Don Smith v Afif Abdallah [1994] Nswlec 198 (9 December 1994)

[1994] NSWLEC 198

Land and Environment Court

of New South Wales

CITATION:	DON SMITH v. AFIF ABDALLAH [1994] NSWLEC 198 (9 December 1994) [1994] NSWLEC 1
PARTIES:	DON SMITH v. AFIF ABDALLAH [1994] NSWLEC 198 (9 December 1994)
FILE NUMBER(S):	50026 of 1994
CORAM:	Talbot J
KEY ISSUES:	:- Penalty Costs
LEGISLATION CITED:	Local Government Act s 68, s 669 Environmental Planning and Assessment Act
CASES CITED:	Latoudis v Casey (1990) 170 CLR 534 Mason CJ at 544 and Toohey J at 565; Anthony Patrick Morrison v Caltex Refining Co Pty Limited on 9 September 1994 at p 5
DATES OF HEARING:	5 - 6 December 1994
DATE OF JUDGMENT:	12/09/1994
LEGAL REPRESENTATIVES:	Mr G Miller QC with Mrs J Kelly Mr C Stevens QC With Mr G Turner

JUDGMENT:

The defendant has pleaded guilty to the charge that he between 27 July 1993 and 22 January 1994 at Homebush in the State of New South Wales did contrary to s 68 of the Local Government Act 1993 erect a building without having obtained approval of Strathfield Council. The prosecutor is the strategic planner of the council.

Section 68(1) of the Local Government Act 1993 provides that a person may carry out an activity specified in the table only with the prior approval of the council, except in so far as the Act, the Regulations or a local policy adopted by council pursuant to the Act allows the activity to be carried out without that approval.

The penalty for erecting a building without having obtained a prior approval of the council is $20,000 in the case of an individual.

It is admitted that the defendant is a person to which s 669 applies. This section states:-

"669. A person:

(a) who causes the commission of an offence against this Act or the regulations; or

(b) by whose order or direction such an offence is committed; or

(c) who aids, abets, counsels or procures or by act or omission is directly or indirectly concerned in the commission of such an offence,

is guilty in the same degree and liable to the same penalty as the principal offender."

Although the business at 55 Parramatta Road, Homebush is carried on by his son who is the lessee of the premises, the defendant pays the rent each month and has been responsible for the organisation of and payment for building work carried out on the property during the relevant period.

The total cost of the works undertaken, including fittings, is in the order of $500,000.

The defendant was originally to be charged with a breach of the Provisions of the Environmental Planning and Assessment Act but those proceedings No. 50025 of 1994 were discontinued following the entry of a guilty plea in this matter.

Although not strictly relevant to the current proceedings, the premises are listed as an heritage item in the Schedule to Strathfield LEP No. 30.

The building was originally constructed as a picture theatre. It was one of the largest in Sydney at the time. Before the present use, it had been operated as a skating rink. Before the recent work was carried out, it had fallen into a state of neglect and disrepair. Rubbish, building materials and bird droppings had accumulated on the first floor.

The property has been the subject of a number of inspections by various council officers since 22 January 1991 when council received an heritage assessment of the building.

The premises were inspected on 7 September 1993 when council officers observed that rubble and building materials were being ejected from the first floor and a truck was delivering gyprock and plaster to the site. They were assured by the manager, Mr Han Rhame, that plans would be submitted to council on Monday 13 September 1993.

Further inspections took place on 15 December 1993, 14 January 1994, 18 January 1994 and 19 January 1994.

On the last of these inspections, the prosecutor noted that the following work had been undertaken without council approval:-

(a) concreting over the first floor foyer areas;
(b) the construction of office and bar area in the previous foyer area;
(c) erection and construction of a mezzanine level in the first floor area with railings;
(d) construction of stairs from the entrance foyer to the first floor foyer;
(e) general electrical work/wiring;
(f) gyprocking of ceiling;
(g) erection of stairway from first floor to mezzanine area;
(h) general painting work;
(i) general tiling work;
(j) general plastering work;
(k) construction of stage;
(l) removal of decorative ceiling in stage area and lifting the height and replacing ceiling with new gyprock;
(m) construction of new walls around stage area;
(n) provision of handrail to mezzanine area;
(o) general plumbing works;
(p) provision of male and female toilets;
(q) installation of lights and chandeliers;
(r) carpeting at first floor and mezzanine area;
(s) installation of fire hose reels;
(t) installation of airconditioning system;
(u) cement rendering of walls;
(v) concrete paving on northern side of building;
(w) removed steel girders from stairs, first floor areas;
(x) fit out of bar area.

The Court heard no evidence from the defendant himself nor from any witness in support of his case. A transcript of earlier proceedings in this Court before Stein J has been tendered and statements by the defendant under cross-examination in that case have been relied upon to show his belief and understanding.

In a conversation with a council officer on 19 January 1994, the defendant protested that he had done nothing illegal and that his architect had told him that he could commence work. He referred to a traffic report required by council. He pointed out that it would not be available for six weeks and that he could not afford to wait.

