Land and Environment Court New South Wales

• Medium Neutral Citation: Burwood Council v Pratelli [2014] NSWLEC 28
• Hearing dates: 13 March 2014
• Decision date: 13 March 2014
• Jurisdiction: Class 5
• Before: Preston CJ

Decision

Orders as set out at [45]

• Catchwords: PROSECUTION - carry out development not in accordance with development consent - objective gravity low - no actual harm to environment or human health and safety - no heightened state of mind - no profiting from offence - need for general but not specific deterrence - no prior convictions - early plea of guilty - genuine remorse and contrition - rectification of some and undertaking to rectify remaining discrepancies from approved plans - fine and order for costs
• Legislation Cited: Crimes (Sentencing Procedure) Act 1999 ss 3A, 21A; Criminal Procedure Act 1986 s 257B; Environmental Planning and Assessment Act 1979 ss 96, 125(1)
• Category: Principal judgment
• Parties: Burwood Council (Prosecutor); Mrs Rosa Maria Pratelli (Defendant)
• Representation: Mr S E Shneider (Solicitor) (Prosecutor); Mr F C Corsaro SC with Mr D G Phair (Solicitor) (Defendant); Houston Dearn O'Connor (Prosecutor); Dettmann Longworth Lawyers (Defendant)
• File Number(s): 50557 of 2013
• Publication restriction: No

Judgment

1 Mrs Pratelli was the holder of an owner/builder permit for the construction of a new two storey dwelling with attached double garage at 47 Stanley Street, Croydon Park. The dwelling was to be the new home for Mr and Mrs Pratelli.

2 Burwood Council granted development consent dated 13 April 2010 for the dwelling subject to numerous conditions. Three are of relevance.

3 Condition 1 required the development to be carried out in accordance with, amongst other documents, the plan submitted on 5 March 2010, except where amended by the conditions of consent.

4 Planning condition 2 required: "The subfloor storage area being nominated as foundation space only and not being used for habitable, commercial or industrial purposes."

5 Building condition 27 required the building works to be inspected during construction by the principal certifying authority, or an appropriate accredited certifier authorised by the principal certifying authority, at the stages identified in the conditions.

6 Between 16 April 2010 and 13 April 2012, Mrs Pratelli carried out the development of construction of the dwelling. The Council contended that she did not do so in accordance with the three conditions of the development consent. The Council prosecuted Mrs Pratelli for committing the offence against s 125(1) of the Environmental Planning and Assessment Act 1979 ('EPA Act') of carrying out development otherwise then in accordance with the development consent.

7 The particulars to the statement of charge identify the respects in which the Council contended Mrs Pratelli did not carry out development in accordance with the development consent. These were that, first, Mrs Pratelli did not carry out the development in accordance with the plans submitted on 5 March 2010 as amended (contrary to condition 1); second, Mrs Pratelli "has not used the sub floor storage area as foundation space only" (contrary to planning condition 2); and third, Mrs Pratelli did not request or obtain inspections at all of the stages identified in building condition 27 (contrary to building condition 27).

8 Mrs Pratelli has pleaded guilty to the offence charged. This plea of guilty admits all of the elements of the offence against s 125(1) of the EPA Act but not the particulars of the charge. In particular, Mrs Pratelli identified that, while she admitted the facts particularised with respect to the breach of condition 1 and building condition 27, she did not admit the facts particularised with respect to planning condition 2. Hence, in relation to the alleged breach of planning condition 2, the Council bore the onus of proving beyond reasonable doubt that Mrs Pratelli did breach planning condition 2.

9 The sentence hearing has been heard today.

10 The Council read a number of affidavits. Mr Ezaz Biswas gave evidence that the land was subject to flooding in the one in 100 year flood event and that the basement or subfloor level as constructed is 8.83 metres, which is 1.37 metres lower than that flood level.

11 Mr McClure took photographs on 27 March 2013 of parts of the dwelling which were constructed otherwise than in accordance with the plans, particularly of the subfloor area.

12 Mr Silva gave evidence that the Council had been nominated as the principal certifying authority for the development by Mrs Pratelli, had been requested to undertake two critical stage inspections (being the first floor slab and the final inspection), but had not been requested to undertake five other critical stage inspections.

