Land and Environment Court New South Wales Medium Neutral Citation: Canterbury-Bankstown Council v Naji [2016] NSWLEC 101 Hearing dates: 10 August 2016 Date of orders: 11 August 2016 Decision date: 11 August 2016 Jurisdiction: Class 5 Before: Pain J Decision: (1) The Defendant is convicted of the offence as charged. (2) The Defendant is fined in the sum of $ 28,000 (3) Pursuant to Criminal Procedure Act 1986 (NSW) s 257B, the Defendant is to pay the Prosecutor's costs of the proceedings in the sum of $23,000. (4) The exhibits are returned. Catchwords: SENTENCE – Plea of guilty to breach of Environmental Planning and Assessment Act 1979 – failure to comply with Complying Development Certificate in creating unauthorised basement level – offence committed negligently – minimal environmental harm Legislation Cited: Bankstown Local Environmental Plan 2015 Crimes (Sentencing Procedure) Act 1999, ss 3A, 19, 21A, 22 Criminal Procedure Act 1986, s 257B Environmental Planning and Assessment Act 1979 ss 5, 76A, 125 Fines Act 1996, ss 7, 10 Cases Cited: Axer Pty Ltd v Environment Protection Authority (1993) 113 LGERA 357 Bentley v BGP Properties Pty Ltd [2006] NSWLEC 34; (2006) 145 LGERA 234 Blue Mountains City Council v Carlon [2008] NSWLEC 296 Burwood Council v Doueihi [2013] NSWLEC 196; (2013) 200 LGERA 152 Burwood Council v Pratelli [2014] NSWLEC 28 Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 Council of the City of Sydney v Adams [2015] NSWLEC 206 Council of the Municipality of Kiama v Furlong [2009] NSWLEC 139 Council of the Municipality of Kiama v Gerringong Developments Pty Ltd [2007] NSWLEC 257 Council of the Municipality of Kiama v Pacific Real Estate (Warilla) Pty Ltd [2009] NSWLEC 191 Environment Protection Authority v Barnes [2006] NSWCCA 246 Environment Protection Authority v Waste Recycling and Processing Corporation [2006] NSWLEC 419; (2006) 148 LGERA 299 Gittany Constructions Pty Ltd v Sutherland Shire Council [2006] NSWLEC 242; (2006) 145 LGERA 189 Hoare v The Queen [1989] HCA 33; (1989) 167 CLR 348 Hunter's Hill Council v Touma [2008] NSWLEC 227 Maitland City Council v Link Building Services Pty Ltd [2008] NSWLEC 71 Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 Mosman Municipal Council v Menai Excavations Pty Ltd [2002] NSWLEC 132; (2002) 122 LGERA 89 Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120 Pittwater Council v Scahill [2009] NSWLEC 12; (2009) 165 LGERA 289 R v O'Neill [1979] 2 NSWLR 582 R v Olbrich [1999] HCA 54; (1999) 199 CLR 270 Secretary Department of Planning and Environment v Boggabri Coal Pty Limited [2014] NSWLEC 154 Veen v The Queen [1979] HCA 7; (1979) 143 CLR 458 Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465 Category: Sentence Parties: Canterbury-Bankstown Council (Prosecutor) Hasan Naji (Defendant) Representation: COUNSEL: M Wright (Prosecutor) S Nash with Z Shahnawaz (Defendant) SOLICITORS: Marsdens Law Group (Prosecutor) S P Nasti & Co (Defendant) File Number(s): 2016/00151706 Judgment Sentence for breach of Environmental Planning and Assessment Act 1979 1. The Defendant Mr Hasan Naji has pleaded guilty to an offence under s 125(1) of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) that, contrary to s 76A(1) of the EPA Act, between 4 August 2014 and 13 February 2015 he carried out development otherwise than in accordance with a complying development certificate (CDC). 2. At the time of the offence the Defendant was constructing a new dwelling on land at Chester Hill as an owner builder, for which a CDC was obtained from Mr Kayellou a private certifier (the certifier). On 13 February 2015 the Prosecutor Canterbury-Bankstown Council received from the certifier a notice of intention to issue an order relating to non-compliant building work and the illegal conversion of a subfloor area into a basement not in accordance with the CDC. 3. The offence is one of strict liability and mens rea is not an element of the offence. As the Defendant has pleaded guilty he has admitted the essential elements of the offence per R v O'Neill [1979] 2 NSWLR 582 at 588. Environmental Planning and Assessment Act 1. The EPA Act provides relevantly: 76A Development that needs consent (1) GeneralIf an environmental planning instrument provides that specified development may not be carried out except with development consent, a person must not carry the development out on land to which the provision applies unless: (a) such a consent has been obtained and is in force, and (b) the development is carried out in accordance with the consent and the instrument. (2) For the purposes of subsection (1), development consent may be obtained: (a) by the making of a determination by a consent authority to grant development consent, or (b) in the case of complying development, by the issue of a complying development certificate. … 125 Offences against this Act and the regulations (1) Where any matter or thing is by or under this Act, other than by or under the regulations, directed or forbidden to be done, or where the Minister, the Secretary, a council or any other person is authorised by or under this Act, other than by or under the regulations, to direct any matter or thing to be done, or to forbid any matter or thing to be done, and that matter or thing if so directed to be done remains undone, or if so forbidden to be done is done, a person offending against that direction or prohibition shall be guilty of an offence against this Act. … Statement of Agreed Facts 1. The parties agreed a statement of facts (SOAF) (Exhibit A) as follows (footnotes and annexures omitted): The Offence 1 The Defendant, Hasan Naji, pleaded guilty at the earliest available opportunity to the following offence: (a) That between 4 August 2014 and 13 February 2015 at 37 Esme Avenue, Chester Hill in the State of NSW he committed an offence under Section 125(1) of the Environmental Planning and Assessment Act 1979 ("EPA Act") in that contrary to Section 76A(1)(b) of the EPA Act, he carried out development otherwise than in accordance with a complying development certificate that had been obtained and was in force. Facts 2 The Defendant is the registered proprietor of the Land being Lot 47 DP13278 (37) Esme Avenue, Chester Hill ("the Land"). 