Bankstown City Council v Sfinarolakis

Land and Environment Court (NSW)|2011-10-07|Before: Pepper J, Pembroke J

The Court Cannot Grant Declaratory Relief by Consent Without Having Regard to the Evidence 1This is an application by consent of both parties seeking, first, a declaration that the first and second respondent, Ms Helen Sfinarolakis and Mr Keith Hadjigeorgiou, also known as Mr Keith Hatzis ("the respondents"), have carried out unlawful development on land known as Lot 4 in DP 615607, 792A Henry Lawson Drive, Picnic Point ("the land"), otherwise than in accordance with development consent DA 368/1999 dated 12 October 1999 ("the development consent") as modified by DA 36/1999/2 dated 21 December 2006 ("the modified development consent") contrary to the provisions of the Environmental Planning and Assessment Act 1979 ("the EPAA"). 2Second, relief is sought by way of an order that the respondents carry out works set out in paragraphs (a)-(g) of order 2 of the consent orders handed up to the Court. Finally, Bankstown City Council ("the council") seeks an order that the respondents pay the council's costs in the proceedings fixed in the sum of $7,000 by 21 October 2011. 3Because the council seeks declaratory relief in the proceedings the Court must have regard to the evidence relied upon by it in order to satisfy itself that it is appropriate to make the declaration. The Court cannot, absent this satisfaction, grant declaratory relief by consent ( Shoalhaven City Council v FB & FA McMahon Pty Ltd [2009] NSWLEC 122 at [2]. But see more recently the decision of Pembroke J in Ajkay v Hickey & Co Pty Ltd [2011] NSWSC 822 at [9]). 4This gives rise to a question as to whether or not declaratory relief can be granted absent a proper contradictor, and if not, whether a party that consents to a declaration being made against it can serve as a proper contradictor (see Australian Competition and Consumer Commission v MSY Technology Pty Ltd (No 2) [2011] FCA 382; (2011) 279 ALR 609 at [41]-[43]). Since these questions have not been raised by the parties and no argument has been heard in respect of them, it is neither necessary nor appropriate for the Court to determine them, however persuasive the reasoning in MSY may be. 5In support of its application for relief, the council relied upon an affidavit of Mr Glen Champion, sworn 16 August 2011, together with exhibits. Mr Champion is a building surveyor in the employment of the council.

A Dwelling is Built Other Than in Accordance With a Modified Development Consent 6The factual background to the proceedings was set out in points of claim filed by the council on 18 August 2011 and in the affidavit of Mr Champion. 7Ms Sfinarolakis is the owner of the land. Mr Hadjigeorgiou is the husband of Ms Sfinarolakis and holds an equitable interest in the land. 8The land was wholly within the 2(a) Residential zone under the provisions of the Bankstown Local Environmental Plan 2001 ("the LEP"), and therefore, development consent is needed in order to construct a building on the land. 9On 21 October 1999, the council granted the development consent to construct a two-storey dwelling on the land. The construction of the dwelling commenced in 2002. 10In 2004 and early 2005, the council received complaints that the building was not being constructed in accordance with the conditions and the approved plans of the development consent. 11On 16 May 2005, Ms Sfinarolakis submitted to the council a modification application pursuant to s 96 of the EPAA, seeking modification of the development consent with respect to building work on the lower ground floor, the ground floor, the first floor, the second floor, the third floor, the roof plan, and the garage. Ms Sfinarolakis also sought modification of the development consent in relation to the floor space ratio of the building on the land. 12On 22 December 2005, the council issued to Ms Sfinarolakis a notice of determination refusing the application to modify the development consent. 13On 7 June 2006, the respondents submitted a further application to modify the development consent under s 96 of the EPAA ("the second modification application"). Changes were again sought with respect to the construction of the lower ground floor, the ground floor, the first floor, the second floor, the third floor and the garage. 14On 21 December 2006, the council issued the respondents with a notice of determination by way of approval in part, and refusal in part, of the second modification application, resulting in the modified development consent. 15The modified development consent confirmed that the following modifications were approved: Lower Ground Floor Sub-floor area of the existing rear patio to be converted into a spa, toilet, shower and recreational gym. Ground Floor The internal spiral stair serving the family and games room is deleted. Doors between entry to stair and pantry deleted. Dining and living room windows in northern elevation replaced with glass doors. Kitchen window relocated further south and extended out from wall 500mm at an angle and increased in size to 1500mm wide. New pantry room added to dwelling in southern elevation 1.5m x 3.6m. New door to laundry for direct access to southern side passage. Sub-floor area beyond cellar created for services access door reduced to 1.5m to restrict access. Rear step down reduced to 1 step from main floor level. Terrace floor raised to patio level. The stair leading from the terrace patio to the rear yard have been reduced in width and extended to meet ground level. First Floor Internal spiral stair deleted. New 1200mm wide window in southern elevation of the games room. New window over northerly entry door. Sub-floor area beyond cinema for services with a proposed access door 1.5m high to restrict access and the windows to be replaces with louvred vents. Southern elevation windows of stairwell and landing proposed 1.5m high opaque film above floor level. Second Floor bedrooms and study level 4 skylights on the roof at rear deleted. Stairs and door to roof area created for maintenance. Bedroom 3 window on eastern elevation changed to glass door. Third Floor Master bedroom and balcony Layout of main bedroom varied, spa moved internally from veranda with dimensions varied to suit. Western wall of bedroom replaced with straight wall reducing internal depth of bedroom. Steps altered from bedroom to landing to comply with Building requirements. Chimney height above balcony reduced in height and increased in width. Roof Plan above living area Replace dome skylight with glazed conical or pyramidal skylight. Garage Plan A toilet and basin area created within the existing garage area. Access ladder adjacent to toilet for maintenance access to garage roof and skylight. Garage door varied in width with one double vehicle door with a new 820mm wide door created adjacent to roller door. A flat garage roof and parapet walls in place of skillion roof form. A conical skylight to the garage roof slab. Wall rebated in corner of garage reduced from 3m x 1.5m to 1.2m x 1.5m. 16However, the notice of determination dated 21 December 2006 stated that "all other requested modifications have not been approved by the Council and are subject to the amended conditions below". Those conditions, forming part of the modified development consent, were as follows:

