Ashfield Council v Fuda

[1999] NSWLEC 79

Land and Environment Court

of New South Wales

CITATION:

Ashfield Council V Fuda [1999] NSWLEC 79

PARTIES

PROSECUTOR
Ashfield Council

DEFENDANT
Fuda

NUMBER:

50022 of 1998, 50033 of 1998 & 50042 of 1998

CORAM:

Pearlman J

KEY ISSUES:

:- building works - conservation area - without approval or consent - conviction - penalty

LEGISLATION CITED:

building works - conservation area - without approval or consent - conviction - penalty

DATES OF HEARING:

06/29/1998

EX TEMPORE JUDGMENT DATE:

06/29/1998

LEGAL REPRESENTATIVES:

PROSECUTOR
Ms C Schofield

SOLICITORS
Pike Pike & Fenwick

DEFENDANT
Mr J Thompson

SOLICITORS
Lapaine Pomarè & Forster

JUDGMENT:


IN THE LAND AND 50022, 50033 & 50042 of 1998
ENVIRONMENT COURT Pearlman J
OF NEW SOUTH WALES 29 June 1998

JOHN ROSS ON BEHALF OF ASHFIELD COUNCIL
Prosecutor
v
DOMINIC FUDA
Defendant

JUDGMENT

1. In this matter Mr Dominic Fuda is charged with three offences. They each relate to a property at 42 Barton Avenue, Haberfield (“the dwelling”) which is within a heritage conservation area.

2. In relation to each of the three matters, Mr Fuda entered a plea of guilty. Consequently the only matter with which I am concerned today is the question of penalty and costs. I need, however, to outline the basis of the charges and some history of the matter.

3. The first charge (No 50022/98) alleges an offence pursuant to s 125 of the Environmental Planning and Assessment Act 1979 (“the EP & A Act”) in that between 6 August 1997 and 29 August 1997 the defendant altered the dwelling by widespread removal of external brickwork without the consent of Ashfield Council (“the council”).

4. The second charge (No 50033/98) alleges an offence pursuant to s 125 of the EP & A Act in that the defendant erected a building, namely, perimeter basement walls, footings for a basement, a retaining wall and sub-floor excavation at the dwelling, again without the consent of the council.

5. The third charge (No 50042/98) alleges an offence pursuant to s 626(2) of the Local Government Act 1993 (“LG Act”) in that on or about 17 February 1998 the defendant undertook building works, again without having obtained the prior approval of the council.

6. Section 125 of the EP & A Act provides for offences against that Act and s 76(2) of the EP & A Act provides as follows:-

76(2) Subject to this Act, where an environmental planning instrument provides that development specified therein may not be carried out except with consent under this Act being obtained therefor, a person shall not carry out that development on land which that provision applies unless:
(a) that consent has been obtained and is in force under this Act; and
(b) the development is carried out in accordance with the provisions of any conditions subject to which that consent was granted and of that instrument.

Clause 33 of the Ashfield Local Environmental Plan relates to the Haberfield Conservation Area. Clause 33(2) provides:-

33(2) A person shall not demolish, alter, extend or erect a building or work within a heritage conservation area except with the consent of Council.

Clause 30 contains a definition of the word “alter” as follows:-

‘Alter’ means in relation to a heritage item or to a building work within a heritage conservation area
(a) make structural changes to the heritage item, building or work or
(b) make non structural changes to the detail, fabric, finish or appearance of the heritage item, building or work not including changes that maintain the existing detail, fabric, finish or appearance of the heritage item, building or work.


It is in relation to that definition, that the offences related to the re-skinning of the dwelling and the construction of a basement have been brought.

7. The council alleges that the replacement of the floors of the living room and bedrooms 1, 2 and 3, constitute building works which were undertaken without the prior approval of the council under s 626(2) of the LG Act, which provides as follows:-

626(2) A person who erects a building without having obtained a prior approval of the Council under Part 1 of Chapter 7 required for the erection of the building is guilty of an offence.


