Moseley v Queanbeyan-Palerang Regional Council

Moseley v Queanbeyan-Palerang Regional Council - [2017] NSWLEC 52 - NSWLEC 2017 case summary — Zoe

[5]

Evidence in sentence hearing

The evidence tendered in the conviction hearing is identified in that judgment at [32] and was referred to in part in this sentence hearing.
A statement of the Council officer Mr Eichler dated 12 May 2016 is contained in the Court Book. Extracts follow: … 7. On Wednesday morning 28 April 2015 I attended the land… 8. … I said "Hi Ben [Appellant], I'm making inquiries into the land clearing and excavation going on at this property. What's going on here?" He said "Hi Roger, I'm getting ready to build my house and shed there on my property. I've excavated a shed site at the bottom where you are and a house site at the top of the hill, I've spoken to Haydon in your office. He told me all the work I am doing is permissible because it is zoned rural. I've also checked on the web and it says I'm ok to do what I'm doing". I said "Ok, I'm not too sure about this but what I would like to do if that's ok with you is to take a look around and get some photos, take these back to the office and let you know if this is all ok or not. Is that ok with you?" He said "Sure, no problem, help yourself". … I said "Ok, what I'll do is go around and get my photos; I shouldn't be any more than 10-15 minutes then I'll leave. But what I will ask is that you cease all work until I get back to you. By that I mean stop all excavation works until after I speak to Haydon and the other planners to confirm if this is exempt development. This might be a day or two. Is that ok?" He said "That's fine, I'll let my Dad know. … 17. I arranged with Mr Moseley to re-inspect the premises with himself and Belinda McManus, a planner from Palerang Council, on 29 May 2015. When we arrived at the land we met a person I now know as Benjamin Moseley. We had a discussion with Mr Moseley who then showed us some plans of his proposed dwelling for these premises. He said "I am in the process of getting all my papers together to submit a DA for my house but it will take a few weeks". We agreed to drive around the premises and inspect the premises with him. … 21. We drove to the house site and I observed that the excavations were greater than 600mm deep. Again I said, "Ben, this looks like it is deeper than 600mm, just like the shed site. Did you seek approval to excavate deeper than 600mm?" 22. He said "No, but I'm sure under the SEPP I don't need approval anyway". 29. We completed the inspection and drove back down to the bottom of the land, near the entrance I said, "Ben, please don't do any more works on the land except to install the erosion and sediment controls which I pointed out to you. We will make further inquiries about the works you have done and be in touch. Do you understand?" 30. Mr Moseley said "I really don't agree because the works are exempt development, it's zoned rural and according to what I have researched it's all exempt". … 36. As a result of the two inspections it was apparent to me that development upon the premises had continued between the two inspections including the construction of the "house dam" at the top of the development, the further development of the land just below the house site, and new tracks around the house site. In accordance with Palerang Council's Enforcement Policy I drafted a Notice of Proposed Order under the EP&A Act and a Notice of Preventative Action under the POEO Act, and on 11 June 2015 I posted these documents, along with PIN 3081790920, to Mr Moseley. Copies of these documents are attached at annexure "F".

[6]

