Land and Environment Court of New South Wales CITATION : North Sydney Council v Kluver [2001] NSWLEC 299 PROSECUTOR North Sydney Council PARTIES : DEFENDANT Andrew Kluver FILE NUMBER(S) : 50058 of 2001 CORAM: Sheahan J KEY ISSUES: Environmental Offences :- carry out works without construction certificate - early plea of guilty - no environmental harm - mitigation - no prior record - fine - costs Crimes (Sentencing Procedure) Act 1999 s 10 LEGISLATION CITED: Environmental Planning and Assessment Act 1979 ss 81A(2), 125 and 126 Fines Act 1996 CASES CITED: DATES OF HEARING: 27/11/2001 EX TEMPORE JUDGMENT DATE : 11/27/2001 PROSECUTOR Mr A Galasso (Barrister) Mallesons Stephen Jaques (Solicitors) LEGAL REPRESENTATIVES: DEFENDANT Mr Ian Hemmings (Barrister) Phillips Fox (Solicitors) JUDGMENT: IN THE LAND AND Matter No: 50058 of 2001 ENVIRONMENT COURT Coram: Sheahan J OF NEW SOUTH WALES 27 November 2001 NORTH SYDNEY COUNCIL Prosecutor v ANDREW KLUVER Defendant JUDGMENT 1. Andrew Gordon Arthur Kluver appears today to answer a charge that he carried out building work at his home at 60 Pine Street Cammeray without obtaining a construction certificate. 2. Under the combined operation of ss 81A(2), 125 and 126 of the Environmental Planning & Assessment Act 1979 his plea of guilty to the offence charged exposes him to a maximum penalty of $1.1 million, and an order that he pay the Prosecutor's costs, currently claimed in the sum of about $18,000. 3. Mr Galasso, Counsel for the Prosecuting Council, accepts that any penalty should be at the very low end of the range, but Mr Hemmings, Counsel for the Defendant, has asked the court to extend to his client the benefit of s 10 of the Crimes (Sentencing Procedure) Act 1999. 4. The choice between those two outcomes has weighed heavily on the court's mind during the adjournment. 5. Mr Kluver and his wife have lived at the subject address for 17 years. To improve the property for the benefit of his family, notably two daughters aged 12 and 8, he has been seeking approval since April 1998, inter alia, to build an in-ground swimming pool. Such a project because of land form requires quite substantial excavation work, and the project has been strenuously opposed by the Kluver family's neighbour, a Mr Cyril Rayner, who has apparently lived at 58 Pine Street for over 50 years, and appears to have pestered Council quite a deal over the Kluver family's plans. 6. A development consent was eventually issued for the proposed in-ground pool by this court in July 1999, but the overall project and the conditions of consent have been the subject of much litigation, estimated to have cost Mr Kluver about $95,000. 7. Some of that litigation involved an application by Mr Kluver for modification of the swimming pool plans, pursuant to s 96 of the EP&A Act. That element of the litigation was settled by orders of the court on 9 July 1999 and 10 May 2000, which clarified some at least perceived conflict between the wording of previous decisions and the detail of the relevant plans, but did not entirely repeal relevant Council conditions. 8. Of particular concern has been an Agonis tree of some importance on Rayner's side of the relevant boundary, quite close to the chosen location for the pool, and Council has been most vigilant in this respect. 9. The subject offending works done by the defendant allegedly took place between 15 and 28 November 2000. Relevant communications between Kluver and the Council between May and November 2000 have been the subject of much evidence before the court today, and the nub of the case is Mr Kluver's sworn testimony that he misunderstood precisely what he was and was not permitted to do at material times. 10. The particulars of the offence concern excavation of "an area 9m wide 18m long and up to 2m deep for the purposes of construction of the swimming pool". 11. The court has grappled with distinctions to be drawn between landscaping work, excavation of the pool area itself, and relevant works preparatory to the construction of the pool. 12. The court has been assisted by the various photographs in evidence, and, especially, by the parties' agreement on a Statement of Facts, and, generally, on the parts of various affidavits to be read. 13. None of the deponents, including the defendant, was required for cross-examination. 