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

Environmental Planning and Assessment Act 1979 s 78A, s 91, s109D, s 121B, s 149B LEGISLATION CITED: Evidence Act 1995 s 141(2) Rivers and Foreshores Improvement Act 1948 Pt 3A, s 22A, s 22B(1), (2), (3)(a), s 22C, s 22D(1), (2), (5)(b), s 22I

Alphacell Ltd v Woodward [1972] AC 824; Caralis and Ors v Smyth (1988) 65 LGRA 303; Caruso v Boucher (1975) 10 SASR 71; Corporation of the City of Adelaide v Australasian Performing Right Association Limited (1928) 40 CLR 481; DeKuyper v Crafter [1942] SASR 238; Emary v Nolloth [1903] 2 KB 264; Environment Agency (formerly National Rivers Authority) v Empress Car Co (Abertillery) Ltd [1999] 2 AC 22; Environment Protection Authority v McConnell Dowell Constructors (Aust) Pty Ltd (2003) 128 LGERA 240; Environment Protection Authority v Multiplex Constructions Pty Ltd (2000) 112 LGERA 1; Environment Protection Authority v Munters Pty Ltd (1998) 98 LGERA 279; CASES CITED: Environment Protection Authority v Snowy Mountains Engineering Corporation Ltd (1994) 83 LGERA 51; Environment Protection Authority v Taylor Woodrow (Australia) Pty Limited (1997) 101 LGERA 226; Gilbert v Gulliver [1918] VLR 185; Griffin v Marsh (1994) 34 NSWLR 104; He Kaw Teh v The Queen (1985) 157 CLR 523; Hornsby Shire Council v Surace [2004] NSWLEC 216; Owen v Willtara Construction Pty Ltd (1998) 103 LGERA 137; R v Wampfler (1987) 11 NSWLR 541; Sherras v De Rutzen [1895] 1 QB 918; Tiger Nominees Pty Ltd and Anor v State Pollution Control Commission (1992) 25 NSWLR 715; Waugh v Kippen (1986) 160 CLR 156

DATES OF HEARING: 31/01/2005, 01/02/2005, 02/02/2005, 04/02/2005, 07/02/2005, 08/02/2005, 09/02/2005, 10/02/2005

PROSECUTOR I Hemmings (Barrister) SOLICITORS Baker & McKenzie LEGAL REPRESENTATIVES: DEFENDANT P Tomasetti (Barrister) SOLICITORS Storey and Gough

THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

MINISTER ADMINISTERING THE PORTS CORPORATISATION AND WATERWAYS MANAGEMENT ACT 1995 Prosecutor

1 Cowdroy J: The prosecutor charges that the defendant committed an offence against s 22B(2) of the Rivers and Foreshores Improvement Act 1948 ("the Act") by making an excavation for which a permit was required without obtaining that permit contrary to s 22B(1). The offence is alleged to have occurred between 1 October 2003 and 7 February 2004. This charge is the subject of proceedings No 50057 of 2004. 2 Section 22B of the Act relevantly provides:- (1) A person must not:

a) make an excavation on, in or under protected land, ... unless the person is either authorised to do so by a permit under this Part and does so in accordance with any conditions to which the permit is subject, or is authorised to do so by the regulations. (2) A person who contravenes subsection (1) is guilty of an offence and is liable:

… (b) in the case of an individual - to a penalty not exceeding 600 penalty units and, in the case of a continuing offence, to a further penalty not exceeding 300 penalty units for each day the offence continues. (3) It is a defence to any proceedings against a person in respect of a contravention of subsection (1) for the person to establish: (a) that the commission of the offence was due to causes over which the person had no control and that the person took reasonable precautions and exercised due diligence to prevent the commission of the offence; or … 3 The words "make an excavation" are defined in s 22A of the Act as follows:- "make an excavation" includes cause or allow an excavation to be made. "Protected land" is also defined in s 22A of the Act as follows:-

(a) land that is the bank, shore or bed of protected waters, or

(b) land that is not more than 40 metres from the top of the bank or shore of protected waters (measured horizontally from the top of the bank or shore), or

(c) material at any time deposited, naturally or otherwise and whether or not in layers, on or under land referred to in paragraph (a) or (b). "Protected waters" is defined as follows:- "protected waters" means a river, lake into or from which a river flows, coastal lake or lagoon (including any permanent or temporary channel between a coastal lake or lagoon and the sea). Charge 50058 of 2004 4 The prosecutor also charges that defendant committed an offence against s 22D(5) of the Act because he failed to comply with a stop work order contrary to s 22D(1) of the Act. The offence is alleged to have occurred between 3 February 2004 and 7 February 2004. This charge is the subject of proceedings No 50058 of 2004. 5 Section 22D of the Act relevantly provides:- (1) If the Constructing Authority is satisfied that a person is contravening, or is about to contravene, section 22B, the Constructing Authority may, by written notice given to the person, order the person not to engage in that activity.

(2) The order takes effect immediately or from a later time specified in the notice and is subject to such conditions as the Constructing Authority may specify in the order. … (5) A person who does not comply with an order in force under this section is guilty of an offence and is liable: … (b) in the case of an individual - to a penalty not exceeding 600 penalty units and, in the case of a continuing offence, to a further penalty not exceeding 300 penalty units for each day the offence continues. 6 Proceedings Nos 50057 and 50058 of 2004 have been heard together. The defendant has pleaded not guilty to each charge. Facts 7 The defendant and his wife, Mrs Yvonne Hakim ("the Hakims") are the owner of land known as 10 Fortescue Street Chiswick being lot 115 of Deposited Plan 1111 ("the site"). The site has rear boundary to the Parramatta River ("the river") comprising a rock cliff face. The site slopes unevenly from the street frontage to the river frontage. Prior to November 2002 the site was roughly terraced with sandstone outcrops and a single storey dwelling existed on the site. 8 By Development Application number 915/02 dated 3 December 2002 ("the first D/A") made pursuant to s 78A of the Environmental Planning and Assessment Act 1979 ("the EP&A Act") the Hakims sought consent from the City of Canada Bay Council ("the Council") to demolish the existing dwelling and to erect a two-storey dwelling house on the site.

9 Although the first D/A did not involve any development on the river frontage the plans showed an excavation for a concrete slab for the proposed dwelling. A substantial portion of such slab lay within 40 m of the top of the bank of the river. Such portion of the slab was located on "protected land" as defined in the Act. 10 Section 22C of Pt 3A of the Act makes provision for the issue of a permit by the Waterways Authority (otherwise known as Waterways) to enable an excavation to be made on "protected land" as defined in Pt 3A. Since a permit was required in addition to consent of the Council, the development constituted integrated development as defined in s 91 of the EP&A Act. The Council therefore referred the first D/A to Waterways.

11 By letter dated 4 March 2003 Waterways advised the Council that such a permit would be issued subject to special conditions as set out in its letter. It also advised that a separate application for a Pt 3A permit would be necessary before any physical works commenced on the site.

12 By letter dated 12 May 2003 ("the consent") the Council notified the Hakims that the first D/A had been approved by the Council subject to conditions. Condition 6 of the consent provided:-

6. Waterways Requirements a) No works are to commence at the site prior to a Part 3A Permit under the Rivers and Foreshores Improvement Act, 1984, being issued by the Waterways authority.

