Chami v Lane Cove Council - [2015] NSWLEC 1003

Land and Environment Court

New South Wales

Amendment notes

Medium Neutral Citation: Chami v Lane Cove Council [2015] NSWLEC 1003
Hearing dates: 14, 15, 18, 20 - 22 August; 14 and 15 October; 14, 19 - 21 November (written submissions in reply – 24 November)
Decision date: 23 January 2015
Jurisdiction: Class 1
Before: Moore SC
Decision:
Findings to set out a schedule of works (Schedule 1) that are necessary to be undertaken prior to any issuing of a building certificate. The matter is adjourned until 27 July 2015 to permit the applicant to give effect to Schedule 1 to this decision. Directions are set out at the conclusion of the reasons for decision to provide an appropriate procedural regime to be followed to permit finalisation of this matter at a resumed hearing commencing on 27 July 2015.

Catchwords: BUILDING CERTIFICATE: process for determining appeal; works required to render issuing a certificate appropriate
DEVELOPMENT MERITS: structural adequacy; amenity impacts on neighbouring property – overlooking, overshadowing, acoustic impact; bulk and scale
REMEDIES: reasonableness; proportionality
PRACTICE AND PROCEDURE: representation by an agent
Legislation Cited: Civil Procedure Act 2005
Environmental Planning and Assessment Act 1979
Evidence Act 1995
Land and Environment Court Act 1979
Land and Environment Court Rules 2007
Lane Cove Local Environmental Plan 1988
Lane Cove Local Environmental Plan 2009
Lane Cove Development Control Plan 1988
Lane Cove Development Control Plan 2009
State Environmental Planning Policy (Exempt and Complying Development Codes) 2008
Uniform Civil Procedure Rules 2005
Cases Cited: Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223
Botany Bay City Council v Premier Customs Services Pty Ltd [2009] NSWCA 226; (2009) 172 LGERA 338
Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336
Griffis and anor v Tweed Shire Council [2011] NSWLEC 1126
Jonah v Pittwater Council [2006] NSWLEC 99, (2006) 144 LGERA 408
Kouflidis v Salisbury City Corp (1982) SASR 321; (1982) LGRA 17
Ireland v Cessnock City Council [1999] NSWLEC 153; (1999) 103 LGERA 285
Ireland V Cessnock City Council [1999] NSWLEC 250; (1999) 110 LGERA 311
Lord v Manly Council [2010] NSWLEC 1223
Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705
Mineral Wealth Pty Ltd v Gosford City Council [2003] NSWLEC 153; (2003) 127 LGERA 74
Minister for Immigration and Citizenship v Li [2013] HCA 18
Moto Projects (No 2) Pty Ltd v North Sydney Council [1999] NSWLEC 280; (1999) 106 LGERA 298
Ross v Lane Cove Council [2012] NSWLEC 1364
Ross v Lane Cove Council [2014] NSWCA 50
Segal & Anor v Waverley Council [2005] NSWCA 310; (2005) 64 NSWLR 177
Sullivan v Civil Aviation Safety Authority [2014] FCAFC 93
Taipan Holdings Pty Ltd v Sutherland Shire Council [1999] NSWLEC 276
Thrasyvoulou v Secretary of State for the Environment [1990] 2 AC 273
Windy Dropdown Pty Ltd v Warringah Council [2000] NSWLEC 240
Zhang v Canterbury City Council [2001] NSWCA 167; (2001) 51 NSWLR 589; (2001) 115 LGERA 373
Texts Cited: The Doctrine of Res Judicata, Spencer Bower, Turner and Handley, 3rd Edition
The Doctrine of Res Judicata, Spencer Bower, Turner and Handley, 4th Edition, LexisNexis 2009
Category: Principal judgment
Parties: S Chami (Applicant)
Lane Cove Council (Respondent)
Representation:
Counsel:
Mr R Ross, agent (Applicant)
Mr N Eastman, barrister (Respondent)
Solicitors:
N/A (Applicant)
Pikes & Verekers Lawyers (Respondent)

File Number(s): 10398 of 2014

Judgment

Introduction

SENIOR COMMISSIONER: Bayview Street at Northwood is the final element of a double dogleg cul-de-sac street system. Bayview Street’s final section rises at a moderate slope in a generally north-north-westerly direction. At its end, on the high (eastern) side of the street, is located a residential property that has undergone extensive additions and alterations in the last few years - extensive additions and alterations that remain incomplete. This property is 8 Bayview Street (the site).
As described in more detail later, although these additions and alterations were carried out after the granting in 2008 of Development Consent DA 325/07 (the 2008 development consent) by Lane Cove Council (the Council), that which has been built varies in many respects from that which was approved by the Council. Those variations range in scale from the minor (such as additional built-in cupboards) through to major elements (such as the relocation of an internal stairwell providing access from the middle to the uppermost level of the dwelling and the consequent creation/expansion of rooms).
The site slopes significantly down toward the street and would have had, in its natural state prior to the erection of the original dwelling, a cross slope down from left to right when faced from the street. Although the allotment is not oriented in a strictly east - west direction, as is conventional in plans and their interpretation in proceedings such as this, the various aspects are designated to the four cardinal points of the compass in order to be able to understand that which is described concerning what has or is proposed to take place on the allotment. In these circumstances, the street frontage is thus designated as being to the west with the other three relevant designations flowing from that notional orientation.
The surrounding residences are of varying ages and styles ranging from several that are comparatively modern through to the neighbouring dwelling to the south - one that would appear to be from the mid-20th century (but with substantial additions and modifications to its original form). As a consequence, the streetscape at the head of the cul-de-sac in Bayview Street can best be described as eclectic and diverse.
Although nothing in particular turns on it, the absence of a turning circle at the head of the cul-de-sac has made it possible for a second vehicle footpath crossing to be installed on the frontage of the site with both such crossings on the site’s frontage being parallel to the front boundary fence on the site. At the present time, the southern of those footpath crossings is used as a driveway to access the single vehicle garage constructed in a semi-basement style under the northern edge of the front facade of the dwelling on the site.
The more northern of the two footpath crossings presently provides access to a pathway along the northern side of the dwelling. The pathway provides access to the front door of the dwelling and, beyond the front door to an area adjacent to the line of the northern facade of the dwelling, which area, at the time of the site inspection, had had pavers laid out in a spaced fashion indicating the locations at which they might be proposed to be installed but were not, yet, so installed.
Immediately adjacent to this area, and under the approved eastern extension to the dwelling footprint, is located an extensive open area. This open area was described during the proceedings has an undercroft. It has a single supporting pillar in its middle on its northern elevation; an unbroken retaining wall on its eastern elevation; partially enclosing walls on the southern elevation but with two separate openings toward the boundary fence with the property to the south; and, to the west, a masonry wall with a double width sliding door leading into the lowest of the three habitable areas of the dwelling. The area accessed by this door, although now modified as later discussed, forms part of the original dwelling on the site.
A photograph of the western elevation of the dwelling, as it presents to the street directly to its west, is reproduced below. This photograph was part of Exhibit H.

The planning history of the development

As earlier noted, in 2008, the Council granted development consent, subject to conditions, for extensive alterations and additions to the existing dwelling. That consent was granted on the basis of plans prepared by Cheap-A-Plans. These plans were subsequently granted a Construction Certificate by Peter J Boyce & Associates. These plans have required considerable attention and analysis during the course of these proceedings.
It is, perhaps, appropriate to observe, at this point, that interpretation of these plans has not been without considerable difficulty and argument during the course of the proceedings. These plans are sufficiently inadequate that, assessed properly at the time of the original development application, it would have been open to the Council to have rejected them and this, perhaps, should have been done.
However, the plans were accepted by the Council as providing a proper basis for the granting of the 2008 development consent and thus, as a consequence, there is a valid development consent based on and incorporating those plans that requires to be dealt with in these proceedings.
The 2008 development consent was granted to Mr Raymond Ross, the immediate predecessor in title to Ms Chami, the current owner of the property and who is the applicant in the proceedings.
The installation of a swimming pool at the eastern end of the dwelling at the level of the middle of the three habitable dwelling levels has been undertaken pursuant to a complying development certificate. Work on this approved swimming pool and an immediately adjacent spa (not subject to the swimming pool’s complying development certificate but also not said to be part of this building certificate application) was not complete at the time of the site inspection.
The works that have been carried out on the site, in purported reliance on the 2008 development consent, embody significant departures from the approved plans and, in a number of respects relevant to these proceedings, remain incomplete in the form proposed by Mr Ross (either as the owner of the property or, for the reasons later discussed, as the guiding mind for the works continuing to be undertaken on behalf of the applicant in these proceedings).

The nature of the proceedings

The Environmental Planning and Assessment Act 1979 (the Act) establishes a regime, relevantly, that permits the regularisation of or protection from enforcement for works undertaken where those works are not in a form for which development approval has been granted through one of the aspects of the hierarchy of processes established by the Act.
Where development consent has been granted but the works were not in conformity with those approved, s 96 of the Act potentially provides (subject to the limitations in the provision) a path for retrospective approval (Windy Dropdown Pty Ltd v Warringah Council [2000] NSWLEC 240).
An alternative, here pursued by the applicant, is to apply for a building certificate through the process contained amongst the various matters covered by Part 8 of the Act. In this instance, as discussed later, an earlier s 96 modification application (by Mr Ross – the former owner and now agent for the present owner) was discontinued and the applicant has now made a building certificate application. The refusal of that application provides the foundation of these proceedings.
It is to be noted, as well as this hierarchy of approval processes, a statutory instrument under the Act, State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 also designates a wide range of very minor works as exempt and removes them from the need for the obtaining of consent through the statutory processes. The policy designates further types of development as “complying’ and thus capable of approval through the issuing of a complying development certificate where such certificates may be issued by a private certifier. The scope of the policy and its potential relevance to this dwelling is discussed later.
In addition to these approval processes under the Act, the Act also provides a range of enforcement mechanisms for local councils to respond to works that are carried out where they are neither exempt nor subject to an appropriate approval for their execution. Coupled with this enforcement regime, the Act also provides a potential shielding process to protect, in appropriate circumstances, unapproved works from the enforcement mechanisms in the Act. This protective mechanism is effected through the ability of a council to issue, after assessment of the unapproved works and in appropriate circumstances, a building certificate that has the effect of shielding any unapproved works for a period of time. The details of the statutory framework for building certificates are set out in more detail later.
At this point, it is sufficient to note several matters with respect to the building certificate process. These are:

First, if an application for a building certificate is refused (or deemed to be refused) by a council, a right of appeal against that refusal lies to this Court; and

Second, importantly, appeal proceedings concerning a building certificate application are, in no way, punitive proceedings of any disciplinary nature for the carrying out of unapproved works.

