respondent. Both contempt motions dismissed (notice of motion filed 16 August 2019 and notice of motion filed 6 September 2019), costs reserved (orders recorded at [93]).
Key principles
A breach of an undertaking given to the Court may constitute civil contempt, but the applicant must prove the alleged breach beyond reasonable doubt.
An undertaking that permits 'works exempt pursuant to the State Environmental Planning Policy (Exempt and Complying Development Codes) 2008' means that works which fall within...
Where the terms of an undertaking are clear and unambiguous, the Court will construe them according to their ordinary meaning, and the prosecution of contempt must be directed to...
Issues before the court
Whether Joseph Frangieh breached the undertaking given to the Court on 14 August 2019 by continuing building work at 27 Frederick Street, Concord.
Whether the Court should treat post-undertaking works as part of a continuing course of unlawful development (thereby preventing reliance on the...
What standard of proof and approach applies to contested factual elements in contempt charges grounded on planning definitions (i.e. whether...
Plain English Summary
Council accused Mr Frangieh of breaching a court undertaking by continuing building work after 14 August 2019. The undertaking forbade further building work except temporary weatherproofing and works exempt under the State's Exempt and Complying Development Codes (Codes SEPP). The Court accepted some work occurred and that Mr Frangieh knew of the undertaking, but found there was reasonable doubt about the precise nature and extent of the post-undertaking works (cladding, garage door work, electrical work). Because the Court could not be satisfied beyond reasonable doubt that those discrete works fell outside the Codes SEPP exemptions, contempt was not proved and both motions were dismissed; costs were reserved.
AI-generated legal information, not legal advice. Zoe can make mistakes. Check the cited source, and for advice about your situation consult a qualified Australian lawyer.
Deep Dive
1,809 words · generated 09/07/2026
What happened
The City of Canada Bay Council commenced Class 4 enforcement proceedings in the Land and Environment Court, alleging unlawful building works at 27 Frederick Street, Concord (an existing dwelling fronting Frederick Street and a detached studio above a rear garage fronting Mortlake Lane). Council sought injunctive and declaratory relief and, after an interlocutory hearing, the first respondent, Mr Joseph Frangieh, through his solicitor, gave a written undertaking on 14 August 2019. The operative undertaking restrained Mr Frangieh from carrying out further building work to the dwelling and studio except for (a) temporary weatherproofing or anti‑access measures and (b) any works exempt under the State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 (Codes SEPP). Moore J recorded that undertaking and made matching orders.
Cited legislation
1 cited instrument linked from this judgment.
Council later alleged breaches of that undertaking and filed two notices of motion (16 August and 6 September 2019) charging discrete post‑undertaking works as contempt: for the dwelling, the installation of Alucobond cladding to the parapet, columns and façade; for the studio, (i) replacement of a garage door fronting Mortlake Lane, (ii) continuation of cladding around the studio roof/garage, and (iii) electrical work within the studio. The factual evidence relied largely on contemporaneous site inspections and photographs produced by Council's compliance officer, Mr Dimitrios Ntais, and a bundle of correspondence and records. Mr Frangieh pleaded not guilty to each charge.
Both motions were heard together on 21 November 2019 before Robson J. The judge accepted that some works occurred after the undertaking and that Mr Frangieh knew of it; however, the Court had to decide whether Council proved beyond reasonable doubt that the charged works were not exempt development under the Codes SEPP. Robson J concluded that Council had not met the required criminal standard on the precise factual elements (extent and nature of cladding, whether the door was replaced or merely clad, and what electrical work occurred). Consequently both contempt motions were dismissed and costs were reserved (orders at [93]).
Why the court decided this way
Three legal axes drove the decision.
The standard of proof in contempt for breach of an undertaking is beyond reasonable doubt. The Court repeatedly stated that whether the matter is historically labelled civil or criminal contempt, that standard applies (citing Witham v Holloway and other authority). That placed a heavy evidentiary burden on Council to establish each factual element of each charge.
Construction and effect of the undertaking. The recorded undertaking expressly excepted works 'exempt pursuant to the State Environmental Planning Policy (Exempt and Complying Development Codes) 2008'. The judge held the undertaking to be clear and unambiguous on its face. Accordingly, if the discrete acts alleged as breaches fell within the Codes SEPP exempt development categories, they were not prohibited by the undertaking and could not found contempt. The correct task was therefore to examine whether Council had shown, beyond reasonable doubt, that the particular post‑undertaking works were not exempt development.
Limits on invoking planning characterisation in contempt. Council advanced a broader planning argument: the post‑undertaking works should be characterised as part of a continuing course of unlawful development begun before 14 August 2019, and therefore the Codes SEPP carve‑out could not be invoked to excuse continuation of an unlawful project. Robson J accepted that in planning contexts the whole‑of‑development characterisation is often necessary, but he declined to import that approach wholesale into contempt enforcement. In his view, contempt charges must focus on the precise conduct charged under the undertaking and test those discrete acts against the Codes SEPP. Policy concerns about misuse of an undertaking did not alter the legal construction of the undertaking in this case.
Applying those axes to the evidence, the judge found evidentiary gaps and uncertainties: photographs and descriptions did not establish the precise extent of cladding after the undertaking; it was uncertain whether a garage door had been replaced or simply clad; there was no clear evidence of the precise electrical work performed. Given those uncertainties, and the specific references to cladding and door replacement in Subdivision 27 (minor external alterations) of the Codes SEPP, the judge could not be satisfied beyond reasonable doubt that the charged works fell outside the Codes SEPP exemptions. As the necessary criminal standard was not met, the contempt charges failed.
Before and after state of the law
Before this decision:
It was settled that breach of an undertaking can found contempt and that the standard of proof is beyond reasonable doubt (Witham v Holloway and related authority).
Planning cases had established that to determine permissibility a court might characterise the development as a whole (Pathold; Santos), and related principles governed how to treat composite projects for zoning/regulatory purposes.
This decision clarifies (in the Land and Environment Court context) that:
When an undertaking expressly carves out statutory exemptions (here, the Codes SEPP exemptions), the Court will construe the undertaking according to its language and require the applicant in contempt proceedings to prove, beyond reasonable doubt, that the discrete works charged are not covered by those exemptions.
The holistic planning characterisation approach (treating post‑undertaking works as part of an earlier unlawful project so as to displace statutory exemptions) is not automatically applicable in contempt proceedings; the Court will typically assess the precise acts alleged and not displace the undertaking's express exceptions merely because of background unlawful acts.
In practical terms, Councils and litigants seeking contempt for post‑undertaking works must marshal comparatively robust, precise evidence establishing that the charged physical acts are non‑exempt; photographs and impressionistic inspection notes may be insufficient.
Key passages with plain-English translation
Selected (verbatim) extracts from the judgment and what they mean in everyday terms.
"Contempt of court can be constituted by a breach of an undertaking … each charge must be proved beyond reasonable doubt." (paraphrase of the judge's point)
Plain English: If you promise the court to stop doing something and you break that promise, you can be punished, but the court must be certain, to a criminal standard, that you actually broke it.
"The Undertaking does not, apart from one aspect, of itself throw up difficult questions of construction. … I do not find that the Undertaking is ambiguous."
Plain English: The judge found the wording of the promise clear. The only hard question was whether specific actions fit into the exception the promise allowed.
"I do not accept Council's submission ... the Codes SEPP simply cannot (or should not) apply."
Plain English: The Court rejected Council's argument that because earlier work may have been unlawful, the SEPP carve‑out in the undertaking was irrelevant. The Court insisted the carve‑out had to be tested against the specific post‑undertaking work.
"I am not satisfied to the requisite standard that Mr Frangieh has breached his Undertaking … each motion is dismissed."
Plain English: Because Council did not prove the charged acts were definitely outside the SEPP exemptions, the Court could not find contempt and dismissed the charges.
What fact patterns trigger this precedent
This decision will be most directly engaged where:
An interlocutory undertaking or order restrains further building or development but expressly permits works that are exempt under a statutory or regulatory instrument (for example, the Codes SEPP).
