Warringah Council v Moy

[2005] NSWLEC 416

Land and Environment Court

of New South Wales

CITATION:

Warringah Council v Moy [2005] NSWLEC 416

PARTIES:

PROSECUTOR: Warringah Council

DEFENDANT: Moy

FILE NUMBER(S):

50042; 50043 of 2002

CORAM:

Bignold J

KEY ISSUES:

:- Environmental offence - whether issue of construction certificate involved offence - whether accredited certifier held requisite opinion that CC plans not inconsistent with relevant development consent

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979
Environmental Planning and Assessment Regulation 2004
Environmental Planning and Assessment (Amendment) Act 1997

CASES CITED:

Associated Provincial Picture House Ltd v Wednesbury Corporation (1948) 1 KB 223;
Buck v Bavone (1976) 135 CLR 110;
Chin v Ryde City Council (2004) 133 LGERA 312;
Lesnewski v Mosman Municipal Council (2005) 138 LGERA 207;
Macleod v The Queen (2003) 77 ALJR 1047 ;
Meehan v Jones (1982) 149 CLR 571 ;
Minister for Immigration v Eshetu (1999) 197 CLR 611 ;
Moy v Warringah Council (2004) 133 LGERA 49;
Over Our Dead Body Society Inc v Byron Bay Community Association Inc (2001) 116 LGERA 158 ;
Peters v The Queen (1998) 192 CLR 493 ;
Re Diecut Pty Ltd (1963) 8 LGRA 343;
Warringah Council v Moy (2003) 128 LGERA 212

DATES OF HEARING:

28,29,30 June 2004, 1 July 2004, written submissions: 26 July 2004, 23 August 2004, 1 September 2004, 22 October 2004, 24 December 2004, 24 January 2005

 
DATE OF JUDGMENT: 

07/29/2005

LEGAL REPRESENTATIVES:

PROSECUTOR:
Mr G. Miller QC
with Mr T. Howard (Barrister)

SOLICITORS:
Wilshire Webb

DEFENDANT:
Mr P. McEwen SC
with Ms V. Culkoff (Barrister)

SOLICITORS:
S. Klinger

JUDGMENT:

- 22 -

A. INTRODUCTION

1 The Defendant, who is an “accredited certifier” under the Environmental Planning & Assessment Act 1979 (the EP&A Act) is charged with two separate offences under that Act in respect of a construction certificate (No CC2002-08311) he issued on 25 October 2001 in respect of building work (comprising a residential flat building) to be erected on land known as Nos 50-52 Old Pittwater Road Brookvale.

2 The two separate charges allege an offence against each of sections 109ZH(1)(b) and 125(1) of the EP&A Act which respectively provide as follows:

109ZH False representations

(1) A person who:
… …

(b) makes any statement that is false or misleading in a material particular in, or in connection with, a Part 4A certificate or complying development certificate,
is guilty of an offence against this Act.

125(1) Offences against this Act and the regulations
Where any matter or thing is by or under this Act, other than by or under the regulations, directed or forbidden to be done, or where the Minister, the Director-General, a council or any other person is authorised by or under this Act, other than by or under the regulations, to direct any matter or thing to be done, or to forbid any matter or thing to be done, and that matter or thing if so directed to be done remains undone, or if so forbidden to be done is done, a person offending against that direction or prohibition shall be guilty of an offence against this Act.

3 The Defendant has defended both charges, which by consent have been heard together and which factually are very closely related in as much as it is the very content of the construction certificate issued by the Defendant (being the statement required by cl.147(1)(e) of the Regulation to be included in the construction certificate) that is alleged to be the relevant statement that is false or misleading in a material particular in respect of the s109ZH(1) charge. Not only are the two charges very closely related factually but the trial was conducted upon the common basis that it is only if the charge of an offence against s125(1) is established that the charge of an offence against s109ZH can be established.

4 It is for this reason that the trial principally focussed attention upon the charge of the offence against s125(1).

5 Accordingly I shall initially confine my consideration to the charge of the offence against s125(1) of the EP&A Act.

B. THE s125(1) CHARGE

6 By its amended Summons filed on 30 June 2004 (with the leave of the Court and without objection from the Defendant) the Prosecutor alleges an offence under s125(1) of the EP&A Act in that “the Defendant being an accredited certifier … did issue a construction certificate in purported compliance with Part 4A of the Act with respect to (particularised) plans and specifications … in breach of s109F(1)(a) of the Act and cl.145(1)(a) of the Environmental Planning & Assessment Regulation 2000 in that in the circumstances in which the construction certificate was issued the Defendant was not satisfied that the design and construction of the building as depicted in the plans and specifications for the construction certificate were not inconsistent with the (particularised) development consent”.

