North Sydney Council v Moline; North Sydney Council v Tomkinson (No 2) - [2008] NSWLEC 169

No judgment structure available for this case.

Land and Environment Court

of New South Wales

CITATION: North Sydney Council v Moline; North Sydney Council v Tomkinson (No 2) [2008] NSWLEC 169

PARTIES:
50007 of 2007
PROSECUTOR
North Sydney Council
DEFENDANT
James Moline
50008 of 2007
PROSECUTOR
North Sydney Council
DEFENDANT
Alan Tomkinson

FILE NUMBER(S): 50007; 50008 of 2007

CORAM: Preston CJ

KEY ISSUES: Prosecution :- carrying out development not in accordance with development consent - whether each accused proven to be a person who so carried out such development

LEGISLATION CITED: Environmental Planning and Assessment Act 1979 s 76A, s 96(1A), s 125
Home Building Act 1989 s 7A

CASES CITED: Ashfield Municipal Council v Andrews (1986) 60 LGRA 248
Canterbury City Council v Saad (2000) 112 LGERA 107
Colonial Mutual Life Assurance Society Ltd v Producers and Citizens Co-operative Assurance Co of Australia Ltd (1931) 46 CLR 41
Environment Protection Authority v McConnell Dowell Constructors (Aust) Pty Ltd (2003) 128 LGERA 240
Environment Protection Authority v Multiplex Constructions Pty Ltd (2000) 112 LGERA 1
Hillpalm Pty Ltd v Heaven’s Door Pty Ltd (2004) 220 CLR 472
Power v Penthill House Pty Ltd (1993) 80 LGERA 247
Progress & Securities Building Pty Ltd v Burwood Council & Anor (No 2) [2008] NSWLEC 135 (11 April 2008)
Rao v Canterbury City Council (2000) 112 LGERA 360
Sharp v Hunters Hill Council (2002) 120 LGERA 155
Shepherd v The Queen (1990) 170 CLR 573
Wilkie v Blacktown City Council (2002) 121 LGERA 444

DATES OF HEARING: 6, 7, 14 and 18 February 2008

DATE OF JUDGMENT:
16 May 2008

LEGAL REPRESENTATIVES:
PROSECUTOR
Mr T Howard (barrister)
SOLICITORS
Maddocks
DEFENDANT - 50007 of 2007
Mr N Pesman (barrister)
SOLICITORS
Day Dockrill
DEFENDANT - 50008 of 2007
Mr J Ayling SC
SOLICITORS
Wilshire Webb Staunton Beattie

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

PRESTON CJ

16 MAY 2008

50007 OF 2007

50008 OF 2007

NORTH SYDNEY COUNCIL V JAMES MOLINE

NORTH SYDNEY COUNCIL V ALAN TOMKINSON

JUDGMENT

1 HIS HONOUR: Mr Alan Tomkinson and Mr James Moline have each been charged with having committed an offence against s 125(1) of the Environmental Planning and Assessment Act 1979 in that each carried out development on land otherwise than in accordance with a development consent which had been obtained and was in force, contrary to s 76A(1)(b) of the Act.

2 Each has pleaded not guilty. By a previous Court order, both proceedings were ordered to be tried at the one hearing and evidence in one proceeding be evidence in the other proceeding. The trial has been held on this basis. The Court must determine whether, on the evidence adduced at the trial, the prosecution has proven each element of the offence, against each defendant, beyond reasonable doubt.

3 For reasons I will give, I find that the prosecution has not discharged the legal onus of proving beyond reasonable doubt all of the elements of the offence against either of the defendants. In particular, the prosecution has not proven beyond reasonable doubt that each of the defendants was a person who, either primarily or vicariously, carried out development that was not in accordance with the development consent that had been obtained and was in force. Accordingly, each defendant must be acquitted and the summons against each of them dismissed.

The offences charged

4 The offence with which Mr Tomkinson is charged is that between about 1 November 2005 and about 13 March 2006 at 120 Ben Boyd Road, Neutral Bay in the State of New South Wales he committed an offence against s 125(1) of the Environmental Planning and Assessment Act1979 in that he did the following thing which was forbidden to be done by s 76A(1)(b) of the Act:

5 The particulars in the summons specify the development to be:

6 The environmental planning instrument is specified to be North Sydney Local Environmental Plan 2001. The development consent is specified to be “Development Consent No D189/05 the subject of Notice of Determination issued by North Sydney Council dated 1 November 2005”.

7 The manner in which the development was carried out not in accordance with conditions of the development consent is particularised in the summons as follows:

“In contravention of condition 1 of the development consent, the development was not carried out in accordance with the approved plans identified in condition 1 in that:

Excavation works were carried out outside the area approved for excavation on the approved plans
The location of the basement walls and a concrete slab did not conform with the approved plans.
A concrete block wall built parallel to the land’s northern boundary was not shown on the approved plans.
The development was carried out such that the building was larger and the setbacks from the boundaries smaller than was approved by way of the approved plans. Further particulars are provided in the affidavit of Long Huynh sworn 20 June 2006. ”

8 The manner of contravention is particularised in the summons as follows:

“At all material times, the defendant was the registered proprietor of the Land and a beneficiary of the development consent. The defendant was responsible for the carrying out of the development. The said development was carried out for and on behalf of the defendant and/or at his direction.”

9 The prosecutor contends that Mr Tomkinson is therefore liable directly, either personally or vicariously.

10 The summons in the proceedings against Mr Moline is in the same terms as that which I have set out above against Mr Alan Tomkinson. Importantly, the manner in which the development was carried out not in accordance with conditions of consent is identical. A difference does occur in the particulars given for the manner of contravention by the defendant. In the summons against Mr Moline, the manner of contravention is stated to be as follows:

“At all material times, the defendant was the registered proprietor of the Land; the applicant for and beneficiary of the development consent; the applicant for the construction certificate issued in respect of the building works authorised under the development consent (No CC2005/040 issued by Fitzgerald Certifiers on 23 November 2005), and the builder named on construction certificate.

The said development was carried out for and on behalf the defendant’s behalf [sic] and/or at his direction”.

11 The prosecutor did not allege that either of the defendants were liable on an accessorial basis, by acting as a secondary participant or accessory, such as by instigating, encouraging or assisting another person (who is the principal offender) to commit the crime. In the prosecutor’s opening at the trial, the prosecutor sought leave to amend the particulars to the summons in each proceedings to add the ground of accessorial liability. I refused leave on the basis that neither the summons nor any affidavit served by the prosecutor on each defendant had put the defendants on notice that one of the ways in which guilt would be sought to be proved would be accessorial liability: contrast Rao v Canterbury City Council (2000) 112 LGERA 360 at 366 [31].

12 Accordingly, the prosecution against each defendant has proceeded on the basis of direct liability, either by the defendant personally carrying out the acts constituting the actus reus of the offence (the unlawful development) or vicariously by the defendant being responsible for the conduct of another person who carried out the acts constituting the actus reus of the offence.

Elements of the offence

13 Section 125(1) of the Act provides:

14 Section 76A(1) of the Act is the relevant provision that is the source, and provides the content, of the prohibition that is alleged to have been offended by the defendants. Section 76A(1) provides:

“If an environmental planning instrument provides that specified development may not be carried out except with development consent, a person must not carry the development out on land to which the provision applies unless:

(a) such a consent has been obtained and is in force, and

15 The elements of the offence are that:

(a) each defendant is a person who;

(b) carried out development;

(c) that an environmental planning instrument provides may not be carried out except with development consent;

16 The actus reus of an offence involves the external elements of the definition of the offence except the fault element or state of mind (mens rea). The offence against s 125 (and s 76A(1)) of the Act defines the external elements of the offence to consist of specified conduct which occurs in specified circumstances, namely the carrying out of development (the specified conduct) otherwise than in accordance with a development consent that has been obtained and is in force if an environmental planning instrument provides that the development may not be carried out except with development consent (the specified circumstances). The offence is, therefore, a type of conduct offence.

17 The definition of the offence against s 125(1) (and s 76A(1)) does not include a fault element or state of mind (mens rea). The offence is one if strict liability: Power v Penthill House Pty Ltd (1993) 80 LGERA 247 at 253; Rao v Canterbury City Council (2000) 112 LGERA 360 at 369 [53]; Canterbury City Council v Saad (2000) 112 LGERA 107 at 116 [33].

18 The defence of honest and reasonable mistake would be available, however, it has not been raised by either defendant in these proceedings.

19 The critical element of the actus reus in these proceedings is whether each of the defendants has been proven to be a person who did the act that constitutes the specified conduct of carrying out the development in the specified circumstances.

20 The actus reus, as a matter of objective fact, is not that development has been carried out on land contrary to the consent that was given for such development and that the person charged bears some specified status in respect of that land (such as owner or occupier) (contrast the offence against s 48(2) of the Protection of the Environment Operations Act 1997).

21 Rather, the actus reus is that the person charged is a person who has carried out development contrary to the consent that was given. A person who does not “carry the development out” cannot be in breach of s 76A(1) and hence cannot commit an offence against s 125(1) of the Act. In the same way, civil enforcement orders can only be made against a person who is actually carrying out development on land in breach of the Act: see Hillpalm Pty Ltd v Heaven’s Door Pty Ltd (2004) 220 CLR 472 at 489 [48]-[49], Wilkie v Blacktown City Council (2002) 121 LGERA 444 at 459 [57]-[60], 460 [62], [66]-[67], and 444 [1], [2] and Progress & Securities Building Pty Ltd v Burwood Council & Anor (No 2) [2008] NSWLEC 135 (11 April 2008) at [29].

