Willoughby City Council v Bechara

[2003] NSWLEC 71

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Reported Decision: 124 LGERA 416

Land and Environment Court

of New South Wales

CITATION:	Willoughby City Council v Bechara; Dasco Design And Construction Pty Limited [2003] NSWLEC 71
PARTIES:	PROSECUTOR: Willoughby City Council DEFENDANTS: Bechara; Dasco Design and Construction Pty Limited;
FILE NUMBER(S):	50058; 50059; 50060; 50061; 50062; 50063; 50064; 50065 of 2000
CORAM:	Bignold J
KEY ISSUES:	Environmental Offences :- Carrying out development without development consent or otherwise than in accordance with approved plans-Effect on sentence of subsequent grant of s 96 approval.
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979, s 76A, 125
CASES CITED:
DATES OF HEARING:	14/03/2002
EX TEMPORE JUDGMENT DATE :	03/14/2002
LEGAL REPRESENTATIVES:	PROSECUTOR: Mr R Lancaster, Barrister SOLCITORS Mallesons FIRST DEFENDANT: In person SECOND DEFENDANT: Mr C Leggat, Barrister SOLICITORS FIRST DEFENDANT N/A SECOND DEFENDANT Taylor Kelso

JUDGMENT:

IN THE LAND AND

Matter No. 50058-65 of 2000

ENVIRONMENT COURT OF

Coram: Bignold J.

NEW SOUTH WALES

14 March 2002

WILLOUGHBY CITY COUNCIL

Prosecutor

v

BECHARA

Defendant

WILLOUGHBY CITY COUNCIL

Prosecutor

DASCO DESIGN AND CONSTRUCTION PTY LTD

Defendant

JUDGMENT

Bignold J:

1. The Court has heard by consent four charges of an offence against the Environmental Planning and Assessment Act 1979, (EP&A Act) s 76A brought against the Defendant, Dasco Design and Construction Pty Limited together with four charges of the same offence brought against the Defendant Kalam Bechara.

2. Each of the offences had been admitted by each of the Defendants entering a plea of guilty to each of the charges at the earliest opportunity after the Summonses were filed in this Court.

3. The particulars of the offences as revealed in the summonses indicate the commission of the offences at four particular times during the life of the implementation of a development consent granted by the Council of the City of Willoughby for the erection of a dwelling house of two storeys with a swimming pool on 14 December 1998 at premises known as 65 Sunnyside Crescent Castlecrag owned by the Defendant Mr Bechara as joint tenant with his wife.

4. The Defendant Dasco Design Construction had been retained by Mr and Mrs Bechara to build the approved dwelling house. The necessary construction certificate was issued pursuant to the EP&A Act, by the Council on 5 March 1999.

5. As I have mentioned, the offences occurred over a period of time commencing on 11 October 1999 and concluding on 2 August 2000. The offence committed on 11 October concerned the pouring of the concrete slab for the roof of the dwelling over the entire roof plane instead of providing for a pergola in a section of that roof.

6. The offence committed between 11 May 2000 and 20 July 2000 involved the construction of a steel frame for a glass top roof light well to the dwelling under construction when the approved plans contemplated a concrete material and not a glass material, roofing that light well.

7. The third offence, which was committed between 29 March 2000 and 2 August 2000 involved the installation of cables and conduits for an air-conditioning system to service the approved dwelling when no such approval had been granted and the fourth offence was committed between the period of 21 June 2000 and 20 July 2000 and involved additional site excavation and the construction of brickwork for a spa to be added to the approved in-ground swimming pool at the rear of the subject premises.

8. For much of that overall period 11 October 1999 to 20 July 2000 the Defendants had before the Council a s 96 application under the EP&A Act, seeking the modification of the approved dwelling house development, to accommodate a number of changes to the approved development including the matters the subject of the four present charges. Additionally, toward the end of the period it should be noted that the Council commenced civil enforcement proceedings against the present Defendants in class 4 proceedings 40094 of 2000 seeking declaratory and injunctive relief against the Respondents in respect of a large number of works said to be carried out without the requisite approval or as alternatively expressed carried out contrary to the approved development plans and construction certificate.

9. Those proceedings were concluded after a hearing on 9, 30 and 31 August 2000 with the delivery of my judgment in the matter on 13 December 2000, in which I declared that the Respondents had carried out works particularised in the Annexure A to the judgment in breach of the EP&A Act 1979, s 76A and a mandatory injunction requiring the Respondents to execute specified rectification works: see Willoughby City Council v Dasco Design and Construction Pty Ltd (2000) 111LGERA 422

10. The mandatory injunction was suspended for a period of four months so that the Respondents had the opportunity to make an application to the Council to regularise the breaches of the Act with liberty to apply for any reasonable extension of the suspension.

11. By consent orders made by the Court on 30 January 2002, the mandatory injunction contained in order 2 of my judgment of 13 December 2000 was dissolved when orders 2 and 3 contained in my judgment were, by consent, vacated.

12. The background circumstances to that action have now been explained in the evidence presented in prosecution of the present charges, namely the grant by the Council on 1 November 2001 of the s 96 modification application made by the Respondents to regularise the breaches of the Act and the subsequent grant on 9 November 2001 of a construction certificate to the works undertaken and referred to in the s 96 application.

13. The class 4 proceedings and their ultimate outcome reflecting the fact that the Council in recent times has granted the requisite ex post facto approvals to regularise the breaches of the Act have some relevance to the present proceedings in as much as they give colour and content and assist the evaluation of the seriousness of the charges to which each Defendant has entered a plea of guilty.

14. I should mention that Mr Bechara was unrepresented at the hearing today and made brief submissions to the Court but called no evidence. He did not, however, object to the Council’s reading of a large number of affidavits sworn by Council officers or servants and by three residences, also living in Sunnyside Crescent Castlecrag. He also agreed to the Agreed Statement of Facts which had earlier been agreed to by the Defendant Dasco Design and Construction Pty Limited.

15. Prosecuting Counsel rightly, in my opinion, conceded that the offences admitted in the present case in an overall sense cannot be regarded as serious offences and the point was taken up by Counsel for the Defendant Dasco Design Constructions when he invited me to compare the approved plans for the dwelling house with the plans of the dwelling house as built which have been adopted by the recent approvals of the Council in issuing the s 96 modification and the construction certificate of the building as built.

16. A comparison of the two sets of plans vindicates and supports Defence Counsel submission that the nature of the offending works is relatively insignificant having regard to the approved dwelling house and the ultimately approved, as built, plans.

17. Nonetheless, prosecuting Counsel has submitted that notwithstanding the relatively insignificant nature of the offences considered objectively, the Court should have regard to the element of subjective culpability involved in the commission of the offences. To this end, he has submitted that both Defendants have considerable experience in the building and development industry and that both Defendants in their own right have been involved in other approved building and development projects within the city of Willoughby—the Defendant, Mr Bechara having been involved in four previous projects involving residential flat buildings before his involvement in the present case and the Defendant Dasco Design having been involved in four separate projects involving residential flat buildings different from those in which the Defendant Mr Bechara was involved.

18. Prosecuting Counsel, also in terms of the Defendants’ respective subjective culpabilities invites the Court to make adverse findings against each of the Defendants inasmuch as it has been submitted that the evidence tendered in the prosecution case establishes a deliberate defiance of the authority of the Council and the Council officers in terms of the need for Council officers or servants to regularly attend the site involving them in a degree of supervision of a project of this nature, namely a dwelling house, far more extensively than is commonly required in the Council’s oversight of approved building projects and also in the dealings between the Defendants and neighbouring residents of Sunnyside Crescent, who in the main were complaining vociferously and consistently against what they apprehended, not without justification, to be deviations from the approved plans in the course of the Defendants’ building the dwelling house project. As with the civil enforcement action, so today, evidence has been given of the on-site Council Inspection Committee meeting, that occurred at the end of May 2000 when the Committee of Council had had delegated to it the function of carrying out the inspection with the capacity to grant approval to the then pending s 96 modification application.

