Hayward v Hornsby Shire Council (No 2)

Case •

[2025] NSWLEC 37

•

16 April 2025

No judgment structure available for this case.

Land and Environment Court


New South Wales

Medium Neutral Citation: Hayward v Hornsby Shire Council (No 2) [2025] NSWLEC 37
Hearing dates: 17-18 March 2025
Date of orders: 16 April 2025
Decision date: 16 April 2025
Jurisdiction:Class 4
Before: Pain J
Decision:

See below in [114]-[115]

Catchwords:

JUDICIAL REVIEW – challenge to stop work order –extension of time to file judicial review proceedings under Uniform Civil Procedure Rules 2005 (NSW) r 59.10 granted – remaining judicial review ground in amended summons not established on balance of probabilities.

Legislation Cited:

Environmental Planning and Assessment Act1979 (NSW), ss 4.2, 4.3, 8.18, Pt 6 Divs 6.2, 6.3, Sch 5 Pts 1, 4, 5, 6, 7, 10, 11 cll 4, 6, 8, 9, 13, 14, 15, 22, 23, 27

Environmental Planning and Assessment Regulation 2000 (NSW) (repealed)

Environmental Planning and Assessment (Development Certification and Fire Safety) Regulation 2021 (NSW)

Freedom of Information Act 1982 (Cth)

Government Information Public Access Act 2009 (NSW), s 14

Local Government Act 1993 (NSW)

State Records Act 1998 (NSW)

Protection of the Environment Operations Act 1997 (NSW), s 96

Uniform Civil Procedure Rules 2005 (NSW), r 59.10

Cases Cited:

Bachelard v Australian Federal Police [2025] FCAFC 5

Ballina Shire Council v Joblin [2022] NSWLEC 90

Hayward v Hornsby Shire Council [2024] NSWLEC 106

Tomko v Palasty (No 2) (2007) 71 NSWLR 61; [2007] NSWCA 369

Texts Cited:

None

Category:Principal judgment
Parties: Brian Hayward (Applicant)
Hornsby Shire Council (Respondent)
Representation:

Counsel:
R DeMarco (Agent)
M Cottom (Respondent)

Solicitors:
Local Government Legal (Respondent)
File Number(s): 2024/219601
Publication restriction: N/A

JUDGMENT

  1. The Applicant Mr Hayward has commenced judicial review proceedings seeking a declaration of invalidity of a stop work order (SWO) issued by Hornsby Shire Council (the Council) on 4 December 2020. Mr Hayward is one of the registered proprietors of 17 Bay Road Arcadia (the Property). Mr Hayward was represented with leave by his agent Ms DeMarco his wife and co-owner of the Property.

  2. The summons filed on 14 June 2024 was not commenced within the three months specified in r 59.10(1) of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR). Under r 59.10(3) the Court has discretion to extend that time and Mr Hayward’s Notice of Motion dated 9 July 2024 seeking an extension is also before the Court. Mr Hayward has the onus of proof of establishing the basis for the grant of an extension of time and the remaining ground in the amended summons.

  3. Following a decision of Duggan J in Hayward v Hornsby Shire Council [2024] NSWLEC 106 (Hayward (Duggan J)) the amended summons filed on 8 November 2024 specifies in the sole remaining ground 15:

The Applicant asserts that the giving of the Stop Work Order (the order) was unlawfully done so by the respondent as an existing Approval, namely Development Consent 1411/2000 (as modified) was in operation and he was authorised in accordance with the Environment Planning and Assessment Act 1979 to carry out the work subject of the order. The applicant contends that the work being carried out on the property was work in accordance with the Development Consent.

The alleged contravention in the order cannot be made out nor does the respondent in providing reasons for the order establish what work if any that was being caried out that was outside of the scope of the existing consent.

The Applicant also contends that part 2 of the order falls outside the scope of a stop work order as allowed for in Schedule 5 of the Environmental Planning and Assessment Act 1979 as the matters set out in part 2 of the order are matters of compliance and do not fall within the circumstances of when a stop work order may be issued under the Act. The applicant contends that this further compounds the unlawful nature of the issuing of the order by the Respondent.

  1. The Council in opposing the summons in its defence stated:

The respondent opposes the whole of the relief sought in the Amended Summons, including the extension of time to commence these proceedings sought in the applicant’s notice of motion filed 9 July 2024, on the following grounds:

In response to paragraph 15 of the Amended Summons, the respondent:

admits that the Development Consent referred to in [15] was in force when the order referred to (hereinafter referred to as the “SWO”) was given;

otherwise denies the paragraph; and

further says that:

the SWO is a Stop Work Order as referred to in item 2, Part 1 of Schedule 5 to the Environmental Planning and Assessment Act 1979 (EP&A Act);

the SWO should be read as a whole for its full tenor and effect;

the onus is on the applicant to establish, and the evidence will not establish, that the circumstances in item 2, Part 1 of Schedule 5 to the EP&A Act did not exist when the SWO was given; and

in any case, in the premises set out in the SWO, the work referred to in [15] is building work that was carried out in contravention of the EP&A Act.

The respondent further says that:

in any event the Court would, in the exercise of its discretion, decline to grant relief, including but not limited to by reason of the applicant’s delay in bringing these proceedings; and

the application to extend time should be dismissed for the reason that the applicant has not identified or established any sufficient factor relevant to the particular circumstances of the case to justify the claimed extension, including the matters identified in r 59.10(3) of the UCPR.

The respondent says that the Amended Summons should be dismissed with costs.

Environmental Planning and Assessment Act 1979 (NSW), Schedule 5 – Development Control Orders

  1. The SWO was issued by the Council under Number 2 in the table in Sch 5.

Schedule 5 Development Control Orders

Part 1 General orders

…

To do what?

When?

To whom?

…

2

Stop Work Order

To stop building work or subdivision work carried out in contravention of this Act

Building work or subdivision work is carried out—

• in contravention of this Act, or

• in a manner that would affect the support of adjoining premises.

• Owner of the land

• Any person apparently engaged in the work

…

11

Compliance Order

To comply with a planning approval for the carrying out of works

To do whatever is necessary so that any building or part of a building that has been unlawfully erected complies with relevant development standards

…

A planning approval has not been complied with.

Building has been unlawfully erected and does not comply with relevant development standards.

…

• The owner of the premises

• Any person entitled to act on a planning approval, or acting in contravention of a planning approval

The owner of the premises

…

…

Part 4 Provisions relating to development control orders

…

4 Giving and taking effect of orders

(1) A development control order is given by serving a copy of the order on the person to whom it is addressed and takes effect from the time of service or a later time specified in the order.

(2) The copy of the development control order is to be accompanied by a notice stating—

(a) that the person to whom the order is addressed may appeal to the Land and Environment Court against the order, and

(b) the period within which an appeal may be made.

…

Part 5 Process for giving orders

6 Natural justice requirements

(1) Before giving a development control order, a relevant enforcement authority must comply with clauses 2, 8 and 9 and Part 7 of this Schedule.

