Khouri v Commissioner for Fair Trading

NCAT Occupational|2023-04-20

The applicant for the owner-builder permit

As referred to above, the Respondent submitted that at the time the Respondent's Submissions were filed, the available evidence pointed to Mr Ayoub as essentially the applicant for the owner-builder permit. In his affidavit, Mr Ayoub states that he is the cousin of the Applicant and also her representative "as she is not in good enough health to represent herself in this matter". He then refers to the Applicant lodging a development application for the Property, obtaining a Certificate 1 in Construction and being granted development consent for the Property on 22 June 2022. He then states that on 26 September 2022, "I applied for an owner-builder permit through Service NSW on behalf of the Applicant who accompanied me to Service NSW registry in Wetherill Park". He continues on to state that at the time of application, "I also completed an "Additional Details Form" to provide special circumstances to obtain an owner builders permit for a dual occupancy".
The affidavit contains a number of references to the actions taken in relation to the owner- builder permit, the internal review and the application to this Tribunal in relation to which Mr Ayoub uses the words "I" and "we", including the following: On 16 October 2022, I provided a letter to NSW fair Trading seeking an internal review with further information surrounding the circumstances which we sought to obtain an owner builders permit. In the letter we mentioned the following: … On 3 November 2022, I received a decision on the internal review, and it was refused. The letter afforded me an opportunity to apply for a further review with the NSW Civil and Administrative Tribunal.
The email address provided in the Application was that of Mr Ayoub and from the evidence before the Tribunal, correspondence relating to the Application has been sent to and from this email address, including the request for the internal review on 16 October 2022. As referred to above, Mr Ayoub also appeared as agent for the Applicant in this matter prior to the hearing.

Special circumstances

On occasion throughout these proceedings, there was reference to the proposed new dwelling for which the owner-builder permit is sought as either a secondary dwelling or a second dwelling. In the Application, the new dwelling is referred to as a "detached dual occupancy". It was not in dispute that the new dwelling falls within the definition of a dual occupancy in the Standard Instrument and I find this to be the case.
It was also not in dispute that the Application is in relation to residential building work that relates to a dual occupancy. Accordingly, an owner-builder permit must not be issued to the Applicant unless the Tribunal is satisfied pursuant to s 32(1A) of the HBA that special circumstances exist that justify the owner-builder permit authorising the Applicant to do that work. If the Tribunal is not satisfied, the owner-builder permit must not be issued.

