Hijazi v Canterbury City Council

CASES CITED: Hijazi v Canterbury City Council (No 1) [2007] NSWLEC 393; Port Stephens Council v SS and LM Johnston Pty Ltd; Port Stephens Council v Port Stephens Veterans and Citizens Aged Care Limited [2007] NSWLEC 30

APPLICANT Ghassan Hijazi (in person) SOLICITORS N/A LEGAL REPRESENTATIVES: RESPONDENT Mr D Jordan SOLICITORS Pike Pike & Fenwick

THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

1 This is an appeal against a conviction entered against the defendant, Mr Ghassan Hijazi, in the Local Court at Bankstown on 28 November 2006. The defendant was convicted of carrying out development without development consent on land at 160 Lakemba Street, Lakemba, between 2 February and 25 July 2006 in contravention of s 76A of the Environmental Planning and Assessment Act 1979 (the EPA Act). He was ordered to pay a fine of $15,000, professional costs of $6,600 and Court costs of $67.00.

2 The development particularised in the Court attendance notice was as follows: (a) An enclosure over the swimming pool filter and heating apparatus. (b) Deleted. (c) Tiled shower cubicles at the north-western corner end of the pool. (d) A roofed structure at the north-western corner of the pool area. (e) Further building works to a masonry structure in the south-western corner of pool area to create a sauna and shower area. (f) A structure over the spa filter and heater. (g) Deleted. (h) Completed construction of masonry and colour bond fences to approximately 2.1 metres in height to the western, eastern and southern boundary of the land. (i) Construction of reinforced concrete pavement.

3 Under s 31 of the Crimes (Appeal and Review) Act 2001 any person convicted by a Local Court of an environmental offence may appeal to the Land and Environment Court against the conviction. The appeal is to be by way of rehearing on the basis of certified transcripts of evidence given in the original Local Court proceedings (s 37(1)). Under s 37(2), fresh evidence may be given by leave which may be granted only if the Court is satisfied that it is in the interests of justice that the fresh evidence be given.

4 During the hearing of the appeal, the defendant sought leave to give fresh evidence. The foreshadowed evidence was evidence from the defendant that he did not consent to the Council officer, Mr Ross Jauncey, entering the property on 1 February 2006. This was intended to support a submission that the evidence was illegally obtained and ought not to have been admitted. I declined to grant leave (Hijazi v Canterbury City Council (No 1) [2007] NSWLEC 393).

B. Evidence before Local Court 5 Mr Jauncey, the Council's Manager of Environmental Compliance and Administration, provided a statement of evidence. In his statement, Mr Jauncey identified that the Council's records disclosed the defendant and another person as the owners of the property at 160 Lakemba Road, Lakemba. Further, the property was zoned Residential 2(a) under the "Belmore/Lakemba Local Environmental Plan No. 178". The Council had granted a complying development certificate for the construction of a swimming pool on 20 November 2003. Although other applications had been made, only the swimming pool had been granted approval. Mr Jauncey had inspected the property on 1 February 2006. He took a series of photographs of building works being carried out on the property at that time. Mr Jauncey spoke with the defendant during that inspection and advised him that the Council would be issuing a stop work order requiring him to cease all building works and would be instituting proceedings against him in the Local Court for carrying out building works without the Council's prior approval. The Council did so by Court attendance notice determined by the Local Court on 29 May 2006.

6 The Council received an undertaking signed by the defendant and the other owner of the property agreeing to cease all building work by 10 February 2006, although the date of execution of the undertaking is recorded as 16 February 2006. By the undertaking the defendant agreed to cease carrying out building work in contravention of the EPA Act and, amongst other things, to submit and obtain development consent prior to commencing any further contemplated work. Mr Jauncey attended the property again on 14 July 2006 and sought permission to enter for the purpose of an inspection. The defendant refused and Mr Jauncey left. Mr Jauncey then served notices on the owners under s 118C of the EPA Act requiring entry to the property on 25 July 2006. Section 118C provides as follows: (1) Before a person authorised to enter premises under this Division does so, the council or the person must give the owner or occupier of the premises written notice of the intention to enter the premises. (2) The notice must specify the day on which the person intends to enter the premises and must be given before that day. (3) This section does not require notice to be given: (a) if entry to the premises is made with the consent of the owner or occupier of the premises, or (b) if entry to the premises is required because of the existence or reasonable likelihood of a serious risk to health or safety, or (c) if entry is required urgently and the case is one in which the general manager of the council has authorised in writing (either generally or in the particular case) entry without notice.

