Lane Cove Council v Chami (No 3)

[2014] NSWLEC 18

Land and Environment Court

New South Wales

Medium Neutral Citation:

Lane Cove Council v Chami (No 3) [2014] NSWLEC 18

Hearing dates:

10 March 2014

Decision date:

12 March 2014

Jurisdiction:

Class 4

Before:

Pain J

Decision:

1. From 23 April 2014 until further order of this Court or until an occupation certificate is issued in relation to the works carried out pursuant to development consent DA 325/07, Ms Chami is restrained from residing at 8 Bayview Street, Northwood.

2. Costs are reserved.

Catchwords:

INTERLOCUTORY RELIEF - exercise of discretion whether to make order preventing occupation of house in absence of occupation certificate

Legislation Cited:

Environmental Planning and Assessment Act 1979 Pt 4A Division 1

Cases Cited:

Castlemaine Tooheys Ltd v The State of South Australia [1986] HCA 58; (1986) 161 CLR 148
Lane Cove Council v Chami (No 2) [2014] NSWLEC 11
Lane Cove Council v Ross (No 14) [2013] NSWLEC 87

Category:

Interlocutory applications

Parties:

Lane Cove Council (Applicant)
Chami, Sarab (Respondent)

Representation:

Mr N Eastman (Applicant)
In person (Respondent)
Pikes & Verekers Lawyers

File Number(s):

40044 of 2014

Judgment

1. In these Class 4 proceedings Lane Cove Council (the Council) seek orders requiring demolition of unauthorised building work carried out at a house in Bayview Street, Northwood (the house) and reinstatement works. Similar orders were made in Lane Cove Council v Ross (No 14) [2013] NSWLEC 87 (Ross No 14). The Council is seeking the same orders against Ms Chami as were made against Mr Ross because she is now the owner and I understand is preventing Mr Ross from complying with the Court's orders to demolish and reinstate the building. These proceedings were commenced by the Council in January 2014 against Ms Chami.

1. Ms Chami represented herself before me. Ms Chami is presently in occupation of the house. No occupation certificate has been issued for the house. Ms Chami advised the Council and the Court that she occupied the house from January 2014 during interlocutory injunction proceedings seeking orders restraining building works before Sheahan J heard on 4, 7 and 10 February 2014. His Honour granted the injunction sought by the Council on 10 February 2014 stopping building work then continuing at the house in Lane Cove Council v Chami (No 2) [2014] NSWLEC 11 (Chami (No 2)). The Council then becoming aware for the first time that Ms Chami was in occupation amended its summons on 18 February 2014 to add par 4A which seeks an order that Ms Chami be restrained from residing in the house until an occupation certificate is granted in relation to the works required to be carried out pursuant to development consent DA325/07.

1. The proceedings were set down for final hearing on 10 March 2014. Ms Chami filed a Notice of Motion on 28 February 2014 seeking orders that the proceedings be adjourned pending determination of an application for a building certificate and/or merit appeal in the Court inter alia. By agreement with Ms Chami the Council has now entered into orders made by the Registrar on 6 February 2014 which allow Ms Chami to apply for a building certificate in relation to the works carried out thus far and exercise any right of merit appeal to the Court in the event of a refusal. If the appeal is unsuccessful the Council is likely to press for the demolition and reinstatement orders identified in the amended summons. The only outstanding issue in relation to these orders is whether an order should be made preventing occupation of the house by Ms Chami until further order of the Court, or the issuing of an occupation certificate for works carried out pursuant to DA325/07. That is the issue before me.

1. It is useful to consider the part of the proceedings before me as an extension of the interlocutory proceedings before Sheahan J. The relevant legal context for my consideration is whether relief, here the order preventing occupation of the house, should be granted pending a final resolution of all issues. Questions arise of whether there is a serious question to be tried and whether the balance of convenience favours the making of the order per Castlemaine Tooheys Ltd v The State of South Australia [1986] HCA 58; (1986) 161 CLR 148 at 153 cited in various authorities in this Court. Part of the analysis of the Court must be the extent of environmental harm caused if the order is not made weighed against the harm likely to be suffered by Ms Chami if the order is made. The giving of an interlocutory undertaking as to damages usually considered in relation to the making of an interlocutory order is not relevant to the circumstances of this matter.

Environmental Planning and Assessment Act 1979

1. Relevant sections of the Environmental Planning and Assessment Act 1979 (EPA Act) including Div 1 of Pt 4 are set out below.

4 Definitions

occupation certificate means a certificate referred to in section 109C (1) (c).

