Willoughby City Council v P and V Masonry Pty Limited

Land and Environment Court (NSW)|2003-11-14|Before: Bignold J

CITATION : Willoughby City Council v P and V Masonry Pty Limited [2003] NSWLEC 312 PROSECUTOR: Willoughby City Council PARTIES : DEFENDANT: P and V Masonry Pty Limited FILE NUMBER(S) : 50050 of 2003 CORAM: Bignold J KEY ISSUES: Environmental Offences :- guilty plea-carrying out development without consent-mitigating factors LEGISLATION CITED: Environmental Planning and Assessment Act 1979 ss76A, 125, 126, 127 Crimes (Sentencing Procedure) Act 1999, ss 3A, 10, 21A Canterbury City Council v Saad (2001) 112 LGERA 429; Cooper v Coffs Harbour Council (1997) 97LGERA 125; Ireland v Cessnock City Council (1999) 103 LGERA 285; CASES CITED: Mosman Municipal Council v Menai Excavations Pty Limited (2002) LGERA 89; Ryde City Council v Calleiga (1998) 99 LGERA 360; State Rail Authority of NSW v Hunter Water Board (1992) 78 LGERA 342; Warringah Council v McNamee 2003) NSWLEC 28; Willoughby City Council v Bechara (2003) 124 LGERA 416 DATES OF HEARING: 14/11/2003 DATE OF JUDGMENT: 11/14/2003

PROSECUTOR: Ms G Furness, Barrister SOLICITORS Mallesons Stephen Jaques

IN THE LAND AND Matter No. . 50050 of 2003 ENVIRONMENT COURT Coram: Bignold J OF NEW SOUTH WALES 14 November 2003

The Defendant has pleaded guilty to a charge that it did between 1 December 2002 and 12 May 2003 commit an offence against the Environmental Planning and Assessment Act 1979 (the EP&A Act) s 125 in that it did carry out development without first having obtained development consent in circumstances where pursuant to s 76A(1)(a) of that Act and cl 14C(2) of the Willoughby Local Environmental Plan 1995 (the LEP) that development could not be carried out without development consent first having been obtained and being in force under that Act.

According to the particulars endorsed upon the Summons, the relevant development comprises the erection of a number of sandstone retaining walls (and the resultant terracing of land) on property known as No 1 The Tor Walk, Castlecrag (the development site) which has a water frontage to Middle Harbour.

The admitted offence is a strict liability offence that is created by the EP&A Act, s 125(1) operating in concert with s 76A(1) of that Act and cll 13 and 14C(2) of the LEP.

The EP&A Act, s 125(1) provides as follows: Offences against this Act and the regulations (1) Where any matter or thing is by or under this Act, other than by or under the regulations, directed or forbidden to be done, or where the Minister, the Director-General, a council or any other person is authorised by or under this Act, other than by or under the regulations, to direct any matter or thing to be done, or to forbid any matter or thing 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 EP&A Act, s 76A(1) provides as follows: Development that needs consent (1) General If an environmental planning instrument provides that specified development may not be carried out except with development consent, a person must not carry the development out on land to which the provision applies unless: (a) such a consent has been obtained and is in force, and (b) the development is carried out in accordance with the consent and the instrument.

Clause 14C of the LEP provides as follows: (1) SPECIFIC OBJECTIVE To accommodate housing such that the scenic qualities and ecological values of environmentally sensitive natural areas, including foreshores and bushland areas, are maintained by protecting the land in the zone from overdevelopment or visually intrusive development, by minimising the impact of hard surfaces on the ecological characteristics of the locality, including nearby and adjoining bushland, and by ensuring that the new development does not dominate the natural scenic qualities of the locality. (2) DEVELOPMENT WITHIN THE ZONE (a) Within the 2(a2) Residential Zone, the following development may be carried out without development consent:

(b) Within the 2(a2) Residential Zone, the following development may only be carried out with development consent:

Demolition Development for the purpose of: Bed and breakfasts Drainage Dual occupancies Dwelling houses Home business professional consulting rooms Roads Utility installations (c) Within the 2(a2) Residential Zone, any other development is prohibited.

