Strathfield Municipal Council (the Council) has commenced Class 4 proceedings seeking inter alia declaratory relief that the Respondent has carried out work at a premises at 27 Boden Ave Strathfield (the property) in breach of a stop work order issued on 14 September 2020. The property is used for residential purposes and a vacant unfinished new house presently occupies it. The Council has filed a notice of motion dated 22 September 2021 seeking an order under r 23.8(1)(a) of the Uniform Civil Procedure Rules 2005 (UCPR) allowing its officers to inspect all areas of the property and take photographs and a video. The order is opposed by the Respondent.
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Brief history of proceedings
The Respondent commenced Class 1 proceedings (2020/291053) against the Council on 9 October 2020 in relation to a stop work order issued by the Council under s 9.34 and Sch 5 of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) in relation to the property. The Respondent also commenced Class 1 proceedings (2021/69569) on 11 March 2021 appealing against the Council's refusal of development application 2020.239 determined on 5 March 2021. Separate Class 1 proceedings (2021/69575) were commenced on 11 March 2021 appealing against the Council's refusal of a Building Information Certificate Application in relation to the property.
On 27 November 2020 Preston CJ made orders in proceedings 2020/291053 that the stop work order issued by the Council be partially stayed subject to conditions. The Council's stop work order continued to prevent works other than those specifically exempted by Preston CJ.
On 30 June 2021 the Council sought orders in proceedings 2020/291053 including that pursuant to UCPR r 23.8, Mr Bradley Pope and Mr Terrence Wong from the Council be granted access to the property for the purposes of an inspection of all areas of the property. On 12 July 2021, Pepper J made that order by consent and ordered that the persons granted access were permitted to take photographs and video the property. On 13 July 2021 the Court varied the orders made on 12 July 2021 so that Mr Nascimento could attend the inspection in place of Mr Wong. An inspection took place on 15 July 2021.
By way of summons dated 2 August 2021 the Council commenced Class 4 civil enforcement proceedings (2021/220120) under s 9.45 of the EPA Act. The Council sought a declaration that, in breach of s 4.2 of the EPA Act, the Respondent had carried out works not in accordance with the development consent issued on 22 November 2017 and not in accordance with the plans that are the subject of the construction certificate issued on 30 July 2018. The Council also sought a declaration that, in breach of s 9.37 of the EPA Act, the Respondent has failed to comply with the terms of the stop work order. It further sought a declaration that, in breach of s 9.37 of the EPA Act, the Respondent failed to comply with the terms of a compliance order issued by the Council. The Council additionally sought an order that the Respondent be restrained from using or carrying out works on the property except in accordance with the development consent, plans the subject of the construction certificate or other development consent as may be granted.
By way of notice of motion dated 4 August 2021 the Council sought an interlocutory injunction that the Respondent immediately cease all works at the property pending determination of the substantive proceedings, as well as costs. On 11 August 2021, I made orders that:
1. The Respondent immediately cease all works at Lot 62 in DP 15955 otherwise known as 27 Boden Street Strathfield and for the injunction to remain until finalisation of these proceedings.
2. These proceedings are returnable before the Registrar within seven days after determination of the Class 1 proceedings 2020/00291053, 2021/00069569 and 2021/00069575.
3. The Respondent is to pay the Applicant's costs of the notice of motion filed 5 August 2021 as agreed or assessed.
The hearing for the three Class 1 proceedings is set down for 26 October 2021 for 2 days.
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Mr Galante
Mr Andrew Franceso Galante swore an affidavit dated 14 October 2021 that was read in part. He is a Regulatory Officer (Ranger) for the Council.
On 19 September 2021, Mr Galante attended the property as part of a routine inspection and observed that the skip bin in the front yard of the property was filled to the rim with building materials. He had a conversation with an unidentified neighbour who said that there were 10 people on the property the day before including the owner and family and that they observed works being carried out until about 4:00PM.
