Sutherland Shire Council v Sud

Land and Environment Court (NSW)|2014-04-16|Before: Craig J

Solicitors: Sutherland Shire Council (Applicant) Kiki Kyriacou Lawyers (First and Second Respondents) File Number(s): 40623 of 2013

Background

On 22 April 2010, development consent 10/0119 was granted by the Council for demolition of the existing dwelling on the Land and construction in its place of a new dwelling, pool and detached garage (the Development Consent). Condition 1 of the Development Consent required that the development be implemented "substantially in accordance with the details and specifications set out" in a number of plans identified by number in that Condition. Sheet 1 of those plans, entitled "Site Plan", showed, in outline, a "proposed double storey dwelling" with "flat concrete roof" at a designated level. It also showed, in a conventional manner, the canopy outline of two trees in the rear or northern yard of the Land with the words "existing trees to be retained" written on the plan. Sheet 3 of those plans showed a first floor balcony on the rear or northern elevation of the proposed dwelling with a width of approximately 13m and a depth from the northern wall of about 4m. The east and west elevations shown on Sheet 4 of the plans depicted a cantilevered slab of about 1m measured from the northern face of the wall of the dwelling, leaving about 3m of that balcony uncovered.
Condition 32 of the Development Consent required retention of the two trees marked on the architectural plans as intended to be retained. Both trees were identified as Angophora costata (Sydney Red Gum). Paragraph (a) of that Condition required the erection of protective fencing, 1.8m high, to be installed "at a minimum radius of 3m from the trunk of each tree". That fencing was required to be installed prior to commencement of any works. Paragraph (c) of the Condition required that no development or associated activity be permitted within the fenced tree protection zone, being work that included "installation of services (including stormwater), removal of top soil, stockpiling of soil or building materials".
On 10 November 2011, Mr Pracy inspected construction work on the Land. He observed that the roof slab had been extended over the full depth of the northern balcony. The extended slab was supported on the northern and eastern edge of that balcony by a total of five columns. Neither the columns nor the northern extension of the roof slab by 3m were shown on the plans that were the subject of the Development Consent. The approved plans showed the 1m slab over the northern balcony to be fixed at a lower level than the first floor ceiling and therefore at a lower level than the roof slab.
An application to modify the Development Consent, including extension of the roof slab to cover the entire first floor balcony, was lodged with the Council on 5 September 2011. That application was refused on 16 November 2011. A further application to modify the consent, including extension of the roof slab over the first floor balcony, was lodged with the Council on 24 November 2011. That application was refused on 19 January 2012.
The First Respondent appealed to this Court from the Council's refusal of the second modification application. The appeal was heard by a Commissioner of the Court on separate days in late May and early June 2012. By a decision delivered on 13 June 2012, the appeal was allowed in part but the extension of the roof slab over the first floor balcony and its supporting five columns were expressly excluded from that approval (Sud v Sutherland Shire Council [2012] NSWLEC 1162 at [16]-[20] and [31]).
As a consequence of that decision, an amended construction certificate was issued by Youssef El-Masri, the private certifier retained by the Second Respondent. The plans identified by Mr El-Masri in his construction certificate included the notation that the two Angophora costata trees in the rear yard were to be retained. While drawings that were the subject of that certificate showed the extension of the roof slab over the northern first floor balcony, on each elevation plan upon which the building was so depicted the columns and roof extension were outlined and the words "the extension of roof slab and supporting columns over balcony are not approved and hence not part of this approval" written on each plan.
In addition to architectural drawings, a drawing of the proposed absorption trench, prepared by an engineer, was included by Mr El-Masri in the construction certificate. The latter drawing showed both the location and detail of that trench. At its nearest point, it showed the absorption trench to be 3m to the west of the trunks of each of the Angophora costata trees growing in the rear yard.
Mr El-Masri's modified construction certificate is dated 21 June 2012. It shows the Second Respondent as the Applicant for the certificate.
Following the issue of the modified construction certificate, Mr Pracy visited the Land on 31 July 2012. At that time construction of the dwelling on the Land was being undertaken. In the rear yard he observed the two Angophora costata trees and also a partly constructed absorption trench. That trench was described as being 4m across, 5m long and 600mm high. The height was established by framework concrete block walls in which there appeared to have been placed steel reinforcing rods. That "trench" or structure was measured as being approximately 1950mm from the trunk of the Angophora costata described as Tree 1 and 2200mm from the trunk of the Angophora costata described as Tree 2.
Mr Pracy next returned to the Land on 3 August 2012 while construction of the dwelling was still being undertaken. At that time he observed that the absorption trench had been backfilled. He also observed that fill had been placed within a 3m radius of, and within the drip line of, Trees 1 and 2. The depth of fill measured next to Tree 1 was about 700mm.
Mr Pracy returned to the Land on 28 November 2012. At that time, he was accompanied by James Van Breda, the Council's environmental building compliance and tree assessment supervisor. Mr Pracy observed that a large volume of fill remained around the base of Trees 1 and 2, with the depth of fill ranging from 200mm to 1200mm.
Mr Van Breda, whose evidence is not challenged and who was not required for cross-examination, states that Tree 1 had a diameter at breast height of 610mm and was estimated to be 14m in height. Tree 2 had a diameter at breast height of 400mm and was estimated by him to be 10m in height. He also observed a large volume of "uncontained fill" within a 3m radius and within the drip line of both trees. This unconsolidated fill extended over the majority of the rear yard. No tree protection measure was in place apart from what is described as "some discontinuous pieces of reinforcement mesh that appeared to have been put in place following the introduction of the fill". Mr Van Breda also observed that the absorption trench had been constructed less than 3m from and to the south of Trees 1 and 2.
On 3 December 2012, the Second Respondent lodged with the Council an application under s 149B of the EPA Act for a building certificate in respect of the extension of the roof slab over the rear northern balcony. The application also related to the five columns supporting the slab extension. The building certificate application was refused by the Council on 17 January 2013.
The Second Respondent appealed to this Court pursuant to s 149F of the EPA Act from the Council's refusal of his application for a building certificate. That appeal was dismissed by a different Commissioner of the Court on 24 September 2013 (Sud v Sutherland Shire Council [2013] NSWLEC 1177). The reasons of the Commissioner identified two broad bases for so doing. The first was on planning grounds, essentially directed to the impact that the increased building form would have when viewed from surrounding properties, coupled with the increased utility likely to be made of the first floor balcony because it was fully covered. The prospect of excessive use had the potential to impact upon the privacy and amenity of users of adjoining properties.
The second basis upon which the appeal was dismissed was expressed to be on structural engineering grounds. At [53] the Commissioner noted that the joint report of engineers before him indicated that the structural certification that had been submitted in support of the slab was inadequate for that purpose, rendering it inappropriate "to issue a building certificate for only part of the roof slab, which has not been properly certified".
In the meantime, the Council had brought proceedings in the Local Court at Sutherland, charging the Second Respondent that he had committed an offence against s 125(1) of the EPA Act by reason of his failure to carry out development on the Land in accordance with the Development Consent. There were a number of particulars given of the manner in which the consent had been contravened by the Second Respondent, including the following particular: "The roof slab has been extended approximately 3m to the rear of the dwelling to cover the entire area of the first floor balcony."
The Court Attendance Notice by which the prosecution was commenced was issued on 25 May 2012. The Second Respondent entered a plea of guilty to that offence in September 2012. On 12 December 2012, he was convicted at Sutherland Local Court, fined $30,000 and ordered to pay $9,634 for the Council's costs.
The summons commencing the present proceedings was filed on 15 August 2013. Construction of a dwelling on the Land continued. That Land was revisited by Mr Pracy and Mr Van Breda on 10 October 2013. While some of the fill around Trees 1 and 2 had by then been modified, according to Mr Van Breda that fill was still about 200mm higher than the pre-existing ground level in the vicinity of those trees.
On that occasion Mr Pracy also observed that fill had been placed up to and within 900mm of the eastern and northern boundary fences of the Land. Behind the newly constructed garage located towards the rear northern boundary, a large quantity of builder's waste was observed to occupy an area of about 8m in length and extending from the fence about 3m onto the Land. Along the northern boundary fence to the east, earth to a depth of approximately 300mm had been placed abutting the timber fence. This fill extended to the eastern boundary of the Land.
At the time of that same inspection, Mr Pracy inspected the roof of the dwelling. He observed that the roof had been tiled and that conduits with electrical cabling had been located uniformly within the parapet wall that had been constructed on the edge of the roof slab. A wall above the stair access to the roof had electrical cabling passing through it at one point, apparently intended for a power point terminal. Adjacent to this electrical cabling, copper piping had been installed that was suitable to provide a gas outlet point to the roof or for water supply to the roof.
The first floor northern balcony was also inspected by Mr Pracy on that date. He observed that six power point terminals with electrical cabling had been "roughed-in" on the inside of the external columns installed to support the extended roof and also along the rear external wall of the dwelling providing further electrical outlets within the balcony area. Two copper pipe connections for either gas or water were located on the external rear wall of the dwelling, apparently to serve the balcony area. Mr Pracy also observed what was described as "aerial coax cable and (blue) data cable" that had been roughed into the second of the exterior columns on the western side of the balcony.
On the underside of the extended slab over the first floor northern balcony were four rows of "thirteen roughed in electrical cables for lighting purposes (equating to a possible 52 lights)". Given the regularity of the spacing of these electrical cables, many were observed to be within the 3m northerly extension of the roof slab.
Finally, it was revealed in the course of the hearing that three substantial airconditioning condenser units had been located on the roof of the dwelling. The Second Respondent accepted that Development Consent was required to install these items of plant and that no approval had been granted for their installation. For its part, the Council accepted that this plant could remain provided it was relocated so that each of the three units were not less than 1.5m from the internal face of the roof parapet.

