Sader v Elgammal

Facts

1. Prior to the grant of the DC and the undertaking of work the Site had a wall located toward the interface between the First and Third Respondent's land. The said wall was constructed in part over an existing natural rock face and comprised an area of render, as well as an area of stone with a glass balustrade above. The said wall extended perpendicular and between the two side boundaries and was at the point where the land had a change in level between the upper area on the First Respondent's land and the lower area on the Third Respondent's land. The said wall is depicted in the photograph below and will be referred to as The Wall: Figure 1: Exhibit F, page 2 (folio 1331): View of 26 Bowden Crescent, prior to commencement of recent works, from an elevated drone position above the waterway showing swimming pool, jetty and boatshed in the foreground. No. 24 Bowden Crescent is to the left of the picture (Source realestate.com, 2013)
2. The DC related only to the Site; in that it did not seek approval for work on the Third Respondent's land. The DC approved development for the purpose of "Demolition works and construction of a dwelling house (existing boathouse and swimming pool to be retained)". The DC granted consent for the development as indicated in the nominated plans subject to conditions.
3. The CC was issued by the Second Respondent on 17 November 2021.
4. The First Respondent has commenced work on the Site, including the following works: 1. Demolition of the Wall such that no portion of the Wall remains on the Site; 2. Excavation of the natural rock face which existed below the Wall on its south/eastern end and the rock face behind the boatshed between the two staircases depicted in Figure 1; 3. The demolition of the two staircases between the upper terrace area and the pool deck/boatshed and the construction of a new staircase; 4. The construction of the Northern Slab; and 5. The construction of the Southern Slab. (Collectively referred to as the Disputed Works).

Issues for determination

1. In essence the remaining dispute relates to whether the First Respondent was lawfully entitled to carry out the Disputed Works.
2. By the Final Amended Summons the Applicants sought declarations in the following terms: 1. Declarations that pursuant to sections 9.46(1) and 6.32 of the Environmental Planning and Assessment Act 1979 (EPA Act): a) the plans and specifications or standards of building work specified in the Construction Certificate CCC-26BOW/2021 issued by the Second Respondent on 17 November 2021 (Construction Certificate) are not consistent with the development consent DA 2020/0430 granted on 7 October 2021 by the Georges River Council for demolition works and construction of a dwelling house (2021 Consent) for the relevant building work; and b) to the extent that the Construction Certificate contains the landscape plans prepared by Dapple Designs Revision D dated 21 October 2021, it is invalid and of no effect. 2. A declaration that the First Respondent is in breach of sections 4.2(1)(a) and 4.2(1)(b) of the EPA Act by: a) carrying out works otherwise than in accordance with the 2021 Consent and the Construction Certificate on land at Lot 13 DP 14844 located at 26 Bowden Crescent, Connells Point (Site); and b) carrying out works without consent, comprising: i) the construction of concrete slabs between the foreshore building line and the mean high water mark (MHWM) applicable to the Site (Foreshore Building Area) and below the MHWM in a manner that is inconsistent with the 2021 Consent and the Construction Certificate; and ii) the excavation and removal of rock walls, retaining walls and other works in and adjacent to the Foreshore Building Area in a manner that is inconsistent with the 2021 Consent and the Construction Certificate. 3. A declaration that the First Respondent is in breach of sections 4.2(1)(a) and 4.2(1)(b) of the EPA Act by: a) carrying out building works otherwise than in accordance with the 2021 Consent (or a relevant development consent) on land below the mean high water mark (MHWM) adjacent to the Site and owned by the State of NSW; and b) carrying out works without consent, comprising the construction of concrete slabs.
3. A determination of whether the Applicants have established the relevant matters such that it would be entitled to such declarations requires a determination of the following questions: 1. Upon a proper construction of the DC were the Disputed Works authorised to be carried out? 2. If not, to the extent that the CC authorised the carrying out of all or part of the Disputed Works was it invalid in that it was not consistent with the DC? 3. To the extent that the Disputed Works comprised work that was not authorised by either the DC or the CC were such works development carried out in breach of the provisions of the Environmental Planning and Assessment Act 1979 (NSW) (EP&A Act) in that they were development for which development consent was required and not obtained?
4. If breach is established it is then necessary to consider, in the exercise of the Court's discretion pursuant to s 9.46 of the EP&A Act, what relief, if any, is appropriate and the form of any relevant declarations and orders.

