Ousley Pty Limited v Warringah Shire Council

[1998] NSWLEC 139

Land and Environment Court

of New South Wales

CITATION:	DAVID MULCAHY ON BEHALF OF CANTERBURY CITY COUNCIL v. SUDHAKAR RAO [1998] NSWLEC 139 (10 February 1998) [1998] NSWLEC 63
PARTIES:	DAVID MULCAHY ON BEHALF OF CANTERBURY CITY COUNCIL v. SUDHAKAR RAO
FILE NUMBER(S):	50026 & 50027 of 1997
CORAM:	Pearlman J
KEY ISSUES:	:- Prosecution - statutory offences - destruction of trees - breaches of conditions of development consent - strict liability - honest and reasonable belief
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979 ss 76(2), 125(1) Crimes Act 1900
CASES CITED:	Power v Coopers Construction Pty Ltd (Talbot J, 6 October 1995, unreported; Power v Coopers Construction Pty Ltd, s 76 ; He Kaw Teh v The Queen (1985) 157 CLR 523; Power v Penthill House Pty Ltd and Ors (1993) 80 LGERA 247; Sherras v De Rutzen (1895) 1 QB 918
DATES OF HEARING:	10 February 1998
EX TEMPORE JUDGMENT DATE :	08/10/1998
LEGAL REPRESENTATIVES:	Mr A M Hawkes, Solicitor Mr M J Neil QC

JUDGMENT:

The defendant, Dr Rao, is charged with two offences by summonses issued by the prosecutor, David Mulcahy on behalf of Canterbury City Council.

The first summons alleges that on or about 12 September 1996, the defendant caused development consent for alterations and additions to a funeral parlour at 447 Burwood Road, Belmore of which he is the owner, to be implemented contrary to conditions 6 and 8 of the said consent.

Condition 6 provides:

“A detailed landscape plan be prepared by a qualified landscape architect or an approved consultant for submission to and approval of Council prior to the release of approved building plans. The Plans should provide for the retention of the row of pine trees towards the rear of the site, behind the proposed parking spaces 5, 6, 7 & 8 and the tree located on car spaces 3 & 4 as shown on the Plans.”

Condition 8 provides:

“Landscaping of the site be carried out in accordance with the approved landscape plan, such landscaping to be maintained at all times to Council’s satisfaction.”

The first summons provides particulars by stating that a detailed landscaping plan providing for the retention of the row of pine trees towards the rear of the site was approved by the council on 20 June 1995, but it goes on to allege that the landscaping of the site was not carried out in accordance with the approved landscape plan insofar as the row of pine trees towards the rear of the site were removed from the site on or about 12 September 1996.

The second summons alleges that the development consent was implemented contrary to condition 7. Condition 7 provides:

“The car park layout is to be amended to ensure the retention of the Fiddlewood (Citharexylum Spinosum) by incorporating a 1.5m. landscape strip along Leylands Parade frontage. The tree shall have a suitable barrier erected prior to and maintained during building operations.”

The particulars provided in the second summons are that building operations commenced prior to 18 September 1996 and on 18 September 1996 the fiddlewood tree did not have a suitable barrier erected during the building operations and thereby suffered damage.

The defendant has pleaded not guilty to both of these charges which are brought under s 125(1) of the Environmental Planning and Assessment Act 1979 (“the EP&A Act”) which is in the following terms:

“125(1) Where any matter or thing is by or under this Act, other than by or under the regulations, directed or forbidden to be done, or where the Minister, the Director, a council or any other person is authorised by or under this Act, other than by or under the regulations, to direct any matter or thing to be done, or to forbid any matter or thing to be done, and that matter or thing if so directed to be done remains undone, or if so forbidden to be done is done, a person offending against that direction or prohibition shall be guilty of an offence against this Act.”

Before I turn to the facts of this matter I should deal with a number of technical matters which were raised by Mr Neil on behalf of the defendant in relation to the summonses. The first and more serious of these matters concerns the alleged offence and the way the alleged offence has been expressed in the summonses. Mr Neil focuses on the words which allege that the defendant caused “development consent to be implemented contrary to”, in the first summons, conditions 6 and 8, and in the second summons, condition 7.

As I understood his argument, Mr Neil says that s 125 relies on a matter being done when it is forbidden to be done and in view of the decision of Talbot J in Power v Coopers Construction Pty Ltd (Talbot J, 6 October 1995, unreported) it is correct to say that a condition of a development consent granted under the EP&A Act is not encompassed directly within s 125 simply by reference to it, because s 122(b)(3) refers only to div 3 of the EP&A Act and not div 4 in which s 125 is found.