Statutory planning controls

The relevant statutory instrument controlling development on the Land is Sutherland Shire Local Environmental Plan 2006 (the LEP). By reference to the LEP map, the land is within "Zone 4 - Local Housing". Development for dwelling houses upon land so zoned is development that is only permissible with development consent.
Clause 49 of the LEP is headed "Urban design - residential buildings". The chapeau to that clause requires that consent must not be given to development for the purpose of residential buildings unless the consent authority has considered a number of specified matters of relevance to that development. The expression "residential buildings" is defined in the Dictionary to the LEP in a manner that includes the erection or use of a dwelling house. Two of the matters required to be considered under cl 49 are: "(b) the extent to which any adverse impacts of the proposed development on adjoining land and open space in terms of overshadowing, overlooking, views, privacy and visual intrusion will be minimised, … (e) the extent to which any adverse impacts of the proposed development on adjoining land in terms of size, bulk, height, scale and siting will be minimised …".

Issues 1 and 2: Demolition of part of the roof slab

Among the orders sought by the Council is an order that the Second Respondent demolish and remove from the dwelling being constructed on the Land, the 3m northern extension of the roof slab that was neither the subject of the Development Consent nor approved by the Court. While the Second Respondent accepts that the 3m extension of the roof slab does not conform with the Development Consent, he opposes the making of an order for demolition. He does so on two bases. First it is contended that so much of the proceedings that seek such order constitute an abuse of process and should therefore be permanently stayed. In the alternative, he contends that the Court should, in the exercise of its discretion, decline to make such an order. It is necessary to address separately these alternate submissions.

Abuse of process

As I have earlier recorded, the Council brings these proceedings under s 123 of the EPA Act, seeking both to remedy and to restrain breaches of the Act by the Second Respondent. In the context of the roof slab, the order sought for partial demolition is remedial in nature.
The essence of the Second Respondent's submission is that the Council cannot both prosecute the Second Respondent under s 125(1) of the EPA Act for failing to carry out the development in accordance with the Development Consent and also rely upon that same breach in civil proceedings, brought under s 123, to obtain a remedial order. He submits that by operation of s 127(7) of the EPA Act, the Council was required to elect either to prosecute or to seek an order under s 124 (submissions at [3]).
Before proceeding to record the manner in which the Second Respondent developed his submissions, it is convenient to identify the relevant statutory provisions. Part 6 of the EPA Act is headed "Implementation and enforcement".
Division 3 of Pt 6 contains both ss 123 and 124. Section 124 relevantly provides: "124 Orders of the Court (1) Where the Court is satisfied that a breach of this Act has been committed or that a breach of this Act will, unless restrained by order of the Court, be committed, it may make such order as it thinks fit to remedy or restrain the breach. (2) Without limiting the powers of the Court under subsection (1), an order made under that subsection may … (b) where the breach of this Act comprises the erection of a building or the carrying out of a work - require the demolition or removal of that building or work … ". … (4) The functions of the Court under this Division are in addition to and not in derogation from any other functions of the Court."
Division 4 of Pt 6 of the EPA Act is headed "Offences". Sections 125 to 127A are found in that Division. Section 125 relevantly provides: "(1) Where any matter or thing is by…this Act…forbidden to be done…and that matter or thing…if so forbidden to be done is done, a person offending against that…prohibition shall be guilty of an offence against this Act." The prohibition relevant to the circumstances of the present case is that expressed in s 76A(1) in the following terms: "(1) 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 consent has been obtained and is in force, and (b) the development is carried out in accordance with the consent and the instrument."
The section upon which principal reliance is placed by the Second Respondent is s 127. That section relevantly provides: "127 Proceedings for offences (1) Proceedings for an offence against this Act may be taken before the Local Court or before the Court in its summary jurisdiction. … (5) Proceedings for an offence against this Act or the regulations may be commenced not later than 2 years after the offence was alleged to be committed. … (7) A person shall not be convicted of an offence against this Act or the regulations where the matter constituting the offence is, at the date upon which the conviction would, but for this subsection, be made: (a) the subject of proceedings under section 123, which proceedings have not been concluded, or (b) the subject of an order made under section 124. (8) Nothing in subsection (7) precludes a conviction being made where the proceedings referred to in paragraph (a) of that subsection are concluded otherwise than by the making of an order under section 124."
As would be obvious from the facts that I have already recorded, there were neither pending proceedings under s 123, nor had any order been made under s 124 when, on 12 December 2012, the Second Respondent was convicted and fined at the Sutherland Local Court for an offence against s 125(1) of the EPA Act. As I have earlier stated, the present proceedings, seeking demolition of the roof extension, were not commenced until 15 August 2013.
The Second Respondent submits that, properly construed, the provisions of s 127(7) make their legislative intent clear. A person should not be liable to conviction for an offence against the EPA Act, with the prospect that a penalty in the form of a fine will be imposed following that conviction, and later be faced with the prospect of having remedial orders made under s 124, potentially having the consequence subjecting that person to an additional "penalty" of bearing the cost of undertaking remedial works. As a "double penalty" cannot be imposed if proceedings for an order under s 124 are pending at the time of determining a prosecution for an offence against the Act, or if, at that time, an order has already been made under s 124, the legislature cannot have intended that a different result would ensue where proceedings for an order under s 124 had not been commenced at the time at which a prosecution for an offence against the Act, founded upon the same subject matter, is determined by conviction.
This analysis is said by the Second Respondent to require that s 127(7) be interpreted "on a silent premise" that an election must be made either to prosecute for a breach of the Act or to seek a remedial order under s 124. If the Council elects to prosecute and obtains a conviction, it is thereafter precluded from seeking a remedial order under s 124 (submissions at par 40). By so interpreting the provision, the offender avoids the prospect of "double punishment" for the same act.
The potential for imposition of "double punishment" is said to arise in the following way. First, the Second Respondent has already been "punished" by the imposition of a fine for contravention of the EPA Act, being the same contravening conduct that founds the present civil proceedings. Secondly, if the Second Respondent is ordered to rectify the "illegality", he will be "punished" because rectification will require him to: "(i) forfeit the monies expended on the structure as built; (ii) pay the expense of demolition and rectification; (iii) pay potential further rectification costs if the demolition process has an adverse impact on the safety or integrity of the approved part of the works; and (iv) pay the [Council's] costs of the section 123 proceedings if so ordered by the Court." (Second Respondent's written submissions at par 8).
It is "logically untenable" to suggest that the losses and the incurring of costs directed to rectification does not impose punishment on the Second Respondent by the making of the demolition order sought by the Council. The financial liability of the Second Respondent in carrying out rectification works will undoubtedly exceed the fine and the costs that he was ordered to pay when convicted of the offence against s 125(1) of the EPA Act.
Even if, contrary to the submission just made, a stay is not justified on the basis of the "double punishment principle", the Second Respondent submits that it is unfair, in the events that have occurred, that the Second Respondent should face the prospect of a demolition order. This is so because a relevant consideration on penalty in the proceedings before the Local Court was the cost of complying with an order made under s 124.
Section 6(b) of the Fines Act 1996 (NSW) requires that when fixing the amount of any fine, a sentencing court is to consider matters that, in the opinion of that court, "are relevant to the fixing of that amount". If rectification by way of demolition is not sought until after the sentencing court has imposed a penalty, neither the defendant nor that court would be aware either that the remedial orders were to be sought or of the cost of complying with those orders, assuming that this Court exercised its discretion to make such orders. In this sense, a defendant in the position of the Second Respondent suffers an injustice.
The content of the Second Respondent's submissions seem to me to require three matters to be addressed in order to determine whether the order for demolition of the 3m roof slab extension, as sought by the Council, should be stayed as an abuse of process. The three matters that the submissions identify are first, the proper interpretation of s 127(7); second, whether "double punishment" is occasioned to the Second Respondent and third, whether unfairness is visited upon the Second Respondent for the reasons stated by him, sufficient to found a stay order. It is appropriate to address each of these matters in turn.

