Pegasus Building Pty Ltd v Curlis
[2018] VSC 484
•29 August 2018
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S CI 2018 00020
| PEGASUS BUILDING PTY LTD (ACN 140 292 422) | Appellant |
| v | |
| DANIEL LEIGH CURLIS | Respondent |
AND
S CI 2018 00021
| SOHEIL LAGHAIEN | Appellant |
| v | |
| DANIEL LEIGH CURLIS | Respondent |
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JUDGE: | CAMERON J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 9 August 2018 |
DATE OF JUDGMENT: | 29 August 2018 |
CASE MAY BE CITED AS: | Pegasus Building Pty Ltd v Curlis; Laghaien v Curlis |
MEDIUM NEUTRAL CITATION: | [2018] VSC 484 |
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BUILDING AND PLANNING – Appeal from Magistrates’ Court – Builder found guilty of undertaking building works beyond scope of building and planning permits – Whether building and planning permits impliedly authorised works – Works claimed to be necessary for structural integrity – Interpretation of permits – Implied authority – Building Act 1993 s 61 – Planning and Environment Act 1987 s 126(1).
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APPEARANCES: | Counsel | Solicitors |
| For the Appellants | Mr T L Bevan | Franzese & Associates |
| For the Respondent | Ms S Porritt with Mr P Smallwood | Beck Legal |
HER HONOUR:
What are these cases about?
The question in these cases is whether the removal of the roof over the front (or western) section of the property at 10 Taylor Street, Fitzroy North, described in Certificate of Title Plan 116283 Volume 09666 Folio 124 (‘the Property’), in the course of building works, contravened the relevant planning and building permits issued in respect of the works on the Property.
In proceedings in the Magistrates’ Court, it was found that it did.
That decision is now the subject of an appeal to this Court.
Background
There are two proceedings before the Court. Pegasus Building Pty Ltd (‘Pegasus’) is the appellant in proceeding number S CI 2018 00020. Soheil Laghaien (‘Laghaien’) is a registered builder and the sole director of Pegasus, and is the appellant in proceeding number S CI 2018 00021. I will refer to Pegasus and Laghaien collectively as ‘the appellants’. Each proceeding raises substantially identical issues. Accordingly, the matters were heard as one. I indicated to the parties that I would deliver one judgment in respect of both proceedings.
At this point, it is convenient to explain the three sections of the roof over the Property. The first section of the roof is the western section, facing the street, which extends as far as the chimney. This section of the roof, which I will refer to simply as ‘the Roof’, is the subject of this appeal. The second section of the roof is the section over the rear of the building which extends eastwards from the chimney to the back of the original footprint of the Property. I will refer to this as the ‘second section of the roof’. The third section of the roof, which is not relevant to this proceeding, is the new roof to be constructed over the addition to the Property, being the two storey extension. Whilst these proceedings primarily concern only the Roof, the respondent maintained arguments in relation to the second section of the roof, and I will address those submissions.
The parties provided the Court with an agreement as to facts, pursuant to s 191 of the Evidence Act 2008. Relevantly, and in substance, the following was agreed between the parties:
(a) Pegasus was engaged by the owner-builder Mostafa Basioni to carry out building works at the Property.
(b) The Property is within the Heritage Overlay in the Yarra Planning Scheme.
(c) Pursuant to clause 43.01-1 of the Yarra Planning Scheme, a planning permit is required to demolish or remove a building or part of a building, including the roof of the building on the Property.
(d) Prior to the commencement of building works, the Property was a single-storey weatherboard dwelling built around 1900–1915. It was listed as a building of contributory heritage significance in the City of Yarra Heritage Review 2008.
(e) On 14 December 2014 Yarra City Council (‘the Council’) issued a planning permit in respect of the works on the Property, being Planning Permit PLN14/0043 (‘the Planning Permit’).
(f) On 18 May 2015, endorsed plans were issued with respect to the works permitted by the Planning Permit.
(g) On 16 June 2015, the Council served a letter on Mr Basioni requiring him to obtain an asset protection permit.
(h) On 11 December 2015 Mr Rocco Di Raco of West Side Building Surveying (Vic) Pty Ltd issued Building Permit BSU14813/2398615/0 (‘the Building Permit’). The Building Permit is in the form of a Form 2 under reg 313 of the Building Regulations 2006 and signed by Mr Di Raco, a set of nine drawings by Terrain Engineering Group endorsed with a building permit stamp, and a set of nine drawings by Tom Motta endorsed with a building permit stamp.
(i) The work to be carried out on the Property are building works defined by Section 3 of the Building Act 1993 and are therefore not exempt from the requirement of a building permit.
4 April 2016
(j) On 4 April 2016, Mr Luke Cattogio, a Council Building Inspector, attended the Property to conduct an inspection in response to a complaint about potential illegal building works being carried out on the Property.
