Paul Anthony Murace v Northern Beaches Council

[2017] NSWLEC 1121

Land and Environment Court

New South Wales

Medium Neutral Citation:	Paul Anthony Murace v Northern Beaches Council [2017] NSWLEC 1121
Hearing dates:	14 December 2017
Date of orders:	10 March 2017
Decision date:	10 March 2017
Jurisdiction:	Class 1
Before:	Martin SC
Decision:	The orders of the Court are: (1) The appeal is dismissed; (2) Order No 2& 12 under s 121B of the Environmental Planning and Assessment Act 1979 issued by Pittwater Council in respect of premises described as Lot 13 DP 234316, 180 Warriewood Road, Warriewood, to demolish a building and restore premises, is upheld, save that the dates of compliance (referred to in paragraphs 3 and 4 of Schedule 1 of that Order) are to be within sixty and seventy days, respectively, of the date of this judgment; (3) For the avoidance of doubt, the demolition ordered is to include that part of the Structure described as the inspection pit, which area is also to be made good after such demolition; and (4) The Exhibits, other than 1 and A, are returned.
Catchwords:	ENFORCEMENT ORDER – appeal against Order issued by Council – unauthorised concrete slab and brick walls – Order to demolish and restore lawn - minimum landscape requirements – character of the locality - discretion in respect of provisions of DCP
Legislation Cited:	Environmental Planning and Assessment Act 1979 s 121B, 121ZK Land and Environment Court Act 1979 s 34 Local Government (Council Amalgamations) Proclamation 2016 Pittwater Local Environment Plan 2014 Pittwater 21 Development Control Plan 2014 State Environmental Planning Policy (Exempt and Complying Development Codes) 2008
Category:	Principal judgment
Parties:	Counsel Ms R. Mozejko (Solicitor) (Applicant) Ms J Reid (Respondent) Solicitors McCabes Lawyers Pty Ltd (Applicant) King & Wood Mallesons (Respondent)
Representation:	Counsel Ms R. Mozejko (Solicitor) (Applicant) Ms J Reid (Respondent) Solicitors McCabes Lawyers Pty Ltd (Applicant) King & Wood Mallesons (Respondent)
File Number(s):	2016/160512
Publication restriction:	No

JUDGMENT

1. Between June and September 2015 Mr Paul Murace built a structure comprised of a concrete slab and besser block walls (the Structure) within the front setback of his property at 180 Warriewood Road, Warriewood (the Site). The Structure was to be a workshop and carport. He did not have development consent to do so. When asked about it after a complaint had been made, he informed the Northern Beaches Council (the Council) that he had been operating under the misapprehension that the structure was exempt under the State Environment Planning Policy (Exempt and Complying Development Codes) (SEPP), meaning that development consent was not required. This was not the case.

2. Following issue by the Council of a Notice of Proposed Order and after considering Mr Murace’s submissions, on 9 March 2016 the Council issued Orders 2 and 12 under s 121 B of the Environmental Planning and Assessment Act 1979 (the EPA Act). Those orders required, amongst other things, the demolition of the unauthorised concrete slab and cement block walls. It is against this Order that Mr Murace brings his appeal.

3. The relief originally sought by Mr Murace was that the Court revoke the Council’s order.

4. For the reasons set out below, this appeal fails, and the Order issued by the Council stands (with some minor modifications).

The Appeal

5. This appeal was brought against an Order of Council made under s 121B of the EPA Act. That section is reproduced below:

121B Orders that may be given by consent authority or by Minister etc

(1) An order may be given to a person by:

(aa) …

(a) a council, or

(b) …

to do or to refrain from doing a thing specified in the following Table if the circumstances specified opposite it in Column 2 of the Table exist and the person comes within the description opposite it in Column 3 of the Table.