3 The Land is zoned R2 Low Density Residential under the provisions of the Bankstown Local Environmental Plan 2015 ("BLEP 2015"). BLEP 2015 applied to the Land at the date of the offence, is still in force and continues to apply to the Land. 4 Development for the purpose of a dwelling house is permissible with consent in the R2 Low Density Residential zone pursuant to the Land Use Table in BLEP 2015. 5 On 4 August 2014, Bankstown City Council ("the Council") received a copy of complying development certificate 140/14 (provided by Council with its reference number CDC 308/14) issued by Sam Kayellou as the Principal Certifying Authority dated 30 July 2014 for the construction of a new two-storey dwelling house on the Land ("the CDC"). 6 Condition 3.41 of the CDC relevantly provides that: 3.41 Compliance with Plans Works must be carried out in accordance with the plans and specifications to which the complying development certificate relates. 7 On 13 February 2015, the Council received a Notice of Intention to Serve an Order dated 11 February 2015 issued by Sam Kayellou. The Notice of Intention to Serve an Order was issued in relation to "Non compliant building work in breach of the consent" being the "illegal conversion of a subfloor area into a basement, not in accordance with the CDC Conditions of consent". 8 The Notice of Intention to Serve an Order was referred to the Council's Building Compliance Team. 9 On 24 February 2015 at approximately 2.00pm, Gavin May, a building surveyor employed by the Council, attended the Land to investigate the development the subject of the Notice of Intention to Serve an Order. 10 On attendance at the Land, Mr May approached a person present on the Land and asked to speak with the owner of the Land. Mr May then had a conversation with a male person on the phone. That male person identified himself as the owner of the Land. Mr May and the male person on the phone agreed to meet on the Land the following day at 4.00pm. 11 Whilst on the Land on 24 February 2015, Mr May observed a number of men in a lower level basement area under the approved dwelling house on the Land. Mr May observed that the basement area was being accessed via a ladder through a floor in the location beneath the approved stairway on the ground floor. 12 On 25 February 2015 at approximately 4.10pm Mr May and Sam Roche, a building surveyor employed by the Council, attended the Land. The Land was at this time secured with temporary fencing and a locked gate. Mr May and Mr Roche met the person they now know to be the Defendant at the front boundary of the Land. Mr May informed the Defendant that Mr May and Mr Roche were on the Land to investigate noncompliant building work in breach of the CDC. Mr May asked the Defendant if Mr May and Mr Roche could inspect the building on the Land particularly the basement area. The Defendant agreed. 13 The Defendant unlocked the gate and led Mr May and Mr Roche onto the Land and into the ground floor of the dwelling house under construction on the Land. At that time, Mr May observed that the area that was being used the previous day for access to the basement level had been closed with a plyboard cover or similar material and covered with building material to prevent access. Mr May said to the Defendant words to the following effect: "I need to gain access to the basement floor level to undertake a thorough investigation." 14 Mr Roche, Mr May and the Defendant then moved the building material and plyboard cover to gain access to the basement floor area. Mr May placed a ladder down into the basement floor area and climbed down. Mr May was followed by the Defendant and Mr Roche. 15 On entering the basement area, Mr May and Mr Roche observed the basement area appeared to have been converted into an area capable of use as a habitable area. Mr May and Mr Roche undertook an inspection of the basement area. Mr May took five (5) photographs of the observations made by him at this time. 16 Mr Roche has measured the floor to ceiling height immediately below the approved ground floor kitchen area which was approximately 2800mm. 17 Mr May and Mr Roche observed the following work had been undertaken otherwise than in accordance with the CDC: (a) A basement area had been carved out which appeared to extend throughout the entire footprint of the ground floor area. (b) The external walls of the basement area were of concrete type construction. (c) The external wall on the southern and eastern sides of the basement area immediately below the proposed approved kitchen, dining and family area were constructed with a light weight material. Mr May and Mr Roche considered the building material to be a temporary measure due to lack of furring channels that would allow the installation of internal wall linings and framing elements that would allow the installation of windows and/or doors. (d) There appeared to be a bathroom area under construction in the basement area located immediately below the proposed living room on the ground floor. (e) Service penetrations had been installed in the bathroom area under construction and electrical wiring was installed throughout the ceiling and walls of other rooms. 18 The construction of the basement area and building work observed by Mr May and Mr Roche described at paragraph 17 above was not authorised by the CDC or the accompanying plans and was therefore carried out in breach of condition 3.41 of the CDC. 19 Mr May, Mr Roche and the Defendant then returned to the ground floor. Mr May then climbed down into a rear yard area to take two (2) photographs of that area. 20 Mr May then returned to the ground floor and had a conversation with the Defendant and Mr Roche in relation to the building work. At that time, Mr May provided the Defendant with a copy of the Notice of Intention to Serve an Order issued by Sam Kayellou on 11 February 2015. Mr May, Mr Roche and the Defendant had a conversation with words to the following effect: Mr May said: Have you previously received a copy [of the Notice of Intention to Serve an Order]? The Defendant said: No. Mr Roche said: Given that the development has not been constructed in accordance with the approved plans and the departures appear to be a significant breach of planning legislation, how do you expect to finalise the