The proper construction of s 127(7) of the EPA Act

Section 127, in its various subsections, addresses a number of disparate topics relating to proceedings for an offence against the EPA Act or the regulations made under the Act. Accepting that their subject matter arises from the prosecution of an offence against the Act, subsections (7) and (8) do not, in terms, relate directly to any earlier subsections of the section. It is convenient to repeat the relevant subsections: "(7) A person shall not be convicted of an offence against this Act or the regulations where the matter constituting the offence is, at the date upon which the conviction would, but for this subsection, be made: (a) the subject of proceedings under s 123, which proceedings have not been concluded, or (b) the subject of an order made under section 124. (8) Nothing in subsection (7) precludes a conviction being made where the proceedings referred to in paragraph (a) of that subsection are concluded otherwise than by the making of an order under section 124."
In plain terms, the subsection precludes a conviction for an offence against the Act if, at the date upon which that conviction would otherwise be made, there are either: 1. undetermined civil enforcement proceedings brought under s 123 and founded upon the same subject matter as that which founds the prosecution, or 2. finalised civil proceedings, founded upon the same subject matter as that which founds the prosecution, in which a remedial or restraining order has been made under s 124. Subsection (8) reinforces the sequence of proceedings necessary to engage subsection (7) and also denies its operation where earlier civil enforcement proceedings, although concluded, have not resulted in any order being made under s 124. The temporal link between pending or determined civil enforcement proceedings under s 123 and the date of conviction are fundamental to the operation of the subsections.
On its face, the interpretation for which the Second Respondent contends does not arise from the text of subsections (7) and (8). The manner in which he seeks to interpret the provisions necessitates consideration of principles of statutory construction. Those principles are usefully stated by the plurality in Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; 239 CLR 27 at [47] where their Honours said: "This Court has stated on many occasions that the task of statutory construction must begin with a consideration of the text itself. Historical considerations and extrinsic materials cannot be relied upon to displace the clear meaning of the text. The language which has actually been employed in the text of legislation is the surest guide to legislative intention". After citing that passage, the plurality observed in the later decision of Commissioner of Taxation v Consolidated Media Holdings Ltd [2012] HCA 55; 250 CLR 503 at [39] that the task of statutory construction must also conclude with consideration of the text.
Contrary to the submission of the Second Respondent, the text of subsections (7) and (8) of s 127 does not require the making of an election in the terms identified by the Second Respondent, nor does the failure to make election have the consequence for which he contends. The text does not so provide. The only sense in which an election is called for by a person seeking both to prosecute an offence against the EPA Act and to seek an order in civil proceedings under s 123 of that Act is to determine whether the latter proceedings should first be pursued, acknowledging that if successful or pending, the defendant cannot then be prosecuted to conviction, assuming both proceedings are founded upon the same subject matter.
Save for the position that pertains when civil enforcement proceedings precede the commencement of a prosecution arising from the same subject matter, s 127(7) does not proscribe the institution of civil proceedings for an order under s 124, once the prosecution proceedings have concluded either by conviction or dismissal. Where a prosecution has concluded by conviction, the Second Respondent's submission seeks to attribute a purpose to the subsection, not expressed in it, that subsequent civil proceedings cannot properly be entertained. What is asserted to sustain that argument is, in one sense, said to be an anomaly that the legislature would not have intended. That is because the subsection proscribes the power to convict where civil proceedings are first commenced but leaves open to a prosecutor, particularly a Council, to seek first to secure a conviction and then, without express statutory constraint, also to obtain a remedial order under s 124.
Such a result, so it is submitted, identifies the anomaly. The submission acknowledges that the text does not so provide but assumes that its operation and effect is to be construed so as to give rise to the result for which the Second Respondent contends.
In the absence of clear statutory language sanctioning such a course, to construe the subsection in that manner would be contrary to principle. As French CJ and Hayne J observed in Certain Lloyd's Underwriters v Cross [2012] HCA 56; 248 CLR 378 at [26]: "A second and not unrelated danger that must be avoided in identifying a statute's purpose is the making of some a priori assumption about its purpose. The purpose of legislation must be derived from what the legislation says, and not from any assumption about the desired or desirable reach or operation of the relevant provisions [footnote omitted] … as the plurality said in Australian Education Union v Department of Education and Children's Services [footnote omitted]: 'In construing a statute it is not for a court to construct its own idea of a desirable policy, impute it to the legislature, and then characterise it as a statutory purpose.'"
I accept the statutory injunction expressed in s 33 of the Interpretation Act 1987 (NSW) that a construction of the provisions being considered that would promote the purpose of those provisions is to be preferred to one that would not. However, determining the purpose of a particular statutory provision is a task to be undertaken with some caution. The observations to which I referred by French CJ and Hayne J in Certain Lloyd's Underwriters v Cross confirm that view. So also do the observations of Gleeson CJ in Carr v Western Australia [2007] HCA 47; 232 CLR 138 at [5]. After referring to the legislative equivalent of s 33 in both Commonwealth and Western Australian legislation, the Chief Justice said: "That general rule of interpretation, however, may be of little assistance where a statutory provision strikes a balance between competing interests, and the problem of interpretation is that there is uncertainty as to how far the provision goes in seeking to achieve there is underlying purpose or object of the Act. Legislation rarely pursues a single purpose at all costs. Where the problem is one of doubt about the extent to which the legislation pursues a purpose, stating the purpose is unlikely to solve the problem."
As I have said, subsections (7) and (8) operate alone in s 127. No insight into their purpose, independently of the text itself, is derived from the context of the section as a whole.
Moreover, the broader context of the subsections within the scheme of Pt 6 of the Act does not aid the construction of s 127(7) for which the Second Respondent contends. Division 3 of Pt 6 of the EPA Act is headed "Orders of the Court". It contains s 123, enabling "any person" to bring proceedings to remedy or restrain a breach of the Act, while s 124(1) provides the Court with a broad discretion to make "such order as it thinks fit to remedy or restrain the breach". An order meeting that description may require the demolition of a building where the breach of the Act comprises the erection of a building: s 124(2)(b).
Division 4 of Pt 6 is headed "Offences". It is the Division containing ss 125 and 127. The only provision within either Div 3 or Div 4, addressing proceedings brought in both Divisions, is s 127(7). Importantly, there is no section in either Division providing that a remedy under Div 3 cannot be sought if the proceedings for an offence under Division 4, founded upon the same subject matter as founds the Division 3 proceedings, have resulted in conviction of the offender.
Had the legislature intended that conviction of a person for an offence against the Act rendered that person immune from subsequent civil enforcement proceedings under Div 3, when founded upon the same subject matter, it could readily have so provided. It did not do so. Such a result cannot be inferred or implied, having regard to the terms in which s 127(7) is framed.
There are several further factors that militate against the construction of s 127(7) for which the Second Respondent contends. The first of those is recognition of the different purpose served in prosecuting an offence for which a person may be convicted from the purpose served by bringing of civil enforcement proceedings against that person to remedy or restrain a breach of the Act. The purpose of seeking a conviction against an offender who has committed an offence against the Act is to punish the offender in the manner provided by law for commission of that offence.
That punishment, in the form of a sentence, is intended to serve the sentencing purposes identified in s 3A of the Crimes (Sentencing Procedure) Act 1999 (NSW). It must be assumed that the sentence imposed would not only serve to ensure that the offender is adequately punished but also serve to deter both the offender and others from committing similar offences, to make the offender accountable for his or her actions, to denounce the offender's conduct and to recognise in the sentence the harm, if any, occasioned by committing the offence. In the case of an offence founded upon failure to observe the prohibited conduct identified in s 76A(1) of the EPA Act, the integrity of the system of planning and development control in the State is undermined and, on that account alone, is a source of harm consequent upon commission of the offence (Gittany Constructions Pty Ltd v Sutherland Shire Council [2006] NSWLEC 242; 145 LGERA 189 at [103]; Cessnock City Council v Bimbadgen Estate Pty Ltd (No 2) [2011] NSWLEC 140 at [62]).
Proceedings brought under s 123 of the EPA Act, seeking an order to remedy or restrain a breach, are directed to the rectification of adverse environmental impacts consequent upon a "breach of [the] Act", as that expression is defined in s 122. As Kirby P observed in Warringah Shire Council v Sedevcic (1987) 10 NSWLR 335, the making of an order under s 124 involved "the enforcement of a public duty imposed by or under" the EPA Act by which "Parliament has expressed itself on the public interest which exists in the orderly development and use of the environment" (at 339). His Honour continued at 340 by stating that the power to bring proceedings under s 123 is indicative of a legislative purpose to uphold "in the normal case, the integrated and coordinated nature of planning law". If that purpose is not fulfilled by the making of an appropriate order "damage may be done to the environment which it is the purpose of the orderly enforcement of environmental law to avoid".
Apart from the differences in the nature and purpose of proceedings for prosecution of an offence and civil enforcement for breach, there is good reason why the legislature would not have provided that once a conviction had been entered, a civil remedial order could not be sought and made.
It would not be consistent with the object expressed in s 5 of the EPA Act, to encourage both the "promotion and co-ordination of the orderly and economic use and development of land" and "the protection of the environment", if a fine could be imposed upon a person committing an offence against the Act but no remedy was available to address the consequence of the conduct giving rise to the offence, once the offender had been convicted. A breach of the Act may take many forms. In the case of a structure erected or land use undertaken in contravention of the Act, it might reasonably be anticipated that prosecution for an offence will not only punish the offender but the conviction, of itself, will be sufficient to cause the offender to remove the offending structure or cease the offending land use. The continued existence of the unlawful structure or the continuance of the unlawful use may be the cause of environmental harm. If the expectation that conviction for an offence would be sufficient to address and remove the cause of the offending conduct was not fulfilled, on the Second Respondent's argument, the community would be without a remedy to address that harm, either at the instance of the local authority or in proceedings commenced by "any person" (cf s 123). Such a result is antithetical both to the Act and, more specifically, to the structure of the legislation as reflected in Divs 3 and 4 of Pt 6.
The limited terms in which a conviction for an offence against the EPA Act is proscribed by s 127(7) are readily explainable other than by an interpretation that relies upon "the silent premise" invoked by the Second Respondent. The subsection reflects the general principle that it is undesirable to require a person to defend civil proceedings before criminal proceedings, founded upon the same subject matter, are concluded. This principle is founded upon the right to silence ordinarily enjoyed by a defendant in criminal proceedings. While a superior court has the power to allow questions to be asked of a witness against whom there are current criminal proceedings and to require those questions to be answered, including answers that may result in the witness giving self-incriminating evidence, ordinarily, the civil proceedings will be stayed in the interests of justice.
The exercise of the power to order a stay is reflected in the judgment of Clarke JA (Mahoney and Priestly JJA agreeing) in Oades v Hamilton (1987) 11 NSWLR 139 where at 148 his Honour said: "Indeed it is now recognised that the power of the Court to stay civil proceedings in the event of concurrent criminal proceedings concerned with the same facts emanates from the inherent power of the Court to stay proceedings in the interests of justice." Observations to the same effect were made by Hope JA (Priestly and Clarke JJA agreeing) in Edelsten v Richmond (1987) 11 NSWLR 51 at 58.
Clearly, if civil enforcement proceedings are first commenced against a defendant who is simultaneously or subsequently charged with an offence against the Act, the provisions of s 127(7) protect the defendant against conviction in the prosecution, anticipating that involvement in the civil enforcement proceedings may necessitate admissions that may be self-incriminatory in that prosecution. No such problem of principle arises if the prosecution proceedings are concluded before civil enforcement proceedings have been commenced. The temporal limitation upon the operation of the subsection reflected in the text "…at the date upon which the conviction would, but for this subsection, be made" is significant. It articulates the critical circumstance in which the subsection operates.
The submission of the Second Respondent that s 127(7) is "predicated upon criminal penalties being visited only where section 124 orders are unavailable, either because the breach of the Act is irremediable or the defendant has sufficient grounds to have the court exercise its discretion not to make an order under section 124, despite the obvious breach of the Act" is said to be supported by the observations of Bignold J in Environment Protection Authority v Floyd [2004] NSWLEC 214. His Honour was there addressing the sentence to be imposed upon the defendant following a plea of guilty to an offence against s 144(1) of the Protection of the Environment Operations Act 1997 (NSW). After referring to the provisions of subsections (7) and (8) of s 127 of the EPA Act, his Honour said at [49]: "49. This express provision effects a significant legislative departure from the general law where a single act may create both civil and criminal liability and where both liabilities may be enforced against the wrongdoer, by evincing a legislative policy that gives preference and primacy to civil enforcement to achieve the restraint or remedy of a breach of the Act over criminal sanctions for that breach. Obviously where a breach of the Act has been committed and is not susceptible to civil remedy, criminal sanction may be the only option for enforcement."
There are several observations to be made about his Honour's remarks. First, they were not central to his reasons for imposing the penalty ultimately imposed in those proceedings. Indeed, his Honour acknowledged that as the offence for which the sentence was being imposed was not one arising under the EPA Act, the provisions of s 127(7) had no direct application (at [52]-[54]).
Secondly, I do not interpret his Honour's observations as supporting the interpretation for which the Second Respondent contends. To the extent to which the temporal nexus required by the subsection applies to the circumstances being considered, pending civil enforcement proceedings or an extant order under s 124 may loosely be described as having "primacy" over a criminal sanction for the same conduct. The second sentence in the quoted passage from his Honour's judgment is obviously a reference to s 127(8). However, the observations do not rationally support a proposition that following conviction for an offence against the EPA Act, the offender cannot thereafter be the subject of an order under s 124, made in proceedings commenced after the conviction is recorded.
If contrary to my reading of them, the remarks of Bignold J are taken to support the interpretation for which the Second Respondent contends, then I respectfully disagree with them. My reasons for so doing are those already articulated in addressing the Second Respondent's submissions. Properly construed, s 127(7) does not have the meaning for which the Second Respondent contends.

