Maroun Holdings Pty Ltd v Kiama Municipal Council

The role of the Court on appeal

1. 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: 39 Powers of Court on appeals ... (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...
2. The Court therefore exercises the power pursuant to s 9.34(1), which provides as follows: 9.34 Orders that may be given (cf previous s 121B) (1) The development control orders that may be given under this Act are as follows - (a) general orders in accordance with the table to Part 1 of Schedule 5, …
3. In addition, s 8.18(4) sets out the powers of the Court on an appeal against an order. Those powers are as follows: (4) On hearing an appeal, the Court may: (a) revoke the development control order, or (b) modify the development control order, or (c) substitute for the development control order any other order that the relevant enforcement authority who gave the order could have given, or (d) find that the development control order is sufficiently complied with, or (e) make such order with respect to compliance with the development control order as the Court thinks fit, or (f) make such other order with respect to the development control order as the Court thinks fit.
4. The use of the word "may" in both s 9.34(1) and s 8.18(4) makes it clear that, even if the statutory requirements for the issue of an order in Part 1 of Schedule 5 are met, there is a broad discretion to consider whether to issue an order (s 9.34(1)) and to consider the appropriate orders on the hearing of an appeal (s 8.18(4)). However, this discretion does not extend to granting a planning approval for structures to remain (see Imaroo Flyer Pty Ltd v Berrigan Shire Council [2010] NSWLEC 1251 at [22]). In these proceedings, the question is confined to how the discretion ought to be exercised in the circumstances.

The circumstances that led to the issue of the order

1. Jones Beach Reserve is classified as community land, and was subject to a plan of management adopted by the Council in 2001. On 19 August 2014, the plans of management for Jones Beach Reserve and the nearby Cathedral Rocks Reserve were combined into a single plan of management, the Jones Beach and Cathedral Rocks Reserve Plan of Management ("POM").
2. Informal tracks and stairs on Jones Beach Reserve have been in existence prior to the original plan of management for the Jones Beach Reserve. This includes some stairs that were located at the rear of 106 North Kiama Drive. Figure 1 shows a photograph of the stairs at the rear of 106 North Kiama Drive, taken on 30 August 2016.

The Plan of Management

1. The POM introduced a number of amendments that include, inter alia, the following:

• Each of the existing step/stair structures are required to be upgraded to a consistent specification established by the Council to make the structures individually safer for use;
• The upgrading of each structure will need to be completed within a specified timeframe;
• The Council will investigate the potential to create a continuous linked public pathway through the reserve utilising the existing steps as access to and from higher ground;
• The alternative to the upgrading of the steps is their total removal by the Council.

1. The POM also makes it clear that whilst residents can perform minimal maintenance within the public reserve, this "does not extend to erecting/establishing structures of any kind".
2. The report to the Council with respect to the POM, which recommends the adoption of the POM, noted the stairs as an issue, and described the issue as follows: "opposed to steps benefitting private property owners". Nevertheless, the report states: "The issue of previously constructed steps in the public reserve (seven individual step structures) has been considered and the intention is to utilise these access points in the future to potentially create a continuous public walking path system."
3. Consistent with the report, the POM identified seven stair structures shown at Appendix 3 to the POM. The seven identified did not include the stairs to the rear of 106 North Kiama Drive. Nevertheless, the POM contains an Action Plan that includes identifying existing steps. The relevant steps in the Action Plan are as follows: Objectives How Specific Actions Performance measures/achievement of objectives • Public safety and access • Identify existing steps in reserve and establish guidelines for upgrading • Time period to complete steps upgrading according to specification • Steps upgraded to specification or removal of structures if deemed unsafe and assessment of step structures at 5 year intervals against specification • Identify cliff top bugger along Cathedral Rocks headland • Introduce cliff top buffer vegetation • Periodic inspections of cliff top buffer • Investigate continuous public access promenade through public reserve utilising existing step structures • Future public access connectivity linking Jones Beach to Cathedral Rocks headland incorporating existing steps • Construction of access

1. The POM therefore contemplated that stairs would be identified as part of the Action Plan.
2. Appendix 4 to the POM contains the specifications for the upgrade of the existing access steps on Jones Beach Reserve.

Correspondence with landowners

1. On 9 July 2015, the Council wrote to a number of landowners concerning the POM. The letter was not sent to Maroun, it not being the owner of 106 North Kiama Drive at that time. The letter stated as follows: "The plan of management requires the step structures to be upgraded to a specification of Council in order to remain in place on the reserve so that they are individually safer for public use. There will be time period of nine months for the work to be completed. It will be the responsibility of the landowners to organise the works in the near future. This letter is to advise that Council is now finalising the specification and will be able to provide it to you together with a completion date for the works in the near future".
2. On 11 December 2015, Council wrote to a number of landowners regarding the access steps and enclosed the final specifications. Maroun was not a recipient of the letter, and there is no evidence of the extent of Maroun's knowledge of the letter at the time of its purchase of the land in December 2015. The letter stated: "Each landowner will be responsible for the upgrading works using Council approved contractors having appropriate insurances in place to undertake works on public land. Council must be notified before the commencement of any works including details of the contractor and their insurances, work plans and safe work method statements. Council will then be able to give access into the reserve for the works to commence. The completion date for the steps upgrade works is 31 January 2017. If action has not been taken to upgrade the steps in accordance with the Detailed Requirements by this date the Plan of Management requires redundant structures to be demolished."
3. The specifications provided with the letter dated 11 December 2015 include, inter alia:

• A permit to enter into/access public reserve and for issue of the key is required from the Council, with the payment of a $600 damage bond;
• The upgrading of the steps must be completed in full within 12 months of the date of the specification, specifically, by 31 January 2017; and
• Existing step structures not upgraded within this timeframe will be demolished and removed by the Council, with the costs associated with the demolition and removal to be borne by the respective current property owner who benefits from the structure.