(k) Upon arrival at the Property, Mr Cattogio observed that certain demolition works had been carried out at the Property, including the complete removal of the Roof and roof structure, which included the rafters, ridge board, ceiling joists, roof sheeting and all other roof framing members (‘the Building Works’).
(l) Consequently, Mr Cattogio formed the opinion that the Building Works did not accord with the existing Building Permit and Planning Permit (collectively ‘the Permits’).
(m)It is to be noted that during the inspection on 4 April 2016, Mr Cattogio had a conversation with Laghaien and Mr Basioni during which, amongst other things, Laghaien told Mr Cattogio that the removal of the Roof had commenced on the morning of 1 April 2016.
(n) Mr Cattogio was able to observe that:
(i) the roof over the living room and entry passageway had been demolished;
(ii) the roof over the bedrooms, with the exception of the roof over the bedroom on the north-west boundary, had been demolished;
(iii) the demolition of the roof included demolition of rafters, ridge board, ceiling joists, roof sheeting and all other roof framing members.
(o) It was admitted that, as at 4 April 2016, the works referred to above had been carried out. By way of clarification, these works are the subject of this proceeding in that they involved the demolition of the Roof and the second section of the roof.
(p) Prior to completing his inspection, Mr Cattogio directed Laghaien to immediately prop all the walls and the front façade of the dwelling and to cease all other work at the Property.
(q) Mr Cattogio also told Mr Basioni that an order to stop building work would be issued and would remain in force until the Permits were amended. Mr Cattogio told Mr Basioni that an emergency order would be issued directing him to provide propping to stabilise the walls and chimneys under the direction of an engineer.
(r) Later, the Council’s Team Leader for Planning Enforcement, Mr Gregory John Fairall, arrived at the Property to conduct an inspection.
(s) Prior to entering the Property, Mr Fairall observed that the back half of the dwelling had been demolished and the entire roof structure had been demolished and removed.
(t) Finally, Mr Dan Curlis, the Municipal Building Surveyor (‘Curlis’), issued an Emergency Order to Mr and Mrs Basioni and a Building Order to Stop Building Works.
5 April 2016
(u) On 5 April 2016, Mr Cattogio returned to the Property to inspect propping that had been installed to stabilise the walls and chimneys at the Property.
(v) On that day, Mr Basioni participated in an interview with Mr Cattogio at the Property; he signed a written statement before Mr Cattogio at 10:39am that day. During the interview Mr Basioni admitted:
(i) He and Mrs Basioni were the owners of the Property;
(ii) The Building Works commenced three weeks prior to the interview;
(iii) Laghaien carried out the Building Works; and
(iv)The Building Works undertaken on the Property included the removal of the roof and roof framing.
8 April 2016
(w) On 8 April 2016, Mr Curlis received a document ‘certificate of compliance – design & inspection’ from Mr Kevin Nemat, in respect of installed propping to stabilise the walls and chimney at the Property, after which Mr Curlis issued a letter to Mr and Mrs Basioni cancelling the Emergency Order.
11 and 19 April 2016
(x) On 11 April 2016, Mr Di Raco, the relevant building surveyor, issued a Building Notice to Mr Basioni and then, on 19 April 2016, he issued a Building Order to Stop Building Works to Mr Basioni.
What happened next?
As a result of the facts and matters outlined above, charges were laid against Laghaien and Pegasus.
The first charge against Laghaien was pursuant to s 16 of the Building Act 1993:
Between on or about the 15th February 2016 and the 4th March 2016, as Pegasus Building Pty Limited did commit an offence under section 16 of the Building Act 1993, namely the said body corporate did carry out building work when no building permit had been issued or was in force at the premises situate at 10 Taylor Street, Fitzroy North in the State of Victoria, the Accused, being the sole director of Pegasus Building Pty Limited, who took part in the management of the said body corporate, was directly or indirectly concerned in or party to the commission of the said offence and is also guilty of the said offence.
The second charge against Laghaien was pursuant to s 126(1) of the Planning and Environment Act 1987:
Between on or about the 15th February 2016 and the 4th March 2016, as Pegasus Building Pty Limited did commit an offence pursuant to section 126(1) of the Planning and Environment Act 1987, namely the said body corporate did develop the premises situate at 10 Taylor Street, Fitzroy North in the said State, in contravention of and failed to comply with a planning scheme, namely clause 43.01-1 of the Yarra Planning Scheme, by carrying out demolition works when no planning permit has been issued or was in force, the Accused, being the sole director of Pegasus Building Pty Limited, is also guilty of the said offence as the Accused did fail to exercise due diligence to prevent the commission of the said offence by the said body corporate.
