Chin v Lane Cove Council

[2008] NSWLEC 1366

Land and Environment Court

of New South Wales

CITATION:

Chin v Lane Cove Council [2008] NSWLEC 1366
This decision has been amended. Please see the end of the judgment for a list of the amendments.

PARTIES:

APPLICANT
Pinky Fung Ling Chin

RESPONDENT
Lane Cove Council

FILE NUMBER(S):

10073 of 2008

CORAM:

Hoffman C

KEY ISSUES:

Section 121B Order :- Remove an area of stencilled concrete paving for carparking in front garden, is a development application and development consent required.

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979
Land and Environment Court Act 1979
Lane Cove Local Environmental Plan 1987
Lane Cove Development Control Plan No. 6

DATES OF HEARING:

06/06/2008, 28/08/2008 and 29/08/2008

 
DATE OF JUDGMENT: 

12 September 2008

LEGAL REPRESENTATIVES:

APPLICANT
Mr P. Chin, Agent

RESPONDENT
Ms S. Brew and
Ms K. Law, solicitors
of Matthews Folbigg

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Hoffman C

12 September 2008

10073 of 2008 Pinky Fung Ling Chin v Lane Cove Council

JUDGMENT

1 This is a judgment in Appeal 10073 of 2008 between Chin and Lane Cove in respect of s 121(B) Order issued on 3 January 2008 to remove an area of stencilled concrete paving in the front yard of No. 11 Grace Street, Lane Cove.

2 The Order states;

“1. Demolish and remove the works identified as a stippled concrete slab that is attached to the front of the premises to the condition in which they were before the work was unlawfully carried out, all such restoration to be carried out to the satisfaction of the Council”.
A period of 28 days from 3 January 2008 was given for completion.

3 The appeal was in regard to the Orders only as there was no development application for the Court to consider on a merits basis in conjunction with the order.

4 The issues provided by the Respondent were that the applicant had no issue in regard to the legality of the order or the process of its issue. The applicant’s case was based on the fact that the order had no work to do as the subject paving either did not need council consent or had been granted council consent de facto because during its construction five council officers have been on the property at one time or another in July 2007 and no one issued a stop work order or told him that a development application was necessary for it. In fact the applicant alleges that at least one officer told him that it did not need development consent.

5 Mr Chin appeared as agent for the owner of the property. During the course of the hearing Mr Chin said that the pavement was needed to park four family cars and one trailer. As it is the pavement occupies most of the front yard. There is an existing plain concrete driveway on the western side of the property next door to No. 11A Grace Street, and the stippled new pavement lies between it and the side boundary with No. 13 Grace Street. There is about a 1.5 metre wide garden bed in the subject property along the common boundary with No. 13. Along the front boundary there is a garden bed about 1.4 metre wide at the drive entry tapering out to 2 metre wide near No. 13.

6 The original drive entry is about 3 metres wide, and the stippled concrete has widened it to about 5 metre within the 20 metre wide frontage. The pavement runs across the front yard of the house connecting with the front porch and the front walls of the house. The main part of the NEW concrete is about 15 m x 7.5 m with return areas each side of the front porch of about 4 m x 2 m.

7 There is no disagreement between the parties that the new footpath crossing from the street to the front boundary did receive approval from the council and has been constructed in accordance with the council requirements. The footpath crossing is 5 metres wide to match the on-site pavement. It is this footpath crossing that the council officers in summary said that they were talking about in the various conversations with Mr Chin.

8 The first council officer he spoke to in about April 2007 was Mr Shankar, the duty officer for enquires and his affidavit is in Exhibit 2. He said in his affidavit that he recalled a conversation with Mr Chin at the time at the council chambers and that Mr Chin asked if he needed a development consent for the driveway. Mr Shankar asked him where was it going and was told from the boundary of his property onwards. He asked Mr Chin if he had an existing carport or garage at the back of the property and was told yes, and he was told that driveway is going from the front boundary to the existing carport. In asking why a driveway was needed when there was already one, Mr Chin is alleged to have said that the existing driveway is not in good shape, is cracked and needs re-building, and Mr Shankar told him you don’t need a development application to re-do an existing driveway.

