Bankstown City Council v Ramahi

Land and Environment Court (NSW)|2015-04-23|Before: Preston CJ, Mr J, Ms J

Judgment

Bankstown City Council ('the Council'), by notice of motion filed on 26 February 2015, seeks an order under r 59.10(2) of the Uniform Civil Procedure Rules 2005 ('UCPR') extending the time for commencing proceedings for judicial review of decisions of Mr Kayellou pursuant to s 85A(6) of the Environmental Planning and Assessment Act 1979 ('EPA Act'), to issue two complying development certificates on 19 February 2014 and 7 April 2014 for development for the purposes of a secondary dwelling ('the development') on land described as Lot 60 in Deposited Plan 12116 known as 30 Virtue Street, Condell Park ('the land') owned by Ms Ramahi.
The Council seeks for the time to commence the proceedings to be extended to 26 February 2015. This was the day on which the Council filed its summons in this Court commencing the proceedings for judicial review of the complying development certificates.
Ms Ramahi (the first respondent) and Mr Kayellou (the second respondent) opposed the Council's application for an extension of time to commence the proceedings against them. Ms Ramahi appeared at the hearing of the Council's notice of motion, but Mr Kayellou did not appear, notwithstanding having appeared on an earlier occasion when the hearing of the notice of motion was fixed.
I have determined that r 59.10 of the UCPR does apply to the Council's proceedings for judicial review of the decisions to issue the complying development certificates and that the time for commencing the proceedings should be extended to the date of filing of the summons on 26 February 2015.

