Lesnewski v Mosman Municipal Council
[2004] NSWLEC 99
•29 March 2004
NEW SOUTH WALES LAND AND ENVIRONMENT COURT
CITATION: Lesnewski v Mosman Municipal Council & Anor [2004] NSWLEC 99
PARTIES:
APPLICANT
Helen Lesnewski
RESPONDENT
Mosman Municipal Council
Robert J Wright and Carol Wright
CASE NUMBER: (4)0085 of 2002
CATCH WORDS: Judicial Review
LEGISLATION CITED:
Environmental Planning and Assessment Act 1979 s 122, s 123, s 124
Environmental Planning and Assessment Regulation 2000 cl 145
CORAM: Pain J
DATES OF HEARING: 28/07/03, 29/07/03, 27/11/03, 28/11/03, 1/12/03
DECISION DATE: 29/03/2004
LEGAL REPRESENTATIVES
APPLICANT
Mr J Webster SC
SOLICITORS
Hunt & Hunt
FIRST RESPONDENT
Mr P Tomasetti
SOLICITORS
Pike Pike & Fenwick
SECOND RESPONDENT
Mr J Robson
SOLICITORS
Freehills
JUDGMENT:
IN THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES
(4)0085 of 2002
Pain J
29 March 2004
HELEN LESNEWSKI
Applicant
v
MOSMAN MUNICIPAL COUNCIL
First Respondent
ROBERT J WRIGHT and CAROL WRIGHT
Second Respondents
Judgment
Introduction
Mrs Lesnewski (“the Applicant”) is the owner of 1 Hopetoun Avenue, Mosman. Her neighbours at 3 Hopetoun Avenue Mosman, Mr and Mrs Wright (“the Second Respondents”), received development consent for the construction of a house and pool on their property from the Council on 28 August 2000. The Applicant has commenced Class 4 proceedings challenging the construction certificate issued by the Council to the Second Respondents on 4 December 2000 in relation to the Second Respondents’ property. The Applicant also argues that the Second Respondents' house and pool have not been constructed in accordance with the plans approved in the development consent and the construction certificate issued by the Council so that such work does not have development consent, is illegal, and some of that work should be removed.
The Applicant seeks the following relief:
(i)a declaration that the construction certificate is invalid, null and void and of no effect;
(ii)a declaration that the Second Respondents have carried out works without consent under the Environmental Planning and Assessment Act 1979 (“the EP&A Act”); and
(iii)an order that the Second Respondents carry out certain works.
There have been a number of amendments to the pleadings since these proceedings were commenced on 6 May 2002. The original proceedings challenged the development consent issued by the Council. One set of amendments was necessitated by my judgment on 9 April 2003 holding that the Applicant was prevented by s101 of the EP&A Act from challenging the grant of development consent. In July 2003, when these proceedings were part heard, the Court upheld an appeal by the Second Respondents pursuant to s 96 of the EP&A Act so that the Second Respondents' development consent was modified in a number of material respects. This affected the Applicant's case in these proceedings, principally by reducing the number of items of non-compliance alleged.
The Applicant and the Second Respondents relied on extensive affidavit evidence as follows:
(a)For the Applicant:
(1)Mrs Lesnewski, the Applicant, swore affidavits dated 6 May 2002, 14 October 2002 and 25 June 2003;
(2)Mr O’Hanlon, the Applicant’s husband who resides with the Applicant at 1 Hopetoun Avenue, Mosman, swore an affidavit dated 24 September 2002;
(3)Mr Crane, a town planner, swore an affidavit dated 2 July 2003;
(4)Mr Urludag, a town planner, swore affidavits dated 14 October 2002 and 18 June 2003; and
Mr Keats, a surveyor, swore an affidavit dated 23 July 2003.
(b)For the Second Respondents:
(1)Mr Wright, one of the Second Respondents, swore affidavits dated 4 September 2002 and 10 February 2003; and
(2)Mr Brindle, a town planner, swore affidavits dated 11 September 2002, 15 November 2002 and 21 July 2003.
The Council did not tender any additional evidence.
Grounds of invalidity of construction certificate
The Applicant alleged that the construction certificate is invalid on four grounds. Paragraph 18 of the Second Further Amended Points of Claim filed by the Applicant expresses these grounds as follows:
18In the Premises the said Construction Certificate was invalid being inconsistent with the Development Consent and in breach of Regulation 145(1)(a).
18.AAlternatively the decision by the Council to approve the said Construction Certificate is one which was not reasonably open to the Council and was manifestly unreasonable.
18.BAlternatively the Respondent Council gave no real consideration to the inconsistency between the Development approval and the Construction Certificate Application as required by clause 145A [sic - cl 145(1)(a)] of the Regulations and thereby breached the Environmental Planning and Assessment Act.
18.CThe approval of the Construction Certificate exceeded the jurisdiction of the Council in that the Construction Certificate was inconsistent with the Development Application.
Argument 1 - Court has power to consider a breach of the EP&A Regulation (par 18 of the Second Further Amended Points of Claim)
The Applicant submitted that:
(a)as s 122, s 123 and s 124 of the EP&A Act gives the Court power to consider whether there has been a breach of the Environmental Planning and Assessment Regulation 2000 (the EP&A Regulation); and
(b)a reference to the EP&A Act in s 123 and s 124 is defined to include the EP&A Regulation (s 122);
then the Court has power to determine whether the EP&A Regulation has been breached. The Applicant argued that the Court has jurisdiction on this basis separate to its jurisdiction based on a finding that there is a jurisdictional fact in issue. Authority for this argument was said to be based on the decision of Bignold J in Donnelly v Delta Gold Pty Ltd (2001) 113 LGERA 34 at 53.
