Cowra Shire Council v Fuller

[2015] NSWLEC 13

Land and Environment Court

New South Wales

Medium Neutral Citation:	Cowra Shire Council v Fuller [2015] NSWLEC 13
Hearing dates:	4 February 2015
Decision date:	09 February 2015
Jurisdiction:	Class 5
Before:	Pain J
Decision:	The Court makes the following orders: 1. In matter no 50209 of 2014 the Defendant is convicted of the offence as charged. 2. In matter no 50209 of 2014 the Defendant is fined $175,000 to be paid to the Registrar of the Court within 28 days of today's date. 3. The Defendant must pay the Prosecutor’s costs as agreed or assessed.
Catchwords:	PROSECUTION – sentence for plea of guilty to offence of carrying out unlawful development – demolition of building with potential for local heritage significance – deliberate and planned demolition – frustration of defendant’s development intentions on his property did not reduce objective seriousness of his actions – early plea of guilty a mitigating factor
Legislation Cited:	Cowra Local Environmental Plan 1990 Crimes (Sentencing Procedure) Act 1999 s 3A, s 21A, Environmental Planning and Assessment Act 1979 s 76A(1), s 125(1)
Cases Cited:	Axer Pty Ltd v Environmental Planning Authority (1993) 113 LGERA 357 Bentley v BGP Properties Pty Ltd (2006) 145 LGERA 234 Burwood Council v Douehi [2013] NSWLEC 196 (2013) 200 LGERA 152 Blue Mountains City Council v Carlon [2008] NSWLEC 296 Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 Department of Environment and Climate Change v Rae [2009] NSWLEC 137 Department of Environment and Climate Change v Rae [2009] NSWLEC 137 Environmental Planning Authority v Port Kembla Copper Pty Ltd [2001] NSWLEC 223 Gittany Constructions Pty Ltd v Sutherland Shire Council (2006) 145 LGERA 189 Hawkesbury City Council v Johnson (No 2) [2009] NSWLEC 6 Ku-ring-gai Municipal Council v Kizana [2002] NSWLEC 187 Markarian v R [2005] HCA 25; (2005) 215 ALR 213 Mosman Municipal Council v Menai Excavations Pty Ltd (2002) 122 LGERA 89 R v Elfar [2003] NSWCCA 358R v O’Neill [1979] 2 NSWLR 582 R v Thompson & Houlton (2000) 115 A Crim R 104
Category:	Principal judgment
Parties:	Cowra Shire Council (Prosecutor) Gregory Francis Fuller (Defendant)
Representation:	Counsel: Mr I Hemmings SC with Mr R O’Gorman-Hughes (Prosecutor) Mr P McEwen SC with Ms C Lin (Defendant) Solicitors: Bradley Allen Love Lawyers (Prosecutor) Hills Solicitors (Defendant)
File Number(s):	50209 of 2014

Judgment

Sentencing for unlawful demolition of building

1. The Defendant is charged with committing an offence against s 125(1) and s 76A(1) of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) in that he carried out development, being development which the Cowra Local Environmental Plan 1990 (1990 LEP), an environmental planning instrument, provided may not be carried out except with development consent, without a development consent that was in force. The particulars of the offence charged are that:

a.   On or about 7 April 2012 a building known as “Shiel Homestead” on land described as lot 2 DP 541195 located at George Russell Drive Woodstock NSW (“Shiel Homestead”) was demolished.

b.   At all relevant times, the land on which the Shiel Homestead was located was within Zone No. 1(a) (Rural Zone) under the 1990 LEP.

c.   On land within that zone, development comprising the demolition of a building was specified in the 1990 LEP as development which may be carried out only with development consent.

d.   No development consent was in force when Shiel Homestead was demolished.

e.   The development was carried out at the direction of the defendant.

2. The offence is one of strict liability and the Defendant’s mens rea is not an element of the offence.

3. The parties agreed a statement of facts (SOAF) as follows:

3   The Shiel Homestead, when constructed in around 1900 for Joseph Frederick Glasson, was a late Victorian design. It was substantially renovated in the early 1920s or 1930s to a redbrick structure resembling a late Federation style building. Annexed to this Statement of Facts is a bundle of documents (“the Bundle”). A photograph of the Shiel Homestead taken in 2012 prior to its demolition is Tab 1 of the Bundle.

4   The Shiel Homestead was located on Lot 2 DP 541195, otherwise known as 59 George Russell Drive, Woodstock NSW (“the Shiel Property”).

5   The Shiel Property has an area of approximately 22 hectares and forms part of a larger holding of approximately 1650 hectares, known as “Shiel”, which also comprises lots 104 and 166 DP 750416 and lots 10 and 12 DP 820947 (“the Shiel Holding”). The Shiel Property is located on the intersection of the Mid Western Highway and George Russell Drive, Woodstock with a frontage to both roads.

6   The defendant and his wife Sharon Remona Fuller (“Sharon Fuller”) purchased the Shiel Holding from Battunga Pty Ltd (Butterworth family) settling on 1 July 2011 for $6.9 million. They have been the owners of the Shiel Holding since that date.

C.   Planning and Development Control

7   At 7 April 2012:

a) Cowra Local Environmental Plan 1990 (“1990 LEP”) was in force;

b)   Under the 1990 LEP the Shiel Property was zoned Rural 1(a);

c)   Under the 1990 LEP, demolition of a building on land zoned Rural 1(a) was permissible only with development consent;

d)   Under the 1990 LEP, demolition of the Shiel Homestead was permissible only with development consent.

As at 7 April 2012, the demolition of a dwelling was complying development in certain circumstances pursuant to Clause 7.1 of the State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 (“Codes SEPP”).

8   The demolition of the Shiel Homestead on 7 April 2012 was carried out without a development consent or a Complying Development Certificate.

9   As at 7 April 2012:

a)   Pursuant to clause 17A of the 1990 LEP, development consent could only be granted for the erection of a dwelling-house on land zoned Rural 1 (a) if the land comprised a vacant existing holding, or would be consolidated into a single vacant allotment; and

b)   Development consent for the erection of a dwelling-house on the Shiel Property was therefore only permissible under the 1990 LEP if the Shiel Homestead was demolished.

D.   Events prior to the demolition of the Shiel Homestead

10   On 27 October 2011 the defendant, his wife and their daughter Christie attended Cowra Shire Council (“Council”) and met with Mr Roger Brooke to discuss the making of an application for approval to erect 3 sheds on the Shiel Holding.

11   On 9 November 2011 a Development Application to construct shedding for the stud and sales complex on Shiel Homestead was lodged on behalf of the defendant and his wife with Council (“DA101/2011”).

12   On 9 November 2011 whilst at Council’s premises to lodge a Development Application and Construction Certificate for the development of three rural sheds on Lot 10 DP 820947, Sharon and Christie Fuller held a brief discussion with Luke Sheehan, Council’s Manager Building and Regulatory Services. A conversation in the following terms took place:-

Christie Fuller:   How do we go about mum and dad building a new house, where    the old house is, to overlook the sheds? Mum is sick, a double    storey house is no good to her.

Luke Sheehan:   You will have to make an application to knock down and rebuild.       You will have to do the same as you have done for the shed DA.       You will need plans.

Sharon Fuller:   The house is on a separate block, does it matter how close it is       to the boundary?

Luke Sheehan:   Council’s Policy requires a 150 metre aerial spraying setback. This can be reduced if a lesser setback can be justified. There are also some considerations about dwelling entitlements.

Sharon Fuller:   Why, when the old house is already there?

13   In late 2011 the defendant and his wife retained Dale Humphries of Cut ‘N’ Groove Constructions Pty Ltd to assess the options for renovating Shiel Homestead. That retainer was altered for Mr Humphries to seek approval from Cowra Shire Council (“Council”) for the demolition of the Shiel Homestead and the construction of a new dwelling-house in its place.

14   On or about 22 November 2011 Cowra Shire Council Heritage Consultant (David Scobie) undertook a preliminary assessment of Shiel Homestead for the purpose of listing it as a heritage item. David Scobie’s report and preliminary Heritage Inventory assessment is Tab 2 of the Bundle. The Report and assessment was undertaken by Council’s Heritage Consultant without visiting Shiel Property or inspecting Shiel Homestead. The November 2011 Report stated:-

“A Preliminary Inventory form has been compiled based on information    known locally about the site.”

“The site is not listed on the Cowra Shire Heritage Schedule.”

“The site appears to have historic and aesthetic significance as one of the    more substantial architecturally designed residential buildings in the rural    portions of the Shire.”

“Council has limited information about the property and requested an    opportunity from the new owners to visit and investigate the origins and    nature of the building further.”

15   On or about 5 December 2011, Dale Humphries sent an email to Luke Sheehan, Council’s Manager of Building and Regulatory Services, a copy of which is at Tab 3 of the Bundle. In the email, Mr Humphries said:

Hi Luke,

We have been given the job of preparing the documents, and council approval for the knock down demolition of existing residence at Lot 2 DP 541195 for Mr. and Mrs. Greg Fuller. Our clients wish to demolish the existing house in early 2012 and then will build a new home on the same site as the existing property …

16   On 5 December 2011 Michael Carter on behalf of Council forwarded to the defendant and his wife a copy of the David Scobie Report and accompanying preliminary Heritage Inventory form. A copy of that letter is at Tab 4 of the Bundle. That letter stated:-

“Please be advised that the Cowra and District Historical Society have been made aware by the previous owners of your property that that the building and site are of potential heritage significance.

