Sutherland Shire Council v Upper Class Developments Pty Limited

IN THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES 50060 of 2003 50088 - 91 of 2003

UPPER CLASS DEVELOPMENTS PTY LIMITED Defendant

The Defendant company has pleaded guilty to five charges. All the charges relate to the same premises in Florida Street, Sylvania where the Defendant has been undertaking the demolition of the existing structures and the construction of twenty-five townhouses.

Two of the offences charged relate to the pollution of waters under s.120 of the Protection of the Environment Operations Act 1997 (the PEO Act) by the Defendant on 14 February 2003 and 17 April 2003. Three of the offences charged relate to the failure of the Defendant to carry out development in accordance with the conditions of a development consent, an offence under s.125 of the Environmental Planning Assessment Act 1979 (the EP&A Act). These offences relate to events which occurred on 20 January 2003, 14 February 2003 and 20 March 2003.

In relation to the offences relating to the failure to comply with development consent, I note that the particulars in those three offences are in somewhat similar terms in the respective summons issued. The respective summonses indicate that the offences in respect of the development consent relate to the failure of the Defendant to: (a) implement and maintain erosion sediment control measures to minimise downstream sediment transfer; (b) install and maintain a silt fence or other erosion control measures to prevent sediment and other debris escaping from the premises; or (c) install a cattle grid type shaker pad or similar control within the boundary of the land; as required by the conditions of consent.

The second category of offences relates to the obstruction of the footpath and nature strip. The particular offences detail variously that top soil debris and/or bricks used in the construction was left on the public footpath and nature strip at the front of the premises in Florida Street.

The parties have provided a Statement of Agreed Facts. Relevant paragraphs are set out as follows: 7. The Land slopes towards its frontage along Florida Street. The Land and Florida Street slope fairly steeply down to the North towards Harrow Road and the Georges River….

8. There are four stormwater pits in the vicinity of the Land, which are all connected to stormwater pipes which, in accordance with their design, collect stormwater which have been channelled into the pits by the gutters along Florida and Harrow Streets, and drain the stormwater to the Georges River. The locations of these stormwater pits are shown on the sketch plan referred to in the preceding paragraph and are marked "SWP1" through to "SWP4". The points where the stormwater which enters these pits drains into the Georges River is also shown on the sketch plan. 6. In relation to matter 50060 of 2003 being the offence of 20 January 2003: 9. On 20 January 2003, Sutherland Shire Council officers. John Gilmore and Michael Plummer inspected the Land. Building work was in progress. There were a number of large townhouses under construction. There were large areas of disturbed soil on the Land. Messrs Gilmore and Plummer observed that the defendant was carrying out the development contrary to the conditions 38, 39, 40, 41 and 42 of the development consent. In particular: (a) The defendant did not have in place adequate erosion and sediment control measures to minimise downstream sediment transfer as was required by condition 38. There were no sediment control measures along much of the frontage of the Land along Florida Street. (b) The defendant did not have in place adequate silt fencing or other erosion control measures to prevent sediment and other debris escaping from the disturbed areas into the gutters along Florida Street as was required by condition 39 of the Development Consent. A small U-shaped silt fence was located at the frontage of the property adjoining the Land to the north, but this was not adequate to prevent and control the migration of sediment from the Land to the Florida Street gutters; (c) The defendant did not have in place a "cattle grid" type shaker pad or similar control immediately within the boundary to prevent tracking of sediment by vehicles onto Florida Street as was required by conditions 39 and 42; (d) Pallets of bricks were stockpiled on and blocking the public footpaths and nature strips on both sides of Florida Street at and opposite to the frontage of the Land. In places the stockpiles were five pallets deep from the boundary of the Land to the road verge. There were also some fencing panels on the footpath and grass verge on the eastern side of Florida Street. Debris including broken bricks and wooden pallets were stockpiled on the footpath and nature strip at the frontage of the Land. (e) Three elderly pedestrians who were walking down the footpath on the western side of Florida Street had to walk along the road on Florida Street in order to pass the site because of the obstruction of the footpaths 7. In relation to matter 50088 of 2003 being the offence of 14 February 2003: 11. On 14 February 2003, Mr Gilmore again attended and inspected the Land. Building work was in progress. He observed that the defendant was carrying out the development contrary to conditions 38, 39, 40, 41 and 42 of the Development Consent. These contraventions of the Development Consent were of the same nature as the contraventions of the Development Consent observed on 20 January 2003. In particular: (a) There were large areas of disturbed soil on the Land and a section of the footpath on Florida St at the frontage of the Land had been removed such that the areas of disturbed soil extended from the Land all the way to the edge of the gutter on Florida Street. This area was covered with dirt sand and other granular material, some of which was wet; (b) The defendant did not have in place adequate erosion and sediment control measures to minimise downstream sediment transfer as was required by condition 38. There were no sediment control measures along much of the frontage of the Land along Florida Street; (c) The defendant did not have in place adequate silt fencing or other erosion control measures to prevent sediment and other debris escaping from the disturbed areas into the gutters along Florida Street as was required by condition 39 of the Development Consent. A small U shaped silt fence was located at the frontage of the property adjoining the Land to the north, but this was not adequate to prevent and control the migration of sediment from the Land; (d) The defendant did not have in place a "cattle grid" type shaker pad or similar control immediately within the boundary to prevent tracking of sediment by vehicles onto Florida Street as was required by conditions 39 and 42. There were sediment tracks on Florida Street. One of these started on the road immediately in front of he driveway to the Land; (e) There were pallets of blocks, bags of sand, fencing panels and other refuse located on the footpath on the western side of Florida Street at the frontage of the Land.

