Willoughby City Council v Revelas

Willoughby City Council v Revelas - [2004] NSWLEC 138 - NSWLEC 2004 case summary — Zoe

[18]

The facts according to the Statement of Agreed Facts (Exhibit 1) are as follows: 1. These proceedings relate to works carried out at Lot 37 in Deposited Plan 6689 known as 1 The Tor Walk, Castlecrag (the Property ). The Prosecutor 2. The Prosecutor is Willoughby City Council constituted under section 204 of the Local Government Act 1993 and, accordingly, is vested with the functions referred to in the Act (the Council). The Property 3. The Property is zoned 2(a2) Residential under the Willoughby Local Environment Plan 1995 (WLEP 1995). Development for the purpose of dwelling house within the 2(a2) Residential zone may only be carried out with development consent. Dr Revelas 4. At all material times Dr Revelas was the owner of the Property. 5. At all material times Dr Revelas was the principal who engaged, authorised and instructed: (a) Bensen & Partners Pty Limited; and (b) P&V Masonry Pty Limited. The Application 6. On 9 October 2000, Bensen & Partners Limited lodged a Development Application (No 2001442) with Willoughby City Council for the construction of a new dwelling house and associated landscaping works on the Property (the Development Application). The Consent 7. Development Consent No 2001442(D) was granted to Bensen & Partners Limited on 9 March 2001 (the Consent). 8. Condition 3 of the Consent incorporated, in addition to the architectural plans, a Landscaping Plan No 0079 by Jocelyn Ramsay (the Original Landscaping Plan) as well as any other supporting documentation submitted as part of the application. 9. A Statement of Environmental Effects (the SEE)was submitted to Council as part of the Development Application. The SEE contained detailed references to the landscaping works proposed in the Original Landscaping Plan. The Modified Consent 10. The Consent was the subject of a section 96 application for the erection of an internal lift. Approval No 20010546 to that section 96 application was granted by the Council on 19 June 2001 (the Section 96 Approval). 11. The consent was modified by the rewording of Condition 3 to substitute references to new architectural plans and delete references to old architectural plans. Condition 3 of the Consent, as modified (the Modified Consent), no longer included the reference to the Original Landscaping Plan. 12. Construction certificate No 949/01 relating to the Modified Consent was granted to Bensen & Partners Pty Limited on 27 June 2001. Sandstone Retaining Walls and Terracing 13. Landscaping works on the property commenced in about mid December 2002. Those works, the erection of sandstone retaining walls and terracing at the rear of the Property, were carried out pursuant to the plan which is annexed to the Prosecutor's summons (the Summons Landscaping Plan). Part of the works shown in the Summons Landscaping Plan were completed by 12 May 2003 (the Completed Works). Building Certificate Application 14. On 11 June 2003 Dr Revelas submitted an application for a Building Certificate in respect of the Completed Landscaping Works (the Building Certificate Application). 15. The Council has not determined the Building Certificate Application. 121B Order and Works 16. Landscaping works forming part of the Summons Landscaping Plan but which had not been commenced by 12 May 2003 (the Uncommenced Works), were the subject of discussion between Dr Revelas, his architect (Mr George Bensen of Bensen & Partners Pty Limited) and Council officers for a proposed section 96 Application. 17. On 13 August 2003, Dr Revelas, Mr George Bensen and various Council officers met on the Property. Mr Bensen proposed to Council officers various changes to the Completed Works and to the Uncommenced Works. These were shown on a new landscaping plan (the New Landscaping Plan). 18. On 19 September 2003, Council issued an Order under section 121B of the Local Government Act (the 121B Order), in accordance with section 121K, requiring landscaping works to be carried out in accordance with the New Landscaping Plan, the landscaping specifications contained in the Original Landscaping Plan and a revised planting schedule prepared by Helen Young for Dr Revelas. 19. Dr Revelas, through his contractors, commenced works in compliance with the 121B Order on 22 September 2003.

[39]

