Lesnewski v Mosman Municipal Council & Anor

Lesnewski v Mosman Municipal Council & Anor - [2004] NSWLEC 99 - NSWLEC 1997 case summary — Zoe

[9]

The Council argued that there can be no such separate ground of challenge. The Second Respondents adopted the Council's submissions. The Council argued that the Applicant must prove that the decision maker made the determination beyond its jurisdiction through factual or legal error. Where it is alleged that the decision maker has made an error such that the decision is invalid or void, it must be shown that the error is within one of the categories outlined in Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24. If an error of law is found then judicial review may be available. If the error alleged is one of fact then, unless the fact is a jurisdictional fact or the determination is unreasonable in the Wednesbury sense, the decision is not subject to challenge. The Council submitted that the Applicant cannot simply allege, as it does in par 18 of the Second Further Amended Points of Claim, that the Council breached the EP&A Act when it issued the construction certificate. The Applicant must articulate the error said to constitute a breach. If the alleged breach is that the decision maker made a mistake of fact in coming to the decision that it did, that is not a breach of the EP&A Act at all. Finding on argument 1 8. I do not consider that the separate ground raised in par 18 of the Second Further Amended Points of Claim is available to the Applicant. The argument appears to be a novel one and it is not entirely clear to me how the Court could have jurisdiction in these circumstances. I do not consider that Donnelly establishes the precedent the Applicant argues. Clause 145(1) of the EP&A Regulation provides that a certifying authority must not issue a construction certificate "unless it is satisfied … that the design and construction of the building ….[is] not inconsistent with the development consent." Accordingly, the clause turns on the satisfaction of the certifying authority and it is not open to this Court to review whether or not the certifying authority was correct in being satisfied that the design and construction of the building was not inconsistent with the development consent unless this decision is based on some error of law. Accordingly, I agree with and adopt the Council's submissions set out at par 7 above. Argument 2 - jurisdictional fact (paragraph 18C of Second Further Amended Points of Claim) 9. The Applicant also argued that the requirement imposed by cl 145(1)(a) of the EP&A Regulation that the certifying authority, in this case the Council, be satisfied that the design and construction of the building was not inconsistent with the development consent was a preliminary finding to the grant of a construction certificate and therefore a jurisdictional fact. Accordingly, the Court is able to reach its own determination as to whether such a fact exists. Reliance was placed by the Applicant on Transport Action Group Against Motorways Inc v Roads and Traffic Authority (1999) 104 LGERA 133 at [146] and [192 - 3] and Corporation of the City of Enfield v Development Assessment Commission (2000) 199 CLR 135. The Applicant also relied on the recent decision of Ipp J in Chambers v Maclean Shire Council (2003) 126 LGERA 7 where his Honour held at [47] that, adopting Spigelman CJ in Timbarra Protection Coalition Inc v Ross Mining NL (1999) 46 NSWLR 55 at [65], "if the factual reference is preliminary or ancillary to the exercise of a statutory power, the conclusion is likely to be a jurisdictional fact . "

[21]

I note that the High Court has held that a court may, in circumstances where the legality of executive administrative action taken pursuant to a decision depends upon the existence of a particular factual situation, attach a greater weight to the decision of a primary decision maker with particular knowledge which especially equips them to make the decision: Enfield at 155. In Enfield at 47, Gleeson CJ, Gummow, Kirby and Hayne JJ noted that: The weight to be given to the opinion of the tribunal in a particular case will depend upon the circumstances. These will include such matters as the field in which the tribunal operates, the criteria for appointment of its members, the materials upon which it acts in exercising its functions and the extent to which its decisions are supported by disclosed processes of reasoning. 28. In the context of this case where the decision to issue a construction certificate requires an application of expertise to the issue of whether there is consistency between a development application and a construction certificate, and where the certifying authority is the Council who issued the development consent, the considerations referred to in Enfield are pertinent. I will apply this in deciding whether or not the Council's actions were manifestly unreasonable in ground 3. Argument 3 - issuing construction certificate was manifestly unreasonable (paragraph 18A of Second Further Amended Points of Claim) 29. The Applicant argued that no reasonable Council could have concluded that the design and construction of the building, as depicted in the construction certificate plans ("the CC Plans"), was not inconsistent with the development consent plans ("the DC Plans"). The particular inconsistencies relied on were as follows: (1) The DC Plans provided for the front western side balcony to be cantilevered whilst the CC Plans provide for columns 0.6 m wide to support this balcony. (2) The DC Plans show the eastern side of the house to be 2.6 metres from the common boundary whilst the CC Plans provide for the eastern side of the house to be 2.05 metres from the common boundary. (3) The DC Plans provide for the height of the swimming pool concourse to be RL 36.70 AHD whilst the CC Plans provide for the height to be RL 36.82 AHD. None of these inconsistencies are disputed by the Council.

