Lane Cove Council v Ross

Land and Environment Court (NSW)|2013-05-29|Before: Pepper J

Mr Ross Carries Out Unlawful Building Works 1The respondent, Mr Raymond Ross, obtained development consent for DA 352/07 on 2 April 2008 ("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 property"). 2Between late 2008 and 2009 Mr Ross commenced carrying out the development pursuant to the consent. However, during construction, Mr Ross carried out unauthorised work comprising numerous changes to the structure that had been approved by the council, as reflected in the consent. 3The unlawful works were detailed in an affidavit of Mr Adrian Moore sworn 28 June 2012. Mr Moore is employed by the council as a Senior Building Surveyor. 4Following complaints received by the council, Mr Moore went to the premises on 10 May 2012. He observed that building works had been carried out other than in accordance with the development consent and approved plans. The unauthorised works are described by him in his affidavit as follows: + excavation of a large subfloor area with a new concrete slab poured for the provision of an unauthorised double garage combined with a high level brick window and door openings facing the southern side boundary. The unauthorised double garage is situated at the rear of the existing building and is accessed along the northern side thereon; + a vehicular passageway along the northern side of the dwelling has been created to provide for vehicles to access the unauthorised double garage referred to above; + an unauthorised rear second floor level balcony slab has been built measuring 1.5m wide spanning across the entire width of the rear of wall of the building. Balcony access has been created thereto with new brick door openings built in lieu of approved bedroom windows; + a concrete block lift core shaft with access internally from an approved double garage on the street front has been constructed. The new lift shaft is externally located on the northern side of the building; + the two windows indicated as windows number 5 and 6 in the drawings have been deleted from the northern side wall of the front garage with one window opening constructed; + the first floor kitchen window number 12 on the southern side of the building has been deleted; + an internal access staircase adjoining the first floor level kitchen has been removed and an existing pantry area has been converted into a new bathroom; + the approved first floor side door entrance has been deleted and changed to a new external concrete block lift wall; + external wall concrete balcony slab projections have been poured wrapping round the ground, first and second floor levels on the north, west and part of the south western sides of the building; + the external rear stairs to the rear courtyard have been deleted; + the windowsill height to the first floor lounge room window number 7 has been reduced; + the windowsill height to the first floor family rooms' windows numbers 15 and 16 has been reduced; + a new concrete stair has been built adjoining the rear retaining wall to access the rear yard; and + concrete has been poured so as to cover almost the entire rear yard area. 5Mr Moore deposed to a number of concerns arising out of the unlawful works, which included the following: + the excavation and creation of the additional double garage at the rear of the premises has created a building which is three storeys in height at that point. This is in breach of clause 1.7.1 of the Lane Cove DCP 2010; + the dwelling as approved had an FSR of 0.49:1 which complied with Council's control as set out in the Lane Cove Environmental Plan 2009 of 0.5:1. The building as built in my estimate would exceed the FSR control and is likely to be in the vicinity of 0.6:1. + this is of further concern when considered in relation to the lack of unbuilt upon open space area in the rear yard. A landscape plan needs to be submitted to Council for assessment; + the side and rear yards have been substantially excavated and thereafter a large portion of the rear yard has been covered in concrete. It is anticipated that further hard surfaces will be constructed to permit a driveway from the unauthorised double garages at the rear for access and egress thereto. There is virtually no area left to the rear or southern side of the dwelling for landscaped open space; + the unauthorised balcony at the north eastern top level of the dwelling is located close to the adjoining neighbours to the south and those neighbours are objecting thereto; + the building has been substantially extended at its second level towards the northern and western boundaries. The approved plans had anticipated that those areas would be occupied by planter boxes which would soften the appearance of the dwelling and ensure suitable set backs from the side boundaries for privacy reasons but those planter boxes will either be considerably reduced in size or non existent; and + the dwelling as approved was intended to be finished in face brick. Having regard to the numerous unauthorised works that have taken place thereon it is now apparent that that will not be possible. A schedule of external finishes needs to be submitted to Council and approved. 6Mr Moore returned to the property on 22 June 2012 and observed that further irregular building works had taken place, namely: (a) the external brick walls on the second level of the dwelling had continued to be built other than in accordance with the approved drawings and plans; and (b) a 2.5m high concrete block wall had been constructed at the rear of the property adjoining a natural rock outcrop. 7It appeared to Mr Moore that further brickwork was about to be laid on the second level slab, and if it was, this would not be in accordance with the drawings and plans approved pursuant to the consent. This gave rise to a number of amenity concerns in relation to the residential dwelling immediately to the south because: (a) any further brickwork installed along the eastern wall would entrench the unauthorised balcony access points already created by reason of the earlier observed unlawful building works; and (b) it would entrench the unauthorised brickwork that had been carried out on the southern external wall and was likely to extend the length of that wall by approximately 3m. 8According to Mr Moore, the unauthorised brickwork would create issues of privacy, both visual and aural, in relation to the unauthorised balcony and result in issues of amenity caused by the visual bulk and overshadowing occasioned by the extension of the southern external wall. 9Photos of the unlawful works were attached to Mr Moore's affidavit. In addition, Mr Moore marked up a copy of the approved plans and drawings to demonstrate the nature, location and extent of the unapproved building works. 10At that time council's records showed the owner of the property to be Mr William Hopes. This was consistent with a title search indicating that, as at 11 May 2012, Mr William Hopes was the registered owner of the property. However, in a conversation with Mr Moore, Mr Ross claimed to be the owner of the premises and was carrying out the building works pursuant to an owner/builder's permit issued in his name. 11A more recent title search dated 16 May 2013 now indicates that Ms Sarab Chami is the current registered owner of the property. The issue of who owns the property and its relevance to these proceedings is discussed further below.