Evidence of breach

1. A large volume of documentary evidence was tendered dealing with the issues relating to breach. Those documents included (for the purposes of the remaining issues in dispute): the DC; the CC; the Council officer's assessment report; the Statement of Environmental Effects that accompanied the development application; the Kogarah Local Environmental Plan (Kogarah LEP); and a large number of photographs.
2. From that documentary material the parties relied upon the following matters derived for the purposes of the proper construction of the DC.
3. Condition 1 of the DC provided: 1. Approved Plans - The development must be implemented in accordance with the approved plans and supporting documentation listed below which have been endorsed by Council's approved stamp, except where marked up on the plans and/or amended by conditions of this consent: …[table of approved plans then listed].
4. Of the listed plans that contained a depiction of the Wall it was identified on all but one of these plans as not being the subject of any proposed change. In particular, the Proposed Site Plan; Demolition Plan; Cut and Fill Plan; Stormwater Plans all depicted the Wall as being retained. The only plan that indicated a contrary position was the Erosion and Sediment Control Plan that coloured the Wall as being demolished.
5. The Survey Plan which was identified as an approved plan in condition 1 illustrated the change in level and the extent and location of the Wall. The Survey Plan also indicated that the Wall was the only structure near the interface of the boundary between the First and Third Respondent's land that was not located on or near a side boundary of the First Respondent's land.
6. The CC plans contained the same depictions as was identified in the DC plans with the exception of the Erosion and Sediment Control Plan that, contrary to the same plan in the DC, in the CC depicted its retention.
7. On none of the approved plans was the Wall specifically identified as a "rear retaining wall".
8. As identified in condition 1 of the DC the development depicted in the approved plans was capable of being amended by the conditions imposed upon the DC. Of particular relevance to the determination of these proceedings, the parties relied upon the following conditions: 10. Required design changes - The following changes are required to be made and shown on the Construction Certificate plans: … 5) Details, including an elevation and materials detail are to be provided to the satisfaction of the Principal Certifying Authority. These details are to show a transparent or open fence compliant with pool fencing requirements of a height not greater than 1.2m for its length in the position shown on the Landscape Plan Drawing No. SB_26BC_10 Issue B on the plan titled "Lower Ground Floor Plan". … 14. Structural Integrity of existing brick boundary fences and rear retaining wall - The existing brick boundary fences and rear retaining wall at 26 Bowden Crescent shall be protected and retained. Prior to a commencement of demolition, excavation or construction work, a report or certification from a practicing structural engineer must be submitted to and approved by the PCA detailing the method of protection and any structural works required (such as underpinning) to the existing brick boundary fences. The report must explain how the brick fences are to be protected and retained, supported and not undermined by the proposed development. … 16. Pre-Construction Dilapidation Report - Private Land - A professional engineer specialising in structural or geotechnical engineering shall prepare a Pre-Construction Dilapidation Report detailing the current structural condition of adjoining premises including but not limited to: (a) All neighbouring buildings likely to be affected by the excavation as determined by the consulting engineer. (b) All retaining walls and masonry boundary fences at 26 Bowden Crescent that are to be retained. The report shall be prepared at the expense of the applicant and submitted to the satisfaction of the Certifying Authority prior to the issue of the Construction Certificate. … 24. Landscape Plans - A detailed landscape plan, drawn to scale, A3 size and coloured, by a qualified landscape architect or an AQF Level 5 landscape designer, must be submitted prior to the issue of the Construction Certificate. The plan must include: a) In accordance with Georges River Tree Management Policy 2019, a 2:1 Policy is to be implemented. For every one (1) tree to be removed, two (2) trees shall be planted on the subject site to compensate for the loss of each tree. If Council finds that locations within the site cannot be found for the trees viability, an offset fee shall be forwarded to Council to plant the tree/s elsewhere, within the municipality. b) For the removal of five (5) Callistemon viminalis a total of ten (10) trees must be reflected upon the landscape plan and planted within the site and be a minimum 75 litre pot/ bag size. c) Three (3) trees located within the deep soil zones fronting the site. d) Four (4) trees planted within the Lower ground floor, whilst three (3) trees planted within the ground floor. e) Location of existing and proposed structures, services and existing trees to be retained and /or removed. f) Details of earthworks including mounding and retaining walls, Reduced Levels and planter boxes; g) Location of proposed trees and plants proposed as well as a plant schedule showing the plant symbol, botanical name/ common name; quantity; pot size; and mature height x width. h) A higher proportionate mix of natives than exotics plantings, with all trees proposed, able to reach a height at maturity of nine (9) metres. i) Tree species selection from - Georges River Councils, Tree Management Policy, April 2019, Appendix 1 - Tree Planting. j) Details of planting specifications, procedures and a maintenance schedule for twelve (12) months; k) Landscape ratios - pervious to impervious surfaces / deep soil zones l) Details of drainage and watering systems; m) Details of garden edging and turf; and n) Any required fencing, retaining walls and other structures not shown on other approved architectural and engineering plans. o) The contact details and website of the landscape architect or AQF Level 5 landscape designer, as well as qualifications. p) Associations and / or Memberships of Affiliation within the landscape industry.
9. Whilst the landscape plan referred to in condition 10(5) was not identified in condition 1 as an approved plan the parties agreed that it was a plan to which reference could be made so as to understand the requirement of that condition in so far as it referred to the position of a fence on a nominated plan. That plan indicated by reference to a plan (not an elevation) that the location of the proposed fence was to be in the location of the Wall.
10. In addition to the documentary evidence the Applicants also called evidence on the issue of breach from Mr Layman, architect and town planner; and Mr Cechellero, surveyor.
11. The First Respondent called evidence on the issue of breach from Mr Davidson, surveyor.

Is the CC consistent with DC?

1. Section 6.4(a) of the EP&A Act provides that a construction certificate is: a certificate to the effect that building work completed in accordance with specified plans and specifications or standards will comply with the requirements of the regulations.
2. Section 6.7(1) of the EP&A Act provides that a construction certificate is required for the erection of a building in accordance with a development consent. Section 6.8(1)(a) provides that a construction certificate must not be issued with respect to the plans and specifications for any building work unless "the requirements of the regulations have been complied with."
3. At the time the CC was issued, the now repealed Environmental Planning and Assessment Regulation 2000 (NSW) (Regulation) was in force. At all relevant times, Pt 8 Div 2 applied to construction certificates. Within that division, cl 145 provided: 145 Compliance with development consent and Building Code of Australia (1) A certifier must not issue a construction certificate for building work unless - (a1) the plans and specifications for the building include such matters as each relevant BASIX certificate requires, and (a) the design and construction of the building (as depicted in the plans and specifications and as described in any other information furnished to the certifier under clause 140) is consistent with the development consent, and (b) the proposed building (not being a temporary building) will comply with the relevant requirements of the Building Code of Australia (as in force at the time the application for the construction certificate was made).
4. The requirement of "consistency" as referred to in cl 145(1)(a) was inserted into the Regulation on 1 December 2019. Prior to the amendment cl 145 used the phrase "not inconsistent with" the development consent.
5. A construction certificate may be declared to be invalid as provided for in s 6.32 of the EP&A Act which provides: 6.32 Validity of certificates under this Part Without limiting the powers of the Court under section 9.46(1), the Court may by order under that section declare that a certificate under this Part (other than an occupation certificate) is invalid if - (a) proceedings for the order are brought within 3 months after the issue of the certificate, and (b) the plans and specifications or standards of building work or subdivision work specified in the certificate are not consistent with the development consent for the building work or subdivision work.
6. For the purposes of Pt 6 of the EP&A Act "building work" is defined as meaning: building work means any physical activity involved in the erection of a building.
7. There is no dispute in this case that the proceedings were brought within three months after the issue of the CC as the CC was issued on 17 November 2021 and the proceedings were commenced on 8 February 2022. Therefore, the only question for determination is whether the plans and specifications of the building work approved in the CC are not consistent with the DC for building work.
8. The Applicants contend that the CC is inconsistent with the DC in so far as it makes provision for: 1. the removal of the Wall, 2. The excavation of the natural rock; 3. The erection of a slab on the southern rear boundary; and 4. The demolition of the two sets of existing stairs between the upper level and the pool deck/boathouse and the construction of works comprising new stairs and associated structures adjacent to the boatshed at the level of the pool deck.
9. These works that are contended to be inconsistent with the DC are only provided for in the CC Landscape Plans identified in the CC as the approved plans: Landscape Designs, Prepared by Dapple Designs, Issue D Dated 21 October 2021. Reference Number LPI01, Street Number 1-12 inclusive.
10. In order to ascertain whether the CC is consistent with the DC it is necessary to determine what the DC approved in so far as it related to those works and then determine what works were authorised by the CC and, thereafter, determine whether the CC works were consistent with the works approved by the DC.

