Land and Environment Court of New South Wales CITATION : North Sydney Council v Moline; North Sydney Council v Tomkinson [2008] NSWLEC 57 50007 of 2007 PROSECUTOR North Sydney Council DEFENDANT James Moline PARTIES : 50008 of 2007 PROSECUTOR North Sydney Council DEFENDANT Alan Tomkinson FILE NUMBER(S) : 50007; 50008 of 2007 CORAM: Preston CJ KEY ISSUES: Prosecution :- offence of carrying out development not in accordance with development consent - defendants' applications at close of prosecution case - submission that no case to answer - submission that Court should exercise discretion to stop case and direct verdict of not guilty - submission that no offence because of modification of development consent operated retrospectively LEGISLATION CITED: Environmental Planning and Assessment Act 1979 s 76A, s 96, s 125 Home Building Act 1989 s 92 Kendall Street Developments Pty Ltd v Byron Shire Council (No.2) (2004) 138 LGERA 360 Mirvac Projects Pty Ltd v Ku-Ring-Gai Council and Inglis [2007] NSWLEC 540 CASES CITED: Queen v Prasad (1979) 23 SASR 161 Willoughby City Council v Dasco Design and Construction Pty Ltd (2000) 111 LGERA 422 Windy Dropdown Pty Ltd v Warringah Council (2000) 111 LGERA 299 DATES OF HEARING: 6 February 2008, 7 February 2008 EX TEMPORE JUDGMENT DATE : 7 February 2008 PROSECUTOR Mr T Howard (barrister) SOLICITORS Maddocks Lawyers DEFENDANT - 50007 of 2007 LEGAL REPRESENTATIVES: Mr M Pesman (barrister) SOLICITORS Day Dockerill DEFENDANT - 50008 of 2007 Mr J Ayling SC SOLICITORS Wilshire Webb Staunton Beattie JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES PRESTON CJ 7 FEBRUARY 2008 50007 OF 2007 50008 OF 2007 NORTH SYDNEY COUNCIL V JAMES MOLINE NORTH SYDNEY COUNCIL V ALAN TOMKINSON JUDGMENT 1 HIS HONOUR: At the close of the prosecutor's case in proceedings number 50008 of 2007, the defendant Alan Tomkinson made a no case to answer submission. Mr Tomkinson submitted that on the evidence as it stands there is no evidence with respect to every element of the offence charged which, if accepted, would prove that element. In particular, Mr Tomkinson submitted that there is no evidence establishing that Mr Tomkinson was a person who carried out development not in accordance with the development consent as charged. 2 The offence with which Mr Tomkinson is charged is that between about 1 November 2005 and about 13 March 2006 at 120 Ben Boyd Road, Neutral Bay in the State of New South Wales he committed an offence against s 125(1) of the Environmental Planning and Assessment Act 1979 in that he did the following thing which was forbidden to be done by s 76A(1)(b) of the Act: "he did carry out development on land otherwise than in accordance with a development consent which had been obtained and was in force in respect of the development where an environmental planning instrument applied to the land and provided that the development may not be carried out except with development consent." 3 The manner in which the development was carried out not in accordance with conditions of consent is particularised in the summons as follows: "In contravention of condition 1 of the development consent [development consent number D189/05 the subject of notice of determination issued by North Sydney Council dated 1 November 2005], the development was not carried out in accordance with the approved plans identified in condition 1 in that: + excavation works were carried out outside the area approved for excavation on the approved plans; + the location of the basement walls and a concrete slab did not conform with the approved plans; + a concrete block wall built parallel to the land's northern boundary was not shown on the approved plans; + the development was carried out such that the building was larger and the setbacks from the boundaries smaller than was approved by way of the approved plans. Further particulars are provided in the affidavit of Long Huynh sworn 20 June 2006. " 4 The manner of contravention is particularised in the summons as follows: "At all material times the defendant was a registered proprietor of the land and a beneficiary of the development consent. The defendant was responsible for the carrying out of the development. The said development was carried out for and on behalf of the defendant and/or at his direction." 5 The prosecutor contends that Mr Tomkinson is therefore liable directly, both personally and vicariously. 6 I am satisfied that there is evidence of each element of the offence charged, on which Mr Tomkinson could lawfully be convicted. 7 The evidence of Ms Amy Young, a compliance officer with North Sydney Council, establishes that the property is zoned residential B under North Sydney Local Environmental Plan 2001. In that zone, development for the purpose of attached dwellings (the relevant purpose of the subject development) could only be carried out with development consent. Section 76A(1) of the Environmental Planning and Assessment Act 1979 provides: "If an environmental planning instrument provides that specified development may not be carried out except with development consent, a person must not carry the development out on land to which the provision applies unless: (a) such a consent has been obtained and is in force, and (b) the development is carried out in accordance with the consent and the instrument." 8 A development application was made on 4 May 2005 and development consent was granted on 1 November 2005 to carry out the subject development for the purpose of attached dwellings. Condition A1 of the development consent required the development to be carried out in accordance with the drawings specified therein. 9 The drawings specified that the northern face of the northern wall of the building containing the three attached dwellings was to be "4050 mm" from the northern boundary. This dimension is shown in each of the drawings DA/01 basement car parking, DA/02 ground floor plan, and DA/03 first floor plan. The short section BB in DA/08 confirms that the outer face of the wall on each of the basement, ground floor and first floor align. At the ground level immediately outside the outer face of the building are paved courtyards. No excavation is depicted underneath the courtyards. 