CITY OF SALISBURY v ROCCA & ORS [2009] SAERDC 94 (22 December 2009)

Last Updated: 23 December 2009

ENVIRONMENT, RESOURCES AND DEVELOPMENT COURT OF SOUTH AUSTRALIA

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CITY OF SALISBURY v ROCCA & ORS

[2009] SAERDC 94

Reasons for Sentence of Her Honour Judge Trenorden

22 December 2009

ENVIRONMENT AND PLANNING - BUILDING CONTROL - OTHER MATTERS - OFFENCES AND PENALTIES

Pleas of guilty by first and third defendants - Whether appropriate to impose penalty without conviction.

HELD: First and third defendants convicted and fined.

Environment, Resources and Development Court Act 1993; Development Act 1993; Criminal Law (Sentencing) Act 1988, referred to.

Zefi v Police [2003] SASC 218; Leonello v Police [2005] SASC 29; Piva v Brinkworth (1992) 59 SASR 92, considered.

CITY OF SALISBURY v ROCCA & ORS
[2009] SAERDC 94

THE COURT DELIVERED THE FOLLOWING REASONS FOR SENTENCE:

1. A large building comprising a warehouse and office was constructed on land at 35-37 Maxwell Rd Pooraka (the site), without development authorisation first having been obtained. The first and third defendants have each pleaded guilty to an offence contrary to s44(1) of the Development Act 1993, in that between 17 March 2008 and 13 November 2008, they undertook development at the site, which was not an approved development.
2. The chronology of relevant events is as follows:

19/10/07	Stafford Architects Pty Ltd, on behalf of the owners of the site, applied to the City of Salisbury (the Council) for development plan consent for the construction of the proposed warehouse and office building (the project)
29/11/07	Ahrens Group Pty Ltd, builders, submitted to the first defendant a revised quotation for the project in which the following were among the terms and conditions: • no work will commence until written confirmation is received by Ahrens; and • the practical completion date will only be guaranteed providing the council approvals are obtained as set out in the construction program
17/03/08	Development plan consent was granted for the project
late 07/08	Construction work commenced
late 09/08	The third defendant poured the slab for the project
22/10/08	The architects informed the first and third defendant that development authorisation had not been issued in respect of the project by the Council
1/11/08	The warehouse and office building were being occupied
10/11/08	Building rules consent was granted for the project by private certification
13/11/08	The project building was substantially completed
17/12/08	The first defendant tendered an apology to the Council and acknowledged ultimate responsibility
03/04/09	Development authorisation was granted
22/09/09	The complaint was issued in relation to three defendants

