Land and Environment Court of New South Wales CITATION : Penrith City Council v 24/7 Waste Bins Pty Ltd & Anor [2002] NSWLEC 186 PROSECUTOR: Penrith City Council PARTIES : DEFENDANTS: 24/7 Waste Bins Pty Ltd (ACN 097 533 723) Mark Reid (also known as Craig Floyd, Craig Adam Floyd and Craig Adam) FILE NUMBER(S) : 50036 of 2002 and 50037 of 2002 CORAM: Lloyd J KEY ISSUES: Prosecution :- failure to comply with development consent - plea of guilty - penalty LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999 s 22 Environmental Planning and Assessment Act 1979 s 76A(1), s 124(1) and s 125(1) Environment Protection Authority v Middle Harbour Constructions Pty Ltd (2002) 119 LGERA 440; Pearce v The Queen (1998) 194 CLR 610; CASES CITED: R v Place (2002) !89 ALR 431; R v Thomson (2000) 49 NSWLR 389; Wilkie v Blacktown City Council & 3 Ors [2002] NSWCA 284 DATES OF HEARING: 30/09/2002 DATE OF JUDGMENT: 10/18/2002 PROSECUTOR: Mr D Jordan (barrister) SOLICITORS: Gadens Lawyers LEGAL REPRESENTATIVES: DEFENDANT: Mr B Dennis SOLICITORS: Dennis & Company JUDGMENT: - 15 - IN THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES 50036 of 2002 and 50037 of 2002 Lloyd J 18 October 2002 PENRITH CITY COUNCIL Prosecutor v 24/7 WASTE BINS PTY LTD (ACN 097 533 723) MARK REID (also known as CRAIG FLOYD, CRAIG ADAM FLOYD AND CRAIG ADAM) Defendants JUDGMENT Background 1. There are two prosecutions before the Court. In summons No. 50036 of 2002 the defendant, 24/7 Waste Bins Pty Ltd, is charged with an offence that, between 12 September 2001 and 22 February 2002, it carried out activities contrary to ss 76A(1) and 125(1) of the Environmental Planning and Assessment Act 1979 ("the EP&A Act"). The particulars furnished in support of this charge allege: (a) The defendant carried out development, namely, the use of a portion of land described as Lot 41 DP 31908 and known as 32-36 Charles Street St Marys ( the Land ), for the purpose of storing and sorting waste and other material ( the Development ). (b) An environmental planning instrument, namely, the Penrith Local Environmental Plan 1996 (Industrial Land), provided that the Development may not be carried out without development consent (c) The development was not authorised by any such development consent. 2. In summons No. 50037 of 2002 the defendant, Mark Reid, also known as Craig Adam Floyd, Craig Adam and Craig Floyd, is charged with an offence that, between 12 September 2001 and 22 February 2002, he aided, abetted, counselled or procured the commission of an offence by 24/7 Waste Bins Pty Ltd ("the Company") contrary to ss 76A(1) and 125(1) of the EP&A Act. The particulars furnished in support of the charge allege: (a) The defendant was the director and secretary of the Company. (b) The defendant had effective control of the Company. (c) Under the defendant's control, the Company carried out development, namely, the use of a portion of the land described as Lot 41 DP 31908 and known as 32-36 Charles Street St (the Land), for the purpose of storing and sorting of waste and other material (the Development). (c) [sic] An environmental planning instrument, namely, the Penrith Local Environmental Plan 1996 (Industrial Land), provided that the Development may not be carried out without development consent. (d) The Development was not authorised by any such development consent. 3. At the commencement of the hearing the individual defendant, who has now changed his name to Craig Floyd, changed his plea of not guilty to a plea of guilty. Likewise the corporate defendant of which the individual defendant is the sole director, company secretary and shareholder, has similarly changed its plea of not guilty to a plea of guilty. 4. The defendant has changed his name a number of times: from Craig Adam to Mark Reid, to Craig Adam Floyd and now to Craig Floyd; the most recent change occurring earlier this year. The latest change of name is suggested by the prosecutor as being an attempt to avoid service in these proceedings. According to the evidence of the process server, whose evidence is corroborated by the defendant, the following occurred when he served the summonses, orders and supporting documents on the defendant: [5] I had a conversation with Mr Reid to the following effect: Mr Johnston: "You are Mark Reid. I have been requested to serve you with these documents pertaining to proceedings in the Land and Environment Court. Will you accept Service?" Mr Reid: "No, mate. You've got the wrong person. It's not me" and he produced a drivers licence bearing the name of Craig Floyd. Mr Johnston: "You have been personally identified to me as being Mark Reid. I have been requested to serve you with these documents pertaining to proceedings in the Land and Environment Court. Will you accept service?" Mr Reid "No, it's not me." Mr Johnston: " I am duly serving you with these documents". [6] I then placed the documents at Mr Reid's feet. 5. On this aspect the defendant gave the following evidence: Q. Mr Floyd, you have had a few name changes? A. That's correct. Q. Before moving to the specifics, is there any particular, any general