Land and Environment Court of New South Wales CITATION : Keir & Anor v Sutherland Shire Council [2004] NSWLEC 754 Adel Keir (1A) PARTIES : Galaxy Constructions & Development Group Pty Ltd (2A) Sutherland Shire Council (Resp) FILE NUMBER(S) : 60003 of 2004 CORAM: McClellan CJ Injunctions and Declarations :- Breach of development consent KEY ISSUES: Unauthorised building work Appeal of penalty imposed LEGISLATION CITED: Environmental Planning & Assessment Act 1979 CASES CITED: Ristevski v Hurstville City Council [2003] NSWLEC 409; Tiger Nominees Pty Ltd v The State Pollution Control Commission (1992) 75 LGRA 71 DATES OF HEARING: 7 December 2004 EX TEMPORE 12/07/2004 JUDGMENT DATE : T Howard (Barrister - Appellants) Thurlow Fisher (Sol - Appellants) LEGAL REPRESENTATIVES: R O'Gorman-Hughes (Solicitor - Resp) Sutherland Shire Council JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES McCLELLAN J TUESDAY 7 DECEMBER 2004 60003/04 KEIR v SUTHERLAND SHIRE COUNCIL JUDGMENT 1 HIS HONOUR: This is an appeal from the decision of Magistrate Clugston in proceedings in which his Honour imposed penalties upon Adel Keir and Galaxy Construction and Development Group Pty Limited for carrying out development otherwise than in accordance with development consent contrary to s 6A(1)(b) of the Environmental Planning and Assessment Act 1979. 2 Mr Keir is the sole director of Galaxy Constructions. The appeal to this Court was framed as a single appeal. However, each defendant was separately charged and convicted and, accordingly, the records should be amended to show a separate appeal by each defendant. 3 Galaxy Constructions carries on business as a builder. The offences were committed in the course of constructing a dwelling house at number 12 Young Street, Sylvania which was intended to be the future residence of Mr Keir and his family. The plans of the residence are in evidence and it is a substantial dwelling over a number of levels and includes basement facilities. 4 As I understand the situation, when the original development application was lodged with the Council concerns were expressed about the visual impact of the property on its neighbours and the potential impacts upon the privacy of the adjoining properties. Some of the work which was carried out without consent altered parts of the dwelling so that impacts which were originally of concern were created for neighbouring properties. When the Council became aware of the problems Mr Keir lodged s 96 applications and, ultimately, the property has been further modified so that the unreasonable impacts have been eliminated. As I understand the position, the dwelling now conforms to the Council's requirements. 5 Each charge was particularised with eighteen elements. They are as follows: 1. Replacement of lawn on the courtyard area outside the front entry with tiling and replacement of the planter box next to the laundry with tiling. 2. Elevation and tiling of the landscaped area on the north-west corner of the site. 3. Replacement of a rectilinear-shaped retaining wall outside the rumpus room with a rounded wall. 4. Deletion of a planter area under the stairs and installation of an additional entrance door to the lower ground level. 5. Relocation of the bedroom three internal partition wall. 6. Deletion of the planter box to the terrace area outside bedroom number three. 7. Relocation of stairways and replacement of the void and the stairwell with floor space. 8. Replacement of the void area adjacent to the sitting room with floor slab. 9. Removal of the fireplace flue. 10. Construction of an additional beam at first floor level. 11. Conversion of the rumpus room bar to a kitchen. 12. Movement of the basement walls to increase the lower ground floor storage area. 13. Conversion of the storage area to a habitable room without compliance with Building Code of Australia provisions concerning provision of windows and ventilation. 14. Construction of a column outside the living room. 15. Deletion of the walk-in robe in the master bedroom and redesign of the en-suite to that bedroom. 16. Raising the entry colonnade to the southern elevation. 17. Changing building footprints and levels. 18. Carrying out building work outside of the hours permitted by condition 19 of development consent 02/2199. 6 Each defendant pleaded guilty to the charges in the Local Court. Although the pleas were not entered on the first available occasion, they were entered at a time sufficient to justify consideration of their utilitarian benefit in the penalty which should be imposed. 