Di Francesco and Ors v Blantrix Pty Limited and Ors

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".

7 The land on which the building is located is zoned part "Residential", part "Commercial" and part "Special Uses" under the Sydney Cove Authority Redevelopment Scheme. State Environmental Planning Policy No 56 - Sydney Harbour Foreshores and Tributaries ("SEPP 56") and State Environmental Planning Policy No 60 - Exempt and Complying Development ("SEPP 60") apply to the land on which the building is located.

8 On 30 December 1999 the Minister granted a development consent, subject to conditions, to a development application lodged by Grocon International for consent to erect a 40 level residential tower development with over 200 apartments, retail and commercial uses in a podium of up to 5 levels, underground carparking, and the conservation and re-use of an existing heritage building ("the DA"). A copy of the development consent and the development consent plans are attached to the affidavit of Maysaa Sayed sworn on 23 November 2004. The DA plans show levels 43, 44, and 45 as empty shells, depicting only the external walls, internal staircases and balconies of apartments 4301 and 4302 and the common areas not associated with apartments 4301 and 4302.

9 The parties do not dispute that the development consent did not grant consent to the works.

Work done in Apartments 4301 and 4302 10 I had the benefit of a view of apartments 4301 and 4302 and the relevant common areas of the building on 3 December 2004. Apartments 4301 and 4302 are located on the top three floors of the building, being levels 43 to 45. Apartments 4301 and 4302 are the only apartments located on these floors. Inside apartments 4301 and 4302 access to levels 44 and 45 is via spiral staircases located in both apartments. In both apartment 4301 and 4302: (a) level 43 consists of kitchen, dining and media areas and a powder room; (b) level 44 consists of bedrooms and bathrooms; and (c) level 45 consists of an outside entertaining area, which includes a plunge pool, plant room and possibly other facilities such as a bathroom and gym. Work in apartment 4301 is very well advanced with the evidence being that it is intended to be finished by the end of December 2004. Much more work remains to be done in apartment 4302.

11 The parties produced numerous sets of plans which show the building works done by Grocon International and the work done or to be done by the Respondents for the fitout of apartments 4301 and 4302.

12 The development consent plans were MS1 attached to the affidavit of Ms Sayed dated 22 November 2004. A two page extract from these plans was exhibit DY1 to the affidavit of Mr Young dated 24 November 2004. Similar but not identical plans marked DY5 were exhibited to the affidavit of Mr Young sworn 1 December 2004 which show the building work done by Grocon International, completed before the Respondents took possession. DY5 shows that load bearing structural features such as the internal concrete stairs and the plant and shower rooms on level 45 were complete at the point the Respondents took possession so that I do not consider the Applicants can maintain their case in relation to these items.

13 A further set of "as built" plans, marked DY6, is exhibited to Mr Young's affidavit dated 1 December 2004. This shows the work already done by the Respondents in apartment 4301 and work yet to be done in apartment 4302. The plans in DY6 are replicated in other plans, marked DY2 for apartment 4301 and DY3 for apartment 4302, which are exhibited to Mr Young's affidavit dated 24 November 2004.

14 The "construction of stairs" identified in Sch 2 of the Applicants' amended Class 4 application can refer only to the replacement of the wooden treads on the stairs and not to the concrete structure which supports them. I therefore limit my consideration of this item to the replacement of the wooden stair treads. Similarly, "construction of plant/shower rooms on level 45" identified in Sch 2 of the Applicants' amended Class 4 application cannot be maintained by the Applicants as this was done by Grocon International. It does, however, appear that the Respondents have demolished the shower rooms which Grocon International built on level 45 and I will include this work in my findings.

15 It also became clear during the course of the hearing that the nature of the works has evolved since the date on which the plans were produced so that the Respondents have not strictly adhered to the DY6 plans and presumably may amend them again in the future. For example, the Third Respondent's evidence is that he no longer intends to install glass walls and doors on level 45 or pour concrete seating around the pools which were initially constructed, but not finished in all details, by Grocon International.

The Relevant Legislation 16 Section 76 of the Environmental Planning and Assessment Act 1979 ("the EP&A Act") provides that: … (2) An environmental planning instrument may provide that development of a specified class or description that is of minimal environmental impact is exempt development. (3) If development is exempt development: (a) the development may be carried out, in accordance with the instrument, on land to which the provision applies without the need for development consent, …

17 Clause 5(2) of SEPP 60 provides that "this Policy prevails over any other environmental planning instrument made before or after this Policy to the extent of any inconsistency…"

