Owner-Builder Winds Up In Hot Water For Carrying Out Unauthorised Building Works

The owner/builder of a house in Croydon Park has been fined nearly $10,000 and ordered to pay the Council's prosecution costs for failing to comply with the requirements of a development consent issued by Burwood Council. The judgment of Chief Justice Preston of the Land and Environment Court imposing sentence, Burwood Council v Pratelli (2014) NSWLEC 28, can be found at the following link:

http://www.caselaw.nsw.gov.au/action/pjudg?jgmtid=170522

The charges against the defendant alleged that she had not complied with two conditions of the development consent that had been granted to her by the Council, namely that she build the house in accordance with the plans that had been approved by the Council, and that she had failed to arrange for the building works to be inspected by an accredited private certifier at critical stages of the construction works.

The Council's main concern was that the defendant had carried out unapproved works to the "subfloor area". The Council's inspections revealed numerous aspects of non-compliance, including that the subfloor area had been excavated to a greater depth than allowed, thereby increasing the ceiling height of this part of the house; that windows had been installed to the subfloor space; that partitions had been constructed in the subfloor area, creating two rooms; and that access to the subfloor space had been created by the relocation of an internal staircase and by increasing the height of a door on an external wall of the house. 

Following the Council's discovery of the breaches of the development consent, the defendant undertook remedial measures, which included bricking up the windows that had been installed in the wall of the subfloor area and removing doors that provided access to the area. 

The factors taken into account by the Chief Justice in imposing sentence included the need to publicly denounce the defendant's conduct, to hold her accountable for her actions and to deter others from carrying out building works otherwise than in accordance with the requirements of a consent. In mitigation of the penalty, the Court found that the defendant was contrite and remorseful and thus unlikely to re-offend, that she had taken steps to rectify the unlawful works, and that she had agreed to pay the prosecutor's costs.

In passing judgment on the matter, Chief Justice Preston found that the circumstances of the case warranted a penalty of $13,000, which was reduced by 25%, to $9,750, to take account of the defendant's plea of guilty.

It is worthy of note that the judgment on sentence does not include any discussion concerning how the failure of the defendant to arrange for critical stage inspections was accounted for in the penalty, if at all. 

The decision offers a cautionary tale to owner/builders, namely that seemingly small-scale breaches of the provisions of a development approval can attract substantial fines and requirements to pay Council's legal costs, even in instances where the owner/builder has accepted responsibility for the offence and has undertaken remedial actions.