Canterbury City Council v Mihalopoulos

[2010] NSWLEC 248

Land and Environment Court

of New South Wales

CITATION:

Canterbury City Council v Mihalopoulos [2010] NSWLEC 248

PARTIES:

APPLICANT
Canterbury City Council

FIRST RESPONDENT
Basilios Mihalopoulos

SECOND RESPONDENT
Amanda Mihalopoulos

FILE NUMBER(S):

40694 of 2010

CORAM:

Pepper J

KEY ISSUES:

CIVIL ENFORCEMENT :- unapproved building undertaken during construction of residential dwelling - respondents repeatedly notified by council of unapproved nature of works - exercise of discretion - whether to make declaration and order unlawful building works to be demolished - order made

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979 ss 76A(1)(b), 124

CASES CITED:

ACR Trading Pty Ltd v Fat-Sel Pty Ltd (1987) 11 NSWLR 67
Glaser v Poole [2010] NSWLEC 143
Tynan v Meharg and Newcastle City Council [1998] NSWSC 592
Warringah Shire Council v Sedevcic (1987) 10 NSWLR 335
Willoughby City Council v Dasco Design and Construction Pty Ltd [2000] NSWLEC 257; (2000) 111 LGERA 422

DATES OF HEARING:

30 November 2010

EX TEMPORE JUDGMENT DATE:

30 November 2010

LEGAL REPRESENTATIVES:

APPLICANT
Mr M Wright
SOLICITORS
Marsdens

FIRST RESPONDENT
No appearance
SOLICITORS
N/A

SECOND RESPONDENT
Submitting appearance
SOLICITORS
APJ Law

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

PEPPER J

30 November 2010

40694 of 2010 Canterbury City Council v Basilios Mihalopoulos and Amanda Mihalopoulos

EX TEMPORE JUDGMENT

Introduction

1 HER HONOUR: In these proceedings, Canterbury City Council (“the council”) seeks orders against each of the respondents pursuant to s 124 of the Environmental Planning and Assessment Act 1979 (“the EPAA”) for the demolition of unapproved building works arising out of the unlawful development carried out at 31 Clarke Street, Earlwood being Lot 3 in DP 10367 (“the premises”).

2 The development is contrary to development consent DA 252/2007 granted by the council on 14 September 2007 (“the development consent”), as modified by the council in DA 252/2007/C on 30 October 2008 (“the modified development consent”).

3 The carrying out of the unlawful works constitutes a breach of s 76A(1)(b) of the EPAA.

4 The first respondent, Mr Basilios Mihalopoulos, was formerly represented by McKees Legal Solutions, but that firm ceased to act on 3 November 2010.

5 The second respondent, Ms Amanda Mihalopoulos, filed a submitting appearance on 26 November 2010.

6 The respondents are the registered proprietors of the premises.

7 No points of defence or evidence has been filed by either respondent.

8 Having regard to the evidence filed by the council in these proceedings and the circumstances of the case it is appropriate that the Court grant a declaration to the effect that the construction has been carried out contrary to the provisions of the EPAA and order that the respondents demolish, remove and remediate the unlawful works.

Ex Parte Proceedings

9 When the matter came before the Court for hearing, there was no appearance by Mr Mihalopoulos notwithstanding that the matter was called three times outside the Court.

10 A bundle of affidavits of service relied upon by the council demonstrated that a letter dated 14 October 2010 was served on Mr Mihalopoulos at the premises. The contents of the letter confirmed that the matter was listed for hearing on 30 November 2010. The last sentence of the letter stated that, “If you fail to appear in the Land and Environment Court on 30 November 2010 then the Court will make orders in your absence.”

11 Oral evidence was also given of Mr Peter Ajaka on behalf of the council to the effect that when he last inspected the premises on 20 October 2010, Mr Mihalopoulos had been in attendance during the inspection and had stated to him that he was residing at the premises, albeit in the capacity of a lessee.

12 The Court was therefore satisfied that Mr Mihalopoulos had been given notice of the date of the hearing of the proceedings. His failure to appear resulted in the proceedings being heard ex parte.

Environmental Instruments

13 The premises are located wholly within the residential zone 2(a) of the Canterbury Planning Scheme Ordinance (“the PSO”). Pursuant to cl 22 of the PSO dwellings, alterations and additions to dwellings are permissible with development consent.