19. Mr Nicholas, the director of the company, the Defendant Dasco Design, has referred to the meeting in his affidavit and in his evidence and as in the civil case so again, in his testimony here, has stated that he believed that the business transacted at the Committee on-site inspection meeting on 29 May approved the then pending s 96 modification application.

20. Mr Bechara in his submissions has drawn attention to a conversation deposed to by Mr Guy, the Council’s Health and Building Surveyor, that occurred a few days after that meeting when Mr Bechara attended the Council’s offices and spoke with Mr Guy, I read from paragraphs 51 and 52 of Mr Guy’s affidavit of 9 October 2000, (Exhibit 2) Mr Bechara said “Thank you very much, I appreciate what you said at the meeting, is there anything else you need from me?” Mr Guy answered “No”.

21. In his affidavit Mr Guy gives his understanding of Mr Bechara’s question. It appears that that understanding which was different from Mr Bechara’s. Consequently the parties to the conversation appear to have been ultimately at cross purposes, but nonetheless both Mr Bechara and Mr Nicholas have indicated that they believed that they had obtained the approval of the s 96 modification application.

22. Prosecuting Counsel has cross-examined Mr Nicholas on this matter today. Mr Nicholas has maintained his belief that the meeting approved of the application. Prosecuting Counsel however has submitted, based upon the entire cross-examination today, that Mr Nicholas as an experienced builder developer ought to have appreciated that something more formal and certain was required before he could safely proceed upon his impression no matter how honestly held, and that it was not ultimately reasonable for such a belief to be held by a person with his experience in the building and development industry. The same could be said of Mr Bechara, although he has not given evidence on this matter, but he too obviously is an experienced person in the building and development industry.

23. Be that as it may, Prosecuting Counsel particularly relies upon the subsequent conversation between Mr Guy and Mr Bechara on 23 June 2000 when Mr Guy made it very clear to Mr Bechara that the Council believed that he did not have the approval to carry out the works, the subject of the s 96 application and that it had not yet been approved. This is dealt with in paragraph 61 of Mr Guy’s affidavit (Exhibit 2) in which Mr Guy says, speaking of the s 96 modification application “It has not been approved yet, as a result you do not have consent, I direct you to stop” and Mr Bechara said words to the effect “I will not stop”.

24. Works did not stop until an undertaking was given to the Court on 20 July 2000 in the aforesaid civil enforcement proceedings brought by the Council.

25. It is in these circumstances that Prosecuting Counsel has submitted that whatever may have been the belief, even honestly held by the Defendants as a result of what was transacted at the Council’s on-site Committee meeting on 29 May 2000, at least from 23 June (that is less than a month later) it was abundantly clear to both Defendants, that the Council was contending that no approval had been granted (Mr Nicholas under cross-examination admitted that this conversation was passed on to him by Mr Bechara of the meeting with Mr Guy on 23 June).

26. The only explanation as to why works continued after 23 June until the undertaking was proffered to the Court in the civil enforcement proceeding on 20 July which was given by Mr Nicholas today under cross-examination was that he was acting with the benefit of legal advice and I assume Mr Bechara was likewise.

27. The content of that legal advice was not given but it is to be noted that when the civil enforcement case was before me in July 2000 the original position adopted by the Defendants (then Respondents to those proceedings) was that the requisite s 96 modification approval had been granted at the on site meeting 29 May, a position that was expressly abandoned later in the civil enforcement case after the affidavit of Councillor McCurrick the Chairperson of the Council Committee conducting on site meeting was filed in the case in which it was made clear that the on site Council Committee had only recommended that the application be approved.

28. I have traversed these matters in some detail because of Prosecuting Counsel’s submission that there is an element of serious culpability on the part of the Defendants in the manner in which they proceeded to carry out the development notwithstanding instructions from the Council to cease and numerous protests and complaints from the residents.

