Zoro Developments Pty Ltd v Northern Beaches Council

The role of the Court on appeal

1. For the purpose of hearing and disposing of the appeal, the Court has the functions of the Council in determining whether the order should be issued. Section 39 of the Land and Environment Court Act 1979 ("the LEC Act") provides as follows: 39 Powers of Court on appeals ... (2) In addition to any other functions and discretions that the Court has apart from this subsection, the Court shall, for the purposes of hearing and disposing of an appeal, have all the functions and discretions which the person or body whose decision is the subject of the appeal had in respect of the matter the subject of the appeal. (3) An appeal in respect of such a decision shall be by way of rehearing, and fresh evidence or evidence in addition to, or in substitution for, the evidence given on the making of the decision may be given on the appeal...
2. The relevant power that the Council had in respect of the matter the subject of the appeal is the power to issue the order pursuant to s 9.34(1) of the EPA Act, which provides as follows: 9.34 Orders that may be given (cf previous s 121B) (1) The development control orders that may be given under this Act are as follows - (a) general orders in accordance with the table to Part 1 of Schedule 5, …
3. Provisions with respect to the giving of orders, which apply pursuant to s 9.36 of the EPA Act, are set out in Part 4 of Schedule 5 of the EPA Act. These provisions include the following, at cl 1: 1 Order may specify standards and work that will satisfy those standards (cf previous ss 121P, 121R) (1) A relevant enforcement authority may give a development control order that does the following instead of specifying in the order the things the person to whom the order is given must do or refrain from doing - (a) specifies the standard that the premises concerned are required to meet, (b) indicates the nature of the work that, if carried out, would satisfy that standard. (2) The relevant enforcement authority may, in any such development control order, require the owner or occupier to prepare and submit to the relevant enforcement authority, within the period specified in the order, particulars of the work the owner or occupier considers necessary to make provision for such matters as may be so specified. (3) The relevant enforcement authority must, within 28 days after those particulars of work are submitted to the authority - (a) accept the particulars without modification or with such modifications as the authority thinks fit, or (b) reject the particulars. (4) If the relevant enforcement authority accepts the particulars of work without modification, the authority must as soon as possible order the owner to carry out that work. (5) If the relevant enforcement authority accepts the particulars of work with modifications or rejects the particulars, or if an owner fails to submit particulars of work as required under this clause, the authority must - (a) prepare, within 3 months after the acceptance, rejection or failure, particulars of the work that the authority considers necessary to make provision for the matters specified in the order given to the owner, and (b) order the owner to carry out that work. (6) An order under this clause is not invalid merely because of the failure of the relevant enforcement authority that gave the order to accept or reject any particulars of work or prepare particulars of any work within the period required by this clause. (7) A relevant enforcement authority may recover from an owner as a debt the authority's expenses of preparing particulars of work under this clause. (8) An order under this clause forms part of the development control order to which it relates.
4. The "relevant enforcement authority" is the Council, but the functions and discretions conferred by this clause in respect of the issue of the order apply to the Court on appeal, pursuant to s 39(2) of the LEC Act.
5. In addition, s 8.18(4) of the EPA Act sets out the powers of the Court on an appeal against an order. Those powers are as follows: (4) On hearing an appeal, the Court may: (a) revoke the development control order, or (b) modify the development control order, or (c) substitute for the development control order any other order that the relevant enforcement authority who gave the order could have given, or (d) find that the development control order is sufficiently complied with, or (e) make such order with respect to compliance with the development control order as the Court thinks fit, or (f) make such other order with respect to the development control order as the Court thinks fit.
6. Even if the statutory requirements for the issue of an order in Part 1 of Schedule 5 are met, the use of the word "may" in both s 9.34(1) and s 8.18(4) imparts on the Court a broad discretion to consider whether to issue an order (s 9.34(1)) and to consider the appropriate orders on the hearing of an appeal (s 8.18(4)). The parties are in dispute as to how that discretion ought to be exercised in the circumstances of the present appeal.
7. In considering whether the statutory requirements for the order are met, and how the discretion of the Court ought to be exercised in the circumstances, s 39(3) of the LEC Act allows me to consider "fresh evidence or evidence in addition to" what was considered by the Council in issuing the order, and s 38(2) of the LEC Act allows me to be informed "on any matter in such manner as it thinks appropriate and as the proper consideration of the matters before the Court permits."
8. The evidence before me at the hearing therefore extended beyond the observations made by the Council prior to the issue of the order, including evidence of the stage of the current works and evidence from inspections carried out after the commencement of the appeal proceedings. This includes evidence from the following:

• The affidavit of Mr Philip Hoffman, a building surveyor employed by the Council.
• The affidavit of Mr Matthew Dunn, a Senior Compliance Officer employed by the Council.
• The affidavit and survey of Mr Paul Byrne, a surveyor engaged by the Council.
• The affidavit of Mr Peter Prasad Maharaj (referred hereinafter as Mr Prasad), an engineer and the sole director of Pyramid Consulting Pty Ltd, who are engaged as the project manager for the construction work at the site.
• The joint expert of Mr Andrew Castle, a structural engineer engaged by Zoro, and Dr Bryn Thomas, a structural engineer engaged by the Council.
• The expert report of Mr Philip Hoffman, a senior building surveyor employed by the Council, and Mr Rodger Dowsett, a private BCA consultant engaged by Zoro.