10 DA/10, the erosion and sediment control plan, also shows the outline of the building (within which the words "area of excavation" occur) as being setback at its northern face "4050 mm" from the northern boundary. 11 The evidence of Mr Long Huynh, the Team Leader-Building Compliance at the Council, establishes that excavation and building works were carried out after the grant of development consent on 1 November 2005 through to at least 13 March 2006 which were not in accordance with these approved drawings and hence condition A1 of the consent. In particular, Mr Huynh's evidence is as follows. 12 On 24 November 2005, Mr Huynh observed excavation up to approximately two metres from the northern boundary of the site, such excavation being confirmed by photographs taken at the time of his inspection. 13 On 20 December 2005, Mr Huynh observed excavation up to approximately two metres from the northern boundary, such excavation again being confirmed by photographs taken at the time of his inspection. 14 On 14 February 2006, Mr Huynh observed building works including the erection of two concrete block walls, each parallel to the other and parallel to the northern boundary. The outer or northern most wall was measured as being approximately two metres from the northern boundary and the inner wall was measured as being approximately 3.5 metres from the northern boundary. The measurement was done using a measuring tape with Mr Dean Tomkinson, Mr Alan Tomkinson's son who was the site supervisor, reading the tape and calling the measurements to Mr Huynh who recorded them. 15 In between the two walls, a concrete slab had been poured. Steel starter bars protruded at intervals along the slab. The inner wall had openings permitting access to the space between the walls from the car park area. Mr Huynh took photographs at the time of his visit of these building works. 16 Other evidence is corroborative that excavation and building works were carried out not in accordance with the approved plans and condition A1 of the development consent. 17 On 3 November 2005, application was made pursuant to s 96 of the Environmental Planning and Assessment Act 1979 to modify the development consent that had been granted on 1 November 2005 by enlarging the basement car park by moving the northern wall two metres to the north so that the northern face of the wall would be 2,050 millimetres from the northern boundary. 18 On 1 December 2005, Mr Moline, the defendant in proceedings 50007 of 2007, wrote to the Council stating: "We advise in accordance with your suggestion, we have stopped any further excavation to the western section of the basement, so that it will not be considered to be an overexcavation when the variation is approved." 19 In the Council officer's report on the s 96 application to the Council meeting of 12 December 2005, it is noted that: "The excavations have been undertaken in accordance with the basement design for which approval is sought under the s 96 application rather than the design for which approval has been granted." 20 The Council resolved on 12 December 2005 to refuse the s 96 application. 21 A plan showing "grid setout on basement slab" prepared by K H Zeggelink & Associates Pty Ltd, consulting surveyors, said to be prepared for "Moline Associates Architects and Dean Tomkinson", dated 5 February 2006, shows the basement slab as being "3.69 m" from the northern boundary. 22 On 10 January 2006, Mr Owen Haviland, architect, produced an architectural drawing, the basement floor plan, for the development. The client is stated to be "Mr Alan Tomkinson". The basement floor plan shows the outer face of the northern wall of the basement to be "2,050 mm" from the northern boundary. An internal wall, parallel to the outer wall, is shown 3,690 mm (2,050 mm plus 1,640 mm) from the northern boundary. Between the two parallel walls, four stores are shown, separated from each other by short, internal, north-south running walls. Openings are shown to access the stores from the car park area. 23 On 14 February 2006, during the inspection by Mr Huynh of the site, Mr Huynh discussed with Mr Dean Tomkinson the two walls and the void between. As I have noted, Mr Dean Tomkinson and Mr Huynh measured the distance of these walls from the northern boundary. The statements by Mr Dean Tomkinson at the time corroborates the observations of Mr Huynh concerning the erection of the two walls and the void in between as being in variance to the approved plans, although Mr Dean Tomkinson said that they were in accordance with other plans, being his engineer's drawings. In fact, the excavation and building works were consistent with Mr Owen Haviland's basement floor plan of 10 January 2006. 24 Correspondence from Mr J Harrison, an engineering consultant engaged on the development project, to the Council dated 16 February 2006, states that the Council was aware of the "excavation work consistent with a s 96 application lodged with the Council at that time". The letter continued: "The s 96 application was to enlarge the garage area of the building to facilitate car parking. The proposal would not have affected the external appearance of the building as it was contained under the rear ground floor patio slabs. When, unfortunately, the section 96 application was refused the structure required support on the perimeter of the patio slabs and the internal wall was constructed in accordance with the approved plans. Even without the additional excavation it would have been necessary to construct some form of footing and support to the patio slab which would have been founded on rock. This has created the void in question and access was required to this area in order for the formwork of the ground floor slab to be constructed and later removed. It is also prudent to provide access to this area should future maintenance be required. As it stands the work carried out has involved the owner in considerable expense in excavation and tipping of the soil and rock and the construction of a fully reinforced concrete block retaining wall. Again this work will have no visible impact to the exterior of the building which will comply with the original approved plans." 