The first charge against Pegasus was pursuant to s 16 of the Building Act 1993:
Between on or about the 15th February 2016 and the 4th March 2016 the Accused did carry out building work, specifically demolition works, when no building permit had been issued or was in force under the Building Act 1993 at the premises situate at 10 Taylor Street, Fitzroy North in the State of Victoria.
The second charge against Pegasus was pursuant to s 126(1) of the Planning and Environment Act 1987:
Between on or about the 15th February 2016 and the 4th March 2016 the Accused did develop the premises situate at 10 Taylor Street, Fitzroy North in the said State, in contravention of and failed to comply with a planning scheme, namely clause 43.01-1 of the Yarra Planning Scheme, by carrying out demolition works when no planning permit has been issued or was in force.
The third charge against Pegasus was pursuant to s 25B of the City of Yarra Local Law No. 2 of 2012:
Between on or about the 15th February 2016 and the 4th March 2016 the Accused, being the builder engaged to carry out building work, did carry out building work at the premises situate at 10 Taylor Street, Fitzroy North in the said State, without an Asset Protection Permit, contrary to City of Yarra Local Law No. 2 of 2012.
The orders appealed by the appellants
The matters were heard in the Magistrates’ Court on 13 December 2017. No written reasons were given by his Honour. The appellants now appeal against the following orders made by the Honourable Magistrate:
(a) that the appellants were guilty of charge 1, namely, carrying out building work without a building permit contrary to s 16 of the Building Act 1993;
(b) that the appellants were guilty of charge 2, namely, carrying out building work without a planning permit contrary to s 126(1) of the Planning and Environment Act 1987;
(c) that the appellants each pay an aggregate fine of $4,000; and
(d) that the appellants pay the respondent’s costs, fixed at $20,000.
Pegasus did not challenge the order that it was guilty of charge 3, namely, carrying out building work without an asset permit. This charge did not apply to Laghaien.
Grounds of appeal
The grounds of appeal raised by the appellants were as follows:
(a) the Honourable Magistrate erred by holding that it was not reasonably necessary to remove the Roof where in fact the evidence was:
(v) the Roof’s structural integrity would be compromised by other work to be carried out under the Permits (namely the removal of rafters and hip rafters and the demolition of internal load-bearing walls);
(vi)as a consequence of the other works, the Roof had to be removed and rebuilt or propped before the renovations could be completed;
(vii) no design detail to prop the Roof was contained in the plans attached to the Permits; and
(viii) the expert’s opinion was that it was neither cost effective, nor practical nor likely that the existing Roof could be retained.
(b) the Honourable Magistrate erred by holding that where the appellants had a practical election as to how to deal with the Roof, the course of action taken could not be reasonably necessary in the relevant sense.
(c) the Honourable Magistrate erred by holding that it was necessary to obtain a further permit for the roof in circumstances where the need to carry out work on the Roof arose incidental to building work for which there was already a permit.
The appellants further raised the following question of law:
Was removal of the Roof necessary or reasonably or properly done to achieve the main purpose of the Permits and therefore authorised having regard to Egan v Willis (1998) 195 CLR 424, 468; A-G v Great Eastern Railway Co (1880) 5 App Cas 473, 481 and Johns v ASC (1993) 178 CLR 408, 428–9?
The respondent (‘Curlis’), in turn, filed a notice of contention, which stated:
The respondent contends that the judgment of the Magistrates’ Court at Melbourne should be affirmed on a ground of fact or law that was erroneously decided and/or was not raised for decision in the Court.
Contention 1: The Magistrates’ Court erred by having regard to whether it was ‘reasonably necessary’ for the appellant[s] to undertake the works that informed the charges when determining the proceedings.
Particulars:
(a) Reasonable necessity is not a defence available at law to any of the charges alleged against the appellant[s] (and of which the appellant[s] was convicted).
Contention 2: In the absence of:
(a) an amendment to the planning permit PLN14/0043 or further permission under the Yarra Planning Scheme; and
(b) an amendment to the building permit or further permission under the Building Act 1993;
the works undertaken were unlawful as alleged in charges 1 and 2.
The orders sought by the appellants
The appellants seek orders that:
(a) the findings of guilt on charges 1 and 2 against both Laghaien and Pegasus be quashed;
(b) the matter be remitted to the Magistrates’ Court for Pegasus to be re-sentenced on charge 3, and to rehear any application for costs; and
(c) the respondent pay the appellants’ costs of the appeal.
What do the parties say?
(i) Appellants’ submissions and reply
The appellants submitted that on the proper construction of the Permits, all building work carried out by the appellants fell within the scope of the Permits, and was therefore lawful.
