> Land and Environment Court of New South Wales CITATION : City of Sydney Council v Schwartz [2003] NSWLEC 201 PROSECUTOR: City of Sydney PARTIES : DEFENDANT: Jerry Leslie Schwartz FILE NUMBER(S) : 50018 of 2003 CORAM: Lloyd J KEY ISSUES: Prosecution :- plea of guilty - penalty - development without prior consent - strict liability offence- previous convictions - defendant's good character LEGISLATION CITED: Environmental Planning and Assessment Act 1979 s 76A(1) Central Sydney Local Environmental Plan 1996 cl 21(2) CASES CITED: R v Thompson (2000) 49 NSWLR 383 DATES OF HEARING: 28/07/2003 EX TEMPORE JUDGMENT DATE : 07/28/2003 PROSECUTOR: Mr T G Howard (barrister) SOLICITORS: Mr M Kelly City Prosecutor City of Sydney Council LEGAL REPRESENTATIVES: DEFENDANT: Mr D G Galpin (barrister) SOLICITORS: Leitch Hasson Dent JUDGMENT: - 6 - IN THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES 50018 of 2003 Lloyd J 28 july 2003 CITY OF SYDNEY COUNCIL Prosecutor v SCHWARTZ Defendant EXTEMPORE JUDGMENT HIS HONOUR: 1 The defendant has pleaded guilty to a charge that between 11 March 2002 and 21 November 2002 at 40-44 Wentworth Avenue, Sydney, he committed an offence against s 125(1) of the Environmental Planning and Assessment Act 1979 in that he did a thing that was forbidden under the Act to be done, in that he carried out development on land with respect to which an environmental planning instrument provided that the development must not be carried out except with development consent, without development consent being obtained or in force, contrary to s 76A(1) of that Act. 2 A plea of guilty is an admission of all the elements of the offence. 3 The relevant facts are largely agreed and contained in a statement of agreed facts which has been supplemented this morning with some additional affidavit evidence and oral evidence. 4 The relevant facts may be briefly described. The defendant is the owner and licensee of the Macquarie Hotel at Nos. 40-44 Wentworth Avenue, Sydney which trades under the business name of Macquarie Hotel. The premises consist of two buildings being the original hotel at Nos. 42-44 Wentworth Avenue and a second building at No. 40 Wentworth Avenue purchased by the defendant in late 1999, subsequent to his purchase of the original hotel. Following his purchase of No. 40 Wentworth Avenue, the titles of the two properties were then consolidated. 5 The property is within the City of Sydney and the following environmental planning instruments apply, namely Central Sydney Local Environmental Plan 1996 and Central Sydney Heritage Local Environmental Plan 2000. 6 The premises are located in the city edge zone pursuant to the Central Sydney Local Environmental Plan 1996. Clause 21(2) of that instrument requires that development consent be obtained for development that is not exempt development within the city edge zone. 7 On 14 August 2000 Justice Cowdroy made two orders in relation to the premises, as follows: 1. The respondent by himself, his servants and agents be restrained from carrying out, or causing to be carried out any work at the premises 42-44 Wentworth Avenue, Sydney and 40 Wentworth Avenue, Sydney until further or other order. 2. That the respondent by himself, his servants and agents be restrained from using, suffering, or permitting to be used the third level of the premises at 42-44 Wentworth Avenue, Sydney for the purposes of hotel accommodation until further or other order. 8 On 18 January 2001, the second order made by Justice Cowdroy was vacated. On 18 June 2003 the first order made by Justice Cowdroy was vacated. On both occasions the vacating of those orders was done with the consent of the council. 9 Between March and November 2002, works were undertaken on level two of the building at No. 40 Wentworth Avenue. The works were undertaken at the rear of the building facing onto Wemyss Lane. The works consisted of demolition of part of the roof of No. 40 Wentworth Avenue, the construction of a brick and glass external wall above the level of the existing roof, and the partial construction of a new roof structure thereby creating a new room under the new roof level. 10 The works did not amount to exempt development and development consent was required therefor. No development consent had been granted for those works. 11 On 5 August 2002 the defendant furnished a written undertaking to the council that no further unauthorised work would be undertaken at No. 40 Wentworth Avenue Sydney. 12 On 23 August 2002 the defendant's architects made a development application in which consent was sought to complete the construction of the room at the roof level of No. 40 Wentworth Avenue and to construct a new stair access to that room. 13 Number 40 Wentworth Avenue is not listed as a heritage item under the Central Sydney Heritage Local Environmental Plan 2000 but the adjoining original hotel building is. The development application was accompanied by a heritage impact statement prepared by Ms Anna Roach of Graeme Brooks and Associates in which attention was drawn to the following matters: (a) The additions would be constructed of unobtrusive and compatible materials; (b) The additions would continue the profile of the adjoining building at No. 38 Wentworth Avenue; (c) The additions would be scarcely visible from Goulburn Street; (d) The additions are located at the rear laneway; and (e) The additions would not dominate the Macquarie Hotel visually because of the three storey corner element of that hotel. 