Manly Council v Van Norton

THE LIMITED BASIS ON WHICH THE DEFENDANT HAS PLEADED GUILTY

1. The limited basis on which Ms Van Norton has pleaded guilty, and which the prosecutor accepts for the purpose of sentencing, is that she instructed the builder to construct the third stage of the Stairs. This was a minor portion of the unlawful development and did not involve damaging or clearing critical habitat.

AGREED FACTS

1. The parties' Agreed Statement of Facts tendered at the sentencing hearing includes the following.
2. The relevant environmental planning instrument applicable to the land at the time of the offence was the Manly Local Environmental Plan 1988 (MLEP). At all material times the land was zoned Zone No 2 Residential Zone pursuant to the MLEP.
3. Pursuant to the MLEP, only bed-and-breakfast accommodation and home occupations may be carried out on the land without development consent. All other development including dwelling-houses must be carried out with development consent (other than development that is prohibited in the zone).
4. The defendant owns the land as joint tenant with Gregory Poche, her husband.
5. The owners completed the purchase of the land on 16 December 2009.
6. The land has water frontage to Little Manly Bay, Sydney Harbour via a steep cliff.
7. At the time of the completion of the purchase and for decades prior there was a set of timber and masonry stairs that provided access from the portion of the land at the top of the cliff to the rocky foreshore below. Such access included in part steps carved into the rock cliff together with a metal handrail. At the time the owners purchased the land the existing stairs were in a dilapidated state with a number of treads missing.
8. On or about 12 April 2010 the owners engaged Leech Harmon Architects to prepare the design for a new house to be constructed on the land together with all architectural documentation as called for by Council to constitute a development application submission. Denis Leech, a principal of Leech Harmon Architects, was the responsible architect.
9. Under the terms of the engagement Mr Leech was responsible for preparing the development application, construction certificate, working drawings and for contract administration up to the issue of final occupation certificate for the home.
10. During the engagement the owners advised Mr Leech that they wished to include access stairs to the waterfront. Mr Leech advised Ms Van Norton that the stair access should be done as a separate application to the application for their new home and at a later time so it did not hold up approval of their new home.
11. On or about 19 August 2010 Leech Harmon Architects lodged development application No 264/2010 with Council seeking development consent for the construction of a two storey dwelling house with basement car parking, swimming pool and associated landscaping works on the land, and the consolidation of two lots into one lot pursuant to s 81(1)(a) of the EPA Act. The owners provided landowners' consent to the lodging of DA 264/2010.
12. Leech Harmon Architects prepared and prosecuted DA 264/2010 on the owners' instruction.
13. On 17 February 2011 Council granted consent to DA 264/2010 subject to conditions. The conditions imposed on the consent included conditions relating to Little Penguins and Long-nosed Bandicoots.
14. Condition ANS06 to the consent provides: A Site Construction Management Plan is to be prepared and is to include a Statement of Environment Management. This section, as a minimum, is to outline all measures for the protection of Long-nosed Bandicoots and Little Penguins during the construction phase, and is to be checked and signed by the site ecologist, prior to commencement of construction. Reason: To protect the ecological habitat in the locality.
15. Condition ANS07 to the consent provides: No work or storage of any materials is to occur below the cliff line without the appropriate licence from the DECC. This includes the removal of weeds. Reason: To protect the ecological habitat in the locality.
16. Condition ANS12 (2ST08) to the consent provides: A site Construction Management Plan is to be prepared and is to include a section for Environmental Management. As a minimum, this section is to outline all measures for the protection of the Long-nosed Bandicoots and Little Penguins during the construction phase (including, but not necessarily limited to, those requirements of the conditions of this consent and those measures identified in the ecological report submitted as part of the Development Application). This section is to be checked and signed by the site ecologist, prior to the commencement of construction. The CMP is to be approved by the Council/Accredited Certifier prior to the issue of the Construction Certificate. Reason: To ensure all measures for the protection of Long-nosed Bandicoots and Little Penguins at the development site, are incorporated into one document for the overall management of the construction, to ensure no one measure is overlooked.
17. Condition ANS18 (4TS06) to the consent provides: Construction is to be undertaken in accordance with the Construction Management Plan (CMP). All workers on the site are to be made aware of the content of the CMP. Reason: All measures for the protection of Long-noised Bandicoots and Little Penguins at the development site are incorporated into the CMP.
18. Condition ANS21 (4TS10) to the consent provides: All Little Penguin Critical Habitat areas, including the rocky cliff and the intertidal area are to be fully protected for the duration of the works. This prevents any machinery use, storage of construction materials, supplies storage, or waste receptacles placed in the area. It also prevents any clearing of vegetation, soil, rock or rubble, and dumping of any material within these areas. Reason: These areas are critical to the survival and recovery of the endangered Little Penguin population and approval has not been given for work in these areas.
19. The owners engaged Horizon Habitats Pty Ltd, a builder, to construct their home.
20. David Moses was a director of the builder who was responsible for overseeing the construction of the home.
21. Ron Efrat was a project manager employed by the builder.
22. Ian Dearlove was the site foreman employed by the builder and was responsible for supervising the construction of the home.
23. Peter Westwood was a leading hand (second in charge after Mr Dearlove) and was responsible with Mr Dearlove for supervising the construction of the home.
24. Sean Hannigan was the "clerk of works" and was the owners' agent, particularly when the owners were overseas.
25. Subsequent to the issue of the consent, the builder prepared a construction management plan dated 1 April 2011 pursuant to conditions ANS06 and ANS12 of the consent. The construction management plan included a statement of environmental management which was required pursuant to those conditions.
26. The statement of environmental management summarised the measures required for the protection of Long-nosed Bandicoots and Little Penguins and stated in part that: Methods and measure for the protection of the Long-nose Bandicoots and Little Penguins on this site are: • Excavation can only occur between the 1st March and the 31 May. ANS23. • No works of any kind is to occur below the top of the cliff or access without an appropriate licence from DECCW. Including removal of weeds. There is to be no access to the foreshore by workers. A sign prohibiting access is to be attached to the gate. Conditions ANS07, ANS21 and ANS23. • Site induction is required for all visitors and workers and it will include awareness of the potential for endangered penguins and bandicoots occurring on the site, the restriction of access below the cliff top, that the fines are up to $200,000 and/or 2 years in gaol for harming penguins or bandicoots or their habitat, the need to seal the site at the end of each day to prevent bandicoot and penguin access and the other requirements of this Environment Management Statement and the Construction Management Plan. A copy of this Statement will be provided to the Principal Certifier and will be laminated and placed in any office, tea room or notice board. ANS14 and ANS18.
27. Part 2 of Schedule 1 of the Threatened Species Conservation Act 1995 identifies the Little Penguin (Eudyptula minor) in "the Manly Point Area (being the area on and near the shoreline from Cannae Point generally northwards to the point near the intersection of Stuart Street and Oyama Cove Avenue, and extending 100 metres offshore from that shoreline)" as an endangered population.