Numerous conditions numbered b) to k) specified further Waterways requirements. 13 By Development Application 423/03 ("the second D/A") made on or about 18 June 2003 the Hakims sought development consent from the Council for a seawall on the river frontage of the site. Plans accompanying the second D/A show a rock ledge overhanging proposed access steps and the site of the proposed seawall and infill between the seawall and the cliff face. The accompanying statement of environmental effects stated that the purpose of the development was to allow access to the existing jetty. The following statement under "Site Characteristics" provides:- There is an overhanging sandstone ledge along two thirds of this waterfront. That rock is weathered and fractured to the point of possibly being danger to anyone moving under it. The foreshore was described as a:-

jumble of rocks with a Sydney Water sewer line cut through the rock shelf for the full width of the frontage and extending both north and south.

Since the second D/A was also one for integrated development, the Council referred it to Waterways. 14 By letter dated 8 September 2003 Waterways informed the Council that a Pt 3A permit would not be issued for the proposed development. The reasons for refusal related to the destruction of natural habitat values and prevention of tidal movements. It also noted that the statement of environmental effects failed to address comprehensively the potential harm to the natural intertidal rock platform.

15 The second D/A was refused by the Council. Despite this refusal, the Hakims again sought development consent for the same seawall by application for development to the Council number 847/03 dated 26 November 2003 ("the third D/A"). The statement of environmental effects accompanying the third D/A is virtually identical to the previous statement of environmental effects. Plans accompanying this proposal show more extensive development than the second D/A. They show a pool terrace, swimming pool and stairs leading down through a rock area at the cliff face. The following notation is shown:- existing cracked unstable rock overhang removed. 16 By letter dated 27 October 2003 the defendant forwarded to Council a report of Luke Tsougranis & Associates Pty Limited, consulting structural and civil engineers, dated 24 October 2003. The report related to the stability of large rocks at the cliff face and especially of a substantial crack for the full length of the overhanging rock at the cliff face. The report concluded that the rock could collapse at any time without warning.

17 By letter dated 30 October 2003 the Council wrote to the Hakims informing them inter alia as follows: Further, the proposed works constitute Integrated Development and are required to be referred to the Waterways Authority and the Foreshores and Waterways Planning and Development Advisory Committee.

On 27 January 2004 the Council's Development Assessment Planner Mr Daniel West forwarded such report to Waterways.

18 The existing house on the site was demolished and excavation commenced on protected land in October 2003 in the absence of both a Pt 3A permit and a certificate pursuant to s 109D of the EP&A Act ("the construction certificate") required by the conditions of the consent. Accordingly such work was carried out in breach of the consent.

19 On 29 December 2003 the Council issued a Notice of Demand to Stop Work ("Council stop work order") on the ground that construction had commenced without the issue of a construction certificate. On 14 January 2004 the Council issued to the Hakims a Notice of Proposed Order under s 121B of the EP&A Act. The proposed order foreshadowed demolition of all works carried out without the benefit of a construction certificate and, inter alia, sought submission of a Pt 3A permit under the Act.

20 On 3 February 2004 Waterways issued a stop work order ("Waterways stop work order") pursuant to s 22D(1) of the Act. The Waterways stop work order provided details of the Waterways officer who might be contacted as follows: Should you have any questions regarding this matter please contact Brendan Dowd on telephone 9364 2371 .

21 The Waterways stop work order was received by the defendant on 5 February 2004. On that day a portion of the cliff face was found in the river. On 6 February 2004 further excavation occurred at the site on protected land. Part of such excavation comprised the removal of the cliff face to make a ramp down to the river for the alleged purpose of enabling the excavator to remove rocks which had fallen on Sydney Water's sewer line. Work ceased on 6 February 2004.

Prosecutor's Evidence Michael Egan 22 Mr Egan resides at 12 Fortescue Street Chiswick which adjoins the site. In October 2003 he observed the existing house being demolished and the commencement of excavation by means of an excavator with large jackhammer. Before Christmas 2003 Mr Egan noticed that excavations for the new residence were complete and that the excavator was moved to the seaward side of the site in the vicinity of the proposed swimming pool. The excavator placed large floaters together to construct a two metre high wall between the residence and the cliff face. Work then ceased until approximately 3 February 2004 when the concrete slab was poured. 23 On 5 February 2004 Mr Egan noticed a significant change to the foreshore area of the site. He observed that the jetty had been destroyed and that a jumble of large rocks had fallen on it and on the surrounding foreshore. The overhanging cliff face which had previously existed was partly missing. Mr Egan observed that the remaining cliff had a vertical wall facing the waterway with white vertical streaks near the top which he thought had been caused by a jackhammer. Various photographs were taken of the site which illustrate the works. Lindy Jane Egan 24 Mrs Egan heard a jackhammer operating on the site at about 9 am on 6 February 2004. She observed work being done on the site and took photographs of the works. She identified the defendant on the site and took photographs whilst doing so. The defendant started to throw rocks in her direction and yelled out to her:- "Haven't you got anything better to do, you slut?".

25 The photographs taken by Mrs Egan show the excavator apparently using a jackhammer on the rock which comprised part of the cliff face. The sequence of photographs shows dust rising from the rock surface next to equipment attached to the excavator (see photograph 4 of Annexure A to her affidavit). Photograph 5 shows the void remaining after the rock ledge was broken off. 26 In cross-examination Mrs Egan testified that the cliff face existed on the morning of 5 February 2004 but when she went to water her garden on the evening of 5 February 2004 she noticed that a large rock had fallen from the cliff face. Mrs Egan was adamant that the defendant threw two rocks in her direction when she was taking photographs, one of which fell short. The other was thrown at her requiring her to move to avoid being struck. The rock was tendered in evidence. Antonino Giunta 27 Mr Giunta lives at 3 Fortescue Street Chiswick which lies directly opposite the site. Mr Giunta's evidence confirms that excavation on the site occurred throughout October, November and December 2003 and that a concrete slab was poured on the site thereafter. Persephone Rougellis 28 Ms Rougellis is the Manager, Property Planning, of the prosecutor. Her affidavit establishes the ownership of the site, describes its topography as recorded by Waterways, and attaches aerial photographs. Such affidavit refers to the first D/A and to the fact that works within 40 m of Mean High Water Mark ("MHWM") required a permit to be issued under Pt 3A of the Act. Her evidence confirms that no Pt 3A permit had been issued for any work at the site.

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?

Me: My name's Eri Leong. I'm a solicitor for the Waterways Authority and I'm calling because of what's happened at 10 Fortescue Street. I'm here with Mr Morrison and Ms Harris from the Authority. Any works you do on the property need a Part 3A permit from the Authority under the Rivers and Foreshores Improvement Act. It's a condition of your development consent and also required by the law. The Waterways Authority sent you a stop order on Tuesday asking you not to do work on the site.

Him: Yeah, I got that last night. I'm not carrying out any works.

Me: Can you provide me with an undertaking that you won't be doing any works on site? Him: Yes sure, I'm not doing any works.

Ms Leong was not cross-examined concerning the content of this conversation.

40 In cross-examination Ms Leong testified that she prepared statutory notices issued under s 22I of the Act ("the Statutory Notices"). The Statutory Notices were addressed to two persons who had been working at the site namely Mr Dennis Goumis and Mr Andreas Georgacopoulos.

41 Ms Leong said it was her understanding that a large rock had fallen onto a Sydney Water sewer pipe at the site on 6 February 2004 but she was not aware of any resultant damage. She had read a report that the sewer pipe was inspected and tested. She said that it was her understanding from Mr Georgacopoulos' replies to the Statutory Notice addressed to him that he was present on site on 6 February 2004 to remove the fallen rock and that he needed to make a ramp to remove rock so that Sydney Water could inspect the pipe. His answers stated that he was almost finished that task on 7 February 2004 when he was stopped by Waterways.

