Preston v Zapantis

Disposition of the Appeal

1. For the reasons that follow, the appeal against conviction, and therefore, sentence, is upheld. The council must pay Mr Preston's costs.

Non-Contentious Facts Giving Rise to the Issuing of the PIN and CAN

1. On 31 January 2012, the council granted the following development consent (subject to conditions which are not presently material) to Mr Preston in respect of development ("the consent") at Lot 2, DP 1004918, 33 Booth St, Annandale, New South Wales ("the property"): Alterations and additions to an existing commercial premises including stairs and deck to the rear and internal alterations.
2. The copy of the consent before the Local Court did not have any plans attached to it. The development application ("the DA") was also not before that Court.
3. On 20 February 2014 at 11.15am, a site inspection of the property took place by Mr Zapantis and another council officer. Observations made during the course of the inspection revealed that, according to an earlier PIN issued on 2 April 2014, "unauthorised building works had occurred to the internal part of the premises", as outlined in a letter to Mr Preston of the same date. That letter was not before the learned magistrate. The works were not in conformity with the consent and thus the earlier PIN was issued. On that occasion, Mr Preston elected to pay a fine of $1,500.
4. As a result of the inspection a verbal 'stop work order' was given by the council. This was subsequently formalised by the council issuing an order to Mr Preston under s 121B of the EPAA ("the s 121B Notice"). The order was to (emphasis added): Cease all unauthorised building works at LOT 2 DP 1004918 SUBJ TO ROW & CROSS EASEMENT, 33 Booth Street, ANNANDALE NSW 2038
5. The s 121B Notice stated that Mr Preston had until 3.30pm on 20 February 2014 to comply.
6. The reasons for the order were given as (emphasis added): 1. An inspection of 33 Booth Street, ANNANDALE NSW 2038, by Council's Compliance Officers, at approximately 11.15am on Thursday 20 February 2014, revealed unauthorised building work was taking place at the premises, including: a) Removal of shop front b) Removal of internal ground floor c) Excavation beneath ground floor level d) Installation of retaining wall in Dincel construction e) Construction of lower ground floor slab f) Removal of fill adjacent to party wall (western) g) Strip out of building including ceilings h) Core filled Dincel constructed to the Western and Eastern Boundary walls. i) Additional excavation to lower ground floor not in accordance to approved plans
7. There is no suggestion by Mr Preston that the s 121B Notice was not properly served upon him.
8. Prior to the hearing in the Local Court, Mr Preston lodged a s 96(2) application to modify the consent ("the modification application").
9. The modification application was not before the learned magistrate, however, the notice of determination of the modification application was. In short, the application was approved on 14 October 2014 ("the modification approval"). It attached a revised copy of the consent, as modified. The approval stated that the modification: … seeks consent for an extension of the basement level (with underpinning), internal layout and openings and materials changes, new shop front and new stormwater drainage plans.
10. Again, no plans were attached to the modification approval before the court below.
11. At no point were particulars provided to Mr Preston by the council as to what constituted the "unauthorised works" the subject of the contravention of the s 121B Notice.
12. It appears, however, from the transcript in the Local Court that the impugned works were those undertaken by Mr Preston to the ground floor and the ceiling of the lower ground floor (the same structure) (T7.01). In short, the council alleged that the ground floor was removed and replaced by Mr Preston at some point after 3.30pm on 20 February 2014, but before 10am on 27 May 2014.

