Land and Environment Court of New South Wales CITATION : Waverley Council v Boris Meck [2005] NSWLEC 655 PROSECUTOR: Waverley Council PARTIES : DEFENDANT: Boris Meck FILE NUMBER(S) : 50007 of 2005 CORAM: Bignold J KEY ISSUES: Development Consent :- Carrying out development without consent - Existing development consent for an attached dual-occupancy development – Additional work undertaken without approval – Plea of guilty – Mitigating factors LEGISLATION CITED: Environmental Planning and Assessment Act 1979 s125 CASES CITED: R v Olbrick 199 CLR 270 DATES OF HEARING: 20 September 2005 EX TEMPORE JUDGMENT DATE : 09/20/2005 PROSECUTOR A Hudson, Solicitor SOLICITORS Wilshire Webb LEGAL REPRESENTATIVES: DEFENDANT I Hemmings, Barrister SOLICITORS John Lloyd and Co JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES BIGNOLD J 20 September 2005 50007 of 2005 WAVERLEY COUNCIL v BORIS MECK JUDGMENT 1 HIS HONOR: The Defendant has pleaded guilty to a charge of an offence against the Environmental Planning and Assessment Act, s 125(1) in that he did carry out development on land without development consent having been obtained in circumstances where the relevant planning instrument operating in conjunction with the Environmental Planning and Assessment Act required Council approval for the carrying out of development for the purposes of a dual-occupancy. The charge alleges that the offence was committed between 20 February 2004 and 29 November 2004. 2 The parties' legal representatives have presented the case efficiently and succinctly. The circumstances of the admitted offence are chiefly contained in the Statement Of Agreed Facts which the parties have jointly tendered as Exhibit 1, together with an Affidavit of Mr Phillip Bull who is employed by Waverley Council as the Area Manager, Development and Building Assessment to the southern area, and Exhibit 2 which chronicles the history of this particular development. That history commences with the lodging of the development application in 2002 for the construction of an attached dual-occupancy development following the demolition of an existing house located at premises known as number 12 St Thomas Street Bronte. 3 The development site for what became an approved dual-occupancy development when the Council granted consent on 2 August 2003 is a steeply sloping site, sloping from the street frontage down the block. 4 In addition to the evidence contained in the relevant facts contained in the Statement Of Agreed Facts and Mr Bull's Affidavit, I have the evidence of the Defendant in his sworn Affidavit of 14 September 2005. 5 The unauthorised development comprised the excavation of a portion of the development site which did not have the benefit of development consent and the extension of the approved building as it were, subterraneously into that area. The area of the unauthorised works comprising the extra excavation into the hill and the extension into that area of the ground floor slab which supports the building is laterally, on average, about two to two and a half metres in depth and extending across the block perhaps 14 or 15 metres. 6 The circumstances in which that particular work was undertaken are detailed in the Defendant's Affidavit to which I have referred. The Defendant is co-owner with his cousin of the development site. They purchased the existing property with the intention of building for themselves their family homes which took the form, as I have said, of the detached dual-occupancy approved by the Council in August 2003. Construction Certificate plans and the Certificate were issued by a private certifier at the end of 2003 and development pursuant to the development consent and the construction certificate was commenced in 2004. It was during the excavation and early stage of construction in August 2004 that the Council became aware of the fact that the development involved a greater extent of excavation and of lateral extension of the lowest level floor slab. As a result of dialogue with the Defendant, work on that particular aspect of the project was suspended and the Applicant immediately set about seeking to amend the situation by lodging a s96 application with the Council in September of that year. 7 The Defendant in pars 33 to 51 of his Affidavit deposes to the circumstances in which the unauthorised works were carried out. That evidence, which is supported by documentary materials of a corroborative nature, indicate the circumstances in which the form of construction of the approved building was devised by engineers following geotechnical engineering advice and, more relevantly for present purposes, how that level came to be extended, to the dimensions that I have earlier mentioned, further into the hill. 8 The circumstances relevantly were that whilst excavation into the hillside was being undertaken in early 2004 the Defendant's builder encountered rock. The consulting engineer advised the builder of the necessity to remove the rock and on 3 August 2004 issued an instruction for the removal of the rock floater and for the compaction of the exposed sand once the rock was removed. That work was undertaken by the builder and required some fifty-eight hours work to secure its removal and the compaction of the sand. The construction engineer gave advice as to what to do with the resulting landform. 9 In par 43 the Defendant says: In order to stabilise the area [from which the rock floater had been removed] the raft slab [being the lowest level of the approved development] was extended to cover the newly excavated area. Because the majority of the site was sand, once the rock had been removed it was necessary to construct retaining walls to hold back the sand that remained within the site. 10 The Defendant in par 45 indicates that the walls that were constructed served multiple functions including structural and retaining wall function. 11 In par 46 the Defendant says it was he who gave instructions to his builder for the walls to be constructed and in so instructing the builder was acting upon his structural engineer's advice. 12 As I say, this evidence was not challenged. The Defendant was not required for cross-examination and the facts deposed to are corroborated by documentary evidence emanating from the structural engineer. 13 In pars 47 and following the Defendant says: At the time the walls were constructed I knew that I did not have development consent to use the area within the space to be created by those walls, that space having been created as a result of the removal of the rock and the over-excavation. I intended to use it only if I was able to get consent for its use. It was a simple matter for me to simply seal off the area and complete the construction in accordance with the construction certificate plans. In those circumstances I presumed, I now realise incorrectly, that the over-excavated area would be treated just like any other underground structural part of the building. 