North Sydney Council v Serafino [2005] NSWLEC 652 | Case summary

JUDGMENT 1 HIS HONOUR: The Defendant has pleaded guilty to a charge of an offence against the Environmental Planning and Assessment Act 1979, s 125 in that between 9 February 2005 and 9 March 2005 he did commence the erection of a building in accordance with a development consent when a Construction Certificate had not been issued, which conduct was forbidden by s 81A (2) of that Act. 2 The particulars annexed to the summons filed in the proceedings indicate that the relevant works undertaken by the Defendant without the prior issue of the requisite Construction Certificate comprise the following: (a) the casting of concrete founds and floor of the extension at the rear of the existing building; (b) the construction of the external brick cavity walls to a height of approximately 2.5 metres. That work formed part of the approved development consent that had been granted by the Prosecutor as consent authority under the Act for alterations and additions to an existing house located at 12 Edwin Street Cammeray. 3 The Defendant had been appointed by the owner of the property to coordinate the construction process including the arrangements for the obtaining of all necessary certification. The Defendant undertook the works principally as a subcontractor for the approved building extensions required in the concrete construction process, he himself having been engaged in that specialty division of the building industry since he left school and TAFE more than twenty-five years ago. Although most of his work experience in the industry has been in connection with concrete and formwork subcontracting, he has in more recent times been engaged in more general project building work, extending to works beyond his speciality. 4 The Council's evidence, which is not contested, is set out in the Affidavit of Gary Coutts, a building surveyor employed by the Prosecutor. That evidence is presented in chronological sequence starting with his first inspection of the property to which the development consent had been granted. On that occasion, namely 30 November 2004, he noted that minor demolition and excavation works had been undertaken at a time when no Construction Certificate had been issued in respect of the development. At that time a fellow Council employee who had attended the premises with Mr Coutts informed the workmen working on the site that the Council called upon them to stop work as that work had been commenced without the requisite Construction Certificate. 5 I pause to refer to the requirements of s 81A of the Environmental Planning and Assessment Act 1979, subs (2) of which forbids the erection of a building or the commencement of the erection of a building until a Construction Certificate has been issued either by the Council as the consent authority or by an accredited private certifier. The section goes on to refer to the regulations under the Act concerned with the issue of various forms of certificate and provides in subs (7) that the maximum penalty that may be imposed for a contravention of subs (2) is 300 penalty units, that is a maximum penalty of $33,000. 6 The system of private certification was introduced into the planning Act in 1998 when Act 152 of 1997, that is the Environmental Planning and Assessment Amendment Act (the amending Act) came into force. Prior thereto the system in New South Wales was a dual consent system, namely the requirement for development consent for the erection of buildings to be supplemented with an approval to be obtained under the Local Government Act 1993. By the amending Act, the requirement for separate building approval under the Local Government Act was repealed. In its place came the requirement that a number of certificates be obtained in relation to the carrying out of approved development including the requirement for a Construction Certificate. Additionally, for the first time in the State the system for the issue of a Construction Certificate (and other certificates) provided the option of private certification. 7 In the present case the Defendant had assumed the responsibility to obtain the requisite certificates from the private certifier who had been appointed by the owner of the property. That private certifier was a Mr Paul Pierce. Although the evidence does not indicate when he was appointed, the evidence clearly establishes that no relevant Construction Certificate had been issued by Mr Pierce at the time the admitted offence was committed, or indeed at any prior time, because the Prosecutor had issued on 24 March 2005 a penalty infringement notice against the Defendant company for carrying out works including demolition works and excavation works on the approved site without the requisite Construction Certificate and in breach of a condition of the development consent. Those works were works carried out some time at about the time of the 30 November 2004 inspection and Mr Coutts' inspection on 8 February 2005. 8 The amount claimed in that penalty infringement notice has been paid and the present charge, as I have pointed out earlier, relates to works undertaken by the Defendant subsequent to 8 February 2005. 9 Mr Coutts picks up the story in his Affidavit in par 15 and following. When he returned to the property he noted that the additional work, the subject of the present charge, had been undertaken since his last inspection. On that occasion he spoke to the person who appeared to be in charge of the work and informed him that the Council had still not received the Construction Certificate and the work should not be undertaken. The employee, who named himself, responded by saying that he had been told by his boss that he was allowed to do the work. He volunteered the name of the private certifier, Mr Pierce and his telephone number, whereupon Mr Coutts spoke to Mr Pierce on the telephone informing him, and I am quoting from par 18 of the Affidavit, that significant work had been carried out on the job, and asking him whether he had issued the Construction Certificate, to which Mr Pierce said, "No I haven't issued it yet." When Mr Coutts said, "There are workmen on-site despite previous advice from Council to carry out no work until