Council of the City of Sydney v Trico Constructions Pty Ltd

[2015] NSWLEC 56

Land and Environment Court

New South Wales

Medium Neutral Citation:

Council of the City of Sydney v Trico Constructions Pty Ltd [2015] NSWLEC 56

Hearing dates:

16 and 17 March 2015

Date of orders:

18 March 2015

Decision date:

18 March 2015

Jurisdiction:

Class 5

Before:

Preston CJ

Decision:

(1)  The defendant is convicted of the offence as charged in the amended summons.

(2)  The defendant is fined $46,750.

(3) The defendant is to pay the prosecutor’s costs incurred on and after 18 November 2014, in such amount as may be determined under s 257G of the Criminal Procedure Act 1986.

Catchwords:

OFFENCES AND PENALTIES – sentence – carrying out development without consent – demolition of ceiling of heritage-listed building without prior development consent – objective seriousness of offence – ceiling of high heritage significance – removal caused actual environmental harm of medium seriousness – undermined regulatory system of development control – offence not committed with heightened state of mind or for financial gain – foreseeability of risk of environmental harm – practical measures to avoid environmental harm – control over causes giving rise to the offence – low overall objective seriousness – subjective circumstances of offender – no prior convictions – delayed plea of guilty – offender’s remorse for the offence – offender unlikely to re-offend – appropriate penalty is fine – offender ordered to pay the prosecutor’s costs
COSTS – criminal proceedings – order for costs if the matter is adjourned – incorrect charge dates in summons – prosecutor’s late application at trial to amend – amendment granted – matter adjourned – defendant changed plea from not guilty to guilty – costs incurred by defendant because of incorrect charge dates and late amendment – whether defendant incurred “additional costs because of unreasonable conduct or delays” of prosecutor – meaning of “additional costs” – defendant’s costs not additional costs incurred by the matter being adjourned – no order for costs made

COSTS – criminal proceedings – defendant convicted and sentenced – award of costs to prosecutor – unreasonable conduct and delay of prosecutor – prosecutor specified incorrect charge dates in summons and delayed amendment until trial – disentitling conduct – order for costs only from time when unreasonable conduct and delay remedied by amendment of summons

Legislation Cited:

Crimes (Sentencing Procedure) Act 1999 ss 3A, 21A(3)(i)
Criminal Procedure Act 1986 ss 246, 257B, 257F, 257G
Environmental Planning and Assessment Act 1979 s 125(1)

Cases Cited:

Bentley v BGP Properties Pty Ltd [2006] NSWLEC 34; (2006) 145 LGERA 234
Cameron v Eurobodalla Shire Council [2006] NSWLEC 47; (2006) 146 LGERA 349
Carlino v Leichhardt Municipal Council [2005] NSWLEC 198; (2005) 144 LGERA 235
City of Sydney Council v Schwartz [2003] NSWLEC 261
Environment Protection Authority v Capdate Pty Ltd (1993) 78 LGERA 349, 354
Environment Protection Authority v Truegrain (No 4) [2014] NSWLEC 179
Gittany Constructions Pty Ltd v Sutherland Shire Council [2006] NSWLEC 242; (2006) 145 LGERA 189
Inspector Selby v University of New South Wales [2013] NSWIR Comm 20
Kari v Ghossayn Pty Ltd [2006] NSWLEC 532; (2006) 150 LGERA 231
Ku-ring-gai Council v Vinci [2007] NSWLEC 287
Morton v R [2014] NSWCCA 8
Mosman Municipal Council v Menai Excavations Pty Ltd [2002] NSWLEC 132; (2002) 122 LGERA 89
Mosman Municipal Council v Waratah Village Partners Pty Ltd [2003] NSWLEC 101
Pittwater Council v Scahill [2009] NSWLEC 12; (2009) 165 LGERA 289
R v Borkowski [2009] NSWCCA 102; (2009) 195 A Crim R 1
R v Dib [2003] NSWCCA 117
R v Stambolis [2006] NSWCCA 56; (2006) 160 A Crim R 510
R v Thomson; R v Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383
Sutherland Shire Council v Turner [2004] NSWLEC 774
Willoughby City Council v BCPD Pty Ltd [2010] NSWLEC 163

Category:

Principal judgment

Parties:

Council of the City of Sydney (Prosecutor)
Trico Constructions Pty Ltd (Defendant)

Representation:

Counsel:
Mr T G Howard SC (Prosecutor)
Mr C Ireland (Barrister) (Defendant)

Solicitors:
Council of the City of Sydney, Legal Department (Prosecutor)
Maddocks Lawyers (Defendant)

File Number(s):

50570 of 2013

Publication restriction:

No

Judgment

1. Trico Constructions Pty Limited (‘Trico’) has pleaded guilty to an offence against s 125(1) of the Environmental Planning and Assessment Act 1979 (‘EPA Act’) of carrying out development without consent. The development concerned was the demolition of part of a pressed metal ceiling in the mezzanine level of a listed heritage building in the Sydney Central Business District.

2. A sentencing hearing has been held over the last two days. The Court’s task is to determine and impose an appropriate sentence for the offence. The prosecutor, the Council of the City of Sydney (‘the Council’), and Trico each also applied for an order for costs in their favour.

The facts of the offence

3. Trico is a construction company that has been operating since 1999. It specialises in largely industrial, commercial and medium density construction projects and fit-outs in the Sydney area. It has undertaken a number of projects on heritage buildings.

4. Around 10 September 2012, Trico was employed by George Group (Australia) Pty Limited (‘the George Group’) to undertake investigative works in Reid House located at 69-75 King Street, Sydney.

5. The George Group had recently purchased Lot 5 in Reid House, which was the mezzanine level. At the time, Trico was employed by the George Group to undertake construction and fit-out works at a nearby building at 66 King Street, Sydney.

6. In the week of 10 September 2012, Mr Patrick George of the George Group asked Mr Charles Mellick, a director of Trico, to undertake investigative works on the mezzanine level so that the George Group could appreciate the general condition of the premises to enable them to scope further works. The premises at that time had not been tenanted for about 10 years and were in a poor state.

7. Mr Mellick attended the premises on 11 September 2012 and observed the mezzanine level. The mezzanine level had windows along the northern facade fronting King Street. Parallel to the northern facade were three rows of timber columns, with two columns in each row. The space between the windows and the first row was later designated as bay 1, the space between the first and second rows was designated bay 2, the space between the second and third rows was designated bay 3, and the space to the south of the third row was designated bay 4. There was a further space south of the wall designated as bay 5. Supported above each row of columns was a beam which had pressed metal cladding along the sides or fascia of the beam.

8. On 11 September 2012, Mr Mellick observed that there was a suspended ceiling between each bay. He could not see what was underneath the suspended ceiling. Mr Mellick said the suspended ceiling in bays 1 and 2 were water damaged.

9. Mr Patrick George asked Mr Mellick if Trico could take down the suspended ceiling. Mr Mellick arranged for a work crew to undertake the investigative works on 12 September 2012. He said this work crew had been working on the nearby building at 66 King Street but their work was finishing at that site and it was convenient to move them across the road to Reid House.

10. On 12 September 2012, the work crew removed the suspended ceiling to allow the architecture beneath the suspended ceiling to be inspected and assessed.