The alleged post‑undertaking activities consist of relatively discrete, cosmetic or non‑structural works (cladding, door replacement, minor internal alterations, electrical tasks) that may fall within the specific exempt categories of an environmental planning instrument.
The applicant relies on inspection photographs and general officer observations rather than precise, forensically clear proof of the character and extent of the works.
The respondent asserts reliance on a complying development certificate, or that the charged works are otherwise exempt under the Codes SEPP.
In such fact patterns this decision warns applicants and regulators they must assemble clear, unambiguous evidence (dates, comparative before/after plans or photographs, trades invoices or certificates) to meet the criminal standard for contempt. If the evidence leaves reasonable doubt about whether a charged component is caught by an exemption, the Court is likely to dismiss contempt charges.
How later courts have treated it
At the time of Robson J's decision (30 June 2020) the principal authorities on the standard for contempt and construction of undertakings remained binding. This judgment sits as a district‑level application in the Land and Environment Court of those principles to the planning/SEPP context. Its immediate force is persuasive: tribunals and courts in NSW dealing with enforcement of undertakings in planning disputes will treat it as an instructive application of the beyond‑reasonable‑doubt standard and as cautionary on reliance on broad planning characterisation to defeat an express carve‑out in an undertaking.
Practitioners should expect later courts to treat the decision as consistent with established contempt law and as a pragmatic treatment of evidential sufficiency in planning enforcement. Courts emphasise proof of precise acts, not policy fears. Where later courts face materially identical facts, Robson J's approach, insistence on discrete factual proof and proper application of the Codes SEPP to the charged acts, will be a strong precedent in the Land and Environment Court and persuasive elsewhere.
Still-open questions
Several issues may require further judicial elucidation:
To what extent can a court in contempt proceedings, when faced with clear evidence of an overarching unlawful project, treat discrete post‑undertaking acts as non‑exempt despite express carve‑outs in the undertaking? The judgment favours a narrow approach but recognises the policy tension. A case with stronger factual proof of a 'continuing course' might test the limits of Robson J's stance.
What quantum and quality of evidence will reliably meet the beyond‑reasonable‑doubt standard in building‑work contempt cases? Robson J rejected the photographic and inspection evidence in this case as leaving reasonable doubt. Future cases will clarify what constitutes sufficient proof, e.g., trades invoices, certifier reports, time‑stamped video, comparative measured drawings, or certificates from builders or certifiers.
How will courts treat situations where a CDC or other administrative authorisation is asserted by a respondent post‑undertaking but the applicant contends the CDC was invalidly issued? Robson J noted an asserted CDC was not before the Court. The interplay between administrative validity challenges and contempt enforcement needs further mapping.
Finally, the judgment leaves open the normative policy question: whether courts should develop doctrines to prevent tactical use of exemptions to frustrate interlocutory enforcement. Robson J acknowledged the policy concern but required the applicant to prove the offence within the undertaking's terms. Future appellate guidance may refine how to reconcile those policy concerns with legal formalism.
Practical takeaway for practitioners: where an undertaking permits statutory exemptions, do not assume a contempt remedy will be straightforward. Gather precise, time‑stamped, corroborated evidence of the nature and extent of the post‑undertaking works and, where possible, obtain contemporaneous admissions, trades records, or certifier input that negate any plausible claim that the works are exempt under the relevant environmental planning instrument.
Catchwords
[2017] NSWCA 191
Athens v Randwick City Council (2005) 64 NSWLR 58(2016) 217 LGERA 332
Kirkpatrick v Kotis (2004) 62 NSWLR 567[2004] NSWSC 1265
Lane v Registrar of the Supreme Court of New South Wales (1981) 148 CLR 245[2017] NSWCA 46
Port Stephens Council v SS and LM Johnston Pty LtdPort Stephens Council v Port Stephens Veterans and Citizens Aged Care Ltd [2007] NSWLEC 30(2007) 156 LGERA 446
Witham v Holloway (1995) 183 CLR 525
Judgment (13 paragraphs)
[1]
Judgment
In each of two notices of motion filed on 16 August and 6 September 2019 and amended on 21 November 2019, the City of Canada Bay Council ('Council') seeks orders that Joseph Frangieh be punished for contempt of Court as specified in amended statements of charge filed 21 November 2019. Briefly stated, each charge alleges that Mr Frangieh carried out building works at 27 Frederick Street, Concord ('site'), contrary to an undertaking given to the Court on 14 August 2019.
The first notice of motion filed on 16 August 2019 seeks an order that Mr Frangieh be punished for contempt in connection with works carried out to an existing dwelling at the site ('dwelling house motion'). The second notice of motion filed on 6 September 2019 seeks an order that Mr Frangieh be punished for contempt in connection with non-compliant building works carried out to a detached studio also at the site ('studio motion').
Mr Frangieh has pleaded not guilty to each charge.
Both matters were heard concurrently on 21 November 2019. Mr M Cottom, solicitor, appeared for Council and Mr R O'Gorman-Hughes of counsel, appeared for Mr Frangieh.
[2]
Background
Council commenced these civil enforcement proceedings in Class 4 of the Court's jurisdiction by summons filed on 8 August 2019 seeking declaratory and consequential (including interlocutory) injunctive relief against Mr Frangieh and Sharon Frangieh relating to alleged unauthorised building work to an existing dwelling house ('dwelling') and non-compliant building work to a detached studio ('Studio') being a first-floor addition to an existing garage at the site. The summons sought the following discrete declaratory relief in relation to the dwelling and the Studio:
"1. A declaration that the respondents have breached the Environmental Planning and Assessment Act 1979 (EP&A Act) by carrying out development for the purposes of a dwelling house, namely internal and external alterations and additions (Improvements) to an existing dwelling house (the Dwelling), on land described as Lot 26 DP 7924 known as 27 Frederick Street, Concord (the Land), being land to which Canada Bay Local Environmental Plan 2013 (CBLEP 2013) applied, in circumstances where:
(a) CBLEP 2013 provided that such development may not be carried out except with development consent; and
(b) no such consent had been obtained and was in force.
…
3. A declaration that the respondents have breached the EP&A Act by erecting a detached studio (Studio) and carrying out associated works on the Land otherwise than in accordance with complying development certificate 1990020/01 issued by Michael Simeonidis of Compass Building Certification Pty Ltd on 20 February 2019 (CDC)."
Although there was a claim for interlocutory relief in the summons, by notice of motion also filed on 8 August 2019, Council sought interlocutory injunctive relief against Mr Frangieh and Sharon Frangieh in the following terms:
"1. Until further order, an order immediately restraining the respondents (including by themselves, their servants or agents) from carrying out further building work to the existing dwelling house and the detached studio situated on land described as Lot 26 DP 7924 known as 27 Frederick Street, Concord, other than installing any temporary weatherproofing measures necessary to prevent damage to the building work carried out to date and/or temporary measures necessary to prevent unauthorised access to those buildings.
…"
On 14 August 2019, at the hearing of the notice of motion filed on 8 August 2019 for interlocutory injunctive relief before Moore J, Mr Frangieh, who was then represented by Mr J Bennett of counsel, instructed by Mr N Buckley, solicitor, gave a written undertaking signed by My Buckley and dated 14 August 2019 ('Undertaking') to the Court through his solicitor. The present charges allege contraventions of the Undertaking which was in the following terms:
"1. The first respondent, through his solicitor, gives an undertaking to refrain from (by himself, his servants or agents) carrying out further building work to the existing dwelling house and the detached studio situated on land described as Lot 26 DP 7924 known as 27 Frederick Street, Concord, other than:
(a) installing any temporary weatherproofing measures necessary to prevent damage to the building work carried out to date and/or temporary measures necessary to prevent unauthorised access to those buildings;
(b) any works exempt pursuant to State Environmental Planning Policy (Exempt and Complying Development Codes) 2008.
