Hurstville City Council v Naumcevski
[2011] NSWLEC 226
•30 November 2011
Land and Environment Court
New South Wales
Medium Neutral Citation: Hurstville City Council v Naumcevski [2011] NSWLEC 226 Hearing dates: 29 and 30 November 2011 Decision date: 30 November 2011 Jurisdiction: Class 5 Before: Pepper J Decision: The Court orders that:
(1) Mr Naumcevski is convicted of the offence as charged;
(2) Mr Naumcevski is fined the sum of $14,000;
(3) pursuant to s 257B of the Criminal Procedure Act 1986 Mr Naumcevski is ordered to pay the prosecutor's legal and investigation costs as determined under s 257G of that Act; and
(4) the exhibits are to be returned.
Catchwords: SENTENCE: carrying out excavation works without consent - consideration of objective and substantive factors - extent of harm - whether offence committed intentionally or recklessly - whether prosecution should have been commenced in the Local Court Legislation Cited: Criminal Procedure Act 1986 ss 257B, 257G
Crimes (Sentencing Procedure) Act 1999 ss 3A, 21A, 22, 23
Environmental Planning and Assessment Act 1979 ss 5, 76A, 125Cases Cited: Axer Pty Ltd v Environment Protection Authority (1993) 113 LGERA 357
Bentley v BGP Properties Pty Ltd [2006] NSWLEC 34; (2006) 145 LGERA 234
Cabonne Shire Council v Environment Protection Authority [2001] NSWCCA 280; (2001) 115 LGERA 304
Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683
Cessnock City Council v Bimbadgen Estate Pty Ltd (No 2) [2011] NSWLEC 140
Council of the Municipality of Kiama v Pacific Real Estate (Warilla Pty Ltd) [2009] NSWLEC 191
Director-General, Department of Environment and Climate Change v Rae [2009] NSWLEC 137; (2009) 168 LGERA 121
Environment Protection Authority v Barnes [2006] NSWCCA 246
Environment Protection Authority v Waste Recycling and Processing Corp [2006] NSWLEC 419; (2006) 148 LGERA 299
Garrett v Freeman (No 5) [2009] NSWLEC 1; (2009) 164 LGERA 287
Gittany Constructions Pty Ltd v Sutherland Shire Council [2006] NSWLEC 242; (2006) 145 LGERA 189
Hili v The Queen; Jones v The Queen [2010] HCA 45; (2010) 272 ALR 465
Holroyd City Council v Ghannoum [2007] NSWLEC 351
Keir v Sutherland Shire Council [2004] NSWLEC 754
Lahood v Strathfield Municipal Council [2007] NSWLEC 714
Lane Cove Council v Wu [2011] NSWLEC 43
Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357
Mosman Municipal Council v Menai Excavations Pty Ltd [2002] NSWLEC 132; (2002) 122 LGERA 89
Pittwater Council v Scahill [2009] NSWLEC 12; (2009) 165 LGERA 289
Plath v Hunter Valley Property Management Pty Ltd [2010] NSWLEC 264
Plath v Glover [2010] NSWLEC 119
Plath v Rawson [2009] NSWLEC 178; (2009) 170 LGERA 253
R v Thomson; R v Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383
Veen v The Queen [1979] HCA 7; (1979) 143 CLR 458
Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465
Willoughby City Council v BCPD Pty [2010] NSWLEC 163Category: Sentence Parties: Hurstville City Council (Prosecutor)
Sasho Naumcevski (Defendant)Representation: Mr T Howard (Prosecutor)
Mr S Arch (Solicitor) (Defendant)
HWL Ebsworth Lawyers (Prosecutor)
Concordia Pacific (Defendant)
File Number(s): 50325 of 2011
EX TEMPORE JUDGMENT
Mr Naumcevski Carries Out Excavation Works Without Consent
The defendant, Mr Sasho Naumcevski, pleaded guilty to an offence against s 125(1) of the Environmental Planning and Assessment Act 1979 ("the EPAA") in that on and between June 2009 and 27 July 2009, at 5 Booyong Ave, Lugarno NSW ("the land"), he carried out excavation works without development consent contrary to s 76A(1)(a) of the EPAA.
The excavation works included the removal of soil and rock from the rear of the existing dwelling on the land and the rear and side boundaries of the land.
Mr Naumcevski is now before the Court for sentencing. Having regard to the objective circumstances of the commission of the offence and the subjective circumstances of Mr Naumcevski, the Court imposes a fine of $14,000 and orders Mr Naumcevski to pay the prosecutor's costs of the proceedings as determined.