The appellants submitted that because the Permits contemplated the removal of load-bearing internal walls and the removal of the second section of the roof to ‘accommodate new building features’, and did not expressly permit any new means of supporting the Roof, they impliedly permitted the removal and rebuilding of the Roof.
In making this submission, the appellants relied on the expert evidence of Mr George Cross, and particularly the following statement:
The building permit plans show that none of the original front rooms of the dwelling were to be retained and that almost all the internal walls were to be demolished. Consequently, the building permit required demolition work but the building permit did not show the amount of roof removal on any plan delineating the extent of demolition.
The demolition of the internal walls inevitably required the roof and ceiling structure to be removed. This is because the roof and ceiling structures are supported by the internal walls. However, there was no plan and no design provided on the building permit documents to show any method of support to the original structure when the internal walls were removed. Further, the newly repositioned and relocated internal walls required a completely different support structure than the original structure. Thus, reconstruction was inevitable in my view.
The essence of the appellants’ position was that permission was granted to conduct the works that were carried out, and as such, they committed no crime. Counsel for the appellants made this clear during the hearing of the matter:
MR BEVAN: Now, my friend has suggested that we have raised the defence of necessity. We don’t raise the defence of necessity. My friend also said in her submissions right at the very beginning that we raised a new and novel defence. It’s not a defence at all. We say the work that was carried out is authorised and it’s authorised because it’s implied. There’s no defence. It’s just that there was no crime.
The appellants submitted that four principles applied to the construction of the Permits:
(a) A permit, as a statutory regulatory instrument, should be construed in accordance with the usual rules of statutory construction.[1] It ought be read as a whole, in a way which reflects the presumption that its provisions are intended to operate together to achieve a specific purpose or purposes.[2]
[1]Protean (Holdings) Ltd v Environment Protection Authority [1977] VR 51, 55 (Gillard J).
[2]Project Blue Sky Inc & Ors v Australian Broadcasting Authority (1998) 194 CLR 355, 381 [69] (McHugh, Gummow, Kirby and Hayne JJ).
(b) A permit is not to be construed as a document drafted by lawyers, but as one intended to achieve practical results.[3]
(c) The scope of the authority granted by a permit also extends to those things reasonably necessary to achieving the purpose of the permit.[4]
(d) Because a breach of either permit carries criminal sanctions, the scope of the permit must be strictly construed, such that any doubt or ambiguity must be resolved in favour of the accused in any particular case.[5]
[3]Baulkham Hills Shire Council v Ko-Veda Holiday Park Estate Ltd [2009] NSWCA 160 [96]–[99] (Tobias JA). See also Leichhardt Council v Geitonia Pty Ltd (No 6) [2015] NSWLEC 51.
[4]Egan v Willis (1998) 195 CLR 424, 468 [83] (McHugh J) (‘Metro Transport Sydney’), citing Fenton v Hampton (1858) 14 ER 727, 732; Metro Transport Sydney Pty Ltd v City of Sydney Council [2009] NSWLEC 37 [29] (Biscoe J), citing A-G v Great Eastern Railway Co (1880) 5 App Cas 473, 481 (Lord Blackburn); Johns v ASC (1993) 178 CLR 408, 428–429 (Brennan J).
[5]Beckwith v The Queen (1976) 135 CLR 569, 576.
The appellants cited two cases in which the ‘principle of necessary intendment’ had been applied. In Gray v Macquarie Generation, a licence to generate electricity was found to impliedly authorise the release of carbon dioxide into the atmosphere.[6] In Martin v Hume Coal Pty Ltd, a prospecting licence was found to grant the right to ‘access the land and to transport plant and equipment and samples that have been removed from the land’.[7]
[6][2010] NSWLEC 34 [54]–[55] (Pain J).
[7][2016] NSWLEC 51 [20] (Preston CJ).
As for the threshold of this ‘necessary intendment’, the appellants submitted that an action only had to be ‘reasonably necessary’, and not ‘absolutely or strictly necessary’, in order to be impliedly authorised under a permit. They cited a passage from the judgment of Biscoe J in Metro Transport Sydney, where it was held that activities were impliedly authorised if they ‘can reasonably or sufficiently be characterised as tied to achieving the purpose’ of the permit.[8]
[8][2009] NSWLEC 37 [27].
(ii) Respondent’s submissions
The respondent submitted that no miscarriage of justice arose from the orders of the Magistrates’ Court, and set out four propositions in support of this conclusion:
(a) The planning and building regimes prohibit certain works being undertaken unless expressly permitted by validly issued permits;
(b) The appellants undertook building works;
(c) Building works are unlawful unless permitted by three different permits: building, planning and asset protection; and
(d) The removal or destruction of the Roof was not referred to in the Permits.
