Campbelltown City Council v Ahmed

Land and Environment Court (NSW)|2023-11-20|Before: Duggan J, Moore J

Nature of proceedings

Campbelltown City Council (the Council) commenced these proceedings by way of Summons filed 21 October 2022 against Michael Kustreba, Davina Kustreba, PPG Investments Pty Ltd (the former First, Second and Third Respondents), A N Hussain Ahmed (the First Respondent) and Professional Certification Group Pty Ltd (the Second Respondent).
By orders made by me on 25 July 2023, the former First, Second and Third Respondents were removed from the proceedings.
By its Amended Summons filed 13 February 2023, the Council sought the following relief in relation to the issuing of a complying development certificate (the CDC) for the proposed construction of two group homes and an attached garage: 1. A declaration that Complying Development Certificate (Ref 00092858), issued by the Second Respondent to Michael Kustreba, Davina Kustreba and PPG Investments Pty Ltd (former First, Second and Third Respondents) on 21 July 2022 (the Approval), for the new construction of two group homes and new construction of an attached garage on land identified as Lot 305 in Deposited Plan 746116 otherwise known as 20 Heritage Way, Glen Alpine in the State of New South Wales 2560 (the Land), is invalid and of no effect. 2. An order that the First and Second Respondents, and any other persons that would otherwise be authorised to act on the Approval, be permanently restrained from carrying out any works under or in accordance with the Approval.
The hearing commenced on 25 July 2023 and was adjourned part heard. I made orders referring the Council to the Registrar to obtain a further hearing date.
During the second day of the hearing on 20 November 2023, the Council advised it did not press the grounds in its Amended Summons which related to the Building Code of Australia nor cl 21 of the State Environmental Planning Policy (Housing) 2021 (the Housing SEPP), being fill of sloping sites. I subsequently granted leave to the Council to file a Further Amended Summons to reflect these changes.

Service on the First Respondent

I am satisfied on the evidence before me that the First Respondent was made aware of the application and the details of the hearing. The relevant evidence is set out below.
On 9 December 2022, I made orders that the Council may effect substituted service on the First Respondent in relation to the Summons filed 21 October 2022 to the following addresses: 1. 20 Heritage Way, Glen Alpine (the Glen Alpine address); and 2. 155 Dumaresq Street, Campbelltown (the Campbelltown address); (together the substituted service addresses).
On 20 December 2022, a copy of the 9 December 2022 orders and the Summons filed 21 October 2022 were served on the First Respondent by a process server who affixed a copy of the documents to the front door of the Glen Alpine address and placed the documents in the letterbox of the Campbelltown address.
On 7 February 2023, Moore J made an order that the Council may effect substituted service on the First Respondent by handing any document relating to these proceedings to any person over the age of 16, affixing the document onto the front door or by leaving the document in the mailbox of the substituted service addresses.
Pursuant to the above order, the following relevant documents were served on the First Respondent: 1. 10 February 2023 - the 7 February 2023 orders; 2. 17 February 2023 - the Amended Summons filed 13 February 2023 (removing the former First, Second and Third Respondents); 3. 14 June 2023 - orders fixing the proceedings for hearing; and 4. 8 August 2023 - orders fixing the proceedings for hearing part heard.
On the day of the hearing, the matter was called including being called three times in the precinct of the Court. There was no appearance by the First Respondent. I proceeded to hear the matter ex parte pursuant to r 29.7(2)(a) of the Uniform Civil Procedure Rules 2005 (NSW).

Facts

The First Respondent is the registered proprietor of land subject of the CDC identified as Lot 305 in DP 746116, otherwise known as 20 Heritage Way, Glen Alpine NSW (the Land).
The Second Respondent is a registered certifier for the purpose of Div 4.5 of the Environmental Planning and Assessment Act 1979 (NSW) (EP&A Act).
The former First, Second and Third Respondents are the applicants for the CDC (hereafter referred to as the Applicants for the CDC).
The CDC related to the construction of two group homes and an attached garage on the land.
The Land has a single frontage onto Heritage Way, Glen Alpine and currently has erected upon it a single dwelling. The dwelling was approved in 1987 and constructed in 1988.
The Land is located within the R2 Low Density Residential zone (R2 Zone) under the Campbelltown Local Environmental Plan 2015 (the LEP).

