Sargent v The Council of the City of Sydney

Background

1. Ms Sargent purchased the property in around 1988. At that time, there was a pergola in place with dimensions consistent with the totality of the awning structure. A building certificate was issued on 5 December 1988, which attached a sketch survey of the property that showed a pergola at the rear with dimensions 3.628m wide and 14.055 long.
2. However, at some point prior to 2011, in a year and on a date that has not been disclosed, Ms Sargent had the middle section of the awning removed by the neighbour. The reason given in the Statement of Facts and Contentions for removing it was that local children from an area known as 'The Block' were using it to climb onto the roof of the dwelling and run along the adjacent roofs.
3. In July 2011 work was done on the structure, including replacing the wood and reinstating the middle section of the awning which connected the upper and lower levels.
4. The Council then issued an order on 9 March 2012, which required Ms Sargent to do the following: "To demolish the angled section of the timber and polycarbonate awning located at the rear of the Premises."
5. Ms Sargent appealed to the Court against the issue of the order in proceedings number 2012/10324. Following the commencement of the appeal, Ms Sargent, on the understanding that the appeal did not operate as a stay on the order, complied with the order by removing the polycarbonate sheeting from the angled section and changing the angular nature of the timber elements of the structure so that it was lowered and ran horizontal, aligning with the rear awning over the pergola.
6. On 30 April 2012 the Council advised that the order the subject of the proceedings was withdrawn, and Ms Sargent subsequently discontinued the proceedings. There is a dispute between the Council and Ms Sargent as to the effect of the withdrawal of the order. The Council says that the order was withdrawn following compliance with the terms of the order and that it was made clear to Ms Sargent that development consent would be required to re-instate the structure. However, Ms Sargent wanted to agitate the issue regarding whether development consent was required, and was of the view that the withdrawal of the order restored the status quo in existence at the time that the order was issued.
7. As such, on 2 May 2012 the timber and the awning were reinstated to the angular position and laserlite installed.
8. More than four years later, an inspection of the structure was undertaken by Council on 26 September 2016 in response to a complaint received that the polycarbonate roofing had been reinstalled. Ms Sargent says that this inspection was not carried out on or from her property.
9. On 7 October 2016 a Notice of Intention to give an order under 2(a) of s 121B of the EPA Act to demolish the structure was issued to Ms Sargent, and on 12 December 2016 the order was issued.

The site and its context

1. The subject site has a legal description of Lot 10 DP 236571 and is known as 9 Hugo Street, Redfern. It is a regular shaped allotment with an area of approximately 101.2m2, and contains an attached three storey terrace. It has a primary street frontage to Hugo Street to the west and a secondary frontage to Louis Street to the east. Adjoining the site to the north and south are attached residential dwellings.
2. The site is located within the Darlington Heritage Conservation Area (C19) under SLEP 2012. The site is identified as a contributory building in Sheet 009 Building contributions map in the Sydney Development Control Plan 2012 ("SDCP 2012"). Similarly, under the former instrument, SSLEP 1998, the site was located within the Darlington Conservation Area (C17) and the site was identified as a contributory building in that conservation area.
3. The surrounding area comprises low density attached residential dwellings, with commercial premises dispersed throughout the surrounding streets. Adjoining the site to the west is Hugo Street, with a public park and basketball court on the opposite side of the road. Adjoining the site to the east is Louis Street, with an open block on the opposite side of the street.

