Glaser v Poole

ACR Trading Pty Ltd v Fat-Sel Pty Ltd (1987) 11 NSWLR 67; 64 LGRA 177 CASES CITED: Tynan and Ors v Meharg and Newcastle City Council [1998] NSWSC 592 Warringah Shire Council v Sedevcic (1987) 63 LGRA 361 Willoughby City Council v Dasco Design & Construction Pty Ltd [2000] NSWLEC 257

DATES OF HEARING: 3 August 2010 4 August 2010

APPLICANTS Mr P Tomasetti SC SOLICITOR Gerald Aronstan LEGAL REPRESENTATIVES: RESPONDENT Mr I Hemmings SOLICITOR M E McMahon & Associates

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

JUDGMENT 1 Her Honour: The Applicants seek a declaration that specified development on the Respondent's property in Hardy Street Dover Heights is illegal as it has been built without development consent under the Environmental Planning and Assessment Act 1979 (the EP&A Act). Part of the works encroach onto the Applicants' land in Onslow Street and the land of a neighbour in Onslow Street. Consequential orders for demolition are sought. The development consists of: (i) demolition and removal of a timber deck and incinerator; (ii) construction of a reinforced concrete framed structure comprising a storage room, pool shower and pump room 4.7m 2 in total floor area and window and full height glazed sliding doors across the western elevation; (iii) construction of raised and enlarged reinforced concrete deck 67m 2 in area, paving and glass balustrade; (iv) construction of reinforced concrete stairs to connect deck to spaces below.

2 The Respondent admits that the works were erected without development consent contrary to the requirements of the EP&A Act. The issue is therefore whether the Court should exercise its discretion in making the declaration or orders sought by the Applicants, or other orders. The Respondent has proposed orders which require demolition of the development but such order is stayed to allow an application for development consent (DA 330/2010) for a structure on her land which removes the encroachments on the Applicants' land and an application for a building certificate (BC 61/2010) in relation to the structures on the land apart from the encroachment. These applications have been lodged with Waverley Council (the Council). 3 The Respondent's land and the Applicants' land share a common boundary. The shared boundary is close to the top of a 15m cliff located at the rear of the Applicants' land. The works have been carried out on the cliff at or over that boundary immediately above the Applicants' land.

4 The unauthorised works consist of the enlargement of the original timber deck and its expansion and replacement by a concrete patio slab. The space between the deck and the slab is enclosed by masonry and glazed walls with floor to ceiling sliding doors along some 9.6m of its western wall. The enclosed space contains: (i) at its southern end, a space of about 10m 2 which accommodates a stormwater detention tank equipped with a pump to deliver water to the gutter in Hardy Street and swimming pool pumping equipment; (ii) a pool shower room of about 9m 2 ; and (iii) a "storage area" of about 27m 2 (internally).

At the northern end of this room, there are steps leading up to the deck alongside the tennis court. 5 The structure encroaches onto the Applicants' land by 0.8m2. A low brick wall, planter boxes and fence encroach 2m2 into the Applicants' land. The protruding element (crank at 45o) of the fence makes the total encroachment 11.2m2. The structure also encroaches onto neighbouring land. In Class 3 proceedings the Respondent has agreed to remove the crank in the fence which creates the protrusion over the Applicants' land under the Encroachment of Buildings Act 1922. The Class 3 proceedings have been recently discontinued on terms which include that this be done. Applicants' evidence 6 Mr Glaser's affidavit dated 7 June 2010 attests to the existing circumstance before the work commenced. A lightweight open timber deck ran along the common boundary on the Respondent's land and was cantilevered out from an existing 2.5m high sandstone wall set back at a varying distance averaging 2.5m from the common boundary. The edge of the deck was set back about 0.5 and 1m from the common boundary in relation to the land. Apart from an incinerator at the northern end the area under the deck was generally open. The deck was hidden from view by dense vegetation on the Applicants' land in front of and against a chain wire fence located on the Applicants' side of the boundary at the top of the cliff. Substantial vegetation was removed from the Applicants' land on the top of the cliff by the Respondent when the work was carried out including on his land.

