Liverpool City Council v Tirnova

Leave is granted for the First Respondent to be represented by an agent

1. At a directions hearing on 2 June 2017, the Respondents all indicated to the Court that they would represent themselves in these proceedings. However, on 6 June 2017, the Tirnovas filed a document which expressed the First Respondent's wish to be represented by his son Mr Mehmet Tirnova. In this document, and at the commencement of the hearing on 8 June 2017, the First Respondent explained that he sought the Court's leave to be represented by his son as an agent "due to the lack of English I have".
2. At the commencement of the hearing, Mr Erol Tirnova and Mr Mehmet Tirnova handed up to the Court a signed document to the effect that Mr Mehmet Tirnova had provided the information in rule 7.7(1) of the Land and Environment Court Rules 2007 to his father and that Mr Erol Tirnova authorised his son to appear as his agent in these proceedings (Transcript, 8 June 2017, pp 3-4).
3. In considering all of the relevant matters, the Court determined that it was in the best interests of Mr Erol Tirnova to be represented by his son, as his agent, in these proceedings. Therefore, pursuant to s 63 of the Land and Environment Court Act 1979, the Court granted the leave sought. Although Liverpool Council noted that no evidence was provided by the First Respondent to support his application, it ultimately agreed that it was appropriate to grant the leave sought (Transcript, 8 June 2017, pp 3-4). To guard against any confusion, I should indicate that any subsequent reference to Mr Tirnova in this judgment is to be taken to mean Mr Erol Tirnova.

The relief sought by Liverpool Council

1. The Summons filed by Liverpool Council sought: 1. A declaration that the First Respondent has: a. carried out development for the purpose of a dwelling house, namely the erection of structures in the form of: i. a single-storey extension adding habitable rooms to the rear of an existing dwelling house; ii. a sea wall at the rear of the premises; and iii. a front fence at the front of the premises, on land described as Lot 67 DP 657033 known as 40 Newbridge Road, Chipping Norton (the Land), being land within Zone R2 Low Density Residential for the purposes of Liverpool Local Environmental Plan 2008 and within which zone development for the purposes of dwelling houses could be carried out only with development consent; and b. breached section 76A(1) of the Environmental Planning and Assessment Act 1979 by carrying out that development on the Land without first obtaining development consent. 2. An order that the First Respondent, within 90 days of the date of these orders: a. demolish the structures; b. remove the materials resulting from that demolition; and c. provide receipts to the Applicant demonstrating that those materials have been disposed of at a lawful waste facility. 3. That the First Respondent pay the Applicant's costs of these proceedings. 4. Such further or other order(s) as the Court thinks fit to remedy or restrain the said breach.
2. Whilst the Respondents initially opposed the making of a demolition order with respect to the front fence, the Respondents subsequently withdrew this opposition and agreed to remove the fence. I note that Liverpool Council stated in its closing submissions that "[t]he fence can be replaced with an appropriate fence, such as a pool-style fence with horizontal metal railings that would permit the flood waters to flow through it unimpeded".
3. With respect to the river/sea wall, Liverpool Council advised the Court, after the Court's view of the Land on the first day of the hearing, that it no longer sought an order that this wall be demolished and removed.
4. Hence, it was suggested by Liverpool Council that the Court could make an order, potentially by consent, to reflect the parties' agreement that the front fence may be replaced with a fence more suitable for land in the Moorebank Floodway (Transcript, 9 June 2017, pp 2-3).

The history of the dispute

1. Given that one of the issues in these proceedings is that of the alleged delay of Liverpool Council, it is necessary to set out in some detail the history of relevant events that culminated in the hearing of this matter. To this end, the parties helpfully provided the Court with an agreed chronology to the following effect (Transcript, 8 June 2017, pp 18 and 44). 2009: The Respondents purchase the Land. 2010: The First Respondent carries out the above mentioned development on the Land. April 2011: Liverpool Council becomes aware of the development on the Land when a council officer attends the land and photographs the works in progress. 17 May 2013: Liverpool Council conducts an inspection of the Land. 26 June 2013: Liverpool Council sends letters notifying the Respondents of its intention to issue a demolition order under s 121B of the EPA Act. 22 August 2013: Liverpool Council issues the Respondents with a section 121B demolition order. 12 September 2013: The Respondents lodge a development application and a building certificate application with Liverpool Council. 19 September 2013: Liverpool Council revokes the section 121B demolition order pursuant to s 121ZG of the EPA Act so as to enable it to assess the applications. 14 November 2013: On behalf of the Respondents, GAT and Associates provide a hydraulic modelling report authored by WMAwater Pty Ltd ('WMAwater') to Liverpool Council. 19 November 2013: Urbis Pty Ltd completes its independent assessment of the Respondents' development application for Liverpool Council. 27 November 2013: Liverpool Council resolves to defer the decision to both refuse the Respondents' development application and take enforcement action so as to allow the Respondents an opportunity to address the concerns of Urbis Pty Ltd. 18 December 2013: In a meeting with Liverpool Council, WMAwater presents a second hydraulic modelling report regarding the Land. 4 February 2014: GAT and Associates sends a letter to Liverpool Council containing further additional information relating to the Respondents' development application. 25 February 2014: Liverpool Council resolves to defer the determination of the Respondents' development application until officers of Liverpool Council prepare two reports concerning the approval of development in the Moorebank Voluntary Acquisition Scheme area. 26 March 2014: Liverpool Council resolves to refuse the Respondents' development application and "[p]rogress enforcement action in respect of the unlawful works". Additionally, Liverpool Council resolves to receive and note the report concerning the approval of development in the Moorebank Voluntary Acquisition Scheme area. 10 April 2014: Liverpool Council gives the Respondents its notice of determination refusing to grant development consent with respect to their development application and its reasons for so deciding. 15 April 2016: A Liverpool Council officer inspects the Land in relation to the Respondents' pending building certificate application. 27 July 2016: Liverpool Council notifies the Respondents of its decision to refuse to issue a building certificate and provides its reasons for so deciding. 29 August 2016: Officers of Liverpool Council interview the Respondents with respect to the development. 13 September 2016: Liverpool Council sends letters of demand to the Respondents giving notice of its intention to commence proceedings unless the Respondents undertake to demolish the development. 15 September 2016: Liverpool Council agrees to extend the time for provision of the demanded written undertaking by two weeks. 23 December 2016: Liverpool Council commences these proceedings.

Statutory and regulatory framework

1. In addition to setting out the relevant historical context, it is also necessary to set out the relevant statutory and environmental planning framework.

Environmental planning instruments

1. Part 3 of the EPA Act sets out the provisions governing the making of environmental planning instruments for the purposes of achieving any of the objects of the statute: s 24. More specifically, the provisions under Division 4 of Part 3 concern the making of local environmental plans and the provisions under Division 6 of Part 3 concern the making of development control plans. Importantly, whilst a local environmental plan is an environmental planning instrument under the EPA Act, a development control plan is subordinate and its provisions are not statutory requirements: s 74BA.
2. Hence, s 74C(5) provides that a provision of a development control plan has no effect to the extent that it is either substantially the same as an applicable provision of an environmental planning instrument or is inconsistent or incompatible with a provision of such an instrument.
3. It should also be noted that the principal purpose of a development control plan is to provide guidance on the following matters set out in s 74BA(1): (a) giving effect to the aims of any environmental planning instrument that applies to the development, (b) facilitating development that is permissible under any such instrument, (c) achieving the objectives of land zones under any such instrument. …

Development assessment

1. Under s 4 of the EPA Act, development is defined to mean, inter alia, "the erection of a building" and "the carrying out of a work". The EPA Act regulates development by way of a threefold system of classifying development. As was explained by Ipp JA in Chambers v Maclean Shire Council (2003) 57 NSWLR 152; [2003] NSWCA 100 at [33], the three categories of development are delineated under Div 1 of Pt 4 of the EPA Act: The first category is that provided by s 76(1). Section 76(1) concerns specified developments that, by an "environmental planning instrument", may be carried out without the need for development consent. The second category of development is set out in s 76A(1) and concerns a specified development that, by an environmental planning instrument, may not be carried out except with development consent. The third category is set out in s 76B. It concerns developments that, by an environmental planning instrument, are prohibited, or a development that cannot be carried out on land with or without development consent.
2. Relevantly for these proceedings, section 76A prohibits a person from carrying out development on land that needs development consent without such consent: 76A Development that needs consent (1) General If an environmental planning instrument provides that specified development may not be carried out except with development consent, a person must not carry the development out on land to which the provision applies unless: (a) such a consent has been obtained and is in force, and (b) the development is carried out in accordance with the consent and the instrument. (2) For the purposes of subsection (1), development consent may be obtained: (a) by the making of a determination by a consent authority to grant development consent, or (b) in the case of complying development, by the issue of a complying development certificate. …

Orders of the Court

1. The EPA Act provides that any person may bring proceedings in this Court to remedy or restrain a breach of the EPA Act, including a breach of s 76A: s 123 of the EPA Act (see also s 20(1)(c) of the Land and Environment Court Act 1979).
2. The Court may make such order as it thinks fit to remedy or restrain a breach of the EPA Act if it is satisfied that such a breach has been committed: s 124. In full, section 124 provides: 124 Orders of the Court (1) Where the Court is satisfied that a breach of this Act has been committed or that a breach of this Act will, unless restrained by order of the Court, be committed, it may make such order as it thinks fit to remedy or restrain the breach. (2) Without limiting the powers of the Court under subsection (1), an order made under that subsection may: (a) where the breach of this Act comprises a use of any building, work or land - restrain that use, (b) where the breach of this Act comprises the erection of a building or the carrying out of a work - require the demolition or removal of that building or work, or (c) where the breach of this Act has the effect of altering the condition or state of any building, work or land - require the reinstatement, so far as is practicable, of that building, work or land to the condition or state the building, work or land was in immediately before the breach was committed. (3) Where a breach of this Act would not have been committed but for the failure to obtain a consent under Part 4, the Court, upon application being made by the defendant, may: (a) adjourn the proceedings to enable a development application to be made under Part 4 to obtain that consent, and (b) in its discretion, by interlocutory order, restrain the continuance of the commission of the breach while the proceedings are adjourned. (4) The functions of the Court under this Division are in addition to and not in derogation from any other functions of the Court. (5) Nothing in this section affects the provisions of Division 3 of Part 3 of the Land and Environment Court Act 1979.