13 Mr Silva also gave evidence of his inspections of the parts of the dwelling not constructed in accordance with the approved plans, notably the subfloor area. He described the non-complying work, marked the noncomplying work on a copy of the construction certificate plan of the subfloor area, and took photographs on his inspection on 9 May 2012. In summary, the noncomplying work included:

• deeper excavation of the subfloor area, thereby increasing the floor to ceiling height to around 2.4 metres;

• insertion of two windows on the northern wall of a subfloor space below the living areas on the ground floor;

• erection of a partition wall in this subfloor space so as to create two rooms;

• insertion of two doors, one in each of the rooms, so as to provide access to the rooms from the sub-floor area;

• non-provision of a wall shown on the approved plans to the west of the nominated sub-floor storage so as to extend the sub-floor storage westwards;

• increasing the height of the door shown on the approved plans on the southern wall of the house providing external access to the sub-floor storage and installing a few steps (because of the lowered floor level);

• non-provision of a wall and access doors shown on the approved plan to the west of the double garage so as to allow greater access from the garage to the sub-floor storage; and

• relocation of the staircase shown on the approved plan so as to allow access from the ground floor to the sub-floor storage and garage, rather than the garage only.

14 Mr Silva recently reinspected the dwelling. He described his observations of the work done by Mrs Pratelli in an endeavour to rectify the discrepancies from the approved plans. He took photographs of his inspection on 11 March 2014. The main rectification works that have been undertaken by Mrs Pratelli so far are:

• the bricking up of the two windows on the northern wall;

• the removal of the two doors, thereby preventing access to the two rooms under the living areas on the ground floor; and

• the installation of a wall at the required location to the west of the sub-floor storage, thereby preventing access to the additional area to the west.

15 The Council tendered numerous documents, including the development consent, the approved plans, the construction certificate plans, the owner/builder permit, the photographs taken by Mr McClure and Mr Silva, and Mr Silva's annotated sub-floor plan showing the non-complying work.

16 Mrs Pratelli read two affidavits of herself and was crossexamined. She tendered some documents including three character references and a photograph of the noncomplying work done at the rear of the garage.

17 Mrs Pratelli explained that she wishes to continue to rectify the noncomplying work. She stated she intends to change the door on the southern side of the dwelling to conform with the approved plans. She intends to lodge with the Council an application under s 96 of the EPA Act to modify the development consent and approved plans with respect to the relocated staircase and the access from the garage to the sub-floor storage. This would involve construction of a new wall to prevent access from the relocated stairway directly to the sub-floor storage, thereby reinstating the position under the approved plans.

18 Mrs Pratelli said she and her husband wish to sell the house and to do this they wish to regularise the works and obtain an occupation certificate.

19 On the evidence before the Court, the Council has established the facts particularised with respect to Mrs Pratelli breaching condition 1 and building condition 27, but not those particularised with respect to breaching planning condition 2.

20 The breach of planning condition 2 particularised by the Council was not any failure to nominate the sub-floor storage area as foundation space only but rather that the sub-floor storage area was being used for habitable purposes. The evidence does not establish such use beyond reasonable doubt.

21 The photographs taken by Mr McClure and Mr Silva show a standard of fit out of the sub-floor space which might make it capable of being used for habitable purposes, such as tiles on the floor, light fittings and cupboard spaces but no actual use for habitable purposes. Mr McClure's photographs show no use at all. Mr Silva's photographs show storage of household chattels which supports use for storage only.

22 Mrs Pratelli's evidence was that the subfloor area was not intended to be used, and at no time has been used, for habitable purposes. Mrs Pratelli was not crossexamined on this evidence.

23 The Council therefore has failed to establish that Mrs Pratelli has used the sub-floor storage area for habitable purposes and hence has failed to establish that Mrs Pratelli breached planning condition 2. Mrs Pratelli therefore needs to be sentenced on the basis that she breached condition 1 and building condition 27 only.

24 The sentence I impose should reflect both the objective gravity of the offence and the personal or subjective circumstances of Mrs Pratelli.

25 I am required to consider, and have considered, the factors of relevance in s 21A of the Crimes (Sentencing Procedure) Act 1999 ('Sentencing Procedure Act') as well as general principles of sentencing. The purposes for which I may impose a sentence are those set out in s 3A of the Sentencing Procedure Act. Paragraphs (a), (b), (e), (f) and (g) are relevant and are purposes of sentencing for which I impose the sentence on Mrs Pratelli in this case.

26 The system of planning and development control established by the EPA Act depends on persons taking steps to obey the law by ascertaining when development consent is required, obtaining development consent before carrying out the development, and carrying out the development in accordance with that consent and each condition of that consent. Mrs Pratelli's actions in not complying with two of the conditions of the development consent granted to her undermines the system of planning and development control.

27 The maximum penalty for the commission of an offence against the EPA Act is $1.1 million. The maximum penalty is the public expression of the New South Wales Parliament of the seriousness of the offence. There is, however, a broad spectrum of conduct that can give rise to an offence under s 125(1) of the EPA Act. The conduct of Mrs Pratelli falls at the lower end of the spectrum.