9 Mr Shankar went on to say that at no time did Mr Chin advise him that he also wanted a parking area sufficient to accommodate four cars, a trailer and a turning area that would require a large paved area in the front yard. He also said he was not shown any drawing or sketch to illustrate such a proposal and if he had any impression from Mr Chin that such was his intention he would have told him that a development application is required.

10 Mr Chin did not call Mr Shankar for cross examination of his affidavit. Mr Chin said his discussion with Mr Shankar was about the parking space and turning area for 4 cars and a trailer in front of the house.

11 In Exhibit 3 the affidavit of Killian Grennell a development engineer for the council said that his duties involved applications for driveway crossings and he had no recollection of the applicant discussing the need to construct a driveway to satisfy a turning circle for four cars and a trailer so that they would be able to park off the street. The affidavit said that if there had been a conversation in regard to those matters the applicant would have been advised to speak with the planning department as it was neither within his knowledge or position to provide assistance of such matters.

12 Grennell was not called for cross-examination. Mr Chin said this discussion with Mr Grennell did include the requirement for parking and turning of 4 cars and a trailer in front of the house.

13 The affidavit of Mr Szewcow was in Exhibit 4 and he is also an engineer and he provided engineering design for such things as footpath crossings. He had read the affidavit the applicant had sworn on 30 January 2008 and whilst unable to recall the exact date he did receive a telephone call from Mr Chin in regard to a driveway at his house and his need know what council permission is required. Mr Szewcow said he told the applicant that it would be necessary for an application for a driveway crossing from the Kerb to the property boundary across the footpath. He recalled saying words to the effect that he is unable to advise if any development consent might be required for the rest of the driveway, he only deals with crossings.

14 He did not recall any conversation with the applicant about the need for a turning circle in front of the house nor to increase the area of the existing driveway at that time. Mr Szecow said it was usual once the application is received that he would carry out three inspections of the footpath before and during and at the conclusion of the footpath crossing in order to ascertain the required levels and to check that it has been properly carried out. He had forwarded a letter to the applicant during that process on the 17 May 2007 in regard to those matters. Mr Szewcow recalled the second of the inspections for the form work of the footpath crossing before the concrete is poured. His attention was on that matter and could not be sure whether or not the pavement within the property had been constructed.

15 On his third inspection he only looked at the driveway crossing for the purposes of returning the bond in the event there is no damage to the footpath or roadway. He did not recall any details of that inspection.

16 Mr Szewcow was not called for cross-examination by the applicant. Mr Chin said he did discuss the need for pavement in front of the house for 4 cars and a trailer and a turning area.

17 In Exhibit 9 is an affidavit by Mr Maish, tree preservation officer of Council. Although he did not recall the exact date, he had been to No. 11 around June 2007 to check a complaint from No. 13 Grace Street about tree damage at the rear of No. 11. He made no notes of the inspection as he considered the tree did not have damage that warranted action. He did not speak to Mr Chin but did ask a bobcat driver on No. 11 to cease use of the public footpath due to likelihood of damage to street trees.

18 Mrs Cressey gave oral evidence. She said No. 11 used to be a nice Lane Cove brick bungalow with lawns and trees in the front yard. Now it is a carpark with one car in the carport and the other 3 and the trailer parked at the end of the pavement near her side boundary. They are started and revved up, stopped, driven in and out, at different hours of the day and night plus headlights at night. She claimed the drainage still came onto her land.

19 She said for her house extensions and driveway a development application had to be made and was approved. It was quite a detailed process.

20 In observing the works at No. 11 she was aware, due to her own application, of the need for a DA. She said she had complained to council on 3 occasions, twice about Mr Chin trying to cut down trees and once about the pavement on No. 11.

