Sutherland Shire Council v Nader

CASES CITED: Warringah Shire Council v Sedevcic (1987) 10 NSWLR 335

APPLICANT Mr R O'Gorman-Hughes SOLICITOR LEGAL REPRESENTATIVES: Home Wilkinson Lowry RESPONDENT Mr Burrell (solicitor) SOLICITOR Burrell Solicitors

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

EX TEMPORE JUDGMENT 1 Her Honour: These are Class 4 proceedings seeking a declaration that unauthorised building works have been undertaken as part of the construction of a new house pursuant to development consent 03/0981 at 10 Macpherson Place, Illawong by the Respondents, in breach of s 76A of the Environmental Planning and Assessment Act 1979 (the EP&A Act). Orders for removal of those works are also sought. The building is under construction and not yet complete. These proceedings concern building work carried out on the roof.

2 The Council relied on the affidavit evidence of the Council town planner Ms Pinfold sworn 16 February 2007, 16 May 2007, 22 May 2007 and Mr Deboussi of 8 McPherson Place Illawong, the immediate neighbour. The Respondent relied on an affidavit of Mr Marshman, town planner, dated 7 May 2007 and Mr Panovski, airconditioning installation contractor, dated 7 May 2007. The planners also prepared a joint report (exhibit C).

3 A history of the granting of development consent and subsequent s 96 modification applications, is relevantly set out in the Council's written submissions at par 4-14 as follows: On 29 December 2003 Council granted the first-named Respondent development consent 03/0981 ("the consent") for the erection of a two storey dwelling and pool at 10 Macpherson Place Illawong ("the property"). The consent plans show a dwelling comprising three levels. A lift shaft projects above the ceiling of the third level. At all relevant times, development consent was required pursuant to Sutherland Shire Local Environment Plan 2000 for development for the purposes of a dwelling on the property. On or after 8 July 2004 the Respondents commenced construction of the dwelling. During construction the Respondents carried out the unauthorised work, which comprised: (a) rooms both higher, and with a floor space 56m2 greater, than the lift shaft shown on the approved plans; (b) windows and glazed sliding doors (also not shown on the approved plans) to those rooms; (c) a parapet higher than that shown on the approved plans.

On 21 July 2005 the first-named Respondent lodged an application to modify the consent to seek retrospective approval of the unauthorised work ("the first modification application"). On 26 August 2005 Council refused the first modification application. On 5 September 2005 Council issued an order under section 121B of the EP&A Act requiring the Respondents to demolish and remove part of the unauthorised work, namely the non-approved walls of the plantroom, and construct the plantroom in accordance with the consent plans. On 27 September 2005 the first-named Respondent lodged an application for a review of Council's refusal of the modification application under section 82A of the EP&A Act. Council refused that review application on or about 5 December 2005. On 15 August 2006 the Respondents lodged a second application to modify the consent ("the second modification application"). On 10 October 2006 Council refused the second modification application.

4 In the development consent 03/0981 approved by the Council the only structure approved on the roof was a room, 4.5m by 6m, which had no windows and a solid door with internal stairs leading to a lift shaft overrun to be located in the approved room. A parapet was also approved at a certain height.

5 What has been built is a much larger room with windows on two sides described on one plan shown in evidence as a plant room. The evidence of Ms Pinfold, the Council's planner, is that this is a habitable room due to the finish of the walls and ceiling, the provision of air conditioning to it, and the installation of windows for light and ventilation. Also constructed without consent is a separate air conditioning equipment room immediately adjoining but separate from the plant room. The work undertaken in relation to the air conditioning system is detailed in the affidavit of Mr Panovski, the installer of the air conditioning system. He estimated that the system is 80 per cent complete. A vertical shaft for the internal ducting work for the air conditioning system has been built within the partially constructed building.

6 The parapet on the outside of the roof has been constructed higher than the approved height in the development consent.

7 The Respondents' solicitor admits the unauthorised work as generally identified by Ms Pinfold's affidavit evidence as shown in Exhibit F, see par 27.2 to 27.5, and in addition that the parapet as built is 0.33m higher than the approved height of 27.6m. He does not admit that the measurements at par 27.1 in exhibit F are accurate due to the lack of a survey plan from which to identify relative levels. In the absence of any competing evidence concerning the height of the building I accept Ms Pinfold's evidence at par 27.1 in exhibit F.

