Woollahra Municipal Council v Byrnes and Consolidated Byrnes Holdings Pty Ltd

PROSECUTOR Mr C M Harris (Barrister) SOLICITORS Michell Sillar

No 50125 of 2001 DEFENDANT in person LEGAL REPRESENTATIVES: SOLICITORS N/A

No 50126 of 2001 DEFENDANT no appearance SOLICITORS N/A

IN THE LAND AND 50125 of 2001 and 50126 of 2001 ENVIRONMENT COURT Pearlman J OF NEW SOUTH WALES 15 April 2002 No 50125 of 2001 WOOLLAHRA MUNICIPAL COUNCIL Prosecutor v JAMES WARREN BYRNES Defendant

No 50126 of 2001 WOOLLAHRA MUNICIPAL COUNCIL Prosecutor v CONSOLIDATED BYRNES HOLDINGS PTY LTD Defendant

Before me today are two proceedings brought by Woollahra Municipal Council. In the first, numbered 50125 of 2001, Mr James Warren Byrnes is charged that between 1 January 2001 and 5 March 2001 he committed an offence against s 125(1) of the Environmental Planning and Assessment Act 1979 ("the EP&A Act") in that he carried out development for the purposes of a dwelling house, namely the erection of a swimming pool, being development which was forbidden to be carried out by s 76A(1) by reason of it being development specified in the Woollahra Local Environmental Plan 1995 ("the LEP") as development which may not be carried out except with development consent.

The second charge, numbered 50126 of 2001, against Consolidated Byrnes Holdings Pty Ltd ("Consolidated"), is identical to the charge against Mr Byrnes in that it alleges that the company carried out development in contravention of s 125(1) of the EP&A Act being the erection of a swimming pool without development consent having been obtained.

Mr Byrnes appears today unrepresented to answer the charge against him. At the commencement of the hearing he changed his plea of not guilty, which had been entered on 5 December 2001, to a plea of guilty.

Consolidated was not represented. Mr Byrnes sought leave to represent it but, in conformity with pt 11 r 1A of the Supreme Court Rules 1970 (which applies in this Court) he is not permitted to represent Consolidated unless, as a director of the company, he complies with the requirements of that rule, which amongst other things, necessitates an affidavit containing specified statements. That has not occurred. Accordingly, the proceedings have taken their course on the basis that Consolidated is unrepresented.

The land which is the subject of both charges is 5 Epping Road, Double Bay ("the land"). It is zoned residential 2(b) under the LEP and I am satisfied that development for the purpose of dwelling houses may be carried out with council consent. I am also satisfied that no development consent has been furnished for a swimming pool upon the land.

I make the following findings of fact. In 1999 development consent numbered 799 of 1999 was granted in respect of the land in relation to alterations to the house erected on it. On 30 October 2000 the council granted consent to remove a jacaranda tree located at the rear of the land. On 14 January 2001 Consolidated entered into a contract with Mutual Pools Pty Ltd for the erection of a swimming pool. That contract contained, in handwriting, the following statement: Client has approval and council fees are his responsibility.

On 14 February 2001 Consolidated, under the hand of Mr Byrnes, wrote to Mutual Pools. I quote the second paragraph from that letter as follows: We confirm that we now take full responsibility for commencement and construction of the pool at 5 Epping Road Double Bay. We have now received the engineering details and are prepared to commence, without obtaining Council's final signoff. Excavation has been completed, and back propping has been completed for some week and a half .

On 26 February 2001 Mutual Pools contacted the council to arrange a site inspection before the pouring of the concrete at the pool. On 28 February 2001 a council officer, Mr L P Oldfield, inspected the land. He observed that excavation had taken place and steel reinforcement of the pool was in place. In a subsequent telephone conversation he notified Mutual Pools that the work should stop. Mutual Pools was unable to convey that instruction to its subcontractor and on 1 March 2001 the concrete was poured.

On 9 March 2001 a development application for the swimming pool was lodged with the council. It is important to observe that the development application, which was made by Consolidated, was dated 22 February 2001. On 9 May 2001 the development application for the swimming pool was determined by the refusal of consent.

As regards Consolidated I am satisfied beyond reasonable doubt that development was carried out upon the land without development consent having been obtained. That constitutes an offence under s 125(1) of the EP&A Act by virtue of the operation of s 76A(1).

In relation to the charge against Mr Byrnes, I take into account his plea of guilty which amounts to an admission of all the elements of the offence (R v O'Neill [1979] 2 NSWLR 582).

I come then to consider, in all those circumstances, the appropriate penalty. The facts of this case indicate a deliberate flouting of the law. Mr Byrnes admitted in evidence that he knew beforehand that development consent was required for the construction of the swimming pool. In his own words he, "took a gamble and lost". In giving oral evidence he volunteered that what occurred was "a deceit".

Furthermore, I note the contents of a letter which Mr Byrnes wrote under the heading of Consolidated on 21 March 2001 which includes the following passage: Also, Mutual Pools were provided a letter from Consolidated Byrnes Holdings authorizing (sic) them to start the works and there was an arrangement where there was to be no contact with Woollahra Council as Consolidated Byrnes Holdings was handling it's (sic) own applications. Mutual Pools made contact and representations to the Woollahra Council which has caused problems. Those problems are: the council has now advised that they reject the development application because Mutual Pools had advised them that they have already dug the hole, put the formwork in, steeled the site up and are about ready to pour. Had Mutual Pools not advised Council of this, they would be none the wiser and the application would have just gone through. However, now they've got rather upset about the matter. That is why Mutual Pools were told not to contact the council .

