Appeal Against Council Order Closing Unauthorised Auto Repair Facility Goes Flat!

The operator of an automobile repair facility as lost an appeal against an order issued to him by Ryde Council directing him to cease the use. The appeal was heard before Commissioner Dixon. Her judgement affirming the Council's order, Broholm v City of Ryde Council, (2014) NSWLEC 1201, which was handed down on 28 October 2014, can be reviewed at the following link:

http://www.caselaw.nsw.gov.au/action/PJUDG?jgmtid=175070

The premises where the facility in question was operating was located in a single storey corrugated iron shed, across the street from a block of flats. The Council received a complaint from a member of the public that a car repair shop had been operating in the shed for a number of years. An officer of the Council attended the premises and, based upon his observation that a number of derelict vehicles and body parts were stored outside the shed, arrived at the conclusion that the shed was being used for the purpose of restoring and repairing vehicles. The officer further determined that the vehicle repair use had the potential to generate noise and traffic, and thus to impact adversely on the amenity of local residents. On the basis of these findings, and on the basis of provisions in the Council's Local Environmental Plan that declared that use of the land in the particular location (which was classified as being within a "B4 Mixed Use Zone") as a "vehicle body repair shop" was prohibited, the Council proceeded to issue the ""cease use" order.

The operator's appeal against the order was based on two primary grounds, both of which were rejected by Commissioner Dixon.

First, the operator argued that he had the benefit of "existing use rights" which authorised him to engage in the repair of vehicles notwithstanding that the use was prohibited under the Council's current local environmental plan. The operator's claim was that the premises had been operated during the period from 1953 - 1998 as a shop for the welding, cutting, grinding, painting and fabrication of metals for the construction of wrought iron gates, and that the prior use thus entitled him to carry out similar kinds of metalwork with respect to automobiles. 

The Court followed a long line of precedent which holds that in order for "pre-existing use" rights to be valid, the claimed pre-existing use must have been lawful before it became prohibited. The Court found that the alleged pre-existing metalwork facility would have been classified as a "light industry" under the planning scheme ordinance that was in force at the time (1953) that the facility was claimed to have commenced operating. However, the previous planning scheme ordinance required that development consent be obtained for any "light industry" use. As there was no evidence that any such consent had ever been granted, the claim that the metalwork facility had been operating lawfully under the planning scheme ordinance could not be sustained. Consequently, the contentions advanced by the operator of the vehicle repair facility that he had the right to continue operating under the cloak of "existing use rights" did not succeed.

The operator's secondary argument, to the effect that he was a "car enthusiast who enjoyed "doing up" cars as a hobby and that he was operating the premises on a completely "non-commercial" basis was even weaker, and was rejected by the Court. Commissioner Dixon found that the work that the definition of (the prohibited use of) vehicle body repair did not require any commercial component. Thus, it was irrelevant whether the work that was being carried out in the shed, involving the cutting, welding and painting of car parts - was being done for financial gain or as a "hobby" as the operator claimed. In either case, the use in the particular land use zone was prohibited. (Further, it surely appears somewhat "incredible" that the alleged use was "non-commercial" in light of evidence that was brought forward in the proceeding that the shop had been operating for seven days a week.

An interesting aspect of this case is the fact that the Council was apparently aware of the use of the shed for the purposes of vehicle repair for many years before it proceeded to issue the closure order and that Council officers had apparently told the operator that they were "satisfied" that the use enjoyed the benefit of existing use rights. While of course a statement by a Council officer is not by itself sufficient to confer any rights under NSW planning law, such comments clearly have the potential to complicate an enforcement action. Similarly, longstanding tolerance by a council of an unauthorised use (as apparently  can also cause problems for an eventual enforcement action to restrain that use. The obvious moral here is that Council officers must make careful assessments as to whether there is a factual or legal foundation for a claim of existing use rights before they carry out any discussions with a person who is engaged in a suspected prohibited use, and must exercise care and restrain when making any statements concerning the lawfulness of a use.

On the other side of the coin, the moral for persons who seek to continue land uses under the umbrella of existing use rights is that they must make a thorough investigation of the history surrounding the pre-existing use, and must make sure that there is sufficient proof to establish that the pre-existing use was being carried out lawfully before a change in zoning controls made the use unlawful (prohibited). As noted by Commissioner Dixon, the proponent of a claim of "existing use" rights has the burden of proof, and vindicating that burden of proof is almost always "easier said than done".  

Tougher Criminal Enforcement Regime to Be Introduced to NSW Parliament for Planning Offences - Will It Make A Difference if it Becomes Law?

The Sydney Morning Herald has reported that the NSW State government is planning to introduce legislation to Parliament that would lead to the enactment of a significantly strengthened penalty regime for "planning law" offences. The article indicates that the new enforcement provisions will be drawn from the Planning Bill 2013 that failed to find sufficient political support to gain passage. A link to the report in the Herald  (17 October 2014) is below: 

http://www.smh.com.au/nsw/stronger-powers-to-prosecute-wayward-developers-for-land-and-environment-court-20141017-116azf.html

and a link to the "Exposure Draft" of the Planning Bill 2013 is also provided, as follows:

https://majorprojects.affinitylive.com/public/4753629ee2d34e89e72dab8963a117a3/Planning_Bill_2013.pdf

If the legislation does secure approval in the Parliament, the potential maximum criminal penalties for breaches of planning law would be greatly increased above the penalties that can be imposed under the present Environmental Planning and Assessment Act 1979.  Under section 126 of the EP & A Act, the maximum possible penalty for an offence is $1.1 million, with possible further "daily penalties" in the amount of $110,000. The penalty framework under the EP & A Act does not differentiate between the penalties that may be imposed upon a corporation and those that may be imposed upon an individual - the same scheme applies to both (except in relation to "penalty notice" offences, in which case the penalties that can be assessed against corporate entities are specified as being higher than those which can be given to individuals).

The criminal penalty structure that is outlined in the Planning Bill 2013 follows the model that has been incorporated into the Protection of the Environment Operations Act 1997 in that various "tiers" of offences can attract different levels of penalties.

The most serious offence under the Planning Bill 2013 provisions is a "Tier 1" offence.  The proposed legislation specifies that a Tier 1 prosecution can be brought only in circumstances where the prosecutor can establish that the offence was committed intentionally and either that the offence caused or was likely to cause significant harm to the environment or the offence caused the death of or serious injury or illness to a person. (It is our view that Tier 1 prosecutions are likely to be relatively unusual - most previous prosecutions in the Land and Environment Court that have been brought under the EP & A Act have not involved "significant" environmental harm and it is unlikely, save in the case of a breach of fire safety requirements or a fire safety order that a breach of planning law controls would result in death or serious injury.  In circumstances where a Tier 1 prosecution is brought, the proposed legislation provides for maximum penalties of $5 million in the case of a corporation with additional penalties of $50,000 for each day that an offence continues, and a maximum penalty of $1 million for an individual, with additional daily penalties of $10,000 for continuing offences.