7 The authority to enter premises under Div 1A of Pt 6 of the EPA Act is found in s 118A, supplemented by s 118B.

8 Mr Jauncey attended the property in accordance with the notices under s 118C on 25 July 2006. He had a conversation with the defendant, in part, as follows: JAUNCEY: "Is it OK for me to inspect the premises and take photos?"

HIJAZI: "I haven't done any work since we went to Court".

JAUNCEY: "Well in my opinion I believe you have and there is a fair amount of changes that have occurred since I was here in February when we issued you with a Stop Work Order and you gave us a signed undertaking to stop all works and submit a building certificate for the works carried out and a DA for the balance of works. When I have finished taking photos, I will show you the photos that I took in February".

JAUNCEY: "Are you responsible for the work that has been carried out either by doing the work yourself or engaging contractors to carry out the work?".

HIJAZI: "I have engaged contractors to do the work". 9 After he had taken a series of photographs of the property, Mr Jauncey had another conversation with the defendant, part of which was as follows: JAUNCEY: "These are photos that show the extent of the work that had been carried out here when I inspected the site on 1 February and were used in evidence at the Court hearing where you pleaded guilty. You have carried out further substantial works and you still do not have development consent for these works nor have you obtained a building certificate for the works that have been carried out".

HIJAZI: "I have been trying to get people to do the work so I can make the applications".

10 Mr Jauncey prepared a table comparing various parts of the property as at 1 February 2006 and 25 July 2006. Other photographs taken by a different officer on 5 July 2006 were not admitted into evidence. Mr Jauncey concluded that, based on his observations, the following building works had been carried out without development consent after his inspection on 1 February 2006 and before 25 July 2006: a An enclosure over the swimming pool filter and heating apparatus. b A disabled ramp leading to the swimming pool gate. c Tiled shower cubicles at the north-western corner end of the pool. d A roofed structure at the north-western corner of the pool area. e Further building works to a masonry structure in the south-western corner of pool area to create a sauna and shower area. f A structure over the spa filter and heater. g Paving of pool area surrounds. h Further construction of masonry and colour bond fences to approximately 2.1 metres in height to the western, eastern and southern boundary of the land. 11 Mr Jauncey was called to give evidence at the hearing in the Local Court. The defendant did not cross-examine Mr Jauncey.

12 The defendant's brother, Mr Ahmed Hijazi, gave evidence. Ahmed Hijazi worked on the property as a builder's labourer. He said that they had completed the fence, but were otherwise mostly "cleaning up" the property. He agreed that they had also put the colourbond on top of the roof after 2 February 2006, but he had not been there the whole time and did not have a clear idea about the time when works were done.

13 The defendant gave evidence. He said that Mr Jauncey inspected the property on 1 February 2006 for works that did not have development consent. Subsequently, Mr Jauncey left some paperwork (which I infer to be the undertakings), but the defendant did not receive that paperwork immediately as it was left under the door of the dwelling. The defendant was working on the outside and did not often go into the dwelling. During "that time" (which I infer to be from 2 February 2006 until the undertakings were signed on 10 or possibly 16 February 2006), the defendant said he "cleaned up" whatever he could. He constructed a couple of roofs over expensive equipment, such as the pool pump, and carried out some further work until he "took the undertaking to stop work". He pleaded guilty to the first Court attendance notice (heard in May 2006) and went back to the property in June 2006. They had a lot of complaints from neighbours and "fenced off a few fences" where neighbours had pets, tiled the showers and painted some concrete render to stop it falling off and did "some patch ups", but he did not think he had done any works that needed development consent. He agreed that the shower cubicles, as at 1 February 2006, were just wooden frames. As at 25 July 2006, the shower cubicles had been plaster boarded and tiled. He agreed that he had also enclosed three structures, including the shower and sauna areas. He described the works that he carried out between 1 and 16 February 2006 in the following evidence: Q. That was the date you say you received it. So, what works exactly do you say were carried out between the conversation with Mr Jauncy on 1 February and 16 February? A. The roof structure over the pool pump. The roof structure over the sauna, the roof structure over the front little outbuilding, that measured 2 metres by 3 metres. We completed a couple of columns, two columns I think of masonry and we did do a couple of just - no I think it was just a couple of columns, there was no extra columns.

