Lane Cove Council v Ross

Land and Environment Court (NSW)|2012-08-13|Before: Pepper J

Mr Raymond Ross Carries Out Unlawful Building Works 1The background to this judgment is contained in Lane Cove Council v Ross [2012] NSWLEC 153, Lane Cove Council v Ross (No 2) [2012] NSWLEC 160 and Lane Cove Council v Ross (No 3) [2012] NSWLEC 171. 2In short, the respondent, Mr Raymond Ross, obtained development consent for DA 352/07 ("the consent") from the applicant, Lane Cove Council ("the council"), for alterations and additions to an existing dwelling house at 8 Bayview Street, Northwood, New South Wales ("the premises"). 3Between late 2008 and 2009 Mr Ross commenced carrying out the development pursuant to the consent. But during construction Mr Ross carried out unauthorised work which comprised numerous changes, including the: (a) excavation of a large subfloor area at the rear of the premises to create a double garage that resulted in a building that is three stories in height contrary to the applicable zoning (the land upon which the premises is located is zoned R2 (Low Density Residential) pursuant to the Lane Cove Local Environmental Plan 2009 ("the LEP"), which stipulates that dwellings must be no more than two stories high); (b) substantial excavation of the side and rear yards with a large portion of the rear yard covered in concrete; (c) construction of an unauthorised rear first floor level balcony slab measuring 1.5m in width, accessible by door openings created instead of approved bedroom windows; (d) extension of the building at its second level towards the northern and western boundaries; (e) deletion of planter boxes; (f) deletion of windows and the reduction of the first floor living room windowsill heights; (g) deletion of internal access stairs; (h) relocation of external rear stairs to the rear courtyard; (i) conversion of an existing pantry into a new bathroom; (j) deletion of the side door entrance and the conversion into a new external concrete block lift wall; and (k) construction of a 2.5m high concrete block wall at the rear of the site. 4The carrying out of these unauthorised building works clearly constitutes development in breach of s 76A(1) of the Environmental Planning and Assessment Act 1979 ("the EPAA"). 5However, in early July 2011 Mr Ross lodged an application under s 96 of the EPAA to modify the consent and thereby seek retrospective approval of the unauthorised works described above. On 16 July 2012, the council rejected this application on the basis that it was incomplete. 6On 10 August 2012, that is to say, one working day before the final hearing of the summons on 13 August 2012, Mr Ross lodged a subsequent modification application pursuant to s 96 of the EPAA. Because of the late lodgement of this application, the council did not have the opportunity of assessing it prior to the commencement of the final hearing of the summons.

Mr Ross Admits Breach of the Terms of the Consent 7Mr Ross admitted that the work carried out by him, the subject of these proceedings, is contrary to the terms of the consent. He did so in his own affidavit (sworn 12 July 2012 and read in the proceedings) and during the interlocutory hearing before the Court on 12 July 2012 (Lane Cove Council v Ross (No 2)). 8The reasons Mr Ross gave for breaching the consent were: first, the works were necessary in order to complete the construction in an efficacious manner; second, the changes were contained within the approved building footprint and height envelope; third, the works would ordinarily have been approved by the council; and fourth, the council was, in any event, aware of the works. Mr Ross described the breaches as "technical".

Adverse Impacts of the Unlawful Development 9According to the evidence of the council contained in the affidavits of Mr Adrian Moore, the Senior Building Surveyor at the council (sworn 28 June, 6 July, 12 July, and 16 July 2012), the adverse amenity impacts of the unauthorised works include the following: in relation to the residential dwelling to the south of the premises, an impact on the privacy of that residence, both visual and aural, as a result of the unauthorised balcony; and, again in relation to the residential dwelling to the south of the premises, an impact on the amenity of that dwelling occasioned by the visual bulk and overshadowing of the construction caused by the extension of the southern wall. 10In addition, the unlawful construction is contrary to the applicable environmental planning instruments insofar as: (a) the excavation to create the rear garage has resulted in a building that reaches three stories in height, in breach of cl 1.7.1 of the Lane Cove Development Control Plan 2010; (b) the estimated floor space ratio is likely to be in breach of the LEP; (c) there is a lack of open space in the rear yard and a landscape plan will therefore need to be submitted for assessment; (d) a large portion of the yard has been covered in concrete and it is anticipated that further hard surfaces will be constructed, again resulting in a lack of landscaped open space; (e) the top level balcony is located too close to adjoining neighbours; (f) the deletion of the planter boxes has hardened the appearance of the dwelling and caused a considerable reduction in privacy set backs; and (g) the building was approved to be finished in face brick but this is no longer possible and a new Schedule of External Finishes will be required for submission to, and assessment by, the council. 11The council submitted that the full extent and impact of the unauthorised works would necessitate further assessment.