The CDC

In or around 2022, the Applicants for the CDC lodged an application for the construction of two group homes and an attached garaged on the Land with the Second Respondent.
On 21 July 2022, an employee of the Second Respondent issued on their behalf the CDC.
The CDC contains the following certification: I certify that the proposed development is complying development, and if carried out as specified in this certificate will comply with all development standards applicable to the development and with the requirements prescribed by the Environmental Planning & Assessment Regulation 2021 concerning the issue of this certificate. The code applicable to this CDC is: Complying Development Code: State Environmental Planning Policy (Housing) 2021.

Requirements for complying development

In order for development to be characterised as complying development for a group home it must meet the characteristics identified in cl 64 of the Housing SEPP which provides: 64 Complying development (1) Development for the purposes of a group home is complying development if the development- (a) does not result in more than 10 bedrooms being within 1 or more group homes on a site, and (b) satisfies the requirements for complying development specified in State Environmental Planning Policy (Exempt and Complying Development Codes) 2008, clauses 1.18 and 1.19, other than clauses 1.18(1)(h) and 1.19(1)(b), and (c) is not in a draft heritage conservation area, and (d) meets the development standards set out in Schedule 2.

Issues for determination

A determination of these proceedings requires the consideration of the following questions: 1. Whether the development demonstrates compliance with cll 8 and 20 of Sch 2 in the Housing SEPP; 2. Whether the development can be considered complying development for the purpose of cl 64(1)(d) of the Housing SEPP; and 3. Whether written consent was obtained in accordance with cl 1.18 of the State Environmental Planning Policy (Exempt & Complying Development Codes) 2008 (the Code SEPP) and s 138 of the Roads Act 1993 (NSW) (Roads Act).

Whether the development demonstrates compliance with cll 8 and 20 of Sch 2 in the Housing SEPP

The Council contends that the approval did not comply with the provisions of Sch 2 in the Housing SEPP in respect of building configuration and location of fill and therefore did not meet the requirements of cl 64 of the Housing SEPP.