28. The consent did not authorise the demolition of the existing stairs or the reconstruction or replacement of the new stairs.
29. At no stage from the period of the consent being granted to March 2013 did the Department of Climate Change and Water provide a licence in respect of the consent conditions listed above to protect the critical habitat of the penguins.
30. On or about 23 March 2011 Mr Leech contacted Nicholas Skelton of GIS Environmental Pty Limited regarding replacement of the existing stairs.
31. Mr Skelton is an environmental scientist and was responsible for preparing documentation in relation to penguins and bandicoots to support DA 264/2010.
32. On 26 March 2012 Mr Leech sent a letter to the Office of Environment and Heritage (OEH) requesting the Director-General's requirements for the preparation of a species impact statement for a threatened species development application for the replacement of foreshore access stairs within critical habitat at 10 Addison Road, Manly.
33. The construction of the development occurred pursuant to two contracts between the builder and the owners: 1. A fixed price residential building contract signed by the owners and dated 6 April 2011. 2. A cost-plus residential building contract signed by the owners and dated 6 April 2011.
34. Work commenced under both contracts in early April 2011.
35. On 29 April 2011, construction certificate number 2011-0837 was issued for excavation and site works on the land by private certifier Paul Fitzgerald of Fitzgerald Building Certifiers Pty Ltd in relation to the 17 February 2011 consent.
36. On or about 10 May 2011 the owners varied the engagement with Mr Leech. Under the terms of the variation Mr Leech agreed to carry out the contract administration work for the home through Lindsay Little & Associates Pty Limited in conjunction with Leech Harmon Architects.
37. Harvey Little is a builder and director of Lindsay Little & Associates Pty Limited. Mr Leech is also a director of Lindsay Little & Associates Pty Limited.
38. On 7 June 2011, Council approved an application to modify the consent pursuant to s 96(1A) of the EPA Act. The approved modifications related to internal reconfigurations to the sauna, condenser units, onsite detention tank, balconies and portions of the roof, and amendments to the size of the windows. The owners provided landowners' consent to the lodging of the application to modify the consent.
39. The modified consent did not authorise demolition of the existing stairs or construction of replacement stairs.
40. Leech Harmon Architects prepared, lodged and prosecuted the modification application.
41. On 25 July 2011, construction certificate number 2011-0839 was issued by the private certifier for the construction of the development in relation to the 7 June 2011 modified consent. The construction management plan formed part of the approved construction certificate number 2011-0839.
42. On or about 11 February 2012, the works under the fixed price contract reached completion. Afterwards, the works undertaken by the builder on the land proceeded under the cost-plus contract.
43. During the construction of the development, site meetings (which were usually weekly on a Monday) were held at the owners' residence at unit 5, 6 Addison Road, Manly and, after lockup stage, mostly at the site. These site meetings were usually attended by the owners (unless they were overseas, or in the case of Mr Poche too unwell to attend), Mr Little, Mr Hannigan and representatives of the builder.
44. On or about 23 April 2012 the Director-General forwarded to Mr Leech his requirements for the preparation of a species impact statement for development to reconstruct foreshore access stairs at 10 Addison Road, Manly.
45. Mr Leech never lodged a development application or any application seeking consent to reconstruct the foreshore access stairs at 10 Addison Road, Manly, nor did he inform the owners at any time that he had not sought consent, nor did the owners expressly instruct Mr Leech to obtain consent or instruct anyone to prepare a species impact statement following the receipt of the Director-General's requirements.
46. On 30 July 2012, there was a meeting on-site at the rear of the land adjacent to a gap in the retaining wall where the existing stairs were discussed and at which Mr Little and Mr Dearlove were present.
47. The builder prepared a project budget dated 31 August 2012.
48. The builder prepared a revised budget dated 24 September 2012 which includes an estimated allowance in the budget for $20,000 in respect of an item being "waterfront staircases".
49. A meeting was held either on the land or in the owners' unit sometime between 1 August 2012 and September 2012. The owners, Mr Leech and representatives of the builder were in attendance at the meeting. During the meeting a discussion occurred about replacing the existing stairs.
50. Three carpenters employed by the builder commenced work on the stairs to the waterfront on or about 21 September 2012. There were no subcontractors required for the construction. The timber and hardware materials which were required to build the stairs were ordered by the builder. A record was kept in the site diary of the number of hours of labour applied to the building of the stairway, as well as any materials used and the invoices received from the hardware suppliers. The costs were then included as part of the regular fortnightly progress claims under the cost-plus contract.
51. The stairs were set out by one of the carpenters on or about 21 September 2012. On or about 27 September 2012 the carpenters commenced the construction of part of the stairs in the garage which had been built on the land.
52. Ms Van Norton observed the stairs being prepared in the garage of the house at one stage.
53. The existing staircase was used by the builder's employees to access the foreshore area. One of the carpenters used a whipper snipper to clear most of the vegetation below the cliff line including at the base of the stairs prior to the installation of the new staircase.
54. Between 8 and 16 October 2012 the builder demolished the existing stairs and installed a set of new stairs in their place. The new stairs had been prefabricated on site from a template prepared from the existing stairs.
55. On 12 October 2012, two Council compliance officers, Mr Carl Georgeson and Mr Shane Smith, attended the land and inspected the construction site, including the new stairs. At the time of the inspection, the existing stairs had been removed and had been replaced by the new stairs but works to the new stairs were incomplete. Masonry supports had been built under the stairs to support them. Mr Dearlove and Mr Westwood were present on the land during the Council officers' inspection.
56. The Council officers advised Mr Dearlove to stop work. Work continued on the stairs between 12 and 16 October 2012.
57. On 15 October 2012, a site meeting was held and was attended by the owners, Mr Hannigan, Mr Little and the builder's employees. As a result of the site meeting, Mr Leech was assigned the task of contacting Council about the stairs.
58. On 16 October 2012 Ms Deborah Stevenson, an officer from the OEH telephoned Mr Leech. Mr Leech explained to her that he had instructed the builders to go over the edge of the cliff line into Little Penguin Critical Habitat to repair the stairs. (I note that this is based on Mr Stevenson's affidavit at trial which was not read, and is contrary to her oral evidence, her contemporaneous file note and my finding in the Leech judgment at [74]). Later that day Ms Stevenson, together with OEH officer Mr Ben Hope, attended at the site to inspect the new stairs. Ms Stevenson spoke with Mr Dearlove and Mr Dearlove undertook to cease works on the new stairs voluntarily.
59. On 19 October 2012, Council issued what purported to be an order pursuant to s 121B of the EPA Act to Ms Van Norton and Mr Poche to the effect that Council intended to issue an order requiring an immediate stop work on the stairs. This order was addressed to Ms Van Norton's Bayview address, where she was then living. At that time, Ms Van Norton and Mr Poche were away and it was faxed by Mr Hannigan from their Bayview home to the offices of Leech Harmon Architects.