The decisions and the development challenged

Ms Ramahi, the owner of the land, engaged Unique Building Australia Pty Ltd ('UBA') to design and prepare plans, specifications and other documentation for alterations and additions to an existing dwelling, and construction of a secondary dwelling and attached outbuilding on the land, and then to build the development. Mr Jonathan Zymaras was a "building designer" with UBA. Mr Rabih (also known as Rob) Chamma is the principal of UBA.
The first set of plans prepared for the development bore UBA's name and logo and noted that they were drawn by Jonathan. Curiously, the client was shown as "Unique Building Australia" rather than Ms Ramahi. The first set of plans were described as Revision A "Complying Development Issue" and were dated 16 December 2013.
The plans asserted that the second dwelling had an area of 57m² and showed that the secondary dwelling was setback from the side and rear boundaries by 900mm.
Ms Ramahi (or UBA on her behalf) made application for the issue of a complying development certificate for the development to Mr Sam Kayellou, an accredited certifier. On 19 February 2014, Mr Kayellou determined the application by issuing a complying development certificate (no CDC 033/14). Mr Kayellou notified and sent a copy of the complying development certificate to the Council on 20 February 2014. Mr Kayellou also gave notice on 19 February 2014 of the intent to commence work after the date of determination of the complying development certificate.
On 28 March 2014, the plans for the development were amended. The amended plans still bore the name and logo of UBA and were shown to be drawn by Jonathan (Zymaras). The client was still shown as Unique Building Services. The plans were described as Revision B "Complying Development Issue" and were dated 28 March 2014.
Application was made by or on behalf of Ms Ramahi under s 87 of the EPA to modify the development of the subject of the complying development certificate no CDC 033/14. The plans that accompanied the application to modify the development continued to assert that the secondary dwelling had an area of 57m² and showed the side and rear setbacks as 900mm.
On 7 April 2014, Mr Kayellou determined the application for modification of the development by issuing an amended complying development certificate (no CDC 033/14/A) for the modified development shown in the UBA plans Revision B.
Mr Kayellou gave notice and sent a copy of the amended complying development certificate no CDC 033/14/A to the Council on 9 April 2014.
On 24 April 2014, the Council received a complaint from Mrs Jones on behalf of her mother who lived adjacent to the development at 29 Birdsall Avenue, Condell Park. The Council recorded that the proposed development was looking like it would be a two storey granny flat. On 30 April 2014, a councillor of the Council also raised concern about the granny flat being built on the land.
On 2 May 2014, Mr Sam Roche, a building surveyor with the Council, visited the adjacent land and spoke to Mrs Jones. She expressed concern about the loss of privacy from the secondary dwelling, that the roof of the garage will be used as a balcony and that the builders were blocking access to her driveway.
Mr Roche then visited the land. He observed that the development had been built to frame stage, with some external veneer walls being installed to the northern wall of the garage attached to the secondary dwelling. The roof of the secondary dwelling had not been loaded at this time. He took photographs of the development.
Mr Roche approached a tradesperson working on the land. Mr Roche gave the tradesperson his business card and asked him if he could arrange for the owner to contact him. About 10 minutes later, Mr Roche received a call from a man who identified himself as Rob Chamma and advised that he was the builder. The conversation took place to the following effect: RC: We have all the approvals in place. The dwellings are being built in accordance with those. SR: I acknowledge that the works undertaken don't appear to be that far removed from the plans but we have concerns in regard to the granny flat roof and the extension. I have a problem with the consent. I think it would be beneficial if we have a meeting onsite to determine what further action may be required. The granny flat roof is too high given the side and rear setbacks and needs to be brought down. Also there is not enough landscaping provided. We will assess the CDC ourselves against the SEPP. You should cease work on the granny flat. RC: Why does work have to cease? SR: Council will more than likely have an issue with the consent that has been issued and Court action is a real possibility.
On 2 May 2014, the accredited certifier, Mr Kayellou, made another determination to modify the complying development by issuing a further amended complying development certificate (no CDC 033/14/A.1). The plans of the development, which Mr Kayellou certified was complying development and was the subject of the further amended complying development certificate, no longer bore the name and logo of UBA or showed UBA as the client. They bore the name of a different designer. They were dated 10 January 2012. However, the site plan, showing the alterations and additions to the existing dwelling, the proposed secondary dwelling and the attached proposed garage, showed much of the same information about survey levels, setbacks from the boundaries and dimensions of the buildings. As the date of this site plan is earlier than the site plans that were the subject of the complying development certificate of 19 February 2014 and the amended complying development certificate of 7 April 2014, it is reasonable to infer that it was the base plan used by UBA for its subsequent plans submitted with the applications for the issue of those complying development certificates. However, the plans showing the floor plans, elevations and sections were different. The most notable difference was the deletion of the pitched roof with dormer window over the secondary dwelling and the substitution of a skillion roof within the 3.8m height limit.
The plans approved by the further amended development certificate no CDC 033/14/A.1 asserted that the secondary dwelling had an area of 60m² and still showed side and rear setbacks of the secondary dwelling of 900mm. Mr Kayellou gave notice and sent a copy of the amended complying development certificate no CDC 033/14/A.1 to the Council on 5 May 2014.
On 7 May 2014, Mr Roche visited the site and observed that work had ceased. He received a call from a man who identified himself as "John" and as being an associate of the builders, UBA. The man asked for an update. Mr Roche expressed concern about the overdevelopment of the site and in particular about the height and setbacks of the secondary dwelling. He said it is likely that the Council will issue a letter of demand setting out what is wrong with the development, what needs to be done, and the consequences if things are not done. Mr Roche took photographs of the development at the time.
On 9 May 2014, Mr Roche met with Mr Rob Chamma and Mr Jonathan Zymaras of UBA at the site. Mr Roche again expressed concern about the height and setbacks of the secondary dwelling. A conversation to the following effect took place: SR: We are concerned about the height of the granny flat given the setbacks. For the building height, you need greater side and rear setbacks. If you reduce the height of the granny flat you will comply. JZ: We weren't aware of the setback requirements of the Affordable Rental Housing SEPP and worked to what was approved by the certifier. Can we use the side setback calculation method of the Codes SEPP to justify the variation to the setbacks of the SEPP, and other parts of the DCP to justify the variation? SR: No, you can't pick and choose the bits of planning instruments to suit your needs. RC: The roof storage area is needed and I will be sued if it is taken down. SR: With the greatest of respect, that is not a significant factor for Council and we hear this a lot. JZ: What can we do to make it right? SR: You need to get the roof as low as possible. If you submit an amended plan I will review this as quickly as I can. We have received a further CDC which has a skillion roof at a height of 3.8m. This design is OK. JZ: We don't know anything about that, and we won't be building to those plans.
On 13 May 2014, Mr Roche had a telephone conversation with the accredited certifier, Mr Kayellou, to the following effect: SK: Can you please Council's position to me. SR: Council is concerned about the height of the granny flat and attached garage. They don't comply with the Affordable Rental Housing SEPP because the side and rear setbacks aren't sufficient for the roof height that has been approved. SK: Yes the roof height is a problem. There is an amended plan approved with a skillion roof to the second dwelling. SR: I have seen this, but I spoke to the builder and architect and they told me that this was approved without their knowledge. They haven't seen it and they are not inclined to build to it. The rear setback required for the secondary dwelling is 8 metres under the ARH SEPP. The ARH SEPP prevails over the Codes SEPP where there is an inconsistency. Council will be OK with a reduction in the roof height to 3.8m but is unlikely to support a building certificate for the roof and will take action if the height isn't reduced.
Following that conversation, Mr Roche received a telephone call from Mr Kayellou. Mr Kayellou said: I have spoken to the builder and advised him about the issue with the roof of the granny flat. I told him that they will need to make it a skillion roof because Council wouldn't support a building certificate.
Following that conversation, Mr Roche received an email from Mr Kayellou explaining his interpretation of the SEPPs.
On 15 May 2014, Mr Roche received an email from Mr Zymaras attaching revised plans and a report by UBA. The revised plans still showed a pitched roof over the secondary dwelling but proposed a cutback of the northern section of the pitched roof to increase sunlight over the lower attached garage towards the adjoining property to the north.
