Cumberland Council v Cando Management and Maintenance Pty Ltd - [2018] NSWLEC 83

Land and Environment Court

New South Wales

Medium Neutral Citation: Cumberland Council v Cando Management and Maintenance Pty Ltd [2018] NSWLEC 83
Date of orders: 01 June 2018
Decision date: 01 June 2018
Jurisdiction: Class 4
Before: Pain J
Decision:
See par [114]

Catchwords: ENVIRONMENT AND PLANNING – completed multi-dwelling development for which no construction certificate obtained so that occupation certificate not available – no principal certifying authority appointed –lapsing of development consent – change in zoning prohibited multi dwelling development – exercise of discretion to make declaration of prohibited development – no demolition ordered – consequential order made restraining residential use until development consent for complying use obtained
Legislation Cited: Land and Environment Court Act 1979 ss 20, 22, 23
Environmental Planning and Assessment Act 1979 ss 4, 76A, 76B, 81A, 94, 95, 109B, 109F, 109H, 109M, 123, 124, 149A,
Parramatta Local Environmental Plan 2011
Cases Cited: ACR Trading Pty Ltd v Fat-Sel Pty Ltd (1987) 11 NSWLR 67
Besmaw Pty Ltd v Sutherland Shire Council (2003) 127 LGERA 413; [2003] NSWLEC 181
Coalcliff Community Association Inc v Minister for Urban Affairs & Planning (1999) 106 LGERA 243; [1999] NSWCA 317
Council of the City of Sydney v Karimbla Properties (No 24) Pty Ltd [2014] NSWLEC 77
Dillon v Gosford City Council [1995] NSWCA 124
Drummoyne Municipal Council v Lebnan (1974) 131 CLR 350; [1974] HCA 34
F Hannan Pty Ltd v Electricity Commission of New South Wales [No 3] (1985) 66 LGERA 306
Great Lakes Council v Lani; Great Lakes Council v Lani and Lampo Pty Ltd (2007) 158 LGERA 1; [2007] NSWLEC 681
Green v Kogarah Municipal Council (2001) 115 LGERA 231; [2001] NSWCA 123
Hunter Development Brokerage Pty Ltd v Cessnock City Council; Tovedale Pty Ltd v Shoalhaven City Council (2005) 140 LGERA 201; [2005] NSWCA 169
Iron Gates Developments Pty Ltd v Richmond Evans Environmental Society (1992) 81 LGERA 132
K&M Prodanovski Pty Ltd v Wollongong City Council (2013) 195 LGERA 23; [2013] NSWCA 202
Liverpool City Council v Maller Holdings Pty Ltd (2013) 211 LGERA 360; [2013] NSWLEC 154
Miller v Commissioner of Police [2004] NSWCA 356
Morris v Woollahra Municipal Council (1966) 116 CLR 23
North Sydney Council v Moline; North Sydney Council v Tomkinson (No 2) [2008] NSWLEC 169
Owendale Pty Ltd v Anthony (1967-8) 117 CLR 539; [1967] HCA 20
Sharp v Hunters Hill Council [2002] NSWLEC 27; (2002) 120 LGERA 155
Smith v Wyong Shire Council [2008] NSWLEC 115
Upper Hunter Sustainable Industries Association Inc v MACH Energy Australia Pty Ltd (No 2) (2017) 244 LGERA 361; [2017] NSWLEC 87
Victims Compensation Fund Corporation v District Court of New South Wales [2002] NSWCA 355
Vines v Djordjevitch (1955) 91 CLR 512
Warringah Shire Council v Sedevcic (1987) 10 NSWLR 335
Category: Principal judgment
Parties: Cumberland Council (Applicant)
Cando Management and Maintenance Pty Ltd (Respondent)
Representation:
COUNSEL:
J McKelvey (Applicant)
P Tomasetti SC and R O’Gorman-Hughes (Respondent)
SOLICITORS:
Sparke Helmore (Applicant)
Swaab Attorneys (Respondent)

File Number(s): 16/150312

Judgment

Cumberland Council (the Council) has commenced Class 4 proceedings by summons seeking various declarations and orders in relation to the Respondent’s multi-dwelling townhouse development (the development) on Woodville Road Guildford (the Site). That development the subject of development consent JE/01904/03 (the consent) is largely complete. It is unoccupied. No occupation certificate has been issued due to the absence of a construction certificate. The Respondent admits that no construction certificate as required by s 81A(2) of Environmental Planning and Assessment Act 1979 (EPA Act) was obtained. A number of issues potentially arise.
The Council’s Further Amended Summons seeks the following relief:

1.   The Applicant [the Council] seeks the following relief:
(a)   A DECLARATION that the Respondent, by itself, its servants and/or agents, by:
(i)   erecting a multi-unit development containing nine townhouses and basement car parking;
on land described as Lot 190 in Deposited Plan 1060765 (known as 527 Woodville Road, Guildford) (the Premises) carried out prohibited development for which no development consent was in force in breach of section 4.3 (formerly 76B) of the Environmental Planning & Assessment Act 1979 (the Act).

(b)   An ORDER that the Respondent demolish the multi-unit development containing nine townhouses and basement car parking on the Premises within 90 days.
(c)   In the alternative to (1)(b), an ORDER that the Respondent, by itself, its servants and/or agents, be restrained from using the Premises or permitting the Premises to be used for residential purposes until such time as that use is authorised by a development consent and the multi-unit development containing nine townhouses and basement car parking is the subject of a building certificate pursuant to section 149A of the Act.
(d)   An ORDER that the Respondent pay the Applicant's costs.
(e)   Any other order that the Court considers appropriate in the circumstances.

2.   In the alternative, the Applicant seeks the following relief:
(a)   A DECLARATION that the Respondent, by itself, its servants and/or agents, by:
(i)   erecting a multi-unit development containing nine townhouses and basement car parking;
on the Premises carried out development otherwise than in accordance with Development Consent JE/01904/03 granted by the Land and Environment Court on 23 July 2004 in proceedings 10175/2004 (the Consent) in breach of section 76A(1)(b) (now s 4.2(1)(b)) of the Act.

(b) A DECLARATION that the Respondent, by itself, its servants and/or agents, by erecting a multi-unit development containing nine townhouses and basement car parking on the Premises without first obtaining a construction certificate carried out building work in breach of section 81A(2)(a) (now s 6.7(1)) of the Act.
(c) A DECLARATION that the Respondent, by itself, its servants and/or agents, by erecting a multi-unit development containing nine townhouses and basement car parking on the Premises without appointing a principal certifying authority carried out building work in breach of section 81A(2)(b) (now s 6.6(1)) of the Act.
(d)   An ORDER that the Respondent demolish the multi-unit development containing nine townhouses and basement car parking on the Premises within 90 days.
(e)   In the alternative to (2)(d), an ORDER that the proceedings be adjourned to permit the Respondent the opportunity to lodge a modification application with the Applicant and, if approved, to obtain a construction certificate for prospective works and to seek an occupation certificate.
(f)   In the alternative to 2(d) and 2(e), ORDER that the Respondent, by itself, its servants and/or agents, be restrained from using the Premises or permitting the Premises to be used until such time as its use is otherwise regularised.
(g)   An ORDER that the Respondent pay the Applicant's costs.
(h)   Any other such order that the Court deems fit to make in the circumstances.

Prayer 1 would follow a finding of lapsing of the consent. If the consent has lapsed a breach of the EPA Act arises under s 76A(1)(a) (now s 4.2(1)(a)) and due to changes in the Parramatta Local Environmental Plan (PLEP) the development is prohibited so that the breach arises under s 76B. If the consent has not lapsed and is in force the alleged breach arises under s 76A(1)(b) (now s 4.2(1)(b)) of carrying out development not in accordance with a development consent to which prayer 2 and following is directed.
The Council filed Points of Claim as follows:

The Parties
1   The Applicant is the local council with responsibility for the local government area of Parramatta City.
2   The Respondent is a company duly incorporated under the Corporations Act 2001 (Cth).
3   Since 9 October 2012, the Respondent has been the registered proprietor of land described as Lot 190 in Deposited Plan 1060765, known as 527 Woodville Road, Guildford (the Premises).
The Consent
4   On 23 July 2004, the Land and Environment Court granted consent, subject to conditions, to development application JE/01904/03 for the demolition of an existing dwelling and the erection of a multi-unit development containing nine townhouses and basement car parking on the Premises (the Consent).
Lapsing of the Consent
5   In or around May/June 2009, the Respondent, by itself, its servants and/or agents, commenced demolition of an existing dwelling on the Premises (the Demolition Work).
6   The Demolition Work was carried out in breach of the following conditions of the Consent:
a.   Condition 21: A copy of a Work Method Statement was not provided to the Applicant.
b.   Condition 22: No Pedestrian and Traffic Management Plan was approved by the Applicant prior to demolition or excavation on the Premises.
c.   Condition 23: No written notice was given to the Applicant in relation to the commencement of demolition on the Premises.
d.   Condition 24: No inspection was carried out by the Applicant or the Principal Certifying Authority prior to demolition for the purpose of assessing whether appropriate measures were in place for the handing, storage, transport and disposal of bonded or friable abestos [sic].
e.   Condition 27: Any fencing erected was not approved by the Principal Certifiying [sic] Authority as one had not been appointed.
f.   Condition 29: The Applicant was not notified of the appointment of a Principal Certifying Authority.

7   On 24 July 2009, the Consent lapsed as it had not been lawfully physically commenced.
The Building Works
8   In or after December 2012, the Respondent, by itself, its servants and/or agents, commenced construction of the multi-unit development containing nine townhouses and basement car parking on the Premises (the Building Works).
9   The Building Works have been carried out on the Premises in breach of the following conditions of the Consent:
(a)   Condition 1: Development has not been carried out in accordance with approved plans and without a Construction Certificate.
(b) Condition 2: Construction has not been carried out in accordance with the Building Code of Australia.
(c)   Condition 3: Construction commenced without first obtaining a Construction Certificate.
(d) Condition 4: No approval pursuant to section 138 of the Roads Act 1993 has been issued by Roads and Maritime Services.
(e) Condition 5: No compliance certificate pursuant to section 73 of the Sydney Water Act 1994 has been obtained.
(f)   Condition 11: The heavy-duty vehicular crossing has not been constructed in accordance with the Applicant's Standard Plan No. 5426.
(g)   Condition 13: The intercom system has not been installed to enable visitor access into basement car parking area.
(h)   Condition 16: No Construction Management Program was submitted to or approved by the Applicant.
(i)   Condition 29: The Applicant was not notified of the appointment of a Principal Certifying Authority.
(j)   Condition 30: The approved plans were not submitted to a Sydney Water Quick Check agent or Customer Centre to determine whether the Development would affect Sydney Water's sewer and water mains prior to work commencing.
(k)   Condition 39: A Waste Data File has not been maintained to record building or demolition contractor details and waste disposal receipts for demolition or construction waste.
(I)   Condition 40: The required survey certificates have not been obtained at the relevant stages of construction.

10   No Construction Certificate was issued prior to the commencement of the Building Works carried out on the Premises.
11   No Principal Certifying Authority was appointed prior to the commencement of the Building Works on the Premises.
Attempts to Regularise
12 On or around 2 June 2015, the Respondent made an application for a Building Certificate pursuant to section 149A of the Environmental Planning and Assessment Act 1979 in relation to the Building Works (the Building Certificate Application).
13 Also on around 2 June 2015, the Respondent made an application to the [sic] modify the Consent pursuant to section 96AA of the Environmental Planning and Assessment Act 1979 (the Modification Application).
14   On 12 June 2015, the Applicant rejected the Building Certificate Application.
15   Also on 12 June 2015, the Applicant rejected the Modification Application.
16   The Applicant therefore seeks the relief set out in the Summons.