18 Clause 2 sets out the aims of SEPP 60 and includes the following: (a) to provide for exempt development and complying development in certain local government areas that have not provided for those types of development through a local environmental plan: (i) by identifying the development of minimal environmental impact that is to be exempt development (and that, consequently, may be carried out without the need for development consent) … (b) to provide that development comprising the subdivision of land, the erection of a building or demolition, to the extent to which it does not already require development consent under another environmental planning instrument in order to be carried out, cannot be carried out except with development consent. 19 Clause 7 of SEPP 60 provides that: (1) Development specified in Schedule 3 that meets the standards for the development contained in that Schedule and which complies with the requirements of this clause is exempt development for the purpose of this Policy. (2) To be exempt development: … (b) the development must not: … (iii) create interference with the neighbourhood because it is noisy, causes vibrations, creates smells, fumes, smoke, vapour, steam, soot, ash, dust, waste water, grit or oil, or … 20 Schedule 3 of SEPP 60 includes the following: 4 Building alterations Building alterations (but not the making of, or an alteration to the size of, any opening in a wall or roof of a building, such as a doorway, window or skylight) comprising: (a) non-structural alterations to the exterior of a building, such as painting, plastering, cement rendering, cladding, attaching fittings and decorative work, or (b) non-structural alterations to the interior of a building that do not result in the current load-bearing capacity of the building being exceeded.

21 Clause 14 of SEPP 60 provides that: (1) A person may erect a building only with development consent. (2) A person may demolish a building or work only with development consent. (3) This clause applies if the development: (a) does not require development consent to be granted under any other environmental planning instrument, and (b) is not prohibited by another environmental planning instrument, and (c) is not identified in any environmental planning instrument as exempt development, and (d) does not involve Crown building work as defined by section 115M of the Act.

22 Clause 15 of SEPP 60 has the effect that the Minister is the consent authority for any work requiring development pursuant to cl 14 of SEPP 60. Section 23 of the EP&A Act permits the Minister to delegate functions to certain other parties. Sometime after granting the development consent referred to at par 8 above, the Minister delegated authority to determine development applications in relation to the land on which the building is located to the Sydney Harbour Foreshore Authority ("SHFA"). Therefore SHFA is now the relevant consent authority for any development which requires consent.

23 For the purpose of these proceedings the parties did not dispute that if the works were not exempt development then they would require development consent under cl 14 of SEPP 60. Accordingly, the parties' arguments were directed to whether or not the works are exempt development pursuant to SEPP 60.

The Evidence 24 The Applicants relied on the following: (a) a statement of evidence prepared by Anastasios Sagris, a building consultant retained by the Applicants in these proceedings, dated 1 December 2004; (b) an affidavit sworn by Frank Gergelifi, a construction engineer with experience in concrete core drilling on 29 November 2004; (c) affidavits sworn on 22 November 2004 and 23 November 2004 by Maysaa Sayed, a solicitor employed by the firm acting for the Applicants; (d) an affidavit sworn on 3 December 2004 by Kenneth Laing, one of the Applicants who occupies apartment 3002 in the building; (e) an affidavit sworn on 3 December 2004 by Mark Brandon, who occupies apartment 3304 in the building; (f) affidavits sworn on 29 November and 6 December 2004 by Elwyn Di Francesco, one of the Applicants who occupies apartment 4002 in the building; (g) an affidavit sworn on 3 December 2004 by Charles Di Francesco, who with his wife, Elwyn Di Francesco, occupies apartment 4002 in the building; (h) an affidavit sworn on 3 December 2004 by Margarete Ainsworth, who is a director of Votraint No. 1019 Pty Limited, one of the Applicants who owns apartment 4202, and who is intending to occupy apartment 4202 in the near future; and (i) an affidavit sworn on 29 November 2004 by Andrew Paton, one of the Applicants who occupies apartment 3304 in the building. Mr Laing, Mr Brandon and Mr and Mrs Di Francesco also gave oral evidence.

25 The Respondents relied on the following: (a) affidavits sworn on 24 November 2004 and 1 December 2004 by Denis Young, who is the managing director of Meinhardt (NSW) Pty Limited, the structural engineers retained by Grocon International to construct the building; (b) an affidavit sworn on 6 December 2004 by Philip Drew, a town planner retained by the Respondents; (c) an affidavit sworn on 2 December 2004 by Eric Parker, the project manager employed by the Respondents in relation to the works; and (d) three affidavits sworn on 23 November 2004, 24 November 2004 and 2 December 2004 by Kovelan Bangaru, one of the Respondents. Mr Young, Mr Parker and Mr Bangaru also gave oral evidence.

The Applicants' Arguments 26 The Applicants argued that the works in Sch 2 of the amended Class 4 application do not constitute exempt development under SEPP 60 as they: (a) are not non-structural alterations within the meaning of cl 4 of Sch 3 of SEPP 60; and/or (b) have created or have the potential to create interference with the neighbourhood because they are noisy, cause vibrations and create dust and grit within the meaning of clause 7(2)(b)(iii) of SEPP 60.

27 The Applicants also argued, albeit with less vigour, that cl 7(2)(b)(iii) extended generally to adverse amenity impacts such as general inconvenience caused to occupiers of the building as a result of the carrying out of the works. Accordingly the Applicants argued that development consent was required for the Sch 2 works which have already been carried out and is required for the remainder of the works which are yet to be carried out by the Respondents.