109C Part 4A certificates

(1) The following certificates (known collectively as Part 4A certificates) may be issued for the purposes of this Part:

(c) an occupation certificate, being a certificate that authorises:

(i) the occupation and use of a new building

...

(4) In this section:

new building includes an altered portion of, or an extension to, an existing building.

...

109D Certifying authorities

(2) An occupation certificate must not be issued to authorise a person to commence occupation or use of a new building except by the principal certifying authority appointed for the erection of the building.

...

109H Restrictions on issue of occupation certificates

(1) There are two kinds of occupation certificates, as follows:

(a) an interim occupation certificate that authorises a person to commence occupation or use of a partially completed new building, or to commence a new use of part of a building resulting from a change of building use for an existing building,

(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.

It is not necessary for an interim occupation certificate to be issued before a final occupation certificate is issued with respect to the same building.

(2) An occupation certificate must not be issued unless any preconditions to the issue of the certificate that are specified in a development consent or complying development certificate, or any requirements of a planning agreement referred to in section 93F that, by its terms, are required to be complied with before such a certificate is issued, have been met.

(3) An interim occupation certificate must not be issued to authorise a person to commence to occupy or use a partially completed 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 partially completed building is suitable for occupation or use in accordance with its classification under the Building Code of Australia, and

(d) such other requirements as are required by the regulations to be complied with before such a certificate may be issued have been complied with.

(4) An interim occupation certificate must not be issued to authorise a person to commence a new use of part of a building resulting from a change of building use for an existing building unless:

(a) a development consent or complying development certificate is in force with respect to the change of building use, and

(b) the part of the building is suitable for occupation or use in accordance with its classification under the Building Code of Australia, and

(c) such other requirements as are required by the regulations to be complied with before such a certificate may be issued have been complied with.

(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.

(6) A final occupation certificate must not be issued to authorise a person to commence a new use of a building resulting from a change of building use for an existing building unless:

(a) a development consent or complying development certificate is in force with respect to the change of building use, and

(b) the building is suitable for occupation or use in accordance with its classification under the Building Code of Australia, and

(c) such other matters as are required by the regulations to be complied with before such a certificate may be issued have been complied with.

(7) In this section:

new building includes an altered portion of, or an extension to, an existing building.

Evidence

1. The Council read the affidavits of Mr Moore, senior building surveyor at the Council, sworn on 30 January 2014 and 18 February 2014. Mr Moore's affidavit sworn on 30 January 2014 attaches the orders made by Pepper J on 14 June 2013, the transfer of the house to Ms Chami and photographs of the house. In the affidavit sworn on 18 February 2014 Mr Moore states that he has been observing the building works taking place at the house since approximately September 2011. Mr Moore states that although described in the development consent DA 325/07 as alterations and additions to an existing dwelling house, the building works have been extensive and there is no portion of the previously existing building that would be regarded as unaltered. The building as it presently stands is alternatively new works, an extension of the existing building or an altered portion of the previously existing building (par 9). There is no record of an occupation certificate for the house. Mr Moore does not regard the house as habitable under the Building Code of Australia (par 13).

1. Mr Moore gave oral evidence. In evidence in chief Mr Moore was shown the photographs attached to Ms Chami's affidavit dated 10 March 2014. Concerning the photograph labelled by Ms Chami as "old dining" Mr Moore stated that it has been extensively altered with new ceilings, floors, windows, balcony extensions and concrete slabs put into that area. Regarding annexure B to Ms Chami's affidavit dated 10 March 2014 Mr Moore stated that what was the old dining is now a study and the kitchen was approved in 2008 as a store.

1. Mr Moore was cross-examined. Mr Moore stated that in two to three years of inspections of the house he had not seen a kitchen in the area approved as a storage area. He did not agree with Ms Chami that this area had always been a kitchen. Mr Moore does not know where the original entry was because he has only inspected the house over the last two and half years and the entry had been changed.

1. Ms Chami read her affidavits dated 28 February 2014 and 10 March 2014. Ms Chami's affidavit affirmed 28 February 2014 sets out the history of the matter, all of which is not relevant to the issue the Court must now consider. Ms Chami's unsworn and undated affidavit headed 10 March 2014 states that there is no prejudice to the Council by her continuing to reside at the house and that the prejudice to her would be extreme as she will be forced to live on the street with her children. She does not have the financial resources to pay rent for another property whilst paying legal bills and making payments towards the borrowings on the house. She works in her sister's coffee shop and earns around $600 per week. Ms Chami attached three annexures to this affidavit. Annexure A she stated is the pre-existing layout of the first and second floor plans prior to the application for DA 325/2007. Annexure B is stated to be the as built drawings (ground floor) and annexure C (first floor) with handwritten amendments. Photographs of the house were also attached.