The Cowra and District Historical Society have also brought this matter to the attention of Council’s heritage advisor, Mr David Scobie, who is contracted to provide free heritage advice and assistance to members of the community. Mr Scobie is interested in visiting the property to investigate the origins and the nature of the building further and has prepared a Preliminary Report which is attached for your information.”

17   On 7 December 2011 the Council sent a letter to Dale Humphries, prepared by Dean Steward, Council’s Land-Use Planner, in response to Mr Humphries’ email. The letter stated that:

3. The proposal to demolish the existing dwelling and construct a new dwelling on Lot 2 DP 541195 requires the development consent of Council. There is information available to Council to suggest that the existing dwelling may be of heritage significance. This will need to be fully investigated as part of the development application process…

4. Should the Council grant consent to the demolition of the existing dwelling on Lot 2 DP 541195, you are advised that there are currently no provisions within Cowra Local Environmental Plan 1990 which would allow the Council to consent to the erection of a replacement dwelling.

5. Should Mr. & Mrs. Fuller still wish to pursue the demolition of the existing dwelling on Lot 2 DP 541195 and construction of a replacement dwelling in a similar location, there are a number of options which are available to be explored with Council, including:

a. The carrying out of a boundary adjustment with adjoining land…to increase the size of Lot 2 DP 541195 to a minimum area of 400 hectares. Clause 17(b) of Cowra Local Environmental Plan provides that Council may consent to the erection of a new dwelling-house on a single vacant allotment that is zoned 1(a) Rural and has an area of not less than 400 hectares.

or,

b. investigation of potential existing-use rights associated with the use of Lot 2 DP 541195 for dwelling related purposes…

A copy of that letter is at Tab 5 of the Bundle.

18   By 31 January 2012 the construction of the new shedding and cattle yard complex on Shiel Holding was substantially commenced. This work included three sheds, a cattle yard complex and a new electrical transformer with underground power. Total outlays by the defendant and his wife for these works exceeded $600,000.00.

19   On 31 January 2012, Glenn Oakley, Council’s Manager, Planning Services, and Luke Sheehan attended a meeting at Council’s offices organised by Dale Humphries. Mr Humphries, the defendant and Sharon Fuller were in attendance. At that meeting, a conversation to the following effect took place:

Humphries:   My name is Dale Humphries and I am the principal of Cut ‘n’ Groove Constructions. These are my clients, Greg and Sharon Fuller. They own the property known as Shiel in George Russell Drive in Woodstock. We would like to talk to you about some issues raised in a letter I received from the Council dated 7 December. We are wanting to build a new house on the property, on the existing site. What is the best way to achieve this?

Oakley:      Have you considered the option set out in our December letter to do a boundary adjustment?

Sharon Fuller:   One of the reasons we bought the property was because the old house was on a separate title. If something happened to Greg I have got my own house on a separate lot, Christie then gets the rest of the farm. We don’t have to subdivide the house off for me. Christie can keep running the farm as normal without worrying about Greg’s Estate. I don’t want to make the lot any bigger.

Greg Fuller:   We have already built the sheds and yards. We need our home to overlook them.

Oakley:      Initial investigations revealed that this building likely has some heritage significance. Any development application for demolition should be supported by a heritage study prepared by a qualified consultant. The study should consider all options including retention of the building.

Sharon Fuller:   There was never any mention of heritage on the 149 Certificate when we purchased the property.

Oakley:       There may not be any listed heritage items on the property. This does not mean that heritage considerations are irrelevant. The building may still have heritage significance.

Sharon Fuller:   If we were told it was heritage, we wouldn’t have purchased it. How can you bring it up now?

Luke Sheehan:   As part of all development applications, Council must take heritage into consideration even if there is no listed heritage items on the property. Council has an obligation to investigate the heritage significance of a building and to take that into consideration as part of the DA process.

Oakley:      Any development application for demolition should be supported by a heritage study prepared by a qualified consultant. The study should consider all options including retention of the building. You should contact Council’s heritage consultant.

Sharon Fuller:   Are you telling me you want us to use Council’s heritage people here in Cowra? Am I allowed to get my own consultant?

Oakley:      We would recommend you contact Council’s consultant for advice as he may have local knowledge of the building. However you may use the consultant of your choice in support of your application.

Dale Humphries:   The restoration of the building is cost prohibitive. The owners would prefer to have a new dwelling on site.

Sharon Fuller:   We are wasting our time here. We are not getting anywhere.

We are going around in circles. I am not having that house there overlooking the bull and sale complex.

Sharon or Greg Fuller, in the presence of the other, said “That building is coming down.”

The meeting concluded and all parties left the meeting room. Luke Sheehan provided Dale Humphries with copies of the Development Application Guide and applicable application forms. Greg and Sharon Fuller subsequently met with Dale Humphries in the Council car park some five to 10 minutes later.   

20   The Mayor of Cowra Shire Council, Bill West, had a number of telephone conversations with the defendant about his plans for the Shiel Holding, the first occurred in around February 2012. The remaining conversations occurred in mid to late March. In a number of those conversations, the defendant expressed his frustration at the manner in which his proposal to demolish the Shiel Homestead and replace it with a new dwelling was being handled by Council staff.

In one particular conversation which took place around late March 2012, the defendant said words to the Mayor to the following effect:

We bought the property in good faith. There was no mention of heritage issues at the time we purchased it. Heritage was only raised after we had bought the property and started building the sheds. The cost of renovating the old house is prohibitive.

The Mayor recalls responding to Mr Fuller in the following terms:

West:   There may be options you could look at but these need to be discussed between you and Council staff who are in possession of the appropriate information.

Mr Fuller has no recollection as to whether or not this statement was made.

21   On 1 February 2012 the defendant and his wife engaged Alan Wells of Wells Environmental Services Pty Ltd to prepare a Development Application on their behalf to seek the demolition of the old homestead and the construction of new residential premises. Wells Environmental Services were requested to obtain a heritage assessment for the Shiel Homestead to accompany the development application.

22   On 1 March 2012, Paul Rheinberger, an historical archaeologist, was approached by Wells Environmental Services to provide a fee proposal to report on the heritage significance of the Shiel Homestead. This report was to accompany the development application to demolish the Homestead and erect a new dwelling in its place.

23   On 13 March 2012, Gary Freeland, a planning consultant with Wells Environmental Services, attended Shiel Homestead and took a series of photographs. He further attended a meeting at Council’s Chambers with Luke Sheehan and Glenn Oakley. At the meeting, Mr Oakley advised Mr Freeland that the Shiel Homestead was likely to have heritage significance and that a professional assessment would need to be undertaken to determine the level of that significance. Mr Oakley further stated that alternatives to demolition would also need to be investigated.

24   On 15 March 2012 Gary Freeland provided an updated scope of engagement to Paul Rheinberger. He requested Paul Rheinberger to issue a revised fee proposal. Paul Rheinberger issued the revised fee proposal on 26 March 2012.

25   On 28 March 2012, Gary Freeland instructed Paul Rheinberger to commence the heritage assessment of the Shiel Homestead. A site visit by Paul Rheinberger to the Homestead was proposed for Monday 2 April 2012.

26   On 28 March 2012 Michael Carter, Council’s then Director of Environmental Services, had a telephone conversation with the defendant to the following effect:

Carter:   Hello, my name is Michael Carter and I am the Director of Environmental Services at Cowra Shire Council. I would like to speak to you about your future intentions for Shiel Homestead.

Fuller:   What do you want to know?

Carter:   I have been advised that you want to demolish the Homestead, and I wanted to explore with you options to protect the building from demolition.

Fuller:   I’m happy to talk but I want you to know that the house is still coming down. I have been talking to Luke and some other bloke. What are you to them?

Carter:   I’m the Director of Environmental Services. I’m their boss.

Fuller:   That’s good. I’ve been wanting to clear up whether I can build a new house after I demolish the old house.

Carter: There is no provision under the Cowra Local Environmental Plan 1990 prohibiting the replacement of a dwelling-house with a new dwelling. There are also three dwelling entitlements on the Shiel property that can be used.

Fuller:   So if I lodge a DA for demolition and a new house, the Council would approve it?

Carter:   Council would consider a DA for the proposal but the heritage issues associated with the demolition of the Shiel Homestead might not result in a Council decision to support the DA.

Fuller:   Yeah I know about the heritage issues but I have got the best heritage consultant in the business to prepare a report on the house saying it can go. So why is it a problem for Council when an expert is saying it’s ok?

Carter: Council still has an obligation under section 79C of the Environmental Planning and Assessment Act to consider the heritage implications of a development proposal. Council’s heritage advisor has highlighted to me the heritage significance of Shiel and has recommended the building be preserved.

Fuller:   That house is still coming down.

Carter:   Why do you have such strong views on demolition? Have you considered selling the house to someone else?

Fuller:   We looked at selling to someone in town but we weren’t going to be able to recover costs to remove even the water pumps.

Carter:   We could look at subdivision to make the house block smaller so that the pumps could be retained on the balance of the farm.

Fuller:   No, look it’s too late. We have done our farm management plan and have built the sheds and cattle yards below the house block. I don’t want to be down at the yards and look up and see that fucking building.

Carter:   OK, but it’s my job in this to see if there are ways that Council can help to change your mind if at all possible.

Fuller:   So what would happen if I just knocked the house over? Are you going to put me in jail if I demolish the house on the weekend?

Carter:   No Greg, I won’t put you in jail. Could we discuss this matter with you in more detail with the Mayor and General Manager?

Fuller:   I am busy in Sydney at the Easter Show for the next week or so with cattle, so it will have to be later, after the show.

Carter:   How about the 16th of April?

