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Ku-ring-gai Council v Baynie [2017] NSWLEC 172 (11 December 2017)

Last Updated: 14 December 2017



Land and Environment Court
New South Wales

Case Name:
Ku-ring-gai Council v Baynie
Medium Neutral Citation:
Hearing Date(s):
11 September, 20 October 2017
Date of Orders:
11 December 2017
Decision Date:
11 December 2017
Jurisdiction:
Class 5
Before:
Pain J
Decision:
See par 85
Catchwords:
SENTENCE – guilty plea – development without consent – significant alterations to local heritage item – high impact on heritage significance of house – capacity to pay a fine considered – fine imposed

SENTENCE – guilty plea – development without consent – alterations to heritage item – offence committed intentionally – impact on heritage significance of house – totality principle applied

SENTENCE – guilty plea – failure to comply with order for demolition of unauthorised work and reinstatement of heritage item – capacity to pay a fine considered – fine imposed
Legislation Cited:
Cases Cited:
Axer Pty Ltd v Environment Protection Authority (1993) 113 LGERA 357
Bentley v BGP Properties Pty Ltd (2006) 145 LGERA 234; [2006] NSWLEC 34
Blue Mountains City Council v Carlon [2008] NSWLEC 296
Burwood Council v Doueihi (2013) 200 LGERA 152; [2013] NSWLEC 196
Burwood Council v Matthews [2013] NSWLEC 23
Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683
City of Sydney Council v Schwartz [2003] NSWLEC 261
Council of the City of Sydney v Adams [2015] NSWLEC 206
Council of the Municipality of Kiama v Pacific Real Estate (Warilla) Pty Ltd [2009] NSWLEC 191
Environment Protection Authority v Barnes [2006] NSWCCA 246
Environment Protection Authority v Douglass (No 2) [2002] NSWLEC 94
Environment Protection Authority v Emerald Peat Pty Ltd (in liq)  [1999] NSWLEC 147 
Environment Protection Authority v Wattke; Environment Protection Authority v Geerdink [2010] NSWLEC 24
Gittany Constructions Pty Ltd v Sutherland Shire Council (2006) 145 LGERA 189; [2006] NSWLEC 242
Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45
Hoare v R (1989) 167 CLR 348; [1989] HCA 33
Leichhardt Council v Geitonia Pty Ltd (No 7) [2015] NSWLEC 79
Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
Mosman Municipal Council v Menai Excavations Pty Ltd (2002) 122 LGERA 89; [2002] NSWLEC 132
Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39
Pittwater Council v Scahill (2009) 165 LGERA 289; [2009] NSWLEC 12
R v Olbrich (1999) 199 CLR 270; [1999] HCA 54
R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309
R v Visconti [1982] 2 NSWLR 104
Secretary, Department of Planning and Environment v Boggabri Coal Pty Ltd [2014] NSWLEC 154
Turnbull v Chief Executive of the Office of Environment and Heritage [2015] NSWCCA 278
Veen v The Queen (1979) 143 CLR 458; [1979] HCA 7
Veen v The Queen (No 2) (1988) 164 CLR 465; [1988] HCA 14
Category:
Sentence
Parties:
Ku-ring-gai Council (Prosecutor)
David Raymond Anthony Baynie (Defendant)
Representation:
COUNSEL:
J Smith (Prosecutor)
In person (Defendant)

SOLICITORS:
Matthews Folbigg Pty Ltd (Prosecutor)
File Number(s):
17/88980, 17/88981, 17/88982

JUDGMENT

Sentencing

  1. The Defendant Mr David Baynie has pleaded guilty to three offences under s 125 of the Environmental Planning and Assessment Act 1979 (EPA Act). The offences relate to work which was carried out on Mr Baynie’s former property at Bangalla Street Warrawee (the Premises). The Premises are listed as a heritage item in Sch 7 of the Ku-ring-gai Planning Scheme Ordinance (KPSO) and Sch 5 of the Ku-ring-gai Local Environmental Plan 2015 (KLEP). Mr Baynie represented himself.
  2. Under the first offence, between 29 September 2014 and 26 March 2015 Mr Baynie carried out and instructed others to carry out works including demolition at the Premises without development consent which was required under the KPSO in breach of s 76A of the EPA Act.
  3. Under the second offence, between 23 October 2015 and 23 February 2016 Mr Baynie carried out and instructed others to carry out works including demolition at the Premises without development consent which was required under the KLEP in breach of s 76A of the EPA Act.
  4. The Council issued Mr Baynie with two orders under s 121B of the EPA Act on 22 April 2016 requiring demolition of certain development and reinstatement of the Premises. The third offence is that Mr Baynie failed to comply with the orders within the time required.
  5. The offences are strict liability so that no element of the offences has a mental component. The pleas of guilty mean that the essential elements of the offences are admitted by Mr Baynie, R v Olbrich (1999) 199 CLR 270; [1999] HCA 54 at 275.

Summons number 17/88980 (first offence)

  1. The Summons filed by the Prosecutor Ku-ring-gai Council (the Council) on 23 March 2017 in relation to the first offence contained the following particulars:
Land: The development was carried out on The Premises on the subject land.
Development: The Development comprised demolition works (as defined in KPSO in relation to a heritage item) and works of altering the exterior and structural changes to the interior of the Premises (“'The Works”) on the subject land, namely:
Internal Works- Ground Floor Level
a) Entry foyer: Architraves, picture rails stripped off and removed.
b) Formal sitting room: Original lath, internal lining and plaster ceiling damaged. New timber battens installed for a coffered ceiling. Cornice concealed, door (including fanlight} removed. New stud frame in place to fill in existing opening. Skirting, picture rails and fireplace (including mantle and hearth) removed.
c) Sun Room 1 (Eastern Facade): Installation of new particleboard flooring. Demolition of wall between dining and sunroom. Door to formal sitting room removed and infilled with stud wall. Arched opening to north wall of sunroom infilled with stud wall. New battens installed for a coffered ceiling. Window on common wall between dining and veranda removed and damage to render on walls
d) Veranda (Northern Facade): Damage to floor boards and masonry infill and windows between columns removed.
e) Dining Room: Common wall between the sunroom on the east and dining demolished. Original lath, plaster ceiling and internal plaster damaged. New timber battens installed for a coffered ceiling. Cavity sliding door between living and dining room removed. French doors and windows removed. Wall widened and new folding doors installed. North and east windows removed. Architraves, skirting, picture rails, fireplace, mantle, hearth and chimney removed.
f) Living Room: Wall between the living and dining partly demolished. Wall between living and kitchen removed including chimney. Original lath, plaster ceiling and internal plaster damaged. Door to corridor, sliding door between living and dining French doors and windows removed. Wall widened and new folding doors installed. Architraves, skirting, picture rails, fireplace, mantle, hearth and chimney removed.
g) Kitchen: Wall between kitchen and living room demolished including kitchen chimney; damage to original lath and plaster ceiling. New beam installed to support the removed kitchen chimney. New beam installed to support the removed kitchen chimney.
h) Laundry: Plaster, brickwork and tiles damaged. Door to passage, sidelights and architraves to doors removed.
i) Shower (South of Laundry): Door to passage and architraves removed.
j) Storage (South of Laundry): Door to passage and architraves removed.
k) Area between laundry and shower: Double door to exterior and architraves removed.
Internal Works First Floor Level
I) Staircase Foyer: Openings punctured into wall. Door to bathroom removed. Infilled with stud wall. Architraves, skirting and picture rails removed. Cornice damaged.
m) Bedroom 1: All walls to existing robe demolished. New opening created in southern wall. Skirting and picture rails removed.
n) Bedroom 2: New openings in brick wall. Erection of new stud frame at the southern end of the room, and new opening for entry door into room. Removal of existing entry door and fanlight. Skirting and picture rails removed.
o) Ensuite to Bedroom 2: Removal of door to ensuite.
p) Bedroom 3: Damage to plaster and removal of architraves, skirting and picture rails.
q) Bedroom 4: New stud frame in place at the southern end of the room. Opening created in north. New stud frame. Damage to plaster and removal of architraves, skirting, picture rails and door.
r) Bedroom 5: Demolition of part walls enclosing the bathroom. New stud frame. New door to new ensuite bathroom. Architraves and skirting removed.
s) Bedroom 6: Part east wall demolished. Damage to internal plaster and door, architraves, skirting removed.
External Works
t) Front driveway and garden: Circular brick planter added to driveway. Brick garden retaining wall and large brick piers constructed. Entry porch removed.
Heritage status: 3 Bangalla Street, Warrawee is listed in schedule 7 of the KPSO as a heritage item.
Environmental Planning Instrument: The Environment Planning Instrument is the KPSO, an environmental planning instrument under the Act. KPSO provides for the zoning of the subject land and additional development consent requirements in relation to the heritage conservation, in particular:
• Under Clause 61D(2)(a) of KPSO 2014 development consent is required to demolish (as defined in KPSO 2014) or alter the exterior of a heritage item
• Under Clause 61D(2)(b) of KPSO 2014 development consent is required to alter a heritage item that is a building by making structural changes to its interior.
• Schedule 7 of the KPSO 2014 lists the Premises as a heritage item
None of the exceptions specified in Clause 61D(3) of KPSO applied to the subject of this charge being the carrying out of The Works to the interior and exterior of the Premises on the subject land was development only permissible with development consent under KPSO
Date of evidence: For the purposes of section 127(5B) of the Act, the date on which evidence of the offence first came to the attention of the Prosecutor's investigation officer was 24 March 2015

Summons number 17/88981 (second offence)

  1. The Summons filed by the Council on 23 March 2017 in relation to the second offence contained the following particulars:
Land: The development was carried out on The Premises on the subject land.
Development: The Development comprised demolition works (as defined in KLEP in relation to a heritage item) and works of altering the exterior and structural changes to the interior of the Premises (“The Works”) on the subject land including:
a) Removal of existing and installation of new timber floor boards
b) Works to the lining of the walls and ceiling in the rear ground floor kitchen, dining room, lounge room and sunroom
c) Boxed in fire place in the rear of the dining room southern wall.
d) Installation of new kitchen.
Heritage status: 3 Bangalla Street, Warrawee is listed in schedule 5 of the KLEP as a heritage item.
Environmental Planning Instrument: The Environment Planning Instrument is the Ku-ring­gai Local Environmental Plan 2015, an environmental planning instrument under the Act. KLEP provides for the zoning of the subject land and additional development consent requirements in relation to the heritage conservation, in particular:
• Under Clause 5.10(2)(a) of KLEP development consent is required to demolish (as defined in KLEP) or alter the exterior of a heritage item
• Under Clause 5.10(2)(b) of KLEP development consent is required to alter a heritage item that is a building by making structural changes to its interior.
• Schedule 5 of the KLEP lists the Premises as a heritage item
subject to the exceptions listed in Clause 5.10(3) of the KLEP
None of the exceptions specified in Clause 5.10(3) of KLEP applied to the subject of this charge being the carrying out of The Works to the interior of the Premises on the subject land was development only permissible with development consent under KLEP
Date of evidence: For the purposes of section 127(5B) of the Act, the date on which evidence of the offence first came to the attention of the Prosecutor's investigation officer was 4 November 2015 and 23 February 2016.