The site benefits from development consent

1. The site is legally described as Lot 2 DP 842913, and is a battle-axe block known as 67 Seaforth Crescent, Seaforth. It is adjoined by a residential dwelling to the north and west known as 69 Seaforth Crescent (Lot 1 of DP 842913), a residential dwelling to the east known as 65 Seaforth Crescent, a residential dwelling further to the west known as 71 Seaforth Crescent, and Middle Harbour to the south. An aerial photograph of the site and its context is shown at Figure 1.
2. The site benefits from a number of easements over Lot 1 of DP 842913, which are shown in the survey attached to the instrument registered on title, which is depicted in Figure 2. Those easements are confined to the north west of Lot 1. The area adjacent to Seaforth Crescent contains an easement for a right of carriageway, an easement for services and an easement for parking. The area adjacent to Lot 2 then contains an easement for right of footway and for services. This area only extends a small part of the way down the handle of Lot 1, and does not extend to the water.
3. On 15 October 2007, Manly Council (as it then was) issued the consent, approving the construction of a new two storey detached dwelling with double car hard stand, inclinator and landscaping works at 67 Seaforth Crescent, Seaforth ("the site"). Condition DA1 of the consent outlines the plans and drawings that the approval relates to, but not all of those plans and drawings have been made available and are in evidence. Nevertheless, Figure 3 is the roof plan, which shows the orientation of the building on the site. The western boundary of the site is shown by a line running from a small circle on the former mean high water mark of middle harbour, to a small circle to the north marked with 'A'.
4. The landscape plan (not shown here) shows that the approved hardstand parking area is within the area of an easement located on Lot 1, the adjoining land.
5. On 28 June 2018, Dix Gardner Group Pty Ltd issued the construction certificate in respect of the consent. The site plan for the construction certificate is shown at Figure 4.
6. It is immediately apparent that the orientation of the building on the site, as shown on the construction certificate, is different to that in the roof plan that was the subject of condition DA1 of the development consent. Significantly, the western boundary of the site is not shown on the construction certificate plans, and appears to be mistaken for the boundary between numbers 69 and 71 Seaforth Crescent. In order to demonstrate the approximate location of the western boundary, in Figure 5 I have overlaid an estimate of it onto the construction certificate plan, based on its location shown on the survey in Figure 2.
7. Pursuant to s 4.16(12) of the EPA Act, the construction certificate is taken to "form part of the relevant development consent". Further, the construction certificate is assumed to be valid unless it is set aside, and prevails over the development consent plans to the extent of any inconsistency: see Burwood Council v Ralan Burwood Pty Ltd (No 3) (2014) 206 LGERA 40; [2014] NSWCA 404 at [202].
8. In its Statement of Facts and Contentions, the Council raised a contention that alleged the potential lapse of the development consent. However, this contention was not pressed at the hearing and the Council has asked the Court to assume that, for the purpose of these proceedings, the consent has not lapsed.

Works have been carried out on the site

1. Building works commenced on the site in around March 2019, and on 2 April 2019 structural engineering drawings were prepared in respect of the development. The structural engineering drawings show the lift core in a different location to that shown on the construction certificate. The evidence of Mr Prasad is that the construction has taken place in accordance with the structural engineering drawings.
2. The construction presently comprises four separate levels of concrete slabs, structural walls, piers and columns without any cladding, windows, doors finishes or internal fit out as yet constructed. There are a number of openings in the external structural walls. The lift core and internal stairway has also been constructed. A set of concrete stairs have also been constructed leading down from the under house area to the lower terrace area, which are not shown on the construction certificate plans.
3. A number of support structures for the inclinator have also been constructed, for the bracketing system that will support the inclinator structure.
4. Extensive excavation has been undertaken on the site. This includes the excavation of the under house area back to the extent of the northern elevation external wall on the ground and first floor. A number of retaining walls have been constructed, including a retaining wall to the north of the dwelling and wrapping around the eastern boundary, and a sandstone block wall on land within the harbour foreshore, on land owned by Roads and Maritime Services ("RMS") (now Transport for NSW).

The issue of the emergency order

1. Following the receipt by the Council of complaints with respect to the works on the site, a site inspection was carried out on 13 November 2019 by Mr Dunn and Mrs Bramich, the Council's Environmental Health Officer. Following the inspection, a Prevention Notice under the Protection of the Environment Operations Act 1997 was issued on 25 November 2019, and an Emergency Development Control Order was issued on 16 December 2019 ("the emergency order"). The emergency order was issued pursuant to s 9.34 and item 11 of Schedule 5 Part 1 of the EPA Act, which allows a compliance order to be issued if a planning approval has not been complied with.
2. The emergency order required urgent works to be undertaken to comply with the conditions of the development consent, to ensure the geotechnical stability of the site and to remove the works and material that were on the adjoining RMS land. Specifically, the order required: "1. Under the guidance and supervision of a suitably qualified and practicing geotechnical engineer, comply with condition DA 1 of development consent no. 127/06, Issued by Manly Council on 15 October 2007, by removing all unauthorised fill between the southern elevation of the approved dwelling and land owned by NSW Roads and Maritime Services. In this regard, Council's records indicate a pre-existing linear fall between RL 9.09 (at the location of the approved rear terrace) and RL 3.1 (at the top of the existing seawall) which must be reinstated in accordance with the development consent and this Order. 2. Comply with condition ANS16 of development consent no. 127/06, issued by Manly Council on 15 October 2007, by removing all fill and the temporary sandstone wall from the land owned by the NSW Roads and Maritime Services. 3. Upon completion of the works required by item 1, submit to Council a survey plan by a registered land surveyor demonstrating that the land levels and contours between the southern elevation of the approved dwelling and land owned by NSW Roads and Maritime Services have been reinstated in accordance with development consent no. 127/06 and the requirements of this order. 4. Upon completion of the works required by item 1, certification must be submitted to Council from the suitably qualified geotechnical engineer (identified in item 1) certifying the geotechnical stability of the land between the southern elevation of the approved dwelling and land owned by NSW Roads and Maritime Services. 5. All works are required to be carried out in compliance with condition ANS08 of development consent no. 127/06 as follows: "ANS08 The proposed works are carried out so that:- a) No materials are eroded, or likely to be eroded, are deposited, or likely to be deposited, on the bed or shore or into the waters of Middle Harbour; and b) No materials are likely to be carried by natural forces to the bed, shore or waters of Middle Harbour."