With respect to this latter point, it is clear that any punitive function in the Court is to be undertaken by the Court exercising its jurisdiction in a different Class of proceedings (see Ireland v Cessnock City Council [1999] NSWLEC 250; (1999) 110 LGERA 311 at [38] – referred to hereafter as Ireland No 2).
It is also clear that building certificate appeals, falling as they do in Class 1 of the Court's jurisdiction, are merit appeals and are subject to the procedural informality afforded to them by the provisions of the Land and Environment Court Act 1979 (the Court Act) as discussed in more detail later.

The building certificate application

An application by Ms Chami was lodged with the Council for a building certificate for the works as constructed. The form is dated 24 February 2014 and a copy is attached to the Class 1 appeal papers (Exhibit A). The only other document shown in Exhibit A as having been attached to the application is a survey report. A copy of the application form and survey report is reproduced as Appendix A. There is no evidence of any other documents being provided to the Council with the application. The Council’s Statement of Facts and Contentions (Exhibit 1) sets out, on pages 4 and 5, court orders for (in proceedings 14/40044) or written requests by the Council for further information concerning the application. None was supplied prior to the Council’s refusal of the application.
On 29 May 2014, the building certificate application was refused.
On 10 June 2014, this appeal was filed with the Court pursuant to s 149F(1) of the Act. Although Exhibit A describes the appeal as being against a deemed refusal, the application had, as noted, actually been refused prior to the filing of the appeal (but nothing arises from this).
On 14 October, I had the matter mentioned before me in order to deal with, amongst other things, my preliminary view as to the scope of the building certificate application that had been made to the Council and, therefore, as a consequence of the appeal, the scope of the matters to be dealt with during the course of the proceedings. That preliminary view was that the application founding these proceedings applies to the whole of the built form of the dwelling.
Although Mr Ross disputed this preliminary position, in the context of the documentation that had been provided coupled with the non-provision of any further detail (including any document that might otherwise have confined the building certificate application), I am satisfied that that which falls to be determined in these proceedings is a building certificate application with respect to the whole of the built form of the dwelling.

The role of Mr Ross

As has already been observed, Mr Ross was the applicant for and recipient of the 2008 development consent for proposed additions and alterations to the dwelling. He subsequently transferred ownership of the dwelling, apparently in early 2013, to the applicant (nothing, in these proceedings, turns on the timing of that sale).
Mr Ross has appeared in the proceedings before me representing the applicant. He has done so as her agent, pursuant to leave granted after consideration of documents sent to the Court by Mr Ross by e-mail on 12 August 2014 that were documents in satisfaction of s 63 of the Court Act and Part 7 rule 7.1 of the Land and Environment Court Rules 2007.
In his letter in satisfaction of rule 7.1, Mr Ross wrote, inter alia:

(g) I have advised Ms Chami that I will not be charging her for my services on the basis that her interests and mine are aligned.

I interpolate that, at a pre-trial mention attended by Mr Ross, I had explained to Mr Ross that, contrary to his then intention, it was not possible to be an agent (thus acting as an advocate) and also act as an expert witness – as the obligations of each role were inherently and fundamentally incompatible. Mr Ross was asked to determine which role he would seek to perform and advise this at the commencement of the site inspection. At the commencement on site, Mr Ross indicated that he sought leave to appear as the applicant’s agent and would not seek to give evidence. I granted that leave (there being no objection to this by the Council). I indicated that, under the circumstances, I would provide the appropriate procedural assistance as if Mr Ross were a self-represented litigant.
The only relevant distinction that I drew concerning Mr Ross's participation and the fashion in which the Court would ordinarily be expected to treat a self-represented litigant related to the potentiality for Mr Ross giving evidence in the applicant's case. I have, above, set out the circumstances under which Mr Ross elected to be the applicant's agent and act as advocate on her behalf rather than seeking to give expert evidence based on what he described at various times during the proceedings as is extensive engineering and/or building industry experience. As a consequence, although I did consider it appropriate to afford Mr Ross procedural assistance, under the circumstances was not appropriate to extend to him the liberty usually permitted to self-represented litigants of giving (lay) evidence in their own causes whilst also advocating that cause.
In the Council's Statement of Facts and Contentions (Exhibit 1), the Council describes the applicant’s relationship with Mr Ross in the following terms (at 4(a) of the document):

(a) The Applicant is and was at all relevant times the partner of Raymond Ross.

Finally, during the course of the hearing, I raised with Mr Ross on several occasions the extent of his instructions from the applicant and his authority to bind her on matters either general or specific (for examples - see transcript 20 August at p 4; 21 August at p 7; and19 November at p 73). He indicated he had the necessary authority.
I note that, although the Council's Contentions were the subject of vigorous contest by Mr Ross during the course of the proceedings and although the Statement of Facts and Contentions was tendered, the applicant did not file (and Mr Ross did not seek to tender) any Statement of Facts and Contentions in Reply disputing anything set out in the Council's Facts, generally or specifically, concerning the applicant’s relationship with Mr Ross.
During the course of the site inspection (discussed later), Mr Ross made a number of observations that made it clear that he was ultimately responsible for the works that had been carried out at the site and would remain so for any future works whilst Ms Chami was the owner of the site.
Whatever the precise nature of the relationship between the applicant and Mr Ross, however, I am satisfied that it is reasonable to conclude that not only was Mr Ross the guiding mind for all the works carried out on the site up until the date of the transfer of ownership to the applicant, but that he also remains the guiding mind for any works undertaken since the date of the transfer (if there be any). Although these conclusions may not be of particular importance, I am satisfied that they demonstrate that Mr Ross’ participation in the proceedings on behalf of the applicant is on a fully informed basis concerning the scope and nature of the works carried out on the site.

The outcomes initially sought by the Council

Early in the proceedings, a document entitled One Page Summary of Part B Contentions filed 28th July 2014 was tendered for the Council and became Exhibit D. The third element of this document listed seven items under the heading Measures sought by respondent before approval is recommended. Those measures were:

Complete removal of all awnings front (West and North) and rear East (reduced to 300 mm)

Bricking up of backyard access door between the undercroft area and the main dwelling

Reducing side gate from 1500 to 1200 mm

Replacement of lightweight construction material with masonry for infill panels below windows on 2nd floor

Demolition of the existing ground floor Main entrance and replacement with a 1st floor main entrance including provision of approximately 1.63m wide and 3.5m high masonry stairs including handrails and landings

Privacy screens to front corner south west facing windows and across approved 1st floor balcony

Demolition of 2nd Floor south face brick balustrade and replacement approved south balcony with open roof space

The site inspection

On the first day of the hearing, a site inspection was undertaken. This took place in the company of the parties’ representatives and those advising and/or instructing them. At the commencement of the site inspection, I indicated that there were matters concerning evidence proposed to be tendered in the proceedings about which I had concerns. As a consequence, I indicated that the site inspection would be carried out on the basis that, if matters discussed encompassed proposed witnesses and/or proposed evidentiary propositions that were subsequently excluded, I would disregard anything said by or concerning, relevantly, those persons or things.
At a pre-trial telephone mention, I had indicated to Mr Griffiths, the solicitor then appearing for the Council, that I considered it desirable that the Council provide three copies of the 2008 development consent plans, in A3 size, to enable a marking up of those areas that had been constructed and which could be observed to differ from those plans when compared to that which had originally been approved in 2008. These copies were provided (one for me, one for Mr Eastman, counsel for the Council, and one for Mr Ross) at the commencement of the site inspection.
Mr K Nash, consultant town planner for the Council, sought permission to be able to take photographs during the course of the site inspection. Mr Ross agreed to this, subject to the restrictions that:

Mr Nash indicated when he proposed to take a photograph;

Any photographs were not to include any people, including participants in the site inspection or residents at the site; and

Any photographs taken in the interior of the building were not to include personal effects of the occupants.

The Council accepted these conditions. With the exception of one photograph that inadvertently included a reflected image of one participant in the site inspection (and which was excluded when included in a group of photographs sought to be tendered), compliant photographs were later admitted as evidence.

The marking of plans during the site inspection

During the course of the site inspection, at each location where a departure from the 2008 development consent plans was observed, we stopped to inspect the departure and I marked, either by lines or words or both, a notation on my set of plans concerning that departure. For a number (but not all) of these departures, Mr Nash photographed that element of the structure.
I indicated to the parties that I would provide each of them with a photocopy of the set of plans that contained my annotations (as I intended to use those marked plans as an aide-memoire unless either party sought to tender the copy that I provided to them). Neither Mr Eastman nor Mr Ross raised any objection during the course of the site inspection to the notation process taking place as I had proposed.
When we returned to Court after the completion of the site inspection, I provided Mr Eastman and Mr Ross with an A3 colour photocopy of the 2008 plans marked with my annotations. Mr Eastman subsequently tendered a set of these annotated plans, without objection from Mr Ross, and they became Exhibit 3.