2. This undertaking is provided on a without admission basis.
3. The undertaking is provided to refrain in the manner contemplated at (1) above until determination of the Applicant's motion filed 8 August 2019."
Moore J made orders restraining each of Mr Frangieh and Sharon Frangieh from carrying out further building work to the dwelling and the Studio, in identical terms to the Undertaking given by Mr Frangieh. The orders made on 14 August 2019 are as follows:
"1 The Court notes the undertaking of First Respondent through his solicitor:
(1) The first respondent, through his solicitor, gives an undertaking to refrain from (by himself, his servants, or agents) carrying out further building work to the existing dwelling house and detached studio situated on land described as Lot 26 DP 7924 known as 27 Frederick Street, Concord, other than:
(a) installing any temporary weather proofing measures necessary to prevent damage to the building work carried out to date and/or temporary measures necessary to prevent unauthorised access to those buildings;
(b) any works exempt pursuant to State Environmental Planning Policy (Exempt and Complying Development Codes) 2008.
(2) This undertaking is provided on a without admission basis.
(3) The undertaking is provided to refrain in the manner contemplated at (1) above until determination of the Applicant's motion filed 8 August 2019.
2 The First Respondent's undertaking will remain on foot until the determination of the Applicant's Notice of Motion of 8 August 2019 for interlocutory relief.
3 The Applicant's application pursuant to rule 10.14(3) of the UCPR to accept that informal service has been effected on the Second Respondent for the purpose of interlocutory relief against her is granted.
4 The Second Respondent is until determination of the Applicant's Notice of Motion for interlocutory relief, to refrain from (by herself, her servants, or agents) carrying out further building work to the existing dwelling house and detached studio situated on land described as Lot 26 DP 7924 known as 27 Frederick Street, Concord, other than:
a. installing any temporary weather proofing measures necessary to prevent damage to the building work carried out to date and/or temporary measures necessary to prevent unauthorised access to those buildings;
b. any works exempt pursuant to State Environmental Planning Policy (Exempt and Complying Development Codes) 2008.
5 The Notice of Motion for interlocutory relief is stood over before the List Judge on 6 September 2019.
6 The Applicant is to provide by email to the First Respondent and his solicitor these orders so the Second Respondent may be aware of the order against her.
7 The Applicant is also to seek advice from the First Respondent on when it will be possible to effect formal service on the Second Respondent.
8 Costs of the Notice of Motion are reserved."
In the dwelling house motion, the statement of charge is as follows:
"Since on or about 16 August 2019 and continuing to about 28 August 2019, the First Respondent did, contrary to his undertaking given to the Court on 14 August 2019, by his servants or agents carry out further building work to the existing dwelling house (Dwelling) situated on land described as Lot 26 DP 7924 known as 27 Frederick Street, Concord, namely the installation of cladding to the parapet, columns and façade features to the front of the Dwelling (in continuation of external alterations and additions to the Dwelling that have been carried out in circumstances where Canada Bay Local Environmental Plan 2013 provided that such development may not be carried out except with development consent, and no such consent had been obtained and was in force), being building work other than:
(a) installing any temporary weather proofing measures necessary to prevent damage to the building work carried out to 14 August 2019, or installing temporary measures necessary to prevent unauthorised access to those buildings; and
(b) works exempt pursuant to State Environmental Planning Policy (Exempt and Complying Development Codes) 2008."
In the studio motion, the statement of charge is as follows:
"Between about 14 August 2019 and 4 September 2019, the First Respondent did, contrary to his undertaking given to the Court on 14 August 2019, by his servants or agents carry out further building work to the detached studio (Studio) situated on land described as Lot 26 DP 7924 known as 27 Frederick Street, Concord, namely by continuing the erection (including internal fit-out and external finishes) of the Studio (being works that have been carried out otherwise than in accordance with complying development certificate 1990020/01 issued by Michael Simeonidis of Compass Building Certification Pty Ltd on 20 February 2019), namely:
• replacement of the garage door at the ground floor level fronting Mortlake Lane between about 14 August 2019 and 4 September 2019;
• continuation of the cladding around the roof structure of the garage between about 28 August 2019 and 4 September 2019; and
• electrical work within the Studio on 4 September 2019,
being building work other than:
(a) installing any temporary weather proofing measures necessary to prevent damage to the building work carried out to 14 August 2019, or installing temporary measures necessary to prevent unauthorised access to those buildings; and
(b) works exempt pursuant to State Environmental Planning Policy (Exempt and Complying Development Codes) 2008."
On 21 November 2019, at the commencement of the hearing of the motions, it was agreed that both motions be heard concurrently and that the evidence in one would be the evidence in the other (Tcpt, 21 November 2019, p 3(14-28)).
[3]
Evidence
Council reads three affidavits of Dimitrios Jimmy Ntais, a Council compliance officer, sworn 13 August, 16 August and 5 September 2019, and an affidavit of Mark Andrew Cottom, Council's solicitor, sworn 16 August 2019. Mr Ntais also gave oral evidence.
The extensive background material exhibited to Mr Ntais' affidavit of 13 August 2019 (Exhibit A) comprised: a complying development certificate issued on 20 February 2019 by Michael Simeonidis of Compass Building Certification Pty Ltd ('CDC') and all architectural plans the subject of the CDC; detailed photographs taken by Council officers on various occasions being 20 February, 8 March, 10 May, 2 and 13 August 2019 of the state of the building works both in relation to the dwelling and the Studio; historical photographs of the dwelling and garage obtained from the website "realestate.com.au" and approved plans dated 2002 and 2003; Stop Work Order issued by Council on 14 May 2019; various email correspondence between Mr Frangieh and Mr Ntais; email of 16 July 2019 from Conomos Legal, solicitors acting for Mr Frangieh and Sharon Frangieh, to Council; and a letter of demand sent by email of 2 August 2019 from Council's solicitor to Mr Frangieh's solicitor.
Mr Ntais' affidavits of 16 August and 5 September 2019 detail his observations and conversations (and photographs taken) during further attendances on the site on 16 August, 28 August and 4 September 2019.
Mr Cottom's affidavit annexes various emails including from Council's solicitor to Mr Frangieh and his solicitor, Mr Buckley, at 3.30pm on 14 August 2019; from Mr Frangieh to Council's solicitor and Mr Buckley at 10.07am on 16 August 2019; from Council's solicitor to Mr Buckley at 10.16am on 16 August 2019; from Mr Frangieh to Council's solicitor at 11.52am on 16 August 2019; and from Mr Frangieh to Mr Buckley and to Council's solicitor at 12.14pm on 16 August 2019.
[4]
Facts prior to 14 August 2019
An understanding of the factual history of the matter is necessary to provide the context in which the Undertaking was given and to consider the submissions of the parties.
The factual narrative, but not the legal implications thereof, in this section is mostly undisputed. Some further facts are recorded in the submissions which are considered later in this judgment. The conduct to be considered in relation to the charges is primarily that undertaken after 14 August 2019.
In March 2019, Council received notification of the CDC (including the approved architectural plans) in relation to a first-floor addition of a studio structure over an existing garage at the site (being the Studio). At that time, the site, which is owned by Sharon Frangieh, had improvements comprising an existing dwelling with frontage to Frederick Street and a garage at the rear fronting onto Mortlake Lane.
Pursuant to the Canada Bay Local Environmental Plan 2013 ('LEP'), the site is zoned R2 Low Density Residential and development for the purpose of a dwelling house may only be carried out with development consent. State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 ('Codes SEPP') also applies to the site. The CDC in relation to the Studio above the rear garage was issued under the Codes SEPP.
In late April 2019, as a result of Council receiving complaints in relation to work being carried out on the site, Council officers including Mr Ntais attended the site and observed that works in relation to the Studio had progressed to the point of erecting a timber frame and a roof over the existing garage without any cladding or lining to the walls. Mr Ntais also observed that "substantial" work was being carried out to the existing dwelling on the site.
