North Sydney Council v Perini (No 2)

[2013] NSWLEC 91

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:

North Sydney Council v Perini (No 2) [2013] NSWLEC 91

Hearing dates:

17, 18, 19 August 2011, 24 October 2011, 22 October 2012

Decision date:

26 June 2013

Jurisdiction:

Class 5

Before:

Pepper J

Decision:

See orders at [205].

Catchwords:

SENTENCE: breach of development consent - dwelling built other than in conformity with consent - relevant sentencing principles - state of mind of offender at the time of the commission of the offence - reliance on advice and expertise of third parties - environmental harm caused by the commission of the offence - whether appropriate to impose fine but record no conviction - conviction recorded and fine imposed - costs ordered.

Legislation Cited:

Crimes (Sentencing Procedure) Act 1999, ss 3A, 21A

Criminal Procedure Act 1986, ss 257B, 257G

Environmental Planning and Assessment Act 1979, ss 5, 96, 121B, 125, 126

Fines Act 1996, s 6

State Environmental Planning Policy No 1

North Sydney Local Environmental Plan 2001

Cases Cited:

Axer Pty Ltd v Environment Protection Authority (1993) 113 LGERA 357

Bentley v BGP Properties Pty Ltd [2006] NSWLEC 34; (2006) 145 LGERA 234

Blue Mountains City Council v Carlon [2008] NSWLEC 296

Cabonne Shire Council v Environment Protection Authority [2001] NSWCCA 280; (2001) 115 LGERA 304

Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683

Cessnock City Council v Bimbadgen Estate Pty Ltd (No 2) [2011] NSWLEC 140

Chin v Ryde City Council [2004] NSWCCA 167; (2004) 133 LGERA 312

Council of the Municipality of Kiama v Furlong [2009] NSWLEC 139

Director-General, Department of Environment and Climate Change v Rae [2009] NSWLEC 137; (2009) 168 LGERA 121

Environment Protection Authority v Attard [2000] NSWCCA 242

Environment Protection Authority v Barnes [2006] NSWCCA 246

Environment Protection Authority v Ramsey Food Processing Pty Ltd [2010] NSWLEC 23

Filipowski v Fratelli D'Amato Srl [2000] NSWLEC 50; (2000) 108 LGERA 88

Filipowski v Hemina Holdings SA; Filipowski v Rajagopalan (No 2) [2009] NSWLEC 104

Garrett v Freeman (No 5) [2009] NSWLEC 1; (2009) 164 LGERA 287

Gerondal v Eurobodalla Shire Council [2009] NSWLEC 160

Gittany Constructions Pty Ltd v Sutherland Shire Council [2006] NSWLEC 242; (2006) 145 LGERA 189

Great Lakes Council v Spalding [2011] NSWLEC 257

Hili v The Queen; Jones v The Queen [2010] HCA 45; (2010) 242 CLR 520

Holroyd City Council v El-Khouri [2008] NSWLEC 83

Hornsby Shire Council v Devaney [2007] NSWLEC 199

Hunter Water Board v State Rail Authority of New South Wales (No 2) (1992) 75 LGRA 22

Hurstville City Council v Naumcevski [2011] NSWLEC 226

Ku-ring-gai Council v Abroon (No 3) [2012] NSWLEC 12

Lane Cove Council v Wu [2011] NSWLEC 43

Lavorato v R [2012] NSWCCA 61

Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357

Minister for Planning v Moolarben Coal Mines Pty Ltd [2010] NSWLEC 147; (2010) 175 LGERA 93

Mosman Municipal Council v Menai Excavations Pty Ltd [2002] NSWLEC 132; (2002) 122 LGERA 89

Muldrock v R [2011] HCA 39; (2011) 244 CLR 120

Newcastle City Council v Pace Farm Egg Products Pty Ltd (No 3) [2005] NSWLEC 423

Parramatta City Council v Cheng [2010] NSWLEC 94

Perini v North Sydney Council [2010] NSWLEC 1325

Pittwater Council v Scahill [2009] NSWLEC 12; (2009) 165 LGERA 289

Plath v Glover [2010] NSWLEC 119

Plath v Hunter Valley Property Management Pty Ltd [2010] NSWLEC 264

Plath v Rawson [2009] NSWLEC 178; (2009) 170 LGERA 253

R v Olbrich [1999] HCA 54; (1999) 199 CLR 270

R v Paris [2001] NSWCCA 83

R v Piccin (No 2) [2001] NSWCCA 323

R v Thomson; R v Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383

Terrey v Department of Environment, Climate Change and Water [2011] NSWLEC 141

The Council of the Municipality of Kiama v Pacific Real Estate (Warilla) Pty Ltd [2009] NSWLEC 191

Thorneloe v Filipowski [2001] NSWCCA 213; (2001) 52 NSWLR 60

Veen v The Queen [1979] HCA 7; (1979) 143 CLR 458

Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465

Weininger v The Queen [2003] HCA 14; (2003) 212 CLR 629

Category:

Sentence

Parties:

North Sydney Council (Prosecutor)
Peter Perini (Defendant)

Representation:

Mr I Hemmings (Prosecutor)
Mr P Tomasetti SC (Defendant)
HWL Ebsworth Lawyers (Prosecutor)
Storey & Gough Lawyers (Defendant)

File Number(s):

50043 of 2010

INDEX

Topic	Paragraph Number
Mr Perini Breaches a Development Consent to Build a Residential Dwelling	[1]
The Granting of the Development Consent	[6]
The Council Inspects the Property	[30]
Evidence of the Council	[68]
Mrs Nelson, the Neighbour	[69]
Mr Mossemenear, the Council Planner	[71]
Mr Fitzgerald, the Certifier	[73]
Mr Ridley Smith, the Architect	[83]
Mr Perini's Reliance on Mr Ridley Smith	[89]
Evidence on Behalf of Mr Perini	[92]
Mr Grill, the Interior Designer	[93]
Mr Dickson, the Builder	[95]
Mrs Perini	[98]
Mr Perini	[106]
Sentencing Principles	[123]
The Objective Circumstances of the Offence	[128]
Nature of the Offence	[129]
Maximum Penalty	[133]
Harm to the Environment Caused by the Commission of the Offence	[135]
Mr Perini's State of Mind at the Time of the Commission of the Unlawful Works	[138]
Reasons for the Commission of the Offence	[150]
Foreseeability of the Risk of Harm	[152]
Practical Measures to Prevent Harm	[157]
Control Over the Causes of Harm	[160]
The Offence is of Low Objective Gravity	[161]
Subjective Circumstances of Mr Perini	[162]
Prior Criminality of Mr Perini	[164]
The Good Character of Mr Perini	[165]
Mr Perini's Cooperation	[166]
Early Plea of Guilty	[168]
The Contrition and Remorse Demonstrated by Mr Perini	[171]
Mr Perini is Not Likely to Re-offend	[173]
Costs	[174]
Mr Perini's Financial Capacity to Pay a Fine	[181]
Conclusion on Subjective Considerations	[183]
The Appropriate Sentence to be Imposed on Mr Perini	[184]
Deterrence, Denunciation and Retribution	[185]
Consistency in Sentencing	[188]
An Order Under s 10 of the CSPA is Not Appropriate	[193]
Conclusion on Penalty	[203]
Orders	[205]

Judgment

Mr Perini Breaches a Development Consent to Build a Residential Dwelling

1. Mr Peter Perini, of 29A Shellgrove Road, Neutral Bay, New South Wales (Lot 2 DP 619776) ("the property") pleaded guilty to a charge at the first directions hearing on 11 February 2011 that he breached s 125(1) of the Environmental Planning and Assessment Act 1979 ("the EPAA") insofar as from 24 December 2008 to 11 September 2009, he carried out development on land to which an environmental planning instrument applied, the North Sydney Local Environmental Plan 2001 ("the LEP"), being development which, pursuant to the LEP, could not be carried out except with development consent, and that the development was otherwise than in accordance with the development consent No 106/07 ("the consent") issued by North Sydney Council ("the council").

1. The consent was granted by the council on 8 November 2007 for "the demolition of an existing pool and the construction of a new dwelling and associated carport and landscaping and boundary adjustment with No. 27-29 Shellcove Road".

1. Mr Perini (by his servants or agents) carried out development otherwise than in accordance with the plans specified in condition A1 of the consent ("the approved plans"), as varied by the plans approved by a construction certificate issued by Fitzgerald Building Certifiers Pty Ltd ("Fitzgerald") on 10 March 2008 ("the CC plans"), in the manner described below:

(a) external:

(i) additional excavation of sandstone to a depth of 700mm over the footprint of the excavation, being approximately 150 cubic metres

(ii) garage moved 3.3m further west and encroaching on the neighbouring land;

(iii) swimming pool constructed to courtyard area adjacent to carport;

(iv) increased in hard surfaced area and decreased landscaping area at northern end of driveway and southern end of garage;

(v) pool equipment room added to southern end of carport;

(vi) door provided to the southern side of the equipment room;

(vii) Concrete tiles beneath the level 3 pergola (west side) has been replaced with timber;

(viii) terraced area at level 1 (east side has been increased in size at north east corner);

(ix) parapet height of carport increased by 300mm;

(x) ridge height of dwelling increased by 1000mm;

(xi) dwelling overall height increased from 9.1m to 10.8m;

(xii) splay corner to north east corner of level 3 deleted;

(xiii) eastern balcony on level 3 increased in size at northern end

(xiv) wall for fireplace added to north;

(xv) southern elevation - increased in height, change to windows and additional window at level 1;

(xvi) eastern elevation - roof increased height, changed to window and door configuration;

(xvii) north elevation - and increased in height, changed to window location.

(b) third floor:

(i) footprint increased to west south of entry.

(c) second floor:

(i) floor level lowered by 350mm;

(ii) footprint of building and excavation increased to the west;

(iii) additional plant room on western side;

(iv) internal wall change to increased walk in robe size.

(d) first floor:

(i) floor level lowered by 700mm;

(ii) internal wall changes;

(iii) new guest room and ensuite;

(iv) laundry relocated;

(v) courtyard to south east corner reduced;

(vi) footprint of building excavation increased to the west.

1. Of the number of differences between the approved plans and the as-built unlawful works, it became apparent that only five main elements of those unlawful works were in contest before the Court ("the unlawful works"):

(a) first, the construction of the swimming pool and the swimming pool equipment room;

(b) second, the reduction and/or removal of the splay or chamfer at the north eastern corner of the dwelling;

(c) third, the increased height of the garage or carport by 300mm and its relocation 3.3m to the west;

(d) fourth, the increased depth of the excavation; and

(e) fifth, the increased height of the dwelling.

1. In addition to an agreed statement of facts (which attached documents), the parties relied upon numerous affidavits and various plans by way of evidence.

The Granting of the Development Consent

1. In order to fully understand the charges, and in particular, the matters raised in mitigation by Mr Perini, it is necessary to set out the history of the consent and the construction of the dwelling, most of which is uncontentious and was contained in the agreed statement of facts.

1. Initially, the development application was submitted on 29 June 2004, seeking consent for, amongst other things, the removal of the existing pool and the building of a new swimming pool. However, because the proposed dwelling encroached on the foreshore building line Mr Perini was advised by the council that the application could not be approved and he was invited to withdraw the application.

1. This resulted in his architects submitting a request by letter to amend the foreshore building line to allow the development to proceed as submitted. This was rejected by the council and again Mr Perini was invited to withdraw the development application.

1. This did not occur and on 13 September 2004 the council resolved to refuse the application because the proposal was an over development of the site as indicated by non-compliance with development standards in the LEP concerning landscaped area (cl 20), building height (cl 17) and building height plane (cl 18).

