Nader v Sutherland Shire Council

Environmental Planning and Assessment Act 1979, s 124 LEGISLATION CITED: Environmental Planning and Assessment Regulaton 2000, cl 50, sch 1 Evidence Act 1995, s 131(2)(f) and (g)

Alcoa Australia Rolled Products Pty Ltd v Weston Aluminium Pty Ltd (2006) 148 LGERA 439 Austotel Management Pty Ltd v Jamieson (1995) 57 FCR 411 Chandos Developments Pty Ltd v Mulkearns [2008] NSWCA 62 House of Peace Pty Ltd v Bankstown CC (2000) 48 NSWLR 498 Lohar Corp Pty Ltd v Dibu Pty Ltd (1976) 1 BPR 9177 McFadden v Snow (1951) 69 WN (NSW) 8 CASES CITED: Minister for Immigration and Ethnic Affairs v Kurtovic (1990) 21 FCR 193 Mulkearns v Chandos Developments Pty Ltd (No 3) (2005) 12 BPR 22,985 NSW Trotting Club Ltd v Glebe MC (1937) 37 SR (NSW) 288 Ryde MC v Royal Ryde Homes (1970) 19 LGRA 321 Thaina Town (On Goulburn) Pty Ltd v Sydney City Council (2007) 156 LGERA 150 Trade Practices Commission v Arnotts Ltd (1989) 88 ALR 69 Warringah Shire Council v Sedevcic (1987) 10 NSWLR 335

PARTIES: Paul Nader and Haifa Nader (Appellants) Sutherland Shire Council (Respondent)

COUNSEL: I Hemmings and M Seymour (A) T F Robertson SC and R O'Gorman-Hughes (R)

SOLICITORS: Burrell Solicitors (A) HWL Lawyers (Incorporating Abbott Tout Lawyers) (R)

LOWER COURT JURISDICTION: Land & Environment Court

LOWER COURT DATE OF DECISION: 23 May 2007, 18 June 2007, 1 August 2007

Sutherland Shire Council v Nader [2007] NSWLEC 363 LOWER COURT MEDIUM NEUTRAL CITATION: Sutherland Shire Council v Nader (No 2) [2007] NSWLEC 438 Sutherland Shire Council v Nader (No 3) [2007] NSWLEC 469

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40565/07 LEC 41183/06

BEAZLEY JA YOUNG CJ in EQ SACKVILLE AJA

Friday 24 October 2008 NADER v SUTHERLAND SHIRE COUNCIL Judgment 1 BEAZLEY JA: I agree with Young CJ in Eq. 2 YOUNG CJ in EQ: This is an appeal from a decision of Pain J in the Land and Environment Court. 3 The background is that on 29 December 2003, the respondent granted development consent under the Environmental Planning and Assessment Act 1979 (the EPA Act) for the erection of a two-storey dwelling and an in-ground swimming pool on land in McPherson Place, Illawong. 4 The learned primary judge found that after 8 July 2004 and before 21 July 2005, works were carried out on at that site otherwise than in accordance with the consent, namely:

(a) the roof-top lift shaft was built 300 millimetres higher than is shown on the approved drawing;

(b) the lift shaft (with attached "air-conditioning room") was built 4.23 metres longer on the eastern elevation and 6.470 metres longer along the northern and southern frontage than shown in the approved drawing;

(c) the built form of the lift shaft included windows in the southern and western elevations and two sets of glazed sliding doors in the eastern elevation which were not shown on the approved drawing; and