development? The Defendant said: My certifier asked me to block it off. I have done that and will not use the area. The RL's are consistent with the approved plan. It appears high because I have over excavated the site. Mr May said: Council may not be satisfied with merely blocking the void area because an entire storey would still remain that could easily be adapted in future for habitable purposes. Mr Roche then said: The development as built does not comply with the development standards contained in the General Housing Code SEPP because it is now considered a three storey development. Stop all building work on the site until such time that the matter can be resolved. The Defendant said: How long will that take? Mr May said: This is a significant breach of the planning legislation. Council will need to consider its options. I will get back to you as a matter of urgency but I encourage you to stop all work immediately until you receive something in writing. 21 Mr May and Mr Roche left the Land at approximately 5.00pm. 22 On 11 March 2015, Mr May telephoned the Defendant and advised the Defendant that the matter was being investigated and requested that the Defendant come to Council offices for an interview. The Defendant agreed to come in to Council offices for an interview on 13 March 2015 at 12.00pm. 23 On 13 March 2015, at approximately 12.00pm the Defendant attended the Council offices for an interview. Mr May and Habib Tarabay, an officer of the Council, were present at the interview. Mr May and Mr Tarabay took handwritten notes of the interview and a consolidated typed record of the notes taken during the interview was made at the conclusion of the interview. During the interview, Mr May asked the Defendant questions and the Defendant responded with words to the following effect: Mr May said: Do you agree that on 25 February 2015, Council Officers attended the property at 37 Esme Avenue, Chester Hill and discussed with you matters relating to unauthorised building work? The Defendant said: Yes. Mr May said: Are you the owner of 37 Esme Avenue, Chester Hill? The Defendant said: Yes. Mr May said: How long have you owned the property? The Defendant said: Since 2009. Mr May said: Who is responsible for making decisions regarding the property? The Defendant said: Myself. … Mr May said: Are you currently undertaking construction work at the property? The Defendant said: Yes. Mr May said: Has a Principal Certifying Authority been engaged? The Defendant said: Yes. Mr May said: Who is your Principal Certifying Authority? The Defendant said: Sam Kayellou. Mr May said: Did Mr Kayellou issue a complying development certificate? The Defendant said: Yes. I received it. Mr May said: Did you receive a copy of the complying development determination notice dated 30 July 2014 as issued by Mr Kayellou? The Defendant said: Yes. Mr May said: Did you receive a copy of the approved plans associated with the determination notice? The Defendant said: Yes. … 24 During the interview on 13 March 2015, the Defendant admitted that an unauthorised basement floor level was constructed underneath the approved dwelling on the Land. In this regard, Mr May continued to ask the Defendant questions and the Defendant has responded with words to the following effect: Mr May said: When did you start construction work at 37 Esme Avenue? The Defendant said: Approximately September 2014. Mr May said: Can you describe in your own words the appearance of the dwelling house under construction? The Defendant said: It is a house, pretty much finished but I have a problem with the bottom floor which is illegally built. Mr May said: More specifically, can you describe in your own words the appearance of the basement floor level? The Defendant said: It is blocked off at present with Hiebel panels. It is a two storey structure and the bottom floor is pretty much the same dimension as the rest of the house. Mr May said: Would you agree that the floor area is approximately 150m2 to 160m2? The Defendant said: Yes, probably. Mr May said: Would you agree that there are bathroom fittings, electrical connections, bedrooms, a kitchen and family/living rooms? The Defendant said: What do you mean by fittings? Mr May said: Services for bathroom plumbing and the like. The Defendant said: Yes. But there is not kitchen. I planned to use it as an entertainment area for the swimming pool only. There was a lot of rain during excavation which lost all my suspension piers so we kept cutting the ground back and it was my decision to make it as one level. 25 During the interview on 13 March 2015, Mr May has also shown to the Defendant seven (7) photographs taken of the basement level and two (2) photographs taken of the rear yard area on the Land on 25 February 2015 and has asked the Defendant questions in relation to the photographs. The Defendant responded by giving answers with words to the following effect: Mr May said: I will now present to you an exhibit, photograph 1. What can you tell me about this photograph? The Defendant said: Another space underneath. Potential bathroom. Mr May said: I will now present to you an exhibit, photograph 2. What can you tell me about this photograph? The Defendant said: Entertainment area for the pool which I have now closed off. Mr May said: I will now present to you an exhibit, photograph 3. What can you tell me about this photograph? The Defendant said: Entertainment area. Mr May said: I will now present to you an exhibit, photograph 4. What can you tell me about this photograph? The Defendant said: Storage and entertainment area. Mr May said: I will now present to you an exhibit, photograph 5. What can you tell me about this photograph? The Defendant said: Storage and entertainment area. Mr May said: I will now present to you an exhibit, photograph 6. What can you tell me about this photograph? The Defendant said: I was under the assumption that it was okay at the time but once Sam told me that I have to close it I did it. Mr May said: I will now present to you an exhibit, photograph 7. What can you tell me about this photograph? The Defendant said: To close off the entertainment area and make it unusable. 