The matters identified from the first site inspection

I have set out above the process that was undertaken during the course of the first site inspection to annotate a set of plans with those matters that were observed, during the site inspection, as being departures from matters depicted on the 2008 development consent plans.
During the course of the proceedings that followed, Mr Eastman produced a number of documents that contained lists of what the Council identified as departures from the approved 2008 development consent plans. These documents, which underwent considerable evolution during the course of the proceedings, were marked for identification and used for the purposes of identifying a number of matters that arose during the course of subsequent evidence.
The final version of the list was divided into two distinct sections. The first was a list of those matters with respect to which the Council indicated that it did not object to the granting of the building certificate for those works and that the Council did not request that I require anything additional to or modification of those elements prior to them being incorporated in a building certificate. That list was tendered and became Exhibit 8. A copy of that list is reproduced as Appendix B.
It is possible that some matters appearing on that list fall within the scope of State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 as being exempt development for which no consent is required.
Other elements might fall within the scope of the complying development provisions of the policy and be able to be dealt with by an accredited certifier (including a private certifier).
Finally, some further elements might not fall within the scope of the complying development provisions of the policy as a consequence of the application of exclusionary provisions in the policy. This is discussed later.
However, it is unnecessary, in my view, for me to undertake a detailed examination of each of the identified departures in order to classify whether or not they require development consent.
I have earlier noted the nature of the application lodged with the Council. I have set out my view, on a proper interpretation of that document, that the application should be regarded as seeking a building certificate for the whole of the dwelling on the site.
As the granting of a building certificate embodies a process that is beneficial and protective for an applicant and any successor in title, I propose to require the Council, should a building certificate result from the completion of the second stage of the process in these proceedings, to incorporate all of these uncontroversial elements in a draft certificate without the necessity for an item by item enquiry as to whether the protection afforded by the certificate strictly requires to be given to each of them. Mr Ross indicate his agreement with this course of action (Transcript 18 August - page 17, lines 10 to 20). Despite subsequent statements by Mr Ross that, at various times, sought to modify or resile from this position, I have proceeded on the basis that this is the proper course to follow.
The second part of the list prepared by the Council encompassed, for the most part, matters that the Council considered fell within the scope of the 2008 development consent plans but where that which had been constructed was not in accordance with those plans and where the Council considered that, prior to any contemplation by me granting a building certificate, supplementary or remedial works were required to the listed element.
An additional portion of this list related to matters which the Council considered required development consent and for which development consent had not been granted and which also fell outside the scope of the plans submitted to and underpinning the granting of the 2008 development consent. This second list became Exhibit 11. It is reproduced at Appendix C.
With respect to the matters contained on this list, two observations warrant being made. The first is that, with respect to the matters that are clearly not within any possible construction of the scope of the 2008 development consent (these being set out in the separate section on the final page of Exhibit 11), I do not propose to deal with those matters by treating them as being within the scope of these proceedings. The approach to be taken to Item 99 in Exhibit 11 (the lift well) is subject to separate later discussion. With respect to matters where the Council says a building certificate is potentially able to being required, it is appropriate to deal with them on an item by item basis and I have proceeded to do so in this decision.
A copy of page 4 of the plans marked up during the site inspection (Exhibit 3) is reproduced (in small scale) below to provide an understanding of the process that was undertaken. The page chosen (the plan for the uppermost level) has been selected as this level figures prominently in matters requiring determination (and, later, other versions of the plan for this level will be reproduced).

The Council originally produced a single, composite list derived from Exhibit 3. It was marked for identification and initially used only as an aide-memoire. This list reflected the totality of the matters observed during the course of the site inspection in August where it was revealed that the various elements on the list did not reflect that which was depicted on the 2008 development consent plans. Exhibits 4 and 11 evolved from this list.

The litigation history involving the site

There have been a number of separate proceedings involving the site that have had the Council as either the applicant or the respondent in those proceedings with the opposing party being Mr Ross. Except to the extent that the proceedings before Dixon C are engaged, specifically, in various evidentiary elements invoked in these proceedings (discussed elsewhere), these other proceedings have no bearing on the matters that I am required to consider. A number of decisions have been given (both in this Court and in the Court of Appeal) that provide broad context only for these proceedings but do not bear, in any way, on the outcome of these proceedings. It is not necessary to provide a full list of those decisions for any contextual reason in this decision. Specific decisions will be noted as relevant.
In addition, as noted above, relevant in the particular evidentiary contexts later discussed, is the decision of Dixon C dealing with an application by Mr Ross (in his then capacity as the owner of the site) made pursuant to s 96 of the Act to modify the development consent that had been given to him in 2008 for additions and alterations to the existing dwelling on the site (Ross v Lane Cove Council [2012] NSWLEC 1364).

Approaches to building certificate applications

Depending on the circumstances that exist as the backdrop to a building certificate application, there are at least three different paths for the Court to consider following in determining any appeal against the refusal or deemed refusal of a building certificate application. The three options of which I am aware (although there may be others) are set out below.

First, when the works are unapproved and there is no approved use to which the works could be dedicated, the appropriate course for the Court to follow is to deal with the question of the structural adequacy and building code compliance of the works and then to consider any separate development application for approval to use the works for a particular purpose. This is the approach that was taken by Bignold J in Ireland No 2;

Second, when the works are unapproved additions and/or alterations to approved works and there is, expressly or necessarily implicit in the approval for the approved works, an existing approval for use for a particular purpose attached to that approval and, if the unauthorised works are regularised, approval is sought for a different use, the appropriate process is to consider the structural adequacy and building code compliance of the unapproved works before considering whether it is appropriate to approve the change of use if the unapproved works were to be regularised. This process also necessitates two separate applications, one for a building certificate to regularise the unauthorised works with a second application being necessary for approval for the change of use. These are the circumstances I addressed in Griffis and anor v Tweed Shire Council [2011] NSWLEC 1126.

Third, and more complex, however, are the circumstances that arise in these proceedings - namely where there is an existing approved use (as a residence), significant departures from the current development consent for additions and alterations to the existing residence but, if a building certificate were to be granted, no separate application to establish or change a use is required as the pre-existing residential use is proposed to be maintained.

In these latter circumstances, there is no separate assessment analysis engaged through a second application and thus the appropriateness or otherwise of regularising the unauthorised works, in terms of undertaking any form of broad town planning merit assessment of their impacts (if any) is necessarily conflated into and forms part of the building certificate application determination process.
Mr Ross, in his supplementary submissions in reply on behalf of the applicant said, with regard to the process to be undertaken in such an appeal (at page 2 of his emailed letter to me of 10 November appended to those submissions and reproduced exactly as in the original including Mr Ross’s notations of his added emphasis):

There is no lengthy “merit assessment” of the structure required by section 149D of the EPA Act (emphasis added). All that section requires is an enquiry as to whether there is an entitlement to take action (of the kind set out in S 149(1) (a)) and whether there is an actual intention (“the proposal”) to take any action. Where there is no such entitlement or no such proposal the section otherwise imposes a mandatory duty on Council to issue a Building Certificate (emphasis added): Mineral Wealth Pty Ltd v Gosford CC (2003) 127 LGERA 74 etc
The Council is not entitled to take any action in respect to the largely untouched existing building which forms the bulk of the structure.

The conducting of a notional development assessment is consistent with the approach adopted by Bignold J in Taipan Holdings Pty Ltd v Sutherland Shire Council [1999] NSWLEC 276. Contrary to Mr Ross’s submissions, the appropriateness of this approach was not the subject of disagreement by Pain J in Mineral Wealth Pty Ltd v Gosford City Council [2003] NSWLEC 153; (2003) 127 LGERA 74 as a proper reading of her Honour’s judgment at (43) makes clear her Honour was distinguishing between notional development application assessments and the instance with which she was dealing – namely an actual development application.
The Court is sufficiently empowered to adopt a merit assessment process in such third circumstances (circumstances applicable in these proceedings), in my opinion, as a consequence of the discretionary scope given to the Court by s 149F(3)(a) and (c) of the Act, a discretionary range that is wider, in my view, than the more limited role of standing in the shoes of the original determining body that is provided for in s 39(2) of the Court Act (see Bignold J in Ireland v Cessnock City Council [1999] NSWLEC 153; (1999) 103 LGERA 285 at (58) – referred to hereafter Ireland No 1). The powers of the Court are not only wider than those of the Council, but, contrary to Mr Ross’s submission above, the Act does not mandate the Court as to outcomes in such proceedings.
It is for this reason that considerable portion of the hearing days occupied by this matter were taken up by cross examination of Mr Nash by Mr Ross.

The planning controls

The relevant local planning context is provided by the Lane Cove Environmental Plan 2009 (the LEP) and the Lane Cove Development Control Plan 2009 (the DCP). The original development application, having been lodged and determined prior to the coming into effect of the LEP and the DCP, was the subject to the planning regime that had previously applied, namely the Lane Cove Local Environmental Plan 1988 (the 1988 LEP) and the Lane Cove Development Control Plan 1988 (the 1988 DCP). The date of issuing of the 2008 development consent was 2 April 2008 with the assessing and determining the application being against the provisions of the 1988 LEP.
Although the 1988 documents provided the planning context that gave rise to the approval of the application for additions and alterations to the then existing dwelling on the site, its provisions give no assistance in the present proceedings as the DCP controls that are relevant for my consideration are those that are currently applicable. It matters not, in my view, whether that applicability arises as a consequence of those controls being the relevant controls as at the date of the application for the building certificate or because they were the relevant controls as at the date the various non-compliant elements that have been built were actually constructed or because they apply at the time I come to deal with this appeal (the latter being, in my view, the correct position).
The site is now zoned residential pursuant to the LEP. Zoning consistent with the present zoning applied under the 1988 LEP that operated when the development application was made in 2007 that resulted in the granting of the 2008 development consent.
Relevant controls relate to the maximum permitted floor space ratio and the maximum height control.
In these proceedings, there were two factual issues in dispute concerning these controls. The first was whether or not that which has been constructed exceeds the permitted floor space ratio whilst the second was whether that which has been constructed exceeds the maximum permissible height. Each of these is discussed in separate subsequent sections of this decision.
Other, relevant more fine-grained controls are contained in the DCP. It is these current controls that fall to be considered in my assessment of what has actually been built.
There are two particular aspects that are raised by the Council as requiring consideration in these proceedings. They relate to bulk and scale issues of the presentation of the built form of the dwelling as constructed in its streetscape context and, second, issues of amenity impact on the dwelling immediately to the south at 6 Bayview Street. Each of these aspects is also discussed in a subsequent separate section.

Exempt and complying development

On several occasions during the course of the proceedings, Mr Ross indicated that some elements of that which had been constructed work, in his opinion, exempt or complying development and thus amenable to benefit from the facultative provisions of the State Environmental Planning Policy (Exempt and Complying Development) 2008. Mr Ross made it clear that he advanced the view on behalf of the applicant that the provisions of this policy meant that some elements of that which had been built did not require any consent whilst other elements were capable of approval by a private certifier as they were complying development as set out in one of the elements of Part 3 of the policy.
In light of the approach that I have taken to dealing with the areas where the Council raises no concern about the departures from the 2008 development consent plans, it is unnecessary for me to express a concluded view on this point as I am taking an expansive attitude on including those matters for which a building certificate will be required once I am satisfied that that which is set out in Schedule 1 has been completed.