Development shall take place generally in accordance with plans and details submitted in respect of Development Application 368/1999 dated 26/02/99 except where varied by conditions that follow and s 96(2) Modification application 368/99/3 submitted by K Hadjigeoriou and H Sfinarolakis accompanied by Plans 01, 02, 03, 05, 06 Spa plan 1 and affixed with council's approval stamp dated 12 December 2006 except where otherwise altered or amended by the conditions listed hereunder. Additional conditions 63 The access door to the roof be deleted and replaced with a fixed window and all associated works and landscaping located on the roof not be approved as part of the s 96 applications. 64 The windows in the southern elevation of the proposed spa room be deleted and replaced with masonry wall to match the existing building and comply with the Building Code of Australia. 65 The landing and stairs leading from the study leading to the roof be deleted and removed. 66 All windows facing the southern boundary be treated to provide obscure or opaque glass finished to a minimum height of 1.5m from floor level to the satisfaction of Council. Where an adhesive film is used it shall be maintained at all times. 67 The parapet wall of the garage roof shall be reduced to a maximum height of 200mm above the finished roof level along the eastern, western and southern elevations. 68 The roof above the living areas and games room shall not be used as a terrace or for any other purpose than access for maintenance. 69 The subfloor areas shall not be used for storage other than for plant and electrical services of the building. 70 The southern door to bedroom 1 be replaced with a fixed window. 71 The full-length window placed over the pantry area constructed without approval is to be removed and the opening is to be bricked up to match the existing wall. 72 The laundry door be provided with full height opaque glass or a similar film be provided to the door. 73 Submit to Council for approval details of the external finishes and colours of the external walls of the stairwell, which are to be of earthy natural tones. 74 The installation of external lighting is to comply with AS 4282-1997. 17However, the works were not carried out in accordance with the modified development consent. 18Accordingly, the council issued a series of orders to the respondents pursuant to s 121B of the EPAA requesting that the works be made to conform to the modified development consent. 19Inspections of the land were undertaken by the council, in particular by Mr Champion, to assess compliance with the orders that were issued by the council. 20Upon inspection, the council discovered that conformity with the modified development consent had not been achieved. 21Consequently, following several letters from the council to the respondents reminding them of their obligation to comply with the orders, proceedings were commenced in Class 4 of this Court's jurisdiction. Evidence of Mr Champion 22Turing briefly to the affidavit of Mr Champion, he deposed that, in effect, the matters alleged in the points of claim are factually correct. 23Mr Champion deposed to the fact that he personally undertook a number of inspections of the building on the land and that the unauthorised building works remained. For example, on 2 March 2010, he undertook an inspection of the building works from the adjoining land and he observed the following unauthorised building works: (a) An aluminium framed glass access door to the roof of the first floor located on the north-western wall of the study on the second floor was constructed rather than brickwork and a round fixed window. (b) Two aluminium framed glass windows were constructed on the southern elevation wall of the spa room on the lower ground floor of the building on the land rather than brickwork. (c) A full length aluminium framed glass door was constructed on the southern wall over the pantry on the ground floor of the building on the land rather than brickwork. (d) A metal framed glass door was constructed on the southern elevation wall of bedroom 1 on the second floor of the building on the land rather than brickwork and a fixed window 0.9m x 1.2m. (e) All remaining windows on the southern elevation wall of the building on the land were constructed of clear glass rather than opaque glass up to 1.5m above floor level. (f) The parapet wall on the roof of the garage of the building on the land was constructed at a height of 800mm above the finished roof level along the eastern, western and southern elevation walls rather than 200mm above the finished roof level. (g) The northern elevation wall of the void and study on the second floor of the building on the land was painted red in colour rather than silver grey in colour. (h) Two (2) air conditioning motor units 1.0m x 1.0m were attached to the southern elevation wall of the building on the land. 24With the exception of the two air conditioning motor units attached to the building, those unauthorised works are the works that form the basis of the consent orders handed up to the Court. 25On 21 October 2010, Mr Champion undertook another inspection of the building on the land from the adjoining land and again observed that the unauthorised works referred to above remained. A number of photographs were taken by him during this inspection and were exhibited to his affidavit. 26On 1 February 2011, Mr Champion had a telephone conversation with Mr Hadjigeorgiou to the effect that the respondents were now in occupation of the dwelling constructed on the land. This was so notwithstanding that no occupation certificate permitting the dwelling to be occupied had been issued by the council. 27In that conversation Mr Champion reminded Mr Hadjigeorgiou that there had been no completion of the outstanding works detailed in the latest order of the council and that had also been referred to in a letter from the council's lawyer to the respondents dated 29 July 2010. 28On 16 June 2011, Mr Champion again undertook an inspection of the building from the adjoining land and once again observed that the unauthorised building works referred to above remained on the land. 29The same result was achieved on 8 August 2011, namely, that pursuant to an inspection Mr Champion observed that unauthorised works remained on the land.