26 During the interview on 13 March 2015, the Defendant admitted that the basement floor level was not shown on the plans approved with the CDC and that the Defendant has organised and is responsible for undertaking excavation work associated with the basement level and the construction of the footings and associated basement level floor slab. In this regard, Mr May has asked the Defendant questions and the Defendant has responded with words to the following effect: Mr May said: With regards to the basement level, do you agree that this basement level is not indicated on the plans approved with CDC-140/2014 by Mr Kayellou? The Defendant said: No it was not on the plan. Mr May said: Who organised the building work? The Defendant said: I was the owner builder on site. Mr May said: Were you responsible for undertaking excavation work at the property? The Defendant said: Yes I did. Mr May said: Who was responsible for undertaking the excavation work? The Defendant said: A subcontractor. Chalouhi excavation or something. Mr May said: Were you responsible for the construction of footings and associated basement level floor slab? The Defendant said: Yes. Mr May said: Who was responsible for the construction of the footings and associated basement level floor slab? The Defendant said: It was my concreter. His name is Raed from Ray formworking. Mr May said: Do you have any approval for the basement floor level? The Defendant said: No I don't have any plans it just happened gradually. I just kept clearing it. There was a lot of topsoil. I wanted it to be structurally sound. The soil was bad and was collapsing so I scraped it back and made it level. Mr May said: Do you have any plans associated with the basement floor level? The Defendant said: No. 27 On 24 March 2015, Mr May and Mr Roche again attended the Land and Mr May attached a copy of a Cease Work Order dated 24 March 2015 to the front fence of the Land. At that time, Mr May telephoned the Defendant and advised the Defendant during this telephone conversation that the Cease Work Order had been issued and explained that the Defendant was required to cease all work on the Land under the CDC. Mr May and the Defendant had a conversation with words to the following effect: Mr May said: Are you available for me to deliver the Order to you? The Defendant said: I'm unavailable but I will come to Council tomorrow to collect the Order. 28 On 25 March 2015, the Defendant attended Council offices. At that time, Mr May gave the Defendant a copy of the Cease Work Order. Mr May observed the Defendant read the Order and Mr May and the Defendant then had a conversation with words to the following effect: Mr May said: Mr Naji, do you understand what is required with regard to the Order? The Defendant said: Yes. 29 On 1 March 2016, Mr May attended the Land for the purposes of undertaking a further inspection of the Land. At that time, there was no answer at the door from any person on the Land. Mr May has taken one (1) photograph of the Land from Esme Avenue. Mr May has then proceeded to take two (2) photographs of the rear yard of the Land from the neighbouring property at 39 Esme Avenue. Mr May has observed that the construction of the approved dwelling house on the Land has been completed and the dwelling house appeared to be occupied. Annexed hereto and marked "A" is a copy of three (3) colour photographs taken by Mr May on 1 March 2016. Prior Offences 30 The Prosecution is not aware of any other offences committed by the Defendant. Co-operation with the Prosecutor 31 The Defendant has fully co-operated with the Prosecutor in its investigation of the offence prior to the commencement of the proceedings. 32 The Defendant has also offered to pay the Prosecutor's costs of these proceedings. 1. The Prosecutor must establish matters adverse to the Defendant not otherwise agreed beyond reasonable doubt per R v Olbrich [1999] HCA 54; (1999) 199 CLR 270. Additional evidence 1. An agreed bundle of documents was tendered as Exhibit B which contained the CDC and approved plans and the certifier's notice of intention to serve an order for the illegal conversion of the subfloor area into a basement dated 11 February 2015. The bundle also included photographs taken at the site on 25 February 2016 and the Bankstown Local Environmental Plan 2015 (NSW) (BLEP). The Defendant provided to the Court two character references that were written in knowledge of these proceedings which were tendered as Exhibit 1. I have read these and take them into account in mitigation. 2. The Prosecutor read the affidavit of Mr May the Prosecutor's Team Leader Building Compliance sworn 15 April 2016. In his affidavit Mr May attests to the inspection he undertook of the building at 37 Esme Avenue on 25 February 2015. During the inspection Mr May entered and inspected the basement floor area and based on what he observed it seemed that the basement floor area extended the full length and width of the ground floor footprint. Mr May made some calculations based on his assessment of the size of the basement floor area compared to the approved plans and concluded that the floor space ratio of the building as built exceeded the permissible floor space ratio in both the State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 (NSW) and the BLEP. Mr May's requests to access the basement area sent on 4 March and 29 March 2016 were not responded to by the Defendant. Annexed to the affidavit were the approved floor plans and an extract from the Floor Space Ratio Map from the BLEP. Affidavit of Mr Naji 1. The Defendant's affidavit sworn 15 July 2016 was read. Mr Naji stated that he built the house to be his family home and not to make a profit. Mr Naji understood that he was required to carry out the works in accordance with the plans approved by the private certifier, and that he needed approval from the certifier for any modifications. The plans annexed to the affidavit show that the basement area was to be open on the sides and to the back. When Mr Naji began excavation he found the soil to be unstable and he continued to excavate until he was able to excavate for footings and piers on solid ground. Mr Naji was concerned with the house being built on solid foundations. After the excavation works were completed and the structural steel was in place Mr Naji attempted to contact the certifier for an inspection without success. Mr Naji believes that the certifier attended the site in or about early October 2014. 