Evidentiary issues

General evidentiary issues

The Council filed and served two documents that it proposed to rely on as statements of evidence in the proceedings. They were a statement of evidence from Mr Nash and a document that purported to be a statement of evidence jointly authored by two engineers employed by the engineering consultancy retained by the Council. This latter document purported to be a statement of evidence dealing with structural engineering issues. The applicant filed and served statements of evidence from two architects, Mr Michalandos and Mr Sweeney. All aspects of the proposed evidence required procedural consideration before the documentary evidence, such as it resulted, could be accepted as exhibits.
It is convenient to deal with each of these four intended evidentiary documents in turn.
With respect to the proposed statement of evidence from Mr Nash, I expressed my concern to Mr Eastman about two aspects of the document. First, at some seven separate points in the document, Mr Nash expressed the opinion that the application for a building certificate should be refused. I indicated to Mr Eastman that I did not consider it appropriate for Mr Nash to be expressing that opinion as that final matter was the matter that required determination by the Court. In response to those concerns, Mr Eastman did not seek to tender any of those seven statements and they were struck through in the document. Second, one comment by Mr Nash constituted the expression of a legal (not a planning) opinion and this comment was also struck out. On that amended basis, Mr Nash's statement of evidence became Exhibit 4.
With respect to the hybrid engineering document with joint authorship (a document written, for the most part, in the first person plural but with at least one instance of the first person singular incorporated within it), Mr Eastman was granted leave to call Mr Leedow, one of the authors of the joint document, to give evidence of its provenance. In essence, his evidence was that the document had, in its original form, been drafted by a colleague who had had earlier involvement with the site, but the document had been reviewed and reworked by Mr Leedow. As I considered I would not be able to be certain whose opinions were those expressed by which author if the document were to be admitted, I rejected the tender of this document.
However, as later set out, a statement by Mr Leedow alone was admitted and became Exhibit 10.
With respect to the two statements of evidence proposed to be tendered on behalf of the applicant, Mr Eastman objected to the tender of both of them, cumulatively, on the basis that the documents were from experts from the same discipline (architecture) and substantially traversed the same areas within that area of expertise. In response to the objection, I considered that one element of overlap between the statements of evidence existed, that concerning the awnings that had been constructed outside the scope of the development consent and I struck out that section of the statement of evidence of Mr Michalandos. Mr Michalandos’ statement of evidence became Exhibit C and that of Mr Sweeney became Exhibit B. Mr Sweeney, I observe in passing, had accompanied us during the course of the site inspection.

The applicant's town planning material

I have earlier briefly noted there has been an extensive litigation history involving the Council, on one hand, and Mr Ross and/or the applicant, on the other hand, concerning the works being undertaken by Mr Ross to the dwelling now owned by the applicant. One of those other proceedings was the modification application made by Mr Ross pursuant to s 96 of the Act. The modification application proceedings were conducted before Dixon C. These modification application proceedings provided material for a deal of the cross-examination of Mr Nash. This arose in unusual circumstances during the first phase of the hearings, circumstances now appropriate to note.
In the modification application proceedings, Mr Ross had retained a consultant town planner, Mr Turrisi. Mr Nash had then, as now, been retained by the Council to provide expert town planning evidence. Mr Turrisi and Mr Nash each provided an expert report in the earlier proceedings and, after a joint expert conference, produced a written joint expert report. Use in these proceedings of Mr Turrisi's statement and the joint expert report from the modification application proceedings is discussed in more detail below.
At the commencement of the hearings in these proceedings, Mr Ross foreshadowed his desire to tender Mr Turrisi's statement and the joint expert report from the modification application proceedings to become evidence in these proceedings.
That course was opposed by Mr Eastman and, after foreshadowing the reason why this objection was made and the evidence that would be available in support of the objection, an affidavit of Mr Eastman's then instructing solicitor, Mr Griffiths, was provided later that day and read over the objection of Mr Ross. In that affidavit, Mr Griffiths deposed the terms of a conversation that he had had with Mr Turrisi during the course of which Mr Turrisi had said, amongst other things, as follows (in response to Mr Griffiths’ question “Are you engaged in the matter?”):

No. Mr Ross approached me about a month ago. He showed me the Contentions. I declined to act in the matter.

It was on the basis that Mr Turrisi had declined to take part in these proceedings that Mr Eastman objected to any tender of Mr Turrisi’ statement of evidence and the joint expert report from the modification application proceedings.
Because I had earlier indicated to Mr Ross that, although he was appearing as the agent for the applicant, I proposed to treat him as if he were a self-represented litigant, I indicated to Mr Ross that, if he were to seek leave to issue a short service subpoena on Mr Turrisi to attend and give evidence, I would grant leave for that purpose. Mr Ross sought that leave and, without demur from Mr Eastman, leave was granted on Friday 15 August on the basis that any such subpoena would have to be served, personally, on Mr Turrisi no later than 5 pm on Monday 18 August with the return date and place being 10 am before me on Wednesday 20 August.
At the time for return of the subpoena, setting aside the strict procedural requirements for Mr Ross to call on the subpoena (and without demur from Mr Eastman), I had the court officer call Mr Turrisi three times outside the Court as there had been no attendance by him in the Court. There was no response to those calls by the court officer. Although there was no affidavit of service proposed to be read by Mr Ross, the transcript (Transcript 20 August page 1 line 44 to page 3 line 6) records the following exchange taking place concerning the subpoena issued to Mr Turrisi:

SENIOR COMMISSIONER: I also infer, unless he is outside, that Mr Torrisi either has not been served with the subpoena or has been served with the subpoena and he'd decided not to answer it. Have you served him, Mr Ross?
ROSS: Yes, Senior Commissioner. I have served him. I have spoken to him. I have served him by email. It's been served in the first person as well, and yes, it has been served.
SENIOR COMMISSIONER: Do you have any indication from him as to whether he proposes to answer the subpoena?
ROSS: He hasn't responded.
EASTMAN: Ms Schofield is just leaving the courtroom just to check if there's anyone on the floor waiting.
SENIOR COMMISSIONER: I need to, depending on what Ms Schofield says when she comes back, I suppose—
EASTMAN: She shakes her head to indicate there's no-one outside.
SENIOR COMMISSIONER: Rather than going through the formal process at this time of inviting Mr Ross to fall on the subpoena, unless you have any objections I just propose to ask Mr Ross some questions about manner and timing of service.
EASTMAN: I have no objection to that course. I think it's good that it comes out.
SENIOR COMMISSIONER: Mr Ross, when was the subpoena personally served on Mr Torrisi?
ROSS: At around 11 am on Monday.
SENIOR COMMISSIONER: By whom was it served?
ROSS: By Ms Chami in person. Prior to that it was also served on Friday just prior to me having a discussion with Mr Torrisi.
SENIOR COMMISSIONER: When you say served on Friday, you mean electronically provided to him, do you?
ROSS: Yes.
SENIOR COMMISSIONER: It might be necessary for there to be proof of personal service. You are saying to me, as I understand it, that if it were necessary to do so, Ms Chami would provide an affidavit that she personally served the document, where and under what circumstances.
ROSS: Precisely.
SENIOR COMMISSIONER: Let's get you to sit forward again so we can record what is being said. I suppose, Mr Eastman, without necessarily requiring Mr Ross to go through the form of words which you would anticipate would be necessary for the calling on of the subpoena, it's sufficient that - you will accept that I ask Mr Ross if he wants the subpoena called and then have the court officer go outside and call Mr Torrisi.
EASTMAN: Yes, I accept that being a prudent course.
SENIOR COMMISSIONER: Would the court officer call Mr Torrisi three times please.
SPEAKER: No appearance, Senior Commissioner.

As a consequence, consistent with my obligation to provide procedural assistance to Mr Ross (but not to do so in a fashion that provided assistance with the merits of the applicant's case), I indicated to Mr Ross that, at an appropriate time, I would permit him to question Mr Nash about matters contained in the joint report (and about matters contained in the transcript of the modification application proceedings) and permit him to revisit the question of tendering of modification application proceedings related documents at that time.
Near the conclusion of the first phase of the hearings, Mr Ross again sought to tender Mr Turrisi’s statement of evidence and the joint report of Mr Turrisi and Mr Nash arising from the earlier modification application proceedings. Mr Eastman objected to their tender save to the extent that they were required for the purposes of understanding Mr Nash's response to the matters that were contained in them. Mr Ross pressed the tender of the documents being admitted for all purposes including as evidence of the opinions expressed by Mr Turrisi in them.
At this point it is appropriate to note the provisions of s 38(2) of the Court Act, a provision here applicable. It is in the following terms:

In proceedings in Class 1, 2 or 3 of the Court’s jurisdiction, the Court is not bound by the rules of evidence but may inform itself on any matter in such manner as it thinks appropriate and as the proper consideration of the matters before the Court permits.

The freedom from the constraints of the rules of evidence is expressed by the statute to be broad and generally unconstrained (although subject to the requirements to afford procedural fairness and natural justice). As a consequence, in proceedings of this type, the provisions of the Evidence Act 1995 concerning expert evidence do not apply (although I have heeded the decision in Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705 in my consideration of such evidence).
As, at that time, Mr Turrisi had not attended to give evidence and was thus not able to be tested on relevant matters, I held, at that time, that it was appropriate to restrict the evidentiary use of those documents in the fashion sought by Mr Eastman.

The role of Dixon C’s proceedings

In late 2012, Dixon C heard the appeal made by Mr Ross (as the then owner of the site). Those proceedings involved an appeal against the refusal by the Council to grant a modification application for variation to the 2008 development consent. The modification application was made pursuant to s 96 of the Act and was, in part, designed to legitimise what had already been constructed (involving a number of departures from the 2008 development consent plans) and, also in part, to grant prospective consent for other variations to the 2008 development consent plans proposed to be undertaken by Mr Ross.
The Commissioner heard the matter and made a number of findings of fact concerning the merits of the proposal and a finding concerning her jurisdiction to grant the modification application (Ross v Lane Cove Council [2012] NSWLEC 1364).
This latter point arose as, during the course of the proceedings, the Council submitted that, on a proper understanding of the proposed modification plans, that for which Mr Ross sought consent would result in a development not substantially the same as that for which the original consent had been granted in 2008. This arose as s 96(2)(a) of the Act requires that the consent authority be “satisfied that the development to which the consent as modified relates is substantially the same development as the development for which the consent was originally granted” (the “substantially the same” test). This test must be satisfied before modified proposals can be approved.
The Commissioner applied the reasoning process set out by Bignold J in Moto Projects (No 2) Pty Ltd v North Sydney Council [1999] NSWLEC 280; (1999) 106 LGERA 298 and concluded that, with the awnings proposed on the modification plans and already built (the awnings that are one of the aspects requiring to be dealt with in these proceedings), the proposed modification plans would not result in a development substantially the same as that for which the 2008 development consent had been given.
The Commissioner indicated, as I understand her published reasoning (the entirety of the transcript before her not being in evidence in these proceedings - limited portions only having been admitted in evidence as Exhibits T and U - as discussed in the next section) that she was prepared to grant a modified development consent provided the awnings were removed from the scope of that consent. She adjourned the proceedings to permit the preparation of amended modification plans that would delete the awnings from the scope of the modification being sought.
Such a course would have permitted a subsequent building certificate application to be made by Mr Ross to regularise the awnings through the protective regime of such a certificate.
Instead of pursuing that course, Mr Ross discontinued those proceedings and, after the effluxion of time, these proceedings for a more expansive building certificate now require to be determined.
It is in this context that it is necessary to consider what weight it may be appropriate to give to conclusions reached by Dixon C in those proceedings as part of the determinations that I need to make in these proceedings.
The submission made by Mr Ross in these proceedings with respect to factual merit determinations made by Dixon C is, in effect, that I am bound by those determinations (at least as I understand his position). In effect, he advocates the proposition that the matters dealt with by Dixon C concerning which she made specific determinations are, in effect, res judicata, and I am not able to revisit them. At paragraph 25 of his written closing submissions, Mr Ross said:

25. Although one member of the court cannot bind another member of the court to a conclusion on any given site and set of facts. It is clear this only applies to adverse conclusions restricting the discretion of the following member. A consent or evinced consent by the relevant consent authority/earlier member of the court on the same site and the same set of facts raises a res judicata argument if that consent or evinced consent is sought to be challenged, overturned or modified by more onerous conditions.