The geotechnical piles

1. Following receipt of the emergency order, the evidence of Mr Prasad is that works were undertaken at the site to remove unauthorised fill between the southern elevation of the site and land owned by RMS, and to remove all fill and the temporary sandstone wall from the land owned by the RMS.
2. On 24 January 2020, Mr Prasad received advice from Mr Leigh Bachmann, a structural engineer, that to enable the removal of part of the fill in compliance with the emergency order, it was necessary to stabilise the site through the use of geotechnical support piles.
3. As a result, work commenced to install geotechnical support piles at the southern setback of the boundary to secure the site and allow for the continuation to the removal of fill. The agreed evidence of Mr Castle and Dr Thomas, the structural engineers, is that there are two sets of piles to the southern side of the site. The first set of piles are to support the pool structure, and the second set of piles are those nominated by Mr Bachmann to stabilise the southern side of the site.
4. However, all of the piling cases remain unfilled. Dr Thomas observed onsite on 30 June 2020 that there are indications of recent soil material slope movement, as some of the piling casings, which would have been installed vertically, are now tilting downslope.

The issue of the stop work order

1. Following receipt of the order the subject of the appeal on 20 February 2020, all building works ceased at the site, and the piling cases remain unfilled.
2. Both Mr Castle and Dr Thomas agree that the stabilisation piles are required to ensure the stability of the southern portion of the site. They also agree that there is concern with leaving the piling casings unfilled, as they do not have sufficient strength to resist soil movements and they allow water to penetrate into the southern soil slopes and fill, which may further contribute to a loss of soil strength.

The problems with the works as identified by the Council

1. Whilst the Council submits that it did not intend for the order to prevent works to be carried out in accordance with the emergency order, it nevertheless identifies a number of issues with the works carried out on the site.

Inconsistency with the construction certificate plans

1. The first issue is that, on the Council's case, the building works that have been carried out are not consistent with the construction certificate plans.
2. The first way in which the Council says the works differ from the construction certificate plans relates to the western elevation of the master bedroom on the first floor. The evidence of Mr Dunn is that the external wall has been constructed further to the east when compared to the construction certificate plans and compared to the external walls of the floors below. Whereas the construction certificate plans show the wall on gridline A, it has been built on gridline B. Further, there are openings in that external wall that lead out onto what appears to be a balcony being constructed over the floor levels below. There is no balcony on the construction certificate plans, and the construction certificate plans show only one opening, a window, to the external wall. The difference between the construction certificate plans and the wall as built is shown at Figure 6.
3. Zoro concedes that there is an opening for a balcony, but the evidence of Mr Prasad is that this will be closed once the non-structural infill walls have been installed, as shown in the construction certificate plans.
4. The second way in which the Council says the works differ from those plans is in the location of the lift shaft and main stairway. This was identified when a site inspection was carried out by Mr Dunn for the purpose of the preparation of his evidence. His evidence is that the lift shaft and stairway is closer to the western elevation wall than what is shown in the plans. The difference is shown in Figure 7.
5. In oral evidence, Mr Prasad agreed that the lift shaft and stairway were built in accordance with the structural engineering drawings and not in accordance with the construction certificate plans.
6. The third way in which the Council says the built form differs from the construction certificate plans is that there is an unauthorised opening in the eastern elevation external wall on the lower ground floor level which leads out to a balcony under construction. This is supported by the evidence of Mr Dunn, who gave evidence that although the construction certificate plans show a plunge pool to be constructed on the south-eastern corner of the under house area, the plunge pool appeared to have been replaced with a balcony as a concrete slab had been constructed in that location. Zoro concedes that a balcony is under construction in that area, and the evidence of Mr Prasad is that the opening will be closed once the non-structural infill walls are installed.
7. The fourth way that the built form differs from the construction certificate plans is that there is a set of concrete stairs leading down from the under house area to the area identified on the plans as the "lower terrace". Zoro says that these stairs are temporary stairs for the purpose of carrying out the construction works, and will be removed following construction.
8. The fifth way that the built form differs from the construction certificate plans is the location of the retaining wall to the north of the building. The evidence of Mr Dunn is that the retaining wall appears to have been constructed much closer to the northern elevation external wall than as shown on the construction certificate plans.
9. The sixth way that the works differ from the construction certificate is the extent of excavation. The evidence of Mr Dunn is that the under house area has been fully excavated back to the extent of the northern elevation external wall on the ground and first floor, whereas the construction certificate plans show the area to the east and the west of the lift shaft and stairway within the under house area to be unexcavated.
10. The final way in which the Council says the development works differ from what has been authorised by the construction certificate plans is that the geotechnical piles are not supported by any approved construction plans or details. This is discussed below.