The Exposure Draft of the Planning Bill 2013 provides that the next two "tiers" of offences, Tier 2 and Tier 3, would be prescribed specific offences in any new planning legislation that is enacted. As is the cases with offences under the current EP & A Act, Tier 2 and Tier 3 offences would be "strict liability" offences.  In order for these penalties to be brought into play, there would be no requirement for the prosecutor to make a showing of "recklessness" or "negligence".  Tier 2 offences would attract maximum potential penalties of $2 million (slightly less than twice the possible maximum under the EP & A Act) in the case of a corporation with further daily penalties of $20,000 for an ongoing offence, and $500,000 in the case of an individual with continuing penalties of $5,000. The next tier down, Tier 3, would have maximum penalties of $1 million for a corporation with ongoing penalties of $10,000 for continuing offences, and $250,000 for individuals with continuing penalties of $2,500. 

It should be noted by readers that until further planning legislation is actually enacted, it will be unknown what types of offences will attract Tier 2 penalties and which will be subject to the less stringent regime under Tier 3.

Like the present EP & A Act, proceedings for offences will be able to be brought either in the Land and Environment Court or in Local Court. Also, the current statutory maximum penalty of $110,000 will continue to apply in Local Court prosecutions.

Also, very curiously and in our opinion, inexplicably, the draft legislation would continue what we consider to be a strange and indefensible provision of the EP & A Act (section 127) which bars criminal and civil proceedings from being brought in respect of the same matter (even in circumstances where the civil proceedings have been concluded). We have always found it unaccountable that proceedings seeking a penalty cannot be brought where an action seeking an injunction with respect to the same breach of planning legislation is either "still on foot" or has been concluded by the making of an order by the Land and Environment Court. It is our view that a better enforcement regime would enable a regulatory authority both to seek restraint or correction of a breach (through an injunction) and a penalty (to punish the offender and to serve as a deterrent). In our experience, every environmental law in the United States allows both criminal and civil proceedings to be brought in respect of the same "violation of law", and this is a workable and effective framework.  The underlying policy rationale that prevents both civil and criminal enforcement with respect to a breach of planning legislation in NSW remains a mystery to us.

There are a few further features of the new enforcement provisions that are to be introduced to the Parliament that are noteworthy: 

1. A section will be added  dealing with "ancillary offences" which specifies that a person who aids, abets, counsels, procures another person to commit, or conspires to commit, an offence against planning legislation is guilty of an offence (we note that building professionals such as architects, builders and accredited certifiers could face prosecution under these provisions!);

2. A new "Tier 3" offence is created for providing information in connection with a planning matter that the person knows or reasonably ought to know is false and misleading in a material respect. This provision will apply to persons who are applicants for a planning approval and who provide the information themselves in connection with the application and also, very significantly, to persons who are engaged by applicants to provide information in support of an application. Thus, the whole range of experts who provide reports in relation to a planning application - town planners, urban designers, heritage specialists, architects, arborists, structural and geotechnical engineers, could all be potentially liable to criminal prosecution and penalties. While it has always, of course, been essential for experts to be truthful in the material that they give in relation to a development application, the stakes and potential consequences have now been significantly raised!

3. The new legislation would incorporate the provisions of Part 8.3 of the Protection of the Environment Operations Act into NSW planning law. Consequently, in Land and Environment Court prosecutions, the Court will have the power to order convicted offenders to publish notice that they have committed the offence; to correct any environmental harm occasioned by the offence; to pay the investigative costs incurred by the regulatory authority; and to disgorge, as an additional penalty, the amount of any "economic benefit" that the offender has realised as a result of the commission of the offence.

We conclude this post with the observation that the ultimate effectiveness of this new, much more powerful enforcement regime, will depend on its implementation by the courts.  It is our opinion that penalties for environmental offences have historically been very low by international standards (for example, the penalties for pollution offences are far lower in NSW than in American jurisdictions).  We also note that, in our view, the Land and Environment Court has historically been reluctant to impose higher penalties on offenders in response to increases in the statutory maximum penalties provided for in environmental laws. It therefore remains to be seen whether the Court's future judgements will reflect the higher penalty scales in the legislation.

Concordia Pacific Successfully Defends Food Act Prosecution

There can be little doubt that contraventions of food hygiene standards are among the most serious of all "environmental" offences in terms of their potential impact on human health.  While leaks and spills from industrial facilities may despoil waterways, for example, it is the truly unusual case where such an incident causes a detrimental effect on the health of the community. In fact, it is rare for a pollution prosecution in the Land and Environment Court to involve "actual environmental harm" (most likely because comprehensive environmental surveys are not typically carried out following an incident, and thus whatever real harm does occur is not well documented and thus evidence of the "extent of harm" is not presented in Court). 

By contrast, the failure of a food business to comply with the Food Safety Standards can directly cause illness to consumers - ranging from gastrointestinal illness to severe food poisoning that leads to death. For that reason, the Local Courts of New South Wales have quite properly become attuned to the seriousness of offences against the Food Act.  It is not at all uncommon for penalties of several thousand dollars to be imposed for a breach.

However, as is the case with other types of environmental offences, not all breaches of the Food Act "are created equal". A prosecutor (which in the case of Food Act offences is most usually a local council) that does not carefully consider the circumstances surrounding the alleged offence, and does not take into account legitimately well grounded extenuating circumstances, may unhappily learn that the case has not resulted in the desired outcome of a penalty (to punish the offender and to send a message of general deterrence to the regulated community) or an order for recovery of the professional costs that it has incurred in connection with the case. 

The risks associated with the failure to carefully consider all the relevant facts, and to exercise the discretion whether to prosecute in a reasoned and cautious way were demonstrated in a case that we handled on 14 October 2014 in the Downing Centre Local Court.

Our client is the proprietor of a small takeaway food shop in Redfern, NSW. In early August, inspectors visited the premises. They found that a "pre-made" sandwich that was kept in a display case, and a container of cooked chicken pieces that was found on a bench, were not being kept "under temperature control", in other words, the temperature of these foods was higher than 5 degrees Celsius.  On the face of the situation, the discovery of these foods would suggest that clear breaches of the Food Safety Standards had been committed. Indeed, based on their findings, the inspectors proceeded to issue penalty notices to the proprietor.

However, the underlying circumstances demonstrated that the food items that the council inspectors had found on the premises were not going to be sold, and therefore presented no risk of harm to human health. The inspectors had attended the premises at a time when it was preparing to close for the day. The refrigerated display case where the sandwich was kept had been turned off in anticipation of the closing of the store for the day, explaining why the sandwich was not under temperature control. The proprietors were preparing to dispose of the sandwich immediately upon closing of the shop. Furthermore, the chicken pieces had been cooked by a member of the proprietors' family for her own personal consumption, and were also not going to be offered for sale to the public.

