Propwise Pty Limited v The Council of the City of Sydney

[2020] NSWLEC 1148

Land and Environment Court

New South Wales

Medium Neutral Citation:

Propwise Pty Limited v The Council of the City of Sydney [2020] NSWLEC 1148

Hearing dates:

17 March 2020

Date of orders:

17 March 2020

Decision date:

31 March 2020

Jurisdiction:

Class 1

Before:

Peatman AC

Decision:

The Court orders:
(1) The appeal is dismissed.
(2) The Applicant agrees to pay the Respondent’s costs in the amount of six thousand dollars ($6,000) within twenty-eight days of the date of these orders.

Catchwords:

Appeal – Development Control Orders – demolish works order – agreement between the parties

Legislation Cited:

Environmental Planning and Assessment Act 1979
Land and Environment Court Act 1979
Local Government Act 1993
State Environmental Planning Policy (Exempt and Complying Development Codes) 2008
Sydney Local Environmental Plan 2012

Category:

Principal judgment

Parties:

Propwise Pty Ltd ACN 165 975 066(Applicant)
The Council of the City of Sydney (Respondent)

Representation:

Mr Kim in the morning hearing. Mr Wagameie (Law Graduate appearing with leave) in the hearing from 2pm (Applicant)

   

Counsel:
N Hammond (Respondent)

  Solicitors:
BNC Lawyers (Applicant)
The Council of the City of Sydney (Respondent)

File Number(s):

2019/150440

Publication restriction:

No

Judgment

1. COMMISSIONER: The Applicant is appealing an Order (the Order) issued by the Respondent under Division 9.3, Schedule 5, Part 1, Order 3 of the Environmental Planning and Assessment Act 1979 (EP & A Act). The Order dated 17 April 2019 requires the demolition and removal of unauthorised building works on the mezzanine level at Lot 1 DP 597062, 1 Hiles Street, Alexandria, NSW (also known as 78-80 McEvoy Street), (the Premises).

2. The unauthorised building works on the mezzanine level at the Premises constructed without development consent consist of the following:

1. Construction of 3 closet pan, 3 washbasins on the south western side of the mezzanine level.

2. Construction of new kitchen with benchtop, cupboards and lightweight walls extending and converting the existing approved office space area at the mezzanine into 3 rooms and a toilet.

3. Construction of lightweight partition walls creating 8 new rooms within subject mezzanine level with windows and door.

4. Construction of new ceiling above the 8 rooms mentioned in item 3 and the corridor leading to those rooms.

3. The site is rectangular in shape located at a corner site and has a primary street frontage to Hiles Street to the east, McEvoy Street to the north and bunds McCauley Lane to the west of the site.

4. The site contains a 1-storey building with a mezzanine floor, with vehicle and pedestrian access to the building on McEvoy Street.

5. The Premises were previously approved to be used as a panel beating and smash repair workshop with modifications of a portion of the mezzanine level into offices under consent U91/00232.

6. The Premises is located within Zones B7 Business Park and SP2 Infrastructure under Sydney Local Environment Plan 2012 (Sydney LEP 2012).

7. Other surrounding land uses include other commercial warehouse type uses and some mixed use residential/retail uses.

8. The Applicant filed an appeal in the Land and Environment Court in relation to the Order on 14 May 2019 pursuant to s 180 of the Local Government Act 1993, and noted the appeal as Class 1 on the first page and Class 2 on the second page. The parties accepted the Court’s jurisdiction pursuant to s 8.18 of the EP & A Act and s 17 (e) of the Land and Environment Court Act 1979 (LEC Act).

9. The parties took part in a s 34 Conciliation Conference on 4 November 2019. The s 34 Conciliation Conference was terminated and the proceedings set down for hearing.

The role of the Court on appeal

10. In hearing the appeal, the Court re-exercises the function of the Council in determining whether the Order should be issued Section 39 of the LEC Act provides as follows:

39   Powers of Court on appeals

(1)  In this section, appeal means an appeal, objection, reference or other matter which may be disposed of by the Court in proceedings in Class 1, 2 or 3 of its jurisdiction.

(2)  In addition to any other functions and discretions that the Court has apart from this subsection, the Court shall, for the purposes of hearing and disposing of an appeal, have all the functions and discretions which the person or body whose decision is the subject of the appeal had in respect of the matter the subject of the appeal.

(3)  An appeal in respect of such a decision shall be by way of rehearing, and fresh evidence or evidence in addition to, or in substitution for, the evidence given on the making of the decision may be given on the appeal.

(4)  In making its decision in respect of an appeal, the Court shall have regard to this or any other relevant Act, any instrument made under any such Act, the circumstances of the case and the public interest.

(5)  The decision of the Court upon an appeal shall, for the purposes of this or any other Act or instrument, be deemed, where appropriate, to be the final decision of the person or body whose decision is the subject of the appeal and shall be given effect to accordingly.

(6) Notwithstanding any other provision of this section, if an appeal relates to an application made to a council within the meaning of the Local Government Act 1993 or a consent authority within the meaning of the Environmental Planning and Assessment Act 1979 and that council or consent authority may not approve of, consent to, or deal with, or grant a permission in respect of, the application except after consultation with, or with the concurrence or approval of, any person or body—

(a)  the Court may determine the appeal whether or not the consultation has taken place and whether or not the concurrence or approval has been granted, and

(b)  in a case where the concurrence or approval has been granted—the Court may vary or revoke any conditions imposed by that person or body or may impose any conditions that could have been imposed by that person or body.

(6A)    (Repealed)

(7)  The functions of the Court under this section are in addition to and not in derogation from any other functions of the Court.

………………………………….

11. The Development Control Orders may be given under section 9.34 of the EP & A Act) –

The development control orders that may be given under this Act are as follows –

(a) general orders in accordance with the table to Part 1 of Schedule 5.

