Dowsett v Grindley Construction Pty Limited

[1998] NSWLEC 75

Land and Environment Court

of New South Wales

CITATION:	DOWSETT v. GRINDLEY CONSTRUCTION PTY LIMITED [1998] NSWLEC 75
PARTIES:	DOWSETT v. GRINDLEY CONSTRUCTION PTY LIMITED
FILE NUMBER(S):	50081 of 1997
CORAM:	Lloyd J
KEY ISSUES:	:- Offences and penalties - unlawful erection of building - not guilty plea - doctrine of secondary participation - defence of honest and reasonable mistake unsuccessful - s 556A Crimes Act 1900 applied
LEGISLATION CITED:	Local Government Act 1993, ss 626(2), Ch 7 Pt 1; 669 Crimes Act 1900, s 556A
CASES CITED:	Giorgianni v the Queen (1985) 156 CLR 473 Mason J at 494 ; Von Lieven v Stewart (1990) 21 NSWLR 52
DATES OF HEARING:	28 July 1998
DATE OF JUDGMENT:	07/28/1998
LEGAL REPRESENTATIVES:	S W Gibb M W Anderson

JUDGMENT:

HIS HONOUR:

1. The defendant is charged with the following offence that between 19 December 1997 and 18 March 1998 at Lot 1 Deposited Plan 452236 at Port Botany, it contravened the provisions of s 626(2) of the Local Government Act 1993 in that it erected a building without the approval of Botany Bay City Council as required by the provisions of Part 1 of Chapter 7 of the said Act.

2. The property described as Lot 1 Deposited Plan 452236 at Port Botany is also known as 40 Penhryn Road, Port Botany and is part of the Port Botany port facility owned by the Sydney Ports Corporation. A stevedoring company, Patrick Stevedores No 1 Pty Limited, carries on its business at 40 Penhryn Road, Port Botany and was desirous in late 1997 of erecting a maintenance facility for the purpose of maintaining its cranes under cover.

3. On about 15 December 1997 its architect, Mr R Fiala of Humphrey and Edwards Architects, met Mr I Dencker and Mr R Dowsett of Botany Bay City Council and discussed the proposed building with them. He was told that it was necessary to lodge a combined development application and building application.

4. On 19 December 1997 the combined development application and building application was lodged with Botany Bay City Council seeking approval for the erection of a maintenance facility at 40 Penhryn Road, Port Botany. Although the development application was lodged in the name of Patrick Stevedores No 1 Pty Limited it was apparently lodged by Humphrey and Edwards Architects. The development application nominates the defendant, Grindley Constructions Pty Limited as the builder. I note, however, that the correct name of the defendant is Grindley Construction Pty Limited.

5. On 21 January 1998 a contract was entered into between Patrick Stevedores No 1 Pty Limited and the defendant, Grindley Construction Pty Limited, which could be described as a construction management contract. Under that contract Patrick Stevedores No 1 Pty Limited appointed the defendant as construction manager for the erection of the building. Under the contract the construction manager was appointed the agent of the principal. The construction manager was not liable for the construction means, methods, techniques, sequences and procedures employed by trade contractors, nor was it liable for the failure of any trade contractor to carry out the work under the contract, nor was it liable for the design of the works. The design of the works was carried out by the architects, Humphrey and Edwards.

6. The construction management contract provides that the principal shall retain the services of the consultant being a designer or a design team, in this case, the architect, to undertake responsibility for the design and that the principal shall, amongst other things, obtain and pay for any necessary approvals for the works.

7. According to the evidence, the functions of the construction manager involved the organisation of the work on behalf of the principal, Patrick Stevedores No 1 Pty Limited. That included the obtaining of quotes from sub-contractors, the supervision of the work and the general co-ordination of the work. In general, according to Mr Fiala, the architect, one of the duties of the construction manager was that of a facilitator in the process.

8. In December 1997 Mr Fiala was advised that it was likely that the necessary consent and approval would be forthcoming by about the end of January 1998. However, at a meeting held on 19 February 1998 between Mr Fiala and officers of the Council, it appeared that the Council wanted some additional information. This was promptly provided by the architects by facsimile letter on 27 February 1998.

9. On about 9 March 1998 Mr D Blackett, the Council's senior building surveyor, observed that building work was under construction at 40 Penhryn Road.

10. In a report dated 13 March 1998 Mr S Falato, a town planner employed by the Council, prepared a report recommending approval of the development application, subject to conditions.

11. A meeting took place on the site on 31 March 1998, attended by Mr Fiala (the architect), Mr Bertram representing Patrick Stevedores No 1 Pty Limited, Mr Southerton representing the defendant and officers of the Council. Mr Southerton admitted that the defendant, Grindley Construction Pty Limited, was the construction manager acting as agent for Patrick Stevedores No 1 Pty Limited and that this involved management of sub-contract trades. He did say that he was unaware that an approval was required from Botany Bay City Council for the building. He said that he thought that the position was similar to the situation which existed at Sydney Airport, that being Commonwealth property, which did not involve any input from the Botany Bay City Council.

12. The evidence of Mr Dowsett is that the particular building is an appropriate structure and, subject to some minor modifications, the building plans as submitted would have been approved. The building as now constructed is, moreover, substantially the same as that for which approval was sought. Development consent has since been granted for the use of the building and building approval has since been granted to complete the building. According to Mr Dowsett, there is no reason why an application for a building certificate should not be granted in due course under s 172 of the Local Government Act .

