Minister administering the Ports Corporatisation and Waterways Management Act 1995 v Hakim

Minister administering the Ports Corporatisation and Waterways Management Act 1995 v Hakim - [2005] NSWLEC 92 - NSWLEC 2005 case summary — Zoe

[34]

29 Mr Rougellis' affidavit establishes that Waterways received a referral from the Council on 22 July 2003 in respect of the second D/A and that on the same day Waterways received a letter in relation to the second D/A requesting referral of the proposed development to Waterways' Foreshores Committee pursuant to State Regional Environmental Plan 22. Seawalls and reclamations are listed as types of development requiring referral to the Foreshores Committee under Schedule 6 of such plan. Ms Rougellis deposed that on 1 September 2003 members of the Foreshores Committee inspected the site and took photographs. On 5 September 2003 the committee met to consider the application and decided to recommend to Council that the application be refused. On 8 September 2003 Waterways advised the Council that a Pt 3A permit would not be issued in respect of the second D/A. Gary Noble 30 Mr Noble is a property and development officer in the employ of the prosecutor. On 26 November 2003 Mr Noble took photographs of the site from Parramatta River and observed that an excavator was working on the site. He noticed that some of the excavated material consisting mainly of rock had been placed close to the sandstone cliff which he recalled had been previously screened by trees and other vegetation. The photographs of his site visit are attached to his affidavit. Frederick James Eckford 31 Mr Eckford is a survey officer employed by the prosecutor. One of his duties is to assist in the making of hydrographic surveys of the waterways of New South Wales. Whilst undertaking a survey on 5 February 2004 he was requested to attend the site. He observed an excavator on the site and a partially damaged foreshore. He observed white vertical marks on the remaining cliff face from the waterway and took photographs of the site. Mr Eckford observed large rocks at the foot of the cliff that appeared to have recently fallen away and which had tumbled into the waterway. Some rocks had apparently fallen on the jetty structures which had been severely damaged. 32 On 17 February 2004 Mr Eckford returned to the site. It had a different appearance to when he had last seen it on 5 February 2004. He considered that it appeared as if the excavator had pushed more material over the cliff edge and caused further collapses to occur. He noticed bundled bricks on pallets had been placed around the site and a boom had been placed around the damaged jetty. He also observed that further cliff collapses had occurred resulting in more rocks having fallen. Photographs were taken of the site on this occasion which were tendered in evidence. Mr Eckford says that the photographs show the difference in appearance as he recalled it. Geoffrey Terence Smith 33 Mr Smith is employed by the prosecutor as the Property Development Co-ordinator. Mr Smith had been Secretary of the Foreshores Committee of Waterways since 1 August 2000 and had been involved in the preparation of the relevant files for the development applications relating to the site. He had inspected the site on 1 September 2003 as part of the Foreshores Committee's consideration of the defendant's second D/A. He recalled that the foreshore at the site was largely in its natural state comprising a section of natural cliff line shaded by a screen of vegetation including casuarina trees. He observed a jetty, ramp and pontoon abutting the site. Mr Smith together with other officers landed via the pontoon and jetty to examine the vegetation on the site. 34 On 12 January 2004 Mr Smith again viewed the site from the river as part of a further Foreshores Committee inspection. He noticed that the site including the cliff top nearest the foreshore had changed significantly since his previous inspection. Mr Smith saw a large excavator on site with a substantial quantity of excavated rock beneath the machine and seaward of the excavator. Hardly any vegetation was visible on the foreshore and some of the rocks had rolled over the top ledge and onto the foreshore. The overhanging cliff at the site was clearly visible and beneath the cliff he saw several tree stumps where trees had been removed. Brendan Dowd 35 Mr Dowd is an environmental scientist consulting to the prosecutor. Mr Dowd was involved in preparing assessments for the development proposals for the site since approximately January 2003. He visited the site on 1 September 2003 as part of the assessment process for the second D/A. Mr Dowd observed the site was in a natural state on that occasion with several mature native plant species indigenous to the area growing along the rock shelf which is located at the foot of a large sandstone cliff face. He took photographs at the site. 36 On the morning of 3 February 2004 Mr Dowd telephoned the defendant and suggested there had been excavation on the site which required a Pt 3A permit from Waterways. The defendant responded that he did not know that a permit was required and that he had a construction certificate to commence works. Mr Dowd deposed that he then informed the defendant that he must not undertake works until he held a Pt 3A permit. Following the conversation Mr Dowd prepared the Waterways stop work order under s 22D of the Act and arranged for it to be posted to the residential address of the defendant. 37 On 5 February 2004 Mr Dowd received a message that the defendant had attempted to reach him by telephone. Mr Dowd returned the defendant's telephone call at approximately 1 pm on that day. In the ensuing conversation the defendant told him that there had been an accident and the cliff face had collapsed onto the foreshore damaging the jetty. Mr Dowd reminded the defendant that the Waterways stop work order was still in force. He then arranged for a Compliance Officer to attend at the site. Maryanne Campanelli 38 Ms Campanelli is an Environmental Assessments Officer employed by the prosecutor. On 6 February 2004 at about 11.30 am she travelled with Ms Harris of Waterways in a vessel to the site. Ms Campanelli had previously visited the site on an inspection on 1 September 2003. She recalled that at the time of her first inspection, the site, when viewed from the waterway, appeared largely natural having a sandstone cliff face shaded by vegetation. A jetty, ramp and pontoon structure had been constructed. On 6 February 2004 Ms Campanelli observed that the site appeared very different. She saw an excavator moving rocks and soil from a part of the site close to the river, near and below the line of natural cliff face visible on the left hand side of the site (when viewed from the river). The excavator was reaching down for rocks and material close to the waterway and dumping it slightly higher up on the site. Ms Campanelli observed that this was repeated numerous times. She took photographs which were tendered in evidence. Eri Leong 39 Ms Leong is a solicitor for the prosecutor. Her affidavit of 20 July 2004 attaches a copy of the Waterways stop work order issued pursuant to s 22D of the Act. On the afternoon of 6 February 2004 in the presence of two officers of Waterways namely Ms Harris and Anthony Morrison, General Counsel, Ms Leong telephoned the defendant. The following conversation ensued:- Me: Hi, is that Mr Hakim?

