Land and Environment Court of New South Wales CITATION : Warringah Shire Council v Sahade [2004] NSWLEC 333 PROSECUTOR PARTIES : Warringah Shire Council DEFENDANT Anthony Sahade FILE NUMBER(S) : 50002 of 2004 CORAM: Pain J KEY ISSUES: Prosecution :- Carrying out of development without consent - Works relating to an existing car wash Crimes Sentencing Procedure Act 1999 s10 LEGISLATION CITED: Environmental Planning and Assessment Act 1979 s 125(1), s149E Warringah Local Environmental Plan cl 7 City of Sydney v Schwartz [2003] NSWLEC 201; Hornsby Shire Council v Symon [2003] NSWLEC 410; Ku-ring-gai Municipal Council v Kizana [2002] NSWLEC 187; CASES CITED: Mosman Municipal Council v Menai Excavations Pty Limited [2002] NSWLEC 132; Pittwater Council v Walters [2004] NSWLEC 75; R v Thompson; R v Houlton (2000) 49 NSWLR 383; Woollahra Municipal Council v Consolidated Byrnes Holdings Pty Limited [2002] NSWLEC 125 DATES OF HEARING: 27/05/2004 EX TEMPORE 05/27/2004 JUDGMENT DATE : PROSECUTOR Mr A Hudson (solicitor) SOLICITORS LEGAL REPRESENTATIVES: Wilshire Webb DEFENDANT Mr A Sahade (in person) JUDGMENT: IN THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES 50002 of 2004 Pain J 27 May 2004 WARRINGAH SHIRE COUNCIL Prosecutor v ANTHONY SAHADE Defendant Ex Tempore Judgment The Offence Charged 1. This is a Class 5 matter in which Mr Anthony Sahade 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 did carry out development on land between 3 June 2003 and 5 September 2003 without development consent having been obtained. I note in the summons the land is identified as 559 Pittwater Road Brookvale and the relevant local environmental planning instrument which has been breached is the Warringah Local Environmental Plan, in particular cl 7. 2. I also should note for the record that the nature of the development which is the subject of the charge concerns the erection of the following buildings: (i) a car wash building at the north west portion of the land; (ii) various buildings within the shop building including new café, with kitchen facilities and new internal ceiling; (iii) buildings externally connected with the shop building including a terrace, balustrade and bifold glass doors, new facia on the main canopy structure, cladding on support columns of the main canopy structure, full metal columns approximately 2.8 metres high adjacent to the Victor Road frontage of the land; (iv) shade devices and sails between the Victor Road frontage and the main canopy structure; and finally (v) metal railings including four cross beams functioning as cleaning apparatus extending along the north eastern boundary of the land. 3. Mr Sahade has pleaded guilty to the offence with which he is charged so that the essential legal ingredients of that offence are admitted. I further note that the maximum penalty for both individuals and companies in relation to the offences under s 125(1) of the EP&A Act is $1.1 million. I note that there is a Statement of Agreed Facts which essentially sets out all the background relevant to this matter as follows: Prior to 3 June 2003 the land was owned by BP Australia Pty Ltd (BP). A contract for the sale of the land from BP to Lenjade Pty Ltd (the owner) was exchanged on 3 June 2003. After 3 June 2003 Crystal Carwash Café Pty Ltd (the occupier) commenced occupation of and had control of the land. At all material times the defendant was the director and secretary of the owner and the sole director and the owner of one of the two shares of the occupier. At all material times the defendant was the principal and person in control of and controlling the actions of the owner and the occupier. On 23 May 1980 the Council issued development consent No 80/143 to BP for the land to be developed by: "Demolition of existing service station on-site, and erect a new self-service station with ancillary car wash." (the 1980 consent) On 23 July 1980 the Council issued building approval no 2543/80 in association with the 1980 consent. On 16 October 1984 the Council issued development consent no 84/455 to BP for the following development: "Extend the existing car wash facility" (the 1984 consent) On 26 October 1984 Council issued building approval no BA2945/84 in association with the 1984 consent. On 20 June 2003 sewage was backing up into the Manly Warringah Leagues Club indoor swimming pool because of a blocked sewer main. On 7 August 2003 the operations manager for the Manly Warringah Leagues Club went onto the land, which was still surrounded with hoardings, and observed a number of workmen on the land. The carwashing bay that is now constructed in the northwest corner of the land had not been constructed at this time and a number of workers were carrying out electrical work on the land. Mr Nicholson was advised by the defendant that his plumber was looking at the problem. On the same day Mr Nicholson advised the Council that works were being carried out on the site. On 7 August 2003 a council officer inspected the land and observed new building works being carried out in association with the existing service station, shop/canopy. On 25 August 2003 Council received a development application for the land. The applicant was Kingsford Carwash Pty Ltd. This company was owned and controlled by the defendant. The description of the proposed development/work was as follows: "Refurbishment of existing carwash and conversion of convenient store