Bankstown City Council v Ramahi (No 2) - [2016] NSWLEC 34

Land and Environment Court

New South Wales

Amendment notes

Medium Neutral Citation: Bankstown City Council v Ramahi (No 2) [2016] NSWLEC 34
Hearing dates: 30 November 2015, 2-3 December 2015
Date of orders: 08 April 2016
Decision date: 08 April 2016
Jurisdiction: Class 4
Before: Craig J
Decision:
1. Direct the parties to bring in agreed, or in the absence of agreement, competing short minutes of orders reflecting my reasons for judgment.

2. Stand over proceedings to 9.00am on Thursday 21 April 2016 for the purpose of making final orders.
3. Direct that by 4.00pm on 20 April 2016 the parties provide to my Associate a draft of the short minutes of orders for which they contend.
Catchwords: ADMINISTRATIVE LAW - judicial review - ss 76A and 85A of the Environmental Planning and Assessment Act 1979 (NSW) ("EPA Act") - whether complying development certificates issued by accredited certifier for the erection of secondary dwelling valid - complying development within the meaning of cl. 23 of the State Environmental Planning Policy (Affordable Rental Housing) 2009 (NSW) (“ARH SEPP”) - whether it was reasonably open to certifier to conclude plans demonstrated compliance with the relevant provisions of the ARH SEPP - assessment of the standard of unreasonableness - misunderstanding of statutory obligation - certificates granted in breach of the EPA Act - right of occupation - validity of interim occupation certificate - s 109H(3) of the EPA Act – whether complying development certificate capable of founding exercise of power to issue interim occupation certificate - interim occupation certificate invalid - CIVIL ENFORCEMENT - declarations and remedial orders - breadth of Court’s discretion to grant relief under s 124 of the EPA Act - whether remedial action required to address breach - substantial breaches of the ARH SEPP - public interest - integrity of planning controls - responsibility of land owner where participated in the conduct giving rise to the breach or taken advantage of the breach - declaratory and remedial orders proposed.
Legislation Cited: Building Professionals Act 2005 (NSW)
Bankstown Local Environmental Plan 2001
Bankstown Local Environmental Plan 2015
Environmental Planning and Assessment Act 1979 (NSW)
Environmental Planning and Assessment Regulation 2000
Standard Instrument (Local Environmental Plans) Order 2006
State Environmental Planning Policy (Exempt and Complying Development Codes) 2008
State Environmental Planning Policy (Affordable Rental Housing) 2009 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited:
ACR Trading Pty Ltd v Fat-Sel Pty Ltd (1987) 11 NSWLR 67
Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223
Avon Downs Pty Ltd v Federal Commissioner of Taxation [1949] HCA 26; 78 CLR 353
Bankstown City Council v Ramahi [2015] NSWLEC 74
Botany Bay City Council v Saab Corp Pty Ltd [2011] NSWCA 308; 183 LGERA 228
CTI Joint Venture Co Pty Ltd v CRI Chatswood Pty Ltd (in liq) (Receivers and Managers Appointed) (No 3) [2012] NSWLEC 6
D’Amore v Independent Commission Against Corruption [2013] NSWCA 187; 303 ALR 242
Hornsby Shire Council v Trives (No 3) [2015] NSWLEC 190
King v Bathurst Regional Council [2006] NSWLEC 505; 150 LGERA 362
Minister for Immigration and Citizenship v Li [2013] HCA 18; 249 CLR 332
North Sydney Council v Moline; North Sydney Council v Tomkinson (No 2) [2008] NSWLEC 169
R v Connell; Ex parte Hetton Bellbird Collieries Ltd (No 2) [1944] HCA 42; 69 CLR 407
Warringah Shire Council v Sedevcic (1987) 10 NSWLR 335
Trives v Hornsby Shire Council [2015] NSWCA 158; 89 NSWLR 268
Wollongong City Council v Vic Vellar Nominees Pty Ltd [2010] NSWLEC 266; 178 LGERA 445
Category: Principal judgment
Parties: Bankstown City Council (Applicant)
Dianna Ramahi (First Respondent)
Sam Kayellou (Second Respondent)
Helal Wreida (Third Respondent)
Ronell Yatim (Fourth Respondent)
Ali Yatim (Fifth Respondent)
Muhammad Wreida (Sixth Respondent)
Representation:
Counsel:
J E Lazarus (Applicant)
P R Rigg (solicitor) (First Respondent)
M Mando (Second Respondent)
Not applicable (Third Respondent)
Submitting appearance (Fourth, Fifth and Sixth Respondents)
Solicitors:
Lindsay Taylor Lawyers (Applicant)
Peter R Rigg Solicitors (First Respondent)
Legal Edge Australia (Second Respondent)
Not applicable (Third Respondent)
Peter R Rigg (Fourth, Fifth and Sixth Respondents)

File Number(s): 40150 of 2015

Table of Contents

Issues - paragraph 6
The secondary dwelling - paragraph 7
The existing dwelling - paragraph 9

Parties - paragraph 10
Relevant statutory framework - paragraph 11
Complying development certificates are issued and building works carried out - paragraph 26
Evidence in chief from Mr Kayellou - paragraph 97
Environmental impacts of building works - paragraph 111
Oral evidence - paragraph 115

Validity of the complying development certificates - paragraph 134
Relevant principles applicable to the challenge to validity of CDCs - paragraph 139
The determination to grant each CDC was unreasonable - paragraph 154
CDC 1 - paragraph 156
CDC 2 - paragraph 164
CDC 3 - paragraph 168

Secondary dwelling was not built in accordance with any CDC - paragraph 180
Alteration of the existing dwelling to create a separate dwelling - paragraph 184
Occupation certificate - paragraph 198
Declarations and remedial orders - paragraph 216
Complying development certificates - paragraph 222
The two storey addition to the existing dwelling - paragraph 240

Substance of orders to be made - paragraph 241
Costs - paragraph 248
Orders - paragraph 250

JUDGMENT

Prior to the events that give rise to these proceedings, the land known as 30 Virtue Street Condell Park (the Land) was occupied only by a single storey dwelling. Now, not only is that dwelling no longer single storey, it is no longer the only dwelling on the land.
The Land is owned by Dianna Ramahi, the first respondent. In early 2014, Ms Ramahi proposed both to extend the existing dwelling and also to construct a detached secondary dwelling on the Land. To that end, she submitted an application to Sam Kayellou, an accredited certifier, for the issue of a complying development certificate before proceeding with her project. Mr Kayellou is the second respondent in the proceedings.
In response to Ms Ramahi’s application, Mr Kayellou issued a complying development certificate on 19 February 2014. Once that certificate was received, building work commenced and continued, although certificates for modification to the work contemplated by the project were issued on two subsequent occasions. The two storey addition to the existing dwelling proposed living areas on the ground floor and three bedrooms, bathroom and an office were shown as being located at first floor level. The floor plan for the secondary dwelling showed living areas and a single bedroom on the ground floor, with an attached garage forming part of the footprint of that dwelling.
The secondary dwelling came to be constructed with a roof having a ridge height of about 7m above ground level located over the habitable areas of that dwelling. Protruding dormer windows were constructed within the pitch of the roof. These windows were described in the plans that were the subject of the first of the “amended” complying development certificates as “dummy dorma [sic] windows” for “visual purposes only”.
Mr Kayellou identifies State Environmental Planning Policy (Affordable Rental Housing) 2009 (ARH SEPP) as the source of power to issue each of the three complying development certificates issued by him.

Issues

Bankstown City Council (the Council) brings these proceedings both by way of judicial review of the complying development certificate and civil enforcement. Orders directed to the latter aspect of the proceedings arise because construction of both the secondary dwelling and two storey additions to the existing dwelling have been completed. Leave to commence the judicial review aspect of the proceedings later than three months after the date on which Mr Kayellou issued any one of the three complying development certificates was granted by Preston CJ on 7 May 2015 (Bankstown City Council v Ramahi [2015] NSWLEC 74) (Ramahi No 1).

The secondary dwelling

The Council challenges the validity of each of the three complying development certificates issued by Mr Kayellou on the basis that it was not reasonably open to him to conclude that the plans submitted with each application and issued with each complying development certificate demonstrated compliance with the relevant provisions of ARH SEPP. The Council contends that the issue of each certificate could only have occurred if there was a fundamental misunderstanding of the controls expressed in ARH SEPP that must be met in order properly to determine that proposed development is “complying development”.
Alternatively, the Council contends that if the third complying development certificate is valid, the secondary dwelling has not been constructed in accordance with that certificate. Neither the design nor height of the roof of that dwelling accords with the plans to which that certificate relates. As a consequence, partial demolition of that dwelling is sought.

The existing dwelling

The Council also contends that the two storey addition to the existing dwelling has been constructed so as to constitute a third dwelling on the Land. Development of three dwellings on the Land is prohibited development under both Bankstown Local Environmental Plan 2001 (LEP 2001) and Bankstown Local Environmental Plan 2015 (LEP 2015). An order is sought for the carrying out of building work so as to integrate the two storey addition with the existing dwelling, involving internal alterations that will render the two storey addition incapable of use as a separate dwelling.

Parties

The principal respondents to the proceedings are, as I have identified, Ms Ramahi as owner of the land and Mr Kayellou as the accredited certifier who issued the impugned complying development certificates. As will later appear, Ronell Yatim, Ali Yatim and Muhammad Wreida, the fourth, fifth and sixth respondents respectively are believed to have occupied the existing dwelling at some time after the commencement of these proceedings. Helal Wreida, the third respondent, is also believed to have occupied the two storey addition to the existing dwelling at some time after commencement of the proceedings. The fourth, fifth and sixth respondents filed submitting appearances and have taken no part in these proceedings. The third respondent was never served with any summons as she could not be found.

Relevant statutory framework

Until its repeal in March 2015, the local environmental plan controlling development on the Land was LEP 2001. Under that instrument the Land was zoned 2(a)-Residential in which zone development for the purpose of a dwelling house and a dual occupancy was permissible with the consent of the Council.
Section 76A(1) of the Environmental Planning and Assessment Act 1979 (the EPA Act) relevantly requires that if an environmental planning instrument provides that development may not be carried out except with development consent, that development must not be carried out on land to which the provision applies unless “the development is carried out in accordance with the consent and the instrument”. Subsection (2) provides that development consent may be obtained:

“ …
(b) in the case of complying development, by the issue of a complying development certificate.”

Section 76A(5) states:

“(5) An environmental planning instrument may provide that development, or a class of development, that can be addressed by specified predetermined development standards is complying development.”

ARH SEPP is an environmental planning instrument. Clause 23 of that instrument provides that development for the purposes of a secondary

dwelling is complying development if certain development standards are met. By cl 4(2) of ARH SEPP, a word or expression used in that Policy

has the same meaning as it has in the standard instrument attached to the Standard Instrument (Local Environmental Plans) Order 2006 prior to

the 2011 amendment to that Order. In the Dictionary to the standard instrument so identified, the expression “secondary dwelling” is defined as

follows:

“Secondary dwelling means a self-contained dwelling that:
(a)   is established in conjunction with another dwelling (the principal dwelling), and
(b)   is on the same lot of land, (not being an individual lot in a strata plan or community title scheme) as the principal dwelling, and
(c)   is located within, or is attached to, or is separate from, the principal dwelling.”

