Temelkovski v Wright

Affidavit of Mr Temelkovski

1. The First Applicant prepared an affidavit sworn 28 July 2016. The First Applicant did not become aware of the First Respondent's DA or development consent until in or about early April 2016. In or about March 2016 he became aware that the tenants of 3 Hill Street were moving out, and in late March 2016 or early April 2016 the tenants moved out. On or about 28 March 2016 the First Applicant met two men at 3 Hill Street who stated that they were contractors working on behalf of the Council undertaking an assessment as the house was about to be demolished. In or about late March 2016 the First Applicant contacted the Council and was informed that he would need to make an application under the Government Information (Public Access) Act 2009 (NSW) (GIPA Act) to obtain information about the development at 3 Hill Street.
2. On or about 1 April 2016 the First Applicant was provided with a copy of the notification letter and attached plan by the owners of 1 Hill Street which was annexed to the affidavit. The plan did not provide the First Applicant with enough information to assess the impact on his property. On or about 11 April 2016 the First Applicant spoke to Mr Peisley Council officer by telephone and Mr Peisley informed him that there wasn't anything the Council could do and advised him to "chase it through the Land and Environment Court". On or about 12 April 2016 the First Applicant received from Mr Peisley the Statement of Environmental Effects (SEE), approved plans and the notice of determination. In or about mid-April 2016 the First Applicant began to prepare his submission to Council, and obtained legal advice from Mr Stojanovski of Keystone Lawyers. On 19 April the First Applicant contacted Mr Peisley for further information regarding the engineering drawings and on 22 April sent a submission to Mr Peisley by email. The email stated: Please find attached our submission regarding the proposed development at 3 Hill St Merewether. Legal advice we have sought has indicated that there has been a "denial of procedural fairness" as council did not conduct an updated search when sending out its notification letter. I would kindly request that council provide a written response to this submission within 7 days. … On 2 May 2016 Mr Guest Council's solicitor told the First Applicant that once a DA is issued Council's hands are tied.
3. On or about 18 May 2016 the First Applicant contacted Mr Wright the First Respondent's husband to discuss his concerns and sent an email to him the next day. On 1 June the First Applicant met with Mr Wright for approximately two hours. On 2 June 2016 Mr Wright responded to the First Applicant's email of 19 May 2016 and intimated that he was hoping to be able to resolve the development issues. The First Applicant sent a further email to Mr Wright on 3 June. On 10 June 2016 he received an email from the Council attaching the assessment report. On 12 June 2016 the First Applicant emailed Mr Wright regarding the development and seeking an amicable resolution of his concerns. Throughout June 2016 the First Applicant engaged professionals to assess his submission so that he could determine whether to take the matter further. When it became apparent to him that the First Respondent was unlikely to change the design of the house, he decided to seek further legal advice. On 5 July 2016 the First Applicant made an informal request to the Council for information regarding the Council's notification of the DA, and in reply on 8 July 2016 he was informed that he would be required to make a formal application under the GIPA Act. The GIPA Application was lodged on or about 12 July 2016. On 14 July the First Applicant instructed his solicitors to write to the First Respondent to which there was no reply.
4. On 27 July the First Applicant spoke to a staff member at Land and Property Information (LPI) who told him that LPI does not formally notify a council when ownership is transferred and that the onus is on a council to obtain the information. Subsequently on that day the First Applicant spoke to a staff member at the Council who stated that it was Council policy for the rates department to check the LPI database on a daily basis but that due to an internal administrative problem it takes time for the information to be uploaded onto the system. Consequently the Applicants' ownership of 5 Hill Street was not recorded on the system until 24 August 2015.
5. The First Applicant also attested to his belief that if the works at 3 Hill Street were to be completed then his property would suffer loss of amenity and obstruction of views and loss of privacy. Based on his experience, the First Applicant is aware that the further the works progress the higher the cost will be of altering the works to comply with an amended development approval.
6. Annexed to the affidavit were title searches of numbers 3 and 5 Hill Street, the notice of determination of the DA sent by the Council on 21 November 2015, the letter sent by the Applicants' solicitors to the Council enclosing a cheque for rates on 24 July 2015 as well as copies of email correspondence and attachments referred to in the affidavit, including the submission sent by the First Applicant to the Council on 22 April 2016.

