Fairfield City Council v Hanna, Samir

LEGISLATION CITED: Environmental Planning and Assessment Act 1979 Crimes (Sentencing Procedure) Act 1999

CASES CITED: R v Thomson (2000) 49 NSWLR 383

APPLICANT J Thompson, solicitor SOLICITOR LEGAL REPRESENTATIVES: Ritchie & Castellan RESPONDENT I Lloyd QC SOLICITOR Hannaford Lawyers

THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

A. The charges 1 The defendant, Mr Samir Hanna, has pleaded guilty to two offences against the Environmental Planning and Assessment Act 1979 (the EPA Act) as follows: (1) The defendant erected a building without first obtaining a construction certificate in breach of s 81A(2) of the EPA Act. (2) The defendant erected a building not in accordance with a development consent in breach of s 76A of the EPA Act.

2 The building is a dwelling intended to be the defendant's family home at 1 Kalang Road, Edensor Park, being lot 148 in deposited plan 260963 (the property). The offence under s 81A(2) carries a maximum penalty of $33,000. The offence by reason of breach of s 76A carries a maximum penalty of $1.1 million (s 126(1)).

B. The facts 3 Most of the facts were recorded in an agreed statement. The defendant owns the property as joint tenant. The property is in a highly visible location on Edensor Road, which is the connecting thoroughfare between Cowpasture Road and Smithfield Road, Edensor Park.

4 The defendant lodged a development application seeking approval to erect a double storey brick home and swimming pool on 17 May 2004. The Council granted development consent on a review application accompanied by amended plans on 28 September 2004. The development consent related to certain approved plans. The defendant, thereafter, caused to be erected a partly completed three storey double brick dwelling not in accordance with the approved plans and absent a construction certificate. The partly completed dwelling does not comply with the approved plans as follows: · The area titled lower ground floor nominated as a sub-floor area now contains nine rooms. Three of these rooms include sewer line connections and many of the rooms include electrical conduits. · Internal concrete stairs have been installed, providing internal access from the rooms constructed in the sub-floor area to the hallway near the meals area on the ground floor. · The house now presents as a three-storey dwelling. · The concreted floors in the rooms constructed in the lower ground floor are not level and do not achieve a consistent floor to ceiling height. In most areas the floor to ceiling height is an average slightly above 2.1m, with the room adjoining the garage having a floor to ceiling height of 2.5m. · Three rooms in the lower ground floor area contain plumbing connected to the sewer system. · A balcony has been constructed on the ground floor instead of a roof above the garage. · A balcony has been constructed above the ground floor family room adjacent to bedroom 1 on the first floor instead of a roof. · The family room on the ground floor has been extended out onto the balcony. · There is a minor alteration to the internal wall between the first floor bathroom and bedroom 1 and bedroom 1 en-suite.

· The area on the first floor previously nominated as bedroom 2 has not had the dividing wall between the hall and bedroom 2 erected.

· There is a minor variation on the first floor in the internal wall between bedroom 1 and the en-suite and walk-in robe. · The concrete pergola on the lower ground floor has been extended out to be level with the eastern wall of the main building.

· The levels of the building vary from the approved plans as follows: Approved Actual Variation Garage/Lower ground floor RL98.80 RL98.81 Complies Ground floor RL100.36 RL101.67 +1.3m First floor RL103.30 RL104.825 +1.525m Parapet/Roof RL106.00 RL108.03 +2.03m

· The construction of nine additional rooms in the lower ground floor has increased the floor area of the dwelling by 221.95m2.

· The construction of these rooms has been achieved by raising the height of the ground floor slab by 1.3m above that approved.

· The family room on the ground floor, which has been extended out onto the rear balcony, has increased the floor area by an additional 4.95m2.

· Based on the total calculated floor area of 614.95m2, the subject building has been constructed with an FSR of 0.73:1, which exceeds the permitted residential FSR of 0.5:1 by 46%. · The skylight above the stair void has been omitted.

5 The breaches have had the following consequences according to the agreed facts: · The bulk and scale of the building has increased because of the unauthorised building work and additional FSR.

· The area above the garage has been constructed as a balcony instead of roof area, and permits occupants to overlook private open space of adjoining premises.

· Given the increase in height of the ground floor, the ground floor balcony is now of a height above natural ground level that would not be approved.

