Leichhardt Council v Geitonia Pty Ltd

THE STATUTORY CONTEXT

1. Section 76A(1) of the EPA Act provides - 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.
2. "Development" is defined by s 4(1) to include: … (d) the carrying out of a work, and (e) the demolition of a building or work …
3. Section 125(1) provides: Where any matter or thing is by or under this Act, other than by or under the regulations, directed or forbidden to be done, or where the Minister, the Secretary, a council or any other person is authorised by or under this Act, other than by or under the regulations, to direct any matter or thing to be done, or to forbid any matter or thing to be done, and that matter or thing if so directed to be done remains undone, or if so forbidden to be done is done, a person offending against that direction or prohibition shall be guilty of an offence against this Act.

THE LAND

1. Geitonia became the registered proprietor of the land on 1 May 2008. The previous registered proprietor was Mansions Projects Pty Limited. The land is in the municipality of Leichhardt and is located on the northern side of Parramatta Road, between Nelson and Mathieson Streets, and has rear access from McCarthy Lane.
2. Prior to the demolition, there was located on the land a two to three storey late Victorian style building, as follows: 1. The building presented as two storeys to Parramatta Road, with a basement level below. 2. At ground level, the building was divided into seven shopfronts and would historically have had a residential use above. 3. The front elevation to Parramatta Road (the southern façade) was divided into seven bays with timber/aluminium and glazed shopfronts to the lower floor (generally altered), with a stepped timber cantilevered verandah overhanging the Parramatta Road footpath to the first floor, and a faceted brick parapet above with a decorative rendered cornice and central pediment. The parapet was partly stepped to the end units. The shop bays were uneven in width and subdivided into one unit of four (Nos 1, 3, 5 and 7) and a wider double unit with a central column (No 9) and two further units (Nos 11 and 13). Each section had a different shopfront detail at the lower floor and different access doors at the verandah level. The parapet detailing varied the width of the brick panelling, but acted as a unifying element in the overall width. There were stepped winged walls at both ends.
3. Photographs of the shopfronts, the front (southern) façade and the eastern and western walls of the building before it was demolished are contained in the Condition Survey prepared by CAM dated 8 July 2011.

THE LOCAL ENVIRONMENTAL PLAN

1. At all material times, the Leichhardt Local Environmental Plan 2000 (LEP) applied to the land. The land was located in the Business Zone. Development for the purposes of this development in the Business Zone was permissible under the LEP with the prior consent of Council.
2. The land was in the vicinity of heritage items. As such, development consent could not be granted for the development carried out in this case unless Council had made an assessment of the effect which the carrying out of that development would have on the heritage significance of the heritage items as well as on any significant views to and from the heritage items: cl 16(7) LEP. The land was also located in a conservation area under the LEP. As such, development consent could not be granted for the development carried out in this case unless Council had made an assessment of the extent to which the carrying out of that development would affect the heritage significance of the conservation area: cl 16(8) LEP.
3. The heritage objectives in cl 15 LEP included: (a) to protect, conserve and enhance the cultural heritage and the evidence of cultural heritage, including places, buildings, works, relics, townscapes, landscapes, trees, potential archaeological sites and conservation areas, and provide measures for their conservation, (b) to protect, conserve and enhance the character and identity of the suburbs, places and landscapes of Leichhardt, including the natural, scenic and cultural attributes of the Sydney Harbour foreshore and its creeks and waterways, surface rock, remnant bushland, ridgelines and skylines, (c) to prevent undesirable incremental change, including demolition, which reduces the heritage significance of places, conservation areas or heritage items, (d) to allow compatible and viable adaptation and re-use of the fabric of heritage significance. …

THE DEVELOPMENT CONSENT

1. A deferred commencement development consent was granted by Council on 6 December 2005 and became operational on 17 December 2007. It required retention of the majority of the southern façade.
2. Upon the grant of a deferred commencement development consent, the consent is effective but not operative until such time as the deferred commencement conditions have been complied with to the satisfaction of the consent authority: ss 80(3) and 83 EPA Act. The consent authority must notify the applicant whether or not it is satisfied as to any matter specified in a deferred commencement condition: cl 95(5) Environmental Planning and Assessment Regulation 2000 (EPA Regulation). If the applicant satisfies the consent authority as to any matter specified in a deferred commencement condition, the consent authority must give notice to the applicant of the date from which the consent operates: cl 100(4) EPA Regulation.
3. The deferred commencement matters are listed in conditions 1 to 3 of the 2005 consent. Condition 3 concludes by requiring amended plans certified by a qualified practising civil engineer to be submitted to Council prior to the consent becoming operational, and specifying that upon Council's written approval of satisfactory compliance with conditions 1 to 3 the consent would become operative.
4. On 18 December 2007, Council certified that conditions 1, 2 and 3 had been satisfied and that the consent was operational from 17 December 2007.
5. Conveniently, Council enclosed with its notification an annotated copy of the notice of determination for the information of the applicant, which incorporated three modifications to the 2005 consent granted by Council under s 96 of the EPA Act in 2006-2007, but was not itself a notice of determination.
6. A further s 96 modification was granted by Council on 20 October 2011, on the application of Geitonia per Mr Gertos. All the modifications are consistent with the development consent's requirement for retention of the majority of the southern façade.

THE CONSTRUCTION CERTIFICATE

1. Erection of a building in accordance with a development consent must not be commenced until a construction certificate has been issued: s 80(12) EPA Act. A construction certificate is a certificate to the effect that work completed in accordance with specified plans and specifications will comply with the requirements of the regulations referred to in s 81A(5): s 109C(1)(b) EPA Act. Section 81A(5) provides that the regulations may make provision concerning the issue of certificates for the erection of buildings (and subdivision of land). Division 2 of Part 8 EPA Regulation (cll 139-142) regulates construction certificates. A construction certificate may be issued by a consent authority, the council or an accredited certifier: s 109D(1)(c) EPA Act.
2. A construction certificate and any approved plans and specifications issued with respect to it are taken to form part of the development consent (other than for the purposes of s 96): s 80(12). A construction certificate issued by an accredited certifier is valid at least until set aside and, to the extent of any inconsistency, prevails over the plans and specifications approved as part of the development consent: Burwood Council v Ralan Burwood Pty Ltd (No 3) [2014] NSWCA 404 at [202] per Sackville AJA (McColl and Barrett JJA agreeing).
3. Condition 7 of the development consent requires two separate construction certificates to be lodged. The first is for demolition, excavation and remediation of the site. The second is for building works.
4. On 18 July 2011 an application for a construction certificate for the demolition, excavation and restoration of the site was lodged with Vic Lilli and Partners and signed by Mr Gertos on behalf of Geitonia. It described the development as: "To retain the façade and build 24 new residential units and 11 retail spaces over a basement carpark". The contact email was given as "foong@gbuild.net.au".
5. An accredited certifier at Vic Lilli and Partners, Mr Paul Ladogna, dealt with the construction certificate application. The initiating contact with Mr Ladogna for the construction certificate came from Ms Kegler, an in-house architect for Mr Gertos. Mr Ladogna had meetings with her about the requirements. Foong also provided information to Mr Ladogna and dealt with him as if he (Foong) were the project manager. Plans supplied to Mr Ladogna were drawn by CAM per Mr Cutuk.
6. On 15 September 2011 Foong sent Mr Ladogna revised structural drawings by Mr Cutuk for shoring, demolition and excavation: CSMP1 Revision B, CSMP2 Revision C, CSMP3 Revision C, CSMP4 Revision C and CSMP5 Revision C. Mr Ladogna told Foong he was not satisfied with the notations on the plans pertaining to the treatment on the southern façade because they did not align sufficiently with the notations on the 2005 consent architectural plans DA 5001 and DA 5002. Consequently, Mr Ladogna received from Foong CSMP3 Revision D with new notes 7 and 8 (which I set out later) addressing his concerns.
7. On 21 September 2011 Mr Ladogna issued a construction certificate for the demolition, excavation and restoration of the site. As required by cl 147(1)(e) EPA Regulation, he certified that work completed in accordance with the documentation contained in the annexures (with such modifications verified by him as may be shown on the documentation) will comply with the requirements of the EPA Regulation as referred to in s 81A(5) of the EPA Act. Annexure 1 to the construction certificate is described as containing plans and specification that form part of the construction certificate. Annexure 1 lists five drawings by CAM: CSMP1 Revision B dated 9 August 2011 - Construction Site Management Plan; CSMP2 Revision C dated 9 August 2011 - Construction Site Management Plan; CSMP3 Revision D dated 20 September 2011 - Basement Demolition Plan; CSMP4 Revision C dated 15 September 2011 - Basement Demolition and Excavation Plan; and CSMP5 Revision C dated 15 September 2011 - Basement Demolition and Excavation Plan. They are analysed below at [51].
8. Annexure 2 to the construction certificate is described as containing "supporting documentation". There are numerous supporting documents in Annexure 2, totalling some 200 pages. They are not described as forming form part of the construction certificate and generally do not constitute plans or specifications; therefore s 80(12) EPA Act does not require that they form part of the development consent: above at [28]. Among those documents is a Demolition, Management, Procedure and Sequence Plan of August 2010 by CAM, which states in relation to partial demolition of the existing structure (at p 7): Partial demolition of the existing structure The proposed development will require the demolition of the existing structure with the retention of the front and side Heritage facades. The existing building, as previously stated is independent of neighbouring properties and has no common walls that will be effected or require retention. The existing heritage items will require the current internal walls to remain as a brace for the construction of the new building. The internal existing structure will only be demolished once the side and front walls have been tied into the new structure. Of the rear portion of the existing structure that will be removed, the following demolition procedure will need to be adhered to. The excavation will require: * The roof and walls being removed manually with the use of small machinery * A series of small 4 to 6 tonne excavators being craned onto the existing slab to break the slab in sections * The removal of the stair core to allow for the waste to be dropped several levels ready for removal. * All walls demolished and brought down into the building * Manual removal of the portion of slabs and wall immediate adjacent to the heritage structure to avoid vibration and damage to this area * The proposed lift core in the Heritage portion to be retained to be excavated once the site has been retained and all piles and capping beams have been cast. Generally the demolition will be carried out by both hand and small excavating equipment. It is envisaged that saw cutting, propping and removal of portions of the slab and walls are the most effective in reducing noise and vibration.

Unsuccessful attempts to obtain approval of plans that did not provide for retention of southern façade

1. Remarkably, in July and September 2011, there were two unsuccessful attempts by Geitonia per Mr Gertos to obtain Council modification approval or construction certificate approval to plans that no longer provided for retention of the southern façade: 1. The first attempt was in the context of the 2011 modification application by Geitonia granted by Council on 20 October 2011. The contact person named in the application was Ms Kegler, an architect who worked for Mr Gertos. The modification was for changes that were irrelevant to retention of the southern façade. The plans in support of the modification application omitted annotations requiring retention of the majority of the southern façade that had appeared on the approved development consent plans. The Council assessment officer, Mr Betts, picked this up and requested Geitonia to add the annotations to the plans. Consequently, on or about 22 July 2011 amended plans were lodged that included annotations in the same or similar terms. 2. The second attempt was in the context of the construction certificate application, to which Mr Gertos had consented on behalf of the owner. On 21 September 2011 Mr Ladogna issued the construction certificate. Once again, plans lodged in support of the application omitted notations on the development consent approved plans requiring retention of the majority of the southern façade. Mr Ladogna requested that they be corrected, which was done (as can be seen in CAM's CSMP3 Revision D dated 20 September 2011 forming part of the construction certificate).