1. The author of each of the above letters was Mr Bryan Whittaker, who had the title "Director Engineering and Works".

Initial correspondence with Maroun

1. On 8 November 2016, the Council wrote to Maroun in the following terms: "Council reviewed its Plan of Management for Jones Beach Reserve, Kiama Downs in 2014. The reserve adjoins your property. In December 2015 we wrote to you about the need to undertake upgrade works to the steps on the public reserve which gives access to your property. Council has developed a specification for the standard of upgrade works required. The moratorium for the steps to be upgraded is approaching; the date is 31 January 2017. Some property owners have elected to undertake the required works. Any step structures not upgraded by this date will be progressively removed from the reserve. You are requested to make the necessary arrangements for the step upgrading if you want to retain this access. Any owner who does not wish to undertake the upgrade works is not obliged to however in the future the existing access steps through the reserve will be removed."

The grant of development consent for the construction of a dwelling

1. On 2 December 2016, one month after the first letter to Maroun and prior to a second letter described below, the Council approved Development Application 10.2016.197.1 for demolition of existing dwelling and erection of a new dwelling at 106 North Kiama Drive. The development consent was subject to a number of conditions. Condition 1 under the heading "Access to Rear Reserve" stated: "There shall be no construction undertaken on the rear reserve to extend formal access to the rear beach without the formal written approval of Kiama Council" ("the Access Condition").

Further correspondence between the Council and Maroun

1. Following the grant of development consent for the dwelling, on 24 January 2017, a letter was sent to Maroun by Mr Gino Belsito, the then Director of Engineering and Works at the Council. The letter largely repeated the contents of the first and second paragraphs of the letter dated 8 November 2016, and went on to state the following: "At a recent meeting with you, it was advised that you removed the existing steps and that you are in the process of designing and reconstructing the new steps at the above location. In light of the initial hazard of the unsafe steps having been addressed and the [imminent] construction of a new dwelling at this location, it is reasonable that a further extension of time is approved to complete the new stairs. Accordingly, you are advised that plans for the new steps be submitted within the next 6 weeks and that construction of the stairs be completed by 1 July 2017. Failure to complete the work within this period will be seen as surrendering your access to the reserve."
2. Maroun did not construct the stairs by the date of 31 January 2017, and did not submit plans for new steps within 6 weeks of the date of the letter. Instead, on 5 April 2017, Mr Rodney Maroun sent an email to Mr Belsito referring to the letter of 31 January 2017. Mr Maroun's position, as described on the email, was Project Manager for Multi Power Group ("MPG"), who were carrying out the development works at 106 North Kiama Drive. The email of 5 April 2017 states as follows: "I have recently received your letter with reference, GB:CB 17/4860, and I have a few enquiries about the design limitations or guidelines. Attached are a prelim Landscaping plan including the stairs to the beach. I would like for you to answer the following questions if possible to instruct the landscape designer/architect; 1. Are all rules simply BCA standard codes or does Kiama Municipal Council have their own version of the BCA? 2. What is the maximum width we can achieve? 3. What exact documentation do you need us to submit to council in order to seek approval? If you could please provide me with this information in order for us to begin carrying out works to meet the deadline in the letter. We will do our best to ensure that all works will be completed by the 1st of July 2017."
3. Mr Belsito replied on 11 April 2017 as follows: "Further to our discussion please note that the new stairs should be BCA compliant and the width should be no greater than what was there. As for documentation my understanding was that you would include the stairs in your DA submission."
4. On the same date, Mr Maroun replied with the following: "When we spoke to you previously about the stairs, the DA was already approved. We are doing a section 96 for this development and the stair documentation will be a part of the section 96. The stairs will be BCA compliant with a riser of 180mm and the width to be no greater than 1200mm. Stairs will be in-situ concrete. The documentation will include survey, architectural plans as well as engineering plans."
5. Again, on the same date, Mr Belsito replied and stated "That will be great".
6. Later that day, Mr Maroun sent a further email as follows: "If we can speed up the process, is it possible to give you the stair documentation/plans separately to the section 96 so you can approve them quicker than having to wait for the section 96 to be completed and lodged."
7. Mr Belsito replied, again on the same day, at 4:04pm stating "Yes please send them through".
8. This email was then sent on by Mr Maroun to another person, Daniel Donai, and states that "We do not have to put the stair documentation/plans with the section 96. We can give them to council separately for approval".
9. On 5 June 2017, an email was then sent from Mr James Hatzidavid, a Project Co-ordinator with MPG, to Mr Belsito, stating "As discussed with Daniel last week, please see attached stair plans for your approval". The email attached plans for the stairs by DTA architects.
10. Mr Belsito replied on the same day, stating "Yes this will be acceptable".
11. The stairs were not constructed by the date of the extended timeframe of 1 July 2017. An aerial image taken on 28 December 2017 demonstrates that no stairs had been constructed by that date.

