The Council of the City of Ryde v Felici

Land and Environment Court (NSW)|2009-03-10|Before: Pain J, Mr J, Annexures P

CITATION : The Council of the City of Ryde v Felici [2009] NSWLEC 27

PROSECUTOR PARTIES : The Council of the City of Ryde DEFENDANT Gianfranco Felici

KEY ISSUES: PROSECUTION :- carrying out development without consent - alteration to existing home and addition of garage - offence at less serious end of spectrum - no environmental harm - s 10 not applied - mitigating factors - appropriate penalty

Axer Pty Ltd v Environment Protection Authority (1993) 113 LGERA 357 Bentley v BGP Properties Pty Ltd (2006) 145 LGERA 234 Blue Mountains City Council v Carlon [2008] NSWLEC 296 Byres v Leichhardt Municipal Council [2006] NSWLEC 82 Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 The Council of the Municipality of Kiama v Gerringong Developments Pty Limited [2007] NSWLEC 257 Gittany Constructions Pty Ltd v Sutherland Shire Council (2006) 145 LGERA 189 CASES CITED: Hunter's Hill Council v Touma [2008] NSWLEC 227 Maitland City Council v Link Building Services Pty Limited [2008] NSWLEC 71 Mosman Municipal Council v Menai Excavations Pty Ltd (2002) 122 LGERA 89 R v Sharma (2002) 54 NSWLR 300 R v Thomson; R v Houlton (2000) 49 NSWLR 383 Veen v The Queen [No. 2] (1988) 164 CLR 465 Willoughby City Council v P and V Masonry Pty Limited [2003] NSWLEC 312 Woollahra Municipal Council v Byrnes and Consolidated Byrnes Holdings Pty Ltd [2002] NSWLEC 125

PROSECUTOR Mr J Strati (solicitor) SOLICITORS LEGAL REPRESENTATIVES: The Council of the City of Ryde

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

50093 of 2008 The Council of the City of Ryde v Felici

JUDGMENT 1 Her Honour: The Defendant has pleaded guilty to the charge that he committed an offence under s 125(1) of the Environmental Planning and Assessment Act 1979 (the EP&A Act) on or about 4 January 2007 at Ryde in that he carried out development that was forbidden to be done by s 76A(1) of the Act. That development required development consent pursuant to cl 22 of the Ryde Planning Scheme Ordinance 1979, and was carried out without development consent having been obtained from the Prosecutor. The Defendant represented himself at the sentencing hearing.

2 The maximum penalty applicable for such an offence is $1.1 million. As the Defendant has pleaded guilty the Prosecutor can be considered to have proved the essential elements of the offence. It is now necessary to sentence the Defendant. The offence is one of strict liability so that no mental element forms part of the elements of the offence. Facts 3 The parties have agreed a Statement of Agreed Facts (SOAF) as follows:

The Defendant was born in Italy [in] 1956.
The Defendant learnt his trade as a builder in Italy.
In or about October 1998, the Defendant emigrated to Australia where he has lived ever since.
The Defendant is self-employed in the building industry. He primarily performs renovation work, particularly pool renovations.
The Defendant is the owner of [property at] Ryde ("Premises") which he has owned since about September 2005 (see Annexures P & Q to the Affidavit of Peter Lupevski sworn 18 December 2008 ("Affidavit")).
In or about August or September 2006, the Defendant retained the services of an architect, Mr Tony McLain, to prepare and lodge a development application with the Prosecutor seeking approval for alterations and additions to the Premises.
The Defendant gave Mr McLain owner's consent to lodge such a development application on 2 November 2006 by signing a development application form at that time (see Annexure A to the Affidavit).
Mr McLain lodged a development application with Council on 8 December 2006 ("DA") (see Annexure A to the Affidavit).
The Defendant had arranged for his son and daughter to visit the Defendant on 20 December 2006. The Defendant's son and daughter resided in Italy with their mother.
The Defendant wished to have the Premises renovated to an extent that it would be ready for his children when they arrived from Italy. To this end, in or about November 2006, the Defendant commenced work on the Premises. No development consent was in force at this time nor at any time throughout the carrying out of the works.
By the time the Defendant's children arrived from Italy, the Defendant had carried out all work shown in colour on the plans lodged with the DA (see page 35 of the Affidavit) ("DA Plans") other than some minor fitout works in the bathroom/laundry.
All works carried out by the Defendant are consistent with the works shown on the DA Plans.
On or about 12 August 2008, Mr McLain, on behalf of the Defendant, lodged an application for a building certificate ("BCA") with Council for works carried out without development consent.
The BCA is still under assessment although there appear good prospects that it will be issued subject to the lodgement of technical documentation with Council.
At this stage, Council has no intention to seek orders requiring the works the subject of the DA and the BC to be demolished.