to café." On 3 September 2003 the defendant finalised the sale of the land with BP and the defendant's company became the owner of the land on this date. On 5 September 2003 at approximately 8.45am the land was inspected by Mr Darryn Lang, a ranger employed by the Council. Mr Lang observed the various trades people carrying out work on the land. There were workmen on ladders carrying out steel work in the carwash area towards the rear of the land and there were other workmen preparing concrete formwork for planter boxes. On 5 September 2003 Mr Mark Brisby, Council's Team Leader in Environmental Compliance had a telephone conversation with the defendant. The defendant was advised that the building works required development consent and that any use of the land, as a carwash use, required consent. The defendant was directed to stop work. On the same day Mr Brisby also advised the defendant's solicitor that the Council did not agree with the opinion expressed in the letter from the solicitor dated 11 August 2003 that the works did not require development consent. On 5 September 2003 the Council faxed a letter to Comino Prassas solicitors confirming the direction to stop work and the advice that development consent was required for the works. The defendant's carwash establishment and café use commenced on the weekend of 6/7 September 2003. The following building works were erected for the carwash establishment and café without consent: (a) carwashing bay in northwest portion of the subject site (b) various buildings within the shop building including a new café counter with kitchenette facilities and a new internal ceiling (c) buildings externally connecting with the shop building including a terrace and balustrade and bi-fold glass doors (d) new facia on main canopy structure (e) cladding on to support columns of main canopy structure (f) four (4) metal columns approximately 2.8 metres high adjacent to the Victor Road frontage of the property (g) shade devices/sails between the Victor Road frontage and the main canopy structure, and (h) metal raining including four (4) cross beams functioning as cleaning apparatus extending along the northeastern boundary of the subject site On or about 31 October 2003 a building certificate application and survey was lodged by the owner for the buildings, the subject of these proceedings. On 17 February 2004 the Council approved the development application and the building certificate application. 4. The Defendant's company is the occupier of the premises at 559 Water Road Brookvale and it operates a car wash at those premises. The Defendant has represented himself in the sentencing hearing before me and the Council was represented by its solicitor, Mr Hudson. 5. At issue is the building work carried out by the Defendant's company at the development site, not the use of the land as a car wash which use was permitted under the terms of earlier development consent identified in the extract from the Statement of Agreed Facts above. The Prosecutor submits that there is no environmental harm as a result of the offence charged and also that the offence has been regularised in the sense that the Council subsequently issued a development consent and building certificate for the work carried out by the Defendant's company. The development application was lodged on 25 August 2003 which was before the Defendant's company first used the car wash in early September 2003. I further note that development consent was issued by the Council in February 2004. The Gravity of the Offence 6. The key issue in this matter is the gravity of the crime. The Prosecutor submits that the crime is a serious one as the Defendant's company failed to obtain development consent for commercial premises in circumstances where the illegal work carried out was not minor. It involved more than cleaning up the site and repair work and included construction of new structures such as sail cloths and the erection of signage and the extension of existing structures. Further, it is said by the Council that these works were carried out despite the issuing of verbal and written directions to stop the work by Council officers. 7. The Defendant argued the works were not major, being more in the nature of refurbishment of existing structures rather than the erection of new structures. The Defendant also argued that, as the Council had now approved the building work with the issuing of a development consent and a construction certificate, the matter had been effectively regularised. Further the Defendant submitted that as Council did not issue any formal stop work orders or notices to the Defendant or his company it could not be said this was a serious matter. 8. I prefer the Prosecutor's submissions on gravity and consider that the crime is a reasonably serious one. Further, it seems to me there is an obligation on the Defendant to ensure that he is complying with the law, not merely to wait for the Council to tell him that what he is doing is illegal. The building work was done to enable the Defendant to operate commercial premises. 