Chami v Lane Cove Council (No 4)

[2015] NSWLEC 176

Land and Environment Court

New South Wales

Medium Neutral Citation:	Chami v Lane Cove Council (No 4) [2015] NSWLEC 176
Hearing dates:	23 October 2015
Date of orders:	11 November 2015
Decision date:	11 November 2015
Jurisdiction:	Class 1
Before:	Moore AJ
Decision:	See orders at [53]
Catchwords:	BUILDING CERTIFICATE – works to render development acceptable in the streetscape – works carried out – certificate to be issued. BUILDING CERTIFICATE – no waterproofing certificate for powder room – certificate mandated by Building Code of Australia – element excluded from building certificate. COSTS – costs of reopening application – power to order specified gross sum costs – specified gross sum costs ordered for reopening proceedings. COSTS – costs of principal proceedings – no costs orders unless “fair and reasonable” in merit matters – costs reserved but if no application made within 28 days, no order for costs.
Legislation Cited:	Civil Procedure Act 2005 ss 56, 98(4)(c) Environmental Planning and Assessment Act 1979 s 149F Land and Environment Court Rules 2007 r 3.7
Cases Cited:	Chami v Lane Cove Council [2015] NSWLEC 1003 Chami v Lane Cove Council (No 2) [2015] NSWLEC 1206 Chami v Lane Cove Council (No 3) [2015] NSWLEC 144 Grant v Kiama Municipal Council [2006] NSWLEC 70
Category:	Principal judgment
Parties:	Sarab Chami (Applicant) Lane Cove Council (Respondent)
Representation:	Counsel: Mr R Ross, agent (Applicant) Mr S Griffiths, solicitor (Respondent)   Solicitors: N/A (Applicant) Pikes and Verekers Lawyers (Respondent)
File Number(s):	10398 of 2014

Contents

Judgment

Introduction

Further steps required from Chami No 3

Final site inspection

Costs of application to reopen

Conclusion as to costs of application to reopen

Costs generally

Conclusion

Orders

Annexure A

Judgment

Introduction

1. HIS HONOUR: This is the fourth decision in a series this year concerning construction that has taken place at a dwelling in Northwood. The construction that has been undertaken (by Ms Sarab Chami and by the immediate previous owner, Mr Raymond Ross, who was appearing as Ms Chami’s agent in these proceedings) has involved works that have differed significantly from the plans approved by Lane Cove Council (“the Council”) in the original development consent.

2. In January 2015, I gave a very, very lengthy decision on the primary merit and procedural matters requiring to be considered in Ms Chami's application for a building certificate for the works as carried out. That decision (see Chami v Lane Cove Council [2015] NSWLEC 1003 – hereafter Chami No 1) appended to it a schedule of works that needed to be undertaken as a consequence of my findings before a building certificate could be issued pursuant to s 149F of the Environmental Planning and Assessment Act 1979.

3. The principal finding concerned the unacceptable streetscape presentation of the combination of the concrete awnings and masonry balustrade of the balcony at the western end of the uppermost level.

4. Ms Chami subsequently applied to reopen the proceedings concerning three separate issues. In a decision given on 15 June 2015, (Chami v Lane Cove Council (No 2) [2015] NSWLEC 1206 – hereafter Chami No 2) I granted leave to permit reopening with respect to one matter (the balcony at the western end of the uppermost level) but declined leave on the other two matters.

5. After a further short hearing, I gave a decision on 3 September 2015 (Chami v Lane Cove Council (No 3) [2015] NSWLEC 144 – hereafter Chami No 3) concerning the extent of compliance with the required works arising from Chami No 1 and dealing with the structural safety issues permitted to be canvassed as a result of leave being granted to reopen concerning the balcony at the western end of the uppermost level.

Further steps required from Chami No 3

6. In Chami No 3, I reached the following conclusions, in summary:

• There had been satisfactory compliance with all but one of the matters where work had been required as a consequence of the schedule to Chami No 1;

• There had been, as acknowledged by Mr Ross, non-compliance with respect to the powder room at the lowest habitable level as tiling of this space had not been completed and no waterproof membraning certificate had been provided. I set out, in detail, the reasons why such certification was required (between [18] and [37] of Chami No 3); and

• On the basis of the extremely limited structural engineering evidence available, it was appropriate to permit the entirety of the uppermost level western balcony to be used as a balcony without the installation of a garden box provided the rendered masonry balustrade elements facing the street were removed and replaced with glass balustrading. The reasons why this was necessary in order to resolve the adverse streetscape impacts that I had determined existed in Chami No 1 were discussed between [43] and [82] of Chami No 3.