7 When notice of DA 365/2007 for the development on the Respondent's land near her house was received from the Council no objection was made as there was no work indicated to be done at or near the common boundary. Work commenced in October 2008 and continued to May 2009. There was no notice of the work not the subject of the development consent. The work was concealed from view during construction by hoarding against the wire fence erected along the crest of the cliff as well as existing vegetation.

8 Mr Glaser noticed the new structure when part of the hoarding had been taken down in March 2009 and he saw the extent of the structure for the first time. He sent an email to Mr Poole on 26 March 2009 raising concerns about the work because of its size and appearance. A lengthy letter from Mr Poole dated 24 October 2010 was received which identified what Mr Poole considered was done and why. He stated that he had no intention of building on the Applicants' property but this explanation is not accepted by Mr Glaser as he believes Mr Poole had a survey plan showing the property boundary on 9 September 2008. A habitable room has been constructed under the enlarged deck with large windows. Mr Poole stated that this was to be used for storing pool and gardening gear but now understands that it may be used for a gym.

9 On 19 November 2009 the Council refused development consent for a retrospective DA for the work carried out to which the Applicants and two other neighbours in Onslow Place objected (I note that a reason for refusal stated in the Council's notice of determination of that DA are impacts on privacy of surrounding neighbours, inter alia).

10 Mr Glaser believed Mr Poole was aware of the boundary location as he received a survey plan of this from his architect which showed the boundary line, the actual cliff line and the existing fence line before the work commenced. 11 The Respondent should have been aware of the encroachment as the survey drawing as well as the construction certificate drawings for the legal building work showed the position of the boundary.

12 Mr Glaser is concerned about safety as the structure has not been properly certified by a qualified engineer. His home is located directly under the structure at the bottom of the cliff. Safety concerns were cited by the Council as the reason for issuing the order for demolition on 20 July 2009.

13 The second affidavit of Mr Glaser dated 23 July 2010 responds to the Pooles' defence that there is negligible impact on the amenity and enjoyment of their property. Mr Glaser refers to the designing of the house by his father in law, an architect, to respond to the site and create a private and tranquil home. He stresses the importance of privacy in the home and the loss of that privacy being experienced due to the ability of persons standing on the illegal works to see into the rooms at the rear of his house and courtyard areas. The Glasers have experienced a substantial loss of amenity as a result. This has resulted in considerable concern and anxiety for the whole family. He considers the structure is unsightly and towers over the Glasers' home. He also states that an 8kg rock fell from the cliff face and injured him on 26 October 2009. No such event has ever occurred before and this has heightened his concerns about safety. There is more sand and mud washing off the cliff than there has been previously and he is concerned that this is a result of the new stormwater system installed. This situation has continued for over a year and is disturbing the family's peaceful and quiet enjoyment of the property. Photographs attached to his affidavit show the works in the vicinity of the Glasers' house. He is concerned about the loss of value to his property as a result of the illegal works.

14 An affidavit of Mrs Glaser dated 22 July 2010 attests to the profound loss of privacy due to actual and potential oversight of the private courtyard area and now into several rooms at the rear of the house. This has necessitated a change in behaviour for all the family. She attests to the importance of her home. She is concerned about the stability of the new structure as all four bedrooms are located directly below the new structure. She is concerned the structure will be used for parties and party goers will throw objects from the deck. She is not satisfied that the new structure has been built in compliance with building regulations or that the cliff face is strong and stable enough to support the new structure. No Council oversight or checking of the structure has occurred. 15 An affidavit of Mr Kampel, father in law of Mrs Glaser and retired architect, dated 22 July 2010 was read. He designed the Glasers' house, lived in it previously and identifies that the house was designed with the aim of achieving maximum privacy on that site with the house and courtyard oriented towards the cliff face. That privacy has now been lost as a result of the illegal structure above.