The Unlawful Development

14 The unlawful development consisted of:

(a) the construction of the masonry wall 1.8 m high along the eastern boundary, instead of a retaining wall varying in height between 0 mm to 350 mm and upon which should have been constructed a 1.8 m high timber fence;

(b) the construction of the landing leading from the laundry on the eastern side of the new dwelling and the failure to construct stairs in accordance with approved plan no A301C;

(c) the construction of a garbage bin enclosure on the north eastern boundary of the premises beyond the height permitted by the approved plans, requiring the removal of sufficient masonry courses to bring the enclosure back to a height of no greater than 1.2 m above the footpath level;

(d) the construction of a terraced landscape planter bed on top of the entrance to the garage at the rear of the premises, three terraced landscape beds adjoining the garage entrance and the failure to construct two terraced landscape planter beds at the height and dimensions identified in the approved plans; and

(e) the construction of a balcony on the main first floor of approximately 4 m in depth when the conditions of consent permitted a balcony not exceeding a depth of 1 m.

Factual Background and Chronology

15 The factual background giving rise to these proceedings was set out in the affidavit evidence of two council witnesses. First, Mr Peter Ajaka, a Development Assessment Officer – Building who was employed by the council, sworn 30 August and 21 October 2010. Second, an affidavit of Mr William Kazaglis, sworn 20 October 2010. Mr Kazaglis is the son of the owner of the adjoining property to the east of the premises.

16 On 11 May 2007, Mr Mihalopoulos sought development consent for the demolition of an existing dwelling and garage and the construction of a new two storey dwelling, including a basement garage and an in-ground swimming pool.

17 By notice of determination dated 14 September 2007, the council granted conditional development consent to the development application. The conditions of the consent relevantly provided that:

6. The development being carried out in accordance with the plans, specifications and details prepared by Tony Owens, dated 19 July 2007, marked Drawing Plan A200 C-A501 C, as received by Council on 31 July 2007, except where modified by conditions specified in this Notice, and the following specific conditions:

6.1 The northern elevation balcony associated with the Master Bedroom be reduced in depth to no more than 1 metre.

6.2 The masonry wall and pedestrian access gates addressing Clarke Street be reduced in height to no more than 1.2 metres above footpath level

6.3 The swimming pool be setback 1m from the western property boundary.

18 On 15 November 2007, the respondents applied to modify the consent for “modification to basement storage”.

19 On 20 December 2007, the council granted a modification application, DA 252/2007/A for “modification to amend the layout of the approved basement storage area and increase by 3 m”.

20 As a consequence of the approved modification, condition 6 of DA 252/2007/A was amended to:

6. The development being carried out in accordance with the plans, specifications and details prepared by Tony Owen, dated 19 July 2007, marked Drawing Plan A200C – A501C, as received by Council on 31 July 2007, except for amended by changes shown clouded on plan nos. A202D and A400D prepared by Tony Owen dated 22 October 2007 as received by Council on 14 November 2007 except where modified by conditions specified in this Notice, and the following specific conditions:

6.1 The northern elevation balcony associated with the Master Bedroom be reduced in depth to no more than 1m.

6.2 The masonry wall and pedestrian access gates addressing Clarke Street be reduced in height to be no more than 1.2m high above footpath level.

6.3 The swimming pool be set back 1m from the western property boundary.

21 However, on or about 16 May 2008, the council became aware, by reason of a complaint from Mr William Kazaglis, that a 1.8 m high masonry wall had been constructed on the eastern boundary of the premises otherwise than in accordance with the development consent.

22 On 26 June 2008, the council received notification of a letter from the respondents’ principal certifying authority to Mr Mihalopoulos directing him to demolish the masonry wall.

23 On 13 July 2008, Mr Kazaglis complained to the council about the construction of a balcony adjoining the master bedroom on the second storey of the dwelling on the premises.

24 On 30 October 2008, the council approved modification application DA 252/2007/C for “modification to the approved dwelling house to construct an awning over the front door, install rooftop air conditioning units, install a gate in the rear fence, amend the pool surround and replace the western timber boundary fence with a masonry wall”.

