Willoughby City Council v Finlay (No.2) [2010] NSWLEC 233

Willoughby City Council v Finlay (No.2) [2010] NSWLEC 233

The defendant was not the site manager or construction supervisor and there was no evidence she actually instructed the builder to carry out all the unauthorised demolition, but she acted in crucial respects as project manager and contract administrator, allowed work to commence knowing Council approval was insufficient, failed to explain the legal position to the builder, certifier or Council, and was at least negligent and probably reckless in her professional duties. Her conduct established sufficient culpability for the offence, warranted conviction, and justified a fine equivalent to that imposed on the builder's company, with costs.

Jurisdiction
Australia
Judgment Date
12 November 2010
Procedural Posture
Prosecution for Development Without Consent / Sentence Following Plea of Guilty
Outcome
Defendant convicted of the offence charged in the amended summons, fined $30,000, and ordered to pay the prosecutor's costs as agreed or assessed.
Legal Topics
['development Without Consent' 'demolition in a Heritage Conservation Area' 'project Designer Liability' 'plea of Guilty' 'conviction' 'costs']
['environmental and Planning Law' 'criminal Sentencing'] ['development Without Consent' 'demolition in a Heritage Conservation Area' 'project Designer Liability' 'plea of Guilty' 'conviction' 'costs']

Case Brief

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Procedural Posture

Prosecution for Development Without Consent / Sentence Following Plea of Guilty

Legal Issues

  1. 1 ['Whether the defendant, as building and interior designer/project manager, carried out development without the required development consent by exercising authority to have excessive demolition performed.' "Whether preparation of plans and the defendant's conduct had a sufficient causal connection with the unauthorised demolition works." 'Whether the Court should make an order under s 10 or s 10A of the Crimes (Sentencing Procedure) Act 1999 instead of recording a conviction.' 'What sentence and costs orders were appropriate in light of the guilty plea, absence of actual environmental harm, remorse, and need for compliance with the planning regime.']

Ratio Decidendi

The defendant was not the site manager or construction supervisor and there was no evidence she actually instructed the builder to carry out all the unauthorised demolition, but she acted in crucial respects as project manager and contract administrator, allowed work to commence knowing Council approval was insufficient, failed to explain the legal position to the builder, certifier or Council, and was at least negligent and probably reckless in her professional duties. Her conduct established sufficient culpability for the offence, warranted conviction, and justified a fine equivalent to that imposed on the builder's company, with costs.

Court Disposition

Defendant convicted of the offence charged in the amended summons, fined $30,000, and ordered to pay the prosecutor's costs as agreed or assessed.

Orders

  • ['The defendant is convicted of the offence charged in the amended summons.' 'The defendant is to pay a fine of $30,000.' "The defendant is to pay the prosecutor's costs, as agreed or as assessed according to law." 'The exhibits may be returned, except Exhibit W1.']