16 Mr Smith, planner, provided an expert report with his opinion of whether or not the development undertaken would be likely to have been granted development consent if a DA for it were submitted to the Council, and whether he would recommend the grant of development consent. He sets out what has been removed and the new structure at par 3.2, 3.3, 3.4 of his report. The encroachment is described at 3.5 and 3.6 as follows: The result of all this work is that the western edge of the structure extends onto the applicants' property in two places: (i) commencing at a point some 3.5 metres from the southern boundary of the Respondent's property and widening to 280mm at about 6 metres north of that boundary, and (ii) commencing about 6m from that boundary and widening to 340mm at the northern boundary of the applicants' property. The deck and wall step back about 300mm some 6 metres from their southern ends. From there, a low brick wall rising about 500mm above natural ground level continues northwards. Planter boxes, measuring 400mm wide, and 500mm deep and 1000mm long, have been placed on top of that wall against the fence (see 3.7 below). That fence would prevent the planter boxes being dislodged if they were accidentally bumped during use of the room when the doors were open. If dislodged, the boxes could drop onto the applicant's property. At the north eastern corner of the applicants' property, I calculate that this wall and those boxes encroach about 700mm onto it.

17 The fence is described at 3.7 as follows: A new mesh fence about 3.2 metres high has been erected at ground level. It commences at the step in the deck and stands just west of the low brick wall, encroaching a further 50-70mm into the applicants' property. It extends northwards in a straight line with the result that it is 750mm onto that property at its northern boundary based on the survey in Annexure 7. On the western side of that fence and along the southernmost 6 metres of the deck, there is a protruding element, set at about 45 degrees to the horizontal - some 1200mm wide - and covered with wire mesh and extending about a metre beyond the fence and deck, above the applicants' land. The protruding element extends about 1800mm onto the applicants' land at the northeastern corner of his property. That encroachment reduces to about 1000mm at the southern boundary of the respondent's property. It also adds a metre to the height of the mesh fence, taking it to over 4.2 metres above ground level on the applicants' property above the cliff and some 19 metres above the floor level of their house. 18 The difference between the previous structure and the new structure is: (i) the higher portion of the deck west of the pool now extends to, or across, the boundary for 7m, whereas the former deck extended to the boundary for only 2m; (ii) that deck is now 50mm higher than the previous deck; (iii) that portion of the deck along the tennis court is now 450mm higher than the previous deck; (iv) whereas the previous deck was set back between 350mm and 600mm from the boundary, the western edge of the new deck extends from the boundary to 340mm beyond it; (v) while there was a 1.8m high fence inside the Applicants' property previously, the new fence is now 400mm or more further into it; and (vi) the previous fence did not have the 1.2m wide inclined mesh element extending a further metre into, and above, the Applicants' property. 19 The issue of safety of the structure is important given the close proximity of the Applicants' house to the cliff (1.5m at the closest room). The intended use of the habitable room constructed as part of the illegal work is not known but there is reference on plans to it being a storage area and gym.

20 Mr Smith refers to the objectives for residential 2(a) zones in the Waverley Local Environmental Plan 1996 (the LEP) and sections of the Waverley Development Control Plan 2006 (the DCP) which potentially apply to such a development such as desirable boundary setbacks and size of elevated decks (no more than 10m2). Mr Smith states that in his opinion the modified DA submitted recently to the Council is unlikely to be given consent in light of these instruments.

21 A valuation report of Mr Wotton, licensed valuer, attests that as result of the works and structure being built on the Pooles' land the value of the Applicants' land has been reduced by between 10 and 15 per cent. This was admitted subject to relevance.

