Hornsby Shire Council v Surace [2004] NSWLEC 716

Land and Environment Court of New South Wales

CITATION : Hornsby Shire Council v Surace [2004] NSWLEC 716 PARTIES : Hornsby Shire Council (Prosecutor) Ricky Surace ( Defendant) FILE NUMBER(S) : 50092 of 2003 CORAM: McClellan CJ Environmental Offences :- Sentence Demolition and damage to a heritage listed garden No development consent KEY ISSUES: Offence proved Conversations between defendant and Council's heritage officer Charge dismissed Costs: Council's role in the defendant's breach of the law LEGISLATION CITED: Environmental Planning and Assessment Act 1979 (NSW) s 76A(1) CASES CITED: DATES OF HEARING: 14 September 2004 EX TEMPORE 09/14/2004 JUDGMENT DATE :

P W Larkin (Prosecutor) Michell Sillar (Solicitors - Prosecutor)

LEGAL REPRESENTATIVES: I Lloyd QC (Defendant) Minter Ellison (Solicitors - Defendant)

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

McCLELLAN J

TUESDAY 14 SEPTEMBER 2004

50092/03 HORNSBY SHIRE COUNCIL v SURACE

JUDGMENT 1 HIS HONOUR: This matter is before me this morning on the question of sentence. The defendant was charged with carrying out development which required development consent pursuant to s 76A(1) of the Environmental Planning and Assessment Act 1979 (NSW) by demolishing and damaging a heritage item, being a garden listed under Schedule D of the Hornsby Local Environmental Plan 1994, without the consent of the Council. 2 The matter was heard by me in March of this year when I found the offence proved. In my reasons for judgment I set out the findings which led me to that conclusion. I have had regard to those findings in making the decision which must now be made in relation to penalty. 3 Although I have had regard to all of the findings, I should shortly indicate that I found that the defendant was the owner of the relevant land which has on it a conventional dwelling situated with a curtilage of about 2700 square metres. 4 The site is located one lot from the Pacific Highway. Between the highway and the land is a service station. The offence described in the summons was as follows: "The demolishing and damaging of part of the garden in and on the land where the garden on the land is a heritage item listed under Schedule D of the HSLEP [Hornsby Shire Local Environmental Plan], without the prior written consent of the Prosecutor." 5 In the relevant schedule to the LEP the property, 2 Waratah Road, Berowra, is listed as a heritage item with the following description, " 'The Laurels' and garden." 6 At the hearing, it was conceded that the defendant had conducted physical work which had the effect of damaging various trees, shrubs and other items within the garden. However, the defendant submitted that the prosecution would fail because the defendant carried out the work with an honest and reasonable belief that the rear yard of the property was not the subject of cl 18 of the LEP and consent was not required. 7 In my reasons for decision, I related the facts upon which this defence was based and ultimately found that it could not be sustained because, although I accepted the defendant had a mistaken belief, it was a mistaken belief as to the law and not one of fact. 8 In my reasons for judgment I related the fact that the house has a front garden and, at the front of that garden, there is a stand of camphor laurel trees. The camphor laurel trees are significant and add to the aesthetic quality of the house. The garden also contributes to its aesthetic quality. 9 I found that although the rear garden of the property was damaged, the front garden was untouched, as were the camphor laurel trees. Accordingly, in so far as any member of the public is able to appreciate the heritage quality of the house and garden, this has not been significantly affected. No doubt the purpose of maintaining this property as a heritage item is to enable the public to appreciate the house in its garden setting. If that is the purpose, then no environmental damage has been suffered. 10 It would appear that some years ago the property was owned by Mrs Sinclair-Irvine and her husband. Mrs Sinclair-Irvine was a keen gardener and developed cottage gardens on parts of the property. The rear garden was developed with various trees and shrubs, and also comprised facilities for the housing of chickens and other animals. 11 The defendant indicated that, upon coming to own the property, he discovered vermin, a snake and spiders. Being concerned for his children, he was keen to remove the risks which were inherent in the garden as he found it. I accept his evidence. 12 Critical to this case are conversations which occurred between the defendant and Ms Lisa Trueman, a heritage architect employed by the Council. 13 As I have related in my earlier reasons, the defendant made inquiry of Ms Trueman and, in particular, made inquiry as to the nature of the heritage listing of the property. There were differences in the account of the two as to the content of the conversation. Although there was an obligation on the prosecutor to have produced relevant material, Ms Trueman's file notes of the conversations were not produced but at the request of the defendant. The file notes were important, in particular Ms Trueman's acknowledgement in her file note of the conversation which occurred in January but of which a file note was only made some weeks after that conversation: "I had explained that the heritage listing related to the house and the camphor laurel trees." 14 I accept the evidence of the defendant with respect to the conversation he had with Ms Trueman. Accordingly, I came to the conclusion, beyond any doubt, that the defendant had understood from the conversation he had with Ms Trueman that the heritage listing related to the house and camphor laurel trees. Beyond that, Ms Trueman suggests in her file notes that she also indicated that apart from retaining the house and trees, there must be "an adequate curtilage … retained to ensure the setting of the house was not compromised and that any significant outbuildings or garden elements that contribute to the setting of the house would need to be retained." 