Fuller:   Yes, that would probably suit, but I will be bringing my lawyer to the meeting.

Carter:   I will check with the others and get back to you. I will also send a letter confirming what I have said.

27   On 29 March 2012, after a further telephone discussion between Mr Carter and the Defendant, Council sent a letter to the defendant and his wife prepared by Mr Carter. That letter stated:

‘Shiel’ homestead is intended to be included as a heritage item in Schedule 5 of Draft Cowra Local Environmental Plan…

demolition of the building is not something that I could support…

I therefore intend to table a report to Council’s General Committee to be held on 10 April 2012 recommending that a resolution be passed to make an Interim Heritage Order over ‘Shiel’ homestead in accordance with Section 25(2) of the Heritage Act 1977. This order would be valid for up to six months…

the recommendations of the General Committee Meeting to be held on 10 April 2012 will be reported to the Ordinary Meeting of Council to be held on 23 April 2012, where a final determination of this matter will be made.

A copy of that letter is at Tab 6 to the Bundle.

28   On Saturday 30 March 2012 / Sunday 31 March 2012, after the defendant had received Council’s letter of 29 March 2012, Mayor West had a further telephone conversation with the defendant to the following effect:

Fuller:   I’ve got a letter telling me Council is going to put a Heritage Order on Shiel Homestead. I’ve already agreed to meet you when I come back from the Easter Show on 16 April. Council wants a Heritage Order on 10 April.

Fuller:   There’s a heritage consultant going out on Monday. If a Heritage Order is put on the place, I don’t know what I can do with it. I have bought the property in good faith. There was never any mention of heritage. That was only raised after we started doing things.

West:      It’s fair to have the meeting with you before any report goes to       Council. I will talk to Council’s staff and find out about putting       the recommendation back until after 16 April 2012.

Fuller:   Nothing should be done until after that meeting in any case. I have advice that a DA may not even be required for demolition.

West:   It is my understanding that a DA is required.

Fuller:   Bill, what would you do if it was your place?

West:   

I understand how you feel and I’d probably want to knock the bloody thing down too.

29   On 2 and 3 April 2012, Paul Rheinberger inspected the Shiel Homestead. He further attended Cowra Library and undertook research pertinent to his heritage assessment.

30   On 4 April 2012, Mr Rheinberger had a telephone conversation with the defendant to the following effect:

Fuller:      Have you finished at Shiel?

Rheinberger:   Yes. We finished at the house on Tuesday and I have been researching some history and investigating the district since. We are just on our way out of town now.

Fuller:   What happens now?

Rheinberger:   I have to prepare a report.

Fuller:   And what conclusion have you come to?

Rheinberger:   Well I have come to the conclusion that the house has heritage value. I consider it to be significant and rare at the local level.

Fuller:   That’s not good news. And that’s what the report will say? I won’t be able to demolish the house and build there.

Rheinberger:   There are two things to look at there. The first is that there are a number of places you could build on the property and the second is that that sort of assessment doesn’t automatically mean you can’t demolish the house. I can see avenues that would allow demolition; at least, though, you would need to have the building and precinct archivally recorded.

Fuller:   What does that mean?

Rheinberger:   It means that you would commission an archaeologist or heritage architect to go to the property and record all the features of the place by photography, measured drawings and feature drawings and draw the results into a report that could be archived with the local Council, the local library and Historical Society. I routinely also lodge copies of such a report in the State Library of NSW and with the Heritage Branch.

Fuller:   Well, I’ll have to think about that, but it’s an annoying complication. I’m in a hurry at the moment.

31   On 4 April 2012 Bradley Taylor, caretaker of the Shiel Property engaged by the Fullers, had a telephone conversation with the defendant to the following effect:

Fuller:   There’s an excavator arriving on Thursday. I need you to meet the bloke at the sheds. You need to show him where to put it in the hay shed.

Taylor:   Yeah, righto.

Fuller:      Take the Easter weekend off and go fishing.

Taylor:      Thanks, that’d be good.   

32   On 5 April 2012, a prime mover, low loader and a large yellow or orange excavator were delivered to the Shiel Holding.

33   On or about 5 April 2012, Bradley Taylor had another conversation with the defendant to the following effect:

Fuller:   There is a bloke coming down on Saturday. I want you to be there to unlock the gate for him. I need you to show him where the excavator is. I want it to go up to John’s House and you’ll need to show him the way to take it up there.

[“John’s House” was another house on the Shiel Holding, located approximately    two kilometres to the west of Shiel Property.]

E.   The demolition of the Shiel Homestead

34   The defendant, his wife and daughter Christie in the period from 1 April 2012 to 10 April 2012 were at Homebush Bay, Sydney exhibiting cattle at the Royal Easter Show. The defendant is a steward in the beef cattle section and the breed captain for the Angus breed of cattle.

35   At around 9:00am on 7 April 2012 (Easter Saturday), two men arrived at the Shiel Holding and were shown by Bradley Taylor where to find the excavator and where to take it as directed by the defendant.

36   Shortly after 9am that day the Shiel Homestead was demolished using the excavator. The demolition was carried out by contractors acting at the direction of the defendant.

37   Prior to the demolition:

a)   the hot water service and the electric stove had been removed from Shiel Homestead, these were removed between 15 March 2012 and 1 April 2012. The hot water service was relocated to John’s House, the stove to Bylong Station. This was done at the direction of the defendant.

b)   the Shiel Homestead had not been assessed for the presence of asbestos. Shiel Homestead had been constructed in 1900 and substantially renovated in 1932. An assessment of the rubble failed to find the presence of asbestos.

F.   Events following the demolition of the Shiel Homestead

38   On Tuesday 10 April 2012, after being informed that the Shiel Homestead had been demolished, Michael Carter drove out to the front entrance of the Shiel Property and observed that the Shiel Homestead had been demolished.

39   On Wednesday, 11 April 2012, Michael Carter had a telephone conversation with Sharon Fuller to the following effect:

Carter:   Hi, it’s Michael Carter from Cowra Council, could I speak with you or Greg about Shiel Homestead.

Sharon Fuller:   Greg is not here at the moment.

Carter:   We need to have a meeting to discuss the demolition, the management of wastes and any future development applications for the site.

Sharon Fuller:   I think that should be OK, could you put your requests in writing and send them to ‘Bylong’?

Carter:   No problems, who did the demolition on the weekend?

Sharon Fuller:   You need to put your questions in writing.

Carter:   OK.

40   On 23 April 2012, Sheridan Ledger, Regional Operations Officer for the Environment Protection Authority, had a telephone conversation with the defendant to the following effect:

Fuller:   Hello, my name is Greg Fuller. I have just pulled down a house and would like to use the demolition waste as fill material in a drainage line. Can I do that?

Ledger:   What is the demolition waste?

Fuller:   Bricks and timber.

Ledger:   Where was the house?

Fuller:   Near the town of Bylong.

Ledger:   I appreciate what you want to do with it but the waste should be disposed of at an appropriately licensed landfill. As you are in Bylong, the closest place that the waste could be disposed of is at the Mudgee landfill. If you like, I can provide you with contact details for the Mid-Western Regional Council’s landfill.

Fuller:   Thanks but there’s no need.

41   On Saturday, 28 April 2012, Gregory Madafiglio, director and owner of Envirowest Consulting Pty Ltd was retained by the defendant to inspect the building waste on the Shiel Property for asbestos. During his inspection that day, he had a conversation with the defendant which included words to the following effect:

Madafiglio:   What do you intend to do with the rubble?

Fuller:      I'm going to relocate it to another part of the property to use as landfill.

Madafiglio:   So what are you going to do with the site now?

Fuller:      I'm going to put up a new house. We are relocating from Bylong.

42   On 3 May 2012, Michael Carter and Michael Ryan, Council’s Ranger, attended the Shiel Property and conducted an inspection. They were shown around the premises by the defendant.

43   During the inspection, the defendant showed Michael Carter and Michael Ryan the waste stockpile which was located on a track off George Russell Drive. While at the stockpile Michael Carter and the defendant had a conversation which included words to the following effect:

Fuller:      Do you want sediment fencing or more contours banks?

Carter:   No, at this stage it is all contained. But we will need to resolve the asbestos issues and agree on what waste can be managed and re-used.

Fuller:   I have contacted EPA and they said waste could be disposed of on site. The asbestos report is being emailed to you this afternoon, I just want to do the right thing and get along with everybody. I don’t want a fight with Council or to go to Court. I’ve had no end of trouble with the house. When I bought it there were no heritage orders on it. I would never have bought the place if it was heritage listed. My wife is in America and is having therapy for cancer…

44   On 18 May 2012 the defendant and his wife lodged an application for development consent for the erection of a dwelling-house on the Shiel Property.

45   On 14 June 2012 Council issued a Notice of Determination of that development application granting consent (“Development Application 43/212”). That consent is Tab 7 of the Bundle.

46   By July 2014, the dwelling under construction pursuant to DA 43/212 had reached lock up stage.

G.   Shiel Homestead

(i)   Heritage Significance of the Shiel Homestead

47   Within the criteria of the NSW Heritage Council, Shiel Homestead possessed rare heritage significance at the local level, where the locality was defined as the Cowra Local Government Area. Despite a number of alterations and additions over the years, Shiel Homestead retained a high degree of original fabric and the modification did not detract from that significance. It satisfied key criteria for rare, local listing.

48   Shiel Homestead had not been identified in:-

(a)   Cowra Council’s 1990 LEP as of heritage significance;

(b)   the Cowra Shire wide heritage study undertaken in June 2003 as of heritage significance;

(c)   the 2010 Cowra Shire Heritage Inventory as of heritage significance.