22 An expert engineering report of Mr Wright was tendered in which he refers to geotechnical issues, stormwater issues and removal of the encroachment. He advises that the Principal Certifying Authority states that he was not aware of these works so that no critical stage inspections were carried out. He understands from Mr McGeady's affidavit that no geotechnical engineer was appointed prior to commencement of construction to investigate and advise in relation to geotechnical issues. Further cl 5.1.1 of the DCP was not complied with. The work entailed excavation into the top of the rock platform very close to the edge of the cliff within a strip varying between approximately 0.9 and 1.5m from the edge. Clause 5.1.1 requires a geotechnical report to be prepared to address the stability of the site and surrounding properties. The report must confirm that the site is suitable for the proposed development. He states that he is unable to check the structural stability of the completed concrete work without undertaking invasive testing. 23 At the site inspection on 8 July 2010 Mr Wright noted a number of failures. During the inspection, a number of photographs were taken which included: 1. The grated drain at the end of the tennis court (photographs 1 and 2, Appendix A) 2. Cracks evident in the suspended deck of the rear structure (photographs 3 and 4, Appendix A) 3. Apparent different structural element supporting the window frame from that of the floor (photograph 5, Appendix A) 4. The water storage tanks and pump out well (photographs 6 and 7, Appendix A) 5. The different alignment of the sandstone dwarf wall to that of the remaining structure (photograph 8, Appendix A) 6. The interior of the sewer pump out tank (photograph 9, Appendix A) 7. The drainage of the northern portion of the tennis court being spillage over the rock face (photograph 10, Appendix A) 8. View from Onslow Place of the structure (photograph 11, Appendix A) 24 A number of observations were made during the inspection. These included: (a) The support structure for the external wall was not a uniform support with a dwarf sandstone wall not following the alignment of the wall over. (b) The sewer pit was a penetration in the slab which was not detailed on the structural drawings. The sewer pit installation appeared to be incomplete. (c) The overflow pit for the water tank was not detailed on the structural drawings. In addition the pumps were not working and it was only after moving the floats that Mr McMahon was able to cause the pumps to activate. At the stage of activation the overflow tank was full. (d) The overflow from the overflow tank was directed towards the sandstone cliff however Mr Wright was not able to determine where it flowed to. (e) The wall and slab arrangement as built did not match the structural drawings. 25 Mr Wright was asked whether he could provide a certificate of the structural adequacy for the works. He outlines the considerations necessary in terms of being satisfied of the design of the work and inspections conducted during the work being undertaken. Documentation is generally required to be prepared to a certain standard. The adequacy of the design documents prepared by Mr McGeady is critically dependent on the adequacy of some structural elements which existed prior to this construction proceeding, such as the dwarf sandstone wall on the edge of the cliff on which the external wall partly rests and the rear retaining wall on which the patio slab is supported. He details the four inspections that should have been undertaken at 4.1(b) of his report and were not. He identified a number of non-compliances during the site inspection. He concludes that he cannot issue a certificate of structural adequacy due to the lack of evaluation of existing structural elements to support the new structure, that no critical inspections were performed and whether there are inconsistencies between the as built structure and the design documentation. 26 He criticises the Jeffery and Katauskas Pty Ltd, geotechnical engineers, report dated 20 January 2010 prepared at the request of Mr Poole because it makes no assessment of the bearing capacity of the rock nor the adequacy of the existing foundation. He criticises the Bewsher Consulting Pty Ltd report on stormwater referred to in Mr Poole's affidavit as being a generic evaluation. He raises concerns about the system installed for stormwater disposal and the use of an infiltration trench on a rock shelf above a cliff face at p 9 of his report. 27 Annexed to his affidavit is a quotation from demolition contractors quoting $42,811 exclusive of GST to undertake demolition of the works. He considers this is a reasonable quotation and that the work would take about two weeks. 28 In his opinion the building work was not approved and should be demolished as the work on top of the cliff edge makes the structural safety and integrity of the work critical to the safety of the persons living below it.