The role of the Court on appeal

1. The appeal is lodged pursuant to s121ZK of the EPA Act. In hearing the appeal, the Court re-exercises the functions of the Council in determining whether the order should be issued. Section 39 of the Court Act provides that: "(2) In addition to any other functions and discretions that the Court has apart from this subsection, the Court shall, for the purposes of hearing and disposing of an appeal, have all the functions and discretions which the person or body whose decision is the subject of the appeal had in respect of the matter the subject of the appeal. (3) An appeal in respect of such a decision shall be by way of rehearing, and fresh evidence or evidence in addition to, or in substitution for, the evidence given on the making of the decision may be given on the appeal."
2. In determining an appeal under s121ZK, the Court may (at s 121ZK(4)): "(a) revoke the order, or (b) modify the order, or (c) substitute for the order any other order that the person who gave the order could have made, or (d) find that the order is sufficiently complied with, or (e) make such order with respect to compliance with the order as the Court thinks fit, or (f) make any other order with respect to the order as the Court thinks fit."
3. As set out by Dixon C in Imaroo Flyer Pty Ltd v Berrigan Shire Council [2010] NSWLEC 1251 (at [22]): "As is clear from the wording of the section the Court's power under section 121ZK(4) of the EPA Act does not extend to a merit assessment of the structures. The Court has no power in this appeal to grant an approval for the structures to remain without development consent under the EPA Act."
4. The power of the consent authority to issue an order arises from s 121B of the EPA Act. Relevantly, it provides: "(1) An order may be given to a person by: (aa) … (a) a council, or (b) any other person who exercises functions as a consent authority, except in relation to complying development for which a complying development certificate has been issued, to do or to refrain from doing a thing specified in the following Table if the circumstances specified opposite it in Column 2 of the Table exist and the person comes within the description opposite it in Column 3 of the Table."
5. The relevant part of the table that the Council relies upon is 2(a), which allows an order to demolish or remove a building to be issued to the owner of premises in circumstances where the: "Building is erected without prior development consent of consent authority in a case where prior development consent is required or is erected without prior development consent of a consent authority and a prior construction certificate in a case where both prior development consent and a prior construction certificate are required"
6. I am therefore required to consider if development consent for the structure was required, and if it was so required, whether it has been obtained. If development consent was required and has not been obtained, the use of the word "may" in s121B(1) means that the consent authority, and therefore the Court on appeal, retains a discretion as to whether to issue the order.
7. To assist me in this consideration, the Council relies on the evidence of Jemima Royall (town planner), Hendry Wan (heritage specialist) and Marie-Clare Kavanagh (building surveyor).

Has development consent been obtained?

1. There is no evidence that any consent has been given by the Council for the angled section of the awning. The evidence of Ms Royall, the Council's town planner, is that council records indicate that the dwelling was built prior to 1919. Her evidence is that two development consents have been issued, in 1969 and 1978, which both concerned alterations and additions including a new ground floor bathroom and laundry. The evidence of the town planner is that a search of the Council's records has not revealed any consent concerning the awning to the rear, including the angled section. Ms Sargent does not dispute this evidence.

Is development consent required?

1. Ms Sargent asserts that the structure was there when she purchased the property, and that she did not even consider whether development consent would be required to reinstate the structure in 2011. In support, she relies on a building certificate issued in 1988. Ms Sargent also submits that, having regard to the form for making development applications, the form is not suitable for a development application for such a small structure and no such other form is available. Ms Sargent also submits that the proper approach is that development consent was required for her to demolish the angled section of the awning when she did so prior to 2011, and that the appropriate order should have been an order to reinstate the awning.
2. The Council submits that the building certificate does not act as consent for the structure, and that the SSLEP 1998 operated to require development consent to be obtained for the structure. The Council also submits that the structure is not exempt under the State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 ("SEPP"). The Council says that the alleged inadequacy of a form cannot avoid the requirement to obtain development consent.
3. There is another relevant matter not raised by the Council, arising under s 76A of the EPA Act, for consideration in determining whether development consent was required. I will turn to this following my consideration of the parties' submissions.