Summons number 17/88982 (third offence)

  1. The Summons filed by the Council on 23 March 2017 in relation to the third offence contained the following particulars:
(a) A Notice of Intention to Issue and [sic] Order number 2(a) and an Order number 12(b) in the Table of section 121B of the Act was given pursuant to section 121H of the Act by the Prosecutor to the Defendant on 17 February 2016 (Notice of Intention).
(b) The Prosecutor did not receive any representation from, or on behalf of, the Defendant in relation to the Notice of Intention.
(c) The Orders were given to the Defendant in terms of Order number 12(a) [sic] and Order number 12(b) in the Table of section 121B of the Act on 22 April 2016.
(d) The land where the breach took place was 3 Bangalla Street, Warrawee New South Wales comprising Lot 5 in DP 22671.
(e) At the time the order was given, the Defendant was the owner of the subject land.
(f) The Order number 2(a) was breached by the Defendant by not demolishing and removing development that had been undertaken to the internal and external fabric of the Premises, as set out in that Order, within the time required by the Order, namely by 21 June 2016 being 60 days from the dated of the Order.
(g) The Order number 12(b) was breached by the Defendant by not re-instating the Premises internally and externally back to its former condition, prior to demolition and new construction works being carried out, as set out in that Order, within the time required by the Order, namely by 21 June 2016 being 60 days from the dated of the Order.
(h) For the purposes of section 127(5B) of the Act, the date on which evidence of the offence first came to the attention of the Prosecutor's investigation officer was 4 August 2016.

Environmental Planning and Assessment Act 1979

  1. The following sections of the EPA Act are relevant:
Division 1 Carrying out of development—the threefold classification
...
76A Development that needs consent
(1) General If an environmental planning instrument provides that specified development may not be carried out except with development consent, a person must not carry the development out on land to which the provision applies unless:
(a) such a consent has been obtained and is in force, and
(b) the development is carried out in accordance with the consent and the instrument.
(2) For the purposes of subsection (1), development consent may be obtained:
(a) by the making of a determination by a consent authority to grant development consent, or
(b) in the case of complying development, by the issue of a complying development certificate.
(3), (4) (Repealed)
(5) Complying development An environmental planning instrument may provide that development, or a class of development, that can be addressed by specified predetermined development standards is complying development.
(6)–(9) (Repealed)
...
Division 2A Orders
...
121B Orders that may be given by consent authority or by Minister etc
(1) An order may be given to a person by:
(aa) the Minister or the Secretary (but only in connection with a project to which Part 3A applies, in connection with State significant infrastructure or in connection with development for which the Minister or Secretary is or has been the consent authority), or
(a) a council, or
(b) any other person who exercises functions as a consent authority, except in relation to complying development for which a complying development certificate has been issued,
to do or to refrain from doing a thing specified in the following Table if the circumstances specified opposite it in Column 2 of the Table exist and the person comes within the description opposite it in Column 3 of the Table.
Column 1
Column 2
Column 3
To do what?
In what circumstances?
To whom?
...
...
...
...
2
To demolish or remove a building
(a) Building is erected without prior development consent of consent authority in a case where prior development consent is required or is erected without prior development consent of a consent authority and a prior construction certificate in a case where both prior development consent and a prior construction certificate are required
...
Owner of building
...
...
...
...
12
To do such things as are specified in the order to restore premises to the condition in which they were before building was unlawfully erected or before work was unlawfully carried out
(a) Building has been unlawfully erected, and an order No 2 has been given requiring the building to be demolished or removed
(b) Work has been unlawfully carried out
The owner of the premises, any person entitled to act on a development consent or complying development certificate or any person acting otherwise than in compliance with a development consent or complying development certificate
...
...
...
...
19
To cease carrying out specified building work or subdivision work
(a) Building work or subdivision work is being carried out in contravention of this Act
(b) Building work or subdivision work is being carried out that affects the support of adjoining premises
Owner of land or any person apparently engaged in carrying out the building work or subdivision work
...
121H Notice to be given of proposed order
(1) Notice to whom the order is to be given Before giving an order, the person who gives the order must give notice to the person to whom the order is proposed to be given of the intention to give the order, the terms of the proposed order and the period proposed to be specified as the period within which the order is to be complied with.
(2) The notice must also indicate that the person to whom the order is proposed to be given may make representations to the person who gives the order as to why the order should not be given or as to the terms of or period for compliance with the order.
(3) The notice may provide that the representations are to be made to the person who gives the order or a nominated person on a nominated date, being a date that is reasonable in the circumstances of the case. In the case of a council this may be a specified committee of the council on a specified meeting date or to a specified employee of the council on or before a specified date.
...
Division 4 Offences
125 Offences against this Act and the regulations
(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 Secretary, 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.
(2) Where any matter or thing is by or under the regulations directed or forbidden to be done, or where the Minister, the Secretary, a council or any other person is authorised by 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 the regulations.
(3) Nothing in subsection (1) or (2) applies in respect of a direction given under this Act by the Minister to a public authority.
(3A) A person who:
(a) aids, abets, counsels or procures another person to commit, or
(b) conspires to commit,
an offence against this Act or the regulations arising under any other provision is guilty of an offence against this Act or the regulations arising under that provision and is liable, on conviction, to the same penalty applicable to an offence arising under that provision.
(4) It is a sufficient defence to a prosecution for an offence that arises from the failure to comply with an order under Division 2A if the defendant satisfies the court that the defendant was unaware of the fact that the matter in respect of which the offence arose was the subject of an order.
(5) Unless the context otherwise requires, a requirement under this Act or the regulations that must be complied with by a particular time, or within a particular period, continues after the time has expired or the period ended, and so must still be complied with.

Ku-ring-gai Planning Scheme Ordinance

  1. The following provisions of the KPSO are relevant to the first offence:
PART I – Preliminary
...
4 Interpretation
(1) In this Ordinance, unless the context or subject matter otherwise indicates or requires -...
“Demolish”, in relation to a heritage item or an Aboriginal object, or a building, work, relic or tree within a heritage conservation area, means wholly or partly destroy, dismantle or deface the heritage item, Aboriginal object or building, work, relic or tree.
...
PART VII – Special provisions
...
61D Heritage conservation
(1) Objectives
The objectives of this clause are as follows:
(a) to conserve the environmental heritage of Ku-ring-gai,
(b) to conserve the heritage significance of heritage items and heritage conservation areas, including associated fabric, settings and views,
(c) to conserve archaeological sites,
(d) to conserve Aboriginal objects and Aboriginal places of heritage significance.
(2) Requirement for consent
Development consent is required for any of the following:
(a) demolishing or moving any of the following or altering the exterior of any of the following or altering the exterior of any of the following (including, in the case of a building, making changes to its detail, fabric, finish or appearance):
(i) a heritage item,
(ii) an Aboriginal object,
(iii) building, work, relic or tree within a heritage conservation area,
(b) altering a heritage item that is a building by making structural changes to its interior or by making changes to anything inside the item that is specified in Schedule 7 in relation to the item,
...
(3) When consent not required
However, development consent under this clause is not required if:
(a) the applicant has notified the Council of the proposed development and the Council has advised the applicant in writing before any work is carried out that it is satisfied that the proposed development:
(i) is of a minor nature or is for the maintenance of the heritage item, Aboriginal object, Aboriginal place of heritage significance or archaeological site or a building, work, relic, tree or place within the heritage conservation area, and
(ii) would not adversely affect the heritage significance of the heritage item, Aboriginal object, Aboriginal place, archaeological site or heritage conservation area, or
(b) the development is in a cemetery or burial ground and the proposed development:
(i) is the creation of a new grave or monument, or excavation or disturbance of land for the purpose of conserving or repairing monuments or grave markers, and
(ii) would not cause disturbance to human remains, relics, Aboriginal objects in the form of grave goods, or to an Aboriginal place of heritage significance, or
(c) the development is limited to the removal of a tree or other vegetation that the Council is satisfied is a risk to human life or property, or
(d) the development is exempt development.
...
  1. None of the circumstances where development consent is not required in cl 61D(3) of the KPSO are relied on by Mr Baynie.

Ku-ring-gai Local Environmental Plan 2015

  1. The following provisions of the KLEP are relevant to the second offence:
Dictionary
demolish, in relation to a heritage item or an Aboriginal object, or a building, work, relic or tree within a heritage conservation area, means wholly or partly destroy, dismantle or deface the heritage item, Aboriginal object or building, work, relic or tree.
...
Part 5 Miscellaneous provisions
...
5.10 Heritage conservation
(1) Objectives
The objectives of this clause are as follows:
(a) to conserve the environmental heritage of Ku-ring-gai,
(b) to conserve the heritage significance of heritage items and heritage conservation areas, including associated fabric, settings and views,
(c) to conserve archaeological sites,
(d) to conserve Aboriginal objects and Aboriginal places of heritage significance.
(2) Requirement for consent
Development consent is required for any of the following:
(a) demolishing or moving any of the following or altering the exterior of any of the following (including, in the case of a building, making changes to its detail, fabric, finish or appearance):
(i) a heritage item,
(ii) an Aboriginal object,
(iii) a building, work, relic or tree within a heritage conservation area,
(b) altering a heritage item that is a building by making structural changes to its interior or by making changes to anything inside the item that is specified in Schedule 5 in relation to the item,
...
(3) When consent not required
However, development consent under this clause is not required if:
(a) the applicant has notified the consent authority of the proposed development and the consent authority has advised the applicant in writing before any work is carried out that it is satisfied that the proposed development:
(i) is of a minor nature or is for the maintenance of the heritage item, Aboriginal object, Aboriginal place of heritage significance or archaeological site or a building, work, relic, tree or place within the heritage conservation area, and
(ii) would not adversely affect the heritage significance of the heritage item, Aboriginal object, Aboriginal place, archaeological site or heritage conservation area, or
(b) the development is in a cemetery or burial ground and the proposed development:
(i) is the creation of a new grave or monument, or excavation or disturbance of land for the purpose of conserving or repairing monuments or grave markers, and
(ii) would not cause disturbance to human remains, relics, Aboriginal objects in the form of grave goods, or to an Aboriginal place of heritage significance, or
(c) the development is limited to the removal of a tree or other vegetation that the Council is satisfied is a risk to human life or property, or
(d) the development is exempt development.
...
  1. None of the circumstances in cl 5.10(3) of the KLEP are relied on by Mr Baynie.