7 The only (but significant) amendment made to the original summons (that had been filed on 24 April 2002 on the last day of the then prevailing 6 months limitation period prescribed by s127(5) of the EP&A Act) was the substituted averment that in issuing the construction certificate “the Defendant was not (relevantly) satisfied …” for the original averment that “a certifying authority could not be (relevantly) satisfied”.

8 The essential elements of the alleged s125(1) offence are threefold and are as follows:

(i) a matter that is forbidden by the EP&A Act to be done (namely the issue of a construction certificate unless the certifying authority is satisfied that the requirements of the regulations referred to in s81A(5) have been complied with is forbidden by s109F(1)(a));
(ii) is done (namely the issue of the construction certificate);
(iii) by a person offending against that prohibition (namely by the Defendant as the relevant certifying authority without having the requisite satisfaction)

9 In elaboration of essential element (i) it is to be noted that the relevant prohibition is conditional and that the only relevant “requirement of the regulations” that is raised by the present charge is (as stated in the amended summons) the requirement imposed by cl.145(1)(a) of the regulation that states:

145 Compliance with development consent and Building Code of Australia


(1) A certifying authority must not issue a construction certificate for building work unless it is satisfied of the following matters:

(a) that the design and construction of the building (as depicted in the plans and specifications and as described in any other information furnished to the certifying authority under clause 140) are not inconsistent with the development consent,

10 It is the role and effect of cl.145(1)(a) of the Regulation in the present case (which became the focal point of the issues raised at the trial) that raises a serious question (which unfortunately was not addressed at the trial) as to whether the present charge involves a matter or thing forbidden to be done “by or under the Act, other than by or under the regulations”.

11 That question is vitally important because it concerns the definition of the nature and scope of the offence(s) created by s125(1) of the EP& A Act (cf Chin v Ryde City Council (2004) 133 LGERA 312) in contradistinction to the counterpart offence(s) created by s125(2) of the EP&A Act in respect of the regulations.

12 Moreover the question goes to the jurisdiction of this Court because although the Court has jurisdiction in respect of a charge of an offence against s125(1) it does not have jurisdiction in respect of a charge of an offence against s125(2): vide s127(1) & (2) of the EP&A Act.

13 Thus the question necessarily raised by the Prosecutor’s reliance on cl.145(1)(a) of the Regulation in support of the s125(1) charge, though concerning the vital subjects of (i) the essential elements of the s125(1) offence and (ii) the Court’s jurisdiction to hear and determine the charge of the s125(1) offence, has not been addressed at the trial.

14 In the absence of argument on the question I do not think that I should determine it (despite its self-evident importance) but instead I shall proceed upon the assumption that it is s109F(1)(a) that relevantly prescribes “a matter or things that is forbidden to be done by or under the Act” within the meaning of s125(1) of the EP&A Act and that it is that prescription that provides one of the essential elements of the s125(1) offence charged against the Defendant.

15 However so to proceed inevitably means that attention should properly be directed to s109F(1)(a) of the EP&A Act since in the present case, it provides the relevant “prohibition” for the purposes of the offence created by s125(1).

16 Sections 109F(1)(a) (and related s81A(5)) provide as follows:

109F Restriction on issue of construction certificates
(1) A construction certificate must not be issued with respect to the plans and specifications for any building work or subdivision work unless the certifying authority is satisfied that:
(a) the requirements of the regulations referred to in section 81A (5) have been complied with, and

81A
(5) Regulations may provide for the issue of certificates
The regulations may make provision concerning the issue of certificates for the erection of buildings and the subdivision of land.

17 Whereas s109F(1)(a) may in the present case ultimately concentrate attention on cl.145(1)(a) of the Regulation it must be appreciated that the two statutory provisions are by no means co-extensive in their scope and operation.

18 Most obviously s109F(1)(a) in referring to “the requirements of the regulations referred to in s81A(5)” is referring to such requirements generally but the question that arises is what is the precise content of the relevant “requirements”, particularly once it is appreciated that Part 8 of the Regulation under the heading “Certification of Development” contains many clauses including in Division 2 (headed “Construction Certificates”) some 12 separate clauses including cl.145(1) which imposes a particular and specific restraint or limitation on the issue of a construction certificate “unless the certifying authority is satisfied” of specified matters.