There are two proper responses to be made to this submission. The first arises where differences in the matters to be assessed come from a comparison of the factual position before Dixon C when compared to the factual position engaged by these proceedings. The second arises if there were to be no such differences.
I turn, first, to the position that arises where there are differences in the matters to be assessed arising from a comparison of the factual position before Dixon C and that arising in these proceedings.
In the fourth edition of Spencer Bower, Turner and Handley The Doctrine of Res Judicata, the learned authors discuss, at p 255, the question of whether or not estoppel issues can arise if there have been changes in the relevant position engaged in the earlier proceedings. Under the heading Changing Situation, the following statement appears at the commencement of this section:

17.30 There can be no effective res judicata in a changing situation.

The text on the same page subsequently extracts relevant portions of the speech by Lord Bridge in Thrasyvoulou v Secretary of State for the Environment [1990] 2 AC 273 at 290 as follows:

“…………… a decision to withhold planning permission resolves no issue of legal right … It is no more than a decision that in existing circumstances and in the light of existing planning policies the development … is not one which it would be appropriate to permit … such a decision cannot give rise to an estoppel per rem judicatam.”

Precisely the same considerations here arise – to the extent circumstances may have changed, my determination must be made in light of the circumstances now applying. Those circumstances include the state of the construction now when compared to that in existence at the time of Dixon C’s decision.
I reject the proposition that any res judicata principle acts as an estoppel to prevent me reaching some alternative conclusion to Dixon C if I consider that such an outcome is now appropriate in the facts and circumstances of the changed development as I now find it.
It is clear that this is the only logical position to be adopted, in my view, given the state of the development as it was at that time of the inspection of the proceedings before Dixon C and the significantly more substantially completed nature of the development at the time of the first inspection by me over one and a half years later.
I reproduce below a photograph that is in evidence (Exhibit 14 photo 19) which was taken by Mr Nash at the time of the proceedings before Dixon C and a subsequent, contemporary photograph (Exhibit 12 photo 32) - effectively from the a similar angle and perspective (and certainly of the same aspect of the building), showing the significantly different nature of the structure as it has evolved over the intervening time.

Far less of the structure of the uppermost level appears to have been erected above the uppermost slab at the time of the 2012 inspection whilst, with the exception of limited elements of the internal finishes (some of which are controversial in these proceedings), the entirety of the building structure has effectively now been completed. The changes are substantial and the position dealt with in the text earlier quoted is clearly engaged with respect to those matters where it is self-evident that substantive change has taken place between Dixon C dealing with the site and me needing to do so.
As a consequence, the context of my consideration of some of the issues (at least) takes place through an entirely different conceptual lens when compared to that dealt with at the end of 2012.
In addition, also to some extent, the evidence from the 2012 proceedings that became evidence in these proceedings (Mr Turrisi’s town planning evidence on behalf of the applicant [Exhibit M] and the joint statement of Mr Turrisi and Mr Nash [Exhibit K]) has, potentially at least, much less weight with respect to any aspects of the development that were, themselves, incomplete or are aspects of the development where other incomplete elements might not (or did not) provide a proper setting to enable proper assessment of what has become the resultant final form of those elements.
Where relevant, this is discussed in the context of the specific aspect of the structure for which a building certificate is now sought.

Where there is no substantive factual difference, I am able to disagree (should I do so) with any conclusion expressed by Dixon C provided I clearly articulate my reasons for doing so (although the statutory foundations for the two proceedings differ, I am of the opinion that the position dealt with by the Court of Appeal in Segal & Anor v Waverley Council [2005] NSWCA 310; (2005) 64 NSWLR 177 applies in such circumstances).

The s 96 modification proceedings transcript

It was obvious to me from the outset that Mr Ross proposed to rely (if permitted to do so) on at least some of what had occurred during the s 96 modification application proceedings heard by Dixon C. As the Commissioner had obtained a copy of the transcript of those proceedings for her decision-making process, I concluded that it was appropriate for the purposes of these proceedings that the parties have access to that transcript. As a consequence, I provided the parties with a photocopy of the transcript of each of the days of the December 2012 hearing.
Mr Ross sought to tender the transcripts of 18 and 19 December 2012, they being the two hearing days before Dixon C occupied by the modification application hearings. Mr Eastman objected to the tender of these transcripts on the basis that Mr Nash had only been cross-examined on extremely limited extracts of his evidence recorded in those transcripts. Mr Ross indicated that he only sought to rely on those matters in the transcript to which he had taken Mr Nash in cross-examination and, as a result, Mr Eastman withdrew his objection to the tender of those elements. To enable Mr Ross to identify with precision those extracts he was seeking to tender, that tender was deferred until a later stage in the proceedings.
The relevant extracts were subsequently tendered, without objection, and became Exhibits U (transcript of 18 December 2012) and T (transcript of 19 December 2012).

Mr Turrisi giving evidence

I have earlier set out the process by which Mr Ross was granted initial leave to issue a subpoena to Mr Turrisi to attend and give evidence - with this not resulting in his attendance (for whatever reason). Mr Ross subsequently sought leave to issue further subpoenas to Mr Turrisi (to give evidence and to produce documents).
Leave was granted to him to do so with different return dates set for each of these activities. The return date for the production of documents was set to be before the Acting Registrar on the day prior to the commencement of the third tranche of the proceedings whilst the subpoena to attend and give evidence was set to be returnable before me on site at the commencement of the second site inspection.
Although there was, apparently, some confusion that arose as to the timing of the return of the subpoenas and whether there was to have been a combined subpoena or two separate subpoenas, Mr Turrisi did turn up, in court, after the completion of the second site inspection. He produced a small bundle of documents (some of which were subsequently tendered) and gave oral evidence.
He gave his oral evidence, in my view, in a frank and constructive fashion and it was not necessary to provide any additional procedural levers to Mr Ross for the eliciting of Mr Turrisi’s evidence.

The basis for reaching my decisions

The position that I have consistently adopted concerning my decision-making processes in merit appeals has always been to apply the decision of the High Court in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 as to the degree of comfortable satisfaction that I should have with respect to the consequences of any decision that I was contemplating making. A recent decision of the full Court of the Federal Court (Sullivan v Civil Aviation Safety Authority [2014] FCAFC 93) has discussed the relevance of Briginshaw in the context of administrative decision making by appellate bodies when that body is not bound by the rules of evidence. I have carefully considered whether the Federal Court's decision, in any way, should impact on my decision-making process in these proceedings and I am satisfied that it does not. As part of my consideration of the proportionality issue, I remain satisfied that it is appropriate to have regard to the consequences of any option potentially available to me to be determined as an appropriate outcome with respect to any issue in dispute.
A similar proposition applies, I am satisfied, to my consideration of the accumulated outcome of the various individual decisions that I might reach in these proceedings.

The length of the hearing

When, after a decision in the Court of Appeal (Ross v Lane Cove Council [2014] NSWCA 50), various matters were remitted to Pepper J, she concluded that the objects of s 56 of the Civil Procedure Act 2005 (for the just, quick and cheap resolution of the issues genuinely in dispute between the parties) would best be served by an expedited hearing and determination of the building certificate application made by Ms Chami (with further consideration of the civil enforcement proceedings in Class 4 of the Court's jurisdiction to await the outcome of these buildings certificate proceedings). Three days were therefore allocated as an appropriate amount of time to allow for the conduct of those proceedings and the Acting Registrar arranged an early listing on this basis.
The estimate proved to be wildly optimistic with the proceedings, as they unfolded, requiring a total of twelve full or part hearing days with, even then, the need arising to permit Mr Ross the opportunity to make supplementary written submissions in reply after the close of oral submissions on the final hearing day.
Some of this time was necessarily expended in dealing with procedural matters but the significant bulk of the evidentiary element of the proceedings arose from Mr Ross's cross-examination of Mr Nash, the Council's consultant planner. This cross-examination took place over eight full or part days.
My point in recording this fact is not, in any way, to be critical of the outcomes that Mr Ross pursued with his cross-examination. Although, as would be expected of such a lengthy cross-examination by a lay advocate, there was the occasional gratuitous, infelicitous and inappropriate use of language and unnecessary repetition, nonetheless Mr Ross made a deal of headway in the applicant's case by obtaining concessions by Mr Nash on several matters of some importance requiring my consideration of the issues. On one major matter, FSR compliance, Mr Nash conceded he had made a significant error in his calculations – a matter discussed later.
Had it been otherwise, I would have been obliged to consider whether or not this cross-examination process should have been curtailed considerably earlier than its finish.