Inadequate geotechnical investigation

1. A second issue raised by the Council with respect to the works carried out on the site is that the works are not supported by a geotechnical investigation, which was required by the development consent. Specifically, the consent required that a geotechnical investigation be carried out prior to the issue of a construction certificate. It is agreed that this geotechnical investigation was not carried out. The relevant condition is DA345, which requires: "A report from a qualified geotechnical engineer regarding the stability of the site is to be submitted to the Council/Accredited Certifier prior to the issue of the Construction Certificate"
2. Further, the conditions also require, at ANS13, that "Any material that is to be stockpiled on site is to be stabilised and covered to prevent erosion or dispersal of the material".
3. As set out above, Mr Prasad received advice from Mr Bachmann on 20 January 2020, a structural engineer, that to comply with the emergency order it was necessary to stabilise the site through the use of geotechnical support piles, casings for which have now been installed on the site.
4. Mr Castle and Dr Thomas both agree that geotechnical advice ought to be obtained. Mr Castle opines that this advice would be required to ensure that the proposed solution from Mr Bachmann is appropriate, and to be informed on the rock relief across the site. Dr Thomas opines that the geotechnical engineer should be appointed to manage the design of landslip stabilisation works in conjunction with a structural engineer.

Existing encroachments

1. A third issue raised by the Council with respect to the building works is that they have created an encroachment onto the land at 69 Seaforth Crescent. The encroachment is shown on the survey by Mr Byrne, shown at Figure 7, which shows an encroachment of 250mm by the edge of a concrete slab, an encroachment of 130mm by the centre line of a metal starter bar of concrete support structure (which is a support structure for the inclinator), and an encroachment of 180mm by the corner of the ground floor level dincel retaining wall. Each of these encroachments are on an area of 69 Seaforth Crescent that is not burdened by an easement in favour of the site.

Future encroachments

1. A fourth issue raised by the Council is that the construction certificate plans demonstrate that the continuation of the building work in accordance with those plans will create future encroachments onto the land at 69 Seaforth Crescent. The Council submits that this is clearly evident from the construction certificate plans, which demonstrate that the awning over the entrance, the stairs on the western elevation, the ground floor terrace and the pool shown on the site plan, will all encroach on the land at 69 Seaforth Crescent.

Zoro's concerns with the order

1. Zoro raises a number of issues with respect to the order. The first is that Zoro considers that the stop work order is excessively broad and disproportionate to the observations made with respect to the works. That is, Zoro contends that the Council should not have moved to stop all works on the site in circumstances where there are discrete issues only with respect to those works.
2. The second difficulty that Zoro raises with respect to the order is that it doesn't specify what is required for the stop work order to be removed or modified. As such, the order continues in perpetuity and unconditionally, without any way forward for Zoro to recommence works.
3. The third issue is that, consistent with the evidence of the engineers, there is a real risk that the stability of the site will be worsened without geotechnical works being undertaken. This is supported by the evidence of Mr Castle and Dr Thomas. Further, Zoro says that the order prevents the requirements of the emergency order from being carried out.
4. The fourth issue raised by Zoro is that, on the evidence of Mr Prasad, the order has resulted in financial hardship. Elmaaz Construction Pty Ltd, who is engaged to provide construction management services at the site, seeks damages for project delays to the value of $2570 per day commencing on 24 February 2020. Mr Prasad's evidence is that the development of the property is the subject of private financing, which is due to expire in August 2020. His evidence is that he is concerned that he will not be able to obtain further financing for the completion of the building works at the site.

