Liverpool City Council v Leppington Pastoral Co Pty Ltd

Environment Protection Authority v Barnes [2006] NSWCCA 246 Environment Protection Authority v Hardt [2007] NSWLEC 284 Environment Protection Authority v Wattke [2010] NSWLEC 24 Environment Protection Authority v Williams [2006] NSWLEC 722 CASES CITED: Holroyd City Council v Shi [2007] NSWLEC 797 Keir v Sutherland Shire Council [2004] NSWLEC 754 Lahood v Strathfield Municipal Council [2007] NSWLEC 714 Minister for Planning v Fancott Pty Ltd [2009] NSWLEC 170 Willoughby City Council v BCPD Pty Ltd [2010] NSWLEC 163

PROSECUTOR: Mr T Howard, barrister SOLICITORS DLA Phillips Fox LEGAL REPRESENTATIVES:

DEFENDANT: Mr N Hemmings QC SOLICITORS Allens Arthur Robinson

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

LIVERPOOL CITY COUNCIL v LEPPINGTON PASTORAL CO PTY LTD

JUDGMENT INTRODUCTION 1 HIS HONOUR: These are two sentencing matters. The defendant, Leppington Pastoral Co Pty Ltd, has pleaded guilty to two charges of committing an offence against s 125(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) by carrying out developments which required development consent, in the absence of such consent, contrary to s 76A(1)(a). 2 One offence involved the demolition on or about 10 May 2008 of the former Commonwealth Government Overseas Telecommunications Radio Receiving Station, also known as the Bringelly Radio Receiving Station (radio receiving station). This was a 1-2 storey brick utility building constructed in about 1951 as part of a larger complex which was decommissioned in 1995 when radio receiving operations ceased. 3 The other offence involved the demolition without development consent on or about 30 March 2009 of a bolted cast iron water tank and tower (water tank) which had supplied water to the radio receiving station.

4 The radio receiving station and the water tank were each identified as a heritage item under the Liverpool Local Environmental Plan 1997 (LLEP 1997) and under the Liverpool Local Environmental Plan 2008 (LLEP 2008), which replaced LLEP 1997 on 28 August 2008. Under LLEP 2008 they were located within the SP2 - Infrastructure Zone. Under both LLEPs, demolition of a heritage item could only be carried out with development consent, which the defendant had neither applied for nor obtained. 5 There is no factual controversy.

6 The land on which the structures were located is rural land with an area of about 220 hectares known as 225 to 245 Badgerys Creek Road, Bringelly (the Land). It is about 20 kilometres from the Liverpool CBD. Citiwest Development Pty Ltd purchased the Land from Telstra Corporation in 2003. The defendant owns 25 per cent of the shares in Citiwest. The certificate under s 149 of the EPA Act attached to the sale contract said that an item of environmental heritage was situated on the Land.

7 Since 2003 the defendant, which is a major dairy producer, has used the Land for the purpose of grazing cattle under a licence agreement with Citiwest.

8 At the time of and after the 2003 sale, the only structures on the Land were the radio receiving station and the water tank. The radio receiving station was in a vandalised, derelict and dangerous condition and the water tank had rusted through in parts. The roof of the radio receiving station was contaminated with asbestos and Citiwest agreed with the vendor to implement a remediation action plan for the Land. Prior to the demolition the subject of the charges, the defendant caused the roof to be removed because of the asbestos, without development consent. The removal of the roof had the consequence of making the remainder of the building more unstable and dangerous. 9 Demolition of both structures was carried out under the instruction and authority of the defendant, through its director and secretary Anthony Mark Perich. His brother Ronald Perich was also a director and secretary of the defendant.