The Council argued that there can be no such separate ground of challenge. The Second Respondents adopted the Council’s submissions. The Council argued that the Applicant must prove that the decision maker made the determination beyond its jurisdiction through factual or legal error. Where it is alleged that the decision maker has made an error such that the decision is invalid or void, it must be shown that the error is within one of the categories outlined in Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24. If an error of law is found then judicial review may be available. If the error alleged is one of fact then, unless the fact is a jurisdictional fact or the determination is unreasonable in the Wednesbury sense, the decision is not subject to challenge. The Council submitted that the Applicant cannot simply allege, as it does in par 18 of the Second Further Amended Points of Claim, that the Council breached the EP&A Act when it issued the construction certificate. The Applicant must articulate the error said to constitute a breach. If the alleged breach is that the decision maker made a mistake of fact in coming to the decision that it did, that is not a breach of the EP&A Act at all.
Finding on argument 1
I do not consider that the separate ground raised in par 18 of the Second Further Amended Points of Claim is available to the Applicant. The argument appears to be a novel one and it is not entirely clear to me how the Court could have jurisdiction in these circumstances. I do not consider that Donnelly establishes the precedent the Applicant argues. Clause 145(1) of the EP&A Regulation provides that a certifying authority must not issue a construction certificate “unless it is satisfied … that the design and construction of the building ….[is] not inconsistent with the development consent.” Accordingly, the clause turns on the satisfaction of the certifying authority and it is not open to this Court to review whether or not the certifying authority was correct in being satisfied that the design and construction of the building was not inconsistent with the development consent unless this decision is based on some error of law. Accordingly, I agree with and adopt the Council's submissions set out at par 7 above.
Argument 2 - jurisdictional fact (paragraph 18C of Second Further Amended Points of Claim)
The Applicant also argued that the requirement imposed by cl 145(1)(a) of the EP&A Regulation that the certifying authority, in this case the Council, be satisfied that the design and construction of the building was not inconsistent with the development consent was a preliminary finding to the grant of a construction certificate and therefore a jurisdictional fact. Accordingly, the Court is able to reach its own determination as to whether such a fact exists. Reliance was placed by the Applicant on Transport Action Group Against Motorways Inc v Roads and Traffic Authority (1999) 104 LGERA 133 at [146] and [192 – 3] and Corporation of the City of Enfield v Development Assessment Commission (2000) 199 CLR 135. The Applicant also relied on the recent decision of Ipp J in Chambers v Maclean Shire Council (2003) 126 LGERA 7 where his Honour held at [47] that, adopting Spigelman CJ in Timbarra Protection Coalition Inc v Ross Mining NL (1999) 46 NSWLR 55 at [65], “if the factual reference is preliminary or ancillary to the exercise of a statutory power, the conclusion is likely to be a jurisdictional fact.”
The Council argued, in submissions also adopted by the Second Respondents, that the decision to issue a construction certificate under cl 145 does not involve a jurisdictional fact, and so, it is not open to the Court to declare the construction certificate void if the Court finds that the construction certificate is, in fact, inconsistent with the development consent. The wording of cl 145 refers to the need for the Council to be “satisfied” with certain matters. This wording suggests that the finding is not jurisdictional in nature. The Council placed reliance on Timbarra at [40] and [42] and Enfield as supporting its submission that, when a statute is framed in a way that permits the decision maker to form an opinion, the statute, generally speaking, does not raise for consideration a jurisdictional fact. When minds may differ about some state of affairs the finding is one which is probably not jurisdictional in nature. The Council submitted that s 109O(1) of the EP&A Act makes clear that the decision is one for the decision maker and not the Court. Further, the Council submitted that “consistent with” does not mean “precisely the same as” or “identical with”. The Council argued that the scheme of the EP&A Act makes it clear that there will be differences between a development consent and a construction certificate as to, amongst other matters, the level of detail and that that is what has occurred in this case.
Finding on argument 2 - jurisdictional fact
In my view the scheme contained in the EP&A Act regulating the issue of construction certificates by a certifying authority, together with the wording in cl 145 of the EP&A Regulation requiring that the certifying authority be satisfied in relation to the absence of inconsistency, suggests that the decision mandated by cl 145 of the EP&A Regulation is not a jurisdictional fact. It is helpful to look at this legislative scheme in some detail.
Section 4 of the EP&A Act provides that "construction certificate" means “a certificate referred to in section 109C(1)(b)”. Section 109C(1) states:
The following certificates (known collectively as Part 4A certificates) may be issued for the purposes of this Part:
…(b)a “construction certificate”, being a certificate to the effect that work completed in accordance with specified plans and specifications will comply with the requirements of the regulations referred to in section 81A (5) …
Section 81A(5) of the EP&A Act provides that “[t]he regulations may make provision concerning the issue of certificates for the erection of buildings…”. Section 109F(1) of the EP&A Act provides that a construction certificate must not be issued unless the certifying authority is satisfied that the requirements of the regulations referred to in s 81A(5) have been complied with. Section 109O(1) of the EP&A Act provides:
For the purpose of enabling a Part 4A certificate or a complying development certificate to be issued by a certifying authority, the regulations may provide that any requirement for a consent authority or council to be satisfied as to any specified matter (or any matter of a specified class of matters) is taken to have been complied with if the certifying authority is satisfied as to that matter.