Proceedings Before the Local Court

1. Before the Local Court, Mr Mark Bonanno, solicitor, appeared on behalf of the council, and Mr Preston appeared for himself.
2. The only witnesses to give evidence were Mr Andrew Zapantis, the council's Compliance Officer, and Mr Preston. No written evidence was provided to either witness. Each witness was cross-examined.
3. It appears from the transcript that Mr Preston's defence was essentially two-fold: 1. first, he stated that he had complied with the s 121B Notice insofar as he had ceased all unauthorised works and that he had only continued to undertake authorised works. He repeatedly stated that as far as he was concerned (by reference to "the DA drawings") he was authorised to build the ground floor (see, for example, T16.20) and to continue to work on the ceiling of the lower ground floor; and 2. second, that the unauthorised works specified in the s 121B Notice and presumably the subject of the PIN giving rise to the proceedings in the court below, constituted works that were the subject of the earlier PIN (T7.25), in respect of which he had already paid a fine of $1,500.
4. It is fair to say that in the Local Court Mr Preston did not fully comprehend exactly how he had contravened the 'stop work order'. This is a most unsatisfactory state of affairs for any defendant facing criminal proceedings.
5. From the evidence at first instance, it emerges that on 20 February 2014, Mr Zapantis inspected the site and saw "excavations that had occurred to the lower ground level that should not have been conducted", in addition to other allegedly unlawful building works (T2.37). This resulted in the s 121B notice being issued later that day and the earlier PIN being issued. Photographs were taken of the inspection by Mr Zapantis.
6. Then on 30 April 2014, during the course of an inspection of the property in relation to the s 96 modification application, another council officer contacted Mr Zapantis and notified him that works had been undertaken to the ground floor level, which, in that council officer's opinion, were contrary to the s 121B Notice. The next day, the principal certifying officer, Ms Kerry Hunt, advised Mr Zapantis that "she did not provide Mr Preston any authority to conduct any works. Nor did the structural engineer" (T4.17). Ms Hunt did not, however, give evidence in the court below.
7. A number of emails were tendered before the learned magistrate purporting to confirm that there had been no approval given for these additional works. Apart from Mr Zapantis the authors and recipients of these emails were not witnesses in the proceedings.
8. On 27 May 2014, Mr Zapantis conducted an inspection of the property with Mr Preston. Mr Zapantis "observed works that had been undertaken to the ground floor level…the flooring and the ceiling. There was works conducted to the ceiling level of the premises which contradict - which was contrary to the stop works order that I had issued to Mr Preston" (T4.33-4.38). Photographs were taken by Mr Zapantis of what he observed during the inspection.
9. Additional evidence was given by Mr Zapantis concerning the unauthorised works the subject of the earlier PIN, but this was plainly irrelevant to the offence charged, which was concerned only with the unauthorised works taking place between the issuing of the s 121B Notice and 27 May 2014.
10. It is convenient at this juncture to make several observations about Mr Zapantis' evidence-in-chief, the only potentially admissible evidence (the opinions proffered by Ms Hunt as repeated orally by Mr Zapantis amounting to impermissible hearsay), relied upon by the council in its prosecution of Mr Preston: 1. first, absent any attempt by the council to properly qualify him, his evidence was arguably opinion evidence contrary to s 79 of the Evidence Act 1995 insofar as it was not demonstrated that it was based on any specialised knowledge, training, study or experience. The description of him as the council's "Compliance Officer" did not cure this problem (Dasreef Pty Ltd v Hawchar [2001] HCA 21; (2011) 243 CLR 588); and 2. second, no proper basis was provided by Mr Zapantis to express the opinion that the works he observed on 27 May 2014 were "unauthorised works" (emphasis added) in breach of the s 121B Notice. No attempt was made, as was required, to properly identify and prove the facts observed by Mr Zapantis underlying his conclusion that the 'stop work order' had been breached by, for example, comparing the works he observed with any plans or drawings attached to the consent or modification approval, or even to the photographs he had taken, which were simply tendered without explanation as to what they depicted or where in the building they were taken. It must be recalled that the s 121B Notice only prohibited "unauthorised works" and not all works. The facts upon which the opinion was formed were neither adequately made explicit or satisfactorily established (Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705 at [85] and HG v The Queen (1999) 197 CLR 414 at [41]).
11. At this juncture, therefore, the learned magistrate should have rejected Mr Zapantis' evidence in its entirety (Mr Preston was, after all, self-represented), with the consequence that the case against Mr Preston would have collapsed resulting in a dismissal of the charge.
12. However, this did not occur and Mr Preston proceeded to, somewhat detrimentally, from his perspective, cross-examine Mr Zapantis.
13. The cross-examination revealed that, with the greatest respect to his Honour undoubtedly driven by demands of efficiency, insufficient latitude was given to Mr Preston, a litigant in person, to question to Mr Zapantis to the best of his ability. Indeed in some instances, his Honour proceeded to ask the questions himself of Mr Zapantis, a dangerous course in a criminal trial. The following exchange is illustrative (T6.20-7.28): Q. Mr Zapantis, at what point - when in terms of the cease work order, the information that you've actually given to us now, what actually relates to the cease work order, because that other evidence that you just gave actually relates to another matter that we have just - that I thought was withdrawn. A. I don't really understand your question but - HIS HONOUR Q. On 27 May, you did a site inspection and you observed certain works to the ground floor which you said were not certified, that is the flooring and the ceiling. Is that right? A. That's correct. I - on 20 February, I observed works that were unauthorised. Q. Yes, but you here about - A. Part of those works - Q. What I am dealing with is failure to cease specified building or subdivision work on 27 May. A. That's correct and I was just going to state that in that stop works order, I can't recollect which - in order, alphabetical order it was but part of it states the ground - works to the ground floor level and when I arrived at the premises on 27 May, I observed works that had been undertaken to the level which is contrary to the stop works order given as my site - my field inspection sheet. Also on 20 February, I advised in my notes - in the field inspection sheet - I advised Mr Preston that he was not to undertake any further works to the premises. Q. If you have a look at exhibit 2, can you state where in exhibit 2 the particular matters are that were not complied with? A. Yes, your Honour, certainly. "(b) Removal of internal ground floor". There was removal of shop front, strip out of buildings including ceilings. HIS HONOUR: Thank you. ACCUSED: What I'm trying to get to is that everything prior to the 27th really has very little to do with - HIS HONOUR: You can make those comments later but why we are here at the moment is because it is alleged that you didn't comply with a particular order in that you removed internal - the removal of internal ground floor. ACCUSED: That would have - HIS HONOUR: Removal of shop front and strip out including ceiling. That's why we are here. WITNESS: Your Honour, can I just answer something? If we - if you compare the 20 February photos and the 27 May photos - HIS HONOUR: Counsel will do that later. We are just here asking questions at the moment. That's the answer to your question. Right? ACCUSED: No, your Honour, because I'm - it's failing to cease the works. That work had already been done. HIS HONOUR: You can make that submission later. Do you want to ask any more questions?
