Thaler v Cooma Monaro Shire Council

Land and Environment Court (NSW)|2014-09-10|Before: Craig J

Solicitors: A Thaler in person (Appellant) Bradley Allen Love (Respondent) File Number(s): 60566 of 2013

Judgment

At the Cooma Local Court on 27 November 2012, Andrew Thaler was convicted of three offences against s 125(1) of the Environmental Planning and Assessment Act 1979 (NSW) (the EPA Act). Mr Thaler appeals to this Court against those convictions.
The offences with which Mr Thaler was charged were alleged to have occurred on 16 December 2011, 16 February 2012 and 4 May 2012. Each offence is said to involve the failure by Mr Thaler to cease using premises at Nimmitabel, contrary to an Order given under s 121B(1) of the EPA Act requiring that he cease using those premises in a manner that is inconsistent with the conditions of development consent granted for the use of those premises.

Appeal against conviction

Mr Thaler's appeal is brought as of right pursuant to s 31 of the Crimes (Appeal and Review) Act 2001 (NSW) (the Review Act). That section relevantly provides: "31 Appeals as of right (1) Any person who has been convicted or sentenced by the Local Court with respect to an environmental offence may appeal to the Land and Environment Court against the conviction or sentence."
An appeal brought under s 31(1) is required to be made within 28 days "after sentence is imposed". On the day that he was convicted and sentenced, Mr Thaler lodged his appeal to this Court against conviction.
Procedurally, it would appear that the notice of appeal is defective. A single notice of appeal was lodged in respect of all three convictions in the Local Court. As a conviction and penalty was entered and imposed in respect of each offence, I consider that a notice of appeal was required in respect of each conviction. However, that defect can be cured pursuant to s 62 of the Review Act.
Accordingly, I will proceed as if there is a separate appeal from the conviction entered in each of the three proceedings determined on 27 November 2012. However, in these reasons it is convenient to proceed, as the parties have done, by treating the appeals as if there is a single appeal. As will become apparent, all three proceedings were heard together both in the Local Court and in this Court, as the proof of all three offences turned upon a single or common course of events.
In the course of hearing this appeal, it became apparent that Mr Thaler not only sought to challenge the convictions against him, but also the penalty that was imposed as a consequence of those convictions. While the notice of appeal lodged on 27 November 2012 stated that Mr Thaler was appealing against the conviction imposed upon him "because I am not guilty", that part of the printed notice of appeal form, directed to an appeal against sentence "because the penalty is too severe", was struck through. Agitating issues directed to the severity of the penalties imposed renders it necessary to consider other provisions of the Review Act.
The provisions of s 31(1) make clear that an appeal against sentence (penalty), like an appeal against conviction, must be made within 28 days after the sentence is imposed (s 31(2)). Where a person entitled to appeal against conviction or sentence seeks to appeal outside the 28 day period, the entitlement so to do is governed by s 33 of the Review Act. Subsection (1) of s 33 allows an appeal outside the 28 day period to be made "but only by leave" of this Court. However, of present significance is subs (2) of s 33 which provides: "(2) An application for leave to appeal must be made within 3 months after the relevant conviction, sentence or order is made or imposed."
Neither s 33 nor any other provision of the Review Act affords a discretion to this Court to extend the three month period imposed by s 33(2) for seeking leave to appeal. The first intimation by Mr Thaler that a challenge was made to the quantum of the pecuniary penalties imposed at the time of conviction was that given in the course of hearing this appeal, by which time the three month period for seeking leave to appeal against sentence (penalty) had long since expired.
The right of appeal afforded by s 31 clearly acknowledges the distinction between an appeal against conviction and an appeal against sentence. While a person convicted of an offence may appeal in respect of both conviction and sentence (or penalty), the notice of appeal must so indicate. Here, reference to an appeal against sentence was expressly excluded from the notice of appeal. Any application to argue that the penalty imposed was too severe required either an additional notice of appeal within the 28 day period from the date of conviction or an application for leave to appeal brought within three months from that date. The oral application made in the course of the hearing neither satisfies those time requirements nor complies with the provisions of s 34(3) of the Review Act, identifying the requirements for an application for leave. As none of the requirements of the statutory provisions have been met, Mr Thaler's application for leave directed to sentence (penalty) cannot be entertained (Advanced Arbor Service Pty Ltd v Strathfield Municipal Council [2006] NSWLEC 485 at [24]-[26]).
Mr Thaler is not assisted in making his application by the provisions of s 62 of the Review Act. That section relevantly provides: "62 Effect of defect in notice of appeal or application for leave to appeal (1) A notice of appeal or application for leave to appeal is not invalid merely because of a defect, whether of substance or form, in the notice or application. (2) An appeal court hearing an appeal or application for leave to appeal may amend any such notice or application if it is satisfied that the notice or application is capable of amendment and ought to be amended."
It seems to me that where an application is made for leave to appeal (in this case against sentence) that is outside the time limited by s 33(2), no defect of substance or form in the application for leave to appeal is identified. Section 33(2) is clearly expressed to operate by imposing an absolute limit of three months within which leave to appeal can be sought. Once that period has expired, s 62 cannot be called in aid to extend time: the application is simply not capable of amendment to achieve that end (Denning v Department of Environment and Conservation [2007] NSWLEC 258; 153 LGERA 200 at [53]; Hussain v Liverpool City Council [2014] NSWLEC 45 at [20]-[23]).
When the constraint imposed by the statutory provisions directed to any argument as to penalty was explained to Mr Thaler, he complained that the form of notice of appeal that he completed had been provided to him by a registry officer at the Cooma Local Court. His notice of appeal had been completed in discussion with the registry officer who suggested that the portion of the form directed to an appeal against sentence be deleted. Mr Thaler accepted that suggestion.
The circumstance just related is unfortunate. In the absence of other evidence, I have no basis upon which to doubt what Mr Thaler has told me in this regard. However, that circumstance does not provide any foundation for me to entertain the present appeal as being one that includes an appeal against the severity of the penalties imposed. I am constrained by the statutory provisions that I have identified.
Accordingly, the determination of the appeal must be made on the basis that it is an appeal against conviction only. The conduct of such an appeal is governed by the provisions of s 37 of the Review Act. That section provides: "37 Appeals to be by way of rehearing on the evidence (1) An appeal against conviction is to be by way of rehearing on the basis of evidence given in the original Local Court proceedings, except as provided by section 38. (2) Fresh evidence may be given, but only by leave of the Land and Environment Court which may be granted only if the Court is satisfied that it is in the interests of justice that the fresh evidence be given. …".
In conducting an appeal conformably with s 37, this Court does not exercise its function by sitting in review of the decision that is the subject of the appeal. Rather, the Court is required to determine for itself whether the case for the prosecutor is proved to the requisite standard, based upon the evidence adduced before the Local Court and such further evidence as may be given in accordance with leave granted under s 37(2). In so doing, it is unnecessary to find any fault with the reasoning of the Magistrate, or even to review the Magistrate's decision (Gerondal v Eurobodalla Shire Council [2009] NSWLEC 160 at [6]).
As Pepper J observed in Mouawad v The Hills Shire Council [2013] NSWLEC 165 at [20]: "The role of this Court is to consider for itself afresh the appellant's culpability upon the evidence that was tendered in the court appealed from, in addition to any further evidence adduced with leave on the appeal."
The power of the Court to determine an appeal is stated in s 39 of the Review Act. Subsection (1) relevantly empowers the Court on appeal against conviction either to set aside the conviction or dismiss the appeal. For reasons that will become apparent, the evidence adduced for the purpose of the rehearing before me establishes that the offences with which Mr Thaler was charged are established and his conviction should stand. As a consequence, the only power available to me under s 39(1) is to dismiss the appeal.