29 Mr McGeady director of NB Consulting Engineers Pty Ltd (NB Consulting) swore an affidavit dated 8 June 2010. He provided engineering advice to Mr and Mrs Poole in relation to the work for which development consent was obtained on their property. He had no involvement with the illegal works undertaken which required planning consent. Following a site visit on 23 October 2008 with the builder's foreman about the timber deck on the western boundary he prepared a sketch design proposal, a conceptual proposal only, for a reinforced concrete patio slab to replace the existing timber structure. This was not intended as a drawing to be used for construction purposes. The patio slab that was poured was built without the knowledge or approval of his company. There was no opportunity to carry out any inspections in accordance with the requirements identified in the conceptual proposal which included a number of specifications in plan SO1 in addition to the sketch design plan for the slab.

30 Mr McGeady's affidavit of 14 July 2010 sworn in response to Mr Poole's affidavit stated that design drawings are signed by the engineer in charge of a project to signify that the design has been checked and approved by that engineer. The signature was to certify the structural adequacy of the design. He did not certify that the construction was in accordance with the design. The structural certificate issued was not intended to cover the unauthorised structure that has been built on the western boundary of the property. He is not satisfied that all the piers are founded on ground with a bearing capacity of 600kPa in accordance with the design plan. The low stone wall shown in photograph RP1 attached to Mr Poole's affidavit should have been investigated to ensure that it was adequately founded and not in any danger of collapsing and falling towards the edge of the cliff. If there was any risk of collapse he would have ordered the stone wall be removed. In his opinion it would not be difficult to demolish the new structure as the new structure does not provide lateral or vertical support to the existing structure, is not integrated with the existing structure, and the patio slab merely rests on top of the existing stone retaining wall at one end, without being tied into this wall. An appropriately qualified demolition expert to undertake the demolition is advisable due to the proximity to the cliff.

31 Mr Nick Cooney, architect, swore an affidavit on 28 June 2010. He was engaged in the development for which consent was obtained in the area close to the Pooles' house. He attests to the advice given orally to Mr Poole on 24 July 2008 that development consent was needed for any work beyond the replacement of the existing deck. He was not involved in the illegal works undertaken. Respondent's evidence 32 Mr Poole swore an affidavit dated 24 June 2010. He is the husband of the Respondent and was involved in providing instructions for the alterations and additions at her property. He did not believe the building encroached on the Applicants' property at the time of construction. He refers to plans showing the existing structures and what has been built, and photographs of the building process showing the preparative work for piers under the concrete patio slab, inter alia. He had a design plan prepared by NB Consulting for the concrete patio slab which the builder used for the construction. 33 A report of geotechnical engineers Jeffery and Katauskas Pty Ltd dated 20 January 2010 was attached to his affidavit. This states that following an inspection from the cliff top and from a neighbouring property in Onslow Place the cliff face shows no structural defects which were observed as being affected by the newly constructed concrete deck and storage room below. Some loose blocks were observed in the face. The report was prepared without access to the Applicants' property.

