Burwood Council v Dai

Category: Principal judgment

Parties: Burwood Council, Applicant (Applicant on the Notice of Motion)
Wu Long Dai, Respondent (Respondent on the Notice of Motion)

Representation: Counsel:
T Howard SC (Applicant)
No appearance (Respondent)
Solicitors:
Houston Dearn O’Connor Lawyers (Applicant)
No appearance (Respondent)

File Number(s): 2024/00063684

Publication restriction: Nil

JUDGMENT

Introduction

1. The substantive proceedings of this matter were commenced by a Class 4 Summons filed 19 February 2024 by which Burwood Council (the Applicant) sought a declaration that Wu Long Dai (the Respondent) had failed to comply with a Development Control Order (DCO) dated 29 March 2023, in breach of s 9.37 of the Environmental Planning and Assessment Act 1979 (NSW) (EP&A Act). A further order was sought (related to the DCO) that the Respondent demolish and remove a ‘shed-like’ structure (which I will refer to as the Building) located at the north-eastern boundary of Lot 1 DP 303218, namely 36 Oxford Street, Burwood (which I will refer to as the Property). The Respondent is the owner of the Property. That Order is sought under s 9.46(2)(b) of the EP&A Act, based on the Respondent’s failure to obtain a development consent for the erection and use of the Building, in breach of the former s 76A(1)(a) EP&A Act (in force at the time of construction) and its current equivalent, s 4.2(1) EP&A Act.

2. Antecedent to the substantive proceedings was a Notice of Motion filed 15 August 2024 to amend the relief claimed in the Summons and Points of Claim. The proposed Amended Summons sought the following relief (see the underlining for the amendments sought):

3. Declare that the Respondent has failed to comply with the Development Control Order No.3 given to him by the Applicant on 29 March 2023 (Ref No: 23/14204) which required the Respondent to demolish the building identified in the said Development Control Order located on land legally described as Lot 1 DP 303218 and known as 36 Oxford St, Burwood (Land).

4. Order that within 56 days of the date of these orders, the Respondent is to demolish the said building as required by the said Development Control Order and that he cause the demolition to be carried out by engagement of a qualified demolition contractor in accordance with the following orders.

5. Order that before the expiry of 28 days of the date of Orders being made by the Court the Respondent is to:

(a) Engage a suitably qualified person (“the suitably qualified person”) to:

(i) demolish the structure that is located at the north-eastern boundary of 36 Oxford Street Burwood, NSW, 2134 (“the land”); and, (ii) remove the roof sheeting and screening that is attached to the north-eastern boundary fence on the land; and,

(b) Ensure that all demolished items, debris and removed material being the result of the activities referred to at 3 (a) (i) and (ii) herein are taken from the land and lawfully deposited in an approved waste facility, and that receipts for tipping fees associated with the disposal of all items must be obtained.

4. Order that no later than 1 business day after the engagement of the suitably qualified person takes place, written notice of the engagement inclusive of the contact details of this person must be provided by the Respondent to the Applicant.

5. Order that within two days of the completion of the items referred to at Order 3 (b) herein, the Respondent is to provide to the Applicant all receipts for tipping fees for the disposal of demolished items, debris and removed material at an approved waste facility.

6. For the reasons that follow, on 5 May 2025 I made the orders sought above, and indicated that this judgment would soon follow.

Site details

History

4. The Property was transferred to the Respondent and Wen Jian Zhang as joint tenants on 28 June 2002: Exhibit A, p 345 and 348. At that time, the Property was zoned 2(C2) under the Burwood Planning Scheme Ordinance (BPSO). On 9 November 2012, the Burwood Local Environmental Plan 2012 (BLEP) came into force replacing the BPSO, and the land was re-zoned R1 (general residential). At the date of these proceedings, the Property consists of a two-storey terrace house, a car port, and the Building. The Building is a dwelling house, the erection and use of which required development consent by the Respondent under the BPSO (Exhibit B, Part IV Land Use Table, p 5) or subsequently the BLEP.