Conduct of proceedings in the Local Court and in this Court

Both in the Local Court and in this Court, Mr Thaler was self-represented. That circumstance had consequences for the way in which the proceedings were conducted in both courts.
The three prosecutions against Mr Thaler came before Dick LCM on 27 November 2012. Before the matters were formally called for hearing, Mr Thaler made an application that his Honour recuse himself from hearing the prosecutions on the basis of apprehended bias. His application was made in what can only be described as unconstrained and robust terms, directed to earlier proceedings in which Mr Thaler had appeared before his Honour.
The transcript reveals that Mr Thaler was given considerable latitude in making his application for recusal. Having heard the application, his Honour immediately announced that he declined to recuse himself. In so doing he stated that the earlier proceeding in which Mr Thaler was involved required only the determination of a "matter of law", there being no assessment of "character".
Following that determination, the three prosecutions were called for hearing. The transcript then records the following exchange: "HIS HONOUR: There are three matters before the Court. They relate in substance to essentially the same description of offence. The allegations involve offences on 16 December 2011, 16 February 2012 and 4 May 2012. Mr Thaler, would you like to participate in the hearing of those matters? ACCUSED: I will not participate in those hearings because I will not have you hear it. You are not applying the principles of justice. HIS HONOUR: I have noted the papers that Mr Thaler refuses to participate in the hearings. On that basis I will proceed ex parte, …" (Local Court Tcpt 1:17-26)
Following that exchange, the solicitor appearing for the Council tendered the documentary evidence upon which it relied and called Mr P Smith, the Council's Director of Environmental Services, to give short explanatory evidence of some of the tendered documents, including Mr Smith's own statement of evidence. Following receipt of the Council's evidence, the transcript records that the learned Magistrate took a short adjournment to consider the evidence, together with written submissions provided to him by the Council's solicitor.
Following the adjournment, the Magistrate proceeded to deliver his decision, convicted Mr Thaler of each offence as charged and imposed the penalties to which I have earlier referred.
During this entire process, Mr Thaler remained in court, apparently seated at the bar table. Indeed, the transcript records that during the course of delivering his reasons for decision, the Magistrate was interrupted by Mr Thaler. Following that interruption, the Magistrate said to Mr Thaler (Local Court Tcpt 8:27-29): "HIS HONOUR: You refused to participate in a hearing and I've allowed you to remain at the table as a courtesy, but if you interrupt in the delivering of the judgment then I would have to ask you to leave." The delivery of reasons continued without further interruption.
That course of events in the Cooma Local Court has, or has had, two consequences for the conduct of the present appeal. First, it founded an application by the Council to strike out the appeal as incompetent, on the basis that s 32(1) of the Review Act applied. That section required that where a person was convicted "in the person's absence", an appeal to this Court could only be brought by leave and "only on a ground that involves a question of law alone". No leave had been sought and no question of law had been identified as a consequence of which the appeal was claimed to be incompetent. The Council's application was rejected by Biscoe J (Thaler v Cooma Monaro Shire Council [2013] NSWLEC 126).
The second and more important consequence of the course taken in the Local Court for present purposes arises from the provisions of s 37 of the Review Act to which earlier reference has been made. The only evidence upon which this Court can determine Mr Thaler's appeal is the evidence tendered by the Council on 27 November 2012 before the Cooma Local Court, subject to any further evidence that Mr Thaler is given leave to adduce. The latter qualification directed to evidence that may be given by leave requires elaboration, having regard to the events that took place leading to the final hearing of the appeal before me.
After Mr Thaler's appeal was filed in this Court, directions were made requiring that he file and serve evidence which he would seek leave to adduce and also to provide submissions both in support of that leave and submissions in support of his appeal. Although there were statements made by Mr Thaler that these documents would be forthcoming, neither was provided.
The appeal was first fixed for hearing on 12 and 13 May 2014. However, that hearing was vacated by Sheahan J on 8 May 2014 in response to Mr Thaler's motion seeking an order to that effect (Thaler v Cooma Monaro Shire Council (No 2) [2014] NSWLEC 51). At that time, his Honour set a new timetable for Mr Thaler to provide both the evidence for which leave would be sought and his submissions in support of the appeal, observing that Mr Thaler could not expect "any further extension" (at [19]). His Honour also observed that the vacation of the hearing was "squarely the result of the appellant's continued failure to comply with the amended timetable(s) to which he [had] agreed" (at [18]). His Honour recorded the statement of Mr Thaler that he has "1,000 pages of material to place before the Court" (at [6]). Notwithstanding the admonition given by his Honour that the Court's direction for the provision of the material was required to be observed, no such material was forthcoming.
When the hearing of the appeal commenced before me, it quickly became apparent that Mr Thaler did not understand that his appeal was to be conducted conformably with s 37 of the Review Act. His lengthy opening statement, directed to the conduct of Council staff, the Council's solicitor who appeared before the Local Court, and particularly the conduct of the presiding Magistrate, made clear his expectation that I would review that conduct and conclude that his conviction could not be sustained. In short, his understanding clearly was that I would sit in review of the Magistrate's failure to recuse himself, as Mr Thaler had applied for him to do.
As a consequence, I provided Mr Thaler with a copy of those provisions of the Review Act to which I have earlier referred, particularly emphasising the provisions of s 37 and the substance of the authorities that reflected the function of this Court in hearing and determining an appeal under s 31(1) of the Review Act. When asked whether he was proposing to challenge the evidence led before the Local Court, directed to the commission of the offences with which he was charged, Mr Thaler stated that the facts adduced were not challenged by him. What he regarded as his "defence" was, in essence, directed to a complaint that the prosecution of the offences was contrary to an agreement that he had reached in discussion with the former Mayor of the Council (who was now deceased), and that the institution of proceedings was the consequence of vindictive conduct on the part of a number of Councillors or on the part of Council employees.
At the hearing, Mr Thaler sought leave to adduce evidence, much of which was directed either to the agreement said to have been reached with the former Mayor or directed to the conduct of Councillors and Council staff. I rejected a large portion of this evidence as I was not satisfied that it was in the interests of justice for that evidence to be given. Apart from doubting its relevance, I considered that ample opportunity had been given to Mr Thaler to identify the evidence upon which he would wish to rely, having regard to the directions that had been given on a number of occasions prior to commencement of the hearing of the appeal. His failure to have complied with those directions weighed against any further indulgence being granted, particularly as the Council indicated that in the absence of any foreknowledge of that evidence, it was not in a position to meet it at the hearing.
However, it occurred to me that some of the evidence upon which Mr Thaler sought to rely may be relevant to the exercise of discretion available under s 10(1) of the Crimes (Sentencing Procedure) Act 1999 (NSW) (the Sentencing Act). The provisions of s 10 were explained to Mr Thaler. I invited him to reduce to writing an outline of the evidence that he would wish to give or lead in that regard and, at the end of the first hearing day, to provide that document to the Council's counsel overnight so that consideration could be given to allowing all or some part of that evidence to be adduced. The Council, through its counsel, agreed to cooperate in that regard.
At the beginning of the second day of hearing I was taken through the material that Mr Thaler had prepared, together with an indication from the Council as to those parts of the evidence that, in the time available, it could appropriately address. As a consequence, I gave leave to Mr Thaler to adduce some of that evidence where no prejudice was occasioned to the Council in addressing it. However, I made clear that in allowing that evidence to be given, its content and relevance was confined to supporting any submission sought to be made by Mr Thaler that I should apply the provisions of s 10 of the Sentencing Act when determining whether his conviction should stand.