Mr Naumcevski Unlawfully Excavates
The facts in this matter were largely not in dispute and were contained in a statement of agreed facts with an attached bundle of documents. An aerial photograph of the land where the excavation had been undertaken was also put before the Court.
Mr Naumcevski is a licensed building contractor with the Department of Fair Trading. He was a director of and carried out the construction business of Brickcorp Pty Ltd ("Brickcorp"), until it was deregistered on 17 October 2010.
On 4 March 2009, Hurstville City Council ("the council") granted a development consent to Ms Joanne Faraos, the registered proprietor of the land, for alterations and additions to the residential dwelling on the land, subject to conditions ("the development consent").
A construction certificate was not issued by the council, or any private certifying authority, prior to any work being commenced on the land.
On 27 July 2009, Mr George Siambis, a building surveyor employed by the council, inspected the land following a complaint to the council from an occupant of an adjoining property.
Mr Siambis observed two workmen on the land demolishing the existing building and carrying out earthworks. A significant amount of excavation work had been carried out at the rear of the land. Mr Siambis estimated that the excavation was 2.5m deep at the rear boundary of the property. He also observed an excavator and other machinery on the land.
During his inspection Mr Siambis had the following conversation with Mr Naumcevski, who identified himself as "the builder". The conversation included the following exchange:
Defendant said: "Hi I'm Sash. I'm the builder."
GS said: "Hi, I'm George Siambis from the Council. Are you building in accordance with the consent here? There's a fair bit of excavation up the back."
Defendant said: "I think I am. But the plans are a little ambiguous."
GS said: "You know there isn't any sediment control up the back."
Defendant said: "Yeah I know. I'll get that fixed."
GS said: "Who is your PCA? Do you have a CC?"
Defendant said: "I've been chasing up the PCA for a CC for a while. Be he wont issue it because I don't have home warranty insurance. I can't get it at the moment because there is a backlog with the insurance companies. And the longer I am not working, the harder things are getting for me. Meanwhile, this site is just sitting here doing nothing."
GS said: "So you don't have a CC?"
Defendant said: "No."
GS said: "Ok. Well you can't do anymore work. I am going back to the Council and report my findings to my manager. You and the owner should both contact the Council about this in the next couple of days."
Defendant said: "Ok."
GS said: "Also, there is no site sign out the front. You need to put that up."
Defendant said: "Yeah, okay."
GS said: "There's also quite a lot of tracking on the road and the nature strip which you need to fix up."
Defendant said: "Yeah I'll get that cleaned up."
Mr Siambis subsequently inspected the development consent granted by the council in respect of the land and formed the view that the works that had been carried out on the land, particularly the excavations works, were not in accordance with the development consent.
On 28 July 2009, Ms Jean Nicol, the Building Control Manager of the council inspected the land. Ms Nicol observed the following: that there was a sign erected on the temporary fencing around the site that read "Brickcorp Constructions NSW"; that an excavator was enclosed at the front of the land; that the brick dwelling on the land was partially demolished; that no one was working on the land at the time of the inspection; that the topography of the land was steeply sloping from the rear of the property towards Booyong Ave; that excavation had been carried out at the rear of the land so that the excavated area was approximately level with what appeared to be the floor level of the front balcony; and that an extensive rock face was cut along the rear boundary of the land that she estimated to be 2.5m high.
On 29 July 2009, the council issued a stop work order to Ms Faraos and Mr Naumcevski for all building work at the land pursuant to s 121B of the EPAA. On the same day the council issued Ms Faraos and Mr Naumcevski with a notice of intention to serve order. The notice set out the terms of the order to be served, which relevantly included that development was to be carried out in accordance with the development consent; that a construction certificate was to be obtained prior to commencing works; and that notice was to be given to the council before work was commenced.
On 4 August 2009, Mr Naumcevski and a person called "Anthony", who was representing Ms Faraos, met with Ms Nicol and Ms Cathy Mercer, the council's administrative officer. It was at this meeting that Mr Naumcevski acknowledged that he had difficulty interpreting the plans and "had no intention of doing anything wrong by the clients or the Council". Mr Naumcevski said he misinterpreted the plans in the following way:
The plans I used to carry out the work were not drawn to scale. The house is automatically 400mm different. The property is on an angle and the variance in the backyard is dramatic. It depends on what level you interpret on the plans.
Further, Mr Naumcevski took all the blame for the commission of the offence saying: "it is my responsibility. I misinterpreted the drawings. There were just no distances on the plans." In addition, after being questioned by the council about the lack of a construction certificate, Mr Naumcevski stated that he had difficulty getting home warranty insurance and that:
there is a 6 month backlog with CGU. I have done the wrong thing by my client and take full responsibility. Its just that if I am working I am not getting any money. I should have told the owners to get an Owner/Builder but I had to start to get work done and money in the door.