1. Noel Bell, Ridley Smith & Partners ("the architects") were Mr Perini's project architects for the development. The principal of the firm is Mr Frederick John Ridley Smith (known as "Ridley Smith").

1. A development application was lodged with the council on 21 March 2007 ("the DA"). The application was for the demolition of an existing inground pool, lawn area, some existing sandstone walls and stairs, and the construction of a new three level detached dwelling with a detached carport with parking for two cars, a new inground pool and associated landscaping works. The architects prepared the plans and supporting documentation for the application.

1. The DA relied upon two State Environmental Planning Policy No 1 ("SEPP 1") objections for breaches of Development Standards, first, the Building Height Plane, and second, the Landscaped Area.

1. The property has a frontage to Sydney Harbour. Between the property and the harbour is an area of foreshore land that Mr Perini leases from NSW Maritime. The SEPP 1 objection to the Landscaped Area Development Standards relied upon the inclusion of this foreshore land in the notional development site.

1. On 1 August 2007 the council advised Mr Perini in writing that the breach of the height plane control on the north eastern corner of the proposed building led to an unacceptable loss of view from the dining area of 31A Shellcove Road. The letter stated the following:

Council planners are of the view that, following careful consideration, the breach of the 'building height plane' (BHP) on the north-east corner of the proposed building leads to an unacceptable loss of view to Sydney Harbour from the upper level balcony and dining room of the neighbouring dwelling No 31A Shellcove Road; and

A closer examination of the plans and ground levels at the boundary of the site reveals that the BHP breach is 5.8m at the eave at the south-east corner of the building above the kitchen and 4.3m at the south-eastern eave above the dining room bay-window (ie: adjacent to two of the height poles); the ground level for the purpose of calculating the BHP must be taken at the boundary of the site, which is located 2.2m from the southern main wall of the proposed dwelling. It is noted at a 1.2m battle-axe strip being part of the lot to the rear separates the subject property from the adjoining property No 25 Shellcove Road.

You are requested to give consideration to amending the plans to reduce the extent of the BHP breaches, since there is certainly scope to do so given the dimensions of the site; such reductions in the BHP breach will also reduce the bulk and scale of the building when viewed in relation to 'Keynsham' and Shell Cove.

1. The neighbouring dwelling at 31A Shellcove Road is owned by Mrs Virginia Nelson.

1. The plans were subsequently amended, as authorised and approved by Mr Perini, to create a 45 degree splay at the north eastern and south eastern corners of the proposed building to reduce the non-compliance with the building height plane control to a negligible amount. The architects confirmed this amendment, and other consequential amendments to the plans, in a letter to the council on 17 August 2007. It was an agreed fact that Mr Perini authorised and approved each of the amendments to the plans referred to in that 17 August 2007 letter.

1. The architects wrote to the council stating that they had amended the DA drawings submitted earlier to the council in the following relevant ways:

a) The eastern elevation and plans have been changed by cutting the plan at the northeast and southeast corners to create 45 splays and the roof has as a result also been changed to a 45 splay. This significantly reduces the visual bulk when viewed from the water and the other side of Shellcove and reduces the non compliance in the building height plane to a negligible amount. It also changes the shadows so that the two windows to the neighbour's family room in N. 25 Shellcove Road are in full sun up to 12 noon on 21st June. The view from N. 31a Shellcove Road is significantly improved.

b) The pergola has been deleted also improving the view significantly from N.31a Shellcove Road.

c) The eaves projection at the proposed dining room bay window has also been reduced. This also ensures the shadow to the family room windows in N. 25 Shellcove Road are free of shadow up to 12 noon on 21st June.

1. On 22 September 2007 the council conducted a site inspection of the property with Mr Perini and the architect, Mr Ridley Smith.

1. In attendance were councillors, Mr Ian Pickles, the Executive Assessment Planner for the council, Mr Ridley Smith, Mr Gary Hoddinett, an architect at the same firm as Mr Ridley Smith and Mrs Virginia Nelson and her architect. The Mayor of the council chaired the meeting. A file note of the inspection, which the parties agreed is accurate, noted the following concerns expressed by the councillors present, members of the public and Mr Perini:

Councillors generally did not favour the inclusion of the foreshore reclaimed land leased from NSW Maritime as part of the notional development site for the purposes of calculating the 'landscaped area'; and the applicant [Mr Perini] should endeavour to comply fully with the landscaped area control. The applicant advised that much of the current upper level lawn area was created by filling during landscape works in 1986.

The applicant indicated an intention to delete the pool from the application plans to increase landscaped area.

...

The applicant explained that the amended plans involved a setback of the north-east corner of the building compared to the originally submitted plans, to reduce loss of Sydney Harbour view from No 31A Shellcove Road. However the consensus view of Councillors was that the view from the dining room of No 31A towards Sydney Harbour was important and should be protected by setting back the building even further at the top level where it is in breach of the building height plane;

...

Concern was expressed about the extent of excavation and the non-compliance with the building height control, in part due to location in excavation of the lowest habitable floor level.

1. At the meeting it was agreed, relevantly, that:

Landscaped area should be compliant with the control, with the swimming pool and associated plant room deleted;

The applicant will address the extent of excavation and building height to reduce the extent of the non-compliance with the 8.5m building height control.

1. Following the site inspection on 22 September 2007, the plans were amended, as authorised and approved by Mr Perini, to effect the following changes:

(a) the height of the proposed development was reduced at roof ridge by 900mm and the depth of excavation was reduced by 700mm, with reduced floor to ceiling heights to achieve 8.5m maximum height from lowest habitable floor to roof ridge;

(b) the swimming pool and plant room were deleted;

(c) the splay in the building at the top level at the north eastern corner was increased by a further 700mm;

(d) the garage or carport roof was lowered by 300mm;

(e) a boundary adjustment subdivision would transfer parts of 27-29 Shellcove Road, also owned by Mr Perini, to the property;

(f) the driveway entry was relocated further west as a result of the boundary adjustment; and

(g) an external stairway on the southern side of the dwelling was moved 1.2m away from the new southern boundary caused by the boundary adjustment.

1. Mr Perini authorised and approved the lodgement of the amended plans with the council ("the amended plans"). The amended plans were then submitted to the council.

1. The amended development application and plans were considered by the council at a meeting held on 5 November 2007.

1. At the council meeting held on 5 November 2007, the council noted the manner in which the current amended development proposal differed from the previous development proposal. It noted the relevant differences as follows:

Overall height reduced at roof ridge by 900mm and depth of excavation reduced by 700mm with reduced floor to ceiling heights, to achieve 8.5m maximum height from lowest habitable floor level to roof ridge; design of main roof altered; lift overrun turret reduced in height by 800mm;

Swimming pool and pool plant deleted;

Splay in the building at top level at north-east corner increased by a further 700mm;

...

Garage roof lowered by 300mm (this was recommended as a consent condition in the previous report);

1. In a report by Mr Pickles describing in further detail the proposal as amended, he noted that:

(a) in relation to the building height, the amended plans had reduced the height of the building at the roof by 900mm and raised the lowest habitable floor level by 700mm, which had the effect of reducing the height of the building as defined in the LEP to 8.5m so that the development was now compliant with the building height control contained in cl 17 of the LEP;

(b) the maximum building height plane breach had been reduced at the north east corner splay to 2.4m by the additional 700mm setback. Furthermore, the additional 700mm setback resulted in a further reduction in loss of view from the living and family room of the adjacent dwelling at 31A Shellcove Road (owned by Mrs Nelson). Mr Pickles went on to note that the reduction in the height of the roof by 700mm had little effect on the view to the Harbour. He concluded that Mr Perini had adequately taken into account the request of the council to setback the proposed building further at the north east corner of the top level to reduce view loss and to reduce the building height;

(c) the current amended plans achieved an increase in the landscaped area to 58.7% of the site by the deletion of the pool and the boundary adjustment with the property at 27-29 Shellcove Road. This minimum landscaped area was required by cl 20 of the LEP which stipulated that the minimum landscaped area required was 58% of a site with an area of more than 800m2 but not more than 900m2. The council noted that the site area (as defined in the LEP) did not include the 122m2 foreshore reclaimed area leased from NSW Maritime. Accordingly the proposed development now complied with the LEP;

(d) in relation to the excavation of the land, the council noted that, in conformity with cl 39 of the LEP, the extent of the excavation had been reduced in depth by 700mm, by reducing the floor to ceiling heights; and

(e) Mr Perini had "responded positively to the matters raised" by the council at the inspection and meeting on 22 September 2007, and in light of the increased setback of the north east corner (the splay), the lowering of the overall height of the roof, the reduction of the depth of excavation, and the increase in the landscaped area by the deletion of the pool and the transfer of the access strip to the foreshore by boundary adjustment, this had resulted in the amended application being recommended for approval.

1. Therefore, a notice of determination granting the consent was issued on 8 November 2007. Condition A1 of that consent stated that "the development shall be carried out in accordance with" the approved plans.

1. As noted above, a construction certificate (No 2008/128) for the work at the property was issued by Fitzgerald on 10 March 2008. The CC plans lodged with the construction certificate application and approved on that date by Fitzgerald were not, however, the same as the approved plans forming part of the consent.

1. The CC plans were prepared by the architects. It was not in dispute that Mr Perini authorised and approved the amendments to the approved plans to effect each change in the CC plans, or the submission of those plans to Fitzgerald.

1. An overlay of the approved plans and the CC plans was provided to the Court demonstrating the inconsistencies between the two sets of plans.

The Council Inspects the Property

1. On 26 August 2009 the council received a letter from Tzannes Associates on behalf of a neighbour requesting that the council inspect the property. Attached was a letter sent by Tzannes Associates to Mr Fitzgerald of Fitzgerald. That letter, was written on behalf of the owners of 25 Shellcove Road. The letter went on to express concern that the works as constructed on the property did not appear to be in accordance with the consent. Clarification was sought.

1. On 9 and 11 September 2009 council compliance officers Mr Qasim Malik and Mr Alex Mullin therefore conducted inspections of the property.

1. In his affidavit sworn 10 November 2010, Mr Malik deposed that during the 9 September 2009 inspection, he had a conversation with the builder, Mr John Dickson, of Dickson's Construction Pty Ltd ("Dickson's"), where he advised Mr Dickson to cease all works relating to the swimming pool. Mr Malik informed Mr Dickson that the swimming pool would require a development application. During his inspection he noted, in particular, that a swimming pool was under construction. Other discrepancies between the work observed and the work approved by the consent were also noted.

1. On 10 September 2009 Mr Malik and Mr Mullin met with Mr Dickson at the property, whereupon Mr Malik informed Mr Dickson that a review of the council records revealed that the CC plans approved by the private certifying authority (Fitzgerald) were different to the approved plans forming part of the consent. Mr Malik recommended that all works cease on the site. It was agreed that a full compliance inspection would be held the next day.

1. The inspection proceeded on the following day. In addition to Mr Dickson, both Mr Perini and Mr Ridley Smith were present. During the inspection Mr Malik and Mr Mullin noted up on the CC plans the differences between those plans and what had in fact been built. At the end of the inspection Mr Perini agreed to cease all works while the council investigated the discrepancies. Mr Perini provided Mr Malik with a copy of the plans pursuant to which the builders were working ("the working plans").