11. On 13 September 2012, Mr Mellick attended the premises and observed that the suspended ceiling had been removed from bays 1 and 2, exposing a pressed metal ceiling. Mr Mellick observed the pressed metal ceiling was not in good repair and had many holes and tears in it. Mr Mellick formed the view at the time, based on his experience as a builder, that the pressed metal ceiling in bays 1 and 2 was so damaged that it was irreparable and needed to be removed.

12. Mr Mellick said that Mr Phillip George of the George Group directed Trico to take down the pressed metal ceiling in bays 1 and 2 because it was so damaged. Mr Mellick duly instructed the work crew to remove the ceiling in bays 1 and 2. The work crew did so over the weekend of 15 and 16 September 2012.

13. During the removal of the pressed metal ceiling, the work crew also removed the sprinkler system. Unfortunately, a rogue sprinkler pipe began to discharge water, flooding the camera shop on the ground level. As a result of the water discharge, the fire brigade attended to turn off the pipe. This also led to an inspection of the premises.

14. On Monday 17 September 2012, members of the management committee of the body corporate of the building (including Mr Ginter) and Mr Mellick attended a meeting at the premises. Trico was instructed by the body corporate not to do any more work on the premises until approval from the Council had been obtained. Mr Mellick said that Trico complied with this instruction and did nothing further to the ceiling of the mezzanine level.

15. However, there does seem to have been other work associated with installation of a new metal framework in bay 3 to install a new sprinkler system and to support a new suspended plasterboard ceiling. The Council alleged that in the course of the installation of this metal framework new holes were made or existing holes enlarged in the pressed metal ceiling and cladding on the fascia.

16. The Council relied on the evidence of Mr Ginter. Mr Ginter initially said that when he visited the premises on 11 December 2012 he noticed a large hole in the metal ceiling in bay 3 where, on 17 September 2012 he recalled there had been an intact ceiling. On cross-examination, Mr Ginter was shown a photograph taken around 14 September 2012 showing a hole in the ceiling in bay 3 in the same location as the hole Mr Ginter said he saw and had photographed on 11 December 2012.

17. Mr Ginter said he did not inspect the size or dimensions of the hole in the ceiling on his visit on 11 December 2012. However, Mr Ginter said he had looked at the holes that had been there beforehand in order to provide advice on the number of metal ceiling panels (of 4 ft by 2 ft) that would be required to restore the ceiling in bay 3. He thought he would have noticed if there had been big gaps in the ceiling.

18. Later, after Mr Ginter was shown and compared the photographs, he accepted that the size and dimensions of the hole shown in the photograph of 14 December 2012 might be the same as the hole in his photograph (image 2) of 11 December 2012.

19. Mr Mellick also gave evidence about this hole in the metal ceiling in bay 3. He said, as a result of the events of 15 and 16 September 2012, and in particular the flooding of the ground floor camera shop, he attended about 20 meetings at the site. He observed the ceiling at these meetings. He said the ceiling was littered with holes. He said he did not see any enlargement of the holes over the course of his 20 meetings.

20. The Council has not established, to the requisite standard of beyond reasonable doubt, that the hole that existed in the metal ceiling in bay 3 on 14 September 2012 was enlarged by Trico after 17 September 2012 and before 11 December 2012. Mr Ginter’s initial evidence that the hole he observed on 11 December 2012 did not exist on 17 September 2012 was proven to be incorrect.

21. There is no evidence of the actual size or dimensions of the hole on 17 September or on 11 December 2012. The photograph of the hole taken on 14 September 2012 is from a distance and at an oblique angle, so that the perceived width of the hole is foreshortened. Mr Ginter’s photograph of the hole, taken on 11 December 2012, is taken more directly underneath the hole. It is not possible to compare the widths of the holes in the respective photographs. Mr Ginter accepted in cross-examination that the size and dimensions of the hole depicted in each photograph were about the same. Mr Mellick had more occasions to observe the condition of the ceiling at his 20 meetings on the site during the period. He did not observe any enlargement of the existing holes, including this one. There is also no direct evidence of any work done to the hole to enlarge it.

22. The Council also alleged that new holes had been punched through the pressed metal fascia on the southern side of the beam between bays 2 and 3. The Council again relied on the evidence of Mr Ginter. Mr Ginter observed, on 11 December 2012, that there was a metal framework that had a piece abutting the beam. Mr Ginter thought that there were holes punched in this piece through to the pressed metal fascia of the beam.

23. In cross-examination, Mr Ginter accepted that he could not see the holes, but that was because they were within the channel of the piece. Mr Ginter accepted that he had made a deduction that there must be holes for mechanical fixing because he could not believe that they would have used double sided tape to fix the piece to the beam.

24. Mr Mellick denied that there were any holes punched in the pressed metal fascia of the beam. He said that the metal framework for the suspended plasterboard ceiling was attached by rods from the joists through the existing holes in the metal ceiling. Mr Mellick said the weight of the suspended plasterboard ceiling and the metal framework would be too great to be mechanically fixed (such as by screws) to the beams, and it would be pulled off.

25. Mr Mellick looked at the photographs showing the piece of the new metal framework abutting the beam and said that he could not see any mechanical fixing points. If the new framework were to have been mechanically fixed to the beam, he said he would have expected to see a line of fixing points, but there were none.

26. The Council has not established beyond reasonable doubt that Trico punched holes in the pressed metal fascia of the beam between bays 2 and 3. Mr Ginter’s evidence does not establish that there were actually holes punched. Rather, he simply made a deduction that holes were punched because he assumed that double sided tape would not have been used to fix the piece of the framework to the beam.

27. I accept the evidence of Mr Mellick that in fact the framework was attached by a different means of rods inserted through the existing holes in the ceiling. The piece observed by Mr Ginter was pushed up against, but not mechanically fixed to, the beam. Hence, it was not necessary to punch holes through the metal fascia of the beam.

28. The consequence of the above findings is that the conduct constituting the offence committed by Trico is limited to the demolition of the pressed metal ceiling in bays 1 and 2 over the weekend of 15 and 16 September 2012.

Subsequent events to remedy the damage

29. On 5 November 2012, Mr Patrick George made application to the Council for consent to carry out internal and external alterations to the mezzanine level of Reid House.

30. The development application proposed two different types of works for the ceiling in the mezzanine level. For bays 1 and 2, it was proposed to ‘reinstate’ new pressed metal ceilings (ceiling type A) to replace the ceiling that was removed on 15 and 16 September 2012 and for bays 3, 4 and 5 it was proposed to retain the existing fabric of the pressed metal ceiling and install a new plasterboard ceiling over it (ceiling type B).

31. A statement of heritage impact by heritage consultants accompanied the development application. That statement noted that:

The condition of the pressed metal ceilings is very poor due to extensive damage caused by the installation, and successive changes to, services and by later dropped ceilings. A large part of the 1906 ceiling was inadvertently removed during stripping-out works.

32. On 11 February 2013, the Council granted development consent to carry out the alterations and additions to the mezzanine level of Reid House, subject to conditions. One condition (Schedule 1A(2) of development consent D/2012/1865) required the design of the building to be modified as follows:

(a)   The proposed new pressed metal elements for ‘Type A ceilings’ including ceiling panels, beam fascia and soffit panels, cornices (including cornice corners), cover beads and modillions, are to be of the exact same pattern as the original that have been demolished. Sample sections or drawn details at 1:5 scale should be submitted. These are to be left as the exposed finish and painted.