Clause 14C forms part of the "development control table" which is incorporated in cl 13 of the LEP which provides as follows: (1) The specific objectives of each zone are set out in the development control table for each zone under the heading Specific Objective or Specific Objectives. (2) Except as otherwise provided by this plan, the development control table for each zone specifies the development within each zone that: a) may be carried out without development consent including exempt development; or b) may be carried out only with development consent; or c) is prohibited. (3) Except as otherwise provide by this plan, the Council shall not consent to development t on land to which this plan applies unless the Council is of the opinion that the development is consistent with one or more of the aims of this plan and at least one specific objective of the zone within which the development tis proposed to be carried out.

The EP&A Act, s 126(1) prescribes a maximum penalty of 10,000 penalty units ($1.1 million) for the admitted offence. B. THE RELEVANT EVIDENCE

The prosecution evidence is contained in the Statement of Agreed Facts (Exhibit 1) and the affidavit of Mr Gerard Timbs, a Council Senior Development Enforcement Officer.

Evidence in mitigation is provided in the affidavit of Mr Paul Abou-Sleiman, a Director and sole employee of the Defendant company.

The facts established by the Statement of Agreed Facts are as follows: 1 These proceedings relate to works carried out at Lot 37 in Deposited Plan 6689 known as 1 The Tor Walk, Castlecrag (the Property ). The Prosecutor 2 The Prosecutor is Willoughby City Council constituted under section 204 of the Local Government Act 1993 and, accordingly, is vested with the functions referred to in the Act (the Council). The Property 3 The property is zoned 2(a2) Residential under the Willoughby Local Environmental Plan 1995 (WLEP 1995). Development for the purpose of a dwelling house within the 2(a2) Residential zone may only be carried out with development consent The Consent 4 Development consent No 2001442(D) for a new dwelling on the property was granted to Bensen + Partners Limited on 9 March 2001 and was modified by DVA (S96) No 20010546 granted by the Council on 19 June 2001 (the Consent). 5 Construction certificate No 949/01 relating to the Consent was granted to Bensen + Partners Pty Limited on 27 June 2001. 6 At all material times Dr Ravelas was the owner of the Property. 7 At all material times Dr Ravelas was the principal who engaged, authorised and instructed: (a) Bensen + Partners Pty Limited (b) P&V Masonry Pty Limited; and (c) other workers on the Property. 8 Mr Abou-Sleiman is the sole director and secretary of P&V Masonry Pty Limited. Building Certificate Application 9 On 11 June 2003 Dr Ravelas submitted an application for a Building Certificate in respect of landscaping carried out on the Property (the Building Certificate Application). The sandstone retaining walls and the terracing the subject of the Building Certificate Application are the works which are the subject of these proceedings. 10 The Council has not determined the Building Certificate Application Sandstone Retaining Walls and Terracing 11 On or about 14 May 2002 Dr Ravelas obtained a quotation for landscape works from North Shore Landscaping which included a quotation for 150 sq.m. sandstone block retainer walls. 12 Between 1 December 2002 and 12 May 2003 earth works were carried out on the Property without the prior development consent of Council, where development consent was required by clause 14C of the WLEP 1995, in breach of s76A of the Environmental Planning and Assessment Act, 1979 ( EPA Act ) which earth works changed the levels of the Property. A plan titled The Tor Walk - Castlecrag Section A-A dated 25 September 2003 depicts excavation and landfill carried out on the Property. 13. Between 1 December 2002 and 12 May 2003 retaining walls were built on the Property without the prior development consent of the Council, where development consent was required by clause 14C of the WLEP 1995, in breach of s76A of EPA Act. 14 The sandstone retaining walls and terracing referred to in paragraph 13 are depicted in the photographs annexed to the affidavit of Gerard Timbs. Charges against P&V Masonry Pty Limited 15 The sandstone retaining walls and terracing referred to in paragraph 13 were constructed by P & V Masonry Pty Limited acting under the directions of Dr Ravelas. 16 P&V Masonry Pty Limited constructed sandstone retaining walls and terracing on the rear of the Property without first having obtained development consent in breach of section 76A(1)(a) of the EPA Act.

Annexed hereto and marked "A" is a reduced copy of the material portion of the plan referred to in par 12 of the Statement of Agreed Facts shows a series of 10 retaining walls stepped up the development site commencing with the waterside wall at RL 0 m rising to the uppermost wall, the level of which is at RL 21.6 m. The heights of the series of retaining walls are variable ranging from 1 m at the highest position on the development site, to 4.4 m at the lower ends of the slope. The development site is steeply sloping from its road frontage to its water frontage on Middle Harbour. The recently constructed dwelling-house is a stepped development located at the upper sections of the development site with four different levels ranging from RL 23.5 m to RL 35.75 m. Generally speaking, the retaining walls traverse in snake-like fashion the width of the development site.

