Queanbeyan-Palerang Regional Council v Alaa Abutaleb Pty Ltd

Cases Cited: Ajvadi v Wicks (No 2) [2024] NSWLEC 44
PAG Services Pty Ltd v Byron Shire Council [2023] NSWLEC 40

Category: Principal judgment

Parties: Queanbeyan-Palerang Regional Council (Applicant)
Alaa Abutaleb Pty Ltd (First Respondent)
DJH Canberra Pty Ltd (Second Respondent)
Forge & Co Pty Ltd (Third Respondent)
Hano Group Pty Ltd (Fourth Respondent)

Representation: Counsel:
C Koikas (Applicant)
No appearance (First Respondent)
Submitting appearance (Second Respondent)
Submitting appearance (Third Respondent)
Submitting appearance (Fourth Respondent)
Solicitors:
Shaw Reynolds Lawyers (Applicant)
BDN Lawyers (Second Respondent)

File Number(s): 2024/00305128

Publication restriction: Nil

JUDGMENT

1. The First Respondent was granted development consent by Queanbeyan-Palerang Council for the construction of a dwelling and swimming pool at 24 Nelson Terrace Bungendore on 29 June 2023. The Council commenced these civil enforcement proceedings on 19 August 2024 alleging multiple breaches of development consent DA.2023.0143 and seeking a declaration of a breach of s 4.2 of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) inter alia.

2. The Class 4 application was commenced on 19 August 2024. Interlocutory orders were made on 20 March 2025 that the First Respondent demolish existing walls and construct alternative works. The First Respondent was represented by lawyers until 13 May 2025 when a Notice of Ceasing to Act was filed. No representative of the First Respondent appeared at the hearing. The First Respondent’s registered office was served with notice of the hearing in accordance with Court orders and there has been email correspondence with its director by the Council’s solicitor in relation to the hearing date inter alia. The hearing proceeded ex parte. The Council bears the onus of establishing that a declaration and orders ought to be made.

3. The failure to comply with the conditions of development consent if established are breaches of s 4.2 of the EPA Act. A further breach of the EPA Act also alleged is in relation to the Environmental Planning and Assessment Regulation 2021 (NSW) (EPA Regulation) s 74, Shoring and adequacy of adjoining property.

Further amended summons

4. The further amended summons seeks:

(1) A declaration that in breach of section 4.2(1)(b) of the EPA Act, the First Respondent has carried out development at Lot 52 in Deposited Plan 1282739, known as 24 Nelson Terrace, Bungendore NSW, purportedly in reliance on Development Consent No. DA.2023.0143 issued by the Applicant on 29 June 2023 (Consent), but not in accordance with:

(a) conditions 4, 15, 16 17, 18, 19 and 20 of the Consent; and

(b) clause 74 of the EPA Regulation.

(2) Within 28 days of the date of these orders, the First Respondent is to pay the Applicant $98,670.35, being the costs incurred by the Applicant in undertaking the remedial works referred to and quantified at paragraph [6] and Annexure A of the Affidavit of Melinda Corey affirmed 11 September 2025, respectively, at Lots 44, 45, 46, 51 and 52 in Deposited Plan 1282739 between 5 March and 4 April 2025 consequent upon the breaches referred to in Order 1.

(3) Orders (1) – (4) made by Beasley J on 20 March 2025 are vacated.

(4) The First Respondent pay the Applicant’s costs as agreed or assessed.

5. Four neighbours of Lot 52 DP 1282739, the owners of Lots 44, 45, 46 and 51 in DP 1282739 were joined as necessary parties on 19 August 2024 and have filed submitting appearances. The following figure illustrates the relationship of the various lots to Lot 52 DP 1282739 (24 Nelson Street Bungendore) which benefits from the development consent. The Council’s easement for stormwater and sewerage is identified at the rear of Lots 44, 45, and 46 adjoining Lots 51 and 52.

