Evidence on Behalf of Mr Perini
92In addition to two affidavits sworn by himself, Mr Perini also relied on an affidavit sworn by his wife Ms Rosslyn Sue Perini (known as "Sue Perini") sworn 18 August 2011, Mr Francis Grill affirmed 28 April 2011 and Mr John Dickson sworn 19 April 2011.
Mr Grill, the Interior Designer
93Mr Grill stated that he recalled many meetings during which the changes to the design of the house were discussed, including the construction of the swimming pool adjacent to the carport and the splay corner. It was his evidence that he did not recall at any time during these meetings Mr Ridley Smith, or any person from his office, advising or stating that these changes required the consent of the council.
94More specifically, Mr Grill recalled that on one occasion the construction of the pool was discussed at a meeting on site with Mr Perini. Mr Ridley Smith was not present at the meeting. He recalled discussing the fact that the excavation machine was onsite at the time and that there was therefore utility in excavating the pool while the machine was present, due to the difficulty of accessing the site. He recalled telling Mr Perini at the time that the pool would require the lodgement of a s 96 modification application. He also recalled Mr Perini telling him that if approval was not forthcoming for the pool that he would utilise it as a rainwater storage tank.
Mr Dickson, the Builder
95The evidence of Mr Dickson was not dissimilar. In particular, he stated that he never heard Mr Ridley Smith say to Mr Perini that a suggested change could not be effected. But he did recall Mr Perini asking Mr Ridley Smith whether the additional excavation under the house for the lift shaft and the pool required consent. Mr Ridley Smith advised him that they did not. Mr Dickson specifically recalled Mr Mah raising concerns about the changes to the roof shape. Mr Mah queried whether or not the alterations were permissible, to which Mr Ridley Smith responded that they were "within allowable limits". It was Mr Dickson's impression that Mr Perini relied on the advice of Mr Ridley Smith.
96Mr Dickson gave oral evidence in addition to his written evidence. He stated that he took directions from "mostly" Mr Ridley Smith.
97Mr Dickson was cross-examined. He accepted that he had not attended all of the meetings between Mr Perini and Mr Ridley Smith. He agreed that during the discussion between himself, Mr Ridley Smith and Mr Perini regarding the increase to the height of the roof, Mr Perini was made aware of the risk that increasing the height would breach the development consent, but that Mr Perini appeared to be willing to accept that risk.
Mrs Perini
98In her affidavit, Mrs Perini recalled Mr Fitzgerald stating that variations could be made as long as they did not interfere with the safety of the site and the amenity of the neighbours.
99She deposed to the fact that she and her husband have known Mr Ridley Smith for approximately 20 years. She described him as a "trusted adviser" in relation to building, design and construction matters. It was her evidence that if she and her husband were considering a change to any part of the proposed development, she would ask Mr Ridley Smith if it was permissible and his usual response was "no problem". She could not recall a single occasion upon which he had said to her that a proposed amendment would require council approval, other than for the pool and pool equipment room. In this regard, she stated that she recalled him telling her that approval for the pool and pool equipment room could be dealt with after completion of the works, that is to say retrospectively. Specifically in relation to the pool, it was her understanding that an approval could be sought following the anticipated change to the LEP. Accordingly, the hole for the pool was dug and it was her understanding that if the pool was not approved, it would be used for underground water retention.
100She stated that at the time the building project was initially proposed by herself and her husband, they were intending to spend approximately $6 million of which $4.75 million was for construction.
101In answer to Mr Ridley Smith's evidence, she further deposed to the following:
(a) she denied that the changes to the development as approved were made at their request;
(b) it was Mr Ridley Smith who informed Mr Perini that the chamfer could be deleted. There was no mention whatsoever of Mrs Nelson having to give consent to its deletion;
(c) the change to the roof was not initiated by Mr Perini, but was initiated by Mr Ridley Smith. In relation to the change in the roof height, it was not until the s 34 conference before the Court (in the proceedings before Tuor C) that she learnt for the first time that the permitted roof height had been exceeded;
(d) it was Mr Ridley Smith who suggested increasing the floor to ceiling heights;
(e) she expressed her remorse at the events leading up to the Court proceedings. She stated that she and her husband had "spent a large sum of money and have lost a lot of critical time whilst the building project has been stalled, rectifying the site problems the subject of these proceedings". Furthermore, she did not understand at any time of the carrying out of the work that "we were doing anything illegal";
(f) although she understood that some of the work required further approval, she believed that this could be obtained retrospectively;
(g) she noted the close working relationship she and her husband had had with Mr Ridley Smith over the years and was distressed that the relationship had been "terminated"; and
(h) at all times she and her husband had relied on the architects. Neither her nor her husband were "experienced in building".