Liverpool Local Environmental Plan 2008

1. The aims of the Liverpool Local Environmental Plan 2008 ('LEP') are set out under clause 1.2(2) and are as follows: (a) to encourage a range of housing, employment, recreation and services to meet the needs of existing and future residents of Liverpool, (b) to foster economic, environmental and social well-being so that Liverpool continues to develop as a sustainable and prosperous place to live, work and visit, (c) to provide community and recreation facilities, maintain suitable amenity and offer a variety of quality lifestyle opportunities to a diverse population, (d) to strengthen the regional position of the Liverpool city centre as the service and employment centre for Sydney's south west region, (e) to concentrate intensive land uses and trip-generating activities in locations most accessible to transport and centres, (f) to promote the efficient and equitable provision of public services, infrastructure and amenities, (g) to conserve, protect and enhance the environmental and cultural heritage of Liverpool, (h) to protect and enhance the natural environment in Liverpool, incorporating ecologically sustainable development, (i) to minimise risk to the community in areas subject to environmental hazards, particularly flooding and bush fires, (j) to promote a high standard of urban design that responds appropriately to the existing or desired future character of areas.
2. In many environmental planning instruments, especially local environmental plans, the land use tables regulating the development within areas zoned for particular overarching purposes adopt the threefold classification of development set out in the EPA Act: development that may be carried out without development consent; development that may be carried out only with development consent; and development that is prohibited. As Preston CJ of LEC has explained in Botany Bay City Council v Pet Carriers International Pty Ltd (2013) 201 LGERA 116; [2013] NSWLEC 147 at [25]-[26]: The land use table for each zone identifies, by reference to the purpose of the development, the categories of development that fall within each of the three classifications … Commonly, the environmental planning instrument containing the land use table with the threefold classification of developments describes each purpose, either directly in a definitions clause or indirectly by incorporating definitions in other statutory instruments. Each purpose is indicated in the instruments by means of a description of a character which the purpose imparts to land or buildings on land in which it is pursued. This may be done at varying degrees of particularity.
3. In these proceedings, the relevant land use table which regulates development on the Land is that applying to land zoned as R2 - Low Density Residential, which is set out under Part 2 of the LEP. In full, this land use table provides: Zone R2 Low Density Residential 1 Objectives of zone • To provide for the housing needs of the community within a low density residential environment. • To enable other land uses that provide facilities or services to meet the day to day needs of residents. • To provide a suitable low scale residential character commensurate with a low dwelling density. • To ensure that a high level of residential amenity is achieved and maintained. 2 Permitted without consent Home-based child care; Home occupations 3 Permitted with consent Attached dwellings; Bed and breakfast accommodation; Boarding houses; Building identification signs; Business identification signs; Child care centres; Community facilities; Dwelling houses; Educational establishments; Environmental facilities; Environmental protection works; Exhibition homes; Exhibition villages; Flood mitigation works; Group homes; Health consulting rooms; Home businesses; Home industries; Places of public worship; Recreation areas; Respite day care centres; Roads; Secondary dwellings; Semi-detached dwellings 4 Prohibited Any development not specified in item 2 or 3
4. Also of relevance in these proceedings are clauses 7.6, 7.8 and 7.9, which provide for greater regulatory oversight of development on land at or below the flood planning level and environmentally significant land: see cl 7.8(2) and definition of "environmentally significant land". In full, these clauses provide: 7.6 Environmentally significant land (1) The objectives of this clause are as follows: (a) to maintain bushland, wetlands and wildlife corridors of high conservation value, (b) to identify areas of significance for revegetation to connect to or buffer bushland, wetlands and wildlife corridors, (c) to protect rare and threatened native flora and native fauna, (d) to ensure consideration of the significance of vegetation, the sensitivity of the land and the impact of development on the environment prior to the giving of any development consent. (2) Before determining an application to carry out development on environmentally significant land, the consent authority must consider such of the following as are relevant: (a) the condition and significance of the vegetation on the land and whether it should be substantially retained in that location, (b) the importance of the vegetation in that particular location to native fauna, (c) the sensitivity of the land and the effect of clearing vegetation, (d) the relative stability of the bed and banks of any waterbody that may be affected by the development, whether on the site, upstream or downstream, (e) the effect of the development on water quality, stream flow and the functions of aquatic ecosystems (such as habitat and connectivity), (f) the effect of the development on public access to, and use of, any waterbody and its foreshores. 7.8 Flood planning (1) The objectives of this clause are as follows: (a) to minimise the flood risk to life and property associated with the use of land, (b) to allow development on land that is compatible with the land's flood hazard, taking into account floodplain risk management studies and plans adopted by the Council and projected changes as a result of climate change, including sea level rise and rainfall intensity, (c) to avoid significant adverse impacts, including cumulative impacts, on flood behaviour and the environment. (2) This clause applies to land at or below the flood planning level. (3) Development consent must not be granted to development on land to which this clause applies unless the consent authority is satisfied that the development: (a) is compatible with the flood hazard of the land, and (b) will not significantly adversely affect flood behaviour resulting in detrimental increases in the potential flood affectation of other development or properties, and (c) incorporates appropriate measures to manage risk to life from flood, and (d) will not significantly adversely affect the environment or cause avoidable erosion, siltation, destruction of riparian vegetation or a reduction in the stability of river banks or watercourses, and (e) is not likely to result in unsustainable social and economic costs to the community as a consequence of flooding, and (f) is consistent with any relevant floodplain risk management plan adopted by the Council in accordance with the Floodplain Development Manual. (4) A word or expression used in this clause has the same meaning as it has in the Floodplain Development Manual, unless it is otherwise defined in this Plan. 7.9 Foreshore building line (1) The objective of this clause is to ensure that development in the foreshore area will not impact on natural foreshore processes or affect the significance and amenity of the area. (2) Subject to the other provisions of this Plan, development may be carried out, with development consent, for the purposes of a building on land in the foreshore area only if: (a) the levels, depth or other exceptional features of the site make it appropriate to do so, or (b) the development involves the extension, alteration or rebuilding of an existing building that is erected wholly or partly in the foreshore area and the consent authority is satisfied that the building as extended, altered or rebuilt will not have an adverse impact on the amenity or aesthetic appearance of the foreshore, or (c) the development is for the purposes of any of the following: (i) boat sheds, (ii) sea walls, (iii) wharves, slipways, jetties, (iv) waterway access stairs, (v) swimming pools at or below ground level (existing), (vi) fences, (vii) picnic facilities, cycleways, walking trails or other outdoor recreation facilities. (3) Development consent must not be granted to development referred to in subclause (2) unless the consent authority is satisfied that the development: (a) will contribute to achieving the objectives for development in the zone in which it is to be carried out, and (b) will be compatible in its appearance with the surrounding area, as viewed from both the waterway concerned and the adjacent foreshore areas, and (c) will not cause environmental harm, such as: (i) pollution or siltation of the waterway, or (ii) an adverse effect on surrounding uses, marine habitat, wetland areas, flora or fauna habitats, or (iii) an adverse effect on drainage patterns, and (d) will not cause congestion of, or generate conflicts between, people using open space areas or the waterway, and (e) will not compromise opportunities for the provision of continuous public access along the foreshore and to the waterway, and (f) will maintain any historic, scientific, cultural, social, archaeological, architectural, natural or aesthetic significance of the land on which the development is to be carried out and of surrounding land.
5. Finally, for reasons that will become apparent, it is convenient to set out the definitions of the following terms (and accompanying note) adopted by the LEP: cl 1.4 and Dictionary: flood planning level means the level of a 1:100 ARI (average recurrent interval) flood event plus 0.5 metre freeboard, or other freeboard as determined by any floodplain risk management plan adopted by the Council in accordance with the Floodplain Development Manual. flood prone land is land susceptible to flooding by the largest flood that could conceivably occur at a particular location estimated from the probable maximum precipitation. Floodplain Development Manual means the Floodplain Development Manual (ISBN 0 7347 5476 0) published by the NSW Government in April 2005. floodway has the same meaning as floodway area has in the Floodplain Development Manual (ISBN 0 7347 5476 0), published by the New South Wales Government in 2005. Note. The term means those areas of the floodplain where a significant discharge of water occurs during floods. They are often aligned with naturally defined channels. Floodways are areas that, even if only partially blocked, would cause a significant redistribution of flood flow, or a significant increase in flood levels.

Liverpool Development Control Plan 2008

1. The objectives of the Liverpool Development Control Plan 2008 ('DCP') are delineated under Part 1.2. Relevantly, objective (d) of the DCP is "[t]o protect personal safety and to minimise the risk of damage to areas subject to environmental hazards, particularly flooding". More specifically, section 9 of Part 1 of the DCP provides additional specific objectives to guide the regulation of development at or below the flood planning level including, for example, the objective of permitting "development with a lower sensitivity to the flood hazard to be located within the floodplain, subject to appropriate design and siting controls": objective (g).
2. In order to realise these objectives, sections 9.4, 9.5 and 9.6 of Part 1 comprise the operative machinery under the DCP that regulates development at or below the flood planning level. These sections provide specific controls for particular floodplains in the local government area and one floodway, the Moorebank Floodway. With respect to these proceedings - where the Land is located within the Moorebank Floodway and, therefore, the Moorebank Voluntary Acquisition Scheme area - the relevant DCP control is found in section 9.6. This section provides: 9.6 Controls Applicable to the Moorebank Floodway 1. Notwithstanding any other provision where a property is identified within the Moorebank Voluntary Acquisition Scheme area, Council will only consent to further development as noted in Table 7. Table 7 Controls applicable to the Moorebank Floodway Control Development Development is only for minor works such as small awnings over existing first floor balconies or in-ground swimming pools The capital investment shall not materially increase the acquisition costs of the property.

Council will not permit any type of development which would be inconsistent with the objective of discouraging further development in areas of high risk and with Council's commitment to the Moorebank Voluntary Acquisition Scheme.

1. As will become apparent, it is also convenient to set out here that part of section 9.3 which sets out the parameters for a land use risk category known as "concessional development": Concessional Development 1. In the case of residential development: - An addition or alteration to an existing dwelling of not more than 30sqm or 10% (whichever is the lesser) of the habitable floor area which existed at 1 December 1987. (The date of adoption of the first Liverpool City Council Floodplain Management Plan); or - The construction of an outbuilding with a maximum floor area of 20sqm (or 50sqm for land zoned for non urban purposes); or - Rebuilding dwellings in a manner which substantially reduces the flood risk having regard to property damage and personal safety when compared to the existing building. 2. In the case of other development: - An addition to existing premises of not more than 10% of the floor area which existed at 1 December 1987. (The date of adoption of the first Liverpool City Council Floodplain Management Plan); or - Rebuilding of a development in a manner which substantially reduces the flood risk having regard to property damage and personal safety when compared to the existing development; or - A change of use, which does not increase flood risk having regard to property damage and personal safety; or - Subdivision that does not involve the creation of new allotments with potential for further development.

Liverpool Council's claim that the First Respondent has breached s 76A(1) of the EPA Act

1. Liverpool Council submitted that it has to establish the following three matters in order to satisfy the Court that the First Respondent has breached s 76A(1) of the EPA Act: (1) that the construction of the extension, 'sea wall', and front fence by the First Respondent constituted the carrying out of development under the EPA Act; (2) that the carrying out of this development required development consent; and (3) that prior development consent was not obtained.
2. Liverpool Council contended that the breach of s 76A(1) by the First Respondent is clearly established because the "Respondents have admitted to erecting the structures, it is clear that the structures are for the purpose of a dwelling house, and no consent has been obtained". Relevantly, Liverpool Council asserted that because the Land is zoned as R2 - Low Density Residential land under the LEP, development for the purpose of dwelling houses is only permissible with consent. Liverpool Council said that the First Respondent has admitted to carrying out the relevant development without first obtaining development consent and takes full responsibility for so doing: citing the First Respondent's Points of Defence at [3]-[4]; the First Respondent's affidavit filed on 10 March 2017 at [4]; and Exhibit B-2, pp 405-420.
3. On the basis that the alleged breach is clearly established, Liverpool Council submitted that the Court should make the declaration sought in the Summons.

The First Respondent's acceptance that he has contravened the law

1. The First Respondent did not deny Liverpool Council's claim that he breached section 76A(1) of the EPA Act by constructing the extension, sea wall, and front fence on the Land without first obtaining the requisite development consent. Rather, Mr Tirnova admitted that he carried out the relevant development without first obtaining development consent and confirmed that he takes full responsibility for so doing.
2. In this respect, the following statements from Mr Tirnova's Points of Defence filed on 10 March 2017 are relevant: [3] During 2010 we decided to extend the dwelling to accommodate for a family of 4. Unfortunately we did not submit a development application due to our limited knowledge of the requirements. Further, our neighbour at the time … was also constructing his house and informed us that we did not require any 'permission' to proceed with work. [4] Regrettably we finalised our extension of the existing dwelling and demolished a double garage without engaging the Council. … [18] We have acknowledged that we have done the wrong thing to the Council … [26] We understand, acknowledge and deeply regret our mistake.
3. Similarly, Mr Tirnova stated in his affidavit filed on 10 March 2017 that: "I take full responsibility [for] all unauthorised works carried out".
4. Finally, at the hearing Mr Mehmet Tirnova confirmed to the Court, on behalf of his father, that: So, like I emphasised before, we - we definitely acknowledge that we've - we've done the wrong thing. We didn't follow the correct procedures in regards to constructing an extension to the existing building, to the front fence and also to the wall referred at the back of the property. (Transcript, 8 June 2017, p 20 [38]-[41]).
5. This acknowledgement was reiterated throughout the hearing by Mr Mehmet Tirnova on numerous occasions. (See, eg, Transcript, 8 June 2017, pp 10 and 22 and Transcript, 9 June 2017, pp 32, 33 and 52.)
6. I should also note that the First Respondent did not make any submission that the declaration sought by Liverpool Council (see above) should not be made by the Court. However, that is not to say that it was accepted that the Court should make such a declaration.