The structure and the building certificate

1. The fact that the structure, or some similar structure, was in place at the time that Ms Sargent purchased the property is not sufficient to avoid the requirement to obtain development consent. If the structure was built at a time when development consent to build such a structure was not required (if it was exempt under the relevant planning instrument or development specified as that for which consent was not required), then, upon a planning instrument coming in force that requires development consent for that structure, it may be argued that the structure can remain in place unaltered without development consent. However, the structure did not remain in place unaltered from the time it was originally built and no argument is made that it did. At some point the middle section of the awning was removed, and the structure was rebuilt in July 2011. Given that there was no earlier development consent for the structure, its rebuilding in July 2011 could only be done if development consent had been obtained or if development consent was not required under the relevant planning instruments.
2. Similarly, I accept the submission of the Council that the existence of a building certificate issued in 1988 is not sufficient to avoid the requirement to obtain development consent. The building certificate, issued pursuant to s 317AE of the Local Government Act 1919 (the relevant legislation at the time) does not have the effect of giving development consent. The effect of a building certificate was outlined in s 317AG, which provided (at (1)): "(1) If a building certificate has been issued in relation to a building or part, a council - (a) by virtue of anything existing or occurring before the date of inspection stated in the certificate; or (b) within 7 years after that date by virtue of the deterioration of the building or part solely by fair wear and tear, shall not: (c) make an order under section 317B in relation to the building or part; (d) take proceedings for an order or injunction requiring the demolition, alteration, addition or rebuilding of or to the building or part; or (e) take proceedings in relation to any encroachment by the building or part onto land vested in or under the control of the council."
3. Further, s 317AG(3) made it clear that proceedings could still be taken against a person under other provisions that required consent to be obtained to erect or use a building. Therefore, the building certificate did not operate as an ongoing consent for the structure.

The initial demolition

1. There is no evidence on which to accept Ms Sargent's submission that the demolition of the structure prior to 2011 required development consent. Whilst cl 23A(1) of the SSLEP provides that "A person must not (a) demolish or alter a building or work within a heritage conservation area", there is no evidence of the date on which that demolition occurred so as to know whether this provision applied and/or the structure was in a heritage conservation area at the time of demolition. If Ms Sargent is relying on April and May 2012 as the period during which the demolition occurred, that being the time at which the works were carried out to comply with the s121B order, then development consent was not required as the demolition component of the works was carried out in accordance with the order (s 121O of the EPA Act). Therefore I cannot accept the submission that the demolition occurred without development consent and therefore that an order should be made to reinstate it.

The planning instruments

1. Turning then to the submissions regarding whether development consent was required, section 76 of the EPA Act provides as follows (insofar as it is relevant): "(1) If an environmental planning instrument provides that specified development may be carried out without the need for development consent, a person may carry the development out, in accordance with the instrument, on land to which the provision applies. Exempt development (2) An environmental planning instrument may provide that development of a specified class or description that is of minimal environmental impact is exempt development. …"
2. In determining whether development consent was or is required, it is necessary to consider the planning instruments that applied at the date of construction. Whilst I have referred to July 2011 as the date of construction, the Council says that the relevant date of construction is 2 May 2012, the point at which the middle section of the awning and timber structure was restored following the withdrawal of the earlier order. For the purpose of determining whether development consent is required, which of the construction dates is correct is immaterial, as both dates post-date the introduction of the SEPP and the SSLEP 1998, and pre-date the commencement of the SLEP 2012. The relevant instruments are the SEPP and the SSLEP 1998.

Was it permissible without development consent (s 76(1))?