The attached report noted that the Council was of the view that the development was not complying development as the secondary dwelling did not have an appropriate rear setback due to the ridge height, as required by cl 10(2) of Sch 1 of ARH SEPP, and therefore should be demolished. UBA submitted that demolition was not appropriate in the circumstances for five stated reasons. UBA suggested redefining the current built roof in the manner shown in the attached amended plans.
On 19 May 2014, Mr Roche responded to Mr Zymaras stating that the Council did not support the proposed amendment to the roof profile shown in the attached plans and instead required that the roof of the secondary dwelling (and the attached garage) be reduced in height to be no more than 3.8m above natural ground level to the highest part of any part of the roof ridge. Mr Roche responded to each of the reasons UBA gave as to why demolition was not appropriate. Mr Roche gave evidence that despite his email to UBA, the proposed amendment to the northern section of the secondary dwelling roof was subsequently constructed, contrary to any of the complying development certificates issued for the development.
On 26 May 2014, Mr Roche telephoned Mr Chamma and a conversation to the following effect took place: SR: How did your meeting with the owner go? Can you please give me an update? RC: I was sick and unable to meet with her. SR: We have commenced drafting a letter of demand. All work should cease and letter of demand will be forthcoming. RC: Why isn't Council negotiating on this? SR: There are some things that Council will accept, but this isn't one of them. The secondary dwelling doesn't comply and if this is allowed to go through, it will create an unacceptable precedent. You need to cease all work on site until this is resolved.
On 19 June 2014, Mr Roche wrote a letter of demand to the owner, Ms Ramahi, and sent a copy of the letter of demand to the builder, Mr Chamma of UBA, and the private certifier, Mr Kayellou. In the letter of demand to Ms Ramahi, Mr Roche said, amongst other things: I refer to a recent enquiry received by Council in regards to the development currently under construction at the above property, and recent conversations between Council staff, your builder (Unique Building Australia Pty [Ltd]), and the appointed Principal Certifying Authority (PCA). Council requires you to cease all building work on the property known as 30 Virtue Street, Condell Park, until such time as the following concerns have been addressed, and the matter finalised. Council has significant concerns in regards to the validity of the complying development certificate and associated amendments (CDC 033/14 and CDC 033/14/A) issued by the accredited certifier, Mr Sam Kayellou. The concerns relate primarily to the approved roof height of the secondary dwelling, the setbacks that had been provided from the secondary dwelling, and the internal layout of the two storey addition to the existing single storey (principal) dwelling, which are insufficient and do not comply with the relevant provisions of the State Environmental Planning Policy (Affordable Rental Housing) 2009 ('ARH SEPP'). This point may affect the validity of the complying development certificate that has been issued, and will create an unacceptable precedent to the area for further undesirable development. Council believes the following deficiencies exist with CDC 033/2014 and CDC 033/2014/A, and that the development does not satisfy the following development standards of the ARHSEPP and the Codes SEPP respectively; … 3. ARHSEPP - Schedule 1 Clause 4(1) - allows for a maximum floor area of 60 square metres for the secondary dwelling. The floor area has been calculated at 73.62 square metres which includes the approved roof area accessible by the "roof access attic ladder" as indicated on the architectural plans approved under CDC 033/14/A on 7 April 2014, and 4. ARHSEPP - Schedule 1 Clause 9(2) - As the maximum height of the secondary dwelling is approximately 7 metres (measured from the roof ridge to natural ground level), the required eastern side setback is a minimum 1.7 metres, where only 900mm has been provided, and; 5. ARHSEPP - Schedule [1] Clause 10(2)(a) - As the maximum height of the secondary dwelling is 7 metres (measured from the roof ridge to natural ground level), the secondary dwelling (including the attached garage) requires a minimum rear setback of 8 metres, where only 900mm has been provided. … As a result of the above non compliances, Council considers that the complying development certificate is invalid, and development has been carried out in contravention of s76A of the Environmental Planning and Assessment Act 1979. Council requires the following rectification work to carried out; to ensure that the development will more appropriately reflect the intent of the planning policies that were relied upon in granting consent to the development. This work must be carried out within fourteen (14) days from the date of this letter; 1. Undertake the necessary rectification work to ensure that the roof height of the secondary dwelling and attached garage does not exceed 3.8 metres at any point. The maximum 3.8 metre roof height is to be measured from the existing natural ground level to the highest point on the roof of the secondary dwelling at any part, and; … Council records indicate that CDC 033/14/A.1 has been issued by Mr Sam Kayellou on 2 May 2014 which indicates a lower roof profile (skillion roof) to the secondary dwelling, however recent discussions with your builder, Unique Building Australia Pty [Ltd], indicates that there is no intention to build the development in accordance with the plans under CDC 033/14/A.1, and it is not clear whether an application was made to Mr Sam Kayellou to modify CDC 033/14/A. Council is also concerned that despite repeated requests to cease work, further building work appears to have been undertaken to the roof of the secondary dwelling. Please be advised that should you not attend to the required rectification works within the time period allowed, Council will commence proceedings in Class 4 of the Land and Environment Court seeking a declaration that the complying development certificate is invalid, and orders of the Court requiring you to attend to these matters. Should these proceedings be necessary, Council may require further rectification work than what has been stated in this letter. If Council is required to commence such proceedings, then Council will also be seeking orders of the Court requiring you to pay its professional costs incurred in taking such proceedings. Council requires your immediate attention to this matter. Please do not hesitate to contact me on 9707 9830 Monday to Friday during business hours should you require further clarification. [Letter signed by Mr Sam Roche]
In the letter to Mr Kayellou, dated 19 June 2014, Mr Roche said in part: I refer to a recent enquiry received by Council in regards to the ongoing development at the above address, and recent discussions with yourself. Please find attached a letter of demand that has been sent to the Owner of the property. I have forwarded a copy for your records, and would appreciate that you notify Council immediately, should you become aware of any information that may affect the terms of the attached letter. Council's view is that the complying development certificate that has been issued was invalid on the basis that it does not comply with the relevant development standards set out in the State Environmental Planning Policy (Affordable Rental Housing) 2009 and State Environmental Planning Policy (Exempted Complying Development Codes) 2008. Should the required rectification works as outlined in the attached letter not be attended to within the time period specified, Council will commence proceedings in Class 4 of the Land and Environment Court jurisdiction seeking orders of the Court requiring that the specified matters be attended to. If Council is required to commence such proceedings, it will be seeking declarations of the Court that CDC 033/14, CDC 033/14/A and CDC 033/14/A.1 have been invalidly issued. Should this be necessary, you will be joined as a respondent to the proceedings as the person who issued the complying development certificates. In the event that such proceedings are brought, Council may seek its professional costs from you in the event that it is successful in the proceedings. Prior to this, Council wishes to provide you with an opportunity of confirming the reason for the issue of complying development certificates, the intended purpose of the issue of the complying development certificates and the legislative basis that you relied upon to issue the complying development certificates. Furthermore, Council would like you to confirm and provide evidence of all application forms submitted to you for the above mentioned complying development certificates as required in accordance with Clause 130(4)(a) of the Environmental Planning and Assessment Regulation 2000. Please provide a response within fourteen (14) days from the date of this letter …
Mr Roche also sent a letter of demand to Mr Chamma of UBA referring to the recent conversations that Mr Roche had had with UBA and attaching a copy of the letter of demand to the owner of the property, Ms Ramahi.
Mr Roche's letters of demand prompted Mr Kayellou to give notice of intention to serve an order under s 109L of the EPA Act to Ms Ramahi. The notice had a reference to the complying development certificate no CDC 033/14/A.1 (which was issued on 2 May 2014). The notice stated that the development being carried out on the land is not in accordance with the consent, in particular, the constructed roof does not comply with the approved plans. The approved plans for complying development certificate no CDC 033/14/A.1 showed a skillion roof with a maximum height of 3.8m. The roof of the secondary dwelling that was being constructed was a pitched roof with a ridge height of around 7m, although with a cutback at its northern section. As required by s 109L(3) of the EPA Act, Mr Kayellou sent a copy of the notice to the Council on 26 June 2014.
On the same day, 26 June 2014, Mr Roche replied to Mr Kayellou saying that: In regards to the Notice for 30 Virtue Street, Condell Park, I do not envisage Council serving an Order as notified. The reason for this is that Council intends commencing class 4 proceedings should the work outlined in Council's letters of demand not be undertaken. A copy of Council's letter of demand has already been forwarded to you for your records.
