COMMISSIONER: This is Class 1 - Miscellaneous Appeal pursuant to s 8.18 of the Environmental Planning and Assessment Act 1979 (EPA Act) against a development control order No 2 issued by the Respondent dated 22 August 2019 (Stop Work Order) to the Applicant pursuant to s 9.34(1)(a) of, and Schedule 5 to, the EPA Act to "cease all unauthorised building works at Lot 2 DP 786805, 4 Alfred Street Lilyfield NSW 2040" (the Site).
The Respondent provides four reasons for issuing the Stop Work Order which I set out below as these reasons are relevant to the arguments and submissions made by the parties in this appeal:
"Reasons for this Order:
1. An inspection of 4 Alfred Street, LILYFIELD NSW 2040, by Council's Compliance Officers, at approximately 4:00pm on Wednesday, 21 August 2019, revealed the following building work was being carried out:
a. Demolition of the entire roof;
b. Demolition of all internal and external walls.
2. The undertaking of building works at 4 Alfred Street, LILYFIELD NSW 2040, does not satisfy the State Environmental Planning Policy (Exempt and Complying Development Codes) 2008.
3. A review of Council's records failed to reveal any evidence of a development approval being granted for the above works.
4. The undertaking of building works without prior Council consent, effectively removes the right of surrounding residents, neighbours, stakeholders and interested parties to make submissions in relation to the premises through the assessment process under the Environmental Planning and Assessment Act 1979."
In essence, the Applicant relies on the Complying Development Certificate No: 700-1015 dated 31 May 2016 including plans numbers CDC00 to CDC011, Issue F, dated 27 May 2016 (the CDC) for the "Alterations and additions to existing building to create a single dwelling house to the rear of the site with an attached secondary dwelling toward the front of the site" issued by Phoenix Building Approvals Pty Ltd. The original structure on the Site was a warehouse.
The circumstances leading up to the issue of the Stop Works Order are also relied on by the Applicant and a detailed Chronology prepared by the Applicant was marked MFI 3.
Ozaras v Inner West Council [2020] NSWLEC 1573 | Case summary | Zoe
Both parties provided written opening statements and each made oral submissions at the conclusion of hearing the evidence.
The Respondent submits in the Written Submissions marked MFI 1 (filed 1 September 2020) that:
"Under the CDC, approval was granted for works which included the retaining of the majority of the external walls and the roof of the original structure. The only walls approved for demolition under the CDC are those shown on the lower and ground floor plans; CDC 02 and CDC 03 (respectively)."
The Respondent contends that the demolition of the entire roof of the existing structure and the demolition of all internal and external walls of the existing structure are unauthorised building works:
1. Not authorised by the CDC;
2. Could not be classified as "exempt development" under the State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 (Exempt and Complying Development Code); and
3. For which no prior consent was either sought or obtained.
It is agreed between the parties that all that remains on Site is new works, being a concrete waffle slab. The Applicant advises the Court in the Applicant's Opening Statement marked MFI 2 at [21] that a building information certificate has been requested with respect to concrete piers, waffle pod slab which had been constructed at the Site prior to the issue of the Stop Work Order. I accept that the Structural Adequacy Certificate provided 31 July 2019 by Capital Engineering Consultants at folio 43 of Exhibit A, certifies compliance of these new works with certain specified design codes.
The Applicant's Opening Statement provides further at [9] that:
"9 The alteration work authorised by the CDC 700-1015 included the demolition of parts of the walls, and part of the roof ("authorised demolition work"), of the existing building at Site."
In opening oral submissions, the Applicant again agreed that some external walls and some roofing was demolished which under the CDC were to be retained.
The Applicant's Class 1 Application seeks revocation of the Stop Work Order and compensation assessed in accordance with s 8.19(1) of the EPA Act. The Applicant did not rely on evidence nor make submission in support of the claim for compensation. I am not satisfied that there is any evidence put before me to support the provisions of s 8.19 of the EPA Act and I do not make any order in favour of the Applicant for compensation.
On hearing an appeal against a development control order, s 8.18(4) of the EPA sets out the powers of the Court. Namely, 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.