28 The commission of the offence by Mrs Pratelli has not caused actual harm to the environment or to human health or safety. The fact that the subfloor area is subject to flooding in the one in 100 year flood event was only of relevance to the Council's allegation that Mrs Pratelli had used the sub-floor area for habitable purposes in breach of planning condition 2. As this was not established, this fact is not relevant. The breaches of condition 1 and building condition 27 did not cause any potential harm or give rise to any flood risk.

29 The offence against s 125(1) is a strict liability offence and hence the state of mind of the offender in committing the offence is not an element of the offence. Nevertheless, the offender's state of mind in committing the offence and the reasons for committing the offence can increase the seriousness of the offence. A strict liability offence that is committed intentionally, negligently or recklessly will be objectively more serious than one not so committed.

30 However, the Council has not established beyond reasonable doubt that Mrs Pratelli committed the offence against s 125(1) of the EPA Act in this case in any heightened state of mind. In the end, the Council accepted that the evidence did not establish that Mrs Pratelli committed the offence intentionally, negligently or recklessly.

31 The evidence also does not establish that Mrs Pratelli profited in any way from committing the offence. Mrs Pratelli explained that the builder had told her that the works that were carried out to the sub-floor area could be done and she went along with the builder's assurances. She now accepts that she was wrong to do so but she did not do so at the time in order to profit from undertaking the works.

32 The Council submitted that there is a need for general deterrence - that can be accepted. Other owner/builders need to be deterred from undertaking development otherwise than in accordance with all of the conditions of development consent, in particular conditions requiring construction in accordance with the approved plans and after inspections by the principal certifying authority of the critical stages of construction.

33 Mrs Pratelli submitted that there was no need to impose a sentence for specific deterrence purposes. This was Mrs Pratelli's first time in building a house or indeed in undertaking any development. She has well and truly learnt her lesson. She will not make the same mistake again. I accept Mrs Pratelli's submission.

34 In all the circumstances, I find that the objective gravity of the offence is at the low end of the spectrum.

35 Mrs Pratelli does not have any prior convictions for any environmental offences.

36 Mrs Pratelli entered her plea of guilty on the third occasion the matter was before the Court. This should be considered to be a plea at the earliest time practicable and of full utilitarian value. A discount of 25% should be allowed for the utilitarian plea of guilty.

37 Mrs Pratelli is contrite and remorseful. She has given evidence that she is extremely sorry for her actions and for committing the offence. She has insight into why her actions were wrongful. She has assured the Court she will not repeat the wrongful conduct in the future. I find Mrs Pratelli is genuine in her remorse and that she is unlikely to reoffend.

38 Mrs Pratelli has taken steps to rectify the noncomplying work. She has already rectified some of the works and has indicated how, and has pledged, to undertake further steps to modify the development consent and rectify the remaining noncomplying works. Mrs Pratelli has also offered to pay the prosecutor's costs of the proceedings. These steps and promised actions to rectify the noncomplying works are also evidence of Mrs Pratelli's genuine contrition and remorse.

39 Mrs Pratelli has given evidence of her and her husband's financial situation. It is adequate to pay a fine of the amount that I consider to be appropriate.

40 The sentence of the Court needs to publicly denounce Mrs Pratelli's conduct and to ensure that she is held accountable for her actions and is adequately punished. The sentence needs to operate as a deterrent to others who might be tempted to similarly carry out development otherwise than in accordance with the conditions of consent.

41 Having regard to the purposes of sentencing, I find it is appropriate in the circumstances of this case to convict Mrs Pratelli of the offence as charged and to impose a fine, being the prescribed penalty for the offence.

42 The amount of the fine should be determined by an instinctive synthesis of all of the relevant objective and subjective circumstances of the offence and the offender. Accordingly, I take into account the objective circumstances of the offence I have discussed earlier, as mitigated by the subjective circumstances of Mrs Pratelli that I have also discussed.

43 I consider the appropriate amount of the fine should be $13,000. This amount should be discounted by 25% to take account of the utilitarian value of Mrs Pratelli's early plea of guilty. This results in a fine of $9,750.

44 I consider it is appropriate for there to be an order under s 257B of the Criminal Procedure Act 1986 that Mrs Pratelli pay the prosecutor's costs. The prosecutor ought to be compensated for the costs of bringing the prosecution which is in the public interest. The amount of the costs will need to be agreed or assessed.

45 The Court orders:

(1) Mrs Pratelli is convicted of the offence against s 125(1) of the Environmental Planning and Assessment Act 1979 as charged.

(2) Mrs Pratelli is fined the sum of $9,750.

(3) Pursuant to s 257B of the Criminal Procedure Act 1986, Mrs Pratelli is to pay the prosecutor's costs of the proceedings as agreed or assessed.

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Decision last updated: 26 March 2014