ISSUE 1: WHETHER THE DEVELOPMENT CONSENT PERMITTED THE DEMOLITION THAT OCCURRED OF THE SOUTHERN FACADE

1. The first of the three main issues as identified in the defendants' submissions, is whether, on the proper construction of the development consent including the construction certificate forming part of it, the consent permitted the demolition that occurred of the southern façade.
2. Geitonia and Gertos submit that the development consent did permit such demolition.
3. In my opinion, for the reasons that follow, it clearly did not.
4. The nature of a development consent was explained by Spigelman CJ in Winn v Director-General of National Parks and Wildlife [2001] NSWCA 17, 130 LGERA 508 at [4]: A public document, such as a development consent, constitutes a unilateral act on the part of the consent authority expressed in a formal manner, required and intended to operate in accordance with its own terms. It has, as Stein JA points out, an inherent quality that it will be used to the benefit of subsequent owners and occupiers. It is also a document intended to be relied upon by many persons dealing with the original grantee, or assignees of the grantee, in such contexts as the provision of security. In some respects it is equivalent to a document of title. It must be construed in accordance with its enduring functions.
5. In construing a development consent, the ordinary rules of construction and principles of interpretation apply as with any other statutory instrument: Baulkham Hills Shire Council v Ko-Veda Holiday Park Estate Ltd [2009] NSWCA 160, 167 LGERA 395 at [97]-[99] following King Gee Clothing Company Pty Ltd v Commonwealth [1945] HCA 23, 71 CLR 184 and Cann's Pty Ltd v Commonwealth [1946] HCA 5, 71 CLR 210. Development consents are to be construed not as documents drafted with legal expertise, but to achieve practical results: Ko-Veda at [96]-[99] and [105] applying Westfield Management Ltd v Perpetual Trustee Co Ltd [2006] NSWCA 245 at [36], [40]. See also Lismore City Council v Ihalainen (No 2) [2014] NSWLEC 198 at [57]-[58] (Biscoe J).
6. The development consent describes the approved development as follows: Retention of part of the existing building, including the majority of its front and side facades, and the stepped front veranda cantilevered over the Parramatta Road footpath, demolition, excavation and construction of a mixed commercial and residential development comprising 11 commercial units and 24 residential units in two separate buildings over a basement carpark accommodating 40 cars, and associated works, including landscaping and remediation of the site.
7. The defendants submit that the word "majority" in this description is to be construed qualitatively not quantitatively. I do not accept the submission. The ordinary meaning of the word is quantitative. If it be relevant, in cross-examination Mr Ladogna also gave it a quantitative interpretation. It means "the greater part or number": Macquarie Dictionary (3rd ed). That is reinforced by reading the development consent as a whole. A qualitative meaning is, to say the least, an elusive and ill-defined concept and highly unlikely to have been intended in a document meant to have practical effect. Even if the word were to be construed qualitatively, I do not accept that what was demolished satisfies that concept.
8. Condition 4 of the development consent provides that the development is to be implemented in accordance with the details set out in the table in condition 4 and any supporting information received with the development application except as amended by the conditions of approval. Accordingly, those documents are taken to form part of the development consent and can be taken into account in construing the development consent: Bardsley-Smith v Penrith City Council [2013] NSWCA 200, 195 LGERA 34 at [66]-[69]. The table in condition 4 lists many plans. The supporting information received with the development application included a statement of environmental effects, a report on geotechnical investigation and a concept plan. The plans, in particular architectural drawings DA5001 and DA5002 titled "Façade Details", and that supporting information confirm that the majority of the southern façade was to be retained.
9. The statement of environmental effects states: …The front building will be constructed within the shell of the existing row of Victorian shops…the design approach is to retain the front façade, side walls and some of the dividing walls between the shops...The traditional form of the front façade and shop fronts will be restored.
10. The geotechnical investigation report states: It is understood that the southern front wall and southern sections of both the eastern and western side walls will be maintained for the proposed development. In order to achieve this these walls will need to be underpinned and supported on the underlying rock.
11. The concept plan sets out the construction sequence, which included temporary support of the southern façade and, in section view, the process for retaining the front (southern) façade.
12. The two architectural plans titled "Façade Details" DA 5001 and DA 5002 listed in condition 4 draw a distinction between what may be removed and what must be retained. They indicate that the majority of the southern façade must be retained. Next to a drawing of the front (southern) façade appears the note "Resore front façade". Obviously, "resore" is a misspelling of "restore". There also appear the notes "Restore awning and balustrade" and "Restore shopfronts". These plans appear to indicate that ground floor columns fronting Parramatta Road between the shop bays do not have to be demolished. These plans show seven existing shop fronts on the ground floor of the southern façade and specify: 1. that one of the shop fronts is to be "removed"; 2. that three other shop fronts are to be "removed and reinstated"; 3. that the three remaining shop fronts are to "renovated and restored" - not removed; 4. details for the work to the six shop fronts referred to in (b) and (c) above.
13. Notes on those two plans under the heading "Façade and Side Supporting Walls Scope of Works" state: Brickwork to be cleaned and repaired with mortar joints restored. Any structural elements to be replaced. All stonework detail to be restored and/or duplicated…All structural members to be repaired or replaced…All ceilings to be repaired, restored as necessary using original or similar material…
14. Council's 18 December 2007 annotated copy of the notice of determination for the information of the applicant conveniently incorporated the 2006-2007 modifications of the development consent. This annotated copy lists at the end of condition 4 - under the words "(Condition C4-modified 23.5.07) and the following drawings for the deferred commencement as satisfied on 17.12.07" - (inter alia) architectural plans DA 3001 dated 19 October 2007 and DA2002 (Amendment 11) dated 14 December 2007. Each has a notation: "Restore and maintain front façade. Restore balcony and awning".
15. There is no ambiguity in the development consent's requirement for retention of the majority of the southern facade. If there were any ambiguity, it would be dispelled by the following advisory statement in the development consent: Should the front and side facades of the existing building and the stepped front verandah cantilevered over the Parramatta Road footpath that are nominated as being retained be demolished during the excavation and construction periods, the consent will be invalidated and a new Development Application will be required to be lodged with, and approved by Council.
16. I turn to the construction certificate for the demolition, excavation and remediation of the site issued on 21 September 2011: above at [33]. It incorporates in Annexure 1 five plans marked "CSMP" prepared by CAM (Mr Cutuk). They indicate that the majority of the southern façade is not to be demolished. As the prosecutor's engineering expert Mr Delprado said, they show a stabilisation concept involving the retention of internal cross walls connected to the front façade and the stabilisation of those walls by tying the existing roof and floor beams to them using new steel brackets. They may be analysed further as follows. 1. CSMP1 Revision B dated 9 August 2011 - Construction Site Management Plan. It provides for management of the site during demolition and excavation. It does not have any specific provision related to the southern façade except that it indicates the location and plan extent of the hoarding (including the scaffolding above) on the Parramatta Road footpath. 2. CSMP2 Revision C dated 21 August 2011 - Construction Site Management Plan. It is a hoarding plan, including the scaffolding above the hoarding platform. For convenience, in evidence and submissions, the word "hoarding" was used to describe both the hoarding and the scaffolding, and I shall generally do the same. The function of the hoarding is to protect the public on the Parramatta Road footpath and to minimise material, such as dust, spreading from the site. This plan sets out the requirements for the hoarding including layout dimensions and shows it independent of the southern façade. A note "Needling beam level to checked on site" seems to have been left over from a previous version of this plan, which showed needles connecting the hoarding platform to an internal gantry by running the needles through the southern facade. This previous version was also called CSMP2 Revision C but was dated 9 August 2011. A needle is a beam (such as a steel scaffolding tube) that penetrates a wall in order to (in this case) enable an external element to be tied to an internal element. No details are shown for any connection between the hoarding and the building and for securing the hoarding against lateral loads and movements (for example so that it could resist wind loading). 3. CSMP3 Revision D dated 20 September 2011 - Basement Demolition Plan. It should be read in conjunction with CSMP4 Revision C and CSMP5 Revision C (see below). It has a section which in words describes what is required during the demolition phase for Stages 1 to 4. It has a plan view of the existing building which divides the site into two zones and labels certain walls which are to be demolished. It includes the note: "Extent of existing walls to be removed shown hatched (typical)". The walls shown hatched are certain internal walls and part of the western wall and do not include the southern façade and existing internal north/south walls about 6 metres long behind the southern façade. It sets out in steps 1 to 9 for "Stage 3: Demolition & bracing of the existing structure" what is required to maintain stability of the façade during the demolition phase. Note 6 states: "Ensure engineer signs off on all bracing & if required extra bracing is to be provided as per engineers instructions". I do not accept the defendants' submission that Stage 3 notes 7 and 8 permit the demolition that occurred of the southern façade. Note 7 only permits replacement of structural elements, which would include the ground floor columns between the shop bays. Note 8 does not permit removal but only specifies what is to be done with elements of the façade that are otherwise permitted to be removed. The intent is clear that the most of the southern façade is to remain. Those notes state: 7. Front façade & side walls to be inspected once scaffolding and hoarding in place. Where required in strict accordance with the engineers instructions. The structural elements are to be repaired, replaced and or duplicated as per the approved DA requirements. 8. If the [sic] any elements of the façade are to be removed and reinstated then these elements are to be hand removed, cleaned, labeled [sic] and stored to allow for reinstatement. 1. Plan CSMP4 Revision C dated 15 September 2011 - Basement Demolition & Excavation Plan. It denotes by reference to a light shaded area in the legend that the southern façade is part of what is "to remain". Walls that are to be demolished are identified by hatching. 2. CSMP5 Revision C dated 15 September 2011 - Basement Demolition & Excavation Plan. It contains details about bracing and support elements related to the front façade and the western wall. Such bracing was in place before Global came on site. It nominates that floor and roof timber beams parallel to the front façade and set back about five metres from it are to remain. The beams are shown to be tied to the walls using special purpose brackets. The purpose of the beams and brackets, together with the floor joists which were required to remain, was to stabilise the internal walls which were to remain which in turn were required to stabilise the front façade.
17. For these reasons, it is clear, in my opinion, that the development consent (including the plans forming part of the construction certificate) did not permit the demolition that occurred.

ISSUE 2: WHETHER THE DEFENDANTS ARE LIABLE FOR THE DEMOLITION OF THE SOUTHERN FACADE

1. The second main issue, as identified in the defendants' submissions, is whether the defendants are liable for Global's unauthorised demolition of the southern façade. This requires consideration of their involvement in bringing about the GRC/Global demolition contract and in the demolition of the southern façade, as well as other matters. It is convenient at this point to set out the chronology in detail even though some of it overlaps with, or is referable to, the defence of necessity issue.