The respondent further submitted that the appellants’ expert did not say that it was ‘necessary’ or ‘reasonably necessary’ to undertake the Building Works and that, even if the law recognised a defence of ‘reasonable necessity’ (which the respondent disputed), the Building Works fell short of that standard, being merely convenient. The respondent suggested that the appellants could have simply applied to vary the Permits on the basis that the Building Works were practicable in order to complete the extension to the house.
In responding to the appellants’ submission that the Permits impliedly authorised the doing of anything ‘reasonably necessary’ to achieve their purpose, the respondent distinguished the authorities relied upon by the appellants[9] from the facts before the Court:
MS PORRITT: ... The difficulty with the authorities you were taken to is that they’re all about incidental powers.
If you give someone an incidental power – a power of a railway company to build a railway, we’ve got no difficulty with the idea that it might be incidental to the power of a railway company that it also has to do various things.
We have no difficulty with the idea that it might be incident to a mining licence that you also have access to the land. That’s a power. And then - - -
HER HONOUR: And so is a licence substantively different from a permit, in that sense?
MS PORRITT: We’ll get to that. What we say is the fundamental difference here is, these permissions are tied to plans. And given the plans, you would expect to see the extent of that permission.
[9]Gray v Macquarie Generation [2010] NSWLEC 34; Martin v Hume [2016] NSWLEC 51.
Counsel for the respondent developed this argument, distinguishing between activities which were incidental to completing the plans (such as using a nail gun) and activities which went entirely beyond the works authorised under the plans (demolishing a roof). As was submitted:
MS PORRITT: Now if we were talking about something inherent in the building process, like you can use a nail gun to do the works, we might be a little bit closer to an analogous situation. But what [is] the case here is that there is a set of plans that tells you what you can do and what you can’t do.
Counsel contended that if something other than was expressly authorised on the face of the plan was to be done, then the plans should have been amended, and that there were processes in place for that to occur.
Building and planning permits, in the respondent’s submission, are considerably more specific than the kind of licences considered in the cases cited by the appellants. The Permits in this case, it was contended, did not grant the appellants ‘permission to do a project’. Rather, they gave them a ‘very specific permission to do what is set out in [the] plans’.
In support of the respondent’s contention that a building permit does not give a party permission ‘for the building of house generally, but rather to carry out the works specifically approved by reference to the plans’, counsel cited the recent case of Phillip Mannerheim Holdings v Nillumbik Shire Council. In that case, Bell J accepted the validity of a conditional objection to building work, that is, one which objected only to certain elements of a building proposal, and not to the project in totality:
In the ordinary planning context, an application for a permit might attract from persons affected outright support, outright opposition, conditional support, conditional opposition or neutrality across a spectrum of possible reactions that might change or interact in response to circumstances as they evolve. The operation of planning decision–making processes, including the processes of negotiation, alternative dispute resolution and adjudication at the primary and review levels, typically encompasses all of these legitimate positions and due consideration of the interests that they represent, which may result in modification of the application.[10]
Counsel also cited s 61(1) of the Planning and Environment Act 1987, which provides that the responsible authority may not only grant or refuse a permit unconditionally, but also grant a permit subject to certain conditions.[11]
[10]Phillip Mannerheim Holdings Pty Ltd v Nillumbik Shire Council (2017) 53 VR 120, 128 [22].
[11]Planning and Environment Act 1987 s 61(1).
The respondent referred to s 16(1) of the Building Act 1993, under which the appellants were charged, which provides that: ‘[a] person must not carry out building work unless a Building Permit in relation to the work has been issued and is in force under this Act’.[12] The term ‘building work’ is defined at s 3 of the Act as meaning ‘work for or in connection with the construction, demolition or removal of a building’.[13] As the Permits did not provide for the removal of the Roof, and the work was not necessary and incidental to approved building work. The respondent contended that the Building Works were not exempt from the requirement for a permit and, as such, were illegal.
[12]Building Act 1993 s 16(1).
[13]Ibid s 3.
It was submitted that because the ‘building permit on its face tells you no more than this is for the extension and alteration of existing dwelling and all parts’, it provides no guidance as to the scope of the permitted works. The plans, it is contended, set the boundaries for the work that can be carried out.
To this end, relevantly, the respondent drew the Court’s attention to the Building Permit itself which, on its face, contained the following statement:
No alternation to or variation from the stamped plans and specifications may be made without written consent of the building surveyor.
That is, it was contended, in the event that there is a disparity between the Building Works and the specific permission granted pursuant to the Building Permit, further engagement with and approval from the building surveyor was required.
The Court was also taken to definitions of ‘building works’, ‘construction’ and ‘building’ in the Building Act 1993.[14]
[14]Ibid s 3.
Section 16 of that Act provides:
(1) A person must not carry out building work unless a building permit in relation to the work has been issued and is in force under this Act.