(b)   The existing original pressed metal ceilings (including ceiling panels, beam fascia and soffit panels, cornices (including cornice corners), cover beads and modillions) in the Zone marked Type B are to be fully restored. Details of the methodology are to be submitted.

33. On 30 May 2013, the Council approved an application to modify the development consent to change the wording of certain conditions, including those dealing with the ceiling. Condition 2(a) was modified to read:

The proposed new pressed metal elements for ‘Type A ceilings’ including ceiling panels, beam fascia and soffit panels, cornices (including cornice corners), cover beads and modillions, are to be similar in character and scale to the existing components that have been demolished. These are to be generally in accordance with drawings CD01(A), CD02(A), CD102(A) and CD103(A) prepared by Lawton Hurley Pty Ltd, as approved by Council emails dated 28 February 2013 and 14 March 2013.

34. The development was then carried out in accordance with the development consent (as modified), including installing the new pressed metal ceiling in bays 1 and 2 and restoring the existing pressed metal ceiling in bays 3, 4 and 5.

35. A certificate of practical completion was issued for the works at the premises on 12 June 2013.

The offence provisions

36. At the time of commission of the offence on 15 and 16 September 2012, Sydney Local Environmental Plan 2005 (‘LEP’) applied to the land. Reid House was a heritage item listed in sch 8 of the LEP. Clause 68 of the LEP provided that certain types of development could only be carried out with development consent, including:

(a)   demolition of a heritage item or building in a heritage streetscape,

(b)   structural or non-structural alterations to the exterior or interior of a heritage item.

37. “Demolish” a heritage item was defined in the LEP to mean “to damage, deface, destroy, pull down, dismantle or remove it in whole or in part”.

38. The damaging, destroying, pulling down, dismantling or removal of a ceiling of a building listed as a heritage item involves the demolition of the heritage item as well as the making of a structural or non-structural alteration (depending upon the extent of the work) to the heritage item.

39. As a consequence, Trico’s action of demolishing the pressed metal ceiling in bays 1 and 2 of the mezzanine level of the listed heritage item of Reid House, without first obtaining development consent, was in breach of cl 68 of the LEP and hence s 76A of the EPA Act. By doing a thing that was forbidden to be done by s 76A of the EPA Act, Trico committed an offence against s 125(1) of the EPA Act.

Purposes of sentencing

40. Section 3A of the Crimes (Sentencing Procedure) Act 1999 (‘CSP Act’) provides that the purposes of imposing a sentence on an offender include, of relevance to the offence committed by Trico:

(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,

(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.

41. The sentence of the Court is a public denunciation of the conduct of the offender. The sentence must ensure that the offender is held accountable for his or her actions and is adequately punished or given his or her just desserts.

42. The sentence needs to deter the offender from committing similar crimes in the future. This is important for an offender such as Trico which is in the business of construction and accordingly will be called upon to carry out demolition and alteration of buildings that might be protected by environmental planning instruments or development consents, including by being listed as a heritage item. The sentence of the Court needs to deter offenders from taking such action other than in accordance with lawful authority.

41. Although, as I find below, Trico is unlikely to re-offend, because of its genuine remorse and actions taken after the offence to avoid re-offending, this does not mean that there is no need for the sentence to include any component for specific deterrence.

42. Most importantly, the sentence of the Court needs to operate as a powerful factor in preventing the commission of similar crimes by persons who might be tempted to do so by the prospect that, if they are caught, only light punishment will be imposed. This is particularly so in the context of unlawful development, having regard to the policy considerations articulated in a number of cases, including Mosman Municipal Council v Menai Excavations Pty Ltd [2002] NSWLEC 132; (2002) 122 LGERA 89 at [32]-[35]; Sutherland Shire Council v Turner [2004] NSWLEC 774 at [24]; and Carlino v Leichhardt Municipal Council [2005] NSWLEC 198; (2005) 144 LGERA 235 at [32]-[34].

43. For environmental offences, the purpose of sentencing on general deterrence is of central importance. Many of the cases in which courts have so stated are set out in the judgment of Cameron v Eurobodalla Shire Council [2006] NSWLEC 47; (2006) 146 LGERA 349 at [71]-[80] and Gittany Constructions Pty Ltd v Sutherland Shire Council [2006] NSWLEC 242; (2006) 145 LGERA 189 at [103]-[106]. Persons will not be deterred from committing environmental offence by nominal fines: Environment Protection Authority v Capdate Pty Ltd (1993) 78 LGERA 349, 354; Bentley v BGP Properties Pty Ltd [2006] NSWLEC 34; (2006) 145 LGERA 234 at [139]-[141], [150]-[151].

44. There is a need for the upholding of the integrity of the system of planning and development control. This system depends on persons taking steps to obey the law by ascertaining when development consent is required and then obtaining development consent before carrying out development. Development must be carried out in accordance with the terms of any development consent obtained: Gittany Constructions Pty Ltd v Sutherland Shire Council at [104] and [105].

45. The sentencing purpose of general deterrence is particularly relevant where the offender is in a business or industry that undertakes development or action that is regulated by the system of planning and development control. Persons and corporations engaged in demolition, excavation, and building and development work need to be warned by the sentence imposed by courts in cases involving unlawful demolition, excavation, and building and development work that all necessary consents must be obtained and complied with: Kari v Ghossayn Pty Ltd [2006] NSWLEC 532; (2006) 150 LGERA 231 at [68(e)] and Pittwater Council v Scahill [2009] NSWLEC 12; (2009) 165 LGERA 289 at [47].

Objective seriousness of the offence

48. In sentencing for the offence the Court is to consider the objective and subjective circumstances of the offence and the offender, and the aggravating, mitigating and other factors in s 21A of the CSP Act.

49. The objective circumstances of relevance to this case include the maximum penalty, the objective harmfulness of the offender’s conduct (the actual environmental harm caused and the undermining of the regulatory system of development control), the offender’s state of mind and reasons for committing the offence, the foreseeability of risk of harm to the environment, the practical measures to avoid harm to the environment, and the offender’s control over the causes that gave rise to the offence.

Maximum penalty

50. The maximum penalty for the offence is relevant in determining the objective gravity of the offence. It reflects the public expression of the NSW Parliament of the seriousness of the offence. It also provides a sentencing yardstick for the case before the court. A yardstick is an instrument of measurement. The maximum penalty for an offence is used to measure the relevant features of the particular instance of an offence against a worst case.

51. The maximum penalty for the commission of the offence in this case is $1.1 million.

Actual environmental harm caused

52. The objective seriousness of the offence is affected by the objective harmfulness of the offender’s actions. The causing of “substantial” injury, loss or damage by commission of the offence is an aggravating factor: s 21A(2)(g) of the CSP Act.

53. I find that the commission of the offence caused actual objective harm in that part of the original fabric (the ceiling) of a building listed as a heritage item was demolished. The pressed metal ceiling was expressly recognised as part of the heritage significance of the building. The heritage inventory report for Reid House, as accessed in December 2012, noted that the pressed metal ceilings had “high significance”. The currently available heritage inventory report for Reid House states that: “The building’s interiors have significance through retaining a high level of original features including... pressed metal ceiling systems” and that the “pressed metal ceiling systems” have “high significance”.