22 Hence, by itself, the mere fact that a person is an owner of land on which development that breaches the Act has been carried out is not sufficient to make that person a person who carries out a development on the land; some participation in or express authorisation of the acts constituting the carrying out of a development is required: see Ashfield Municipal Council v Andrews (1986) 60 LGRA 248 at 252, 253; Wilkie v Blacktown City Council (2002) 121 LGERA 444 at 458 [54], 459 [59], 460 [62].

23 Development under the Act can involve different acts: see definition of “development” in s 4(1) of the Act. In these proceedings, the development the subject of the charges involved the carrying out of works (excavation) and the erection of a building (including the pouring of a concrete slab and erection of walls) not in accordance with the development consent given.

24 To “carry out” such development, positive acts are required; omission to act cannot suffice. A person could carry out such development by personally doing the positive acts involved, such as carrying out the excavation or pouring the concrete slab or erecting the walls. The person could also be attributed with having carried out such development by being responsible for the conduct of another person who did the positive acts of excavation, pouring of the concrete slab or erection of the walls.

Development was carried out otherwise than in accordance with the consent given

25 The evidence establishes beyond reasonable doubt each of the elements (b), (c) and (d), that is to say, that development of a type which an environmental planning instrument provides may not be carried out on the land except with development consent, was carried out on the land otherwise than in accordance with a development consent that had been obtained and that was in force.

26 The evidence of Ms Amy Young, a compliance officer with North Sydney Council, establishes that the land was zoned Residential B under North Sydney Local Environmental Plan 2001. In that zone, development for the purpose of attached dwellings (the relevant purpose of the subject development) could only be carried out with development consent (cl 10).

27 In or about late April 2005, Mr Moline lodged with the Council a development application to carry out the development of demolition of the existing house and construction and subsequent use of three attached dwellings. At that time, the defendants were not shown to be the owners of the land (other persons provided owners’ consent for the development application). Development consent was not granted by the Council until 1 November 2005. The consent was subject to a number of conditions. Condition A1 of the development consent required the development to be carried out in accordance with the drawings specified therein.

28 The drawings specified that the northern face of the northern wall of the building containing the three attached dwellings was to be “4050 mm" from the northern boundary. This dimension is shown in each of the drawings DA/01 basement car parking, DA/02 ground floor plan, and DA/03 first floor plan. The short section BB in DA/08 confirms that the outer face of the wall on each of the basement, ground floor and first floor align. At the ground level immediately outside the outer face of the building are paved courtyards. No excavation is depicted underneath the courtyards.

29 DA/10, the erosion and sediment control plan, also shows the outline of the building (within which the words “area of excavation” occur) as being setback at its northern face “4050 mm” from the northern boundary.

30 None of the approved plans show the basement with two parallel walls on the northern side, linked by return walls, creating storerooms or void spaces.

31 The evidence of Mr Long Huynh, the Team Leader-Building Compliance at the Council, establishes that excavation and building works were carried out after the grant of development consent on 1 November 2005 through to at least 13 March 2006 which were not in accordance with these approved drawings and, hence, condition A1 of the consent. In particular, Mr Huynh’s evidence is as follows.

32 On 24 November 2005, Mr Huynh observed excavation up to approximately two metres from the northern boundary of the site, such excavation being confirmed by photographs taken at the time of his inspection.

33 On 20 December 2005, Mr Huynh observed excavation up to approximately two metres from the northern boundary, such excavation again being confirmed by photographs taken at the time of his inspection.

34 On 14 February 2006, Mr Huynh observed building works including the erection of two concrete block walls, each parallel to the other and parallel to the northern boundary. The outer or northern most wall was measured as being approximately two metres from the northern boundary and the inner wall was measured as being approximately 3.5 metres from the northern boundary. The measurement was done using a measuring tape with Mr Dean Tomkinson, Mr Alan Tomkinson’s son, who was on site reading the tape and calling the measurements to Mr Huynh who recorded them.

35 In between the two walls, a concrete slab had been poured. Steel starter bars protruded at intervals along the slab. The inner wall had openings permitting access to the space between the walls from the car park area. Mr Huynh took photographs at the time of his visit of these building works.

36 Other evidence is corroborative that excavation and building works were carried out on the site not in accordance with the approved plans and condition A1 of the development consent.

37 On 5 November 2005, application was made pursuant to s 96 of the Environmental Planning and Assessment Act1979 to modify the development consent that had been granted on 1 November 2005 by enlarging the basement car park by moving the northern wall two metres to the north so that the northern face of the wall would be 2,050 millimetres from the northern boundary.

38 On 1 December 2005, Mr Moline, the defendant in proceedings 50007 of 2007, wrote to the Council stating:

“We advise that in accordance with your suggestion, we have stopped any further excavation to the western section of the basement, so that it will not be considered to be an over excavation when the variation is approved.”

39 In the Council officer’s report on the s 96 application to the Council meeting of 12 December 2005, it is noted that:

“The excavations have been undertaken in accordance with the basement design for which approval is sought under the s 96 application rather than the design for which approval has been granted.”

40 The Council resolved on 12 December 2005 to refuse the s 96 application.

41 A plan showing “grid setout on basement slab” prepared by K H Zeggelink & Associates Pty Ltd, consulting surveyors, said to be prepared for “Moline Associates Architects and Dean Thomkinson” [sic], dated 5 February 2006, shows the basement slab as being “3.69 m” from the northern boundary.

42 On 10 January 2006, Mr Owen Haviland, architect, produced an architectural drawing, the basement floor plan, for the development. The client is stated to be “Mr Alan Tomkinson”. The basement floor plan shows the outer face of the northern wall of the basement to be “2,050 mm” from the northern boundary. An internal wall, parallel to the outer wall, is shown 3,690 mm (2,050 mm plus 1,640 mm) from the northern boundary. Between the two parallel walls, four stores are shown, separated from each other by short, internal, north-south running walls. Openings are shown to access the stores from the car park area.

43 On 14 February 2006, during the inspection by Mr Huynh of the site, Mr Huynh discussed with Mr Dean Tomkinson the two walls and the void between. As I have noted, Mr Dean Tomkinson and Mr Huynh measured the distance of these walls from the northern boundary. The statements by Mr Dean Tomkinson at the time corroborates the observations of Mr Huynh concerning the erection of the two walls and the void in between as being in variance to the approved plans, although Mr Dean Tomkinson said that they were in accordance with other plans, being “his engineer’s drawings”. In fact, the excavation and building works were consistent with Mr Owen Haviland’s basement floor plan of 10 January 2006.

44 Correspondence from Mr J Harrison, an engineering consultant engaged on the development project, to the Council dated 16 February 2006, states that the Council was aware of the “excavation work consistent with a s 96 application lodged with the Council at that time”. The letter continued:

“The Section 96 application was to enlarge the garage area of the building to facilitate car parking. The proposal would not have affected the external appearance of the building as it was contained under the rear ground floor patio slabs.

When, unfortunately, the section 96 application was refused the structure required support on the perimeter of the patio slabs and the internal wall was constructed in accordance with the approved plans. Even without the additional excavation it would have been necessary to construct some form of footing and support to the patio slab which would have been founded on rock. This has created the void in question and access was required to this area in order for the formwork of the ground floor slab to be constructed and later removed. It is also prudent to provide access to this area should future maintenance be required.

As it stands the work carried out has involved the owner in considerable expense in excavation and tipping of the soil and rock and the construction of a fully reinforced concrete block retaining wall. Again this work will have no visible impact to the exterior of the building which will comply with the original approved plans.”

45 On 21 March 2006, Mr Owen Haviland, the architect engaged for the client described as Mr Alan Tomkinson, wrote to the Council’s solicitors submitting for consideration a “solution” to “hopefully overcome Council’s concerns”:

“1. Demolish existing northern block wall down to rock levels as shown on Architectural cross section and marked in green slashes on Engineers documentation.

2. Demolish existing block wall as marked in pink on Engineers documents.

46 On 23 May 2006, a further s 96 application was lodged with the Council seeking to modify the development in various ways and extending the northern wall 360 millimetres closer to the northern boundary. The Council officer’s report on the application noted that:

“The modification application seeks retrospective approval for some minor excavation works to the north, east and south building alignment. As set out above, Council’s Compliance Team have identified that the excavation at basement level undertaken without development consent is an area of approximately 2m north of the approved basement wall along its full width. The current s 96 modification seeks consent for an extension of the basement 360mm to the north of the approved building line along the basement’s width. Therefore, should the modification application be approved as proposed, there would remain a substantial proportion of unauthorised excavation north of the approved basement building line.

It is considered in order to facilitate and support the proposed works, a condition of consent is recommended to be imposed to require the applicant to infill this area illegally excavation [sic] with clean fill. This will facilitate also the construction of the approved courtyards approved in this area north of the building line, in accordance with the terms of this development consent.”

47 The Council resolved to approve the s 96 modification and it was granted on 14 August 2006. Condition A1 was replaced so as to refer to the new plans which showed the setback of the northern basement wall from the northern boundary to be 3,690mm, instead of the formerly approved 4,050mm. A new condition E18 was imposed stating:

“Upon completion of the basement walls, the applicant shall infill that area north of the approved basement boundary, with clean fill. The resulting ground level shall be reinstated to approximately that of the ground level prior to excavation, having an RL of 80.4.”

48 This evidence establishes beyond reasonable doubt that development was carried out not in accordance with the development consent given, in the relevant period, in breach of s 76A(1) and s 125(1) of the Environmental Planning and Assessment Act1979.

