Burwood Council v Hanna Elias

[1999] NSWLEC 107

Land and Environment Court

of New South Wales

CITATION:

Burwood Council v Hanna Elias [1999] NSWLEC 107

PARTIES

APPLICANT
Burwood Council

RESPONDENT
Mr Hanna Elias

NUMBER:

40201 of 1998

CORAM:

Cowdroy A J

KEY ISSUES:

:- development consent - breach of conditions - order for removal of sanitary plumbing installed in breach of conditions of consent.

LEGISLATION CITED:

development consent - breach of conditions - order for removal of sanitary plumbing installed in breach of conditions of consent.

DATES OF HEARING:

02/09/1999; 02/26/1999; 04/08/1999; 05/04/1999

DATE OF JUDGMENT DELIVERY:

05/04/1999

LEGAL REPRESENTATIVES:

APPLICANT
Mr A J Mitchelmore

SOLICITORS
John Corcoran & Co

RESPONDENT
In Person

SOLICITORS
n/a

JUDGMENT:

Facts

1. Burwood Council (“the council”) seeks a declaration that certain sanitary plumbing constructed along the external western face of the brick work of the cottage known as Linthorn Avenue, Croydon Park breaches Condition 14 of the building approval granted by the Council to the respondent. The council seeks consequential orders requiring the removal of such work. At the site there was an old single storey double brick cottage. The respondent lodged an application to erect a first floor addition to the premises on 27 March 1996. Such application was refused following numerous objections. Subsequently on 2 September 1996 a second application was lodged (No. 156/96) for the erection of a brick veneer first floor addition and alterations to the cottage in accordance with certain plans and specifications. The proposed additions included construction of two bedrooms, bathroom, living area, verandah and provided alterations essentially to the rear of the ground floor.

2. In respect of application No. 156/96, 28 objections were received by the council. On 8 October 1996 council approved the application subject to 22 conditions. Condition 14 thereof provided as follows:-

“All sanitary plumbing being concealed in suitably enclosed ducts. Such ducts to be constructed internally (i.e. not on the outside face of an external wall) and in accordance with the provisions of the Metropolitan water, Sewerage and Drainage Act.”


3. The respondent engaged the services of a builder, Mr Eric Platt. According to the evidence of Mr Platt, he observed prior to the commencement of construction that the provision of internal plumbing would be very difficult and he discussed this with the respondent. He also testified that he was not aware of the specific condition required by council as set out in Condition 14. Accordingly he proceeded to execute the building works and the sanitary plumbing was installed on the exterior walls of the dwelling. During the course of construction, council’s building inspector conducted several inspections of the work. Due to the nature of the work it was not apparent on inspections that the sanitary drainage would be placed on the external walls of the building. The plans and specifications did not make any reference to the location of the sanitary drainage pipes, and the inspector was apparently not alerted to any potential problem.

4. On 2 May 1997 the council received a letter of complaint from the owners of the adjoining cottage known as 42 Linthorn Avenue, Croydon Park. The complaint drew the attention of the council to the failure of the respondent to comply with Condition 14 and reported that the sanitary drainage had been constructed in thick white PVC piping which looked unsightly from their residence and also from the street. The letter also expressed concern that the noise of running water could be heard when a tap was turned on or the toilet was flushed. They requested the council to take action forthwith to have the pipes removed.

5. On 5 May 1997 Mr David Keith Ollivier, Senior Health and Building Surveyor inspected the site. He expressed his opinion in court that so far as he was concerned, the pipes could remain in their external position. Mr Ollivier held the delegated authority of the council to waive any requirement such as Condition 14 of the building approval. At the time he expressed his view to the respondent that compliance would not be required. Such opinion was reached following the inspection of the building and his conclusion that major work would be needed to alter the plumbing to comply with Condition 14 and such works could raise concerns for the structural integrity of the existing building. Mr Platt, in a letter dated 8 May 1997 addressed to Mr Ollivier, set out in detail the reasons which led to the external installation of the sanitary drainage. In addition to structural issues he stated that piping would, if located internally, contravene the regulations of Sydney Water and it would also be impractical to provide inspection access in the pipe.

