Gosford City Council v Beville

[2003] NSWLEC 79

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Land and Environment Court

of New South Wales

CITATION:	Gosford City Council v Beville [2003] NSWLEC 79
PARTIES:	APPLICANT Gosford City Council RESPONDENT John Alexander Beville
FILE NUMBER(S):	(4)0477 of 2002
CORAM:	Pain J
KEY ISSUES:	Development Consent :- was complying development certificate validly issued - complying development certificate void - timber deck erected pursuant to complying development certificate Injunctions and declarations :- whether Court should exercise its discretion to order removal of the timber deck
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979 s 101 Gosford Planning Scheme Ordinance cl 45CE
CASES CITED:	ACR Trading Pty Ltd v Fat-Sel Pty Ltd (1987) 11 NSWLR 67; Warringah Shire Council v Sedevcic (1987) 10 NSWLR 335
DATES OF HEARING:	5, 7/02/2003
DATE OF JUDGMENT:	02/11/2003
LEGAL REPRESENTATIVES:	APPLICANT Mr P Donnellan (solicitor) SOLICITORS PJ Donnellan & Co RESPONDENT Mr B Spinks (solicitor) SOLICITORS Robinson Legal

JUDGMENT:

IN THE LAND AND

ENVIRONMENT COURT

OF NEW SOUTH WALES

(4) 0477 of 2002

Pain J

11 February 2003

GOSFORD CITY COUNCIL

Applicant
v

JOHN ALEXANDER BEVILLE

Respondent

Judgment

Introduction

1 The Applicant Council sought declarations and orders in its Class 4 Application as follows:

1. A Declaration that the development ("the Development"), being the timber decking erected at the rear of the land being Lot 1 in Deposited Plan 201059 at 54 Coral Crescent Pearl Beach in the State of New South Wales ("the Land") is not complying development.

2. A Declaration that the complying development certificate determined on 29 November 2001 by Jennifer Dallas, Accredited Certifier/Principal Certifying Authority No 6010, with respect to Complying Development No 1011/01 relating to the Development is void and of no effect.

3. A Declaration that the Development is unlawful.

4. An Order that the Respondent be required to demolish or cause to be demolished the Development.

5. An Order that the demolition referred to in Order 4 be carried out within 3 months of the making of Order 4.

6. Costs.

7. Such further or other orders as this Honourable Court thinks fit.

2 The issues which it is necessary for the Council to prove are that the timber decking erected at the rear of the Respondent’s property is not complying development, and that the Complying Development Certificate dated 29 November 2001 (the Certificate) issued in relation to the decking is void. Clause 45CE(1) of the Gosford Planning Scheme Ordinance (the Ordinance) provides:

Development listed in Schedule 11 is complying development if:

(a) it is local development of a kind that can be carried out with consent on the land on which it is proposed, and
(b) it is not an existing use, as defined in section 106 of the Environmental Planning and Assessment Act 1979, subject to subclauses (2) and (3).

3 The particular provision that concerns this matter is cl 45CE(3)(c) of the Ordinance. That provides:

(3) Development is not complying development if it is carried out:
(c) on land that is within 50 metres of a beach that has been subject to a Coastal Processes study prepared for the Council…

4 I am satisfied that there has been such a study conducted for the Pearl Beach area as reflected in references in the Broken Bay Beaches Coastal Management Plan (the Management Plan) which was tendered in evidence by the Council (exhibit B). The Management Plan makes reference to the Broken Bay Beaches Coastal Management study (the study). The Management Plan is stated as having been prepared in accordance with the Coastline Management Manual prepared by the New South Wales Government, September 1990. The Management Plan also states that the Management Plan was adopted by Gosford City Council on 31 August 1999. The Certificate was dated 29 November 2001, well after the Management Plan and study had been adopted by the Council.

5 There was no evidence presented to challenge the Council’s evidence in relation to these matters, and indeed it is difficult to see how evidence could be produced which contradicts these processes. The Respondent’s property is clearly located within 50 metres of Pearl Beach, which has been the subject of a Coastal Processes study, and therefore cl 45CE(3)(c) of the Ordinance does apply. I am therefore satisfied that the deck in question is not complying development. It would appear there was no legal basis on which the Certificate could have been issued in the circumstances.