The Respondent filed its Cross-Summons. The relief sought during the hearing varied from the Cross-Summons as filed. I set out below what is now sought as proposed declarations and orders:

1   A declaration that development consent JE 1904/03 granted by the Land and Environment Court in proceedings 10175/2004 has not lapsed.
2   Cando is to carry out the works described in annexure A within 6 months.
3   The parties are to appoint an independent expert to certify the works carried out in 2 above. The parties are to agree on an expert to carry out the certification within 14 days of the date of these Orders. The expert is to be available to certify the works carried out in 2 above within 28 days of the estimated timeframe for completion of the works.
4   The independent expert agreed by the parties is to certify that the works carried out have been carried out on completion of the works. The certification is to be provided to both parties jointly.
5   The certification of the works set out in 2 above is to take place within 28 days of the notification to the expert that the works have been completed.
6   A declaration in the exercise of the Court's discretion that, after receipt of the certification referred to in 4 above, the existing multi-unit development at 527 Woodville Road Guildford ('the Building') may be occupied without an occupation certificate.
7   Liberty is granted to the parties to restore the matter to the list on 5 days notice to the other should it become necessary to vary the orders in any respect.
ANNEXURE A – SCHEDULE OF WORKS

The schedule of works was not included in the Respondent’s proposed orders. The schedule can be found in the statement of agreed facts (SOAF) below at [12].
Although a declaration is sought in prayer 1 that the consent has not lapsed the Respondent’s primary submission is that the Court should make no finding on the matter of lapsing of the consent because to do so has no practical utility.
During the hearing a Further Amended Cross-Claimant’s Points of Claim was filed in court. The additional text is in bold below.

1.   At all material times:
a.   Joseph Refalo was a director and shareholder of the Cross-claimant (“Cando Management”); and
b.   was responsible for the day to day management of Cando Management.

2.   On 23 July 2004 the Land and Environment Court granted consent (“the Consent”), subject to conditions, to development application JE/01904/03 for the demolition of an existing dwelling and the erection of a multi-unit development containing nine townhouses and basement car parking (“the Development”) on land known as 527 Woodville Road, Guildford (“the Property”).
3.   At the time of the grant of the Consent, the Development was permissible with consent on the Property and subject to a floor space ratio limit of 0.6:1 pursuant to Parramatta Local Environmental Plan 2001.
4.   In or around May/June 2009:
a)   demolition of the existing dwelling was carried out pursuant to the Consent (“the Demolition Work”); and
b)   the Property was cleared, trees and shrubs were removed, and water was disconnected.
Particulars
The trees included trees 5, 6, 7, 8, 12, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23 and 25 identified for removal on the Landscape Plan of Abstract Group numbered 0322BA1 revision C which formed part of the Consent.

5.   In or about June 2012, Cando Management was considering whether to purchase the Property.
6.   On or about 25 June 2012 Cando Management was provided with information concerning the Consent, which included:
a.   A letter from the Cross-respondent (“Council”) dated 29 November 2010 which advised that if demolition works had been carried out prior to 23 July 2009 that the Consent would be considered active.
b.   Invoices for demolition work which indicated the Demolition Work had occurred in May 2009.
c.   Aerial photographs of the Property taken on 14 November 2009 which showed enough vegetation re-growth to suggest that the Demolition Work had taken place well before those photographs were taken.

7.   Cando Management relied upon this information, including the letter from the Council dated 29 November 2010:
a.   in forming the view that the Consent had not lapsed; and
b.   in deciding to purchase the Property.

8.   On or about 3 July 2012, Cando Management purchased the Property.
The Existing Building
9   In or after December 2012 Cando Management, by itself, its servants and/or agents, commenced construction of a multi-unit development containing nine townhouses and basement car parking on the Property pursuant to the Consent (“the Existing Building”).
10   No construction certificate was obtained prior to the commencement of the erection of the Existing Building.
11   The Existing Building has been constructed generally in accordance with the approved plans referred to in the Development Consent subject to the following differences:
a.   A minor extension of the building footprint to the east;
b.   Reconfiguration of the entrance ways to the units along the southern facade;
c.   Minor adjustments to the building line along the northern facade; and
d.   The reconfiguration of the basement including an additional storage area.

12 The Existing Building has been constructed in accordance with the following as built plans prepared by Architecture Design Studio Pty Ltd:

Drawing Title

Drawing No.

Issue

Date

Floor Plans 04

B-010

DC

23/04/2015

Floor Plans 01

B-011

DC

23/04/2015

Floor Plans 02

B-012

DC

23/04/2015

Floor Plans 02

B-013

DC

23/04/2015

FSR Calculations

B-014

DC

23/04/2015

Elevations

B-020

DC

23/04/2015

13   The Existing Building complies with the floor space ratio control of 0.6:1 which applied at the time the Consent was originally granted.
14   The Existing Building is consistent with the character of the surrounding area.
15   The Existing Building is structurally adequate for:
a.   the use for which the Consent was originally granted; and
b.   multi dwelling housing.

16   The Existing Building is substantially:
a.   fit to be given an occupation certificate; and
b.   fit to be issued a strata certificate.

Attempts to regularise the breaches of the Consent
17   On or about 2 June 2015 Cando Management lodged with the Council:
a.   An application for a building certificate for the Existing Building; and
b.   An application to modify the Consent to approve the departures from the approved plans.

18   The Council purported to reject those application [sic] on 12 June 2015.
19   The Council's letter rejecting the application to modify the consent asserted that the consent lapsed because demolition had not lawfully commenced within the relevant period.
Existing Building now prohibited under the LEP
20   Under the provisions of the Parramatta Local Environmental Plan 2011 currently in force:
a.   the Property is zoned R2 Low Density Residential;
b.   the Development is prohibited;
c.   the use of the Existing Building for the purpose for which the Consent was granted is prohibited;
d.   the use of the Existing Building for the purpose of multi dwelling housing is prohibited;
e.   separate occupation of the dwellings in the Development is prohibited.

Lapsing of the Consent
21 The Consent has not lapsed, notwithstanding any alleged failure to comply with conditions relating to the Demolition Work (which is not admitted).
22 Further and in the alternative, if (contrary to what the Council advised in its letter of 14 November 2009) the Consent has lapsed because demolition work was carried out in breach of the conditions of the Consent, the Court would, in the exercise of its discretion, declare that the Consent has not lapsed.

…
27 Cando Management relies on the Court's discretion for the relief sought in the cross summons to enable the Existing Building to be occupied and strata-subdivided.

Environmental Planning and Assessment Act 1979

The provisions of the EPA Act have been rearranged and renumbered with effect from 1 March 2018. I will refer to the provisions requiring consideration in these proceedings by the numbering system which applied prior to the 1 March 2018 changes.
Relevant sections of the EPA Act provide:

Part A Development Assessment
Division 1 Carrying out of development—the threefold classification
…
76A Development that needs consent
(1)   General
If an environmental planning instrument provides that specified development may not be carried out except with development consent, a person must not carry the development out on land to which the provision applies unless:
(a)   such a consent has been obtained and is in force, and
(b)   the development is carried out in accordance with the consent and the instrument.

(2)   For the purposes of subsection (1), development consent may be obtained:
(a)   by the making of a determination by a consent authority to grant development consent, or
(b)   in the case of complying development, by the issue of a complying development certificate.

(3), (4) (Repealed)
(5)   Complying development
An environmental planning instrument may provide that development, or a class of development, that can be addressed by specified predetermined development standards is complying development.
(6)–(9) (Repealed)
76B Development that is prohibited
If an environmental planning instrument provides that:
(a)   specified development is prohibited on land to which the provision applies, or
(b)   development cannot be carried out on land with or without development consent,
a person must not carry out the development on the land.
…
Division 2 The procedures for development that needs consent
…
81A Effects of development consents and commencement of development
(1)   Erection of buildings
A development consent that enables the erection of a building is sufficient to authorise the use of the building when erected for the purpose for which it was erected if that purpose is specified in the development application, subject to section 109M.
…
(2)   The erection of a building in accordance with a development consent must not be commenced until:
(a)   a construction certificate for the building work has been issued by the consent authority, the council (if the council is not the consent authority) or an accredited certifier, and
(b)   the person having the benefit of the development consent has:
(i)   appointed a principal certifying authority for the building work, and
(ii)   notified the principal certifying authority that the person will carry out the building work as an owner-builder, if that is the case, and

(b1)   the principal certifying authority has, no later than 2 days before the building work commences:
(i)   notified the consent authority and the council (if the council is not the consent authority) of his or her appointment, and
(ii)   notified the person having the benefit of the development consent of any critical stage inspections and other inspections that are to be carried out in respect of the building work, and

(b2)   the person having the benefit of the development consent, if not carrying out the work as an owner-builder, has:
(i)   appointed a principal contractor for the building work who must be the holder of a contractor licence if any residential building work is involved, and
(ii)   notified the principal certifying authority of any such appointment, and
(iii)   unless that person is the principal contractor, notified the principal contractor of any critical stage inspections and other inspections that are to be carried out in respect of the building work, and

(c) the person having the benefit of the development consent has given at least 2 days’ notice to the council, and the principal certifying authority if that is not the council, of the person’s intention to commence the erection of the building.

...
(7)   Penalty for contravention of subsection (2) or (4) The maximum penalty that may be imposed for a contravention of subsection (2) or (4) is 1,000 penalty units.
…
Division 7 Post-consent provisions
95 Lapsing of consent
(1)   A development consent lapses 5 years after the date from which it operates.
...
(4)   Development consent for:
(a)   the erection of a building, or
(b)   the subdivision of land, or
(c)   the carrying out of a work,
does not lapse if building, engineering or construction work relating to the building, subdivision or work is physically commenced on the land to which the consent applies before the date on which the consent would otherwise lapse under this section.

(5)   Development consent for development other than that referred to in subsection (4) does not lapse if the use of any land, building or work the subject of that consent is actually commenced before the date on which the consent would otherwise lapse.
...
(7)   The regulations may set out circumstances in which work is or is not taken to be physically commenced for the purposes of this section.
…
Part 4A Certification of development
Division 1 Certification of work and other matters
…
109F Restriction on issue of construction certificates
(1)   A construction certificate must not be issued with respect to the plans and specifications for any building work or subdivision work unless:
(a) the requirements of the regulations referred to in section 81A (5) have been complied with, and
(b) any long service levy payable under section 34 of the Building and Construction Industry Long Service Payments Act 1986 (or, where such a levy is payable by instalments, the first instalment of the levy) has been paid.

(1A)   A construction certificate has no effect if it is issued after the building work or subdivision work to which it relates is physically commenced on the land to which the relevant development consent applies.
…
109H Restrictions on issue of occupation certificates
(1)   There are two kinds of occupation certificates, as follows:
...
(b)   a final occupation certificate that authorises a person to commence occupation or use of a new building, or to commence a new use of a building resulting from a change of building use for an existing building.
...

(5)   A final occupation certificate must not be issued to authorise a person to commence occupation or use of a new building unless:
(a)   a development consent or complying development certificate is in force with respect to the building, and
(b)   in the case of a building erected pursuant to a development consent but not a complying development certificate, a construction certificate has been issued with respect to the plans and specifications for the building, and
(c) the building is suitable for occupation or use in accordance with its classification under the Building Code of Australia, and
(d)   such other matters as are required by the regulations to be complied with before such a certificate may be issued have been complied with.

…
109M Occupation and use of new building requires occupation certificate
(1) A person must not commence occupation or use of the whole or any part of a new building (within the meaning of section 109H) unless an occupation certificate has been issued in relation to the building or part.
Maximum penalty:
(a) in the case of a class 1a or class 10 building, as referred to in the Building Code of Australia—5 penalty units, or
(b) in the case of any other building—1,000 penalty units.
...

…
Part 6 Implementation & enforcement
Division 3 Orders of the Court
…
123 Restraint etc of breaches of this Act
(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.
...
124 Orders of the Court
(1)   Where the Court is satisfied that a breach of this Act has been committed or that a breach of this Act will, unless restrained by order of the Court, be committed, it may make such order as it thinks fit to remedy or restrain the breach.
(2)   Without limiting the powers of the Court under subsection (1), an order made under that subsection may:
(a)   where the breach of this Act comprises a use of any building, work or land—restrain that use,
(b)   where the breach of this Act comprises the erection of a building or the carrying out of a work—require the demolition or removal of that building or work, or
(c)   where the breach of this Act has the effect of altering the condition or state of any building, work or land—require the reinstatement, so far as is practicable, of that building, work or land to the condition or state the building, work or land was in immediately before the breach was committed.

