Abdul-Rahman v Bankstown City Council

[2013] NSWLEC 1034

Land and Environment Court

New South Wales

Medium Neutral Citation:

Abdul-Rahman -v- Bankstown City Council [2013] NSWLEC 1034

Hearing dates:

25 & 26 February 2013

Decision date:

26 February 2013

Jurisdiction:

Class 1

Before:

Dixon C

Decision:

(1)The appeal in file number 12/11266 is dismissed.

(2)The appeal in file number 13/10030 is dismissed.

(3)The exhibits are returned.

Catchwords:

Modification appeal - retrospective approval of modifications to a dual occupancy development - multiple amendments of the original application after the commencement of the hearing

Legislation Cited:

Civil Procedures Act 2005
Environmental Planning and Assessment Act 1979
Land and Environment Court Act 1979

Cases Cited:

Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27

Category:

Principal judgment

Parties:

Omar Abdul-Rahman (Applicant)
Bankstown City Council (Respondent)

Representation:

Counsel
Mr G McKee (solicitor) (Applicant)
Mr A Seton (solicitor) (Respondent)
Solicitors
McKees Legal Solutions (Applicant)
Marsdens Law Group (Respondent)

File Number(s):

11266 of 2012 & 10030 of 2013

Extempore Judgment

1. The applicant has lodged two appeals in respect of a dual occupancy development he has built at 227 Wangee Rd Greenacre.

1. The first appeal (file number 11266 of 2012) seeks retrospective approval of modifications to a development consent (DA1139/2011) issued by Bankstown City Council on 5 April 2012. The application form describes the modifications as "Roof & façade changes from Brick to glass & Deleted parapets (sic)". The Council refused the modification application for the reasons articulated in the notice of determination issued to the applicant dated 14 November 2012. Ground number 5 of the notice of determination states, "There is insufficient information to assess the proposal and determine its impact on the adjoining properties and the streetscape (pursuant to 79C(1)(a)(iv) of the Act)."

1. The second appeal (file number 13/10030) concerns an application for a building certificate. The Council had refused the issue of that certificate and the Court was to deal with that matter after a determination of the first modification application under s 97AA of the Environmental planning and Assessment Act 1979 (The Act).

1. Both appeals were listed for determination under s 34AA of the Land and Environment Court Act 1979 (LEC Act). Under that section the parties are required to attempt to conciliate the issues between them. However, these matters could not be conciliated. This is because the Council maintained that the applications are deficient in detail and based on inaccurate plans.

1. In those circumstances the conciliation was terminated onsite and the Court immediately proceeded to hear and determine the appeals.

1. At the outset of the modification application hearing I had to deal with a notice of motion filed by the applicant on 21 February 2013. The notice of motion sought leave to rely on additional information and amended plans prepared by GEC Consulting dated 20 February 2012 (exhibit A). The amended plans related to the ground and the first floor of the built development and included elevations and shadow diagrams. The additional information included a further letter of certification - prepared by Sydney Registered Surveyors and dated 19 February 2013. That document purported to certify that the amended plans reflected the building as it stood on the site. It was an amendment of the original application.

1. The motion was supported by an affidavit prepared by the applicant's solicitor Mr McKee sworn on 21 February 2013. It set out the relevant history of the application and the need for the amended plans.

1. At paragraph 3, Mr McKee explains that on 11 February 2013 the planners in the appeal met to discuss a joint report. During the meeting the applicant's planner, Mr Chapman, telephoned Mr McKee to advise that the Council had taken measurements onsite and they did not believe that the information on the plans was correct.

1. The planners then attended the site to measure the setbacks and compare the measurements with the plans filed with the proceedings. The result of their investigations confirmed that there were inaccuracies in the drawings in relation to the front and rear setbacks at ground level and at the first floor level.

1. On 12 February 2013 the applicant's draftsman and surveyor apparently met on site to accurately measure all the setbacks.

1. On 19 February (some 7 days later) the draftsman provided updated plans showing what was said to be accurate measurements and calculations of the building as it stood. Mr Wilkinson, of Sydney Registered Surveyors certified (by a letter dated 19 February 2013 which is exhibit B) the accuracy of the measurements in the amended plans. The letter was in identical terms to that filed with the original application certifying that those plans reflected accurate measurements of the building as it stood.

1. On 20 February 2013 the Council's solicitor forwarded a letter to the applicant's solicitor stating that it did not agree to the amended plans being dealt with in any expert conferencing without leave from the Court to rely on those plans.

1. On 21 February 2013 the applicant filed a notice of motion seeking the Court's leave to rely upon the amended plans and additional information. The motion came before the Registrar on 22 February 2013 and the Council opposed leave to rely on the amended plans and the certification. The Registrar deferred the determination of motion to the start of the hearing the following Monday.

