Erector Group Pty Ltd v Burwood Council; Liverpool Developing Pty Ltd v Burwood Council [2018] NSWCCA 56

Erector Group Pty Ltd v Burwood Council; Liverpool Developing Pty Ltd v Burwood Council [2018] NSWCCA 56

There was insufficient evidence to establish beyond reasonable doubt that the failures to appoint a principal certifying authority or obtain a construction certificate (the offences) caused the collapse and damage to adjoining buildings; accordingly, the damage could not be treated as an aggravating factor. The sentencing judge erred in finding the causal connection and in imposing higher penalties on that basis.

Parties
First Appellant: Erector Group Pty Ltd; Second Appellant: Liverpool Developing Pty Ltd; Respondent: Burwood Council
Jurisdiction
Australia
Judgment Date
06 April 2018
Procedural Posture
Criminal Appeal / Appeal From Sentence
Outcome
Appeal allowed
Legal Topics
Sentencing, Development Consent Breaches, Construction Certification, Causation of Harm, General Deterrence, Totality Principle
Environmental Law Criminal Law Planning Law Sentencing Development Consent Breaches Construction Certification Causation of Harm General Deterrence +1 more

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Parties

Erector Group Pty Ltd

First Appellant

Liverpool Developing Pty Ltd

Second Appellant

Burwood Council

Respondent

Procedural Posture

Criminal Appeal / Appeal From Sentence

Legal Issues

  1. 1 Whether damage to adjoining buildings was caused by the commission of the offences and was an aggravating factor under s 21A(2)(g) of the Crimes (Sentencing Procedure) Act 1999 (NSW)
  2. 2 Whether by taking into account the damage caused the sentencing judge punished the appellants for an offence with which they were not charged
  3. 3 Whether the sentence imposed was manifestly excessive

Ratio Decidendi

There was insufficient evidence to establish beyond reasonable doubt that the failures to appoint a principal certifying authority or obtain a construction certificate (the offences) caused the collapse and damage to adjoining buildings; accordingly, the damage could not be treated as an aggravating factor. The sentencing judge erred in finding the causal connection and in imposing higher penalties on that basis.

Court Disposition

Appeal allowed

Orders

  • Orders of the primary judge set aside except as to costs of the proceeding below.
  • In proceeding 2016/175841: Liverpool Developing Pty Ltd convicted; fined $20,000.