(3)   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.

(4) The functions of the Court under this Division are in addition to and not in derogation from any other functions of the Court.
(5) Nothing in this section affects the provisions of Division 3 of Part 3 of the Land and Environment Court Act 1979.
…

Land and Environment Court Act 1979

Relevant sections of the Land and Environment Court Act 1979 (the Court Act) provide:

Part 3 Jurisdiction of the Court
Division 1 General
…
20 Class 4—environmental planning and protection, development contract and strata renewal plan civil enforcement
(1)   The Court has jurisdiction (referred to in this Act as “Class 4” of its jurisdiction) to hear and dispose of the following:
…
(2)   The Court has the same civil jurisdiction as the Supreme Court would, but for section 71, have to hear and dispose of the following proceedings:
(a)   to enforce any right, obligation or duty conferred or imposed by a planning or environmental law, a development contract or a strata renewal plan,
(b)   to review, or command, the exercise of a function conferred or imposed by a planning or environmental law, a development contract or a strata renewal plan,
(c)   to make declarations of right in relation to any such right, obligation or duty or the exercise of any such function,
(d) whether or not as provided by section 68 of the Supreme Court Act 1970—to award damages for a breach of a development contract.

…
(3) For the purposes of subsection (2), a planning or environmental law is:
(a) any of the following Acts or provisions:
…
Environmental Planning and Assessment Act 1979,
...
as respectively in force at any time, whether before, on or after 1 September 1980.

…
22 Determination of matter completely and finally
The Court shall, in every matter before the Court, grant either absolutely or on such terms and conditions as the Court thinks just, all remedies to which any of the parties appears to be entitled in respect of a legal or equitable claim properly brought forward by that party in the matter, so that, as far as possible, all matters in controversy between the parties may be completely and finally determined and all multiplicity of proceedings concerning any of those matters may be avoided.
23 Making of orders
The Court has power, in relation to matters in which it has jurisdiction, to make orders of such kinds, including interlocutory orders, as the Court thinks appropriate.

Statement of agreed facts

The parties agreed a SOAF (tabs omitted) as follows:

THE PARTIES
The Applicant/Cross-respondent
1.   The Applicant (Council) is the local council with responsibility for land described as Lot 190 in Deposited Plan 1060765 and known as 527 Woodville Road, Guildford (Site).
2.   On the site is located a multi-unit building containing nine townhouses over basement parking (Building Works / Building).
3.   The Site was previously within the local government area of Parramatta City Council, which was the original Applicant in these proceedings.
4. Clause 18 of the Local Government (City of Parramatta and Cumberland) Proclamation 2016 provides:
Anything done or omitted to be done by a former council and having any force or effect immediately before the amalgamation day continues to have effect as if it had been done or omitted to be done by the new council.

5.   Clause 37 of the Proclamation authorises the continuation of legal proceedings.
6.   A copy of the Proclamation is at Tab 1.
The Respondent/Cross-claimant
7.   The Respondent (Cando) is a company duly incorporated under the Corporations Act 2001.
8.   Mr Joseph Refalo is the Director and Secretary of Cando as well as a shareholder. Julie Refalo (Mr Refalo’s wife) and Andrew Refalo (Mr Refalo’s son) are also directors and shareholders of Cando. A copy of a company search for Cando is at Tab 2. He is responsible for the day to day management of the company.
THE DEVELOPMENT CONSENT
9.   On 23 July 2004, in proceedings 10175 of 2004, the Land and Environment Court of NSW granted development consent subject to conditions, to development application JE/01904/03 for the demolition of an existing dwelling and the erection of a multi-unit development containing nine townhouses over basement car parking (Consent). A copy of the Consent is at Tab 3.
PLANNING CONTROLS
10.   At the time the Consent was granted, the land was zoned Residential 2B under Parramatta Local Environmental Plan 2001. The approved development was permissible with consent on the Site and subject to a floor space ratio control of 0.6:1. A copy of an extract of the Land Use Table and the zoning map are at Tab 4.
11.   On 7 October 2011, Parramatta Local Environmental Plan 2011 was gazetted and the land is now zoned R2 Low Density Residential under that planning instrument. Multi dwelling housing is prohibited on land zoned R2. A copy of an extract of the Land Use Table and the zoning map are at Tab 5.
12.   Under provisions of Parramatta Local Environmental Plan 2011:
(a)   The erection of the Building is prohibited;
(b)   The use of the Building for the purpose for which the Consent was granted is now prohibited;
(c)   The use of the Building for the purpose of multi-dwelling housing is now prohibited.

DEMOLITION WORKS
13. On or around 7 May 2009, Samaan Demolition and Excavation Pty Ltd (Samaan) provided a quote for demolition works to Ziya Mert Okumus, the previous registered proprietor of the Site, to undertake demolition of the structures and to remove the debris from the Site. A copy of the quote is at Tab 6.
14. On or around 21 June 2009, an invoice was issued for the demolition works by Samaan. A copy of that invoice is at Tab 7.
15. By letter dated 29 November 2010, Parramatta City Council (the relevant local government at that time) wrote to I & T Solicitors regarding the status of the Consent. That letter confirms the terms of s. 95(4) of the EP&A Act and advises:
…condition 23 of the Court approval states:
23. A minimum of five (5) working days prior to the any demolition work commencing a written notice is to be given to Parramatta City Council…’

Council does not hold records that confirm that demolition or preparatory works commenced on site, prior to 23 July 2009.
On this basis, prior to the issue of any construction certificate, the principal certifying authority would need to be satisfied that demolition and or [sic] other preparatory works occurred prior to 23 July 2009.
If demolition works were carried out prior to 23 July 2009 and in accordance with the decision of the Land and Environment Court in Smith v Wyong Shire Council (2008) it is advised that the consent would be considered to be operative.

A copy of the Council letter is at Tab 8.
16.   There is no evidence of any of the following having been prepared/undertaken by any person prior to demolition works being commenced:
(a)   Work Method Statement required by Condition 21 of the Consent;
(b)   Pedestrian and Traffic Management Plan required by Condition 22 of the Consent;
(c)   notification of demolition work required by Condition 23 of the Consent;
(d)   inspection required by Condition 24 of the Consent.

CANDO’S PURCHASE OF THE SITE
17.   On or about 9 October 2012, Cando became the registered proprietor of the Site.
CONSTRUCTION WORKS
18.   Shortly after the settlement of Cando’s purchase, Cando engaged Architectural Design Studio to prepare a Construction Certificate to carry out the development on the Site.
19.   In or after July 2013, Cando (via contractors) commenced construction of a multi-unit development containing nine townhouses and basement car parking on the Site (the Building Works).
20. On or around 9 April 2013, Cando paid the long service levy and development contributions pursuant to s. 94 of the EP&A Act (as it then was). Copies of the receipts are at Tab 9.
21.   There is no evidence of any of the following having been obtained/prepared/undertaken by any person prior to the Building Works being carried out:
(a) Construction Certificate as required by Condition 3 of the Consent (and s. 6.7(1) (previously s. 81A(2)(a)) of the EP&A Act Act);
(b)   appointment of a Principal Certifying Authority required by Condition 29 of the Consent;
(c)   notification of intention to erect a building required by Condition 29 of the Consent;
(d)   Public Risk Insurance as required by Condition 34 of the Consent;
(e)   records of critical inspections by the PCA.

NON-COMPLIANCES WITH APPROVED PLANS
22.   The plans approved by the Consent are at Tab 10.
23.   The works-as-executed plans are at Tab 11, and generally reflect what has been built. The building is almost complete.
24. The Building Works were not carried out in entirely in accordance with approved plans (as required by Condition 1 of the Consent) or the Building Code of Australia (now the National Construction Code) (BCA) as required by Condition 2 of the Consent.
25.   On 17 October 2017, Cando was released by the Court from its undertaking to the Court on 8 February 2016 to the extent necessary to carry out the work referred to in the report of its BCA consultant, Mr Vic Lilli, dated 10 March 2017.
Stormwater
26.   As at 17 October 2017, the site stormwater management system as constructed did not conform to the requirements of the Consent or the Council controls as they applied at the time of the Consent as follows:
(a)   the basement stormwater is pumped to Lough Avenue rather than to Woodville Road;
(b)   the basement stormwater is collected in a pumping well (or tank) which is located towards the north-eastern end of the basement rather than at the south-western end indicated on the approved plans;
(c)   The approved on site detention (OSD) is located to the east of Unit 9 with the discharge control pits in the north east corner of the site, while the as built survey shows the OSD in the east then wrapping around into the area north of Unit 9;
(d)   the diameter of the stormwater pipe which discharges the Site’s stormwater through 56 Lough Avenue is 150mm. This is inconsistent with the diameter 225mm specified on the approved plans;
(e)   the arrangement of the “high early discharge control pit” and the “100mm wide overflow weir wall” shown on the approved plans differ from the system that has been constructed.

27.   The works referred to in Annexure A are adequate to provide for the proper disposal of stormwater from the built development.
Town planning
28.   As at 17 October 2017, the Building Works did not conform with the plans approved by the Consent as follows:
(a)   Basement car parking level
i.   The basement has been extended to provide storage areas under units 1 and 2;
ii.   A reconfiguration of stairs leading to the units has also taken place;

(b) Ground floor level
i. An increase to unit 9 by approximately 2.365m to the east (approximately an additional 23m2 each floor);

ii.   An increase to unit 8 approximately 900mm to the north (approximately an additional 2.2m2);
iii.   An increase to all units along the southern elevation by up to approximately 800mm;
iv.   Changes to the internal layouts of each unit.

(c)   First floor level
i.   There has been an increase in floor space commensurate with the increase of the ground floor but there has been no increase in the number of bedrooms;
ii.   The approved plans showed a ladder hatch in units 2-7 to allow access to roof storage. These have been removed from the as built plans;
iii.   Changes to the internal layout of the units, including the provision of an ensuite to units 1-7.

(d)   Elevations
i.   West
•   The textured finished panel underneath the first floor window has been replaced by a full brick feature wall.
•   The textured panel to the first floor has been replaced by extending the plain rendered finish to full height.
•   A horizontal element has been removed.
•   The slot window to the first floor bathroom in the textured finish panel has been replaced by a standard window to the ensuite.

ii. East
• Vertical elements, particularly the face brick and textured feature wall have been removed.

iii.   North
•   Minor changes have been made to the massing of the vertical elements resulting from the change in floor space units 8 and 9.
•   Windows have been changed as a result of amendments to the floor plans.

iv.   South
•   Changes have been made to the massing of the vertical elements and windows resulting from the change in floor plans. In particular, the slot windows in the vertical brick feature panels have been replaced by larger windows in some cases, and in others the slot window has been moved off centre.
•   Architectural elements have been removed from the southern elevation of unit 1, particularly the brick feature panel.
•   The approved plans showed cement rendered walls to the driveway which have been replaced with panelling.

(e)   Landscaping
i.   The landscaping plan showed a stencilled concrete driveway, however, a plain concrete driveway has been provided;
ii.   The landscaping plan calls up the architectural plans which show a face brick wall on the street boundary. The original rendered retaining wall has been kept;
iii.   The timber courtyard fence fronting the street and set back off the boundary has been replaced by a colorbond fence on the boundary;
iv.   The landscaping plan shows a meandering path which has been replaced by a straight path;
v.   The turning bay has been increased in size which makes the turning bay more functional but reduces the landscaping treatment in front of unit 1.