34 Mr Poole's second affidavit dated 13 July 2010 identifies the stormwater pumping system which has been installed. 35 Mr Poole was cross-examined by the Applicants' counsel as to whether he was registered as an owner builder and he replied he did not as he was not then aware of the need to do so. He did not receive advice about the need to obtain engineering advice from anyone such as the builder he employed to do the work. As to whether he genuinely believed that development consent was not required, he could not recall the advice of Mr Cooney that development consent would be required for work over and above replacing the existing timber deck. He did not deny that Mr Cooney might have told him that consent was required if more work than that was undertaken. It did not occur to him to get a survey of the boundary before the work commenced and he acknowledged this should have been done. 36 A report by Bewsher Consulting Pty Ltd states that the stormwater system implemented is very typical of the works which might be employed in similar circumstances and is an improvement of the earlier stormwater disposal system. 37 Mr Poole was not aware the work would encroach onto the Applicants' property. He believed the boundary was on the outside edge of the low stone wall and built to that edge. He now knows that this is not on his property. He stated he was always concerned about safety and sought advice from his builder as he was concerned about the incinerator collapsing. He had no previous experience as an owner builder and believed he was working on the recommendations of an architect. When the works were done he used the design plan prepared by NB Consulting (p 21 exhibit B). He generally understood the plan. He was not aware of drawing SO1 (which specifies what testing must be undertaken of rock to be used as foundation to ensure the stability of a structure). He did not obtain geotechnical advice before the work commenced. He did not know rock had different strengths. He agreed the work undertaken was clearly more substantial than what had been there previously. He knew that inspections were needed and he thought NB Consulting was doing this work. He thought Mr McGeady had inspected the work before the concrete was poured. The design document was amended at a later date and changes were made to the patio in conformity with that change. He acknowledges that the load bearing of the rock was not assessed and should have been. He believed that NB Consulting certified the work by issuing the structural certificate dated 27 July 2009. 38 Mr Poole did not know where the pipe leading to the cliff face went as shown in photograph RP3. He relied on his experienced builder Mr Smith in relation to the drainage to be implemented. He denied there was any attempt to hide the work. Wooden sheets were placed around the chain fence to protect the Glasers from falling soil debris not to hide the work from view. He did not know if a jackhammer was used. He put a shovel down one of the holes at one time. He was not on the property at all times when building work was being undertaken nor was he required to be. He did not know if the piers were dug into the rock. He has planted a tree and other plants on his own property and one tree on the Applicants' property as he understood that is what Mr Glaser wants. He has not told Mr Glaser what the intended use of the area under the deck is to be. Originally he had no intention to build below the deck but as the decision was made to replace the deck it was easy to enclose the area under the deck for a storage and/or gym area. He talked about using the area for a gym from July 2008. He had not decided in August 2008 finally to use the area as a gym. He took Mr Cooney's drawings and did sketches and enlarged the deck to 67m2. No architectural drawings were prepared for this work. 39 When asked about the Jeffery and Katauskas Pty Ltd report stating that no access was available to the Applicants' property he said the engineer did not ask for it. Applicants' submissions Failure to comply with planning legislation 40 The Respondent carried out illegal work knowing that development consent was required under the EP&A Act. In addition, no construction certificate has been applied for. The mandatory requirements of the EP&A Act in relation to the appointment of a private certifier, the issuing of a construction certificate and the issuing of an occupation certificate have not been complied with. Privacy/amenity impacts 41 The Applicants have suffered major loss of privacy and amenity to their home and their quiet enjoyment of their home has been entirely lost as they are now conscious of being overlooked at any time of the day and night. As they previously enjoyed a very high level of privacy