Part 8 Div 2 of the EP&A Regulation deals with construction certificates. Clause 143 of the EP&A Regulation relates to the consent authority being satisfied as to the fire protection and structural capacity of a building before it issues a construction certificate. Clause 145(1) provides:
A certifying authority must not issue a construction certificate for building work unless it is satisfied of the following matters:
(a)that the design and construction of the building … are not inconsistent with the development consent,
(b)that the proposed building … will comply with the relevant requirements of the Building Code of Australia …
Clause 146 of the EP&A Regulation provides that a construction certificate must not be issued unless the consent authority is satisfied of certain specified matters relating to provision of security, payment of monetary contributions and compliance with other conditions of the development consent before a construction certificate may be issued.
Section 80(12) of the EP&A Act provides:
If a consent authority or an accredited certifier issues a construction certificate, the construction certificate and any approved plans and specifications issued with respect to that construction certificate are taken to form part of the relevant development consent (other than for the purposes of section 96).
It is clear that the legislative scheme outlined above, all of which must be considered in relation to this issue, provides that it is the certifying authority’s opinion which is relevant to the issue of a construction certificate (see [41] - [44] in Timbarra). Provisions such as s 109F and s 109O of the EP&A Act and cl 145(1) of the EP&A Regulations emphasise the necessity for the certifying authority to be satisfied of certain matters before issuing a construction certificate. While the Applicant relied on Chambers which endorses Timbarra in broad terms the legislative framework in this case is different to that considered in Chambers. Essentially Chambers did not need to consider the legislative context in the way a different scheme was analysed in Timbarra. The legislative scheme regarding the characterisation of development considered in Chambers can be distinguished from the legislative scheme governing the issue of construction certificates. The legislative scheme considered in Chambers indicated “that it is not for a council itself to determine, as a matter of its opinion, whether it has power to grant consent to a development application or whether only the Minister has such power.” In direct contrast to this, the legislative scheme regulating the issue of construction certificates expressly provides that it is the certifying authority which must be “satisfied” of the matters contained in clause 145(1) of the EP&A Regulation. Whether the certifying authority is so satisfied is plainly a matter for its opinion. Accordingly, Chambers does not assist the Applicant in this case.
The Applicant is unsuccessful on this ground. Accordingly grounds 3 and 4 must be considered. Before considering these grounds a preliminary issue arises in relation to the onus of proof, and other related issues, in relation to these grounds.
Onus of proof; Jones v Dunkel
No evidence has been brought before the Court by either the Applicant or the Council which sheds any light on the decision making process undertaken by the relevant Council officers at the time the construction certificate under challenge was issued. The Court has simply been provided with a copy of the construction certificate signed by a Mr Briggs, a Council officer.
The Applicant sought to rely on Jones v Dunkel (1958 - 1959) 101 CLR 298 as against the Council and asked the Court to infer that calling Mr Briggs would not have assisted the Council’s case, in the absence of any explanation from the Council as to why it failed to call him as a critical witness on the Council’s decision making process in relation to the construction certificate. Accordingly, the Applicant submitted that the opinion of the Applicant’s experts was conclusive in the absence of any contrary view from the Council.
The Council argued that the onus of proof in relation to grounds 3 and 4 rests on the Applicant. Accordingly, the Council argued that it is the Applicant who bears the onus of proof to show that, on the balance of probabilities, Mr Briggs the Council officer who issued the construction certificate, did not have the requisite state of mind required by cl 145(1)(a) of the EP&A Regulation when he determined to issue the construction certificate. The Council submitted that this onus of proof cannot be met by simply calling another expert whose opinion apparently differed to that of the Council officer, Mr Briggs. The Council submitted that no adverse inference can be drawn by the Court in relation to the fact that Mr Briggs did not give evidence.
Both the Council and the Second Respondent argued there was a presumption of regularity in this case, so that in the absence of any evidence concerning the Council's decision-making processes the Court should assume the statutory functions, such as those carried out by Mr Briggs, were validly conducted. The Second Respondents referred to the doctrine of "deference" and, whilst acknowledging that this had not been fully embraced in Australia, submitted that it was a matter which should be taken into account when reviewing the exercise of administrative discretion.
Finding on onus of proof
The Applicant bears the onus of proof in these proceedings. I do not consider that the application of Jones v Dunkel is appropriate in the current proceedings. Jones v Dunkel concerned presumptions in relation to adverse findings of fact, here the matter at issue is one of opinion, albeit based on findings of fact. As Talbot J held in Terry GeorgeAndroiotakis v Woollahra Municipal Council [1998] NSWLEC 137 (30 June 1998) the submission that the rule in Jones v Dunkel applies:
…overlooks the nature of the proceedings. The question that the court has to determine does not involve deciding whether the Council is correct but merely whether it is open for the Council to decide as it did or whether it is open for the Council to decide as it did or whether it acted improperly.
The Applicant in civil proceedings of this nature cannot, in the absence of presenting any relevant evidence, overcome its onus of proof by seeking to simply rely on the Council's lack of evidence to prove its case. This is fatal to the Applicant's claim in relation to ground 4 as will become clear later in this judgment.