25 As a consequence condition 6A was incorporated into the consent. It provided that:

6A The development being carried out in accordance with the plans, specifications and details nominated in Conditions 6, 6.1, 6.2, and 6.3 of Development Consent DA-252/2007/A dated 20 December 2007 as amended by the changes shown on the plans prepared by Tony Owen, dated 31 July 2008, marked Drawing Plans A200, A203, A300, A301 and A400 Issue E as received by Council on 4 August 2008 except for the changes to the eastern boundary fence, the stairs within the eastern side setback, the garbage bin enclosure at the front of the site and the terraced planter beds at the rear of the site.

26 On 21 November 2008, Mr Ajaka from the council inspected the premises. Mr Mihalopoulos was present during the inspection.

27 On 11 February 2009, a modification application was submitted to the council seeking approval for “changes to approved plans”, namely, “bin enclosure, masonry wall along eastern boundary, planters, laundry access stairs and first floor balcony”. On 8 April 2009, this modification application was refused by the council.

28 On 4 September 2009 the council wrote to Mr Mihalopoulos requesting that the unauthorised building works be demolished and removed. It was this request that appears to have prompted the subsequent application to further modify the development consent, which was refused by the council.

29 Subsequently, on 12 October 2009, a further modification application was submitted to the council. Approval was again sought to amend the conditions of consent relating to “garden bin enclosure, masonry wall along the eastern boundary, landscaped terrace planters, external laundry access stairs and first floor balcony”. Again, the council refused this modification application on 15 December 2009.

30 Thereafter between February and March 2010 correspondence passed between the council and Mr Mihalopoulos concerning the unapproved building. In particular, in early February 2010 the council wrote to Mr Mihalopoulos requesting that the unauthorised building works be demolished and removed. A response was received by letter dated 17 February 2010 from McKees Legal Solutions, stating that Mr Mihalopoulos would make an application pursuant to s 82A of the EPAA in respect of the refusal by the council on 15 December 2009 to approve the modification application dated 12 October 2009. Mr Ajaka reviewed the council’s files concerning the premises and could find no record of any such application.

31 On 5 July 2010, Mr Ajaka attended the properties adjoining the premises for the purpose of making observations and taking photographs.

32 On 18 August 2010, the council’s solicitors wrote to the respondents personally seeking undertakings that the unauthorised works would be removed. No such undertaking was given.

Evidence of the Council

Mr Ajaka

33 Mr Ajaka’s evidence consisted of a procedural history of the modified development consent and subsequent applications by the respondents for modification of that modified development consent. He also gave evidence of his observations of the breaches of the modified development consent. Exhibited to his affidavits were the relevant planning instruments, development applications (including modification applications), council decisions, approved plans, correspondence passing between the council and the respondents and photographs of what he observed during his inspections of the premises.

34 On 21 November 2008, Mr Ajaka attended the premises and undertook an inspection of the premises. During this inspection he observed unauthorised building work. Photographs of these works were taken by Mr Ajaka and were exhibited to his affidavit sworn 30 August 2010.

35 A further inspection of the premises on 5 July 2010 by Mr Ajaka revealed that the unlawful construction remained. Accordingly, in July 2010 the council again wrote to the respondents providing them with one further opportunity to remove the unauthorised building works. The letter stated that if the parties could not reach agreement in respect of those works then the council would commence proceedings in the Court.

36 Attached to Mr Ajaka’s affidavit sworn 21 October 2010 were a number of photographs of the unlawful building that he had observed when he inspected the premises on 20 October 2010.

37 As at the date of Mr Ajaka’s later affidavit the unauthorised building works have not been removed or demolished, although with respect to the garbage bin enclosure, a new footpath had been constructed.

Mr Kazaglis

38 Mr Kazaglis is the son of Mrs Christina Kazaglis, the owner of the adjoining property at 29 Clarke Street, Earlwood. Mrs Kazaglis is 91 years old and had, until very recently, resided at this property for over 60 years.

39 Mr Kazaglis stated that since 2000 he had visited his mother on average two times a week at her home. Mr Kazaglis has dealt with his mother’s personal and financial business for the past two decades and has power of attorney generally over her affairs.