Evidence of the offences

The evidence before me was that tendered in the Local Court. It comprised what was described as a bundle of documents (Exhibit A), a statement of evidence from Peter Smith dated 5 November 2012 (Exhibit B) and the transcript of the hearing before the Local Court on 27 November 2012 (Exhibit D). A letter from the solicitors for the Council to Mr Thaler dated 9 November 2012 (Exhibit C), also tendered before the Local Court, is of no consequence to the decision that I am required to make. As I have earlier recorded, the facts emerging from that evidence are uncontroversial.
The land in question is more particularly described as being Lots 179-183, 185-189 DP 756849 and Lot 1 DP 248788 (the Property). The Property, located on the Monaro Highway at Nimmitabel, was acquired by Mr Thaler and his wife in 2009.
On 26 February 1997, development consent was granted by the Council for use of the Property and the improvements on it as a materials recycling facility. Conditions 10 and 15 of the development consent respectively provide: "10 No materials excepting glass in "skip" type containers shall be stored externally to the building. All processed recyclables are to be transported to market as soon as possible - storage on site of any recyclables is to be kept to a minimum. Storage of any other type such as scrap metal, car bodies or tyres or the like shall not be permitted under any circumstances." "15 The intersection of the access road to the site and the Monaro Highway shall be designed and constructed as a BAL/BAR intersection with bitumen sealing to property boundary from existing edge of bitumen. Design plans of the proposed intersection shall be prepared, submitted to approved [sic] by Council prior to a commencement of construction."
In his statement of evidence, Mr Smith explained that the acronym "BAL" refers to a "Basic Left Hand Turn" and the acronym "BAR" refers to a "Basic Right Hand Turn". Mr Smith's statement also records that condition 15 was imposed "to improve traffic safety following a recommendation to Council by the Local Traffic Committee". He also stated that a BAL/BAR intersection requires the provision of a widened road shoulder to provide room for vehicles to turn without impeding through traffic.
The explanation of the intersection required by condition 15 was further elaborated in oral evidence before the Local Court. Mr Smith described the BAL/BAR road treatments as being required "to enable vehicle traffic to pass safely if a heavy vehicle, for example, was turning from something like a highway into another property" (Local Court Tcpt 5:47-49). The shoulder widening for a given length on either side of the intersection from the Highway into the Property facilitated easier movement into the Property.
Traffic counts for this section of the Highway produced as part of Mr Smith's statement to the Local Court indicated the Highway to be "fairly heavily trafficked". Those counts were seen to support the imposition of condition 15 and, according to Mr Smith's understanding, were a usual requirement of the Roads and Traffic Authority for an intersection of the kind contemplated.
On 4 August 2010, the Council gave Mr and Mrs Thaler notice of an intention to issue an Order pursuant to Item 1 of the Table to s 121B(1) of the EPA Act. In that notice, the Council explained that the Order was proposed to be given because the Property was being used in a manner that did not accord with conditions 10 and 15 of the development consent. Any submissions that Mr and Mrs Thaler wished to make in relation to the proposed Order were invited.
On 25 November 2010 an Order under s 121B(1) of the EPA Act was given to Mr and Mrs Thaler. The Order was expressed to be given pursuant to that section and required: "… that you, within 180 days of the date of this Order, cease using the Property specified in Schedule 1 of this Order in a manner that is inconsistent with the conditions of Development Consent No 21/97 issued on 26 February 1997".
The reasons stated in the Order were that the Property was being used in a manner "that is not in accordance" with both condition 10 and condition 15 of the development consent dated 26 February 1997. The terms of each condition were quoted in the Order.
As a result of representations made to the Council by Mr Thaler, time for compliance with the Order was extended until 15 November 2011.
On 7 December 2011, Mr Thaler sent an email to the Council, referring to an oral presentation that he had made in the Council's "open forum" on 14 June 2011, explaining that he would be prepared to submit a "Development Consent Modification Application" in order to "formalise the deletion of the two conditions of consent that the Order seeks to address". His email also states that he would make that application only on condition "that I be guaranteed that the planning department" would not impose any new conditions, relying upon the modification application so to do. The Council's response to that email, by letter signed on behalf of the Council by Mr Smith, indicated that until an application for modification was made "with precise details of the modification sought", it was not possible to indicate what conditions might be applied. No application to modify the consent was subsequently made by or on behalf of Mr Thaler.
The Property was inspected by Mr Smith on 16 December 2011. He observed that no BAL/BAR intersection had been constructed at the access point to the Property from the Monaro Highway as condition 15 required. When viewed from the Highway, Mr Smith observed that "various items, including different accumulations of what appeared to be scrap metal" were being stored externally "to the shed buildings" on the Property. As a consequence, he issued Penalty Infringement Notice 3029832814 to Mr Thaler on 19 December 2011.
Mr Smith's authority to issue and serve that Notice in his capacity as Director of Environmental Services was proved in evidence (cl 284(3)(c) of the Environmental Planning and Assessment Regulation 2000 (NSW)) (the Regulation). The offence for which the Penalty Infringement Notice was issued was one that was prescribed for the purpose of s 127A of the EPA Act by cl 284 and Schedule 5 to the Regulation.
Mr Smith carried out a further inspection of the Property on 16 February 2012. Once again he observed that the BAL/BAR intersection had not been constructed at the access point to the Property from the Monaro Highway. He also observed items, including accumulations of what appeared to be scrap metal material, stored externally to the buildings on the Property.
As a consequence of his observations on that date, a further Penalty Infringement Notice 3029832989 was issued by him on 20 February 2012.
A further inspection of the Property was carried out on 4 May 2012 by Mark Williams, another Council employee. Mr Williams photographed the Property at that time. According to the photographs, the BAL/BAR intersection had not been constructed and what appeared to be scrap metal material continued to be stored externally to the buildings on the Property. As a consequence of his observations, Penalty Infringement Notice 3029834620 was issued by Mr Smith on 8 May 2012.

Commission of the offences by Mr Thaler is established

As I have indicated, all three offences for which penalty infringement notices were first issued arise under 125(1) of the EPA Act. That section relevantly provides: "125 Offences against this Act and the regulations (1) Where any matter or thing is by or under this Act … directed or forbidden to be done … and that matter or thing if so directed to be done remains undone, or if so forbidden to be done is done, a person offending against that direction or prohibition shall be guilty of an offence against this Act."
The forbidden conduct that engages the provisions of s 125(1) in the present case is that which is the subject of the Order given to Mr Thaler under s 121B(1) of the EPA Act, which provides: "121B Orders that may be given by consent authority or by Minister etc (1) An order may be given to a person by: … (a) a council … … to do or refrain from doing a thing specified in the following Table if the circumstances specified opposite it in Column 2 of the Table exist and the person comes within the description opposite it in Column 3 of the Table. Column 1 Column 2 Column 3 To do what? In what circumstances? To whom? (a) Premises are being used for a purpose that is prohibited 1 To cease using premises for a purpose specified in the order (b) Premises are being used for a purpose for which develop-ment consent is required but has not been obtained Owner of premises, or person by whom premises are being used for the purpose specified in the order" (c) Premises are being used in contravention of the conditions of a development consent