However, as Talbot J found in Power v Coopers Construction Pty Ltd , s 76 is a relevant section in this connection. Section 76(2) provides as follows:

“76(2) Subject to this Act, where an environmental planning instrument provides the development specified therein may not be carried out except with consent under this Act being obtained therefor, a person shall not carry out that development on land to which that provision applies unless:

(a) that consent has been obtained and is in force under this Act; and

(b) the development is carried out in accordance with the provisions of any conditions subject to which that consent was granted and of that instrument.”

Here there is a development consent. There is no doubt that that development consent is in force under the EP&A Act. However, Mr Neil’s submission is that the development the subject of that consent is still being carried out in the sense that it has not been completed. Accordingly, where the summons provides that the development consent has been implemented contrary to the specified conditions then, it is raising an offence which is not known to law because, as I understand him, the consent not having been completed cannot be said to be implemented contrary to conditions of consent.

I reject that argument. I think that the important words of s 76(2) in this connection are found in subcl (b), namely, “… is carried out in accordance with the provisions of any conditions”. Section 99(4) provides that development is commenced when it is physically commenced. The view that I take is that s 76 provides that where a development consent is granted is in force and is carried out (that is, not “ has been carried out ” and not “ has been completed ”) then, if it is carried out in accordance with the provisions of the conditions, there is no breach.

Here there is a development consent which has not, according to the evidence, been completely finalised. But it has been the subject of work since April 1996. In my opinion, it is development which is to be carried out in accordance with the conditions. The evidence is that it has not been carried out in accordance with the conditions and accordingly s 125 applies and provides for an offence which is the subject of each of the summonses.

The second matter which Mr Neil raises in relation to the first summons refers, if I may call it this for compendiousness, the cutting down of the trees. The first summons alleges that the consent was implemented contrary to both conditions 6 and 8, whereas in fact condition 6 merely provides for the provision of a detailed landscape plan. That has been provided and has been approved. There is alleged in the summons no breach of condition 6. There is an allegation of a breach of condition 8 in that landscaping was not carried out in accordance with the approved landscape plan.

I do not think that this matter should cause the dismissal of this summons. Read as a whole, the summons sets out the requirements under the development consent. Condition 6 required a landscaping plan which was to provide that the row of pine trees would be retained. Condition 8 required the landscaping to be carried out in accordance with that approved plan. The particulars of the offence make it clear, on the face of the summons and from a fair reading of it, that the breach that is alleged is the cutting down of the row of pine trees towards the rear of the site not being in accordance with the approved plan which provided that they should, with two exceptions, remain in existence.

The third complaint relates to the second summons about the fiddlewood tree. It is pointed out that it uses the words “and thereby suffered damage” in relation to its allegation that a suitable barrier was not erected during the building operations. That is not an element of any offence and, accordingly, in Mr Neil's submission, the summons is defective because of it. However, I do not think that those words amounted to more than particulars of the offence which was alleged which was an offence contrary to condition 7. Condition 7 provided that the suitable barrier was to be erected and the allegation is that a suitable barrier was not erected and the consequence was damage to the fiddlewood tree.

The last complaint relates to the second summons. Mr Neil says that there is no offence under the EP&A Act for not providing a suitable barrier to be erected prior to and maintained during the building operations. There is no provision of the EP&A Act nor any regulation which provides what a suitable barrier is. However I think that this misconceives what the summons does. The summons does not allege that there was a breach of a requirement in the EP&A Act nor in the regulations to provide a suitable barrier. The summons alleges a breach of a requirement in the EP&A Act to carry out development in accordance with development consent and the conditions upon which it was granted. One of those conditions provided that there would be a suitable barrier. The offence is clearly set out in the summons and it is not defective.

I deal, first, with the trees. The evidence is quite clear and beyond reasonable doubt that the trees were cut down. They were pine trees situated at the rear of the site. There is some doubt as to how many there were. The documents are not clear as to whether there were nine or ten. Photographic evidence suggests six and Dr Rao says there were six. The question is whether the evidence establishes that Dr Rao authorised the cutting down of those trees and if the evidence so shows then he will be guilty of an offence as charged.

If he did not so authorise the cutting down of the trees, then the question arises as to whether an offence under s 125 is an offence of strict liability. According to the various authorities to which I have been directed today it is an offence where it is not necessary for the prosecution to prove mens rea but the defendant has available to him a defence of an honest and reasonable belief in a set of facts which, if true, would exonerate him from culpability. The question then would be whether that honest and reasonable belief had been made out.

There is a complete conflict on this matter between the defendant, Dr Rao, and his builder, Mr Vince Caporale. Mr Caporale was contracted by Dr Rao to carry out the development which was the subject of the development consent. It involved alterations and additions to the funeral parlour at 447 Burwood Road, Belmore. The approved engineering plans showed that there was to be a drain or stormwater disposal which came across the site at the rear.