The Geitonia/GRC relationship

1. Geitonia and GRC tendered a copy of a construction contract between Geitonia, Mr Steve Skintzis and GRC dated 15 June 2011 and submit that it is relevant to the relationship between them. It describes Geitonia as the owner, Mr Skintzis as the builder and GRC as the project manager. It states that GRC "has been engaged by the builder to manage the financial transitions between the builder and the owner". "Transitions" in this context does not make sense: it is probably a misspelling of "transactions". That impression is fortified by Schedule 2 (see below). The contract recites that the owner has engaged the builder and the project manager to execute and complete the works described in Schedule 1 pursuant to the contract conditions; and that the amount to be paid by the owner (referred to as "the contract sum") to the project manager and the date or dates for payment are set out in Schedule 2. Schedule 1 describes the work to be completed "by the builder", namely "construction". Schedule 2 provides that all claims will be presented to the owner by the project manager and that the owner consents to pay all moneys to the project manager. Clause 17(e)(i) provides that the builder in the name of the project manager will obtain and effect contract work insurance. Otherwise the contract does not mention the project manager or GRC. Consequently, the recital that the owner has engaged the project manager (in addition to the builder) to execute and complete the works is erroneous.
2. In my opinion, this contract is irrelevant, or at least not significant, because it is expressly concerned only with "construction" of the building and not with demolition.
3. Looking at the evidence as a whole, as discussed below, I am satisfied that GRC through Foong was Geitonia's project manager in a substantive way for the demolition work and that Mr Skintzis was not involved in the demolition contractual arrangements or work.

The GRC/Global demolition contract

1. GRC retained Global to do the demolition work. Global was owned by John Loukis and his father George Loukis. Sozo Loukis (John Loukis' brother) was Global's foreman and machinery operator. A verbal demolition agreement between GRC and Global was concluded in the week of Monday 3 October 2011 between Mr Gertos for GRC and John and George Loukis for Global. A written demolition contract between them was signed on Tuesday 18 or Wednesday 19 October 2011 by Foong for GRC and Sozo Loukis for Global.
2. Of those persons, the only ones who gave evidence at the trial were John Loukis and Sozo Loukis. During demolition, Foong and Vince Nesci of GRC were in charge, John Loukis was present on site part of the time and Sozo and George Loukis full time.
3. I accept the evidence of John Loukis and Sozo Loukis. In doing so, I take into account, as the defendants point out, that neither produced any note or record of the events to which they deposed; that GRC employees Foong and Vince Nesci did not give evidence; and that George Loukis, who is residing overseas, did not give evidence. In my opinion, John Loukis was an impressive, reliable and transparently honest witness. Sozo Loukis was also generally reliable and transparently honest, but his recollection did not seem to me to be as good as that of his brother. If there is any inconsistency between them, I prefer the evidence of John Loukis.
4. The contractual negotiations for demolition were initiated by Foong who rang John Loukis and said he had a job for him to quote. They arranged to meet on site. John Loukis knew Foong from previous demolition jobs when Foong had been with another company, not GRC.
5. It is highly likely that this first site meeting was in the second half of September 2011. In attendance were John Loukis, his father George Loukis, Foong and a man whom Foong introduced as "Vince", who later turned out to be GRC's foreman on the job. John Loukis never knew Vince's surname. Recently the prosecutor learnt that his surname is Nesci. At the first site meeting, Foong said that he was now with GRC, that Mr Gertos was the owner of the project, and that he (Foong) was the project manager. John Loukis and his father knew Mr Gertos from an earlier development for which Mr Gertos had been the accountant. Foong said the whole building had to come down except the southern façade and the two side walls, which they were going to brace. He asked John Loukis to price the job. No plans or other documents were shown to John Loukis. Foong wanted them to start straight away but they could not because they had other jobs on. At the time of the first site meeting, hoarding (by which I mean to include the scaffolding above) had already been erected on the Parramatta Road side of the southern façade.
6. Subsequently, John Loukis rang Foong and gave him a price of $160,000 or $170,000. Foong said the price was too high, but to leave it with him and he would "run it by Bill" and get back to him. John Loukis rang Foong to chase him up. Foong said he was still waiting for Mr Gertos' answer.
7. A week or two later, Foong rang John Loukis and asked him to attend a second site meeting, which occurred next day. In attendance were John Loukis, his father George Loukis and Foong. Foong said that there are changes now; because of the cost factor we are going to remove the outside walls by hand with minimal damage to the bricks and use the same bricks on the same walls and rebuild them. Hand demolition was a more expensive job for Global than using machines, but at this stage John Loukis wanted the job. He asked where the price had to be. Foong said he could tell him roughly and gave a price of $120,000. John Loukis rejected that price.
8. A day or so later, after talking it over with his father, John Loukis rang Foong and offered him $140,000. Foong said he would get back to him.
9. Subsequently, Foong telephoned John Loukis and said Mr Gertos wanted a meeting with him and his father. They arranged to meet at a coffee shop about two doors up from Mr Gertos' office on Parramatta Road.
10. The coffee shop meeting occurred in the week of Monday 3 October 2011. It was an important meeting. In attendance were John Loukis, his father George Loukis, Mr Gertos, Foong and Vince. Mr Gertos did the talking. He asked: "Are we going to demolish this thing or what?" He mainly spoke to George Loukis. They spoke about the price. Mr Gertos proposed a price of $130,000. Eventually, a price of $135,000 (before GST) was agreed. John and George Loukis shook Mr Gertos' hand, indicating, at least in part, a concluded agreement. Mr Gertos pressed them to start on Monday (10 October 2011) but they said that was impossible (they had other work on). They said they would work towards starting on the following Friday (14 October 2011). Foong said he would email John Loukis a contract.
11. On Thursday 13 October 2011, Foong sent an email to John Loukis enclosing a draft GRC/Global demolition contract dated 3 September 2013. It named Global as the sub-contractor to GRC, specified a price of $135,000, and provided for a program of three weeks from 17 October 2011 to 5 November 2011. It included the confirmatory note that: "This is to confirm the agreement reached with you to supply all labour, plant and equipment to complete the demolition and associated works in accordance with the Architectural drawings, Structural drawings, specifications, Australian standards, BCA, work cover and local council requirements". Clause 1 provided that the scope of demolition and excavation works as per engineer's details in drawings CSMP1, CSMP2, CSMP3, CSMP4 Revision A and CSMP4 Revision B and that "Revised drawing will be provided prior to demolition works starting". No drawings were attached. It can be seen that the revisions of most of the listed CSMP plans were not specified. Clause 11 of the draft contract provided: Allow for hand demolition to the south, east and western façade, bricks are to be salvage [sic], for the purpose of rebuilding, contractor to ensure minimal damages [sic] to salvage bricks. The south, east and west walls are to be demolished to street level (Parramatta Road).
12. John Loukis phoned Foong and said he required some changes to the draft contract. Foong said that's fine, just delete the bits John Loukis did not want and send it back to him. John Loukis highlighted the bits he wanted deleted on a digital copy of the draft contract and sent it back to Foong.
13. On Tuesday 18 October 2011 or, Wednesday 19 October 2011 - a day or two after Global started demolition of the building - Sozo Loukis signed the written GRC/Global demolition contract dated 3 September 2011 on site. Sozo did so at John Loukis' request because the latter said he could not come to the site to sign it, and also at Foong's request. Foong had signed it on behalf of GRC. John Loukis first saw it that day at home when his brother gave it to him.
14. The signed contract specified a price of $135,000, and contained the same confirmatory note as in the draft contract and a clause 10 identical to clause 11 of the draft contract: both are quoted above at [67]. It omitted the program duration, and provided that the scope of the works was as per engineer's details in specified CAM drawings. These drawings were not attached to the contract and no one at Global ever saw them. The prosecutor tendered them. They were: 1. CSMP1 Revision A dated 17 May 2011 - Construction Management Plan. Curiously, it is an earlier revision than the Revision B version of this drawing dated 9 August 2011 included in the earlier construction certificate of 21 September 2011. 2. CSMP2 Revision D dated 13 October 2011 - B-Class Hoarding Plan. It shows the hoarding (including the scaffolding above) on Parramatta Road. It includes a note repeated thrice at three levels: "Brace scaffolding to internal north/south wall". Next to each note is a dashed line from the scaffolding to well inside the building, indicating bracing to internal north/south walls. The aim was to tie the scaffolding back into the perpendicular internal north/south walls within the building to provide lateral stability for the scaffolding. Those details are missing from the earlier revision of this hoarding plan CSMP2 Revision C dated 9 August 2011, included in the construction certificate of 21 September 2011, discussed above at [51(b)]. It is convenient at this point to note that photographs taken by Mr Cutuk on 18 October 2011 show that in fact the scaffolding was tied back to the façade with steel scaffolding tubes. Photograph 7 has the caption: "Poor condition of wall - temporarily tied to internal walls". As the prosecution expert Mr Delprado said, this strongly indicates that the tubes went back further into the building and were secured to internal north/south walls. Indeed, photograph 7 shows the tubing going further back into the building out of sight, consistently with CSMP2 Revision D. I disagree with the defendants' expert Mr El Safty that it should be concluded from photograph 7 that the bracing was only connected to the southern façade itself and therefore that the scaffolding imposed greater stress on the façade. The photographs show that a single set of scaffolding was constructed rather than the two sets shown in CSMP2 Revision D and that it was not as close to the façade as one of the latter. 1. CSMP3 Revision E dated 13 October 2011 - Basement Demolition Plan. Significantly, it omits the following notation and the hatching which had appeared on the earlier revision in the construction certificate (CSMP3 Revision D dated 20 September 2009): "Extent of existing walls to be removed shown hatched - (typical)". As discussed earlier, this notation meant that the hatched walls were the only walls to be demolished; and the hatched walls did not include the southern façade. Thus, the removal in CSMP3 Revision E of the notation and hatching signified demolition of the southern façade. This was reinforced by new note 5 in CSMP3 Revision E (which was absent from the earlier Revision D) under "Stage 3 Demolition & Bracing of the Existing Structure": 5. The walls that were to be retained will need to be demolished by hand with the bricks stored for reinstatement. Note machinery is not to be used in this area. 1. CSMP4 Revision D dated 13 October 2011 - Basement Demolition & Excavation Plan. This plan shows stages of the excavation following upon the demolition outlined in CSMP3 Revision E. 2. CSMP5 Revision C dated 15 September 2011 - Basement Demolition & Excavation Plan. It shows bracing details, which were put in place by others before Global set up on site.
15. As analysed earlier, the GRC/Global contract requiring demolition of the southern façade was clearly contrary to the requirement of the development consent (including the plans forming part of the construction certificate) that the majority of the southern façade be retained.
16. Several further points may be noted about the said three CAM plans dated 13 October 2011. First, they were not approved as part of the construction certificate, which they post-date, and they bear a later revision letter than the construction certificate plans. Secondly, they bear the note "as per client site requirements/conditions". As Mr Cutuk said in evidence, Mr Gertos was the client. Finally, the Loukises never saw them or any other plans.

