Collins v McElhone

[2006] NSWLEC 348

Land and Environment Court

of New South Wales

CITATION:	Collins v McElhone [2006] NSWLEC 348
PARTIES:	APPLICANT Mei Yu Collins RESPONDENT Barbara McElhone
FILE NUMBER(S):	40110 of 2006
CORAM:	Pain J
KEY ISSUES:	Civil Enforcement :- discretion to remedy or restrain breaches of the Environmental Planning and Assessment Act 1979 - whether demolition for vergola erected without development consent should be ordered - delay
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979 s123, s124(3),
CASES CITED:	ACR Trading Pty Ltd and Another v Fat-Sel Pty Ltd and Anor (1987) 11 NSWLR 67; Warringah Shire Council v Sedevcic (1987) 10 NSWLR 335
DATES OF HEARING:	05/06/2006
DATE OF JUDGMENT:	06/21/2006
LEGAL REPRESENTATIVES:	APPLICANT Mr M Seymour [Barrister) SOLICITORS Luminous Legal RESPONDENT Mr R O'Gorman-Hughes (Barrister) SOLICITORS Minter Ellison Lawyers

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Pain J

21 June 2006

40110 of 2006 Mei Yu Collins v Barbara McElhone

JUDGMENT

1 Her Honour: This is a Class 4 application seeking an order for the demolition of a vergola because it does not have development consent. The relevant consent authority is North Sydney Council (“the Council”). The Applicant and Respondent live in the same apartment block at 1 Bay View Street, Lavender Bay. The Applicant owns and resides in Unit 14 and overlooks the Respondent who owns and resides in Unit 12.

2 The vergola was fixed to the common property, being the concrete slab above Unit 12, by the Respondent sometime in 1998. It provides shade over the Respondent’s courtyard and internal sunroom. The sunroom has a glass roof.

3 The Respondent admitted that the vergola required development consent which was not obtained before it was built.

4 The major issue in the case is whether the Court should exercise its discretion to make the order for demolition sought by the Applicant.

Evidence

5 The Applicant relied on the affidavits of Bruce Alexander Hutchison, a structural engineer, sworn 2 June 2006, and Mei Yu Collins, sworn 28 April 2006. The Respondent relied on the affidavits of Nicholas Douglas Mitchell, civil engineer, sworn 6 June 2006, Robert Scott Lockery, town planner, sworn 22 May 2006, and David Eric McElhone, the Respondent’s son, sworn 19 May 2006.

Brief chronology

6 The owners’ corporation for the building gave its consent to the construction of the vergola, according to the minutes of that body, on 28 April 1998. A letter from the managing agent to the Respondent, dated 30 April 1998, states that the owners’ corporation had given approval for her to install a vergola, subject to four conditions.

7 The vergola was erected by the Respondent sometime in 1998. In March 2004, the Council approved a development application for replacement balustrading for some units in the complex, including the Applicant’s unit. The owners’ corporation gave permission for a number of unit owners, including the Applicant, to remove their existing concrete balustrading and install a new, glass balustrade in its place. Because of the location of the vergola on communal property, the balustrade approved by the Council cannot be installed if the vergola remains in its current position.

8 In August 2005, the Chairman of the owner’s corporation gave the Applicant and the Respondent a note listing a range of options to enable installation of the balustrade, including moving the vergola down marginally and fitting it with a bracket to allow a new glass balustrade on Unit 14 to be built. In the minutes of its meeting held on 6 September 2005, the owner’s corporation resolved that in order to assist the Applicant install the glass balustrade, the owner’s corporation would cover the cost of removing and replacing the Respondent’s vergola. The Council advised the Respondent’s son by letter dated 28 October 2005 that it did not intend to bring any enforcement action against the Respondent under the Environmental Planning and Assessment Act 1979 (“the EP&A Act”), because of the “minor impact of the louvres”.

Applicant’s evidence/submissions

9 The Applicant argued that the principal matter raised in the proceedings against the Respondent is that there is an admitted failure to obtain development consent under the EP&A Act.