5. At all relevant times the terrace house on the Property, and the terrace house on the neighbouring property (34 Oxford Street Burwood) were heritage listed. They were listed as “heritage items” in schedule 9 in the 28 February 2002 version of the BPSO (the version in force when the Respondent purchased the land) and listed as “heritage items” in schedule 5, item number 187 of the BLEP.

The Building

6. The Building is located directly adjacent to the existing boundary fence with 34 Oxford Street, to the rear of the Property’s terrace house. It is a two-storey structure with a sub-floor area from the original pool deck. The sub-floor and ground floor are connected by an internal stair located at the southwest end of the structure, and then by a longer set of stairs connecting the ground level to an upper-level balcony. The Building is enclosed with roof sheeting and green mesh screening. It rises above the fence line and is visible along the boundary. It rests on dry stacked brick piers in the under-floor area, and is held up by wooden floor bearers and joists.

7. The Building is used for residential type purposes: Exhibit A, p 208.

Background

First Development Control Order

8. On 26 April 2020, the Applicant received a complaint about the Building from Mr Mark Romanos, the owner of 34 Oxford Street, Burwood. Mr Romanos notified the Applicant (among other things) of what he suspected to be unauthorised building extensions which he described as dangerous, and an encroachment on his property. After an inspection, the Applicant contacted the Respondent on 29 September 2020, and directed that he “demolish the dilapidated structure on the north eastern boundary” and “remove the roof sheeting attached to the north eastern boundary fence,” which was causing surface water to spill into the neighbouring property: Exhibit A, p 78. These works were to be undertaken by 12 October 2020. No works were done.

9. On 16 November 2020, the Applicant issued a DCO to the Respondent (the first DCO) with a compliance deadline of 28 days from the date of the first DCO (by 14 December 2020): Exhibit A p 47 at [20]. The terms of the first DCO were as follows:

(a) demolish the dilapidated structure on the north eastern boundary; (b) remove the roof sheeting and screening attached to the north eastern boundary fence causing hard surface water to spill over onto the neighbouring property.

10. By 17 March 2021, there had been no compliance with the first DCO. An extension was granted until 11 May 2021, but by 6 July 2021, there had still been no compliance: Exhibit A pp 47-48 at [23] to [24].

11. On 26 November 2021, the Applicant commenced Class 4 proceedings against the Respondent involving largely the same matters as the current proceedings: Exhibit A p 26 at [26]. The proceedings were discontinued.

12. On 17 August 2022, the first DCO was revoked by the Applicant, by a notice indicating that a fresh notice of intention to give a DCO would be given in “the very near future”: Exhibit A p 150.

Second Development Control Order

13. On 14 February 2023, a fresh notice of intention to give a DCO was given to the Respondent: Exhibit A, p 153.

14. On 29 March 2023, the Applicant gave the DCO (No. 23/14204) the subject of these proceedings to the Respondent, ordering the demolition of the Building within 28 days from the date of the Order: Exhibit A, p 159. The Respondent did not comply with the orders.

15. On 5 June 2024, the Council Investigations Officer, Andrew McClure, executed a search warrant on the land, and the Building was inspected.

Nature of these proceedings

16. On 19 February 2024, these proceedings were initiated by Summons seeking a declaration that the Respondent had failed to comply with the DCO, and an order to demolish the Building, remove the attached roof sheeting and screening, and remove debris from the land associated with the aforementioned activities.

17. On 27 February 2024, the Respondent contacted the Registry requesting to postpone the matter to “early June” as he intended to travel overseas from 7 April to 20 May 2024. The Applicant emailed the Registry on 1 March 2024 agreeing to stand over the matter: Affidavit of Steven Elias Shneider dated 30 April 2025, Annexure A.

18. When the matter came before Justice Pain on 21 June 2024 for Directions, the Respondent did not appear. The matter was then listed for further Directions on 9 August 2024. The Applicant advised the Respondent of this date on 21 June 2024 by email and on 3 July 2024 by post.

19. On 8 August 2024, the listing date of 9 August 2024 was vacated on request of the Respondent, and the matter was relisted on 30 August 2024.