As the content of s 121B Order given to Mr Thaler and his wife specified, each of them was directed, as owner of the Property, to cease using the Property within 180 days of the date of the Order in a manner that was "inconsistent with" conditions 10 and 15 of the 1997 development consent. Inclusion of the terms of those conditions within the Order made clear to Mr Thaler that his use of the Property must cease within the nominated time while ever the purpose for which the 1997 development consent was granted, namely a materials recycling facility, was carried out without observing conditions 10 and 15 of that development consent.
The evidence makes clear that on each of the three dates identified in the charges, conditions 10 and 15 were not being observed. No intersection that conformed with condition 15 had been constructed and the materials being stored outside the building(s) on the Property comprised materials other than glass in "skip" type containers.
Mr Thaler accepted that the requirement imposed by the s 121B Order had not been observed on the dates charged, notwithstanding that he continued to use the premises as a materials recycling facility. In that context, the transcript of proceedings before me should be noted. At Tcpt 19:45 I addressed Mr Thaler: "So the evidence that is relevant to be considered is obviously that which has been tendered but directed to whether or not the offences against the Environmental Planning and Assessment Act have been established".
The transcript records the following response (Tcpt 19:49-20:8): "APPELLANT: Well they have. There's a photograph in there showing shit on the ground outside the shed and there's another photograph showing that the driveway doesn't have a BAL/BAR, there you go. I've got no argument with you there, I'm not an idiot. I don't have any argument against them. On the strict view of what you've just said, under the Act there is a condition in their consent which says, blah, blah, blah, blah, blah. Not to store material external to the shed except glass in skip like containers. And the other condition was to construct a BAL/BAR intersection per whatever regulation. They are the two conditions that are the offending conditions and we don't comply with them, we never have, we were never going to."
Following that statement, Mr Thaler acknowledged receipt of the notice from the Council of its intention to issue an Order under s 121B of the EPA Act, followed by the Order issued under that section on 25 November 2010. Having received that Order, Mr Thaler also acknowledged that time for compliance was extended "because we were having lots of arguments, I made repeated representations to council and I did not comply with that notice" (Tcpt 21:28-30). Mr Thaler stated that he did not ignore the Order but rather "represented strongly against the utility of it" (Tcpt 21:34).
Mr Thaler's refusal to comply with the Order was based on the agreement said to have been reached with the then Mayor that conditions 10 and 15 of the 1997 development consent would not be enforced. He claimed that the agreement was reached prior to completing the purchase of the Property in 2009. As will later be explained, I did not allow Mr Thaler to give evidence that established the existence of such an agreement.
An offence against s 125(1) of the EPA Act is an offence of strict liability. If that which is directed to be done under the EPA Act is not done, an offence against the section will be established. In the present case, the Council was empowered by s 121B to give the Order that it did on 25 November 2010, directing the cessation of use of the Property in contravention of conditions 10 and 15 of the development consent. Ultimately, it is not in contest that Mr Thaler did not cease using the Property, notwithstanding that the requirements of conditions 10 and 15 were not met. That continued use on each of the dates alleged was "inconsistent" with those conditions.
A development consent, such as the 1997 development consent granted for use of the Property for the purpose of a materials recycling facility, is not personal to the applicant for that consent but rather attaches to the property to which it relates. As such, it has an enduring nature, said to be in the nature of a document of title (House of Peace Pty Ltd v Bankstown City Council [2000] NSWCA 44; 48 NSWLR 498 at [423]). Conditions attaching to such a development consent cannot be varied or compliance waived by agreement between the holder of a consent for the time being and a council in whose local government area the property is located. Rather, the EPA Act itself provides the mechanism for seeking any variation of conditions, either by an application for modification of that consent under s 96 or by making a further development application to modify the existing consent. Whatever relevance, if any, an agreement between Mr Thaler and the former Mayor may have as to penalty, that agreement can have no bearing upon the obligation imposed by the EPA Act to carry out the development in conformity with the development consent and the conditions that attach to it (s 76A(1)). Further, no such agreement can act as a bar to a prosecution when a direction is given, conformably with the EPA Act, to comply with those conditions and that direction is not observed.
Applying those principles that I have discussed to the facts that have been established, both by the evidence tendered and by concession candidly made by Mr Thaler, I am satisfied beyond reasonable doubt that each of the offences with which Mr Thaler has been charged has been proved.