Meaning of special circumstances

There are no guidelines issued as to the definition of special circumstances in the context of the HBA. The term "special circumstances" as it appears in s 32(1A) of the HBA has previously been considered by this Tribunal in the matters of Hammoudi v Commissioner for Fair Trading [2016] NSWCATOD 57 (Hammoudi), McGufficke v Commissioner for Fair Trading [2022] NSWCATOD 84 (McGufficke) and most recently in Oslear v Commissioner for Fair Trading [2022] NSWCATOD 110 (Oslear).
In Hammoudi, Senior Member Scahill said, at [64 - 67]: 64 There are no guidelines issued as to the definition of special circumstances in the HBA context. The Tribunal refers to a number of factors in interpreting the meaning of special circumstances: • An understanding of the term "special circumstances" generally; • the purposes of the Home Building Act 1989; • the purposes of an owner-builder permit in the context of the HBA; • the legislative purpose behind the amendment to the HBA in section 32(1A) against the issue of owner builder permits for dual occupancies; • the scope of special circumstances as set out in the Minister's Second Reading Speech in May 2014; and • the Applicant's claim for special circumstances in the context of the permit sought. Meaning of special circumstances 65 A scan of case law shows that the concept of 'special circumstances" is known 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. 66 In Topp's case, 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, (this Tribunal's bolding) this might constitute special circumstances justifying the exercise of the discretion - see Topp and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2010] AATA 99 paragraphs 21 and 38-40. 67 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 the Second Reading Speech in May 2014, the Minister stated: The amendment also addresses home builders. The Act currently allows home owners to do building work on their home by obtaining an owner-builder permit from Fair Trading. The owner-builder provisions are being reformed to help ensure that the permit system is not being used inappropriately for commercial reasons as a means of circumventing the licensing requirements. These reforms will also help manage health and safety risks associated with owner-builder work. Currently owner-builders are only permitted to undertake work relating to a single dwelling or a dual occupancy. There are concerns that some commercially orientated, unlicensed people may be using the permit system in order to undertake dual occupancy work on land with a view to subdividing the land and on-selling it at a profit. The owner-builder permit system is not intended for such commercial development work. Owner-builders will not be able to obtain a permit for work on a dual occupancy unless the commissioner is satisfied that special circumstances exist, such as where a family could demonstrate legitimate non-commercial reasons for the work or where refusing the permit could cause family hardship.
In relation to the Second Reading Speech, Senior Member Scahill said in Hammoudi at [71] that the "Tribunal understands this to mean that the amendment is aimed at avoiding the use of owner-builder permits to create a dual occupancy for commercial purposes such as immediate on selling or subdivision for financial advantage."
In McGufficke, Senior Member Mulvey said at [48] that the "overall purpose of the HBA is to protect consumers in the contracting for and the construction of residential dwellings." He later refers to extracts from the Second Reading Speech and at [51] said: I understand this to mean that the amendment is aimed at avoiding the use of owner-builder permits to create a dual occupancy for commercial purposes such as immediate on selling or subdivision for financial advantage. It could also include renting part or whole of the developed property for financial gain.
The Tribunal held that the Applicant in McGufficke had failed to establish "special circumstances" and affirmed the decision to refuse the application for an owner-builder permit. The Tribunal stated at [53]: … Unlike the matters the Tribunal considered in Hammoudi, the Applicant has failed to show through objective evidence that his real intent was to purchase and redevelop the property for retirement. I am not suggesting that the Applicant is in any way fabricating his evidence, but he must by way of objective evidence be able to satisfy me that special circumstances exist. He has failed to provide any financial information about the project, whether he would sell or rent his current home and how he intends to finance the new construction and if the OBP is not issued whether he would suffer financial hardship. No evidence was adduced from the Applicant's wife about their retirement plan. The Applicant did not provide a timeline as to when he would retire. In the absence of this type of evidence, a finding of special circumstances is far too remote.
The Tribunal held at [55] that "it is incumbent upon the Applicant to demonstrate that there are special circumstances to be successful in his application".
In Oslear, Senior Member Molony stated at [35]: In my opinion the question of whether special circumstance exist under s 32(1A) which allow the Commissioner to issue an owner builder permit, in a dual occupancy situation, is not confined or defined by the wording of the Minister's second reading speech. Rather, I agree that the series of factors referred to by the Tribunal in Hammoudi at [64] and McGufficke, including the mischief addressed by the amendment, and its purpose, are all factors to be taken into account in determining when special circumstances exist. That individual hardship is relevant is also clear from the second reading speech.
The Tribunal in Oslear was not satisfied that special circumstances existed in the matter before it and concluded at [39-41] as follows: 39. I do agree with the Commissioner's submission that a non-commercial purpose alone does not constitute special circumstances for the purposes of s 32(1A) of the HBA. Something more is required for special circumstances to exist. In this regard I agree with the previous decision of the Tribunal in Hammoudi and McGufficke. By the use of the words "special circumstances" in s 31(1A) Parliament has indicated that considerations of fairness and justice, as well as considerations of hardship, play a part in the Commissioner's exercise of the discretion as to whether or not special circumstances exist. So too do considerations of whether there are commercial factors which the applicant can leverage to his or her advantage, if granted an owner builder permit with respect to a dual occupancy. I note that the applicant submitted that the second reading speech confined such commercial gains, to "inappropriate commercial gains only." I do not accept that this should be read into the meaning of words 'special circumstances' in s 32(1A), thereby elevating the words of the second reading speech to statutory status. 40. The fact that an applicant intends to live in the principal dwelling of the dual occupancy does not constitute a special circumstance. To be eligible to be issued with an owner builder permit with respect to a dual occupancy s 81(2)(c) requires that an applicant must intend to live there. For special circumstances to exist, something beyond a non-commercial objective and continued residence must be shown to exist. What that something may be will depend on each case. It would be unwise to seek to anticipate such circumstances before they arise. In this case, beyond his insistence that no commercial purpose underlies the application, and that he will live in the new dwelling with his family, the applicant has not pointed to any other factor that amounts to a special circumstance. 41. With respect to whether or not there is a commercial purpose to be achieved if the applicant is granted an owner-builder permit, there is a dearth of evidence. The applicant has not put on any evidence, aside from the DA, which gives any indication of the size and uses of the land involved and its current value; the nature of the existing dwelling; its value and likely rent; the likely value of the new dwelling when completed (beyond is estimated cost); the rules relating to sub-division (beyond his statement that it is not currently subdividable, and concerning which there is no evidence); or of the proposed financial arrangements relating to the construction of the new home and the rental of the existing dwelling. In my view information of this kind is necessary to properly consider whether any and what commercial advantage is likely to arise from the issue of an owner builder permit of a dual occupancy. The applicant has said he will rent the existing dwelling, or sell it if he can, but has given no evidence of the likely rental. On the available evidence I cannot determine whether or not the there is a commercial benefit likely to flow from the granting of the application for an owner builder permit.

