Willoughby Council v Vlahos

EX TEMPORE Judgment 1HIS HONOUR: The defendant, John Vlahos, has pleaded guilty to an offence against s 125 of the Environmental Planning and Assessment Act 1979 (EPA Act). The offence charged is, that between 1 February 2011 and 29 June 2012, the defendant carried out development on land known as 13 Weetawaa Road, Northbridge, being development that required development consent under the EPA Act, and did so in a way that did not accord with the development consent that had been obtained, and was in force, in respect of that particular development. The offence created by the section is one of strict liability. 2In summary, the defendant arranged for, and supervised the removal of, a large Casuarina tree growing in the rear yard of the land. The development consent that pertained to the development then being carried out on that land required, by condition, that the tree be protected during construction work and that it be retained. The defendant having pleaded guilty to the offence, the task of the Court is now to consider the appropriate sentence to be imposed for that offence. 3The facts pertaining to the commission of the offence are not in dispute: they are reflected in an agreed statement of facts tendered in the hearing before me. They may be shortly stated. 4The land in question is owned by Peter and Ruda Vlahos, the parents of the defendant. On 29 April 2010, a development application was submitted by Mr and Mrs Vlahos senior seeking development consent to demolish the existing buildings on the land and to construct in their place a new twostorey dwelling with garage and rear yard swimming pool. Plans submitted with that development application showed the location of a large Casuarina tree in the rear yard which was to be retained. Also accompanying the development application was at least one letter received from a neighbour expressing some displeasure with the continued location of the tree in the rear yard of the land. 5On 11 May 2010, the land was visited by the Open Space officer of Willoughby Council (the Council), the prosecutor. He reports then observing a large Casuarina in the rear yard that he described as a "significant specimen and in good health". 6It is accepted by the parties that the tree in question was about 16m in height with a canopy spread of between 16m and 18m. The Open Space officer reported that the Casuarina tree was the only significant vegetation on the land, that it remained unaffected by the proposed building works and, as a consequence, its retention was recommended. 7On 9 August 2010, the Council, by delegation, granted development consent sought Mr and Mrs Vlahos senior. That consent was subject to a number of conditions. Relevant for present purposes are conditions 4 and 23. Condition 4 was in the following terms relevant to the present charge: "Condition 4 Amendments The proposal is to be amended in the following manner. (a) The Allocasuarina cunninghamiana (Casuarina) tree adjacent to the rear boundary is to be retained and protected." Paragraph (b) of the condition related to a front fence and I do not need to quote it. The condition then concluded: "Plans detailing these amendments are required to be shown on the Construction Certificate plans." 8Condition 23 was in the following terms: "Condition 23 Tree Protection Retain and protect the following trees and vegetation throughout the demolition and construction period: Tree Species Location Allocasuarina cunninghamiana (Casuarina) Rear boundary The protective measures must comply with the following specifications: (i) WCC Landscape Specification 01/2007: Tree Protection Area; (ii) WCC Landscaping Specification 02/2007: Tree Protection Fencing" 9In January 2011, a private certifier retained by Mr and Mrs Vlahos provided a construction certificate for the new dwelling and associated structures to be located on the land. The construction certificate drawings showed the retention of the Casuarina tree, as was required by the Council's conditions of consent. 10Shortly thereafter, namely on 7 February 2011, the Council was notified that work was about to commence. Peter Vlahos was nominated as the holder of an ownerbuilder's permit for the purpose of implementing the development. The defendant was retained as site supervisor for the development. He was a licensed builder and had held that licence for the previous nine years. Apparently, he was also engaged in building construction work on an adjoining property at the time. 11On a date shortly after work commenced, the defendant arranged for a contractor to quote for the removal of the Casuarina tree from the rear yard of the land. At a later date, sometime in February or March of that year, the tree was removed from the land under the direction of the defendant. In late June 2012, the principal certifying authority for development on the land was notified by an architect retained for work being undertaken on a nearby property that the Casuarina tree had been removed from the rear of 13 Weetawaa Road. 12As a result of the information received by the certifier, he issued a notice of intention to give an order that development consent granted in respect of the land was not being complied with, in that the tree marked as required to be protected had been removed in contravention of condition 4(a) and condition 23, being the conditions to which I have earlier referred. 