Carrying out the construction of the pool suited Mr Byrnes' convenience. It allowed the removal of the soil that was on the site as a consequence of the removal of the tree. It allowed the extensions to the house to be finished and it utilised the large crater that had been left by the removal of the tree.

There is no evidence before me that the council would have refused the development application had it been lodged in time. It does not comply with the provisions of the Woollahra Residential Development Control Plan 1999 which provides (on p 88) that the swimming pool needed a rear setback of at least three metres and a boundary setback as well. Furthermore, the notice of determination refusing the development ultimately was given on the ground that the work had already been carried out and the council was unable to grant consent. However, the council in the notice of determination, dated 9 May 2001, stated that no further action would be taken to require the removal of the works subject to five conditions which are stipulated in that notice. Consequently, I do not consider, as the council urge me to do, that the flouting of the law took place because Mr Byrnes knew that consent would be refused. I do not have evidence to establish that fact.

Nevertheless, this is not an isolated incident. Mr Harris, appearing for the council, drew my attention to my earlier decision in Hornsby Shire Council v Atifame Pty Ltd and Anor (1999) 102 LGERA 245. That case concerned contempt proceedings brought by the council against Atifame Pty Ltd, a company controlled by Mr Byrnes, who was also the second respondent in those proceedings.

The reason that I take that case into account is set out in the High Court decision of Veen v The Queen (No 2) (1988) 164 CLR 465. At p 477 their Honours stated: The antecedent criminal history is relevant, however, 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 .

In Hornsby v Atifame the Court had made orders in class 4 proceedings and proceedings were brought alleging contempt of those orders. I found that there had been breaches of the orders. I took into account a number of factors but concluded ultimately that both defendants were responsible, although, the company having been controlled by the second respondent, it was his obligation to comply with the orders and he did not.

Mr Byrnes has this morning strongly argued that I should not take into account the previous proceedings as they were different to these proceedings. That is true, they were different. They were proceedings for contempt of the orders of this Court, whereas these proceedings are a prosecution for a breach of the law. But the fact is that in both cases the defendants had a responsibility to comply with the law. The responsibility in the first case was to comply with orders of this Court. The responsibility in the second case was to comply with the law which required the obtaining of development consent in circumstances where that consent was necessary for the carrying out of development.

I do not consider that Mr Byrnes is, as Mr Harris submitted, a recidivist. As I have said, the two cases are not precisely the same. But Mr Byrnes carries out business as a developer. He has some knowledge of the rules and regulations which govern development and he, in those circumstances, must be taken to be especially aware of the law. He cannot simply be regarded as innocently ignorant. So, having regard to Hornsby v Atifame, I take into account that the offence with which Mr Byrnes is charged is not an uncharacteristic aberration or an isolated incident.

There are some matters I take into account in mitigation of penalty. First, I take into account Mr Byrnes' plea of guilty which was given today at the commencement of the proceedings against him. I discount the penalty I might otherwise impose by reason of that plea of guilty, but I discount it only at the lower end of the scale. That is because Mr Byrnes entered a plea of not guilty on 5 December 2001 and until today he has maintained that plea.

Mr Byrnes put before the Court this morning the fact that there was a long and protracted argument between him and the solicitors for the council about production of documents. I have read the correspondence referred to in the affidavit of Mr M E Dean sworn on 12 April 2002. That shows that the council made available for inspection in general terms the documents that were required by the defendants' notice to produce. Some documents were retained on the ground of legal professional privilege and the defendants were given notice of that. The fact is that I do not find in any of those documents any material which would convert a plea of not guilty at the commencement of a proceedings into an earlier plea of guilty. Nor do I think that those documents go, as Mr Byrnes urged me to accept, towards reducing the costs that the defendants might otherwise be required to pay.

I take into account that the council does not allege any environmental harm. There is no evidence of any objection by neighbours or anybody else about the construction of the pool. I want to emphasise however that the lack of environmental harm does not convert these charges into something less important. The fact is that both the charges against Mr Byrnes and Consolidated indicate a breach of the law.

The last matter I take into account in mitigation is Mr Byrnes' remorse. That was demonstrated by his unqualified apology to the Court and to the council which he made both from the witness box and from the bar table.

Under s 55 of the Land and Environment Court Act 1979 I am entitled to treat both offences as separate offences. Section 55 provides: A person who aids abets councils or procures the commission by another person of an offence punishable in the summary jurisdiction of the Court is guilty of the like offence and may be tried at the same time as or before or after the trial of the principal offender .

That section enunciates the common law as confirmed by the High Court in Giorgianni v The Queen (1985) 156 CLR 473.

In these proceedings there is no doubt, in my opinion, that Consolidated is the principal offender because it owned the land, it entered into the contract with Mutual Pools and it made the relevant development applications. However, Consolidated is controlled by Mr Byrnes. Mr Byrnes wrote all the letters on its behalf. Mr Byrnes made the telephone calls on its behalf. It is Mr Byrnes' responsibility. I said the same thing in Hornsby v Atifame. He is the mouthpiece of the company.

I consider, having regard to all of these matters, that an appropriate penalty for both offences is $12,000. I consider that it is appropriate that a fine of $10,000 be imposed upon Mr Byrnes and a fine of $2,000 upon Consolidated.

Accordingly, I make the following formal orders: In matter No 50125 of 2001

(1) I find the defendant convicted of the offence with which he is charged.

(2) I order the defendant to pay a fine of $10,000 to be paid to the Registrar of this Court within one month of today's date. In matter No 50126 of 2001

(1) I find the defendant convicted of the offence with which it is charged.

(2) I fine the defendant the amount of $2000 to be paid to the Registrar of this Court within one month of today's date.

(1) I order the defendants to pay the costs of the prosecutor determined in accordance with the provisions of the Land and Environment Court Act 1979.

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