d You must give at least two (2) days notice to Council of your intention to commence work".
· Condition 4 under the heading "Prior to Commencement of Works":
"The developer shall obtain a Construction Certificate for any civil engineering works".
· Condition 5 under the heading "Prior to Commencement of Works":
"A sign must be erected in a prominent position on any site on which building work, subdivision work or demolition work is being carried out:
a showing the name, address and telephone number of the Principal Certifying Authority for the work, and showing the name of the principal contractor (if any) for any building work and a telephone number on which that person may be contacted outside working hours, and stating that unauthorised entry to the work site is prohibited".
· Condition 2 under the heading "Erosion and Sedimentation Control and Amenity":
"The developer shall submit to the Certifying Authority for approval prior to the issue of the Construction Certificate, a detailed soil and water management plan designed in accordance with the requirements of the Department of Natural Resources. All works on the site must be in accordance with the approved soil and water management plan for the full duration of construction works".
· Condition 1 under the heading "Inspections":
"The building work shall be inspected at critical and other stages as required by the Principal Certifying Authority for the development".
· Condition 4 under the heading "Building Construction":
"No building work is to commence until details prepared by a practising Structural Engineer have been submitted and accepted by the Principal Certifying Authority for any reinforced concrete slabs, footings or structural steel".
· Condition 1 under the heading "Prior to Occupation":
"The whole or part of the building must not be occupied unless an Occupation Certificate has been issued in relation to the building or part in accordance with clause 109M of the Environmental Planning and Assessment Act, 1979".
22 On 25 May 2007, Mr Fuller returned to the Land and observed excavation and earth moving works continuing. On 5 June 2007, Mr Eddy, on behalf of Pacific Real Estate, applied for a construction certificate with Accredited Building Certifiers ("ABC") for ride two, the pool, the raft conveyor and the ride start tower.
23 On 16 July 2007, Mr Steve Witheridge ("Mr Witheridge") of ABC spoke to Mr Eddy and told him that work had commenced on the Land prior to the issuing of the construction certificate.
24 On 17 July 2007, Mr Witheridge spoke to Mr Eddy and told him that he would need to apply to council for a building certificate for the reinforced concrete sprayed walls and 24 concrete pad footings for ride one that had been undertaken without a construction certificate.
25 On 18 July 2007, Mr Witheridge entered the Land and observed that earthworks had been carried out on it, that reinforced concrete had been sprayed on walls and that the 24 concrete pad footings for ride one had been built.
26 On that day Mr Fuller met Mr Dax Eddy ("Dax"), the son of Mr Eddy and a manager of the Park, at the council. Dax told Mr Fuller that the concrete footings had been poured on the Land prior to the issue of the construction certificate. Mr Fuller gave Dax a building certificate application form.
27 On 19 July 2007, Mr Witheridge issued construction certificate no 467/07 for the pool, the raft conveyor and the ride start tower and for ride two ("the construction certificate").
28 On 23 July 2007, the council received the construction certificate from ABC for ride two. No construction certificate was issued for ride one. On 27 July 2007, JBA Urban Planning Consultants, acting on behalf of Pacific Real Estate, applied to the council for a building certificate for ride one.
29 In order to consider the application for a building certificate for ride one Mr Gregory Herbert ("Mr Herbert") from the council entered the Land on 1 August 2007 at the direction of Mr Fuller. He observed that various excavation and construction works had been undertaken on the Land. In particular, he observed the construction of concrete pad footings and retaining walls associated with ride one.
30 Neither the reinforced concrete sprayed walls nor the 24 concrete pad footings for ride one were the subject of any building approval or construction certificate issued by council or any other prescribed authority as at the date the works took place.
31 On 13 August 2007, the council issued a building certificate for the reinforced concrete sprayed walls and the 24 concrete pad footings for ride one.
32 On 11 April 2008, Mr Witheridge returned to the Land. He observed that the works subject of the construction certificate had generally been completed but that there were a few outstanding issues which prevented the issuing of a final occupation certificate. By this stage ride one had largely been completed, the Park was open to the public and the whole of the Ride was not fenced off but was being used by members of the public.
33 An interim occupation certificate was issued by Mr Witheridge on 6 August 2008 for the works the subject of the construction certificate. This did not include works undertaken before the construction certificate was issued.
