South Sydney City Council v BJ Metro Pty Limited

[2003] NSWLEC 128

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Reported Decision: 126 LGERA 28

Land and Environment Court

of New South Wales

CITATION:	South Sydney City Council v BJ Metro Pty Limited [2003] NSWLEC 128
PARTIES:	PROSECUTOR: South Sydney City Council DEFENDANT: BJ Metro Pty Limited ACN 082 945 113
FILE NUMBER(S):	50100 of 2002
CORAM:	Lloyd J
KEY ISSUES:	Prosecution :- plea of not guilty - contravention of consent condition - consent acts in rem - prosecution not time barred - essential facts clear in summons - offence proved
LEGISLATION CITED:	Environmental Protection and Assessment Act 1979 s 4(2)(c), s 76A(1), s 81A(2), s 121H, s 125(1) and s 127(5) Interpretation Act 1987 s 21
CASES CITED:	Canterbury City Council v Saad (2000) 112 LGERA 107; Cooper v Coffs Harbour City Council (1997) 97 LGERA 125; Hillpalm Pty Limited v Heaven's Door Pty Ltd (2003) 55 NSWLR 446; House of Peace Pty Ltd v Bankstown City Council (2000) 48 NSWLR 498; McConnell Dowell Constructors (Aust) Pty Ltd v Environment Protection Authority (2000) 50 NSWLR 127; Rao v Canterbury City Council (2000) 112 LGERA 107; Taylor v Environment Protection Authority (2000) 50 NSWLR 48
DATES OF HEARING:	23/04/2003
DATE OF JUDGMENT:	05/26/2003
LEGAL REPRESENTATIVES:	PROSECUTOR: Mr A M Hawkes (solicitor) SOLICITORS: Pike Pike & Fenwick DEFENDANT: Mr A E Galasso (barrister) SOLICITORS: Landerer & Co

JUDGMENT:

- 4 -

IN THE LAND AND

ENVIRONMENT COURT

OF NEW SOUTH WALES

50100 of 2002

Lloyd J

26 May 2003

SOUTH SYDNEY CITY COUNCIL

Applicant
v

B J METRO PTY LIMITED

ACN 082 945 113

Respondent

JUDGMENT

Introduction

1 The defendant, B J Metro Pty Limited (hereinafter “the defendant”), has pleaded not guilty to an offence against s 125(1) of the Environmental Planning and Assessment Act 1979 (“the EP&A Act”) in that between 9 April 2002 and 20 September 2002 it undertook development at Nos. 1-7 Stirling Street, Redfern, otherwise than in accordance with condition 60 of a development consent granted by South Sydney City Council on 8 November 2000, contrary to s 76A(1) of the EP&A Act.

2 Section 76A(1) of the EP&A Act states:

76A Development that needs consent
(1) General
If an environmental planning instrument provides that specified development may not be carried out except with development consent, a person must not carry the development out on land to which the provision applies unless:
(a) such a consent has been obtained and is in force, and
(b) the development is carried out in accordance with the consent and the instrument.

3 Section 125(1) of the EP&A Act provides that a person offending against a prohibition under the Act is guilty of an offence. Proceedings for such an offence must be instituted within six months after the offence is alleged to have been committed (s 127(5) of the EP&A Act).

The facts

4 On 8 November 2000 the prosecutor, South Sydney City Council (“the council”), granted development consent for the erection of a multiple dwelling development at Nos. 1-7 Stirling Street, Redfern, subject to conditions. Condition 60 of the consent, entitled “Construction Certificate Required”, is as follows:

That an application for a construction certificate, with supporting plans, specifications and details demonstrating compliance with conditions of this consent and the Building Code of Australia shall be lodged and no building or excavation work be commenced until that application has been approved and at least two days written notice of the intention to commence work has been given to the Council.

5 On 23 August 2001, Mr S Dwyer of DLM Consulting Pty Ltd issued a construction certificate for stage 1 of the development (demolition). On 20 December 2001 Mr Dwyer issued a construction certificate for stage 2 of the development (excavation and pilling/shoring). By a contract dated 6 July 2001 the owner and developer, E Star Developments (Redfern) Pty Ltd, engaged the defendant to carry out building work at the development site. The “superintendent” as defined in the contract was Nordon Jago Architects Pty Ltd. The two construction certificates for stage 1 and stage 2 of the development had been applied for by Nordon Jago Architects Pty Ltd.

6 The works the subject of stage 3 of the development, being erection of the building, were commenced by the defendant on or about 14 March 2002, when the concrete slab for the basement car parking level was poured. The defendant had previously, on 8 February 2002, advised the developer and the superintendent that the current construction certificates only allowed it to carry out excavation and piling works, which were duly completed by the end of February 2002. At a meeting on 14 March 2002 attended by representatives of the developer, the superintendent and the defendant (inter alia) it was agreed that the superintendent would obtain a construction certificate for the remaining work. At a further meeting on 11 April 2002 involving the same parties, the defendant was instructed to continue with building work despite the lack of a construction certificate. By 16 May 2002 the basement structural walls had been completed up to street level. By 20 May 2002 the work had progressed past the ground floor level.