28 The Applicants argued that in order for development to be exempt development it must not only fall within a category of development specified in Sch 3 of SEPP 60 as required by cl 7(1) but it must also meet the requirements of cl 7(2)(b)(iii). Accordingly, the Applicants argued that even if the First Respondent's arguments are wrong and the Sch 2 works fall within cl 4 of Sch 3 of SEPP 60 the works will not be exempt development if the development constituted by the works creates "interference with the neighbourhood because it is noisy, causes vibrations, …dust, … grit".

29 The Applicants argued the following in relation to SEPP 60: Clause 4 of Schedule 3 of SEPP 60 (i) The Applicants argued that s 11 of the Interpretation Act 1987 has the effect that the word "building" which appears in the opening words of cl 4 of Sch 3 of SEPP 60 has the same meaning as that provided in s 4 of the EP&A Act. Accordingly, the reference to "building alterations" made in the opening words of cl 4 of Sch 3 of SEPP 60 is to be interpreted as a reference to alterations to "part of a building and any structure or part of a structure". (ii) The Applicants argued that the opening words of cl 4 of Sch 3 of SEPP 60 have the effect that development which involves "the making of, or an alteration to the size of, any opening in a wall …, such as a doorway" cannot be exempt development so that those of the works which involved the making or alteration of doorways are not exempt development even if they would otherwise fit within subclause (a) and (b) of cl 4.

(iii) The Applicants argued that the phrase "non-structural alterations" used in both subclauses (a) and (b) of cl 4 of Sch 3 of SEPP 60 should be interpreted widely so that alterations to any part of a building, including alterations made to structures which attach to a building as permanent fixtures could not be exempt, but excluding alterations which are de minimus, purely decorative or which are not intended to form a permanent part of a building's structure. Tiling but not carpeting is structural on this argument. The Applicants relied on the following cases to support their argument that the term "structural" should be so widely defined: Smith and Others v Justices of Portsmith [1906] 2 KB 315 ("Justices of Portsmith"); Auburn Council v H. & E. Sidgreaves Pty Ltd (1941) 58 WN (NSW) 118 ("Sidgreaves"); Mills & Rockerleys Ltd v Leicester City Council [1946] KB 315 ("Mills & Rockerleys"); R v Lowe (1954) 19 LGR 348 ("R v Lowe"); Granada Theatres Ltd v Freehold Investment (Leyton - Stone) Ltd [1959] 1 Ch 592 ("Granada Theatres"); Council of the Municipality of Waverly v Parker (1960) 77 WN (NSW) 243 ("Parker"); 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 ("Arlone"); Advance Fitness v Bondi Diggers [1999] NSWSC 264 ("Bondi Diggers"); Owners SP 10701 v Segelov Dana and Others [1999] NSWSSB 61 (Owners SP 10701"); and Alamdo Holdings Pty Ltd v Australian Window Furnishings (NSW) Pty Ltd [2004] NSWSC 487 ("Alamdo Holdings").

(iv) Counsel for the Applicants also submitted that support for the Applicants' argument that a wide interpretation of the term "non-structural" should be adopted in relation to cl 4 of Sch 3 was given by the aims of SEPP 60 which include "identifying the development of minimal environmental impact that is to be exempt development" and the very limited nature of the following other categories of development specified in Sch 3 as follows, including: (a) certain minor types of advertising structures and displays; (b) development (such as landscaping, gardening, paving or the erection of a minor structure, but not building alterations) that is related to a permissible use but only if certain conditions are met; (c) minor boundary adjustments; (d) the demolition of structures the erection of which would be exempt development and which only cover an area of 25 m; (e) certain limited categories of changes of use; (f) some fences; (g) the erection of a single flagpole; (h) certain home occupations; (i) public meetings in certain buildings; and (j) certain minor rural developments related to a permissible use. (v) The Applicants argued that only works which are purely decorative and do not attach to the building permanently as fixtures form exempt development pursuant to cl 4(a) of Sch 3 of SEPP 60.

(vi) The Applicants argued that works not only have to be "non-structural alterations to the interior of a building" but also must " not result in the current load-bearing capacity of the building being exceeded" in order to be works within the meaning of cl 4(b) of Sch 3 of SEPP 60. The Applicants' arguments in relation to cl 4(b) did not address the issue of whether or not the works would "result in the current load-bearing capacity of the building being exceeded" but rather concentrated on what the Applicants argued was the first part of the test, being "non-structural alterations to the interior of a building". Clause 7(2)(b)(iii) of SEPP 60 (i) The Applicants also argued that the works which have been carried out or are intended to be carried out in apartments 4301 and 4302 cannot be exempt development because they contravene the prohibition contained in cl 7(2)(b)(iii) of SEPP 60 in that these works have created or will have the potential to create "interference with the neighbourhood because it is noisy, causes vibrations, … dust, … grit". (ii) Counsel for the Applicants argued that cl 7(1)(b)(iii) extends to works which interfere with the amenity of the neighbourhood in ways not specified in the clause, for example, by workmen employed in carrying out the work using the lifts, damage caused to common areas by the transport of building materials and the deposition of dirt and sand in the common areas resulting from the transport of building materials through these areas.

