Nasser v Hurstville City Council

Keir & Anor v Sutherland Shire Council [2004] NSWLEC 754; Pittwater Council v Walters [2004] NSWLEC 75; R v Thomson (2000) 49 NSWLR 383; CASES CITED: Ristevski v Hurstville City Council [2003] NSWLEC 409; Warringah Shire Council v Sahade [2004] NSWLEC 333; Waverley Council v Boris Meck [2005] NSWLEC 655; Woollahra Municipal Council v Samadi [2004] NSWLEC 564

APPELLANT Mr R O'Gorman-Hughes SOLICITORS N/A LEGAL REPRESENTATIVES: RESPONDENT Mr P Rigg, solicitor SOLICITORS Deacons

THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

JUDGMENT Jagot J: 1 This is an appeal from the decision of a Magistrate in the Local Court at Kogarah on 31 May 2007. The appellant, Samuel Nasser, was convicted of carrying out development without development consent on land at 68 Llewellyn St, Oatley (the property) on or about 3 July 2006 in contravention of ss 76A and 125(1) of the Environmental Planning and Assessment Act 1979 (the EPA Act). He was ordered to pay a fine of $35,000, professional costs of $8,000 and court costs of $67. The appeal is against the severity of the sentence in accordance with s 31(1) of the Crimes (Appeal and Review) Act 2001.

2 The appeal is to be by way of rehearing on the basis of certified transcripts of evidence given in the original Local Court proceedings (s 37(1) of the Crimes (Appeal and Review) Act). Under s 37(2) the appellant was granted leave to rely on some further evidence with respect to alleged financial detriment said to constitute extra-curial punishment relevant to sentence.

3 The appellant pleaded guilty to the charge that he carried out development without consent in breach of s 76A(1) of the EPA Act involving alterations to an existing boat shed, construction of a timber deck and stairs, and a balustrade to the unit 1 roof terrace.

4 The facts in brief are as follows. The appellant obtained development consent in 2000 to construct dual occupancy housing on the property. His original intention was to build a home for his family and his parents. When the Council inspected the property in 2006 after the development was substantially completed it observed some unauthorised building works. The alterations to the boat shed included internal works (a shower, kitchen, toilet and air conditioning) and external works (sliding glass doors, a sewer pump out system and a rooftop balustrade). The timber deck has an area of about 14 sqm and is at the rear of the northern side dwelling. The stairs are about 10 treads leading to the rear yard from the corner of the northern side dwelling. The appellant's wife lodged a building certificate application under s 149B of the EPA Act. A Council officer reported to the Council about the works on 6 September 2006 to the effect that the deck and stairs were not of concern but the provision of the toilet, kitchen and glass sliding door meant that the boat shed was capable of use as a separate domicile. The Council resolved to prosecute the appellant and not to deal with any "retrospective approval" until the prosecution was complete. In context, this can only be understood as a refusal to deal with the building certificate application at that time. On 5 November 2006 the appellant appealed against the deemed refusal of the building certificate application. The appellant's lawyer also made representations to the Council that its resolution not to deal with the application was improper having regard to s 149D of the EPA Act.

5 Section 149D(1) is as follows: (1) The council must issue a building certificate if it appears that: (a) there is no matter discernible by the exercise of reasonable care and skill that would entitle the council, under this Act or the Local Government Act 1993 : (i) to order the building to be demolished, altered, added to or rebuilt, or (ii) to take proceedings for an order or injunction requiring the building to be demolished, altered, added to or rebuilt, or (iii) to take proceedings in relation to any encroachment by the building onto land vested in or under the control of the council, or (b) there is such a matter but, in the circumstances, the council does not propose to make any such order or take any such proceedings.

6 A Council officer reiterated her view in a later memorandum that the deck and stairs were not of concern but that the Council might be able to "argue" the boat shed differently. On 15 December 2006, the Council served on the appellant a notice of intention to issue an order under s 121B of the EPA Act. This order concerned the boat shed only and required the kitchen, water closet, shower and air conditioning unit to be removed and the double glass sliding doors to be replaced with double sliding timber doors. The appellant's lawyer made representations that no order should be issued but on 20 February 2007 the Council issued the order in the same terms as the notice of intention.