Demolition of the southern façade

1. Demolition of the building was carried out between 17 October and about 7 November 2011, commencing with removal of the roof and moving from the rear of the building. It included demolition by hand of the southern façade except for ground floor columns which were the Parramatta Road edge of north/south internal walls about six metres long forming the bays of the ground floor shops. Global tiered down those walls as directed.
2. Before Global went on site, steel braces bracing the front (southern) façade with each of the side walls were already in place. John Loukis would not have started demolishing the southern façade if they had not already been in place. He satisfied himself that the bracing was good enough to do the demolition work on the southern facade.
3. On Friday 14 October 2011 John Loukis and his brother Sozo Loukis set up the site for the job (erecting signs etc) and they underwent a site induction conducted by Vince. Foong was on site. The hoarding over the Parramatta Road pavement (including the scaffolding above) was already in place.
4. On Monday 17 October 2011 Global started work on site, commencing with removal of the roof and demolition of the rear of the building and moving progressively towards the front of the building where the southern façade stood. Vince and Foong were in charge.
5. John Loukis was on site on Monday and Tuesday 17 and 18 October and from time to time thereafter. Sozo Loukis and their father were on site every day.
6. Global started work by removing the tin roof of the building and demolishing external walls at the rear of the building.
7. Vince told them how to demolish the building. Sozo Loukis did not like this because he felt they knew how to do the job based on their experience, but he did not argue as he did not want to have a bad relationship. The Loukises never saw any plans, although John Loukis saw Foong holding what seemed to be engineer's plans. John Loukis saw an engineer on site, whom I infer was Mr Cutuk, and understood that there was disagreement with the engineer as to the safest way of demolishing the building.
8. During the demolition job there was a change to the scope of the works in an oral direction by Vince Nesci and Foong made to John Loukis on site, which Global thereafter effected. They directed him to retain the brick columns (or walls) that were the Parramatta Road end of the bays of the shops facing Parramatta Road, and to tier down the side perimeter walls and not demolish the whole of them. They said they wanted to retain the columns because they were heritage and hard to reproduce, and that they were going to brick into the tiered down walls and use them in the new structure. These columns facing the hoarding on Parramatta Road and the tiered walls are shown in photographs taken in early November 2011.
9. John Loukis had arguments with Foong and Vince Nesci about this change to the scope of the works because he was concerned that retention of the columns and tiered down walls made it dangerous to his employees who had to stand near them in order to demolish the southern façade. He advised Foong and Vince verbally of this. Relevantly to his concern, the limewater of the mortar between the bricks had been eaten away (affecting the bonding between the bricks). This meant the bricks could be pushed over by hand. Bricks were crumbling. He had never come across anything like it. Importantly, however, he testified that if they had not been required to demolish the southern façade, then retaining the columns and tiered down walls would not have been a problem for him.
10. The bricks from the southern façade and the two side walls were removed by hand. They were put in an excavator bucket and stockpiled on site where they were cleaned by others.

The condition of the southern façade

1. There is no doubt that the condition of the southern façade was poor. John Loukis' observations concerning its condition have been noted above at [81].
2. Mr Cutuk gave affidavit evidence in the prosecutor's case that: (a) on 18 October 2011 he told Foong to stop work because the façade wall was not safe, it was leaning over and was substantially cracked and the brickwork was extremely deteriorated; (b) Foong told the demolishers to stop work and moved them to the rear of the building; (c) Mr Cutuk also formed the view that the façade could not be preserved; (d) at this stage the bracing of the internal walls of the front rooms at ground level was in place; and (e) Mr Cutuk told Mr Gertos what his opinion was.
3. On 19 October 2011, Mr Cutuk prepared a CAM structural report for Geitonia in which he said that, as he said could be observed in the attached photographs, the façade walls had significantly deteriorated. He expressed the opinion that the condition of the façade walls had deteriorated beyond repair. He continued: Although the walls can be temporarily braced, they are not capable of being maintained as the permanent facade walls of the proposed building...We have recommended that the facade be removed and re-instated. The brickwork will have to be removed by hand and stored, to be re-used...
4. Mr Cutuk was not cross-examined. However, expert engineering evidence adduced by the prosecutor at the trial that the façade walls could have been repaired and were capable of being retained permanently, which I accept, shows that, to say the least, there are highly controversial aspects of Mr Cutuk's report. I also conclude that his recollection that he told Foong to stop work, and that Foong told the demolishers to stop work and moved them to the rear of the building was faulty and should not be accepted. This is because I accept the competing evidence of John Loukis and Sozo Loukis that they were never made aware of any such stop work order and work did not stop; and it is unlikely that Foong would not have given a stop work order to Global if he had received a stop work order from the engineer.
5. On 19 October 2011, Foong emailed a copy of the Cutuk structural report to Mr Ladogna and they discussed the matter by telephone. On 20 October 2011, Mr Ladogna sent an email to Foong advising that the structural report be provided to Council for guidance as to "whether a s 96 will be required" (ie a modification of the development consent under s 96 EPA Act). Mr Ladogna continued, accurately: The description in the development consent is very clear that the majority of the front and side facades were to be retained and repaired where necessary, This is a matter that has been discussed in length by this office, and I am sorry but we cannot approve the total removal of the facade without prior advice from Council.
6. In reply, on 20 October 2011 Foong emailed Mr Ladogna that the structural report and demolition plans had been lodged with Council and that for safety reasons demolition on the site had continued "strictly in accordance with the engineer's directions and demolition plans".
7. Earlier that day, a letter dated 20 October 2011 from Geitonia signed by Mr Gertos was hand delivered to Council. It was addressed to Mr Iain Betts, a Council senior assessment officer who had previously been involved in assessing a Geitonia application to modify the development consent, which (coincidentally) was approved by Council on the same date, 20 October 2011. The letter stated: We enclose herewith the following: * Structural Report 1-13 Parramatta Road, Annandale NSW Job No C10147 prepared by Cam Consulting Structural & Civil Engineers dated 19th October 2011. * Detailed Demolition Plans prepared by Cam Consulting Structural & Civil Engineers The above mentioned engineers have instructed us to hand demolish, the facades to a level outlined in the attached plans. The engineers have advised that the facades have structurally failed and pose a real danger to public safety. We have contacted our PCA Mr Paul Ladogna of Vic Lilli & Partners ([a phone number was given] and he has advised that he can not [sic] approve the removal of the facades with out [sic] prior advice from council. We note that contained within the approved documents councils [sic] has inserted controls dealing with the treatment of the facades which permits replacement of structural elements hence the facades. Based on the existing controls we intend to commence to salvage the original bricks and all other fixtures and fittings along with documenting the facades proportions & details and undertake to reinstate the facades in accordance with the above mentioned controls. Could you please contact the above mentioned PCA to discuss this matter. Should there be any other requirements by Council we must for fill [sic] to ensure compliance please contact us immediately.
8. This letter of 20 October 2011 from Geitonia signed by Mr Gertos is not an application of any kind known under the EPA Act to obtain approval to carry out the demolition of the southern façade. Nor was any such approval under the EPA Act granted prior to its demolition. Consequently, Mr Betts, as a Council assessor, did not "assess" the letter when it came to his attention (see below).
9. Mr Cutuk's enclosed structural engineering report did not say that the facades pose a "real danger to public safety". It said that the façade walls have deteriorated beyond repair and, although they could be temporarily braced, they were not capable of being maintained permanently. It recommended that the façade be removed and reinstated and stated its brickwork will have to be removed by hand and stored for reuse to match the current facade.
10. The plans prepared by CAM enclosed with Mr Gertos' letter of 20 October 2011 were the same plans as those referred to in the GRC/Global demolition contract signed earlier on 18 or 19 October 2011 (described above at [70]), except that CSMP1 was Revision B dated 9 August 2011 (not Revision A dated 17 May 2011). The date of 13 October 2011, on the demolition plans, which I accept as their true date, pre-dates Mr Cutuk's site inspection on 18 October 2011 which he says gave rise to his recommendation that the southern façade be demolished rather than retained, and Mr Cutuk's structural report dated 19 October 2011. I do not accept the defendants' submission that in fact Mr Cutuk prepared those plans dated 13 October 2011 after his site inspection on 18 October 2011. Mr Cutuk did not say that expressly and I am not prepared to infer that that was when they were prepared.
11. Mr Betts took no action on the letter from Mr Gertos, although in the ordinary course he would have read it within a week of its receipt by Council on 20 October 2011. In cross-examination, Mr Betts was taxed with the assertion in the letter that the engineers had advised that the facades have structurally failed and posed a real danger to public safety. He confessed to not appreciating that there was a present danger and said that in retrospect he should have actioned the letter in some way, such as by referring it to a Council compliance officer, and that he did not do so probably due to pressure of work. This is tempered by the fact that the letter did not say, and he did not know, that GRC was proceeding with demolition of the southern façade.
12. The letter of 20 October 2011 from Mr Gertos to Mr Betts is disingenuous because it does not disclose that he had agreed with Global for demolition of the southern façade in early October 2011, well before Mr Cutuk's inspection of 18 October 2011 which is said to have been the occasion for his report.

Council investigations

1. On Monday 7 November 2011 Council commenced an investigation into a complaint that the front (southern) façade and the side walls had been demolished by interviewing Mr Gertos twice. A Council compliance officer, Mr Paul Vogt, was in charge of both interviews accompanied on each occasion by another Council officer (Mr Mouxouris on the first occasion, Mr Betts on the second).
2. At the first interview, Foong and Vince were also present. Foong indicated that demolition was complete, they were just doing a clean-up which was slow because they were salvaging the original bricks but they would be finished today. Mr Gertos referred to the structural report and demolition plan sent to Mr Betts. Mr Gertos said the demolition happened under Global under the demolition plan from the engineer. He said that they were "keeping the columns, façade columns and sound party walls". He said that GRC had engaged Global for the demolition. Mr Gertos said that the certifier had sent notification saying it was being demolished and that he had not authorised the demolition. In response to Mr Vogt's question whether Mr Gertos believed the demolition was authorised, Mr Gertos said: We are entitled to duplicate, restore or replace structural elements on the façade and side walls. No-one was aware of the state of the building. We are rebuilding it the same way in accordance with the consent. The structural details and demolition plans were sent to Council on 20 October 2011. It's costing triple the money to rebuild. The engineer said he couldn't retain it as it was structurally unstable. The parapet and brick had no mortar. There were cracks in the wall. The walls were pushing out. A s 96 was required to remove the mock roof. The structural engineer said that it was unsafe and could not be rebuilt. It will be totally replaced using the original bricks and windows. It is being restored if possible. The building was ready to fall over. The parapet had cracked away. There were four recorded fires and all structural beams had deviated. The main thing was that the façade had bowed out. Under the circumstances, we did not want to remove and rebuild the façade as it is more expensive and a time delay. We are hoping to finish in another five months, the rebuild.
3. The second interview with Mr Gertos that day was at Mr Gertos' office. Also present were Mr Cutuk, the project architect Ms Kegler, and Foong. Mr Gertos repeated what he had said at the first interview.
4. On 9 November 2011, Mr Vogt received an email from Mr Gertos enclosing a letter "from the project manager in reply to your enquiries". The enclosed unsigned letter to Mr Vogt purported to be from GRC as project manager. Although verbose and unclear, the letter fastens on points made in Mr Gertos' letter of 20 October 2011 to Mr Betts.