The Applicant's claim for special circumstances

In the Application, the box has been ticked to indicate that the Applicant is claiming special circumstances and a completed Additional Details Form 7 (Form 7) is attached. In response to question 4.1 in Form 7 stating "If you are constructing a new dual occupancy, do you intend to subdivide the dual occupancy and sell either or both of the dwellings?", no response has been given. In response to question 4.2, "If you do not intend to sell, who will be the occupants of both dwellings ?" the following response has been provided: THE CURRENT EXISTING DWELLING WILL BE OCCUPIED BY MYSELF. WE HAVE NO INTENTION TO SELL EITHER PROPERTY, THE SECOND DWELLING ON COMPLETION WILL BE OCCUPIED BY THREE ADULT CHILDREN. REJECTING THIS APPLICATION WILL CAUSE FAMILY HARDSHIP.
Also attached to the Application is a copy of the Applicant's general construction induction card (white card), a Statement of Attainment from Absolute Education (Statement of Attainment) and a copy of a rates notice for the Property. Pages 1 and 2 of a Notice of Deferred Commencement Consent Becoming Operative dated 22 June 2022 and pages 1 and 2 of a Notice of Determination of Development Application…"Deferred Commencement" dated 20 September 2021 (Notice of Determination) are also attached.
Included in the s 58 material (exhibit R1) is the following undated and unsigned letter (sic): The urgency and necessity for the second dwelling is for improving our family situation due to our current cramp living in a two-bedroom house with three of my adult children. Most importantly, keeping my family close by me including my elderly mother which will be moving in for medical care and safety purposes. Economical and affordability is another factor by administering and building our new house as I am unable to move into another home due to souring increase in value of new homes.
A further unsigned letter from the Applicant dated 15 October 2022 was submitted for the purpose of the internal review, and contains essentially the same information as previously provided but states that on completion of the new dwelling, it will be occupied by the Applicant's three adult children and the Applicant's mother.
The Applicant's affidavit contains the following in relation to her claim for special circumstances: 1. The Applicant enlisted Mr Ayoub's help during the planning stage due to his building knowledge, skills, network and contacts of people in the building industry. 2. The development application for the Property has no subdivision component nor is it her intention to ever subdivide the Property. 3. Upon obtaining the development approval, she and Mr Ayoub enquired with builders as to the costs of developing a second dwelling on the Property as per the approved plans and they were being quoted figures in the vicinity of $400,000. This figure was well above the Applicant's budget. 4. The Applicant has approximately $190,000 in savings which they have estimated will take her to the lock-up/enclosed stage. After lock-up, the plan is to finalise the project slowly as she has funds come through. Mr Ayoub has provided her with his intentions to assist her in funding the project, by way of a loan, if required, up to $75,000 which he has set aside for this project to keep construction flowing.
The Applicant then states that she decided to apply for an owner builder permit for a number of reasons, the first of which is that engaging a builder would cause her financial pressure and time constraints pressure. She then reiterated that the new dwelling will be used to house her elderly mother, who is 75, as well as the Applicant's three children; she does not intend to ever subdivide or sell the Property, and this is evident in the absence of a subdivision component in the development application. The Applicant states that Mr Ayoub has a network of tradespeople who are willing to assist in constructing the project. Attached to the Applicant's affidavit as Annexure A is a quotation from Amy Group Australia Pty Ltd (Amy Group) prepared by Jean Pierre Amyouni and dated 15 December 2022.
The Applicant gave evidence that she purchased the Property in or around May 1996. She initially lived in the existing two bedroom house at the Property with her husband and three children until her divorce 19 years previously. She has continued to reside there since that time with her three children who were aged 23, 21 and 19 at the date of the hearing. She said that they had had the same bedrooms since they were babies, and that the Applicant sleeps on a lounge. The Applicant stated in cross-examination that as at the date of the hearing, her daughter had moved out but that ultimately the Applicant would bring her back home. She also said that two of her children worked part-time and the other one was not working as she had lost her job. She stated that none of her children were able to contribute financially to the development.
Mr Ayoub's affidavit refers to a number of the matters relied upon by the Applicant to establish special circumstances and states that "If the Applicant is forced to engage a builder to develop the property, this will cause her severe financial hardship due to her current financial situation." Mr Ayoub did not provide any detail in relation to this statement.