Thereafter, the Defendant's affidavit proceeds to depose to the Defendant's understanding and belief, intentions and actions concerning the carrying out of the landscaping works on the development site including the erection of the retaining walls and terracing carried out by P & V Masonry Pty Ltd. Rather than summarise their content, it is fairer to the Defendant because of the particular reliance placed on them in the Defence submissions if I recite the entirety of these passages in the Affidavit:- 15. My intention with respect to the landscaping works was simply to replace the deteriorating drystone walls already present on the property with sandstone walls which would be constructed on proper foundations and be generally more stable. My intention was always to put in native vegetation to help soften and screen the walls. I was also told that the sandstone would mellow and blend with the environment over time. My intention was to have a backyard where the walls were safe and stable, and in harmony with the bushland setting of the surrounding harbour environment. 16. I was of the belief that the consent for the Original Landscaping Plan was sufficient to cover the works actually undertaken on the property. Despite the differences between the Original Landscaping Plan and the actual works undertaken, I did not believe, nor was I advised, that I required any further approval from council as they still comprised retaining walls and planting, but in a different configuration. Furthermore, these works were internal to my Property not along the boundary with any other property. 17. My belief expressed in the above paragraph was in part due to my knowledge of the masonry works carried out by P&V Masonry Pty Limited on the property immediately adjoining mine to the south, No. 3 the Tor Walk. Whilst I had observed Mr Abou-Sleiman of P&V Masonry Pty Limited constructing extensive sandstone retaining walls and terracing on that property, I had not been notified by the Council of any application for the owner of No. 3 to have these works constructed. I did, however, receive, in relation to No. 3, a notification for a proposed Kayak shed. This notification was after the owners of No. 3 had completed their sandstone walls, but before I commenced mine. As I had only been resident in Australia for less than 2 years at the time, I didn't expect to receive any notification, because I didn't understand that my neighbour at No. 3 would have needed to formally apply to the local council for any approval. 18. Landscaping work on the property commenced in about mid December 2002, but was not complete by 7 May 2003 and 12 May 2003 when Council officers inspected the property. At this time, the property was being prepared for the planting identified in the planting schedule prepared by Helen Young, but no more work was carried out on the site until after Council issued a section 121B Order on 19 September 2003.

[64]

Although there was considerable evidence concerning to the issue of the s 121B order given in the present case which was not given in the earlier case (and to the consideration of which evidence I must presently return), much of what I said in that case concerning the relationship between the charge of the offence under s 125 of the EP&A Act (which is the same offence charged in the present case) and the s 121B order is relevant to the issue raised by the Defendant in this case and bears repetition. The relevant passages are at pars 39 to 48 inclusive and are as follows: 39. A consideration of the objective seriousness of the admitted offence must logically start with the obvious fact that the legislature in prescribing a maximum penalty of $1.1 million for offences against the EP&A Act , s 125 has unequivocally declared that such offences are to be regarded as serious offences. It may be accepted (as I noted in Warringah Council v McNamee (2003) NSWLEC 28) that the offences created by s 125 cover a very wide spectrum of conduct ranging from the not too serious to the obviously serious, and that the essential character of the admitted offence, namely carrying out development without the requisite development consent, itself covers a wide spectrum of activity ranging from the carrying out of minor development to the carrying out of major development. 40. In my judgment, the nature and extent of the development carried out by the Defendant cannot be regarded as minor development. It involves a series of substantial sandstone retaining walls covering a large area of the development site with a very prominent exposure to view from Middle Harbour. 41. Notwithstanding this fact, and by way of qualification to it, the Defendant has placed considerable reliance upon the fact that the civil enforcement action taken by the Council against Dr Revelas the owner of the property and the buildings erected on it) by issuing the Order under the EP&A Act, s 121B requiring him to modify, but not to demolish, the unauthorised sandstone retaining walls. From this fact, the Court is invited to infer that the commission of the offence did not create any adverse environmental impact or consequence, and that this aspect of the offence demonstrates or at least indicates that the offence was not a serious offence. The Defence submission (properly in my opinion) did not go so far as to suggest that the issue of the s 121B Order was an indication that the Council would probably have granted development consent to the modified retaining walls if an application for that development had been made. But even if the finding had been available that development consent would probably have been granted to an application to building the retaining walls in their modified form (as reflected in the requirements of the Council's s 121B Order served on Dr Revelas in the present case and on the evidence I am not prepared to so find, on the balance of probabilities, the impact of that finding on the proper evaluation of the seriousness of the admitted offence would not escape or neutralise the impact on that question of the following two facts- (i) the admitted offence comprises the carrying out of the original , ( and not the modified ) development; and (ii) the essence of the admitted offence is the prohibition on the carrying out of development unless the requisite consent has been obtained and is in force. 42. The last-mentioned factor is simply the logical outworking of the EP&A Act , s 76A(1) . The requirement to obtain development consent before carrying out development is the lynchpin of the system of planning control that is provided for by Part 4 of the EP&A Act and in this respect , I entirely agree with Lloyd J's observation in Menai Excavations at 97: The system of planning control would become somewhat ineffective if persons were to carry out development, including demolition work without ensuring that necessary development consent has been obtained 43. The fact that the EPA Act contains provisions which may bring about in some measure on ex post facto regularisation of the unlawful carrying out of development (eg by the issue of a building certificate pursuant to ss 149 A to F- see Ireland v Cessnock City Council (1999) 103 LGERA 285) does not derogate from the fundamental precept of the EP&A Act that development is not to be carried out unless the requisite development consent has been obtained . 44. Nor do those provisions modify the essential character of an offence against s 125 involving a contravention of the EP&A Act, s 76A(1). Indeed, even if a building certificate is issued in respect of an unlawful development, the statutory immunities conferred by s 149E expressly preserve the liability of a person to be prosecuted for an offence against s 125 by virtue of the failure to obtain the requisite development consent: see s 149E(3)(b). 45. The facts of the present case establish that Dr Revelas' application for a building certificate in respect of the unlawful development carried out by the Defendant has not been determined by the Council but that while that application was pending, the Council issued Dr Revelas with the s 121B Order requiring him, inter alia, to modify the height and extent of some of the sandstone retaining walls. The facts of the case indicate that the Defendant has, on behalf of Dr Revelas, recently been engaged on the building work involved in the required modification of some of the retaining walls. 46. It is of some significance that the EP&A Act, contains no express provision concerning the legal relationship between civil enforcement action by way of statutory enforcement order under s 121B in relation to a breach of the Act (such as to constitute an offence against s 125) and summary criminal enforcement action in respect of that breach. This position is to be contrasted with the express provisions contained in s 127(7) and (8) in respect of civil enforcement action instituted pursuant to s 123 of the Act (as to which see Willoughby City Council v Bechara (2003) 124 LGERA 416 at 418/419). Sections 127(7) and (8) provide as follows: (7) A person shall not be convicted of an offence against this Act or the regulations where the matter constituting the offence is, at the date upon which the conviction would, but for this subsection, be made: (a) the subject of proceedings under section 123, which proceedings have not been concluded, or (b) the subject of an order made under section 124. (8) Nothing in subsection (7) precludes a conviction being made where the proceedings referred to in paragraph (a) of that subsection are concluded otherwise than by the making of an order under section 124 47. Accordingly, even if it were to be assumed that the issue of the s 121B Order were to represent the entire civil enforcement action to be taken by the Council in respect of the breach of the EPA caused by virtue of the Defendant's conduct, and even if Dr Revelas were to fully comply with the requirements of that Order, those (assumed) consequences would not affect the Defendant's liability incurred under s 125 of the EP&A Act . 48. Finally, in relation to objective factors going to the proper appraisal of the seriousness of the admitted offence, it should be noted that there is abundant existing judicial authority that the probability that development consent would have been granted, if applied for, in respect of any development unlawfully carried out, does not derogate from the objective seriousness of the offence of carrying out development without the requisite development consent-see Cooper v Coffs Harbour Council (1997) 97LGERA 125 at 143, Ryde City Council v Calleiga (1998) 99 LGERA 360 at 365, Canterbury City Council v Saad (2001) 112 LGERA 429

