Ulmarra Shire Council v Clarence River County Council

[1999] NSWLEC 42

Land and Environment Court

of New South Wales

CITATION:	Ulmarra Shire Council - V - Clarence River County Council [1999] NSWLEC 42
PARTIES	PROSECUTOR: ULMARRA SHIRE COUNCIL
DEFENDANT: CLARENCE RIVER COUNTY COUNCIL
NUMBER:	50090 of 1998
CORAM:	Lloyd J
KEY ISSUES:	:- Offences and penalties - circumstances calling for discretion under s556A Crimes Act 1900
LEGISLATION CITED:	Offences and penalties - circumstances calling for discretion under s556A Crimes Act 1900
DATES OF HEARING:	02/05/1999
EX TEMPORE JUDGMENT DATE:	02/05/1999
LEGAL REPRESENTATIVES:	PROSECUTOR: D P Wilson Solicitors: Minter Ellison DEFENDANT: J J Webster Solicitors: Burridge Harris & Flynn

JUDGMENT:

1. The defendant is charged with the offence that it carried out development, namely the construction of a flood wall on land at River Road, Ulmarra, within the area of Ulmarra Council without consent contrary to the provisions of the Ulmarra Local Environmental Plan 1992 and the Environmental Planning and Assessment Act 1979 .

2. The matter came before me on 5 November 1998. On that occasion Mr J J Webster, who appears for the defendant, submitted that there was no case to answer. In a reserved judgment delivered on 17 November 1998 I held, for the reasons I then gave, that there is a case to answer.

3. The relevant facts are set out in my judgment of 17 November 1998. They have been supplemented by some further evidence given today. The relevant facts may be briefly summarised as follows:

4. The defendant is a county council constituted under the Local Government Act 1993 for the purpose of carrying out flood mitigation works.

5. On 10 October 1997 there was a meeting between the general manager of the defendant, the defendant's consultant engineer, Mr M Gorrie; Mr G Lowcock, an officer employed by the prosecutor; and Mr T R Jenkins, an engineer and director of technical services employed by the prosecutor.

6. The prosecutor's officers were told that the defendant proposed to build a wall adjacent to the Ulmarra Swimming Pool and also adjacent to a boat ramp to replace an existing flood control wall. The prosecutor's officers were given a set of engineering plans for the proposed wall.

7. In late November 1997 work on the wall commenced. Part of an existing concrete flood wall or levy was demolished. A backhoe commenced excavating a trench and steel reinforcement for the wall was laid in the bottom of the trench. The wall was in due course completed.

8. The subject flood wall is a reinforced concrete wall about four metres high at its highest, thirty seven metres long and topped with a metal railing. The new wall is at about the same height as the wall which it replaced and is generally parallel to the wall which it replaced. The main difference between the two walls is that the original wall had not been constructed with proper footings, whereas the new wall has properly designed and constructed reinforced concrete footings.

9. On 21 November 1997 Mr Jenkins, on behalf of the prosecutor, sent a letter to the defendant asking, inter alia, for a copy of any approval granted under Part 5 of the Environmental Planning and Assessment Act for the works. The letter also raised a number of safety concerns held by the prosecutor. On the same day the defendant's general manager, Mr P Ham, responded by letter in relation to the safety concerns.

10. On 24 November the defendant's general manager further responded by letter noting that both he and the defendant's consulting engineer met the prosecutor's engineers on
10 October 1997, explained the proposed works, handed over engineering plans and invited comments thereon. The letter notes that no objections were raised either then or since that time. The letter goes on to assert that flood mitigation works do not require development consent.

11. The general manager of the defendant has given evidence before me today. He asserts that an assessment was carried out under Part 5 of the Environmental Planning and Assessment Act , such assessment having been carried out prior to the carrying out of any works. A copy of that assessment, dated 25 September 1997 has been tendered in evidence.

12. Mr D P Wilson, who appears on behalf of the prosecutor, has made a number of submissions which may be summarised as follows: He submits that a plea of guilty was entered at a late stage, that is to say, after my judgment on whether there was a case to answer. Next, Mr Wilson submits that it was not reasonably open for the defendant to hold the view that the wall came within the exception in the Model Provisions, referred to in my judgment of 17 November 1998 and therefore did not require development consent. Next he submits that this is a serious breach of the Act, which had a number of consequences which are described in some of the evidence in the proceedings on 5 November 1998 and that a significant penalty is called for.

13. Mr Wilson accepts however, that the wall is structurally sound, that it is a perfectly appropriate wall and it fulfils the purpose for which it was apparently designed. Finally, Mr Wilson submits that as a public authority the defendant should be taken to know the law. It was negligent in its disregard of the Act and, although not at the higher end of the scale, it is appropriate that a monetary penalty be important.

14. Mr Webster submits that this was not a flagrant or careless breach of the Act. The defendant carried out the assessment procedure provided by Part 5 of the Act. The defendant was under the impression that it was exempt from lodging a development application and that this was in the nature of a test case. There had been no previous request by the prosecutor for the making of development applications for similar works of this nature.

15. At the meeting on 10 October 1997, to which I have referred, no request was made for the making of a development application. In the prosecutor's letter of 21 November 1997 no request was made for a development application: there is only, relevantly, a request for a copy of any approval granted under Part 5 of the Environmental Planning & Assessment Act . The defendant was at all relevant times in possession of engineering plans which had been given to it by officers of the defendant.

16. The works are for the public benefit and no utility would be served in imposing a penalty. The defendant is of course a public body with limited funds which could best be expended in carrying out flood mitigation works for which the defendant was established.

17. In passing sentence for an offence on a person or body pleading guilty the Court must take into account the fact that the person or body has pleaded guilty: section 439(1)(A) of the Crimes Act 1900 . The Court must also take into account when the plea of guilty was indicated. The Court may accordingly reduce the sentence or penalty that it would otherwise have passed.

18. In this case I take into account the fact that the defendant has pleaded guilty, although at a stage when the hearing was part heard.

19. One of the purposes of the imposition of a penalty is its deterrent effect, both as a specific deterrent and a general deterrent. I am completely satisfied in this case that there is no risk of this particular defendant re-offending: it is now aware that structures of this kind require development consent. As far as a general deterrent is concerned, one must bear in mind that this particular structure is one which is an acceptable structure in engineering terms. It fulfils the purpose for which it was designed and there is no suggestion that, apart possibly from the height of the railing on top, any rectification or additional work is required.

20. In this case I am prepared to accept the submission of Mr Webster that the imposition of a penalty will serve no utility. The limited funds of the defendant would be far better spent in carrying out the flood mitigation works for which such funds are intended. The defendant will already be penalised by having to pay the costs of the prosecutor, which are not inconsiderable. It is therefore appropriate that I make the following orders:

1. The offence is found proved but pursuant to s 556A of the Crimes Act 1900 , as amended, without proceeding to a conviction, the charge is dismissed.

2. The defendant must pay the prosecutor's costs assessed in accordance with s 52 of the Land and Environment Court Act .

3. The exhibits may be returned.

I certify that this and the preceding 5 pages are a true copy of the reasons for judgment herein of the Honourable Mr Justice Lloyd.

Associate
Dated: 05/02/99