7. The “as built” streetscape presentation of the balcony can be seen below (photograph reproduced in Chami No 1 at [111]):

8. I also dealt with the conditions that the Council proposed should be attached to any building certificate to be issued. In doing so, I set out those matters that were to be incorporated in such conditions (between [83] and [107] of Chami No 3).

9. In order to progress the matter to finality, it was obvious that a further site inspection would be required and directions as to what was to occur prior to that site inspection were given at [131] of Chami No 3. Those directions were in the following terms:

1   Any party proposing any costs order that differs from that set out at [119] is to notify my Associate of the fact and file and serve by 4:30 pm on Friday 18 September the terms of such proposed alternative costs order together with a summary of submissions in support – such summary of submissions is not to exceed two A4 pages at 12 point font in length;

2   The applicant is to file and serve, by 4.30 pm on 16 October 2015, necessary certification demonstrating compliance of the works in the powder room with the relevant wet area provisions of the Building Code of Australia;

3   The respondent is to file and serve draft orders and a draft building certificate consistent with this decision by 4.30 pm on 16 October 2015;

4   The matter is set down for a further site inspection commencing at 8.00 am on 23 October 2015 for the purposes only of inspecting:

(a)   The powder room; and

(b)   Such works consistent with this decision as are carried out to the balcony at the western end of the uppermost level of the dwelling;

5   The matter will then be mentioned at 4.15 pm on 23 October 2015 for finalisation; and

6   Liberty to relist on two days’ notice if there is a material slippage in compliance with this timetable.

Final site inspection

10. On the morning of 23 October 2015, I undertook my final inspection of the site. The tiling of the powder room had been completed and, at the balcony at the western end of the uppermost level, the rendered masonry balustrade along the street side of the balcony had been demolished and replaced with a glass balustrade.

11. At the commencement of the site inspection, I indicated to Mr Ross and Mr Griffiths, solicitor for the Council, that I proposed to take a photograph from the street of the new streetscape presentation of the dwelling now that the glass balustrade had been installed. I indicated that I would provide a copy of the photograph to each of them and invite the tendering of the photograph. Mr Griffiths tendered the photograph (Exhibit 15). A copy appears below:

12. As can be seen (just) on the above photograph, the western end of the northern masonry balustrade of the balcony at the uppermost level of the dwelling has not had its render patched to finish it off where the street facing element of balustrade has been removed and replaced with glass balustrading as required by Chami No 3.

13. During the course of the hearing after we returned to Court at the conclusion of the site inspection, Mr Ross indicated that Ms Chami wished to remove a further element of this masonry balustrading along the northern side of the balcony (for a length of a single panel of glass balustrading – a distance of 1200 mm). He requested that I permit this to occur as part of the satisfaction of the relevant direction in Chami No 3.

14. This proposal was not objected to by Mr Griffiths.

15. I agreed and, verbally, amended the relevant direction in Chami No 3 to permit her to do so. This statement records that fact in the event that there is, at any time in the future, any dispute about whether or not that which will be the final outcome at the uppermost level is entirely consistent with my decision in Chami No 3.

16. For completeness, I should record that there are two factors which caused me to agree to this request.

17. First, as is clear from the photograph earlier reproduced showing the current state of the dwelling, the installation of the additional glass panel in substitution for the leading end of the brick balustrade on the northern side of the uppermost balcony will further soften the presentation of the dwelling in the streetscape.

18. Second, from my several inspections of this balcony, I am satisfied that doing so will not have any adverse privacy impacts on any neighbouring property.

19. I add that I was also satisfied that it was appropriate to do this within the scope of the present proceedings in order to ensure finality of merit issues between Ms Chami and the Council concerning this balcony - rather than contemplating requiring some further application to be made to the Council to permit this minor and beneficial change to be made.