The detached dwelling for which the complying development certificates were issued sought to engage that definition as a dwelling separate from

the principal dwelling.

As a detached secondary dwelling, the provisions of cl 23(1) of ARH SEPP were potentially engaged. Clause 23(1) provides:

“(1) Development for the purposes of a secondary dwelling (other than development referred to in subclause (2)) is complying development if the development:
…
(g) Development standards
satisfies the development standards set out in Schedule 1.”

There are three clauses in Sch 1 to ARH SEPP, identifying development standards for secondary dwellings, that are presently relevant. Clause 4(1) fixes a maximum floor area for a secondary dwelling. Relevant to the present case, that maximum floor area is 60m². The term “floor area” is defined in cl 4(3) to include the sum of the floor areas of each storey, together with any garage attached to the dwelling.
Clause 9 of the Schedule addresses the minimum side boundary set back for a secondary dwelling. By cl 9(1), the minimum set back is determined according to the area of the lot on which the secondary dwelling is to be built. As the Land has an area of 672m², the minimum side boundary setback is 0.9m. However, that minimum setback is qualified by the provisions of cl 9(2). Where a new secondary dwelling is proposed to be constructed and the height of that new building exceeds 3.8m, the minimum setback is increased by “an amount that is equal to one-quarter of the additional building height above 3.8 metres.”
Clause 10 of Sch 1 specifies the minimum rear boundary setback for a secondary dwelling. For land having an area of 672m², the minimum rear boundary setback is fixed by cl 9(1) at 3m. However, once again, that minimum is increased where the height of a new secondary dwelling will exceed 3.8m. By cl 10(2) that minimum 3m is required to be increased by “an amount that is equal to three times the additional building height above 3.8 metres, up to a maximum setback of 8 metres”.
Carrying out complying development is authorised by s 84A(1) of the EPA Act. The subsection provides:

“A person may carry out complying development on land if:
(a)   the person has been issued with a complying development certificate for the development, and
(b)   the development is carried out in accordance with:
(i)   the complying development certificate, and
(ii)   any provisions of an environmental planning instrument, development control plan or the regulations that applied to the carrying out of the complying development on that land at the time the complying development certificate was issued.”

Section 85 of the EPA Act defines “a complying development certificate” for the purpose of the Act. Subsection (1) provides:

“(1)   Terms of complying development certificate
A complying development certificate is a certificate:
(a)   that states that particular proposed development is complying development and (if carried out as specified in the certificate) will comply with all development standards applicable to the development and with other requirements prescribed by the regulations concerning the issue of a complying development certificate, and
(b)   in the case of development involving the erection of a building, that identifies the classification of the building in accordance with the Building Code of Australia.”

Application for a complying development certificate may be made by the owner of the Land on which the complying development is proposed to be carried out or by any other person with the consent of that owner (s 84A(2) of the EPA Act).
By s 85A(1)(b) application for a complying development certificate may be made to an accredited certifier. The “evaluation” of an application is governed by subs (3) of that section which provides:

“(3)   Evaluation
The council or accredited certifier must consider the application and determine:
(a)   whether or not the proposed development is complying development, and
(b)   whether or not the proposed development complies with the relevant development standards, and
(c)   if the proposed development is complying development because of the provisions of a local environmental plan, or a local environmental plan in relation to which the council has made a development control plan, that specifies standards and conditions for the complying development, whether or not the proposed development complies with those standards and conditions.”

Having “evaluated” or assessed the application for a complying development certificate in accordance with s 85A(3), the council or accredited certifier to whom the application is made may, by operation of s 85A(6), determine the application:

“(a) by issuing a complying development certificate, unconditionally or (to the extent required by the regulations, an environmental planning instrument or a development control plan) subject to conditions, or
(b) by refusing to issue a complying development certificate.”

By cl 134 of the Environmental Planning and Assessment Regulation 2000 (the Regulation) a complying development certificate is required to contain the information identified in that clause. Subclause (1)(e) requires that the certificate include “a statement to the effect that the development is complying development and (if carried out as specified in the certificate) will comply with all development standards applicable to the development”. Subclause (2A) requires that a complying development certificate for any development “must include a copy of any relevant plans endorsed by the certifying authority.”
Section 85A(11) of the EPA Act requires that upon determination of an application for the issue of a complying development certificate, that determination must be notified to the applicant and where made by an accredited certifier, the certifier must notify the Council of the determination. In meeting that obligation for notification by a certifier, cl 130(4) of the Regulation requires that within 2 days after the date of determination the Council must be provided with copies of:

“(a)   the determination, together with the application to which it relates, and
(b)   any endorsed plans, specifications or other documents that were lodged with the application or submitted to the accredited certifier in accordance with clause 127, and
(c)   any complying development certificate issued as a result of the determination, together with any associated fire safety schedule … ”.

The final statutory provision that presently needs to be noticed is s 87 of the EPA Act. Subsection (1) of that section allows either the person making an application to carry out complying development or the person having the benefit of a complying development certificate to “apply to modify the development the subject of the application or certificate”. It will be noticed that it is the development that may be the subject of an application for modification and not the complying development certificate itself. As subs (2) of the section states, the provisions of the Division addressing the application for and grant of complying development certificates apply to an application to modify a development to which a complying development certificate relates in the same way as those provisions apply to the original application. This is to be contrasted with the position that pertains under s 96 of the EPA Act directed to the modification of a development consent.

Complying development certificates are issued and building works carried out

The Land is rectangular in shape with a frontage to Virtue Street of about 14.7m and a side boundary along Eva Street of about 45.7m. The existing dwelling is located towards the southern end of the block, about 7.7m from the Virtue Street frontage. The rear yard of the property in which the secondary dwelling came to be constructed is located within the northern area of the block. As I have already indicated, the Land has an area of about 672m².
Ms Ramahi, as owner of the Land, engaged Unique Building Australia Pty Ltd (UBA) to design and prepare plans, specifications and other documentation for alterations and additions to the existing dwelling and for the construction of the secondary dwelling to which I have earlier referred. UBA was also retained to build that development. Jonathon Zymaras was apparently a plan draftsman employed by UBA. He is shown as the draftsman of plans to which I will shortly refer. The principal of UBA was Rabih (also known as Rob) Chamma.
The architectural plans to which the first complying development certificate related are dated 27 November 2013 and bear UBA’s name and logo. They are shown as having been drawn by “Jonathon”, apparently a reference to Mr Zymaras. The revision note on the plans shows them to be “Rev. A: Complying Development Issue” dated 16 December 2013. A floor plan and roof plan is shown for the secondary dwelling while the floor plan of the existing dwelling, proposed floor plan for the addition to that dwelling at ground floor and first floor level, together with elevation drawings of the proposed additions to the existing dwelling were provided. No elevation drawing is provided for the secondary dwelling.
The floor plan for the secondary dwelling shows a kitchen, living room, bathroom and bedroom on the ground floor with a garage and “storage shed” (at the eastern end of the garage) attached to those living areas on the northern side of the dwelling. The living area and garage/storage shed share a common wall, described in the plan as a “fire rated wall”. The site plan shows the eastern wall of the secondary dwelling to be located 0.9m from the eastern or side boundary of the Land while the northern wall of the attached garage/storage room also has a setback of 0.9m from the northern or rear boundary of the Land. The garage/storage shed has a width of 3.26m. Calculations included on the site plan assert that the area of the secondary dwelling is 57m².
Accompanying the plans prepared for the purpose of applying for the complying development certificate was a compliance report prepared by Mr Zymaras. The compliance table included in that report stated the area of the secondary dwelling to be 56m² while the height of that second dwelling was stated as 6.5m, with the building set back from the rear boundary of 3m. Application for the issue of a complying development certificate was made to Mr Kayellou on behalf of Ms Ramahi by UBA.
Mr Kayellou determined that application on 19 February 2014 by issuing Complying Development Certificate No CDC 033/14 (CDC 1). The development that was the subject of CDC 1 was described as being “Alterations & Addition + Granny Flat + Attached Outbuilding exclud. attic”. CDC 1 also identified the documents to which the Certificate related as including the architectural plans as well as the compliance report to which I have referred
On 20 February 2014 Mr Kayellou notified and sent a copy of CDC 1 and accompanying documents to the Council. He also gave notice of the intent to commence work two days after the date of his Certificate.
Upon receipt of CDC 1, the Council recorded it but did not undertake any assessment referable to the development standards for complying development. It saw its function as one ensuring that long service leave levies had been paid; that any work permits required to be issued by the Council had been obtained and that any security deposits required had been received.
On 28 March 2014 the plans for the development were amended. Those amended plans still bore the name and logo of UBA and again were shown to have been drawn by “Jonathon”. They were described as “Rev. B: Complying Development Issue” against which was endorsed the amendment date.
The Revision B plans included an elevation and section plan for the secondary dwelling as well as a roof plan that differed from that shown on the Revision A drawings. The amended roof plan showed the roof over the living areas for the secondary dwelling sloping from a central north/south ridge with a “dummy dorma window” built into both the eastern and the western plane or pitch of the roof. A single storey flat roof was shown over the attached garage and storage room. The elevation of the secondary dwelling shows each dormer window to be covered by a pitched roof sloping north and south from a central ridge over the window. The elevation shows a ground level RL of 40.320 and a ridge level for the main roof at RL 47.154, indicating a height of just under 7m.
A “design certificate” was prepared by Mr Zymaras to accompany those plans. The compliance table in that certificate states the floor area of the secondary dwelling to be 59m² and asserts the maximum building height to be 6.5m. No change is made to the secondary dwelling in plan form so that the side and rear boundary setbacks remain the same as was shown on the Revision A plans.
On 5 April 2014 Ms Ramahi submitted an application to Mr Kayellou for amendment to or modification of her development, described as being “amended roof plan”. In support of her application she submitted the plans and document to which I have referred. Mr Kayellou determined that application on 7 April 2014 by granting “Amended Complying Development Certificate CDC 033/14/A” (CDC 2). The development described in his certificate was “amended roof plan”. The plans and design certificate to which I have referred were endorsed by Mr Kayellou as being part of CDC 2.
Those plans, together with CDC 2, were provided to the Council by Mr Kayellou on 9 April 2014. Again, receipt of the certificate was recorded but otherwise no substantive assessment of the certificate was carried out by the Council.
On 24 April 2014, the Council received a complaint from Mrs Nerelle Jones whose elderly mother owned and resided in a dwelling adjoining the Land to its north. The complaint was directed to the extent of building work being conducted on the Land that appeared to involve two storey structures, including the two storey secondary dwelling, otherwise referred to as a “granny flat”. A concern to similar effect was raised by a councillor of the applicant Council on 30 April 2014.
As a consequence of these complaints, Mr Samuel Roche, a building surveyor employed by the Council, visited the premises adjoining the Land to the north on 2 May 2014. The concern expressed by Mrs Jones was directed to the loss of privacy from the secondary dwelling being constructed, founded upon a concern that the garage roof would be used as a balcony or elevated terrace on the first floor of that dwelling which would provide an opportunity for occupants to overlook her mother’s property.
That same day, Mr Roche visited the Land. He observed at the time of his visit that the secondary dwelling had been built to frame stage, with some external walls being installed to form the northern wall of the garage. Although framed up, the roof of the secondary dwelling had not, at that time, been loaded. Mr Roche approached a tradesperson working on the Land, gave that person his business card and requested that he ask the owner of the Land to contact him.
About 10 minutes later he received a telephone call from a man identifying himself as Rob Chamma and stating that he was the builder working on the Land. After that introduction, Mr Roche recalls a conversation to the following effect as having taken place:

“RC:   We have all the approvals in place. The dwellings are being built in accordance with those.
SR:   I acknowledge that the works undertaken don’t appear to be that far removed from the plans but we have concerns in regard to the granny flat roof and the extension. I have a problem with the consent. I think it would be beneficial if we have a meeting on site to determine what further action may be required. The granny flat roof is too high given the side and rear setbacks and needs to be brought down. Also, there isn’t enough landscaping provided. We will assess the CDC ourselves against the SEPP. You should cease work on the granny flat.
RC:   Why does work have to cease?
SR:   Council will more than likely have an issue with the consent that has been issued and Court action is a real possibility.”