14 Ms Roach concluded: "[T]he works are considered to have no adverse effects because they are of a minor nature and do not impact on the significance of the Macquarie Hotel." 15 On 3 March 2003, the council granted development consent for the completion of the works that had been unlawfully commenced. 16 It is, I think, in the light of the grant of that consent that the application was then made to vacate the first order made by Justice Cowdroy. 17 In considering the question of penalty there are a number of things that must be taken into account. The first is that the offence is a strict liability offence. There is thus an onus on those who carry out development to ensure that any necessary development consent has been obtained. There is in my opinion, therefore, a need for a penalty to be imposed which reflects the strict liability nature of such an offence. 18 The works were also undertaken in spite of the order made by Justice Cowdroy prohibiting the respondent from carrying out any works at No. 40 Wentworth Avenue until further or other order. 19 It is suggested that there was some risk to the public in carrying out the works because measures were taken to protect those members of the public who may have been using the lane. According to Mr A Ratima, the builder who gave evidence this morning, two measures were taken in order to protect the public. Firstly, they had someone in the laneway below to keep members of the public away and secondly, at some later stage the lane was physically blocked off with barriers to prevent access during the building works. 20 The defendant has not given evidence, but I have been furnished with some evidence of his good character. I accept that evidence; in particular evidence that he has been involved in community activities which involve the raising of money for charity, and activities of a similar nature such as an interest in designing and hosting websites for Gamblers Anonymous and problem gamblers. I need not recite all the charitable organisations in which the defendant has actively participated but I take into account in his favour his activities in that respect. 21 The defendant does, however, have previous convictions. On 18 May 2001 he was convicted of three charges of contempt of the second order made by Justice Cowdroy on 14 August 2000. Those charges for contempt related to the use of the third level of the premises Nos. 42-44 Wentworth Avenue for hotel accommodation contrary to that order. Those incidents were said to have occurred on 24 August 2000, 31 August 2000 and 10 November 2000. The defendant was fined respectively $20,000; $35,000; and $45,000 for each offence. 22 Also on 18 May 2001, the defendant was convicted of two charges of obstructing and hindering the authorised entry of an authorised person contrary to s 118N of the Environmental Planning and Assessment Act, in respect of which he was fined $1,850 for each offence. Those offences related to, again, the use of the third floor of Nos. 42-44 Wentworth Avenue Sydney, contrary to the orders made by Justice Cowdroy on 14 August 2000. 23 These convictions suggest that the defendant was well aware of the provisions of the Environmental Planning and Assessment Act which prohibit the carrying out of development without consent. 24 As I have said, there is a need in this case for a penalty. In imposing the penalty I take into account the fact that the defendant has made an early plea of guilty. In R v Thompson (2000) 49 NSWLR 383 at 418, the Court of Criminal Appeal held that generally the utilitarian value of a plea of guilty should be assessed in the range of 10 to 25 per cent discount on sentence. The utilitarian value of a plea may not in the present case attract the full discount because it would seem that the guilty plea may well be characterised as a recognition of the inevitable, given the strength of the case against the defendant. I am prepared, however, to discount the penalty that would otherwise apply, by 20 per cent. 25 The offence must be regarded as reasonably serious. It involved the carrying out of work without consent. It involved work adjacent to a laneway which appears to have involved a question of safety, which was recognised by the builder insofar as he took some measures on his own initiative, it would seem, to ensure that some safety measures were undertaken. 26 In all the circumstances I am of the opinion that an appropriate penalty is $50,000 which, as I have said, is reduced by 20 per cent to $40,000. 27 The formal orders of the Court are therefore: 1. The defendant is convicted of the offence as charged. 2. The defendant must pay a penalty in the sum of $40,000. 3. The defendant must pay the prosecutor's costs in the agreed sum of $12,000. 4. The exhibits other than exhibit A may be returned. I hereby certify that the preceding 27 paragraphs are a true copy of the reasons for judgment herein of the Honourable Mr Justice Lloyd. Associate Dated: 27 July 2003 ********** 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.