14. Furthermore, in my view, Mr Preston ought to have been permitted to ask the questions he thought were relevant, with the learned magistrate only intervening, after the question had been asked in order to reject objectionable questions.
15. In any event, the following further cross-examination then took place of Mr Zapantis by Mr Preston (T8.05-8.15): Q. Can you describe what the unauthorised building works were please to be ceased? A. Okay. If you compare the photos of 20 February to that ground level and then the photos taken on 27 May, you will observe that there were works undertaken with the construction of that, the flooring and the ceiling of that ground floor level. Q. I understand that but the DA drawings show that there's a floor there. HIS HONOUR: But you don't get to argue with him, all right. You ask him a question and he answers it, you ask him a question and he answers it. That's how we work.
16. With great respect to the learned magistrate, it is difficult to conceive - admittedly this remark is based only from reading the transcript, which never reveals the whole truth of what transpires in a courtroom - how the last question from Mr Preston was argumentative. The question was, moreover, not unimportant. It was an attempt by Mr Preston to elicit evidence from Mr Zapantis that, by reference to the consent drawings, the allegedly unlawful building works that he had engaged in were not in fact unauthorised. This was central to the case brought against him.
17. Mr Preston then asked Mr Zapantis (T8.20-9.23): Q. Mr Zapantis, who actually reviews the DA drawings to then determine whether or not that structure should actually be there or not? A. The planners are actually responsible for the consent. I work in a compliance department and when I receive a complaint about unauthorised works, I have access to council's database and I retrieve the DA and the plans associated with that development. Q. Did you do that? A. I did, and I observed that on the day of the 20th I observed internal walls had been demolished on that ground floor level when they were to be retained. Q. Just back to the work that was supposed to be ceased, is there a list that says that you're not supposed to do these things because the letter basically says to cease unauthorised building works? Is it your opinion that the floor, those walls are unauthorised works or they are indeed part of the DA? A. They're over and above the DA and the consented plans. Q. How did you know that? A. Because I looked at the DA and the plans, associated plans, and I was able to ascertain that those works were not in line with what was consented on those plans. I also spoke to the principal certifying authority, Kerry Hunt, who also confirmed that those works were not authorised. Q. What's your qualification? What actually qualifies you to make that sort of judgment? Do you have a building degree? A. I don't have a building degree. Q. So how would you know? A. Because I have done a course on reading plans and I've worked in the building industry before and have constructed residences from ground up. Q. Did anyone other than yourself - A. And I've also been an owner builder so I've built my own house. Q. Has anyone else influenced you in any way to make those statements. … Q. So when you look at the drawings with the DA, what is it about them that you felt indicated that floor shouldn't have been built? A. Walls have been removed. When I arrived there on 20 February, walls had been removed when they clearly - Q. But were those walls part of the original DA? A. That's correct, they were part of a DA and to me, from recollection, they clearly showed that they needed to be retained. When I arrived on 20 February and spoke to you, I did issue you a caution and my site inspection notes will reflect that I advised no further works were to be taken to the site. When I arrived on 27 May I observed works had been undertaken to the ground floor level.
18. From this evidence emerges the following: 1. first, that Mr Zapantis was qualified to give his expert opinion in the sense that it was demonstrated that he had the necessary expertise to proffer the opinion that he did; and 2. second, that Mr Zapantis' evidence with respect to the works to the ground floor the actual subject of the charge was confusing and ambiguous. With the exception of one reference to "the floor" by Mr Preston (at T8.33), the questions and answers were directed to the demolition of the internal walls, which was not, it was agreed, the subject-matter of the offence. In other words, a fair reading of Mr Zapantis' evidence was that he came to the conclusion that it was the work undertaken on the internal walls that was unauthorised by comparing what he had observed on 27 May 2014 and the consent, the plans and associated plans. In other words, there is no clear statement by him that he compared the consent, the plans and associated plans with what he observed on 20 February, and subsequently on 27 May 2014, to reach the conclusion that the work undertaken on the ground floor was unauthorised.
19. Finally, under questioning from Mr Preston, Mr Zapantis stated (T10.29-11.37): Q. No, but I was talking about when you were there on the 27th? A. Yes, I'll answer again for you that I looked at the plans, looked at the consent, I liaised with Kerry Hunt and also which included the works that I observed on the day as I ascertained that the works, as specified in that order that had been provided were unauthorised. Q. So that was --- A. On 20 February Q. So that was 20 February A. Correct. Q. Did you see the shopfront? A. It wasn't there when I arrived. Q. It was down the back, but anyway. A. But it had been removed. Q. Removal of the internal ground floor? HIS HONOUR: That's not a question is it. Q. I was just saying like you agree that these are all correct? A. Correct. As per my photos and as per the order they align, and if you compare that with the 27 May photos you will see that there was works undertaken over and above that 20 February. If you compare the photos - Q. Yes, I understand. A. -- to the ground floor level on 20 February to 27 May, you will see that works were undertaken over and above that date. Q. So the photo from the 27th, its basically just showing us why, your photo that you tender to the Court -- A. No - HIS HONOUR: You can make your statements later. Okay? You cannot argue with the witness. ACCUSED: No, I'm just trying to ask - HIS HONOUR: Don't make any statements. Just ask questions. You are stuck with the answer he gives and you can ask another question. ACCUSED: Q. So on 27 May your observation was -- A. That works had been constructed when a stop works order was provided to you which also flows on from my site inspection notes, my field inspection sheets which, to recollection, I clearly stated that no further works were to be undertaken. Q. So I'll come back to that one, so what did you see on the 27th then? A. I saw works that had been constructed to the ground floor, which was the flooring and the ceiling had been constructed. Q. I understand. A. -- as per the photos I have taken.