On that same day, namely 2 May 2014, Mr Kayellou issued “Amended Complying Development Certificate CDC 033/14/A.1” (CDC 3). The Certificate described the development to which it related as “amended roof plan”. The architectural plans to which the Certificate related and which Mr Kayellou has endorsed as being the subject of CDC 3, bear no discernible indication of their authorship. The only date they bear is 10 January 2012, indicating that they were prepared prior to the plans that were prepared for the purpose of obtaining CDC 1 and CDC 2. Importantly, they show the roof over the secondary dwelling to be a skillion roof with a maximum height above ground level shown as 4.3m. The roof height above the garage is shown as being 3.8m.
The building footprints shown on the plans identified in CDC 3 and their relationship to the Land boundaries remain as they were shown in the plans forming part of CDC 1 and CDC 2 respectively. However, calculations included on the CDC 3 plans state that the “proposed” granny flat area is 60m² while the “outbuilding” area is 35m². The only “outbuilding” identified on the plan is the garage and storage room attached to the secondary dwelling.
CDC 3 and the accompanying documents were forwarded to the Council by Mr Kayellou on 5 May 2014.
Mr Roche next went to the Land on 7 May 2014. There was no work being undertaken at that time. While at the Land he received a telephone call from a man who identified himself as “John”. A conversation to the following effect took place between them:

“John:   I am an associate of the builders, and would like an update.
SR:   I am finalising my assessment against the provisions of the Affordable Rental Housing SEPP and Codes SEPP. I am concerned that the site has been developed to the point where very little open space is provided. The development standards in the SEPPs work in unison to provide the building envelope that may be used. I am also concerned about the height of the Secondary Dwelling and setbacks. It is likely we will issue a letter of demand setting out what Council thinks is wrong with the development, what needs to be done and the consequences if things are not done.
John:   We will lodge a building certificate for the variation to landscaping controls.
SR:   I advise against that, because the site is nowhere near complying with Council’s DCP. We would want a minimum of 80m² in the rear yard, which would need to be located behind the building line.
John:   This should be varied because it is too costly to remove what has been built.
SR:   Council is sick of hearing this. This is not a valid planning argument. Hopefully a resolution can be found, but the works you need to do may well be significant.”

At that time, Mr Roche took a number of photographs of the Land and its immediate environs. The photographs clearly depict framework and scaffolding for both the additions to the existing dwelling and for the secondary dwelling. The framework that can be seen in those photographs includes a completed framework for the roof of the secondary dwelling including framework for the roof and walls of the dormer windows shown on the CDC 2 roof plan for the secondary dwelling.
In the course of inspecting the two storey addition to the existing dwelling on that occasion, Mr Roche observed that a full masonry wall had been constructed in the location where an internal access door was shown on the plan for that addition, being the door providing access between the addition and the existing dwelling. Having drawn the attention of Mr Chamma and Mr Zymaras to that wall and the absence of any opening, Mr Roche said “the two storey addition to the existing dwelling cannot be a separate dwelling in its own right”. He stated that the provision of three dwellings on the Land would not be permissible development under LEP 2001 as that number of dwellings would cause the overall development to be classified as villa development which is prohibited on a lot of that size. Mr Chamma replied with words to the following effect:

“It (the access) will be provided later.”

Mr Roche met with Mr Rob Chamma and Mr Jonathon Zymaras at the Land on 9 May 2014. Mr Roche records a conversation to the following effect as having then taken place:

“SR:   We are concerned about the height of the granny flat given the setbacks. For the building height, you need greater side and rear setbacks. If you reduce the height of the granny flat you will comply.
JZ:   We weren’t aware of the setback requirements of the Affordable Rental Housing SEPP and worked to what was approved by the certifier. Can we use the side setback calculation method of the Codes SEPP to justify the variation to the setbacks under the SEPP, and other parts of the DCP to justify the variation?
SR:   No, you can’t pick and choose the bits of planning instruments to suit your needs.
RC:   The roof storage area is needed and I will be sued if it is taken down.
SR:   With the greatest respect, that is not a significant factor for Council and we hear this a lot.
JZ:   What can we do to make it right?
SR:   You need to get the roof as low as possible. If you submit an amended plan I will review this as quickly as I can. We have received a further CDC which has a skillion roof at a height of 3.8m. This design is ok.
JZ:   We don’t know anything about that and we won’t be building to those plans.”

On 13 May 2014, Mr Roche had a telephone conversation with Mr Kayellou to the following effect:

“SK:   Can you please explain Council’s position to me.
SR:   Council is concerned about the height of the granny flat and attached garage. They don’t comply with the Affordable Rental Housing SEPP because the side and rear setbacks aren’t sufficient for the roof height that has been approved.
SK:   Yes the roof height is a problem. There is an amended plan approved with a skillion roof to the secondary dwelling.
SR: I have seen this but I spoke to the builder and architect and they told me that this was approved without their knowledge. They haven’t seen it and they are not inclined to build to it. The rear setback required for the secondary dwelling is 8m under the ARH SEPP. The ARH SEPP prevails over the Codes SEPP where there is an inconsistency. Council will be ok with a reduction in the roof height to 3.8m, but it is unlikely to support a building certificate for the roof and will take action if the height isn’t reduced.”

In the course of that same conversation, work in relation to the addition to the existing dwelling was raised. Mr Kayellou said:

“The addition to the existing principal dwelling will not be used as an attached dual occupancy type development.”

He added that:

“the wet bar is a bar and there will be a snooker table in the entertainment area.”

Following that conversation, Mr Roche received a telephone call from Mr Kayellou. Mr Kayellou said words to the following effect:

“SK: I have spoken to the builder and advised him about the issue with the roof of the granny flat. I told him that they would need to make it a skillion roof because Council wouldn’t support a building certificate.”

Shortly thereafter, Mr Roche received an email from Mr Kayellou giving his interpretation of ARH SEPP and State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 (the Codes SEPP).
On 15 May 2014, Mr Roche received an email from Mr Zymaras attaching revised plans and a report from UBA. The revised plans showed a pitched roof over the secondary dwelling but redesigned so as to show the roof cut back on its northern section, the apparent purpose of which was to diminish the impact of the roof of the adjoining property to the north. The roof ridge was still shown as retaining its height of almost 7m above ground level. No change was proposed to the dormer window construction in the eastern and western faces of the roof.
The accompanying report sought to advance five reasons why demolition of the roof should not occur, none of which appeared to challenge the claim by Mr Roche that, having regard to the structure as built, the side and rear setbacks meant that the ridge height of the roof exceeded that permitted by cll 9(2) and 10(1) of Sch 1 to ARH SEPP. The arguments advanced were, in essence, that it would be costly and inconvenient to demolish the roof and result in a dispute between UBA and Ms Ramahi.
Mr Roche responded on 19 May 2014. In an email of that date addressed to Mr Zymaras he stated that the Council did not support the amendment that was proposed. He stated that the roof of the secondary dwelling and attached garage was to be reduced in height so as to be no more than 3.8m above natural ground level, measured to the highest point of any part of the roof ridge. Having so stated, Mr Roche responded to each of the five reasons advanced by UBA as to why demolition should not be required. Despite that email, Mr Roche stated in evidence that the roof of the secondary dwelling came to be constructed generally in accordance with the plan sent to him by Mr Zymaras on 15 May, notwithstanding that there was neither development consent nor the issue of a complying development certificate in respect of the secondary dwelling providing for a roof of that design. His evidence in that regard was not challenged.
Mr Roche telephoned Mr Chamma of UBA on 26 May 2014. A conversation to the following effect then took place:

“SR:   How did your meeting with the owner go? Can you please give me an update?
RC:   I was sick and unable to meet with her.
SR:   We have commenced drafting a letter of demand. All work should cease and a letter of demand will be forthcoming.
RC:   Why isn’t Council negotiating on this?
SR:   There are some things that Council will accept, but this isn’t one of them. The secondary dwelling doesn’t comply and if this is allowed to go through, it will create an unacceptable precedent. You need to cease all work onsite until this is resolved.”

On 19 June 2014 the Council wrote to Ms Ramahi expressing its concerns about the secondary dwelling and requiring that all work on the Land cease until such time as the concerns outlined in that letter had been addressed “and the matter finalised.” Copies of that letter were sent to Mr Chamma of UBA and to Mr Kayellou. Mr Roche was the author of that letter. In it, he stated, among other matters:

“Council has significant concerns in regards to the validity of the complying development certificate and associated amendments (CDC 033/14 and CDC 033/14/A) issued by the accredited certifier, Mr Sam Kayellou. The concerns relate primarily to the approved roof height of the secondary dwelling, the setbacks that have been provided from the secondary dwelling, and the internal layout of the two storey addition to the existing single storey (principal) dwelling, which are insufficient and do not comply with the relevant provisions of the State Environmental Planning Policy (Affordable Rental Housing) 2009 (ARH SEPP).
…
Council believes the following deficiencies exist with CDC 033/2014 and CDC 033/2014/A, and that the development does not satisfy the following development standards of the ARH SEPP and the Codes SEPP respectively:
…
3. ARH SEPP – Schedule 1 Clause (4)(1) – allows for a maximum floor area of 60 square metres for the secondary dwelling. The floor area has been calculated at 73.62 square metres which includes the approved roof area accessible by the ‘roof access attic ladder’ as indicated on architectural plans approved under CDC 033/14/A on 7 April 2014, and;