Even though these matters were put to the council in writing before the case came before the Local Court, the council nonetheless decided to "bat on" with the prosecution. 

However, when the extenuating circumstances were explained by us to the presiding magistrate, she quickly came to the conclusion that the alleged offences were "trivial" when viewed in context. The magistrate also gave weight to the fact that the food business did not have a record of prior convictions, and that the owners were suffering significant financial hardship due to a sharp decline in trading conditions.  

Consequently, the magistrate saw fit to dismiss the prosecution in its entirety under section 10 of the Crimes (Sentencing Procedure) Act.  Thus, no fine was imposed on the food business, no order for costs was made, and the name of the food business was not listed on the "Name and Shame" register of convicted offenders that is published on the Website of the NSW Food Authority. In short, the prosecution was a complete failure for the council.

The result that we obtained for our client should provide a reminder to councils that are administering the Food Act, and more generally to prosecutors pursuing environmental offences, of the need to be very mindful of mitigating and extenuating circumstances when running enforcement cases. The failure to carry out a studied, nuanced appraisal of the specific factual circumstances that prevail in a case (or to re-consider the prosecutor's position after such circumstances have been brought to its attention) may well cause the case to run aground. 

Prosecution in the Land and Environment Court Runs Completely Off the Rails

A charge brought by Tweed Shire Council against the owner of a caravan park for failure to comply with an order issued to her under the Local Government Act has been dismissed at an early stage of the proceedings by the Land and Environment Court - see Tweed Shire Council v Furlonger, (2014) NSWLEC 156.  The outcome in the case provides an object lesson of the need for councils to exercise care and caution before initiating criminal enforcement proceedings in the Court.

The order that was issued to the defendant alleged that she had breached the Local Government (Manufactured Home Estates, Camping Grounds and Moveable Dwellings) Regulation 2005. It required her to take certain remedial steps, including removal of a wall that was attached to the side of a carport, to remove a wall and window that were attached to the front of a carport, and to remove a portion of a roof over an entrance to an annexe. There is no indication in the Court's judgement as to whether the structures that were the subject of the order were causing any adverse amenity impacts, either on occupants of the caravan park or on neighbouring properties.

The problem for the council in the case was that the defendant produced evidence that she was unaware that the order had been issued to her.  The council attempted to serve the order on the defendant by placing it in a mail box at the caravan park.  While this is not a permissible method of service under the Local Government Act, Justice Biscoe concluded that the defect in service would not have been fatal if the order had actually come to the attention of the defendant. Unfortunately for the council it did not. Justice Biscoe found that the likely reason that the defendant did not learn of the order was that it had been removed from the mail box by an unknown third party. 

Under section 628(5) of the Act, a prosecution for breach of an order cannot be sustained unless it is demonstrated that the defendant has actual notice of the order - a defendant's lack of knowledge of an order is a complete defence to the charge.  Justice Biscoe characterised the policy considerations underlying this principle in the following terms: "...no one should be found guilty of the crime of disobeying a statutory order of which they are unaware". 

There are certainly some peculiar aspects of this case.  First of all, given that the maximum penalty that the offence of failing to comply with the order could attract was only 50 penalty units, or $5,500, it seems odd that the council would have taken these proceedings in the Land and Environment Court, rather than in the Local Court, inasmuch as the Local Court is a jurisdiction that is far better suited to a minor penalty action of this nature. Furthermore, the seemingly minor nature of the remedial actions required by the council order also suggest that the Local Court would have been a more appropriate place for a penalty action to be brought. All in all, a prosecution for this type of offence in the Land and Environment Court appears, on its face, to be somewhat "heavy-handed".

 Secondly, it appears somewhat strange that the council would have commenced proceedings in the Land and Environment Court (with all the attendant expense associated with such a case) unless it had first satisfied itself that the defendant was in fact aware of the order, and that there was thus no likelihood that the defence available under section 628(5) would be brought into play. 

It is our opinion that a cautious council would have ensured that the order was delivered directly to the defendant, and that had this occurred the question of service would not have been left open to chance.  It also appears that it would have been logical and appropriate for the council to communicate with the defendant concerning her alleged non-compliance with the order. By doing so it would have become apparent that the defendant had not become aware of the order, and the mistake of improvidently starting a prosecution in the Court could have been avoided. 

Unfortunately, in this case, the council did not take those simple steps that it could have followed to ensure that the prosecution was well-founded and insulated from the challenge that was brought by the defendant. That failure was fatal to the council's case.

Justice Biscoe's judgement can be found at the following link:  

http://www.caselaw.nsw.gov.au/action/PJUDG?jgmtid=174366. 

Mining Company Fined for Stockpiling Material Outside Approved Project Area

In a decision handed down by Chief Justice Preston of the Land and Environment Court on 25 August 2014, a coal company has been fined $82,000 for placing a large stockpile of processed "interburden" material in a disused rock quarry, in breach of the approval that was granted for an open cut coal mine: See Secretary, Department of Planning and Environment v Boggabri Coal Pty Limited, (2014) NSWLEC 154 (25 August 2014).  The case can be found at the following link:

http://www.caselaw.nsw.gov.au/action/PJUDG?jgmtid=174356

The offence arose from the fact that the quarry where the stockpile was established was located outside the area that was approved for the carrying out of works associated with the mine.  At the time that the original development consent was issued for the mine, the terms of the consent approved the use of a block of land in conjunction with the mining operations, but did not delineate which portions of this land could be used for mine infrastructure. However. a modification to the consent included project layout plans which specified that only a part of the subject land could be utilised. The approved area did not include the inactive rock quarry.  Thus, while there was a lack of clarity in the original approval as to whether the quarry could be affected by further mining operations, the plans approved in conjunction with the amended approval plainly specified that it could not be used.

Although the stockpile that was created at the quarry was quite sizable - it contained 90,000 cubic metres of material - no evidence was produced by the prosecutor that the stockpile had caused, or was likely to cause, harm to the environment (there was no evidence, for example, that any material had been eroded from the stockpile or had been washed into local waterways.  Nonetheless, the fine imposed by Justice Preston was significantly larger than penalties that have been imposed by the Court in other cases where there has been evidence of actual environmental.

It appears that a significant factor in the determination of the penalty in this case was the "harm to the regulatory scheme" of the Environmental Planning and Assessment Act that was occasioned by the use of land for mining support facilities without the prior grant of development approval.  In his analysis of the "objective seriousness of the offence", Chief Justice Preston observed that the unauthorised use of the quarry had deprived the "consent authority" of the opportunity to perform an environmental assessment of the possible impacts of the stockpile, and to impose conditions to prevent or minimise adverse impacts.

