Sutherland Shire Council v Turner, C B

SOLICITORS Freidman Reeves

JUDGMENT:

• 10 - THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

JUDGMENT HIS HONOUR: 1 The Defendant has pleaded guilty to a charge of an offence against the Environmental Planning and Assessment Act 1979, s 125 (the EP&A Act) in that he did carry out development on land, being development which required the grant of development consent, without that development consent having been granted, contrary to s 76A of the Act. 2 In the Summons, the particulars endorsed of the work carried out in an unauthorised fashion, the works are described as works for the purpose of a proposed construction of a boatshed, sliprails and seawall, in particular, excavation works on the foreshore land above the seawall. Originally the particular had included other matters pertaining to a retaining wall but the Prosecutor at the commencement of the hearing, sought and obtained leave of the Court to delete that further particular. 3 The work carried out without the requisite approval was preparatory excavation work described in the statement of agreed facts behind tab 2 of exhibit 1 by the Council environmental compliance officer Mr Plumber, upon his inspection of the premises, as measuring four metres by five metres with a depth of three to four metres. The amount of excavation from those dimensions, could be deduced at between sixty and eighty cubic metres. 4 However, in the evidence of the Defendant, which has not been challenged or rebutted, it appears that the activity involving the excavation work undertaken by the Defendant in circumstances that I will presently relate, involved the removal of some eight to twelve cubic metres of excavated material from the excavation. The Defendant, having given evidence both in affidavit form and orally of the fact that in carrying out the excavation work, the subject of the present charge, that work involved working on an existing excavated area and doing the arithmetic it can be seen that from the existing excavated area, having a cubic measurement of some sixty to eighty cubic metres, the great bulk of the excavation pre-existed the work undertaken by the Defendant, the subject of this charge. 5 As I understood the Prosecutor's final address, no challenge or rebuttal of the evidence given by the Defendant was mounted. In these circumstances I accept the Defendant's evidence that the excavation work undertaken by the Defendant in February 2003 did not create the excavation on the site that was visible to Mr Plumber when he arrived at the premises and made his observations as recorded in paras 11, 12 and following of the statement of agreed facts, but in fact involved a completion of that activity involving but a minor extension of the already pre-existing excavation. 6 The fact that is left somewhat in doubt now that that matter has been clarified in the evidence, concerns the exposure of the land below a large rock floater situated immediately above the excavated area. This is referred to in par 25 of the statement of agreed facts and the excavation of the area below the rock floater obviously created a potential hazard, such that the Council was prompted to serve an order for remedial action to be taken pursuant to the Local Government Act 1993, s 124. That order was served on the owners of the property and required them to carry out stabilisation works in accordance with the specifications of geo-technical engineers. 7 The Court was not informed in the evidence, including the statement of agreed facts, as to the current status of either that order, compliance with it or the state of the land. However in his submissions, Prosecuting Counsel noted the creation of the potential hazard and noted that the risk had not materialised. As I say, the Court is not given further evidence on that matter, other than the fact that the excavation, to which I have referred, both in its pre-existing condition and in its extended condition by the work undertaken by the Defendant in February 2003, obviously still exists. 8 I refer to the Defendant's observations when he attended the property recently on 15 May 2004. One can only trust that the stabilisation works required by the Council in its s 124 order, have been carried out or are in the course of being carried out. I mention the matter because of the implications for assessing the nature of the breach of the Planning Act created by the work admitted to have been undertaken by the Defendant, inasmuch as the evidence does not permit me to find beyond reasonable doubt, which is the requisite standard, that the creation of that potential hazard of undermining or exposing the large rock floater, was the result of the work undertaken by the Defendant in contradistinction to the work previously undertaken in relation to that excavation. The matter, somewhat unsatisfactorily, must be left in that state on the evidence. 9 The circumstances in which the admitted offence was committed, are detailed in the statement of agreed facts. The Defendant was the managing director of a company, Harbour Port Constructions Pty Limited, which had been responsible for the lodging of a development application with the Sutherland Council for the construction of a boatshed and associated sliprails on a property known as 13B Korokan Road Lilli Pilli which is a waterfront block of land with frontage to the waters at Port Hacking. That application had been received by the Council on 4 February 2003 and the Defendant's company had been commissioned by the landowners to obtain that consent and carry out the work. 10 The Defendant's company and the Defendant himself, have been involved for many years in the building construction industry, specialising in the marine environment. By that I refer to undertaking works at the interface of land and waters on the coast of New South Wales, apparently doing works principally from the Central Coast down to Shoalhaven. In the course of some 25 years of work, the Defendant, specialising in this particular aspect of the construction industry, has been associated with more than 1,000 applications for projects for waterside development. In that work at the time that the development application was lodged, the Defendant's company engaged the services of a qualified architectural draughtsperson, Ms Bronwyn Shellshear, to be responsible for the paperwork in obtaining requisite approvals from Councils or the Land and Water Conservation Department or otherwise. 