Sharma v Liverpool City Council

Land and Environment Court (NSW)|2022-02-15|Before: Robson J

Judgment

By summons filed 21 April 2021, the appellant, Sudesh Prasad Sharma, appeals pursuant to s 31(1) of the Crimes (Appeal and Review) Act 2001 (NSW) ('Appeal Act') against a decision of the Local Court at Liverpool ('Local Court') made on 24 March 2021 to convict and fine Mr Sharma in relation to an environmental offence under s 9.37(1) of the Environmental Planning and Assessment Act 1979 (NSW) ('EPA Act').
The charge relates to non-compliance with a development control order dated 6 September 2019 ('Order') issued by the respondent, Liverpool City Council ('Council'), to Mr Sharma in respect of Lot 17 in DP 15142 known as 8 Webster Road, Lurnea ('the property').
The appeal proceeded to hearing before me on 15 February 2022. Mr Sharma appeared without legal representation (as he had done before the Local Court) and Ms N Hammond of counsel, appeared for Council. In its written submissions filed 11 February 2022, Council informed the Court that it "concedes the appeal and consents to an order that the conviction be set aside".
The Court has received and considered detailed evidence and written and oral submissions both from Mr Sharma and Council. I consider, not without some reservation, that it is appropriate to make the orders which the parties have asked to be made, and that there be no order as to costs. My reasons follow.

Proceedings in the Local Court

The hearing in the Local Court proceeded before Magistrate Spence over one day on 24 March 2021. Brenda Bourke, Council's in-house lawyer, appeared for Council and Mr Sharma appeared without legal representation.
Council confined its case to Mr Sharma's non-compliance with three actions within the Order (at [10] above) being the requirement for Mr Sharma, first, to stop using the detached garage (variously also referred to as "shed") for habitable purposes, namely a dwelling; second, to restore the shed to the condition in which it was prior to the unauthorised works being undertaken, namely by removing the internal fit-out of the shed; and third, to demolish or remove the carport measuring approximately 147sqm.
Before the Local Court, Council contended that Mr Sharma transgressed building permit 1156/64 dated 30 November 1964 issued by the City of Liverpool which approved "a fibro dwelling" (being the shed/garage). The building approval contains a condition for the "existing building not to be used for human habitation". Council contended that, contrary to that approval, the garage had evidently been used and fitted out for human habitation for some time.
Mr Sharma submitted that because the Order was issued under the EPA Act, which post-dated the building permit issued in 1964, it had no effect, and, further, that the structure had been fitted out for habitable purposes at the time he purchased the property in 2007 or 2008. Council disagreed with Mr Sharma's submission and contended that the offence was the failure to comply with the Order regardless of the time the shed was built.
Mr Sharma also submitted that attempts had been made to lodge development applications with Council to authorise residential use and that those attempts had been abandoned on informal advice from Council officers that the use was in compliance with the 1964 building permit. Mr Sharma stated that he otherwise intended to convert the "granny flat" into storage.
Correspondence tendered during the Local Court hearing indicated that Council had allowed Mr Sharma several extensions of time to comply with the Order or to lodge development applications to regularise the use of the garage and that Mr Sharma did not submit any development applications concerning the garage. Council further found the assurances that the granny flat will be converted into storage to be unsatisfactory, noting that to do so would require compliance with the Order.
At completion of the Local Court hearing, the Magistrate, in a considered judgment delivered ex tempore, found against Mr Sharma. His Honour dealt with each of the matters raised by Mr Sharma. On the matter of the validity of the Order, the Magistrate reasoned that Parliament is at liberty to enact laws that impact pre-existing situations, that neither the EPA Act nor Council had declared building permits predating 1979 null and void, and Council was authorised to enforce regulations concerning local building requirements.
On the matter of the carport, Mr Sharma sought to rely on invoices paid to a company, Homeclad Home Improvements (apparently now owned by HMR Supplies Pty Ltd) ('Homeclad'), as evidence that he had engaged Homeclad to build and obtain all necessary approvals for the carport. Mr Sharma also submitted that he had commenced action with NSW Fair Trading and NSW Civil and Administrative Tribunal ('NCAT') regarding Homeclad's alleged failure to obtain any requisite approval. Although the Magistrate considered this to be an irrelevant matter, he found that Homeclad had not represented to Mr Sharma that the carport was approved. Mr Sharma submitted that because he had assumed Homeclad had sought Council approval, he had not submitted a development application or building information certificate in relation to the carport. The Magistrate found Mr Sharma guilty of not complying with the Order to demolish the carport.
Relevant to the present appeal, Mr Sharma submitted to the Magistrate that he had made a request to Council prior to the hearing for the opportunity to cross-examine Council officers which was not fulfilled. Council submitted that no such request had been received (although, as considered later in this judgment, it later became known that Mr Sharma's request was emailed a month before the hearing to Mr Sertlioglu, who at that time was no longer employed by Council). Despite raising this concern, the transcript shows that Mr Sharma was content for the hearing before the Magistrate to proceed by the tender of a bundle of documents without witnesses. It was based upon those documents, and the submissions made during hearing, that the Magistrate found the offence proven.
On the matter of the penalty and costs, Council submitted that the Magistrate should exercise discretion to increase the penalty from $3,000 (provided in the PIN) by virtue of Mr Sharma's continuing non-compliance with the Order and sought professional costs of $300. The Magistrate considered Mr Sharma's request for a more lenient penalty because of his employment position and a medical condition. As noted above, the Magistrate convicted and fined Mr Sharma $4,000 plus professional costs of $200.