7 The appeal against the deemed refusal of the building certificate application was heard and determined on 1 March 2007. The Court upheld the appeal but required the balustrade to comply with the building Code of Australia, the installation of a privacy screen to the stairs and the removal of the double glass sliding doors and their replacement with double sliding timber doors.

8 The appellant was a Councillor of Hurstville City Council for four years between 1999 and 2003.

9 It follows from the appellant's plea and the facts recorded above that I am satisfied beyond reasonable doubt that the appellant committed the offence charged.

10 The appellant submitted that the fine of $35,000 was too high having regard to the following factors: (i) the minor nature of the works and absence of significant environmental impact, (ii) the appellant's co-operation with the Council and attempt to regularise the breach by lodging the building certificate application, (iii) the appellant not being a builder or developer, (iv) the appellant having no prior convictions and being of good character, (v) the early guilty plea, (vi) the financial detriment the appellant suffered by the Council's improper refusal to deal with the building certificate application, being extra-curial punishment of some significance, (vii) the amount of the penalty having regard to the range disclosed in other decisions, particularly Keir & Anor v Sutherland Shire Council [2004] NSWLEC 754. The appellant's submissions disputed the significance of the appellant's status as a former Councillor on the basis that the appellant could not be expected to have any greater knowledge of planning requirements than other members of the community. This was particularly so given the minor nature of the works which, if not so close to the waterway, may well have qualified as exempt development or close thereto.

11 The Council disputed the significance of five of the appellant's submissions. First, the Council noted that the works to the boat shed were in zone 7 (Waterways) close to the water and thus subject to particular aesthetic considerations. The works were not minor and had changed the external appearance and internal functioning of the boat shed, as found in the building certificate appeal. Secondly, the Council submitted that the appellant's conduct did not disclose any real co-operation with the Council. Thirdly, the Council accepted that the appellant was not a builder but said he was a former Councillor of the Hurstville area who must be inferred to have known that consent was required to carry out the works, also evidenced by the fact that the appellant had obtained development consent for the dual occupancy development. Fourthly, the Council rejected the idea that the appellant had been subject to any extra-curial punishment by the Council's resolution and the fact that the appellant could not obtain a building certificate until the appeal was upheld. The Council characterised this as a mere consequence of the fact that the appellant had elected to carry out unauthorised building works. Finally, the Council pointed to various decisions referred to by the Magistrate supporting the fine of $35,000 as one that reasonably reflected the objective seriousness of the offence and subjective circumstances of the appellant.

12 My conclusions about each of these disputed matters are set out below.

13 I am satisfied that the nature, extent and character of the unlawful works was not such as to make the offence merely trivial or technical. In that sense, none of the works should be described as minor. Nor, however, should the extent of the works be characterised as more extensive and serious than objectively warranted. The works were either readily capable of minor additions to ensure that they could remain in place (such as the deck and stairs), were internal (such as the internal alterations to the boat shed) or could be rectified (such as the replacing of the glass doors with timber doors on the boat shed). The Council's concerns about the use of the boat shed were not a result of any irremediable change to the structure or its exterior and, if necessary, could have been rectified without difficulty. Reasonably assessed, the unauthorised works fall within the lower end of the scale of seriousness. The waterfront location does not alter this assessment.

14 I am also satisfied that the appellant co operated with the Council with respect to the unauthorised works as evidenced by the ease with which the Council inspected the property, the appellant's frankness about responsibility for the works, the prompt lodgement of the building certificate application to regularise the situation and the entry of the guilty plea at the first reasonable opportunity.

15 The appellant is not a builder or developer and that is a material point of distinction from certain other sentence matters referred to by the Council. I do not accept the appellant's submission that his status as a former Councillor of the Council from 1999 to 2003 should be given little, if any, weight. A Councillor or former Councillor should reasonably be expected to understand the importance of the planning laws and regulations that councils administer in New South Wales. This is a factor relevant to the appellant's circumstances but does not alter the objective seriousness of the offence.