this is highly unsettling and has resulted in changes in behaviour for all family members. The deck and fence are clearly visible from the courtyard. The habitable room below the deck has large openings on its western wall from which the Applicants' land can be viewed. The structure is unsightly and not in keeping with its surroundings. Loss of value 42 The Applicants' property has been reduced in value as a result of the illegal works, as found in the report of Mr Wotton, valuer. Current DA unlikely to be successful 43 The evidence of Mr Smith, planner, is that in his expert opinion the structure is unlikely to obtain development consent under the LEP as it fails to comply with the objectives of the residential 2(a) zone. A number of generic controls in the DCP are not satisfied such as the need for geotechnical assessment, protection of privacy, elevated decks should be limited to 10m2 and a depth of 1.5m to minimise privacy, and noise impacts on surrounding properties such as the deck size and boundary set backs. The Building Code of Australia (BCA) states that a class one building should not be erected within 900mm of the boundary unless the wall within is 900 mm fire rated. The building breaches the BCA. He would not recommend approval of the structure due to its impact on the natural and built environment. Safety 44 Mr Poole undertook the work as an owner builder and there is no evidence he obtained a permit as required under s 12 of the Home Building Act 1989. Prior to the commencement of building work there was no geotechnical assessment of the structural capacity of the ground and the stability of the cliff to take the bearing pressures and loads of the unauthorised building as required by the DCP. The works required the removal of vegetation, excavation of soil and rock, digging of trenches and piers and involved construction of a habitable room in reinforced concrete and masonry blockwork. 45 Mr Wright's opinion is that he cannot certify the works as structurally sound and he considers these should be removed. There are major safety concerns as expressed in the evidence of Mr Wright. The Applicants remain very concerned about safety given the location of the unauthorised and substantial concrete and glazing work undertaken on the cliff top immediately on the boundary. This is exacerbated by the experience of Mr Glaser of an 8kg rock falling off the cliff and striking him. All the bedrooms in the house are located at the rear of the property with the closest room being only 1m from the cliff face. 46 The Council issued a demolition order to the Respondent on 20 July 2009 on the basis that the works may not be structurally adequate and the safety of occupants or the public may be at risk. 47 Mr McGeady's evidence is that he cannot certify that the structure is structurally sound as he was not involved at the relevant time with the undertaking of the work. 48 The Respondent has provided no evidence that the works are safe and has not cross-examined any of the experts called by the Applicants who raise concerns about the structure. The Court is duty bound to consider and determine the issues raised by the Applicants in the exercise of its discretion under s 124 of the EP&A Act. That discretion is wide. The orders proposed by the Respondent are not final in that they postpone the demolition of the works for a potentially lengthy period pending the determination of a building certificate application and a development application for modified works which remove the encroachment and possible appeals to this Court. The issuing of the building certificate will not lead to finality as between these parties as it does not prevent further action by the Applicants for an order for demolition. The effect of s 149E of the EP&A Act is that the Council is prevented from taking action to seek demolition for a period of seven years. Behaviour of Mr Poole 49 Mr Poole has acted contumaciously and with complete disregard for the relevant planning laws. He was aware of the location of the boundary between the respective properties given that he was provided with a survey and should have taken greater care in any event to ensure the development was on his land. He was told by Mr Cooney that development consent was required and ignored that advice in undertaking the work. 50 The Court has broad discretion in making orders under s 124 as held by the Court of Appeal in Warringah Shire Council v Sedevcic (1987) 63 LGRA 361 confirmed also in ACR Trading Pty Ltd v Fat-Sel Pty Ltd (1987) 11 NSWLR 67; 64 LGRA 177. The exercise of that discretion was also considered by the Court of Appeal in Tynan and Ors v Meharg and Newcastle City Council [1998] NSWSC 592 and by parity of reasoning a similar outcome should follow in this case.