Proceedings in this Court

The parties filed a number of notices of motion relating to further evidence and hearing dates. As they provide some background to the present appeal, I summarise those motions and outcomes as follows: 1. Mr Sharma's notice of motion dated 2 July 2021 seeking leave to rely on further evidence was heard by Pain J on 9 July 2021, with her Honour granting leave to rely on "additional documents". The motion was later attended to by Moore J on 30 July 2021, with his Honour revoking Pain J's order of 9 July 2021 and replacing it with an order that explicitly specified the additional documents for which leave was granted. 2. Council's notice of motion dated 6 July 2021 seeking leave to rely on fresh evidence (the affidavits of Natasha Khamas and Brenda Bourke each dated 6 July 2021), and to amend the CAN, was heard by Pain J on 9 July 2021, with her Honour standing the motion over to hearing on 15 and 16 February 2022. The motion was later attended to by Moore J on 30 July 2021, with his Honour revoking Pain J's order of 9 July 2021, dismissing the motion, and directing the parties to file a statement of agreed facts reflecting Ms Khamas' findings on 23 March 2021 (recorded above at [14]), and indicating that Council would need to request leave for any additional evidence they may seek to rely upon. 3. Council's notice of motion dated 22 July 2021 seeking leave to rely upon the affidavit of Brenda Bourke dated 22 July 2021 and for the hearing dates of the appeal (being 15 and 16 February 2022) to be vacated (due to the unavailability of Ms Khamas), was heard by Moore J on 30 July 2021. The request to vacate was not allowed, on the basis that provision of the above-mentioned statement of agreed facts would ensure the hearing of the appeal could commence on 15 and 16 February 2022.