4. ARH SEPP – Schedule 1 Clause 9(2) – as the maximum height of the secondary dwelling is approximately 7 metres (measured from the roof ridge to natural ground level), the required eastern side setback is a minimum 1.7 metres, where only 900 mm has been provided, and;
5. ARH SEPP – Schedule [1] Clause 10(2)(a) – as the maximum height of the secondary dwelling is 7 metres (measured from the roof ridge to natural ground level), the secondary dwelling (including the attached garage) requires a minimum rear setback of 8 metres, where only 900mm has been provided.
…
As a result of the above non-compliances, Council considers that the complying development certificate is invalid, and development has been carried out in contravention of s 76A of the Environmental Planning and Assessment Act 1979. Council requires the following rectification work to be carried out; to ensure that the development will more appropriately reflect the intent of the planning policies that were relied upon in granting consent to the development. This work must be carried out within fourteen (14) days from the date of this letter;
1. Undertake the necessary rectification work to ensure that the roof height of the secondary dwelling and the attached garage does not exceed 3.8 metres at any point. The maximum 3.8 metres roof height is to be measured from the existing natural ground level to the highest point on the roof of the secondary dwelling at any part, and:
…
Council records indicate that CDC 033/14/A.1 has been issued by Mr Sam Kayellou on 2 May 2014 which indicates a lower roof profile (skillion roof) to the secondary dwelling, however recent discussions with your builder, Unique Building Australia Pty [Ltd] indicates that there is no intention to build the development in accordance with the plans approved under CDC 033/14/A.1, and it is not clear whether an application was made to Mr Sam Kayellou to modify CDC 033/14/A.
Council is also concerned that despite repeated requests to cease work, further building work appears to have been undertaken to the roof of the secondary dwelling.
Please be advised that should you not attend to the required rectification works within the time period allowed, Council will commence proceedings in Class 4 of the Land and Environment Court seeking a declaration that the complying development certificate is invalid, and orders of the Court requiring you to attend to these matters. Should these proceedings be necessary, Council may require further rectification work than what has been stated in this letter.
… ”.

In that letter, the Council also expressed the view “that the two storey addition to the existing single storey (principal) dwelling has been designed to facilitate an attached dual occupancy style development”. Among the rectification works required by the letter was demolition and removal of “the bar” located on the ground floor of the two storey addition to the existing dwelling.
In its letter to Mr Kayellou of 19 June, forwarding a copy of the letter sent that day to Ms Ramahi, additional observations were made. In that letter, also signed by Mr Roche, claimed invalidity of the complying development certificates was repeated. The letter to Mr Kayellou continued:

“If Council is required to commence such proceedings, it will be seeking declarations of the Court that CDC 033/14, CCD 033/14/A and CDC 033/A.1 have been invalidly issued. Should this be necessary, you will be joined as a respondent to the proceedings as the person who issued the complying development certificates. In the event that such proceedings are brought, Council may seek its professional costs from you in the event that it is successful in the proceedings.
Prior to this, Council wishes to provide you with an opportunity of confirming the reason for the issue of the complying development certificates, the intended purpose of the issue of the complying development certificates and the legislative basis that you relied upon to issue the complying development certificates.
Furthermore, Council would like you to confirm and provide evidence of all application forms submitted to you for the above mentioned complying development certificates as required in accordance with clause 130(4)(a) of the Environmental Planning and Assessment Regulation 2000.
Please provide a response within fourteen (14) days from the date of this letter and do not hesitate to contact me on 97079830 Monday to Friday during business hours if further clarification is required.”

On 26 June 2014 Mr Kayellou issued a notice to Ms Ramahi under s 109L of the EPA Act. The notice was one of an intention to serve an order under s 121B of the EPA Act, requiring that building work be completed in accordance with “the development consent”. The notice stated that the non-compliant building work “in breach of the consent” was:

“…
2. The constructed roof does not comply with the approved plans.”

A copy of that notice was sent to the Council.

Mr Roche responded on behalf of the Council on 26 June 2014. In an email addressed to Mr Kayellou he stated that the Council would not serve the order identified by Mr Kayellou as the Council intended to commence proceedings in the Court “should the work outlined in Council’s letters of demand not be undertaken”. Mr Kayellou was again requested to supply to the Council the application forms for all complying development certificates issued in respect of the Land.
Mr Roche does not record a response to his last email. However, on 8 July 2014 a meeting was held on the Land, involving the Mayor, Councillor Asfour, Barry Burke, who was Mr Roche’s superior, and Mr Chamma of UBA. Mr Roche did not attend that meeting.
On 30 July 2014, Mr Roche received a telephone call from Ms Ramahi in which a conversation to the following effect took place:

“SR: My supervisor has undertaken a site inspection and was told that an independent report will be submitted. We haven’t received anything yet. We believe that the complying development certificates for the granny flat are invalid because the development doesn’t comply with the ARH SEPP. Council believes that the departures from the SEPP are significant. The main concern is the height of the granny flat, given the setbacks. Under the SEPP, the building height and setback provisions work together. If you have a side setback of 0.9m then the building height needs to be 3.8m. If the height of the building is 7 metres then you need a rear setback of 8m and a side setback of 1.7m. We are willing to accept the setbacks as built, if the height of the building is reduced. If we can’t agree, then it is likely that court action will occur. I am happy to meet with you as the owner and talk you through the issues in detail, so that you understand what is required and why.
DR: Ok, if there’s an issue then we need to resolve it. I will talk to my husband and let you know.”

Within a few minutes of that conversation concluding, Mr Roche received a telephone call from Mr Chamma when a conversation to the following effect took place:

“RC: I have just received the call from the owner abusing me. We are going to send you a report about the granny flat and we will apply for a building certificate. It is late because of Ramadan. Council is being unreasonable because the granny flat could be approved as a secondary dwelling under Council’s DCP. You have threatened the owner with Court action. You are not being reasonable like Barry.
SR: I don’t think we will support a building certificate. Also, I don’t think that I threatened the owner, I am just trying to be honest about the significance of the matter and how Council might act.”

As a consequence of a complaint received from Mrs Jones, Mr Roche again attended the Land on 5 November 2014. At that time he observed that building work was in progress and that the veneer external walls of the secondary delling had been completed and rendered.
On 20 November 2014, solicitors acting for the Council wrote to Ms Ramahi foreshadowing the commencement of proceedings unless remedial action was taken in respect of building work on the Land. Reference was made to the Council’s letter of 19 June 2014 that had identified the Council’s concern for the height of the secondary dwelling and identifying the need for rectification work. The letter continued:

“I am instructed the Council has received no response to its letter, and not only have no rectification works been undertaken, despite ample time having been provided to do so, but the work on the secondary dwelling has continued.
Accordingly, I have been instructed to commence proceedings against you and Mr Kayellou in the Land and Environment Court seeking a declaration that the complying development certificates issued by Mr Kayellou are invalid, and seeking an order requiring work to be undertaken so that the height of the secondary dwelling is lowered.
Should you consider that there are any reasons why the Council should not commence proceedings against you, the Council invites you to identify those reasons in writing within seven (7) days of the date of this letter.
Alternatively, if you decide to carry out the work to reduce the height of the roof, please let me know and provide a time frame within which the work will be completed.
If you dispute that the complying development certificates issued by Mr Kayellou are invalid, you should tell me why so that I may consider this and provide the Council with any appropriate advice.
If I do not hear from you or the Council is not satisfied with your response, I expect that proceedings will be commenced against you without further notice.
In the interim, Council requires you to instruct your builders to immediately cease work on the secondary dwelling. If further work is carried out, Council will have no alternative but to immediately seek an urgent injunction from the Court requiring the work to cease.
…”.

On that same day, the Council’s solicitors also wrote to Mr Kayellou. Reference was made in that letter to the earlier letter from the Council of 19 June in which the Council had outlined its reasons for asserting that the original and first amended complying development certificates were invalid and requesting that rectification work be undertaken so that the height of the secondary dwelling and attached garage did not exceed 3.8m. The letter also repeated the earlier request for a copy of the application made to Mr Kayellou which resulted in the issue by him of CDC 3. Commencement of proceedings for a declaration that CDC 1, CDC 2 and CDC 3 were invalid was foreshadowed and Mr Kayellou invited to advance any reason to dispute the asserted invalidity of those Certificates.
On 24 November 2014 Mr Roche spoke to Ms Ramahi by telephone. Ms Ramahi denied having received a letter from the Council’s solicitors. Mr Roche advised her of the statement in that letter to the effect that the Council proposed to bring proceedings against her as owner of the property. She responded in words to the following effect:

“DR: I have left everything to the builders. You need to talk to them.
SR: Ok, but you need to understand that the proceedings will be brought against you.”

On 25 November 2014, UBA on behalf of Ms Ramahi lodged with the Council an application for a building certificate. The application sought a certificate for “roof of secondary dwelling”. The form of application identifies Ms Ramahi as the owner and appears to have been signed by her.
The plans accompanying that application bear the name and logo of UBA, state the client to be UBA and are shown as having been drawn by “Jonathon”. They are described as being “Rev A Building Certificate Issue, dated 23 June 2014. The drawings include both plans and elevations for the existing dwelling, the addition to it and the secondary dwelling. The east and west elevation drawings show the roof over the secondary dwelling to be cut back on the northern side, consistent with the drawing submitted by Mr Zymaras to the Council on 15 May 2014.
In addition to the architectural drawings, the building certificate application was accompanied by a survey report dated 8 July 2014 together with a report prepared by Mr G Saadi of J M G Consulting Building Approvals. The survey report records the finished floor level of the secondary dwelling as being RL 40.52 and the ridge of that building as RL 47.25, indicating a height above finished floor level of 6.73m. The report of Mr Saadi stated the height of the “granny flat” as being 7.1m, no doubt reflecting the measurement from ground level rather than floor level. His report also states that each of the side setback and rear setback “does not comply”. Notwithstanding that each of those two reports had apparently been prepared in July 2014, neither had been provided to the Council before 25 November when the building certificate application was lodged with it.
On the day upon which the building certificate application was lodged with the Council, Mr Burke from the Council handed to Ms Ramahi a copy of the letter dated 20 November 2014 addressed to her by the Council’s solicitors.
On 4 December 2014 solicitors who were then retained by Ms Ramahi wrote to the Council’s solicitors, requesting that the Council not commence proceedings in this Court for declaratory and injunctive relief while the building certificate application remained to be determined.
By letter dated 19 December 2014, the Council advised UBA of its concerns in assessing the building certificate application and requesting that non-conforming works be rectified and relevant certificates supplied to enable further consideration of the application. Nothing further was done in response to that letter with the result that on 10 February 2015 the building certificate application was refused “as the secondary dwelling does not comply with the relevant provisions of section 149D” of the EPA Act. Reasons were provided and included:

“1. The secondary dwelling has not been constructed to comply with the development standards for complying development under State Environmental Planning Policy (Affordable Rental Housing) 2009 in that:
(a)   The sum of the ground floor area and loft floor area of the secondary dwelling exceeds 60 square metres;
(b)   The secondary dwelling has a setback from the side boundary of less than 1.7 metres; and
(c)   The secondary dwelling and attached garage has a setback from the rear boundary of less than 8 metres;
…”.