34 On 21 August 2008 a building certificate application was lodged with the council for the whole of ride one. That certificate was issued by the council on 3 September 2008.
35 The works observed by Mr Joseph on 9 May 2007, Mr Fuller on 10 May and 25 May 2007, Mr Witheridge on 18 July 2007 and 11 April 2008 and Mr Herbert on 1 August 2007 were works for which consent had been sought under the DA. However, the work relating to the concrete sprayed walls and the 24 concrete pad footings was commenced pursuant to the Development Consent but prior to obtaining a construction certificate.
36 Pacific Real Estate agreed that it had allowed the Ride to be occupied and used by the public prior to satisfying all of the conditions of the Development Consent and prior to first making satisfactory arrangements with the principal certifying authority. It also conceded that work was commenced on the Land pursuant to the Development Consent prior to detailed plans and specifications being endorsed by a construction certificate. Further, the council never received a notice of appointment of the principal certifying authority. Nor was council ever notified of Pacific Real Estate's intention to commence work pursuant to the Development Consent prior to the commencement of the works.
37 No sign was erected on the Land in accordance with condition 5 of the Development Consent. Likewise, a detailed soil and water management plan was not submitted to the principal certifying authority in accordance with condition 2 of the Development Consent. Work was commenced on the Land pursuant to the Development Consent at various stages without those stages being inspected by the principal certifying authority and without submitting details prepared by a structural engineer for the reinforced concrete slabs, footings and structural steel.
38 At all times the works were carried out for and on behalf of servants, agents, and/or contractors of the defendant and at the direction of Mr Eddy on behalf of the defendant.
Correct Defendant
39 Originally prosecution for the offences the subject matter of the proceedings were commenced against Jamberoo Grass Ski Park Pty Ltd, George Eddy Holdings Pty Ltd and Propix Pty Ltd. These defendants were all incorrectly identified by the prosecutor.
40 Upon becoming aware of the prosecutor's error, Mr Eddy communicated the mistake to the prosecutor and identified the correct corporate defendant. He did so because he was of the view that Pacific Real Estate was responsible for the breaches alleged. He therefore instructed his solicitor to inform the prosecutor that they had the wrong defendants and to identify the correct defendant to the charges. It was as a consequence of these instructions that the current proceedings were instituted against Pacific Real Estate with its consent.
Evidence of the Defendant
41 In his affidavit sworn 11 May 2009, Mr Eddy deposed to his frustration with the council at the incorrect advice it acknowledged it had given him in relation to the various development applications that were lodged with it. He also expressed his frustration at the slow progress of the development applications through the council.
42 In relation to the commencement of the work, Mr Eddy fully and frankly admitted to having given instructions for and on behalf of Pacific Real Estate that the site preparation works were to commence on the Ride, and moreover, that these instructions were given prior to development consent having been received. He also admitted that he was aware that development consent was needed before the earthworks could start.
43 In respect of the stop work suggestion made by Mr Fuller on 8 May 2007, Mr Eddy stated that he gave instructions for the work to stop but that because the work that had been carried out included excavation works, it was necessary to secure the site properly which he did. This necessitated carrying out some additional earthworks which took place over two weeks.
44 In relation to the building works the subject of the stage four development, Mr Eddy stated that after the Development Consent was granted he "thought that we could get on with the work". He stated that he was not familiar with the development consent process and he admitted that he did not read the detail of the Consent. Thus he was not aware "of the fact that a Construction Certificate was required prior to the carrying out of the building work". Accordingly, not all of the requirements of the conditions of the Development Consent were complied with either prior to, or as part of, the carrying out of the development.
45 Mr Eddy acknowledged a further error, namely, his assumption that because the Development Consent, the construction certificate and the building certificate had been obtained, all the works could continue. In fact no construction certificate was obtained for the completion of ride one until 3 September 2008.
46 Mr Eddy was forthcoming in expressing his regret on behalf of the company. He stated in his affidavit:
26. For the reasons I have set out above, firstly because of my haste and secondly because of my carelessness I caused the Defendant to break the law. That involved the carrying out of development before development consent had been granted, the carrying out of construction works before a Construction Certificate was issued and the failure to comply with conditions of consent.