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91 On his visits the defendant saw Mr Goumis working on the site initially demolishing the existing house and then excavating the site. The excavator was being operated by a person who the defendant now knows as "Andrew" of Andrew's Hire, otherwise known as Mr Georgacopoulos. The defendant said he did not engage him and that Mr Georgacopoulos was never introduced to him. The defendant said he never spoke to Mr Georgacopoulos. 92 The defendant testified that in 2003 no instructions were ever given by the defendant to Mr Constantinidis concerning the carrying out of the works. He said that at the end of 2003 he believed all work was being carried out in accordance with Council approved plans. 93 The defendant testified that he had not spoken to anyone about the rock ledge (the subject of Mr Tsougranis' report) before 24 October 2003 but that Mr Constantinidis had told the defendant that the rock was cracked and dangerous and that an expert report was required. The defendant said he had never met Mr Tsougranis and prior to the receipt of the report had never spoken to Mr Tsougranis. The defendant said he received the report through the mail and sent it to Mr Constantinidis. The defendant said he provided a copy of the report to his solicitor with instructions to draft a letter to the Council. Mr Tsougranis' report was subsequently forwarded by letter signed by the defendant dated 27 October 2003. At this time the defendant was making an application for development consent in respect of the construction of the seawall. 94 On 21 January 2004 the Department of Fair Trading issued the defendant with an owner builder permit. The defendant said that Mr Constantinidis asked him to obtain the permit because of Mr Constantinidis' difficulty in securing home owner's insurance. The defendant said that he went to the site on 4 February 2004 and saw concrete being poured for the house slab. An engineer was present known as "Luke". The defendant remained there for two or three hours during which three-quarters of the slab was poured. 95 The defendant said that on 5 February 2004 at about 1 pm Mr Goumis rang him to tell him of the collapse of rocks onto the jetty and the sewer pipe. The defendant said he tried unsuccessfully to contact Mr Constantinidis and rang Council to report it. The defendant said he was told to contact Waterways. The defendant said he rang Waterways and was told it was a Council matter. The defendant said he then telephoned his solicitor who recommended that the defendant report the matter to Sydney Water. The defendant did so. 96 The defendant said that Sydney Water informed him that an emergency team would be present within an hour. Following such advice the defendant telephoned his solicitor. She suggested that he notify the Council in writing. The defendant said he requested her to draft such a letter which he signed and sent to Council. The letter was tendered as Exhibit B. The defendant testified that this letter is inaccurate. Contrary to the words "I have instructed my contractor to begin removing the rock …" as stated in the letter, the defendant said that he never gave any instructions to his subcontractors, nor instructed his solicitor to write such words. 97 The defendant testified that he went to the site between 3 pm and 4 pm on 5 February 2004 and saw Mr Goumis and the rockfall. The defendant said he asked Mr Goumis if he had spoken to Mr Constantinidis. The defendant testified that Mr Goumis told him that he had spoken to Mr Constantinidis who was on his way to the site. At about 5 pm two Sydney Water employees inspected the site. The defendant said that the rockfall covered the pipe and that there was a brown sediment around the pipe which the defendant said was consistent with a leak. 98 A temporary bypass was constructed with a rubber tube from one manhole to another by the Sydney Water employees. The defendant testified that one of the Sydney Water employees said to him that the rocks would need to be removed to enable an inspection of the pipe, and that the temporary bypass would remain until the rocks were removed. The defendant said that the Sydney Water employees told him that the pipe may be leaking into the river and that they would return the next morning. They requested notification when the rocks had been removed and said that the Environmental Protection Authority might need to be involved. 99 The defendant said he then spoke to Mr Goumis and told him of such conversation. Mr Goumis said the excavator would need to make a ramp so that the rocks could be removed from the sewer. The defendant left the site at 6 pm. 100 That evening the defendant said he received the Waterways stop work order at about 7:30 pm to 8 pm. Having read it he did nothing about it except it leave it in his file, and took it to work with him next day. 101 The defendant said that on the following day (6 February 2004) he went to his office. The defendant testified that he tried to contact Mr Constantinidis by telephone and being unsuccessful he forwarded the Waterways stop work order by facsimile to Mr Constantinidis' office and also to his solicitor. He attempted to speak to Council at about 8:30 am. The defendant said that no person could assist him at that time. 102 The defendant said he went to site and arrived at 9:30 am where he saw Mr Goumis and Mr Georgacopoulos creating a ramp by placing rocks in front of the excavator. They were also excavating rock from the remaining cliff face. Mr Goumis was standing giving directions to the plant operator. 103 The defendant said that he told Mr Goumis that he had received the Waterways stop work order. The defendant said that Mr Goumis replied:- "I'd spoken to Al last night and he gave me instructions to do exactly what the Water Board [Sydney Water] had told him to do"