29. However, the evidence does not establish to my satisfaction beyond reasonable doubt that the Defendants were deliberately flouting the Council’s authority in what they did post 29 May 2000. In saying that, I think they acted unwisely as experienced developers and builders, but I accept that they were acting on the basis of their belief of what was transacted at the on site meeting on 29 May and also with the comfort of some legal advice (the terms of which have not been disclosed or explored in these proceedings).

30. Nonetheless, it should be noted that not all of the works, the subject of the present charges, were carried out after the meeting of 29 May. Indeed three of the four offences were committed at a time before the 29 May meeting and obviously in the commission of those offences before 29 May 2000, neither Defendant can claim any benefit of what they believe to have been approved at the meeting of 29 May 2000 or the legal advice that they had received in that respect.

31. To that extent, I accept Prosecuting Counsel’s submission that the works undertaken prior to that time and especially the pouring of the roof slab without the provision for the pergola that occurred on 11 October 1999 appeared to have been a deliberate and wilful act to simply proceed in the manner that the Defendants chose to proceed by ignoring the terms of the approval and the approved plans. It is significant, as Prosecuting Counsel has pointed out, that less than a week before that offence was committed the Council Inspector had spoken with Mr Bechara and Mr Nicholas insisting that they must not carry out work, otherwise than in accordance with the approved plans, or if they wished to change anything in the approved plans that there was a procedure to be followed.

32. All in all, in terms of criminal culpability, I would regard the Defendants to have acted unwisely and somewhat foolishly in the circumstances, but I do not regard their behaviour as being in wilful defiance or contumelious defiance of Council authority.

33. Similarly, in relation to the neighbour protestations, again with the benefit of hindsight it is easy to say that Mr Bechara in particular would have been well advised to have adopted a far more placatory and accommodating attitude rather than engaging in a series of, what can only be described as, hostilities between himself (and his building staff) and the neighbours. One can readily appreciate the sense of inconvenience and frustration that Mr Bechara may have sensed by a vigilant group of residents living in the area watching for every deviation of the project and no doubt he was bothered by the constancy of their complaints, some of which went to matters of a trivial nature. Nonetheless, faced with a vigilant, vocal and eloquent group of neighbouring residents, again with the benefit of hindsight, he should not have engaged them in the provocative or antagonistic way be adopted.

34. My assessment of the level of criminal culpability is that it does fall short of the matters (ie its nature and degree) that have been urged upon me by Prosecuting Counsel. It goes without saying that the Court accepts Prosecuting Counsel’s submission (and no rebuttal of the submission was forthcoming understandably on behalf of the Defendants) that the planning laws and the building laws of the State apply to the whole of society in respect of all developments, small and large, and there are no exceptions (other that those which the Act and the processes of the Act sanction).

35. Here, it is clear that we have a case where development consent was required and was obtained. Equally clearly there were deviations from the approved plans a matter that I would have thought happens frequently in the carrying out of approved developments. That does not mean that they happen frequently with legal impunity, but it does recognise that there is a procedure which the EP&A Act provides for the obtaining approval of deviations from approved plans. However, the emphasis of the Act is to get the process right up front and not merely at the end of the day. Nonetheless in the present case, as I have said, the fact that the Council has ex post facto approved the unauthorised works inevitably casts some light upon the proper evaluation of the objective seriousness of the offence.

36. Having evaluated the element of criminal culpability I think it must be concluded that the offences in the present case, objectively considered in the circumstances of their commission, are relatively insignificant offences.

37. In the overall scale or spectrum of offences provided by the EP&A Act, s 125 although it is true, upon legal analysis that the works were carried out in breach of s 76A of the Act, another apt way of analysing the offences is that works were carried in deviation from the approved development plans and plans in the construction certificate.

38. That alternative analysis of the true nature of the offences does not mean that they are insignificant, but it means that what was done was a departure in certain particulars from the approved plans and I have already commented on the nature of those departures. I should note that the civil enforcement proceedings involved a multitude of other departures from the approved plans and I simply note that those multitudes of matters have not all been the subject of these criminal proceedings, which have been confined to the four specific matters that I have earlier particularised.