Mr Ross Concedes He Has Engaged in Unlawful Construction 12Originally, the summons filed in this matter was set down for final hearing on 13 August 2012. In early July 2012 Mr Ross lodged an application under s 96 of the Environmental Planning and Assessment Act 1979 ("the EPAA") to modify the consent and thereby seek retrospective approval for the unauthorised works. On 16 July 2012 the council rejected this application on the basis that it was incomplete. 13On 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 the application, the council did not have the opportunity of assessing it prior to the commencement of the final hearing of the summons. Accordingly, the hearing proceeded on 13 August 2012. 14At the hearing on 13 August 2012, Mr Ross relied on an affidavit sworn by him on 12 July 2012, wherein he acknowledged that some of the works had resulted in "changes to the original DA", but that "all significant changes" had been communicated to the council, were three years old, and had been "required from an engineering standpoint". 15The affidavit was read by Mr Ross in support of an application made by him to stay the proceedings until such time as the council determined the second modification application lodged. 16Mr Ross went on to state in his affidavit sworn 12 July 2012 the following (emphasis in original): 6. All other changes barring the extension of rear awning and including the lift access are internal to the building and do not affect the amenity of neighbours and do not normally required council approval if carried out after the DA process. 7. All changes are fully compliant with Councils DCP and Building Guidelines and would have been approved in the DA had these changes been foreseen and incorporated in the original drawings. 8. All changes are contained within the approved building footprint and height envelope and would ordinarily be approved by Council under existing guidelines. 17At the hearing on 13 August 2012, the 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 and were not contrary to the Lane Cove Development Control Plan 2010 ("the DCP"); 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". 18Based on the material contained in his affidavit, and admissions made by Mr Ross during the course of argument that he had carried out building works contrary to the terms of the consent, the Court had no hesitation in finding that Mr Ross had breached s 76A(1)(a) of the EPAA. The Court therefore granted the council the following relief (Lane Cove Council v Ross (No 4) [2012] NSWLEC 191 at [23]): 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 19Ultimately, because of Mr Ross' admitted contraventions of the consent, and thus the EPAA, there was in fact very little dispute in respect of prayers for relief 1, 2 and 3 in the summons and it was only the relief sought in prayers 4, 5 and 6 that was opposed by Mr Ross. 20Accordingly, Mr Ross consented to the making of the orders at [23] of Ross (No 4) so as to permit the adjournment of the hearing of the remainder of the summons until such time as the council had the opportunity to consider and assess the 10 August 2012 s 96 modification application. The council agreed to this course on the basis that upon assessment of the s 96 modification application any need to pursue the remainder of the relief in the summons, save as to costs, may be rendered otiose.

Procedural History 21The s 96 modification application was referred to the council's Independent Hearing and Assessment Panel for determination. The Panel refused the application on 2 October 2012. 22Mr Ross appealed this refusal pursuant to s 96(2) of the EPAA. The Class 1 appeal was heard before Dixon C on 18 and 19 December 2012 (Ross v Lane Cove Council [2012] NSWLEC 1364). 23The only real issue in the proceedings before the Commissioner, following an amendment of the plans pursuant to conciliation, was the removal of a balcony over an excavated garage leading to a new living room. The threshold legal issue before Dixon C was whether the development was substantially the same as that originally approved if the modifications were permitted. The Commissioner accepted that it was substantially the same as that originally approved. Accordingly, she went on to determine the merits of the appeal. On the evidence before her, she was inclined to permit the balcony to remain. This was, however, dependent upon the awnings that added bulk to the development being deleted as was anticipated during the course of the hearing before her. Mr Ross had agreed to the removal of those awnings. 24At the conclusion of the hearing before Dixon C it became apparent that Mr Ross was not the owner of the property. It was agreed that evidence of the registration of a transfer would crystallise his ownership. Mr Ross had indicated in an affidavit sworn on 17 December 2012 in those proceedings, that he had a transfer of sale in his favour which had been stamped and that he was in a position to register the transfer within a period of six weeks. The Commissioner therefore adjourned the hearing for a period of six weeks to allow the preparation of amended drawings and plans and the requisite certification and registration of the transfer. 