Mr Ross’s general attack on Mr Nash’s credibility

Mr Ross attacked the reliability of Mr Nash’s evidence many times during the course of the proceedings and in his written submissions. As noted above, on one major matter, Mr Nash was forced by Mr Ross’s cross-examination to concede significant error in Mr Nash’s calculations concerning the floor area of the uppermost level. However, Mr Ross, in various submissions and comments both during the course of the proceedings and in his written closing submissions made general attacks on Mr Nash’s evidence and the put the proposition that Mr Nash’s evidence was unreliable in its entirety. For convenience, I only set out the element of Mr Ross’s written closing submissions on this point (this being thematically consistent with the overall thrust of his submissions and comments on this point). At paragraphs 21 to 23, Mr Ross’s written closing submissions read:

21. Counsel’s expert’s qualitative, subjective evidence has also been shown to be consequentially tainted, unreliable or even incompetent to the point the experts evidence cannot be relied upon to any extent whatsoever. Despite Mr. Eastman coming to Mr. Nash’s aid and suggesting that he had directed him to put certain (we say) misleading information into his report seemingly to explain irregularities in his evidence. None the less Mr. Nash’s eventual contentions were shown to be simply wrong.
22. Mr. Nash’s evidence and eventual concessions in cross examination must be viewed in the light of the fact that he has given the same erroneous evidence in the earlier section 97AA evaluation process conducted in this court. Shown to be in error in those proceeding (s) yet repeated in these proceedings. It has therefore been incumbent on the applicant it seems to demonstrate that he (Counsel’s expert) is still (emphasis added) wrong .Thus the manner in which these proceeding is being conducted with respect to the applicant is “guilty until proven innocent” or worse a ‘double jeopardy’ situation where having been proven innocent is again required to prove innocence “without a shred of new evidence being put forward by the accuser.”
23. The manner in which the Council’s expert has dealt with this material we say is at best incompetent at worst criminally duplicitous on the basis of knowingly attempting to disguise and repeat (emphasis added) a known or ought to be known falsehood(S) for instance FSR, overshadowing, privacy, heights etc.

Although it will, later, be necessary to deal extensively with various aspects of Mr Nash's evidence, this is the appropriate point to address Mr Ross’s broad submission that Mr Nash's evidence was so inaccurate and/or incompetent that it should be rejected.
I do not intend to do as Mr Ross proposes I should.
Whilst it is correct that, on several matters involving spatial calculations or relationships (such as with respect to floor space of the uppermost level-discussed more detail later-or overshadowing impact on 6 Bayview Street), Mr Ross obtained significant concessions from Mr Nash that assisted the applicant's case, I do not consider that the extraction of these concessions infected the totality of his evidence in the fashion suggested by Mr Ross.
As I have earlier observed, Mr Nash was in the witness box for eight full or part days and was under cross-examination by Mr Ross during a considerable portion of that time. Mr Ross's cross-examination style, not unsurprisingly for a lay advocate without extensive courtroom experience in such forensic processes, was aggressive and, at times, couched in inappropriate and offensive terms directed to Mr Nash. Although it was obvious to me observing Mr Nash that, from time to time, he bristled in response, my observation of him was that, throughout his evidence, he gave his evidence dispassionately and in a fashion entirely consistent with observing the requirements of the expert witness code of conduct.
At no time did I consider that he appeared to adopt any advocacy role on behalf the Council's vision. Indeed, on one significant matter, that of whether or not the lowest habitable level in the dwelling would remain potentially capable of being established as a separate occupancy, Mr Nash's responses to questions from me concerning the form in which that level would be configured after the removal of the kitchen in the north-eastern corner that such a conclusion would not then be appropriate, was subsequently expressly disavowed by Mr Eastman on behalf the Council (as later discussed).
Although, in addition to concessions obtained from Mr Nash by Mr Ross, I have also concluded that it is not appropriate to adopt Mr Nash's interpretation of a particular definition in the LEP, this arises as a matter of statutory interpretation rather than one of professional planning expertise. Indeed, some might consider it ironic that, on the matter where I adopt Mr Eastman’s interpretation for the Council and reject that advanced by Mr Nash, the position advanced by Mr Nash is that which is vigorously embraced by Mr Ross (as it is in the applicant’s favour).
Overall, I am satisfied that Mr Nash gave his evidence as best he could - given the way these proceedings unfolded - and that he did so professionally and with appropriate regard to his obligations to the Court as an expert witness.

Irrelevant matters

In Mr Ross’s written closing submissions, he sought to make a series of allegations against the Council's staff suggesting that there was a campaign of harassment being waged against the applicant. I struck out the paragraphs of Mr Ross’s written submissions that were of this nature as they are entirely irrelevant to the process that I am undertaking.
At various times during the hearing, minor thematic flavours of this view also surfaced (for example with respect to restrictions imposed during the two site inspections).
The process of these proceedings and the outcomes that will flow if the works requiring to be undertaken to render the premises appropriate for issuing of a building certificate (see Schedule 1 to these reasons) are matters entirely related to the proper questions of structural adequacy and broad planning acceptability.
Matters of personal interactions between the applicant (or Mr Ross) and the Council and its officers are not part of that process and are irrelevant in these proceedings.

Care with Mr Ross’s submissions

Later in my discussion of two specific items requiring to be dealt with (the lift/lift well and the “garden bed” at the western end of the uppermost level) I set out, in some detail, the factual position with which it is necessary to deal together with the submissions that Mr Ross has made on each of these matters.
With respect to the first of these matters, Mr Ross's comments and submissions about the lift/lift well need to be seen in the context of the detail I set out later on this matter. His submissions are, in my view, the first, major instance where he has been prepared to make a submission self-evidently at variance with the truth, in order to advance the interests of his client.
However, I am satisfied that the various positions adopted by Mr Ross in his various oral and written submissions do not permit me to make any credible finding about the existence or otherwise of a lift in the lift well as at the date I reserved my decision. Fortunately, as things have unfolded in this respect, it has not been necessary to do so.
With respect to the “garden bed” at the western end of the uppermost level, I have concluded, for the reasons detailed in my discussion on this aspect of the structures on the site, that that which purports to be this partially constructed and soilless “garden bed” is, in fact, a sham. I have also concluded that one element observed during the site inspection (the blueboard “retaining structure” on the western uppermost deck) had been constructed in a deliberate attempt to deceive the Court.
Mr Ross's submissions about that “garden bed” need to be seen in that context. His submissions are, in my view, a second instance where he has been prepared to make a submission self-evidently at variance with the truth, in order to advance the interests of his client.
As a consequence, it is necessary to treat Mr Ross’s submissions on such matters with a deal of care.
However, I wish to make it expressly clear that, although Mr Ross is clearly the guiding mind behind the structures that have been erected on-site, I have, throughout the proceedings:

treated him as the agent representing the applicant;

treated him, for procedural fairness purposes, as if he were a self-represented applicant;

avoided taking any judgmental attitude that might found any suggestion I have based any aspect of my decision on questions of moral turpitude. Indeed, for example, on 15 October (Transcript 15 October 15 page 31 lines 27 to 35), I observed:

SENIOR COMMISSIONER: Let me indicate this. There is a number of things I need to say, in no particular order. First, on reflection, I have concluded that whether or not Mr Ross and, or Ms Chami are in breach of orders of the Court with respect to the carrying out of works on the site, that is not a matter to which I should have regard in these proceedings, nor is it a matter that requires my involvement in any sense in formally drawing that position or my suspicions about that position to attention elsewhere. If that matter needs to be dealt with further, that is a matter for the respondent in these proceedings and not one requiring my initiation.

I have avoided any shifting to the applicant of any responsibility for any inadequacies or inappropriateness in Mr Ross's comments or any culpability for inappropriate (occasionally bordering on abusive) language used by Mr Ross to Mr Nash.

The issue of past conduct

One of the matters pressed by the Council as a basis for requiring works to be undertaken to prevent future uses not contemplated by the 2008 development consent was what the Council says is the persistent and wilful pattern of past behaviour of continuing to build elements of the development on the site that were significant departures from that which had been approved.
As I understood this submission, it was put in the context that, although he was no longer the owner of the site, Mr Ross was, in the Council's view as set out in its Statement of Facts and Contentions, the partner of the present owner of the site and that Mr Ross remained the guiding mind controlling any and all construction activity that has in the past and would in future be undertaken on the site. As a consequence of this, the Council proposed that I should expressly take into account this past conduct in assessing the likelihood of any requirements that might arise from these proceedings actually being met by the applicant.
Not surprisingly, Mr Ross rejects this approach.
The appropriate position for me to take has been long settled. Commencing with the decision of the Full Court of the Supreme Court of South Australia in Kouflidis v Salisbury City Corp (1982) SASR 321; (1982) LGRA 17, the position has always been clear since then that a consent authority granting an approval for a development subject to conditions is required to assume that those conditions will be obeyed. Past conduct is not a relevant consideration in a merit assessment process; any such issues are confined to enforcement through different legislative mechanisms (and in jurisdictions not able to be exercised by Commissioners of the Court). Bignold J in Ireland (No 1) from (86) made it clear that Kouflidis was equally applicable in circumstances where there was an application for a building certificate accompanied by an application for consent to use such structure as was the subject of the building certificate application.
In Jonah v Pittwater Council [2006] NSWLEC 99, (2006) 144 LGERA 408, Preston CJ traced the continuing line of authority from Kouflidis and confirmed that that line remained good law in New South Wales.
In Jonah, His Honour also made it clear that the question of the impact of some past unapproved activity (particularly if it were to be a continuing activity) is a matter able and appropriate to be taken into account as a factor in undertaking an assessment of the appropriateness of either regularising that activity or granting consent to some further activity where the unlawful activity might well compound or add to in some fashion the impact of the activity for which consent is sought.
As will be seen at the later relevant portion of this decision, this is a matter relevant (at least in part) in my consideration of the undercroft area at the rear of the lowest habitable level of the dwelling.

The plans in evidence

There were three sets of plans in evidence. Although, in some instances there were more than one copy of these plans (as they were used for the purposes of marking various elements), the unmarked base documents were:

The plans for which Development Consent 325/07 was given in 2008 (Exhibit R);

The plans that supported the s 96 modification application dealt with by Dixon C (Exhibit 4 Appendix 4); and

This issue was canvassed in the evidence of Mr Turrisi and the joint report of Mr Turrisi and Mr Nash in the proceedings before Dixon C. In his statement of evidence in those proceedings (Exhibit M in these proceedings) Mr Turrisi did not specifically deal with this point. His discussion of the northern path was in the following terms (page 4 at 10. Contention 3):

The proposal does not provide for a new double garage towards the rear of the property. The development provides for one driveway. The concept landscape plan shows soft landscaping to the rear section and additional landscaping can be provided along the path, being the old driveway to prevent any future connection. In addition, Council can impose appropriate conditions in terms of curb and guttering to ensure that the development only retains a single crossing.

In the joint statement before Dixon C (Exhibit K in these proceedings) Mr Turrisi and Mr Nash agreed that the gating proposal suggested by the Council was appropriate. The relevant element of the joint report formed part of 2.2.2 and was in the following terms:

It was also agreed that the pathway along the northern boundary that leads from the footpath to the front door shall be 1.2 m in width, with the remaining area landscaped. It was also agreed that a masonry wall of 1.5 m in height, with a gate should be erected between the northern elevation and the side northern boundary and spring off in the area of the internal wall that separates the lift and storeroom.