42 In the course of her inquiries Ms Leong tried to speak to by telephone to both Mr Georgacopoulos and Mr Goumis but she experienced difficulties in doing so. Attempts to make an appointment to see Mr Georgacopoulos were unsuccessful.

43 Mr Morrison is a solicitor in the employ of Waterways. He deposed that he was present with Ms Leong whilst she made her telephone call to the defendant on 6 February 2004. He confirmed the text of the conversation as deposed to by Ms Leong which he heard over the speaker phone. He said:- The remainder of the conversation related to the nature of the incident at 10 Fortescue Street, Chiswick ("the site") and the need to contact Mr Hakim's legal representative for a written undertaking not to carry out works on the site. Mr Morrison was not cross-examined.

Suzanne Harris 44 Ms Harris is an environmental scientist employed by the prosecutor. On the morning of 6 February 2004 Ms Harris went to the site and observed it from the river. Ms Harris said that the site was virtually clear of significant vegetation and improvements. On closer inspection from the river she saw a substantial amount of rock, rubble and other loose material forming a slope towards the foreshore of the site. Some large rocks were in the river which appeared to have fallen on a jetty, ramp and pontoon structure. The remaining sandstone cliff was visible on either side of the slope of rocks and rubble. An excavator was operating at the site at the top of the rubble slope and the bucket of the excavator was being used to remove material higher up the slope. Ms Harris observed that water at the base of the slope was discoloured and turbid. She took photographs of the site and the water which have been tendered in evidence. 45 Ms Harris deposed that she was present with Ms Leong and Mr Morrison when a telephone call was made from Ms Leong's office to the defendant. She heard the conversation between Ms Leong and the defendant since the phone was placed on speaker setting. She did not recall the exact words but remembered the defendant identified himself and acknowledged that he had received a "stop order letter" from Waterways on the preceding night. Ms Harris was not cross-examined.

John Alfred Ireland 46 Mr Ireland is the Survey Manager for the prosecutor and is a registered surveyor under the Surveying Act 2002. Mr Ireland swore an affidavit on 27 July 2004 which annexes a survey plan which shows the distance of 40 m from MHWM on the site. He also surveyed the location of the concrete slab and of a large boulder which had fallen from the site onto the intertidal rock shelf. 47 Mr Ireland's survey plan establishes that a substantial portion of the slab lay within 40 m of MHWM and therefore was on "protected land". Additionally it establishes that the excavation near the cliff face lay within the 40 m limit. 48 Mr Ireland swore a further affidavit on 5 October 2004 which records his visit to the site on 29 July 2004. On this occasion he supervised a new survey of the site and prepared survey plan number C38 dated 30 September 2004. Such plan shows a slope from the bottom of the bank up to the top bank. He also prepared a profile plan of the site known as Plan C38A dated 30 September 2004. Such plan shows the original profile of the site in green compared with the current profile in red. Such plan illustrates the alteration to the levels of the site from the street frontage to the river. Graham John Hall 49 Mr Hall is a surveyor employed by Craig and Rhodes Surveyors Engineers and Planners. He is a surveyor registered under the Surveying Act 2002 and he is been registered as a surveyor since 1977.

50 On 27 August 2001 Mr Hall received instructions from Metro D Architects to carry out a detailed survey of the site. Such survey (also known as a topographic survey) was prepared for the purposes of submitting a development application in relation to the site.

51 On 21 February 2003 the defendant instructed Mr Hall to make a more intensive investigation than the August 2001 survey to include a detailed survey in the vicinity of the western boundary of the property around the foreshore. Mr Hall undertook a survey of site and waters both above and below the MHWM. It was this survey which was used by Mr Ireland to make his comparison of the profiles of site. Mark Passfield 52 Mr Passfield is a geotechnical engineer employed by Morse McVeigh and Associates. In his statement he expressed the opinion that white streaks visible on the cliff face had been caused by rock being levered away from the cliff face. Mr Passfield's report in relation to the cause of the rockfall on 5 February 2004 was based on photographic evidence. 53 In cross-examination Mr Passfield agreed that an accurate opinion as to the causation of the separation of the rock face could only be made by inspection. He said that the white streaks appeared to be staining from a white material on the top of the cliff and had not resulted from contact with a rock breaker.

54 Photograph 31 to the affidavit of Michael Egan sworn on 20 July 2004 was also put to Mr Passfield in cross-examination. He agreed that he could not be certain that a notch existed at the top of the white streak as shown in that photograph and made the same conclusion with regard to photograph 33 of the same affidavit. He agreed that he could not be confident that the sandstone block had been levered off the cliff. Mr Passfield believed that there was a notch at the top of the middle streak shown in photograph 32 from the same affidavit. 55 In re-examination the original versions of the photographs in Mr Egan's affidavit were shown to Mr Passfield. Based on perusal of these photographs, Mr Passfield testified that he could clearly identify three notches on the rockface. In the original version of photograph 31 Mr Passfield said that he could identify a well-defined notch on the left side which had indications of being made by a mechanical implement. He testified that he could not be certain whether the other notches had been created by mechanical or natural causes.

56 In further cross-examination Mr Passfield testified that the left notch of photograph 32 had the appearance of abraided sandstone with black patches, which he described as a polishing effect resulting from the operation of machinery. However he agreed that no conclusive geotechnical determination could be made from the photographs alone to establish whether the notch had been caused by mechanical means.

57 Mr Dennis Goumis, shopkeeper and carpenter, gave oral evidence.

58 Mr Goumis had provided answers to the prosecutor in response to the Statutory Notice. In such replies he stated that he had been engaged by the defendant. Additionally Mr Goumis had stated that he only received instructions from a structural engineer and that the only persons present on the site were himself and the plant operator, making no mention of the involvement of Mr Constantinidis.

59 In his oral evidence, contrary to his reply to the Statutory Notice Mr Goumis said that he was engaged by Mr Al Constantinidis to supervise the building of the house. He also said that he received instructions from Mr Constantinidis and that Mr Constantinidis was present at the site.

60 In view of the fact that Mr Goumis had provided written answers which were inconsistent with his oral testimony he was declared to be an unfavourable witness.

61 In his oral testimony Mr Goumis agreed that he initially met the defendant and Mr Constantinidis on site at the time of his engagement and he was given the approved plans for the development. He said that he was also given an envelope by Mr Constantinidis which contained a copy of the contract between the defendant and Mr Constantinidis.

62 Mr Goumis was not given a construction certificate. In response to the question asked in the Statutory Notice as to whether there was a construction certificate applying to the site, Mr Goumis had responded:- I was told that it was part of the council approved plans by the owner Mr Hakim.

63 Mr Goumis said that as he did not understand English very well and could not write, the answers to the Statutory Notice were completed with the assistance of Mr Constantinidis. Subsequently he said that Mr Constantinidis "filled it out". Mr Goumis denied that the defendant had told him that the construction certificate was part of the approved plans.

64 In answer to the question whether the defendant gave him instructions to carry out work Mr Goumis said:- He come to sites few times, three or four times. He was asking me questions, he was telling me some things that he wanted to do but I was always confirm with Al and Al says to me do it or whatever it was, I'll do it. Mr Goumis then agreed that the defendant instructed him to do "Some things" .