The construction of the stairs and the issue of the order

1. The construction of the stairs commenced on or around 20 February 2018. On 2 August 2018, officers of the Council attended 106 North Kiama Drive and the Jones Beach Reserve in order to investigate a complaint concerning illegal dumping. At that time, it became aware that concrete stairs had been constructed on the reserve and were connected to the concrete hardstand area at the rear of the property. A photograph of the concrete stairs, taken at the inspection, is shown at Figure 2.
2. The new stairs were constructed in a different position to the previous stairs that led from the property onto the reserve.
3. On 3 August 2018, Council issued a Notice of Intention to serve an order to demolish the concrete stairs to Maroun. On 30 August 2018, Development Application No 10.2018.185.1 was lodged by Maroun, seeking consent for the use of stairs. The development application was refused on 19 February 2019, for the following reasons: "1. The proposal is prohibited development within the RE1 - Public Recreation Zone. 2. The stairs are an unauthorised structure built without a planning approval over public land. 3. The proposal is inconsistent with the objectives of the RE 1 - Public Recreation Zone. 4. The proposal is inconsistent with the objectives of the State Environmental Planning Policy (Coastal Management) 2018. 5. The proposal is not considered to be in the public interest. 6. The approval of the proposal would set an undesirable precedent."
4. On 11 March 2019, Council issued the order the subject of the appeal.

Other stairs in the locality

1. The hearing commenced with an inspection of a portion of Jones Beach Reserve where it adjoins the rear of properties that front North Kiama Drive, from number 100 to the south to number 126 to the north. There is a children's playground located immediately north of number 126, and the properties from 114 to 126 have level access to the public reserve (through gates or unfenced rear yards, or other informal means of access). The embankment on the western side of Jones Beach Reserve commences at around the rear of 112 North Kiama Drive, such that number 112 and the properties to the south do not have level access to the reserve from their properties.
2. The POM identifies that stairs are located on the public reserve to the rear of properties at numbers 112, 110, 108, 104 and 100 North Kiama Drive. At the site inspection, the stairs at numbers 112, 110, 108 and 104 were readily observable. Consistent with the specifications in the POM, it was observed that the stairs at number 112 have been upgraded by the addition of a handrail, and that the stairs at numbers 110 and 108 have been upgraded by the addition of new concrete treads and risers installed on some or all of the steps.

The expert evidence on the structural adequacy of the stairs

1. Mr Daniel Barnes, an engineer employed by the Council, and Mr Neil Walsh, an engineer engaged by Maroun, gave expert evidence on the structural adequacy of the stairs. Their evidence is that scouring of the bank is not of concern and that the construction of the stairs is stable given the series of reinforced concrete piers that fix the stairs to stable material. They state the following, by agreement: "The stairs appear to be well constructed with no visible movement or cracking. The stairs have been certified by ACE Consulting Engineers who noted that they inspected the [stairs] during construction. Having both read this certification, sighted photographs of the piers and inspected the stair 12 months after construction we are in agreement that the stairs are sound and serviceable. As per the ACE Consulting Engineering certification they have been constructed in accordance with the engineer's plans."
2. Mr Winram, the solicitor for the Council, sought to challenge this agreed opinion based on the "Statement of Limitations" contained in the report dated 18 November 2019 (Ex E). These questions did not lead Mr Barnes to modify his expert testimony. Given that Mr Barnes and Mr Walsh reached their opinion based on the photographs in the report, statements of the inspection during construction, and their own observations of the stairs, I am satisfied that their opinion is not disturbed by reason of any limitation imposed by the author of the report of 18 November 2019.
3. There were two outstanding issues that Mr Barnes and Mr Walsh consider could be resolved, which concern tidal inundation and Building Code of Australia ("BCA") requirements.
4. With respect to tidal inundation, this has a potential impact on both the lower landing as well as electrical wiring on the lower landing. With respect to the electrical wiring, Mr Barnes and Mr Walsh agree that this could be disconnected in order to resolve any associated issue.
5. In the joint report, Mr Barnes and Mr Walsh stated that "The level of tidal inundation should be confirmed as we both considered that the stair appeared well above any such inundation". The report noted that the level "likely resides in council documents". However, on the issue of a Notice to Produce to the Council requesting the same, the Council responded with a letter stating that there were no documents to produce. On Mr Walsh's inspection of data contained on the website of the Bureau of Meteorology, which he carried out on the day of the hearing, the maximum high tide in 2018 and 2019 for Port Kembla (north of Kiama Downs) was 2.08m. The lower landing is at RL 5.28m.
6. With respect to compliance with the BCA, Mr Barnes and Mr Walsh agree that "when compliant handrails are placed that the stair as a whole will comply with the requirements of the BCA."

The statutory basis for the order

1. There is no dispute, and I accept, that the statutory requirements for the order are satisfied. As set out above, s 9.34(1)(a) of the EPA Act allows a development control order to be given in accordance with the table to Part 1 of Schedule 5, and item 3 of that table allows an order to be issued as follows: Column 1 Column 2 Column 3 To do what? In what circumstances? To whom? A building - • requiring a planning approval is erected without approval, or 3 Demolish Works Order • requiring approval under the Local Government Act 1993 is erected without approval, or Owner of building or, if the building is situated wholly or partly in a public place, the person who erected the building To demolish or remove a building • is or is likely to become a danger to the public, or • is so dilapidated that it is prejudicial to persons or property in the neighbourhood, or • is erected in contravention of this Act.

