The Council of the Municipality of Kiama v Gerringong Developments Pty Limited [2007] NSWLEC 257

Land and Environment Court of New South Wales

CITATION : The Council of the Municipality of Kiama v Gerringong Developments Pty Limited [2007] NSWLEC 257

PROSECUTOR: The Council of the Municipality of Kiama PARTIES : DEFENDANT: Gerringong Developments Pty Limited

FILE NUMBER(S) : 50040 of 2006

CORAM: Lloyd J

KEY ISSUES: Prosecution :- carrying out of development without development consent - refurbishment of motel - allowing works to continue notwithstanding stop work order - plea of guilty - mitigating factors - penalty

Crimes (Sentencing Procedure) Act 1999 s 21A(3) LEGISLATION CITED: Environmental Planning and Assessment Act 1979 s 76A(1)(a), s 125(1) Kiama Local Environmental Plan 1996 cl 9, cl 63, Sch 4

DATES OF HEARING: 27 April 2007

EX TEMPORE JUDGMENT DATE : 27 April 2007

PROSECUTOR: J Johnson (barrister) SOLICITORS: LEGAL REPRESENTATIVES: Kearns & Garside with RMB Lawyers

DEFENDANT: G B Newport (barrister)

JUDGMENT: - 7 - IN THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

Lloyd J

Friday, 27 April 2007

LEC No. 50040 of 2006

THE COUNCIL OF THE MUNICIPALITY OF KIAMA v GERRINGONG DEVELOPMENTS PTY LIMITED

EX TEMPORE JUDGMENT 1 HIS HONOUR: The defendant, Gerringong Developments Pty Limited, ACN 109 909 499, pleads guilty to an offence that on 27 July 2005 and continuing to on or about 14 September 2005 it committed an offence against s 125(1) of the Environmental Planning and Assessment Act 1979 ("the EP&A Act"). 2 The particular offence here is that the defendant carried out development on land at Gerringong in the State of New South Wales, being development which required development consent under the provisions of an environmental planning instrument which applied to the land, where development consent had not been obtained and was not in force contrary to s 76A(1)(a) of the EP&A Act. 3 The relevant facts may be briefly described and have been conveniently summarised in a statement of agreed facts filed by the parties. According to that statement the defendant is the owner of a property known as No. 1 Fern Street, Gerringong which it purchased in 2004. The land is subject to the Kiama Local Environmental Plan 1996 ("the LEP") under which it is zoned Residential 2(a). 4 On 7 January 2005 the LEP was amended by way of an amendment to Sch 4 which allowed, as an additional permitted use of the land, development of the existing building, which was previously used as a motel and restaurant, for the purpose of serviced apartments that do not include residential accommodation for permanent residents. The re-building of, making of alterations to and/or enlargement or extension of the existing buildings on the land is development that is permissible only with development consent - see cll 9 and 63 and Sch 4 of the LEP. 5 On 31 May 2005 PRD Architects, acting on behalf of the defendant, lodged a development application to carry out works at the property, those works including the internal and external refurbishment of the former motel building. It also included the reconfiguration of the existing accommodation to increase the numbers of units from fifty-two to fifty-five, the installation of kitchen facilities and refurbishment of interior of the units, the addition of three new terraces and ten new courtyards, modification of a conference room and café facilities, construction of a new lap pool, reconfiguration of car parking spaces, landscaping and other works of a like nature. 6 On 27 July and again on 28 July 2005 Mr Gregory John Moore, an officer of the prosecutor observed works in progress and tradesmen on the land. The works included not only refurbishment of the existing building but some structural work including the cutting of door openings, the insertion of structural beams, the removal of window openings and other work which clearly was refurbishment work such as replacement of bathroom fixtures and the like. 7 It is an admitted fact that these works were carried out for and on behalf of the defendant by servants, agents and/or contractors of the defendant and at the direction of the defendant. 8 On the morning of 28 July 2005 Mr Moore met Mr Greg Dickinson, a director of the defendant company, and asked him to stop work. On the same day Mr Moore telephoned Mr Luke Dickinson, who may or may not have been a director at the time, and asked him to stop work. On 28 July 2005 Mr Moore sent a formal stop work order to the defendant. 9 On 24 August 2005 Mr Moore again went to the land. He observed that work had progressed since his previous inspection on 28 July 2005. Those works included structural work and other work which apparently was the subject of the development application. Again, it is admitted that these works were carried out for and on behalf of the defendant by servants, agents and/or contractors of the defendant at the direction of the defendant. None of these works were the subject of any prior development consent, building approval or construction certificate at the time that the works took place. On 14 September 2005, however, the prosecutor issued a notice of determination of the development application by granting its consent. 10 The works observed by Mr Moore on 27 and 28 July 2005 and on 24 August 2005 were works for which consent had been sought under the development application. 11 The defendant has adduced evidence from Mr Barry Dickinson, a director of the defendant, and a person who is said to be the "alter-ego" of the defendant. In his affidavit he says that he is a registered builder having been continuously engaged in the building industry for forty-three years. During that period he has neither been charged nor convicted of any offence involving the carrying out of unauthorised work or works without consent. Furthermore, he says no allegations have previously been made against any of his companies or himself in relation to unauthorised works or works without consent. 