(2) A person must not carry out building work unless the work is carried out in accordance with this Act, the building regulations and the building permit issued in relation to that work.
(3) An owner of land must ensure in relation to building work carried out on that land that a building permit in relation to the work has been issued and is in force under this Act.
(4) A building practitioner or an architect who is engaged to carry out building work must ensure that a building permit in relation to the work has been issued and is in force under this Act.
(4A) A builder named in a building permit must ensure that the building work to which the building permit applies is carried out in accordance with this Act, the building regulations and the building permit.
(5) Subsection (3) does not apply to an owner if the owner has engaged a building practitioner or architect to carry out the building work on that land.
(6) Subsections (1), (2), (3), (4) and (4A) do not apply if the building work is exempted by or under this Act or the regulations.
Accordingly, the respondent submits that it was clear that the Building Permit did not grant permission to remove the Roof. There was no broad permission conferred for the project at large. It was specific permission tied to specific plans.
In relation to the planning regime, the respondent submits that the land is within a heritage overlay under the Yarra Planning Scheme and, accordingly, a permit is required to demolish or remove a part of a building.[15]
[15]Yarra Planning Scheme cl 43.01-1.
As submitted by the respondent in relation to the planning regime:
MS PORRITT: When approved, the plans will be endorsed, and will then form part of the permit.
“The plans must be drawn to scale”, and you’ll see that they prescribe things in really rather a lot of detail. So there’s been an initial sets put in with the application, and the applicant is required to amend the plans so that they do things like, “Set the fall back 2.62 metres from the southern boundary”. “The rear veranda shown with a flat roof needs to be amended”
To the extent that the plans as they stood did not allow the appellants to safely complete the extension, then it fell to them to ‘come back and get those necessary permissions’. They were not, the respondent submitted, permitted to go ahead and dismantle the Roof.
[…]
‑ ‑ ‑ but there’s a great deal of specificity in this permit, as we say you would expect. Now, we say that if it were to be the case that the roof of a heritage building were to be removed, and I say we don’t – we’re not seeking to unpick the findings that appear to have occurred by the – you can replace the sheeting, the sheeting we saw a photo of.
Finally, in relation to the conditions attached to the Planning Permit, the respondent contended:
MS PORRITT: And that indicates, “The development, as shown in the endorsed plans, must not be altered, unless the planning scheme specifies that a permit is not required” … “without prior consent of the responsible authority”, so that tells you two things: one of them is you can’t do anything apart from what’s on the plans, and if you want to change them, that provides you one of the options for amending the plans. Now, my submissions set out the other options within the Planning and Environment Act for amending plans.
There’s the option under that paragraph, the permit, there’s a process under s.72 of the Planning and Environment Act. There’s a process of applying to the tribunal under s.87 of the Planning and Environment Act. There’s a further and new section under s 87(a), which allows you to apply to the tribunal in slightly more circumstances than are to be found in paragraph – found in s.87.
[…]
Now, the other two things, which reinforce the two submissions I’ve just made in respect of the Planning and Environment Act, are – and on this occasion, I need you to go to the definition section of the Planning and Environment Act. Has that been handed up yet? That – which is now being handed up to you. Conveniently on p 7, under the Planning and Environment Act, the permit here is defined to include the plans, drawings and other documents approved under the permit.
So the permit itself shows that, but the Act itself makes that point. Again, s 126, under which the defendants were charged, makes an offence to do things which require a permit, which is not in issue, without having that permit. And of course, that’s what brings this matter before the magistrate and, ultimately, Your Honour.
It should be noted at this point that the respondent made a submission regarding the second section of the roof, that is, the part of the original roof behind the chimney. The respondent filed a notice of contention on 20 April 2018, which submitted that despite reaching the correct decision overall, the Honourable Magistrate erred by ‘having regard to whether it was “reasonably necessary” for the appellants to undertake the works that informed the charges when determining the proceedings’.
In his written submissions, the respondent clarified that the alleged error was the Honourable Magistrate’s finding ‘certain works to the rear of the property were permitted as a matter of necessity’. The respondent submitted that there was no such necessity. However, the respondent did not press the point, noting that he did not contend that ‘the interests of justice require the matter to be remitted in relation to the findings on these issues’. Further, counsel for the respondent expressly abandoned the issue during the hearing of the matter:
MS PORRITT: Now, we don’t accept that His Honour’s findings were correct in relation to that, but we don’t urge Your Honour to do anything with that contention. We simply wanted it to be known that that’s our position. In fact, His Honour’s findings were related only to the front part of the roof. We don’t seek to have the matter sent back on account of anything we might say about the rear of the roof. That would simply be inefficient and inappropriate.
This being the case, it is not necessary to remit this issue to the Magistrates’ Court for reconsideration and this Court will not make any finding in relation to it.
