Land and Environment Court of New South Wales CITATION : Zhu v Auburn Council [2009] NSWLEC 97 APPELLANT PARTIES : Ling Ling Zhu RESPONDENT Auburn Council FILE NUMBER(S) : 60018 of 2008 CORAM: Pain J KEY ISSUES: APPEAL :- appeal on severity of sentence and award of prosecutor's costs in local court - appellant committed two offences of carrying out development without consent - plea of guilty in local court - leave granted to rely on new evidence - s 10A order not appropriate given scope of work - consideration of means to pay - totality principle applied Crimes (Appeal and Review) Act 2001s 3, 31(1), 37(1), 39(2), 47(1), 49(2) LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999 s3A, 10A, 21A Environmental Planning and Assessment Act 1979 s76A, 125(1) Fines Act 1996 s 6 Axer Pty Ltd v Environment Protection Authority (1993) 113 LGERA 357 Bentley v BGP Properties Pty Ltd (2006) 145 LGERA 234 Blue Mountains City Council v Carlon [2008] NSWLEC 296 Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 CASES CITED: Franks v Woollahra Municipal Council [2007] NSWLEC 461 Gittany Constructions Pty Ltd v Sutherland Shire Council (2006) 145 LGERA 189 Johnson v R (2004) 205 ALR 346 Mosman Municipal Council v Menai Excavations Pty Ltd (2002) 122 LGERA 89 Willoughby City Council v P and V Masonry Pty Limited [2003] NSWLEC 312 DATES OF HEARING: 20 May 2009 DATE OF JUDGMENT: 30 June 2009 APPELLANT Mr Penhall (solicitor) SOLICITOR LEGAL REPRESENTATIVES: Penhall & Co Lawyers RESPONDENT Mr T Pickup (solicitor) SOLICITOR Storey & Gough JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Pain J 30 June 2009 60018 of 2008 Zhu v Auburn Council JUDGMENT 1 Her Honour: The appellant pleaded guilty on 7 November 2008 in Parramatta Local Court to two offences (local court matter numbers 219125/08/3 and 219133/08/3) under s 125(1) of the Environmental Planning and Assessment Act 1979 (the EP&A Act) that she carried out without development consent development which required consent under s 76A(1) of the EP&A Act. Development was carried out without the requisite consent at the appellant's property in Berala, a suburb in western Sydney (the property). She has appealed in these Class 6 proceedings against the severity of the penalties imposed by the local court and against the Prosecutor's costs imposed by the local court. The offences are strict liability so that mens rea is not an element of the offences. 2 An appeal to this Court from the local court is enabled by s 31(1) of the Crimes (Appeal and Review) Act 2001 (the Review Act). Under s 37(1) the appeal is a rehearing on the certified transcript of evidence before the local court. In this appeal I consider the matter afresh and it is not necessary that I find any fault in the magistrate's reasoning (see Franks v Woollahra Municipal Council [2007] NSWLEC 461 at [24]). Under s 39(2) of the Review Act the Court may determine an appeal against sentence by setting aside or varying the sentence, or dismissing the appeal. Under s 49(2) the Court can exercise any function that the local court could have exercised in the original proceedings. 3 The appellant pleaded guilty to the following two offences as specified in the Court Attendance Notices dated 23 September 2008: (a) the appellant undertook development in that she caused to be carried out construction of alterations and additions to the existing dwelling at the property without first obtaining development consent from the Council; (b) the appellant undertook development in that she caused to be carried out construction of a separate dwelling at the property without first obtaining development consent from the Council. 4 The magistrate convicted the appellant of both offences and fined her the sum of $7,000 for each offence, together with court costs of $73 for each offence and professional costs in the sum of $2,500. The limit on the imposition of a penalty in the local court is $110,000. 5 In evidence in these proceedings was the transcript of the local court proceedings before the magistrate on 7 November 2008. During the local court proceedings submissions were made by both the appellant and the Council. The Council tendered a bundle of documents and described the offences as relating to extensions at the rear of the existing dwelling and to the construction of a second dwelling in the yard. The Council's solicitor stated that the Council had given the appellant a notice to stop work and the Council had then proceeded to prosecute. The solicitor stated that a development application had not yet been lodged by the appellant and that there was a demolition order for the work. The solicitor described the extensions by reference to a photograph in the bundle of documents tendered as fairly extensive. The magistrate noted that the nature, size and cost of the work were matters relevant to any penalty. The appellant's solicitor stated that he had a set of amended plans which the appellant was going to seek to have approved by the Council. Referring to the appellant's letter to the Council which was tendered by the appellant's solicitor (described below), the magistrate questioned why the appellant was unable to pay to remove weeds and other hazards in the backyard but was able to afford the extensions with the materials alone costing $60,000. The magistrate estimated the total cost of works as being a couple of hundred thousand dollars which the appellant's solicitor disputed. The appellant's solicitor made brief submissions about the appellant's difficult circumstances and desire to have her parents in China come to stay in the house. The magistrate held that a substantial development had been commenced without consent and, after briefly considering the appellant's difficult financial circumstances, imposed fines and ordered the payment of court and legal costs of the Prosecutor. 