7 The brief facts of the matter are that on 11 December 2002 Mr Keir submitted a development application for the construction of a dwelling and swimming pool. A council officer prepared a development assessment report dated 18 March 2003 in which he identified the key issues as bulk, height, privacy impacts on neighbouring properties and shadowing of neighbouring properties. Subsequently, Mr Keir amended the plans for the proposed structure with the result that the area of the basement was reduced to a figure just under the Council's maximum permissible floor area and the height of the proposed dwelling was reduced by 600 millimetres. Provision was also made for the installation of louvres fixed at an angle to prevent the over-looking of neighbouring properties. 8 In August 2003 a council officer visited the site and observed that work had been carried out otherwise than in accordance with the consent. As a result, a letter was forwarded to Mr Keir giving him notice of the Council's intention to issue an order requiring him to carry out all construction works in accordance with the development consent. In February 2004 Mr Keir lodged a modification application seeking approval for certain work which had already been carried out. That application was refused by the Council. Further inspection was carried out by the Council in February 2004 when it was observed that further unauthorised work had been carried out. 9 Thereafter a process of negotiation took place and, ultimately, the Council decided that it would not require all of the illegal work to be rectified. However, a number of changes have been made to the building to ensure that the environmental outcome is acceptable. Of particular concern were the items particularised in the summons identified as items 1, 2, 6, 7, 8 and 9. Each of those matters in different respects gave rise to privacy concerns for the neighbouring properties. Each of them was an alteration made without consent and for the purpose of enhancing Mr Keir and his family's enjoyment of the property. I am satisfied that Mr Keir knew that by making those changes to the building he was acting contrary to the law and was doing so to the benefit of himself and his family. The detriment to his neighbours must have been obvious. 10 The evidence before me includes a copy of a letter dated 27 January 2004 from Mr Keir to the Council providing details of construction work in which he says the work "that has been carried out by us during the construction process before obtaining an amended consent from the Council, in order to prevent future costs and delays that might affect the finishing time of this development". 11 Accordingly, I am satisfied beyond reasonable doubt that both defendants breached the Act and have deliberately carried out a number of alterations to the building which did not accord with the approved plans. Those alterations were carried out in circumstances where Mr Keir well understood that his obligation was to comply with the law and, if he wished to depart from the approved plans, required the consent of the council pursuant to s 96 of the Environmental Planning and Assessment Act. I am also satisfied that the work was carried out without seeking the consent of the Council in order to minimise the costs to Mr Keir and his family, should a delay have ensued before the variations were approved. 12 I have been referred by counsel to a number of decisions of this Court in relation to charges where a breach of the act has been proven. Because of the infinite variation in matters controlled by the Environmental Planning and Assessment Act different considerations will arise in many cases. Some cases will involve the illegal removal of trees or clearing of land. Others will involve the use of premises for unauthorised activity. However, there is also a class of matter, of which the present is one, where the breach of the law involves the carrying out of unauthorised building work. 13 Offences, such as the present, require a penalty which reflects the serious nature of the breach of the law which has occurred. The resources of the community are not sufficient, and never could be, to allow for councils to constantly supervise the work which licensed builders carry out on a daily basis. By enacting the Environmental Planning and Assessment Act and similar legislation, the legislature has provided a frame work of regulation which is in the interests of the whole community, although its effectiveness depends upon individuals observing its provisions. Builders and others who have been granted licences by the relevant bodies to carry out building work carry a particular responsibility to ensure the work that they do is carried out in accordance with the law. Accordingly, when such a person breaches the law the penalty imposed must be sufficient, not only to provide adequately to punish the breach, but to ensure that others with licences to carry out similar work are reminded of their responsibilities under the law. 14 The Council submits in the present case that because Mr Keir was expressly made aware of his responsibilities by the Council, but nevertheless continued to carry out illegal building work, a more severe penalty than might otherwise have been imposed would be appropriate. I am not persuaded that this is the correct approach to the problem. In my opinion, a builder carrying out illegal work should expect to receive the same penalty irrespective of whether the Council has reminded him or her of their obligations. 