21 When cross-examined, she said on 2 July 2007 when Mr Maish came to No. 11, he did not tell her that the works had council consent. When asked if she had been notified of the alleged encroachment of her driveway on No. 11, she said there had been nothing in writing and the police had advised her to have no verbal contact with Mr Chin. When asked about Mr Mitry’s inspection, Mrs Cressey said due to her own dealings with council she knew he is a building inspector. When asked if he was a friend she said she had no friends at council.

22 In looking at Mrs Cressey’s photos of stormwater flowing onto her land, she agreed Mr Chin had drains on his side, but in heavy rain the pavement on No. 11 sheds so much water the drains overflow onto her land. Mr Chin showed photos of Mrs Cressey’s house front during rain and they showed her eaves gutters overflowing onto her own driveway and front garden.

23 In describing her new driveway she said it is only 3m wide between the front boundary and the carport. It is a small area compared to her front garden of about 200 sq m, she said. When asked about any encroachment on No. 11, she said the fence line the driveway was built along was an old fence built long before they bought No. 13.

24 When asked what was her complaint to council on 2-3 July 2007, she said it was obvious a carpark was being built in the front garden next door and there had been no notice of it. She could not recall the specifics of her phone call.

25 Mr Campbell is a student planner, and said on 2 July 2007 he was duty planner at Lane Cove and a call came in from a lady identifying herself as from No. 13 Grace Street. She said there were works going on involving the removal of a fence, a bank of earth against her boundary, preparation for concrete, removal of the existing drive gutter crossing and removal of trees on the street.

26 He went to No. 11 and saw it was as she said with concrete formwork in the front yard. He spoke to Mr Chin who wanted identification and no photos, so he went back to council to get his business card and authorisation.

27 Whilst at council, Mr Campbell spoke to a ranger whose name he could not recall, and was told there was a consent for a new gutter crossing and tree removal. He spoke to Mr Szewcow who confirmed that.

28 On returning to No. 11 he had a closer look at the formwork in the front yard and saw a box grate drain too. He remembered telling Mr Chin he needed a DA for the works in the front yard, and Mr Chin told him he had already been to council and Mr Shankar had said there was no need for a DA. Mr Campbell said he felt he could not pressure Mr Chin any more. Mr Chin asked him if he authorised the work. Mr Campbell said no he would not authorise it, but he could not stop Mr Chin if he intended to continue. Mr Chin told him he was pouring concrete the next day.

29 He recalled knocking on Mrs Cressey’s door and telling her he could not stop Mr Chin. He recalled the engineers arriving on site before he left. He said he talked to them about other matters than the works at No. 11.

30 He was asked what would he do if he thought the works were unauthorised. Mr Campbell said he would have told Mr Chin to stop, but that request would not have had any authority as he had no delegation for enforcement or serving notices. At the time he assumed it was exempt development.

31 When he returned to the office Mr Campbell said he thought he e-mailed colleagues because the ranger had said a number of planners had been involved. He did not ask Mr Shankar about the works. He left council in August 2007.

32 In Exhibit 5 was an affidavit by Mr Mitry who is a building surveyor and he said that he received on the 14 August 2007 an instruction from his manager to inspect No. 11 Grace Street, and that the reason was that the adjoining owner of No. 13 had made a complaint in relation to unauthorised works. He drove to the property and spoke to Mrs Cressey at No. 13 who stated a number of concerns about the concrete slab and the rainwater flowing off it and onto her property, removal of trees and shrubs, excavation and car noise.

33 Mr Chin submitted that Mr Mitry’s evidence is irrelevant to the appeal and should be disregarded because his involvement comes in August 2007 well after the pavement was authorised by council officers and finished construction. In effect Mr Chin said Mr Mitry is pre-empted because the pavement is authorised. I cannot accept that submission as Mr Mitry is the officer most involved in the service of the order the subject of the appeal.