9. I was referred by the Prosecutor to s 149E of the EP&A Act which expressly preserves the liability of a person to be prosecuted for an offence under s 125 in circumstances where a building certificate has been issued by the Council in respect of the works for which a person has failed to obtain the necessary consent and that is the situation before me in this matter. Section 10 of the Crimes Sentencing Procedure Act 1999 10. The Defendant has asked that s 10 of the Crimes Sentencing Procedure Act 1999 be applied. Section 10(1) of the Crimes Sentencing Procedure Act specifies that, without proceeding to conviction, a court that finds a person guilty of an offence may make one of three specified orders, and in particular, an order directing that the relevant charge be dismissed. 11. The factors I must take into account in deciding if I should apply this section are set out in s 10(3). The matters I must have regard to are: (a) the person's character, antecedents, age, health, mental condition; (b) whether or not the offence is of a trivial nature; (c) the extenuating circumstances in which the offence was committed; and (d) any other matter the Court thinks appropriate to consider. 12. I do not consider the offence to be trivial for the reasons I have already stated. I do not accept that this is a technical matter only. 13. I have heard evidence from the Defendant about his personal circumstances at the time of the offence. The Defendant advised the Court in his evidence that he was under considerable personal stress at the time, due to family circumstances concerning his daughter. I have to say this evidence, while no doubt sincerely given by the Defendant, does not appear to me to relate to extenuating circumstances in relation to which the offence was committed. Further, it does not seem to me there is anything in the Defendant's character, age, health or mental condition which suggests that s 10 ought be applied and I do not apply it. Proportionality 14. It is, therefore, necessary that I consider further general sentencing principles in deciding what the penalty should be in this matter. I note that on the question of proportionality it is important that the Court, where necessary, give consideration to cases to ensure that any penalty this Court imposes in this case can be said to be even handed considering other cases that have been before the Court. In that regard, I was referred by the Prosecutor's solicitor to a number of cases, Ku-ring-gai Municipal Council v Kizana [2002] NSWLEC 187 , Woollahra Municipal Council v Consolidated Byrnes Holdings Pty Limited [2002] NSWLEC 125 , Hornsby Shire Council v Symon [2003] NSWLEC 410 , Pittwater Council v Walters [2004] NSWLEC 75 and the City of Sydney v Schwartz [2003] NSWLEC 201. While it was of some assistance to the Court to view those various judgments, each case must be considered on its facts and none of those cases are directly relevant to the facts before me. General Deterrence 15. On the issue of general deterrence it is important in an offence of this nature that I reinforce the need to comply with the EP&A Act. The prosecutor referred me to Mosman Municipal Council v Menai Excavations Pty Limited [2002] NSWLEC 132, a decision of Lloyd J, which emphases the requirement to consider that the need to obtain development consent under the EP&A Act is a significant matter. This has also been recognised on numerous other occasions in this Court and I consider this is important in this case. Specific Deterrence 16. The Defendant has four other car washing facilities elsewhere in Sydney, his evidence is that in relation to those sites he or his company has had to obtain development consent for various works at different sites. While this may have been in different circumstances to those before me, the Defendant and his company is engaged in commercial activities and the Defendant must be assumed to be well aware of the need to comply with the planning laws. Mitigating Factors and Penalty 17. It seems to me that a penalty in the region of $25,000 is appropriate. However, I also note there are a number of mitigating matters which I should apply in reducing that penalty and I will outline those now. I should note before doing so that no submission has been put to me in relation to the Defendant lacking the means to pay any penalty and, given the lack of submission on that issue, I am not taking that into account. I also note that the Council stated that it is not aware of there being any prior convictions recorded for the Defendant. 18. The Defendant has pleaded guilty at the earliest opportunity and it is certainly well settled law as applied in this Court based on the case of R v Thompson ; R v Houlton (2000) 49 NSWLR 383 that a full discount of 25 per cent is warranted in the circumstances of this case and I will take that into account in reducing the penalty in this matter. 19. I also note the Defendant expressed contrition and remorse in his oral evidence before the Court and I also take that into account. The Prosecutor's costs are substantial with an estimate of $20,000 to $30,000. I have to say this seems very large in the circumstances but it is not my role here to decide on the quantum of costs payable, that is a matter for negotiation, and ultimately, taxation of costs if need be between the parties but I also take into account these substantial costs. It is appropriate that there be a reduction of penalty to the amount of $16,000 in this case. Orders 20. 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 $16,000 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 of the proceedings as agreed or assessed. 4. The exhibits may be returned. 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.