(iii) Counsel for the Applicants argued that the prohibition in cl 7(2)(b)(iii) of SEPP 60 operates throughout the duration of a project so that even if, when the works were initially contemplated, it could not be foreseen that they had the potential to interfere with the neighbourhood in the manner set out in the clause, the works will cease to be exempt development at the point at which it becomes evident that they do so interfere.

30 The Applicants relied on the oral evidence of Mr Parker, the site manager retained by the Respondents, that all the works carried out or to be carried out have or will, to a greater or lesser extent, cause noise to be emitted beyond the confines of apartments 4301 and 4302. Mr Parker's evidence was that until very recently he was not told to confine the hours during which work was carried out and that a number of complaints had been made to him regarding noise and the tracking of dust and other debris into the common areas. The Applicants also relied on the evidence of Mr Gergelifi to the effect that any concrete core drilling is very noisy and will cause considerable vibration.

31 In relation to the works which have already been carried out, the Applicants relied on the evidence given by Mr Brandon, Mr and Mrs Di Francesco, Ms Ainsworth and Mr Paton, all of whom occupy (or, in the case of Ms Ainsworth, currently uses and shortly intends to occupy) apartments in the building, as to the impacts the works have had on them. The evidence of these occupants was that the noise and vibration resulting from the works, in particular those of the works involving drilling, was detectable within the apartments they occupy to a level which caused them considerable disturbance. Further, all of these occupants state that the lifts and other common areas have, from time to time, been left dirty and, in some cases, damaged by the transport of building materials through these common areas.

32 Mr Di Francesco who occupies apartment 4002, three floors below the Respondents' apartments, gave evidence that the noise experienced by him at times during July and August 2004 was such that he could not use the telephone or otherwise conduct a conversation within the confines of his apartment. Similarly, the evidence of Ms Ainsworth is that on 11 November 2004 she had to discontinue a meeting she was conducting in apartment 4202, which is located directly below apartment 4302, because drilling noise made it impossible to continue. Counsel for the Applicants argued that the evidence of these residents indicated not only that the works carried out in the past were not exempt development but also that any works to be carried out in the future could be expected to contravene the prohibition contained in cl 7(2)(b)(iii) of SEPP 60.

Respondents' Arguments 33 The Respondents argued that the works on which the Applicants relied are all exempt development, and hence, that they may be lawfully carried out by the Respondents without the need to obtain development consent.

34 The Respondents argued the following in relation to SEPP 60: Clause 4 of Schedule 3 of SEPP 60 (i) The Respondents argued that the opening words of cl 4 of Sch 3 of SEPP 60 which excludes "the making of, or an alteration to the size of, any opening in a wall …, such as a doorway" from the category of building alterations covered by cl 4 was only intended to operate in relation to the category of alterations identified at subclause (a), being alterations to the exterior of a building. Accordingly, as the Applicants do not allege that any such work has been carried out on the exterior of the building the Respondents argued that this phrase had no operation in relation to this case.

(ii) The Respondents argued that the phrase "non-structural alterations" used in both subclauses (a) and (b) of cl 4 of Sch 3 of SEPP 60 should be interpreted so as to only apply to alterations to the structure of the building which did not have the potential to affect the load bearing capacity of the building. Counsel for the Respondents argued that this interpretation reflected the "practical judgment" common sense approach adopted by Austin J in Bondi Diggers. As the Applicants have not established that any of the works have the potential to affect the load bearing capacity of the building the works must necessarily be exempt development under cl 4 of Sch 3 of SEPP 60.

(iii) The Respondents argued that the Applicants could not rely, as they sought to do, on cases regarding the interpretation of the terms "structural" or "structure" to support their argument that these terms should be given a wide interpretation as these cases had been decided in different contexts, such as leasing, and had no application to the interpretation of the phrase as it appears in cl 4 of Sch 3 of SEPP 60. The Respondents also relied on the evidence of Mr Young whose professional opinion was that structural alterations such as removal of columns or load-bearing walls are works which would affect the integrity of the load-supporting structures. Non-structural alterations are those works such as non load-bearing partition walls and installation of kitchens, bathrooms, flooring and cupboards which do not impair the structural integrity of a building.

(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.

(iii) In making the above determination the Respondents argued that the person intending to carry out the works has to apply an objective test so that the works will not be exempt development under cl 7(2)(b)(iii) of SEPP 60 if, viewed objectively, they are of a nature likely to result in the emission of noise, dust or the other matters listed in the clause so that the amenity of the neighbourhood is interfered with. In this regard the Respondents argued that the matters listed in cl 7(2)(b)(iii) are exclusive so that, in applying the test, regard cannot be had to general amenity factors beyond those specifically set out. Further, the Respondents argued that the concept of neighbourhood involves: (a) not only a physical aspect, being the physical extent of the neighbourhood, but also; (b) a qualitative aspect, being the character of that neighbourhood; and that both of these must be considered in applying the test to determine if works will infringe cl 7(2)(b)(iii) of SEPP 60.