What do the authorities say?
(i) The construction of permits
A permit is a statutory regulatory instrument, and as such, should be construed in accordance with the usual rules of statutory construction.[16] These rules were summarised by a majority of the High Court in Project Blue Sky:
The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute. The meaning of the provision must be determined ‘by reference to the language of the instrument viewed as a whole’. In Commissioner for Railways (NSW) v Agalianos, Dixon CJ pointed out that ‘the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed’. Thus, the process of construction must always begin by examining the context of the provision that is being construed.[17]
[16]Protean (Holdings) Ltd v Environment Protection Authority [1977] VR 51, 55 (Gillard J).
[17]Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355, 381 [69] (McHugh, Gummow, Kirby and Hayne JJ) citing Commissioner for Railways (NSW) v Agalianos (1955) 92 CLR 390, 397.
This process of construction may sometimes require departure from the natural or ordinary meaning of a provision, if the alternative is absurdity or inconsistency with the purpose of the instrument.[18]
[18]ABC v Australasian Performing Right Association Ltd (1973) 129 CLR 99, 109 (Gibbs J).
One respect in which permits differ from other statutory instruments is that they are to be construed to achieve practical results, and not read as documents drafted with legal expertise.[19]
[19]Baulkham Hills Shire Council v Ko-Veda Holiday Park Estate Ltd [2009] NSWCA 160 [96] (Tobias JA), citing Westfield Management Ltd v Perpetual Trustee Company Ltd [2006] NSWCA 245 [36], [40] (Hodgson JA).
Further, building and planning permits, as public documents, should be clear on their face. They are intended to be comprehensible by members of the public, and anyone who might occupy the land at a later date, without recourse to secondary materials. It should not be necessary, and in general is impermissible, to refer to anything aside from the permit itself when interpreting that document. In Gant v Greater Geelong City Council, Morris P observed that:
[G]enerally, the interpretation of a permit must be gleaned from the words used in that permit and that, generally, it [is] impermissible to go behind the permit. The reasoning is essentially that permits run with the land and a person who may occupy the land may not be familiar with the antecedent history to the permit. Being a public document the permit should speak for itself and any person reading it should be able to deduce its meaning and act upon that meaning.[20]
[20](2003) 15 VPR 230, 232 (Morris P). See also Vestey & Ors v Warrnambool City Council [2008] VCAT 963 [32] (‘Vestey’).
Further to this point is the decision of Spiegelman CJ in Winn:
A public document, such as a development consent, constitutes a unilateral act on the part of the consent authority expressed in a formal manner, required and intended to operate in accordance with its own terms. It has, as Stein JA points out, an inherent quality that it will be used to the benefit of subsequent owners and occupiers. It is also a document intended to be relied upon by many persons dealing with the original grantee, or assignees of the grantee, in such contexts as the provision of security. In some respects it is equivalent to a document of title. It must be construed in accordance with its enduring functions.[21]
[21]Winn v Director General of National Parks and Wildlife [2001] NSWCA 17; (2001) 130 LGERA 508, 513 [4].
One exception to this rule is where a permit expressly or impliedly incorporates another document or plan, in which case the two documents are to be treated as one.[22]
[22]Vestey [2008] VCAT 963 [31].
(ii) Implied authority
When an authority is conferred by a statute, that authority extends to the doing of anything that is a necessary incident of the conferral. Three decisions were relevantly cited by the appellants on this point; although the respondent disputed the applicability of these authorities to the present facts.
In Attorney-General v Great Eastern Railway Co, Blackburn LJ found, in relation to a corporation established under a statute for a particular purpose, that:
[T]hose things which are incident to, and may reasonably and properly be done under the main purpose, though they may not be literally within it, would not be prohibited.[23]
[23](1880) 5 App Cas 473, 481 (Lord Blackburn). See also Metro Transport Sydney [2009] NSWLEC 37 [29] (Biscoe J).
This principle was echoed by McHugh J in Egan v Willis:
Whenever anything is authorised and especially if, as a matter of duty, required to be done by law and it is found impossible to do that thing unless something else not authorised in express terms be also done, then that something else will be supplied by necessary intendment.[24]
[24](1998) 195 CLR 424, 468 [83], citing Fenton v Hampton (1858) 14 ER 727, 732.
In a similar vein, Brennan J held in Johns v Australian Securities Commission:
An authority conferred by statute is construed as authorizing everything which can fairly be regarded as incidental to or consequential upon the authority itself.[25]
[25](1993) 178 CLR 408, 428–429 (Brennan J).