49 In particular, the evidence establishes that an area was excavated northwards of the outer face of the northern basement wall (shown to be 4,050mm from the boundary) to within approximately 2m of the northern boundary. The carrying out of this excavation was not consistent with the approved plans the subject of the original consent. The building proposed and approved by the original development consent did not require excavation to within two metres of the northern boundary. The outermost wall was 4,050mm from the northern boundary. The erosion and sediment control plan shows the area of excavation to be within the building envelope which is depicted as being 4,050mm from the northern boundary.

50 More importantly, however, the northern courtyards at ground level on the northern side of each of the attached dwellings are shown as being constructed on natural or existing ground and do not have either an excavation or void underneath them, or piers or other supports for the courtyard slabs. This is evident in the ground floor plan DA/02, the north elevation in DA/06, the east and west elevations in DA/07, the long section AA and the short section BB in DA/08 and the amended landscape plan DA/09. Any excavation under each of the courtyards would not enable the construction of the courtyards in accordance with these plans.

51 Further, the stormwater drainage concept plan shows drainage lines with invert levels at 80.10, 80.23 and 80.35, immediately to the north of the outer face of the northern wall of the building. Short section BB in DA/08 shows the ground level at this point to be 80.5 and the basement level to be 77.9. There is, therefore, no excavation to basement level underneath the drainage lines which are on the surface at ground level immediately outside the northern face of the building where the courtyards are located.

52 Within the void created by the excavation, two walls were built: an outer northern wall being approximately two metres from the northern boundary and an inner wall being approximately 3.5 metres from the boundary. In between the walls, a slab had been poured. Openings in the inner wall allowed access from the car park area to the space between the two walls. Steel starter bars appeared in lines at intervals corresponding with each opening. The works are consistent with the walls and structures shown in the Owen Haviland basement floor plan dated 10 January 2006 and the engineering drawings. These excavation and building works are not in accordance with the approved plans.

Defendants not proven to be persons who carried out the unlawful development

53 The determinative issue, however, is whether the evidence establishes that each of the defendants is a person who carried out this unlawful development in breach of s 76A(1).

54 I will deal with the evidence against each defendant separately. In each case, the two critical aspects of the unlawful development are the over-excavation and the building work of the extended concrete slab, the translocated external wall and the additional internal walls, and the steel starter bars for the additional return walls. The question is whether the evidence establishes beyond reasonable doubt that each defendant carried out that unlawful development.

55 As will become clear in the summary of the evidence below, there is a lacuna in the evidence as to the person or persons who did the actual physical work involved that constitutes the over-excavation and the building works not in accordance with the development consent. The prosecution did not call any evidence from any person who carried out work on the site, including Mr Howard Jack who was a contractor who carried out excavation on the site or any person observed by the Council officers to be carrying out building work such as pouring the concrete slab or erecting the walls. The prosecution did not call Mr Dean Tomkinson who was said to be a site supervisor and who was on-site when the Council officers visited. The prosecution also did not adduce any evidence of any agreements, including building contracts, with any person to carry out any work on the site or any evidence of payments to any person for any work carried out on the site.

56 The prosecution’s case that each defendant carried out the unlawful development is largely circumstantial. The prosecution does, however, seek to rely in the proceedings on statements made by the defendants and by Mr Dean Tomkinson which are said to be admissions. I will deal with that submission when I address the evidence in relation to Mr Tomkinson.

Mr Moline

The evidence in relation to Mr Moline’s involvement

57 Mr Moline is a qualified architect. He has held a Builders Licence in New South Wales periodically since 1988.

58 In December 2004, Mr Moline, together with Mr Alan Tomkinson and his wife, Mrs Ruby Tomkinson, entered into a contract to purchase the subject land as tenants in common in equal shares. The contract was originally to be completed on 8 March 2005, although an extension had been sought. The evidence does not establish the date of completion. I note that in May 2005, the vendors were still shown as the owners of the land when Mr Moline lodged the development application. However, the contract of sale must have been completed by November 2005 as in documents at this time Mr Moline described himself and Mr and Mrs Tomkinson as owners of the land.

59 Also in December 2004, Mr Moline and Mr and Mrs Tomkinson entered into an agreement to purchase the land and to construct on the land a development in accordance with the necessary consents. The agreement specified the parties’ respective equity contributions and contributions to project costs. In the event that the Council approved a residential development of three townhouses, the parties agreed to strata title the townhouses and each party would be allocated one townhouse.

60 During February 2005, Mr Moline prepared the architectural drawings and the development application. He lodged the development application with the Council in late April 2005. Prior to this time, he held the usual pre-development application meetings and consultations with officers of the Council. Mr and Mrs Tomkinson did not have any involvement in those meetings.

61 After lodgement of the development application, Mr Moline engaged in the usual process of clarification and amendment to satisfy the queries of council officers. The development consent was granted by the Council on 1 November 2005.

62 On the same day, Mr Moline arranged for the issue of the Home Warranty Certificates of Insurance for each of the prospective townhouses, as required by the Home Building Act 1989. The Certificates were issued to Mr Moline.

63 On 2 November 2005, Mr Moline gave the architectural documentation necessary for the issue of a Construction Certificate to Paul Fitzgerald Certifiers. This included a form of appointment of Mr Fitzgerald as the Principal Certifying Authority (PCA). Mr Moline completed the details on the form, including nominating himself as the Builder and quoting his Builder’s Licence Number, and signed for each of the owners.

64 Mr Moline’s evidence, which was not challenged, is that he did not have any involvement with the engineer’s specifications for the issue of the Construction Certificate. The engineer was Mr J Harrison of J Harrison Engineering Pty Ltd. Mr Harrison’s Structural Detail Drawing bearing an original date of 22 November 2005, states the client to be “Mr A Tompkinson” [sic].

65 On 7 November 2005, Mr Moline lodged with the Council an application under s 96(1A) of the Act to modify the development consent to enlarge the basement car park by extending it two metres towards the northern boundary. Mr Moline prepared the s 96 application including drawing the amended plans and writing the statement that accompanied the s 96 application. Amended plans were submitted to the Council on 30 November 2005. The Council resolved on 12 December 2005 to refuse the s 96 application.

66 On 21 November 2005, Mr Fitzgerald as the PCA issued the Construction Certificate. He specified in the Notice to Commence Work that the earliest date building work could commence was 23 November 2005. The Council received the package of documents including the Construction Certificate and notices and certificates from Mr Fitzgerald on 23 November 2005.

67 In late October or early November 2005, Mr Moline presented to Mr Alan Tomkinson, a draft MBA Building Contract which Mr Moline had prepared. The draft contract nominated Mr Moline and Mr and Mrs Tomkinson as proprietors and Mr Moline as the builder. Mr Tomkinson refused to sign the draft contract. Mr and Mrs Tomkinson did not at any time enter into a contract in writing with Mr Moline appointing him as the builder to do the residential building work for the development.

68 Under s 7A of the Home Building Act 1989, it is an offence for a person to contract to do residential building work or specialist work, under a contract unless the requirements of s 7 of the Act in relation to the contract are complied with. Section 7 required, amongst other things, that the contract must be in writing and dated and signed by each of the parties. Under s 10(1), a person who contracts to do any residential building work or any specialist work and who so contracts under a contract to which the requirements of s 7 apply that is not in writing, amongst other contraventions, is not entitled to damages or to enforce any other remedy in respect of a breach of the contract committed by the other party to the contract and the contract is unenforceable by the person who contracted to do the work.

69 The consequence, therefore, of Mr and Mrs Tomkinson not entering into a contract in writing in accordance with s 7 of the Home Building Act 1989, with Mr Moline for him to do the building work on the development, is that Mr Moline never was appointed as the lawful builder and had no enforceable rights to do the building work.

70 Mr Moline’s evidence is that he did not provide services as a project manager and did not project manage the carrying out of the development. He did provide services as an architect. He was also an owner. He said he did not act as a builder in accordance with the unsigned contract.

71 Mr Moline in oral evidence stated that he had agreed, presumably with Mr and Mrs Tomkinson, that Mr Dean Tomkinson was to be the site foreman on the project. However, Mr Moline did not enter into any contract with Mr Dean Tomkinson engaging him as site foreman. He also did not engage Mr Dean Tomkinson to be the builder.

72 Mr Moline said that in early November 2005, a security fence was erected around the site. Mr Moline had ordered the fence but did not erect it. He asked Mr Alan Tomkinson for a key to the padlock on the gate in the fence but was told “It’s not necessary. Dean is always here”.

73 Demolition of the existing house commenced in late October 2005. Mr Dean Tomkinson was on site on 28 October 2005 when Ms Amy Young of the Council inspected the site and observed some demolition had already been undertaken. This work is not the subject of the charges. After the issue of development consent on 1 November 2005, demolition work recommenced. Mr Moline said he was told by Mr Alan Tomkinson that the person who removed the asbestos as part of the demolition was a “mate” of Mr Dean Tomkinson.

74 Mr Moline said he attended the site on 4 November 2005 and said to Mr Dean Tomkinson he would arrange, and he did arrange, for the delivery of hay bales and geofabric. Mr Dean Tomkinson said he would install them. Mr Moline again attended the site on 7 November 2005 and took dilapidation photos of the footpath and kerbs. The hay bales Mr Moline had ordered were delivered to the site on 7 November 2005. Mr Moline did not install the hay bales or other sediment controls.

75 Mr Moline said on the three or four occasions he visited the site during November 2005, he observed demolition and excavation work. He said he told Mr Alan Tomkinson that he should not carry out any work until the Construction Certificate had been issued. Mr Tomkinson replied that “I’ve been delayed too long already. Demolition and excavation are not considered construction and therefore I can carry it out without a Construction Certificate”. (I note there is some legal support for this statement: see Sharp v Hunters Hill Council (2002) 120 LGERA 155).