49   In December 2011, David Scobie Architects updated the heritage report on the Shiel Homestead for the Council (“Scobie Report”). A copy of the updated report is at Tab 2a of the Bundle.

50   The Scobie Report was accompanied by a preliminary Cowra Heritage Inventory form completed by David Scobie. The relevant content of the Heritage Inventory is as follows:

Statement of Significance:   A prominent residence which retains key distinctive elements of the two stages of development of this outstanding late Victorian brick house including the garden landscape and associated ancillary buildings including the manager’s residence and shearing quarters.

Historical Notes:   The property was constructed for Mr Joseph Frederick Glasson in 1900.

…

Physical description:   A substantial two storey brick residence with brick colonnade verandah constructed within a substantial garden.

Modification dates:   Major changes were completed in the 1930’s including alterations and additions to change the external appearance from the original late Victorian house with two storey cast iron framed verandah into a larger residence with brick colonnade verandah.

…

Management:   Statutory instrument – list on a Local Environmental Plan (LEP)

Recommended Management: Produce a Conservation Management Plan (CMP)

Further Comments:

Criteria a): The house marks the substantial growth and profitability of agricultural and pastoral pursuits at two important periods: turn of the century for the original residence and associated buildings and then the 1930’s. for the substantial alterations and additions.

Criteria b) Joseph Frederick Glasson.

Criteria c) The building retains the distinctive elements from the original 1900 late Victorian design and the 1930’s alterations marking it out as one of the most substantial architecturally designed rural residences in the shire. The landscape gardens to the front and rear include a range of important cultural plantings, trees and layout.

…

Criteria f) The scale, prominent location and two stages make the building a rarity within Cowra Shire.   

51   The Scobie Report and the accompanying preliminary Cowra Heritage Inventory form were completed without David Scobie attending the Shiel Holding or the Shiel Property, or without inspecting the Shiel Homestead.

52   Paul Rheinberger in his Affidavit of 17 June 2014 advances the following opinions concerning Shiel Homestead based upon his inspection in April 2012:-

“The house (Shiel Homestead) itself appeared to have been modified on a number of occasions since construction was first commenced around 1900. In the early part of the 20th Century, probably around the 1920s, the original verandahs, including the ornate cast iron posts, filigree, balustrades were demolished, possibly because the exposed timber floors had failed. The verandahs were replaced with the redbrick structure that can be seen on the photographs (I took). In the result the classic Victorian New England style, with close visual similarities to Belltrees near Scone, substantially changed to more of a late Federation building.”

“I note the original house itself was actually quite shallow in depth and I    formed the view that it appeared to have been designed as a kind of    architectural façade to promote a sense of grandeur to passers by.    Originally the house had been only two rooms deep. Over the decades,    various additions were made to the dwelling, including more substantial    dining, kitchen and scullery areas on the lower level and a new wet area    of water heating, additional bathrooms and toilets on the upper floor, to    provide better functionality to what had probably been a building of limited    capacity, despite its appearance.”

Key attributes of the Shiel Homestead observed by Paul Rheinberger included:-

a.   An impressive large heavy timber front door flanked on either       side by fixed leadlight glass panels with leadlight high lights;

b.   The stylised initials ‘JFG’’ in glass of the leadlight above the       front door which represented the woolmark of the original owner       of the Homestead, Joseph Frederick Glasson;

c.   Verandahs on both the ground and first floor levels with the       upper verandah enclosed by a waist-height brick wall with       arched risers;

d.   Leadlight bevelled-edge clear panels with coloured insets in the       double swing doors between the entrance hall and a lobby       containing the staircase;

e.   An imposing wood panelled staircase leading to the upper level;       and

f.   Fixed lead light glass panels in the door and fanlight at the       eastern verandah access on the upper level, and in a fixed light       above the upper flight of the staircase

which in the opinion of Mr Rheinberger “were fine examples of their crafts and worthy of preservation.”

“Within the criteria of the NSW Heritage Council the Shiel Homestead possessed rare heritage significance at the local level, where the locality was defined as the Cowra Local Government Area. Despite a number of alterations and additions over the years, the Shiel Homestead retained a high degree of original fabric and the modifications did not detract from that significance. It satisfied key criteria for rare, local listing. It was an example of a substantial multi-storey country residence which was rare in the Cowra Local Government Area. The history of the building, and the three families that had occupied it since its construction, were linked with the social and pastoral history of the Cowra District.”

“My historical and physical context studies lead me to conclude, that in the criteria of the New South Wales Heritage Council, that Shiel Homestead possessed rare heritage significance at the local level, where the locality was defined as the Cowra Local Government Area”

53   A number of photographs of the Shiel Homestead and its features were taken prior to its demolition by Mr Rheinberger. Copies of those photographs are at Tab 8 of the Bundle.

(ii)   The condition of Shiel Homestead in April 2012

54    “Shiel Homestead” was structurally sound. It did, however, require significant restoration work.

55   Paul Rheinberger, based upon his April 2012 inspection of the homestead, made the following assessments:-

•   Cracks in brickwork and plaster work were evident. It was assessed that these cracks were of the nature of settling cracks and that none proposed any threat to the structural integrity of the building. The cracks ranging from hairline in nature to approximately two to three millimetres in width.

•   The underlying timbers and floorboards of the upper verandah were sound.

•   The front and side verandahs on both levels were well designed and built and at least in reasonable condition.

•   The interior rooms looked somewhat the worse for wear with plaster cracks, some water damage likely to have been caused by roof leaks and that the paintwork was in need of restoration. This was especially the case in the kitchen area.

•   The building required significant restoration work but there was a structurally sound platform from which to work.

56   Paul Dresser, a long term resident of the Woodstock area with a close association to both the Lawrence family (owners 1963 to 1970) and the Butterworth family (owners 1970 to 2012) and the selling Agent to the Fullers made the following observations:-

•   Rising damp was evident, particularly on the southern and south eastern sides of the building.

•   The roof had leaked, there was water staining of the ceilings, particularly the upper level. Containers had been observed in an upstairs room to catch this water.

•   The state of repair of the building at best could be classified as ordinary.

57   John Waters, an electrician who worked on Shiel Homestead in the period from around 1975 to 2012 observed that:-

•   The roof was terracotta tiles installed without sarking. The tiles had reached the end of their working life, water ingress into the roof void was inevitable and had occurred.

•   The fibrous plaster ceiling (horse hair plaster) in the upstairs rooms showed evidence of water damage and staining.

•   There was no ventilation or air flow to the underfloor areas of the building, the underfloor areas were damp. There was evidence of damp in the lime plaster walls.

•   The electrical wiring was VIR wiring in metal conduit. This wiring had reached the end of its working life. Further electrical work on Shiel Homestead would require the whole building to be brought up to current electrical standards.

58   Shiel Homestead was inspected by Dale Humphries of the building firm Cut ‘N’ Groove Constructions Pty Limited on behalf of the defendant and his wife. Mr Humphries recorded his observations / assessments in substantially the following terms:-

•   Double storey brick dwelling with verandahs. The Original building had been added to on several occasions.

•   Double brick internal and external walls. Some evidence of cracks in the brickwork.

•   Timber floors: Timber floors had dry rot.

•   Ceiling timbers: The roof timbers were moisture affected and some of the roof members had rotten.

•   Roof tiles: The roof tiles needed to be replaced. The roof leaked.

•   Wet areas: The bathrooms had no water proofing. Drainage and water pipes were also a problem.

•   Plaster work: The internal walls had several cracks in render and in some areas render was drummy and coming off the walls. The ceilings were also damaged from moisture and some had dropped down, the plaster was the horse hair type which is very heavy.

•   Services: Water was also turned off because pipe work was rusted, damaged or blocked.

59   During the defendant and his wife’s ownership up to March 2012:-

(a)   There had been an electric fire in the kitchen. This was associated with the failure of the VIR wiring.

(b)   The external staircase providing access to the rear verandah had collapsed.

(c)   The plumbing connections to the hot water system had failed. Water leaked from the hot water system into the ground floor rooms.

60   Photographs of Shiel Homestead were taken by Gary Freeland on 13 March 2012 in the presence of the defendant. These photos are presented at Tab 9 of the Bundle.

H.   Other Matters Affecting Penalty

(i)   The defendant’s assistance to law enforcement authorities made prior to the proceedings and the conduct of the investigation on behalf of the prosecutor

61 On 19 April 2012 Council sent a letter to the defendant and his wife seeking, pursuant to Section 118B and 118BA of the EP&A Act, information relating to the demolition of the Shiel Homestead. A copy of that letter is at Tab 10 of the Bundle. The letter stated that:-

“I refer to the demolition of Shiel Homestead on Lot 2 DP541195, 59 George Russell Drive, Woodstock.

Council is investigating whether development has been carried out contrary of the provisions of the Environmental Planning and Assessment Act 1979 (EPA Act).

Pursuant to Section 118B and 118BA of the EPA Act Council requires each of you to provide the following information and records by 30 April 2012.

(a)   Information and all records in your possession relating to the demolition of the Homestead, including (but not limited to):-

*   The names and addresses of any person who was involved    directly or indirectly in the demolition;

*   The role of each of those persons in the demolition;

*   The dates and times the demolition occurred;

*   Copies of any consents or approvals in place.

It is an offence under Section 118N of the EPA Act for a person, without reasonable excuse, to fail to comply with the requirements to provide information and records.