1. As was apparent from the inspection, the working plans were not the same as the CC plans. The working plans, it was agreed by the parties, were prepared by the architects. It was also not in dispute that Mr Perini authorised and approved the amendment to the CC plans to effect each of the changes in the working plans. The changes to the CC plans of concern are those described above at paragraph [4]. It was uncontentious that Mr Perini had directed work to occur in accordance with the working plans.

1. Following on from the inspection, on 11 September 2009 Mr Perini was sent a letter from the council recommending that he cease all work on the property. The recommendation was complied with.

1. An email to Mr Mullin from Mr Perini of the same date, however, stressed the importance of "being allowed to recommence work at the earliest possible time as we estimate there are approximately 50 workers involved on or off the site at the time of the stop work order being issued."

1. On 13 September 2009 Mr Perini emailed Mr Mullin again stating (emphasis added):

Sir,

We agree that the proper procedures of deviations from our DA approval have not been strictly followed.

By way of explanation, we were of the understanding that any deviation from the DA would not be a problem as long as it did not affect our neighbours and their amenities.

We understood that we would be held responsible should we receive a COMPLAINT from a neighbour.

We also understand that if the letter form our neighbour in No.25 had not been received, we would not be experiencing this present problem. That letter was not a complaint but a notice bringing to the Certifier's attention the possibility of deviations from our DA.

This notice was received only after we lodged some objections to various aspects of No.25's DA that affect our properties Nos. 29 and 29A.

We suggest the latter notice was vindictive as in no way do our deviations affect our neighbour.

Our plea is now to request the urgent attention of a council planning officer to visit our site and verify our deviations do not adversely affect our neighbours to enable all the people involved to return to work.

My wife and I accept full responsibility for not following the correct procedures and will accept whatever punishment metered out [sic] by the Council. In fairness however, we don't believe the builders and their subcontractors should be punished for our mistakes as naïve, first time home builders.

We respectfully ask that the Council gives this matter its urgent attention in order to get the job restarted and the men working again.

Yours sincerely,

Peter Perini

1. On 16 September 2009 the architects sent a letter to the council, which was signed by Mr Ridley Smith, in response to the council's letter dated 11 September 2009 to Fitzgerald and the meeting on the property on the same date. The letter was sent because "we [the architects] believe it is important to set out the course of events on the subject property over the last two years". In relation to the change to the pergola, the letter stated that this had been requested by Mr Perini and that the architects had told Mr Perini that this would require a s 96 application "but on the basis of discussions with Mr Pickles this could be done retrospectively once changed legislation was through". The letter noted that the change to the pergola was not specifically mentioned to Fitzgerald and "since it was not visible from neighbours was not considered an issue".

1. The changed legislation referred to an earlier discussion with Mr Pickles, who had indicated that the council was in the process of amending its LEP with respect to controls on landscaped areas as a percentage of site area. Mr Pickles had intimated that the changes were imminent. Mr Pickles further indicated that he was aware that Mr Perini wished to build a swimming pool, but to achieve the landscaped area required under the relevant planning instruments, this had to be deleted. According to Mr Ridley Smith, Mr Pickles had said that as soon as "the revised DCP and LEP were approved it would be possible to make a submission for a pool".

1. The letter also stated that the architects had sent a complete set of all relevant consent documents and conditions to Fitzgerald with a covering letter. However:

It is apparent from this letter that the specific D.A. drawing numbers were not mentioned. Mr Fitzgerald has now checked their files and cannot find a copy of them. Our office thought that they had been sent but we are unable to confirm this. Fitzgerald did receive a copy of the stamped site/landscape plan. Fitzgerald Certifiers issued the Construction Certificate on the construction drawings we supplied believing them to be in accordance with the D.A.

1. Finally, the letter stated that during construction, with the changed LEP still not having been promulgated, Mr Perini had nevertheless instructed the builder to commence construction of the carport, pool and changed driveway in accordance with the "second set of construction drawings", but not to complete these items. The letter concluded that the architects were still awaiting the planning instrument change, and therefore, a s 96 modification application had not yet been lodged.

1. The letter was consistent with evidence contained in Mr Pickles' affidavit sworn 13 July 2011. In that affidavit, Mr Pickles deposed to a conversation between himself and Mr Ridley Smith sometime in September 2007 where he said to Mr Ridley Smith:

(a) that the plans submitted with the DA showed an insufficient landscaped area on the site and were unlikely to be approved in their present form. However, if the swimming pool shown on the plans was deleted, there would be compliance or near compliance with the landscaped area requirements; and

(b) that the council intended to amend its LEP which would have the effect of reducing the landscaped area requirement for some residential developments. However, the process of amending the LEP would take several months and in the meantime Mr Perini should consider lodging a development application for a swimming pool.

Mr Pickles stated that he did not remember having any further conversations with Mr Ridley Smith in relation to the processing of the draft LEP.

1. On 30 September 2009 Fitzgerald created a document following on from an inspection of the property on that date by Mr Kieran Tobin, concerning "variation issues". In particular, it noted a "new swimming pool constructed to courtyard area adjacent to Car port". A number of variations were listed with respect to the billiards room and bedroom number three on level one; the master bedroom and bedroom number two on level two; and the kitchen, dining and living room on level three. The document was submitted to the council.

1. On 6 October 2009, pursuant to an inspection of the property on 30 September 2009, Mr Fitzgerald wrote to Mr Perini in his capacity as private certifying authority by way of notice of intention to serve an order 15 under s 121B of the EPAA because the consent was not being complied with. Mr Fitzgerald noted that amongst other things the following unapproved works had been undertaken:

New swimming pool constructed to courtyard area adjacent to Car port

...

The splayed section of wall to the South East is now a stepped wall.

1. Further unapproved works were noted generally on the property with respect to the carport; the open paved area beneath level three and level one; to bedroom three on level one; and to the living, dining and kitchen. The proposed order was to demolish the unauthorised works and to rebuild in accordance with the approved plans in order to ensure compliance with the consent.

1. On 15 October 2009 the council served a notice of intention to issue an order on Mr Perini, the terms of which were to require Mr Perini to comply with the approved plans.

1. On 22 October 2009 the council received a letter from Mr John Hancock of SJH Planning & Design ("SJH") advising that SJH had been approached by Mr Perini "to assist in resolution of issues raised" in the council's notice of intention to issue an order dated 15 October 2009.

1. On 16 November 2009 SJH lodged a modification application under s 96 of the EPAA on behalf of Mr Perini to amend the consent to obtain retrospective approval for the working plans.

1. On 1 February 2010 the council considered an assessment report on the modifications proposed and resolved the following:

A. THAT the matter be deferred to an in-house meeting to consider:

A detailed examination of the approved drawings relative to the as built drawings with an overlay.

A coloured overlay of the landscape plans showing those areas which are no longer landscaped in accordance with the controls.

The maintenance of the chamfering of the north-eastern corner of the development which was provided to protect views from the neighbouring property.

Whether the views from the neighbouring property are the same as those indicated by the height poles erected prior to granting consent.

B. THAT legal advice be obtained on whether or not it is appropriate for Council to seek demolition of the unauthorised works and in regard to prosecution action.

C. THAT a formal complaint be lodged concerning the private certifier.

1. On 9 February 2010 there was an in-house meeting at the council between Mr Perini, Mr Ridley Smith and council officers to discuss the proposed modifications. The council's file note of the meeting states that Mr Perini expressed the view that the changes proposed were all improvements and had no adverse impacts on the neighbours. He additionally expressed the view that he felt that he had been "punished" by not being allowed to finish the building during the last five months. The note went on to state that Mr Ridley Smith considered the changes were such that they did not require a s 96 modification even though the changes were a reinstatement of the amendments that council required before the approval was granted (the deletion of the pool, the chamfering of one corner of the house, the reduction of the paved area and a restriction on excavation depth).

1. The council's planner advised that an amended s 96 application was needed as recommended in the report to council on 1 February 2010, in addition to the reinstatement of the chamfering of the north eastern corner of the upper level. It was explained to Mr Perini that if the s 96 modification application was approved, the works carried out that were not in accordance with the approved modification plan would be required to be demolished and removed. However, Mr Perini stated that he would not be building in accordance with the plans that were submitted on 1 February 2010 and that he had no intention of demolishing anything unless directed by the Court.

1. On 15 February 2010 a meeting was held to determine the s 96 modification application. It was recommended, consistent with the council's articulated position stated on 1 February 2010, that determination of the modification application be deferred.

1. On 19 February 2010 Mr Perini lodged an appeal to the Court against the council's deemed refusal of the modification application.

1. On 25 November 2010 Tuor C delivered judgment, upholding the appeal in part (Perini v North Sydney Council [2010] NSWLEC 1325). At [48] of her judgment she stated the following:

48 In assessing the proposal against the mitigation measures in the GML Report, I accept Ms Hill's evidence that the extension of the garage and the pool will adversely impact on the significance of the item. The garage has increased in size to accommodate storage and a pool equipment room (from about 6.5m x 5.5m as approved to about 5.5m x 10.5m) and is located 3.3m closer to Keynsham. It intrudes into 29 Shellcove Road and requires a boundary adjustment to legitimise its location. As constructed, the garage is higher than what was approved (RL17.2 as built and RL16.9 as approved). The applicant has agreed to reduce its height to the approved level. I accept that the height reduction, the proposed roof top landscaping and wall treatment will mitigate the impact of the garage to some extent, however, I do not accept that this is sufficient to justify its increased size.

1. The Commissioner modified condition A1 to the effect that the development had to be carried out in accordance with the plans prepared by the architects and issued between 15 December 2008 and 6 February 2009, as amended by landscape plans (also prepared by the architects) and a plan of subdivision prepared by a surveyor. The reason given for the amendment of the condition was to "ensure that the form of the development undertaken is in accordance with the determination of Council".

1. Additional conditions included deletion of the chamfered corner and specification of the height of the dwelling at a level to reduce the impact on, in particular, Mrs Nelson's property at 31A Shellcove Road.

1. In respect of the height of the garage the following condition was imposed:

Height of Garage

C23. The maximum RL of the carport structure shall be RL 16.9 AHD measured at top of roof retaining wall of carport. Details showing compliance with these requirements shall be included in the plan submitted to the Certifying Authority for approval with the Construction Certificate.

(Reason: To reduce impact on Heritage item at 29 Shellcove Road and allow for sufficient soil depth for low growing plants)

1. In relation to the pool, condition C27 provided as follows:

Increase to landscaped areas

C27. The unauthorised pool and pool equipment room shall be demolished and be replaced with soft landscaping. The unauthorised paving of the driveway in front of the dwelling shall be removed and be replaced with soft landscaping. The paving on the driveway shall be sufficient only to provide vehicle access to the carport and allow for a single turning bay to permit vehicles to leave the property in a forward direction. The driveway paving shall be no closer than 6.5m from the western elevation of the dwelling. Details showing compliance with these requirements shall be included in the plan submitted to the Certifying Authority for approval with the Construction Certificate.

(Reason: To provide for increased soft landscaping to meet the objectives of the planning controls relating to landscape areas)

1. Following the decision of the Court, Mr Perini did not, however, remove the pool.

1. On 3 June 2011 the lawyers for Mr Perini, Storey & Gough, wrote to the council. The letter stated that:

(a) the Commissioner did not have the power to order demolition of a building;

(b) Mr Perini was proceeding to have the height of the garage reduced, the pool equipment room removed and the driveway constructed in accordance with the Commissioner's judgment; and

(c) a s 96 modification application to modify the consent to allow the pool to be completed and used would be lodged.