60. On or about 9 November 2012 the prosecutor issued a Notice of Intention to give an Order Nos. 2(a), 12(a) and 15 to the owners (NOI) which would require the owners, amongst other things, to demolish the new stairs.
61. The owners were away overseas between 9 November 2012 and 1 December 2012.
62. On or around 1 December 2012 Mr Poche found the NOI amongst his mail on his return from overseas. Mr Poche wrote the following words on the NOI and faxed it to Mr Leech's office: Attn Mr Denis Leech Denis, we've been in USA for three weeks, arriving back Saturday night (1/12/12) & opened this yesterday - over to you, Regards, Greg.
63. The defendant did not read the NOI or the hand written note written on it by Mr Poche until it was shown to her by her former solicitors during the Class 1 appeal to this Court against the order.
64. On 7 December 2012 Mr Leech made representations to Council in response to the NOI.
65. On 13 December 2012, Mr Poche suffered a second serious stroke that required his hospitalisation until 22 December 2012. After further seizures, Mr Poche was readmitted to hospital from 9 to 24 January 2013.
66. On or about 17 December 2012 Mr Leech advised Ms Van Norton that the private certifier may not be able to issue an occupation certificate for the home which was nearing completion.
67. Between 20 December 2012 and March 2013, the builder continued to undertake work on the land in accordance with the terms of the cost-plus contract.
68. In early 2013 Mr Leech instructed the builder to finish the "penguin handrail".
69. Between 29 January 2013 and February 2013 further works on the new stairs occurred. Those works included the addition of wooden handrails and steel cable.
70. At about the time that the further works were close to completion Mr Dearlove invited Ms Van Norton to inspect the stairs. The defendant had not seen or been on the stairs prior to that time.
71. The defendant walked down the stairs to the rock platform where she observed that there were existing post holes in the rock platform and a gap between two rocks near the base of the new stairs. The defendant had a conversation with Mr Dearlove to the following effect: Defendant: Was there a handrail here previously? Dearlove: Yes Defendant: Would it be OK to extend that handrail to here and build a little bridge over the gap in the rocks? Dearlove: If that's what you want I'll do it.
72. The builder then constructed an extension to the handrail and a wooden bridge at the base of the stairs.
73. On 4 February 2013, Mr Leech made an application to Council for a building certificate for the "repair of existing timber external staircase". Included with this application was an owner authorisation purporting to have been signed by Mr Poche and Ms Van Norton.
74. On 8 February 2013, Sinead Harmon of Leech Harmon Architects sent an email to Mr Efrat of the builder advising they had "put a building certificate into Manly Council for the external cliff staircase" and requesting a "formal quote from the builder stating the cost of works for additional fees".
75. The builder prepared a formal quote dated 25 February 2013 for the supply and installation of the stairway in the amount of $9,000 plus GST.
76. On 27 February 2013 Leech Harmon Architects amended the building certificate application to be an application for unauthorised works.
77. On 5 August 2013, the prosecutor refused the building application.
78. On 1 November 2013 the prosecutor issued an Order No 2(a), 12(a) and (15) ordering the owners to, amongst other things, demolish the new stairs.
79. On 26 November 2013 the owners commenced Class 1 proceedings in this Court appealing against the order.
80. On 18 December 2013 the owners commenced Class 1 proceedings in this Court appealing against the prosecutor's refusal to issue a building certificate for the new stairs.
81. Both appeals were heard together by Commissioner Tuor in June 2014.
82. The land is within an area identified as critical habitat for the endangered population of Little Penguin, pursuant to the Threatened Species Conservation Act. The Little Penguin Critical Habitat Map shows the critical habitat areas of the Little Penguins in Manly. The land is located in Critical Habitat Area B.
83. The sub-population of Little Penguins along Addison Road has been recorded in Tables 3, 4 and 5 of the Manly Little Penguin Recovery Program Draft 2013/2014 Monitoring Report as being the most productive sub-population within the Manly Little Penguin population.
84. Prior to the removal of the old stairway in or about October 2012 and the subsequent construction of the new stairway to the waterfront, there were three years (2009-10, 2010-11 and 2011-12) of recorded successful breeding by Little Penguins at the nest on the site. The breeding events were recorded as part of the annual monitoring of Little Penguins at Manly.
85. The nest located at the foreshore of the site is known as nest 310. During the fortnightly monitoring in 2012-13 season, where monitoring commences annually in late June and finishes in late January, there were no signs of activity being fresh guano. There was an empty nest at nest 310 when it was inspected on 3 September 2012. The staircase was constructed within 4 metres of a Little Penguin roosting site and within 5 metres of a rock cavity previously containing the nest of a Little Penguin.
86. Penguins were not using nest 310 during the period when the existing stairs were demolished and the new stairs were constructed.
87. Nicholas Carlile, an ecologist specialising in seabirds in the employ of the OEH, and Mr Skelton gave evidence in the Class 1 proceedings. The experts agreed that the physical impacts on the area of critical habitat consisted of the clearing of vegetation around the new stairs and the damage to the rock surface by the drilling into the rocky foreshore. The experts agreed that whilst the drilling caused damage to the rock surface there was no damage to the value of habitat for penguins caused by the drilling.
88. On 4 November 2014 Commissioner Tuor upheld both appeals and made orders directing that a building certificate be issued in respect of the stairway, subject to completion of certain works set out in and compliance with a plan of management.
89. The objectives of that plan include to replace the vegetation that provided cover for the Little Penguins travelling to the nest under the stairs. The plan provides for three stages of reinstatement of vegetation, being the planting of vegetation, establishment of the vegetation for 12 months and then the maintenance of the vegetation. No works can be carried out in the penguin breeding season (1 June to 29 February the following year).
90. In her judgment the Commissioner found that: There is no reason to consider that the nest would not be used again if the vegetation were re-established and the breeding penguins not disturbed.
91. The Commissioner also accepted that: Reliance on a management regimen to prevent adverse impacts on the Little Penguins is less certain than removal of the stairs as it relies on implementation by current and future owners of the site. Furthermore, while vegetation can be established to cover the stairs and provide sheltered access for the penguins to nest, there may be an inherent conflict in having vegetation on stairs were people are to pass, albeit only at certain times of the year.
92. The defendant by her contractors and with the permission of OEH has carried out the first stage of revegetating the impacted area in accordance with the plan of management approved by the Court. The vegetation was planted between 17 April and 12 May 2015. The vegetation regeneration accordingly will not be able to be completed until 11 May 2016.
93. The defendant co-operated with the prosecutor in relation to the investigation of the offence and the proceedings.
94. The defendant attended an interview with Council officers Mr Blake Dyer and Mr Carl Georgeson and provided answers to all questions without claiming privilege against self-incrimination.
95. The defendant pleaded to the charge in these proceedings immediately upon hearing the evidence of Mr Dearlove from the witness box which triggered her recollection of the conversation that occurred in relation to the handrail and the little bridge.
96. The oral evidence of Mr Dearlove in relation to the handrail and the little bridge was an account that was never previously provided by Mr Dearlove or put to the defendant at any time during the investigation or the proceedings.

