Woollahra Municipal Council v Samadi

50096 of 2004 Woollahra Municipal Council v Afshin Ash Samadi

1 Her Honour: The Defendant is charged with committing an offence under s 125(1) of the Environmental Planning and Assessment Act 1979 ("the EP&A Act") in that he carried out development at 15 Wolseley Road Point Piper between 1 November 2002 and 1 July 2003 without development consent in circumstances where development consent was required contrary to s 76A(1) of the EP&A Act.

2 The Defendant has pleaded guilty and the essential elements of the offence are therefore taken to be proved. I note that the maximum penalty for this offence is $1.1 million.

3 The Court has had the benefit of a Statement of Agreed Facts which sets out the circumstances surrounding the offence. The Statement of Agreed Facts states at par 1 to 5 that: 1. The land at 15 Wolseley Road, Point Piper ("the property") was at all material times owned by Fatima Doust. The defendant is the son of Mrs Doust.

2. Situated at the property at all material times was a building lawfully comprising two dwellings, and otherwise know [sic] as a residential flat building.

3. The land is zoned residential 2(a) pursuant to the provisions of the Woollahra LEP. Residential flat buildings are prohibited in the zone.

4. The use of the property for the purposes of a residential flat building enjoys the benefit of existing use rights. Accordingly, clauses 43 and 44 of the Environmental Planning and Assessment Regulation 2000 applied to the property and provided: 43 Development consent required for alteration or extension of buildings and works (1) Development consent is required for any alteration or extension of a building or work used for an existing use. (2) The alteration or extension: (a) must be for the existing use of the building or work, or for a changed existing use, but for no other use, and (b) must be erected or carried out immediately before the relevant date 44 Development consent required for rebuilding of buildings and works (1) Development consent is required for any rebuilding of a building or work used for an existing use. (2) The rebuilding: (a) must be for the existing use of the building or work, or for a changed existing use, but for no other use, and (b) must be carried out only on the land on which the building or work was erected or carried out immediately before the relevant date. 5. At the direction of the defendant development was carried out at the property which development was not the subject of a development consent and were works for which development consent was required, which works comprised: 1. The construction of a spiral staircase from level 1 to the habitable roof structure in the location as shown on the plans … 2. The construction of a timber deck on an existing roof adjacent to the habitable roof structure … 3. The construction of a glass balustrade surrounding the said timber deck … 4. The construction of a timber pergola adjacent to the habitable roof structure … 5. The construction of a habitable roof top structure … ("the unauthorised works") As the unauthorised works comprised either the alteration or extension of a building used for an existing use or the rebuilding of a building used for an existing use development consent was required for all of the unauthorised works. 4 The Defendant has now obtained a building certificate from the Council in relation to the unauthorised works and the Council accepts that, following implementation of a number of ameliorative measures, such as the installation of privacy screening and the placing of planter boxes, the environmental impacts of these works are now acceptable. Further, a number of letters from the immediate neighbours of the property on which the unauthorised works were carried out were included as part of the Statement of Agreed Facts. These letters indicate that these neighbours agreed that the unauthorised works have not resulted in any adverse impact on their properties.

5 The Prosecutor accepted that there were no aggravating factors of the type identified in s 21A(2) of the Crimes (Sentencing Procedure) Act 1999 and that no environmental harm was caused as a result of the offence. Further, the Prosecutor accepted that there were mitigating factors of the type identified in s 21A(3) of Crimes (Sentencing Procedure) Act 1999 in that the Defendant pleaded guilty at an early date, has no prior convictions and is otherwise of good character. However the Prosecutor submitted that the works were undertaken deliberately and were significant in nature and that this should be taken into account in sentencing. Further, the Prosecutor submitted that the Defendant was not entitled to the full discount for an early plea as the Defendant only agreed on the Statement of Agreed Facts the day before the hearing with the result that the matter no longer required the three days hearing time it was allocated.