20. Again, I do not accept that Mr Preston, by attempting to question Mr Zapantis in this manner, was arguing with the witness or making statements.
21. Again, Mr Zapantis's evidence is, in my view, equivocal as to whether his consultation of the plans and consent occurred by reference to the 20 February, or 27 May, 2014 inspection. It is possible to infer, from his evidence for example, that some of the impugned works to the ground floor comprising the offence with which Mr Preston was charged occurred on or before 20 February 2014, that is to say, before the s 121B Notice was issued.
22. Mr Preston then proceeded to give evidence. His evidence-in-chief revealed that it was his firm understanding that the ground floor works were at all times authorised (T16.18-16.24): In terms of the terminology, my understanding of ceasing unauthorised work is just that. If there's something that I'm not supposed to be doing, then fine; but as far as I'm concerned the DA drawings that were submitted show that there's supposed to be a floor there. In order to get that floor in and do the work to the ground level, you need to remove the shopfront. I kept the shopfront; it was on site, it would have been put back in. I changed material from Dincel; I mean, the PCA can certify that on the spot.
23. In addition, the cross-examination of Mr Preston revealed a fundamental misunderstanding by the council as to the terms of the s 121B Notice, namely, that it applied to all building works and not all unauthorised building works on the property (T18.09-18.17, T19.46-19.47 and T20.14-20.25): Q. But you would agree that you were under the clear impression from the council not to do any other work after 3.30pm weren't you that day? A. No-one authorised building work. That was my understanding. Q. No work at all? A. No: no-one authorised work Q. I put it to you that Mr Zapantis told you no further work after 3.30pm? A. Well, I'm looking at it and it says "caution given". … Q. But you were aware on 20 May that you were not to do any further works? A. I was aware that I'm not to do anything else that was unauthorised. … Q. No, please listen to this. But you were aware that until that modification application had been processed you were not at liberty to do the work? A. No, I was not. As it says on the letter from Andrew, no unauthorised works are to be done. Q. And these are unauthorised works? A. That's your opinion of it. I'll leave it with the Court to decide whether it is or not. Because I've also got a duty of care as a builder to make sure that actually that building is constructed correctly and properly. Q. You do, yes. A. And also that it doesn't fall down.
24. This misconception may explain the paucity of evidence proffered by the council in the court below to prove that the construction works that took place at the property after the service of the s 121B Notice were new (that is to say, not previously caught by the earlier PIN) unauthorised works, and not merely building works, which Mr Preston was, as he constantly and correctly stated, permitted to undertake.
25. During his final address to the court below, Mr Preston again reiterated his firm belief that the work to the ground floor was not unauthorised (T25.17-25.27): HIS HONOUR: Yes, but let's go back to this question. The work that you did to the floor and ceiling, now you have heard all the evidence and seen the various documents, that was work that had not been authorised or was it work that had been authorised? ACCUSED: In the letter, it doesn't actually state that I can't build the floor. It just says I'm not allowed to do any unauthorised works but - and that's what I was trying to find out, is - I mean, if council are saying that the floor was unauthorised, then I suppose I am guilty of carrying out unauthorised works but I still haven't really sort of been able to work out whether or not it was or wasn't authorised.
26. The learned magistrate's ex tempore decision in relation to both conviction and penalty was sufficiently brief that it may be repeated in its entirety (T26.16-27.16). It shows that the confusion of the council flowed into the reasoning of Court below: HIS HONOUR: Mr Preston has received a court attendance notice for failing to cease specified building work or subdivision work. On 20 February, he was issued with an order to cease all unauthorised building work at the site, which is 33 Booth Street in Annandale because an inspection of the site revealed certain unauthorised works, including the stripping out of building including ceilings and the removal of internal ground floor. Mr Preston was given approval to continue with the pouring of a slab, which I presume was the lower ground floor. ACCUSED: It is the lower ground floor, your Honour. HIS HONOUR: In addition, and on advice of his engineer, he also constructed flooring on the ground floor and ceiling on the ground floor. The works were subsequently the subject of a s 96 modification which was approved in October 2014. On 25 March 2014, Kerry Hunt, who was the principle certifying officer, said: "Council reiterates that until a section 96 application is lodged for the proposed works and details as indicated to yourself and your architect, there is no work that is to be undertaken on the site unless the flooring matters are clarified in writing and by submission of details. Without going through the specific details, it said: "Until the details are required above are submitted, the stop work order is still in force. Please lodge the section 96 application without delay". The evidence of Mr Zapantis is that on 27 May, when he visited the site, work had been contrary to the order of council without a s 96 modification being approved and on that basis, I am satisfied beyond reasonable doubt that Mr Preston failed to cease the specified building work or subdivision work and as a consequence of Mr Zapantis visiting the site on 27 May 2014, he was able to observe that work had been done contrary to the council orders to cease work prior to a s 96 application being made, so I find the offence proved. In terms of the appropriate fine a penalty infringement notice is an administrative process, which is entirely different from a court process. A court process takes place when a person, having been issued with a penalty infringement notice, elects to have the matter heard in court and once the matters are brought to court, the maximum penalty that applies is $110,000. Mr Preston is an experienced builder, on his own evidence has no prior matters. On this occasion, however, he went ahead with works which had not been approved and were required to be considered in retrospect and the point of the council regulations is to ensure that work to be done is to be done in a safe way, rather than to be in a situation of approving work which has already been done, and as it clearly states in the email of 25 March, Mr Preston was being exhorted at that point to make a s 96 application, which he did not do. There is a need for deterrence in relation to matters of this kind. I have to take into account the maximum penalty which does apply and in relation to that, I consider that the appropriate penalty is $12,000 and Mr Preston has 28 days to pay it.