Evidence

  1. The parties agreed a statement of agreed facts (SOAF) which was tendered at the sentencing hearing and became Exhibit A. The SOAF refers to tabs within two volumes of an agreed bundle of documents (AB-1, AB-2) which became Exhibit B. Exhibit B contained inter alia photographs identifying the unlawful works on the Premises. The following is the full extract of the SOAF excluding annexures:
The Subject Premises
1. The defendant was the registered titleholder of 3 Bangalla Street, Warrawee (being Lot 5 of DP 226719) (Subject Premises) at all material times. Located at Tab 1 of AB-1 is a copy of the transfer of the title of the Subject Premises from Julie Torkington to the defendant on 29 September 2014.
2. Located at Tab 2 of AB-1 is a copy title search undertaken on 25 March 205 pursuant to section 96B(2) of the Real Property Act 1900 (NSW)
3. Located at Tab 3 of AB-1 is a copy of transfer of the Subject Premises from the defendant to Kim Wheatley on 28 July 2016.
4. Located at Tab 4 of AB-1 is a copy of title search undertaken on 17 August 2016 pursuant to section 96B(2) of the Real Property Act 1900 (NSW).
5. The Subject Premises is located within the prosecutor's Local Government Area.
6. The Subject Premises has historically been used for residential purposes.
7. The Subject Premises accommodates a single dwelling house, detached garage, swimming pool, tennis court and landscaping.
Planning Controls
8. The dwelling on the Subject Premises was recognised as a heritage item in the Ku-ring-gai “Heritage Conservation” Local Environmental Plan No 1 (1989) (amendment to the Ku-ring-gai Planning Scheme Ordinance 1971 (as amended) (KPSO) which was gazetted on 6 October 1989 in the New South Wales Government Gazette No. 99 (4 September 1989).
9. The Subject Premises was, at 25 March 2015, zoned 2(c) residential under the KPSO.
10. The Subject Premises is identified as an item of local heritage significance under Schedule 7 of the KPSO.
11. The environmental planning instrument in force as at 2 April 2015 to date was the Ku-ring-gai Council Local Environmental Plan 2015 (KLEP 2015).
12. The Subject Premises, is zoned R2 Low Density Residential under KLEP 2015.
13. The Subject Premises is listed as a Heritage item under Schedule 5 of the KLEP 2015 and it has been since the KLEP 2015 came into force.
14. The Subject Premises are identified as an item of local heritage significance under the KPSO and the KLEP 2015.
15. The Ku-ring-gai Development Control Plan (KDCP) under Part 20F, applies to any development within a heritage item property and also applies to any development that is a Heritage item listed under Schedule 5 of the KLEP 2015.
Heritage significance
Heritage Status - description of the dwelling
16. The dwelling on the Subject Premises is a two storeyed c.1915 Federation Arts and Craft house with terracotta tiled roof with rendered chimneys with terracotta pots. The front facade is asymmetrical, constructed of face brickwork and roughcast rendering and features a central projecting bay with a patterned brick gable end. The ground floor has a centrally located entry porch with a flat roof and supporting columns. Windows include a corner bay window with small casement windows and multi-paned casement and sliding windows. The front entrance consists of two large double multi-panelled timber doors with a large arched multi-paned highlight window. The eastern elevation features an arched entrance to the sunroom and has been enclosed with a glass door and windows. The rear ground floor consists of a terracotta tiled roofed verandah supported on stucco finished brick piers with timber brackets.
17. The first floor level front facade features a central projected section with two small multi-paned leadlight windows with a patterned brickwork gable over. The steeply pitched roof features two small dormer windows and two chimneys.
18. The double garage is located at the front of the property towards the western boundary. It consists of two garage doors and side windows. The terracotta tiled high pitched gable ended roof contains an attic space with small windows in the gable ends.
19. There is a concrete driveway leading to the double garage. There is a large camphor laurel tree, 2 large brushbox trees and a large jacaranda tree in the front garden as well as large shrubs. The front masonry fence is covered in a vine. The front gates are wrought iron.
Heritage Criteria
20. Historical - The site and building are of local historical significance as part of an early subdivision and Federation period of development in the local area constructed in c1909. The house was designed by well-known architect Howard Joseland who worked with Walter Liberty Vernon. In 1890, Vernon became New South Wales Government Architect, as a result of which he handed his private practice over to Joseland. Joseland's clientele was predominantly well-off people who required comfortable homes. Many of them were moving into the new residential areas in Sydney's north, where suburbs like Wahroonga and Warrawee developed and he is credited with designing something like nineteen homes in these areas. Joseland was one of the earliest architects in Australia to reject the Victorian architectural styles that had developed in England and he advocated architectural styles that were suitable for the local climate. Like Walter Liberty Vernon, he favoured the styles of the Federation era (1890-1915) and actually contributed to the development of the Australian version of the Queen Anne style, which ultimately became the most popular residential style in Australia in the first decade of the 20th century.
21. Aesthetic - The building is of local aesthetic significance as a very good intact example of a two storey c. 1909 house designed in the Federation Arts and Crafts style, The building retains its original form, character and detailing including an asymmetrical front facade, two storeyed central projecting bay with patterned brick gabled end, roughcast rendering, ground floor entry porch with a flat roof and supporting columns, windows include a comer bay window with small casement windows and multi-paned casement and sliding windows, large arched multi-paned highlight window and rear verandah.
22. Representative - The building is an excellent representative example of a two storey Federation arts and Crafts style house that was constructed in 1909.
Notice of Intention and Orders issued
23. On 25 March 2015, the prosecutor issued the defendant with an emergency order pursuant to section 121D of the EP&A Act being an Order No. 19(a) (25 March 2015 Emergency Order). Located at Tab 5 of AB-1 is a copy of the 25 March 2015 Emergency Order.
24. On 21 April 2016 [sic], the prosecutor issued the defendant with a Notice of Intention to Serve an Order pursuant to Section 121H of the EP&A Act being an Order No. 12(b) (21 April 2015 NOI). Located at Tab 6 of AB-1 is a copy of the 21 April 2015 NOI.
25. On 14 July 2015, the defendant lodged a building certificate application pursuant to section 149D of the EP&A Act with the prosecutor for replacement of internal beams and lintels, bathroom rectification, erection of front gate columns, door openings, built in robes and air conditioning. The building certificate application has not been determined. Located at Tab 7 of AB-1 is a copy of the building certificate application.
26. On or about 17 July 2015 the prosecutor sent a letter to the defendant in response to the building certificate application as set out in the aforementioned paragraph acknowledging receipt of the application and advising the consideration of the application had been deferred pending the compliance of the 25 March 2015 Emergency Order and 21 April 2015 NOI. Located in Tab 8 of AB-1 is a copy of the prosecutor's letter to the defendant dated 17 July 2015.
27. On 13 August 2015, the prosecutor issued the defendant with an Order pursuant to section 121B of the EP&A Act, being an Order No. 19(a) which required the defendant to cease all demolition works on site at the Subject Premises (13 August 2015 Order) Located at Tab 9 of AB-1 is a copy of the 13 August 2015 Order.
28. On 9 November 2015, the prosecutor issued the defendant with an Order pursuant to section 121B of the EP&A Act, being an Order No. 19(a) to cease all development on site at the Subject Premises until development consent had been granted (9 November 2015 Order). Located at Tab 10 of AB-1 is a copy of the 9 November 2015 Order.
29. On 15 February 2016, the prosecutor issued the defendant with an emergency direction to comply under section 23(6) of the Swimming Pools Act 1992, requiring the owner of the Subject Premises to satisfy the provisions of the Swimming Pools Act 1992 and Swimming Pools Regulations 2008 (15 February 2016 Direction to comply). Located at Tab 11 of AB-1 is a copy of the Direction to Comply dated 15 February 2016.
30. On 17 February 2016, the prosecutor issued the defendant with a Notice of Intention to Issue an Order pursuant to section 121H of the EP&A Act, Order No. 2(a) and 12(b) (17 February 2017 NOI). Located at Tab 12 of AB-1 is a copy of the 17 February 2017 NOI.
31. On 23 February 2016, the prosecutor issued the defendant with an Order pursuant to section 121B of the EP&A Act, being an Order No. 2(a) to demolish and remove development that had been undertaken to the internal and external fabric of the Subject Premises by 21 June 2016 and 12(b) to re-instate the Subject Premises internally and externally back to its former condition, prior to the demolition and new construction works being carried out by 21 June 2016 (23 February 2016). Located at Tab 13 of AB-1 is a copy of the 23 February 2016 Order.
Inspection on 24 March 2015
32. On or about 5 February 2015, Officer Stephen McKay, employed by the prosecutor received an email from the defendant enclosing an application to remove a tree at the Subject Premises (Tree Removal Application). Located at Tab 14 of AB-1 is a copy of the email and the enclosed Tree Removal Application.
33. On 24 March 2015, Officer McKay attended at the Subject Premises to undertake an inspection of the tree the defendant sought to remove as stated in the Tree Removal Application.
34. At the inspection, Officer McKay observed the following:-
(a) The patio overhanging the front door of the dwelling on the Subject Premises had been removed;
(b) The masonry front fence had been partly removed;
(c) Brick pillars were partly constructed at the front entrance adjoining the driveway, the brickwork appeared to be recent;
(d) Partly constructed circular brick fishpond at about the midway point between the front driveway entrance to the Subject Premises and the front door of the dwelling;
(e) Large pile of bricks outside the front of the dwelling and a fireplace resting near the pile of bricks;
(f) Timber doors leaning against the front of the dwelling.
35. Located at Tab 15 of AB-1 are photographs taken by Officer McKay of the Subject Premises during the inspection depicting his observations.
36. Upon return to the offices of the prosecutor following the inspection, Officer McKay undertook a search of the prosecutor's electronic document management systems for results going back to approximately the year 1998. The records showed no development application had been lodged and no recent development consent had been granted for the Subject Premises for demolition or construction works.
37. Officer McKay also undertook a Google search of the Subject Premises and found the following:-
(a) Website link: https//www.ratemyagent.com.au/real-estate-agency/savills-cordeau-marshail-turramurra/property-listings/3-bangalla-street-warrawee-aaftkl
(b) A listing for the Subject Premises which stated it had been sold on about late 2014;
(c) Photos and floor plans of the Subject Premises. Located at Tab 16 of AB-1 are seven photos of the Subject Premises which depict the following:-
(i) Photo 1 - Front of the Subject Premises looking towards to front door, showing the intact front patio overhanging the front door of the dwelling
(ii) Photo 2 - Tennis court looking in a south west direction showing walls and windows intact
(iii) Photo 3 - Rear of the dwelling showing the pool and intact external walls and windows intact
(iv) Photo 4 - Inside of the premises looking out what I believe is the front door as it shows the house opposite the Subject Premises through the open door, showing intact doors and walls
(v) Photo 5 - inside the Subject Premises looking out into the pool, showing intact walls and doors
(vi) Photo 6 - inside the Subject Premises on the ground floor showing intact fireplace, walls and doors
(vii) Photo 7 - inside the Subject Premises on the ground floor showing intact walls and doors
(collectively referred to as the Century 21 Photos)
Located at Tab 17 of AB-1 is the Century 21 Floor Plans.
38. On the same day, Officer Chris Galletti on the instructions of Officer Leona Goldstein, as requested by Officer McKay undertook a search of the prosecutor's electronic document management systems on both the “TRIM” records storing data from 2003 to date and “TechnologyOne” storing data form 1973 to 2003. The results showed no development application had been lodged and no recent development consent had been granted for the Subject Premises for demolition or construction works as observed by Officer McKay during his inspection on 24 March 2015 as outlined in paragraphs 23 and 24 above.
Inspection on 25 March 2015
39. On 25 March 2015, Officer McKay attended at the Subject Premises and observed the following:-
(a) The rear walls of the dwelling, located directly behind the swimming pool had been removed;
(b) The inside of the dwelling looked as if it had been gutted with ceilings, doors and walls removed.
40. As a result of the inspection, Officer McKay formed the view that the condition of the Subject Premises did not look the same as depicted in the Century 21 photos.
41. Later that day, the defendant and Officer McKay had a telephone conversation when the defendant advised of his intention to completely demolish the front masonry wall in the coming weekend. In response, Officer McKay advised the defendant to contact Development Control or Compliance at the prosecutor to obtain consent for the removal of the masonry wall and other building and site works for the Subject Premises being a heritage property.
42. Julia Torkington, the previous owner who sold the Subject Premises to the defendant on, in her affidavit sworn 4 May 2017 confirmed that the Century 21 photos accurately represented the Subject Premises at the time of the sale to the defendant or about 29 September 2014.
Inspection on 26 March 2015
43. On 26 March 2015, from approximately 8:42 am to 9:04 am, Officer Goldstein undertook a site inspection at the Subject Premises with Officer Dominic Brooks, employed by the prosecutor to determine the extent of the unauthorised demolition work and construction work to the heritage item.
44. At the inspection, Officers Goldstein and Brooks made the following observations:-
(a) There was a skip bin at the front of the Subject Premises that was full of building material;
(b) The front porch that was shown in the Century 21 Photos, specifically Photo 1 at Tab 16 of AB-1 had been removed;
(c) Brick piers had been constructed on the front boundary of the Subject Premises and a circular brick structure had been constructed in the centre of the driveway, neither of which was shown on the Century 21 Photos, specifically Photo 1 at Tab 16 of AB-1.
(d) Large openings in the rear walls, leaving the inside of the house exposed to inclement weather.
(e) A lot of the original material shown in the Century 21 photos, specifically Photo 3 - 7 located at Tab 16 of AB-1 were missing or damaged.
(f) No furniture in the house and it appeared to be a building site
(g) Demolition and construction material on the ground floor and first floor
Located at Tab 18 of AB-1 is a copy of the Table which sets out the details of the photos taken by Officer Goldstein at the time of the inspection,
Located at Tab 19 of AB-1 are the inspection plans marked by Officer Goldstein showing the location where Officer Goldstein stood and the directions she was facing when each photo was taken.
Works undertaken from 29 September 2014 to 26 March 2015 [first offence]
45. As of 26 March 2015, the following demolition and construction works were observed to have been undertaken by the defendant:
Internal Works - Ground Floor Level
(a) Entry foyer: Architraves, picture rails stripped off and removed.
(b) Formal sitting room: Original lath, internal lining and plaster ceiling damaged. New timber battens installed for a coffered ceiling. Cornice concealed, door (including fanlight) removed. New stud frame in place to fill in existing opening. Skirting, picture rails and fireplace (including mantle and hearth) removed.
(c) Sun Room 1 (Eastern Facade): Installation of new particleboard flooring. Demolition of wall between dining and sunroom. Door to formal sitting room removed and infilled with stud wall. Arched opening to north wall of sunroom infilled with stud wall. New battens installed for a coffered ceiling. Window on common wail between dining and veranda removed and damage to render on walls.
(d) Veranda (Northern Facade): Damage to floor boards and masonry infill and windows between columns removed.
(e) Dining Room: Common wail between the sunroom on the east and dining demolished. Original lath, plaster ceiling and internal plaster damaged. New timber battens installed for a coffered ceiling. Cavity sliding door between living and dining room removed. French doors and windows removed. Wall widened and new folding doors installed. North and east windows removed. Architraves, skirting, picture rails, fireplace, mantle, hearth and chimney removed.
(f) Living Room: Wall between the living and dining partly demolished. Wall between living and kitchen removed including chimney. Original lath, plaster ceiling and internal plaster damaged. Door to corridor, sliding door between living and dining French doors and windows removed. Wall widened and new folding doors installed. Architraves, skirting, picture rails, fireplace, mantle, hearth and chimney removed.
(g) Kitchen: Wall between kitchen and living room demolished including kitchen chimney; damage to original lath and plaster ceiling. New beam installed to support the removed kitchen chimney. New beam installed to support the removed kitchen chimney.
(h) Laundry: Plaster, brickwork and tiles damaged. Door to passage, sidelights and architraves to doors removed.
(i) Shower (South of Laundry): Door to passage and architraves removed.
(j) Storage (South of Laundry): Door to passage and architraves removed.
(k) Area between laundry and shower: Double door to exterior and architraves removed.
Internal Works - First Floor Level
(a) Staircase Foyer: Openings punctured into wall. Door to bathroom removed. Infilled with stud wall. Architraves, skirting and picture rails removed. Cornice damaged.
(b) Bedroom 1: All walls to existing robe demolished. New opening created in southern wall. Skirting and picture rails removed.
(c) Bedroom 2: New openings in brick wall. Erection of new stud frame at the southern end of the room, and new opening for entry door into room. Removal of existing entry door and fanlight. Skirting and picture rails removed.