12. The Order was issued pursuant to The EP&A Act, Schedule 5: Development Control Orders, paragraph 10:

Column1 To do what?	Column 2 When?	Column 3 To whom?
Restore Works Order To restore premises to the condition in which they were before unlawful building or other works occurred	An unauthorised building has been the subject of a Demolish Works Order or unauthorised works have been carried out.	•   The owner of the premises •   Any person entitled to act on a planning approval or acting in contravention of a planning approval •   In relation to work unlawfully carried out that was the deposit of material in a public place, the person responsible for unlawfully depositing material in a public place

13. Section 8.18 (4) sets out the powers of the Court on an appeal against an order. Those powers are as follows:

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

(a) revoke the development control order, or

(b) modify the development control order, or

(c) substitute for the development control order any other order that the relevant enforcement authority who gave the order could have given, or

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

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

(f) make such other order with respect to the development control order as the Court thinks fit.

14. The use of the word “may” in both s 9.34 (1) and s 8.18(4) gives the Court a broad discretion to consider whether to issue an order (s. 9.34 (1)), and to also consider the appropriate orders to be made on appeal.

15. The EP&A Act defines “building”, as referred to in the Order, in s. 1.4 as follows:

building includes part of a building, and also includes any structure or part of a structure (including any temporary structure or part of a temporary structure), but does not include a manufactured home, moveable dwelling or associated structure within the meaning of the Local Government Act 1993.

16. The definition of “building” includes part of a building, and therefore applies to the unauthorised building works on the mezzanine level of the Premises.

The hearing

17. At the hearing the Respondent tendered the following exhibits:

“1”   Statement of Facts and Contentions

“2”   Statement of Facts and Contentions in Reply

“3”   Joint Expert Report of the Town Planners, Mr D Carey for the Applicant and Ms A. McGrath for the Respondent filed 6 March 2020

“4”   Joint Expert Report of the Building Surveyors, Mr C Michaels for the Applicant and Mr M Cai for the Respondent

“5”   Respondent’s Bundle of Documents

18. The parties requested Consent Orders to be made dismissing the appeal and making an order for Costs in favour of the Respondent in the sum of $6,000.

19. The parties advised the Court that the Applicant had sent an email on Friday 13 March 2020 to the Respondent undertaking to comply with the Orders. Neither party had a copy of the email to hand to the Court.

20. The Respondent undertook to deliver a copy of the email dated 13 March 2020 to the Court by 1pm today (17 March 2020).

21. In view of the Applicant advising that it would comply with the Orders, and within the time limit in the Orders of 35 days to complete the demolition and removal of unauthorised building works I made the Orders requested by the parties that:

1. The appeal is dismissed;

2. The Applicant agrees to pay the Respondent’s costs in the amount of six thousand dollars ($6,000) within twenty-eight days of the date of these orders.

22. The Court then received an email from the Respondent’s solicitor, Mr Canning, at 10:59AM today (17 March 2020) attaching a copy of the Applicant’s email dated 13 March 2020 which stated as follows:

“We refer to the above matter and note that after looking at the findings of the experts our client is prepared to concede their case and comply with councils order to demolish the unapproved works completed.

Please prepare consent orders to reflect the agreement of the parties for our review.”

23. The Uniform Civil Procedure Rules gives the Court power to re-open the case in the following circumstances:

36.15   General power to set aside judgment or order

(1)  A judgment or order of the court in any proceedings may, on sufficient cause being shown, be set aside by order of the court if the judgment was given or entered, or the order was made, irregularly, illegally or against good faith.

(2)  A judgment or order of the court in any proceedings may be set aside by order of the court if the parties to the proceedings consent.

24. The agreement made between the parties on 13 March 2020 appeared not to “dismiss” the appeal but rather to reflect the “agreement” set out in the said email, that is that the Consent Orders should reflect the Development Control Order.

25. I made the decision to reopen the case to ensure that the orders made were not made “against good faith”, to admit the subject email as an exhibit and to further explore with the parties whether the “agreement” referred to in the email was properly reflected in the Consent Orders.

26. The Court reconvened at 2pm on 17 March 2020, and ordered that the Consent Orders made earlier on 17 March 2020 be set aside.

27. The Respondent tendered the following which was admitted as an exhibit:

“ “6”   Email from David Kim of BNC Lawyers sent at 2:19PM on 13 March 2020 to Phillip Canning of the City of Sydney Council was admitted as Exhibit “6”.”

28. I then invited Ms Hammond to make any further submission on behalf of the Respondent in relation to the agreement referred to in Exh “6”. Ms Hammond confirmed the Respondent’s instructions to reinstate the Consent Orders.

29. I then invited Ms Hammond to consider why the Court did not make orders in conformance with the Respondent’s Development Control Order dated 17 April 2019, and adjourned the proceedings for Ms Hammond to take instructions.

30. On reconvening the Court Ms Hammond advised that the Respondent did not want court orders in the terms of its Development Control Order dated 17 April 2019, and again requested the Court to make the Consent Orders.

31. I then invited Mr Wagameie to make any further submissions on behalf of the Applicant, and he indicated he had no further submissions to make.

32. I note that the parties have requested that I make an order for costs in favour of the Respondent in the sum of $6,000.

33. Having considered the submissions made, and having given the Respondent the opportunity to have the Court make orders in accordance with the Development Control Order dated 17 April 2019, I then made the Consent Orders as requested by the parties.

Orders

34. The Court orders that:

1. The proceedings are dismissed.

2. The Applicant to pay the Respondent’s costs in the amount of six thousand dollars ($6,000) within twenty-eight days of the date of these Orders.

…………………………

M Peatman

Acting Commissioner of the Court

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Decision last updated: 01 April 2020