[29]

The relevant principles surrounding the test for manifest unreasonableness were set out by Lloyd J in Owen Haviland Pty Limited v North Sydney Council [1997] NSWLEC 39 (7 April 1997): In approaching this issue it is necessary to be mindful of the fact that an appeal is limited to a question of law. It is thus necessary to have regard to the principle that even perverse or unreasonable findings of fact do not constitute errors of law; and even if the reasons whereby a court or tribunal reached its conclusions of fact were demonstrably unsound this would not amount to an error of law ( Randwick Municipal Council v Manousaki (1988) 66 LGRA 330 at 333-334, per Clarke JA with whom Hope and McHugh JJA agreed). It is also necessary to be mindful of the need for an appellate court to proceed with caution, lest it exceed its supervisory role by reviewing the decision on its merits ( Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24 at 42, per Mason J). A mere preference by an appellate court for a different result will not suffice. Wednesbury unreasonableness must not be allowed to open the gate to judicial review of the merits of a decision or action taken within power ( Minister for Urban Affairs and Planning v Rosemount Estates Pty Limited (1996) 91 LGERA 31 at 42, per Sheller JA). The narrow issue of Wednesbury unreasonableness does not entitle me to form my own opinion as to the reasonableness of the decision under appeal and if I think it is unreasonable, though within the scope of the powers granted to the assessor, to declare it invalid. 38. The Applicant's onus of proof cannot be discharged by the calling of an expert witness to give his opinion on the question the Council's delegate had to consider under cl 145 of the EP&A Regulation. I do not accept that Mr Urludag's opinion is conclusive of the matter before me as to whether the Council acted with manifest unreasonableness in issuing the construction certificate. I do, however, accept that expert opinion may assist the Court in its deliberations as to whether a decision reached by a certifying authority to the effect that the design and construction of the building was not inconsistent with the development consent was manifestly unreasonable in line with the principles outlined above.

[34]

Taking the Applicant's case at its highest, the difference between the plans amounts to 0.55m. Taken on its own, and bearing in mind the fact that the development consent plans were not scaled, I do not consider that the Council's satisfaction that such a difference was not inconsistent with the terms of the development consent was unreasonable in the context of this development. This is particularly the case where the Mosman Residential DCP requires a setback of 1500mm. (iii) the height of the swimming pool 47. The third inconsistency alleged is the difference in height of the swimming pool concourse between the development consent plans (36.70 AHD) and the construction certificate plans (36.82 AHD) which difference amounts to 12cm. The Council argues that this difference is a de minimis matter in a complex building project where the Council was entitled to form an opinion that there was consistency between the development consent and the construction certificate. Mr Brindle, who gave evidence for the Second Respondents, was of the view that this difference was minor in nature and resulted in no adverse impacts on amenity. Mr Urludag's oral evidence was also that this was a minor deviation. Once again, on its own, this matter would not justify a conclusion that the Council acted unreasonably in issuing the construction certificate. The cumulative effect of the above differences 48. It is also necessary to consider whether a reasonable Council would have considered that the cumulative effect of the three differences between the development consent and the construction certificate outlined above was so great as to give rise to inconsistency. Considering the Council's role and expertise in this area, and mindful of the approach in Enfield as set out above, I do not consider the Council's conclusion that these were not inconsistent is so unreasonable that no reasonable authority could have arrived at that conclusion in the context of this development application.