1. The letter went on to note that the council had requested that the existing pool be demolished and that therefore Mr Perini would seek a consent for a new pool, however, that "such an approach is contrary to good planning and environmentally sustainable principles". The letter was in response to a notice of intention to issue an order to Mr Perini dated 11 May 2011 to, amongst other things, demolish the unauthorised swimming pool. The letter concluded that if the order was issued, it would only result in a further appeal and an application for a stay of the order.

1. On 7 April 2011 Mr Geoff Mossemenear, an Executive Planner at the council, attended and inspected the property in the company of Mr Malik. He observed builders and personnel on site and works being undertaken within the partially constructed dwelling. He observed that the pool, the pool equipment room and the hardstand area had not been removed and replaced with soft landscaping as required by the consent as modified by the Court by Tuor C. Furthermore, the roof of the garage had not been lowered to the approved maximum height.

1. On 4 July 2011 the council issued another notice of intention to issue an order under s 121B of the EPAA to Mr Perini to demolish the pool and pool equipment room among other things.

1. On 1 August 2011 a development application was lodged by Mr Perini with the council to retain the pool and a building certificate application was lodged with the council to retain the existing collar above the approved garage and the pool.

1. On 16 November 2011 Mr Perini instituted Class 1 proceedings appealing the council's refusal of his application for a building certificate. On the same day he also commenced separate Class 1 proceedings seeking orders that the development application to use the swimming pool be approved.

1. On 10 August 2012, pursuant to a successful s 34 conciliation, Tuor C approved the development application subject to certain agreed amended conditions. And on 29 August 2012 the Commissioner directed the council to issue a building certificate. The certificate applies to the "in-ground concrete swimming pool and 300mm 'collar' structure above the garage, as constructed on 1 August 2011" on the property.

Evidence of the Council

1. In addition to the affidavit evidence referred to above from Mr Malik, the council also relied on affidavit evidence of Mr Mossemenear sworn 22 December 2010; Mrs Nelson sworn 22 July 2011; Mr Fitzgerald sworn 13 July 2011; and Mr Ridley Smith sworn 27 July 2011.

Mrs Nelson, the Neighbour

1. According to the affidavit of Mrs Nelson sworn 22 July 2011, the owner of 31A Shellcove Road (albeit through her directorship of AVN Investments Pty Ltd), on 14 February 2010 Mrs Sue Perini (Mr Perini's wife) approached her and asked her to sign a document setting out that she had no objection to the amendments to the north eastern corner of the development. Mrs Nelson declined to do so then and in fact she never signed the letter as she did not agree with its contents, particularly the first paragraph:

I'd like to confirm we have no objection to the masonry wall existing on the North Eastern Corner of your new home with regard to view interference.

1. In short, Mrs Nelson did not agree with the approved angled corner being reinstated in the position in which it had been constructed because of the amenity impact on her view. Other than the conversation referred to in her affidavit she deposed that she did not have a conversation with Mr Perini concerning the reinstatement of the corner. Mrs Nelson was not cross-examined.

Mr Mossemenear, the Council Planner

1. Mr Mossemenear compared the differences between the approved plans, the CC plans and what was constructed on the property as reflected in the working plans. These were largely reflective of the differences described above at [4]. It was the opinion of Mr Mossemenear that in relation to the height of the as-built dwelling on the property, the carport height was 300mm over that approved by the consent.

1. Mr Mossemenear was cross-examined. He agreed that the notes of the in-house meeting on 9 February 2010 were an accurate record of what had occurred at the meeting, including the opinions expressed by Mr Ridley Smith that the changes discussed at that meeting did not require a section 96 modification application to be submitted even though they were a reinstatement of the amendments that the council had required before approval was granted. This included the deletion of the pool, the chamfering of the north eastern corner of the dwelling, a reduction of the paved area and the restriction on excavation.

Mr Fitzgerald, the Certifier

1. The affidavit of Mr Fitzgerald was largely responsive to the affidavit of Mr Perini sworn on 19 April 2011. In his affidavit Mr Fitzgerald stated that he recalled attending a site visit before any works had commenced on the property. During the site visit a meeting took place between himself, Mr Ridley Smith and Mr Perini. He recalled saying to Mr Perini that "I do not have the power to approve anything other than minor changes to the development consent".

1. Mr Fitzgerald denied ever having a conversation with Mr Perini, in the presence of Mr Ridley Smith, that variations could be made to the approved plans as long as they did not interfere with the amenity of the neighbours or the safety of the site. Mr Fitzgerald stated that due to his experience as a certifier, he was aware of the types of changes that would require a s 96 modification application.

1. Mr Fitzgerald was cross-examined. Mr Fitzgerald denied ever having spoken to Mr Ridley Smith about the building works on the property, or stating that provided that the eaves stayed at the same level and the height of the roof was not altered by a metre, it was permissible to increase the height of the roof without a modification to the development consent. Mr Fitzgerald stated that when he received enquiries concerning changes that could be made to an approved construction certificate his standard response was that a plan of the changes had to be prepared and submitted to him for his consideration before he could provide advice.

1. Mr Fitzgerald also denied ever holding the view that alterations to works approved by a development consent which were to be carried out below ground would not require modification of the consent. Generally, it was Mr Fitzgerald's position that he would review each particular case on its merits but below ground changes such as those that concerned the lowering of the billiard room floor, required modification approval from the council. Indeed, apart from minor changes, he believed that he did not have the power as an accredited certifier to approve any modifications. Mr Fitzgerald reiterated on several occasions that he did not recall giving such advice to Mr Ridley Smith and it was not consistent with his views on these matters.

1. Mr Fitzgerald frankly admitted to having being disciplined by the Building Professionals Board for issuing a construction certificate in relation to the property in respect of drawings that were not consistent with the development consent drawings. Mr Fitzgerald was fined $1,500. This was not the first occasion that he had been reprimanded and fined by the Board for engaging in this practice.

1. Mr Fitzgerald denied ever having been sent a complete set of all the development approval documents and conditions.

1. Finally, Mr Fitzgerald was asked questions in relation to the CC plans and the approved plans. He agreed that there were inconsistencies between the two sets of plans. He agreed that he made various mistakes in his review of the CC plans. Somewhat inconsistently, Mr Fitzgerald stated that at the time of his review of the CC plans he was of the opinion that they were consistent with the approved plans even though he did not have a copy of them (T17/08/11 50.24-50.28). This is because he relied upon what Mr Ridley Smith had told him. Mr Fitzgerald agreed that the inconsistencies between the CC plans and the approved plans could not be described as "minor changes".

1. Because of evidence given in cross-examination by Mr Ridley Smith (discussed in detail below), Mr Fitzgerald was recalled for further cross-examination. In particular, Mr Fitzgerald was asked whether or not he recalled Mr Ridley Smith personally attending his office and giving him a full set of the approved plans as Mr Ridley Smith claimed he had. Mr Fitzgerald could not recall any such meeting nor could he recall ever discussing any changes to the approved plans. Mr Fitzgerald conceded, however, the possibility that he could have received the approved plans electronically.

1. Although these proceedings do not concern the patently unlawful behaviour of Mr Fitzgerald, his actions nevertheless warrant adverse comment. On the evidence Mr Fitzgerald's conduct was, at best, grossly negligent insofar as he issued the construction certificate in the absence of having examined a full set of the approved plans. In the circumstances, there was, in effect, no certification process undertaken by him whatsoever. His conduct deserves reprobation in the strongest terms.

1. But having said this, I accept, for reasons explained in more detail below, the evidence he gave concerning the conversations he had, and more importantly did not have, with Mr Ridley Smith.

Mr Ridley Smith, the Architect

1. Given the central importance of his evidence, it is necessary to discuss in detail the evidence of Mr Ridley Smith. A summary of his written evidence is as follows:

(a) in relation to the pergola and boundary adjustment - Mr Ridley Smith had conversations with Mr Perini during which he told Mr Perini that he would need approval to roof the pergola area by way of a s 96 modification application but that the application would be unlikely to be approved due to the further reduction in the landscaped area. Mr Ridley Smith prepared construction certificate plans in respect of the consent that had been granted. However, Mr Perini requested him to prepare a second set of plans "showing the roofed pergola, pool and pool equipment room with the boundary and carport moved west". These plans were prepared and given to Mr Perini;

(b) in respect of the pool - Mr Ridley Smith acknowledged that he had had discussions with Mr Pickles who had stated that the pool and pool equipment room had to be deleted for the proposed development to comply with the landscaped area control in the LEP. Mr Ridley Smith went on to state that Mr Pickles later told him that although the proposal with the inclusion of the pool and pool equipment room could not be approved, there was likely to be a new LEP that would change the landscaped area controls and that the pool may then become permissible. This was told to Mr Perini who subsequently instructed him to prepare amended plans to delete the pool and pool equipment room. It was these revised DA drawings that were approved by the council. And at the time of the construction of the carport a discussion took place between himself, the builder and Mr Perini whereby Mr Ridley Smith suggested that the plumbing for the pool and the adjusted carport foundations could be built so that if approval was obtained later for the construction of a pool, the infrastructure would already be there. Mr Ridley Smith stated, however, that he reiterated to Mr Perini that he would need to get approval from the council for the pool and the pool equipment room. The following conversation took place:

PP: Just start building the pool and I will cover it over with earth if I don't get approval.

RS: You need to get approval to build the pool Peter.

PP: Please start the drawings Ridley, I will take full responsibility for the pool.

Hence Mr Ridley Smith prepared plans showing the pool, pool equipment room and carport and gave those plans to Mr Perini. He states that he was initially unaware that construction had begun on the pool and pool equipment room. When this fact was discovered he told Mr Perini that he should not have started construction on the pool and Mr Perini restated his intention to fill in the pool or turn it into a water retention tank if approval was not forthcoming. According to Mr Ridley Smith, it was Mr Perini who authorised and directed the construction of the pool and the pool equipment room;

(c) in relation to the roof form - the development as approved contained a sloping Kliplock roof with a flat rectangular section at the central apex. It was Mr Perini who suggested changing the form of the roof because he did not like the flat component. He wanted a pitched room made from zinc. He instructed Mr Ridley Smith to prepare amended plans. Mr Ridley Smith informed Mr Perini that "I am not sure whether we can change the pitch of the roof or its height. I will contact Paul Fitzgerald and ask him". Mr Fitzgerald told Mr Ridley Smith that "provided that the eaves stay at the same level and location and provided the height of the roof isn't altered by more than 1m, then its fine to change". Mr Ridley Smith also contacted another certifier to ask his opinion and this certifier confirmed Mr Fitzgerald's advice. Thus a discussion was had with a zinc contractor who advised on the degree of pitch necessary for the zinc roofing to be a viable material to use. The pitch increased the ridge height of the roof on the plans by approximately 750mm and ultimately the roof increased in height by approximately one metre upon completion;

(d) in relation to the chamfer or splay - Mr Ridley Smith stated that it was Mr Perini who instructed him to reinstate the corner to the top floor (the lounge room). Upon Mr Ridley Smith enquiring as to whether or not Mr Perini had spoken to Mrs Nelson about the change Mr Perini stated "yes I have. Now that she can see the building taking shape she said that she didn't have a problem with it". Mr Ridley Smith states that he relied on Mr Perini's advice in this regard and prepared new drawings showing the deletion of the splay;

(e) in respect of the lift well and excavation - Mr Ridley Smith stated that he wanted the lift well to go all the way down to sea level in order to construct two additional storeys beneath the basement. Discussions as to how this could be achieved ensued. A meeting took place on the property between Mr Fitzgerald, Mr Perini and himself. The purpose of the meeting was to discuss the lift shaft and the level of the billiard room floor because the builder had advised that if the development was built according to the approved plans then there would be a gap between the sandstone bedrock and the floor of the billiard room. An amendment to the plans showing a lower floor level to be flush with the bedrock was requested and directed by Mr Perini. According to Mr Ridley Smith, the lowering of the billiard room floor resulted from the lower than anticipated level of bedrock underneath the proposed floor. It was not the subject of a modification application because the advice from Mr Fitzgerald was that none was required because the changes were all below ground. In addition, during the excavation of the site the builder found additional space at the rear of the proposed dwelling and he suggested that the plans be amended to provide further additional usable space in this location. Mr Ridley Smith prepared amended plans to reflect these changes but did not seek approval from the council because he had been advised by Mr Fitzgerald that approval was not needed because the changes were underground; and

(f) in relation to the amendments to the plans generally - it was his evidence that all changes to the approved development were made at the express request of Mr Perini. Usually these requests were made at meetings on the property. Occasionally, the requests were communicated to him by Mr Francis Grill, the interior designer on the project. Typically Mr Perini said "I will take full responsibility", in respect of the changes to the plans that Mr Ridley Smith advised would require approval. Mr Ridley Smith's evidence was that he advised Mr Perini that changes to the development as approved would require further approval. This included the construction of the carport, the pool room, the pool and the roofing of the pergola.