62   On 26 April 2012, Messrs Hills Solicitors, on behalf of the defendant, sent a letter responding to Council’s letter of 19 April 2012. A copy of that letter is at Tab 11 of the Bundle. That letter relevantly states:-

Council has sought certain information to be furnished pursuant to Section 118B of the EP&A Act……….

With respect, our client, Gregory Francis Fuller is not at the premises Lot 2 DP541195, 59 George Russell Drive, Woodstock. Accordingly, any request by Council’s officers under this section of the EP&A Act has no statutory authority.

…

The response provided in this letter is predicated upon the basis that Council has made a valid a request under Section 118BA(i) of the EP&A Act.

Council has disclosed the entitlement of Gregory Francis Fuller (the person) to object at the time of furnishing any information or answer in compliance with a requirement under the EP&A Act (Section 122U) to object on the grounds that it might incriminate the person.

Gregory Francis Fuller objects to providing any information or answers to the questions identified in Council’s letter of 19 April 2012 on the grounds that it might incriminate him. Council is requested to confirm that it has accepted that Mr Fuller has validly objected to furnishing information on the grounds that it might incriminate the person with regard to each of the following responses given on behalf of Mr Fuller:-

(i)   Gregory Francis Fuller does not have any information in his possession as to the name and address of any person who was involved directly or indirectly in the demolition (which is not admitted) of “Shiel” homestead. Mr Fuller does not know that “Shiel” homestead was demolished but acknowledges that the homestead is now collapsed building rubble.

(ii)   Gregory Francis Fuller does not have any records in his possession as to the name and address of any person who was involved directly or indirectly in the demolition (which is not admitted) of “Shiel” homestead. Mr Fuller does not know that “Shiel” homestead was demolished but acknowledges that the homestead is now collapsed building rubble.

(iii)   Gregory Francis Fuller does not have any information in his possession as to the role any person had or may have had relating to the demolition (which is not admitted) of or the collapse of “Shiel” homestead...

(v)   In so far as “Shiel” homestead was demolished (which is not       admitted) / collapsed Gregory Francis Fuller is able to state       that:-

a.   This event had not occurred prior to the 26th March             2012 being the last occasion Mr Fuller was at                Woodstock prior to the Royal Easter Show;

b.   This event had occurred prior to the 12th day of April             2012 being the next date upon which Mr Fuller                attended the Woodstock property.

(vi)   Gregory Francis Fuller does not have any information or records          in his possession concerning copies of any consents or             approvals in place relating to the demolition (which is not          admitted) / collapse of “Shiel” homestead.

63   On 28 April 2012 the defendant engaged Gregory Peter Madafiglio, an Environmental Consultant and Site Hygienist to attend the Shiel Holding to assess the rubble for the presence of asbestos. No evidence of asbestos was found in the rubble by Mr Madafiglio.

64   On 3 May 2012 Michael Carter was driving past the Shiel Property when he saw a large amount of dust and a yellow excavator filling a green prime mover with tipper trailer with rubble at the site where the Shiel Homestead formerly stood. Mr Carter then called Council’s Ranger/ Compliance Officer, Michael Ryan, and asked Mr Ryan to drive out to the Shiel Property to accompany him on an inspection of the site. After Mr Ryan arrived, he and Mr Carter were shown around the site by the defendant. While at the site, Mr Carter and Mr Ryan observed:

•   a large pile of mixed demolition waste (bricks, timber, masonry, and fine related dust);

•   a yellow excavator marked with the words “central demolition” parked on the top of the waste pile;

•   no run-off and erosion controls were in place although there were grass verges between the demolition site and watercourses.

[Defendant:    The defendant does not agree that this paragraph is appropriately included in the Statement of Facts as it submits that it is prejudicial.]

65   On 28 May 2012 the Cowra Shire Council resolved to prosecute persons responsible for the demolition of Shiel Homestead.

66   On 25 June 2012 the Cowra Shire Council by its General Manager and its Director Environmental Services signed an Instrument of Appointment and Authorisation in favour of Glenn Jones. This Authorisation is at Tab 12 of the Bundle.

67   Glenn Jones undertook investigations concerning the demolition of Shiel Homestead. In the period from his appointment up to 18 September 2012, he did not contact the defendant, the defendant’s wife Sharon or their daughter Christie to seek information or an interview.

68   On Tuesday 18 September 2012 Glenn Jones held a telephone conversation with Ralph Ward. That telephone conversation was undertaken on a “Without Prejudice” basis.

69   On 19 November 2012 Glenn Jones by letter notified the defendant and his wife that he intended to enter the Shiel Property on 26 November 2012 at 11.30 am for the purpose of inspecting the premises and what remained of the Homestead building. That letter is at Tab 13 of the Bundle. The letter relevantly states:-

“Pursuant to section 118A of the Environmental Planning and Assessment Act 1979 (the EPA Act) I have been authorised by the Cowra Shire Council to enter any premises for the purpose of investigating the demolition of the building known as Shiel Homestead, formerly situated on the land known as the Shiel Property comprising:

*   Lot 2 DP 541195

*   Lot 104 DP 750388

*   Lot 10 DP 820947

*   Lot 12 DP 820947

*   Lot 168 DP750416

I am writing to give you notice that I intend to enter the Shiel Property on 26 November 2012 at 11.30 am for the purpose of inspecting the premises and what remains of the homestead building.”

That letter was accompanied by a copy of Mr Jones’ Instrument of Appointment and Authorisation dated 25 June 2012.

70   On 20 November 2012, Messrs Hills Solicitors sent to Glenn Jones two letters which are at Tab 14 and Tab 15 of the Bundle. The letter at Tab 14 relevantly states:-

I thank you for making available a copy of a Notice issued by you pursuant to Section 118A of the Environmental Planning and Assessment Act, that Glenn Jones has been authorised by the Cowra Shire Council to enter premises for the purpose of investigating certain matters.

I note that the investigation says it relates to “demolition of building known as Shiel homestead”. I confirm my prior advice that we have no information concerning the demolition of the building known as the Shiel homestead but acknowledge that the former Shiel homestead building was found by our clients in a collapsed condition.

71   On 26 November 2012 Glenn Jones inspected the rubble from the demolition of the Shiel Homestead. He was accompanied at times by Mr Ward who had travelled from Maitland. During the course of the inspection, Mr Ward pointed out to Mr Jones a number of pieces of what appeared to be stained glass and a piece of what appeared to be timber. Mr Jones then, with Mr Ward’s agreement, collected from the rubble:-

(a)   A sample of leadlight glass;

(b)   A sample of timber panelling.

72   Subsequent to the inspection of the rubble, “off the record discussions” took place at the machinery shed on the Shiel Holding. This meeting was attended by Michael Carter, Alan Bradbury (Council’s Solicitor), Glenn Jones and Ralph Ward. “Without Prejudice” correspondence was exchanged between Messrs Hills Solicitors and Bradley Allen Love in the period 30 November 2012 to 11 December 2012.

73   By letter dated 3 October 2013 Glenn Jones on behalf of Bradley Allen Love sought information from the defendant concerning the demolition of Shiel Homestead (Tab 16 of the Bundle). That letter was accompanied by a copy of the Instrument of Appointment and Authorisation issued by Cowra Shire Council dated 12 August 2013 (Tab 17 of the Bundle). The letter relevantly states:-

“I am an Authorised Officer under Section 118A of the EP&A Act. A copy of my authority is attached. As an Authorised Officer, I have power, pursuant to Section 118B of the EP&A Act, to require any person who I reasonably suspect to have knowledge regarding the matter that I am investigating to provide information relating to the investigation.

As one of the owners of the premises, I suspect that you may have knowledge, information or records in your possession which may assist me with my investigation.

I require you to provide me with the following information pursuant to Section 118B of the EP&A Act on or before close of business on 18 October 2013.”

The letter then sought information in nine listed categories, seven of which sought the production of documents.

74   Other than by the letter dated 19 November 2012 referred to at paragraph 69 and located at Tab 13 of the bundle, this was the first occasion Glenn Jones had contacted the defendant directly concerning the demolition of Shiel Homestead.

75   On 7 November 2013 Glenn Jones on behalf of Bradley Allen Love issued an identical letter to that issued on 3 October 2013, save that the date by which the information was to be provided was now identified as 21 November 2013. The letter is Tab 18 of the Bundle.

76   The defendant did not, following legal advice received by him, respond to the letters issued by Glenn Jones dated 3 October 2013 and 7 November 2013.

77 On 6 December 2013 Glenn Jones on behalf of Bradley Allen Love by letter notified the defendant that he required the defendant to attend an interview with him to answer questions pursuant to Section 118BA of the EP&A Act (the letter is at Tab 19 of the Bundle). The letter was not accompanied by the authority said to have been attached. The letter was sent to the defendant at Bylong Station, Bylong Valley Way, Bylong by ordinary post. As at 6 December 2013 the defendant was residing at Shiel, George Russell Drive, Woodstock.

This was the first occasion the prosecutor sought an interview under Section 118BA with the Defendant.

78 On 9 December 2013 Glenn Jones on behalf of Bradley Allen Love issued a further letter to the defendant advising the defendant that Glenn Jones required him to attend an interview with him to answer questions pursuant to Section 118BA of the EP&A Act (Tab 20 of the Bundle). This letter was accompanied by the Instrument of Appointment and Authorisation dated 12 August 2013 (Tab 17 of the Bundle). This letter was directed to the defendant at Bylong Station, Bylong Valley Way, Bylong and sent by ordinary post. It was received at the defendant’s Cowra Post Office box on 30 December 2013.