19 The nature of that express restraint or limitation will need to be more closely examined but it is apparent that the requisite “satisfaction” of the certifying authority is an anterior obligation which is separate (in the form of a condition precedent) from his power to determine an application for a construction certificate (cf the analysis by Gummow J in Minister for Immigration v Eshetu (1999) 197 CLR 611 at 647 of the statutory power conferred upon the Minister by s65 of the Commonwealth Migration Act 1958).

20 Accordingly whereas it may readily be concluded that cl.145(1)(a) constitutes “a provision of the regulations concerning the issue of certificates for the erection of buildings…” within the meaning of s81A(5) that fact does not necessarily qualify it as “a requirement of the regulations” within the meaning of s109F(1)(a).

21 In this respect it is to be noted that the expression “the requirements of the regulations referred to in s81A(5)” is commonly employed in s109F(1)(a) and in the definition of “construction certificate contained in s109C(1)(b). If, as appears to be clearly the case, the purpose and effect of c.145(1)(a) is to impose a restraint or limitation on the power for a certifying authority to issue a construction certificate it may be that it is a particular requirement of the regulations “concerning the issue of a construction certificate” (see s81A(5)) and is separate from the requirements of the regulations in respect of which “building work completed in accordance with specified plans and specifications will comply” (see s109C(1)(b)).

22 Notwithstanding these difficulties (which were not explored at the trial) the only issue in dispute was narrowed to the question whether the obligation cast upon the Defendant by cl.145(1)(a) had been offended by him. Moreover this issue was addressed directly rather than being mediated via s109F(1)(a). The single issue was whether the Defendant in issuing the construction certificate was not satisfied that the design and construction of the building (as depicted in the plans and specifications referred to in the construction certificate) was not inconsistent with the relevant development consent.

23 In presenting this single disputed issue it is to be noted that the following facts relevant to the charge were agreed (Exhibit 1):

(i) the Defendant at all material times was an accredited certifier;

(ii) in that capacity he issued on 25 October 2001 the relevant construction certificate;

(iii) the construction certificate was issued in respect of plans and specifications agreed in the evidence (Exhibits 5 & 6)

(iv) the relevant development consent was that which was granted by or on behalf of the Prosecutor on 1 August 2001 in the terms of the statutory notice of determination (a copy of which is annexure ‘B’) to the affidavit of Peter Andrew Robinson sworn 23 April 2002) and the approved plans referred to in condition 1 of the development consent were agreed in the evidence (Exhibit 2)

C. THE PROSECUTION CASE AT TRIAL

24 I should note that the trial of the charges was necessarily delayed by virtue of interlocutory proceedings taken by the Defendant which had sought a permanent stay of the proceedings on the grounds of abuse of process or unfairness.

25 The relief claimed by the Defendant in these interlocutory proceedings was founded on the fact that this Court in a judgment of Commissioner Murrell delivered on 22 August 2002 had granted a modification of the development consent (which modifications had included, but were more extensive than, the changes to the development consent that had been depicted in the plans the subject of the construction certificate issued by the Defendant.)

26 In my judgment delivered on 22 August 2003 I dismissed the Defendant’s motion seeking a permanent stay of the current prosecutions (see Warringah Council v Moy (2003) 128 LGERA 212) and on 29 March 2004 the Court of Criminal Appeal delivered its judgment on the Defendant’s application for leave to appeal my decision by granting leave and dismissing the appeal (see Moy v Warringah Council (2004) 133 LGERA 49).

27 The Prosecutor’s case at trial upon the sole issue in dispute presented by the parties was based upon the agreed primary documentary materials so that the Court could appreciate for itself the content of the relevant construction certificate issued by the Defendant and the contents of the plans and specifications the subject of that construction certificate and the content of the relevant development consent, together with expert evidence given by two witnesses (Mr Michael Wynn-Jones and Mr Brendan Bennett, both accredited certifiers under the EP&A Act) giving their analyses of, and opinions on, the differences shown in the two sets of plans of the approved residential flat building – one set being the plans referred to in condition 1 of the relevant development consent (the DC plans) and the other set being the plans referred to in the relevant construction certificate (the CC plans).