At the conclusion of the meeting, the council indicated its intention to proceed with legal action only against Mr Naumcevski because he had advised them that "he [had] acted alone and without a construction certificate." The following further conversation took place:
Anthony said: "How can we fix this? I don't want to go to Court. I have no money to fight. With building on a budget as well I have gone backwards instead of forwards. I need to get some clarification on distances. The cross section plan showed some information but not fencing."
JN said: "The construction certificate plans would have captured this. The PCA would have told you what you needed to meet".
It was estimated in a survey report, completed by Mr A B Stephens, a registered surveyor, which was attached to the statement of agreed facts, that the area excavated totalled 109m.
On 10 September 2009, Ms Anastasia Leone of Urban Style Design Pty Limited lodged a s 96 modification application, on behalf of Ms Faraos, with the council to modify the development consent.
On 5 January 2010, the council subsequently approved the modification application, which included approval for all of the unauthorised excavation works that had been carried out at the rear of the property, as well as approval for external alterations and a new retaining wall ("the modified development consent").
On 5 April 2010, a construction certificate was issued by a private certifying authority to Ms Faraos in respect of the modified development consent.
Evidence of the Council
The council relied on the material contained in the affidavit of Mr George Siambis sworn 24 November 2011.
Mr Siambis is a building surveyor with the council. His evidence was effectively three-fold:
(a) first, that the site coverage plan was drawn to scale;
(b) second, that while there was an internal inconsistency in the consent plans with respect to the number of steps required between the edge of the rear patio and the top of the proposed retaining wall, this could not justify the extent of the excavation carried out by Mr Naumcevski; and
(c) third, that even if Mr Naumcevski's interpretation of the consent plans was adopted, as an alternative to excavation there were a number of drainage measures that could have been implemented to ensure that flooding of the ground floor level would not occur from storm water.
Mr Siambis did not resile from the evidence he had given in his affidavit in cross-examination.
Evidence of Mr Naumcevski
Mr Naumcevski relied on an affidavit sworn by him on 22 November 2011. In his affidavit Mr Naumcevski deposed to the fact that at the time he became involved with the property in July 2009 he was aware that the council had granted a development consent to Ms Faraos for alterations and additions to the existing dwelling on the land. He stated that he was given a copy of the plans that were approved by council.
Mr Naumcevski stated that his role with respect to the development on the land was to assist Ms Faraos to identify suitable tradespeople who were capable of carrying out the work on the land, to engage the services of those tradespeople and to supervise and coordinate their activities on the land. He further stated that he undertook the work as a favour to his accountant "Mr Anthony P" and that he did not request or receive any remuneration for the work he performed.
Mr Naumcevski acknowledged that employees of Brickcorp carried out brickwork on the land but stated that no employee of Brickcorp was involved with the excavation works.
Mr Naumcevski deposed that he had personally reimbursed some of the tradespeople for the work that had been carried out on the land and that he had not been compensated for these expenses, which, in his estimate, totalled $60,000.
Mr Naumcevski stated that he had reviewed the plans approved by the council before the excavation works were carried out at the rear of the property and that he had noted that the plans called for the construction of seven steps leading from the back of the proposed new patio to the rear yard. Further, he stated that the plans were not drawn to scale and did not include dimensions
Based on his experience as a builder and his knowledge of the Building Code of Australia, Mr Naumcevski deposed that it was his opinion that each of the seven steps would rise about 15cm and that the total height of the steps would be about 1m. This was insufficient to reach the top level of the yard because there would a vertical face of 1.5m at the top of the steps. Mr Naumcevski concluded that this would result in an "unworkable development" because stormwater falling in the rear yard would drain from this "face" and cause flooding of the ground level of the renovated dwelling.
As a result of his review of the plans, Mr Naumcevski "formed the opinion that the plans that had been prepared by Abrecon must have been incorrect, and that in order for the plans to result in a workable development excavation beyond the line of the retaining wall that is depicted on the 'Site Coverage Plan' would be necessary."
Mr Naumcevski, however, went on to depose that "I now fully realise and accept that I acted unlawfully and wrongfully in allowing the excavation works at the rear of the property to be carried out as far back towards the rear boundary of the property as they were." He stated that he now understands that the proper course for dealing with the problems he encountered and believed to have existed with the architectural plans was to approach the architect and the council for clarification. He recognised that he should not have allowed the excavation to take place on the property unless it was clear from the council approved plans that development consent had been given for the works. He also recognised that he should have advised the property owner to obtain an amendment to the development consent giving approval to the excavation works before any of those works were effected.