Mr Ntais thereafter inspected Council's records to determine whether there were development consents (and construction certificates) relating to the site. Apart from the CDC, he located and inspected four historical approvals relating to a building application for a garage facing the rear laneway in 1966; a building application for an addition to an existing dwelling in 1974; a development consent for a new two-storey dwelling with a rear double garage in 2002; and a development consent for an enclosed patio on the southern side of an existing dwelling in 2003.
[5]
Facts after 14 August 2019
On 16 August 2019, Mr Ntais again attended the site and observed that works were continuing to the dwelling including "Alucobond" cladding being installed to the parapet, columns and front façade. At this inspection 9 further photographs were taken by Council officers.
Mr Ntais again attended the site on 28 August and 4 September 2019 and observed that the installation of cladding to the front of the dwelling "appeared to have been completed" since his attendance on 16 August 2019, and that "further areas of the ground floor of the building had been tiled".
On 28 August 2019, Mr Ntais took photographs of the front of the dwelling (from Frederick Street) of the installation of the cladding and of the works occurring inside the dwelling which, again, included continuation of the tiling work.
On 4 September 2019, Mr Ntais viewed the site from both Frederick Street and Mortlake Lane and observed a number of tradespeople working in the garage below the Studio, including an electrical tradesman, "Jason", to whom he had spoken on an earlier occasion. Mr Ntais then had a telephone conversation with Mr Frangieh using Jason's mobile phone, at which time Mr Frangieh told Mr Ntais to leave the site as he "had a CDC". Before leaving the site, Mr Ntais took two further photographs of the Studio from Mortlake Lane and a photograph from his car of the "tradespeople working inside". He deposes that there were five to six people at the site at that time.
Having compared the photographs taken and observations made on 4 September 2019 with photographs of the Studio referred to in his earlier affidavit (recording his observations undertaken on 13 August 2019), Mr Ntais deposes that the continuation of the erection of the Studio (referred to in his previous affidavit) involved the replacement of the garage door at the ground floor level fronting Mortlake Lane and states "cladding has been continued around the roof structure of the garage". He deposes that that specific cladding had not been installed at the time of his previous inspection on 28 August 2019.
Mr Ntais was challenged in relation to his evidence in relation to the "replacement" of the garage door fronting Mortlake Lane. He did not accept a suggestion that the garage door had not been replaced or that it has had "new cladding … placed on top of the old door", and referred to the photographs in evidence and pointed to the different colours of the door at various times and the different colour of the frame around the garage door. When it was suggested to him that, leaving aside that the door frame was a different colour, that it may be the same door, he stated "I can't comment on that. It may be, may be not but I'm only just saying from my observations it looks like a new door." (Tcpt, 21 November 2019, p 19(18-19).)
[6]
Submissions
Mr Cottom and Mr O'Gorman-Hughes each provided written and oral submissions.
[7]
Dwelling house motion
Council submits that the conduct specified in each charge must be seen in circumstances where the substantive proceedings were commenced to remedy and restrain breaches of the EPA Act and the summons seeks orders to remedy and restrain unauthorised building work that was being carried out to the dwelling and, further, building work that was being carried out to the Studio otherwise than in accordance with the CDC. In essence, Council submits that the "continuation" of any such works could not be characterised in isolation from the alleged unlawful aspects of the work that had already been carried out and thus could never qualify as exempt or complying development.
Council refers to the affidavit of Mr Ntais of 13 August 2019 which demonstrates that at the time the substantive proceedings were commenced, and shortly prior to Mr Frangieh giving the Undertaking, building work had been carried out on the site since March 2019, which essentially involved the unauthorised stripping of all internal elements (including walls and a staircase) and the progressive installation of new internal elements and, further, significant external alterations and additions to the elevations (although Mr Ntais also refers to the erection of the Studio, this is considered in Council's submissions regarding the studio charge).
Council submits that the internal and external works that were carried out to the dwelling prior to Mr Frangieh giving the Undertaking were not exempt development for the purposes of s 1.6 of the EPA Act and that, for the purposes of cl 2.51 of the Codes SEPP, the internal building alterations to the dwelling did not involve the mere replacement or repair of internal building elements but also included changes to the configuration of the rooms with unknown effects on the load-bearing capacity of the dwelling.
Council further submits that for the purposes of cl 2.53 of the Codes SEPP, the addition of external parapet walls, the removal of the first-floor balcony, the extension of the roof form and the like, were not "minor external non-structural building alterations". Rather, Council submits that these works were development that was carried out for the purpose of a "dwelling house" as defined in the LEP and that such development within the R2 Low Density Residential Zone may only be carried out with development consent.
[8]
Studio motion
As Council repeats many of its submissions made in relation to the dwelling house motion in relation to the studio motion, in particular that the conduct specified in the charge cannot be characterised in isolation for the building work carried out to the Studio prior to the Undertaking, and in relation to attendances and observations of Council officers and Mr Frangieh's awareness of the Undertaking, I adopt the summary above and note the further submissions in relation to the studio motion as follows:
1. Mr Ntais' unchallenged evidence was that at the time the substantive proceedings were commenced (and prior to the Undertaking), building work had been carried out at the site since about March 2019 that involved (in addition to matters noted above in relation to the dwelling) the erection of the Studio otherwise than in accordance with the CDC.
2. The works to the Studio undertaken prior to the Undertaking departed from the CDC in relation to, inter alia, sliding doors being installed that would allow access to a rooftop terrace (where the area was proposed to be a roof and non-trafficable) in a location where the CDC plans provided for a highlight window; two ground-floor sliding door entries where a single-hinged door was required to be retained; and the removal and replacement of one garage door to the rear laneway with a glass window.
3. The continuation of the internal non-structural work to the Studio after the Undertaking and the external finishes to the Studio, the subject of the charge, cannot be characterised in isolation from the building work that had been carried out prior to Mr Frangieh giving the Undertaking and characterising the purpose of the development for planning purposes requires the development to be characterised as a whole.
4. The submissions in relation to Mr Frangieh's awareness of the precise terms of the Undertaking and his control and direction over the building work made in relation to the dwelling house motion were repeated.
[9]
Mr Frangieh's submissions
In relation to both charges, Mr O'Gorman-Hughes submits that a question not only arises as to whether Council has proven beyond reasonable doubt that the work relied upon was not exempt development, but that there is also a question as to whether the Undertaking was sufficiently clear that the breach was "beyond all question".
In relation to the studio charge, in summary, Mr O'Gorman-Hughes submits that there is no evidence to establish that electrical work was carried out in the Studio on 4 September 2019 as alleged.
Furthermore, as to the evidence of Mr Ntais that the garage door was "replaced", Mr O'Gorman-Hughes submits that the Court would not be satisfied beyond reasonable doubt that this was the case given that, in cross-examination, this evidence was qualified. In particular, when it was suggested to Mr Ntais that the only change to the garage door was that it was covered in cladding, Mr Ntais responded that it appeared "smooth rather than patterned" and had a different colour frame. Further, when it was suggested to him that it was possible that the door had been cladded, he responded by saying "I can't comment". In these circumstances, the Court could not be satisfied beyond reasonable doubt that the alleged conduct in relation to the electrical work in the Studio and the replacement of the garage door had been made out.
In summary, Mr O'Gorman-Hughes submits that the evidence does not establish that the work referred to in each of the charges (cladding, replacement of the garage door, and electrical work) is not exempt development. Contrary to Council's submissions, he submits there was no requirement in the EPA Act that exempt development be defined by a reference to its purpose, or by reference to any larger development of which it forms part. In particular, the Codes SEPP makes no specific provision which requires that a building to be altered is to have development consent.
When the provisions under Subdiv 26 of the Codes SEPP dealing with "minor building alterations (internal)" and Subdiv 27 of the Codes SEPP dealing with "minor building alterations (external)") are considered, Mr O'Gorman-Hughes submits that exempt development includes minor external non-structural building alterations such as cladding and the replacement of a door, as well as minor internal building alterations for the replacement or renovation of internal rooms such as bathrooms, kitchens, walls and ceilings. It is further submitted that the evidence does not establish beyond reasonable doubt that the work referred to in the charges (including cladding, replacement of the garage door, and electrical work) was not exempt development under the Codes SEPP and specifically in relation to the studio charge, the evidence does not establish beyond reasonable doubt that it was carried out otherwise than in accordance with the CDC.