6 The Defendant did not rely on additional evidence beyond the Statement of Agreed Facts and a number of personal character references. The Defendant's counsel argued that the Defendant's culpability should be considered to be low because: (a) the works had no environmental impact; (b) no direct benefit accrued to the Defendant as a result of the works as they were carried out on property belonging to his mother; (c) a building certificate has now been issued for the work by the Council; and (d) the Defendant, without prompting from the Council, proposed a number of ameliorative works which the Council agrees have the effect that the development now has no adverse environmental impact; and (e) the Defendant has agreed to pay the Council's legal costs in the not inconsiderable sum of $25,000. Further the Defendant's counsel argued that the Defendant was entitled to the full discount for an early plea as the discount did not depend on agreement as to the facts surrounding the offence but merely a plea to the offence itself.

7 The only evidence I have before me regarding the circumstances surrounding the carrying out of the unauthorised works by the Defendant is that set out in par 5 of the Statement of Agreed Facts. Paragraph 5 does not provide any detail as to the circumstances in which the work was done by the Defendant. The Defendant's counsel submitted to me that the Defendant accepts that the offence is serious. The matters put by the Defendant's counsel to support the submission that the Defendant's culpability is low are directed to the fact that the parties have agreed that the works undertaken have no relevant environmental impact and the Council has since issued a building certificate in relation to the property. Given that I accept the Prosecutor's submission that the works are substantial and were done deliberately I consider that the Defendant must be considered, in the absence of any proffered reasonable explanation as to why these works were carried out, to have a reasonably high level of culpability.

8 The Prosecutor referred me to the decisions of Warringah Shire Council v Sahade [2004] NSWLEC 333 and Pittwater Council v Walters [2004] NSWLEC 75 as comparable cases concerning the carrying out of development without consent to consider in terms of proportionality of penalty. In Warringah Shire Council v Sahade a penalty $25,000 was imposed by me before being reduced to $16,000, due to mitigating factors, while in Pittwater Council v Walters [2004] NSWLEC 75 Talbot J imposed a penalty of $50,000 to $60,000 which was reduced, due to mitigating factors, to $35,000. While I consider that neither case is directly applicable given the different circumstances, I agree with the Prosecutor that this case probably falls in between the two in terms of severity.

9 In my view an appropriate penalty is $40,000. However there are a number of mitigating matters, including the early plea of guilty and the absence of environmental harm caused, identified in s 21A of the Crimes (Sentencing Procedure) Act 1999 which I must take into account in reducing that penalty. I consider that the Defendant should be entitled to a substantial discount for an early plea as I accept that the discount is directed at the utilitarian benefit of the plea itself. In circumstances where the Prosecutor appears to have a very strong case however I do not consider the full discount of 25% is warranted.

10 I accept that the expressions of contrition and remorse made from the bar table by the Defendant's counsel, taken together with the early plea of guilty, are indicative of the Defendant's remorse. My remarks in Newcastle City Council v Pepperwood Ridge Pty Limited [2004] NSWLEC 218 concerning the need to set out expressions of contrition in affidavit form before they can be given serious weight by the Court were directed to a corporate defendant whose state of mind could not otherwise be represented by any one person.

11 The Defendant has provided me with a number of character references which have been prepared in the knowledge that the Defendant is being prosecuted for this offence. I am informed by his counsel that the Defendant is a company director involved in several companies undertaking various activities, including property development activities, and is also active in charity work including fund raising for charitable purposes. I note that the Defendant has no prior convictions and I accept that the Defendant is otherwise a person of good character. Further, I note that the Defendant has agreed to pay the Prosecutor's costs in the sum of $25,000.

12 In light of the above matters I consider that a discount of 25 per cent is justified so that the penalty should be reduced to $30,000.

13 The Court makes the following orders: 1. The Defendant is convicted of the offence with which he is charged. 2. The Defendant is fined the sum of $30,000 to be paid to the Registrar of the Court within twenty-eight days of today's date. 3. The Defendant to pay the Prosecutor's costs in the sum of $25,000. 4. The exhibits may be returned.

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