65 Mr Goumis said that the Sydney Water employees spoke to the defendant on 5 February 2004. When asked whether the defendant instructed him to undertake further excavation he said:- He did instruct me, the Water Board [Sydney Water] - but the Water Board [Sydney Water] said it has to be the rocks from the - on top of the soil [sewer] has to be removed … However Mr Goumis acknowledged that he did not hear the conversation between the defendant and the Sydney Water employees who visited the site on 5 February 2004. He was told to remove the rocks by the defendant. He said that he then telephoned Mr Constantinidis who told Mr Goumis to remove the rocks:- … if the Waterboard [Sydney Water] says to do that. Mr Goumis said that Mr Constantinidis did not come to the site on 5 February 2004.

66 Mr Goumis said that he was not then aware that the Waterways stop work order had been issued. He said he knew of it either that night or the day after when the ramp was being made. Later he said:- Q. So he [the defendant] told you that he'd received the stop work order --

A. No after. That was the morning that he told me, when we start making the ramp. When Mr Hakim arrived on site we already start the ramp.

Q. But you just told me that it was Mr Hakim after he had the conversation that told you to start to do the ramp?

67 An agreement was shown to Mr Goumis which he identified as one which was given to him by Mr Constantinidis on site in 2003. It comprises a photocopy of the agreement between Jensay Pty Limited ("Jensay") and the defendant dated 29 July 2003 relating to the work at site.

68 Mr Goumis said that he had never seen a copy of the development consent and in 2003 had never heard of a Pt 3A permit. He said he became aware of the need for a Pt 3A permit when Waterways stopped the project on 6 February 2004. Mr Goumis said he did not seek instructions from the defendant since he was working only for Mr Constantinidis.

69 Mr Goumis said that he and Mr Constantinidis arranged for Mr Georgacopoulos of Andrew's Excavations, the plant operator, to undertake excavation at the site. He said that Mr Georgacopoulos ceased working in early December after he had completed the excavation for the slab. Mr Goumis requested Mr Georgacopoulos to return to work on 6 February 2004 to make the ramp. Between December 2003 and February 2004 the excavator remained on the site.

70 Mr Goumis said that he did not see Mr Georgacopoulos working in the area of the cliff face and said that Mr Georgacopoulos would not have physically removed the rock which fell on the foreshore.

71 Mr Goumis said he believed that the concrete slab was poured on 4 February 2004 and that he returned to the site on 5 February 2004 to water the slab. On that day the cliff face fell. When he became aware of it he attempted unsuccessfully to call Mr Constantinidis and then spoke to the defendant by telephone. In such conversation he informed the defendant that the rock had fallen on the sewer. The defendant said that he would call Sydney Water.

72 Two employees of Sydney Water came to the site on the afternoon of 5 February 2004 but Mr Goumis said he had no conversation with them. Mr Goumis attempted to contact Mr Constantinidis but was unable to speak to him on his mobile phone until that evening. Mr Goumis gave the following evidence of his conversation with Mr Constantinidis:- I said to Al the Water Board [Sydney Water] been around and they told us to make a ramp so the machine can grab the rocks on top of the soil [sewer] because the soil [sewer] - he knew the soil [sewer] line was down the bottom and he said to me, go ahead and do it, tell Andrew [Mr Georgacopoulos] to come over and make the ramp, see if you can clean it up.

73 Mr Goumis said he then spoke to Mr Georgacopoulos and requested him to return by 8 o'clock "and start making ramp so we can clear the sewers". Mr Goumis said he did not thereafter speak to the defendant.

74 Mr Goumis said that on the morning of 6 February 2004 he arrived at about 8 am at the site and that the defendant arrived on site at around 9 to 9.30 am after work had been in progress for about an hour to an hour and a half. Mr Goumis said:- A. … We didn't talk much because the machine was working.

Q. During the course of the morning however I think you told us he mentioned to you that he'd received a stop order?

Q. When you say that he told you he'd received a stop order I think you said you would then speak to Al?

A. That's right. Mr Goumis said he then tried to speak to "Al" but only spoke to him after Waterways told them to stop work.

75 Subsequently in cross-examination Mr Goumis gave the following evidence:- Q. Is it correct that you instructed Andrew [Mr Georgacopoulos] to start work building a ramp down to the rock fall on the sewer?

Q. Is it also true, is it correct Mr Goumis, that when Mr Hakim came to the site he spoke to you and told you that the Waterways had sent him a stop order?

76 Mr Goumis said that the defendant did not give him any instructions nor try to give him any instructions. Mr Goumis said that he instructed Mr Georgacopoulos to cease work after a vessel from Waterways told them to stop work immediately.

77 Mr Goumis was asked whether he recalled seeing the defendant throw a rock at Mrs Egan but says he did not see a rock being thrown at her. He said, however:- He [the defendant] throw a rock to the excavator to ask him if he wants a cup of coffee but that's - that's what he did, that's all he did, because that's the only way to communicate with excavator when it's working.

78 The defendant gave evidence and also called evidence from Mr Al Constantinidis, the relevant portions of which are set out hereunder.

79 The defendant who is the director of a telecommunication company, testified that he and his wife owned the site. The land was originally purchased by them and another person in 2000 or 2001 and later the interests of that person were acquired.

80 The defendant said that he sought advice from Mr Al Constantinidis. The defendant had met Mr Constantinidis when the company of which the defendant was a director sponsored a football team of which Mr Constantinidis was the sponsorship manager. The defendant understood that Mr Constantinidis was a builder operating through Jensay. 81 The defendant said that he commissioned plans from Creative Architects. A development application (the first D/A) was prepared by the defendant in 2002 and lodged with the Council. The defendant and his architect met with the Council town planner on three occasions to consider certain issues arising from the proposed plans. As a result of advice provided at these meetings the architect redesigned some aspects of the plans. 82 Council granted the consent subject to conditions. The defendant says he asked Mr Constantinidis if he would build the house. Mr Constantinidis agreed and a written agreement was prepared dated 7 July 2003. The agreement was signed by the defendant, his wife and a representative of Jensay (Exhibit 1). 83 A second agreement dated 29 July 2003 ("the contract") was formulated as an amendment to the agreement of 7 July 2003. It was signed by the defendant, his wife and Mr Constantinidis (Exhibit 3).

84 Clause 7 of the contract provided:- POSSESSION OF SITE The Builder shall, upon the Proprietor making the Site available to him, have legal possession of the Site for the purposes of carrying out his obligations under this Agreement until Practical Completion of the Works or until the Proprietor takes possession of the Works, whichever is the earlier. 85 The defendant said he was concerned with the meaning of such clause and instructed Loretta Khoury, his personal assistant, to confirm with his solicitor, Mr Richard Innes, that such a clause was appropriate. Subsequently the defendant received advice that the clause was a standard provision. An e-mail transmission said to be Ms Khoury's response to the defendant was tendered (Exhibit 2).

86 The defendant testified as follows:- My understanding was that I had given Mr Constantinidis or Jensay Pty Limited the right over - over the land to do what they felt like - or to do as they wished to build the house as council approved plans.

The defendant testified that work at the site commenced in September 2003. Before any work commenced a safety fence was erected. The existing house on site was demolished. 87 The defendant testified that pursuant to the contract Mr Constantinidis was to be paid $450,000 for his services and the defendant was to pay for all materials. Clause 8 required payment of $50,000 14 days after the commencement of the work. The defendant said that this payment was made on 15 November 2003 and tendered a bank statement to show that an amount of $50,000 was debited from his account on this date.