25 On 21 March 2006, Mr Owen Haviland, the architect engaged for the client described as Mr Alan Tomkinson, wrote to the Council's solicitors submitting for consideration a "solution" to "hopefully overcome Council's concerns": "1. Demolish existing northern block wall down to rock levels as shown on Architectural cross section and marked in green slashes on Engineers documentation. 2. Demolish existing block wall as marked in pink on Engineers documents. 3. Construction of a wall 200m block wall inside the face on the existing block wall to obtain the approved setback so shown on the development application. (Note the retained block wall is under and partly supports the concrete terraces)." 26 On 23 May 2006, a further s 96 application was lodged with the Council seeking to modify the development in various ways and extending the northern wall 360 millimetres closer the northern boundary. The Council officer's report on the application noted that: "The modification application seeks retrospective approval for some minor excavation works to the north, east and south building alignment. As set out above, Council's Compliance Team have identified that the excavation at basement level undertaken without development consent is an area of approximately 2m north of the approved basement wall along its full width. The current s 96 modification seeks consent for an extension of the basement 360mm to the north of the approved building line along the basement's width. Therefore, should the modification application be approved as proposed, there would remain a substantial proportion of unauthorised excavation north of the approved basement building line. It is considered in order to facilitate and support the proposed works, a condition of consent is recommended to be imposed to require the applicant to infill this area illegally excavation[sic] with clean fill. This will facilitate also the construction of the approved courtyards approved in this area north of the building line, in accordance with the terms of this development consent." 27 The Council resolved to approve the s 96 modification and it was granted on 14 August 2006. Condition A1 was replaced so as to refer to the new plans which showed the setback of the northern basement wall from the northern boundary to be 3,690mm, instead of the formerly approved 4,050mm. A new condition E18 was imposed stating: "Upon completion of the basement walls, the applicant shall infill that area north of the approved basement boundary, with clean fill. The resulting ground level shall be reinstated to approximately that of the ground level prior to excavation, having an RL of 80.4." 28 I am satisfied that this evidence of the prosecution, as it stands, is evidence with respect to the element of the offence charged that development was carried out not in accordance with the development consent in the relevant period, in breach of s 76A(1) and s 125(1) of the Environmental Planning and Assessment Act 1979, which evidence, if accepted, would prove those elements. 29 In particular, the evidence, if accepted, would establish that an area was excavated northwards of the outer face of the northern basement wall (shown to be 4,050mm from the boundary) to within approximately 2m of the northern boundary. The carrying out of this excavation is not consistent with the approved plans the subject of the original consent. The building proposed and approved by the original development consent did not require excavation to within two metres of the northern boundary. The outermost wall was 4,050mm from the northern boundary. The erosion and sediment control plan shows the area of excavation to be within the building envelope which is depicted as being 4,050mm from the northern boundary. 30 More importantly, however, the northern courtyards at ground level on the northern side of each of the attached dwellings are shown as being constructed on natural or existing ground and do not have either an excavation or void underneath them, or piers or other supports for the courtyard slabs. This is evident in the ground floor plan DA/02, the north elevation in DA/06, the east and west elevations in DA/07, the long section AA and the short section BB in DA/08 and the amended landscape plan DA/09. Any excavation under each of the courtyards would not enable the construction of the courtyards in accordance with these plans. 31 Further, the stormwater drainage concept plan shows drainage lines with invert levels at 80.10, 80.23 and 80.35, immediately to the north of the outer face of the northern wall of the building. Short section BB in DA/08 shows the ground level at this point to be 80.5 and the basement level to be 77.9. There is, therefore, no excavation to basement level underneath the drainage lines which are on the surface at ground level immediately outside the northern face of the building where the courtyards are located. 32 Within the void created by the excavation, two walls were built, an outer northern wall being approximately two metres from the northern boundary and an inner wall being approximately 3.5 metres from the boundary. In between the walls, a slab had been poured. Openings in the inner wall allowed access from the car park area to the space between the two walls. Steel starter bars appeared in lines at intervals corresponding with the opening. The works are consistent with the walls and structures shown in the Owen Haviland basement floor plan dated 10 January 2006. These excavation and building works are not in accordance with the approved plans. 33 I am also satisfied that there is evidence which, if accepted, would prove that Mr Alan Tomkinson was a person who carried out such development not in accordance with the development consent in breach of s 76A(1) and s 125(1) the Environmental Planning and Assessment Act 1979. That evidence includes the following. 