Zoro's proposed orders and submissions in support

1. In circumstances where Zoro agrees that that there have been contraventions of the development consent, Zoro submits that the appropriate course is for the issue of an order requiring compliance with the development consent. In essence, this involves exercising the Court's power to substitute the stop works order with a compliance order. A compliance order under item 11 of Part 1 of Schedule 5 allows an order to be issued to require the owner of the premises to "comply with a planning approval for the carrying out of works". This will allow works to continue on the site, and ensures that the completed works will be in accordance with the consent. The specific orders sought by Zoro are as follows: "1. The Stop Works Order issued 20 February 2020 be revoked. 2. As to the alleged encroaching works referred to in the Affidavit of Paul Byrne and marked as "B", "C" and "D" in the survey report of Mr Byrne annexed to that affidavit, the applicant undertakes: (a) to attempt to obtain the consent of 69 Seaforth Crescent, Seaforth providing consent to the encroaching works (including any easement); or in the absence of obtaining such consent, (b) to remove any encroaching works from 69 Seaforth Crescent, Seaforth. 3. The applicant is ordered to, as soon as practicable, carry out the site stabilisation works set out in the revised sketch of Mr Leigh Bachmann's letter attached to this document (with any changes recommended by the geotechnical engineer, as detailed below), upon the following conditions first being satisfied: (a) An appropriate geotechnical site investigation is carried out in relation to the southern part of the site, including a review by a qualified geotechnical engineer of the Bachmann proposal; (b) The geotechnical engineer is to recommend appropriate site stabilisation works, to be designed in conjunction with a structural engineer. The ultimate recommended proposal may be the Bachmann proposal (with or without changes) or a different proposal if that is considered to be more efficacious; (c) The site (landslip) stabilisation and associated works to the southern portion of the site should be designed and programmed to facilitate the safe removal of the unauthorised spoil and waste materials currently on site, together with drainage (water control system), landscaping and slope surface protection works. The works should be designed and planned to comply with condition ANS08 of the development consent and other relevant conditions. The water control system, including stormwater collection, detention and dispersion are to be designed and installed in order to negate the possibility of the following: • Increasing the risk of further land slipping; • Increasing the risk of erosion and soil wash; • Placing additional lateral hydrostatic load on the retaining structures (d) Production of for construction drawings / specification and construction requirements to Australian Standards. This should include any additional testing and monitoring requirements; (e) Obtain approval for the works from the principal certifying authority; (f) Undertake works in accordance with approved construction drawings and specifications, including any additional testing or monitoring. 4. As to the alleged unauthorised balconies referred to in paragraphs 21(b) and (d) of Part A of Council's Statement of Facts and Contentions filed 12 May 2020, the Applicant is ordered to, prior to the issuing of the occupation certificate, bring such works into compliance with the development consent (incorporating the construction certificate and its approved plans), including the construction of an external wall along gridline AA on the first floor level, and the construction of an external wall along gridline EE on the lower ground floor. 5. The Applicant is ordered to, prior to the issue of the occupation certificate, remove the stairs constructed between the lower ground floor level to the lower terrace bar/pool area as referred to in paragraph 21(e) of the Statement of Facts and Contentions filed 12 May 2020. 6. As to the openings in the western elevation of the master bedroom on the first floor level (as referred to in paragraph 21(a) of the Statement of Facts and Contentions), and any openings in the eastern elevation of the lower ground floor, the Applicant is ordered to, prior to the issue of the occupation certificate, bring such works into compliance with the development consent (incorporating the construction certificate and its approved plans)."
2. Zoro submits that this is an appropriate outcome for the appeal for a number of reasons.
3. Firstly, Zoro submits that the geotechnical piling works carried out to date were not done in contravention of the EPA Act, as they were either required by conditions ANS 8 and 13 of the consent, or alternatively they were required to be carried out by paragraph 5 of the emergency order. Accordingly, Zoro submits that the stop works order was invalid to the extent that it prevented the completion of those works.
4. Secondly, Zoro submits that, if the Court finds that the stabilisation works carried out to date were unauthorised, the Court should nonetheless exercise its power to order Zoro to complete the stabilisation works designed by Mr Backmann. Zoro submits that this is what is proposed in both the orders sought by it, and those sought by the Council. Zoro submits that the only statutory basis for such an order would be the substitution of the order with a compliance order under item 11 of Schedule 5 to the EPA Act. Given the evidence of Mr Castle and Dr Thomas is that stabilisation works need to be carried out "as soon as possible", Zoro submits that these works should be permitted to be carried out.
5. Zoro submits that the approval role for the carrying out of the stabilisation works should be carried out by the accredited certifier who is the principal certifying authority. Zoro submits that, although a development control order that specifies standards and work that will satisfy those standards may involve the Council in some form of approval role as the "relevant enforcement authority", the statute does not exclude the possibility that this role might be assumed by someone else. Zoro submits that the most appropriate person to carry out this approval role is the accredited certifier, who already has a similar role in ensuring compliance with the development consent by virtue of the power available to issue notices under the former s 109L of the EPA Act, which still applies to the present development consent.
6. Thirdly, Zoro submits that completing the works permitted by the consent and the construction certificate will improve the stability of the site. This submission is supported by the evidence of Mr Castle and Dr Thomas, who opine that the water control system, including stormwater collection, detention and dispersion needs to be designed and installed to reduce the risk of further land slipping, erosion and soil wash.
7. Fourthly, Zoro submits that the remaining contraventions identified are not sufficient to prevent works continuing on the site. Specifically, it says that the unauthorised openings will be filled in by non-structural walls prior to the completion of works and the temporary stairs will be removed. With respect to the retaining wall, the evidence of Dr Thomas is that the extension of the wall is a practical solution to retaining the upward soil slope at the site, and both Mr Castle and Dr Thomas agree that the original approved drawing is a sketch cross section of the proposed slope works, without any engineering input. As such, Zoro submits that the evidence is that no works are required to be done with respect to the retaining wall. Further, with respect to the location of the lift well at the stairway, Zoro submits that there is no evidence that the movement of the lift has any adverse impact, and that it remains possible for what has been built to be demolished and rebuilt in the correct location, and/or a modified construction certificate issued with respect to the lift location. Zoro submits that, as such, the lift position should not detain the Court from revoking the order and substituting it with a compliance order.
8. Fourthly, Zoro submits that the orders it proposes will require the existing encroachments to be resolved either by obtaining an easement or by their removal. Zoro therefore submits that the existing encroachments ought not form a basis upon which to continue the stop works order.
9. Fifthly, Zoro submits that there is no evidence that continuing building works in accordance with the construction certificate plans will create an encroachment on the adjoining land. Nevertheless, Zoro relies on the evidence of Mr Prasad that the awning over the inclinator landing will not be constructed, and the external stairs that the Council says encroach will be constructed within the property boundary. Zoro relies on evidence from Mr Freixas, a private certifier, that the request "to relocate the external stairs in the easement so that they will be located within the property boundary, with the inclinator awning to be deleted" would be "a very minor change that is not inconsistent within the meaning of Clause 145 of the [Environmental Planning and Assessment Regulation 2000]". Zoro submits that this evidence demonstrates that a construction certificate could be issued reflecting those changes.
10. Further, Zoro submits that it is entitled to carry out work in accordance with the construction certificate plans, which form part of the development consent to which they relate pursuant to s 4.16(12) of the EPA Act, regardless of whether the construction certificate authorises works on adjacent land. Zoro says that although any future encroachment may create a property dispute, it is not a breach of the EPA Act if it is carried out in accordance with the construction certificate plans. Mr Lazarus SC, who makes this submission on behalf of Zoro, relies on the decisions of the Court of Appeal in Burwood Council v Ralan Burwood and Shi v ABI-K Pty Ltd (2014) 87 NSWLR 568; [2014] NSWCA 293. As such, Zoro submits that the potential for future encroachments, based on what is shown on the construction certificate plans, cannot form a basis for retaining the stop works order.

