Cumberland Council v Cando Management and Maintenance Pty Ltd

SOLICITORS: Sparke Helmore (Applicant) Swaab Attorneys (Respondent) File Number(s): 16/150312

Judgment

1. Cumberland Council (the Council) has commenced Class 4 proceedings by summons seeking various declarations and orders in relation to the Respondent's multi-dwelling townhouse development (the development) on Woodville Road Guildford (the Site). That development the subject of development consent JE/01904/03 (the consent) is largely complete. It is unoccupied. No occupation certificate has been issued due to the absence of a construction certificate. The Respondent admits that no construction certificate as required by s 81A(2) of Environmental Planning and Assessment Act 1979 (EPA Act) was obtained. A number of issues potentially arise.
2. The Council's Further Amended Summons seeks the following relief: 1. The Applicant [the Council] seeks the following relief: (a) A DECLARATION that the Respondent, by itself, its servants and/or agents, by: (i) erecting a multi-unit development containing nine townhouses and basement car parking; on land described as Lot 190 in Deposited Plan 1060765 (known as 527 Woodville Road, Guildford) (the Premises) carried out prohibited development for which no development consent was in force in breach of section 4.3 (formerly 76B) of the Environmental Planning & Assessment Act 1979 (the Act). (b) An ORDER that the Respondent demolish the multi-unit development containing nine townhouses and basement car parking on the Premises within 90 days. (c) In the alternative to (1)(b), an ORDER that the Respondent, by itself, its servants and/or agents, be restrained from using the Premises or permitting the Premises to be used for residential purposes until such time as that use is authorised by a development consent and the multi-unit development containing nine townhouses and basement car parking is the subject of a building certificate pursuant to section 149A of the Act. (d) An ORDER that the Respondent pay the Applicant's costs. (e) Any other order that the Court considers appropriate in the circumstances. 2. In the alternative, the Applicant seeks the following relief: (a) A DECLARATION that the Respondent, by itself, its servants and/or agents, by: (i) erecting a multi-unit development containing nine townhouses and basement car parking; on the Premises carried out development otherwise than in accordance with Development Consent JE/01904/03 granted by the Land and Environment Court on 23 July 2004 in proceedings 10175/2004 (the Consent) in breach of section 76A(1)(b) (now s 4.2(1)(b)) of the Act. (b) A DECLARATION that the Respondent, by itself, its servants and/or agents, by erecting a multi-unit development containing nine townhouses and basement car parking on the Premises without first obtaining a construction certificate carried out building work in breach of section 81A(2)(a) (now s 6.7(1)) of the Act. (c) A DECLARATION that the Respondent, by itself, its servants and/or agents, by erecting a multi-unit development containing nine townhouses and basement car parking on the Premises without appointing a principal certifying authority carried out building work in breach of section 81A(2)(b) (now s 6.6(1)) of the Act. (d) An ORDER that the Respondent demolish the multi-unit development containing nine townhouses and basement car parking on the Premises within 90 days. (e) In the alternative to (2)(d), an ORDER that the proceedings be adjourned to permit the Respondent the opportunity to lodge a modification application with the Applicant and, if approved, to obtain a construction certificate for prospective works and to seek an occupation certificate. (f) In the alternative to 2(d) and 2(e), ORDER that the Respondent, by itself, its servants and/or agents, be restrained from using the Premises or permitting the Premises to be used until such time as its use is otherwise regularised. (g) An ORDER that the Respondent pay the Applicant's costs. (h) Any other such order that the Court deems fit to make in the circumstances.
3. Prayer 1 would follow a finding of lapsing of the consent. If the consent has lapsed a breach of the EPA Act arises under s 76A(1)(a) (now s 4.2(1)(a)) and due to changes in the Parramatta Local Environmental Plan (PLEP) the development is prohibited so that the breach arises under s 76B. If the consent has not lapsed and is in force the alleged breach arises under s 76A(1)(b) (now s 4.2(1)(b)) of carrying out development not in accordance with a development consent to which prayer 2 and following is directed.
4. The Council filed Points of Claim as follows: The Parties 1 The Applicant is the local council with responsibility for the local government area of Parramatta City. 2 The Respondent is a company duly incorporated under the Corporations Act 2001 (Cth). 3 Since 9 October 2012, the Respondent has been the registered proprietor of land described as Lot 190 in Deposited Plan 1060765, known as 527 Woodville Road, Guildford (the Premises). The Consent 4 On 23 July 2004, the Land and Environment Court granted consent, subject to conditions, to development application JE/01904/03 for the demolition of an existing dwelling and the erection of a multi-unit development containing nine townhouses and basement car parking on the Premises (the Consent). Lapsing of the Consent 5 In or around May/June 2009, the Respondent, by itself, its servants and/or agents, commenced demolition of an existing dwelling on the Premises (the Demolition Work). 6 The Demolition Work was carried out in breach of the following conditions of the Consent: a. Condition 21: A copy of a Work Method Statement was not provided to the Applicant. b. Condition 22: No Pedestrian and Traffic Management Plan was approved by the Applicant prior to demolition or excavation on the Premises. c. Condition 23: No written notice was given to the Applicant in relation to the commencement of demolition on the Premises. d. Condition 24: No inspection was carried out by the Applicant or the Principal Certifying Authority prior to demolition for the purpose of assessing whether appropriate measures were in place for the handing, storage, transport and disposal of bonded or friable abestos [sic]. e. Condition 27: Any fencing erected was not approved by the Principal Certifiying [sic] Authority as one had not been appointed. f. Condition 29: The Applicant was not notified of the appointment of a Principal Certifying Authority. 7 On 24 July 2009, the Consent lapsed as it had not been lawfully physically commenced. The Building Works 8 In or after December 2012, the Respondent, by itself, its servants and/or agents, commenced construction of the multi-unit development containing nine townhouses and basement car parking on the Premises (the Building Works). 9 The Building Works have been carried out on the Premises in breach of the following conditions of the Consent: (a) Condition 1: Development has not been carried out in accordance with approved plans and without a Construction Certificate. (b) Condition 2: Construction has not been carried out in accordance with the Building Code of Australia. (c) Condition 3: Construction commenced without first obtaining a Construction Certificate. (d) Condition 4: No approval pursuant to section 138 of the Roads Act 1993 has been issued by Roads and Maritime Services. (e) Condition 5: No compliance certificate pursuant to section 73 of the Sydney Water Act 1994 has been obtained. (f) Condition 11: The heavy-duty vehicular crossing has not been constructed in accordance with the Applicant's Standard Plan No. 5426. (g) Condition 13: The intercom system has not been installed to enable visitor access into basement car parking area. (h) Condition 16: No Construction Management Program was submitted to or approved by the Applicant. (i) Condition 29: The Applicant was not notified of the appointment of a Principal Certifying Authority. (j) Condition 30: The approved plans were not submitted to a Sydney Water Quick Check agent or Customer Centre to determine whether the Development would affect Sydney Water's sewer and water mains prior to work commencing. (k) Condition 39: A Waste Data File has not been maintained to record building or demolition contractor details and waste disposal receipts for demolition or construction waste. (I) Condition 40: The required survey certificates have not been obtained at the relevant stages of construction. 10 No Construction Certificate was issued prior to the commencement of the Building Works carried out on the Premises. 11 No Principal Certifying Authority was appointed prior to the commencement of the Building Works on the Premises. Attempts to Regularise 12 On or around 2 June 2015, the Respondent made an application for a Building Certificate pursuant to section 149A of the Environmental Planning and Assessment Act 1979 in relation to the Building Works (the Building Certificate Application). 13 Also on around 2 June 2015, the Respondent made an application to the [sic] modify the Consent pursuant to section 96AA of the Environmental Planning and Assessment Act 1979 (the Modification Application). 14 On 12 June 2015, the Applicant rejected the Building Certificate Application. 15 Also on 12 June 2015, the Applicant rejected the Modification Application. 16 The Applicant therefore seeks the relief set out in the Summons.
5. The Respondent filed its Cross-Summons. The relief sought during the hearing varied from the Cross-Summons as filed. I set out below what is now sought as proposed declarations and orders: 1 A declaration that development consent JE 1904/03 granted by the Land and Environment Court in proceedings 10175/2004 has not lapsed. 2 Cando is to carry out the works described in annexure A within 6 months. 3 The parties are to appoint an independent expert to certify the works carried out in 2 above. The parties are to agree on an expert to carry out the certification within 14 days of the date of these Orders. The expert is to be available to certify the works carried out in 2 above within 28 days of the estimated timeframe for completion of the works. 4 The independent expert agreed by the parties is to certify that the works carried out have been carried out on completion of the works. The certification is to be provided to both parties jointly. 5 The certification of the works set out in 2 above is to take place within 28 days of the notification to the expert that the works have been completed. 6 A declaration in the exercise of the Court's discretion that, after receipt of the certification referred to in 4 above, the existing multi-unit development at 527 Woodville Road Guildford ('the Building') may be occupied without an occupation certificate. 7 Liberty is granted to the parties to restore the matter to the list on 5 days notice to the other should it become necessary to vary the orders in any respect. ANNEXURE A - SCHEDULE OF WORKS
6. The schedule of works was not included in the Respondent's proposed orders. The schedule can be found in the statement of agreed facts (SOAF) below at [12].
7. Although a declaration is sought in prayer 1 that the consent has not lapsed the Respondent's primary submission is that the Court should make no finding on the matter of lapsing of the consent because to do so has no practical utility.
8. During the hearing a Further Amended Cross-Claimant's Points of Claim was filed in court. The additional text is in bold below. 1. At all material times: a. Joseph Refalo was a director and shareholder of the Cross-claimant ("Cando Management"); and b. was responsible for the day to day management of Cando Management. 2. On 23 July 2004 the Land and Environment Court granted consent ("the Consent"), subject to conditions, to development application JE/01904/03 for the demolition of an existing dwelling and the erection of a multi-unit development containing nine townhouses and basement car parking ("the Development") on land known as 527 Woodville Road, Guildford ("the Property"). 3. At the time of the grant of the Consent, the Development was permissible with consent on the Property and subject to a floor space ratio limit of 0.6:1 pursuant to Parramatta Local Environmental Plan 2001. 4. In or around May/June 2009: a) demolition of the existing dwelling was carried out pursuant to the Consent ("the Demolition Work"); and b) the Property was cleared, trees and shrubs were removed, and water was disconnected. Particulars The trees included trees 5, 6, 7, 8, 12, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23 and 25 identified for removal on the Landscape Plan of Abstract Group numbered 0322BA1 revision C which formed part of the Consent. 5. In or about June 2012, Cando Management was considering whether to purchase the Property. 6. On or about 25 June 2012 Cando Management was provided with information concerning the Consent, which included: a. A letter from the Cross-respondent ("Council") dated 29 November 2010 which advised that if demolition works had been carried out prior to 23 July 2009 that the Consent would be considered active. b. Invoices for demolition work which indicated the Demolition Work had occurred in May 2009. c. Aerial photographs of the Property taken on 14 November 2009 which showed enough vegetation re-growth to suggest that the Demolition Work had taken place well before those photographs were taken. 7. Cando Management relied upon this information, including the letter from the Council dated 29 November 2010: a. in forming the view that the Consent had not lapsed; and b. in deciding to purchase the Property. 8. On or about 3 July 2012, Cando Management purchased the Property. The Existing Building 9 In or after December 2012 Cando Management, by itself, its servants and/or agents, commenced construction of a multi-unit development containing nine townhouses and basement car parking on the Property pursuant to the Consent ("the Existing Building"). 10 No construction certificate was obtained prior to the commencement of the erection of the Existing Building. 11 The Existing Building has been constructed generally in accordance with the approved plans referred to in the Development Consent subject to the following differences: a. A minor extension of the building footprint to the east; b. Reconfiguration of the entrance ways to the units along the southern facade; c. Minor adjustments to the building line along the northern facade; and d. The reconfiguration of the basement including an additional storage area. 12 The Existing Building has been constructed in accordance with the following as built plans prepared by Architecture Design Studio Pty Ltd: Drawing Title Drawing No. Issue Date Floor Plans 04 B-010 DC 23/04/2015 Floor Plans 01 B-011 DC 23/04/2015 Floor Plans 02 B-012 DC 23/04/2015 Floor Plans 02 B-013 DC 23/04/2015 FSR Calculations B-014 DC 23/04/2015 Elevations B-020 DC 23/04/2015