The relevant orders are Order 2 and Order 12, extracted below:

Column 1	Column 2	Column 3
To do what?	In what circumstance?	To whom?
2.	demolish or remove a building	(a) Building is erected without prior development consent of consent authority in a case where prior development consent is required or is erected without prior development consent of a consent authority and a prior construction certificate in a case where both prior development consent and a prior construction certificate are required(b) Building is or is likely to become a danger to the public(c) Building is so dilapidated as to be prejudicial to its occupants or to persons or property in the neighbourhood(d) Building is erected without prior approval of council, in a case where prior approval was required under the Local Government Act 1919 or the Local Government Act 1993when the erection of the building commenced	Owner of building
12.	To do such things as are specified in the order to restore premises to the condition in which they were before building was unlawfully erected or before work was unlawfully carried out	(a) Building has been unlawfully erected, and an order No 2 has been given requiring the building to be demolished or removed(b) Work has been unlawfully carried out	The owner of the premises, anyperson entitled to act on adevelopment consent orcomplying development certificate or any person acting otherwise than in compliance with a development consent orcomplying development certificate

6. In the event, the Order that was issued by the Council requires Mr Murace to do the following:

1. Prior to the commencement of any demolition works, install siltation control measures to prevent any materials from leaving the site.

2. Works are to be undertaken between specified hours.

3. Within 60 days of the date of the Order, demolish the unauthorised concrete slab and cement block walls located within the front setback of the property.

4. Provide turf to restore the lawn to the disturbed area: Exhibit A – Council Order dated 9 March 2016.

7. The appeal right in respect of such an order is granted by s 121ZK of the EPA Act. That section also sets out the powers of the Court upon the hearing of the appeal, and provides relevantly as follows:

Appeals concerning orders

121ZK Appeals concerning orders

(1) A person on whom an order is served may appeal against the order to the Court.

(2) …

(3) …

(4) On hearing an appeal, the Court may:

(a) revoke the order, or

(b) modify the order, or

(c) substitute for the order any other order that the person who gave the order could have made, or

(d) find that the order is sufficiently complied with, or

(e) make such order with respect to compliance with the order as the Court thinks fit, or

(f) make any other order with respect to the order as the Court thinks fit.

8. There is no issue in this proceeding with respect to the issuing of the Order, or the manner in which the appeal has been brought.

9. In the course of the hearing, the Applicant sought to amend, or further particularise, the Order he sought from the Court. That Order would allow retention of the slab, with removal of the besser blocks. The fate of this application is discussed further below.

The Site and Locality

10. The Site lies within the R2 – Low Density Residential zone of the Pittwater Local Environmental Plan 2014 (the LEP). It is a rectangular shape (outlined in red in the aerial photograph below) and has an area of almost 697m2, with a street frontage of 18.3 metres to Warriewood Road. On the southeast side of the boundary lies a public access handle from Warriewood Road to the Public Reserve at the rear of the Site. This reserve is zoned RE1 – Public Recreation under the LEP. The Site itself falls from the rear boundary to the Warriewood Road frontage. The locality has a mix of zonings, including low and medium density residential, environmental living, public recreation and light industrial.

Statutory Controls, Policies and Guidelines

11. The LEP and Pittwater 21 Development Control Plan 2014 (the DCP) are the relevant local planning controls. In addition, the Building Code of Australia is relevant to the standard of construction for the slab and walls (although it did not feature in argument), while the SEPP (Exempt and Complying Development Codes) 2008 is relevant to this dispute.

Pittwater Local Environmental Plan 2014

12. The objectives of Zone R2 Low Density Residential are, relevantly:

● To provide for the housing needs of the community within a low density residential environment

● ….

● To provide for a limited range of other land uses of a low intensity and scale, compatible with surrounding land uses.

● “Landscaped area” is defined to mean “a part of a site used for growing plants, grasses and trees, but does not include any building, structure or hard paved area”.

Under the LEP, dwelling houses are permitted with consent.

Pittwater 21 Development Control Plan 2014

13. The DCP deals with the Warriewood Locality. Pt D14.1 is concerned with Character as viewed from a public place. The Outcomes include:

● To achieve the desired future character of the Locality

●The visual impact of the built form is secondary to landscaping and vegetation…

● Buildings do not dominate the streetscape and are at “human scale”. Within residential areas, buildings give the appearance of being two-storey maximum.

● To enhance the bushland vista of Pittwater as the predominant feature of the landscape with built form, including parking structures, being a secondary component.

● To ensure that development adjacent to public domain elements such as waterways, streets, parks, bushland reserves and other public open spaces, compliments the landscape character, public use and enjoyment of that land.

14. The Controls to achieve the Outcomes include:

● Garages, carports and other parking structures including hardstand areas must not be the dominant site feature when viewed from a public place. Parking structures should be located behind the front building line, preferably set back further than the primary building, and be no greater in width than 50% of the lot frontage, or 7.5 metres, whichever is the lesser.