35 The Respondents argued that the subjective evidence of the Applicants that their amenity had been adversely impacted by the noise generated by the works on a number of occasions was not sufficient to establish that the test contained in cl7(2)(b)(iii) has been met as this is an objective test. The Respondents noted that the Applicants had adduced no technical acoustic evidence to support their claims that the noise emitted during the carrying out of the works was such as to adversely impact on their amenity and argued that objective evidence of this type was required.

36 Further the Respondents argued that the evidence indicates that, while a number of complaints have been made in relation to the noise emitted during the carrying out of the works, these complaints have all originated from the Respondents and that the body corporate has not sought to be a party to these proceedings. The Respondents argued that this suggests that either the character of the neighbourhood is that of primarily unoccupied apartments or that the works carried out by the Respondents were not of a nature so as to objectively interfere with the amenity of the neighbourhood. In this regard the Respondents noted that the evidence was that Grocon International, who built the building, was still carrying out works in part of the building.

Finding Clause 4 of Schedule 3 to SEPP 60 37 I make the following general comments in relation to cl 4: (i) Clause 4 refers to "building alterations" and I accept the Applicants' argument that the definition of "building" contained in s 4 of the EP&A Act applies so that the phrase "building alterations" includes alterations to any part of a building. The Respondents did not make any submissions to the contrary.

(ii) It is clear from reading cl 4 of Sch 3 of SEPP 60 that the qualifying words in brackets in the preamble to subclauses (a) and (b) are not confined, as the Respondents argued, to exterior works. It follows that these words apply both to the exterior works in subclause (a) and the internal works in subclause (b). New internal doorway openings are therefore not within the category of exempt development identified in cl 4 to Sch 3 of SEPP 60. Item 8, "construction of doorway entrances" , and item 17, "alteration of door openings and installation of doors" in the list forming Sch 2 of the Applicants' amended Class 4 application are therefore not exempt development.

(iii) Subclauses (a) and (b) of cl 4 of Sch 3 of SEPP 60 refer to "non-structural alterations". Structural alterations cannot fall within cl 4 and are therefore not exempt development.

38 The Applicants relied on a number of cases in which the courts have considered the meaning of "structure" and "structural". I do not consider that all of these cases support the Applicants' case but have set them out as it is useful to see how courts have dealt with this issue. In Justices of Portsmith the English Court of Appeal considered whether s11 of the Licensing Act 1902 extended to permit licensing justices to order alterations which were non-structural in nature to licensed premises. In holding that the section was confined to "structural alterations" Cozens-Hard LJ held at p 238 that: "The expression "structural alterations" … contemplates … some physical alteration, not a mere restriction of the user of the premises…".

39 In Sidgreaves Herron J of the Supreme Court considered s 113 of the Local Government Act 1919 which prohibited the erection of a building without consent. Section 304 of that Act provided that "erection" includes any structural work or alteration. Herron J held at p 119 that: … s 113 was designed to prevent a person from erecting or altering a building or any part of it so as to render it, in substance, different from that approved by the Council … the section aimed at additions or alterations which would affect the form or structure of the premises. Such a question is essentially a question of fact and varies with the circumstances proved in each case … 40 In Mills & Rockerleys the English Court of Appeal considered whether the Town and Country Planning (Interim Development) Act 1943 extended to permit a council to make orders regarding the painting of advertisements on the walls of houses. Section 47(8) of that Act provided that "a scheme shall not contain any provision prohibiting or controlling the erection or use of structures for the purpose of advertising". Lord Goddard CJ held that "to say that a wall is not a "structure" seems to me to be impossible."

41 In R v Lowe the Court of Criminal Appeal considered whether a seven foot high lattice constituted the erection of a building without consent contrary to s 317 of the Local Government Act 1919-1952. Building was defined by s 304 of that Act to include "any structure or part thereof". In a unanimous judgment Street CJ, Maxwell and Herron JJ held at p 351 that no useful purpose was served by considering "other decided cases, each of which is confined to its own special set of facts and to the particular language of the Act or regulation then in question." The Court held that as "structure' was not defined in the Act, regard should be had to the ordinary meaning as defined in the dictionary. The Court held at p 351 that: A structure is something, therefore, built up of component parts … A single post placed in the ground may not be a "structure", but it would be doing a violence to the English language to hold that the particular screen in question in these proceedings was not, in common parlance, a "structure". … It may be that in other circumstances some limitation is to be placed upon the wide generality of the word "structure" but this court is not concerned to lay down an exhaustive definition, applicable in all situations, setting out the full meaning and content of the word. …

Even if some limitation ought properly, in some circumstances, be placed on this word, this particular erection was designed and intended to promote the effective and comfortable use of the dwelling which had been erected on the land … the nature and purpose of this screen was so closely associated with the use of the building as practically to make it a part thereof. It was not a fence nor was its purpose ornamental. …

However it is not necessary to decide this case upon the narrow ground. This screen is plainly a "structure" and the other sections of the Act to which we were referred do not require that the word selected be cut down in its meaning in this particular case.

