Camden Council v Batasty Pty Limited

[2008] NSWLEC 206

Land and Environment Court

of New South Wales

CITATION:

Camden Council v Batasty Pty Limited [2008] NSWLEC 206

PARTIES:

Camden Council (Prosecutor)
Batasty Pty Limited (Defendant)

FILE NUMBER(S):

50027; 50028 of 2008

CORAM:

Jagot J

KEY ISSUES:

Prosecution :- guilty pleas - sentence - hotel - carrying out development that required consent in breach of consent conditions - failing to complete carparking and landscaping works within required time - continuing to trade for extended trading hours while trial period suspended - offences related - offences committed for financial gain in commercial context - offences intentional

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979

DATES OF HEARING:

3 July 2008

EX TEMPORE JUDGMENT DATE:

3 July 2008

LEGAL REPRESENTATIVES:

PROSECUTOR
Mr C Shaw (solicitor)
SOLICITORS
Shaw Reynolds Bowen & Gerathy Lawyers

DEFENDANT
Mr A Scotting
SOLICITORS
JPR Legal Pty Limited

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Jagot J

3 July 2008

50027 of 2008
50028 of 2008

CAMDEN COUNCIL
Prosecutor

BATASTY PTY LIMITED
Defendant

JUDGMENT

Jagot J:

1 The defendant, Batasty Pty Limited, has entered pleas of guilty to two charges that it committed an offence against s 125(1) of the Environmental Planning and Assessment Act 1979 (the EPA Act) by carrying out development that required consent in breach of the conditions on which consent had been granted. Specifically, Batasty failed to ensure that the landscaping and a stage 1 carpark associated with its hotel use had been completed within the time required by a consent condition and traded outside the hours authorised by a consent condition. The offences are related because the consent conditions linked the completion of the landscaping and stage 1 carpark to the operation of a trial period for extended trading hours. The maximum penalty for each offence is $1.1 million and a daily penalty of $110,000. The Council did not seek the imposition of any daily penalty and the agreed facts would not permit any such penalty to be calculated.

2 The facts on which sentence should be imposed were agreed.

3 Batasty owns the Narellan Hotel.

4 In 2003 the Court granted a development consent authorising a trial period for extended trading hours but required a carpark for 115 vehicles to be sealed and landscaped.

5 In 2005 the Court modified the development consent. The modified conditions established base trading hours (10.00am to midnight Mondays to Saturdays and 10.00am to 10.00pm Sundays and public holidays). The conditions also permitted a trial period for extended trading hours for 12 months. The conditions required stage 1 of the carpark to be sealed and landscaped within four months of the start of the trial period. They also contained a self-executing provision to the effect that, if the stage 1 works were not completed within the required time, the trial period was suspended with the authorised hours reverting to the base hours.

6 In January 2007 Batasty retained a consultant to assist it in satisfying the consent conditions so the trial period could start. The consultants met with the Council and began submitting the required documents to obtain a construction certificate for the stage 1 works. The Council required amendments and supplementary information. Batasty’s agent notified the Council that the trial period had started on 18 April 2007. The Council issued the construction certificate on 14 June 2007. However, Batasty did not complete (or start) the required works within four months of 18 April 2007. The works were substantial. Batasty received a quote for the whole works (stages 1 and 2) of $900,000. Tenders were then called and amended twice. Batasty accepted a quote of $820,000 for the whole of the works.

7 In the meantime, on 20 August 2007 the Council notified Batasty’s solicitor in writing that the trial period had been suspended in accordance with the consent conditions and the approved hours had reverted to the base hours. On 27 August 2007 Batasty’s consultant wrote to the Council about modifying the consent to extend the four month period for completion of the works and lodged a formal modification application to that end on 14 September 2007. The Council ultimately resolved to approve this application on 11 December 2007. The modified consent extended the four months so as to allow completion of the stage 1 works by 19 December 2007. Due to rain delays the stage 1 works were completed on 7 January 2008. The Council issued the notice of determination approving the modification application on 18 January 2008.

8 Despite the fact that the trial period started on 18 April 2007 and was suspended on or about 20 August 2007, Batasty traded between midnight and 5.00am on a number of occasions between 22 February 2007 and 7 January 2008. There was no dispute that the offence before 20 August 2007 involved an isolated incident related to a failed attempt to start the trial period.

9 Although the consent did not require Batasty to complete the stage 2 works until 12 months after the grant of a consent permanently authorising extended trading hours, Batasty completed the stage 2 works in April 2008.

10 A director of Batasty has expressed the company’s remorse and contrition for the offences.

11 The general manager of the company managing the hotel has explained the difficulties with the tenders for the completion of the works described above. He has also identified, insofar as possible, the cost of the stage 1 works (about $400,000). Further, he has attempted to identify the limited financial gains the hotel may have derived from the extended trading in breach of the consent.