Evidence

At the hearing of the appeal, each party requested that leave be granted to rely upon additional evidence, and I admitted the further evidence which was not before the Local Court. Both parties submitted that this fresh evidence should be allowed pursuant to s 37(2) of the Appeal Act and that this evidence would be of assistance in considering the orders that both parties now ask the Court to make.
The evidence before the Court comprised the CAN; the transcript of the hearing on 24 March 2021 in the Local Court; the exhibits before the Local Court; and the further evidence for which leave was granted which included, for Mr Sharma, various architectural plans and building reports in relation to the property prepared for Mr Sharma; building applications dated 3 December 1947 and 21 May 1951; and medical certificates. Council relied on an affidavit of David Day dated 2 November 2021 and various correspondence between Council and Mr Sharma and between Council and Mr Sharma's solicitors (who were acting for him at that time).
In addition to the above material, all of which was contained in an "Appeal Book" (which became Exhibit 1), Council also read the affidavit of Brenda Bourke sworn 14 February 2022, and Mr Sharma relied upon an email forwarded to the Court at 10.05pm on 14 February 2022 (which became Exhibit A).
In her affidavit, Ms Bourke, who conducted the hearing for Council in the Local Court, deposes: first, that prior to the Local Court hearing she served Mr Sharma with a Brief of Evidence which had been prepared by Mr Sertlioglu (Council's officer who conducted the investigation and issued the Order); second, that the Brief of Evidence contained a "Statement of Facts" without any signed statement of evidence of Mr Sertlioglu; and third, that Mr Sertlioglu ceased his employment with Council on 22 February 2021.
Ms Bourke also deposes that prior to the hearing in the Local Court she contacted Mr Sertlioglu and, although he had agreed to give evidence on behalf of Council, at approximately 8pm on 23 March 2021, she received an email from Mr Sertlioglu informing her that he would not be attending court to give evidence. The Local Court hearing proceeded in the absence of Mr Sertlioglu. Ms Bourke also deposes that Mr Sertlioglu was also not prepared to attend the hearing of the appeal in this Court and that, in the circumstances, Council did not issue a subpoena for him to appear and give evidence because she formed the opinion that he was likely to be a hostile witness.
Ms Bourke also deposes that on 2 February 2022 Mr Sharma provided her with an email that he had forwarded to Council on 22 February 2021 requesting that three Council employees be made available to be questioned at the hearing in the Local Court and that this was the first time she was aware of any such request.

Mr Sharma's position

In written submissions dated 2 February 2022, which were prepared before Council communicated its view that the appeal should be upheld, Mr Sharma made submissions in relation to a number of the actions required in the Order, some which were not in issue either in the Local Court or in these appeal proceedings.
Mr Sharma submits: first, that the requirement in the Order for the demolition or removal of the carport, was "invalid" on the basis that it did not give him enough time to comply with the terms of the action or to regularise the structure; second, in respect of the requirement in the Order to restore the shed, he maintains his argument that the structure had "consent" (being the 1964 building permit) and in those circumstances, the Order was also invalid (as Council did not have power to issue the Order in relation to the shed); and third, he maintains that he was denied procedural fairness because he was not given the opportunity to cross-examine Council's witnesses at the hearing in the Local Court and, as such, he could not "fully scrutinise their case".
Mr Sharma submits that to the extent that this appeal hearing is effectively a rehearing (based upon the evidence in the Local Court), Council's evidence (before the Local Court) should not be accepted in circumstances where he was not permitted to ask questions of Council's witnesses (whom he had requested be in attendance) or to understand the Statement of Facts (contained in Council's Brief of Evidence) that he believes was tendered, which he submits was not given an exhibit number at the Local Court hearing.
At the hearing of the appeal, Mr Sharma accepted that Council is now effectively asking the Court to set aside the conviction and expressed his concerns regarding: first, the effect of s 24H of the Fines Act 1996 (NSW); second, Council's conduct, noting that the recent affidavit of Ms Bourke (sworn 14 February 2022) had now clarified that he had requested three witnesses to attend the Local Court hearing; and third, that Council, in withdrawing the case, did not recognise the financial impact caused by the fact that he had sold his trucks for a low price because of "low demand caused by COVID".