WHAT THE PROSECUTOR DOES NOT PRESS ON SENTENCING

1. In order to avoid confusion, it may be noted that the Statement of Agreed Facts omits or contradicts (and the prosecutor does not press at this sentencing hearing) significant prosecution evidence at trial or findings in the Leech judgment that are adverse to Ms Van Norton or the owners. I therefore do not take them into account on her sentencing: They include: 1. OEH officer Ms Stevenson's evidence that on 16 October 2012 Mr Dearlove told her that Mr Poche authorised the works: Leech judgment [77]. 2. Mr Dearlove's evidence that in or about August 2012 Ms Van Norton instructed the builder to build the stairs as soon as possible: Leech judgment [88]. 3. Mr Efrat's evidence that in or about August 2012 the owners instructed the builder to replace the stairs: Leech judgment [89]. 4. The Statement of Agreed Facts states that on 16 October 2012 Mr Leech told an OEH officer, Ms Stevenson, that "he had instructed the builder to go over the edge of the cliff…to repair the stairs" This is taken from her affidavit filed for the trial at [13] which, however, was not read at trial. It is inconsistent with her contemporaneous note and with her oral evidence at trial referred in the Leech judgment at [74] where she said nothing about Mr Leech giving the instruction.

DEFENDANT'S EVIDENCE

1. At the sentencing hearing Ms Van Norton gave evidence, including the following which I accept: 1. Mr Poche had a stroke in September 2012 followed by seizures in December 2012 and January 2013 and was hospitalised for much of January 2013. Consequently, she was unable to focus on what was going on at Addison Road. Throughout most of 2013 he required her full time care. She was greatly stressed and believes this contributed to what occurred at trial on 26 August 2015. 2. Before hearing Mr Dearlove's oral evidence on 26 August 2015 that she had given him an instruction in February 2013 to construct the third stage of the stairs, she had no recollection of ever giving a direction to anyone to carry out work on the stairs. While she had always wanted the existing stairs to be reconstructed, as they were unstable, the arrangements for this were being dealt with by Mr Leech. 3. Her limited recollection relevant to the construction of the stairs included being present with Mr Leech when he said the stairs could go ahead, probably in early August 2012, and having seen them being prepared in the garage of the new house at one stage. 4. In early 2013, she was invited by Mr Dearlove to view the stairs and that was the first time she had seen or walked on them. She saw the stairs with handrails in place but no wire cables between them. She inquired whether the work was finished. She did not appreciate that there was no approval for the construction. She did not know that the stairs at that stage had been built illegally. She assumed they had been built legally and that approval had been given. 5. Mr Dearlove's evidence for the first time on 26 August 2015 that she asked him to replace a metal handrail at the base of the stairs and build a little bridge over a gap in the rock platform triggered her memory that she had done so. She was overcome by acute embarrassment and immediate remorse for the trouble she had caused by not remembering this before. She immediately advised her solicitor and after court conferred with her counsel, apologised and instructed them to enter a plea of guilty. 6. She would not have accepted work going ahead without a proper approval having been obtained. 7. She has instructed her consultants to implement the works required by the plan of management approved by the Commissioner. 8. When she instructed Mr Dearlove to carry out work in February 2013 she was unaware that Council had a problem with the stairs.