[36]

The Council submitted that the Applicant bears the onus of proof in relation to this argument and that she has not discharged this onus. The Council submitted that, in order to succeed on this ground, the Applicant must show that the decision maker never turned his mind to the substantive issues and that the Applicant has raised no evidence that this was so. Finding on argument 4 52. I agree with the Council's submission that the Applicant has not discharged her onus of proof on this ground. In the absence of any evidence as to the Council's decision-making process, the Court is simply unable to determine this issue. It is not self-evident that the inconsistencies between the development consent plans and the construction certificate gives rise to an inference that there was no consideration by the Council of these inconsistencies. Development for which no consent has been obtained 53. The Applicant alleges that the swimming pool and house have not been built in accordance with either the development consent or the construction certificate in relation to eight matters as follows: (1) The height of the swimming pool concourse is RL 36.89 AHD. (2) The wet edge of the swimming pool has not been approved. The Second Respondents state that there is no wet edge and the Applicant did not ultimately rely on this matter. (3) The foundations of the swimming pool are constructed to the boundary. (4) No shutters have been installed on the eastern side of the front eastern balcony as provided for in the construction certificate plans. It was the Second Respondents' evidence that the shutters referred to in (4) would be fixed as soon as these proceedings were resolved. (5) The eastern end of the front eastern balcony has been extended to the eastern wall of the house whilst it is recessed 0.9 metres on the construction certificate plans. (6) The eaves and roofline on the southern side have been extended beyond the construction certificate plans. (7) The fascia boards on the eastern side have been altered from slimline effect to form a canopy over the front balcony. (8) No proper planting has been planted in accordance with the development application.

[37]

The Second Respondents admit matters 1, 4, 5, 6 and 7. They dispute matters 3 and 8 which concern the swimming pool and the planting on the boundary fence next to the pool. The Applicant seeks relief in relation to matters 1, 3 4, 5, 7 and 8. The Applicant does not seek relief in relation to matter 6. The essential matter to be resolved in relation to the six illegal works, four of which are admitted, is whether the relief sought by the Applicant ought be granted, namely whether a declaration of invalidity and an order that the Second Respondents carry out demolition and further work ought to be made. The conflicting evidence and submissions in relation to matters 3 and 8 can also be considered in that context. Relief sought by the Applicant 55. In addition to a declaration that illegal works have been carried out the Applicant seeks orders requiring the Second Respondents carry out the following works: (a) Demolish the front western balcony on the first floor. This relates to the construction certificate argument which I have already dealt with. As I have not declared the construction certificate invalid, this relief will not be granted. (b) The front eastern balcony be altered and constructed in accordance with the construction certificate plans. This relates to matters 4, 5 and 7 as detailed above in par 53. (c) The swimming pool be demolished or alternatively, the structures between the 350mm setback from the swimming pool and the eastern boundary be demolished and replaced with landscaping and the height of the swimming pool concourse be reduced to RL 36.70 AHD. This relates to the construction certificate argument and matters 1 (pool height), 3 (pool foundation) and 8 (proper planting) as detailed above. I have not declared the construction certificate invalid so that relief in relation to the third inconsistency alleged in par 47 concerning the height of the swimming pool of RL 36.82 AHD is not available to the Applicant. Exercise of discretion to grant relief for (b) eastern balcony and (c) swimming pool 56. The Second Respondents have not built matters 1 (pool height), 4 (eastern balcony), 5 (eastern balcony) and 7 (eastern balcony) in accordance with the development consent or the construction certificate. Mr Wright, one of the Second Respondents, gave frank evidence in that regard. The Court has a wide discretion as to whether or not to grant relief; see Warringah Shire Council v Sedevcic (1986) 63 LGRA 361; 10 NSWLR 335. Not complying with the development consent and construction certificate is a serious matter. The development in this case is effectively completed apart from the balcony shutters referred to in matter 4 so that an order for demolition and rebuilding necessarily requires the expenditure of time and money by the Second Respondents.

[41]