reason why you find it helpful to change your name? A. I don't know. Q. You don't know why you change your name? A. Not really. Q. You don't really know why you change your name? A. I changed my name, I still changed my name but it's for no specific interest. Q. You changed your name just on a whim for no reason? A. I did, yes. Q. On which occasion? A. On several occasions. Q. So on several occasions that you've changed your name you didn't do it for any particular reason? A. No, no. Q. Well, I suggest to you that that's just ridiculous. HIS HONOUR: Is that a question? JORDAN: It was a proposition, it was a suggestion. DENNIS: I suppose I should object to it, your Honour. It's not really reasonable cross examination to make statements like that, it doesn't call for a response from the witness and I'd ask for that to be struck out. HIS HONOUR: Well, the witness had the opportunity to respond if he wished. DENNIS: Yes, your Honour. … Q. You change you name from Mark Reid to Craig Floyd? A. That's right. Q. You changed your driver's licence from Mark Reid to Craig Floyd on 2 May? A. I probably did, yes. Q. Is it still you evidence that you did that for no reason? A. Yes. Q. Are you quite sure that you did not change your name because you thought it might help you evade service of the summonses giving rise to these proceedings? A. No, I didn't. Q. You didn't do it for that reason? A. No. Q. You didn't do it for any reason at all? A. No. Q. Then on 11 May, 2002 you were met at a cinema by a service agent, do you remember that? A. Outside the cinemas, yes, someone dropped a big pile of documents at my feet. Q. A big pile of documents? A. Yeah. Q. That was you though? A. Yes, it was me. I didn't drop the documents, someone else did that. Q. No, but this person came up to you, asked you whether you were Mark Reid? A. That's right. Q. You said that you weren't? A. That's right, legally you can't use the old name I've been told when you change your name or something. … Q. Mr Floyd, I suggest to you that the sole reason for changing your name on 30 April so that you would have that driver's licence when you were served personally in May was to evade these proceedings? A. If that's what you like to think, yes, but no. Q. I suggest to you that the reason that you were so concerned to evade these proceedings is because you knew that you had been acting unlawfully and that ultimately you had to do something to correct what had occurred? A. No, I wasn't doing that. 6. As noted above the individual defendant gave an explanation for denying to the process server that he was Mark Reid. He was, however, less than helpful when served. He did not say that he was the same person as the person formerly known as Mark Reid. I also find the defendant's explanation for changing his name as simply not believable. A person does not change his or her name for no reason at all. Otherwise why go to the trouble, such as changing one's driver's licence? Here the defendant has changed his name not just once, but on several occasions. Again, for no reason at all! In my opinion, if the defendant's change of name was not for the purpose of avoiding service (and its consequences) then he would have accepted service, acknowledging that he is one and the same person as Mark Reid. In other words, I am satisfied beyond a reasonable doubt that the defendant's lack of any explanation for his change of name and his subsequent conduct demonstrates that it was for the purpose of avoiding service of the summonses and orders. The Facts 7. As noted above, at the commencement of the hearing the defendants changed their pleas of not guilty to pleas of guilty. As a consequence the Court did not, as is usual on pleas of guilty, have the benefit of an agreed statements of facts. The plea of guilty is nevertheless an admission of all the elements of the offence; and the essential facts are not in dispute. I now set out my findings of fact on the evidence which was adduced and which I find proved beyond a reasonable doubt. 8. On 7 November 1997 Penrith City Council ("the council") granted development consent to Blackhurst Transport Pty Ltd to use Nos. 32-36 Charles Street, St Marys for development described as "transfer and sorting facility for soil and concrete in accordance with plans submitted to Council on 7 October 1997". In July 2001 the leasing manager for the property, Mr M M Vinski, showed the property to Mr M Reid (as he was then called) who had told him that he was looking for a recycling yard. Mr Vinski did not give Mr Reid a copy of the development consent on that day, but faxed the first page of that document to him in about mid July 2001. The first page of the development consent clearly describes the development for which consent was granted. Following the visit to the property Mr Vinski received a formal application for lease form in the name of 24/7 Waste Bins Pty Ltd that was signed by Mr Reid. Mr Reid requested and was allowed early access to the land. It appears that this occurred in either late July 2001 or early August 2001. Although no formal lease was ever executed, rent payments were made by (and receipts therefore made out to) 24/7 Waste Bins Pty Ltd. 9. On 12 September 2001 the property was inspected by three officers of the council, Mr L J Cafarella, Mr J P May and Ms S Jefferys. They saw stockpiles of green waste (being tree loppings and grass clippings), plasterboard, cardboard, bricks, carpet waste, timber, scrap metal, construction/demolition waste, broken concrete, soil, asphalt waste and broken tiles at the property. They also saw five skip bins and one in particular containing asbestos. The other four skip bins contained construction waste and mixed household clean-up waste. Whilst they were there a truck driven by Mr Reid (as he was then called) and containing two bins of waste arrived. 