2. In late January or early February 2015 Mr Naji attended the certifier's office. The certifier informed him that there had been a complaint to the Prosecutor about the basement works and that he had attended the site and saw that the slab was not on the original plans. Mr Naji told the certifier that as he did not hear anything from him after the October 2014 inspection he thought the basement works were acceptable. Mr Naji stated that he was only going to use the basement as a storage or entertainment area with a bathroom for the pool. The certifier told him that "it's not really a problem you need to put walls up and block it off". Mr Naji then arranged for the basement area to be blocked off and had no further discussions with the certifier. He then became aware that a notice had been issued by the certifier with an intention to serve an order. 3. Mr Naji stated that he understood that he was carrying out the works to the knowledge and direction of the certifier however accepts responsibility for his actions. He requested that the Court accept his apology and his genuine belief that at the time of the offence he thought he was not in breach of the EPA Act. It was his belief that he was making the building more stable and aesthetically superior. Mr Naji emphasised that he accepts that it is important for the planning laws to be complied with. Mr Naji intends to seek approval for the unapproved works. He asked the Court to exercise its discretion in not imposing a heavy penalty. Purposes of sentencing 1. The offence charged is a strict liability offence. It is not part of the elements of the offence that the Defendant intended to commit the offence. Section 3A of the Crimes (Sentencing Procedure) Act 1999 (NSW) (CSP Act) identifies the purposes of sentencing. It states: 3A Purposes of sentencing The purposes for which a court may impose a sentence on an offender are as follows: (a) to ensure that the offender is adequately punished for the offence, (b) to prevent crime by deterring the offender and other persons from committing similar offences, (c) to protect the community from the offender, (d) to promote the rehabilitation of the offender, (e) to make the offender accountable for his or her actions, (f) to denounce the conduct of the offender, (g) to recognise the harm done to the victim of the crime and the community. 1. Section 21A of the CSP Act identifies numerous matters which a court must take into account when sentencing including in relation to aggravating (s 21A(2)) and mitigating (s 21A(3)) factors. Objective circumstances 1. Relevant factors to determine the objective gravity of an offence under the EPA Act were identified in Bentley v BGP Properties Pty Ltd [2006] NSWLEC 34; (2006) 145 LGERA 234 at [163] and Gittany Constructions Pty Ltd v Sutherland Shire Council [2006] NSWLEC 242; (2006) 145 LGERA 189 at [110], including 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. The foreseeability of the risk of harm is also relevant as well as the practical measures that could have been taken to avoid harm as well as the defendant's control over the causes of the harm, per Council of the Municipality of Kiama v Pacific Real Estate (Warilla) Pty Ltd [2009] NSWLEC 191 at [67]. Another relevant factor can be consideration of the statutory scheme in which the offence provision appears: see Blue Mountains City Council v Carlon [2008] NSWLEC 296 at [48], Mosman Municipal Council v Menai Excavations Pty Ltd [2002] NSWLEC 132; (2002) 122 LGERA 89 at [35]. The nature of the offence 1. An important consideration in this case is upholding the statutory scheme for orderly planning in NSW under the EPA Act, as identified in numerous cases including Menai and Burwood Council v Doueihi [2013] NSWLEC 196; (2013) 200 LGERA 152. In Pittwater Council v Scahill [2009] NSWLEC 12; (2009) 165 LGERA 289 Preston J said at [46]: [46] There is a need for the upholding of the integrity of the system of planning and development control. This system depends on persons taking steps to obey the law by ascertaining when development consent is required and then obtaining development consent before carrying out development: Byron Shire Council v Fletcher (2005) 143 LGERA 155 at [60]-[61]; Cameron v Eurobodalla Shire Council at [72]-[80]; Byers v Leichhardt Municipal Council [2006] NSWLEC 82 at [83], [85]; Gittany Constructions Pty Ltd v Sutherland Shire Council at [104]; and Garrett v Freeman (No 5) (2009) 164 LGERA 287 at [58]. Development must be carried out in accordance with the terms of the development consent obtained: Gittany Constructions Pty Ltd v Sutherland Shire Council at [105]. 1. The objects of the EPA Act are outlined in s 5 and include: 5 Objects The objects of this Act are: (a) to encourage: (i) the proper management, development and conservation of natural and artificial resources, including agricultural land, natural areas, forests, minerals, water, cities, towns and villages for the purpose of promoting the social and economic welfare of the community and a better environment, (ii) the promotion and co-ordination of the orderly and economic use and development of land, … (vi) the protection of the environment, including the protection and conservation of native animals and plants, including threatened species, populations and ecological communities, and their habitats, and … 1. These objects are achieved partly through the system of planning approval, which requires that a person have development consent to carry out development (other than development that does not require consent). This system ensures through public consultation and proper assessment of applications the efficient and sustainable development of New South Wales. The Defendant submitted that this was a neutral factor given that it is common to all offences of this type but I do not agree. This consideration informs the assessment of the seriousness of the offence based on the objectives circumstances. As stated in Secretary Department of Planning and Environment v Boggabri Coal Pty Limited [2014] NSWLEC 154 at [19] offences which undermine the integrity of the regulatory scheme are objectively