Council's position

Council submits that, in the circumstances where Mr Sterlioglu did not provide any signed statement of evidence in the Local Court proceedings and agreed and then refused to appear to give evidence in the Local Court hearing, Council "concedes the appeal" in relation to Mr Sharma's ground that he was denied procedural fairness as "this deficiency cannot be cured on appeal because Mr Sertlioglu is not available to give oral evidence and be cross-examined" and has not provided an affidavit deposing of his inspections of the property on the dates during the charge period. Council maintained that in making this concession it does not concede any other allegations made by Mr Sharma.
With that concession, Council submits that it consents to an order that the conviction of the Local Court be set aside.

Consideration

This appeal was commenced pursuant to s 31(1) of the Appeal Act. The nature of an appeal from a determination of the Local Court is well-known and was considered in Cameron v Eurobodalla Shire Council (2006) 146 LGERA 349; [2006] NSWLEC 47 at [10]-[12] (Preston CJ of LEC) and in Heatscape Pty Ltd v Mahoney [2015] NSWLEC 126 at [9]-[13] (Pepper J). I adopt the analysis in each of those decisions.
An appeal against conviction is to be heard by way of rehearing on the basis of the evidence given in the original Local Court proceedings subject to leave being granted in this Court to rely upon further evidence.
I have read the material in the Appeal Book. I have given close consideration to the transcript of the hearing in the Local Court including the considered reasons of the learned Magistrate, and I have closely considered the further evidence relied upon in the present appeal proceedings.
Noting that Mr Sharma does not have legal representation, in considering the parties' positions, I have had regard to the following comments by Kirby P (with Sheller JA agreeing) in Edwards v Allmen Engineering Pty Ltd [1995] NSWCA 138 at 2: "Courts such as this, conducting an appeal on the facts by way of rehearing and must be specially vigilant that they perform their functions correctly, including in cases presented by a litigant in person. Concealed in the lay rhetoric and inefficient presentation may be a just case."
In summary, Mr Sharma in his written and oral submissions contends that he was denied procedural fairness in the Local Court because he did not have the opportunity of cross-examining Council employees as they were not made available to the hearing. Ms Hammond has candidly informed the Court that this "deficiency" cannot be "cured" because Mr Sertlioglu is not (and was not) available to give oral evidence and be cross-examined and because Ms Khamas will not be available to be cross-examined on her affidavit until 2023. In these circumstances, Council submits that it is prepared to consent to an order that the conviction be set aside. The primary reason, as per Council's written submissions, is that Mr Sertlioglu is not available to give evidence at the hearing of the appeal and that he did not provide any signed statement of evidence in the Local Court proceedings.
As a preliminary matter, and not determinative of this appeal, having considered the evidence before the Local Court and the evidence now before this Court (including the further evidence which I have allowed the parties to tender), I note that I do not consider Mr Sharma's position to be compelling in relation to either the timeframe allowed (in the Order) to comply with a number of the actions, or that Council did not have the power under Div 9.3 (s 9.34) of the EPA Act because of an approval as a result of a building permit. Having considered the material, I consider that the Magistrate's finding in relation to the absence of a consent (that is, the rejection of Mr Sharma's reliance on the earlier building permit) was correct such that, to the extent that Mr Sharma raised a collateral challenge in relation to the Order, I consider this has not been made out on the evidence presently before the Court.
More relevantly, I have considered the parties' submissions in relation to the allegation of denial of procedural fairness (Ground 3 of the appeal grounds noted at [8] above - noting that I consider that Grounds 1, 2 and 4 are clearly not made out on the evidence). Before considering Ground 3, I record my preliminary, but not determinative, concern that Mr Sharma indicated to the Magistrate that he consented to Council's tender of a "bundle of documents" (Tcpt, 24 March 2021, p 26(25-30)) and that he now submits that he did not "understand" the Statement of Facts which may or may not have been in the "bundle".
