Donvito v Hawkesbury City Council

These Class 4 proceedings

1. The Donvitos have engaged with staff of the Council, and with the Council's then Mayor, seeking to have the Council acknowledge that the 2013 consent had been commenced and, therefore, had not lapsed. The Council has declined to do so for reasons set out in correspondence addressed to the Donvitos, correspondence in evidence in these proceedings. It will later be necessary to set out matters raised by the Council concerning whether or not the 2013 consent had lapsed.
2. On 2 September 2021, the Donvitos commenced these Class 4 proceedings, seeking a declaration that the 2013 consent had not lapsed. The terms of the relief sought in the Summons are: Declaration that Development Consent DA0406/12 issued by the Respondent on 9 July 2013 (and dated 22 July 2013) for alterations and additions to an existing building and use of the building as a boarding house at 100 Mileham Street, South Windsor has not lapsed.

Representation

1. Mr N Eastman, barrister, represented the Applicants.
2. On 7 October 2021, the Council filed a submitting appearance save as to costs. The consequence of this was that there would be no active contradictor appearing in these Class 4 proceedings and opposing the making of the declaration sought by the Donvitos. However, the absence of a contradictor does not mean that the declaration sought by the Donvitos should automatically be granted, as the onus remains on the Donvitos to prove, on the balance of probabilities, that the 2013 consent had not lapsed in July 2018 and that, therefore, the declaration sought in the Summons commencing these Class 4 proceedings should be made.

The hearings

1. A short hearing took place on 1 December 2021. For reasons later set out, the matter was adjourned to a further hearing which was to be held on 9 February 2022. The December 2021 hearing was conducted in person, with the then relevant COVID‑19 pandemic public health order restrictions being observed in the courtroom.

The December 2021 hearing

1. During the course of the hearing on 1 December 2021, I identified a number of defects that appeared to arise from the documentary material that had been exhibited to the affidavit of Mr David Donvito deposed on 10 August 2021. I identified three deficiencies that I considered were critical to me being able to give proper consideration to the relief which had been sought by the Donvitos in these Class 4 proceedings. The three deficiencies which I identified were described in the transcript in the following terms: HIS HONOUR: Paragraph 26 refers to the notice of determination of the development application and the approved architectural plans. The plans that are in the exhibit are not the approved architectural plans. (Transcript 1 December 2021, page 1, lines 45 to 47) … The subdivision plan appears to show the proposed wall built at a location which differs from that which is disclosed on the photograph that forms part of your written submissions. (Transcript 1 December 2021, page 2, lines 14 to 16) … HIS HONOUR: … The next matter that I have of concern is with respect to the photographs behind Tab 12. If you will see the upper photograph - [in the] upper bubble that's a submission, that's not evidence and I will not have that element of that photograph admitted as evidence. A similar position prevails with respect to the lower bubble of the lower photograph. (Transcript 1 December 2021, page 2, line 47 to page 3, line 1).
2. I indicated to Mr Eastman, concerning time to rectify these information deficiencies (Transcript 1 December 2021, page 3, lines 27 to 33): HIS HONOUR: I'm not averse to providing time but my particular concern as you would well appreciate given that there is no contradictor in these proceedings I have to approach them given that there is a significant potential benefit to the applicants if I make the declaration as sought and a significant potential disbenefit to them if I don't do so and under the circumstances where there is no contradictor I have to be even more cautious than would otherwise be the case.
3. I later indicated (Transcript 1 December 2021, page 5, lines 28 to 31): … All I am concerned about is the fact that if I am to find in your clients' favour, I have to be absolutely certain that I am doing so on a proper evidentiary basis before I get to the question of a proper legal basis.
4. After a lengthy further exchange with Mr Eastman (an exchange which does not require detailing), I gave the following directions (Transcript 1 December 2021, page 8, lines 31 to 39): 1 The applicants' legal representatives are to write to the respondent and advise of the issues raised and that the matter has been stood over for further hearing at 8.15 am on 9 February 2022 for a maximum of an hour and a half. 2 The applicants are directed to file and serve any further evidence upon which they will seek to rely at the adjourned hearing by the close of business on Friday 28 January 2022. 3 The matter is adjourned until 8.15 am on Wednesday 9 February 2022.
5. I had earlier indicated that the additional material was required to be served on the Council, lest they change their mind about the nature of their appearance.
6. It is clear from the terms of the directions; the length of the time gap between directions 2 and 3, when coupled with my remarks about the necessity for the Council to have time to consider the material, that it was essential that any additional evidence needed to be served on the Council in the timely fashion specified by direction 2.