Applicant's family situation

The Applicant stated in the Application that "most importantly" she wanted to keep her family close by to her, including her three adult children as well as her elderly mother who would be moving in for "medical, care and safety purposes." The Applicant's evidence was that her mother was aged 75 at the time of the hearing and in cross-examination stated that her mother was currently living by herself in Minto.
As indicated above, Mr Ayoub's affidavit refers to a number of the matters relied upon by the Applicant as special circumstances to justify the grant of an owner-builder permit. Whilst Mr Ayoub is the Applicant's cousin, the affidavit does little more than reiterate the claims made by the Applicant for special circumstances as outlined in the Application and subsequent proceedings, and does not provide any further detail of those matters. Mr Ayoub gave evidence in cross-examination that he had assisted the Applicant prepare her affidavit and that it was "me and her. Both of us prepared it."
Having regard to the above matters, and Mr Ayoub's stated role in the process to date , I find that the evidence given by Mr Ayoub in relation to the Applicant's claim for special circumstances cannot be accepted as objective evidence of those matters. In any event, as previously found, Mr Ayoub's evidence does not provide any further detail than that given by the Applicant.
No evidence was adduced from any of the Applicant's children or from the Applicant's mother. No objective evidence was provided in relation to the financial circumstances of the Applicant, the Applicant's children or that of her mother and there is no objective evidence as to their current or intended future living arrangements. No medical evidence was adduced in relation to the Applicant's mother or in relation to the medical, care or safety reasons that might require her to move out of her current home or to the potential time frame in which such a move might be required to take place. In cross-examination, the Applicant conceded that there was no medical certificate in the Application or before the Tribunal but stated that she could provide it if needed.