Nature of an Appeal Against Conviction and Sentence in this Court

1. In Cameron v Eurobodella Shire Council [2006] NSWLEC 47; (2006) 146 LGERA 349 Preston J elaborated upon the nature of a Class 6 appeal (at [10]-[12]). A similar exercise was undertaken by me in Thomson v Hawkesbury City Council [2009] NSWLEC 151 (at [43]-[44]).
2. In summary, an appeal against conviction is made to this Court as of right under s 31(1) of the Crimes (Appeal and Review) Act 2001 ("the Appeal and Review Act").
3. An appeal against conviction is dealt with by way of rehearing on the basis of certified transcripts and evidence adduced in the Court below (s 37(1) of the Appeal and Review Act). The Court may grant leave to adduce new evidence only if it is satisfied that it is in the interests of justice to do so (s 37(2) of the Appeal and Review Act and see Advanced Arbor Service Pty Ltd v Strathfield Municipal Council [2006] NSWLEC 485 at [34], Kari & Ghossayn Pty Ltd v Sutherland Shire Council [2006] NSWLEC 532; (2006) 150 LGERA 231 at [13] and Fletcher v Byron Shire Council (No 2) [2010] NSWLEC 226).
4. In an appeal against conviction the Court considers the matter afresh and resolves for itself the ultimate issues for determination. It is not necessary for the Court to find fault with the lower court's reasoning (Gerondal v Eurobodalla Shire Council [2009] NSWLEC 160 at [6]). The Court may determine an appeal against conviction by setting aside the conviction or by dismissing the appeal (s 39 of the Appeal and Review Act). The role of this Court is to consider for itself Mr Preston's culpability upon the evidence that was tendered in the court below, in addition to any further evidence adduced with leave on the appeal.
5. There is, similarly, an appeal as of right against sentence pursuant to s 31(1) of the Appeal and Review Act. However, there is a distinction in the Appeal and Review Act between how appeals against sentence and appeals against conviction are to be conducted by appellants insofar as there is no equivalent to s 37 of the Appeal and Review Act applicable to appeals against sentence. The Appeal and Review Act is therefore silent on the nature of an appeal against sentence, and, in particular, whether leave is required to adduce fresh evidence on the appeal.
6. In Terrey v Department of Environment, Climate Change and Water [2011] NSWLEC 141 (at [33]-[51]) the Court discussed this legislative inconsistency and concluded that (at [51]): Notwithstanding the legislative lacuna on the nature of an appeal against sentence only under the Act, the Court proceeded on the basis that the appeal was by way of rehearing, absent the limitation on adducing fresh evidence contained in s 37(2). Thus the Court resolved for itself the ultimate issues for determination, in this case, the appropriate sentence to be imposed for the offence …
7. Consequently, an appeal against sentence proceeds by way of rehearing with the appellant not having to seek leave of the Court to adduce fresh evidence.
8. Importantly, especially in the context of this appeal, an appeal against conviction or sentence is not for error of law (AJS Hotel Management Pty Ltd v Lismore City Council [2013] NSWLEC 10 at [69]). It is not incumbent on Mr Preston to establish that a conclusion was not open to the court below "in the sense of being a conclusion to which on the evidence, it should not have come. It is merely necessary to persuade this Court on a review of the evidence that guilt is not, to the necessary standard proved by the prosecutor" (Histollo Pty Ltd v Director-General of National Parks and Wildlife Service (1998) 45 NSWLR 661 at 678C).
9. Regrettably, neither party appeared to be aware of the Court's role in a Class 6 appeal. Thus, the amended summons identified traditional grounds of appeal resulting in error at first instance and the written submissions of both parties engaged only these purported errors thereby providing little assistance to the Court, and, more significantly, Mr Preston.