8. In relation to matter 50091 of 2003 also relating to the offence on 14 February 2003: 12. During his inspection of the Land on 14 February 2003, Mr Gilmore also made the following observations: (a) There was a trail of wet granular material leading from the disturbed footpath area at the frontage of the Land, across the driveway entrance and into the gutter on the western side of Florida Street; (b) Sediment laden water was flowing from the Land along the gutter on the western side of Florida Street. There was also a trail of sediment laden water from the driveway entrance to the Land flowing downhill along the footpath on the western side of Florida Street; (c) Most of this sediment laden water was flowing into the stormwater pit located on the western side of Florida Street near the corner of Harrow Street (SWP1). Some of the sediment laden water was by-passing SWP1 and flowing along Harrow Street towards SWP4; (d) Wet sediment had accumulated on the footpath and in the gutter on the western side of Florida Street, just downhill of the driveway entrance to the Land and had also accumulated on the driveway entrance. 9. In relation to matter 50090 of 2003 concerning the offence on 20 March 2003: 14. On 20 March 2003, Mr Gilmore again attended and inspected the Land. He observed that the defendant was carrying out the development contrary to the conditions 38, 39, 40, 41 and 42 of the Development Consent. These contraventions of the Development Consent were of the same nature as the contraventions of the Development Consent on 20 January 2003 and 14 January 2003. In particular: (a) The defendant did not have in place adequate erosion and sediment control measures to minimise downstream sediment transfer as was required by condition 38. There were no sediment control measures along much of the frontage of the Land along Florida Street; (b) The defendant did not have in place adequate silt fencing or other erosion control measures to prevent sediment and other debris escaping from the disturbed areas into the gutters along Florida Street as was required by condition 39 of the Development Consent. There was an L-shaped silt fence along the frontage of the property adjoining the Land to the north and a silt fence downhill of the driveway entrance to that property. These silt fences were adequate to prevent migration of sediment from the de-grassed areas which they enclosed at the frontage of the adjoining property, but were not adequate to prevent and control the migration of sediment from the Land. There was no silt fence in place along the Florida St frontage of the Land to prevent migration of sediment into the gutters on Florida Street. There was, however, a brick/masonry wall, part of which extended along the Florida Street frontage. (c) The defendant did not have in place a "cattle grid" type shaker pad or similar control immediately within the boundary to prevent tracking of sediment by vehicles onto Florida Street as was required by conditions 39 and 42; (d) Materials including a large stockpile of sand, broken pieces of concrete and other building refuse was located on the footpath and nature strip on the western side of Florida Street.