● Landscaping is to be integrated with the building design to screen the visual impact of the built form. In residential areas, buildings are to give the appearance of being secondary to landscaping and vegetation.

15. There are no variations noted in this Part.

16. Part D14.12 is concerned with Landscaped Area. The Outcomes include:

● Achieve the desired future character of the Locality

● The bulk and scale of the built form is minimised

● Vegetation is retained and enhanced to visually reduce the built form

● To preserve and enhance the rural and bushland character of the area

● Soft surface is maximised to provide for infiltration of water to the water table, minimise run-off and assist with stormwater management.

17. The Controls to achieve these Outcomes are:

● The total landscaped area on land zoned R2 Low Density Residential … shall be 50% of the site area.

● The use of porous materials and finishes is encouraged where appropriate.

● Any alterations or additions to an existing dwelling shall provide a minimum 50% of the site area as landscaped area.

18. There is a variation provision allowing some flexibility within these landscape controls, including a “bonus” of up to 6% of the total site area to be provided as impervious landscape treatments providing these areas are for outdoor recreation purposes only: DCP D14.12 at p.364.

19. Internal Driveways are dealt with at B6.2 of the DCP. The Outcomes are safe and convenient access; reduce visual impact of driveways; pedestrian safety; an effective road drainage system; maximise the retention of trees and native vegetation; reduce contaminate run-off from driveways.

20. The Controls require that an internal driveway must be provided for in any new development; development where additional car parking spaces and/or garages are required by Council’s plans or policies; development where additional car parking spaces are proposed.

History of the Dispute

21. After receiving complaints from members of the public, Council inspections on 9 October 2015 revealed that Mr Murace had constructed a concrete slab measuring approximately 7 m by 7 m in the front setback attached to the south/west elevation of the existing garage. Cement block walls with openings had been constructed on top of the concrete slab to an approximate height of 2.4 m. The roofing had not been constructed. No development consent had been issued for the construction of the proposed workshop and carport, as required by the LEP. However, Development Consent No 663/10 had been issued by the Council for alterations to the dwelling on 14 March 2011 (Exhibit 5) (the 2011 Development Consent). Those alterations included construction of a garage and storage/workshop area. The building setback line is also clearly marked on the approved plans attached to the 2011 Development Consent.

22. On 15 October 2015 the Council furnished Mr Murace with a Notice of a Proposed Order No. 2 & 12 under s 121 B of the EPA Act. It granted an extension for Mr Murace to make submissions as to why the Order ought not be issued. Mr Murace responded in a letter to the Council dated 28 December 2015, which response the Council received on 6 January 2016.

23. A further inspection by Council on 28 January 2016 revealed that while no further works had occurred (in compliance with a Council order issued in October 2015), the unauthorised concrete slab and cement block walls remained in place. Council then proceeded with the issue of an order under section 121 B of the EPA Act on 9 March 2016: Exhibit A.

24. Following the issuing of the Order, Mr Murace filed this appeal on 5 April 2016. There then followed a period of discussion and negotiation between the parties, including an attempted conciliation under section 34 of the Land and Environment Court Act 1979. That conciliation did not resolve the matter.

25. Prior to the hearing but after the conciliation, Mr Murace demolished part of the structure – three quarters of the concrete slab and half of the besser block wall on the northern side of the Site: Statement of Mr Toro, Mr Toro, Council’s Development Compliance Officer: Exhibit 3 at [2.4]. An element which remained, contained within the remaining portion of the slab located closest to Warriewood Road, is an inspection pit, described by Mr Murace as being some 900 mm in depth. The inspection pit is described by Mr Toro as a man-hole to allow a person to access the underside of a car body whilst it is parked on a concrete slab: Exhibit 3 at [2.7].