Financial arrangements

As referred to previously, the Applicant says that after obtaining the development approval, she and Mr Ayoub enquired with builders as to the cost of building the second dwelling on the Property as per the approved plans and they were being quoted in the vicinity of $400,000. In cross-examination, the Applicant accepted that there was only one quotation before the Tribunal and that the others were verbal quotes. She said they had enquired about costs and did not think it necessary to get written quotations but could get them, if needed.
Accordingly, the only quotation for the construction costs before the Tribunal is that from Amy Group. The quotation is dated 15 December 2022 and includes reference to eight different stages, with Stage One being "DA Approval" and Stage Two being "CC Approval". These stages are shown as completed and indicate that a total of $39,120 was paid for these stages between 4 December 2020 and 18 July 2022, including amounts for "Architectural Plans - concept Landscape Plan", "Fairfield Council- Planning DA Fee…& Development Contributions", "Alma Building -Private Certifier" and "PCA Fees". The note under the heading "Stage Three - Construction" states that "Stage 1 & 2 must be approved prior (sic) commencing building".
The remaining stages in the quotation relate to construction and total $320,000. A note on the last page states (sic) "Our Fees & Charges to Complete this Project is 25% of $320,000 being the Cost Price of Building = $80,000". The total cost of the "Project" is stated to be $400,000 and does not include the costs paid in relation to the first two stages. A further note on the last page states (sic) "All costs is depending on todays 15/12/2022 prices Single storey dwelling, Brick veneer & 5 bedrooms & Double Garage". No further evidence was provided in relation to the quotation.
From the quotation it is apparent that Amy Group was involved in the project from some time prior to 28 October 2020, at which date the "Surveyor -Aspect Development" is shown as "Completed" at a cost of $1,408 and Amy Group continued to be involved in obtaining "DA Approval" and "CC Approval" for what appears to be a five bedroom, single storey dwelling with a double garage. I find that the ongoing involvement of Amy Group from at least October 2020, is not consistent with the evidence from the Applicant that she and Mr Ayoub only enquired with builders as to the costs for the second dwelling after obtaining the development approval. The reference to a five bedroom dwelling in the Amy Group quotation is also inconsistent with the evidence of the Applicant that the new dwelling would have four bedrooms. In the absence of approved plans, it is not possible to determine the size or layout of the new dwelling.
The Applicant stated that the amount of $400,000 is well above her budget. She says in her affidavit that she has approximately $190,000 in savings which "we have estimated can take me to the lock-up/enclosed stage" and that after lock-up/enclosed stage, the plan is to finalise the project slowly as she has funds come through.
The Applicant was asked in cross-examination about the potential loan of up to $75,000 from Mr Ayoub and said that when she gets the loan, she will pay Mr Ayoub back when she can and that "we decided on $300 per week". During his cross-examination, Mr Ayoub said that he will only provide the Applicant with the loan once an owner-builder permit is given. When asked if he had discussed repayment of the loan with the Applicant, he said that he had not. It is clear from this evidence that there are inconsistencies between the Applicant and Mr Ayoub on this issue.
The Applicant stated that she had enlisted Mr Ayoub's help, in part, because of "his network and contacts of people in the building industry". Whilst the Applicant gave evidence that she understood the requirements of being an owner-builder and that if granted an owner-builder permit she intended to use "licenced people", she did not give, or adduce, any evidence as to the process that she planned to undertake in relation to the new dwelling; who would be carrying out the partial demolition of the existing house or the construction of the new dwelling; or the estimated cost of carrying out such works as an owner-builder. No evidence was adduced in relation to any potential difference between the costs of engaging a builder and using "licenced people", as the Applicant said that she intended to do.
Other than the Applicant's evidence in relation to her approximate savings, there is no evidence in relation to her financial capacity; no evidence as to her current or future income; any liabilities that she may have or to any funds that may come through to the Applicant in the future; the source of such funds, the timing of them or the quantum. No objective evidence was provided in relation to the Applicant's finances or to support the submission that the financial capacity of the Applicant means that engaging a builder will cause financial hardship.