25However, these matters did not eventuate because when the s 96 modification application resumed before the Court on 29 January 2013, Mr Ross produced plans that were inconsistent with the amendments required by the Court. They were not accepted. Mr Ross discontinued the appeal. No fresh s 96 application has been made by him, or by the new owner of the property. 26On 16 January 2013 Ms Hadia Edilbi lodged a building certificate application with the council in Mr Ross' name. Ms Edilbi was subsequently described by Mr Ross to be, at that stage, "one of the new owners and owner builder". 27The council responded to the application on 30 January 2013, requesting as-built plans, surveyor certification, proof of ownership and engineering certification as to structural soundness with respect to the development. None were produced. 28On 1 February 2013, Mr Ross attempted to set aside or amend the orders made by consent on 13 August 2012 in Ross (No 4), in order to permit him to complete the injuncted building works. On 18 February 2013 the Court dismissed Mr Ross' application (Lane Cove Council v Ross (No 5) [2013] NSWLEC 17). 29On 27 February 2013 the part-heard proceedings were before the Court for further directions. Mr Ross was ordered to file his evidence by 15 March 2013. The matter was set down for a further directions hearing on 20 March 2013. Mr Ross did not comply with the order regarding the filing of his evidence. 30On 12 March 2013 the building certificate was refused by the council. 31On 20 March 2013 when the matter was next before the Court for directions, Mr Ross did not appear. Instead, Ms Melissa Benn appeared on behalf of Ms Edilbi seeking an adjournment of the proceedings for two weeks. The application was refused (see Lane Cove Council v Ross (No 6) [2013] NSWLEC 74 at [22]). Further orders were made for the preparation of evidence, and the resumption of the part-heard matter was set down for 27, 28 and 29 May 2013. 32On 1 May 2013 Ms Edilbi, not Mr Ross, appealed the refusal of the council to issue a building certificate. Those Class 1 proceedings are currently pending in the Court. 33On 22 May 2013 Mr Ross sought an adjournment of the part-heard proceedings listed to commence on 27 May 2013. Mr Ross was represented by Mr Rick O'Gorman-Hughes of counsel. That application was refused (Ross (No 6)). 34During the vacation application it became apparent that Mr Ross had not complied with the timetable set by the Court on 20 March 2013 for the filing of his evidence and submissions in respect of the part-heard proceedings. An order was made on 22 May 2013 directing Mr Ross to inform the council in writing by 12pm 23 May 2013 of the evidence upon which Mr Ross would be relying at the hearing commencing the following Monday, 27 May 2013. At 6:21pm on Thursday 23 May 2013, Ms Benn emailed the solicitor for the council and advised that Mr Ross would be relying on the following: 1. Affidavit filed 20 May 2013 of Mr. Raymond Ross; 2. Two reports of Nikolai Koloff dated 8 August 2012 and 13 January 2013; and 3. Mr. Turisi's statement of evidence in the class 1 proceedings. Ms Benn put the council on notice that their witnesses would be required for cross-examination at the hearing. 35However, at no point has Ms Benn ever filed a notice of appearance on behalf of Mr Ross in these proceedings.

Resumed Hearing on 27, 28 and 29 May 2013 36At the resumption of the hearing to determine whether the relief sought by the council in prayers for relief 4, 5 and 6 of the summons ought to be granted, Mr Ross was unrepresented. Several applications to adjourn the resumed matter were made by him (see Lane Cove Council v Ross (No 7) [2013] NSWLEC 76; Lane Cove Council v Ross (No 12) [2013] NSWLEC 82 and Lane Cove Council v Ross (No 13) [2013] NSWLEC 80). The applications were refused. Mr Ross also made an application that I recuse myself on the grounds of actual and apprehended bias. This was also refused (Lane Cove Council v Ross (No 11) [2013] NSWLEC 81). 37The bringing of multiple applications for adjournments and the application for recusal, combined with Mr Ross' general conduct during the course of the hearing on 27, 28 and up to 2:30pm on 29 May 2013, gave rise to the overwhelming inference that over the two and a half days that he appeared before the Court, Mr Ross engaged in a calculated course of delay and obstruction in order to prevent the substance of the resumed proceedings being heard and determined. This was highly unfortunate. 38Having exhausted all of his options to avoid the resumption of the proceedings by the luncheon adjournment of the third day of the three day hearing, it was made tolerably clear to Mr Ross that the hearing would, in the absence of any legitimate reason not to, continue. Mr Ross thereupon informed the Court that he was feeling nauseous and unwell and would not be able to continue participating in the matter. The Court informed Mr Ross that in the absence of cogent medical evidence supporting his claim of illness, the hearing would proceed in his absence. The Court warned Mr Ross that his failure to participate in the remainder of the proceedings could result in the orders for relief sought in prayers 4, 5 and 6 of the summons (which included an adverse costs order) being made. Mr Ross indicated that he understood and, at approximately 2:30pm, he departed the Court room and the proceedings continued on an ex parte basis.