6 The following documents were in evidence before the local court: 1. Statement dated 8 September 2008 of Jason Mooney, Senior Compliance Officer with the Council attesting to his inspection of the appellant's premises (summarised below). The statement annexed the following 11 documents: (a) A s 149 planning certificate for the appellant's premises issued by Auburn Council dated 11 September 2008 (b) 10 photographs taken 11 June 2008 during the inspection of the unauthorised addition at the rear of the premises (c) 16 photographs taken 11 June 2008 during the inspection of the unauthorised separate freestanding dwelling (d) Three photographs taken 11 June 2008 during the inspection of plans for the proposed addition to the rear of the dwelling which were provided by the appellant to Mr Mooney (e) A statement dated 11 June 2008 prepared by Mr Mooney and signed by the appellant (including two sketches of plans for extensions) (f) An aerial photograph of the premises dated January 2007 showing an awning at the rear of the house (g) An aerial image of the premises dated January 2007 showing the shed/garage in the rear yard (h) A photograph taken by a Council town planner for the purposes of an earlier development application of rear yard of premises showing existing shed and lean-to roof (i) The Auburn Development Control Plans 2000 – Exempt and Complying Development (j) Extracts of the Auburn Local Environmental Plan 2000, Part 4 Residential Zones (k) Section 76A of the EP&A Act (l) Results of a Council record search on the property address showing it to be zoned 2(a) Residential (Low Density) and owned by the appellant 2. Selected pages of the Auburn Council Delegation of Authority Manual setting out the role of the Senior Building and Development Compliance Officer 3. The Prosecutor's sentencing submissions in the local court proceedings 4. A letter from the appellant to the Council dated 30 August 2008 (summarised below) 7 The statement of Mr Mooney detailed his visit to the property on 28 May 2008 after a member of the public had contacted the Council alleging unauthorised construction work was occurring at the site. Mr Mooney observed from the rear yard an addition to the rear of the dwelling and a freestanding structure in the middle of the yard, both at the frame stage of construction. On 11 June 2008 Mr Mooney conducted a formal inspection of the property with the appellant and an interpreter. Mr Mooney observed that the rear addition had an overall dimension of 8250mm x 4500mm and the layout of a dining area, bedroom, bathroom and walk-in wardrobe. Mr Mooney had a conversation with the appellant in which she stated she had owned the property for between 2½ and 3 years and had begun the building of both structures in April 2008. She told Mr Mooney that a friend who was a licensed builder was undertaking the construction and Council approval had not been obtained. 8 In relation to the freestanding structure, the appellant stated that it was previously a garage which had been pulled down and was to be used as a flat if her parents were able to come from China and stay. She described the structure as being for a children's game room, study, laundry and a kitchen. Mr Mooney estimated an overall dimension of 11000mm x 7000mm. Mr Mooney asked her if she was aware that she needed Council approval. The appellant stated that she did not know that she needed council approval for the extension or to rebuild the garage although she agreed that the separate dwelling was much larger than the original garage and was not itself a garage. After the interview Mr Mooney searched Council records and found no consent existed for either development. In an aerial image dated January 2007 Mr Mooney observed an awning attached to the rear of the dwelling where the addition had been constructed and a 5m x 6m shed/garage in the rear yard with a lean-to roof. 9 The appellant's letter to the Council dated 30 August 2008 described the property as being occupied by a house of 80 square metres with the rest of the 600 square metre site being infested with weeds, insects and mosquitoes prior to construction. She stated the existing housing is too small for the family's needs. She stated that after the breakdown of her marriage, she had become extremely depressed and had borrowed money from her parents in China in order to extend the house to give her three children more room and provide space so that her parents could come stay and assist her in caring for her children. She stated that after she was ordered to stop the construction she waited two months before recommencing in order to address safety concerns of the unfinished site and keep the existing dwelling from being exposed to the weather. She stated that she is a single mother with no income and unable to afford a lawyer and asked that she be able to reapply for development consent. New evidence 10 New evidence may be relied on if leave of the Court is given under s 37(2) of the Review Act. Leave may be given if the Court is satisfied that it is in the interests of justice to allow such evidence. The appellant's solicitor, who is acting pro bono in this appeal and also appeared on the same basis in the local court, applied on her behalf to adduce oral evidence concerning her financial circumstances. This is relevant to consider in relation to her capacity to pay any penalty imposed. No such material was before the magistrate apart from her solicitor advising that she received Centrelink benefits. I gave leave to adduce such evidence as it is in the interests of justice that this be before the Court to consider when determining what sentence should be imposed. 