a Construction Certificate has been obtained and are you aware of that the work being carried out?" Mr Pierce is recorded as saying "No, I was unaware that work had commenced on the site." 10 All this took place whilst Mr Coutts was on the site and the employee then handed the telephone to Mr Coutts with the Defendant on the other end. Mr Coutts said to Mr Bianco, the Defendant, and I quote from par 18 again, "I am surprised works have recommenced. My recent letter to you stated very clearly that you should not recommence any work on-site until you have obtained a valid Construction Certificate." Mr Coutts records the Defendant's response, "Paul Pierce told me it was okay to recommence work," to which Mr Coutts responded, "No work in relation to the development approval is permissible without a Construction Certificate. You must cease work on the site." The Defendant is recorded as responding, "Would it be okay if we finish off the day?" to which Mr Coutts responded, "That would be unwise, Council is likely to take serious action in the light of all the circumstances." The Defendant is recorded as saying, "Okay I'll take all my men off the site and they won't do anymore work until I get the Construction Certificate." 11 The Council's evidence does not materially refer to matters occurring after that conversation but it may be inferred that thereafter no further work was undertaken by the Defendant before the Construction Certificate ultimately was issued. 12 The prosecuting solicitor has informed me that in recent times, that is, since the swearing of Mr Coutts' Affidavit on 16 May 2005, the unlawful building work has been regularised by the obtaining of a Construction Certificate and by the obtaining of a building certificate. 13 These subsequent facts however are not relevant to the present charge except to the extent that they indicate that the work carried out in breach of the injunction contained in s 81A(2) of the Act was ultimately sanctioned by the Council by the issue of a building certificate and the requisite Construction Certificate. 14 The prosecuting solicitor has submitted that the admitted offence in the present case should be assessed at the upper end of the spectrum of gravity for the offence charged in as much as the evidence establishes the Defendant's long involvement in the building industry (albeit principally as a subcontractor involving concrete and formwork). Further, the prosecutor cites the Defendant's disobedience of the several injunctions issued to him by Mr Coutts that work should not be carried out until the requisite Construction Certificate had been issued. There is in Mr Coutts' Affidavit the assertion by the Defendant when spoken to by Mr Coutts on 9 March that the private certifier had informed the Defendant that it was okay to recommence the work. To that Mr Coutts responded by insisting upon a cessation of work on the site without the requisite Construction Certificate having issued, he having moments earlier spoken to the private certifier and learned from him that he had not issued it and had not been made aware that work on the site had already commenced. 15 This matter has not been further explored in the evidence and I am left in some doubt as to precisely what it is that did or did not pass between the private certifier and the builder, the Defendant in the present case. Nonetheless the Defendant accepts responsibility for the charge even though, as has been put in a submission on his behalf, at the relevant time he was not particularly au fait with the obligations that he had assumed in relation to obtaining the requisite Construction Certificates and other paperwork. 16 The evidence does not explain satisfactorily, if at all, how it was that the property owner came to delegate that role to a concrete subcontractor. It strikes me to be an imprudent course of action for a property owner. Equally imprudent was the Defendant's acceptance of the obligations involved. Such obligations far transcended in nature the type of work for which the Defendant is obviously long experienced in the building industry. Indeed Mr Thompson, who gave character evidence on behalf of the Defendant, frankly said that the Defendant had been very foolish. 17 The initial folly if I may so say was to assume paperwork responsibility in an area of this law which is somewhat complicated and not really for the uninformed. Nonetheless it has been put on behalf of the Defendant that it has been necessary for him to broaden his services and to the extent to which he continues to assume responsibility for the complicated paperwork involved in private certification of building projects, the Court has been informed that he now employs someone with skill and experience in that area and he himself is not involved in that paperwork. 18 Other matters in mitigation urged upon the Court on behalf of the Defendant are his personal circumstances in terms of his capacity to pay a substantial fine and legal costs sought by the Prosecutor. He is forty-four or forty-five with three younger children dependent upon him and is seeking to re-establish his business and perhaps extend it after it has experienced difficult times recently with a significant injury to his brother, with whom the Defendant has continued the business first established by their father many years ago. 19 The Defendant has entered a plea of guilty at an early occasion in the proceedings and asked the Court to consider his character references. I have already referred to Mr Thompson's character evidence in favour of the Defendant. That evidence is substantially born of work experience with the Defendant over a period of the past decade or so and that evidence, which is not challenged and which I accept, attests to the reliability and responsibility of the Defendant in undertaking specialised concrete subcontract work in the building industry and also his good character in undertaking those responsibilities in a responsible manner. 20 I also have a reference from Father Zammit, the Parish Priest of Our Lady of Victories Parish in Horsley Park. Father Zammit attests to knowing the Defendant for the past six years, to the Defendant's good family standing and participation in the parish community, to his reliable character, and his readiness to help and offer assistance. Father Zammit describes him as a very good and trustworthy friend, highly respected in the community and obtaining Father Zammit's high recommendation. 