40 He stated that the construction of the masonry wall along the entire length of the eastern boundary on the premises has created an undesirable impact on his mother’s property. In addition to the general unsightly nature of the wall, there are a number of reinforced steel rods protruding from the foot of the wall which appeared dangerous. Further, the wall is not in keeping with the other fences on Clarke Street and detracts from the appearance of his mother’s house. In addition, the height of the wall has impeded the flow of natural light into his mother’s bedroom, lounge room, dining room and kitchen. Finally, it is Mr Kazaglis’ observation that there is a lower circulation of air in these rooms when the windows are open.

41 Mr Kazaglis stated that the concrete pathway leading from the laundry at the premises has also created an undesirable impact on the amenity of his mother’s property. This is because the raised concrete pathway permits any person walking upon it to look down into his mother’s property. As a consequence, his mother drew the curtains in her house most of the time in order to maintain her privacy. There was also an adverse acoustic impact created by the pathway because conversations could clearly be heard by people walking along the raised concrete pathway.

42 Thus the visual and acoustic intrusion has impacted on Mr and Mrs Kazaglis’ enjoyment of the rear of Mrs Kazaglis’ property, particularly during the spring and summer months.

43 In addition, Mr Kazaglis gave evidence of the adverse impact that the balcony adjoining the master bedroom has had on his mother’s property and the construction of the additional landscaped planter beds at heights greater than those approved. With respect to the latter, water from these beds has drained onto his mother’s land which has resulted in chronic dampness after normal rain events.

44 Mr Kazaglis indicated that the erection of further privacy screening on the top of the masonry wall would be a poor solution because it would exacerbate the appearance of the excessive height of the wall and augment the existing problems with respect to the diminution of the natural light and air circulation in his mother’s home.

45 With leave, Mr Kazaglis gave oral evidence to the effect that as at the date of the hearing his mother was not currently residing at her property. This was because as a result of contracting a urinary tract infection she had been hospitalised and while having largely recovered from that illness, she continued to recuperate at a nursing home due to her general immobility. Mr Kazaglis, however, indicated that it was his mother’s desire and intention that she return to her property to reside.

46 The council also tendered a letter dated 4 November 2009 written by Mr Kazaglis, which attached photographs and a marked-up plan depicting not only the unapproved scale and nature of the masonry wall, but also its impact on the amenity of his mother’s property. From these photos and the marked-up plan, the unlawfulness of the construction of the masonry wall and associated footpath became abundantly evident. So too did the adverse effect of the unapproved building on Mrs Kazaglis’ property.

The Development is Unlawful and Should be Removed

47 The Court has a broad discretion enabled by s 124 of the EPAA to grant relief in civil enforcement proceedings where there is a breach of that Act.

48 The Court’s power to grant or refuse relief is wide and is largely unfeterred (Warringah Shire Council v Sedevcic (1987) 10 NSWLR 335 at 339-341 per Kirby P, ACR Trading Pty Ltd v Fat-Sel Pty Ltd (1987) 11 NSWLR 67 at 82 and Tynan v Meharg and Newcastle City Council [1998] NSWSC 592). The guidelines for the exercise of discretion articulated in Sedevcic include whether the breach is merely technical (although the discretion may be exercised in any event), whether there was delay in commencing proceedings by the council and whether the breach complained of had a beneficial effect on the environment.

49 The discretion is concerned with the enforcement of a public duty imposed or under an enactment of Parliament, namely, the EPAA. This is because if exceptions to compliance with the EPAA are sanctioned then its orderly enforcement is undermined (Glaser v Poole [2010] NSWLEC 143 at [60]).

50 Turning to the guidelines articulated in Sedevcic, the following findings may be made on the current evidence:

(a) the works complained of were undertaken by the respondents without the required development consent and in circumstances where the respondents had been notified that consent was required but had not been granted;

(b) given the scope and scale of the works as demonstrated by the evidence of Mr Ajaka and Mr Kazaglis, it cannot be said that the breach of the Act amounts to a mere technicality;

(c) the impact of the unapproved construction on the privacy and amenity of Mrs Kazaglis’ property is significant. It cannot be meaningfully ameliorated by, for example, the erection of a privacy screen;