First affidavit of Appellant

The Appellant sought leave to rely on his affidavit sworn 8 November 2016 which was granted. In his affidavit the Appellant stated that he is currently employed as a senior project officer in a department of the Commonwealth Government. His de facto partner is employed as a teacher. The couple have four children who live at their rented home and who attend a fee-paying school. His partner is the owner of the land in Royalla where the offence occurred which is mortgaged to a bank. In addition to school fees and mortgage repayments, the Appellant and his partner have expenses associated with their several vehicles and general household expenses. The Appellant is pursuing a postgraduate degree for which he pays university fees. Their collective expenses are high in relation to their income and the couple is currently under financial pressure.
The property at Royalla was purchased in March 2015. The property was chosen as it was zoned RU1 and provided an opportunity for them to operate a business selling produce grown on the land, such as herbs, preserves, sauces and baked goods. The Appellant and his partner also intend to run alpacas on the land in the future. The Appellant and his partner registered a company in April 2015 for the purpose of operating the business. The Appellant stated that the development application for a dwelling house to be constructed on the land was approved by the Council on 29 February 2016.
The Appellant attached to the affidavit a sediment control and erosion plan dated 17 July 2015. A bushfire assessment report dated 1 August 2015 was also annexed to the affidavit. The Appellant attested that over $20,000 had been spent on the cost of the reports and implementation of the plan.
The Appellant stated that he was late to the Local Court sentence hearing on 21 June 2016 as he had recorded the wrong date in his diary. He realised his mistake when he contacted his former solicitor to confirm the date. When he arrived before 10:30 am he was advised that the matter had been dealt with in his absence.

[16]

No intentional act before first visit of Council officer

The application of the exempt and complying development provisions under the SEPP and LEP are not necessarily straightforward. I set out the detailed provisions of these instruments in the conviction appeal judgment at [12]-[15]. The lengthy judgment identifies at [41]-[90] the application of these provisions to the six particulars relevant to the offence.
Considering firstly whether the Council has established that the Appellant acted intentionally, meaning with awareness that he was breaching the EPA Act, before the first visit of a Council officer, the statement of Mr Eichler adduced at the Local Court hearing records the Appellant's reference to the conversation with Mr Murdoch. The Appellant submits that the Council has the onus of proving that he did not get approval from Mr Murdoch over the telephone in order for the Court to make a finding of intentional conduct.
The High Court set out the principles concerning the exercise of fact finding in sentencing proceedings in Weininger v The Queen (2003) 212 CLR 629; [2003] HCA 14. A sentencing judge may not take into account facts adverse to an offender unless those facts have been established beyond reasonable doubt by the prosecution. Facts that are in favour of an offender need be proved on the balance of probabilities, see Weininger at [18] citing R v Olbrich (1999) 199 CLR 270; [1999] HCA 54. The High Court in Weininger stated that it can be difficult, if not impossible, for a sentencing judge to make findings one way or another about all matters relevant to the circumstances describing how an offender came to commit the offence, at [19]-[20].
In this case, although I accept the Council's submission that it is highly unlikely that a Council officer would have suggested the works carried out by the Appellant the subject of the charge were exempt or complying development this does not satisfy the standard required of the Council to establish intentional conduct of the Appellant. I am not satisfied, as I am required to be according to Weininger at [18], that the Council has proved this fact beyond reasonable doubt in relation to the work undertaken before the first visit of Mr Eichler on 28 April 2015.
Indeed the statements of the Appellant recorded by Mr Eichler suggest that he did attempt to make inquiries about the lawfulness of the work through telephoning Mr Murdoch and searching online, suggesting he was not intentionally acting in breach of the EPA Act up to that point.

[18]

Appellant has not discharged onus of proof on balance of probabilities that Council approved actions