Liverpool Council's claim that the extension should be demolished

1. Liverpool Council's primary claim in these proceedings is that the extension should be demolished. In weighing up all of the factors relevant to the exercise of the Court's discretion to grant or withhold relief under s 124 of the EPA Act, Liverpool Council argued that the relevant factors justifying the making of a demolition order outweigh the countervailing factors. Fundamentally, Liverpool Council submitted that the extension "must be removed due to the location of the Land in the high risk floodway of the Georges River and within the Moorebank Voluntary Acquisition Scheme area, and the impacts that arise as a result".
2. Liverpool Council's submissions in support of its claim can be grouped into three main categories: (1) that the extension is materially inconsistent with the applicable planning controls; (2) that the flood related consequences of the extension are unacceptable; and (3) that the refusal of the Court to grant the relief sought would significantly undermine the orderly enforcement of planning law.
3. In making these submissions, it should be noted that Liverpool Council relied upon the principles guiding the exercise of the Court's discretion under s 124 of the EPA Act set out in Warringah Shire Council v Sedevcic (1987) 10 NSWLR 335 at 339-441. Furthermore, Liverpool Council usefully provided the Court with a table of case law concerning matters in which a demolition order was sought in civil enforcement proceedings.

The inconsistency of the extension with the planning controls

1. Liverpool Council contended that the Court should order that the extension be demolished because it is inconsistent with the planning controls that regulate development in the floodway. More specifically, it was asserted that the extension is inconsistent with clauses 7.6, 7.8 and 7.9 of the LEP and section 9.6 of Part 1 of the DCP.
2. In support of this, Liverpool Council relied upon the evidence of its Senior Development Planner, Mr George Nehme. In his affidavit affirmed on 25 May 2017, Mr Nehme stated that "[i]f the Development Application was lodged prior to the unauthorised works being undertaken I would not support the proposal" (Exhibit B-2, p 456). Mr Nehme reasoned that he would not have supported the proposal because of its inconsistency with clauses 7.6, 7.8 and 7.9 of the LEP and section 9.6 of the DCP. Moreover, he considered that a variation to the standards of section 9.6 of Part 1 of the DCP "could not be reasonably justified" because of the inconsistency of the development with the objective of the control to discourage further development in areas of high flood risk.
3. Similarly, the reasons given by Liverpool Council for refusing to approve both the Respondents' building certificate application and development application, which sought to regularise the "rear addition, front fence and sea wall", were that the development was inconsistent with, inter alia, clauses 7.6, 7.8 and 7.9 of the LEP and section 9.6 of Part 1 of the DCP (Exhibit B-1, pp 166-170).
4. With respect to the alleged inconsistency of the extension development with section 9.6, Liverpool Council submitted that it was required, in considering the Respondents' development application, to be flexible in applying the DCP provisions and allow reasonable alternative solutions that achieve the object of those standards: citing s 79C(3A)(b) of the EPA Act. However, Liverpool Council submitted that its discretion in applying the DCP does not extend to permitting a deviation from the DCP that is inconsistent with the objectives of the planning control. Moreover, it was asserted that the provisions of a DCP can restrict or prohibit development that is permissible under the relevant LEP if the development does not meet certain standards: citing Castle Constructions Pty Ltd v North Sydney Council [2007] NSWLEC 459 at [50]-[52].
5. In any event, even if the development complied with section 9.6, Liverpool Council asserted that the development does not - referring to Mr Maruf Hossain's evidence (who is Liverpool Council's Senior Floodplain Management Engineer) - comply with the minimum general development standards applying to high risk, flood prone lands. In particular, Liverpool Council drew attention to the disparity between the constructed minimum floor level of 3.5 metres and the specified minimum of 6.3 metres (which was said to be the 1:100 level, being 5.8 metres plus 0.5 metres freeboard).

The unacceptable flood related consequences of the extension

1. Liverpool Council contended that the flood related impacts of the extension, being on land in the high risk Moorebank Floodway, are unacceptable. Liverpool Council provided five reasons why this is so.
2. First, Liverpool Council claimed that the extension will "alter the flow distributions and velocities in a flood situation and would adversely affect local flood behaviour and impact of adjoining properties". This claim was based on the evidence of Mr Hossain (Exhibit B-2, p 474). In his affidavit affirmed on 25 May 2017, Mr Hossain stated that: The development would potentially adversely affect local flood behaviour and could impact on adjoining properties. However, in order to assess extent of impact of the development on flood behaviour, a detailed flood impact assessment is required using proper hydraulic modelling. The development would alter flow distributions and velocities, and could potentially adversely affect adjoining properties. Proper flood modelling is required to determine extent of impact.
3. Additionally, Liverpool Council relied upon the independent planning development assessment of the Respondents' development application prepared by Urbis Pty Ltd (Exhibit B-1, p 320). In its assessment report, Urbis Pty Ltd concluded - "on the basis of the limited flood analysis submitted with the application, and the expert opinion of Council's flooding engineers" - that the extension is likely to: "adversely affect flood behaviour and increase the potential for flooding to detrimentally affect other development and properties [and] significantly (cumulatively) alter flow distributions and velocities to the detriment of other properties or the environment." Moreover, Urbis Pty Ltd asserted that the extension is likely to "be incompatible with the flow of flood waters and any flood hazard on that floodway".
4. Secondly, Liverpool Council argued that the extension is made up of wood, a non-flood compatible material, and that its capacity to withstand flood forces and debris load is unknown. Consequently, the building may be liable to flood damage and could cause damage to downstream properties. In support of this, Liverpool Council again relied on the evidence of Mr Hossain (Exhibit B-2, pp 474-475). With respect to the capacity of the extension to withstand flood forces, Mr Hossian commented that "[a] certification from an appropriate professional engineer is required to confirm that the structure can withstand flood forces and debris load … including debris and buoyancy up to and including a 1% AEP flood plus half a metre freeboard".
5. Thirdly, and similarly, Liverpool Council endorsed Mr Hossain's evidence that the extension "does not satisfy important design principles in terms of the building form, materials selection, structural adequacy, adopted floor levels and flood safety [and] would result in increased population on high risk flood zone" (Exhibit B-2, p 475). With respect to this last assertion, Liverpool Council said that this was so because of the two additional bedrooms created by the extension.
6. Fourthly, Liverpool Council also relied upon Mr Hossain's evidence that the property is unsafe for occupation or evacuation because of the high risk posed to the property by the Land's susceptibility to high flood depth and velocity. As such, Mr Hossain said that this "will pose a safety hazard not only to the occupants but emergency personnel involved in emergency flood evacuation" (Exhibit B-2, p 474).
7. Finally, Liverpool Council submitted that it is of some significance that the extension poses these above mentioned public safety risks and does "not have any beneficial effect in the locality".

The orderly enforcement of planning law

1. Liverpool Council emphasised the relevance of principles 4 and 6 in Warringah Shire Council v Sedevcic to the Court's exercise of its discretionary power to grant or withhold relief. In this respect, it was submitted that "there is significant public interest in upholding the integrity of the planning controls in this case". Liverpool Council provided two principle reasons for why this is so.
2. First, Liverpool Council argued that the unauthorised extension sets an undesirable precedent that may encourage other people in the Georges River floodplain to carry out unauthorised development. In fact, Liverpool Council noted that the enforcement of other unauthorised work on properties in the high risk Moorebank Floodway will depend on "the outcome of this decision". Hence, Liverpool Council submitted that "[i]f an exception to compliance with the EPA Act is created here, it will set a concerning precedent in the floodway for other unauthorised development in circumstances where the result would be a risk to the safety of occupants of dwellings, emergency personnel and to public and private property". Additionally, such a precedent would create a "disincentive for people to sell" and, therefore, undermine the Moorebank Voluntary Acquisition Scheme (Transcript, 14 June 2017, p 32).
3. Relevant to this submission is Liverpool Council's related proposition that the unauthorised extension has resulted in a substantial enlargement of the dwelling, rather than constituting a purely technical breach. More specifically, Liverpool Council estimated, on Mr Hossain's evidence, that the development "involved an extension of approximately 115% of the original dwelling" (Exhibit B-2, p 471).
4. Secondly, Liverpool Council submitted that the potential public liability implications of not taking enforcement action against this unauthorised development within the Moorebank Voluntary Acquisition Scheme area were of particular concern in commencing these proceedings. This was said to be because Liverpool Council "must demonstrate that it has acted in good faith to secure indemnity under s 733 of the Local Government Act 1993".
5. Additionally, Liverpool Council submitted that the relevant body of case law, concerning the exercise of the Court's discretion under s 124 to order or not order the demolition of unlawful development, demonstrates that the Court normally does grant such an order to a local council. This was said to be because the withholding of such relief would normally be inconsistent with the public interest (by undermining the orderly development and use of the environment): cf Warringah Shire Council v Sedevcic at 339.
6. In support of this submission, Liverpool Council drew particular attention to the decisions of Fairfield City Council v Ly [2008] NSWLEC 322; Barton v Orange City Council [2008] NSWLEC 104; Barton v Orange City Council (No 2) [2008] NSWLEC 123 and Shoalhaven City Council v Ellis [2012] NSWLEC 225. In response to the competing table of case law provided by the Respondents, Liverpool Council argued that these cases were of limited assistance because they were Class 1 proceedings: citing Sutherland Shire Council v Nader [2007] NSWLEC 363 at [21].

The Respondents' claim that the extension should not be demolished

1. The Respondents argued that Liverpool Council should not be granted a Court order that the extension be demolished. Rather, the Respondents contended that the Court should exercise its discretion not to make such an order despite the fact that this extension was erected without development consent and, therefore, unlawfully. In essence, the Respondents advanced their case on three fronts.
2. First, the Respondents alleged that Liverpool Council has engaged in conduct which disentitles it from the relief sought, namely: it has inconsistently applied the applicable flood prone lands planning regime; it has established a planning regime and administered this regime in a way that is capricious and unfair; and it has been unacceptably tardy in delaying to take action with respect to the development, which the Respondents have relied upon to their detriment.
3. Secondly, the Respondents challenged the credibility of Liverpool Council's justification for refusing to allow the extension to remain and contended that the extension is sufficiently safe with respect to flood risk. In this respect, the Respondents suggested that Liverpool Council had engaged in a pattern of conduct obstructing the Respondents from prospectively curing the unlawfulness of the development.
4. Thirdly, the Respondents submitted to the Court that the civil enforcement action of Liverpool Council has had very significant emotional, health and financial consequences for their family.

Disentitling conduct - Inconsistency

1. The most significant plank in the Respondents' disentitling conduct argument is that Liverpool Council has both devised a planning regime that is internally inconsistent and has also inconsistently applied this regime (Transcript, 8 June 2017, p 20).