4 The development application plans annexed to the affidavit of Mr Lupevski, compliance officer employed by the Council, were also relied on. These show that the development for which consent was sought was a new garage and extension to an existing room of the house.

Relevant sentencing considerations 5 Section 3A of the Crimes (Sentencing Procedure) Act 1999 (the CSP Act) sets out the purposes of sentencing. Section 3A provides: The purposes for which a court may impose a sentence on an offender are as follows: (a) to ensure that the offender is adequately punished for the offence, (b) to prevent crime by deterring the offender and other persons from committing similar offences, (c) to protect the community from the offender, (d) to promote the rehabilitation of the offender, (e) to make the offender accountable for his or her actions, (f) to denounce the conduct of the offender, (g) to recognise the harm done to the victim of the crime and the community. 6 The CSP Act (in particular, Pt 3 Div 1) contains provisions relevant to sentencing procedures. Section 21A of the CSP Act sets out aggravating, mitigating and other factors to be taken into account in sentencing. 7 In Bentley v BGP Properties Pty Ltd (2006) 145 LGERA 234 at [163] and Gittany Constructions Pty Ltd v Sutherland Shire Council (2006) 145 LGERA 189 at [110] relevant factors to determine the objective gravity of an offence were identified in the context of the EP&A Act. These include the maximum penalty, the objective harmfulness of the defendant's actions, the reasons for the commission of the offence and the state of mind of the offender. Other relevant factors can be consideration of the statutory scheme in which the offence provision occurs and the need to uphold the integrity of the planning and development control system under the EP&A Act; see Blue Mountains City Council v Carlon [2008] NSWLEC 296 at [48], Mosman Municipal Council v Menai Excavations Pty Ltd (2002) 122 LGERA 89 at [35]. 8 The EP&A Act's objectives include the promotion and orderly and economic use and development of land: s 5(a)(ii). Prosecutor's submissions 9 The Prosecutor submitted the offence committed was at the lower end of seriousness for this type of offence. The work carried out without development consent was in accordance with the plans submitted. There has been no environmental harm resulting from the offence. The reasons the work was done are set out in the SOAF at par 10 and 11. A building certificate application has been applied for and is likely to be issued. The Defendant has been cooperative with the Prosecutor and has expressed contrition. Defendant's submissions 10 The Defendant said he was sorry and had no intention of ever offending again.