Mr Naumcevski informed the Court that he was "truly sorry" for his conduct and that he "did the wrong thing" and that he took full responsibility for his actions. He went on to express the sentiment that he had "learned a lesson" as a result of the prosecution and that in the future he must be careful to ensure that when conducting himself as a builder that any works he carries out, or that are carried out under his supervision, have been granted development consent by the appropriate consent authority.
Mr Naumcevski offered the Court his solemn commitment that he would endeavour to comply fully and strictly with his lawful obligations as a builder.
Mr Naumcevski was cross-examined. Somewhat surprisingly, he resiled from written evidence by stating the following:
(a) first, that he was not the principal builder for the site. He had merely arranged subcontractors for the owner, who was the principal builder;
(b) second, that he was not aware that the excavation had taken place and that he was not present at the property when it had occurred. Again, his role had been to organise subcontractors on behalf of the owner/builder to carry out the excavation. His role in relation to the excavation was as a supervisor only;
(c) third, at the time the excavation took place it was not the case that the architectural plans were unclear to him. To the extent that his affidavit suggested otherwise, this evidence was no more than a reconstruction of what had occurred after the event; and
(d) fourth, he had told the owner to obtain all relevant approvals for the works to be carried out. While he was aware that consent had been given for the demolition works, he had assumed, based on his request to the owner, that consent had also been obtained for the excavation works.
Mr Naumcevski conceded, however, that had any ambiguity in the plans existed this could have been clarified with the principal certifying authority and that he had not done so.
With the exception of the above mentioned concession, the Court rejects in its entirety the oral evidence of Mr Naumcevski for at least two reasons:
(a) first, it is wholly inconsistent with his affidavit evidence sworn on 22 November 2011. In short, his written evidence is to the effect that the architectural drawings and council approved plans were unclear and that "in order for the plans to result in a workable development" further excavation beyond that which was depicted was required. Mr Naumcevski therefore permitted the excavation works to occur as a practical solution to the problem he perceived existed. His affidavit therefore deposed to his state of mind at the time the excavation works were being carried out. This evidence is incompatible with his oral testimony that he was not aware that the excavation had taken place. I do not accept Mr Naumcevski's attempted reconciliation of the conflicting evidence. The language used in the affidavit does not support his explanation; and
(b) second, Mr Naumcevski's oral evidence that he was not aware of the excavation and that he had told the owner to obtain all necessary development consents, and moreover, that he had relied on the owner doing so in engaging the excavation subcontractors was critical evidence that ought to have been contained in his affidavit. That such significant evidence was omitted is strongly suggestive that it was a recent fabrication by Mr Naumcevski.
Sentencing Principles and the Correct Approach to Sentencing
Section 3A of the Crimes (Sentencing Procedure) Act 1999 ("CSPA") sets out the purposes of imposing a sentence on an offender. The most relevant purposes for which a sentence should be imposed on Mr Naumcevski are those in s 3A(a), (b), (e), (f) and (g) of that Act.
It is a basic principle of sentencing law that the sentence imposed by the Court for an offence must both reflect, and be proportionate to, the objective circumstances of the offence and the personal or subjective circumstances of the offender (Veen v The Queen [1979] HCA 7; (1979) 143 CLR 458 at 490 and Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465 at 472).
The correct method of sentencing is the instinctive synthesis method where the judge identifies all the factors relevant to the sentence and weighs their significance in determining an appropriate sentence (Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 at [35]-[39], [50]-[84] and [136]-[139]).
Section 21A of the CSPA further identifies matters that the Court must take into account when sentencing, including those in aggravation (s 21A(2)) and those in mitigation (s 21A(3)).
The Objective Circumstances of the Offence
The primary factor the Court must consider when determining sentence is the objective gravity or seriousness of the offence. In determining the objective gravity or seriousness of the offence, the circumstances of the offence to which the Court may have regard include (Bentley v BGP Properties Pty Ltd [2006] NSWLEC 34; (2006) 145 LGERA 234 at [163], Gittany Constructions Pty Ltd v Sutherland Shire Council [2006] NSWLEC 242; (2006) 145 LGERA 189 at [110] and Plath v Rawson [2009] NSWLEC 178; (2009) 170 LGERA 253 at [48] ):
(a) the nature of the offence;
(b) the maximum penalty for the offence;
(c) the harm caused to the environment by the commission of the offence;
(d) Mr Naumcevski's state of mind in committing the offence;
(e) Mr Naumcevski's reasons for committing the offence;
(f) the foreseeability of the risk of harm to the environment;
(g) the practical measures available to Mr Naumcevski to avoid harm to the environment; and
(h) Mr Naumcevski's control over the causes of harm to the environment.