The summons commencing these proceedings was filed on 26 February 2015. Mr Roche states that the Council had acceded to the request received from Ms Ramahi’s former solicitor, that proceedings not being commenced until the Council had determined the building certificate application.
On 21 May 2015, Mr Roche obtained a nearmap aerial photograph of the Land, recorded has having been taken on 6 May 2015. Having examined this photograph, Mr Roche noted, among other matters, that fences appeared to have been erected on the Land separating the yard that ran along the Eva Street frontage into three separate yards, one providing a curtilage to the existing dwelling and separating it from the yard adjacent to the two storey addition, with the third yard providing a separate area for the secondary dwelling. What appeared to be paving stones were shown as leading from the two storey extension to the fence leading to Eva Street.
Mr Roche carried out a further inspection of the Land from the street on 25 May 2015. He there observed colorbond metal fencing that had been erected to create the three yards, consistent with his observation made from the aerial photograph. He noted that there were no gates between the three separate yards created by this fencing. He took a number of photographs which appear to be consistent with his observations.
On that same day arrangements were made between Mr Zoppo, the Council’s solicitor, and Ms Ramahi for Council officers to inspect the Land on 27 May 2015. However, shortly after that arrangement was made, it was countermanded by Mr Chamma who, in conversation with Mr Zoppo, stated that consent was no longer given for an inspection on 27 May. In fact, a further inspection did not take place until 15 June 2015 following an order from the Court allowing an inspection to be held at that time.
In the afternoon of 25 May 2015 Mr Zoppo had a three way telephone discussion with both Mr Chamma and Ms Ramahi. In the course of that conversation Mr Chamma said “people are moving in”. Mr Zoppo asked “what do you mean by people are moving in?”. Mr Chamma replied “Nothing, I am not going to talk about it”. Mr Zoppo then stated that he would report the conversation to the Council.
As a result of the report made to him by Mr Zoppo, Mr Roche made an internet search, using the Google search engine, for the terms “30 Virtue Street Condell Park” and “30A Virtue Street Condell Park”. That search resulted in the display of advertisements from the Domain real estate website for each of the properties that were the subject of his search. Upon inspecting the web page for “30A Virtue Street Condell Park”, Mr Roche recognised a photograph of the two storey addition to the existing dwelling house on the Land. Nine photographs in all were displayed on the website, most of which showed internal areas and rooms. The text of the website indicated that a weekly rental of $620 for the property described in the advertisement as follows:

“Brand New Townhouse
Be the first to inspect this amazing and innovatively designed townhouse offering, open plan lounge/dining room, fully tiled flooring, ultra modern kitchen with stainless steel appliances, ultra modern bathrooms, set over 2 levels, built/ins to all bedrooms, master bedroom with ensuite, modern internal laundry/bathroom. Coming soon. Please enquire for further details or appointments.

Mr Roche downloaded photographs from that web page advertisement. Among those photographs was a kitchen showing benches and cabinetry, sink, space for a refrigerator, a number of power points in the wall above the benches and a stove, apparently with cooking surface and oven, above which was installed an exhaust hood and what appeared to be ducting above that hood. One of the other photographs showed a timber staircase apparently leading to the first floor and which Mr Roche recognised to be the approximate location shown on plans that were the subject of CDC 1 of a doorway opening and access stairs at ground level between the two storey addition and the existing dwelling. The wall through which that access doorway was shown on the plans is depicted in the photograph as a solid wall. The kitchen that I have earlier described is in the location shown on the plans that were the subject of CDC 1 to be a “bar” area.
Mr Roche again inspected the Land on 15 June 2015 as a consequence of the access order made by the Court on 5 June. Mr Kayellou’s counsel was present at the time of that inspection.
On entering the secondary dwelling Mr Roche observed that the kitchen, bathroom and living room area appeared to accord with the architectural plans submitted with the building certificate application. Some change was made to the bedroom wall and robe area shown on that plan with “no cabinetry or other features to facilitate clothes storage”. The ceiling in that area had not been installed and while access to the roof area was not available, the internal first floor area appeared to Mr Roche to be “unfinished in that plastering of the internal surfaces had not commenced”.
The floor plan for the secondary dwelling submitted with the building certificate application showed the area to the rear of the garage to be a “work shop”. In the plan that was the subject of both CDC 1 and CDC 2 that same area was shown as being “storage shed”. When inspected on 15 June a “built-in robe with mirrors” had been installed in that area; walls had been lined with gyprock and down lighting had been installed in the ceiling. Photographs were taken by Mr Roche and tendered. The “storage shed” had the appearance of a bedroom.

Mr Roche also observed that an air conditioning unit had been fixed into the northern wall of the secondary dwelling at first floor level. He also observed ducting for air conditioning above that area. Photographs of that ducting were taken and tendered. Mr Roche expressed the opinion that if the first floor of the secondary dwelling was only to be used for storage, it seemed unlikely that air conditioning would be required for that purpose. His evidence was not challenged in expressing that opinion.
Mr Roche states that at the time of his inspection there was no indication that the secondary dwelling was being occupied. Mr Roche then inspected the two storey addition to the existing dwelling house. He immediately observed that some recent changes appeared to have been made to the internal layout of the premises as they did not appear as depicted in the photographs that were downloaded from the Domain website. He observed that the kitchen cabinetry as depicted in the website photograph remained in place but the stove had been removed as had the pictured exhaust hood over. In place of the stove some shelving had been inserted while the rangehood and ducting had been replaced by a wine rack. However, Mr Roche did observe that the exhaust outlet on the external wall of the building to which the rangehood ducting was clearly connected remained in place.
Mr Roche further observed that an opening had been created in the wall between the existing dwelling and the two storey addition. That opening was provided at an elevated level from a landing on the stairway in the two storey addition into the area marked as “kids play area” on the floor plan. Five timber steps appear to be provided below that landing in order to afford pedestrian access. The timber steps appear to be freestanding in that they do not abutt any side wall and the area beneath the steps has not been filled in.
Near to the foot of the staircase within the two storey addition and leading to the first floor Mr Roche observed some bags and boxes containing what he described as “miscellaneous items”. The bags were of a kind that he had previously seen being used to carry clothing and other personal possessions. The boxes appeared to be of a type that would store household goods and personal possessions of a similar kind.
Notwithstanding the changes that he described as “minor works”, Mr Roche expressed the opinion that the two storey addition was capable of ready adaption to be used as a dwelling, separate from the existing dwelling.
The Domain website for the property advertised as 30 Virtue Street Condell Park as viewed by Mr Roche, showed a photograph of the existing dwelling on the Land. The advertisement indicated that the rent sought was $650 per week and described that property as a “brand new townhouse”. It was described in the advertisement as follows:

“Brand new 3 bedroom town house + study room, open plan lounge dining area, modern tiled floors throughout, ultra modern kitchen with stainless steel appliances, ultra modern bathroom and concealed ensuite to master bedroom, built-in wardrobes, modern internal laundry, back patio ideal for entertaining.”

Having also conducted an internet search and discovered that the property “30A Virtue Street Condell Park” was listed as available for lease, Mr Zoppo wrote to Ms Ramahi on 4 June 2015, referring to the result of his search and attaching a copy of the advertisement that he had downloaded. He stated in his letter that he proposed to seek an order restraining the occupation of the secondary dwelling or the two storey addition to the existing dwelling unless he was provided with an undertaking that Ms Ramahi would not cause or permit the occupation of either building by tenants until the present proceedings were “completed”.
Mr Zoppo received a response by email sent on 5 June 2015. That email was from Mr Chamma who stated:

“Sorry but the property is already occupied.”

On 18 June Mr Zoppo caused a notice to produce to be served on Ms Ramahi requiring production of documents relating to the leasing and occupation “of premises located at 30 and 30A Virtue Street Condell Park”. Documents in response to that notice were produced by Mr Chamma on 22 June 2015. The documents comprised a copy of an affidavit apparently sworn by Ms Ramahi for the purpose of these proceedings together with a copy of a residential tenancy agreement apparently dated 1 June 2015, naming Ms Ramahi as the landlord and the fourth, fifth and sixth respondents as tenants. The agreement relates to the premises described as 30 Virtue Street Condell Park and is expressed to be for a term of 12 months. A second tenancy agreement was also produced naming Ms Ramahi as the landlord and the third respondent as tenant. The premises at 30A Virtue Street Condell Park are identified as the premises to which that agreement relates which is also expressed to be for a term of 12 months commencing on 2 June 2015.
The evidence that I have related thus far is not disputed by the respondents. It emerges from affidavits sworn by Mr Roche on 23 February 2015, 20 April 2015, 17 June 2015 and 11 September 2015 to which documents that I have identified were exhibited or annexed. No objection was taken to any of the affidavit evidence of Mr Roche nor to the documents to which reference has been made.
The second source of evidence in the Council’s case emerges from affidavits of Mr Zoppo sworn on 17 June and 6 July 2015 respectively. His evidence was not challenged. Relevantly that evidence confirms that given by Mr Roche as to the information he received from Mr Zoppo.

Evidence in chief from Mr Kayellou

Mr Kayellou read an affidavit that he had affirmed on 6 August 2015. In that affidavit he confirmed that he had issued each of CDC 1, CDC 2 and CDC 3. He states that he issued CDC 1 on the basis of the material supplied to him in the application for that certificate. He noted that the floor plan for the secondary dwelling was shown with an area that did not exceed 60m² as a result of which he decided that the plan complied with cl 4(1) of Sch 1 to ARH SEPP. He also states that the height of the secondary dwelling “did not exceed 3.8 metres and the required setback of 0.9 metres was met” as a result of which he decided that the requirements of cl 9(2) in Sch 1 to ARH SEPP were met.
He next states that CDC 2 was issued after assessing the building plans provided by Ms Ramahi and Mr Chamma. He continued at para 4 of his affidavit:

“The plans showed that the height of the Secondary Dwelling exceeded 3.8 metres and the available setback of 0.9 metres did not meet the requirements and I found that plans did comply [sic] with cl 9(2) of Sched. 1 of the SEPP ARH. However, I was persuaded by the planners and architects introduced to me by Mr Chamma that the plans complied with cl 9(2) of Sch 1 of the SEPP ARH and I decided that plans did comply with cl 9(2) of Sch 1 of the SEPP ARH.”

The basis upon which Mr Kayellou was so persuaded was never identified in his evidence. However, he states in his affidavit that about one month after issuing CDC 2:

“I made contact with the First Respondent and Mr Chamma and explained to them that after looking further into the plans and the relevant law, I arrived at the conclusion that the Secondary Dwelling did not comply with cl 9(2) of Sch 1 of the SEPP ARH and that the Complying Development Certificate CDC 033/14/A needed to be modified.”