In relation to matter 50089 of 2003 concerning the offence on 17 April 2003: 15. On 17 April 2003, Mr Gilmore again inspected the Land, this time in the company of Sutherland Shire Council officer, Harvey Fee.

16. Brown sediment laden water was flowing from the Land into the gutter on the western side of Florida Street and into the stormwater pit on the western side of Florida Street near the corner of Florida and Harrow streets ("SWP1"). Uphill of the Land, the water flowing along the gutter on the western side of Florida Street was clear. SWP1 was full of brown looking water, mud, sediment, sand and small pebbles. SWP1 was not protected and there was a broken filter tube inside that pit. That tube was split and material from within it had entered the pit.

The Defendant has pleaded guilty, consequently the essential legal elements of each offence have been admitted and are assumed to be proven. I note the maximum penalty applicable in relation to the pollution of water offences is $250,000 for a company under the PEO Act. In relation to the breach of development consent the maximum penalty of $1.1 million is specified under the EP&A Act.

In relation to the additional matters which the Prosecutor raised, there is one that I will deal with now. One of the issues raised in the three offences concerning the failure to comply with the development consent, that is matters 50090, 50088 and 50060, concerns the failure to install a cattle grid "shaker pit" which is specifically required in the relevant Council development control plan with respect to environmental site management as an aid to sediment controls at building sites. Two clean up notices requiring the building of these types of structures, known as stabilised access point or SAPS, were served on the Defendant before the Defendant was charged with the commission of these offences and these were provided in evidence. It is agreed these notices were not complied with and this was relied on by the Prosecutor in submissions in relation to the culpability of the Defendant in this matter.

The Defendant also put on reasonably lengthy submissions, which it is necessary that I detail here, concerning its view of the various offences.

The Defendant relied on two affidavits by its director, Mr Richard Smith, both dated 8 October 2003. In relation to the delivery of bricks which were placed on the Council controlled public footpath outside the site and across the road in relation to summons 50060, 50088 and 50091, Mr Smith submitted in his affidavit that the Defendant had no control over the delivery times of bricks by the various brick companies. If more than one brick truck arrived for unloading at any one time, and insisted that the bricks be immediately removed from the truck, it was necessary to store these at the front of the property on the footpath. Only one brick truck at a time could be accommodated on the single all-weather road, which was used as the entry and exit point for the site. All bricks were removed within approximately sixty minutes of delivery time. However, if brick trucks delivered after four pm, when work had finished on the site for the day, it was necessary for the bricks to remain overnight until the next morning, but otherwise all bricks were removed as promptly as possible in the circumstances from the public property.

In relation to sediment control measures, Mr Smith stated in his evidence that at the initial construction stages a cattle grid shaker, as was required by the relevant Council Development Control Plan, was used. Following construction in that area, access to and from the property was then effected by means of an all-weather road. This was considered by him to be a sufficient measure to stop sediment migrating from the site because all trucks entered and left across a sealed road. It was his evidence also that a concrete grid was constructed at the end of the road at the exit from the site onto the public road. This included grooves put in at the direction of Mr Gilmore of Council, although I note that Mr Gilmore disputes this in his evidence. This was said to be effective to direct water coming down the slope from the site and also to act as a final buffer to shake loose material from the wheels of vehicles exiting the site. In Mr Smith's opinion the concrete all-weather road and the slab at the bottom of the site on that road were more effective than the cattle grid shaker required by Council's development control plan.

In relation to silt fences, Mr Smith considered it would be impossible to have 100 percent effective sediment fences operating during heavy rain because sediment builds up too quickly, unless there were workmen on site for twenty-four hours, which is simply not feasible. He stated that to assist in sediment control he had arranged to have a sedimentation pit which would cover and collect at least ninety percent of sediment coming from the site (which was a very large one at approximately 7100 square metres) put in place. In his opinion, the sediment pit was substantially better than silt fences or the cattle grid shaker style of SAPS in controlling sediment flow from the site. Secondary measures the company adopted at the site to control sediment escaping were silt fences, hay barrels and, initially in the early construction stages, the cattle grid shaker.