54. Ms Margaret Desgrand, a senior heritage specialist employed by the Council, opined that:

I consider that the removal of the original pressed metal ceilings and associated components has an adverse impact on the heritage significance of the mezzanine level of Reid House.

As stated previously, the heritage inventory report for Reid House, available to the public at identifies the pressed metal ceilings as being of high significance and therefore need to be retained and conserved.

The removal of the pressed metal ceiling systems has an adverse impact on the heritage character of the mezzanine interior of Reid House and therefore on the heritage significance of Reid House.

55. Ms Desgrand noted the proper approach to conservation of the existing fabric of a heritage building:

I have considered and regularly apply the Australian ICOMOS Burra Charter and its accompanying guidelines in assessing proposed work to heritage items. The Charter and Guidelines are considered the best practice standard for cultural heritage management in Australia. One of the key objectives of contemporary conservation practice is that as much of the significant original fabric of the building should be retained and conserved in order to preserve the essential integrity of the heritage resource for future generations. While any conservation activity will affect the building in some way, the aim, consistent with responsible re-use or management aims, should be to minimise the work necessary. In this way the authenticity of the item will be retained as far as possible within a process of evolutionary change and good maintenance practice. Article 3 of the Burra Charter indicates that conservation is based on a respect for the existing fabric of a place and should therefore involve the least possible physical intervention in order not to distort the evidence provided by the fabric. Articles 5 and 6 of the Burra Charter indicate that the management of a heritage place should be based on an understanding of its significance, and that relative degrees of significance lead to different conservation outcomes. Where elements have been identified as of Exceptional or High significance they should be retained and conserved.

56. Finally, Ms Desgrand concluded:

The pressed metal ceilings, cornices and beam linings formerly in the two northern bays are of high significance and therefore should have been retained and conserved.

57. The ceiling that was removed from bays 1 and 2 was damaged. Mr Mellick’s evidence was that the ceiling had many holes and tears in it. Many of these holes and tears, he said, were large. He colloquially described the ceilings as being “in a shocking state”. He formed the view that the ceiling was so damaged that it was irreparable and needed to be removed.

58. Trico submitted that the loss of the original pressed metal ceiling in bays 1 and 2 needed to be put in context. First, it comprised part of but was not the whole of the heritage item. The ceiling removed was from only two of the five bays on the mezzanine level of Reid House. The remaining pressed metal ceiling systems in other bays on the mezzanine level and on other levels of the building were not removed and no other fabric of the heritage listed building was proven to be adversely impacted.

59. Secondly, the ceiling that was removed was damaged. Thirdly, the removed ceiling has been replaced with a new pressed metal ceiling similar in character and scale to the original ceiling, pursuant to the development consent (as modified). Trico noted that it has been awarded a merit award (runner up) for best heritage fit-out (under $5 million) awarded by the Master Builders Association for the mezzanine level of Reid House.

60. I find that the commission of the offence caused actual harm to the heritage item, in that part of the existing fabric of the building that contributed to its heritage significance (as I have described above) was removed. The fact that the existing fabric of the ceiling was damaged did not mean that it did not have heritage significance or that its removal was justified.

61. Although Mr Mellick was of the view that the ceiling was so damaged that it was irreparable, no studies were undertaken in accordance with proper conservation practice to ascertain whether the holes and tears in the existing ceiling could be repaired, either by restoration or by reconstruction, rather than demolishing and discarding the ceiling.

62. Mr Ginter assessed the damage to the existing ceiling in other bays and concluded that damaged panels could be restored or reconstructed so as to conserve the fabric of the ceiling. It is unknown whether such conservation work could have been done to the damaged existing ceiling in bays 1 and 2 because there never were proper studies undertaken. The impact of any proposed change to the existing fabric on the heritage significance of the building needed to be analysed by reference to the statement of significance and the policy for managing the building that needed to be prepared. The analysis might have suggested that any proposed change to the fabric should be modified to better retain the heritage significance.

63. The adverse impact on the heritage significance by the removal of the original ceiling has been partially, but not wholly, remedied by the reconstruction with a new pressed metal ceiling similar in character and scale to the original ceiling. The replacement of the original fabric with new fabric, even of similar character and scale, does not restore the building or wholly compensate for the diminution in heritage significance caused by the loss of the original fabric.

64. I find that the commission of the offence caused actual harm of medium seriousness. Such harm can be considered to be “substantial” and an aggravating factor in terms of s 21A(2)(g) of the CSP Act.

Undermining of the regulatory system of development control

65. The commission of the offence also undermined the objectives and integrity of the regulatory system of development control. Carrying out development without consent or not in accordance with a consent tends to undermine the objects of the EPA Act and the due processes prescribed for prior application, assessment and approval of the carrying out of development.

66. Offences which undermine the integrity of the regulatory system are objectively serious. Use of the criminal law ensures the credibility of the regulatory system.

67. The actions of Trico in demolishing part of the original fabric of the heritage listed Reid House without first applying for and obtaining development consent offended against the legislative objective expressed in the statutory offence and also thwarted the attainment of the objects of the Act.

68. Trico by its actions foreclosed the opportunity for prior assessment of the action of removal of the original pressed metal ceiling and the option of the Council refusing consent to the removal because of any unacceptable impacts on the heritage character of the mezzanine interior and the heritage significance of Reid House. The option of preserving and restoring the damaged existing pressed metal ceiling of bays 1 and 2 was also foreclosed by Trico’s action of demolition of the ceiling.

No heightened state of mind or financial gain

69. A factor to be taken into account in determining the objective seriousness of a strict liability offence, such as the offence against s 125(1) of the EPA Act, is the state of mind of the offender. A strict liability offence that is committed intentionally, recklessly or negligently will be objectively more serious than one not so committed.

70. Another factor increasing the objective seriousness of an offence is if the reason for commission of the offence is to make a profit or to save incurring an expense, or to avoid the cost of obtaining and implementing a statutory permission such as a development consent. The committing of an offence for financial gain is an aggravating factor: s 21A(2)(o) of the CSP Act.

71. Mr Mellick of Trico explained that prior to Trico demolishing the ceiling in bays 1 and 2 of the mezzanine level, he was unaware that Reid House was a listed heritage item. He was not told by the George Group that it was a listed heritage item. His observations of the condition of the mezzanine level, and in particular the suspended ceiling and upon exposure the pressed metal ceiling, did not alert him to the fact that it might be a listed heritage item. It did not occur to him that the taking down of either the suspended ceiling or the pressed metal ceiling in bays 1 and 2 would have required development consent.

72. Mr Mellick accepted, however, that with hindsight, he should have checked whether Reid House was listed as a heritage item under the LEP. He knew that most heritage listed buildings are listed in a schedule of the LEP and he could have accessed that schedule to check whether Reid House was listed. Mr Mellick accepted that, if he had known that the building was a heritage listed item, he would not have removed the ceiling without development consent.

73. Mr Mellick did not say, and no other evidence established, that Trico removed the ceiling to make a profit or to save incurring an expense, such as the cost of applying for and obtaining development consent.

74. I find that the Council has not established, beyond reasonable doubt, that Trico intentionally, recklessly or negligently carried out the demolition of the ceiling in breach of the requirement to obtain prior development consent or for financial gain. A mistake was made in demolishing the ceiling, but it was not done so with a heightened state of mind or to make a profit or to save incurring an expense.