Application to Rely on Fresh Evidence by the Council

1. Before me the council made an application to rely on fresh evidence comprising of an affidavit from Mr Adrian Krekacs sworn on 10 July 2015. Mr Krekacs was the engineer engaged by Mr Preston to oversee the building works at the property. The affidavit had been filed by Mr Preston in these proceedings but no application was made by him to rely upon it.
2. The affidavit had annexed to it the development application, including the plans attached to that application which were dated 28 May 2012. Mr Krekacs had prepared the development application and the drawings. According to his evidence, in the drawings no works to the ground floor were documented. On 20 February 2014, however, he inspected the property and noted that the ground floor had been demolished and that there was an excavation to the sub-floor. In order to stabilise the building he issued a written site instruction for the immediate construction of new ground floor joists. This was completed. On 21 February 2014, new drawings were requested by Mr Preston, and were issued by Mr Krekacs on 3 March 2014. These drawings showed the new ground floor joists. Then, on 18 March 2014, following another inspection of the property by him, Mr Krekacs issued another written direction to construct a new ceiling over the lower ground floor to achieve an adequate fire separation between that floor and the ground floor.
3. On its face, this evidence purports to indicate that works to the ground floor that were not authorised by the original consent were undertaken by Mr Preston in the period between 21 February and 18 March 2014. At first blush, the evidence, if admitted, would appear to be prejudicial to Mr Preston.
4. In my opinion, it was not in the interests of justice to admit the affidavit. This is because Mr Krekacs was not available for cross-examination. Clearly it was, as Mr Peter Rosier, appearing for Mr Preston submitted, material that Mr Preston would seek to challenge, or at the very least, clarify. To admit the evidence would have, in all likelihood, resulted in an adjournment of the proceedings and a delay in the finalisation of what is not a complex matter. Although the affidavit was drafted on behalf of Mr Preston, it was filed for penalty purposes only, whereas the council was seeking to rely upon it to supplement deficiencies in its evidence with respect to liability. In my view, it would be unfair to Mr Preston, on appeal, for the prosecutor to rely on material that was plainly available to it earlier (the DA, the drawings and the written site instructions could have been obtained and tendered by the council in the court below) and that could, and should, have been tendered before the learned magistrate. Had this occurred a different course may have been taken below.

The Council Has Not Proved Beyond Reasonable Doubt that Mr Preston Engaged in Unauthorised Works in Contravention of the s 121B Notice

1. The council conceded before me (T47.17, 48.10 and 48.17) that the best evidence it relied upon to demonstrate that during the relevant period Mr Preston had contravened the s 121B Notice by undertaking unauthorised buildings works was the oral evidence of Mr Zapantis quoted above at [33] (T8.05-8.15) and [35] (T9.23).
2. To be fair to the council, this should be supplemented by the evidence quoted above at [31] (under questioning from the learned magistrate: at T6.42-6.44) and [37] (under questioning from Mr Preston: at T11.32-11.37).
3. The council also relied on the modification approval. It submitted that this approval permitted the court to draw the inference that Mr Preston knew that after 20 February 2014 he had engaged in unlawful building works and accordingly had sought to rectify them. In other words, the council invited the Court to draw an inference that Mr Preston had, by lodging the s 96 modification application, admitted that the works the subject of the 'stop work order' were unauthorised.
4. This argument may be readily debunked. First, the modification approval included consent for works the subject of the earlier PIN. Second, it included approval for stormwater drainage works the subject of neither PIN. Third, no attempt was made by the council to identify where in the modification approval the unauthorised building works the subject of the s 121B Notice were described for the purpose of rectification or modification. And nor could it, given the bare description of the "modification" in the approval and the absence of any of the plans referred to in that document or in the original consent.
5. Turning to the remaining evidence relied upon by the council (that referred to above at [58] and [59]), I do not accept that it proves beyond reasonable doubt that the works observed by Mr Zapantis on 27 May 2014 were unauthorised. This is because, in my opinion, very little weight ought to be placed on Mr Zapantis' evidence. First, as discussed above, a proper basis for the formation of his expert opinion that the works were unauthorised has not been properly established by the council. The opinion rests almost entirely (as I have stated above, his evidence of having formed the view that the work was unauthorised based, in part, on the consent and drawings, is equivocal) upon a bare assertion that when he compared his observations of the property during the inspection on 20 February to his observations of the property on 27 May 2014, that it was apparent that unauthorised works had taken place to the ground floor level. Without a more fulsome and cogent description of what these differences were and how they exceeded what was permitted by the consent, his evidence cannot be accepted to establish Mr Preston's guilt to the criminal standard.
6. The photographs taken and relied upon by Mr Zapantis are no more than that. The only description on the set of photographs taken by him on 20 February 2014, is the name of the photographer and the date and time at which they were taken. Only one photograph identifies where on the property the photo was taken, viz, "Photo 1: Ground floor works conducted". What those works are remains a mystery. The location shown in the other photographs is not known. Similarly with respect to the photographs taken by Mr Zapantis on 27 February 2014, only the name of the photographer and the date upon which they were taken is given. There is no description of where on the property any of the 34 photographs were taken or what they depict. Both the court below, and this Court, was left, in each instance, to guess as to the content of each photograph.
7. This lack of detail was exacerbated by the witness, Mr Zapantis, providing no assistance or additional information during his oral testimony as to what the photographs purported to demonstrate. Although he stated that when a comparison was made between the two sets of photographs the unauthorised works undertaken on the ground floor level could be observed (T8.05-8.15), this was not, in the absence of any explanation by him as to the subject-matter of the photographs and the varied state of the ground floor level between 20 February and 27 May 2014, the case at all. Not only was it unclear from the photographs what work had taken place on the ground floor level in the intervening period, there was no way of knowing, by examination of the photographs alone, whether the work was unauthorised.
8. This is not in any way to criticise Mr Zapantis. Rather, this is evidence that should have been led by the council from the witness. Its failure to do so meant that this Court cannot be satisfied to the appropriate degree that Mr Preston engaged in unauthorised building works to the ground floor after the s 121B Notice was issued by the council. The appeal must therefore be upheld and the conviction set aside.
9. Finally, for the sake of completeness it should be noted that the council, properly, in my view, did not seek to rely on any hearsay opinion expressed by Ms Hunt referred to at first instance to assist it.