Nor I do not consider that there is any presumption of regularity of the construction certificate such as the Respondents argued for. Such a presumption may be applicable where there is a suggestion of error on the face of the document or there are technical irregularities concerning the making of a particular document. Here the issue is whether the Council correctly formed an opinion that the construction certificate was not inconsistent with the development consent. I do not consider the presumption of regularity arises so that this opinion is assumed to be correctly formed so that it cannot be subject to judicial review proceedings such as these. The doctrine of deference has been developed in other common law countries, including the United States and England, and provides that the courts will, upon occasion (for example, in relation to issues of national security or economic policy which the court judges that the executive is better qualified to determine than the court), defer to the opinion of the executive. In Australia the position remains, as stated by Brennan J in Attorney General of NSW v Quinn (1990) 170 CLR 1 at 35 that it is “emphatically the province and duty of the judicial department to say what the law is” or, in other words, the doctrine of deference does not apply.
The Council also argued that the scheme contained in the EP&A Act and the EP&A Regulations in relation to construction certificates emphasises:
(a)that those issuing them have expertise in building processes, given the certification procedures for certifiers in the Act; and
(b)in this case, the role of the Council as the regulator of development in this local government area.
I note that the High Court has held that a court may, in circumstances where the legality of executive administrative action taken pursuant to a decision depends upon the existence of a particular factual situation, attach a greater weight to the decision of a primary decision maker with particular knowledge which especially equips them to make the decision: Enfield at 155. In Enfield at 47, Gleeson CJ, Gummow, Kirby and Hayne JJ noted that:
The weight to be given to the opinion of the tribunal in a particular case will depend upon the circumstances. These will include such matters as the field in which the tribunal operates, the criteria for appointment of its members, the materials upon which it acts in exercising its functions and the extent to which its decisions are supported by disclosed processes of reasoning.
In the context of this case where the decision to issue a construction certificate requires an application of expertise to the issue of whether there is consistency between a development application and a construction certificate, and where the certifying authority is the Council who issued the development consent, the considerations referred to in Enfield are pertinent. I will apply this in deciding whether or not the Council's actions were manifestly unreasonable in ground 3.
Argument 3 - issuing construction certificate was manifestly unreasonable (paragraph 18A of Second Further Amended Points of Claim)
The Applicant argued that no reasonable Council could have concluded that the design and construction of the building, as depicted in the construction certificate plans (“the CC Plans”), was not inconsistent with the development consent plans (“the DC Plans”). The particular inconsistencies relied on were as follows:
(1)The DC Plans provided for the front western side balcony to be cantilevered whilst the CC Plans provide for columns 0.6 m wide to support this balcony.
(2)The DC Plans show the eastern side of the house to be 2.6 metres from the common boundary whilst the CC Plans provide for the eastern side of the house to be 2.05 metres from the common boundary.
(3)The DC Plans provide for the height of the swimming pool concourse to be RL 36.70 AHD whilst the CC Plans provide for the height to be RL 36.82 AHD.
None of these inconsistencies are disputed by the Council.
The Applicant relied on Foley v Padley (1984) 154 CLR 349 as support for its argument that while the onus is on the Applicant to establish, on the balance of probabilities, that:
(a)the decision maker failed to take into account a relevant matter; or
(b)that the opinion which was formed was one that no reasonable council could make;
the question for the Court to determine is whether the opinion was validly formed by the Council officer, Mr Briggs. The Applicant argued that this question can be the subject of independent expert evidence and that it is unnecessary for the Applicant’s case that the Council’s decision-making be considered. In this regard, the Applicant relied on the evidence of Mr Urludag, her expert town planner who stated that, in his opinion, there were two significant and numerous minor inconsistencies between the construction certificate plans and the development consent plans.
The Council argued that, in relation to a challenge made on Wednesbury grounds, a finding of fact or opinion reached by a decision making tribunal, here a certifying authority, should not be disturbed if the facts inferred by that decision maker, upon which the relevant finding or opinion is based, are capable of supporting that finding or opinion. The Council argued that once it is accepted that there can be minor inconsistencies which would lead to a conclusion that a construction certificate is not inconsistent with the development consent (as the Applicant admitted), then it is clear that minds may differ as to what is consistent and what is not consistent. Accordingly, the Council argued that the opinion of the Applicant’s expert, Mr Urludag is irrelevant, as his opinion can provide no insight into the Council’s state of mind. The Council argued that if the facts inferred by the decision maker, in this case whether or not the design and construction of the building was inconsistent with the development consent, are capable of being regarded as conforming with the statute the decision cannot be disturbed as this is not a question of law. The Second Respondent argued that on the facts before the Court there is no basis for asserting that the decision of the Council as certifying authority was manifestly unreasonable.
Finding on argument 3 - manifest unreasonableness
It is necessary to resolve the meaning of the term “inconsistent” in cl 145(1)(a) of the EP&A Regulation before the reasonableness or otherwise of the Council’s decision to grant a construction certificate can be determined. It is clear that “inconsistent” does not mean that a construction certificate must be identical to the development consent plans. Accordingly, the possibility of some variation between the terms of a development consent and the design and construction of the building is contemplated by the legislation.
The Applicant appeared to accept, based on Mr Urludag’s evidence, that the "test" of whether a matter is inconsistent is whether the variation between the terms of a development consent and the design and construction of the building is such that a s 96 modification is necessary. If it is then, according to Mr Urludag, this suggests that a construction certificate cannot (in the absence of such a s 96 modification) be issued for the development because the design and construction of the development is not consistent with the development consent plans.