Q. Columns for the fence? A. Yes, on the right side behind the property at 15 H(?) Street, my residence. There was possibly three columns, just to block off that area. What else did we do - we constructed the little wall, we didn't put a cover up over the pumps, the spa pumps, it was just a small wall, measuring under a metre high. What else? We completed the structure of the shower area inside the one that you saw the difference of, the tiling shower area.

Q. You didn't tile it? A. No we didn't tile it.

Q. So you admit the tiling was carried out-- A. Later.

Q. I think your brother said June or July? A. We just stopped after that undertaking, no one entered the premises. I think that's when all the troubles began with the neighbours.

Q. You haven't mentioned anything about the sauna and the shower next to it. Was that carried out after was it? A. We did put the roof on top of the sauna.

Q. But you didn't tile it? A. We didn't tile that area no.

Q. It is tiled now so it must have been carried out after the 16th? A. Yes I said that before, I said we tiled that after.

Q. What about the lining of the sauna? A. The lining was I think done after as well.

Q. Right? A. It wasn't a big job, it was a small job.

Q. In early June. So, there was nothing from the 16th until June? A. Yes.

Q. That is when you finished the sauna in terms of the tiling and the shower next to the sauna and the timber work inside the sauna? A. Yes, we didn't finish it, it was probably the materials that were there that were used basically.

Q. When was the work done? A. The sauna material had gone rotten as well.

Q. When was the work done? A. It was done at that time.

Q. When, in June? A. Yes in June, but the only reason why we did it was because it actually ruined the material and I had it lying outside, so I wanted to put it inside. So we did put it inside.

Q. So let me get this correct for the magistrate. You tiled the shower next to the sauna. You finished the internal timber lining of the sauna? A. With whatever material we had.

Q. You tiled those other shower cubicles? A. Yes.

Q. The extra fencing work was done? A. We blocked off the neighbours, yes.

Q. That was quite extensive? A. Not really.

Q. You did all this work we have just talked about after you sent the undertaking to the council. The undertaking you said to the council was that you would cease all building work. You didn't cease all building work, did you? A I don't think I need an undertaking?

Q. You signed an undertaking? A. I don't think I needed approval to do the clean up. I didn't think that I needed approval, I didn't think I had undertaken an major job there. I just thought I was cleaning it up.

Q. You weren't cleaning things up, you were tiling and you were finishing off a sauna and putting a fence up? A. No that was getting ruined, there was marble that was worth a lot of money just lying on the floor.

Q. How can marble get damaged? A. Marble, if a little bit of moisture gets to it, it changes colour.

Q. This marble was going in a shower recess? A. No, the shower recess doesn't have marble, it has tiles, white tiles.

Q. Where was the marble going? A. The marble was going just on the wall. The shower is in a corner, the marble was on a back wall, there was no water getting to that.

Q. The back wall right near the shower? A. Yes, so the water doesn't actually hit it.

Q. What about the colourbond. How would that get damaged? A. The colourbond for the neighbours. I wasn't thinking of getting it erected. We hadn't bought that material, we bought that material to close off the neighbour's fence.

Q. You see all these works were done, as I said, after you have undertaken in writing to the council to cease all building works? A. I did cease all building works. I honestly believe that I didn't go in to build any further works.

14 The defendant agreed that, on 1 February 2006, Mr Jauncey told him that he would be issuing a stop work order requiring all work on the property to cease. The defendant's evidence ended with this exchange: Q. I am talking about these matters here. It is the case, isn't it, that you wanted these works to be carried out, you knew you didn't have consent and you just carried out-- A. I got charged for that. That's what I believed I got charged for.