· The first floor balcony with access only through the en-suite of bedroom 1 is now 1.53m higher than approved, significantly larger than approved, and now wraps around the subject building so that it is inappropriately close to the eastern boundary and will affect the amenity of adjoining premises.

6 No construction certificate has been issued with respect to the incomplete dwelling and the swimming pool.

7 The defendant provided a statement and gave evidence. The defendant's statement recorded that he was born in Iraq in 1962. His parents were Chaldean and he moved to Greece when he was 15. He migrated to Australia in 1980 and has been employed since arrival, first in a factory and then as a cook. He has been running his own café business since 1986. He married in 1988 and has four children. By 1999, he owned two investment properties. As his family increased in size, he sold his home and bought the subject property in Edensor Park, which had a house on it. He demolished the old house intending to build a larger new family home. In the interim, his family rented premises in Fairfield Heights. He has been paying $300 per week rent since 2003, as well as the repayments on the subject property of $3900 per month and the rent on his business premises of $6000 per month. As the times for business were more difficult he had to sell one of the investment properties. His residential loan account shows a repayment of just over $39,000, being the equity in that investment property. The defendant undertook an owner builder licence course and believed he had paid for a development consent that included the construction certificate. He assumed he could start building once he had the consent. He described this as an honest mistake. The defendant believed that, if punished, he would have to sell his other investment property and business. The problems with the house had cost a lot of money and caused arguments with his wife and a lot of misery for his family.

8 In his evidence in chief, the defendant identified a receipt for a construction certificate from the Council. He explained that he had not done the building work himself, but had hired a builder. The builder had made suggestions as the work was carried out. The builder had suggested that they raise the basement. The defendant asked the builder about the possible consequences. The builder told him that maybe he would get a fine of $1000 or $1500 and not be able to get a final inspection certificate. The defendant thought that was OK and told the builder to proceed. The defendant knew that these works were not in accordance with his consent. As the building was going up, other changes were made, involving the same process. Now the defendant regretted his actions. He was a cook, not a builder. He only got involved because it was his own house. He would stick to cooking from now on. He had lodged a new development application after getting legal advice, the effect of which (if approved) would be to block access to the basement level and make other changes to bring the building into compliance with the consent, insofar as practicable. The house was still not occupied. Had the defendant not breached the consent his family could have moved in by now. His neighbours did not object to the building. One neighbour provided a letter to this effect, which was tendered. The other told the defendant they had no objection and wanted the house finished. The defendant believed that, in total, the delay had cost him about $120,000, calculated from the time he stopped building to date.

9 The defendant was cross-examined. He was asked about various references he had obtained. He said he had informed the people who gave references that commencing work without the construction certificate was unintentional. He had told one person that he had built the basement up a little bit, but had not said he had intentionally flouted the law. He thought he had a construction certificate, but accepted that the receipt related to an earlier refused development application for a three storey dwelling. He thought he had paid the same amount with respect to the relevant development consent. He agreed that he had been successful in managing his business, knew that he needed consent, knew that his application for a three storey dwelling had been refused, and knew that his approved dwelling showed the basement area as non-habitable. The defendant acknowledged that he took a calculated risk based on the builder's advice of a $1500 fine. He knew he was breaking the law, but did not think such a fine mattered. The owner builder licence course was three to four hours long. The defendant did not recall learning about construction certificates and had done the course with a view to saving money on the building of his own home. His wife knew about the unauthorised works. The stress was caused by living in small rented accommodation, the delay in finishing the house and the associated costs. His café business was just keeping their head above water at present, but it was likely they would have to sell the other investment property.

10 The references tendered by the defendant characterised the defendant as a hard working, honest and trustworthy man. They referred to the prosecution for unauthorised building work. Two of the references identify the likely cause of the problems as an unintentional error or misunderstanding.

11 It is clear from the approved plans and various photographs that it would not be possible to rectify the breaches of the approved levels without demolishing the whole of the mostly complete dwelling. The Council confirmed its position that it did not seek demolition of the dwelling.