Building Code of Australia
29.   As at 17 October 2017, the Building Works did not conform with the BCA as required by the Consent as follows:
(a)   The carpark entrance did not achieve a clearance of 2.2m (BCA clause F3.1; AS2890.1);
(b)   Plumbing and mechanical services to the basement level reduced the head height clearance to a maximum of 2050mm (BCA clause F3.1; AS2890.1);
(c)   Copper water pipes penetrating through the reinforced concrete slap [sic] to the car park level were unsealed (BCA clause C3.15)
(d)   There was a PVC pipe passing though the fire rated wall separating the store room and car park to town house 1 (BCA clause C3.15);
(e)   Electrical conduit passing through the fire rated wall separating the store room and car park to town houses 2, 3, 4 (BCA clause C3.15);
(f)   The hose reel to the car park was not located within 4m of an exit (BCA clause E.1.4);
(g)   The top riser to the stair from the basement to ground floor level to townhouse 1 was inconsistent with the remainder of the flight (BCA clause D2.13);
(h)   The top riser and tread to the eastern egress stair from the basement to ground floor level was inconsistent with the remainder of the flight (BCA clause D2.13);
(i)   The stairway serving from the basement car park to ground floor level contained 4 winders instead of a maximum of 3 winders to townhouses 2, 3, 5, 6 and 7 (BCA clause D2.13);
(j)   The stairways serving from the basement car park to ground floor level contained inconsistent riser heights and treads to townhouses 4, 8 and 9 (BCA clause D2.13);
(k)   The egress stairs to the basement car park were not provided with a contrasting strip (AS1428.1-2009, clause 11);
(l)   The windows to the bedrooms in townhouses 1 to 9 inclusive were capable of opening to greater than 125mm (BCA clause D2.16)
(m)   The handrail to the stairways serving from the basement car park level and ground floor and ground floor to level 1 did not extend to the top riser in townhouses 1 to 9 inclusive (BCA clause D2.17);
(n)   The western exist [sic] from the basement level was provided with cylindrical style door hardware (BCA clause 2.21);
(o)   A fire hydrant system had not been provided to the development (BCA clause E1.3; AS2419.1-2016);
(p)   Portable fire extinguishers had not been provided to the development (BCA clause E1.6; AS2444-2001);
(q)   The exit sign to the eastern exist [sic] was not visible from all points of the basement level (BCA clause E4.7; AS2293.1-2005);
(r)   Permanent electrical supply had not been provided to the development (BCA Parts E and F);
(s)   Evidence of water penetration to the bedrooms of townhouses 1 to 9 inclusive (BCA Performance Requirement FP1.4);
(t) Breach of damp-proof course to ground and level 1 (BCA Performance Requirement FP1.4);
(u)   Non-compliant termite treatment (BCA Performance Requirement BP1.1);
(v)   Non-compliant weepholes (BCA Performance Requirement BP1.1);
(w)  Non-compliant waterproofing of planter boxes (AS4654.2)
(x)   There was no emergency lighting installed in the car park, which exceeds 500m2 in area (BCA clause E4.2 requires emergency lighting for areas of 300m2);
(y)   The sewer overflow gully was located in the driveway and was raised above the ground and not protected from damage. It was also located under the edge of the building above and would run directly into the stormwater system at garage level (AS3500.0 clause 4.6.6.4);
(z)   The roof water discharged directly to the planter boxes which were not designed to receive the flows (BCA F1.1; AS3500.3);
(aa)  The rear pergola of each townhouse was not adequately tied down to the brick pier (BCA clause B1.4; AS 1720.1 or AS1684.2).

30.   These issues can be satisfactorily resolved if the works referred to in Annexure A are carried out.
STRUCTURAL ISSUES WITH THE BUILDING WORKS
31.   The following issues have been identified with the structure of the Building Works carried out to date on the Site:
(a)   The ground floor slab requires some strengthening to ensure compliance with Australian Standards;
(b)   The circular column in the basement is currently inadequate if the column is subjected to fire loading;
(c)   Seeping cracks are present in the basement;
(d)   Honeycombing is present in the slab;
(e)   The level of compaction beneath the external walkway cannot be confirmed;
(f) The beam over the window in townhouse 9 is insufficient;
(g)   There are insufficient weepholes in the shotcrete walls in the basement;
(h)   The steel beam between townhouse 8 and 9 are [sic] not continuous. The beam is supported by a brick wall over the window which is supported by a concrete lintel.

32.   These structural issues can be satisfactorily resolved if the works referred to in Annexure A are carried out.
OTHER CONDITIONS OF CONSENT
33.   The following further conditions of the Consent have not been complied with:
(a)   Condition 29: The Applicant was not notified of the appointment of a Principal Certifying Authority.

REQUIRED WORKS
34.   On carrying out the works set out in Annexure A:
(a)   The building will be fit for occupation and use as a multi-unit development;
(b)   The building will be fit for strata subdivision to create a separate lot for each dwelling;
(c) The building will be suitable for occupation and use in accordance with its classification under the Building Code of Australia (including those provisions relevant to fire safety)
(d)   Having regard to the circumstances of the case and the public interest, a strata subdivision to create a separate lot for each dwelling in the Building will not interfere with the existing or likely future amenity of the neighbourhood
(e)   The structural strength and load-bearing capacity of the Building will be appropriate to the proposed use of the Building.
(f)   The measures to protect persons using the building, and to facilitate their egress from the Building, in the event of fire, will be appropriate to the proposed use of the building
(g)   The measures to restrict the spread of fire from the building to other buildings nearby will be appropriate to the proposed use of the building
(h)   The building will comply with the Category 1 fire safety provisions applicable to the Building’s proposed use.

35.   The land on which the building is located is not the subject of an outstanding order, requirement or notice, other than these proceedings.
DISCRETIONARY MATTERS
Town planning matters
36.   The FSR of the development as constructed is 0.59:1. The development does not comply with the current applicable FSR control (0.5:1), however, it does comply with the FSR control that applied when the Consent was granted (0.6:1). The exceedance of FSR is not discernible from the public domain or from adjoining land, nor does it result in any amenity impacts on the residents or adjoining neighbours.
37.   The development as constructed complies with the maximum building height that applies to the Site (9m).
38.   The development is not out of character in the locality.
39.   The development is of a similar scale to other developments in the neighbourhood.
40.   Demolition of parts of the development to achieve strict numerical compliance would not result in a development which achieved a better level of amenity for future residents or the adjoining properties.
41.   The parties’ planners, Glenn Apps and Michael Brewer, are both concerned about the waste of resources (such as building materials) that would result from the demolition of the development. The planners agree that the development has been built contrary to the current zoning and with an exceedance of the FSR. They agree that the planning issues at hand would be better dealt with by rectification works, rather than demolition. They have agreed on works that could be carried out to improve the presentation and practicalities of the development. These are included in the works listed in Annexure A.
Matters personal to Cando and the Refalos
42.   Mr Refalo is a director and/or secretary of the companies listed below:
(a)   Smythe Street Pty Ltd – appointed 18 February 2014
(b)   Refalo Family Investments Pty Ltd – appointed 18 February 2014
(c)   NSW Developers Pty Ltd – appointed 16 April 2013
(d)   Thirty Four Smythe Street Pty Ltd – appointed 22 May 2015
(e)   Superquest Pty Ltd – appointed 29 June 2015
(f)   Bursill Street Pty Ltd – appointed 18 February 2014
(g)   Smythe Street Investment Pty Ltd – appointed 9 May 2014

43.   Through those companies, Mr Refalo has or had an interest in the properties identified below. However, in each case the interest was acquired after the commencement of construction of the Building on the Site.
(a)   8-12 Good Street, Westmead
(b)   171 Pitt Street, Merrylands
(c)   34 Smythe Street, Merrylands
(d)   80 and 84 Bursill Street, Guildford (these properties have been sold)
(e)   24 Smythe Street, Merrylands (this property has been sold).
ATTEMPTS TO REGULARISE

44. On or around 2 June 2015, Cando made an application for a Building Certificate pursuant to section 149A (as it then was) of the EP&A Actin relation to the Building Works.
45. Also on or around 2 June 2015, Cando made an application to modify the Consent pursuant to section 96AA (as it then was) of the EP&A Act.
46.   On 12 June 2015, Parramatta City Council rejected the building certificate application. A copy of the letter of rejection is at Tab 12.
47.   Also on 12 June 2015, Parramatta City Council rejected the modification application. A copy of the letter of rejection is at Tab 13.
48.   On 31 March 2016 Cando lodged a Development Application to change the use from a new townhouse construction to a boarding house.
49.   On 6 October 2016 the Council refused the Development Application for the proposed change of use.
50.   On 27 April 2017 Cando lodged a further application for a building certificate. This building certificate remains undetermined.
ANNEXURE A – SCHEDULE OF WORKS
A. Drainage:
1.   Carry out drainage works in accordance with the plans of Martens & Associates Pty Ltd numbered:
a)   PS01-E100 revision D dated 23/2/18;
b)   PS01-E200 revision C dated 7/2/18;
c)   PS01-E201 revision B dated 7/2/18; and
d)   PS01-E600 revision A dated 17/1/18.

B. Planning
1.   Set the front fence back in line with the front wall of the Building.
2.   The front fence is to be of masonry construction or masonry piers and timber infill panels which may comprise lapped and capped timber palings.
3.   Provide landscaping in front of the front fence one metre in depth comprising selected local area native species. The depth of the landscaping is also subject to the need for any necessary water/firefighting infrastructure.
4.   The existing retaining wall on the boundary is to be removed and replaced with a new brick retaining wall in accordance with the approved plans referred to in the Consent.
5.   A stencilled or textured finish is to be applied to the driveway between the front boundary and the building line. No finish is to be applied to the car park ramp to ensure that vehicles retain traction.
6.   The western and eastern elevations will be treated as follows:
a)   Weatherproof capping to be applied to the parapet down to the eave level;
b)   The brick corner element to Unit 1 will be painted and rendered with a textured surface, which will be applied full-height from the ground level, wrapping around the southern elevation of Unit 1; and
c)   The ground floor level of the eastern elevation to Unit 9 will be painted in a darker tone.

7.   Vertical timber screens are to be provided to all air-conditioning units on the southern elevation.
C. Building Code of Australia
1.   Not used.
2.   Provide a striker bar and signage in accordance with clause 5.3 of AS2890.6 to indicate the available height to the car park.
3.   The copper water pipes penetrating through the reinforced concrete slab to the car park level are unsealed: Suitably seal the copper pipe water penetration with an approved fire sealant in accordance with the manufacturer’s details.
4.   There is a PVC Pipe passing through the fire rated wall separating the store room and car park to Townhouse 1: Provide a retro fit fire collar around the entire pipe to both sides in accordance with the manufacturer’s details.
5.   Electrical conduit passing through the fire rated wall separating the store room and car park to Townhouses 2, 3, 4: Suitably seal the cable penetration with an approved fire mastic.
6.   The hose reel to the car park is not located within 4m of an exit: Provide a hose reel within 4m of both the east and western exits in accordance with AS2441-2016.
7.   The top riser to the stair from the basement to ground floor level to Townhouse 1 is inconsistent with the remainder of the flight: Rectify the riser height to ensure the riser has a variation of no more than +/- 5mm between adjacent risers and no more than 10mm variation throughout the flight.
8.   The top riser and tread to the eastern egress stair from the basement to ground floor level is inconsistent with the remainder of the flight: Rectify the riser height to ensure the riser has a variation of no more than +/- 5mm between adjacent risers and no more than 10mm variation throughout the flight.
9.   The stairways serving from the basement car park to ground floor level contain 4 winders in lieu of a maximum of 3 winders to Townhouses 2, 3, 5, 6 and 7: Reconfigure the stairway to ensure the stairs contain a maximum of 3 winders.
10.   The stairways serving from the basement car park to ground floor level contain inconsistent riser heights and treads to Townhouses 4, 8 and 9: Rectify the riser height to ensure the riser has a variation of no more than +/- 5mm between adjacent risers and no more than 10mm variation throughout the flight.
11.   The egress stairs to the basement car park are not provided with a contrasting strip: Provide a 50mm to 75mm contrasting strip having a minimum 30% luminance contrast to each tread to the stairways.
12.   The windows to bedroom Townhouses 1 to 9 inclusive are capable of opening greater than 125mm: Relocate the existing window stopper to ensure the maximum opening to the window does not exceed 125mm.
13.   The handrail to the stairways serving from the basement car park level and ground floor and from ground floor to Level 1 does not extend to the top riser for Townhouses 1 to 9 inclusive: the handrail is to be extended to terminate at the top riser of the stairways.
14.   The western exit from the basement level is provided with cylindrical style door hardware: Replace the door hardware with a downward lever action type.
15.   A fire hydrant system has not been provided to the development: Install a hydrant system in accordance with AS2419.1-2005 or as approved in writing by Fire & Rescue NSW.
16.   Provide portable fire extinguishers in accordance with BCA clause E1.6 and AS24444-2001.
17.   The exit sign to the eastern exit is not visible from all points of the basement level: Provide direction exit signs to the eastern side of the basement level to identify the location of the exit.
18.   Provide permanent electrical supply to ensure all electrical and mechanical services are capable of functioning in accordance with the relevant Australian Standards.
19.   There is evidence of water penetration to the bedrooms to Townhouses 1-9 inclusive (including flashing above windows): Provide appropriate capping and flashings to the brick parapets to prevent water penetration to the townhouses. One of the following rectification solutions is required to rectify the defect:
a)   Provide a colourbond metal flashing to the top, rear and sides of the brickwork parapet; or
b)   Render and paint the face of the parapet with a waterproof epoxy based paint in accordance with clause 4.7.4 of AS3700-2011, or
c)   Provide a full weatherproof cladding system to cover the brickwork on all sides.