It is difficult to precisely qualify the meaning of “inconsistent”. Each case will need to be decided on its own facts. A single minor difference between the construction certificate plans and the development consent plans is likely to be acceptable. Where there are a number of minor differences then the collective impact of these differences will need to be assessed to determine whether they combine to result in unacceptable inconsistency. A major difference is likely to give rise to an inconsistency. Whether a difference is major or minor and whether, in the case of a number of minor differences, the cumulative effect is a major difference will depend on the circumstances. Consideration of whether or not a s 96 modification is warranted is not of great assistance, as that threshold addresses a different statutory context. It may be that there will be a finding of inconsistency under cl 145(1)(a) before the necessity for a s 96 modification arises. I consider that provided the development consent and construction certificate plans are largely similar so that they depict substantially the same development they are not inconsistent.
Manifest unreasonableness is generally understood as referring to a decision which no rational decision maker could arrive at. The classic test for manifest unreasonableness was enunciated by Lord Greene MR in Associated Provincial Picture Houses Limited v Wednesbury Corporation (1948) 1 KB 223 at 234, namely whether the Council has “come to a conclusion so unreasonable that no reasonable authority could ever have come to it.”
It is clear that this test will not be easily met. As Mason P stated in Weal v Bathurst City Council (2000) 111 LGERA 181, at 188:
The test is stringent. When, “the ground of asserted unreasonableness is giving too much or too little weight to one consideration or another a court should proceed with caution... lest it exceed its supervisory role by reviewing the decision on its merits” (Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 at 627 per Gleeson CJ and McHugh J, quoting Mason J in Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 42). The decision must amount to an abuse of power (Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 36) or be so devoid of plausible justification that no reasonable person could have taken that course (Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 at 290). See also Minister for Urban Affairs and Planning v Rosemount Estates Pty Ltd (1996) 91 LGERA 31.
The relevant principles surrounding the test for manifest unreasonableness were set out by Lloyd J in Owen Haviland Pty Limited v North Sydney Council [1997] NSWLEC 39 (7 April 1997):
In approaching this issue it is necessary to be mindful of the fact that an appeal is limited to a question of law. It is thus necessary to have regard to the principle that even perverse or unreasonable findings of fact do not constitute errors of law; and even if the reasons whereby a court or tribunal reached its conclusions of fact were demonstrably unsound this would not amount to an error of law (Randwick Municipal Council v Manousaki (1988) 66 LGRA 330 at 333-334, per Clarke JA with whom Hope and McHugh
JJA agreed).It is also necessary to be mindful of the need for an appellate
court to proceed with caution, lest it exceed its supervisory role by reviewing the decision on its merits (Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24 at 42, per Mason J). A mere preference by an appellate court for a different result will not suffice. Wednesbury unreasonableness must not be allowed to open the gate to judicial review of the merits of a decision or action taken within power (Minister for Urban Affairs and Planning v Rosemount Estates Pty Limited (1996) 91 LGERA 31 at 42, per Sheller JA). The narrow issue of Wednesbury unreasonableness does not entitle me to form my own opinion as to the reasonableness of the decision under appeal and if I think it is unreasonable, though within the scope of the powers granted to the assessor, to declare it invalid.
The Applicant’s onus of proof cannot be discharged by the calling of an expert witness to give his opinion on the question the Council’s delegate had to consider under cl 145 of the EP&A Regulation. I do not accept that Mr Urludag’s opinion is conclusive of the matter before me as to whether the Council acted with manifest unreasonableness in issuing the construction certificate. I do, however, accept that expert opinion may assist the Court in its deliberations as to whether a decision reached by a certifying authority to the effect that the design and construction of the building was not inconsistent with the development consent was manifestly unreasonable in line with the principles outlined above.
It is the evidence of Mr Brindle, a town planner who gave evidence on behalf of the Second Respondents, that the variations between the development consent and the design and construction of the building the subject of the construction certificate are not major and that the Council as "a reasonable certifying authority" would not have come to a decision different from the delegate. In the face of this conflicting expert opinion it is necessary to analyse the evidence of the inconsistencies to see whether it was manifestly unreasonable for the Council to have issued the construction certificate. I agree with the Council that the issue is not whether I consider that the design and construction of the building was inconsistent with the development consent but whether it was reasonable in the Wednesbury sense for the Council to conclude as it did.
I will now consider each of the inconsistencies relied on by the Applicant as set out above at par 29 to determine if the Council could be said to have acted unreasonably in issuing the construction certificate.
(i) the balcony support
The first inconsistency relied on is that the development consent plans show the balcony as cantilevered with a glass balustrade whilst the construction certificate plans show the same balcony as supported by solid columns on two sides. This difference must be considered in the context of the whole development the subject of the construction certificate. I find on the evidence that the change to column support for this balcony does not change the footprint or profile of the house but does change the appearance of the Second Respondents' house on that side.
On the Second Respondents' evidence, as contained in the statement of Mr Brindle, these changes have no impact on views or the privacy of the Second Respondents' neighbours, including the Applicant. The Applicant’s argument relied heavily on the visual changes to the development. I am inclined to agree with the Applicant’s submission that the approval of this change in the construction certificate plans could not be said to be consistent with the development consent plans. However, that does not determine the matter before me because, as stated above, the relevant issue is whether it was reasonable in the Wednesbury sense for the Council to conclude as it did.
The difference between the development consent and the construction certificate is not, on its own, sufficient to warrant a finding of unreasonableness in the Wednesbury sense on the Council’s part in deciding that there was no relevant inconsistency. The Council is a local authority whose officers have expertise in the regulation of building. It issued the development consent and construction certificate and is entitled to have reached the conclusion of no inconsistency.