Building articulation

As to the issues of building articulation cl 8 of Sch 2 in the Housing SEPP provides: 8 Building articulation A group home, other than a group home on a battle-axe lot, must have - (a) a front door and a window to a habitable room in a building wall that faces, and is visible from, any primary road, and (b) a window to a habitable room in a building wall that faces, and is visible from, any parallel road, and (c) a window, with an area of at least 1m2, to a habitable room in a building wall that faces, and is visible from, any secondary road.
The Council relied upon the evidence of Mr Jeffrey Burton, Council's Senior Strategic Planner, sworn 16 November 2023 as to this issue who deposed at pars 24 to 29 that: 24. The group home the subject of the CDC comprises of two buildings, marked as 'Home A' and 'Home B', each being capable of being occupied or used as a separate domicile, and therefore are individually defined as a 'group home' having regard to the respective definitions of a 'group home', 'permanent group home' and 'dwelling', provided under the LEP as below: group home means a permanent group home or a transitional group home. Note - Group homes are a type of residential accommodation - see the definition of that term in this Dictionary. group home (permanent) or permanent group home means a dwelling - (a) that is occupied by persons as a single household with or without paid supervision or care and whether or not those persons are related or payment for board and lodging is required, and (b) that is used to provide permanent household accommodation for people with a disability or people who are socially disadvantaged, but does not include development to which State Environmental Planning Policy (Housing) 2021, Chapter 3, Part 5 applies. Note - Permanent group homes are a type of group home - see the definition of that term in this Dictionary. dwelling means a room or suite of rooms occupied or used or so constructed or adapted as to be capable of being occupied or used as a separate domicile. 25. Pursuant to Clause 8(a) Schedule 2 of the Housing SEPP, to be complying development for the purposes of that policy, both 'Home A' and 'Home B' each being defined as a group home not on a battle-axe lot must have a front door and a window to a habitable room in a building wall that faces, and is visible from, any primary road. The primary road in this instance is Heritage Way. 26. Given the location of 'Home B' at the rear of the site behind 'Home A', the line of sight from the primary road (Heritage Way) to 'Home B' is obscured by 'Home A'. It is my professional opinion that 'Home B' does not have a front door and a window to a habitable room in a building wall that faces, and is visible from Heritage Way, as required by Clause 8(a) Schedule 2 of the Housing SEPP. I have formed this opinion as I have conducted analyses of the CDC plans, which is annexed hereto and marked "D" and "E". 27. The analysis contained at Annexure 'D' provides a 2-dimensional examination of the CDC plans to demonstrate that the view line from Heritage Way across the horizontal plane to 'Home B' is obstructed by 'Home A'. This means that the front door and a window to a habitable room of 'Home B' is obstructed so that it is not visible from the primary road (as required by Clause 8(a) Schedule 2 of the Housing SEPP). 28. The analysis marked "E" provides an examination of the 3rd dimension (height) sight line from the Heritage Way footpath in front of the Land to 'Home B' to demonstrate that view from the primary road (footpath) to the front wall of 'Home B' is obstructed by 'Home A'. This means that the front door and a window to a habitable room of 'Home B' is obstructed so that it is not visible from the primary road (as required by Clause 8(a) Schedule 2 of the Housing SEPP). This analysis demonstrates that a view line from the public footpath in front of the Land would need to be taken at a height of 14.4 metres above existing ground levels to see over the roof of 'Home A' to the top of the front wall of 'Home B', having regard to the following: (a) 'Home A' and 'Home B' are proposed to be built to the same finished floor level (106000) and ceiling level (108750) - refer Drawing DW 08. (b) 'Home A' and 'Home B' have equivalent roof heights (ridge height 110800) and roof pitches (16 degrees) - refer DW 07 and DW 12 respectively. (c) The front wall of 'Home B' has a top height level of 108750. (d) The existing level of the public footpath in front of the lot is conservatively calculated at 106.0, given that the respective finished surface levels of the footpath are between 104.75 (northern boundary extrapolated) and 106.6 (southern boundary extrapolated) - refer DW 03. (e) The existing public footpath (mid-line) is located approximately 20m from the front patio of 'Home A' - scaled measurement from DW 03. 29. It is therefore my professional opinion, based on the analyses (detailed at Annexures 'D' and 'E') undertaken by me of the Housing SEPP and definitions of 'group home', 'permanent group home' and 'dwelling' under the LEP, that the proposed 'Home B' is singularly defined as a 'group home' and does not comply with Clause 8(a) Schedule 2 of the Housing SEPP with respect to the requirement for a front door and a window to a habitable room in a building wall that faces, and is visible from, any primary road.
The Council submitted that as the Land upon which the development was proposed was not a battle axe lot it must satisfy the development standard in cl 8 of Sch 2 in the Housing SEPP. By design, the CDC approves two separate group homes on the Land. The primary road to which the group home must address was the road known as Heritage Way, there being no other road which could fall for consideration in the application of that clause.
By virtue of the manner in which the two buildings have been designed only the building at the front of the property (Building A) provided the necessary building articulation. Whilst Building B has a front door and windows that are located on the façade closest to the street they are not visible from the street and therefore do not meet the development standard in Sch 2 in the Housing SEPP.

Fill

As to the issue of fill, cl 20 of Sch 2 in the Housing SEPP provides: 20 Earthworks, retaining walls and structural support (1) Excavation must - (a) not be deeper than a maximum depth measured from ground level (existing) of - (i) if located within 1m of a boundary - 1m, or (ii) if located more than 1m, but not more than 1.5m, from a boundary - 2m, or (iii) if located more than 1.5m from a boundary - 3m, and (b) if the land is identified as Class 3 or 4 on an Acid Sulfate Soils Map or is within 40m of a waterbody (natural) - be no more than 1m below ground level (existing). (2) Fill must - (a) not have a height of more than 1m above ground level (existing), and (b) be contained in accordance with subsections (4) and (5) by - (i) a retaining wall or other form of structural support that does not extend more than 1.5m from an external wall of the dwelling, or (ii) an unprotected sloping embankment or batter - (A) that does not extend from the group home by more than 3m, and (B) with a toe more than 1m from a side or rear boundary.
The Council relied upon the evidence of Mr Burton sworn 16 November 2023 that deposed at pars 33 and 34 (figures omitted): 33. The CDC proposes a boundary retaining wall and corresponding fill adjacent to 'Home B' for the full width of the rear boundary and partial side boundaries. For clarity, I have extracted Drawing D03 (see Figure 1 below) and "highlighted" in blue the retaining wall detail shown. This is the only plan in the CDC plans with a "retaining wall" marked. 34. As shown in Figure 1, Drawing DW 03 shows proposed fill to the rear boundary contained by a proposed boundary retaining wall extending more than 6.1 metres from the rear external wall of 'Home B'….
The Council submitted that as deposed by Mr Burton, the Court would accept that the details of proposed cut/fill on the approved site plan (DW 03) shows proposed fill across the entire width of the rear (northern) portion of the allotment, extending to the rear boundary and adjacent side boundaries. On that basis, the fill is shown to be more than 6.1m from the rear wall of the building far exceeding the 1.5m distance limitation cl 20(2)(b)(i) of Sch 2 in the Housing SEPP.