102Mrs Perini gave further oral evidence. She stated that she had regular meetings between herself, Mr Perini and Mr Ridley Smith in relation to the project. Mr Mah was present at many of these meetings, together with Mr Dickson and Mr Grill. During the meetings she and her husband authorised changes to the construction of the dwelling, however, she was never aware that these changes would place her or her husband in breach of the law.
103Finally, Mrs Perini gave evidence of the enormous stress that the proceedings had caused Mr Perini.
104During cross-examination Mrs Perini denied ever having a conversation with Mrs Nelson about whether she had any concerns about the squaring off of the splay on the upper level of the building.
105Mrs Perini stated the following in relation to the construction of the shell of the pool (T19/08/11 44.27-44.29):
Q. Did you know that when you built the shell of the pool, that made it not comply?
A. Yes.
This was because Mr and Mrs Perini were prepared to convert the pool shell into an underground storage tank if approval was not forthcoming from the council or, if that was not permitted, it was their intention to remove the shell of the pool. Mrs Perini stated that she had received advice to this effect from one of the experts, but she could not recall who. Significantly, Mrs Perini accepted that having been told not to build the swimming pool they had nevertheless decided "to do it anyway" (T19/08/11 46.28).
Mr Perini
106The inexperience of Mr and Mrs Perini in managing building projects was reinforced by Mr Perini in his affidavit sworn 19 April 2011.
107Mr Perini outlined the history of his decision to build a residential dwelling on the property. Originally, the plan to build a residential dwelling was conceived in 1982. Mr Perini engaged Mr Ridley Smith to prepare plans. The project was approved but did not proceed. In 2003 Mr Perini again decided to develop the property for residential purposes. The first development application was refused because the proposal did not comply with the existing foreshore building line. After amendments were made to alter the foreshore building line, a new DA, the DA the subject of these proceedings, was lodged with the Council in 2007.
108Shortly after the DA was lodged, Mr Pickles spoke to Mr Ridley Smith indicating that the insufficient landscaped area shown in the DA would not be approved, however, if the pool was deleted it would comply. Mr Pickles told Mr Ridley Smith that the council were going to amend their LEP to decrease the landscaped area requirements. An application to include a pool could therefore be made at that time. On this basis, Mr Perini agreed to delete the pool from the plans, which is what occurred.
109It was Mr Ridley Smith who advised Mr Perini to engage Mr Fitzgerald on the basis he was "very reasonable in his approach to variations to the DA". Following the granting of the consent, Mr Perini met Mr Fitzgerald on site. In particular he discussed with Mr Fitzgerald the proposed lift shaft extension, the ceiling heights and the lowering of the billiard room floor level. It was at this meeting that Mr Fitzgerald said, "variations can be made to the approved plans as long as they do not interfere with the amenity of the neighbours or the safety of the site".
110Regular meetings took place between himself, Mr Ridley Smith and the builder. At these meetings, variations were discussed and agreed upon. Following the meetings, Mr Ridley Smith would prepare plans to give effect to the agreed variations. In particular, Mr Perini met with Mr Ridley Smith and the builder to prepare plans for the moving of the garage, the construction of a swimming pool adjacent to the garage and a pool equipment room and garden shed at the rear of the garage. Mr Perini stated that it was agreed that these changes could be effected. He assumed that approval from the council would not be needed having regard to Mr Fitzgerald's earlier advice. According to Mr Perini, Mr Ridley Smith informed him that he had "no doubt that the Council would approve a pool adjacent to the garage". Mr Perini understood that Mr Ridley Smith had formed this opinion following discussions with Mr Pickles concerning the imminent changes to the LEP.
111In reliance upon what he had been told by Mr Ridley Smith, in May 2008, when the foundations for the house were being excavated, an area to accommodate the pool was also dug out adjacent to the garage. Mr Perini stated that he intended to seek approval for the pool following the amendment of the LEP. In the event that the approval was not obtained from council he intended to use the excavated area as a rainwater tank.
112During the excavation of the site, the builder found additional space at the rear of the proposed dwelling. He suggested that the plans be amended to provide further additional use in this location. Mr Ridley Smith prepared amended plans to accommodate this change. He did not tell Mr Perini that these amendments would require council approval. Similarly, he did not tell Mr Perini that enclosing the pergola would require council approval. To the contrary, Mr Ridley Smith indicated to Mr Perini that there would be "no problem" in this regard. Indeed, in respect of each of the unlawful works proposed Mr Ridley Smith prepared amended plans to deal with the variations and he would inform Mr Perini that as long as the changes did not affect anybody they "could be done". Mr Perini conceded, however, that "he did not tell me at any time that the Council's approval was required other than for the swimming pool". Mr Perini specifically recalled Mr Ridley Smith saying to him in relation to variations to the roof height that "anything under a metre" was acceptable to the council.