(ii) the distance from boundary
The Applicant argues that the distance of the Second Respondents' house from the Applicant’s boundary as shown on the development consent plans is inconsistent with that shown on the construction certificate plans. The evidence adduced by the Applicant and the Second Respondents in relation to this issue is in conflict. The Applicant argues that the development consent plans show the distance to be 2.6m whilst the distance of 2.05m is written on the construction certificate plans. The dimension of 2.6m relied on by the Applicant was not expressly shown on the development consent plans but was calculated using the scale of 1:1000 shown on the plan.
The Second Respondents' evidence was that the scale of the development consent plans was such that the development consent plans showed the setback from the boundary to be 2.6m on the ground floor, 2.5m on the upper floor and 2.4m on the sections and elevations (Drawing AO3). The surveyor called by the Second Respondents gave evidence that the house is actually built at a distance of 2.31m from the Applicant’s boundary.
Taking the Applicant's case at its highest, the difference between the plans amounts to 0.55m. Taken on its own, and bearing in mind the fact that the development consent plans were not scaled, I do not consider that the Council’s satisfaction that such a difference was not inconsistent with the terms of the development consent was unreasonable in the context of this development. This is particularly the case where the Mosman Residential DCP requires a setback of 1500mm.
(iii) the height of the swimming pool
The third inconsistency alleged is the difference in height of the swimming pool concourse between the development consent plans (36.70 AHD) and the construction certificate plans (36.82 AHD) which difference amounts to 12cm. The Council argues that this difference is a de minimis matter in a complex building project where the Council was entitled to form an opinion that there was consistency between the development consent and the construction certificate. Mr Brindle, who gave evidence for the Second Respondents, was of the view that this difference was minor in nature and resulted in no adverse impacts on amenity. Mr Urludag's oral evidence was also that this was a minor deviation. Once again, on its own, this matter would not justify a conclusion that the Council acted unreasonably in issuing the construction certificate.
The cumulative effect of the above differences
It is also necessary to consider whether a reasonable Council would have considered that the cumulative effect of the three differences between the development consent and the construction certificate outlined above was so great as to give rise to inconsistency. Considering the Council's role and expertise in this area, and mindful of the approach in Enfield as set out above, I do not consider the Council's conclusion that these were not inconsistent is so unreasonable that no reasonable authority could have arrived at that conclusion in the context of this development application.
In light of my findings above, I do not consider that the construction certificate should be declared invalid.
Argument 4 - no real consideration by the Council of the inconsistency between the development consent and construction certificate (par 18B of Second Further Amended Points of Claim)
The Applicant argued that, given the inconsistencies detailed above and relying on the reasoning in Hale v Parramatta City Council (1982) 47 LGRA 269, it is clear that the Council gave no real consideration to the inconsistency between the development consent and the construction certificate plans and consequently was in breach of the EP&A Act in issuing the construction certificate.
The Council submitted that the Applicant bears the onus of proof in relation to this argument and that she has not discharged this onus. The Council submitted that, in order to succeed on this ground, the Applicant must show that the decision maker never turned his mind to the substantive issues and that the Applicant has raised no evidence that this was so.
Finding on argument 4
I agree with the Council's submission that the Applicant has not discharged her onus of proof on this ground. In the absence of any evidence as to the Council’s decision-making process, the Court is simply unable to determine this issue. It is not self-evident that the inconsistencies between the development consent plans and the construction certificate gives rise to an inference that there was no consideration by the Council of these inconsistencies.
Development for which no consent has been obtained
The Applicant alleges that the swimming pool and house have not been built in accordance with either the development consent or the construction certificate in relation to eight matters as follows:
(1)The height of the swimming pool concourse is RL 36.89 AHD.
The wet edge of the swimming pool has not been approved.
The Second Respondents state that there is no wet edge and the Applicant did not ultimately rely on this matter.
(3)The foundations of the swimming pool are constructed to the boundary.
(4)No shutters have been installed on the eastern side of the front eastern balcony as provided for in the construction certificate plans.
It was the Second Respondents’ evidence that the shutters referred to in (4) would be fixed as soon as these proceedings were resolved.
(5)The eastern end of the front eastern balcony has been extended to the eastern wall of the house whilst it is recessed 0.9 metres on the construction certificate plans.
(6)The eaves and roofline on the southern side have been extended beyond the construction certificate plans.
(7)The fascia boards on the eastern side have been altered from slimline effect to form a canopy over the front balcony.
(8)No proper planting has been planted in accordance with the development application.
The Second Respondents admit matters 1, 4, 5, 6 and 7. They dispute matters 3 and 8 which concern the swimming pool and the planting on the boundary fence next to the pool. The Applicant seeks relief in relation to matters 1, 3 4, 5, 7 and 8. The Applicant does not seek relief in relation to matter 6. The essential matter to be resolved in relation to the six illegal works, four of which are admitted, is whether the relief sought by the Applicant ought be granted, namely whether a declaration of invalidity and an order that the Second Respondents carry out demolition and further work ought to be made. The conflicting evidence and submissions in relation to matters 3 and 8 can also be considered in that context.
Relief sought by the Applicant
In addition to a declaration that illegal works have been carried out the Applicant seeks orders requiring the Second Respondents carry out the following works:
(a)Demolish the front western balcony on the first floor.
This relates to the construction certificate argument which I have already dealt with. As I have not declared the construction certificate invalid, this relief will not be granted.
(b)The front eastern balcony be altered and constructed in accordance with the construction certificate plans.
This relates to matters 4, 5 and 7 as detailed above in par 53.