Double punishment

The circumstances in which a court will act to avoid the imposition of "double punishment" ordinarily arise in the context of criminal proceedings. Those were the circumstances that pertained in Blue Mountains City Council v Koprivnjak [2003] NSWLEC 158; 127 LGERA 188, the decision upon which the Second Respondent relied in support of its submission in this regard. It was a case in which Cowdroy J permanently stayed proceedings for an offence against the EPA Act.
In Koprivnjak the defendant was prosecuted for an offence against the EPA Act in which it was alleged that he carried out development without development consent where such consent was required. Prior to the institution of those proceedings, the defendant had been prosecuted in the Local Court for an offence against the Protection of the Environment Operations Act in that he allowed his land to be used as a waste facility without lawful authority so to do. That prosecution was unsuccessful. The facts founding that unsuccessful prosecution were the same facts founding the prosecution for contravention of the EPA Act.
Cowdroy J stayed the second proceedings by applying principles enunciated by Devlin LJ in Connelly v The Director of Public Prosecutions [1964] AC 1254 at 1359 to the effect that, as a general rule, the prosecution must join, in the same indictment, charges that are founded on the same facts or form part of a series of offences of the same or similar character. Since the facts relied upon in Koprivnjak were common to each charge, there was no reason why they could not have been heard together. As the Court was able to infer that the second proceedings were "instituted solely because of the failure of the [first] proceedings" a stay of the second proceedings was granted (at [31]). The permanent stay was granted on the basis that the second prosecution was oppressive and therefore an abuse of process.
The concept of "double punishment" was considered by the High Court in Pearce v The Queen [1998] HCA 57; 194 CLR 610. In the joint judgment of McHugh, Hayne and Callinan JJ, their Honours said at [40]: "To the extent to which two offences of which an offender stands convicted contain common elements, it would be wrong to punish that offender twice for the commission of the elements that are common. No doubt that general principle must yield to any contrary legislative intention, but the punishment to be exacted should reflect what an offender has done; it should not be affected by the way in which the boundaries of particular offences are drawn. Often those boundaries will be drawn in a way that means that offences overlap. To punish an offender twice if conduct falls in that area of overlap would be to punish offenders according to the accidents of legislative history, rather than according to their just deserts."
As would be apparent, those observations were made in the context of an indictment of the appellant charging him with two offences arising from a single episode. It did not involve a consideration of the "double punishment" concept arising from a criminal prosecution and civil proceedings, each founded upon the same circumstances.
The only authority to which I was referred by the Second Respondent in support of the proposition that the "double punishment" principle was to be applied in civil proceedings that followed a conviction in a criminal prosecution, were observations of Bignold J in Environment Protection Authority v Floyd. His Honour there referred to the decision of the High Court in Gray v Motor Accident Commission [1998] HCA 70; 196 CLR 1, a case involving an action in tort. The High Court stated that it would not award exemplary damages where the tortfeasor had been sentenced to a substantial term of imprisonment for the actions which gave rise to the appellant's claim in tort. The plurality gave two reasons for this determination at [42]-[43]: "42 First, the purposes for the awarding of exemplary damages have been wholly met if substantial punishment is exacted by the criminal law. The offender is punished; others are deterred. There is, then, no occasion for their award. 43 Secondly, considerations of double punishment would otherwise arise. In R v Hoar [citation omitted], Gibbs CJ, Mason, Aickin and Brennan JJ said that there is 'a practice, if not a rule of law, that a person should not be twice punished for what is substantially the same act'. That practice or rule would be breached by an award of exemplary damages in the circumstances described."
In Floyd, Bignold J had applied those observations to deny an aspect of penalty that might have otherwise applied to the sentence being imposed. His Honour did so because in previous proceedings, including civil proceedings, both civil and criminal sanctions had been imposed upon the defendant arising from the same circumstances that gave rise to the offences to which the defendant had pleaded guilty. The earlier "criminal sanctions" to which his Honour referred were findings of contempt for which the defendant was imprisoned for failure to comply with orders made in the civil proceedings.
The present case is not one to which the principle articulated in Gray v Motor Accident Commission should be applied. The making of a remedial order under s 124 can, in no way, be equated to the imposition of exemplary damages in an action for tort. As the plurality observed in Gray [31] exemplary damages are not compensatory but rather are concerned to punish the offender and deter others from like conduct.
No element of punishment is involved in the making of a remedial order under s 124. Such an order, if made, is framed to remedy an adverse environmental impact consequent upon the offender's action. The Second Respondents contention that the making of such an order exposes him to "double punishment" cannot be sustained.