28 Both expert witnesses called by the Prosecutor expressed opinions to the following effect:

(i) the differences between the DC plans and the CC plans were significant;

(ii) the design and construction of the building as depicted in the CC plans and specifications were inconsistent with the DC plans; and

(iii) no reasonable certifier could have been genuinely or properly satisfied that the design and construction of the building as shown on the CC plans was not inconsistent with the building as shown in the DC plans given the degree of differences identified between the two sets of plans.

29 I do not think it necessary to here repeat in its infinite detail the differences between the two sets of plans that are identified in the evidence of the Prosecution expert witnesses. Much of the detail was particularised in the Summons and is quoted in my earlier judgment at p216.

30 It is, I think, sufficient to say that the differences between the two sets of plans that are identified in the evidence of the Prosecution witnesses supports the following factual summary that was included in Senior Prosecuting Counsel’s written submissions:

(a) Natural ground levels

· Differences of between .855m – 1.5m

(b) Finished ground levels at corners of building

· Differences of between .7m – 1.1m

(c) The length of building and front setback

· Reduced street frontage setback and increase length of building by approximately 1.25m

· The Prosecution concedes that these differences are to be adjusted by deducting .45m - .5m for compliance with BCA given a figure of between .75m - .8m. [refer 29/6/04 T 56/57]

(d) Reduction in side east and west setbacks

· East units 4/5 - .8m

· West units 1/8 - .5m

(e) Height of building above finished ground level

· An increase of between .3m - .6m on the front (south elevation)

(f) Floor levels

· Basement floor level. An increase in height of 1.55m – carpark went from below ground to above ground and deletion of mechanical ventilation and alteration to drainage

· Ground floor increase in height of 1.3m

· First floor increase in height of .9m

· First floor ceiling level increase in height of .8m

· Top of roof capping level, increase in height of .8m

(g) External opening (windows or doors)

· Changes to 77 of the external openings on the D.C. (out of a total of 79) by either increase in height, wider, larger, narrower or removed (98% of the openings)

· 20 external openings have an increase in height in the C.C. plans (25% of the openings on the D.C. plans)

· 22 external openings larger on the C.C. plans (28% of the openings on the D.C. plans)

· 14 external openings are removed on the C.C plans when compared to the D.C. plans (18% of the openings on the D.C. plans)

· 18 of the external openings are considered wider on the C.C. plans (23% of the openings in the building as shown on D.C. plans)

(h) Changes in length and/or width of balconies

· units 8,1,3,4,5

(i) Changes to the floor areas

· 14 of the 16 units of between 1.5m2 – 8m2

(j) Changes to the layout of all the units

· detailed at item 15 pages 6-11 in annexure “A1”

(k) External finish

· Change form face brick work to rendered finish from ground level to window sills of the top storey

31 Before evaluating the credibility and cogency of the Prosecution’s expert evidence (which I shall later demonstrate to be seriously, if not fatally, flawed because it does not address the correct question posed by cl.145(1)(a)) I pause to consider the anterior question whether the evidence (even taken at its highest) is legally capable of establishing to the criminal standard of proof the fact that the Defendant in issuing the construction certificate lacked the requisite “satisfaction” and hence offended the relevant statutory obligation “not to issue” the construction certificate.

32 I take this course because it requires the elucidation of the true meaning and effect of the statutory limitation or restraint upon the power of a certifying authority to issue a construction certificate, and in particular it will clarify the meaning and content of the statutory expression “unless it (the certifying authority) is satisfied … etc”.

33 Without such clarification, which in turn will clarify the precise issue required to be proved by the Prosecutor, there can be no proper evaluation of the evidence.

34 If it be the case (as Senior Prosecutor initially accepted) that it was for the Prosecution to prove that the Defendant was not relevantly satisfied that the design and construction of the approved building as depicted in the CC plans were not inconsistent with the relevant development consent, it is obvious that the Prosecution evidence clearly would have failed to establish that fact according to the criminal standard of proof beyond reasonable doubt. In this respect the opinions of other accredited certifiers such as Mr Wynn-Jones and Mr Bennett formed on the basis of their comparisons of the DC plans and the CC plans were simply incapable of proving that the Defendant lacked the requisite satisfaction.