11 In cross examination, the appellant stated that she purchased the property at Berala after the break-up of her first marriage. After receiving proceeds of a divorce settlement she purchased a house at Regents Park. This property was used to finance the purchase of the Berala property for $370,000 and the Regents Park property was then sold in full after the purchase of the Berala property was completed. The Regents Park property was sold to We Buy Houses Direct Pty Limited for $370,000 after she was unable to sell it through an agent. She received $3000 for the sale. As a condition of the sale to We Buy Houses Direct she remains titleholder of the property until We Buy Houses Direct sells the property. Council records tendered by the Prosecutor show that the appellant is still the owner of the Regents Park property. The Prosecutor also tendered a letter dated 9 October 2007 from the appellant authorising the Council to serve all notices and correspondence in relation to the Regents Park property on We Buy Houses Direct. 12 The appellant gave further oral evidence as to her income and liabilities. She currently has a mortgage on the Berala property of $269,000. After the break-up of her marriage in February 2008, she received a single deposit of $30,000 from her second husband's family in China. She also received three deposits from her own family in China during 2008 totalling approximately $35,000. Her second husband currently pays $1000 per month for maintenance of their two children. She receives a pension from Centrelink of $1000 per fortnight. At the time the offence was committed she had an income of approximately $3000 per month of which $2000 per month was used for mortgage repayments. Currently she pays $1300 per month towards her mortgage. Depending on interest rates on housing loans she has income of between $1000 and $1700 per month to spend on food, clothing and all other expenses. 13 In cross-examination the appellant estimated that she had incurred expenses of approximately $30,000 on the construction work up until June 2008 when she was told by the Council officer, Mr Mooney, in June 2008 that the building required development consent. When she recommenced the work she spent approximately a further $20,000. She has paid for this work with the money she received from her second husband's family and her own family in China. 14 Five documents were tendered in support of her evidence of income and liabilities: 1) Contract for sale of Berala property 2) Colonial Home Loan statement dated 30 June 2006 3) Pension account inquiry dated 20 May 2009 4) An affidavit of income, assets and liabilities sworn 2 December 2008 in support of an application to have the filing fees in this Court for this appeal waived, which states she has an income of $850 per week with an equivalent amount of regular expenses 5) Records of four foreign exchange transfers issued by Global Forex for the exchange of Chines yuan into dollars paid into an electronic fund. 15 The Council's solicitor also sought leave to rely on new evidence which was granted. Part of a second affidavit of Mr Mooney sworn 12 May 2009 confirms the lodgment by the appellant of a development application for additional building work to be undertaken to link the extension to the existing house and the separate self-contained dwelling presently on the land. That development application is yet to be determined. 16 The buildings are now largely completed. The Council has issued a demolition order but this has been stayed pending the determination of the development application. Prosecutor's submissions on objective circumstances 17 The building work undertaken by persons on behalf of the appellant was substantial adding considerably to the area of the existing dwelling and providing a substantial separate dwelling in the rear yard. 18 While the appellant has stated she was not aware development consent was required she put in a development application in 2006 for a two storey dwelling which was refused. She could and should have made proper inquiries of the Council as to whether development consent was required. Ignorance of the law is no excuse. The penalties imposed by the magistrate are reasonable in the circumstances. Appellant's submissions on objective circumstances 19 The appellant's solicitor submitted that at the time of the offence the appellant was in a poor emotional and financial situation due to her second husband leaving her with three young children to care for in a rundown house which was not suitable for the children. Her husband had worked in the building business and friends of his offered to do the building work. She was not aware that development consent was required for the building work. She did allow the building work to continue after the June visit from the Council officer because she believed the state of the unfinished house was dangerous for the children. The aim of building the separate accommodation at the rear is to provide a house for her parents from China to live in and help her look after the children. The appellant will be subject to extra-curial punishment if she also has to demolish what has been built. The appellant submits that the penalties imposed by the magistrate were too severe in the circumstances of this case. 20 An order under s 10A of the Crimes (Sentencing Procedure) Act 1999 (the CSP Act) ought be made. Section 10A provides: 10A Conviction with no other penalty (1) A court that convicts an offender may dispose of the proceedings without imposing any other penalty. (2) Any such action is taken, for the purposes of the Crimes (Local Courts Appeal and Review) Act 2001 and the Criminal Appeal Act 1912, to be a sentence passed by the court on the conviction of the offender. 