13 The Existing Building complies with the floor space ratio control of 0.6:1 which applied at the time the Consent was originally granted. 14 The Existing Building is consistent with the character of the surrounding area. 15 The Existing Building is structurally adequate for: a. the use for which the Consent was originally granted; and b. multi dwelling housing. 16 The Existing Building is substantially: a. fit to be given an occupation certificate; and b. fit to be issued a strata certificate. Attempts to regularise the breaches of the Consent 17 On or about 2 June 2015 Cando Management lodged with the Council: a. An application for a building certificate for the Existing Building; and b. An application to modify the Consent to approve the departures from the approved plans. 18 The Council purported to reject those application [sic] on 12 June 2015. 19 The Council's letter rejecting the application to modify the consent asserted that the consent lapsed because demolition had not lawfully commenced within the relevant period. Existing Building now prohibited under the LEP 20 Under the provisions of the Parramatta Local Environmental Plan 2011 currently in force: a. the Property is zoned R2 Low Density Residential; b. the Development is prohibited; c. the use of the Existing Building for the purpose for which the Consent was granted is prohibited; d. the use of the Existing Building for the purpose of multi dwelling housing is prohibited; e. separate occupation of the dwellings in the Development is prohibited. Lapsing of the Consent 21 The Consent has not lapsed, notwithstanding any alleged failure to comply with conditions relating to the Demolition Work (which is not admitted). 22 Further and in the alternative, if (contrary to what the Council advised in its letter of 14 November 2009) the Consent has lapsed because demolition work was carried out in breach of the conditions of the Consent, the Court would, in the exercise of its discretion, declare that the Consent has not lapsed. … 27 Cando Management relies on the Court's discretion for the relief sought in the cross summons to enable the Existing Building to be occupied and strata-subdivided.

Environmental Planning and Assessment Act 1979

1. The provisions of the EPA Act have been rearranged and renumbered with effect from 1 March 2018. I will refer to the provisions requiring consideration in these proceedings by the numbering system which applied prior to the 1 March 2018 changes.
2. Relevant sections of the EPA Act provide: Part A Development Assessment Division 1 Carrying out of development - the threefold classification … 76A 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. (3), (4) (Repealed) (5) Complying development An environmental planning instrument may provide that development, or a class of development, that can be addressed by specified predetermined development standards is complying development. (6)-(9) (Repealed) 76B Development that is prohibited If an environmental planning instrument provides that: (a) specified development is prohibited on land to which the provision applies, or (b) development cannot be carried out on land with or without development consent, a person must not carry out the development on the land. … Division 2 The procedures for development that needs consent … 81A Effects of development consents and commencement of development (1) Erection of buildings A development consent that enables the erection of a building is sufficient to authorise the use of the building when erected for the purpose for which it was erected if that purpose is specified in the development application, subject to section 109M. … (2) The erection of a building in accordance with a development consent must not be commenced until: (a) a construction certificate for the building work has been issued by the consent authority, the council (if the council is not the consent authority) or an accredited certifier, and (b) the person having the benefit of the development consent has: (i) appointed a principal certifying authority for the building work, and (ii) notified the principal certifying authority that the person will carry out the building work as an owner-builder, if that is the case, and (b1) the principal certifying authority has, no later than 2 days before the building work commences: (i) notified the consent authority and the council (if the council is not the consent authority) of his or her appointment, and (ii) notified the person having the benefit of the development consent of any critical stage inspections and other inspections that are to be carried out in respect of the building work, and (b2) the person having the benefit of the development consent, if not carrying out the work as an owner-builder, has: (i) appointed a principal contractor for the building work who must be the holder of a contractor licence if any residential building work is involved, and (ii) notified the principal certifying authority of any such appointment, and (iii) unless that person is the principal contractor, notified the principal contractor of any critical stage inspections and other inspections that are to be carried out in respect of the building work, and (c) the person having the benefit of the development consent has given at least 2 days' notice to the council, and the principal certifying authority if that is not the council, of the person's intention to commence the erection of the building. ... (7) Penalty for contravention of subsection (2) or (4) The maximum penalty that may be imposed for a contravention of subsection (2) or (4) is 1,000 penalty units. … Division 7 Post-consent provisions 95 Lapsing of consent (1) A development consent lapses 5 years after the date from which it operates. ... (4) Development consent for: (a) the erection of a building, or (b) the subdivision of land, or (c) the carrying out of a work, does not lapse if building, engineering or construction work relating to the building, subdivision or work is physically commenced on the land to which the consent applies before the date on which the consent would otherwise lapse under this section. (5) Development consent for development other than that referred to in subsection (4) does not lapse if the use of any land, building or work the subject of that consent is actually commenced before the date on which the consent would otherwise lapse. ... (7) The regulations may set out circumstances in which work is or is not taken to be physically commenced for the purposes of this section. … Part 4A Certification of development Division 1 Certification of work and other matters … 109F Restriction on issue of construction certificates (1) A construction certificate must not be issued with respect to the plans and specifications for any building work or subdivision work unless: (a) the requirements of the regulations referred to in section 81A (5) have been complied with, and (b) any long service levy payable under section 34 of the Building and Construction Industry Long Service Payments Act 1986 (or, where such a levy is payable by instalments, the first instalment of the levy) has been paid. (1A) A construction certificate has no effect if it is issued after the building work or subdivision work to which it relates is physically commenced on the land to which the relevant development consent applies. … 109H Restrictions on issue of occupation certificates (1) There are two kinds of occupation certificates, as follows: ... (b) a final occupation certificate that authorises a person to commence occupation or use of a new building, or to commence a new use of a building resulting from a change of building use for an existing building. ... (5) A final occupation certificate must not be issued to authorise a person to commence occupation or use of a new building unless: (a) a development consent or complying development certificate is in force with respect to the building, and (b) in the case of a building erected pursuant to a development consent but not a complying development certificate, a construction certificate has been issued with respect to the plans and specifications for the building, and (c) the building is suitable for occupation or use in accordance with its classification under the Building Code of Australia, and (d) such other matters as are required by the regulations to be complied with before such a certificate may be issued have been complied with. … 109M Occupation and use of new building requires occupation certificate (1) A person must not commence occupation or use of the whole or any part of a new building (within the meaning of section 109H) unless an occupation certificate has been issued in relation to the building or part. Maximum penalty: (a) in the case of a class 1a or class 10 building, as referred to in the Building Code of Australia - 5 penalty units, or (b) in the case of any other building - 1,000 penalty units. ... … Part 6 Implementation & enforcement Division 3 Orders of the Court … 123 Restraint etc of breaches of this Act (1) Any person may bring proceedings in the Court for an order to remedy or restrain a breach of this Act, whether or not any right of that person has been or may be infringed by or as a consequence of that breach. ... 124 Orders of the Court (1) Where the Court is satisfied that a breach of this Act has been committed or that a breach of this Act will, unless restrained by order of the Court, be committed, it may make such order as it thinks fit to remedy or restrain the breach. (2) Without limiting the powers of the Court under subsection (1), an order made under that subsection may: (a) where the breach of this Act comprises a use of any building, work or land - restrain that use, (b) where the breach of this Act comprises the erection of a building or the carrying out of a work - require the demolition or removal of that building or work, or (c) where the breach of this Act has the effect of altering the condition or state of any building, work or land - require the reinstatement, so far as is practicable, of that building, work or land to the condition or state the building, work or land was in immediately before the breach was committed. (3) Where a breach of this Act would not have been committed but for the failure to obtain a consent under Part 4, the Court, upon application being made by the defendant, may: (a) adjourn the proceedings to enable a development application to be made under Part 4 to obtain that consent, and (b) in its discretion, by interlocutory order, restrain the continuance of the commission of the breach while the proceedings are adjourned. (4) The functions of the Court under this Division are in addition to and not in derogation from any other functions of the Court. (5) Nothing in this section affects the provisions of Division 3 of Part 3 of the Land and Environment Court Act 1979. …

Land and Environment Court Act 1979

1. Relevant sections of the Land and Environment Court Act 1979 (the Court Act) provide: Part 3 Jurisdiction of the Court Division 1 General … 20 Class 4 - environmental planning and protection, development contract and strata renewal plan civil enforcement (1) The Court has jurisdiction (referred to in this Act as "Class 4" of its jurisdiction) to hear and dispose of the following: … (2) The Court has the same civil jurisdiction as the Supreme Court would, but for section 71, have to hear and dispose of the following proceedings: (a) to enforce any right, obligation or duty conferred or imposed by a planning or environmental law, a development contract or a strata renewal plan, (b) to review, or command, the exercise of a function conferred or imposed by a planning or environmental law, a development contract or a strata renewal plan, (c) to make declarations of right in relation to any such right, obligation or duty or the exercise of any such function, (d) whether or not as provided by section 68 of the Supreme Court Act 1970 - to award damages for a breach of a development contract. … (3) For the purposes of subsection (2), a planning or environmental law is: (a) any of the following Acts or provisions: … Environmental Planning and Assessment Act 1979, ... as respectively in force at any time, whether before, on or after 1 September 1980. … 22 Determination of matter completely and finally The Court shall, in every matter before the Court, grant either absolutely or on such terms and conditions as the Court thinks just, all remedies to which any of the parties appears to be entitled in respect of a legal or equitable claim properly brought forward by that party in the matter, so that, as far as possible, all matters in controversy between the parties may be completely and finally determined and all multiplicity of proceedings concerning any of those matters may be avoided. 23 Making of orders The Court has power, in relation to matters in which it has jurisdiction, to make orders of such kinds, including interlocutory orders, as the Court thinks appropriate.

Statement of agreed facts

1. The parties agreed a SOAF (tabs omitted) as follows: THE PARTIES The Applicant/Cross-respondent 1. The Applicant (Council) is the local council with responsibility for land described as Lot 190 in Deposited Plan 1060765 and known as 527 Woodville Road, Guildford (Site). 2. On the site is located a multi-unit building containing nine townhouses over basement parking (Building Works / Building). 3. The Site was previously within the local government area of Parramatta City Council, which was the original Applicant in these proceedings. 4. Clause 18 of the Local Government (City of Parramatta and Cumberland) Proclamation 2016 provides: Anything done or omitted to be done by a former council and having any force or effect immediately before the amalgamation day continues to have effect as if it had been done or omitted to be done by the new council. 5. Clause 37 of the Proclamation authorises the continuation of legal proceedings. 6. A copy of the Proclamation is at Tab 1. The Respondent/Cross-claimant 7. The Respondent (Cando) is a company duly incorporated under the Corporations Act 2001. 8. Mr Joseph Refalo is the Director and Secretary of Cando as well as a shareholder. Julie Refalo (Mr Refalo's wife) and Andrew Refalo (Mr Refalo's son) are also directors and shareholders of Cando. A copy of a company search for Cando is at Tab 2. He is responsible for the day to day management of the company. THE DEVELOPMENT CONSENT 9. On 23 July 2004, in proceedings 10175 of 2004, the Land and Environment Court of NSW granted development consent subject to conditions, to development application JE/01904/03 for the demolition of an existing dwelling and the erection of a multi-unit development containing nine townhouses over basement car parking (Consent). A copy of the Consent is at Tab 3. PLANNING CONTROLS 10. At the time the Consent was granted, the land was zoned Residential 2B under Parramatta Local Environmental Plan 2001. The approved development was permissible with consent on the Site and subject to a floor space ratio control of 0.6:1. A copy of an extract of the Land Use Table and the zoning map are at Tab 4. 11. On 7 October 2011, Parramatta Local Environmental Plan 2011 was gazetted and the land is now zoned R2 Low Density Residential under that planning instrument. Multi dwelling housing is prohibited on land zoned R2. A copy of an extract of the Land Use Table and the zoning map are at Tab 5. 12. Under provisions of Parramatta Local Environmental Plan 2011: (a) The erection of the Building is prohibited; (b) The use of the Building for the purpose for which the Consent was granted is now prohibited; (c) The use of the Building for the purpose of multi-dwelling housing is now prohibited. DEMOLITION WORKS 13. On or around 7 May 2009, Samaan Demolition and Excavation Pty Ltd (Samaan) provided a quote for demolition works to Ziya Mert Okumus, the previous registered proprietor of the Site, to undertake demolition of the structures and to remove the debris from the Site. A copy of the quote is at Tab 6. 14. On or around 21 June 2009, an invoice was issued for the demolition works by Samaan. A copy of that invoice is at Tab 7. 15. By letter dated 29 November 2010, Parramatta City Council (the relevant local government at that time) wrote to I & T Solicitors regarding the status of the Consent. That letter confirms the terms of s. 95(4) of the EP&A Act and advises: …condition 23 of the Court approval states: 23. A minimum of five (5) working days prior to the any demolition work commencing a written notice is to be given to Parramatta City Council…' Council does not hold records that confirm that demolition or preparatory works commenced on site, prior to 23 July 2009. On this basis, prior to the issue of any construction certificate, the principal certifying authority would need to be satisfied that demolition and or [sic] other preparatory works occurred prior to 23 July 2009. If demolition works were carried out prior to 23 July 2009 and in accordance with the decision of the Land and Environment Court in Smith v Wyong Shire Council (2008) it is advised that the consent would be considered to be operative. A copy of the Council letter is at Tab 8. 16. There is no evidence of any of the following having been prepared/undertaken by any person prior to demolition works being commenced: (a) Work Method Statement required by Condition 21 of the Consent; (b) Pedestrian and Traffic Management Plan required by Condition 22 of the Consent; (c) notification of demolition work required by Condition 23 of the Consent; (d) inspection required by Condition 24 of the Consent. CANDO'S PURCHASE OF THE SITE 17. On or about 9 October 2012, Cando became the registered proprietor of the Site. CONSTRUCTION WORKS 18. Shortly after the settlement of Cando's purchase, Cando engaged Architectural Design Studio to prepare a Construction Certificate to carry out the development on the Site. 19. In or after July 2013, Cando (via contractors) commenced construction of a multi-unit development containing nine townhouses and basement car parking on the Site (the Building Works). 20. On or around 9 April 2013, Cando paid the long service levy and development contributions pursuant to s. 94 of the EP&A Act (as it then was). Copies of the receipts are at Tab 9. 21. There is no evidence of any of the following having been obtained/prepared/undertaken by any person prior to the Building Works being carried out: (a) Construction Certificate as required by Condition 3 of the Consent (and s. 6.7(1) (previously s. 81A(2)(a)) of the EP&A Act Act); (b) appointment of a Principal Certifying Authority required by Condition 29 of the Consent; (c) notification of intention to erect a building required by Condition 29 of the Consent; (d) Public Risk Insurance as required by Condition 34 of the Consent; (e) records of critical inspections by the PCA. NON-COMPLIANCES WITH APPROVED PLANS 22. The plans approved by the Consent are at Tab 10. 23. The works-as-executed plans are at Tab 11, and generally reflect what has been built. The building is almost complete. 24. The Building Works were not carried out in entirely in accordance with approved plans (as required by Condition 1 of the Consent) or the Building Code of Australia (now the National Construction Code) (BCA) as required by Condition 2 of the Consent. 25. On 17 October 2017, Cando was released by the Court from its undertaking to the Court on 8 February 2016 to the extent necessary to carry out the work referred to in the report of its BCA consultant, Mr Vic Lilli, dated 10 March 2017. Stormwater 26. As at 17 October 2017, the site stormwater management system as constructed did not conform to the requirements of the Consent or the Council controls as they applied at the time of the Consent as follows: (a) the basement stormwater is pumped to Lough Avenue rather than to Woodville Road; (b) the basement stormwater is collected in a pumping well (or tank) which is located towards the north-eastern end of the basement rather than at the south-western end indicated on the approved plans; (c) The approved on site detention (OSD) is located to the east of Unit 9 with the discharge control pits in the north east corner of the site, while the as built survey shows the OSD in the east then wrapping around into the area north of Unit 9; (d) the diameter of the stormwater pipe which discharges the Site's stormwater through 56 Lough Avenue is 150mm. This is inconsistent with the diameter 225mm specified on the approved plans; (e) the arrangement of the "high early discharge control pit" and the "100mm wide overflow weir wall" shown on the approved plans differ from the system that has been constructed. 27. The works referred to in Annexure A are adequate to provide for the proper disposal of stormwater from the built development. Town planning 28. As at 17 October 2017, the Building Works did not conform with the plans approved by the Consent as follows: (a) Basement car parking level i. The basement has been extended to provide storage areas under units 1 and 2; ii. A reconfiguration of stairs leading to the units has also taken place; (b) Ground floor level i. An increase to unit 9 by approximately 2.365m to the east (approximately an additional 23m2 each floor); ii. An increase to unit 8 approximately 900mm to the north (approximately an additional 2.2m2); iii. An increase to all units along the southern elevation by up to approximately 800mm; iv. Changes to the internal layouts of each unit. (c) First floor level i. There has been an increase in floor space commensurate with the increase of the ground floor but there has been no increase in the number of bedrooms; ii. The approved plans showed a ladder hatch in units 2-7 to allow access to roof storage. These have been removed from the as built plans; iii. Changes to the internal layout of the units, including the provision of an ensuite to units 1-7. (d) Elevations i. West • The textured finished panel underneath the first floor window has been replaced by a full brick feature wall. • The textured panel to the first floor has been replaced by extending the plain rendered finish to full height. • A horizontal element has been removed. • The slot window to the first floor bathroom in the textured finish panel has been replaced by a standard window to the ensuite. ii. East • Vertical elements, particularly the face brick and textured feature wall have been removed. iii. North • Minor changes have been made to the massing of the vertical elements resulting from the change in floor space units 8 and 9. • Windows have been changed as a result of amendments to the floor plans. iv. South • Changes have been made to the massing of the vertical elements and windows resulting from the change in floor plans. In particular, the slot windows in the vertical brick feature panels have been replaced by larger windows in some cases, and in others the slot window has been moved off centre. • Architectural elements have been removed from the southern elevation of unit 1, particularly the brick feature panel. • The approved plans showed cement rendered walls to the driveway which have been replaced with panelling. (e) Landscaping i. The landscaping plan showed a stencilled concrete driveway, however, a plain concrete driveway has been provided; ii. The landscaping plan calls up the architectural plans which show a face brick wall on the street boundary. The original rendered retaining wall has been kept; iii. The timber courtyard fence fronting the street and set back off the boundary has been replaced by a colorbond fence on the boundary; iv. The landscaping plan shows a meandering path which has been replaced by a straight path; v. The turning bay has been increased in size which makes the turning bay more functional but reduces the landscaping treatment in front of unit 1. Building Code of Australia 29. As at 17 October 2017, the Building Works did not conform with the BCA as required by the Consent as follows: (a) The carpark entrance did not achieve a clearance of 2.2m (BCA clause F3.1; AS2890.1); (b) Plumbing and mechanical services to the basement level reduced the head height clearance to a maximum of 2050mm (BCA clause F3.1; AS2890.1); (c) Copper water pipes penetrating through the reinforced concrete slap [sic] to the car park level were unsealed (BCA clause C3.15) (d) There was a PVC pipe passing though the fire rated wall separating the store room and car park to town house 1 (BCA clause C3.15); (e) Electrical conduit passing through the fire rated wall separating the store room and car park to town houses 2, 3, 4 (BCA clause C3.15); (f) The hose reel to the car park was not located within 4m of an exit (BCA clause E.1.4); (g) The top riser to the stair from the basement to ground floor level to townhouse 1 was inconsistent with the remainder of the flight (BCA clause D2.13); (h) The top riser and tread to the eastern egress stair from the basement to ground floor level was inconsistent with the remainder of the flight (BCA clause D2.13); (i) The stairway serving from the basement car park to ground floor level contained 4 winders instead of a maximum of 3 winders to townhouses 2, 3, 5, 6 and 7 (BCA clause D2.13); (j) The stairways serving from the basement car park to ground floor level contained inconsistent riser heights and treads to townhouses 4, 8 and 9 (BCA clause D2.13); (k) The egress stairs to the basement car park were not provided with a contrasting strip (AS1428.1-2009, clause 11); (l) The windows to the bedrooms in townhouses 1 to 9 inclusive were capable of opening to greater than 125mm (BCA clause D2.16) (m) The handrail to the stairways serving from the basement car park level and ground floor and ground floor to level 1 did not extend to the top riser in townhouses 1 to 9 inclusive (BCA clause D2.17); (n) The western exist [sic] from the basement level was provided with cylindrical style door hardware (BCA clause 2.21); (o) A fire hydrant system had not been provided to the development (BCA clause E1.3; AS2419.1-2016); (p) Portable fire extinguishers had not been provided to the development (BCA clause E1.6; AS2444-2001); (q) The exit sign to the eastern exist [sic] was not visible from all points of the basement level (BCA clause E4.7; AS2293.1-2005); (r) Permanent electrical supply had not been provided to the development (BCA Parts E and F); (s) Evidence of water penetration to the bedrooms of townhouses 1 to 9 inclusive (BCA Performance Requirement FP1.4); (t) Breach of damp-proof course to ground and level 1 (BCA Performance Requirement FP1.4); (u) Non-compliant termite treatment (BCA Performance Requirement BP1.1); (v) Non-compliant weepholes (BCA Performance Requirement BP1.1); (w) Non-compliant waterproofing of planter boxes (AS4654.2) (x) There was no emergency lighting installed in the car park, which exceeds 500m2 in area (BCA clause E4.2 requires emergency lighting for areas of 300m2); (y) The sewer overflow gully was located in the driveway and was raised above the ground and not protected from damage. It was also located under the edge of the building above and would run directly into the stormwater system at garage level (AS3500.0 clause 4.6.6.4); (z) The roof water discharged directly to the planter boxes which were not designed to receive the flows (BCA F1.1; AS3500.3); (aa) The rear pergola of each townhouse was not adequately tied down to the brick pier (BCA clause B1.4; AS 1720.1 or AS1684.2). 30. These issues can be satisfactorily resolved if the works referred to in Annexure A are carried out. STRUCTURAL ISSUES WITH THE BUILDING WORKS 31. The following issues have been identified with the structure of the Building Works carried out to date on the Site: (a) The ground floor slab requires some strengthening to ensure compliance with Australian Standards; (b) The circular column in the basement is currently inadequate if the column is subjected to fire loading; (c) Seeping cracks are present in the basement; (d) Honeycombing is present in the slab; (e) The level of compaction beneath the external walkway cannot be confirmed; (f) The beam over the window in townhouse 9 is insufficient; (g) There are insufficient weepholes in the shotcrete walls in the basement; (h) The steel beam between townhouse 8 and 9 are [sic] not continuous. The beam is supported by a brick wall over the window which is supported by a concrete lintel. 32. These structural issues can be satisfactorily resolved if the works referred to in Annexure A are carried out. OTHER CONDITIONS OF CONSENT 33. The following further conditions of the Consent have not been complied with: (a) Condition 29: The Applicant was not notified of the appointment of a Principal Certifying Authority. REQUIRED WORKS 34. On carrying out the works set out in Annexure A: (a) The building will be fit for occupation and use as a multi-unit development; (b) The building will be fit for strata subdivision to create a separate lot for each dwelling; (c) The building will be suitable for occupation and use in accordance with its classification under the Building Code of Australia (including those provisions relevant to fire safety) (d) Having regard to the circumstances of the case and the public interest, a strata subdivision to create a separate lot for each dwelling in the Building will not interfere with the existing or likely future amenity of the neighbourhood (e) The structural strength and load-bearing capacity of the Building will be appropriate to the proposed use of the Building. (f) The measures to protect persons using the building, and to facilitate their egress from the Building, in the event of fire, will be appropriate to the proposed use of the building (g) The measures to restrict the spread of fire from the building to other buildings nearby will be appropriate to the proposed use of the building (h) The building will comply with the Category 1 fire safety provisions applicable to the Building's proposed use. 35. The land on which the building is located is not the subject of an outstanding order, requirement or notice, other than these proceedings. DISCRETIONARY MATTERS Town planning matters 36. The FSR of the development as constructed is 0.59:1. The development does not comply with the current applicable FSR control (0.5:1), however, it does comply with the FSR control that applied when the Consent was granted (0.6:1). The exceedance of FSR is not discernible from the public domain or from adjoining land, nor does it result in any amenity impacts on the residents or adjoining neighbours. 37. The development as constructed complies with the maximum building height that applies to the Site (9m). 38. The development is not out of character in the locality. 39. The development is of a similar scale to other developments in the neighbourhood. 40. Demolition of parts of the development to achieve strict numerical compliance would not result in a development which achieved a better level of amenity for future residents or the adjoining properties. 41. The parties' planners, Glenn Apps and Michael Brewer, are both concerned about the waste of resources (such as building materials) that would result from the demolition of the development. The planners agree that the development has been built contrary to the current zoning and with an exceedance of the FSR. They agree that the planning issues at hand would be better dealt with by rectification works, rather than demolition. They have agreed on works that could be carried out to improve the presentation and practicalities of the development. These are included in the works listed in Annexure A. Matters personal to Cando and the Refalos 42. Mr Refalo is a director and/or secretary of the companies listed below: (a) Smythe Street Pty Ltd - appointed 18 February 2014 (b) Refalo Family Investments Pty Ltd - appointed 18 February 2014 (c) NSW Developers Pty Ltd - appointed 16 April 2013 (d) Thirty Four Smythe Street Pty Ltd - appointed 22 May 2015 (e) Superquest Pty Ltd - appointed 29 June 2015 (f) Bursill Street Pty Ltd - appointed 18 February 2014 (g) Smythe Street Investment Pty Ltd - appointed 9 May 2014 43. Through those companies, Mr Refalo has or had an interest in the properties identified below. However, in each case the interest was acquired after the commencement of construction of the Building on the Site. (a) 8-12 Good Street, Westmead (b) 171 Pitt Street, Merrylands (c) 34 Smythe Street, Merrylands (d) 80 and 84 Bursill Street, Guildford (these properties have been sold) (e) 24 Smythe Street, Merrylands (this property has been sold). ATTEMPTS TO REGULARISE 44. On or around 2 June 2015, Cando made an application for a Building Certificate pursuant to section 149A (as it then was) of the EP&A Act in relation to the Building Works. 45. Also on or around 2 June 2015, Cando made an application to modify the Consent pursuant to section 96AA (as it then was) of the EP&A Act. 46. On 12 June 2015, Parramatta City Council rejected the building certificate application. A copy of the letter of rejection is at Tab 12. 47. Also on 12 June 2015, Parramatta City Council rejected the modification application. A copy of the letter of rejection is at Tab 13. 48. On 31 March 2016 Cando lodged a Development Application to change the use from a new townhouse construction to a boarding house. 49. On 6 October 2016 the Council refused the Development Application for the proposed change of use. 50. On 27 April 2017 Cando lodged a further application for a building certificate. This building certificate remains undetermined. ANNEXURE A - SCHEDULE OF WORKS A. Drainage: 1. Carry out drainage works in accordance with the plans of Martens & Associates Pty Ltd numbered: a) PS01-E100 revision D dated 23/2/18; b) PS01-E200 revision C dated 7/2/18; c) PS01-E201 revision B dated 7/2/18; and d) PS01-E600 revision A dated 17/1/18. B. Planning 1. Set the front fence back in line with the front wall of the Building. 2. The front fence is to be of masonry construction or masonry piers and timber infill panels which may comprise lapped and capped timber palings. 3. Provide landscaping in front of the front fence one metre in depth comprising selected local area native species. The depth of the landscaping is also subject to the need for any necessary water/firefighting infrastructure. 4. The existing retaining wall on the boundary is to be removed and replaced with a new brick retaining wall in accordance with the approved plans referred to in the Consent. 5. A stencilled or textured finish is to be applied to the driveway between the front boundary and the building line. No finish is to be applied to the car park ramp to ensure that vehicles retain traction. 6. The western and eastern elevations will be treated as follows: a) Weatherproof capping to be applied to the parapet down to the eave level; b) The brick corner element to Unit 1 will be painted and rendered with a textured surface, which will be applied full-height from the ground level, wrapping around the southern elevation of Unit 1; and c) The ground floor level of the eastern elevation to Unit 9 will be painted in a darker tone. 7. Vertical timber screens are to be provided to all air-conditioning units on the southern elevation. C. Building Code of Australia 1. Not used. 2. Provide a striker bar and signage in accordance with clause 5.3 of AS2890.6 to indicate the available height to the car park. 3. The copper water pipes penetrating through the reinforced concrete slab to the car park level are unsealed: Suitably seal the copper pipe water penetration with an approved fire sealant in accordance with the manufacturer's details. 4. There is a PVC Pipe passing through the fire rated wall separating the store room and car park to Townhouse 1: Provide a retro fit fire collar around the entire pipe to both sides in accordance with the manufacturer's details. 5. Electrical conduit passing through the fire rated wall separating the store room and car park to Townhouses 2, 3, 4: Suitably seal the cable penetration with an approved fire mastic. 6. The hose reel to the car park is not located within 4m of an exit: Provide a hose reel within 4m of both the east and western exits in accordance with AS2441-2016. 7. The top riser to the stair from the basement to ground floor level to Townhouse 1 is inconsistent with the remainder of the flight: Rectify the riser height to ensure the riser has a variation of no more than +/- 5mm between adjacent risers and no more than 10mm variation throughout the flight. 8. The top riser and tread to the eastern egress stair from the basement to ground floor level is inconsistent with the remainder of the flight: Rectify the riser height to ensure the riser has a variation of no more than +/- 5mm between adjacent risers and no more than 10mm variation throughout the flight. 9. The stairways serving from the basement car park to ground floor level contain 4 winders in lieu of a maximum of 3 winders to Townhouses 2, 3, 5, 6 and 7: Reconfigure the stairway to ensure the stairs contain a maximum of 3 winders. 10. The stairways serving from the basement car park to ground floor level contain inconsistent riser heights and treads to Townhouses 4, 8 and 9: Rectify the riser height to ensure the riser has a variation of no more than +/- 5mm between adjacent risers and no more than 10mm variation throughout the flight. 11. The egress stairs to the basement car park are not provided with a contrasting strip: Provide a 50mm to 75mm contrasting strip having a minimum 30% luminance contrast to each tread to the stairways. 12. The windows to bedroom Townhouses 1 to 9 inclusive are capable of opening greater than 125mm: Relocate the existing window stopper to ensure the maximum opening to the window does not exceed 125mm. 13. The handrail to the stairways serving from the basement car park level and ground floor and from ground floor to Level 1 does not extend to the top riser for Townhouses 1 to 9 inclusive: the handrail is to be extended to terminate at the top riser of the stairways. 14. The western exit from the basement level is provided with cylindrical style door hardware: Replace the door hardware with a downward lever action type. 15. A fire hydrant system has not been provided to the development: Install a hydrant system in accordance with AS2419.1-2005 or as approved in writing by Fire & Rescue NSW. 16. Provide portable fire extinguishers in accordance with BCA clause E1.6 and AS24444-2001. 17. The exit sign to the eastern exit is not visible from all points of the basement level: Provide direction exit signs to the eastern side of the basement level to identify the location of the exit. 18. Provide permanent electrical supply to ensure all electrical and mechanical services are capable of functioning in accordance with the relevant Australian Standards. 19. There is evidence of water penetration to the bedrooms to Townhouses 1-9 inclusive (including flashing above windows): Provide appropriate capping and flashings to the brick parapets to prevent water penetration to the townhouses. One of the following rectification solutions is required to rectify the defect: a) Provide a colourbond metal flashing to the top, rear and sides of the brickwork parapet; or b) Render and paint the face of the parapet with a waterproof epoxy based paint in accordance with clause 4.7.4 of AS3700-2011, or c) Provide a full weatherproof cladding system to cover the brickwork on all sides. 20. Damp proof course to ground and level 1: The following scope of works is required: a) The render to the external wall is to be modified to ensure the render does not breach the damp-proof course in accordance with clause 12.4.16 of AS3700-2011. b) The render to the external wall at the ground floor level is to be saw cut to ensure the render does not breach the damp-proof course. 21. Termite treatment: To ensure the building achieves compliance with AS3660.1 with respect to termite treatment the following works are required: a) Ensure the brickwork is exposed for a minimum of 75mm below the weepholes in accordance with Section 4 of AS3660.1. b) No garden beds or planter boxes are to encroach onto this 75mm exposed inspection zone. The front garden bed is to be reduced in height by approximately 1.2m on the right hand side. c) Install a cavity reticulation system to the rear and northern side of unit 9 where the building is supported on strip footings with no exposed slab edge. 22. The Weepholes as constructed on site vary between drilled holes where the external wall has been rendered to open perpends in the face brickwork: To ensure compliance with AS3700-2011: a) Weepholes are to be provided at a maximum distance of 1200mm. b) All drilled weepholes are to extend the full depth of the brickwork and be free of any material to ensure the proper functioning of the weephole. 23. Not used. 24. Planter box waterproofing: The waterproofing to the planter boxes is to be applied in accordance with the requirements of AS 4654.2. 25. Certification is to be provided that the commitments within the BASIX Certificate No. 627863M_02 dated 19 January 2018 have been met. 26. Not used. 27. Not used. 28. The sewer overflow gully is located in the driveway and is raised above the ground and not protected from damage: The overflow from the sewer is not permitted to enter the stormwater system and therefore the gully will need to be provided with a sealed lid. An additional overflow gully is to be provided within the courtyard to Townhouse 1 to ensure any overflow is discharged on to the premises. 29. The downpipe to the front entry porch is to be modified to discharge into the adjacent downpipe of the main roof area. 30. Pergolas are not adequately tied down to the brick piers: mechanical fixings are to be provided to the timber members to prevent the timber members from being dislodged from the brick piers. D. Structural Engineering 1A. The following rectification works are to be carried out in accordance with the drawings of Australian Consulting Engineers numbered: • S0000 revision C dated 8/3/18; • S0001 revision B dated 27/11/17; • S0002 revision B dated 27/11/17; • S0100 revision E dated 8/3/18; • S0101 revision E dated 8/3/18; • S0200 revision E dated 22/1/18; • S0201 revision B dated 27/11/17; • S0300 revision D dated 22.1.18; • S0301 revision B dated 14/12/17; • S0302 revision B dated 8/3/18; • S0400 revision B dated 27.11.17. 1. Screen the slab using an X-ray machine to obtain more clarity on the reinforcement used in the pad footing (shown between gridlines 4 and 5 on drawing S0100 revision E). In the event that the outcome from the slab screening is not adequate, the pad footing is to be replaced. The Respondent's engineer shall design a new pad and is to provide a full work method statement to the independent expert appointed by the parties on the procedures to be undertaken to replace this pad footing. 2. The ground floor slab is to be strengthened so as to comply with the Australian Standards as follows: a) Inducta Engineering, or another third party who is acceptable to the independent expert appointed by the parties, is to be engaged to carry out an independent analysis of the ground floor slab structure, including integral beams and columns. b) Following that analysis, a methodology for strengthening the slab is to be prepared by the Respondent's engineer and provided to expert strengthening contractors that have been agreed between the parties. The expert strengthening contractors are to have suitable practical experience in the design, installation and performance of the proposed rectification methods. c) The strengthening expert is to carry out a full review of the proposed strengthening and provide certification that the strengthening will provide the building with appropriate design safety factors as required by the appropriate standards. As part of the certification, the strengthening expert is to assess the proposed fireproofing methods and certify that the proposed fire proofing methods will adequately protect and ensure satisfactory performance of the carbon fibre strips in the event of a fire. d) The strengthening contractors are to carry out the required strengthening works in accordance with the methodology certified in paragraph 2(c) above. e) Upon completion of the works, the strengthening contractor is to certify that the works have been completed in accordance with the certified methodology and is to confirm that the slab as strengthened complies with Australian Standards. 3. A steel column 200x200x6 SHS C350 is to be installed behind the circular column (in accordance with drawings S0100 and S0101 revision E dated 8.3.18) bearing on a 20mm thick steel plate with 4M16 chemical anchors connecting the steel column to the underside of the ground floor slab and to the base plate. The installation of the additional steel column is dependent on the results of the x-ray required in paragraph 2 above. The eccentricity of loading from both the existing concrete column and the new steel column are to be taken into account in the evaluation of the existing pad footing or the design of the new pad footing (if required). 4. An independent hydraulic engineer must certify that the drainage system in the basement, including sub-soil drainage systems external to the basement walls, is adequate, in order not to jeopardise the structural stability of the basement retaining walls 5. The retaining fire stair wall between grids 2 and 3, along the southern boundary of the site: A 200mm wide retaining wall is to be constructed in front of the existing shotcrete wall and reinforced with N16-200 vertical bars and N12-200 horizontal bars. This will ensure that the wall is capable of resisting surcharge pressures behind the retaining structure. The slab over is to be extended to restrain this retaining wall at a length that ensures minimum head height is complied with in accordance with the Australian Standards. A section of this wall has been detailed in drawing S0100 revision E dated 8/3/18. 6. Reverse waterproof membrane is to be installed to all seeping cracks to ensure future seepage does not occur. 7. Not used. 8. The builder is to ensure all honeycombing is removed and all exposed steel is treated and cleaned/cut back and filled with Rapid Set Go. The builder must ensure it completes the required work in accordance with the specifications outlined therein. 9. The external pavement in the south east corner of the site is to be reconstructed after compaction has been completed satisfactorily. The existing pavement is to be ripped up and the soil beneath compacted to reach 98% compaction. A geotechnical engineer is to inspect the soil and confirm the area has reached 98% compaction before the reconstruction of the existing paved area can commence. 10. The builder is to install a 250PFC and two supporting posts to support the steel beam over the window in Townhouse 9. This is to ensure the beam is supported sufficiently and does not cause issues to the structural integrity of the building. However, if the builder does not wish to install the two posts, the window size may be reduced and brickwork used to support the lintel beam. 11. Weep holes are to be drilled in the shotcrete wall and Dincel walls of the basement level at 1m spacing. 12. Not used. 13. Steel beam between unit 9 and unit 8 is not continuous over the wall. The steel beam extends approximately 75mm-80mm with concrete separating the beam on the other side of the Dincel wall which is approximately 50mm thick. The beam is supported by a brick wall over the window which is supported by a concrete lintel: A BCA consultant is to determine whether any fireproofing requirements apply to the points of bearing of the first floor beams on the Dincel party walls under the BCA. If so, works are to be carried out to ensure those fireproofing requirements are met. 14. Not used.