12 Batasty pleaded guilty to the offences at the first opportunity. It has no prior convictions. It has agreed to pay the Council’s costs of the prosecutions in the sum of $23,000. The Council accepts that the offences caused no environmental harm. The hotel received no complaints during the extended hours.

13 Batasty’s counsel accepted that the offences had been committed for financial gain in a commercial context (albeit with the gain in fact achieved, perhaps, being limited). He submitted that two factors in particular distinguished the case from others referred to by the Council. First, but for the delay by the Council in processing the modification application, the extended trading hours would have operated once more. Secondly, Batasty had completed all of the works even though stage 2 was contingent on it obtaining consent for permanent extended trading hours (which had not been obtained).

14 The Council accepted that the offences were related. But for the failure to complete the stage 1 works the extended hours would have continued to apply. The failure to complete the works caused the suspension of the trial period until the works were completed in accordance with the terms of the consent conditions.

15 Batasty should not have started the trial period at all until it was sure that it could complete those works within the four month period. Batasty took steps to complete the works. It seems they turned out to be more expensive and complicated than anticipated. There is no suggestion that it ever intended to do anything other than complete the works. It ultimately did so. The problem with the works was one of timing. The failure to complete the stage 1 works within the required time, on the facts recorded, is an offence at the low end of the scale of seriousness.

16 It is true that Batasty took steps reasonably promptly to regularise its position on trading hours by applying to extend the time for completion of the works. Further, the Council ultimately approved this modification application. Nevertheless, it was within Batasty’s power at all times from the expiry of the four month period to comply with the consent by ceasing trading for the extended hours unless and until either the works were completed (in which event the trial period would recommence under the consent conditions) or the consent conditions modified. Batasty chose to do neither. Knowing that it had failed to construct the stage 1 works within the required time, it continued to trade for the extended hours on a number of occasions. The inference that this was done for some commercial advantage (irrespective of the additional takings in fact obtained) is unavoidable.

17 The fact that Batasty decided to continue trading the extended hours on a number of occasions despite the suspension of the trial period shows that its breaches of the planning laws were deliberate. This, combined with the commercial context in which the offences were committed, makes them objectively serious despite the lack of environmental harm. Decisions of courts dealing with planning and environmental laws contain numerous statements that emphasise the importance of general compliance with such laws. Those who appear to think they can choose not to comply, like Batasty in this case, undermine the purpose and efficacy of these laws thereby causing harm to the whole community. It is for this reason that general deterrence has always been seen as particularly important in the enforcement of planning and environmental laws and is entitled to weight in this case.

18 This case also calls up the factor of specific deterrence for consideration. The period over which Batasty chose to breach the law was lengthy. While it had lodged a modification application that remained undetermined, and applications do not alter the fact of breach. Nothing can change the fact that Batasty was able to stop breaching the law at any time by reverting to the base trading hours. It chose not to do so for its own reasons and maintained that choice over a period of months. This makes the case different from, and far more serious than, those involving one off building works where pressures from and exposures to third parties such as contractors might be involved.

19 Having regard to these circumstances I do not accept that some form of “extraordinary” discount is required by reason of the time it took the Council to determine the modification application and the fact Batasty elected to complete the stage 2 works when it has not obtained consent authorising trading for the extended hours on a permanent basis. The former is part and parcel of the approval process for which developers must allow. The latter must involve a benefit to Batasty as the owner of the hotel, not merely a public benefit. I have given these factors some (but not overwhelming) weight, along with each of the other matters identified above.

20 I have considered the offences both in isolation and together. The maximum penalty of $1.1 million covers a potentially vast range of circumstances. Within that vast range both these offences are at the lower end of the scale, but with the offence relating to breach of the trading hours condition, nevertheless, far more serious than the failure to complete the works in time. I have considered the other decisions referred to by the Council but they are of limited assistance given the factual permutations of each. I reiterate that Batasty must be seen as having chosen to continue to breach the law on a number of occasions over a period of months when it had full control over the trading hours and no apparent reason for so doing other than its own commercial advantage.

21 Having regard to all factors other than the discount for the early pleas of guilty I consider fines of $10,000 and $50,000 respectively should be imposed. I accept that the full discount for the early guilty pleas should be given to Batasty. This would lead to penalties of $7500 and $37,500 respectively. In so doing I have considered the related circumstances of the offences and the total penalty of $45,000. I am satisfied that these penalties reflect the overall criminality of Batasty having regard to all of the circumstances identified.

22 Accordingly:

(1) The defendant is convicted of the offences charged.

(2) The defendant is fined the sum of $45,000 (being $7500 in proceedings 50027 of 2008 and $37,500 in proceedings 50028 of 2008).

(3) The defendant is ordered to pay the prosecutor’s costs agreed in the sum of $23,000.

(4) The exhibits may be returned.

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