Unfairness

I accept that at the time at which the Second Respondent was sentenced for the offence against s 125(1) of the EPA Act, the cost to be incurred in rectifying the work that was undertaken in contravention of the Act was relevant to be considered by the sentencing magistrate. However, I do not accept that the subsequent commencement of the present proceedings, seeking an order for partial demolition of the unlawfully constructed roof slab, denied the opportunity for the Second Respondent to provide an estimate of the cost of rectification works at the time of his conviction.
As I have already recorded, the Second Respondent pleaded guilty to the offence with which he was charged. The particulars of that offence given in the Court Attendance Notice identify six separate aspects of work in constructing the new dwelling on the Land that contravened the provisions of s 76A(1)(b) of the EPA Act. Only one of those aspects of work involved the 3m roof slab extension. The defendant's plea of guilty carried with it an acknowledgment that, among other works, that roof slab extension had been carried out unlawfully.
Having acknowledged the unlawfulness of his action in building the roof slab as he had, it was open to the Second Respondent either to have addressed the unlawful extension by removing it or, at the very least, to obtain a quotation for the cost of removal. Either the cost incurred in removal or the quotation obtained could have been provided to the magistrate at the sentence hearing. Neither the removal of the slab nor obtaining a quotation of the cost of removal prior to the sentence hearing is a fanciful observation.
The Second Respondent had twice applied to the Council to modify the Development Consent for the dwelling being constructed by him and twice that application had been refused. Significantly, a Commissioner of this Court had refused to sanction the roof slab extension, reflected in the decision given and the orders made of 13 June 2012. The sentence hearing did not take place until September 2012 and the Second Respondent was not sentenced for the offence against the EPA Act until 12 December 2012. The period following this Court's determination afforded ample opportunity either to remove the slab extension, knowing that its continued existence had been refused, or to obtain, during that period, a quotation from suitably qualified persons for its removal. Indeed, Exhibit 3, tendered by the Second Respondent before me, provides a quote dated 26 November 2012 for the cost of removing the roof slab extension. Why that quote was not sought to be tendered to the magistrate who sentenced and fined the Second Respondent is not explained. While the sentence hearing had concluded in September, the decision on sentence had not been delivered at the time at which this quote was obtained. It was therefore open to the Second Respondent to have the matter relisted before the magistrate in order to tender what is now said to be such an important item of evidence that ought to have been available to the magistrate before sentence was passed by imposition of a fine.
That the Second Respondent chose not to take action for removal of the slab extension before conviction and sentence is entirely a matter of his own doing. Had he responded to the unlawfulness of his work, which he was well able to do, he would have incurred those costs items associated with rectification earlier identified at [47] and which he now describes as "penalties".
I am unable to discern any unfairness to the Second Respondent that would justify the Council's proceedings for an order under s 124 being stayed.

Conclusion on abuse of process

For the reasons that I have stated, these proceedings do not involve an abuse of process. They are consistent with the scheme of and provisions in Divs 3 and 4 of Pt 6 of the EPA Act. They are not proceedings that are vexatious, oppressive or unfairly burdensome upon the Second Respondent nor do they bring the administration of justice into disrepute (Batistatos v Roads and Traffic Authority of New South Wales [2006] HCA 27; 226 CLR 256 at [9], [14] and [15]).
An order for partial demolition of the existing roof will, if made, expose the Second Respondent to costs. That cost does not equate to a "double punishment". It involves a cost incurred in addressing the harm occasioned by work that resulted from a breach of the Act. The timing of the present proceedings did not operate to prevent the cost or potential cost of rectification works being made known to the sentencing magistrate when convicting the Second Respondent of an offence against the Act in December 2012.
The Second Respondent's notice of motion seeking a permanent stay of proceedings for a demolition order, on the ground that such an application involved an abuse of process, will be dismissed.