It is Appropriate to Grant the Relief Sought 30Having regard to the evidence contained in the affidavit of Mr Champion and having heard the submissions of the parties, the Court is satisfied that it is appropriate to grant the relief sought in the consent orders. This includes the making of the declaration contained in order 1 of those orders. 31Accordingly, the Court makes the following orders: (1) a declaration that the first respondent and second respondent has caused, permitted or suffered the erection of a building on the land known as Lot 4 in Deposited Plan 615607 (792A) Henry Lawson Drive, Picnic Point otherwise than in accordance with development consent DA 368/1999 dated 12 October 1999 as modified by DA 368/1999/2 dated 21 December 2006 contrary to the provisions of the EPAA; (2) an order that the first respondent and second respondent carry out or cause to be carried out the following works in respect of the building erected on the land by 6 December 2011: (a) remove the aluminium framed glass access door to the roof of the first floor located on the north-western wall of the study on the second floor and replace the access door with a window, fixed top and bottom to open; (b) remove the two (2) aluminium framed glass windows on the southern elevation wall of the spa room on the lower ground floor of the building on the land and replace those windows with brickwork; (c) remove the full length aluminium framed glass door on the southern elevation wall over the pantry on the ground floor of the building on the land and replace that window with brickwork; (d) remove the metal framed glass door on the southern elevation wall of bedroom 1 on the second floor of the building on the land and replace the door with a fixed window 0.9m x 2.1m, with 1.5m opaque from floor level; (e) remove from all remaining windows on the southern elevation wall of the building on the land all clear glass installed up to 1.5m above floor level and install in its place opaque glass; (f) demolish and remove that part of the parapet wall on the roof of the garage of the building on the land so that the parapet wall is a maximum height of 200mm above the finished roof level along the eastern and southern elevation walls and the western wall is to be a maximum height of 300mm above the finished roof level from floor level; and (g) paint the northern elevation wall of the void and study on the second floor of the building on the land in the colour of silver grey, being the same colour as the other external brick walls of the building on the land; and (3) an order that the first and second respondents pay the applicant's costs of the proceedings in the sum of $7,000 by 21 October 2011; and (4) the exhibits are to be returned.

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: 13 October 2011

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