Burwood Council v Alam

[2025] NSWLEC 2

Land and Environment Court

New South Wales

Medium Neutral Citation:

Burwood Council v Alam [2025] NSWLEC 2

Hearing dates:

16 December 2024

Date of orders:

11 February 2025

Decision date:

11 February 2025

Jurisdiction:

Class 5

Before:

Duggan J

Decision:

See orders at [106]-[108]

Catchwords:

SENTENCING – environmental offences – s 4.2(1)(b) Environmental Planning and Assessment Act 1979 – development otherwise than in accordance with a development consent – strict liability offence – objective seriousness – heritage impacts – subjective circumstances – consistency in decision making – legal costs – determination of sentence – totality – publication order

Legislation Cited:

Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A, 22, 23

Criminal Procedure Act 1986 (NSW), s 257B

Environmental Planning and Assessment Act 1979 (NSW), ss 3.1, 4.2, 9.35, 9.53, 9.56, Sch 5, Part 1, Item 10

Fines Act 1996 (NSW), s 6

Protection of the Environment Operations Act 1997 (NSW), s 250, Pt 8.3

Burwood Local Environment Plan 2012

Cases Cited:

ACE Demolition & Excavation Pty Ltd v Environment Protection Authority (2024) 260 LGERA 358; [2024] NSWCCA 4

Alam v Burwood Council [2023] NSWLEC 1180

Axer Pty Ltd v Environment Protection Authority (1993) 113 LGERA 357

Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683; (1993) 82 LGERA 21

Chief Executive Office of Environment and Heritage v Clarence Valley Council (2018) 236 LGERA 291; [2018] NSWLEC 205

Cooper v Coffs Harbour City Council (1997) 97 LGERA 125; (1997) 98 A Crim R 340

Environment Protection Authority v Baiada Poultry Pty Ltd (2008) 163 LGERA 71; [2008] NSWLEC 280

Environment Protection Authority v Barnes [2006] NSWCCA 246

Environment Protection Authority v Sydney Water Corporation [2019] NSWLEC 100

Environment Protection Authority v Waste Recycling and Processing Corporation (2006) 148 LGERA 299; [2006] NSWLEC 419

Great Lakes Council v Spalding [2011] NSWLEC 257

Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25

Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57

Plath v Rawson (2009) 170 LGERA 253; [2009] NSWLEC 178

R v Visconti [1982] 2 NSWLR 104

Category:

Sentence

Parties:

Burwood Council (Prosecutor)
Radwan Alam (Defendant)

Representation:

Counsel:
P English (Prosecutor)
B Anniwell (Defendant)

Solicitors:
Houston Dearn O’Connor Lawyers (Prosecutor)
Mills Oakley (Defendant)

File Number(s):

2024/00216164 and 2024/00216165

Publication restriction:

No

JUDGMENT

Nature of proceedings

1. In this matter, Radwan Alam (the Defendant) has pleaded guilty to two charges that he breached s 4.2(1)(b) of the Environmental Planning and Assessment Act 1979 (NSW) (EP&A Act) in that he carried out development otherwise than in accordance with a development consent. The two charges relate to demolition works undertaken by the Defendant at a residential premise in Burwood NSW.

2. These proceedings are to sentence the Defendant with respect to the two offences.

Facts

3. The facts relevant to this sentencing proceeding are drawn from the agreed facts.

The Land

4. On 23 November 2020, the Defendant became the registered proprietor of Lot 2 DP 364142 located at 48 Fitzroy Street, Burwood NSW 2134 (the Land). At or around this time, the dwelling on the Land was in the form depicted in the image below (the Dwelling):

5. The Dwelling, described as a Victorian cottage, is listed as an item of local heritage significance under Pt 1 of Sch 5 of the Burwood Local Environment Plan 2012 (the LEP). The Land is zoned R2 Low Density Residential under the LEP.

Development Application and Consent

6. On or around 15 February 2021, ES Design lodged a development application with Burwood Council (the Council or the Prosecutor) in respect of the Land on behalf of the Defendant, with various documents including, inter alia, architectural plans, a Statement of Environment Effects and Heritage Impact Statement (HIS).

7. On 13 September 2021, Council granted development consent 11/2021 in respect of the Land, for the “[p]artial demolition of rear ground floor, internal alterations to existing two storey dwelling and removal of trees” (the Consent).

8. Condition 1 of the Consent, under the heading “Conditions of Approval”, provided as follows:

(1)   The development being carried out in accordance with the approved stamped Architectural Plans, Schedule of External Materials, Colours and Finishes, Landscape Plans, Tree Protection Plan and Specifications, Arboricultural Impact Assessment Report and Elemental Cost Estimate Report submitted on 28/07/2021, Statement of Environmental Effects submitted on 4/03/2021, Heritage Impact Statement and Waste Management Plan submitted on 15/02/2021, except where amended by the conditions of consent.

9. Conditions 6-7 of the Consent, under the heading “HERITAGE”, provided as follows (with emphasis in original):

(6)   A Schedule of Conservation Works detailing all proposed works to the building fabric, including the manner of change, materials, finishes, etc shall be submitted to Council for approval, prior to the issuing of a Construction Certificate. The Schedule shall include such matters as changes to the proposed bathroom floor/s, painting, any changes to windows/doors and alterations or removal of other joinery. The Schedule should identify where original fabric is to be removed and how that fabric is to be salvaged and/or stored. The Schedule must also identify any repair and/or maintenance required on the building (including roof tiles). Identified repairs/maintenance is required to be undertaken as part of the development of the property. The Schedule of Conservation Works is to also include elements relating to original fabric raised within "Section 6.1 - Design Recommendations" of the submitted Heritage Impact Statement (Project Code P0027288, Report Number 02 Final Copy 02.02.2021) prepared by Urbis Pty Ltd dated February 2021.