(d) Ensuite to Bedroom 2: Removal of door to ensuite.
(e) Bedroom 3: Damage to plaster and removal of architraves, skirting and picture rails.
(f) Bedroom 4: New stud frame in place at the southern end of the room, Opening created in north, New stud frame. Damage to plaster and removal of architraves, skirting, picture rails and door.
(g) Bedroom 5: Demolition of part walls enclosing the bathroom. New stud frame. New door to new ensuite bathroom. Architraves and skirting removed.
(h) Bedroom 6: Part east wall demolished. Damage to internal plaster and door, architraves, skirting removed.
External Works
(a) Front driveway and garden: Circular brick planter added to driveway. Brick garden retaining wall and large brick piers constructed. Entry porch removed.
Remedial Works Report June 2015 and Statement of Heritage Impact October 2015
46. On or before 3 July 2015, the prosecutor received a Remedial Works Report prepared by Rappaport Pty Ltd (Heritage 21) dated 29 June 2015 (Remedial Works Report). Located at Tab 20 of AB-1 is a copy of the Remedial Works Report. A copy of this report was also provided on 6 July 2016 by the defendant's solicitors McKees Legal Solutions who acted for him at the time, in response to a Notice of Furnish Records issued by the prosecutor on the defendant dated 5 May 2015.
47. On or about 2 October 2015, the defendant lodged a development application with the prosecutor for alterations and additions to the existing dwelling and a new cabana and front fence being DA 0439/15. Located at Tab 21 of AB-1 is a copy of the DA 0439/15. Located at Tab 22 of AB-1 is a copy of all documents enclosed with DA 0439/15. This DA 0439/15 was not determined and was formally withdrawn by the defendant on or about 7 September 2016. Located at Tab 23 of AB-1 is a copy of the email the defendant sent to the prosecutor's solicitor, Keli Law of Messrs Matthews Folbigg on 7 September 2016 formally withdrawing the DA 0439/15.
48. DA 0439/15 included Statement of Heritage Impact dated 1 October 2015 prepared by Rappaport Pty Ltd (also known as Heritage 21) (Heritage Impact Statement). Located at Tab 24 of AB-1 is a copy of the Heritage Impact Statement.
49. The 87 photos taken on 13 May 2015 in the Remedial Works Report depicted works undertaken by the defendant from on or about 28 September 2014 to 13 May 2015 and these photos are the same as those used in the Heritage Impact Statement.
Inspection on 28 July 2015
50. On 28 July 2015, at approximately 3:00 pm, Officer Dale Martinuzzo, employed by the prosecutor attended the Subject Premises in response to a complaint the prosecutor received from Officer Goldstein and took some photographs. Located at Tab 25 of AB-1 are six photographs taken by Officer Martinuzzo during the inspection.
51. The photographs depict a white Toyota tradesman's vehicle with the words “Advantage Plumbing and Guttering” and a white Mitsubishi tradesman's vehicle parked outside the Subject Premises.
52. Officer Martinuzzo with the consent of the defendant then entered the dwelling of the Subject Premises accompanied by the defendant and observed the following on the ground floor:-
(a) The interior was stripped out
(b) Walls removed
(c) Architraves, skirting and door jams removed
(d) Door openings closed over, new doors installed
(e) Fire places demolished
(f) There were holes in the ceiling and new wiring
(g) Doors were unpainted and the wiring punched through holes in the ceiling was not connected
53. Officer Martinuzzo then had a conversation with the defendant when the defendant said after the issue of 25 March 2015 Emergency Order, he had the bathrooms tiled because he was concerned with the water proofing and the toilets delivered. He also said that he wanted to be able to get to a liveable standard so he could move in.
54. Officer Martinuzzo then observed the following on the first floor area:-
(a) The bathrooms are tiled;
(b) Wiring hanging down outside the bathroom or bedroom number 3 at the southwest top corner of the dwelling
Inspection on 29 July 2015
55. On 29 July 2015, at approximately 1:05 pm, Officer Martinuzzo attended at the Subject Premises for the purposes of a routine inspection. Officer Martinuzzo observed the following:-
(a) The Subject Premises was surrounded by metal mesh perimeter fencing, with black plastic covering the front gates.
(b) The entrance gates to the metal mesh perimeter fence had a metal chain joining them, with a metal padlock locking the chain and preventing it from coming undone;
(c) The pad lock was locked.
56. Officer Martinuzzo took six photographs during the inspection whilst standing outside the metal mesh perimeter fencing. Located under Tab 26 of AB-1 are photographs numbered 106-111 taken by Officer Martinuzzo depicting the following:-
(a) Photo 106 - showing metal mesh perimeter fencing from the front entrance to the Subject Premises;
(b) Photo 107 - showing close up of the locked metal mesh perimeter fencing;
(c) Photo 108 to 111 - showing frontal view of Subject Premises taken holding the camera above the metal mesh perimeter fence.
Letter of demand and s 121B Order dated 13 August 2015
57. On or about 6 August 2015, the Prosecutor's solicitor sent a letter of demand to the defendant demanding the defendant [sic] Located at Tab 27 of AB-1 is a copy of the letter of demand from Matthews Folbigg to the defendant dated 6 August 2015.
58. On or about 13 August 2015, the prosecutor issued an Order pursuant to section 121B of the EP&A Act, Order No. 19(a) addressed to the defendant (13 August 2015 Order). Located under Tab 9 of AB-1 is a copy of the 13 August 2015 Order.
Inspection on 18 August 2015
59. On 18 August 2015 at approximately 1:50 pm, Officer Martinuzzo undertook a routine inspection of the Subject Premises and made the following observations:-
(a) There as metal mesh perimeter fencing erected around the Subject Premises where there were openings in the boundary fencing. The front gates were locked with a padlock and with black mesh like plastic attached.
(b) The dwelling and detached garage structure looked to be weather protected, as the doors and windows had the appearance of being closed.
(c) No building material or original artefacts (mantel pieces, skirting boards, architraves, doors etc) was observed being left outside of the dwelling exposed to the weather.
Inspection on 22 October 2015
60. On 22 October 2015, at approximately 10:30 am, Officers Martinuzzo and O'Shannassy attended at the Subject Premises and undertook an inspection. The defendant was cautioned prior to the inspection. At the conclusion of the inspection, Officers Martinuzzo and O'Shannassy formed the view that no further construction work or demolition work had been carried out since the inspections on 28 and 29 July 2015.
Inspection on 4 November 2015
61. On or about 4 November 2015, at approximately 3:08 pm, in response to an anonymous complaint received by phone, Officer Martinuzzo attended at the Subject Premises and undertook an inspection.
62. At the inspection, Officer Martinuzzo observed the following:-
(a) There was no perimeter fencing at the Subject Premises.
(b) New floor boards stacked on the floor near the dining room area. Located at Tab 28 of AB-1 is a copy of the photo numbered 114 taken by Officer Martinuzzo at the inspection.
Inspection on 6 November 2015
63. On or about 6 November 2015, at approximately 10:33 am, Officer Martinuzzo drove by the Subject Premises and observed a blue and yellow Toyota van at the Subject Premises. Officer Martinuzzo took six photographs which are located under Tab 29 of AB-1 depicting a blue and yellow Toyota van making a delivery to the Subject Premises.
64. Officer Martinuzzo then cautioned the defendant and had a conversation with him. During the conversation, the defendant stated that he was enhancing the place and doing maintenance work.
9 November 2015 Order
65. As a consequence of the inspections on 4 and 6 November 2015 and after giving consideration of the impact of issuing an Order on a heritage item, Officer Martinuzzo prepared and issued an Order pursuant to s 121B of the EP&A Act Order No. 19(a) to the defendant (9 November 2015 Order) which is located at Tab 10 of AB-1.
Minor Works Application - November 2015
66. On or about 6 November 2015, Officer Goldstein received an email from the defendant which enclosed a letter form Rappaport Pty Ltd (Heritage 21) dated November 2015 (Rappaport Letter dated November 2015) seeking consent of the prosecutor to undertake works being the sanding of floors at the Subject Premises on the first and ground floors. Located at Tab 30 of AB-1 is a copy of the email from the defendant dated 6 November 2015 and Rappaport Letter dated November 2015.
67. On or before 17 November 2015, the prosecutor's solicitor Matthews Folbigg Lawyers send a letter to Heritage 21 & Rappaport Heritage Consultants stating that the defendant had carried out work at the Subject Premises unlawfully without prior development consent from the Council and Council did not regard the floor sanding to be minor when it had been undertaken on a floor that had been constructed unlawfully and therefore did not provide such consent. Located at Tab 31 of AB-1 is a copy of the letter dated 17 November 2015.
17 February 2016 NOI
68. On or about 17 February 2016, after giving consideration of the impact of issuing of an Order on a heritage item, Officer Martinuzzo prepared and issued a Notice of Intention to Issue an Order pursuant to section 121H of the EP&A Act, Order No. 2(a) and 12(b) to the defendant (17 February 2016 NOI) which is located at Tab 12 of AB-1.
59 The Prosecutor did not receive any representation from, or on behalf of, the Defendant in relation to the 17 February 2016 NOI.
Inspection on 23 February 2016
70. On or about 23 February 2016, Officer Martinuzzo undertook an inspection at the Subject Premises. Officer Martinuzzo did not enter the dwelling but made some observations from the outside and by looking inside the dwelling through the windows. Officer Martinuzzo saw further new works had been carried out to the Subject Premises since the last inspection on or about 6 November 2015. Officer Martinuzzo observed the following:-
(a) Works done to the lining of the walls and ceiling in the rear ground floor kitchen, dining room, lounge room and sunroom;
(b) The kitchen was in the process of being installed;
(c) Boxed in fire place in rear of the dining room southern wall.
71. During this inspection, Officer Martinuzzo took twenty-one (21) photographs. Located at Tab 32 of AB-1 are photographs numbered 127-149 taken by Officer Martinuzzo depicting his observations.
Works undertaken by the defendant from 26 March 2015 to 23 February 2016 [second offence]
72. From 26 March 2015 to 23 February 2016, the following demolition and construction works were observed to have been undertaken by the defendant:
(a) Removal of existing and installation of new timber floor boards
(b) Works to the lining of the walls and ceiling in the rear ground floor kitchen, dining room, lounge room and sunroom
(c) Boxed in fire place in the rear of the dining room southern wall.
(d) Installation of new kitchen.
23 February 2016 Order [third offence]
73. As a consequence of Officer Martinuzzo's observation on 23 February 2017 [sic] and after giving consideration of the impact of issuing an Order on a heritage item, Officer Martinuzzo prepared and issued an Order pursuant to section 121B of the EP&A Act Order No. 2(a) and 12(b) to the defendant (23 February 2016 Order) which is located at Tab 13 of AB-1
Breach of 23 February 2016 Order
74. The Defendant breached the Order number 2(a) by not demolishing and removing development that had been undertaken to the internal and external fabric of the Subject Premises, as set out in that Order, within the time required by the Order; namely by 21 June 2016 being 60 days from the date of the Order.
75. The Defendant breached the Order number 12(b) by not re-instating the Subject Premises internally and externally back to its former condition, prior to demolition and new construction works being carried out, as set out in that Order, within the time required by the Order, namely by 21 June 2016 being 60 days from the dated of the Order.
76. For the purposes of section 127(5B) of the Act, the date on which evidence of the offence first came to the attention of the Prosecutor's investigation officer was 4 August 2016.
Sale of the Subject Premises
77. On or about 28 July 2016, the defendant sold the Subject Premises to Kim Wheatley.
Inspection on 4 August 2016
78. On 4 August 2016, Officer Amy Allen, Executive Assessment Officer, Officer Richard Kinninmont, Team Leader Development Assessment and Officer Goldstein, employed by the prosecutor attended at the Subject Premises.
79. At the inspection, Officer Goldstein took 33 photos (numbered 65 to 99) of the Subject Premises. Located at Tab 33 of AB-1 is a copy of the table which sets out the photos and her observations (4 August 2016 Inspection Table).
80. Kim Wheatley, in her affidavit sworn 4 May 2017, confirmed the works as depicted in photos 65 to 99 taken on 4 August 2016 accurately represent the layout and condition of the Subject Premises as per her pre-settlement inspection and at settlement on 28 July 2016. She also confirmed that she did not undertake any work on the Subject Premises between the period from 28 July 2016 to 4 August 2016.
81. The works conducted on the Subject Premises are not works that are exempt development under the following applicable environmental planning instruments and are unlawful:
(a) The KPSO
(b) The KLEP 2015
(c) The Codes SEPP 2008
Heritage Assessment of the Unlawful Works from Inspections on 26 March 2015 and 4 August 2016
82. The unlawful works are summarised in the Summary of Unlawful Works located at Tab 34 of AB-1:-
(a) 26 March 2015 Inspection Table located at Tabs 18 and 19 of AB-1;
(b) Photos of the Heritage Impact Statement on 13 May 2015 located at Tab 24 of AB-1;
(c) 4 August 2016 Inspection Table located at Tab 33 of AB-1.
83. The Summary of Unlawful Works sets out a description of the unlawful works so far as it relates to each area of the Subject Premises and is identified by breach number (Particular). Each Particular is on a single page. Behind each Particular is a series of photos evidencing the following:-
(a) The Subject Premises prior to the unlawful works being carried out, as identified on the relevant Century 21 Photo and/or photos produced by Savills Cordeau Marshall in response to a Notice to Furnish Records dated 5 May 2015;
(b) The Subject Premises as at 26 March 2015;
(c) The Subject Premises as at 13 May 2015;
(d) The Subject Premises as at 4 August 2016.
84. The Unlawful Works comprised of demolition and alterations of the exterior and structural changes to the interior of the heritage listed house without prior development consent. Descriptions of the Unlawful Works as particularised in the Summons of the proceedings and the assessments of their respective heritage impacts are as follows:
Internal Works
a) Entry Foyer; Architraves, picture rails stripped off and removed.
These items are of high heritage significance because they were part of the original fabric and have been removed and destroyed. Although these items may be reinstated in their correct position with a similar type of material and profile which may partly mitigate the harm caused by the commission of the offence, the harm caused is of high seriousness because the replaced items will not totally compensate for the reduction in heritage significance caused by the loss of original fabric.
b) Formal sitting Room; Original lath, internal lining and plaster ceiling damaged New timber battens installed for a coffered ceiling. Cornice concealed, door (including fanlight) removed. New stud frame in place to fill in existing opening. Skirting, picture rails and fireplace (including mantle and hearth) removed.
The original lath plaster ceiling lining and cornice has high heritage significance because it is part of the original fabric and has been damaged. New timber battens have been installed to form a coffered ceiling and the new beams are fixed directly onto the original plaster ceiling. Holes have been put into the plaster ceiling for the installation of downlights. The harm caused is of high seriousness because the removal of the beams will cause major damage and the original ceiling will be lost.
The west wall has been widened and the door removed with damage to the internal plaster lining which has high heritage significance as part of the original fabric. Although these items may be reinstated in their correct position with a similar type of material and profile which may partly mitigate the harm caused by the commission of the offence, the harm caused is of high seriousness because it will not totally compensate for the reduction in heritage significance caused by the loss of original fabric.
The door with fanlight has high heritage significance because it is part of the original fabric and has been removed and replaced with new stud framework. It originally was part of an outdoor verandah that has since been enclosed. Although these items may be reinstated in their correct position with a similar type of material and profile which may partly mitigate the harm caused by the commission of the offence, the harm caused is of high seriousness because it will not totally compensate for the reduction in heritage significance caused by the loss of original fabric.
The skirting and picture rails are of high heritage significance because they were part of the original fabric and have been removed and destroyed. Although these items may be reinstated in their correct position with a similar type of material and profile which may partly mitigate the harm caused by the commission of the offence, the harm caused is of high seriousness because the replaced items will not totally compensate for the reduction in heritage significance caused by the loss of original fabric.
The fireplace (including mantle and hearth) has been removed. Available evidence suggests that the fabric of the fireplace is not original and it has low heritage significance. The harm caused is of low seriousness.
c) Sunroom 1 (Eastern Facade); Installation of new particleboard flooring. Demolition of wall between dining and sunroom. Door to formal sitting room removed and infilled with stud wall. Arched opening to north wall of sunroom infilled with stud wall. New battens installed for a coffered ceiling. Window on common wall between dining and verandah removed and damage to render on walls.
The existing floorboards are of moderate heritage significance because they were a sympathetic interpretation of the original and they have been removed and replaced with new particleboard flooring. The harm caused is of moderate seriousness because the replaced items will not totally compensate for the reduction in heritage significance caused by the loss of the replaced sympathetic fabric.