1. A "building" is defined in s 1.4 of the EPA Act to include "part of a building" and also "any structure or part of a structure". The stairs are therefore a "building".
2. The stairs were erected in contravention of the EPA Act, as the construction of the stairs is either prohibited development, or is development that requires a planning approval in the form of a development consent. The public reserve is zoned RE1 - Public Recreation pursuant to the Kiama Local Environmental Plan 2011 ("KLEP 2011"). Use for the purpose of dwelling houses is an innominate prohibited use in the RE1 zone. As such, if the stairs are for the purpose of the dwelling house erected on 106 North Kiama Drive, then they are prohibited on the reserve. Section 4.3 of the EPA Act states that if an environmental planning instrument provides that specified development is prohibited on certain land, a person must not carry out the development on the land. As such, in those circumstances, the stairs were erected in contravention of the EPA Act, which satisfies the last dot point in column 2 and authorises the issue of the order.
3. Alternatively, if the construction of the stairs is for a purpose of a use that is permissible, or if the parcel of land at the rear of the site benefits from an existing use for the purpose of a dwelling house within the meaning of s 4.65 of the EPA Act (and that use has not been abandoned), the demolition of the previous stairs and their replacement is not prohibited. Instead, it is development that requires development consent pursuant to s 4.67(1) of the EPA Act and cl 44 of the Environmental Planning and Assessment Regulation 2000 (and the latter provision is then incorporated in the KLEP 2011 by s 4.67(2) of the EPA Act). Section 4.2 of the EPA Act states that where an environmental planning instrument provides that development consent is required for certain development, a person must not carry that development out unless such a consent has been obtained. As development consent has not been granted, and as Mr Belsito did not have delegation to grant development consent, those circumstances would meet both the first and the last dot point in column 2 and similarly authorise the issue of the order.
4. Finally, Maroun is the landowner of the adjacent property that benefits from the stairs, and there is no dispute that it was responsible for the construction of the stairs and therefore is the appropriate recipient of the order in accordance with column 3 of item 3.
5. Merely because the statutory basis for the order can be established, does not automate the issue of the order or compel the dismissal of the appeal. Instead, there remains a broad discretion as to whether an order should be issued, and on appeal, whether orders should be made in accordance with s 8.18(4).

The Council's position that the stairs should be removed

1. The Council's position is that the order should not be revoked and Maroun should carry out the works to remove the stairs as required by the order. It raises a number of contentions in support of its position.
2. Firstly, the Council contends that the construction and use of the stairs is prohibited not only by the EPA Act, but also by the Local Government Act 1993 ("LG Act"). The Council says that it is prohibited in two ways. The first way in which it is prohibited is that it is contrary to s 47D of the LG Act, which prohibits "the exclusive occupation or exclusive use by any person of community land" otherwise than in accordance with a lease, licence or estate. A lease, licence or other estate can only be granted by the Council in respect of community land if it is expressly authorised in the applicable plan of management. The POM contains no such authorisation. The second way in which the Council says the construction and use of the stairs is prohibited is that it is not authorised by the POM, in accordance with which the land is required to be managed (see ss 35-36 of the LG Act). The Council submits that the construction of the stairs is outside the scope of the POM as it involved the construction of new stairs rather than an "upgrade" as contemplated by the POM, it was done in a different location to the pre-existing stairs, was not carried out in accordance with the specifications, was not carried out in accordance with the procedural requirements in the POM to (inter alia) provide a safe work method statement and pay a bond, and was constructed after the period of the moratorium.
3. Secondly, the Council contends that the construction of the stairs is contrary to the EPA Act not only because it is not the subject of a development consent or is for a use that is prohibited, but also because it is a breach of the conditions that were imposed on the grant of development consent for the construction of the dwelling house. The Council submits that the Access Condition of the consent for the dwelling house made it clear that nothing should be constructed on the rear reserve "without the formal written approval of Kiama Council", and the email from Mr Belsito did not constitute "formal written approval" of the Council.
4. Thirdly, the Council says that Mr Belsito had no delegation to extend the time for the moratorium and had no delegation to grant development consent. This is supported by the Delegations of Authority that were notified to Mr Belsito on 12 April 2016. Further, s 47E(1) of the LG Act, which concerns the development of community land, precludes delegation of a "power of a council under an environmental planning instrument to consent to the carrying out of development on community land" if, at (a), "the development involves the erection, rebuilding or replacement of a building", or at (d), "the location of the development has not been specified in the plan of management applied to the land…". The Council says that this means that Mr Belsito did not have authority to approve the construction of the stairs, and any purported acceptance by him of the appropriateness of the stairs cannot amount to a consent issued by the Council.
5. Fourthly, in circumstances where the development application for the use of the stairs was refused (and no appeal was lodged against that refusal within the 6 month statutory appeal period), there is no consent for the use of those stairs for the purpose of the dwelling house to which the stairs provide exclusive access. The Council submits that the retention of the stairs in those circumstances would leave an anomaly where there are stairs and no consent for their use.
6. Fifthly, the Council maintains that, without the appropriate development approval and certification, the concrete stairs are likely to become a danger to the public and create a safety risk. The Council relies on the evidence of Mr Barnes and Mr Walsh, who agree that the stairs remain non-compliant with the BCA due to the absence of handrails. The Council also submits that no evidence has been supplied to demonstrate that there is no risk of tidal inundation. The Council also points out that the constructed stairs include electrical wiring and, if the land is subject to tidal inundation, this may expose the wiring and create a risk to the public who use the reserve.
7. Sixthly, the Council submits that the order was validly issued. It submits that all of the procedural requirements for the issue of the order were met, and that the order stated the reason for the demolition, being the absence of required planning approval. The Council relies on the decision of the Court of Appeal in J & J O'Brien Pty Ltd v South Sydney City Council (2002) 121 LGERA 223; [2002] NSWCA 259 to support its position that a statement of the prescriptive statutory requirement for the issue of the order can amount to the provision of adequate reasons. At [47], Stein JA considered that "the fact that work is non-complying may be capable of constituting both a basis for and reason for taking action".
8. Seventhly, the Council submits that the construction of the stairs is contrary to the public interest in circumstances where it is prohibited and inconsistent with objectives for development in the RE1 zone. The objectives of the RE1 zone, pursuant to the KLEP 2011, are as follows: • To enable land to be used for public open space or recreational purposes. • To provide a range of recreational settings and activities and compatible land uses. • To protect and enhance the natural environment for recreational purposes.