1. Ms Chami tendered draft expert reports by Dr Muhunthan of Neilly Davies consulting engineers dated 5 March 2014 and 7 March 2014, and the curriculum vitae of Dr Muhunthan (exhibit 1). These were tendered without notice to the Council. These state that the double garage, balcony slab projections and extensions, ground floor rear excavations and slab, walls and general areas inspected appear to be structurally safe. These were tendered with a disclaimer that the assessment is based on a visual non-invasive structural inspection. It refers to an absence of defects, cracks, or seemingly excessive loading.

1. Ms Chami was cross-examined. She stated that she became the registered proprietor of the house on 3 May 2013 and bought it for $1 million. There is no registered mortgage on the house. There is short term lending on the Northwood property and Ms Chami is not sure why this mortgage is not registered. She became the registered proprietor of a property in Naremburn on 5 May 2013. Ms Chami resides at the house in Northwood and moved there in January 2014. She previously lived at her father's place in Strathfield. This property was sold in 2011. The Naremburn property does not have a tenant and is fully financed by short term lending which was organised by her family. It was bought on behalf of her family to be made into a childcare centre. She became the registered proprietor because she could get the loan because of her age. Her parents are repaying the loan. She is not sure why the loan is not registered. She believes that this property is not habitable. If Ms Chami has to move out of the Northwood house she would have to rent.

1. Concerning annexure A to Ms Chami's 10 March 2014 affidavit, Mr Chami stated that is a plan from a real estate agent's pamphlet of the house. This colour marketing brochure by Ray White with the house pre-alterations was called for and tendered by the Council (exhibit A). Ms Chami did not accept Mr Moore's evidence that the kitchen had been put in during construction.

1. The Council also tendered a Notice to Produce dated 26 February 2014 (exhibit B) and a photograph of extensive building works at the house including a double garage and driveway marked up by Ms Chami during cross-examination (exhibit C). The Notice to Produce requires production of the following:

(a)   The conveyancing file and records relating to the property known as 8 Bayview Street, Northwood between Raymond Ross and Sarab Chami including, but not limited to, the contract for sale document.

(b)   All trust deeds or documents (including correspondence, file notes, emails) evidencing Ms Chami's equitable interest in the property from 2006 to the present.

(c)   Birth certificates for each of Ms Chami's children.

1. No documents were produced by Ms Chami in response to the Notice to Produce.

Council's submissions

1. To allow Ms Chami to reside at the house thwarts the legislative intention in the EPA Act of provisions requiring occupation certificates to be obtained before altered residential buildings are occupied. Such certificates ensure compliance with safety requirements inter alia. Ms Chami moved in only in January 2014 and is well aware of the protracted history of the unauthorised building work and that demolition of this had been ordered by the Court in Ross (No 14). Ms Chami has not established hardship, providing only cursory evidence to support her case. No documents have been produced in response to the Notice to Produce served by the Council.

1. Ms Chami's oral evidence in cross-examination is that she is the registered proprietor of the Bayview Street house which was purchased for $1 million in May 2013 and also of another property at Naremburn purchased for $1.391 million also in May 2013. There is no registered mortgage on these properties. Her evidence is that the Naremburn property has been purchased for a commercial development opportunity of a childcare centre. The property is otherwise vacant and has a bathroom. Ms Chami should not have the benefit of unlawful work, which unlawfulness was admitted in Ross (No 14) and before Sheahan J.

1. An occupation certificate is required to live in the ground floor and second floor areas claimed to be used by Ms Chami as this is new building work as defined in the EPA Act and requires an occupation certificate to be issued before the house can be occupied.

Ms Chami's submissions

1. Ms Chami says in her affidavit she cannot afford to move out and will have to live on the street if she cannot reside at the house. She has a child in school in the local area. Her income from employment at a coffee shop is $600 per week. She cannot afford to move out and pay rent and pay legal bills. She also does not believe she requires an occupation certificate as she is living in part of the original house which has not been altered. These can be seen by comparing the floor plan of the house when bought (Annexure A to her affidavit) with the s 96 modification application plan (Annexure B to her affidavit).

Finding

1. The background to these proceedings can be found in the related proceedings Ross (No 14), which involved the same house and same extensive unauthorised work identified at [21]-[35] of that judgment. Further evidence was considered and findings made in relation to the work being carried out at the house by Sheahan J on an interlocutory basis as canvassed in Chami (No 2). It is not appropriate that I revisit this history and the issues already determined by the Court in considering this application. The requirement to obtain an occupation certificate for new building work is set out in Div 1 Pt 4A certificates of the EPA Act, parts of which are set out above. An occupation certificate issued by a principal certifying authority is required before the occupation and use of a new building under s 109D(2) and s 109H(1).