The result in this case brings home the point that persons carrying out activities under the authority of an amended development consent - particularly major works like a mine - must use care to ascertain whether the amended approval restricts activities that otherwise could have been lawfully carried out lawfully under an original approval, and must closely adhere to the terms and limitations of the amended approval if they wish to avoid the risk of a penalty action by the regulator.

The Limits of the Court's Jurisdiction Under the Trees (Disputes Between Neighbours) Act

Commissioner Judy Fakes has recently handed down a judgement which re-enforces the principle that the Land and Environment Court does not have jurisdiction to grant relief under the Trees (Disputes Between Neighbours) Act unless most of the trunk of the tree in question is growing on the "respondent's" property. See Frith & anor v Devile & anor, (2014) NSWLEC 1198:

http://www.caselaw.nsw.gov.au/action/PJUDG?jgmtid=174349

Accordingly, in situations where the branches of a tree overhang a neighbouring property, but it cannot be proven through a survey that  most of the tree trunk is on the "respondent's" land, the Court is powerless to order that remedial action be taken with respect to the tree, or that compensation be paid for damages caused by falling branches from the tree.  

The Frith case arose from an application which sought the removal of an Ironbark tree that was growing on an embankment on the side of the respondents' driveway. Part of the canopy of the tree overhung the applicants' property. They alleged that falling branches from the tree had nearly caused injury to persons on their land, and had caused damage to the sarking of the roof of their home.

Following the lodging of the application seeking removal of the tree and the payment of compensation, the Court made directions requiring that a survey be conducted. Under section 4(3) of the Trees Act, the Act does not apply unless the tree that is the subject of an application is situated "wholly or principally on the land" of the property owners from whom a remedy is sought.  The Court has ruled that the location of a tree must be determined "at ground level" (in other words, based on where the trunk is situated) even where branches of the tree overhang the adjacent property.

In the Frith case, the survey that was carried out pursuant to the Court's directions found that more than half of the trunk of the Ironbark tree in question was located on a property that was next to the respondents' land. Because the majority of the tree was not on the respondents' land, Commissioner Fakes concluded that she did not have authority to order any remedial action with respect to the tree or payment of compensation for damage caused by falling branches from the tree. Therefore, the application was dismissed.

The decision in this case illustrates that in cases where trees a growing near a common boundary, prospective applicants would be prudent to commission surveys to confirm that most of the trunk of the offending tree is growing on the land owned by the prospective respondent (in any event, if they do not do so they may nonetheless required to do so before a hearing is held). In situations where it cannot be proven through a survey that the majority of the tree trunk is on the respondent's land, the application will fail, and the applicant will not only be denied a remedy but may even suffer a costs order.

Chief Justice of Land and Environment Court Throws "The Book" At Serial Waste Dumper

The Land and Environment Court has sentenced a defendant, Dib Hanna Abdallah Hanna, to pay some of the largest penalties ever levied in Australia for committing offences involving the illegal dumping of asbestos-containing waste.  In a judgment that was handed down by Chief Justice Preston on 23 September 2014, Mr Hanna was fined $225,000 for four separate offences that he committed on 5 April 2012. He was also ordered to publish prominent advertisements giving notice of the offences both in the Sydney Morning Herald and in the local newspapers circulating in the area where the offences were committed. A news article about the case can be found at the following link:  http://www.smh.com.au/nsw/serial-offender-fined-225000-for-illegally-dumping-asbestos-waste-20140923-10kpko.html and the Court's judgment in the case, Bankstown City Council v Hanna, (2014) NSWLEC 152 can be found  here:

http://www.caselaw.nsw.gov.au/action/PJUDG?jgmtid=174257

Although the fines that were meted out to Mr Hanna were undoubtedly very large by Australian standards, it is our view that they were actually low by international standards (similar conduct would have garnered much larger fines in US jurisdictions). The penalties were also substantially less than the maximum that could have been imposed under the applicable legislation (the Protection of the Environment Operations Act)  of $1 million.  In view of the defendant's lengthy record of prior offences, and the fact that the dumping incidents with which he was charged took place after orders were made by the Land and Environment Court restraining him from transporting waste to any location other than a properly approved disposal site, it is our observation that this defendant could surely have been dealt with even more severely, and that a more stringent sentence would not have been disproportionate to the conduct involved in this prosecution.

The conduct that gave rise to this case involved the transportation of truckloads of asbestos containing building waste both to a privately owned property and to a public park located in the "Picnic Point" area of Bankstown Council's local government area.  The defendant dumped 8 loads of material, comprising eighty tonnes  of waste, onto the private land, and 10 tonnes of waste onto the public park. The stockpiles of waste that were deposited both on the private land and the public park contained both chrysotile and amosite asbestos.

Although Chief Justice Preston found that the waste dumping incidents had caused substantial environmental harm as well as financial loss both to the owners of the private land and the Council which maintained the public park where the waste was dumped (for removal of the waste stockpiles); that the offences had been premeditated, intentional and committed with knowledge that the dumping activity was illegal; and that the defendant illegally dumped the waste in order to achieve financial gain by avoiding landfill tipping fees, Chief Justice Preston characterised the offences as being only of "medium objective gravity".

It is our opinion that these incidents, involving the purposeful and knowing dumping of asbestos containing waste both on a public park and on the private property of innocent landowners could easily have been classified by the Court as an offence falling on the higher end of the range of objective seriousness, and not just of "medium" gravity (and thus deserving of even greater penalties).

Similarly, it is our perspective that this particular defendant's lengthy record of previous offences was an "aggravating circumstance" that could well have justified even more serious penalties.  Chief Justice Preston's judgement recites that the defendant's prior record of waste dumping offences included 5 prior convictions in the Local Courts of NSW; 4 prior convictions in the Land and Environment Court; and a previous finding of contempt of court for breach of the restraining order (the contempt proceedings involved the same dumping incidents that gave rise to this prosecution against Mr Hanna). Furthermore, Chief Justice Preston's judgement recites that the defendant did not pay the majority of the fines that were imposed as a result of those previous prosecutions. Again, it is our opinion that this virtual "laundry list" of previous environmental offences would have supported an exceptionally large penalty.

While it could surely be argued that the penalties imposed in this case could and should have been higher, there can be no doubt that they are quite severe by the standards of previous environmental prosecutions in NSW and Australia. Undoubtedly, Chief Justice Preston's judgement should send a loud and unmistakable message that persons who engage in multiple incidents of dumping asbestos containing waste will receive large penalties. Indeed, the defendant was fortuitously "lucky" that the offences in this case were committed prior to the time that the POEO was amended to provide for the possibility of imprisonment for a person who commits a "waste offence" (waste offences include illegal dumping) within 5 years of being convicted of an earlier offence.  Clearly, a future defendant with a record of flagrant noncompliance with the law such as the defendant in this case will be at grave risk of jail time.