Discretion to require demolition of the roof slab extension

As would be apparent from the background that I have given, the Second Respondent does not deny that the 3m roof slab extension over the first floor northern balcony was constructed in breach of the Development Consent. Nonetheless, he submits that the Court would not, in its exercise of discretion, require removal of that roof extension. The matters identified by him as weighing against an order for demolition are the following: 1. that a conviction has been recorded against him and a fine imposed; 2. the cost of removal is substantial; 3. there is no good town planning reason to require demolition as the roof extension does not impact unreasonably upon neighbouring properties; 4. as constructed, the roof is safe and compliant with Australian Standards; 5. demolition of the 3m section sought by the Council may give rise to structural problems elsewhere, requiring demolition of additional elements of the building and thereby increasing the cost of complying with any order.
In the present context, I do not need to add to what I have already said as to the Second Respondent's conviction and fine for carrying out building work in breach of the EPA Act. The works that were the subject of charge were not confined to the 3m roof extension. As a consequence, I am entitled to assume that the penalty imposed was not confined to that item; rather, it is assumed to reflect a penalty for the totality of the offending work.
Evidence of the likely cost of removing the 3m extension to the roof slab is somewhat scant. The "tender" submitted to the Second Respondent by letter dated 26 November 2012 (Exhibit 3) is brief, indicating a demolition cost of $48,600 plus GST. The author of the tender was not called nor did the Second Respondent explain why the tender had not been accepted. Although the Council was critical of the absence of other evidence, it acknowledged that the cost of demolition, which would include removal of the five supporting columns, would be "substantial".
In the absence of other evidence, I accept that the cost of demolition was in the order of that indicated in Exhibit 3. I also record a concession made by counsel for the Second Respondent that his client would not contend that he was unable to pay for the cost of demolition, should a demolition order be made.
I do not accept the submission of the Second Respondent that there is an absence of town planning justification for removal of the slab extension and its supporting columns. Moreover, no evidence was called by the Second Respondent to support a submission that the roof extension had no significant impact.
For its part, the Council relied upon expert town planning evidence as well as the decision of this Court, refusing the modification application, so far as that application sought to maintain the roof slab extension as constructed, and also the decision of the Court refusing the building certificate application by the Second Respondent. It will be remembered that the latter application also proposed retention of the roof extension.
The Council read an affidavit by Kerry Nash, a consultant town planner, in support of its case. Mr Nash was not required for cross-examination on his evidence. He had been called as an expert by the Council in each of the two earlier proceedings decided by this Court. He maintained the opinions expressed in his earlier reports and reflected in those decisions. In essence, he was of the opinion that the extended roof added considerable bulk to an otherwise large building and that the additional bulk was apparent when viewed from neighbouring properties.
In addition, Mr Nash opined that the extension of the roof to cover the northern balcony increased the opportunity for its use as an entertaining area, with consequential amenity impacts on neighbouring properties. Those impacts were likely to be more acute given that the separation distances from the covered balcony to neighbouring buildings were not significant. These amenity impacts included both acoustic and privacy impacts. Mr Nash rejected the use of planter boxes proposed by the Second Respondent to be located at each end of the balcony as measures that would be effective to ameliorate any of the impacts that he envisaged resulting from the roof extension over the balcony.
The opinion expressed by Mr Nash as to the likely additional use of the covered balcony finds some support from the Second Respondent himself. In his second application to the Council to modify the Development Consent, he sought to justify the roof extension by stating: "We were planning to dine every now and then in our balcony. If there was no roof over it then all the dust, sand, rain would have come inside. Not to mention the headache of cleaning the leaves that will fly in from the trees around the balcony. Also, technically, it was more feasible to do this in one go while adding the concrete to the approved shed."
The evidence of Mr Nash was accepted and reflected in the respective decisions of the Commissioners who had determined the modification application appeal and building certificate appeal respectively. In reaching their respective decisions, Mr Nash and the two Commissioners referred to the provisions of the LEP, including cl 49, the relevant provisions of which I have earlier identified at [36].
When determining the appeal to this Court, following the Council's refusal of the second modification application, the Commissioner recounted her observations made at the time of inspecting the Land where she said at [16]: "16. Having stood on the rear deck and looked out I was able to see clearly over and into the windows of the adjoining properties. The town house number 4 on the eastern boundary is in close proximity to the spa and elevated deck. In fact it looks out at the rear deck from its living room and bedroom. This elevated rear deck and concrete slab roof is also clearly visible from the backyard of the site and the rear properties through some vegetation. Based on the evidence, this heavy 200 mm concrete slab roof dominates the neighbours' properties to the east and west. When viewed from the rear of the subject site the built form roof looms largely and is out of scale with the adjoining built form. I accept the evidence of the objectors and Mr Nash that the proposed extension of the concrete slab roof over the deck adds unacceptable bulk to this already large dwelling." At [17]-[19] the Commissioner made further reference to the bulk created by the extended roof slab, the real potential for additional use of the all-weather first floor balcony by reason of its roof cover and the manner in which those factors were inconsistent with the relevant provisions of the LEP.
It is apparent from the judgment of the Commissioner who determined the building certificate appeal that he also visited the site for the purpose of assessment. In Sud v Sutherland Shire Council [2013] NSWLEC 1177 at [45] the Commissioner described what he saw as a "significantly large and bulky building" on the Land. He continued: "Furthermore, the approved rear balcony with an area of approximately 54 sq m is also relatively large in the context of the dwellings in the neighbourhood. Even with the installation of the 2 m wide planters, the overall width of the enclosed balcony and supporting piers is dominating in my opinion and does not protect or enhance the visual amenity of neighbouring properties."
The Commissioner then described the configuration of rooms adjacent to the first floor northern boundary as a consequence of which he did not consider that the balcony "is a conventional low-use balcony off the bedrooms". The plans then being considered showed an "entertainment room" adjacent to the balcony, with a "hot bar" area close by, in addition to a bedroom adjacent to one end of the balcony.
Having also identified at [49] the provision made "for extensive lighting of the extended balcony ceiling and various cabling and services installed", together with the favourable views enjoyed from that balcony of the city skyline, the Commissioner accepted the opinion of Mr Nash that the extended roof over the balcony "will make it more attractive and increase its usage" with the consequence that "the privacy and aural amenity of the adjoining properties would be adversely impacted". Finally, at [52] he accepted that the retention of the extended roof over the northern first floor balcony was, when viewed from the rear, out of scale with adjoining built form.
The Second Respondent contended that the decision of each Commissioner, determining that the unauthorised works would infringe upon the privacy of neighbours "was misconceived and was in fact a false issue". This contention was made, so it was said, because "the neighbours' privacy was irrevocably infringed" when the Development Consent approved the northern first floor balcony.
I do not accept this as being an accurate reflection of the decision by each Commissioner. The substance of their respective determinations in this regard was that by extending the roof slab over the full width of the balcony, it had become usable in all weather conditions. When regard was had to the factors earlier identified, it was apparent that the area had far greater potential for use than would have been the case had the balcony remained substantially open, as the approved plans contemplated. The essence of the respective decisions was that increased use would likely result in increased incursions upon neighbour amenity.
On the question of environmental impact, the evidence weighs heavily against retention of the existing roof extension over the first floor balcony. I have no reason not to accept the evidence of Mr Nash in this regard. I do accept that the respective decisions of the Commissioners are not legally binding upon me but there would need to be strong and sound evidence to dissuade me from accepting their respective reasons for refusing to sanction retention of the extended roof slab. Their reasons for judgment are reflected in decisions of this Court. As such, they must be afforded respect when expressing conclusions upon the same subject matter as that which I am required to consider.
The submission that the roof slab is safe does not find support in the evidence, nor in the decision of the Commissioner who decided the building certificate application. The Second Respondent tendered in evidence the joint expert engineering report prepared for the purpose of the building certificate appeal to this Court. The joint authors of that report were David Pepper, retained by the Council, and Moussa Zaioor, retained by the Second Respondent. In that report (Exhibit 1) those experts agreed that the certification submitted for the roof structure, in support of the building certificate application, did not provide "adequate information on which to base final certification". The reasons why the information was inadequate was stated. Their evidence was accepted by the Commissioner who stated that he also was not satisfied that structural engineering issues had been adequately addressed. At [53] he expressed agreement in the conclusions of the engineers "because the simple certification statement by Mr Alagha (Exhibit E) seriously lacks detail in my assessment". He concluded by saying that it was not "appropriate to issue building certificate for only part of the roof slab, which has not been properly certified".
An earlier report prepared by Mr D McMillan, a consulting engineer retained by the Second Respondent, was also tendered by him in the present proceedings (Exhibit 2). Mr McMillan had examined the design engineer's specification and drawings, as a consequence of which he concluded "the roof slab has more than adequate strength". However, the purpose of Mr McMillan's report was not the certification of the slab as constructed. As a consequence, he does not contradict the evidence of the joint experts in Exhibit 1, stating that there is inadequate information on which to base final certification. Although Exhibit 1 was prepared in September 2013, the Second Respondent has not sought to address the identified inadequacy for the purpose of these proceedings. It is for this reason that I cannot accept the submission made, in terms, that the "roof as constructed is safe and compliant with Australian Standards".
The thrust of Mr McMillan's report is directed to the consequence for the existing roof slab if the 3m unauthorised extension is removed, as the Council contends should be done. Mr McMillan concludes that demolition of the 3m extension "should be possible without substantial ill effects on the remaining roof slab if demolition works are conducted in an appropriate manner that minimises the risks of damage". A specification for the manner in which that work should be carried out is annexed to his report. He acknowledges that in carrying out demolition work there is always a risk that cannot be quantified "in dollar terms". Mr McMillan expresses the opinion that the existing roof slab "has more than adequate strength even after removal of the rear most 3m". There remains the likelihood of substantial long term cracking in the roof slab, a prospect that will be increased by the proposed demolition works. It is not suggested that the foreshadowed cracking will impair the structural integrity of the remaining slab.
None of the matters I have discussed, either individually or collectively, persuade me that, in the exercise of discretion, an appropriate order should not be made for demolition of the 3m roof slab extension. The evidence establishes that the detrimental environmental impact occasioned by the roof extension should be addressed by requiring its demolition. Further, the evidence satisfies me that, with proper supervision of works, demolition can be undertaken without impacting adversely upon the integrity of the remaining roof slab.

The Development Consent

The Second Respondent submits that the Development Consent authorises the use of the roof as a recreational space for the occupants of the dwelling or, as least does not proscribe such use. Whether this is so, depends upon the proper construction of the Development Consent. The task of so doing necessarily involves consideration of the consent itself with its accompanying conditions, together with any document necessarily incorporated by reference (Allandale Blue Metal Pty Ltd v Roads and Maritime Services [2013] NSWCA 103; 195 LGERA 182 at [43]).
The Development Consent describes the development to which it relates as "Demolition of Existing Dwelling & Construction of a Dwelling, Pool & Detached Garage". Reference is then made to the conditions of consent.
Condition 1 requires that the development "be implemented substantially in accordance with the details and specifications set out" on a number of nominated plans or drawings. Those plans or drawings are nominated by number, date and the identity of the plans draftsman. It is convenient to refer to those plans as the "approved plans".
Sheet 1 of the approved plans is a site plan. It shows, in plan, as distinct from elevation, an outline of the dwelling, the detached garage and other associated structures such as a proposed swimming pool. In the centre of the building outline are the following words: "PROPOSED DOUBLE STOREY DWELLING FLAT CONCRETE ROOF." Beneath that description the relative level of the ground floor is given as is the relative level of the "ridge".
The approved plans show a rectangular structure approximately 2 m by 4 m located on the western side of the roof. The structure is shown with a ridge height that equates to the "ridge level" nominated on sheet 1 of the approved plans. It has a height above the roof of 1600mm and is shown on the approved plans as protruding above the parapet surrounding the roof by 500 mm.
Sheet 3 of the approved plans is a first floor plan. While it shows stairs leading to the small structure on the roof, no doorway is shown above the stairs giving access to the roof. Nonetheless, the Council accepts that, consistent with the approved plans, some form of access hatch from the stairs leading to the roof could be installed. Given the dimension of this roof structure, particularly the height in which an access hatch could be provided, service access only could be expected.
It will be recalled that some of the modifications to the Development Consent sought by the Second Respondent were allowed by this Court in June 2012. For the purpose of that hearing before the Court, a revised set of architectural drawings were prepared and tendered. Those were the plans that were the subject of the modification approved by the Court, although, as earlier recorded, that modification expressly excluded the 3m roof extension.
The modification plans were prepared by a different designer from the one who had prepared the original plans. The plans considered by the Court in the modification appeal described the "the project" to which they related as being a "two storey dwelling". Endorsed on the site plan over the outline of the building were, once again, the words "proposed double storey dwelling-flat concrete roof". The small structure located on the roof that I earlier described was shown on the amended plans with the same location and dimension as previously indicated. Again, an access stair to that structure is shown on the first floor plan but no door opening to the roof is shown.
Where outdoor spaces provided as part of the dwelling construction are intended, they have been marked on the plans as either "terrace" at ground floor level or as "balcony" at first floor level. That designation appears not only on the modification plans but on the original approved plans. On neither set of drawings is there any indication that the "flat concrete roof" was also intended for us as a roof terrace.
When focus is given to the development that is the subject of Development Consent, understood in the context of condition 1 and the plans identified in that condition, I do not accept that the Consent authorised the use of the roof as a recreational terrace. I so conclude for the following reasons: 1. there is no indication on either the approved plans or the modification plans that the roof was intended to be so used; 2. the statement on sheet 1 of each set of plans describes the building as a double storey dwelling with a flat roof, the latter being a description that would not implicitly carry with it the identification of that area for use as an outdoor space; 3. where outdoor space is intended to be provided, as part of the building work, the intended use of that space is described on the plans in familiar terms such as "courtyard", "terrace", or "balcony", but no such description is assigned to the roof; and 4. the means of access to the roof, particularly the opening at the top of the stairs for the first floor through a structure only 1.6m in height is inconsistent with an intention to use the space as a terrace but it is consistent with the intention to provide a maintenance or service access to the roof just as, for example, the manhole in a ceiling provides access to services and maintenance of areas above that ceiling, often within a roof space.
The factual circumstances presently being considered are very similar to those considered by the Court of Appeal in Nader v Sutherland Shire Council [2008] NSWCA 265. While it is not suggested that the decision of fact by that Court determines the decision to which I must come on the factual issue in the present case, the process of reasoning of that Court confirms that which I have adopted.
In Nader the Court was concerned to consider a dwelling that had been constructed in a manner that did not conform to the conditions of development consent granted for its construction. While breach of the consent was not in contest, the argument concerned an order for demolition of work that had been carried out in breach of the consent. At first instance, this Court had ordered the demolition of the "unauthorised works" (Sutherland Shire Council v Nader (No 3) [2007] NSWLEC 469).
In the Court of Appeal, Mr Nader challenged the exercise of discretion to order demolition. One of the issues that arose in that regard is whether the development consent granted for the erection of the dwelling included use of the roof as a rooftop terrace. The development, as proposed, was described as a two storey dwelling and in-ground swimming pool. One of the conditions of consent was in substantially the same terms as Condition 1 of the Development Consent in the present proceedings, requiring implementation of the development substantially in accordance with nominated plans. Those plans had not identified the roof as intended for outdoor use by the dwelling occupants.
The leading judgment in the Court of Appeal was delivered by Young CJ in Eq (Beazley JA and Sackville AJA agreeing). Having identified the fact that the consent was granted for the erection of a two storey dwelling, his Honour observed at [37]: "Had the consent been intended to encompass the construction of a building with useable living and recreation space on the third level (both inside and outside), it would not have been expressed as authorising a two-storey dwelling". His Honour continued at [46]: "… when one looks at the consent and the plans as a matter of common sense, and with an objective assessment construed liberally, it seems to me the only way one can construe the development consent is that it was for a two-storey building with nothing to be on the roof that was part of the dwelling area".
His Honour's observations are, with respect, apposite to be applied to the present circumstances. The four matters that I have identified in [124] as supporting my conclusion seem to me to involve a "common sense" and objective assessment of the plans and the consent itself to support the conclusion I have reached. Neither the terms of the consent itself nor the plans that it incorporates support that the contention that the "flat concrete roof" was "part of the dwelling area".