Evidence of the Council in Support of Demolition and Reinstatement 39In relation to the demolition and reinstatement relief it seeks, the council divided up the issues for determination as follows: (a) the unlawful garage - the northern side of the property has been excavated, particularly towards the rear, and an unauthorised second garage has been constructed. In the s 96 proceedings before Dixon C this area was described as an "open area" and it was proposed to be subject to a condition that prohibited its enclosure or use for habitable purposes and prohibited its use for storage of trailers and other items. The concern of the council is that if vehicles are to access the rear storage area they will necessarily be required to travel up the northern side of the dwelling which will become a driveway rather than a landscaped area; (b) the northern open space area - at the s 96 hearing before Dixon C it was proposed that a fence would be constructed across this area to close it off from the street, with a gate wide enough only to enable pedestrian access. The area was to be landscaped and a condition imposed that the area not be used for the transportation of vehicles; (c) the second level balcony - at the upper level of the eastern end of the building there is a concrete overhang of approximately 1.5m in width, apparently intended as a balcony off the master bedroom. The windows approved in that area are being constructed as full length doors. The council seeks the removal of the balcony and the reinstatement of the windows; (d) the awnings - at the first and second levels on the northern and western elevations there are large concrete overhangs which have been described by Mr Ross as awnings, and within which he proposes to install a form of shading device. At all times removal of the awnings has been sought by the council; and (e) the balcony overhang - the concrete slab on the second level has been extended in its south west corner closer to the street, presumably to provide a roof over the balcony below. The council seeks the removal of the overhang. 40Because the remainder of the proceedings were heard ex parte, I have set out in more fulsome detail than would otherwise be necessary, the evidence relied upon by the parties. 41In addition to the evidence of Mr Moore, the council relied on the expert evidence of Mr Kevin Leedow and Mr Kerry Nash. 42Mr Leedow is employed by Cardno and is the Senior Principal in the Building Structures Section. Mr Leedow is an engineer who gave evidence on the viability of ordering demolition of the unlawful building works. 43In his report dated 11 April 2013, Mr Leedow provided an opinion on the integrity of the following features of the development on the property: (a) the concrete awnings constructed at the first floor level on the northern and western elevations of the dwelling; (b) the concrete awnings constructed on the second floor level on the northern and western elevations; (c) the extension of the second floor slab at the south western corner of the dwelling to form a lid to the balcony located underneath it; and (d) a balcony extension on the eastern side of the dwelling at the second floor level. 44Mr Leedow noted in his report that Mr Nikolai Koloff, the structural engineer engaged by Mr Ross, had advised as follows in his structural certificate dated 8 August 2012: Any proposal to demolish awnings and other parts of the structure such as the extended second floor roof garden area as proposed would be impractical and unwise as these elements form part of the building structure. 45In his supplementary structural certificate dated 13 January 2013, Mr Koloff advised that: The placement of a concrete slab flat roof as proposed in Section 96 amendments would not be possible or advisable if the removal of the awnings is to be contemplated...The concrete awning frame is an extension of structural beams providing the slab with necessary stiffness against torsional loading given the supports provided. 46Mr Leedow noted that Mr Koloff had not explained or elaborated upon the opinions that he expressed in each structural certificate. 47It was Mr Leedow's view that because of the substantial layout changes between the works as originally envisaged in the consent and the works as constructed, the original structural drawings and plans forming part of the consent could not be used to assess the structural adequacy of the existing building works. 48Mr Leedow was briefed with a copy of Mr Koloff's drawing entitled "first floor slab (front) dated 30 August 2010". Shown on this revised first floor slab plan was the layout of the awning beams and details of some of the associated beams. Mr Leedow noted that Mr Koloff met with the co-author of Mr Leedow's report, Mr Doug McMillan (also of Cardno), on site on 18 March 2013 to discuss the works as constructed. At this meeting Mr Koloff advised that contrary to previous arrangements he could not provide access to the property. 49Mr Koloff advised that all the untagged beams had the same reinforcing as the beam wrongly tagged as 'B1' over the north wall, which should have been tagged as 'B2'. Mr Koloff further advised that there were no structural drawings for the second floor slab at the front of the house and that the second floor slabs and beams in this region had the same reinforcing as the first floor. 50Mr Leedow noted that subsequent attempts to arrange an inspection of the property so that the works as constructed could be assessed were unsuccessful. While access to neighbouring properties was later arranged, certain aspects of the works as constructed could not be viewed from these properties and, because only limited structural drawings detailing exactly how the dwelling was constructed were available, full structural evaluation of the effects of the proposed demolition works could not be made. 51In light of the above background, the substance of Mr Leedow's report may be summarised as follows: (a) in respect of the northern and western awning structures at the first floor level, he assessed that the removal of the cantilevered awnings on the northern and western sides of the first floor slab would have a minimal detrimental effect on the performance of the remaining portions of the slab except for the west facing balcony; (b) in respect of the west facing balcony at the first floor slab level, Mr Leedow noted that it was supported on its western edges by a "dog legged beam", the exact functioning of which was difficult to evaluate because the adjacent slab mesh was not shown as anchored