HFTT Pty Limited v Manly Council

Judgment 1SENIOR COMMISSIONER: On 20 November 2013, Manly Municipal Council issued an order to HFTT Pty Ltd to demolish and remove all framework and materials associated with two protruding copper wings/fins, as the structures were described in the orders, on the second flood windows of the north-western elevation of Unit 4/110-112 Bower Street, Manly. 2The company, the applicant in these proceedings, appealed against the order and did so on a variety of grounds that were set out in a Statement of Facts and Contentions filed on 29 January 2014, a document that became Exhibit A in the proceedings. The plans for the development on the site had been the subject of four approved modification applications pursuant to s 96 of the Environmental Planning and Assessment Act 1979. 3The proceedings commenced as a conciliation conference conducted pursuant to s 34 of the Land and Environment Court Act 1979. After I became satisfied that conciliation was not likely to resolve the matter, I terminated the conciliation conference and, with the consent of the parties, proceeded to commence to hear the matter on site at the conclusion of the conciliation phase. 4I note that, for the purposes of the determinative phase, the parties' legal representatives, on proper instructions, both agreed to me carrying forward the matters that we observed during the course of the site inspection and the inspection from both the public domain in Bower Street and from a property on the southern side of Bower Street owned by Mr Middleton who was an objector. 5We had heard from Mr Middleton, at the commencement of the conciliation phase, to inform me and the parties of his concerns. His concerns were discussed during the course of the conciliation phase and what he said prior to the conciliation phase was carried forward to and became part of the evidence in the determinative proceedings. 6During the course of the determinative proceedings, it became apparent to me that I needed to explore the question of what was the current status of the strata plan that was either proposed or in effect for the development that was on the site. This was necessary because, at least as I understood it, for the purposes of these proceedings (and confined to being, as I understood it, for the purposes of these proceedings), the applicant did not press the first of its contentions, namely that the structures that were the subject of the order had, in fact, at law formed part of the approved plans under development consent 384/08 as modified. 7I express no opinion on that point that point having been expressly disavowed for the purposes of these proceedings. It seems to me therefore to the extent that it might become relevant, there is no issue of res judicata arising with respect to that not pressed contention. 8However, having heard evidence from Mr Furlong, on behalf of the applicant (giving planning evidence), and from Ms Shenkar, a senior planner employed by the council, giving evidence on the merits of matters, it became necessary to return to the court for the purposes of understanding the legal position that arises. 9I have been provided with a copy of the registered strata plan that applies to the site. That strata plan was registered on 23 January 2014, being a date not only after the order was issued, but also after the time had expired within which the applicant was obliged to comply with the order. 10I note in these proceedings that an appeal against an order does not act as a stay in any fashion absent some specific application for that to occur, but if anything were to come from that that is a matter to be explored in other proceedings before some differently constituted tribunal - it not being a jurisdiction with which I could engage myself. 11It seemed to me in the discussion that arose this afternoon following the evidence that was given by Mr Teah, a solicitor who had been responsible for the drafting of the by-laws for this site and who had caused the strata plan to be registered, that the registration of the strata plan constituted a novus actus interveniens in a fashion that made it functionally inappropriate for me to consider the merits of the present application. 12That arises because s 65A of the Strata Schemes Management Act 1996 enables the owners' corporation or an owner of any lot within a strata scheme to carry out work to the common property but to do so only if a special resolution has first been passed at a general meeting of the owners' corporation that specifically authorises the activity that is proposed to be carried out. 13The company remains, at this time, an owner of a lot within the scheme. It would therefore be possible for the company to give effect to any order that I might make in substitution for the council's order, or for the council's order if I were simply to uphold it, but only if a special resolution of the owners' corporation had been passed specifically to authorise such work to be carried out. The consequence of that is that if I had concluded that particular work should be ordered to be carried out and I were to specify that that work, that work could not be carried out unless a special resolution of the body corporate were to authorise that to occur. 