42 In Granada Theatres the English Court of Appeal considered the meaning of the term "structural" as it appeared in a repair covenant in a lease. Jenkins LG upheld the construction given to the term "structural" by the trial judge, noting at p 603 that the trial judge said: It appears, rather surprisingly that the expression "structural repairs" has never been judicially defined … Woodfall on Landlord and Tenant, 25th ed … submits … that "structural repairs" are those which involve inference with, or alteration to, the framework of a building, and I would myself say that "structural repairs" means repairs of, or to, a structure, It is sometimes said that repairs must be either structural or decorative …

43 In Parker McClelland C considered whether the installation of water and gas fittings and sinks constituted the erection or alteration of a building without consent contrary to s 311 of the Local Government Act 1919-1959. Building was defined by s 304 of that Act to include alterations to any structure or part thereof. McClelland CJ applied the reasoning adopted in Sidgreaves and held at p 246 that: … in the circumstances of this case, to bring hot water pipes and gas pipes to a room theretofore without them and affix them there, to install means of receiving water and gas by taps, to put in a sink supported by a cupboard which is affixed to the wall and the floor, to insert a waste pipe through the floor from the sink and to join it to the general drainage system, represent together an alteration to the form and structure of the room as considered as part of the building.

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.

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".

In my view the word "structural" does not limit the kind of alterations to alterations of load-bearing walls for example. Structural alterations would certainly include alterations which involve the penetration of a common property floor slab.

47 In Alamdo Holdings Barrett J considered whether, in the context of a lease, paving work could be seen as "structural maintenance replacement or repair". Barrett J held at par 39 to 42 as follows: … The first thing to be said is that, as I view matters, maintenance, replacement or repair that is "structural" can be undertaken only in relation to something that is a "structure" although, of course, not everything done by way of maintenance, replacement or repair in relation to a "structure" is properly classified as "structural". I regard as apposite, in this connection, a passage in the judgment of Brereton J in Hampson v Clyne (1967) 86 WN (NSW) 321:

"'Structure' of course is a word of which the meaning varies considerably according to the context, and the phrase 'structural character' or 'defect of a structural character' varies correspondingly. Literally 'structure' means something which has been constructed and 'defect of a structural character' means either a fault in putting the structure together or some subsequent failure on the part of the structure to remain satisfactorily put together. With particular reference to buildings in common parlance we refer to the bare building as the structure. We refer to fixtures and fittings attached to the structure although these may themselves as individual units be technically 'structures'. We refer also to installations, such as gas and water piping and electrical circuits. Each of these may, however, independently be in certain contexts regarded as a 'structure' in that it is something which has been constructed within another structure."

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".

48 As the Respondents argued, and as cases such as Sidgreaves, R v Lowe, and Alamdo emphasise, the question of whether a matter is "structural" or not will depend on the circumstances. In my view the cases also make clear that the Respondents' approach is too narrow, in other words, these cases adopt a definition of "structural" which is not limited to the load bearing components of a building. The Respondents were critical of cases such as Arlone and Bondi Diggers because those cases dealt with whether work was structural alteration or repair in the context of a lease. While I accept that this case and others were not decided in the context currently before me I consider that they provide some guidance as to how the phrase "non-structural alterations" is to be interpreted. In particular, I note that in Arlone the need to look at the totality of the work rather than its component parts was emphasised while in Bondi Diggers Austin J also referred to the need to consider the nature and extent of the work when making a practical judgment as to whether or not works are structural in nature. Particular reliance was placed by the Applicants on Alambo which referred to J F Hillam Pty Ltd v Mooney (1988) 48 SASR 381 where the surface of a swimming pool was held to be structural, but I do not think these cases and the others referred to above provide support for the very wide interpretation argued for by the Applicants.

49 I am not going to accept either parties' arguments as to the meaning of the key phrase "non-structural alterations" in cl 4 of Sch 3 as I regard the parties' respective arguments as falling at the extreme of either a broad or narrow approach. The Respondents' argument that the phrase "non-structural alterations" relates to all alterations other than alterations to the structural elements of the building which have the potential to affect the load bearing capacity of the building did not deal with any distinction between structural and non-structural and would render the second half of the opening words of cl 4 of Sch 3 redundant. If the Respondents' arguments are correct then all the items in Sch 2 of the amended Class 4 application would be exempt development because none affect the load bearing capacity of the building and only works involving, for example, the removal of load bearing walls would require development consent. This clearly cannot be what was intended by Parliament in a planning instrument which prescribes, pursuant to s 76(2) of the EP&A Act, works of "minimal environmental impact" which are exempt from the need to obtain development consent. My view in this regard is supported by an examination of the other types of development listed in Sch 3 of SEPP 60 which are exempt development, as set out at par 29(iv), which are minor in scale and impact.

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.