Application of s 10 of the Crimes (Sentencing Procedure) Act

The matters addressed to me by Mr Thaler, initially from the bar table, ranged broadly over a miscellany of topics, generally reflecting his dissatisfaction with the manner in which the Council had addressed not only his grievances concerning his use of the Property but also other topics of community concern. While much of what he sought to put could have no bearing at all upon the conviction against which he has appealed, as I earlier observed it did seem that some of his statements could potentially be relevant to an application under s 10 of the Sentencing Act. In deference to his position as a litigant in person, I provided Mr Thaler with a copy of s 10 and invited him to identify evidence that he would seek leave to give in support of an application under that section.
Although the Council ultimately submitted that this was not an appropriate case for the application of s 10, its counsel did accept that, in principle, it was open to me to consider applying the section in an appeal against conviction. He was correct in so doing, having regard to the provisions of s 39(1) of the Review Act.
In Advanced Arbor Service Pty Ltd v Strathfield Municipal Council the Court was required to determine an appeal against sentence imposed in the Local Court. On the hearing of the appeal, the appellant sought to argue that s 10 of the Sentencing Act should be applied so that no conviction would be recorded against it.
The Chief Judge rejected the contention that such a course was open on an appeal against sentence. His Honour reasoned that in order for this Court, on appeal, to reconsider exercising the power available under s 10(1)(a), it would be necessary for the Court to set aside the conviction imposed by the Local Court. His Honour continued at [19]: "19 Such an order setting aside a conviction is available only on an appeal against conviction: s 39(1) of the Review Act. It is not available on an appeal against sentence only: see s 39(2) and the definition of sentence in s 3 of the Review Act. The sentence does not include the conviction itself." His Honour's observations in that case were followed by Pain J in Gerondal v Eurobodalla Shire Council, a case also brought under the Review Act in which the appeal was against conviction.
Notwithstanding the failure by Mr Thaler to comply with the directions given to him, over a period exceeding 12 months, requiring the filing and service of evidence and submissions upon which he proposed to rely, I did grant leave for evidence to be given on matters of potential relevance to an application under s 10 of the Sentencing Act. On some topics, the evidence that Mr Thaler sought to give was admitted by the Council, subject to relevance, while leave was given to adduce other evidence that the Council did not admit but was able to address, notwithstanding the short notice it was given of the intention to lead that evidence. Ultimately, that evidence took the form of particular admissions stated succinctly in paragraphs of Exhibit F or in other exhibits that were tendered by Mr Thaler without objection. It is that evidence that I will endeavour briefly to summarise.
In the early 1950s a hardwood sawmill was established on the Property and became known as Raynor Bros Sawmill. That sawmilling use continued until 1992.
The evidence does not reveal what use was made of the Property immediately following the closure of the sawmill. While the evidence does not reveal when the use of the Property as a materials recycling facility commenced, it is accepted that recycling activities were being conducted for some years prior to the purchase of the Property by Mr Thaler and his wife. The Environmental Impact Statement prepared to accompany the recycling facility development application, identified the applicant's intention to capture, process, collect, store and market domestic and commercial recyclables from both the Cooma Monaro Shire and the Snowy Mountains Shire.
Mr Thaler was involved in the operation of a recycling facility in Cooma prior to purchasing the Property. Before completing that purchase, he had a meeting with the then Mayor, Councillor Vin Good, Mr Smith and another officer of the Council. Although Council staff normally keep file notes as records of conversations between its officers and members of the public or proponents of development, no file note or records have been found on Council's files relating to that meeting. Given the failure of Mr Thaler to have identified the content of the discussion at the meeting as part of the evidence for which leave would be sought, coupled with the inability of the Council to address it at short notice by reason of that failure, I refused to give Mr Thaler leave to adduce evidence directed to that discussion.
However, Mr Thaler accepts that as a consequence of a meeting in about April 2009, he was provided with a copy of the 1997 development consent. Attached to the copy of the consent handed to him at that time, was a post-it note which read: "Hi Andrew Consent for recycling facility @ N'Bel attached. LEP has changed since then - 'scrapyard' type activities may be prohibited due to zoning - we need to look at this and see if we can find a way around it. Have a look through - maybe we can go through with you, me, Mark Adams to find a solution. Regards Peter Smith"
Prior to the issue of the penalty infringement notices to Mr Thaler, there was no record on the Council's files of any complaint having been made or received with respect to the activities being conducted on the Property. Subsequently, two complaints were received, one of a very minor nature and the other concerning the burning of wood on the Property. These were isolated incidents. The Council's records do not reveal any third party complaint having been made, either as to the road intersection between the Monaro Highway and the access road to the Property or as to the appearance of stored materials external to the building or buildings on the Property. Mr Thaler gave evidence that scrap metal was being stored outside the buildings prior to his purchase.
In carrying out recycling activities on the Property, from time to time Mr Thaler receives items that are too large to be accommodated in the existing building or buildings. These are illustrated in photographs tendered as Exhibit O. These items include large volume metal fuel storage tanks, commercially sized metal gas bottles and large electrical conductor insulators that appear to have been used in an electricity supply facility.