The walls between the dining and sunroom and dining and north verandah have high heritage significance because they were part of the original fabric and have been demolished. These walls defined the spaces between the original outside verandah and the dining room. Although they may be reinstated in their correct position with a similar type of material and profile which may partly mitigate the harm caused by the commission of the offence, the harm caused is of high seriousness because the replaced items will not totally compensate for the reduction in heritage significance caused by the loss of original fabric.
The door to the formal sitting room has high heritage significance because it was part of the original fabric and has been removed and infilled with a stud wall. This door originally led to the outside verandah. Although the door may be reinstated in its correct position with a similar type of material and profile which may partly mitigate the harm caused by the commission of the offence, the harm caused is of high seriousness because the replaced door will not totally compensate for the reduction in heritage significance caused by the loss of original fabric.
The arched opening to the north wall of the sunroom has high heritage significance because it was part of the original fabric and has been infilled with a stud wall. The opening was originally part of an outside verandah. The harm caused is of moderate seriousness because the opening may be reinstated to mitigate the harm caused by the commission of the offence.
d) Verandah (Northern Facade); Damage to floor boards and masonry infill and windows between columns removed.
The verandah floor boards have moderate heritage significance because they were a sympathetic interpretation of the original and they have been damaged. The harm caused is of moderate seriousness because any items used to replace will not totally compensate for the reduction in heritage significance caused by the loss of the replaced sympathetic fabric.
The verandah masonry infill has high heritage significance because it was part of the original fabric and has been removed. Although the masonry infills may be reinstated in their correct position with a similar type of material which may partly mitigate the harm caused by the commission of the offence, the harm caused is of high seriousness because the replaced infills will not totally compensate for the reduction in heritage significance caused by the loss of original fabric.
The windows between the columns have been removed and they have no heritage significance as they were later additions. There is no harm caused.
e) Dining Room: Common wall between the sunroom on the east and dining demolished. Original lath, plaster ceiling and internal plaster damaged. New timber battens installed for a coffered ceiling. Cavity sliding door between living and dining room removed. Wall widened and new folding doors installed. North and east windows removed. Architraves, skirting, picture rails, fireplace, mantle, hearth and chimney removed.
The common wall between the sunroom on the east and the dining room has high heritage significance because it was part of the original fabric and has been demolished. This wall defined the space between the original outside verandah (now sunroom) and the dining room. Although the wall may be reinstated in its correct position with a similar type of material which may partly mitigate the harm caused by the commission of the offence, the harm caused is of high seriousness because the replaced wall will not totally compensate for the reduction in heritage significance caused by the loss of original fabric.
The original lath plaster ceiling lining and cornice has high heritage significance because it is part of the original fabric and has been damaged. New timber battens have been installed to form a coffered ceiling and the new beams are fixed directly onto the original plaster ceiling. Holes have been put into the plaster ceiling for the installation of downlights. The harm caused is of high seriousness because the removal of the beams will cause major damage and the original ceiling will be lost.
The wall between the living and the dining room has been widened and the cavity sliding doors have been removed. They are of high heritage significance because these items define the separation between the rooms. Although these items may be reinstated in their correct position with a similar type of material and profile which may partly mitigate the harm caused by the commission of the offence, the harm caused is of high seriousness because the replaced items will not totally compensate for the reduction in heritage significance caused by the loss of original fabric.
The existing French doors have been removed and part of the external wall has been widened and new bi-folding doors installed. They have moderate heritage significance because it was a sympathetic interpretation of the original. Although the French doors and walls may be reinstated in their correct position with a similar type of material and profile which may partly mitigate the harm caused by the commission of the offence, the harm caused is of moderate seriousness because the replaced items will not totally compensate for the reduction in heritage significance caused by the loss of the replaced sympathetic fabric.
The north and east corner windows have high significance because they were part of the original fabric and have been removed. The windows formed an important part of the room. Although these items may be reinstated in their correct position with a similar type of material and profile which may partly mitigate the harm caused by the commission of the offence, the harm caused is of high seriousness because the replaced items will not totally compensate for the reduction in heritage significance caused by the loss of original fabric.
The architraves, skirting and picture rails are of high heritage significance because they were part of the original fabric and have been removed and destroyed. Although these items may be reinstated in their correct position with a similar type of material and profile which may partly mitigate the harm caused by the commission of the offence, the harm caused is of high seriousness because the replaced items will not totally compensate for the reduction in heritage significance caused by the loss of original fabric.
f) Living Room: wall between the living and dining partly demolished. Wall between living and kitchen removed including chimney. Original lath, plaster ceiling and internal piaster damaged. Door to corridor, sliding door between living and dining French doors and windows removed. Wall widened and new folding doors installed. Architraves, skirting, picture rails, fireplace, mantle, hearth and chimney removed.
The wall between the living and the dining room has been widened and the cavity sliding doors have been removed. They are of high heritage significance because they were part of the original fabric that defined the spaces between the rooms. Although these items may be reinstated in their correct position with a similar type of material and profile which may partly mitigate the harm caused by the commission of the offence, the harm caused is of high seriousness because the replaced items will not totally compensate for the reduction in heritage significance caused by the loss of original fabric.
The original lath plaster ceiling lining and cornice has high heritage significance because of the loss of original fabric and has been damaged. New timber battens have been installed to form a coffered ceiling and the new beams are fixed directly onto the original plaster ceiling. Holes have been put into the plaster ceiling for the installation of downlights. The harm caused is of high seriousness because the removal of the beams will cause major damage and the original ceiling will be lost.
The existing French doors have been removed and part of the external wall has been widened and new bi-folding doors installed. The items have moderate heritage significance because they were a sympathetic interpretation of the original. Although the French doors and walls may be reinstated in their correct position with a similar type of material and profile which may partly mitigate the harm caused by the commission of the offence, the harm caused is of moderate seriousness because the replaced items will not totally compensate for the reduction in heritage significance caused by the loss of the replaced sympathetic fabric.
The architraves, skirting and picture rails are of high heritage significance because they were part of the original fabric and have been removed and destroyed. Although these items may be reinstated in their correct position with a similar type of material and profile which may partly mitigate the harm caused by the commission of the offence, the harm caused is of high seriousness because the replaced items will not totally compensate for the reduction in heritage significance caused by the loss of original fabric.
g) Kitchen: Wall between kitchen and living room demolished including kitchen chimney; damage to original lath and plaster ceiling. New beam installed to support the removed kitchen chimney.
The wall between the kitchen and living room including the kitchen chimney has high heritage significance because they were part of the original fabric and has been demolished. These items define the separation between the rooms. Although they may be reinstated in their correct position with a similar type of material and profile which may partly mitigate the harm caused by the commission of the offence, the harm caused is of high seriousness because the replaced items will not totally compensate for the reduction in heritage significance caused by the loss of original fabric.
h) Laundry: Plaster, brickwork and tiles damaged. Door to passage, sidelights and architraves to doors removed.
The plaster and brickwork is of high heritage significance because these materials were part of the original fabric of the room and have been removed and destroyed. Although these materials may be reinstated in their correct position with a similar type which may partly mitigate the harm caused by the commission of the offence, the harm caused is of high seriousness because the replaced materials will not totally compensate for the reduction in heritage significance caused by the loss of original fabric.
The door plus architraves to the passage is of high heritage significance because it was part of the original fabric and has been removed and destroyed. Although these items may be reinstated in their correct position with a similar type of material and profile which may mitigate the harm caused by the commission of the offence, the harm caused is of high seriousness because the replaced items will not totally compensate for the reduction in heritage significance caused by the toss of original fabric.
i) Shower (South of Laundry): door to passage and architraves removed.
The door to the passage with architraves are of high heritage significance because it was part of the original fabric and have been removed and destroyed. Although these items may be reinstated in their correct position with a similar type of material and profile which may mitigate the harm caused by the commission of the offence, the harm caused is of high seriousness because the replaced items will not totally compensate for the reduction in heritage significance caused by the loss of original fabric.
j) Storage (South of Laundry): door to passage and architraves removed.
The door to the passage with architraves is of high heritage significance because it was part of the original fabric and has been removed and destroyed. Although these items may be reinstated in their correct position with a similar type of material and profile which may mitigate the harm caused by the commission of the offence, the harm caused is of high seriousness because the replaced items will not totally compensate for the reduction in heritage significance caused by the loss of original fabric.
k) Area between laundry and shower: Exterior double door plus architraves removed.
The exterior double doors plus architraves have low heritage significance and have been removed. These doors were not original and have low significance. This item may be reinstated in its correct position with a similar type of material and profile which may mitigate the harm caused by the commission of the offence. The harm caused is of low seriousness because the original doors were replaced.
Internal works - First Floor Level
I) Staircase Foyer: Openings punctured into wall. Door to bathroom removed. Infilled stud wall. Architraves, skirting and picture rails removed. Cornice damaged.
The door to the bathroom as well as architraves, skirtings and picture rails and cornices has high heritage significance because it was part of the original fabric and has been removed. Although these elements may be reinstated in their correct position with a similar type of material and profile which may mitigate the harm caused by the commission of the offence, the harm caused is of high seriousness because the replaced items will not totally compensate for the reduction in heritage significance caused by the loss of original fabric.
m) Bedroom 1: all walls to existing robe demolished. New opening created in southern wall. Skirting and picture rails removed.
Walls to the existing robe are of no heritage significance because they are not original fabric and have been demolished. There is no harm.
The skirting and picture rails and walls are of high heritage significance because they were part of the original fabric and have been removed. Although these elements may be reinstated in their correct position with a similar type of material and profile which may mitigate the harm caused by the commission of the offence, the harm caused is of high seriousness because the replaced items will not totally compensate for the reduction in heritage significance caused by the loss of original fabric.
n) Bedroom 2: New openings in brick wall. Erection of new stud frame at the southern end of the room, and new opening for entry door into room. Removal of existing entry door and fanlight. Skirting and picture rails removed.
The brick walls, entry door and fanlight, skirting and picture rails are of high heritage significance because they were part of the original fabric and have been removed. Although these items may be reinstated in their correct position with a similar type of material and profile which may mitigate the harm caused by the commission of the offence, the harm caused is of high seriousness because the replaced items will not totally compensate for the reduction in heritage significance caused by the loss of original fabric.
The erection of a new stud frame at the southern end of the room will cause low harm as it can be removed.
A new opening in the existing wall for the entry door will cause harm of high seriousness because the wall has high significance as a part of the original fabric has been removed.
o) Ensuite to Bedroom 2: Removal of ensuite door.
The removal of the ensuite door has no heritage significance. The ensuite was an addition.
p) Bedroom 3: damage to plaster and removal of architraves, skirting and picture rails.
The damage to plaster and removal of architraves, skirting and picture rails have high heritage significance because they were part of the original fabric and have been removed. Although these items may be reinstated in their correct position with a similar type of material and profile which may mitigate the harm caused by the commission of the offence, the harm caused is of high seriousness because the replaced items will not totally compensate for the reduction in heritage significance caused by the loss of original fabric.
q) Bedroom 4: New stud frame in place at the southern end of the room. Opening created in the north. New stud frame. Damage to plaster and removal of architraves, skirting and picture rails.
The erection of a new stud frame at the southern end of the room will cause low harm as it can be removed.
A new opening in the existing wall for the entry door will cause harm of high seriousness because the wall has high significance as a part of the original fabric has been removed.
The damage to plaster and removal of architraves, skirting and picture rails have high heritage significance because they were part of the original fabric. Although these modifications may be reinstated in their correct position with a similar type of material which may partly mitigate the harm caused by the commission of the offence, the harm caused is of high seriousness because the replaced items will not totally compensate for the reduction in heritage significance caused by the loss of original fabric.
r) Bedroom 5: Demolition of part walls enclosing the bathroom. New stud frame. New door to ensuite bathroom. Architraves and skirting removed
The demolition of part walls enclosing the bathroom, architraves and skirting have high heritage significance because they were part of the original fabric. Although these modifications may be reinstated in their correct position with a similar type of material which may partly mitigate the harm caused by the commission of the offence, the harm caused is of high seriousness because the replaced items will not totally compensate for the reduction in heritage significance caused by the loss of original fabric.
The erection of a new stud frame will cause low harm as it can be removed.
s) Bedroom 6: Part east wall demolished. Damage to internal plaster and door, architraves, skirting removed.
The demolition of part of the east wall damage to internal plaster and door, architraves, skirting have high heritage significance because they were part of the original fabric. Although these modifications may be reinstated in their correct position with a similar type of material which may partly mitigate the harm caused by the commission of the offence, the harm caused is of high seriousness because the replaced items will not totally compensate for the reduction in heritage significance caused by the loss of original fabric.
External Works
t) Front driveway and garden: Circular brick planter added to driveway brick garden retaining wall and large brick piers constructed. Entry porch removed.
The existing entry porch has moderate heritage significance because it was replaced with a sympathetic interpretation of the original and has been removed. Although this modification may be reinstated in its correct position with similar type of materials which may partly mitigate the harm caused by the commission of the offence, the harm caused is of moderate seriousness because the replaced item will not totally compensate for the reduction in heritage significance caused by the loss of the replaced sympathetic fabric.
The addition of a circular brick planter to the driveway, a brick garden retaining wall in the front setback and new large brick piers on the street boundary are not sympathetic with the existing front landscape area. These elements may be removed to mitigate the harm caused by the commission of the offence, and will have low seriousness.
85. The removal of the original components, as particularised in the Summons of the proceedings, have a high heritage significance and has had a high adverse impact on the heritage significance of the Subject Premises.