1. For the consideration of development that may be carried out without consent in accordance with s 76(1) of the EPA Act, the planning instrument that applied at the time of construction was the SSLEP 1998. The Council's submission is that the site, at that time, was zoned as 2(a) residential (low density). This is not consistent with the zoning map in the SSLEP 1998, which demonstrates that the site was zoned as 2(b) residential (medium density). The effect of the applicable zoning table was to provide that all development requires development consent, except for exempt development referred to in clause 10A. Clause 10A provides that exempt development is identified development of minimal environmental impact listed in the South Sydney Development Control Plan 1999 - Exempt and Complying Development ("SSDCP ECD")
2. The SSDCP ECD sets out a number of categories of development, two of which may be relevant to the structure. The first is "Awnings, canopies, storm blinds and other weather protection devices", as long as it: "• Has a maximum area of 10m2 if located at ground floor level and maximum of 3m2 if located above the ground floor level, and • Is attached to residential dwelling houses, and • Is located over existing door and/or window openings, and • Is located behind the front building alignment and not less than 900mm from any property boundary, and • Must not interfere with adjoining properties ability to comply with the minimum solar access requirements in Development Control Plan 1997, and • Is not located within a heritage conservation area or heritage streetscape identified in a Local Environmental Plan, and • Must not to be located within a foreshore building line and the mean high water mark of Port Jackson, and • If the awning is less than 900mm from the boundary, it must be non-combustible • Must be structurally adequate."
3. Given that the entire site is in a heritage conservation area under the SSLEP 1998, and also that the structure is above the ground floor level and greater than 3m2 in area, the structure is not exempt development under this category.
4. The second is a "pergola", which: "• Must be in association with a dwelling house, and • Must be open sided and unroofed (including shade cloth, polycarbonate or the like), and • Must be at ground floor level, and • Is located behind the front building alignment, and • Must not exceed a maximum area of 10m², and • Must not exceed a maximum height of 2.4m, and • Must maintain a minimum setback of 900mm from a boundary, and • Must be structurally adequate (installed in accordance with AS1684), and • Must not to be located within a foreshore building line and the mean high water mark of Port Jackson Notes: ◊ Roofed or enclosed pergolas require development consent."
5. Given that the structure is roofed, and is not at ground level, it does not benefit from being exempt under the category of 'pergola'. Indeed, the note to that category makes it clear that roofed pergolas require development consent.
6. There being no other category under the SSDCP ECD that applies to the structure the subject of the order, the erection of the structure was not development that could be carried out without development consent in accordance with the zoning table.

Was it exempt development (s 76(2))?