into the beam. Accordingly removal of the western awning beams at first floor level without providing some additional form of support to the dog legged portion of the beam on the western edge of the balcony "would be very inadvisable". Thus he recommended that the beam be temporarily propped at the dog leg before the awning beams were demolished. Once this was carried out, the awning beams could be removed; (c) in relation to the northern and western awning structures of the second floor level, because Mr Koloff had advised that the reinforcing on the second floor slabs and beams at the western end of the dwelling is the same as provided in the first floor, Mr Leedow advised that the northern and western awning structures at the second floor level could be demolished with minimal detrimental effect on the performance of the remaining second floor structure; (d) in relation to the projecting second floor slab to the west of the garden box (that is, the lid to the first floor western balcony), because the south western corner of the second floor was supported on a column located immediately adjacent to the corner, the projecting portion of the second floor slab to the west of the garden box cannot be demolished without first installing a new column at the junction of the eastern and southern beams on the first floor balcony at the south western corner of the house to support the cut down southern beam at the second floor level. Once the new column has been installed, then the second floor projecting slab and associated beams could be demolished without significant impact on the remaining second floor structure; (e) in respect of the cantilevered balcony at the second floor level on the eastern end of the dwelling, Mr Leedow noted that the original structural drawings for the second floor slab indicated a set of stairs in the south western corner of the eastern extension to the original dwelling and that a load bearing wall was to be provided on the eastern side of the stairs. Although Mr Koloff's 8 August 2012 structural certificate noted that the stairs had been deleted, the certificate was silent as to how the reinforcing in the first and second floor slabs was to be adjusted to cater for the increased slab spans resulting from the deletion of the load bearing wall beside the stairs. Without updated details of the as constructed slab thickness and reinforcing in the eastern extension of the house, neither the adequacy of what has been constructed, nor the effect of demolishing the cantilever balcony at the eastern end of the structure could be evaluated. An inspection from the neighbouring property indicated that the internal walls at the second floor level have been constructed in brick work. This further suggested that the slabs in the eastern extension were not constructed as originally approved. Mr Leedow noted that having a cantilever on the eastern side of the eastern extension at the second floor level was beneficial to the adjacent second floor slab with respect to its deflection and strength characteristics. Without construction details of the second floor slab, an evaluation of whether demolition of the cantilever could be accommodated without significant detrimental effects was not possible. However, Mr Leedow opined that it was "highly probable" that any detrimental effects could be offset by the installation of either carbon fibre reinforcing or by beams under the slab; and (f) in relation to the costs of the proposed demolition works and necessary strengthening, Mr Leedow stated that the pricing of demolition and strengthening works was the realm of either an experienced contractor specialising in remedial building works or a specialist quantity surveyor experienced in such works. Cardno did not have the necessary experience to accurately price the demolition and strengthening works, but he nevertheless estimated the works to cost between $30,000 to $40,000 inclusive of GST. 52Thus, subject to the additional support recommended to the dog legged portion of the beam on the western edge of the west facing balcony and the installation of either carbon fibre reinforcing or beams under the slab at the eastern end of the second floor level, it was Mr Leedow's opinion that demolition of the unlawful works could be carried out. 53Mr Kerry Nash is a consultant town planner, who was engaged by the council to provide town planning advice in relation to the property. Mr Nash was also engaged by the council to provide town planning advice in relation to the Class 1 appeal heard before Dixon C on 18 and 19 December 2012. 54Mr Nash deposed in his affidavit affirmed 12 April 2013, that he had inspected the property on 27 November and 7 December 2012 in preparation for the Class 1 appeal. 55Mr Nash compiled a list of variations between the approved development, the s 96 modification application drawings and the as-built structure on the property. On any view, the inconsistencies were extensive. 56To demonstrate this point, in an exercise similar to that undertaken by Mr Moore, Mr Nash marked up a set of plans provided by Mr Ross for the purpose of the s 96 appeal to demonstrate the variations and to indicate what works, in his opinion, would be required in order to reinstate the dwelling, as far as practicable, to that which was approved, or alternatively, to ameliorate the impacts of any unauthorised works which may be allowed to be retained. 57Photographs attached to Mr Nash's affidavit demonstrated the extent of the unlawful works. The photographs showed the balcony on the second floor to the east and the impact on the privacy of the adjoining neighbours that it has; the excavated driveway to an unauthorised double garage at the rear of the dwelling; and the unauthorised concrete awnings projecting from the first and second floors of the dwelling. 58In his affidavit, Mr Nash disclosed that he had had discussions with another expert engaged by Mr Ross, Mr Gerard Turrisi. There was agreement between himself and Mr Turrisi that certain building works would need to be carried out and conditions imposed in order to ensure that: (a) an unlawfully constructed area marked "open space" on the plans prepared by Mr Ross as part of the s 96 appeal was not used as a garage or for any habitable purposes; and (b) that the side yard area was used only as a landscaped area and that access through that area was limited to pedestrians. 59Mr Nash noted that while he and Mr Turrisi had contemplated that conditions could be imposed pursuant to the s 96 appeal before the Court, this never eventuated.