The false documents of late November 2011

1. Between 9 and 17 November 2011 whilst John Loukis was on holidays abroad he received a phone call from Foong who said he wanted to see him. They did not make an arrangement to meet at that stage. John Loukis told Foong he would ring him when he got back. After he got back, Foong phoned him and organised a time for him to come and see him at Global's office. On the agreed day, they met in John Loukis' office. No one else was present. The evidence of the conversations between them have been admitted as against GRC but only snippets of those conversations have been admitted against Geitonia and Mr Gertos, as explained further below.
2. In late November 2011 three documents came into the possession of John Loukis that he had never seen before. The prosecutor submits they are relevant to the defence of necessity raised by Mr Gertos and Geitonia. They were, I find, a false GRC Global demolition contract, a false site instruction dated 25 October 2011 signed by Foong and a chronology in Foong's handwriting with a false entry for 25 October 2011. These documents create the false impression that the demolition contract excluded demolition of the front (southern) façade, that on 25 October 2011 there was a site instruction for its demolition because of its then dangerous condition, and that its demolition was consequential thereafter. In fact, the actual demolition contract entered into earlier on 17 or 18 October 2011 provided for demolition of the southern façade, as did the early October 2011 oral demolition agreement.
3. The falsity of the contract produced to John Loukis in late November 2011 is apparent from the critical respects in which it differs from the actual contract. First, the new contract was for $102,000 and not $135,000 as in the actual contract. The difference is $33,000. Secondly, $33,000 is the amount referred to in the site instruction dated 25 October 2011 signed by Foong, addressed to Global and commencing "Dear John", which says: As per our discussion today can you please proceed with hand demolition to the south-east and western façade. Agreed price is $33,000 plus GST ($33,000). You must ensure that all effort is made to salvage bricks, windows and doors for the purpose of rebuilding the façade.
4. Thirdly, as discussed earlier, revised plans designating the scope of the works specified in cl 1 of the actual demolition contract showed demolition of the southern façade. The false contract produced in late November 2011 specified in cl 1 earlier revisions of those plans. Although they are not in evidence, it should be inferred from later revisions attached to the construction certificate, which excluded demolition of the southern façade, that they also excluded demolition of the southern façade.
5. Fourthly, the false contract contains new clauses 4 and 5 requiring Global to retain the southern façade along with six metres of party walls and side walls as per engineer's plan, and to ensure that vibration from demolition works does not transfer to the southern façade.
6. Fifthly, the actual contract includes reference to several structural drawings that have been blacked out in the unsigned contract. Sixthly, in the actual contract next to the word "Program" there are no details but in the false contract next to "Program" appear the words "Four weeks from the date of commencement".
7. Paradoxically, the false contract includes cll 13 and 14 which appear in the actual contract as cll 10 and 11, requiring hand demolition of the front façade and side walls and salvage of bricks for the purpose of rebuilding. Prima facie, the retention of those provisions was a slip by the author of the false contract given their gross inconsistency with the new provisions in the false contract.
8. The above evidence was admitted against all defendants. John Loukis' following evidence explaining the circumstances in which the documents came into his possession in late November 2011 was admitted only against GRC, except to the limited extent referred to earlier. I refused to admit it against Geitonia and Mr Gertos under ss 137 and 135(a) of the Evidence Act 1995 for the reasons given in my judgment in Leichhardt Council v Geitonia Pty Ltd (No 3) [2015] NSWLEC 31. The further evidence, admitted only against GRC, appears in Mr Loukis' affidavit and in his more recent supplementary statement. Mr Loukis said in his affidavit: 45. On the day we had agreed to meet, FOONG came to my office at Ingleburn. We met in my office. No-one else was present. FOONG said something to this effect- I came down so we can compare notes. 46. He also gave me a new contract to sign for the demolition job at 1-13 Parramatta Road. A copy of this new contract is annexed and marked Annexure J. I had never seen this document before. He explained to me- I've got problems with Council and if they ask for the contract you give them this new one. 47. I saw that there were differences between the new contract and the original contract. I told FOONG I wasn't going to sign the new contract. FOONG said - BILL's not going to be happy with that. 48. FOONG said he would leave the new contract with me to think about. 49. In the same meeting, FOONG also gave me a document entitled "Site instruction". A copy is annexed and marked Annexure K. I had never previously seen that site instruction. 50. FOONG asked me to give him some paper. I gave him a piece of Global Demolition's letterhead. FOONG said he would write down the details of the job which appeared in his diary. He then wrote down on both sides of the piece of paper a series of dates. A copy of that piece of paper is annexed and marked Annexure L. I have looked at these dates and the details of the job that FOONG has written against them. The description he has given for the job on 25 October 2011 is not true. There are other details that also may not be right.
9. The said untrue description for the job on 25 October 2011 was: "Still waiting engineers instruction. Engineer come lunch time and said was no good dangerous. Price up hand demo for GRC projects".
10. In his supplementary statement, Mr Loukis said: 1. I refer to paragraphs 45 and 46 of my affidavit (sworn 7 November 2012). When FOONG gave me the new contract to sign, he said- Bill asked me to bring you this new contract 2. At the time when FOONG visited me at my office there was still an amount outstanding for my invoices for the demolition job at 1-13 Parramatta Road, Annandale. I had been ringing BILL GERTOS' office to try to get payment but I hadn't been successful.
11. There is evidence admitted against all defendants that, later, John Loukis received a call from Mr Gertos. They had an argument about Global's invoices to GRC, not all of which had been paid at that stage.
12. The following table summarises the machinations that went on in relation to the CSMP plans approved in the construction certificate: Construction Certificate Demolition Contract Gertos Letter False Demolition Contract 21/9/11 17/10/11 20/10/11 11/11 CSMP1 RevB CSMP1 RevA CSMP1 RevB CSMP1 RevA 9/8/11 17/5/11 9/8/11 17/5/11 CSMP2 RevC CSMP2 RevD CSMP2 RevD CSMP2 RevB 9/8/11 13/10/11 13/10/11 20/7/11 CSMP3 RevD CSMP3 RevE CSMP3 RevE CSMP3 RevB 20/9/11 13/10/11 13/10/11 9/8/11 CSMP4 RevC CSMP4 RevD CSMP4 RevD CSMP4 RevB 15/9/11 13/10/11 13/10/11 9/8/11 CSMP5 RevC CSMP5 RevC CSMP5 RevC CSMP5 RevB 15/9/11 15/9/11 15/9/11 9/8/11

1. The evidence admitted against GRC evidences that, at a time when Council was investigating the incident, GRC through Foong attempted in late November 2011 to mislead Council and avoid a prosecution. That weighs heavily against GRC as evidence of consciousness of guilt.
2. Given that I refused to admit the surrounding evidence against Geitonia and Mr Gertos, I do not propose to draw an adverse conclusion against them from the limited evidence admitted against them.

Liability of the defendants: submissions

1. Geitonia and Mr Gertos submit that the conduct of Global in demolishing the southern façade should not be attributed to them.
2. In summary, in support of the submission they say the following. The prosecutor's enormously detailed circumstantial case does not establish knowledge, authority and consent of Geitonia and Mr Gertos to the demolition. The evidence only shows Mr Gertos on site on one occasion during the course of the demolition. There is no evidence he was involved in drafting or transmitting the demolition contract or its earlier draft. There had been some social interaction between Mr Gertos and the Loukises prior to all this. There was nothing sinister about Foong saying during contractual negotiations that he would run it past Bill given that Mr Gertos was the owner of the land through Geitonia. The prosecution did not call Foong, Vince Nesci and George Loukis as witnesses (albeit George Loukis is overseas). The coffee shop meeting is a critical point in the prosecutor's circumstantial case and the court therefore has to be satisfied beyond reasonable doubt as to the correctness of John Loukis' evidence of what was said on that occasion: Shepherd v R [1990] HCA 56, 170 CLR 573. John Loukis' evidence about what Mr Gertos said about price at the coffee shop meeting is illogical, and in any case is not sinister. There were no plans at the coffee shop meeting and Mr Gertos' presence was a relatively minor participation and merely consistent with him being the owner of the land and ultimately financially responsible for payment. After the job was finished, John Loukis did not immediately chase Mr Gertos for payment but sought payment from Foong. It should be inferred that Mr Cutuk's 13 October 2011 plans have the wrong date and were prepared on 19 October 2011. Mr Cutuk's Demolition, Management, Procedure and Sequence Plan of August 2010 contemplated that demolition would be carried out by hand or with small excavating equipment. Mr Gertos said nothing when interviewed by a Council officer on 7 November 2011 to indicate he was the controlling mind and will of GRC. Mr Gertos and Geitonia are entitled to the presumption of innocence.
3. Geitonia and Mr Gertos also submit that I should take into account evidence of their good character. The evidence of their good character consists of the prosecutor's concession that the prosecutor is not aware that any of the defendants have a prior conviction for an offence of this type, meaning an offence contrary to s 125(1) of the EPA Act consisting of a breach of ss 76A or 76B. Good character does not provide a defence. It is only one of the many factors that the Court is entitled to take into account, as I do, in favour of the defendants on the question whether the prosecution has proved guilt beyond reasonable doubt. What weight the Court gives it is completely a matter for the Court as the tribunal of fact: Melbourne v The Queen [1999] HCA 32, 198 CLR 1; Braysich v The Queen [2011] HCA 14, 243 CLR 434 at [40]-[43]. In all the circumstances of the case, I give it little weight.

Liability of the defendants: legal principles

1. In a strict liability offence case such as the present, a corporation may be liable directly for the conduct of a person who is the embodiment of the company or its directing mind and will, and vicariously for servants or agents or, in some circumstances, independent contractors: Department of Environment and Climate Change v Jack and Bill Issa Pty Ltd (No 5) [2009] NSWLEC 232, 172 LGERA 225 at [78]-[95] (Biscoe J) and the authorities discussed therein. One of the recognised exceptions to the general rule that a principal is not vicariously liable for the actions of an independent contractor is where the defendant directly authorised the unlawful act or if the act was the necessary consequence of the direct authorisation: North Sydney Council v Moline (No 2) [2008] NSWLEC 169 at [115] per Preston CJ of LEC; Environment Protection Authority v Multiplex Constructions Pty Ltd [2000] NSWLEC 6, 112 LGERA 1 at [278] per Lloyd J; Environment Protection Authority v McConnell Dowell Constructors (Aust) Pty Ltd [2003] NSWLEC 70, 128 LGERA 240 at [104]-[106] per Pearlman J; Stoneman v Lyons [1975] HCA 59, 133 CLR 550 at 573-4 per Mason J, at 562 per Stephen J; Kondis v State Transport Authority [1984] HCA 61, 154 CLR 672 at 692 per Brennan J, who gave this example: "If I prevail upon the driver of a taxi to drive dangerously, I cannot escape liability for the consequences by pointing to the general employment of the driver by the owner of the taxi". In my opinion, this principle applies to the conduct of Global in demolishing the southern façade.
2. Further, as a matter of statutory construction, in my opinion a special attribution rule can be derived from the relevant statutory provisions in this case - ss 76A(1)(b) and 125(1) EPA Act - that the conduct of the director of a landholder company in causing or permitting another person to carry out development on its land contrary to or otherwise than in accordance with an applicable development consent, is to be attributed to the company, at least where such conduct is in furtherance of the company's interests or not against them: cf Jack and Bill Issa Pty Ltd (No 5) at [96]-[98]. Relevantly, the policy of these provisions is to suppress development contrary to or not in accordance with a development consent where an environmental planning instrument requires development consent. "Carry out development" offences under s 125 of the EPA Act are usually committed using employees or independent contractors such as builders, demolishers and tradespeople. The seriousness with which the legislature regards the offence is reflected in the maximum penalty of $1.1 million in this Court. It is to be expected that the range of potential offenders will include corporations. In my opinion, this special attribution rule also applies in this case to Geitonia and its alter ego Mr Gertos.
3. There is nothing conceptually wrong in prosecuting both the company (Geitonia) for the identical acts and decisions as are relied upon as the acts and decisions of the company, and also the individual (Mr Gertos) who performed those acts and decisions, for they are different legal personalities: Hamilton v Whitehead [1988] HCA 65, 166 CLR 121 at 128. It would defeat one of the purposes of the EPA Act if individuals who offend through their corporations could avoid liability because only the corporations could be held liable. There have been many cases in this Court of environmental and planning offences found to have been committed in respect of the one event by both a company and its director and/or primary shareholder.
4. In relation to the reference in the defendant's submissions to Shepherd v R, I would say immediately that I am satisfied beyond reasonable doubt as to all my findings of fact in this case, including when accepting the evidence of John Loukis as to what occurred at the coffee shop meeting.