Over recent years, Mr Thaler has apparently been a regular visitor to the Council's offices, not only concerning the operation of the facility on the Property, but also concerning other activities in which the Council had, or Mr Thaler thought the Council should have, an interest. In September 2011, a memo was distributed to all staff by the General Manager, requiring that "any contact made by Mr Andrew Thaler to this administration be directed to the General Manager's office, and is to be done so in writing". The memo continued: "Mr Thaler is to have no direct contact either by telephone, email or in person with any Council staff member other than through the General Manager's office." The memo concluded by indicating that Mr Thaler had been advised of the General Manager's action.
That memo was followed one week later by a further memo from the General Manager to staff and Councillors. The memo explained that Mr Thaler should be afforded access to "normal" Council services, identified as being "borrowing resources from the library, accessing and utilising the landfill/tip, accessing and obtaining tender material etc, though he is to abide by reasonable customer interaction". The memo continued by describing conduct expected of Mr Thaler when dealing with Council staff and also indicating that a manual was being prepared, directed generally to the management of "unacceptable customer behaviour". The memo did not indicate that the manual was directed specifically to Mr Thaler.
The other recycling facility with which Mr Thaler was involved at the time of acquiring the Property was located in Polo Flat, Cooma. That facility is described as neighbouring land on which the Council conducts its activities. The kind and size of items brought to the Polo Flat site for recycling were and are of the same kind as those brought for recycling at the Property. There had been many "long, arduous and repetitive arguments" between Mr Thaler and the Council about the type, size and scale of recycling work at Polo Flat when, in 2009, Mr Thaler and his wife acquired the Property.
By comparison with the Polo Flat site, Mr Thaler considers that the Property is more favourably located for a recycling facility. It is a large parcel of land with buildings centrally located and well removed from the boundaries. Buildings and activities are partially screened by trees growing along the south eastern side of the parcel extending down to the frontage with the Monaro Highway and for part way along the Highway frontage.
Condition 15 of the 1997 development consent is an original condition, imposed at the time of granting development consent. From the time the consent became operative, by commencement of use of the recycling facility, until the notice given to Mr Thaler in August 2010, the Council had not sought to enforce compliance with condition 15, requiring construction of the BAL/BAR intersection. The purpose of such an intersection is usually required to prevent trucks from having to move across the centre line of the roadway into oncoming traffic in order to make a tight left-hand turn into a right angled driveway. In the present case, that driveway is located approximately 200 metres from a 60 km/hour speed control sign on the boundary of Nimmitabel, with the consequence, so it is inferred by Mr Thaler, that traffic is likely to be travelling at a slower speed than would otherwise be the case on those sections of the Highway that are not specifically speed restricted.
In June 2011, Mr Thaler contacted Tim Webster of the Roads and Traffic Authority, posing a number of questions to him in relation to the BAL/BAR intersection required by condition 15. Mr Webster held the position of Development Assessment Officer with the Authority. It is unnecessary to quote the detail of all responses that Mr Webster gave to this inquiry. The substance of his response was that at the time at which the 1997 development consent was granted and in 2011, the requirement for an intersection of that design existed and still exists, particularly where the intersection is with a road carrying the volume of traffic counted in proximity to the Property along the Monaro Highway. While such an intersection may not be required on a "low volume" road, a road carrying traffic in excess of 1,000 vehicles per day would ordinarily require such an intersection. Traffic volume along the Highway in the vicinity of the Property in 2008 was 1,970 vehicles per day and that is likely to have increased to approximately 2,000 vehicles per day by 2011. The requirement for the BAL/BAR intersection imposed in the 1997 development consent accorded with a recommendation to that effect by the Local Traffic Committee to which the application had been referred. While an intersection of that type may not have been required when the sawmill commenced in the early 1950s, the introduction of a new activity in 1997 was the basis for imposing the requirement at that time.
The Environmental Impact Statement prepared to accompany the development application that resulted in the grant of the 1997 development consent identified the BAL/BAR intersection as being appropriate. It stated, in par 4.7, that the construction of that intersection would "allow safe entry and exit of all vehicles to the Highway".
Opposite to the Property intersection and intersecting with the Monaro Highway at an acute angle, is a strip of land that is said to be the old Highway alignment. This land is vested in the Council. From the aerial photograph tendered by Mr Thaler, this would now appear to be no more than an unsealed track. Although it was suggested by Mr Thaler that construction of the intersection required by condition 15 of the development consent would have implications for the old Highway intersection, no evidence to support this observation was provided by him.
Mr Thaler identified a site known as the Schmidt Quarry, located approximately 3 km from the Property, on which quarrying was carried out under a development consent granted by the Council. The Council accepted that the Schmidt Quarry operations have not always been undertaken in strict compliance with the conditions of that development consent. The Council did not accept that this evidence was relevant to the application of s 10 of the Sentencing Act. I agree. The fact that another entity may have breached conditions of a development consent without being prosecuted neither provides a defence to Mr Thaler nor founds the exercise of discretion under s 10.
Finally, Mr Thaler tendered a document recording the voting results for the Eden-Monaro Electorate in the 2013 Federal Election for which he was a candidate. I allowed the document to be tendered as being relevant to Mr Thaler's character but I did not allow it to be tendered for any other purpose. Mr Thaler wished to rely upon the document in order to contend that as another candidate for that election was a member of the Council, there was motive for instituting the present prosecutions so as to "knock out" Mr Thaler as a political opponent. There was no proper foundation to use the document for that purpose.