20. However, to be sure that the additional glass balustrading element was incorporated in the building certificate, I asked Mr Griffiths to assume that this would happen and prepare the final documentation (including the marked final plans) on the assumption that this had been done.

21. Mr Ross was directed, on behalf of Ms Chami, to file and serve within a fortnight of the date of the final hearing, photographs showing the installation of this panel, including one with a visible tape measure demonstrating the 1200 mm dimensions. Mr Griffiths did not demur at this being the appropriate way to deal with this construction finalisation element. The photos were provided as required and within the time required. Mr Ross also provided a street view of the dwelling after this additional glass balustrading had been erected. Although not evidence (but it goes to no determined issue), I reproduce below a copy of that photo to show how the dwelling now appears in its final, further softened street presentation.

Costs of application to reopen

22. The costs issue that arises in these proceedings, at present, is one that is confined to the interlocutory process whereby Ms Chami sought leave to reopen the proceedings after the relevant elements had been dealt with on the basis of the evidence that had been given or tendered up to the time of reserving my decision in late November 2014.

23. I also need to deal with the question of costs of the application to reopen. I do so because, on the reopening application, sitting (as I then was) as Senior Commissioner of the Court, I did not have jurisdiction to deal with costs issues. In Chami No 2, I dealt with the fact that Ms Chami was not prepared, through Mr Ross, to give an undertaking with respect to the costs of reopening (at [15]-[18]).

24. Chami No 1 set out at considerable length the notice given and the directions permitting Ms Chami to address the structural engineering issues potentially arising from the garden box shown on the development consent plans for the western end of the uppermost habitable level of the dwelling. The directions concerning the structural engineering issues were set out in in Chami No 1 at [181].

25. The development consent plan that clearly shows approval for a garden box of an extensive size is shown on the relevant extract of the plan for that level reproduced in Chami No 1 (at [477]). The increased dimension of that garden box as actually constructed is also shown in a planned extract in Chami No 1 (at [477]).

26. Also shown in Chami No 1 and discussed at some length are two photographs (at [498] and [499]) that show, clearly, the sham nature of the structure constructed at that level purportedly in response to that element of the plans. In Chami No 3, I describe what was observed at that location relating to tiling that reinforced my earlier conclusion that that structure was a sham (at [11]).

27. However, the plans, in their various iterations, have clearly shown an intention to have a garden box at that location and the decision in Chami No 1, after Ms Chami failed to provide any structural engineering evidence, simply addressed how the plans as approved by the Council were to be given effect to enable a building certificate to be issued.

28. In Chami No 3, I dealt with the question of costs between [108] and [118] setting out, at [119], the proposed costs orders that I then thought (subject to receiving submissions from the parties) would be appropriate to be made. Those draft orders were in the following terms:

(1) The applicant is to pay the respondent's costs, as agreed or assessed, for the application to reopen the proceedings;

(2)   The applicant is to pay half of the Council's costs, as agreed or assessed, for the hearing on 31 August and 1 September excluding any costs that may have been incurred by the respondent for the respondent's consultant town planner, Mr Nash, for attendance at or in preparation for those hearings.

29. Mr Ross subsequently filed written submissions objecting to the making of any such costs orders. It is not necessary to canvass his written submissions or those subsequently made, orally, at the further hearing on 23 October 2015 after the final site inspection earlier that day.

30. Mr Ross's costs submissions clearly misunderstand the role of the Council as the respondent in these proceedings. Although the Council has a responsibility to act as a model litigant, that does not put any duty on it to proactively lead evidence, particularly expert evidence at its own cost, in order to rectify deficiencies in Ms Chami’s case.

31. After receiving and reading Mr Ross's submissions on costs, I had my Associate communicate with Mr Ross and Mr Griffiths in the following terms concerning costs:

His Honour has asked me to advise you that, as he has received submissions from Mr Ross on behalf of Ms Chami opposing the making of any costs order in the proceedings and has also not received any proposal for any alternative costs order from the Council, his Honour will deal with the question of costs at the hearing on 23 October at 4:15 PM.

It is his Honour’s view that, in order to avoid any further protraction of the proceedings, if his Honour is to make any costs order, it would be preferable for that to be made as a lump sum order.