(7)   Work to the exterior and interior shall be undertaken under the guidance of a suitably qualified Heritage professional. All work shall be undertaken in accordance with the approved Schedule of Conservation Works. The work shall be inspected by a qualified heritage professional/consultant or Burwood Council.

Demolition Plan

10. The Consent included an approved demolition plan (Demolition Plan, 20069-02, dated 20 July 2021) (the Demolition Plan). The Demolition Plan is depicted below:

11. The Demolition Plan was also included in the HIS.

Stop Work Order

12. In around mid-2021, Council became aware that unauthorised internal building works to certain walls and ceilings of the Dwelling on the Land had been carried out. The charges to which the Defendant has pleaded guilty does not concern this work.

13. On 11 August 2021, Council issued a Development Control Order (DCO) to Vemcorp Pty Ltd, the name of which appeared on hoarding then situated on the Land. The DCO was in the following terms (with emphasis in original):

Stop all work immediately being carried out at the above mentioned premises.

14. In late 2021, the DCO was lifted and work on the Land was permitted to continue on the basis that remediation to the affected internal walls and ceiling components would be undertaken during the construction process, with remediation of the affected internal areas to be undertaken in accordance with the schedule of conservations works that was to be lodged for Council's approval in accordance with condition 6 of the Consent.

Construction Certificate

15. On 19 January 2022, the Defendant applied for a construction certificate to be issued in respect of the development permitted by the Consent. The building works were described as “partial demolition of rear ground floor, internal alterations to existing two-story dwelling and removal of trees.” No specific reference was made to underpinnings in the description of the works. The estimated cost of the works was identified as $49,937.04. There was no allowance made for underpinnings in the cost estimate prepared by Duo Tax Quantity Surveyors.

16. The stamped construction certificate plans were prepared by Capital Engineering Consultants and are dated 22 October 2021. On the “Ground Floor Slab Plan” for the Dwelling, a notation stated “UNDERPINNING MAY BE REQUIRED - ENGINEER TO CONFIRM DURING CONSTRUCTION” and also stated “ENGINEER TO CONFIRM ADEQUACY OF EXISTING FOOTINGS DURING CONSTRUCTION”. The stamped construction certificate plans marked the existing walls of the Dwelling “EXISTING TO REMAIN”.

17. On 23 May 2022, Construction Certificate CC 003/22 (CC) was issued in respect of the development permitted by the Consent. The Defendant is listed as the owner and builder on the CC, with licence/permit number 471531P.

The Offending Conduct

18. In early 2023, Council became aware that large hoarding had been placed around the Dwelling on the Land which was secured with padlocks, and that building activity may have been occurring on site.

19. On 15 February 2023, Council Officer, Mr McClure and Council’s Heritage Adviser, Mr Patton, attended the Land and were granted access to the site by two labourers. On this occasion, Mr McClure observed that the roof, ceilings, footings, walls, floors, windows and doors had been demolished and/or removed from the property. Below are some of the images taken by Mr McClure:

Structural Report Dated 22 February 2023

20. On 22 February 2023, Mr Miladinovic, a structural engineer, produced a report identifying areas of structural instability, cracks and inadequacies in the building foundations, as well as degraded wall joints that he asserts he had identified during a site visit on 9 December 2022 (the Structural Report).

21. In the Structural Report, Mr Miladinovic recommended that:

…the demolition of these walls will need to commence prior to any further site work, as any other work in the vicinity could destabilise the walls and lead to a collapse.

Defendant’s Remedial Building Action Plan

22. The Defendant obtained a Remedial Building Action Plan from the firm Weir Phillips Heritage and Planning, dated September 2023 (the RAP).

23. The RAP notes (at [2.1]) that the only dwelling walls remaining intact on the Land were the masonry wall on the street front northern elevation, the masonry walls on the western elevation, and the northern half of the masonry walls on the eastern elevation.

24. The following sketch contained in the RAP depicts: (i) the masonry walls of low heritage significance that were removed (dotted green lines); (ii) the masonry walls, two verandahs and one bay window of high heritage significance that were removed (dotted orange lines); and (iii) the masonry walls that were not removed (black solid lines).

25. Attached to the RAP is a Schedule of Conservation Works for the Land (the SCW), which the Defendant obtained from Heritage 21 in March 2022 in accordance with condition 6 of the Consent.

26. In relation to the heritage significance of the masonry walls, the SCW records that “Original masonry is to be retained and made good as instructed”, and where a structural engineer has determined that cracks and deformations are impacting the structural integrity of the building, such that bricks needed replacing, the mason undertaking the work is to inspect the rear face of the brick for damage. If the rear face is deemed to be in good condition, the brick is to be re-laid using the rear face at the façade. Further, that existing masonry is to be made good where the masonry poses a risk to the structural integrity of the building users, under the direction of a structural engineer and in collaboration with Heritage 21. The SCW also records that internal walls within the area of high significance should be restored sympathetically, employing traditional techniques and materials.

27. In addition to masonry walls, the SCW lists the following relevant items as having been demolished and/or removed from the Dwelling on the Land: terracotta Marseille roof tiles, rafters and associated roof timbers had been completely removed; ceiling joists and associated timbers had been completely removed; the bay window in the street elevation had been removed; the high significance street front and eastern front verandahs had been completely removed; all the timber windows had been completely or partially removed with the exception of the portal window in the street elevation; and all the doors had been completely removed with the exception of the French doors in the street elevation.