Maroun argues that the stairs should be permitted to remain

1. Maroun submits that the Council's own actions and documents support the retention of the stairs, and that the stairs are consistent with the Council's POM and its intention "to create a continuous linked public pathway through the reserve (near private property boundaries) utilising the existing steps as access points to and from higher ground".
2. Maroun submits that whether the construction of the stairs is prohibited under the EPA Act is only one factor for consideration in the exercise of the broad discretion conferred on the Court pursuant to s 8.18(4) of the EPA Act. Maroun points out that the Council's own actions and documents stand in contrast to such a prohibition. Maroun relies firstly on the POM, which accepts that there are various stairs in existence, proposes requirements for their identification and upgrade, fixes specifications for that upgrade, and establishes a long term objective to create the continuous pathway. Maroun relies secondly on the correspondence from the officers employed by the Council, including the various emails of April and June 2017, which at all times supported the construction of new stairs to replace the old stairs.
3. Maroun also submits that the Access Condition of the development consent for the dwelling house cannot be read to require a development consent for the construction of the stairs. To do so, Maroun submits, would effectively amount to a prohibition given that a development application for the same was refused on the basis that the stairs were prohibited development. Further, neither the POM nor any of the correspondence indicated that development consent was required, but only that upgrading of the stairs was required "to make them individually safer for public use".
4. Further, Maroun submits that the absence of appropriate delegation for Mr Belsito to grant development consent or extend the moratorium is not relevant. Instead, Maroun submits that, having regard to the emails between representatives of MPG and Mr Belsito, which culminated in his reply that "this will be acceptable", any reasonable person in the shoes of Maroun would consider that they could place weight on emails from the Director of Engineering and Works and construct the stairs accordingly. It is this conduct of the Council, and Maroun's entitlement to rely on that conduct, which Maroun says is relevant to the exercise of the Court's discretion in determining whether the order should be revoked.
5. Maroun submits that there are no safety risks that would warrant the demolition of the stairs. It points out that the experts agree that BCA compliance can be achieved by the installation of a handrail, and submits that there is no evidence to support the Council's contention that there is a risk of tidal inundation.
6. Whilst a declaration of invalidity of the order is not sought in these proceedings, Maroun submits that there are a number of aspects of the order that render it invalid. Firstly, Maroun says that the terms of the order, which requires the recipient "To demolish or remove the building, being the concrete stairs", are vague as to what stairs are being referred to. Secondly, the reasons refer only to the power that authorises the issue of the order, by stating that the concrete stairs have been erected "without a planning approval where a planning approval is required". Maroun submits that this is both an incorrect basis, given that the Council now contends that the stairs are prohibited development, and insufficient to constitute reasons for the order. In so submitting, the Council relies upon the decision of Bignold J in Van Haasteren v South Sydney Council (2000) 109 LGERA 252; [2000] NSWLEC 168, in which his Honour stated "the statutory requirement that reasons be given for an order under s 121B(1) [now Sc 5 Pt 5] will never be fulfilled or satisfied simply by stating "the circumstances" that must exist to enliven the discretionary power" (at [31]). Maroun submits that this also ought to be considered in the exercise of the Court's discretion.