34 Mr Chin or his family were not at home when Mr Mitry knocked on the front door on 14 August 2007. He then checked back at the council and found the approval for the existing carport on No. 11, the approval for the footpath crossing and the approval for tree removal in the front yard of the subject property and approval for standing construction plant to be permitted on the footpath during construction.

35 He returned later on another date and spoke to Mr Chin in regard to the new concrete slab which is alleged to be 180 square metres in area. He noted at the time that there was a drainage water pipe, apparently collecting water from grated drains in the slab. It exited from beneath the concrete slab adjoining Ms Cressey’s property and appeared to be unconnected to a collection tank or soakage pit.

36 In speaking to Mr Chin on that occasion, it was indicated to him that a Mr Campbell another council officer had inspected the form work and steel of the front yard pavement slab. Mr Mitry was told that Mr Campbell had said there was no problem prior to the concrete being poured. He was also told that an engineer and three other council officers had looked at the driveway.

37 Being told that, Mr Mitry said to Mr Chin that Mr Campbell is not the officer empowered to do engineering inspection and, due to the consents Mr Mitry had discovered, he said to Mr Chin the engineers inspection would only be in relation to the footpath crossing. Mr Chin said words to the effect that the slab had been approved and did not need development consent and that the slab was needed for the parking and the manoeuvring of four cars and a box trailer.

38 Mr Chin said at the hearing, because of the slope down from the street it is necessary to turn cars within the property and drive out in a forward direction so that drivers could see pedestrians on the footpath. The area for turning increased the area of the slab due to the need to be able to do so when other cars were parked on it.

39 On returning to the council Mr Mitry spoke to Mr Campbell who said that he had told Mr Chin any pavement greater than 25 square metres would need a development application. Mr Campbell also denied that he had inspected any steel reinforcement or form work for the on-site pavement as such is not is his duties as town planner, nor had he told Mr Chin that it was okay to pour concrete.

40 Another council officer Mr Perrett is a council ranger and he gave oral evidence in regard to his discussions with Mr Chin. He said, he recalled going to the property at No. 11 Grace Street, in answer to complaints from the owner of No. 15 Grace Street. It was in relation to damage to trees in the backyard of No. 11 and also changes of levels in the front yard. Later at council chambers, he spoke to Mr Campbell and suggested that he should inspect No. 11.

41 When Mr Perrett was on site he said he saw a bobcat lifting pavers in the rear yard near the back door of the house. He recalled that something had been done in the front yard before he got there but the bobcat was in the back yard. He said that the front yard appeared to have either compacted earth or road base in it.

42 Mr Perrett made contemporaneous notes in his log book in regard to property inspections and it was called for and produced at the Hearing. It read in part at 12:30 pm at No. 11 Grace Street he spoke with Mr Chin as foreman of the works in regard to the “vehicle crossing”. At 12:50 pm he spoke to Mrs Cressey at No. 13 however, he said she only asked why he had come. On 3 July 2007 he returned following complaint by Mr Lloyd Thomas at No. 15 Grace Street, regarding “driveway development” at No. 11. His notes said he advised Mr Thomas “that the works had been approved by council and did not require a development application under councils development control plan”. Mr Lloyd Thomas also asked about the construction site at No. 6 Grace Street, regarding the placement of building materials on public land, and Mr Perrett advised that he would look at that.

43 In cross-examination Mr Perrett said that the words “driveway development” in his report was the same development referred to earlier as a “vehicle crossing”. He did not recall seeing any pavement constructed in the front yard. He said he saw what appeared to be road base in the front yard. He did not say he had drawn any conclusion in regard to that bearing in mind the approval for tree removal. When asked about seeing the bobcat, Mr Perrett recalled Mr Chin telling him it was for related landscape works in the front yard, no mention of pavement.

44 When pressed in cross-examination about the term “driveway development” Mr Perrett said that, he had only checked on the drive crossing in the council records.