Development Control Orders

28. On 20 February 2023, Council issued a Notice of Intention to Issue a Restore Works Order to the Defendant pursuant to s 9.35(1)(b) and Sch 5, Part 1, Item 10 of the EP&A Act.

29. On 28 February 2023, Council issued a Notice of Intention to Issue a Stop Work Order to the Defendant pursuant to s 9.35(1)(b) and Sch 5, Pt 1, Item 10 of the EP&A Act in the following terms:

Stop all work being carried out at the abovementioned premises.

30. On 23 April 2023, Council issued a Restore Works Order to the Defendant (the Restore Works Order). The terms of the proposed Restore Works Order were (with emphasis in original):

1.   The entire ground floor and first floor dwelling identified as having high significant in Figure 3 of the attached Schedule of Conversation Works is to be reconstructed/restored, as well as those areas included in the approved Development Application DA.2021.11 Plans. This includes in traditional building methods and utilising traditional building materials - e.g. double brick external walls, sandstone foundations supporting the brick walls, timber framed windows. This is to be designed (in line with approved floor plans and photographs of the dwelling prior to demolition) and supported by a Heritage Architect with knowledge of traditional building techniques;

2.   The restoration/reconstruction of the dwelling will need to pay particular attention to the original exterior detailing, including verandah locations, awnings, types and size of door openings (e.g. there were a number of French doors entering out to hardwood timber verandahs);

3.   To reconstruct/restore the unglazed terracotta roof with decorative finals (sic);

4.   All restoration works/reconstruction works internal and external identified in the Schedule of Conservation works are to be carried out and supervised by a Heritage Architect.

31. The Restore Works Order required compliance within 28 days of its issue, being 25 May 2023.

Appeal Proceedings – Restoration Works

32. On 24 May 2023, the Defendant filed a Class 1 Application appealing the Restore Works Order issued by Council (Restore Works Order Proceedings).

33. As part of the Restore Works Order Proceedings, the Defendant and the Council reached an agreement to modify the terms of the Restore Works Order based on the Defendant's offer to carry out reconstruction, remediation and restoration works in accordance with the RAP (Modification Order).

34. On 1 November 2023, a s 34 Agreement was filed in the Restore Works Order Proceedings formalising the Modification Order requiring the Defendant to carry out reconstruction, remediation and restoration works in accordance with the RAP within 12 months of the date of the Order.

35. The works the Defendant has agreed to carry out are detailed at pp 7-23 of the RAP. Such pages specifically identify the parts of the existing building still standing and details the work required to reconstruct and remediate those structures. Specific reference is made to the approved SCW at section 1.3 of the RAP.

36. According to the terms of the Modification Order as agreed between the Defendant and Council in the Restore Works Order Proceedings, the Defendant is required to carry out restoration works in accordance with the agreed terms and the following documents:

1. Architectural Plans prepared by ES Design dated 22 August 2023; and

2. The staging as set out at p 24, Appendix 2 of the RAP.

37. The RAP, at p 24, identifies the anticipated timeframes and staging for completion of the reconstruction and remedial work identified on pp 7-23 of the RAP. The total anticipated timeframe for completion of the works is identified as 88 weeks.

38. On 28 November 2023, the Court made orders in accordance with the s 34 Agreement: Alam v Burwood Council [2023] NSWLEC 1180.

Defendant’s Admissions

39. On 16 October 2023, Council wrote to the Defendant asking questions in respect of the offending conduct as part of its investigation (Council’s Questions).

40. The Defendant advised that he would assist Council with its investigation and provide answers to Council’s Questions following receipt of legal advice.

41. On 21 December 2023, the Defendant provided responses to Council's Questions.

42. In the responses, the Defendant made various admissions in writing as to his involvement in the offence, including the following:

I understood the DA approved some demolition of the building and alteration to it. While I was carrying out the works, I noticed that a lot of walls had cracks and defects within them while I was doing the work to the building. These showed when I was doing works next to or near walls and when paint began to crack off from walls.

Because the building was to be my family home I was worried about this and organised for a structural engineer to review the walls and building generally.

I received advice from a structural engineer that many walls and footings were not stable to support the proposed works.

When I heard this and the engineer's recommendations my response was to focus on resolving the problem. I honestly always intended to replace every bit of wall which was removed, exactly where it was located just with proper structure and footing to make it safe.

When I started the work I was completely focused on resolving the structural problem which the engineer had identified and because I was simply going to replace the wall, just with footings underneath it I didn't focus on stopping and talking to council about it or getting someone to seek approval for me.

I was worried about the structure and removed the roof above the walls which were not structurally sound. Once I started removing the walls which were shown as not structurally sound this made the wall next to it less stable and come down [sic]. I removed all the walls which were shown as structurally not sound but made sure that I retained all of the walls the engineers report showed as being stable and structurally sound.

I understand now that the work I did went well beyond what the approval allowed me to do with demolition. I have been shown plans and agree that the demolition I did was beyond what the approved plans allowed for. My intention was not to demolish the building but simply rebuild it in a safe way on footings so that my family could live there. I kept the materials and bricks to rebuild the walls on site.

I removed the roof because I was worried it was unstable and needed to come done [sic] to allow me to rebuild the walls and attach it to it.

43. The Defendant also admitted to undertaking all the unlawful works himself, including “the demolition works of the roof and walls” using his own machinery.

Nature of charges to which guilty pleas entered

44. Section 4.2(1)(b) of the EP&A Act provides:

4.2   Development that needs consent

(1)   General If 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—

…

(b)   the development is carried out in accordance with the consent and the instrument.