Oral evidence of Mr Temelkovski

1. The First Applicant was cross-examined by counsel for the First Respondent. The First Applicant was asked about his knowledge of the stages of the development at 3 Hill Street and stated that he first became aware that the house was to be demolished on 28 March 2016 and obtained a copy of the DA from the residents of 1 Hill Street on 1 April 2016. He was aware by 12 April that substantive excavation works were ongoing and that demolition had commenced. He was asked whether these works were noisy and replied that there were periods when the works were noisy but did not agree that the noise was substantial. The First Applicant was asked about the legal advice he sought in April 2016 regarding the submission he made to Council on 22 April 2016. An email conversation between the First Applicant and his solicitor was shown to the witness and he was asked what he understood from that email regarding his claim before the Court. The First Applicant agreed that he asked the Council to reassess even though a Council officer had informed him that the Council couldn't reassess it. With regard to the email the First Applicant sent to Mr Peisley on 22 April 2016 attaching his submission seeking reassessment, the First Applicant agreed that he was contending a denial of procedural fairness because Council did not update its database and someone else received the letter or it had gone missing. The First Applicant raised multiple issues about the DA with view loss being one of the major concerns. The First Applicant agreed that at the time of sending his submission to Council on 22 April 2016 he knew what legal arguments he had and that demolition had commenced and was continuing.
2. The First Applicant was asked about his conversations with Mr Wright. Contrary to what Mr Wright attested to in his affidavit, he had never asked Mr Wright to lower the roof height by 500mm. The First Applicant agreed that by mid-June he was aware that demolition was complete and that he did not request the First Respondent to cease work until 14 July 2016. He stated that he was trying to exhaust every avenue before taking the matter to court. The First Applicant was asked whether he knew he could commence proceedings as early as 22 April 2016, to which he replied that court is always an option.
3. The First Applicant was taken to photographs in his submission to Council where he had attempted to represent the height of the dwelling under construction. The First Applicant stated that the diagrammatic portrayal of the expected view loss was a matter of perspective, largely disagreeing with the First Respondent's interpretation that a relatively small area of view loss would occur. He was asked about the previous DA granted by the Council to the First Respondent in 2014 (2014 DA) and the extent of the view loss that would have involved, and stated that he could not say whether the 2015 DA or the 2014 DA would have more severe view loss impacts.

Affidavit of Mr Wright

1. The First Respondent read the affidavit of Mr Wright the husband of the First Respondent sworn 18 August 2016. The affidavit attests to the First Respondent's purchase of the property in 2013 and the 2014 DA granted by the Council on 22 July 2014 for additions and alterations to the previous dwelling on the site. A s 96 modification application to the 2014 DA was approved on 6 February 2015. The DA for the current works was lodged in August 2015 and consent was granted by the Council on 21 November 2015. The original dwelling was tenanted from the date of purchase in 2013 until the First Respondent terminated the lease on 15 March 2016. On 5 April 2016 demolition of the dwelling commenced. The construction contract was entered into on 6 April 2016 and a deposit of $46,325 was paid. The total contract price was $926,500. At the date of swearing his affidavit, construction had commenced by way of bulk earthworks in preparation for pouring the concrete slab.
2. Mr Wright also attested to the communications he has had with the First Applicant, stating that he was first contacted by the First Applicant by telephone in late May 2016 followed by a meeting on 1 June 2016. At that meeting they discussed the Applicants' concerns with the DA being privacy impacts and potential view loss. In an email dated 2 June 2016 annexed to his affidavit Mr Wright agreed to include frosting on a number of windows to eliminate privacy concerns. Mr Wright described conversations he had with the First Applicant on 1 June 2016, including his explanation of the size and position of the rear of the dwelling before the storm that blew it away. The First Applicant requested that Mr Wright consider lowering the roof, to which Mr Wright replied that he would think about it and get back to him. The First Applicant refused Mr Wright's request to consider contributing to the costs of doing so, and stated that he wanted the whole rear section lowered by around 500mm. Mr Wright stated that the First Applicant was asking him to make the building lower than it was in the past. Mr Wright did not agree to any structural changes as he believed that the view loss impact claimed was already less or similar to that of the old dwelling and due to the costs and delay that would be involved.
3. Annexed to the affidavit was a plan prepared by the First Respondent's building designer comparing the southern elevation of the dwelling prior to demolition with the 2014 DA and the dwelling currently under construction. The 2014 DA approved structure is higher than the 2015 DA in the area of the verandah which is alleged to impact on the Applicants' views. Also annexed was an estimate of the costs of ceasing works prepared by the First Respondent's contractor dated 2 August 2016. The cost of demobilisation and remobilisation was estimated at $10,000 each excluding GST and the cost of cessation was estimated at $1,372 per business day excluding GST.
4. Mr Wright attested to his son's acceptance into the academically selective Mereweather High School which is 71km away from the family's current residence in Singleton Heights. If the construction is delayed his son will lose his opportunity to attend this school during his HSC years due to the burden on the family of coordinating travel arrangements for the two hour return trip each morning and afternoon to drive him to and from school. That would be an unacceptable loss to his son's education. That educational opportunity was a significant factor in the timetabling of the development to coincide with his son's HSC years.