10. Mr Cafarella had a conversation with Mr Reid, who said that he was Mark Reid and he was "a recycler" and "this is my bin business". Mr Cafarella told Mr Reid that he did not have approval for such a business, that a development consent was issued for a specific purpose involving soil/concrete recycling, and directed him to cease such use of the site and clean it up. On the same day Mr Cafarella sent a letter to Mr Reid directing him to cease further transportation of waste to the premises, remove all non-conforming waste from the premises and cease the use of the premises for the operation of a waste skip business. 11. Letters were then sent to Mr Reid by the council's solicitors on 7 November 2001, 15 November 2001 and 20 November 2001 directing him to cease his activities on the site and to commence removing all waste, skip bins and other materials. 12. Subsequent inspections were carried out by Mr Cafarella and other officers of the council over the next few months, on which occasions it was noted that the amount of waste at the site had increased. On an inspection on 14 November 2001 there were, in addition to the materials described earlier, two bins full of asbestos. On an inspection on 20 November 2001 there was one bin containing asbestos, other bins containing green waste, general builder's waste, clay, shale, soil and two bins full of general clean up waste including containers marked "Dangerous Goods Containers" and empty paint cans. On each subsequent inspection the waste had been stockpiled into higher piles. As at 27 August 2002 the total volume of the waste in the stockpiles was calculated to be 1.449 cubic metres. 13. The defendant acknowledges in his evidence that he had been given the first page of the development consent. He further said, however, that he subsequently attended the council's office and inquired as to whether he could have a skip business at the property and he was told by "the girl at the front desk" that he could. The defendant was asked about his visit to the council in cross-examination: Q. You did, however, on your evidence go to the council? A. That's correct. Q. And asked some – you've referred to her as a girl? A. Someone at the front desk, yes. Q, Was it a man or a woman? A. It was a lady. Q. Was it a young woman or an older woman? A. Probably middle aged. Q, Middle aged? A. I think so, yes. Q. You called her a girl when you gave your evidence? A. Well, lady, girl. HIS HONOUR: It depends what age you are coming from, Mr Jordan. JORDAN: That's a fair comment, your Honour. I think Mr Floyd is probably coming at it more from my age. 14. The defendant agrees that he did not take the copy of the development consent which he had with him to the council when he spoke to the girl/middle aged lady. In this respect he gave the following evidence: Q. Well, I suggest to you that if you were really serious about this given that you had identified that this document would not cover all of your activities, if you were serious you would have taken the document, you would have asked for clarification with reference to the document from council? A. I should have, yes. Q. Well, I'm suggesting to you that you didn't do that because in fact you never went to council and checked this out at all? A. I did. Q. And I'm suggesting to you that your evidence this morning about going to see a girl at the council and having this very informal conversation is simply not true? A. No, it is true. Q. And that's why when you're asked to re-visit it very briefly afterwards you talk about this person is a middle aged woman rather than a girl? A. Well, girl, middle aged woman. 15. I set out below under the heading "Conclusion" my findings as to this evidence. 16. The defendant agrees that he was given a clear and unequivocal notice on 12 September 2001 that his activities were not authorised by the development consent. He also gave the following evidence: Q. I suggest to you that by reference to the photographs attached to Mr Cafarella's affidavit that it is very clear that you brought on a considerable amount of general household and building waste on to the site after the clear direction on 12 September, 2001? A. We probably did though I can't remember . 