Claims of Duress Not Sufficient to Excuse Defendant of Responsibility for Waste Offences

In a judgement that was handed down by Justice Craig on 28 August 2014 (Environment Protection Authority v Ashmore (2014) NSWLEC 136. a company director has been convicted of two "waste" offences in the Land and Environment Court in very unusual circumstances: namely that he was allegedly "pressured" into committing the offences by implied threats of violence by a business associate. To our knowledge, this is the first case where claims of duress have been put forward as a mitigating factor in an environmental prosecution in NSW. Although the Court found the defendant's assertions that he was in fear that either he or members of his family might be harmed if he did not comply with his business associate's demands that he act illegally, these claims were not sufficient in the end to enable the defendant to escape having a criminal conviction or the imposition of significant monetary penalties.

The background of the case was that the defendant was the director of two related companies, one of which was involved in civil engineering works and the other in the transport of waste. The civil engineering company was awarded a contract calling for the bulk excavation of asbestos contaminated soil at a refinery. Under the terms of the contract, the civil engineering company was also responsible for supervising the loading of trucks to transport the waste to a disposal site. The contract contained conditions requiring the company to comply with all legislation regarding the disposal of asbestos, and to provide copies of waste receipts to confirm that the material had been taken to a properly licensed disposal site.

On the evening before the excavation of the asbestos-contaminated material was scheduled to begin, the defendant had a telephone conversation with his business associate during which the associate informed him that drivers of the trucks carrying the waste material would be instructed to transport the waste to a rural property, and that none of the material would be taken to a licensed landfill. When the defendant told his associate that the proposed course of action would be "stupid", the associate made statements to him that he said caused him to fear that there would be retribution against him and his family if he did not go along.

In the next several weeks,  nearly 4,000 tonnes of material that originated on the refinery site was transported to the unlicensed rural property. The defendant asserted that he did not take steps to prevent the unlawful transport of the waste due to his fear of the business associate. 

Subsequently, the business associate provided false weighbridge dockets to the defendant which stated that the material that had been excavated from the refinery site had been taken to a properly licensed waste facility. The defendant forwarded these false dockets on to the company that had engaged his own company to excavate the waste. The falsity of these dockets was quickly discovered, and the defendant's company was thereafter barred from carrying out any further work at the refinery site.

The charges that were brought by the EPA were filed directly against the defendant, and not his company, under the so-called "executive liability" provisions of the Protection of the Environment Operations Act.
These provisions, which are contained in section 169 of the POEO, specify that whenever a corporation commits an offence against the Act,, the directors of the company will be taken also to have contravened the Act unless the director is able to establish that she or he was not in a position to influence the conduct of the company or that she or he "used all due diligence to prevent the contravention". The defendant was charged with a breach of section 143 of the POEO for permitting waste to be transported to a place that could not lawfully be used as a waste facility, and with an offence against section 144AA(1) for providing information to another person about the waste that was  "false in a material respect" (in this case, sending the false dockets which stated that the waste had been taken to a licensed waste disposal site.

Despite the fact that Justice Craig was persuaded that the defendant had committed the offences due to a genuine sense of fear that he and his family might be harmed by the business associate, he did not find that the overall circumstances of the case provided a basis for exonerating the defendant entirely. Accordingly, Justice Craig rejected the defendant's suggestion that the charges should be dismissed under section 10 of the Crimes (Sentencing Procedure) Act without conviction or penalty. Justice Craig indicated that he might have given greater weight to the allegations of intimidatory conduct on the part of the business associate if the defendant had disclosed that conduct to the EPA at an early stage when he had the opportunity to do so (during initial telephone calls from the EPA when he was questioned about the circumstances concerning the transport of the waste to the unlicensed rural property) or immediately to the police. Thus, instead of dismissing the charges entirely, Justice Craig saw fit to impose penalties of $36,000 against the defendant for the two offences.

The plain moral that is brought home by Justice Craig''s judgement is that a person who is coerced into committing an environmental offence through express or implied threats of violence may nonetheless be held responsible for the offence unless the person promptly tells the EPA and the NSW Police about the circumstances.  This may appear to be a high expectation to place upon someone who is in a state of fear, but it is clearly an expectation that must be met if the person who has been forced into committing an environmental rime hopes to avoid prosecution and punishment.

Citizens' Group Prevents State From Removing Healthy Fig Trees From School Grounds

A citizens' organisation, "Save the Trees Group" has successfully sued the State of NSW in the Land and Environment Court to prevent the removal of 9 fig trees located on the grounds of the Alstonville Primary School in Ballina Shire Council.  The judgments of the Court in the case, Cooke v State of New South Wales (2014) NSWLEC 82 and Cooke v State of New South Wales (No.2) NSWLEC 148 can be found on the Court's Website at the following links: 

http://www.caselaw.nsw.gov.au/action/PJUDG?jgmtid=172280  and

http://www.caselaw.nsw.gov.au/action/PJUDG?jgmtid=174049

The history of the case was that the trees had been present on the school grounds in 1945, when the president of Save the Trees, Mr Ian Cooke, was a student. At that time, the trees were all taller than 6 metres, and were large enough for children to climb. 

Many years later, in February 2014, a branch from one of the trees fell onto the grounds of a neighbouring school, without hurting anyone. Although an arborist's report that was commissioned by the State concluded that each of the trees was in good health, it nonetheless found that there was a 1:62,000 risk that the trees could cause injury, and therefore concluded that they were inappropriate for retention on the school grounds.  
The State thus sought to remove the trees without consent from the Council, under the authority of clause 31 of the State Environmental Planning Policy (Infrastructure) 2007.  This clause of the SEPP provides that removal or lopping of a tree is exempt from the requirement for development consent if the tree poses a risk to human health or safety at a school.

After the report by the State's arborist was released, the members of Save the Trees wrote to the State opposing the removal of the trees and seeking permission for an independent arborist to enter the school grounds to assess the trees. The State did not respond to this letter, nor did it respond to a subsequent letter which asked the State to give an undertaking that it would not remove the trees until the independent arborist had completed an inspection. After these letters were sent, the president of Save the Trees, Mr Cooke, attended the school and observed that contractors were making preparations to cut the trees down. Save the Trees then approached the Court on an urgent basis and obtained a temporary injunction to restrain the State from proceeding with the removal of the trees.

Following the grant of the temporary injunction, an arborist engaged by Save the Trees carried out an inspection of the trees and concluded that the fig trees on the school grounds did not in fact pose a risk to either human health or safety. The State accepted the conclusions of Save the Trees' arborist, and thus conceded that removal of the trees would not constitute exempt development under the SEPP and that it did not otherwise have a required development consent or permit from the council to go forward with the removal of the trees.