1. Finally, Mr Ridley Smith stated that in respect of some of the unlawful works he had expressed the view in discussions with Mr Perini that they were sufficiently minor that they would not be likely to require council approval. In particular, he recalls expressing this opinion in respect of:

(a) the additional excavation and corresponding increase in the building footprint;

(b) the lowering of the first and second floor levels;

(c) the change to the roof shape; and

(d) the increase in the central ridge height of the dwelling.

1. Mr Ridley Smith was extensively cross-examined over two days. It is perhaps an understatement to say that overall the cross-examination did not reflect well on his credit.

1. His questioning revealed that:

(a) he had known Mr and Mrs Perini for "many years, from the beginning of the 80s" (T17/08/11 55.14);

(b) it was his suggestion that Mr and Mrs Perini engage an accredited private certifier, in particular, Mr Fitzgerald;

(c) he prepared the CC plans;

(d) he knew from his experience as a senior architect in the profession that the CC plans were not to be inconsistent with the approved plans. However, this depended on how you interpreted the word "consistent". It was Mr Ridley Smith's opinion that the EPAA permitted insignificant differences between the two sets of plans (T17/08/11 60-60.17);

(e) he forwarded to Mr Fitzgerald all of the approved plans. This occurred through Mr Derek Mah, a senior staff member of the firm, who confirmed to him that he had sent the documents. He noted that Mr Fitzgerald had at no time contacted him complaining that he had not received the approved plans and therefore could not prepare a construction certificate;

(f) prior to Mr Fitzgerald issuing the construction certificate he told Mr Fitzgerald that there were a number of differences between the approved plans and the CC plans (T17/08/11 77.15). He agreed, however, that these discussions were not referred to by him in his affidavit. Similarly, he did not tell the council in his letter of 16 September 2009 of these conversations;

(g) prior to Mr Fizgerald issuing the construction certificate he recalled going to Mr Fitzgerald's office and personally delivering the CC plans and the approved plans to him (T17/08/11 78.26-79.26). Again, he agreed that there was no reference to the delivery of these documents contained in his affidavit;

(h) prior to submitting the CC plans for consideration to Mr Fitzgerald he explained the changes with Mr and Mrs Perini and said that some of the changes "might" require a s 96 approval, especially the roofing of the pergola (T17/08/11 86.46-87.34);

(i) he discussed whether or not the proposed changes required s 96 modification approval with Mr Fitzgerald over the telephone (T17/08/11 88.40). Mr Fitzgerald told him that if the changes were internal then it did not matter and if the changes were visible externally, provided they had no impact upon any neighbour, approval would not be required (T17/08/11 90.33-91.46). Mr Fitzgerald advised him that in respect of the proposed lift alteration, such an alteration would require a s 96 modification application. Accordingly, Mr Perini instructed his firm to prepare the application, which was ultimately refused by the council;

(j) the reason why he had omitted to mention the fact in his affidavit that the external walls to the dwelling could be increased in height by up to one metre in certain sections was because he rushed and hurried in the preparation of his affidavit as he had to attend an important meeting in Ethiopia. Moreover, at the time of signing his affidavit he was feeling ill (T17/08/11 93.1-94.11);

(k) he denied having told Mr Perini that in respect of certain alterations requiring modification approval, this work could be commenced and retrospective approval could be obtained from the council once the proposed changes to the LEP were promulgated;

(l) Mr Pickles had told him that the splay could be slightly reduced;

(m) he formed the view by the time he submitted the CC plans to Mr Fitzgerald that all of the changes made in the CC plans would not require council approval. Mr Fitzgerald agreed with him. He communicated this to Mr Perini and it was on this basis that the construction certificate was sought and obtained;

(n) he agreed that, contrary to what he had stated in his affidavit, Mr Perini did not instruct him to prepare a set of plans showing "the roofed pergola";

(o) it was only after the construction certificate was issued that Mr Perini requested him to prepare a second set of plans showing the retention of the pool and pool equipment room;

(p) he did not agree that the notes of the in-house meeting dated 9 February 2010 were accurate. In particular, he denied ever discussing the pool;

(q) he was adamant that he had told Mr Perini that the pool would require a separate development application. It therefore took him by surprise when he arrived on the property one day to observe that construction of the pool had begun. The only instructions given by him to the builder, Mr Dickson, were to construct the plumbing for the pool because the wall of the carport and the wall of the proposed pool were contiguous and it made sense to install the plumbing while constructing the wall of the carport. It was Mr Perini who gave all instructions to the builder, Mr Dickson, to build the pool;

(r) he persisted in his denial that he instructed Mr Dickson to build the pool or any part of the pool other than the plumbing, even in the face of diary notes of Mr Mah depicting, for example, a drawing of the tank of the pool with water in it and notes detailing the construction of the pool. It was his evidence that these drawings and notes were created because the architects were asked to design the pool in readiness for approval;

(s) he denied stating that his dealings with council were "a game", notwithstanding that there was a comment to this effect in Mr Mah's diary notes;

(t) he corrected his affidavit insofar as Mr Perini instructed him to change the specification of the roof to zinc prior to the finalisation of the approved plans. It was Mr Ridley Smith who, during the course of the work, redesigned the shape of the roof by increasing its overall height by raising it by approximately 0.75m. He initially thought that the height had been increased to 16.9m and in fact it was not until the subsequent s 34 conciliation conference that it was discovered by Mr Perini and himself that the roof had been built to a height of 17.4m;

(u) he discussed the 300mm deviation in the height of the garage with Mr Perini and told him that the deviation was not unreasonable. He agreed that Mr Perini followed this advice (T18/08/11 55.41-56.4); and

(v) similarly, he recalled discussing the deletion of the chamfer to the north east corner of the upper living room level with Mr Perini and advising Mr Perini that its deletion was not unreasonable and would not require s 96 modification approval. But he stated that Mr Perini would need to check with Mrs Nelson, the next door neighbour, to ascertain if she agreed to the deletion (T18/08/11 56.6-56.45).

1. With one exception, I am unable to accept Mr Ridley Smith's evidence in the absence of corroboration or objective confirmation. The reasons for this are as follows. First, I was troubled by the number of significant inconsistencies between his oral evidence and his written evidence, the most central of which was that he did not, through Mr Mah, send the approved plans to Mr Fitzgerald as stated in his affidavit, rather he personally delivered them to him. I have no hesitation in finding that this did not occur but was recently invented by Mr Ridley Smith during cross-examination. Second, there were a number of critical omissions from his affidavit, which were revealed by Mr Ridley Smith for the first time during his oral evidence. It is, for example, unbelievable that he would not have stated in his affidavit that he had told Mr Fitzgerald of the inconsistencies between the CC plans and the approved plans. That no conversation took place is consistent with this fact being omitted from his explanatory letter to the council dated 16 September 2009. I do not accept that the inconsistencies and omissions in his affidavit were the product of Mr Ridley Smith being rushed or ill during its preparation. Given the importance of his testimony it is inconceivable that he would not have raised any issue that he had with the content of his affidavit with the lawyers preparing it. Third, during cross-examination Mr Ridley Smith was frequently unresponsive and sought, at every opportunity, to exculpate himself. At no point was he willing to accept any blame for the part that he plainly played in the breach of the consent by Mr Perini. This is so notwithstanding that he knew that the CC plans, the approved plans and the working plans all materially differed. That is to say, differed in ways that could not be described as insignificant, and therefore, even on Mr Ridley Smith's own evidence, were in breach of the EPAA.

1. The one exception is the construction of the pool. I accept beyond all reasonable doubt that Mr Ridley Smith clearly communicated to Mr Perini that approval would be required to build the pool and that it was Mr Perini, who, in the face of this advice nevertheless proceeded with its construction in the absence of such consent.

Mr Perini's Reliance on Mr Ridley Smith

1. It was Mr Perini's position, vigorously maintained throughout the hearing, that while he was ultimately responsible for the changes to the development resulting in these proceedings, that is to say, the unlawful works, he had relied at all times on Mr Ridley Smith and the architects for advice in relation to the design and construction of the dwelling on the property.

1. It was clear that Mr Ridley Smith is an eminent and highly qualified architect with a distinguished career, who had been known to Mr Perini and his wife for many years. Accordingly, a factual dispute arose as to the extent of any reliance by Mr Perini upon the advice given by Mr Ridley Smith; the content of that advice; and the extent of any departure from it by Mr Perini.

1. The dispute is central to the proceedings because it was Mr Perini's submission that at no time did he intend to break the law, and to the extent that he did, he acted unknowingly. By contrast, although the council accepted that in relation to some of the unlawful works it was likely that Mr Perini was told either by Mr Ridley Smith or Mr Fitzgerald that amendment could be made to the approved plans without the necessity for further consent, in relation to the pool and the pool equipment room, the height of the roof, the height of the carport and the splay, the council submitted that Mr Perini knew consent was required in order to carry out these works and that he was willing to take the risk involved in carrying out those unlawful works at the time he authorised them. One of the bases upon which it was submitted that Mr Perini knew that consent was needed for these works was because he was aware that these items were required to be sacrificed from the original design of the development in order to procure the consent from the council.

Evidence on Behalf of Mr Perini

1. In addition to two affidavits sworn by himself, Mr Perini also relied on an affidavit sworn by his wife Ms Rosslyn Sue Perini (known as "Sue Perini") sworn 18 August 2011, Mr Francis Grill affirmed 28 April 2011 and Mr John Dickson sworn 19 April 2011.

Mr Grill, the Interior Designer

1. Mr Grill stated that he recalled many meetings during which the changes to the design of the house were discussed, including the construction of the swimming pool adjacent to the carport and the splay corner. It was his evidence that he did not recall at any time during these meetings Mr Ridley Smith, or any person from his office, advising or stating that these changes required the consent of the council.

1. More specifically, Mr Grill recalled that on one occasion the construction of the pool was discussed at a meeting on site with Mr Perini. Mr Ridley Smith was not present at the meeting. He recalled discussing the fact that the excavation machine was onsite at the time and that there was therefore utility in excavating the pool while the machine was present, due to the difficulty of accessing the site. He recalled telling Mr Perini at the time that the pool would require the lodgement of a s 96 modification application. He also recalled Mr Perini telling him that if approval was not forthcoming for the pool that he would utilise it as a rainwater storage tank.