Inconsistent application

1. With respect to Liverpool Council's application of the relevant regime, the Respondents alleged that development consent has been granted to carry out development on numerous flood affected properties within the vicinity of the Tirnova land (Transcript, 8 June 2017, p 21). On this basis, the Respondents contended that the refusal of their development consent and building application by Liverpool Council (and the subsequent civil enforcement action) is inconsistent with the conduct of Liverpool Council in approving other development in the surrounding area. The Respondents asserted that Liverpool Council should apply the applicable planning regime relating to flood prone land consistently (Transcript, 8 June 2017, p 21).
2. As evidence of this claim, the Respondents relied upon the following development approvals, which were identified by the Respondents' town planner consultant GAT and Associates (Exhibit B-2, pp 330-333): ● 116 Newbridge Road: 1981 building application approval of dwelling for land set to be included in the planned Moorebank Voluntary Acquisition Scheme area; 1987 approval of garage in the extant Moorebank Voluntary Acquisition Scheme area; and 2000 development approval for a significant addition to the existing dwelling; ● 7 - 11 Newbridge Road: 2009 approval of a significant extension to an approved petrol station; ● 36 - 38 Rickard Road: 1988 development approval for a significant first floor addition; and ● 116A Newbridge Road: 2013 complying development certificate for alterations and additions to a dwelling house.
3. In relation to the 2009 approval of the petrol station extension, the Respondents submitted that this development could have a considerable impact on the environment and the public if it was to be inundated during a flood (Transcript, 9 June 2017, pp 21 and 28). The Respondent submitted that it is incomprehensible that this petrol station could be approved, but not their dwelling house extension, when the petrol station would cause considerably more environmental damage in the event of a flood (Transcript, 9 June 2017, p 32).
4. For the same purpose, the Respondents also relied on the summary of relevant development approvals provided to Liverpool Council by its officers in a report in 2014 (Exhibit B-2, pp 457-466). More specifically, the Respondents relied upon the following development approvals: • 116 Newbridge Road: The Respondents submitted that the report corroborates the information set out above relating to 116 Newbridge Road; • 116A Newbridge Road: 1989 development consent granted for the erection of a double garage despite recommendation for refusal on flooding grounds and a 2013 complying development certificate issued (by a private certifying authority) for alterations and additions to a dwelling house; • 7 - 11 Newbridge Road: The Respondents submitted that the report corroborates the information set out above relating to 7 - 11 Newbridge Road; and • 90 Newbridge Road: 2012 development consent granted for the demolition of an existing verandah and its substitution with a new verandah.
5. It should also be noted that the Respondents disputed the conclusion of this report that "…it is noted that during the last five years, the only development approved by Council within the Moorebank Floodway is the commercial development at No. 7-11 Newbridge Road, which is contrary to the above named controls": citing the 2013 grant of a complying development certificate for 116A Newbridge Road.
6. Finally, the Respondents also argued that various developments on the Georges River proximate to the Land, but beyond the Moorebank Voluntary Acquisition Scheme area, demonstrate the inconsistency of the application of the Liverpool Council flood prone land planning regime. In particular, the Respondents referred to what it called the "Flower Power" development and the Moorebank Marina proposals.
7. I interpose here to note that, with respect to the former development, Mr Nehme confirmed at the hearing of these proceedings that the only approved development on the Flower Power site is that of bulk earthworks to elevate the land platform (Transcript, 9 June 2017, pp 11-12 and 13). Furthermore, Mr Nehme speculated that a development application for residential development relating to this site might be forthcoming (Transcript, 9 June 2017, pp 11-12). It is also useful to set out a short passage of Mr Hossain's evidence relating to the Flower Power development: HAMMOND: Your Honour, there [are] also some things that have been said about Flower Power so I think we need to do that as well. WITNESS: This Flower Power, your Honour, as I said, this is the river boundary and this development, because it is quite a lot of flood depth and some areas are almost four metres deep and this developer is required to keep a 20-metre buffer, which is the riparian corridor, and they bettered that, filled that land to make it flood free. So what is the work going on at the time we have seen, so they're filling the land to make it above hundred-year flood zone. So whilst the land is filled-- M TIRNOVA: Isn't that going to impact the behaviour of - if the flood comes into other properties? WITNESS: So that land will be flood free and to mitigate the impact of that filling, the developer is going to excavate that area, lower that area, so that there is no impact on the flooding and they have demonstrated through flood modelling that there is no adverse impact resulting from this filling. HIS HONOUR Q. Because they are filling these portions of the land they want to have raised above the flood levels - A. Yes. Q. --and they are leaving a channel for water to flow around behind. A. Yes: yes. Q. And you're saying that has been before the council with engineering evidence to indicate that's how it works? A. Yes; through flood modelling, they did flood modelling. M TIRNOVA: Can I just say this. There's properties on this side of that road..(not transcribable)..so that's the high-risk zone so if the water was pushed against that, wouldn't that adversely impact those houses over there? WITNESS: They have did that. This is the side. HAMMOND Q. Yes, we're looking here. A. Yes, so that is the side they'll be excavating and to mitigate the adverse impact of that filling. So it is a flood storage area; if you lose some because of filling you do balance cut and fill, compensatory excavation, and some mitigation works and demonstrate that there is no properties adversely affected. So these property, as you can see, their assessment is based on a hundred-year flood. In a hundred-year flood they're about 3.5 metre height; up to the ceiling of this house, this room, there'll be water. So if there is a 10‑millimetre increase, that won't - that is the accuracy of the model; so 10‑millimetre that is acceptable in the industry. But in terms of three and a half metre, if there is a minor change that won't actually - you would not see that in fact and they have actually demonstrated that there is no impact, that is the assessment they have done… (Transcript, 9 June 2017, pp 63-64).
8. With respect to the Moorebank Marina development, the Respondents admitted into evidence (Exhibit 3) a newspaper article briefly detailing the approval of a major marina in Moorebank, on the banks of the Georges River: "Joint Regional Planning Panel approves Moorebank Marina", Liverpool City Champion (6 October 2016). Although Mr Hossain's evidence as to the nature of the marina development was quite confusing, Mr Hossain ultimately appeared to confirm that the approved marina development is predominantly for commercial, and not residential, purposes (Transcript, 9 June 2017, p 59).
9. Again, it is useful to set out a short passage of Mr Hossain's evidence relating to the Moorebank Marina development: HAMMOND Q. Yes, so this the marina development. A. Yes. … Q. So this development here, which is a commercial development - A. Commercial development, yes. Q. --will be in the- A. Yes, there is filling on that side and they have actually excavated in the marina area, to compensate that..(not transcribable)..so that there is no adverse impact and they have demonstrated through flood modelling there is no impact; and the other aspect of this development they have got flood-free access in a hundred years, people can actually leave the site without any assistance. Q. Can you show us that on the map, where, how that's going to work? A. So there will be a road and there will be a bridge across there which is hundred year flood free. You can see on the other side of that, this is actually a channel so on the other side, your Honour, council will be constructing a bridge. HIS HONOUR Q. But that's also a high flood risk area, right - A. Yes, exactly. HAMMOND Q. So the bridge is being constructed over that? A. Over that, there's a bridge. So these people, these houses, would have a flood-free access and they're itself not affected by flooding, they're going to stay there as long as - until a PMF flood occurs. HIS HONOUR Q. So this area, this marina, is being raised? A. This is already high land. (Transcript, 9 June 2017, p 60).
10. In this context, where development consent has been granted for the Flower Power development and Moorebank Marina (which are both located proximate to the Tirnova land and within the Georges River floodplain), the Respondents argued that these developments demonstrate that the planning regime has not been applied consistently.
11. The Respondents submitted that, despite their development application and building certificate application being refused, the considerably larger Flower Power and Moorebank Marina developments have been subsequently approved on land in a proximate flood prone area. In relation to the Flower Power development, Mr Mehmet Tirnova said: So, my - my point is, there, that, yes, we are in a high risk flood zone, however, further down the road is also another high risk flood zone but the council has provided approvals - will - will be providing approval over there which is - which is inconsistent with - with the policy and it's been unfairly applied to us, despite the fact that they've approved other properties and set a precedent, as we've mentioned earlier, but has not applied that precedent to us, which is, I'd say, just unfair for us. (Transcript, 9 June 2017, p 29).
12. Moreover, the Respondents suggested that the approval of these developments could have considerably more significant flood related consequences. For example, the Respondents alleged that the site of the Flower Power development is located in the "worst flood impacted area", "in the path of a strong floodway": citing Public Works Department, "Moorebank - Milperra Floodway Study" (May 1983) (Exhibit B-2, p 499) (Transcript, 9 June 2017, pp 28-29).
13. It should also be noted that the Respondents submitted that, although not within Liverpool Council's jurisdiction, the regulation of the flood prone land surrounding their property has not been applied consistently across adjoining local government areas. In particular, the Respondents said that this was evidenced by the existence of residential development on land adjacent to the Georges River under the jurisdiction of the City of Canterbury Bankstown Council (Transcript, 9 June 2017, p 32).

Internal inconsistency

1. With respect to the alleged internal inconsistency of the applicable planning control, the Respondents argued that section 9.6 of Part 1 of the DCP is internally inconsistent. This is because, according to the Respondents, the section simultaneously prohibits development which would materially increase the acquisition costs of a property in the Moorebank Voluntary Acquisition Scheme area whilst permitting the construction of in-ground swimming pools (which might have this effect) (Transcript, 8 June 2017, p 21; Transcript, 9 June 2017, p 16 and Transcript, 14 June 2017, p 14). In effect, it was argued that a swimming pool would add to the capital value of a property and thereby increase the acquisition costs of that property.
2. Moreover, the Respondents suggested that section 9.6 of Part 1 was internally inconsistent with one of the nominated objectives of section 9 of Part 1 of the DCP. The Respondents juxtaposed section 9.6 with objective (g) to Part 9 to submit that whilst the former allegedly sterilises the development potential of land in the Moorebank Voluntary Acquisition Scheme area, the latter states that an objective of the Part is "[t]o permit development with a lower sensitivity to the flood hazard to be located within the floodplain, subject to appropriate design and siting controls" (Transcript, 9 June 2017, pp 15-17).
3. Similarly, the Respondents suggested that section 9.6 is inconsistent with the Flood Development Manual, which is referred to in the LEP. This was said to be because this manual is predicated on the "important fact" that "flood prone land is a valuable resource that should not be sterilised by unnecessarily precluding its development": citing Exhibit B-2, p 535 (Transcript, 9 June 2017, pp 16-17). Indeed, the Respondents noted that the policy would ostensibly prevent Liverpool Council from granting consent to replace an existing building if it were to be destroyed by any disaster (Transcript, 14 June 2017, p 13).
4. Finally, the Respondents also indicated that section 9.6 is inconsistent with section 9.3 in that the latter section recognises a land use risk category of development, "concessional development", that is not recognised in section 9.6. This category of concessional development was (presumably) seen by the Respondents to offer greater scope for development than section 9.6 (see above).

Disentitling conduct - Unfairness

1. Further to the unfairness said to be occasioned by the alleged inconsistency of Liverpool Council in creating and applying its planning law regime, the Respondents argued that the conduct of Liverpool Council has also resulted in unfairness in two other respects.
2. First, the Respondents submitted that Liverpool Council's conduct in sterilising development in the Moorebank Voluntary Acquisition Scheme area yet temporarily suspending the Moorebank Voluntary Acquisition Scheme, due to a lack of funding, was unfair (Transcript, 9 June 2017, p 17). The Respondents said that the evidence shows that Liverpool Council has flexibly applied the relevant flood planning controls with respect to major developments in the vicinity of the Land whilst inflexible sterilising development in the Moorebank Voluntary Acquisition Scheme area. (Transcript, 14 June 2017, pp 10-11). Moreover, the Respondents argued that Liverpool Council had a conflict of interest in simultaneously devising and applying planning controls with the effect of freezing the value of land in the Moorebank Voluntary Acquisition Scheme area, whilst being responsible for this scheme to purchase land affected by these planning controls.
3. Secondly, the Respondents alleged that there was a conflict of interest in making enforcement orders relating to the development on their land whilst simultaneously making offers to acquire such land (Transcript, 8 June 2017, p 25 and 9 June 2017, p 36). Similarly, the Respondents suggested that it was a conflict of interest that Liverpool Council commenced civil enforcement proceedings with respect to the unlawful development when the Respondents still had an extant right to appeal the decision to refuse to grant a building certificate (Transcript, 8 June 2017, p 24 and 9 June 2017, p 34).