The Applicant's case in relation to revocation of the Stop Work Order is set out in the Statement of Facts and Contentions in Reply filed 25 November 2019 (at folio 16 of Exhibit 1). In essence, the Applicant contends that the demolition of the walls and roof of the original structure were necessary because the walls supporting the roof had become unstable and therefore needed to be demolished but later rebuilt.
This argument, and the Applicant's evidence in support of it, sets out the circumstances around, and reasons for, the demolition. I am not satisfied that the Applicant has provided evidence to support the application to revoke the Stop Work Order. I consider the evidence and the submissions further below and give my reasons.
There were two joint expert reports tendered as follows, and both sets of expert witnesses were cross examined during the hearing:
1. Joint Expert Compliance Report filed 24 July 2020 prepared by Roberto Giglio of Inner West Council and John Romanous of John Romanous & Associated Civil & Structural Consulting Engineers for the Applicant (Exhibit 3).
2. Joint Report of Planning Experts filed 27 July 2020 prepared by Anthony Betros for the Applicant and Glen Hugo for the Respondent (Expert Planners). (Exhibit 2).
1. Supplementary Planning Report prepared by Mr Betros was filed by the Applicant on 1 September 2020 (Exhibit B);
2. Supplementary Planning Report prepared by Mr Hugo on 7 September 2020 was tendered by the Respondent and marked Exhibit 5.
Significant agreement was initially reached between the Expert Planners and set out in the Joint Report of Planning Experts. The agreement between the Expert Planners relied on by the Respondent as drawn from the Joint Report of Planning Expert at pages 3-5 and 8 is summarised in the Written Submissions MFI 1at [18], as follows:
"a) The works that were approved under the CDC, required the majority of the external walls and roof to be retained,
b) The CDC is a consent for alterations and additions and not for the construction of a new dwelling,
c) By demolishing the entire (original) structure the Applicant has lost the benefit of any consent issued under the CDC,
d) At the time the CDC was issued, there was no consent for use of the SITE for the purpose of a dwelling house,
e) The CDC did not and could not authorise a change of use from the (previous) warehouse use to a residential use,
f) The Applicant must obtain a development consent for a residential use and for any other physical or structural works, and
g) The public interest is best served if the Applicant obtains development consent for the residential use and any other physical or structural works (that may be required to be carried out in support of such use), pursuant to a development application or a new complying development certificate."
However, the Applicant relies on the Supplementary Planning Report prepared by Mr Betros which importantly was filed on the same day and shortly after the Respondent had filed its Written Submissions. Mr Hugo subsequently, prepared a Supplementary Report dated 7 September 2020 and provided comments on the Supplementary Report prepared by Mr Betros resulting in some confusion between the Expert Planners. Mr Betros, in response to cross examination regarding the content of his Supplementary Report said that the purpose of the Supplementary Report was to add to and clarify aspects in the Joint Report regarding the invalidity of the CDC. He agreed that not all demolition was authorised by the CDC.
The context of these proceedings, is that there are two other class 1 appeals on foot in relation to the Site, being:
1. Building Information Certificate Application filed 3 August 2020 (included in tab D of Exhibit A); and
2. Development Application DA/2020/0429 Class 1 Appeal (included in tab E of Exhibit A).
The Applicant submitted in opening that there is no real dispute on the facts and that the issue for the Court is the remedy available to address the demolition of the walls and roof which were to remain under the CDC. In closing oral submissions, the Applicant said that "the only issue for determination by the Court in these proceedings is the means or procedure by which those walls and the rear roof can be lawfully erected" and submits that the Court has 2 alternatives, firstly, substituting the Stop Work Order (Order 2) with a restoration order, order 10 or secondly, "that the lawful authority of the restoration of works should be by way of development consent for the erection of those walls." I do not agree that the Applicant has accurately identified the issue for determination by the Court in these proceedings. The issue for determination in these proceedings is to determine the appeal by the Applicant against the Stop Work Order by either revoking it pursuant to s 8.18(4)(a) as sought in the Class 1 appeal or by substituting it with a restoration order pursuant to s 8.18(4)(e) as submitted in closing submissions. These proceedings are not about determining the lawful erection of demolished walls and roof. For completeness, I set out the relevant provision of s 9.34 of the EPA Act and the Order 2 and Order 10 from Schedule 5 of the EPA Act below:
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,
…
I am satisfied at the outset that demolition of the entire roof was not authorised and that the CDC authorised the demolition of part of the roof only as shown in drawing CDC04 Rev F dated 27 May 2016.