Commercial purposes

The Applicant gave evidence that she has no intention of subdividing or selling the Property, and this is evident in the absence of a subdivision component in the development application. The Respondent submitted that there is no objective evidence to support these assertions.
In cross-examination, the Applicant was asked whether it may have been more economical to extend her existing two bedroom home rather than to build a new dwelling. She replied that she looked into that before she looked into building but that everyone that she spoke to said that it was not financially worth fixing. The Applicant did not adduce any objective evidence as to the condition of the existing dwelling on the Property; its current value or likely rent; the cost of purchasing a new property; or the cost of renovating or extending the existing dwelling. No evidence was adduced as to the future value or likely rent for the two dwellings on the Property once the work was completed, other than the quotation from Amy Group relating to building costs for the new dwelling.
The Applicant's evidence was that she is building for herself and that she does not intend to ever sell or subdivide the Property. It was put to the Applicant in cross-examination that Fairfield Council allowed for subdivision of the Property and the Applicant responded that it may be the case but that it was not something that she had looked into.
It was submitted by the Respondent that Clause 4.1B(2) of the Fairfield Local Environmental Plan 2013 (LEP) allows for the subdivision of land in Zone R2 Low Density Residential and that the provision grants an owner of a dual occupancy on the land the ability to subdivide the property. Clause 4.1B(2) of the LEP relevantly provides as follows: (2) Despite clauses 4.1 and 4.1A, development consent may be granted for the subdivision of land in Zone R2 Low Density Residential into lots of less than the minimum lot size shown on the Lot Size Map in relation to that land if - (a) there is an existing dual occupancy on the land that was lawfully erected under an environmental planning instrument, and (b) the lot size of each resulting lot will be at least 300 square metres, and (c) there will be one dwelling on each resulting lot.
It was submitted by the Respondent that no plans or drawings relating to the Property were before the Tribunal. Attached to the Application is a document headed "Notice of Deferred Commencement Consent Becoming Operative" for the Property dated 22 June 2022. It consists of a page on Fairfield City Council letterhead together with a further page marked "2". The document indicates that the Development Consent for the Property is operative as of 22 June 2022 "in accordance with the approved plan (a copy of which is attached)". No further pages or documents, including the approved plan, are attached to the Application before the Tribunal.
Also attached to the Application is a "Notice of Determination of Development Application" for the Property with a "Deferred Commencement" (Notice of Determination). The Notice of Determination is dated 20 September 2021. It consists of a first page on Fairfield City Council letterhead together with a further page marked "2". There is reference to various plans in the two page document but no further pages or documents, including plans, are attached to the Application before the Tribunal.
In accordance with the timetable set by Senior Member Ransome on 20 December 2022, the Respondent filed the s 58 documents (exhibit R1), including the Application and attachments, on 24 January 2023. The affidavit of Mr Ayoub (exhibit A2) was subsequently filed for the Applicant on 15 February 2023. It was not in dispute that copies of all documents filed in the proceedings were served on the other party.
Mr Ayoub states in his affidavit that the development application does not allow for subdivision nor does the Applicant wish to subdivide the property. The affidavit does not attach copies of any approvals, plans or drawings relating to the Property.
The Respondent filed written submissions on 28 February 2023. The Respondent submitted that there was no objective evidence to support Mr Ayoub's assertion that the development application does not allow for subdivision nor does the Applicant wish to subdivide the property. It was submitted that the "copy of the Notice of Deferred Commencement Consent Becoming Operative attached to the [Application] is incomplete." The footnote to the submissions refers to pages 14 and 15 in the section 58 documents. This is the two page document dated 22 June 2022 referred to above and, as referred to previously, does not include copies of any plans.
The Applicant's affidavit was filed on 27 March 2023 and specifically states that the purpose of the Affidavit "is to clarify points made in the Respondents (sic) Submissions dated 28 February 2023". The Applicant says: In relation to paragraph 4.10 of the Respondents (sic) Submissions, we reject the assertion that the Notice of Deferred Commencement Consent Becoming Operative is incomplete. That document in its entirety is 3 pages. Annexed hereto and marked as Annexure "B" are copies of the Notice of Determination of Development Application 20 September 2023 and the Notice of Deferred Commencement Consent Becoming Operative dated 22 June 2022.
Annexure "B" to the Applicant's affidavit contains two documents. The first is headed "Notice of Determination of Section 4.55(2) "Deferred Commencement" Modification" from Liam Hawke of Fairfield City Council to Mr A Yousef and is dated 13 May 2022. The document consists of four pages. The document indicates that the application to modify the subject application has been approved. Reference is made to various plans within the document, but no plans are contained in the Annexure
