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Mosman Municipal Council v Mitchelson [2002] NSWLEC 111 (11 July 2002)

Last Updated: 16 July 2002

NEW SOUTH WALES LAND AND ENVIRONMENT COURT

CITATION: Mosman Municipal Council v Mitchelson [2002] NSWLEC 111


PARTIES:
PROSECUTOR
Mosman Municipal Council

DEFENDANT
Darren Mitchelson



CASE NUMBER: 50068 of 2001


CATCH WORDS: Prosecution


LEGISLATION CITED:
Crimes (Sentencing Procedure) Act 1999, s 10
Environmental Planning and Assessment Act 1979, s 125
Mosman Local Environmental Plan 1998

CORAM: Cowdroy J

DATES OF HEARING: 30/05/02

DECISION DATE: 11/07/2002


LEGAL REPRESENTATIVES

PROSECUTOR
Mr P Tomasetti (Barrister)

SOLICITORS
Pike Pike Fenwick

DEFENDANT
Mr J Robson (Barrister)

SOLICITORS
M E McMahon & Associates



JUDGMENT:

Mosman Municipal Council

Prosecutor

v

Darren Mitchelson

Defendant

JUDGMENT

1. In these proceedings Mosman Municipal Council as prosecutor (“the council”) charges Darren Mitchelson (“the defendant”) with an offence under s 125(1) of the Environmental Planning and Assessment Act 1979 (“the EP&A Act”) in that he caused development to be carried out contrary to a development consent (“the offence”). The offence arises out of the demolition of portions of the exterior walls of a building known as Bradleys Head Private Hospital (“the building”) which, pursuant to the consent, were to be retained. The development was located at 66 Bradleys Head Road Mosman (“the property”).
2. The defendant has entered a plea of guilty and has agreed to pay the council’s costs of the proceedings. Accordingly the Court is only required to determine penalty.

The Consent
3. An agreed statement of facts has been admitted into evidence and supplemented by several affidavits. The council has not sought to challenge the evidence given by the defendant concerning the commission of the offence.
4. By development application dated 4 April 2000 Waratah Village Partners Pty Limited (“Waratah Village”) sought approval of the council for development of the property described as a “10 unit retirement village conversion from Private Hospital” (“the development”). Plans lodged with the development application showed that several portions of the exterior walls were to be retained. The application was accompanied by an objection under State Environmental Planning Policy (“SEPP”) 1 because the proposed maximum height of the development did not comply with clause 13 of SEPP 5 (Housing for Older People or People with a Disability).
5. The council upheld the SEPP1 objection and development consent was granted on 1 September 2000 (“the consent”) in respect of “Alterations and additions to existing building for its conversion to 10 dwellings for a residential care facility for older people or people with a disability” in accordance with the plans submitted with the development application. Accordingly consent was not granted for the total demolition of the building.

Planning controls applicable to the property
6. The property is within a heritage conservation area under the provisions of Mosman Local Environmental Plan 1998 (“the Mosman LEP”). Clauses 32 to 38 of the Mosman LEP are relevant to development within heritage conservation areas. Clauses 32 and 33 of the Mosman LEP as it existed at the time of the offence relevantly provided:-

32 Heritage conservation objectives
(1) The objectives of this Part are:
(a) to conserve the environmental heritage of the local government area of Mosman, and
(b) to ensure that any development does not adversely affect the heritage significance of heritage items and heritage conservation areas and their settings, and

...

33 Protection of heritage items and heritage conservation areas
(1) The following development requires the Council’s consent:
(a) demolishing, defacing, damaging or moving a heritage item or a building, work, relic, tree or place within a heritage conservation area, or
(b) altering a heritage item or a building, work or relic within a heritage conservation area by making structural changes to its exterior, or
(c) altering a heritage item or building, work or relic within a heritage conservation area by making non-structural changes to the detail, fabric, finish or appearance of its exterior, except changes resulting from any maintenance necessary for its ongoing protective care which does not adversely affect its heritage significance, or

...
(e) erecting a building on, or subdividing, land on which a heritage item is located or which is within a heritage conservation area.

At the time of the offence the property was listed as a heritage item under the provisions of the Mosman LEP.

The Offence
7. The defendant was contracted by a corporation known as Equity & Law Pty Limited to oversee potential residential developments in the Sydney Metropolitan Area. One such project comprised the development.
8. The defendant’s role as a project manager was to supervise and organise the carrying out of works on the development. His duties included engaging sub-contractors, supervising work on the site, providing access to staff and contractors, liaising with Menai Excavations Pty Ltd (“Menai Excavations”) and engaging them to carry out demolition work.
9. Paul Gearing, a certifier from Inspec Pty Ltd was appointed certifier for the project (“the certifier”). A construction certificate for the development was issued on 20 December 2000 and following its issue Menai Excavations commenced demolition works on the property.
10. On 18 January 2001 whilst demolition was in progress the defendant contacted Mr Charles Dalrymple of Taylor Thompson Whitting, the engineer for the project (“the engineer”) and requested him to assess the safety of the walls and footings marked for retention. The engineer duly conducted an inspection and reported that such wall were not structurally sound.
11. Upon receipt of such report the defendant then conferred with the certifier and sought his consent to remove the unstable remaining walls. In the mistaken belief that such permission was given the defendant instructed Menai Excavations to demolish the remaining walls on the land. Such works were carried out between 10 and 30 January 2001.