In relation to the first offence which occurred on 20 January 2003 (matter 50060 of 2003) and concerned the breach of a development consent, it was Mr Smith's evidence that the only sediment which was coming from the site at that stage was emanating from the public footpath area. Sediment on site was retained by the retaining wall that had by then been built. Mr Smith gave evidence that measures were taken, such as the use of sandbags and filter bags at the lowest drainage point and also the installation of a u shaped silt fence at the bottom end of the site. Some debris from the site was also caught by the silt fence in place. In other words, measures were taken by the Defendant to ensure that sediment did not escape.

In relation to the offences of polluting waters and also of breaching the development consent which occurred on 14 February 2003 (matters 50088 and 50091 of 2003), Mr Smith's evidence in his affidavit was that it was impossible to stop all sediment coming from the nature strip and footpath area as the company was not permitted to put silt fences around the gutter as, according to the Council, it caused obstruction.

In relation to the offence which occurred on 20 March 2003 (matter number 50090 of 2003), Mr Smith gave evidence that it was not possible to construct a silt fence across the only access to and from the site in order to prevent all sediment coming off the driveway. At this stage of construction, the nature strip and footpath had been replanted with grass but this had been washed away during periods of heavy rain. There was a U - shaped silt fence in place at the bottom of the building site and this did catch most of the sediment. The placement of any building material on that date at the front of the site was temporary as the material was moved on the day in question to the areas required on the site. Any offence was for a short period only.

In relation to the offence which occurred on 17 April 2003 (matter number 50089 of 2003) concerning the pollution of waters, Mr Smith's evidence was that there were silt fences in place which did catch the vast majority of the run off from the site and were effective, given the size of the site at 7100 square metres. Most of the sediment was coming from the public footpath area which had only been very recently turfed. The Defendant was simply unable to control all the sediment in an effective way as they were not permitted to put silt fences along the footpath as they so chose.

I turn now to the issue of the Defendant's s 10 application. I was asked by the Defendant's solicitor to apply s 10 of the Crimes (Sentencing Procedure) Act 1999 and make an order directing the relevant charge be dismissed.

I must take into account various factors listed in s 10 in considering whether I ought to exercise my discretion in the Defendant's favour. These factors are as follows: (a) the person's character, antecedents, age, health and mental condition; (b) whether or not the offence was of a trivial nature; (c) whether there are extenuating circumstances in which the offence was committed; and (d) any other matters the Court thinks proper to consider.

The Defendant submitted to the Court, through his solicitor, that s 10 should apply in relation to the offence of pollute waters, which was matter 50091 of 2003, committed on 20 January 2003. This application was made on the basis that the pollution was slight and the offence could be described as minor. It was further argued the Defendant's culpability was low because it had taken steps to prevent the pollution of waters but these steps were simply insufficient on the day. It was further argued that it was very difficult to operate perfectly on a building site, while the Defendant's efforts were not sufficient to stop all discharges, measures taken did substantially reduce the amount of pollution migrating off the site. I note the Prosecutor opposed the application of s 10.

Finding on s 10 24. I do not consider that, while the offence can be described as trivial in terms of the environmental consequences, the Defendant's culpability is trivial, given that the actions giving rise to the offence were deliberate, although I do not accept they were wilful. Further, this is a strict liability offence and the Court is reluctant to apply s 10 of the Crimes (Sentencing Procedure) Act in strict liability offence cases unless there are extenuating circumstances. I do not consider there are any extenuating circumstances before me. It is not appropriate therefore that I apply s 10.

25. It is necessary that I consider the matter of penalty in all the matters before me. To that end I need to consider s 241 of the PEO Act: (1) In imposing a penalty for an offence against this Act or the regulations, the court is to take into consideration the following (so far as they are relevant): (a) the extent of the harm caused or likely to be caused to the environment by the commission of the offence, (b) the practical measures that may be taken to prevent, control, abate or mitigate that harm, (c) the extent to which the person who committed the offence could reasonably have foreseen the harm caused or likely to be caused to the environment by the commission of the offence, (d) the extent to which the person who committed the offence had control over the causes that gave rise to the offence, (e) whether, in committing the offence, the person was complying with orders from an employer or supervising employee. (2) The court may take into consideration other matters that it considers relevant. The extent of harm caused or likely to be caused to the environment by the commission of the offence