45 In saying to Mr Thomas that the works had council consent it could only have been the crossing he was writing about. In being put to him he had been to No. 11 on more than the occasions in his notebook, Mr Perrett said that was not quite accurate, he had been in Grace Street in regard to No. 6 Grace Street about the construction equipment and materials on the public footpath. He had said hello from across the street to Mr Chin, who was there on that occasion. When it was put to him that the word “works” in his notebook is plural and must mean more than just the footpath crossing, Mr Perrett said “works” is a generic term for “development”.

46 During his evidence Mr Chin alleged that new driveway construction in Mrs Cressey’s at No. 13 Grace Street had no development consent and that the depth of concrete there was well over 600 mm deep and therefore should have had development consent. He based this on having received no notice of an application for those works and presumed there was no consent.

47 Therefore he is concerned that he should be expected to obtain consent. Also the pavement in No. 13 according to his calculations would also be over 120 sq m in area.

48 He explained that the drain pipe that Mr Mitry had spoken about is now connected to a tank in the back yard, and that in any case there is a fence on the property boundary that would prevent water going from his side into No. 13. Also that his drainage works collect storm water from his pavement into the tank. He also put that in constructing the pavement he had provided wide garden beds as a buffer between his property and No. 13 in order to screen the pavement and any cars parked on it both from the street and the neighbouring property. In the construction of the new driveway at No. 13 it had no garden along the common boundary to provide similar screening. He said he is in dispute with No. 13, the Cressey’s, over their new driveway being partly over the boundary with No. 11.

49 Mr Chin also put that the provision of the pavement on No. 11 is of benefit to the other residents of Grace Street since it means that his four cars and trailer are parked off street, rather than some of them on the street. Grace Street, due to the construction worker cars and the new apartments on the uphill side of Grace Street, is generating considerable on-street parking both by night and by day that creates congestion given the narrowness of the carriage way.

50 He produced photographs showing the congestion both by night and by day, and including some photographs of trucks and mechanical equipment he said were related to works at No. 13 but were parked on the public footpath outside his own house at No. 11. He also produced photographs showing other properties in Grace Street and nearby which have as large or larger areas of pavement than his property.

51 The respondent put that these matters are matters of merit consideration which are not relevant to the consideration of the orders. Also there is still no development application before the council or the Court that would enable consideration of those matters. The respondent said that in the issues put in this case by the respondent the drainage matter was not raised and the council is satisfied on that question.

52 In turning to the legislation applicable the respondent had produced Exhibit 10 extracting the relevant statutes under the Environmental Planning and Assessment Act 1979 and the Land and Environment Court Act 1979 together with in Exhibit 1 the Lane Cove Local Environmental Plan 1987 and the applicable Development Control Plan No. 6 for exempt and complying development.

53 The respondent noted that under complying development it provides for paved areas, covering not more than 25 sq m that does not involve excavation or fill beyond 600 mm below or above the natural ground level, to be constructed as ancillary development in all zones except residential. The respondent says that in practice the council applies that control for complying development to residential as well as for other zones. This is a concession for residential zones because a strict interpretation of the ancillary development, which is described in the table to be landscaping, gardening, paving or the erection of minor structures, would require development consent even for one square metre in the residential zone.

54 Pavement being described as a structure or a work under the Environmental Planning and Assessment Act 1979 does require development consent unless there is an exemption which in this case does not apply. Therefore, the fact of the matter in the respondent’s submission is that development consent for the pavement in front of No. 11 Grace Street is required. An application had never been made for that pavement no matter what the applicant has put in regard to council officers on his property or during enquiries at council. That being the case there is nothing invalid about the issue of the order and it should be enforced. The only concession the respondent wishes to make is to extend the time for compliance in order to give Mr Chin more time.

55 Mr Chin’s evidence and submissions is that at no time did council staff, either at the time of his enquiries in April 2007, or at the time of inspections on or around late June and early July 2007, did any council officer tell him he needed development consent. He said given the fact that he had made all the other necessary applications as approved by council for the other works at his property, it is unreasonable to think that he would have not made application for the pavement had he thought development consent was necessary.