Affidavit of Mr Baynie

  1. Mr Baynie swore an affidavit dated 6 September 2017. In his affidavit Mr Baynie expressed sincere remorse and regret for his actions.
  2. Mr Baynie deposed that he engaged Rappoport Pty Ltd (Rappoport), a specialist heritage consulting firm, to advise him in relation to remediation works and heritage compliance issues. Rappoport issued a report dated 29 June 2015. In his affidavit Mr Baynie stated that he relies on this report as grounds for his defence.
  3. Mr Baynie deposed that the canopy at the front of the Premises was removed due to water leaks and corrosion caused by worn out flashing and guttering. A period matching feature was to be installed before Mr Baynie was issued with an order to stop work. Mr Baynie sourced period matching internal fit-out from a boutique custom joinery and hardware specialist. An external colour consultant was also engaged in order to match period features.
  4. Mr Baynie purchased the Premises in December 2013 for $2.4 million. When he sold the Premises in June 2016 for $3.125 million he had spent more than $1.4 million on materials and external trades and consultants to renovate the Premises. He deposed that he has lost his life savings on the project. He has not profited in any way by selling the Premises in an unfinished state.
  5. Mr Baynie deposed that at all times he used his best endeavours to comply with development applications. He always provided access to the Council to inspect the Premises. During these inspections Council officers took photographs of work that was in the process of being restored or reinstated. Mr Baynie cooperated and attended all meetings with the Council when requested.
  6. Mr Baynie deposed that he did not intentionally remove heritage items or make significant changes to the Premises. He intended to improve, enhance and restore the Premises.
  7. Mr Baynie was of the opinion that the Premises is worth more with the heritage items restored and that their removal would have devalued the Premises. He attempted to preserve these items in order to maximise the value of the Premises. Mr Baynie was not acting as a developer seeking to maximise profit through cost cutting. The external consultants he engaged are evidence of this. He intended to live in the Premises with his children upon completion.
  8. Two character references were attached to Mr Baynie’s affidavit. Both attested to Mr Baynie’s good character and stated that Mr Baynie had fallen on hard times personally and financially.
  9. Mr Baynie stated at the sentencing hearing that he was formerly a building supervisor and had been a director of several development companies.

