A building company that is engaged in high-end residential construction has been fined $40,000 by the Land and Environment Court for re-constructing a staircase leading down a cliff-face to the foreshore of Little Manly Cove without having required development consent. The foreshore area that was affected by the illegal building works provides critical habitat for Little Penguins, which are listed as endangered under the NSW Threatened Species Conservation Act. It is thus one of the most unique and valuable natural resources in the entire Sydney metropolitan region.
The circumstances surrounding the offence were that a development consent was granted by the prosecuting council (Manly Council) authorising the construction of a new two-storey house on a waterfront property overlooking Little Manly Cove. The consent included conditions relating to the protection of the Little Penguin habitat at the Cove, including a requirement that no works of any kind were to occur below the top of the cliff-face above the cove without an appropriate approval from the Department of Environment, Climate Change and Water. Prior to the commencement of construction, an existing stairway was in place that led from the property down to the foreshore area. The building company's site supervisor observed that this staircase was not then in good condition.
After building works had begun on the property, the building company was instructed by "the owners" of the site to replace the existing stairway during a regular on site meeting. The Court's decision recites that evidence was given that the project architect made statements to employees of the building company at this meeting to the effect that he would arrange to obtain the necessary approvals for the new stairway from the Council. The building company took the view at the time that it was not unusual for minor building works such as the repair or replacement of an existing structure not to require consent. It relied on the architect's representations that he would get the matter of securing necessary approvals "sorted with the Council" and it therefore did not make any independent enquiry with the Council as to whether consent had actually been granted before proceeding with the construction of the stairway. The construction works involved some removal of vegetation.
The Court (per Justice Sheehan) concluded that although the illegal building works had not resulted in any known harm to the Little Penguins living in Little Manly Cove, the offence committed by the builder was nonetheless of "moderate" objective seriousness. His Honour therefore determined that the offence warranted a penalty of $60,000, which was ultimately reduced by one-third, to a final penalty of $40,000, to take into account subjective factors relating to the defendant (including its lack of prior offences and good corporate character).
The outcome of this case re-emphasises the principle that persons who are engaged in construction works must be scrupulous to make their own independent confirmation that a required development consent has been obtained before going forward with work, and that they should not make assumptions that seemingly "minor works" do not require consent. This is especially true in circumstances where the building works will take place in an environmentally sensitive area. Failure to exercise caution in these respects can lead to significant penalties as well as a substantial costs order associated with a prosecution, and of course "reputational damage". Indeed, an opinion could be fairly entertained that in the circumstances of this case the builder was fined "lightly", due to the sensitivity of the environment that was impacted by the illegal works and in view of the fact that the maximum available penalty for the offence under the Environmental Planning and Assessment Act was $1.1 million (thus the penalty was less than 5% of the statutory maximum).
The Court's decision in this case, Manly Council v Horizon Habitats Pty Limited (2015) NSWLEC 15 (handed down on 12 February 2015) indicates that the Council has also instituted prosecutions against the one of the property owners and the architect are still pending before the Court, so more chapters of this story are yet to unfold.
The Court's judgement can be found at the following link:
http://www.caselaw.nsw.gov.au/decision/54da7abde4b0aedbe9572e90