21 The appellant's solicitor submitted in these appeal proceedings that the appellant should not have been charged with two offences as the building work the subject of the offences is really part of one residential building work. Finding on objective seriousness 22 The purposes of sentencing are identified in s 3A of the CSP Act. When sentencing the objective and subjective circumstances of the offence must be considered to determine the seriousness of the offence (s 21A(1) CSP Act). Sentences imposed in relation to environmental offences must embrace powerful considerations of general deterrence; see Axer Pty Ltd v Environment Protection Authority (1993) 113 LGERA 357 per Badgery-Parker J at 367, Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 per Kirby P at 698 particularly in the context of offences under the EP&A Act, Gittany Constructions Pty Ltd v Sutherland Shire Council (2006) 145 LGERA 189 per Preston J at [103]. 23 In Bentley v BGP Properties Pty Ltd (2006) 145 LGERA 234 at [163] and Gittany Constructions at [110] relevant factors to determine the objective gravity of an offence were identified in the context of the EP&A Act. These include the maximum penalty, the objective harmfulness of the defendant's actions, the reasons for the commission of the offence and the state of mind of the offender. Other relevant factors can be the consideration of the statutory scheme in which the offence provision occurs and the need to uphold the integrity of the planning and development control system under the EP&A Act; see Blue Mountains City Council v Carlon [2008] NSWLEC 296 per Biscoe J at [48] citing Mosman Municipal Council v Menai Excavations Pty Ltd (2002) 122 LGERA 89 at [35]. 24 The maximum penalty for the offence under s 126(1) of the EP&A Act is $1.1 million suggesting breaches of the EP&A Act are serious. In Camilleri's Stock Feeds Pty Ltd per Kirby P at 698 and 701 respectively stated that: The task of a court is to assess the relative seriousness of the offender's particular offence in relation to a worst case for which the maximum penalty is provided… ..the more serious the lasting environmental harm involved the more serious the offence and, ordinarily, the higher the penalty. 25 There is a wide spectrum of offences likely to be committed under the EP&A Act which range from the serious to the far less serious; see Bignold J in Willoughby City Council v P and V Masonry Pty Limited [2003] NSWLEC 312 at [39]. 26 The circumstances of this offence suggest that it is not trivial. The appellant has had built without the necessary development consent a substantial structure in the back yard of her house and also a large extension at the rear of the house. She has submitted that she was unaware that development consent was needed. While I can accept that explanation up to the time of Mr Mooney's visit with an interpreter on 11 June 2008 that cannot apply thereafter. One difference in the evidence before me compared to that before the magistrate is the evidence of how much work was done after the visit by Mr Mooney on 11 June 2008. The statement of Mr Mooney before the magistrate did not refer specifically to the appellant being ordered to stop work. The Council's solicitor told the magistrate that the appellant had been ordered to stop work, as identified in the transcript (summarised par 6). In the appellant's letter to the Council dated 30 August 2008 she stated that after she was ordered to stop construction she started work again because she had safety concerns about the unfinished building work. Her evidence in cross-examination about how much money she spent after she was told to stop work was that about $20,000 was spent, a not insignificant amount. That building work continued after that date does not reflect well on the appellant particularly as she then expended substantial money when on notice that the work required development consent. The objective circumstances of the matter and the need to consider general deterrence for offences of this nature suggest that a penalty should be imposed and that an order under s 10A of the CSP Act is not appropriate. Mitigating circumstances 27 In terms of the mitigating factors to consider on sentence under s 21A(3) of the CSP Act, the appellant has no prior convictions (s 21A(3)(e)), is of good character (s 21A(3)(f)), is unlikely to reoffend (s 21A(3)(g)), has cooperated with the Council (s 21A(3)(m)) and has pleaded guilty at the earliest available opportunity (s 21A(3)(k), s 23). 