20. Prior to this, on 15 August 2024, the Notice of Motion was filed to amend the Summons and Points of Claim as described above.

21. On 30 August 2024, the Notice of Motion and substantive proceedings (referred to together as the matter) were listed for further directions on 13 September 2024, and a note was added by Justice Pain that the matter was stood over so the Applicant could advise the Respondent that they were seeking a hearing date, and to give the Respondent an opportunity to respond.

22. On the 13 September 2024, the Respondent did not appear. The matter was listed for hearing on 10 and 11 December 2024. The Applicant notified the Respondent by a letter dated 17 September 2024 of the hearing date, time, and location.

December Hearing

23. The hearing on 10 December 2024 came before Justice Robson. The Respondent was not present in Court when the matter was called. Justice Robson was then notified that the Respondent had had a medical incident on entering the Court lobby. He fainted and was removed in an ambulance. No further details are known.

24. Justice Robson stood over the matter until it was relisted at the request of the parties.

25. Between 10 December 2024 and 9 January 2025, the Applicant contacted the Respondent by email and post seeking his availability for a hearing, to no reply: Affidavit of Steven Elias Shneider dated 30 April 2025, Annexure E.

26. On 14 February 2025, the matter was listed for hearing on 5 May 2025. A Mandarin interpreter was also arranged by order in Chambers to aid the Respondent in Court during the proceedings.

Non-Attendance

27. On 26 April 2025, the Court received an email from the Respondent indicating that he was “sick” and would be “unable to attend the court hearing to be held on May 5, 2025.” Attached to the email was a “medical certificate” dated 4 March 2025 from Dr Shi of the Burwood Family Medical Centre which states as follows:

“This is to certify that Mr Wu Long Dai has multiple medical conditions and is having medical treatment and needs rest from 4/3/2025 to 4/6/2025”.

28. On 29 April 2025, the solicitor for the Applicant sent an email to the Registrar indicating that (amongst other things) his firm had received a phone call on behalf of the Respondent indicating that the Respondent was “ill and that he will not be attending court on 5 May 2025”.

29. On the same day, I instructed my Associate to send an email to the Applicant’s solicitor (copied in to the Respondent) regarding the Respondent’s 26 April 2025 email to the Court and the medical certificate, and sought the Applicant’s views concerning it, and whether the Applicant sought to have the hearing proceed as listed on 5 May 2025.

30. On 30 April 2025, the solicitor for the Applicant sent a further email to my Chambers (copied in to the Respondent) indicating that the Applicant opposed further adjournment of the matter, and outlining the reasons why; notably, the prejudice caused by the expense of paying an expert and Counsel to make further appearances, the difficulty of coordinating dates with the Court and witnesses, and a history of non-appearances from the Respondent.

31. I determined that this matter would remain listed on 5 May 2025, and that the hearing was not vacated as a result of the 26 April 2025 email and the medical certificate sent to the Court by the Respondent. I did not consider this information sufficient to warrant vacating the hearing. I also did not consider the medical certificate to be in admissible form, or to provide sufficient particulars or detail to warrant vacating the hearing.

32. I instructed my Associate to send an email dated 30 April 2025 to the Applicant solicitor and to the Respondent which relevantly stated:

I have been requested by Justice Beasley to notify the parties that this matter remains listed before him on 5 May 2025, and that the hearing has not been vacated as a result of the 26 April 2025 email and the medical certificate sent to the Court by the Respondent. His Honour does not consider that this information is sufficient to warrant vacating the hearing. The parties are advised that at present the matter remains listed, and that the hearing will proceed on 5 May 2025. Any further application made by the Respondent (or on the Respondent’s behalf) to vacate the hearing on 5 May 2025 and adjourn it to a later date will be considered by his Honour, but any such application will need to at least be supported by additional information or evidence beyond that provided by the Respondent to the court on 26 April 2025.

33. The Respondent did not appear when the matter was called on for hearing in Court on 5 May 2025. The hearing proceeded in his absence.