On 8 July 2014, the Council's Mayor, Councillor Asfour, Mr Barry Burke of the Council and Mr Chamma of UBA held a meeting on site. Mr Roche understood that Mr Chamma said at the meeting that an independent report would be provided to the Council.
On 30 July 2014, Mr Roche received a telephone call from Ms Ramahi, the owner of the land, and had a conversation to the following effect: SR: My supervisor has undertaken a site inspection and was told that an independent report will be submitted. We haven't received anything yet. We believe that the complying development certificates for the granny flat are invalid because the development doesn't comply with the ARH SEPP. Council believes that the departures from the SEPP are significant. The main concern is the height of the granny flat, given the setbacks. Under the SEPP, the building height and setback provisions work together. If you have a side setback of 0.9m, then the building height needs to be 3.8m. If the height of the building is 7 metres then you need a rear setback of 8m and a side setback of 1.7m. We are willing to accept the setbacks as built, if the height of the building is reduced. If we can't agree, then it is likely that court action will occur. I am happy to meet with you as the owner and talk you through the issues in detail, so that you understand what is required and why. Dianna Ramahi: ok, if there's an issue then we need to resolve it. I will talk to my husband and let you know.
A few minutes after the conversation with Ms Ramahi, Mr Roche received a telephone call from Mr Chamma of UBA and a conversation to the following effect took place: RC: I have just received a call from the owner abusing me. We are going to send you a report about the granny flat and we will apply for a building certificate. It is late because of Ramadan. Council is being unreasonable because the granny flat could be approved as a secondary dwelling under Council's DCP. You have threatened the owner with Court action. You are not being reasonable like Barry [Burke]. SR: I don't think we will support a building certificate. Also, I don't think that I threatened the owner, I am just trying to be honest about the significance of the matter and how Council might act.
On 29 October 2014, Mrs Jones complained again to Mr Roche that the builders were blocking access to her driveway. On 5 November 2014, Mr Roche attended the site and observed that building work was in progress and that the construction of the veneer external walls had been finalised and rendered.
On 20 November 2014, the Council's solicitors wrote a letter before action to Ms Ramahi and Mr Kayellou. The letter to Ms Ramahi stated in part: As you will recall, on 19 June 2014, Council wrote to you setting out its concerns in relation to development occurring on your property. In particular, Council raised concerns about the height of the secondary dwelling on your property, and indicated that rectification work should be undertaken to ensure that the roof height of the secondary dwelling and attached garage does not exceed 3.8m. Prior to this letter, Council repeatedly raised its concerns with your builders and private certifier, Mr Kayellou, both of whom were put on notice on a number of occasions that work on the secondary dwellings should cease. I am instructed that Council has received no response to its letter, and not only have no rectification works been undertaken, despite ample time having been provided to do so, but the work on the secondary dwelling has continued. Accordingly, I have been instructed to commence proceedings against you and Mr Kayellou in the Land and Environment Court seeking a declaration that the complying development certificates issued by Mr Kayellou are invalid, and seeking an order requiring work to be undertaken so that the height of the secondary dwelling is lowered. Should you consider that there are any reasons why the Council should not commence proceedings against you, the Council invites you [to] identify those reasons in writing within seven (7) days of the date of this letter. Alternatively, if you decide to carry out the work to reduce the height of the roof, please let me know and provide a timeframe within which the work will be completed. If you dispute that the complying development certificates issued by Mr Kayellou are invalid, you should tell me why so that I may consider this and provide the Council with any appropriate advice. If I do not hear from you or the Council is not satisfied with your response, I expect the proceedings will be commenced against you without further notice. In the interim, Council requires you to instruct your builders to immediately cease work on the secondary dwelling. If further work is carried out, Council will have no alternative but to immediately seek an urgent injunction from the Court requiring the work to cease. I urge you to deal with this matter proactively at the earliest opportunity so as to avoid the need for proceedings to be commenced. Any such proceedings will involve considerable expense that the Council will have no alternative but to seek to recover from you.
The letter to Mr Kayellou stated in part: As you will recall, on 19 June 2014, Council wrote to you setting out its concerns in relation to development occurring at premises at 30 Virtue Street, Condell Park. In that letter, Council raised concerns about the validity of two complying development certificates (CDCs) issued by you. In particular, Council indicated that the height of the second dwelling as approved by the CDC and amended CDC did not comply with the development standards in Schedule 1 of the State Environmental Planning Policy (Affordable Rental Housing) 2009 (ARH SEPP) having regard to the approved setbacks. Council indicated that rectification work should be undertaken to ensure that the roof height of the secondary dwelling and attached garage does not exceed 3.8m. Prior to this letter, Council repeatedly raised its concerns with the owner, builders and you. You were put on notice on a number of occasions that work on the secondary dwelling should cease. A further CDC was issued by you on 2 May 2014 (CDC 033/14/A.1) for an amended design with a reduced building height. Council has requested a copy of the application for amendment of the CDC received by you. I am instructed that Council has received no response to its letter, no rectification works have been undertaken, and you have failed to provide a copy of the further application to amend the CDC, despite ample time having been provided to you to do so. Accordingly, I have been instructed to commence proceedings against you and [Dianna] Ramahi in the Land and Environment Court seeking a declaration that the CDC issued by you is invalid, and seeking an order requiring the height of the secondary dwelling to be lowered. Should you consider that there are any reasons why the Council should not commence proceedings against you, the Council invites you [to] identify those reasons in writing within seven (7) days of the date of this letter. If you dispute that the CDCs are invalid, you should tell me why so that I may consider this and provide the Council with any appropriate advice. Further, it would assist if you provided me with a copy of the application that resulted in the issue of CDC 033/14/A.1 by you. If I do not hear from you or the Council is not satisfied with your response, I expect the proceedings will be commenced against you without further notice. I urge you to deal with this issue proactively at the earliest opportunity so as to avoid the need for proceedings to be commenced. Any such proceedings will involve considerable expense and the Council will have no alternative but to seek to recover from you.
On 24 November 2014, Mr Roche had a telephone conversation with Ms Ramahi to the following effect: SR: Have you received a copy of the letter from our lawyers? DR: No I haven't. SR: OK, the letter states that the Council is going to bring proceedings against you because you are the owner of the property. DR: I have left everything to the builders. You need to talk to them. SR: OK, but you need to understand that the proceedings will be brought against you.
On 25 November 2014, UBA on behalf of Ms Ramahi lodged an application for a building certificate for the development erected on the land. The application attached plans showing the buildings, including the secondary dwelling. The plans bore the name and logo of UBA and stated the client as UBA and were drawn by Jonathan. This version of the plans was stated to be "Rev A Building Certificate Issue" and was dated 23 June 2014. The east and west elevations showed the roof over the secondary dwelling as a pitched roof with a cutback on the northern section. The report accompanying the application stated that the ridge height of the pitched roof was 7.1m. The plans asserted that the secondary dwelling had an area of 57m² and still showed side and rear setbacks of 900mm.
On 4 December 2014, Ms Ramahi's solicitors wrote to the Council's solicitors requesting that the Council not commence proceedings in the Land and Environment Court for declaratory and injunctive relief until Ms Ramahi's application for a building certificate had been determined by the Council.
On 19 December 2014, the Council wrote to UBA regarding the application for a building certificate. On 10 February 2014, the Council determined to refuse the application for a building certificate because the secondary dwelling did not comply with s 149D of the EPA Act because, amongst other reasons: 1. The secondary dwelling has not been constructed to comply with the development standards for complying development under State Environmental Planning Policy (Affordable Rental Housing) 2009 in that: (a) The sum of the ground floor area and loft floor area of the secondary dwelling exceeds 60 square metres; (b) The secondary dwelling has a setback from the side boundary of less than 1.7 metres; and (c) The secondary dwelling and attached garage has a setback from the rear boundary of less than 8 metres.
On 26 February 2015, the Council filed the summons commencing these proceedings.