Evidence of Mr Ross Opposing Demolition and Reinstatement 60It is clear from the email that Ms Benn sent to the council's solicitors on 23 May 2013 at 6:21pm that Mr Ross intended to rely upon his affidavit sworn 20 May 2013. I have therefore had regard to its contents. In doing so I have considered the objections raised by the council to various paragraphs in that affidavit. All of the objections have been rejected. 61In fairness to Mr Ross I have also had regard to his affidavit sworn 12 July 2012, that was read by him in respect of these proceedings on 13 August 2012 (see Ross (No 4)). 62Although Ms Benn informed the council that Mr Ross would also be seeking to rely upon expert evidence from Mr Koloff and Mr Turrisi at the resumed part-heard hearing, neither of these affidavits have been filed with the Court. Even if they had, I would not have had regard to them given that those witnesses were not available for cross-examination by the council. 63In his affidavit sworn 12 July 2012, Mr Ross detailed the history of the granting of the consent. He states that the drawings as approved contained deficiencies that required "some changes to meet structural and functional requirements". These came to light during the excavation process in 2008. Accordingly, he engaged an architect, Mr Herbert Dharamwan from H & D Studio Designs to advise on the building project and to prepare a s 96 modification application. Mr Ross stated that Mr Dharamwan attempted to meet with council officers in order to finalise the application, but was rebuffed. This led to a delay in lodging the application. 64According to Mr Ross it is apparent from the s 96 modification application documentation lodged with the council on 11 July 2012 that the changes to the development were "contained almost entirely within the approved construction envelope" and that they were substantially in accordance with the approved drawings except for the removal of the staircase, which was nevertheless "well within building envelope". 65Mr Ross summarised his position as at that date as follows: + The changes to the DA are substantially internal and contained entirely within the approved building footprint and envelope. + Changes are largely cosmetic and have little if no impact on the amenity of neighbouring properties. + Changes are entirely in accordance with the DCP and consequently there can be no valid basis for the plaintiff disallowing the changes. + Changes are justified on sound engineering bases. + The changes to the approved [sic] are unremarkable given that the DA approval is for additions to an existing residence and requiring a degree of adaptation and structural engineering which can only be ascertained after the project is commenced. + The private PCA and earlier Council personnel apparently consented to the changes and took no action for in excess of three years. + See also attached section 96 drawings and Statement of Environmental Effects prepared by independent architects H & D Studio Design. + The argument for a stay based on 'entrenchment' has no valid basis given that some three years have passed and two levels of concrete slabs have been poured after the excavation was completed which apparently is the single largest part of Council's objection. + The private PCA has consistently refused to issue a Notice of Intention to issue and [sic] order and only did so only recently after significant pressure from Council. + There are significant cost implications to the defendant. + There is no prejudice to the plaintiff given that the completion of works cannot and will not be used by the defendant to oppose any demolition order that may arise from this action. + The defendant has complied with the requirement to submit a Section 96 Amendment. 66In his affidavit Mr Ross complained of the delay by the council in not commencing these proceedings for approximately three years after the consent was granted. He noted that the cost of the delay in finalising the construction of the dwelling was approximately $200 per week for scaffold hire and loss of rent of approximately $1,500 per week. Mr Ross stated that other penalties applied, including those in respect of the formwork on the property. 67In his affidavit sworn 20 May 2013, Mr Ross repeated that it was necessary to make changes and adaptations to the structure as approved by the consent. He states that a private certifier was made aware of the changes, as were council officers. At the time he was advised by the council that it would be necessary for him to lodge an application for a building certificate. However, in May 2012, two years after the completion of the works, the council instead requested that he lodge a s 96 modification application to regularise the works. This advice was followed by Mr Ross, who engaged Mr Dharamwan to prepare and lodge the s 96 application. Delays in lodging the application were due to the conduct of the council. 68Notwithstanding that Mr Ross followed the council's advice, on 28 June 2012 the council commenced proceedings against him. Thereafter the history of the proceedings stated by Mr Ross is consistent with that described above in the judgment up to the hearing before Dixon C. 69In relation to the Class 1 appeal before the Commissioner, Mr Ross explained in his affidavit that upon becoming concerned that the Court would not approve the modification application because the development as sought to be modified was not substantially the same for that which the consent had originally been granted, he requested his legal representatives to ask the council to consider a proposal that he lodge a development application to use the existing structure and to complete construction of the dwelling as proposed in his s 96 application. The council ignored the proposal. 70Mr Ross' initial concern crystallised during the hearing before Dixon C and it was for this reason that he amended his application to remove the awnings. It was his intention at that time to lodge a separate building certificate application for the awnings. Such an application could be considered on its merits. However, even though the awnings were deleted from the application, the council continued to argue before the Commissioner that the development as proposed was not substantially the same for that which consent was originally granted. However, the Commissioner approved the application subject to conditions, and the proceedings were adjourned to enable him to prepare amended plans. 71On 29 January 2013, when the Class 1 appeal resumed, Mr Ross was unable to afford legal representation and appeared for himself. Prior to the hearing he provided the council with amended plans and a report from a structural engineer. 72At the hearing, Dixon C is alleged to have told him that he would have to remove the awnings. Mr Ross stated that he understood this comment to mean that he would be required to demolish the awnings as a condition of any modified consent. The demolition of the awnings, which were extensions of floor and roof structures, would have serious structural implications for the rest of the dwelling, and accordingly, based on what he had been told by the Commissioner, he discontinued the proceedings. 73As a result of mounting costs from construction delays, scaffold hire, significant damage to the structure and finishes from exposure to weather, loss of rental, legal costs and so on, the property was sold at a significant financial loss in about October or November 2012. According to Mr Ross, the new owner of the property, Ms Sarab Chami, delayed registration of the transfer until after determination of the s 96 application before the Commissioner. 74Mr Ross states that "on 16 January 2013 a building certificate application to regularise the construction was lodged in my name at the request of one of the new owners and owner builder, Ms Hadia Edilbi". That application was refused on 12 March 2013 and on 1 May 2013, Ms Edilbi appealed the refusal to the Court. The first return date for that appeal was 29 May 2013. 75Mr Ross stated that until the building certificate appeal is determined, the Court will not have had the opportunity of assessing the merit of the concrete awnings. It is his belief that the awnings are integrated with the structure and their removal will have significant structural implications for the remainder of the building. 76Mr Ross stated that: I had intended for the Court to conduct a merit assessment of the awnings in the modification application appeal but was prevented from doing so because the Council raised as an issue that the amended development would not be substantially the same as what was originally approved. 77Finally, Mr Ross noted that he had not been able to afford legal representation throughout the proceedings.