On 19 November, Mr Eastman questioned Mr Turrisi on this point. Mr Turrisi indicated that he could not recall the underlying reasons for the agreement quoted above from the joint report (Transcript 19 November page 56 line 5).
Then followed a further exchange on this point (lines 7 to 23) in the following terms:

Q. Can I suggest to you that the reason was as to try and prevent a greater intensity of use by effectively having a second garage at the rear.
OBJECTION. LEADING. QUESTION ALLOWED
Q. Do you need me to state the question for you again, Mr Turrisi?
A. No, but looking at the plans and trying to recall, it may have been just lent from a visual privacy and acoustic privacy. That's the only reason why I could recall maybe why we agreed.
Q. Surely narrowing the ability to access that rear
OBJECTION. LEADING
SENIOR COMMISSIONER: I think you're running dangerously close to trespassing in what might have been the discussions in the joint conference. I'm not going to permit that. You've gone as far as you can.

In light of this, Mr Turrisi’s evidence on this point provides no assistance in my evaluation.
However, in addition to the agreed s 96 modification proceedings position of the experts of the appropriateness of this wall and gate (which will have the effect of ensuring that this pathway cannot be used for vehicle access), there is a further reason why this should be the case - a reason unrelated to issues of approval and potential acoustic impacts (to be ameliorated, if they were to occur from vehicles or human activity in the undercroft as dealt with in the preceding section). I am satisfied that vehicle access up this side setback could not be appropriate in its present configuration because of the present lack of separation available between any driveway that might be installed in lieu of the present pathway and what is the sole pedestrian access to the dwelling, there being no pedestrian access along the southern boundary.
If there were, at some time in the future, to be garaging in the undercroft (a matter about which I express no opinion as such a proposal is expressly disclaimed by the applicant in these proceedings), there would need to be consideration given to proper separation between any driveway and a pedestrian access to the front door at least.
Whilst this is not, in itself, a matter that I need to take into account in these proceedings as it was not a matter that was dealt with in the evidence (and, as a consequence, I give it no weight in my adoption of the conclusion of Mr Nash and Mr Turrisi), it is a matter that merely warrants being noted as providing comfort that the course proposed is the correct and appropriate one.
To ensure that vehicle access is effectively denied up the northern setback, the additional wall and installation of a 1200 mm wide gate as advocated by Mr Turrisi and Mr Nash in the s 96 modification proceedings is the appropriate protective measure.
I am not satisfied that a gate of 1500 mm in width would necessarily be sufficiently narrow to create the necessary barrier effect. Indeed, it is at least a potential outcome that a gate of 1500 mm in width or greater, if removed, could create an aperture that would permit some vehicle access to rear of the dwelling including to the undercroft.
As a consequence, I have incorporated in Schedule 1 a requirement that the second wall be constructed with an aperture of a width to accommodate a gate of 1200 mm in width with that gate to be installed. Whether or not the applicant wishes to leave the walls as raw brick (as is presently the case with the wall element currently erected as shown in the photograph) or the applicant wishes to render and paint the wall elements in a fashion consistent with the treatment of the remainder of the dwelling is a matter for the applicant as is the nature of the gate to be installed.

The preferred statutory path

There are two options, potentially available, as prerequisites to my issuing a building certificate for any aspects of the as constructed elements of the dwelling where I have concluded that the two tests set out by Bignold J in Ireland No 2 at [37] are able to be satisfied. The first path is that which is available utilising the provisions of s 149D of the Act. This provision is in the following terms:

149D Obligations of council to issue building certificate
(1) The council must issue a building certificate if it appears that:
(a) there is no matter discernible by the exercise of reasonable care and skill that would entitle the council, under this Act or the Local Government Act 1993 :
(i) to order the building to be demolished, altered, added to or rebuilt, or
(ii) to take proceedings for an order or injunction requiring the building to be demolished, altered, added to or rebuilt, or
(iii) to take proceedings in relation to any encroachment by the building onto land vested in or under the control of the council, or

(b) there is such a matter but, in the circumstances, the council does not propose to make any such order or take any such proceedings.

(2) If the council refuses to issue a building certificate, it must inform the applicant, by notice, of its decision and of the reasons for it.
(3) The reasons must be sufficiently detailed to inform the applicant of the work that needs to be done to enable the council to issue a building certificate.
(4) The council must not refuse to issue or delay the issue of a building certificate by virtue of the existence of a matter that would not entitle the council to make any order or take any proceedings of the kind referred to in subsection (1) (a).
(5) Nothing in this section prevents the council from informing the applicant of the work that would need to be done before the council could issue a building certificate or from deferring its determination of the application until the applicant has had an opportunity to do that work.

Of particular relevance are subsections (2), (3) and (5). These, effectively, enable me to set out a path which, if satisfactorily followed would lead to me being satisfied that, at that time, a building certificate might be appropriate to be contemplated and the scope of any orders necessary and appropriate to attach to that certificate could be considered in light of the state of the building at that time.
The alternative path is to proceed directly to the issuing of a conditional building certificate by utilising the powers given to the Court through this appellate process by s 149F of the Act. This section is in the following terms:

149F Appeals with respect to building certificates
(1) An applicant:
(a) who is aggrieved by a council’s refusal to issue a building certificate, or
(b) who is aggrieved by a council’s refusal to issue a building certificate within 40 days after:
(i) the date of application for the certificate, or
(ii) if the applicant receives a notice under section 149C to supply information, the date on which the information is supplied, whichever is the later, or

(c) who receives a notice under section 149C to supply information,
may appeal to the Court.

(2) The appeal must be made within 12 months after the date on which the refusal is communicated to the person, the date on which the 40-day period expires or the date of the notice under section 149C, as the case requires.
(3) On hearing the appeal, the Court may do any one or more of the following:
(a) it may direct the council to issue a building certificate in such terms and on such conditions as the Court thinks fit,
(b) it may revoke, alter or confirm a notice under section 149C,
(c) it may make any other order that it considers appropriate.

For the purposes of adopting an approach founded, sequentially, on s 149D followed by a significantly later consideration of orders pursuant to s 149F, I would be exercising two distinct aspects of the jurisdiction available to me. In exercising jurisdiction pursuant to s 149D, I would be doing so pursuant to s 39(2) of the Court Act, the provision that has me stand in the shoes of the Council for the purposes of the Council's potential roles in that provision.
As earlier discussed, when I move to the powers given to the Court by s 149F(3)(c) of the Act, these are broader than those available to the Council and are solely able to be exercised by the Court.
I am satisfied that the combined approach of moving, first, pursuant to s 149D followed by a period within which the applicant can comply with those matters required pursuant to that provision and then (and only then) moving to the more expansive power pursuant to s 149F(3) is an approach that permits a more finely calibrated response to the matters for which I have concluded it is appropriate to issue a building certificate than simply leaping to a s 149F(3) approach.
In adopting this approach, particularly given the extensive litigation history concerning these building works and the desirability of limiting any future potential litigation, I am mindful of the desirability of bringing finalisation to disputation (if possible) between Mr Ross and the applicant, on one hand, and the council on the other.

Conclusion

Mr Ross said in his closing written submissions (at para 34):

Whilst it has also been demonstrated thus far, prima facie, solely through Mr. Nash’s evidence that all of ‘the disputed changes’ whilst not only being numerically compliant with all of the controls, have been shown to be undeniably an improvement or ‘at least as good as” what was approved in respect to its impact on the neighboring amenity and /or against any measurable standard or performance criteria.

I accept that a number of the changes are either trifling in impact, neutral or beneficial (as is demonstrated by the extent of the matters to which the Council takes no exception – see Appendix B). However, other aspects of that which has been constructed in a fashion not consistent with the 2008 development consent plans are not able to be so categorised but require works to be carried out before they could be included in any building certificate.
I have concluded that, subject to the satisfactory completion of the works that are detailed in Schedule 1 to this decision, a building certificate is capable of being given to the building that will be in the form resulting from those works. The works required in Schedule 1 are comparatively limited and, in summary, comprise:

Acoustic protection of the southern neighbour from potential noise impacts from the undercroft area;

Completion, in a permanent fashion as described in Schedule 1, of the garden bed on the western deck at the uppermost level in fashion that replicates the garden bed at this location provided for in the 2008 development consent (complete with appropriate landscape planting within the garden bed) with the area beyond the outermost perimeter of that garden bed thus being rendered non-trafficable.

Replacing with masonry the infill panels below the windows on the eastern façade of the bedrooms on the uppermost level;

Removal of the kitchen in the north-eastern corner of the lowest habitable level with the removal being carried out in a fashion to prevent re-instatement of a kitchen at this location.

Confirmation that the uninspected lift well aperture coverings at the middle and upper levels of the dwelling are adequate;

Installation of a permanent gate structure and gate on the northern pathway to the east of the front door; and

Completion of the powder room on the lowest habitable level.

There are a number of further matters that should be made expressly clear with respect to these conclusions. They are:

The outcome that I have considered appropriate as rendering the building capable of being given a building certificate is a package in its entirety. That which is set out in Schedule 1 is not intended to be a menu from which the applicant might make some limited selection;

The conclusions set out in this decision have been reached on the basis that, within the period allowed for the completion of the work set out in Schedule 1, no further works departing from the 2008 development consent (and being works for which development consent would be required) other than the works set out in Schedule 1 are carried out to or within the building;

Whether there is or is not a lift presently installed in the lift well, any building certificate that may be issued as a result of these proceedings will not encompass any lift in the lift well; and

The terms of the building certificate will be expressly confined to those matters that are within the built form or, as with the gate in the northern setback, are necessarily attendant upon and interlinked with the building. Any building certificate directed to be issued will expressly exclude matters outside the dwelling itself as disclaimed by the applicant, through Mr Ross, as not falling within the scope of the application (such as the front fence and the secondary retaining walls parallel to the front fence within the front setback).