AGREED FACTS 10 The facts at [11] - [20] below are agreed. The radio receiving station and the water tower 11 In about June 1995, a plan was prepared by Godden Mackay Pty Limited entitled "Bringelly Radio Receiving Station complex, Telstra Corporation, Mobile Satellite and Radio Services, Badgery's Creek Road, Bringelly, NSW, Conservation Plan" (the Godden Mackay Conservation Plan) in relation to the buildings on the Land. 12 According to the Godden Mackay Conservation Plan the following events occurred: (a) in about 1946, the Overseas Telecommunications Commission (OTC) was brought into existence by the Commonwealth of Australia under the (since repealed) Overseas Telecommunications Act 1946 (Cth); (b) in about 1950-51, the OTC constructed the radio receiving station, a brick utility building, mainly single storey, with a small second storey level and a 3-storey tower adjacent to its entry. This was the only radio receiving facility of its kind built in New South Wales; (c) in around 1955, other associated infrastructure was also built on the Land, including on-site staff housing comprising 15 staff cottages and one single men's quarters and associated leisure facilities including a pool, cricket ground and tennis court and also including an elevated, bolted cast-iron water tank, which formerly supplied water to the site and OTC staff; (d) the telecommunications technology originally installed at the radio receiving station in the early 1950's was replaced around 1969 when the facility was converted to an unmanned operation; (e) by 1995: (i) one house had been demolished, leaving 15 buildings. Approximately half the houses were leased to Telecom employees and the remainder were empty; (ii) the second generation technology installed around 1969 had itself been rendered redundant by new satellite technology. The function carried out by the radio receiving station would in future be carried out by a new facility in Brisbane; (iii) the buildings were recognised as heritage items in the local area. As a result, Council required a conservation plan prior to considering any change of use of the site "to fully consider the heritage significance of the item and the impact of the proposed development on the items". 13 According to the Godden Mackay Conservation Plan: "(i) back in 1995, discussions with the Liverpool Council Heritage Planner had established that prior to any redevelopment of the site a heritage assessment or conservation plan would be required, and that a conservation plan would be preferred; (ii) also in 1995, Godden Mackay understood that Telecom had concerns with regard to the structural soundness of many of the buildings and for safety on the site and wanted to demolish the existing complex." 14 The Godden Mackay Conservation Plan included the following recommendations (among others): "(i) it is desirable but not essential that the Radio Receiving Station is retained, conserved and re-used; (ii) the water tower should be retained in operating condition subject to structural adequacy and adequate safety provisions."

15 The Godden Mackay Conservation Plan also included the following observations:

(a) at p 56: " 5.3.3. Social The value of the complex to the community is low. The installation has always been closed to the public and even the housing development is not highly visible from the adjacent road. The suburb has only ever been inhabited by a small group of OTC employees and more recently by tenants. It is very doubtful that the local community would have any appreciation of the complex except as a rural space amongst encroaching five acre or large block developments."

(b) at p 65: "6.3.1 Radio Station Building

The roof is corrugated asbestos cement as are the eaves. This roofing material constitutes a health and safety hazard if disturbed. If any repairs are required for the roof Occupational Health and Safety Provisions need to be applied. Prior to any new use for the building it is desirable that the roofing material be replaced. failure of mortar in the four lowest courses, around the building needs to be rectified where this has not already taken place; hair line cracking in the station building is not considered to be a major structural defect but requires regular cosmetic repairs."

(c) at p 66: "SAFETY … The current radio masts by and large represent an unacceptable safety hazard and would need to be removed if the station was no longer locked to the public. The water tower is also a safety issue. If it was to be retained, measures to prevent access would have to be taken and it would need to be assessed for structural adequacy. The houses also present a safety hazard. As the asbestos concrete sheet ages, it becomes brittle and is more likely to be broken during repairs or vandalism."

(d) at p 73: " 6.6.5 The Radio Station Complex …

The significance of the building, without any technology from the early period and re-cycled in a completely unrelated use, is not sufficient to warrant retention of the building if this would compromise a high quality development on the site."

This tower is of local significance only, but is a rare industrial element in the area and has some landmark value. Subject to an engineer's structural assessment and adequate safety precautions the tower should be retained. However, should it not be possible to retain it in working condition or make it safe then the level of significance does not warrant extraordinary measures to retain and conserve it."