14It would seem to me, I having concluded as I have indicated to the legal representatives of the parties, that I would consider it appropriate that some work be carried out but that it was not, in my opinion under all the circumstances appropriate at this time to identify what that would be, lest if there were to be some future proceedings that might act in a prejudicial fashion. Indeed, I am cautious (but it is necessary for the purposes of the conclusion that I have reached) about even indicating that I had concluded that some work should be carried out. That is, that some element beyond leaving the fins in place as they are the appropriate outcome of the proceedings. 15Having said that, if I were to adjourn these proceedings to permit any merit determination to be deferred until a special resolution were to be passed by the owners' corporation that would authorise the company to carry out whatever it was that I might order in the future, there are significant difficulties, in my view, in that approach. First, the owners' corporation might not pass such a resolution. Second, the company might dispose of the holdings that it has in the strata scheme, thus rendering the order even more difficult to comply with because it would then be works proposed to be carried out to the common property by someone who was no longer an owner within the scheme. 16I have therefore concluded, as I put to the legal representatives of the parties, that the only appropriate way to deal with this matter without running those risks, or without making some form of merit order that would be susceptible to attack on the basis of being fundamentally inconsistent with the decision of the Court of Appeal in Weal v Bathurst City Council [2000] NSWCA 88; (2000) 111 LGERA 181, without making any determination of the merits of any substantive nature whatsoever, that I should uphold the appeal and discharge the order. 17Doing so has a number of consequences. 18The first is that it leaves open to the council, should it wish to do so, to issue a fresh order against the body corporate, or any other owner or entity that the council might wish to do so at some future stage without me having expressed any definitive opinion about what should or might happen and leaving it, in my view, sufficiently unsullied that a future decision maker could aver the tentative conclusion that I had expressed with respect to there needing to be some intervention with the fins. 19Second, I should indicate that upholding the appeal and discharging the order does not in any way amount to a judgment on or criticism of the council in making the order in the first instance, that being one side of a coin that I need to describe. 20The third is that it does not amount to me expressing any opinion on whether or not, as I earlier noted, might be the position as contended for originally by the applicant that the structures are in fact authorised as a consequence of a modification of the earlier plans. 21The council issuing the order and the applicant during the course of this morning's hearing, not pressing the contention that the structures that are the subject of the order were in fact authorised simply enabled the efficient operation of a conciliation process as envisaged by the Act and that process, having failed, the speedy proceeding to deal with the appeal to finality in the fashion that, although not anticipated by either of the legal representatives or by me at the commencement of the proceedings, became necessary. I do not consider there has been any inappropriate conduct by either party during the course of the proceedings as a consequence. 22However, it is necessary that the overall result for the reasons that I have enunciated (which have nothing to do with the merits of the matters that are raised by the council) is that the appeal must be upheld, that the order given by the council and dated 20 November 2013 to demolish or remove the fins on the southwestern face of the building erected at 110-112 Bower Street, Manly is discharged. 23Gentlemen, I will have this decision transcribed. It may not be available to you for four or five weeks but I will be able to issues the orders if either of you require them expeditiously, probably by early next week. 24VERGOTIS: I might have missed something, Commissioner 25COMMISSIONER: I'm proposing to retain the exhibits. 26VERGOTIS: With respect to the issue of costs, are you minded to make any comments about that? 27COMMISSIONER: No, I simply make those remarks that I have, particularly the concluding remarks lest either of you might wish to chance your arm on that question of costs before someone else. To go further than that and make some express opinion as to the appropriateness of costs would be inappropriate in my view. Tim Moore Senior Commissioner NOTE: Later that day, orders were made in chambers to formalise this decision. Those orders were in the following terms: (1)The appeal is upheld; and (2)Pursuant to s 121ZK(4)(a) of the Environmental Planning and Assessment Act 1979, the order given to the applicant by the respondent dated 20 November 2013 to remove parts of the building at 110 - 112 Bower Street, Manly is revoked. 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: 26 March 2014