7 On 28 May 2002 Nordon Jago Architects Pty Ltd was replaced as superintendent of the works under the building contract by Mr B Whan of E Star Developments (Redfern) Pty Ltd. On or about 3 July 2002 the certifier, Mr Dwyer of DLM Consulting Pty Ltd sent a Notice of Intended Order to the defendant pursuant to s 121H of the EP&A Act in relation to the failure to comply with condition 60 of the development consent. At a meeting on 10 July 2002 attended by representatives of the developer and defendant, the defendant was instructed not to cease work. The defendant continued construction work during and throughout August 2002. On 18 September 2002 the council received a copy of a construction certificate issued by another certifier, Dix Gardner Pty Ltd, dated 19 August 2002 for the installation of mechanical, electrical and hydraulic services and non-structural internal fit-out of the units. On 2 October 2002 an inspection by a building assessor employed by the council disclosed that all structural members of the building had been constructed.

The parties’ submissions

8 Mr A E Galasso, appearing for the defendant, relies upon the following submissions.

(a) The prosecution is time barred. The condition which is alleged to have been infringed, condition 60, relevantly states : “ … no building or excavation work shall be commenced until that application has been approved and at least two days written notice…”. The relevant element to the prohibition contained within condition 60 is the commencement of building work, which is to be contrasted with “carrying out” such work (cf s 4(2)(c) of the EP&A Act). The evidence shows that the building work was commenced on or about 14 March 2002. The prosecution was commenced on 9 October 2002, which is outside the period of six months required by s 127(5) of the EP&A Act: the offence must not have been committed prior to 9 April 2002 for a prosecution commenced on 9 October 2002.
(b) The summons is defective. The essential factual ingredient of the offence is missing. That essential factual ingredient is the commencement of building work. The particulars in the summons, however, state that all structural members of the building “had been constructed … without a construction certificate having been issued for such works” (reference was made to McConnell Dowell Constructors (Aust) Pty Ltd v Environment Protection Authority (2000) 50 NSWLR 127).
(c) B J Metro Pty Ltd is the wrong defendant. The present defendant is not “the person having the benefit of the development consent” (cf s 81A(2) of the EP&A Act). The development consent was not issued to the defendant but to Carson Group Pty Ltd. The person having the benefit of the development consent is either Carson Group Pty Ltd or the present owner and developer, E Star Developments (Redfern) Pty Ltd, the latter being seised of the fee simple and thus having the benefit of a right in rem , being the development consent. (Reference was made to Hillpalm Pty Ltd v Heaven’s Door Pty Ltd (2003) 55 NSWLR 446.) The role of the defendant was as a building contractor. That role does not qualify the defendant as having the benefit of the development consent. Moreover, in the present case the defendant had no ability to comply with condition 60. The defendant did not have authority to apply for the construction certificate. That power was reserved to E Star Developments (Redfern) Pty Ltd as the person having the benefit of the development consent.

9 Mr A M Hawkes, appearing for the prosecutor, relies upon the following submissions as I understand them.

(a) The offence charged is one of undertaking development between certain dates otherwise than in accordance with a condition of a development consent. This is what is proscribed by s 76A(1). That is, the offence is carrying out development when the condition has been breached. If development is undertaken at any time after a breach of condition 60 has occurred, than there is a carrying out of development otherwise than in accordance with the consent because a breach of condition 60 had occurred.
(b) The essential factual ingredients of the offence, being a breach of s 76A(1), are set out in the summons. (Reference was made to Rao v Canterbury City Council (2000) 112 LGERA 360 and to Canterbury City Council v Saad (2000) 112 LGERA 107.)
(c) Section 81A does not apply in this case: the defendant is not charged with a breach of s 81A. The defendant is charged with an offence against s 76A(1). The prohibition under s 76A(1) is not limited to the person having the benefit of the development consent. If any person infringes s 76A(1) than such person commits an offence.
Conclusions

10 I refer, firstly, to the relevant authorities relied upon by the parties. In McConnell Dowell Constructors (Aust) Pty Ltd v Environment Protection Authority, Spigelman CJ (Grove and Kirby JJ concurring) at 132 adopted the following statement of principles from an earlier decision of the Court of Appeal in Taylor v Environment Protection Authority (2000) 50 NSWLR 48 (per Sperling J, Meagher JA and James J concurring):

[20] To be valid, an information must identify the essential factual ingredients of the offence charged: John L Pty Ltd v Attorney-General (1987) 163 CLR 508 at 519-520 ; R v Cassell (Court of Criminal Appeal, 24 July 1996, unreported); Smith v Moody , [1903] 1 KB 56; Johnson v Miller (1937) 59 CLR 467.
[21] A distinction has been drawn between ‘essential factual ingredients’ (particulars required for the validity of an information) and particulars required merely to ensure that the defendant is able to prepare his or her defence : De Romanis v Sibraa (1977) 2 NSWLR 264; Davies v Ryan (1933) 50 CLR 379 at 386; Stanton v Abernathy (1990) 19 NSWLR 656 per Gleeson CJ at 666. The latter are not essential particulars: R v Cassell..

