It follows that unless the building controller had issued a notice
specifying building work on or before 15 July, that is, within
7 days of
issue, the first Stop Work notice issued on 8 July would cease to be in force.
There is no evidence that within that 7
day period the controller did issue a
notice specifying building work, so that if any offence is alleged it must be
proved to have
taken place on or before 15 July 1985. But the only evidence
produced by the informant of any activity within that period is the
photograph
taken on 9 July, and this does no more than illustrate that mesh had been
placed over the damp proof membrane, and it
is not disputed by the informant
that permission was given by Mr Steer, as the officer of the informant, to do
this.
47. See page
3 of the transcript where Miss McDonald appearing for the
Building Board says, referring to the inspection which Mr Steer had on
8
July:
The builders on the site requested permission to place mesh over the damp
proof membrane to prevent it from being blown away
and this permission was
given buy Mr Steer. Mr Steer then prepared a stop work notice which the
builders on the site refused to
accept. Accordingly Mr Steer attended at Unit
1, 572 Pearce Street, Katherine and delivered the notice to a secretary.
48. Quite
apart from the fact that Mr Steer gave permission to place the mesh
over the damp proof membrane, there is, of course, no evidence
that the mesh
was not placed there immediately after Mr Steer had left and before he served
the notice.
49. It is, therefore, quite
plain that no offence or no failure to comply
with the first Stop Work notice can be shown to have occurred during its
existence,
which would have been between 8 July and 15 July 1985.
50. Inevitably, therefore, if the attention of the learned stipendiary
magistrate
had been drawn to these matters the first complaint must have been
dismissed on the evidence before the court. It is of no assistance
to the
informant to rely upon the photo taken on 17 July, which may well show that
work was then being undertaken, but that occurred
after the expiration of the
7 day period of the first Stop Work notice. There is no evidence of a Stop
Work notice extending to
17 July and the photo would be inadmissible and
irrelevant.
51. The second complaint alleges that the appellant failed to comply
with the
Stop Work notice dated 12 August 1985. Once again there is evidence that Mr
Steer attended Lot 1139 and saw work apparently
in progress relating to the
flats. Mr Steer took 7 photographs, and issued a Stop Work notice on that
day, but obviously after he
had taken the photographs. This Stop Work notice
contained apart from the formal wording, the following three sentences
inserted
into the body of the Notice:-
"You are advised that the Stop Work Notice issued on 8
July is still in force for this allotment.
Footings for
dwellings, units in progress this date, or in other
building work, has not been approved. In compliance with
the Building Act clauses (sic) 27 and 28, failure to
comply with this Notice may render you liable for
prosecution under the Act."
52. The
first sentence is incorrect. The second sentence is a piece of
information which does not in its terms carry a prohibition, and
the third
sentence is merely a wording that failure to comply with the notice may render
the appellant liable for prosecution. These
insertions do not give the Notice
any further force than it otherwise had.
53. But I consider that the respondent is entitled to
rely upon the plain
words earlier in the notice, which first set out that work is in progress on
the building which is not in accordance
with the Building Act or Building
Code, and then states, "in accordance with the provisions of section 30(1) you
are required to stop all building work."
That notice, therefore, operates as a
plain prohibition and pursuant to section 30(3)(b) it operated until 19 August
1985.
54. On
19 August 1985, Mr Steer visited the site and found building work in
progress, and took photographs to establish that. In my view,
and in the
absence of any defence raised by the appellant, those photographs and Mr
Steer's evidence establishes a failure to comply
with the Stop Work Notice
dated 12 August 1985. The expression "on the expiration of 7 days after it
was issued" means that the
Stop Work Notice would have remained in force until
midnight of 19 August 1985. This, however, makes irrelevant the photographs
exhibited as taken on 23 August and 1 October, because that was outside the
Stop Work period.
55. It would appear, therefore, that
an offence was committed in relation to
the second complaint. But Mr Reeves disputes this. He draws attention to the
fact that
on 18 August 1985 an application for building approval was lodged by
the appellant relating to the flats. A second application seeking
building
approval for the work to be done on the Tavern Steakhouse was lodged on 12
September 1985. Approval in relation to the
flats was given on 1 October
1985, and in relation to the wine bar/steakhouse was given on 20 October 1985.
56. Mr Reeves draws
attention to section 30(4), the terms of which are as
follows:-
"(4) Where, when a Stop Work Notice is given on the
ground
specified in subsection 1(a) -
(a) an application is made under this Act for
building approval in relation to the work within
7 days
after the giving of the notice; and
(b) having regard to all the circumstances and the
building work so far carried
out, the building controller
grants building approval,
the Stop Work Notice shall be deemed to have been
revoked."
57.
His submission is that once the existence of sub-paragraphs (a) and (b)
of subsection (4) are established, the Stop Work Notice shall
be deemed to
have been revoked retrospectively. It is correct that the events required in
sub-paragraphs (a) and (b) have now occurred.
The application for building
approval, so far as the flats are concerned, was made on 18 August; approval
was granted on 1 October.