SENTENCING CONSIDERATIONS

1. The purposes of sentencing are set out in s 3A of the Crimes (Sentencing Procedure) Act 1999: (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.
2. Matters that the Court must take into account when determining the appropriate sentence are identified in s 21A.
3. The sentence must reflect and be proportionate to the objective circumstances and the subjective (ie personal) circumstances of the offender.
4. The penalty should be determined by the instinctive synthesis method. The Court identifies all the factors relevant to the sentence and weighs their significance to arrive at an appropriate sentence.
5. The primary consideration on sentence is the objective seriousness of the offence, which establishes the upper and lower limits of the appropriate penalty irrespective of the mitigating features.
6. The objective circumstances relevant to the seriousness of the offence include the nature of the offence, the maximum penalty for the offence, the environmental harm caused by the commission of the offence, the defendant's state of mind in committing the offence, the defendant's reasons for committing the offence, the foreseeability of the risk of harm by the commission of the offence, the practical measures available to the defendant to avoid harm, and the defendant's control over the causes of the offence.
7. The subjective or personal circumstances include a plea of guilty, contrition and remorse, character, cooperation with authorities, and risk of reoffending.

Nature of the offence

1. The defendant instructed the builder to carry out development in the absence of development consent to do so and not in accordance with an existing development consent. The instruction was to construct a handrail and small wooden bridge at the base of the constructed stairs.
2. The carrying out of development in the absence of development consent or not in accordance with a development consent undermines the integrity of the planning system and the effectiveness of the statutory planning controls. That in turn undermines objects of the EPA Act, particularly the objects of promotion and coordination of the orderly and economic use and development of land and the provision of increased opportunity for public involvement and participation in environmental planning and assessment: s 5(a)(ii) and (c) of the EPA Act. The defendant's actions prevented Council and the OEH from assessing the likely impacts of the works on the known threatened species in the area and their habitat, denied the opportunity to refuse or grant approval based on that assessment, and denied the community the opportunity to object to the development.

Maximum penalty

1. The maximum statutory penalty is the public expression by Parliament of the seriousness of the offence. The maximum penalty is reserved for the worst case. At the time of the offence, the maximum penalty for this offence under s 125(1) of the EPA Act was $1.1 million: s 126(1) of the EPA Act read with s 17 of the CSP Act. On 31 July 2015, ss 125 and 126 of the EPA Act were amended and ss 125A, 125B and 125C were introduced to categorise offences as tier 1 (the most serious), tier 2 or tier 3 with a reduced maximum penalty for an individual in each tier. In the present case, the offence was committed prior to that date. Ordinarily legislative changes to maximum penalties do not apply retrospectively to an offence committed before the commencement of the legislative changes. However, s 19(2) of the CSP Act provides: 19 Effect of alterations in penalties … (2) If an Act or statutory rule reduces the penalty for an offence, the reduced penalty extends to offences committed before the commencement of the provision of the Act or statutory rule reducing the penalty, but the reduction does not affect any penalty imposed before that commencement.
2. The parties' written submissions accepted that s 19(2) operates to retrospectively apply the reduced maximum penalties for individuals in ss 125A, 125B, and 125C of the EPA Act. If that were so, then the defendant's offence is a tier 2 offence where the maximum penalty for an individual is $500,000. However in City of Sydney Council v Adams, unreported LEC, 15 December 2015 (an oral judgment not yet published in writing) Preston CJ of LEC decided that that was not so for the reason that an offence committed against s 125(1) of the EPA Act before 31 July 2015 is not an offence to which any of ss 125A, 125B or 125C applies.

Environmental harm caused by commission of offence

1. The development was in an area of the defendant's land which is declared as a critical habitat for the fairy penguin. Condition ANS21, of the development consent stated that this area is critical to the survival of the endangered Little Penguin population and that approval had not been given for work in this area. The construction of the handrail and small wooden bridge at the base of the newly constructed stairs did not cause actual harm to the critical habitat, in contrast to earlier works involving the clearing of native vegetation which did cause such harm. It did create the potential for harm, particularly as the offence was committed during the breeding season of the Little Penguin. During construction of the stairs the penguins were not using the only nearby nest.
2. The potential harm, insofar as it was ongoing, appears to have been eliminated by the order of the Commissioner in the Class 1 proceedings, in connection with an order that the prosecutor issue a building certificate for the stairs, that the defendant implement a management plan, which involved not only rehabilitation of the cleared vegetation but limitations on the times when the stairs could be used. To date, the defendant has complied with her obligation under the management plan.

State of mind

1. A strict liability offence, such as this, that is committed intentionally, recklessly or negligently will be objectively more serious than one committed accidentally.
2. The defendant intentionally instructed Mr Dearlove to carry out the third stage of construction of the stairs. However, I have accepted her evidence that she assumed the stairs had been built legally and that approval had been given and did not know she was acting outside the law in giving the instruction.
3. The prosecutor does not dispute that evidence but submits that she should have known that development consent was required to lawfully carry out the work and that there was no reason to think it had been obtained, given the following considerations: 1. On or about April 2010 the defendant advised her architect, Mr Leech, that she wished to include access stairs to the waterfront. She received advice from Mr Leech that the stairs should be done as a separate application and at a later time so that it did not hold up approval of her new home. 2. Mr Leech prepared DA 264/2010 for the construction of the subject house (which did not include the waterfront stairs) on the defendant's instructions and it was lodged with the defendant's consent. 3. DA 264/2010 was subsequently modified on 7 June 2011, with the defendant's consent. The modified consent did not authorise the demolition of the existing stairs or the construction of the replacement stairs. 4. The defendant never expressly instructed Mr Leech to obtain consent for the reconstruction of the stairs. 5. The defendant's "owners consent" was never provided for a development application for the stairs.
4. In oral submissions, the prosecutor puts it higher by submitting that in the circumstances she was reckless (or derelict in some way) in giving the instruction to the builder without checking first with the architect that construction was lawful.
5. I do not accept that she was reckless given the following exceptional circumstances in which she found herself at the time she gave the instruction. She had reasonably relied on Mr Leech to obtain Council approval. In October 2012 he told her he would sort it out with Council. She assumed he had done so and obtained approval because work proceeded thereafter. When she asked the builder in February 2013 if it would be OK to extend the handrail a little over a gap and bridge the gap, he replied that if that was what she wanted he would do it. At that time her husband had recently become seriously ill and she had been left alone to manage completion of construction of a large house. I accept that she should have checked with the architect that consent had been obtained. However, the circumstances to which I have referred help to explain why she did not and mitigate her failure to do so.