88 The preamble of the contract provides as follows:- I Mick Hakim of 40 barker rd Strathfield Commission Archillies Constantinidis Director of Jensay pty limited a building and development company to carry out All work on 10 Fortescue st Chiswick as per approved plans and comply with all Conditions of Canada bay council [sic]

89 The defendant testified that he collected the consent from the Council and delivered it to Mr Constantinidis. The defendant said that he did not read the consent nor did he take it upon himself in any way to inform himself of the conditions of consent. He said that in October 2003 he did not know of the Rivers and Foreshores Improvement Act nor of the requirements for a Pt 3A permit. 90 The defendant testified that during development of the site he visited the site on three or four occasions. In about July 2003 he was introduced to Mr Dennis Goumis by Mr Constantinidis who told him that Mr Goumis was to be the supervisor on the site. The defendant said he did not engage Mr Goumis, never paid him any monies and never gave him instructions to work. The defendant testified that he spoke with Mr Goumis on site occasionally after work commenced to ascertain the progress of the works.

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"

104 The defendant said that on his solicitor's advice he took photos of the site and that he asked Mr Goumis if he would like a coffee. The defendant said that Mr Goumis told him to throw a stone on the side of the excavator window so that Mr Georgacopoulos would stop the machine and the defendant could ask him whether he would like a coffee. The defendant denied that he threw rocks at Mrs Egan and denied speaking to her at all. The defendant then went to a nearby shop to purchase coffees. The defendant said that when he returned Mr Goumis told him that he had spoken to Mr Constantinidis about the Waterways stop work order and he had said to continue with work and he would resolve the matter. The defendant then left the site. 105 The defendant was asked:- Q. Now did it occur to you that you should instruct Mr Goumis or the plant operator to stop what they were doing that morning?

A. Well I had a contract agreement between myself and Mr Constantinidis. I gave them what I received in the mail and Mr Constantinidis said that he would look after it.

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.

112 The defendant agreed he received a Notice of Proposed Order from Council dated 14 January 2004 but said that it did not make him aware that the work being carried out was unlawful. He acknowledged that he read the document quickly when he received it and handed it to the architect and Mr Constantinidis. The defendant said he made no enquiries to ascertain whether there was any illegal work being carried out on the site. 113 The defendant said he could not recall having received a letter dated 30 January 2004 addressed to him from the Council. The letter (Exhibit Q) demanded production of information to enable Council to consider the application for the building certificate. The defendant denied that he ever received any telephone calls from Council.

114 The defendant denied he received a phone call on 3 February 2004 from Waterways. Mr Dowd's affidavit was put to the defendant. Mr Dowd deposed to a conversation with the defendant on 3 February 2004 in which Mr Dowd told the defendant of the necessity for a permit. The defendant denied having such conversation and also denied receiving a second telephone conversation from Mr Dowd on 5 February 2004. The defendant agreed he called Waterways and left a message on the voicemail of a Waterways officer on 5 February 2004, but denied that this person was named Mr Dowd. The defendant could not recall the name of the person to whom he had spoken. The defendant said that in the conversation on 5 February 2004 he informed the Waterways officer of the rockfall which had occurred on that day. The defendant denied he was told that the Waterways stop work order remained in force and said that the Waterways officer told the defendant that it was a Canada Bay Council matter and that he should contact the Council.

115 The defendant disputed Mr Egan's evidence that the defendant spoke to Mr Georgacopoulos on site on several occasions. Achilles Constantinidis 116 Mr Achilles Constantinidis, a company director, testified that he was involved in several businesses and had been a director of Jensay for about 17 years. Jensay conducts the business of property construction and acts as a holding company. 117 Mr Constantinidis said he met the defendant at a social function in 2001 associated with the Bulldogs Rugby League Club. He became aware that the defendant had bought land and wanted to construct a house. Mr Constantinidis said that initially the defendant asked him for advice concerning the proposed development and subsequently sought further advice in relation to issues with the site. Mr Constantinidis said he and the defendant attended a meeting at about 3 pm on the site with Canada Bay Council. Present at the site inspection were the Mayor and five Councillors, three groups of neighbours, the defendant and some of his staff and Mr Constantinidis and one of his staff members. 118 Mr Constantinidis said that after the site visit and he attended a full Council meeting with the defendant. Mr Constantinidis said he was given permission to address the Council and did so. He said the Committee approved the first D/A subject to four conditions.

119 A week later Mr Constantinidis said he met the defendant to discuss the changes required by the Council. These changes related to a front entrance and garage. Mr Constantinidis said he had received the consent from the defendant and received an additional copy from the Council.

120 Mr Constantinidis said that after several meetings between himself and the defendant, an agreement to carry out work on the site was drawn up and signed by each of them. Mr Constantinidis testified that the agreement (Exhibit 1) was drafted at his instruction. Another document (Exhibit 3) was prepared as an annexure which set out some additional points which Mr Constantinidis required to be included in the agreement. Mr Constantinidis testified that "there was a more formal one [agreement] after this one". He said:- We prepared a standard master builder's type contract annexed for certain things which I prepared as a flow-on from this, from this process.

121 A third agreement was not tendered and Mr Constantinidis said he could not locate it. Mr Constantinidis said that the third agreement would have included a clause concerning possession of the site equivalent to that in the contract. 122 Mr Constantinidis said he understood that the agreement related to the construction of the new residential dwelling, swimming pool and an accessway leading to the foreshore of the river. Mr Constantinidis said he was paid $50,000 by the defendant. He said that the defendant was not involved in directing any of the work. 123 Mr Constantinidis testified that within a week of the first agreement he arranged for a power supply to be provided and for the disconnection of the services to the house. Mr Constantinidis said he engaged Mr Dennis Goumis as the site foreman. At some point after Mr Constantinidis had received the development consent he instructed Mr Goumis to commence work at the site. 124 Mr Constantinidis said he read the development consent before construction of the new dwelling commenced. Mr Constantinidis testified that he was aware of the requirement for a Pt 3A permit and he gave instructions to the architect to ensure the planning consultant complied with this condition. The planning consultant was not identified. Mr Constantinidis said that at the time construction commenced, he understood that an application for a Pt 3A permit had been lodged but that a permit had not been granted. 125 Mr Constantinidis testified that he attended the site at least once per week after the demolition was complete. He retained Luke Tsougranis to determine the appropriate method to level the site. Mr Constantinidis had visited the cliff face beside the river on many occasions.

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.

132 Mr Constantinidis testified that he attended the site late in the afternoon of 6 February 2004. No active work was in progress when he arrived. Mr Goumis was present on the site. He understood that Mr Goumis had been preparing the right hand side of the site near the fence to ramp the machine lower. 133 Mr Constantinidis said it did not occur to him that a Pt 3A permit was required to do any work on the fallen rock. He said he was told that there was an exposed sewer and he gave instructions based upon Sydney Water's requirements to remove the rock.

134 A hypothetical proposition was put to Mr Constantinidis in which he was asked whether he would have obeyed instructions from the defendant as follows:-

Q. So if he'd said not to do anything, you would have said "No. I'm going to - I want to fix what's there"? A. I wouldn't have just been blasé about my answer. I would've said that, "If an authority has instructed us to do something, we need to comply." I would've investigated further, as I attempted to do months down the track.

135 Mr Constantinidis was aware that the Council stop work order had been issued and said he believed that he would have discussed this matter with the defendant. He said he recalled discussing the proposed order dated 14 January 2004 with a Council officer. In cross-examination Mr Constantinidis denied he filled out an application for Building Certificate pursuant to s 149B of the EP&A Act (Exhibit N). 136 Mr Constantinidis agreed that he had assisted both Mr Georgacopoulos and Mr Goumis to prepare their answers to the Statutory Notices.