(2) Subclause (1) does not apply to the following development control orders—

(a) a general order (under item 2, Part 1 of this Schedule),

…

7 Effect of compliance

A relevant enforcement authority that complies with clauses 2, 8 and 9 and Part 7 of this Schedule is taken to have observed the rules of procedural fairness.

Part 6 Notices to be given

8 Notice to be given of proposed order to person who will be subject to order

(1) Before giving a development control order, a relevant enforcement authority must give notice to the person to whom the proposed order is directed of the following—

(a) the intention to give the order,

(b) the terms of the proposed order,

(c) the period proposed to be specified as the period within which the order is to be complied with,

(d) that the person to whom the order is proposed to be given may make representations to the relevant enforcement authority as to why the order should not be given or as to the terms of or period for compliance with the order.

(2) The notice may provide that the representations are to be made to the relevant enforcement authority or a nominated person on a nominated date, being a date that is reasonable in the circumstances of the case. In the case of a council this may be to a specified committee of the council on a specified meeting date or to a specified employee of the council on or before a specified date.

…

Part 7 Representations concerning proposed orders

13 Making of representations

(1) A person who is given notice under clause 8 of the intention to give a development control order may make representations concerning the proposed order in accordance with the notice.

(2) For the purpose of making the representations, the person may be represented by an Australian legal practitioner or agent.

14 Hearing and consideration of representations

The relevant enforcement authority that intends to give the development control order or the nominated person is required to hear and to consider any representations made under this Part.

15 Procedure after hearing and consideration of representations

(1) After hearing and considering any representations made concerning the proposed development control order, the relevant enforcement authority or the nominated person may determine—

(a) to give an order in accordance with the proposed order, or

(b) to give an order in accordance with modifications made to the proposed order, or

(c) not to give an order.

(2) If the determination is to give a development control order in accordance with modifications made to the proposed order, the relevant enforcement authority is not required to give notice under this Part of the proposed order as so modified.

…

Part 10 Modification and revocation of orders

22   Modification of orders

(1)  A relevant enforcement authority that gives a development control order may, at any time, modify the order (including a modification of the period specified for compliance with the order).

(2)  Except in the case of a development control order given by the Minister or the Planning Secretary, a modification may be made only if the person to whom the order is given agrees to that modification.

23   Revocation of orders

….

(3)  A development control order given by a council may be revoked by the council at any time.

…

Part 11 Effect of orders and compliance with orders

…

27 Period for compliance with order

(1) A development control order must specify a reasonable period within which the terms of the order are to be complied with.

(2) However, a development control order may require immediate compliance with its terms in circumstances which the person who gives the order believes constitute a serious risk to health or safety or an emergency.

Stop Work Order

  1. The SWO issued by the Council was in the following terms:

Stop Work Order

pursuant to Item No.2 of Part 1, Schedule 5 of the Environmental Planning and Assessment Act, 1979

Premises:   Lot 101 DP 1004520 No. 17 Bay Road, ARCADIA NSW 2159

TO WHOM Mr Brian D Hayward

PREMISES Lot 101 DP 1004520 No. 17 Bay Road, ARCADIA NSW 2159 (the “Premises”)

This is a Development Control (Stop Work Order) pursuant to section 9.34 and Item No. 2 of Part 1, Schedule 5 of the Environmental Planning and Assessment Act 1979 (“the Act”).

TERMS OF THE ORDER

Hornsby Shire Council (“the Council”) orders Brian Hayward as owner of the Premises to:

Cease carrying out the following building works to the existing dwelling at the Premises until such time that the relevant planning approvals have been obtained:

Any physical activity including the construction of alterations, additions and extensions to the existing dwelling at the Premises and which are not approved by Development Consent No. 1411/2000.

Cease carrying out the following building works to the existing dwelling at the Premises until such time as Brian Hayward is in receipt of advice from Council confirming that Conditions 5, 7, 8, 17, 18, 19, 20, 21, 25-45, 50-57, 59 of Development Consent No. 1411/2000 & 1411/2000/A have been complied with.

Any physical activity including the construction of the dwelling at the Premises approved by Development Consent No. 1411/2000 and 1411/2000/A

Note: A person who carries out work in compliance with a requirement of a Development Control Order does not have to make an application for consent or approval to carry out the work, pursuant to clause 29 of Schedule 5 of the Act.

REASONS FOR THE ORDER

Ms Rochelle De Marco and Mr Brian Hayward are owners of No. 17 Bay Road, Arcadia (“the Premises”)

Hornsby Shire Council (the “Council”) is responsible for the administration of the Environmental Planning and Assessment Act 1979 (“the Act”) within the Council’s area in which the Premises is located

On 12 July 2000 Development Application No. 1411/2000 was lodged with Council for the erection for a single storey dwelling and access driveway at No. 17 Bay Road Arcadia, the application was recommended for approval and was determined on 9 October 2001.

On 12 July 2000, Construction Certificate No. 1088/2000 was received by Council relating to Development Application No. 1411/2000 for a ‘Residence and associated driveway’ The Certificate was determined approved on 16 November 2001.

On 18 October 2001, A Section 4.55 application (formerly Section 96) was lodged for Development Application No. 1411/2000 to remove the bitumen seal on the driveway and replace it with crushed rock. The application was approved on the 8th April 2002 as amendment “A” to Development Application No. 1411/2000 and included 60 conditions of approval (D00285656)

On 6th December 2013, Council’s Certifier wrote to Ms R Demarco and Mr B Hayward requesting compliance with Condition No. 3 of Development Application 1411/2000/A – pertaining to the requirement to appoint a private certifier. (D02715632)

On 30 September 2014, Council’s Certifier wrote to Ms R DeMarco and Mr B Hayward referencing an inspection undertaken on the 26th of September, requiring 16 matters to be addressed, including; Long Service Levy Payment, Home Warranty Insurance or Owner Builder Permit, Structural Engineers Certification, Building Framing Certification, Waterproofing Certification, Smoke Alarm installation, On Site Wastewater Approval Certification, Supply Water for Fire Fighting Requirements, inter alias. (D03767989)

On 18 May 2018, Development Application No. 462/2018 was received by Council for the alterations and additions to the existing residence, the proposal listed in the Statement of Environmental Effects (D07449731) includes;

Construction of a ground floor addition to the west of the existing dwelling,

Incorporating an additional new main bedroom with an ensuite,

Additional two smaller bedrooms,

An additional small functional bathroom,

An additional, partially covered deck around three sides in a similar fashion to the existing,

A total size of the proposed addition will be 88.4m2 plus an additional 20m2 in new decking. The area does not include driveways and paths.