The assessment of significance above establishes that the primary significance of the site is related to the association with an important technological development and the ability of the site to demonstrate the spatial requirements of the 1950s telecommunications technology. The Radio Station building although a representative example of a 1950s, utility, building is no more than locally significant in itself. The cessation of radio receiving operations, which are its reason for being, seriously compromises the significance of the Radio Station building." Liverpool State Heritage Inventory 16 On 3 February 1995 the Liverpool Heritage Local Environment Plan No 252 (LEP 252) was gazetted. On folios 654 and 655 of the Government Gazette the radio receiving station and the water tower are listed within Schedule 9.

17 At some time in about the mid to late 1990's before the defendant had any involvement in the Land, the former staff housing buildings, which comprised part of the "OTC Site Group", were demolished by unknown persons.

18 The radio receiving station and the water tower were each identified as a heritage item under the LLEP 1997 (Schedule 2) and they remained listed as heritage items under that planning instrument until it was repealed and replaced by the LLEP 2008.

19 The radio receiving station and the water tower were each identified as a heritage item under the LLEP 2008 (Schedule 5). Inspection of the Land 20 On or about 23 June 2009, Officer Robert John Stone of Liverpool City Council carried out an inspection of the Land and saw the demolished remains of the radio receiving station and the water tower. In particular, he saw the following things:

(a) the heritage items erected on the Land had been demolished; (b) there were two separate piles of building debris: one large the other small; (c) the large pile was in the middle of the Land which was about 1 km from the street frontage; (d) the smaller pile was on the southern side of the land which was about 500m from the street frontage; (e) in the large pile there were large pieces of broken concrete and bricks, broken timber and wire, guttering and roofing material; (g) in the smaller pile there were pipes, broken bricks, timber and pieces of steel framing; (h) eleven photographs taken by Officer Stone of what he saw on 23 June 2009 are in evidence.

INTERVIEW WITH ANTHONY PERICH 21 When interviewed by council officers on 8 October 2009, Anthony Perich said or agreed with the following, which I accept:

(a) the defendant was affiliated with the owner of the Land, Citiwest, in land development. The Land was bought as a farm but later it would be used for industrial and housing development; "it is part of the new development going to the Government now"; (b) when the defendant leased the property from Citiwest the radio receiving station was in a derelict state and contained asbestos. It was used for storing compost and had holes in the walls; (c) it was solely he who authorised and gave instructions to demolish the radio receiving station and water tank, and the owner, Citiwest, had nothing to do with the demolition; (d) the roof of the radio receiving station was demolished because it contained asbestos and was dangerous in the wind. The rest of the radio receiving station was demolished because it was derelict and unsafe; (e) the water tank was demolished because it was dangerous due to rust and had to be removed for safety; (f) he did not obtain council approval to demolish the water tank and the radio receiving station; (g) the reason that no development consent was obtained was that, as a farmer, he believed he was entitled to demolish any structure or building on a farm that was unstable without development consent, and had done so in the past; (h) he did not know that the Land contained a heritage item. He knew that with every sale of land a zoning certificate had to be with the sale contract; however he did not see the s 149 zoning certificate that was issued when the Land was purchased in 2003 which referred to the Land containing a heritage item. EVIDENCE OF RONALD PERICH 22 Ronald Perich, the brother of Anthony Perich and a secretary and director of the defendant, gave the following evidence, which I accept:

(a) on behalf of the defendant he expressed sincere regret and remorse for the demolition; (b) the defendant acknowledged that its conduct cannot be excused by a failure to understand the circumstances in which development consent is required to be obtained before carrying out development work, failure to understand that the structures demolished were listed as heritage items by the council, or any perception held by or on behalf of the defendant as to the condition or safety of the structures prior to demolition; (c) the defendant had put in place measures to ensure there would be no repeat of the conduct the subject of these proceedings. In particular, in September 2010 the defendant's directors had resolved to implement measures to ensure there was no recurrence prior to any proposed demolition including the following: the Board had to consider a s 149 certificate in relation to the land the subject of the proposal; the board (or a delegate) had to consult with council officers as to relevant matters, the directors had to formally approve carrying out of the proposal; and the board must not approve carrying out of the proposal unless there was development consent or the proposal was exempt development; (d) the defendant had no prior convictions; (e) the defendant and the Perich brothers are of good character; (f) the lessons learned have resulted in genuine improvements to the defendant's due diligence procedures.