Accordingly, the State essentially conceded that Save the Trees was entitled to an injunction preventing it from removing any of the trees unless and until it had received the necessary consent from the council. Save the Trees was also successful in recovering a portion of the legal costs that it had incurred in the proceedings.

The result in this case demonstrates that "David" can sometimes "beat Goliath" and that a vigilant citizens' organisation can effectively use the legal process to save a valuable and irreplaceable environmental resource.  The case also indicates that statistical "guesstimates" concerning the level of risk posed by trees can be "trumped" by careful, first-hand observations concerning the health and condition of the trees in question.

Court Affirms Large Penalty For Illegal Building Works and Defiance Of Stop Work Order

The Land and Environment Court has upheld substantial fines of $95,000 that were imposed against a family trust company in the Burwood Local Court. The fines that were levied consisted of two elements - $35,000 for carrying out building works without the benefit of either a development consent or a complying development certificate, and $60,000 for repeatedly disobeying a "Stop Work" Order that was issued by the Council. The outcome in this case, Alarmon Pty Limited v City of Ryde Council, (2014)             NSWLEC 100, provides a cautionary lesson that people who choose to disregard compliance orders issued by local government authorities do so at their peril, and run the risk of very significant sanctions.

The circumstances of the case were that the family trust company owned a residential property that was occupied by the director of the company and his family. In late 2012 and early 2013, major renovation works were carried out without the benefit of development approval from the Council, including demolition of the rear of the house, an attached covered area, an outbuilding and a detached garage, extension of the rear of the house for living and dining areas, and construction of a new addition which included a rumpus room and three bedrooms at the first floor level.  The unauthorised building work attracted complaint to the council by local residents, who described them as an "eyesore" and a "monstrousity".  The Council issued an order in response to the complaints which required the defendant company to immediately cease all building works. Nonetheless, on several occasions after the Stop Work order was issued, observations were made that the building works were continuing. 

The explanation given by the director of the defendant company for continuing building works in disregard of the order was that he felt that it was necessary to carry out the works to protect the house from exposure to the elements and against the risk of theft. 

In his judgement affirming the sentence of the Local Court, Justice Sheehan stated that he agreed with the local court magistrate's conclusion that the defendant's behaviour in disregarding the Stop Work order for a period of 6 weeks amounted to a "deliberate disregard of the law".  Justice Sheehan found that the case called both for "general deterrence" and "serious punishment" and noted that he would have been inclined to impose even more substantial penalties had they been sought by the prosecuting council.

The result in this case shows that defendants who are prosecuted for breaches of the Environmental Planning and Assessment Act in the Local Court rather than in the Land and Environment Court may nevertheless receive substantial penalties. Where the circumstances of the case are sufficiently serious, as they were in this case, an appeal to the LEC against the severity of sentence may very well not be successful. A severity appeal to the LEC may thus compound the overall financial sanction that a defendant may suffer, as an unsuccessful defendant is virtually certain to pay the Council's additional legal costs associated with the appeal.

Who Should Pay? The Court's "Tree Principle"

Litigation under the Trees (Disputes Between Neighbours) Act 2006 has become an increasingly significant part of the Land and Environment Court's caseload in the years since the Act came into force. One of the issues that the Court has had to deal with is deciding who should bear the costs of removing, or undertaking remedial work to trees that is found to be necessary to prevent property damage or risk of personal injury. This question is particularly problematic in situations where new construction has been carried out on land adjacent to another property where pre-existing trees have reached a stage of advanced growth.

The Court has adopted a "tree dispute principle" which it relies upon to guide its decision-making in such cases. Persons who are considering proceedings under the Act need to be mindful of this principle, which was enunciated in the case of Black v Johnson (No 2) (2007) NSWLEC 513. A link this judgment is at:

 http://www.lawlink.nsw.gov.au/lecjudgments/2007nswlec.nsf/00000000000000000000000000000000/93c135bdf4f5abdbca257338000f1f9d?opendocument

The case arose from a circumstance where new building works had been carried out under the authority of a development consent that was issued by Lake Macquarie Council.  Four large Spotted Gum trees had been established near the common boundary.  The Court (composed of Senior Commissioner Moore and Acting Commissioner Thyer) made findings that branches from one of the trees had become detached and had caused damage to the roof tiles on the new dwelling. The Court was therefore satisfied that the precondition for the making of an order requiring the removal of the tree under section 10(2)(a) of the Act had been met, namely that the tree had caused damage to the applicant's property.

With this finding apparently in mind, the Court stated the first prong of the tree dispute principle, namely, that the fact that a tree has been in place prior to new construction will not prevent the Court from making an order requiring the tree to be removed,  or for remedial action (pruning of branches) to be taken in circumstances where the tree has caused property damage or presents a risk of such damage or of injury to a person. 

The second prong to he tree dispute principle that was announced in Black v Johnson deals with how responsibility for undertaking or paying for the cost of tree removal or remedial action should be allocated.  

The Court stated that among the factors to be considered are whether the tree in question has been planted or "self-sown", the type of tree that has been planted, and the suitability of the location where the tree has been planted. Although the Court did not discuss or explain how these factors will be applied in Black v Johnson, it seems apparent that responsibility is less likely to be apportioned to the owner of neighbouring land when a tree is self-sown. Conversely, it is also apparent that there is a greater likelihood that the obligation for removal or remedial action will be imposed on the owner of the land where the tree is growing in cases where the species of trees that have been planted are ones that are likely either to drop branches or be toppled in storm events, and where the trees have been planted in proximity to the common boundary.

The last prong of the tree dispute principle requires the Court to examine the design of the new construction. In cases where the new structure could have been situated at a location where there would not have been a risk of property damage or personal injury from the pre-existing trees on the neighbouring property, it is less likely, under the tree principle, that the owner of the adjacent property where the trees are growing will be ordered to pay the costs of tree removal or other remedial action.

In the particular circumstances that existed in Black v Johnson, the Court found that the new dwelling that had been damaged could have been located 3 metres further forward - in other words, away from the common boundary. However, the Court determined that even if this change to the design of the new dwelling had been made, there would have been risk of injury to persons in the courtyard (as the courtyard would have been located where a branch from the tree that was the subject of the case had fallen). On the basis of this finding, the Court made orders requiring the owner of the property where the pre-existing tree was growing to remove the tree.

The guidance to be drawn from the tree dispute principle that was stated in Black v Johnson is that the owners of newly-developed properties will be unlikely to succeed in actions under the Act where there are feasible alternative design solutions that will place the new building sufficiently far from pre-existing trees to avoid the risk of property damage or risk of injury to persons.