The Council's proposed orders and submissions in support

1. The Council instead seeks orders that the order be modified such that it continues until a modification of the consent is obtained, a construction certificate is issued for the continuation of works, and a building information certificate is issued in respect of works already carried out. Specifically, the proposed orders sought by the Council are as follows: "1. The Stop Works Order issued 20 February 2020 is modified to read: "Immediately stop and cease all building works at the property known as 67 Seaforth Crescent Seaforth NSW 2092 (Lot 2 DP 842913), except for work required by these orders, until: (a) a modification of the development consent is obtained to authorise the variations to the development consent as constructed; and (b) a modified construction certificate to authorise continuation of building works; (c) a Building Information Certificate is issued in respect of work constructed to date." 2. The Applicant is ordered to: (a) Engage an appropriately qualified geotechnical engineer to undertake a site investigation of the southern part of the site to inform the design of appropriate landslip stabilisation works. (b) Design appropriate landslip stabilisation works to comply with condition ANS08 of Development Consent DA 127/06 (Development Consent) and the Emergency Order EPA2019/0386 issued by Northern Beaches Council dated 16 December 2019. Such works are to be designed in conjunction with a structural engineer and geotechnical engineer and to include design for stormwater and site drainage works including stormwater collection, detention and dispersion and final landscape design for the southern part of the site as required by conditions ANS06 and ANS15 of the Development Consent. (c) Prepare construction drawings / specification and construction requirements to Australian Standards, including any additional testing and monitoring requirements for the works referred to in 2(b) above. (d) Obtain approval from the Northern Beaches Council for the work in 2(b) and drawings and specifications in 2(c) above. (e) Undertake works in accordance with approved construction drawings and specifications in 2(c) above, as approved by the Council, including any additional testing or monitoring. (f) All work required by this order is to be completed within 120 days of the date of this order."
2. The Council submits that the evidence demonstrates that the building works have been carried out in contravention of the conditions of consent and contrary to the construction certificate, and therefore in contravention of the EPA Act. Accordingly, there is a statutory basis upon which to exercise the power to issue the order, and therefore for the order to remain in place. The Council submits that its proposed orders are appropriate, on the basis of the following submissions.
3. Firstly, the Council submits that there is no evidence that building work can be carried out on the site in accordance with the current construction certificate. The Council relies on the evidence of Mr Prasad, given in cross-examination, that the works are being carried out in accordance with the structural engineering design plans and not in accordance with the construction certificate. The Council submits that to continue the works, there would need to be orders to demolish stairs and lifts as well as Zoro's orders in paragraphs 4, 5 and 6. As such, to allow the continuation of works would authorise a continuing contravention of the EPA Act, as there is no evidence that the work can be completed in accordance with the construction certificate.
4. Secondly, the Council submits that Zoro would need to obtain a building information certificate with respect to the works already carried out in contravention of the construction certificate. This includes the retaining wall and the lift. The Council also submits that a modification of the construction certificate would then be required to continue works in accordance with the structural engineering plans, and a modification of the consent in accordance with s 4.55 of the EPA Act would then allow for the regularisation of the lift and stairway location, and the retaining wall at the rear. The Council submits that the modification of the consent would allow owner's consent to be obtained for the inclinator on the adjoining land. Mr Pickles SC, counsel for the Council, also points out that if the building is constructed in accordance with the construction certificate, entry and exit from the front door of the premises requires standing on the adjoining land which doesn't form part of the easement. As such, the Council submits that it would be appropriate for any new easement to be procured through the modification application process.
5. Thirdly, the Council submits that there are a number of fire safety issues with respect to continuing to build in accordance with the construction certificate. In particular, the Council submits that if works continue to be carried out in accordance with the construction certificate, compliance with the Building Code of Australia ("BCA") will require fire safety measures for the openings on the western elevation that are on the boundary, or within 900mm of the boundary. Those openings are for a window and the front entrance door. The Council points out that BCA compliance would usually be addressed in the construction certificate, but the construction certificate for the building works does not deal with this issue or identify any particular materials that need to be used for BCA compliance. In support of this submission, the Council relies on the evidence of Mr Hoffman, who opines that there are various solutions that could be put forward to achieve BCA compliance, but that they would ordinarily be put forward at the construction certificate stage, which has not occurred. For that reason also, the Council says that it is appropriate to require Zoro to modify the construction certificate to set out exactly what occurs along the boundary to achieve compliance with the BCA.
6. Fourthly, the Council submits that to allow the continuation of works would be to authorise a contravention of the EPA Act allowing works on property that is not the subject of the development consent. The Council submits that the construction certificate does not authorise the carrying out of works on land that is not the subject of the development consent, and although valid until set aside, a construction certificate cannot approve works on adjacent land outside the easement. The Council submits that the principles espoused by the Court of Appeal in Burwood Council v Ralan Burwood do not extend to allowing a construction certificate to approve building works on adjacent land that did not form part of the development consent. Given that the consent related only to 67 Seaforth Crescent, the Council submits that allowing works to continue on adjacent land that does not benefit from the development consent would be to authorise a contravention of the EPA Act.
7. Fifthly, the Council submits that the filling of the geotechnical piles will result in structures that are not the subject of development consent. It submits, therefore, that the stepped approach it seeks in order 2 above is appropriate and consistent with the powers in s 8.18(4)(f) of the EPA Act. This would require that the geotechnical investigation be carried out first, given that it was required by the consent to be undertaken prior to the issue of the construction certificate.
8. Finally, the Council submits that the letter signed by Mr Freixas is inadequate to support an appropriate way forward for the building works for the site. In particular, the Council says that it does not address the existing works that have been carried out, the absence of an easement on the area of land on which there is an encroachment, the encroachment of the pool and the inclinator, and how lawful access to the front door will be gained for users of the dwelling.
9. As such, the Council submits that whilst the structural works specified in order 2 above can continue, the remaining works should not be carried out until such time as Zoro has obtained a modification of the development consent, a building information certificate, and a modified construction certificate.