SENTENCING PRINCIPLES 23 The purposes of sentencing are set out in s 3A of the Crimes (Sentencing Procedure) Act 1999 (CSP Act): " 3A Purposes of sentencing

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." 24 In determining the appropriate sentence the Court must consider the aggravating, mitigating and other matters specified in s 21A of the CSP Act. A few of those aggravating factors may be relevant in cases under the EPA Act including that the offender has a record of previous convictions, the loss or damage caused by the offence was substantial, the offence was committed without regard to public safety, and the offence involved a series of criminal acts. Relevant mitigating factors in s 21A(3) include: the loss or damage caused by the offence was not substantial; the offender does not have any record (or any significant record) of previous convictions; the offender was a person of good character; the offender is unlikely to re-offend; the offender has good prospects of rehabilitation, whether by reason of the offender's age or otherwise; the remorse shown by the offender for the offence, but only if the offender has provided evidence that it has accepted responsibility for its actions and has acknowledged any loss or damage caused by its actions or made reparation for same (or both); a plea of guilty by the offender (as provided by s 22); and assistance by the offender to law enforcement authorities (as provided by s 23). 25 In passing sentence on an offender who has pleaded guilty, a court must take into account the fact that the offender has pleaded guilty and the timing of the plea and accordingly may impose a lower sentence than it would otherwise have imposed: s 22 CSP Act. Similarly, the court may impose a lesser penalty than otherwise, having regard to the degree to which the offender has assisted, or undertaken to assist, law enforcement authorities in the prevention, detection or investigation of, or in proceedings relating to, the offence: s 23 CSP Act.

26 In determining the objective seriousness of the offence, the Court may take into account the objects of the legislation that have been breached. Relevantly, the objects of the EPA Act include encouragement of the proper development of natural and artificial resources for the purpose of promoting the social and economic welfare of the community and a better environment; the promotion and co-ordination of the orderly and economic use and development of land: the protection of the environment; and ecologically sustainable development. The objects also include the provision of increased opportunity for public involvement and participation in environmental planning and assessment.

27 The sentence must fit the offence as well as the offender. That is, it must reflect the objective circumstances of the offence and the personal or subjective circumstances of the defendant. The objective gravity of the offence establishes the upper and lower limits of the appropriate penalty irrespective of the mitigating features.

OBJECTIVE FACTORS 28 In determining the objective gravity of the offence, the circumstances of the offence to which the court may have regard include: the nature of the offence; the maximum penalty; the state of mind of the offender in committing the offence; the offender's reason for committing the offence; the foreseeable risk of harm to the environment by commission of the offence; the practical measures to avoid harm to the environment; and the offender's control over the causes of harm to the environment. Nature of the offence 29 The nature of the offence is demolition of heritage items without development consent. Absence of the due process of obtaining development consent is at the heart of the matter.

30 The following processes were circumvented by the precipitate demolition of the structures without applying for development consent. Had a development application been made to demolish the structures, a heritage impact statement would have been required pursuant to LLEP 2008 (cl 5.10(5)) and, during the currency of LLEP 1997, pursuant to cl 72(2) of that instrument. Additionally, pursuant to the Liverpool Heritage Advisory Committee Charter, the application would have been referred to the Heritage Advisory Committee of the council, whose recommendations would have been considered in the assessment of the proposal. If three or more submissions had been received following public notification, the proposal would have been referred to the Liverpool Independent Hearing and Assessment Panel, which would have reviewed the application and reported to the council. Otherwise the application would have been determined by the council or a delegate. Had consent to demolish been granted, it likely would have been subject to a standard condition requiring a photographic archival record to be provided prior to demolition. Maximum Penalty 31 The maximum penalty for this offence is $1.1 million and reflects Parliament's expression of the seriousness of the offence. It invites comparison between the worst possible case and the case before the court and provides, taken and balanced with all of the other relevant factors, a yardstick. Harm caused to the heritage environment 32 The structures demolished were of local heritage significance. However, the associated housing complex had been demolished prior to the defendant having any involvement in the land and the radio and receiving station and water tower had not been used for their historical purpose since 1995 and were in an unsafe condition at the time of their demolition. 33 The heritage significance of the demolished structures is as indicated in the Godden Mackay Conservation Plan: see [12] - [15] above. The prosecutor also read part of an affidavit of Anna London, a council heritage consultant. The prosecutor submits and I accept that it is consistent with the Godden Mackay report. Insofar as there are divergences of opinion, the prosecutor does not press the matter any harder than what is said in the Godden Mackay report.