Disentitling conduct - delay

1. The Respondents alleged that Liverpool Council has engaged in unacceptable delay with respect to the civil enforcement process that it undertook. For example, the Respondents alleged that the failure of Liverpool Council to decide on their building certificate application for three years was demonstrative of "the failure of the process" (Transcript, 9 June 2017, pp 34 and 54).
2. Additionally, the Respondents suggested that Liverpool Council's internal file notes relating to the relevant development shows that Liverpool Council did not take the matter seriously because various council officers delayed in taking action and simply passed the matter onto another council officer: citing Exhibit B-1, pp 202-203 (Transcript, 8 June 2017, p 47). Ultimately, the Respondents submitted that "[w]e would not be in this situation today, your Honour, if procedural fairness was given to us. If the emails going between each other, throwing it to the next officer, the next officer obviously proves that the council is unsure what they should be doing as well, too, your Honour" (Transcript, 9 June 2017, p 52).

The flood risk and flood impact of the extension

1. The Respondents submitted that they have provided sufficient evidence to demonstrate to Liverpool Council that the extension does not create an unacceptable increase in the flood related risks of occupying the Land. In particular, the Respondents argued that the extension has been shown to be sufficiently structurally sound despite the flood risk and does not pose an unacceptable risk to the public or environment. Thus, the Respondents suggested that Liverpool Council's refusal to grant development consent or the building certificate has unreasonably prevented them from prospectively curing the unlawfulness of the development (Transcript, 9 June 2017, p 52).
2. The Respondents prefaced their submissions in this respect by claiming that the extension to the existing dwelling house only occupies an "extremely small" area, said to be approximately 50 m2 (Transcript, 8 June 2017, p 20). Consequently, the Respondents said that the potential impact of the extension on the flow of flood water will likely be "very minimal" (Transcript, 8 June 2017, p 21). In support of this, the Respondents referred to hydraulic modelling reports of WMAwater, which were submitted to Liverpool Council in support of their development application and building certificate application (Exhibit B-1, pp 297-299; pp 306-309 and 329). Relevantly, the conclusion of WMAwater, based on a desktop analysis, is that the relevant development "will not exacerbate existing flood levels nor flood risk" (Exhibit B-1, p 299). With respect to the flood levels, WMAwater reasoned that this was so because: • Renovation works haven't added to the width of the residence relative to the direction of flood flow in a major flood event such as the 1% AEP event. The bulk of the renovation work which is an ~ 50 m2 extension of the main house, is in the lee of the original structure, with no additional width. No flood storage is lost either as during a flood it is expected that the house will be entirely inundated; • Renovation works have in fact removed a shed (slab on ground and of fibro construction) meaning there is more flow area through the property than previously; and • In regard to the brick wall at the front of the property, for events that achieve flood levels closer to the top level of the brick wall, impacts on flood behaviour will occur. However impacts on the 1% AEP event are unlikely as during this event the wall is being overtopped by ~ 2.5 m. (Exhibit B-1, p 299).
3. This reasoning was predicated on the finding that "during a flood, flow approaches from … the front of the residence", rather than from the banks of the river (Exhibit B-1, p 299). For this reason, the Respondents asserted that any debris from the extension would not pose a public hazard because it would flow towards the river rather than the road (Transcript, 9 June 2017, p 19). This finding was said to be corroborated by the report of the (former) Public Works Department entitled "Moorebank - Milperra Floodway Study" (May 1983) (Exhibit B-2, p 525) (Transcript, 9 June 2017, pp 22-23). Notwithstanding this, the Respondents denied that the extension was not structurally sound to withstand flooding: citing the evidence of an engineer (Exhibit 5). With respect to flood risk, WMAwater justified its conclusion on the basis that "floor levels remain unchanged as does the number of residents" (Exhibit B-1, p 297).
4. In this context, the Respondents submitted that their property has been demonstrated to be safe in recent flooding events. In particular, the Respondents claimed that when a flood occurred in June 2016, the 7-8 hour window in which they were able to evacuate was ample to safely do so (Transcript, 8 June 2017, p 21 and 9 June 2017, pp 38-39). In this respect, the Respondents emphasised that the State Emergency Service has well developed evacuation alert strategies (Transcript, 14 June 2017, p 11). Indeed, the Respondents suggested that the evidence of Mr Hossain confirmed that the safe evacuation of the property is possible (Transcript, 9 June 2017, p 17). Whilst the Respondents conceded that this is a risk, they argued that it is a risk of life that is comparable to many other risks in life that people are permitted to take (Transcript, 9 June 2017, p 39). Additionally, the Respondents submitted that flooding has become less severe since 1987 due to the opening of the Chipping Norton Lakes, which was said to have increased flood storage on the Georges River (Transcript, 8 June 2017, 21).
5. The Respondents also argued that Liverpool Council could more beneficially focus on improving evacuation plans and systems rather than persisting with the (allegedly ineffective) Moorebank Voluntary Acquisition Scheme (Transcript, 9 June 2017, p 39). In fact, the Respondents claimed that the Mayor of Liverpool Council shares this view, as evidenced by the following statement attributed to the Mayor on 30 April 2013 in the Liverpool City Champion: "It will cost ratepayers more than $30 million to buy those properties back at today's value, and it could take another 60 years before all of those properties can be acquired" (Exhibit 3). The Liverpool City Champion paraphrased the Mayor as then commenting that "…instead of preparing a long-term budget to buy back the properties, Liverpool Council will meet with the local police and emergency services to develop contingency plans" (Exhibit 3).
6. Finally, the Respondents submitted that even if the demolition of the extension occurs, the flood risk will remain the same because they will continue to live on the property, albeit in uncomfortable circumstances (Transcript, 9 June 2017, p 39). In the Respondents' words "…my concern is [that] if we were to knock down this extension, yes we will be compressed into a two bedroom house but my concern is are we actually solving the problem? There [are] still going to be humans living at the front of that house" (Transcript 14 June 2017, p 11).

The motivation for building the extension

1. The Respondents submitted that it is a relevant consideration that the extension was not built for financial gain: "…it's not about the value of the property to us. It's not monetary … we need that house. We need those bedrooms to continue to live our lives" (Transcript 14 June 2017, p 16).

The consequences of demolition

1. The Respondents prefaced their submissions as to the consequences of a demolition order by outlining what they said they had already suffered as a result of the unlawful development. The Respondents submitted that the ongoing stress of the matter has had significant impacts on the First Respondent's health and wellbeing (Points of Defence at [2]).
2. Similarly, the Second Respondent submitted that her emotional state has deteriorated to the point that she was compelled to resign from her job. Moreover, the Respondents submitted that the financial costs of lodging and seeing through the development application and building certificate application and paying to build the extension have been difficult to bear (Transcript, 9 June 2017, pp 52-53). The Respondents also said that it is of some significance that Liverpool Council unnecessarily advised them to lodge a development application (Transcript, 14 June 2016, p 5).
3. The Respondents claimed that a demolition order would impose a very significant burden upon them. In particular, it was said that the impacts of ongoing demolition whilst the Respondents occupy the Land would be considerable, especially in circumstances where the First and Second Respondents' infant grandson lives at the Tirnova land. Indeed, the Second Respondent submitted that these impacts would be more serious than a 1-in-100 year flood. The Respondents submitted that considerable financial hardship would be occasioned if they were required to pay to comply with a demolition order because of the (involuntary) unemployment of the First and Second Respondents and the reduced capacity of the First Respondent to carry out such works.
4. Additionally, the Respondents claimed that it would be a significant hardship for the Respondents (including the Third Respondent's husband and child), after the demolition, to be compressed into a two bedroom dwelling. Thus, the Respondents claimed that the "two extra bedrooms in the house [are] vital for us to continue our [lives] comfortably" (Transcript, 14 June 2017, p 13).

Liverpool Council's rebuttal to the Respondents' case on discretion

Delay

1. Liverpool Council characterised the Respondents' argument of delay by Liverpool Council as focusing upon the delay in determining the Respondents' building certificate application. In contrast, Liverpool Council submitted that the relevant delay was in taking enforcement action against the Respondents. In response to the Respondents' argument, Liverpool Council provided the following chronology of events in explanation for the delay: • The works first came to Liverpool Council's attention in April 2011; • Further inspections in May 2013, and Liverpool Council then acted quickly issuing orders in June 2013; • Orders revoked in September 2013 to permit [the development application] and [the building certificate] to be assessed and determined; • Refusal of [the development application] in April 2014; • Refusal of [the building certificate application in] July 2016, there is no evidence before the Court explaining the delay, but the Court might draw the inference that Liverpool Council's suspension of the [Moorebank Voluntary Acquisition Scheme] from 24 April 2013 to 28 October 2015 might explain lack of progress with assessment of the [the building certificate] application. • Shortly after July 2016, Liverpool Council took action to commence these proceedings, issuing letters of demand in September 2016.
2. In this context, Liverpool Council submitted that there was no unreasonable delay in taking enforcement action and bringing these proceedings. Rather, the evidence was said to demonstrate that Liverpool Council had issued enforcement orders relatively soon after discovering the unauthorised development, properly revoked those orders to assess the Respondents' development application and building certificate application, and commenced proceedings soon after the decision to refuse the building certificate application.
3. It should also be noted that Liverpool Council accepted that a consequence of delay in taking enforcement action is that it can cause harm to the subject of that enforcement action (Transcript, 14 June 2017, pp 35-36).

Inconsistency

1. Liverpool Council noted the Respondents' claim that Liverpool Council has acted inconsistently in implementing its planning controls relating to other properties in the high risk floodway and the Moorebank Voluntary Acquisition Scheme area and, in so doing, set a poor precedent.
2. In response to this claim, Liverpool Council conceded that it had approved development within the Moorebank Voluntary Acquisition Scheme area and that the 2009 approval of the petrol station commercial development at 7-11 Newbridge Road was inconsistent with the DCP (and contrary to the advice of Liverpool Council's flood engineer). However, it argued that the residential development applications approved within this area has generally been consistent with the DCP: citing a Liverpool Council report on other approvals in the Moorebank Voluntary Acquisition Scheme area (Exhibit B-2, p 457).
3. In fact, Liverpool Council asserted that the only residential development approvals granted in this area since the commencement of the DCP in 2008 were for the change of use of 5 Newbridge Road, the reconstruction of an existing verandah, and the demolition of a house. Liverpool Council submitted that "[t]hese are all minor developments that are consistent with the objective of the DCP".
4. With respect to approved development applications outside of the Moorebank Voluntary Acquisition Scheme area, Liverpool Council said that the Court should not place any weight on the approval of the so-called Marina and Flower Power developments. First, Liverpool Council noted that these developments had only been raised by the Respondents at the hearing and that there is inadequate evidence before the Court as to the relevant details of these developments, their development consents, Liverpool Council's development assessment, and the associated flood-related issues. Moreover, Liverpool Council noted that the Respondents put no such evidence before the Court. Hence, Liverpool Council claimed that it was prejudiced due to it not being afforded adequate time to properly address this evidence.
5. Secondly, these developments were said to be of little or no relevance to these proceedings because they are beyond the Moorebank Voluntary Acquisition Scheme area and, therefore, section 9.6 of Part 1 of the DCP does not apply. Moreover, on the available evidence provided by Mr Hossain, Liverpool Council submitted that the two developments are not wholly located within the high flood risk zone and have particular design features, including compensatory engineering works, which reduce their flood risk.
6. In addition to this allegation of inconsistency, Liverpool Council also sought to rebut the Respondents' similar argument that section 9.6 is internally inconsistent because it allegedly prohibits development that would increase the acquisition costs of the property, yet permits in-ground swimming pools (which might have this consequence). To this end, Liverpool Council emphasised that section 9.6 only permits development that does not "materially increase the acquisition costs of the property".
7. Hence, the fact that the section contemplates the approval of small awnings or in-ground swimming pools does not, so Liverpool Council submitted, conflict with the fundamental prohibition of development that does "materially increase the acquisition costs of the property". Rather, awnings and in-ground swimming pools were said to be examples of minor types of development that would not materially increase the acquisition costs of a property nor interfere with the path and velocity of floodwaters. Liverpool Council suggested that such development would normally be consistent with the objectives of section 9.6.
8. Similarly, but more generally, Liverpool Council denied the Respondents' allegation that the applicable planning controls and the Moorebank Voluntary Acquisition Scheme are unworkable.