[10]
Consideration
It is convenient to set out the principles which I am bound to apply.
1. Contempt of court can be constituted by a breach of an undertaking as well as by a breach of an order of a court and, irrespective of whether the present matters are categorised in a historical sense as criminal or civil contempt, each charge must be proved beyond reasonable doubt: Witham v Holloway (1995) 183 CLR 525; [1995] HCA 3 ('Witham v Holloway') at 529, 534-535, Commonwealth Bank of Australia v Salvato (No 4) [2013] NSWSC 321 at [126], Furlong v Wise and Young Pty Ltd [2019] NSWSC 1718 ('Furlong') at [92]-[98]. Here, the charges are properly characterised as civil contempt.
2. A person cannot be found guilty of contempt of court for a breach of an order or an undertaking where the terms of the order are ambiguous such that it cannot be said what it was that required compliance and, in construing the terms of an undertaking, a court should seek to give meaning to an undertaking if its terms so permit. The terms should be given a sensible meaning consistent with its actual terms, as it must be possible on the meaning given for an undertaking to be capable of being obeyed.
3. When construing an undertaking that is given to a court by consent, evidence of surrounding circumstances is admissible: Rogers v Wentworth (Court of Appeal (NSW), 18 April 1988, unrep) at 18-19, Athens v Randwick City Council (2005) 64 NSWLR 58; [2005] NSWCA 317 ('Athens') at [28].
4. Whether an undertaking is sufficiently clear and unambiguous is a question about which minds may differ: Kirkpatrick v Kotis (2004) 62 NSWLR 567; [2004] NSWSC 1265, Campbell J noted at [55]:
"… if an order is really not clear, it is unjust for someone to be punished for not obeying it. As well, though, the court approaches the question of whether the order is ambiguous on the basis that the recipient is expected to try to understand it and obey it. If a person taking that approach to the order could be in real doubt about what it meant, in a respect which is relevant to the particular charge of contempt which is brought, the charge will fail…"
1. The party bringing the charge of contempt will be held to that precise formulation of the charge: Lane v Registrar of the Supreme Court of New South Wales (1981) 148 CLR 245; [1981] HCA 35 at 257; Furlong at [101].
2. Council is required to prove beyond reasonable doubt each of the elements of each charge including that the works undertaken were not exempt development: Port Stephens Council v SS and LM Johnston Pty Ltd; Port Stephens Council v Port Stephens Veterans and Citizens Aged Care Ltd [2007] NSWLEC 30; (2007) 152 LGERA 193 at [70], Heatscape Pty Ltd v Mahoney (No 2) [2016] NSWLEC 45; (2016) 217 LGERA 332 ('Heatscape') at [184]-[210].
[11]
Conclusion
For the reasons above, although I maintain concerns as to the work that has been undertaken on the site, I am not satisfied to the requisite standard that Mr Frangieh has breached his Undertaking as specified in the notice of motion filed 16 August 2019 and the notice of motion filed 6 September 2019 and the respective statements of charge. As such, each motion is dismissed.
[12]
Orders
The orders of the Court are:
1. Notice of motion filed on 16 August 2019 is dismissed.
2. Costs in notice of motion filed on 16 August 2019 are reserved.
3. Notice of motion filed on 6 September 2019 is dismissed.
4. Costs in notice of motion filed on 6 September 2019 are reserved.
[13]
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: 02 July 2020
Both contempt motions dismissed (notice of motion filed 16 August 2019 and notice of motion filed 6 September 2019), costs reserved (orders recorded at [93]).
Mr Ntais again inspected the site on 8 May 2019. In relation to the dwelling, he observed that building works to the existing structure consisted of the complete stripping of the building including linings, fixtures and fittings; the removal of internal walls; and the installation of steel beams. He also observed that building works had been carried out to remove a first-floor balcony and extend the roof form above the previously existing first-floor balcony; that a new parapet roof/wall form at the southern side of the front elevation at the ground floor was being constructed; and that front pavements and patios had been demolished.
During the same inspection, Mr Ntais observed that, in relation to the Studio above the garage, sliding doors had been installed where the CDC approved plans depicted a highlight window; two ground floor sliding door entries had been created where a single-hinged door and two highlight windows were depicted in the CDC plans; and that one garage door to the rear laneway had been removed and replaced by a glass window otherwise than depicted in the CDC plans. Mr Ntais noted in Council's internal inspection records that there was no complying development certificate for the "main home", and that the Studio construction was not in accordance with the CDC.
Subsequent to Mr Ntais' attendance on 8 May 2019, Council issued an emergency order ("Stop Work Order") pursuant to the Environmental Planning and Assessment Act 1979 (NSW) ('EPA Act') requiring Sharon Frangieh as the owner of the site "[t]o cease all building works being conducted at [the site]". The Stop Work Order provided reasons for the order including that the works were not being carried out in accordance with the CDC; that the building works in the existing dwelling did not fall within the Exempt Development provisions of the Codes SEPP; and that the degree of compliance with the Building Code of Australia "being matters which would have been assessed under a development consent process…" was unknown. Mr Frangieh responded to the Stop Work Order by a number of emails which, inter alia, requested the withdrawal of the Stop Work Order. At a further inspection of the site on 30 May 2019, Mr Ntais observed that no further work had been carried out since the Stop Work Order.
On 16 July 2019, Council received correspondence from Conomos Legal, solicitors acting for Mr Frangieh and Sharon Frangieh, requesting the revocation of the Stop Work Order, stating that compliance with the Stop Work Order was causing significant delay and financial loss.
On 17 July and 1 August 2019, Mr Ntais again attended the site and observed that building work had recommenced, including the erection of scaffolding around the garage/Studio; obstruction of windows to the existing dwelling; and rendering work undertaken to the extended front fence.
As a result of Mr Ntais' observations, on 2 August 2019, Council's solicitor forwarded a letter to Mr Frangieh's solicitor expressing Council's concerns. The letter stated that work had been undertaken contrary to the Stop Work Order; that works had continued to the Studio contrary to the CDC; and, further, that the CDC appeared to have been invalidly issued. The letter stated that Council intended to take action to have the CDC declared to be invalid and to seek interlocutory injunctive relief to prevent "further unlawful building works to the studio above the existing garage in purported reliance on the CDC and to the existing dwelling to which no development consent has been granted". The letter sought an undertaking from Mr Frangieh and Sharon Frangieh that they would immediately cease all building works on the site; refrain from carrying out further building works on the site until development consent is obtained; and make the site safe by erecting site fencing.
On 7 August 2019, Mr Ntais again attended the site and observed workers on the upper level of the dwelling and two workers on the lower level spreading a cement base. Mr Ntais had a conversation with Mr Frangieh in which he indicated that he would be "lodging a new complying development certificate" and that he was "… not stopping anything". Further photographs of the site and the works were taken on 13 August 2019 and Mr Ntais deposes that further building work was undertaken between 7 and 13 August 2019 which involved first, cladding of the fin wall to the front veranda at the ground floor of the dwelling; second, lining of the soffit under the front balcony to the dwelling; and, third, the addition of "trim" around the Studio balcony.
As noted above, the substantive civil enforcement proceedings (and the separate notice of motion seeking interlocutory injunctive relief) were commenced on 8 August 2019 and the Undertaking was given at the hearing of the motion before Moore J on 14 August 2019. Although Mr Frangieh was represented before Moore J by counsel and a solicitor, neither Mr Frangieh nor Sharon Frangieh was present at the hearing. Council's solicitor sent a copy of the orders made by Moore J to Mr Frangieh and his solicitor (Mr Buckley) as directed by Order 6 of the orders (at [8] above) and Mr Frangieh responded by email of 16 August 2019 stating:
"Great thanks Guys,,, anyway I have a CDC approval for the works as of yesterday which I advised council over a week ago I had engaged Certifier…so this whole exercise was a real waste of time and a very costly experience.