(d) the parapet on the roof as built was 0.33 metres higher than shown in the approved drawing. 5 The learned judge found that the unauthorised work clearly benefited the appellants in that they had gained a useable indoor and outdoor recreation space for which they did not have consent. Her Honour considered this to be significant as: "[a]n important part of the exercise of [my] discretion is to uphold the legislative purpose of the integrated and co-ordinated nature of planning law." 6 The learned primary judge made those findings when she was hearing a motion filed on 8 December 2006 brought by the respondent pursuant to which the respondent sought a declaration that the appellants had carried out development on their land contrary to the EPA Act in breach of the development consent and for an order that they be ordered to demolish and remove the unauthorised building work. 7 There was no contest against the making of a declaration and in due course her Honour made such a declaration. The contest before the learned primary judge was whether a demolition order should be made, and if so, the scope of the order. 8 On this, the learned primary judge said at [17] of her judgment: "The key issue in the case is therefore how I should exercise my discretion in determining whether orders for demolition should be made." 9 It was necessary in determining the motion that was filed by the respondent in the Land and Environment Court for the learned judge to direct her mind to s 124 of the EPA Act which provides that the court may make such order as it thinks fit to remedy or restrain the breach. 10 Her Honour referred to the judgment of Kirby P, as a member of this Court in Warringah Shire Council v Sedevcic (1987) 10 NSWLR 335 at 339. In that case Kirby P, whose decision was concurred in by Mahoney and Clarke JJA, set down nine guidelines. 11 The discretion in section 124 is expressed in wide terms and in Sedevcic it was held that it included a discretion not to order any relief in favour of the respondent. 12 The guidelines laid down by Kirby P included:

(a) the discretion is as wide as the discretion enjoyed by the Supreme Court in its equitable jurisdiction;

(b) the discretion is not to be fettered by reference to earlier cases;

(c) relevant factors include the fact that the breach complained of was purely technical which was unnoticeable other than to a person well versed in the relevant law;

(e) the fact that the breach had been shown to have had a beneficial effect;

(f) that the right involved is a public right and the council has a public duty to ensure the orderly development and use of the environment in its area; and

(g) on appeal considerable weight is given to the decision of the experienced judge in the Land and Environment Court. 13 Additionally, her Honour took into account three points made by counsel for the appellants below, viz:

(i) that there was no utility in making demolition orders in relation to the air-conditioning room as this simply meant that the facility would have to be rebuilt elsewhere;

(ii) even if demolition is ordered there would be ducting left exposed on the roof; and

(iii) that there was no utility in reducing the parapet wall down to the approved 0.95 metres above the first floor ceiling height. 14 Her Honour considered each of those three matters but rejected them as reasons for not making a demolition order. 15 The principal judgment on the motion was given on 23 May 2007 and is coded [2007] NSWLEC 363. The judge stood the matter over to enable the parties to adduce further evidence of the difficulties that might be occasioned by demolition. 16 The judge considered the matter further on 18 June 2007 in a judgment coded [2007] NSWLEC 438. On that occasion, attempts were made to produce further evidence. Her Honour permitted some further evidence but rejected the affidavit of Mr Burrell, the appellants' solicitor, sworn 8 May 2007. Her reasons, in para [4] of her judgment of that date said that this was so: "[a]s I do not consider privilege has been waived in relation to the correspondence attached to it."

She noted that the respondent had put that although the material annexed to the affidavit was marked "without prejudice", the exceptions in s 131(2)(f) or (g) of the Evidence Act 1995 allowed it to be admitted. 17 As this is one of the grounds of appeal, I will need to return to it in due course. 18 On 1 August 2007, the primary judge delivered her final judgment coded [2007] NSWLEC 469. She noted that the cost of carrying out the demolition was estimated at $48,000. The appellants had produced evidence that the cost was over $200,000 mainly due to the cost in reducing the balustrade on the roof. However, there is no actual finding as to the cost of demolition. The judge made an order that the appellants: "within 90 days, demolish and remove the unauthorised works at the subject property by: (i) removing the top of the parapet that exceeds 750 mm above the top of the first floor ceiling slab; (ii) removing those walls and areas of roof marked in hatching on Annexure A to Mr Finn's affidavit of 2 July 2007; (iii) reducing the height of the walls marked in cross-hatching on Annexure A to Mr Finn's affidavit sworn 2 July 2007 to no more than 2000 mm above the top of the first floor ceiling slab; (iv) removing the roof and any other associated structures which exceed a height 2000 mm above the top of the first floor ceiling slab; (v) remove all water closet plumbing connections and pipes to the roof."