The second document in Annexure "B" is a 16 page document headed "Notice of Determination of Development Application…Deferred Commencement" from Fairfield City Council to Liam Hawke to Mr A Yousef and is dated 20 September 2021. The first two pages of the document are identical to the two page Notice of Determination that was included in the Application. The document in Annexure "B" of the Applicant's affidavit includes a further 14 pages. The document refers to a number of plans, together with amendments in red to be incorporated into the development, but it does not include copies of any plans.
There was no further evidence in relation to the Applicant's reference to Annexure B containing a copy of the "Notice of Determination Of Development Application 20 September 2023", to the "Notice of Deferred Commencement Consent Becoming Operative dated 22 June 2022" or to the latter document in its entirety being three pages.
Given that the date of the hearing was 20 April 2023, it appears that the Applicant's reference in her affidavit to the date of 20 September 2023 was an error and that she intended to refer to the 16 page document referred to above and headed "Notice of Determination of Development Application…Deferred Consent" dated 20 September 2021. No copy of a "Notice of Deferred Commencement Consent Becoming Operative" dated 22 June 2022 was attached to the Applicant's affidavit and as referred to above, the other document annexed to the affidavit is the "Notice of Determination of Section 4.55(2) "Deferred Commencement" Modification" dated 13 May 2022, consisting of four pages. In any event, neither of the documents annexed to the Applicant's affidavit included copies of any plans or drawings.
Accordingly, the only copy of the "Notice of Deferred Commencement Consent Becoming Operative" dated 22 June 2022 is that attached to the Application (part exhibit R1), and this consists of two pages only and does not include any plans or drawings.
The Applicant was insistent in her evidence that the approved plans and drawings for the Property had been submitted to Service NSW and that she had personally handed them over. She said that she was not sure why they were not before the Tribunal or why the relevant box in the Checklist in the Application relating to the provision of copies of approved plans had not been ticked . She conceded however that whilst she provided the plans to Service NSW, she had later picked them up.
In cross-examination, the Applicant acknowledged that she had received the s 58 documents and had looked through them. She said that she had "probably" looked at the Notice of Deferred Commencement Consent becoming Operative dated 22 June 2022. Ms Robosa put to the Applicant that it was clear that the documents did not include plans and the Applicant responded, "Now yes, but not at the time." The Applicant agreed that she had read the Respondent's submissions dated 28 February 2023 and that her affidavit specifically referred to them and that she had rejected the assertion that the Notice of Deferred Commencement Consent Becoming Operative was incomplete and had stated the document in its entirety is 3 pages. She agreed that the plans formed part of this document but were not included as part of her affidavit.
She later said that she did not know why the plans were not included as it was her understanding that the plans had been given to Service NSW. She went on to say that she was not a legal person and that it was her mistake and an oversight on her part. She also indicated that if the Respondent wanted them, a subpoena for the documents could have been issued.
In cross-examination, Mr Ayoub agreed that he had received the s 58 documents and had reviewed them. He also agreed that he had received the Respondent's submissions dated 28 February 2023 and had read them, including the reference to the copy of the Notice of Deferred Commencement Consent Becoming Operative attached to the Application being incomplete.
Mr Ayoub was taken to the part of the Applicant's affidavit responding to the Respondent's submissions and the annexures to the affidavit. Ms Robosa asked him if he agreed that the copies of the documents before the Tribunal did not include any drawings or plans. Mr Ayoub said that he did not see the need for them but that he had them and could provide them if needed. At the conclusion of Mr Ayoub's evidence, the Applicant was provided with an opportunity to ask Mr Ayoub further questions or to clarify any issues and declined to do so.
Having regard to the evidence before me, I am satisfied that no copies of any approved plans, or indeed any plans, relating to the Property or to the approved building work are before the Tribunal. I accept that plans were provided to Service NSW and were later picked up by the Applicant and that copies were not kept by Service NSW. Accordingly, it is not possible to ascertain what those plans were or what they contained.
I am satisfied that as a consequence of the Respondent's submissions filed on 28 February 2023, the Applicant was on notice of the contention that the Notice of Deferred Commencement Consent Becoming Operative attached to the Application was incomplete and that the timetable set down by Senior Member Ransome allowed the Applicant to put on further evidence relating to this document. An affidavit by the Applicant was subsequently filed in which she rejected the assertion that the document was incomplete. The Applicant was self-represented at the hearing and was afforded an opportunity during closing submissions at the hearing to make an application to file further evidence in the matter. The Applicant declined to do so, on the basis that she wanted the matter to be finalised.
As a consequence, there is no evidence before the Tribunal that gives an indication of the size or use of the lot relating to the Applicant's Property and no plan or other evidence showing the placement of the existing dwelling and the approved new dwelling on the Property. There was no evidence as to the current or future value of the Property or any evidence by the Applicant that addressed the Respondent's submission that the Property could potentially be subdivided, other than to say there is no intention to do so.