The filing of further evidence from Mr Donvito

1. Direction 2 was not complied with. A further affidavit and a folder of exhibited material was subsequently filed. The affidavit was filed electronically at 4.51 pm on Monday 7 February 2022, only one full business day prior to the scheduled further hearing on Wednesday 9 February 2022.
2. Nothing in Mr Donvito's affidavit provided any explanation whatsoever for the failure to comply with the timing set in direction 2 of my directions of 1 December 2021. I concluded that it was entirely inappropriate to proceed to address any matters of merit at the hearing scheduled for 9 February 2021.

The hearing on 9 February 2022

1. After Mr Eastman announced his appearance at the commencement of the hearing (conducted by AVL) on 9 February 2022, I immediately made the following directions: The Court orders that the Applicants' legal representative is to file and serve, by no later than 4.00 pm on Friday 18 February 2022, an affidavit: 1 Setting out when, how and in what terms the legal representatives of the Respondent were advised of the issues raised by Moore J on 1 December 2021 concerning the inadequacy of the information provided in support of the Applicants' Class 4 proceedings; 2 The terms of any response provided by the Respondent's legal representatives to the communication in 1 above; 3 An explanation as to why direction 2 of the directions made on 1 December 2021 was not complied with; 4 Setting out when, how and in what terms the legal representatives of the Respondent were served with the affidavit of David Donvito sworn 7 February 2022 and filed with the Court at 4.51 pm that day and the documents exhibited to it; 5 The terms of a communication to the Respondent's legal representatives advising of these directions; 6 The terms of any response from the Respondent's legal representatives to the of [sic] the communication in 5; and 7 The matter is adjourned for mention before Moore J at 9.00 am on Friday 4 March 2022 for further directions.
2. I then adjourned further consideration of the matter to 4 March 2022, as set out in direction 7 above.

Confirmation of the Council's position

1. On 13 February 2022, Mr Jonathan Ede, Mr Eastman's instructing solicitor, wrote to Mr Baird, the Council's solicitor, as required by my directions of 9 February 2022. A copy of that letter is in evidence at Annexure E to the affidavit of Mr Ede of 18 February 2022. Mr Baird's reply on behalf of the Council is dated 17 February 2022. This letter said: We are instructed by Hawkesbury City Council that its position remains that it does not seek to actively participate in the proceedings, having filed a notice of submitting appearance on 7 October 2021.
2. Mr Baird's letter is at Annexure F to Mr Ede's affidavit.

Introduction

1. Two further hearings were held. First, on 4 March 2022, the directions hearing foreshadowed above was held. Prior to that hearing, the requirements of the directions which I had given on 9 February 2022 had been satisfied with additional affidavits filed and served from Mr Ede and from Mr Donvito. A folder of further documentary material, responsive to the deficiencies I had identified at the hearing on 1 December 2021, had also been filed. The affidavit of Mr Ede provided evidence of his having communicated with the Council concerning the matters which I had raised at the December 2021 hearing.
2. A further hearing was held on 14 March 2022 to enable Mr Eastman to: 1. have the two further affidavits read so as to become evidence in the proceedings; 2. tender the folder of material exhibited to Mr Donvito's further affidavit (it being admitted and becoming Exhibit A); and 3. completing his submissions in support of the application for the declarations sought.