Purposes of sentencing

  1. Section 3A of the Crimes (Sentencing Procedure) Act 1999 (CSP Act) identifies the purposes of sentencing. It states:
3A Purposes of sentencing
The purposes for which a court may impose a sentence on an offender are as follows:
(a) to ensure that the offender is adequately punished for the offence,
(b) to prevent crime by deterring the offender and other persons from committing similar offences,
(c) to protect the community from the offender,
(d) to promote the rehabilitation of the offender,
(e) to make the offender accountable for his or her actions,
(f) to denounce the conduct of the offender,
(g) to recognise the harm done to the victim of the crime and the community.
  1. The Council submitted that factors (a), (b), (e), (f) and (g) are most pertinent to these proceedings.
  2. Section 21A of the CSP Act identifies numerous matters which a court must take into account when sentencing including in relation to aggravating (s 21A(2)) and mitigating (s 21A(3)) factors.

Objective circumstances

  1. Relevant factors to determine the objective gravity of an offence under the EPA Act were identified in Bentley v BGP Properties Pty Ltd (2006) 145 LGERA 234; [2006] NSWLEC 34 at [163] and Gittany Constructions Pty Ltd v Sutherland Shire Council (2006) 145 LGERA 189; [2006] NSWLEC 242 at [110] including the maximum penalty, objective harmfulness of the defendant's actions, reasons for the commission of the offence and state of mind of the offender. The foreseeability of the risk of harm is also relevant as well as the practical measures that could have been taken to avoid harm and defendant’s control over the causes of the harm, per Council of the Municipality of Kiama v Pacific Real Estate (Warilla) Pty Ltd [2009] NSWLEC 191 at [67].

Nature of the offences

  1. Another relevant factor can be consideration of the statutory scheme in which the offence provision appears, see Blue Mountains City Council v Carlon [2008] NSWLEC 296 at [48] and Mosman Municipal Council v Menai Excavations Pty Ltd (2002) 122 LGERA 89; [2002] NSWLEC 132 at [35]. An important consideration in this case is upholding the statutory scheme for orderly planning in NSW under the EPA Act, as identified in numerous cases including Menai Excavations and Burwood Council v Doueihi (2013) 200 LGERA 152; [2013] NSWLEC 196 and Pittwater Council v Scahill (2009) 165 LGERA 289; [2009] NSWLEC 12 at [46].
  2. The objects of the EPA Act are outlined in s 5 and include:
5 Objects
The objects of this Act are:
(a) to encourage:
(i) the proper management, development and conservation of natural and artificial resources, including agricultural land, natural areas, forests, minerals, water, cities, towns and villages for the purpose of promoting the social and economic welfare of the community and a better environment,
(ii) the promotion and co-ordination of the orderly and economic use and development of land,
...
(vi) the protection of the environment, including the protection and conservation of native animals and plants, including threatened species, populations and ecological communities, and their habitats, and
...
(c) to provide increased opportunity for public involvement and participation in environmental planning and assessment.
  1. These objects are achieved partly through the system of planning approval, which requires that a person have development consent to carry out development (other than development that does not require consent). This system ensures through public consultation and proper assessment of applications the efficient and sustainable development of NSW. This consideration informs the assessment of the seriousness of an offence of this nature based on the objective circumstances.
  2. The carrying out of development without consent undermines the effectiveness of statutory planning controls. But for these offences the heritage value of the Premises was protected under the relevant planning instruments. The offences resulted in that protection being rendered ineffective.

Maximum penalty

  1. The maximum penalty for an offence is a relevant consideration reflecting the seriousness of the offence as nominated by Parliament, Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 at 698.
  2. The maximum penalty for the three offences differs due to the introduction of a three tier offence regime into the EPA Act by amendments contained in the Environmental Planning and Assessment Amendment Act 2014 which came into force on 31 July 2015. The first offence, committed prior to the amendments, carries a maximum penalty of $1,100,000. The second and third offences are tier two offences under the new regime and are subject to a maximum penalty of $500,000 under s 125B(2)(b) of the EPA Act.

Harm and potential harm

  1. The Premises are of local heritage significance. Before the offence the building was a good intact example of a two storey circa 1909 house designed in the Federation Arts and Crafts style by well-known architect Howard Joseland. The building retained its original form, character and detailing (SOAF at [20]-[22]). Carrying out development without consent denied the Council the opportunity to assess the condition of the work to protect and retain its heritage significance or ensure that a formal photographic archive was kept, see City of Sydney Council v Schwartz [2003] NSWLEC 261 at [6].
  2. In relation to the first offence, the unlawful demolition and alterations to the exterior and structural changes to the interior of the Premises caused serious harm to the heritage fabric, as recorded in the SOAF at [85]. The heritage impact of the works was assessed extensively. The Council identified 45 individual works in the SOAF at [84]. These were apparent in the photographs within Exhibit B. Although some of the works (15) caused moderate, low or no harm, most (30) affected items which were of high heritage significance as they were part of the original fabric of the heritage listed house. It is unlikely that items that may be used to reinstate the Premises would be able to completely compensate for the reduction in heritage significance caused by the loss of the original fabric (SOAF at [84]). The removal of original components from the Premises had a high impact on its heritage significance (SOAF at [85]).
  3. The work undertaken in relation to the second offence was less extensive and had less impact on the heritage fabric of the Premises but did cause further damage to that fabric.
  4. The third offence concerns the failure to remedy the damage to heritage items through compliance with orders issued by the Council. Consequently the harm which was caused by the first and second offences continued.

Defendant’s state of mind

  1. The offences are strict liability. The state of mind of Mr Baynie in committing them is not an element of the offences. His state of mind in committing the offences and the reasons for doing so may increase their objective seriousness. A strict liability offence that is committed intentionally, negligently or recklessly will be objectively more serious than one not so committed, Gittany at [123]. In sentencing, matters adverse to a defendant must be established beyond reasonable doubt by a prosecutor per R v Olbrich at [27]-[28].
  2. The Court of Appeal described recklessness in the context of an environmental offence in Turnbull v Chief Executive of the Office of Environment and Heritage [2015] NSWCCA 278 at [61] per Button J (Meagher JA and McCallum J agreeing):
... his Honour found the lesser state of mind of recklessness, based upon the inference that, having heard what Mr Farago had said to the grandson, the applicant appreciated that there was a substantial risk that what he was doing was unlawful: see generally (in the context of reckless wounding) R v Coleman (1990) 19 NSWLR 467; (1990) 47 A Crim R 306; and Blackwell v R [2011] NSWCCA 93; (2011) 81 NSWLR 119
  1. The Council submitted that Mr Baynie was reckless in committing the first offence because he failed to make relevant inquiries prior to commencing works on the Premises, relying on Council of the City of Sydney v Adams [2015] NSWLEC 206 at [57]. Mr Baynie did not say anything about why he committed the first offence in his affidavit.
  2. Mr Baynie has previously been involved in the business of property development and can be assumed to have some familiarity with how planning laws operate. If the Council wished to establish recklessness meaning that Mr Baynie appreciated that there was a substantial risk in doing demolition and building work without development consent however, it should have adduced relevant evidence rather than rely on supposition given the obligation it bears under R v Olbrich. The Council has not sought to call evidence to establish whether explicitly or by inference that Mr Baynie was on notice of the potential risk of illegality in relation to the first offence. His actions in requesting permission to cut down a tree at the premises inviting an inspection from a Council officer suggests he did not act recklessly in the legal sense of that word.
  3. In relation to the second offence committed between 23 October 2015 and 23 February 2016 the Council submitted and I accept that Mr Baynie acted intentionally. He was advised of the need to obtain development consent on 25 March 2015 (SOAF at [41]). He lodged a development application including a statement of heritage impact for alterations and additions to the Premises on 2 October 2015 (SOAF at [47]-[48]). This application was never determined and was formally withdrawn by Mr Baynie on 7 September 2016. Mr Baynie nevertheless proceeded with further works the subject of the second offence (SOAF at [70]-[71]). Mr Baynie stated in his affidavit that the Council was “dragging out the DA process”. I infer this was an explanation for the second offence which occurred after a DA was lodged on 2 October 2015. Mr Baynie’s statement in his affidavit that he attempted to comply with development applications can have no relevance in this case as no development consent was granted.
  4. The Council submitted the third offence was also committed intentionally based solely on the absence of compliance by Mr Baynie. That alone does not give rise to a finding of intention. Mr Baynie’s general explanation for his circumstances after the work giving rise to the first two offences was that he had run out of money doing the renovations. That is a likely explanation for why he did not comply with the two orders to rectify under s 121B of the EPA Act the subject of the third offence.

Reasons for commission of the first offence

  1. A defendant’s reasons for committing the offence can be relevant in determining the appropriate penalty, Axer Pty Ltd v Environment Protection Authority (1993) 113 LGERA 357 at 366. An offence committed for financial gain is an aggravating factor per s 21A(2)(o) of the CSP Act.
  2. Mr Baynie deposed in his affidavit that he intended to improve, enhance and restore the Premises. Mr Baynie stated orally he was trying to make the Premises habitable for his children. Mr Baynie relied on obtaining the report of a heritage consultant. I infer this was the remedial works report obtained after the first offence, a requirement of the Council expressed in a notice of intention to serve an order under s 121H of the EPA Act issued to Mr Baynie on 21 April 2015 (SOAF at [24]). He denied that the works were committed for financial gain and thought that the Premises would be worth more with the heritage items restored.
  3. The Council submitted that while the works undertaken were intended to make the Premises more liveable, Mr Baynie was also motivated by increasing the resale value of the Premises. There is no evidence to support that submission and any matter adverse to Mr Baynie’s interests must be established beyond reasonable doubt.
  4. Mr Baynie’s evidence that the work was intended to restore the heritage value of the Premises is difficult to reconcile with what occurred. Extensive parts of the irreplaceable internal and external heritage fabric of the Premises were destroyed in the first offence in particular as identified in the SOAF at [45] the adverse impact on heritage values of which is assessed in the SOAF at [84].
  5. The extensive work undertaken is difficult to reconcile with Mr Baynie’s evidence that he wished to make the Premises habitable for his children. The real estate agent photographs attached to the SOAF show an intact and well maintained house at the time of sale to Mr Baynie. The work the subject of the first and second offences he caused to be undertaken included removal of decorative heritage details such as architraves, picture rails, plaster ceilings, fireplaces, wall linings, original doors, original chimneys and original floorboards inter alia. Extensive structural changes included the removal of walls, infilling of spaces with walls, expansion of doorways, new ceilings and removal of internal windows inter alia. Accepting one change Mr Baynie wanted to make was installing air conditioning as he stated orally, the work undertaken went well beyond what was required to achieve that.
  6. I accept Mr Baynie’s evidence that he did not derive any financial benefit in the circumstances of the sale of the Premises in their unfinished state. In fairness to Mr Baynie I will not make an adverse finding that he was motivated by financial gain but as stated above his actions are not entirely explained by the reasons he has given.

Foreseeability of harm

  1. In the first offence period between 29 September 2014 and 26 March 2015 Mr Baynie caused extensive work to the Premises to occur, the majority of which has been identified in the SOAF as having significant and irreversible heritage impact. The photographs attached to the SOAF make apparent the extensive nature of the work. Given the extensive work undertaken in relation to the first offence the harm caused was reasonably foreseeable.
  2. After publication of the remedial works report it was reasonably foreseeable to Mr Baynie that his actions in demolishing and altering parts of the Premises would cause harm to the Premises and its heritage significance, as occurred in relation to the second offence committed between 23 October 2015 and 23 February 2016.
  3. After the period of the first offence the Council issued a notice of intention to serve an order on 21 April 2015 requiring Mr Baynie to, inter alia, engage the services of a qualified heritage architect to prepare a report addressing restoration of the Premises to the same condition as prior to the works the subject of the first offence (SOAF at [24]). Mr Baynie commissioned and provided the Council with such a report prepared by Rappoport dated 29 June 2015 (SOAF at [46]). The report recommended extensive remedial action to rectify the unauthorised development at the Premises. Failing to comply with the remediation orders the subject of the third offence continues the harm and that harm was also foreseeable.