Mr Galante conducted another inspection on 24 September 2021 with a colleague and observed a male contractor wearing an orange high visibility singlet exiting the front door with two buckets filled with what appeared to be construction materials. He swiftly walked back into the dwelling after Mr Galante made eye contact. Mr Galante made a further inspection on 29 September 2021 with a colleague and observed the Respondent's husband, Mr Rabi Malass leaving the property with a contractor wearing a high visibility sweater. On 11 October, Mr Galante observed a male contractor exit the property with an extension cord and Mr Malass leaving the property.
In response to Mr Malass's affidavit, Mr Galante says that the Council needs access to all areas to monitor compliance with the orders of 11 August 2021. He denies that he or other council officers accessed the property without the Respondent's consent and insists that he took photographs and videos from the public footpath.
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Ms Ayas
Ms Ayas is a solicitor employed by the Council's solicitors. In an affidavit dated 22 September 2021, she deposed to the history of the proceedings summarised above. She sent a letter to the Respondent's solicitors on 16 September 2021 seeking access to the property for an inspection by council officers to monitor compliance with the stop work order and court orders. During email exchanges annexed to the affidavit, she deposes that the Council provided sufficient notice of its intention to commence further interlocutory proceedings to obtain an order for access should access be denied.
In an affidavit dated 14 October 2021, Ms Ayas deposed that she had a telephone conversation with an unidentified neighbour on 7 October 2021 in which the neighbour testified to seeing workers come in and out almost every day from the property with the sound of drilling, dust and smoke emanating from the property. Another unidentified neighbour noticed an NBN truck parked outside the property on 7 October and it appeared that the NBN was being installed at the property. The neighbour also saw delivery trucks attending the property in late afternoons and workers and contractors attending most days between 11:00AM and 12:30PM. They also saw Mr Malass's truck outside the property and about three or four different vans attending the property on 7 October 2021. The same neighbour also saw two men unloading glass from a truck on 8 October 2021.
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Respondent's evidence
Mr Rabi Malass swore an affidavit dated 12 October 2021 in which he deposed that council officers attended and took photos of the property on many occasions from 16 December 2020 to 15 July 2021. He had installed two live video cameras on the front façade of the property facing the street and observed three different council officers attending the property on most days since 11 August 2021. They usually attended three times a day from Monday to Saturday, taking photos and pointing cameras in a way that suggests they were videoing. On many of these occasions he witnessed the officers obtaining access to the property through the front fence without his authorisation. They stayed for several minutes. He has also observed council officers outside the property. On 11 October 2021 he observed two council officers attempting to enter through the front gate. His neighbour Charlie, who has been conducting works on his property causing him to be on the roof, told Mr Malass that he had witnessed on several occasions council officers opening the front fence and entering the property. Charlie has also seen council officers holding up cameras whilst within the property and pointing cameras through the front windows and fence. Mr Malass attached photos and video extracts of the officers standing on the public verge.
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Council's submissions
The Council submits that an order is warranted because of the need to ensure compliance with the stop work order, as varied by the orders of November 2020 and the injunction of 11 August 2021. The evidence of anonymous complaints of neighbours of work occurring regularly, that council officers as identified in Mr Galante's affidavit undertaking regular random inspections have always seen Mr Malass and other people who appear to be workmen together on the property gives rise to a clear inference that work is being undertaken inside the house in breach of these orders. The Council accepts that it cannot establish that there are contractors at the property. There should be no work being carried out at the property given the stop work order issued, as varied in November 2020 to allow very limited works in early 2021 and the injunction preventing work made on 11 August 2021.
In reply, the Court has jurisdiction to make the order sought under UCPR r 23.8, the Council's case in the Class 4 proceedings is not time limited as the Respondent submitted.
There is no certainty that there will be an on-site inspection in the pending Class 1 proceedings next week or that all areas of the property will be able to be inspected on that occasion if a site inspection is held.