His Honour also considers that it is desirable, to enable him to deal with the issue of costs efficiently, that it would be preferable (if his Honour does not accept Mr Ross's submissions that there should be no costs order) that his Honour should have available to him, for his consideration, the following:

(1)   The amount that the Council says should be a lump sum costs order made, on an ordinary basis, reflecting the matters set out in paragraph 119 of his Honour’s judgement of 3 September (if such an order is to be made);

(2)   Any submissions that the Council might wish to make in response to Mr Ross' submissions on costs (maximum two pages); and

(3)   Any submissions on quantum that Mr Ross might wish to make in response to the lump sum estimate provided pursuant to (1) (subject to a limit of two pages).

The materials from (1) and (2) are to be filed and served by 4.30 PM on 9 October with any further material from Mr Ross pursuant to (3) to be filed and served by 4.30 PM on 20 October.

32. As a consequence of doing so, Mr Griffiths provided material on behalf of the Council including details supporting the calculation of the lump sum amount of costs incurred by the Council calculated in accordance with the restrictions on costs earlier set out from [119] of Chami No 3.

33. My decision in Chami No 1 was based on that evidence or lack thereof (in the latter, with specific reference to the absence of evidence put on by Ms Chami concerning structural engineering issues).

34. Despite the submissions by Mr Ross that there was no adequate opportunity to obtain expert evidence, these are to be disregarded in their entirety for two reasons. First, I am satisfied that sufficient time was available particularly as matters relating to the garden box were on notice to the parties since the first site inspection at the commencement of the hearings. Second, however, I expressly gave leave to Ms Chami to subpoena her original structural engineer to give evidence if this were to be necessary in the absence of any voluntarily attending expert in this discipline.

35. Mr Ross, as Ms Chami’s agent, was aware of the effect of granting this leave as the town planner that he had engaged, when he was the owner of the property, had been subpoenaed for the purposes of the earlier phase in the proceedings (as a consequence of that expert's apparent reluctance to attend, voluntarily, and give evidence).

36. Mr Ross also clearly fails to understand (and his written and oral submissions on the questions costs reflect this) that the application to reopen was, in effect, a separate interlocutory proceeding within the framework of the overall structure of the hearing in determining Ms Chami’s building certificate application.

37. Costs in interlocutory proceedings are, not unusually, dealt with on a separate basis to any costs issues which might arise in the principal proceedings. That is the approach that I have taken in these proceedings.

38. In effect, Ms Chami sought to reopen either because she had not taken advantage of the opportunities available to her concerning structural engineering evidence within the framework of the specific directions to permit this outline in Chami No 1 or because she was dissatisfied with two elements of my decision in Chami No 1 (giving rise to the two unsuccessful aspects of her reopening application determined in Chami No 2).

39. In these circumstances, as is clear from the nature of the costs discussion that took place during the hearing leading up to my decision in Chami No 2 and the terms of my decision in Chami No 3 concerning costs, it is generally appropriate when a matter is reopened that the additional costs to be incurred by the other party are met by the party seeking leave to reopen.

40. That proposition is one which is ordinarily expected to be adopted in merit proceedings in this Court even though the “fair and reasonable” test applies concerning costs matters.

41. Equally ordinarily, the question of additional costs can be dealt with by the party seeking the procedural indulgence giving an undertaking to the Court to meet those costs.

42. As discussed in Chami No 2, Mr Ross was not instructed to offer such an undertaking on behalf Ms Chami. The question of costs was, therefore, deferred for later consideration.

43. As earlier set out, I requested the Council's legal representatives to provide details of the quantum of costs that they said were involved as fitting within the proposed costs order framework set out in [119] of Chami No 3. Having been provided with that number ($11,591.70) and a detailed list of elements comprising the basis for deriving that amount, I am satisfied that the amount, itself, is not unreasonable.

44. Although, in the absence of agreements concerning their quantum, of costs are most frequently dealt with by the making of an order for costs as “agreed or assessed”, s 98(4)(c) of the Civil Procedure Act 2005 (“the Civil Procedure Act”) expressly provides a power in proceedings falling within the scope of that Act (as these proceedings do) for a decision-maker invested with the power to make costs orders (as I now am sitting as an Acting Judge) to make costs orders in a specified gross sum.

