Newcastle City Council v Reed Constructions Australia Pty Ltd

SOLICITORS: Heaney Richardson & Nemes

IN THE LAND AND Matter No. 50021 of 2000 ENVIRONMENT COURT Coram: Talbot J OF NEW SOUTH WALES Decision Date: 27 September, 2000

Newcastle City Council Prosecutor v Reed Constructions Australia Pty Ltd Defendant

The defendant is a building construction company which appears to answer the charge that it has committed an offence against the Environmental Planning and Assessment Act 1979 ("the EP&A Act") by carrying out development on Sunday 19 December 1999, at Mayfield, in breach of a condition of development consent, contrary to s 76A(1) and s 125(1) of the EP&A Act.

The subject land is known as 32 Industrial Drive Mayfield and is part of the land occupied by Club Phoenix.

In its Notice of Determination No 98/1648 granting conditional consent to carry out alterations and additions to the existing club premises the council imposed the following condition:- Construction and demolition of work noise that is audible beyond the premises being restricted to the following times:

_ Monday to Friday 7.00am to 6.00pm _ Saturday 8.00am to 1.00pm

No construction/demolition work noise is permitted on Sundays or public holidays.

19 December 1999 was a Sunday, when between 6.00 am and 6.30 am the defendant commenced works on the site.

Two residents lodged complaints about the noise at about 7.00 am, following which the council's Environment Protection Officer attended the site just after 8.00 am.

The officer observed a considerable amount of construction work being undertaken both inside and outside of the buildings. A large crane and a front end loader were operating.

After taking hand held measurements of the noise emanating from the premises at the entrance to the car park in William Street, the officer handed a Noise Abatement Direction to the defendant's Project Manager, Mr Arne Leonard.

In a conversation with the council officer, Mr Leonard explained that they were rushing to get things finished prior to Christmas. He agreed to stop the crane operation for the day after it had unloaded three more steel frames.

It is agreed between the parties that the noise from the 19 December works at the Club Phoenix site:- _ was clearly audible outside the Club Phoenix Site until at least 10am

_ awoke Ms Aimee Jenkins, the thirteen year old daughter of Ms Gail Jenkins of 22 William Street Mayfield and prevented Ms Jenkins from being able to go back to sleep

_ became unbearable for Gail Jenkins and Ms Aimee Jenkins, prompting them to leave their house at about 10am

The defendant was engaged as Principal Building Contractor and Project Manager for the demolition and construction works covered by the development consent.

The company has been incorporated for 13 years and has conducted business as a construction company for over 5 years. It is part of a group of companies called "The Reed Group" which has carried on business in the construction area for over 18 years.

The Court has been told that neither the defendant nor its related companies have any convictions for breaches of environmental planning laws.

There is a history of complaints from nearby residents which has generated correspondence between the defendant or its representatives and the council since work first commenced following the issue of a building approval in April 1999. It is probable that some of the correspondence from council was not passed on to the relevant persons responsible for the management of the site. That could be no more than an explanation, rather than a justification for the work to continue at times contrary to condition 6.10. The claim that the messages from council were not always received by the appropriate person in the organisation can hardly stand in the defendant's favour in the light of a response by Mr Leonard to the council's claim that the company was specifically directed not to commence an early pour on 16 August 1999 as follows:- LEONARD: Even if I had become aware of the faxes that you had sent to me I still needed the concrete pour to commence early due to the scale of the pour, the time constraints involved and the weather. There will be another large concrete pour in about two weeks time for the first floor of the car park.

The offence must be regarded as one wilfully breached by the company without there being any misunderstanding of the effect of the condition of consent.

Nevertheless, Mr Howard, appearing for the prosecutor, concedes that the seriousness of the offence should be regarded at the lower end of the scale. The maximum penalty prescribed for the offence pursuant to the EP&A Act is $110,000.

Although the prosecutor refers to the history of complaints, it is only to meet any submission that might come from the defendant that what occurred on 19 December 1999 was an isolated occurrence. There is no suggestion that the defendant should be punished beyond the ambit of the charge ( R v H (1980) 3 A Crim R 53 at 59).

The Court appreciates that although the offence may have caused aggravation to persons residing nearby, particularly as it took place on a Sunday, there is no longstanding environmental harm.

Mr Norrish QC understandably attempted to place the defendant's actions in the most favourable light by submitting that the breach occurred in the context of the defendant's anxiety to complete the works before Christmas, and that overall there would be a benefit to the residents of the area as a consequence of improved traffic arrangements following completion of the car park.

The Court does not accept the submission made by Mr Norrish that carrying out the work contrary to the conditions of development consent was ultimately for the benefit of the club and the local residents rather than any commercial imperative on the defendant as the building contractor.

The reason that only three people actually complained is not necessarily indicative of the extent of the impact. It does show, however, that three people were sufficiently disturbed by the noise to report the matter.

Mr Norrish submits that the defendant has demonstrated its contrition in the following ways:- (1) The prompt response to the entreaties of the council officer to cease work on 19 December 1999.

(2) A direct apology made to the Court by its Construction Manager.

(3) A general written apology by the club to neighbours in respect of inconvenience caused by noise throughout the project.

(4) The presence of the Chairman of Directors in Court throughout the hearing.

Very little assistance can be gleaned from the apology given by the club but the other matters demonstrate a responsive attitude by the company when faced with the breach and subsequent prosecution.

A plea of guilty was entered on the second return date of the summons. On the first return date the prosecutor asked for further time to file evidence. Once that was done the plea of guilty was entered promptly.

As the Court of Criminal Appeal said in the guideline judgment of R v Thomson; R v Houlton [2000] NSWCCA 309, the top of the range for a discount attributable to the utilitarian value of a plea of guilty is 25 per cent down to 10 per cent, with the top of the range to be restricted to pleas at the earliest possible opportunity. The defendant is entitled to the full utilitarian value of the plea of guilty in this instance in the order of 25 per cent.

The company has a proud record of achievement in the building industry without prior offence under this legislation and that will be taken into consideration by the Court.

As the Court of Criminal Appeal said in Axer Pty Ltd v Environment Protection Authority (NSWCCA, 22 November 1993, unreported), it is difficult to compare the penalty applied in one particular case with the penalty in another because of the wide divergence of facts and circumstances.

The prosecutor presented a schedule of recent penalties imposed by the Court which it says were in the circumstances arguably comparable to the present. For the reasons expressed by the Court of Criminal Appeal in Axer I have not gained a great deal of benefit by reference to those cases.

Having regard to the approach of the Court generally, the lowest end of the scale should be recognised at around $10,000.

Having regard to the whole of the circumstances in this case, the Court proposes to impose a penalty of $7,000.

The defendant has agreed to pay the prosecutor's costs.

The Court makes the following orders:- 1. The defendant is convicted.

2. The defendant is ordered to pay a penalty in the sum of $7,000.

3. The defendant is ordered to pay the prosecutor's costs in such sum as may be agreed or if there is no agreement as assessed in accordance with the regulation.

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