Nguyen v Canterbury City Council

Land and Environment Court (NSW)|2015-02-17|Before: Pain J

Solicitors: Shaw McDonald Lawyers (First and Second Appellant) Pikes & Verekars Lawyers (Respondent) File Number(s): 60697 of 2014; 60698 of 2014 Decision under appeal Court or tribunal: Burwood Local Court Date of Decision: 06 August 2014 Before: Magistrate Still File Number(s): 14/00196192; 14/00196193

EX TEMPORE Judgment

These proceedings consist of two appeals against the severity of two identical sentences imposed in the Local Court on 6 August 2014. The appeals arise from two penalty infringement notices (PINs) issued by Canterbury City Council (the Council) to Mr Van Tam Nguyen and Ms Thi Soui Nguyen (the appellants) for failing to comply with an order under s 121B of the Environment Planning and Assessment Act 1979 (EPA Act) giving rise to a breach of s 125 of that Act. The s 121B order required the removal of unlawful building works as specified in the order as the works were contrary to a development consent issued by the Council in 2008 to previous owners of the land. The appellants elected to have the penalty notices dealt with by the Local Court and court attendance notices were issued on 3 July 2014.
On 6 August 2014 the matter came before Burwood Local Court, where the appellants had earlier entered a plea of guilty pursuant to s 182 of the Criminal Procedure Act 1986 on 30 July 2014. That written plea of guilty noted that the appellants did not wish to attend when the matter came before the Local Court. The magistrate found that the breach was "objectively very serious", the appellants were entitled to a discount of 25% on sentence as they had sent a plea of guilty to the Court and fined each of the appellants $82,000 in respect of the charge of fail to comply with a development consent contrary to the order (s 121B(1)(15) EPA Act; s 125(1) EPA Act) against them.
An appeal to this Court from the Local Court is enabled by s 31(1) of the Crimes (Appeal and Review) Act 2001 (the Review Act). Under s 37(1) the appeal is a rehearing on the certified transcript of evidence before the Local Court. In this appeal I consider the matter afresh and it is not necessary that I find fault in the magistrate's reasoning (see Franks v Woollahra Municipal Council [2007] NSWLEC 461 at [24]). Under s 39(2) of the Review Act the Court may determine an appeal against sentence by setting aside or varying the sentence, or dismissing the appeal. Under s 49(2) the Court can exercise any function that the Local Court could have exercised in the original proceedings. The appellants do not challenge the facts relied on in the Local Court. New evidence can be relied on in the appeal if leave is given pursuant to s 37(2) of the Review Act. Leave to rely on new evidence has been sought by the appellants and given prior to this hearing.
The offence is one of strict liability and mens rea is not an element of the offence.
Section 126(1) prescribes the maximum penalty for an offence under the EPA Act as being 10,000 penalty units (being $1.1 million) and in respect of proceedings brought in the Local Court, the maximum penalty is 1,000 penalty units ($110,000,00). That jurisdictional limit acts as a ceiling and does not reduce penalties proportionately by reference to the jurisdictional limit: see Cameron v Eurobodalla Shire Council [2006] NSWLEC 47; (2006) 146 LGERA 349 at [36] and R v Doan [2000] NSWCCA 317; (2000) 50 NSWLR 115 at [35].
Evidence before the Local Court was contained in the court book before me (exhibit A). The same evidence was relied on for both matters. The statement of facts dated 6 August 2014 tendered before the Local Court, in identical terms for each appellant is as follows: 1. The defendant is charged with an offence pursuant to section 125 of the Act, by contravention of order number 15 in table to section 121B of the Act in that she failed to comply with an order served on him, requiring the removal of unauthorised building works within 28 days after the order issued on 17 September 2013 ('the order'). 2. The defendant is the registered proprietor of the land together with Mr Van Tam Nguyen ("the co-owner"). THE UNAUTHORISED WORKS 3. Complaints were made by neighbours of the subject land, on 26 March 2013 and 8 April 2013, that unauthorised works were being carried out on the Land together with offensive noise from the use of machinery. The complainants alleged that the units were blowing hot air into their homes as well as creating unacceptable noise impacts. 4. On 1 May 2013, Council's Building Compliance Officers Natasha Radvili and Con Kalantzis inspected the Land in the presence of the owners. The inspection revealed the following unauthorised works: (a) Removal of internal structural walls (b) Fitment of new enlarged windows and sliding doors (c) Major alteration to floor plan layout (d) Alteration of rumpus room to construct a new granny flat type separate dwelling on first floor (e) Alteration of roof space to create extra bedroom (f) Alter covered balcony area to be incorporated into the new granny flat on first floor (g) Removal of privacy screens 5. The unauthorised works required development consent pursuant to s 76A(1) of the Act and was not obtained. 