3. Stafford Architects Pty Ltd (Stafford) was engaged by the first defendant as the architects for the project. Stafford was responsible for obtaining development plan and building rules consent for the project, except that TNK Engineering was to provide engineering designs and obtain building rules consent for the designs.
4. It was submitted that the owners engaged Stafford to draw plans and to obtain the necessary development approval. However, an owner cannot abdicate all responsibility to another person. The Development Act provides in s32, that “no development may be undertaken unless the development is an approved development”. The meaning of “development” in s4 of the Act includes both building work and a change in the use of land, and “to undertake development” means “to commence or proceed with development or to cause, suffer or permit development to be commenced or to proceed.”
5. The first defendant is a director of two of the four companies which are the registered proprietors (the owners) of the site. He negotiated and executed an agreement with the second defendant for the design and construction of the warehouse and office building on the site, in accordance with his appointment to do so by the owners of the site.
6. The third defendant, who is the father of the first defendant and a licensed builder, being a partner in the partnership of F & E Rocca, licensed builders, was engaged by the owners to carry out civil works including bench levels, the construction of a concrete slab for the building and construction of a bitumen car park.
7. It is quite clear from these provisions of the Development Act that an owner has a responsibility not to allow building works to commence unless the development has been approved by the relevant planning authority under the Development Act. The land owner, the developer and anyone engaging in building work on land may be undertaking development unlawfully if development approval has not first been obtained for building works. All have a responsibility to check that development approval has been obtained before building work is commenced. This is confirmed by the offence provision, namely s44(1) under which the defendants have been charged.
8. The offence to which each of the first and third defendants have pleaded guilty is of the kind known as a regulatory offence. In determining an appropriate sentence for offending of this nature, the Courts have emphasised the importance of the element of general deterrence, a matter to which the Criminal Law (Sentencing) Act 1988 requires that I have regard: s10(1).
9. The first defendant asked the Court to take into account that he relied on a provision in the revised quotation for the development, provided by Ahrens Group Pty Ltd that “no work will commence until written confirmation is received by Ahrens” as meaning that no work would commence until the relevant development approval had been obtained. I cannot take the assertion into account. The statement quoted is set out under the heading “Terms and Conditions” in what is clearly a revised quotation for the project. It is a standard type of statement in a quotation, indicating no more than that the company wanted written confirmation of acceptance of the quotation, before work would commence. The first defendant has undertaken other developments. I do not accept that he would have interpreted the statement in the quotation as is asserted.
10. It is clear to me that both the first and third defendants did not deliberately offend. Their error was to rely on Stafford having obtained development approval without checking whether approval had been obtained. The omission amounted to inadvertence, an oversight or carelessness, rather than a deliberate breach of the law.
11. I accept that both defendants were surprised, angry, dismayed and embarrassed, when told by the architects on 22 October 2008 that the development had been constructed without development approval.
12. I note that the development has now been completed in accordance with the development approval, with the exception of the landscaping, which is not able to be completed for reasons that are understood by the complainant and which I do not need to go into here. In effect, the situation has been regularised.
13. I note that the warehouse and office building were tenanted from 1 November 2008. However, the owners decided, in view of the offending, not to accept any rent from the tenants until development approval was obtained. Rent has been received by the owners (the four companies) in the amount of $25,000 per month since the date of the grant of development approval, namely 3 April 2009. As the complainant pointed out, the owners have had the benefit of rent from the date of development approval, which is much earlier than would usually be the case. Development approval is usually the point at which construction commences; not the date upon which rent begins to be payable and is received. Thus, the owners (the four companies) received rent some eight months earlier than they would have otherwise, having regard to the time it took to construct and complete the building works. However, on the other hand I note the owners were probably also required to obtain and outlay finance earlier than they otherwise would have, for the building works.
14. The maximum penalty for an offence against s44(1) of the Development Act is and was at the relevant time, $120,000.

The First Defendant

15. I have taken into account all that has been put to me with respect to the background and history of the first defendant. I note that he has overcome early physical setbacks and is a successful businessman with an excellent character, with no previous convictions.
16. The first defendant is a representative of the owners, being a director of two of the four owner companies and having been given the responsibility to negotiate and execute an agreement with the second defendant for the design and construction of the warehouse and office building the cost of which was not insignificant, on the site.
17. He is an accountant with some history of involvement in developments and businesses. Given his past involvement in developments, I conclude that he must have been aware of the requirements of the Development Act with respect to undertaking development.
18. While I accept that he relied upon others, as a representative of the owners of the site he had a responsibility to check that development approval had been obtained, before allowing the development to proceed.
19. I agree that the offending is at the lower end of the scale. However, it is important that others in a similar position to the first defendant understand that the law must be upheld, so I am aware of the need, in determining sentence, to generally deter others from offending in similar circumstances.
20. I accept that the first defendant is very unlikely to offend against the Development Act again. He has learnt his lesson. I note particularly in this regard, that the first defendant tendered an apology in a letter to the complainant dated 17 December 2008. In that letter, the first defendant acknowledged ultimate responsibility for the breach of the Development Act. It is clear that the first defendant is contrite.
21. I consider that the offending warrants a penalty of in the order of 15% of the maximum. I would discount that by 25% for an indication of a plea of guilty at the first opportunity. That calculation results in a proposed penalty of $13,500. The first defendant will be convicted and fined in the sum of $13,500.