The Appellant must establish matters favourable to him on the balance of probabilities. I accept that the Appellant telephoned Mr Murdoch and spoke to him about work intended to be undertaken on the land. I also accept that the Appellant undertook online research about exempt and complying development. I do not know precisely what the Appellant said to Mr Murdoch and vice versa nor what precise research he undertook.
Mr Eichler's record of the first visit to the land including the Appellant's statement concerning the conversation with Mr Murdoch does not support the Appellant counsel's submission that the Appellant was told he could undertake the work that was the subject of the charge in the rural zone. In the absence of the precise terms of the conversation, whether Mr Murdoch understood the precise works which the Appellant intended to undertake without development consent are unknown.
The excavation and fill works the subject of the charge are specified above in par 3. I have already stated above in par 28 that the exempt and complying provisions of the SEPP and LEP are complicated to apply. As the Council submitted, it is improbable that a Council officer would have identified over the telephone that all aspects of the work undertaken by the Appellant were exempt or complying development. For example, the work undertaken in relation to the creek crossing was substantial involving several metres of fill being placed in the creek bed. That work was conducted well within the 40 m buffer within which excavation and fill work should not be undertaken without approval (Particular D).
I am not satisfied that the Appellant can use his conversation with Mr Murdoch to the extent this is known on the evidence to exculpate his actions. The detail of what was said about the scope of works intended to be undertaken by the Appellant during that conversation is unknown. The Appellant could have included the details of the conversation in an affidavit but has not. As the precise content of this telephone conversation is unknown it does not support the Applicant's submission that he believed he could do all the work he undertook as exempt and complying development. Adopting Weininger at [19]-[20] I am not able to draw any conclusion about the contents of the conversation beyond accepting that a conversation occurred with Mr Murdoch and the Appellant about work on the land. Accordingly, the Appellant has not established that a Council officer suggested that the work he undertook the subject of the charge was acceptable as exempt and complying development.

[28]

Application of s 10(1) Crimes (Sentencing Procedure) Act refused

The Appellant submits that the Court should make an order under s 10(1)(b) of the CSP Act. Section 10 states: 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. (2) An order referred to in subsection (1) (b) may be made if the court is satisfied: (a) that it is inexpedient to inflict any punishment (other than nominal punishment) on the person, or (b) that it is expedient to release the person on a good behaviour bond. … (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.
Reliance was placed on the Appellant's good character, no prior offences, the application and approval of the development consent for the house and compliance with the sediment and control plan, his mental difficulties as identified in his second affidavit and his limited financial means. Extenuating circumstances are that a Council officer stated to him that the Appellant could undertake the work that was the subject of the charge as the land was zoned rural.
The Council submits that it would not be appropriate to make a s 10 order in this matter. It notes that s 10(1)(a) is rarely applied for strict liability offences given the deterrent purpose of punishment for such offences and the need to give effect to the statutory system of planning controls, Ku-ring-gai Council v Steve Nolan Constructions Pty Ltd [2012] NSWLEC 258 at [71] (the order sought by the Appellant is under s 10(1)(b)). The offence was not trivial and had the potential to cause actual harm to the environment including waterways. The Appellant has shown no contrition or remorse and there are no extenuating circumstances that would mitigate in favour of a s 10 order. The Appellant's personal circumstances and mental difficulties are outweighed by the fact that the offence was carried out intentionally, within the full control of the Appellant and that there was foreseeable risk of harm to the environment.
The factors in s 10(3) are disjunctive and non-exhaustive per R v Paris [2001] NSWCCA 83 at [42]. The Court can exercise the power granted by s 10 where there has been an appeal against conviction, Advanced Arbor Service Pty Ltd v Strathfield Municipal Council [2006] NSWLEC 485 at [18], [20]. An appeal against conviction was filed in the present matter therefore I am able to exercise this power under s 10.
I largely accept the Council's submissions as set out in par 52 above on why I should not exercise my discretion to make a s 10 order noting that I have found that the Appellant acted imprudently following the first visit of a Council officer to the land. There are no extenuating circumstances in this case based on my finding above in par 39 that the Appellant has not proved on the balance of probabilities that in the telephone conversation he had with Mr Murdoch all of the work that he intended to undertake (the subject of the charge) was identified to that officer. The offence is not trivial, the circumstances were under the full control of the Appellant and there was an obvious risk of harm to the environment. I will take into account the lack of capacity to pay a fine in determining penalty, as I identify below. That is not a matter so relevant to the application of s 10(1) in my view. That the Appellant complied with the EPA Act in obtaining development consent for the proposed house is simply complying with the law in NSW. Similar observations can be made in relation to obtaining the sediment and erosion control plan. I decline to make an order under s 10(1)(b).

At a glance

Court

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Judgment (34 paragraphs)

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Cases Cited (37)

Cited By (9)