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106 The defendant testified that he never saw anyone come to the site from Waterways. He said he later received a phone call from Mr Constantinidis to say that he had stopped work on site and was following up with the Council and with Waterways. 107 The defendant received invoices from Andrew's Hire addressed to the defendant's company (Exhibit K). The defendant said that these invoices were returned to Andrew's Hire because he considered that the responsibility to pay such accounts rested with Mr Constantinidis. A note was written on the invoices to the defendant's secretary which directed her not to pay the invoices and to call Mr Georgacopoulos to tell him to direct the invoices to Mr Constantinidis (Exhibit 7). 108 The defendant testified that Ms Leong's affidavit of 20 July 2004 did not contain the full extent of the conversation held on 6 February 2004. The defendant said that he told Ms Leong that she should talk to his builder (Mr Constantinidis) and his solicitor and that he gave the name and telephone number of each to Ms Leong. 109 In cross-examination the defendant agreed that he prepared the first D/A, made payment by cheque of the application fee to Waterways and knew that Waterways were involved in the development of the site. The defendant agreed that he received the development consent in respect of the first D/A. He said he knew there were some conditions attached to the consent for the first D/A. He said he collected the envelope in which the consent was contained and gave it directly to Mr Constantinidis without looking at the contents. 110 The defendant denied that he knew that Council had issued the Council stop work order because of the failure to obtain a construction certificate. He said that he was not aware of any correspondence regarding the lack of a construction certificate between himself and the Council. He denied applying for a building certificate and said that Mr Constantinidis had prepared an application which he had signed. He acknowledged that he had signed the application for a building certificate but said that he did not know its purpose. Later in his evidence he corrected his testimony and said that it was in fact Mr Gearin of Inspec, the private certifier, who had completed the building certificate application which the Hakims had signed. 111 The defendant said he did not receive the Council stop work order issued on 29 December 2003.

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126 Mr Constantinidis testified that the removal of trees, the demolition of the existing house and excavation took place on the site from October to December 2003. 127 Mr Constantinidis said he did not specifically discuss with the defendant the need for a Pt 3A permit although he said he may have mentioned to the defendant in passing that an application for such permit had been made. Mr Constantinidis said he did not recall telling the defendant that he did not have a Pt 3A permit while work was proceeding. 128 In about Christmas 2003 Mr Constantinidis said he encountered difficulties obtaining home building insurance. He testified that the cost of insurance was prohibitive as he was not a specialist home builder. Mr Constantinidis suggested to the defendant that he should obtain an owner builder permit to circumvent this difficulty. 129 In the evening of 5 February 2004 Mr Constantinidis became aware of the rockfall on the site when he telephoned Mr Goumis in response to a message left on his phone. Mr Constantinidis said that Mr Goumis told him that the sewer had been damaged. Mr Constantinidis said that he asked for more details and enquired whether the existing equipment could remove rocks from the sewer as instructed by Sydney Water. Mr Constantinidis said that Mr Goumis replied that this could be done if the excavator went down the right-hand side of the property. Mr Constantinidis said he then instructed Mr Goumis to comply with Sydney Water's direction. 130 Mr Constantinidis said that to his knowledge and in his opinion the cliff face had not been levered away. Mr Constantinidis said he never gave any instructions to Mr Goumis to work on the rock ledge. It had been agreed with the defendant that the rock ledge would stay and be merged into the design of the pool and seawall, which was being separately organised. Mr Constantinidis said that he believed the rockfall was the result of the vibrations from the excavator destabilising the rock and the movement of rocks on the site. 131 Mr Constantinidis said he thought it was on the night of 5 February 2004 that he first became aware of the Waterways stop work order.

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