53 Adopting a practical approach to the provisions of cl 4 of Sch 3 of SEPP 60, in light of the aims in cl 2 which include the identification of work with minimal environmental impact, and mindful of observations in cases such as Bondi Diggers and Almado, I consider that the phrase "structural alterations" refers to work which is substantial, meaning not de minimis or minor and which changes or adds to the form of the fabric of the building in a manner which cannot be regarded as merely decorative. Works that fall within this description cannot be "non-structural alterations", and hence, cannot be exempt development pursuant to cl 4 of Sch 3 of SEPP 60. While I note that Austin J in Bondi Diggers suggests that "decorative" may no longer be a useful guide I consider that it is in the context of this case. In this regard I note that the term "decorative" is used in cl 4(a).

54 On the basis of this definition, I consider the following works identified in Sch 2 of the Applicants' amended class 4 application are "structural" alterations within the meaning of cl 4 of Sch 3 of SEPP 60 and cannot, therefore, be exempt development: · Core drilling · Construction, plastering and gyprocking of new walls · Removal and construction of foyer walls and partitions · Demolition of masonry walls · Construction of fire places · Demolition of plant/shower rooms on level 45 The evidence is that the shower rooms on level 45 were constructed by Grocon but demolished by the Respondents and I include them in the list on this basis. 55 Accordingly, development consent is required for these works provided they are not de minimus or minor. It follows that I consider that the remaining works identified in Sch 2 of the Applicants' amended class 4 application are "non-structural alterations" within the meaning of cl 4 of Sch 3 of SEPP 60.There is no evidence suggesting the balance of matters in Sch 2 results in the load-bearing capacity of the building being exceeded. Therefore, subject to my findings in relation to cl 7 (2)(b)(iii) of SEPP 60, these could be exempt development.

56 I should note that jack hammering (item 3 in Sch 2) is not a structural or non-structural alteration of any sort and cannot be considered as a separate item under Sch 3 of SEPP 60.

Clause 7(2)(b)(iii) of SEPP 60 57 I make the following general comments in relation to cl 7(2)(b)(iii) of SEPP 60: (i) I consider that both the clear wording of cl 7(2)(b)(iii) of SEPP 60 and its location within the planning instrument makes it plain that this clause applies to all of the categories of development identified in Sch 3 of SEPP 60. Accordingly, the Respondents' submission that this clause relates only to the categories of development identified in cl 9 and cl 10 of Sch 3 of SEPP 60 where it is specifically mentioned must be rejected. It therefore follows that building alterations which fall within cl 4 of Sch 3 must also satisfy cl 7(2)(b)(iii) in order to be exempt development pursuant to SEPP 60.

(ii) I accept the Respondents' submissions that general amenity issues, such as inconvenience in accessing lifts and the carpark and general concern about the nature of the building work, are clearly not matters which are caught by cl 7(2)(b)(iii) of SEPP 60. There is no basis in the wording of cl 7 nor in cl 2 of SEPP 60 to suggest that additional matters can be considered given the exclusive drafting of cl 7(2)(b)(iii).

(iii) I do not accept the Respondents' submission that the decision as to whether cl 7(2)(b)(iii) of SEPP 60 applies is to be made at the time the person undertaking the works is considering whether development consent is required, that is, at the outset of the works. Rather, I accept the Applicants' arguments that the requirement contained in cl 7(2)(b)(iii) of SEPP 60 is continuing in nature so that, if it is breached at any point during the carrying out of particular building works the relevant building works will cease, at that point, to be exempt development and a consent must be obtained. While the Respondents argued that such an approach is impractical, it is far more unsatisfactory, given the objects of cl 2(b) of SEPP 60 and the inherent limitation which s 76(2) of the EP&A Act places on the type of works which can be identified as exempt development, for a determination made at the outset that works are exempt development and therefore do not require development consent, to bind interested parties thereafter regardless of any change in circumstances during the period the development is carried out. It may be that those undertaking building work will need to take a cautious approach as to whether works are exempt development or whether development consent is required at the outset. The necessity for this particular approach is clear given the apparent lack of any other planning controls for this locality for building works of this nature.

(iv) I consider that the relevant neighbourhood for the purpose of cl 7(2)(b)(iii) of SEPP 60 is, as the Applicants argued, the whole of the building "The Cove" and its constituent parts. While no evidence was provided by the parties as to the extent to which the building is occupied by residents, the evidence of the Applicants makes it clear that the building is occupied, at least in part. Provided that the Applicants can demonstrate that numerous apartments in the building are excessively affected by noise and vibration I consider cl 7(2)(b)(iii) is triggered. The affidavits of Ms Ainsworth, Mr and Mrs Di Francesco, Mr Laing, Mr Paton and Mr Brandon clearly suggest that the works have resulted in excessive noise and vibration and, to a lesser extent, dust, which has created interference with the neighbourhood within the building over several months. While I accept the Respondents' submission that it is necessary to determine not only the physical extent of the neighbourhood but also the character of that neighbourhood to determine whether cl 7(2)(b)(iii) of SEPP 60 is triggered, the suggestion that The Cove is located in a noisy downtown area of the city does not reduce the strength of the Applicants' evidence.