20.   Damp proof course to ground and level 1: The following scope of works is required:
a)   The render to the external wall is to be modified to ensure the render does not breach the damp-proof course in accordance with clause 12.4.16 of AS3700-2011.
b)   The render to the external wall at the ground floor level is to be saw cut to ensure the render does not breach the damp-proof course.

21.   Termite treatment: To ensure the building achieves compliance with AS3660.1 with respect to termite treatment the following works are required:
a) Ensure the brickwork is exposed for a minimum of 75mm below the weepholes in accordance with Section 4 of AS3660.1.
b)   No garden beds or planter boxes are to encroach onto this 75mm exposed inspection zone. The front garden bed is to be reduced in height by approximately 1.2m on the right hand side.
c)   Install a cavity reticulation system to the rear and northern side of unit 9 where the building is supported on strip footings with no exposed slab edge.

22.   The Weepholes as constructed on site vary between drilled holes where the external wall has been rendered to open perpends in the face brickwork: To ensure compliance with AS3700-2011:
a)   Weepholes are to be provided at a maximum distance of 1200mm.
b)   All drilled weepholes are to extend the full depth of the brickwork and be free of any material to ensure the proper functioning of the weephole.

23.   Not used.
24.   Planter box waterproofing: The waterproofing to the planter boxes is to be applied in accordance with the requirements of AS 4654.2.
25.   Certification is to be provided that the commitments within the BASIX Certificate No. 627863M_02 dated 19 January 2018 have been met.

26.   Not used.
27.   Not used.
28.   The sewer overflow gully is located in the driveway and is raised above the ground and not protected from damage: The overflow from the sewer is not permitted to enter the stormwater system and therefore the gully will need to be provided with a sealed lid. An additional overflow gully is to be provided within the courtyard to Townhouse 1 to ensure any overflow is discharged on to the premises.
29.   The downpipe to the front entry porch is to be modified to discharge into the adjacent downpipe of the main roof area.
30.   Pergolas are not adequately tied down to the brick piers: mechanical fixings are to be provided to the timber members to prevent the timber members from being dislodged from the brick piers.
D. Structural Engineering
1A.   The following rectification works are to be carried out in accordance with the drawings of Australian Consulting Engineers numbered:
•   S0000 revision C dated 8/3/18;
•   S0001 revision B dated 27/11/17;
•   S0002 revision B dated 27/11/17;
•   S0100 revision E dated 8/3/18;
•   S0101 revision E dated 8/3/18;
•   S0200 revision E dated 22/1/18;
•   S0201 revision B dated 27/11/17;
•   S0300 revision D dated 22.1.18;
•   S0301 revision B dated 14/12/17;
•   S0302 revision B dated 8/3/18;
•   S0400 revision B dated 27.11.17.

1.   Screen the slab using an X-ray machine to obtain more clarity on the reinforcement used in the pad footing (shown between gridlines 4 and 5 on drawing S0100 revision E). In the event that the outcome from the slab screening is not adequate, the pad footing is to be replaced. The Respondent’s engineer shall design a new pad and is to provide a full work method statement to the independent expert appointed by the parties on the procedures to be undertaken to replace this pad footing.
2.   The ground floor slab is to be strengthened so as to comply with the Australian Standards as follows:
a)   Inducta Engineering, or another third party who is acceptable to the independent expert appointed by the parties, is to be engaged to carry out an independent analysis of the ground floor slab structure, including integral beams and columns.
b)   Following that analysis, a methodology for strengthening the slab is to be prepared by the Respondent’s engineer and provided to expert strengthening contractors that have been agreed between the parties. The expert strengthening contractors are to have suitable practical experience in the design, installation and performance of the proposed rectification methods.
c)   The strengthening expert is to carry out a full review of the proposed strengthening and provide certification that the strengthening will provide the building with appropriate design safety factors as required by the appropriate standards. As part of the certification, the strengthening expert is to assess the proposed fireproofing methods and certify that the proposed fire proofing methods will adequately protect and ensure satisfactory performance of the carbon fibre strips in the event of a fire.
d)   The strengthening contractors are to carry out the required strengthening works in accordance with the methodology certified in paragraph 2(c) above.
e)   Upon completion of the works, the strengthening contractor is to certify that the works have been completed in accordance with the certified methodology and is to confirm that the slab as strengthened complies with Australian Standards.

3.   A steel column 200x200x6 SHS C350 is to be installed behind the circular column (in accordance with drawings S0100 and S0101 revision E dated 8.3.18) bearing on a 20mm thick steel plate with 4M16 chemical anchors connecting the steel column to the underside of the ground floor slab and to the base plate. The installation of the additional steel column is dependent on the results of the x-ray required in paragraph 2 above. The eccentricity of loading from both the existing concrete column and the new steel column are to be taken into account in the evaluation of the existing pad footing or the design of the new pad footing (if required).
4.   An independent hydraulic engineer must certify that the drainage system in the basement, including sub-soil drainage systems external to the basement walls, is adequate, in order not to jeopardise the structural stability of the basement retaining walls
5.   The retaining fire stair wall between grids 2 and 3, along the southern boundary of the site: A 200mm wide retaining wall is to be constructed in front of the existing shotcrete wall and reinforced with N16-200 vertical bars and N12-200 horizontal bars. This will ensure that the wall is capable of resisting surcharge pressures behind the retaining structure. The slab over is to be extended to restrain this retaining wall at a length that ensures minimum head height is complied with in accordance with the Australian Standards. A section of this wall has been detailed in drawing S0100 revision E dated 8/3/18.
6.   Reverse waterproof membrane is to be installed to all seeping cracks to ensure future seepage does not occur.
7.   Not used.
8.   The builder is to ensure all honeycombing is removed and all exposed steel is treated and cleaned/cut back and filled with Rapid Set Go. The builder must ensure it completes the required work in accordance with the specifications outlined therein.
9.   The external pavement in the south east corner of the site is to be reconstructed after compaction has been completed satisfactorily. The existing pavement is to be ripped up and the soil beneath compacted to reach 98% compaction. A geotechnical engineer is to inspect the soil and confirm the area has reached 98% compaction before the reconstruction of the existing paved area can commence.
10.   The builder is to install a 250PFC and two supporting posts to support the steel beam over the window in Townhouse 9. This is to ensure the beam is supported sufficiently and does not cause issues to the structural integrity of the building. However, if the builder does not wish to install the two posts, the window size may be reduced and brickwork used to support the lintel beam.
11.   Weep holes are to be drilled in the shotcrete wall and Dincel walls of the basement level at 1m spacing.
12.   Not used.
13.   Steel beam between unit 9 and unit 8 is not continuous over the wall. The steel beam extends approximately 75mm-80mm with concrete separating the beam on the other side of the Dincel wall which is approximately 50mm thick. The beam is supported by a brick wall over the window which is supported by a concrete lintel: A BCA consultant is to determine whether any fireproofing requirements apply to the points of bearing of the first floor beams on the Dincel party walls under the BCA. If so, works are to be carried out to ensure those fireproofing requirements are met.
14.   Not used.

The Council accepts that the specified works in Annexure A will render the building safe and able to be occupied. The building will still not comply with the consent due to the departures from the approved plans through changes to the internal layout of the units, inclusion of ensuites in units 1-7 and other changes identified in par 28 of the SOAF. As deposed in his affidavit affirmed 12 April 2017 Mr Refalo was aware of some of the changes made to the approved plans during construction. He believed these were improvements to the development and were minor in nature.
At the hearing the Respondent was given leave to rely on further agreed matters, (being a supplementary agreement (Exhibit 1)) as follows:

SUPPLEMENTARY AGREEMENT
1.   On 30 August 2017 Glenn Apps Council's Consultant Town Planner swore an affidavit annexing a report saying in his opinion as to the compliance of the development with the relevant planning controls and his opinion as to whether the building as built ought to be demolished.
2.   In doing so he considered whether the development as built would have been worthy of achieving approval in its own right should he have been tasked with assessing it as a development application or a s96 modification application. In response Cando adduced evidence from Wallana Associates. There were subsequently 2 joint reports prepared by the planners retained by each party.
3.   In the first of those reports dated 14 December 2011 the planners agreed that it was an appropriate methodology to consider the as built proposal as though it was a fresh development application that they were asked to consider.
4.   There were no areas of disagreement. The planners concluded the matters set out in paragraphs 36 to 41 of the Agreed Statement of Facts exhibit A.
5.   The planners agreed that the planning issues at hand would be better dealt with by looking at rectification works rather than demolition.
6.   They then prepared a list of works that could be carried out to improve the presentation and practicalities of the development.
7.   In a second joint report dated 30 January 2018 the planners prepared a further list of works to be carried out to the development to improve the presentation and practicalities of the development.
8.   The recommendations of the planners in the joint reports have been incorporated into the work set out in Schedule A of the Statement of Agreed Facts.
Development consent conditions
…
Prior to Work Commencing:
21   Prior to the commencement of demolition work a licensed demolisher who is registered with the WorkCover Authority must prepared [sic] a Work Method Statement to the satisfaction of the Principal Certifying Authority (Council or an accredited certifier) and a copy sent to Council (if it is not the PCA). A copy of the Statement must also be submitted to the WorkCover Authority.
The statement must be in compliance with: AS2601-1991 Demolition of Structures," the requirements of WorkCover Authority and conditions of the Development Approval, and must include provisions for:
(a)   Enclosing and making the site safe, any temporary protective structures must comply with the “Guidelines for Temporary Protective Structures (April 2001)”;
(b)   Induction training for on-site personnel;
(c)   Inspection and removal of asbestos, and contamination and other hazardous materials;
(d)   Dust control – Dust emission must be minimised for the full height of the building. A minimum requirement is that perimeter scaffolding, combined with chain wire and shade cloth must be used, together with continuous water spray during the demolition process. Compressed air must not be used to blow dust from the building site;
(e)   Disconnection of Gas and Electrical Supply;
(f)   Fire Fighting – Fire fighting services on site are to be maintained at all times during demolition work. Access to fire services in the street must not be obstructed;
(g)   Access and Egress - No demolition activity shall cause damage to or adversely affect the safe access and egress of this building;
(h)   Waterproofing of any exposed surfaces of adjoining buildings;
(i)   Control of water pollution and leachate and cleaning of vehicles [sic] tyres – Proposals shall be in accordance with the “Protection of the Environmental Operations Act 1997”;
(j)   Working hours, in accordance with this Development Consent;
(k)   Confinement of demolished materials in transit;
(I)   Proposed truck routes, in accordance with this Development Consent;
(m)   Location and method of waste disposal and recycling in accordance with the “Waste Minimisation and Management Act 1995”.
The demolition by induced collapse, the use of explosives or on-site burning is not permitted.

22   A Pedestrian and Traffic Management Plan must be submitted to and approved by Council prior to commencement of demolition and/or excavation, it must include details of the:
(a)   Proposed ingress and egress of vehicles to and from the construction site
(b)   Proposed protection of pedestrians adjacent to the site
(c)   Proposed pedestrian management whilst vehicles are entering and leaving the site
(d)   Proposed route of construction vehicles to and from the site, and
(e)   The Pedestrian and Traffic Management Plan shall be implemented during the demolition and/or excavation period.
Reason: To maintain pedestrian and vehicular safety during construction.