Application of the relevant facts to the provisions of s 10 of the Sentencing Act

As will be apparent, not all evidence that I allowed Mr Thaler, as an unrepresented litigant, to lead is relevant to the exercise of discretion under s 10 of the Sentencing Act. That section relevantly provides: "10 Dismissal of charges and conditional discharge of offender (1) Without proceeding to conviction, a court that finds a person guilty of an offence may make any one of the following orders: (a) an order directing that the relevant charge be dismissed, (b) an order discharging the person on condition that the person enter into a good behaviour bond for a term not exceeding 2 years, (c) an order discharging the person on condition that the person enter into an agreement to participate in an intervention program and to comply with any intervention plan arising out of the program. … (3) In deciding whether to make an order referred to in subsection (1), the court is to have regard to the following factors: (a) the person's character, antecedents, age, health and mental condition, (b) the trivial nature of the offence, (c) the extenuating circumstances in which the offence was committed, (d) any other matter that the court thinks proper to consider."
The principles relevant to the application of s 10 were considered by Biscoe J in Blue Mountains City Council v Carlon [2008] NSWLEC 296. The defendant in that case had pleaded guilty to an offence against s 125(1) of the EPA Act. The defendant sought an order under s 10(1) of the Sentencing Act. The principles identified by his Honour at [67]-[71] may be summarised as follows: 1. It is not necessary to the application of the section that the offence be characterised as trivial; all four factors identified in subs (3) of the section are intended to be disjunctive and non-exhaustive (R v Paris [2001] NSWCCA 83 at [42]). 2. The dismissal of charges under s 10 reflects the willingness of the legislature to provide first offenders, in certain circumstances, a second chance to maintain a reputation of good character (R v Van Nam Nguyen [2002] NSWCCA 183 at [50]. 3. None of the criteria in s 10(3) are conclusive but all must be taken into account (R v Paris at [43], [48], [49]; Attorney General's Application (No 3 of 2002) [2004] NSWCCA 303; 61 NSWLR 305 at [13]). 4. An offence against s 125(1) being an offence of strict liability, mens rea has no part to play, guilt being established by proof of the objective ingredients of the offence. Where the offence charged is one of strict liability, it is unusual for a defendant to receive the benefit of s 10, even if the defendant genuinely believed that the prohibited activity could be lawfully undertaken. The reasons for imposing a penalty, even where such a belief is held, have been stated as being: 1. to invoke the deterrent purpose of educating the offender and the community in the law's proscriptions so that the law will come to be known and obeyed; 2. to ensure that persons take proper steps to ascertain the lawfulness of their proposed conduct, and to enforce and give effect to the regime of planning controls imposed by the EPA Act (Mosman Municipal Council v Menai Excavations Pty Ltd [2002] NSWLEC 132; 122 LGERA 89 at [35]).
Having identified the principles, it is necessary to address the evidence relevant to the matters to which regard must be had conformably with s 10(3) of the Sentencing Act.
Mr Thaler acknowledges that he is a "rough diamond" who is hard working and a responsible member of the community. He is a responsible parent, married with three children who, along with his wife, came with him to the hearing of this appeal. His community interests have included standing as an independent candidate in the last Federal Election. He also plans to alter the materials recycling facility on the Property so that it becomes an energy generation plant which would benefit the local community.
None of that evidence was contradicted by the Council. However, it does point to the fact that in 2005 Mr Thaler was found guilty of contempt of court, for which he was fined the sum of $50,000 (Environment Protection Authority v Thaler [2005] NSWLEC 109). That charge arose from the failure by Mr Thaler to comply with orders of this Court, directed to the management of a waste facility at Queanbeyan.
Although Mr Thaler argued that the contempt charge was presently irrelevant, as he was a "victim" of a discriminatory prosecution, the fact that a substantial penalty was imposed for failure to comply with a court order is relevant to his "character" and "antecedents". It is therefore relevant to be considered by reference to s 10(3)(a) of the Sentencing Act.
Whether the offence should be categorised as "trivial" is a question to which I have given considerable thought. The failure of the Council to enforce compliance with conditions 10 and 15 of the 1997 development consent until 2010 has not been explained. In particular, the failure of the Council to require construction of the BAL/BAR intersection prior to 2010 is, as Mr Thaler submitted, capable of implying that a breach of the condition was seen by the Council to be trivial. Moreover, the fact that the Council had chosen to proceed against Mr Thaler by way of penalty infringement notices may also be seen as an acknowledgement by the Council that it did not regard the offence as other than trivial.
Against these matters must be weighed the evidence that the requirement to construct the BAL/BAR intersection was a requirement directed to road safety. That evidence was not only given by Mr Smith but it was also expressed in the text of the Environmental Impact Statement prepared in support of the development application for the materials recycling facility. Mr Webster of the Roads and Traffic Authority expressed a similar opinion in the 2011 email to Mr Thaler (Exhibit J) founded on recent traffic counts. While Mr Thaler gave evidence that there was minimal traffic presently generated by the manner in which he operated the recycling facility on the Property, the legal characteristic of the development consent as one attaching to the Property, rather than to Mr Thaler, requires an objective judgment of the need for compliance with the condition.
Further, if, as Mr Thaler suggests, conditions 10 and 15 had become "redundant", it was open to him to apply to modify the consent by seeking the deletion of those conditions. That course was identified to him by letter from the Council dated 8 December 2011 (Exhibit A, tab 14), that is prior to the first of the penalty infringement notices being issued. Mr Thaler's refusal to make such an application because the Council would not assure him that no other condition would be imposed when determining a modification application, is not a reason that sounds in his favour. The Council could not legally fetter its power to impose such a condition when determining an application made to it under the EPA Act.
Mr Thaler may well have believed that the Council or its staff were prejudiced against him, such that it would not act in accordance with law when determining any application that he made. The memos of September 2011 from the General Manager to staff (Exhibits G and H) to which I have earlier referred may be seen to support that belief. Whether that belief was justified was not explored in the evidence before me. Importantly, the law provided a remedy available to Mr Thaler if he was dissatisfied with the Council's determination of an application to modify the 1997 development consent by deleting conditions 10 and 15: he could appeal to have his application determined by this Court under s 97AA of the EPA Act.
I am conscious of the evidence given by Mr Thaler that when, in April 2009, he negotiated to purchase the Property, the former proprietor of the recycling facility stored scrap metal outside the buildings on the property, in apparent contravention of condition 10. Neither that fact, nor the fact that external storage had not attracted third party complaint, does not excuse Mr Thaler's later conduct in storing items outside the buildings in a manner that contravened condition 10. These facts do not demonstrate that the breach of condition 10 of itself should be regarded as trivial.
In summary, I do not consider that the failure of Mr Thaler to comply with the Order given to him in accordance with s 121B involved the commission of only trivial offences. Compliance with the conditions of the 1997 development consent was required unless and until those conditions were either amended or deleted in accordance with the provisions of the EPA Act. The circumstance that the Council sought to prosecute breaches of the Order by penalty infringement notices does not identify triviality. The latter circumstance may be relevant to the quantum of penalty to be imposed but does not demonstrate triviality.
I do not consider that there are extenuating circumstances in which the offences were committed: s 10(3)(c) of the Sentencing Act. Prior to completion of his purchase of the Property, Mr Thaler was provided with a copy of the 1997 development consent which included conditions 10 and 15 (Exhibit N). While he may have entertained a belief that the conditions would not be enforced, that belief must logically have been dispelled upon receipt of the Council's letter of 4 August 2010, stating its intention to issue an Order under s 121B and giving reasons for its intention to do so (Exhibit A, tab 10). Neither in response to that letter nor in response to the lengthy extension of time that he was given by the Council to comply with the Order, subsequently given on 25 November 2010, did Mr Thaler take the action available to him under the EPA Act to seek deletion of conditions 10 and 15 from the consent. Instead, he maintained either that he was not required to comply or would not comply with those conditions.
These events gainsay any suggestion that there were extenuating circumstances involved in the commission of the offence. Further, I do not identify from the evidence of Mr Thaler any other matters relevant to the exercise of discretion under s 10. The circumstances that the Property may have been a better site for the conduct of a recycling facility than the existing site at Polo Flat is irrelevant to that exercise.
Having considered the provisions of s 10(3) of the Sentencing Act, I am not satisfied that this is an appropriate case in which to make an order under s 10(1)(a) of the Sentencing Act that the charges be dismissed. Accordingly, there is no basis upon which to set aside the conviction entered against Mr Thaler in the Cooma Local Court on 27 November 2012.