Reasons for the commission of the offence

1. The defendant's reason for committing the offence was that she wished the stairs to include the features of the hand rail and bridge the subject of her instruction. It is not suggested that it was committed for financial gain.

Foreseeability of risk of harm

1. The potential for harm that I have addressed earlier was foreseeable.

Control over causes of the offence

1. The defendant had control over the causes that gave rise to the offence.

Practical measures to avoid environmental harm

1. Practical measures the defendant could have taken to avoid harm included obtaining a new development consent or a modification of the existing development consent to permit rebuilding of the stairs. Although she was reliant on Mr Leech to attend to those matters, in light of the extenuating circumstances facing her at the time, she should not have been providing instructions to critical parts of the stairs in an area she knew to be critical habitat of an endangered population.

Conclusion on objective seriousness

1. The defendant submits that the objective circumstances are at the bottom of the range for this type of offence. In my opinion, the objective seriousness of the offence is at the low end of the range.

No prior convictions

1. It is a mitigating factor that the defendant has no prior convictions for any offence.

Good character

1. It is a mitigating factor that, as the character references before the Court demonstrate, the defendant is a person of very good character.

Remorse and contrition

1. Remorse is a mitigating factor. The defendant has accepted responsibility and expressed remorse, contrition and embarrassment. She has regularised the unlawful works by implementing and obtaining a building certificate, and she has implemented and continued to comply with a plan of management for revegetation of the part of the declared critical habitat disturbed by earlier unauthorised works.
2. It is extraordinary that the defendant had no recollection of giving the instruction until hearing Mr Dearlove's evidence at trial. Nevertheless, given the stressful circumstances at the time she gave the instruction, I accept that is so and that she is remorseful, and I give her remorse full weight.

Guilty plea

1. The defendant is entitled to a discount upon sentence for the plea of guilty. Generally, the discount for a plea of guilty is in the order of 10% to 25% depending upon the utilitarian value of the plea for the criminal justice system. There may be exceptional cases, where as a matter of fairness to the offender, a discount will be given for a plea of guilty even where there is no utilitarian value in it because of its lateness: Morton v R [2014] NSWCCA 8 at [32]-[33] and the cases there cited. Here the defendant did not change her plea to guilty until the start of the fourth day of the trial. By this point in time, the prosecutor had expended considerable resources preparing for and conducting the trial. As is common ground, the lateness of the plea of guilty diminished its utilitarian value and a full discount is therefore inappropriate.
2. However, in fairness to the defendant, Mr Dearlove's oral evidence that jogged the defendant's memory and prompted the plea was not previously particularised by the prosecutor and was not given until the third day of the trial. Her previous amnesia as to giving the instruction was probably brought on by the considerable stress she was under when she gave it due to her husband's serious ill health.
3. In these exceptional circumstances I assess the discount for the late plea of guilty at 20%.

Assistance to law enforcement authorities

1. Assistance to law enforcement authorities is a mitigating factor. The defendant submits that she cooperated with the prosecutor to the extent of willingly answering questions in a recorded interview without claiming privilege, giving the prosecutor a pre-trial written statement of her actions as she remembered them, and agreeing on a statement of facts for both the trial and the sentencing hearing. I accept the defendant's submission subject to the qualification that the interview was a compelled interview. The prosecutor submits that I should take into account against her that the prosecutor declined to use her pre-trial statement. That was a matter for the prosecutor and does not diminish such cooperation as she gave.

Likelihood of re-offending

1. It is highly unlikely that the defendant will re-offend. That is a mitigating factor.

Prospects of rehabilitation

1. It is a mitigating factor that, in my opinion, the defendant has good prospects of rehabilitation.

Capacity to pay a fine

1. The defendant certainly has the capacity to pay a fine.

Deterrence

1. The prosecutor submits that having regard to the "deliberate and opportunistic nature" of the offence, others may be emboldened to conduct themselves similarly unless a clear message is sent that conduct of this nature will result in "heavy penalties". I agree that there is a need for general deterrence. Whether that should translate into a heavy penalty in this case depends upon all the circumstances. As it is highly unlikely that the defendant will re-offend, there is no need for individual deterrence.