The liability of Geitonia

1. Applying these principles, Geitonia is liable directly for the conduct of Mr Gertos who was the embodiment of Geitonia and its sole director and shareholder, in carrying out development on the land contrary to the terms of the development consent where Geitonia was the owner of the land and the beneficiary of the development consent.
2. Geitonia is vicariously liable for the conduct of Global because Mr Gertos negotiated and agreed with John Loukis and George Loukis, the principals of Global, for the demolition by Global of the external walls. Confirmation that Mr Gertos was then acting as the embodiment of Geitonia and not just on his own behalf is found in the letter to Mr Betts dated 20 October 2011 that he wrote on Geitonia's letterhead informing Council of Geitonia's intention to demolish the facades. The letter evidences that it was Geitonia's decision that the southern façade be demolished; and confirms that when Mr Gertos earlier negotiated for and agreed that precise outcome with John and George Loukis (who were the embodiment of Global), he did so both on his own behalf and as the embodiment of Geitonia. The oral demolition agreement, including for hand demolition of the southern façade, that Mr Gertos negotiated with Global was negotiated at least three weeks before Global demolished the southern façade. Consistently with the oral agreement, the written GRC/Global demolition contract provided for hand demolition of the external walls including the southern façade. After the offence, Mr Gertos argued with John Loukis about payment of Global's invoices addressed to GRC.
3. The evidence leads to the conclusion that the conduct of Global in demolishing the southern façade was directly authorised by Mr Gertos and, through him, Geitonia, or was the necessary consequence of the direct authorisation. The fact that GRC also contracted with Global for the same outcome does not diminish the liability of Mr Gertos and Geitonia for the conduct of Global in demolishing the southern facade.
4. I consider that the conduct of Mr Gertos at the coffee shop meeting in negotiating a demolition agreement between GRC and Global was direct evidence of direct authorisation to GRC by Mr Gertos/Geitonia to demolish the external walls, including the southern facade. However, the prosecutor submits that the evidence of such direct authorisation was not direct but circumstantial, and I am prepared to approach the matter on that alternative basis. The circumstantial evidence then includes the following: 1. Geitonia gave a direct instruction because its directing mind and will, Mr Gertos, negotiated the contract with the demolishers specifically for demolition of the external walls; 2. Mr Gertos gave such an instruction to both GRC and Global because in the presence of GRC's manager, Foong, he negotiated with Global the contract with GRC for, inter alia, demolition of the external walls; 3. GRC, which was present at the negotiations through its project manager Foong, subsequently contracted with Global for the demolition of the external walls including the southern façade; 4. Global did then demolish the external walls, including the southern façade; 5. in carrying out the demolition work, Global workers were given directions as to how to perform their work by GRC employees Foong and Vince; 6. Global was paid by GRC for its work.
5. Further, there are admissions by Geitonia, through Mr Gertos, in its 20 October 2011 letter to Mr Betts imputing the intention to demolish and the conduct of the demolition directly to itself (note the frequent use of the words "us" and "we"); and in Mr Gertos' verbal admissions to Mr Vogt on 7 November 2011 (binding Geitonia under s 87(1)(a) of the Evidence Act) where Mr Gertos asserted that: "We are entitled to duplicate, restore or replace structural elements of the façade and side walls" and continued to justify the demolition in terms indicating that he accepted responsibility for it: above at, respectively, [89] and [96].
6. On all of the evidence, I conclude that: 1. Geitonia, by Mr Gertos, directly authorised Global to demolish the external walls, 2. the overwhelming inference is that Geitonia, by Mr Gertos, authorised GRC to contract with Global to demolish the external walls, and 3. consequently, GRC was authorised by Geitonia, through Mr Gertos, to give detailed instructions to Global as to what to do to, and how to carry out, the demolition of the external walls.
7. Consequently, I find Geitonia liable for the demolition that occurred of the southern façade.

The liability of Mr Gertos

1. Mr Gertos is separately liable for his own conduct in carrying out development (demolition of the southern façade) on the land contrary to the development consent. His liability is vicarious for the conduct of Global. This is because at the coffee shop meeting, in the presence of GRC's project manager, he negotiated and orally agreed with John and George Loukis (Global's principals) for the demolition by Global of the external walls. At the end of the coffee shop meeting, Mr Gertos sought to have Global start work on the following Monday 10 October 2011; the Loukises said that was impossible due to other work but that they would aim to start on Friday 14 October; and Foong said he would email John Loukis a contract. Consistently with all this, on Thursday 13 October 2011 Foong sent a draft demolition contract to John Loukis; on Friday 14 October Global set up on site; on Monday 17 October Global started demolition; on 18 or 19 October GRC through Foong contracted in writing with Global for the demolition of the external walls, and subsequently GRC paid Global for its work. Mr Gertos' vicarious liability is also evidenced by his letter of 20 October 2011 to Mr Betts, in which he confirmed that the demolition of the southern façade was the direct result of instructions to that effect given to Global.
2. From all of the evidence, there is a clear inference that Mr Gertos gave those instructions directly to Global, and also to GRC for it to contract with Global for the outcome that the external walls would be demolished.
3. In the context of the demolition plans dated 13 October 2011 requiring demolition of the southern façade (post-dating the construction certificate requiring its retention), Mr Cutuk's evidence, which I accept, was that his understanding from Mr Gertos was that the front wall (the southern façade) would be brought down, all the material retained and then put back up with the retained material. Until 30 April 2010 Mr Gertos was the director and secretary of GRC and very shortly afterwards, on 4 May 2010, became the sole director and secretary of Geitonia. Mr Gertos' in-house architect Ms Kegler also worked for GRC on this project. Foong was employed by GRC. Project meetings were held in Mr Gertos' office, which Mr Gertos sometimes attended. At least in respect of the processing of the developer's documents by Council, Ms Kegler also acted on behalf of Geitonia. Geitonia and GRC both used letterheads with the footer "A member of G Group". Foong and Ms Kegler used "@ggroup" email address. GRC took out insurance for the development works and in the documentation the contact person for GRC was given as "Bill" with the same telephone number as appears in the footer of the letter Mr Gertos wrote on Geitonia's letterhead to Council on 20 October 2011. Mr Gertos liaised directly and extensively in relation to the project with Mr Cutuk, the project structural engineer and plans draftsperson, whose plans were specified in the GRC/Global demolition contract and other documents (as analysed earlier).
4. For these reasons, I find Mr Gertos liable for the demolition of the southern façade that occurred.
5. It is unnecessary to go further but I will address the prosecutor's submissions that the liability of Geitonia and GRC is fortified by motive and evidence of consciousness of guilt.
6. Motive for committing an offence is not an element of the offence. However, as the prosecutor submits, a motive of saving money is a plausible explanation, which I accept, for the move in late September-early October 2011, well before demolition of the building commenced, for the scope of the works to be changed from retention of the external walls (as per the development consent and construction certificate) to the demolition of the external walls - at a time before any question of safety or danger to anyone was raised. During the process of seeking a price for demolition, Foong told John Loukis that because of the cost factor they were going to demolish the outside walls by hand with minimal damage and use the same bricks to rebuild them. Similarly, there is evidence, which I accept, from the prosecution engineering expert Mr Delprado that measures to remediate local areas of instability whilst retaining the external walls would cost money. The defendants' expert Mr El Safty at one point of cross-examination also said that it would have been a whole lot simpler to get rid of the southern façade - although when his use of the word "simpler" was drawn to his attention, he substituted the word "safer".
7. The prosecutor submits that there is evidence of consciousness of guilt by Mr Gertos, and therefore by his alter ego Geitonia, in attempting to avoid service of originating process in the proceedings and lying, as he did, about his identity on the occasion he was served. The prosecutor submits that avoidance of service is analogous to flight from the authorities or avoidance of apprehension, which can evidence a consciousness of guilt: R v Cook [2004] NSWCCA 52 at [21]-[25], [50], [61]; McKey v The Queen [2012] NSWCCA 1, 219 A Crim R 227 at [26]. A lie by an accused person can evidence consciousness of guilt if it is deliberate, relates to a material issue, be motivated by a realisation of guilt and fear of the truth, and clearly be shown to be a lie: R R v The Queen [2011] NSWCCA 235, 216 A Crim R 489 at [66]. I have reservations as to the soundness of the flight analogy, and there is difficulty in characterising Mr Gertos' lie about his identify as relating to a material issue. Even if these matters are evidence of consciousness of guilt, I do not give them significant weight.

The liability of GRC

1. GRC is vicariously responsible for Global's demolition of the southern façade because Global did so under its contract with GRC, the demolition plans referenced in that contract provided for the demolition of the external walls, and GRC employees Foong and Vince were in charge of the demolition