Affidavit of Mr Refalo

1. The Respondent read the affidavit of Mr Refalo a director and shareholder of the Respondent business affirmed 12 April 2017. Mr Refalo's wife and one of his sons are also directors and shareholders of the Respondent business. The following documents were annexed to Mr Refalo's affidavit: 1. an email from Mr El Dardiry architect with Architectural Design Studio Pty Ltd to Mr Refalo dated 25 June 2012 attaching eight aerial photographs of the Site taken on 14 November 2009; 2. an email from Mr El Dardiry to Mr Refalo dated 25 June 2012 attaching a letter from the Council dated 29 November 2010 and a copy of the consent granted by the Land and Environment Court on 23 July 2004 in proceedings 10175/2004; 3. an email from Mr El Dardiry to Mr Refalo dated 25 June 2012 attaching a quote and invoice for demolition work by Samaan Demolition Excavation Pty Ltd (Samaan) completed at the Site; 4. development consent plans for the Site; 5. a Google street view search of the Site as at December 2007; 6. a quote from Mr El Dardiry for preparing a construction certificate for the Site; 7. an invoice for $20,000 paid to Architectural Design Studio Pty Ltd as a deposit for preparing a construction certificate; 8. an invoice for the remaining amount to be paid to Architectural Design Studio Pty Ltd for preparing the construction certificate; 9. an email dated 13 February 2013 from Mr Refalo to Mr El Dardiry; and 10. copies of receipts for the s 94 contribution and the long service levy paid by the Respondent to the Council.
2. Mr Refalo described a conversation he had with Mr Younan a site foreman who first introduced the Site to Mr Refalo. Mr Younan's father had put a deposit on the Site but was unable to settle on it. The purchase price for the Site would be $820,000. Mr Refalo said he would be interested in purchasing the Site. Mr Younan provided Mr Refalo with the contact details of Mr El Dardiry.
3. Within a few days, Mr Refalo called Mr El Dardiry. They had a conversation in which Mr El Dardiry told Mr Refalo that he was aware that the Site had a development consent. He told Mr Refalo that a letter from the Council stated that if a Principal Certifying Authority (PCA) accepted that demolition occurred within five years, the development consent would not have lapsed. Receipts from Samaan showed that demolition had occurred within the five year period. Aerial photographs of the Site 15 weeks after the lapsing date showed vegetation growth more than 15 weeks old. Mr El Dardiry said he could send the letter, aerial photographs and demolition receipts to Mr Refalo. He also said that he had two private certifiers willing to accept that work had been completed prior to the development consent lapsing. Mr El Dardiry sent three emails on 25 June 2012 attaching the letter, aerial photographs and demolition receipts.

Site view

1. The Court went on a site view of the development on 10 April 2018.

Lapsing of development consent

1. The first issue that arises for consideration is whether the consent had lapsed before purchase of the Site by the Respondent and construction of the development. Whether the consent has lapsed is significant as the Site has been rezoned and the development would now be prohibited under the PLEP (SOAF at pars 11-12). If the consent has not lapsed it is saved by s 109B of the EPA Act.
2. Under s 95(4) a development consent for a building does not lapse if building, engineering or construction work "relating to" the erection of a building (in this case) has been physically commenced on the land to which the consent applies. While demolition and other work was carried out within five years of the grant of consent, at issue is whether this physical commencement was lawful and therefore satisfies "relating to" in s 95(4), a requirement identified by the Court of Appeal in Iron Gates Developments Pty Ltd v Richmond Evans Environmental Society (1992) 81 LGERA 132 at 135 (Handley JA, Mahoney JA and Rogers AJA agreeing); Green v Kogarah Municipal Council (2001) 115 LGERA 231; [2001] NSWCA 123 at [55] (Giles JA, Mason P and Ipp AJA agreeing), Hunter Development Brokerage Pty Ltd v Cessnock City Council; Tovedale Pty Ltd v Shoalhaven City Council (2005) 140 LGERA 201; [2005] NSWCA 169 at [100] (Tobias JA, Santow JA and Stein AJA agreeing) inter alia and more recently K&M Prodanovski Pty Ltd v Wollongong City Council (2013) 195 LGERA 23; [2013] NSWCA 202 (K& M Prodanovski CA) at [12]-[16] (Meagher JA, Leeming JA and Sackville AJA agreeing).

Should the Court entertain this issue at all?

1. The Respondent submitted that the Court should not make a finding or declaration on the question of whether the consent had lapsed because to do so would have no practical effect. If I understand this novel submission correctly I am to set out the parties' legal arguments, that being sufficient consideration for the discharge of my judicial function, but take the matter no further.
2. The Respondent submitted that according to s 20(1)(c) of the Court Act, the Court has jurisdiction to hear and dispose of proceedings under s 123 of the EPA Act. Section 123(1) of the EPA Act provides that "[a]ny person may bring proceedings in the Court for an order to remedy or restrain a breach of this Act, whether or not any right of that person has been or may be infringed by or as a consequence of that breach." This takes the Court to s 124(1) of the EPA Act which states that "[w]here the Court is satisfied that a breach of this Act has been committed or that a breach of this Act will, unless restrained by order of the Court, be committed, it may make such order as it thinks fit to remedy or restrain the breach." Section 124(1) confers a wide discretion upon the Court. The question then is how the Court should seek to remedy the breach in exercising its wide discretion. The Court's power extends to permitting a use of land, in the exercise of its discretion to mould relief which is otherwise unlawful.
3. The development is largely complete and the parties have agreed works (Annexure A to the SOAF) which will render the Site safe and fit for habitation. The Site is fit for purpose and has no adverse environmental impacts on its surroundings meaning there would be no utility in ordering demolition. Indeed the evidence of the parties' town planners (Mr Apps and Mr Brewer) suggests that demolition would be likely to have negative environmental impacts in terms of the waste of building materials and disturbance caused to neighbouring properties by dust. To demolish the development or leave it vacant would be contrary to the objects of the EPA Act including the achievement of ecologically sustainable development, the economic use of land and the sustainable management of built heritage and in particular, the proper management of resources as considered in F Hannan Pty Ltd v Electricity Commission of New South Wales [No 3] (1985) 66 LGERA 306 at 310 (Street CJ). The Court finding that the consent had lapsed would not respond to the practicalities of having a largely complete building which could be rendered fit for use by carrying out the agreed works. No utility is served by considering that the consent has lapsed.

Issue of lapsing of consent should be determined

1. Owing to the failure to obtain a construction certificate, appoint a PCA, give notice of intention to erect a building and provide public risk insurance (SOAF at par 21) the development carried out in 2013 has been built in breach of s 76A(1)(b) of the EPA Act. Separately and more fundamentally, if the consent had already lapsed in 2009 the breach of the EPA Act arises under s 76A(1)(a) being development carried out for which no development consent existed. The development now built would also be prohibited development under s 76B. Any exercise of the Court's discretion to make a declaration and/or consequential orders is vitally informed by the nature of the breach of the EPA Act. This cannot be resolved unless the issue of the lapsing of consent is considered. The legal status of the consent depends on the outcome of that issue.
2. That the Court has wide discretion to mould relief to the circumstances before it is confirmed in the EPA Act, the Court Act and cases such as Hannan at 311 (Street CJ), ACR Trading Pty Ltd v Fat-Sel Pty Ltd (1987) 11 NSWLR 67 at 82 (Kirby P, Samuels JA and Hunt AJA agreeing) and Warringah Shire Council v Sedevcic (1987) 10 NSWLR 335 at 339 (Kirby P) referred to by the Respondent. Significantly, in all these well known cases the Court at first instance determined the legal matter in issue and then decided how it should exercise its discretion in light of the circumstances before it, which included the outcome of the legal issue. Similarly in Lani the Court determined the legal issues before it and only then decided whether to make a declaration. The Respondent essentially relies on discretionary arguments from the outset to argue no resolution of a legal issue should occur. The inappropriateness of such an approach was identified by Hodgson JA (Meagher JA agreeing) in Coalcliff Community Association Inc v Minister for Urban Affairs & Planning (1999) 106 LGERA 243; [1999] NSWCA 317 at [99]. Were I minded to adopt such an approach, which I am not, the exercise of the Court's discretion would arise in a legal vacuum rendering such an exercise difficult as a key parameter would be unknown to the Court.
3. The Respondent relied on all the circumstances identified in Mr Refalo's affidavit and the SOAF to seek to persuade the Court at this stage of the matter not to resolve the real legal issue identified by the Council. It is not appropriate to consider this material at this stage of the proceedings. It may be relevant once clarification of the nature of the breach of the EPA Act is determined.

Has development consent JE/01904/03 lapsed?

1. The consent was granted by the Court on 23 July 2004 (SOAF at par 9). By operation of s 95 of the EPA Act the consent, if not "physically commenced", lapsed on 23 July 2009.
2. According to the Amended Cross-Claimant's Points of Claim filed before the hearing, the Respondent relied on the carrying out of demolition work within five years of the grant of the consent to establish that work had physically commenced. Demolition works are referred to in pars 13-16 of the SOAF as described in the quote for demolition of structures and the removal of debris by Samaan on or around 7 May 2009 extracted at [38]. An invoice for the work is dated 21 June 2009.
3. The Respondent appeared to accept during the hearing that the demolition work was not lawful as required conditions of the consent had not been complied with before it was carried out. It is agreed in par 16 of the SOAF that there is no evidence of any of the following having been prepared or undertaken by any person prior to the demolition works being commenced on Site: 1. Work method statement required by Condition 21 of the consent. 2. Pedestrian and traffic management plan required by Condition 22 of the consent. 3. Notification of the demolition work required by Condition 23 of the consent. 4. Inspection required by Condition 24 of the consent.
4. While the written submission was made by the Respondent that these were minor breaches which would not negate reliance on the demolition work to establish the building was physically commenced, that submission is contrary to authority. The demolition works, while capable of "relating to" the building works, did not because they were not carried out in accordance with the conditions of the consent: see K&M Prodanovski CA and the cases cited therein. It did not appear that the Respondent ultimately relied on that submission, an appropriate course.
5. During the hearing the Respondent identified further work it relied on to demonstrate the consent had not lapsed being the disconnection of water, erection of safety fencing, clearing of the Site, clearing of shrubs and clearing of trees. Most of the work (but not all) was identified in the Further Amended Cross-Claimant's Points of Claim filed with leave in court, set out above in [8]. These items of work are identified in the quote from Samaan set out above in [38]. The invoice from Samaan for work performed at the Site was submitted by the Respondent to give rise to the inference the further work was done.

Council's submissions

1. The Council submitted that the Respondent bears the onus of establishing that the development consent it relies on was lawfully physically commenced. Demolition or other works were undertaken by a contractor on behalf of the previous owner of the Site between 7 May 2009 and 21 June 2009 (SOAF at pars 13-14). The question that arises is whether the further work now relied on was work "relating to" the building work the subject of the consent. The authorities mandate that the answer to this question is "no" because compliance with relevant conditions of consent did not occur before they were carried out.
2. There is no evidence that Condition 44 was complied with before trees were removed. There is no evidence of the contractor's arboriculture qualification or the method of removal. The work is unlawful and cannot be relied on.
3. The Respondent has not demonstrated what physical acts disconnection of water required or when it occurred and cannot prove that it was more than de minimis.
4. The erection of safety fencing is not sufficient to "physically commence" the consent. The erection of a fence is not relevantly "building, engineering or construction work relating to the building, subdivision or work … to which the consent applies" for the purpose of s 95(4) of the EPA Act. There is no evidence as to what purpose was sought to be achieved by the erection of the fencing. There is no evidence that Condition 27 was complied with in relation to the fence given that no PCA was appointed. The work is unlawful and cannot be relied on.
5. In overall answer to the Respondent, Condition 29 of the consent requires the appointment of a PCA and notice of intention to be given in respect of the erection of a building "prior to commencement of work". The erection of safety fencing would constitute "work" under s 4(2) of the EPA Act. "Work" includes "…any physical activity in relation to land that is specified by a regulation to be a work for the purposes of this Act, but does not include a reference to any activity that is specified by a regulation not to be a work for the purposes of this Act." In K&M Prodanovski CA at [33] a condition in identical terms to Condition 29 was found to have been breached when demolition works and geotechnical works were carried out in the absence of compliance with that condition.

Respondent's submissions

1. The consent did not lapse as relevant work commenced on site in May and June 2009 within five years of the consent being granted. The Respondent argued that the Council had the onus of proving the consent had lapsed and had not discharged its onus.
2. In civil proceedings seeking to restrain the use of premises for an unlawful purpose, the onus of proof lies on a respondent to establish the use was authorised as an existing use, see for example ACR Trading Pty Ltd v Fat-sel Pty Ltd at 72 per Kirby P (Samuels JA and Hunt AJA agreeing), following Morris v Woollahra Municipal Council (1966) 116 CLR 23 at 33-34 (Taylor, Menzies and Owen JJ), or a use authorised under s 109B of the EPA Act: Liverpool City Council v Maller Holdings Pty Ltd (2013) 211 LGERA 360; [2013] NSWLEC 154 at [73].
3. However, the situation is different where a council alleges that, even though work was carried out prior to the lapsing date, such work could not have prevented the consent from lapsing because it was carried out in breach of conditions of the consent. Morris followed the decision of the High Court in Vines v Djordjevitch (1955) 91 CLR 512. In that case, the High Court noted that where an enactment denied a right or liability in a particular case "by reason of additional or special facts" the burden of proof was likely to fall on the party seeking to rely on those additional or special facts at 519.
4. Whilst the Respondent bears the onus of establishing building work was carried out prior to the date on which the consent would otherwise have lapsed, it is the Council that bears the onus of proving that such work was unlawful (and therefore could not be relied upon) because the work was carried out in breach of the conditions of consent. That is because these are additional or special facts. The Council has not identified a single case in which the Court has held that a landowner, and not the council, bears the onus of proving a failure to comply with a condition of consent. If that were the case, it could lead to potentially absurd results (for example, a landowner being forced to prove that every condition of a consent issued many years prior had been complied with at a particular point in time). This would, in many cases, be almost impossible. This cannot have been the intention of the legislature. As noted in Vines at 519: In the end, of course, it is a matter of the intention that ought, in the case of a particular enactment, to be ascribed to the legislature.

Consideration of lapsing of consent

1. As identified above in [57], works relied on to establish physical commencement of a consent must be lawful in order for them to be work "relating to" the approved development, here a building.
2. The Council has not disputed that the further work itemised separately to demolition by the Respondent took place within the relevant five year period specified in s 95(1) namely by 23 July 2009 on the Site. Under s 95(4) development consent for the erection of a building does not lapse if building, engineering or construction work "relating to" the building is physically commenced on the relevant land in the required timeframe. Although not stated explicitly I infer that the Respondent relies on the further work as construction work as it cannot be characterised as engineering or building work. At issue is whether that further work was conducted lawfully so that it related to the physical commencement of the building work the subject of the consent (clearing of trees and shrubs, fence); or whether it related to the development the subject of the consent at all (fence); or whether there is evidence of physical work related to the development (water disconnection). Section 95(4) does not refer to demolition work or preliminary work.
3. An important issue to resolve in light of the parties' submissions is who bears the onus of proof on the issue of whether the consent has lapsed. Both parties essentially seek a finding and/or a declaration that the consent has or has not lapsed. The Council seeks a declaration that the development was prohibited because what has been built is not conforming with the PLEP and was built without development consent. The absence of development consent hinges on a finding that the consent has lapsed. The Council as the moving party would ordinarily bear the onus of proof on the balance of probabilities of establishing matters relevant to its case per Upper Hunter Sustainable Industries Association Inc v MACH Energy Australia Pty Ltd (No 2) (2017) 244 LGERA 361; [2017] NSWLEC 87 at [12]. In Dillon v Gosford City Council [1995] NSWCA 124 at 5, Sheller JA (Handley JA agreeing) held citing Drummoyne Municipal Council v Lebnan (1974) 131 CLR 350; [1974] HCA 34 at 360 (Barwick CJ, Menzies, Gibbs, Stephen and Mason JJ) that a council may bear the onus of proving that a development consent had lapsed noting in that case that the appellant (who was seeking to rely on an exception to a prohibition against quarrying which depended on the work commencing within a particular time) bore the onus of establishing that the work had commenced. In Drummoyne Municipal Council v Lebnan a council which sought to restrain respondents from proceeding with a development had the onus of proof "…of establishing the facts necessary to show that the construction which it sought to restrain was not covered by the approval which it had given, or, in other words, the onus of proving that the approval had lapsed" at 360 (Gibbs J, Barwick CJ, Stephen, Menzies and Mason JJ agreeing).

Exercise of discretion to make declaration and order

1. I must now determine whether I should make a declaration and/or orders in the exercise of my discretion. Section 20 of the Court Act specifies the Court's wide jurisdiction in civil enforcement proceedings. Section 22 states that as far as possible all matters in controversy between the parties may be completely and finally determined to avoid multiplicity of proceedings concerning any matters before it. Under s 23 the Court has wide powers to make appropriate orders in relation to any matter in relation to which it has jurisdiction. Its wide powers to make orders as it thinks fit to remedy or restrain a breach under the EPA Act arise from s 124. Section 124(2)(b) refers to making an order for demolition where a breach comprises the erection of a building or the carrying out of work. No application has been made under subs (3) by the Respondent that the proceedings be adjourned to enable a development application to be obtained.
2. The unusual declaration and orders sought by the Respondent are set out in [5] above. The orders sought are to the effect that the works in Annexure A of the SOAF be carried out with independent certification of completion following receipt of which the Court is to make a declaration that the building can be occupied without an occupation certificate.
3. The Council submitted that it was beyond power to make the orders and declaration sought by the Respondent. I agree that the Respondent's orders and declaration give rise to two further breaches of the EPA Act, namely no occupation certificate in breach of s 109M and the building of development not in compliance with a development consent in breach of s 76A. The Council submitted that such orders are not a remedy and the Court does not have power to make them. As the Respondent has unsuccessfully resisted the Council's legal case it is difficult to see how the relief it seeks can be considered, even accepting that the Court has wide discretion. I do not therefore need to resolve this issue.
4. I will determine what remedy if any should be granted on the Council's application. The Council seeks a declaration that a prohibited development in breach of s 76A(1)(b) has been built by the Respondent as the consent has lapsed. The Respondent submitted that as no practical utility can arise from the making of a declaration it should not be made citing Lani at [20].

Costs

1. The usual rule in Class 4 proceedings is that costs follow the event so that the Respondent would be liable for the Council's costs. I have not heard argument about costs. I will make an order for costs to that effect unless a notice of motion seeking another costs order is filed within 14 days of this judgment.

Declaration and orders

1. The Court makes the following declaration and orders: 1. The Court declares that the Respondent, by itself, its servants and/or agents, by erecting a multi-unit development containing nine townhouses and basement car parking on land described as Lot 190 in Deposited Plan 1060765 (known as 527 Woodville Road, Guildford) (the Premises) carried out prohibited development for which no development consent was in force in breach of s 4.3 (formerly s 76B) of the Environmental Planning & Assessment Act 1979 (the Act). 2. The Court orders that the Respondent, by itself, its servants and/or agents, be restrained from using the Premises or permitting the Premises to be used for residential purposes until such time as that use is authorised by a development consent and the multi-unit development containing nine townhouses and basement car parking is the subject of a building certificate pursuant to s 149A of the Act. 3. The Respondent is to pay the Applicant's costs of the proceedings unless a notice of motion seeking a different costs order is filed within 14 days. 4. The exhibits may be returned.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 04 June 2018