According to Mr Timb's affidavit, he attended the development site on 7 May 2003 accompanied by officers of the Waterways Authority who had contacted the Council a few days earlier after making observations of the development site. By that time, the retaining walls, the subject of the present charge had been virtually completed, although the Defendant was still working on the site eg moving soil behind the retaining walls. Mr Timbs spoke to Mr Abou-Sleiman pointing out that the retaining walls did not appear to be in accordance with the Council approved landscape plans for the project. Mr Abou-Sleiman informed Mr Timbs that he was carrying out work in accordance with a landscape plan and produced the plan to Mr Timbs. After sighting the plan, Mr Timbs told Mr Abou-Sleiman, in the presence of Dr Ravelas, the owner of the property (who had in the meantime arrived on the scene after Mr Timbs had commenced his inspection) that the plan was not the Council approved landscape plan. He expressed concern on behalf of the Council and said that there would need to be a meeting at the Council's offices to discuss the matter.

That meeting took place on 2 June 2003, attended by Dr Ravelas and a number of his professional advisers. Mr Abou-Sleiman also attended. At the meeting, there was discussion concerning the works that had been carried out and various methods that might be employed "to regularise the works, including amended landscape plans, a building certificate and s 96 application". Mr Timbs notified Mr Ravelas and the persons in attendance that the Council was considering prosecuting for the offences of carrying out the unauthorised works and was also considering whether it would issue a statutory enforcement order requiring the demolition and removal of the unauthorised building work.

Dr Ravelas' Architect, Mr Bensen said that it was intended to lodge an application for a building certificate in respect of the unauthorised building works.

Mr Timbs enquired whether works were still being carried out on the development site and Mr Abou-Sleiman said that he was working at the water frontage and preparing to erect another sandstone wall. Mr Timbs directed that that work should cease until such time as Dr Ravelas had lodged his application with the Council and the Waterways Authority and they had been determined. Mr Abou-Sleiman agreed with Mr Timbs direction. In response to Mr Timbs question, Dr Ravelas said that he had moved into the new residence at the end of November 2002 and that the Defendant had commenced his building work on the development site in mid December 2002.

On 19 September 2003 the Council issued Dr Ravelas with an order pursuant to the EP&A Act, s 121B requiring him to undertake specified works on the development site within 60 days (Exhibit 2). (This Order was given some three months after Dr Ravelas' application for a building certificate had been lodged with the Council and while it remained undetermined, as is currently the situation.)

The required works were specified in the Order as follows: 1. Reduce the height and extent of the unauthorised sandstone retaining/garden walls that stand at the rear of the subject property such that the development is carried out in accordance with plans prepared by Bensen and Partners Architecture, numbered - 01/039/20A, 20B, 20C and 21A, 21B amended 20/8/03. Copy attached marked A and B . 2. Carry out landscaping in accordance with Landscape Plan prepared by Helen Young Horticulturist, numbered 01/039/20A, 20B, 20C, amended 11/9/03, together with associated Revised Planting Schedule, amended 18 September 2003. Copy attached marked C and D. 3. Landscaping to be carried out in accordance with Section B and C of Landscape Specifications prepared by Jocelyn Ramsay, dated October 2000, Copy attached marked E. 4. Provide and maintain erosion and sedimentation control devices on the premises whilst the work detailed in items 1, 2, and 3 of the schedule of works is being carried out. The erosion and sediment control devices shall be in accordance with the attached guide from the department of Conservation and Land Management and to the satisfaction of Council.

The Order stated the following reasons for giving the order - 1. The subject property is zoned Residential A2 - Scenic Protection Zone, under Willoughby Local Environmental Plan (LEP) 1995. The current extent of the unauthorised works does not comply with the specific objectives of the Scenic Protection Zone. 2. The unauthorised works have been carried out without the prior Development Consent of Council in a case where the prior Development Consent is required. 3. The unauthorised works have been carried out without a prior Construction Certificate in a case where a prior Construction Certificate is required. 4. Development has not been carried out in accordance with Development Consent No. 20001442(D). 5. The current extent of the unauthorised works has an adverse impact on the Middle harbour foreshore area. 6. The current extent of the unauthorised works dominates and does not complement the natural scenic qualities of the locality. 7. It is not in the public interest that the current extent of the unauthorised works is allowed to remain.