The written submissions

1. Written submissions in support of the application for the declaration had been provided by Mr Eastman on 30 November 2021. Following the filing and serving of the additional affidavit in documentary evidence, Mr Eastman provided supplementary submissions addressing that material. These supplementary written submissions were provided to me on 11 March 2022.

The subdivision approval and works

1. In January 2014, the company which owned the site (Hawkesbury Development Corporation Pty Ltd) applied to the Council for consent to a two‑lot Torrens title subdivision of the property that included the site. The purpose of the subdivision was to enable the proposed boarding house to be located on a single allotment separated from the remaining portions of the IN1 General Industrial‑zoned site. On 24 June 2014, the Council granted consent to this subdivision. The subdivision plan showed the construction of a dividing wall between the two allotments, with this dividing wall proposed to be located at the point of the existing internal stud wall acting as a barrier between the proposed boarding house site and the remainder of the industrial use property.
2. As it subsequently transpired, pursuant to a construction certificate dated 24 June 2015, the dividing wall was constructed as a Besser‑block firewall, a wall which was not located on the subdivision boundary, but erected several metres into the industrial premises from the boundary. This construction certificate was issued by the Council. Access for the construction of this wall had been effected through the portion of the site intended to remain as industrial premises.

Condition 12 of the 2013 consent

1. I have earlier set out the terms of condition 12 of the 2013 consent. It is appropriate to repeat it at this point, with emphasis added to the critical words engaged for my consideration in these proceedings. Condition 12 of the 2013 consent was in the following terms: 12 The existing asbestos roof shall be removed and replaced by a metal roof. The plans submitted with the construction certificate must indicate the installation of a metal roof.
2. Mr Eastman acknowledged that, as at the potential lapsing date in July 2018, there was no plan in existence which satisfied the requirement of the second sentence in condition 12.

Condition 15 of the 2013 consent

1. A number of documents provide appropriate contextual evidence to enable consideration of how condition 12 is to be understood within the framework of the overall development consent containing it. The first matter of relevance is contained in a further condition of the 2013 consent, condition 15. Condition 15, relevantly, is in the following terms: A construction management program shall be submitted and approved by the Council prior to the issue of any construction certificate.
2. The condition then sets out specific matters requiring to be addressed by the Construction Management Program. Only one of them, paragraph 15(b), has any relevance in the current proceedings. This element, requiring Construction Method Statements, was in the following terms: The proposed order in which works on the site will be undertaken and the method statements on how the various stages of construction will be undertaken;
3. This element of condition 15 clearly envisages multiple stages to be undertaken and, in contrast to condition 12, the use of the words "any construction certificate" appears to contemplate that there might be more than one such certificate.

The Construction Management Plan

1. A DA Conditions Compliance Matrix of 31 May 2018 (the Matrix) is in evidence in Exhibit A at Tab 13. It notes, on page 2 with respect to condition 12, that the provision of plans and confirmation of the plans satisfying that condition are to be drawn by the project architect at a time prior to the issuing of Construction Certificate 2.
2. With respect to condition 15, the satisfaction of the condition column of the Matrix notes that the developer is to provide a copy of the Construction Management Plan (including demonstrating approval of the Construction Management Plan by the Council). This was to occur prior to the issuing of Construction Certificate 1.
3. A structural design certificate, dated 12 June 2018, was issued by Lateral Thinking Design Pty Limited for Stage 1 construction works. The sketch plan accompanying the certificate shows the proposed apertures in the existing stud wall and the Acrow Prop arrangements required for the openings to be created.
4. By e‑mail to Mr Donvito, dated 13 June 2018, the relevant council officer indicated that the Construction Management Plan was adequate for the first stage of implementation of the boarding house development consent.

