Land and Environment Court of New South Wales CITATION : Pittwater Council v Walters [2004] NSWLEC 75 PROSECUTOR Pittwater Council PARTIES : DEFENDANT Robert Walters FILE NUMBER(S) : 50046 of 2003 CORAM: Talbot J KEY ISSUES: Prosecution :- development without consent - plea of guilty - penalty LEGISLATION CITED: Environmental Planning and Assessment Act 1979 CASES CITED: DATES OF HEARING: 03/02/2004 EX TEMPORE 02/03/2004 JUDGMENT DATE : PROSECUTOR Mr I J Hemmings (Barrister) SOLICITORS Mallesons Stephen Jaques LEGAL REPRESENTATIVES: DEFENDANT Mr P J McEwen SC with Ms A Pearman (Barrister) SOLICITORS Clinch Neville Long JUDGMENT: IN THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES 50046 of 2003 Talbot J 3 February 2004 Pittwater Council Prosecutor v Robert Walters Defendant Judgment Introduction 1 HIS HONOUR: The defendant appears before the Court to answer the charge that between 4 June 2002 and 2 October 2002 at 1109 Barrenjoey Road, Palm Beach ("the premises") he carried out development without first having obtained development consent from Pittwater Council ("the council") in circumstances where such development could not be carried out without development consent first having been obtained. 2 There is a significant volume of documentary evidence before the Court and the Court also has the benefit of an agreed statement of facts. Both parties are represented by counsel who have brought the considerations into focus. 3 In general terms, the circumstances can be described as the defendant being instrumental and, indeed, taking full responsibility for substantial renovation works to the premises following the purchase for the purposes of continuing to carry out a retail business consisting of liquor sales and some grocery items. 4 To put the nature of the business in context the total cost was under $2,000,000, including the real estate. The business is now conducted by the defendant and his partner with the assistance of two employees. Those matters are relevant in an introductory context to keep the dimensions of the events which occurred in proper perspective. 5 According to the evidence and the submissions made by both parties, the works resulted in a re-structuring of the roof elements of the building and re-configuration of the interior as a consequence of the works required to the roof but, as I understand it, in some respects beyond that as well. However, the works that are the subject of the proceedings were undertaken in such a way that they are contained, or the result is contained, within the pre-existing envelope of the building and the footprint of the building essentially remains the same. 6 The evidence confirms that the building was apparently in a run-down state and that there were some concerns, particularly in regard to the presence of asbestos. 7 The council's case, following the entry by the defendant of a plea of guilty, has concentrated on the fact that the defendant showed a marked reluctance to allow council officers to investigate what was taking place and to seek to have the defendant's co-operation by the lodgement of a development consent, which the council continues to assert was required 8 The fact that the defendant has pleaded guilty means that the essential elements of the charge, namely that the work was development and that the development was carried out without consent, is admitted. There is clearly now no doubt in the mind of the defendant and his advisers that that is the correct position. 9 The elements of contention are summarised by saying that the council points to six occasions which it says show that its officers were denied access to the property and thereby prevented from carrying out their statutory duties. 10 On the other hand, Mr McEwen, who appears for the defendant, points out that there were nevertheless at least six occasions when inspections did take place and that, according to the way in which the defendant seeks to put it, the dates of the actual inspections can be related approximately to the times when there were physical denials of access. 11 I do not propose to make a specific finding in that respect except to say that there is evidence that the defendant was from time to time in varying degrees unco-operative and even obstinate in his refusal to co-operate with the council officers by allowing them to inspect the property as was their statutory power. 12 To demonstrate that there was an element of confrontation beyond the usual attitude that might be expected from a property owner when confronted by statutory officials wanting to check up on what is going on in a property, the council even at one stage went so far as to apply to the local magistrate for a search warrant. As it turned out the execution of the warrant was not necessary, nor did the council find it necessary ultimately to rely on any statutory notice demanding access. Rather, in a disorganised way access was gained from time to time. 13 Nevertheless, the Court is entitled to infer from the whole of the circumstances supported by evidence of conversations between council officers and the defendant, that the defendant's obstructive course of action was dictated by a financial expediency to have the work completed in a manner and according to the program that he saw as being necessary. He was given some rather obtuse advice from experts, his engineer and his architect that development consent was probably not required. I am not altogether convinced that the advice he had was that categorical but nevertheless his assertions during the course of correspondence and in evidence, which is before me and that he gave in class 4 proceedings, point to a belief that development consent was not required. 