serious. Maximum penalty 1. The maximum penalty for the offence committed is a relevant consideration reflecting the seriousness of the offence as nominated by the Parliament of New South Wales, per Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 at 698; see also Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357at 372. The maximum penalty at the date of the offence was $1,100,000 and applies in this case. The maximum penalty for individuals has been reduced since the time of the offence to $500,000 as part of amendments to the EPA Act introducing a three tier offence regime in ss 125A, 125B and 125C which commenced on 31 July 2015. Section 19(2) of the CSP Act states that if the penalty for an offence is reduced, the reduced penalty applies to offences committed before the commencement of the provision reducing the penalty, but does not affect any penalty imposed before its commencement. For the reasons identified in Council of the City of Sydney v Adams [2015] NSWLEC 206 at [22]-[30] by Preston J this section does not apply to this offence under s 125(1). Environmental harm 1. There is no evidence of any actual or potential environmental harm as a result of the offence such as a loss of amenity for neighbours. The overall height of the Defendant's dwelling did not increase as a result of the actions giving rise to this offence. The Defendant accepted that the offence caused harm in the sense that it undermined the New South Wales planning system. In the absence of any link between the floor space ratio exceedances identified by Mr May and the absence of development assessment by the Council, and any environmental impacts, the environmental harm was low. The onus was submitted to lie on the Prosecutor to demonstrate environmental harm and no such evidence had been produced, which submission I accept. 2. The Prosecutor relied on the absence of an application to the Prosecutor to regularise the breach by the Defendant and therefore no assessment of the unauthorised work by the Prosecutor as a failure of the Defendant relevant to sentencing. According to the Defendant's affidavit he is awaiting the outcome of this prosecution to determine if he can afford to take that route. I consider this is a neutral factor in this case. The Defendant does not have the benefit of the Court knowing that the Prosecutor approved the use of the illegally constructed structure. That absence does not count against the Defendant in weighing up objective seriousness in the absence of evidence of environmental harm from the Prosecutor. Control over causes 1. The Defendant has admitted that he had control over the causes leading to the commission of the offence, as shown in the record of interview extracted in the SOAF at [24]. Defendant's state of mind and reasons for committing the offence 1. The Defendant's reasons for committing the offence are relevant in determining the appropriate penalty, see Axer Pty Ltd v Environment Protection Authority (1993) 113 LGERA 357 at 366. A strict liability offence that is committed intentionally, negligently or recklessly will be objectively more serious than one not so committed, Gittany at [123]. Pursuant to s 21A(2)(o) of the CSP Act, it is an aggravating factor if the offence was committed for financial gain. It was not according to the Defendant's affidavit which I accept. 2. The Prosecutor submitted that the Defendant engaged in deliberate conduct, not mistaken or inadvertent, in carrying out work contrary to the CDC in that he failed to seek advice about soil stability, continued to excavate in the absence of advice, created a basement level under the existing floorplate and took steps to prepare it for use. No application has been made to regularise the building work to enable the Council to assess the impacts of the building as built. The Prosecutor must prove this aggravating factor beyond reasonable doubt, a high hurdle. 3. The Defendant accepts that he acted negligently in failing to get professional advice including contacting the certifier when soil instability became apparent during excavation. I accept that on the evidence the Prosecutor has not established beyond reasonable doubt that the Defendant acted deliberately in failing to comply with the CDC plans. The distinction drawn in the Defendant's submissions between taking actions deliberately, as occurred in this case, and with doing so in deliberate knowledge that these actions were in breach of the CDC is valid in light of the evidence of the Defendant at [15] and [16] of his affidavit. That he made full and frank admissions in the interview with the Prosecutor's officers on 13 March 2015 as identified at [23]-[25] of the SOAF that the work was done illegally does not undermine the Defendant's submission that the work was not done deliberately in breach of the CDC. 4. I also accept the related submission of the Defendant that the reason for the commission of the offence was the desire of the Defendant to protect the structural integrity of his home. This is confirmed by his affidavit about which he was not cross-examined. He accepts that he should have sought permission to carry out the work which differed from the CDC plans. 5. I note for completeness that the SOAF at [27] refers to a stop work order being served on the Defendant on 24 March 2015. This is outside the period of the charge of 4 August 2014 to 13 February 2015 and cannot be considered as part of the events relevant to the objective seriousness of the offence. Conclusion on objective seriousness 1. Weighing up these various factors I consider the objective seriousness of the offence is at the high end of the low range. Subjective factors 1. Section 21A(3) of the CSP Act identifies some of the relevant mitigating factors as follows: 21A Aggravating, mitigating and other factors in sentencing … (3) Mitigating factors The mitigating factors to be taken into account in determining the appropriate sentence for an offence are as follows: (a) the injury, emotional harm, loss or damage caused by the offence was not substantial, … (e) the offender does not have any record (or any significant record) of previous convictions, (f) the offender was a person of good character, (g) the offender is unlikely to re-offend, (h) the offender