137 The prosecutor submits that the word "cause" as contained in the definition of "make an excavation" is to be given a commonsense meaning as was observed by the House of Lords in Alphacell Ltd v Woodward [1972] AC 824 per Lord Wilberforce at 834-5 and adopted in Environment Protection Authority v Multiplex Constructions Pty Ltd (2000) 112 LGERA 1 at 50. The prosecutor submits that it is not a requirement that a positive act of a defendant be the immediate cause but rather whether something the defendant had done whether immediately or antecedently resulted in the offence: see Environment Agency (formerly National Rivers Authority) v Empress Car Co (Abertillery) Ltd [1999] 2 AC 22.

138 The prosecutor further submits that the definition of "make an excavation" uses the words "cause or allow", not "cause or permit" which shows an intention to give the word "allow" an expansive meaning. The prosecutor submits that "allow" should be taken to mean "to permit involuntarily, by neglect or oversight", which is one of the definitions of "allow" given in the second revised edition of the Macquarie Dictionary. Accordingly the prosecutor submits that the offence is constituted if the defendant is proven to have facilitated the commission of the offence.

139 The prosecutor submits that the defence of "honest and reasonable mistake" is only available for mistake of fact and cannot be availed of if the mistake is a mixture of fact or law or a mistake of law. The prosecutor relies upon the observations of McLellan J in Hornsby Shire Council v Surace [2004] NSWLEC 216. The prosecutor says that the mistake, if any, by the defendant resulted from a mistake partly of fact and partly of law.

140 The prosecutor says that excavation took place on "protected land" as defined in s 22A of the Act and that the cliff face was deliberately removed.

141 The prosecutor says that the attempt by the defendant to deny any involvement with the development of the site does not succeed. The prosecutor relies upon the applications to Council and his presence at the site during excavation. The prosecutor submits that the defendant must have known of the requirement for a Pt 3A permit because of Council's conditions attaching to the consent, Council's Notice of Proposed Order dated 14 January 2004 and because of the cheques paid by the defendant to Waterways. The prosecutor submits that the defendant's disclaimer of any knowledge of the requirements for a Pt 3A permit is incredible. Further, the prosecutor says that the defendant's state of knowledge with respect to the requirement for a Pt 3A permit is irrelevant.

142 The prosecutor submits that the defendant was aware of the existence of the Waterways stop work order on the evening of 5 February 2004. He took no steps to prevent Mr Goumis from continuing the excavation. As to the alleged Sydney Water instruction the prosecutor submits that the evidence, at its highest, constituted only a request to remove the rocks on the sewer in order to allow for an inspection. The reference by the defendant to brown material in the river is consistent with the fall of debris from the cliff face.

143 The prosecutor submits that the conclusion can be drawn that the defendant was issuing instructions on the site. The defendant said he sent a letter to the Council which was drafted by his solicitor and referred to instructions he had given to the operator of the excavator. Yet the defendant denied that he told his solicitor to so write. The prosecutor submits that such testimony defies logic.

144 The prosecutor says that the evidence of Mr Goumis is generally unreliable and that whether Mr Goumis was engaged by the defendant or Mr Constantinidis is irrelevant since primary liability not vicarious liability applies.

145 The defendant submits that possession of the site at all material times had passed to Mr Constantinidis or his company Jensay and that the defendant could not interfere with operations at the site. Having surrendered possession of the site he had no involvement in the activities at the site. The alleged breaches resulted from the actions of third parties and the defendant relies upon the observations of Lloyd J in Multiplex (at [230], [256], [259]).

146 The defendant says that he did not engage Mr Goumis nor Mr Georgacopoulos and that all persons working on the site were engaged by Mr Constantinidis. The defendant submits that common law principles of vicarious liability should be implied into the actus reus of the offence under s 22B(2) of the Act, thereby requiring the prosecutor to prove control on the part of the defendant. The defendant relies upon the observations of Gleeson CJ in Tiger Nominees Pty Ltd and Anor v State Pollution Control Commission (1992) 25 NSWLR 715 at 719 where his Honour said:- However, the appellants contend that, having regard to the express language employed in s 16(2), 16(3) and 16(4), 16(1) ought not to be construed so as to impose vicarious liability as well as primary liability. In support of this contention, the appellants submit that the word "cause" in s 16(3) must be read as setting the outer limits for the imposition of liability for the acts of others. I cannot accept that submission.

147 The defendant also relies upon the principle that vicarious liability cannot arise in criminal law for the conduct of an independent contractor, as discussed in Environment Protection Authority v McConnell Dowell Constructors (Aust) Pty Ltd (2003) 128 LGERA 240 at 258, 261-2, 265; per Talbot J in Environment Protection Authority v Snowy Mountains Engineering Corporation Ltd (1994) 83 LGERA 51. The defendant submits that he was no more than the owner of real estate, gave no instructions and had no control over the site: cf Environment Protection Authority v Taylor Woodrow (Australia) Pty Limited (1997) 101 LGERA 226 at 240-5. Accordingly the defendant submits that he cannot be held liable for the criminal actions of Messrs Constantinidis, Goumis and Georgacopoulos, nor of Sydney Water. They were all independent of the defendant and no guilt can attach to the defendant: see Environment Protection Authority v Munters Pty Ltd (1998) 98 LGERA 279.

148 The defendant submits that there is no evidence to establish that the rockfall was caused by the actions of the defendant. On 6 February 2004 the defendant was not the operator of any plant and said nothing to the plant operator. The defendant submits that there is no basis for any criminal liability attributable to the defendant. He did not instruct Mr Goumis to remove the rocks. Instead he telephoned his solicitor, Sydney Water and the Council.

149 The defendant submits that on the morning of 6 February 2004 Mr Goumis simply fulfilled the instructions of Sydney Water. The defendant says that on arrival at the site he told Mr Goumis that he had received the Waterways stop work order and that he had sent it by facsimile to Mr Constantinidis. Accordingly the excavation on 6 February 2004 was caused by Sydney Water's instructions, Mr Constantinidis' instructions, or by Mr Goumis' instructions.

150 As to credit the defendant claims that the letter (Exhibit B) prepared by his solicitor was signed by the defendant without reading it. Additionally he claims that in the telephone conversation with Ms Leong, he provided the name, address and telephone number of his builder and of his solicitor and that Ms Leong's recollection of such telephone conversation is incomplete.

151 There are many events which are relied upon by the prosecutor to impugn the credit of the defendant. The prosecutor relies upon a letter (Exhibit Q) sent to the defendant dated 30 January 2004 by the Council concerning the commencement of work at the site in the absence of a construction certificate. The defendant could not recall receiving such letter and denied having any telephone conversation with Council officers. However, a copy of the letter contained in Council's file records the following notation:- 30/1/04. Rang Mr Hakim. He was advised of the above items and will submit a.s.a.p. Inspection to be arranged with Mr Hakim on site.

152 The prosecutor also relies upon the evidence of the rock throwing incident on 6 February 2004. The defendant's evidence conflicts directly with that of Mrs Egan. Mrs Egan had a vivid recollection of the events of 6 February 2004 and was unshaken in her cross-examination. Having heard the testimony of each witness and having considered the photographs attached to her affidavit, the Court is satisfied that Mrs Egan's version is more credible.

153 The Court has heard evidence provided by Ms Leong of the telephone conversation which she says took place with the defendant. The defendant claims that he provided her with the names of Mr Constantinidis and his solicitor and even gave their telephone numbers. No cross-examination took place of Ms Leong to suggest that she had omitted to record these matters, and Mr Morrison and Ms Harris, who listened to the conversation and verified its contents, were not cross-examined.