Unfairness

1. Liverpool Council denied that the applicable planning controls and the Moorebank Voluntary Acquisition Scheme are unfair. More specifically, Liverpool Council denied the allegation that the Moorebank Voluntary Acquisition Scheme unfairly sterilises development on affected properties without Liverpool Council having the money (or political will) to purchase these properties. Similarly, Liverpool Council submitted that the brief suspension of the scheme was due to a lack of funding rather than a wavering of its commitment to the scheme (Transcript, 14 June 2017, p 31). The Court did note, however, the evidence of Mr Hossain that currently, and in the foreseeable future, there are funds available for only one acquisition per year (Transcript, 9 June 2017, p 69).
2. Additionally, Liverpool Council denied that it had any conflict of interest arising from its role as both the consent authority for development within the Liverpool City Council Local Government Area and the entity responsible under the Moorebank Voluntary Acquisition Scheme for acquiring affected properties.
3. Finally, it was also denied that any representations or promises were made by Liverpool Council to the effect that the Respondents would not have to demolish the extension. This denial was in the context of the Respondents' assertions that certain elected councillors have been supportive of their predicament.

The merits of the extension

1. Liverpool Council challenged the Respondents' proposition that the current dwelling (as enlarged by the extension) is not unacceptably unsafe or detrimental to flood flows. This challenge was prefaced with the submission that it is not the role of the Court in these proceedings to carry out a merit assessment of the extension: citing Sutherland Shire Council v Nader at [21]. In this light, Liverpool Council challenged the Respondents' proposition on the basis that it is predicated on insufficient evidence.
2. First, Liverpool Council adopted Mr Hossain's evidence that the certification relied upon by the Respondents to show that the extension is able to adequately withstand the floodwaters of a 1:100 flood is inadequate because it does not contain the requisite detailed structural analysis (Exhibit B-2, p 471).
3. Secondly, Liverpool Council disputed that any weight could be given to a desktop hydraulic modelling assessment of the potential flood impacts of the extension carried out by WMAwater for the Respondents. In particular, Liverpool Council said that the conclusion of WMAwater - that the extension would not impact upon flood behaviour or increase the overall flood risk - could not safely be relied upon because it was the result of hydraulic modelling that used unacceptable grid spacing (citing the evidence of Mr Hossain: Exhibit B-2, p 473).
4. Thirdly, Liverpool Council reiterated the reasons provided by Mr Hossain (as stated above) as to why the extension is unacceptably unsafe and detrimental to flood flows.
5. Finally, Liverpool Council submitted that no evidence has been provided by the Respondents to make good their claim that the extension has not been damaged or caused damage in the last two significant floods affecting the property. Similarly, it was emphasised that the Respondents did not call any expert witnesses at the hearing in support of its propositions.

Consequences for the Respondents

1. Liverpool Council acknowledged that its attempt to enforce the planning controls with respect to the unauthorised extension has had a significant financial and emotional impact on the Respondents, including incurring significant expenses. Moreover, albeit noting the lack of supporting evidence, it was recognised that a demolition order would cause the Respondents further hardship.
2. To ameliorate this hardship, Ms Hammond, counsel for Liverpool Council, suggested that the Court could provide the Respondents with a reasonable period of time to comply with a demolition order: citing Warringah Shire Council v Sedevcic at 340-341.