Supplementary affidavit of Mr Wright

1. The second affidavit of Mr Wright sworn 23 August 2016 was read by the First Respondent. The affidavit outlines the steps taken to date on the construction of the dwelling at 3 Hill Street, with demolition taking place between 5 April 2016 and 1 June 2016. Mr Wright attested to the noise and disturbance caused by the demolition works that were apparent to the neighbours, and the permission the First Applicant granted contractors to use his power in or about the second week of April 2016. Earthworks were commenced on 18 July 2016 and continued for two weeks. On or about the second week of August 2016 preparations were made for the pouring of the foundations and concrete slab, which is scheduled to commence on 24 or 25 August depending on the weather. Completion of the foundations and slab is the trigger point for a progress payment of $185,300. The bricking up on the lower floor and the new retaining walls along the boundary with 5 Hill Street is to commence in the week of 29 August 2016. Annexed to the affidavit were photos taken of and around 3 and 5 Hill Street before and after a large storm in April 2015. The storm blew down the roof over the First Respondent's verandah, which had previously obstructed views from the Applicant's house.

Affidavit of Mr Peisley

1. The Council read the affidavit of Michael Peisley Council's Development Officer sworn 18 August 2016. Mr Peisley had the primary responsibility for assessing the First Respondent's DA lodged on 11 August 2015. Mr Peisley outlined the approval process for the DA and the notification letter sent on 13 August 2015 to 5 Hill Street which was addressed to D R Fothergill and N A Fothergill as they were recorded in the Council's database as the owners at that time. Change in ownership is only recorded on Council's database when official notification is received from LPI approximately four to six weeks after registration. The Council was notified of the Applicants' ownership of 5 Hill Street on 25 September 2015. On 11 April 2016 the Council was contacted by the First Applicant who advised that he had not been notified of the DA. On 12 April 2016 Mr Peisley sent to the First Applicant the consent for the DA, the approved plans and the SEE. On 22 April 2016 Mr Peisley received the First Applicant's submission in relation to the granting of consent by email, which was annexed to the affidavit.