Is the Council Strictly Bound by the Date and Time of the Offence Stipulated in the CAN?

1. Although the finding above is sufficient to dispose of the appeal in Mr Preston's favour, in the alternative, can it be argued that because the CAN stipulates with precision the date and time of the offence as "27/05/2014 10:00 AM", and did not plead the offence as a continuing offence (for a recent discussion of what this type of offence constitutes, see Chief Executive, Office of Environment and Heritage v Manchee; Chief Executive, Office of Environment and Heritage v Bogamildi Investments Pty Ltd [2015] NSWLEC 117), the council was required to prove that the unauthorised buildings works occurred on that day and on that time (of which there was no evidence, as the council conceded)?
2. To be fair to the council, this point was not agitated at first instance. Indeed it was only raised for the first time by the Court on appeal. Unsurprisingly, it was then willingly embraced by Mr Preston. As a consequence, the parties were afforded the opportunity of filing supplementary written submissions on the point.
3. Unlike a carefully drafted summons setting out the charge and particulars of summary criminal proceedings commenced in the Court's Class 5 jurisdiction, a CAN appears to be no more than a computer generated document issued by the Local Court based on information obtained from a PIN, issued pursuant to Pt 3 of the Fines Act 1996, by the relevant local government council. Yet it is the CAN, and not the PIN, that is the charge, or information, for the purposes of proceedings in the Local Court and, on appeal, in this Court.
4. In this case, the details contained in the CAN were obtained from the PIN issued by the council on 3 July 2014. It is in this document that some of the particulars of the offence with which Mr Preston was charged may be found.
5. The letter to Mr Preston attaching the PIN stated: Enclosed is a Penalty Infringement Notice issued under the Fines Act 1996, numbered 3097035224 for Fail to cease specified building work or subdivision work - Individual. On 27 June [sic] 2014, at approximately 10:00am, a site inspection of the above property was conducted by Council's Compliance Officer Andrew Zapantis. Observations made during the course of the inspection, revealed that unauthorised building works had occurred to the ground level of the premises which was contrary to Council's letter dated 20 February 2014, referenced EPA/2014/57. A review of Council's records at the time, failed to reveal any evidence of a development approval being granted for the works, where prior approval was required. The Penalty Infringement Notice has been issued to you, as the owner of 33 Booth Street, Annandale NSW 2033.
6. The parties agreed that the reference in the second paragraph of that letter to "June" should have been "May". Nothing turned on the typographical error.
7. The attached PIN was in the following terms: PENALTY NOTICE Issued pursuant to Part 3 of the Fines Act 1996 ISSUING AUTHORITY: Leichhardt Municip [sic] INFRINGEMENT NUMBER: 3097035224 Date of Offence: 27/05/2014 Time of Offence: 10:00AM Name: ANDREW WILLIAM, PRESTON Address: 33 BOOTH STREET ANNANDALE
8. In turn, the PIN is clearly a computer generated notice arguably based on the information contained in the letter of the same date.
9. Similar to the CAN, the letter, attaching the PIN neither stated that the offence was committed "by" 27 May 2014, nor did it indicate that the offence had been committed sometime between that date and 20 February 2014. If it had, then, again, arguably no issue would arise.
10. No application was made by the council to amend the CAN to change the particulars of the date of the offence. The Court has the power to make such an amendment (Kari & Ghossayn Pty Ltd v Sutherland Shire Council [2006] NSWLEC 532; (2006) 150 LGERA 231 at [6]-[9] and ss 20 and 21 of the Criminal Procedure Act 1986 ("the CPA")).
11. Part 2 of the CPA deals with "Indictments and other matters". It applies to CANs for criminal proceedings commenced in the Local Court (s 15(2) of the CPA).
12. Thus, under Pt 2 of the CPA a defective CAN is not necessarily bad or void. Section 16(1)(g) and (h) of that Act provide that: 16 Certain defects do not affect indictment (1) An indictment is not bad, insufficient, void, erroneous or defective on any of the following grounds: … (g) except where time is an essential ingredient, for omitting to state the time at which an offence was committed, for stating the time wrongly or for stating the time imperfectly, (h) for stating an offence to have been committed on a day subsequent to the finding of the indictment, on an impossible day or on a day that never happened,
13. In the present appeal, time is not an essential ingredient of an offence against s 125(1) of the EPAA for contravention of s 121B of that Act (Kari & Ghossayn at [10]).
14. Mr Preston submitted that only s 16(1)(h) was relevant, and not s 16(1)(g) of the CPA, because the latter provision referred only to "time" and not to "day", it was not applicable. But the reference to "time" in s 16(1)(g) has been construed to include the date on which the offence was committed (see, for example, the facts of both Kari & Ghossayn and Manchee).
15. Therefore had the council sought it, the Court could have, on this appeal, amended the CAN to plead the offence as having occurred sometime between 20 February and 27 May 2015.
16. Section 16(2) of the CPA, however, states that: (2) No objection may be taken, or allowed, to any indictment by which criminal proceedings (including committal proceedings) in the Local Court or for any other offence that is to be dealt with summarily are commenced, or to any warrant issued for the purposes of any such proceedings, on the grounds of: (a) any alleged defect in it in substance or in form, or (b) any variance between it and the evidence adduced at the proceedings for the offence charged in the indictment or warrant.
17. Although Mr Preston submitted that, properly construed, s 16(2) had no application to the present case, given that, any reference to an "indictment" in Pt 2, which includes the reference to that term in s 16, includes the present CAN (s 15(2)), this contention cannot be accepted.
18. Therefore, applying s 16(1)(g) or (h) and 16(2) of the CPA, it would appear that Mr Preston is precluded from relying on any purported defect in the CAN as to the date upon which the offence is allege to have been committed as a grounds of escaping possible conviction.
19. Furthermore, in my opinion, the time and date specified in the CAN ought not be construed literally, generated as it is, by computer process. Rather, it should be interpreted by reference to the nature of the offence described in the CAN and the provision empowering the council to make the order giving rise to the offence, namely, order 19 in s 121B of the EPAA.
20. The offence identified in the CAN is "fail to cease specified building work". Section 121B(1) of the EPAA permits an order to be given to a person by "(a) a council…to do or refrain from doing a thing specified in the following Table if the circumstances specified it in Column 2 of the Table exist and the person comes within the description opposite it in Column 3 of the Table." In relation to order 19, this relevantly states: Column 1 Column 2 Column 3 To do what? In what circumstances? To whom? 19 To cease carrying out specified building work or subdivision work (a)Building work or subdivision work is being carried out in contravention of this Act Owner of land or any person apparently engages in carrying out the building work or subdivision work