has good prospects of rehabilitation, whether by reason of the offender's age or otherwise, (i) the remorse shown by the offender for the offence, but only if: (i) the offender has provided evidence that he or she has accepted responsibility for his or her actions, and (ii) the offender has acknowledged any injury, loss or damage caused by his or her actions or made reparation for such injury, loss or damage (or both), … (k) a plea of guilty by the offender (as provided by section 22), … (m) assistance by the offender to law enforcement authorities (as provided by section 23). Prior record and good character of the Defendant 1. The Defendant has no prior convictions. I am satisfied that the Defendant is otherwise of good character. Likelihood of reoffending 1. I do not consider that there is any likelihood of the Defendant reoffending. He has given evidence that this house is the only house he will build as an owner builder. Remorse and contrition 1. The Prosecutor accepted that the Defendant has expressed genuine contrition and remorse, however submitted that this expression had not been translated into actions, relying on Environment Protection Authority v Waste Recycling and Processing Corporation [2006] NSWLEC 419; (2006) 148 LGERA 299. In that decision Preston J stated at [203] that "contrition and remorse will be more readily shown by the offender taking actions, rather than offering smooth apologies through their legal representatives." 2. Section 21A(3)(i) of the CSP Act provides that remorse shown by an offender is a mitigating factor only if the offender has provided evidence that she or he has accepted responsibility for their actions, and the offender has acknowledged any injury, loss or damage caused and/or made reparation for such injury, loss or damage. The Defendant submitted that both of these elements had been met by reference to the affidavit of Mr Naji in which he accepted responsibility for his actions and his acknowledgement of the harm to the planning system. 3. I accept that the expression of contrition and remorse made by the Defendant is genuine and is confirmed by his frank admissions in the record of interview in March 2015. Absence of more positive action does not preclude this defendant's reliance on this mitigating factor. I consider that the Defendant has satisfied the elements of s 21A(3)(i) on this occasion. Early plea of guilty 1. Sections 21A(3)(k) and 22 of the CSP Act provide that the court may impose a lesser penalty than it would otherwise have imposed in circumstances where the Defendant has entered a plea of guilty. The guideline judgment of the Court of Criminal Appeal of New South Wales in R v Thomson; R v Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383 sets out the appropriate discount being in the order of 10% to 25%. The Defendant pleaded guilty at the second directions hearing and it was accepted by the Prosecutor that he pleaded guilty at the earliest opportunity. Assistance to authorities 1. The Prosecutor accepted in the SOAF at [31] that the Defendant has cooperated fully with the Prosecutor in its investigation of the offence prior to the commencement of the proceedings. The frank admissions of the Defendant identified in the SOAF are to his credit. Deterrence General 1. Deterrence is an important factor in sentencing for environmental offences. As held by Mahoney JA in Axer at 359: The quantum of the fines which the legislation allows to be imposed has no doubt been fixed not merely to indicate the seriousness with which such pollution is regarded but also to deter those engaged in such activities and to procure that they will take the precautions necessary to ensure that it does not occur. … The legislation does not seek merely to prevent deliberate or negligent pollution. It envisages that, at least in many cases, proper precautions must be taken to ensure pollution does not occur. 1. A sentence should operate as a powerful factor in preventing the commission of similar offences by those who might otherwise be tempted by the prospect that only light punishment will be imposed per Environment Protection Authority v Waste Recycling and Processing Corporation at [228]. 2. General deterrence is particularly relevant in these circumstances. It is of upmost importance that the Court upholds the integrity of the planning system in this state. Persons holding development consent cannot operate under the impression that if they were to breach the conditions of consent, the penalty would not be substantial. This applies whether the consent is for a small development such as the present case or a large coal mine. Specific deterrence 1. The Defendant submitted that specific deterrence was unnecessary in the circumstances as the Defendant intends never to act as an owner builder again. I agree given the sworn statements of the Defendant at [9] of his affidavit which I accept. Consistency in sentencing 1. The principle of even-handedness requires that a court consider if there is any general sentencing pattern for like offences in order to determine a consistent approach to penalty. This principle must always be applied subject to the particular circumstances of the case before the court, mindful of the different circumstances leading to penalty in other cases. Caution must be exercised in considering other cases because of the inevitable disparity between subjective and objective circumstances applicable to those cases, compared to the same circumstances found to exist in this case. 2. The parties identified several cases they considered comparable. In Council of the Municipality of Kiama v Furlong [2009] NSWLEC 139 the defendant was fined $11,000 for an offence under s 125(1) of the EPA Act for carrying out development without consent contrary to s 76A(1) of the Act. The defendant carried out unauthorised building works in conjunction with approved renovations to an existing dwelling house. The unauthorised works were regularised by the approval of a development application and the issuance of a building certificate prior to the sentence hearing. The defendant acted deliberately but the offence was not committed in the course of his income generating work as a builder but to build a home for his family in difficult financial circumstances. The objective seriousness was low. 3. Other cases summarised in Furlong at [38]-[40] follow: 38 In The Council of the Municipality of Kiama v Gerringong Developments Pty Limited [2007] NSWLEC 257 alteration of a motel and restaurant was carried out without the necessary development consent. The changes included an increase in the number of units, three new terraces, ten new courtyards and construction of a new lap pool. A development application for the work had been lodged but not determined at the offence date. A stop work order was issued but not complied with. The defendant was aware the works were unauthorised. It was an aggravating circumstance that work continued after the stop work order. The company's director expressed contrition and remorse. Other mitigating factors included the early guilty plea, the defendant's good character and the cooperation with the prosecutor. A penalty of $20,000 was imposed. 