8. Section 68, which is in Pt 1 of the LG Act, sets out the activities for which consent is required. One of those activities appears in the table to s 68 in Pt A, item 1 as “Erect a building”. “Building” is defined in the dictionary to the LG Act as including part of a building and any structure or part of a structure. That describes the basis of the third charge.

9. I shall now deal with the history of this matter in relation to each of the alleged offences.

10. The first offence relates to removal of the external brickwork, or re-skinning. On 9 February 1994, the defendant made a development application seeking approval for development in relation to the dwelling including re-skinning of the building. On 22 April 1994, he was advised at a meeting, that the proposed re-skinning was not in accordance with the council’s policy. Between 27 April 1994 and 28 October 1994, various other meetings were held. At those, the Council confirmed that it did not approve of the re-skinning of the dwelling. On 31 October 1994, the development application was withdrawn. On 16 January 1995 a new development application was made seeking approval for replacement of the skillion roofed area at the rear of the dwelling and for the replacement of aluminium windows. It did not seek approval for re-skinning. That development application was approved subject to conditions on 23 June 1995. Building approval was given in March 1997 but, on 7 August 1997, the breach about which the council complains was observed in that external bricks had been removed from the side gable of the dwelling. The council on that date gave the defendant a notice under s 123 of the LG Act requiring cessation of the unauthorised removal of the outer skin of brickwork on the eastern facade of the dwelling. On 8 August 1997 council officers inspected the dwelling and found that almost all the external brickwork had been removed. On 18 November 1997 the council pursuant to development approval 186/97, approved the re-skinning and basement storage area but, as Ms Schofield on behalf of the council emphasised, no consent was ever given to the re-skinning which took place between 7 August and 26 August 1997.

11. On 27 August 1997 the Council officers observed that the basement was being constructed. No approval had been given, although subsequently, by the development consent I have already mentioned, numbered 186/97, the basement construction at the dwelling was approved subject to conditions.

12. The council's other charge is that timber floors in the living room and bedrooms 1, 2 and 3 were removed and a concrete slab was laid in their place. On 22 January 1998, the defendant attended at the offices of the council (as the affidavit of Ms Laura Assaf dated 19 March 1998 shows), and had a conversation with her in which he expressed his intention to install concrete floors in the existing bedrooms and living room. He asked if he needed approval. According to para 6 of her affidavit, Ms Assaf said that the existing approvals that had been given would not cover that work and that before undertaking that work he would need to submit new plans and probably a new building application. On 6 February 1998 engineering plans in relation to that work were submitted. On 17 February 1998, before the engineering plans had been dealt with by the council, the council officers observed that the floors had been removed and the concrete slab had been laid.

13. In relation to the offences under s 125 of the EP & A Act, that is, the offence relating to the re-skinning and the offence relating to the basement, the maximum penalty is $110,000 in relation to each offence. In relation to the offence under s 626(2) of the LG Act, the maximum penalty is $22,000.

14. As to the circumstances generally I note the following matters. First, Ms Schofield submitted that the penalties should be fixed at the higher end of the scale because, especially in relation to the re-skinning and the removal of the floors and replacement with a concrete slab, the actions were deliberate and in defiance of the council's requirements and in defiance of the council's warning.

15. Secondly, I note the concern of neighbours. A number of letters, copies of which are in evidence, were written by a neighbour Ms Brooks-Maher. Furthermore concern has been expressed by the Haberfield Association in relation to which Ms Jackson-Stepowski swore an affidavit.

16. Thirdly, I note that the Haberfield Conservation Area has high conservation value. That is set out at some length in both the affidavits of Ms Jackson-Stepowski and of Mr Moore, who is a heritage conservation architect retained by the council to provide it with heritage advice.

17. I note also the opinion of Mr Moore and other council officers that the works which have been done to the fabric of the dwelling are irreversible from a conservation point of view.

18. However, there are a number of factors I take into account in mitigation of penalties in favour of the defendant.

19. First, the defendant has entered a plea of guilty in relation to each offence. I am required by s 439 of the Crimes Act 1900 to take that into account.