Affidavit evidence on behalf of the Defendant was given by Mr Paul Abou-Sleiman a Director of the company and the sole employee of it. He was not cross-examined.

Mr Abou-Sleiman who is 40 years old, married with four children, has been engaged in the business of constructing masonry retaining walls for over 20 years.

He has held a builder's licence since September 1990. The Defendant Company has carried on the business of constructing masonry retaining walls since April 2002 and has held a builder's licence since May 2003. Neither Mr Abou-Sleiman nor the Defendant company has ever been prosecuted for a criminal offence.

The Defendant was engaged by Dr Ravelas to construct masonry retaining walls on the development site at the end of November 2002 at which time there was under construction (but nearing completion) the large multi-level dwelling for Dr Ravelas which he occupied from the end of November. The Defendant was provided by Dr Ravelas with a landscape plan prepared by "Concept Green" dated 6 October 2002 which provided for the creation of the series of masonry retaining walls across the downslope of the development site as it steeply falls towards its water frontage. Paragraphs 19 to 23 of Mr Abou-Sleiman's affidavit state the following: 19. Ravelas did not advise me that the Landscape Plan had not been subject to Council consent. 20. I believed that as a large new residential dwelling had been constructed on the Property, Council were aware of the Landscape Plan and had granted development consent for the Landscape Plan. 21. I am aware that it was necessary to obtain Council approval before commencing construction of the Masonry Walls on the Property. 22. I would not have constructed the Masonry Walls had I been aware that Council had not provided development consent for the Landscape Plan. 23. The Defendant has never previously commenced construction of masonry walls without Council consent.

The Defendant commenced construction on the masonry walls in accordance with the "Concept Green" landscape plan in December 2002 and as earlier noted, had virtually completed the job by the time that Mr Timbs first visited the development site on 7 May 2003 and spoke with Mr Abou-Sleiman and Dr Ravelas.

As noted earlier, Mr Abou-Sleiman attended the Council offices on 2 June 2003 with Dr Ravelas and his consultants to discuss what might be done in respect of the unauthorised building work. Following Mr Timbs direction to Dr Ravelas on that occasion that works on the development site should cease, the Defendant stopped work at the development site.

However, in September 2003, the Defendant was engaged by Dr Ravelas to undertake modifications to the retaining walls that it had constructed on the development site in accordance with plans that Dr Ravelas gave to Mr Abou-Sleiman.

These plans are the plans that are expressly referred to in the Schedule of Works stipulated in the Council's Order given to Dr Ravelas on 19 September 2003 pursuant to the EP&A Act, s 121B requiring the reduction in height and extent of some of the retaining walls.

The Defendant commenced these modification works on 15 September 2003.

As a result of its experience in the present case, the Defendant has adopted a policy of enquiring whether development consent has been granted under the EP&A Act for any work that the Defendant undertakes for clients so that the Defendant is not exposed to any liability such as it has incurred in the present case of undertaking building work without the requisite development consent.

Mr Abou-Sleiman expressed great concern that if a conviction were recorded against the Defendant, he may suffer the suspension or revocation of his builder's licence. If this were to happen, he and his family would suffer extreme financial hardship. The Defendant's 2003 financial statements showed a pre-tax profit of $23,000. Expenses incurred by the Defendant included a total amount of $30,000 paid as wages to Mr Abou-Sleiman.

Mr Abou-Sleiman expressed his regret and contrition for the admitted offence and assured the Court that the Defendant would not re-offend.

Character references for Mr Abou-Sleiman were tendered (Exhibit A) from Father Elias Khoury, the Parish Priest of St Nicholas Antiochian Orthodox Church and Mr Elias Kanaan, School Teacher, each referee having known Mr Abou-Sleiman and his family for the past 15 years.

These references impressively attest to the most excellent character and reputation of Mr Abou-Sleiman as an exemplary law abiding citizen and devoted family man with a responsible and caring commitment to the community. C. THE PARTIES' COMPETING SUBMISSIONS ON SENTENCE

The real and substantial divergence in the competing submissions on sentence is founded upon the appropriate appraisal of the seriousness of the admitted offence (where that seriousness comprehends both the objective and subjective circumstances or factors concerning that offence).

