Court Affirms Large Penalty For Illegal Building Works and Defiance Of Stop Work Order

The Land and Environment Court has upheld substantial fines of $95,000 that were imposed against a family trust company in the Burwood Local Court. The fines that were levied consisted of two elements - $35,000 for carrying out building works without the benefit of either a development consent or a complying development certificate, and $60,000 for repeatedly disobeying a "Stop Work" Order that was issued by the Council. The outcome in this case, Alarmon Pty Limited v City of Ryde Council, (2014)             NSWLEC 100, provides a cautionary lesson that people who choose to disregard compliance orders issued by local government authorities do so at their peril, and run the risk of very significant sanctions.

The circumstances of the case were that the family trust company owned a residential property that was occupied by the director of the company and his family. In late 2012 and early 2013, major renovation works were carried out without the benefit of development approval from the Council, including demolition of the rear of the house, an attached covered area, an outbuilding and a detached garage, extension of the rear of the house for living and dining areas, and construction of a new addition which included a rumpus room and three bedrooms at the first floor level.  The unauthorised building work attracted complaint to the council by local residents, who described them as an "eyesore" and a "monstrousity".  The Council issued an order in response to the complaints which required the defendant company to immediately cease all building works. Nonetheless, on several occasions after the Stop Work order was issued, observations were made that the building works were continuing. 

The explanation given by the director of the defendant company for continuing building works in disregard of the order was that he felt that it was necessary to carry out the works to protect the house from exposure to the elements and against the risk of theft. 

In his judgement affirming the sentence of the Local Court, Justice Sheehan stated that he agreed with the local court magistrate's conclusion that the defendant's behaviour in disregarding the Stop Work order for a period of 6 weeks amounted to a "deliberate disregard of the law".  Justice Sheehan found that the case called both for "general deterrence" and "serious punishment" and noted that he would have been inclined to impose even more substantial penalties had they been sought by the prosecuting council.

The result in this case shows that defendants who are prosecuted for breaches of the Environmental Planning and Assessment Act in the Local Court rather than in the Land and Environment Court may nevertheless receive substantial penalties. Where the circumstances of the case are sufficiently serious, as they were in this case, an appeal to the LEC against the severity of sentence may very well not be successful. A severity appeal to the LEC may thus compound the overall financial sanction that a defendant may suffer, as an unsuccessful defendant is virtually certain to pay the Council's additional legal costs associated with the appeal.