154 The prosecutor submits that the defendant's evidence concerning the letter allegedly drafted by his solicitor on 5 February 2004 is incredible. In the absence of testimony from the defendant's solicitor that her instructions were misunderstood, the Court is unable to accept that the letter, signed by the defendant, contained such a fundamental error as claimed.

155 Brendan Dowd deposed to a conversation he had with the defendant on 3 February 2004 in which he told the defendant of the necessity of a Pt 3A permit and required that no work was to be carried out until such permit had issued. Mr Dowd also deposed to a second conversation with the defendant which he said took place on 5 February 2004 in which the defendant was informed that Waterways had issued a stop work order in respect of the site.

156 The defendant could not recall Mr Dowd and denied speaking with him at any time, but no cross-examination of Mr Dowd took place. Extraneous evidence tends to corroborate Mr Dowd's evidence. Email correspondence between Mr Dowd and the Council establishes that Mr Dowd sought the defendant's contact details from the Council on 2 February 2004 and that the Waterways stop work order was issued on 3 February 2004. The Court is satisfied that Mr Dowd's evidence is to be preferred.

157 Taking into consideration the discrepancies that are apparent in the evidence of the defendant, the Court concludes that the defendant's testimony is unreliable.

158 It may be convenient to record that the Court found the evidence of Mr Goumis to be unreliable and the evidence of Mr Constantinidis to be vague and of little assistance due to its lack of detail.

159 The Act imposes primary liability upon a person who has been found to have engaged in the proscribed conduct. The fact that other persons may have been involved does not provide a defence. Those persons might have been charged separately: see for example Owen v Willtara Construction Pty Ltd (1998) 103 LGERA 137 at 149. Vicarious liability could arise in relation to s 22B(2) and s 22D(5) but this possibility does not affect the primary liability of an offender under the Act. The passage of Gleeson CJ in Tiger Nominees (cited at [146] above) relied upon by the defendant does not support his submissions, but to the contrary confirms that vicarious liability exists separately from primary liability. It follows that the principles of vicarious liability do not apply in the present circumstances.

160 In respect of charge 50057 of 2004 the offence is established if "a person" makes an excavation on protected land. As defined "make an excavation" includes "cause or allow an excavation to be made". The parties agree that such charge creates an offence of strict liability. Accordingly it is unnecessary for the prosecutor to establish mens rea on the part of the defendant: see Sherras v De Rutzen [1895] 1 QB 918 at 921; Caralis and Ors v Smyth (1988) 65 LGRA 303 at 308-9.

161 Between 1 October 2003 and 7 February 2004 excavation took place on protected land. Such excavation occurred without a permit issued pursuant to Pt 3A of the Act.

162 The excavation took place to level the site for the purpose of pouring the concrete slab. Approximately half of the area of the slab is located on protected land: see Annexure A to the affidavit of Mr Ireland of 27 July 2004 and also the Contour Plan No C38 attached to his affidavit of 5 October 2004. The excavation continued on 6 February 2004 by the removal of the remainder of the cliff face. Plan No C38A attached to the affidavit of Mr Ireland of 5 October 2004 establishes that the site has been extensively excavated.

163 A rockfall occurred at the cliff face on 5 February 2004. There is no direct evidence that the rockfall was the result of deliberate action. Mr Passfield observed notches and apparent impact marks on the cliff face but conceded that no concluded opinion could be made on the basis of photographs alone. The Court cannot therefore be satisfied beyond a reasonable doubt that the cliff face was removed by mechanical means.

164 The word "cause" has been the subject of judicial consideration: see for example Alphacell v Woodward; Environmental Agency v Empress; EPA v Multiplex. These authorities establish that the word "cause" has an extensive application and may render a party liable for an offence even though that party may not have had any immediate involvement in the commission of the offence. In Alphacell Viscount Dilhorne said at 839-40: What, then, is meant by the word "caused" in the subsection? If a man, intending to secure a particular result, does an act which brings that about, he causes that result. If he deliberately and intentionally does certain acts of which the natural consequence is that certain results ensue, may he not also be said to have caused those results even though they may not have been intended by him? I think he can, just as he can be said to cause the result if he is negligent, without intending that result.

165 In Empress, Lord Hoffman said at 28: The only question was whether something which the defendant had done, whether immediately or antecedently, caused the pollution .

166 In the above authorities the defendants had created the circumstances which gave rise to the offences. In Alphacell pumping equipment of the defendants became blocked and in Empress a diesel tank had been modified in such a way that a third party allowed it to discharge into a river. The defendants had not participated in, nor known of, the act which was the immediate cause of the offence, but each had created circumstances which resulted in the offence.

167 In the present case the defendant was granted development consent and the defendant acted upon the consent by retaining Jensay to undertake the work. Such consent, and the defendant's implemention thereof, created the circumstances from which the offence resulted in the same way as the defendants in Alphacell and Empress created the circumstances ultimately leading to the commission of the offences. The intervention of Jensay was not extraordinary in the sense used by Lord Hoffman in Empress (see at 33). At all times the ultimate responsibility for ensuring compliance with the conditions of development consent lay with the defendant.

168 The defendant relies upon the decision in EPA v Multplex in support of the defence that he did not cause the excavation. In Multiplex the defendant was charged with an offence against s 16(1) of the Clean Waters Act 1970 (now repealed) which prohibited by s 16(2) a person from causing or permitting pollution of any waters.

169 Lloyd J in Multiplex found that there was insufficient evidence to establish beyond a reasonable doubt that the defendant caused the pollution of waters. The Court noted the interposition of several contracts between the defendant and the actual person who severed the pipe. His Honour concluded (at 56) that the contractual arrangements did not satisfy the Court that the defendant was "relevantly in control of the site or of the works which were being performed by McConnell Dowell and by McConnell Dowell's sub-subcontractor, Moltoni".

170 In Multiplex there was no statutory defence to the charge. However, s 22B(3)(a) of the Act provides a defence on the basis, inter alia, that the defendant had no control. Accordingly in view of the specific provisions of the Act the issue of control in this case is relevant only as an element of the defence. It is also to be observed that the legislation considered in Multiplex created an offence if pollution occurred. In the present case the Act creates an offence if the excavation is made without a permit. It is not merely the physical act of making an excavation which is prohibited, but rather the making of an excavation without authority. Even if the defendant had divested himself of control of the site pursuant to his contract with Jensay, he retained the power to apply for the requisite permit. Accordingly the issue of legal control of the site is not determinative as it was found to be in Multiplex.

171 In view of the above finding, it is not necessary for the Court to determine whether the defendant "allowed" the excavation. However, it is appropriate that the Court make the following observations.

172 The word "allow" is defined in the Macquarie Dictionary revised 3rd edition to include the following:- To grant permission to, or for; permit; … To permit involuntarily, by neglect or oversight .

173 "Allow" and "permit" may be synonymous: see Richards J in De Kuyper v Crafter [1942] SASR 238 at 243; Waugh v Kippen (1986) 160 CLR 156 at 166. In Owen v Willtara Bignold J was required to determine the meaning of "allow". In reaching his conclusions, Bignold J referred to Caruso v Boucher (1975) 10 SASR 71 wherein Bray CJ at 75 said: Where the whole power and authority to do the act or perform the task in question is delegated, then the power to prevent the forbidden consequences is also delegated, and, if by his negligence the delegate fails to prevent those consequences, the principal can be convicted of allowing them ( Emary v Nolloth [[1903] 2 KB 264 per Lord Alverstone CJ at 269]). Where, on the other hand, the delegate is given precise and limited instructions how to do the act or perform the task and no harm would have ensued if those instructions had been obeyed, and they are disobeyed and as a result the forbidden consequences occur, the principal has committed no offence ( Gilbert v Gulliver [[1918] VLR 185]). In the first case he has delegated the power to prevent and a discretion about the manner of prevention, in the second case, by reason of the limited nature of the delegation, he has not.