(c)The swimming pool be demolished or alternatively, the structures between the 350mm setback from the swimming pool and the eastern boundary be demolished and replaced with landscaping and the height of the swimming pool concourse be reduced to RL 36.70 AHD.
This relates to the construction certificate argument and matters 1 (pool height), 3 (pool foundation) and 8 (proper planting) as detailed above. I have not declared the construction certificate invalid so that relief in relation to the third inconsistency alleged in par 47 concerning the height of the swimming pool of RL 36.82 AHD is not available to the Applicant.
Exercise of discretion to grant relief for (b) eastern balcony and (c) swimming pool
The Second Respondents have not built matters 1 (pool height), 4 (eastern balcony), 5 (eastern balcony) and 7 (eastern balcony) in accordance with the development consent or the construction certificate. Mr Wright, one of the Second Respondents, gave frank evidence in that regard. The Court has a wide discretion as to whether or not to grant relief; see Warringah Shire Council v Sedevcic (1986) 63 LGRA 361; 10 NSWLR 335. Not complying with the development consent and construction certificate is a serious matter. The development in this case is effectively completed apart from the balcony shutters referred to in matter 4 so that an order for demolition and rebuilding necessarily requires the expenditure of time and money by the Second Respondents.
The Applicant’s case in relation to the adverse impacts of overshadowing and loss of privacy on the Applicant’s property does not differentiate between the impacts due to the Second Respondents' doing:
(a)the building carried out pursuant to the development consent;
(b)the building carried out in accordance with the construction certificate; or
(c)the building for which there is no development consent or construction certificate approval (matters 1 to 8).
It is clear from the evidence that the great majority of the impact the Applicant experiences is because of the building identified in (a) and (b) rather than (c). There is no evidence the Court can assess to determine if the Applicant suffers adverse impact as a result of the illegal building work in matters 1, 5 and 7 over and above that already alleged to occur in relation to the overall development.
(b) the eastern balcony (matters 4, 5 and 7)
In relation to matter 4, the Second Respondents have stated that they will affix shutters when this matter has been resolved. The installation of these shutters will deal with the privacy impacts which the Applicant is concerned about in relation to this balcony.
In relation to matters 5 and 7 concerning the eastern balcony, the evidence given by Mr Brindle, the town planner retained on behalf of the Second Respondents, in his affidavit of 21 July 2003 is that the eastern side of the balcony has been extended approximately 700mm from the point identified in the construction certificate in order to be in line with the eastern wall of the house. Mr Brindle’s evidence is that this change does not result in any alteration to the roof line. In relation to the alteration to the fascia boards, both the development consent and the construction certificate provide for a canopy over the eastern side balcony in any event. According to Mr Brindle, the changes create no additional overshadowing, add very little to the bulk of the dwelling and the dimensions of the balcony are in scale with the western front balcony, that is, there is no significant environmental impact.
Mrs Lesnewski’s evidence, as contained in her affidavit of 25 June 2003, is that the extension of the balcony so that it is flush with the eastern wall of the house and the alteration of the fascia boards has added to overshadowing, loss of sunlight and further added to the bulk and scale of the building.
Finding on (b) the eastern balcony
Failing to comply with the relevant approvals granted by the Council is serious. I consider a declaration that work has been carried out without consent ought be made in relation to matters 4, 5 and 7. A decision by the Court to refrain from requiring the correction of illegal work needs to be carefully considered for fear that the Court will be seen to condone such behaviour. An order requiring the Second Respondents to install the shutters on the eastern balcony (matter 4) is clearly warranted and is not likely to be opposed by the Second Respondents given the evidence of Mr Wright that he intends, in any event, to install these once this matter is resolved. The issue then remains as to whether the relief sought in relation to matters 5 and 7 ought be made.
A number of factors must therefore be considered in deciding whether relief ought be granted in addition to the making of declaratory orders. Briefly, these factors include:
(1) whether the breach is purely technical;
(2) whether the Applicant has delayed in bringing its action;
(3) whether the breach may be shown to have a beneficial effect on the environment or amenity of the locality;
(4) that the restraint sought is the enforcement of a public statute by which there is a public interest in the orderly development and use of the environment;
(5) that the obvious intention of the EP&A Act is that those concerned in the development and use of the environment will comply with the legislation; and
(6) that an unjust result may be avoided by postponing the effect of injunctive relief. Warringah Shire Council v Sedevcic per Kirby P at p 365-366
Further, in ACR Trading Pty Limited & Anor v Fat-sel Pty Limited & Anor (1987) 11 NSWLR 67 Kirby P said (at p 82):
… it is important to appreciate the wide scope and purpose of the discretion conferred by s 124 of the [EP&A] Act. Clearly, it is not a warrant to set at nought the complicated and sensitively balanced provisions of the legislation, substituting for the operation of the law laid down by Parliament, the personal opinions of the judge hearing the case. On the other hand, it would be equally erroneous to ignore the discretion or to give it an unduly restricted operation. It is just as much part of the structure and scheme of the Act, for the enforcement of planning law, as are the other parts. … the discretion conferred by s 124(1) … is a mollifying one. It permits, in appropriate cases, the refusal of injunctive relief where to grant such relief would work such an injustice as to be disproportionate to the ends secured by enforcement of the legislation including by injunction.