I am similarly satisfied at the outset that demolition of all of the walls was not authorised and that the CDC authorised the demolition of some walls only as shown in drawings CDC02 Rev F dated 27 May 2016 and CDC03 Rev G dated 27 May 2016.
During the Proceedings, the Applicant's case evolved to seek, in the alternative, from the Court to exercise its power to substitute the Stop Work Order with an order 10 to restore the demolished walls and roof "like for like". The Respondent did not agree with this alternative and argues that "like for like" is not sufficiently certain and I accept that argument. The Applicant during closing submissions, in an attempt to assist the Court, explains that:
"there are only two courses open to you, either revoke order 2 the stop work order in its entirety, or alternatively make an order in terms of order 10 which is to restore. We would submit that that would be the sensible course. There's no identified reason why you would not do so. For example, if there were particular conditions that sought to be imposed as to the process or the detail of the order, we would see no difficulty with that. But using the words that I've used and Mr Romanous has used, it would be on the basis that it was "like for like" or "same for same". That is to say, the rebuilding so that it was exactly the same as that which was demolished in the circumstances of which you're aware."
The difficulty I have with accepting the Applicant's submission that "like for like" is sufficient wording or terms for a restoration order is that the original walls were, according to the Applicant's engineer, unstable, or otherwise unsuitable to withstand the approved alterations and additions which by necessity means that any reconstructed walls would need to be, to some extent, different, perhaps built to different standards, built to different specifications or built of different materials. In any event, that detail is not sufficiently before me in order to permit me to satisfactorily formulate a restoration order and I do not accept that the wording 'like for like' or 'same for same' is appropriate in the circumstances as set out in the evidence relied on by the Applicant. In addition, I note that the evidence discloses that the Development Application lodged by the Applicant the subject of separate proceedings seeks consent for more than mere 'like for like' restoration of walls and roof, such as the realignment of a wall and I refer to the Statement of Environmental Effects dated 28 May 2020 section 4 under tab E in Exhibit A.
I note that the Respondent's expert witness Mr Giglio did not agree, in cross examination, that an Order 10 was appropriate in this case, explaining that as consent is required to demolish walls, a restoration order would be inappropriate. He said that without consent he would not consider issuing a restoration Order 10.
The Applicant also submitted that the restoration of the walls and roof "like for like" would not result in any negative impact. The evidence of Mr Hugo in Exhibit 5 at [6] does not support this submission as he states:
"The previous building was an anomaly in the streetscape and did not maintain the front and rear setbacks of the remainder of the streetscape. A new dwelling could be required to comply with these setbacks in my opinion and this results in a negative environmental impact. A new dwelling would be required to comply with the requirements for a new dwelling."
Mr Hugo, in cross examination confirmed this opinion as well as confirming his opinion that it was not in the public interest to revoke the Stop Work Order because to do so would perpetuate the breach and at [5] and [6] of the Supplementary Planning Report he states as follows:
"[5] […] It is not in the public interest for the order to be revoked in circumstances where a consent can't be acted upon.
[6] At 1.13 I disagree with Mr Betros comments that the restoration would not generate any material impacts to the streetscape. The previous building was an anomaly in the streetscape and did no maintain the front and rear setbacks of the remainder of the streetscape. A new dwelling could be required to comply with these setbacks in my opinion and this results in a negative environmental impact. A new dwelling would be required to comply with the requirements for a new dwelling."
The Respondent's case as set out in the written submissions marked MFI1 at [17] is summarised as follows:
"17. The Respondent submits that the CDC did not authorise the demolition of any other walls, other than those approved for demolition as shown on the CDC plans CDC 02 and CDC 03. As such, the giving of the Order was warranted because the demolition of the walls and the roof are, in the Respondent's submission, in contravention of the EP&A Act."