35 No doubt in recognition of the inevitable failure of this opinion evidence to prove this essential element of the offence Senior Prosecuting Counsel relied upon the opinion from the Prosecution expert witnesses that no reasonable certifier could have been genuinely or properly satisfied of the requisite matter. However this additional opinion evidence is only admissible if the Prosecutor is correct in asserting that “the conduct of the Defendant in issuing the construction certificate is to be judged by reference to an objective standard (so that) if the Court is satisfied that a person in the position of the Defendant, acting reasonably, would not have been satisfied then the offence is made out”: para 6.2 of the written submissions.

36 Two sources of suggested analogical reasoning were advanced in support of this submission, namely

(i) the decisions of the High Court of Australia in Peters v The Queen (1998) 192 CLR 493 and Macleod v The Queen (2003) 77 ALJR 1047 for their discussion of the standard of dishonesty involved in offences such as conspiracy to defraud ( Peters ); and

(ii) the judicial review jurisdiction involving “ Wednesbury ” unreasonableness ( Associated Provincial Picture House Ltd v Wednesbury Corporation (1948) 1 KB 223).

37 In my respectful opinion the Prosecutor’s submission must be rejected. Since the s125(1) offence involves no element of dishonesty the decisions of the High Court referred to by the Prosecutor do not provide guidance either directly or analogically. I know of no case where the doctrine or concept of “Wednesbury” unreasonableness has been translated to the elucidation of the elements or scope of a criminal offence.

38 The statutory language commonly employed by s109F(1)(a) and cl.145(1)(a) of the Regulation concerning the requisite satisfaction on the part of the certifying authority more naturally yields and supports an interpretation of the express limitation or restraint on the power of the certifying authority to issue a construction certificate according to the subjective standard. This interpretation is enhanced in the context of defining an essential ingredient of the s125(1) offence.

39 In different contexts a requirement that a stipulated person must be satisfied of a stipulated matter may give rise to the question whether the requisite satisfaction is intended to be based upon the subjective or objective standard. In a context involving stipulations in a contract for sale of land for the purchaser to be satisfied of stipulated matters (eg obtaining finance on satisfactory terms) the High Court in Meehan v Jones (1982) 149 CLR 571 held that the stipulations required the purchaser personally to be satisfied (rather than requiring the satisfaction of a hypothetical reasonable man).

40 Gibbs CJ at 581 stated:

Such a condition is generally entirely for the protection of the purchaser and it is the satisfaction of the purchaser, not that of some hypothetical reasonable man, that will satisfy the condition. No doubt it may be implied that the purchaser will act honestly in deciding whether or not he is satisfied.

41 Wilson J at 597 favoured a similar view to that of the Chief Justice, but like Mason J (at 591) refrained from expressing a concluded view as to whether there should be implied an obligation on the part of the purchaser to act “reasonably” as well as “honestly” in reaching a decision as to whether the terms and conditions of the obtainable finance were “satisfactory”.

42 Murphy J at 597 preferred a construction of the stipulation that provided the purchaser with an “unlimited discretion” as to whether the terms of the finance were “satisfactory” to him.

43 In a different context (Buck v Bavone (1976) 135 CLR 110) involving a defence under s92 of the Federal Constitution based upon a provision of the South Australian Potato Marketing Act 1948 requiring registration of the potato grower whose obtaining registration depended upon the “satisfaction” of a statutory Board that in the registration period the applicant would be growing potatoes for sale Barwick CJ, in dissent, at 116 held that the “satisfaction of the Board is subjective”. In the course of his judgment forming part of the majority Gibbs J said at 118:

It is not uncommon for statutes to provide that a board or other authority shall or may take certain action if it is satisfied of the existence of certain matters specified in the statute. Whether the decision of the authority under such a statute can be effectively reviewed by the courts will often largely depend on the nature of the matters of which the authority is required to be satisfied. In all such cases the authority must act in good faith; it cannot act merely arbitrarily or capriciously.

44 In the present case in my opinion the proper interpretation of the relevant statutory phrases appearing in s109F(1)(a) and cl.145(1)(a) of the Regulation “unless the certifying authority is satisfied …” is that the requisite “satisfaction” is required to be according to the subjective standard, and not according to an objective standard, recognising that subjective standard may imply the obligation on the part of the certifying authority to honestly attain the requisite satisfaction.