13. In December 1997, the Council's representatives had been told by Mr Fiala that there was some urgency in the need to erect the building. The building had to be finished by 1 May 1998 in order to satisfy an agreement reached between Patrick Stevedores No 1 Pty Limited and the Maritime Union of Australia and there was a very real prospect of an industrial dispute if the building was not completed by that date.

14. As I have said, the proceedings have been brought for a breach of s 626(2) of the Local Government Act which provides:

AA 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.

15. Mr M Anderson, who appears for the defendant, submits that the defendant is not a person who erected the building; and that the defendant was not a building contractor in the ordinary sense. The evidence on which he relies is the fact that the various sub-contractors were engaged by the principal, Patrick Stevedores No 1 Pty Limited and were paid by it. No employees of the defendant did any physical work in or about the building. The defendants participation was solely to act as an agent for its principal and at its direction.

16. Notwithstanding this submission, I am satisfied that the common law doctrine of secondary participation applies. The principle provides, in effect, that in proceedings against a secondary participant, no distinction is to be drawn between the principal offender and the secondary participant. The common law principal is now given statutory force in s 669 of the Local GovernmentAct which provides:

AA person:

(a) who causes the commission of an offence against this Act or the regulations; or

(b) by whose order or direction such an offence is committed; or

(c) who aids, abets, counsels or procures or by act or omission is directly or indirectly concerned in the commission of such an offence,

is guilty in the same degree and liable to the same penalty as the principal offender.

17. As I have said, the defendants function here was to organise the work on behalf of its principal, Patrick Stevedores No 1 Pty Limited. As an organiser of the work it is a person who falls fairly and squarely within paragraph (c) of s 669. That is to say, it is a secondary participant and therefore, no distinction is to be drawn between the principal offender and such secondary participant.

18. Mr Anderson further submits that the defendant is not liable because it held an honest belief on reasonable grounds that no approval was required. The fact that an approval was required is a requirement of the law. In my view, if the defendant was mistaken in its belief, then that is not an honest or reasonable mistake of fact.

19. In Giorgianni v the Queen (1985) 156 CLR 473 Mason J at 494 states:

AIn general, the absence of intention as an element of the substantive offence has not been regarded as obviating the necessity for knowledge on the part of the secondary party of the essential facts constituting the offence.'

20. The essential facts constituting the offence here are those set out in the charge, namely, the erection of a building within the City of Botany, without consent.

21. Mr S Gibb, who appears for the prosecutor, has referred me to Von Lieven v Stewart (1990) 21 NSWLR 52, in which Handley JA refers to the fact that, for the defence to succeed, the mistake must be a mistake of fact and that ignorance of the law is no excuse. Accordingly, I am satisfied that the elements of the offence are made out.

22. This brings me next to the question of penalty. In the present case, as I have said, the evidence is that the building as constructed is perfectly appropriate and acceptable. The building as constructed is substantially the same as that for which approval was sought. Development consent has now been granted for its use. Building approval has been granted to complete the building. Moreover, the evidence of Mr Dowsett is that there is no reason why an application for a building certificate should not be granted in due course under s 172 of the Act.

23. These facts suggest that this prosecution is unusual. Most prosecutions of this nature are brought where the unlawfully erected building is one which is entirely unsatisfactory and which ought to be demolished. No proceedings were brought by the Council in class 4 of this Court's jurisdiction seeking the demolition of the building. One must ask: What is the purpose served by this proceeding? It would seem that it serves very little purpose at all. Here we have an entirely appropriate building; one which is acknowledged as being satisfactory; one which has now been the subject of a development consent for its use and the subject of a building approval for its completion.

24. There is also the fact that the Council was aware that there was some urgency in the need for the erection of the building. There is the somewhat inordinate delay on the part of the Council in its processing of what is a simple and uneventful development application and building application. It seems extraordinary to me that delays of this order have been allowed to occur in the determination of an uncontroversial development application and building application. Accepting the fact that the application was lodged on 19 December 1997and that the ensuing month is one notorious for its general inactivity, one would have normally expected the Council to have dealt with the application by the end of February 1998 at the very latest. I am unable to understand why it did not do so. Indeed, I am unable to understand why it did not do so by the end of the following month, that is by the end of March 1998.

25. In all the circumstances I am therefore inclined to exercise my discretion under s 556A of the Crimes Act 1900. Accordingly the formal order of the Court is:

26. The offence is found proved but pursuant to s 556A of the Crimes Act 1900, as amended, without proceeding to conviction, the charge is dismissed.

(COUNSEL ADDRESSED ON COSTS)

27. HIS HONOUR: In my view because costs could have been reduced if there had been a plea of guilty, there should be some order for costs. However, having regard to the reasons to which I have referred in coming to my decision in the principal proceedings, I am of the view that there should be an order that the defendant should pay half the prosecutor's costs. Accordingly, I order the defendant to pay the prosecutor's costs in the sum of $7,000.00, being half of the costs sought.

ANDERSON: I am instructed to request time to pay of 14 days.

GIBB: Your Honour my understanding was that the agreed figure was agreed on the basis that we got an order for costs. In the light of your Honour's decision it wasn't an agreement that if your Honour made an order other than an order for costs, that it would be a different figure. Perhaps we can get some further instructions on that your Honour but in the absence of a figure being agreed, your Honour under the amended section would simply make an order in the terms of the section and it would have to be worked out. That is s 52(2) your Honour.

I now have some further instructions and they are not to resist the order that your Honour proposes.

HIS HONOUR: The order will therefore stand. The exhibits may be returned.

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