11 The Defendant, having through his company lodged the development application with the Council, deposes in his evidence to being told by Ms Shellshear in the office some time in January, that they had obtained consent for the client who owns the aforesaid land at Lilli Pilli. In his affidavit evidence the Defendant said that he, upon hearing Ms Shellshear's remark, misunderstood its import, thinking that she was referring to the fact that final consent to commence the building works at the property at Lilli Pilli had been granted. At the time, that is in January or February 2003, the Defendant's practice was to leave all matters pertaining to the requisite paperwork in connection with development applications, to Ms Shellshear. As a result of learning from Ms Shellshear that the consent had been obtained, the Defendant immediately contacted the client, the owners of the Lilli Pilli property, to receive instructions to commence work. The work required bringing the excavator and other equipment to the property by barge and that requirement limited access according to the state of the tides. In any event, arrangements were made by the Defendant for the excavator and other equipment, including the skip bins, to be barged to the property on 18 February 2003 because of the knowledge of the tides for the time this occurred. 12 The excavator and the equipment were delivered to the property on 18 February and work was commenced at the property. The work that was commenced, as I say, was referrable to preparatory site works for the proposed boatshed, but of course as the evidence reveals, development consent had not been granted by the Council. Indeed, the application, evidently, only found its way to the Council on 4 February. What Ms Shellshear had announced as the obtaining of the requisite consent, in fact was the obtaining of consent from the Department of Land and Water Conservation as owner or occupier of the land below high water mark, for the application for the sliprail in connection with the proposed development to be lodged with the Council. In point of fact, the development application, which the Defendant believed to have been the matter the subject of the approval announced by Ms Shellshear, never eventuated. The Council ultimately refused the development application by its determination dated 16 July 2003. 13 Under cross-examination the Defendant candidly admitted that the system that he and the company employed in relation to satisfying themselves that the requisite approvals, including development consent had been granted before embarking upon construction works, was negligent and it self-evidently was. The Defendant had expressed similar candour when first spoken to by the Council's investigators in early March 2003. The conversations between Mr Plumber and the Defendant are recorded in par 18 of the statement of agreed facts. When told by Mr Plumber that there had been no approval for the boatshed and associated works, the Defendant and I read from par 18 of the statement of agreed facts, I now realise that the approval was from the Department of Land and Water Conservation only for the sliprails, not from the Council. I just jumped in and did it. It was my fault. I should have known better as there was no construction certificate issued. The owners get the construction certificate from a bloke I use direct, they organise them, not me. 14 Nonetheless, in the course of his conversation, the Defendant readily accepted full responsibility for what had happened. I interpose that the actual work on site was done by a subcontractor or an excavator unassociated directly with the Defendant or the Defendant's company. 15 The Statement Of Agreed Facts also refers to the consequences for an adjoining tree of works undertaken at the site. However that evidence needs also to be adjusted conformably to the evidence given by the Defendant on matters concerning which the Prosecuting Counsel again appears to have accepted the evidence as it fell from the Defendant. 16 In summary therefore, the work undertaken by the Defendant in the mistaken belief that the requisite development consent had been granted when in fact it had not, involved a small amount of excavation work done in preparation for the erection of the boatshed and associated accoutrements which, owing to the Council's refusal of the development application have never come into existence. 17 The work undertaken by the Defendant, or at his instruction, at the site in fact can be confined to what occurred on the three days (18, 19 and 20 February). Considered in isolation in objective terms, these would be regarded as minor activities, albeit activities that required the grant of development consent, particularly given the sensitive waterfront location of the subject property and the requirements of the Sutherland Local Environmental Plan in relation to waterfront development. There is no question that the proposed development, the subject of the development application lodged by the Defendant's company on behalf of the landowners, was development that was permissible with the grant of consent, but as I say, that consent has not been granted and the application has ultimately been refused by the Council. 18 The Council, in the helpful address of Prosecuting Counsel, has in my view, fairly and aptly described the admitted defence to be at the low end of the spectrum of the gravity of the offence created by of the EP&A Act. The maximum penalty prescribed for such an offence is $1.1 million and, of course, the spectrum of gravity ranges from insignificant breaches of the Act to significant breaches of the Act. The work the subject of the admitted offence, as I have said in this case, can only be regarded as minor preparatory work which did not involve any proven actual environmental damage to the land or to the waters adjacent. 19 Nonetheless, Prosecuting Counsel has rightly called the Court's attention to the need for both general and specific deterrents in relation to persons committing breaches of our environmental laws, including the now well known universally applicable provisions of the EP&A Act. Such deterrence has been the subject of many Judgments, both in this Court and the Court of Criminal Appeal, which uniformly attest to the significance of environmental offences and the hefty penalties prescribed for offences against such laws. In the present case, fortunately little work was done before the Council investigators came on the scene and once the Defendant became aware that he had been mistaken as to the existence of the requisite development consent, he entirely cooperated with the Council. The threat of further breach of the Act immediately was dispelled by his cooperation with the Council and the Council's investigators. 