Configuration of the roof area: apprehension that it will be used as recreational space

I have earlier outlined the observations made by Mr Pracy on 10 October 2013 when he inspected the roof area of the dwelling. Electrical cabling protruding through conduit pipe was observed to be located uniformly around the top surface of the parapet constructed around the roof slab. Mr Pracy expressed the opinion that the location and spacing of this cabling would have accommodated lighting fixtures. In addition, electrical cabling, appropriate for power point installation, was located on the wall of the structure that bounded the access stairs. Copper piping, suitable for either gas or water supply had also been installed on this wall. The roof area within the parapet wall had also been tiled. None of these items were present when Mr Pracy inspected the rooftop area on 22 May 2012.
The Second Respondent sought to explain the various items installed on the roof. That explanation is contained in an affidavit sworn on 1 April 2014. He states that lighting will be installed "for the security of the sides and the backyard of the building" with sufficient further lighting installed "to enable the safe access to the area", being the roof area.
The Second Respondent also acknowledges having installed three air conditioning units on the roof. He accepts that these units required the grant of development consent which he failed to obtain. Their relocation on the roof to a minimum of 1.5m from the internal face of the roof parapet is to reduce the impact of those units when viewed from outside the dwelling.
Despite the items and infrastructure installed on the roof, the Second Respondent states that there is no intention of using the roof area "other than access for the operation, maintenance, cleaning and repairs of the items that have been or will be installed on the roof".
In cross-examination, the Second Respondent agreed that the power cables installed in the roof parapet were not to be the source of power for the air conditioning units. Further, he stated that the copper pipe, intended to carry water, was not installed for the purpose of connection to the air conditioning units. Those pipes were installed to aid the cleaning of the roof, as was the installation of a power circuit and power point.
The Second Respondent also explained that he had decided to tile the roof area within the parapet area following rain at some time during 2013. As a result of that rainfall, he discovered that the roof was not draining to the drains installed for that purpose. He did not know the surname of the concreter engaged to finish the surface of the roof slab and so he could not pursue that contractor to correct the surface gradient toward the drains. He did, however, have the roof surveyed and, as a result of the advice given to him by the surveyor, he believed that the surface levels of the roof could be corrected by tiling it.
Approximately 185 sq m of the roof area was tiled under the instruction of the Second Respondent. That area did not include the 3m roof extension over the northern balcony as the extension was outside the roof parapet. The tiles purchased for this purpose were a "natural marble". He had no recollection of the cost incurred in purchasing those tiles. The cost of having the tiles laid was to be at the rate paid for other tiling work carried out in the dwelling, namely $12 per sq m. However, as the tiling work had not been completed, the tiler had not been paid and so he could not give a cost for laying the roof tiles.
By way of response, Mr Pracy stated that from his experience he had only ever seen a roof tiled when that roof was also used or intended to be used as an elevated terrace. An appropriate fall to drainage lines, as well as water sealing, could be achieved by using mortar and a sealing membrane. The installation of a membrane was both quicker and cheaper than tiling the area. While tiles may well provide some protection for the membrane, a membrane was likely to "stand the test of time" in a non-trafficked roof area.
Although the Second Respondent stated that it was "not the intention" to use the roof area, other than for service and maintenance, there are two difficulties arising from this statement. First, the Second Respondent is not the owner of the dwelling. While he accepted responsibility for undertaking work that was not sanctioned by the Development Consent and did so in his capacity as project manager, the critical statement disavowing any intention to use the roof as an elevated terrace is one to be made by the First Respondent as owner and intended occupier of the dwelling. No such statement was forthcoming.
The second difficulty is related to the first. The works and infrastructure undertaken and installed on the roof (air conditioning units aside) give rise to an inference that its use as a terrace is intended or is, at least, an option reserved to the First Respondent so to do. The installation of cabling for lighting is extensive and the installation of power outlets and water supply, together with the tiling of the entire area, give rise to that inference. The extent to which parapet power cabling has been installed for lighting suggests something more than is ordinarily required for security of an urban dwelling in a residential area. Indeed, the Second Respondent acknowledged in his affidavit sworn on 1 April 2014 that rooftop lighting is intended as well as "festive lighting".
The extensive tiling that has occurred, when the use of mortar and a membrane could more expeditiously and less expensively address the drainage concern expressed by the Second Respondent, also supports the inference that I have drawn. In the absence of evidence from the First Respondent, the inference of potential use of the roof as a terrace is more readily drawn. The fact that three air conditioning units have been placed in close proximity to each other in one corner of the roof does not detract from the inference, having regard to what appears to be extensive areas on the roof that are otherwise available, notwithstanding the height of the present access door to the roof.
As I have earlier determined, use of the roof as a terrace as part of the residential use of the dwelling is not sanctioned by the Development Consent. The inference that I have drawn as to the intended use of the roof gives rise to an apprehension that the Development Consent will be breached. As such, it is a "breach of the Act" that engages the power to make a restraining order against the Respondents: ss 122(a)(ii) and 124 of the EPA Act. I propose so to do.

Issue 6: Excavation of the absorption trench

This issue arises from the circumstance that a storm water absorption trench was excavated and a concrete block wall constructed within a radius of 3m of the trunk of two Angophora costata trees growing in the rear yard of the Land. Not only did condition 32 of the Development Consent require those trees be retained but the condition also required that the 3m radius from the trunk of each tree be fenced and that no works be undertaken within that fenced area.
Although it was initially stated by the Second Respondent's counsel that the excavation of the absorption trench in breach of condition 32 was in issue, ultimately it was conceded that the trench had been excavated within the 3m radius from the trunk of each tree. Having made that concession, the response of the Second Respondent as to any remedial action was somewhat equivocal. However, as I understand the Second Respondent's final position, he submits that no order should be made for removal of the absorption trench, in the exercise of the Courts discretion to refrain from so doing. No evidence was led by the Second Respondent directed to any matter informing the exercise of discretion in the manner that he seeks.
Although described in the evidence as an "absorption trench", the description given by Mr Pracy and the photographs taken by him of that "trench" indicate that it might more aptly be described as a detention tank. I have earlier stated its dimensions and manner of construction.
The impact upon the two Angophora costata trees is the subject of evidence from James Van Breda. He visited the Land on two occasions, including an occasion when he observed the absorption trench.
As a result of his last visit, Mr Van Breda stated that both trees have been "negatively affected" by their changed environment. The tree described as "Tree 1" was observed to be holding 15% deadwood and approximately 5-10% epicormic canopy growth. Tree 2 was observed to be holding 25-30% deadwood and had approximately 40% epicormic growth within its canopy. Thinning crowns, production of deadwood and epicormic growth replacing normal tip end growth patterns are typically signs that trees are under stress. These were the signs observed by Mr Van Breda. They occur when root zones are filled or trenching occurs that alters the ground water regime to which the trees had been accustomed.
By reason of the surface and subsurface disturbances that have occurred, Mr Van Breda opines that these trees may decline and even die over time. In order to improve the prospect of survival, he recommends that the absorption trench and fill material be removed and that the surface of the Land be reinstated within a radial distance of 3m from the trunk of each tree, such that the restored level is that which existed before the trench was excavated and fill placed at or near the base of each tree.
Given that condition 32 of the Development Consent was specific both as to the preservation of these trees and the measures that should be taken to ensure that occurred, I am of the opinion that the measures recommended by Mr Van Breda should be taken in an endeavour to save these trees. An appropriate order will be framed to achieve this end. Such an order is truly remedial by seeking to address, or at least arrest, the harm that has been occasioned by carrying out works in breach of the Development Consent.