Mr Dickson, the Builder

1. The evidence of Mr Dickson was not dissimilar. In particular, he stated that he never heard Mr Ridley Smith say to Mr Perini that a suggested change could not be effected. But he did recall Mr Perini asking Mr Ridley Smith whether the additional excavation under the house for the lift shaft and the pool required consent. Mr Ridley Smith advised him that they did not. Mr Dickson specifically recalled Mr Mah raising concerns about the changes to the roof shape. Mr Mah queried whether or not the alterations were permissible, to which Mr Ridley Smith responded that they were "within allowable limits". It was Mr Dickson's impression that Mr Perini relied on the advice of Mr Ridley Smith.

1. Mr Dickson gave oral evidence in addition to his written evidence. He stated that he took directions from "mostly" Mr Ridley Smith.

1. Mr Dickson was cross-examined. He accepted that he had not attended all of the meetings between Mr Perini and Mr Ridley Smith. He agreed that during the discussion between himself, Mr Ridley Smith and Mr Perini regarding the increase to the height of the roof, Mr Perini was made aware of the risk that increasing the height would breach the development consent, but that Mr Perini appeared to be willing to accept that risk.

Mrs Perini

1. In her affidavit, Mrs Perini recalled Mr Fitzgerald stating that variations could be made as long as they did not interfere with the safety of the site and the amenity of the neighbours.

1. She deposed to the fact that she and her husband have known Mr Ridley Smith for approximately 20 years. She described him as a "trusted adviser" in relation to building, design and construction matters. It was her evidence that if she and her husband were considering a change to any part of the proposed development, she would ask Mr Ridley Smith if it was permissible and his usual response was "no problem". She could not recall a single occasion upon which he had said to her that a proposed amendment would require council approval, other than for the pool and pool equipment room. In this regard, she stated that she recalled him telling her that approval for the pool and pool equipment room could be dealt with after completion of the works, that is to say retrospectively. Specifically in relation to the pool, it was her understanding that an approval could be sought following the anticipated change to the LEP. Accordingly, the hole for the pool was dug and it was her understanding that if the pool was not approved, it would be used for underground water retention.

1. She stated that at the time the building project was initially proposed by herself and her husband, they were intending to spend approximately $6 million of which $4.75 million was for construction.

1. In answer to Mr Ridley Smith's evidence, she further deposed to the following:

(a) she denied that the changes to the development as approved were made at their request;

(b) it was Mr Ridley Smith who informed Mr Perini that the chamfer could be deleted. There was no mention whatsoever of Mrs Nelson having to give consent to its deletion;

(c) the change to the roof was not initiated by Mr Perini, but was initiated by Mr Ridley Smith. In relation to the change in the roof height, it was not until the s 34 conference before the Court (in the proceedings before Tuor C) that she learnt for the first time that the permitted roof height had been exceeded;

(d) it was Mr Ridley Smith who suggested increasing the floor to ceiling heights;

(e) she expressed her remorse at the events leading up to the Court proceedings. She stated that she and her husband had "spent a large sum of money and have lost a lot of critical time whilst the building project has been stalled, rectifying the site problems the subject of these proceedings". Furthermore, she did not understand at any time of the carrying out of the work that "we were doing anything illegal";

(f) although she understood that some of the work required further approval, she believed that this could be obtained retrospectively;

(g) she noted the close working relationship she and her husband had had with Mr Ridley Smith over the years and was distressed that the relationship had been "terminated"; and

(h) at all times she and her husband had relied on the architects. Neither her nor her husband were "experienced in building".

1. Mrs Perini gave further oral evidence. She stated that she had regular meetings between herself, Mr Perini and Mr Ridley Smith in relation to the project. Mr Mah was present at many of these meetings, together with Mr Dickson and Mr Grill. During the meetings she and her husband authorised changes to the construction of the dwelling, however, she was never aware that these changes would place her or her husband in breach of the law.

1. Finally, Mrs Perini gave evidence of the enormous stress that the proceedings had caused Mr Perini.

1. During cross-examination Mrs Perini denied ever having a conversation with Mrs Nelson about whether she had any concerns about the squaring off of the splay on the upper level of the building.

1. Mrs Perini stated the following in relation to the construction of the shell of the pool (T19/08/11 44.27-44.29):

Q. Did you know that when you built the shell of the pool, that made it not comply?

A. Yes.

This was because Mr and Mrs Perini were prepared to convert the pool shell into an underground storage tank if approval was not forthcoming from the council or, if that was not permitted, it was their intention to remove the shell of the pool. Mrs Perini stated that she had received advice to this effect from one of the experts, but she could not recall who. Significantly, Mrs Perini accepted that having been told not to build the swimming pool they had nevertheless decided "to do it anyway" (T19/08/11 46.28).

Mr Perini

1. The inexperience of Mr and Mrs Perini in managing building projects was reinforced by Mr Perini in his affidavit sworn 19 April 2011.

1. Mr Perini outlined the history of his decision to build a residential dwelling on the property. Originally, the plan to build a residential dwelling was conceived in 1982. Mr Perini engaged Mr Ridley Smith to prepare plans. The project was approved but did not proceed. In 2003 Mr Perini again decided to develop the property for residential purposes. The first development application was refused because the proposal did not comply with the existing foreshore building line. After amendments were made to alter the foreshore building line, a new DA, the DA the subject of these proceedings, was lodged with the Council in 2007.

1. Shortly after the DA was lodged, Mr Pickles spoke to Mr Ridley Smith indicating that the insufficient landscaped area shown in the DA would not be approved, however, if the pool was deleted it would comply. Mr Pickles told Mr Ridley Smith that the council were going to amend their LEP to decrease the landscaped area requirements. An application to include a pool could therefore be made at that time. On this basis, Mr Perini agreed to delete the pool from the plans, which is what occurred.

1. It was Mr Ridley Smith who advised Mr Perini to engage Mr Fitzgerald on the basis he was "very reasonable in his approach to variations to the DA". Following the granting of the consent, Mr Perini met Mr Fitzgerald on site. In particular he discussed with Mr Fitzgerald the proposed lift shaft extension, the ceiling heights and the lowering of the billiard room floor level. It was at this meeting that Mr Fitzgerald said, "variations can be made to the approved plans as long as they do not interfere with the amenity of the neighbours or the safety of the site".

1. Regular meetings took place between himself, Mr Ridley Smith and the builder. At these meetings, variations were discussed and agreed upon. Following the meetings, Mr Ridley Smith would prepare plans to give effect to the agreed variations. In particular, Mr Perini met with Mr Ridley Smith and the builder to prepare plans for the moving of the garage, the construction of a swimming pool adjacent to the garage and a pool equipment room and garden shed at the rear of the garage. Mr Perini stated that it was agreed that these changes could be effected. He assumed that approval from the council would not be needed having regard to Mr Fitzgerald's earlier advice. According to Mr Perini, Mr Ridley Smith informed him that he had "no doubt that the Council would approve a pool adjacent to the garage". Mr Perini understood that Mr Ridley Smith had formed this opinion following discussions with Mr Pickles concerning the imminent changes to the LEP.

1. In reliance upon what he had been told by Mr Ridley Smith, in May 2008, when the foundations for the house were being excavated, an area to accommodate the pool was also dug out adjacent to the garage. Mr Perini stated that he intended to seek approval for the pool following the amendment of the LEP. In the event that the approval was not obtained from council he intended to use the excavated area as a rainwater tank.

1. During the excavation of the site, the builder found additional space at the rear of the proposed dwelling. He suggested that the plans be amended to provide further additional use in this location. Mr Ridley Smith prepared amended plans to accommodate this change. He did not tell Mr Perini that these amendments would require council approval. Similarly, he did not tell Mr Perini that enclosing the pergola would require council approval. To the contrary, Mr Ridley Smith indicated to Mr Perini that there would be "no problem" in this regard. Indeed, in respect of each of the unlawful works proposed Mr Ridley Smith prepared amended plans to deal with the variations and he would inform Mr Perini that as long as the changes did not affect anybody they "could be done". Mr Perini conceded, however, that "he did not tell me at any time that the Council's approval was required other than for the swimming pool". Mr Perini specifically recalled Mr Ridley Smith saying to him in relation to variations to the roof height that "anything under a metre" was acceptable to the council.

1. In relation to the letter from Mr Ridley Smith to the council dated 16 September 2009, Mr Perini stated that:

(a) Mr Ridley Smith had told him about the discussions that he had had with Mr Pickles regarding changes to the council's landscaped area requirements in the LEP. He agreed "that the question of a swimming pool was to be delayed until such changes were adopted by Council";

(b) he denied that he had asked Mr Ridley Smith to prepare two sets of plans;

(c) he was not aware that plans reflecting amendments made to the approved plans required the approval of the council;

(d) he denied that Mr Ridley Smith advised him that he would require a modification application in relation to the changes to the pergola or that the application could be lodged after the work had been completed. It was Mr Perini's belief that these changes did not require approval;

(e) he did not know what plans had been sent to Mr Fitzgerald; and

(f) he did not deny that all of the changes to the property arose either from discussions between himself and the builder or discussions between himself and Mr Ridley Smith.

1. Mr Perini accepted that:

(a) the changes made to the approved development were "suggested by me"; and

(b) he "knew that the swimming pool required development consent".

But he went on to say that at all times he relied on statements made by Mr Ridley Smith and Mr Fitzgerald that there would be "no problem" and that there was no need for any further approval for the changes from the council. Had he known that approval was necessary, then he would have obtained it.

1. Finally, Mr Perini expressed his unreserved sorrow for committing the offence and for the inconvenience caused, and accepted full responsibility for undertaking development otherwise than in accordance with the consent.

1. In relation to the increased height of the carport or garage, I accept Mr Perini's evidence that Mr Ridley Smith did not communicate to him that the alteration required approval and that he was not aware of the need for additional consent by the council at the time he authorised the change, even if the modification was at his request. Again, he relied on the advice of his trusted architect.

1. A similar conclusion must be reached in relation to the unapproved excavation. I accept Mr Perini's evidence that he believed that, irrespective of the source of the erroneous information and regardless of whose suggestion it was to further excavate, because the works were below ground approval from the council was not required.

1. The splay is more problematic insofar as the evidence in this regard is equivocal. It is clear to me that despite his testimony to the contrary, it was Mr Perini, and not Mr Ridley Smith, who suggested the alterations to the approved splay. It is also clear that Mr Perini's state of mind when he authorised the changes to the mandated chamfer was that, consistent with his evidence, provided that the modifications did not affect the amenity of any neighbour, in this instance Mrs Nelson, approval would not be necessary. While Mr Ridley Smith may have told Mr Perini that it could be deleted or reduced, it was only on this basis.

1. What is not obvious, however, is whether Mr Perini knew at the relevant time that Mrs Nelson had not acquiesced to the changes. I find that Mr Perini did not personally ascertain whether or not Mrs Nelson approved of the changes. This is consistent with Mrs Nelson's evidence. It was Mr Perini's evidence that his wife told him that Mrs Nelson consented to the changes. But Mrs Perini denied having a conversation with Mrs Nelson on this topic. Plainly her evidence is inconsistent with that of Mrs Nelson. In the absence of any cross-examination, I accept Mrs Nelson's evidence. What remains unknown is whether Mrs Perini told Mr Perini of this conversation. There being no direct evidence on this factual question it falls to be determined indirectly as a matter of inference. Although Mr Perini referred frequently to the decision-making "troika" of himself, his wife and Mr Ridley Smith, I nevertheless cannot find beyond reasonable doubt that Mrs Perini told him of Mrs Nelson's refusal to accept the proposed amendments to the north eastern corner of the building. It follows that I cannot find that, at the time Mr Perini authorised this unlawful work, he did so deliberately. In this regard, his state of mind may be more accurately described as reckless or negligent insofar as he did not take adequate, or any, steps to inform himself of whether or not Mrs Nelson agreed to the changes to the chamfer.