20. Secondly, I note the defendant's claim (which was confirmed by the oral evidence given by Mr Moore) that the dwelling was out of keeping with the conservation heritage area beforehand in relation to a number of items. I list the items as follows:-

i. concrete balustrades,
ii. ceramic tiles,
iii. a concrete block fence,
iv. aluminium windows,
v. skillion at the rear,
vi. colorbond garage,
vii. two bricked up windows and door and a bricked up fanlight,

The defendant claims that, by removing these items and replacing them with more sympathetic items, he has done something to preserve at least some part of the heritage and conservation value of the dwelling. However, I balance those things against the fact that what has been done, that is the re-skinning and the construction of the basement and the removal of the floors, are irreversible matters.

21. Thirdly, the defendant also claims that the area is not a pristine area. Photographs were tendered which show that at least next door there are some houses which are out of keeping and not intact in the heritage area. However Mr Moore said that although there are some houses in the Haberfield Conservation Area that are not intact, there are many that are. The dwelling is one such house that is an example of the heritage value of the area which value has now been removed by the alterations that have been done.

22. The defendant claims that there was some ambiguity in conditions 3 and 5 of the consent that he had originally received in relation to the removal of the brickwork. I do not pause to interpret those conditions because, in any event, they were clarified or the position was made clear, as Ms Schofield pointed out, by the notice which the defendant received on 7 August 1997 when the re-skinning was first observed.

23. I also take into account the evidence of the council officers and of Mr Moore that the work that could have been done in relation to the replacement of the aluminium windows could have been done without re-skinning the whole of the external area of the dwelling.

24. I take into account in favour of the defendant that he has no prior convictions. I also take into account that the dwelling is his family home, that he has a young family and that the purpose of the restorations were for his family’s use. I also take into account and weigh up in the balance the fact that the defendant has already incurred considerable cost. The council has given the sum of $16,000 as an estimate of its costs of the proceedings. I accept that is very much an estimate and not a final figure. I am also informed by Mr Thompson, on behalf of the defendant, that he has incurred approximately $15,000 in relation to his own legal fees and those of a consulting architect, so that he has already been burdened by a sum of about $31,000.

25. The first offence (No 50022/98) relates to the re-skinning. I think that this is the most serious of the three offences. The defendant was warned repeatedly that re-skinning was against council policy. The damage to the heritage fabric is irreversible and there is an external impact in that the re-skinning is on the external facade of the dwelling. I think an appropriate penalty in those circumstances is $15,000.

26. In relation to the proceedings regarding the basement (No 50033/98) there was no prior warning, although the defendant must be presumed to know the law and to know that development consent was required for such construction. Nevertheless, the council concedes that the basement structure is not visible, it is for storage use only and it does not affect the presentation of the dwelling. I think that this is on the minor end of the scale and I think an appropriate penalty is $2,000.

27. In relation to the proceedings concerning the replacement of the floors in the living room and bedrooms 1, 2 and 3 with a concrete slab (No 50042/98), this is of a serious nature. The defendant was warned. The alteration has made an irreversible change to the fabric of the dwelling, although, of course, it is not visible. I think an appropriate penalty in this case is $5,000.

28. I therefore make the following formal orders.

In relation to proceedings 50022/98:

(1) The defendant is convicted of the offence with which he is charged.

(2) The defendant is fined the sum of $15,000 to be paid to the council within three months of today’s date.

COUNSEL ADDRESSED ON COSTS

(3) The defendant must pay the costs of the prosecutor as determined under s 52(2) of the Land and Environment Court Act 1979.

In relation to number 50033/98:

(1) The defendant is convicted of the offence with which he is charged.

(2) The defendant is fined the sum of $2,000 to be paid to the council within three months of today’s date.

(3) The defendant must pay the costs of the prosecutor as determined under s 52(2) of the Land and Environment Court Act 1979.

In relation to proceedings 50042/98:

(1) The defendant is convicted of the offence with which is charged.

(2) The defendant is fined the sum of $5,000 to be paid to the council within three months of today’s date.

(3) The defendant must pay the costs of the prosecutor as determined under s 52(2) of the Land and Environment Court Act 1979.