13The notice indicated that representations should be made as to why an order should not be given, by reason of the apparent breach recorded by the certifier. Subsequently, the land was inspected by Mr Hayward, an officer of the Council, who observed that the tree had been removed as had been reported by the principal certifying authority. 14On 19 July 2012 the Council issued a notice to Mr and Mrs Vlahos senior indicating that the development consent was not being complied with, in that the tree that was the subject of the condition had been removed in contravention of the requirements of the consent. Attached to the draft notice was the draft of an order that the Council proposed to issue under s 121B of the EPA Act, and in respect of which Mr and Mrs Vlahos were invited to make representations in the event that they opposed the issuing of such an order. The notice contained a schedule of works to be undertaken. 15Subsequently, the defendant planted some fifteen specimens of a small shrub or tree known as Photinia fraseri robusta (colloquially known as photinia) along the rear boundary of the property together with an Elaeocarpus reticulatus (Blueberry Ash) tree at the southern end and a Tibouchina epidora at the northern end. That work was undertaken in intended compliance with the draft order. Although the Blueberry Ash was not nominated in the order itself, the evidence revealed that, having received the draft order, contact was made by or on behalf of the defendant with staff of the Council who confirmed that an appropriate tree to plant in the rear yard was a Blueberry Ash. 16Evidence in this matter, adduced by the prosecutor, was confined to the statement of agreed facts, which became Exhibit B, and to which the various documents referred to in the statement were annexed. That was accepted as sufficient for the prosecutor's case to conclude. 17Evidence was led on behalf of the defendant. That evidence essentially comprised the affidavit of the defendant, John Vlahos, being an affidavit sworn on 16 April 2013. The defendant was called to give short supplementary evidence and he was crossexamined on his evidence. His evidence reveals that, prior to lodgement of his parent's development application, he was approached by at least two neighbours who indicated some concern as to the impact which the Casuarina tree was having on their land, essentially by the dropping of leaves and needles, a habit of that particular species of tree. At least one of the neighbours provided a letter lodged with the development application supporting the removal of the tree. However, as I have earlier stated, the approved plans indicated an intention to retain the tree and the development consent granted by the Council accepted that position, notwithstanding the neighbour's letter. 18The defendant also stated in his evidence that the decision to remove the tree was one taken on the spur of the moment. That position was not supported in the submissions ultimately made on his behalf in the hearing before me. However, it is recognised that one of the matters that caused him to remove the tree was the indication from some neighbours that they preferred its removal although it would seem that the proximity of the tree to the swimming pool proposed for his parents land also had a benefit for that land. 19The defendant also stated that, having received the orders or draft orders issued by the Council under s 121B of the EPA Act, work was required to be undertaken promptly. As a consequence, he undertook that work albeit that, strictly speaking, the obligation was cast upon his parents as holders of the development consent. 20Importantly, in his evidence, the defendant acknowledged the seriousness of his wrongful conduct. He tendered an apology for the act that he had undertaken and the impact that it had had. That impact was not only one to which I will come shortly, but also one that received criticism from some neighbours who had benefited from the existence of the tree, albeit that other neighbours thought it to be an undesirable element in the local area. 21The defendant also stated that he derived no personal gain from the action that he took. I accept that to be the case. The defendant further acknowledged his awareness that the consent controlled development on the land and also that at the time at which he authorised removal of the tree, a condition of that consent required its retention. 22In order to address what was clearly a breach of the condition of the development consent, application was subsequently made by Mr and Mrs Vlahos senior to modify that consent. Although the application was submitted in their name, I apprehend from the evidence given that the defendant was the moving force behind that application. 