Burwood Council v Pratelli

Judgment 1Mrs Pratelli was the holder of an owner/builder permit for the construction of a new two storey dwelling with attached double garage at 47 Stanley Street, Croydon Park. The dwelling was to be the new home for Mr and Mrs Pratelli. 2Burwood Council granted development consent dated 13 April 2010 for the dwelling subject to numerous conditions. Three are of relevance. 3Condition 1 required the development to be carried out in accordance with, amongst other documents, the plan submitted on 5 March 2010, except where amended by the conditions of consent. 4Planning condition 2 required: "The subfloor storage area being nominated as foundation space only and not being used for habitable, commercial or industrial purposes." 5Building condition 27 required the building works to be inspected during construction by the principal certifying authority, or an appropriate accredited certifier authorised by the principal certifying authority, at the stages identified in the conditions. 6Between 16 April 2010 and 13 April 2012, Mrs Pratelli carried out the development of construction of the dwelling. The Council contended that she did not do so in accordance with the three conditions of the development consent. The Council prosecuted Mrs Pratelli for committing the offence against s 125(1) of the Environmental Planning and Assessment Act 1979 ('EPA Act') of carrying out development otherwise then in accordance with the development consent. 7The particulars to the statement of charge identify the respects in which the Council contended Mrs Pratelli did not carry out development in accordance with the development consent. These were that, first, Mrs Pratelli did not carry out the development in accordance with the plans submitted on 5 March 2010 as amended (contrary to condition 1); second, Mrs Pratelli "has not used the sub floor storage area as foundation space only" (contrary to planning condition 2); and third, Mrs Pratelli did not request or obtain inspections at all of the stages identified in building condition 27 (contrary to building condition 27). 8Mrs Pratelli has pleaded guilty to the offence charged. This plea of guilty admits all of the elements of the offence against s 125(1) of the EPA Act but not the particulars of the charge. In particular, Mrs Pratelli identified that, while she admitted the facts particularised with respect to the breach of condition 1 and building condition 27, she did not admit the facts particularised with respect to planning condition 2. Hence, in relation to the alleged breach of planning condition 2, the Council bore the onus of proving beyond reasonable doubt that Mrs Pratelli did breach planning condition 2. 9The sentence hearing has been heard today. 10The Council read a number of affidavits. Mr Ezaz Biswas gave evidence that the land was subject to flooding in the one in 100 year flood event and that the basement or subfloor level as constructed is 8.83 metres, which is 1.37 metres lower than that flood level. 11Mr McClure took photographs on 27 March 2013 of parts of the dwelling which were constructed otherwise than in accordance with the plans, particularly of the subfloor area. 12Mr Silva gave evidence that the Council had been nominated as the principal certifying authority for the development by Mrs Pratelli, had been requested to undertake two critical stage inspections (being the first floor slab and the final inspection), but had not been requested to undertake five other critical stage inspections. 13Mr Silva also gave evidence of his inspections of the parts of the dwelling not constructed in accordance with the approved plans, notably the subfloor area. He described the non-complying work, marked the noncomplying work on a copy of the construction certificate plan of the subfloor area, and took photographs on his inspection on 9 May 2012. In summary, the noncomplying work included: