Di Francesco and Ors v Blantrix Pty Limited and Ors

Di Francesco and Ors v Blantrix Pty Limited and Ors - [2004] NSWLEC 669 - NSWLEC 2004 case summary — Zoe

[4]

5 Schedule 1 of the Amended Class 4 Application contains the title details for apartments 4301 and 4302 in the building. Schedule 2 of the Amended Class 4 Application lists the following works: · Core drilling · Construction of the rotating dining floor including penetration of concrete to install motor for dining platform · [Jack hammering] · Concrete topping of slabs · Penetrating the floor slab · Construction, plastering and gyprocking of new and existing walls and ceiling · Demolition of masonry walls · Alteration of door openings and installation of doors · Chasing of masonry walls to provide for service connections · Construction of fire places · Building pipe work for sewer, gas and water connections · Tiling of walls and floors and laying of new surfaces to walls or floors other than carpet coverings · Joinery · [Construction of stairs] · [Removal of walls] · Removal and construction of foyer ceilings, walls and partitions · Construction of doorway entrances · [Pouring concrete seating around pools] · [Installation of glass walls and doors] · [Installation of electric screens] · [Construction of plant/shower rooms on level 45] · Construction of reflection pool · [Building works that are likely to create noise and dust for other residents within the building viz. beyond the boundaries of the two units] 6 Three matters were not pressed by the Applicants' counsel in final submissions being the removal of walls, building works likely to create dust and installation of electric screens. Because of my findings in this judgment I consider that certain other matters either cannot be pressed or must be amended to reflect the work carried out or now intended to be carried out. All of the matters which the Applicants did not press or which I consider, for the reasons set out below, that the Applicants cannot press or must be amended are in square brackets above. I will refer to the works set out in Sch 2 of the Amended Class 4 Application collectively as "the works".

[37]

(iv) The Respondents argued that support for the broad construction of the phrase "non-structural alterations" was provided by the examples of exempt development contained in cl 4(a) of Sch 3 of SEPP 60. For example, counsel for the Respondents noted that: (a) "cladding" involves the nailing of wooden boards or the affixing of stone; and (b) "cement rendering" involves the application of cement; to the existing walls of a building and are intended to form part of the permanent structure of a building. The Respondents argued that the specific examples given in cl 4(a) of Sch 3 indicated that the Applicants' argument that "non-structural alterations" extended to cover all alterations or additions to a building, including a fixture attached to a building, which are of a permanent and not de minimis nature. Clause 7(2)(b)(iii) of SEPP 60 (i) The Respondents argued that on its proper interpretation, the prohibition contained in cl 7(2)(b)(iii) of SEPP 60 only applied to those of the categories of development listed in Sch 3 of SEPP 60 which specifically called it up. The Respondents argued that, were this not the case, the phrases: (a) " managed so that there is no interference with the neighbourhood (as identified by clause 7 (2) (b) (iii) of this Policy)" contained at cl 9 of Sch 3 which relates to the home occupation category; (b) " conducted so that there is no interference with the neighbourhood (as identified by clause 7 (2) (b) (iii) of this Policy) " contained at cl 10 of Sch 3 which relates to public meetings; would be meaningless. Accordingly, the Respondents argued that the prohibition contained in cl 7(2)(b)(iii) of SEPP 60 only related to the particular categories of exempt development above and did not have a general application in relation to Sch 3 with the result that it did not operate in relation to cl 4 of Sch 3. (ii) Further, the Respondents argued that the application of c7(2)(b)(iii) of SEPP 60 is to be determined by the person intending to carry out the works at the point where the works are first contemplated. The Respondents argued that once the person intending to carry out the works has determined that the prohibition contained in cl 7(2)(b)(iii) of SEPP 60 does not apply, this ends the matter and the works will be exempt development as long as they also fall into a category identified in Sch 3 of SEPP 60, subject only to review on the grounds of manifest unreasonableness.

[51]