Foreseeability of risk of environmental harm

75. Trico could reasonably have foreseen that its action in demolishing the ceiling in bays 1 and 2 that constituted the commission of the offence would be likely to cause harm to the heritage listed building. On the evidence, Trico did not actually foresee this harm, because of its ignorance that the building was a listed heritage item. However, a reasonable person in Trico’s position would have made enquiries that would have revealed that the building was heritage listed and hence would have foreseen that removing part of the fabric of such a building would cause harm to the heritage significance of the building.

Practical measures to avoid environmental harm

76. There were practical measures that Trico could have taken to have avoided that harm. Trico could have checked whether the building was listed as a heritage item under the LEP and, upon ascertaining that it was so listed, ensured that development consent was sought and obtained before carrying out the demolition of any ceiling in the building.

Control over causes of offence

77. Trico had control over the causes that gave rise to the offence. Its work crew demolished the ceiling.

Conclusion on objective seriousness

78. In conclusion, considering all of these objective circumstances, I find that the objective seriousness of the offence is at the low end of the range for this type of offence.

Subjective circumstances of the offender

79. Within the limits set by the objective seriousness of the offence, the Court may take into account factors personal to Trico. These include in this case the lack of prior convictions, the plea of guilty, the remorse shown by the offender and the unlikelihood of re-offending.

No prior convictions

80. Trico does not have any prior convictions for any environmental offences: see s 21A(3)(e) of the CSP Act.

Delayed plea of guilty

81. Trico has pleaded guilty to the offence, a fact the Court is required to take into account: s 21A(3)(k) and s 22(1)(a) of the CSP Act. A plea of guilty has utilitarian value to the criminal justice system. A court takes account of the utilitarian value of the plea of guilty by imposing a lesser penalty than it would otherwise have imposed: s 22(1) of the CSP Act. However, a lesser penalty must not be unreasonably disproportionate to the nature and circumstances of the offence: s 22(1A) of the CSP Act.

82. In determining the extent of any discount that should be given for a plea of guilty, the court is required to consider when the offender pleaded guilty or indicated an intention to plead guilty: s 22(1)(b) of the CSP Act. As a general rule, the earlier the plea, the greater the discount, while the later the plea, the lesser the discount: R v Thomson; R v Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383 at [160]; R v Stambolis [2006] NSWCCA 56; (2006) 160 A Crim R 510 at [8]-[13]; R v Borkowski [2009] NSWCCA 102; (2009) 195 A Crim R 1 at [32]; Morton v R [2014] NSWCCA 8 [32]-[35].

83. In this case, there was a delay in Trico entering its guilty plea. Trico originally entered a plea of not guilty to the charge in the original summons. A trial was embarked upon on 10 and 11 November 2014. Around midday on the second day of the trial, the Council applied for leave to amend the charge dates of the summons. The summons originally charged that the demolition of the ceiling occurred between about 18 September 2012 and about 12 December 2012. In fact, it occurred on the weekend of 15 and 16 September 2012. The Council sought to amend the charge date to commence on 15 September and end on 11 December 2012. Trico opposed leave being granted.

84. The Court heard argument on the application for leave to amend the summons on 11 and 12 November 2014. The Court gave judgment on the application on 13 November 2014. The Court granted leave and the summons was amended to change the dates within which the offence was alleged to have been committed. Trico then sought an adjournment to consider its position in light of the amendment of the charge period. The Court granted an adjournment to 18 November 2014. On 18 November 2014, Trico withdrew its plea of not guilty and instead entered a plea of guilty to the charge as amended.

85. The Council submitted that this delay in the entry of the guilty plea reduced the utilitarian value of the plea of guilty to be at the lower end of the 10 - 25% range held to be appropriate for a discount in R v Thomson at [152], [160].

86. Trico submitted that it was entitled to defend the original charge because the charge date in the summons did not coincide with when the offence occurred. However, after the Court granted leave to the Council to amend the charge dates to coincide with when the offence occurred, Trico no longer had a reasonable defence and it therefore changed its plea from not guilty to guilty. This was done within a week of the amendment of the summons and should be considered to be done at the earliest opportunity after the summons was amended. Trico therefore submitted that it should still be entitled to a discount at the higher end of the range for entering a plea of guilty to the amended charge at the earliest opportunity. Trico ultimately submitted that the discount should be 15%.

87. I find that the utilitarian value of Trico’s plea of guilty is reduced by the delay in Trico entering the plea of guilty. It may be that, on one view, the delay in the plea of guilty was not Trico’s fault. The prosecutor had specified in the charge the commencement date of the period in which the offence was alleged to be committed as 18 September 2012, which was three days after the conduct constituting the offence was actually first committed on 15 September 2012, but then at the trial applied for and obtained leave to amend the commencement date to be 15 September 2012 so as to include the conduct within the charge period. Trico pleaded guilty within a week after the charge was so amended. This might be considered to be the earliest opportunity.

81. Generally, however, the reason for the delay in entering a guilty plea is irrelevant because, if a guilty plea is not forthcoming, the utilitarian value to the criminal justice system of the guilty plea when ultimately made is reduced: R v Borkowski at [32]; Morton v R at [32], [33].

82. Hence, by way of examples, the utilitarian value of a delayed guilty plea is less and consequently the discount is reduced where there is a plea bargain, or where the offender is waiting to see what charges are ultimately brought by the prosecutor, or where the offender has delayed the plea to obtain some forensic advantage: R v Borkowski at [32].

83. Another example is if a plea is entered a long time after a person is first charged, but at a time when a lesser charge is substituted for a greater charge. The advantages to the criminal justice system are less, even though the plea might have been entered at the earliest opportunity after the lesser charge was substituted. Less advantages to the criminal justice system justify a smaller discount: R v Dib [2003] NSWCCA 117 at [5]; Morton v R at [32]. In the last example, the delay in the plea of guilty is not the offender’s fault. However, the lower discount “is consistent with the nature of the discount as being at least in part a recognition of practical advantages, and not merely a recognition of mitigation of culpability”: R v Dib at [6].

84. In this case, the trial commenced and proceeded for a day and a half before an application was made to amend the summons. Trico did not enter its guilty plea until after it was unsuccessful in opposing the amendment to the summons and after an adjournment of a week from the Court’s decision granting leave to the prosecutor to amend the summons. Costs were incurred by and inconvenience caused to the parties, the witnesses and the court system by the trial having to be conducted. The delay by Trico in entering the guilty plea meant that there were less practical advantages to the criminal justice system and greater costs to the criminal justice system than if the plea had been entered early. There was a lower utilitarian value of the plea and hence the discount should be reduced from the maximum of 25%.

85. Nevertheless, the entry of the guilty plea when it did occur thereafter had utilitarian value for the criminal justice system. The trial no longer had to continue and instead a sentence hearing could be conducted.

86. In these circumstances, I consider that the guilty plea still had utilitarian value, although less, and the discount should be reduced from the maximum of 25% to be 15%: see R v Borkowski at [31]; Inspector Selby v University of New South Wales [2013] NSWIR Comm 20 at [20]; Morton v R at [36].