Prosecuting Counsel submitted that the Court would find the admitted offence to be a serious offence for the following reasons -

It has been consistently held in this Court that an offence against s 125 of the Act is a serious one (eg Warringah Council v McNamee (2003) NSWLEC 28).
The planning system would be rendered ineffective if development was carried out without consent. (Mosman Municipal Council v Menai Excavations Pty Limited (2002) 122 LGERA 89).
The retaining walls were constructed on a property within a Scenic Protection Zone. The specific objective of the Zone is to "accommodate housing such that the scenic qualities and ecological values of environmentally sensitive natural areas, including foreshore areas…are maintained by protecting the land from….visually intrusive development….and by ensuring that the new development does not dominate the natural scenic qualities of the locality".
Seven to ten tiered sandstone retaining walls varying in height from 600 mm to 3500 mm above ground level were constructed, with the structures being visible from Middle Harbour.
The Defendant's employee (Mr Abou-Sleiman) is an experienced builder yet he made no inquiries of the owner of the property as to whether development consent had been obtained nor had he any system in place whereby he routinely made such inquiries of those for whom he constructed walls. He worked from plans which were not marked as approved by the Prosecutor.
The onus is on those who carry out the development to ensure that any necessary development consent before carrying out any work. (see Menai Excavations case).
It is submitted that the Defendant was careless, reckless and/or indifferent as to whether the works were approved.
The basis for the Defendant's employee's belief that Council had approved the plans as set out in his Affidavit should be given little weight given his experience and the unmarked plans (ie the absence of any notation of Council approval) from which he worked.
Section 10 of the Crimes (Sentencing Procedure) Act 1999 should not be applied for the following reasons: a. the seriousness of the offence; b. the offence is one of strict liability and it is unusual for such offences to have the benefit of s.10 (eg Menai Excavations case); c. the Defendant made no inquiries to ascertain whether consent had been obtained in circumstances where its employee was an experienced builder and the plans from which he worked were not marked as approved; d. the zone in which the work was carried out; e. the extent of the work carried out; and f. the failure to install any sediment or erosion control measures and the potential for environmental harm.

The competing submission of Defence Counsel was that the Court would conclude that the admitted offence was not serious for the following reasons:

(i) Mr Abou-Sleiman, on behalf of the Defendant, had undertaken the building work in the mistaken belief that the Council had granted the necessary development consent and had he known that that consent had not been granted he would not have undertaken the work.

(ii) The Defendant in undertaking the building work had not been in control of the development site upon which had been constructed a new dwelling house (its completion coinciding with the commencement of the Defendant's work). In these circumstances, it was reasonable for the Defendant to assume that all requisite approvals had been obtained for the total development of the development site, including the works that the Defendant was engaged by Dr Ravelas, to undertake.

(iii) Although the works undertake by the Defendant required development consent, the subsequent enforcement action taken by the Council in issuing Dr Ravelas with the Order Pursuant to s 121B of the EP&A Act, requiring, not the demolition of the retaining walls (except for the sea wall which had been erected beyond the waterfront boundary of the development site) but only the modification of the height and extent of some of those walls and the undertaking of landscaping treatment of the retained levels, indicated that the works undertaken by the Defendant were of such a character as to be permitted to remain on the development site albeit only in slightly modified form. This outcome suggested that the impact of the unauthorised building work undertaken by the Defendant was environmentally acceptable, or at least was not environmentally unacceptable.

Other submissions made on behalf of the Defendant, and which (together with the foregoing submissions) culminated in an application for the Court to apply in favour of the Defendant the discretion conferred by the Crimes (Sentencing Procedure) Act 1999, s 10 not to convict, and which additionally are relevantly mitigating factors (see the Crimes (Sentencing Procedure) Act 1999, s 21A) are to the following effect -

(iv) This is the first offence charged against the Defendant or Mr Abou-Sleiman.

(v) The Defendant entered a plea of guilty at the earliest opportunity.

(vi) The Defendant, despite its limited financial means, accepts that it must pay the Prosecutor's reasonable legal costs of the proceedings (which the Prosecutor has estimated at $20,000).

(vii) The Defendant's entire candour and co-operation with the Council in its investigation of the case, and assistance in the presentation of the prosecution evidence (principally by way of Statement of Agreed Facts).