Defendant’s evidence
12. The defendant testified that he met the certifier on 23 January 2001 to discuss demolition of the walls and footings which had been found to be unsound by the engineer, and understood the certifier gave him verbal approval for demolition of the walls and footings because of their instability. Believing that the certifier had authorised removal of the remaining walls the defendant ordered their demolition.

Council’s Submissions
13. The council acknowledges that a meeting took place between the defendant and the certifier. However the certifier reported to a council officer that he believed the defendant was seeking approval for demolition of minor internal walls and not the external walls of the building. The certifier was not called to give evidence to confirm nor deny the defendant’s testimony and the agreed statement of facts neither confirms nor disputes the defendant’s evidence.
14. The council does not challenge the defendant’s explanation. Nevertheless the council submits the offence calls for conviction and the imposition of a moderate fine. The council points to the need for the penalty to operate as a general deterrent to remind developers of the need to observe strictly conditions forming part of development consents as was considered in Canterbury City Council v Saad [2001] NSWLEC 31; (2001) 112 LGERA 429 at 432.

Mitigation
15. Several factors establish that the defendant’s conduct was not a deliberate attempt to circumvent the conditions forming part of the council’s consent but rather was an oversight arising from lack of expertise and experience. The defendant had not previously assumed the responsibilities of a project manager, and he has acknowledged that the duties he assumed in this new capacity were beyond his capabilities and experience.
16. The Court takes into consideration additional matters advanced in mitigation of penalty. The defendant did not stand to make any financial gain from the unauthorised demolition as he did not hold any equity in Waratah Village nor personal interest in the development. Secondly, only a small portion of the total wall area of the building was to have been retained pursuant to the consent. It is estimated that the walls to retained amounted to 12.5% of the total external wall area of the building. Thirdly, the entire building had been approved for demolition in a consent issued by council on 26 August 1999 which suggests that council, at least at that date, considered that the building was suitable for demolition.
17. The defendant has agreed to pay the council’s costs in these proceedings amounting to $16,551.40. The defendant also testified to the exacting toll of this prosecution on his health and family life. The defendant has no prior convictions. The defendant’s income has been approximately $60,000 per year for the past three years and his only cash asset consists of a share portfolio valued at $10,000.
18. The Court is prepared to accept that the defendant believed the advice given to him by the certifier was to the effect that complete demolition could take place. The defendant entered a plea of guilty at an early stage in the proceedings and thereby assisted the prosecution of the charge. In addition the defendant has shown considerable contrition and remorse for the consequences of his actions. The utilitarian value of a plea of guilty will generally entitle a defendant to a discount in penalty see Camilleri’s Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683; R v Thomson; R v Houlton (2000) 49 NSWLR 383; Cameron v R [2002] HCA 6 (now reported in 187 ALR 65).

Section 10 Crimes (Sentencing Procedure) Act 1999
19. The parties have agreed the offence is not “trivial” within the meaning of s 10 of the Crimes (Sentencing Procedure) Act 1999 accordingly no application under s 10 has been made. Nevertheless having regard to the various mitigating circumstances the Court gives reasons why it would not appropriate to apply s 10.
20. The fact an earlier consent had already been given for the demolition of the whole building does not excuse the offence. In Cooper v Coffs Harbour Council [1997] NSWSC 598; (1997) 97 LGERA 125 Howie AJ observed (at 143) that a breach of a tree preservation order was a serious breach of a development approval and that it was immaterial that the council may have given the requisite consent.
21. By analogy such finding is applicable to the present circumstances where the demolition of the building in toto may have been approved by council had it been sought. The offence arises from failure of the defendant to carryout the works without approval. In Director-General of the Department of Land and Water Conservation v Warroo (Lands) Pty Ltd [2002] NSWLEC 10, Talbot J said:-

It is no answer that consent would have been forthcoming or that it was likely to be granted. The law requires that an application be made and considered to enable the relevant assessments to be made in advance.
22. The Court takes account of these principles but determines that in the circumstances offence is one warranting the lowest range of penalty.

Orders
23. The Court makes the following orders:-

1. The defendant is convicted of the offence as charged.
2. The defendant is fined $2000.
3. The defendant to pay the council’s costs of these proceedings
4. Exhibits be returned.