Maximum penalty—Tier 1 monetary penalty.

45. As is disclosed by the facts in this case, the Defendant obtained consent to carry out development on the Land, however, the work he undertook, was not authorised by the Consent, in so far as he carried out demolition works in excess of that authorised by the Consent. The Defendant, therefore, did not carry out the development in accordance with the Consent.

46. The nature and extent of the demolition works are particularised in each of the charges as:

1. In proceedings 2024/00216164: the demolition of internal and external walls of the Dwelling; and

2. In proceedings 2024/00216165: the removal of the following items from the Dwelling:

1. Timber windows with the exception of the portal window in the street elevation;

2. Doors with the exception of the French doors in the street elevation;

3. Bay window;

4. Two verandahs;

5. Ceiling joists and associated timbers; and

6. Roof tiles, rafters and associated roof timbers.

Sentencing principles

47. In determining an appropriate sentence, it is necessary to have regard to the purpose which the sentence is intended to serve. The purposes of sentencing are outlined in s 3A of the Crimes (Sentencing Procedure) Act 1999 (NSW) (CSP Act) as:

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.

Statutory matters required to be taken into account in sentencing

48. For the purposes of sentencing in these matters the following factors as provided for in s 21A of the CSP Act have been identified as relevant:

21A   Aggravating, mitigating and other factors in sentencing

(1)   General In determining the appropriate sentence for an offence, the court is to take into account the following matters –

(a)   the aggravating factors referred to in subsection (2) that are relevant and known to the court,

(b)   the mitigating factors referred to in subsection (3) that are relevant and known to the court,

(c)   any other objective or subjective factor that affects the relative seriousness of the offence.

The matters referred to in this subsection are in addition to any other matters that are required or permitted to be taken into account by the court under any Act or rule of law.

(2)   Aggravating factors The aggravating factors to be taken into account in determining the appropriate sentence for an offence are as follows –

…

(g)   the injury, emotional harm, loss or damage caused by the offence was substantial,

The court is not to have additional regard to any such aggravating factor in sentencing if it is an element of the offence.

…

(3)   Mitigating factors The mitigating factors to be taken into account in determining the appropriate sentence for an offence are as follows –

…

(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 or Division 1A),

(m) assistance by the offender to law enforcement authorities (as provided by section 23),

…

(4)   The court is not to have regard to any such aggravating or mitigating factor in sentencing if it would be contrary to any Act or rule of law to do so.

(5)   The fact that any such aggravating or mitigating factor is relevant and known to the court does not require the court to increase or reduce the sentence for the offence.

49. It is to be noted that where a prosecutor contends that a particular sentencing consideration should be treated as an aggravating feature it must establish by evidence, beyond reasonable doubt the presence of such aggravating factor. Where a Defendant contends for the presence of a mitigating factor in sentencing it must establish the presence of such factor on the balance of probabilities: Environment Protection Authority v Sydney Water Corporation [2019] NSWLEC 100 at [131].

Objective seriousness of offences

50. The determination of an appropriate sentence is to be undertaken bearing in mind that:

A sentence should never exceed that which can be justified as appropriate or proportionate to the gravity of the crime considered in light of its subjective circumstances: Bentley v BGP Properties Pty Ltd (2006) 145 LGERA 234 at [162].

51. The primary factor to be considered in sentencing is the objective seriousness of the offences. The objective seriousness of the offences fixes both the upper and lower limits of proportionate punishment: the upper, as a sentence should never exceed that which can be identified as proportionate to the gravity of the particular crime; and the lower, as an allowance for the subjective considerations can never produce a punishment that does not reflect the objective seriousness of the offence: Environment Protection Authority v Waste Recycling and Processing Corporation (2006) 148 LGERA 299; [2006] NSWLEC 419 at [139]-[140].

52. The objective gravity of the offence is to be judged by two principal components: the precise acts or omissions of the offender; and the consequences of those acts or omissions: Environment Protection Authority v Baiada Poultry Pty Ltd (2008) 163 LGERA 71; [2008] NSWLEC 280 at [22].

53. The Defendant accepted that in an environmental offence (such as the cases before me) in determining objective seriousness the factors to be taken into account may include those outlined in Plath v RawsonPlath v Rawson (2009) 170 LGERA 253; [2009] NSWLEC 178 at [48] (per Preston CJ of LEC). Such factors, though not exhaustive, include:

1. The nature of the offences;

2. The maximum penalties for the offences;

3. The harm caused to the environment by the commission of the offences;

4. The state mind of the offender in committing the offences;

5. The offender's reasons for committing the offences;

6. The foreseeable risk of harm to the environment by commission of the offences;

7. The practical measures to avoid harm to the environment; and

8. The offender’s control over the causes of harm to the environment.

Nature of offences and maximum penalty

54. As indicated by the Prosecutor, each of the two offences are Tier 2 strict liability offences and carry the maximum penalty for an individual of $500,000: s 9.53 of the EP&A Act. The strict liability nature of the offences and the quantum of the maximum penalty are indicators of the public expression by Parliament of the seriousness of the offences and the gravity of the offences as perceived by the community: Axer Pty Ltd v Environment Protection Authority (1993) 113 LGERA 357 (Axer) at 359; and Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683; (1993) 82 LGERA 21 at 698.

55. The subject matter of the charges relates to the carrying out of development otherwise that in accordance with the Consent. The EP&A Act provides a mechanism for the assessment and control of development, where development consent is required. Where a development consent is obtained the EP&A Act limits the scope of the work to that which is provided for in the development consent. Where a person fails to adhere to the terms of a development consent the intent of the EP&A Act to manage the orderly development of land is undermined.