79 On 10 December 2013 Glenn Jones on behalf of Bradley Allen Love issued a further letter to the defendant requesting he provide information under Section 118B of the EP&A Act (Tab 21 of the Bundle). That letter was accompanied by the Instrument of Appointment and Authorisation dated 12 August 2013. The letter relevantly states:-

“As one of the owners of the Premises, I suspect that you may have    knowledge, information or records in your possession which may assist    me with my investigation.

Pursuant to section 118B of the EPA Act, I require you to provide me with a copy of all telephone records in your possession in relation to any telephone (whether a landline or mobile phone) in your possession or under your control, whether alone or jointly with any other person, during the period from 1 January 2012 to 30 June 2012.”

80   Further correspondence was exchanged between Messrs Hills Solicitors / the defendant and Bradley Allen Love, for the prosecutor, in the period from 10 December 2013 to 30 January 2014. This correspondence is included in the Bundle under the following Tabs:-

Tab 22   19 December 2013    Letter Hills Solicitors to Bradley                Allen Love (re: letter dated 6                December 2013)

Tab 23   19 December 2013    Letter Hills Solicitors to Bradley                Allen Love (re: letter to Sharon                Fuller dated 9 December 2013)

Tab 24   20 December 2013    Letter Bradley Allen Love to Hills                Solicitors

Tab 25   9 January 2014       Letter Hills Solicitors to Bradley                Allen Love (re: postage delay)

81   On 22 January 2014, Glenn Jones on behalf of Bradley Allen Love sent a letter to the defendant which relevantly stated:

I refer to our Notice to you of 9 December 2013, (the Notice), requiring you to attend an interview to answer questions under section 118BA of the Environmental Planning and Assessment Act 1979 (EPA Act).

In the Notice, we requested that you nominate, on or before the close of business on 20 December 2013, a time and place for interview. As you have not nominated a time and place, I nominate the following time and place, that I believe to be reasonable in the circumstances, for the interview described in the Notice:

Time:   3 February 2014 at 1:00pm

Place:   Cowra Shire Council

116 Kendall St

COWRA NSW 2794

A copy of that letter is at Tab 26 of the Bundle. At Tab 27 of the Bundle is a letter in corresponding terms also sent by Glenn Jones on behalf of Bradley Allen Love to the defendant’s lawyer, Ralph Ward of Hills Solicitors, on the same date.

82   On 30 January 2014, the defendant’s lawyer responded to Glenn Jones’ letter of 22 January 2014. That letter relevantly stated:-

“In so far as the letters issued by Bradley Allen Love dated 22 January 2014 rely upon an alleged failure by Gregory Francis Fuller on or prior to the close of business on 20 December 2013 to nominate a time and place for an interview under Section 118BA of the Environmental Planning and Assessment Act, it is our view for the reasons set out in this letter that Cowra Shire Council is not entitled to nominate a time and place for the interview.

Section 118BA(iv) of the Environmental Planning and Assessment Act provides:-

“The place and time at which a person may be required to attend …………… is to be:-

(a)   A place and time nominated by the person, or

(b)   If the place and time nominated by the person in the circumstances, or a place and time is not nominated by the person, place and time nominated by the authorised person that is reasonable in the circumstances.”

Gregory Francis Fuller could not prior to 20 December 2013 in accordance with his entitlement under Section 118BA(iv) nominate a time and place for an interview as the letter issued by Bradley Allen Love dated 9 December 2013 was not received by Gregory Fuller until 30 December 2013, some ten days after the date upon which he was entitled to exercise his legal right to nominate a time and place.

The letter issued by Bradley Allen Love on 9 December 2013 addressed to;-

Gregory Francis Fuller

“Bylong Station”

Bylong Valley Way, Bylong

was:-

(i)   Sent to an address which was not Mr Fuller’s residential address;

(ii)   Received by Mr Fuller pursuant to a re-direction which had been lodged with Australia Post when delivered to PO Box 706, Cowra on 30 December 2013.

We would be pleased if Bradley Allen Love could acknowledge that in the circumstances outlined in this letter Cowra Shire Council / Glenn Jones / Bradley Allen Love do not have entitlement under Section 118BA(iv) of the Environmental Planning and Assessment Act to nominate a place and time for Gregory Francis Fuller to answer questions under that section.

Gregory Francis Fuller acknowledges the entitlement of the Cowra Shire Council to issue a Notice under Section 118BA of the Environmental Planning and Assessment Act requiring him to attend for an interview. Mr Fuller does, however, reserve the right under sub section (iv) of Section 118BA to nominate a place and time for such interview. Monday 3 February 2014 at 1.00 pm at Cowra Shire Council is not a convenient place and time for such an interview.”

A copy of that letter is at Tab 28 of the Bundle.

83   On 6 February 2014, the prosecutor’s lawyer responded to the letter from the defendant’s lawyer of 30 January 2014. That letter relevantly stated:-

I refer to your letter of 30 January 2014 in which you say that a Notice sent by us to Mr Fuller on 9 December 2013 did not arrive until after 30 December 2013. This is rather odd given that a notice sent on the same day to Mrs Fuller at the same address was received by her before 19 December 2013 (as indicated in your letter of 19 December 2013).

A copy of that letter is at Tab 29 of the Bundle.

84   On 13 February 2014, the defendant’s lawyer responded to the letter from the prosecutor’s lawyers of 6 February 2014. That letter relevantly stated:-

We acknowledge receipt of your letter of 6 February 2014. That letter includes the comment in relation to the letter from you to Mr Fuller dated 9 December 2013 as “rather odd given that a notice sent on the same day to Mrs Fuller at the same address was received by her before 19 December 2013 was not received by Mr Fuller until 30 December 2013”.

Australia Post governs its own delivery programs / timetables. In the immediate pre Christmas period it’s our experience that letters sometimes take longer to be received than anticipated. The fact quite simply is the letter was not received by Mr Fuller until 30 December 2013. You were not aware of this as you did not elect to forward the letter by either:-

(a)   Express post where it could be tracked; or

(b)   Registered post where it could be monitored / recorded.

A copy of that letter is at Tab 30 of the Bundle.

85 On 5 December 2013 Cowra Council had issued an Authority to Enter Premises in favour of Glenn Jones. That Authority included identification of the premises to which the Authority applied in accordance with Section 118N of the EP&A Act. That Authority is at Tab 31 of the Bundle.

86 On 6 February 2014, Glenn Jones on behalf of Bradley Allen Love sent a letter to the defendant which contained a new Notice to attend an interview under section 118BA of the Environmental Planning and Assessment Act 1979 which relevantly stated:

…I require you to attend an interview with me to answer questions pursuant to section 118BA of the EPA Act.

Please nominate, on or before close of business on 21 February 2014, a time and place for the interview. If the time and place nominated is not reasonable in the circumstances or you fail to nominate a place and time for the interview, the interview will take place on:

Time:    24 February 2014 at 9:00am

Place:   Cowra Shire Council

116 Kendall St

COWRA NSW 2794

A copy of that letter is at Tab 32 of the Bundle.

87 On 21 February 2014 Hills Solicitors responded to the Glenn Jones letter of 6 February 2014 confirming that the defendant would be available for an interview in accordance with Section 118BA of the EP&A Act (Tab 33 of the Bundle). That letter relevantly states:-

“That letter invites our client, Gregory Francis Fuller on or before close of business on 21 February 2014 to nominate a time and place for an interview in accordance with Mr Fuller’s entitlements under section 118BA of the Environmental Planning and Assessment Act.

We refer to our other letters to your firm today in relation to the validity of the authority purportedly granted to Glenn Jones under section 118A of the Environmental Planning and Assessment Act 1979 and the requirements of the Commercial Agents and Private Inquiry Agents Act 2004, both of which affect the validity of the Notice purportedly issued under section 118BA of the Environmental Planning and Assessment Act 1979 to Mr Fuller and the legality of the proposed interview………..

Subject to the matters identified above establishing Mr Jones has authority to and is entitled to undertake an interview concerning the “Shiel” homestead matter, our client proposes the following time and place:-

Venue:   Clark McNamara Lawyers

Level 17, 1 Market Street, Sydney 2000

Date:   Thursday 13 March 2014

Time:   12 noon.”

88   Other correspondence was exchanged between Hills Solicitors for the defendant and Bradley Allen Love during February 2014 as follows:-

Tab 34 21 February 2014 Letter Hills Solicitors to Bradley Allen Love re: Section 118B of the EP&A Act with attachments

Tab 35 21 February 2014 Letter Hills Solicitors to Bradley Allen Love re: compliance under Section 118A of the EP&A Act

Tab 36   21 February 2014       Letter Bradley Allen Love to Hills                Solicitors responding to Hills’ letters                of 21 February 2014

89   On 3 March 2014 Bradley Allen Love by letter to Hills Solicitors notified Hills that the defendant was not required to give an interview with Glenn Jones. That letter is at Tab 37 of the Bundle and relevantly states-

“We refer to your various letters of 21 February 2014 and our       reply to some of those letters on that day.

We are instructed to withdraw the notice given to your client,       Gregory Francis Fuller dated 6 February 2014 requiring him to       attend an interview with Glenn Jones of our office. However, if       your client wishes to voluntarily attend an interview with Mr       Jones on the usual basis (i.e. that anything he says may later be       used in evidence against him), we will make the necessary       arrangements.

In relation to your letter received by facsimile at 11.52 am on 21 February, we disagree with your unduly narrow interpretation of section 118B of the Environmental Planning and Assessment Act 1979. In any event, we are not prepared to provide the schedule of information you have requested in that letter.”

