North Sydney Council v Littlemore - [2003] NSWLEC 336

Land and Environment Court

of New South Wales

CITATION: North Sydney Council v Littlemore [2003] NSWLEC 336

PARTIES: North Sydney Council (Prosecutor)
David Anthony Lidwell Littlemore (Defendant)

FILE NUMBER(S): 50064 of 2003

CORAM: McClellan CJ

KEY ISSUES: Development Consent :- Non-compliance with conditions
Condition relating to drainage would cause significant delay to work
Architect commenced building work prior to issue of construction certificate
Problem capable of simple solution by amending relevant condition
No person benefit to defendant in non-compliance
Appropriate not to record conviction pursuant to s 10 Crimes (Sentencing Procedure) Act 1999

LEGISLATION CITED: Environmental Planning and Assessment Act 1979
Crimes Sentencing Procedure Act 1999

CASES CITED: Willoughby City Council v Bechara [2003] 124 LGERA 416

DATES OF HEARING: 5 November 2003

EX TEMPORE
JUDGMENT DATE :
11/05/2003

LEGAL REPRESENTATIVES:
A Galasso (Barrister - Prosecutor)
Corrs Chambers Westgarth (Solicitor - Prosecutor)
R W Hood (Barrister - Def)
Pike Pike & Fenwick (Solicitors - Def)

JUDGMENT:

IN THE LAND AND

ENVIRONMENT COURT

OF NEW SOUTH WALES

50064/03

McCLELLAN J

NORTH SYDNEY COUNCIL

LITTLEMORE

Defendant

Judgment

1 HIS HONOUR: The defendant has pleaded guilty to a breach of s 81A(2) of the Environmental Planning and Assessment Act 1979. The offence was committed when he allowed building work to proceed for the erection of a dwelling house on land known as 28 Lodge Road, Cremorne, without a construction certificate having been issued. The defendant is an architect and was responsible for the design and supervision of the construction of the dwelling for his client.

2 Development consent for the building was granted by the council on 3 July 2002. It is common for development consents to be granted with numerous conditions. The instant consent is no exception. Section C contains conditions requiring subsidiary matters to be completed to the satisfaction of the council or accredited certifier prior to the issue of a construction certificate. The consent operated so that those matters must be completed before the certificate could issue and building work commence.

3 Condition C(9) related to stormwater drainage. As I understand the position, the land had a fall to its eastern boundary and then fell to the north where there was a form of natural watercourse. The only effective means of removing water from the site was by collecting it and taking it down the path of the watercourse. This required the water to be carried through a neighbour’s property, necessitating an easement for that purpose. At the time the development consent was issued, there was no easement.

4 Condition C(9) relevantly provided:

“Plans indicating all engineering details relevant to the site regarding the collection and disposal of stormwater from the site, buildings and adjacent catchments shall be submitted for approval with the construction certificate. Stormwater shall be conveyed by gravity, not a charge system, from the site to the nearest council stormwater drainage system unless otherwise specified by council.

As the natural fall of the land is towards the rear of the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2003] NSWLEC 336
Decision Date: 11/05/2003

CaseChat Overview and Summary

In North Sydney Council v Littlemore, the defendant, David Anthony Lidwell Littlemore, an architect, pleaded guilty to a charge under section 81A(2) of the Environmental Planning and Assessment Act 1979 for commencing building work without a construction certificate. The case was heard in the Land and Environment Court of New South Wales by McClellan CJ. The primary legal issue revolved around whether the defendant, who was responsible for the design and supervision of the construction, could be held accountable for the non-compliance with a condition related to stormwater drainage that caused a significant delay to the work.

The court examined the circumstances under which the defendant allowed the building work to proceed without the required construction certificate. The defendant had been aware of the condition imposed by the council but chose not to comply, believing that the condition would delay the project significantly. The court noted that a simple solution to the problem was available through modifying the condition, which the defendant did not pursue until after the work had already started. The court also took into account the defendant's professional background, his unblemished record, and the absence of personal benefit derived from his actions.

The court found that the defendant's actions, while in breach of the planning laws, were not driven by personal gain. Instead, the defendant was managing a practical problem that had a straightforward resolution. The court also highlighted the importance of professionals adhering to statutory obligations to ensure the effective functioning of the planning system. Ultimately, the court decided not to record a conviction, considering the defendant's circumstances and the potential deterrent effect of the financial penalty and reputational damage. Instead, the court ordered the defendant to pay the council’s costs as agreed or assessed.

Orders