26. There is no dispute between the parties as to the level of harm involved. The Prosecutor submitted, and I agree, that there is no evidence of actual harm to the natural environment as a result of sediment laden water entering the stormwater system. Although harm within the meaning of the definition of harm contained in the dictionary of the PEO Act clearly did occur, as is clear from the evidence, overall the environmental harm caused by the offences is minor. I do take into account, however, the Prosecutor's submissions that the Georges River, into which the sediment laden water would ultimately flow through the stormwater system, is a large catchment which could be seriously harmed by the cumulative effect of a number of these incidents occurring within the catchment. I accept that this is a fact to consider in relation to general deterrence which I will refer to further below. The practical measures that may be taken to prevent, control, abate or mitigate that harm 27. The next matter I must consider is the practical measures that may be taken to prevent, control, abate or mitigate harm.

I agree with the Prosecutor that the Defendant could and should have taken more actions in the period leading up to the commission of the offences to avoid the possibility of harm to the environment or, at least, to further diminish the likelihood of harm. While the Defendant argued, based on the view of its director Mr Smith, that the company had installed superior erosion control measures to those required by the Council, which I have already detailed in my review of the Defendant's submissions, I do not have before me any expert evidence as to whether or not these measures were in fact superior. The Council had insisted for several months prior to the commission of these offences, as is evidenced by the clean up notices issued to the Defendant which the Defendant did not comply with, that it required the installation of the cattle grid style stabilisation access point on the property and this had not been done.

The other measures implemented by the Defendant were also insufficient to prevent sediment laden water leaving the site. While I do accept that the Defendant made considerable efforts to prevent this occurring, the efforts made by the Defendant were ultimately not sufficient. Accordingly there clearly were practical measures that could have been taken to prevent, control or mitigate the harm beyond those implemented by the Defendant. The extent to which the person who committed the offence could reasonably have foreseen the harm caused or likely to be caused to the environment by the commission of the offence.

I agree with the Prosecutor that the harm likely to have been caused by the commission of the offences was clearly foreseeable and that inadequate erosion control measures which failed to prevent or minimise water pollution did result in water pollution which was foreseeable. The extent to which the person who committed the offence had control over the causes that gave rise to the offence

There is no argument that the Defendant was the person who was in control.

Section 241(e) does not arise in the matter before me.

In addition to the matters specified in s 241 I need to consider the culpability of the Defendant. As I have already said, the Defendant clearly is culpable but, while the offences were deliberate in the sense that the actions giving rise to them were deliberate, I do not accept there was any wilfulness or negligence on the Defendant's part.

The Court is also required to consider the issue of proportionality. Also, as the Court of Appeal stated in Camilleri Stockfeeds Pty Limited v Environment Protection Authority (1994) 82 LGRA 21, I must have regard to the maximum penalty applicable as this is an expression of the seriousness attributed to the offence. Having said that, I accept these matters are not serious, so that while deliberate actions gave rise to the offences, the environmental consequences certainly are minimal. I have already said that I do not consider there was wilful or negligent behaviour on the Defendant's part.

The Prosecutor argued that specific deterrence was necessary given the Defendant's unsatisfactory response to the clean up notices issued by the Council between July 2000 and April 2003. I do not consider, however, given the considerable efforts of the Defendant on the site in relation to erosion control measures implemented, that specific deterrence is needed.

It is important, given the nature of the business, property development, in which the Defendant is engaged, to consider the issue from the point of view of general deterrence. It is important to ensure that companies which carry out significant developments in metropolitan Sydney ensure that their environmental controls are satisfactory and that they comply with all conditions of development consent. I do take the need for general deterrence into account in reaching a penalty in the matter.