21 Having considered all of the evidence it is clear to me that the Defendant's behaviour and conduct involved in the commission of the offence speaks more of foolhardiness than contumeliousness. I am satisfied that his disobedience of the law has not involved a blatant cavalier disregard for authority but is born principally of an ignorance of the responsibilities in which he engaged over and above the specialised work of concrete subcontracting, of which he is vastly experienced. I am satisfied that despite his branching out into more general building work that he now has on staff a person well acquainted with the requirements of the law concerning the issue of all manner of certification of development as is provided by the Environmental Planning and Assessment Act 1979. 22 Overall I am satisfied that his foolhardiness explains principally his failure to comply with Mr Coutts' warnings and injunctions. As I have said, the evidence concerning precisely what did and what did not pass between the private certifier Mr Pierce and the Defendant has not been explored in this case but it would seem from what little evidence is given that the Defendant, for whatever reason, good or sound, placed some reliance upon what he understood the private certifier to be telling him. 23 I am not satisfied that the Defendant was not telling the truth when he said to Mr Coutts that he had been given the okay to resume work by the private certifier, although I must confess that the evidence on that matter is skimpy and unsatisfactory. Nonetheless it was a matter that the Council could have taken up with the private certifier and the only evidence of investigation of the private certifier's actions and conduct in the matter is confined to a telephone call between himself and Mr Coutts on 9 March. It seems to me that following that call when Mr Coutts immediately thereafter spoke to the Defendant on the telephone and the Defendant told Mr Coutts that the private certifier had given him the okay to recommence the job, that that matter could and perhaps should have been taken up in the investigation of the matter with the private certifier. For whatever reason that does not appear to have happened and at the end of the day the evidence on that matter is not satisfactory. 24 Nonetheless the tenor of the communications between the Defendant and Mr Coutts is such as to lead me to the conclusion that there was no deliberate attempt on the part of the Defendant to deceive Mr Coutts or to mislead him. Any such miscreant behaviour would be entirely contrary to the evidence of responsible, trustworthy character that has been declared in his favour. 25 It is clear to me from looking at the Council's evidence that after Mr Coutts discovered that substantial work had been carried out on the approved building site between February and March of this year that the Council regarded the breach of the requirements of the Act to obtain a Construction Certificate to be quite blatant and brazen having been content hitherto to deal with the Defendant's defaults by penalty infringement notice. The Council resolved to prosecute the Defendant for breach of the law in this Court and in large measure the Defendant brought that action upon his own head. 26 The offence is one which knows no middle ground in the sense that the statutory requirement that no work be carried out on an approved project until the requisite Construction Certificate is issued, is absolute. A Construction Certificate is required. In this case work was carried out in the absence of it. The fact that it ultimately issued and was complemented by a building certificate means that the building work has been spared and the owner of the property has apparently not been implicated. Nonetheless there is the need for those engaged in the building industry to comply with the requirements of the planning laws and in particular the requirements for the obtaining of a Construction Certificate before building work is undertaken. 27 Whereas I am satisfied that the Defendant will not re-offend in this respect having learned a valuable and costly lesson in the present case there is a need for the penalty to reflect general community education in the requirements of the law and for the penalty to reflect general deterrents. If building works were allowed to be undertaken in defiance of the obligation for the issue of the appropriate certificates the system of planning controls would be considerably undermined. 28 The maximum fine I have earlier mentioned is $33,000. The Prosecuting Solicitor has asked for a fine commensurate with the facts of the case, including the Defendant's subjective culpability, within the range of $20,000 to $25,000. The Defence submission is one that calls for leniency on the part of the Court in favour of the Defendant reflecting his personal circumstances, his outstanding record in the building industry over more than a quarter of a century, his imprudence rather than wilful disobedience of the law in assuming responsibilities with which he was not au fait, the fact that it is the first offence committed by him, his contrition and his character. 29 In my view these mitigating factors justify a significant reduction in penalty and whereas without them a penalty within the range sought by the Council would appear to be entirely justifiable, giving full effect to them, which I would think is appropriate for the reasons I have outlined, I have come to the conclusion that the appropriate penalty in the present case is to record a conviction and to impose a penalty of $10,000 for the conviction. 30 In addition to that penalty I order pursuant to the provisions of the Criminal Procedure Act that the Defendant pay the Prosecutor's reasonable legal costs in the sum agreed or failing agreement as set forth in that Act. 31 The exhibits can remain with the Court papers.

North Sydney Council v Serafino

At a glance

Court

Decision date

Before

Source

Judgment (13 paragraphs)

Parties

Cited By (1)