76 On 15 November 2005, Mr Moline attended the site and marked out on the boundary fences the set outs showing the alignment of the proposed building’s external walls. This set out was in accordance with the development consent plans. Following this marking out, Mr Moline had a conversation with Messrs Alan and Dean Tomkinson. At this time, there had not been excavation to the alignment of the proposed building’s external walls.

77 Sometime after 15 November 2005, Mr Moline visited the site and observed excavation being performed by a contractor. He did not know who he was but later learnt he was Mr Howard Jack. Mr Moline’s evidence, which was not challenged, was that he did not engage Mr Jack as contractor and that he did not give either Mr Alan Tomkinson or Mr Dean Tomkinson approval that Mr Jack be engaged as contractor. The excavation that had been carried out did not conform with the original development consent. Mr Moline said it appeared to him that the contractor had excavated beyond the external walls Mr Moline had marked out.

78 At this time, Mr Moline had a conversation with Messrs Alan and Dean Tomkinson in which he said “We can’t excavate beyond what’s approved until we know the Section 96 is approved” and “You need to wait for the approval. It looks like Mark Schofield [of the Council] will recommend the Section 96 for approval. But we can only excavate what’s currently approved”. Mr Moline says that Mr Alan Tomkinson said “I’m not waiting”.

79 On 22 November 2005, Mr Moline wrote a letter to the Council requesting the withdrawal of a “fine for failure to water the excavation” that had been issued by the Council after Mr Perry of the Council had visited the site on 17 November 2005. Mr Moline said he had a telephone call, possibly on 29 November 2005, from the excavator, Mr Howard Jack, regarding the use of water to damp down dust. Mr Moline said he had a conversation with Mr Jack and Mr Dean Tomkinson about this time in which Mr Moline said “Council is insisting water must be used to control the dust” and “It’s compulsory and perhaps you should use a sprinkler”. Mr Dean Tomkinson was dismissive of the advice.

80 On 24 November 2005, Mr Jack was observed excavating on the site by Mr Huynh and Mr Perry, both Council officers. Mr Huynh considered the excavation to be outside the area approved on the plans. Mr Jack advised that “Dean”, Mr Dean Tomkinson, was the supervisor. Mr Huynh and Mr Perry had a conversation with Mr Dean Tomkinson and then Mr Huynh had a telephone conversation with Mr Alan Tomkinson. In neither conversation was Mr Moline identified as having carried out the excavation or directed it. The only reference to Mr Moline was by Mr Alan Tomkinson who said in response to Mr Huynh’s question “Who is responsible for all the works on this site?”, “Technically Mr James Moline is the official builder, but I own this land so the bottom line is me”.

81 Mr Moline was not present on the site at the time of this visit by Mr Huynh and Mr Perry. However, later that day Mr Alan Tomkinson met Mr Moline at his office and Mr Moline said he told Mr Tomkinson “we can only excavate in accordance with the current consent and for access to build the walls”.

82 At the end of November 2005, Mr Alan Tomkinson and Mr Dean Tomkinson attended Mr Moline’s office. Mr Alan Tomkinson requested Mr Moline give him “all invoices, receipts, cheque deposit books and other correspondence for our joint account”. Mr Moline complied with the request.

83 On 1 December 2005, Mr Moline said he had a telephone conversation with Mr Alan Tomkinson in which he repeated what Mr Mark Schofield of the Council had told Mr Moline, namely “do not carry out any further excavation to the western end of the site, as it would constitute over-excavation when the Section 96 is approved”.

84 On 2 December 2005, K R Zeggelink and Associates, surveyors, prepared a “Plan showing part grid setout in partly excavated site”. That grid setout was said to be prepared for “Moline Associates Architects & Allen Thomkinson” [sic]. The dimensions were said to be “adopted from Moline Associates Architects Drawing No.: WD/01 revision 01 as provided on 15 November 2005”.

85 Mr Moline said, although he had instructed Mr Zeggelink to do the original survey in 2004 for the purposes of the development application, he did not instruct Mr Zeggelink in 2005 to prepare a grid set out or otherwise. Mr Moline also said he did not personally provide Mr Zeggelink any drawing on 15 November 2005 or any other time. Mr Moline does say, however, he would have issued a drawing bearing a revision date of 15 November 2005, showing the basement car parking wall 2050 mm from the northern boundary, to Mr Alan Tomkinson. That document is the document that Mr Zeggelink used to prepare his grid setout plan dated 2 December 2005. The basement of the building shown in Mr Moline’s drawing of 15 November 2005 differed from the original consent. No construction took place in accordance with this drawing and it was superseded by subsequent events.

86 On 20 December 2005, Mr Huynh and Mr Perry from the Council again inspect the site and observed the over-excavation. No building work had commenced by this date.

87 In the week before Christmas 2005, Mr Moline drew building setout drawings. These differed from the development consent in a number of respects. The differences need not be detailed as no development was carried out in accordance with these setout drawings. Afterwards, Mr Moline spoke on the telephone with Mr Dean Tomkinson to ask where he should deliver the drawings. Mr Dean Tomkinson told Mr Moline that “We are in Queensland for the holidays, leave them [the setout drawings] on the garbage tin lid inside the laundry at home”. Mr Moline delivered the setout drawings to Mr Alan Tomkinson’s home.

88 Mr Moline himself then went on holidays.

89 On 29 December 2005, Mr Moline said that Mr Zeggelink telephoned Mr Moline while Mr Moline was on holidays. Mr Zeggelink said that “the building won’t fit on the site, the dimensions don’t add up”. Mr Moline asked whether he had Mr Moline’s latest drawing which corrected some of the miscalculations of the DA drawings. Mr Zeggerlink replied “I’ve got a set of drawings here with Havilland Architects written on them”. Mr Zeggerlink said he had been given those drawings by Mr Alan Tomkinson and told to set out the building.

90 Mr Moline said that he then immediately telephoned Mr Alan Tomkinson and a conversation followed:

“JM said: What is going on and why has another architect done work on this Project without my knowledge?

AT said: You were effectively sacked from the project as you were too busy and unable to continue with the plans so I got Owen Havilland to do them.

JM said: There is no way I’m party to this. There is no way I’m paying another architect to do work.”

91 On 9 January 2006, Mr Moline telephoned Mr Tomkinson and requested a meeting. Mr Moline said he would return to Sydney from holidays. Mr Moline met with Mr Alan Tomkinson in Mr Moline’s office. In the meeting, Mr Moline said that “Owen Havilland should not have anything to do with this project”. Mr Tomkinson replied that “It is up to me to make these decisions and I’ll make them. You may technically be the architect and builder but it’s my site. I’ve put a million dollars into this deal. You have got no say in it”.

92 On 10 January 2006, Mr Owen Havilland of Havilland Architects, prepared a basement floor plan showing a revised basement. The northern external wall of the basement had moved to 2050 mm from the northern boundary. It was 200 mm thick. Parallel to this external wall was an internal wall, also 200 mm thick, set back 3690 mm from the northern boundary. Between the external and internal walls were three return walls, creating four rooms described as “store”. There was an entrance to each store from the basement carpark. Mr Havilland’s basement floor plan described the client as “Mr Alan Tompkinson” [sic].

93 Mr Moline said that he did not instruct Havilland Architects to prepare the drawings and he did not authorise Mr Alan Tomkinson to instruct Havilland Architects to prepare the drawings.

94 Afterwards in January 2006, Mr Moline was on holidays. He returned on 24 January 2006. Mr Moline said he met Mr Alan Tomkinson on 27 January 2006.

95 Mr Moline said he wished to discuss with Mr Tomkinson “our deteriorating relationship and the unauthorised works”. Mr Moline said he told Mr Tomkinson that work on the walls shown on Mr Havilland’s drawings “is illegal” and that “You are not to construct the north wall shown on Havilland’s drawings”. Mr Moline said that Mr Tomkinson replied “I refuse to accept your advice. It’s my building and my architect says he will have it approved as storerooms. I have instructed Havilland to lodge a Section 96 showing the storerooms”.

96 On 31 January 2006, Mr Moline again met in his office with Mr Tomkinson. Mr Moline handed Mr Tomkinson an agenda of matters to be discussed. This included design decisions with respect to Havilland Architects and what was their brief. Mr Moline said that he told Mr Tomkinson “We have to agree on a chain of command as to how this is to be built. We have to sort out who is making the decisions”. Mr Moline said Mr Tomkinson glanced at the Agenda, took a call on his mobile, wrote two telephone numbers on the Agenda, threw it back at Mr Moline and walked out.

97 On 1 February 2006, Mr Moline wrote a letter on his letterhead addressed “To whom it may concern”. The letter stated as follows:

TO WHOM IT MAY CONCERN

120 BEN BOYD ROAD NEUTRAL BAY

(

James Moline has withdrawn his services and any/all responsibility for any building work that has or will proceed from that time, and which includes any/all work that does or does not comply with the current Consent on this property.

Signed

James Moline”

98 Mr Moline said he faxed this letter to Mr Alan Tomkinson and also faxed and emailed the letter to the Council. Mr Moline was cross-examined by both Counsel for the prosecution and Senior Counsel for Mr Tomkinson about the date on which Mr Moline sent the letter to Mr Tomkinson and the Council. It was put to him that he did not send the letter on 1 February 2006 but instead did not send it until 24 February 2006. However, Mr Moline was steadfast in stating that it was sent on 1 February 2006.