[150]

Secondly, there is the consideration as to what, if anything, could have been done by a defendant in order to avoid the occurrence of the act or omission that constitutes the offence. The relevance of this consideration emerges from the following passages of the Chief Justices' judgment at pars 171 to 175 inclusive of Thorneloe. 171. Even in the case of an offence of strict liability, no public purpose is served by recording a conviction or imposing a penalty in circumstances where the relevant accused could not, as a matter of practical reality, have done anything to ensure that the offence or, in the case of a result offence, the adverse consequences of the conduct, did not occur. 172 Lord Scarman expressed the purpose of imposing strict liability in Gammon (Hong Kong) Ltd v Attorney-General of Hong Kong [1985] AC 1 at 14: ... the creation of strict liability will be effective to promote the objects of the statute by encouraging greater vigilance to prevent the commission of the prohibited act. 173 To similar effect are the observations of Lord Evershed in Lim Chin Aik v The Queen [1963] AC 160 at 174: It is pertinent also to inquire whether putting the defendant under strict liability will assist in the performance of the regulations. That means there must be something he can do, directly or indirectly, by supervision or inspection, by improvement of his business methods or by exhorting those whom he may be expected to influence or control, which will promote the observance of the regulations. Unless this is so, there is no reason in penalising him, and it cannot be inferred that the legislature imposed strict liability merely in order to find a luckless victim. 174 In He Kaw Teh v The Queen (1985) 157 CLR 523, immediately prior to quoting this passage from Lim Chin Aik , Brennan J said: It requires clear language before it can be said that a statute provides for a person to do or to abstain from doing something at his peril and to make him criminally liable if his conduct turns out to be prohibited because of circumstances that that person did not know or because of results that he could not foresee. However grave the mischief at which a statute is aimed may be, the presumption is that the statute does not impose criminal liability without mens rea unless the purpose of the statute is not merely to deter a person from engaging in prohibited conduct but to compel him to take preventive measures to avoid the possibility that, without deliberate conduct on his part, the external elements of the offence might occur. A statute is not so construed unless effective precautions can be taken to avoid the possibility of the occurrence of the external elements of the offence. 175 Brennan J, Lord Evershed and Lord Scarman were concerned with determining whether a particular offence required mens rea. However their Honours' reasoning suggests that in the case of any criminal offence the Parliament will be strongly presumed to be concerned to impose liability only in the case of events that could have been avoided by some action on the part of the accused.

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