The harm caused to the environment by the commission of the offences

56. A factor that is relevant in the consideration of the environmental harm caused by the commission of the offences in these cases is that the Consent related to a dwelling that had been identified as an item of environmental heritage. Section 3.1 of the EP&A Act sets out the objects of that Act and relevantly for the purposes of the consideration of sentence in these proceedings, includes as one of its stated objects:

(f)   To promote the sustainable management of built and cultural heritage (including Aboriginal cultural heritage).

57. Such an object makes apparent that the process of requiring the proper assessment of heritage impact prior to the undertaking of any development that is likely to affect the heritage significance of any relevant item. Absent such assessment the ability to sustainably manage such resources is undermined and the integrity of the system provided for in the EP&A Act to manage such impacts is diminished: Great Lakes Council v Spalding [2011] NSWLEC 257 at [35]. The facts of the cases before me disclose that the nature of the offences related to a heritage item and that the demolition of parts of the building that had heritage value had not been authorised nor had such impacts been assessed. Further, identified as part of the heritage value of the individual building was its relationship as part of an intact group of heritage buildings. The carrying out of the unauthorised work impacted not only the heritage value of the individual building but also diminished the heritage value of the group of buildings.

58. Affidavit evidence of Ms Trueman, heritage consultant was adduced by the Prosecutor. This evidence was not contested by the Defendant. She summarised the environmental impact of the unauthorised works at pars 18-19 and 21-23 as follow:

18   The near complete demolition of the house has had a major adverse material impact on the significance of the heritage item. The significance of the house has been fundamentally lost. Its significance under criterion a), c) and g) has been lost. This amounts to major environmental harm.

19   The reconstruction of the house in accordance with the Land and Environment Court approved Development Control Order No. 10 (Radwan Alam v Burwood Council LEC Proceedings 2023/166071) will result in the construction of a facsimile of the original cottage. This would mitigate some of the harm.

…

21   In addition, the significance and integrity of the group of cottages form 48-54 Fitzroy Street has been diminished by the loss of one of the four original cottages. This amounts to a moderate to high amount of environmental harm.

22   The photographs below, taken on 7 November 2024, show the group of significant houses and demonstrate the impact of the loss of the house at 48 Fitzroy Street, which previously formed the western ‘bookend’ of the group. The loss of the roof and front verandah, elements that are consistent across the group, has eroded the cohesion and integrity of the historic streetscape.

23   Furthermore, the significance and integrity of the Wallace and Brady Streets Heritage Conservation Area has been diminished by the loss of a building that had a strong contribution to the heritage values of the HCA. This also amounts to a moderate to high amount of environmental harm.

59. The Defendant submitted that it was also appropriate for consideration to be given to the heritage report obtained by him in connection with the RAP. In that report the author considers the individual elements of the building and attributes a heritage value to each element, from high to low heritage significance. I have taken that report into account. However, that report was not commissioned to express an opinion on the totality of the harm caused by the offending, but to identify a means to remedy or mitigate the harm that the work had caused. Whilst each element of the building may have had differing heritage significance when viewed in isolation, the offending works were not isolated or limited to a particular item of a particular heritage value. Rather, the works when viewed as a whole, represent a loss of heritage value as described by Ms Trueman. Whilst I have taken the RAP report into account, I do not consider that it permits of a finding that the harm was not substantial.

60. Having regard to the evidence adduced, I am satisfied beyond reasonable doubt that the offending conduct caused environmental harm to the heritage item itself and the integrity of the group of which it forms part, which harm was substantial. I therefore consider this an aggravating factor to be taken into account in the sentencing for each matter under s 21A(2)(g) of the CSP Act.

The state mind of the offender in committing the offences

The offender's reasons for committing the offences

61. Each of these offences are strict liability offences and therefore do not require, as an element of the offence, intention to commit the offence. However, the offender’s state of mind or reasons for committing an offence may nonetheless be relevant in determining the degree of criminality in assessing the objective seriousness of the offending.

62. In this case, as is outlined at [42] in his response to the Council’s Questions the Defendant indicated that he acted to demolish those parts of the building that he considered were structurally unsound. His assessment of the structural adequacy of the building was supported by an inspection (and later written advice) of a qualified structural engineer (see [20] and [21]).

63. On the evidence adduced in this matter there is no reasonable basis not to accept that the reason the Defendant committed the offending conduct was to remedy what he believed to be a structural defect.

64. I also take into account the fact that the Defendant must have known that development consent was required for any demolition, as is evidenced from his application to the Council for the Consent where the scope of the demolition was clearly defined. Further, the conditions imposed upon the development consent clearly prescribed the extent of work that was authorised. Any casual reading of the development consent would have made it apparent that the demolition works the subject of these proceedings was not authorised by Council.

65. In addition, the heritage impacts of the demolition must also have been known to the Defendant. The development application lodged by him was accompanied by a HIS. The conditions of the Consent required the carrying out of the development in accordance with that HIS (condition 1). Specific conditions were also imposed upon the Consent to manage the impact upon the heritage values of the Dwelling (conditions 6-9). Each of these factors, on any view, were sufficient to bring the risks of environmental harm to the attention of the Defendant.

66. The Defendant’s state of mind and reasons for committing the offences, from the evidence available, is that the Defendant did not turn his mind to whether the development consent authorised the further demolition works. The failure to even contemplate the scope of the Consent in deciding to carry out the offending works is a matter that increases the seriousness of the offending conduct, as it is an essential part of the scheme of the EP&A Act that a person authorised to carry out development do so within the confines of that for which they have sought and obtained consent. I accept that there is no evidence that the Defendant committed the offences intentionally in so far as he had the intention to breach the law. However, the failure to turn his mind to whether further consent was required, whilst an explanation, does not reduce the criminality of the offending conduct, it is a matter that increases the objective seriousness of the offending in the circumstances of each of these cases.