Nature of the Offence
A fundamental consideration of relevance to environmental offences is the degree to which the offender's conduct would offend against the legislative objectives expressed in the statutory offence (Director-General, Department of Environment and Climate Change v Rae [2009] NSWLEC 137; (2009) 168 LGERA 121 at [15] and Rawson at [49]).
The actions of Mr Naumcevski in carrying out the excavation works absent development consent eroded the planning controls under the EPAA and offended against the legislative objectives in s 5 of that Act, namely, at the very least:
(a) to encourage the proper management, development and conservation of cities for the purpose of promoting the social and economic welfare of the community and a better environment (s 5(a)(i));
(b) to encourage the promotion and co-ordination of the orderly and economic use and development of land (s 5(a)(ii)); and
(c) to provide increased opportunity for public involvement and participation in environmental planning and assessment (s 5(c)).
Maximum Penalty
The maximum statutory penalty is of significance in determining the objective gravity of the offence (Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 at 698).
The maximum penalty for the offence is $1,100,000 (s 126 of the EPAA). This demonstrates the seriousness with which Parliament views such an offence.
Having said this, it must be recognised that there is a broad spectrum of matters that can give rise to an offence under s 125 of the EPAA (Council of the Municipality of Kiama v Pacific Real Estate (Warilla Pty Ltd) [2009] NSWLEC 191 at [71] and Cessnock City Council v Bimbadgen Estate Pty Ltd (No 2) [2011] NSWLEC 140 at [59]).
Harm to the Environment
The extent of harm caused, or likely to be caused, by the commission of the offence can increase the objective seriousness of the offence. Harm to the environment need not only be considered in terms of actual harm, but must also include the potential or risk of harm (Environment Protection Authority v Waste Recycling and Processing Corp [2006] NSWLEC 419; (2006) 148 LGERA 299 at [145]-[147]).
It was agreed between the parties that although there was substantial alteration to the landform, no actual harm was caused to the environment by the commission of the offence. There was also no evidence that any adjoining residential occupant had suffered any diminution to the amenity of their land as a consequence of the unlawful excavation, which was relatively small in scale and was confined to the land.
However, as was submitted by the prosecutor and as is noted above, the commission of the offence by Mr Naumcevski clearly had the effect of undermining the planning controls under the EPAA (Lane Cove Council v Wu [2011] NSWLEC 43 at [45], Mosman Municipal Council v Menai Excavations Pty Ltd [2002] NSWLEC 132; (2002) 122 LGERA 89 at [35] and Bimbadgen at [62]). The council, as consent authority, was denied the opportunity to prospectively consider and assess the proposed excavation and the adjoining occupants were denied the opportunity of objecting to, or making submissions in respect of, the building works.
However, against these observations, it must be taken into account that development consent was subsequently granted in the respect of the works and a construction certificate was issued by the council.
Mr Naumcevski's State of Mind
A strict liability offence, such as the offence in question, that is committed intentionally, negligently or recklessly will be objectively more serious than one not so committed (Rae at [42], Gittany at [123] and Garrett v Freeman (No 5) [2009] NSWLEC 1; (2009) 164 LGERA 287 at [68]).
It was a matter of some dispute whether or not Mr Naumcevski had, as the prosecutor submitted, committed the offence intentionally or recklessly and not, as submitted by Mr Naumcevski, inadvertently.
As stated above, having rejected Mr Naumcevski's oral evidence, the Court has no hesitation in finding that Mr Naumcevski was the principal builder on the site, and moreover, that he was aware of the excavation at the time it was being carried out. These findings are consistent with the evidence contained in his affidavit.
However, the Court cannot find that Mr Naumcevski committed the offence deliberately. The evidence does not establish this to the requisite criminal standard.
Having said this, the Court has no such difficulty in finding that Mr Naumcevski acted recklessly in the commission of the offence. This is because:
(a) Mr Naumcevski was provided with a copy of the plans approved by council, which he reviewed:
(b) in reviewing those plans he concluded that because of the steep sloping nature of the site, the number of steps depicted on the site plan were not sufficient to enable a person walking on foot to reach the top level of the yard. This realisation, coupled with his opinion that the plans were not drawn to scale, resulted in Mr Naumcevski forming the opinion that the development was not workable and that the plans were incorrect. Put another way, Mr Naumcevski was aware, as he conceded in his affidavit, that the plans were not clear; and
(c) armed with this awareness of the ambiguity of the plans, Mr Naumcevski proceeded with the increased excavation in order for the plans to result in a "workable development", rather than seek clarification and ensure that his proposed practical solution was in accordance with the development consent; and
(d) to fail to obtain clarification of the plans or to seek development consent for an excavation of up to 2.5m, which could not be justified on any interpretation of the plans, even Mr Naumcevski's, was clearly unreasonable.