(iii) Interpretation of criminal provisions
The appellants cited the decision of Gibbs J in Beckwith v The Queen as authority for the proposition that criminal provisions (in this case, s 16 of the Building Act 1993) are to be interpreted strictly, with any doubt or ambiguity resolved in favour of the accused. However, the relevant passage of his Honour’s judgment is somewhat less emphatic than the appellants suggest:
The rule formerly accepted, that statutes creating offences are to be strictly construed, has lost much of its importance in modern times. In determining the meaning of a penal statute the ordinary rules of construction must be applied, but if the language of the statute remains ambiguous or doubtful the ambiguity or doubt may be resolved in favour of the subject by refusing to extend the category of criminal offences. The rule is perhaps one of last resort.[26]
[26](1976) 135 CLR 569, 576.
Decision and analysis
As I have observed above, the respondent, by way of notice of contention, contends that the Magistrates’ Court erred by having regard to reasonable necessity in relation to the removal of the Roof and that that is not a defence available at law to any of the charges alleged against the appellants.
It is clear that in certain circumstances the courts do recognise that it may be necessary to take actions that are not specifically permitted under an authority. Indeed, the respondent conceded that this, but drew a distinction between various sorts of authorities and permissions.
Based on the authorities, I do not find that the Honourable Magistrate fell into error by having regard to considerations of reasonable necessity. The question for determination is, in the absence of specific permission to remove the Roof, was it reasonably necessary for the appellants to remove the Roof? That is, in this case, was the removal of the Roof reasonably necessary?
In my opinion, it was not, for the reasons which follow.
The authorities to which I have referred, in my opinion, set the bar a lot higher than the facts of this case establish.
The expert evidence was that there were other viable options open to the appellants to maintain the structural integrity of the Roof. The only conclusion that can be drawn on the evidence, in my opinion, was that the removal of the Roof was the most attractive, practical, cost-effective and/or expedient option. There was no evidence of the imminent collapse of the Roof, nor any suggestion that workers were in danger or that there was risk to adjoining properties which could not have been addressed by appropriate engineering solutions. Had any of these factors been present or imminent, and unable to otherwise be addressed, the case may well have been different.
In the respondent’s submission, the planning and building regimes which are the source of authority to carry out the works on the Roof are prescriptive for a reason. It was contended that building and planning permits in general, and the Permits in particular, are tied to plans. Authority for works, it was contended, only extends so far as is specifically permitted by the terms of the Permits. The following was submitted by the respondent.
MS PORRITT: The plans should not be constructed in a way that provides a convenient means to ease the burden of technical building compliance. There are good and compelling public policy reasons for requiring works to be done, only when there are clear and transparent approvals.
Firstly, there’s a need for certainty in the regime and, indeed, the case that I read from before talks about certainty and planning permits and such things being like certificates of title and the need for certainty. The need for supervision, which ensures that the works are done safely. That’s what the building regime in particular is directed at. The need for clarity, where statutory warranties and contractual obligations are tied to plans.
In a similar vein, by way of written submissions the respondent contended that the regulatory regime is concerned to ensure that:
(a) Buildings are constructed safely;
(b) Building works that may be passed on to others have been built to a standard consistent with the implied warranties which attach in certain circumstances such as under the Domestic Building Contracts Act 1995; and
(c) Transparency is delivered through the approval of plans which specify the works to be done.
There is much force in the respondent’s submissions and I accept them. The building and planning regimes are there for very sound reasons. To protect the public, to allow authorities to monitor and prescribe the development of properties, to preserve properties and the integrity of streetscapes in areas where heritage concerns may feature and to ensure the structural integrity of dwellings for owners, future purchasers and neighbours. Accordingly, I accept the respondent’s submissions that this case stands apart from the authorities cited by the appellants, where broader, more sweeping authorities or powers may be granted to a party under different circumstances and regulatory regimes.
I also accept that it cannot be said, based on the authorities, that the removal of the Roof was necessary. As I have observed, it may indeed have been expedient, but that is insufficient. As his Honour observed, there were other feasible and available options that the appellants could have pursued which would have resulted in the appropriate permissions being put in place. The fact that the appellants chose not to go down this route should not be visited upon the respondent in the sense that it should not deprive the respondent of the benefit of the orders of his Honour.
Accordingly, based on the facts and matters set out above, I determine that appeal grounds 1 and 2 in each proceeding must fail and they are accordingly dismissed.
Orders were sought that these matters be remitted to the Magistrates’ Court for re-sentencing in relation to Charge 3, the failure of Pegasus to obtain an asset protection permit. The respondent submitted that this may be a matter determined by this Court. In the circumstances, given the aggregate nature of the fines imposed and the familiarity of that Court with this matter, in my opinion the better course is for the matter to be remitted to the Magistrates’ Court for re-sentencing in respect of Charge 3, the failure to obtain the asset protection permit.
I will hear the parties on the form of orders and the question of costs.
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