The foreseeable risk of harm to the environment by commission of the offences

The practical measures to avoid harm to the environment

The offender's control over the causes of harm to the environment

67. The Defendant accepted that the risk of harm to the environment was foreseeable. He also accepted that there were practical measures to avoid harm, namely by seeking the approval of the Council for the demolition work. He further accepted that as owner builder and the person who carried out the work that he had control over the causes of harm to the environment.

68. In taking these factors into account, in light of my findings as to the offender’s state of mind and the reasons for committing the offences, I do not consider that any of these factors increase the objective seriousness of the offending in these cases. Each of these factors were a natural incident as a consequence of the nature of the offending conduct.

Conclusions on objective seriousness

69. The Prosecutor submitted that each offence was a serious example of offending of this kind and would lie at the middle range of objective seriousness.

70. The Defendant submitted that, based upon an assessment of the heritage values of each individual component demolished:

1. In proceedings 2024/00216164, moderate environmental harm; and

2. In proceedings 2024/00216165:

1. the removal of the bay windows and two verandahs has caused significant environmental harm attributable to their high heritage significance; otherwise

2. there is no evidence of environmental harm with respect to balance of the items particularised in the Summons.

71. For the reasons outlined above, I do not accept that an accounting of the objective seriousness of the offending work by individual element is appropriate. Having accepted the evidence of Ms Trueman that the heritage impacts are significant and that the remedial work will not restore the lost heritage value, I accept that the environmental harm comprising the heritage impact is moderate when viewed as a whole and that such is an aggravating feature.

72. As to the other factors that relate to an assessment of objective seriousness, the undermining of the objects of the EP&A Act is a feature of any offending of this kind and that the facts of this matter do not indicate that such feature was of such a type as to warrant a finding that would increase the objective seriousness of the offending in a significant respect. I have regard to the reasons for the commission of the offence and that the harm was foreseeable and the conduct within the Defendant’s sole control.

73. Taking all of those factors into account, I determine the objective seriousness of the offending in each proceeding to be at the high end of the low range of objective seriousness.

Subjective circumstances of offender

Prior convictions – s 21A(2)(d) of the CSP Act

74. The Defendant has no prior convictions for an environmental crime. I consider this to be a mitigating factor.

Character of the Defendant, unlikely to reoffend, and prospects for rehabilitation – s 21A(3)(f), (g) and (h) of the CSP Act

75. The Defendant provided two character references.

76. The first from Mr Dakhoul. Mr Dakhoul’s reference was addressed to the Court and it indicated in that he had been provided with a copy of the Agreed Facts. On that basis, I am satisfied that Mr Dakhoul provided the reference with full knowledge of the circumstances surrounding the offending and the purpose to which his reference was to be directed. Mr Dakhoul stated:

I have known Radwan in both a personal and professional capacity. In my dealings with him, I have found him to be an individual of integrity, responsibility, and a strong sense of moral accountability. In the years I have known Radwan I have had the time to observe him work. I also work in the construction industry.

It is important to acknowledge that, while the offence in question is serious, Radwan has shown sincere remorse and taken full responsibility for his actions. From my perspective, he has been forthcoming about the mistake he made and has expressed genuine regret over the consequences of his decisions. I have seen how deeply this situation has affected him, and I believe that it has given him the opportunity to reflect on his actions and to learn from this experience.

Radwan’s character outside of this incident speaks to a person who is committed to his family, his community, and his professional life. He has always been someone who values honesty and fairness, and I have witnessed these traits in both his personal and professional relationships. In the time I have known him, he has been consistently respectful, kind, and considerate of others. I have no doubt that this unfortunate incident does not reflect his overall character or the type of person he is.

77. The second reference was from Mr Rufo who has known the Defendant for some 24 months in a professional capacity. Mr Rufo’s reference was addressed to the Defendant’s solicitor (and the presiding magistrate) and whilst he commented that he understood that the Defendant was required to attend court “about development actions” at the relevant premises I am less certain that Mr Rufo fully understood the nature and context of the offending. To the extent that Mr Rufo expresses his opinion as to why the Defendant engaged in the offending, I give such expression little weight. However, I accept his reference in so far as he attests to his knowledge of the Defendant and where he states:

I safely attest to have found Mr Alam to be of good character, respectful to those of his employ and with very close ties to his immediate family and children.

78. I am satisfied on the basis of these references that the Defendant is of good character and I will take that factor into account as a mitigating factor in the sentence for each proceeding.

79. For the reasons I outline in connection with the considerations relating to remorse and specific deterrence I also consider that the Defendant has good prospects of rehabilitation and is unlikely to reoffend. As the consideration overlaps with the relevant factors identified I will not separately take this matter into account as a mitigating factor but will consider it as part of my considerations on remorse and specific deterrence.

Remorse

80. The Defendant did not give evidence in either proceeding. I do not take this into account in determining remorse, merely to note the context of the statements that I do take into account. In the Defendant’s response to the Council’s Questions (see [42] above) he stated:

…I understand now that the work I did went well beyond what the approval allowed me to do with demolition. I have been shown the plans and agree that the demolition I did was beyond what the approved plans allowed…

81. In addition, evidence was adduced from a psychologist, Mr Attai, who stated that in his dealings with the Defendant:

He demonstrated remorse and contrition for the offence and said that he had no ill intentions at the time, and wished to make amends for his behaviour.