Agreed chronology On or about Wrights purchased 3 Hill St 14 February 2013 2014 Mr Wright invited to inspect 5 Hill St for possible purchase and photos of views from that deck were obtained 22 July 2014 Consent granted for 2014 DA 2014/531 6 February 2015 Council approved s 96 modification 24 July 2015 Applicants' settlement on 5 Hill St occurred 10 August 2015 Applicants registered at LPI as owners of 5 Hill St Merewether 11 August 2015 Wrights lodge DA 12-27 August 2015 Council arranged for DA to be placed on public exhibition and arranged for notification letter to be sent to adjoining owners in accordance with Council's notification policy 13 August 2015 Council issued notification letter to 5 Hill St Merewether addressed to the Fothergills the previous owners 21 November 2015 Council granted consent for demolition and construction 9 December 2015 Council published notice of consent in "The Star" 15 March 2016 3 Hill St lease was terminated and tenants vacated the property 22 March 2016 Wrights awarded demolition contract 28 March 2016 Contractor advised the Applicants that house is going to be demolished On or about First Applicant contacted Council regarding 3 Hill St, advised not registered owner and to apply for DA through GIPA application 28 March 2016 1 April 2016 Applicants receive copy of notification letter and plans from neighbour at 1 Hill St 5 April 2016 Demolition began 6 April 2016 Wrights entered into a contract for construction with QNV Construction and paid deposit $46,325.00 Second week First Applicant allows demolition contracts to use their power to demolish 3 Hill St interior of April 11 April 2016 First Applicant and Mr Peisley (Council) conversation regarding the Land and Environment Court 12 April 2016 First Applicant receives SEE, approved plans and notice of determination from Mr Peisley 22 April 2016 First Applicant sends a copy of his written submission to Council 18 May 2016 First Applicant contacts Mr Wright to discuss development 19 May 2016 First Applicant sends email to Mr Wright requesting meeting 1 June 2016 First Applicant and Mr Wright meet Mr Wright informs the First Applicant he would not be complying with request to make any further structural changes 1 June 2016 Demolition finishes 2 June 2016 Email from Mr Wright to the First Applicant in relation to 2014 DA 3 June 2016 First Applicant sends Mr Wright an email attaching professional 3D rendered drawings of buildings 10 June 2016 First Applicant receives assessment report from the Council 12 June 2016 First Applicant sends email to Mr Wright stating that his "…professional advice is to seek an amicable solution…in the event this is not possible…next option will be to commence legal proceedings against Newcastle Council to obtain a more independent arbitrator." June 2016 First Applicant engages Andrew Biller - Metroplan Services and Stuart Campbell - CKDS Architecture 5 July 2016 First Applicant made informal request to Council for information regarding notification 8 July 2016 First Applicant received letter from Council to seek notification of DA by GIPA request 12 July 2016 Council sent the First Applicant letter acknowledging GIPA Application 14 July 2016 First Applicant makes inquiries directly to the Wrights' builder Shane Sharpin - QNV Constructions. Applicants' solicitor's first letter to Wrights demanding they surrender the consent by 5pm 21 July 2016 18 July 2016 QNV Constructions construct site fence and mark out bulk earthworks. Earthworks take about two weeks 27 July 2016 First Applicant called the Council and speaks to Customer Service Officer Second week of Footings, crusher dust, plastic and steel reinforcement were prepared on site in readiness for the pouring of the foundations and lower floor concrete slab. August 2016 24 or 25 August 2016 Builders have scheduled their works to pour the concrete slab 29 August 2016 This week the builders have scheduled to be bricking up on the lower floor and the new retaining walls along the shared boundary with 5 Hill Street to commence

1. The Respondents concede for the purpose of the motion that there is a serious question to be tried in relation to the failure of the Council to notify the Applicants as the owners of 5 Hill Street of the First Respondent's DA. The parties agree for the purposes of these proceedings that subrule (4) of r 59.10 does not apply. No arguments concerning the application of s 101 of the EPA Act requiring determination by the Court in relation to this motion were made.