23 A minimum of five (5) working days prior to any demolition work commencing a written notice is to be given to Parramatta City Council and all adjoining occupants. Such written notice is to include the date when demolition will be commenced and details of the principal contractors name, address, business hours contact telephone number, Council's after hours contact number and the appropriate NSW WorkCover Authority licence.
Reason: To protect the amenity of the area.

…
44. All pruning works and tree removals shall be carried out by a suitably qualified tree surgeon/arborist in accordance with the provisions of AS4373-1996 Pruning Amenity Trees and the Tree Works Industry Code of Practice (WorkCover NSW).

Affidavit of Mr Refalo

The Respondent read the affidavit of Mr Refalo a director and shareholder of the Respondent business affirmed 12 April 2017. Mr Refalo’s wife and one of his sons are also directors and shareholders of the Respondent business. The following documents were annexed to Mr Refalo’s affidavit:

an email from Mr El Dardiry architect with Architectural Design Studio Pty Ltd to Mr Refalo dated 25 June 2012 attaching eight aerial photographs of the Site taken on 14 November 2009;

an email from Mr El Dardiry to Mr Refalo dated 25 June 2012 attaching a letter from the Council dated 29 November 2010 and a copy of the consent granted by the Land and Environment Court on 23 July 2004 in proceedings 10175/2004;

an email from Mr El Dardiry to Mr Refalo dated 25 June 2012 attaching a quote and invoice for demolition work by Samaan Demolition Excavation Pty Ltd (Samaan) completed at the Site;

development consent plans for the Site;

a Google street view search of the Site as at December 2007;

a quote from Mr El Dardiry for preparing a construction certificate for the Site;

an invoice for $20,000 paid to Architectural Design Studio Pty Ltd as a deposit for preparing a construction certificate;

an invoice for the remaining amount to be paid to Architectural Design Studio Pty Ltd for preparing the construction certificate;

an email dated 13 February 2013 from Mr Refalo to Mr El Dardiry; and

copies of receipts for the s 94 contribution and the long service levy paid by the Respondent to the Council.

Mr Refalo described a conversation he had with Mr Younan a site foreman who first introduced the Site to Mr Refalo. Mr Younan’s father had put a deposit on the Site but was unable to settle on it. The purchase price for the Site would be $820,000. Mr Refalo said he would be interested in purchasing the Site. Mr Younan provided Mr Refalo with the contact details of Mr El Dardiry.
Within a few days, Mr Refalo called Mr El Dardiry. They had a conversation in which Mr El Dardiry told Mr Refalo that he was aware that the Site had a development consent. He told Mr Refalo that a letter from the Council stated that if a Principal Certifying Authority (PCA) accepted that demolition occurred within five years, the development consent would not have lapsed. Receipts from Samaan showed that demolition had occurred within the five year period. Aerial photographs of the Site 15 weeks after the lapsing date showed vegetation growth more than 15 weeks old. Mr El Dardiry said he could send the letter, aerial photographs and demolition receipts to Mr Refalo. He also said that he had two private certifiers willing to accept that work had been completed prior to the development consent lapsing. Mr El Dardiry sent three emails on 25 June 2012 attaching the letter, aerial photographs and demolition receipts.
Mr Refalo had a further telephone conversation with Mr El Dardiry in late June or early July 2012. Mr El Dardiry said to Mr Refalo “If you buy the site I will get you the construction certificate. It will only take me six weeks to get the CC”.
On or about 3 July 2012, the Respondent purchased the Site and settlement took place. Within a few days of settlement, Mr Refalo asked Mr El Dardiry to prepare a construction certificate. Mr El Dardiry said he would start preparing the construction certificate. Mr Refalo told him that the original plans for the development did not include ensuites. Mr El Dardiry asked if he should include ensuites in the construction certificate. The following day Mr El Dardiry provided a quote for preparing the construction certificate and requested a $20,000 up-front payment to begin preparing the construction certificate. Mr Refalo arranged for payment of the $20,000 by cheque on 5 July 2012.
On or about 12 October 2012 Mr El Dardiry provided a further invoice for the balance owing for preparing the construction certificate for $20,880. The Respondent paid the balance in separate payments between 12-21 October 2012.
After that time, Mr Refalo contacted Mr El Dardiry by telephone to find out when the construction certificate would be issued. He sent Mr El Dardiry an email on 13 February 2013 following up his phone calls. On or about 8 April 2013, Mr Refalo had a further conversation with Mr El Dardiry. Mr El Dardiry told him that he would need to pay the s 94 contribution for the development before the construction certificate was issued.
On 9 April 2013, Mr Refalo attended the Council’s chambers to pay the s 94 contribution. Mr Refalo told a woman at the front counter that he had come to pay the s 94 contribution for the Site and gave her a copy of the Council’s letter dated 29 November 2010. The woman took the letter away and returned about 15 minutes later. She said words to the effect of: “[t]hat is all good, I can accept your payments”. Mr Refalo paid the s 94 contribution of $42,580.49 and the long service levy of $5,971. He sent copies of the receipts to Mr El Dardiry. Mr Refalo deposed that he would not have made the payments had he known that the Council would later assert that consent had lapsed because the demolition was unlawful.
In or about March 2013, Mr Refalo spoke to Mr Younan from Zycon Group Pty Ltd (Zycon) which was engaged to build the development. During the conversation Mr Younan told Mr Refalo that he could build the development for $2,000,000 including GST. Mr Refalo asked to be provided with a contract. In April 2013 Mr Younan told Mr Refalo that he had applied for home warranty insurance which would take a few weeks to obtain. In June 2013 Mr Younan told Mr Refalo that he could start excavation and he would have the insurance before the development had substantially progressed.
On or about 9 July 2013 the Respondent signed a contract with Zycon to construct the development. At the time of signing the contract Mr Refalo believed the construction certificate would be issued imminently. He thought that the only outstanding matter before the construction certificate was issued was insurance for the development.
In July 2013 excavation for the Site commenced. Mr Refalo contacted Mr Younan a number of times after signing the contract to ascertain whether insurance had been arranged. Mr Younan would respond with words to the effect of: “[i]t’ll only be another week.” The insurance certificate was issued in November 2013.
Mr Refalo attended the Site in September or October 2013. The basement and ground floor slab had been constructed. Mr Younan was on site and had a conversation with Mr Prasade a private certifier. Following this conversation Mr Younan told Mr Refalo that Mr Prasade would not issue a construction certificate as building work had gone too far.
Within a day of that conversation Mr Refalo spoke to Mr Yasine a building consultant. Mr Yasine told him that a construction certificate was not needed. He could instead apply to the Council for a building certificate. Mr Yasine told him to continue with the building. Mr Yasine said he was finishing a development at Bardwell Park with a building certificate instead of a construction certificate.

There is no evidence that Condition 44 was complied with before trees were removed. There is no evidence of the contractor’s arboriculture qualification or the method of removal. The work is unlawful and cannot be relied on.
The Respondent has not demonstrated what physical acts disconnection of water required or when it occurred and cannot prove that it was more than de minimis.
The erection of safety fencing is not sufficient to “physically commence” the consent. The erection of a fence is not relevantly “building, engineering or construction work relating to the building, subdivision or work … to which the consent applies” for the purpose of s 95(4) of the EPA Act. There is no evidence as to what purpose was sought to be achieved by the erection of the fencing. There is no evidence that Condition 27 was complied with in relation to the fence given that no PCA was appointed. The work is unlawful and cannot be relied on.
In overall answer to the Respondent, Condition 29 of the consent requires the appointment of a PCA and notice of intention to be given in respect of the erection of a building “prior to commencement of work”. The erection of safety fencing would constitute “work” under s 4(2) of the EPA Act. “Work” includes “…any physical activity in relation to land that is specified by a regulation to be a work for the purposes of this Act, but does not include a reference to any activity that is specified by a regulation not to be a work for the purposes of this Act.” In K&M Prodanovski CA at [33] a condition in identical terms to Condition 29 was found to have been breached when demolition works and geotechnical works were carried out in the absence of compliance with that condition.
The Respondent positively asserts in its Amended Cross-Summons filed in Court on 20 October 2017 that the consent has not lapsed. It has failed to put on any evidence contradicting the position that there is no evidence about compliance with various conditions (which is largely an agreed position). Consequently the Court can have the requisite level of satisfaction that the further work was not carried out in accordance with the conditions of consent. If there was evidence of compliance with the pre-demolition conditions, the onus is on the Respondent to provide that evidence. Its absence is determinative namely the consent was not physically commenced in the manner required. The same conclusion as in K&M Prodanovski CA would be reached here.
The consequence of a finding that the consent has lapsed is that the development is prohibited.

Respondent’s submissions

The consent did not lapse as relevant work commenced on site in May and June 2009 within five years of the consent being granted. The Respondent argued that the Council had the onus of proving the consent had lapsed and had not discharged its onus.
In civil proceedings seeking to restrain the use of premises for an unlawful purpose, the onus of proof lies on a respondent to establish the use was authorised as an existing use, see for example ACR Trading Pty Ltd v Fat-sel Pty Ltd at 72 per Kirby P (Samuels JA and Hunt AJA agreeing), following Morrisv Woollahra Municipal Council (1966) 116 CLR 23 at 33-34 (Taylor, Menzies and Owen JJ), or a use authorised under s 109B of the EPA Act: Liverpool City Council v Maller Holdings Pty Ltd (2013) 211 LGERA 360; [2013] NSWLEC 154 at [73].
However, the situation is different where a council alleges that, even though work was carried out prior to the lapsing date, such work could not have prevented the consent from lapsing because it was carried out in breach of conditions of the consent. Morris followed the decision of the High Court in Vines v Djordjevitch (1955) 91 CLR 512. In that case, the High Court noted that where an enactment denied a right or liability in a particular case “by reason of additional or special facts” the burden of proof was likely to fall on the party seeking to rely on those additional or special facts at 519.
Whilst the Respondent bears the onus of establishing building work was carried out prior to the date on which the consent would otherwise have lapsed, it is the Council that bears the onus of proving that such work was unlawful (and therefore could not be relied upon) because the work was carried out in breach of the conditions of consent. That is because these are additional or special facts. The Council has not identified a single case in which the Court has held that a landowner, and not the council, bears the onus of proving a failure to comply with a condition of consent. If that were the case, it could lead to potentially absurd results (for example, a landowner being forced to prove that every condition of a consent issued many years prior had been complied with at a particular point in time). This would, in many cases, be almost impossible. This cannot have been the intention of the legislature. As noted in Vines at 519:

In the end, of course, it is a matter of the intention that ought, in the case of a particular enactment, to be ascribed to the legislature.

The removal of trees and shrubs at the Site constitutes work “relating to” the building and would therefore prevent the consent from lapsing. In Hunter Development Brokerage at [98] Tobias JA (Santow JA and Stein AJA agreeing) found that erection of a building commences “…with clearing of the site, followed by its pegging out and then the digging of trenches for footings.” In Besmaw Pty Ltd v Sutherland Shire Council (2003) 127 LGERA 413; [2003] NSWLEC 181 the removal of vegetation was sufficient to prevent lapsing. Talbot J noted at [111] that for work to be sufficient to prevent lapsing it needed to truly relate to the approved development and be a “genuine attempt” at saving the consent from lapsing. Similarly, Tobias JA (Santow JA and Stein AJA agreeing) in Hunter Development Brokerage at [86] held that building work “requires physical activity which involves an appearance of reality and which is not merely a sham.”
Condition 29 begins “[p]rior to commencement of work...”. As the reason for its imposition is stated to be “legislative requirement” the condition intends to repeat the requirements of the EPA Act. Section 81A provided as at July 2013 that “commencement of the erection of a building” could not occur without the appointment of a PCA. Several cases have held that s 81A does not require a construction certificate for preparatory work such as demolition, see Smith v Wyong Shire Council [2008] NSWLEC 115 at [11], North Sydney Council v Moline; North Sydney Council v Tomkinson (No 2) [2008] NSWLEC 169 at [75]. The same reasoning in these cases supports a finding that a PCA was also not required for demolition, site clearing or other work such as the disconnection of water. A PCA must be appointed in the circumstances under s 81A(2)(b2). The work referred to in Condition 29 is work the EPA Act says cannot commence until a PCA has been appointed and a construction certificate obtained. Neither is required for site clearing or disconnection of water. That is supported by the reasoning in K&M Prodanovski CA at [34].
The Council bears the onus of proving that trees and shrubs were not removed in accordance with Condition 44 which requires removal by a “qualified tree surgeon/arborist”. In any event, whether the trees and/or shrubs were removed by a qualified tree surgeon or arborist was irrelevant as the breaches were admitted. Further, it would not be possible to prove that Condition 44 was complied with as the trees had been removed prior to the Respondent purchasing the Site.
In the event that the Respondent bears the onus of proving the consent had not lapsed, it relies on the works described in the quote dated 7 May 2009 extracted at [38] above. These included the disconnection of water and the installation of site construction safety fencing which had been in place since at least December 2007, in addition to the clearing referred to at [58] above.