39 In Maitland City Council v Link Building Services Pty Limited [2008] NSWLEC 71 45 items of building work on a hotel were carried out in a way inconsistent with a consent granted by the council. The sole director of the defendant stated he had no concern about non-compliance and it was held that the action was a deliberate and wilful contravention of the EP&A Act for commercial gain. Lloyd J described the breach as serious. No contrition or remorse was expressed. A penalty of $17,500 was imposed taking into account the very large amount of prosecutor's costs the defendant agreed to pay (approximately $80,000). 40 In Hunter's Hill Council v Touma [2008] NSWLEC 227 the defendant carried out development including the construction of office space, a kitchen and a bathroom prior to obtaining consent for the work. A development application had been lodged during the carrying out of the building work. The defendant expressed regret in not complying with the law but believed at the time consent would be forthcoming. The defendant had no previous convictions, had pleaded guilty at the earliest opportunity and had cooperated with authorities. A penalty of $15,000 was imposed. 1. Additional cases also identified by the parties included Council of the City of Sydney v Adams. The defendant was fined $80,000 reduced to $60,000 for demolishing elements of heritage items identified as being of exceptional significance, an offence against s 125(1) of the EPA for a breach s 76A. The defendant continued the demolition after being directed to stop work by a council officer. The offence caused actual harm of medium seriousness which was considered to be substantial and an aggravating factor in sentencing. The defendant belatedly applied for and obtained development consent for works, some of which may have involved the partial mitigation of the harm. The defendant committed the offence recklessly but not intentionally. 2. In Burwood Council v Pratelli [2014] NSWLEC 28 the defendant pleaded guilty to an offence under s 125(1) of the EPA Act in that in constructing a dwelling she breached three conditions of consent. There was no actual or potential environmental harm for the two breaches that were established by the prosecutor. The defendant did not commit the offence intentionally, recklessly or negligently and did not profit from the offence. The judge accepted that the defendant had learnt her lesson and that there was no need for specific deterrence, and that she was contrite and remorseful. The defendant had taken steps to rectify the noncomplying work and had pledged to undertake further steps to regularise and rectify the works. His Honour found that those steps and promised actions were also evidence of the defendant's genuine contrition and remorse. A fine of $13,000 was imposed which was reduced by 25% to $9,750 in light of the early guilty plea. 3. The circumstances of this offence are more serious than in Pratelli given the Defendant's negligence. The objective seriousness of Adams, Gerringong and Link Building Services is markedly greater. Prosecutor's costs 1. The Defendant has agreed to pay the Prosecutor's costs of $23,000. The Defendant submitted this is a substantial sum which can be considered relevant to sentencing per Environment Protection Authority v Barnes [2006] NSWCCA 246, which submission I accept. Finding on penalty 1. When sentencing the Court must apply the instinctive synthesis approach by identifying all the relevant factors, discussing their importance and making a "value judgment as to what is the appropriate sentence given all the factors of the case", per Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120 at [26] unanimously following Markarian at [51] per McHugh J. The sentence must reflect all the relevant objective circumstances of the offence and subjective circumstances of the defendant, see Veen v The Queen [1979] HCA 7; (1979) 143 CLR 458 at 490 and Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465 at 472-473, 490-491. The sentence should not exceed what is "justified as appropriate or proportionate to the gravity of the crime considered in the light of its objective circumstances", per Veen v The Queen (No 2) at 472, 485-486, 490-491, 496 and Hoare v The Queen [1989] HCA 33; (1989) 167 CLR 348 at 354 (Mason CJ, Deane, Dawson, Toohey and McHugh JJ). Weighing up the objective and subjective matters before me I consider that a penalty of $40,000 reduced by 30% should be imposed, resulting in a penalty of $28,000. 2. The Court makes the following orders and requests that the Defendant make all the payments specified to the Land and Environment Court registry. Under the Fines Act 1996 (NSW) s 7 payment is required within 28 days. Under s 10 of the Fines Act an application can be made to the Registrar of the Court for further time to pay. Orders 1. The Court orders: 1. The Defendant is convicted of the offence as charged. 2. The Defendant is fined in the sum of $ 28,000 3. Pursuant to Criminal Procedure Act 1986 (NSW) s 257B, the Defendant is to pay the Prosecutor's costs of the proceedings in the sum of $23,000. 4. The exhibits are returned. ********** Amendments 18 August 2016 - Caselaw formatting errors - italicising of case citations 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. Decision last updated: 18 August 2016