26. In an attempt to regularise the situation, a building certificate application was lodged with the Council on 2 September 2016: Exhibit 4. That application was supported by engineering drawings which indicated that part of the slab and block walls were to be demolished, and a single carport built. However, in that building certificate application there was no drawing of the inspection pit: Exhibit A, Drawing S.01. In addition, the Statement of Environment Effects (SEE) prepared to support the application stated it was in respect of a single carport with minimum bulk and scale. The remaining structure around the proposed carport is to be demolished. The SEE relied upon the Applicant’s assertion that he had been given incorrect advice as to whether or not development consent was required for the structure. According to the Applicant, the advice he was given was that construction of a small shed and carport in the front yard of his property would be Exempt Development under the SEPP, and therefore permissible, subject to meeting relevant provisions: Exhibit A, Statement of Environmental Effects, at p.4. Mr Murace has subsequently been unable to provide any evidence as to the source of this advice.

27. The building certificate application was refused by the Council on 7 November 2016 for the following reasons: “the carport site coverage reduces the landscape area to 43% of the area of the allotment, being less than the 50% minimum required under Part D14.12 of Pittwater 21 DCP”: Exhibit 4. In other words, even if the area covered by the slab were reduced to a single carport size, as appeared to be the case in the supporting drawings, that would still not be able to satisfy the landscape requirements of the Council, which are discussed further below.

Evidence

28. A Statement of Evidence from Mr Robinson Toro, a Development Compliance Office employed by the Council, was tendered. Mr Toro also gave evidence at the hearing.

29. Mr Murace did not put any material into evidence. While it is not necessary for Mr Murace to meet the civil standard to prove his case on the balance of probabilities, nonetheless he carries a persuasive burden. It is for him to argue his case and to say why the application he has brought, should succeed. There is a strong line of authority that it is a matter for the Applicant to satisfy the Court as to why the application (or in this case, appeal) should be granted. This is difficult for him to achieve in the absence of evidence.

Site Inspection   

30. A site inspection was held on 14 December 2016 on the day of the hearing. It was apparent that part of the slab had been removed; and that an inspection pit (partially filled with rubble) remained, as did part of the besser block wall. The Court’s attention was drawn to the existence of a concrete driveway running from Warriewood Road into the garage beneath the house. There was soft landscape (dirt) between the edge of the driveway and the location of the slab part of the structure.

31. During the inspection, and not before, Mr Murace submitted through his lawyer that if he were entitled to keep the slab and inspection pit, these could be pressed into service as a water tank to hold stormwater runoff from the roof.

32. The Council confirmed that it has not received a development application for such a use. Absent such an application, this proposal can play no part in these proceedings.

Issues

33. Council’s contentions regarding this matter are largely concerned with visual impact, and are set out in its Statement of Facts and Contentions filed with the Court on 25 May 2016: Exhibit 1, and are as follows:

1. The Structure (the slab and three sides of besser block walls) was erected without prior development consent of Council having been sought or granted, as required at all times under the EPA Act and the LEP.

2. The Structure does not satisfy the requirements for Exempt Development under Subdivision 10, Carports or Subdivision 14, Driveways and hard stand spaces of the SEPP. Further, garages are not listed as exempt development under the Code.

3. The Respondent is not satisfied that the conditions of the Development Consent with respect to minimum landscaping would be met were the Structure to remain.

4. The Respondent is not satisfied that the conditions of the Development Consent with respect to tree retention have been complied with, or would be able to be complied with were the Structure to remain.

34. The Applicant’s Reply to the matters contended by the Council, filed with the Court on 10 June 2016, effectively repeat the arguments made in his letter to the Council on 28 December 2015 with respect to the Applicant’s misapprehension regarding the need for Development Consent, due to the provision of incorrect advice from an unnamed person in the Department of Planning and Environment. The Applicant also requested the Council to exercise discretion in his favour in its decision; contended that the Council had rigidly applied policy without properly considering the circumstances of the case; and argued that the visual impact concerns raised by the Council could be remedied, as could the requirements with respect to minimum landscaping requirements.

35. At the hearing, it was common ground between the parties that the reason the structure is not exempt is because it is located within the front setback of the building. I am satisfied that the Structure does not fall within the definition of Exempt Development. The Applicant also conceded that the structure is impermissible without consent. Accordingly, it is not necessary for me to consider compliance with the Code, nor will I deal with the fourth contention as it was not pressed by the Council.

34. The matters in contention are therefore those with respect to the requirements to seek development consent, and the achievement of minimum landscaping outcomes.