Court Makes Orders Allowing Council to Remove Accumulated Waste From Property.....But

The problem of "waste hoarders" - people who collect and accumulate all manner of general rubbish in both the yards and indoor areas of dwelling houses - is one that seems to plague virtually every local council. Not only is such waste hoarding unsightly, but it also carries with it significant public health issues as the waste piles can attract rats and other vermin; are malodorous; and can pose a fire safety risk to neighbouring dwellings.

Councils have authority under section 124 of the Local Government Act to issue orders to require the owners or occupants of residential properties to remove piles of waste material from their land and to refrain from depositing additional waste. Additionally, councils can bring proceedings in the Land and Environment Court to enforce these orders. While it remains an open question as to whether these existing legal remedies are adequate to address the problems posed by waste hoarding, they are presently the only tools that are available.

Perhaps no case epitomises the difficulties that councils encounter when trying to deal with waste hoarding than the matter of Waverley Council v Bobolas (No. 3), 2014 NSWLEC 16.  The Land and Environment Court's Website reveals that there have been a lengthy series of proceedings, dating back nearly 10 years, to 2005, in which the Council has sought to enforce orders requiring the owners of a property in Bondi to remove accumulated waste. 

The recent developments in this case have been extensively reported in the news media (see for example the articles in the Daily Telegraph at the following links):

http://www.dailytelegraph.com.au/news/nsw/mary-bobolas-arrested-during-bondi-cleanup-after-allegedly-hitting-and-spitting-on-police/story-fni0cx12-1226883441877

and 

http://www.dailytelegraph.com.au/news/nsw/bondis-famous-hoarders-the-bobolas-have-started-to-pile-up-rubbish-just-weeks-after-cleanup/story-fni0cx12-1226948403087

These articles report that there has been a seemingly endless cycle of the Council's getting orders from the Court either to require the owners to clean up the property, or to allow the Council to gain access to the property in order to carry out the work required by the clean up orders. The articles indicate that after each round of clean up, the same pattern of renewed accumulation of waste material repeats itself. According to the Telegraph articles, Waverley Council has spent more than $350,000 in legal fees and clean up costs to address the issues at the property.

In these latest proceedings, presided over by Justice Biscoe, the Court made findings that the Council had served notice of the latest clean up order that was given under the Local Government Act on the owner and that notwithstanding that order, the piles of waste had not only remained on the property but had increased in size; and that the waste was putrid and offensive smelling and posed a health risk to the occupants of the dwelling and to residents of neighbouring properties. Consequently, Justice Biscoe saw fit to issue an order under section 678 of the Local Government Act allowing the Council to enter the property and to remove the accumulations of waste. 

Justice Biscoe's judgment in the case can be found here:

http://www.caselaw.nsw.gov.au/action/PJUDG?jgmtid=169981


The Daily Telegraph reports indicate state that shortly after the clean up was completed under the authority of the orders made by Justice Biscoe, the owners had begun yet again to deposit large quantities of waste in the outdoor areas of the property. This saga thus appears to be dragging on ad infinitum (and surely, where the unfortunate neighbours of this property are concerned, ad nauseum!). 

As the Bobolas case illustrates, councils that are dealing with people who persist in hoarding waste on residential properties have no alternative save to repeatedly issue clean up orders under the Local Government Act, and to return to the Land and Environment Court with renewed applications to enforce those orders.  This process can be protracted and expensive, as it is often difficult for councils to effect service of the original clean up orders that are issued under the Local Government Act or of the papers associated with the proceedings to enforce those orders in the Court. Therefore, numerous appearances may be required in the Court simply in order to obtain leave to effect "substituted service" on the responsible persons (by posting notice of the orders or Court proceedings in a prominent location at the affected property).

In the end, the persons responsible for depositing large waste piles on their own properties often do not have the werewithal, either financially or from a "mental health" standpoint, to undertake a clean up themselves. Thus it is not uncommon for councils finally reach the point (as happened in the Bobolas case) where they have no alternative but to seek orders from the Court allowing them to undertake the necessary clean up work directly. 

Operator of Quarry and Company Directors Convicted of Providing Misleading Annual Return to the EPA

The operator of a "hard rock" quarry located at Corindi Beach on the north coast of NSW near Coffs Harbour, Wyanga Holdings Pty Ltd, as well as the company's directors, have been convicted in the Land and Environment Court for breaching the Protection of the Environment Operations Act by failing to disclose on their Annual Return to the EPA that the company had exceeded production limits imposed in its Environment Protection Licence.  The company directors were held personally liable for the offence due to the application of section 169(1) of the POEO, which provides that when a corporation contravenes the Act, the directors of the company are also taken to have committed the same breach.  

The circumstances of the offence were that the company submitted an Annual Return for the 12 month period from 1 February 2011 - 30 January 2012 which did not acknowledge that a licence condition limiting the quantity of material that could be lawfully extracted at the quarry to 50,000 tonnnes a year had been breached.  The actual level of production during that period was actually nearly twice that amount, more than 96,000 tonnes. 

The company and the directors were prosecuted under section 66(2) of the POEO. This section of the Act provides that the holder of a licence that provides information to the EPA under the conditions of an environment protection licence that is false or misleading in a material respect is guilty of an offence and is subject to substantial penalties ($1 million in the case of a corporation and $250,000 in the case of an individual).

Although the company and its directors pleaded not guilty to the charge, they did not contend either that the company had not exceeded the production quote imposed by the condition of its environment protection licence, nor did they contend that they had in fact disclosed the exceedence in their Annual Return. Instead, they advanced submissions to the Court that the prohibition in section 66(2) of the Act against submitting false or misleading information to the EPA extends only to information of the kind that is identified in section 66(1) - namely, information relating to monitoring.

The Court, per Justice Craig, rejected the defendants' proposed interpretation of section 66(2) of the Act, finding that there is no language in section 66(2) which limits or qualifies the prohibition against submitting false or misleading information only to the type of monitoring information that is required by section 66(1). The Court's decision thus makes clear that providing any false or misleading information that is required to be submitted under the condition of an environment protection licence may give rise to criminal sanctions.

The Court's decision,  Environment Protection Authority v Wyanga Holdings Pty Ltd; Environment Protection Authority v Cauchi (2014) NSWLEC 68 can be found at the following link:

http://www.caselaw.nsw.gov.au/action/pjudg?jgmtid=171862

It appears that this prosecution is only one aspect of an ongoing legal battle between the NSW EPA and Wyanga concerning exceedence of the quarry's production limits. News articles have reported that the EPA suspended the quarry's environment protection over additional exceedences of the production quota in August 2013, effectively shutting the quarry down (see http://www.coffscoastadvocate.com.au/news/epa-shuts-corindi-quarry-after-alleged-over-limit-/2004963/). An article also indicates that the company appealed against the licence suspension to the Land and Environment Court, but that the appeal was subsequently withdrawn before the case was heard: http://www.dailyexaminer.com.au/news/quarry-ends-dispute/2106364/

The Court's Website has not yet published a judgment on sentence regarding this prosecution so the fines imposed for this offence are not yet known.  In a prosecution that was brought by the NSW Department of Planning for a related offence - exceeding the production quote imposed by a condition of a development approval granted under the Environmental Planning and Assessment Act - Minister for Planning v Hunter Quarries Pty Ltd [2010] NSWLEC 246 the defendant was fined $70,000.  Refer to http://www.lawlink.nsw.gov.au/lecjudgments/2010nswlec.nsf/2010nswlec.nsf/WebView2/101D7098E2196DB7CA2577E700065236?OpenDocument.