On 23 July 2018, Council’s Town Planner wrote to Ms R DeMarco requesting additional information, including New South Wales Rural Fire Service requirements relating to the access, space & utilities for firefighters in the event of a fire at the Premises. The letter further requested additional information pertaining to the setbacks, builders quote and details of the Onsite Sewerage Management for the Premises. (D07484591)

On 23 August 2019 Ms R DeMarco wrote to Council’s Town planer requesting that Development Application No. 462/2018 be officially withdrawn. (D07510593)

A search of Council’s Records on 26 August 2020 indicates that an Occupation Certificate, Interim or other, has not been issued in relation to Development Application No. 1411/2000, 1411/2000/A, and Construction Certificate’s No. 1088/2000 & 1082/2001.

Following a complaint received by the Council, on 7 August 2020, authorised officers of the Council inspected the Premises and observed the construction of alterations and additions being undertaken to the existing dwelling at the Premises, including gyprocking, cladding, doors and window installations and interior fit out of the dwelling.

A search of the Council’s records indicates that development consent has not been granted for the work and no application for development consent has been lodged with the consent authority (Hornsby Shire Council).

Under Division 9.3 and Schedule 5 of the EPA Act, the Council has power to give a “stop work” order when building work is carried out in contravention of the EPA Act.

The term “building work” is defined in section 6.1 of the EPA Act to mean any physical activity involved in the erection of a building and this definition is relevant to the term as it is used in Schedule 5.

The term “building” is defined in section 1.4 to include any structure or part of a structure. A dwelling is a structure, the erection of which and associated additions, alterations and extensions to the dwelling is building work for the purposes of the EPA Act.

The Work is therefore building work which is being carried out in contravention of the EPA Act.

PERIOD FOR COMPLIANCE WITH THE ORDER

This Order is to be complied with immediately.

FAILURE TO COMPLY WITH ORDER – PENALTY

It is an offence under Section 9.37 of the Act to fail to comply with this Order. A person guilty of an offence could be penalised in the courts or issued with a penalty infringement notice. In addition, if the Order is not complied with, Council could seek an Order from the Land and Environment Court compelling you to comply with the Order.

…

COUNCIL MAY CARRY OUT WORK

The Court could also Order that Council undertake the works itself and Council could recover any expenses from you pursuant to Section 33 of Schedule 5 of the Act.

RIGHT OF APPEAL

Council advises that you may appeal to the Land and Environment Court against the Order or a specified part of the Order. Your appeal must be made within twenty-eight (28) days after the service of this Order on you.

Should you require further information, please contact the undersigned by email on [email protected].

Council’s Chronology

  1. The Council provided a chronology setting out the relevant history of these proceedings which was not disputed as follows:

Date

Event

12 July 2000

Development Application 1411/2000 lodged with Council for the erection of a single storey dwelling and access driveway (2000 DA)

12 July 2000

Construction Certificate Application No 1088/2000 received by Council for 2000 DA

9 October 2001

2000 DA determined by way of approval

18 October 2001

Section 96 Modification Application lodged to 2000 DA

16 November 2001

Construction Certificate No 1088/2000 approved

8 April 2002

Section 96 Modification Application approved

6 December 2013

Council wrote requesting compliance with Condition 3 of 2000 DA

30 September 2014

Council wrote regarding an inspection that took place on 26 September 2014

24 September 2015

Development Application 1222/2015 lodged with Council for ‘Alterations and additions to dwelling house’

11 November 2015

Development Application 1222/2015 refused by Council

18 May 2018

Development Application 462/2018 lodged with Council for ‘Alterations and additions to the existing residence’

23 July 2018

Council wrote requesting further information regarding DA 462/2018

23 August 2018

Council received email from Ms DeMarco withdrawing DA 462/2018

7 August 2020

Council inspected Property

11 November 2020

Notice of Intention to issue a Stop Work Order served

2 December 2020

Email received from Ms DeMarco and Mr Hayward headed ‘Response to correspondence 11 November 2020’

4 December 2020

Stop Work Order issued

2 May 2024

Mr Hayward wrote to Council ‘Letter before action’ regarding commencing judicial review proceedings

9 May 2024

Council wrote to Mr Hayward in response to ‘Letter before action’

Mr Harding’s affidavit

  1. Mr Harding, Council officer, swore an affidavit dated 4 March 2025. Mr Harding was the Council officer who issued the SWO and in it he set out the relevant history of the Property.

  2. Mr Harding has access to the Council’s Record Management System kept under the State Records Act 1998 (NSW) (records). He inspected the Council’s records in relation to the Property and located the following records and documents, most of which were annexed to his affidavit:

  1. Development Application 1411/2000 (the 2000 DA) and a copy of the stamped approved plans;

  2. a construction certificate relating to the 2000 DA for a ‘residence and associated driveway’ which was approved on 16 November 2001;

  3. an application to modify the 2000 DA lodged on 18 October 2001 and a Notice of Determination by way of approval dated 8 April 2002;

  4. a letter from the Council dated 6 December 2013 which requested Mr Hayward and Ms DeMarco comply with a condition of the 2000 DA prior to further consideration being given to a construction certificate application made by Mr Hayward and Ms DeMarco;

  5. a letter from the Council dated 30 September 2014 relating to an inspection at the Property which occurred on 26 September 2014;

  6. a development application lodged 24 September 2015 by Mr Hayward and Ms DeMarco which the Council refused on 11 November 2015 and associated documents;

  7. a development application lodged 18 May 2018 by Mr Hayward and Ms DeMarco and associated documents;

  8. a request for additional information on the development application lodged 18 May 2018 from a Council town planner to Ms DeMarco dated 23 July 2018;

  9. an email dated 23 August 2018 from Ms DeMarco requesting the development application lodged 18 May 2018 be officially withdrawn.

  1. Mr Harding was unable to locate an occupation certificate in relation to the Property. He has also been unable to locate any information on critical stage inspections by an accredited certifier pursuant to the Environmental Planning and Assessment (Development Certification and Fire Safety) Regulation 2021 (NSW) or the now-repealed Environmental Planning and Assessment Regulation 2000 (NSW). Mr Harding stated such inspections were required prior to inter alia placing footings, pouring cement, covering waterproofing and covering stormwater connections.

  2. Mr Harding inspected the Property on 7 August 2020 following a complaint received by the Council on 6 August 2020. Mr Harding’s file notes and photographs taken at the inspection were annexed to his affidavit. On or about 11 November 2020 Mr Harding posted a Notice of Intention to issue a Stop Work Order under item 2 of Part 1 Sch 5 of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) dated 11 November 2020 (Notice of Intention). Mr Harding received a response to this notice by email on 2 December 2020 from Mr Hayward and Ms DeMarco which said no building works had been carried out since 11 November 2020 and no building works would resume until the matter was resolved.

  3. As the email received 2 December 2020 did not raise grounds that would prevent the issuance or modification of the SWO, the SWO was issued.

  4. Mr Harding considered all the material identified in his affidavit when issuing the SWO. He believed at the time of the SWO that the work referred to in the SWO contravened the EPA Act. Specifically, the conditions of consent for the 2020 DA listed in paragraph 1 of the terms of the SWO had not been complied with. As referred to in paragraph 2 of the terms of the SWO there was no form of planning approval for the alterations and additions to the approved works that Mr Harding observed during his inspection on 7 August 2020.

