(2) Without limiting the powers of the Court under subsection (1), an order made under that subsection may:
…,
(b) where the breach of this Act comprises the erection of a building or the carrying out of a work - require the demolition or removal of that building or work, or…
(3) Where a breach of this Act would not have been committed but for the failure to obtain a consent under Part 4, the Court, upon application being made by the defendant, may:
(a) adjourn the proceedings to enable a development application to be made under Part 4 to obtain that consent, and
(b) in its discretion, by interlocutory order, restrain the continuance of the commission of the breach while the proceedings are adjourned.
60 The exercise of discretion in this matter is broad as confirmed in Sedevcic by Kirby P (other members of the Court concurring) and also by the Court of Appeal in Fat-sel. The guidelines for the exercise of discretion articulated by Kirby P in Sedevcic include that the discretionary power of the Court is wide, similar to that of the Supreme Court in its equitable jurisdiction. The discretion is unfettered and can include whether the breach is merely technical, whether there was delay in commencing proceedings by the council in that matter or had a beneficial effect on the environment. The discretion is concerned with the enforcement of a public duty imposed by or under an Act of Parliament. The obvious intention of the Act is that normally its terms will be complied with so that if exceptions are allowed in the exercise of discretion under s 124 the orderly enforcement of the Act is undermined.
61 Fat-sel confirmed the broad approach to discretion available to the Court under s 124 Kirby P stating at 192 that:
Nevertheless, it is important to appreciate the wide scope and purpose of the discretion conferred by s 124 of the Act. Clearly, it is not a warrant to set at nought the complicated and sensitively balanced provisions of the legislation, substituting for the operation of the law laid down by Parliament, the personal opinions of the judge hearing the case. On the other hand, it would be equally erroneous to ignore the discretion or to give it an unduly restricted operation. It is just as much part of the structure and scheme of the Act, for the enforcement of planning law, as are other parts. In Warringah Shire Council v Sedevcic (1987) 10 NSWLR 335; 63 LGRA 360, I collected the authorities and the principles which are applicable to the approach to be taken by a judge exercising the discretion conferred by s 124(1). That discretion was a mollifying one. It permits, in appropriate cases, the refusal of injunctive relief where to grant such relief would work such an injustice as to be disproportionate to the ends secured by enforcement of the legislation including by injunction.
62 In Tynan v Meharg the Court of Appeal considered whether an injunction should be mollified or softened to enable an application to be made to regularise an illegal structure referring to the principles in Sedevcic and Fat-Sel and considered in turn the breaches of the planning law, whether these were mere technical breaches, hardship and other matters personal to the appellants, harm to the environment, whether the laws were deliberately flouted, whether any injunction should be mollified by suspending its operation to allow the appellants to make an application to the Council to regularise the situation, the public interest in upholding the law and seeing that it is obeyed.
63 The exercise of the Court's discretion must reflect the particular circumstances of the case before it and the weight to be attributed to matters raised is a matter for the Court.
Failure to comply with planning law requirements
64 The orderly enforcement of the planning laws is an important consideration in this matter given that the works have been erected by the Respondent without the required development consent issued under the EP&A Act. The mandatory provisions in the EP&A Act in relation to the grant of consent, the appointment of a certifier and the issuing of a construction certificate so that mandatory inspections of work in progress have not been complied with.
Whether the breach is technical
65 The breach of the EPA Act is not technical given the size of the works with a previous timber deck replaced by an enlarged concrete patio and habitable room in the place of an area that was previously open space. The differences between what existed previously and what has been built are referred to in the evidence of Mr Smith, set out above in par 18 and in Mr Glaser's first affidavit, referred to above in par 6 and following.
Impacts on the Applicants
66 The location on the cliff top on the boundary and encroaching onto the Glasers' land to a limited extent is also important. The substantial impacts on the privacy and amenity of the Glasers is attested to in their affidavits. I accept their evidence as to that substantial impact. The change in the structure at the top of the cliff now immediately on or slightly over the property boundary is far more substantial than what existed previously and provides far greater opportunity for oversight than before. The change is apparent from the photographs in the evidence of Mr Glaser and Mr Smith.
67 The proposal by the Respondent's counsel that appropriate orders could be made to ensure that the Applicants' privacy is protected will not overcome all these concerns, raises the issue of how the orders will be policed and largely continues the present unsatisfactory circumstances for potentially months while the Council assesses the current DA and building certificate applications and any appeal rights to this Court are availed of by the Respondent.