Remorse for the offence

94. Apart from the utilitarian value of a plea of guilty, genuine remorse of an offender is a further mitigating factor. However, s 21A(3)(i) of the CSP Act states that remorse by an offender for the offence will only be a mitigating factor 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).

95. The existence of genuine remorse is also relevant to the weight to be given to individual deterrence and the prospects of rehabilitation of the offender: R v Thomson at [116].

96. I find Trico is remorseful for committing the offence. It has taken responsibility for its actions and acknowledged the harm caused to the heritage building. The harm has also been remedied partially by the installation of ceilings of similar scale and character to those removed. Mr Mellick , a director of Trico gave evidence by affidavit and in court. He said:

On behalf of Trico, I sincerely regret the removal of the heritage pressed metal ceilings in Bays 1 and 2 over the weekend of 15 and 16 September 2012. It should not have occurred, and is totally uncharacteristic of the way Trico intends to go about its business, and has since these events, gone about its business. It will not be repeated.

97. Mr Mellick also said that Trico has taken steps to avoid reoffending:

As a consequence of the events of 15 and 16 September 2012, Trico has invested heavily both in terms of personnel and money to develop, implement and maintain accreditation for International Organisation for Standardization (ISO) management systems for Quality, Safety and Environmental. This involves a series of regular internal and external audits to ensure that all pre-start conditions are being met including obtaining approval from Council. These measures have been taken to prevent an incident like the one which occurred on 15 and 16 September 2012 occurring again.

Unlikely to reoffend

98. Another mitigating factor to be taken into account in determining the appropriate sentence is if the offender is unlikely to re-offend: s 21A(3)(g) CSP Act. I find that by reason of Trico’s genuine remorse for the offence and the steps taken to avoid carrying out development without development consent, Trico is unlikely to re-offend.

Appropriate penalty

99. In determining the appropriate penalty, the Court should be consistent with the pattern of sentencing for like offences. The Council and Trico referred to the sentences imposed in other cases involving demolition of buildings or structures listed as heritage items, including: Mosman Municipal Council v Waratah Village Partners Pty Ltd [2003] NSWLEC 101; City of Sydney Council v Schwartz [2003] NSWLEC 261; Ku-ring-gai Council v Vinci [2007] NSWLEC 287; and Willoughby City Council v BCPD Pty Ltd [2010] NSWLEC 163.

100. I have considered the penalties imposed in these decisions and the objective and subjective circumstances that led the judge concerned to impose those penalties. I consider that the penalties I propose to impose in this case are not inconsistent with those decisions.

101. Considering the purposes of sentencing, balancing the objective and subjective circumstances, and having regard to the pattern of sentencing in other cases involving unlawful development regarding heritage items, I consider that the appropriate penalty is $55,000, which should be discounted by 15% for the utilitarian value of the plea of guilty. This amounts to $46,750.

102. In finding that a fine of this amount is appropriate, I recognise that the fine is only part of the penalty imposed on Trico. I consider below the parties’ respective applications for cost orders in their favour. For reasons I will shortly give, I have determined that the Council should not be ordered to pay costs to Trico by reason of the adjournment but that Trico should be ordered to pay costs (although in a reduced amount) to the Council. I have given consideration to this fact that Trico will be ordered to pay the Council’s costs and the likely amount of those costs in determining the amount of the fine.

Costs

103. Both Trico and the Council seek an order that the other party pay their costs, although under different powers and for different reasons.

104. Trico seeks an order that the Council pay Trico’s costs under s 257F of the Criminal Procedure Act 1986, while the Council seeks an order that Trico pay the Council’s costs under s 257B of the Criminal Procedure Act. Trico seeks in the alternative that the Court exercise its discretion under s 257B to make no order as to costs or, in the further alternative, only order Trico to pay the prosecutor’s costs from 18 November 2014 (ie after Trico entered a guilty plea).

Whether order for costs on adjournment

105. I will start with Trico’s application for an order for costs under s 257F of the Criminal Procedure Act. Section 257F provides:

(1)   A court may in any proceedings under this Part, at its discretion or on the application of a party, order that one party pay costs if the matter is adjourned.

(2)   An order may be made only if the court is satisfied that the other party has incurred additional costs because of the unreasonable conduct or delays of the party against whom the order is made.

(3)   The order must specify the amount of costs payable or may provide for the determination of the amount at the end of the proceedings.

(4)   An order may be made whatever the result of the proceedings.

106. Trico notes that the proceedings were adjourned: first, from 13 November 2014 when the Court delivered judgment granting leave to the Council to amend the charge period in the summons to 18 November 2014 when Trico withdrew its plea of not guilty and instead entered a plea of guilty to the amended charge, and secondly, from 18 November 2014 to 16 March 2014 which was the first day of the sentence hearing. The precondition in s 257F(1) to the exercise of the power to order costs was therefore satisfied.

107. Trico accepted that subs (2) of s 257F is a limitation on the power under subs (1): an order may only be made under subs (1) if the court is satisfied of the matters specified in subs (2). However, Trico and the Council differed as to how to interpret the matters specified in subs (2).

108. Trico submitted that once the pre-condition in subs (1) is satisfied (“the matter is adjourned”), the court need only be satisfied that “additional costs” have been incurred by Trico “because of the unreasonable conduct or delays” of the Council. Trico submitted that there is no further causal nexus required between the “additional costs” and the adjournment of the matter. The reference to “additional costs” is simply a reference to costs that are incurred because of the unreasonable conduct or delay. Trico referred to the second reading speech of the Courts Legislation Amendment Bill 2006 that introduced s 257F as supporting this construction:

The Act will be amended to provide that the Supreme Court and other higher courts may make costs orders against a party in summary criminal proceedings, on an adjournment, due to unreasonable conduct or delays.

109. Trico submitted that in this case there was unreasonable conduct and delays of the Council. The Council commenced the proceedings on 25 July 2013 by summons claiming an order under s 246 of the Criminal Procedure Act in respect of the offence and claiming that Trico be dealt with according to law for commission of the offence.

110. The Council specified, in the summons and in the order sought for Trico to answer the offence charged in the order, a commencement date of the charge period of 18 September 2012, when it knew that the primary conduct of the demolition of the ceiling in bays 1 and 2 of the mezzanine level of Reid House that constituted the offence, commenced on 15 September 2012.

111. The summons commencing the proceedings was accompanied by affidavits that the Council intended to be relied on as establishing prima facie proof of the offence charged. Two of the affidavits that accompanied the summons (those of Mr Ginter dated 9 April 2013 and Mr Pettersson dated 18 March 2013) established that the ceiling in bays 1 and 2 had been removed by Monday 17 September 2012.

112. Mr Ginter, in an email to the Council’s heritage expert, Ms Desgrand, on 11 December 2012 noted that: “Over the course of a single weekend they demolished/destroyed 50% of the original pressed metal ceilings on the floor.” The “single weekend” was the weekend of 15 and 16 September 2012. Mr Ginter’s email was annexed to Ms Desgrand’s affidavit dated 24 July 2013, which also accompanied the summons commencing the proceedings. Mr Pettersson also established that the ceiling had been there on 12 September 2012.

113. The Council’s solicitor had also been informed by Mr Appadoo, a compliance investigator with the Council, on 19 December 2012 that “most of the pressed metal ceilings were removed after the water damage before 14/09/12,” and sometime between 19 and 21 December 2012, that when Mr O’Brien, who was appointed to replace the entire sprinkler system within the mezzanine level, commenced work on 17 September 2012, “the ceiling was completely removed.”