34 On 31 October 2005, after the development application had been submitted, but before the development consent was issued on 1 November 2005, Mr Alan Tomkinson wrote to the general manager of the Council stating: "Re 120 Ben Boyd Road Neutral Bay, DA189/05 This development application was submitted in the last week of April 2005 following a Pre-DA meeting and several consequent meetings to address any/all issues for approval. Following submission and extensive delays due to unknown reasons we were asked to amend and modify the application on several occasions for design elements that had previously been acceptable at least not raised as issues. Eventually we were advised that the Consent had been granted and was awaiting signing, at which time we arranged for the PCA to prepare the Construction Certificate and commence managing the construction process, by means of confirming bookings for sub-contractors and the like. We remind you that it is very difficult to fit within sub-contractors availability and schedules. Two weeks later and again the consent has not been issued, whilst we have people charging delay rates as they stand around waiting. These delays are not acceptable and have caused us great cost and damages. Why does it take weeks to have a document signed? We wish to make an application with you tomorrow morning at 9am to resolve this issue and collect the Development Consent." 35 The letter was signed on behalf Mr Alan Tomkinson. 36 On 3 November 2005, the first s 96 application lodged with the Council described the applicant as being both "James Moline and Alan Tomkinson" and the owners of the land as being "James Moline, Alan and Ruby Tomkinson". I note that Dean Tomkinson signed the owner's consent "as attorney for A and R Tomkinson". 37 On 23 November 2005, the Council received notification of the appointment of Mr Paul Fitzgerald as Principal Certifying Authority (PCA) and a notice to commence work. The notification of appointment of PCA identified Alan Tomkinson, Ruby Tomkinson and James Moline as owners and was signed by each and dated 21 November 2005. Mr Fitzgerald issued a construction certificate, CC 2005/040, dated 21 November 2005, for the building work, which construction certificate attached tendering and pre-contract information and specification for the construction of three attached dwellings "for Alan Tomkinson, Ruby Tomkinson and James Moline". 38 On 24 November 2005, Mr Huynh had a conversation with Mr Dean Tomkinson, Mr Alan Tomkinson's son, during which Mr Dean Tomkinson rang Mr Alan Tomkinson from his mobile phone and said to Mr Huynh that Mr Alan Tomkinson wanted to speak to Mr Huynh. A conversation then followed between Mr Huynh and Mr Alan Tomkinson in which Mr Alan Tomkinson made statements concerning his ownership of the land, payment of monies to the Council and carrying out excavation on the land, as well as his responsibility for works on the site. The conversation recorded by Mr Huynh which illustrates these points is as follows. "Alan said: Who am I speaking to? I said: Long Huynh. Team leader Building Compliance North Sydney Council. Alan said: Who is the idiot that ordered stop work on my site? I said: It was not an order...But advice. In any case, it was me! I gave him the reasons for my advice. Alan said: For fuck's sake. I am sick that the fuckin David Moore get you fuckin idiots from the Council to harass me. I said: Alan, I am more than happy to discuss this matter with you in a civil manner. But if you continue to swear and use inappropriate language, I will terminate this conversation. Alan said: Do you know who I am? I am the owner of this land. This is my property. I own this land and therefore I will excavate as much as I want to. I have just paid $25,000 to the Council. A substantial amount. This makes me your boss. I will call the GM and the Minister to have you fired. I said: Is this a threat? Can I take this as a threat that you will have me fired through your associations? I will record this. Alan said: It's not a threat. It is a promise. I said: Fine. Let's get back to the issues... I then explained to Alan what I had said to Dean beforehand. I reiterated that it is my interpretation that works are not in accordance with the approval and that it appears to be consistent with the section 96 application that was not yet determined by Council. I again advised him to stop excavating until the s 96 determined to be approved. Alan said: Your advice is fucked. I will not follow that advice. I said: That's entirely up to you. Who is responsible for all the works on this site? Alan said: Technically, James Moline is the official builder, but I own this land. So the bottom line is me." 39 On 2 February 2006, Mr Alan Tomkinson wrote to Ms Zoe Cox at the Council stating: "Re: Development 120 Ben Boyd Road, Neutral Bay I've read the documentation forwarded to my wife (Mrs R Tomkinson) regarding objections and complaints made in respect of the above development. However at the Council meeting of 12 December, a letter was read aloud which contained slanderous comments in relation to myself and business partner Mr James Moline. As this letter was publicly read I would suggest that it cannot be considered an exempt document and request copy of same. Your comment in paragraph 5 A document is an exempt document if it contains matter the disclosure of which would involve the unreasonable disclosure of information concerning the personal affairs of any person (whether living or deceased). The blotted out portion of letter dated 7th December to Mark Schofield is in reference to myself and as I am the person concerned I feel that this section is pertinent to me and demand a full unedited copy. In addition paragraph 3 of the letter dated 7th December states that a 6ft asbestos fence on Lindsay Street was buried in various areas of the property, the bulk being under the kitchen window which was higher than the ground level. Be advised that the only asbestos on site, from the roof of the old house, was professionally removed adhering to all safety regulations during which time workplace cover inspected and approved the site. There was no asbestos buried under the kitchen window as stated in the above letter, and if there had been any there at any time I would be interest to know who buried it and how the writer of this letter knew it to be thus placed. Other points and comments made are unfounded and completely untrue. Safety inspections have been carried out on the site on numerous occasions, usually after a telephone call from the writer of your letter, and workplace will confirm that there has not been anything out of order. We have been subjected to many nuisance calls and complaints since the initial purchase of 120 Ben Boyd Road and have even been threatened. There is some history regarding previous sale of the property which has enraged some