Conduct of parties
68 The conduct of the parties is a relevant consideration. The Applicants' counsel has submitted that Mr Poole acted contumaciously without regard for the law and knowingly encroached on neighbouring land. Mr Poole gave oral evidence that the work undertaken was a mistake on his part. He could not recall the advice from Mr Cooney that he did require development consent. He also denied that he was aware that the building work encroached onto neighbouring land and did not seek to hide the work being undertaken. It appears from the photographs attached to Mr Poole's affidavit that pieces of plywood were placed against the wire fence to prevent debris falling below. The wood placed in that way did obscure the Applicants' view of the works but I do not consider that was deliberate.
69 I accept Mr Poole's evidence that he acted mistakenly, however he was careless in not complying with the requirements of the Home Building Act, failing to listen to the clear advice of his architect before the work was carried out that development consent for work of that kind would be required, and failing to understand the geotechnical requirements underpinning the design plan prepared by NB Consulting which he relied on. Failing to appreciate the limits of his property boundary was also careless. His conduct has resulted in a large masonry structure being built without development consent in a sensitive location, given the relationship of the Pooles' property to its neighbours.
70 The Applicants rightly submit that they have done nothing to suggest they should not get relief. Although the issue of delay in commencing proceedings has been raised against them as a factor I should take into account I do not consider that is a relevant consideration in light of the history of the matter and the attempts made by both parties to attempt to deal with the matter.
Safety of the structure
71 Mr Poole's evidence is that he used the design plan prepared by NB Consulting and believed, he accepted erroneously, that NB Consulting did carry out a necessary inspection at the time the patio slab was poured. NB Consulting did issue a structural certificate which appears to refer to all the works on the Pooles' property on 27 July 2009, including the illegal works. Mr McGeady has sworn an affidavit which states that the certificate does not cover the unauthorised works on the property boundary. It is clear from Mr McGeady's evidence that the appropriate engineering inspection of the works before the concrete was poured did not occur. It is also his evidence that he does not consider it can be certified as structurally sound.
72 Mr Wright's evidence is that he is unable to issue a structural certificate for the completed works for the reasons stated in his report identified above in par 24. It is also his professional opinion that the structure should be demolished in the circumstances as detailed in his report and summarised above. The Applicants' concerns about safety appear justified in these circumstances and that is an important consideration in the exercise of my discretion.
73 While the report of Jeffery and Katauskas Pty Ltd is in evidence suggesting the structure of the cliff face is not adversely affected by the structure built on top, that report was not prepared in accordance with the Expert Witness Code of Conduct and I held during the hearing it could not be relied on as an independent expert report. The report of Mr Wright was prepared in accordance with the necessary rules of court.
Should I draw conclusion about whether current DA likely to be granted consent
74 The Applicants' counsel urged on me that I should form a conclusion on whether the Council is likely to grant consent to the DA now lodged with it in relation to the modified works to exclude the encroachment. Mr Smith provides his opinion that it is likely that consent will be refused. Mr Shiels in the statement of environmental effects accompanying the DA states otherwise. The Respondent's counsel has submitted that if I consider there is a possibility that the Council might grant consent I should make the orders he seeks. I do not consider I need to express any view on this issue as the other factors raised by the Applicants suggest that an order for demolition ought be made in their favour.
Impact of demolition orders
75 The amount required to demolish the illegal works of $42,811 exclusive of GST appears relatively modest in the overall scheme of authorised and unauthorised building work undertaken on the Pooles' property. The demolition is estimated to take two weeks. The unauthorised development is at the rear of the property and is separated from the dwelling by the pool and tennis court. Mr Wright suggests the work will need to be undertaken under the supervision of a structural engineer given the cliff top location, and any order should reflect that together with any other orders the parties consider necessary to ensure the safety of those above and below the works.
76 The one area where it does not appear wise to remove the works is in relation to the stormwater disposal system with drainage pumps now installed with the back up infiltration pond. According to Mr Poole. confirmed by the Bewsher Consulting Pty Ltd report, that is an improvement on the system which existed previously and appears to provide greater capacity to manage stormwater drainage than previously existed. If demolished I surmise there would otherwise be no drainage in place so that I am therefore minded to exclude drainage works from the terms of any demolition order.
Conclusion
77 The declaration in relation to the carrying out of illegal building work sought by the Applicants ought be made in the terms sought. I have determined that I should issue an order for demolition of most of the unauthorised development referred to in the Applicants' Class 4 Application. It is not appropriate to make the mollifying order sought by the Respondent based generally on the intent behind s 124(3) of the EP&A Act of providing the opportunity to regularise unauthorised building work in light of the particular circumstances in this case. The structure presently in place will have to be modified to remove encroachments on neighbouring land in any event. Any order for demolition will need to be modified to reflect my observations in this judgment. Costs should be reserved.