Marion McDowell and Associates Pty Ltd v Georges River Council

Land and Environment Court (NSW)|2017-06-05

Judgment

COMMISSIONER: Marion McDowell & Associates Pty Ltd ('McDowell') is the owner of premises at 58 Blackshaw Avenue, Mortdale, which comprise a ground floor stone masonry business with a first floor office and caretaker's dwelling. An extension at the rear of the premises has been constructed without development consent.
McDowell appeals against an order issued by Georges River Council on 15 July 2016 pursuant to s121B of the Environmental Planning and Assessment Act 1979 ('EPA Act'), in which the Council requires McDowell to: "1. Remove the unauthorised metal enclosure/extension that has been attached to the rear of 58 Blackshaw Avenue Mortdale."
Following the commencement of the appeal, McDowell made an application to the Council on 21 September 2016 for a building certificate under s149B of the EPA Act. That building certificate application has not yet been determined. McDowell seeks to have the order stayed pending the outcome of that application.
The only contentions raised in the Statement of Facts and Contentions as grounds upon which McDowell seeks to have the order set aside are, firstly, that a Notice of Intention to issue the order was not served on the applicant and secondly, that the structure is capable of being regularised. The first of these grounds is not pursued, and McDowell submits that the second ground warrants a stay of the order pending the determination of the building certificate application.
For the reasons set out below, I accept that the order can be made, is reasonable in the circumstances and ought not be set aside or stayed until further order of the Court. The fact of a building certificate application being made is not a sufficient ground, in and of itself, for an order to be set aside or stayed.

The structure

The hearing commenced on the site where the premises are situated and I had the benefit of viewing the unauthorised structure the subject of the order. It comprises a large shed or hangar-type structure to the rear of the pre-existing premises, covering the area between the existing premises and the rear boundary, with only marginal setback to the rear boundary, a setback of up to 0.78m to the eastern boundary, and zero setback to the western boundary. It consists of a concrete slab and foundation, corrugated iron or steel roofing, steel columns and beams and gyprock cladding. The structure is adjacent to but independent from the original section of the premises.
It was observed that some changes to the structure had been made since the imposition of the order, including replacing the steel cladding with two layers of fire-rated gyprock (known as FireZone), enclosing the side of the structure which had previously allowed access through a sliding steel door, and general improvements to the bolting of connections.

The role of the Court on appeal

The appeal is lodged pursuant to s121ZK of the EPA Act. In hearing the appeal, the Court re-exercises the functions of the Council in determining whether the order should be issued. Section 39 of the Land and Environment Court Act 1979 ('the Court Act') provides as follows: "(2) In addition to any other functions and discretions that the Court has apart from this subsection, the Court shall, for the purposes of hearing and disposing of an appeal, have all the functions and discretions which the person or body whose decision is the subject of the appeal had in respect of the matter the subject of the appeal. (3) An appeal in respect of such a decision shall be by way of rehearing, and fresh evidence or evidence in addition to, or in substitution for, the evidence given on the making of the decision may be given on the appeal."
In determining an appeal under s121ZK, the Court may (at s 121ZK(4)): "(a) revoke the order, or (b) modify the order, or (c) substitute for the order any other order that the person who gave the order could have made, or (d) find that the order is sufficiently complied with, or (e) make such order with respect to compliance with the order as the Court thinks fit, or (f) make any other order with respect to the order as the Court thinks fit."
As set out by Dixon C in Imaroo Flyer Pty Ltd v Berrigan Shire Council [2010] NSWLEC 1251 (at [22]): "As is clear from the wording of the section the Court's power under section 121ZK(4) of the EPA Act does not extend to a merit assessment of the structures. The Court has no power in this appeal to grant an approval for the structures to remain without development consent under the EPA Act."
Whilst the wording of s 121ZK(4) does not specify that a stay on the order may be granted, the power to make such an order falls within the ambit of s 121ZK(4)(f) and within the Court's ancillary powers under s 16(1A) of the Court Act.