Findings on building articulation and fill and whether the development can be considered complying development for the purpose of cl 64(1)(d) of the Housing SEPP

Based upon the evidence of Mr Burton I accept the submissions of the Council outlined above. The building identified as Building B is incapable of having the relevant doors and windows viewed from the primary road as it is set behind Building A in its entirety. The site, not being a battle axe allotment must so comply and its failure to do so renders it incapable of being characterised as complying development as provided for in cl 64 of the Housing SEPP.
Based upon the evidence of Mr Burton and the submissions of the Council, which I accept, the proposed fill as approved in the CDC is in excess of the 1.5m distance as prescribed by cl 20(2)(b)(i) of the Housing SEPP and that such exceedance of the fill limitation renders it incapable of being characterised as complying development as provided for in cl 64 of the Housing SEPP.

Whether written consent was obtained in accordance with cl 1.18 of the Code SEPP and s 138 of the Roads Act

The Council contended that the CDC proposed works within the road reserve and that such works had not been the subject of a necessary approval under the Roads Act.
Clause 1.18(e) of the Code SEPP provides: 1.18 General requirements for complying development under this Policy (1) To be complying development for the purposes of this Policy, the development must - … (e) before the complying development certificate is issued, have written consent from the relevant roads authority (if required under section 138 of the Roads Act 1993) for the building of any kerb, crossover or driveway, and
Section 138 of the Roads Act provides: 138 Works and structures (1) A person must not - (a) erect a structure or carry out a work in, on or over a public road, or (b) dig up or disturb the surface of a public road, or (c) remove or interfere with a structure, work or tree on a public road, or (d) pump water into a public road from any land adjoining the road, or (e) connect a road (whether public or private) to a classified road, otherwise than with the consent of the appropriate roads authority. Maximum penalty - 10 penalty units.
The Council relied upon the affidavit evidence of Mr Burton sworn 16 November 2023.
As to this issue Mr Burton deposed at pars 38 to 43 (figures omitted): 38. The CDC (refer plans DW 03, DW 11) proposes a new double garage and associated modified driveway arrangements to the street, including cut to existing ground levels between the proposed garage vehicular entry and the front property boundary (see Figure 2 below). 39. A modified vehicular crossing over the road reserve between the front boundary of the subject property and the kerb is required to be built in accordance with council's relevant driveway crossover specifications to properly marry with the new vehicular driveway proposed under the subject CDC. 40. The CDC documentation provides that Council approval is required for the construction of a proposed concrete driveway: a) refer CDC Drawing DW 05 (Ground Floor Plan) which provides the following notation: "DRIVEWAY AS PER COUNCIL AND LHA REQUIREMENTS" b) refer CDC Drawing DW 12 (Concept Stormwater Design and Roof Plan) which provides the following notation: "2. PROPOSED CONCRETE DRIVEWAY TO BE CONSTRUCTED IN ACCORDANCE WITH PLANS. SPECIFICATION. AND LEVELS ISSUED SEPERATELY [sic] BY COUNCIL." 41. Written consent from the Council, being the relevant roads authority, and as required under section 138 of the Roads Act, was not obtained prior to the CDC being issued. 42. The CDC therefore fails to comply with clause 1.18(e) of the Codes SEPP, and as such cannot be complying development for the purpose of a group home under clause 64(1)(b) of the Housing SEPP. 43. Further, it is my professional opinion that details of the proposed driveway crossover works in the CDC are inaccurate and unclear. The driveway gradient plan (Drawing DW 02) shows a distance of 3.4 metres between the front boundary and the kerb (see Figure 3 below). The actual distance as scaled from the CDC plans measures approximately 14.10 metres (see Figure 4 below). Figure 3 shows the marking on the plans as '3.4m' between front boundary and kerb, whereas the scaled measurement distance as shown in Figure 4 is approx. 14.10m. It is my professional opinion that this is an error in the plans and emphasizes that the plans are inaccurate (and equally cannot be relied upon for the plans for levels / details of driveway).
The Council thereafter submitted in its Amended Summary of Argument that cl 1.18(e) of the Code SEPP has not been satisfied.
The Land shares a driveway with the adjoining parcel of land legally known as Lot 306 in Deposited Plan 746116, and otherwise known as 22 Heritage Way, Glen Alpine. The Development would necessitate carrying out of works to the driveway crossover. This driveway crossover is a public road.
Pursuant to s 138(1)(a) of the Roads Act, a person must not erect a structure or carry out work in, on or over a public road. DW 14 of the plans prepared by Descon Design & Construction and dated 25 May 2022 depicts the proposed driveway.
The Council contends that works are required to marry the existing driveway crossover with the proposed driveway. These works are likely to include (but not limited to) widening of the existing driveway crossover to match the proposed driveway and lowering of the ground level of the crossover.
The Council cannot say for certain the extent of works required as the driveway section plan which forms part of the approval is inaccurate.
The Council contends that the First or Second Respondents did not obtain written consent from the Applicant (being the relevant roads authority), as required under cl 1.18(e) of the Code SEPP and s 138 of the Roads Act.
The Council therefore argues that the development, the subject of the approval, fails to satisfy the requirements for complying development pursuant to cl 64(1)(b) of the Housing SEPP.