56 I asked Mr Chin had he looked at the legislation and what did he have to submit in that regard. He said it is irrelevant in his opinion.

57 The applicant in his reply to Fact and Contentions, Exhibit F, and Exhibits R and V mentions/photos of alleged council unapproved or “rubber stamped” approval of construction on other and adjoining sites as further reasons there should be no removal of his paving.

58 The applicant put that the area of the stippled concrete is about 120 sq m not 180 sq m alleged by the respondent in its Exhibit F. It seems from a rough calculation from the drawing in Exhibit A that the applicant is correct.

59 The applicant alleges the council has a double standard to his disadvantage, noting in particular a new driveway on site at No. 13 Grace Street where the concrete is hard against the common boundary with his property, and is more than 600 mm thick, plus a carport is erected with almost zero side setback. The applicant feels he has been victimised and a full judicial inquiry is needed. He alleges council officers are colluding with the owners of No. 13.

60 The respondent said there was no factual evidence that works on other properties did not have approval, and in any case those matters are irrelevant to this case that is specific to No. 11 Grace Street and whether it needed and did not have consent.

61 The respondent alleges in its Facts and Contentions that there was an agreement to remove parts of the pavement that would satisfy the council. The applicant says there was never agreement. There is a plan in Exhibit A that a consultant to the applicant prepared for discussion with the council. Mr Mitry had replied to it in Exhibit B Attachment O showing 4 extra areas he wanted dug up. The extra areas have never been acceptable to Mr Chin and so there was never any agreement, Mr Chin said.

62 The situation remains that Mr Chin called only Mr Campbell and Mr Perrett for cross-examination, and so the usual presumption applies that the other affidavits stand. Mr Chin provided his own affidavits that contradict the council staffers and when he was cross examined he maintained his position that he was not told a DA for the stippled pavement was required, and in addition that some council officers said he did not need a DA. That leaves the evidence of who said what to whom at a stalemate.

63 Mr Chin did provide statutory declarations from persons he employed on the pavement construction. They were Mr Frank Grabbi, Mr Adrian Schimanowsky and Mr Marcio Cunha.

64 The respondent objected to them as an earlier Direction of the Court required affidavits to be filed in time. At that stage of the case it was clear an adjournment was needed due to lack of time in the one day allocated, and Mr Perrett who the applicant wanted to cross examine was away on holidays. The adjournment would enable the respondent to call the authors of the statutory declarations but that was not done.

65 Mr Cunha is a building waste collector who only attested to the narrowness of Grace Street and with cars parked in the street it is difficult to manoeuvre trucks and therefore he supported Mr Chin being able to park his 4 cars and a trailer off the street.

66 Mr Grabbi is a bobcat driver and in summary his declaration said he was excavating and removing old brick pavers, tree roots and dirt in the front yard on 2 July 2007. He said he stopped work during visits by two different officers of council on that day, and after checking what he was doing, both told him to continue work and that complaints about the works were baseless.

67 Mr Schiminowsky is a concreter and his declaration said in summary:

• On 3 July 2007 around 10am a council officer arrived and had a discussion with Mr Chin. Mr Schiminowsky did not know what about, but at the end the officer said words to the effect it was about a nuisance complaint and he could continue the work.
• On the same day about 2.30pm another council officer, who he later found to be Mr Campbell, arrived with camera and measuring tape. The man took photos and measurements and had a discussion with Mr Chin that Mr Schiminowsky did not hear and then the man left the site.
• About 30 minutes later the man returned, identified himself to Mr Chin and carried out a detailed inspection of the formwork, the sand-gravel base, the drainage lines, the levels, the stencils etc. At the end of inspection the man told he and Mr Chin everything complied with council’s policies and work could continue. The officer had been told concrete was booked for 4 July.
• As Mr Campbell was leaving two council engineers arrived to inspect the footpath crossing. They approved the concrete pour for it, and stood with Mr Campbell looking at the works in the front yard and then all left.
• On 4 July the first “ half of the driveway had already been poured in the morning. Larry had a booking with council engineers to inspect the second half of the driveway crossing. At approximately 2.30pm two council engineers came to inspect……..and said that we can pour the next day”.
• “On 5 July, the second half of the driveway and the driveway crossing were poured. That completes the whole driveway works.”