Development consent is required

There is no dispute that the works referred to in the order were carried out unlawfully, in that they were carried out without development consent in circumstances where development consent is required.
The premises are located in the IN2 Light Industrial Zone under the Hurstville Local Environmental Plan 2012 ("HLEP 2012"). Under the HLEP 2012, the only development that can be carried out without consent is development for "home occupations". The rear extension of the premises is not exempt or complying development for the purposes of the State Environmental Planning Policy (Exempt and Complying Development Codes) 2008. As such, the rear extension requires development consent. There is no dispute that no such development consent was obtained.
The position is the same if the structure was constructed prior to the HLEP 2012, when the Hurstville Local Environmental Plan 1994 (HLEP 1994) was in force. Under the HLEP 1994, the premises are on a site located in Zone No 4 (Light Industrial Zone), in which development that is not prohibited or exempt requires development consent. The erection of the structure was not exempt development under the Hurstville Development Control Plan 2003 No 14 - Exempt and Complying Development.
Given that development consent for the building is required but was not obtained, an order for the removal or demolition of the building is available pursuant to order number 2(a) of the table in s121B of the EPA Act.

Regularising the building works

Pursuant to s 149E of the EPA Act, a building certificate, if issued, prevents the Council: "(a) from making an order (or taking proceedings for the making of an order or injunction) under this Act or the Local Government Act 1993 requiring the building to be repaired, demolished, altered, added to or rebuilt, (b) …. in relation to matters existing or occurring before the date of issue of the certificate.
Mr Lovie, on behalf of McDowell, sought to regularise the building through obtaining a building certificate. The building certificate application is not restricted to the structure to the rear of the premises, but also covers changes to the existing premises including the construction of the first floor level.
Following lodgment of the building certificate application in September 2016, the Council wrote to Mr Lovie on 26 October 2016 requesting further information. What then ensued was a period within which information was passed between the parties, and negotiations occurred as to what needed to be done to have a building certificate issued. Over that period, Mr Lovie has taken a number of steps to seek to address issues raised by the Council, yet a number of matters remain outstanding.
Firstly, there is a Sydney Water asset on the site and as such approval from Sydney Water is required. However, the inspection hole located on the site (external to the structure) has been covered by a concrete slab. That concrete slab must therefore be removed before any such inspection can take place and approval given.
Secondly, some work is required before an engineer can certify that the building meets the Building Code of Australia and the relevant Australian Standards. That includes treating the steel column and beams with appropriate coatings.
Thirdly, a number of issues regarding fire safety were raised. As a result, McDowell replaced the steel cladding with FireZone and commissioned a fire engineering report for an alternative solution to meet the fire rating level of 90/90/90 required for the external wall system. To finally resolve the fire safety concerns, certification must be obtained that indicates that the work carried out was in accordance with that solution and a fire safety certificate must be provided.
Another issue, concerning stormwater drainage, was a significant concern raised by the Council given that the site is now almost fully covered by impervious structures. However, an agreement has been reached as to the stormwater drainage plan and the works to be undertaken. As a result, Mr Lovie is required to undertake the installation and connection of a number of stormwater pipes as well as enter into an agreement to make a contribution to the Council towards the cost of works to upgrade the Blackshaw Street catchment system. This will also be required before the issue of a building certificate.
The building certificate will not be issued by the Council until such time that the above matters are addressed. As no appeal has been lodged regarding the building certificate application, the Court does not have any role in determining the appropriateness of the issue of a building certificate once the above matters are addressed. The extent to which the Court can have regard to the detail of what is required is somewhat limited.

Should the order be stayed?