14 As it transpires, of course, the facts and circumstances presented to the Court clearly show development consent was required. That element of the charge is not disputed. 15 There is a dilemma in determining the extent to which the defendant should be penalised. As I said at the outset, this is not a case of a major corporation carrying out a huge development contrary to the terms of its development consent for commercial gain or even without consent at all for commercial gain. It may well be that Mr Walters misjudged the circumstances driven by his own financial imperatives. He made erroneous decisions which now place him in the situation where he has to face the consequences of those erroneous decisions. In an affidavit sworn on 28 May 2003 by a council officer, Darren Raynes Greenow, there is some evidence of recognition by Mr Walters that his behaviour was wrongful and ill judged. 16 Nevertheless, the Parliament has expressed a very strong statement in the legislation to the effect that a breach of the Environmental Planning and Assessment Act 1979 ("the EP&A Act") is to be regarded as a serious matter. Otherwise, why would the Parliament provide for a maximum penalty under the current regime of $1.1 million. This type of offence, namely a breach of the EP&A Act, often occurs in circumstances where there are economic concerns driving the offender to the breach. 17 In the present case, a properly drawn development application almost certainly would have obtained the benefit of a development consent. The defendant has now been placed in the position where he will never get a development consent and has to rely on the more unsatisfactory outcome from the issue of a building certificate of limited tenure and effect. 18 The council recognises that there is no environmental harm caused as a consequence of the offence. Nevertheless, as Hemmings submits on behalf of the prosecutor, the nature of the offence and the circumstances surrounding it demand that there should be a penalty which recognises the element of general deterrence to the public at large who must be left with no misunderstanding about the obligations to comply with the provisions of the EP&A Act. Additionally, there is the question of personal deterrence. 19 I am satisfied in relation to the latter that this whole episode is not likely to be lightly forgotten by Mr Walters. He has incurred considerable expense in having to meet class 4 proceedings commenced against him. He will incur a significant obligation in relation to the costs payable in respect of these class 5 proceedings not only to the council but also to the legal representatives who appear on his behalf. 20 I am mindful of the fact that on 9 September 2002, following the commencement of the class 4 proceedings, the council at that stage, notwithstanding the ongoing controversy and the difficulties with arranging inspections of the property, was prepared to accept undertakings by the respondent that the fire safety provisions of the BCA be satisfied before work continued, pending final determination. 21 However, having said that I take that into account, I am nevertheless sufficiently pragmatic to understand that that would have been a reflection of the primary concern of the council that in no way disposed of the proceedings. They were ultimately dismissed. 22 The range of penalty to which the defendant has exposed himself would, in my view, be in the range of $50,000 to $60,000 before taking into account the utilitarian value of his early plea of guilty and to some extent mitigation in respect of some latent co-operation in regard to the disposal of these proceedings in an efficient way. Taking into account the early plea of guilty and the fact that I accept that this particular defendant may well have learnt his lesson, thereby not demanding a significant element of the penalty to reflect personal deterrence, an appropriate penalty having regard to his ability to pay and his prior good record is the sum of $35,000. 23 In addition to that penalty the defendant will be required to pay the costs of the prosecutor. 24 Mr Walters, you have heard the reasons for my decision. I have given you the benefit of the doubt insofar as your propensity to offend in the future is concerned. You have heard how seriously the Parliament has regarded the type of offence that you have committed. You can rest assured that a re-occurrence of any further offence and re-appearance in this or any other court in answer to any future charges pursuant to the EP&A Act will attract what could be in your circumstances a crippling penalty. 25 I have erred in your favour and given you the benefit, as I say, of a number of matters which weigh in mitigation and for which you are entitled to a discount. 26 The formal orders of the Court are as follows:- (1) The defendant is guilty of the charge in the summons. (2) The defendant is convicted. (3) The defendant is ordered to pay a penalty by way of a monetary sum in the amount of $35,000. (4) The defendant is ordered to pay the costs of the prosecutor as may be agreed or assessed in accordance with s 253 of the Criminal Procedure Act 1986. (5) The exhibits may be returned. 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