The grounds of challenge

The Council's case is that the complying development certificates issued by Mr Kayellou are invalid as the development the subject of the certificates does not comply with the following development standards in Schedule 1 to ARH SEPP: 1. cl 4(1) because the sum of the ground floor area and the loft floor area of the secondary dwelling is 73.62m², which exceeds the maximum floor area of 60m²; 2. cl 9(2) because the side setback for the secondary dwelling is only 0.9m, which is less than the required side setback of 1.7m (on the basis that the roof height is around 7m); 3. cl 10(2)(a) because the rear setback of the secondary dwelling is only 0.9m, which is less than the required rear setback of 8m for a secondary dwelling (with a roof height of around 7m).
The development was, therefore, not complying development in respect of which complying development certificates could be issued.

Extension of time to commence proceedings is required

UCPR r 59.10 introduced a new time limitation period for commencing proceedings for judicial review of a decision. It applies to the Supreme Court and the Land and Environment Court (r 59.1(1)(b)). Rule 59.10(1) fixes a time limit for commencing proceedings for judicial review of a decision of three months from the date of the decision.
However, the Court has discretion, exercisable at any time, to extend the time for commencing proceedings (r 59.10(2)). In exercising the discretion to extend the time, the Court is to take account of such factors as are relevant in the circumstances of the particular case, including the following factors in r 59.10(3): (3) In considering whether to extend time under subrule (2), the court should take account of such factors as are relevant in the circumstances of the particular case, including the following: (a) any particular interest of the plaintiff in challenging the decision, (b) possible prejudice to other persons caused by the passage of time, if the relief were to be granted, including but not limited to prejudice to parties to the proceedings, (c) the time at which the plaintiff became or, by exercising reasonable diligence, should have become aware of the decision, (d) any relevant public interest.
However, r 59.10 does not apply to proceedings in which there is a statutory limitation period for commencing the proceedings (r 59.10(4)) or to any proceedings in which the setting aside of a decision is not required (r 59.10(5)).
The proceedings brought by the Council challenged the validity of two complying development certificates issued under the EPA Act. The summons commencing the proceedings seeks a declaration that the complying development certificates are "invalid and of no effect". The making of such a declaration would have a constitutive effect of setting aside the complying development certificates. Hence, the exception in r 59.10(5) does not apply.
The exception in r 59.10(4), however, might apply. The EPA Act does provide for a statutory limitation period for commencing proceedings challenging the validity of a complying development certificate. This statutory limitation period is provided for in s 101 of the EPA Act. The time limitation period is three months and that period commences on the date on which public notice of the granting of a complying development certificate is given. Clause 137 of the EPA Regulation prescribes the procedures for giving public notice for the purposes of s 101.
In this case, neither the accredited certifier, Mr Kayellou, nor the Council has given public notice in a local newspaper of any of the three determinations of the applications for the issue of complying development certificates. As a consequence, the three month limitation period within which proceedings questioning the validity of these complying development certificates must be commenced, has not yet begun to run. In these circumstances, the Council was concerned that there might not be, under r 59.10(4), an operative statutory limitation period for commencing the proceedings challenging the decisions to issue the complying development certificates, and the time limitation period in r 59.10(1) would still apply.
During the hearing of the Council's motion, I was inclined to think that s 101 of the EPA Act in itself could be described as a statutory limitation period for commencing proceedings for judicial review of a decision to grant a development consent or a complying development certificate, regardless of whether a time limitation period in that section has been made operative by public notice of the decision being given. However, I now think that this view may not be correct. The proceedings to which r 59.10(4) refer are the particular proceedings for judicial review of a decision: the subrule refers to there being a statutory limitation for commencing "the" proceedings, not proceedings in general or proceedings of a particular class. In this case, the proceedings are the proceedings the Council has commenced questioning the validity of the decisions to issue the complying development certificates made by Mr Kayellou. Rule 59.10(4) focusses on whether there is a statutory limitation period for commencing these proceedings. If there is, r 59.10 does not apply but if there is not, r 59.10 does apply.
In this case, because no public notice has been given for the purposes of s 101 of the EPA Act of the decisions to issue the complying development certificates, s 101 of the EPA Act does not operate to establish a three month limitation period for commencing proceedings for judicial review of those decisions. This means, for the purposes of r 59.10(4), there will only be a statutory limitation period for commencing proceedings for judicial review of decisions to grant development consent or a complying development certificate if and when public notice of the decisions is given for the purposes of s 101 of the EPA Act.