99 Mr Moline said he visited the site on 3 February 2006 but Mr Alan Tomkinson refused to talk to him.

100 On 5 February 2006, Mr Zeggelink produced another “Plan showing grid setout on basement slab”. This plan was described as having “Dimensions adopted from Moline Associates Architects Drawing No: ? (A3 Photocopy) as provided on 29/12/2005”. This appears to be a reference to the drawings Mr Moline left at Mr Alan Tomkinson’s house on 29 December 2005 to be collected by Mr Dean Tomkinson. The plan is described as having been prepared for “Moline Associates Architects & Dean Thomkinson” (sic). As noted earlier, Mr Moline said he never instructed Mr Zeggelink to prepare any grid setout plan. In any event, no construction was carried out in accordance with this setout plan.

101 On 9 February 2006, Mr Alan Tomkinson attended Mr Moline’s office and gave him a drawing prepared by Mr Havilland. This drawing was described as “Basement Floor Plan”. It bore the same date, “10-01-06”, as the drawing of Havilland Architects given to Mr Moline on 27 January 2006. It showed the same configuration of external and internal walls with four rooms as in that other drawing. The dimensions of these walls and rooms were also the same. However, the rooms were no longer described as “store” but rather as “sub-floor foundation space”.

102 Mr Moline said he had a conversation with Mr Tomkinson concerning the storerooms to the following effect:

“AT said: If store rooms can’t be approved then sub-floor foundation space would not be defined as a structure.

JM said: There is no way you will get anything approved beyond the original Consent. If you build it will be illegal work. I can’t believe you’re suggesting it.”

103 On 14 February 2006, Mr Huynh and Ms Amy Young inspected the site and took photographs. The concrete slab, basement walls and concrete starter bars were in place. The configuration of the building works was in accordance with the two Havilland Architects drawings, both dated 10 January 2006.

104 Mr Moline said he was not present at the site when these building works were carried out, did not instruct any of the contractors who might have carried out the building works, did not direct any of the contractors and did not pay any of these contractors.

105 On 15 February 2006, the Council sent a letter to Mr Moline concerning the construction of “a concrete block wall, on the northern side of the proposed building, creating a ‘void’ between the basement car park and the subject wall”. The Council alleged it was unauthorised, not being in accordance with the approved plans.

106 Mr Moline said, upon receipt by him, he gave this letter to Mr Alan Tomkinson. On 16 February 2006, Mr John Harrison of John Harrison Engineering Co Pty Ltd telephoned Mr Moline and told him that “I am doing a letter to Council regarding the illegal work. Alan has asked me to explain to the Council that the walls were for engineering purposes”. Mr Harrison sent his letter to the Council the same day. Mr Moline said that he did not engage J Harrison Engineering Consulting Pty Ltd and did not authorise Mr Alan Tomkinson to do so on Mr Moline’s behalf.

107 On 24 February 2006, Mr Moline attended a meeting at Mr Havilland’s office with Mr Havilland and Mr Alan Tomkinson. In the course of the meeting, in response to Mr Moline saying to Mr Havilland they needed to work together, Mr Havilland said to Mr Alan Tomkinson “Alan, you are my client and I will only take instructions from you”. Mr Moline replied, “If I’m not a client, there is no purpose in my being here” and then left the meeting.

108 Subsequent communications from Havilland Architects to the Council refer to their client as being Mr Alan Tomkinson.

109 In summary, Mr Moline said in his affidavit:

“[129] It was my belief when I agreed to purchase the Property with AT & RT, I would be the architect and builder for the redevelopment of the Property and be in control of the redevelopment. After the security fence was erected I could only gain access to the Property if either AT or DT were present. The entry to the fence was padlocked and neither AT or DT gave me a key.

[130] Other than the ordering of the fence and hay bales, and the direction to the contractor carrying out excavation for the use of water, at no time in November, December 2005, January, February and March 2006 was I in control of the demolition, excavation or construction which took place at the Property. Nor was I able to exert any influence on AT, DT or OH not to carry out the works which are the subject of these proceedings.

[131] I at no time authorized AT, OH or DT to carry out the work on my behalf the subject of these proceedings. Further I did not engage at any time contractors or suppliers who carried out the works the subject of these proceedings or give any direction concerning the performance of the works at the Project (other than the direction concerning the use of water during excavation) which are the subject of these proceedings. I did not make any payments to any contractors or suppliers who were involved in the works the subject of these proceedings.”

110 The abbreviations used are AT: Alan Tomkinson; RT: Ruby Tomkinson; DT: Dean Tomkinson; and OH: Owen Havilland.

Evidence does not establish Mr Moline carried out the unlawful development

111 The evidence establishes that Mr Moline:

(a) anticipated he would act as the builder and to this end took out insurance and nominated himself in documentation to the PCA as builder;

(b) however, he never was appointed as the builder, there being no legally enforceable written contract with all of the owners of the land appointing him as the builder;

(c) never took possession of the building site and, in fact, was not provided with a key to the padlock on the gate of the site security fence and could only enter the site when Mr Dean Tomkinson was present and the gate was unlocked;

(d) the only physical work he did on site was, on 15 November 2005, to peg out the location of the building’s external walls showing the extent of excavation, but this was done in accordance with the development consent plans;

(e) the only other work he performed in relation to the carrying out of the development was, in early November 2005, to order the site security fence and hay bales but he did not install them;

(f) did not engage any contractors to undertake demolition, excavation or building works on the site;

(g) did not provide any instructions or directions to any contractors who had been engaged by another person or persons to undertake demolition, excavation or building works as to the work to be carried out, including the nature or extent of the work or the manner of carrying out the work, with the one exception of providing advice to the excavator about watering to suppress dust, after a complaint and fine by the Council;

(h) did not pay any contractors for work undertaken by them in relation to demolition, excavation or building works on the site and, indeed, had all financial documentation removed from him in late November 2005, so that he was in no position to do so;

(i) visited the site in the week of 14 November 2005 and observed the excavation contractor had excavated beyond the building’s external walls that Mr Moline had marked out on 15 November 2005;

(j) told Mr Alan Tomkinson that excavation should only be in accordance with the development consent plans;

(k) was not present when the Council officers visited the site on 24 November 2005 and observed the over-excavation not in accordance with the development consent plans;

(l) did not instruct Mr Havilland, architect, to prepare the basement floor plans showing the extension northwards of the basement with two parallel walls and four stores or void spaces, did not authorise Mr Alan Tomkinson to so instruct Mr Havilland, and was told by Mr Havilland that he would not take instructions from Mr Moline as he was not his client;

(m) did not instruct Mr Harrison, engineer, to prepare engineering drawings, did not authorise Mr Alan Tomkinson to so instruct Mr Harrison, and Mr Harrison identified Mr Alan Tomkinson as his client;

(n) gave advice to Mr Alan Tomkinson not to build the walls shown on Mr Havilland’s drawings, which walls were not in accordance with the approved plans, but such advice was rejected;

(o) sent a letter on 1 February 2006 resigning from the project to the Council and Mr Alan Tomkinson before building works were carried out in accordance with the drawings by Mr Havilland and Mr Harrison, and not in accordance with the development consent plans; and

112 On this evidence, Mr Moline clearly did not personally carry out the unauthorised excavation or building works. The works were carried out by other persons. Excavation was observed to be done by the contractor, Mr Howard Jack. There is no evidence, however, that the critical excavation further northwards than the development consent plans required was done by Mr Jack. Nevertheless, there is no evidence of any other person being engaged to carry out or actually carrying out excavation on the site. There is no evidence as to the identity of the person or persons who carried out the unauthorised building works including pouring the concrete slab and erecting the building walls.

113 The evidence does not establish any relationship between Mr Moline and, first, Mr Jack, and secondly, the unknown person or persons who carried out the unauthorised building works, such as would make Mr Moline vicariously liable for the actions of Mr Jack, if he carried out the unauthorised excavation, or the unknown person or persons who carried out the unauthorised building works.

114 Between Mr Moline and Mr Jack, there was no relationship of employer and employee or of principal and agent. Mr Jack was an independent contractor. Generally, an accused will not be vicariously liable for the conduct of an independent contractor: Colonial Mutual Life Assurance Society Ltd v Producers and Citizens Co-operative Assurance Co of Australia Ltd (1931) 46 CLR 41 at 48; Environment Protection Authority v Multiplex Constructions Pty Ltd (2000) 112 LGERA 1 at 58-59 [277]. There are exceptions to this general principle. An accused may be vicariously liable where the accused has directly authorised the doing of the actus reus by the independent contractor: see Environment Protection Authority v Multiplex Constructions Pty Ltd (2000) 112 LGERA 1 at 59 [278], [280] and Environment Protection Authority v McConnell Dowell Constructors (Aust) Pty Ltd (2003) 128 LGERA 240 at 262 [104] – 263 [106]. An accused may be vicariously liable where the work done by the independent contractor is subject to the control and direction of the accused in the actual execution of the work: see Environment Protection Authority v Multiplex Constructions Pty Ltd (2000) 112 LGERA 1 at 59 [280], 61-62 [290]. In Environment Protection Authority v McConnell Dowell Constructors (Aust) Pty Ltd (2003) 128 LGERA 240 at 262 [102], Pearlman J described the content of the control test as follows:

“That test involves a right to direct and control a course of action, in circumstances where the right is capable of exercise and is, or is likely to be, effective. It relates to the manner in which the independent contractor undertakes the course of action, that is, the way in which the tasks are to be performed or how they are to be carried out”.

115 The evidence does not establish that Mr Moline directly authorised the unauthorised excavation by Mr Jack (if he did it), or that Mr Jack was subject to the control and direction of Mr Moline in the actual execution of the excavation. Mr Moline had no enforceable contractual rights as a builder, was not in possession of the site, was not the project manager, was not the site supervisor, did not engage Mr Jack, and except for advice as to watering to suppress dust, had no contact with Mr Jack and did not give any directions to Mr Jack as to the actual execution of his work. To the contrary, the evidence establishes Mr Moline’s lack of power to control and direct the work, including excavation, on the site.