20 A number of mitigating circumstances and factors have been relied upon in the Defence Counsel's submission in the present case. In particular, the Court is told that the Defendant entered a plea of guilty to the charge immediately after the Council had filed its evidence in support of the charge and that, conformably with existing authority, the Defendant should be given the benefit of the utilitarian value of that plea. Additionally, it is submitted on behalf of the Defendant that the early plea of guilty, particularly when conjoined with the circumstances of the candid acceptance of full responsibility by the Defendant when confronted by the Council's investigators, bespeaks contrition on his part. Lest there be any doubt, Defence Counsel proffered to the Court the apology of the Defendant for what he candidly, in the course of cross-examination, admitted was a mistake made by him borne of negligence in failing to satisfy himself both personally and on behalf of the company of which he was the managing director, of the existence of requisite approvals before undertaking development work. 21 I accept the expression of contrition on the part of the Defendant. I also accept that his candour and cooperation with the Council investigators and ready admission of responsibility for the work of the subcontractor, which is the subject of the present charge brought against him, all bespeak contrition. In fact, Defence Counsel put the submission conformably with authority, that the incident giving rise to the present offence should be seen to be in the nature of an aberration from the Defendant's exemplary conduct in the marine environment building construction industry over a period of 25 years. Further, Defence Counsel submit that this aberration is one that is not apt to be repeated in the future, particularly in view of the management and procedural changes that the Defendant has introduced into his and his company's activities as a result of the lesson learned from this incident. Here I refer to the fact that he now has a system whereby all pending projects are monitored for tracing them through from application stage to approval stage, construction certificate stage as required by the EP&A Act for building and construction work. By deed of the implementation of that improved and, if I may say so, sensible system of proceeding and also because of the lesson positively learned by the Defendant in the present case, I am confident that there is little or no likelihood of a recurrent offence. 22 The need therefore for specific deterrence of the Defendant is not so pressing as it may otherwise be. However, the need for general deterrence and the education of the community in the need to comply with the laws of the land in relation to the carrying out of development, is a legitimate sentencing principle to invoke in the present case. Other mitigating factors I think should be noted. As I say, the unblemished exemplary record for quarter of a century of the Defendant's involvement in the marine environmental construction industry involving more than 1,000 projects and the fact of course that this is the first offence with which he has been charged, are all factors which go to mitigation. 23 Prosecuting Counsel, as I say, was right to submit that the offence is at the low end of the spectrum of gravity of the wide range of offences that may be committed against the EP&A Act. 24 A number of cases in this Court have emphasised the fact that the requirement that development consent be granted before work is undertaken is an important linchpin of the control on building and development works imposed by the planning laws, which, if not honoured and obeyed, would result in the whole system of planning control being placed in jeopardy. This point was made by Lloyd J in one of the reported decisions Mosman Municipal Council v Menai Excavations Pty Limited (2002) 122 LGERA 89. The importance of that matter referred to by his Honour, has recently been discussed in an unreported decision of mine, Willoughby Council v P and V Masonry Pty Limited [2003] NSWLEC 312, a decision handed down on 14 November 2003. 25 Having regard to all of the circumstances that I have outlined, including my evaluation of (i) the objective circumstances of the present case, finding that the works undertaken were of a minor nature, (ii) the subjective circumstances of the Defendant admitting that his action in commencing work was in the circumstances, negligent (a conclusion that cannot, I think, be gainsaid) and (iii) the need for general deterrence in the proper education of the community in the need to observe the laws of the land pertaining to the carrying out of development (and particularly the legitimate expectation that, of persons such as the Defendant who are professionally involved in development, a higher standard of awareness of the laws and understanding of the need to comply can be expected), I am of the opinion that the offence committed would justify the imposition of a conviction and the imposition of a penalty at the low end of the spectrum of gravity of the range of offences created, justifying in all of the circumstances a penalty in the order of $20,000 to $25,000.

26 For the reasons that I have given, a significant reduction of that penalty is justified by the combined force of all of the mitigating circumstances that I have earlier adumbrated. In the circumstances, I am of the opinion that an appropriate penalty to impose upon conviction in the present case, is a fine in the sum of $15,000. The Defendant has agreed to pay the Prosecutor's costs in the sum of $12,500. I have also taken that into account in determining the appropriate penalty to impose in this case. 27 For all of the foregoing reasons, I make the following orders.

1. The Defendant is convicted of the offence as charged. 2. A fine of $15,000 is imposed in respect of the conviction. 3. The Defendant is to pay the Prosecutor's legal costs in the agreed sum of $12,500. 28 The exhibits should remain on the Court papers and in consequence of my decision just announced and conformably with what Prosecuting Counsel and Defence Counsel have said to me in relation to the related charge of the offence against the Defendant's company, Harbour Port Constructions Pty Limited, (50015 of 2004) I order by consent, in the absence of any evidence being tendered in the case, that the Summons be dismissed with 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.