12 The defendant had undertaken the owner builder licence course and ought to have known that the building work could not commence absent a construction certificate. He should have satisfied himself that he had all necessary approvals, rather than merely proceeding in apparent ignorance of basic requirements of the system of development control in New South Wales. The defendant's conduct in causing the builder to construct a dwelling in breach of the approved plans was done in knowing breach of the law. I am satisfied beyond reasonable doubt that, by his conduct, the defendant deliberately sought to obtain an advantage in terms of useable floor area, when he knew he was not entitled to that advantage and knew that the building work would be illegal. The defendant proceeded despite this knowledge because he mistakenly thought that the worst that could happen to him was a fine of about $1500 and the defendant was willing to take that risk. The references do not appear to have been written with a complete understanding of the nature or extent of the defendant's true culpability.

13 I accept that the defendant and his family have suffered both financially and emotionally as a result of the delay in completing the house, which has resulted from the illegal building works. The totality of those additional costs may well be in the order of $120,000 as calculated by the defendant. I also accept that the defendant may continue to suffer financial hardship, as completion of the dwelling remains an unresolved issue. The defendant's fear of the need to sell his other investment property is not far fetched, but I do not accept that sale of the business is reasonably likely to be necessary by reason of the fines that should be imposed on the defendant. It is also not clear to me that I have full and complete evidence of the defendant's financial position, as I do not have evidence of the turnover, expenses and profit associated with the business (the information being limited to that described above). Accordingly, I do not place material weight on the issue of the defendant's means to pay, but do give weight to the financial impost he has already suffered and may continue to suffer.

14 Although the immediate neighbours do not object to the dwelling, the agreed facts disclose that the breaches are not without environmental impact. The roof of the dwelling is some 2m higher than that approved by the Council. The photographs show that the dwelling is of substantially greater bulk and scale than its neighbours. Overall, however, I consider the environmental harm to be at the lower end of the scale.

C. Conclusions 15 The defendant's knowing breach of the development consent is a serious offence. The scheme for regulation of buildings depends on responsible conduct by those carrying out development. The defendant's deliberate decisions to breach the development consent tend to undermine that scheme. The unauthorised building works by-passed the ordinary notification and assessment requirements to which other developments in the local government area would be subject. The unauthorised works, in contrast to the failure to obtain a construction certificate, were not the product of any misunderstanding, inexperience, accident, or some unforeseen change in circumstances. The fines must reflect these facts and my assessment of the overall environmental harm referred to above.

16 Having regard to the matters referred to in the Crimes (Sentencing Procedure) Act 1999 (ss 3A, 21A and 22), the fines should be sufficient to deter other people in a similar position to the defendant, without imposing a disproportionate penalty for the present offences. The fines should recognise that the defendant has no prior convictions and is unlikely to re-offend. Further, the defendant is otherwise of good character. He has already suffered a significant financial burden as a result of his foolish and reprehensible conduct. He frankly admitted his fault by entering the guilty pleas and in the giving of his evidence. The defendant is subject to some continuing uncertainty about the completion of his house and the time when he may be able to occupy it with his family. He has tried to make reparation for his conduct by lodging the new development application. The defendant also agreed to pay the Council's costs of the proceedings in the amount of $15,000. In all of these circumstances, I accept the defendant's evidence that he is sorry for what he has done and, of course, for the adverse consequences he has already suffered.

17 The maximum penalties reflect the seriousness of offences against the EPA Act. The maximum penalty of $1.1 million for breaches of s 76A is consistent with the vast range of possible offences that section covers.

18 I have had regard to these circumstances and the range of penalties in other matters referred to by the parties. I consider that the offences of carrying out development other than in accordance with the development consent in breach of s 76A of the EPA Act and of commencing the erection of the building without a construction certificate in breach of s 81A(2) should result in penalties of $27,000 and $3000 respectively, including a 25% discount on account of the utilitarian value of the guilty pleas (R v Thomson (2000) 49 NSWLR 383 at [151] - [161]).

19 The defendant's offences arose from the same set of factual circumstances. Accordingly, I accept that it is necessary to ensure that the total penalty appropriately reflects the defendant's conduct assessed in context. I am satisfied that a total penalty of $28,000 should be imposed ($26,000 for the offence against s 76A and $2000 for the offence against s 81A(2)).

20 Accordingly, I make the following orders in both proceedings: (1) The defendant is convicted of the offence charged in each of proceedings 50004 of 2007 and 50005 of 2007. (2) The defendant is ordered to pay a total penalty of $28,000. (3) The defendant is ordered to pay the prosecutor's costs agreed in the amount of $15,000. (4) The exhibits may be returned.

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