1. In determining whether the development was exempt development under s 76(2) of the EPA Act, the relevant planning instrument that creates categories of and requirements for exempt development is the SEPP. Although both the SEPP and the SSDCP ECD were in force at the relevant time, the SEPP provides at cl 1.9 that if "this policy and a non-standard plan specify the same development as exempt development, the non-standard plan does not apply to that development." Given that the SSLEP ECD was a "non-standard plan" and contains provisions regarding awning and pergola developments that are similarly contained in the SEPP, for the purpose of determining whether the structure is exempt development the SEPP applies to the exclusion of the SSLEP ECD.
2. At cl 1.15, the SEPP provides that exempt development is "development that is specified in an exempt development code that meets the standards specified for that development and that complies with the requirements of this Division" of the SEPP.
3. The exempt development code is in Division 1 of Part 2 of the SEPP. It contains numerous subdivisions specifying different types of development that are exempt and the development standards for those types of development. In accordance with cl 1.15, the structure must meet the development standards in order to be exempt development. There are two subdivisions under which the structure may fall.
4. The first is subdivision 5 of the SEPP, which states the following: Subdivision 5 Awnings, blinds and canopies 2.9 Specified development The construction or installation of any of the following structures over a window or door opening is development specified for this code if the structure is not constructed or installed on or in a heritage item or a draft heritage item: (a) an awning or canopy associated with a residential use, (b) a blind (including a storm blind, security blind or sun blind) or similar structure for any purpose. 2.10 Development standards The standards specified for that development are that the development must: (a) not have an area more than 10m2, and (b) not project beyond the external wall of the building by more than 2m, and (b1) be at least 450mm from each side and rear boundary when fully extended, and (c) if it is connected to a fascia - be connected in accordance with a professional engineer's specifications, and (d) if it is located on bush fire prone land - be constructed of non-combustible material, and (d1) if it is constructed or installed on or in a heritage conservation area or a draft heritage conservation area - be located in the rear yard, and (e) not be used for advertising.
5. The Council's evidence is that a site inspection has demonstrated that the awning has a nil setback to the side (north and south) property boundaries, projects beyond the 2m requirement and has an area greater than 10m2. Ms Sargent disputes that the structure projects beyond the 2m requirement and has an area greater than 10m2, and her evidence in the Statement of Facts and Contentions is that the structure measures 2m in length from the external wall and is 3.7m wide. However, a survey was not provided to verify the dimensions of the structure. Notwithstanding this, I accept from the evidence and from my own observations that the structure has a nil setback from the side boundaries and therefore does not meet the development standards for awnings set out the SEPP, and therefore is not exempt development under that subdivision.
6. The second is Subdivision 6 - Balconies, decks, patios, pergolas, terraces and verandahs, which reads: "Subdivision 6 Balconies, decks, patios, pergolas, terraces and verandahs 2.11 Specified development The construction or installation of a balcony, deck, patio, pergola, terrace or verandah (whether free standing or attached to the ground floor level of a building, or roofed or unroofed) is development specified for this code if it is not constructed or installed on or in a heritage item or a draft heritage item or on land in a foreshore area. 2.12 Development standards The standards specified for that development are that the development must: (a) (Repealed) (b) have an area of not more than 25m2, and (c) not cause the total floor area of all such structures on the lot to be more than: (i) for a lot larger than 300m2 - 15% of the ground floor area of the dwelling on the lot, or (ii) for a lot 300m2 or less - 25m2, and (d) not have an enclosing wall higher than 1.4m, and (e) be located behind the building line of any road frontage, and (f) be located at a distance from each lot boundary of at least: (i) for development carried out in Zone RU1, RU2, RU3, RU4, RU6 or R5 - 5m, or (ii) for development carried out in any other zone - 900mm, and (g) (Repealed) (h) to the extent it is comprised of metal components - be constructed of low reflective, factory pre-coloured materials, and (i) have a floor height not more than 1m above ground level (existing), and (j) if it is a roofed structure attached to a dwelling - not extend above the roof gutter line of the dwelling, and (j1) be no higher than 3m at its highest point above ground level (existing), and (k) if it is connected to a fascia - be connected in accordance with a professional engineer's specifications, and (l) be constructed or installed so that any roofwater is disposed of into an existing stormwater drainage system, and (m) not interfere with the functioning of existing drainage fixtures or flow paths, and (n) if it is located on bush fire prone land and is less than 5m from a dwelling - be constructed of non-combustible material, and (o) if it is constructed or installed in a heritage conservation area or a draft heritage conservation area - be located behind the building line of any road frontage.
7. The Council's evidence is that the structure is not located at least 900mm from the property boundary, is located higher than 3m above the existing ground level and is not located behind the building line of any road frontage, being visible from Louis Street at the rear. This evidence was not challenged by Ms Sargent, and I therefore accept that the structure does not meet the development standards for a balcony, deck, decks, patio, pergola, terrace or verandah and is therefore not exempt development under that subdivision.
8. Further, the site is located within a heritage conservation area under both the SLEP 2012 and the SSLEP 1998, which means that in order to qualify as complying development under cl 4.3 and 4.4 of the SEPP, alterations and additions to the external area must be contained to the ground floor of the dwelling. As the structure also connects to the first floor, it does not meet this requirement and a complying development certificate has not been issued in any event.

The structure required development consent (s 76A)

1. In any event, s 76A(1) of the EPA Act makes it clear that: "(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."
2. Clause 23A of the SSLEP was referred to by Ms Sargent and provides (insofar as it is relevant): "(1) A person must not: (a) demolish or alter a building or work within a heritage conservation area or heritage streetscape area, or (b) damage a relic within any such area, or (c) excavate land for the purpose of discovering, exposing or moving a relic within any such area, or (d) damage or despoil a place within any such area, or (e) erect a building or subdivide (otherwise than by a strata plan) within any such area, or (f) damage any tree or land within any such area, or (g) make structural changes to the interior of a building or work within any such area, except with the consent of the consent authority."
3. Whilst neither s 76A of the EPA Act, nor cl 23A of the SSLEP, was raised by the Council, it provides absolute certainty that the structure required development consent at the time it was constructed as it constituted development either to "alter a building or work within a heritage conservation area" or to "erect a building… within any such area".
4. As a result, whether the structure is defined as an awning or a pergola, it required development consent at the time of construction and is therefore liable to an order under s121B for its demolition.

Is the order appropriate?

