Pittwater Council v Walters - [2004] NSWLEC 75

Land and Environment Court

of New South Wales

CITATION: Pittwater Council v Walters [2004] NSWLEC 75

PARTIES:
PROSECUTOR
Pittwater Council
DEFENDANT
Robert Walters

FILE NUMBER(S): 50046 of 2003

CORAM: Talbot J

KEY ISSUES: Prosecution :- development without consent - plea of guilty - penalty

LEGISLATION CITED: Environmental Planning and Assessment Act 1979

CASES CITED:

DATES OF HEARING: 03/02/2004

EX TEMPORE
JUDGMENT DATE : 02/03/2004

LEGAL REPRESENTATIVES:

PROSECUTOR
Mr I J Hemmings (Barrister)
SOLICITORS
Mallesons Stephen Jaques
DEFENDANT
Mr P J McEwen SC with Ms A Pearman (Barrister)
SOLICITORS
Clinch Neville Long

JUDGMENT:

IN THE LAND AND

ENVIRONMENT COURT

OF NEW SOUTH WALES

50046 of 2003

Talbot J

3 February 2004

Pittwater Council

Prosecutor

Robert Walters

Defendant

Judgment

Introduction

1 HIS HONOUR: The defendant appears before the Court to answer the charge that between 4 June 2002 and 2 October 2002 at 1109 Barrenjoey Road, Palm Beach (“the premises”) he carried out development without first having obtained development consent from Pittwater Council (“the council”) in circumstances where such development could not be carried out without development consent first having been obtained.

2 There is a significant volume of documentary evidence before the Court and the Court also has the benefit of an agreed statement of facts. Both parties are represented by counsel who have brought the considerations into focus.

3 In general terms, the circumstances can be described as the defendant being instrumental and, indeed, taking full responsibility for substantial renovation works to the premises following the purchase for the purposes of continuing to carry out a retail business consisting of liquor sales and some grocery items.

4 To put the nature of the business in context the total cost was under $2,000,000, including the real estate. The business is now conducted by the defendant and his partner with the assistance of two employees. Those matters are relevant in an introductory context to keep the dimensions of the events which occurred in proper perspective.

5 According to the evidence and the submissions made by both parties, the works resulted in a re-structuring of the roof elements of the building and re-configuration of the interior as a consequence of the works required to the roof but, as I understand it, in some respects beyond that as well. However, the works that are the subject of the proceedings were undertaken in such a way that they are contained, or the result is contained, within the pre-existing envelope of the building and the footprint of the building essentially remains the same.

6 The evidence confirms that the building was apparently in a run-down state and that there were some concerns, particularly in regard to the presence of asbestos.

7 The council’s case, following the entry by the defendant of a plea of guilty, has concentrated on the fact that the defendant showed a marked reluctance to allow council officers to investigate what was taking place and to seek to have the defendant’s co-operation by the lodgement of a development consent, which the council…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2004] NSWLEC 75
Decision Date: 02/03/2004

CaseChat Overview and Summary

In the Land and Environment Court of New South Wales, the case of Pittwater Council v Walters involved a charge against Robert Walters for carrying out development at 1109 Barrenjoey Road, Palm Beach, without obtaining the necessary development consent from the Pittwater Council. The development, which amounted to a significant renovation of the premises for the purpose of continuing a retail business selling liquor and groceries, was conducted without adhering to the requirements of the Environmental Planning and Assessment Act 1979. Walters pleaded guilty to the charge, which acknowledged the mandatory requirement for development consent and the defendant's failure to comply with this statutory obligation.

The court needed to determine an appropriate penalty for Walters, taking into account the seriousness of the offence, the circumstances leading to the breach, and the need for both general and personal deterrence. The key issues included the extent of Walters' obstruction of council officers' attempts to inspect the site, his reliance on potentially erroneous professional advice, and his financial motivations behind the development. The court also had to balance these considerations with the fact that Walters had entered an early guilty plea and had cooperated to some extent in resolving the matter.

Talbot J considered the gravity of the offence, which is underscored by the substantial penalties provided under the EP&A Act, and the lack of environmental harm from the development. Despite acknowledging Walters' financial motivations and the advice he received, the court emphasised the importance of compliance with planning laws to protect public interests. The court imposed a penalty of $35,000, reflecting the mitigating factors such as Walters' early plea and apparent cooperation, while also ensuring the penalty served a deterrent purpose. Walters was also ordered to pay the prosecutor's costs.

The formal orders of the court included a conviction of the defendant, a penalty of $35,000, and an order for the defendant to pay the prosecutor's costs. The exhibits were to be returned to the defendant.

Orders