34 The heritage value of the structures to the community was low. Prior to removal of the roof the asbestos roofing material was a health hazard, and the radio receiving station and water tank presented a safety issue: see [11] - [15] above. There is little doubt that if consent had been sought to remove the asbestos roof it would have been granted subject to conditions. If development consent had been sought and granted to demolish both structures because of their dangerous or derelict condition, there is little doubt that the consent would have been subject to a condition requiring a full photographic archival recording in accordance with NSW Heritage Office requirements. I note that a twin transmitting facility at Doonside, albeit not listed as a heritage item, was demolished in 1989 with development consent by Blacktown Council. Overall, the harm caused to the heritage environment was low.

35 The defendant submits that it is willing to engage in discussions with the council for reparation activities with respect to the two items and envisages that the outcome could include, for example, the erection of a plaque or symbolic monument which communicates and interprets the site's history to the public. Although there is no undertaking to the court in this regard, I am prepared to accept this gesture as made in good faith and as a mitigating consideration. State of mind of the defendant 36 The defendant (by its directors) mistakenly believed that as a farmer, it was entitled to demolish without development consent any structure on a rural property that was unstable. Indeed, it had had done so in the past. However, the defendant should have been aware that development consent was needed and that the need was heightened by the fact that the structures were heritage items. Reasons for committing the offence 37 The heritage items were demolished because in Mr Anthony Perich's assessment they were in an unsafe condition. Development consent was not obtained because the defendant did not realise that it was required. Foreseeability of risk of harm 38 Demolition of a heritage item without development consent self-evidently presented a risk of harm to the heritage environment. Practical measures to avoid harm to the environment 39 The practical measure to avoid harm to the heritage environment was of course not to demolish them without development consent. Control over causes 40 The defendant had control over the causes of the offence. SUBJECTIVE FACTORS 41 The defendant has no record of prior convictions.

42 The defendant and its directors are of good character. 43 The defendant is unlikely to re-offend 44 The defendant is genuinely remorseful. 45 The defendant pleaded guilty at the first reasonable opportunity and is entitled to a full 25 per cent discount for the utilitarian value of a plea. 46 The defendant has cooperated with the prosecution in the investigation of the offence. Admissions made by Mr Anthony Perich at his October 2009 interview were of significant assistance. The defendant also cooperated in the compilation of the statement of agreed facts for the sentencing hearing. Deterrence 47 One of the purposes of imposing a sentence is to prevent crime by deterring other persons from committing similar offences. There is a need for such general deterrence in a case such as this involving carrying out unauthorised demolition of heritage items even if they were in an unsafe condition. The penalty imposed must be sufficient to ensure that those carrying out demolition are reminded of their responsibilities under the law. The planning system as a whole would be rendered ineffective if demolition or other development were allowed without development consent: see Keir v Sutherland Shire Council [2004] NSWLEC 754 at [12] - [13]; Lahood v Strathfield Municipal Council [2007] NSWLEC 714 at [20]; Holroyd City Council v Shi [2007] NSWLEC 797 at [11]. 48 There is no need for specific deterrence. I am satisfied that the defendant has learnt its lesson and that it is most unlikely that it would re-offend. COSTS 49 The defendant has agreed to pay the prosecutor's costs and submits that that should be taken into account in sentencing. Although the quantum has not been agreed, it is reasonable to conclude, as in most cases, that it will be substantial. The appellate authority usually cited in this context is Environment Protection Authority v Barnes [2006] NSWCCA 246 at [78] which I think supports, and has been cited as supporting, two propositions. First, payment of a prosecutor's costs is an aspect of punishment: eg see Minister for Planning v Fancott Pty Ltd [2009] NSWLEC 170 at [73]; Environment Protection Authority v Williams [2006] NSWLEC 722 at [46]. Secondly, payment of a prosecutor's costs may also impact on the financial means of a defendant to pay a fine, which is a consideration under s 6 of the Fines Act 1996: eg see Environment Protection Authority v Wattke [2010] NSWLEC 24 at [97]; Environment Protection Authority v Hardt [2007] NSWLEC 284 at [61]. In Environment Protection Authority v Barnes the primary judge fined the defendant a total of $4,500 for two environmental offences where the maximum penalty for each was $120,000, and ordered the defendant to pay the prosecutor's costs which were agreed at over $15,000. The primary judge considered that as the costs were substantial they should be taken into account because they would impact on the ability of the defendant to pay the fine (a s 6 Fines Act consideration) and that had the costs not been so great a higher penalty would have been imposed: at [77]. The prosecutor appealed unsuccessfully against the sentence. In rejecting the prosecutor's contention that the fines imposed were manifestly inadequate, the Court of Criminal Appeal said that the prosecutor's costs were an important aspect of the punishment: at [78]. That dictum appears to stand independently of the impact of costs on the financial means of the defendant to pay the fine.