113In relation to the letter from Mr Ridley Smith to the council dated 16 September 2009, Mr Perini stated that:
(a) Mr Ridley Smith had told him about the discussions that he had had with Mr Pickles regarding changes to the council's landscaped area requirements in the LEP. He agreed "that the question of a swimming pool was to be delayed until such changes were adopted by Council";
(b) he denied that he had asked Mr Ridley Smith to prepare two sets of plans;
(c) he was not aware that plans reflecting amendments made to the approved plans required the approval of the council;
(d) he denied that Mr Ridley Smith advised him that he would require a modification application in relation to the changes to the pergola or that the application could be lodged after the work had been completed. It was Mr Perini's belief that these changes did not require approval;
(e) he did not know what plans had been sent to Mr Fitzgerald; and
(f) he did not deny that all of the changes to the property arose either from discussions between himself and the builder or discussions between himself and Mr Ridley Smith.
114Mr Perini accepted that:
(a) the changes made to the approved development were "suggested by me"; and
(b) he "knew that the swimming pool required development consent".
But he went on to say that at all times he relied on statements made by Mr Ridley Smith and Mr Fitzgerald that there would be "no problem" and that there was no need for any further approval for the changes from the council. Had he known that approval was necessary, then he would have obtained it.
115Finally, Mr Perini expressed his unreserved sorrow for committing the offence and for the inconvenience caused, and accepted full responsibility for undertaking development otherwise than in accordance with the consent.
116Mr Perini filed a subsequent affidavit sworn on 8 August 2011. The affidavit was largely in response to the affidavits of Mr Mossemenear, Mr Ridley Smith and Mr Fitzgerald.
117In respect of the affidavit of Mr Ridley Smith, Mr Perini's written evidence was that:
(a) in all instances changes to the approved development would be discussed with Mr Ridley Smith and his advice was sought as to whether or not these changes could be effected. Mr Ridley Smith would typically reply that they could be;
(b) the replacement of the pergola over the terrace with a roof structure was discussed with Mr Ridley Smith who indicated that it would not be problem;
(c) he denied asking Mr Ridley Smith to prepare a second set of plans. Rather, each change or amendment was discussed and agreed to with Mr Ridley Smith who would then prepare amended plans to reflect the changes;
(d) the pit for the pool was dug at the time the excavation for the house took place. This was before the foundations for the carport were constructed. The concrete form of the pool was poured at the time the foundations for the garage were built. Mr Ridley Smith attended the property at least weekly and Mr Perini believed he was aware that the pool and the pool room were being, or were about to be, built;
(e) at no stage was it ever intended that the roof be constructed as a sloping Kliplok roof. Mr Perini denied that any change to the roof form was at his request. On the contrary, this suggestion came from Mr Ridley Smith. Mr Perini was unaware as to what difference this would make to the height of the roof;
(f) it was the CC plans, prepared by Mr Ridley Smith and approved by Mr Fitzgerald, that reduced the size and extent of the chamfer in the north eastern corner. Mr Perini considered that this would have no impact on the adjoining owner, which was confirmed with Mr Ridley Smith. Mr Perini denied speaking to Mrs Nelson about the matter;
(g) Mr Ridley Smith attended the in-house meeting at the council on 9 February 2010, and told the meeting that the changes that had occurred to the plans were minor and did not require a s 96 modification application;
(h) he denied that Mr Ridley Smith told him that a section 96 modification application would be required to roof the pergola. He believed that because the roofing of the pergola was approved by the issuing of the construction certificate, that a modification application was not necessary. Furthermore, the roofing of the pergola was not related to, or dependent upon, the relocation of the carport or the boundary adjustment;
(i) he had known Mr Ridley Smith for many years and he had undertaken significant architectural work with him in the refurbishment of Mr Perini's property adjacent to the property the subject of these proceedings;
(j) at all times Mr Perini had relied heavily on Mr Ridley Smith's experience and expertise. Prior to the development of the property, Mr Perini had no real experience in dealing with the council;
(k) in 2008 he set up the Perini Family Foundation Pty Ltd, the purpose of which was to ensure that the support he has provided to charitable organisations over his lifetime continues into the future; and
(l) that the approximate costs incurred as a result of his inability to complete the construction of the dwelling were $375,000.
118Mr Perini relied on a number of testimonials from various people attesting to his good character, and in particular, his high standing, and charitable and philanthropic works, in the community.