Applicant’s Arguments

37. The Applicant made the following submissions:

-the Applicant has taken steps to remove some of the structure;

-retention of half the slab in the context of the area is not a serious breach of the DCP;

-moreover, there is substantial vegetation along the front of the property which almost blocks the view of the slabbed area, and a visual barrier is provided, thus satisfying the Outcome of the built form being secondary to vegetation, as set out in D14.1 at p.352;

-the concrete slab does not dominate in relation to the dwelling; and porous material was being used elsewhere on the Site;

- with respect to D14.1 the language regarding the location of the parking structure is not mandatory, as the language states that the parking structure should, not must, be located behind the front building line.;

- implementation of the Controls contained in the DCP is discretionary, and the Court ought to exercise that discretion in favour of the Applicant;

- the power of the Court under s.121ZK of the EPA Act allows the Court to order the retention of the slab and demolition of the besser bricks, given that there is considerable landscaping around the property compared with elsewhere in the locality and retention of the slab will not change the character of the locality.

38. With respect to the use by the Applicant of non-porous material in the driveway, this was necessary, says the Applicant, to provide safety due to the gradient of the driveway. Moreover, it was submitted that the Applicant was concerned that the disturbed material would run downhill into the street, with the risk that the Applicant would be concerned about sediment pollution.

39. The Applicant also argued that the requirements in the DCP with respect to internal driveways was unclear, and therefore could not be said to apply. In particular, The Applicant also contended that the wording in the DCP is that parking structures “should not be located behind the front building line”. The language is therefore not mandatory.

40. The Applicant concluded by saying that in the context of the surrounding area, this is a small area where the landscaping requirement has not been met. A commonsense approach allows for retention of the slab, which retention would not change the character of the locality. The Order sought is thus to retain the slab and remove the besser blocks, which is within the Court’s power under s.121ZK of the EPA Act.

Council’s Arguments

41. The Council is not content with the proposal by the Applicant to demolish the wall and retain the slab. Moreover, the Council’s submitted that if there were an application to seek a substituted order, the scope of that Order would need to be understood by the Court. There is no additional information before the Court in this regard.

42. The Council placed reliance upon the relevant planning controls which are set out in this judgment above. The Outcomes with respect to Landscaping are unable to be met if the Structure is retained, even without the besser block walls. The flexibility provided in the Controls is not available in this instance.

43. The percentage of landscaping required for the Site is more difficult to achieve, Council says, because the driveway has been built from concrete, which was not a condition of consent. In answer to a question as to whether the Council had taken any enforcement action with respect to this, Ms Reid responded that the Council had assessed this and decided that it did not warrant the taking of enforcement action. However, a consequence of the Applicant’s choice of construction material for the driveway is that a greater portion of the Site is concreted, and thus impervious.

44. Evidence was provided by Mr Toro, that with part of the Structure demolished – approximately half the concrete slab by his observation- the landscaped area of the Site is 40.1% of 279.7 m2. The shortfall is therefore 9.9%.

45. Mr Toro’s further evidence was that an internal driveway must be provided for where additional car parking spaces and/or garages are proposed. If the slab is to be used for further parking, there will need to be additional hardstand area required (to join the slab to the existing driveway) and thus further erode the amount of landscaped area. The Plan submitted as part of the building certificate application (Exhibit 4) “fails to accurately reflect the correct percentage of hard surface by not providing additional driveway required for vehicular access to the concrete slab”: Exhibit 3 at [3.6]. In other words, the shortfall is likely to exceed 9.9% due to the exclusion of the additional hardstand paved area from the calculation.

46. The Council also contends that the Structure should be demolished because of non-compliance caused by the dominance of the carport, contrary to the provisions of D14.1. The location of the Structure within the front setback makes its presence more obvious. This produces not only a visual impact, but also removes the ability of porous surfaces to manage stormwater. Turning the driveway into non-porous surface has had the effect of reducing the available porous surface on the Site. This lost landscaped area would otherwise be available to minimise runoff and assist with stormwater disposal.

47. The desired Outcome is enhancement of the bushland area in the locality. No enhancement is possible if the slab is retained.

48. Council’s controls are clear and are designed to seek balance between the built form and the landscaped area. Retention of the slab will require additional driveway to be built, and have the effect of further eroding the landscaped area.

49. These proceedings have been on foot since April 2016, and the Applicant has had ample time to prepare evidence as to how the area might differently operate.