The validity of the order

1. Both Maroun and the Council have made competing submissions with respect to the validity of the order. Although the power of the Court on appeal, pursuant to s 8.18 of the EPA Act and s 39 of the LEC Act (and in Class 1 of the Court's jurisdiction), does not extend to a declaration of invalidity, the question of the validity of the order is nonetheless relevant to the exercise of the Court's appeal functions. This has been dealt with by the Court in various ways. In a Class 1 appeal against an order in Barnes v Dungog Shire Council (1999) 103 LGERA 269; [1999] NSWLEC 146, Talbot J determined that the order was invalid and made an order pursuant to s 121ZK(4)(f) (now 8.18(4)(f)) that "the appeal should be upheld and pursuant to s 121ZK(f) the council ordered to treat the order as a nullity." Similarly, in another Class 1 appeal against an order, Lederer v Sydney City Council (2001) 119 LGERA 350; [2001] NSWLEC 272, Lloyd J determined that the order was invalid for its inconsistency with the Notice of Intention to issue the order and for the failure to give reasons for the order, and made consequential orders allowing the appeal and revoking the order.
2. In Imaroo Flyer Pty Ltd v Berrigan Shire Council, the Commissioner considered that the validity of the order was a jurisdictional issue and said at [24]: "because the gateway to a "de novo" hearing through section 121ZK relies on an appeal right under 121ZK(1) it must be established that the applicant has been served with an order to enliven my jurisdiction under section 121ZK(4). In other words if the Court has no jurisdiction to entertain the appeal then there can be no "de novo" hearing and the appeal may be dismissed."
3. In other words, she considered that if the order was not valid, there could be no power to entertain a merit appeal against the order. No finding of invalidity was subsequently made in those proceedings. Nevertheless, the Commissioner's consideration of it being a jurisdictional issue stands in contrast to the final orders made in Barnes v Dungog Shire Council and Lederer v Sydney City Council, each of which resulted in the appeal being upheld and the Court exercising its power pursuant to s 121ZK(4) (now s 8.18(4)) as a consequence of a finding of invalidity.
4. Indeed, when considering an appeal against an order issued pursuant to a similar regime in the LG Act in McCudden v Cowra Shire Council (2016) 216 LGERA 219; [2016] NSWLEC 14, Craig J considered that the invalidity of an order on account of a failure to give reasons did not render it a nullity for the purpose of the appeal. His Honour stated (at [150]) (emphasis added): "I conclude that an order given under s 124 of the Local Government Act, apparently meeting the requirements for giving that order under the Table to the section, but in respect of which no reasons sufficient to satisfy the requirements of s 136 have been included in or accompany the order, is not, on that account, a nullity. An order, so given, persists so as to found the jurisdiction of the Court to entertain an appeal under s 180 and to exercise the power to hear and dispose of the appeal in accordance with that section in the manner addressed by s 39 of the Court Act."
5. In reaching this conclusion, Craig J acknowledged that his findings may be seen as conflicting with Lederer v Sydney City Council.
6. There is therefore no uniform approach to dealing with the consequences of the invalidity of an order the subject of an appeal under s 8.18 (formerly s 121ZK) of the EPA Act. In two other appeals of that nature, Stutchbury v Pittwater Council (1999) 105 LGERA 1; [1999] NSWLEC 177 and Van Haasteren v South Sydney Council, the Court made findings that the order was not validly issued in the context of answering questions referred for separate determination in each case, but made no consequential orders.
7. Nevertheless, support for the approach taken by Craig J in McCudden v Cowra Shire Council can be found in the decision of the majority of the Federal Court in Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd (1979) 24 ALR 307, recently endorsed by the High Court in Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 353 ALR 600; [2018] HCA 16.
8. In Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd, the majority considered that the right to appeal to the Administrative Appeals Tribunal against a "decision" included a decision that was purported to be made regardless of whether it was valid at law. At 317, Bowen CJ (with whom Deane J agreed) explained (emphasis added): "As I have said, in my opinion an applicant to the Tribunal has standing and the Tribunal has jurisdiction provided there is a decision in fact and provided further that the decision purports to have been made in exercise of powers conferred by an enactment whether or not as a matter of law it was validly made and whether or not action on the basis there was power to make the decision was right or wrong. … In the present case the applicant established the necessary elements that there was a decision in fact and that it purported to be under an enactment or in exercise of powers conferred by an enactment, so the applicant had standing and the Tribunal had jurisdiction. When the applicant asserted the decision was legally invalid due to absence of power, he was mistaken in describing this as a "Jurisdictional point". The Tribunal had jurisdiction and was entitled to determine the legal question raised before it."
9. This approach was endorsed and applied by the High Court in Plaintiff M174/2016 v Minister for Immigration and Border Protection, in which the Court determined that a review of a "decision" reviewable under Pt 7AA of the Migration Act 1958 (Cth) extends to the review of a decision "made in fact", "regardless of whether or not that decision is legally effective" (per Gageler, Keane and Nettle JJ at [49]).
10. By the same reasoning and consistent with the approach of Craig J in McCudden v Cowra Shire Council, an appeal against a "development control order" pursuant to s 8.18 of the EPA Act extends to an appeal against a development control order purported to be issued in accordance with s 9.34(1) and the relevant table (in this case, the table to Part 1 of Schedule 5), whether or not as a matter of law the development control order was validly issued in light of the various statutory requirements for its issue (such as the requirement to give reasons). As such, whilst the invalidity at law of a development control order may be an appropriate basis on which to exercise the Court's jurisdiction to revoke the order or make alternate court orders (such as what occurred in Barnes v Dungog Shire Council and Lederer v Sydney City Council), it is not a bar to the Court's jurisdiction to consider the merits of the appeal and to exercise its discretion pursuant to s 8.18 of the EPA Act.
11. In the present appeal, there are a number of issues identified by Maroun (and described in the summary of the submissions above) that could render the order invalid at law. In relation to the first issue, I do not accept that the terms of the order are vague, as I consider that they can be understood from reading the order as a whole. In so doing, the reasons for serving the order clearly describe the concrete stairs that are referred to in the terms of the order: "Concrete stairs have been erected on the public reserve located directly at the rear of the abovementioned property without a planning approval where a planning approval is required."
12. Further, the mere fact that these reasons refer to the wrong statutory basis (from Schedule 5) for the issue of the order does not invalidate the order. This is clear from J & J O'Brien Pty Ltd v South Sydney City Council, in which Stein JA states that "if the council made a mistake as to its source of power in making the order, where an alternative source of power exists it may be relied on" (at [42]).
13. However, I accept that the reasons do no more than state the existence of the stairs, describe their location, and re-state the circumstances that must exist to enliven the power to issue the order. I do not accept that the reference to "public reserve" constitutes an adequate reason, as it simply describes the location of the stairs. I do not consider that the description of the location of the stairs and the statement of the fact that planning approval was not obtained, are sufficient reasons to satisfy the obligation (now in Pt 5 of Sch 5 of the EPA Act) to give reasons. In applying the principle as outlined in J & J O'Brien v South Sydney City Council, the statement that "planning approval was not obtained" is not adequate to inform the recipient as to why the action was taken to issue the order for demolition. Something more, by way of reasons, was required to, "make plain to the recipient the basis and reason for the decision to issue the order" (in the words of Stein JA at [47]).
14. However, adopting the approach of Craig J in McCudden v Cowra Shire Council, the order nevertheless persists so as to found the jurisdiction of the Court to entertain an appeal under s 8.18 of the EPA Act. Further, I consider that the inadequacy of the reasons bears little weight in my consideration of the merits of the appeal. This is because the statutory requirements for the order are met, and the relevant matters for the exercise of the Court's discretion, in my view, are constrained to the circumstances around the construction of the stairs.