15 It is difficult to understand with precision the message which Ms Trueman intended to convey by these words. However, the setting of the house when viewed from any public place has been maintained notwithstanding the works which were undertaken. 16 The prosecutor says that this is not an appropriate matter for the application of s 10 but rather that a modest penalty should be imposed. Justification for this submission is my finding that although the defendant telephoned Ms Trueman the day before the work was carried out, in the circumstances I have related the defendant did not inform Ms Trueman of the full extent of the work ultimately to be undertaken. I indicated in my reasons for decision that I was satisfied that: "… if Ms Trueman had been informed that the rear of the property was effectively to be cleared of almost all vegetation but for some larger trees, the lawn removed and the garden taken away, she would have responded in a different manner to the way in which she did." 17 Although I have made this finding, I do not find that the disclosure made by the defendant was in any way deliberately misleading, nor intended in any way to secure a response from Ms Trueman which would have permitted something to occur that the defendant either knew should not take place or had doubts as to whether it was permissible. 18 Although I am not satisfied that the defendant fully disclosed the work he proposed to undertake, I am satisfied that Ms Trueman was informed that some significant vegetation would be removed. I am satisfied that this would include an indication that trees up to five metres could be removed. 19 That the prosecutor asked for a penalty rather than the application of s 10, points to the need to provide a deterrence to the public from committing offences in breach of a Local Environmental Plan. 20 There is a very significant interest which the public has in ensuring that planning law is complied with. The interests of the public in this respect are underlined by the penalty structure provided in relation to breaches of the Act, which would, in the present circumstances, lead to a maximum penalty of $1.1 million dollars for this offence. 21 Notwithstanding the need to ensure that the public is aware of the serious nature of the obligations which breaches of planning law involve, I am satisfied this is an appropriate case for the application of s 10. 22 Relevant to my decision is the fact that the defendant is a person of good character and, although the offence is not trivial in nature, the extenuating circumstances are in my view strongly in the defendant's favour. 23 I am satisfied that the defendant made genuine inquiry of the Council, having already sought information from a real estate agent as to the nature of the heritage controls on the land. I accept the defendant when he says that he made inquiry of the Council as to what work could be done to the rear of the property and I am satisfied that that inquiry was genuinely made in an earnest endeavour to obtain full information as to his obligations. If he had been a person seeking to avoid his obligations, it is likely that the last thing he would have done would have been to phone the Council and indicate that he was about to undertake work at the property. 24 I accept that the defendant could have disclosed more about the work he intended to undertake. Equally, in a conversation of the nature which occurred, the opportunity for the Council officer to have asked for precise detail of the work was available. Accordingly, I am satisfied that the offence occurred in circumstances where the defendant had a genuinely mistaken belief that he was lawfully entitled to carry out the work. That belief turned out to be wrong, but it was a belief induced by a conversation with the Council officer responsible for giving advice to the community in relation to heritage provisions of the LEP. 25 In these circumstances, I am satisfied that it is appropriate, notwithstanding my finding that the offence is proved, that the charge be dismissed and I so order. 26 The Council seeks an order for costs. It is submitted that costs to date are of the order of $55,000. In support of the application, the Council has tendered a letter written in October 2003 by the solicitors for the defendant indicating the nature of the defence which will be pursued. It is submitted that in the circumstances of that letter, the Council had little choice but to seek to prepare the matter on the assumption that the matters raised in that letter would be put in issue in the proceedings. As I have indicated, in the primary proceedings the defence was ultimately confined to a Proudman v Dayman issue. 27 In my opinion it is appropriate that there be an order for costs in this matter in the sum of $30,000. I appreciate that that sum will not fully recompense the costs the Council says it has incurred in bringing these proceedings. However, I am satisfied that if the Council had disclosed the true nature of the conversations with the defendant in the manner in which I have found them to have occurred, it is likely that considerable costs could have been saved. 28 I appreciate that the Council has brought the proceedings out of concern to ensure that the community appreciates its obligations in relation to planning law. But, in the circumstances where the breach has been significantly induced by the actions of the Council itself, I believe it appropriate that rather than full recompense being provided, it is appropriate that a significant proportion of the costs should be required to be paid. 29 Accordingly, the orders of the Court are: