Land and Environment Court New South Wales Medium Neutral Citation: North Sydney Council v Perini [2012] NSWLEC 239 Hearing dates: 22/10/12 Decision date: 22 October 2012 Jurisdiction: Class 5 Before: Pepper J Decision: Leave to re-open to adduce fresh evidence granted. Catchwords: PRACTICE AND PROCEDURE - application to re-open to adduce further evidence - application made after judgment reserved but before judgment handed down - principles to apply - leave granted. Legislation Cited: Environmental Planning and Assessment Act 1979 ss 76A(1)(b), 96, 125(1) Cases Cited: Belford and Bound v R [2011] QCA 43; (2011) 208 A Crim R 256 Burrell v The Queen [2008] HCA 34; (2008) 238 CLR 218 D'Orta-Ekenaike v Victoria Legal Aid [2005] HCA 12; (2005) 223 CLR 1 Dyett v Jorgensen [1995] 2 Qd R 1 Kennedy v Stockland Developments Pty Ltd (No 6) [2012] NSWLEC 34 Mahmood v State of Western Australia [2008] HCA 1; (2008) 232 CLR 397 Mahmood v State of Western Australia [2007] WASCA 101 Perini v North Sydney Council [2010] NSWLEC 1325 Wollondilly Shire Council v Foxman Environmental Development Services Pty Ltd (No 4) [2011] NSWLEC 35 Category: Procedural and other rulings Parties: North Sydney Council (Prosecutor) Peter Perini (Defendant) Representation: Mr I Hemmings (Prosecutor) Mr C Gough (solicitor) (Defendant) HWL Ebsworth Lawyers (Prosecutor) Storey & Gough Lawyers (Defendant) File Number(s): 50043 of 2010 Ex TEMPORE Judgment Mr Perini Applies to Re-open His Case to Adduce Fresh Evidence 1Mr Peter Perini has pleaded guilty to a charge under ss 76A(1)(b) and 125(1) of the Environmental Planning and Assessment Act 1979 ("the EPAA") brought by North Sydney Council ("the council") that he carried out development on land otherwise than in accordance with a development consent and contrary to the provisions of the North Sydney Local Environmental Plan 2001. 2The sentence hearing in this matter took place on 17, 18 and 19 August and 24 October 2011 and judgment is currently reserved. 3By notice of motion filed 5 September 2012, Mr Perini now seeks leave to re-open his case to rely upon fresh evidence. In support of his application he relies upon the affidavit of Belinda Gough sworn 10 September 2012. 4The application is neither opposed nor consented to by the council, although, from the bar table the council stated that if the application were successful, it would seek to file further submissions in reply in respect of the significance of the fresh evidence. Specifically, these submissions relate to Mr Perini's state of mind at the time of the commission of the offence and the genuineness of any stated purported demonstration of remorse by Mr Perini. This, of course, would necessitate submissions in reply by Mr Perini. Factual Background 5The land in question comprises Lot 2 in DP 619776, known as 29A Shellcove Road, Neutral Bay ("the premises"). Mr Perini is also the owner of 27 - 29 Shellcove Road. 6On 8 November 2007 the council granted development consent 106/07 for the premises, subject to conditions ("the consent"). The consent was for the demolition of an existing inground swimming pool, existing sandstone walls and stairs, site excavation, the construction of a new three storey dwelling house with a detached double carport, landscaping works, and boundary adjustment to 27 - 29 Shellcove Road. 7In August 2009 the council received a complaint that the development was not being carried out in accordance with the approved plans. Development was being carried out in accordance with a set of "working plans" which were not the same as the approved plans. The approved plans had been varied in two stages: initially by a construction certificate issued by Fitzgerald Building Certifiers Pty Ltd ("Fitzgerald") on 10 March 2008 and again by Fitzgerald as authorised and approved by Mr Perini. This included a number of additional unapproved external and internal works including, relevantly, the construction of a swimming pool in the courtyard area adjacent to the carport, and the addition of a pool equipment room at the southern end of the carport. 8On 16 November 2009 Mr Perini lodged a s 96 modification application to amend the consent to obtain retrospective approval for the working plans. An appeal was lodged to the Court on 19 February 2010 following the council's deemed refusal of the application (proceedings no. 10110 of 2010). 9On 25 November 2010 Tuor C delivered judgment in the appeal proceedings, upholding the appeal in part (Perini v North Sydney Council [2010] NSWLEC 1325). The s 96 application was approved, subject to modifications as set out in annexure 'A' to her judgment. 10In relation to the pool area, the orders required: Increase to landscaped areas C27. The unauthorised pool and pool equipment room shall be demolished and be replaced with soft landscaping. The unauthorised paving of the driveway in front of the dwelling shall be removed and be replaced with soft landscaping. The paving on the driveway shall be sufficient only to provide vehicle access to the carport and allow for a single turning bay to permit vehicles to leave the property in a forward direction. The driveway paving shall be no closer than 6.5m from the western elevation of the dwelling. Details showing compliance with these requirements shall be included in the plan submitted to the Certifying Authority for approval with the Construction Certificate. (Reason: To provide for increased soft landscaping to meet the objectives of the planning controls relating to landscaped areas) 11The council then issued a Notice of Intention to Issue an Order on 4 July 2011 for Mr Perini to demolish the pool and pool equipment room. 12A building certificate application was lodged on 1 August 2011, seeking approval for the unauthorised swimming pool and a portion of the existing collar above the approved garage. 13At the sentence hearing the council alleged that no steps had been taken to comply with the orders of Tuor C requiring a reduction in the height of the garage and the removal of the pool, the pool equipment room and additional hard stand area. The Fresh Evidence 14The evidence that Mr Perini now seeks to put before the Court is a building certificate issued by the council that certifies the construction of the swimming pool and collar at issue in the proceedings. 15The evidence arises in the following way. On 26 May 2011, Mr Perini lodged a development application with the council and, on the same day, lodged a building certificate application. 16On 16 November 2011 Mr Perini instituted Class 1 proceedings seeking that the council's refusal of his application for a building certificate for the swimming pool structure and collar be set aside. On the same day Mr Perini commenced separate Class 1 proceedings seeking orders that the development application to use the swimming pool and collar above the garage be approved. 17On 10 August 2012, pursuant to a successful s 34 conciliation, Tuor C approved the development application the subject of the latter Class 1 proceedings. 18Relevantly, the s 34 agreement included a landscape plan which depicted the demolition of an existing approved cabana structure and the reinstatement of lawn. In addition, the pool equipment room was to be demolished and consequential landscaping carried out. 19Accordingly, as a result of the s 34 agreement there has been a positive landscaping gain to the development. 20On 29 August 2012 the Commissioner directed the council to issue the building certificate the subject of the former Class 1 proceedings. It is this building certificate that is the subject of the present leave application. 21Mr Perini submits that the building certificate relevantly demonstrates that the environmental harm caused by the commission of the offence in respect of the swimming pool and collar is not as great as initially contended by the council because of the improved landscaping position. 22It was on this limited basis that the evidence was sought to be adduced. It was not being tendered to demonstrate that Mr Perini had a different state of mind at the time of the commission of the offence or that any harm to the planning system caused by the commission of the offence by him had been subsequently mitigated. Legal Principles Applicable to an Application For Leave to Re-open Criminal Proceedings to Adduce Fresh Evidence 23The applicable legal principles in respect of an application to re-open a party's case to adduce additional evidence in civil proceedings have been stated many times by the Court (see, for example, Wollondilly Shire Council v Foxman Environmental Development Services Pty Ltd (No 4) [2011] NSWLEC 35 and Kennedy v Stockland Developments Pty Ltd (No 6) [2012] NSWLEC 34). 24However, as Mr Perini correctly noted, these are not Class 4 proceedings, they are Class 5 proceedings, which are criminal in nature. Different considerations therefore apply. 25Regrettably, Storey & Gough, Mr Perini's solicitors, were not able to assist the Court by indicating what these additional considerations were. The Court was therefore left to research this matter, at short notice, by itself. 26Curiously, there is very little case law on the subject. Most decisions are concerned with the issue of when it is appropriate to grant leave to re-open to adduce fresh evidence on appeal. That is to say, typically after judgment has been given and the orders made at first instance have been perfected. That is not this case. 27In the present case, judgment remains reserved and thus many of the admonishments and cautionary epithets in respect of the granting of leave to adduce fresh evidence on appeal do not apply. The importance of the principle of finality of litigation is also considerably more muted in this instance (Burrell v The Queen [2008] HCA 34; (2008) 238 CLR 218 at [15] and D'Orta-Ekenaike v Victoria Legal Aid [2005] HCA 12; (2005) 223 CLR 1 at [34]). 28Mahmood v State of Western Australia [2008] HCA 1; (2008) 232 CLR 397 concerned an application during the course of a murder trial by the defence to re-open its case to tender the entirety of a video recording that had been only tendered in part by it. The application was warranted, the defence submitted, because it demonstrated that the defendant had been emotional during a re-enactment, whereas the prosecution had asked the jury to draw an inference about his lack of emotion during the re-enactment. The trial judge refused the application. 29This decision was upheld on appeal, the Court of Appeal answering the "central question" of "whether the proposed evidence was sufficiently material to warrant re-opening" (Mahmood v State of Western Australia [2007] WASCA 101 at [156]) in the negative. Earlier in the judgment, the Court of Appeal had stated the test as "whether the interests of justice and fairness to the accused require the re-opening of the defence case. ...The assessment will be affected by the issues in the case and the substance of the proposed evidence" (at [152] and the authorities applied thereat). 30In allowing the appeal, the High Court did not formulate the test to be applied in such applications but remarked that (at [15]): Courts are generally inclined to allow a re-opening to call evidence considered to be of sufficient importance, even after addresses. 31In doing so the Court cited the judgment of Pincus JA in Dyett v Jorgensen [1995] 2 Qd R 1, where his Honour said (at 5): As has been pointed out, there was no suggestion that the course proposed would involve any substantial inconvenience or expense and the additional evidence appeared to be both brief and material. Where it does not appear that there has been any conscious decision to omit the additional evidence sought to be called, nor that there is any practical obstacle in the way of allowing the re-opening, I think a court would often incline towards allowing the defence a re-opening to call sufficiently important evidence even after addresses, in a criminal case. 32Both Mahmood (in the High Court) and Dyett were recently endorsed and applied in Belford and Bound v R [2011] QCA 43; (2011) 208 A Crim R 256 (at [125]). 33Distilling the applicable principles: (a) the touchstone for granting leave to re-open is whether it is in the interests of justice and fairness to the accused to permit the re-opening; (b) if the evidence is of sufficient importance a court should be generally inclined to permit the re-opening; (c) this is particularly so where the evidence is brief and material; (d) if the re-opening will involve substantial inconvenience or expense this will militate against leave being granted; (e) likewise, if there was a conscious decision to omit the evidence during the proceedings a court will be disinclined to grant leave; and (f) if there is any practical obstacle to the admission of the fresh evidence, such as, for example, the unavailability of a witness to rebut the evidence, or if prejudice is likely to be caused to a party by the admission of the evidence, this may militate against leave being granted. 34Although these principles have been stated in the context of a defended hearing on criminal liability, they are, in my opinion, nevertheless apposite to a sentence hearing. 35Plainly enough, in this case the evidence was not available to be adduced at the time of the sentence hearing. This is not necessarily fatal, however, to the present application given the purpose for which the evidence is sought to be adduced. That is to say, it is not uncommon in this Court to permit evidence of a subsequent approval by a consent authority as a matter to be relied upon in mitigation in a sentence hearing, relevant, as it is, to the issue of the harm caused to the environment by the commission of the offence. 36In the present case, I have concluded that, on balance, leave to re-open ought to be granted to adduce evidence of the building certificate. While I entertain residual doubt as to its ultimate materiality given its futurity, if it is to be employed in the manner submitted by Mr Perini then it may be of relevance, and out of abundant caution having regard to the interests of justice and fairness to Mr Perini, he should be afforded the opportunity to adduce the evidence. I am also mindful of the fact that the fresh evidence is brief and will not, other than the provision of some short additional written submissions by the parties, involve any substantial inconvenience or raise any practical obstacle by reason of its admission. Orders 37The orders of the Court are therefore: (1) the defendant is granted leave to re-open his case to admit the building certificate issued by the council; (2) within 14 days the prosecutor is to file and serve short written submissions on the significance of this evidence on the issues for determination in the proceedings (no more than five single sided double spaced pages); and (3) within 14 days the defendant is to file short written submissions on the significance of this evidence on the issues for determination in the proceedings and in reply to the prosecutor's submissions (no more than five single sided double spaced pages). ********** 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. Decision last updated: 24 October 2012