82. I have had regard to the statements of remorse that the Defendant made to the Council and the expressions of remorse made to Mr Dakhoul and Mr Attai outlined above.

83. In light of the Defendant’s admissions and statements to others, I am satisfied that the Defendant takes responsibility for his actions and acknowledges the harm such actions caused. I also take into account that through the preparation of the RAP and the agreement to undertake those remedial actions that the Defendant will, at least to the extent now possible, take steps to reduce the harm. Such action, together with the statements made, satisfy me that the Defendant is genuinely remorseful of his conduct. I will take this matter into account as a mitigating factor.

Early plea of guilty – s 22 and s 21A(3)(k) of the CSP Act

84. In this matter, pleas of guilty were entered on the first return of the Summonses. The Prosecutor and the Defendant both submit that the full discount for the utilitarian value of the early plea should be afforded to the Defendant in each proceeding. I accept this submission and will apply the full 25% discount for the early pleas.

Assistance to the Council – s 21A(3)(m) and s 23 of the CSP Act

85. The Defendant voluntarily answered the Council’s Questions. The answers were against his interest. Whilst the Prosecutor made submissions that at least some of the answers were inaccurate or misleading I am not satisfied to the relevant standard that such a finding should be made. I consider the answers (as transmitted by the solicitor for the Defendant) were a sufficiently conscientious effort to answer the questions that were posed. Whilst the responses may have not had the accuracy the Prosecutor contended for, I do not consider that the answers complained of would materially affect the determination of sentence, such that I would consider the answers were not of assistance to the Prosecutor. I am satisfied on the balance of probabilities that in providing the answers to the questions posed, the Defendant provided assistance to the Prosecutor and that such factor should be taken into account as a mitigating factor in the determination of the sentence in each matter.

Deterrence, retribution and denunciation

86. As to specific deterrence I am satisfied, for the reasons outlined above in connection with his expressions of remorse, that the Defendant is now fully aware that demolition of the type he undertook cannot be undertaken without the necessary consent. In light of that understanding, I do not consider that there is a need for the sentence to reflect a specific deterrence.

87. It has been observed that there must be an element of general deterrence in dealing with significant breaches of the planning laws: Cooper v Coffs Harbour City Council (1997) 97 LGERA 125; (1997) 98 A Crim R 340 at 143. As was observed Chief Executive Office of Environment and Heritage v Clarence Valley Council (2018) 236 LGERA 291; [2018] NSWLEC 205 at [98]-[99] (per Preston CJ of LEC):

…The sentence of the Court needs to operate as a powerful factor in preventing the commission of similar offences by other persons who might be tempted to do so by the prospect that, if they are caught, only light punishment will be imposed. Courts have repeatedly stated, when sentencing for environmental offences, that the sentence of the Court needs to be of such magnitude as to change the economic calculus of persons in determining whether to comply with or to contravene environmental laws. It should not be cheaper to offend than to prevent the commission of the offence. Environmental crime will remain profitable until the financial cost to offenders outweighs the likely gains by offending. [case citation omitted]

Where a fine or other monetary penalty is determined to be appropriate, the amount needs to be such as will make it worthwhile to incur the cost of complying with the law and undertaking the necessary precautions. The amount of the monetary penalty must be substantial enough so as not to appear as a mere licence fee for illegal activity. The sentence of the Court changes the economic calculus of persons who might be tempted not to comply with environmental laws or not to undertake the necessary precautions. Compliance with the law becomes cheaper than offending. Environmental crimes become economically irrational. [case citation omitted]

88. It is often the case that once development commences defects relating to an existing building become apparent. However, the identification of such defects and the necessity to undertake some action to address such matters do not overcome the legal necessity to obtain approval to undertake work not otherwise authorised by a development consent. The EP&A Act makes statutory provision for the modification of development consents in such circumstances. The EP&A Act also mandates that any such work be critically assessed prior to any approval being granted. Such a process ensures that all relevant factors, including, as arose in this case, the questions of heritage are addressed and considered.

89. In this case, such circumstances are central to the environmental harm that was occasioned by the offending conduct. For that reason, I consider it appropriate to consider the need for general deterrence in the determination of the relevant penalty for the offending conduct.

Consistency in decision-making

90. The principle of even-handedness requires that the Court consider if there is any sentencing pattern for like offences in order to ensure that there is a consistent approach to penalty. This approach, however, must also acknowledge that care must be taken in comparing cases where the circumstances of and facts relating to the offences may be quite different: R v Visconti [1982] 2 NSWLR 104; and Axer at 365.

91. The Prosecutor identified a number of previous decisions relating to offending of this type. However, it was accepted by the Prosecutor that such cases differed factually and did not demonstrate a pattern of sentencing such that the sentence in this matter would be guided by those cases. I do not consider that there is any pattern of sentencing which would be relevant to my determination of sentence in these cases.

Legal costs

92. The parties have agreed a sum to be paid for the Prosecutor’s legal costs of the prosecution. The agreed sum is in the amount of $53,000 and I will impose such sum, divided in half for each proceeding.

93. The legal costs payable is a relevant matter to take into account in sentencing (see Environment Protection Authority v Barnes [2006] NSWCCA 246 at [88]) I will take this into account in determining sentence.

Fines Act – capacity to pay

94. Section 6 of the Fines Act 1996 (NSW) requires me to take into account the Defendant’s capacity to pay any fine. The Defendant does not submit that he does not have capacity to pay a fine. Therefore, this matter is not a relevant consideration in the determination of the sentences.

Determination of sentence

95. The appropriate sentence is to be derived by an “instinctive synthesis” of all of the relevant factors in order to determine an appropriate proportionate sentence: Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25.