The appropriate outcome for the appeal

1. For the following reasons, I am satisfied that the statutory requirements for the issue of a stop work order are met, and that the Court's discretion should be exercised to modify the order.

The statutory requirements for the order are met

1. Pursuant to Item 2 of Part 1 of Schedule 5 of the EPA Act, a stop work order may be issued to the owner of the land if building work is carried out "in contravention of this Act". I am satisfied that, based on the evidence before the Court, building work has been carried out in contravention of s 4.2(1)(b) of the EPA Act, which requires development to be carried out in accordance with the applicable development consent. There are two primary ways in which I consider that the development has not been carried out in accordance with the consent.
2. Firstly, the building works on the site have not been carried out in accordance with the construction certificate (which forms part of the consent, pursuant to s 4.16(12) of the EPA Act). It is conceded that the openings in the western and eastern elevations, which lead to balconies, have been constructed contrary to what is shown in the construction certificate. It is also conceded that the northern retaining wall is constructed in a manner that is not consistent with the construction certificate, notwithstanding that Mr Castle and Dr Thomas consider it to be an appropriate engineering solution. Further, the location of the lift shaft and main stairway is not consistent with the construction certificate. This was also conceded by Mr Prasad, who gave oral evidence that the building works were carried out in accordance with the structural engineering drawings instead of in accordance with the construction certificate plans. Further, the geotechnical piles that have been partially constructed are not authorised by the construction certificate.
3. The second way that the development has not been carried out in accordance with the consent is the failure to carry out a geotechnical investigation, as required by condition DA345.
4. Contrary to the submission made on behalf of Zoro, I do not accept that the requirements of the emergency order, which require the removal of fill and the sandstone wall, go so far as to authorise the construction of the geotechnical piles and associated retaining structures without compliance with DA345 or without a construction certificate authorising their construction.
5. Accordingly, I consider that both the building works with respect to the construction of the dwelling, and the structural works with which the geotechnical piles are associated, are carried out in contravention of s 4.2(1)(b) of the EPA Act.
6. There is, therefore, power to make the stop work order, and to allow the Council's order to remain in place. As set out above, however, the Court has a broad discretion as to whether to issue an order (s 9.34(1)) and to determine the appropriate orders on the hearing of an appeal (s 8.18(4)).

The stop work order should remain in place

1. On the evidence before the Court, I am not persuaded that Zoro can proceed with the construction of the dwelling in accordance with the construction certificate and therefore in accordance with the consent. For this reason, I consider that the stop work order ought to remain in place, and ought not be substituted with a compliance order under item 11.
2. The evidence of Mr Prasad is that the work is being carried out in accordance with the structural engineering drawings, that the lift and stairway have been constructed where it is shown on the structural engineering drawings, and that this is the appropriate location for them so that they have their own footings on solid rock.
3. The structural engineering drawings clearly show the lift core and central stairway in a different location to what is shown on the construction certificate plans (see Figure 7 above). It is self-evident that building in accordance with the structural engineering drawings, rather than the construction certificate plans, will result in a change to the floor layouts for the dwelling. Zoro has not put forward any legal basis upon which construction can lawfully continue in accordance with the structural engineering drawings.
4. Accordingly, I accept the Council's submission that there is no evidence that the building works can continue on the site in a manner that is consistent with the construction certificate. Even if all of the correctional work put forward in Zoro's proposed orders (proposed orders 4, 5 and 6) are completed, which includes the filling in of the western and eastern elevations, and the removal of the concrete stairs, this does not resolve the inconsistency of the building works with the construction certificate.
5. For this reason alone, I am not persuaded that the stop work order should be substituted with a compliance order, as sought by Zoro.
6. Although the above reason is a sufficient basis alone upon which to decline to substitute the order with a compliance order, there is a second reason why I do not consider such a course to be appropriate. The construction certificate, at present, purports to allow building work to be carried out on an area of land on 69 Seaforth Crescent, legally identified as Lot 1 DP 842913, to which the development consent does not apply. This is apparent from the construction certificate site plan (Figure 4) and from the two surveys showing the location of the site boundary (Figures 2 and 8). That building work includes the awning over the entrance, the stairs on the western elevation, the ground floor terrace and the pool shown on the site plan. Whilst the development consent authorises some work to be carried out within the area of the easement (the hardstand parking area and an inclinator), the area of land on which the above-described building work is shown in the construction certificate is outside the lot of land to which the development consent relates, is outside the area of the easement that benefits the subject site, and is therefore not the land to which the development consent relates. For that reason, I consider that although the construction certificate is valid until such time as it is set aside, it is nonetheless voidable or liable to be set aside by reason of it having been issued outside of power, contrary to the EPA Act or unreasonably. Burwood Council v Ralan Burwood is binding authority that inconsistency with the development consent does not invalidate a construction certificate, and that construction in accordance with a construction certificate that is inconsistent with the consent does not breach s 76A(1) (now s 4.2(1)) of the EPA Act. However, the decision in Burwood Council v Ralan Burwood does not preclude the exercise of power by the Court, in proceedings commenced pursuant to s 20(1)(e) of the LEC Act, to set aside a construction certificate that is voidable or liable to be set aside by reason of it having been issued outside of power or contrary to law. For the purpose of the present proceedings, the construction certificate remains valid until set aside. Nevertheless, it would not be appropriate to substitute the stop work order with a compliance order in circumstances where I consider that the construction certificate, which forms part of the planning approval with which the compliance order would compel compliance, is liable to be set aside.