1. When regard is had to order 19 and to the description of the offence in the CAN, it becomes apparent that the term "building work" in the CAN refers not to the verb but to the noun. That is to say, the actual structure that has been built, and not the act of building. Thus, as framed, the offence "fail to cease specified building work" refers to a continuing state of affairs whilst ever the structure that has been built in contravention of the order exists. In other words, when the date and time of the offence is read in conjunction with the description of the offence, the better view is that as at 27 May 2014 at 10 am, the specified building work, viz, the work to the ground floor level, remained present, and therefore, as at that date and time, the s 121B Notice order continued to be breached by Mr Preston insofar as that work had not ceased as required.
2. The council did not, therefore, have to demonstrate that the breach of the s 121B Notice occurred on the precise day and time specified in the CAN. Having said this, and in case this analysis is incorrect, it would be prudent for the council from hereon in to describe the offence in the CAN as a continuing offence thereby avoiding any potential invalidity or consequential evidential difficulties.

Appeal Against Sentence

1. It is not necessary for the Court to determine Mr Preston's appeal against sentence given that he has successfully challenged his conviction. Nevertheless, had I been required to do so, instinctively synthesising the objective gravity of the offence (very low) and the subjective features of Mr Preston, noting, in particular, that at all times he genuinely believed the work to be authorised, that he was contrite, that there is no need for specific deterrence, and having regard to the comparable cases referred to me by the parties, (notwithstanding the general upward trend in penalties for offences of this nature) I would consider a fine of $12,000 to be appropriate in all the circumstances. I would therefore have been inclined to dismiss Mr Preston's appeal against sentence.

Costs

1. Section 49(4) of the Appeal and Review Act provides as follows in respect of the Court's power to award costs in a Class 6 appeal: 49 Miscellaneous powers (4) Subject to section 70, the Land and Environment Court may make such order as to the costs to be paid by either party (including the Crown) as it thinks just.
2. Section 70(1) of that Act relevantly states: 70 Limit on costs awarded against public prosecutor (1) Costs are not to be awarded in favour of an appellant whose conviction is set aside unless the appeal court is satisfied: (a) that the investigation into the alleged offence was conducted in an unreasonable or improper manner, or (b) that the proceedings in the Local Court were initiated without reasonable cause or in bad faith, or were conducted by the prosecutor in an improper manner, or (c) that the prosecutor unreasonably failed to investigate (or to investigate properly) any relevant matter: (i) that the prosecutor was or ought reasonably to have been aware of, and (ii) that suggested that the appellant might not be guilty or that, for any other reason, the proceedings should not have been brought, or (d) that, because of other exceptional circumstances relating to the conduct of the proceedings by the prosecutor, it is just and reasonable to award costs in favour of the appellant.
3. It cannot be said that the circumstances in s 70(1)(a), (b) or (c) exist in the context of this appeal. However, in my opinion, it is just and reasonable to award costs in favour of Mr Preston given the conduct of the proceedings by the council in failing to adduce evidence that even arguably supported the possibility of a finding of guilt beyond reasonable doubt. This is not to say that a costs order may be made in every case where a conviction at first instance is overturned because the prosecution has failed to prove an element of the offence to the criminal standard. But in the proceedings below, the evidence relied upon by the council to secure the conviction was, on any reasonable view, so inadequate that it constituted exceptional circumstances pursuant to s 70(1)(d) of the Appeal and Review Act such that a costs order in Mr Preston's favour is warranted.
4. The council did not cavil with this position.
5. Finally, in relation to the costs of the prosecution of the matter in the court below, no award of costs was made by the Learned magistrate because the council commendably did not seek them given the trivial nature of the offence. Because Mr Preston appeared for himself, there is, therefore, no order required to be made by the Court in respect of those proceedings.

Orders

1. The formal orders of the Court are therefore that: 1. the appeal is upheld; 2. the conviction and fine are set aside; 3. the respondent is to pay the appellant's costs of the appeal; and 4. the exhibits are to be returned.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 04 August 2015