The Applicant's expert witnesses, Mr Romanous and Mr Betros acknowledge that works have been carried out on the Site in contravention of the CDC and the EPA Act. The Respondent referred the Court to Exhibit B, Mr Betros' supplementary report at [1.6]-[1.7] and to Exhibit 3, the Joint Expert Compliance Report at [4], [5], [6], [8] and [31].
Both parties spent time in submissions on the issue of whether the CDC is void or valid. The matter for determination before me is not whether the CDC is valid or not. The case before me is also not about the permitted or change of use of the Site.
At its highest, the 'validity' or status of the CDC may be relevant in the consideration of persuasive arguments in relation to the Court exercising its discretion as to its powers under s 8.18 of the EPA Act. The Respondent argues that the Court should not revoke the Stop Work Order for the reasons set out in the Stop Work Order, whereas, the Applicant seeks revocation of the Stop Work Order or in the alternative, substitution with a restoration Order 10. The status of the CDC was addressed a number of times in evidence as follows:
1. At par [9] of the Joint Expert Planning Report where Mr Betros and Mr Hugo agreed that:
"[…] by demolishing the entire (original) structure the applicant has lost the benefit of any consent issued under CDC 700-1015 which approved alterations and additions […]"
1. Exhibit 4, Respondent's Supplementary Bundle, contains correspondence from the Respondent's solicitor to the Applicant's solicitor on 28 January 2020 and 4 September 2020. The Respondent's case is not that the CDC700-1015 is void but that new works (construction of piers and a waffle slab) are works that are not authorised by CDC700-1015 and should be authorised under a new development application.
2. Exhibit B, Mr Betros at [1.3] states:
"I agreed with the respondent's planner, Mr Hugo, that the CDC was invalidated due to removal of walls which were shown to be retained, however, I am now of the opinion that the CDC can only be invalidated by the Land and Environment Court."
1. Mr Hugo, in Exhibit 5 at [3] responds as follows:
"3. […] The joint report does not say that the CDC is invalidated, it says the "by demolishing the entire structure the applicant has lost the benefit of any consent issued under CDC 700-1015" … This is distinct in its wording and relates to the fact that a change of circumstances can occur that makes it impossible to carry out the consent. It is not my opinion that CDC 700-1015 is invalidated. It is my option (sic) that the CDC can't be carried out because it is an approval for alterations and additions to a dwelling and building that does not exist."
The Applicant made a closing submission that the Stop Work Order may be invalid or in some other way be defective as it orders the cessation of 'building works', yet the works carried out were in fact demolition.
In cross examination Mr Giglio agreed that demolition was not building work but explained that he issued the Stop Work Order in anticipation that, in addition to the new concrete slab he observed, there was to be other building work that was to take place, he specified that the Stop Work Order was issued to stop the construction of new walls and roof without consent, stopping their replacement without further authorisation. The Applicant's evidence also supports Mr Giglio's observations and conclusions in that structural plans had been prepared by Capital Engineering Consultants dated 22 May 2020 and I also refer to the detailed chronology prepared and submitted by the Applicant.
The Applicant, concedes that the advice provided by Pheonix on 7 May 2019 as detailed in the Applicant's Exhibit A might not have been correct.
[2]
Findings
I find and am satisfied that there was unauthorised building work taking place and that the issue of the Stop Work Order was appropriate in the circumstances of the Respondent becoming aware of the demolition of the walls and roof which were intended to be retained by the CDC and the observation of the newly constructed concrete slab. I find that it was proper and appropriate for the Respondent to issue an order to cease unauthorised building work in the context of the reasons given in the Stop Work Order and the reasons and observations given by Mr Giglio.
I do not agree with the Applicant's submission that the Court should substitute the Stop Work Order with a Restoration Order because on balance I find that the Stop Work Order is substantiated and is otherwise reasonable because the demolition of the entire roof and the demolition of all of the internal and external walls were not authorised by the CDC. In addition to this reason, I do not have sufficient details, specifications or terms available to me to formulate a satisfactory Restoration Order.
I am also not satisfied that a Restoration Order, as sought by the Applicant, will not result in negative impacts for the reasons given by Mr Hugo as set out above.
[3]
Orders
The Court orders that:
1. The appeal is dismissed.
[4]
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: 20 November 2020