Anyway Mark please liaise with Mr Buckley on this very urgent and life threatening matter moving forward:
…"
Council submits that the further cladding works undertaken after the Undertaking was given cannot be characterised in isolation from the allegedly unlawful aspects of work that had been carried out to the dwelling prior to the giving of the Undertaking.
In the circumstances, Council submits that the cladding works that are the subject of the charge are part of a "continuing course of development" and the Court would not, and it is not appropriate to, take a "piecemeal" approach to characterising the development. Council points to caselaw (People for the Plains Incorporated v Santos NSW (Eastern) Pty Ltd (2017) 220 LGERA 181; [2017] NSWCA 46 ('Santos') at [1], [139]-[140], [201] applying Pathold No 176 Pty Ltd v Minister for Transport Services [2005] NSWLEC 184 ('Pathold') at [20]) in submitting that the correct approach is for the Court to look at the whole of the development considered from the viewpoint of its proper characterisation and that it is not appropriate to single out one particular component of an overall development for the purpose of characterisation.
Council further submits that there is no doubt as to Mr Frangieh's awareness of the Undertaking that was given to the Court through his solicitor first, because the Undertaking was proffered to the Court and signed by Mr Frangieh's solicitor at a time when Mr Frangieh was represented by counsel and, second, Council's solicitor forwarded to Mr Buckley, Mr Frangieh's solicitor, an email attaching the orders made by Moore J and notes that that email was forwarded in specific compliance with the direction given by Moore J. In addition, Council points to the email in response from Mr Frangieh dated 16 August 2019 (at 10.07am) being a response by Mr Frangieh suggesting that he has a new complying development certificate for the works. Council also submits that there is no evidence in relation to any further complying development certificate despite the assertion made by Mr Frangieh in that email.
In the circumstances, even apart from Mr Frangieh's legal representatives being in Court when the Undertaking was given and the orders were made, Council submits that the Court would be satisfied as to Mr Frangieh's awareness of the Undertaking in any event, at the very latest, by Friday 16 August 2019 at 10.07am, being the date on which Council says the Court would be satisfied beyond reasonable doubt that the work to the dwelling commenced in breach of the Undertaking.
Council also points to the further emails from Mr Frangieh on 16 August 2019 at 11.52am to Council's solicitor stating "… please do not [sic] any further attempts to hinder my progress outside our consent order I will sue Council for damages and costs and anyone found trespassing into [the site]", which email also states that "… exempt works in Accordance with the SEPP are none of anyone's business …", are an indication from Mr Frangieh that works would not stop at that time. Further email correspondence directly from Mr Frangieh again to Council's solicitor on 16 August 2019 at 12.14pm noting that "the electrician was told to leave premises today", and "I will quantify damages for your record for that trade so far today please", in Council's submission, provide a clear indication of Mr Frangieh's awareness of the requirements of the Undertaking and of a "deliberate scheme" to subvert the requirements of the Undertaking he had been given.
Council further submits that the conversations Mr Ntais had with "Jason", the electrical tradesman, and Mr Frangieh on 4 September 2019, reflect Mr Frangieh's control and direction over the further building work that was being carried out, noting that Jason subsequently left the site after being told of the "Court order".
Council submits that the works to the dwelling the subject of the contempt charge relate to the works done to the external façade, and directs the Court to the evidence including the photographic evidence of the Alucobond cladding that was installed after the giving of the Undertaking on 14 August 2019. It submits that the Court would be satisfied of these matters beyond reasonable doubt because Mr Ntais observed the cladding being installed to the front façade of the existing dwelling.
Council submits that the Court would be satisfied beyond reasonable doubt that, prior to the Undertaking being given to the Court on 14 August 2019, the Alucobond cladding the subject of the charge was not in place and was in the process of being erected to the dwelling when Council officers were at the site on 16 August 2019 and, further, that the cladding was thereafter installed. Council points to the evidence of Mr Ntais (affidavit 5 September 2019) where he deposes to his attendance and further observations on 28 August 2019 as well as the photographs taken on that day.
Council further submits that the three "exceptions" contained in the Undertaking do not arise as there is no evidence that would suggest that the works undertaken were, first, "temporary weatherproofing measures"; second, measures "to prevent unauthorised access"; or third, exempt development pursuant to the Codes SEPP (a matter which Council submits the Court would find beyond reasonable doubt).
While Council accepts that the Court must find beyond reasonable doubt that the discrete conduct the subject of the charge is not exempt development, Council's submission is that the Codes SEPP does not arise for consideration in light of the continuing course of conduct.
Council also submits that, to the extent that exempt development is provided for in Sch 2 of the LEP (which contains additional exempt development not specified in the Codes SEPP), it does not contain any relevant provisions for residential building works within that schedule.
Mr O'Gorman-Hughes submits that the authorities cited by Council (including Santos and Pathold) deal with characterisation in a context where an assessment of the purposes for which the development was carried out was required in order to determine the correct characterisation, and should not apply to development which the Codes SEPP specifically defines as alterations to a building. Further, it is commonplace for provisions in environmental planning instruments to set out whether consent is required or whether development is exempt development otherwise than by reference to the purpose of the overall development. For example, for subdivision, earthworks and demolition (citing by way of example, cll 2.6 and 2.7 of the Standard Instrument and Wehbe v Pittwater Council [2007] NSWLEC 827; (2007) 156 LGERA 446 at [28]). Further, there are some provisions where the Codes SEPP identifies whether work is exempt by reference to its purpose (see for example, cl 2.54(f)), however that is not the case in relation to the alterations referred to in the present charges.
Apart from the above, Mr O'Gorman-Hughes submits the Undertaking should be construed in the context of the surrounding circumstances, which include the fact that the Undertaking was given in response to a motion seeking interlocutory injunctive relief from carrying out any work on the site other than for installing temporary waterproofing measures and/or temporary measures necessary to prevent unauthorised access. As such, the Undertaking was itself in more limited terms and permitted works to both the dwelling and the Studio which were exempt under the Codes SEPP.
Further, the Undertaking clearly envisaged that further work could be carried out on the site if it were otherwise exempt development pursuant to the Codes SEPP.
With respect to the submissions received, I consider that contempt proceedings involve two inter-related primary questions. First, what an undertaking requires on its true construction; and secondly, whether the terms of that undertaking are sufficiently clear to the person affected by the order to support enforcement of that order against that person: Athens at [27], Rafailidis v Camden Council [2015] NSWCA 185 at [45].
With these comments in mind, and taking into account the principles noted above, I am of the view that the Undertaking does not, apart from one aspect, of itself throw up difficult questions of construction. While I consider there is an issue as to whether certain works undertaken fall within the exceptions or carve-out in the Undertaking, I do not find that the Undertaking is ambiguous. Even if that were not the case, resort to the background material, on the assumption that such recourse was necessary, makes it abundantly clear that the Undertaking was provided in circumstances where there had been a history of conduct which had properly raised the concern of Council. These concerns provided the background to, if not the justification for, Council seeking interlocutory injunctive relief. Be that as it may, the Undertaking clearly provides that Mr Frangieh is to refrain from carrying out "further building work" to the existing dwelling and the detached Studio on the site subject to three exceptions.
Before further consideration, it is again abundantly clear, and I find that not insignificant building work had been undertaken at the site both in relation to the dwelling and the construction of the Studio prior to the date of the Undertaking. I have recorded above in some detail the background conduct which triggered Council's concerns, and although not determinative in my consideration, the evidence in this regard was not challenged. Despite this, as noted above, I do not consider the terms of the Undertaking are unclear such that the task is not one of interpretation, but of consideration as to whether Council has satisfied the requisite onus such that I find beyond reasonable doubt, first, that the works the subject of each of the charges have been undertaken; and second, that those works do not fall within subpars (a) and (b) of the first paragraph of the Undertaking.