96. Subject to the principle of totality I consider below, taking into account the objective seriousness of the charges and the subjective factors identified above, I would have determined that the appropriate sentence in this case includes the imposition of a monetary penalty (in addition to the publication order and the additional orders relating to legal costs) in the following amounts:

1. In proceedings 2024/00216164, a fine in the amount of $125,000 reduced by 25% for the early plea of guilty resulting in a fine of $93,750; and

2. In proceedings 2024/00216165, a fine in the amount of $125,000 reduced by 25% for the early plea of guilty resulting in a fine of $93,750.

Totality principle

97. The principle of totality is a relevant sentencing principle in the present case where both offences with which the Defendant has been charged and which it has pleaded guilty arise from the same identical facts and circumstances.

98. The principle has been concisely described by the majority of the High Court in Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57 at [40] as:

To the extent to which two offences of which an offender stands convicted contain common elements, it would be wrong to punish that offender twice for the commission of the elements that are common. No doubt that general principle must yield to any contrary legislative intention, but the punishment to be exacted should reflect what an offender has done; it should not be affected by the way in which the boundaries of particular offences are drawn. Often those boundaries will be drawn in a way that means that offences overlap. To punish an offender twice if conduct falls in that area of overlap would be to punish offenders according to the accidents of legislative history, rather than according to their just deserts.

99. It is appropriate to leave questions of totality to the end of the sentencing process and apply a final check of the aggregate sum of the fines proposed to be imposed against whether it is a just and appropriate penalty for the entire criminality: ACE Demolition & Excavation Pty Ltd v Environment Protection Authority (2024) 260 LGERA 358; [2024] NSWCCA 4 at [111].

100. In this case, the Prosecutor commenced two sets of proceedings in relation to the one course of conduct. The differentiation between the conduct was said to relate to:

1. Demolition using heavy machinery: proceedings 2024/00216164; and

2. Demolition by way of removal without the use of heavy machinery: proceedings 2024/00216165.

101. When viewed in the context of that distinction, it is apparent that the elements of each offence are co-incident with respect to the conduct and circumstances giving rise to the commission of each offence and the consequence of each offence. The only distinction identified was the means by which the conduct was undertaken. There is no element of the offences before me that distinguishes between the means of demolition.

102. In considering the two offences I am satisfied that the circumstances are such that the application of the sentencing principle of totality is appropriate to be applied in the circumstances of this case. However, in applying the principle of totality I must also ensure that the specific elements of demolition are taken into account, as each proceeding particularises a different element of the building demolished. In those circumstances, I consider it appropriate that the appropriate sentence in each matter be reduced by 50% to reflect the differing elements demolished whilst recognising that the offending was a single course of conduct giving rise to the same offence under the EP&A Act. A fine of such amount would represent the aggregate sum reflecting the just and appropriate fine for the entire criminality.

103. Accordingly, in applying the principle of totality to the fine I determined at [96] above, the fine to be imposed as an appropriate sentence in each proceeding is:

1. In proceedings 2024/00216164, a fine in the amount of $93,750 reduced by 50% for totality resulting in a fine of $46,875; and

2. In proceedings 2024/00216165, a fine in the amount of $93,750 reduced by 50% for totality resulting in a fine of $46,875.

Publication order

104. Section 9.56 of the EP&A Act provides that Pt 8.3 of the Protection of the Environment Operations Act 1997 (NSW) (POEO Act) applies to an offence such as those before me for sentencing. Part 8.3 of the POEO Act makes provision as to the nature of additional orders that may be made in sentencing an offender. Section 250(1)(a) of the POEO Act provides that the Court may make an order requiring the offender to take specified action to publicise the offence (including the circumstances of the offence) and its environmental and other consequences and any other orders made against the person (Publication Order).

105. The Prosecutor and Defendant agreed that a publication order in the form as agreed by them was appropriate to be ordered in these cases. I agree. I will order that the Defendant takes action to publicise the offence by way of a Publication Order in the form agreed between the parties.

Orders

106. In proceedings 2024/00216164, the Court makes the following orders:

1. The Defendant is convicted of the offence against s 4.2(1)(b) of the Environmental Planning and Assessment Act 1979 (NSW) as charged;

2. The Defendant is to pay a fine in the sum of $46,875; and

3. The Defendant is to pay the Prosecutor’s legal costs in the agreed sum of $26,500 pursuant to s 257B of the Criminal Procedure Act 1986 (NSW).

107. In proceedings 2024/00216165, the Court makes the following orders:

1. The Defendant is convicted of the offence against s 4.2(1)(b) of the Environmental Planning and Assessment Act 1979 (NSW) as charged;

2. The Defendant is to pay a fine in the sum of $46,875; and

3. The Defendant is to pay the Prosecutor’s legal costs in the agreed sum of $26,500 pursuant to s 257B of the Criminal Procedure Act 1986 (NSW).

108. In proceedings 2024/00216164 and 2024/00216165, the Court orders that:

1. Pursuant to s 250(1)(a) of the Protection of the Environment Operations Act 1997 (NSW) the Defendant, at his own expense, and within 60 days of the date of this order, is to cause a notice in the form at Annexure A to this order to be placed in the Sydney Morning Herald at a minimum size of 92 mm high by 129mm wide on one of the first four pages and in the corresponding online edition.

2. Within 67 days of the date of this order, the Defendant must provide to the Prosecutor a complete copy of the pages of the publication in which the notice has appeared, and a copy of the online listing, pursuant to Order (1) above.

Annexure A

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Decision last updated: 11 February 2025