116 In relation to the unknown person or persons who carried out the unauthorised building works, the evidence also does not establish any relationship whereby that person or those persons were directly authorised by Mr Moline to do the unauthorised building works or were subject to the control and direction of Mr Moline in the actual execution of the building works. Again, the evidence establishes Mr Moline’s lack of power to control and direct the building works on the site.

117 In these circumstances, the prosecution has not proven beyond reasonable doubt that Mr Moline was a person who carried out development otherwise than in accordance with the consent given.

Mr Tomkinson

118 Much of the evidence that I have summarised above in relation to Mr Moline is relevant to the case against Mr Tomkinson. However, there are differences that need to be noted.

119 Mr Alan Tomkinson was one of three persons who purchased the site for the purpose of redevelopment. I have earlier described the agreements between Mr Alan Tomkinson, Mrs Ruby Tomkinson and Mr Moline.

120 Mr Tomkinson did not prepare the development application or participate in the meetings with Council officers before and after lodgement of the development application. He did, however, express frustration at the time taken by the Council to grant development consent. The primary recipient of Mr Tomkinson’s expressions of frustration was Mr Moline. Mr Moline gave evidence of conversations he had had with Mr Tomkinson. The only time Mr Tomkinson was said to have communicated with the Council about the development application was by means of a letter to the general manager of the Council dated 31 October 2005. That letter bore, at the end of the letter, the typed name of “Alan Tomkinson”.

121 However, there is reasonable doubt that the letter was Mr Tomkinson’s letter. Mr Moline said in his affidavit evidence that Mr Tomkinson gave him “a copy of correspondence he sent to North Sydney Council dated 31 October 2005”. However, on cross-examination by Senior Counsel for Mr Tomkinson, Mr Moline made a number of concessions which showed that statement to be incorrect.

122 In the conventional way, the letter contained in the top right hand corner the contact details of the sender, namely the address, telephone and facsimile numbers. The facsimile number stated was not that of Mr Tomkinson but rather was that of Mr Moline’s office facsimile. Although the letter had the typed name of “Alan Tomkinson”, it had beneath that name the typed word “per”. Mr Moline agreed that the letter was prepared by the person who typed the letter in the full knowledge that it would not be signed by Mr Tomkinson because the word “per” appears below Mr Tomkinson’s name. The copy of the letter received by facsimile by the Council had hand written “A Tomkinson” above the typed name “Alan Tomkinson” and handwritten initials “JM” next to the typed word “per”. Mr Moline agreed he signed the words “A Tomkinson” and put his initials next to the “per”. The letter faxed to the Council bore the header “From: Moline Associates” and Mr Moline’s office facsimile number. Mr Moline agreed he faxed the letter. Mr Moline said that Mr Tomkinson came to his office, dictated the letter to Mr Moline and Mr Moline typed it in front of him in Mr Moline’s office. This version of events is evidently different to that given in Mr Moline’s affidavit.

123 Considering this evidence, I do not find that Mr Tomkinson wrote the letter of 31 October 2005 to the Council. In addition to the above matters raised in cross-examination which undermine Mr Moline’s evidence that Mr Tomkinson sent the letter and provided a copy to Mr Moline, the contents of the letter are consistent with Mr Moline having drafted the letter. Mr Moline’s evidence is that he alone prepared the development application, met with the Council officers before and after lodgement of the development application and dealt with their queries and had communications with the Council. Mr Moline was the person who arranged for Mr Paul Fitzgerald to be the PCA and to prepare the Construction Certificate, as the documentation shows. The first three paragraphs of the letter refer to these events. Only Mr Moline had direct knowledge of and had participated in these events. Mr Tomkinson was not involved. The use of the word “we” in these paragraphs is not descriptive of the true situation. In this context, the later use of “we” and “us” in reference to sub-contractors is ambiguous. It does not prove that Mr Tomkinson was involved with the sub-contractors.

124 Furthermore, it is improbable that if Mr Tomkinson wished to send a letter to the Council, he would come to Mr Moline’s office, dictate it to Mr Moline, who would type it in front of him, then have Mr Moline sign the letter for Mr Tomkinson in his presence and then send it for Mr Tomkinson. Mr Tomkinson did write directly to the Council on another occasion on 2 February 2006, evidencing his willingness and capability to do so.

125 I, therefore, do not find that Mr Tomkinson wrote the letter of 31 October 2006 to the Council. The statements in that letter are not admissions by Mr Tomkinson.

126 After the development consent was issued by the Council on 1 November 2005, Mr Moline attended to the steps of obtaining the necessary insurance, appointing Mr Fitzgerald as the PCA and applying for a construction certification. Mr Moline completed the form for Appointment of PCA and Notice to Commence Work. He inserted the names of each of the owners, Mr and Mrs Tomkinson and himself, and signed for each of them. Mr Tomkinson had no involvement in these steps.

127 Mr Moline prepared the s 96 application to modify the development consent and lodged it with the Council on 7 November 2005. Mr Moline prepared the s 96 drawings and the statement that accompanied the s 96 application. Mr Moline also completed the application form and inserted the names of each of the owners, Mr and Mrs Tomkinson and himself, and again signed for each of them. Mr Moline lodged the s 96 application with the Council. Mr Moline had the meetings and conversation with Council officers after lodgement of the s 96 application. He also prepared and submitted amended s 96 plans on 30 November 2005. Mr Tomkinson was not involved in the preparation and lodgement of the s 96 application.

128 The evidence does not establish that Mr Alan Tomkinson undertook demolition, excavation and building work on the site, either personally or was vicariously liable for others who undertook such work. I will deal separately with the evidence in relation to demolition, excavation and building work.

129 In relation to demolition, the evidence of Ms Amy Young of the Council is that Mr Dean Tomkinson was on site on 28 October 2005 and claimed he was undertaking some demolition and arranging for further demolition. Ms Young said that Mr Dean Tomkinson said “I am getting prepared for demolition of the existing dwelling and I intend to remove the roof of the existing dwelling on site over the coming weekend”. Later, Mr Dean Tomkinson said “I called the approved asbestos removal person that I had booked to remove the roof and have cancelled his appointment for the weekend”. Mr Moline corroborated that Mr Dean Tomkinson said the last statement. Mr Moline also gave evidence that he had been told by Mr Alan Tomkinson that “the fellow removing the asbestos is a mate of Dean’s”. Mr Dean Tomkinson also referred to Mr Moline as “my architect/builder”. The evidence does not establish that Mr Alan Tomkinson engaged the persons who undertook the demolition or gave any directions or exercised control in relation to demolition.

130 In relation to excavation, Mr Howard Jack was observed excavating at the time of the visit by Mr Huynh and Mr Perry on 24 November 2005. Mr Jack identified himself by name to Mr Huynh. However, the prosecution did not adduce any evidence of the identity of any person who engaged Mr Jack, the terms of Mr Jack’s engagement, the scope of his work, any instructions or directions given to him as to his work, or who paid for Mr Jack. Mr Moline also observed excavation being performed by an excavator who he later learnt was Mr Howard Jack. Mr Moline had a conversation with Mr Jack and Mr Dean Tomkinson about watering to suppress dust whilst excavating. Mr Moline’s evidence does not establish positively who did engage Mr Jack or the terms of engagement, the scope of the work, any instructions or directions given, or who paid for Mr Jack. Mr Moline said he did not engage Mr Jack.

131 Mr Moline’s evidence of conversations he had with Mr Alan Tomkinson about excavation might be consistent with Mr Moline having a belief that Mr Tomkinson had engaged Mr Jack or had some relationship with Mr Jack whereby he could direct or control Mr Jack in execution of the excavation. But such a belief, if it was held, falls short of proof that Mr Tomkinson actually did engage Mr Jack or had such a relationship.

132 Mr Huynh gave evidence of a conversation he had with Mr Dean Tomkinson on 24 November 2005 in relation to over excavation. However, that conversation does not establish that Mr Alan Tomkinson carried out the over-excavation or directed others to over-excavate. First, on their face, the statements of Mr Dean Tomkinson were that he, and not Mr Alan Tomkinson, claimed responsibility for the over-excavation. Mr Dean Tomkinson was said by Mr Huynh to have said, “I am over-excavating. So. I am paying for it” and “I am sick of you idiots coming to my site and telling me what to do. This is my site and I can do what I want with it. I can over excavate if I want. It is at my own cost”.

133 Secondly, the statements of Mr Dean Tomkinson cannot be characterised as those of an agent for Mr Alan Tomkinson and admissions against Mr Alan Tomkinson. The evidence does not establish that Mr Alan Tomkinson appointed Mr Dean Tomkinson as his agent. There is no evidence of any contractual relationship between them. Mr Dean Tomkinson was said by others (Mr Jack and Mr Moline) to be the supervisor at the site, but there is no evidence establishing that he was so appointed, or the scope of his work, or his authority to speak for and on behalf of any other person, including Mr Alan Tomkinson.

134 There is also evidence of conversations that Mr Huynh and Mr Moline had directly with Mr Alan Tomkinson about excavation. The prosecution relies on Mr Alan Tomkinson’s statements to establish that Mr Alan Tomkinson directly authorised the over-excavation or that the excavator was subject to the control and direction of Mr Alan Tomkinson in the actual execution of the work. However, the statements are equivocal and do not so establish these facts. I will deal with the statements in chronological order.