6. A notice of intention to issue an order to remove the unauthorised works was given to the owners on 2 May 2013. 7. A penalty notice was issued 2 May 2013 in respect of the breach of s 76A(1) of the Act. 8. The owners, on 7 May 2013, requested a period of 4-5 weeks to allow for the preparation and lodgement of an application retrospectively approve the unauthorised works. 9. A further complaint was received on 10 May 2013 that unauthorised works were continuing. 10. Council's officers inspected the Land on 15 May and observed further unauthorised works. Council issued a stop work order on the same day. 11. A further notice of intention to issue an order to remove the further unauthorised works was given to the owners on 15 May 2013. 12. A further penalty notice for a breach of s 76A(1) was issued on 15 May 2013. 13. On 14 June 2013, a building certificate application (BC 60/2013) was received by the Council for retrospective approval of the unauthorised works. This application was refused on 20 August 2013. 14. A further delay of enforcement for a period of 4 weeks was requested by the owners on 5 September 2013 to respond to the reasons for the refusal of the building certificate application and make a further application. THE ORDER ISSUED 15. With no response to the refusal of the building certificate application, the Council issued an order in the terms of order 15 to the table of s 121B of the Act on 17 September 2013, as proposed on 2 May 2013. 16. The order dated 17 September 2013 was not complied with, and a penalty notice (the subject charge) for failure to comply with an order was issue to the owners. 17. To date, the unauthorised building works remain on the land.
The appellants tendered a number of exhibits. Exhibit A contains the primary judgment of the magistrate dated 6 August 2014 (tab 1), a written notice of pleading dated 30 July 2014 (tab B), the statement of facts including the s 121B order dated 17 September 2013 and the refusal of a building certificate (tab 3), the court attendance notices (tab 4), the penalty notices dated 4 March 2014 (tab 5), the affidavit of Ms Katalin Erdelyi dated 28 November 2011 (tab 6) and the Building Certificate for Application No BC-38/2014 approved on 27 November 2014 (tab 7). Exhibit B is three receipts from the Council for sums paid by the appellants for the development application and building construction applications and amendments to these referred to elsewhere in the evidence. Exhibit C is a development application dated 4 July 2014 made by the appellants and the 9 October 2014 amendment also sought. Exhibit D is their application for building certificate together with the 9 October 2014 amendment sought.
The appellants read the affidavit of Ms Katalin Erdelyi dated 28 November 2014. Ms Erdelyi is a graduate architect and certified practicing planner. Ms Erdelyi inspected the premises on 4 September 2014 for the purpose of comparing existing building works to the approved plans of DA 174/08 and advised the appellants of the required rectification work. On a second inspection of the premises, Ms Erdelyi observed, among other things, the removal of interior walls, installation of glass doors, the alteration of rumpus room to construct a new granny flat on the first floor and the removal of privacy screens. In the view of Ms Erdelyi, the installation of some of the works (for instance, the glass doors on the eastern elevation) was necessary for the amenity of the appellants. There is also limited overlooking to and from the neighbouring site. This is said to support the appellants' submission that there was minimal environmental harm. Ms Erdelyi states that while the appellants undertook unauthorised building works they have rectified the works. Annexed to Ms Erdelyi's affidavit are Ms Erdelyi's CV (A), the approved building certificate plans dated 9 October 2014 (B), the Structural Adequacy Certificate dated 13 July 2014 (C), photographs taken by Ms Erdelyi during her second inspection (D), the Notice of Determination of Development Application approved on 19 November 2014 (E) and the approved development application plans dated 9 October 2014 (F).
The Council accepts that the penalty imposed was severe and ought be reduced on appeal to some extent.
As described in the Notice of Pleading filed in the Local Court, the appellants are a husband (Van Tham Nguyen) and wife (Thi Soui Nguyen), a retired couple. It is not disputed that the appellants are owners of the subject site 23-25 Redman Street Campsie. The appellants purchased 23-25 Redman Street Campsie intending this to be their family home. The subject site is a corner site fronting Redman Street with the side street Gould Street. The streets are characterised by single detached dwellings and residential flat buildings. 23-25 Redman Street contains a brick two-storey residence with an attached single storey shop (last use was as a cafe) to the front of the building on the corner street alignment with Redman Street to the south and Gould Street to the west.