It follows that in rejecting Mr Naumcevski's submission that the unlawful act should be characterised as a mere mistake, and finding that he acted recklessly in committing the offence, the objective seriousness of the offence must increase.
Reasons for Committing the Offence
A factor by which the objective seriousness of the offence may be augmented is the reason for its commisson (Axer Pty Ltd v Environment Protection Authority (1993) 113 LGERA 357 at 366; Bentley at [237]; Gittany at [140]; Rae at [47]). If the offence is found to be committed for financial gain this will increase its objective seriousness (Gittany at [141], Bentley at [246]-[247], Pittwater Council v Scahill [2009] NSWLEC 12; (2009) 165 LGERA 289 at [82] and CSPA s 21A(2)(o)).
Despite Mr Naumcevski's explanation that "I had to start to get work done and get money in the door" as the reason why he had not applied for a construction certificate, Mr Naumcevski did not in fact receive any remuneration for assisting Ms Faraos in the carrying out of works on her land. I accept Mr Naumcevski's uncontested evidence that he suffered an economic loss in having to pay the various tradespeople for their work on the land. I therefore find that the offence was not committed for financial gain.
Foreseeability of the Risk of Harm
The extent to which Mr Naumcevski could reasonably have foreseen the harm caused by the commission of the offence is a relevant factor to be taken into account in the determination of sentence.
Given the nature and extent of the excavation work, given the fact that he carried out the excavation work without first ascertaining if development consent had been granted, and given that Mr Naumcevski did not seek assistance in interpreting the plans, I find that the harm caused or likely to be caused by the commission of the offence must have been reasonably foreseen by him.
Control Over the Causes of Harm and the Practical Measures Available Mr Naumcevski to Avoid It
Accepting, as I do, that Mr Naumcevski was the principal builder for the property, that he was the person responsible for assisting the property owner with identifying suitable tradespeople to carry out work on the land, as well as the person responsible for supervising and coordinating the activities of those tradespeople, it follows that Mr Naumcevski had complete control over the causes that gave rise to the offence.
Further, and as Mr Naumcevski accepts, there were practical measures available to him to prevent the harm, namely, he could have ensured that development consent had been obtained before commencing the excavation works and he could have made enquiries to clarify any ambiguity in the plans.
The Offence is One of Low Objective Gravity
Having regard to the factors discussed above, and notwithstanding Mr Naumcevski's reckless state of mind at the time of the commission of the offence, I find that the offence committed is one of low objective gravity.
The Subjective Circumstances of Mr Naumcevski
When considering the appropriate penalty to be imposed, the Court must take into account the mitigating and aggravating factors personal to Mr Naumcevski (s 21A(2) and (3) of the CSPA).
The subjective circumstances of Mr Naumcevski to be considered relevantly include:
(a) any prior criminal record;
(b) any plea of guilty;
(c) any contrition and remorse expressed;
(d) Mr Naumcevski's good character; and
(e) any cooperation with, and assistance to, the regulatory authorities provided by Mr Naumcevski.
Prior Criminality
Mr Naumcevski has no prior convictions for any offences (s 21A(3)(e) of the CSPA).
Prior Good Character of Mr Naumcevski
I accept, absent any evidence to the contrary, that Mr Naumcevski is, but for the commission of this offence, of good character (s 21A(3)(f) of the CSPA).
I note that in this regard a testimonial letter attesting to the trustworthiness of Mr Naumcevski was put by him before the Court. Little, if any, weight was placed on the letter because there was no indication that the author was made aware of the offence to which Mr Naumcevski has pleaded guilty at the time it was written.
Assistance to Authorities
Mr Naumcevski has cooperated with the prosecutor throughout the conduct of this matter, starting with the investigation on the land, continuing through to the provision of an interview at the council, and culminating in the filing of a statement of agreed facts (ss 21A(3)(m) and 23 of the CSPA).
Plea of Guilty
Mr Naumcevski pleaded guilty to the offence at the third occasion the matter was before the Court. This was not the first available opportunity, but it should still be afforded a substantial discount for the utilitarian value of the plea of guilty (R v Thomson; R v Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383 and ss 21A(3)(k) and 22 of the CSPA). In my opinion, a discount of 22 % is appropriate.
