Burwood Council v Portleigh Pty Ltd; Burwood Council v X-Sealant Pty Ltd [2023] NSWLEC 103

Land and Environment Court New South Wales

Medium Neutral Citation: Burwood Council v Portleigh Pty Ltd; Burwood Council v X-Sealant Pty Ltd [2023] NSWLEC 103 Hearing dates: 26 June 2023 Date of orders: 9 October 2023 Decision date: 09 October 2023 Jurisdiction: Class 5 Before: Moore J Decision: See orders at [170] to [172] Catchwords: SENTENCE – prosecution for development undertaken without approval of consent authority – development comprised construction of an additional level (a four bedroom penthouse) on a six storey residential apartment tower – builder prosecuted for construction – builder obtains benefit of continuity of engagement of workforce by not seeking consent for the additional level – additional level removes sole element of communal open space designated for future residents of that tower in the development – financial gain for builder a factor of aggravation – damage to the regulatory system of land use planning – offending conduct deliberate – maximum penalty for offending conduct $2 million – no prior convictions – limited assistance to prosecutor – necessity for specific and general deterrence – appropriate starting penalty $90,000 – early guilty plea – 25% discount on penalty appropriate – power to order diversion of portion of appropriate penalty for environmental purpose – diversion order of $15,000 made – builder fined $60,000 –publication order not opposed – publication order made – modification application to regularise additional level as a two bedroom apartment subsequently approved – implementation of modification required SENTENCE – prosecution for development undertaken without approval of consent authority – development comprised construction of an additional level (a four bedroom penthouse) on a six storey residential apartment tower – developer prosecuted for aiding and abetting construction – developer obtains benefit of the additional apartment– additional level constructed on shorter element of approved two tower development – additional level removes sole element of communal open space designated for future residents of that tower in the development – financial gain for developer a factor of aggravation – damage to the regulatory system of land use planning – offending conduct deliberate – maximum penalty for offending conduct $2 million – no prior convictions – limited assistance to Prosecutor – necessity for specific and general deterrence – appropriate starting penalty $120,000 – early guilty plea – 25% discount on penalty appropriate – power to order diversion of portion of appropriate penalty for environmental purpose – diversion order of $15,000 made – developer fined $75,000 – publication order not opposed – publication order made – modification application to regularise additional level as a two bedroom apartment subsequently approved – implementation of modification required Legislation Cited: Crimes (Sentencing Procedure) Act 1999, ss 3A, 21A, 22 and 23 Criminal Procedure Act 1986, ss 257B and 257G Environmental Planning and Assessment Act 1979, ss 1.3, 4.2,4.15, 9.50, 9.51 – 9.53 Environmental Planning and Assessment Regulation 2021, cl 295 Land and Environment Court Act 1979, s 34 Local Government Act 1993, s 694 Protection of the Environment Operations Act 1997, ss 244, 249 and 250 Cases Cited: Axer Pty Ltd v Environment Protection Authority (1993) 113 LGERA 357 Budvalt Pty Ltd v Grant Barnes, Chief Regulatory Officer, Natural Resources Access Regulator [2022] NSWCCA 9 Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 Caralis v Smyth (1988) 65 LGRA 303 Chief Executive, Office of Environment and Heritage v Ausgrid (2013) 199 LGERA 1; [2013] NSWLEC 51 Chief Executive, Office of Environment and Heritage v Clarence Valley Council [2018] NSWLEC 205 Chief Executive of the Office of Environment and Heritage v Bombala Investments Pty Ltd (2013) 199 LGERA 236; [2013] NSWLEC 185 Environment Protection Authority v Australian Waste Recyclers 1 Pty Ltd [2005] NSWLEC 739 Environment Protection Authority v Barnes (2006) NSWCCA 246 Environment Protection Authority v Cleanaway Equipment Services Pty Ltd [2022] NSWLEC 40 Environment Protection Authority v Forbes Shire Council [2014] NSWLEC 26 Environment Protection Authority v Hawkesbury City Council [2017] NSWLEC 39 Environment Protection Authority v Sydney Water [2022] NSWLEC 100 Environment Protection Authority v Sydney Water Corporation [2015] NSWLEC 80 Environment Protection Authority v Sydney Water Corporation [2019] NSWLEC 100 Environment Protection Authority v Sydney Water Corporation [2020] NSWLEC 153 Environment Protection Authority v Sydney Water Corporation [2021] NSWLEC 4 Environment Protection Authority v Sydney Water Corporation [2021] NSWLEC 17 Environment Protection Authority v Timber Industries Ltd [2001] NSWLEC 25 Environment Protection Authority v Unomedical Pty Limited (No 4) [2011] NSWLEC 131 Environment Protection Authority v Waste Recycling and Processing Company (2006) 148 LGERA 299; [2006] NSWLEC 419 Hoare v The Queen (1989) 167 CLR 348; [1989] HCA 33 Markarian v R (2005) 229 CLR 357; [2005] HCA 25 Mohindra v R [2020] NSWCCA 340 Plath v Rawson (2009) 170 LGERA 253; [2009] NSWLEC 178 R v O'Neill (1979) 2 NSWLR 582 R v Olbrich (1999) 199 CLR 270; [1999] HCA 54 R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 383 Secretary, Department of Planning, Industry and Veen v The Queen (1979) 143 CLR 458; [1979] HCA 7 Veen v The Queen (No 2) (1988) 164 CLR 465; [1988] HCA 14 Walden v Hensler (1987)163 CLR 561; [1987] HCA 54 X-Sealant Pty Ltd v Burwood Council [2022] NSWLEC 1316 X-Sealant Pty Ltd v Burwood Council [2023] NSWLEC 1469 Category: Sentence Parties: Burwood Council (Prosecutor) Portleigh Pty Ltd (Defendant in Matter No 342315 of 2022) X-Sealant Pty Ltd (Defendant in Matter No 342348 of 2022) Representation: Counsel: P English and J Cooper, barristers (Prosecutor) J Young and M Fozzard, barristers (Defendants)