Environmental Planning and Assessment Act 1979 (NSW)

6. The Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) states:

Part 4 Development assessment and consent

Division 4.1 Carrying out of development – with consent, without consent and prohibited

…

4.2 Development that needs consent

(1) General If an environmental planning instrument provides that specified development may not be carried out except with development consent, a person must not carry the development out on land to which the provision applies unless—

(a) such a consent has been obtained and is in force, and

(b) the development is carried out in accordance with the consent and the instrument.

Maximum penalty—Tier 1 monetary penalty.

Environmental Planning and Assessment Regulation 2021 (NSW)

7. The Environmental Planning and Assessment Regulation 2021 (NSW) (EPA Regulation) states:

Part 4 Determination of development applications

…

Division 2 Conditions of development consent – the Act, s 4.17(11)

Subdivision 1 Development generally

…

74 Shoring and adequacy of adjoining property

(1) This section applies to a development consent for development that involves excavation that extends below the level of the base of the footings of a building, structure or work on adjoining land, including a structure or work in a road or rail corridor.

(2) It is a condition of the development consent that the person having the benefit of the development consent must, at the person’s own expense—

(a) protect and support the building, structure or work on adjoining land from possible damage from the excavation, and

(b) if necessary, underpin the building, structure or work on adjoining land to prevent damage from the excavation.

(3) This section does not apply if—

(a) the person having the benefit of the development consent owns the adjoining land, or

(b) the owner of the adjoining land gives written consent to the condition not applying.

Conditions of development alleged to be breached

8. The Council submitted the following conditions of development consent DA.2023.0143 were breached:

General conditions

Condition 4 Obtain Construction Certificate

Obtain a construction certificate from Queanbeyan-Palerang Regional Council or an appropriately accredited private certifier before undertaking any work. Forward a copy of any construction certificate issued by a private certifier to Queanbeyan-Palerang Regional Council at least 2 days before undertaking any work in accordance with that construction certificate.

…

Conditions to be satisfied prior to issue of construction certificate

Condition 15 Protection of Council/Stormwater Easements

Prior to the issuing of a Construction Certificate (Building) structural plans must be provided to Council for concurrence as the sewer and water authority. The plans are to demonstrate that the footings of the structure will not be located within the zone of influence of Council’s sewer and stormwater easements.

Reason: To allow for safe access and maintenance of services within the easements by Council personnel.

Conditions to be satisfied prior to commencement of works

Condition 16 Appoint PCA (Building)

Appoint a principal certifying authority before any work is undertaken. Provide details of the appointed principal certifying authority (if not Queanbeyan-Palerang Regional Council) to Queanbeyan-Palerang Regional Council at least 2 days prior to any work being undertaken.

Reason: To provide for supervision of the subdivision works.

Condition 17 Development Contributions to be Paid

Prior to the lodgement of the Notice to Commence Work and Appointment of a Principal Certifying Authority the contributions specified in Schedule 1 of this consent must be paid to Council under the provisions of Section 7.11 or 7.12 of the Environmental Planning and Assessment Act 1979.

Reason: To provide for the funding of augmentation and provision of services and community facilities.

Condition 18 Site Identification

The site where building work, subdivision work, or demolition work are proposed to be carried out shall be identified by a sign sited in a visually prominent position containing the following information:

(a) the development application number,

(b) Name, address and telephone number of the principal certifying authority,

(c) Name of the principal contractor (if any) and 24-hour contract telephone number, and a statement that “unauthorised entry to the work site is prohibited”.

Reason: To satisfy the provisions of Clause 136B and 227A of the Environmental Planning and Assessment Regulation 2000.

Condition 19 Home Building Act Requirements

Residential building work within the meaning of the Home Building Act 1989 must not be carried out unless the Principal Certifying Authority for the development to which the work relates (not being the council) has given Council written notice of the following information:

(a) In the case of work for which a principal contractor is required to be appointed:

(i) the name and licence number of the principal contractor.

(ii) The name of the insurer by which the work is insured under Part 6 of that Act.