11 In Rao v Canterbury (2000) 112 LGERA 360 the defendant was charged with an offence under s 125(1) of the EP&A Act in that he caused a development consent “to be implemented contrary to conditions 6 and 8 of the said consent”. The defendant had submitted that the charge was bad because it failed to identify the essential factual ingredients of the offence. He submitted that the essential element not pleaded was the carrying out of development contrary to the specified conditions of the development consent. Mason P (Dowd and Austin JJ concurring), rejected the submission (at 365):

I do not agree. Each summons is pleaded inelegantly with its reference to causing the development consent to be implemented contrary to the specified conditions in the nominated manner. But the sense of each charge is perfectly clear, namely that conditions of a (necessary) development consent were infringed in the manner stated at the conclusion of each of the charges.

12 Rao was applied in Canterbury City Council v Saad (2000) 112 LGERA 107 in which the Court confirmed the validity of a charge of an offence against s 125 of the Act in that the defendant “did implement development consent No. 589/98 for the demolition of two dwellings and construction of 7 x 3 bedroom townhouses at 2-4 Broadway, Punchbowl contrary to condition 40 of the said consent”.

13 With the principles explained in these cases in mind, I now turn to each of the grounds relied upon by the defendant.

(a) In my opinion the prosecution is not time barred for the following reasons. Section 76A(1) of the EP&A Act contains a prohibition, but it is s 125(1) that imposes an offence referable to such prohibition ( Cooper v Coffs Harbour City Council (1997) 97 LGERA 125 at 130, Rao v Canterbury City Council , at 365). What is prohibited by s 76A(1)? It is, relevantly, the carrying out of development if it is carried out otherwise than in accordance with the consent. As long as there was a non-compliance with condition 60 then any work of carrying out the development was a carrying out thereof otherwise than in accordance with the consent. There was (and is) a non-compliance with condition 60. Upon the commencement of building work on or about 14 March 2002, condition 60 was then infringed. There was then a carrying out of the development between the dates nominated in the summons (9 April 2002 and 2 October 2002) otherwise than in accordance with the consent. As Bignold J pointed out in Canterbury City Council v Saad (at 116 [32]), a finding of guilt may be made upon proof (i) that the defendant was carrying out the development; and (ii) in carrying out the development there was a relevant contravention of a condition of the relevant development consent. Provided there was a carrying out of the development otherwise than in accordance with the consent within six months of the laying of the charge then the prosecution was not and is not time barred.
(b) The summons is not defective. As explained by the Court of Criminal Appeal in Taylor v Environment Protection Authority (and adopted by the Court of Criminal Appeal in McConnell Dowell ) a distinction is drawn between essential factual ingredients and particulars required merely to ensure that the defendant is able to prepare his or her defence. The essential factual ingredients of the offence are, as explained above: that the defendant was carrying out development; and in carrying out that development there was a relevant contravention of a condition of the development consent. This is the prohibition contained in s 76A(1) and which is created an offence by s 125(1). As in Rao , the summons is pleaded inelegantly by reference to the allegation that the defendant “did undertake development” , but the sense of the charge is clear. The essential factual ingredients are identified. The defendant did undertake development (that is, carry out development) otherwise than in accordance with condition 60 of the development consent. The particulars of the way in which the development was carried out otherwise than in accordance with the consent and the facts which demonstrate that are not part of the essential factual ingredients. The sense of the charge is perfectly clear and the sense of the particulars, again inelegantly pleaded, are also nevertheless clear.
(c) The defendant is a proper defendant. As Mr Galasso acknowledges, a development consent operates in rem ( House of Peace Pty Ltd v Bankstown City Council (2000) 48 NSWLR 498 at 504, Hillpalm Pty Ltd v Heaven Door Pty Ltd ). In House of Peace , Mason P (Stein and Giles JJA agreeing) adopted at [23] what was said by Stephen J in Eaton & Sons Pty Ltd v Warringah Shire Council (1972) 129 CLR 270 at 293, namely, a consent is “essentially impersonal in the sense that it does not concern itself with and is not limited to the applicant but is a consent to the world at large in relation to the land which is its subject” . A consent is concerned with the acts done and not with the identity of the actor. Section 76A is in general terms – it is not directed to “the person having the benefit of the development consent” (as in s 81A(2)) - but is rather directed to “a person” . Thus, if “a person” infringes s 76A(1), then that person commits an offence. The defendant corporation is a person (s 21, Interpretation Act 1987). It is a person carrying out development. It has carried it out otherwise than in accordance with the development consent. The question of who was responsible for obtaining the construction certificate so as to comply with condition 60 is irrelevant. The defendant knew that there was no construction certificate for the building work and should have refrained from carrying out the work until the requirements of the condition had been met.

14 Having rejected each of the defendant’s submissions I find beyond reasonable doubt that the offence is proved. The matter is stood over to a date to be fixed for submissions on penalty.

I hereby certify that the preceding 14 paragraphs are a true copy of the reasons for judgment herein of the Honourable Mr Justice Lloyd.

Associate

Dated: 26 May 2003

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