Mr Ross Must Remove the Unlawful Works and Reinstate the Building in Accordance with the Terms of the Consent 78Although the Court made findings in Ross (No 4) that Mr Ross had built the dwelling other than in accordance with the terms of the consent, and therefore, had breached s 76A(1)(a) of the EPAA, I have, nevertheless, revisited these findings and reasonings in light of the additional evidence now put before the Court as a matter of fairness to Mr Ross. In my opinion, the findings made in Ross (No 4) must stand. There is nothing in the evidence before the Court in these resumed proceedings that suggests that these findings were erroneous. On the contrary, the evidence relied upon by the council in this resumed hearing, particularly the further evidence of Mr Moore and Mr Nash, reinforce the earlier findings of contravention of the EPAA made by the Court and confirm the appropriateness of orders 1, 2 and 3 made in Ross (No 4) (at [23]). 79Mr Ross essentially complains that the orders sought by the council in prayers for relief 4 and 5 of the summons should not be granted because there has been no merit assessment of the as-built dwelling. This is because there has been no merit assessment of the awnings. Mr Ross submits that until such time as the Class 1 appeal against the refusal by the council to issue a building certificate is determined (which will include an assessment of the awnings), the hearing should not proceed and no orders for relief should be made as a proper exercise of the Court's discretion. 80As I found in Ross (No 6), this submission is misconceived. In my opinion, Mr Ross has already had the benefit of a merit assessment. It was his decision to remove the awnings from the s 96 modification application appeal before Dixon C. While his reason for doing so may have been genuine, he nevertheless cannot claim that he has not had the benefit of a merit assessment of the dwelling. It was his decision to remove the awnings from that appeal, and it was his decision to discontinue it. 81Insofar as he asserts that the building certificate appeal should be permitted to proceed prior to the resolution of this matter, as the procedural chronology set out above demonstrates, Mr Ross or Ms Edilbi have had ample opportunity to appeal against the refusal to issue the certificate and have not proceeded in a timely manner. It is no coincidence, in my view, that the appeal against the refusal to issue a building certificate was not filed until approximately three weeks before this hearing was listed to commence. In any event, the Court can have regard under s 124(1) of the EPAA to the same matters and can take into account the same considerations in these proceedings that can be raised in any appeal under s 149F(3) of the EPAA. In these circumstances, there is every utility in proceeding to determine this Class 4 matter. 82Mr Ross submits that the Court cannot go behind the change of ownership in the property and that to order relief binding only him would be futile in these circumstances. I do not agree. 83I accept that Mr Ross is no longer, to the extent that he ever was, the registered owner of the property. Furthermore, while the circumstances surrounding the change of ownership are more than a little suggestive of the sham transaction the council contends for, I do not accept, on the balance of probabilities that the change in ownership can be characterised in this way on the evidence before me. 84But, this is not an end to the matter. It is sufficient for the purposes of s 124 of the EPAA that, by his own admission, Mr Ross is the person who carried out the unlawful works on the property and has expressed an intention to continue carrying out building works on the property. It was Mr Ross' evidence in cross-examination that as the engineer who designed the structure on the property, he is the person responsible for its continued construction and completion. I therefore find that Mr Ross continues to actively participate in the building works on the property and exercises control over them notwithstanding the change in ownership. The relief sought by the council may therefore be ordered against Mr Ross. 85The discretion under s 124 is wide and extends to both the granting and withholding of relief (F Hannan Pty Ltd v Electricity Commission (NSW) (No 3) (1985) 66 LGERA 306 at 312; ACR Trading Pty Ltd v Fat-Sel Pty Limited (1987) 11 NSWLR 67 at 82D; Warringah Shire Council v Sedevcic (1987) 10 NSWLR 335 at 335-341 and Hoxton Park Residents Action Group Inc v Liverpool City Council (No 3) [2012] NSWLEC 43; (2012) 190 LGERA 119 at [10]-[12]). 86There are many illustrations of this Court ordering the removal of unlawful development works (Woollahra Municipal Council v Sahade [2012] NSWLEC 76; Canterbury City Council v Mihalopoulos [2010] NSWLEC 248; Glaser v Poole [2010] NSWLEC 143; Fairfield City Council v Ly [2008] NSWLEC 322 and Sutherland Shire Council v Nader (No 3) [2007] NSWLEC 469, upheld on appeal: Nader v Sutherland Shire Council [2008] NSWCA 265). 87The Court must weigh up all the relevant factors including the injury to the public interest by the denial of the relief; the likely hardship to the holder of the development consent by granting the relief; any relevant conduct of Mr Ross; any conduct of the council, including delay, in bringing the proceedings; whether the breach is merely technical; and the impact of the breach on the environment. 88The discretion is concerned with the enforcement of a public duty imposed pursuant to an enactment of Parliament, namely, the EPAA. If exceptions to compliance with the EPAA are sanctioned, then its orderly enforcement is undermined (Glaser v Poole at [60] and Mihalopoulos at [49]). 