I have a wide discretion in deciding whether relief should be granted. While the Applicant is concerned generally with the impact on her house, it is not clear from her evidence that there is any impact on her property due solely to the illegal works in matters 5 and 7. As already noted there is no evidence apart from Mrs Lesnewski's opinion proffered to support her statement in relation to overshadowing and loss of sunlight. Nor is it apparent that these changes have added to the bulk and scale of the building beyond that already enabled by the development consent and construction certificate to any significant degree. The Second Respondents have incurred expense in building matters 5 and 7 and will incur further expense in removing them. I consider these breaches are technical in nature and have minimal if any adverse environmental impact. I do not think granting the relief sought in relation to matters 5 and 7 is appropriate.
(c) swimming pool (matters 1, 3 and 8)
The issue that is of most concern to the Applicant is the impact on the amenity of her home, particularly the kitchen area, as a result of the height of the Second Respondents’ swimming pool and its close proximity to the boundary between the Applicant and the Second Respondents.
Matter 1 concerns the increased height of the swimming pool from RL 36.82 AHD to RL 36.89 AHD. The construction certificate specifies RL 36.82 AHD. The Second Respondents' experts state that the pool concourse has been constructed so that it differs by 3cm from the height shown on the construction certificate. The Applicant’s evidence is that there is a 5cm difference. The pool is now fully constructed. It is not apparent that the Applicant is adversely affected by the additional 3cm (on the Second Respondents’ case) or 5cm (on the Applicant’s case) to any extent greater than the impact already resulting from the pool as constructed under the construction certificate. Given the very minimal variation between the construction certificate and the swimming pool height as built, I do not think a declaration that this work is illegal is warranted. To the extent there is any illegality it is negligible. Even if I had made a declaration I do not consider that an order for demolition of the pool ought be made for the same reasons as given in par 65.
In relation to items 3 and 8, which are related, the Applicant's evidence as given by Mr Crane and the Applicant states that the foundations of the swimming pool have been constructed to within 100mm of the boundary fence and that this prevents soft planting. Soft planting is, as the Court understands it, planting in deep soil, as in a garden bed. The area in question is a 3 - 4m strip along the boundary fence where the Second Respondents' balancing tank is located, very close to the boundary with the Applicant. This tank is not now intended to be used. A number of potted palms have been placed on the balancing tank. This area is located opposite the Applicant’s kitchen window. The Applicant’s evidence is that this screen of potted plants is inadequate to shield the people using the Second Respondents' pool from looking into the Applicant’s kitchen. Mr Brindle, who gave evidence for the Second Respondents, states that the balancing tank is well below the level of the boundary fence and is not visible from the Applicant’s property. The tank supports a number of potted palms which are intended to provide boundary landscaping and to assist in screening views to the adjoining property. Mr Brindle considers that these plants provide an effective screen.
The Applicant’s view, as reflected in matter 8, is that the potted palms do not satisfy the planting required by the development consent. The only evidence that the Court has in relation to the planting on this boundary is that the development consent plan specifies plants in this area (Ex B, plan AO2). The Court does not have before it any evidence of what “plants” is intended to mean in this context, in other words, whether soft planting is required or whether plants in pots are sufficient. There is evidence in photographs (exhibit 1) of the potted plants in this area.
Finding on (c) swimming pool
The pool foundation (matter 3) and proper planting (matter 8) are closely related. There is no evidence before me of any requirements in the development consent in relation to the location of the pool foundations. The development consent plan before me shows the location of the surface of the pool and surrounds in relation to the Applicant's house. On the evidence before me I am unable to find that the building of the pool foundations, in terms of the balancing tank, is done without consent.
Further, there is no evidence before me of what is intended by the word "plants" in the development consent plan. I do not think it can be said that the plants in pots are not in conformity with the development consent. They are located in the appropriate location and appear to provide a screen. While I understand it is the Applicant's case that the screen is inadequate, I do not think it can be said that the plants in pots are in breach of the development consent plans. I do not consider the Applicant has proved that illegal building work has taken place in relation to matters (3) and (8) concerning the swimming pool. Accordingly, no relief is granted in relation to these matters.
One further matter to consider for completeness is whether a declaration in relation to matter 6 (eaves on southern side) ought be made. As already noted, no relief in relation to this matter is sought. According to the Applicant 0.6m wide eaves have been built when the construction certificate plans showed no eaves were to be built. The Second Respondents' evidence through Mr Brindle is that the eaves built were of a standard size to protect windows on the south side. A declaration of illegality for this matter does not appear warranted given that no relief is sought and the provision of appropriately sized eaves is desirable to protect the windows from the weather.
Final orders
There is illegal work carried out by the Second Respondents, which is admitted, in relation to matters 4, 5 and 7 being work not authorised by the development consent or the construction certificate. I will make a declaration that work in relation to these matters has been done without consent under the EP&A Act. In terms of consequential relief, I will order that the shutters required by the construction certificate (matter 4) be installed within three months of today's date. I reserve my decision on the issue of costs.
Orders
The Court declares that the Second Respondents have carried out works without consent pursuant to the Environmental Planning and Assessment Act 1979 in that:
(a)no shutters have been installed on the eastern side of the front eastern balcony as provided for in the construction certificate plans;
(b)the eastern end of the front eastern balcony has been extended to the eastern wall of the house whilst it is recessed 0.9 metres on the construction certificate plans;
(c) the fascia boards on the eastern side have been altered from slimline effect to form a canopy over the front balcony.
The Court orders the Second Respondents to install shutters on the eastern side of the front eastern balcony as provided for in the construction certificate plans in Exhibit C within 3 months of the date of this judgment.
Costs are reserved.
The exhibits except for Exhibit C are to be returned.
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