6 I note that evidence was produced that the timber decking was constructed by the Respondent in conformity with the Certificate which was issued by an accredited certifier, as referred to in the declaration sought in Prayer 2 of the Class 4 Application.

7 It had apparently been the intention of the Respondent to argue that there was a bar to the proceedings being taken by the Council under s 101 of the Environmental Planning and Assessment Act 1979 (the EP&A Act). That defence was not available due to lack of evidence of any public notification as required by s 101 of the EP&A Act and related regulations.

8 On the evidence presented to me by the Council I am satisfied the Certificate is void. Having made those findings I am prepared to make the declarations sought in Prayers 1, 2 and 3 of the Council’s Class 4 Application. The question therefore arises as to whether the order for demolition sought in Prayers 4 and 5 of the Class 4 Application ought to be made. I heard extensive argument on that issue.

Should demolition be ordered?
Respondent’s argument on discretion

9 The solicitor for the Respondent argued that in the exercise of the Court’s broad discretion in such cases, it should not make an order for demolition. Warringah Shire Council v Sedevcic (1987) 10 NSWLR 335 and ACR Trading Pty Ltd v Fat-Sel Pty Ltd (1987) 11 NSWLR 67 were relied on as stating the Court’s discretion is wide, a relevant consideration to the exercise of discretion is that the breach is technical, the discretion to refuse relief will be more readily exercised where a static building must be destroyed and the discretion permits the Court to soften the application of rules that would produce an unjust result

10 Given these principles, it was submitted by the Respondent’s solicitor that the order for demolition sought would require the demolition of the timber deck in circumstances where the Respondent had taken reasonable steps to comply with the law and obtained consent for the development through the complying development certificate process. Further, the deck had no visual impact on neighbours and there was no evidence of complaints from neighbours. Clearly the Respondent would be put to expense as the Respondent had already attempted to obtain development consent (by obtaining the certificate), had built the deck in good faith, defended these proceedings and obtained an expert report in relation to these proceedings, so that demolishing the deck would clearly be a further financial burden. It was submitted the issue in this case was a minor technical breach of the EP&A Act.

11 A report prepared by Lawson and Treloar Pty Ltd (exhibit 1) was tendered to the Court by the Respondent. This was a coastal engineering investigation in relation to the Respondent’s property. The report was relied on by the Respondent, particularly at p 7 where it states that:

From a coastal engineering point of view, the proposed re-development of this site will cause no interference to normal coastal processes now and in the foreseeable future and have no effect on adjoining properties. It is not in short term danger from ocean inundation by storm tide or wave run-up.

12 The Respondent therefore submitted that there was no impact on the environment as a result of the deck being constructed. I should note, however, the report continued in the same paragraph at p 7:

However, due to the construction being located seaward of the 2097 erosion line, it is possible that the re-development will be damaged by storm erosion.

Council’s argument on discretion

13 The Council argued that I should exercise my discretion to order demolition. The Council relied on an affidavit of Anthony Tuxworth sworn 6 February 2003. Mr Tuxworth is the manager of Planning and Development for Gosford City Council. He gave evidence that the subject deck is seaward of the 2098 erosion hazard line, and the building hazard line as determined under the Management Plan. He attested that the Council had determined the building hazard line in accordance with Development Control Plan No 125 (DCP 125) and that part of the proposed deck is seaward of the building hazard line and would not be permitted by the Council under the DCP 125. He also attested it was the Council’s wish, having regard to the hazards determined by the Management Plan, to restrict any building forward of the building hazard line and to require any building between the building hazard line and the 2098 erosion hazard line to be stabilised for the prevention of loss of property and damage to adjoining properties from debris and building materials impacting upon those properties in the event of erosion and severe storm events. In his opinion the deck being seaward of the 2098 erosion line and building hazard line posed a hazard to adjoining properties in the event the deck was destroyed by coastal processes. It was possible that materials from the destruction would be washed against adjoining properties or against the remainder of the structures on the subject land.

14 Mr Tuxworth also raised concerns that the deck, if it was to remain, would be a precedent that other property owners along the beach front could point to in relation to applications for similar structures they may wish to erect.

