City of Sydney Council v Schwartz
[2003] NSWLEC 261
•09/11/2003
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Land and Environment Court
of New South Wales
CITATION: City of Sydney Council v Schwartz [2003] NSWLEC 261 PARTIES: PROSECUTOR
DEFENDANT
City of Sydney Council
Jerry Leslie SchwartzFILE NUMBER(S): 50017 of 2003 CORAM: Talbot J KEY ISSUES: Prosecution :- assessment of penalty after plea of guilty and consideration of previous offences LEGISLATION CITED: Environmental Planning and Assessment Act 1979 s 76A(1), s 125(1) CASES CITED: R v Thomson; R v Houlton (2000) 49 NSWLR 383 DATES OF HEARING: 11/09/2003 EX TEMPORE
JUDGMENT DATE :
09/11/2003LEGAL REPRESENTATIVES:
PROSECUTOR
Mr T G Howard (Barrister)
SOLICITORS
City of Sydney CouncilDEFENDANT
Mr D J Galpin (Barrister)
SOLICITORS
Leitch Hasson Dent
JUDGMENT:
IN THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES
50017 of 2003
11 September 2003Talbot J
- Prosecutor
- Defendant
Introduction
1 HIS HONOUR: The defendant, Jerry Leslie Schwartz, appears before the Court to answer the charge that he committed an offence against s 125(1) of the Environmental Planning and Assessment Act 1979 (“the EP&A Act”) in that he carried out development at a property known as the Macquarie Hotel, 40-44 Wentworth Avenue in the City of Sydney, without consent, consent being required. Therefore, the work was carried out contrary to s 76A(1) of the EP&A Act.
2 The work has been particularised as cutting into the surface of a wall in the basement of the building for the proposed emplacement of urinals. I have the benefit of photographs to see the extent of that work. Furthermore, there has been the demolition of a brick wall within an existing archway. Again, I have photographs, but without any real explanation as to what the nature of the change that was wrought by that work. Moreover, there has been demolition of a basement floor in the sense that the existing surface appears to have been disturbed with the prospect, I imagine, of replacing it. Finally, within that basement floor there has been emplacement of drainage works and the excavation of trenches for laying of pipes. Again, there is evidence of the placement of pipes, at least in a preliminary way, in photographs produced to the Court.
3 The Macquarie Hotel is a heritage item identified in the Central Sydney Heritage Local Environment Plan 2000 (“the LEP”). In respect of any item identified in the LEP, development consent is required. It was not obtained.
4 The defendant originally pleaded not guilty to the charge but just prior to this hearing today, as I understand it in the last few days, the prosecutor was notified that a plea of guilty would be entered this morning. That has been done.
5 Apart from a report furnished in support of a development application subsequently lodged in respect of this and other work, there is no detailed evidence as to the heritage value of the particular part of the building that was disturbed by this works except that certain aspects of the basement had, so it is said, moderate significance.
6 The impact of the works being carried out without first of all being considered, following lodgement of a development application, consists primarily of the lost opportunity to consider and record the area where the works were done prior to the work being carried out. In fairness, there is no evidence of direct damage to the heritage significance of the building and hence environmental harm. It needs to be taken into account that the illegal works were detected as a consequence of an inspection carried out following the lodgement of a development application in respect of the works. To that extent, the defendant has been the victim of his own actions, as they were the catalyst for the detection of the offensive actions.
7 It does not need to be said in any detail that the Parliament regards this type of offence against the EP&A Act as a serious offence. The Parliament provides for a maximum penalty of $1.1 million. That speaks for itself. However, the range of offences that can occur under the EP&A Act is wide.
8 The history of the defendant in relation to this particular building is not exemplary. On 14 August 2000 orders were made by Cowdroy J that the defendant cease an unauthorised use of parts of the building during the Olympic period, namely between May and December 2000. In May 2001 the defendant was found guilty of contempt of those orders and in the same hearing was fined for obstructing an officer of the council in the conduct of duties.
9 In matter No. 50018 of 2003, heard on 28 July 2003, Lloyd J convicted the defendant following a plea of guilty to a charge that between March and November 2002, which encompasses the same period as the present charge, he carried out development on the same property, although not necessarily the same title, without consent. The current charges, as I have said, relate to work in the basement of the building whereas the earlier charges heard by Lloyd J relate to work on the roof of the building. Lloyd J saw fit to impose a fine of $40,000 on that occasion.
10 The defendant is entitled to benefit from a plea of guilty notwithstanding that the plea was entered at a late stage in the course of preparation for the hearing. Nevertheless, there is some utilitarian value, as identified by the Court of Criminal Appeal in R v Thomson; R v Houlton (2000) 49 NSWLR 383. The matter has proceeded today by way of a Statement of Agreed Facts, witnesses have not been required and the Court’s time has been limited to just over an hour, rather than the two days set aside at the time a plea of not guilty was entered.
11 The Court has been provided with a bundle of testimonials, which generally attest to the good character of the defendant and that the defendant is prominent in the community for his community works, particularly in several areas of charitable endeavours. The Court can accept that the person who appears before the Court is generally known to be of and respected for his good character.
12 The Court does take account of the scale of the works, as Mr Galpin asks it to do. The fact that attention to the works was generated, to some extent, by the defendant lodging a development application is taken into account. Moreover, development consent was ultimately granted in respect of the works which enabled the defendant to complete the project, which says something in support of the claim that they may well have been building works that could have had the benefit of the consent if the defendant had taken that course.
13 It is difficult, nevertheless, to accept the fact that the defendant would not have known that he was required to obtain development consent. The orders of Cowdroy J, including a constraint upon carrying out any work until further order, were extant at the time the offence was committed. I do not propose to add in the nature of any further penalty on account of the fact that these actions may have been in contempt of the Court’s order. That is a separate and distinct matter but nevertheless the existence of the order clearly shows that the defendant should have been aware of what he was doing.
14 Although there may not be the opportunity to strictly apply the principle of totality when it comes to the offence which Lloyd J considered on 28 July this year, the Court can have regard to the fact that the work which his Honour had to consider in that matter (No. 50018 of 2003) was at a different location in the building. However, it may well have, as the prosecutor acknowledges, been part of an overall project associated with work being done on the hotel. I take it into account on the basis that it is in the context of a similar or same timeframe to when the present offence took place.
15 The penalty that would be imposed before taking into account any of the mitigating factors, including the plea of guilty and the good character of the defendant, would have been in the order of $60,000. Having regard to the matters that I have given consideration to and the context of the offence itself, the Court proposes to impose a penalty in the sum of $50,000. I do that also cognisant of the fact that the defendant has agreed to pay the prosecutor’s costs in the sum of $20,500.
16 The Court makes the following formal orders:-
(1) The defendant is guilty of the offence charged.
(2) The defendant is ordered to pay a penalty in the sum of $50,000.
(3) By consent, the defendant is ordered to pay the costs of the prosecutor in the sum of $20,500.
(4) The exhibits may be returned.
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