12 Mr B Dickinson says that on or about 29 October 2004 the defendant acquired the motel on behalf of a number of interests comprising Gerringong Unit Trust. He says that on or about May 2005 he caused the preparation of a development application to refurbish the motel. He says that he had a telephone conversation with Mr Ron Moore, a private certifier, in about early July 2005 and at about the same time formed the opinion that a significant part of the works, being the refurbishment works not involving structural works, could be carried out without consent and he says those works commenced in mid-July 2005. 13 Mr B Dickinson say that on 28 July 2005 he was informed of a visit to the site by the prosecutor's officers and on that date was informed that the exempt development provisions did not apply. He says that he now knows and did know on 28 July that all of the works that he commenced were unauthorised. However, having commenced those works and engaged many subcontractors and tradesmen and with pressure to complete, he allowed the works to continue notwithstanding directions to cease. He says that he was under considerable pressure to complete the works so that they might be available for the Christmas peak period. 14 Mr B Dickinson has expressed in his affidavit his contrition for this totally unacceptable conduct and assures the court that not only is it out of character but it will not happen again. He notes that on 14 September 2005 the prosecutor granted development consent and on 26 September 2005 a construction certificate was issued. 15 Mr B Dickinson has also given evidence about his own personal situation. On 12 June 2006 he was awarded the Order of Australia Medal for his contribution to community service. He has also received a number of other awards and recognitions for community service. He was awarded a Paul Harris Fellowship by the Rotary Foundation of Rotary International in appreciation of tangible and significant assistance given for the furtherance of better understanding and friendly relations among peoples of the world. He has been actively engaged in the local community, becoming Deputy Chairman of Lifeline Macarthur and a patron of Friends of Lifeline. He has pledged a specific amount of money each year for several years to that organisation. He is Deputy Chairman of Kids of Macarthur Health Foundation and as one of the founding members helps raise money for that organisation. He built a charity house in which Kids for Macarthur was a beneficiary. He is President and Vice-President of the Camden Rams Rugby League Football Club. He built a charity house of which the football club was a beneficiary. He is patron of the Camden Tigers Soccer Club. He constructed a new Lifeline building located in the Smeaton Grange/Narellan area and gave the entire profit from construction of that project to Lifeline. He participates in the Macarthur Workplace Training Program, a program giving high school students work experience through TAFE. He also sponsors a number of other community and sporting organisations in the Camden area. 16 In his affidavit Mr Dickinson says that he apologises to the prosecutor, the Court and the community for his conduct causing works to be carried out without consent and in breaching the law. He asks that his good service to the community over forty-three years be taken into account when determining the appropriate penalty. 17 I turn now to the question of penalty. The primary consideration in any penalty is the objective gravity or seriousness of the offence. The objective gravity or seriousness of the offence is reflected in the maximum penalty prescribed by the legislature, in this case $1.1 million. That penalty of course covers a great range of offences that can occur under the EP&A Act but it does, as I have said, indicate the seriousness with which the legislature regards offences against that Act. 18 The facts disclose a number of aggravating circumstances in this case. The aggravating circumstances in particular here are that after 28 July 2005, having been told that the work was unlawful, the defendant recklessly and deliberately continued to do the work, as he freely admits, because of the pressure to complete the work before the Christmas peak period and also having engaged many subcontractors and tradesmen he allowed the work to continue notwithstanding the direction to cease. 19 An aggravating factor is that the defendant has been in the building industry for many years and he would be well aware of the need to obtain development consent for carrying out activities of this nature. 20 The other aggravating factor is that the need for obtaining development consent and to observe the law would be set at nought if persons in the position of the defendant were allowed to carry out development without consent. 21 I note as a neutral factor the fact that there is no ongoing environmental harm in this case. As I have noted, the council subsequently granted consent to the works and has not required, apparently, any alteration or amendment to what has been done. 22 There are also a number of mitigating factors here. As required by s 21A(3) of the Crimes (Sentencing Procedure) Act 1999, these must be taken into consideration. The major mitigating factors are the defendant's absence of any record of previous convictions, his hitherto good character to which I have referred, the fact that the "alter-ego" of the defendant has shown remorse for the offence, the fact that there is a plea of guilty entered which entitles the defendant to an automatic discount for the utilitarian value of that plea, the fact that there has been assistance to the law enforcement authorities to the extent of agreeing to a statement of agreed facts. These are all factors which I take into account in the present case. 23 In my view having regard to the overall seriousness of the offence and the mitigating factors to which I have referred it is appropriate that a penalty in the order of $30,000 be imposed but that sum will be reduced by 33 per cent to take into account all mitigating factors. I note that the defendant has agreed to pay the prosecutor's costs in the sum of $16,000. 24 Accordingly, the formal orders of the Court are: (1) The defendant is convicted of the offence as charged. (2) The defendant must pay a penalty in the sum of $20,000. (3) The defendant must pay the prosecutor's costs in the agreed sum of $16,000. I hereby certify that the preceding 24 paragraphs are a true copy of the reasons for judgment herein of the Honourable Mr Justice D H Lloyd.