Prosecution for breach of Court Orders – City of Burnside v McKenzie [2019] SAERDC 41

The City of Burnside (Council) recently prosecuted a landowner in the Environment, Resources and Development Court (the Court), for breaches of section 55 of the Development Act 1993 (the Act). These breaches were in relation to a failure to substantially complete a development in Glenside and resulted in a $9,000 fine and a conviction being recorded (decision here).

The offences

The defendant, Mr McKenzie, obtained development approval for alterations and additions to an existing dwelling in 2011. Ordinarily this would allow him three years to substantially or fully complete the development before it lapses. Notwithstanding Council granting an additional three year extension to complete, the defendant failed to do so, resulting in Council taking proceedings pursuant to section 55 of the Act. These proceedings were resolved when an order was made by the Court with the consent of the parties requiring, amongst other things, that the development be fully completed by 15 February 2019.

The defendant did not complete the development within the ordered timeframe and Council prosecuted him with three offences, each relating to a failure to comply with the orders made by the Court. The defendant pleaded guilty to the three offences and the prosecution proceeded to sentencing.

Substantial completion of development

Whilst it was not contested by either party that the development was substantially commenced, it was argued by the defendant, via the use of photographic evidence, that the works had been substantially completed. In contrast, it was put forward by Council (and ultimately upheld by the Court) that the works were far from being substantially completed.

Whilst it was accepted that genuine attempts had been made by the defendant to complete the development since July 2019, however the Court found that in failing to comply with the timeframes that had been imposed upon him by consent orders, the defendant had not taken his obligations of compliance seriously.

Sentencing

In this matter the breach of the Court orders resulted in the imposition of both a fine and a record of conviction. As such, the Court placed significant emphasis on the nature of the breach and its seriousness. The defendant’s conduct in relation to the orders led His Honour Judge Durrant to form the view that Mr McKenzie was ‘simply ignoring the obligations required of him’ and that, as a consequence, imposing a penalty without recording a conviction would not be sufficient. Despite an argument by the defendant that the discretion to not record a conviction should be exercised, His Honour Judge Durrant declined to do so, stating “I have not formed the opinion that Mr McKenzie is unlikely to commit such an offence again” and that in the absence of a criminal conviction being recorded it “would have no or little personal deterrent effect on him”.

Relevantly, His Honour was of the opinion that the defendant consciously went against the timeframes provided by Council and the Court in believing that he was exempt from the ‘ordinary rules which apply to persons undertaking development’. This behaviour was not merely trifling and the personal circumstances surrounding his behaviour were not such to warrant the exercise of discretion in this regard.

That being said, the early guilty plea was enough to give a 40% discount on the eventual penalty, bringing the initial $15,000 fine down to $9,000 for an offence that carries a maximum fine of $60,000.

What does this mean?

Proceedings under Section 55 of the Act are relatively rare in practice, let alone a prosecution for a breach of a consent order in such proceedings. Nevertheless, the power for councils to commence such proceedings and to secure Court orders to resolve the proceedings remains a significant enforcement tool.

In this case the Court has reaffirmed the importance of completing development in a timely manner, which was appropriately summarised by His Honour Judge Durrant where he stated:

“The non-compliance has detracted from the amenity of the area. The non-compliance constituted a significant risk to the health and safety of those occupying the property, those attending at the property and the community.”

If you have any queries in relation to this article please contact Aden Miegel on 8217 1342 or by email at amiegel@normans.com.au.