According to Mr Caporale's evidence, (which appears in an affidavit which he swore for the purpose of a prosecution made against him arising out of the same facts) he had a conversation with Dr Rao in relation to the trees. That conversation appears in cl 12 of his affidavit but it was a conversation which he repeated in giving oral evidence in this case and he repeated it again in cross-examination. He said that he was told by the plumber that three trees at the northern end of the rear of the site were in the way of the laying of the pipes and they would have to come down. There were to be two or three trees, in Mr Caporale's understanding.

The consent already provided that two trees of the six trees around about the centre of the row of trees were also to be removed. So this would mean that four or five trees were to come down. When faced with that problem, according to Mr Caporale, he met Dr Rao on site and told him that there was this problem about the cutting down of two or three trees because the sewer pipes had to be laid. The evidence of Mr Caporale is that he asked Dr Rao what to do and Dr Rao said “Do whatever you have to do but it would look odd to have only three trees remaining. Get rid of the lot”.

Dr Rao said that he did not have a conversation to that effect - that he did not have any conversation with Mr Caporale as to the removal of the trees. He said that he did not authorise Mr Caporale to cut down all the trees. He said that the first he knew about it was when he was contacted by Mr Mulcahy, the health and building surveyor employed by the council, on the telephone who told him that the trees had been cut down. So the evidence of Mr Caporale and Dr Rao is in direct conflict.

I am satisfied beyond reasonable doubt that Dr Rao authorised the cutting down of the trees. I say so for these reasons. In the landscaping plan which was ultimately approved there was an authorisation to cut down only two trees. But in the previous plans that had been furnished to the council, all of which were in evidence (ex “A”) and all of which are mentioned in the affidavit of Mr Mulcahy, there was a plan to remove those trees. Ultimately the council imposed a condition that they were to remain and that a landscape plan was to be furnished which showed them remaining.

Mr Caporale's evidence was that initially, when he was first contracted by Dr Rao, Dr Rao said that he wanted the trees to go. Furthermore it beggars belief that Mr Caporale would proceed to cut down the trees without any reference at all to Dr Rao. The evidence of Ms Steele, who is Dr Rao's secretary and a director of the funeral parlour, was that Mr Caporale would ring on occasions in relation to minor matters such as a change in tile work in the extensions or a change in paint work. There seems to be to me to be no plausible reason why, if Mr Caporale asked about those matters, he would not ask about the trees which he, as an experienced builder, would know were a serious matter.

Dr Rao gave evidence that he came to the Court in a taxi with Mr Caporale on at least one occasion in order to save some money, and that initially they engaged the same solicitor. If Dr Rao was so concerned and shocked by the breach of a condition of consent by Mr Caporale, I find it hard to believe that he would be so accommodating of Mr Caporale.

Furthermore there is no doubt that all the documents that have been tendered that went to the council did so under the authority of Dr Rao. He made the application for the development consent. He made the application for the building approval and both the development consent and building approval were given to him.

It is not necessary therefore for me to make a finding in relation to this summons as to whether the offence is one of strict liability. I am satisfied beyond reasonable doubt that Dr Rao authorised the cutting down of the pine trees situated at the rear of the site and that was contrary to the conditions of development consent and in particular condition 8. That constitutes an offence under s 125 of the EP&A Act.

I turn now to the question of the fiddlewood tree. What was required there, as I have earlier said, was a suitable barrier to be erected. The evidence of the landscape architect employed by the council, Ms Tisdell, is that she saw no barrier of the sort that she considered appropriate erected around the fiddlewood tree on the site. She conceded that she had given no plan of what that barrier was to comprise and had given no details of it. But she said that she saw no barrier. Mr Caporale's evidence was that there was a barrier comprised of mesh and iron stakes but that he had removed it in order to build a brick fence for which Dr Rao had building approval.

Dr Rao's evidence was that he thought that there was a gate, a hoarding and a paling fence in the area of the fiddlewood tree and that those structures comprised a barrier which was in accordance with the condition of development consent. However, I think that that reference to the gate, hoarding and paling fence misunderstands the purpose of condition 7.

Condition 7 is not directed to keeping vandals out or seeing that traffic does not enter the premises. Mr Neil said that the council had concern about traffic and vehicular movement and there is no doubt from the conditions of consent that it did have that concern, but it is clear from the conditions of consent that its concern was for the protection of the fiddlewood tree. When it imposed a condition that a barrier around the tree be erected and kept in place during the building operations, the purpose of the barrier was to protect the tree from the building operations.

That appears when condition 7 is read in full. It refers to ensuring the retention of the fiddlewood tree and it provides that the tree shall have a suitable barrier erected prior to and maintained during building operations. So it is no answer to the second summons to say that there were other structures in the nature of barriers which would fulfil the condition. There was no such structure and accordingly the condition was breached.