Contrition and Remorse
The contrition and remorse of a defendant is able to be taken into account as mitigating factors in determining the appropriate sentence for an offence (s 21A(3)(i) of the CSPA). Remorse for the commission of the offence with which Mr Naumcevski has been charged has been expressed by him in his affidavit. I take this into account as a mitigating factor to be considered in determining an appropriate sentence. However, I do not give it full weight given Mr Naumcevski's willingness to depart from the contents of his written evidence during his oral testimony.
Costs
There is no question that this Court is empowered to order an offender to pay the prosecutor's costs as specified or as may be determined pursuant to ss 257B and 257G of the Criminal Procedure Act 1986.
The payment of a prosecutor's costs is an aspect of punishment (Environment Protection Authority v Barnes [2006] NSWCCA 246 at [78] and Rae at [68]) and may be considered in the determination of the appropriate penalty, including as a factor that acts in the reduction of any penalty to be imposed.
Mr Naumcevski submitted that the fact that the proceedings could have been instituted in the Local Court was an additional factor to be taken into account in mitigation. This was because had this forum been chosen by the prosecutor to commence proceedings, the costs that have been incurred in the prosecution of the offence would have been substantially less, costs for which Mr Naumcevski accepts he is now liable.
The estimate of those costs is approximately $37,500 on a party-party basis. These costs were described as "disproportionate" by Mr Naumcevski when compared to the likely penalty to be imposed by the Court.
Ultimately it is a matter of prosecutorial discretion as to which jurisdiction proceedings are commenced in. I do not consider that the prosector has abused his discretion by commencing proceedings in Class 5 of this Court's jurisdiction.
Nor do I consider that the estimated costs of the prosecution are excessive. In any event, the Court should be loathe to make such a finding absent evidence put before it as to the work required to prepare the matter for hearing. It is not uncommon that cases that appear straightforward in their presentation often have a lengthy procedural history involving a considerable volume of correspondence passing between the parties to which the Court is not privy.
While the costs are undeniably disproportionate to the monetary penalty to be imposed by the Court they are nevertheless, in my experience, not inconsistent with the quantum of costs that offenders regularly agree to pay in this Court for matters of this size and complexity. In this regard the payment of costs, while a mitigating factor which the Court takes into account, acts as an additional deterrent against the commission of criminal offences under the EPAA and other environmental legislation.
Conclusion on Subjective Considerations
The subjective considerations of Mr Naumcevski operate to mitigate to a reasonable degree the penalty to be imposed by the Court.
The Appropriate Sentence to be Imposed on Mr Naumcevski
The imposition of a sentence serves a number of purposes. As s 3A of the CSPA sets out, these purposes include retribution and denunciation, as well as deterrence, both specific and general.
Deterrence
The sentence must be sufficient to specifically deter the defendant from repeating the conduct that resulted in the commission of the offence in the future in the hope that only nominal penalties will be applied. There is also a need for the sentence to serve as a general deterrent to prevent others committing similar offences against the EPAA (Plath v Hunter Valley Property Management Pty Ltd [2010] NSWLEC 264 at [34], Scahill at [109] and Axer at 367).
The parties accepted that any penalty imposed by the Court must have embedded in it an element of general deterrence to ensure that others engaged in the building trade do not carry out unapproved works. In Scahill Preston CJ appositely stated (at [46]):
46 There is a need for the upholding of the integrity of the system of planning and development control. This system depends on persons taking steps to obey the law by ascertaining when development consent is required and then obtaining development consent before carrying out development: Byron Shire Council v Fletcher [2005] NSWLEC 706; (2005) 143 LGERA 155 at [60]-[61]; Cameron v Eurobodalla Shire Council [2006] NSWLEC 47; (2006) 146 LGERA 349 at [72]-[80]; Byers v Leichhardt Municipal Council [2006] NSWLEC 82 at [83], [85]; Gittany Constructions Pty Ltd v Sutherland Shire Council at [104]; and Garrett v Freeman (No 5) (2009) 164 LGERA 287 at [58]. Development must be carried out in accordance with the terms of the development consent obtained: Gittany Constructions Pty Ltd v Sutherland Shire Council at [105].
See also Keir v Sutherland Shire Council [2004] NSWLEC 754 at [12], [13] and [15] and Lahood v Strathfield Municipal Council [2007] NSWLEC 714 at [20].