But I cannot agree with Mr Reeves that once those
two events had occurred, the expression in subsection (4), that "the Stop Work
Notice shall be deemed to have been revoked", means that it is revoked
retrospectively and for all purposes.
58. The terminology
of section 30(3) is, in my view, against this submission.
That provides that a stop work notice ceases to be in force:
"(e) where
it is deemed to have been revoked under
subsection (4)."
59. In my view, it is plain that the combination of subsections (3)
and (4)
indicates that the "deeming" commences only after the happening of the two
events set out in sub-paragraphs (a) and (b) of
subsection (4), and until then
the Stop Work Notice remains in full force and effect.
60. This, in my view, also accords with common
sense because otherwise a
builder who had committed a series of offences consisting of failing to comply
with various Stop Work notices,
but who eventually obtained approval, might
move to quash any convictions obtained because of his failure to comply with
the notices,
on the basis that any such notice had become void and of no
effect upon approval being given. I do not consider that this was the
purpose
of the legislation. It's purpose is to control and direct the proper manner
and erection of buildings, to ensure compliance
with and if necessary punish
breaches of those controls and directions but to allow construction to
continue once breaches had been
corrected and construction proceeded in an
approved form.
61. For that purpose, the Stop Work notices are a useful device for
correcting
errors at any early stage, and giving the builder the opportunity
to do so without penalty if he conforms with the notice.
62. In
my view, in this case the first complaint has not been made out, and
could not have been made out on the evidence before the learned
stipendiary
magistrate. The second complaint is amply proved here and in the court below.
63. I return, therefore, to consider
whether the amendment sought by Mr
Reeves should be allowed in the circumstances now revealed. I believe the
amendment should be
allowed; firstly because a miscarriage of justice has been
demonstrated to have occurred in so far as the appellant has been convicted
of
one offence for which it should not have been convicted; secondly, because,
the appellant, upon having discovered the existence
of this defence gave
verbal notice and then written notice to the respondent within a time which,
in all the circumstances of this
case, I consider reasonable. Finally, I see
no prejudice arising to the respondent by allowing the amendment. I therefore
give
leave to amend the Notice of Appeal in the terms sought by Mr Reeves
which are: "That on the facts disclosed, the learned stipendiary
magistrate
should not have proceeded to enter a conviction in respect of either of the
complaints."
64. On the Notice of Appeal,
as amended, I find that there was no evidence
upon which the learned stipendiary magistrate could have found that an offence
had
been committed in relation to the first complaint, and the conviction in
relation to that first complaint is quashed. On the second
complaint, I am
satisfied that there was evidence upon which the learned stipendiary
magistrate could convict, and indeed should
have convicted, and I dismiss the
appeal against conviction in relation to the second complaint.
65. That brings me to the question
of penalty. I entirely agree with the
observations of the learned stipendiary magistrate that the Building Board has
a function
to perform, and it is a necessary function. It is a matter of
importance for the whole of the community that buildings are constructed
in a
proper manner, and the appellant's failure to comply with the second stop work
notice was quite blatant.
66. However I am prepared
to accept that the statement made by Mr Riley to
the affect that he (speaking for the appellant) would rather pay the fines
than
submit to the delay, was made in the heat of the moment, and Mr Steer
very fairly agreed that it could have been an excitable comment.
The evidence
is also that Mr Riley has since employed an engineer who has satisfactorily
co-operated with Mr Steer.
67. There is
no suggestion of any earlier convictions of this nature, and the
appellant has been described as the major builder in the area, with
a large
workforce, and acting under great pressure.
68. Mr Reeves has filed an affidavit of a Mr Cole, solicitor, of Katherine,
which contains what might be called a tariff of the amounts of fines in
relation to offences of failing to comply with a notice for
requirements under
the Building Act.
69. This tariff sets out 12 convictions between April 1985 and May 1986 with
fines ranging between $50 and $300. I note, however,
that in each case there
are private individuals involved. The appellant must by the very extent and
importance of its operations,
be in a very different position from private
individuals, and failure by the appellant to obey directions of the Building
Board would
have more serious consequences because of the extent of its
operations than the individual cases set out.
70. Furthermore, as a
company charged with much of the future development of
an important and growing urban area in the Northern Territory, it carries
a
special responsibility to the community and should not be seen as blatantly
disobeying provisions designed for the good of the
community.
71. If it has any proper complaints in relation to over officious
bureaucratic interference (and I stress on the material
before me and before
the learned stipendiary magistrate there is no evidence of this in this case)
it has proper channels for complaint.
72. Bearing in mind however, that this was a first offence, and in the hope
and understanding that the appellant has now properly
corrected its
procedures, I am prepared to reduce the fine to $1000. In doing so, however,
I am in no way critical of the remarks
of the learned stipendiary magistrate,
and I do so only on the basis that the appellant may feel that the court
places some trust
in its responsibility and usefulness to the community, and
with a reasonable expectation that this sort of offence will not occur
again.
73. The orders, therefore, will be: amendment allowed in the terms stated by
Mr Reeves; appeal against conviction on first
complaint allowed, and
conviction quashed; appeal against conviction on second complaint dismissed;
appeal against sentence on second
complaint allowed, and fine of $2000 reduced
to $1000.