The question, however, in this case is whether Dr Rao is responsible for that breach. There is no evidence that he authorised the builder, Mr Caporale, to ignore the condition requiring a barrier so that raises the question as to whether the offence is one of strict liability, and if it is one of strict liability, whether Dr Rao has made out a defence of an honest and reasonable belief in a set of facts which, if true, would exonerate him from culpability.

I think that the offence under s 125 is one of strict liability. As has been pointed out in a number of cases, but I refer in particular to the leading case on the matter which is He Kaw Teh v The Queen (1985) 157 CLR 523, there is a question as to whether offences of this nature require proof by the prosecutor of mens rea, that is, guilty intent, or whether they are instead offences of absolute liability, or whether there is a middle range of offence which is one known as strict liability, where a defence of honest and reasonable belief is available to the defence.

In order to determine whether an offence is one of strict liability, the judgment of Gibbs CJ in He Kaw Teh v The Queen sets out three tests (at pp 529 - 530). First, one looks at the words of the statute. Secondly, one looks at the subject matter with which the statute deals. Thirdly one looks at whether putting the defendant under strict liability will assist in the enforcement of the regulations. That test is precisely the test applied by Stein J in Power v Penthill House Pty Ltd and Ors (1993) 80 LGERA 247. In that case which dealt with s 125 his Honour said at p 253:

“Upon a reading of the statute as a whole and section 125 in particular, I find that a mental element is not required to be established. In my opinion breaches of consent conditions, such as the subject charge, are ones of strict liability. No defence of honest and reasonable belief has been raised by the defendants.”

That case was not followed by Talbot J in Power v Cooper Constructions in relation to the application of s 122, but that is not the matter which I am now considering. What I am now considering is the question of whether this is an offence of strict liability and I think that there is no reason to depart from the finding of Stein J.

I am fortified in that view by my understanding of the EP&A Act. Mr Neil acknowledges that the EP&A Act raises matters of public importance and social concern, but, because there are a vast number of matters with which it deals from the serious to the trivial, the Court should be loathe to find that the offence is one of strict liability. I think the very fact that it is the EP&A Act points to strict liability. Section 125 deals with precisely the sort of matters that were mentioned in Sherras v De Rutzen (1895) 1 QB 918 and that is that they are not criminal in any real sense but prohibited under penalty in the public interest.

The question then is whether any culpability of Dr Rao is excused by an honest and reasonable belief in a set of facts which if true would exculpate him.

What are those facts? First, that there was a barrier in existence. I do not think it reasonable for Dr Rao to hold the view that there was a barrier in existence of the sort that I have referred to for the protection of the tree. He could not hold that view by visual inspection because visual inspection would, on the evidence of Ms Tisdell, have shown him that there was no such barrier.

Was it an honest and reasonable belief on Dr Rao's part to think that because there was a gate and a paling fence and approved hoarding that there was a suitable barrier erected prior to and maintained during building operations in relation to the fiddlewood tree? That there were such structures is clear but whether they were erected in relation to the tree is certainly not clear. I do not think it is reasonable to think that those structures were erected in relation to the tree or that they formed a suitable barrier in relation to it. Therefore I find that the defence of honest and reasonable mistake has not been made out and there is no foundation for it.

My conclusion therefore is that the prosecution has made out its case in relation to the fiddlewood tree. I find that there was no suitable barrier erected prior to and maintained during building operations as required by condition 7 of the consent and that accordingly, the defendant is guilty of an offence under s 125 of the EP&A Act.

Before I proceed to conviction and penalty I am happy for submissions to be made on behalf of the prosecution and for the defendant.

COUNSEL ADDRESSED ON COSTS AND PENALTY

I do not think that this case is an appropriate case for the application of s 556A of the Crimes Act 1900. I think that the circumstances that have led me to a finding of guilt on the part of Dr Rao on both offences are such that a fine should be imposed. I take into account, in coming to a penalty that, whilst the trees have gone and they should have been there, there was not such deliberate flouting of the law that would require the higher end of a range of penalties.

As to the fiddlewood tree, I take into account that it is still existing, that although it appears to have suffered some damage in Ms Tisdell's view. That is disputed and not finally established. It is, according to her evidence, doing the things that trees do when they recover. Therefore I think that a fine in the lesser end of the range would be appropriate.

I would propose to convict Dr Rao and fine him $3000 in relation to the first summons, that is, the offence concerning the trees. In relation to the second summons, that is, the offence concerning the fiddlewood tree, I would propose to fine him the amount of $1500. That is subject, of course, to determination of costs. As to that, I stand the matter over till 9.30 tomorrow morning. I will deal with final orders then.

I HEREBY CERTIFY THAT THIS AND THE PRECEDING 9 PAGES ARE A TRUE AND ACCURATE RECORD OF THE REASONS FOR JUDGMENT HEREIN OF THE HONOURABLE JUSTICE M L PEARLMAN AM.

Associate