Issue 7: Fill

The Second Respondent does not challenge the evidence of Mr Pracy and Mr Van Breda that fill was placed on the Land within 3m of the two Angophora costata trees. He accepts that the fill should be removed and offered an undertaking to do so provided that he was given a level to which that fill material should be removed.
At the conclusion of the hearing, I directed that the Second Respondent provide to the Council any site survey available to him, showing levels of the Land before development was commenced, being the site levels used for the purpose of preparing both the approved architectural drawings and construction certificate drawings. I also directed that the Council, having received such survey data, provide to the Second Respondent a draft of the orders that it would seek if successful in these proceedings. Having received the Council's draft orders, the Respondents were required to provide both to the Council and to my Associate, the terms of any undertaking that they were prepared to give to the Court in response to those draft orders.
The Council did provide draft orders in accordance with my directions. Relevantly, one such order nominated the level to which the surface should be restored within the 3m radius of each of the two Angophora costata trees. However, the Respondents have not provided the terms of any undertaking that they are prepared to offer in lieu of orders being made in this regard.
The environmental consequences of placing fill around and adjacent to the trees in question is that which I have already indicated when addressing the absorption trench issue. Mr Van Breda's unchallenged evidence is that the combined effect of excavation and construction of the absorption trench together with the depositing of additional fill adjacent to these trees has the consequence to which I have earlier referred. It is therefore appropriate to make a remedial order requiring the removal of fill adjacent to these trees.

Issue 8: Fill against boundary fences

I have earlier described at [30] the observations made by Mr Pracy of fill and builders waste on the Land, located up to and against the northern and eastern boundary fences. In part, these fences were being used to retain that fill.
The Council submitted that the use of the Land for the placement of fill adjacent to the boundary fences was not the use of the Land contemplated by the Development Consent. It is a use of land, if associated with development as a dwelling house, that would require the grant of development consent. No such consent has been obtained.
The Second Respondent did not challenge the Councils submission. He accepted that the fill of which complaint is made should be removed. It was not suggested by him that the fill had been so placed as part of the approved landscape works for the Land. Although acknowledging that the fill should be removed and foreshadowing, through his counsel, that an undertaking so to do would be offered, none has been forthcoming.
Accordingly, it will be necessary to include among the orders that I make, an order for removal of this fill.

Conclusion

The Council has established that the Second Respondent has carried out development on the Land in breach of s 76A(1) of the EPA Act. That development has involved the carrying out of building work that breaches conditions of the Development Consent (s 76A(1)(b)). Other work was carried out that required consent but for which no consent was obtained (s 76A(1)(a)).
While the carrying out of those works also resulted in the prosecution and conviction of the Second Respondent for an offence under s 125(1) of the EPA Act, it is consistent with the provisions of the Act that, in these proceedings, the Council may seek both restraining and remedial orders to address the consequences of those works. Properly construed, s 127(7) of the Act provides no bar to the Council maintaining the present proceedings. It is not an abuse of process so to do.
As the works undertaken by the Second Respondent involve neither a technical nor trivial breach of the EPA Act, it is appropriate that orders be made under s 124. The orders I propose to make are intended to address the harm consequent upon the breaches of the Act that have occurred or seek to restrain apprehended breaches of the Act.

Orders

For the reasons I have given, I make the following orders: 1. Declare that the Second Respondent has carried out the following development on the Land, otherwise than in accordance with the Development Consent, contrary to the provisions of s 76A(1) of the Environmental Planning and Assessment Act 1979: 1. the extension by 3m of the concrete flat roof over the northern first floor balcony of the dwelling; 2. the placement of fill within 3m of the trunk of each of Tree 1 and Tree 2; 3. the excavation and construction of an absorption trench within 3m of the trunk of each of Tree 1 and Tree 2. 1. Declare that the Development Consent does not authorise the use of the roof level of the dwelling as a recreational or terrace area in association with the use of the dwelling. 2. Order that by 30 November 2015 the Second Respondent demolish and remove from the dwelling, the northern 3m of the roof extending over the northern first floor balcony, together with the five supporting columns for that roof extension, being the roof extension and columns depicted by hatching on the plan annexed to these orders and marked "A". 3. The work required by Order (3) must be carried out in accordance with the following requirements: 1. the procedure for demolition must accord with that identified by Mr D McMillan, structural engineer, in the annexure dated 29 November 2012 to his report of that date and tendered as Exhibit 2 in the proceedings unless another procedure for demolition is prepared by a qualified structural engineer and that alternate procedure is agreed on by a structural engineer employed or retained by the Applicant; 2. in the event that an alternate demolition procedure is proposed by the Second Respondent, he must bear the cost of the structural engineer employed or retained by the Applicant to review that alternate procedure; 3. the work must be carried out in accordance with "Australian Standard 2601 - The Demolition of Structures" under the supervision of a structural engineer; 4. demolition work must only be carried out between the hours of 7am and 6pm Monday to Friday inclusive and between 8am and 1pm on Saturdays, with no work to be carried out on Sundays or Public Holidays; 5. within 21 days from the date of completion of demolition, the Second Respondent must notify the Applicant in writing that demolition work has been completed; 6. within 4 months from the date upon which demolition work is completed, the Second Respondent must provide to the Applicant, certification from a qualified structural engineer that the demolition of the extended roof slab has not affected the structural adequacy of the dwelling. 1. Order that by 31 October 2015 the Second Respondent remove so much of the absorption trench and fill placed on the Land that is within 3m of the trunk of each of Tree 1 and Tree 2 and reinstate the soil as a growing medium within that radius from the trunk of each tree to a level between RL 139.6 AHD and RL 140 AHD. 2. In giving effect to Order (5): 1. the work required by Order (5) must be carried out under the supervision of a qualified arborist; 2. within 14 days from the date upon which the work required by Order (5) has been completed, the Second Respondent must notify the Applicant in writing to that effect; 3. within 28 days from the date upon which that work has been completed, the Second Respondent must provide to the Applicant a report from the supervising aborist, describing the works undertaken and giving his or her assessment of the health of the two trees at that time. 1. Order that the Respondents and each of them be restrained from using or permitting the use of the roof of the dwelling as a roof terrace or recreational space associated with the use of that dwelling without first obtaining development consent for that use. 2. Order that any air conditioning unit installed or to be installed on the roof of the dwelling be located not less than 1.5m from the internal face of the roof parapet. 3. Order that by 30 September 2015 the Second Respondent remove fill placed against or within 900mm of the northern and eastern boundary fences of the Land so that the Land is restored to the levels shown for it on plan SK01 dated 1 June 2012 and drawn by IDA and Associates, being the plan identified as such in condition 1 of the modified consent granted by the Court on 13 June 2012. 4. Dismiss the Second Respondent's notice of motion dated 1 April 2014. 5. The Respondents must pay the Applicant's costs of the proceedings. 6. Reserve liberty to apply on seven days' notice for the working out of these Orders. 7. Exhibits, other than Exhibit 2, may be returned.

Definitions In these Orders the following words or phrases have the following meaning: "fill" means soil, rock, builder's waste or other similar material deposited on the Land, that has been relocated from elsewhere on the Land or obtained from another site, but does not include topsoil. "Development Consent" means the development consent 10/0119 granted by the Applicant to the First Respondent on 22 April 2010, as modified by the order of the Court on 13 June 2012 or as may be further modified in accordance with the provisions of the Environmental Planning and Assessment Act. "the dwelling" means the dwelling being erected on the Land pursuant to and in purported compliance with the Development Consent and includes associated works and structures that are the subject of the Development Consent. "the Land" means Lot 2 in Deposited Plan 364503 and known as 215 Loftus Avenue, Loftus NSW 2232. "Tree 1" and "Tree 2" mean the Angophora costata trees on the Land marked Tree 1 and Tree 2 respectively on the plan annexed to these Orders and marked "B". Sutherland Shire Council v Sud Annexures (1.16 MB, pdf)

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: 24 August 2015

Environment Operations Act 1997(NSW)

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