14. The amount of evidence is voluminous, but the key matters would appear to be as follows: · The Council's surveyor, Mr Warren Bee, deposes (par 9) that the area admittedly excavated by the defendant is "in the same general location as the location of the pool shown on the Plan", and that the excavation has been made within "similar dimensions" and "to a level which is generally at the level of the pool surface as shown" thereon. (See also Jeuken affidavit par 24). · Kluver and Council Officer Peter Jeuken disagree on the content and import of a key conversation between Mr Beattie of the council and Mr Kluver on 31 July 2000, concerning what did and did not require approval, or further approval, from the Council. Mr Kluver believes he was allowed to bring in a bobcat to do somewhat more than the Council officers say they told him he could. In this respect I have no reason to reject the contentions made by Mr Kluver in pars 15-19 and 26-28 of his affidavit of 19 November 2001. · On 15 November 2000, Kluver had undertaken to Council that, whatever he did, he would do "no swimming pool excavation works". · Kluver has frequently alleged and complained that he and his project have been the victim of at least "inequities" in Council's consideration of relevant matters (Jeuken par 28 p 12) or, in his words, "an unusual level of scrutiny" (his affidavit par 13). · The modified conditions of consent were quite detailed in regard to the required "buffer" area to the relevant boundary near the tree, and to Council's requirements in that regard "prior to the commencement of any work on the site (including excavation)", and Council was quite explicit in its written communication in respect of them – see council letters of 16 August 2000, 6 September 2000, 27 October 2000, 9 November 2000 (especially par 4), 23 November 2000 (especially p 2, last two paragraphs), and 8 January 2001. · By the same token I accept that Kluver was quite specific in respect of what he understood he could do and what he proposed he would do – see his letters of 11 September 2000, and "16 June 2000" (sent and received 3 November 2000), and his affidavit of 19 November 2001, to which evidence I have earlier referred. 15. Were it not for the specific terms of the correspondence Mr Kluver undeniably received from the Council I may well have afforded him the benefit of s 10. Of particular importance in this regard are the letter of 16 August 2000, and the fourth paragraph of the Council letters of 27 October 2000 and 9 November 2000 (at Exhibit AK4 and Exhibit AK7 to his own affidavit), plus the fifth paragraph of the later of those letters, inviting further dialogue on detail, all prior to the offence period. 16. However, despite the amount of material removed, I am certainly not satisfied that Kluver set out, in breach of his undertaking (at Exhibit AK8 and elsewhere), to excavate the pool without the construction certificate. 17. I, therefore, conclude that the degree of his culpability is low, and that only a relatively small fine should be imposed on him, to highlight to him, and to others, that detailed stipulations by Councils should be followed, and that care must be taken to ascertain their true meaning and import. 18. Mr Kluver's contrition is clear from pars 29-38 of his affidavit, and from his plea of guilty, entered at the earliest reasonable opportunity, despite advice that he may have an arguable defence. 19. He has no prior record, and appears not to have to come to adverse notice at Council in 17 years, until these recent unfortunate controversies. 20. No environmental harm resulted from his actions, and he had a development consent for the works he had proposed. 21. He will accede to the usual order to pay the Prosecutor's costs. 22. I also note his evidence about the need for some of the works to be done urgently, because of an apparent problem with white ants, and his evidence of his close supervision of his contractors. 23. He is a family man of 47, apparently successful and well-regarded in an industry in which he would not gain much experience of legalities such as those involved in these matters. 24. In all the circumstances I arrive at the following formal orders: 1. The defendant is convicted of the offence charged in the class 5 summons. 2. The defendant is ordered to pay a fine of $3,500 within the 28 day period specified in the Fines Act 1996. The defendant is ordered to pay the just and reasonable costs of the prosecutor, as agreed, or as assessed according to law, within six weeks of such agreement or assessment. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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