39. The question of the relationship between the builder Dasco and the owner/builder Mr Bechara, is such that on the evidence, it is clear that Mr Bechara as the owner (perhaps “quasi builder”) was intimately involved in the building project and perhaps one might say as the owner of the land and the house being developed, he adopted a totally “hands on” approach and was fully engaged in the process. Many of the incidents involving the protesting neighbours and the Defendants involved Mr Bechara personally.

40. In this particular case the offences which are the same as charged against both Mr Bechara and Dasco are such that neither Defendant should be regarded as being guilty of any lesser offence. Mr Bechara was not the absentee owner, leaving things to the builder and the builder did not blaze away according to his own dictates, but was working in close collaboration with the owner, Mr Bechara.

41. In all of the circumstances I accept Defence Counsel’s submission that in sentencing, it is appropriate to apply the totality principle, and these offences though separately charged and involving separate aspects of the overall approved dwelling-house development project must be regarded in terms of overall gravity and sentence for each Defendant as related offences and the sentence to be imposed in respect of each offence should recognise the overall totality of the gravity of the offences and as being very much interrelated offences.

42. There are mitigating circumstances, the most relevant one I think here being the fact that each Defendant, at a very early stage in the proceedings (perhaps at the earliest opportunity) entered a plea of guilty to each of the charges and that is a significant mitigating factor in the case. Also I accept the remorse and contrition expressed by each of the Defendants and I am confident that they will not repeat the offences, having been engaged in significant civil enforcement proceedings in 2000 which were only ultimately concluded in January this year and now faced with these criminal charges, one would reasonably think that they will be personally deterred by the enforcement action (both civil and criminal) brought against them by the Council.

43. There is, as Mr Leggett on behalf of the Defendant Dasco rightly conceded, a secondary element of deterrence involved in sentencing for these offences—namely the educational role of the criminal law and sentencing in the criminal law, to ensure that other persons engaged in the development industry (or persons, home owners carrying out home extensions) observe the planning and building laws of the State when carrying out developments.

44. As this case has demonstrated, somewhat painfully and in a protracted sense, had the Defendants, as one would have expected of them as experienced developers, sought the modifications in advance of doing the work they would probably have obtained those approvals and would not have faced the consequences of carrying out unlawful work and being found to be guilty both civilly and criminally of breaches of the Act and the lesson to be learned by them and by the society generally is that where the Act provides procedures for the obtaining of approval for variations to approve plans, the requisite approval should be obtained in advance of doing the work.

45. In all of the circumstances, I am satisfied that there should be a conviction registered in respect of each offence charged against each of the Defendants. This is not the first offence that Mr Bechara has been guilty of in terms of the building and development laws of the State and Mr Woodham’s affidavit, Exhibit 7, indicates that he has been prosecuted in the Local Court for certain offences under the Local Government Act 1993 and/or the EP&A Act.

46. In the circumstances, where the Act provides a maximum penalty of 10,000 penalty units, ($1.1 million) I am of the opinion that having regard to the totality principle, the four offences in the case of each Defendant should yield a commensurate penalty which can be simply divided by four. There should also be a reduction of penalty reflecting the mitigating circumstances, in this particular case the earliest plea of guilty. I am of the opinion that each Defendant for the four offences should receive an overall penalty of $20,000. This means that each offence should carry a penalty of $5000.

47. Accordingly, Mr Lancaster has there been any discussion about costs?
LANCASTER: No there hasn’t your Honour, we do seek costs.

HIS HONOUR: You haven’t prepared a bill or an estimate of the costs?

LANCASTER: We don’t have an estimate your Honour.

HIS HONOUR: Mr Legatt there’s nothing that can be said about an order for costs in the usual fashion?

LEGATT: No, nothing can be said.

48. In the circumstances, I make the following orders against each of the Defendants.

1. Each Defendant is convicted of each of the four offences charged.

2. A penalty of $5000 is imposed in respect of each conviction.

3. Each Defendant shall pay the costs of the prosecution in the sum agreed or failing agreement, as assessed, conformably to the Land and Environment Court Act 1979, s 52.

4. The exhibits to remain with Court papers.