The factors to be considered in extending time for commencing the proceedings

The factors to be considered in determining whether to extend time for commencing the proceedings for judicial review include the four factors in r 59.10(3) as well as the length of delay, the reasons for the delay and whether the applicant has a fairly arguable case: Toth v Director of Public Prosecutions (NSW) [2014] NSWCA 133 at [9]; Dyason v Butterworth [2015] NSWCA 52 at [65].

Council's interest in challenging the decisions

The Council has an interest in challenging the decisions to issue the complying development certificates. The Council is the local government authority with responsibility for upholding and enforcing the EPA Act and environmental planning instruments made under it, including ensuring that development is carried out in accordance with the EPA Act. If an environmental planning instrument provides that development is complying development only if it complies with predetermined development standards, and may only be carried out in accordance with a complying development certificate, the Council has a responsibility to ensure that any development within its local government area complies with the applicable development standards and is carried out in accordance with a valid complying development certificate.
The Council has an interest in challenging decisions of accredited certifiers who issue complying development certificates to developments that are not in fact complying developments.
The Council submitted that this interest is clearer where non complying development causes or is likely to cause amenity impacts. The Council submitted that the secondary dwelling on the land, by reason of its excessive height and insufficient side and rear setbacks, is likely to cause amenity impacts to neighbours, including Mrs Jones, such as loss of privacy and the potential for the garage to be used for a balcony.
Ms Ramahi did not disagree that the Council has an obvious interest in challenging decisions of accredited certifiers to issue complying development certificates for developments that are not complying developments. However, Ms Ramahi submitted, the Council's interest is better placed by challenging the decisions when the Council is first notified of the issue of the complying development certificate, rather than delaying commencing proceedings to the detriment of the owner of the land who has carried out development in reliance upon the complying development certificate.
I accept the Council's submissions that it has a responsibility and an interest in challenging the decisions to issue the complying development certificates in this case, which responsibility and interest are not diminished by the delay in commencing the proceedings.