89The exercise of the Court's discretion must reflect the particular circumstances of the case before it. Having regard to the evidence before the Court, the Court finds as follows: (a) the impugned works were, as Mr Ross has admitted, carried out otherwise than in accordance with the consent. In this regard they were undertaken by Mr Ross without the required development consent and in contravention of the EPAA; (b) on any view, as the evidence of Mr Nash, Mr Moore and Mr Leedow demonstrates it cannot be said that the breaches of the EPAA are merely technical. I reject Mr Ross' submission to the contrary; (c) the impact of the unapproved works on the privacy and amenity of the neighbours is not insignificant as the evidence of Mr Nash and Mr Moore make evident; (d) as the evidence of Mr Leedow and Mr Moore discloses, it is not certain whether the structure as-built, given that the dwelling has not been constructed in accordance with the approved plans and drawings, is structurally sound, and therefore, safe; (e) by contrast, the evidence of Mr Leedow indicates that the removal of the unlawful works is viable and can be undertaken in a manner that results in a structurally sound building; (f) the conduct of Mr Ross is a relevant consideration (Willoughby City Council v Dasco Design and Construction Pty Ltd [2000] NSWLEC 257; (2000) 111 LGERA 422 at [77]; Glaser v Poole at [68] and Mihalopoulos at [50(b)]). In this regard Mr Ross has demonstrated in his dealings with the council and by his conduct during these proceedings a cavalier attitude with respect to the law. Even if, as an alternative to removal and remediation, a form of orders could be crafted permitting the structure to remain as-built, albeit with the imposition of conditions, the Court has no confidence that these conditions would be complied with; (g) conversely, there is no cogent evidence to demonstrate that the council should be denied relief by reason of its conduct in the proceedings. The council has, at all times, sought to resolve this matter by way of negotiation and settlement. I do not accept that the council has in any way engaged in delay that would disentitle it from the relief it seeks; and (h) although it is self evident from the evidence given by Mr Leedow and having regard to the scope of the unapproved works, that the impact of any demolition and reinstatement orders made by the Court will not be insignificant, this factor alone is insufficient to prevent these orders being made. In any event, the precise effect of a demolition and reinstatement order on Mr Ross is not known. This includes any finding as to the cost of complying with such orders. While I note the estimate given by Mr Leedow of the likely costs in this regard, I make no findings in respect of it given, as Mr Leedow acknowledged, he has no expertise in these matters. 90Mr Ross has won a private advantage for himself by constructing the dwelling other than in compliance with the consent (Sedevcic at 339-340 and Liverpool Plains Shire Council v Vella (No 2) [2013] NSWLEC 75). As stated above, his actions have undermined the legislative purposes of the EPAA. An order requiring the removal of the unauthorised works will remedy the breach of the EPAA by putting Mr Ross back in the position he would have been had he complied with the consent (Sahade at [71]-[72]). The making of the orders sought by the council will enforce the public duty imposed by the EPAA not to carry out development that requires development consent without first obtaining such consent. Enforcing this public duty upholds the public interest which exists in the orderly development and use of the environment. 91Finally, I note that it is the council, and not any neighbours, that have made the application for enforcement of the law. This is consistent with the council's duty to ensure that the planning regime of the State is not thwarted. In these circumstances, the Court is less likely to deny the relief sought (Sedevcic at 340 and Vella (No 2) at [37]). 92Having regard to the totality of the circumstances and the evidence before me, I am of the opinion that ordering the removal of the unlawful building works and the reinstatement of the dwelling to the structure approved in the consent is appropriate. 93Having said this, from the summary of Mr Leedow's evidence given above, it is apparent that in order to reinstate the property in accordance with the consent, some works will be required in order to ensure the reinstatement and/or rebuild is structurally sound. This does not matter.

Proposed Orders 94The Court therefore proposes to make the following orders: (1) that within 90 days Mr Ross demolish or cause to be demolished such unauthorised works to the dwelling house at 8 Bayview Street, Northwood, New South Wales ("the property") as have been identified in paragraphs 9 and 18 of the affidavit of Mr Adrian Moore affirmed 28 June 2012; (2) that within 90 days Mr Ross rebuild and/or reinstate the property in accordance with development consent DA 325/07 issued 2 April 2008 by Lane Cove Council ("the council"); (3) that the works identified in orders 1 and 2 are to be carried out in accordance with the recommendations in paragraphs 4.1 to 4.5 in the report of Mr Kevin Leedow dated 11 April 2013, annexed to the affidavit of Mr Leedow sworn 12 April 2013; (4) that Mr Ross pay the council's costs of the proceedings as agreed or assessed; and (5) that the exhibits are to be returned. 95In their current form the proposed orders lack requisite clarity and certainty. Accordingly, the parties are directed to file within seven days of the date of this judgment short minutes of order in conformity with the reasons above. Upon the filing of these short minutes of order the Court shall either make the orders as filed if they are in a form satisfactory to the Court, or alternatively, will relist the matter for further argument at a time and date notified to the parties. If further time is required to finalise the form of the orders, the parties may, by eCourt communication, apply for an extension of time to file the short minutes of order.

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: 13 June 2013

(2012) 190 LGERA 119

(2000) 111 LGERA 422

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Judgment (9 paragraphs)

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Cited By (8)