Inconsistencies in the evidence

In addition to the inconsistencies previously referred to, there were further inconsistencies in the evidence given by the Applicant and Mr Ayoub in relation to the training undertaken by the Applicant and relied upon by her in the Application. During cross-examination of the Applicant about the Statement of Attainment attached to her Application, the Applicant said that she did the course online on a computer at her home. She said that she did not get assistance to answer the questions and when asked if Mr Ayoub assisted her, she said "No."
Mr Ayoub was cross-examined in relation to the Applicant's Statement of Attainment, and he gave evidence that the Applicant completed the course in 2021. He said that the Applicant completed the course at his place on the computer in a little office that had been set up. He said that she did so as she does not have a computer at her home. He later clarified that whilst the Applicant does not have a computer, she does have a laptop. His evidence was that when the Applicant asked a question, he assisted her. In submissions, the Applicant submitted that she had completed the course herself.
In relation to the Applicant's white card, the Applicant's evidence was that she had gone to a course somewhere in Parramatta and completed it in person. She made no reference to Mr Ayoub being at the course. Mr Ayoub's evidence was that the course was required to be conducted in person and that he had done the course with the Applicant. He did not provide any reasons as to why he had done the course.

Consideration

I agree with the statement of Senior Member Molony in Oslear at [36], that "each case will have to be considered individually with the applicant bearing the statutory burden of satisfying the Commissioner that special circumstances exist. I am inclined to the view that this will usually require the applicant to adduce evidence of the financial arrangements surrounding the construction and subdivision, as well as personal and family circumstances."
The Applicant has given evidence that she intends to live in the existing dwelling of the proposed dual occupancy but this does not of itself constitute a special circumstance as it is a requirement of s 31(2)(c) of the HBA. I accept that the Applicant has a genuine desire to keep her mother and her three adult children close by to her, but I am not satisfied that this of itself is sufficient to constitute special circumstances.
It is incumbent upon the Applicant to demonstrate that there are special circumstances to be successful in her application. In the current matter, the Applicant has failed to adduce any objective evidence, including medical evidence, in relation to her family circumstances or any objective evidence in relation to her financial circumstances. Further, there is no objective evidence of either the family hardship or the financial hardship that the Applicant submits would ensue if an owner-builder permit was not granted in relation to the construction of the new dwelling on the Property.
As was the case in Oslear, I also find that there is a dearth of evidence in this matter as to whether or not there is a commercial purpose to be achieved if the Applicant is granted an owner-builder permit and I am unable to determine whether or not there is a commercial benefit likely to flow from the granting of the application for an owner builder permit.
I have previously found that the evidence of the Applicant and Mr Ayoub is inconsistent on a number of points. In considering the issue of special circumstances, these inconsistencies serve to highlight the lack of objective evidence adduced by the Applicant in this matter. Accordingly, I am not satisfied that special circumstances exist under s 32(1A) of the HBA that justify the issue of an owner-builder permit to the Applicant and accordingly, such a permit must not be issued.
Having made this finding, it is not necessary to consider what, if any, effect the Applicant's health, the circumstances in which she obtained her Statement of Attainment and white card, or Mr Ayoub's extensive involvement have on the Application.

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: 07 September 2023

Role of the Tribunal

Section 83B(1) of the HBA confers jurisdiction on the Tribunal for administrative review of the Respondent's decision pursuant to s 9 of the Administrative Decisions Review Act 1997 (the ADR Act). Section 63 of the ADR Act provides that in determining an application for review, the tribunal is to make the correct and preferable decision having regard to the material then before it, and any applicable written or unwritten law. The tribunal makes its own decision in place of that of the Respondent and there is no presumption that the decision of the Respondent is correct: McDonald v Director-General of Social Security (1984) 1 FCR 354 at 357. In doing so it may exercise all of the functions conferred or imposed by any relevant enactment. There is no onus of proof: Nakad v Commissioner of Police, New South Wales Police Force [2014] NSWCATAP10 [28-30], [34]. In an application for review the tribunal is not restricted to consideration of the material that was before the decision maker, but may have regard to any relevant material before it at the time of the review: Shi v Migration Agents Registration Authority [2008] HCA 31.
For the purpose of this review the Tribunal stands in the shoes of the Respondent and has the same powers.

At a glance

Court

Decision date

Source

Judgment (10 paragraphs)

Parties

Legislation Cited (2)

Cases Cited (9)

Cited By (2)