Q. You got charged for the matters as at 1 February? A. That's a point of argument and I wasn't clear in that regards and I've never been in this situation before, so I don't think that's fair.

Q. Are you aware that you do need consent from the council to carry out building? A. Yes I do.

Q. You are aware of that? A. Yes.

Q. Regardless of that you carried out these works anyway? A. No that's incorrect.

Q. That is inconsistent with what you said? A. No that's incorrect. I went back to clean up the property and if anyone had walked into the property they would have said to me this is ridiculous.

C. Discussion Contravention of s 76A of EPA Act 15 The appeal is by way of rehearing on the certified transcripts of evidence before the Local Court. Accordingly, I must be satisfied beyond reasonable doubt that the defendant contravened s 76A(1) of the EPA Act between 2 February and 25 July 2006 with respect to the property. Section 76A(1) provides as follows: 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.

16 Mr Jauncey's evidence establishes beyond reasonable doubt that the only approval granted by the Council authorising the carrying out of development on the property was the complying development certificate for the swimming pool granted in November 2003. The approved plans for that development show a pool and its surrounds (including filtration equipment), absent any other structure or building works. The evidence of Mr Jauncey and the defendant establishes beyond reasonable doubt that the defendant carried out development on the property by way of building works other than that approved by the complying development certificate. The photographs taken by Mr Jauncey on 1 February 2006 compared to those he took on 25 July 2006 disclose that building works continued after 1 February 2006. Specifically, the evidence of Mr Jauncey and the defendant proves beyond reasonable doubt that the defendant continued to carry out the following development between 2 February and 25 July 2006 as charged: - (i) enclosed the swimming pool filter and heating apparatus, (ii) tiled shower cubicles at the north-western corner of the pool area, (iii) constructed a roofed structure at the north-western corner of the pool area, (iv) carried out further building works to a masonry structure in the south-western corner of the pool area to create a sauna and shower area, (v) constructed a structure over the spa filter and heater, (vi) completed construction of masonry and colourbond fencing to approximately 2.1m in height to the western, eastern and southern boundary of the land, and (vii) constructed reinforced concrete pavement.

17 The remaining element of the offence against s 76A(1) is that the carrying out of this development required development consent. The "Belmore/Lakemba Local Environmental Plan No. 178" referred to by Mr Jauncey was not before the Local Court. However, I can take judicial notice of that instrument and its provisions under s 143(1)(d) and (2) of the Evidence Act 1995. The Canterbury Local Environmental Plan No 178 - Belmore-Lakemba Precinct was published in Gazette No 148 of 16 October 1998. Between 2 February 2006 and 25 July 2006, the LEP contained the following provisions of relevance: 7 Permissible development The Table in clause 10 lists development which may be allowed in each zone. All other development is prohibited.

8 When development consent is required (1) All development that may be allowed requires the consent of the Council, except development identified in the Table in clause 10 as not requiring the consent of the Council.

10 Development Table In the following Table: x means development that may be carried out without consent. o means development that may be carried out only with consent. absence of a symbol means development that is prohibited.

18 According to the table in cl 10, all permissible development in the Residential 2(a) zone requires development consent other than home occupations, exempt development and some other obviously irrelevant development purposes. Clause 5 defines terms used in the LEP, including "home occupation", in a manner that excludes building works. Clause 10A of the LEP relates to exempt and complying development. Insofar as relevant, it provides that: 10A What is exempt and complying development? (1) Development of minimal environmental impact listed in Schedule 1 to Development Control Plan No 31 - Exempt and Complying Development Code as adopted by the Council on 10 May 2001 is exempt development, despite any other provision of this plan.

19 Development Control Plan No 31 was not in evidence before the Local Court. I am not satisfied that I may take judicial notice of its provisions under s 143 of the Evidence Act 1995. Nevertheless, I am satisfied beyond reasonable doubt that the relevant work was development requiring development consent within the meaning of s 76A(1) of the EPA Act for the following reasons.