135 Mr Moline said that on the three or four occasions he visited the site during November 2005, he observed that demolition and excavation work had begun on the existing property. He said he told Mr Alan Tomkinson he could not carry out work until the construction certificate had been issued. Mr Moline said Mr Alan Tomkinson replied, “I’ve been delayed too long already. Demolition and excavation are not considered construction and therefore I can carry it out without a construction certificate”.

136 The prosecution has not charged the defendants for carrying out demolition and excavation without a construction certificate; rather the charge relates to the over-excavation that was carried out subsequently in November 2005. The statement does not prove Mr Alan Tomkinson directly authorised that over-excavation or controlled or directed whomever did the over-excavation.

137 The next conversation Mr Moline said he had with Mr Alan Tomkinson was after Mr Moline had marked out the setout of the external walls on 15 November 2005. Mr Moline said the conversation was as follows:

“JM said: I have marked the building out in accordance with the DA. I am trying to get Council to approve the Section 96.

AT said: I am going to excavate for the Section 96 amendment, because that’s what I want for this building.

JM said: We do not have approval for the expanded area, we can only excavate in accordance with current DA.

AT said: I can’t wait any longer, I’ve been delayed by 12 months already and I am losing money.”

138 Mr Moline said he had another conversation later that week after he had visited the site and observed that the contractor had excavated beyond the external walls Mr Moline had marked out. Mr Moline said the conversation was as follows:

“JM said: We can’t excavate beyond what’s approved until we know the Section 96 is approved.

AT said: I need to excavate so I can get space for four cars for unit 1.

JM said: You need to wait for the approval. It looks like Mark Schofield will recommend the Section 96 for approval. But we can only excavate what’s currently approved.

AT said: I’m not waiting.”

139 On 24 November 2005, when Mr Huynh inspected the site and observed what he considered to be over-excavation, he had a telephone conversation with Mr Alan Tomkinson. This telephone conversation followed on from the conversation Mr Huynh had had with Mr Dean Tomkinson in which Mr Dean Tomkinson claimed responsibility for over-excavating. Mr Dean Tomkinson had then rung Mr Alan Tomkinson, spoke to him, before putting Mr Huynh on the telephone to speak to Mr Alan Tomkinson. The statements made by Mr Alan Tomkinson in the conversation that followed bears some resemblance to the earlier statements made by Mr Dean Tomkinson. Mr Hunyh said the conversation went as follows:

“Alan said: Who am I speaking to?

Alan said: Who is the idiot that ordered stop work on my site.

I said: It was not an order...But advice. In any case, it was me!

I [Mr Huynh] gave him the reasons for my advice.

I said: Alan, I am more than happy to discuss this matter with you in a civil manner. But if you continue to swear and use inappropriate language, I will terminate this conversation.

Alan said: Do you know who I am? I am the owner of this land. This is my property. I own this land and therefore I will excavate as much as I want to. I have just paid $25,000 to the Council. A substantial amount. This makes me your boss. I will call the GM and the Minister to have you fired.

Alan said: It’s not a threat. It is a promise.

I said: Fine. Let’s get back to the issues...

Alan said: Your advice is fucked. I will not follow that advice.

I said: That’s entirely up to you. Who is responsible for all the works on this site?

140 Mr Moline said that following that inspection of the site by Mr Huynh on 24 November 2005, Mr Alan Tomkinson met with Mr Moline at Mr Moline’s office and the following conversation occurred.

“JM said: We can only excavate in accordance with the current consent and for access to build the walls.

AT said: This over excavation issue is bullshit. We can excavate however we like to be able to build the basement walls.

JM said: You can’t do it”.

141 After that date, excavation apparently continued, but the evidence does not establish that there was any further excavation in the northern area not in accordance with the development consent. Mr Hunyh’s evidence was that he observed excavation up to approximately two metres from the northern boundary of the site on both occasions he visited the site, on 24 November 2005 and on 20 December 2005.

142 The statements of Mr Tomkinson in these conversations certainly assert, intemperately and robustiously, Mr Tomkinson’s intention to excavate as much as he wanted to or “for the Section 96 amendment”. But the offence charged is not holding or asserting an intention to excavate not in accordance with the consent given, but actually doing so. Hence, the two conversations recounted by Mr Moline as occurring after the marking out of the site on 15 November 2005, do not prove that Mr Tomkinson actually did do what he said with bravado he would do. The statement in the telephone conversation with Mr Huynh on 24 November 2005 and the statement in the subsequent meeting with Mr Moline also do not prove that Mr Tomkinson personally did the over-excavation or directed others to over-excavate; rather the statements are rude assertions of bravado and defiance of what was perceived to be bureaucratic interference.

143 The prosecution submits, however, that when Mr Alan Tomkinson’s statements of intention to carry out over-excavation are coupled with the fact that over-excavation actually occurred, the only rational inference that can be drawn is that Mr Alan Tomkinson carried out the over-excavation, either personally or vicariously.

144 The resort to inference is necessary because the evidence is circumstantial. Circumstantial evidence is evidence of a basic fact or facts from which an inference of a further fact or facts is drawn. The circumstantial evidence does not directly prove the further fact. In this case, the fact that the prosecution needs to prove is the element of the offence that Mr Tomkinson carried out the over-excavation personally or that he is vicariously liable for the conduct of another person who carried out the over-excavation. The evidence of Mr Alan Tomkinson’s statements of intention to over excavate and of the existence of over-excavation on the site do not directly prove that further fact of Mr Tomkinson carrying out the over-excavation.

145 The consequence of the evidence being circumstantial is that “guilt should not only be a rational inference but should be the only rational inference that can be drawn from the circumstances”: Shepherd v The Queen (1990) 170 CLR 573 at 578. This test is not met in the circumstances of this proceeding. Clearly, the inference that Mr Alan Tomkinson personally carried out the over-excavation cannot be rationally drawn. The evidence of Mr Huynh and Mr Moline is that they observed Mr Howard Jack carrying out excavation on site, although not necessarily the over-excavation. A far more rational inference is that Mr Jack did the over-excavation.

146 The inference that Mr Alan Tomkinson was vicariously liable for the actions of the person who over-excavated is also not the only rational inference. There is no evidence of a relationship of employee and employer or of principal and agent between Mr Alan Tomkinson and Mr Jack or any other person who might have carried out the over-excavation. Insofar as Mr Jack or any other person was an independent contractor, Mr Alan Tomkinson would not be responsible for that person’s actions in over-excavating unless Mr Alan Tomkinson directly authorised the over-excavation by that person or that person was under the control and direction of Mr Alan Tomkinson in the actual execution of the excavation. There is no evidence of such direct authorisation or such exercise of control and direction by Mr Alan Tomkinson. Assertions of bravado and defiance are insufficient.

147 There is evidence, however, that Mr Dean Tomkinson may have been exercising control and direction over works on site. He referred to “my architect/builder”; he was said by others to be the site supervisor; he had the key to the security fence; he was said to be always on site and, in fact, was on site on each occasion when the Council officers and Mr Moline visited the site, including when excavation was being carried out; he made statements claiming responsibility for over-excavating; he had arranged the demolition contractor; he had installed the security fence and hay bales; he undertook watering of the site to suppress dust during excavation; amongst other tasks. A rational inference is that Mr Dean Tomkinson had directly authorised the over-excavation or exercised control and direction over the actual execution of the excavation.

148 However, as I have held earlier, the evidence does not establish a sufficient relationship between Mr Alan Tomkinson and Mr Dean Tomkinson such that the former could be held vicariously liable for the latter’s actions.

149 Hence, an inference that Mr Alan Tomkinson must have directly authorised the over-excavation or exercised control and direction over the actual execution of the excavation is not the only rational inference that can be drawn in the circumstances.

150 In relation to the unauthorised building works, the evidence is also circumstantial as to Mr Alan Tomkinson’s involvement, either personally or vicariously.

151 The building works that were not in accordance with the development consent given, were carried out after 20 December 2005. That was the day when Mr Huynh and Mr Perry of the Council inspected the site and took photographs. The unauthorised building works were not evident at that time. The unauthorised building works were, however, evident and were noticed on 14 February 2006 when Mr Huynh and Ms Young of the Council visited the site. Hence, the unauthorised building works occurred between 20 December 2005 and 14 November 2006.

152 The prosecution adduced no evidence of who actually carried out the building works in this period. There is no evidence of the identity of the person or persons who poured the concrete slab, placed the steel starter bars for the return walls or erected the concrete block walls, all otherwise than in accordance with the development consent given. There are no contractual documents or financial records in evidence relating to these building works.

153 Mr Huynh and Ms Young, the two Council officers called by the prosecution, gave no evidence of any conversation with any person who carried out the works or who directed the carrying out of the works.

154 The telephone conversation which Mr Huynh had with Mr Alan Tomkinson on 24 November 2005 in which Mr Tomkinson answered Mr Huynh’s question as to “Who is responsible for all the works on this site?” by stating “Technically, James Moline is the official builder but I own this land. So the bottom line is me” is not evidence proving that Mr Alan Tomkinson personally carried out the unauthorised building works or that he was vicariously liable for the actions of another person or persons who carried out the unauthorised building works. There are three reasons.

155 First, the question and the answer were in the context of the excavation that was occurring then, not any future building works, whether authorised or unauthorised. Secondly, an acceptance by Mr Alan Tomkinson of ultimate responsibility – “the bottom line is me” – is not an admission of either personally carrying out works or having the relationship that the criminal law requires for attribution of vicarious liability for the actions of another person who actually carried out the works. Thirdly, as noted earlier, the statement is circumstantial and not direct evidence of Mr Alan Tomkinson carrying out the works, either personally or vicariously, and that fact is not the only rational inference that can be drawn from the evidence.