The prosecution submitted that, contrary to the argument advanced by Mr Naumcevski, an element of specific deterrence was warranted. Notwithstanding Mr Naumcevski' s statements in his affidavit that he does not intend to commit "another offence against the Act", the Court is not convinced that this will not occur. This lack of conviction derives, in part, from Mr Naumcevski's eagerness to depart from his sworn written testimony during his oral evidence in an attempt to deflect blame from himself. Accordingly, the Court takes into account the need for specific deterrence with respect to Mr Naumcevski.
Denunciation and Retribution
The imposition of an appropriate sentence serves the purpose of ensuring that retribution and denunciation are properly addressed. The sentence of this Court is a public denunciation of Mr Naumcevski and must ensure that he is held accountable for his actions and is adequately punished (Rae at [8]-[9], Plath v Glover [2010] NSWLEC 119 at [67] and ss 3A(a) and (e) of the CSPA).
Consistency in Sentencing
A relevant consideration in sentencing is the ascertainment of the existence of a general pattern of sentencing by the Court for offences such as the offence in question (Gittany at [179]-[182] and Rae at [69]). The proper approach is for the Court to look at whether the sentence is within the range appropriate to the gravity of the particular offence and to the subjective circumstances of the particular offender, and not whether it is more severe or more lenient than some other sentence which merely forms part of that range (Gittany at [182]).
Of course care must be taken because each case is different and a sentence in one case does not demonstrate the limits of a sentencing judge's discretion (Axer at 365, Cabonne Shire Council v Environment Protection Authority [2001] NSWCCA 280; (2001) 115 LGERA 304 at 312 and Hili v The Queen; Jones v The Queen [2010] HCA 45; (2010) 272 ALR 465 at [54]).
In Bimbadgen I provided a summary of the relevant recent decisions of this Court for similar offences at [99]-[100]. I adopt, without repeating, that summary for present purposes.
In Cessnock , the unauthorised development works consisted of excavation carried out to provide parking and to enlarge an amphitheatre for outdoor concerts. I accept the submissions of Mr Naumcevski that the earthworks in that case were far greater in scope and severity than those the subject of the present prosecution, and that in addition, they were committed deliberately insofar as Bimbadgen had been told by council officers that development consent would be required but it proceeded with the construction in any event. Further, the Court found that there was a financial motive underlying the offence. The Court imposed a fine of $20,000 after a discount was given for mitigating factors and ordered that Bimbadgen pay the prosecutor's costs as agreed or assessed.
Mr Naumcevski also referred the Court to the decision in Willoughby City Council v BCPD Pty [2010] NSWLEC 163. However, again, the circumstances of that case disclose the commission of a more serious offence. There a builder, who claimed he had been misled by an architect concerning the scope of works that had received consent, demolished a California bungalow that was located in a designated heritage conservation area. Actual environmental harm plainly resulted. The penalty imposed by the Court was $30,000.
Mr Naumcevski submitted that the case of Holroyd City Council v Ghannoum [2007] NSWLEC 351 was the closest on its facts to the present prosecution in terms of the nature and extent of the works involved. There the unauthorised works consisted of the excavation of an area of approximately 9m wide, 15m long and approximately 3-4m deep and included the construction and placement of concrete panels along the perimeter of the excavated area and the construction of a concrete slab on the base of the excavated area. The works were located beneath the footprint of a dwelling house for which consent had been granted. The Court held that the unlawful works had not caused significant environmental harm in terms of the visual or other amenity impacts on surrounding properties. The conduct was, however, more serious than that in the present case because in Ghannoum the Court held that there was an element of premeditation in the carrying out to the works. Further, the Court found that the defendant had given untruthful answers when he was questioned by council officers concerning the reason why he had carried out the unlawful building works. The Court fined the defendant the sum of $11,250 and ordered the defendant to pay the prosecutor's costs.
Monetary Penalty to be Imposed
Taking into account the objective circumstances of the commission of the offence, the subjective circumstances of Mr Naumcevski and the general pattern of sentencing for offences such as the one committed by Mr Naumcevski, I find that a fine of $20,000, discounted by 30%, should be imposed. The total monetary penalty to be imposed is therefore $14,000.
Orders
For the reasons articulated above, the Court makes the following orders:
(1) Mr Naumcevski is convicted of the offence as charged;
(2) Mr Naumcevski is fined the sum of $14,000;
(3) pursuant to s 257B of the Criminal Procedure Act 1986 Mr Naumcevski is ordered to pay the prosecutor's legal and investigation costs as determined under s 257G of that Act; and
(4) the exhibits are to be returned.
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Decision last updated: 06 December 2011
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