  5. Mr Harding said the Council continues to hold no record of any satisfaction of the conditions listed in paragraph 1 of the terms in the SWO, planning approvals for the alterations and additions carried out to the existing dwelling, or applications seeking to regularise the offending works by way of a building information certificate and development consent for further works.

Mr Hayward’s affidavit

  1. Mr Hayward swore an affidavit dated 6 July 2024 which supported his Notice of Motion dated 9 July 2024 seeking an order for an extension of time to file a summons commencing judicial review proceedings pursuant to UCPR r 59.10. This Notice of Motion was stood over to the substantive hearing for determination.

  2. Mr Hayward’s affidavit contained a mix of factual matters and submissions. Mr Hayward said he and Ms DeMarco received the SWO on 4 December 2020. He and Ms DeMarco have sought to understand and resolve issues regarding the SWO since they received the Notice of Intention on 11 November 2020. The SWO was unclear to Mr Hayward and Ms DeMarco and the Council did not respond to repeated requests for information and explanation regarding the SWO. The Council did not respond to requests for meetings and ignored many emails sent by Mr Hayward or Ms DeMarco. Mr Hayward and Ms DeMarco were not given an opportunity to respond to the 6 August 2020 complaint. Mr Hayward and Ms DeMarco have been made homeless by the SWO. An extension of time would not cause prejudice to the Council but would significantly prejudice Mr Hayward and Ms DeMarco.

  3. Mr Hayward and Ms DeMarco wrote to the Council on 2 May 2024 prior to commencing these judicial review proceedings. This letter also stated that Mr Hayward and Ms DeMarco had been waiting for the Council to provide further correspondence following the Council’s 10 February 2023 email. Mr Hayward and Ms DeMarco have experienced significant delays in accessing information relevant to the SWO.

  4. Mr Hayward and Ms DeMarco promptly filed a Government Information Public Access Act 2009 (NSW) (GIPA Act) request on 12 November 2020 after receiving the Notice of Intention. There were practical difficulties with their GIPA Act request as they did not know what to search for. The response to the GIPA Act request was delayed and the Council said that this was due to the application involving a lot of documents, the Council having limited staff available at that time of year, the Council being affected by asbestos in its building, and the effects of COVID. Mr Hayward and Ms DeMarco did not understand the documents provided in response to the GIPA Act request and sought clarification in further emails to the Council.

  5. No supporting information accompanied the SWO and the Council refused access to relevant information by which Mr Hayward and Ms DeMarco could understand the SWO. The documents provided by the Council in response to the GIPA Act request did not support the SWO. Mr Hayward alleged the Council confused the floor plan of the approved 2000 DA with the floor plan of the withdrawn development application from 2018. The Council had an agenda to prosecute Mr Hayward given that investigation of works on the Property commenced as far back as 2018. Mr Hayward’s health has been significantly impacted by the Council’s actions.

  6. Additional submissions made in the affidavit concern the validity of the SWO which is the subject of the amended summons and will be considered in that context.

  7. Based on the material annexed to that affidavit the following matters were relied on as relevant to the extension of time application commencing from 30 July 2019 (earlier events referred to have not been included as they cannot be relevant). I note that large parts of the material annexed to the affidavit appeared to be cut and pasted text from emails or other forms of correspondence to and from other parties some without dates or addresses.

  8. The 2000 DA was lodged with the Council and approved and a construction certificate was provided by the Council in 2001.

  9. On 30 July 2019 the Council’s solicitors provided advice to the Council regarding investigation of and potential prosecution for development without consent under s 4.2 of the EPA Act at the Property.

  10. On 6 August 2020 the Council received a complaint from a member of the public with concerns that fill material was being imported to the Property. On 7 August 2020 a Council officer inspected the Property in relation to the 6 August 2020 complaint. The Council sent a Direction to take Preventative Action under s 96 of the Protection of the Environment Operations Act 1997 (NSW) dated 21 August 2020 to Mr Hayward (Exhibit 1).

  11. Mr Hayward and Ms DeMarco sent the Council an undated response to the 21 August 2020 Direction to take Preventative Action (Exhibit A). The correspondence disputed the Council’s characterisation of the waste and fill material and identified several concerns including that the Council had not complied with requirements within the Local Government Act 1993 (NSW) and was acting in a biased manner. The correspondence attached several photos of the Property.

  12. The Council sent a Notice to Furnish Information and Records regarding the waste and fill material at the Property to Mr Hayward dated 28 September 2020. Ms DeMarco submitted this notice was annexed to Mr Hayward’s affidavit. I note that the annexure had an incorrect covering page so that the complete document was not annexed.

  13. On 7 October 2020 Ms DeMarco requested an extension of time to respond to the 28 September 2020 Notice to Furnish Information and Records.

  14. On 12 October 2020 Ms DeMarco sent the Council a copy of a complaint she had made to the NSW Ombudsman (Ombudsman) regarding the Council’s conduct.

  15. The Council sent Mr Hayward the Notice of Intention dated 11 November 2020.

  16. On 12 November 2020 Ms DeMarco filed a request pursuant to the GIPA Act with the Council for ‘all information that relates to DAs’ and ‘all service requests on file for the address [Property], corresponding actions, supporting evidence and determinations’.

  17. On 20 November 2020 a Council officer sent Ms DeMarco some documents in response to the GIPA Act request. A later email (undated in the evidence) indicated that the documents were sent to the incorrect email address and the same documents were forwarded to the correct email address on 25 November 2020.

  18. On 2 December 2020 the Council received an email titled ‘Response to correspondence 11 November 2020’ in which Mr Hayward and Ms DeMarco stated no building works had been carried out since 11 November 2020 and that they had engaged an independent building expert to advise whether any development had been undertaken that was not in compliance with conditions of an approved development application.

  19. The SWO was issued to Mr Hayward on 4 December 2020.

  20. On 23 December 2020 the Council officer responsible for the GIPA Act request (GIPA officer) contacted Ms DeMarco to request she narrow the documents identified in the GIPA Act request as it included too many documents. The GIPA officer also attached further documents in response to the GIPA Act request. Ms DeMarco replied later that day and said that all the requested documents were required.

  21. In an undated email the GIPA officer stated that the GIPA Act request could not be complied with and provided options for a request with a ‘more manageable scope’. In another undated email the GIPA officer stated that given a response had not been received, they had proceeded to order archived files so that Ms DeMarco could view the documents herself. In another undated email the GIPA officer stated that given the volume of material, electronic documents would be provided for Ms DeMarco to inspect and Ms DeMarco could request copies of any documents that she required. On 13 April 2021 Ms DeMarco attended the Council’s premises to view documents produced in response to the GIPA Act request.

  22. An email sent by an officer of the Ombudsman to Ms DeMarco on 25 June 2021 said the Ombudsman had received a complaint made by Ms DeMarco on 24 June 2021.