Findings

50. I give considerable weight to the terms of the DCP (consistent with Zhang v Canterbury City Council [2001] NSWCA 167 (2001) 115 LGERA 373), not simply because it is one of the relevant planning instruments, but because it has provided in great detail both what the planning Outcomes are for the Site, as well as the Controls which are to be applied to achieve this. It has particular Outcomes identified with respect to each of its localities. Moreover, this is a recent document, expressing the current thinking of the Council.

51. I find that the presence of the Structure does not satisfy the requirements of the DCP with respect to character and landscaping. It will never be able to satisfy them, even if the Structure is modified (as was proposed in the building certificate application, which Council declined to grant). There is no modification possible which will result in its ability to achieve compliance. Were the Court to accept the submission from the Applicant to modify the Order to allow the slab to remain, there would still be non-compliance with the requirement for 50% minimum landscape area. Put simply, echoing the words of the Council’s Compliance Development Officer: “the part of the Structure that remains does not comply with the relevant landscaping controls and is not able to with modification”.

52. While it was submitted for the Applicant that the retention of the slab would be a commonsense approach, particularly given the extent of existing landscaping elsewhere on the Site, I cannot agree with this proposition. The submission was also made that a small deviation will not change the character of the locality. I do not find this to be either persuasive or correct in this instance – it is in fact the sum of incremental steps which contribute to the overall result, being in this case the locality’s character.

53. The DCP already contains in its terms a 6% bonus variation for impervious landscape treatments. That bonus is only available if the Outcomes can otherwise be achieved, which is not the position here. Even if the 6% bonus were applied, the 50% landscaping minimum would still not be able to be achieved.

54. The Applicant has already deviated from the Development Consent previously issued for the Site through the construction of a concrete driveway, as opposed to construction of the approved gravel (permeable) surface. There may have been reasons for him to do so, as was submitted on his behalf, in terms of achieving greater stability given the slope of the Site. Council may even have had some sympathy for this position, as after making an assessment it has chosen not to take enforcement action with respect to this deviation. However, to the extent that the Applicant is entitled to have discretion exercised in his favour in respect of non-compliant construction on the Site, he has already had the benefit of such discretion. He has not succeeded in making out his case as to why that should happen again on this occasion.

55. I accept the Council’s general proposition that the reduction in the availability of porous material on the Site has an adverse impact on stormwater management. This is a further reason why it would be an unacceptable outcome to approve an increase in the amount of impermeable material on the Site.

56. In terms of visual impact, I find that the location of the Structure in the front setback does not comply with the DCP. The Outcomes sought with respect to the Character of the locality seek visual impact of the built form to be secondary to landscaping and vegetation, with buildings not to dominate, and parking to be a secondary component. What the Applicant seeks makes achievement of these Outcomes impossible.

57. Regardless of how this came to pass, the Applicant has erected a structure without having the appropriate consent to do so, when such consent was required under the EPA Act and the LEP. I concur with the Council’s submission that it is not appropriate to leave the slab in situ, in the context of the planning controls that apply in respect of the Site.

58. For the sake of completeness, I note that while the Order the subject of this appeal was originally issued by Pittwater Council, that Council has amalgamated with other Councils and is now known as the Northern Beaches Council. The effect of the relevant transitional provisions in the Local Government (Council Amalgamations) Proclamation 2016 is such that the Order is to be treated as if it were issued by the Northern Beaches Council.

59. For the reasons set out herein the appeal must fail. However, it is appropriate to amend the time for compliance to give the Applicant an appropriate period to do that which will remain required of him. That additional time is reflected in Order 2 below.

Orders

60. The orders of the Court are:

1. The appeal is dismissed;

2. Order No 2& 12 under s 121B of the Environmental Planning and Assessment Act 1979 issued by Pittwater Council in respect of premises described as Lot 13 DP 234316, 180 Warriewood Road, Warriewood, to demolish a building and restore premises, is upheld, save that the dates of compliance (referred to in paragraphs 3 and 4 of Schedule 1 of that Order) are to be within sixty and seventy days, respectively, of the date of this judgment;

3. For the avoidance of doubt, the demolition ordered is to include that part of the Structure described as the inspection pit, which area is also to be made good after such demolition; and

4. The Exhibits, other than 1 and A, are returned.

………………………………..

Rosemary Martin

Senior Commissioner

Decision last updated: 10 March 2017