CONSISTENCY IN SENTENCING

1. Reasonable consistency in sentencing means that like cases are to be treated alike and different cases are to be treated differently. In The Queen v Pham [2015] HCA 39 at [28] the plurality (French CJ, Keane and Nettle JJ) held that the consistency that is sought is in the application of the relevant legal principles. Gageler and Bell JJ said that it is also concerned with reasonable consistency in sentencing outcomes, that the qualifier "reasonable" is an acknowledgement both that sentencing is a discretionary judgment and that the mix of factors that must be weighed in determining the appropriate sentence will never be precisely the same as in a past case or cases, and therefore consistency does not require numeral equivalence: at [46].
2. The present case may be compared with the following sentencing cases for the same type of offence.
3. In North Sydney Council v Perini (No 2) [2013] NSWLEC 91 Council granted consent for the demolition of an existing pool and the construction of a new dwelling on land which fronted Sydney Harbour. The defendant, by his agents, carried out development which was otherwise than in accordance with the plans specified in the consent. The main elements of the unauthorised works were the construction of a swimming pool and equipment room, removal of the splay or chamfer from the dwelling, increased height and relocation of the garage, increased depth of the excavation and the increased height of the dwelling. The defendant engaged a qualified architect to provide advice during the development at the site. Pepper J held that the offence was of low objective gravity particularly due to the limited degree of actual harm caused by the commission of the offence: at [161]. The defendant was also found to have relied reasonably on the advice of their architect in relation to all of the unauthorised works, except for the construction of a pool, which the defendant clearly knew required consent: at [154]-[156]. The subjective circumstances taken into account were the lack of prior convictions, good fame and character, cooperation, unlikelihood of re-offending, the defendant's considerable financial means and early plea of guilty (resulting in a 25% discount). The defendant was fined $40,000 which was discounted by 30% to $28,000 and ordered to pay the prosecution's costs.
4. Manly Council v Horizon Habitats Pty Limited [2015] NSWLEC 15 concerned the construction of the same stairs by a defendant who was the builder in the present case. As I noted earlier, the evidence in that case was not the same as in the present sentencing case nor was it the same as the prosecution evidence at trial in the present case, nor was it the same as the findings in my judgment in the Leech case. The builder directed its workers to construct the stairs in contravention of the development consent conditions in force at the time. The case proceeded on the basis that the owners instructed the builder to replace the stairs, and that the builder relied on Mr Leech to get Council approval: at [23], [26], [27], [33]. While there was no evidence of actual harm to any Little Penguins or their population, there was a serious risk of such harm and some relatively minor and transitory actual harm to their habitat: at [60]. The defendant was also clearly aware that the works were in breach of the development conditions and failed to heed Council's warnings: at [62]. Sheahan J held that the offence was of moderate objective seriousness when these factors were taken into account: at [67]. The subjective circumstances were the lack of prior convictions, good fame and character, cooperation with the prosecution, unlikelihood of re-offending, and an early plea of guilty (resulting in a 25% discount). The defendant was fined $60,000 which was discounted by one third to $40,000 and ordered to pay the prosecutor's costs. The agreed facts found by Sheahan J, as expressed in his Honour's judgment, are substantially different from the facts agreed and supplemented in the present case. Consequently, the offence in the present case is much less serious.
5. In Burwood Council v Pratelli [2014] NSWLEC 28 the defendant, an owner/builder unfamiliar with the building industry, constructed a new dwelling which was in breach of three conditions of the development consent. This was the first time that the defendant had built a house or undertaken any kind of development work. The key breaches related to the subfloor storage area of the dwelling which was not constructed according to plan. The defendant explained that she had relied on the advice of her builder, who stated that the works to the subfloor area were able to be carried out. It was also clear that the commission of the offence caused no actual harm to the environment and came with no financial gain. In the circumstances Preston CJ of LEC found the objective gravity of the offence to be at the low end of the spectrum at [34]. Subjective circumstances taken into account were the lack of prior convictions, genuine contrition and remorse, steps taken to rectify the works and early guilty plea (resulting in a 25% discount). The defendant was convicted and fined $13,000 reduced by 25% to $9,750 and ordered to pay the prosecutor's costs.
6. In Willoughby Council v Vlahos [2013] NSWLEC 71 the defendant, a licensed builder, pleaded guilty to carrying out development works without consent. Consent was granted for the demolition and construction of a new dwelling on the defendant's land with a condition that a large Casuarina tree growing in the rear yard of the land be protected and retained. The defendant subsequently arranged for and supervised the removal of this tree. This decision was not made at the spur of the moment and the defendant being a licensed builder should have "known better": at [32] and [36]. Craig J concluded that the offence should be classified as of low to moderate objective seriousness and also noted that the loss of a single tree cannot be regarded as trivial: at [27]. An application under s 10 of the Crimes (Sentencing Procedure) Act (CSP Act) was rejected due to a lack of extenuating circumstances: at [45]. The subjective circumstances taken into account were the lack of prior convictions, genuine contrition and remorse, unlikelihood of reoffending, cooperation and an early guilty plea. The defendant was fined $17,500, which was reduced to $12,500, and was ordered to pay the prosecutor's costs.
7. In Warringah Council v Bonanno [2012] NSWLEC 265 the defendant was charged with carrying out development without consent in circumstances where consent was required. The defendant cut down and/or removed trees and other vegetation from the Crown Land located on the beachfront between the sea and the rear of his then residential property. The environmental harm caused was substantial, and likely never to be fully remediated while also being clearly foreseeable. There was also a financial motivation due to the defendant's desire to maximise the sale price of his property: at [56]. Taking this into account Sheahan J held that the offence was objectively serious with some aggravating features: at [56]. The subjective circumstances taken into account were the lack of prior convictions, good fame and character, cooperation and early guilty plea (resulting in a 25% discount). The defendant was fined $50,000 discounted to $37,000 and ordered to pay the prosecutor's costs.
8. In Lane Cove Council v Wu [2011] NSWLEC 43, the defendant carried out development otherwise than in accordance with a building consent, which included excavation beyond that which was permitted by the relevant consent. The defendant was fined $22,500, taking into account the fact that the offence was committed in a manner that was more than reckless, but not intentional, the defendant had no prior criminal record, his professional standing had been damaged by the prosecution, he was unlikely to re-offend, he had co-operated with the council, he had expressed contrition and remorse, he did not have full control over the development, he pleaded guilty early and he agreed to pay the prosecutor's substantial costs.