Mr Ross Files a Notice of Motion to Vacate the Hearing and Stay the Proceedings 12On 9 August 2012 Mr Ross sought orders before the duty judge by way of notice of motion that the proceedings be stayed pending the lodgement of a s 96 modification application by him and its determination by the council, and that the final hearing of the summons be vacated. 13Mr Ross sought to rely on two affidavits in support of the notice of motion (affirmed by him on 8 and 9 August 2012). The affidavits were served on the council at 11.30am on the same day that he filed the notice of motion. Because of the obvious prejudice to the council occasioned by the late service of the affidavits, and moreover, the late notification of the notice of motion, the council made an application for the notice of motion to be stood over to the first day of the hearing. The Court acceded to this request. 14When the matter was heard on 13 August 2012, Mr Ross sought to rely upon an affidavit dated 29 July 2012, which had only been filed in the Court earlier that morning and had not been served in its entirety upon the council. The affidavit was 11 pages long and contained 107 pages of annexures. Understandably, the council opposed any reliance by Mr Ross on the affidavit on the basis that it had not had time to consider its contents. The Court had considerable sympathy with the council's position, notwithstanding that Mr Ross is an unrepresented litigant. 15After a brief adjournment, it became apparent that there was in fact little dispute in respect of prayers for relief 1, 2 and 3 in the summons and that only the relief sought in prayers, 4, 5 and 6 were opposed by Mr Ross. Mr Ross therefore consented to the making of orders in the form sought in prayers for relief 1, 2 and 3 and did not ultimately read his affidavit dated 29 July 2012. 16The council agreed to adjourn the hearing of the remainder of the summons until such time as it had the opportunity to consider Mr Ross' affidavit dated 29 July 2012, and, more importantly, to consider and assess the s 96 modification application lodged by Mr Ross on 10 August 2012. As the council informed the Court, it is possible that upon assessment of the s 96 modification application, the need to pursue the remainder of the relief in the summons may fall away. 17Having regard to the overriding purpose contained in s 56 of the Civil Procedure Act 2005, it is "just, quick and cheap" to defer any further consideration of prayers 4, 5, and 6 for relief in the summons until such time as the council has had the opportunity of assessing the latest s 96 modification application lodged with it. Accordingly, the proposed cause of conduct suggested by the parties was endorsed by the Court.

The Utility of Granting the Declaratory Relief 18As outlined in the previous decisions in this matter, and on the basis of the evidence relied upon by the council referred to in those earlier judgments and in light of Mr Ross' own admissions, the Court is of the opinion that it is appropriate to make the declarations sought. 19To do so is to denounce the deliberate conduct of Mr Ross in breaching the terms of the consent. It is also hoped that the making of the declarations within this judgment will act as a deterrent to others who may be minded to engage in unlawful building works (Hill Top Residents Action Group Inc v Minister Administering the Sporting Venues Authorities Act 2008 (No 4) [2011] NSWLEC 6 at [20]). 20The undertaking of construction works other than in strict compliance with the terms of any approval granted by a council to engage in those works has the effect of undermining the planning regime in this State. This is particularly so when these actions are intentional (Hill Top at [16]). 21In the present circumstances: (a) the breaches are not, contrary to the submissions of Mr Ross, purely technical; (b) there is no beneficial effect on the locality occasioned by the breaches; and (c) the breaches are plainly contrary to the legislative purpose enshrined in the EPAA of ensuring an integrated and coordinated planing system in New South Wales (Warringah Shire Council v Sedevic (1987) 10 NSWLR 335 at 339-341. See also Simpson v Wakool Shire Council [2012] NSWLEC 163 at [83]-[85], [91] and [102]-[103]). 22Finally, it must be noted that, although Mr Ross is not the registered owner of the land upon which the premises are located because, according to his evidence, he purchased the premises in 2007 and transfer of the title is still pending, he was the applicant to the consent and holds the owner/builder licence for the development. On this basis, Mr Ross' controlling interest in the conduct of the development may be reasonably inferred (s 697 of the Local Government Act 1993 and see Auburn City Council v Hussein Hussein [2010] NSWLEC 77 at [21]).

Conclusion and Orders 23The Court, in conformity with the reasons above: 1.declares that alterations and additions to the dwelling house at 8 Bayview Street, Northwood ("the premises") have been carried out not in accordance with the Development Consent DA325/07 of the Lane Cove Council issued on 2 April 2008; 2.declares that the alterations and additions to the premises have been carried out in breach of s 76A(1)(a) of the Environmental Planning and Assessment Act 1979 ("the EPA Act"); 3.orders that the respondent is restrained from carrying out any further development of the premises, in the nature of alterations and additions or other excavation, construction or building works, in breach of s 76A(1) of the EPA Act; 4.adjourns the final hearing (part heard) of prayers 4, 5, and 6 for relief in the summons filed 26 June 2012; 5.reserves the costs of today; 6.stands the proceedings over to 2 November 2012 for further directions at 9.15am before Pepper J; and 7. grants liberty to restore to the parties on 3 business days' notice

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: 15 August 2012

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