8 The Respondents do not oppose the making of the declaration sought by the Council in relation to the unauthorised work. They oppose the demolition orders sought by the Council and propose alternative orders which would leave in place the unauthorised work and require additional work to restrict access on the roof. They would also agree to an order that access to parts of the open roof area would only be available to service personnel.

Impact of the unauthorised work 9 Ms Pinfold, Council's town planner, gave affidavit and oral evidence about the impact of the illegal work in relation to adverse impact on the amenity on neighbours due to privacy concerns, and adverse impact on the streetscape because of the greater bulk, height and scale resulting from the unauthorised work. The additional larger structures on the roof present as a four storey building, which is inconsistent with the built form in the area. She referred to the failure of the "as built" structures to comply with the height controls and floor space ratio (FSR) controls of the Sutherland Shire Local Environment Plan 1996 in force at the time development consent was granted. I note it is also in breach of these provisions in the Sutherland Shire Local Environment Plan 2000. She exhibited to her affidavit photographs of the building from the surrounding area. In MFI 3, which was attached to the joint report of the planners, she identified on photographs the area of building she considered exceeded that authorised by the development consent. I note that Mr Marshman stated he could not agree with that depiction as it was not to scale but I consider it is able to be viewed as generally indicative of the scale of the unauthorised works from the position from which the photograph was taken.

10 The immediate neighbour at 8 McPherson Street, Mr Deboussi, also gave affidavit evidence about his concerns about noise and loss of privacy as a result of the additional structures built, particularly as the roof of 10 McPherson Street overlooks his property.

11 Mr Marshman, town planner, gave evidence that the impact of the unauthorised work was acceptable in a town planning sense. He considered it could not be viewed from the front of the house at street level or from nearby in the street in any significant way. He exhibited several photographs taken in the immediate vicinity of 10 McPherson Street, such as outside the front of the property, which showed only a small part of the unauthorised structure on the roof was visible.

12 He identified in exhibit RSM1, Tab 3 to his affidavit, a plan of the unauthorised structures and identified the location of three planter boxes intended to be used as a means of restricting access to people of parts of the roof which would overlook the neighbouring properties on either side.

13 This proposal was rejected as unsatisfactory by Ms Pinfold because it would leave the existing structures in place. I have identified above why she considered these were unsatisfactory.

14 The planners also agreed on various height measurements and floor areas in their joint report. They agreed that the built form on the roof top has a floorspace of 84m2 (the room as approved was 26.55m2). They agree that the increase in FSR as a result of the unauthorised work is 0.077:1.

15 They disagreed about the overall change in FSR although not to a significant degree. Ms Pinfold considered it was 0.53:1 and Mr Marshman 0.5:1. The allowable FSR is 0.4:1. Even if Mr Marshman's figure is adopted the change in FSR is large.

16 During concurrent evidence given by the planners there was no major change in their respective views. Exercise of discretion 17 The key issue in the case is therefore how I should exercise my discretion in determining whether orders for demolition should be made. Both parties relied on the decision of Kirby P in Warringah Shire Council v Sedevcic (1987) 10 NSWLR 335 at 339 in support of their submissions, see points 1 to 9.

18 An important part of the exercise of my discretion is to uphold the legislative purpose of the integrated and co-ordinated nature of planning law (Kirby P at 340, point 4) as the Court is enforcing a public duty. An important part of that planning law system is the requirement to undertake development in accordance with development consent granted under the EP&A Act. There is no doubt that the work is unauthorised and clearly benefits the Respondents in that they gain a useable indoor and outdoor recreation space for which they do not have consent on the roof of the house. As identified by Kirby P in Sedevcic at 341, point 5: It is only in this sense that "special" circumstances need to be established to secure a favourable exercise of the discretion provided by s 124. There is nothing in the Act by which the discretion is fettered or limited to "special cases", as Mahoney J, as he then was, pointed out in analogous circumstances in Blacktown Municipal Council v Friend (at 197). But the obvious intention of the Act is that, normally, those concerned in development and use of the environment will comply with the terms of the legislation. Otherwise, if unlawful exceptions and exemptions became a frequent occurrence, condoned by the exercise of the discretion under s 124, the equal and orderly enforcement of the Act could be undermined. A sense of inequity could then be felt by those who complied with the requirements of the Act or who failed to secure the favourable exercise of the discretion under s 124. 19 Council argued that in light of the adverse impacts demolition should be ordered. The breach is not technical, unnoticeable other than to a person well versed in the relevant law. I agree. The Council submitted there has been no unreasonable delay in bringing this action. I agree and the Respondent did not argue that there was.