SECTION 10 OF THE CSP ACT

1. The defendant seeks an order under s 10(1)(a) of the CSP Act directing that the charge be dismissed which should be read in context with subsection (3): 10 Dismissal of charges and conditional discharge of offender (1) Without proceeding to conviction, a court that finds a person guilty of an offence may make any one of the following orders: (a) an order directing that the relevant charge be dismissed, (b) an order discharging the person on condition that the person enter into a good behaviour bond for a term not exceeding 2 years, (c) an order discharging the person on condition that the person enter into an agreement to participate in an intervention program and to comply with any intervention plan arising out of the program. (3) In deciding whether to make an order referred to in subsection (1), the court is to have regard to the following factors: (a) the person's character, antecedents, age, health and mental condition, (b) the trivial nature of the offence, (c) the extenuating circumstances in which the offence was committed, (d) any other matter that the court thinks proper to consider.
2. Section 10 confers a wide ranging discretion. In Thorneloe v Filipowski [2001] NSWCCA 213, 52 NSWLR 60, Spigelman CJ (Hulme and Howie JJ agreeing) said, at [151]: The discretion conferred by s 10 is wide-ranging. There is no warrant for treating the scope and range of matters which it is "proper" for a sentencing judge to take into account in a narrow way. Nevertheless, it is a discretion which must be exercised judicially. The identification of relevant considerations turns on the scope and purpose of s 10. At [153] his Honour quoted from Gleeson CJ in R v Ingrassia (1997) 41 NSWLR 447 at 449 (in relation to a predecessor of s 10): The essence of s 556A is that it empowers a court which considers that a charge has been proved, in certain circumstances, to take certain steps 'without proceeding to conviction'. The legal and social consequences of being convicted of an offence often extend beyond any penalty imposed by a court. And his Honour said at [154]: Notwithstanding, the width of the ameliorative purpose of s 10, it does, in terms, direct attention to "the relevant charge". The scope and purpose of s 10 will, to some extent at least, vary from one offence to another.
3. In that case, where the defendant had pleaded guilty to marine pollution, the Court of Criminal Appeal overruled the primary judge and made an order under s 10. Spigelman CJ said at [184]: The circumstances, particularly the unblemished record of the Appellant and the small size of the discharge indicate that this is an appropriate case for the exercise of the discretion.
4. The principles relevant to the application of s 10 in the environmental context were considered by me in Blue Mountains City Council v Carlon [2008] NSWLEC 296. The defendant in that case had pleaded guilty to an offence against s 125(1) of the EPA Act and sought an order under s 10(1) of the CSP Act. The principles identified at [67]-[71] may be summarised as follows (omitting citations): 1. It is not necessary to the application of the section that the offence be characterised as trivial; all four factors identified in subs (3) of the section are intended to be disjunctive and non-exhaustive. For example, s 10(1) can be applied even where the offence is not trivial. 2. The dismissal of charges under s 10 reflects the willingness of the legislature to provide first offenders, in certain circumstances, a second chance to maintain a reputation of good character. 3. None of the criteria in s 10(3) are conclusive but all must be taken into account. 4. An offence against s 125(1) being an offence of strict liability, mens rea has no part to play, guilt being established by proof of the objective ingredients of the offence. Where the offence charged is one of strict liability, it is unusual for a defendant to receive the benefit of s 10, even if the defendant genuinely believed that the prohibited activity could be lawfully undertaken. The reasons for imposing a penalty, even where such a belief is held, have been stated as being: 1. to invoke the deterrent purpose of educating the offender and the community in the law's proscriptions so that the law will come to be known and obeyed; 2. to ensure that persons take proper steps to ascertain the lawfulness of their proposed conduct, and to enforce and give effect to the regime of planning controls imposed by the EPA Act.
5. The circumstances of every case are different but, by way of example, charges were dismissed under s 10 against offenders for unlawful development, notwithstanding that the offences were not trivial, in Minister Assisting the Minister for Infrastructure and Planning v Diacano [2004] NSWLEC 532, Holroyd City Council v El-Khouri [2008] NSWLEC 83 and Council of Camden v Runko [2006] NSWLEC 486, 147 LGERA 214. The fact that the defendant had agreed to pay the prosecutor's costs was a matter that was taken into account under s 10(3)(d) in Morrison v Cahill [2007] NSWIRComm 114 at [35].
6. Addressing the criteria in s 10(3): 1. The defendant is 64 years of age, is of very good character, has made valuable contributions to the community, has no prior convictions, is of good health and does not suffer from any mental condition. 2. The offence was inherently not trivial. On the other hand, on the agreed facts on which the prosecutor was prepared to base sentencing considerations, her involvement in the totality of the offences concerning construction of the stairs was relatively limited, being confined to the third and minor stage. 3. The offence was committed in extenuating circumstances. First, the defendant's husband had recently become seriously ill and she was left alone to manage the construction of a large dwelling house. Secondly, she relied on her architect to obtain the necessary Council approval for the stairs, the architect had assured her he would sort it out with Council, and she assumed from the fact that building work later proceeded that approval had been obtained. She did not know that the stairs had been constructed unlawfully or that her conduct was unlawful. 4. I think it proper to also consider the following circumstances. The character references indicate that the defendant's action in committing the offence was an aberration in the extenuating circumstances in which she found herself. She is remorseful. She is most unlikely to re-offend. The construction of the stairs has been effectively regularised by a building certificate and a plan of management, with which she has complied. I propose to order the defendant to pay the prosecutor's costs.
7. I conclude that she should be given a second chance to maintain her reputation of very good character and propose to make an order directing that the charge be dismissed.

Costs

1. Ordinarily the defendant would be ordered to pay the prosecutor's costs under s 257B of the Criminal Procedure Act 1986.
2. The defendant submits that each party should bear its own costs of these proceedings and the stop work order proceedings or that she should be ordered to pay only a minor part of the prosecutor's costs of these proceedings because: 1. she pleaded guilty to conduct not particularised by the prosecutor and not identified until Mr Dearlove gave evidence. The plea of guilty was then entered without delay; 2. she succeeded in having the stop work order charge dismissed, the prosecutor ought to have known that that charge was incompetent, and she would ordinarily be entitled to her costs of those proceedings.
3. The prosecutor seeks an order that the defendant pay its costs of these proceedings. The prosecutor concedes that in the separate stop work order proceedings an order for costs in favour of the defendant against the prosecutor is appropriate.
4. I consider that costs in the two different proceedings should be kept separate. I will make a separate order in the stop work order proceedings that the prosecutor pay the defendant's costs.
5. In the unlawful development proceedings the prosecutor filed affidavits and put forward unchallenged evidence at trial inculpating the defendant in giving an instruction to construct the entire stairs. Such evidence from Mr Dearlove was given at trial before the defendant changed her plea to guilty and retired from the trial. In order to bring the matter to a conclusion, the prosecutor was prepared to agree that sentencing should be confined to the basis that the defendant only gave an instruction in relation to the third stage of construction. The prosecution evidence concerning events prior to the instruction for the third stage of construction was generally reasonably required in any event. I take into account the defendant's submission above. However, the defendant had an extraordinary memory lapse concerning giving an instruction, except for which I think it likely that she would have pleaded guilty on that basis at an early stage of the proceedings. In those highly unusual circumstances, it is inappropriate to, in a sense, penalise the prosecutor in costs. In all the circumstances, I see no sufficient reason to depart from the usual order that the defendant pay the prosecutor's costs.

ORDERS

1. The orders of the Court are as follows: 1. The Court finds the defendant guilty of the offence charged but without proceeding to a conviction directs that the charge be dismissed pursuant to s 10(1) of the Crimes (Sentencing Procedure) Act 1999. 2. The defendant is to pay the prosecutor's costs of the proceedings as agreed or assessed. 3. The exhibits may be returned.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 23 December 2015