Prejudice to persons by delay

If time to commence the proceedings were to be extended, and the Court were to grant the declaratory and injunctive relief sought by the Council in the proceedings, Ms Ramahi will no doubt incur expense in demolishing and rebuilding the buildings on the land. However, such expense, the Council submitted, is not prejudice to Ms Ramahi within r 59.10(3)(b). The Council submitted that such expense is not "caused by the passage of time", that is to say, by the delay in commencing the proceedings.
The Council submitted that the relevant reference point to ascertain whether prejudice has been caused by the passage of time is the end date of the three month periods from the dates of each decision to issue the complying development certificates, namely 19 May 2014 (for the first complying development certificate), 7 July 2014 (for the amended complying development certificate) and 2 August 2014 (for the further amended complying development certificate). The Council submitted that the only delay of relevance is after these dates.
The Council submitted, however, that the evidence was that Ms Ramahi and her builder, UBA, and the private certifier Mr Kayellou, were put on notice on numerous occasions that the proposed development was not complying development, as it did not comply with the relevant development standards, and that the complying development certificates were invalid. The Council repeatedly requested that building work should cease and that rectification works needed to be undertaken. The Council threatened bringing court proceedings if its requests were not met. Nevertheless, Ms Ramahi and her builders continued carrying out the development regardless. The Council submitted that whatever prejudice has arisen is entirely Ms Ramahi's responsibility.
Ms Ramahi submitted that the prejudice she may suffer is not limited to that caused by the Council delaying commencing proceedings until after the expiry of the three month period after each decision to issue a complying development certificate. Ms Ramahi referred to the estimate of costs provided by Mr Chamma of UBA in his affidavit of $56,507 to demolish and rebuild the secondary dwelling as sought by the Council. Ms Ramahi submitted that if the Court extended the time to commence the proceedings and the Council succeeded in obtaining the injunctive relief it seeks, she will suffer this expense. On the other hand, if time is not extended, the Council will not be able to obtain that relief and she will not be forced to incur that expense. Ms Ramahi submitted, therefore, that this expense is also a prejudice that she will suffer by the passage of time.
Ms Ramahi also pointed out that the first time the Council contacted Ms Ramahi directly, rather than dealing with her builder, UBA, or private certifier, Mr Kayellou, was on 19 June 2014 when the Council sent her a letter of demand. By that time, a good deal of the building work had been completed. Ms Ramahi submitted that the prejudice she suffered was the work done and the expense incurred from the date of issue of each of the complying development certificates until Ms Ramahi was personally told about the invalidity of the complying development certificates and the development not being complying development.
I am not satisfied that any prejudice that Ms Ramahi might suffer is sufficient to not extend the time for commencing the Council's proceedings. First, Ms Ramahi and her builder, UBA, bear primary responsibility for proposing and applying for the issue of a complying development certificate for development that was not complying development. Ms Ramahi, by her agent, UBA, proposed a secondary dwelling for the land that substantially breaches the development standards for floor area and side and rear setbacks under the applicable ARH SEPP. Ms Ramahi, by her agent, UBA, applied to a private certifier to have development that did not comply with these development standards certified as complying development. It is true that Mr Kayellou, on no less than three occasions, did issue CDCs for development that was not complying development. However, that conduct does not absolve Ms Ramahi of responsibility for proposing and then carrying out development that was not and could not be complying development.
Secondly, the prejudice with which r 59.10(3)(b) is primarily concerned is the prejudice that is caused by the Council not commencing proceedings for judicial review of the decisions to issue the complying development certificates within the three month period from the date of the decisions. This is the passage of time to which the subrule refers. The relevant comparison is between the expenses that Ms Ramahi is likely to incur if the Court were to extend the time for the Council to commence the proceedings and the expenses that she would have been likely to incur if the Council had commenced the proceedings within the three month period. For example, if Ms Ramahi carried out further building work in the period between those dates and had not been given notice of the potential invalidity of the complying development certificates and the development not being complying development, the additional expenses that might be incurred in demolishing the further building work that was done in this period might be prejudice caused by the passage of time.
In this case, however, a substantial part of the building work was done before the expiry of the three month periods from the dates of any complying development certificates. The expense of demolishing the building work carried out in these periods cannot be prejudice caused by the passage of time.
With regard to the building work done after these dates, Ms Ramahi and her builder, UBA, were put on notice of the fact that the secondary dwelling was not complying development, because it was too high and had too little setbacks from the side and rear boundaries, and that the complying development certificates were therefore invalid. Ms Ramahi and her builder were warned not to carry out any further building work. Notice was first given to Ms Ramahi's builder and accredited certifier and then she was given notice directly by the letter of demand on 19 June 2014. This was still before the three month period from the date of the amended complying development certificate of 7 April 2014, in accordance with which Ms Ramahi asserted that she was at the time carrying out the development.
There is force in the Council's submission that Ms Ramahi decided to proceed with the development, notwithstanding the real risk that it might be unlawful and later be ordered to be demolished.
Thirdly, the development that Ms Ramahi carried out was not in accordance with the further amended complying development certificate no CDC 033/14/A.1 dated 2 May 2014. Neither the Council nor Ms Ramahi sought to rely on that complying development certificate being valid. However, Mr Kayellou purported to exercise the power under s 87(1) of the EPA Act to modify the development the subject of the previous complying development certificate, namely the amended complying development certificate no CDC 033/14/A issued on 7 April 2014, and upon doing so, the further amended complying development certificate became the only extant and operative complying development certificate. It replaced the earlier complying development certificate. Whatever concerns the Council and Ms Ramahi might have had about the circumstances in which that further amended complying development certificate was issued, it remained valid unless and until it was set aside by this Court. It was the only complying development certificate that could authorise the carrying out of the development on the land.
However, that further amended complying development certificate approved the secondary dwelling with a skillion roof to a maximum height of 3.8m. The secondary dwelling that Ms Ramahi has constructed, however, has a pitched roof to 7m in height and is not in accordance with the approved plans the subject of the further amended complying development certificate issued on 2 May 2014.
Furthermore, Ms Ramahi's builder, UBA, further modified the plans of the roof over the secondary dwelling so as to be different to the roof in the plans approved by either the complying development certificate of 19 February 2014 or the amended complying development certificate of 7 April 2014. The modified plans cut back the northern section of the pitched roof over the secondary dwelling from that which had been approved by the earlier complying development certificate plans. Ms Ramahi built the secondary dwelling in accordance with that modified plan. No approval was obtained to modify the development the subject of the complying development certificate in this way. In this respect as well, Ms Ramahi has carried out development on the land otherwise than in accordance with any of the complying development certificates that had been issued.
Hence, the building work Ms Ramahi might be ordered to demolish includes building work that she carried out otherwise than in accordance with the complying development certificates that are the subject of the Council's judicial review proceedings. This is not prejudice suffered by the Council's delay in bringing the judicial review proceedings.
Fourthly, Ms Ramahi's claim of prejudice is lessened by the fact that Ms Ramahi did not give any evidence at the hearing of the motion concerning the knowledge and information she had about the proposed development not complying with the relevant development standards; the ramifications for the issue of complying development certificates for that development; the Council's communications with and notices given to her builder, UBA, and certifier Mr Kayellou; the decisions made to continue constructing the development notwithstanding the notice given; and the decision to construct the development otherwise than in accordance with the various complying development certificates. Ms Ramahi chose instead only to adduce evidence, by way of affidavit, of her builder, Mr Chamma of UBA.

