> Land and Environment Court of New South Wales CITATION : Warringah Council v McNamee [2003] NSWLEC 28 PROSECUTOR: Warringah Council PARTIES : DEFENDANT: McNamee FILE NUMBER(S) : 50020 of 2002 CORAM: Bignold J KEY ISSUES: Environmental Offences :- Plea of Guilty-mitigating factors-Defendant's means to pay fine LEGISLATION CITED: Environmental Planning and Assessment Act 1979, s 125 Fines Act 1996, s 6 CASES CITED: DATES OF HEARING: 11/11/02 EX TEMPORE JUDGMENT DATE : 11/11/2002 PROSECUTOR Mr A Hudson, Solicitor SOLICITORS Wilshire Webb LEGAL REPRESENTATIVES: DEFENDANT: Mr I Hemmings, Barrister SOLICITORS Taylor Kelso JUDGMENT: IN THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Matter No . . 50020 of 2002 Coram : Bignold J 11 November 2002 WARRINGAH COUNCIL Prosecutor v ALAN MCNAMEE Defendant JUDGMENT 1. The Defendant has pleaded guilty to a charge of an offence against the Environmental Planning and Assessment Act 1979, s 125 in that on or about 9 March 2001 on land situate at Terrey Hills being an area to which the Warringah Local Environmental Plan applies, in breach of s 76A(1) and (3) of that Act, he carried out local development without the development consent required under the Act and the aforesaid Local Environmental Plan. 2. In the particulars annexed to the summons charging the offence the nature of the unlawfully carried out development is described as: Land filling by depositing and spreading grey sandy soil and earth over an area of land measuring approximately twenty metres x forty metres to raise the ground levels of the area by a height of ranging between 1.2 and 4.5 metres. 3. The Defendant owns and occupies as his family home the property upon which the fill material was deposited being a rural residential lot located in the non-urban area of Terrey Hills. The property is known as number 74 Cooyong Road which houses the Defendant's residence where he lives with his wife and three children. 4. The property has an area of some 1.8 hectares in common with the larger sizes of most non-urban lots situate in that part of Terrey Hills. The circumstances of the case are contained in the Statement Of Agreed Facts (Exhibit 1), which indicate that the offence occurred on 9 March 2001, or on or about that time, and on that date Council inspectors arrived at the property and observed the land filling activity in progress to the extent that the fill material had been deposited and an earthworks item of machinery was spreading it. 5. As a result of that conversation (when the Defendant was informed that the works that were being carried out required development consent under the Local Environmental Plan) the work ceased immediately and thereafter the Defendant sought to obtain, after the event, the requisite approval for those works that had been undertaken. It was his belief at the time that consent for the land fill operation was not required for his property, but this was a mistaken view of the operation of the Local Environmental Plan which the Defendant readily now concedes. I should add that the fill material was deposited on the land by a contractor with whom the Defendant had obviously entered into a contract, and it should be noted at this stage that the contractor itself was charged with a similar offence in relation to this particular activity, but on the date fixed for the trial, the Council offered no evidence, with the consequence that that summons was dismissed and by consent there was no order as to costs in those proceedings. It is an agreed fact (although not recorded in the Statement of Agreed Facts) that as part of the background to the outcome of that prosecution of the earth excavating contractor, it was agreed that the contractor would remove some of the fill deposited upon the Defendant's property and that as part of the agreement between the Council and the earth moving contractor, the Defendant in the present proceedings, is bound to make a contribution of $6,500 towards the costs of the required removal of that fill. 6. As I have indicated within a matter of a day after the Defendant became aware that the land filling activity that had been arrested and terminated in the circumstances I have outlined, required development consent, he sought the requisite approval of the Council both to retain the fill material and to remediate the site. 7. The development application in that respect was lodged with the Council in June of 2001 and it was ultimately refused by the Council in February 2002, soon thereafter the present summons was filed in the Court, pressing the charge against the Defendant. 8. In terms of that outcome of the ex post facto development application process, it is now to be noted that the Council has now accepted the scheme for rehabilitation of the site which is detailed in the documents forming part of Exhibit A which includes a detailed landscape plan, requiring apparently the expenditure of a sum of some $30,000 to comply with the details of both the finished product and the necessity to take protective action in relation to sedimentation control and the like. 9. The outcome of the acceptable scheme is that the Defendant does gain a flat useable lawn area in the vicinity of his house being part of this area of 20 x 40 metres upon which the fill had been placed, or most of the fill had been placed, on the subject property and that final outcome is detailed in the landscape plan. 10. I mention this matter because the offence is an offence of carrying out development without obtaining the requisite development approval, prior to carrying out the work, and it is obviously a material fact that although the development application put in place by the Defendant soon after the commission of the offence, that was ultimately refused by the Council in February 2002, has very recently ultimately been approved by the Council in an amended form which incorporates additional sedimentation control works to protect the nearby creek which passes by the subject property. 11. The extent of the environmental harm caused by the commission of the offence is discussed in par 22 of the affidavit sworn by the Council's tree management officer Gregory Paul Narker sworn on 4 March 2002. In that paragraph he notes that the fate of a number of trees which were obviously affected by the deposition of the fill material in close proximity to where they stood and that he notes that one large Sydney Red Gum tree had died and three other trees, another Red Blood Wood, a Peppermint tree and a Silver Top Ash were showing signs of decline indicating, in his opinion that the trees were stressed, no doubt as a result of the deposition of the fill material and he expresses an opinion of their continuing decline in health if the fill material remains where it is in Area 2. That opinion, of course, was given in his affidavit sworn on 4 March and it has not been brought up to date in the sense of the state of affairs revealed today in the light of the recent approval of the Council of the site remediation and landscape proposal of the Defendant set out in the documents being Exhibit A. 12. It is also to be noted that the analysis of the material deposited on the Defendant's property has been undertaken by Douglas Partners, Geotechnical and Environmental Groundwater Engineering experts. As noted in their report dated 19 April 2002, the imported fill materials were of similar nature and type to the naturally occurring soils constituting the Defendant's land. 13. The principal emphasis in the proceedings has been the significant financial plight of the Defendant. This is detailed in his affidavit sworn in the proceedings on 18 July 2002 and is also dealt with in further documentary material emanating from the Australian Taxation Office. 