The works were undertaken by the defendant to facilitate the staging of live entertainment using overseas artists. In addition to the cost of the work, he incurred significant expense for fees and expenses relating to the artists.

It is submitted on behalf of the defendant that the works carried out are of high quality and constitute an aesthetic improvement. There is no evidence to support this contention, one way or the other, except that it is self-evident work has been carried out and the appearance of neglect removed.

The totality of the works undertaken is considerable. Photographs are in evidence to confirm this. There can be no suggestion that the works were minor or insignificant. Substantive structural elements of the building have been renovated, replaced or installed without any opportunity for the council to inspect the works as they progressed, let alone approve them.

I am not satisfied that the defendant at any time had a confident belief that the work had been approved or that it could be carried out without consent of the council.

The culpability of the defendant is high. This is not a case of mistake or innocent misunderstanding. The defendant gave evidence before Stein J that he was an experienced builder and that he was aware of the necessity to make an application to a council for consent and to obtain that consent prior to commencing work. He stated that he knew that without that consent from the council, he could not commence work.

The prosecutor acknowledges that there is no record of any previous offence by the defendant under the Local Government Act.

All of the above matters are relevant to be taken into account in assessing the appropriate penalty.

The proceedings were commenced in June of this year and the defendant has been legally represented since the first return date on 1 July 1994. When the matter was before the Chief Judge on 11 August 1994, it was noted that the defendant intended to enter a plea of not guilty and on that basis the matter was set down for hearing over five days.

I appreciate (although there is no proof and no satisfactory explanation) that the defendant may have been let down by counsel who appeared for him in the early stages. Nevertheless, he was at all times represented by his solicitors and there was never any suggestion that the plea of not guilty would be changed to a plea of guilty until the day after the hearing before me was due to commence.

On the first day counsel appearing for the defendant informed the Court that he had only recently received instructions to appear and that no papers had been provided to him. They remained with the earlier instructed counsel with whom contact could not be made. An adjournment was granted until 2.00 pm on that day to enable counsel to take appropriate instructions.

At 2.00 pm the defendant was represented by both senior and junior counsel and upon representation being made, I adjourned the matter until 2.00 pm the following day on the basis that an expeditious hearing might be facilitated by a distillation of the issues.

On 6 December 1994, Mr Stevens QC appeared and the defendant, when formally charged, entered a plea of guilty.

The history of the conduct of the proceedings is relevant to the extent to which the plea of guilty should be taken into account in assessing the penalty and determining the extent of an order for costs.

The prosecutor claims costs in the sum of $30,000 but no attempt has been made to justify this amount other than as a lump sum assessment relating to these proceedings and matter No. 50025 of 1994.

I accept that some of the evidence may have been common to both proceedings but the prosecutor, for whatever reason, did not proceed with the other matter.

Mr Stevens submitted that proceedings 50025 of 1994 were doomed to failure as that charge related to an offence concerning work on the outside of the building, none of which, according to the evidence, occurred.

Irrespective of the merits in proceedings No. 50025 of 1994 (which were not canvassed before me except to the above extent) the prosecutor elected to discontinue. There is no suggestion that the defendant failed to provide an explanation until the day of the hearing having previously been given the opportunity to do so or that in some other way he brought those proceedings upon himself (see Latoudis v Casey (1990) 170 CLR 534 Mason CJ at 544 and Toohey J at 565).

The prosecutor was represented by Mr Glen Miller QC with junior counsel instructed by the council's solicitors. Mr Stevens submitted that instructing senior counsel in the circumstances of this offence was not justified.

I adopt what Bannon J had to say in this Court in Matter No. 50016 of 1994 Anthony Patrick Morrison v Caltex Refining Co Pty Limited on 9 September 1994 at p 5 in regard to the respective role of barristers and solicitors.

The prosecutor was justified in retaining counsel to appear. It is not readily apparent that the complexity of the evidence or the legal issues in the subject proceedings justified senior counsel.

I am not in a position to decide whether instructing senior counsel was justified in the other proceedings.

Having said that, nevertheless there can be no doubt that the prosecutor was entitled to prepare for a hearing on the firm expectation that the charge would be defended. Affidavits have been drafted and settled, consultation has taken place and exhibits were prepared. The proceedings were set down on the basis that the hearing would take five days. Counsel and solicitors have appeared over two days. There were earlier appearances.

The Court is required to make an assessment of reasonable costs without the benefit of a formal taxation and in the absence of any detailed evidence in support of the amount claimed. The sum of $30,000 appears to be excessive in the circumstances.

The totality of the evidence and the submissions have been taken into account in the assessment of penalty and costs.

A fine of $15,000 will be imposed.

I assess the costs at $15,000.

The formal orders of the Court are:

1. The defendant is convicted of the offence as charged.

2. The defendant is fined the sum of $15,000.

3. The defendant is ordered to pay the prosecutor's costs as assessed in the sum of $15,000.

4. The fine and the costs are to be paid to the Registrar of this Court for payment out to Strathfield Council.

5. The fine and the costs shall be paid by 4.00 pm on 6 January 1995 or such other time as the Court by order allows.