I also need to mention one other matter which the Defendant's solicitor put to me in relation to even handedness or parity. The Defendant's solicitor submitted that I should take into account that matters 50088, 50091 and 50090 of 2003 had all been the subject of penalty infringement notices issued by the Council to the Defendant. If paid, these penalty infringement notices would have involved fines of $600 in relation to the failure to provide adequate erosion controls and of $1500 in relation to the water pollution offences. It was suggested to the Court that I should not impose significantly greater penalties than would have been payable had the penalty infringement notices not been Court elected as the Defendant chose to do. If I did so, this was said to penalise the Defendant company for choosing to come before the Court so that the matters in dispute could be put to the Court. I find this submission troubling in that this Court's jurisdiction is in no way limited by the fine limitations placed on penalty infringement notices. Section 37 of the Fines Act 1996 provides that, when a penalty infringement notice is Court elected, the legal position is that it is as if the penalty infringement notice had not been issued. Accordingly, I do not think it is appropriate to take into account the fine that was available for the penalty infringement notices issued to the Defendant in the assessment of penalty here.

The Prosecutor submitted that the five offences are connected temporally and conceptually and that the totality principle ought to apply. The Defendant also urged on me the need to apply the totality principle. I agree with these submissions and I will apply the totality principle.

In my opinion, the circumstances of these offences warrant that a penalty of $10,000 be imposed in relation to each offence. There are mitigating factors I take into account in reducing that penalty. The Defendant has pleaded guilty at the earliest opportunity in all the matters. As the Prosecutor pointed out, a plea of guilty does entitle the Defendant to a discount in penalty under s 22 of the Crimes Sentencing Procedure Act 1999 in the range of ten to twenty-five percent. Relying on the guideline judgment of R v Thompson (2000) 49 NSWLR 383 I consider a discount in the highest range is warranted given the early guilty plea in all the matters, although I note that the utilitarian value of the plea should be reduced in part because of the high likelihood of success to the prosecution in the matter.

I consider that the Defendant has expressed contrition and remorse and I take that into account in relation to the mitigating matters before me. I also note that there is no prior record of the Defendant, which I am informed has been in the business of property development for some four or five years. I have also been informed that the Prosecutor's costs are considerable in this matter being in the range of $30,000. This is a lot given the relatively low level of criminality in this matter and I will also take that into account.

I take into account that the Defendant has taken steps to reduce sediment loss from a large building site and that the Defendant considered these to be adequate. It appears the Defendant had given consideration to its obligations in this regard, even though such consideration was ultimately unsuccessful, as is demonstrated by these offences.

In the circumstances, I think the Defendant's penalty should be discounted by a total of thirty-five percent for each offence. I therefore consider the appropriate fine for each offence should be discounted to $6500.

I apply the totality principle to ensure that the overall level of penalty reflects the level of criminality appropriate to five closely related offences. I consider therefore the following penalties should apply. (i) In relation to matter 50060, that is the matter which was committed on 20 January 2003, the penalty should be $6500. (ii) In relation to matter 50088, which was committed on 14 February 2003, a penalty of $4500 should be imposed. (iii) In matter 50091, also dated 14 February 2003, I consider a penalty of $1000 should be imposed. (iv) In relation to matter 50090, which related to 20 March 2003, I consider a penalty of $2500 should be imposed. (v) In matter 50089, dated 17 April 2003, I consider a penalty of $1000 should be imposed.

Orders 44. The Court orders that: 1. The Defendant is convicted of the offences with which it is charged. 2. In matter no 50060 of 2003 the Defendant is fined the sum of $6,500 to be paid to the Registrar of the Court within 28 days of today's date. 3. In matter no 50088 of 2003 the Defendant is fined the sum of $4,500 to be paid to the Registrar of the Court within 28 days of today's date. 4. In matter no 50091 of 2003 the Defendant is fined the sum of $1,000 to be paid to the Registrar of the Court within 28 days of today's date. 5. In matter no 50090 of 2003 the Defendant is fined the sum of $2,500 to be paid to the Registrar of the Court within 28 days of today's date. 6. In matter no 50089 of 2003 the Defendant is fined the sum of $1,000 to be paid to the Registrar of the Court within 28 days of today's date. 7. The Defendant must pay the Prosecutor's costs of the proceedings against it, as agreed or assessed. 8. The exhibits may be returned, except exhibit A which is to remain on the Court's file.

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