Notice of Motion

34. At the commencement of the hearing, Mr Howard SC appeared for the Applicant, and moved on the motion dated 15 August 2024, seeking leave to amend the Summons and Points of Claim in the manner outlined above in [2]. The motion was supported by an affidavit of the Applicant’s solicitor Steven Elias Shneider, dated 15 August 2024.

35. I was satisfied that it was appropriate to grant leave to make the amendments sought, which add clarity but not new claims.

Applicant’s Evidence

36. The Applicant tendered an expert report of Mr Paul Bezkorovainy dated 25 June 2024: Exhibit A pp 203-416. Mr Bezkorovainy is a structural engineer. The opinions he expresses in his report are based on the following:

(a) a site visit of the Property where he inspected the external parts of the Building on 23 May 2024; (b) a site visit of the Property on 5 June 2024 when he was accompanied by police officers and was able to make internal observations of the Building; (c) examination of various photographs as well as video footage of the Building.

37. Mr Bezkorovainy was also called to give oral evidence to clarify aspects of his report.

38. Mr Bezkorovainy noted three different stages of construction of the Building. Stage 1 refers to an original pool deck, railing structure and timber paling fence that was built in about 1983. Stage 2 relates to an above pool deck roof structure and an upper roof area over part of the Building, which would appear to have been constructed prior to the Respondent purchasing the Property in 2002.

39. Stage 3 relates to construction after the purchase of the property by the Respondent (see also affidavit of Andrew McClure dated 1 July 2024 referred to below). The Stage 3 structure comprises:

40. an infill floor structure where the pool was originally shown to have existed;

41. external infill walls, cladding elements and windows in spaces between the Stage 2 roof posts, pool deck and roof structure;

42. an upper roof structure over the balcony area designated as “Bal” in figure 1 of his report (Exhibit A p 208) which is a survey of the Property dated May 2002:

43. internal infill walls to the east of the original brick dwelling;

44. internal doors, mouldings, door and wall linings;

45. cantilevering metal roof sheeting from the eastern perimeter wall;

46. mezzanine between the original pool deck area and the original brick dwelling; and

47. recently added dry stacked (not bonded with mortar) brick piers under the original pool deck and pool infill areas.

48. In Mr Bezkorovainy’s opinion, the Stage 3 construction is characterised by:

(a) a lack of tradesman like workmanship; (b) use of inappropriate non-structurally graded materials that are not fit for purpose; (c) use of non-structural fixings not suited to external or internal use; (d) grossly undersized timbers; (e) severe dilapidation; (f) excessively noticeable deflections; (g) excessively noticeable out-of-plumb walls, floors, floor linings, and ceilings; (h) bowed, damaged, broken, split and delaminated timbers and surfaces; (i) no flashing, insulation, door or window jambs, trimmers or lintels; (j) no drainage; and (k) water damage.

41. Each of the matters described above is expanded upon in more detail in Mr Bezkorovainy’s report in reference to various photographs. His conclusion based on his site inspections and observations made of the photographs is that:

“All observed Stage 3 “structure”, the infill walls, infill floor over the old pool location, ceilings, roof over the Upper Balcony, timbers to the face of the southern Verandah wall, have been very poorly constructed using a miscellaneous assortment of materials not fit for purpose, out-of-plumb, and with a total lack of workmanship. Generally, the Stage 3 structure does not comply with any accepted building code of practise [sic], is in a highly dilapidated state, and poses serious risk to the public, the land, and neighbouring land”: Exhibit A p 228.

42. In his oral evidence, Mr Bezkorovainy stated that parts of the structure of the Building currently posed an imminent danger or real risk of collapse, that is an immediate and current risk.

43. An affidavit of Mark Romanos dated 4 July 2024 was read, outlining the impacts of the Building on his neighbouring property. These include:

(a) part of the structure of the Building protrudes over the common boundary onto Mr Romanos’ land; (b) there is no guttering on the Building, and hence water flows directly from it onto his property; (c) there are large gaps in the existing fence from rotted palings, which includes exposed asbestos; and (d) there are live electricity cables exposed and pressed against his fence.