16 As the appellant submitted, s 149D of the EPA Act does not contemplate that a council might refuse to deal with a building certificate application because of a decision to prosecute the person who is alleged to have carried out the unlawful building works. The scheme for the issue of building certificates involves a separate regime that must be administered consistently with the provisions of the EPA Act, s 149D in particular. Accordingly, a decision to prosecute a person who is alleged to have carried out unlawful building works is not a valid reason to refuse to deal with a building certificate application. The Council's resolution not to deal with the building certificate application was therefore misconceived. Be that as it may, by 15 December 2006 the Council had served on the appellant a notice of intention to issue an order under s 121B of the EPA Act with respect to some of the works to the boat shed. A decision to issue an order is a matter relevant to a council's functions under s 149D.

17 The appellant submitted that the notice of intention to issue the order was tainted by the resolution not to deal with the building certificate application and that, but for the resolution, the Council resolution would have been in accordance with the recommendation of the Council officer at that time. I do not accept that submission. The Council officer had identified issues of concern with the work to the boat shed before the Council made the resolution. Those concerns were largely reflected in the later notice of intention under s 121B, the order in fact served by the Council and the position the Council adopted in the appeal against its deemed refusal of the building certificate. In other words, the Council's conduct at all times was consistent with the fact that it had concerns about the works to the boat shed sufficient to warrant the issuing of the order under s 121B. That circumstance constituted a proper basis for the Council to decline to issue the building certificate, irrespective of its resolution in September 2006.

18 Accordingly, from at least 15 December 2006 onwards the Council's original misconception was immaterial. It follows that there was no delay by the Council in issuing the building certificate. The Council was entitled not to issue the certificate just as the appellant was entitled to lodge the appeal. The Court resolved the appeal and directed the Council to issue the building certificate subject, however, to conditions. One of those conditions (removal of the double glass sliding doors and full length windows from the front of the boat shed and replacement with double sliding timber boat doors) accorded with the requirements of the order under s 121B. For these reasons, the financial detriment the appellant suffered by reason of the Council's refusal to issue the building certificate should not be characterised as an extra-curial punishment meted out by others. The unlawful building works the appellant carried out involved an inherent risk that the Council might have some legitimate substantive concern about those works sufficient to warrant refusal to issue a building certificate. The fact that the appellant had to exercise the right of appeal to obtain a building certificate (albeit on conditions that vindicated part of the Council's concerns) and suffered financially as a result was a consequence of the unlawful works, not of any extra-curial punishment meted out by the Council. That being said the serious financial consequences the appellant suffered by reason of his conduct is a relevant part of the factual matrix. The appellant enjoyed no ultimate advantage from the illegal building works and significant disadvantage. This disadvantage was evidenced in the appellant's statement to the Local Court, supplemented by a further affidavit read as fresh evidence in the appeal pursuant to leave.

19 Consistency in sentencing is an important principle. As the Council submitted, however, it may be difficult to apply penalties for other offences to the instant case because of different facts.

20 The appellant placed significant weight on Keir. Keir involved two defendants, one a director of a construction company and the other the company itself. The offences involved unlawful building works to a building intended to be Mr Keir's family home. Mr Keir carried on business as a builder through the company. The unlawful works were both external and internal, including converting a storage room to habitable floor space. Some of the external works gave rise to obvious privacy concerns for neighbours but were able to be rectified. The Magistrate imposed a total penalty of $50,000. On appeal, the amount was reduced to a total of $35,000. In imposing this penalty the Court emphasised that builders and other persons licensed to carry on building activities have a particular responsibility to ensure these activities are carried out in compliance with the law. It also noted that the defendant acted to obtain an advantage where he knew the works would adversely impact on his neighbours. The appellant observed that the facts in Keir were objectively more serious than those in the present case, particularly having regard to the defendant's business as a builder.

21 The Council emphasised three decisions relied on by the Magistrate, Woollahra Municipal Council v Samadi [2004] NSWLEC 564, Waverley Council v Boris Meck [2005] NSWLEC 655 and Ristevski v Hurstville City Council [2003] NSWLEC 409, and noted that the Magistrate described the offence in this case as one involving slightly greater culpability than the defendant in Samadi (in which a penalty of $30,000 was imposed). The appellant submitted that each case involved a more serious offence than the present.