Council's awareness of the decision

The Council was notified by Mr Kayellou of each of his decisions to issue complying development certificates within a couple of days. However, the Council did not check the complying development certificates at the time of receipt. I do not accept Ms Ramahi's submission that the Council acted unreasonably in not checking the complying development certificates at the time it received them. The statutory scheme regulating complying development certificates requires the accredited certifier to ensure and to certify that the development is complying development under the EPA Act and that it will comply with all relevant development standards. There are criminal sanctions if the certifier incorrectly certifies. The Council is entitled to presume that the complying development certificates have been issued in compliance with the EPA Act, the EPA Regulation and the applicable environmental planning instrument and development standards.
It was not until the Council received a complaint from a neighbour that the Council inspected the land and became concerned that the complying development certificate that it had received had not been issued in compliance with the statutory requirements. The Council thereafter gave notice to Ms Ramahi's builder and certifier, within a reasonable period of time, of the problems with the complying development certificates and the development not complying with the applicable development standards under ARH SEPP.
The Council's actions in trying to resolve the problems by requests and letters of demand to Ms Ramahi and the builder and the certifier, rather than immediately commencing court proceedings, was not unreasonable.
In contrast, Ms Ramahi took no positive action to address the problems of the invalidity of the complying development certificates and the development not being complying development until UBA lodged, on Ms Ramahi's behalf, an application for a building certificate for the non-complying development and Ms Ramahi's solicitors requested that the Council delay commencing proceedings until after the Council determined the building certificate application. The Council complied with that request and did not commence the proceedings until about two weeks after the Council determined to refuse Ms Ramahi's building certificate application. Ms Ramahi, her builder and the certifier, Mr Kayellou, all failed to take action to address the obvious problems about which the Council had notified them.

Public interest

As earlier noted, it is in the public interest that the Council be allowed to bring these proceedings to challenge the validity of the complying development certificates and to remedy the breach of the EPA Act caused by Ms Ramahi carrying out, without consent, development that is not complying development.
Ms Ramahi submitted that there is a public interest in the certainty and finality that comes from decisions to issue complying development certificates not being able to be challenged more than three months after the decisions have been made. That public interest flows from r 59.10, not the EPA Act. The EPA Act's solution to the problem of certainty and finality is in s 101 of the EPA Act. However, that requires public notification to be given for the purposes of s 101 and any time limitation for commencing proceedings challenging decisions to issue complying development certificates only begins to run after such public notice is given. Public notice has not been given in this case and hence the EPA Act's solution to the concerns about certainty and finality is not yet operative.
In any event, I am not persuaded that the public interest in certainty and finality of decisions to issue complying development certificates outweighs, in the circumstances of this case, the public interest in upholding and enforcing the statutory scheme requiring complying development certificates only to be issued to development that is complying development and for development to be carried out in accordance with valid complying development certificates.

Length of and reasons for delay

In this case, the length of the delay after the expiry of the three month period prescribed by r 59.10(1) is about 9 months for the original complying development certificate and 6.5 months for the amended complying development certificate. In the circumstances I have discussed above, that delay is not undue and has been adequately explained.

Strength of the Council's case

The Council submits that its case that the complying development certificates are invalid is not merely fairly arguable, it is unarguable. The secondary dwelling approved by each of the complying development certificates does not comply with the development standards for floor area and setbacks from the side and rear boundaries under ARH SEPP. The non-compliances are significant. Ms Ramahi did not put forward any argument in defence of the Council's case that the complying development certificates are invalid because the development is not complying development. The Council is, therefore, highly likely to succeed in establishing that the secondary dwelling does not comply with the applicable development standards of ARH SEPP and is not complying development, and hence that the complying development certificates were issued outside power and in breach of the EPA Act.
In addition to establishing breach, the Council still will need to establish that the Court should grant orders remedying the established breach of the EPA Act. The Council submitted that there is a high likelihood that the Court would make a declaration that the complying development certificates are invalid. The Council also submitted that it has reasonable prospects that the Court would grant injunctive relief requiring the demolition or rebuilding of the secondary dwelling. The Council relied on the evidence relied on earlier concerning Ms Ramahi and her builder proposing development that was clearly not complying development; being given notice by the Council that the proposed development did not comply with relevant development standards in ARH SEPP and was not therefore complying development, that the complying development certificates were invalid, that further building works should cease, and that building work already undertaken should be rectified; carrying out the development notwithstanding having been given notice of these matters; and carrying out development otherwise than in accordance with the extant complying development certificate of 2 May 2014 and indeed, in relation to the pitched roof, otherwise than in accordance with any complying development certificate. The Council submitted that the Court is unlikely in these circumstances to exercise its discretion to decline to grant relief to remedy the clear breach of the EPA Act involved in carrying out development that is not complying development and not in accordance with a valid complying development certificate.
Ms Ramahi submitted that she has a strong case that the Court would not, in its discretion, grant injunctive relief requiring her to demolish or rebuild the secondary dwelling. She relied on the same factors that she had put forward concerning the delay in the Council commencing these proceedings that I have summarised above.
I consider the Council has reasonable prospects of obtaining relief to remedy the clear breach of the EPA Act by carrying out development, without consent, that is not complying development and not in accordance with a valid complying development certificate.
First, the Council is highly likely to obtain declaratory relief that the complying development certificates are invalid. The Council's case that the complying development certificates were issued for development that does not comply with the development standards of the ARH SEPP and hence were ultra vires is strong. There is clear utility in setting aside these invalid complying development certificates.
Secondly, it is, at the least, fairly likely that the Court would order the demolition or rebuilding of the secondary dwelling that is not complying development and has not been carried in accordance with any complying development certificate. On the evidence so far adduced, I do not consider that Ms Ramahi's case for a discretionary withholding of injunctive relief to remedy the clear breach of the EPA Act can be characterised as strong.

Conclusion and order

I consider that the Council has made out a strong case for extending the time for commencing the proceedings to challenge the validity of the complying development certificates issued by Mr Kayellou to the date that the Council filed its summons commencing proceedings of 26 February 2015.
The Council and Ms Ramahi both accepted that if I decided to extend the time to commence the proceedings, the costs of the Council's motion should be costs in the cause. I agree that this is the appropriate costs order.
I make the following orders: 1. The time to commence these proceedings is extended to the date of filing of the summons on 26 February 2015. 2. The costs of the applicant's notice of motion filed 26 February 2015 are costs in the cause.

Amendments 07 May 2015 - Amendment to [95]. The word "not" removed from the first line between "was" and "notified". DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 07 May 2015

At a glance

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Judgment (14 paragraphs)

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Cases Cited (2)

Cited By (17)