50 The Court is empowered to order a defendant to pay to the registrar of the Court, for payment to the prosecutor, such costs as the Court specifies or as may be determined under s 257G of the Criminal Procedure Act 1986 (which prescribes determination by agreement or in accordance with the Legal Profession Act 2004): s 257B Criminal Procedure Act 1986. In this jurisdiction such an order is routinely made. Consequently, payment of the prosecutor's costs is a constant aspect of punishment such that it is embedded in the general pattern of sentencing for all offences. Therefore, of itself, it does not generally seem to be a reason for reducing a penalty in a particular case lower than that suggested by the general pattern of sentencing for the relevant offence. Something more would seem to be required. CONSISTENCY IN SENTENCING 51 The current maximum penalty of $1.1 million has been in place for more than 10 years (since January 2000). According to the JIRS sentencing database, in that period almost every fine for an offence involving unlawful carrying out of a development has fallen in the range of one per cent to ten per cent of the maximum penalty, with most fines in the range of two per cent to seven per cent of the maximum penalty ($20,000 to $70,000).

52 The circumstances of each case differ but a case that bears some comparison is Willoughby City Council v BCPD Pty Ltd [2010] NSWLEC 163. There the defendant builder pleaded guilty to a charge of demolishing virtually the whole of a 1920's heritage bungalow contrary to the terms of a development consent which only permitted demolition of the rear of the bungalow. The reason for the demolition was the defendant's view that structural defects emerged during demolition which justified the demolition of the whole building. The harm done was mitigated by the heritage acceptability of a new house constructed in its place. I decided that the appropriate fine was $40,000 which I discounted for the utilitarian value of the plea of guilty to $30,000.

CONCLUSION 53 In deciding the amount of the penalty, the totality principle applies as the two offences related to works in the same complex and are sufficiently linked conceptually and in time. It is necessary to look at the totality of the unlawful behaviour and ask what is the appropriate penalty for both offences.

54 In my opinion, the total penalty should be $40,000 which I discount by 25 per cent to $30,000 for the utilitarian value of the early plea of guilty and apportion $25,000 to the demolition of the radio receiving station and $5,000 to the demolition of the water tank. ORDERS 55 The orders of the Court are as follows:

1. The defendant is convicted of both offences as charged. 2. In respect of the demolition of the radio receiving station, the defendant is fined the sum of $25,000. 3. In respect of the demolition of the water tank, the defendant is fined the sum of $5,000. 4. The defendant is ordered to pay to the registrar of the Court, for payment to the prosecutor, the prosecutor's costs in such amount as is determined under s 257G of the Criminal Procedure Act 1986. 5. The exhibits may be returned.

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