The Third Defendant

22. I note that the third defendant is the father of the first defendant and is aged 70 years. He has been a bricklayer for 50 years and for the past 40 years has held a builder’s licence. He has no convictions, and there was no suggestion that he has other than an excellent character.
23. The third defendant poured the slab and carried out other related works for the building works without checking whether development approval had been obtained.
24. I accept that the third defendant is unlikely to offend again and has been upset and embarrassed by the realisation of his offending. I am confident he will not offend again, particularly having regard to the fact that he wishes to retain his builder’s licence and is aware of the need to remain a fit and proper person if he is to retain the licence.
25. That brings me to the submission put on behalf of the third defendant, namely that he should be sentenced without conviction. This submission was put on the basis that the third defendant is afraid of losing his builder’s licence should a conviction be recorded. Section 16 of the Criminal Law (Sentencing) Act enables a court to impose a fine without conviction when a person is found guilty of an offence in circumstances where the defendant is unlikely to so offend again and that good reason exists for not recording a conviction having regard to:

(i) the character, antecedents, age or physical or mental condition of the defendant; or
(ii) the fact that the offence was trifling; or
(iii) any other extenuating circumstances.

26. As I have said, I am satisfied that the third defendant is unlikely to commit such an offence again. The offence is not trifling. In effect, I was asked to have regard to extenuating circumstances, namely the prospect that the third defendant would lose his builder’s licence if convicted.
27. It will not necessary follow that the third defendant will lose his builders licence, if convicted of this offence. It is a matter for the relevant authority. I must weigh the potential benefit to the third defendant of not recording a conviction with the public interest in convictions being recorded: Zefi v Police [2003] SASC 218. In addition, where a defendant seeks to have no conviction recorded because a conviction might disqualify him from obtaining or retaining a licence issued by a public authority, I must take into account the countervailing public interest of the licensing authority having knowledge of the offending: Leonello v Police [2005] SASC 29.
28. I must also bear in mind that the discretion to sentence without conviction should only be exercised sparingly in enforcing regulatory legislation because of the importance of the deterrent element: Piva v Brinkworth (1992) 59 SASR 92.
29. If a conviction is recorded against the third defendant, it would not automatically result in loss of his builder’s licence. On the other hand, the licensing authority is entitled to know that the third defendant undertook building work without sighting a development approval; that is, without ensuring that the law had been complied with. The licensing authority has to consider the public interest in determining whether licences should be granted or continue to be granted.
30. In all of the circumstances, I am not prepared to exercise the power available under s16 of the Criminal Law (Sentencing) Act, that is to impose a penalty without recording a conviction against the third defendant.
31. In considering the appropriate sentence, I am mindful of all that has been put to me on behalf of the third defendant. I have concluded that his offending was not at the same level as that of the first defendant, who was the representative of the land owners. However, there was and is a clear obligation on the part of the third defendant and persons in his position, not to proceed with building work without having obtained development approval, or having sighted a current development approval, for the building works.
32. In this case, the third defendant should have asked to see the development approval before he commenced to do the preparatory works for the pouring of the slab.
33. In all of the circumstances, I would impose a penalty in the order of 5% of the maximum, and discount that by 25% for the indication of a guilty plea at the first opportunity. That results in a proposed penalty of $4,500. I would convict the defendant and impose a fine upon him of $4,500.
34. I note that each of the defendants have agreed to pay the amount of $7,500 to the complainant by way of costs.

Sentence and Orders

The First Defendant

1. Is convicted and fined in the amount of $13,500.

2. Is ordered to pay the complainant’s costs in the amount of $7,500.

3. Is to pay a levy in the amount of $80 (Victims of Crime Levy).

The Third Defendant

1. Is convicted and fined in the amount of $4,500.

2. Is ordered to pay the complainant’s costs in the amount of $7,500.

3. Is to pay a levy in the amount of $80 (Victims of Crime Levy).