10 Further matters which suggest that the relief sought ought be granted are:

(i) the amenity impacts on Unit 14. There is an impact on the Applicant’s views and her enjoyment of the property, because she can see the top of the louvres when they are open and she does not like the look of them.

(ii) the Applicant’s concern that bird droppings on the vergola roof may spread disease.

(iii) the fact that the Applicant cannot undertake refurbishment of the balustrade on her deck in accordance with a development consent issued by the Council for new balustrading in several units because the vergola prevents the attachment of the balustrade to the common property in the way envisaged by the consent. The consent provides that the new balustrade would be fixed at several points to the front of the concrete slab which is common property. Because of the position of the vergola, the new balustrade cannot presently be attached without the vergola being moved. The Applicant wishes to undertake the work so that her unit has the same look as most other units in the building.

(iv) in oral evidence the Applicant also stated that she had safety concerns because there were water problems in the building such as water under the tiles. She considered the vergola exacerbated these.

11 The Applicant explained the substantial delay in taking action by her evidence that she was in very poor health from 1997 to 2000 and spent much of her time in bed, and was unaware of the building of the vergola in 1998. She stated that she cannot recall receiving notice from the owners’ corporation about the proposed vergola and she did not notice it until 2000. While she became aware of the vergola in 2000 and attempted to contact her solicitor she was told he had died. Thereafter she stated that when an architects’ firm was asked to propose a redesign for the building they did not raise any issue about the vergola. She asked a managing agent in 2000 if the vergola was approved and was told that it was. What approval was being referred to is not clear in her affidavit. When different architects drew up plans to change the existing cement and glazed balcony walls to glass, no issue was raised about the vergola with the Applicant. She only became aware that the vergola did not have the necessary development consent in late 2004/ early 2005.

Respondent’s evidence/submissions

12 The Respondent argued the application should be dismissed because the impact on Unit 14 is minimal and trivial. The only obstruction of view is part of the slab of the common property in front of Unit 12. The other concerns raised by the Applicant in relation to bird droppings, water under the tiles and the impact on her view are not material.

13 The affidavit of David Eric McElhone, the Respondent’s son, attests that the vergola was installed to provide protection from the sun both internally and externally and was chosen because it can be operated electronically by his elderly mother from within her unit. The affidavit of Robert Lockery, a qualified town planner, states that in his opinion, the vergola structure has a negligible environmental impact on the Applicant’s property when opened and closed, because it provides a privacy buffer between the two units, does not result in a loss of daylight or ventilation, does not cause overshadowing, does not add to the bulk and scale of the building, or impact on the streetscape and does not result in any unreasonable loss of view from the Applicant’s property.

14 In relation to the new balustrade proposed to be built there is a practical solution available, as stated by Mr Mitchell, engineer, whereby the vergola can be removed and replaced about 50mm lower and attached by a bracket which will enable the balustrade approved by the development consent to be built. A development application will be lodged with the Council to obtain development consent for that purpose and the Respondent is prepared to give an undertaking to the Court on that matter as follows:

The Respondent will promptly lodge a DA for the relocation of the vergola away from the boundary slab by sufficient distance to enable the Applicant’s balustrade to be constructed. The vergola will be relocated in accordance with annexure C and paragraph 11 of the affidavit of Mr Nicholas Mitchell.
The Respondent agrees to the vergola relocation in accordance with the aforementioned description following the grant of consent from the owners’ corporation and North Sydney Council and on the basis that the owners’ corporation will pay for the relocation in accordance with minutes of the owners’ corporation dated 6 September 2005.
The Respondent will relocate the vergola at the time the balustrade for Unit 14 is replaced.

15 Further, the owners’ corporation has passed a resolution whereby it has agreed to remove and reinstall the vergola in such a way that the new balustrade can be fixed to the common property. If the Court orders the removal of the vergola the owners’ corporation agreement to pay for the removal and reinstallation will no longer be available to the Respondent and she will have to pay for that work to be done.