119Mr Perini also gave oral evidence. Specifically, he was asked about his expressed "regret" for the "situation". His response was that "mentally I have a lot of regret because it's been a bit of a strain and financially a great strain" (T18/08/11 88.33). Mr Perini went on to express remorse for the trouble he caused everybody "plus myself".
120Mr Perini was cross-examined. He conceded that he had always wanted a swimming pool on the property and that he liked pools (T18/08/11 94.32-96.5). Questioned further the following exchange took place (T18/08/11 97.03-97.37):
Q. There is a swimming pool currently on the land if we were to go and have a look today isn't there?
A. No because it's only a swimming pool shell.
Q. Let me understand that. I think the judge is one of the few people in the room that hasn't had the benefit of being to see the pool and so her Honour is at a slight disadvantage but immediately to the eastern side of your garage is a concrete structure dug into the ground with four walls and a floor including steps to let you get into it?
A. Yes.
Q. A very large number of pipes coming into it?
A. Yes.
Q. But it doesn't have tiles or paint or something that you might otherwise apply to a swimming pool?
A. No.
Q. So apart from the fact that it doesn't have tile--
A. It's a shell.
Q. It's a shell?
A. Yes.
Q. Is it a shell of a swimming pool?
A. Pardon?
Q. Is it a shell of a swimming pool?
A. At this stage, yes.
Q. So did you build the shell of a swimming pool?
A. Yes.
Q. And you knew you'd be required not to build the shell of a swimming pool?
A. Yes.
121Mr Perini agreed that at the time he built the pool shell he knew that development consent was needed. This evidence was consistent with a later exchange (T18/08/11 106.33-107.18):
Q. And you haven't taken any steps since the Commissioner's decision to get rid of the pool?
A. No.
Q. In fact what you have done is you've now lodged a new development application for the pool?
A. Yes.
Q. Because you are determined to have that pool?
A. I want to complete a multi million dollar home with a swimming pool. I probably won't ever use the swimming pool anymore but to have a multi million dollar home with a perfect aspect and not have a swimming pool, to me, is wrong. So hence yes I'm anxious to have a pool, whether I'll ever use it, that's a good question.
Q. And that's because since, at the very least, 2003 you have had in mind a design for at least a three level dwelling house with a swimming pool on 29A. You've been trying to achieve that since at least 2003?
A. Yes.
Q. And you didn't want the council to stop you having that dream?
A. I certainly didn't. What the dream of the swimming pool and the house or just the house?
Q. The dream of the swimming pool with the house?
A. No I think the house with a swimming pool is rather than a swimming pool with a house.
Q. I see. Are you happy to have one without the other, whichever way it works out?
A. I'm very happy to have a house without a swimming pool, yes but that house needs a swimming pool.
Q. The house needs a swimming pool?
A. Yeah well a multi million dollar house sitting on a waterfront without a swimming pool is, it doesn't make sense to me.
122With respect to the remaining four elements of the unlawful works, Mr Perini's testimony was as follows:
(a) he denied stating at the meeting on 9 February 2010 that he would not remove any of the unauthorised works;
(b) he denied that it was not until after the council had filed its evidence to the effect that none of the unauthorised works had been removed that he took steps to demolish those works. Rather, he explained that the delay was occasioned by the "demolishing of the so-called unauthorised works had to fit into our builder's program" (T18/08/11 104.29);
(c) that in relation to any proposed changes, he, his wife and Mr Ridley Smith would act as a "troika" in making decisions, however, he agreed that ultimately any changes that went ahead were authorised by him, that is, he was the "final person" (T19/08/11 3.29 and 4.32);
(d) but, the changes authorised by him were based on the advice received from Mr Ridley Smith, this included whether or not council approval was necessary;
(e) he could not recall a conversation with Mr Ridley Smith in which Mr Ridley Smith warned him that the changes Mr Perini was proposing in relation to the roof contained a risk that they might require approval;
(f) he denied telling Mr Ridley Smith that he wanted the corner of the lounge room "squared off". It was his belief that Mr Grill made this suggestion. Prior to making the decision to remove the chamfer it was his wife that spoke to Mrs Nelson who indicated that she was "happy" with the deletion of the splay. Mr Perini did not have such a conversation with Mrs Nelson;
(g) Mr Perini estimated that, with interest on borrowings, the development had cost approximately $869,000 (T19/08/11 32.43). These costs had been incurred as a result of the stop work order issued by the council. However, Mr Perini conceded that the development was nevertheless ongoing and that works were being carried out, and in any event, works would not be able to be completed until the council determined his development application for the pool and he had obtained a building certificate for the garage; and
(h) he had borrowed approximately $5 million to build the dwelling on the property.