1. In relation to the construction of the pool and pool equipment room, however, there can be no doubt whatsoever that at the time Mr Perini authorised the excavation of the pit for the pool and the construction of the shell, he was aware that he needed approval from the council to engage in these works. The evidence (of Mr Ridley Smith, Mr Fitzgerald, Mr Dickson, Mr Grill and, importantly, Mr Perini) was overwhelmingly consistent in this regard.

1. I accept the submission of the council that Mr Perini knew, as the council had maintained throughout, that a pool would not be approved as part of the development, but that he was determined to have one. While he may have had the hope and even the expectation that approval would be subsequently granted once the changes to the LEP were made, he nevertheless knew at the time the unlawful pool works were carried out that approval was required and had not been obtained. In this regard his actions were deliberate and intentional. Although his stated intention had approval not been forthcoming was to use the pit and shell as a water storage tank, this was irrelevant to his state of mind at the time of the commission of these unlawful works. At that moment, he knew that approval was required; he knew that approval was absent; and he knew that the position of the council to date was, irrespective of what Mr Pickles had communicated to him, to refuse permission for the construction of a pool. Notwithstanding this knowledge, he went ahead and authorised the excavation and partial construction of the pool. This increases the objective seriousness of the commission of the offence.

Reasons for the Commission of the Offence

1. A factor by which the objective seriousness of an offence may be augmented is the reasons for its commission (Axer Pty Ltd v Environment Protection Authority (1993) 113 LGERA 357 at 366; Bentley at [237]; Gittany at [140] and Rae at [47]). If the offence is found to be committed for financial gain this will increase its objective seriousness (Gittany at [141]; Bentley at [246]-[247]; Scahill at [82] and CSPA s 21A(2)(o)).

1. The evidence does not disclose that Mr Perini was motivated by financial gain in committing the offence. Rather, it appears that Mr Perini authorised the construction of the dwelling in a manner contrary to the terms of the consent because he desired a house with these features. His motivation was not financial it was aesthetic. Nowhere was this more evident than Mr Perini's desire to build the pool. As he stated during cross-examination, "yeah, well a multimillion dollar house sitting on a waterfront without a swimming pool is, it doesn't make sense to me."

Foreseeability of the Risk of Harm

1. The extent to which Mr Perini could reasonably have foreseen the harm caused by the commission of the offence is a relevant factor to be taken into account in the determination of the sentence (Rawson at [48]).

1. Having regard to the circumstances surrounding the construction of the dwelling as found above, Mr Perini could reasonably have foreseen that to construct the house in a manner contrary to the terms of the consent would cause harm to the integrity of the planning system.

1. But notwithstanding that it was reasonably foreseeable that engaging in development contrary to the terms of the consent would result in environmental harm in the manner described above, this finding must be qualified by Mr Perini's reliance on Mr Ridley Smith's expertise during the project. Mr Perini trusted Mr Ridley Smith to advise him on those alterations and changes that required approval and those that did not. With the exception of the pool and pool equipment room, and to a lesser extent the splay, Mr Perini by and large followed Mr Ridley Smith's advice, which was generally to the effect that the proposed modifications would pose "no problem".

1. Although Mr Perini's reliance on Mr Ridley Smith does not serve to wholly exonerate him, given his inexperience in development matters, it does serve to diminish the foreseeability of the risk of harm caused by the commission of the offence and thereby lessen the objective seriousness of his unlawful act in all the circumstances.

1. In relation to the pool, however, Mr Perini was plainly told that the construction of this item would need consent. By ignoring this advice and proceeding to excavate the pit and shell for the pool, the harm caused by him was entirely foreseeable. Similarly, in relation to the chamfer, it was readily foreseeable that if he did not positively ascertain Mrs Nelson's attitude to the changes to the splay, that the risk of harm would be augmented.

Practical Measures to Prevent Harm

1. Somewhat tritely, Mr Perini could have prevented the harm caused by his unlawful behaviour by constructing the dwelling in accordance with the original consent or as modified with approval rather than being content to carry out changes first and seek permission later.

1. Again, his reliance on Mr Ridley Smith (and to a lesser extent, the private certifying authority, Mr Fitzgerald) cannot be ignored in this context. Mr Perini did take practical measures to prevent the harm by engaging an architect (and certifier) to advise him during the development. His culpability cannot be equated with that of a person who took no steps to ensure compliance with the consent.

1. But this qualification plainly does not apply to his decision to proceed with the building of the pool and, albeit to a lesser extent, the alterations to the chamfer. On any view, he could and should not have commenced construction of the pool until such time as the council granted him approval to build it and he should not have authorised changes to the splay until such time as he knew that Mrs Nelson's consent had been obtained. He did neither.

Control Over the Causes of Harm

1. Although Mr Dickson's evidence was that he principally took directions from Mr Ridley Smith, Mr Perini did not dispute that he was the person who, albeit after discussion with his wife and Mr Ridley Smith, authorised all aspects of the development on the property, including any changes made to the project as approved by the council. As such I find that Mr Perini had complete control over the events that gave rise to the offence and caused the ensuing harm to the environment.

The Offence is of Low Objective Gravity

1. Having regard to the factors discussed above, and in particular allowing for the limited degree of harm caused by the commission of the offence, I find that the offence committed is of low objective gravity.

Subjective Circumstances of Mr Perini

1. A proportionate sentence requires the Court to take into account any mitigating factors that are personal to Mr Perini (Rae at [55] and s 21A(3) of the CSPA).

1. The subjective circumstances of Mr Perini to be considered include:

(a) whether Mr Perini has a prior criminal record (s 21A(3)(e) of the CSPA);

(b) whether Mr Perini is of good character (s 21A(3)(f) of the CSPA);

(c) whether Mr Perini is unlikely to re-offend (s 21A(3)(g) of the CSPA);

(d) whether, and if so when, Mr Perini entered his plea of guilty (ss 21A(3)(k) and 22 of the CSPA);

(e) whether Mr Perini has demonstrated contrition and remorse for the commission of the offence (s 21A(3)(i) of the CSPA);

(f) whether Mr Perini cooperated with, and provided assistance to, the council in the investigation and prosecution of the offence (ss 21A(3)(m) and 23 of the CSPA);

(g) whether Mr Perini has agreed to pay the council's legal and investigation costs of the proceedings; and

(h) whether Mr Perini has the financial capacity to pay any likely monetary penalty imposed.

Prior Criminality of Mr Perini

1. Mr Perini has no prior convictions for any offence, environmental or otherwise (s 21A(3)(e) of the CSPA).

The Good Character of Mr Perini

1. I accept, consistent with the testimonials tendered on his behalf and his charitable and philanthropic work in the community, that Mr Perini is a person of good character (s 21A(3)(f) of the CSPA).

Mr Perini's Cooperation

1. As is demonstrated by the filing of an agreed statement of facts in these proceedings, Mr Perini has cooperated with the council in the conduct of this matter (ss 21A(3)(m) and 23 of the CSPA).

1. The council was critical of the limited nature of the statement of agreed facts, which resulted in Mr Perini putting it to proof on some matters, for example, his state of mind at the time of the commission of the offence. However, this criticism was neither fair nor, as it transpired in light of the evidence of Mr Ridley Smith and Mr Fitzgerald, justified.

Early Plea of Guilty

1. Mr Perini pleaded guilty to the offence at the first available opportunity thereby warranting a discount of 25% (R v Thomson; R v Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383 at [152]-[155]; Rae at [63] and ss 21A(3)(k) and 22(1) of the CSPA).

1. The council submitted that the protracted conduct of the sentence hearing by Mr Perini, resulted in the utilitarian value of the plea being severely eroded and he should not be awarded the full discount (R v AB [2011] NSWCCA 229 at [27]-[33] and Abroon at [13] and [125]).

1. I do not agree. The principal reason for the proceedings requiring additional hearing days was the uncooperative nature of Mr Ridley Smith during cross-examination. Mr Perini cannot be blamed for this delay or, as the council suggested, for robustly but fairly presenting his case. These proceedings are very different from those in Abroon where a reduction of the discount was warranted in light of the conduct of the defendant.

The Contrition and Remorse Demonstrated by Mr Perini

1. The contrition and remorse of an offender can be taken into account as a mitigating factor in determining the appropriate sentence for an offence (s 21A(3)(i) of the CSPA). Remorse for the commission of the offence with which Mr Perini has been charged, was expressed by him in his affidavit and orally during cross-examination.

1. However, although I take these statements into account, I cannot give them full weight. This is because I remain unconvinced that Mr Perini fully accepts that the works, and thus his behaviour, was unlawful. This is consistent with the view he expressed to the council at the meeting on 9 February 2010, the notes of which I accept are accurate, and his unwillingness to demolish any of the impugned works. Instead he has sought to regularise them after the event. Thus he referred in cross-examination to the "so-called unauthorised works" and his expression of regret was tethered primarily to the stress and strain that the proceedings had caused him financially and emotionally. In short, his contrition did not appear to be wholly genuine.

Mr Perini is Not Likely to Re-offend

1. Despite his reluctance to wholly embrace the unlawfulness of his actions, I nevertheless find that Mr Perini is unlikely to re-offend in light of his age and the trauma that these proceedings have caused him (s 21A(3)(g) of the CSPA).

Costs

1. There is no question that this Court is empowered to order an offender to pay the prosecutor's legal and investigation costs of the proceedings (as specified or as may be determined pursuant to ss 257B and 257G of the Criminal Procedure Act 1986).

1. The payment of a prosecutor's costs is an aspect of punishment (Environment Protection Authority v Barnes [2006] NSWCCA 246 at [78] and Rae at [68]) and may be considered in the determination of the appropriate penalty, including as a factor that acts in the reduction of any penalty to be imposed.

1. Mr Perini has agreed to pay the prosecutor's reasonable costs of the proceedings as agreed or assessed. He rails, however, against an order that he be made to pay the costs of the prosecutor estimated to be approximately $124,000. No evidence was provided to the Court to verify this amount.

1. Given the length of the hearing and the volume of evidence prepared and relied upon by both parties, this cost is regrettable but unremarkable. In any event, the Court will not order Mr Perini to pay costs fixed in this or any amount absent agreement as to the quantum of the costs by the parties. Rather, the costs will be determined in the normal course by way of assessment pursuant to s 257G of the Criminal Procedure Act.

1. The council submitted that the payment of the costs of the proceedings is a consequence of the commission of the offence and that therefore no reduction in the amount of any fine imposed should be countenanced by reason of any order to pay costs (citing Environment Protection Authority v Ramsey Food Processing Pty Ltd [2010] NSWLEC 23 at [187]-[189] and Minister for Planning v Moolarben Coal Mines Pty Ltd [2010] NSWLEC 147; (2010) 175 LGERA 93 at [94]).

1. But those cases merely stand for the rejection of the proposition that a substantial costs order could result in a commensurate reduction in the amount of any fine awarded. They are not authority for the proposition that payment of costs, particularly where agreed to by the defendant, cannot be taken into account in determining the appropriate penalty to be imposed.

1. In the present case the costs, while unknown, are likely, it may be readily inferred, to be substantial.

Mr Perini's Financial Capacity to Pay a Fine

1. There was no evidence before the Court to suggest that Mr Perini did not have the means to pay any fine ordered. To the contrary, the evidence demonstrated, in my view, that Mr Perini was a man of considerable means.