Costs

The Council seeks an order that Mr Thaler pay its costs of the appeal. Mr Thaler's response is to state that he is unable to afford the penalties imposed upon him by the Magistrate, let alone meet an order for costs in this Court. That circumstance may bear upon any application for time to pay pursuant to s 10 of the Fines Act 1996 (NSW); it does not impact on the power of the Court to make an order for the payment of costs.
The Council has been successful in defending the appeal brought by Mr Thaler. Its costs have been considerably increased by the number of times the appeal was listed for directions in an endeavour to secure Mr Thaler's compliance with orders made for the service of documents said by him to be relevant to the prosecution of his appeal.
Other than his impecuniosity, Mr Thaler did not advance any reason why the Council should not have an order for costs made in its favour. I propose to make such an order. As s 72 of the Review Act requires, I will state the time within which the costs must be paid.

Conclusion and Orders

For the reasons I have stated, Mr Thaler's appeal against conviction cannot be sustained. The evidence tendered before the Local Court and again before me, directed to the commission of the offences with which he was charged, was not contradicted by any evidence given by Mr Thaler. As I earlier indicated, I am satisfied that the evidence established, beyond reasonable doubt, that the offences with which Mr Thaler is charged, have been proved. Moreover, the evidence does not establish a proper basis for application of s 10 of the Sentencing Act, with the consequence that the conviction recorded against Mr Thaler must stand.
Accordingly, I make the following orders: 1. Appeal against conviction in each of Cooma Local Court proceedings 12/201083, 12/146618 and 12/80652 is dismissed. 2. Order that the appellant pay the respondent's costs of the appeal, the quantum of those costs, when agreed or determined, must be paid to the respondent within three months from the date of such agreement or within three months from the date of service upon the appellant of the determination of costs payable by him. 3. Exhibits may be returned.

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: 31 July 2015

Environmental Planning and Assessment Regulation 2000(NSW)

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (12 paragraphs)

Parties

Legislation Cited (5)

Cases Cited (14)

Cited By (1)