Mr Finn is an architect: his annexure A was annexed to the order. 19 The notice of appeal contains two basic complaints against her Honour's decision, namely:

(1) Her Honour was in error in rejecting Mr Burrell's affidavit; and

(2) Her Honour was in error in finding and emphasizing that there was no development consent for unrestricted access and use of the roof area.

According to the appellants, by making these errors her Honour's discretion miscarried as she failed to take into account relevant matters and took into account irrelevant considerations. 20 The notice of appeal stated that if this Court were to come to the view that the primary judge's decision had miscarried, it should be remitted to the Land and Environment Court for re-decision. During the course of the argument on the appeal, the appellants' counsel suggested that this Court could substitute its own exercise of discretion: see Thaina Town (On Goulburn) Pty Ltd v Sydney City Council (2007) 156 LGERA 150. This was opposed by counsel for the respondent who pointed out that to exercise the discretion one would have to look at more material than was in the appeal books, and in any event, the planning provisions relevant to the area had changed since last considered by the Land and Environment Court. The Court considered that in view of these difficulties, if the exercise of discretion below was upset, the matter should be remitted to the Land and Environment Court. 21 The appeal was argued on 16 September 2008, Mr I Hemmings and Mr M Seymour appearing for the appellants, and Mr T F Robertson SC and Mr R O'Gorman-Hughes appearing for the respondent. 22 Both parties acknowledge that the decision of Pain J was a discretionary judgment and that this Court is not entitled to reverse such a decision merely because we would have decided the matter differently had we dealt with it at first instance. It was agreed that this Court can only substitute its own judgment if it is clearly satisfied that the judgment below was erroneous. Given the arguments relied on by the appellants, they can only succeed if they show that the primary judge's discretion miscarried because her Honour failed to take into account relevant considerations or erroneously took into account irrelevant considerations. 23 The learned judge summarised the essential evidence before her at paras [11] to [16] of her first judgment. The reference in what I quote below to Mr Marshman refers to the town planner retained by the appellants and to Ms Pinfold as the town planner employed by the respondent council. The judge said: "[11] Mr Marshman … gave evidence that the impact of the unauthorised work was acceptable in a town planning sense. He considered it could not be viewed from the front of the house at street level or from nearby in the street in any significant way. … . [12] He identified … a plan of the unauthorised structures and identified the location of three planter boxes intended to be used as a means of restricting access to people of parts of the roof which would overlook the neighbouring properties on either side. [13] This proposal was rejected as unsatisfactory by Ms Pinfold because it would leave the existing structures in place. … [14] The planners also agreed on various height measurements and floor areas in their joint report. They agreed that the built form on the roof top has a floor space of 84 m2 … They agree that the increase in FSR [floor space ratio] as a result of the unauthorised work is 0.077:1." 24 Mr Hemmings said that the judge wrongly found that a key issue in the proceedings was that the consent did not permit access to the roof. With respect, this was not quite accurate. In her first judgment at [18], she noted that the works as built gave the appellants benefits "in that they gain a useable indoor and outdoor recreation space for which they do not have consent on the roof of the house." Later she said at [24] that: "the reason the height of the parapet was approved at 0.95m above the first floor ceiling height … was to ensure the parapet was not high enough to be a balustrade … This together with the small windowless building approved to house the lift shaft overrun ensured that the roof was not used as a rooftop terrace. Use of the roof for the purpose of a recreation area was not sought in the respondents' development application." 25 In her third judgment at [8], she noticed that Ms Pinfold had confirmed "that the use of the rooftop as a recreation area was not sought in the development application and has not been approved by the council. That is also a finding I made in my first judgment." 26 The development consent is set out on pp 13 and following of the Blue Book. I do not need to set it all out. Page 13 notes that the development application has been determined by the granting of development consent subject to the conditions specified in the notice. The proposed development is described as "Two (2) storey dwelling and in-ground swimming pool". 27 On p 14 of the Blue Book, general conditions are set out. The first is: "The development shall be implemented substantially in accordance with the details and specifications set out on the Plan/Drawing No A1/03 …and any details on the application form and on any supporting information received with the application except as amended by the conditions specified as imposed hereunder." 28 Para 2 of the general conditions is headed "Prescribed Conditions" and says that: "The following are prescribed conditions of development consent pursuant to s 80A(11) of the EPA Act and clause 98 of the EPA Regulation 2000."