90   On 4 March 2014, Hills Solicitors responded to Bradley Allen Love by letter. A copy of that letter is at Tab 38 of the Bundle. Relevantly, that letter states as follows:-

“On behalf of our client we have nominated Thursday 13 March 2014 @ 12 noon at the premises of Clark McNamara Solicitors as the time and place when Mr Fuller would be available for the purpose of attending an interview in accordance with the notice of 6 February 2014. On behalf of our client we vacate that nomination following the withdrawal of the notice dated 6 February 2014.”

91   On 12 March 2014 the defendant’s solicitor sent two further letters to the prosecutor setting out the concerns purportedly held on behalf of the defendant in relation to the conduct of the investigation of the demolition of the Shiel Homestead by the prosecutor. Those letters are at Tab 39 and Tab 40 of the Bundle.

92   On 13 March 2014 Bradley Allen Love responded to Hills Solicitors (Tab 41 of the Bundle).

“I refer to your two letters of 12 March 2014 which we received by facsimile yesterday.

While we appreciate the time you have taken to set out your concerns, we do not agree with any of the propositions you have stated. In our view the authority to enter premises was validly given to Mr Jones and we have previously explained why Mr Jones does not require an operator licence under the Commercial Agents and Private Inquiry Agents Act 2004.

We have no intention of ceasing to act for Cowra Shire Council.”

93   On 17 March 2014 Cowra Shire Council resolved to issue proceedings for the prosecution of the defendant which is now before the Court.

94 The proceedings herein were issued on 1 April 2014. Prior to the issue of the proceedings herein, the defendant did not produce any of the documents sought by the prosecutor. The defendant had received legal advice that he was under no obligation to provide documents under Section 118B of the EP&A Act. The defendant has not attended an interview with the prosecutor, either voluntarily or under the compulsion of the notice issued by the prosecutor under s118BA of the EPA Act, the prosecutor having withdrawn that notice.

(ii)   Other matters

95   The Mayor of the Cowra Shire Council, William West, is the registered owner of the property 651 Sheep Station Road, Cowra (Lot 2 DP1067835). In around 2002 or 2003, as the owner of that property, he directed the demolition of a building located on the property and caused the building debris to be buried on site. There was no development consent for the demolition and Mr West had been advised by Council staff that development consent was not required.

4. Additional evidence tendered by the Defendant included three medical reports relating to the Defendant’s wife long term and debilitating illness and two character references for the Defendant from Father Harrigan and Mr Williams.

5. In his character reference, Father Harrigan outlines the ups and downs of Mr Fuller and his family during the 40 or more years he has known them. Father Harrington emphasised the achievements of the Defendant and his wife, with stud cattle breeding being a notable example. Father Harrigan considers the Defendant’s actions to be a result of a “brain snap” due to circumstances leading to the demolition. Father Harrigan notes that the Defendant has expressed remorse to him and that he does not consider that the Defendant will reoffend.

6. Mr Williams is a family friend of the Defendant. Mr Williams stated that the Defendant is a devoted family man and a man of his word. Mr Williams considers that the Defendant’s actions were a reaction to the Defendant’s frustration or perceived injustice. Mr Williams notes that the Defendant has recognised that his behaviour was unacceptable at a community level, and considers that the Defendant will not reoffend.

7. The Defendant pleaded guilty so has admitted the essential elements of the offence per R v O’Neill [1979] 2 NSWLR 582 at 588.

Purposes of sentencing

8. The offences charged are strict liability offences. It is not part of the elements of the offence that the Defendant intended to commit the offence. Section 3A of the Crimes (Sentencing Procedure) Act1999 (NSW) (CSP Act) identifies the purposes of sentencing. It states:

The purposes for which a court may impose a sentence on an offender are as follows:

(a) to ensure that the offender is adequately punished for the offence,

(b) to prevent crime by deterring the offender and other persons from committing similar offences,

(c) to protect the community from the offender,

(d) to promote the rehabilitation of the offender,

(e) to make the offender accountable for his or her actions,

(f) to denounce the conduct of the offender,

(g) to recognise the harm done to the victim of the crime and the community.

9. Section 21A of the CSP Act identifies numerous matters which a court must take into account when sentencing including in relation to aggravating (s 21A(2)) and mitigating (s 21A(3)) factors.

10. In Bentley v BGP Properties Pty Ltd [2006] NSWLEC 34; (2006) 145 LGERA 234 at [163] and Gittany Constructions Pty Ltd v Sutherland Shire Council [2006] NSWLEC 242; (2006) 145 LGERA 189 at [110] relevant factors to determine the objective gravity of an offence were identified for offences under the EPA Act. The factors include the maximum penalty, the objective harmfulness of the defendant's actions, the reasons for the commission of the offence and the state of mind of the offender. Another relevant factor can be consideration of the statutory scheme in which the offence provision appears: see Blue Mountains City Council v Carlon [2008] NSWLEC 296 at [48], Mosman Municipal Council v Menai Excavations Pty Ltd (2002) 122 LGERA 89 at [35].

11. An important consideration in this case is upholding the statutory scheme for orderly planning in NSW under the EPA Act, as identified in numerous cases including Menai and Burwood Council v Douehi [2013] NSWLEC 196; (2013) 200 LGERA 152.

Objective circumstances

12. The maximum penalty for the offence committed is $1.1 million (10,000 penalty units) a relevant consideration reflecting the seriousness of the offence as nominated by the Parliament of New South Wales: Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 at 698; see also Markarian v R [2005] HCA 25; (2005) 215 ALR 213 at 231.

13. Section 21A of the CSP Act relevantly states

(2) Aggravating factors

The aggravating factors to be taken into account in determining the appropriate sentence for an offence are as follows:

…

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

(i) the offence was committed without regard for public safety,…

(n) the offence was part of a planned or organised criminal activity,

(o) the offence was committed for financial gain

…

14. The objective seriousness of the offence may be measured by the reasons for its commission, per Director-General of the Department of Environment and Climate Change v Rae [2009] NSWLEC 137 at [47].

15. The Prosecutor submits the offence is serious and that there are aggravating factors as identified in s 21A(2)(g), (i), (n) and (o) of the CSP Act. There was harm to the heritage of the Cowra local environment with the loss of the Shiel homestead (subs (g)). This was found by heritage experts Mr Reinberger engaged by the Defendant and Mr Scobie the Prosecutor’s heritage consultant to have rare heritage significance at the local level. The effect of the offence was to prevent the Prosecutor from issuing an Interim Heritage Order (IHO) or listing the building as a heritage item under the 1990 LEP. The activity giving rise to the offence was planned and deliberate (subs (n)). The offence occurred on 7 April 2012 when the Defendant was in Sydney by contractors acting at his direction. The Defendant told the caretaker that an excavator would be arriving later that week. The hot water service and electric stove had been removed prior to the demolition at the direction of the Defendant. The SOAF identifies six occasions when the Defendant was told or was clearly aware that he required development consent for demolition, on 9 November 2011 (par 12), 5 December 2011 (par 16), 31 January 2012 (par 19), engagement of consultant to prepare DA 1 February 2012 (par 21), 2 April 2012 site visit by Council officer (par 26) and 30 March 2012 conversation with the mayor (par 28). There was a failure to consider public safety as no investigation of whether the structure contained asbestos was carried out before the demolition, only afterwards (par 37 of the SOAF) (subs (i))

16. The reason for committing the offence was to facilitate the construction of a new dwelling on the same property. The construction of that dwelling was not permissible under the 1990 LEP unless the Shiel homestead was demolished. While not direct financial gain there was a significant personal gain to the Defendant (subs (o)).

17. The Defendant submits the offence was committed in extenuating circumstances. These extenuating circumstances include;

1. The circumstances of purchase;

2. Mrs Fuller's health;

3. The condition of the Shiel property; and

4. Cowra City Council's sudden push for the Shiel property to become potentially heritage listed after the Defendant vocalised his desire to demolish the property.

5. Absence of commercial gain.

18. The circumstances of purchase relied on are that the Defendant was moving his substantial cattle breeding property from Bylong, the s 149 Certificate issued by the Prosecutor at the time of sale made no mention of any heritage issues in relation to the Shiel homestead (conversation set out in par 19 SOAF). The Prosecutor has undertaken three heritage inquiries as detailed in par 48 of the SOAF which did not identify the Shiel homestead at all. Heritage issues were only raised for the first time by the Prosecutor when the Defendant expressed interest in replacing the homestead.

19. Mrs Fuller is in poor health and has been for over 20 years and needs assistance with mobility such as a chair or walking stick. Renovation of the two storey homestead was beyond her and a two storey building was not suitable for her. Mrs Fuller’s health as a reason leading to the demolition of the Shiel homestead was reflected in the letter of support provided by Father Harrigan.

20. The Shiel homestead, whilst structurally sound, required significant restoration work (see pars 54-60 of the SOAF, referring to the evidence of Mr Reinberger, Mr Dresser, Mr Waters and Mr Humphries). Aside from the state of disrepair, there had been numerous incidents which occurred in the house during the nine months leading up to March 2012 after the acquisition of the property by the Defendant and his wife. These include:

1. An electric fire in the kitchen caused by failure of VIR wiring;

2. Collapse of external staircase providing access to rear verandah; and

3. Failure of hot water system and leakage of hot water system into ground floor rooms of the residence.

21. Further, any renovation of the Shiel homestead would have been cost prohibitive (see par 19 of the SOAF).

22. The only loss in terms of heritage was the potential for listing of the property as a heritage item or as subject to an IHO. There is no certainty that such measures would have been implemented. If implemented they would not have imposed an obligation on the Defendant to reinstate the homestead. The reports of Mr Scobie and Mr Reinberger did not identify an architect responsible for the building. Nor was a Burra Charter/ICOMOS assessment conducted as part of the heritage assessment. Mr Scobie’s conclusions were not final or certain. The fact that Mr Reinberger formed the view that the homestead satisfied criteria for local listing does not lead to the conclusion that it would have been heritage listed. There was no environmental harm from the actual demolition work carried out.