Finding on penalty 11 As submitted by the Prosecutor there has been no harm to the environment. Regard must however be had to the culpability of the Defendant and the individual circumstances which led to the commission of the offence. The development application (DA) was lodged on 8 December 2006 after the owner's consent form was signed by the Defendant on 2 November 2006, yet the Defendant started work in late November 2006 before the DA had been filed. The Defendant should have allowed a far greater period for the lodging of the DA if he wanted to obtain development consent in time for the building work to be completed by 20 December 2006 when his children arrived. There is no suggestion that his actions were inadvertent, in other words, he acted deliberately in undertaking the work. The scope of building work undertaken without approval is not extensive. I agree with the Prosecutor that this offence is at the lower end of seriousness for offences of this type but is not trivial in the context of the legislative scheme for the control of development under the EP&A Act. 12 The Court is to have regard to the maximum penalty applicable, as this is an expression of the seriousness Parliament attributes to the offence: see Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 at 698. and [701] respectively that: The task of a court is to assess the relative seriousness of the offender's particular offence in relation to a worst case for which the maximum penalty is provided… ..the more serious the lasting environmental harm involved the more serious the offence and, ordinarily, the higher the penalty. 13 As recognised by Bignold J in Willoughby City Council v P and V Masonry Pty Limited [2003] NSWLEC 312 there is a broad spectrum of matters which can give rise to an offence under s 125 of the EP&A Act. This is clearly at the less serious end of that spectrum. General deterrence 14 Sentences made in relation to environmental offences must embrace powerful considerations of general deterrence: see Axer Pty Ltd v Environment Protection Authority (1993) 113 LGERA 357, per Badgery-Parker J at 367. In Axer, Mahoney J stated at 359: The quantum of the fines which the legislation allows to be imposed has no doubt been fixed not merely to indicate the seriousness with which such pollution is regarded but also to deter those engaged in such activities and to procure that they will take the precautions necessary to ensure that it does not occur. This is an important consideration in this matter given that the Defendant is a builder. Specific deterrence 15 In Veen v The Queen [No. 2] (1988) 164 CLR 465 at 477 the majority judgment of Mason CJ, Brennan, Dawson and Toohey JJ stated that past criminal behaviour is relevant in sentencing: to show whether the instant offence is an uncharacteristic aberration or whether the offender has manifested in his commission of the instant offence a continuing attitude of disobedience of the law .

16 In this case the Defendant is a builder and has been since coming to Australia in 1998 from Italy. I accept his oral evidence that he is unlikely to reoffend. This is his first conviction. I do not consider that specific deterrence is a relevant factor in this particular case as there is not a course of conduct which suggests that there is "a continuing attitude of disobedience of the law" per R v Veen.

Section 10 Crimes (Sentencing Procedure) Act 1999 17 Section 10 of the CSP Act relevantly provides: 10(1) Without proceeding to conviction, a court that finds a person guilty of an offence may make either 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 Factors to take into account (s 10(3)): 18 In deciding whether to make an order referred to in s 10(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

19 As the Defendant did not have legal representation I drew s 10 of the CSP Act to his attention in case he wished to make an application that it ought apply to him in this case. He did refer to s 10 but did not make any submissions to support the application of that section. While the immediate impact of the offence is minor given that no environmental harm has resulted from it, the Defendant is a builder and engaged in an area of work in which the requirement to comply with the EP&A Act is important. I do not consider the offence is trivial in nature given the need to uphold the EP&A Act to ensure orderly development throughout NSW and his actions were deliberate. The circumstance that he wished to complete the building work before his children arrived for a visit is not extenuating. There is otherwise no aspect of his character, antecedents, age, health or mental condition which has been referred to which suggests he should have the benefit of s 10.

Evenhandedness 20 A principle of sentencing is consistency of sentencing so that like cases should receive like penalties. Consideration of similar cases can be of assistance in informing the range of penalty which should be considered, subject always to the need to consider the individual circumstances of a particular case. 21 In Woollahra Municipal Council v Byrnes and Consolidated Byrnes Holdings Pty Ltd [2002] NSWLEC 125 a swimming pool was constructed without development consent. Consent had been sought after construction began but was refused. It was found that the defendants deliberately broke the law for their convenience. The individual defendant had a prior conviction. A plea of guilty was entered on the day of the hearing and the defendant expressed contrition and remorse. A penalty of $10,000 was imposed for the individual and $2,000 for the company.