45 In so holding I would reject the Prosecution’s submission that unless an objective standard is applied the relevant statutory limitations or restraints on the power of a certifying authority to issue a construction certificate would be rendered nugatory, it being suggested by way of illustration that a certifying authority might maintain (and genuinely believe it to be so) that a 4 storey building was consistent with a 2 storey building. I reject the submission principally because it wholly fails to appreciate the rationale and regime of the system of private certification by accredited certifiers created by Parts 4A, 4B and 4C of the EP&A Act and Part 8 of the Regulation (see Over Our Dead Body Society Inc v Byron Bay Community Association Inc (2001) 116 LGERA 158 at 166-168). That regime includes the proper accreditation or private certifiers and the extensive supervision of private certifiers including the machinery for disciplinary action to be taken in respect of professional misconduct. Secondly the submission ignores the fact that the issue of construction certificates is amenable to the process of judicial review (which includes “Wednesbury” unreasonableness) – see Lesnewski v Mosman Municipal Council (2005) 138 LGERA 207.

46 Finally it presupposes that recourse to the criminal law for the supervision and enforcement of the statutory duties imposed by the EP&A Act and Regulation upon accredited certifiers is intended as an available alternative to civil enforcement and professional disciplinary action when an overall consideration of the statutory regime for certification of development contained in Parts 4A, 4B and 4C of the EP&A Act (which were introduced into the Act by the Environmental Planning & Assessment (Amendment) Act 1997 (Act No 152 of 1997) suggest that except for the specific offences created by Division 4 of Part 4B these Parts may have been intended to operate as a self-contained code within the EP&A Act without intending any reliance upon the pre-existing general criminal liability created by s125 (cf the reasoning of the Full Court of the Supreme Court in Re Diecut Pty Ltd (1963) 8 LGRA 343 in holding that a contravention of a demolition order did not qualify as an offence against s632 of the Local Government Act 1919 (which was an all embracing general offence creating provision strikingly similar in structure and content to s125(1) of the EP&A Act).

47 For all of the foregoing reasons I would reject the Prosecutor’s submissions and hold that the relevant statutory limitation imposed by s109F(1)(a) and cl.145(1)(a) on the power of a certifying authority to issue a construction certificate by reference to the requisite satisfaction on the part of the certifying authority treats that satisfaction according to the subjective standard.

48 This conclusion is entirely consistent with the analysis of cl.145(1)(a) adopted by the Court of Appeal in its recent decision in Lesnewski involving an attack in civil proceedings on the validity of a construction certificate based upon (a) alleged breach of cl.145(1)(a) and (b) “Wednesbury” unreasonableness.

49 Had this interpretation of the relevant statutory provisions been established at the time the Prosecution case closed the Defendant would have been presented with the opportunity to advance a submission of “no case to answer”. However in the event the Defendant himself gave evidence and I must now consider whether that evidence has incriminated him and provided the Prosecution with the opportunity and means to overcome the deficiencies in its own evidence.

50 The Defendant’s evidence comprises his affidavit sworn 25 June 2004 (substantially based upon a draft he had prepared in 2002) and his oral testimony.

51 His affidavit canvasses his vast professional experience including as a Municipal Health and Building Surveyor working for 24 years successively for four different Sydney metropolitan councils before becoming a private building consultant in 1998 including being an accredited certifier under the EP&A Act since the present statutory scheme commenced in February 1999.

52 Since 1999 the Defendant’s private companies have approved and carried out inspections on more than 15,000 buildings, of which number the Defendant has been personally involved in some 2300 cases.

53 In his affidavit the Defendant refers to the fact that under the statutory scheme for private accredited certifiers there has been no formal training or education and little provided by way of guidelines to assist accredited certifiers other than a Practice Note issued by the then Department of Urban Affairs & Planning in September 1999 providing some guidance for the issue of construction certificates. The Defendant was aware of the contents of this Practice Note and he was aware of the relevant requirements of the Regulations and in particular he was aware of the relevant “test” that a construction certificate must be “not inconsistent” with the relevant development consent.

54 In paragraphs 15 to 30 of his affidavit the Defendant fully narrates his involvement in the case leading to his issuing of the relevant construction certificate. That narration includes particular conversations he had with the client (the developer) Mr Harold McIntosh and it also includes particular conversations the Defendant had with Mr Peter Robinson the Council’s Town Planner who had been chiefly involved in the grant of the relevant development consent.