1. Although Mr Perini had borrowed the funds to carry out the development and had incurred financial penalties caused by the delay in finalising the project occasioned by these proceedings, there was no suggestion that s 6 of the Fines Act 1996 is engaged so as to warrant reducing the amount of any monetary penalty.

Conclusion on Subjective Circumstances

1. The subjective circumstances of Mr Perini operate to mitigate the penalty to be imposed to a reasonable degree.

The Appropriate Sentence to be Imposed on Mr Perini

1. The imposition of a sentence serves a number of purposes. As s 3A of the CSPA sets out, these purposes include retribution and denunciation, as well as deterrence, both specific and general.

Deterrence, Denunciation and Retribution

1. The sentence of this Court is a public denunciation of Mr Perini and must ensure that he is held accountable for his actions and is adequately punished (Rae at [8]-[10]; Plath v Glover [2010] NSWLEC 119 at [67] and ss 3A(a) and (e) of the CSPA).

1. Generally, any penalty imposed must be sufficient to specifically deter the offender from repeating the conduct that resulted in the commission of the offence in the future in the hope that only nominal penalties will be applied. There is also a need for the sentence to have embedded in it an element of general deterrence to promote the objects of the EPAA and to ensure that others engaged in development do not carry out unapproved works (Plath vHunter Valley Property Management Pty Ltd [2010] NSWLEC 264 at [34]; Scahill at [109] and Axer at 367). In Scahill, Preston J appositely stated (at [46]):

46 There is a need for the upholding of the integrity of the system of planning and development control. This system depends on persons taking steps to obey the law by ascertaining when development consent is required and then obtaining development consent before carrying out development: Byron Shire Council v Fletcher [2005] NSWLEC 706; (2005) 143 LGERA 155 at [60]-[61]; Cameron v Eurobodalla Shire Council [2006] NSWLEC 47; (2006) 146 LGERA 349 at [72]-[80]; Byers v Leichhardt Municipal Council [2006] NSWLEC 82 at [83], [85]; Gittany Constructions Pty Ltd v Sutherland Shire Council at [104]; and Garrett v Freeman(No 5) (2009) 164 LGERA 287 at [58]. Development must be carried out in accordance with the terms of the development consent obtained: Gittany Constructions Pty Ltd v Sutherland Shire Council at [105].

1. But as stated above, given Mr Perini's age and the deleterious effect both emotionally and financially that this prosecution has had on him and in light of his general good character, I do not accept that any sentence imposed requires an element of specific deterrence to be embedded within it.

Consistency in Sentencing

1. A relevant consideration in sentencing is the ascertainment of the existence of a general pattern of sentencing by the Court for offences such as the offence in question (Gittany at [179]-[182] and Rae at [69]). The proper approach is for the Court to look at whether the sentence is within the range appropriate to the gravity of the particular offence and to the subjective circumstances of the particular offender, and not whether it is more severe or more lenient than some other sentence which merely forms part of that range (Gittany at [182]).

1. Of course care must be taken because each case is different and a sentence in one case does not demonstrate the limits of a sentencing judge's discretion (Axer at 365; CabonneShire Council v Environment Protection Authority [2001] NSWCCA 280; (2001) 115 LGERA 304 at 312 and Hili v The Queen; Jones v The Queen [2010] HCA 45; (2010) 242 CLR 520 at [54]).

1. For present purposes, the available range of penalties for offences of a similar nature has been usefully summarised in a number of recent decisions of this Court (Council of the Municipality of Kiama v Furlong [2009] NSWLEC 139 at [35]-[41]; Pacific Real Estate (Warilla) at [112]-[115]; Bimbadgen at [99]-[102]; Hurstville City Council v Naumcevski [2011] NSWLEC 226 at [89]-[91] and Abroon at [146]-[151]). For the sake of brevity I do not repeat the details of these cases in full. Suffice it to say that I have had regard to the analyses of comparable sentences referred to in those cases, and I have had regard to the circumstances of those decisions themselves, in determining Mr Perini's penalty.

1. Mr Perini urged me to consider the fact that neither Mr Fitzgerald nor Mr Ridley Smith had been prosecuted by the council and that Mr Fitzgerald had only been fined $1,500 by his professional board, in determining the appropriate sentence to be imposed on him.

1. I neither know why the council has sought to prosecute only Mr Perini nor why Mr Fitzgerald was fined such a paltry amount by his professional body (or in fact why he has been permitted to remain an accredited private certifier given his antecedents). These are matters of prosecutorial discretion about which the Court remains ignorant. The only offender before the Court arising out of the subject matter of these proceedings is Mr Perini. No question of parity with respect to either of these individuals therefore arises in my view.

An Order Under s 10 of the CSPA is Not Appropriate

1. Mr Perini sought an order under s 10(1) of the CSPA that no conviction be recorded against him. This was opposed by the council.

1. Relevantly, s 10(1) of that Act provides the Court with the following discretion in this regard:

10 Dismissal of charges and conditional discharge of offender

(1) Without proceeding to conviction, a court that finds a person guilty of an offence may make any one of the following orders:

(a) an order directing that the relevant charge be dismissed,

(b) an order discharging the person on condition that the person enter into a good behaviour bond for a term not exceeding 2 years,

(c) an order discharging the person on condition that the person enter into an agreement to participate in an intervention program and to comply with any intervention plan arising out of the program.

1. In deciding whether or not to make an order under s 10(1), the Court must have regard to the factors set out in subsection (3):

(3) In deciding whether to make an order referred to in subsection (1), the court is to have regard to the following factors:

(a) the person's character, antecedents, age, health and mental condition,

(b) the trivial nature of the offence,

(c) the extenuating circumstances in which the offence was committed,

(d) any other matter that the court thinks proper to consider.

1. The mandatory factors to which the Court must have regard set out in s 10(3) are not exhaustive (R v Paris [2001] NSWCCA 83 at [42] and s 10(3)(d)) and are disjunctive in operation (R v Paris at [42]).

1. Three initial observations may be made about the scope of s 10 of the CSPA. First, irrespective of s 10(3)(b) of the CSPA, an order under s 10 can apply to offences that are not considered trivial in nature (R v Piccin (No 2) [2001] NSWCCA 323 at [25]; Chin v Ryde City Council [2004] NSWCCA 167; (2004) 133 LGERA 312 at [38] and Terrey v Department of Environment, Climate Change and Water [2011] NSWLEC 141 at [114]).

1. Second, historically at least, an order under s 10 (or its former statutory incarnation, s 556A of the Crimes Act 1900) has been "rare" in the case of environmental offences, including offences concerning a breach of planning laws (Hunter Water Board v State Rail Authority of New South Wales (No 2) (1992) 75 LGRA 22 at 23; Environment Protection Authority v Attard [2000] NSWCCA 242 at [5]; Thorneloe v Filipowski [2001] NSWCCA 213; (2001) 52 NSWLR 60 at [165]-[167]; Menai Excavations at [35]; Newcastle City Council v Pace Farm Egg Products Pty Ltd (No 3) [2005] NSWLEC 423 at [24]; Holroyd City Council v El-Khouri [2008] NSWLEC 83 at [34] and Terrey at [109]).

1. Having said this, the environmental and planning nature of the offence is no bar to the application of s 10 of the CSPA (El-Khouri at [34]; Gerondal v Eurobodalla Shire Council [2009] NSWLEC 160 at [47]-[51] and Parramatta City Council v Cheng [2010] NSWLEC 94 at [41]-[45]).

1. Third, the circumstances in which a s 10 order is appropriate are considered to be limited where the environmental offence is one of strict liability (Blue Mountains City Council v Carlon [2008] NSWLEC 296 at [70]-[71] and Terrey at [110]). However, the fact that the offence in question is an offence of strict liability similarly does not preclude an order being made under the provision (Filipowski v Fratelli D'Amato Srl [2000] NSWLEC 50; (2000) 108 LGERA 88 at [139]; Thorneloe at [171]; Filipowski v Hemina Holdings SA; Filipowski v Rajagopalan (No 2) [2009] NSWLEC 104 at [149]-[153] and Lavorato v R [2012] NSWCCA 61 at [126]).

1. Having regard to the facts of this case, and mindful of the observations above, I refrain from making an order under s 10 of the CSPA because:

(a) as Mr Perini conceded, the offence cannot be considered trivial in nature given the extensive nature of the unlawful works;

(b) although the commission of the offence was in large part occasioned by Mr Perini's erroneous reliance on Mr Ridley Smith's advice (see, for example, Hornsby Shire Council v Devaney [2007] NSWLEC 199 at [80] where a factor resulting in no conviction being recorded was the defendant's reliance on an experienced earthmoving contractor), in one significant instance, namely, construction of the pool, Mr Perini's unlawful conduct was intentional and in defiance of advice from a number of sources that approval was needed for this aspect of the development. And in another instance, namely, the changes to the chamfer, Mr Perini acted recklessly or negligently in authorising the changes absent knowing Mrs Nelson consent to the proposed alternations;

(c) notwithstanding his reliance on the advice of Mr Ridley Smith and Mr Fiztgerald, Mr Perini was ultimately the person responsible for authorising the unlawful works. It is not the case that there was nothing more that he could have done to avoid the commission of the offence in respect of at least two of the five elements of the unlawful works (the pool and the splay). And moreover, from the outset Mr Perini was aware that the unlawful works comprised items that the council required to be initially deleted in order for him to obtain consent. Thus this is not a case where the unlawful works could have come as a complete surprise to Mr Perini given this prior knowledge by him and given that each items was discussed by the "troika" and ultimately authorised by Mr Perini. Put another way, the unlawful works did not come about solely by the unauthorised actions of Mr Ridley Smith or Mr Fitzgerald;

(d) Mr Perini alone stood to benefit from the commission of the offence insofar as he obtained dwelling with the features he desired; and

(e) I remain unconvinced that Mr Perini has accepted that the works, and hence his conduct, were unlawful and that therefore his remorse is entirely genuine.

1. In arriving at this conclusion I have had regard to Mr Perini's advanced age, his reliance on Mr Ridley Smith, the extremely limited likelihood of him re-offending in the future and his otherwise impeccable character. But although these factors militate in favour of making an order under s 10, on balance, a conviction is nevertheless necessary to hold him accountable for his conduct (Menai Excavations at [35] and Scahill at [109]). Hence for the reasons expressed above, I do not consider it an appropriate exercise of my discretion in all the circumstances to make an order under s 10 of the CSPA.

Conclusion on Penalty

1. In my view, the appropriate penalty for the offence is a fine. The amount of the fine is determined by, as stated above, the instinctive synthesis of all of the relevant objective and subjective circumstances of the offence and the offender.

1. Synthesising the objective circumstances of the offence as mitigated by the subjective circumstances of Mr Perini, and having regard to the existing pattern of sentencing, I consider that the appropriate penalty to be imposed is a fine in the sum of $40,000 discounted by a total of 30%, which amounts to a total fine of $28,000.

Orders

1. The orders of the Court are as follows:

(1) Mr Perini is convicted of the offence as charged;

(2) Mr Perini is fined the sum of $28,000;

(3) pursuant to s 257B of the Criminal Procedure Act 1986, Mr Perini is to pay the applicant's legal and investigation costs as determined under s 257G(b) of that Act; and

(4) the exhibits are to be returned.

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Amendments

25 October 2013 - Mistakenly left off during publishing

Amended paragraphs: Index added to beginning of Judgment

Decision last updated: 25 October 2013