ISSUE 3: THE DEFENCE OF NECESSITY

1. Alternatively, Geitonia and Mr Gertos raise a defence of necessity.

Legal principles

1. The availability of the defence of necessity has been recognised in extreme and strictly limited circumstances: Fairall and Yeo, Criminal Defences in Australia (4th ed, 2005, LexisNexis) Chapter 6. The defence has rarely been successful. The jurisprudence in England and Canada was reviewed in In Re A (Children) (Conjoined Twins: Surgical Separation) [2000] 4 All ER 961 (CA) at 1032-1052.
2. The common law defence of necessity excuses what would otherwise be a criminal offence. It is probably correct to say that all statutes creating statutory offences are to be construed as being subject to the common law defence of necessity: R v Loughnan [1981] VR 443 (FC/SC of Vic) at 458 per Crockett J. I will proceed on the assumption that s 76A(1) EPA Act, creating the statutory offence with which the defendants are charged, is to be construed as being subject to the common law defence of necessity.
3. A high bar was set for the defence of necessity in a case of cannibalism on the high seas, The Queen v Dudley and Stephens (1884) 14 QBD 273. Four shipwrecked sailors were adrift in an open boat on the high seas more than one thousand miles from land. One of their number, the cabin boy, was the youngest and eventually became the weakest. After 20 days adrift they had been without food for seven days and without water for five. Dudley and Stephens killed the cabin boy and (with the fourth sailor) ate his flesh and drank his blood. Four days later, a passing ship rescued them in the lowest state of prostration. The two killers were tried for murder. Their defence of necessity was that if they did not kill and feed on one of their number, they would all die of starvation. Delivering the judgment of a court consisting of five judges, Lord Coleridge CJ rejected the defence of necessity, convicted them of murder and sentenced them to death. Acknowledging that the prisoners were subject to "sufferings which might break down the bodily powers of the strongest man, and try the conscience of the best" (at 278), Lord Coleridge intimated that the Crown might exercise the prerogative power of mercy (at 288). This the Crown later did, by commuting the death sentence to six months in prison.
4. In Loughnan, the three elements of the defence of necessity were identified and explained, at 448-449: …there are three elements involved in the defence of necessity. First, the criminal act or acts must have been done only in order to avoid certain consequences which would have inflicted irreparable evil upon the accused or upon others whom he was bound to protect. The limits of this element are at present ill defined and where those limits should lie is a matter of debate. But we need not discuss this element further because the irreparable evil relied upon in the present case was a threat of death and if the law recognizes the defence of necessity in any case it must surely do so where the consequence to be avoided was the death of the accused. We prefer to reserve for consideration if it should arise what other consequence might be sufficient to justify the defence… The other two elements involved…can for convenience be given the labels, immediate peril and proportion, although the expression of what is embodied in those two elements will necessarily vary from one type of situation to another. The element of imminent peril means that the accused must honestly believe on reasonable grounds that he was placed in a situation of imminent peril...all the cases in which a plea of necessity has succeeded are cases which deal with an urgent situation of imminent peril. Thus if there is an interval of time between the threat and its expected execution it will be very rarely if ever that a defence of necessity can succeed. The element of proportion simply means that the acts done to avoid the imminent peril must not be out of proportion to the peril to be avoided. Put in another way, the test is: would a reasonable man in the position of the accused have considered that he had any alternative to doing what he did to avoid the peril?…
5. The judgment of Dickson J in the Supreme Court of Canada in Perka v The Queen (1984) 13 DLR (4th) 1 is instructive. In that case, the accused were drug smugglers. They were charged with importing and possession of narcotics for the purpose of trafficking as a result of their arrest in Canadian waters in possession of a large quantity of marijuana. They sought to rely on the defence of necessity and adduced evidence that the ship carrying the cargo from South America was originally destined for a drop-off point in international waters off Alaska. En route, the ship encountered problems which were aggravated by deteriorating weather. They therefore made for a Canadian bay in order to make temporary repairs. However, the ship ran aground and the captain, fearing that the vessel was going to capsize, ordered the men to off-load the cargo. Police officers arrived a short time later. A jury acquitted them. The Supreme Court of Canada held that there must be a new trial owing to error of law in the trial judge's charge to the jury with respect to the defence of necessity (at 28). Dickson J (Ritchie, Chouinard and Lamer JJ concurring) held, as stated in the headnote at 2: While necessity should be recognised as a defence through s 7(3) of the Criminal Code, it operates as an excuse rather than a justification. As an excuse, necessity rests on a realistic assessment of human weakness, recognising that a liberal and humane criminal law cannot hold people to the strict obedience of laws in emergency situations where normal human instincts, whether of self-preservation or of altruism, overwhelmingly impelled disobedience. The defence must, however, be strictly controlled and scrupulously limited to situations that correspond to its underlying rationale. That rationale is that it is inappropriate to punish acts which are normatively involuntary. There are a number of tests for determining whether the wrongful act was truly the only realistic reaction open to the actor, one of which is the requirement that the situation be urgent and the peril be imminent. At a minimum, the situation must be so emergent and the peril must be so pressing that normal human instincts cry out for action and make a council of patience unreasonable. Another requirement is that compliance with the law be demonstrably impossible. If there is a reasonable legal alternative to disobeying the law then the decision to disobey becomes a voluntary one impelled by some consideration beyond the dictates of necessity and human instincts. One further requirement is of proportionality. The defence cannot excuse the infliction of a greater harm so as to allow the actor to avert a lesser evil. Accordingly, the harm inflicted must be less than the harm sought to be avoided. The defence does not fail merely because the accused were doing something illegal when the necessitous circumstances arose. On the other hand, the accused's fault in bringing about the situation later invoked to excuse his conduct can be relevant to the availability of the defence of necessity. If the necessitous situation was clearly foreseeable to a reasonable observer, if the accused contemplated or ought to have contemplated that his actions would likely give rise to an emergency requiring the breaking of the law, then it is doubtful that whatever confronted the accused was in the relevant sense an emergency. Mere negligence, however, or the simple fact that the accused was engaged in illegal or immoral conduct when the emergency arose, will not disentitle him from relying on the defence of necessity. Where the accused places before the court evidence sufficient to raise an issue that the situation created by external forces was so emergent that failure to act could endanger life or health and that, upon any reasonable view of the facts, compliance with the law was impossible, then the Crown must be prepared to meet that issue and there is no onus of proof on the accused.
6. Perka was followed by the Supreme Court of Canada in R v Latimer [2001] 1 SCR 3 at [26]-[33].
7. Meanwhile, in Rogers v R (1996) 86 A Crim R 542 (CCA/NSW) Gleeson CJ (Clarke JA and Ireland J agreeing) followed Loughnan (at 544) and described the judgment of Dickson J in Perka as an "instructive analysis" (at 545.9-546). In Rogers a prisoner sought to rely on the defence of necessity to excuse his escape from lawful custody to avoid threatened lethal violence. Upholding the trial judge's decision that the evidence did not raise an issue of necessity proper to be left to the jury, Gleeson CJ said, at 546: The corollary of the notion that the defence of necessity exists to meet cases where the circumstances overwhelmingly impel disobedience to the law is that the law cannot leave people free to choose for themselves which laws they will obey, or to construct and apply their own set of values inconsistent with those implicit in the law. Nor can the law encourage juries to exercise a power to dispense with compliance with the law where they consider disobedience to be reasonable, on the ground that the conduct of an accused person serves some value higher than that implicit in the law which is disobeyed.
8. His Honour said, at 547: The relevant concept is of necessity, not expediency, or strong preference. If the prisoner, or the jury, were free to consider and reject possible alternatives on the basis of value judgments different from those made by the law itself, then the rationale of the defence, and the condition of its acceptability as part of a coherent legal system, would be undermined. To adopt the language of Dickson J in Perka, the accused must have been afforded no reasonable opportunity for an alternative course of action which did not involve a breach of the law.
9. Gleeson CJ rejected the view that the element of immediate peril was a technical condition for the existence of the necessity. Instead, he favoured treating this as a factual consideration relevant, and often critically relevant, to the accused person's belief as to the position in which he or she is placed, and as to the reasonableness and proportionality of the response: at 546. He said, at 546: In a case such as the present, where the accused's conduct, otherwise unlawful, is sought to be excused on the basis that it was a response to a threat of death or serious injury to the accused, the first question is whether it was, in truth, such a response. Bearing in mind that, if there be a viable issue of necessity, the Crown bears the onus of negativing necessity, if the jury were to be satisfied beyond reasonable doubt that the attempted escape was for a different reason, that would be the end of the matter.
10. Gleeson CJ observed, at 547: Reasonableness is not designed to allow people to choose for themselves whether to obey the law. As was pointed out above, prisons are dangerous places, at least for some of the prisoners. However, in recognition of this, there are established systems of protection. Taking advantage of these systems is not always attractive to a prisoner. It can involve a degree of isolation, removal of freedoms and privileges available to other prisoners, and other forms of hardship. Then it is known that an offender being sentenced will serve the whole, or a large part, of his or her sentence on protection, a lesser sentence is sometimes imposed on that account alone. A reluctance or, (as will appear is the case with the present appellant), an unwillingness, to go on protection may be understandable, but the principle of necessity is not intended to give prisoners who are threatened a choice between going on protection and removing themselves, permanently or indefinitely, from custody.
11. The analysis in Rogers was unanimously approved by the High Court in Taiapa v The Queen [2009] HCA 53, 240 CLR 95 at [36]-[38].
12. In Mattar v R [2012] NSWCCA 98 at [7] the NSW Court of Criminal Appeal per Harrison J (Beazley JA and McCallum J agreeing) said: The common law defence or excuse of necessity operates in circumstances that bear upon an accused person in such a way as to induce him or her to offend in order to avoid even more dire consequences. The accused bears the evidentiary onus of raising the evidentiary basis of the defence but the Crown bears the legal onus of negativing the defence to the criminal standard: Taiapa v R [2009] HCA 53; (2009) 240 CLR 95. The three elements of the defence are: 1. that the criminal act was done in order to avoid the infliction of irreparable evil on the accused, or others that he or she was bound to protect; 2. that the accused honestly believed on reasonable grounds that he or she was placed in a situation of imminent peril; and 3. that the acts performed to avoid that peril were not disproportionate to the peril to be avoided: R v Loughnan [1981] VR 443 at [448]; R v Rogers (1996) 86 A Crim R 542.
13. As explained in Loughnan and Rogers, the third element means, in other words, that a reasonable man in the position of the defendant would have considered that he had no alternative but to take the action that he took, which involved breaking the law, in order to avoid the peril.
14. Considerations of reasonableness and proportionality go hand in hand: Rogers at 548. The test of proportionality is objective: R v Sood (No 3) [2006] NSWSC 762 at [42] (Simpson J).
15. As noted above at [144], the element of imminent peril is more appropriately regarded not as a technical element or requirement but as a factual consideration relevant, and often critically relevant, to the defendants' belief as to the position in which he or she is placed, and as to the reasonableness and proportionality of the response: Rogers at 546, approved by the High Court in Taiapa at [37]. In the present case, in my opinion, that element is critically relevant.
16. In Bayley v Police (SA) [2007] SASC 411, 178 A Crim R 202 the Full Court of the Supreme Court of South Australia applied Rogers, Loughnan, Perka and Latimer and rejected a defence of necessity in a dangerous driving case.
17. Where the conduct amounts to otherwise unlawful destruction of property, the defence is capable of being raised: Fairall and Yeo, at [6.21]. There is ancient authority that it is not unlawful damage to property to pull a house down in order to prevent the spread of fire to adjacent dwellings: see the authorities cited by Glanville Williams, Criminal Law - The General Part (2nd ed, 1961 Stevens & Sons Ltd) at 725 fn 14. In re F (Mental Patient: Sterilisation) [1990] 2 AC 1 at 74 Lord Goff said in the context of the law of tort: That there exists in the common law a principle of necessity which may justify action which would otherwise be unlawful is not in doubt. But historically the principle has been seen to be restricted to two groups of cases, which have been called cases of public necessity and cases of private necessity. The former occurred when a man interfered with another man's property in the public interest - for example (in the days before we could dial 999 for the fire brigade) the destruction of another man's house to prevent the spread of a catastrophic fire, as indeed occurred in the Great Fire of London in 1666. The latter cases occurred when a man interfered with another's property to save his own person or property from imminent danger - for example, when he entered upon his neighbour's land without his consent, in order to prevent the spread of fire onto his own land.
18. The defendant bears an evidentiary onus to point to some evidence of each of the elements sufficient to raise the defence: Rogers at 547; Fairall and Yeo at 112. In trials on indictment, this would be sufficient evidence to justify leaving the defence to the jury - a question of law: Loughnan at 451. If that onus is discharged, the prosecutor bears the legal onus of negativing the defence beyond reasonable doubt - a question of fact: Rogers at 547; Taiapa at [36]-[39]; Mattar at [7].