(b) in the case of work to be done by an owner-builder:

(i) the name of the owner-builder

(ii) if the owner-builder is required to hold an owner-builder permit under that Act, the number of the owner-builder permit.

Reason: This is a prescribed condition under the provisions of clause 98B of the Environmental Planning and Assessment Regulation 2000.

Condition 20 Sediment and Erosion Control Plan

A Sediment and Erosion Control Plan (S&CP) for all site works, including road works and access, is to be approved by the principal certifying authority prior to work commencing. The plan is to cover all measures to control erosion and sediment transport in accordance with the NSW Landcom publication Managing Urban Stormwater – Soils and Construction (4th Edition 2004 – “Blue Book”).

Erosion and sediment controls are to be in place before the disturbance of any soils on the site and are to be maintained during the works and for as long as necessary after the completion to prevent sediment and dirty water leaving the site and/or entering the surface water system outside the site.

Reason: To minimise environmental impact associated with any works & to prevent soil erosion/water pollution.

9. Evidence supporting a finding of a breach of the EPA Act was provided in the affidavits of Ms Corey council officer. Her affidavit sworn 16 September 2025 identified the conditions breached set out above and confirmed:

10. no Council record of a construction certificate (breach of condition 4);

11. no Council record of structural plans being submitted for concurrence or approval showing that the proposed footings would be clear of the Council’s sewer and stormwater easement (breach of condition 15);

12. no Council record of a principal certifying authority (PCA) being appointed or notified to the Council before excavation and building work commenced (breach of condition 16);

13. no written notice from a PCA identifying the principal contractor, licence and insurance details was received by the Council (breach of condition 19);

14. no payment of contributions specified in Schedule 1 of the development consent had been made to the Council (breach of condition 17);

15. no sign including with any information required to be identified displayed on the site as confirmed in photographs of site inspections by Council officers on numerous occasions (breach of condition 18); and

16. no Council record of sediment and erosion control plan approved by PCA (breach of condition 20).

17. The Council’s staff undertook eight site inspections commencing on 5 December 2023 and identified the extensive unlawful earthworks undertaken on Lot 52 which substantially damaged stormwater and sewerage infrastructure in the Council’s drainage easement and rendered them unusable at the rear of Lots 44, 45, and 46. This was detailed in records of site inspections including photographs taken on 5 December 2023, 1 March 2024, 5 June 2024 and 6 June 2024. In relation to undermining of the retaining wall on Lot 51, being the failure to shore up adjoining land on Lot 51 as required by cl 74 of the EPA Regulation, this was clearly identified in a site inspection on 24 February 2025 with accompanying photographs included in evidence. Particular reference to observations and photographs on these site inspections was contained in the exhibits to Ms Corey’s affidavit dated 11 September 2025 to which the Court was referred.

18. The affidavit of Ms Corey dated 20 November 2024 identified the emergency work undertaken by the Council in view of the extensive damage to stormwater and sewerage infrastructure in the Council’s easement which rendered that infrastructure unfit for use. The costs of doing the work of $98,670.35 which the Council has paid to civil engineering contractors is identified in the invoices annexed to that affidavit.

Excavation not exempt development

12. The Council submitted that the excavation was not exempt development under the State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 (NSW) (Codes SEPP). As the Council submitted the earthworks undertaken (cut and fill) well exceeded the 600mm referred to as being exempt in cl 2.30(a), Development standards. The Council’s evidence established that cuts greater than 2m below natural ground level were carried out on Lot 52. The Queanbeyan-Palerang Regional Local Environmental Plan 2022 (NSW) applies and requires in cl 7.1(2) that development consent be obtained for earthworks unless they are exempt development. No necessary development consent was obtained and that failure is a further breach of s 4.2 of the EPA Act.