(viii)The unlikelihood of the Defendant re-offending, having learned a hard lesson in the present case and having altered its business practice to ensure that any future building work that it undertakes is authorised by necessary Council approvals etc.

(ix) Mr Abou-Sleiman's outstanding character - both personally and in conducting his trade as a stonemason.

(x) The ultimate responsibility of Dr Ravelas, the owner of the property, for the offence (which is vindicated by the fact that he has been separately prosecuted by the Council for the same offence (for which he has entered a plea of guilty) and another related offence (which is to be defended) where those proceedings are pending in this Court;

(xi) The Defendant has gained no financial benefit from the carrying out of the unauthorised building work (such as may have been gained (if there be gain) by the property owner).

(xii)The consequence of conviction, imperilling the continuance of the Defendant's builder's licence, thereby adversely affecting its trading capacity and livelihood.

The disputed question of the seriousness of the admitted offence is of course relevant to sentence generally (vide the Crimes (Sentencing Procedure) Act 1999, s 3A) and in particular to the Defendant's application for relief pursuant to s 10 of that Act.

A consideration of the objective seriousness of the admitted offence must logically start with the obvious fact that the legislature in prescribing a maximum penalty of $1.1 million for offences against the EP&A Act, s 125 has unequivocally declared that such offences are to be regarded as serious offences. It may be accepted (as I noted in Warringah Council v McNamee (2003) NSWLEC 28) that the offences created by s 125 cover a very wide spectrum of conduct ranging from the not too serious to the obviously serious, and that the essential character of the admitted offence, namely carrying out development without the requisite development consent, itself covers a wide spectrum of activity ranging from the carrying out of minor development to the carrying out of major development.

In my judgment, the nature and extent of the development carried out by the Defendant cannot be regarded as minor development. It involves a series of substantial sandstone retaining walls covering a large area of the development site with a very prominent exposure to view from Middle Harbour.

Notwithstanding this fact, and by way of qualification to it, the Defendant has placed considerable reliance upon the fact that the civil enforcement action taken by the Council against Dr Ravelas (the owner of the property and the buildings erected on it) by issuing the Order under the EP&A Act, s 121B requiring him to modify, but not to demolish, the unauthorised sandstone retaining walls. From this fact, the Court is invited to infer that the commission of the offence did not create any adverse environmental impact or consequence, and that this aspect of the offence demonstrates or at least indicates that the offence was not a serious offence. The Defence submission (properly in my opinion) did not go so far as to suggest that the issue of the s 121B Order was an indication that the Council would probably have granted development consent to the modified retaining walls if an application for that development had been made. But even if the finding had been available that development consent would probably have been granted to an application to building the retaining walls in their modified form (as reflected in the requirements of the Council's s 121B Order served on Dr Ravelas) in the present case and on the evidence I am not prepared to so find, on the balance of probabilities, the impact of that finding on the proper evaluation of the seriousness of the admitted offence would not escape or neutralise the impact on that question of the following two facts -

(i) the admitted offence comprises the carrying out of the original , ( and not the modified ) development; and (ii) the essence of the admitted offence is the prohibition on the carrying out of development unless the requisite consent has been obtained and is in force.

The last-mentioned factor is simply the logical outworking of the EP&A Act, s 76A(1). The requirement to obtain development consent before carrying out development is the lynchpin of the system of planning control that is provided for by Part 4 of the EP&A Act and in this respect, I entirely agree with Lloyd J's observation in Menai Excavations at 97: The system of planning control would become somewhat ineffective if persons were to carry out development, including demolition work without ensuring that necessary development consent has been obtained

The fact that the EPA Act contains provisions which may bring about in some measure on ex post facto regularisation of the unlawful carrying out of development (eg by the issue of a building certificate pursuant to ss 149 A to F - see Ireland v Cessnock City Council (1999) 103 LGERA 285) does not derogate from the fundamental precept of the EP&A Act that development is not to be carried out unless the requisite development consent has been obtained.

Nor do those provisions modify the essential character of an offence against s 125 involving a contravention of the EP&A Act, s 76A(1). Indeed, even if a building certificate is issued in respect of an unlawful development, the statutory immunities conferred by s 149E expressly preserve the liability of a person to be prosecuted for an offence against s 125 by virtue of the failure to obtain the requisite development consent: see s 149E(3)(b).