55 Although the Defendant’s narration was of events occurring up to 3 years earlier the affidavit was supported by copies of contemporaneous written and faxed communications between himself and the client. Moreover in so far as the narration included conversations with Mr Robinson (which the latter could not in his testimony recall) that was supported by reasonably contemporaneous file notes and recorded recollections of the Defendant during the early months of 2002 when he was aware that the Prosecutor had issued a stop work notice on the project that was under investigation. That investigation also included the Defendant’s role in issuing the relevant construction certificate. Moreover as I have earlier noted the Defendant’s affidavit was also substantially based upon a draft affidavit that he had prepared in 2002 on or about the time that he was served with the two present summonses.

56 Having regard to the obvious importance to the Defendant of the Prosecutor’s investigations and subsequent prosecutions it is entirely plausible that his relatively contemporaneous notes would be detailed and that his recollection of events would be sharply focussed.

57 Moreover I found the Defendant’s oral testimony to be entirely credible and reliable. Obviously and naturally he was upset by the “whole affair” involved in the prosecutions, but the expression of this natural emotion did not, in my evaluation of the Defendant’s testimony, in any way undermine his evidence, which I have ultimately found to be honest and reliable and persuasive on the single issue in dispute.

58 In paragraphs 31 to 44 of his affidavit the Defendant recalls his actions and reasoning processes leading up to his issuing the relevant construction certificate on 25 October 2001 after receiving the CC plans on 19 October 2001. The following extracts from his affidavit are intended, I take it, to encapsulate the Defendant’s relevant actions and reasoning process:

41. Critical to my assessment were the following matters:


(a) overall, I observed that the set-backs remained the same on the plans for both the DA and CC.

(b) the height of the building (although slightly higher as a result of the elevation of the basement carpark) remained under the height limitation imposed by Council. I observed visually that the height of the building as depicted in the DA and CC fell below the height limitation shown by the broken line on both plans.

(c) the bulk and scale of the building was generally the same in the DA and CC plans.

42. Based on my assessment, I formed the view that the CC plans were not inconsistent with and generally in accordance with the DA plans. In reaching this decision I also noted that Condition 1 of the DA plans stated:

“Development being generally in accordance with plans numbered DA 01, 03, 04, 05 and 07 Issue B & DA Issue C, dated March 2001, submitted 10 May 2001 and 8 June 2001 as modified in red and by any conditions of this consent/approval (C1)”.


43. This condition, in my opinion, allowed for variations in the CC plans provided such variation were generally in accordance or consistent with the DA. In my opinion the variations contained in the CC were acceptable and within the meaning of being both “not inconsistent with” and “generally in accordance with” the DA. The whole building remained within the original envelope as required and stipulated by Council. I was of the belief then and I remain of that belief now.

44. I accordingly issued the CC on 25 October 2001.

59 The cross-examination of the Defendant did not, in my evaluation of his testimony, in any material manner or degree, dislodge the Defendant’s stated position. Significantly the cross-examination did not demonstrate any fundamental misunderstanding or misconception on the part of the Defendant concerning any aspect of his statutory obligation as an accredited certifier or of his particular obligation under cl.145(1)(a) of the Regulation.

60 This last mentioned finding means that it is not necessary in the present case for the Court to itself expound the nature and content of the relevant obligation imposed by cl.145(1)(a) of the Regulation since it has not been demonstrated that the Defendant laboured under any misapprehension or misunderstanding of his duty. The Court of Criminal Appeal in Moy proffered some relevant interpretations and I do not think I need add to the already expansive body of judicial opinion on this subject, which after all only involves ordinary English words without them having acquired any technical meaning.

61 My ultimate evaluation of the Defendant’s overall testimony is that it does not provide meaningful support the Prosecutor’s case. Far less does it contain any incriminating content or element that even comes remotely close to proving beyond reasonable doubt that the Defendant in issuing the construction certificate lacked the requisite “satisfaction” in terms of cl.145(1)(a) of the Regulation.

62 For completeness I return to my postponed ultimate evaluation of the expert evidence led in the Prosecution case.

63 As earlier anticipated I find this evidence to be seriously flawed for the reason that the opinions of the Prosecution expert witnesses have not considered or addressed the statutory test imposed by cl.145(1)(a) which requires a comparison (yielding the result of “not inconsistent”) between:

(i) the design and construction of the building (as depicted in the CC plans and specifications) and

(ii) the development consent.