Proportionality of the total outcome

I have earlier dealt with the question of proportionality in my assessment of a number of the elements where the Council had proposed that works should be undertaken prior to the issuing of a building certificate. Relevantly, each of my individual decisions was reached after consideration of such proportionality issues as were relevant.
Having now dealt with all of the issues requiring consideration, it remains, for reasons I earlier outlined, to consider whether the cumulative burden placed on the applicant to give effect to various individual works proposed to be required would be proportionally reasonable.
I have concluded that it would not be unreasonable to require implementation of all of those matters elsewhere set out and they will, in total, be incorporated in the schedule of works (Schedule 1) published after these reasons for decision in prior to the appendices to them.
Whilst I am aware that there will be a deal of financial cost as well as domestic disruption to the applicant in complying with that which is set out in Schedule 1, doing so, in my assessment, would not be disproportionate either in the context of the overall nature and cost of the works already carried out to the dwelling or the overall remaining high level of amenity that will be enjoyed by those residing in the dwelling on the site and that the reduction in amenity (to the extent that there might be any) would be minimal.
Although the costs of giving effect to Schedule 1 will be more than trifling, those costs are ones necessarily arising as a result of addressing the unacceptable consequences of the applicant (and her predecessor in title) departing from that which had been approved in the 2008 development consent plans.
In saying that, as I have earlier noted, these proceedings are in no way punitive and each of the matters contained in Schedule 1 arises as a consequence of the necessity to address adverse impacts of that which has, in fact, been constructed when compared to that which had been approved in the 2008 development consent plans.

Time for implementation

As the works that are set out in Schedule 1 are not ones requiring major construction works (contrary to the position that would have arisen had I concluded that cutting back any of the elements integrated with the main slabs below the middle and uppermost levels), I am satisfied that a period of six months is appropriate to be permitted for the finalisation of these works. In reaching that conclusion, I have made what I consider to be appropriate allowance for:

Possible wet weather disruptions;

Possible delay in the supply of materials;

Seeking quotes from and engaging appropriate tradespeople;

The need to schedule the timing of the works in a fashion sympathetic to what has been said to be the medical condition of the applicant (whilst acknowledging that, in making this allowance, I have no proper evidentiary basis supported by medical certificates for doing so); and

After having taken all those factors into account, then adding a further month to the five months that I consider would be necessary (with this additional month added as an additional contingency safety margin).

Where to from here?

I have set out in Schedule 1 the works that I have determined are required to be undertaken before I am prepared to direct that the Council prepare a building certificate for the dwelling.
As some of the matters requiring to be implemented by Schedule 1 are ones where it is necessary that I be satisfied that the work to be carried out has, in fact, been executed in accordance with the schedule, Schedule 1, therefore, also incorporates requirements for relevant certificates demonstrating appropriate compliance with the requirements of the schedule to be provided from the tradespeople who are to be engaged by the applicant to carry out these works. In one specific aspect, a survey report is also appropriate to be required as noted in the schedule.
The directions at the conclusion of this decision include the requirement for the filing and serving of those certificates and the survey report in sufficient time prior to the resumed hearing for the Council to consider whether or not it might wish to subpoena any of those providing any of these certificates or survey report to give evidence.
At the end of the six-month period I have allowed for the completion of the works in Schedule 1, a further inspection is to be undertaken to enable me to be satisfied that those works have been carried out and that a direction for the issuing of a building certificate should be made. I would anticipate that that inspection might take several hours.
Following that inspection, as I indicated during the course of the final phase of the hearing (transcript of 21 November) a further short hearing should follow, that day, to enable the parties to make submissions about what orders (including any ongoing compliance orders) might be considered to be made by me pursuant to s 149F(3)(c) as part of orders directing the Council to issue a building certificate.
In that context, it is appropriate that the applicant be provided with notice of any enduring conditions that the Council might propose be so ordered so that the applicant has an opportunity to respond to them. Similarly (although the event is, perhaps, unlikely), the applicant is to be provided with the opportunity in the timetable I propose to set to advise the Council of any such orders that the applicant might propose or, more likely, any objections and/or changes the applicant proposes to any order proposed by the Council.

In each instance, any notification of proposed orders is to be in the form of a table setting out the terms of the proposed order in one column and, in a second column, a short summary of the reasons why it is said that that order is appropriate.
Finally, in order to provide the applicant with the opportunity to seek a variation to the timetable or to refine the detail of the requirements in Schedule 1 (although, expressly, excluding the opportunity to re-agitate any of the broad matters of substance contained in or underpinning Schedule 1) it is appropriate to grant the parties (although primarily for the potential benefit of the applicant) liberty to relist the matter before me after the expiry of three months from the date of this judgment. Any exercise of the liberty to relist is to be subject to the condition attaching to that liberty in the relevant direction set out below.
Finally, against the eventuality that the process of submissions concerning the terms of any proposed orders suggested to be made pursuant to s 149F(3) might take longer than might ordinarily be anticipated (as turned out to be the case in the principal hearing where the originally anticipated three days extended to twelve), the directions set a reserve day on the day following the site inspection to be available, if necessary, to accommodate any extension to the hearing concerning possibly proposed orders.
I therefore make the following directions:

The matter is set down for a further hearing before me on 27 and 28 July 2015;

The hearing is to commence with a site inspection at 9.30am on the first day returning to Court at 12 noon on that day;

Should the respondent propose that I make any orders pursuant to s 149F(3)(c), the respondent is to file and serve a schedule of the proposed orders together with a short summary of reasons in support of each proposed order by the close of business on 26 June 2015;

Any certificate or survey report for works carried out as required by Schedule 1 is to be filed and served by the applicant by the close of business on 10 July 2015;

If the applicant proposes any ongoing conditions pursuant to s 149F(3), the terms of those ongoing conditions and a short summary of the reasons for each are to be filed and served by the close of business on 10 July 2015;

The applicant is to file and serve, by the time specified in the preceding direction, a schedule indicating whether or not she agrees to the making of any order proposed by the respondent in any schedule of orders filed and served by the respondent pursuant to these directions or proposes any amendment to any of them and, if there is any such objection or proposed amendment, identifying the proposed order to which objection is made and/or setting out any amendment proposed together with a short summary of the reasons for that objection or amendment;

If the applicant proposes any orders or proposes any amendment to and/or deletions of any order proposed by the respondent pursuant to (3), the respondent is to file and serve by the close of business on 17 July 2015 a schedule indicating whether it agrees with any such proposed order or changes and/or deletions to any order proposed by the respondent and, if not, the reasons for that disagreement;

Liberty to either party to relist before me on or after 4 May 2015 on one week’s notice to the Court and the other party (with the relisting party to file and serve a summary of not more than one page outlining the reasons for the relisting at the time of requesting the relisting).

Retention of exhibits

As it is not usual to return exhibits in proceedings such as these until orders reflecting the final outcome have been made, I proposed to retain all the exhibits tendered to date. Any further exhibits that may be tendered during the course of the resumed hearing at the end of July will become additions to the exhibit list already established in the proceedings.

Tim Moore

Senior Commissioner

********

Schedule 1 and Appendices A - G (3.01 MB, pdf)

Amendments

27 January 2015 - Schedule 1 heading amended

Code references removed from paragraphs 118, 243, 247, 274, 281, 292, 414, 480

Decision last updated: 27 January 2015

Medium Neutral Citation:	Chami v Lane Cove Council [2015] NSWLEC 1003
Hearing dates:	14, 15, 18, 20 - 22 August; 14 and 15 October; 14, 19 - 21 November (written submissions in reply – 24 November)
Decision date:	23 January 2015
Jurisdiction:	Class 1
Before:	Moore SC
Decision:	Findings to set out a schedule of works (Schedule 1) that are necessary to be undertaken prior to any issuing of a building certificate. The matter is adjourned until 27 July 2015 to permit the applicant to give effect to Schedule 1 to this decision. Directions are set out at the conclusion of the reasons for decision to provide an appropriate procedural regime to be followed to permit finalisation of this matter at a resumed hearing commencing on 27 July 2015.
Catchwords:	BUILDING CERTIFICATE: process for determining appeal; works required to render issuing a certificate appropriate DEVELOPMENT MERITS: structural adequacy; amenity impacts on neighbouring property – overlooking, overshadowing, acoustic impact; bulk and scale REMEDIES: reasonableness; proportionality PRACTICE AND PROCEDURE: representation by an agent
Legislation Cited:	Civil Procedure Act 2005 Environmental Planning and Assessment Act 1979 Evidence Act 1995 Land and Environment Court Act 1979 Land and Environment Court Rules 2007 Lane Cove Local Environmental Plan 1988 Lane Cove Local Environmental Plan 2009 Lane Cove Development Control Plan 1988 Lane Cove Development Control Plan 2009 State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 Uniform Civil Procedure Rules 2005
Cases Cited:	Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 Botany Bay City Council v Premier Customs Services Pty Ltd [2009] NSWCA 226; (2009) 172 LGERA 338 Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 Griffis and anor v Tweed Shire Council [2011] NSWLEC 1126 Jonah v Pittwater Council [2006] NSWLEC 99, (2006) 144 LGERA 408 Kouflidis v Salisbury City Corp (1982) SASR 321; (1982) LGRA 17 Ireland v Cessnock City Council [1999] NSWLEC 153; (1999) 103 LGERA 285 Ireland V Cessnock City Council [1999] NSWLEC 250; (1999) 110 LGERA 311 Lord v Manly Council [2010] NSWLEC 1223 Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705 Mineral Wealth Pty Ltd v Gosford City Council [2003] NSWLEC 153; (2003) 127 LGERA 74 Minister for Immigration and Citizenship v Li [2013] HCA 18 Moto Projects (No 2) Pty Ltd v North Sydney Council [1999] NSWLEC 280; (1999) 106 LGERA 298 Ross v Lane Cove Council [2012] NSWLEC 1364 Ross v Lane Cove Council [2014] NSWCA 50 Segal & Anor v Waverley Council [2005] NSWCA 310; (2005) 64 NSWLR 177 Sullivan v Civil Aviation Safety Authority [2014] FCAFC 93 Taipan Holdings Pty Ltd v Sutherland Shire Council [1999] NSWLEC 276 Thrasyvoulou v Secretary of State for the Environment [1990] 2 AC 273 Windy Dropdown Pty Ltd v Warringah Council [2000] NSWLEC 240 Zhang v Canterbury City Council [2001] NSWCA 167; (2001) 51 NSWLR 589; (2001) 115 LGERA 373
Texts Cited:	The Doctrine of Res Judicata, Spencer Bower, Turner and Handley, 3rd Edition The Doctrine of Res Judicata, Spencer Bower, Turner and Handley, 4th Edition, LexisNexis 2009
Category:	Principal judgment
Parties:	S Chami (Applicant) Lane Cove Council (Respondent)
Representation:	Counsel: Mr R Ross, agent (Applicant) Mr N Eastman, barrister (Respondent) Solicitors: N/A (Applicant) Pikes & Verekers Lawyers (Respondent)
File Number(s):	10398 of 2014