It is a far worse outcome for a builder to be prosecuted in the Land and Environment Court than it is to risk losing a contract.
That moral has been reinforced by a recent decision that was handed down by Justice Pepper on 9 March 2015, in the case of Willoughby City Council v Livbuild Pty Ltd (2015) NSWLEC 34, http://www.caselaw.nsw.gov.au/decision/54fcee9ee4b0bcd7fe7b831a.
In this prosecution, a builder has been fined a total of $67,000, and ordered to pay the Council's costs (estimated to amount to an additional $64,000) for doing unapproved work on a property located on the foreshore of Sailors Bay in Northbridge. The illegal construction consisted of two primary elements: external works involving alteration of the land form and the building staircases, concrete terraces and retaining walls, and internal works involving, among other things, building a home theatre, a powder room and a pantry and store room in an area that had been designated as a "subfloor space" in the approved architectural plans.
The story of the case is a classic example of "doing the wrong thing when one knows better", and the builder who was prosecuted wound up paying a heavy price for his indiscretion. The builder was asked to carry out the unapproved works by the property owner, and agreed to do so even though he was aware that development consent was required for the works but had not been obtained. It is recorded in Justice Pepper's judgement that the builder's reasoning was that he was interested in expanding his company's portfolio into the sphere of high-end home building, and that he was concerned that his company would lose the contract for other works on the property if he declined to do the unauthorised work.
While Justice Pepper's jdugement in the case does make reference to "actual" environmental harm that resulted from the external works in the foreshore area of the property (involving the removal of vegetation, the introduction of large quantities of fill and the increase in areas of hard paving), a major focus of Her Honour's analysis of the issue of harm relates to the harm to the regulatory framework of the Environmental Planning and Assessment Act that was occasioned by the carrying out of the works without prior development approval.
It is of interest and significance that Justice Pepper declared in the judgement that the harm to the regulatory regime "crystallised the moment the works were undertaken absent development approval". Her Honour was quite specific in stating that the fact that development and building certificate applications had been lodged with the prosecuting Council in an effort to regularise the illegal works did not, in her view, diminish the illegal character of the works, nor did the lodging of these applications carry much weight toward mitigating the final penalty.
The moral here, then, is that it is unwise to "act against the better angels of one's nature". When a person is aware that development consent is required for certain proposed building works, it is, in our opinion, an extremely poor choice to proceed with the works in the face of knowledge that development consent has not been obtained. Indeed, as illustrated by the Court's judgement in the case of Ford v Hawkesbury City Council (recently reviewed in this blog) it is a mistake for any contractor not to make independent inquiries to ensure that necessary development approval has been obtained and to rely on representations of the property owner or other person engaging them that consent has been or "will be" obtained.
In short, it is always absolutely essential to confirm that a required development approval has been secured before going forward with regulated works. Failure to exercise diligence and caution can carry extremely unfavourable consequences, in the form of an indelible criminal record and expensive fines and costs orders.
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