64 The fundamental flaw in the evidence of Mr Wynn-Jones and Mr Bennett is that they have regarded the relevant “development consent” to be the DC plans whereas the relevant development consent is self-evidently something quite different. In the present case the relevant “development consent” is the development consent granted to a specific development application (which was not in evidence but its reference number 2001/422 DA is quoted in the Council’s Notice of Determination – being annexure “B” to Mr Robinson’s affidavit sworn 23 April 2002).

65 That Notice of Determination describes the development consent as “Consent 2001/422 DA granted subject to conditions described below”. Thereafter some 61 separate conditions are stipulated including most materially the following:

1. Development being generally in accordance with plans numbered DA 01, 03, 04, 05 and 07 Issue B & DA Issue C, dated March 2001, submitted 10 May 2001 and 8 June 2001 as modified in red and by any conditions of this consent/approval (C1).

66 The reference to the DC plans being “as modified in red” is a reference to the red notations superimposed on Drawing DA-02 Issue B which include:

(i) the striking through of the word “courtyard” appearing 8 times on that plan representing the proposed enclosed courtyards at ground level for each of the 8 proposed units shown on that plan;

(ii) the similar striking through of the proposed enclosure walls defining each of those courtyards;

(iii) the written notation stating:

No fences to be located within statutory setback. All these areas to be common property.

67 Other conditions that appear to involve or require some modification to the approved development are conditions 3, 7, 12, 18, 20 and 60.

68 In addition to the 61 conditions stipulated in the development consent there is the need to consider the impact on the approved development of any “prescribed conditions” because s80A(11) of the EP&A Act provides that “a development consent is subject to such conditions as may be prescribed by the regulations”. Relevantly cl.98(1) of the Regulation prescribes two conditions in respect of a development consent that involves any “building work” including the following condition:

(a) that the work must be carried out in accordance with the requirements of the Building Code of Australia

69 Neither of the Prosecution expert witnesses in forming their relevant opinions or giving their testimony had given any prior consideration to the effect of Condition 1 of the development consent or indeed of any other condition imposed on the grant of that development consent which might actually or potentially modify the DC plans.

70 Their opinions were accordingly based upon a seriously erroneous assumption that the relevant development consent (the terms and ambit of which is vital to the operation of cl.145(1)(a) of the Regulation) was simply the DC plans.

71 Not only was the import of the DC plans significantly modified by Condition 1 of the development consent only requiring the approved development “to be generally in accordance with” those plans (injecting an obvious degree of flexibility) but the plans were specifically modified by the red notations superimposed on one of the plans (as I have earlier noted) and were either actually or potentially modified by the impact of other conditions.

72 The full potential of these impacts was simply not explored in the evidence and the Prosecution experts had formed their opinions without any regard whatsoever to the conditions of development consent and their actual or potential modification of the DC plans in respect of which the relevant development consent required the approved development to be “generally in accordance with”.

73 This seriously erroneous foundation for the expert opinions expressed by Mr Wynn-Jones and Mr Bennett seriously, if not fatally, undermines their opinions concerning the crucial issue whether the Defendant in issuing the relevant construction certificate offended the statutory obligation imposed by cl.145(1)(a) in the manner contended for by the Prosecution.

74 In these circumstances I am not prepared to accept as reliable the opinion advanced by the Prosecution witnesses in support of the Prosecution case that the Defendant in issuing the relevant construction certificate lacked the requisite satisfaction.

75 My rejection of the opinions of the Prosecution expert witnesses means that the Prosecution evidence has failed to establish that the Defendant in issuing the relevant construction certificate lacked the requisite satisfaction and hence offended against cl.145(1)(a), s109F(1)(a) or s125(1).

76 For completeness I should note that this conclusion applies whether the requisite satisfaction is according to the standard of “subjective” satisfaction (as I have held it to be) or is according to the standard of “objective” satisfaction (being the standard that was advanced by the Prosecutor but which I have earlier rejected).

D. CONCLUSIONS AND ORDERS

77 It follows that the Defendant is entitled to an acquittal of the s125(1) charge and it further follows from this conclusion for the reasons earlier given that he is likewise entitled to be acquitted of the s109ZH charge.

78 However since the Prosecutor has asked (with the concurrence of Senior Defence Counsel) that I not pronounce formal orders until it has had the opportunity to consider my reasons for judgment with a view to exercising any rights that may be available under the Criminal Appeal Act 1912 I should now merely record my finding that the Prosecution has not proven beyond reasonable doubt the guilt of the Defendant in respect of either charge and postpone the making of final orders until 19 August 2005, to which date both proceedings are stood over.