The facts of the present case establish that Dr Ravelas' application for a building certificate in respect of the unlawful development carried out by the Defendant has not been determined by the Council but that while that application was pending, the Council issued Dr Ravelas with the s 121B Order requiring him, inter alia, to modify the height and extent of some of the sandstone retaining walls. The facts of the case indicate that the Defendant has, on behalf of Dr Ravelas, recently been engaged on the building work involved in the required modification of some of the retaining walls.

It is of some significance that the EP&A Act, contains no express provision concerning the legal relationship between civil enforcement action by way of statutory enforcement order under s 121B in relation to a breach of the Act (such as to constitute an offence against s 125) and summary criminal enforcement action in respect of that breach. This position is to be contrasted with the express provisions contained in s 127(7) and (8) in respect of civil enforcement action instituted pursuant to s 123 of the Act (as to which see Willoughby City Council v Bechara (2003) 124 LGERA 416 at 418/419). Sections 127(7) and (8) provide as follows: (7) A person shall not be convicted of an offence against this Act or the regulations where the matter constituting the offence is, at the date upon which the conviction would, but for this subsection, be made: (a) the subject of proceedings under section 123, which proceedings have not been concluded, or (b) the subject of an order made under section 124. (8) Nothing in subsection (7) precludes a conviction being made where the proceedings referred to in paragraph (a) of that subsection are concluded otherwise than by the making of an order under section 124

Accordingly, even if it were to be assumed that the issue of the s 121B Order were to represent the entire civil enforcement action to be taken by the Council in respect of the breach of the EPA caused by virtue of the Defendant's conduct, and even if Dr Ravelas were to fully comply with the requirements of that Order, those (assumed) consequences would not affect the Defendant's liability incurred under s 125 of the EP&A Act.

Finally, in relation to objective factors going to the proper appraisal of the seriousness of the admitted offence, it should be noted that there is abundant existing judicial authority that the probability that development consent would have been granted, if applied for, in respect of any development unlawfully carried out, does not derogate from the objective seriousness of the offence of carrying out development without the requisite development consent - see Cooper v Coffs Harbour Council (1997) 97LGERA 125 at 143, Ryde City Council v Calleiga (1998) 99 LGERA 360 at 365, Canterbury City Council v Saad (2001) 112 LGERA 429.

The remaining consideration to factor into the required evaluation of the seriousness of the admitted offence are the subjective factors bearing upon the Defendant's criminal and moral culpability in committing the offence.

It must be accepted on the evidence, that the Defendant, through Mr Abou-Sleiman honestly believed that the work that he undertook on Dr Ravelas' behalf was relevantly approved by the Council. Defence Counsel has gone further in submitting that the surrounding circumstances provided some objective foundation of reasonableness for that honestly held, but mistaken belief. But this submission is inherently difficult to convincingly press or to accept because if it were truly sustainable, why did the Defendant not seek to make out the defence or exculpation based upon honest and reasonable mistake of fact, which is available in respect of a charge of a strict liability offence: State Rail Authority of NSW v Hunter Water Board (1992) 78 LGERA 342. The notion of partial "reasonableness" in this context is quite unhelpful, if not meaningless.

Ultimately, I have found that the Defendant's honest mistake cannot be regarded as being objectively reasonable. However, in so concluding, I do not accept the Prosecution submission that the Defendant (through Mr Abou-Sleiman) was "reckless and/or indifferent as to whether the works were approved", although I do think the Defendant's mistaken belief involved some significant want of care, or at least some serious error of judgment on the part of Mr Abou-Sleiman, in acting in reliance on the "Concept Green" Landscape Plan which did not bear any endorsement or annotation of the Council's approval.

This finding places considerable importance on the very extensive nature of the building work undertaken by the Defendant on the development site. Whereas I can readily conceive that much of the work undertaken by Mr Abou-Sleiman or the Defendant in the course of business may involve types of development that may fall within the category of "exempt development" under the EP&A Act - minor gardening walls and retaining walls, garden steps, sandstone pavements etc - the work relevantly undertaken in this case was of an entirely different nature.

But even if this be the general run and nature of the Defendant's business, the far more extensive nature of the building work undertaken on the development site in the present case should have been obviously differentiated by the Defendant and Mr Abou-Sleiman from the minor developments that are carried out by the business.

