The Applicant is married and has two adult children. His son is married. He and his wife have a daughter. The Applicant's daughter is partnered with no children.
The Dural property consists of a small existing dwelling. The plan is to build a second larger attached dwelling.
The Applicant said that about three years ago, he hired an architect to draft plans for building a second dwelling to his home. This was because his family all live in the small old dwelling. The accommodation "is not enough" and the family require more room. He said he had plans to build another single story house. The plan was for his son, his wife and daughter to remain living in the existing dwelling. The Applicant, his wife, their daughter and her spouse will move into the new larger dwelling. After obtaining council permission to build a second dwelling he was told about two years later he required to establish there were special circumstances to obtain an OBP.
The Applicant said he obtained two independent quotes for the proposed development to build the second dwelling. The estimated cost being approximately $1.5 million. If he was the owner builder, he estimated his cost to build the second dwelling at approximately $938,000.
He said the cost of the independent builder's quotes is "out of our reach" from a financial point of view. He has only approximately $1 million surplus funds available in a mortgage facility to pay for building of the new dwelling. This is different to his evidence below where he said the balance was approximately $1.3 million. He said the mortgage facility, if spent, will cost about $5,000 per month. His son and daughter will each contribute $2,000 per month and he and his wife will pay $1,000.
In cross examination, the Applicant said he runs a business called Aust Alliance. The business is registered in his and his wife's name. In the past, the business involved building duplexes in Epping, Carlingford and Rydalmere for dual occupancies. Once developed the properties were sold. He said that he was project managing the developments and a builder was engaged to build each dwelling. The Applicant's role in this business included hiring the necessary trades to complete the developments. The developments were constructed between 2009 - 2020.
The Applicant agreed that the developments were sold at a profit, all except one. He said he would make a profit of about ten percent. He said some of the profit from the developments was used to purchase the land in Dural which was approximately $2 million. He also contributed to the purchase of the land from earnings he received as an IT consultant and with the sale of a previous property where his family lived. The Applicant purchased the land without any lending facility being extended. The applicant said there is "a couple of $100,000" left from the profits earned in the development business which he has access to. Presumably to contribute to the development of the second dwelling.
The Applicant was asked about whether the remaining loan amount of $1 million would be used to contribute towards the development of the second dwelling. He said this was a loan for the Dural house was which was approximately $1.7 million. He said at the date of hearing he could draw on about $1.3 million, but does not want to do so because of the amount of interest that would be payable. He then said that about $300,000 - $400,000 was used to purchase the Dural property. But, on further cross examination, he said this amount was not applied to purchase the property. I was set aside as a cushion to build the second dwelling. The Applicant did not provide any financial documentation concerning his current financial capacity to build the second dwelling, his financial standing generally, nor, that of his children. Without that evidence, it is difficult to make any finding about whether he is subject to financial hardship which might be a special circumstance.
The applicant said that his son is a civil engineer and his daughter is a full time teacher. His daughter earns approximately $80,000 - $85,000 and his son earns in excess of $120,000. The Applicant said he received an aged pension as does his wife.
The applicant relies upon a schedule setting out his estimate of costs for building the second dwelling if he is the owner builder. His estimate, is based upon his own experience and information he obtained from his last development project (between the years 2017-2020), speaking to friends and a 'few tradies'. I find the quotation is speculative and it has been devised without any degree of precision. Such other information that would have been of assistance is a break-up of the particulars of each amount, for example with the driveway estimate, formwork, concreters estimates, and information of the cost of preparing the ground work and supply of materials. I also find that according to the Applicant's evidence, his estimate is at least partially based upon the last development he completed between 2017 - 2020.
Overall, I accept the Applicant as an honest and reliable witness.
[2]
The Respondent's Position
The Respondent submits that the Applicant has not demonstrated that there are special circumstances to warrant the grant of an OBP. The Respondent contends that the decision to refuse the application is not unfair, unjust or unintended and the correct and preferrable decision is to affirm the decision.
Despite the Applicant's contention that being granted a development consent for the construction of a second dwelling on the property in 2021, that in itself does not amount to a special circumstance. The Respondent also contends that the Applicant's proposal to build an attached second dwelling, does not of itself constitute special circumstances.