  23. In an undated email an officer of the Ombudsman said they had spoken to Ms DeMarco about the above complaint on 1 September 2021 and written to the Council making preliminary enquiries that addressed the key issues of the complaint.

  24. In a letter dated 7 June 2022 the Council referred to the concerns raised with the Ombudsman and sought to facilitate a site inspection at the Property to ascertain the extent of any unauthorised works and compliance with the Council’s orders. The Council noted it had no records indicating the Council was the Principal Certifying Authority for works pursuant to the 2000 DA.

  25. An undated communication from an officer of the Ombudsman stated that they understood the Council had provided Mr Hayward with its position on the complaint, including that the Council was not the Principal Certifying Authority for the works pursuant to the 2000 DA. The officer said they trusted the proposed site inspection would be an opportunity to clarify other outstanding queries, that no further action could be taken by the Ombudsman on the matter and the complaint case was closed in the Ombudsman’s office.

  26. In an email on 26 October 2022 the Council stated that two documents had not been provided to Ms DeMarco pursuant to s 14 table 1 item (h) of the GIPA Act.

  27. On 6 February 2023 the Council was issued a search warrant for the Property by Hornsby Local Court. On 8 February 2023 Council officers executed a search of Mr Hayward’s home pursuant to the 6 February 2023 warrant.

  28. In an email dated 10 February 2023 to Ms DeMarco the Council stated that it had been unsuccessful in attempting to organise a time with Mr Hayward or Ms DeMarco for an inspection of the Property and had therefore been issued a search warrant for the Property. Council officers executed the search warrant on 8 February 2023 in the absence of Mr Hayward or Ms DeMarco as they were not present at the Property. The email stated that further correspondence would be sent in relation to the Council’s investigation.

  29. In a letter dated 2 May 2024 Ms DeMarco sent the Council a notice that she and Mr Hayward would be commencing judicial review proceedings in the NSW Land and Environment Court in relation to the SWO issued 4 December 2020. On 9 May 2024 a Council officer sent Ms DeMarco a response to the 2 May 2024 letter. These judicial review proceedings were commenced on 14 June 2024.

Mr Hayward’s cross-examination

  1. Mr Hayward was cross-examined. He was asked to look at several documents in his cross-examination. He did not bring his reading glasses. When handed the first document, his affidavit, he said he could read it.

  2. Mr Hayward’s evidence was that he, his daughter and Ms DeMarco typed different parts of his affidavit. Mr Hayward then said two people had typed the affidavit. He could not remember who or how many people had typed different parts of it. Mr Hayward carefully reviewed the affidavit before signing it.

  3. Mr Hayward believed he was an author of the email received by the Council on 2 December 2020. He was not sure that the response was sent to the Council in response to the proposed SWO as Ms DeMarco generally sent paperwork to the Council. He then said that Ms DeMarco may have prepared the correspondence and could not recall if he saw the document before it was sent.

  4. Mr Hayward agreed he had stopped building work at the Property but could not recall whether it was after the Council gave the Notice of Intention or the SWO.

  5. Mr Hayward has provided a fixed address for all affidavits and documents filed with the Court over the course of these judicial review proceedings. He has had to find alternative accommodation other than the house he ‘should be living in’.

  6. Mr Hayward said he complied with the SWO but did not understand it. He read the SWO in full but did not understand the whole letter and did not understand he had an appeal right in relation to it.

  7. Mr Hayward did not engage an independent building expert to advise him on the works being undertaken. He could not remember writing the 2 December 2020 email that said that he and Ms DeMarco would do so (described in [11] and [32] above). He has spoken to some friends who were builders and paid a builder to advise on the SWO.

  8. Mr Hayward did not recall making any requests to the Council pursuant to the GIPA Act himself or if Ms DeMarco had made any.

  9. Mr Hayward could not recall trying to obtain any legal advice on the validity of the SWO shortly after it was issued. He could not recall the first time that he sought legal advice.

  10. Mr Hayward did not believe any work had occurred on the dwelling since the SWO.

  11. Mr Hayward agreed that the reason he commenced these proceedings was that he wanted to continue with his building project.

  12. In re-examination Mr Hayward said that he could not read the whole of the documents presented to him in cross-examination but could pick out words and thought that would be enough. He would have been unwell at the time the SWO was issued but could not recall whether he told the Council that he was unwell.

Mr Harding’s cross-examination by Mr Hayward’s agent

  1. Mr Harding confirmed that he wrote the SWO and the Notice of Intention. He was the only author of the two documents. Mr Harding’s affidavit was prepared by the Council’s solicitor Ms Caban under Mr Harding’s direction. Mr Harding confirmed that he agreed with the contents of his affidavit.

  2. Mr Harding said he has written multiple stop work orders for the Council’s planning division during his career. In 2020 he had been team leader of environmental compliance at the Council for several years. He continued in this role for two to three more years after 2020. He referred to all of the Council’s records relating to the Property when writing the SWO and saw there was a construction certificate for the 2000 DA. Mr Harding recalled that Mr Hayward had filed a development application in 2015 which had been refused and a development application in 2018 that had been withdrawn. He could not find an occupation certificate in relation to the Property at the time of writing his affidavit.

  3. Mr Harding said that the SWO and Notice of Intention were issued pursuant to the EPA Act. Mr Harding determined as the writer of the SWO that the building work carried out by Mr Hayward was in contravention of the EPA Act. Mr Harding said that the items listed under ‘reasons’ in the SWO were reasons or a combination of reasons and history to some extent. He said the email received by the Council on 2 December 2020 raised no grounds for invoking the need to review, modify or revoke the SWO. Mr Harding was unable to say whether Mr Hayward has complied with the SWO but had no reason to say Mr Hayward has not complied. He has not issued any penalties for non‑compliance with any of the directions, notices or orders written in 2020 and was not aware of any being issued by the Council.

  4. Mr Harding could not recall seeing the email sent on 30 July 2019 by the Council’s solicitors described above in [17].

  5. Mr Harding confirmed that he reviewed the records the Council had regarding works at the Property at the time of writing his 4 March 2025 affidavit.

A. Should an extension of time to commence proceedings be granted?

  1. Mr Hayward seeks an extension of time to file the summons as amended. The SWO was issued on 4 December 2020 and Mr Hayward was aware of it. The summons was filed on 14 June 2024 substantially outside the statutory time limit of three months from the date of the SWO as specified in UCPR r 59.10(1). Under subrule (2) the Court may extend the time to commence proceedings at any time. The factors in r 59.10(3) identify non-exhaustively matters that should be taken into account in that consideration. As advised to Ms DeMarco during the hearing, the substantive matters relevant to the motion to extend time under UCPR r 59.10 were limited by what remained of Mr Hayward’s case in the amended summons.

  2. Mr Hayward submitted that he did not understand the SWO and had taken numerous steps to try to understand what the SWO sought including by numerous emails to the Council, filing a GIPA Act request and making a complaint to the Ombudsman.