44. Mr Romanos confirmed in his oral evidence that there had been no changes made to the Building since the time that the second DCO was given to the Respondent.

45. The following further affidavits were read by the Applicant:

(a) Affidavit of Nelson Silva dated 10 April 2024. Mr Silva is a building surveyor employed by the Council. His affidavit contains opinion evidence concerning, in general, the dilapidated nature of the Building based on an inspection of the Property he made on 21 September 2022. In his view, the Building “is or is likely to become a danger to the public”, and he comments in general on its dilapidated state, and the poor manner of its construction. He also considers that the Building presents a fire risk, including a risk to Mr Romanos’ property. He is also of the view that the nature of the Building’s construction and the materials used is “prejudicial to persons or property in the neighbourhood” which I take to mean, among other things, that it is a danger to any person who enters the Building or might be nearby to it. He also gives evidence of non-compliance with various Australian standards and the Australian Building Codes: see Exhibit A pp 2-9, particularly at [20]. Finally, he expresses the opinion that safety reasons require the demolition of the Building. (b) Affidavit of Tai Trinh dated 2 July 2024. This affidavit relates to service of the DCO, which is at pp 22-25 of Exhibit A. The DCO seeks an order for demolition of the Building, and provides 10 reasons for that order, including reasons relating to safety of occupants of the Building, as well as the occupants of Mr Romanos’ property (reasons 7 and 8), and relates to the unlawfulness of the erection and use of the Building because of the failure to obtain development consent (reason 9). (c) Affidavit of Oliver Ellis dated 1 July 2024. This affidavit also relates to service of the DCO. (d) Affidavit of Andrew McClure dated 1 July 2024. Mr McClure is a community safety officer employed by the Council. In his affidavit, Mr McClure attests to observations made on site visits to the Property, and also to Mr Romanos’ adjoining property. His observations relate to the dilapidated state of the Building consistent with the opinions expressed by Mr Bezkorovainy. Mr McClure makes reference to a sales brochure relating to the Property for an auction on 4 May 2002, and to a survey indicating what was on the Property at the time of the 4 May 2002 auction: see Exhibit A pp 128-130. On this evidence I am satisfied that as at the time the Respondent purchased the Property in 2002 (the transfer was completed on 28 June 2002) what is described as the Stage 3 structure referred to by Mr Bezkorovainy in his expert report had not yet been built. The relevant planning control at the time was the BPSO, in force as at 28 February 2002 (Exhibit B). In 2002, the property was zoned Residential 2(C2) under the BPSO. Development such as a dwelling house could only be carried out with consent. On 9 November 2012, the BLEP came into force. Since that date, the land has been zoned R1 (general residential), and again consent is required for the carrying out of development for the erection or use of a dwelling house.

Resolution

46. Based on the evidence before me, I am satisfied that the Building is a development in relation to which development consent was required pursuant to the BPSO (and if relevant the BLEP). I am satisfied no consent was sought or obtained, and that the erection of the building (or at least those parts of it that are described as Stage 3 in Mr Bezkorovainy’s expert report), and its use as a dwelling house, is therefore the carrying out of development in breach of s 4.2(1) of the EP&A Act.

47. I am also satisfied that there has been no compliance with the second DCO in breach of s 9.37(1) of the EP&A Act. There is no evidence before me which indicates that this DCO is anything other than a valid order pursuant to s 9.35 of the EP&A Act.

48. As to the Building itself, I am satisfied that, for the reasons outlined by Mr Bezkorovainy in his expert report and oral evidence, as well as by Mr Silva and Mr McClure in their affidavits, the method of construction, the materials used, and its condition represents a serious threat to the safety of the occupants of the Respondent’s Property, members of the public, and of the occupants of the adjoining land owned by Mr Romanos.

Orders – Discretion

49. I am satisfied that I should make the declaration sought in order 1 of the Amended Summons, as the Respondent has failed to comply with the DCO.