Consideration

1. On the basis of both the evidence adduced and submissions received during the hearing, and in the context of the First Respondent conceding that the works were carried out in 2010 without the necessary development consent, I am satisfied that it is appropriate to make the declaration sought by Liverpool Council.
2. A contested determination of the law was never the focus of this case; rather the focus has been to determine appropriate orders and, therefore, the consideration of relevant discretionary factors. There were three offending construction works examined in the course of this case: a "sea wall" abutting the Georges River at the rear of the Land; a masonry fence built on the front boundary of the Land; and a single-storey extension to the existing dwelling. After carefully considering the relevant discretionary factors, the Court has arrived at differing outcomes with respect to each of these unlawful structures.
3. First, although the parties agreed that the oddly-identified "sea wall" abutting the Georges River (far from the sea) was built without the requisite development consent - and, so, is appropriately included in the declaration that I will make - as Liverpool Council is no longer pressing for orders in relation to that wall, my task is a comparatively simpler one with respect to that structure. My understanding of the nature, function and legal status of the sea wall was assisted by my examination of it during the Court view of the Land.
4. In all of the circumstances, I consider that it is an appropriate exercise of my discretion to make no orders concerning the sea wall, thereby allowing it to remain in situ. I make that decision, on the basis of my first-hand observations and the fact that Liverpool Council is not pressing for its removal or even modification, accepting that the sea wall may remain. As the Respondents are entitled to finality with respect to all aspects of these proceedings, and noting that the non-pursuit of an order by Liverpool Council might create intolerable uncertainty, Note 2 (see paragraph 170 below) is made so as to bring finality to the issues relating to the sea wall (in so far as they relate to the works carried out by the First Respondent to date). Necessarily, any future changes in circumstances, such as any alteration in the stability or form of the sea wall, are not the subject of Note 2.
5. Secondly, with respect to the masonry and cement-rendered fence along the frontage of the Land, abutting Newbridge Road, again it was agreed - and the Court accepts on the basis of the evidence - that the fence was built without the requisite development consent and so is appropriately included in the declaration that I will make. Although Liverpool Council initially only sought the demolition of the fence and the removal of the materials from which it was built, a compromise position was reached between the parties in the course of the hearing. Once the masonry fence is removed, it can be replaced by a permeable fence of a design that will perform the function of a boundary fence whilst allowing the unhindered flow of floodwaters. A replacement fence designed like a pool perimeter fence, or a fence with horizontal metal railings, was mooted as being within the range of acceptable options.
6. Accordingly, I have decided to make, in Order 3, concurrent orders relating to the fence: first, that the existing masonry fence be demolished and, secondly, that its constituent materials be removed from the Land. Importantly, should the Respondents lodge a development application with Liverpool Council for a replacement fence for the frontage of the Land - that is designed to be permeable so as to allow the unhindered flow of floodwaters - I formally note, in Note 4 (see paragraph 170 below), that it is to be considered by Liverpool Council in the context of the compromise proposal put to the Court in the course of the hearing.
7. Although the Court cannot direct Liverpool Council to issue the requisite consent for a replacement fence, it follows from Liverpool Council's compromise proposal that the Court would expect Liverpool Council to honour its submission to the Court. In this regard, it is relevant for the Court to note that section 9.6 of the DCP contemplates that development consent may be granted for minor works. The Court considers that a permeable fence, as contemplated by Liverpool Council in its compromise proposal for the front fence, would be an allowable minor works within the terms of section 9.6.
8. Finally, with respect to the extension to the existing dwelling, in circumstances where the First Respondent has (and other Respondents have) conceded that the development occurred without the necessary development consent, and so took place in breach of s 76A(1) of the EPA Act, it falls to the Court to determine what consequential orders (if any) should be made. Given that Liverpool Council has made out its case in these civil enforcement proceedings, the starting presumption is that it is entitled to the relief that it seeks, which includes demolition of the unlawful extension. However, this is a case where a range of contextual considerations are relevant to the exercise of the Court's discretion and should temper the final orders. On the basis of the evidence before it, the Court considers that this is not a straightforward enforcement case simply resolved by standard orders. The personal circumstances of the Respondents and the sorry saga of the events leading up to these proceedings are both unfortunate and relevant to the exercise of the Court's discretion. I shall now explain those circumstances, which I have decided should temper the usual relief which Liverpool Council might otherwise expect.
9. The existing dwelling was and is the Respondents' family home. In the Respondents' oral submissions, the Court heard that the Tirnova parents built the extension to accommodate their domestic needs, essentially to accommodate their daughter, the Third Respondent, her husband and eventually, their baby (born in more recent times). The extension is entirely domestic, comprising a new lounge area, a third bedroom, a fourth bedroom with en suite, a laundry and an alfresco area opening to a small rear deck. (Exhibit B-1, p 311). So there was no commercial element to the extension, it simply being a small-scale domestic addition to an existing modest family home.
10. It was explained to the Court on a number of occasions, in particular by the Second and Third Respondents, often emotionally, that the Respondents have few financial resources. They had not had the funds to commission others to build the unlawful structures; rather, the First Respondent carried out the building works himself, with the occasional assistance of neighbours.
11. Due to health issues, the First Respondent has not had employment in recent years and the Second Respondent had also, prior to the hearing, lost her employment. In these proceedings, it was explained that the Respondents could not afford legal representation; hence, the Second and Third Respondents were self-represented, whilst the First Respondent, for reasons set out above, appointed his son Mehmet Tirnova, a tertiary student, to appear as his agent.
12. The unfortunate circumstances in this case is a sad reflection of the efficacy of the administration of planning processes, which could have been avoided had timely and expeditious action occurred. I am also satisfied that, at the time of the purchase of the Land in 2009, the First Respondent and his family insufficiently understood the implications of the applicable flood mitigation controls and policies. It is trite to observe that professional selling agents and lawyers retained to handle the conveyancing associated with the purchase of land have a duty to ensure that purchasers are made aware of materially relevant controls which might limit their expectations with respect to the use and development of such land.
13. In circumstances where the First Respondent, a Turkish gentleman by ethnicity, had limited English and limited knowledge of Australian law - let alone a working knowledge of this State's planning law and policy - there was a heightened moral duty, if not a heightened legal duty, on both the professional selling agent and the conveyancing lawyer to ensure that the First Respondent and his family were properly informed and forewarned of the serious constraints on development of the Land by reason of the floodway provisions.
14. The Court accepts the Respondents' submissions that, at the time of the purchase of the Land, they were either ignorant, or made insufficiently aware of the ramifications, of the floodway restraints on the property they were purchasing. Contemporaneous evidence of information available to the Respondents at the time of their purchase was scant. Exhibit 4 was a copy of an agent's online sale description of the Land which, although alluringly illustrated with a riverine vista from the Land, was devoid of contextual information relating to its riverbank location. Beyond that document, the Respondents were unable to produce any other documentary evidence contemporary to the purchase. Instead, it was Liverpool Council that was able to produce (late in the course of the hearing after the Court questioned the Respondents on the subject), the s 149 certificate required under the EPA Act.
15. The s 149 certificate (Exhibit D), issued on 22 September 2009 at the time of the Respondents' purchase of the Land, set out the requisite references to the applicable flood provisions (specifically on pg 9, par 5). However, observing the confusion of the Respondents in Court, especially the First Respondent, when Mehmet Tirnova asked the Respondents about the certificate, I am satisfied that they were either unaware of it or had no recollection of it. In the circumstances, the Court was not surprised that it was Liverpool Council that produced a copy of the certificate, rather than the Respondents.
16. As I have observed earlier, I am satisfied, from the evidence and submissions received in the course of the hearing, that the Respondents were inadequately informed and, thereafter, had an insufficient understanding of the requisite controls. The prospects of the First Respondent having the capacity to understand the applicable controls was not only limited by language difficulties, but was arguably exacerbated by ostensibly confusing planning controls, which to a lay reader might appear to be internally inconsistent. I am also satisfied that the Respondents were confused and misled by the apparent inconsistency of neighbours and others in the district carrying out similar building works on other land subject to the same controls and by erroneous advice from a neighbour.
17. There is little doubt that, to a lay person not trained in town planning (especially where the person's first language is not English), there is an arguable, albeit superficial, inconsistency between the LEP and DCP. This is a somewhat unfortunate state-of-affairs as, with an unsophisticated analysis of the interrelationship between the LEP and DCP, there is an apparent representation to the community that the LEP would allow development (with consent), including extensions to dwellings such as the extension constructed by the Respondent. However, in the Moorebank Voluntary Acquisition Scheme area, such development would never be contemplated, save for very minor exceptions, under the DCP. There is some truth to the proposition that, in essence - with the Moorebank Voluntary Acquisition Scheme area retaining its R2 zoning - there is an implied representation to the world-at-large that applications for development of the kind described will be received and considered, whereas, in reality, all applications would likely be refused if involving such development.
18. A critical material aspect of this matter is the intolerable delay of Liverpool Council in enforcing the law which, not surprisingly, left the First Respondent and his family in a state of uncertainty. Relatively soon after the First Respondent commenced his building works on the Land in 2010, a Council officer attended and photographed the premises in April 2011 and observed the works underway. It was not until 25 months later that another officer of Liverpool Council returned to the Land on 17 May 2013 to conduct a further inspection. With the passage of such an extended period, a property owner not versed in the planning or building system might understandably conclude that all was in order to the satisfaction of Liverpool Council. If such a period passed whilst an apparently more knowledgeable neighbour was concurrently assuring the First Respondent that approvals were not required, the mistaken understanding of the true position would have been compounded.
19. There can be no doubt that, had Liverpool Council acted expeditiously in April 2011 soon after the initial inspection of the Land - say by serving a stop-work order, or effectively conversing with the First Respondent and his family - the works in question might have ceased at a relatively inexpensive and reversible stage. Instead, by delaying 25 months, Liverpool Council allowed the works to be completed without appropriate warnings and stood by whilst the extension to the dwelling was occupied by a family who unknowingly had committed a breach of both the building and planning laws whilst expending their scarce funds.
20. It would be consistent with responsible conduct for public authorities, such as municipal councils, to be alert to the danger that inaction in response to a prima facie breach of the law by a citizen might be taken by that citizen as a de facto approval or at least a form of representation by way of acquiescence that all was in order. The avoidance of such situations is necessary. In the multi-cultural society that characterises the modern Australian city, such as Liverpool, there is a heightened duty resting upon the shoulders of those in authority to accommodate the differential understanding of English, as language can present real obstacles in understanding regulatory regimes.
21. Further, given that many of the citizens of our multi-cultural society come from countries with significantly differing legal and political systems, there is at least a moral obligation, which would be strategically sensible to embrace, for authorities to vigilantly go "the extra distance" to ensure that there is an understanding of the regulatory regime that is relevant to a person's actions once it is apparent that an irregularity is occurring. With hindsight, a non-confrontational conversation with the Respondents orchestrated by Liverpool Council back in April 2011, in which obligations and rights were clearly explained, might have obviated the need for the proceedings before the Court today. Unfortunately, this Court does not have the benefit of an H.G. Wells time machine to "turn the clock back".
22. Although the current case is a Class 4 civil enforcement case and so not a criminal prosecution, it is instructive to be reminded of the relevant principles regarding knowledge of the law as examined in the High Court case of Ostrowski v Palmer (2004) 218 CLR 493; [2004] HCA 30. This case was an appeal in relation to a criminal prosecution in Western Australia where the defendant had an honest and reasonable mistaken belief in the existence of an entitlement to fish for rock lobster in a particular area. The defendant's mistaken belief was induced by copies of regulatory material supplied by an officer of the relevant government department - in response to specific inquiries made by the defendant as to where the fishing of rock lobster was permissible. The Court examined the principle that ignorance of the law is no excuse. Chief Justice Gleeson and Justice Kirby, at [1]-[2], held: Professor Glanville Williams said that almost the only knowledge of law that many people possess is the knowledge that ignorance of the law is no excuse when a person is charged with an offence. [Williams, Textbook of Criminal Law, 2nd Ed (1983), p 451] This does not mean that people are presumed to know the law. Such a presumption would be absurd. Rather, it means that, if a person is alleged to have committed an offence, it is both necessary and sufficient for the prosecution to prove the elements of the offence, and it is irrelevant to the question of guilt that the accused person was not aware that those elements constituted an offence. … Ignorance of the legal consequences that flow from the existence of the facts that constitute an offence is ordinarily not a matter of exculpation, although it may be a matter of mitigation, and in some circumstances it may enliven a discretion not to prosecute. In Blackpool Corporation v Locker [[1948] I KB 349 at 361], Scott LJ called the rule that ignorance of the law is no excuse "the working hypothesis on which the rule of law rests in British democracy". His Lordship went on to make the point that the corollary of the rule is that information as to the content of the law should be readily accessible to the public. In a society in which many personal, social and commercial activities are closely regulated, and the schemes of regulation are frequently changed, the detail of regulation may be difficult for citizens and their lawyers to keep up with. These observations expressed by Scott LJ are somewhat apposite to the advisory comments I have made in the previous paragraph.
23. Compounding the initial 25 month delay, there were a number of other extended periods of delay, as described in the chronology set out at paragraph 16 above. Despite the Respondents lodging both a development application (DA) and a building certificate application (BCA) with Liverpool Council on 12 September 2013, within three weeks of the service of the s 121B orders on each of the Respondents, it was not until six months later (on 26 March 2014) that the DA was refused and a further twenty eight months later on (27 July 2016) that the BCA was refused. Within a month of that refusal, a formal interview of the Respondents was conducted by Council officers as a preliminary step to the proceedings now before the Court, which were commenced on 23 December 2016. In all, five years and eight months had passed since Liverpool Council first inspected the Land in April 2011 and took photographs of the initial works.
24. This extended period of deliberation, probably better described as a period of abeyance, cannot, in the Court's opinion, be attributable to delay on the part of the Respondents. Concurrent with or within three months following the lodging of both the DA and BCA, the Respondents had provided a planning report by GAT & Associates and two hydraulic reports by WMAwater. During this extended period, Liverpool Council, inter alia, suspended and then later reinstated the Moorebank Voluntary Acquisition Scheme.
25. The aggregate effect of the unexplained delays, extending well over five years, was to entrench the Respondents' occupancy of the unlawful extension. The degree of disruption to the Respondents' lives (and most probably the cost of redressing the situation) is inevitably and commensurately greater today than would have been the case in early 2011, when the offending development had just commenced.
26. In determining this matter I am guided by the Court of Appeal decision in Warringah Shire Council v Sedevcic, which relevantly examined the discretionary power conferred on the Court by s 124 of the Act. The Court of Appeal confirmed that the discretion under s 124 is wide, as wide as the discretion of the Supreme Court in its equitable jurisdiction. I accept that in determining the appropriate relief there are three flood-related considerations, in particular, which are of considerable importance: (1) the safety and welfare of the public in flood situations must be given great weight; (2) the safety and welfare of the Respondents and other family members occupying the existing dwelling on the Land together with the unlawful extension must also be given objective priority; and (3) the precedent set by my judgment in assessing and determining the most appropriate response to the carrying out of unpermitted works within a designated floodway. Each of these considerations will now be examined.
27. In the course of their submissions, being aware that one of the orders sought by Liverpool Council was for the unlawful extension to be demolished, the Respondents argued that, in the exercise of its discretion, the Court should consider the extension to be so insignificant that there would be minimal likelihood that the extension would materially and detrimentally change the flow of flood waters. In making these submissions, the Respondents relied upon their water consultant's reports (which were placed before Liverpool Council in support of their development application and subsequently placed into evidence before the Court). In WMAwater's analysis dated 14 November 2013 (Exhibit B-1, p 306) the opinion was expressed: "A simple comparison of "base-case" and "developed" scenario flood levels was then carried out. This revealed a maximum impact of 0.003m or 3 millimetres. Accepted convention in NSW is that all flood impacts less than 0.01m are considered to be sub model accuracy and hence negligible". In response, Liverpool Council's flood engineer, Mr Hossain, gave written and oral evidence challenging WMAwater's opinions and approach.
28. The Respondents submitted that their water consultant's opinion regarding the insignificance of their extension should be compared to the likely impact of the relatively larger scale of the service station re-built in 2009 on a site, at 7-11 Newbridge Road, in close proximity to the Land, subject to similar floodway planning controls. Emphasising an apparent inconsistency in approach giving rise to unfairness, Mr Mehmet Tirnova expressed the Respondents' views in the following terms: … what's happened to my Mum and Dad, it's just - it's not right. It's not fair. It's as simple as that. Someone that has enough capital to build a service station as an investment, as a business, was allowed to do all of this, but someone that's living there, just coming there and using it as a place to stay, a place to live, but we can't do that. (Transcript, 9 June 2017, p 33, lines 16-20)
29. Further, also by way of comparison to demonstrate inconsistency, the Respondents directed the Court's attention to the very large residential developments being proposed for sites within the wider neighbourhood known, colloquially, as the Flower Power site and the Moorebank Marina site (see above), both within the same floodway and proximate to the Georges River, which require(d) large earthworks. Liverpool Council, whilst submitting that these sites were not included in the Moorebank Voluntary Acquisition Scheme area, and so were not subject to section 9.6 of the DCP, relied upon the evidence adduced via Mr Hossain regarding these proposed major residential developments.
30. Whilst Mr Hossain's evidence on these other sites was necessarily scant, given that those developments were not before the Court, he indicated that major earthworks to occur at or associated with those sites variously involve the filling of land above the 1:100 flood level, cutting a diversion channel to facilitate floodwater flow, and creating a compensatory floodwater holding basin. As compared to the Respondents' modest site, it was apparent from Mr Hossain that, with larger resources and much larger areas of land, greater opportunities to incorporate modifying engineering works were feasible (at least in the opinion of the authorities) to address the floodway implications of the development.
31. Although the Court understands that there might appear to be an inconsistency in approach, there is a fundamental distinction. The underlying intent of the Moorebank Voluntary Acquisition Scheme area, within which the Land is situated, is to, over time, effect a depopulating of the floodway by acquiring residences. Encouraging the depopulating of the designated areas is obviously aimed at reducing the risk to life, and consequential reduction in associated risks such as loss of property. Section 9.6 of the DCP is consistent with that approach, by which all but minor works are impermissible. The construction of the unlawful extension, which is obviously not minor (noting that it represents a 115% increase on the original dwelling), leads to an entrenchment of the existing residence on the Land. Whereas the Court can accept that the unlawful extension may have negligible impact on the flow of floodwater and so, theoretically, constitutes a negligible increase in risk elsewhere within the floodway, the focus must concurrently be on the safety of those likely to live within the dwelling on the Land (and also on the emergency personnel who must respond to flooding emergencies).
32. In exercising its discretion, the Court considers that it is necessary to have regard to the safety of the Respondents, the broader Tirnova family and their friends and visitors - not just the safety of those who might be hale and hearty, but also the safety of those who may be impaired by age or ill health. The Court was advised that the First Respondent had lost his employment due, in part, to health concerns, the Court is also aware that the Third Respondent has a young baby. Such people are within the more vulnerable category of persons within a community, especially when faced with a flood. The Respondents argued that the alert systems of authorities responding to rapidly rising flood levels, such as the use of text messages to all mobile phones within a risk declared area, had provided sufficient time for the family to evacuate on the last occasion their house on the Land was inundated. However, the Court must determine this case objectively, without placing too much reliance on the subjective experience of the Respondents in the past, which some might observe was due to good fortune.
33. Viewing the flood line on the living room wall of the Respondents' house on the Land (during the Court's view) and examining the photographs of the flooded interior, reminded the Court of the inherently serious risks to the lives of those occupying dwellings in a floodway. The Respondents were fortunate to have been spared worse impacts in the last major flood. In determining the most appropriate outcome in these proceedings, the Court must exercise its discretion in a manner which is mindful of the need to ensure that the Respondents, and other citizens like them, never suffer devastating impacts from a flood. As indicated earlier, it is also relevant to consider the implications for emergency personnel who must respond to flooding emergencies. It is a fair assumption to accept that the greater the number of people left residing in floodway zoned areas, then the greater the risk to emergency response personnel in safeguarding such people.
34. It is also relevant to consider the implications of the extension to the dwelling house remaining on the Land potentially after the Respondents' ownership. First, irrespective of what happens to the unlawful extension, the existing house is likely to remain on the Land for an indeterminate number of years. That existing house, being modest, has a limited accommodation capacity, however, with the unlawful extension, it is far more commodious and is capable of accommodating a larger number of people. It would be uncontroversial to assume that in its more commodious state, the house has more appeal in the market place. It may be that the Respondents are prepared to accept the risk of flood, but this Court must make decisions for the long term.
35. The Respondents may be the current owners and occupiers of their house, but what if they sell and hypothetical new owners take up occupancy in the naïve belief that any floodway risk will be manageable (assuming they are aware of the risk via a s 149 certificate). What if the new owners are even more vulnerable, say senior citizens suffering a higher degree of infirmity. There is no lawful eligibility restriction on purchasers to ensure they are hale and hearty.
36. It is in this context that it is instructive to again focus on the Court of Appeal's words in Warringah Shire Council v Sedevcic at 339(G) that it is "the public interest which exists in the orderly development and use of the environment" (Attorney-General v BP (Australia) Ltd (1964) 83 WN (Pt 1) (NSW) 80 at 87; 12 LGRA 209 at 218) which is expressed by Parliament when it calls for "the enforcement of a public duty imposed by or under an Act of Parliament". So the Court, in identifying the extent of the public interest to be protected: must look to uphold the law as expressed in the EPA Act; should reinforce the relevant planning and environmental controls; should look to safeguard the interests of the community at large; and, honing in on the subject Land, aim to reduce (or at least not increase) risk to current occupants, being the Respondents, and potential future occupants.
37. The Court must also be careful to avoid approaching this case as though it is a Class 1 merits review of the unlawfully constructed extension. Justice Pain clearly confirmed that approach is inappropriate in Sutherland Shire Council v Nader at [21], wherein Her Honour said: The Respondent's solicitors argued that the exercise of the Court's discretion mirrors a Class 1 merit appeal and that I must therefore consider the impact of the unauthorised work in a town planning sense, and submitted there is no impact if such an analysis is undertaken. I have broad discretion as identified in Sedevcic, I do not agree that this Court in Class 4 proceedings should be undertaking a merits assessment as to whether an alternative scheme proposed has town planning merit, however, as it would in Class 1 proceedings where that is the Court's function.
38. Bearing this in mind with respect to the Respondents' house extension, I must be cognisant of the fact that it is an unlawful structure; it is not a hypothetical development proposal which may or may not be refined to render it more acceptable. That being said, the Court has nevertheless approached its discretionary task in determining the final orders mindful that the Respondents suffered a degree of injustice due to the inordinate delay. So, although recognising that the Court's task is not to find a way to retrospectively "approve" the unlawful extension by considering its merits - to be cognisant of the unfortunate circumstances of this case - the Court's orders seek to uphold the rule of law whilst concurrently appropriately softening the impact of those orders on the Respondents. In all the circumstances, I have concluded that rather than accede to Liverpool Council's request in its Summons that I grant an order that requires the First Respondent to demolish the unlawful extension within 90 days of the date of my orders, I shall instead allow a full twelve months within which time the demolition is to occur. This outcome is consistent with the approach Liverpool Council moved to in the course of the hearing, which I earlier noted in paragraph 121.
39. It is clear from the Court of Appeal in Warringah Shire Council v Sedevcic, at 340(C), that if "special" circumstances are established, then a more favourable exercise of discretion may conceivably be secured under s 124. Yet, the Court noted in that decision that there is nothing in the EPA Act by which the discretion is fettered or limited to "special cases". I interpolate the word "special", to advisably mean "exceptional". In this case, the history of the matter does establish exceptional and special circumstances which warrant, in the exercise of its discretion, an effort by the Court to ameliorate the impact of the orders.
40. However, in circumstances where floodway risk management gives rise to serious issues focussing on protecting human lives and the avoidance of extreme property damage, the special circumstances do not go so far as to justify the retention of the unlawful extension and ignoring commensurate risks. This approach clearly finds further support at 340(C) in Warringah Shire Council v Sedevcic, wherein it was held: …[i]f unlawful exceptions and exemptions became a frequent occurrence, condoned by the exercise of the discretion under s 124, the equal and orderly enforcement of the Act could be undermined. A sense of inequity could then be felt by those who complied with the requirements of the Act or who failed to secure the favourable exercise of discretion under s 124.
41. Liverpool Council has stressed to the Court that the precedent-setting implications of this judgment are very real. As Ms Hammond, counsel for Liverpool Council, stated at paragraph 39 of her closing submissions: There is significant public interest in upholding the integrity of the planning controls in this case, which involved unauthorised works in the high risk floodway. There are other properties where unauthorised work has been undertaken, that are awaiting the outcome of this decision.
42. The evidence of Ms Jones, a building surveyor employed by Liverpool Council, referred to other properties within Moorebank Floodway where allegedly unlawful development has occurred - in relation to which enforcement action is on hold pending judgment in this matter.
43. When issues of human health and safety are at the core of planning and environmental controls, as is the case with floodway management controls, it can be justifiably argued that such considerations must be given paramount weight. In circumstances where the Court is aware that potentially similar cases of enforcement are on hold, the Court is alert to the merit in conveying an unambiguous message when it exercises its discretion. This Court again refers to and adopts the words of the Court of Appeal in Warringah Shire Council v Sedevcic at 340(B) in conveying that message: …. [t]here is indicated a legislative purpose of upholding, in the normal case, the integrated and co-ordinated nature of planning law. Unless this is done, equal justice may not be secured. Private advantage may be won by a particular individual which others cannot enjoy. Damage may be done to the environment which it is the purpose of the orderly enforcement of environmental law to avoid: cf Attorney-General v Harris [1961] 1 QB 74 B at 94; Trimboli v Penrith City Council (1981) 48 LGRA 323 and Deane J (dissenting) in Lizzio v Ryde Municipal Council (1983) 155 CLR 211.