6. Mr Ollivier carefully considered the issues and took into account the obvious non-compliance with the council’s conditions. In his report to the Approvals Committee of Council dated 3 June 1997 he expressed the recommendation that the pipework should be allowed to remain if painted in a terracotta colour to disguise it.

7. On 3 June 1997 the Approvals Committee met after inspecting the site and determined to require compliance with the conditions. The respondent was so advised. Following this the respondent was given the opportunity to address the council to no avail.

The Evidence

8. The affidavit evidence produced by the council establishes that Condition 14 had been breached. The evidence also establishes that the respondent, prior to the work being undertaken, was aware that internal plumbing would be unsightly and rejected such proposal. He did not seek at that stage any review of the condition from the council as he ought to have done.

9. The evidence of the council suggested that council had a policy of requiring all external sanitary plumbing to be concealed in suitably enclosed ducts and constructed internally. Such policy however appears not to have been enforced. The respondent produced photographs and a video of seven other building sites in the municipality where there was two storey development of apparent recent construction which has external sanitary plumbing. Some of the building sites shown on the video and photographs were obviously still under construction.

10. The adjoining owner complains that the external drainage pipes are unsightly and when the windows to the rooms on the eastern side of their premises namely their lounge room, study and bathroom are open, water can be heard flowing through the respondents sanitary drainage pipes. Such pipes have clearly been installed in disregard for Condition 14 of the building consent.

11. The inference can be drawn that even if he did not appreciate the requirement of Condition 14, the respondent was not prepared in any event to have the sanitary drainage pipes installed internally in view of the aesthetic problems. In view of his failure to seek a variation of Condition 14 prior to the commencement of work, the problem which has been created is one entirely of his own making.

Legal Principles

12. The council was entitled to expect that the conditions which it attached to the building consent in the interests of the municipality be satisfied. The respondent has no defence to the claim of the council in respect of the declaration sought in paragraph 1 of the application. The only possible defence which the respondent could have raised was the issue of whether a waiver or estoppel had been created by virtue of the opinion expressed to the respondent by Mr Ollivier. However, such doctrine does not assist the respondent since he has not relied, to his detriment, upon anything said by Mr Ollivier. The whole of the works were complete at the date of the visit by Mr Ollivier to the site and accordingly there is no basis for the application of the doctrine of estoppel.

The Relief

13. The council has established its entitlement to the declaration sought. However, the court is entitled to consider whether as a matter of discretion, the respondent should be required to remove the offending sanitary drainage system. In the circumstances the court notes the substantial and practical difficulties which will be involved if the pipes are required to be installed internally in the dwelling. Having given consideration to this issue, the court adjourned in the hope it may have been possible for the council and the respondent to reach a mutually acceptable solution. Unfortunately this did not produce a result which was satisfactory to council and accordingly the court should exercise its jurisdiction. In doing so the court notes that the respondent has offered to conceal the larger sanitary pipe within the external wall of his house so that it will be disguised. However, he did not offer to provide the same treatment for a smaller pipe. It seems if such work can be undertaken for the larger pipe, similar treatment could be provided to the smaller pipe. It should be possible to construct a suitable stack and covering around such pipes so that they are concealed and suitably soundproofed without the necessity to alter the plumbing. Modern building materials are available such as brick facing, which could be applied to encase the plumbing and give the appearance that it was behind the external wall of the building. Such a solution would, in the circumstances, be adequate compliance with the court’s orders and if there be any further dispute between the council and the respondent concerning the matter, it can be referred back to this Court.

Orders

14. The court makes the following orders:-

1. If within a period of three months from this date all of the sanitary plumbing on the external wall at premises 40 Linthorn Avenue, Croydon Park is not concealed in the external wall of such residence, the sanitary plumbing is to be removed therefrom. 2. The respondent pay the applicant’s costs. 3. Liberty to apply to the court to either party for any further order as may be required.