15 The resources of Councils are simply not sufficient to enable every building site to be adequately supervised and, accordingly, to impose a different penalty where the council has happened upon illegal work than where a builder has carried out work without being detected, would send an inappropriate message to the building community. 16 In the present case, as I have indicated, Mr Keir is the effective mind of the company. In those circumstances, it is important to bear in mind that the multiplicity of offenders is, in reality, accidental and unrelated to the merits of the case. This position was commented upon by Gleeson CJ in Tiger Nominees Pty Ltd v The State Pollution Control Commission (1992) 75 LGRA 71 at 77. 17 In these circumstances, in my opinion, it is appropriate to impose a penalty upon both defendants which is sufficient in the circumstances but which takes account of the fact that that penalty will, in reality, come from Mr Keir's pocket. 18 I have been referred by counsel to a number of decisions of this Court, some of which are of greater relevance than others to the issue before me. As has been said on many occasions, it is important that the penalty which is imposed in a particular case falls within the level of penalty which the Court consistently imposes for like offences. However, each case depends upon its particular facts and a penalty appropriate to those facts must be imposed. 19 I am satisfied that in the present case the offence was deliberately committed in circumstances where Mr Keir knew that he was breaching the law. I am also satisfied that the offence was committed for his personal benefit and to obtain advantages for his property, which he knew would have adverse impacts upon his neighbours. So much is plain from the fact that areas which were required to be landscaped were instead provided with paved areas which could be accessed by his family. Other areas where a void was proposed were provided with floor areas which compromised the privacy of adjoining properties. 20 As I have indicated, there is a particular need to impose a penalty which is not only appropriate, with respect to the actions of Mr Keir, but also sends a strong warning to builders and others who carry out development work that a breach of the law will be visited with significant financial consequences. 21 I have indicated that, in my opinion, the defendants are entitled to the benefit of the plea which was entered. 22 Having regard to all of these matters, I am of the opinion that it would be appropriate to impose a fine of $25,000 on the defendant, Adel Keir. In the circumstances and having regard to the fact that Galaxy Constructions is Mr Keir's company, the appropriate penalty for that defendant is a fine of $10,000. 23 The appellants have, of course, succeeded in the appeal. The Local Court Magistrate imposed a total fine of $50,000. The total of the fines which I have indicated to be appropriate are $35,000. This raises the question of whether or not the appellants should have an order for costs in their favour. In my opinion, that would not be appropriate for, although they have succeeded in the appeal, that appeal was made necessary as a consequence of a serious breach of the law. 24 However, for the same reasons I believe it would not be appropriate that the Council have an order for costs. I appreciate that there may be decisions of the District Court where, even though an appellant has succeeded, an order for costs is nevertheless made in favour of the prosecuting council. 25 A different approach has been taken previously in this Court in the matter of Ristevski v Hurstville City Council [2003] NSWLEC 409 where Talbot J upheld an appeal but declined to make any order for costs. 26 In the circumstances of this case, I believe that to be the appropriate course. 27 Accordingly, the orders of the Court are: 1. The appeal by Mr Adel Keir is dismissed. 2. The appeal by Galaxy Constructions and Development Group Pty Ltd is upheld. 3. In the appeal by Galaxy Constructions and Development Group Pty Ltd the order made by his Honour Mr Clugston as to penalty is quashed. 4. I order the appellant Galaxy Constructions & Development Group Pty Ltd to pay a penalty by way of a monetary fine in the sum of $10,000. 5. I order Mr Keir to pay the costs being the costs of both proceedings in the Local Court in the total sum of $5480. 6. I make no order for the costs of the appeals. 7. The exhibits may 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. 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