(v) While the test of whether work is noisy should be objectively determined I do not think that means that acoustic noise measurements are essential evidence which must be brought forward in order to succeed in an action of this kind, as the Respondents appeared to imply by their submissions. While evidence from the individual Applicants is based on their subjective experiences, the Court is able to assess that evidence in order to determine objectively, whether work is noisy or causes vibration to an unacceptable extent.

(vi) Given that virtually all building work involves some degree of noise and it is clearly not intended that all such work is to be caught by cl 7 of SEPP 60, it is necessary to consider the scope of the works undertaken or to be undertaken in determining whether the interference is sufficient to trigger cl 7(2)(b)(iii) of SEPP 60. It is difficult to write a test of universal application as I consider that whether cl 7(2)(b)(iii) of SEPP 60 will apply in a given case will depend, given the enormous variation in both building works undertaken and the neighbourhoods in which these works will occur, very much on the individual circumstances. Here most of the building work identified in Sch 2 of the Applicants' amended class 4 application as having been undertaken in apartment 4301, and to a lesser extent, apartment 4302, has involved the use of noisy electrical equipment such as jackhammers, electric and core drills and the use of explosive nail guns over an extensive period since January 2004. The scale of the work suggests it is no longer of "minimal environmental impact".

58 I have found several of the works identified in Sch 2 of the Applicants' amended class 4 application are structural and therefore not within the category of exempt development identified at cl 4 of Sch 3 of SEPP 60. While I have held that the remainder of the works identified in Sch 2 of the Applicants' amended class 4 application do fit within the category of development identified in cl 4 of Sch 3 of SEPP 60, it remains to determine whether these works are caught by cl 7(2)(b)(iii) because they interfere with the neighbourhood due to noise, vibration and dust impacts, and so are not exempt development under SEPP 60. The building works, which I consider are not structural, and do not result in the load carrying capacity of the building being exceeded, but which the evidence shows do interfere with the neighbourhood due to the scale of noise, dust and vibration produced in part because they involve the use of noisy electric powered equipment such as drills, saws and jack hammers, are: · Concrete topping of slabs · Penetrating the floor slab. I consider this includes construction of the rotating dining floor including penetration of concrete slab to install motor for dining platform and the construction of the reflection pool. There is conflicting evidence on whether the rotating dining floor penetrates the floor slab or the current topping. Mr Bangaru's evidence is that it penetrated the cement topping, while Mr Parker's evidence is that it was necessary to penetrate the floor slab to install the motor. It is unnecessary that I resolve this conflict given my finding that the work is non-structural. · Chasing of masonry walls to provide for service connections · Tiling of levels 43 and 44 59 It must be noted that if only minor works of this type were being carried out, for example the renovation of a single bathroom or kitchen, it is unlikely that development consent would be needed.

60 The works in Sch 2 of the Applicants' amended Class 4 application which I do not consider interfere with the neighbourhood under cl 7(2)(b)(iii) and are not structural are: · Pipe work where there is no chasing involved, that is, where the pipes are attached to walls by brackets · Joinery · "Hanging" ceilings in foyer · plastering and gyprocking existing walls · replacement of wooden treads on stairs

61 It follows from the above that I consider that a number of the items identified in Sch 2 of the Applicants' amended Class 4 application which have been carried out in apartment 4301 were not, given the scale of the works undertaken and the resulting impacts identified in cl 7(2)(b)(iii), exempt development so that these works did, collectively, require development consent.

62 The Applicants have not sought to particularise the works remaining to be done in apartment 4302. Rather, relying on the evidence of Mr Parker that work remained to be done which would be noisy and cause vibrations and dust and would continue until March 2005, the Applicants considered that there was sufficient evidence to warrant the making of injunctive orders under s 124 of the EP&A Act. The works not done in apartment 4302, as seen on the view, include cement topping and tiling on all of levels 43 and 44, construction of the rotating dining room platform, with possibly some walls and doorways yet to be worked on. There are also seven core holes, the drilling of which is not quite complete. All the drilling into the floor slab able to be done on level 43 is complete, but access is needed to the apartment below in order for the drilling to be completed. The carrying out of some of these works in apartment 4302 as identified in Sch 2 of the Applicants' amended Class 4 application will, in accordance with my findings above, not be exempt development so that the works will require development consent.

Conclusion 63 Given my findings above, the issue arises as to whether I should make any order granting injunctive relief in relation to the building work yet to be done in apartments 4301 and 4302. Section 124(1) of the EP&A Act states: 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.

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.

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.

Orders 72 The Court makes the following orders: 1. The Respondents are restrained forthwith from carrying out any or all works in Apartment 4302 described below except in accordance with the Environmental Planning and Assessment Act 1979: · Core drilling · Penetrating the floor slab/concrete topping · Concrete topping of slabs · Construction, plastering and gyprocking of new walls and ceiling · Demolition of masonry walls · Chasing of masonry walls to provide for service connections · Construction of fire places · Tiling of walls and floors and laying of new surfaces to walls or floors other than carpet coverings of levels 43 and 44 · Removal and construction of foyer walls and partitions · Construction of doorway entrances · Alteration of door openings and installation of doors 2. Exhibits may be returned. 3. Costs are reserved.

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