44 In Arlone Lockhart J considered the meaning of the phrase "structural alterations" in the context of a lease. Lockhart J held at par 55 to 60 that: Sometimes it is easy to categorize certain parts of a building as being structural, such as the main walls and roof (Granada Theatres Limited v Freehold Investment Leytonstone) Limited (1959) Ch 592) because even on the narrow view that structural work connotes work to a part of a building that is load bearing or affects the load bearing capacity or the stability of a building, work of this kind would fall within it. Difficulties have arisen in the cases with other features. For example, in Boswell v Crucible Steel Company (1924) 1 KB 119 large plate glass windows 7 1/2 feet high, resting on brick walls 1 1/2 feet high and constituting most of the frontage of two walls of the premises were held to be part of the structure. However, in Holiday Fellowship Limited v Hereford (1959) 1 WLR 211 ordinary wooden framed windows were not regarded as part of the main walls and inferentially not part of the structure. A useful summary of the factors which need to be weighed in deciding whether work at hand is repair or not (it provides a helpful analogy as to whether work is structural alteration or not) is stated in Troman's Commercial Leases, 1987 at 89 and 90: (i) whether the work required will render the property a wholly different thing to that demised: Ravenseft; (ii) how physically substantial the work required is: Post Office v Aquarius Properties Limited (1985) 2 EGLR 105; (iii) the cost of the work required relative to the value of the premises or the cost of a new building and the rent reserved by the lease: Ravenseft; (iv) the lease as a whole and the commercial relationship between the parties: Post Office; (v) whether the work is necessary in order to avoid work clearly within the repairing covenant from being rendered abortive: Ravenseft; (vi) the work required should be looked at in its totality rather than as a series of component parts: Brew Brothers; and (vii) whether the work is a long-term improvement, looking to the future rather than the present: Mullaney v Maybourne Grange (Croydon) Management Co Limited (1986) 1 EGLR 70.

[52]

45 In Bondi Diggers Austin J considered, in the context of a lease, whether works in a certain report were structural or not. He held at [108] that: I must have regard to the principles enunciated in such cases as Granada Theatres Ltd v Freehold Investments (Leytonstone) Ltd [1959] 2 All ER 176. The distinction between structural and non-structural repairs requires the Court to make a practical judgment as to whether the work, having regard to its nature and extent, interferes with or alters the framework or structure of the building. Older case law, referred to by Jenkins LJ in that case at page 181, tended to describe all non-structural work as decorative', but the modern connotation of that word may be too limited to allow it any continuing utility. Having particular regard to their extent, my opinion is that works in the Howse Report include a structural element, particularly as they involve construction of walls and similar sealing structures, and fire doors…. I note the evidence that Mr Dwyer, in his affidavit of 8 March 1999, that in his opinion the works do not involve structural maintenance, replacement or repair but are merely fire safety upgrading works'. I have given consideration to Mr Dwyer's opinion but it does not deflect me from my conclusion. While an expert's opinion on the facts relevant to the Court's construction of a repair clause may be of assistance, I cannot allow an expert's opinion to replace the Court's own conclusion as to the proper classification of the building work as structural or non-structural repairs, especially when the factual basis for the opinion and the expert's understanding of the meaning of the terms are not articulated. 46 In Owners of SP 10701 the Strata Schemes Board of New South Wales considered the meaning of "structural alterations" in the context of a bylaw which prohibited the carrying out of structural alterations without the consent of the owners corporation. Bordon J held that: If the ordinary usage of the term "structural" is to be applied, the relevant definition in the Shorter Oxford Dictionary is "of or pertaining to the structure of a building as distinct from decoration or fittings".

[56]

Applying the same concepts, maintenance, replacement or repair is "structural" when its purpose and effect are to remedy some "failure on the part of the structure to remain satisfactorily put together". This is, I think, consistent with the approach taken to the meaning of "structural repairs" in relation to buildings as such in cases such as Granada Theatres Ltd v Freehold Investment (Leytonstone) Ltd [1959] 1 Ch 592 and Advance Fitness Corporation Pty Ltd v Bondi Diggers Memorial & Sporting Club Ltd [1999] NSWSC 264 to which counsel for both parties referred. Reference may also be made to what was said by Balmford J - again in relation to a building - in Carbure Pty Ltd v Brile Pty Ltd [2002] VSC 272: "'the structure' is that part of the total building that supports the loads and stops the building falling down. It should be emphasised that a building may be structurally sound notwithstanding that it shows signs of movement; as by the opening of cracks. Unless such cracks indicate a real and present threat to load bearing integrity, of building failure or collapse, they may be treated as simply cosmetic defect - susceptible of patching, painting or other straight-forward repair." Also instructive, in this connection, is the decision of the Full Court of the Supreme Court of South Australia in J F Hillam Pty Ltd v Mooney (1988) 48 SASR 381. That case concerned an indoor swimming centre which included two heated pools built into the ground but inside a building. They had on their inside surfaces a particular coating akin to concrete (described as "marblesheen") to "make them safe and acceptable to swimmers". The marblesheen deteriorated and one of the issues for determination was whether its replacement was "a major repair of a structural nature to the premises". King CJ (with whom Jacobs and von Doussa JJ agreed on this aspect) answered the question in the affirmative: "The swimming pools were undoubtedly part of the structure of the premises. The marblesheen which rendered them usable as swimming pools by providing an appropriate surface must be regarded, to my mind, as part of the structure. The repair or replacement of that marblesheen is therefore a repair of a structural nature." Returning to the particular case of the pavements, I am satisfied that they are properly to be regarded as "structures". They were put upon the land by a process of construction. Their character, as consisting of a skin or coating of asphalt placed upon a prepared land surface to which a basecourse of aggregate or blue metal had first been added, makes them similar to, although lesser in degree than, the "low attractive brick fence" considered in Durkin v Commonwealth Savings Bank of Australia (unreported, Full Court of the Supreme Court of South Australia, 30 November 1990) where a fence "in which the bricks are cemented to a cement base and to one another by mortar" was held to be a "permanent domestic improvement of a structural nature". In the same way pavements constructed in the way I have described should be characterised as being improvements "of a structural nature". Furthermore, the replacement of the asphalt skin and any missing basecourse that, to adapt the words in the JF Hillam case, made them usable as pavements by providing the necessary hard surface and its support, and, as stated in Hampson v Clyne, was necessary for them to "remain satisfactorily put together", must, in my judgment, amount to maintenance, replacement or repair that is "structural".