20 First, cl 10A of the LEP identifies exempt development as development of minimal environmental impact listed in the development control plan. In Port Stephens Council v SS and LM Johnston Pty Ltd; Port Stephens Council v Port Stephens Veterans and Citizens Aged Care Limited [2007] NSWLEC 30 I concluded that the same provision in another instrument made the requirement of "minimal environmental impact" a part of the criteria for exemption. I am satisfied beyond reasonable doubt that the development carried out by the defendant between 2 February 2006 and 25 July 2006 (as found above) was not of minimal environmental impact. In particular, none of the building works on the property other than the swimming pool, filtration system and pool surrounds had development consent. The building works the defendant continued to carry out after 1 February 2006, in the context of the size and suburban character of the property apparent from the evidence, were of more than minimal environmental impact. For the purpose of assessing environmental impact those building works must be considered as a continuation of the earlier building works. For example, the works to the shower cubicles cannot be considered in isolation from the shower cubicles themselves. Once this is recognised, it is apparent that the development carried out by the defendant between 2 February 2006 and 25 July 2006 cannot fall within the required description of minimal environmental impact. The defendant's descriptions of those works as involving "cleaning up" the property are inconsistent with much of his own evidence about the nature and extent of the works, none of which had development consent other than swimming pool, filtration system and pool surrounds.

21 Secondly, the defendant made admissions consistent with the building works requiring development consent. He did so in giving the undertakings on 16 February 2006 and in evidence as recorded in paragraph 14 above. As noted, the defendant's evidence that he was doing nothing more than "cleaning up" the property is untenable when considered in the context of the other available evidence (including his own description of the works he carried out between 2 February 2006 and 25 July 2006). These admissions were also consistent with the defendant's conduct. This conduct included the other development applications lodged on the defendant's behalf and refused by the Council.

22 Accordingly, I am satisfied beyond reasonable doubt that the development carried out by the defendant between 2 February and 25 July 2006 required development consent and that consent had not been obtained. I must now consider the defendant's arguments on the appeal. These arguments, subject to one matter, reflected the arguments put before the Local Court.

Defendant's arguments on appeal 23 The defendant's primary argument on the appeal was that the evidence obtained by Mr Jauncey on 1 February 2006 ought not to have been admitted because it had been obtained illegally. According to the defendant, it had been obtained illegally as Mr Jauncey had not served notice under s 118C of the EPA Act before entering the property. The defendant submitted that the Council's case was very weak absent the evidence collected on 1 February 2006. The defendant did not object to this evidence being admitted by the Local Court.

24 These arguments face a number of difficulties. It is clear from the transcript that the defendant was aware he could object to evidence obtained by entry onto the property without consent. The defendant objected to evidence from an entry on 5 July 2006 on precisely this basis and the evidence was not admitted (see pp 6, 7, 9 and 10 of the transcript). The defendant specifically refrained from any objection to the 1 February 2006 evidence. Moreover, the defendant did not cross-examine Mr Jauncey about the circumstances of his entry on 1 February 2006 or, in his own evidence, make any complaint about those circumstances. This is so despite the fact that the defendant had declined permission for Mr Jauncey to enter on 14 July 2006 (leading to the service of the s 118C notices) and thus, before the hearing, was aware of the relevant provisions of the EPA Act and their potential significance.

25 Further, there is evidence consistent with an inference that the defendant consented to Mr Jauncey entering the premises on 1 February 2006. The defendant said he had never declined permission for the Council to enter (transcript p 7 lines 40-41). The defendant, in the context of Mr Jauncey's photographs, said he had given him permission to enter (transcript p 9 lines 28 to 34). Mr Jauncey took photographs on two occasions - 1 February 2006 and 25 July 2006. On 25 July 2006, Mr Jauncey did not need the defendant's permission to enter as notice under s 118C had been served. Such notice is unnecessary if the owner consents to entry. The obvious inference is that the defendant consented to Mr Jauncey inspecting the property on 1 February 2006. The defendant submitted that this was not "informed consent" because Mr Jauncey insisted he had a right to enter. Even if that were so (and, given my refusal to grant the defendant leave, there is no such evidence), I do not consider that it would vitiate consent. At its highest, it seems to me that the defendant now regrets not having insisted on his right to require Mr Jauncey to give formal notice under s 118C of the EPA Act before entering the property on 1 February 2006. That is not the same as refusing consent to enter. The defendant's submissions about the alleged ambiguity surrounding his consent to Mr Jauncey entering the property on 1 February 2006 are without substance. Moreover, when the defendant did refuse permission to enter on 14 July 2006, Mr Jauncey simply served the s 118C notice and entered on 25 July 2006. In other words, one way or another, Mr Jauncey was entitled to gain access to the property. If access was not gained on 1 February 2006 absent notice under s 118C, then Mr Jauncey could readily have gained it thereafter irrespective of any objection by the defendant.