Conclusion as to costs of application to reopen

45. In light of the length of time that these proceedings have been running and the desirability of bringing finality to them consistent with the objectives for the “just, quick and cheap resolution of the real issues” in dispute between the parties (as mandated by s 56 of the Civil Procedure Act) and as the quantum of costs in the table forming part of the Council's submissions on costs is, in my opinion, not unreasonable, I do consider it appropriate to make a specified gross sum costs order in that amount. There is no proper reason advanced by Mr Ross as to why the usual position should not apply.

46. I also consider it appropriate, consistent with ensuring finality between the parties (and, as I have accepted the amount set out by the Council, there can be no issue of independent assessment being required), to make the payment of this amount a prerequisite to the issuing of the building certificate by making the time within which the Council is to be required to issue the building certificate contingent on Ms Chami satisfying this costs order. As a consequence, the Council will be required to issue the building certificate within 14 days of payment by Ms Chami of the amount specified in the costs order for the reopening aspect of the proceedings.

Costs generally

47. As I indicated to Mr Ross during the course of the final phase of the hearings leading to this decision, such a costs order as determined was appropriate in the preceding section, would be confined to addressing the question of costs of the application by Ms Chami to reopen proceedings. Such a costs order would not deal with any issues which either party might wish to raise with respect to the costs of the overall proceedings.

48. As a consequence, as is ordinarily the case in merit proceedings in the Court, there would be no order concerning costs made at this point in the proceedings (unless the parties had agreed and wished to record that there be no order for costs).

49. However, it would be open to either Ms Chami or the Council to make a further application to me concerning broader issues of costs after, if they are contemplating doing so, considering that the terms of r 3.7 the Land and Environment Court Rules 2007 and guidance on such matters as has been given by the Court in decisions of these issues (see, for example, the decision of Preston CJ in Grant v Kiama Municipal Council [2006] NSWLEC 70).

50. To provide the last element in a framework for finality in these proceedings, the final order that I have made (before specifying the return of exhibits) provides that, unless any further application for an order for costs is made by a party within 28 days of the date of this decision, there is to be no order for costs in the proceedings.

51. Any application, if it were to be made, would need to be by way of Notice of Motion supported by the necessary affidavit.

Conclusion

52. I have concluded, for the reasons set out above, that a building certificate should be issued to Ms Chami in the terms appended to this decision within fourteen days of her paying the Council the sum of $11,591.70 – this sum being the specified gross sum costs ordered as the costs of reopening the proceedings.

Orders

53. The orders of the Court therefore are:

1. The appeal is upheld;

2. The Applicant is to pay the Respondent's costs of the reopening application in the amount of $11,591.70;

3. The Respondent is directed to issue a building certificate pursuant to s 149F(3)(a) of the Environmental Planning and Assessment Act 1979 within fourteen (14) days of payment by the Applicant of the costs in (2) in accordance with the Certificate set out in Annexure A hereto subject to the following conditions:

1. There shall be no alteration, variation or removal of works carried out pursuant to Schedule 1 of the judgment in Chami v Lane Cove Council [2015] NSWLEC 1003 of the Land and Environment Court dated 23 January 2015 (as varied by the further judgments of the Court in Chami v Lane Cove Council No 2 [2015] NSWLEC 1206 and Chami v Lane Cove Council No 3 [2015] NSWLEC 144 on 15 June 2015 and 3 September 2015, respectively) unless development consent is firstly obtained for the said alteration, variation or removal;

2. No second or separate kitchen facility shall be installed or used in the subject premises without further development consent theretofore; and

3. The undercroft area to the south of the dwelling shall not be further enclosed nor used for habitable purposes unless development consent is firstly obtained for the said enclosure or use;

4. Unless any further application for an order for costs is made by a party within 28 days of the date of this decision, there is to be no order for costs in the proceedings other than the order in (2); and

5. The exhibits, other than Exhibits A, F, R, W, 1, 3, 6 and 16, are returned.

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Annexure A - building certificate - 11 Nov 15 (101 KB, pdf)

Decision last updated: 12 November 2015