[59]

50 On the other hand, the Applicants' argument that the phrase "non-structural alterations" relates to any alteration to any part of the building, including the affixing of anything which becomes a permanent fixture, is too wide and is contrary to a commonsense interpretation of the words. On this argument all floor coverings which are fixed to the floor and become fixtures are structural so that tiling, for example, would not be exempt development and so require development consent. The interpretation argued by the Applicants would have the result that no works, other than those which are de minimis, such as the placement of a nail for the purpose of hanging a picture, would be exempt development pursuant to cl 4 of Sch 3 of SEPP 60. This also cannot be what Parliament intended. 51 There is a different test in cl 4 of Sch 3 of SEPP 60 for external and internal alterations. The list of examples of "non-structural" alterations to the exterior of a building contained in cl 4(a) includes painting, plastering, cement rendering, cladding, attaching fittings and decorative work and is, in my view, instructive. Most of the matters specified in Sch 2 of the amended Class 4 application are internal building works but the listing in cl 4(a) is of assistance in defining what is intended to be "structural" or "non-structural" as it suggests that the Applicants' expansive definition is not correct. 52 I have not been referred to any cases where the phrase "building alterations" in cl 4 of Sch 3 of SEPP 60 has been considered in any context. Clause 2 of SEPP 60 states that SEPP 60 operates when there is no other environmental planning instrument specifying exempt development. As I have not been referred to any other instrument imposing planning controls in the Sydney Cove Redevelopment Area it appears that if building alterations being carried out in this area are not "caught" by SEPP 60 they will not be subject to any other planning control instruments. In my view, SEPP 60 is a somewhat "blunt" instrument to regulate a potentially wide range of building work in high-rise residential apartments.

[74]

64 The Applicants' counsel argued that I should make the general orders sought in the amended Class 4 application in relation to both apartments 4301 and 4302. However, the evidence suggests that the work in apartment 4301 is virtually complete and this is conceded by the Applicants. I accept the Respondents' submission that orders should not be made where they would have no utility. Accordingly, an injunctive order is not, in my view, warranted in relation to apartment 4301. 65 The Respondents argued that the Applicants have failed to identify with sufficient particularity the works which require development consent in order to justify the making of an order under s 124(1). There is some basis for this argument as the Applicants have made only general submissions about the scope of work yet to be done and have not, for example, identified with particularity the works which remain to be done relying on plan DY6. Questions were however asked of Mr Parker, the project manager, in cross examination about whether the work remaining to be done would be noisy, meaning would result in the emission of noise beyond apartment 4302 and he answered yes. 66 I have outlined in par 61 above the scope of some of the work which it is evident remains to be done. In this regard I note that it is difficult for the Applicants to completely identify all the works to be undertaken in apartment 4302 in relation to which they seek orders as that knowledge is possessed only by the Respondents and their advisers. For example, the evidence of the Third Respondent is that of the works identified in Sch 2 of the Applicants' amended Class 4 application the following were never intended to be done or are no longer to be undertaken in 4302: · construction of reflection pool · installation of glass walls and doors on level 45 · installation of a barbecue on level 45 Accordingly, I would not make any orders in relation to these works. I also note that the plant/shower room constructed by Grocon International has been demolished in apartment 4302 and therefore make no order in relation to this.