Before considering some discrete aspects of each charge, I make the following findings.
I am satisfied beyond reasonable doubt that building work was undertaken in relation to both the dwelling and the Studio both prior to and after the Undertaking was given. I accept, as I am obliged to, the mostly uncontested evidence of Mr Ntais which details his observations during his various attendances on 10 April; 8, 10 and 30 May; 17 July; 1, 7, 16 and 28 August; and 4 September 2019. Further, based on communication between Mr Frangieh and Mr Ntais, including the correspondence passing between the parties and the comments made by Mr Frangieh, in the circumstances, I find beyond reasonable doubt that the work at the site was being undertaken at all material times and, more specifically, both before and after the Undertaking at the direction of and under the control and authority of Mr Frangieh.
The circumstances surrounding the provision of the Undertaking and, in particular, the fact that Mr Frangieh was represented by both counsel and a solicitor at the time the Undertaking was given; Council's forwarding of final orders made by Moore J to Mr Frangieh and his solicitor; and Mr Frangieh's various responses thereto, satisfy me beyond reasonable doubt that Mr Frangieh was aware of the Undertaking.
Although Council raised a concern in written submissions that some reliance would be placed upon a complying development certificate apparently dated 16 August 2019, no such certificate was before the Court.
Leaving aside the question of whether the works specified in each of the charges are exempt works pursuant to the Codes SEPP, which I consider later in the judgment, Council's primary position is that because of the background circumstances (and the evidence before the Court), that the work the subject of each of the charges being undertaken is a continuation of previously unlawful conduct, that is, being undertaken without development consent in relation to the dwelling and not in accordance with the CDC in relation to the Studio, the Codes SEPP simply cannot (or should not) apply.
As I understand Council's submission, the work the subject of each of the charges is part of a continuing course of allegedly unlawful conduct as the works undertaken before the Undertaking were not exempt development. Therefore, the Court must consider (and effectively characterise) the whole of the conduct being undertaken and it would not be appropriate to single out for characterisation one (or more) particular components of the overall development in a piecemeal fashion. As such, the Court would not consider the works the subject of each of the charges in isolation to that conducted before the Undertaking and, therefore, Council submits that the Codes SEPP does not arise because of the continuing course of conduct.
I do not accept Council's submission is apt in the present circumstances. The authorities to which Council refers, do not, in my view, assist in determining the issues before the Court. There is no doubt that when characterising the purpose of a development for planning purposes the development must be considered as a whole, and that, in some circumstances, it is necessary to consider whether a part of premises or land is used for a purpose which is subordinate to (or essentially different from) the purpose which inspires the use of another part. In such a circumstance, it may be legitimate to disregard the former and treat the other, possibly dominant, purpose as that for which the whole is being used: Foodbarn Pty Ltd v Solicitor-General (1975) 32 LGRA 157 at 161, Santos at [139]-[141]. However, I do not consider that this approach is appropriate in determining the possible breach of the Undertaking. While it may be the case that the present facts could be considered in a planning context, principles in relation to characterisation which are relevant to questions of permissibility and the like are not appropriate, in my view, to be relied upon in proceedings for contempt.
While there is force in Council's submission, more particularly because it would be an unusual and unintended consequence if a person could, when faced with proceedings to restrain alleged unlawful building/development conduct, proffer an undertaking (with or without a Codes SEPP carve out) and continue the alleged unlawful work or development under the guise of the Codes SEPP, I do not find this submission persuasive.
As I consider that the wording of the Undertaking is clear and unambiguous, and accepting that there was (and may be) a proper case for relief in relation to works undertaken at the site that may be unlawful (either because the works to the dwelling were being undertaken without development consent or that the works to the Studio were not in accordance with the CDC), the essential question in both notices of motion is whether there has been a breach of the Undertaking.
With the above comments in mind and given the precise manner in which the charges have been drafted, I do not accept Council's submission that it is not possible to characterise the work performed after the Undertaking as exempt development (or otherwise) because those works were, in effect, a continuation of allegedly unlawful aspects of work that had already been carried out.
As Mr O'Gorman-Hughes contended that there has been no breach of the Undertaking because each of the identified works the subject of each of the charges - being the installation of the cladding to the parapet, columns and façade features to the front of the dwelling as charged in the dwelling house charge; and the replacement of the garage door at the ground level, the continuation of the cladding around the roof structure of the garage, and electrical work within the Studio in relation to the studio charge - were each works properly falling within the Codes SEPP and thereby exempted from the Undertaking, consideration of the Codes SEPP is appropriate.
In relation to the dwelling house motion, I am satisfied first, that the installation of cladding to the parapet, columns and façade features to the front of the dwelling has been undertaken; and, second, that no development consent had been obtained and was in force (as per the statement of charge). However, given that on my interpretation of the Undertaking, there is an exception relating to "works exempt pursuant to the [Codes SEPP]" as I have noted above, I must be satisfied beyond reasonable doubt that the works were not otherwise exempt pursuant to the policy.
The same applies in relation to the studio motion. Even if I was satisfied as to first, the fact of the "replacement" of the garage door fronting Mortlake Lane (on about 14 August and 4 September 2019); the continuation of cladding around the roof structure of the garage (between 28 August and 4 September 2019); and the electrical work within the Studio (on 4 September 2019), were each undertaken as part of the "continuing" erection (including internal fit-out and external finishes) of the Studio, and that such works having been carried out otherwise than in accordance with the CDC, again, I must be satisfied beyond reasonable doubt that the works were not otherwise exempt pursuant to the Codes SEPP. This also requires consideration of the Codes SEPP.
Prior to noting specific provisions of the Codes SEPP, it is convenient to make some preliminary observations about its structure. Its aims are stated in cl 1.3, which provides:
1.3 Aims of Policy
This Policy aims to provide streamlined assessment processes for development that complies with specified development standards by:
(a) providing exempt and complying development codes that have State-wide application, and
(b) identifying, in the exempt development codes, types of development that are of minimal environmental impact that may be carried out without the need for development consent, and
(c) identifying, in the complying development codes, types of complying development that may be carried out in accordance with a complying development certificate as defined in the Act, and
(d) enabling the progressive extension of the types of development in this Policy, and
(e) providing transitional arrangements for the introduction of the State-wide codes, including the amendment of other environmental planning instruments.
The remaining clauses of Div 1 of the Codes SEPP identifies the land to which the Codes SEPP applies; provides definitions and savings measures; and explains how the Codes SEPP interacts with other State environmental planning policies, local environmental plans, and development control plans.
Division 2 of the Codes SEPP relevantly provides general requirements that must be satisfied for development to be exempt. Part 2 of the Codes SEPP relevantly contains a series of subdivisions, each of which specifies a kind of development which is exempt; and, associated development standards which must apply to that development in order to take advantage of the exemption.
Simply stated, the carrying out of exempt development does not require development consent under Pt 4 (s 1.6(1)(a)) of the EPA Act. Exempt development is development that is declared to be exempt development by an environmental planning instrument (such as the Codes SEPP) because of its minor impact: s 1.6(2) of the EPA Act.
With the above comments, for clarity I set out the relevant extracts of the EPA Act and the Codes SEPP to which reference was made in the submissions as follows:
Environmental Planning and Assessment Act 1979
Part 1 Preliminary
1.6 Exempt development
(1) The carrying out of exempt development does not require:
(a) development consent under Part 4, or
…
(2) Exempt development is development that is declared to be exempt development by an environmental planning instrument because of its minor impact.
Part 4 Development assessment and consent
4.2 Development that needs consent
(1) General If an environmental planning instrument provides that specified development may not be carried out except with development consent, a person must not carry the development out on land to which the provision applies unless:
(a) such a consent has been obtained and is in force, and
(b) the development is carried out in accordance with the consent and the instrument.
...
(2) For the purposes of subsection (1), development consent may be obtained:
(a) by the making of a determination by a consent authority to grant development consent, or
(b) in the case of complying development, by the issue of a complying development certificate.