The Council wrote seeking agreement for access to the Respondent's solicitor in order to try and resolve the matter without the need for a notice of motion. It should have its costs paid if successful.
A recent inspection is necessary in order to particularise properly the Class 4 proceedings.
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Respondent's submissions
The Court does not have jurisdiction to make the order sought as the notice of motion does not seek an order "enabling the proper determination of any matter in question in the proceedings" as UCPR r 23.8 requires. The summons is drafted on the basis that it is directed only to work carried out up to the time of filing the summons on 2 August 2021, not to work that may be being carried out now.
Further there are no proceedings on foot, such as contempt proceedings, to justify the use of the section by the Council. Such an order is not intended to be used for evidence collection for fresh proceedings.
There is another mechanism to undertake an inspection under s 9.16 of the EPA Act which enables inspections by council officers with a search warrant in the case of residential property. The Council could have availed itself of that mechanism.
An order for access was made by consent in July 2021. Mr Pope council officer swore a lengthy affidavit dated 4 August 2021 following that inspection which was the basis for the commencement of the Class 4 proceedings.
The three Class 1 proceedings are listed for hearing on 26-27 November 2021 and a site inspection is likely to occur. Council officers will then have access to the property in any event.
Mr Galante's affidavit is not probative that any work is taking place on the premises. Mr Malass is entitled to visit his wife's property. That other persons are present with him is not prevented by any court orders or the stop work order. The nature of the work they may be undertaking is unknown from the affidavit, they could be cleaning. A full skip bin is not probative of anything.
The evidence of conversations with anonymous neighbours should be given no weight at all.
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Consideration
The Court has jurisdiction to make the order for access sought. The chapeau of UCPR r 23.8 is wide "any matter in question in any proceedings" includes the orders sought by the Council for the reason given by it. The Council's case is not limited to work conducted up to the time proceedings are commenced. The current state of the property is relevant to the Class 4 proceedings.
The evidence of the Council viewed as a whole gives rise to a reasonable inference that work in breach of the August 2021 court orders and the stop work order as amended may be taking place, warranting an inspection inside the incomplete house. The skip bin identified by Mr Galante as full is behind a substantial metal fence on the Respondent's property suggesting it is unlikely anyone else could access it. The unidentified workmen have the potential to be carrying out building work given Mr Galante's observations of what they were doing and given he observed a workman in every one of his numerous inspections. The anonymous complaints of neighbours who do not wish to be identified can be given some weight.
The work that may be taking place is internal in the house structure and can only be viewed with an inspection.
I am not able to determine the truth of the allegations made by Mr Malass that council officers trespassed on the property. The only photographs attached to his affidavit show council officers on the public verge. Mr Galante denies that he trespassed in his affidavit.
That the Council has undertaken a lot of inspections over many months predating these proceedings is not relevant.
The three Class 1 proceedings to be heard shortly are separate to the Class 4 proceedings, there is no certainty that an on-site inspection will be held and if held may not encompass all the areas the subject of the Class 4 proceedings.
There is no obligation imposed on a council to use powers under s 9.16 of the EPA Act instead of seeking an order under UCPR r 23.8. That another mechanism exists is irrelevant.
I will make the orders sought by the Council in its notice of motion.
As the Council has been successful in obtaining the order sought its costs of this notice of motion ought to be paid by the Respondent.
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Orders
The Court orders:
1. Pursuant to r 23.8(1) of the Uniform Civil Procedure Rules 2005 Mr Bradley Pope and Mr Brett Daintry from Strathfield Municipal Council are granted access to 27 Boden Avenue Strathfield from 10am on Friday 22 October 2021 for the purposes of an inspection to all areas of the property.
2. The persons granted access in accordance with Order 1 have permission to take videos and photographs during the inspection.
3. The Respondent must pay the Applicant's costs of the notice of motion dated 22 September 2021.
4. Liberty is granted to the parties to apply for an urgent mention on two days' notice.
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Decision last updated: 20 October 2021