  1. Mr Hayward was entitled to make representations under EPA Act Sch 5 Pt 7 cl 13(1). The Council was required to comply with the requirements in Sch 5 Pt 5 cl 6(1), Pts 6 and 7 cll 8, 9, 14 and 15.

  2. The Notice to Provide Information and Records dated 28 September 2020 (not in evidence in complete form) had to be responded to and Mr Hayward was seeking an extension of time to respond to that.

  3. Mr Hayward made many representations to the Council and to the Ombudsman but was limited by the documents provided to him by the Council and the delays in providing these documents. The GIPA Act request on 12 November 2020 was refused in part by the Council. The Council’s partial response to the GIPA Act request was delayed due to Christmas, COVID-19 impacts and the Council’s premises being affected by asbestos in the building. Ms DeMarco had to view most of the documents provided in response to the GIPA Act request in an electronic format as no other means of obtaining information was provided. Mr Hayward made every effort to understand the SWO and make representations to the Council particularly after the SWO was issued. Mr Hayward was not dealt with proactively such as by being consulted and given information from Council officers. No other means was provided of making representations. No accompanying information to the SWO was provided by the Council.

  4. The Notice of Intention did not contain reasons, just a “history”. Mr Harding confused reasons and history.

  5. Mr Hayward is entitled to these proceedings and to the application of UCPR r 59.10 to its fullest extent. Mr Hayward was entitled to be given reasons, to adequate information and needed adequate support. Mr Hayward was prejudiced by the Council’s repeated failure to provide adequate responses.

  6. Mr Hayward only became aware of the opportunity for judicial review proceedings when he attended an appointment with a duty solicitor at the Court. There was delay because the GIPA Act request was not answered before the 28-day appeal period identified in the SWO expired. Mr Hayward should have had the opportunity to meet with Council officers to resolve processes. The Council was asked on many occasions to provide information. Mr Hayward was not provided with everything at the outset and his response was delayed as a result.

  7. There was no clarity relating to the period of compliance in the SWO as was required by Sch 5 Pt 11 cl 27. This ambiguity was one reason for these judicial review proceedings. The SWO should have contained all that it needs to, and as Mr Hayward did not understand it he should have had an opportunity for a meeting to address the SWO given the power imbalance experienced by Mr Hayward.

  8. Mr Hayward has an entitlement to receive a SWO which complied with the legislation. Mr Hayward does not understand how to comply with the SWO. The SWO must be clear and unambiguous, see Ballina Shire Council v Joblin [2022] NSWLEC 90 (Joblin). Mr Hayward was entitled to review of the SWO by the Council and modification or revocation of the SWO was possible under EPA Act Sch 5 Pt 10 cll 22-23. The Council had the opportunity to revoke or modify the SWO but it did not do so.

  9. Mr Hayward took extensive steps to try to understand the SWO and have it reviewed. Approaching the Ombudsman was quasi-judicial review in nature. He is not guilty of unwarranted delay and there is no bad faith on his part. He tried to organise a meeting with the Council and asked for reasons for the SWO. Mr Hayward never received reasons for the SWO being issued.

  10. These proceedings are very important to Mr Hayward, as they relate to an order affecting his home.

  11. Because of the Council’s behaviour Mr Hayward was a bit forceful. He welcomed the opportunity for the Council to attend the Property (noting this was done with a search warrant) and was waiting to hear back following the Council’s representation that it would be in contact in the email dated 10 February 2023 (described in [42] above).

  12. Mr Hayward was granted leave to rely on additional submissions sent by email after the hearing in which he made the following arguments. It is in the interest of Mr Hayward to have the SWO revoked as it prevents him from completing his renovations and being able to reside in his own home. He has been made homeless because of the invalid stop work order. I note that Mr Hayward’s cross-examination clarified that he has been living in alternative accommodation, see above in [48].

  13. The SWO lacked certainty, relying on Joblin at [4], [66]-[67], [73], [77]-[78] (Robson J). Mr Harding did not make clear in the SWO if the ‘ceasing of any physical activity’ (emphasis added) referred to the existing dwelling or the alterations, additions and extensions to the existing dwelling. Mr Harding also did not clarify what Mr Hayward was required to do to comply with the SWO, that is whether stopping all activity was in compliance or whether completing the approved works was in compliance. Mr Harding provided no clarity on what work had approval and what did not. The SWO did not clarify what ‘offending’ works were.

  14. Mr Hayward made numerous attempts to work with the Council to understand the SWO and work through requirements for compliance.

  15. Relying on Joblin at [69] and [73] (Robson J), the SWO is unclear in terms of futurity as it is unclear if Mr Hayward is in compliance with it when he advises the Council that he has completed the terms of order 2 in the SWO, or how he may complete the terms of order 2 if he is to cease ‘all physical activity’.

  16. UCPR r 59.10(3)(d) provides the Court should take into account any relevant public interest in considering applications to extend time for commencing proceedings. The Council denied Mr Hayward documents that it had on file, including the reasons for the SWO. Legal advice received by the Council regarding unauthorised action at the Property and the Council’s investigation report for the Property were not provided in response to Mr Hayward’s GIPA Act request on public interest grounds (see [40] above). Mr Hayward submitted an unsuccessful application with the Information Privacy Commissioner to receive those documents. The documents were only provided to Mr Hayward on 4 March 2024 through these proceedings. Relying on Bachelard v Australian Federal Police [2025] FCAFC 5 at [232]-[233] (McDonald J), Mr Hayward submitted the Council has not applied the Freedom of Information Act 1982 (Cth) (Freedom of Information Act) in a way that promotes the objects of that Act. Had the Council been forthcoming with information Mr Hayward would not have had to continually seek information from the Council.

Council’s submissions

  1. The Council accepted in relation to the factors in UCPR r 59.10(3) that Mr Hayward has a relevant interest, and that the Council would not suffer any particular prejudice if the extension of time was granted. Mr Hayward did not exercise his appeal right within the 28 days allowed by s 8.18(3) of the EPA Act. The Council submitted that as Mr Hayward had no prospects of success in relation to ground 15 of the amended summons the public interest was not served by granting an extension of time. Mr Hayward’s evidence demonstrates that he was aware of the SWO when it was issued on 4 December 2020. There was inexplicable and significant delay before foreshadowing these proceedings to the Council for the first time on 2 May 2024 and commencing them on 14 June 2024.

  2. Many of the submissions made by Mr Hayward revived grounds in the original summons which were struck out in Hayward (Duggan J). This included the submission that Mr Hayward did not understand the SWO. In any case the SWO was clear and directed Mr Hayward to stop two species of work: firstly, alterations, extensions and additions without any planning approval and secondly, work on the originally constructed dwelling which had planning approval but for which many conditions of consent remained to be fulfilled.

  3. Mr Hayward was given opportunities to discuss the SWO with the Council following its issue. Letters sent to Mr Hayward by the Council in 2022 and 2023 stated that the Council had attempted to organise a time to inspect the Property but had been unsuccessful (see [38] and [42] above). There is no evidence from the period between the SWO being issued and commencement of these proceedings of Mr Hayward or Ms DeMarco raising concerns with the Council about the SWO. In fact, it was complied with during that time.