50. The demolition order which is sought pursuant to s 9.46(2)(b) of the EP&A Act (and is based on the breaches of the Act referred to at [46] and [47] above), requires the exercise of discretion. A number of guidelines for the exercise of the Court’s discretion were outlined by the Court of Appeal in Warringah Shire Council v Sedevcic (1987) 10 NSWLR 335, especially at 339-341 per Kirby P (see also Tynan and O**rs v Meharg and Newcastle City Council (1998) 101 LGERA 255 at 259 per Stein JA). Discretionary considerations include the following:

(a) whether the breach of the EP&A Act is merely “technical”; (b) whether relief is sought against a “static” development (for example, the erection of a building) which can only be remedied at great cost and inconvenience, or where relief is aimed at conduct which can be easily modified to bring it within compliance; and (c) whether the breach had a beneficial effect rather than an adverse effect on the environment or amenity of the locality.

51. As was brought to my attention by Mr Howard SC, I am conscious also here that an order for demolition might require the Respondent (and other occupants of the Property) to vacate it temporarily while the demolition works are carried out. Mr Bezkorovainy did not feel qualified to express an expert opinion on this matter, and so the position is not clear.

52. If a demolition order was made, it might mean that the Property has to be temporarily vacated. I note clause 2 of Part 4 of Schedule 5 of the EP&A Act, which relates to what the Applicant must do if the DCO is likely to make a resident homeless. While this relates to the effect of a DCO, and what an enforcement authority like the Applicant must do, I consider that this issue generally would be a relevant one for the Court to consider in the exercise of its discretion. However, at present it is unclear whether any demolition works would require the Respondent and other occupants of the Property to temporarily vacate it, and there is no evidence before me concerning what this might mean for the Respondent’s (and other occupants’) living arrangements.

53. This matter involves serious breaches of the EP&A Act – substantial building works have been carried out without the necessary consent, and a DCO relating to that, and safety issues has not been complied with. They are not mere “technical” breaches. Moreover, those safety risks are very serious, and cannot be ignored. They are in my view grave enough, and immediately urgent enough, that I am convinced I should exercise my discretion by granting the demolition order sought by the Council. As to the matters raised at [52] above, I have provided for liberty to apply (see orders 7 and 8 below).

Orders made

54. On 5 May 2025 I made the following orders:

55. Declare that the Respondent has failed to comply with the Development Control Order No.3 given to him by the Applicant on 29 March 2023 (Ref No: 23/14204) which required the Respondent to demolish the building identified in the said Development Control Order located on land legally described as Lot 1 DP 303218 and known as 36 Oxford St, Burwood (Land).

56. Order that within 56 days of the date of these orders, the Respondent is to demolish the said building as required by the said Development Control Order and that he cause the demolition to be carried out by engagement of a qualified demolition contractor in accordance with the following orders.

57. Order that before the expiry of 28 days of the date of Orders being made by the Court the Respondent is to:

(a) Engage a suitably qualified person (“the suitably qualified person”) to:

(i) demolish the structure that is located at the north-eastern boundary of 36 Oxford Street Burwood, NSW, 2134 (“the land”); and, (ii) remove the roof sheeting and screening that is attached to the north-eastern boundary fence on the land; and,

(b) Ensure that all demolished items, debris and removed material being the result of the activities referred to at 3 (a) (i) and (ii) herein are taken from the land and lawfully deposited in an approved waste facility, and that receipts for tipping fees associated with the disposal of all items must be obtained.

4. Order that no later than 1 business day after the engagement of the suitably qualified person takes place, written notice of the engagement inclusive of the contact details of this person must be provided by the Respondent to the Applicant.
5. Order that within two days of the completion of the items referred to at Order 3 (b) herein, the Respondent is to provide to the Applicant all receipts for tipping fees for the disposal of demolished items, debris and removed material at an approved waste facility.
6. The Respondent is to pay the Applicant’s costs of these proceedings as agreed or assessed.
7. The parties are granted liberty to apply for the working through of the orders.
8. Without limiting the generality of order 7 above, the parties are granted liberty to apply for the working through of the orders, if the carrying out of the orders would require the Respondent (or other occupants of the property known as 36 Oxford Street, Burwood) to find temporary alternative residential accommodation.

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