Purposes of sentencing

The offences charged are strict liability offences. It is not part of the elements of the offence that the appellants intended to commit the offence. Section 3A of the Crimes (Sentencing Procedure) Act 1999 (NSW) (CSP Act) identifies the purposes of sentencing. It states: The purposes for which a court may impose a sentence on an offender are as follows: (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.
Section 21A of the CSP Act identifies numerous matters which a court must take into account when sentencing including in relation to aggravating (s 21A(2)) and mitigating (s 21A(3)) factors.
In Bentley v BGP Properties Pty Ltd [2006] NSWLEC 34; (2006) 145 LGERA 234 at [163] and Gittany Constructions Pty Ltd v Sutherland Shire Council [2006] NSWLEC 242; (2006) 145 LGERA 189 at [110] relevant factors to determine the objective gravity of an offence were identified for offences under the EPA Act. The factors include the maximum penalty, the objective harmfulness of the defendant's actions, the reasons for the commission of the offence and the state of mind of the offender. Another relevant factor can be consideration of the statutory scheme in which the offence provision appears: see Blue Mountains City Council v Carlon [2008] NSWLEC 296 at [48], Mosman Municipal Council v Menai Excavations Pty Ltd [2002] NSWLEC 132; (2002) 122 LGERA 89 at [35].
An important consideration is upholding the statutory scheme for orderly planning in NSW under the EPA Act, reflected here in the power of councils to issue s 121B orders, as identified in numerous cases including Gittany, Menai and Burwood Council v Douehi [2013] NSWLEC 196; (2013) 200 LGERA 152.

Objective seriousness of offences

It is necessary to consider the objective seriousness of the offences. None of the aggravating factors referred to in s 21A of the CSP Act applies in that there is no evidence the offence was committed for any reason that would increase the objective seriousness of the offence. Most relevantly the environmental harm caused was minimal.
In this regard inter alia the appellants' counsel relies on the affidavit of Ms Erdelyi which attests to the numerous steps taken after the order was served on the appellants to regularise the unlawful work through the lodging of a building application and a development application in July 2014, both of which were amended in October 2014 and ultimately approved by the Council in November 2014. This resulted in work being done to comply with the order and/or the Council determining it would not take further action in relation to the work required by the order.
The Council submits this affidavit is of limited relevance as it relates to events after the offence. Nor does it explain the failure to comply with the s 121B order. I agree with the Council's submissions.
I accept the appellants' statements in the notice of pleading filed in the Local Court that they were unaware of the legal requirement to get development consent before they commenced the work. As the Council submitted that is not an explanation as to why no action to comply with the order was taken for approximately nine months after the s 121B order was served on 17 September 2013 with compliance required 28 days later. The lengthy history leading up to the issue of the order which included giving the appellants time to respond is set out at par 4-14 of the statement of facts tendered to the Local Court. According to the evidence before the Court the first response to complying with the s 121B order was the filing of a development application with the Council in July 2014. The appellants had by then received their respective PINs in March 2014 and chosen to court elect these in July 2014.
There is a wide spectrum of offending behaviours covered by the EPA Act which range from serious to far less serious. There was a substantial and unexplained delay in complying with the Council's order albeit in the context of the work required being largely internal at the premises and relatively limited in scope. The objective seriousness of this matter is higher than the lowest possible end of the range of objective seriousness, but remains at the lower end of objective seriousness.