  4. In response to Mr Hayward’s further emailed submissions, these do not go to any of the matters pleaded in ground 15 of the amended summons. These submissions move beyond submitting that Mr Hayward did not understand the SWO to a new ground that asserts actual legal uncertainty in relation to the SWO. They should be dismissed due to a lack of pleading, but in any case impermissibly seek to go behind the finding in Hayward (Duggan J) at [25] and do not address the Court’s task of objectively constructing the SWO itself, Joblin at [69] (Robson J). The submissions also seek to bootstrap a ‘public interest’ argument to grounds in the original summons already struck out, and in any case failure to refer to any ‘relevant public interest’ is not asserted by the Council as a matter that weighs either in favour of or against the extension of time application despite it being a factor identified in UCPR r 59.10(3)(d).

Finding on r 59.10

  1. Relevant factors identified (non-exhaustively) in r 59.10(3) to consider in deciding whether to exercise my discretion to extend time under subr (2) include the particular interest of the plaintiff (here applicant). I accept as does the Council that Mr Hayward has a relevant interest in challenging the SWO issued by the Council (subr (3)(a)). In relation to possible prejudice to other persons caused by the passage of time (subr (3)(b)), the Council accepts that it does not suffer any particular prejudice if an extension of time is granted. As to the time he become aware of the SWO (subr (3)(c)) Mr Hayward did not dispute that he became aware of the SWO shortly after it was issued. A further consideration in subr (3)(d) is any relevant public interest. The public interest is a very broad concept and its further consideration depends on the analysis of the evidence which Mr Hayward sought to rely on to demonstrate that he has taken numerous actions to clarify and understand the SWO and otherwise explain the delay in commencing these judicial review proceedings.

  2. Additional factors relevant to consider in such applications identified in Tomko v Palasty (No 2) (2007) 71 NSWLR 61; [2007] NSWCA 369 at [55] (Basten JA) include the length of the delay, the reason for the delay, and whether the applicant has a fairly arguable case.

  3. Mr Hayward has relied on a large number of actions taken by him, Ms DeMarco and the Council over a lengthy period of time, from 2019-2024 according to the submissions made in his affidavit and the information attached to his affidavit summarised above at [15]-[43], to submit that he has taken many steps to try to understand the SWO. These actions are relied on to demonstrate the reasons Mr Hayward delayed commencing judicial review proceedings by three and a half years. Events which pre-date the issue of the Notice of Intention dated 11 November 2020 are irrelevant to consider in terms of UCPR r 59.10. That the Council obtained legal advice from its solicitors dated 30 July 2019 about avenues to address development at the Property is irrelevant.

  4. The correspondence and regulatory directions issued relating to fill at the Property (Direction to Take Preventative Action dated 21 August 2020 and the Notice to Furnish Information and Records dated 28 September 2020) from 6 August 2020 to 28 September 2020 are irrelevant as these events occurred before the Notice of Intention. Similarly the complaint made to the Ombudsman forwarded to the Council on 12 October 2020 is irrelevant given that occurred before the Notice of Intention.

  5. The GIPA Act request made just after the Notice of Intention was issued was first responded to by the Council’s GIPA officer in November 2020. Clarification of the GIPA Act request was sought and discussed from December 2020 to April 2021 according to attachments to Mr Hayward’s affidavit. Part of the GIPA officer’s response to Mr Hayward sought to limit the scope of the request made. Further correspondence on the GIPA Act request occurred in October 2022. While Mr Hayward submitted that his ability to respond to the SWO relied on the response to the GIPA Act request, how that was the case was not made clear.

  6. Mr Hayward did respond to the Notice of Intention by email dated 2 December 2020 which was attached to both Mr Harding’s affidavit and Mr Hayward’s affidavit. His response in cross-examination that he could not recall if he prepared the email appears inconsistent with the written evidence.

  7. A further approach to the Ombudsman was made by Ms DeMarco on 24 June 2021. The letter from the Council to Ms DeMarco and Mr Hayward dated 7 June 2022 referred to their concerns raised with the Ombudsman and sought to facilitate a site inspection of the Property. The email to Ms DeMarco from the Council on 10 February 2023 indicated the Council had attempted to organise a time with Mr Hayward or Ms DeMarco to inspect the Property but had been unsuccessful and was issued a search warrant to enter the Property as a result. That email also stated the Council would send further correspondence about their investigation. Mr Hayward submitted they were waiting for such correspondence in order to understand the SWO. That there was further interaction with the Council in 2021-2023 as a result of the complaint to the Ombudsman was relied on to further explain the delay.

  8. Reliance on Bachelard which considered the public interest in the Freedom of Information Act does not assist Mr Hayward in his UCPR r 59.10(1) application.

  9. The SWO included notice of an appeal period of 28 days as required by Sch 5 Part 4 cl 4(2). Mr Hayward’s oral evidence was that he was unaware of the 28‑day appeal period as advised in the SWO. Ms DeMarco’s submission was that as information requested in the GIPA Act request was not received in a timely way the appeal period of 28 days passed before action could be taken, suggesting that she was aware of the appeal period.

  10. Another reason for delay relied on was that Mr Hayward, through Ms DeMarco, submitted that he only became aware of the availability of judicial review proceedings when he met with a duty solicitor at the Court. Ms DeMarco did not specify when this occurred. These proceedings were commenced in June 2024.

  11. I note Mr Hayward also made submissions that the Council’s failure to provide resources or support to him or have a meeting had prejudiced his ability to respond to or appeal the SWO. As the Council was not obliged to do more than it did these submissions do not identify matters relevant to the exercise of discretion on the application to extend time.

  12. In conclusion, taking all these matters into account, I accept that Mr Hayward has sought to provide a reasonable explanation on his terms for why he delayed so long in commencing judicial review proceedings. He and his wife certainly sought information, filed a GIPA Act request and approached the Ombudsman seeking to clarify matters they considered to be relevant to their understanding of the SWO. Accepting Ms DeMarco’s submission that the first time Mr Hayward became aware of judicial review proceedings was as a result of consulting a duty lawyer at the Court, and the lack of prejudice to the Council if an extension of time is granted, I will grant the application for an extension of time to file these judicial review proceedings.

  13. I have not particularly considered whether Mr Hayward has an arguable case in arriving at that conclusion, as I am next determining the substantive ground remaining in the amended summons.

B. Has Mr Hayward established ground 15 in the amended summons?

  1. Mr Hayward must discharge the onus he bears of establishing remaining ground 15. As the Council identified and as Mr Hayward’s agent was advised during the hearing a number of submissions addressed issues that do not arise given the limited remaining ground 15. That the SWO required immediate compliance is contemplated by Sch 5 Pt 11 cl 27. The findings in Joblin about futurity are not relevant. The other arguments identified by Mr Hayward alleging the SWO was unclear, lacked certainty and that Mr Hayward was not able to understand what was required go beyond the scope of the argument remaining on ground 15 and were not grounds permitted in Hayward (Duggan J).

