> Land and Environment Court of New South Wales CITATION : Hornsby Shire Council v Symon [2003] NSWLEC 410 PROSECUTOR Hornsby Shire Council PARTIES : DEFENDANT George Symon FILE NUMBER(S) : 50038 of 2003 CORAM: Talbot J KEY ISSUES: Prosecution :- development without construction certificate - plea of guilty - penalty LEGISLATION CITED: Environmental Planning and Assessment Act 1979 s 81A(2) CASES CITED: DATES OF HEARING: 24/11/2003 EX TEMPORE JUDGMENT DATE : 11/24/2003 PROSECUTOR Mr P R Clay (Barrister) SOLICITORS McKees LEGAL REPRESENTATIVES: DEFENDANT Mr A M Pickles (Barrister) SOLICITORS Colin Biggers & Paisley JUDGMENT: IN THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES 50038 of 2003 Talbot J 24 November 2003 Hornsby Shire Council Prosecutor v George Symon Defendant Judgment Introduction 1 HIS HONOUR: The defendant, George Symon, is charged that between 7 November 2002 and 3 December 2002 he caused development to be carried out at 8 Roach Avenue, Thornleigh, being his residence, in accordance with a development consent prior to the issue of a construction certificate, a thing forbidden to be done under s 81A(2) of the Environmental Planning and Assessment Act 1979 ("the EP&A Act"). 2 The works complained of were actually carried out between 7 November 2002 and 11 November 2002 and comprised three elements. Firstly, the excavation of a trench for footings, secondly, the pouring of concrete into the trench for the purpose of construction of footings and thirdly, the pouring of the concrete slab in the location of approved extensions. 3 A private certifier had been engaged. The certifier issued a construction certificate on 3 December 2002. On its face the construction certificate appears to deal with the works that already had been carried out. 4 Notwithstanding that the works were by then complete in respect of those three aspects, the certifier nevertheless issued a certificate on 3 December 2002. It is difficult for the Court to speculate as to what really happened, but it is noted that the certifier did not even receive the plans until 28 November 2002. That is apparent from the face of the certificate yet the work was carried out between 7 and 11 November 2002. 5 Mr Pickles, who appears for the defendant, made a submission from the bar table that the defendant had a conversation with the certifier prior to carrying out the work and he then indicated to him that it would be all right to proceed. 6 I find that submission difficult to accept in the circumstances. It certainly is a question of timing, as Mr Pickles submits, but I do not think it is a question of timing in the context that he put it. One would be entitled to infer that the certifier may not have even received instructions, or at least complete instructions, until after the work had been completed. 7 Mr Clay, who appears for Hornsby Shire Council ("the council"), has informed the Court that the council raises no issue as to there being any environmental harm. Furthermore, it is an agreed fact that the works carried out prior to the issue of the construction certificate were carried out in accordance with the construction certificate once issued and in accordance with the development consent. 8 There are three penalty infringement notices incorporated in the agreed statement of facts. The first relates to an offence which is said to have been committed on 15 August 2002 when unauthorised demolition works were carried out to the rear of the same property without development consent. In respect of that infringement notice the defendant paid a fine of $600. Subsequently, a further offence was alleged on 13 November 2002, which I note is after the actual agreed dates for the work being carried out the subject of the present charge. Two notices issued on 13 November both relate to the same premises. The particulars show that they involve a complaint regarding excavation for an in-ground swimming pool. One being specifically for the removal of a tree without consent of the council. 9 Mr Pickles makes the submission that the Court should take into account the relationship between all the events being involved with the same alterations and construction being carried out at the one property. Furthermore, that there can be a distinction raised in relation to the prior matter. I think it is appropriate to take into account that it relates to a different event altogether, that is, carrying out demolition works without development consent. It may or may not be a matter about which the defendant was not fully informed as to his obligations. 10 The project is a personal project in respect of the defendant's own home. Although the defendant has engaged the company, which is a building company for which he works, he is not involved with the actual building side or aspect of the company's business, but rather in clerical administration. 11 The whole process and course of conduct that has occurred here, even ignoring the infringement notices, has taken place either without due regard to obligations under the EP&A Act or in blatant disregard of those provisions. 12 It is difficult to accept that the defendant was inadvertent about obtaining the construction certificate prior to carrying out the work because even if he was not aware of the express provisions of the EP&A Act in that regard, he is the holder of a development consent that required him to get a construction certificate. 13 So it is not a situation where, as I think Mr Pickles invites the Court to find, it can be regarded as a mistake or oversight or something of that nature, which would bring the offence down into the very lowest end of the range of penalties imposed for this type of offence. 14 The maximum penalty attributable to a breach of the EP&A Act is $1.1 million. In having regard to that maximum penalty the Court appreciates that the range is an extensive one and that there can be some very serious breaches of the EP&A Act which have quite dire consequences for the environment and otherwise. This, of course, is nowhere near an offence that gets into the more serious range. It is not in the lowest range but I accept it is in the lower range. Mr Pickles has been instructed to express contrition on behalf of the defendant. I accept that. He also submits that the defendant is unlikely to re-offend. He would be a foolish person indeed if, after receiving three infringement notices and now being before this Court and faced with the prospect of a very severe penalty, he did re-offend. He can expect the full force of the law if he does. 15 The fact that he is not a builder per se also diminishes the expectation that there is likely to be a personal breach of the law by him in future. Furthermore, the works that have caused all this trouble for him and for the council and for everybody else involved have now been completed. 16 There nevertheless remains an obligation by the Court to consider the aspect of general deterrence. It must be made clear to the public at large that persons are not to engage in building or other works subject to the control of the EP&A Act without first complying strictly in all respects with the provisions of that Act, many of which are public knowledge in the most general sense. It could hardly be said that a member of the public would not understand that a development consent is required. Furthermore, it is unlikely that they would also not understand that something further was required either in the way of a construction certificate or a building approval, as it used to be known. 17 It is not an obscure aspect of the law that we are dealing with here and it needs to be made clear that the Court is not going to deal lightly with an offence of this character. 18 It is accepted by the defendant that he will pay the council's costs. There remains a dispute in that respect. Mr Pickles made a submission from the bar table that these costs could be substantial. That is a matter that is yet to be determined. It is not something that the Court can quantify at this stage in order to take it into account in that sense. However, the fact is that the defendant has agreed to pay the costs. 19 The defendant is also entitled to the benefit of the early plea of guilty. There is a practical value as a consequence of the defendant complying with the Court's directions for the preparation of a statement of agreed facts. That document has resulted in there being no further evidence required. As a result, the hearing has been completed in short order today without the expense of witnesses and prolonged appearance by legal representatives. That is a matter that needs to be taken into account on a utilitarian basis. 20 Normally an offence of this nature would attract a penalty between $25,000 and $40,000 with the variation being more to do with the extent of the work that is carried out than any of the many other identifiable variables. I am prepared to assess the penalty that the offence in itself would attract without any mitigating factors as being in the order of $25,000. Having regard to the contrition of the defendant, the early plea of guilty and the utilitarian aspect of his co-operation in bringing the matter to trial in an efficient way, I am prepared to reduce the penalty to $16,000. 21 Mr Symon, stand up please. The formal orders of the Court are as follows:- (1) The defendant is convicted of the charge in the summons. (2) The defendant pay a monetary penalty by way of a fine in the sum of $16,000. (3) The defendant pay the council's costs as agreed or assessed in accordance with the Land and Environment Court Act 1979 and the Regulations of the Court. (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.