The order can be modified

1. As set out above, Zoro raised a number of other concerns with respect to the order, which I now consider.
2. Firstly, I do not accept that the stop work order is excessively broad. As set out above, both the building works for the dwelling and the structural works with which the geotechnical piles are associated, are carried out contrary to the development consent. Accordingly, it is appropriate for the stop work order to apply to all of the works on the site.
3. Secondly, it is not necessarily the case that the stop work order extended to preclude the works required to be carried out by the emergency order. This is because the stop work order was directed to the building works carried out in contravention of the construction certificate, rather than the removal of fill and the wall as required by the emergency order. However, I accept that this is not clear in the stop work order, and, for abundant caution, the order can be modified to exclude works that are required by the emergency order and any other order that is issued concerning the site.
4. Thirdly, the financial hardship suffered by Zoro is not a sufficient basis on which to exercise the Court's discretion to revoke or modify the order in circumstances where, as set out above, there is no evidence that the building works can continue on the site in a manner that is consistent with the construction certificate.
5. Fourthly, I accept that the evidence clearly establishes that the structural works on the site need to be carried out as soon as possible in order to stabilise the site. However, at present, there is no geotechnical investigation that sets out what works are required (contrary to condition DA345 of the development consent). Both Mr Castle and Dr Thomas agree that one is required. It would seem appropriate in the circumstances to make order 2 as sought by the Council, which requires compliance with conditions of consent and the submission of the proposed works to the Council. However, I am not satisfied that the Court's power in ss 8.18(4)(b) or (f) of the EPA Act extends to making orders that compel compliance with the development consent in circumstances where I have determined that the stop work order should remain in place. I am not satisfied that such orders would fall within subs (4)(f), as they are not orders "with respect to the development control order". Whilst the Court has power to modify the order in subs (4)(b), that power is confined to what can be reasonably ordered within a stop work order. This might include defining or reducing the scope of works that are required to be stopped, or, pursuant to cl 1 in Part 4 of Schedule 5, specifying a standard that the premises are required to meet instead of specifying what must be refrained from. Order 2, proposed by the Council, does neither, and I am not aware of any other basis upon which I could make that order. Of course, it remains open to the Council to issue further development control orders with respect to the site, should it wish to do so.
6. Finally, rather than allowing the stop work order to continue in perpetuity, I am satisfied that the Court's discretion ought to be exercised so that the stop work order remains in place until such time as Zoro can carry out the remaining works without contravening the EPA Act. This can be done by a modification of the consent and the issue of a construction certificate in accordance with the modified consent. An application to modify the development consent allows Zoro to obtain approval for the change to the location of the lift well and stairway, whilst also giving it the flexibility to consider whether to retain some of the built elements that are currently inconsistent with the construction certificate, such as the openings on the western and eastern elevation and the external stairs. It may also result in the resolution of the issue concerning the works on the adjoining property, for which owner's consent will be required (cl 115(1)(h) of the Environmental Planning and Assessment Regulation 2000 ("EPA Regulation")). Once a modification to the consent is granted, Zoro could then obtain a construction certificate for that work pursuant to the modified development consent. This also has the benefit of resolving the BCA issues identified by the Council, with respect to the entrance door and the western window opening, as they will need to be addressed as part of the construction certificate process (cl 145(1) of the EPA Regulation). Contrary to the Council's position, I am not persuaded that a Building Information Certificate is required in conjunction with a modification of the consent and a construction certificate.
7. I am therefore satisfied that the Court's discretion should be exercised to modify the order to reflect my consideration of these matters.

The orders

1. The Court orders that: 1. The appeal is upheld. 2. The Stop Works Order issued 20 February 2020 is modified to read: 1. Immediately stop and cease all building works at the property known as 67 Seaforth Crescent Seaforth NSW 2092 (Lot 2 DP 842913) ("the site"), except for the permitted works, until: 1. a modification of Development Consent DA 127/06 is granted that incorporates some or all of the development as constructed; and 2. a construction certificate is issued in accordance with the modified development consent. 2. "The permitted works" are the works specified in the Emergency Order EPA2019/0386 issued by Northern Beaches Council dated 16 December 2019 and any other order that is issued with respect to the site under the authority of the Environmental Planning and Assessment Act 1979, the Local Government Act 1993 or the Protection of the Environment Operations Act 1997. ……………………. J Gray Commissioner of the Court

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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: 07 August 2020