Mr Kayellou next states that he issued CDC 3 upon application for modification made by Ms Ramahi and Mr Chamma. Again he recited that the floor plan for the secondary dwelling did not exceed 60 m², thereby complying with cl 4(1) of Sch 1 to the ARH SEPP. The height of the secondary dwelling did not exceed 3.8m “and the required setback of 0.9 metres was met and I decided that plans complied with cl 9(2) of Schedule 1” of the State Policy.
Having been informed “by the public” (sic) that UBA was not constructing the secondary dwelling in accordance with the plans certified under CDC 3, Mr Kayellou states that he issued a notice of intent to serve an order on Ms Ramahi and Mr Chamma requiring rectification of the roof to the secondary dwelling. A copy of that notice was provided to the Council. He further states that at the time at which the present proceedings were commenced, he had not received any response from the Council in relation to his proposed notice.
On 6 May 2015 Mr Kayellou issued Interim Occupation Certificate OC 2014/14-033A.1 in respect of the secondary dwelling. He states that he did so because “there was a valid complying development certificate in effect with respect to the Secondary Dwelling as required by s 109H(3) of the EPA Act.”
The only other evidence read on behalf of Mr Kayellou was an affidavit sworn by his solicitor, Adnan Naeem Meher, on 2 November 2015. Annexed to that affidavit are documents produced by him on behalf of Mr Kayellou in response to a notice to produce to Mr Kayellou issued on behalf of the Council. The documents produced were all documents relating to or recording the applications made for each of CDC 1, CDC 2 and CDC 3 as well as for the Interim Occupation Certificate that Mr Kayellou issued.
In response to the notice to produce directed to documents or communications supporting the issue of CDC 2, Mr Kayellou, through his solicitor, produced a compliance report prepared by Issa Trad, a town planer. The stated purpose of the report was “to demonstrate the compliance of CDC 033/14/A” (sic). The author states that “the relevant development standard used to assess the application” will be outlined and whether “the approval has merit” under the Codes SEPP. Several provisions of the Codes SEPP are identified relevant to the relationship between building height and boundary setback. For this purpose, the author focused upon those provisions of the Codes SEPP directed to the relationship of height and setback of an “outbuilding”. The author does not make reference to the definition of “outbuilding”, the assumption appearing to be that the garage attached to the secondary dwelling on the Land fell within that definition, although why that was so was not explained.
The compliance report concludes that “the approval granted by CDC 2 is compliant with” the Codes SEPP.
The other document of relevance produced by Mr Kayellou, through his solicitor, is a form of application for what became CDC 3. On its face, the document identifies the applicant as Ms Ramahi and in two places bears what appears to be either a signature or initial of Ms Ramahi appearing under her name. It will be recalled that in a conversation with Mr Roche, Mr Chamma denied any knowledge of the application and implied that the application was not made by Ms Ramahi.
The copy of the application said to have been made for CDC 3 was tendered without objection from any party. No evidence was called by or on behalf of Ms Ramahi. Mr Kayellou did give evidence and while he was cross-examined by Mr Rigg, the solicitor appearing for Ms Ramahi, no question was directed to the provenance of the application made for CDC 3. In those circumstances, there is no basis upon which I can decline to accept that the application dated 1 May 2014 for CDC 3 was made by Ms Ramahi and that it was the application determined by Mr Kayellou when he issued CDC 3 on 2 May 2015.
In response to a request from the Council’s solicitors, on 17 July 2015 Mr Kayellou provided a statement of reasons for issuing each of CDC 1, CDC 2 and CDC 3 as well as his reasons for issuing the interim occupation certificate to which I have earlier referred. That statement of reasons became Exhibit D in the proceedings before me. The terms in which those reasons are expressed are substantially replicated in the affidavit affirmed by Mr Kayellou on 6 August 2015 and to which I have earlier referred. His statement of reasons included reference to the application for CDC 2 and the fact that he was persuaded to issue it “by the planners and architects” introduced to him by UBA that the development was complying development. His reasons also record both his further consideration of “the plans and the relevant law” leading to the conclusion that CDC 2 required modification, and also the subsequent application for modification that led to the issue of CDC 3.
In the case of each certificate, Mr Kayellou recites in his reasons his assessment of the plans “within the meaning of cl 23 of ARH SEPP”. He records that in the case of CDC 1 and CDC 3 the plans complied with cll 4(1) and 9(2) of Sch 1 to ARH SEPP for the reason that:

the floor area of the secondary dwelling did not exceed 60m² (cl 4(1)); and

as the secondary dwelling did not exceed 3.8 metres in height “the required setback of 0.9 metres was met” (cl 9(2))

The reasons do not identify any other provision of Sch 1 to ARH SEPP considered by him when determining to grant any of the three complying

development certificates that he issued. Nor do his reasons identify any other provision of either a statute or environmental planning instrument

that informed his decision.

Prior to the hearing Ms Ramahi had filed affidavits in her case to which Mr Roche had responded. However, at the hearing her solicitor, Mr Rigg, stated that he did not wish to read any affidavits in her case and otherwise did not seek to tender any evidence. Nonetheless, he cross-examined Mr Kayellou and made short submissions at the conclusion of the hearing.

Environmental impacts of building works

Both Mr Roche and Mrs Jones have given evidence as to the impact that the newly constructed buildings on the Land have within the immediate locality. In his affidavit sworn on 11 September 2015, Mr Roche says, in summary, that:

the secondary dwelling has “an excessive bulk and scale” because of the height of the building and setback of that building from the side and rear boundaries;

setting back the building from those boundaries by a distance that he calculates is required by Schedule 1 to ARH SEPP would significantly improve the spatial relief both to the adjoining properties and in the presentation of buildings to the street;

development of the land in its present form has the appearance of a villa or townhouse development when viewed from the street rather than a principal dwelling and secondary dwelling;

the “excessive bulk and scale” of the secondary dwelling is emphasised by the contrast with the single storey garage on the immediately adjoining property to the north;

the overpowering size of the building is apparent when viewed from adjoining properties to the north;

opportunities for overlooking those properties is increased from the first floor additions.

Photographs were taken by Mr Roche both from the street and adjoining properties in order to illustrate the impacts about which he spoke.

Mrs Jones spends a great deal of time at the property adjoining the Land to its north and known as 29 Birdsall Avenue Condell Park. That property is owned by Mrs Jones’ mother who requires daily attention because of a medical condition. That care and attention is provided by Mrs Jones who holds a power of attorney from her mother and is also her appointed guardian. That property has provided the family home for some 58 years.
In an affidavit sworn on 11 September 2015, Mrs Jones expresses her concerns about the development on the Land which in summary are:

the proximity of the garage and the two storey secondary dwelling to the boundary and rear yard of the property at 29 Birdsall Avenue affords the opportunity for visual intrusion into the rear yard of the property which includes a swimming pool;

this proximity intrudes upon the privacy that otherwise was experienced in the rear yard, an impact that was felt by the proximity of building workers constructing the upper level and roof of the secondary dwelling;

the size coupled with the proximity of the secondary dwelling to 29 Bridsall Avenue creates the impression that the rear yard of the latter property is “boxed in”; and

if the buildings on the Land are able to be occupied as three separate dwellings there is concern that inadequate car parking is provided to cater for three separate families, observations having been made of seven cars parked in the street proximate to the dwellings on the Land and believed to be vehicles used by occupants of those dwellings.

Although cross-examined on other matters, Mr Roche was not cross-examined on the evidence that he gave directed to the impact of the buildings, as constructed, in the immediate locality. Mrs Jones was not required for cross-examination upon the material contained in her affidavit.

Oral evidence

Mr Roche was required for cross-examination by both Ms Ramahi and Mr Kayellou. He was not challenged on the events or conversation that I have earlier related.
In answer to questions posed by Mr Rigg, Mr Roche accepted that he had seen the roof of the secondary dwelling constructed in the manner illustrated in the plans submitted to the Council for a building certificate. Acknowledging that there was some cutback to the northern section of the roof compared to that shown in the plans forming part of CDC 2, he regarded the structure to be unsatisfactory in that it remained too high, having the impact upon adjoining properties and upon the street earlier described.
In further response to questions from Mr Rigg, Mr Roche accepted that the opening that had been created between the existing dwelling and the two storey addition would make it less likely that each would be used as a separate dwelling. However, the circumstance that the opening had been created at a higher level than that shown in the plans forming part of CDC 1, CDC 2 and CDC 3 coupled with the fact that all facilities had been installed in the manner shown in the photographs published on the Domain website, it was apparent that the two-storey addition was capable of being used and occupied as a separate dwelling. The recently installed stairs and elevated opening between the two structures could readily be removed and closed, as the case may be, and if this occurred the two storey addition could readily be used as a separate dwelling. He accepted that if the kitchen was removed, the objective of ensuring that the existing dwelling and the addition to it remain as a single dwelling would more readily be achieved.
The cross-examination of Mr Kayellou was significant in identifying the way in which he considered and determined each of the three applications for a complying development certificate. He acknowledged that in exercising his function as an accredited certifier he was required to determine whether the development proposed in each application was complying development in that it complied with all relevant development standards. He also acknowledged that he was required to assess each application and to make his determination by applying the provisions of ARH SEPP. For the purpose of so doing, he had in his possession at the time of determination a copy of that State Policy.
In cross-examination by Mr J Lazarus, counsel for the Council, Mr Kayellou said that he understood the provisions of ARH SEPP to prevail over any inconsistent provision of the Codes SEPP so far as each of those Policies specified development as being complying development. He was correct in so doing, having regard to the provisions of cl 1.8(4) of the Codes SEPP which provides:

“(4) If this Policy and State Environmental Planning Policy (Affordable Rental Housing) 2009 specify the same development as either exempt or complying development, that Policy prevails to the extent of any inconsistency.”

He next acknowledged that cl 23 of the ARH SEPP identifies standards in Sch 1 to that Policy which must be met in respect development in order for it to qualify as complying development. When referring to that Schedule, in particular cll 9 and 10, he did not seek to determine the meaning of “attached” in the context of the reference in those clauses to a garage that is “attached to” a secondary dwelling. He was then taken to cl 1(2) of Sch 1 to ARH SEPP, stating that a word or expression used in the Schedule was, unless defined in that Schedule, to have the meaning that it has in the Codes SEPP. In the latter Policy, the word “attached” is defined as follows:

Even if, contrary to my primary finding, Mr Kayellou could reasonably believe in May 2015 that CDC 1 or CDC 3 remained “in force” sufficient to enliven his power to issue an interim occupation certificate (s 109H(3) of the EPA Act), he could not rationally conclude that the precondition for the issue of an interim occupation certificate imposed by cl 154(1B) of the Regulation was satisfied. As a result, his decision to grant IOC 2 is only explainable on the basis either that he was mistaken as to the law to be applied or failed to obey the law that enlivened his power to issue the certificate.
For these reasons IOC 2 was issued in breach of the EPA Act (cf s 122).

