Willoughby City Council v BCPD Pty Ltd - [2010] NSWLEC 163

Land and Environment Court

of New South Wales

CITATION: Willoughby City Council v BCPD Pty Limited [2010] NSWLEC 163

PARTIES:
PROSECUTOR:
Willoughby City Council
DEFENDANT:
BCPD Pty Limited

FILE NUMBER(S): 50018 of 2010

CORAM: Biscoe J

KEY ISSUES: ENVIRONMENTAL OFFENCES :- sentencing of builder for demolition without development consent.

LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999, ss 3A, 22, 23
Environmental Planning and Assessment Act 1979, ss 76A(1)(a) , 125(1)

CASES CITED: Keir v Sutherland Shire Council [2004] NSWLEC 754
Mosman Municipal Council v Menai Excavations Pty Ltd [2002] NSWLEC 132, 122 LGERA 89
Mosman Municipal Council v Waratah Village Partners Pty Ltd [2003] NSWLEC 101

DATES OF HEARING: 30 August 2010

DATE OF JUDGMENT:
31 August 2010

LEGAL REPRESENTATIVES:
PROSECUTOR:
Mr T Howard, barrister
SOLICITORS
Mallesons
DEFENDANT:
Mr D Wilson, barrister
SOLICITORS
Andrew A Torok

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

BISCOE J

31 August 2010

50018 of 2010

WILLOUGHBY CITY COUNCIL v BCPD PTY LIMITED

JUDGMENT

1 HIS HONOUR: The defendant BCPD Pty Limited has pleaded guilty to the charge that between about 23 February 2009 and about 4 March 2009, at Willoughby, it committed an offence against s 125(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) in that it did the following thing which was forbidden to be done by s 76A(1)(a) of the Act:

“carried out development on land, being development which required development consent under the provisions of an environmental planning instrument which applied to the land, where a development consent had not been obtained and was not in force with respect to the development”

2 The defendant is now before the Court for sentencing.

3 The land on which the development was carried out was at 12 Second Avenue, East Willoughby. The forbidden development was demolition of a 1920’s Californian bungalow, except for the sandstone foundations, front steps and part of the front landing. The environmental planning instrument which required development consent for the development was the Willoughby Local Environmental Plan 1993 (WLEP). The land was located within the Willoughby Park Conservation Area, being a conservation area as defined in the WLEP.

4 The defendant was engaged to carry out demolition and building works on the land. The demolition the subject of the offence was carried out on its behalf by its sole director and shareholder, Mr Michael Mayhew, and persons acting under his authority and direction. Mr Mayhew was a licensed builder of some 20 years experience.

THE EVIDENCE

5 The bungalow on the land was in a bad state and could not be lived in comfortably. Alterations and additions to the bungalow were designed by Catherine Findlay, a building designer retained by the owners.

6 On 16 October 2008 Ms Finlay lodged a development application with the prosecutor council for proposed alterations and additions to the bungalow. The accompanying drawing depicted demolition of the rear part of the bungalow but the retention of the front part, including retention of…

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: [2010] NSWLEC 163
Decision Date: 31 August 2010

CaseChat Overview and Summary

The Land and Environment Court of New South Wales handed down a decision in the case of Willoughby City Council v BCPD Pty Limited. The defendant, BCPD Pty Limited, pleaded guilty to carrying out development without obtaining the requisite development consent, in contravention of the Environmental Planning and Assessment Act 1979. The development in question involved the demolition of a Californian bungalow, except for the sandstone foundations, front steps, and part of the front landing. The demolition was carried out without obtaining development consent from the Willoughby City Council. The court was required to determine an appropriate sentence for the defendant, considering the objective seriousness of the offence, the state of mind of the offender, and other relevant factors.

The court considered the purposes of sentencing, including deterrence, protection of the community, and denunciation of the offender's conduct. In determining the objective seriousness of the offence, the court took into account the nature of the offence, the potential harm caused to the environment, and the extent to which the offender's actions undermined the objectives of the Environmental Planning and Assessment Act 1979. The court also considered the defendant's state of mind, finding that while the defendant was misled by the building designer, he should have been more diligent in ensuring that he was working off council-approved plans. The court found that the objective seriousness of the offence was moderate, falling at the lower end of the mid-range of similar cases.

The court found that while the defendant was unlikely to re-offend, there was a need for general deterrence in cases involving unlawful building works. The court considered the defendant's good character, lack of prior convictions, and the assistance provided to the council as law enforcement authorities. The court also took into account the defendant's guilty plea and the discount for the utilitarian value of the plea.

In conclusion, the court found that a fine of $40,000, discounted by 25% for the defendant's guilty plea, was appropriate. The defendant was ordered to pay the prosecutor's costs in the sum of $45,000. The court also ordered that the defendant be convicted of the offence and that the exhibits be returned.

Orders