Submissions

1. Geitonia and Mr Gertos submit that they have a good defence of necessity because the southern façade was so unsafe that they had to pull it down immediately. In summary, their submissions as to the necessity defence included the following: 1. The necessity defence does not need to be supported by actual evidence given by the accused in circumstances where there is other evidence to support the defence. In this case, there is evidence from Mr Cutuk and John Loukis as to the condition of the southern façade, and out of court statements by Mr Gertos as to his state of mind in his letter to Mr Betts of 20 October 2011 and to Council investigators on 7 November 2011. 2. By inference, it should be found that Mr Cutuk's plans dated 13 October 2011 were prepared following his inspection on 18 October 2011 (I have earlier rejected that proposition). 3. Occupational health and safety aspects are relevant in evaluating the application of the defence of necessity, as touched upon by Mr El Safty. 4. Mr El Safty's view should be accepted that the scaffolding created a detrimental pressure on the façade which deteriorated further its already dilapidated state because it was installed wrongly and not in accordance with the approved plan. 5. Removal of the roof would have an adverse affect on the stability of the southern façade. 6. Actions taken (eg the presence of triangular bracing shown in the approved plans) are consistent with compliance with the terms of the consent, which is a factor to be taken into account on the issue of the reasonableness of a belief. 7. Foong did not give evidence.
2. The prosecutor submits that the defendants have not discharged their evidential onus in relation to any of the elements of the defence; alternatively, that the prosecution has discharged its onus of negativing the defence beyond reasonable doubt.
3. For the reasons that follow, I accept the prosecutor's submission.

Evidence re condition of southern facade

1. The evidence of Mr Cutuk and John Loukis concerning the condition of the southern façade has been addressed, respectively, above at [84]-[86] and [81]. Mr Cutuk's report of 19 October 2011 is of particular significance in relation to whether there was imminent peril at that time. In the report, he said that "as can be observed" in his attached photographs (of 18 October), the façade walls have deteriorated beyond repair; and that although they can be temporarily braced they are not capable of being maintained permanently due to six factors, which he listed. Therefore he had recommended that the façade be removed and reinstated. The report said nothing about danger to the public.
2. Expert engineering evidence was given by Mr Bruce Delprado for the prosecution and Mr Marcus El Safty for Geitonia / Mr Gertos, including as to the issue of imminent peril. Their evidence was based on the photographs taken by Mr Cutuk on 18 October 2011 and on Mr Cutuk's report of 19 October 2011.
3. Where there is disagreement between them, I prefer Mr Delprado's evidence to that of Mr El Safty. I take into account, in combination, Mr Delprado's better observance of the requirements of the expert witness code of conduct; his better identification of the facts upon which he based his opinions and his reasoning process; his more comprehensive addressing of the questions that the experts were asked to address; his better focus upon the issues he was asked to address; on occasions his more professional approach (for example, more than once Mr El Safty used "my luck" as a measure of risk); and his higher qualifications.
4. The evidence of Mr Delprado, which I accept, included the following: 1. the southern façade did not pose an imminent danger to the public. Further, Mr Cutuk's statement that the walls can be temporarily braced implies that Mr Cutuk considered that the walls could be made safe, at least on a temporary basis. 2. While the items of deterioration listed by Mr Cutuk as justifying demolition might have justified demolition from a commercial aspect, all the deterioration depicted in the photographs had developed over a long period of time - likely decades - and would have been observable before the hoarding was erected. All the deterioration could have been remediated by applying standard techniques, which Mr Delprado detailed. 3. Even if the southern façade posed a danger to the public or was likely to become an imminent danger to the public, steps could have been taken to eliminate the danger, which he specified. 4. the structural integrity of the southern façade could not have been impacted by a high wind event. Much of El Safty's competing view as to risk of danger of collapse and harm to people was premised on a high wind event or an earthquake which, in Sydney, carried a risk of no more than 1:500 years. When considering whether it would occur on a particular day - say 20 or 21 October 2011 - the risk would reduce to 1:500 x 365, "a very low" risk. 5. The approved demolition plans aimed to stabilise the front façade by keeping in place the internal perpendicular (north/south) walls (about six metres long) of the front ground floor shops and bracing them so that they became a series of boxes which were stable in their own right. Mr Cutuk's photos taken on 18 October 2011 show that the demolition had not then reached those walls: they, their back (east/west) walls, and their required bracing were all still in place.
5. In relation to the last point, in oral evidence Mr El Safty agreed with Mr Delprado that if these "back" walls to the perpendicular walls (to be retained) were not touched, the façade could have been saved. On that basis, there seems to me to have been a consensus between the experts (although Mr El Safty did not acknowledge it) that at the time Mr Cutuk wrote his 19 October 2011 report, the front façade was stable and not in any imminent danger. In any case, that is my conclusion.
6. However, Mr El Safty raised two qualifications. The first was that he considered that the parapet on top of the southern façade would have been in danger of collapsing in the event of an earthquake or strong winds. Mr Delprado then did more detailed calculations than Mr El Safty concerning the stability of the parapet, which verified that the parapet was stable although Mr Delprado would not wish to keep them in perpetuity. Mr El Safty's reason for not agreeing that therefore there was no imminent danger in relation to the parapet was: "With my luck I'd sign off there is no imminent danger, and the next day one brick falls on somebody's head". I prefer Mr Delprado's more technically and professionally reasoned evidence and conclude that the parapet was stable. If I am in error and the parapet was at risk, then Mr Delprado and Mr El Safty agreed that it would only have been necessary to demolish the parapet. Hence, even on that basis, there was no imminent peril requiring demolition of almost the entire southern façade. Mr El Safty's second qualification was that photograph 7 taken by Mr Cutuk on 18 or 19 October 2011 indicated that the scaffolding had been tied to the façade wall such that it was using the façade to support itself, and that this would have imposed additional loads on the façade. This was a normal way of bracing a scaffolding back to a stable building. I have earlier not accepted his interpretation: above at [70(b)].
7. Mr Delparado acknowledged that when the roof was removed, it would affect the stability of the southern façade and the risk of danger unless other bracing elements were installed. This does not seem to have been a significant consideration as at 18/19 October 2011 when Mr Cutuk carried out an investigation and reported. That is because he did not refer to it in his report or evidence; and John Loukis' evidence indicates that at that time only part of the roof had been removed, apparently more towards the back of the building since that was the direction from which work had progressed, and that as at about 23 October 2011 (when he made an assessment for Global's first progress claim), part of the roof still had not been removed.
8. Mr El Safty referred to the obligation under the Work Health and Safety Act 2011 to ensure the safety of workers and all who might be affected by work done in the workplace. This may be relevant to the proportionality of the defendant's conduct in demolishing the southern façade. I do not regard it as of much significance. As the defendants knew from Mr Cutuk's report, the façade could be temporarily braced.

Application of legal principles

1. In applying the legal principles applicable to the defence of necessity, I propose to proceed on the assumption that the first element's requirement of "evil" would include death or serious injury as a result of being struck by falling bricks, brickwork or masonry from the southern façade, and that the second element's requirement of "peril" would include the potential for that evil to occur.
2. Mr Cutuk's advice in his 19 October 2011 report was that the walls could be temporarily braced. Therefore, if there was any peril it was not imminent for it could be held at least temporarily in abeyance through bracing. The defendants knew or should have known that the option of at least temporary bracing was available that would create an interval of time before any peril might eventuate. "If there is an interval of time between the threat and its expected execution, it will be very rarely if ever that a defence of necessity can succeed": Loughnan at 448. They knew or should have known that in that interval of time a modification application could be made to Council to permit demolition of the southern façade - an application that should have been made before their earlier implementation of their scheme to demolish the southern façade anyway. Such an application would have provided Council with the opportunity to investigate from a structural engineering perspective whether the southern façade could be retained and as to the validity of the views expressed by Mr Cutuk in his report. If the structural engineering investigation had thrown up evidence such as that given by Mr Delprado before me, then Council may well have decided that the southern façade should be retained by adopting standard engineering measures proposed by Mr Delprado, and declined to allow the modification. On the other hand, if Council had granted the modification, then the defendants could have lawfully proceeded to demolish the southern façade.
3. Instead, the defendants proceeded with the implementation of their pre-existing plan to demolish the southern façade contrary to the clear terms of the development consent. Notwithstanding unsuccessful earlier attempts in 2011 to obtain Council modification approval and construction certificate approval of plans not indicating retention of the southern façade, the defendants' intention to nevertheless demolish the southern façade was communicated to the demolisher during contractual negotiations in late September 2011 and was the subject of the coffee house demolition agreement in the week of 3 October 2011, well before the supposed identification of any peril by Mr Cutuk in his report of 19 October 2011. This is not a case where the defendants, as a matter of practical reality, had no choice but to break the law. They were already committed to breaking the law.
4. If it be assumed that there was an imminent peril (contrary to my opinion), I do not accept that the defendants' demolition of the southern façade was in response to it. They were already committed to demolishing it for a different reason. It was a commercial reason of saving costs, which Foong had communicated to John Loukis during contractual negotiations in late September 2011 and which led to the coffee shop demolition agreement in early October 2011. This commercial reason was observed by Mr Delprado.
5. In addition, I do not accept that the defendants have discharged their evidential onus as to honestly believing that there was an imminent peril. Geitonia and Mr Gertos submit that it is evidenced by Mr Gertos' out of Court statements in his letter of 20 October 2011 to Mr Betts and to Council investigators on or about 7 November 2011: above at [89], [96]. Neither dealt explicitly with Mr Gertos' belief that there was a peril, as distinct from alleged safety advice from an engineer. If it be assumed that they do so implicitly, I cannot see that they evidence his belief that any peril was imminent because he knew that Mr Cutuk had advised that there could be temporary bracing. Finally, in my view, it is difficult for Mr Gertos to discharge his evidential onus of honestly believing there was an imminent peril without giving evidence of his belief. An analogy may be drawn with honest and reasonable mistake of fact. It is difficult for a defendant to discharge his evidential onus of an honest and reasonable mistake of fact without having given evidence of his belief. Thus, in a charge of unlawful sexual intercourse with an under age person, evidence of an out of court assertion by the defendant to investigating police that the complainant had told him that she was over age was held to be insufficient to enliven the defence of honest and reasonable mistake of fact: CTM v The Queen [2008] HCA 25, 236 CLR 440 at [37]-[39], [194].
6. Further, in my view, the defendants were at fault in bringing about any such peril. They did not conform to the requirements to ensure the structural stability of the southern façade and side walls laid down in the demolition plans the subject of the construction certificate and Mr Cutuk's Demolition Management, Procedure and Sequence Plan of August 2010 (in Annexure 2 to the construction certificate). As analysed in Mr Delprado's report, the details of those approved demolition plans provided not just for the retention of the southern façade but also the measures by which that was to be achieved during the demolition and excavation process. All this was set at nought when Global was instructed, and contracted with, to demolish the southern façade and to remove, as it did (and as Mr Delprado observed), supporting elements contemplated by those measures including joists, steel supporting beams running parallel to the façade, steel braces between those beams, and part of north/south internal walls supporting the façade. In that August 2010 plan, Mr Cutuk provided for the internal structure to be demolished only once the side and front walls had been tied into the new structure and for demolition by small excavators and by hand. In contrast, under instructions from GRC and pursuant to the GRC/Global oral agreement forged by Mr Gertos and then their written contract, Global removed both the internal existing structure which supported the southern façade and the elements which tied them into the façade, and generally used heavy demolition machinery.

Conclusion as to defence of necessity

1. I conclude that the defendants have failed to discharge their evidential onus to raise a defence of necessity. Alternatively, if they have, I conclude that the prosecution has discharged its onus of negativing the defence beyond reasonable doubt.

ORDER

1. The order of the Court is that each defendant is convicted as charged. The exhibits and documents marked for identification may be returned.

Amendments 13 April 2015 - Slip rule amendment [172] - change "verdict" to "order" and "guilty" to "convicted" (and consequential amendments to table of contents and cover page). 11 May 2015 - By consent amendment to typographical error in [112] - change "GRC" to "Mr Gertos". DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 11 May 2015