Applicants' submissions

1. A construction certificate will not be consistent with a development consent where there is an inconsistency between the two instruments. The references in the EP&A Act to the construction certificate not being consistent is a change in the legislative language intended to require a satisfaction of something other than what has in the past been regarded as an "inconsistency", such as that considered in Coffs Harbour Environment Centre Inc v Ministers for Planning and Coffs Harbour City Council (1994) 84 LGERA 324 where such concept was held at 331 to mean: The term "inconsistency" in s 36 of the Act is to be construed having regard to the ordinary meaning of the word. It was suggested during argument that the term ought be approached in a manner similar to that adopted when considering the operation of s 109 of the Australian Constitution. It is not necessary to pursue that suggestion in order to resolve the dispute now before the Court. In any event, it is, in my view, inappropriate to apply the law governing the operation of s 109 of the Australian Constitution to s 36 of the Act. In general terms, s 109 of the Australian Constitution concerns, to the extent of any inconsistency, which law prevails and which law is made invalid as between the laws of at least two organs of the Federation purporting to make laws dealing with the same subject matter. Here the dispute concerns, to the extent of any inconsistency, which of at least two laws enacted by or made under the same legislature is to prevail. The resolution of this dispute requires only that the word "inconsistency" be given its ordinary and natural meaning without the gloss which has necessarily developed around the meaning of the word in a constitutional setting. Upon that basis, there will be an inconsistency if, in the provisions of one environmental planning instrument, there is "want of consistency or congruity"; "lack of accordance or harmony" or "incompatibility, contrariety, or opposition" with another environmental planning instrument. Upon that understanding of the term, if the Coffs Harbour Local Environmental Plan 1988 (Amendment No 21) were found to breach, or to involve non-compliance or otherwise disharmonious effect and operation as against the regional environmental plan, this would be evidence of an "inconsistency" of the type to which s 36 of the Act refers.
2. The phrase "not consistent with" should be regarded as a stricter requirement than "inconsistent with". The change in language together with the insertion of s 6.32 indicates that a construction certificate must align more strictly with the terms of a development consent than merely being able to operate harmoniously.
3. An examination of the evidence in this matter will lead to a determination of the proper construction of the DC that it required the retention of the Wall, the rock face and the existing stairs. To the extent that the CC indicated otherwise it was not consistent in the relevant sense with the DC and is invalid.
4. One of the principles of construction of a development consent is that as expressed in Parramatta City Council v Shell Co of Australia Ltd [1972] 2 NSWLR 632 at 637F that: The nature and extent of the approved development must be determined by construing the document of approval, including any plans or other documents which it incorporates, aided only by that evidence admissible in relation to construction which establishes, or helps to establish, the true meaning of the document as the unilateral act of the relevant authority, not the result of a bilateral transaction between the applicant and the council. Thus evidence of the nature of the site would always be admissible for this purpose, as would be, in appropriate cases, evidence as to the meaning of the marks on plans, or indeed, the meaning of the absence of particular marks.
5. In this case, the documents that form the DC indicate in the approved plans the Wall on both the architectural plans and the survey plan. The Wall is located at the rear of the Site, in that it is away from the street frontage and close to the rear (waterside) boundary of the Site. It traverses the Site from the side boundaries. The Wall delineates the point at which the Site has a significant change in level from a higher level to a lower level closer to the waterfront. It is the only wall located within the property that could reasonably be referred to as an "existing…rear retaining wall" as provided for in condition 14 of the DC. In those circumstances the only reasonable construction to be given to the term used in condition 14 of the DC is that such a reference in condition 14 is a reference to the Wall. Accordingly, the Wall was required to be retained and protected. Further, if the Wall was to be protected it is inconsistent with that protection for the natural rock upon which it rested to be excavated.
6. If there remains any doubt as to what wall condition 14 is referring to (as was contended by the First Respondent and which was denied), recourse can be had to the development application (including the Statement of Environmental Effects) to ascertain what it was for which development consent was sought. The First Respondent, as part of the development application, submitted documentation in support of the proposal including a statement of environmental effects. In the statement of environmental effects, the First Respondent identified at 2.3 what it referred to as the "existing built form and landscaping" and specifically stated: A large retaining wall traverses the rear of the site in proximity to the M.H.W.M which differentiates the drop off in land levels in this location. Figures 3 through to 4 below identify the existing nature of the site and the structures that currently occupy it.
7. Given that the First Respondent identified in the statement of environmental effects only one "retaining wall" at the rear of the Site this must be the wall to which reference is made in condition 14 and is the Wall that has been demolished in breach of condition 14.
8. To the extent that the First Respondent contended that the Wall was not a retaining wall within the meaning that may be ascribed to that term by a geotechnical engineer such an approach is misplaced. What is required is to decipher the meaning of "retaining wall" in accordance with its ordinary meaning as used in the DC.
9. To the extent that the First Respondent relies upon landscaping condition 24 and the subsequently produced CC Landscape Plans, no part of condition 24 operates to overcome the obligation to retain the "rear retaining wall" as required by condition 14. Condition 24 is general and details what is required to comprise the landscape plan, whereas condition 14 is specific and identified a feature to be retained.
10. The Court would accept the evidence of Mr Layman that development consent was required for demolition and excavation.
11. The DC did not authorise the demolition of the Wall, and in fact expressly required its retention. The DC did not authorise the excavation of the natural rock face and in fact indicated the retention of these features by the continued depiction of the rocks on the relevant approved DC plans. The demolition of stairs leading to the pool level and the construction of a concrete "pergola" was not authorised by the DC plans and could not be construction if the Wall had been retained as required. To the extent that the CC permits such demolition and construction it is inconsistent with the DC as the two provisions cannot both be undertaken harmoniously.