The order should be revoked or modified

1. Despite my acceptance that the stairs were constructed in breach of the EPA Act, the Council has not persuaded me that their demolition is appropriate and I consider that the circumstances of their construction warrant the exercise of the Court's discretion to revoke the order or modify it to remove the requirement for demolition. The order should instead require the installation of a handrail and the disconnection of any electrical cables. I reach this conclusion for the following reasons.
2. Firstly, the POM specifically allows the retention of stairs previously constructed on the public reserve, subject to them being upgraded to certain specifications, and establishes a long term objective to create the continuous pathway utilising existing stairs as access points. As such, the existence of the stairs is not inconsistent with the POM, regardless of whether all the procedural requirements in the POM were met (such as the safe work method statement or the payment of a bond).
3. Secondly, the representations made by the Council through its Director of Engineering and Works, Mr Belsito, communicated to Maroun that the construction of replacement stairs was an acceptable course. Whilst I accept the Council's submission that the POM did not, prima facie, extend to replacing existing stairs with new stairs, at no time was this communicated to Maroun. The letter of 24 January 2017 conveys that it was acceptable for unsafe steps to be removed and for new stairs to be completed. This is then exemplified by the invitation, in the letter, for plans for the new steps to be "submitted within the next 6 weeks". The email correspondence on 11 April 2017 from Mr Belsito similarly communicated his agreement that plans could be sent directly to him so that he, in the words of Mr Maroun, "can approve them quicker than having to wait for the section 96". Finally, on 5 June 2017, the email to Mr Belsito specifically requests approval by stating "please see attached stair plans for your approval", to which Mr Belsito replies that the plans "will be acceptable". At no time was it communicated to Maroun that something more than the approval by Mr Belsito was required, or that the construction of new stairs was prohibited or outside the scope of the POM. Instead, the correspondence conveyed that the construction of the replacement stairs, and their design in accordance with the plans forwarded on 5 June 2017, will be acceptable.
4. Similarly, whilst I accept that Maroun did not complete the stairs within the moratorium in the specifications or within the extended timeframe contained in the letter dated 24 January 2017, the Council acted in a manner contrary to that timeframe by approving a design (by email on 5 June 2017) outside the 6 week timeframe set by the letter. In doing so, the Council implicitly conveyed that the time limit did not apply, and at no time (after the letter of 24 January 2017) was it communicated to Maroun that it would be enforced.
5. Thirdly, it was reasonable for Maroun to rely on those representations in circumstances where the Council had exercised flexibility in dispensing with any requirement for formal planning approval with respect to other stairs on the public reserve, and in extending the timeframe for the construction of the stairs in its letter dated 24 January 2017. Further, given that the representations were made by the Director of Engineering and Works, there was no unreasonableness in Maroun relying on them.
6. The fact that those representations may have contained decisions that were beyond the scope of the delegation of Mr Belsito is, in my view, irrelevant. The relevant points are instead that the representations conveyed that the construction of the stairs was an acceptable course, and that it was reasonable for those representations to be relied upon.
7. Fourthly, condition 3 of the development consent is not sufficiently specific as to what "formal approval" was required so as to put Maroun on notice that something more than an approval through the letter of 24 January 2017 and the email of 5 June 2017 was required prior to the construction of the stairs.
8. Fifthly, the Council has not established that there is a safety risk that warrants the demolition of the stairs. The agreement of Mr Barnes and Mr Walsh is that the stairs are structurally adequate, and that once a handrail is installed they will be BCA compliant. The absence of a handrail does not warrant demolition of the stairs, but instead warrants an order for the installation of a handrail. Further, the Council has not furnished any evidence that the stairs will be the subject of tidal inundation. The experts instead agreed that "the stair appeared well above any such inundation", and no further evidence of potential tidal inundation was relied upon by the Council. I accept Maroun's submission that the contention with respect to tidal inundation is merely speculative, and was not borne out by the evidence. Given that the Council raised tidal inundation in a contention that it asserts warrants the order for the demolition of the stairs, it bears the persuasive burden to establish that tidal inundation is a genuine risk. Nevertheless, I accept the Council's position that the existence of the electrical cable to provide power at the bottom of the stairs is not appropriate or required given that the stairs are in a public reserve, and I consider that the electrical cable should be disconnected and/or removed.
9. Sixthly, the fact that there is no consent for the use of the stairs is not determinative of this appeal, as the revocation or modification of the order would not operate to authorise the use of the stairs or give them planning approval. The stairs remain on the public reserve and it is a matter for the Council as to how it will manage their use, which is presently through the POM.
10. Given the existence of the POM and its inclusion of various stairs on the public reserve, I similarly do not consider that a potential breach of s 47D of the LG Act caused by the use of the stairs is determinative of the appeal. The Council manages the other stairs through the POM, and has not outlined any basis upon which its management of the use of the stairs the subject of these proceedings would be any different to that of the other stairs. No lease or licence for exclusive use exists with respect to the other stairs, and no requirement for such a lease or licence for other stairs is set out in the POM. If the Council intends to change its management of the use of each of the stairs to involve a lease or licence for exclusive use, it would be open to the Council to amend the POM to allow that to occur.
11. Finally, in circumstances where the existence of the stairs is not inconsistent with the POM, I do not accept that the stairs are so antipathetic to the objectives of the R1 zone to warrant their demolition. The POM contains a clear objective to create a promenade which will utilise existing stairs as access points, which is consistent with the third objective to enhance the natural environment for recreational purposes.