The evidence of commencing work

1. A construction certificate was issued for the proposed Stage 1 works. This construction certificate showed three accessways to be demolished on the southern side of the building in the vicinity of the site boundary - with these to be held up by Acrow Props installed (prior to any demolition of the apertures) at locations marked on the plan.
2. Mr Donvito's affidavit of 10 August 2021 sets out, between paragraphs 40 and 63, a chronology of matters taking place between 2016 and 25 June 2018 that are relevant to the matters now requiring consideration. As earlier noted, a bundle of documents exhibited to this affidavit was in evidence. For the purposes of the chronology appearing below, relevant documents were contained in that bundle at Tabs 13 to 20: 19 April 2016 Mr Donvito arranges temporary builder's power supply to the site May 2018 Mr Donvito seeks advice concerning obtaining an early works stage construction certificate for the boarding house consent 31 May 2018 The DA conditions compliance matrix is prepared by Local Consultancy Services Pty Ltd Early June 2018 Mr Donvito requests Mr Griffiths of Lateral Thinking Design Pty Ltd to prepare a Construction Management Plan, design, sketch and structural design certificate for the early works stage construction certificate June 2018 Mr Donvito arranged for electrical safety works to be carried out on the site 12 June 2018 Mr Griffiths provides the requested documents 13 June 2018 Mr Donvito sends an e‑mail to Mr Miles, the Council's Building and Development Coordinator seeking approval of the Construction Management Plan as required by condition 15 13 June 2018 Mr Miles confirms that the Construction Management Plan was sufficient for the early works stage 13 June 2018 Mr Donvito ordered three structural Acrow Props from Dynaton Sales & Hire Pty Ltd 14 June 2018 Application to Mr Dean for an early works stage construction certificate 21 June 2018 Mr Dean issues Construction Certificate no 8038350 for structural propping (Acrow Props) and associated works only 25 June 2018 Mr Donvito installed the Acrow Props at the locations marked X on the Construction Management Plan as approved by the construction certificate with these propping works undertaken under Mr Griffiths' supervision 25 June 2018 Mr Donvito partially demolished and removed sections of the rear wall of the building. The creation of these apertures in the rear wall of the building are shown on photographs in the exhibited material 25 June 2018 Mr Dean inspects the site and issues an inspection certificate