22 Byres v Leichhardt Municipal Council [2006] NSWLEC 82 was an appeal to the Court against a penalty of $12,000 imposed by a local court for carrying out excavation and alteration of a subfloor area without development consent. The maximum penalty a local court can impose is $110,000. The development was extensive and may have compromised the integrity and stability of the house and its foundations. The work was undertaken negligently as it was carried out without regard to the health and safety of entrants to the house by someone with no building or engineering expertise. The council issued a stop work order. The appellant pleaded not guilty until three days before the local court hearing, there was little evidence of contrition and remorse and the appellant's cooperation was described as patchy. The appeal was dismissed and the penalty of $12,000 confirmed.

23 In The Council of the Municipality of Kiama v Gerringong Developments Pty Limited [2007] NSWLEC 257 alteration of a motel and restaurant was carried out without the necessary development consent. The changes included an increase in the number of units, three new terraces, ten new courtyards and construction of a new lap pool. A development application for the work had been lodged but not determined at the offence date. A stop work order was issued but not complied with. The defendant was aware the works were unauthorised. It was an aggravating circumstance that work continued after the stop work order. The company's director expressed contrition and remorse. Other mitigating factors included the early guilty plea, the defendant's good character and the cooperation with the prosecutor. A penalty of $20,000 was imposed.

24 In Maitland City Council v Link Building Services Pty Limited [2008] NSWLEC 71 45 items of building work on a hotel were carried out in a way inconsistent with a consent granted by the council. The sole director of the defendant stated he had no concern about non-compliance and it was held that the action was a deliberate and wilful contravention of the EP&A Act for commercial gain. Lloyd J described the breach as serious. No contrition or remorse was expressed. A penalty of $17,500 was imposed taking into account the very large amount of prosecutor's costs the defendant agreed to pay (approximately $80,000).

25 In Hunter's Hill Council v Touma [2008] NSWLEC 227 the defendant carried out development including the construction of office space, a kitchen and a bathroom prior to obtaining consent for the work. A development application had been lodged during the carrying out of the building work. The defendant expressed regret in not complying with the law but believed at the time consent would be forthcoming. The defendant had no previous convictions, had pleaded guilty at the earliest opportunity and had cooperated with authorities. A penalty of $15,000 was imposed. There is some similarity between the circumstances in Touma and this matter. Mitigating factors 26 There are a number of mitigating factors that should be taken into account to reduce any penalty, as referred to in s 21A(3) of the CSP Act.

Guilty plea (s 21A(3)(k) and s 22 of the CSP Act) 27 Firstly, the Defendant pleaded guilty at the earliest opportunity. A plea of guilty entitles the Defendant to a discount in penalty under s 22 of the CSP Act in the range of 10-25 per cent: R v Thomson; R v Houlton (2000) 49 NSWLR 383; R v Sharma (2002) 54 NSWLR 300. Contrition and remorse (s 21A(3)(i) of the CSP Act) 28 I accept that the Defendant has shown contrition and remorse. Cooperation with the Prosecutor (s 21A(3)(m) and s 23 of the CSP Act) 29 The Prosecutor submitted and I accept that the Defendant cooperated with the Prosecutor.

Paid the Prosecutor's costs 30 The Defendant has agreed to pay the Prosecutor's costs of $1,100.

Lack of prior record (s 21A(3)(e) of the CSP Act) 31 The Defendant has no prior convictions.

32 The appropriate penalty in light of the objective and subjective matters referred to above is $16,000. Application for time to pay a fine can be made to the Registrar of this Court under s 10 of the Fines Act 1996. Orders 33 The Court orders that:

The Defendant is convicted of the offence with which he is charged.
The Defendant is fined the sum of $16,000 to be paid to the Registrar of the Court within 28 days of today's date.
The Defendant must pay the Prosecutor's costs of the proceedings of $1,100.
The 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.

(1993) 113 LGERA 357

(2006) 145 LGERA 234

(2006) 145 LGERA 189

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