17. The defendant agrees that at least 50 per cent of the material collected by his skip business was general building waste and household refuse, the other 50 per cent being concrete, bricks and soil. It is clear, therefore, that the bulk of material brought onto the site was not authorised by the development consent. 18. A companies search shows that the company known as 24/7 Waste Bins Pty Ltd was incorporated on 18 July 2001 and that Mark Reid is the sole director and company secretary. The individual defendant says that his skip business has failed and his truck has now been repossessed. The Submissions of the Parties 19. Mr D Jordan, appearing for the prosecutor, makes the following submissions: (1) the utilitarian value of the pleas is low having regard to their lateness; (2) whilst agreeing to reinstate the land is some evidence of contrition, there is a compelling body of evidence that the defendants did not have much choice; (3) there is no direct evidence of contrition or remorse; (4) whilst acknowledging that some 50 per cent of his business was not covered by the development consent, Mr Floyd (then known as Mr Reid) did not take the consent with him to the council; (5) Mr Floyd/Reid's varying description of the person at the council as "a girl" and later "a middle aged woman" suggests that he spoke to no-one; (6) Mr Floyd/Reid changed his name to evade service; (7) the offences are serious and were done in blatant disregard of the council's direction given on 12 September 2001; (8) this was an activity engaged in for profit; (9) this was not an isolated occurrence or an uncharacteristic aberration (referring to Wilkie v Blacktown City Council& 3 Ors [2002] NSWCA 284); and (10) the main impact of the penalty should be imposed on Mr Floyd/Reid since the company is but a shell operating at Mr Floyd/Reid's direction. 20. Mr B Dennis, appearing for the defendants, makes the following submissions: (1) the defendants admit that they have breached the EP&A Act; (2) the defendants have agreed to reinstate the land to its pre-existing condition; (3) the costs of reinstating the land will be in the order of $40,000–$50,000; (4) Mr Floyd/Reid has not sought to hide behind the corporate identity; (5) the business has failed and has caused Mr Floyd/Reid a loss; and (6) Mr Floyd/Reid "has not have a lot of money" (from which I infer that he is not able to pay any substantial fine). Conclusions 21. I have set out (in par [6] above) my conclusions as to Mr Reid's change of name to Mr Floyd. I am satisfied beyond reasonable doubt that he attempted to avoid service of the summonses and orders as well as the supporting documents in these proceedings and that he attempted to rely upon his change of name for that purpose. 22. It is not disputed that Mr Floyd/Reid was given the first page of the development consent by the leasing manager for the property, Mr Vinski, in mid July 2001. I find that he was therefore aware that the consent for the development on the property was for a transfer and sorting facility for soil and concrete. Mr Floyd/Reid concedes that his waste bin business was not limited to soil and concrete and that some 50 per cent of the waste collected on the site were general demolition and household waste. 23. Despite Mr Floyd/Reid's denial, I am unable to accept his evidence that he went to the council and was told by someone that the land could be used as a skip business. He was inconsistent in his description of the person who gave him this information. It is highly unlikely that a person at the council would have said that the land could be used for such a purpose, being a use of land that requires development consent. It is conceded by Mr Floyd/Reid that a copy of the development consent that was granted was not brought with him to the council, neither was it discussed. Mr Floyd/Reid agrees that he was directed on 12 September 2001 to cease further transportation of waste to the premises and to cease using the premises for the operation of a skip business. The evidence satisfied me beyond reasonable doubt, however, that he continued to so use the premises for a period of several months thereafter, as evidenced by the ever-increasing amount of waste which was brought in and dumped on the land. 24. In these circumstances I find that the offence was serious. It was done in blatant disregard of the council's direction given on 12 September 2001 and it was done for the motive of profit. 25. I accept the prosecutor's submission that this was not an isolated occurrence or an uncharacteristic aberration. In Wilkie v Blacktown City Council it was noted that Mr Floyd/Reid and another company controlled by him, Graveyard Recycling Pty Ltd had unlawfully used land at Marsden Park as a tip and recycling yard. The penalty to be imposed must, therefore, be one which serves the dual purpose of both a specific and a general deterrent. 