Findings on non-compliance with the Code SEPP and Roads Act

The Council's argument on this ground is predicated on a finding that the CDC requires works to be undertaken on that part of the driveway that is situated within the Council's road reserve.
The CDC approved plans (Exhibit J) included DW 03 an extract of which I attach as Annexure A.
As is apparent from that plan there is a notation that the driveway is to be retained. To the extent that any works are proposed to increase the width of the driveway to facilitate the extra parking proposed such work is proposed within the boundary of the private land and not the public road.
When the provisions of drawing DW 03 was traversed with the solicitor for the Council it was submitted that I would prefer the evidence of Mr Burton and not accept the provision of the approved drawing. I cannot accept this submission. The evidence of Mr Burton does not canvas the clear notation on DW 03. To the extent he relied upon the plan evidencing the provision, such provision was within the property boundary and not within the road reserve. Further, to the extent that Mr Burton expresses his opinions he does so on the basis that the plans contain inaccuracies and therefore cannot be relied upon for the driveway details, however, it is not apparent that the inaccuracies that Mr Burton identifies are in fact inaccuracies or rather are material within the plans not intended to show the detail that Mr Burton assumes is encompassed upon the plans.
The holder of the CDC may only carry out work pursuant to that CDC that has been approved by the CDC. There is no ambiguity in the notation in relation to the driveway as located within the public road - no work is proposed and therefore no work has been approved.
Accordingly, I reject the submission that the CDC was in breach of the Code SEPP in so far as there was an asserted non-compliance with the provisions of the Roads Act.

Conclusions and orders

For the reasons outlined above, I am satisfied that the CDC purported to authorise the carrying out of development for two group homes on the Land that was not properly characterised as complying development in that it did not comply with the development standards in cll 8 and 20 of Sch 2 in the Housing SEPP contrary to the provisions of cl 64 in the Housing SEPP such that it was not authorised to be issued.
Accordingly, the Court makes the following declarations and orders: 1. A declaration that Complying Development Certificate (Ref 00092858), issued by the Second Respondent to Michael Kustreba, Davina Kustreba and PPG Investments Pty Ltd (the former First, Second and Third Respondents) on 21 July 2022 (the Approval), for the new construction of two group homes and new construction of an attached garage on land identified as Lot 305 in Deposited Plan 746116 otherwise known as 20 Heritage Way, Glen Alpine in the State of New South Wales 2560, is invalid and of no effect. 2. An order that the First and Second Respondents, and any other persons that would otherwise be authorised to act on the Approval, be permanently restrained from carrying out any works under or in accordance with the Approval. 3. An order that the Respondents pay the Applicant's costs. 4. The exhibits are returned. Annexure A (pdf)

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: 21 December 2023

Assessment Act 1979(NSW)

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