23The modification application, made under s 96 of the EPA Act, was submitted to the Council in July 2012. In January of this year that application was approved in part. The terms of the application need not presently be quoted; suffice it is to note that Mr and Mrs Vlahos senior (to whom I also add the defendant) were dissatisfied with the determination of the Council, so far as it related to the requirement to plant speficied trees of a certain size at the rear of the property. In the result, an appeal from the Council's decision was brought to this Court. 24In a decision delivered by a Commissioner of the Court on 19 April 2013, the appeal from the Council's decision was successful in part. As a consequence, the conditions of consent then imposed, which reflect the consent in its current operative form, required that there be replacement planting (see condition 44B) in a location nominated in the condition and of a species there nominated. The evidence is that the requirements of that condition have, in the last two weeks, been met. 25An additional condition, namely condition 44C of the modified consent, also required the creation of a positive covenant registered on the title to the land requiring, in effect, that the two trees, namely weeping lilly pillies that had been planted, be maintained and, if necessary, replaced for a period of twenty years. Once again the evidence given by the defendant is that the positive covenant has been registered on title as the condition required. In short, all current conditions of the relevant consent pertaining to tree planting would now seem to have been satisfied. 26The determination of an appropriate penalty requires first and foremost a consideration of the objective circumstances of the offence that has been committed. As the authorities make clear, the maximum penalty available for an offence reflects the public expression by Parliament of the seriousness with which an offence of the kind under consideration is viewed by the community, as reflected in that legislation. The maximum penalty for an offence against s 125 of the EPA Act is $1.1 million, a figure which indicates an offence seen as being very serious. That said, it must be acknowledged that there is a wide spectrum of offences that may be committed under that section and as a consequence proper consideration must be given in any given case to where, within the range, that offence sits. 27Of significance in the present case is the harm that is created by the loss of the tree in question. It would be facile to suggest that, because we are here dealing with the loss of one tree, we are dealing with a matter which is of minor, even trivial importance. That having been said, it must be acknowledged that Mr Longville, who appeared for the defendant, disavowed any submission that this offence should be seen as being trivial. I acknowledge his disavowel as being appropriate. 28As I have said, the Casuarina tree in question was about 16m in height with a canopy spread of 16m to 18m. In the course of giving evidence about that tree in the recent appeal concerning the modification of the consent in question before this Court, two arborists expressed an opinion as to the impact of its loss. They were in agreement. As appears in the statement of agreed facts in this case, they are recorded as having said this: "[They that is the experts] agree that the Casuarina tree that was removed was around 14 to 16 metres in height with a canopy spread of 16 to 18 metres and that this canopy was lost when the tree was removed. [They] agree that the tree was of moderate to high landscape significance and provided considerable landscape and amenity values to the site and adjoining properties which was lost when the tree was removed." 29In the context of the impact upon the built environment in the locality, those same experts said this in relation to the lost Casuarina: "The experts agree that the Casuarina tree that was removed was of considerable dimensions, moderate to high landscape significance and contributed a high level of amenity to the site and adjoining properties." 30As a consequence, it is apparent that one cannot approach this matter simply on the basis of a single tree removal. As was submitted by the prosecutor, the loss of the tree in the circumstances here in question, not only involves what might be seen to be the direct environmental impact from that loss, but also the harm to the community that is involved in infringing the aims and objectives of the Willoughby Local Environmental Plan 1995, which included an objective to conserve and enhance the tree resources and landscape quality of the area; an objective which is clearly offended by what has occurred. 31Further, the carrying out of development that does not accord with a development consent undermines the effectiveness of statutory planning controls which in turn undermines the objects of the EPA Act. In short, offences of this kind, even though they may involve a single tree, involve actions that undermine the integrity of the planning system. It is important, indeed fundamental, that when a development consent is required and given under a statutory scheme, conditions of consent must be observed. That obligation must be made apparent to the community as a whole. 