20 The breach has not been shown to have a beneficial effect on the locality. I agree with and accept Ms Pinfold's evidence in that regard. The proposal of Mr Marshman which allows the unauthorised structures to remain and limits access to the outdoor areas of the roof top does not ameliorate the impact of the larger structures now on the roof.

21 The Respondent's solicitor argued that the exercise of the Court's discretion mirrors a Class 1 merit appeal and that I must therefore consider the impact of the unauthorised work in a town planning sense, and submitted there is no impact if such an analysis is undertaken. I have broad discretion as identified in Sedevic, I do not agree that this Court in Class 4 proceedings should be undertaking a merits assessment as to whether an alternative scheme proposed has town planning merit, however, as it would in Class 1 proceedings where that is the Court's function. The Respondents have agreed to make what their solicitor calls a "significant concession" in that they will agree to a Court order that no person shall access specified roof areas except for maintenance purposes, a concession not reflected in the development consent conditions. This approach is not embraced by the Council and is not a matter I consider is particularly relevant to the exercise of my discretion in this case. I note that even if I did make such an order it binds only the parties in these proceedings and not future owners of 10 Macpherson Street as it is not part of the development consent conditions that run with the land. Successors in title are not therefore bound by such an order.

22 As identified above I do not consider this is a technical breach unnoticeable to an ordinary person with no understanding of development law. That is clear, inter alia, from the affidavit of the neighbour Mr Deboussi.

23 It was also argued by the Respondents' solicitor that there was no utility in making demolition orders particularly in relation to the air conditioning room as this would simply mean that this would have to be rebuilt elsewhere. I do not agree that there is no utility in making the orders given that that room is joined to and part of the larger unauthorised structure. I do not consider it should be considered on a stand alone basis. It appears from the evidence that if demolition is ordered there will be ducting left exposed on the roof and that one supply and return unit will have to be stored somewhere. I do not consider that is a reason I should not order demolition. The Respondent will have to consider lodging a development application for an alternative room for the location of the air conditioning equipment as well as two outdoor condenser units. It appears from the oral evidence of Mr Panovski that with careful placement the approved structure may be able to accommodate the air conditioning system intended to be installed, as identified in sketch B in exhibit E. I do not accept the Respondents' solicitor's submission that it is punitive to require demolition of the air conditioning room.

24 In relation to the reduction in height of the parapet, the submission was also made that that had no utility, but I do not accept that. It is clear from Ms Pinfold's evidence that the reason the height of the parapet was approved at 0.95m above the first floor ceiling height by the Council was to ensure the parapet was not high enough to be a balustrade as defined under the Building Code of Australia. This together with the small windowless building approved to house the lift shaft overrun ensured that the roof was not used as a rooftop terrace. Use of the roof for the purpose of a recreation area was not sought in the Respondents' development application. There is clearly utility in having the parapet reduced to the height for which it has approval.

25 The Respondents have not appealed to this Court against either refusal by the Council of two s 96 modification applications as they are entitled to do. Nor did they appeal against the s 121B order issued by the Council. I agree with the Council's submissions that this is not a matter where orders should be postponed to enable further applications for consent.

26 While there will clearly be expense involved in any work required to be undertaken by Court orders there is no evidence of what that expense is likely to be and it is expense occasioned by the Respondents' actions in undertaking unauthorised work in any event.

27 I consider I should make orders for demolition of the unauthorised work, but in light of the Respondents' solicitor's submissions that there may be difficulty in implementing what has been approved in relation to the lift shaft, will allow the parties a short period to adduce further evidence, if needed, before finalising the orders. The issue of the timeframe for the compliance with orders also arises. I will also need to consider the issue of costs.

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