114. In these circumstances, Trico submitted, the Council’s conduct in specifying in the summons and the order that the commencement date of the period within which the offence of carrying out the development of demolishing the ceiling of the mezzanine level of Reid House without development consent was 18 September 2012, rather than 15 September 2012, was unreasonable. Trico submitted that the Council’s conduct in delaying making application for leave to amend the summons to the second day of the trial was also unreasonable.

115. The Council filed and served further evidence establishing that the demolition of the ceiling occurred over the weekend of 15 and 16 September 2012. This included a second affidavit of Mr Ginter dated 29 October 2013 in which he referred to and attached his email of 11 December 2012 to Ms Desgrand stating that the demolition of the ceiling occurred over the course of a single weekend.

116. On 29 October 2013, the Council served its statement of facts under s 247E of the Criminal Procedure Act. That statement said that the metal ceiling in bays 1 and 2 was intact on 12 September 2012, Trico was engaged in works over the weekend of Saturday 15 to Sunday 16 September 2012, but by Monday 17 September 2012 the metal ceiling in bays 1 and 2 had been removed (paras 7-10). The Council must have known at this time that the commencement date of the charge period that it had specified in the summons was after the demolition of the ceiling, which constituted the offence, had already occurred, yet the Council delayed until the trial on 11 November 2014 making application to amend the charge period.

117. Trico submitted that this unreasonable conduct and delay of the Council caused Trico to incur costs that it would not have had to incur if the Council had not acted or delayed unreasonably (which Trico said were the additional costs). Trico submitted that the Council, acting reasonably, should have drafted the summons and order to correctly specify 15 September 2012 as the commencement date of the charge period from the outset, but if it had not done so, it should have applied for leave to amend the charge period much earlier than it actually did.

118. Trico identified those categories of costs that it incurred, but it would not have had to incur, had the Council not acted and delayed unreasonably. These categories of costs included: the cost of engaging Mr Gatt, a fire safety engineer, and Mr Swartz, an IT specialist, to give evidence.

119. Trico submitted that Mr Gatt was engaged to establish that the Council could reasonably have formed the opinion that the work of removal and replacement of the fire sprinkler system and installation of fire proofing plasterboard, which caused the ceiling in the mezzanine level to be demolished, was required as a matter of urgency to ensure public safety. Under cl 68(2)(c) of the LEP, development consent is not required for demolition of a heritage item “if in the opinion of the consent authority, the proposed development is required as a matter of urgency to ensure public safety.”

120. Trico submitted that it engaged Mr Gatt to give this evidence because the charge period in the summons excluded the demolition of the ceiling in bays 1 and 2 and only included the alleged enlargement of the hole and punching of new holes in the ceiling and cladding in bay 3. Trico considered it worthwhile incurring the cost of engaging Mr Gatt to defend the charge when the charge period was drafted so as to be limited to only the alleged damage to the ceiling in bay 3. However, it submitted that it would not have incurred those costs if the charge period had, from the outset, been drafted so as to include the demolition of the ceiling in bays 1 and 2. Hence, Trico submitted, the costs of engaging Mr Gatt were caused by the unreasonable conduct or delay of the Council.

121. Trico engaged Mr Swartz to examine photographs of the mezzanine level to determine when they were taken. The purpose of this evidence was to establish what work was done to the ceiling in the bays within and without the charge period of the summons. Trico submitted that this was a worthwhile exercise when the charge period was drafted so as to be limited to only the alleged damage to bay 3, but would not have been worthwhile if the charge period had been drafted so as to also include the demolition of the ceiling in bays 1 and 2. Again, therefore, Trico submitted that the costs of engaging Mr Swartz were caused by the unreasonable conduct or delay of the Council.

122. Another category of cost Trico submitted was caused by the unreasonable conduct or delay of the Council was the various interlocutory attendances and applications before Sheahan J concerning the timing of Mr Gatt’s evidence. If the summons had correctly specified the charge period from the outset, or had been promptly amended, Trico submitted it would not have engaged Mr Gatt and hence incurred the costs of these interlocutory attendances and applications concerning Mr Gatt’s evidence. Those costs were, therefore, also caused by the Council’s unreasonable conduct or delay.

123. The next category of cost Trico submitted it had incurred because of the unreasonable conduct or delay of the Council was the cost of arguing the Council’s application to amend the summons on 11 and 12 September 2012, with judgment being delivered on 13 September 2012. Trico submitted that if the Council had correctly specified the charge period from the outset, there would obviously have been no need for the Council to have applied to amend the summons to correct the charge period.

124. Alternatively, if the Council had promptly made application to amend the summons, then in all likelihood Trico would not have opposed the application, especially if the application had been made when the limitation period for commencing a fresh prosecution had not expired. There would have been no utility in Trico opposing the amendment because, even if Trico had been successful, the Council could have commenced a fresh prosecution in relation to the offence of demolishing the ceiling in bays 1 and 2. Trico therefore submitted that, either way, it would not have incurred the cost of arguing the Council’s application to amend the summons and that cost too can be seen to have been caused by the unreasonable conduct or delay of the Council.

125. Trico also submitted that all of the other costs of preparing for and running Trico’s defence at the trial that it incurred were caused by the Council’s unreasonable conduct or delay. If the Council had correctly specified the charge date from the outset or promptly amended it, Trico submitted it would have entered a guilty plea and not defended the charge. The costs incurred in defending the charge as originally drafted up to the time when the Council applied to amend the charge period were, therefore, also caused by the Council’s unreasonable conduct and delay.

126. The Council submitted that none of the categories of costs claimed by Trico fell within the limitation in s 257F(2), as none of them are “additional costs” incurred by reason of the adjournment of the proceedings.

127. The Council accepted that the pre-condition in subs (1) was satisfied: the matter was adjourned twice, once from 13 November and the second time on 18 November 2014. The Council also conceded that its conduct in specifying the commencement date of the charge period in the summons and order as 18 September 2012 rather than 15 September 2012, and in delaying making application to amend the charge period until the second day of the trial, could be described as “unreasonable conduct or delays” for the purposes of subs (2). The Council also did not contest that Trico had incurred costs in the categories of costs it claimed.

128. However, the Council submitted that those costs were not incurred by reason of the matter being adjourned and hence were not “additional costs” within the meaning of that term in subs (2). The Council submitted that the reference point for determining whether costs are “additional” is not “the unreasonable conduct or delays of the party against whom the order is made” in subs (2) but rather “if the matter is adjourned” in subs (1). Costs are “additional costs” only if they are incurred by the matter being adjourned.

109. The Council submitted that the statement in the second reading speech relied upon by Trico in fact supported the Council’s construction.

110. In this case, the Council submitted, the categories of costs claimed by Trico cannot be described as having been incurred by the matter being adjourned. They are not “additional costs” - costs that would not have been incurred if the matter was not adjourned but which had been incurred by the matter being adjourned. Rather, the costs were incurred irrespective of the matter being adjourned.