14 What subsequently happened after the Defendant sought to remedy the position by the lodging of the s96 application was that the Council refused the application and an appeal was brought to this Court. It was heard on 29 April this year and by her decision on 6 July 2005 Commissioner Tuor approved the modification application. That application included the completion of the building in the over-excavated area and the use of that part of the lowest floor level. It also granted approval for the use of the lowest floor level. The gravity of the admitted offence 15 A suggestion has been made in the Prosecutor's case and submissions that the end result should not be viewed by the Court as being entirely accidental but should somehow be seen to be the contrived result of the original intention to have an entire fourth floor available within the development. As Defence Counsel has ably pointed out that submission is confronted by some hard facts in this case which preclude the Court from making a relevant finding that such was the conduct and intention of the Defendant to obtain his original plans by the circuitous route that has subsequently befallen this case. 16 In particular there is the unchallenged evidence of the Defendant himself, to which I have referred. That evidence is corroborated by the structural engineer's documentary materials and there is nothing in the prosecution evidence that rises higher than suspicion. Any matter in dispute relevant to sentence of course even on a plea of guilty must be established beyond reasonable doubt; see the High Court decision in R v Olbrick 199 CLR 270. The evidence in this case does not rise even to the level of proof on the balance of probabilities. Indeed the material put before the Court does not in my view rise higher than suspicion. Accordingly, any suggestion in the evidence that the Defendant was, via a circuitous means, obtaining an ultimate benefit for which he originally held out his hopes, simply fails. I am entirely satisfied on the evidence that the circumstances in which the admitted offence was committed are those deposed to in the Defendant's Affidavit, which I have earlier recited. 17 It is true that the Defendant, who is engaged in the development industry, is not a novice in the intricacies of the planning laws. However, on the facts of this case the development site was extremely sensitive and there were difficulties with the approved development itself, both conceptually and practically, creating problems of design and engineering achievement. Given those difficulties, the Defendant's mistaken view that the over-excavation area and the resulting building work placed therein could be regarded as part of the structural foundations for the building is neither fanciful nor unrealistic. However, to his credit he candidly admits that that view that he held cannot be sustained and acknowledges that it was an incorrect view. 18 My assessment of the gravity of the offence is one which justifies the conclusion that the particular offence charged and admitted lies at the lower end of the range of gravity of offences within the wide spectrum of offences created by the Environmental Planning and Assessment Act, s125. I do not regard the case as one of a person blithely or boldly or blatantly carrying out development without approval independently of the fact and the context that the development was being carried out for an approved dual-occupancy development. That does not mean, of course, that a person with an approval under the Act can take liberties in extending or altering the approved plans. However, in the particular circumstances of this case I am of the clear opinion, supported by the evidence in the case, that the development was integrally related to the carrying out of the approved development and arguably sanctioned by what had been approved having regard to the nature of the work carried out involving the excavation caused by the removal of the rock floater and the necessity to consolidate the resulting hole in the ground. For similar reasons, I am of the view that the subjective culpability of the Defendant in this case also should be regarded fairly as being at the lower end of the spectrum. 19 Having rejected the suspicion or suggestion that the Defendant was in a round about way seeking to gain an advantage for himself, I also find that his view and opinion, even as an experienced developer, of the nature and quality of the over-excavation and the resulting building work was not fanciful or far-fetched but was arguably correct, although ultimately properly conceded to be incorrect. 20 Having regard to my assessment of the objective gravity of the offence and the subjective culpability of the Defendant in the commission of the admitted offence and also to the conceded fact that, being essentially subterranean and not seen externally to the development, there are no adverse environmental consequences of the commission of the offence, I am of the opinion that only a moderate penalty is called for in the present case. 21 The factors in mitigation include the plea of guilty entered at the earliest time, the expression of genuine contrition, an apology found in pars 52 to 56 of the Defendant's Affidavit and the entire cooperation with the Council in its investigation of the matter including the cessation of works on the affected aspects of the approved development pending what ultimately proved to be a positive outcome for the Defendant in the s96 appeal to this Court. 22 I am of the opinion that the appropriate penalty to impose in the present case is one that is reflective of the gravity of the offence as evaluated by me including the Defendant's subjective culpability both of which for the reasons given are held to be at the lower end of the spectrum and that given the benefit globally of mitigating circumstances a significant discount in the penalty that otherwise would be applied should be applied in the present case. I am of the opinion that the appropriate penalty in all of the circumstances of the present case is $20,000. The Defendant has also agreed to pay the Prosecutor's costs in the same amount and in assessing penalty I have also taken into account the Defendant's preparedness to pay that amount. 23 For all of the foregoing reasons accordingly I make the following orders: 1. The Defendant is convicted of the offence as charged. 2. A penalty of $20,000 is imposed in respect of that conviction. 3. The Defendant shall pay the Prosecutor's reasonable legal costs in the agreed amount of $20,000. 4. The exhibits, except for Exhibit 1 being the Statement Of Agreed Facts, 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. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.