14. The financial position of the Defendant as he seeks to maintain his property which is heavily mortgaged (but nonetheless is obviously a valuable property with a recent valuation in the order of $2,000,000) but also a line of credit is secured over the property in respect of the Defendant's panel beating business, which in his affidavit is shown to be barely making ends meet. That business has been conducted for the past 13 years and in it the Defendant employ 15 employees. The business returns have not been good and it is a struggle, a day-to-day struggle to keep the business afloat. Added pressure has been recently introduced by virtue of a Penalty Notice issued by the Australian Taxation Office in respect of a debt to that Australian Taxation Office of some $110,000 owed by the Company and which the Defendant was by a previous agreement paying off at the rate of $5000 per month, but apparently has fallen into default in the recent payment and that has precipitated the Commissioner issuing a notice for the full payment of the whole amount. 15. The costs incurred by the Defendant in his attempt to remediate the land have been quite considerable and total some $49,000 (that includes the $30,000 estimate to carry out the approved landscaping site remediation works detailed in Exhibit A). In addition, the Council's costs in conducting this prosecution have been estimated at $10,500 and in a case like this, it is customary for the Court to order the costs of the prosecutor on a successful prosecution. 16. In favour of the Defendant, in terms of mitigating factors, it is to be also noted that the Defendant has previously not been charged with any offence and has expressed deep contrition for the incident. He was genuinely mistaken apparently in his view that he did not require approval to, as it were, improve his property by the provision of a flat area for lawn adjacent to his house. He entered a plea of guilty at the first available opportunity, and has entirely co-operated with the Council's investigation of the circumstances giving rise to the offence, and sought, ex post facto, to retrieve the situation by lodging a development application via the agency of professional advisers in his attempt to obtain consent for what had happened and ultimately (though that initial development application was refused as I noted earlier) has obtained the Council's approval to the site remediation and landscaping works as detailed in the documents being Exhibit A in these proceedings. 17. The capacity of a Defendant to pay a fine is now declared by the Fines Act 1996, s 6 to be a material factor for the Court to take into consideration when imposing a fine, and I am satisfied on the unchallenged evidence of the Defendant that he is in a fairly powerless financial plight at the moment, despite the fact that the property upon which he resides is a valuable property and though he retains a reasonable degree of equity in it, to keep the family property going and to maintain his business which is apparently not very productive and involves this sizeable debt to the Australian Taxation Office, obviously present enormous problems for the Defendant who I accept is genuinely contrite and has acted in a most responsible manner immediately upon the disclosure by the Council that what he was doing was being done in contravention of the Council's Local Environmental Plan. 18. In all of the circumstances, I am of the opinion that it is appropriate in the present case to proceed to conviction. I have given thought to the question of exercising the discretion under the Crimes Sentencing Procedure Act, s 10 in favour of the Defendant, though a formal submission was not ultimately pressed in that behalf. However the offence is a serious offence, the maximum penalty provided by the Environmental Planning and Assessment Act for such an offence is $1.1 million, but of course the offences to which that maximum penalty relates obviously cover a very wide spectrum of offences from the not too serious to the obviously serious. 19. However, though accepting the genuine mistake of the Defendant, his contrition, his preparedness to retrieve the situation by whatever means ex post facto could be adopted, nonetheless to pass the offence over, given its seriousness and given as the Prosecuting Counsel has said the difficulty that the Council has in enforcing the full extent of its planning controls particularly in the non-urban areas, would give the wrong message to the community if the Court were to decline to register a conviction. 20. For those reasons, I have reached the decision that it is appropriate to record a conviction and to impose only a modest penalty for the conviction. Prosecuting Counsel has been very fair in the way in which the case has been presented—fair to the Defendant that is—and it is not in any dispute that the objective circumstances pertaining to this offence and the subjective criminal culpability of the Defendant justify a conclusion that the offence should be regarded at the low end of the spectrum of gravity for offences provided by s 125 of the Environmental Planning and Assessment Act. 21. Defence Counsel in his helpful address has pointed out that the costs incurred by the Defendant in seeking to obtain ex post facto development consent and to remediate the site ultimately in accordance with an agreement entered into with the Council concerning the content of site remediation and landscaping totalling $49,000 together with the liability to pay the Council's reasonable costs in the prosecution upwards of $10,500 should be taken into account in the assessment of the appropriate fine. 22. In my view, these submissions should be accepted, and that the consequence should be that the fine to be imposed in the particular circumstances of this case can be expressed as a very modest sum in the light of those factors, together with all of the other mitigating factors that I have earlier enumerated. 23. In the circumstances, I propose to impose a fine of $2000. In the circumstances, and for all of the foregoing reasons, I make the following orders: 1. The Defendant is convicted of the offence as charged. 2. A penalty of $2,000 is imposed in respect of the conviction. 3. The Defendant is ordered to pay the Prosecutor's costs in accordance with s 52 of the Land and Environment Court Act 1979. 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. 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