68 The authors of the three statutory declarations were not called for cross-examination. Their declarations show a level of assumptions that could arise in a lay-person’s mind about what works the council officers were inspecting and what works were approved or not. It is not unreasonable for the men to think that if they were doing something wrong they would have been told to stop work. In the absence of a “stop work” they continued. However it was not their responsibility to know whether a development application and development consent were needed.

69 In coming to a conclusion on this appeal, I cannot escape the reality that the legislation is relevant and a development application and a development consent were needed for the extensive pavement in the front garden of this detached suburban house.

70 The use for which the pavement was laid would be an important consideration in any development application. None of the “comparable” driveways put forward by Mr Chin appeared to be for the parking and the turn-around of 4 cars and a trailer within the street front gardens of the related houses. The extra paved area needed to turn a car around on-site when other cars are parked adds a little to the paved area. In measuring the plans in Exhibit A, there appears to be considerably more area than needed. Perhaps this is why the council letter in Exhibit B Attachment O required up to about half of the pavement to be removed.

71 Another “extra” area of pavement is an un-stippled area around the existing front porch. Mr Chin said it had to be paved because the stippled area slopes down to and floods the garden that was there during rain, and floats mud onto the porch tiles. This area when paved provides a convenient stormwater collection point for drainage grates.

72 Mr Chin said he is not prepared to take up any of the concrete because cutting the slab would expose steel reinforcement that would rust and nullify the warranty he has on the slab.

73 I might say there was no oral evidence or submission in regard to why the pavement and cars could not be at the rear of the house. But that is another matter that would have been considered in any development application.

74 The respondent submitted that since this appeal is only about the issue of the s 121B Order, the questions before the Court are;

• Did the pavement need development consent.
• Did the pavement get consent
• If it needed consent the council officers have no delegation of power to give consent when there has been no development application.
• Whether the Order has been properly issued.
• Whether the Order should stand as issued, except with an amendment to extend the time for compliance.
• Whether the Order should be changed to require only part removal of the pavement.
• Whether the Order should be revoked.

75 In simple terms, I have already concluded:

1. The pavement did need development consent.
2. The pavement does not have development consent because the council officers do not have power to approve works when there has been no development application.
3. There is no evidence that the process of issuing the Order is invalid in some way, it is the consequences of the Order that are in dispute.

76 This leaves the final question for me to determine as whether the Order should stand as is (with the time extension), or an alternative order made, or should the Order be revoked.

77 The respondent also submitted in opening, that if the Order stands or an alternative made, and the applicant still has a grievance of council officers misdirecting him, then that is a matter that can be determined in another Court, not this Hearing.

78 The Lane Cove DCP No.6 has categories for Exempt Development and Complying Development. A reading of it shows that external pavement does not occur in the Exempt Development list although there are a lot of items that are ancillary to residential use such as: pergolas, BBQ’s, awnings, air conditioning units, bird aviaries, antennae, play equipment. So it would appear pavement is a deliberate exclusion from the exempt category even in residential zones.

79 Pavement does occur in the Complying Development list so long as it is in a zone other than residential, and is less than 25 sq m in area, and does not involve excavation or fill in excess of 600mm of natural ground level. Complying Development still needs certification by Council or an Accredited Certifier. The subject pavement is about 120 sq m.