32Also relevant to the objective seriousness of the offence is the defendant's state of mind. Although, as I have earlier recorded, the defendant stated that the decision was "spur of the moment", that concept, as his counsel properly conceded, could not properly be applied to the consideration of this offence. There had clearly been a period of something in the order of nine or ten months in which the impact of such representations as were made to him by those neighbours wishing to have the tree removed were considered. No doubt they played a part, and I accept that they played a part, in the decision made to remove the tree. However, I cannot attribute the state of mind of the defendant as one which involved, to use the vernacular, "a sudden rush of blood to the head" to have the tree removed. 33The circumstance that not only was there a time in which to reflect upon the representations made by neighbours, but also the fact that the tree was removed very shortly after the commencement of work, rather suggests that in probability the removal of this tree was very much under consideration by the defendant at the time at which he embarked upon site supervision work. No doubt, there was a day upon which the decision was ultimately made, but premeditation or consideration of that action, I would have to accept, took place over a longer period of time than that which is normally comprehended by an explanation that talks about a "spur of the moment" decision for which some lessening of seriousness might otherwise be applied. 34Related to the state of mind of the defendant, informing the seriousness of the offence, is the reason for its commission. As I have said, I accept that the defendant derived no financial gain from the action that he took. The facts amply demonstrate that not only was he doing some of his neighbours an apparent service but also benefiting development on the subject land, given the proximity of that large tree to the proposed swimming pool. 35Even if it be that the overwhelming purpose of the decision was to respond favourably to the concerns of the neighbours, I do not accept that those concerns, properly considered, offered a proper explanation for the action that was taken. As was conceded by his counsel, it is not suggested that the action that he took was entirely altruistic. 36It is significant in the present case that the defendant is a licensed builder and has held that license for the past nine years. While the prosecutor does not contend that specific deterrence is an element that should weigh heavily, if at all, in the determination of penalty in this case, there is no doubt that there is a need for general deterrence in the consideration of any penalty that is to be imposed. 37Observations made by this Court about breaches of conditions of development consent, involving the loss of trees that are required to be retained or performance of construction conformably with conditions of consent make it imperative that compliance is a necessary prerequisite for building professionals to observe. 38There is an expectation that those given the benefit of carrying out activities pursuant to consents in a professional capacity they do so strictly in accordance with the requirements of whatever licence, authority, permit or consent they are given so as to ensure that breaches do not occur. 39McClellan JA (when Chief Judge of this Court) observed in Keir v Sutherland Shire Council [2004] NSWLEC 754 at [13]: "when such a person breaches the law, the penalty imposed must be sufficient, not only to provide adequately to punish the breach, but to ensure that others with licences to carry out similar work are reminded of their responsibilities under the law". Observations to similar effect were repeated by the former Chief Judge in Bankstown City Council v Taouk Constructions [2004] NSWLEC 402. 40It also needs to be acknowledged that with the extent of building work now required to be undertaken in accordance with a development consent - a prevalent activity, particularly in Metropolitan areas - the penalty imposed, needs to be such that it ensures offences of the present kind do not become prevalent. The fact that offences are known frequently to occur in this area, involving breaches of conditions of development consent, is a factor to be reflected in the penalty to be imposed. Such a penalty is meant to deter those who would see the carrying out of such work as something that can be undertaken with the prospect of only a nominal fine imposed. That is a position that cannot be tolerated. 41For the reasons that I have indicated, I consider that the present offence should be classified as being in the low to moderate range of objective seriousness. I say low to moderate accepting, as I do, that I am not here dealing with substantial works of the magnitude that might pertain in other cases. However, in terms of the harm to which I have referred, I think it is appropriate to observe and to determine that the objective seriousness, particularly in the context of harm, is as I have indicated. 42Mr Longville, on behalf of the defendant, submitted that this was an appropriate case in which to apply the provisions of s 10 of the Crimes (Sentencing Procedure) Act 1999. In particular, it was suggested that this may be an appropriate case to which the provisions of subsection (1)(b) might be applied, which would have the consequence of not proceeding to conviction of the defendant: finding him guilty, but discharging him on condition that he enter into a good behaviour bond for a term not exceeding two years. 