22 The unauthorised building works in Samadi are not dissimilar to those in the present case (and, if anything, perhaps slightly more extensive), including the fact that some impacts associated with the works required minor ameliorative measures. The defendant was a director of several companies, some of which undertook property development activities. The Court imposed a penalty of $30,000. In imposing this penalty the Court had particular regard to two other decisions (Warringah Shire Council v Sahade [2004] NSWLEC 333 and Pittwater Council v Walters [2004] NSWLEC 75). Sahade involved commercial not residential premises. The defendant was in the business of running commercial premises and had substantial experience in relation to development. The unlawful works were relatively extensive. The Court imposed a penalty of $16,000. Walters also involved commercial premises. The unlawful works did not alter the overall building envelope but did change the roof and interior. The Court found that from time to time the defendant was unco-operative with the Council and "even obstinate" (at [11]) in refusing to allow inspections, thus forcing the Council to apply for a search warrant (although the warrant was not ultimately required to obtain access). The Court also found that "the defendant's obstructive course of action was dictated by a financial expediency to have the work completed in a manner and according to the program that he saw as being necessary" (at [13]). The Court imposed a penalty of $35,000. The facts in Walter, in particular, are markedly more serious than the present case.

23 Meck involved unlawful building works for a family home. The defendant excavated into a hillside area to create a substantial area of additional habitable floor space. The defendant was engaged in the development industry. There was some basis for the defendant's view that the excavation was appropriate in the particular circumstances of the site, but that view was in error. The Court imposed a penalty of $20,000.

24 Ristevski is more difficult to compare as the unlawful works involved a change to the environmental quality of the site by reason of the injuring of trees, as well as the construction of retaining walls. The defendant was an owner builder. The Court reduced the penalty from $45,000 to $25,000 on appeal.

25 The maximum penalty of $1.1 million for breach of s 76A(1) of the EPA Act covers a potentially vast range of offences. The present case falls very much towards the lower end of the scale of seriousness. When constructed, the development was intended to be the family home of the appellant and his parents. Although I infer that the appellant, as a former Councillor, knew or should have known of the requirement to ensure compliance with rather than departure from the development consent the appellant is not a builder and not in the development industry. The works did not permanently or irremediably alter any part of the property. With minor steps being taken the works had no material environmental impact.

26 Sanction by way of mere nominal fines will not deter others or the offender from similar unlawful conduct of carrying out development without development consent. Nevertheless, the penalty imposed on the individual offender must not be disproportionate to the circumstances of the particular case, particularly the objective seriousness of the offence.

27 Other factors are also relevant in this case. The appellant promptly took steps to regularise the breaches. He was co-operative with the Council. Rather than obtaining any permanent advantage by reason of his unlawful conduct, he suffered material financial detriment (albeit brought about by his own actions rather than as punishment meted out by others). He has no prior convictions and is a person of good character as evidenced by his work in and for the community in the past. He entered a plea of guilty at the first opportunity and should have the benefit of the full discount of 25% on that account (R v Thomson (2000) 49 NSWLR 383). He will be liable for the Council's costs of the proceedings before the Local Court in the sum of $8,000. Further, I generally accept the appellant's submissions about the pattern of sentencing shown in the cases referred to above.

28 Having regard to all of these relevant matters in the context of the objects of sentence as set out in s 3A of the Crimes (Sentencing Procedure) Act 1999 I am satisfied that, with the benefit of the discount for the early entry of the guilty plea, a fine of $22,500 should be imposed on the appellant. The consequence is that the appeal must be upheld.

29 Consistent with the submissions made by both parties, I am satisfied that each party should pay its own costs of the appeal. Although the appellant has succeeded in the appeal, the proceedings were necessary by reason only of the appellant's unlawful building works. I also do not accept the appellant's submission that there should be any costs order in its favour by reason of the Council's refusal to issue the building certificate for the reasons given above.

30 The orders of the Court are: (1) The appeal is upheld. (2) The order made in the proceedings by the Local Court at Kogarah on 31 May 2007 as to penalty is quashed. (3) The appellant is fined the sum of $22,500. (4) Each party is to pay its own costs of the appeal.

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