111. The Council submitted that, unless the costs incurred are found to fall within the term “additional costs”, they cannot be the subject of an order for costs under s 257F(1). If the costs are not additional costs, it is irrelevant whether the costs can be seen to have been incurred because of the unreasonable conduct or delays of the party. The causal nexus with the unreasonable conduct or delays that must exist before the Court has power to order costs if a matter is adjourned is only with “additional costs” incurred, not any costs incurred.

112. I agree with the Council’s construction of s 257F and the argument that the costs claimed by Trico are not additional costs that the Council can be ordered to pay. Before a court may order one party to pay costs under s 257F:

1. the matter must be adjourned (“if the matter is adjourned”);

2. the other party must incur “additional costs”; and

3. the Court must be satisfied that these additional costs have been incurred “because of the unreasonable conduct or delays” of the party against whom the order is made.

133. The reference point for determining whether costs are “additional costs” is the adjournment of the matter, not the unreasonable conduct or delays of a party. A cost is an additional cost if it will be incurred if the matter is adjourned but will not be incurred if the matter is not adjourned. It is an “additional” cost in the sense that it is additional to the costs incurred if there is no adjournment.

134. It is only these “additional costs” that the court can order a party to pay. If the costs incurred are not “additional costs” they do not fall within subs (2) and cannot be the subject of an order for costs under subs (1).

135. However, there is a further limitation in subs (2) - the additional costs must have been incurred “because of the unreasonable conduct or delays of the party against whom the order is made”. An order under s 257F(1) cannot be made with respect to every cost that is an additional cost, only those additional costs that are incurred because of the unreasonable conduct or delays of the party against whom the order is made. If the court is satisfied that the additional costs are incurred because of some other cause than the conduct or delay of the party against whom the order is made, or because the conduct or delay of that party falls short of being unreasonable conduct or delay, then the required causal nexus in subs (2) will not be met and the court has no power to make an order that the party pay those costs.

136. Section 257F, therefore, requires costs to have two causal relationships: first, the cost must be incurred by the matter being adjourned - this makes them additional costs; and secondly, these additional costs must be incurred because of the unreasonable conduct or delays of the party against whom the order is made.

137. I do not accept Trico’s construction of s 257F that conflates these two causal relationships into only one. Trico’s construction was that a cost will be “additional” if it is incurred because of the unreasonable conduct or delays of the party against whom the order is made. This gives the word “additional” no work to do - it would be redundant in the subclause. Trico’s construction would result even if the word “additional” were omitted. The only test would be if the cost was incurred because of the unreasonable conduct or delays of the party. If that causal nexus is established, the court could make an order but if it is not established, the court could not make an order - there is nothing additional about the costs that the court can order compared to the costs it cannot order.

138. Trico’s construction also does not give sufficient attention to the link between subss (1) and (2). The order referred to in subs (2) is clearly the order that can be made under subs (1). An order under subs (1) can only be made that the party pay costs “if the matter is adjourned”. Subsection (2) then provides that an order under subs (1) that a party pay costs can only be made if the court is satisfied that the other party has incurred “additional costs”. The use of this term limits the costs that the court may order under subs (1). The court can only make an order under subs (1) that a party pay the “additional costs”. Hence, subs (1) is to be read as empowering the court to order that one party pay the additional costs incurred if the matter is adjourned. This reading then makes plain that what causes a cost to be an additional cost is the matter being adjourned.

139. This requirement that the cost be “additional costs” necessarily must be satisfied before the next requirement in subs (2), that the additional costs be incurred because of the unreasonable conduct or delays of the party, can be satisfied. The court cannot begin to be satisfied that additional costs have the necessary causal nexus with the unreasonable conduct or delays of the party until it has first ascertained what are the additional costs that have been incurred.

140. Applying this construction of s 257F, none of the categories of costs identified by Trico can be described as “additional costs”. They were not costs that would not have been incurred if the matter had not been adjourned but were incurred by the matter being adjourned. The adjournment of the matter had no causal relationship to the incurring of the costs. Hence, the costs incurred were not “additional costs” incurred by the matter being adjourned.

141. Once it is determined that the costs claimed by Trico are not additional costs, the Court has no power under s 257F(1) to order the Council to pay those costs to Trico. It is irrelevant whether those costs were incurred because of the unreasonable conduct or delays of the Council. That only matters if the costs could have been described as “additional costs”.

142. I therefore reject Trico’s application for an order under s 257F(1) that the Council pay the costs of Trico.

Whether award of costs to prosecutor

143. I now turn to deal with the Council’s application under s 257B that Trico pay the Council’s costs of the proceedings. Ordinarily, where a court convicts and sentences an offender for an offence, it is appropriate for the court to order the offender to pay the costs of the prosecutor. However, the court has a discretion not to award costs to the prosecutor or to limit the amount of the costs ordered. Grounds on which a court might exercise its discretion not to order costs or to limit the amount of costs include disentitling, unreasonable conduct or delay of the prosecutor.

144. Trico submitted that the unreasonable conduct and delay of the Council concerning the charge period in the summons justifies the Court exercising its discretion to not order Trico to pay the Council’s costs or alternatively to limit the costs payable to be only from 18 November 2014. Trico referred to the decision in Environment Protection Authority v Truegrain (No 4) [2014] NSWLEC 179 at [138],[139] where the Court limited the costs payable by an offender in certain respects. One of the respects was that the prosecutor was not entitled to an order that the offender pay the prosecutor’s costs incurred in relation to the charge prior to it being embodied in the amended summons. Another respect was that the prosecutor was not entitled to an order that the offender pay the prosecutor’s costs incurred in relation to the interlocutory dispute concerning the duplicity of the unamended charge or the prosecutor’s costs in relation to those parts of the charge that were found by the courts to be duplicitous.

145. The Council submitted that the Court should order Trico to pay costs and without limitation. The Council submitted that the Court would not be satisfied that Trico was genuinely prejudiced by the late amendment of the summons. Alternatively, the Council submitted that the Court would only exclude from the ambit of costs awarded to the prosecutor the costs of the first two days of the trial.

146. I consider that an order under s 257B ought to be made in favour of the Council, but that the costs should be limited to those incurred from 18 November 2014. I find that the Council’s conduct in relation to the drafting of the commencement date of the charge period in the summons to be 18 September 2012 rather than 15 September 2012, when it had knowledge of and had filed evidence that the primary conduct constituting the offence had commenced on 15 September 2012, was unreasonable. Furthermore, the Council’s delay in seeking leave to amend the charge period of the summons until the second day of the trial, given its knowledge and the evidence available to it, was also unreasonable. I accept the submissions of Trico in this regard that I have earlier set out.

147. I consider that this unreasonable conduct and delay is disentitling conduct. However, I do not consider it disentitles the Council from receiving any costs order in its favour but rather it disentitles the Council from being compensated for its costs up to the time when the cause of the unreasonable conduct and delay was remedied. This was when the Court granted the Council leave to amend the charge period and the Council did so. This occurred on 13 November 2014. There was then an adjournment to 18 November 2014. I consider it is just that the Council be compensated for its costs from 18 November 2014, but not for its costs incurred before that date.

Orders

148. I make the following orders:

1. The defendant is convicted of the offence as charged in the amended summons.

2. The defendant is fined $46,750.

3. The defendant is to pay the prosecutor’s costs incurred on and after 18 November 2014, in such amount as may be determined under s 257G of the Criminal Procedure Act 1986.

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Decision last updated: 10 April 2015