It is therefore clear that the substantive offence of breaching the condition of an approval imposing a production limit can attract very substantial penalties. It will be interesting to learn how an offence involving the failure to truthfully disclose such a breach to the regulatory authorities will be dealt with by the Court.

Council Penalised for Accidental Spill of Landfill Leachate

The Land and Environment Court has ordered the Greater Taree Council to pay a contribution of $37,500 (in lieu of penalties) towards a bushland regeneration project as punishment for a pollution incident that occurred at the Council's solid waste landfill in April 2012.  The sentence, which was imposed by Justice Sheehan, also required the Council to publish notice of the offence in the newspaper that circulates in the Council's local government area, and directed the Council to pay the EPA's investigative and legal costs associated with the prosecution of nearly $60,000. 

The Court's judgment is reported at Environment Protection Authority v Greater Taree City Council [2014] NSWLEC 88 and can be found at the following link: 

http://www.caselaw.nsw.gov.au/action/PJUDG?jgmtid=172420

The proceedings against the Council were brought in response to a spill from a pipeline that carried leachate from collection ponds at the landfill to a local sewage treatment plant.  Even though the landfill itself was operated by a private contractor, the Council was named as the sole defendant in the prosecution because under the terms of the contract the Council remained responsible for management of the pipeline.

The decision in this case is of particular interest because the Council received limited mitigation of the amount of the monetary contribution it was required to make in lieu of penalties even though it had conducted itself in virtually all respects as a "model defendant". Justice Sheehan's judgment recites that the only factor for which a discount on penalty was given was the Council's early plea of guilty. Ordinarily, the Court takes into account matters such as the defendant's prior record of environmental compliance,  the measures taken to limit the environmental harm associated with a pollution spill and to prevent a recurrence, as well as the defendant's cooperation with the prosecutor and expression of contrition and remorse. However, it appears from Justice Sheehan's judgment that these factors were not given any particular weight in the determination of the ultimate punishment.

The judgment in the case certainly suggests that the Council conducted itself in an unusual and exemplary manner following the discovery of the pollution incident.  Approximately 45 tanker truck loads of contaminated water, amounting to more than half a million litres, was pumped from the receiving streams and transported back to leachate collection ponds at the landfill. The Council also implemented a number of measures to prevent a similar breach from happening in the future, including planning for the design and construction of a new leachate pipeline to be located away from any watercourses and implementing comprehensive measures to monitor the existing pipeline to enable early detection and response to any possible future pipeline leaks. Furthermore, the Court's judgment indicates that the Council arranged for several senior officers to attend the hearing on sentence that was held by the Court to confirm the Council's contrition with respect to the incident, and an affidavit was also prepared by the Council's general manager which attested to the Council's sincere and genuine regret and apology. Additionally, Justice Sheehan stated that he accepted that the Council was a defendant that had an "excellent corporate character".

It has been the Court's normal practice to give weight to such mitigating factors, to balance them against objective sentencing factors including the level of environmental harm caused by an incident as well as the degree to which the incident could have been foreseen, and then to arrive at a conclusion concerning the appropriate penalty through a process of "instinctive synthesis" (in other words, giving consideration to all relevant matters and then reaching a conclusion concerning the just and fair disposition of the case).  

It is not apparent from Justice Sheehan's judgment why the Court did not see fit to give greater importance to the mitigating factors which were present in this case, especially in view of the fact that the level of environmental harm occasioned by the spill also appeared to be relatively low. 

Nonetheless, it is our view that the approach adopted by the Council in this case, both in its response to the pollution incident and in dealing with the proceedings before the Court is one that should commend itself and which offers an example of a course of conduct that may lead to more lenient treatment by the Court when it comes to fines.

Owner-Builder Winds Up In Hot Water For Carrying Out Unauthorised Building Works

The owner/builder of a house in Croydon Park has been fined nearly $10,000 and ordered to pay the Council's prosecution costs for failing to comply with the requirements of a development consent issued by Burwood Council. The judgment of Chief Justice Preston of the Land and Environment Court imposing sentence, Burwood Council v Pratelli (2014) NSWLEC 28, can be found at the following link:

http://www.caselaw.nsw.gov.au/action/pjudg?jgmtid=170522

The charges against the defendant alleged that she had not complied with two conditions of the development consent that had been granted to her by the Council, namely that she build the house in accordance with the plans that had been approved by the Council, and that she had failed to arrange for the building works to be inspected by an accredited private certifier at critical stages of the construction works.

The Council's main concern was that the defendant had carried out unapproved works to the "subfloor area". The Council's inspections revealed numerous aspects of non-compliance, including that the subfloor area had been excavated to a greater depth than allowed, thereby increasing the ceiling height of this part of the house; that windows had been installed to the subfloor space; that partitions had been constructed in the subfloor area, creating two rooms; and that access to the subfloor space had been created by the relocation of an internal staircase and by increasing the height of a door on an external wall of the house. 

Following the Council's discovery of the breaches of the development consent, the defendant undertook remedial measures, which included bricking up the windows that had been installed in the wall of the subfloor area and removing doors that provided access to the area. 

The factors taken into account by the Chief Justice in imposing sentence included the need to publicly denounce the defendant's conduct, to hold her accountable for her actions and to deter others from carrying out building works otherwise than in accordance with the requirements of a consent. In mitigation of the penalty, the Court found that the defendant was contrite and remorseful and thus unlikely to re-offend, that she had taken steps to rectify the unlawful works, and that she had agreed to pay the prosecutor's costs.

In passing judgment on the matter, Chief Justice Preston found that the circumstances of the case warranted a penalty of $13,000, which was reduced by 25%, to $9,750, to take account of the defendant's plea of guilty.

It is worthy of note that the judgment on sentence does not include any discussion concerning how the failure of the defendant to arrange for critical stage inspections was accounted for in the penalty, if at all. 

The decision offers a cautionary tale to owner/builders, namely that seemingly small-scale breaches of the provisions of a development approval can attract substantial fines and requirements to pay Council's legal costs, even in instances where the owner/builder has accepted responsibility for the offence and has undertaken remedial actions.