13. The breach of s 4.2 of the EPA Act is established on several bases.

Declaration ought be made

14. The declaration sought will be made as this is warranted in the circumstances. The Council has established multiple breaches of s 4.2 of the EPA Act by the First Respondent and that has resulted in substantial impact on the Council’s infrastructure and neighbouring lots. As identified in PAG Services Pty Ltd v Byron Shire Council [2023] NSWLEC 40 at [73]-[75] and Ajvadi v Wicks (No 2) [2024] NSWLEC 44 at [38] a proper contradictor whose interest is affected is desirable where a declaration is contemplated. The First Respondent has participated through legal representatives for much of the proceedings. That it chose not to appear at the final hearing is not a reason not to make the declaration sought.

Recovery of costs of Council’s emergency work

15. The Council exercised its power under s 59A of the Local Government Act 1993 (NSW) to undertake emergency stabilisation works which included batter slope regrading, sewer protection measures and temporary stormwater works. It seeks the costs of doing so to be payable by the First Respondent.

16. The Council relied on the jurisdiction conferred in broad terms by s 23 of the Land and Environment Court Act 1979 (NSW) which states:

23 Making of orders

The Court has power, in relation to matters in which it has jurisdiction, to make orders of such kinds, including interlocutory orders, as the Court thinks appropriate.

17. As to jurisdiction, s 9.46 of the EPA Act provides that the Court may make an order as it thinks fit to remedy or restrain any breach of the Act where a breach has been established. A breach, indeed several breaches have been established. Subsection (2) states that without limiting the Court’s powers various orders can be made, further supporting the wide scope of the Court’s powers.

18. I accept the Council’s submissions that while the remedy originally sought by the Council was having the First Respondent undertake the necessary work to repair the damage to stormwater and sewerage infrastructure, the necessity for it to act has meant that it has incurred the cost of remedying the breach. That cost would usually be borne by the First Respondent. Making the order for payment sought is an appropriate use of the Court’s powers in s 23 in light of s 9.46 of the EPA Act.

Vacation of orders for injunctive relief dated 20 March 2025 appropriate

19. On 20 March 2025, the Court granted injunctive relief (by consent) and ordered, inter alia, that the First Respondent demolish the retaining walls erected at the First Respondent’s Land and to construct new retaining walls according to certain specifications.

20. The First Respondent, represented by counsel at the time the 20 March 2025 orders were made, has failed to comply with those orders. No demolition or reconstruction works were carried out by the First Respondent in compliance with the 20 March 2025 orders.

21. On 21 August 2025, the Council filed the single expert report of Leigh Appleyard. Mr Appleyard espoused that retaining walls are no longer an appropriate way to remedy the breaches and that the better view is to add fill to the site to fill the excavation using Virgin Extracted Natural Material in accordance with AS 3798. The rationale is that the latter approach is a more suitable (and permanent) way to remedy the breaches that have occurred.

22. It follows that at prayer 3, orders (1) – (4) made by Beasley J on 20 March 2025 will be vacated.

Costs

23. The usual order in Class 4 matters of this kind is that costs follow the event. As the successful party the Council should have its costs paid by the First Respondent.

Orders

24. The Court declares and orders:

25. A declaration that in breach of section 4.2(1)(b) of the EPA Act, the First Respondent has carried out development at Lot 52 in Deposited Plan 1282739, known as 24 Nelson Terrace, Bungendore NSW, purportedly in reliance on Development Consent No. DA.2023.0143 issued by the Applicant on 29 June 2023 (Consent), but not in accordance with:

(a) conditions 4, 15, 16 17, 18, 19 and 20 of the Consent; and (b) clause 74 of the EPA Regulation.

2. Within 28 days of the date of these orders, the First Respondent is to pay the Applicant $98,670.35, being the costs incurred by the Applicant in undertaking the remedial works referred to and quantified at paragraph [11] and Annexure A of the Affidavit of Melinda Corey affirmed 11 September 2025, respectively, at Lots 44, 45, 46, 51 and 52 in Deposited Plan 1282739 between 5 March and 4 April 2025 consequent upon the breaches referred to in Order 1.
3. Orders (1) – (4) made by Beasley J on 20 March 2025 are vacated.
4. The First Respondent must pay the Applicant’s costs within 28 days as agreed or assessed.

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