1. Despite that ruling the planners, as best they could, did consider the amended plans in their joint report prepared during the afternoon of 22 February 2013(exhibit 7).

1. At the commencement of the hearing (essentially because we were at the site) the Council agreed to the Court taking a view of the property and receiving evidence from the planners about the amended plans. However, the applicant and the Court understood that the council opposed the substitution of the plans and this was to be argued when the hearing resumed in Court after the view.

1. At the resumed hearing the Council restated submitted that the Court should dismiss the application because the plans filed with the class 1 appeal were inaccurate and that it was too late to introduce amended plans. The Council submitted that its planner was unable to comprehensively deal with the amendments on the run and it was unfair and prejudicial to the Council. Furthermore, the substitution of the amended plans at this late stage made a mockery of the Court's Practice Notes. The Council adduced evidence, which demonstrated that it had repeatedly asked the applicant to provide accurate plans and additional information about the built development. These matters were detailed as a ground of refusal of the application and raised as a contention early in the proceedings and at the joint conference of the planners.

1. The Applicant argued it had acted promptly to prepare the amended plans and additional information and there was no prejudice to the Council.

1. After a consideration of the competing submissions; and, mindful that I had inspected the site; heard evidence from the planners about the amended plans; and, the joint report dealt with the amended plans I decided to allow the substitution of the amended plans and the additional information in the proceedings. However, leave was subject to the applicant's surveyor, Mr Wilkinson, attending the hearing to explain to the Court his certification of the plans in the letter dated 15 November 2012 filed with the proceedings as being accurate and, his more recent certification of the amended plans (filed on 21 February 2013 with the notice of motion) as also being accurate.

1. Mr Wilkinson, the applicant's surveyor did attend as directed and gave evidence. He told the Court he had attended the site to prepare the subdivision plan and later to certify the works at various stages. However, he was unable to explain how his signature appeared on one of the certification letters filed with the Court. Despite that he conceded after a comparison of the amended plans with the subdivision plans he had prepared that the amended plans the subject of the motion were not accurate. He told the Court that the front setback at the upper level on the western side of the amended plans was about 23cm out. He agreed with Mr Seton, the Council's solicitor, that "the architect has it wrong".

1. It follows from his evidence that his most recent certification letter of 19 February 2013 in respect of the amended plans, as reflecting what has been built, is not accurate.

1. At the conclusion of the surveyor's evidence Mr Seton renewed the Council's application to have the proceedings dismissed on the basis that the amended plans were now known to be inaccurate. Apart from the surveyor's admissions about the inaccuracy of the plans the Council submitted that in the short time available to review the amended plans the Council's planner had identified two further errors with the amended plans. The amended plans do not show the window in the ensuite on the eastern elevation at the upper level or correctly identify the master bedroom ensuite and walk in robe. These matters, together with the surveyor's evidence, were offered to support a submission that Court has no plan before it that accurately reflects the built form sought to be approved

1. In response, the applicant's solicitor submitted that the errors identified by the evidence were minor; and the amended plans should nevertheless be allowed.

1. At the conclusion of the parties' submissions I reserved my decision in order to reflect on the evidence. I also invited the applicant to consider discontinuing the appeals in order to avoid the proceedings possibly being dismissed and further costs.

1. Having considered the matter overnight I have decided to dismiss the applications for the reasons submitted by the Council's solicitor. Despite giving the applicant an opportunity to rely on amended plans (after the hearing had commenced) I am not prepared to allow the matter to proceed on inaccurate and uncertified plans or to allow further amendments of the application. The Court simply does not know what it is being asked to approve as built. The contentions raise issues about the lack of information and inadequate information the applicant has been on notice about these matters for some time. I accept the Council's submission, based on the evidence of Mr Wilkinson the applicant's surveyor, that there is no accurate detail before the Court in the amended plans about side setbacks or the FSR of this development as built.

1. In those circumstances, how can the Court deal with the contentions raised in the modification appeal or direct the Council to issue a building certificate in the building appeal?

1. Unfortunately, I must dismiss each appeal. To do otherwise in my opinion does make a mockery of the Court's Practice Notes and is inconsistent with the overriding purpose expressed in s 56A of the Civil Procedure Act 2005 (see Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27). Plans to be relied upon need to be provided well before the hearing has commenced. Amendments during the course of a proceeding to reduce issues is one thing, but to allow multiple amendments of the plans to define the application after the hearing has commenced is unacceptable and a waste of public money.

1. I make the following orders:

(1)   The appeal in file number 12/11266 is dismissed.

(2)   The appeal in file number 13/10030 is dismissed.

(3)   The exhibits are returned.

Susan Dixon

Commissioner of the Court

Decision last updated: 28 February 2013