[75]

67 I accept the Applicants' submission that the work still to be undertaken in relation to apartment 4302 is substantial. That work clearly includes works which I have determined are structural, and I consider an order can be made in relation to these. The balance of works require consent because of cl 7(2)(b)(iii) and it is difficult to accurately identify on the evidence whether the scale of works for each individual item is exempt. However the works as a whole warrant a finding that they will have an impact such that cl 7(2)(b)(iii) applies. On balance, given the evidence of Mr Parker and what can be observed to be undone, the scope of the remaining works does justify the making of an order. 68 Obviously if there is a decision by the Third Respondent to further vary the nature of the works to be undertaken, he will need to consider the findings in this judgment in deciding whether development consent must be sought or risk contravening s76A(1) of the EP&A Act. It follows from my findings that it is not sufficient to simply review plans to determine if development consent is needed. Rather: (a) the works must be examined to see if they fall within what I have held to be the test for "non-structural alterations"; and (b) the scope of the work to be undertaken, including the level of dust, noise, vibration or any other matters identified in cl 7(2)(b)(iii) to be generated must be considered; in determining, by both the person undertaking the work and the consent authority, in this case the SHFA, whether development consent is required. 69 I note that the Applicants sought a declaration that the Respondents have carried out work in contravention of the EP&A Act. I have found that work which was not exempt development was carried out by the Respondents without any development consent being obtained. The evidence in relation to past works was largely confined to apartment 4301. As the works carried out in this apartment were not fully particularised by the Applicants, and as I consider that I should not make any consequential orders in relation to apartment 4301, I do not need to make a declaration that the Respondents have carried out work in contravention of the EP&A Act in this apartment. 70 In relation to apartment 4302 some work has been done but precisely what is not articulated by the Applicants and I do not consider a declaration in relation to past work can be made with sufficient particularity. The evidence is clear that a great deal of work remains to be done which requires development consent. I am therefore prepared to make an order in relation to that future work. 71 I will therefore make an order restraining the Respondents from carrying out the building work needing development consent in relation to apartment 4302 until such time as the requirements imposed under the EP&A Act in relation to such work have been complied with.

Parties

Applicant/Plaintiff:

Di Francesco and Ors

Respondent/Defendant:

Blantrix Pty Limited and Ors

Cases Cited (5)

CITATION : Di Francesco and Ors v Blantrix Pty Limited and Ors [2004] NSWLEC 669 APPLICANTS: Elwyn Di Francesco Kenneth Laing Andrew Paton Sarina Russo PARTIES : Voltraint No 1019 Pty Limited FIRST RESPONDENT: Blantrix Pty Limited SECOND RESPONDENT: Bive Pty Limited THIRD RESPONDENT: Kovelan Bangaru FILE NUMBER(S) : 41439 of 2004 CORAM: Pain J KEY ISSUES: Planning Instruments :- Whether works carried out in apartments in building are exempt development pursuant to SEPP 60 - meaning of the phrase "non-structural alterations" - whether works will impact on neighbourhood because generate noise dust or vibration Environmental Planning and Assessment Act 1979, s 4, s 76, s 76A(1 s 124(1) Interpretation Act 1987, s 11 LEGISLATION CITED: State Environmental Planning Policy No 56 - Sydney Harbour Foreshores and Tributaries State Environmental Planning Policy No 60 - Exempt and Complying Development, cl 2, cl 5(2), cl 7(2)(b)(iii), cl 14, cl 15, sch 3 Sydney Cove Authority Redevelopment Scheme Advance Fitness v Bondi Diggers [1999] NSWSC 264; Alamdo Holdings Pty Ltd v Australian Window Furnishings (NSW) Pty Ltd [2004] NSWSC 487; Arlone Pty Ltd, James Wasley and Robert Norman Bradbury v Teller Properties Pty Ltd, Hawcroft Holdings Pty Ltd, Tibor Balog and Edward Hawcroft No G324 of 1993 Fed. No. 32/95; Auburn Council v H. & E. Sidgreaves Pty Ltd (1941) 58 WN (NSW) 118; CASES CITED: Council of the Municipality of Waverly v Parker (1960) 77 WN (NSW) 243; Granada Theatres Ltd v Freehold Investment (Leyton - Stone) Ltd [1959] 1 Ch 592; J F Hillam Pty Ltd v Mooney (1988) 48 SASR 381; Mills & Rockerleys Ltd v Leicester City Council [1946] KB 315; Owners SP 10701 v Segelov Dana and Others [1999] NSWSSB 61; Smith and Others v Justices of Portsmith [1906] 2 KB 315 02/12/04 03/12/04 DATES OF HEARING: 06/12/04 07/12/04 09/12/04 DATE OF JUDGMENT: 12/21/2004

[2002] VSC 272

(1988) 48 SASR 381

[1999] NSWSC 264

[2004] NSWSC 487