First Respondent's submissions

1. Having regard to the common law principles of statutory interpretation, the terms "not consistent" and "is consistent" ought to be construed by giving the words their plain and ordinary meaning unless the contrary is shown and the interpretation is to give effect to the evident purpose or object of the instrument.
2. There is no authority to assist the Court on how to construe the words "not consistent" or "is consistent" as s 6.32 was inserted into the EP&A Act on 1 March 2018 by the Environmental Planning and Assessment Amendment Act 2017 (NSW) No 60 and cl 145 of the Regulation was amended on 1 December 2019 and neither have been the subject of judicial consideration.
3. The Court would approach the Applicants' submission that the test of "consistency" is a more onerous test than contained in cl 145 of the Regulation prior to 1 December 2019 which required that the "design and construction of the building" be "not inconsistent" with caution. If one were to construe s 6.32 and cl 145 by reference to the change in language from "not inconsistent" to "is consistent", the only conclusion could be that they have the same meaning.
4. The First Respondent submitted that the Applicants bore the onus of proof and that they had failed to discharge their onus.
5. First, there is no clear indication of what "rear retaining wall" was being referred to in condition 14 and to assume that it was the Wall was in error as the Wall was not relevantly a retaining wall in that it did not, as a matter of fact, meet the description of a retaining wall that would be applied to that term by an engineer in that it did not retain at least 600mm of soil.
6. Secondly, the conditions, in particular condition 24, anticipated the provision of a detailed landscape plan that provided for further detail including significant changes if warranted for the purposes of giving effect to the landscape design. This is precisely what happened, the CC Landscape Plans identified the demolition of the Wall, the excavation of the natural rock and the provision of landscaping. It is an incorrect construction to elevate the operation of condition 14, which does not identify what the "rear retaining wall" is, as operating as a limitation on condition 24. The reference in condition 24(n) to require retaining walls is a reference to retaining walls required to give effect to the landscape scheme proposed in the CC Landscape Plans.
7. Thirdly, taking the consent as a whole it can be gleaned from condition 16 that there were retaining walls that were able to be removed as the condition refers to retaining walls that are to be "retained" giving the textual indication that there must be some retaining walls that are not to be retained, which, consistent with the construction, the DC contended for by the First Respondent, would include demolition of the Wall.
8. Fourthly, whilst development consent was required for demolition a construction certificate was not required to enable the demolition to occur as demolition is not "building work" as defined. The Erosion and Sediment Control Plan identified the Wall as being demolished. By operation of that plan the Wall was authorised to be demolished. The fact that the Erosion and Sediment Control Plan in the CC did not reflect demolition is of no consequence as the CC did not govern demolition.
9. Fifthly, condition 10(5) required the construction of a pool fence and by so requiring there was authority by necessity for the Wall to be demolished to enable the construction of the required pool fence.
10. As a consequence of these factors, reading the DC as a whole there was no requirement to retain the Wall or the natural rock. In fact, the DC expressly permitted the removal of the Wall. Therefore, the CC to the extent that it permitted such works was consistent with the DC.
11. There is no relevant lack of consistency between the DC and the CC.