…
State Environmental Planning Policy (Exempt and Complying Development Codes) 2008
…
1.15 What development is exempt development?
(1) Development that is specified in an exempt development code that meets the standards specified for that development and that complies with the requirements of this Division for exempt development is exempt development for the purposes of this Policy.
(2) For the purposes of subclause (1), development that is specified includes any specified limitations as to the land on which that development may be carried out.
…
1.16 General requirements for exempt development
(1) To be exempt development for the purposes of this Policy, the development:
(a) must meet the relevant deemed-to-satisfy provisions of the Building Code of Australia, or if there are no such relevant provisions, must be structurally adequate, and
(b) must not, if it relates to an existing building, cause the building to contravene the Building Code of Australia, and
…
…
(3) To be exempt development for the purposes of this Policy, the development must:
(a) be installed in accordance with the manufacturer's specifications, if applicable, and
(b) not involve the removal or pruning of a tree or other vegetation that requires a permit or development consent for removal or pruning, unless that removal or pruning is undertaken in accordance with a permit or development consent.
…
…
Part 2 Exempt development codes
Subdivision 26 Minor building alterations (internal)
2.51 Specified development
(1) A minor internal building alteration for the replacement or renovation of:
(a) a doorway, wall, ceiling or floor lining, or
(b) a deteriorated frame member, including stairs and stairwells, or
(c) a bathroom or kitchen, or
(d) a built in fixture such as a vanity, a cupboard or a wardrobe, or
(e) an existing sanitary fixture, such as a grease trap or the like, or
(f) shelving or racking that is not higher than 2.7m, or
(g) a work station or counter,
is development specified for this code if it is not constructed or installed on or in a heritage item or a draft heritage item.
(2) The installation of new or replacement insulation material in the ceiling, floor or wall of a building is development specified for this code.
2.52 Development standards
The standards specified for that development are that the development must:
…
(a) if it is the replacement or renovation of a deteriorated frame member - be of equivalent or improved quality materials, and
(b) not include a change to the configuration of a room, whether by removal of an existing wall, partition or other means, and
(c) not cause reduced window arrangements for light and ventilation needs, reduce the size of a doorway or involve the enclosure of an open area, and
(d) not affect the load bearing capacity (whether vertical or horizontal) of a building, and
…
(f) if it is the installation of new or replacement insulation material in a dwelling, it must be in accordance with Part 3.12.1 of the Building Code of Australia.
Subdivision 27 Minor building alterations (external)
2.53 Specified development
A minor external non-structural building alteration, such as the following:
(a) painting, plastering, cement rendering, cladding, attaching fittings or decorative work,
(b) the replacement of an external window, glazing areas or a door (other than those on bush fire prone land),
(c) the repair to or replacement of a non-structural wall or roof cladding,
(d) the installation of a security screen or grill to a door or window or a security door,
(e) the repair to or replacement of a balustrade,
…
is development specified for this code if it is not constructed or installed on or in a heritage item or a draft heritage item or in a heritage conservation area or a draft heritage conservation area.
2.54 Development standards
The standards specified for that development are that the development must:
(a) not comprise the making of, or an alteration to the size of, any opening in a wall or roof, such as a doorway, window or skylight, and
(b) not reduce the existing fire resistance level of a wall or roof, and
(c) if located on bush fire prone land:
(i) be adequately sealed or protected to prevent the entry of embers, and
(ii) use equivalent or improved quality materials, and
(d) not affect any existing fire resisting components of the building, and
(d1) if the development involves cladding or is attaching fittings or decorative work:
(i) not be carried out on any building other than a 1 or 2 storey dwelling house, attached development or detached development, and
(ii) not involve the use of external combustible cladding, and
(e) not affect the means of egress from the building in an emergency, and
(f) if it is the installation of a security screen or grill to a door or window or a security door:
(i) be for the purposes of a dwelling, or
(ii) be for any other purpose so long as:
(A) the screen or grill is installed for a door or window that is situated at least 5m from the boundary of any road, or
(B) the security door is installed at least 5m from the boundary of any road.
Note. See separate entry for skylights.
As I have noted above, given my view as to the construction of the Undertaking, and contrary to the manner I understand Council prosecutes its case, it is the precise works undertaken subsequent to 14 August 2019 that must be considered in relation to each of the charges. Given that I do not accept Council's "characterisation" submission, the works specified in each charge must be individually considered or, in relation to the Studio, considered together.
It is trite to note that there is no general rule that delegated legislation is to be interpreted more flexibly than statutes: 4nature Incorporated v Centennial Springvale Pty Ltd (2017) 95 NSWLR 361; [2017] NSWCA 191 at [45], [107]. I consider the Codes SEPP in that manner.
It therefore remains to be considered whether the works do not fall within the exempt development provisions. My findings in this regard will be shortly stated.
In relation to the dwelling charge, I have considered the evidence in relation to the installation of the cladding and Council's evidence of the conduct subsequent to 14 August 2019. Although there are photographs and Mr Ntais' observations in relation to the cladding, the precise nature and extent of the cladding that he deposes was "completed" is unclear. Although he gives evidence of "works inside" the dwelling, the charge particularises the "further building work" as "installation of cladding".
Although I have reservations in relation to the extent of cladding work that was undertaken in relation to the dwelling after 14 August 2019, Subdiv 27 of the Codes SEPP specifically refers (albeit under the heading "minor building alterations (external)") to "cladding" in cl 2.53(a), as does 2.53(c), albeit on the basis that it refers to "repair or replacement of non-structural wall or roof cladding", and cl 2.54(d)(i) also deals with development which "involves cladding" (not being carried out on a building other than a one or two-storey dwelling house). As such, given the specific references to cladding in the Codes SEPP, I am not satisfied beyond reasonable doubt that the work undertaken to the front of the dwelling after 14 August 2019 was not exempt development pursuant to the Codes SEPP.
Although I have concern that the work may not be considered "minor" in the sense of the heading to Subdiv 27 (which provides "minor building alterations (external)"), cl 2.53 ("specified development") specifically provides that a minor external non-structural building alteration such as "cladding" is development specified for in the Codes SEPP (subject to certain restrictions).
In relation to the studio charge, I make the following findings. In relation to the electrical work, even accepting the uncontested evidence of Council, I consider the evidence is insufficient to establish beyond reasonable doubt that the presence of an electrician in the garage was not in relation to minor internal building alterations; and, that an electrician in the garage, even "doing electrical work" as deposed to by Mr Ntais, was not engaged in "works exempt pursuant to [the Codes SEPP]". There is no evidence as to precisely the work that was being undertaken.
In relation to the garage door, again, while I accept the evidence of Mr Ntais and having closely considered the photographic evidence recording his observations, I am not satisfied beyond reasonable doubt that the garage door had in fact been "replaced" (although my own observation of the photographs shows a garage door with a slightly different finish). I also have some doubt as to whether the replacement of the garage door itself, without more, is sufficient beyond reasonable doubt to show that there was a breach of the Undertaking given then, the plausible possibility that the door may simply have been cladded, which would likely be caught within cl 2.53 of Subdiv 27 and therefore be exempt.
In relation to the "continuation of the cladding around the roof structure of the garage", I find that the precise extent of this work is unclear. Mr Ntais' evidence, although uncontested, was that the cladding had been continued around the roof structure of the garage and supported by one, somewhat unclear photograph annexed to his affidavit sworn 5 September 2019, which was described as a photograph "of the studio fronting Mortlake Lane". However, the only comparative material to determine the precise extent of the further cladding referred to by Mr Ntais, is that photograph and an earlier photograph taken by another Council officer (who did not give evidence) taken on the morning of 13 August 2019, a day before the Undertaking was given. No dimensions have been provided and although it is clear that some further work appears to have been undertaken, there is no evidence to suggest that the further cladding (which I consider to be not significant) could have been undertaken prior to the giving of the Undertaking. In any event, I am not satisfied beyond reasonable doubt that this further work would not be exempt development.