contrition and remorse in his affidavit and through his plea of guilty, and has fully cooperated with the Prosecutor as set out in the Statement of Agreed Facts and as is clear from these proceedings (s 21A(3) (i) (m) Crimes (Sentencing Procedure) Act).

28 The Defendant has no prior record of convictions nor does his company. (s 21A(3)(g) Crimes (Sentencing Procedure) Act ).

29 The Defendant has provided three character references, two recent which are made in the knowledge that the reference will be used in these proceedings. I take into particular account the reference of his previous employer at Capital Corporation and accept he is a person of good character (s 21A(3)(f) Crimes (Sentencing Procedure) Act).

30 The Defendant accepts that he must pay the Prosecutor's costs which are estimated to be approximately $19,000 which I take into account. I consider I should reduce the penalty by 30 per cent to $14,000. Orders 31 The Court orders that:

1. The Defendant is convicted of the offence with which he is charged.
2. The Defendant is fined the sum of $14,000 to be paid to the Registrar of the Court within 28 days of today's date.
3. The Defendant must pay the Prosecutor's costs of the proceedings against him as agreed or assessed.
4. The exhibits may be returned.

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