Liverpool City Council v Leppington Pastoral Co Pty Ltd

Liverpool City Council v Leppington Pastoral Co Pty Ltd - [2010] NSWLEC 170 - NSWLEC 2010 case summary — Zoe

[15]

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Telecommunications Commission (OTC) was brought into existence by the Commonwealth of Australia under the (since repealed) Overseas Telecommunications Act 1946 (Cth); (b) in about 1950-51, the OTC constructed the radio receiving station, a brick utility building, mainly single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."

[34]

(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.

[38]

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.

[41]

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.

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