Findings - demolition of the Wall and natural rock

1. In construing a DC the ordinary principles of construction are to be applied in that the DC is to be construed as a whole having regard to the words used in their text and context. In this case, the DC clearly provided in condition 1 that the DC permitted the carrying out of the works identified in the approved nominated plans unless amended by a condition imposed upon that development consent.
2. Clause 2.7 of the Kogarah LEP required development consent for the demolition of a building or work, and cl 6.2 required development consent for earthworks which included by definition excavation which also included by definition the excavation of soil or rock.
3. In this case, a reference to the plans as approved in the DC indicate that in the majority of those plans the Wall and the natural rock was to be retained in so far as it continued to be depicted as existing in each of the plans. The only plan that indicated the Wall and the natural rock was to be removed was that depicted in the Erosion and Sediment Control Plan. On a proper construction of the approved plans, I do not accept that such depiction permitted the demolition of the Wall or the natural rock. The approved plans were a suite of plans that depicted different aspects of the development proposed and approved. In this case, there was a plan that depicted the extent of demolition. The demolition plan did not depict the demolition of the Wall or the natural rock. The Erosion and Sediment Control Plan depicted the mechanisms to be put in place to protect the Site and the surrounding environment from erosion and the exportation of sediment during the construction process as reinforced by the provisions of condition 11 of the DC. For that reason, to the extent of inconsistency between the two plans as it relates to demolition, the extent of demolition as depicted in the demolition plan prevails. For those reasons, there is no part of the DC approved plans that permits the demolition of the Wall or the natural rock.
4. It is then necessary to consider whether any of the conditions imposed upon the DC amended the fact that the plans did not authorise the removal of the wall or the rock face.
5. The First Respondent places significant reliance upon the terms of the landscape condition, being condition 24. Condition 24 requires a detailed landscape plan to be prepared and submitted prior to the issue of a construction certificate. The condition identified in the various subparagraphs the matters that were to be included in the detailed landscape plan. It was submitted that the provisions of subparagraphs (e), (f), (k) and (n) either alone or in combination authorised the removal of the Wall and the natural rock. These provisions were in terms as recited at [27] above. Having regard to the text and the context of this condition it is clear that what is being required is a detailed landscape design that co-ordinates with the development approved. To that extent the landscape detail is to show: what it proposed by the development (that is, location of existing and proposed structures - subparagraph (e)); detail of the landscape works such as earthworks, mounding and retaining walls and planter boxes which form part of that landscape response (subparagraph (f)); and together with other structures that are necessary to give effect to the landscape regime (subparagraph (n)). There is no part of the text or context that would permit, as was submitted by the First Respondent, that this condition is so flexible as to give the holder of the development consent carte blanche to alter or add to the underlying development approval in a substantial or material manner.
6. Further, to read the condition in the manner proposed by the First Respondent would be to permit a construction that permitted development for which development consent was required (namely, demolition and earthworks) to be undertaken without a development application being made for that development. That is, a development consent can only relate to the development for which consent is sought. In this case, not only was development consent not sought for the demolition of the Wall or the natural rock those features were expressly excluded from the development consent sought by the nomination of retention in the approved plans.
7. For those reasons, I find that condition 24 properly construed does not permit a departure from the approved plans that would permit the demolition of the Wall or the natural rock.
8. The First Respondent also contended that condition 10(5) permitted the demolition of the Wall. On a proper construction of this condition, it did not permit the demolition of any element on the Site, rather it nominated the location of a fence by reference to another plan. All the condition required was that the details of a compliant pool fence be incorporated on the CC plans in the location shown on the Botanica landscape plan. This plan showed a fence in the location of the Wall in that it depicted the retention of the Wall by the double lines (which depiction had consistently been shown in the plans to depict the existence of the Wall) with a single line running along the middle depicting a fence. This condition required the detail of that fence as none was provided in the specified plan and provided a maximum height. There is no inherent consequence in the compliance with the terms of this condition that would necessitate either the removal of the Wall or the natural rock. I observe in passing (but have not taken into account in the construction of this condition) that, as a matter of fact, prior to the approval the existing Wall had constructed upon it a glass extension to the relevant height proposed in the conditions (see Figure 1 above).
9. The Applicants relied upon the provisions of condition 14 as an express requirement to retain the Wall. The First Respondent submitted that on a proper construction the reference to the "existing …rear retaining wall" was not a reference to the Wall. I accept the construction contended for by the Applicants.
10. The clear terms of the condition are referring to something that exists, it is not a reference to a generic feature. The approach of the First Respondent that the term is some term of art that requires conformity with an engineering specification is rejected. In understanding this consent the condition does not refer to "any retaining wall" or even "a retaining wall", it refers to something in a specified location that exists and is to be protected and retained. It is not necessary that it meet some engineering specification in order that it qualifies for such descriptor. It is a reference to be determined by reference to the DC. Therefore, I must ascertain what feature that exists on the Site that this condition is referring to.
11. To the extent that it is said to exist it is something other than a brick fence and it exists to the rear of the Site. Contrary to that contended by the First Respondent, I do not consider that there is any confusion about which is the rear of the Site. The street frontage is the front of the Site traditionally, in so far as it is the boundary across which persons traditionally access the Site. This is further reinforced by the reference in the plans to the "front fence" detail being the fence at the street frontage. Therefore, the "rear" is the part of the Site towards the boundary adjacent to the land held by Third Respondent.
12. At the rear of the Site there is only one wall that is not a brick boundary fence. That wall is at the intersection of the distinct fall in the land between the upper terrace level and the pool level. It is a feature that is visually identifiable by reference to the stone feature and rendered treatment above the natural rock. Considering the terms of the DC and the physical features of the Site the Wall is the only feature to which this condition could be referring. Accordingly, I construe condition 14 of the DC as requiring the retention and protection of the Wall.
13. To the extent that the First Respondent relied upon the provisions of condition 16 to suggest that condition 14 should be construed so as to limit the reference therein to an engineered retaining wall I reject that submission. Condition 16 related to the provision of a dilapidation report for "All retaining walls and masonry boundary fences that are to be retained", the change in language from "rear" to "all" cannot alter the operation of condition 14 which identified the relevant retaining wall as required to be retained. Condition 16 operates to require that specified the Wall - together with any other retaining wall otherwise located on the Site and proposed to be retained - to be the subject of the dilapidation report.
14. For all of the above reasons, I find that the DC did not authorise the removal of the Wall or the natural rock. This finding is primarily based upon a consideration of the approved plans independent of any condition of consent. To the extent that the conditions operated to "amend" the plans I find that none of the conditions amended the approved plans to authorise the removal of the Wall or the natural rock. I further find that condition 14 operated not to amend the approved plans but rather to reinforce by words that the Wall was to be retained, as depicted in the approved plans, and to require it to be protected from impacts as a consequence of the carrying out of the approved works provided for in the DC.
15. To the extent that the CC identified the removal of each of the existing stairs leading from the upper terrace level to the boat house roof and pool deck area and the construction of a pergola extending from within the upper terrace area and cantilevering over the pool deck, such work was not authorised by the approved plans or the conditions of the DC. In fact, no work at all was identified in the area south or east of the Wall. Each set of stairs were identified in the approved plans as being retained. Further, the capacity to construct the new stairs in the central portion of the former Wall and the provision of the area to which the pergola related were only available due to the removal of the natural rock and the demolition of the Wall.
16. For those reasons, I find that the demolition of the existing stairs and the proposed construction of new stairs and the pergola as identified in the CC and the CC Landscape Plans were works not authorised by the DC and could not be constructed absent the carrying out of the demolition of the Wall and the natural rock each of which was not authorised by the DC.
17. As a consequence, to the extent that the CC made provision for the demolition of the Wall and the natural rock and proposed the demolition of the existing stairs and the construction of new stairs and a pergola the CC was inconsistent with the DC as the two instruments could not operate consistent with each other. That is, the Wall and the natural rock and the stairs could not be retained as proposed in the DC if they were proposed to be demolished in the CC and further, the construction of the new work could not occur absent that demolition. It matters not whether the relevant provisions in the EP&A Act are "not inconsistent" or "are consistent". On any test, the DC and CC cannot work together, in that compliance with both cannot be simultaneously achieved and the differences are material and substantial. On any construction of cl 145 of the Regulation, the DC and CC to the extent of the Disputed Works works complained of are not consistent.

Development carried out without development consent?

1. This claim relates first to the carrying out of development on the Site contrary to the DC or without the DC in so far as: 1. The construction of concrete slabs between the foreshore building line and the MHWM applicable to the Site (Foreshore Building Area) and below the MHWM in a manner that is inconsistent with the 2021 Consent and the CC; and 2. The excavation and removal of rock walls, retaining walls and other works in and adjacent to the Foreshore Building Area in a manner that is inconsistent with the 2021 Consent and the CC.
2. It relates secondly to the carrying out of development without consent on land adjacent to the Site and owned by the State of New South Wales comprising: 1. The carrying out of building works below the MHWM; and 2. The construction of concrete slabs below the MHWM.
3. This aspect of the application relates primarily to the construction of the Northern and Southern Slabs.
4. With respect to the Southern Slab the only part of any approval that related to the Site referencing a slab on the southern part of the Site was the CC Landscape Plans. To that extent the CC Landscape Plans were inconsistent with the DC and were invalid. In the alternative, if authorised by the CC Landscape Plans the Southern Slab was not constructed in accordance with such plans with respect to its form and location and is therefore carried out without the DC.
5. With respect to the Northern Slab, it is contended that no part of any approval that related to the Site authorised the construction of this slab.
6. The Court would accept the uncontested evidence of Mr Layman that none of these works were relevantly exempt development and, therefore, development consent was required.