Consideration of lapsing of consent

As identified above in [57], works relied on to establish physical commencement of a consent must be lawful in order for them to be work “relating to” the approved development, here a building.
The Council has not disputed that the further work itemised separately to demolition by the Respondent took place within the relevant five year period specified in s 95(1) namely by 23 July 2009 on the Site. Under s 95(4) development consent for the erection of a building does not lapse if building, engineering or construction work “relating to” the building is physically commenced on the relevant land in the required timeframe. Although not stated explicitly I infer that the Respondent relies on the further work as construction work as it cannot be characterised as engineering or building work. At issue is whether that further work was conducted lawfully so that it related to the physical commencement of the building work the subject of the consent (clearing of trees and shrubs, fence); or whether it related to the development the subject of the consent at all (fence); or whether there is evidence of physical work related to the development (water disconnection). Section 95(4) does not refer to demolition work or preliminary work.
An important issue to resolve in light of the parties’ submissions is who bears the onus of proof on the issue of whether the consent has lapsed. Both parties essentially seek a finding and/or a declaration that the consent has or has not lapsed. The Council seeks a declaration that the development was prohibited because what has been built is not conforming with the PLEP and was built without development consent. The absence of development consent hinges on a finding that the consent has lapsed. The Council as the moving party would ordinarily bear the onus of proof on the balance of probabilities of establishing matters relevant to its case per Upper Hunter Sustainable Industries Association Inc v MACH Energy Australia Pty Ltd (No 2) (2017) 244 LGERA 361; [2017] NSWLEC 87 at [12]. In Dillon v Gosford City Council [1995] NSWCA 124 at 5, Sheller JA (Handley JA agreeing) held citing Drummoyne Municipal Council v Lebnan (1974) 131 CLR 350; [1974] HCA 34 at 360 (Barwick CJ, Menzies, Gibbs, Stephen and Mason JJ) that a council may bear the onus of proving that a development consent had lapsed noting in that case that the appellant (who was seeking to rely on an exception to a prohibition against quarrying which depended on the work commencing within a particular time) bore the onus of establishing that the work had commenced. In Drummoyne Municipal Council v Lebnan a council which sought to restrain respondents from proceeding with a development had the onus of proof “…of establishing the facts necessary to show that the construction which it sought to restrain was not covered by the approval which it had given, or, in other words, the onus of proving that the approval had lapsed” at 360 (Gibbs J, Barwick CJ, Stephen, Menzies and Mason JJ agreeing).
At the outset of the hearing, on the basis of the conditions of consent not complied with as agreed in the SOAF and the understanding that the Respondent relied on demolition, the Council could readily discharge the onus of proof that the demolition did not relate to the building the subject of the consent. Only during the hearing did the Respondent seek to rely on further work now the subject of consideration. As noted above this caused the Council to submit that additional conditions of consent not referred to in the SOAF had not been complied with. The changes required the Council to respond on the run to matters which in some instances are not matters they could be expected to be aware of at all or without further inquiry. It is not axiomatic that a council, if a moving party, should always bear the onus of proof of establishing a consent has lapsed where not all relevant matters may be within or can reasonably be expected to be within the knowledge of a council.
The Council submitted that as the Respondent seeks to rely on the consent it bears the onus of proof. The Respondent has filed a cross-claim which seeks a declaration that the consent has not lapsed and there is consequently strength in the Council’s submission.
Further, the Respondent accepted in its written submissions that it bore the onus of proof that it had carried out work within time. It argued that whether that work was lawful, meaning carried out in accordance with conditions of consent, was a matter the Council must prove relying on Vines in doing so. At 519 the High Court (Dixon CJ, McTiernan, Webb, Fullagar and Kitto JJ) relevantly held:

…in whatever form the enactment is cast, if it expresses an exculpation, justification, excuse, ground of defeasance or exclusion which assumes the existence of the general or primary grounds from which liability or right arises but denies the right or liability in a particular case by reason of additional or special facts, then it is evident that such an enactment supplies considerations of substance for placing the burden of proof on the party seeking to rely upon the additional or special matter…

The obligation to carry out work lawfully in order for it to relate to physical commencement is part and parcel of establishing that work can be relied on, as held in numerous authorities such as Iron Gates and many subsequent cases. The breach of a condition does not arise as an exculpation or an excuse inter alia in an enactment, which Vines is addressing. The Respondent’s distinction was not made in any of the Court of Appeal cases cited above in [44] including K&M Prodanovski CA which considered whether conditions of consent had been met in the carrying out of work. Consequently I do not accept this submission of the Respondent. The better view is that the Respondent bears the onus of proof of establishing the consent had not lapsed. This requires proof on the civil standard that the work it relies on was conducted in compliance with relevant conditions of the consent and any other matter necessary to establish that the work amounted to physical commencement.
As the Council submitted regardless of who bears the onus of proof the requirements of several conditions of the consent have demonstrably not been met as the Council has not received the necessary notification of compliance, as identified in the SOAF. Alternatively, if I am wrong about the onus of proof resting on the Respondent and it should be the Council, the Council has established an evidentiary basis for its argument, namely that there is no evidence on the Council’s files that various conditions of consent had been complied with at the time the further work was undertaken. The evidentiary onus therefore falls on the Respondent to prove that relevant conditions of the consent were complied with.
A complete answer according to the Council to the further work now relied on is Condition 29 which required a PCA to be appointed before work commenced. The Council asserted in reliance on K&M Prodanovski CA at [33] this meant the further work. Contrary to that submission, in K&M Prodanovski CA one submission of the respondent council that the consent in question had lapsed was not accepted in relation to an analogous argument concerning a condition in similar terms to Condition 29. The Court of Appeal held that a condition requiring the appointment of a PCA prior to any work commencing by the person with the benefit of the consent and a construction certificate did not mean that a PCA had to be appointed before any preliminary work (in that case geotechnical investigations) conducted by the appellant could occur, at [34] (Meagher JA, Leeming JA and Sackville AJA agreeing). Work in the relevant condition was held to mean building work at [34]. The same conclusion was arrived at in Sharp v Hunters Hill Council [2002] NSWLEC 27; (2002) 120 LGERA 155 at [46]-[59] addressing whether a construction certificate was required before demolition could occur. Applying the same reasoning, Condition 29 is not engaged in relation to the further work relied on by the Respondent and does not therefore assist the Council’s submissions.
I will now consider the further work. The clearing of trees and shrubs as identified in the evidence relied on by the Respondent set out in [15(a)] and [15(d)] above (which is more than the quote and invoice from Samaan) has the potential to satisfy physical commencement based on Tobias JA (Santow JA and Stein AJA agreeing) in Hunter Development Brokerage at [96]-[107] and Besmaw at [101]-[112], as the Respondent submitted at [74] above. As identified in Besmaw at [101] “construction work” is not defined in the EPA Act and has a wide meaning. Provided such work represents a genuine attempt to physically commence a consent and is an initiatory step (Besmaw at [101] citing Owendale Pty Ltd v Anthony (1967-8) 117 CLR 539; [1967] HCA 20 at 580 (McTiernan J) it can satisfy the requirement of commencement within five years.
Similar findings were made in Hunter Development Brokerage by Tobias JA (Santow JA & Stein AJA agreeing) at [98]:

The point to be taken from the emphasised part of that passage [Green v Kogarah Municipal Council (2001) 115 LGERA 231; [2001] NSWCA 123 at [70]] is that the erection of a dwelling begins with clearing of the site followed by its pegging out and then the digging of trenches for footings. It must logically follow that the erection commences with the first of those items. It matters not that neither the clearing of the site, its pegging out nor the digging of trenches involves the actual erection of the fabric of the building. So in the present cases, once it is accepted that the survey and geotechnical investigation work that was carried out was “engineering work”, it must follow that that work, in the context of a development consent to a subdivision was, to adopt the words of McTiernan J in Owendale, “an initiatory step” in the process of subdividing the relevant land in accordance with that consent. Provided that “initiatory step” is a necessary part of that process that is all the statutory provisions require. Accordingly, whether one describes that step as preparatory is irrelevant.

In order to relate to the development the clearing had to be lawful. Condition 44 required tree clearing to be undertaken by a qualified arborist. This was not a matter about which the Council was required to be informed, unlike other conditions of the consent the subject of agreement in the SOAF. There is no evidence that Condition 44 was complied with. The Respondent has the onus of establishing that it was complied with and has not done so. It cannot therefore rely on the tree clearing as work “relating” to the consent.
Turning to water disconnection, what physical work was required in order to achieve this is unknown. The two words “water disconnection” in the Samaan quote dated 7 May 2009 extracted above at [38] and the invoice issued and presumably paid for unspecified work can give rise to an inference that the work in the quote was completed. The extent of work is unknown from these two business records. No evidence from the Respondent establishes that water disconnection satisfies the carrying out of physical work relating to the building the subject of the consent.
Turning to the temporary safety fence at the front of the Site as shown in the photograph identified in [15(e)] above, Condition 27 required its approval by a PCA. There is no evidence that a PCA was appointed in 2009 when the fence was installed and it is an agreed fact that no PCA was appointed by the Respondent as shown in the photograph identified in the SOAF at par 12. The burden of proof of compliance rests on the Respondent. This condition has not been proven to have been complied with. The further submissions of the Council that the purpose of the fence has not been identified so that whether it relates to the physical commencement of the building has not been established is also accepted, given the absence of evidence.

None of the further work of clearing trees and shrubs, water disconnection or safety fencing related to the physical commencement of the building the subject of the development consent in the relevant period. Site clearing was also referred to by the Respondent but no evidence about this was provided. The Respondent has not established that any construction work relating to the building the subject of the development consent was physically commenced on the Site.
I find that development consent JE/01904/03 lapsed in 2009. The development now built on the Site resulted in a breach of the EPA Act under s 76A(1)(a). As a result of changes in the PLEP it is also now prohibited development under s 76B.