decendents [sic] of the original owners, however we are not privy to the full details nor do we consider it our concerns. However it is in the interests of council to be aware that there is, or has been, some vendetta concerning 120 Ben Boyd Road and it would appear that we, the most recent purchasers, are being victimised. I might add that it was disappointing that comment was made by council in respect to unauthorised work with a demolition, again unfounded as on receipt of council consent it was legal for us to commence knocking down the house on the site. We, myself and Mr J Moline, were inadvisedly instructed not to make comment at the council meeting and therefore not being registered were unable to make known our side of the many issues raised. This would seem, although in accordance with your regulations, completely unfair since we are the main interested parties whereas a member of the public with no further connections to the property is given the forum to slander us. I do feel that the comments made by this person weighed greatly on the decision of council that night which actually went against the recommendations of North Sydney's own building and planning staff." 40 The meeting to which Mr Alan Tomkinson refers in this letter is the meeting of Council on 12 December 2005 at which the Council resolved to refuse the s 96 application that Mr James Moline and Mr Alan Tomkinson had jointly made. Mr Alan Tomkinson was present at the Council meeting on 12 December 2005 and indicated his preparedness to give "our side of the many issues raised" (although he did not do so because "we, myself and Mr J Moline, were inadvisedly instructed not to make comment at the council meeting"). These facts reveal active involvement in the development project by Mr Alan Tomkinson. 41 On 10 February 2006, Mr Owen Haviland produced the basement floor plan to which I have earlier referred showing the client as "Mr Alan Tomkinson". 42 On 15 February 2006, Ms Marise Van Der Walt of the Council wrote to Mr Moline, with a copy of the letter to Mr Alan and Mrs Ruby Tomkinson in relation to the alleged illegal excavation and building works. 43 On 3 March 2006, the Council solicitor's, Maddocks, wrote to Mr James Moline and Mr Alan Tomkinson seeking, inter alia, various undertakings to cease further work. 44 Also on 3 March 2006, Mr Huynh wrote to Mr Haviland, with a copy to Mr Alan Tomkinson, about the allegedly illegal excavation and building works. 45 On 7 March 2006, Mr Alan Tomkinson attended a meeting at North Sydney Council with Mr Owen Haviland, Ms Marise Van Der Walt and Ms Jodie Wauchope, a solicitor with Maddocks, also attending the meeting. 46 Later on 7 March 2006, Council's solicitors, Maddocks, wrote to Mr Owen Haviland recording the discussions that occurred at that meeting at which Mr Alan Tomkinson had attended and seeking various undertakings to cease further works. 47 On 13 March 2006, Mr Owen Haviland replied to the correspondence from the Council's solicitors stating: "On instructions from our client, Mr Alan Tomkinson, we now provide you an undertaking that work will now cease on the site until the alleged non-compliance has been addressed and resolved." 48 Mr Haviland requested an urgent meeting with the Council's compliance unit: "to discuss a solution which will be to all parties [sic] satisfaction." 49 A copy of the letter was recorded as being sent to Mr Alan Tomkinson. 50 On 21 March 2006, Mr Owen Haviland wrote the letter submitting the "solution" to which I have earlier referred which included demolition of the northern walls. 51 Furthermore, the evidence establishes that Mr Dean Tomkinson, Mr Alan Tomkinson's son, was authorised to act as site supervisor and hence an agent for Mr Alan Tomkinson. Mr Dean Tomkinson's various statements concerning over-excavation and construction of the building works including the walls, are admissions against Mr Alan Tomkinson. 52 The evidence as it stands, if accepted, is sufficient to establish that Mr Alan Tomkinson directly, either personally or vicariously, carried out the development which was not in accordance with the approved plans. 53 The carrying out of the development was a joint business venture between James Moline and Alan Tomkinson (with possibly Ruby Tomkinson as a silent partner). James Moline, Alan Tomkinson and Ruby Tomkinson purchased the land for the purpose of carrying out the development. They held the land jointly. James Moline was the architect for the project. He prepared and submitted the development application for the development in his name. 54 Nevertheless, Mr Alan Tomkinson personally wrote to the Council, on 31 October 2005, the day before the consent was issued, complaining of the delay in issuing the development consent, using the plural "we" and "us", clearly indicating his joint involvement in the project. Mr Alan Tomkinson speaks in these terms inclusive of himself, in relation to the amendment of the development application, being advised by the Council that consent had been granted, arranging for the Principal Certifying Authority (PCA) to prepare the construction certificate (it being remembered that the PCA's documentation refers to the development being for James Moline, Alan Tomkinson and Ruby Tomkinson) and commencing managing the construction process by means of confirming bookings for subcontractors and the like. Mr Alan Tomkinson speaks of the difficulty to fit with subcontractors' availability and schedules and being charged delay rates by subcontractors who stand around waiting. Finally, Mr Alan Tomkinson says "[w]e wish to make an appointment…to resolve this issue and collect the Development Consent". Such statements and actions are evidence of Mr Alan Tomkinson being an active participant in the development application and the subsequent construction process. 55 The development consent was issued on 1 November 2005, in the name of James Moline. However, the s 96 application made two days afterwards, on 3 November 2005, identified not only James Moline but also Alan Tomkinson as an applicant. Section 96(1) of the Environmental Planning and Assessment Act 1979 specifies that the category of persons who may make application to modify a development consent as including not only the applicant for consent but also "any other person entitled to act on a consent granted by the consent authority". The inclusion, therefore, of not only James Moline (the applicant) but also Alan Tomkinson is an indication of the latter also being a person entitled to act on the consent granted by the Council. 56 Alan Tomkinson was responsible, at least in part, for payment of costs and expenses of the project. He stated he had paid $25,000 to the Council. (The development consent required the payment of moneys by way of s 94 contributions in the sum of $20,017.35 adjusted upwards for inflation to time of payment (condition C26), a bond for engineering construction works of $20,000 (condition C9), and a Home Building Act levy of $3,000 as adjusted (condition F2)). 57 Mr Alan Tomkinson identified himself as a person in control and having the ability to direct actions on site, including by asking to speak to Mr Huynh on the latter's site inspection on 24 November 2005 and by his statements to Mr Huyhn in the telephone conversation. Mr Alan Tomkinson asserted he had control and direction in the actual execution of the work. Mr Alan Tomkinson asserted not only that "I am the owner of this land. This is my property." but further commented in relation to the excavation, "I will excavate as much as I want to" and, in relation to the responsibility "for all the works on this site", that "Technically, James Moline is the official builder, but I own this land. So the bottom line is me". 58 Mr Alan Tomkinson's statements in his letter to the Council on 2 February 2006 evidence his active involvement in the development process. He refers to Mr James Moline as his "business partner". His rebuttal of the allegations in relation to demolition and burying of asbestos in the property revealed detailed knowledge and active involvement of Mr Alan Tomkinson. He speaks in terms inclusive of himself, such as "on receipt of council consent it was legal for us to commence knocking down the house on the site". He later defines "we" to mean "myself and Mr J Moline". He states "we are the main interested parties". 59 Mr Alan Tomkinson's actions and involvements after the excavation and building works were undertaken and Council had expressed concern, corroborate Mr Alan Tomkinson's position of control and ability to give directions to remedy the problem. Mr Alan Tomkinson appointed the new architect, Mr Owen Haviland. Mr Owen Haviland refers to Mr Alan Tomkinson as "our client". Mr Haviland provided solutions to remedy the excavation and building work. 60 Mr Alan Tomkinson was sent copies of the letters from the Council and the Council's solicitor. He attended meetings with both the Council and the Council's solicitor. This led to the giving of undertakings by Mr Owen Haviland on behalf of his client Mr Alan Tomkinson to stop further building works and to undertake remedial works. 61 Having regard to Mr Alan Tomkinson's positions as an owner, a person entitled to act upon the development consent, and an applicant for the s 96 modification, and his active involvement in the development, Mr Alan Tomkinson can be said to be a person carrying out the development on the land. The evidence as it stands, if accepted, is sufficient to establish direct involvement, and it is also sufficient to establish vicarious liability. Mr Alan Tomkinson had sufficient control and direction over the persons who physically excavated the land, poured the slab and built the walls and structures so as to be liable vicariously for their actions, even if he did not personally and expressly direct them to do the works. 62 Accordingly, I am satisfied that there is evidence on each of the elements of the offence of which Mr Alan Tomkinson could lawfully be convicted for the offence charged. I therefore do not uphold Mr Alan Tomkinson's no case to answer submission. 63 Mr Alan Tomkinson made a second submission that, even if there might be sufficient evidence such that the no case to answer submission should not be upheld, nevertheless the evidence for the prosecution is so unsatisfactory that it would be unsafe to convict upon it and I, as trial judge, should stop the case and direct a verdict of not guilty: see the Queen v Prasad (1979) 23 SASR 161 at 162, 175-177. 64 I reject the submission. The evidence for the prosecution in relation to the offence charged against Mr Alan Tomkinson, summarised above, cannot be said to be so unsatisfactory that it would be unsafe to convict upon it. I decline to exercise any discretion to stop the trial and enter a verdict of not guilty. 65 Finally, Mr Alan Tomkinson made a third submission that, as a matter of law, Mr Alan Tomkinson could not have committed the offence charged against him because, at the time of the alleged carrying out of the development, the relevant development consent was not that originally granted but rather that as modified and the evidence did not establish that the carrying out of the development which was undertaken was not in accordance with the consent as modified. This submission relied on s 96(4) of the Environmental Planning and Assessment Act 1979 to have a retrospective effect. Section 96(4) provides: "The modification of a development consent in accordance with this section is taken not to be the granting of development consent under this Part, but a reference in this or any other Act to a development consent includes a reference to a development consent as so modified." 66 In this case, the original development consent was granted on 1 November 2005. The development involved in the excavation and building works was carried out during the period 1 November 2005 to 13 March 2006 (the charge period). The second s 96 application was made on 23 May 2006 and the s 96 modification was granted by the Council on 14 August 2006. The prosecution was commenced on 30 January 2007. 67 Mr Alan Tomkinson submitted that, once the s 96 modification was granted, s 96(4) had the effect of retrospectively making the development consent to be that as modified. Hence, the relevant reference point for determining whether development was carried out in accordance with a development consent under s 76A(1) and s 125(1) of the Act, is the consent as modified not the consent as originally granted. Mr Alan Tomkinson submitted that that construction is consistent with the obiter statement by Talbot J in Windy Dropdown Pty Ltd v Warringah Council (2000) 111 LGERA 299 at 304[31]. 68 The construction of s 96(4) for which Mr Alan Tomkinson contended was rejected by Bignold J in Willoughby City Council v Dasco Design and Construction Pty Ltd (2000) 111 LGERA 422 at 442[102]-443[105]. There, Bignold J held that s 96(4) does not have retrospective effect so as to make legal development already carried out not in accordance with the consent as originally granted but that would have been in accordance with the consent as modified. Any modification of the consent operates prospectively. That construction was also found to be correct by Lloyd J in Kendall Street Developments Pty Ltd v Byron Shire Council (No.2) (2004) 138 LGERA 360 at 369[25] and 371[34]-[35]. Talbot J reconsidered the question in Mirvac Projects Pty Ltd v Ku-Ring-Gai Council and Inglis [2007] NSWLEC 540 and held that s 96(4) does not operate retrospectively. Justice Talbot followed the construction adopted by Bignold J in Dasco Design and Lloyd J in Kendall Street: see at [35]-[36]. Development carried out not in accordance with a consent as originally granted is not made lawful retrospectively by the granting of s 96 approval. 69 I agree with the construction of s 96(4) of the Act held by Bignold J in Dasco Design, Lloyd J in Kendall Street and Talbot J in Mirvac Projects for the reasons they therein state. 70 Accordingly, the grant of s 96 modification on 14 August 2006 did not operate retrospectively so as to make the reference point for determining whether the development that was carried out prior to 14 August 2006 was not in accordance with the development consent, the consent as modified, rather than the consent as originally granted and in force at the time of the carrying out of that development. I therefore reject the third submission. 71 Mr Moline, the defendant in proceedings number 50007 of 2007, also makes the same three applications as were made by Mr Alan Tomkinson. I can deal with the third application concerning the retrospective effect of s 96(4) in the same manner as I have just held for Mr Alan Tomkinson. I reject it for the reasons I have there stated. 72 Mr Moline's no case to answer submission is that the evidence of the prosecution does not establish that the manner in which the development was carried out not in accordance with the development consent, was as particularised in the summons. The summons in the proceedings against Mr Moline is in essentially in the same terms as that which I have set out earlier against Mr Alan Tomkinson. Importantly, the manner in which the development was carried out not in accordance with conditions of consent is identical. A difference does occur in the particulars given for the manner of contravention by the defendant. In the summons against Mr Moline, the manner of contravention is stated to be as follows: "At all material times, the defendant was the registered proprietor of the Land; the applicant for and beneficiary of the development consent; the applicant for the construction certificate issued in respect of the building works authorised under the development consent (No CC2005/040 issued by Fitzgerald Certifiers on 23 November 2005), and the builder named on construction certificate." 73 Mr Moline's submission is that the evidence does not establish a breach in either of the first or the fourth ways which have been particularised of the manner in which development was carried out not in accordance with the conditions of consent. Mr Moline accepts, however, that the evidence, as it stands, is capable of proving the second and third ways in which the prosecutor particularises the manner in which the development was carried out not in accordance with the conditions of consent. 74 Mr Moline submits, however, that the evidence does not prove that Mr Moline was sufficiently involved in the carrying out of the development in the second and third ways particularised so that it could be said that he carried out development not in accordance with the approved plans in those particular ways. Hence, he submits, there is no case to answer against him. 75 I am satisfied that the evidence as it stands, if accepted, would establish that development was carried out not in accordance with the approved plans for the reasons I have given in relation to the no case to answer submission of Mr Alan Tomkinson. 76 I am also satisfied that the evidence as it stands, if accepted, would establish that Mr Moline is a person who carried out development not in accordance with the approved plans, and hence in breach of s 76A(1) and s 125(1) of the Act. 77 It is true that the evidence might not establish that Mr Moline personally drew an architectural plan for the building works that ultimately were constructed and that were seen on the inspection on 14 February 2006. Mr Owen Haviland did that by the basement floor plan of 10 January 2006 and the subsequent s 96 application that was approved in August 2006. It may also be true that the evidence does not establish that Mr Moline personally undertook the physical works of excavation or building the walls or other structures that are not in accordance with the approved plan. 78 Nevertheless, Mr Moline was actively involved in the development project. The evidence establishes the following. 79 Mr Moline purchased the land with Mr Alan Tomkinson and Mrs Ruby Tomkinson for the purpose of carrying out the development. 80 Mr Moline is a business partner of Mr Alan Tomkinson in that development project. As much was stated by Mr Alan Tomkinson. It is consistent with the evidence of Mr Moline's involvement in the project. 81 Mr Moline continued to be a joint owner of the land throughout the charge period. 82 Mr Moline prepared and submitted the development application to the Council. The development consent granted by the Council on 1 November 2005 was issued in his name. 83 Mr Moline was one of the persons who appointed Mr Fitzgerald as the Principal Certifying Authority and gave notice to the Council of that fact. Mr Moline signed the notice to this effect, to the Council. 