Again, I can readily appreciate that the Defendant is generally engaged in what might be fairly regarded in the building industry as "finishing" or ancillary works (eg landscaping a development site which has been, or is in the course of being, developed by residential or commercial development etc) and it may be that some of that work may qualify as "exempt" development, but again the sheer magnitude of the works undertaken by the Defendant on the development site should have alerted and enabled the Defendant to distinguish that work from other more minor developments that the Defendant undertakes in finishing off a new development etc.

Neither the Defendant nor Mr Abou-Sleiman is to be regarded as a developer carrying out major building projects. If their trade or business was of that nature, their failure to satisfy themselves that the work undertaken on the development site had the requisite Council approval would have been significantly more culpable. But that is not the case here and all things considered, I have evaluated the Defendant's subjective culpability in the commission of this offence to be not significant, albeit it is neither excusable nor condonable.

By combining my findings on the objective seriousness of the admitted offence and the Defendant's subjective culpability, my ultimate evaluation is that the admitted offence should be regarded as only a moderately serious offence against the EP&A Act, s 125.

But this evaluation of the relative seriousness of the admitted offence (within the overall spectrum of potentially offending conduct) far transcends and exceeds any notion that the offence is "trivial in nature" being one of the factors that are relevant to the exercise of the discretion conferred upon the council by the Crimes (Sentencing Procedure) Act 1999, s 10 which 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. (2) An order referred to in subsection (1) (b) may be made if the court is satisfied: (a) that it is inexpedient to inflict any punishment (other than nominal punishment) on the person, or (b) that it is expedient to release the person on a good behaviour bond. (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.

In the light of my lengthy consideration of the seriousness of the admitted offence, I am able to state briefly my determinations in respect of each of the considerations enumerated in subsection (3) (which logically precede the considerations enumerated in subsection (2)).

Paragraph (a) only operates in respect of the Defendant only to the extent that Mr Abou-Sleiman's excellent character is relevant. The question was not deeply explored in the argument and I am inclined to the view that the antecedents etc of the Defendant and of Mr Abou-Sleiman are not mutually transposable, since they are obviously different and separate legal persons. However, assuming that the Defendant is entitled to benefit from the outstanding character and reputation of Mr Abou-Sleiman this consideration obviously operates in favour of the Defendant.

Paragraph (b) operates against the Defendant because I have held that the admitted offence is not a trivial offence, but a proper appraisal of relevant objective and subjective factors, produces the result that the offence is to be regarded as moderately serious relative to the spectrum of conduct offending the EP&A Act, s 125.

Paragraph (c) operates only partly in favour of the Defendant insofar as in carrying out the development, the Defendant was honestly mistaken in believing that the requisite Council approval had been granted to "Concept Green" landscape plan but as I have also found, that mistaken belief was the product of a significant want of care or a serious error of judgment on the part of the Defendant (or Mr Abou-Sleiman) so that the mistaken belief was not reasonably founded, nor was the Defendant's mistake excusable or condonable in any other sense.

My analysis of the relevant considerations leads to my ultimate conclusion that the Defendant has not made out a case for discharge or conditional discharge pursuant to the Crimes (Sentencing Procedure) Act 1999, s 10(1). D. THE APPROPRIATE SENTENCE

In my judgment, the established facts of the present case call for conviction and sentence, having regard to my evaluation of the gravity of the offence and the Defendant's criminal and moral culpability in the commission of the offence, but giving full effect to the several mitigating factors that I have earlier identified.

The result of these findings is that a modest and lenient penalty of $10,000 is considered appropriate but this amount should be reduced by an overall discount of 50 per cent reflecting the combined weight of all mitigating factors relevant to this case, resulting in an ultimate penalty of $5,000. E. ORDERS

For all of the foregoing reasons, I make the following orders:

Defendant is convicted of the offence as charged.

A penalty of $5,000 is imposed in respect of that conviction.

Defendant is to pay the Prosecutor's costs in the sum agreed or failing agreement, in accordance with s 253 of the Criminal Procedure Act 1986.

The fine to be paid to the Council in accordance with the Local Government Act 1993, s 694.

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.

(2001) 112 LGERA 429

(1999) 103 LGERA 285

(2003) 124 LGERA 416

At a glance

Court

Decision date

Before

Source

Judgment (90 paragraphs)

Cases Cited (6)

Cited By (13)