26 Moreover, even if the evidence of the inspection on 1 February 2006 had been illegally obtained (which I do not accept on the evidence) and was the subject of objection before the Local Court (which it was not), I am satisfied that the evidence should have been admitted having regard to the matters set out in s 138 of the Evidence Act 1995. Assuming that the defendant did not consent to the entry, the considerations in s 138(3) of the Evidence Act indicate satisfaction of the test in s 138(1). The probative value of the evidence was high and any (assumed) impropriety was minor in all the circumstances. There is no evidence that any (assumed) impropriety was deliberate or reckless (indeed, all the evidence points to the contrary). The desirability of admitting the evidence, in my view, clearly outweighed any undesirability of admitting the evidence obtained in that way (s 138(1)).

27 These considerations undermine the defendant's claims that he was unfairly prejudiced by the admission of the evidence. The fact that the evidence supported the conviction is not unfair prejudice. Nor does it support the defendant's allegations of the prosecution being biased.

28 For these reasons, the defendant's primary argument on the appeal should be rejected.

29 The defendant's secondary arguments were related. The defendant submitted that he had already been charged and convicted for unlawful building works in May 2006 and that he was being charged for the same offence twice. The common law doctrine of autrefois convict prevents a person from being tried for the same offence twice. It is clear, however, that the present charge relates to a different offence. The Court attendance notice for the May 2006 conviction was available to the Local Court. It identified five structures that the defendant had constructed absent development consent on 1 February 2006. The present Court attendance notice related to building works between 2 February and 25 July 2006. The fact that these building works were carried out on structures partly completed as at 1 February 2006 (the subject of the earlier conviction) does not mean that the defendant has been charged for the same offence twice. As found above, the evidence established beyond reasonable doubt that further building works were carried out after on and from 2 February 2006. Those works are the subject of the second charge and, in my view, properly so. Further, and contrary to the defendant's submissions, there was no ambiguity in the Council's evidence about the building works the defendant continued to carry out after 1 February 2006. The evidence was clear and compelling.

30 The defendant believed his treatment by the Council with respect to the works was unfair and unreasonable. In particular, the defendant appeared to believe that it was unfair to be charged for the building works he carried out between 2 February and 16 February 2006, being the last possible date on which he signed the undertaking to cease work. This is misconceived. There was no consent for any of the building works other than the complying development certificate for the pool (see s 76A(2)(b) of the EPA Act for the status of this certificate). The fact that the defendant did not undertake to cease work until 16 February 2006 was not a source of authority for the building work to continue. The building work carried out between 2 February 2006 and 16 February 2006 was in breach of the EPA Act, irrespective of the undertaking. The defendant appears to be labouring under the misapprehension that he could not or should not have been charged for the work that he managed to carry out before he signed the undertaking. This is not so. The source of the obligation that the defendant contravened between 2 February and 25 July 2006 was s 76A(1) of the EPA Act. Nothing the Council said or the defendant did with respect to the undertaking to stop work could alter that fact.

31 I see no unfairness in the Council having continued to enforce the planning laws against the defendant for the building work he carried out between 2 February and 25 July 2006 or otherwise.

D. Conclusions 32 I am satisfied beyond reasonable doubt that the Council proved the offence charged on properly admitted evidence. The defendant carried out development between 2 February and 25 July 2006 in contravention of s 76A(1) of the EPA Act, which was an offence under s 125(1) of that Act. I do not accept any of the defendant's arguments on appeal. Accordingly, the appeal is dismissed. ****************************

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