Declarations and remedial orders

On the basis that it had established breach of the EPA Act, the Council seeks both declarations of invalidity of the complying development certificates and the interim occupation certificates. It also seeks remedial orders to address the breaches that arise both in relation to the secondary dwelling and also to the two storey addition to the existing dwelling.
It seems to me that this is a case in which it is appropriate to make declaratory orders. As s 76A(2) of the EPA Act makes apparent, a complying development certificate is, for the purpose of that section, a form of development consent, sanctioning the carrying out of development that can only be carried out with consent. As such, it creates rights that attach to the land in respect of which it has been granted rather than a personal right limited to the owner of that land for the time being. As such, it is important that the legal status of any such certificate be the subject of an appropriate order where the validity of such a certificate has been challenged.
The wide discretion that the Court has to make orders of a remedial nature are found in s 124 of the EPA Act. That section relevantly provides:

“124   Orders of the Court
(1)   Where the Court is satisfied that a breach of this Act has been committed … it may make such order as it thinks fit to remedy or restrain the breach.
(2)   Without limiting the powers of the Court under subsection (1), an order made under that subsection may:
(a)   where the breach of this Act comprises a use of any building, work or land – restrain that use,
(b)   where the breach of this Act comprises the erection of a building or the carrying out of a work – require the demolition or removal of that building or work, or
(c)   where the breach of this Act has the effect of altering the condition or state of any building, work or land – require the reinstatement, so far as is practicable, of that building, work or land to the condition or state the building, work or land was in immediately before the breach was committed….”.

The breadth of discretion available to the Court to grant relief under s 124 has been the subject of observation in many decisions of the courts including decisions given by the Court of Appeal. It is unnecessary to rehearse all that has been said in emphasising the breadth of that discretion. As Street CJ observed in F Hannan Pty Ltd v Electricity Commission of New South Wales (No 3) (1985) 66 LGRA 306 at 311, the power given by s 124(1) to make “such order as it thinks fit” enables the Court “to mould the manner of its intervention in such a way as will best meet the practicalities as well as the justice of the situation before it”. The Chief Justice continued at 313:

“It is the duty of that Court, in formulating ‘such order as it thinks fit’, to have regard at all times to the pursuit of the objects of the Environmental Planning and Assessment Act as set out in s 5. This involves, in appropriate cases, the evaluation of matters extending beyond the mere determination of the rights and matters in dispute between the immediate parties. It involves due weight being given to the public interest and the interests of other affected persons in the overall context of the pursuit of the objects broadly set out in s 5.”

Observations to similar effect are to be found in the judgments of Kirby P in both Warringah Shire Council v Sedevcic (1987) 10 NSWLR 335 at 339-341 and ACR Trading Pty Ltd v Fat-Sel Pty Ltd (1987) 11 NSWLR 67 at 82. The observations there made have, more recently, been endorsed by the Court of Appeal in Botany Bay City Council v Saab Corp Pty Ltd [2011] NSWCA 308; 183 LGERA 228 at [149]. In Sedevcic, Kirby P said at 339:

“In exercising the discretion, it must be kept in mind that the restraint sought is not, in its nature, the enforcement of a private right, whether in equity or otherwise. It is the enforcement of a public duty imposed by or under an Act of Parliament, by which Parliament has expressed itself on the public interest which exists in the orderly development and use of the environment [case citation omitted]. Because s 123 of the Act permits any person … to bring proceedings in the Court for an order to remedy or restrain a breach of the Act, there is indicated a legislative purpose of upholding, in the normal case, the integrated and co-ordinated nature of planning law. Unless this is done, equal justice may not be secured. Private advantage may be won by a particular individual which others cannot enjoy. Damage may be done to the environment which it is the purpose of the orderly enforcement of environmental law to avoid [case citation omitted].”

The remedial orders sought by the Council fall into two categories. The first involves those orders that are consequential upon the invalidity of each of the three complying development certificates issued by Mr Kayellou. The second category into which remedial orders sought by the Council fall are those directed to works having the consequence that the two storey addition to the existing dwelling is not constructed or adapted so as to be capable of use and occupation other than as a single dwelling.

Complying development certificates

In substance, the Council seeks an order that the height of the secondary dwelling be reduced to a maximum of 3.8m above ground level in accordance with plans to be approved by the Council prior to rectification works being undertaken. The reduction in height will achieve compliance with cl 9(2) of Sch 1 to ARH SEPP in that the building setback will then be compliant with the requirements of that clause.
Even if, contrary to my finding, CDC 3 was found to be valid, the Council has indicated that it would also seek a demolition order in substantially the same terms because the secondary dwelling has not been constructed in accordance with that certificate. I have no need to consider that matter further having found for the Council on the invalidity of CDC 3.
The Council also seeks an order that the garage attached to the secondary dwelling be demolished. If that is done, the setback of the secondary dwelling from the rear or northern boundary will be 3m and, assuming the height is also reduced to 3.8m, the secondary dwelling will then be compliant with cl 10(1) of Sch 1 to ARH SEPP.
In seeking demolition of the attached garage, the Council also draws attention to the manner in which the “workshop” has been finished with its gyprock walls and ceilings, downlights and built-in wardrobe, none of which were shown on the plans forming part of any CDC and all of which are consistent with the use of that room as a bedroom.
These remedial orders sought by the Council and directed to the secondary dwelling are not the consequence of merely technical breaches of the EPA Act. They are substantial breaches of ARH SEPP. They have impacts that have attracted not only the attention of the Council but also the attention of neighbours. Their environmental impact is the subject of evidence that is uncontradicted.
It is apparent that the proceedings have been brought in the public interest by the Council in seeking to uphold the integrity of the system of planning control laid down by the EPA Act. In the context of those principles that I have earlier identified directed to remedial orders, those orders seek to ensure that Ms Ramahi does not secure a private advantage by maximising the size and number of dwellings on the Land in a manner that contravenes the EPA Act.
Mr Rigg, on behalf of Ms Ramahi, submitted that she did not breach the EPA Act, nor did she cause any such breach as she was entitled to rely upon the certificates issued to her by Mr Kayellou. I have difficulty in accepting that submission.
First, as I have already recorded, Ms Ramahi did not call or tender any evidence in her case. The failure to do so is particularly relevant in light of the judgment of Preston CJ in Ramahi No 1. When hearing the application for leave to extend time to commence the proceedings, his Honour had before him the same evidence from the Council as has been read and tendered before me, supplemented before me by evidence that provides no basis upon which to sustain the argument that Ms Ramahi now seeks to advance. At [85] Preston CJ said:

“First, Ms Ramahi and her builder, UBA, bear primary responsibility for proposing and applying for the issue of a complying development certificate for development that was not complying development. Ms Ramahi, by her agent, UBA, proposed a secondary dwelling for the land that substantially breaches the development standards for floor area and side and rear setbacks under the applicable ARH SEPP. Ms Ramahi, by her agent, UBA, applied to a private certifier to have development that did not comply with these development standards, certified as complying development. It is true that Mr Kayellou, on no less than three occasions, did issue CDCs for development that was not complying development. However, that conduct does not absolve Ms Ramahi of responsibility for proposing and then carrying out development that was not and could not be complying development.”

Nothing in the evidence before me would necessitate any qualification to the reasoning of the Chief Judge which I respectfully adopt. Without being exhaustive of Ms Ramahi’s involvement, the evidence before me shows that:

each application submitted to Mr Kayellou for a complying development certificate bears the signature of Ms Ramahi;

following Mr Roche’s first inspection of the Land in May 2014, Mr Chamma was requested to stop work on the Land and appeared to have done so according to the site inspection by Mr Roche on 7 May;

by letter directed to Ms Ramahi in June 2014, she was told of the claimed invalidity of the CDCs, the remedial work required and a request that no further work relying upon those CDCs be carried out;

following a further inspection of the Land Ms Ramahi telephoned Mr Roche indicating her awareness of the Council’s concerns and stating that if there was an issue “we need to resolve it”;

work nonetheless continued on both the secondary dwelling and the addition to the existing dwelling;

solicitors acting for the Council wrote to Ms Ramahi in November 2014 stating that proceedings were to be commenced and inviting a response;

Ms Ramahi then signed a building certificate application relating to the roof on the secondary dwelling that had been constructed;

solicitors then acting for her requested that the Council refrain from commencing proceedings until the building certificate application had been determined;

notwithstanding refusal of the building certificate application, Ms Ramahi caused advertisements to be published on the Domain website, indicating the availability of “30 and 30A Virtue Street” for rent; and

in June 2015 Ms Ramahi entered into residential tenancy agreements for the separate letting of 30 and 30A Virtue Street.

The last two events occurred notwithstanding that the present proceedings had been commenced in late February 2015 and in which an appearance had been entered on her behalf in early April 2015.

I am satisfied on the evidence that Ms Ramahi worked closely with Mr Chamma, her builder and that she was aware from the outset of the requests made to him for building work to stop. As Preston CJ found in Ramahi No 1, Mr Chamma was her agent, a conclusion that Ms Ramahi did not attempt to dispel by adducing any explanatory evidence in her case. Moreover, in June 2014 she was told by letter addressed to her by the Council that building work should cease, identifying the roof and first floor storage space in the secondary dwelling as the reason for that request. There is no basis to infer that by proceeding with work after being requested to stop work, Mr Chamma or UBA did so, in order to indulge some frolic of their own. Not only did work proceed, the roof design was altered and, as constructed, did not comply with any complying development certificate issued by Mr Kayellou.
I reject the submission that Ms Ramahi was, in effect, the innocent victim of breaches committed by others, as a consequence of which she should not be visited with the obligation to comply with any remedial orders.
In further response to submissions made by Mr Rigg, I accept that to “carry out” development in contravention of s 76A of the EPA Act requires a positive act on the part of the person against whom breach is alleged; an omission to act will not suffice (North Sydney Council v Moline; North Sydney Council v Tomkonson (No 2) [2008] NSWLEC 169 at [24]). The potential liability of an owner of land to an order under s 124 of the EPA Act, where the activities of others are said to give rise to a breach of s 76A, was addressed by me in CTI Joint Venture Co Pty Ltd v CRI Chatswood Pty Ltd (in liq) (Receivers and Managers Appointed) (No 3) [2012] NSWLEC 6 where I said at [72]:

“While an owner of land to which a development consent relates will not, merely by the fact of ownership, be liable to an order under s 124 where breach has been demonstrated on the part of others, the role, if any, of the owner in relation to that breach is necessary to be considered in order to determine whether by its conduct or involvement in the breach it is susceptible to an order under s 124 (Wilkie v Blacktown City Council [2002] NSWCA 284; 121 LGERA 444; Hillpalm Pty Ltd v Heaven’s Door Pty Ltd [2004] HCA 59; 220 CLR 472 at [47]-48]). However, where the owner has participated in the conduct giving rise to the breach or taken advantage of the breach, that conduct would ordinarily be sufficient to render the owner susceptible to an order under s 124 (Wilkie at [42]).”

Those observations are apt to be applied in the present case.