The first of these is: "A. Compliance with the Building Code of Australia The development must be carried out in accordance with the provisions of the Building Code of Australia." 29 The exact nature of the Building Code of Australia (the Building Code) was not explored before us in depth, but it is obvious that whoever was responsible for compiling it and whatever the authority for issuing it is, it is commonly relied upon by local councils, developers and others as a standard for the construction of buildings. The only part of it that is germane to the present appeal is that the requirement that if a roof area is to be used for recreational or dwelling purposes, that there must be a balustrade at least one metre high. It will be remembered that in the instant case, the authority was for a wall no more than 0.95 metres high. In fact the wall that was constructed was something like 1.15 metres. 30 There was no dispute between counsel as to how one approaches construction of a development consent. Both sets of counsel endorsed what Mason P held in House of Peace Pty Ltd v Bankstown CC (2000) 48 NSWLR 498 at 508 [41] (CA): "The enduring nature of a development consent encourages a fair but liberal reading of the rights it confers upon a landowner who may spend considerable money in acting upon it and who is likely to wish to sell the land sooner or later."

Part of the reason for this is that it has been plain law for many years: "that a consent to the development of land … is not personal to the applicant but enures for the benefit of subsequent owners and occupiers, and in some respects a consent is equivalent to a document of title."

per Else-Mitchell J in Ryde MC v Royal Ryde Homes (1970) 19 LGRA 321 at 324. 31 Mr Hemmings says that on the true construction of the development consent the roof area could be used for maintenance or even as a rooftop terrace. The consent that was granted was to use the land for a dwelling house. There was no need to specify the use for the roof. There was not in this case, as often is the case, a roof plan which has endorsed on it some statement about the use of the roof. There was simply no roof plan. There was no need to specify the use of the roof. If it was part of the dwelling, then there was consent to use the roof for any purpose. 32 Mr Hemmings submits that the only indication that the roof was not to be so used was the balustrade height of 0.95 metres. However, he puts that this matter cannot be considered when construing the development consent, otherwise one has a situation where the tail wags the dog. The Building Code creates requirements relating to how buildings are to be erected. These provisions cannot inform how a consent permits or does not permit the use of land. There is no authority which authorises one to construe a development consent with reference to the Building Code, and indeed, to do so would be to offend against the principles of construction noted above that these consents are to be read almost as a document of title and are not to be taken to be subject to any other document. 33 There are limited circumstances where one can refer to documents outside the consent when construing it; see eg Alcoa Australia Rolled Products Pty Ltd v Weston Aluminium Pty Ltd (2006) 148 LGERA 439 (NSWCA), but these cases arise infrequently. 34 However, properly read, according to Mr Hemmings, the reference to the Building Code in fact assists the appellants. The condition that the development must be carried out in accordance with the provisions of the Building Code means that even though the plans referred to in general condition 1 specify a height of the parapet wall of 0.95 metres, because the development has to be carried out in accordance with the provisions of the Building Code, one reads that as consent to increase the height of the wall to a minimum of one metre. 35 I find it a little hard to understand why this is so. The plans approved by the consent authority specified that the parapet was to be 0.95 metres in height. It is hard to follow why a general requirement that the development be carried out in accordance with the Building Code of Australia should be seen as altering the specifications incorporated in the approval plans. Why would one give priority, in the case of conflict, to a condition which merely reproduced what was required in any event over a particular condition specific to this particular development? 