North Sydney Council v Littlemore [2003] NSWLEC 336

> Land and Environment Court of New South Wales

CITATION : North Sydney Council v Littlemore [2003] NSWLEC 336 PARTIES : North Sydney Council (Prosecutor) David Anthony Lidwell Littlemore (Defendant) FILE NUMBER(S) : 50064 of 2003 CORAM: McClellan CJ Development Consent :- Non-compliance with conditions Condition relating to drainage would cause significant delay to work KEY ISSUES: Architect commenced building work prior to issue of construction certificate Problem capable of simple solution by amending relevant condition No person benefit to defendant in non-compliance Appropriate not to record conviction pursuant to s 10 Crimes (Sentencing Procedure) Act 1999 LEGISLATION CITED: Environmental Planning and Assessment Act 1979 Crimes Sentencing Procedure Act 1999 CASES CITED: Willoughby City Council v Bechara [2003] 124 LGERA 416 DATES OF HEARING: 5 November 2003 EX TEMPORE JUDGMENT DATE : 11/05/2003

A Galasso (Barrister - Prosecutor) Corrs Chambers Westgarth (Solicitor - Prosecutor) LEGAL REPRESENTATIVES: R W Hood (Barrister - Def) Pike Pike & Fenwick (Solicitors - Def)

JUDGMENT: IN THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES 50064/03

McCLELLAN J

WEDNESDAY 5 NOVEMBER 2003 NORTH SYDNEY COUNCIL Prosecutor v LITTLEMORE Defendant Judgment 1 HIS HONOUR: The defendant has pleaded guilty to a breach of s 81A(2) of the Environmental Planning and Assessment Act 1979. The offence was committed when he allowed building work to proceed for the erection of a dwelling house on land known as 28 Lodge Road, Cremorne, without a construction certificate having been issued. The defendant is an architect and was responsible for the design and supervision of the construction of the dwelling for his client. 2 Development consent for the building was granted by the council on 3 July 2002. It is common for development consents to be granted with numerous conditions. The instant consent is no exception. Section C contains conditions requiring subsidiary matters to be completed to the satisfaction of the council or accredited certifier prior to the issue of a construction certificate. The consent operated so that those matters must be completed before the certificate could issue and building work commence. 3 Condition C(9) related to stormwater drainage. As I understand the position, the land had a fall to its eastern boundary and then fell to the north where there was a form of natural watercourse. The only effective means of removing water from the site was by collecting it and taking it down the path of the watercourse. This required the water to be carried through a neighbour's property, necessitating an easement for that purpose. At the time the development consent was issued, there was no easement. 4 Condition C(9) relevantly provided: "Plans indicating all engineering details relevant to the site regarding the collection and disposal of stormwater from the site, buildings and adjacent catchments shall be submitted for approval with the construction certificate. Stormwater shall be conveyed by gravity, not a charge system, from the site to the nearest council stormwater drainage system unless otherwise specified by council. As the natural fall of the land is towards the rear of the site, the preferred stormwater drainage method will require the creation of an easement or registrable agreement to allow discharge of stormwater through adjoining properties to a drainage system within the natural catchment for the site. The easement or registrable agreement shall be created under ss 88B and/or 88K of the Conveyancing Act prior to final inspection for release of the construction certificate." 5 The practical problem which has given rise to these proceedings lay in the form of condition C(9). It was plain that effective provision needed to be made for the removal of water from the site, but as this required negotiations with a neighbour and the possibility of proceedings in the Supreme Court, it was almost inevitable that there would be some time before the easement could be obtained. The consequence of imposing a condition which required the easement to be obtained before the construction certificate issued was that there may be a significant delay before the construction could commence. 6 The defendant, being responsible for the development of the site, apparently elected not to comply with the condition and authorised the construction to commence before the construction certificate had been obtained. Apparently conscious of the difficulties which might arise, he was careful to ensure that the construction was inspected at every stage by appropriate persons, so that at the end of the process he was in a position to satisfy the council that the building had been properly constructed in accordance with the approved plans. The council accepts that this object has been achieved and the building is satisfactory. 7 There was always a relatively simple solution to the problem which the defendant faced as condition C(9) could be amended. However, he did not pursue that solution until quite some time after the construction work had commenced. During the period which elapsed, the fact that the building was being constructed without a construction certificate came to the attention of council officers who inspected the property and ultimately required building work to cease. There was an interruption in the works for a period of about five months with, as I understand it, consequential costs, some of which would have been incurred by the defendant. He was also of course delayed in receiving his fee for the satisfactory completion of the works. 8 The solution to the problem was identified in early 2003 and an application to modify the consent pursuant to s 96 was lodged with the council. The application was granted and condition C(9) was amended so that instead of the easement being required before a construction certificate issued, it was now required only before the release of an occupation certificate. As the only impediment to the issue of a construction certificate was the need to obtain the easement, that simple change had the consequence that if it had been incorporated into the original consent, no problem would have arisen. 