84 Mr Moline was the holder of the contracts of insurance complying with s 92 of the Home Building Act 1989 in respect of the development. The three insurance certificates dated 31 October 2005 and 1 November 2005 (one for each of the attached dwellings to be constructed) state that the development was to be "carried out by: James Moline". 85 The Construction Certificate states the applicant to be "Mr James Moline"; the owners as being "Mr James Moline, Mr A and R Tomkinson"; "The builder or owner/builder" as "James Moline, Licence Number 148801C"; and the tendering and pre-contract information and specification for the development to be "for Alan Tomkinson, Ruby Tomkinson and James Moline". 86 All of these official documents identify Mr Moline as a person with responsibility for the carrying out of the development and to be in a position of control and having ability to direct the carrying out of works on the site. 87 On 28 October 2005, during an inspection by Ms Amy Young of the Council of the site, Mr Dean Tomkinson stated, in respect to a question of whether he had a copy of the development consent on site, "No but my builder/architect does". Mr Dean Tomkinson then made a telephone call to Mr James Moline who was identified as the builder/architect to which Mr Dean Tomkinson was referring. Mr James Moline subsequently came to the site. Mr James Moline's statements to Ms Young were consistent with his being the builder/architect. 88 On 24 November 2005, during the conversation Mr Alan Tomkinson had with Mr Huynh, Mr Alan Tomkinson identified Mr James Moline as "Technically, James Moline is the official builder". Mr Moline submits that the use of the word "technically" shows that Mr Moline was not "actually" the builder. However, Mr Moline remained the builder, with the requisite authority and licences. The fact that he might have been sidelined by the involvement of others, such as Mr Alan Tomkinson, Mr Dean Tomkinson, Mr Owen Haviland and Mr J Harrison, does not remove the responsibility Mr Moline had as builder. 89 Mr Moline was involved in the proposal to enlarge the car park by extending it towards the northern boundary. He prepared the first s 96 application. This was lodged with the Council on 3 November 2005, two days after the consent was issued on 1 November 2005. Mr Moline not only prepared the plan showing the outer face of the basement car park wall being "2050mm" from the northern boundary, he also prepared the statement that accompanied the s 96 application. The modified development involved additional excavation beyond that which was necessary in order to construct the development as approved. In particular it involved excavation to at least 2050 millimetres from the northern boundary. The enlarged area of excavation was observed by Council officers on 24 November 2005. The excavation had proceeded up to approximately two metres from the northern boundary by this time. Excavation to that extent was also evident on the site inspection of Council officers on 20 December 2005. 90 On 1 December 2005, Mr Moline had written to the Council stating: "We advise that in accordance with your suggestion, we have stopped any further excavation to the western section of the basement, so that it will not be considered to be an over excavation when the variation is approved". 91 This statement shows Mr Moline's knowledge of the over-excavation and furthermore his ability to control the carrying out of further excavation. 92 The excavation that had been carried out was consistent with the s 96 application which Mr Moline had prepared and lodged with the Council. 93 That is also evident from Mr Moline's statement that I have just referred to that the excavation will not be considered an over-excavation when the variation under the s 96 application is approved. A similar comment was made by Mr Harrison in his letter of 16 February 2006 which I have earlier quoted in my reasons in relation to Mr Alan Tomkinson's no case to answer submission. 94 The carrying out of the excavation was not consistent with the approved plans for the reasons I have earlier given in relation to Mr Alan Tomkinson's no case to answer submission. 95 Accordingly, the evidence if accepted would establish that Mr Moline was involved with the proposal in the first s 96 application, which proposal was not in accordance with the approved development plan. The fact that the over-excavation was subsequently used to construct buildings and structures different from those shown in the first s 96 application (which building works and structures were also not in accordance with the approved plans) does not detract from the propositions that the excavation was not in accordance with the approved plans and Mr Moline was involved in proposing that departure. 96 Mr Moline's actions subsequent to the excavation and building works being carried out, to try and prevent further s 96 applications being made without his consent and to withdraw from the project established that Mr Moline had been involved, prior to those actions, in an active way. 97 Having regard to Mr Moline's positions as owner, architect, applicant for development consent and applicant for s 96 modification, builder, holder of various insurance certificates and policies and his active involvement in the development, Mr Moline can be said to be a person carrying out the development on the land. The evidence if accepted would be sufficient to establish direct involvement and would also be sufficient to establish vicarious liability. Mr Moline had sufficient control and direction over the persons who physically excavated the land, poured the slab and built the walls and structures so as to be made vicariously liable for their actions, even if he did not personally and expressly direct them to do the work. 98 I am satisfied that there is evidence in relation to Mr Moline being a person who carried out development not in accordance with the approved plans in breach of s 76A(1) and s 125(1) of the Act. 99 I therefore do not uphold Mr Moline's no case to answer submission. 100 I also do not consider the evidence of the prosecution to be so unsatisfactory that it would be unsafe to convict upon it. Accordingly, I also decline to exercise any discretion to stop the trial and direct a verdict of not guilty. 101 For these reasons, the three applications by Mr Moline are also refused. ********** 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.