36 Although one must be careful of applying artificial rules relating to the construction of contracts, it must be pointed out that there are at least two principles of construction pointing in the opposite direction. The first is that where one has conflicting provisions in a contract inter vivos, one prefers the former rather than the latter; and secondly, that when one has a specific condition and a general condition, one prefers the specific rather than the general. To these, in the case of a development consent, one must add the matter that these consents are documents of title in one sense and should be construed by material wholly within them. As has been pointed out in argument, the provisions of the Building Code may very well change from month to month and it may be very difficult in time to come for a successor in title of the appellants to know what was the extent of the consent if it needs to refer back to the Building Code at an earlier date. 37 Another very strong reason as to why one should not adopt this construction is the consent granted was to the erection of a two-storey dwelling and an in-ground swimming pool. That was what the consent concerned; everything else was just a condition. The two-storey dwelling was to be substantially in accordance with the attached drawings. Had the consent been intended to encompass the construction of a building with useable living and recreation space on the third level (both inside and outside), it would not have been expressed as authorising a two-storey dwelling. 38 Counsel took us through the plans on p 230 of the Blue Book and the allied drawing on p 229 being the plans of the lay-out of the basement, ground floor and first floor of the then proposed building. The plans describe what is being erected as "proposed two-storey house". 39 As Mr Hemmings points out, there are some clear suggestions in the plan that there is something on the roof. The main indication is that the plan on p 229 shows a circular staircase around the lift well which has stairs leading upwards from the first floor. The plan on p 230 shows that these steps end in a door which opens out on to the top parapet. It is put that as the dwelling was approved in accordance with those plans, and as nothing to the contrary was said about the use of the roof, use of the roof in connection with the dwelling including recreational purposes was within the consent. 40 In any event it is put that although the balustrade is to be 0.95 metres, there is some ambiguity as to the level from which one measures the 0.95 metres. 41 Accordingly, Mr Hemmings submits that on its true construction, the consent was to the use of the roof area for recreational purposes and that her Honour misunderstood this and thus failed to take into account a consideration relevant to the exercise of her discretion. 42 Mr Robertson, however, says that one has got to look at the EPA Act and the regulations made thereunder. The Environmental Planning and Assessment Regulation 2000 (EPA Regulation), clause 50 and Schedule 1 provide that a development application has to be accompanied by prescribed documents including a sketch of the development, which must indicate, inter alia, "floor plans of any proposed building showing lay-out, partitioning, room sizes and intended uses of each part of the building." The plans and other material supplied did not include any reference whatsoever as to the use of the roof. Nor did it comply with what was required to be submitted under the EPA Regulation. A reader of the plans, including the consent authority, could readily assume that the appellants did not intend to make any use of the roof, certainly not as a recreation area. 43 As has been noted, the application was for a two-storey building and it was that application that the Council approved. The term "storey" is defined in the Sutherland Shire Local Environment Plan, as follows: "(a) the space between two floors, or (b) the space between any floor and its ceiling or roof above, or (c) foundation areas, garages, workshops, storerooms and the like, where the height between ground level and the top of the floor is above 1.5 metres or more."