Exercise of discretion to make declaration and order

I must now determine whether I should make a declaration and/or orders in the exercise of my discretion. Section 20 of the Court Act specifies the Court’s wide jurisdiction in civil enforcement proceedings. Section 22 states that as far as possible all matters in controversy between the parties may be completely and finally determined to avoid multiplicity of proceedings concerning any matters before it. Under s 23 the Court has wide powers to make appropriate orders in relation to any matter in relation to which it has jurisdiction. Its wide powers to make orders as it thinks fit to remedy or restrain a breach under the EPA Act arise from s 124. Section 124(2)(b) refers to making an order for demolition where a breach comprises the erection of a building or the carrying out of work. No application has been made under subs (3) by the Respondent that the proceedings be adjourned to enable a development application to be obtained.
The unusual declaration and orders sought by the Respondent are set out in [5] above. The orders sought are to the effect that the works in Annexure A of the SOAF be carried out with independent certification of completion following receipt of which the Court is to make a declaration that the building can be occupied without an occupation certificate.
The Council submitted that it was beyond power to make the orders and declaration sought by the Respondent. I agree that the Respondent’s orders and declaration give rise to two further breaches of the EPA Act, namely no occupation certificate in breach of s 109M and the building of development not in compliance with a development consent in breach of s 76A. The Council submitted that such orders are not a remedy and the Court does not have power to make them. As the Respondent has unsuccessfully resisted the Council’s legal case it is difficult to see how the relief it seeks can be considered, even accepting that the Court has wide discretion. I do not therefore need to resolve this issue.
I will determine what remedy if any should be granted on the Council’s application. The Council seeks a declaration that a prohibited development in breach of s 76A(1)(b) has been built by the Respondent as the consent has lapsed. The Respondent submitted that as no practical utility can arise from the making of a declaration it should not be made citing Lani at [20].
The Respondent’s submission of no practical utility is based inferentially on the expectation that no changes (which would be likely to require expenditure) should be made to the existing building to enable its use for residential purposes. The Respondent relies on the agreement of the parties’ town planners that the extensive building work in Annexure A can make the building safe and habitable and the town planners’ opinion that an acceptable planning outcome is achieved if the building is allowed to remain. The Council’s submission that the Site could be used for an alternative purpose is described as untenable. The Respondent’s application to use the existing development as a boarding house was rejected on 6 October 2016 (SOAF at par 49), unsurprisingly given that it did not comply with the planning requirements such as the floor space ratio for the current zone. I do not accept the submission that no practical utility as submitted inferentially by the Respondent prevents a declaration and possible orders being made.
Lani at [23] identified why caution should be exercised in the making of declarations in civil enforcement proceedings where criminal enforcement would also be available inter alia. Lani did not consider the circumstance of a prohibited development having been carried out resulting from the lapsing of a consent.
These proceedings while they can be described as civil enforcement clarify the important matter of the legal status of the Respondent’s development consent. As the Council submitted the Court has generally made a declaration concerning whether a development consent has lapsed. Numerous cases are cited in the Council’s submissions where such a declaration has been made. The legal status of a consent which would otherwise run with land is an important matter to clarify. As a result of my finding that the consent lapsed the development on the site is prohibited. I consider it appropriate to make the declaration sought by the Council in prayer 1(a) of the Further Amended Summons.
In relation to whether consequential orders ought be made, the orders sought by the Council are set out in the Further Amended Summons as demolition of the existing dwelling (prayer 1(b)) or an order restraining use of the development for residential purposes until a development consent has been obtained and also a building certificate as provided by s 149A of the EPA Act (prayer 1(c)). The declaration and orders in prayer 2 need not be considered.
I must determine if I should order demolition or the alternative order. The Respondent submitted, relying on Warringah Shire Council v Sedevcic at 339 (Kirby P) that the conduct of the parties in situations such as the present may be relevant in exercising the Court’s discretion under s 124 of the EPA Act. Mr Refalo has attempted to explain in his affidavit his decision-making processes which have resulted in his predicament. According to Mr Refalo he, acting for the Respondent, bought a property on or about 9 October 2012 many years after a development consent was granted in 2004. Mr Refalo made inquiries on the issue of commencement of the consent see [39] above.
Mr Refalo in his affidavit described his state of mind and suggested that the Council caused him to act in reliance on the consent because of its letter to him dated 29 November 2010. While that may well have been Mr Refalo’s understanding it is flawed. Properly viewed the Council’s letter provides no assurance that the consent had not lapsed. The Council expresses no opinion, and essentially fence sits. The letter does state that the matter of physical commencement should be addressed by the PCA when appointed. Mr Refalo acting for the Respondent failed to appoint one before building commenced (see SOAF at par 21).
According to his affidavit Mr Refalo was aware that a construction certificate was required yet allowed building work to commence before one was obtained at [18] above. A council officer stating after building commenced that a building certificate could be obtained is correct insofar as the building work was concerned. That a council staff member accepted s 94 contributions on or around 9 April 2013 can provide no indication of tacit acceptance by the Council that the consent had not lapsed. Construction of the development commenced as a result of Mr Refalo’s actions in July 2013. Based on his affidavit Mr Refalo was apparently poorly advised but Mr Refalo is nevertheless the architect of his own predicament.
Although less relevant to the exercise of discretion I note that changes were made to the approved plans by Mr Refalo in the course of the building work without the necessary modification application being made, as he candidly identifies in his affidavit. That he considered the changes were to improve the development does not excuse his failure to comply with the EPA Act in this regard.
Mr Refalo also addressed in his affidavit the substantial holding costs being incurred by the Respondent. I accept that these are being incurred but whether there is hardship caused to Mr Refalo and his family as shareholders and directors of the Respondent as a result is not known from his affidavit. I have not been provided with a comprehensive account of the Respondent’s financial position or of Mr Refalos’s for that matter. The SOAF at par 42 identifies a number of property interests held by companies of which Mr Refalo is a director and/or secretary.
Other matters referred to in Mr Refalo’s lengthy affidavit such as his unsuccessful attempts to regularise the building work through obtaining a building certificate, having works-as-executed drawings prepared to achieve this and unhappiness at council officers’ behaviour in not providing reasons for refusal of a building certificate do not assist in the exercise of discretion before me.
The only case I have been referred to where a similar factual scenario arose was Council of the City of Sydney v Karimbla Properties (No 24) Pty Ltd [2014] NSWLEC 77, an interlocutory decision. In Karimbla the Council of the City of Sydney sought an interlocutory injunction restraining Karimbla from carrying on development of five buildings in Waterloo for which it did not have a construction certificate. Absence of a construction certificate was not disputed. At the time the injunction was sought four of the five buildings had been partially constructed. Craig J found that the balance of convenience did not favour issuing an injunction to stop work at [27]. Karimbla did not proceed to final hearing. The legal issue here of a building for which no construction certificate was obtained and therefore no occupation certificate can issue did not have to be resolved.
Describing the public interest in this case as the proper and efficient use of resources for development as the Respondent did ignores the equally major public interest issue of whether the statutory scheme for regulating development under the EPA Act has been complied with. As the Council identified, the change in zoning of the Site and surrounding area reflects the Council’s desire for a different built form. The prohibited development is not in conformity with the desired built form.
The town planners’ opinion of what they considered an appropriate planning response in the circumstances is unhelpful in that they are considering a narrow range of issues compared to what the Court must consider.
Ordering demolition of a largely completed building albeit one with extensive repair work required is financially onerous. There are other legal avenues for the Respondent to explore if I do not order demolition. Those canvassed in court included making an application to the Council for a planning proposal for the Site or lodging a new development application for a conforming use. I understand the latter may well involve alterations to the existing structure and therefore cost. Another possibility of carrying out additional building work for which a construction certificate can issue was also identified. I make no finding on the legal adequacy of that approach.
The Respondent’s submissions on the application of s 22 of the Court Act to the effect that the Court should finally resolve now in these proceedings to the Respondent’s satisfaction the future use of the building in its current form is unrealistic given the Respondent’s legal position. As the Respondent has taken the view that the existing building once substantially repaired as agreed in Annexure A of the SOAF should be available for residential use, other options which provide a potential legal remedy to it have not been explored or at least no evidence is before me about these. Consequently the Court cannot give them any specific consideration in drafting orders. The broad order in prayer 1(c) is appropriate.

Costs

The usual rule in Class 4 proceedings is that costs follow the event so that the Respondent would be liable for the Council’s costs. I have not heard argument about costs. I will make an order for costs to that effect unless a notice of motion seeking another costs order is filed within 14 days of this judgment.

Declaration and orders

The Court makes the following declaration and orders:

The Court declares that the Respondent, by itself, its servants and/or agents, by erecting a multi-unit development containing nine townhouses and basement car parking on land described as Lot 190 in Deposited Plan 1060765 (known as 527 Woodville Road, Guildford) (the Premises) carried out prohibited development for which no development consent was in force in breach of s 4.3 (formerly s 76B) of the Environmental Planning & Assessment Act 1979 (the Act).

The Court orders that the Respondent, by itself, its servants and/or agents, be restrained from using the Premises or permitting the Premises to be used for residential purposes until such time as that use is authorised by a development consent and the multi-unit development containing nine townhouses and basement car parking is the subject of a building certificate pursuant to s 149A of the Act.

The Respondent is to pay the Applicant’s costs of the proceedings unless a notice of motion seeking a different costs order is filed within 14 days.

The exhibits may be returned.

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Decision last updated: 04 June 2018

Medium Neutral Citation:	Cumberland Council v Cando Management and Maintenance Pty Ltd [2018] NSWLEC 83
Date of orders:	01 June 2018
Decision date:	01 June 2018
Jurisdiction:	Class 4
Before:	Pain J
Decision:	See par [114]
Catchwords:	ENVIRONMENT AND PLANNING – completed multi-dwelling development for which no construction certificate obtained so that occupation certificate not available – no principal certifying authority appointed –lapsing of development consent – change in zoning prohibited multi dwelling development – exercise of discretion to make declaration of prohibited development – no demolition ordered – consequential order made restraining residential use until development consent for complying use obtained
Legislation Cited:	Land and Environment Court Act 1979 ss 20, 22, 23 Environmental Planning and Assessment Act 1979 ss 4, 76A, 76B, 81A, 94, 95, 109B, 109F, 109H, 109M, 123, 124, 149A, Parramatta Local Environmental Plan 2011
Cases Cited:	ACR Trading Pty Ltd v Fat-Sel Pty Ltd (1987) 11 NSWLR 67 Besmaw Pty Ltd v Sutherland Shire Council (2003) 127 LGERA 413; [2003] NSWLEC 181 Coalcliff Community Association Inc v Minister for Urban Affairs & Planning (1999) 106 LGERA 243; [1999] NSWCA 317 Council of the City of Sydney v Karimbla Properties (No 24) Pty Ltd [2014] NSWLEC 77 Dillon v Gosford City Council [1995] NSWCA 124 Drummoyne Municipal Council v Lebnan (1974) 131 CLR 350; [1974] HCA 34 F Hannan Pty Ltd v Electricity Commission of New South Wales [No 3] (1985) 66 LGERA 306 Great Lakes Council v Lani; Great Lakes Council v Lani and Lampo Pty Ltd (2007) 158 LGERA 1; [2007] NSWLEC 681 Green v Kogarah Municipal Council (2001) 115 LGERA 231; [2001] NSWCA 123 Hunter Development Brokerage Pty Ltd v Cessnock City Council; Tovedale Pty Ltd v Shoalhaven City Council (2005) 140 LGERA 201; [2005] NSWCA 169 Iron Gates Developments Pty Ltd v Richmond Evans Environmental Society (1992) 81 LGERA 132 K&M Prodanovski Pty Ltd v Wollongong City Council (2013) 195 LGERA 23; [2013] NSWCA 202 Liverpool City Council v Maller Holdings Pty Ltd (2013) 211 LGERA 360; [2013] NSWLEC 154 Miller v Commissioner of Police [2004] NSWCA 356 Morris v Woollahra Municipal Council (1966) 116 CLR 23 North Sydney Council v Moline; North Sydney Council v Tomkinson (No 2) [2008] NSWLEC 169 Owendale Pty Ltd v Anthony (1967-8) 117 CLR 539; [1967] HCA 20 Sharp v Hunters Hill Council [2002] NSWLEC 27; (2002) 120 LGERA 155 Smith v Wyong Shire Council [2008] NSWLEC 115 Upper Hunter Sustainable Industries Association Inc v MACH Energy Australia Pty Ltd (No 2) (2017) 244 LGERA 361; [2017] NSWLEC 87 Victims Compensation Fund Corporation v District Court of New South Wales [2002] NSWCA 355 Vines v Djordjevitch (1955) 91 CLR 512 Warringah Shire Council v Sedevcic (1987) 10 NSWLR 335
Category:	Principal judgment
Parties:	Cumberland Council (Applicant) Cando Management and Maintenance Pty Ltd (Respondent)
Representation:	COUNSEL: J McKelvey (Applicant) P Tomasetti SC and R O’Gorman-Hughes (Respondent) SOLICITORS: Sparke Helmore (Applicant) Swaab Attorneys (Respondent)
File Number(s):	16/150312

Drawing Title	Drawing No.	Issue	Date
Floor Plans 04	B-010	DC	23/04/2015
Floor Plans 01	B-011	DC	23/04/2015
Floor Plans 02	B-012	DC	23/04/2015
Floor Plans 02	B-013	DC	23/04/2015
FSR Calculations	B-014	DC	23/04/2015
Elevations	B-020	DC	23/04/2015