1. The terms of Mr Dean's inspection certificate records that the activity outcome was "Satisfactory (Minor issues)".

Mr Eastman's submissions

1. I mean no disrespect to Mr Eastman when I summarise submissions in the fashion set out below, as the nature of the matter I need to determine, as to whether or not the 2013 consent has lapsed or not, is one of comparatively narrow compass involving only one matter of fact and one matter of construction of the 2013 consent, that is, the proper construction of condition 12 as it applies to the facts as revealed by the evidence in these proceedings.
2. First, Mr Eastman took me to the material in Mr Donvito's affidavit evidence and in the documentary evidence, which established that certain physical construction work had been undertaken on the site prior to the expiry of the five‑year period within which such construction activity was mandated as a necessary prerequisite to the development consent coming into effect and remaining effective.
3. The construction work revealed by the evidence was the cutting of the apertures in the wall of the existing structure on the site and the prior Acrow Propping to ensure stability of the wall within which the openings would be created. The evidence establishes that those works were carried out on 25 June 2018 - before the lapsing date, that is, before the expiry of five years after the granting of the 2013 consent.
4. Mr Eastman submitted that the circumstances arising for my consideration in these proceedings were, by analogy, similar to those dealt with by Talbot J in Baulkham Hills Shire Council v Dix and Another [2004] NSWLEC 404 (Baulkham Hills Shire Council v Dix and Another). Mr Eastman submitted that Talbot J's approach was appropriate to be adopted by me and applied to the 2013 consent here requiring consideration.
5. Having established that construction work had been carried out within time, Mr Eastman next turned to the question of what he submitted was the appropriate understanding of condition 12 and why it did not act as an impediment to my concluding that the works which had been carried out had been carried out unlawfully and, thus, were not able to be relied upon for the purposes of the commencement of the development consent within the mandated five‑year period.
6. In essence, Mr Eastman's submission was that the required plan annotation concerning the removal of the asbestos roofing was only required to be produced for the purposes of any construction certificate that was to be issued for works involving the removal of that roof.
7. Mr Eastman's written submissions concerning condition 12 appear in paragraph 35 of his submissions of 30 November 2021. Two elements, paragraphs 35(c) and (d), warrant being set out at this point. They are in the following terms: 35(c) the requirements of condition 12 gateway specific work, namely the removal of the asbestos roofing material and replacement with a metal roof. Its purpose is to ensure the particular work is carried out according to a design and in a manner that meets Council standards. That purpose does not relate to the broader development but rather only to the replacement of roofing material. It therefore only needs to be met when the relevant construction certificate for the roofing works is issued. It was not required to be satisfied for the issuing of the construction certificate; (d) if the Council intended that condition 12 of the consent be satisfied at the issuing of any construction certificate, it would have (or should have) used those words. Any ambiguity or uncertainty in the language used in the consent must be construed in favour of the owner (Baulkham Hills Shire Council v Ko-Veda Holiday Park Estate [2008] NSWLEC 181).
8. He further submitted that, because the development approved by the 2013 consent was one which was envisaged to be carried out in stages, multiple construction certificates were to be involved and that, provided the construction certificate which authorised the creation of the apertures and the propping of the wall did not authorise any work on the asbestos roof, the construction certificate plans for that stage of the development did not require satisfaction of condition 12 - satisfaction of that condition was appropriate to await a future construction certificate, which would involve works encompassing the asbestos roof, and condition 12 would be required to be satisfied prior to the issuing of that construction certificate.
9. He submitted (and I accept) that the construction certificate plans which had authorised the creation of the apertures and the Acrow‑propping of the wall was issued prior to the carrying out of those works.
10. Mr Eastman also provided supplementary written submissions dated 11 March 2022, submissions which addressed the evidentiary deficiencies I had identified at the hearing on 1 December 2021. It is not necessary to set out any of that material as the deficiencies were dealt with in an appropriate and satisfactory fashion by the affidavit of Mr Donvito of 7 February 2022 and the folder of material exhibited to it and tendered.