Subjective factors

The CSP Act identifies a number of matters that may be considered in mitigation in s 21A(3). A number of matters in mitigation referred to by the appellants' counsel may be accepted. There is no evidence before the Court of the harm caused by the offence being substantial: s 21A(3)(a) CSP Act.
The appellants do not have any record of previous convictions: s 21A(3)(e) CSP Act.
It was submitted from the bar table that the appellants are of good character: s 21A(3)(f) CSP Act, which submission I am prepared to accept.
The Court can have confidence that the appellants are unlikely to re-offend: s 21A(3)(g) CSP Act. As the appellants' counsel submitted it is the first time they have been convicted. The appellants are a retired couple who were seeking to make premises they had purchased as a family home more comfortable. The premises have a distinguishable feature of being an attached single storey shop in an area characterised by single detached dwellings and residential flat buildings. The appellants mistakenly thought the premises were a dwelling capable of being converted into a more comfortable family home without the need for Council approval. The appellants are not builders or architects. There has been a considerable and protracted process of correspondence with the Council and revision and submission of a development application and building certificate application to the Council. The circumstances of offending have been an unfortunate and unforgettable learning experience for the appellants.
The appellants' counsel submitted that the remorse of the appellants is demonstrated by their acceptance of responsibility for their actions in pleading guilty: s 21A(3)(i) CSP Act. Further, the appellants have taken considerable steps to restore and regularise the unauthorised works, and acknowledged the damage caused by their actions in doing so: s 21A(3)(i) CSP Act. These submissions are less compelling in that the attempts made by the appellants after the event to regularise the work were efforts necessary in order to comply with the planning law, as they are required to do in any event. The Court generally has before it explicit expressions of remorse and looks to actions taken by a defendant (here the appellants) to positively demonstrate that remorse. There is no evidence of this kind to support these submissions.
I accept that early pleas of guilty were given by the appellants: s 21A(3)(k) CSP Act and a discount of 25% in accordance with R v Thompson; R v Houlton [2000] NSWCCA 309; (2000) 115 A Crim R 104 is warranted.
The appellants have provided assistance to regulatory authorities in the investigation and prosecution of the offences: s 21A(3)(m) CSP Act in that the statement of facts refers to a visit by council officers on 1 May 2013 where the appellants were present.
A number of these mitigating circumstances will be taken into account in the determination of penalty.

General deterrence important

I accept the Council's submission that general deterrence is important as the orderly system of planning and development depends on person taking steps to obey the law by ascertaining when development consent is required and then obtaining development consent before carrying out the development per Gittany referred to above. Where development consent has been issued persons must comply with that consent. A person who is ordered to rectify a matter under s 121B in circumstances where they have carried out development without consent or contrary to a consent must comply with an order.

Parity

The appellants' submissions identify in a table a number of cases said to be relevant to penalty such as Zhu v Auburn Council [2009] NSWLEC 97 where I imposed a penalty of $4,000. Several of these matters including Zhu concern carrying out work without development consent which are analogous offences but not precisely the same as the subject offences.
A principle of parity in sentencing is that like cases should receive like penalties. Each case must be determined on its own facts however. The offence of failure to comply with a s 121B order was considered in Zhou v Auburn City Council; Chen v Auburn City Council [2009] NSWLEC 75 and Bayley v Leichhardt Municipal Council [2005] NSWLEC 34; (2005) 138 LGERA 401. In Zhou Preston J imposed penalties totalling $30,000 each against a husband and wife where they jointly owned property in which they had carried out illegal works, and had not complied with orders to demolish those works. They obtained financial benefit from renting out the additional rooms. Various orders were issued in that case. The Court accepted that the criminal conduct was that of a single course of action, and an early guilty plea was taken into consideration and the totality principle applied. In Bayley, the defendant, as owner of premises, was ordered to carry out works so as to make the premises safe from fire hazards. Justice Bignold found that the defendant was at all material times in regular contact with the council, making representations in respect of fire safety requirements and was actively involved in seeking to comply with the requirements of the order throughout the dependency of the criminal proceedings. His Honour concluded that the defendant was delayed in complying with the order, but was alive to the responsibilities of that order and imposed a penalty of $15,000.
This matter has some similarity to Bayley. Given the financial benefits obtained in Zhou I consider that matter was more serious.

Totality principle

Given that the appellants are a married couple I accept their counsel's submission that the burden of any penalty imposed falls on them both collectively. That burden should be reduced in light of the totality principle as expressed in Zhou at [37] that where offences can be seen as part of the same course of conduct the principle allows a court to consider an aggregate sentence and adjust for what is just in the circumstances.

Penalty

The appropriate penalty in this matter is $15,000 for each appellant which I will reduce by $5,000 each to take account of the mitigating circumstances and the totality principle so that each appellant is fined $10,000.

Orders

The Court makes the following orders: 1. The appeal is upheld. 2. The decision of the Burwood Local Court on 6 August 2014 is varied. 3. The penalty imposed in matter no 14/00196192 is $10,000. 4. The penalty imposed in matter no 14/00196193 is $10,000.

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: 20 February 2015

(2005) 138 LGERA 401

(2006) 145 LGERA 234

(2013) 200 LGERA 152

(2006) 146 LGERA 349

(2006) 145 LGERA 189

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