For reasons already stated, I am comfortably satisfied that Ms Ramahi has participated in the conduct giving rise to the breach claimed by the Council. In that context, I respectfully adopt the observations that I have quoted from the judgment of Preston CJ in Ramahi No 1 at [85] as to the responsibility that Ms Ramahi bears for proposing and applying for a complying development certificate for development that was not complying development. She was clearly responsible for the conduct of UBA in carrying out building work on the Land (Moline at [24]).
By her conduct, it is clear that Ms Ramahi has taken advantage of the work carried out by UBA. By reason of both participation and advantage, she has carried out development in breach of s 76A(1) of the EPA Act.
Mr Rigg also submitted that no order should be made against Ms Ramahi because of the Council’s delay in commencing proceedings against her. He points not only to the period of time that elapsed between May 2014, when Mr Roche first inspected the Land and formed the view that the complying development certificates were invalid, and February 2015 when the proceedings were commenced. He also submitted that the Council could have, but did not, serve an order under s 121B of the EPA Act.
I do not find merit in those submissions. From the time of his first inspection, Mr Roche requested Mr Chamma to stop further work and gave reasons for that request. The request and the reasons for it were repeated orally and confirmed by letter addressed both to Mr Chamma and Ms Ramahi. Further, at the request of Ms Ramahi, through her then solicitor, the Council refrained from commencing proceedings while the building certificate application that she had submitted to Council was being considered.
Yet, despite the requests for work to cease and in the face of action threatened by the Council if that did not occur, building work on the Land proceeded. At all times, Ms Ramahi appeared to control access to the Land and therefore controlled the ability of her contractor to proceed with work. So to proceed involved Ms Ramahi taking the risk that all three complying development certificates were held to be invalid, as the Council contended, with the consequence that demolition or rectification works would be ordered. These are circumstances that weigh in favour, rather than against, the exercise of discretion to order the carrying out of remedial works.
For those same reasons, the fact that the Council did not give Ms Ramahi an order under s 121B cannot avail her in opposing the making of remedial orders. Nothing in the EPA Act or otherwise compels a council to issue such an order before invoking the Court’s jurisdiction under s 123 of the EPA Act to remedy or restrain breach. The history of actions pertaining to development on the Land between May 2014 and February 2015 favours the exercise of discretion to make remedial orders.

The two storey addition to the existing dwelling

The Council also seeks orders that Ms Ramahi carry out works to the existing dwelling and the two storey addition to it so that together that building can only be used as a single dwelling. Faced with the evidence given in respect of that building, Mr Rigg offered an undertaking that the building would not be used other than as a single dwelling. However, the recent history of the development upon the Land, particularly the failure of Ms Ramahi to stop work when requested so to do; the fencing of the Land in a manner that, for all practical purposes, divides it into three separate areas within each of which is a structure able to be used as a separate dwelling and the leasing of two of those three potential dwellings while the hearing of the present proceedings was pending, are all factors persuading me that both prohibitory and mandatory orders are required to be made in respect of that building.

Substance of orders to be made

I propose to make an order for the demolition of the roof of the secondary dwelling to the intent that it should comprise only a single storey with a maximum height of 3.8m above ground level, which height is to be measured to the topmost point of the roof. Plans must be prepared showing the altered building and be approved by the appropriate officer of the Council before rectification work begins. Once that approval is notified to Ms Ramahi, the work must be both commenced and completed within times to be stipulated by the order.
I also intend that an order be made against Ms Ramahi restraining her from using or permitting the use of the existing dwelling and the new addition to it, other than as a single dwelling. While I consider it unnecessary to require demolition of the first floor of that addition, the following works should be undertaken:

removal of the cupboards, benches, stove, sink and exhaust unit from the area described by Mr Roche as a kitchen in the two storey addition to the existing dwelling, being the area described on UBA Plan 003 Revision A dated 16 December 2013 as a “Bar”;

installation of a permanent internal staircase and opening between the existing dwelling and the two storey addition, generally as depicted on UBA Plan 003 Revision A dated 16 December 2013;

demolition and removal of the colorbond dividing fence separating the existing dwelling and the new two storey addition to that dwelling.

The order in respect of the addition to the existing dwelling must require that Ms Ramahi first provide a floor plan to the Council depicting the manner in which the room or rooms within the two storey addition have been adjusted so as to reflect the works to be completed in accordance with the orders that I propose. That plan must also be approved by the appropriate officer of the council before work begins. Once the approval has been given the works must be undertaken and completed within times to be stipulated in the order.

The proposed orders for all works to be undertaken by Ms Ramahi must allow for access to the Land by Council officers to inspect work to be carried out on at least two occasions: once after notice is given on behalf of Ms Ramahi that work has commenced following the approval of plans and again when Ms Ramahi or those carrying out work on her behalf notifies the Council that work has been completed in accordance with the plans that the Council has approved.
The detail to frame the mandatory orders that I contemplate, including the time by which steps that I have identified are to be taken, have not been provided in appropriate detail by the Council nor have the terms of proposed orders been addressed by Ms Ramahi. It is therefore appropriate that the Council frame draft orders consistent with my reasons and provide that draft to the respondents for consideration.
The declaratory orders I propose are, in substance:

a declaration that each of CDC 1, CDC 2 and CDC 3 have been issued in breach of the EPA Act and are thereby invalid;

a declaration that each of IOC 1 and IOC 2 have been issued in breach of the EPA Act and are thereby invalid;

a declaration that Ms Ramahi has carried out development without consent required by the EPA Act by constructing the two storey addition to the existing dwelling house in a manner that renders it capable of use as a separate dwelling, such declaration to be generally in the form of order 4 sought in the further amended summons filed on 26 October 2015; and

a prohibitory order is to be framed in the manner earlier discussed, directed to the use of the two storey addition to the existing dwelling house as a separate dwelling.

As I consider it appropriate to make all orders in the proceedings at the one time, I will refrain from making either declaratory or injunctive orders at the time of delivering this judgment. However, I propose that following an appropriate opportunity for draft orders to be exchanged and considered by the parties, the matter should be relisted before me so that final orders can be made.

Costs

The Council seeks an order that the respondents pay its costs of these proceedings. As the Council has been wholly successful in establishing breach of the EPA Act by both respondents and as declaratory and remedial orders are also proposed, my present view is that the Council is entitled to an order for costs in its favour (r 42.1 of the Uniform Civil Procedure Rules 2005 (NSW)). I would also propose that in making that order for costs, the respondents should be jointly and severally liable for the payment of those costs.
If the respondents wish to make any submissions against the costs order I propose, I will hear those submissions at the time at which the proceedings are listed for the making of final orders. Otherwise, an order for costs in the terms I propose should be included in the draft orders provided to me.

Orders

For the reasons that I have stated, the orders that I presently make are as follows:

Direct the parties to bring in agreed, or in the absence of agreement, competing short minutes of order reflecting my reasons for judgment.

Stand over proceedings to 9.00am on Thursday 21 April 2016 for the purpose of making final orders.

Direct that by 4.00pm on 20 April 2016 the parties provide to my Associate a draft of the short minutes of orders for which they contend.

*******

Amendments

08 April 2016 - Paras 13 and 109 formatting corrected

Decision last updated: 08 April 2016

Medium Neutral Citation:	Bankstown City Council v Ramahi (No 2) [2016] NSWLEC 34
Hearing dates:	30 November 2015, 2-3 December 2015
Date of orders:	08 April 2016
Decision date:	08 April 2016
Jurisdiction:	Class 4
Before:	Craig J
Decision:	1. Direct the parties to bring in agreed, or in the absence of agreement, competing short minutes of orders reflecting my reasons for judgment. 2. Stand over proceedings to 9.00am on Thursday 21 April 2016 for the purpose of making final orders. 3. Direct that by 4.00pm on 20 April 2016 the parties provide to my Associate a draft of the short minutes of orders for which they contend.
Catchwords:	ADMINISTRATIVE LAW - judicial review - ss 76A and 85A of the Environmental Planning and Assessment Act 1979 (NSW) ("EPA Act") - whether complying development certificates issued by accredited certifier for the erection of secondary dwelling valid - complying development within the meaning of cl. 23 of the State Environmental Planning Policy (Affordable Rental Housing) 2009 (NSW) (“ARH SEPP”) - whether it was reasonably open to certifier to conclude plans demonstrated compliance with the relevant provisions of the ARH SEPP - assessment of the standard of unreasonableness - misunderstanding of statutory obligation - certificates granted in breach of the EPA Act - right of occupation - validity of interim occupation certificate - s 109H(3) of the EPA Act – whether complying development certificate capable of founding exercise of power to issue interim occupation certificate - interim occupation certificate invalid - CIVIL ENFORCEMENT - declarations and remedial orders - breadth of Court’s discretion to grant relief under s 124 of the EPA Act - whether remedial action required to address breach - substantial breaches of the ARH SEPP - public interest - integrity of planning controls - responsibility of land owner where participated in the conduct giving rise to the breach or taken advantage of the breach - declaratory and remedial orders proposed.
Legislation Cited:	Building Professionals Act 2005 (NSW) Bankstown Local Environmental Plan 2001 Bankstown Local Environmental Plan 2015 Environmental Planning and Assessment Act 1979 (NSW) Environmental Planning and Assessment Regulation 2000 Standard Instrument (Local Environmental Plans) Order 2006 State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 State Environmental Planning Policy (Affordable Rental Housing) 2009 (NSW) Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited:	ACR Trading Pty Ltd v Fat-Sel Pty Ltd (1987) 11 NSWLR 67 Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 Avon Downs Pty Ltd v Federal Commissioner of Taxation [1949] HCA 26; 78 CLR 353 Bankstown City Council v Ramahi [2015] NSWLEC 74 Botany Bay City Council v Saab Corp Pty Ltd [2011] NSWCA 308; 183 LGERA 228 CTI Joint Venture Co Pty Ltd v CRI Chatswood Pty Ltd (in liq) (Receivers and Managers Appointed) (No 3) [2012] NSWLEC 6 D’Amore v Independent Commission Against Corruption [2013] NSWCA 187; 303 ALR 242 Hornsby Shire Council v Trives (No 3) [2015] NSWLEC 190 King v Bathurst Regional Council [2006] NSWLEC 505; 150 LGERA 362 Minister for Immigration and Citizenship v Li [2013] HCA 18; 249 CLR 332 North Sydney Council v Moline; North Sydney Council v Tomkinson (No 2) [2008] NSWLEC 169 R v Connell; Ex parte Hetton Bellbird Collieries Ltd (No 2) [1944] HCA 42; 69 CLR 407 Warringah Shire Council v Sedevcic (1987) 10 NSWLR 335 Trives v Hornsby Shire Council [2015] NSWCA 158; 89 NSWLR 268 Wollongong City Council v Vic Vellar Nominees Pty Ltd [2010] NSWLEC 266; 178 LGERA 445
Category:	Principal judgment
Parties:	Bankstown City Council (Applicant) Dianna Ramahi (First Respondent) Sam Kayellou (Second Respondent) Helal Wreida (Third Respondent) Ronell Yatim (Fourth Respondent) Ali Yatim (Fifth Respondent) Muhammad Wreida (Sixth Respondent)
Representation:	Counsel: J E Lazarus (Applicant) P R Rigg (solicitor) (First Respondent) M Mando (Second Respondent) Not applicable (Third Respondent) Submitting appearance (Fourth, Fifth and Sixth Respondents) Solicitors: Lindsay Taylor Lawyers (Applicant) Peter R Rigg Solicitors (First Respondent) Legal Edge Australia (Second Respondent) Not applicable (Third Respondent) Peter R Rigg (Fourth, Fifth and Sixth Respondents)
File Number(s):	40150 of 2015