The evidence now before the Court clarifies that Ms Bourke's indication to the Magistrate in the Local Court hearing that Council was not aware that Mr Sharma had requested certain Council employees to be present for cross-examination (noted at [23] above) was incorrect, as Mr Sharma had forwarded an email (on 22 February 2021) addressed to Mr Sertlioglu requesting that three Council employees be "ready for cross-examination". The three employees were identified in the email as: "• Pooja Simmon • Customer Service Telephone Sue • Mr Malaspina (Electrician based at Rowe Street Depot)"
I understand from reading the transcript of the Local Court hearing that Mr Sharma indicated that Mr Malaspina is (or was - it is not made clear) an employee at a council depot and alleged that Mr Malaspina's "father was the one who built the house, and in 1998 a building permit was given to him" and, in Mr Sharma's submission, "the son [Mr Malaspina] could have been here today" to provide further information regarding the origin of the building "and things like that": Tcpt, 24 March 2021, p 25(15-21). Likewise, I understand that "Customer Service Telephone Sue" is the employee of Council that Mr Sharma recorded a conversation supposedly stating that he was allowed to park trucks and load shipping containers within the yard of the property: Tcpt, 24 March 2021, pp 13(32-36), 25(24-44).
It is now clear, that at the time Mr Sharma's email was received by Council (on 22 February 2021), the addressee, Mr Sertlioglu, was no longer in the employ of Council and when Council presented its case in the Local Court, Ms Bourke was unaware that this request had been made.
In relation to Council's concession (noted above), that its position is that Mr Sertlioglu, Council's officer who carried out the investigations and issued the Order, was not available to give evidence in the Local Court (for the reasons detailed in Ms Bourke's affidavit of 14 February 2022) and that Council's officer, Ms Khamas, who undertook the further investigation and thereafter provided further evidence is also unavailable (noted at [42] above), I am concerned, as expressed to the parties during the hearing, that even the fact that Mr Sharma had requested the three Council employees (noted above) to be available for cross-examination at the hearing in the Local Court, and expressed concern to the Magistrate that those witnesses were unavailable, he did not specifically request that Mr Sertlioglu be made available. Although I note that (at Tcpt, 24 March 2021, p 25(15-23)) Mr Sharma stated that, "[T]he Prosecutor is not here today…".
Despite my view that a number of the matters raised by Mr Sharma in the Local Court hearing were properly decided by the Magistrate, I accept, with some concern, that Council now accepts that to the extent that Mr Sharma was denied procedural fairness (as he pleads as per Ground 3 in the summons), this "deficiency cannot be cured on appeal" because Mr Sertlioglu is not available to give oral evidence and be cross-examined at the hearing of the appeal.
In these circumstances, I consider that it is appropriate to make the orders that the parties now ask the Court to make, upholding the appeal.
Although again not determinative in my consideration, I note that there is material before the Court in the form of Mr Sharma's very recent email (received by the Court at 10.05pm on 14 February 2022) in which he raises concerns relating to: first, the Magistrate not allowing him to play a recording he made of a conversation he had with a Council officer ("named Sue") relating to the parking of trucks and other vehicles on the property; and second, in relation to using the premises as a "Depot". While these matters are not of relevance here, and were, in the circumstances, not of relevance before the Local Court, given Council's abandonment of a number of "actions" (in the Order) in the Local Court, it appears clear (as noted at [45]-[46] above) that "Sue" was one of Council's employees that Mr Sharma had requested attend the Local Court hearing. Whether her attendance would have assisted Mr Sharma's case is simply not known.
Although I have concerns in relation to the manner in which the parties have approached the determination of this appeal, on the evidence before me, as noted above, with some hesitation, I make the orders sought by consent.

Orders

The Court orders: 1. The appeal is upheld. 2. The conviction imposed by the Local Court on 24 March 2021 against Sudesh Prasad Sharma for the offence against s 9.37(1) of the Environmental Planning and Assessment Act 1979 (NSW) of failing to comply with a development control order dated 6 September 2019 issued by Liverpool City Council is set aside. 3. The orders of the Local Court of 24 March 2021 in proceedings 00176167 of 2020 are set aside. 4. No order as to costs.

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: 17 February 2022

(2006) 146 LGERA 349

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