Respondent's submissions 51 The breach of the EP&A Act by the failure to obtain development consent is admitted. The Respondent and her husband have attempted to resolve the proceedings by negotiation without success as can be seen in the correspondence between the parties and offers of compensation for the encroachments. The issue before the Court is the appropriate exercise of discretion under s 124 of the EP&A Act. The Respondent seeks final orders in the terms handed up. These provide for demolition of the unlawful works subject to the determination by the Council (or the Court on appeal) of the lodged but undetermined applications for development consent and a building certificate. This is the outcome referred to in the letter dated 15 August 2009 from Mr Glaser to the Council objecting to the retrospective DA lodged with the Council. That states that the council should reject that DA and order Mr Poole to submit a new DA respecting the property boundaries, privacy and compliance with all the Council's controls. Mr Poole explained in his letter of 24 October 2009 to Mr Glaser how the work came to be carried out. That letter is apologetic and conciliatory. Compensation was offered appropriately for the encroachment. Class 3 proceedings under the Encroachment of Buildings Act were commenced and have been discontinued as no agreement could be reached. A DA (DA 330/2010) and building certificate (BC 61/2010) for a structure which removes the encroachment were lodged with the Council on 2 July 2010 in order to regularise what has been built with appropriate modification. 52 The Court's discretion under s 124 is wide. It is not sufficient to demonstrate that a breach of the law has occurred, the Applicants must satisfy the Court that it should exercise its discretion a certain way. The principles are articulated in Sedevcic and Fat-Sel. It is up to the Court in each case to determine what weight should be given to particular factors. The valuation evidence of Mr Wottan has been admitted subject to relevance. Under s 79C impact of development on the value of neighbours' land is not a relevant consideration. Nor is it relevant to the exercise of discretion. It is not unusual for the Court to allow an opportunity to regularise a breach, see for example Willoughby City Council v Dasco Design & Construction Pty Ltd [2000] NSWLEC 257. 53 The Applicants say the mollifying orders ought not be made because of concerns about structural adequacy, geotechnical, hydrological concerns and potential impact on amenity. In relation to structural adequacy, the structural design plan for the structures was signed on 7 November 2008 by NB Consulting, that was amended on 16 February 2009 suggesting modifications were made to the works. A structural certificate was issued for the work on 27 July 2009 by NB Consulting. The certificate speaks for itself regardless of Mr McGeady's evidence that the works were not in fact the subject of the certificate. Not until 14 July 2010 in his affidavit does Mr McGeady positively assert that the certificate does not cover the illegal works. The determination of the DA and building certificate application before the Council will require the Council to be satisfied that the structures are entitled to remain as structurally adequate. Mr Wright's evidence needs to be considered in relation to the assumption he makes that the only information he considers cannot be obtained is that requiring partial demolition. The current DA before the Council does involve partial demolition and that information can therefore be obtained. The Council order requiring demolition does not provide any evidence that the building is likely to fail and does not refer to possible impacts on the Glasers as the reason for it being issued. 54 The geotechnical assessment by Jeffery and Katauskas Pty Ltd of the cliff obtained by the Respondent states that the cliff has no structural defects that would be affected by the newly constructed concrete deck and storage room below. Some loose blocks are identified and the statement is made that the risk posed is unrelated to the construction of the concrete deck and storage room. There is no evidence that the rock which struck Mr Glaser from the cliff was a result of the works undertaken by the Respondent. 55 The report on hydrology by Bewsher Consulting Pty Ltd prepared for the Class 3 proceedings concludes that the drainage work that has been carried out is typical of what might be employed and improves the circumstances. A pump system has been installed for managing stormwater with an infiltration system to be used only as a back up. The situation is improved. 56 Amenity concerns are raised but there was already potential for overlooking from the pre-existing deck as can be seen in photographs attached to Mr Glaser's affidavit. Those impacts can be properly considered by the Council as part of the DA process. The Respondent would accept orders requiring the erection of a physical barrier to prevent access to the current patio any further west than existed previously and limiting access to the room under the patio slab. 57 Mr Poole's evidence is that at the time the works were carried out he did not believe that development consent was required. Mr Cooney's evidence of what he told him is irrelevant. It is also irrelevant that Mr Cooney was not cross-examined about the conversation. 58 Further matters to consider are that the Applicants delayed in commencing these proceedings in April 2010 given that the works were first noticed in March 2009. The Pooles have attempted to resolve matters other than by Court processes. The impacts on privacy can be mitigated by the terms of any orders. Where there is a possibility that the consent authority would permit some of the unauthorised structures to remain it is inconsistent with the objects of the EP&A Act and the breadth of its discretion in s 124 to require the demolition of the entirety of the structures. Finding 59 Section 124(1)-(3) states: (1) Where the Court is satisfied that a breach of this Act has been committed or that a breach of this Act will, unless restrained by order of the Court, be committed, it may make such order as it thinks fit to remedy or restrain the breach.

(2) Without limiting the powers of the Court under subsection (1), an order made under that subsection may: …, (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.

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