Legislation

16 Section 123 of the EP&A Act states:

(1) Any person may bring proceedings in the Court for an order to remedy or restrain a breach of this Act, whether or not any right of that person has been or may be infringed by or as a consequence of that breach…

17 Section 124(3) of the EP&A Act states:

Where a breach of this Act would not have been committed but for the failure to obtain a consent under Part 4, the Court, upon application being made by the defendant, may:
(a) adjourn the proceedings to enable a development application to be made under Part 4 to obtain that consent, and
(b) in its discretion, by interlocutory order, restrain the continuance of the commission of the breach while the proceedings are adjourned.

Finding

18 It is unfortunate this matter could not be resolved between the parties and that Court action was necessary.

19 This application is brought under s 123 of the EP&A Act. The Court has wide discretion to remedy or restrain breaches of the EP&A Act as identified by Kirby P in Warringah Shire Council v Sedevcic (1987) 10 NSWLR 335. (see Kirby P’s judgment at 339 – 341 for factors to consider). Relevant matters to consider include whether the breach was purely technical and was not noticeable other than to a person well versed in the relevant law, that there was delay in bringing an action and that the breach had a positive benefit for the environment. He emphasised the need to consider that the restraint sought is of a public duty not a private right and there is an interest in upholding in the normal course the integrated and coordinated nature of planning law. Otherwise the equal and orderly enforcement of the Act could be undermined. This is also emphasised by the Court of Appeal in ACR Trading Pty Ltd and Another v Fat-Sel Pty Ltd and Anor (1987) 11 NSWLR 67.

20 The Court has had the benefit of a view of the premises which shows that the overall impact of the vergola on the amenity of the Applicant’s property is minor, as identified in the affidavit of Mr Lockery, town planner. There is negligible impact on the Applicant’s views with potential obstruction of the common property outside Unit 12 to a very limited extent. The proposal put forward by Mr Mitchell, the structural engineer called by the Applicant, will cause the vergola to be lowered approximately 50mm. This will mean the louvres when open will be below the top of the concrete slab and even less visible. Mr Mitchell confirmed that the vergola could be relocated away from the concrete slab using a different kind of bracket to enable the new balustrade to be mounted. Mr Hutchison, the engineer called by the Applicant, agreed this approach was feasible.

21 The Applicant’s concerns about bird droppings are minor in my view. No evidence is before the Court suggesting there is any health concern from the presence of bird droppings. Nor is there evidence that the Applicant’s concerns about water under the tiles has any foundation. Observation of the vergola on the view does not suggest this is an issue.

22 It is also clear that cover for the glass roof of the Respondent’s unit must be maintained for the protection of her amenity. A system which allows for easy manipulation of controls internally is necessary in her circumstances. The failure to obtain development consent is more than a technical breach of the legislation. However, the long delay by the Applicant in seeking relief is a significant factor to weigh up in the Court’s decision as to whether the order sought ought be made. The affidavit evidence of the Applicant refers to a lengthy period of ill health from 1997 to 2000 during which she was unaware of much that occurred around her including the construction of the vergola. She also said she contacted her solicitor about this issue in 2000 but was told he had died. There is no evidence of any further inquiries being made by the Applicant apart from a general question to the managing agent in 2000 as referred to at par 11. The fact that architects undertaking work on the building failed to mention the lack of development consent is not relevant.

23 The explanations for why this period of time was taken to commence proceedings do not completely explain why there was such a long delay. It is clear that matters have been brought to a head by the understandable wish on the Applicant’s part to erect the balustrading for which she has development consent. Given that there is a technical option enabling the vergola to be repositioned and the balustrade to be erected, that is clearly the appropriate outcome for the circumstances in this case. The undertaking the Respondent provided to the Court suggests this objective can be achieved. I therefore decline to make the order for demolition sought. The proceedings should be dismissed and I will note the undertaking provided to the Court by the Respondent.

Orders

24 The Court makes the following orders:

1. The Class 4 application is dismissed.
2. The Respondent’s undertaking is noted.
3. Costs are reserved.