The outcome of the appeal

1. For the above reasons, I consider that the appeal should be upheld and that the order should be revoked or modified to remove the requirement for demolition. It seems appropriate for the order to be modified to require the installation of a handrail and the disconnection or removal of the electrical cables. Maroun has provided a suggested form of court orders that revokes the order upon Maroun providing to the Council a certificate from a principal certifier that the handrails have been installed. However, this does not deal with the disconnection of the electrical cable and my preferred course would be for the Court to make orders pursuant to s 8.18(4)(b) or (c) of the EPA Act, if such course is available to me. The parties have not had the opportunity to address me in that regard. Subsection (4)(b) allows the order to be modified, and (4)(c) allows the Court to "substitute for the development control order any other order that the relevant enforcement authority who gave the order could have given". If the power in s 8.18(4)(b) is constrained by reference to item 3 of Pt 1 of Schedule 5 (which it may or may not be), then the power in s 8.18(4)(c) could be exercised to substitute the order with an order consistent with item 12, for the repair of a building in a public place. I consider that an opportunity should be given to the parties to confer on and consider the final orders that would be most appropriate in light of my findings, and to address me on those orders if required.
2. I therefore make directions as follows. The Court directs that: 1. The respondent is to serve short minutes outlining its suggested final court orders on the applicant by 17 January 2020. 2. If the parties reach an agreement on the appropriate court orders to be made as a consequence of my findings, the agreed orders are to be filed by 28 January 2020, together with a short statement on what power in s 8.18(4) of the EPA Act is relied upon. 3. If no such agreement is reached on the appropriate final orders, the parties are to lodge an Online Court request by 12:00pm on 29 January 2020 setting out agreed available dates for a further court mention. 4. Liberty to restore is granted on 2 days' notice. 5. Exhibit 4 is returned.

Addendum made on 21 February 2020

1. Subsequent to my findings and in accordance with the terms of directions in [91] of my judgment of 10 January 2020, on 11 February 2020 the parties provided me with the agreed final orders that they consider to be most appropriate in light of my findings. However, those agreed orders required the Court to exercise the power to modify the development control order in a manner that retained the requirement for demolition unless the works requiring installation of a handrail and disconnection of the electrical cables were carried out within a specified period of time. As I set out in my findings, I did not consider the absence of the handrail warranted demolition of the stairs. As such, I did not consider that the agreed final orders adequately reflected my findings.
2. On the re-listing of the matter, the Council has provided me with proposed final orders that I have, with the parties' assistance, amended such that they now reflect my findings. The proposed orders require the Court to exercise the power pursuant to s 8.18(4)(c) of the EPA Act, which allows the development control order to be substituted with "any other order that the relevant enforcement authority who gave the order could have given". The substituted development control order requires the installation of the handrail and disconnection or removal of the electrical cables. The substituted order is made pursuant to items 5 and 10 of Schedule 5 Part 1 of the EPA Act.
3. I am satisfied that I have the power to substitute the order with the order that is now proposed, and that the orders that are now before me (after amendments were made with the assistance of the parties) are appropriate.
4. The Court orders that: 1. The appeal is upheld. 2. The Respondent's Development Control Order dated 11 March 2019 is substituted in accordance with s 8.18(4)(c) of the Environmental Planning and Assessment Act 1979 in the terms set out in the order annexed and marked "A" ("The Substituted Order"). 3. The Applicant shall forward to the Respondent by 14 April 2020 a certificate from a CPEng accredited engineer or appropriately accredited building certifier or building surveyor, certifying that the works referred to in paragraphs 1(a) and (b) of the Substituted Order have been carried out in accordance with the approved design and complies with relevant Australian Standards and Code.

Commissioner of the Court Annexure A (10.1 KB, pdf)

Amendments 24 February 2020 - See Addendum at [92]-[95] for final orders. 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: 24 February 2020