26. I accept, as I must, the pleas of guilty, as a mitigating factor (s 22 of the Crimes (Sentencing Procedure) Act 1999). I accept the submission of the prosecutor, however, that the utilitarian value of the pleas is low having regard to their lateness. The pleas were also made in circumstances where the evidence against the defendants suggests that it was a recognition of the inevitable. In R v Thomson (2000) 49 NSWLR 389, the Court of Criminal Appeal held that the Court should adopt a 10-25 per cent discount on sentence for the utilitarian value of the plea; and in this respect the primary consideration is the timing of plea. This suggests to me that the discount in the present case should be in the order of 10 per cent. 27. It is submitted on the defendants' behalf that the business has failed and that there is no capacity to pay any substantial fine. No evidence was adduced, however, to show the income or assets of either defendant. I note, however, that in his application for a lease of the land dated 19 July 2001, signed by Mr Floyd/Reid, it is stated that the net assets of Mr Floyd/Reid are $320,000. I do not accept, therefore, the submission that there is little or no capacity to pay any substantial fine. I do take into account, however, the costs of reinstating the land which the defendants have agreed to undertake (Environment Protection Authority v Middle Harbour Constructions Pty Ltd (2002) 119 LGERA 440). 28. In R v Thomson the Court of Criminal Appeal held that a total discount on sentence of up to 35 per cent, encompassing all relevant matters, may be appropriate. In the present case I have noted that it is not appropriate to allow a full discount for the utilitarian value of the plea. Having regard, in particular, to the agreement to undertake the reinstatement of the land at a reasonably significant cost, a total discount encompassing all relevant matters of 20 per cent is appropriate. 29. The maximum penalty for these offences is $1.1 million (s 126 of the EP&A Act). The appropriate penalty, in my opinion, is $120,000 which, as noted, should then be discounted by 20 per cent to $96,000 for each offence. In applying the principle of totality, having regard to the fact that the corporate defendant, the company, is wholly owned by the individual defendant, the aggregate sentence should be reduced to $100,000 (Pearce v The Queen (1998) CLR 610 at 623-624; R v Place (2002) 189 ALR 431 at 456-457). Orders 30. I therefore make the following orders: No. 50036 of 2002- (1) The defendant, 24/7 Waste Bins Pty Ltd (ACN 097 533 723), is convicted of the offence as charged. (2) The defendant is fined the sum of $5,000. (3) The defendant must pay the prosecutor's costs in accordance with s 52(2) of the Land and Environment Court Act 1979. (4) The exhibits may be returned. No. 50037 of 2002- (1) The defendant, Mark Reid, also known as Craig Floyd, Craig Adam Floyd and Craig Adam, is convicted of the offence as charged. (2) The defendant is fined the sum of $95,000. (3) By consent, pursuant to s 124(1) of the Environmental Planning and Assessment Act 1979: Whereas: 1. The defendant has pleaded guilty to the offence contrary to ss 125(1) and 76A(1) of the EP&A Act identified in the amended summons filed in these proceedings on 5 August 2002. 2. The offence had the effect of altering a site at the north eastern corner of the land described as Lot 41 DP 31908, known as 32-36 Charles St Marys ("the site"), by bringing onto the site a variety of waste and other material. 3. The location and volume of the various stock piles of waste and other material on the site as at 28 August 2002 is depicted in the attached survey diagram (the Survey Diagram) 4. The site is owned by Mr Gusto Camilleri and Mrs Beverly Patricia Camilleri as joint tenants ("the owners"). 5. For the purposes of these orders, the owners have agreed to grant the defendant access to the site on the following terms: (a) the front gate to the site is to be secured by a chain and padlock; (b) the defendant and the owner shall each hold a key to the padlock securing the front gate to the site; (c) the defendant is only access the site for the purposes of these orders and only between the hours of 7.00 am and 7.00 pm; (d) upon completion of his obligations under these orders the defendant is to return to the owners the key to the padlock securing the front gate to the site. The Court orders: 6. Within 60 days from the date of these orders the defendant is to remove the following waste and other material from the site as depicted in the Survey Diagram: (a) one half of the material in stockpile S1; (b) one half of the material in stockpile S2; and (c) all of the material in stockpiles S3, S5, S7, S8, S9 and S10. 7. The material removed from the site is to be disposed by the defendant at premises lawfully able to accept that material. 8. Upon request by the prosecutor, the defendant is to identify where material removed from the site has been taken and provide to the prosecutor all relevant supporting documentation, such as dockets and receipts from licensed waste management facilities. (4) The defendant must pay the prosecutor's costs in accordance with s 52(2) of the Land and Environment Court Act 1979. (5) The exhibits may be returned. I hereby certify that the preceding 30 paragraphs are a true copy of the reasons for judgment herein of the Honourable Mr Justice Lloyd. Associate Dated: 18 October 2002 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.