28 The appellant has expressed remorse for the offence in her letter to Council dated 30 August 2008 (s 21A(3)(i)). The Council submitted her remorse should be tempered given the circumstance that she allowed work to continue after she was told to stop by the Council but I accept her evidence that she was concerned about the unfinished building work creating an unsafe environment for her children. Means to pay - s 6 Fines Act 1996 29 Section 6 of the Fines Act 1996 provides that in fixing a penalty the Court is required to consider information regarding the means of the accused as is reasonably and practicably available to the Court. I have allowed in additional evidence concerning the appellant's limited financial means which was not before the local court. That evidence is summarised above in par 12-15. It is unlikely that the appellant will be able to pay a substantial fine and I consider this should be taken into account in determining any penalty. Her evidence is that the amount of $60,000 spent on the buildings the subject of the offences was provided by her parents and the family of her former husband. Whether her parents can provide further funds is unexplored in her evidence. According to the statement of assets and liabilities filed with the Court when seeking a waiver of the filing fee she has minimal to nil income available to pay a substantial fine. Her solicitor has submitted on her behalf that a large (or any) fine will be likely to result in the sale of her house. 30 I accept the appellant's oral evidence and the documents tendered in relation to her financial circumstances she has no or limited income to pay a substantial fine. That material was not before the magistrate and is additional material I will take into account in setting a lower penalty for both offences of $4,000 each. 31 But for this additional material about her very limited financial means I would have confirmed the penalty imposed by the magistrate. The level of fine imposed by the magistrate is not excessive and indeed is at the lower end of the range of suitable penalties in my view but for one matter concerning the operation of the totality principle which I deal with below. No extra-curial punishment 32 It is not yet clear that the order for demolition will be acted upon, given the additional affidavit evidence of Mr Mooney that the development application now submitted has not yet been determined. I do not consider I can take the likelihood of demolition into account as an extra-curial punishment in these circumstances. Totality principle 33 The appellant's solicitor submitted the totality principle should apply given that while there were two offences charged there was a single course of conduct. The totality principle can be applied by a court when sentencing an offender for more than one offence where the offences have an element of "commonality" (per Gummow, Callinan and Heydon JJ in Johnson v R (2004) 205 ALR 346 at [33]). It requires the court to determine an appropriate sentence for each offence, consider questions of cumulation or concurrence and in reviewing the aggregate sentence, consider whether it is "just and appropriate" (Johnson v R per Gummow, Callinan and Heydon JJ at [18]). In my view, the two offences can be considered as a continuation of the same building work. I agree the totality principle should apply in this case as submitted by the appellant's solicitor. I will reduce the penalty for the second offence (construction of the separate dwelling - matter no 219133/08/3) to $2,000. Court costs 34 The appellant's solicitor also argued that the order for court costs made in the local court of $2500 ought be varied on appeal. This was only raised at the end of submissions at the hearing. It is referred to in the summons commencing the appeal. The summons stated under the sub-heading "details of appeal" that "the plaintiff appeals against the severity of the fines and costs". The definition of sentence in s 3 of the Review Act includes in ss (e) "any order for costs made by a Local Court against a person in connection with summary proceedings taken against the person". 35 The appellant's solicitor submitted that the costs awarded in the local court were excessive and submitted that $800 was more appropriate because that was what his experience suggested was appropriate. Apart from a submission to that effect from the Bar table there was no further evidence to support this submission. Consequently I had nothing before me at the hearing concerning how the costs were calculated in the local court. It is therefore very difficult to assess whether there should be a variation to the costs order in the local court. I do not consider I should vary the costs order made in the local court. Costs of this appeal 36 In relation to the costs of this appeal as the appellant has been successful in having the orders of the local court varied, the parties should pay their own costs of the appeal. Orders 37 The Court makes the following orders: 1. The appeal is upheld. 2. In matter no 219125/08/3 (alterations and additions to the existing dwelling) the penalty order of the local court is set aside. 3. In lieu of order 2, in matter no 219125/08/3 the appellant is fined $4000. 4. In matter no 219133/08/3 (construction of the separate dwelling) the penalty order of the local court is set aside. 5. In lieu of order 4, in matter no 219133/08/3 the appellant is fined $2000. 6. The order of the local court that the appellant pay court costs of $73 for each offence and professional costs in the sum of $2500 is confirmed. 7. Each party is to pay its own costs of this appeal. 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.