156 Mr Huynh does not refer in his evidence to any other conversation with Mr Alan Tomkinson relating to the carrying out of the unauthorised building works. Mr Young refers to no conversations with Mr Alan Tomkinson.

157 All but one of the conversations that Mr Moline said he had with Mr Alan Tomkinson, referred to earlier, related to excavation and not building works. They do not prove Mr Alan Tomkinson carried out the unauthorised building works, personally or vicariously. The only conversation Mr Moline states he had with Mr Tomkinson that directly referred to the unauthorised building works was on 27 January 2007. That conversation was as follows:

“JM said: I want to discuss all of the issues we are facing, in particular our deteriorating relationship and the unauthorised works.

AT said: I will not stop work on the walls as shown on Havilland’s drawings as he has assured me he will have them approved.

JM said: That work is illegal. It doesn’t comply with the literal interpretation of the landscape definition in the Council LEP. That’s why Council refused the Section 96 application. Storerooms are defined as structure in the North Sydney LEP. Therefore, having the same effect as the increased basement application. There is no way in the world, Council will approve these walls. You are not to construct the north wall shown on Havilland’s drawings.

AT said: I refuse to accept your advice. It’s my building and my architect says he will have it approved as storerooms. I have instructed Havilland to lodge a Section 96 showing the storerooms.

JM said: It won’t get through. I believe you have been given negligent advice.

AT said: I will sue the bastards if they stop me building what I want.

JM said: There is no point in discussing this any further. Please leave.”

158 The statements of Mr Alan Tomkinson are again statements of intention as to what he will or will not do. But in themselves, they do not prove Mr Alan Tomkinson personally carried out the unauthorised building works. The other evidence would also not support such a conclusion. Persons other than Mr Alan Tomkinson poured the concrete slab and built the walls.

159 The statements do prove that Mr Alan Tomkinson engaged Mr Owen Havilland as an architect and instructed him to lodge a s 96 application showing storerooms. These facts are corroborated by other evidence, including the plans drawn by Mr Havilland and Mr Havilland’s statement to Mr Moline that Mr Alan Tomkinson was his client. But instructing another architect to lodge a s 96 application to modify the consent given is not unlawful. The illegality comes from carrying out building works before the consent is modified so as to permit such building works.

160 The notable statement of Mr Alan Tomkinson in the conversation is that “I will not stop work on the walls as shown on Havilland’s drawings”. The walls shown on the Havilland drawings are not in accordance with the development consent plans. The statement is an assertion that Mr Alan Tomkinson believed he had a capacity to stop work on these walls. However, the critical fact to prove guilt is that Mr Alan Tomkinson actually did direct work on these walls in the first place. An asserted belief of a capacity to stop work that was unauthorised is not proof of directing the unauthorised work to be done in the first place.

161 The prosecution also relied on various pieces of evidence that it said show that Mr Alan Tomkinson professed or had a capacity to exercise control and direction over development on the site. This evidence included assertions of Mr Tomkinson that he owned the land, that the bottom line was with him and that he had paid money to Council (as required by the consent); his participation as a joint venturer with Mrs Tomkinson and Mr Moline in the purchase and redevelopment of the site; his instructing the architect Mr Havilland to prepare a further s 96 application; his instructing the engineer Mr Harrison to prepare a letter to the Council about the unauthorised building works; and his involvement subsequent to the unauthorised building works being done to find a solution with the Council. Again, however, the evidence of these matters does not directly prove that Mr Alan Tomkinson carried out the unauthorised building works, either personally or vicariously; it is circumstantial. Neither individually nor collectively do these pieces of evidence permit the inference that Mr Alan Tomkinson carried out the unauthorised building works to be drawn as the only rational inference.

162 Clearly, Mr Alan Tomkinson did not personally undertake the unauthorised building works; the works were undertaken by others but the evidence does not establish their identity. The evidence does not establish that the unknown person or persons had a sufficient relationship to Mr Alan Tomkinson such as to make him vicariously liable for their actions in carrying out the unauthorised building works. No relationship of employer and employee or principal and agent has been established between Mr Alan Tomkinson and the unknown person or persons. If the unknown persons are independent contractors, the evidence does not establish that Mr Alan Tomkinson directly authorised the carrying out of the unauthorised building works or exercised control or direction over the actual execution of the building works. Mr Alan Tomkinson may have instructed Mr Havilland and Mr Harrison, but the evidence only establishes he gave instructions as to the preparation of architectural and engineering drawings for a modified development, not to carry out the modified development.

163 Again, one rational inference that can be drawn from the circumstances is that Mr Dean Tomkinson exercised control and direction over works on site. In addition to the matters referred to earlier, the grid setout plan drawn by Mr Zeggelink described the client as being “Moline Associates and Dean Tomkinson”. I have earlier noted Mr Moline’s evidence denying that he ever instructed Mr Zeggelink. That leaves Mr Dean Tomkinson. In the conversation Mr Huynh had with Mr Dean Tomkinson on site on 14 February 2006, Mr Dean Tomkinson said of the unauthorised, northern external wall that it had been “OK’ed by someone at the Council” and he “explained that this area was a void and in accordance to his engineer’s drawings”. Mr Dean Tomkinson provided plans showing the unauthorised northern external walls. He said the plans had been approved by the PCA. Again, this is evidence of Mr Dean Tomkinson exercising control and direction over the unauthorised works.

164 However, the evidence does not establish a sufficient relationship between Mr Alan Tomkinson and Mr Dean Tomkinson such that the former could be held vicariously liable for the latter’s actions.

165 In these circumstances, the fact that Mr Alan Tomkinson carried out the unauthorised building works, either personally or vicariously, is not the only rational inference that can be drawn in the circumstances.

166 Accordingly, the prosecution has not proven beyond reasonable doubt that Mr Alan Tomkinson was a person who carried out the development otherwise than in accordance with the development consent given.

Effect of subsequent modification of consent

167 Each of the defendants also submitted that the subsequent modification of the development consent by the Council, by operation of s 96(4) of the Act, had the effect that there was no longer a breach of s 76A(1) of the Act and hence s 125(1) of the Act.

168 I dealt with what I had understood the defendants’ argument to be in my judgment on the no case to answer submission: North Sydney Council v Moline; North Sydney Council v Tomkinson [2008] NSWLEC 57 (7 February 2008) at [65]-[70]. However, the defendants respectfully submitted that I had misunderstood the submission they were putting. They said that the submission was not that the effect of the modification is retrospective, in the sense that it rendered what had been done lawful. Rather it is prospective in that it renders it unnecessary after the modification is approved, to treat all reference in the Act to the consent as references to the consent as modified. Thus, the defendants submitted, it is not possible to prosecute for a breach of the kind alleged in these charges (s 76A(1) and s 125(1) of the Act) once the breach has been rectified by a s 96 modification. This is not because what was allegedly done has retrospectively been made lawful, but because the words of the section creating the prohibition have ceased to identify the consent as the one which was breached.

169 In light of my finding on the evidence that the prosecution has not proven beyond reasonable doubt the offences charged, it is not necessary that I determine this submission of the defendants and I do not do so.

Conclusion and orders

170 The prosecution has failed to prove beyond reasonable doubt that each of the defendants committed the offence charged. Each defendant is, therefore, acquitted of the offence charged.

171 Accordingly, the Court orders:

1. Each summons is dismissed.

2. Costs are reserved.

**********

Citations

North Sydney Council v Moline; North Sydney Council v Tomkinson (No 2) [2008] NSWLEC 169

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CITATION:	North Sydney Council v Moline; North Sydney Council v Tomkinson (No 2) [2008] NSWLEC 169
PARTIES:	50007 of 2007 PROSECUTOR North Sydney Council DEFENDANT James Moline 50008 of 2007 PROSECUTOR North Sydney Council DEFENDANT Alan Tomkinson
FILE NUMBER(S):	50007; 50008 of 2007
CORAM:	Preston CJ
KEY ISSUES:	Prosecution :- carrying out development not in accordance with development consent - whether each accused proven to be a person who so carried out such development
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979 s 76A, s 96(1A), s 125 Home Building Act 1989 s 7A
CASES CITED:	Ashfield Municipal Council v Andrews (1986) 60 LGRA 248 Canterbury City Council v Saad (2000) 112 LGERA 107 Colonial Mutual Life Assurance Society Ltd v Producers and Citizens Co-operative Assurance Co of Australia Ltd (1931) 46 CLR 41 Environment Protection Authority v McConnell Dowell Constructors (Aust) Pty Ltd (2003) 128 LGERA 240 Environment Protection Authority v Multiplex Constructions Pty Ltd (2000) 112 LGERA 1 Hillpalm Pty Ltd v Heaven’s Door Pty Ltd (2004) 220 CLR 472 Power v Penthill House Pty Ltd (1993) 80 LGERA 247 Progress & Securities Building Pty Ltd v Burwood Council & Anor (No 2) [2008] NSWLEC 135 (11 April 2008) Rao v Canterbury City Council (2000) 112 LGERA 360 Sharp v Hunters Hill Council (2002) 120 LGERA 155 Shepherd v The Queen (1990) 170 CLR 573 Wilkie v Blacktown City Council (2002) 121 LGERA 444
DATES OF HEARING:	6, 7, 14 and 18 February 2008
DATE OF JUDGMENT:	16 May 2008
LEGAL REPRESENTATIVES:	PROSECUTOR Mr T Howard (barrister) SOLICITORS Maddocks DEFENDANT - 50007 of 2007 Mr N Pesman (barrister) SOLICITORS Day Dockrill DEFENDANT - 50008 of 2007 Mr J Ayling SC SOLICITORS Wilshire Webb Staunton Beattie