Applicants' submissions

1. With respect to the Northern and Southern slabs, the First Respondent accepts that in the form constructed neither slab was identified in any approved plan, including the later produced CC Landscape Plans. The Southern Slab was in excess of that shown in the CC Landscape Plans and the Northern Slab was not indicated at all. On that basis alone, the two slabs must be accepted as being unauthorised.
2. In closing submissions, the First Respondent sought to contend that the Applicants had failed to demonstrate that development consent was required for the Northern Slab, such a submission should be rejected. The unchallenged evidence of the Applicants' town planner, Mr Layman, is that development consent was required for such works and his evidence should be accepted.
3. In the alternative, if the CC is not held to be invalid and the CC Landscape Plans are held to authorise works, the CC Landscape Plans do not identify works of the nature of the Southern Slab which is larger and located differently than depicted in the CC Landscape Plans. The Northern Slab is not depicted at all, and that area is depicted as containing decking. Accordingly, each of the slabs are not authorised by the DC or CC and are, therefore, development carried out without development consent.

First Respondent's submissions

1. The First Respondent's submissions on this ground were limited to the Northern Slab.
2. The First Respondent accepts through the evidence of Ms McCabe that the Northern Slab as constructed has not been identified on any relevant DC or CC.
3. The Applicants bear the onus of establishing to the relevant standard that such work was development that required development consent. The Applicants have failed to discharge their onus.
4. There is no evidence of the zoning of the land upon which the Northern Slab has been constructed except in the broadest sense. Further, there is no evidence that there is not some instrument other than the Kogarah LEP that would permit the construction of the Northern and Southern Slabs without development consent. As the evidence discloses that there is doubt as to the location of the MHWM the Court could not be satisfied as to which zone the land upon which the Northern Slab was constructed or the owner of the relevant land (as ownership depends upon the location of the MHWM).

Findings

1. As to the Northern Slab the First Respondent's focus upon the exact location of the MHWM is not compelling. The evidence discloses that the location of the Northern Slab is either wholly within the R2 zone or partially within the R2 and W2 zones. In either zone development consent was required for the earthworks undertaken to facilitate the construction of the Northern Slab and such consent was not obtained. Further, the uncontested evidence of Mr Layman was that works of the nature of the Northern Slab were not exempt development or otherwise capable of being carried out without development consent. As a consequence, I am satisfied on the balance of probabilities that development consent was required for the works that were undertaken to effect the construction of the Northern Slab and that such development consent was not obtained.
2. As to the Southern Slab, the slab due to its manner of construction is a building within the meaning ascribed to that term in the EP&A Act in that it is a structure by virtue of it cantilevering over the rock face and the manner in which that cantilever is effected by the attachment to the underlying rock. In addition, the carrying out of the construction required the undertaking of earthworks which works were not the subject of development consent (as identified above). For each of these reasons, the Southern Slab was development that required development consent for which consent had not been obtained.
3. As I have found that the removal of the Wall and the natural rock was contrary to the requirements of the DC it is not necessary that I separately consider whether the same work was development without consent. For the same reasons identified above, such works required development consent and consent was not obtained for that work, so it is both development contrary to the DC and development for which consent was required and not obtained.

Discretion and relief

1. Once breach is found, there remains a discretion as to what relief, if any, should be granted. This discretion has been identified as being an inherent part of the system of enforcement of the system of planning, and was so described by Kirby P in Warringah Shire Council v Sedevcic (1987) 10 NSWLR 335 at 342 in the following terms: It is important to conclude by pointing out that that discretion is itself part of the statutory scheme. In this sense, the exercise of the discretion should not be seen as the illegitimate interference by judges in the even-handed application of planning law which local government authorities have the responsibility of enforcing. Instead, it is an important part - a fulcrum as it were - of that planning law, designed to introduce into it the protection, in reserve, of a salutary discretion. Because it exists in the Court, the discretion must also be considered by planners who invoke the Court's jurisdiction. Because it is established by Parliament and is expressed in such broad terms, it is a legitimate and integral part of the overall scheme of planning legislation operating in this State. It cannot be ignored. It should not be unduly circumscribed by a gloss of cases.

Evidence on discretion

1. The Applicants relied upon the evidence of: Mr Layman, architect and town planner; Mr Jackaman, geotechnical engineer; and Mr Manning, structural engineer on matters relating to discretion.
2. The First Respondent relied upon the evidence of: Ms McCabe, town planner; Mr Mostyn, geotechnical engineer; Dr Amin, structural engineer; and Mr Davidson and Mr Masri, Surveyors on matters of discretion.
3. Whilst the town planning experts remained in dispute as to the extent of the impacts of the Northern and Southern Slabs by the completion of the evidence, I accept that the impacts upon privacy and overlooking from each of the slabs could be ameliorated by the imposition of barriers and landscaping upon the slabs that would prevent or appropriately ameliorate the impacts of overlooking and privacy.
4. The structural engineers were unable to provide any assurance as to the structural adequacy of the Northern Slab as they had insufficient details of the manner of its construction. As to the Southern Slab, whilst Dr Amin was of the opinion that the slab was structurally sound his opinion was based upon assumptions, including in particular, where the rock interfaced with the slab and how the epoxy fixing was effected. If his assumptions were incorrect he would have to run his model again to test structural stability. From the evidence available I am satisfied that the assumptions made by Dr Amin are not accurate as they relate to the intersection of the slab with rock - as photographs show a distinct gap between the bottom of the slab and the upper level of the underlying rock at the leading edge of the rock and the photographs also show some inconsistencies in the epoxy dowels as indicated on the plans and those in fact in existence in the slab.
5. The surveyors gave evidence as to the existing MHWM, and the possibility of that line altering if an application for readjustment of the boundary were made.