Finding on objective seriousness

23. Maintaining the integrity of the planning system in NSW as found in the EPA Act which applies to all private landowners intending to develop their property is important. Failure to obtain development consent potentially undermines the orderly development required by that system. Further, I largely agree with the Prosecutor’s submissions that this is an objectively serious offence given that the Defendant was well aware of his legal obligation to make a development application (DA) for demolition and chose not to abide by that requirement in the EPA Act. There was nothing inadvertent or accidental about his actions which gave rise to the offence in the circumstances of planning the demolition identified by the Prosecutor. The circumstances identified by the Prosecutor at par 15 suggest a large measure of premeditation, an aggravating factor under subs (n). The Defendant also failed to consider public safety in that the building was not assessed for asbestos before demolition, only afterwards, a further aggravating factor under subs (i)).

24. Another aggravating factor is the environmental harm resulting from the offence (subs (g)). The environmental harm caused is the potential for recognition and protection of the Shiel homestead as a heritage item for the local community of Cowra, a potentially important loss which is irreversible as a result of the offence. That there was uncertainty whether listing as a heritage item under the 1990 LEP or the placement of a protective IHO at the date of the offence does not reduce the objective seriousness of the offence. The only reason the issue did not come before the Prosecutor for further consideration in relation to such matters later in April 2012 was the demolition of the building. That the final result of any heritage consideration is unknown results entirely from the Defendant’s actions. That the listing of the Shiel homestead as a heritage item under the 1990 LEP or being made the subject of an IHO imposes no obligation on the Defendant to restore the property is a neutral factor. That is simply the regime for heritage protection of buildings currently in place in NSW.

23. It is difficult to give much weight to the matters said to have caused such frustration to the Defendant that he chose to deliberately ignore compliance with the EPA Act. Any lawful option was pre-empted by his precipitate action, for example filing a DA and appealing to this Court in the event of a refusal of consent by the Prosecutor. According to par 30 of the SOAF, Mr Reinberger’s advice in the conversation with the Defendant on 4 April 2012 was that demolition of the homestead may still have been possible if, for example, certain archival measures were implemented. The Defendant was not prepared to wait and find out the outcome of any deliberation on such measures by the Prosecutor.

24. I note that the Defendant was frustrated by the late, from his point of view, identification of potential heritage issues by the Prosecutor. That the building was not included in the three heritage studies identified in the SOAF in par 48 is not material. The key matter complained of is that the s 149 certificate did not include any indication of heritage values in the homestead. All that can be accepted but there was nothing unreasonable in the Prosecutor’s behaviour in undertaking its planning obligations under the EPA Act in investigating heritage issues once these became known, indeed it was obliged to investigate the heritage aspects of the homestead in my view. The timing was unfortunate from the Defendant’s perspective but that does not excuse the unlawful and deliberate demolition. The Defendant deliberately cleared the impediment standing in his way to achieving the goal of a new house on the homestead site, a substantial personal gain in my view. This accorded with his plans to have a house overlooking the new cattle sheds and yard which were nearing completion at the end of January 2012. That he was motivated by in part by the desire to provide a suitable residence for his ill wife is not an adequate excuse.

25. The state of repair of the Shiels homestead is irrelevant to lessening the seriousness of the offence. While it was in poor repair and required significant restoration work according to pars 55–59 of the SOAF it remained structurally sound. Nor is there any reason to question the findings of the two heritage experts Mr Scobie and Mr Reinberger to the effect that it had local heritage significance simply because the original architect of the building was not referred to, or that a Burra Charter/ICOMOS assessment was not conducted, as the Defendant submits. That the Defendant’s expressed view was that restoration of the homestead was cost prohibitive is not material to the assessment of objective seriousness.

26. I do not consider the circumstances said by the Defendant at pars 18 and 19 to be extenuating modify the objective seriousness of the offence. The objective seriousness of this matter is moderate to high.

Subjective factors

29. Section 21A(3) of the CSP Act identifies the relevant mitigating factors as follows:

…

(e) the offender does not have any record (or any significant record) of previous convictions,

(f) the offender was a person of good character,

(g) the offender is unlikely to re-offend,

(h) the offender has good prospects of rehabilitation, whether by reason of the offender’s age or otherwise,

(i) the remorse shown by the offender for the offence, but only if:

(i) the offender has provided evidence that he or she has accepted responsibility for his or her actions, and

(ii) the offender has acknowledged any injury, loss or damage caused by his or her actions or made reparation for such injury, loss or damage (or both),

…

(k) a plea of guilty by the offender (as provided by section 22),

…

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

Early plea of guilty

30. The Defendant entered a plea of guilty to the charge on the 27 June 2014, when the matter was listed for the second time. The Defendant’s plea of guilty was entered at the earliest opportunity, as the Prosecutor accepted. In accordance with s 21A(3)(k) and s 22 of the CSP Act, it is submitted that Mr Fuller is entitled to the usual significant discount upon sentence for his plea of guilty at the earliest practicable opportunity. The guideline judgment of the Supreme Court of New South Wales in R v Thompson & Houlton (2000) 115 A Crim R 104 sets out the appropriate discount being in the order of 10% to 25% and should be applied to the full amount identified.

31. In light of the history of the lack of co-operation with the Prosecutor identified by the events in pars 61–94 the Defendant does not gain the benefit in mitigation of co-operation with authorities identified in s 21A(3)(m). (Nor is the seriousness of the offence exacerbated on this basis). That the Defendant co-operated in the proper disposal of the waste arising from the demolition is not relevant to the investigation of the offence.

Remorse

32. The Defendant has pleaded guilty, an expression of remorse according to his counsel. Expressions of remorse can be taken into account in mitigation according to s 21A(3)(i) where a Defendant provides evidence that he or she has accepted responsibility for his actions and has acknowledged any loss caused by his actions or made reparation. The Defendant did not provide an affidavit or sworn statement expressing his remorse to the Court, the more usual course in this Court. Remorse was expressed from the bar table by his counsel, to which I give very limited weight extrapolating from Environmental Planning Authority v Port Kembla Copper Pty Ltd [2001] NSWLEC 223 at [28], and also my approach in Douehi at [33] where I held that generally more than a guilty plea is required as an expression of remorse. The Defendant expressed remorse to Father Harrigan but I do not consider that should be accorded much weight in the absence of sworn evidence to the Court from the Defendant. I considered similar issues and provided reasons for a similar approach in Hawkesbury City Council v Johnson (No 2) [2009] NSWLEC 6 at [112]-[113], [115] citing the Court of Criminal Appeal in R v Elfar [2003] NSWCCA 358 at [24]-[25] which reasoning I adopt here. The passage from Elfar emphasises that where a court does not have the opportunity to test evidence concerning the remorse of a defendant it should be accorded little weight in sentencing. I agree with the Prosecutor’s submission that there should be no discount of the penalty for an expression of remorse in this case.

No prior record/Defendant of good character

33. The Defendant does not have any record of previous convictions other than for traffic offences. I accept he is of good character in light of the two positive personal references provided by him. I also accept that the Defendant is unlikely to re-offend and will take these matters into account in the reduction of penalty.

General deterrence

34. The Prosecutor submitted that general deterrence was an important consideration citing Environmental Planning Authority v Hanna [2014] NSWLEC 152; (2014) 205 LGERA 39 at [152]. Sentences imposed in relation to environmental offences must embrace powerful considerations of general deterrence: see Axer per Badgery-Parker J at 367. In Axer Pty Ltd v Environmental Planning Authority (1993) 113 LGERA 357, Mahoney J stated at 359:

The quantum of the fines which the legislation allows to be imposed has no doubt been fixed not merely to indicate the seriousness with which such pollution is regarded but also to deter those engaged in such activities and to procure that they will take the precautions necessary to ensure that it does not occur.

35. This is an important consideration in this matter given the very large volume of development that occurs in this state and the importance of enforcing the EPA Act so that there is a level playing field for all under that system.

Evenhandedness

36. The Prosecutor summarised seven cases it had identified which concerned offences relating to demolition of heritage items or items of heritage value. I agree with its submission that none is comparable to this case which is far more serious than the matters cited, such as Menai, Mosman Municipal Council v Waratah Village Partners Pty Ltd [2003] NSWLEC 101 and Gosford City Council v Colmer [2002] NSWLEC 257. The Defendant cited Ku-ring-gai Municipal Council v Kizana [2002] NSWLEC 187 in which a fine of $75,000 was imposed where the defendant had forged a development approval as an example of a more serious situation than in this matter. That case had different circumstances and also does not assist.

Penalty

37. Taking into account the objective and subjective factors identified above a penalty of $250,000 is appropriate, which should be reduced by 30% to take into account the mitigating factors identified above. A penalty of $175,000 is imposed.

38. An order for the payment of costs as agreed or assessed will be made.

39. Orders

40. The Court makes the following orders:

1. In matter no 50209 of 2014 the Defendant is convicted of the offence as charged.

2. In matter no 50209 of 2014 the Defendant is fined $175,000 to be paid to the Registrar of the Court within 28 days of today's date.

3. The Defendant must pay the Prosecutor’s costs as agreed or assessed.

**********

Decision last updated: 11 February 2015