Practical measures to prevent harm

  1. The practical measures that Mr Baynie could have taken to avoid or mitigate environmental harm were set out in the remedial works report as well as the notices of intention and orders issued by the Council (SOAF at [23]-[24], [27]-[28], [30]-[31]). Most significantly Mr Baynie could have sought the advice of the Council and the necessary development consent before commencing any work.

Control over causes

  1. Mr Baynie had control over the work on the Premises giving rise to the offences (SOAF at [53], [64]).

Conclusion on objective seriousness

  1. Considering all the above factors separately in relation to each of the offences, the first and second offences are at the low end of moderate objective seriousness. The third offence is at the high end of low objective seriousness.

Subjective factors

  1. Various subjective factors must be considered as identified in the CSP Act.

Prior record and good character of the Defendant (s 21A(3)(e)-(f))

  1. Mr Baynie has no prior convictions.
  2. Mr Baynie provided two references of close relatives who were aware of his circumstances. I am satisfied that he is of good character.

Likelihood of reoffending (s 21A(3)(g))

  1. No submissions were made by either party on whether Mr Baynie is likely to reoffend. Given the substantial adverse financial impact suffered by Mr Baynie as a result of these offences I consider Mr Baynie is well and truly aware of his obligations under the EPA Act and consider he is unlikely to reoffend.

Remorse and contrition (s 21A(3)(i))

  1. Mr Baynie expressed remorse for his actions in his affidavit dated 6 September 2017 and at the sentencing hearing.

Early plea of guilty (ss 21A(3)(k), 22)

  1. An early plea of guilty may entitle a defendant to a discount in penalty in the range of 10-25%, R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309 at 419. Mr Baynie pleaded guilty at the earliest practical opportunity. Accordingly, he should be entitled to receive the maximum discount of 25% of the penalty imposed.

Assistance to authorities (ss 21A(3)(m), 23)

  1. Mr Baynie fully cooperated with Council officers during inspections of the Premises on numerous occasions outlined in the SOAF.

Deterrence

General

  1. Deterrence is an important factor in sentencing for environmental offences. As held by Preston CJ in BGP Properties at [139]-[140]:
The sentence must serve the purpose of general or public deterrence. It is the duty of the Court to see that the sentence which is imposed will operate as a powerful factor in preventing the commission of similar crimes by those who might otherwise be tempted by the prospect that only light punishment will be imposed: R v Rushby [1977] 1 NSWLR 594 at 597 to 598.
This factor is particularly relevant to environmental offences. Persons will not be deterred from committing environmental offences by nominal fines: Environment Protection Authority v Capdate Pty Limited (1993) 78 LGERA 349 at 354 and Director-General, National Parks and Wildlife v Wilkinson [2002] NSWLEC 171 (27 September 2002) at paras 85 and 93 per Lloyd J.
  1. General deterrence is particularly relevant in these circumstances. The integrity of the planning system in NSW should be upheld. Persons intending to carry out development cannot operate under the impression that if they were to do so without development consent the penalty would not be substantial.

Specific deterrence

  1. The Council submitted that specific deterrence was also relevant. Mr Baynie continued to do or cause work to be done despite stop work orders being issued. Given the depleted financial position which Mr Baynie finds himself in and that these offences have no doubt proved a salutary lesson, I consider Mr Baynie is unlikely to reoffend. No specific deterrence is warranted in sentencing.

Even-handedness

  1. The principle of even-handedness requires that the Court consider if there is any sentencing pattern for like offences in order to determine a consistent approach to penalty, R v Visconti [1982] 2 NSWLR 104. This principle must always be applied subject to the particular circumstances of the case before the Court, Hoare v R (1989) 167 CLR 348; [1989] HCA 33. The principle of even-handedness in sentencing so that like offences receive like sentences is recognised, but each case must be determined on its own facts, Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45. A history of sentencing in other cases does not limit my sentencing discretion.
  2. The Council identified two cases involving unauthorised works to structures listed as heritage items. In both cases the maximum penalty for the offences was $1,100,000. In Leichhardt Council v Geitonia Pty Ltd (No 7) [2015] NSWLEC 79 the defendants – a development company, its director and sole shareholder and its project manager – were convicted after a trial for carrying out development otherwise than in accordance with an operative development consent. The defendants demolished the street-facing facade of a building which was required to be preserved under the consent for demolition of the rest of the building. The harm caused was significant having regard to the heritage significance of the facade and by undermining the integrity of the regulatory system of development control, at [18], [23]. The offence was committed intentionally and in deceptive circumstances, at [26]-[27]. Financial gain was a motivating factor, at [28]. The defendants were fined $50,000, $150,000 and $50,000 respectively, at [68].
  3. In Adams the defendant demolished items identified as being of exceptional significance within a heritage listed house. This included the irretrievable loss of original plaster and fabric. The defendant continued the demolition after being orally directed to stop work by a council officer. The offence caused actual harm of medium seriousness, at [33], [37]. The defendant belatedly applied for and obtained development consent for the works, some of which may have involved partial mitigation of the harm, at [35]-[36]. The offence was committed recklessly but not intentionally, at [44]. The defendant was fined $80,000 reduced to $60,000 accounting for an early guilty plea, at [82]. The defendant was also ordered to pay the prosecutor’s costs of $35,000 which was taken into account in fixing the fine, at [84].
  4. This matter is of lesser objective seriousness than Geitonia and has some similarity to Adams.
  5. In relation to offences involving a breach of an order issued under s 121B of the EPA Act the Council referred to Burwood Council v Matthews [2013] NSWLEC 23. In that case the defendant carried out demolition and construction works on a house without obtaining development consent. The works had been recommended by engineers in a report on the structural stability of the premises. The defendant then failed to comply with a stop work order issued by the local council. The sentencing judge held at [32] that the offences did not cause harm to the environment or endanger human health and safety. The contravention of the s 121B order was held to be deliberate although the failure to obtain development consent before commencing works was characterised as reckless or negligent, at [37]-[38]. A fine of $20,000 was imposed for the s 121B order offence discounted by 33% having regard to an early guilty plea and other subjective factors to $13,400. A fine of $10,000 was imposed for the offence of development without consent after applying the totality principle, discounted by 33% to $6,700, at [67].

Totality principle

  1. The sentencing principle of totality is relevant where more than one similar offence is committed to ensure that the sum of any fines imposed are not disproportionate to the total criminality of a defendant. In Environment Protection Authority v Wattke; Environment Protection Authority v Geerdink [2010] NSWLEC 24 at [98] I said:
... That principle requires a judge to determine the appropriate sentence for each offence and when reviewing the aggregate sentence, consider whether it is just and appropriate. In this way the overall criminality of all the offences is reflected proportionately in the sentences imposed, Mill v R [1988] HCA 70; (1988) 166 CLR 59 at 62, Postiglione v R [1997] HCA 26; (1997) 189 CLR 295, and Pearce v R [1988] HCA 57; (1988) 194 CLR 610.
  1. The first and second offences arise from the same general course of conduct of unlawful development albeit that I have found the second offence was committed intentionally. I will consider these together for the purposes of applying the totality principle. The third offence of failing to comply with council orders is of a different character and should be considered as a separate offence.

Capacity to pay a fine

  1. Section 6 of the Fines Act 1996 provides that in fixing a penalty a court is required to consider information regarding the financial means of the defendant as is reasonably and practicably available.
  2. Mr Baynie swore a second affidavit dated 13 October 2017 in which he provided information about his means. Mr Baynie deposed that he is in significant financial hardship owing to several outstanding personal and company debts and liabilities. He is unemployed. Attached to Mr Baynie’s second affidavit was documentary evidence which supported his assertions concerning his limited means.
  3. Mr Baynie was cross-examined on matters arising from his second affidavit which confirmed his former directorships of various development and construction companies and financial circumstances prior to the purchase of the Premises. Mr Baynie stated that although he is currently the director of a company he has not received any business or income from this venture. A historical company extract for this company retrieved from the ASIC database was tendered as Exhibit D. An historical personal name extract showing Mr Baynie’s various roles in previous companies became Exhibit E. Mr Baynie tendered assessments prepared by his accountant on 17 October 2017 (I note these documents were not tax returns lodged with the ATO which must be verified) for the two most recent financial years which supported his statements about his limited financial means. The assessments became Exhibit 1. I will take into account Mr Baynie’s present financial difficulties in setting penalties.

Costs

  1. The Council seeks an order for payment of its professional costs as agreed or assessed under s 257B of the Criminal Procedure Act 1986. The costs had not been agreed at the time of the hearing. These are likely to be substantial. I will take this circumstance into account in setting the penalties as an appropriate exercise of my sentencing discretion per Environment Protection Authority v Barnes [2006] NSWCCA 246 at [78], [88] per Kirby J (Mason P and Hoeben J agreeing).

Penalties

  1. The Council submitted that where the circumstances of the offence are serious, the limited means of a defendant to pay a fine is not the most important factor. Other important considerations include deterrence and denunciation. The Council submitted that a small or nominal fine would not operate as an appropriate deterrent to Mr Baynie and others, citing Environment Protection Authority v Barnes at [64] per Kirby J (Mason P and Hoeben J agreeing), Environment Protection Authority v Douglass (No 2) [2002] NSWLEC 94 at [15]- [17], Environment Protection Authority v Emerald Peat Pty Ltd (in liq)  [1999] NSWLEC 147  at [77] and Leichhardt Council v Geitonia Pty Ltd (No 7) at [41]. These submissions are relevant in this matter given my finding of moderate objective seriousness in relation to the first and second offences.
  2. When sentencing the Court must apply the instinctive synthesis approach by identifying all the relevant factors, discussing their importance and making a “value judgment as to what is the appropriate sentence given all the factors of the case”, Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 at [26] unanimously following Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [51] per McHugh J. The sentence must reflect all the relevant objective circumstances of the offence and subjective circumstances of the defendant, see Veen v The Queen (1979) 143 CLR 458; [1979] HCA 7 at 490 and Veen v The Queen (No 2) (1988) 164 CLR 465; [1988] HCA 14 at 472-473, 490-491. The sentence should not exceed what is “justified as appropriate or proportionate to the gravity of the crime considered in the light of its objective circumstances”, per Veen (No 2) at 472, 485-486, 490-491, 496 and Hoare at 354 per Mason CJ, Deane, Dawson, Toohey and McHugh JJ.

Summons number 17/88980 (first offence)

  1. Taking into account the moderate objective seriousness of the first offence the appropriate penalty is $70,000. I will reduce this by 40% in light of the early plea of guilty and the limited financial means of Mr Baynie to $42,000.

Summons number 17/88981 (second offence)

  1. In light of the totality principal, and reflecting the reduction in the maximum penalty at the time of the second offence, the appropriate penalty in relation to the second offence is $20,000.

Summons number 17/88982 (third offence)

  1. The appropriate penalty for the third offence is $30,000 which I will reduce by 50% in light of mitigating circumstances such as the early plea of guilty and the limited financial means of Mr Baynie to $15,000.
  2. The total penalty in respect of the three offences is $77,000.
  3. Under s 7 of the Fines Act fines are payable within 28 days. An application for time to pay a fine which includes costs can be made to the Registrar of the Court under s 10 of the Fines Act.
  4. As an administrative matter, all fines including costs should be paid to the Land and Environment Court Registry.

Orders

  1. The Court makes the following orders:

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