1. Under s 109H(6) an interim or final occupation certificate cannot be issued until the building is suitable for occupation or use in accordance with the Building Code of Australia. New building is defined in s 109C(4) to include an altered portion of, or an extension to, an existing building. One is clearly required for the work undertaken at the house as detailed in the affidavits of Mr Moore. I accept his evidence set out at par 5 above. Further Mr Moore considers the Building Code of Australia has not been complied with. The draft engineering reports tendered by Ms Chami are draft only, are qualified by a substantial disclaimer, and were not able to be tested by the Council. Nor do they address compliance with the Building Code of Australia. I therefore give these little weight in light of Mr Moore's evidence particularly given his familiarity with the house over the last two and a half years.

1. Ms Chami sought to compare the plan of the house contained in the real estate agents' marketing brochure with the plan prepared for a s 96 modification application which was not ultimately granted. Her submission to the extent that I could understand it was that she did not require an occupation certificate because she was occupying parts of the old house on the ground floor as originally used when the house was bought and this was not therefore a new building. As the Council submitted, an occupation certificate for the use and occupation of the house is required given the definition in the EPA Act of new building as an altered portion of, or an extension to, an existing building. The evidence of Mr Moore and the findings of Pepper J in Ross (No 14) demonstrate that the existing building has been altered and extended extensively. An occupation certificate for occupation and use of the building is required. There is a serious question to be tried, and indeed it appears uncontestable that an occupation certificate is required before the house can be occupied. No such certificate has been issued by the private certifier, as confirmed in correspondence from him attached to Mr Moore's affidavit dated 18 February 2014. Ms Chami is in occupation of the house in breach of the requirements of Div 1 Pt 4A of the EPA Act.

1. In terms of the balance of convenience and the harm caused by the making of the order, a relevant matter to consider is the importance of upholding the integrity of the planning system as contained in the EPA Act in relation to occupation certificates, as the Council submitted. That suggests that Ms Chami should not continue in occupation until the situation in relation to the house has been regularised, assuming this can occur, whether by court order or the issue of an occupation certificate. If allowed to continue living at the house Ms Chami essentially benefits from the carrying out of unauthorised building work, which was ordered to be demolished in Ross (No 14). Ms Chami was aware of those proceedings and is referred to in Ross (No 14) as Ms Edilbi. It is within contemplation in these proceedings that the same orders for demolition of the same work and reinstatement could be made down the track.

1. Ms Chami says she will suffer hardship if the order is made. Ms Chami did not identify her assets in her affidavit headed 10 March 2014. The only brief evidence of her financial position in that affidavit is that she has a job. According to her answers in cross-examination, she is the registered proprietor of two houses worth in excess of $2 million and there is no registered mortgage on either property. In oral evidence Ms Chami stated that the Naremburn property was subject to a short term loan but provided no effective detail about what this meant. No documents were produced pursuant to the Council's Notice to Produce which, if produced, would have shed more light on her financial position in relation to the house. Ms Chami's evidence was that she lived with her parents at Strathfield until moving to the house. Her evidence conflicted given that she also said her parents sold the Strathfield property in 2011. She has three sisters and two brothers. The property at Naremburn in which a residential use is allowed was bought by her on behalf of her parents with a view to commercial development as a childcare centre. It is presently unoccupied. While Ms Chami stated it was uninhabitable, she provided no evidence to support that statement. One of her brothers is pursuing a development application for a childcare centre at the Naremburn property with the relevant council.

1. I do not consider that I have an adequate understanding of Ms Chami's financial position which is a matter she could have done far more to address had she wanted this to be properly understood by the Court. I gained the impression that Ms Chami was well able to manage her affairs and well understood the issues before the Court. She moved into the house only recently. Ms Chami has not demonstrated that she will suffer hardship if the order sought by the Council is made in that I consider she is very likely to have financial capacity and/or family support to enable her to make alternative satisfactory living arrangements.

1. Weighing up these various factors suggests the balance of convenience favours the making of the order sought by the Council.

1. I intend to make the order sought by the Council. Given that Ms Chami will need to make alternative living arrangements I will postpone the order coming into effect for six weeks to enable her to make those arrangements.

Order

1. The Court makes the following orders:

(1)   That from 23 April 2014 until further order of this Court or until an occupation certificate is issued in relation to the works carried out pursuant to development consent DA 325/07, Ms Chami is restrained from residing at 8 Bayview Street, Northwood.

(2)   Costs are reserved.

**********

Decision last updated: 13 March 2014