This definition adds force to the conclusion that the consent was not intended to provide useable enclosed space on the third level of the building. 44 Further, the floor space ratio indicated on the approved plan is 36.5% while the maximum permitted for this particular zone is 40%. If the enclosed area on the third level were to be included, the floor space ratio would be substantially greater than 36.5%. If one took the balustrade as a wall and so included the recreation areas even though they are open to the sky, the floor space ratio would be even greater. 45 Mr Hemmings says that his calculations are that if the covered area on the roof is taken into account, the floor space ratio is still under 40%. However, it is certainly more than 36.5%. 46 Accordingly, when one looks at the consent and the plans as a matter of common sense, and with an objective assessment construed liberally, it seems to me that the only way one can construe the development consent is that it was for a two-storey building with nothing to be on the roof that was part of the dwelling area. 47 It follows, accordingly, that the learned judge was not in error in taking this matter into account. Nor did her Honour err in failing to take into account that the consent authorised use of the third level of the building. The consent did not have that effect. 48 The ground in the notice of appeal relating to the admissibility of Mr Burrell's evidence was not vigorously pressed. However, I will briefly deal with it. 49 The correspondence annexed to Mr Burrell's affidavit related to a "without prejudice" proposal put by the Council's solicitors to the appellants' solicitors for settlement of the proceedings. As Mr Hemmings explained in argument, evidence of the proposal is said to be relevant because it suggested that the Council was prepared to contemplate, as part of the settlement, that at least part of the third floor could be used for recreational purposes. 50 Although the letters referred to in the correspondence annexed to Mr Burrell's affidavit are marked "without prejudice" and would ordinarily be excluded from being received into evidence because of s 131 of the Evidence Act, the argument is that the exception in s 131(2)(g) applies, that is, if the evidence were not admitted, other material before the Court was likely to mislead the Court. A prime example (though before the Evidence Act was enacted) of such a situation is provided by Kinsella J in McFadden v Snow (1951) 69 WN (NSW) 8 at 10, where it was put that a tenant had not replied to a letter sent by the landlord. There had been a reply, but in a without prejudice letter. His Honour held that if the without prejudice letter were not admitted, it would mislead the court into thinking that there had been no reply to the landlord's letter and thus an implied admission. This Court reviewed the matter further in Lohar Corp Pty Ltd v Dibu Pty Ltd (1976) 1 BPR 9177 at 9182-3, as did Burchett J in the Federal Court in Austotel Management Pty Ltd v Jamieson (1995) 57 FCR 411 at 415-416. I endeavoured to do so in Mulkearns v Chandos Developments Pty Ltd (No 3) (2005) 12 BPR 22,985 at 23,000 (appeal dismissed [2008] NSWCA 62 though this point was not considered on appeal). 51 To qualify under the exception in (g), the relevant material must be presented where otherwise the court is likely to be misled by the existing evidence. If the only matter to which this evidence was directed was whether the judge misunderstood the construction of the development consent, it would not qualify under s 131(2)(g) as questions of construction could not be affected by what the parties later discussed. However, the notice of appeal puts it slightly differently, that is, that the learned judge may have been misled as to the need for demolition in the public interest because in fact the respondent was in negotiations prepared to agree to something short of full demolition. Mr Hemmings says that if one looks at the material in Mr Burrell's affidavit and the plans, the respondent's proposal would have left the appellants with some usable area of the roof without it being contrary to the public interest or to the detriment of neighbours. 52 Mr Robertson says that that is not the way in which one reads the respondent's proposal. It says absolutely nothing about the roof areas not referred to as areas 5 on the sketch accompanying the respondent's letter. This seems to me to be correct. Moreover, as Beaumont J made clear in the Arnotts case (Trade Practices Commission v Arnotts Ltd (1989) 88 ALR 69 at 74), one must be particularly careful in not giving too much significance to statements made during the course of negotiations. 53 Furthermore, one must remember that so far as a council's public duty is concerned, it is rare to permit anything like an estoppel to be upheld against that duty: see eg NSW Trotting Club Ltd v Glebe MC (1937) 37 SR (NSW) 288; Minister for Immigration and Ethnic Affairs v Kurtovic (1990) 21 FCR 193, 215 (FC) per Gummow J. 54 Although at first blush the material might appear to be within a possible category of material covered by the exception under s 131(2)(g), the particular material relied on would not counter material which was otherwise likely to mislead the judge. 55 Accordingly, the arguments put in favour of the appeal fail and the appeal must be dismissed with costs. 56 SACKVILLE AJA: I agree with Young CJ in Eq.

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