174 Bignold J concluded that "allow" equated to the sanctioning of the illegal act or the failure to prevent it when the defendant had power to prevent the act from happening. This is consistent with Corporation of the City of Adelaide v Australasian Performing Right Association Limited (1928) 40 CLR 481 where Gavin Duffy and Starke JJ (at 503) found that "Permission to do an act involves some power or authority to control the act to be done".

175 Adopting these authorities the Court is satisfied that the defendant failed to prevent the excavation. Having received development consent the defendant took no steps to ensure compliance with its conditions when the primary responsibility rested with the defendant, as grantee of the consent, to comply. The defendant therefore "allowed" the excavation.

176 Section 22B(3)(a) of the Act provides a defence if the offence resulted from causes over which the defendant had no control and the offender took reasonable precautions and exercised due diligence to prevent the commission of the offence. Each requirement must be satisfied to establish the defence (see s 141(2) Evidence Act 1995).

177 The defence of honest and reasonable mistake as discussed by Street CJ in R v Wampfler (1987) 11 NSWLR 541 at 546 and by Gibbs CJ in He Kaw Teh v The Queen (1985) 157 CLR 523 at 532-5 was not relied upon by the defendant. In this case no factual mistake exists sufficient to establish such defence. Even if the defendant did not know of the precise requirement for a Pt 3A permit, such circumstance would not provide a defence since ignorance of the law is no excuse: see Griffin v Marsh (1994) 34 NSWLR 104 at 122 per Smart J; Hornsby v Surace at [66].

178 The first limb of the statutory defence requires the defendant to prove that he had no control over the commission of the offence. To establish this defence, the defendant relies upon the contract which he says was entered into between the defendant and Mrs Hakim as owners and Jensay as contractor. The defendant also testified that he did not issue instructions to any person in relation to work on the site.

179 The contract has been prepared by laymen and appears to extract pages of a printed form as an annexure. The original of such contract was not produced. A photocopy is apparently signed by the defendant and Mrs Hakim and a person on behalf of Jensay and is dated 29 July 2003. However, the annexed pages have been signed solely by the defendant.

180 The evidence concerning the contract is unsatisfactory. Mr Constantinidis was adamant that a third contract existed and that the contract relied upon by the defendant is not the operative contract. Such evidence is inconsistent with the evidence provided by the defendant who never referred to the existence of a third contract. After Mr Constantinidis' evidence was completed the defendant was recalled to correct his testimony in relation to the application for the building certificate. The defendant had an opportunity to explain the inconsistency in the evidence concerning the contract which he claimed gave control of the site to Jensay. However he did not seek to advance any further evidence nor to produce any third contract. Accordingly the evidence concerning the contract remains in conflict.

181 As to the scope of the work to be undertaken by Jensay, the defendant relies upon the contract, which requires Jensay "to carry out All work on 10 Fortescue st Chiswick as per approved plans and comply with all Conditions of Canada bay council". No consent existed for the swimming pool and foreshore access and in the absence of a consent for such work, it could never have been legally performed. However, Mr Constantinidis said that the contract required him to construct not only the house, but also the swimming pool and foreshore access.

182 In view of the conflicting and unsatisfactory evidence, the Court cannot be satisfied of the contractual arrangements for the performance of the work. Further the Court is not satisfied that the contract removed all control of the site from the defendant.

183 Regardless of the contractual arrangements, the Court does not accept that any such contract prevented the defendant from complying with the requirements of s 22B of the Act. The defendant could have complied with s 22B of the Act by applying for a Pt 3A permit irrespective of possession of the site being given to Jensay.

184 Additionally the Court is not satisfied that the defendant was unable to issue instructions to stop the excavation, especially when the defendant knew from Council's correspondence in January 2004 that Jensay was carrying out work contrary to the conditions of consent and thereby acting in breach of the contract relied upon by the defendant.

185 It follows that the defendant's claim that he was powerless to act because he had transferred control of the site to Jensay pursuant to the contract is not established.

186 The defendant also relies upon the instructions from Sydney Water as removing his control over the excavation which occurred on 6 February 2004. The Court finds that Sydney Water inspected the site on 5 February 2004 in response to the defendant's notification and that a bypass sewer was installed. Although Sydney Water did not give evidence the Court accepts that Sydney Water made a request to remove fallen rocks from its sewer. The records of Sydney Water do not establish that the sewer pipe was damaged nor that any urgency prevailed.

187 The Court is not satisfied that the request of Sydney Water could operate to remove all control of the defendant over the commission of the offence. Even if it could, the defendant would still need to satisfy the second limb of the defence.

188 The second limb of the statutory defence requires the defendant to establish that he took reasonable precautions and exercised due diligence to prevent the offence. The defendant did not read the conditions of consent to the first D/A and took no steps to satisfy himself that the conditions of consent to the first D/A were being complied with by Jensay. Further he took no steps to satisfy the requirement to produce the Pt 3A permit following service of Council's notice dated 14 January 2004. With regard to the excavation on 6 February 2004, the defendant had been specifically informed that a Pt 3A permit had not been issued yet took no steps to prevent further excavation on that day.

189 In respect of the Sydney Water request, the defendant did not exercise due diligence. When the Sydney Water employees visited the site the defendant already had specific knowledge from the conversations with Mr Dowd on 3 and 5 February 2004 that Waterways was issuing a stop work order. The defendant did not tell the Sydney Water employees that a Waterways stop work order was being issued.

190 The Waterways stop work order was served on the defendant on the evening of 5 February 2004. Despite the notation of the name and telephone number on the Waterways stop work order of the relevant Waterways officer, the defendant did not attempt to contact Waterways to inform it of the request from Sydney Water to remove rocks from the sewer.

191 To establish the defence that the defendant took reasonable precautions and exercised due diligence, the defendant would need to show at least that he took the basic steps outlined in the paragraphs above. The defendant failed to do so.

192 The Court finds that the defence provided by s 22B(3)(a) has not been established.

193 As to charge 50058 of 2004 the prosecutor is required to prove that the defendant did not comply with an order issued pursuant to s 22D of the Act. Section 22D(5) is also a strict liability offence.

194 The defendant was a person contravening s 22B of the Act when he was served with the Waterways stop work order on the evening of 5 February 2004. The defendant did not procure cessation of the work on the site.

195 On 6 February 2004 the defendant did not arrive at the site until between 9 am and 9.30 am and, upon arrival, took no steps to require Mr Goumis to cease working. The photographs taken by Mrs Egan show that in fact he was present whilst further excavation of the cliff face was being carried out.

196 The defendant has not alleged that he made an honest and reasonable mistake of fact and there is no statutory defence to the charge. Accordingly, the charge is established.

197 During the course of the hearing, the defendant alleged in proceedings No 50057 of 2004 that the charge under s 22B(2) of the Act was bad for duplicity. The defendant alleged that there were two possible offences committed in the period of time covered by the charge. The Court determined that no duplicity arose in the formulation of the charge in respect of the period during which the offence allegedly occurred.

198 The Court finds the offences alleged in proceedings No 50057 and 50058 proved.

199 The Court orders that the proceedings be referred to the Registrar on 13 April 2005 for the purpose of allocation of a further hearing date for submissions on penalty.

11/04/2005 - Incorrect judgment date - Paragraph(s) Beginning of judgment

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.