Submissions

1. The ground of review identified in the summons relates to the failure of the Council to notify the First Respondent's DA for 3 Hill Street to the Applicants the owners of 5 Hill Street at the time that notification to neighbours occurred. The Applicants submitted that notification was not in accordance with the DCP. Where such a breach of the EPA Act is established the Court will generally declare a DA invalid given the significant breach of a public law duty. The Applicants could not commence judicial review proceedings until information had been obtained from the Council's file which was not given until a GIPA request was made in July 2016. Non-litigious options were first explored, which is consistent with the objects and purpose of the Civil Procedure Act 2005 (NSW) (CP Act).
2. The First Respondent submitted that there had been substantial delay in commencing these proceedings and she would suffer immediate prejudice if these judicial review proceedings proceed. She accepted that the Applicants became aware of her DA in early April 2016. Proceedings could have been commenced in April 2016 as the Applicants had sufficient information then to do so. They had legal advice in relation to the matter which is the basis for ground 1 in these proceedings as identified in the First Applicant's email to the Council dated 22 April 2016. There is no adequate explanation for why proceedings did not commence until 29 July 2016. There was no notice to the First Respondent of any likelihood of legal action by the Applicants until a letter from their solicitor dated 14 July 2016. Work has been ongoing on the First Respondent's property next door to the Applicants since early April 2016. Substantial expenditure has been incurred and will be incurred in reliance on the DA.
3. The Council adopted the submissions of the First Respondent. The substantial delay in the commencement of proceedings by the Applicants together with the substantial prejudice to the First Respondent caused it to oppose leave being granted.