First part of ground 15

  1. The first part of ground 15 alleges that there was no factual foundation present that would enliven the power to issue a SWO. The SWO specifies the following two types of building works:

  1. Unauthorised alterations, additions and extension to the dwelling on the Property.

  2. Continuation of the construction of the dwelling on the Property otherwise than in accordance with the consent to the 2000 DA (as modified).

  1. Reasons are provided in the SWO in 17 paragraphs which identify the planning approval history for the Property and work in the two specified categories.

  2. Mr Hayward’s case seemed to be that firstly the reasons as stated were merely a history of what was on the Council’s file for the Property and could not properly found the SWO as a history is not reasons. The SWO does not establish that there has been a contravention of the EPA Act. I do not accept these submissions. Read on its face the plain terms of the SWO are clear and can be determined objectively, see Joblin at [69]. The section headed ‘Reasons’ which necessarily identifies the planning history given the nature of the work alleged to be unauthorised in a plain reading is Mr Harding’s reasons for issuing the SWO.

  3. Mr Hayward did not file evidence to support the submission that the work the subject of the SWO was validly done under the approved 2000 DA. The Council accepted the 2000 DA was in effect. Mr Hayward referred to Mr Harding’s affidavit which contained photographs of a site inspection undertaken at the Property on 7 August 2020. A floor plan for the approved development was also annexed to Mr Harding’s affidavit. Mr Hayward submitted generally that the work shown in the photographs was carried out in accordance with the 2000 DA as shown on the plan and in accordance with the construction certificate in evidence. Further he submitted that no work undertaken was prohibited.

  4. I accept the Council’s argument that in the absence of evidence from Mr Hayward to support his argument that any work done did comply with the EPA Act (as opposed to his opinion) the lack of evidence means that the Council should be entitled to the presumption of regularity. Given that Mr Hayward bears the onus of establishing that the SWO lacks a factual basis strictly speaking the Council did not need to file Mr Harding’s affidavit. Mr Harding’s affidavit identifies the basis for him forming the opinion that the circumstances underpinning the two categories of work the subject of the SWO existed. As there is no competing evidence to contradict Mr Harding’s opinion evidence of a breach of the EPA Act in the two areas which are the subject of the SWO Mr Hayward cannot succeed on this aspect of ground 15.

Second part of ground 15

  1. The second part of ground 15 states that the alleged contravention of the EPA Act in the SWO cannot be made out nor does the Council in providing reasons for the SWO establish what work if any was being carried out outside the scope of the existing consent.

  2. Mr Hayward submitted that no reasons were provided to support the SWO. The Council failed to afford procedural fairness in the issuing of the SWO in light of the obligations in EPA Act Sch 5 Pt 5 and the provisions in Pt 7 for representations in relation to proposed orders. Mr Hayward also submitted relying on Joblin at [67] that an order must be clear and unambiguous and that as he was unable to understand the terms of the SWO it was invalid.

  1. The Council submitted this ground was contrary to Hayward (Duggan J) where the summons was largely struck out other than to permit the amended ground 15. In any event the Council has more than complied with the procedural requirements in Sch 5 of the EPA Act. The Council provided the Notice of Intention when the requirements of Pt 5 cl 6(1) requiring notice to be given before giving an order did not apply by virtue of subcl (2)(a). That subclause specifies that subcl (1) does not apply to a general order under item 2, Pt 1 of Schedule 5. I agree with this submission. Further Mr Hayward had the chance to make representations to the Council as provided by Part 7 cl 13.

  2. The Council also submitted Mr Hayward relied on correspondence sent to the Council by him or Ms DeMarco prior to the Notice of Intention that Mr Hayward said had been ignored. The Council submitted it was not required to take into account correspondence predating the Notice of Intention in deciding whether to give an order. I agree, as I have already determined above in [78].

  3. Mr Hayward is unsuccessful on this aspect of ground 15.

Third part of ground 15

  1. To the extent I could understand Mr Hayward’s argument on the third part, it appeared to be submitted that it was not appropriate to issue a SWO where building work in contravention of a development consent is being carried out. Rather a compliance order under item 11 in the table in Sch 5 Pt 1 of the EPA Act should have been issued in these circumstances.

  2. As the Council submitted this argument can be rejected on a plain reading of Sch 5 which provides that a Stop Work Order may be given to “stop building work … carried out in contravention of this Act”. Respectively, sections 4.2 and 4.3 of the EPA Act:

  1. prohibit the carrying out of development that requires consent, unless consent is first obtained and then complied with in carrying out the development; and

  2. unconditionally prohibit the carrying out of development for which consent cannot be obtained.

  1. A “contravention of this Act” of the nature referred to in Sch 5 to the EPA Act must include not only the carrying out of prohibited development as referred to in s 4.3 and development that requires consent without first obtaining that consent as referred to in s 4.2(1)(a), but also development for which consent has been obtained but which is carried out otherwise than in accordance with the consent as referred to in s 4.2(1)(b). In this case, the SWO is partly concerned with non-compliant erection of a dwelling house in breach of various consent conditions, and partly with unauthorised alterations and additions to that dwelling. Both fall squarely within the scope of “building work … carried out in contravention of this Act” for the purposes of Sch 5, and this last sub-ground must be rejected.

  2. Mr Hayward’s submissions that the Council could have modified or revoked the SWO as provided in Pt 10 of Sch 5 are irrelevant to his application for an extension of time in that such an exercise of the Council’s discretion is not reviewable here.

  3. Mr Hayward is unsuccessful on this aspect of ground 15. Accordingly Mr Hayward has not established the three aspects of amended ground 15.

Conclusion

  1. Mr Hayward has not discharged his onus of establishing the substantive remaining ground 15 in the amended summons. The amended summons for judicial review is dismissed.

Costs

  1. As these are Class 4 judicial review proceedings the usual rule is that costs follow the event so that the usual order is that Mr Hayward pay the Council’s costs of the amended summons. Mr Hayward was successful on his Notice of Motion. The parties have not addressed costs and that opportunity will be provided to them. Costs will be reserved to enable an agreed timetable for argument, if any, to occur.

Orders

  1. In the Applicant’s Notice of Motion dated 9 July 2024 the Court orders:

  1. The Notice of Motion is granted.

  2. Costs are reserved.

  1. In the Applicant’s amended summons dated 8 November 2024 the Court orders:

  1. The amended summons is dismissed.

  2. Costs are reserved.

**********

Decision last updated: 17 April 2025

Most Recent Citation
Cases Citing This Decision

1

Hayward v Hornsby Shire Council (No 3) [2025] NSWLEC 57
Cases Cited

5

Statutory Material Cited

9

Bachelard v Australian Federal Police [2025] FCAFC 5
Ballina Shire Council v Joblin [2022] NSWLEC 90
Hayward v Hornsby Shire Council [2024] NSWLEC 106