1. Given that the Council, and therefore the Court, retains discretion as to whether an order for demolition should be issued, a question arises as to whether the order is appropriate in the circumstances. Such a question arises particularly where some of the differences between the structure and an exempt development might be considered minimal.
2. The Council submits that the order is appropriate based on the following:

• The evidence of the building surveyor that the awning does not comply with the BCA with regard to setback and combustible roof cladding, and would therefore present a fire hazard as it would not reduce the spread of fire to neighbouring properties;
• The evidence of the heritage expert that angled nature of the awning extending beyond the roof line detracts from the significance of the contributory building and is not consistent with the objectives of SLEP 2012 regarding heritage conservation;
• The evidence of the town planner that the structure prevents adequate solar access to the dwelling as compared to the requirements of cl 4.1.3.1 of the SDCP 2012, and that the impacts on solar access on the dwelling to the south are not known; and
• The evidence of the town planner that the awning does not achieve design excellence in accordance with cl 6.21(4) of the SLEP 2012 as it is not in keeping with the scale of the dwelling because it extends beyond the dwelling at ground level, creates an appearance of a larger first floor, and is not constructed with materials and finishes that are of a high standard.

1. Ms Sargent disputes this evidence, and submits that the material used complies with the relevant building standards, being laserlite 3000. Ms Sargent asserts that there are various other structures in the area which are more visually obtrusive in their inconsistency with the heritage conservation area, and that the structure has no impact on the adjacent property as it would merely impact their the rear yard. Ms Sargent also points out that the nil setback is appropriate given that the houses are attached terrace houses. Ms Sargent also submits that none of the provisions of SDCP 2012 or SLEP 2012 are relevant, as the structure pre-dated those instruments.
2. In considering the evidence, it is difficult to accept the opinion evidence of the building surveyor, Ms Kavanagh, for two reasons. First, her report does not set out any reasons for the conclusion that the polycarbonate roof is combustible. No analysis is revealed as to the material used (laserlite 3000) and why it does not meet the BCA standards. Second, the report does not explain her opinion that the structure is not a pergola, which is an allowable encroachment under the BCA. Ms Sargent cross-examined Ms Kavanagh and Ms Royall on this issue, and the evidence given in court was that it is not a pergola because the definition in the SEPP is that pergolas are not roofed. However, there is no such definition in the SEPP. Therefore, I cannot accept that the evidence of the BCA expert justifies the issue of the order.
3. In my view, some uncertainty also arises regarding the opinion of the heritage specialist in circumstances where there are already structures that disturb the rear building line of the conservation area and where the SEPP allows the construction of an awning at the rear of a dwelling in a heritage conservation area. Notwithstanding this, it is clear that Mr Wan has considered the structure and the attributes of the conservation area, and is of the opinion based on his expertise that the nature of the structure and its location detracts from the significance of the heritage conservation area. Ms Sargent has not relied on any expert opinion to the contrary, and the evidence of Mr Wan was not disturbed in cross-examination. Further, I accept that the design of the structure is not sympathetic with the characteristics of the heritage conservation area.
4. Most compelling, however, is the potential impact of the structure on access to sunlight in the private open space of the neighbouring property to the south. The structure is of a height and size that could impact on access to sunlight in that space, particularly given the narrow length of each of the lots. The development application process provides the appropriate forum in which that impact could be properly assessed. By erecting the structure without that process taking place, the impact of the structure is not known. Similarly, the structure prevents adequate access to sunlight in the private open space at the subject property.
5. I accept also that the angled roof results in an appearance of a larger first floor, therefore adding bulk to the building, which does not reflect the design excellence required by the current planning objectives set out in the SLEP 2012.
6. For all of the above reasons and based on the evidence of the heritage specialist and the town planner, I am of the view that the order for demolition is appropriate.
7. Further, Ms Sargent has not made any attempt to obtain a building certificate for the structure under the EPA Act, and nor is there any evidence that she has been in communication with the Council's officers for assistance in completing a development application form. It also may be possible for her to construct a structure that is exempt development under the SEPP, but no concession has been made by her in that regard. As such, it is appropriate that the order remain in place.
8. The orders of the Court are: 1. The appeal is dismissed. 2. The exhibits are returned, except for exhibits 1, C & D. ………………………. Commissioner Gray

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