McDowell says that, based on the evidence, it is clear that the building works can be regularised. It submits that the evidence does not demonstrate that the building should be demolished in accordance with the Council's order, and that therefore the order should not have been made. McDowell submits that to allow a final determination of the building certificate application, the order should be stayed pending further order of the Court. McDowell submits that such an approach is the 'long standing practice' of the Court when a building certificate application has been lodged, and that this practice should be followed even in circumstances where the building certificate application is not before the Court on appeal. There were no decisions of the Court furnished by McDowell in support of this apparent long standing practice.
The Council's position is that, given there are still significant matters outstanding on the determination of the building certificate, the order should remain but with an amendment to allow McDowell additional time to comply with the order so that those outstanding matters can be addressed. The Council suggests that an appropriate period would be the end of July, around 7 weeks away, with scope for that to be varied with the agreement of the Council. The Council submits that it is not appropriate for the order to be stayed for an indefinite period in circumstances where Mr Lovie, the applicant for the building certificate, has provided little by way of further information and where there have been significant periods with no activity by the applicant in pursuit of the building certificate. Instead, the Council submits that the issues the subject of the proceedings should be given an 'end date' by imposing the order with a final date that allows sufficient time to finalise the building certificate application process, with an order that if the certificate is issued the order be revoked.
I do not accept that a stay on the order on the terms proposed by McDowell is appropriate. Such a stay would effectively serve to adjourn the proceedings indefinitely. The proceedings have been on foot since 11 August 2016, some 10 months ago. The first directions hearing was adjourned for 2 weeks to allow the building certificate application to be lodged, yet it was not lodged until the day prior to the second directions hearing on 22 September 2016. A conciliation conference was arranged, but extended for a period of 3 months. To allow a further adjournment would not be consistent with the Court's duty, pursuant to s 56 of the Civil Procedure Act 2005, to facilitate the "just, quick and cheap" resolution of the real issues. As the High Court has established, the timely disposition of proceedings is essential to the provision of justice: Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; [2009] HCA 27.
Further, I do not accept that there is a 'long standing practice' of the Court to grant an indefinite stay of an order issued pursuant to s121B of the EPA Act pending the outcome of a building certificate application. Any such 'long standing practice' may be instead a reference to the practice of the Court, at the case management stage, to allow short adjournments of order appeals to permit an applicant to pursue a building certificate application, as long as there is no health or safety risk associated with prolonging the determination of the appeal. It is then common practice for a building certificate appeal to be lodged (following the conclusion of the deemed refusal period), so that the Court can case manage both appeals and both matters come before the Court for consideration at a final hearing. This is not what has occurred here. No such appeal has been lodged and the building certificate is not before the Court. As such, there is no certainty that it will be issued or that the applicant will take the steps required to have it issued.
I do not accept the submission of McDowell that there is no evidence that the structure warrants demolition. In circumstances where a building certificate is not issued, there is no basis presently before the Court upon which the structure can remain.
Accordingly, it is reasonable for the order to require the demolition of the structure. However, I will stay the order for a period of 3 months to allow the building certificate to be obtained, which is longer than the period suggested by the Council. Assuming that Mr Lovie proceeds without further delay, this will allow sufficient time for the concrete slab above the Sydney Water inspection point to be removed, for the inspection to be carried out, and for the other outstanding matters to be addressed. Once the three month period has expired, McDowell will have 14 days to organise the removal of the structure. Given that I consider this period to be liberal in circumstances where an unauthorised structure has remained in place for 10 months after an order for its removal, any application to vary this period will have to be made to the Court by way of notice of motion with an affidavit in support.
The Court orders that: 1. The s 121B order issued by the Council on 15 July 2016 is varied in accordance with order 2 below. 2. Marion McDowell & Associates Pty Ltd is to remove the unauthorised enclosure/extension that is at the rear of 58 Blackshaw Avenue Mortdale, within 14 days of the date that this order takes effect. 3. Order 2 is stayed for a period of 3 months. 4. In the event that building certificate application number 149D2016/0038 is granted and a building certificate concerning the entire rear structure is issued prior to the expiry of the stay, order 2 is revoked. 5. The parties have liberty, to be exercised by way of notice of motion with a supporting affidavit, to apply to vary the period of the stay granted by order 3. 6. The exhibits are returned. ………………………. Joanne Gray Commissioner of the Court 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: 14 June 2017

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Judgment (7 paragraphs)

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