Applicants' submissions

1. As identified in the Final Amended Summons the Applicants seek the following orders consequential upon the making of the declarations sought. 4. An order that the First Respondent by himself, his employees, servants and agents be restrained from carrying out any building works not in accordance with the plans the subject of the 2021 Consent. 5. An order that, as a consequence of the matters set out in prayer 1, 2 and 3 that the First Respondent, by himself, his employees, servants and agents, within 28 days: a) remove and demolish: i) the concrete slab at RL5.3 with low concrete wall on the north-east corner of the Site and partly on land below the MHWM; and ii) the concrete slab at RL 5.80 on the south west corner of the Site, as identified at Annexure E of the affidavit of Robbie Davidson dated 13 June 2022 and filed 14 June 2022; b) dispose of any materials following demolition at an authorised waste facility and c) backfill, remediate and stabilise the Site upon which buildings works and structures have been carried out by or on behalf of the First Respondent. 6. An order that the First Respondent by himself, his employees, servants and agents be restrained from carrying out any further building work on the Site unless and until it obtains a further landscape plan in respect of that further building work.
2. The Applicants contend that there are real reasons to enforce the integrity of the planning regime and therefore the making of declarations and orders. In this case the First Respondent has constructed substantial slabs without approval and there remain concerns as to the structural stability of those slabs. Further, the retention of the slabs would have to be conditioned to ensure there was no overlooking from the slabs. If an application had been made, issues of structural stability and planning impacts would have been assessed and weighed in the process. By carrying out the work without approval the First Respondent has undermined the planning system such that there is no countervailing discretionary consideration that would warrant the retention of either slab in part or in whole.

First Respondent's submissions

1. The First Respondent submits that there is no real amenity impact on adjoining properties in the event that the Disputed Works were permitted to be retained. However, if the Slabs were required to be removed completely there would be cost implications to the First Respondent together with the generation of unnecessary waste. On balance, whilst the works may have been undertaken without development consent that factor should not warrant demolition where there is no real impact from the retention of the works.
2. Alternatively, the Southern Slab could be cut to remove the cantilever and overcome any amenity concerns that arise from that Slab.