80 Without a development application to consider the merits of the pavement and its use for parking and turning 4 cars and a trailer in the front garden of No. 11 Grace Street, I have only the plan in Exhibit A and the council’s letter of 3rd December 2007 and annotated plan in Exhibit B Attachment O.

81 Exhibit B Attachment O obviously deals with the council’s merit considerations in regard to the pavement and its use, although the reasons are not expressed in text or an associated report. The council letter also sets out a seven (7) step procedure to obtain a Building Certificate that would authorise the remaining parts of the pavement. The annotated plan would be a paved area much more compact than existing, but still sufficient for 3 cars and a turning area. It would also recreate a substantial garden area adjoining No. 13 and a wider garden bed along the street boundary.

82 The applicant during the Hearing has expressed some merit considerations from his point of view, however I am not sure all the applicant’s merit considerations are before me. After all the applicant’s submission is that even Exhibit A is unacceptable. But I am not prepared to revoke the order altogether as sought by the applicant. The paving over of most of the front garden of a suburban bungalow and its use to park 4 cars and a trailer with more than enough extra room for a turn-around is out of character with the streetscape and the adjoining and nearby residential properties.

83 Exhibit B Attachment O is a better outcome for the applicant than the existing Order under s121B would provide, and will accommodate the majority of vehicles he wishes to park on-site with a turn-around for safer exit to Grace Street. Under s121ZK(4)(c) of the Environmental Planning & Assessment Act 1979 there is power for me to substitute for the order, any other order that the person/council that gave the order could have made. I intend to substitute a new order in terms similar to Exhibit B Attachment O, and allow an extended period for compliance.

84 Therefore the Orders of the Court are:

1. The appeal is upheld in part.
2. The Order under s121B of the Environmental Planning & Assessment Act 1979 and Regulations issued on 3rd January 2008 by the Lane Cove Council in respect of unauthorised pavement to the front garden of No. 11 Grace Street Lane Cove is hereby changed by:
• Deletion of the DATE of the Order of 3rd January 2008 and substitution instead “12th September 2008”.
• deletion of item 1 in the SCHEDULE OF WORKS REQUIRED TO BE CARRIED OUT, and the substitution instead the following:
  1. Demolish and remove the four sections as shown by the plan attached and marked Attachment A. The four sections to be those numbered 1 to 4 and shaded red in the plan attached to Lane Cove Councils letter of 3rd December 2007 Ref No. SM:JT D375/01.
  2. Provide landscape plan by a qualified landscape architect for Section 2, in item 1 above, after removal of the concrete slab between your property and the adjoining owner's property at No. 13 Grace Street
  3. Provide a stormwater drainage certificate from a licensed plumber after removal of the four sections of the concrete slabs certifying the drainage from the stencilled concrete slab is to be connected to the existing stormwater system.
  4. Provide to Council a certificate from a practicing structural engineer certifying the stencilled concrete slab.
  5. Provide a gate to the front boundary to get access for the occupants from the public footpath.
  6. Provide details of the original ground levels after removal of the Section 2 of the stencilled concrete slab in front of the premises. The inspection by Council's officer seemed to indicate that the ground under Section 2 has been filled 600mm above the original adjoining ground level and, if that is the case, such would require Council's consent. The means to clarify the original ground level would be for a survey report to be prepared that does identify the height of the soil above the original natural ground level prior to the construction of the stencilled concrete slab.
  7. It is required that you submit a building certificate application (Section 149D) to this office for consideration and approval.
  • deletion of the matter “twenty eight (28) days” and the substitution instead the matter “sixty (60) days” in the TIME SCHEDULE FOR COMPLIANCE WITH ORDER.
  • Deletion of the matter “180 m2” from item 3 of REASONS FOR ORDER, and the substitution instead “120 sq m”.
3. The exhibits are returned to the parties except Exhibits A, B, C, F and Exhibit 7.

___________________

K G Hoffman
Commissioner of the Court
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17/09/2008 - The word NO was left out of this paragraph by mistake - Paragraph(s) 75