Consideration

1. Mr Eastman's written submissions of 30 November 2021, at paragraph 19, addressed the question of what was required to be demonstrated to establish commencement of the 2013 consent prior to the lapsing date. He wrote: 19 This issue was the subject of the decision in Hunter Development Brokerage Pty Ltd v Cessnock City Council [2005] NSWCA 169; (2005) 63 NSWLR 124, the Court of Appeal held that there were three questions to be answered under section 4.53(4) (section 95 (4) as it was at the time) in deciding whether a consent had lapsed: ● was the work relied on building, engineering or construction work? ● if so, did it relate to the approved development; ● if so, was it physically commenced on the land to which the consent applied prior to the relevant lapsing date?
2. The earlier reproduced chronology (supported by the necessary documents in the exhibit to Mr Donvito's affidavit of 10 August 2021) shows that each of the questions set out above in paragraph 19 of Mr Eastman's written submissions are to be answered in the affirmative.
3. However, the three questions posed by Mr Eastman (as derived from Hunter Development Brokerage Pty Ltd v Cessnock City Council [2005] NSWCA 169; (2005) 63 NSWLR 124) do not provide a complete basis upon which I could contemplate making the declaration sought in the Donvitos' Summons. This is because condition 12 of the development consent potentially stands as having created an unfulfilled condition precedent - one without compliance with which the works carried out by Mr Donvito in June 2018 would not have been works carried out pursuant to the development consent because the condition precedent had not been satisfied.
4. I have carefully read the reasoning of Talbot J in Baulkham Hills Shire Council v Dix and Another, the case cited by Mr Eastman in support of the proposition that condition 12 did not act as a barrier to the works carried out by Mr Donvito on 25 June 2018 establishing commencement of the consent and preventing it from lapsing. I am satisfied that his Honour's decision does not provide assistance in this matter, as the construction plans approved by the certifier and given effect by the developer in the proceedings before his Honour were inconsistent with the plans that had been approved by that Council. That is significantly different from the position which here applies.
5. What is more appropriate, in these proceedings, is to examine the idiosyncratic facts and circumstances of what has taken place and to assess whether or not, under the circumstances of what was regarded by Mr Donvito and Mr Dean, his certifier, as a multi-stage development, properly understood, condition 12 was required to be satisfied prior to the carrying out of any works on the site or merely prior to the carrying out of any works which involved the asbestos sheeting roof on the site with the requirement that it be replaced by a metal roof.
6. I have earlier set out the terms of condition 15 of the 2013 consent. As can be seen, it required that a Construction Management Plan be provided to the Council for approval prior to the carrying out of any works pursuant to the 2013 consent.
7. A copy of that Construction Management Plan is not in evidence as part of the bundle of documents exhibited to Mr Donvito's affidavit of 10 August 2021 and tendered by Mr Eastman. Related Construction Management Plan documentation appears at Tab 14 of Exhibit A. The first was a descriptive document, whilst the second was a plan which was marked up to show the works which were intended to be carried out Stage 1 pursuant to that Construction Management Plan. However, an e‑mail demonstrating it had been provided to, and approved by, the Council appears at Tab 15 of Exhibit A.
8. A further relevant document was contained in this bundle of tendered material. It was the DA Conditions Compliance Matrix. It disclosed the nature of the matters to be encompassed in these Stage 1 works and authorised by the Stage 1 construction certificate. No matters relating to works involving the asbestos roof were noted as being encompassed within the Stage 1 construction certificate.
9. Relevant for present purposes, this document expressly nominated that works encompassing the asbestos‑sheeting roof would be addressed in a Stage 2 construction certificate.
10. It is to be observed that there is no evidence that any Stage 2 works have been undertaken, nor that any Stage 2 construction certificate has been sought and obtained.
11. What is clear, however, is that the Council has been provided with documentation concerning the Stage 1 works and the Stage 1 construction certificate. There is no evidence that the Council seeks to suggest that it has raised any objection to the deferral until the Stage 2 works and construction certificate process for the necessity to satisfy condition 12 arising.
12. Indeed, I am satisfied that the evidence of the Construction Management Plan, and its acceptance by the Council as the basis for Stage 1 works, enables me to draw the inference that the endorsement of the Council of the Construction Management Plan for Stage 1 constituted acceptance by the Council that the necessity for satisfaction of condition 12 of the 2013 consent would not arise until a construction certificate was proposed to be executed which would involve works to the asbestos‑sheeting roof to the existing structure.
13. As a consequence, I am satisfied that:

• the works involving the creation of the two apertures in the wall to the existing structure and the prior Acrow‑propping was carried out within five years of the granting of the 2013 consent; and
• because the 2013 consent was proposed to be effected in stages and that Stage 1 did not include any work to the asbestos‑sheeting roof, it was appropriate that satisfaction of condition 12 could be deferred for satisfaction until the stage when such works to the roof were contemplated.

1. I am also satisfied that the second of the above propositions had also been accepted, by necessary inference, by the Council.
2. I am therefore satisfied that it is appropriate to make a declaration confirming that the 2013 consent has commenced and, therefore, has not lapsed.

Declaration and orders

1. The Court, therefore, makes the following declaration and orders: 1. Declare that Development Consent DA 0406/12 issued by Hawkesbury City Council on 9 July 2013 (and dated 22 July 2013) for "alterations and additions to an existing building and use of the building as a boarding house at 100 Mileham Street, South Windsor" has not lapsed; 2. The exhibit is returned; and 3. Costs are reserved.

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: 25 March 2022