Costs

1. In ordinary Class 4 proceedings, the effect of rule 42.1 of the Uniform Civil Procedure Rules 2005 is that the Court should normally require that the reasonably incurred costs of the successful party be paid by the unsuccessful party: Latoudis v Casey (1990) 170 CLR 534 at 566-567; [1990] HCA 59 and Oshlack v Richmond River Council (1998) 193 CLR 72; [1998] HCA 11 at [67]. The significance of the general rule is that, as was observed by McHugh J in Re Minister for Immigration and Ethnic Affairs; Ex parte Lai Qin (1997) 186 CLR 622 at 624; [1997] HCA 6, "[s]uccess in the action or on particular issues is the fact that usually controls the exercise of the discretion. A successful party is prima facie entitled to a costs order": citing Latoudis v Casey at 566-568.
2. The Court's discretion with respect to costs is nevertheless broad and, so, in a case where the circumstances warrant it, the Court can adopt a course at variance to the normal approach. This case is an instance where such a variance is warranted. Although Liverpool Council has succeeded, the Court in its discretion will not order the Respondents to pay the Council's costs. In this respect, I note at the outset that the position of Liverpool Council in response to the Court raising the fact that costs are sought in the Summons was: "Yes, but it's a matter for obviously your Honour in the exercise of the discretion …" (Transcript, 14 June 2017, p 47).
3. As I have amply described earlier in this judgment, the Court considers that the inordinate successive delays on the part of the Council were unjustifiable. The commencement of unpermitted building on the Land could have been redressed, by stopping the works and then reversing them, years before the proceedings began and at a time when relatively insignificant building costs would have been incurred by the Respondents. The Tirnova family would have had very different expectations and suffered far less.
4. I am also mindful of the fact that as soon as the Respondents understood the ramifications of their works being potentially unlawful, they expeditiously sought to regularise the development (albeit unsuccessfully) by retaining planning, floodway and building experts to prepare and lodge both a development application and building application. There has been no tardiness on the part of the Respondents, in stark contrast to the actions of Liverpool Council.
5. Accordingly, I have decided not to make an order as to costs.

Orders

1. The Court: 1. Declares that the First Respondent has: 1. carried out development for the purpose of a dwelling house, namely the erection of structures in the form of: 1. a single-storey extension adding habitable rooms to the rear of an existing dwelling house; 2. a sea wall at the rear of the premises; and 3. a masonry and cement-rendered boundary fence at the front of the premises, on land described as Lot 67 DP 657033, known as 40 Newbridge Road, Chipping Norton (the Land), being land within Zone R2 Low Density Residential for the purposes of the Liverpool Local Environmental Plan 2008 and within which zone development for the purposes of dwelling house could only be carried out with development consent; and 1. breached section 76A(1) of the Environmental Planning and Assessment Act 1979 by carrying out that development on the Land without first obtaining development consent. 1. Notes that Liverpool City Council has committed to taking no action with respect to the actions of the First Respondent which have led to the construction and current state of the sea wall at the rear of the premises abutting the Georges River. 2. Orders the First Respondent, within 90 days of the date of these orders, to: 1. demolish the masonry and cement-rendered boundary fence at the front of the premises; 2. remove from the premises the materials resulting from the demolition of the fence to a lawful waste facility, save for any materials which are able to be reused in the construction of a replacement fence the subject of Note (4) below; and 3. provide a receipt to Liverpool City Council confirming that the demolished materials referred to in Order (3)(b) have been disposed of at a lawful waste facility. 1. Notes that Liverpool City Council has committed to allowing the Respondents to build, with consent, a replacement front fence on the Land that is permeable and allows the unhindered flow of flood waters. 2. Orders the First Respondent, within twelve months of the date of these orders, to: 1. demolish the single-storey extension to the existing dwelling house on the Land; 2. remove from the premises the materials resulting from the demolition of the single-storey extension, together with any other building materials stored on the premises associated with the original construction of the extension, to an appropriate waste facility, save for any materials which are able to be reused in the reinstatement of the rear to the existing dwelling the subject of Order (5)(d); 3. provide receipts to the Liverpool City Council confirming that the demolished materials referred to in Order 5(b) have been disposed of at a lawful waste facility; and 4. rebuild an appropriate rear to the existing dwelling, after the demolition of the extension, so that it may be returned to habitable use. 1. Notes that Liverpool City Council will facilitate the reinstatement of the existing dwelling so as to allow it to return to habitable use.

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 October 2017