43As the multitude of cases, both in this Court, the Court of Appeal and Court of Criminal Appeal have identified, the commission of a strict liability offence such as that found under s 125 of the EPA Act will rarely engage the provisions of s 10. That is not to say that s 10 would never be applied, and I certainly do not approach the matter on the basis that that is so. 44However, what seems to me to be significant in this case is the fact that subsection (3) of the section requires a number of matters to be considered when determining whether to apply the provisions of subsection (1). I accept, consistent with authority, that the factors identified in subsection (3) are not interdependent or conjunctive but rather disjunctive considerations. The subsection requires that the following matters be regarded when considering exercise of the discretion under s 10: "(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." 45As I will shortly demonstrate, the good character of the defendant is not in question. Testimonials tendered by him sufficiently demonstrate his good character. However, applying the remaining three considerations, it is difficult for me, in the circumstances that I have described, to apply them so as to exercise the discretion available under subsection (1) of s 10. It is conceded, as I have indicated, that the offence was anything but trivial. Next, there were no extenuating circumstances in which the offence was committed; indeed, it is accepted that it was deliberate and conscious as the defendant was aware of the conditions of consent that required the protection and retention of the tree. No pressure of a kind that might be reflected in an extenuating circumstance or other event that might be so comprehended is demonstrated in the evidence. 46"Any other matter that the Court thinks proper", to quote paragraph (d) of subsection (3), seems to me to weigh against, rather than in favour of, exercising the discretion available under s 10. As I have said, it was quite a deliberate act on the part of the defendant. It was a matter to which consideration must have been given for some time. For the reasons already indicated, the significance of the environmental impact was not such as to say that it was of so little consequence that the defendant should not be visited with any penalty. 47I do not therefore propose to exercise my discretion under s 10 in the manner sought. I consider that the imposition of a monetary penalty is appropriate. 48The subjective factors that are identified can shortly be summarised. The defendant pleaded guilty at the first available opportunity. As a consequence he is entitled to the benefit of the discount identified in the authorities. He is, I accept, a person of good character who has worked in the building industry now for eleven years and apparently has no record of the commission of any prior offence of any kind, let alone anything associated with the conduct of building work. 49He is also to be given the benefit of the cooperation which he offered when this breach of the EPA Act was being investigated. Indeed, he readily agreed to be interviewed by the investigating officer from the Council and admitted, in unequivocal terms, that he had been responsible for removal of the tree in question. 50Those are matters which are to be weighed in his favour. Also to be considered, is the fact, that although he was under a legal obligation or at least his parents were under a legal obligation to comply with the modified conditions of development consent and with the draft order issued under s 121B of the EPA Act, there was no question, so it seems, of the Council having to take the next step in that process of seeking to mandate performance by other court process. The required work was readily undertaken by him. 51Furthermore, I accept the statement, not only deposed to in his affidavit but I think reinforced by the manner in which he gave his evidence and answered questions in crossexamination candidly, that he is truly remorseful for the action that he took. He appreciates that it was wrong, and I accept that this is a matter in which recurrence of any like action is improbable. 52For those reasons I consider that a monetary penalty is appropriate. Synthesising both the objective circumstances in which the offence occurred and the subjective circumstances personal to the defendant, I consider that an appropriate penalty would be the imposition of a fine of $17,500 to which I would apply a discount for the subjective factors to which I have referred, including the discount for the early plea of guilty, to impose a fine of $12,500. 53I record also that there is an agreement to pay the prosecutor's costs, although the quantum of those costs has not yet been agreed. That is to be the subject of an order for agreement or assessment conformably with the provisions of the Criminal Procedure Act. 54For these reasons, I make the following orders.