9 The Environmental Planning and Assessment Act contains a complex set of provisions designed to control the development of land. If the Act is to work effectively, those who have professional responsibility for carrying out the tasks assigned to them under the structure of the legislation must accept the obligations which fall upon them to obey the statutory provisions and relevant regulations. Because the legislation is complex and because it is designed to ensure that the public interest is adequately protected in the multitude of ways where it interfaces the development process, unless professional people accept their obligations it is likely that the planning system would be unable to effectively function. Architects have an important part to play in this process. Councils and others who administer the legislation are entitled to rely upon architects to perform in accordance with the obligations which the statute imposes. 10 In the present case it is apparent that the defendant was conscious of the obligation imposed by condition C(9) but did not comply with it. No doubt there were benefits to his client in that the dwelling could be constructed at an earlier time. However, in taking that course, I am satisfied that he did not seek to obtain any personal benefit for himself. It is also apparent that the defendant was aware of his obligation to ensure that the building was properly constructed and took steps to obtain appropriate inspections so that the council could be satisfied that there were no problems with the completed building. 11 It is apparent that the simple solution which was ultimately identified and which could have removed the problem in the first place only occurred to the defendant late in the day and apparently after he had received some advice in the matter. It is also apparent that that solution had not occurred to the council at an early time. 12 Evidence has been given of the defendant's circumstances. He has practised as an architect for more than forty years and has an unblemished record. He entered a plea of guilty at the earliest opportunity. Although he owns his own house, it is encumbered with some debts, and evidence from his taxation returns reveals that he is now able to earn only a modest income. He is sixty-seven years of age and because of his present financial position will apparently work for the foreseeable future. He presently has no prospects of retirement at an early date. 13 The fact that he has been prosecuted has, I am satisfied, in some respects damaged his reputation. It will have been damaged with the council who brings these proceedings. He has also been required to notify his insurer and, at least initially, is likely to suffer some cost penalty by way of increased premium. I am satisfied that the defendant will not reoffend and I have no doubt that the fact that these proceedings have been brought has inflicted a salutary lesson upon him. 14 The defendant accepts that he must pay the council's costs. Counsel for the prosecutor indicates that those costs on a solicitor client basis at present are of the order of $28,000. As a result of today they may have increased further. Accordingly, an order that the defendant pay the council's costs as agreed or assessed will inflict a significant financial burden upon him having regard to his present financial circumstances. The evidence discloses that his annual income from his practice as an architect is of the order of $40,000 to $50,000. 15 The prosecutor emphasises the need for the Court to ensure that when dealing with the defendant, adequate weight is given to the element of deterrence. The decision of Bignold J in Willoughby City Council v Bechara [2003] 124 LGERA 416 emphasises the educational role of the criminal law and sentences which may be imposed to ensure that other persons engaged in the development industry or persons, particularly home owners, carrying out home extensions observe the planning and building laws of this State when carrying out developments. 16 Against this submission the defendant submits that the experience of the prosecution and the inevitable obligation to pay the council's costs is a salutary lesson which itself will operate as a deterrent both to him and to others who may contemplate taking a similar step. Accordingly, it is submitted that having regard to the elements identified in s 10(3) of the Crimes (Sentencing Procedure) Act 1999 it is appropriate in this case that although I should find the defendant guilty, I should not proceed to conviction. 17 I am satisfied that many elements relevant to the exercise of my discretion under s 10 are present in this case. The defendant's character, reflected in the references which have been tendered, and his unblemished record are such that if I am otherwise satisfied of relevant matters, s 10 may be appropriate. 18 As I have indicated, the offence was committed in circumstances which brought no personal benefit to the defendant and where he was seeking at all times to manage a practical problem in an effective way. Section 10(3) requires me to have regard to the "trivial nature" of the offence. In the present case, as I have indicated, the offence occurred in circumstances where because of the form of the condition imposed by the council, condition C(9) was likely to prove an impediment to the timely completion of the work. That turned out to be the case. Undoubtedly the defendant could have and should have at that point of time sought advice and approached the council to seek to have the condition varied. The fact that the council ultimately agreed to this course is testimony to the fact that the difficulties which the condition created were capable of practical and simple resolution. 19 Having regard to the practical problem, acknowledging that the defendant made a wrong choice, I am nevertheless satisfied that this is a matter appropriate for the exercise of my discretion under s 10. In making that decision I have also have had regard to the fact that the order for costs which I will impose will itself impose a significant financial burden upon the defendant. In the present circumstances I am satisfied that the extent of that burden is sufficient to send an effective message to the community of architects so that they as a professional body will remain conscious of the obligations which they have to manage their affairs in accordance with the relevant legislation. 20 Accordingly, I find the defendant guilty of the offence as charged but do not proceed to conviction. I order the defendant to pay the council's costs as agreed or assessed. **********