Leave to commence proceeding out of time refused

1. The Applicants bear the onus of establishing why the Court should exercise its discretion in their favour. The discretionary considerations identified in r 59.10(3) must be considered. Additional factors identified in Bankstown City Council v Ramahi [2015] NSWLEC 74 at [74] include the length of delay, the reason for any delay in the commencement of proceedings and whether an applicant has an arguable case.
2. I accept that the Applicants have an arguable case and probably better than that given Clark v Wollongong City Council [2008] NSWLEC 110 at [58]-[64] where a very similar failure of a council to promptly update its records of property ownership resulted in a failure to notify an owner of land of a development application and the declaration of invalidity of a development consent in Clark v Wollongong City Council (No 2) [2008] NSWLEC 226.
3. The Applicants have an interest as the owners of the property next door to the First Respondent's property in being notified of the DA which they consider will impact unacceptably on them. They wish to have the opportunity to participate, as the statutory scheme provides, in the assessment of the First Respondent's DA, an important right (r 59.10(3)(a)).
4. Of particular relevance is r 59.10(3)(b) given the substantial prejudice to the First Respondent and her family (third parties for the purposes of this judgment) in light of their entirely reasonable reliance on the DA granted by the Council in November 2015. As is clear from Mr Wright's affidavits substantial work has commenced in reliance on the DA and substantial expenditure made by the First Respondent and her husband in reliance on it. Demolition of the old house having been completed substantial building work is continuing on the new house. The house is intended to be completed by December 2016 or January 2017 in time for the start of the school year. The failure in notification by the Council if any is no fault at all of the First Respondent.
5. In Ramahi at [86] the Court determined that the passage of time referred to in r 59.10(3)(b) is that since the expiry of the three month time limit for commencing judicial review proceedings, in this case since 21 February 2016. The Wrights did not enter into a building contract or commence work in reliance on the First Respondent's DA until the expiry of that period. These proceedings were commenced on 29 July 2016 some five months after the time limit expired. That is a substantial period in the circumstances of this case.
6. There is more than one public interest at issue here (subrule (3)(d)). The Applicants rely on the public interest in the enforcement of the public notification of development provisions of the EPA Act which have been held to be significant and are generally precisely enforced by the courts: see Lesnewski v Mosman Municipal Council [2005] NSWCA 99; (2005) 138 LGERA 207, Csillag v Woollahra Council [2011] NSWLEC 17; (2011) 181 LGERA 141. The First Respondent relies on the public interest in having finality of decision-making about development consents. This provides important certainty to holders of those consents and the valuable right to develop which can be acted on, generally resulting in expenditure.
7. There has been substantial delay in commencing these proceedings by the Applicants. They could and should have commenced in April 2016 or very shortly after. The Applicants were told on 11 April 2016 by a Council officer that they would have to seek relief in the Court. Engaging in a pointless request to the Council to review the DA, while no doubt well intentioned, is not an adequate excuse for delay when their neighbour continued to build and incur expense next door with their knowledge. Pursuing negotiations with the Wrights to try and get a design modification in May and June 2016 when the First Respondent was under no legal obligation to do so is also an inadequate explanation for the delay.
8. The email sent by the First Applicant with his submission seeking reassessment of the DA by the Council dated 22 April 2016 refers to legal advice he obtained in relation to the Council's failure to notify him as the owner. The Applicants were on notice at that point of a potential legal claim they could pursue in the Court. According to their counsel it was necessary for a GIPA application to be made for access to the Council's file in order to determine the circumstances of notification. A GIPA request was not made until 12 July 2016, a substantial delay given what was known in April 2016. It is not clear from the evidence when or if the GIPA request was answered by the Council. In any event the first indication to the Wrights of legal proceedings being considered by the Applicants was their solicitor's letter dated 14 July 2016. That is over three months from the time the Applicants became aware of the First Respondent's DA, a substantial and largely unexplained delay.
9. The Applicants submitted in reply that these are judicial review proceedings seeking public law remedies and should not be considered as civil enforcement proceedings in which the actual impacts on a party are material. Part of the evidence filed by the Applicants included the First Applicant's submission to the Council identifying what he considered would be the view, amenity and privacy impacts on their property as a result of the approved DA being built next door. At this stage this material is assertions by the First Applicant and would be likely to be tested and possibly the subject of expert evidence were this matter to be heard. To treat the matter purely as judicial review proceedings raising questions of public law alone is simply not reflective of the impact of these proceedings on the private interests of both the Applicants and the First Respondent. If the Applicants did not consider there was an impact on their property as a result of First Respondent's DA they are highly unlikely to have commenced these proceedings. The consequential order sought in the summons to restrain reliance on the DA suggests that there is more at stake than a public law remedy of declaration of invalidity of the development consent. If these proceedings continue in the absence of an interlocutory injunction restraining work in reliance on the DA it is likely that the house will be substantially built or completed by the time a decision in these proceedings has been made.
10. The substantial delay in commencing these proceedings together with the irremediable prejudice to the First Respondent weighs against the Applicants' extension of time application. The Applicants' Notice of Motion dated 29 July 2016 should be dismissed.
11. In written submission the Applicants stated that, on the assumption that leave to commence these proceedings is granted and the matter is listed for an early hearing, there would be no need for orders restraining the First Respondent from relying on the consent. Relying on the consent would be at the risk of the First Respondent. I do not agree that is where the risk lies particularly where an application for an expedited hearing is not made. Until such time as a development consent is declared invalid the holder is legally entitled to rely on it. The litigation risk of work continuing would be the Applicants' in my view particularly given the extent of work undertaken by the First Respondent and her husband. The failure to promptly apply for and obtain an interlocutory injunction has the possible consequence of further work being carried out in reliance on a consent. In exercising its discretion to grant substantive and consequential relief, the Court considers the extent of work completed by a consent holder and the impact a declaration of invalidity of a development consent and any consequential orders would have on her or him. It may well be in an applicant's interest to apply for an interlocutory injunction to seek to preserve the status quo until the conclusion of the substantive proceedings where an undertaking to stop work or an undertaking to give notice of commencing work is not forthcoming from a consent holder. Such a circumstance was considered by me in Rossi v Living Choice Australia Ltd (No 3) [2013] NSWLEC 46; (2013) 211 LGERA 238 at [400]. In that case I declined to declare a development consent invalid in part because no interlocutory injunction had been applied for and obtained and substantial development work continued while the proceedings were heard and determined.
12. Costs in such a matter usually follow the event in accordance with the discretion identified in s 98 of the CP Act and the usual rule identified in r 42.1 of the UCPR so that an unsuccessful applicant would pay a respondent's costs in the absence of any disentitling conduct. Accordingly, the Applicants must pay the Respondents' costs as agreed or assessed unless a Notice of Motion seeking other orders is filed by the Applicants within 14 days of this judgment.

Order

1. The Court orders: 1. The Applicants' Notice of Motion dated 29 July 2016 is dismissed. 2. The Applicants are to pay the Respondents' costs as agreed or assessed unless a Notice of Motion seeking other orders is filed by the Applicants within 14 days of this judgment. 3. The exhibits are to be returned.

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: 02 September 2016