[3]
Tribunal's Consideration
The Applicant purchased the Dural property, eight years ago. Since that time, he has had plans to build a second dwelling. It is not in dispute that the Applicant obtained a development consent for the construction of a second dwelling in furtherance of that plan. I agree that this in itself does not amount to a special circumstance.
On 4 November 2022, the Applicant lodged an application for an OBP with the Respondent to develop the Dural property. That application was refused on the grounds that there were no special circumstances demonstrated which would enable the Respondent to exercise a discretion to grant the OBP. The Applicant requested the Respondent to internally review that decision. The Respondent affirmed its previous decision to refuse the grant of an OBP.
The main contention of the Applicant is that the purchase and redevelopment of the Dural property was to provide further accommodation for his extended family. He said he has no other plans in respect of that property.
The Applicant has not adduced any cogent objective evidence, apart from a broad assertion that the dual occupancy proposal was for one of three options given by the Hills Shire Council to approve the development consent. I find this in itself does not amount to special circumstances within the meaning of s32(1A) of the HBA.
He was granted an adjournment to address the absence of adducing evidence to ground a finding of special circumstances. He has failed to do so.
The applicant has made general and mere assertions about his plans for the second dwelling. He has not adequately explained the financial arrangement of how he would be able to fund the construction of the second dwelling. He relies on scant financial projections about the cost of the development, but, he has not satisfactorily explained whether he will be the subject of any financial detriment if he is not granted an OBP. He has failed to put on evidence from his children and his wife about the families plans, their own financial circumstances and how they might financially contribute to the development. The projected costings for the development where the Applicant is the owner builder are not sound in the absence of more accurate primary costs and specifications. This is because, the Applicant has relied upon the costs associated with the last development he built in 2017 - 2020 in combination with conversations he has had with trades people and friends. The development between three to six years ago. I have no confidence in the accuracy and reliability of the estimates provided by the Applicant.
Unlike the factors which were considered in the decision of Hammoudi and McGufficke, there are few identifiable or relevant factors which support the Applicant's contention of special circumstances existing. Those factors which weigh in favour of the Applicant are his age and an assertion about the plan to accommodate his family. What is missing is more cogent evidence about these things. It would have been helpful to have statements from his children and wife about their age, personal circumstances and financial means to fund or contribute to the development and the use of it.
In Hammoudi, the Tribunal found special circumstances where financial hardship was established if the staged construction plan with an OBP was not granted. The Applicant has not provided any objective and cogent evidence to support of his application for an OBP. He has made mere assertions.
I find the Applicant has failed in this application to establish "special circumstances".
In the result, the decision of the Respondent made on 25 November 2021 is affirmed.
[4]
Orders
1. The decision of the Respondent made on 25 November 2022, is affirmed.
[5]
I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.
Registrar
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: 28 August 2023
A review of case law reveals that the concept of 'special circumstances" is commonly found in the areas of criminal law, professional disciplinary matters in relation to costs, applications for security of costs and in the social security arena concerning beneficial exercise of a discretion. In Topp and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2010] AATA 99, the AAT considered the meaning of the term "special circumstances" in relation to its use in section 1184K of the Social Security Act. Section 1184 allowed for the Secretary of the Department of Social Security to exercise a beneficial discretion "if it is appropriate to do so in the special circumstances of the case."
Relying on a Full Federal Court decision in Beadle v Director General of Social Security [1984] AATA 176, the AAT considered that if something unfair, unintended or unjust had occurred which was out of the ordinary, (my emphasis) this might constitute special circumstances justifying the exercise of the discretion - see Topp's case - see paragraphs 21 and 38-40.
The AAT's analysis in Topp's case also indicates that the determination of the existence of "special circumstances" vested a broad discretion in the decision maker.
In Hammoudi v Commissioner for Fair Trading [2016] NSWCATOD 57 and McGufficke v Commissioner for Fair Trading [2022] NSWCATOD 176, the Tribunal considered factors which could amount to special circumstances, which is not exhaustive, as being: age, retirement, health, use of the development, familiar relationships and financial hardship.