Mrs Lesnewski's evidence, as contained in her affidavit of 25 June 2003, is that the extension of the balcony so that it is flush with the eastern wall of the house and the alteration of the fascia boards has added to overshadowing, loss of sunlight and further added to the bulk and scale of the building. Finding on (b) the eastern balcony 62. Failing to comply with the relevant approvals granted by the Council is serious. I consider a declaration that work has been carried out without consent ought be made in relation to matters 4, 5 and 7. A decision by the Court to refrain from requiring the correction of illegal work needs to be carefully considered for fear that the Court will be seen to condone such behaviour. An order requiring the Second Respondents to install the shutters on the eastern balcony (matter 4) is clearly warranted and is not likely to be opposed by the Second Respondents given the evidence of Mr Wright that he intends, in any event, to install these once this matter is resolved. The issue then remains as to whether the relief sought in relation to matters 5 and 7 ought be made. 63. A number of factors must therefore be considered in deciding whether relief ought be granted in addition to the making of declaratory orders. Briefly, these factors include: (1) whether the breach is purely technical; (2) whether the Applicant has delayed in bringing its action; (3) whether the breach may be shown to have a beneficial effect on the environment or amenity of the locality; (4) that the restraint sought is the enforcement of a public statute by which there is a public interest in the orderly development and use of the environment; (5) that the obvious intention of the EP&A Act is that those concerned in the development and use of the environment will comply with the legislation; and (6) that an unjust result may be avoided by postponing the effect of injunctive relief. Warringah Shire Council v Sedevcic per Kirby P at p 365-366 64. Further, in ACR Trading Pty Limited & Anor v Fat-sel Pty Limited & Anor (1987) 11 NSWLR 67 Kirby P said (at p 82): … it is important to appreciate the wide scope and purpose of the discretion conferred by s 124 of the [EP&A] Act. Clearly, it is not a warrant to set at nought the complicated and sensitively balanced provisions of the legislation, substituting for the operation of the law laid down by Parliament, the personal opinions of the judge hearing the case. On the other hand, it would be equally erroneous to ignore the discretion or to give it an unduly restricted operation. It is just as much part of the structure and scheme of the Act, for the enforcement of planning law, as are the other parts. … the discretion conferred by s 124(1) … is a mollifying one. It permits, in appropriate cases, the refusal of injunctive relief where to grant such relief would work such an injustice as to be disproportionate to the ends secured by enforcement of the legislation including by injunction.

Parties

Applicant/Plaintiff:

Lesnewski

Respondent/Defendant:

Mosman Municipal Council & Anor

Cases Cited (15)

CITATION : Lesnewski v Mosman Municipal Council & Anor [2004] NSWLEC 99 APPLICANT Helen Lesnewski PARTIES : RESPONDENT Mosman Municipal Council Robert J Wright and Carol Wright FILE NUMBER(S) : (4)0085 of 2002 CORAM: Pain J KEY ISSUES: Judicial Review :- validity of construction certificate - whether decision to issue a construction certificate is a jurisdictional fact - inconsistency between development consent plans and construction certificate plans - onus of proof Judicial Review:- work done without development consent - discretion to grant relief LEGISLATION CITED: Environmental Planning and Assessment Act 1979 s 122, s 123, s 124 Environmental Planning and Assessment Regulation 2000 cl 145 ACR Trading Pty Limited & Anor v Fat-sel Pty Limited & Anor (1987) 11 NSWLR 67 ; Associated Provincial Picture Houses Limited v Wednesbury Corporation (1948) 1 KB 223 ; Attorney General of NSW v Quinn (1990) 170 CLR 1 ; Chambers v Maclean Shire Council (2003) 126 LGERA 7 ; Corporation of the City of Enfield v Development Assessment Commission (2000) 199 CLR 135; Donnelly v Delta Gold Pty Ltd (2001) 113 LGERA 34 ; Foley v Padley (1984) 154 CLR 349 ; CASES CITED: Hale v Parramatta City Council (1982) 47 LGRA 269; Jones v Dunkel (1958 - 1959) 101 CLR 298 ; Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24; Owen Haviland Pty Limited v North Sydney Council [1997] NSWLEC 39 (7 April 1997); Terry George Androiotakis v Woollahra Municipal Council [1998] NSWLEC 137 (30 June 1998) ; Timbarra Protection Coalition Inc v Ross Mining NL (1999) 46 NSWLR 55 ; Transport Action Group Against Motorways Inc v Roads and Traffic Authority (1999) 104 LGERA 133 ; Warringah Shire Council v Sedevcic (1986) 63 LGRA 361, 10 NSWLR 335; Weal v Bathurst City Council (2000) 111 LGERA 181 DATES OF HEARING: 28/07/03, 29/07/03, 27/11/03, 28/11/03, 1/12/03 DATE OF JUDGMENT: 03/29/2004

[1997] NSWLEC 39

(1987) 11 NSWLR 67

(1990) 170 CLR 1

(2003) 126 LGERA 7

(2000) 199 CLR 135

(2001) 113 LGERA 34

(1984) 154 CLR 349

(1986) 162 CLR 24

(1999) 46 NSWLR 55

(1999) 104 LGERA 133

(2000) 111 LGERA 181

(1999) 197 CLR 611