Findings

1. The inconsistency between the DC and the CC with respect to the Disputed Works arises as a consequence of the incorporation of the CC Landscape Plans into the CC. Absent the CC Landscape Plans the CC would be consistent with the DC as it would retain the Wall, the natural rock and would not make provision for the stairs and other ancillary works. Further, there would be no reference to what was identified as the pergola, being a structure of albeit of different dimensions than the Southern Slab. Having regard to the fact that the CC relates to the construction of the dwelling house which has already commenced it would be a disproportionate response to render the whole of the CC invalid or to preclude the continuation of the construction of the dwelling house which would, except for the provision of the CC Landscape Plans, be consistent as between the CC and the DC.
2. Having regard to the majority of the inconsistency being caused by the CC Landscape Plans and the fact that condition 24 of the DC did not require the CC Landscape Plans to form part of the CC, (merely that they be submitted and approved prior to the issue of the CC) I invited the parties to address me on whether it was appropriate that, in lieu of a declaration that the whole of the CC was invalid, that a declaration be made that the CC Landscape Plans were unlawful to the extent that they were inconsistent with the DC and that those plans be severed from the CC. The consequence being that the CC (subject to any need to amend the CC to accommodate any further orders I make) can continue to authorise the existing and any future work relating to the construction of the dwelling house.
3. The parties agreed that such an approach was within power and would be consistent with the approach previously taken in this Court by Pain J in Carriage v Stockland Development Pty Ltd (No 7) [2004] NSWLEC 148, where her Honour declared that a construction certificate was invalid only to a limited degree and her declarations and orders related merely to the extent of the invalidity leaving the balance of the construction certificate valid.
4. In the circumstances of this case, for the reasons I have outlined I consider that it is appropriate that any declaration I make be limited to the CC Landscape Plans leaving the balance of the CC operational so as to minimise the cost and delay to the First Respondent as a consequence of the incorporation of the CC Landscape Plans into the CC.
5. As to the nature of the orders, if any, that would be consequential in any relief, I consider it appropriate that the Northern and Southern Slabs be demolished.
6. The Northern Slab should be demolished as there is no evidence as to the manner in which it was constructed and there is not sufficient (if any) evidence before me to satisfy me that it is structurally sound. As it was intended that the Northern Slab be capable of bearing the weight of landscaping, including planting, together with access by the occupants of the dwelling, the lack of evidence that the Northern Slab is structurally sound is of itself reason to warrant its demolition.
7. I further take into account the real risk that the Northern Slab has been constructed over the boundary to the Third Respondent's land. Whilst the First Respondent submitted that the location of the MHWM is upon further survey in a location other than that shown on the approved survey, I take into account that in the assessment of the DC and on the representations made by the First Respondent on the material submitted for that assessment the MHWM was identified in a location that would have the Northern Slab located at least, in part, over the Third Respondent's land. Such a factor and the uncertainty as to the lot boundary is another reason why the Northern Slab should be demolished, particularly in circumstances where there is no evidence that to the extent that the Northern Slab may encroach, the Third Respondent has consented to its retention.
8. As to the Southern Slab there is evidence as to the assumed manner of construction. However, this is an after the fact assumption, as the Southern Slab was constructed without conformity to any engineering design or engineering supervision. Further, there was no direct evidence as to the manner of the construction. There is some dispute between the structural engineers as to the extent to which the Southern Slab is presently structurally sound or could be rendered structurally sound. The uncertainty surrounding the structural soundness of such a large slab that cantilevers over an area proposed for occupation by the residents of the dwelling for recreational uses is sufficient to warrant the demolition.
9. A further consideration which would of itself warrant the demolition of the Southern Slab is the extent to which it has the potential to impact on the amenity of the area, particularly when viewed by the public from the water and other public spaces. This was a matter for consideration by the Council in its assessment of the DC. The overhanging feature obscures the views of the natural rock and is a feature that is not otherwise present in other waterfront properties. The impression of the undercroft of the overhang when viewed from the water is also unknown and unexpected. These factors were not able to be considered and assessed by the Council so I am unable to determine whether such factors would have been considered to be acceptable in a planning context. However, considering the evidence of the immediate waterfront I consider that such impacts weigh in favour of the removal of the Southern Slab.
10. I do not consider the costs that the Applicants will have to incur in the demolition to weigh against demolition. The Southern Slab was constructed by the Applicants in a form that was not anticipated even in the CC Landscape Plans, it was constructed without structural design and, therefore, the Applicants took the risk in embarking upon its construction.
11. Further, the submission that the amenity impacts of the retention of the Southern Slab are negligible or minor do not weigh against its demolition. The mere lack of impact is, of itself, not a reason to warrant retention in circumstances where development consent was required and not obtained. There is a strong public interest in the upholding of the planning regime particularly in the construction of a structural cantilevered slab.
12. I do not consider that the removal of the two stairs and the construction of the central stairs require any further order. Works relating to the central stairs have been constructed and there is no evidence that its structure is unsound. In the circumstances of the removal of the Southern Slab the retention of the central stairs works will not have such a significant amenity effect that, in light of the other orders I propose, that the stairs should be demolished. I further note that the removal of the natural rock has made available to the First Respondent a further useable area at the pool level which will provide a benefit to it. Whilst such benefit comes in part in the reduction of the area of the upper terraced area, that was a decision made by the First Respondent upon the demolition of the Wall and the natural rock - each of these works being undertaken contrary to the approvals that had been granted to him.
13. With the demolition of the Northern and Southern Slabs and the severing of the CC Landscape Plans the First Respondent will have to develop a treatment for the upper terrace area to render it safe, such as by provision of fencing and some levelling of the area and the like. Such works will need to be developed and a determination made as to whether those works require an amendment to the CC. Further, to enable compliance with the terms of the DC the First Respondent will be required to have a detailed landscape plan approved in accordance with the requirements of condition 24 and complete such works prior to the issuing of an occupation certificate (see condition 39). Accordingly, to enable a consideration and formulation of appropriate orders consequential upon the making of the declarations I propose to adjourn the matter for consideration by the parties and preparation of orders that will reflect my findings.
14. As to the timing of the works proposed I do not consider that construction of the dwelling should be delayed pending the approval of the landscape plan. The DC conditions prevent the issuing of an occupation certificate until approval of a landscape plan and completion of the landscaping works the subject of the that plan. Accordingly, the necessity for the approval of any further landscape plan and the completion of the landscape works should be ordered to occur prior to the issuing of an occupation certificate.
15. As to the timing of the demolition of the Northern and Southern Slabs such demolition can occur concurrently with the continued construction of the dwelling. However, some time should be fixed as to when the slabs are to be removed so as to provide certainty as the completion of this work. To that extent, the Northern and Southern Slabs should be demolished within six months of the date of the final orders or prior to the issue of an occupation certificate, whichever is the earlier date. In addition, a condition should be imposed that no building or construction materials or plant or machinery are to be placed upon either slab while they remain on the Site so as to ensure that the integrity of the slabs is not compromised and persons on the Site put at risk by activities pending demolition.
16. For those reasons, I propose to make a declaration that the CC is invalid to the extent that it incorporates the CC Landscape Plans and defer the making of final consequential orders to give the parties an opportunity to either agree the terms of those orders or address me on the final form of orders. The orders should make provision for: 1. Restraining the First Respondent from acting upon the CC Landscape Plans; 2. The demolition of the Northern Slab and the Southern Slab within six months of the date of the final orders or prior to the issue of an occupation certificate whichever is the earlier date conditional upon there being no building or construction materials or plant or machinery placed upon either slab while they remain on the Site; 3. The approval of a detailed landscape plan consistent with the DC and reflecting the existing landform with the Wall and natural rock having been demolished and the completion of such landscaping works prior to the issue of an occupation certificate; and 4. The identification of any works, if any, necessary to render the existing excavated rock face and the land behind it safe together with any necessary fencing and any necessary process or approval that is required to give effect to such changes where such approval would be required in addition to any order made by this Court.

Costs

1. The parties requested the opportunity to consider the judgment prior to making submissions on the appropriate order as to costs. I will reserve the costs of the hearing.

Conclusion and orders

1. For the reasons that I have outlined above: 1. The Court notes and accepts the undertaking of the First Respondent: 1. That he will not undertake any works, or cause any works to be undertaken, that require development consent (including complying development) on the land below the High Water Mark on lot 13 identified on deposited plan 14844 without first obtaining development consent (including a complying development certificate). 2. That he will not pour, or cause to be poured, the ground floor slab, identified in development consent DA2020/0430 issued by Georges River Council on 7 October 2021, in the formwork erected on lot 13 in deposited plan 14844 at the levels identified in Annexure C to the report prepared by Robbie Davidson of Geodesy Survey Group dated 10 May 2022 at annexure B to the affidavit of Robbie Davidson sworn 20 May 2022, unless development consent is obtained to do so. 1. The Court declares that Construction Certificate CCC-26BOW/2021 issued to the First Respondent by the Second Respondent on 17 November 2021 is invalid to the extent that it incorporates the plans identified in item 4 of the List of approved plans and specifications referred to in the Construction Certificate Notice of Determination, namely Landscape Designs, Prepared by Dapple Designs, Issue D Dated 21/10/2021, Reference Number LP 01, Sheet Numbers 1-12 inclusive; 2. The Court reserves the making of final orders consistent with the findings in [121] of the judgment until the parties have been given the opportunity to address on the form of those orders; 3. Costs are reserved; 4. The parties are directed to confer as to the form of the orders and if possible prepare agreed short minutes of order reflecting such agreement. Absent agreement the parties are to prepare competing short minutes proposed by each of them. Any short minutes are to be filed and served by 4pm, 27 September 2022; and 5. The matter is listed for further mention before me at 9am on 29 September 2022.

Amendments 26 August 2022 - 26 August 2022 - name of second respondent on cover page corrected - name of solicitors for the applicants on cover page corrected 29 September 2022 - 29 September 2022 - in the second sentence replace the word 'The' with the words 'Works relating to the' - in the third sentence insert between the words 'stairs' and 'will' with the word 'works'. 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: 29 September 2022