(d) the conduct of the respondents is a relevant consideration ( Willoughby City Council v Dasco Design and Construction Pty Ltd (2000) 111 LGERA 422 at [77] and Glaser v Poole at [68]) and in this regard, the respondents, and in particular Mr Mihalopoulos, acted in flagrant disregard for the law with the knowledge - given the council’s refusal to approve any further modifications to the development consent it had granted - that the construction undertaken was unapproved and unlawful. There is no evidence to suggest that the respondents acted merely carelessly or mistakenly;

(e) conversely, there is nothing to suggest that Mrs Kazaglis should be denied, albeit through the council, relief from the adverse impacts of the unlawful development;

(f) it is also clear from the refusals to grant any further modification approvals that the council would be highly unlikely to consent to any development application, assuming one were made, regularising the unlawful construction; and

(g) although it is self evident from the evidence given on behalf of the council and having regard to the scope of the unapproved works that the impact of any demolition orders made by the Court will not be insignificant, this factor alone is, given the circumstances of this case, insufficient to repel a demolition order.

Conclusion and Orders

51 In summary, based on the evidence presented by the council and having regard to the factors discussed above, I have no hesitation in determining, first, that the construction works the subject of these proceedings are unlawful, second, that the declaratory relief sought by the council ought to be made, and third, that an order for demolition should be issued.

52 The Court therefore makes the following orders:

(1) a declaration that the following structures have been erected upon the land known as Lot 3 in DP 10367, 31 Clarke Street, Earlwood (“the premises”) otherwise than in accordance with development consent DA252/2007 granted by the applicant on 14 September 2007 (“the development consent”) and as modified by the applicant in DA252/2007/C on 30 October 2008 (“the modified development consent”) contrary to the provisions of the Environmental Planning and Assessment Act 1979:

(a) a masonry wall up to 1.8 m in height along the entire length of the eastern boundary of the premises;
(b) a raised concrete pathway leading from the laundry to the front and rear of the premises along the eastern boundary of the land;
(c) a masonry garbage bin enclosure 1.8 m in height above the level of the footpath on the north-eastern boundary of the premises;
(d) four (4) terraced masonry landscape planter beds adjoining and on top of the garage at the rear of the premises; and
(e) a balcony adjoining the master bedroom on the second storey of the dwelling on the premises 5 m wide and 4 m deep;
(2) an order that the respondents carry out or cause to be carried out within thirty (30) days of the date of the order the demolition and removal of:
(a) the masonry wall along the eastern boundary of the premises;
(b) the raised concrete pathway leading from the laundry to the front and rear of the premises along the eastern boundary of the premises;
(c) the roof of the garbage bin enclosure and the courses of masonry on the walls forming the top 0.6 m of the garbage bin enclosure on the north-eastern boundary of the premises;
(d) the masonry landscape planter bed on the roof of the garage at the rear of the premises;
(e) the three (3) terraced masonry landscape planter beds adjoining the garage at the rear of the premises; and
(f) that part of the balcony adjoining the master bedroom on the second storey of the dwelling on the premises that is constructed at a depth greater than the approved depth of 1 m;
(3) an order that the respondents carry out or cause to be carried out within sixty (60) days of the date of the order the construction of:
(a) a retaining wall along the eastern boundary of the premises commencing at 350 mm in height at the rear or northern boundary of the premises reducing to 0 mm in accordance with the plans the subject of the development consent and modified development consent;
(b) a new timber fence 1.8 m in height on top of the retaining wall and along the entire eastern boundary of the premises in accordance with the plans the subject of the development consent and modified development consent;
(c) a 2.5 m wide landing from the entrance of the laundry on the eastern side of the dwelling, four (4) steps to RL49.79 on the southern side of the landing, three (3) steps to RL50.00 on the northern side of the landing and a concrete pathway from the steps to the rear of the dwelling at a level of RL50.00 in accordance with the plans the subject of the development consent and modified development consent;
(d) a corrugated metal roof over the garage in accordance with the plans the subject of the development consent and modified development consent; and
(e) two (2) terraced masonry landscape planter beds adjoining the garage at the rear of the premises with the highest terrace being no higher than RL51.68 in accordance with the plans the subject of the development consent and modified development consent;
(4) an order that the respondents pay the applicant’s costs of the proceedings. Such order stayed for a period of seven (7) days. If either respondent seeks any alternative costs order he or she is to make such application to the Court by notice of motion, together with any affidavit evidence in support, by 7 December 2010; and
(5) the exhibits be returned.


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