15 Council’s solicitor submitted that arguments in favour of the Court exercising its discretion to order removal of the deck were that firstly, as a result of the Council’s coastal studies, the Council had come to the view that the structures in the location of this deck on the frontal dune were at risk from coastal processes. Due to concerns about erosion limitations on building work in coastal dune areas such as Pearl Beach, these lines had been established. The Council is concerned about the destruction of property in the future and has taken steps through its planning processes to ensure that the likelihood of that was reduced.

16 Secondly, there was a danger in the event of a storm of the deck itself being damaged and also of damage to neighbouring property from any debris from the deck. It was also argued there was a possible loss of investment for future purchasers if damage occurred in the future.

17 Thirdly, the Council is concerned about the precedent value where it was likely that other property holders in the vicinity will seek to have similar structures located on the dune, thereby undermining Council’s protective regime currently in force.

18 Fourthly, it was suggested that it was important to ensure that certifiers are meticulous. Given all these factors the public interest over-rides the misfortune and injustice to the Applicant who has properly relied on the private certifier in this case. I specifically note that the Council submitted there is certainly no suggestion that the owner is at any fault in relation to the issue of the Certificate by the certifier.

19 The Council did note it was unlikely there was any danger to human life such as would occur at more "high energy" beaches elsewhere in the Council’s municipality.

Respondent in reply

20 In reply to these arguments the Respondent’s solicitor argued that based on the Lawson and Treloar report the deck posed no immediate prospect of property damage to neighbouring properties. Furthermore it was indeed unlikely to be damaged itself, and in any event that was a matter for the owner to bear. It was suggested that the Lawson and Treloar report confirmed that storm damage was likely to have only a secondary effect at Pearl Beach, unlike other beaches in the locality which are more exposed to the Pacific Ocean. Given the findings in the Lawson and Treloar report there was potential for storm damage and loss of sand from the beach, but it was likely that any sand dissipated would return. There was no evidence that property loss was likely, or that the prospect of property damage was more than minimal in the short term.

21 I should note the Respondent also raised questions of the weight that should be given to Mr Tuxworth’s evidence because his qualifications were not made clear in his affidavit.

22 It was also submitted that the Court was setting a positive precedent if it did exercise its discretion to allow the deck to remain, namely that owners that do in good faith rely on a certificate issued by a certifier should not in these circumstances have the structure removed. Essentially it would be inappropriate to punish an innocent party and there should be no attempt through these proceedings to punish the certifier. Furthermore, it was unlikely that such a situation as occurred here would happen again.

Finding on discretion

23 I consider it is appropriate to exercise my discretion to grant a form of order which would require the demolition of part of the existing deck on the Respondent’s land. I do not accept the argument of the Respondent’s solicitor that the matter is a minor technical breach, that it would set a positive precedent to allow the structure to remain, or that due to the lack of evidence of imminent or likely storm damage in the short term, that demolition is inappropriate. I accept generally the submissions of the Council’s solicitor, which I have set out earlier, in relation to why my discretion should be exercised in favour of partial demolition. I should note, however, that it is not my intention in making this decision to punish in any way the certifier or the innocent party. It seems to me on the balance of the factors that I must take into account that it is appropriate that I make an order for partial demolition.

24 I accept Mr Tuxworth’s expertise and evidence about the Council’s concerns for this particular development in this location and note the extensive work which the Council has undertaken to ensure that there are processes in place to deal with coastal erosion issues in the long term.

25 Finally, in relation to whether there should be total or partial demolition, I note the advice of the Council’s solicitor that there had been an existing concrete deck over which the subject deck has been constructed. This is referred to in par 13 of Mr Tuxworth’s affidavit sworn 6 February 2003. If the subject deck was reduced in size so that it corresponded with the existing concrete deck it will constitute exempt development within Sch 10 of the Ordinance. I therefore consider that it is appropriate to make an order which requires demolition of the existing structure only to the extent that it protrudes past the existing concrete deck. As I did not discuss with the parties the appropriate wording of such an order I will ask the parties to file an appropriately worded order within 7 days of today's date.

Declarations and Orders

1. The Court makes the declarations sought in paragraphs 1, 2 and 3 of the Applicant's Class 4 Application.

The Court orders that:

2. Parties to file short minutes of order within 7 days in relation to the order regarding partial demolition. Any consent orders to be filed by 18 February 2003.

3. The matter is stood over for mention before Pain J on 19 February 2003 at 9.30 am.