South Sydney City Council v Chernov

[1999] NSWLEC 137

Land and Environment Court

of New South Wales

CITATION:	South Sydney City Council -V- Chernov [1999] NSWLEC 137
PARTIES	APPLICANT: South Sydney City Council
RESPONDENT: Chernov
NUMBER:	40012 of 1999
CORAM:	Bignold J
KEY ISSUES:	Orders :- mandatory order seeking structural engineer’s certificate as required by condition of consent—Whether condition has been complied with.
LEGISLATION CITED:
DATES OF HEARING:	04/19/1999
EX TEMPORE JUDGMENT DATE:	04/19/1999
LEGAL REPRESENTATIVES:	APPLICANT: Mr D. Baxter, Solicitor SOLICITORS: Pike Pike and Fenwick RESPONDENT: Mr V. Chernov in person SOLICITORS: N/A

JUDGMENT:

IN THE LAND AND Matter No. 40012 of 1999

ENVIRONMENT COURT OF Coram: Bignold J.

NEW SOUTH WALES 19 April 1999

SOUTH SYDNEY COUNCIL

Applicant

v.

VLADIMIR CHERNOV

Respondent

JUDGMENT

Bignold J:

1. These are class 4 proceedings in which the Council of the City of South Sydney (the Council) seeks a mandatory order against the Respondent, a registered architect, in respect of approvals granted by the Council to structural engineering drawings on a project involving alterations and renovations to premises known as 449 Oxford Street Paddington for which the Respondent was the architect.

2. Those alterations and renovations were carried out following the grant of building approval by the Council on 13 March 1997. The approval imposed standard conditions in relation to sufficiency of structural plans inasmuch as it required such plans to be prepared by structural engineers and the works to be certified following completion.

3. The evidence indicates that the building work on the project was completed within a matter of three or four months, i.e. the approved works were completed by the end of July 1997. The present proceedings were only commenced in the Court on 18 January 1999 and they seek, in terms, the provision within seven days from the date of these orders to the Council of a structural certificate from a suitably qualified engineer certifying that the engineer has inspected the works shown in a plan approved by the Council in November 1998 and that the engineer be satisfied that the said works have been carried out in accordance with the intent of the plans.

4. The evidence reveals that in fact, two sets of structural plans were approved by the Council, originally on 1 May, 1997 and then again in November 1998 in respect of a variation of the original set of plans. Both plans were prepared by a Dr Barda, a structural engineer practising in the consulting engineering firm of Alba and Associates. The first plan, which is dated 1 April 1997, is referred to as drawing number 1 of 1, job number G. The second plan contains structural details by way of variation of that earlier plan, it being dated August 1998 and being described by Dr Barda as drawing number 1A of 1, job number G. It is apparent that the variation shown in the later plan provides for a portal beam at the front of the premises of 200 millimetres thickness rather than 150 as was shown in the original plan. Both plans, as I say, have been approved by the Council subject to conditions. The relevant condition in contention in these proceedings is condition 9 which reads as follows:

That a certificate shall be submitted at the completion of the proposed work from a registered structural engineer confirming that all structural work complies with the approved certified structural plans.

5. It is to be noted that the Council's approval of the original structural plan noted in condition 8 that the approval had been based upon a structural certificate given by Dr Barda dated 3 April 1997. That plan has not come into evidence and apparently is no longer with the Council papers but it can be inferred from the date of it and the fact that the building work did not come into existence until May, that that plan was a design plan.

6. In any event, Dr Barda signed and dated 19 June 1997, a certificate according to the form employed by the Council for structural certificates. That certificate relevantly certified matters concerning the design of the plans in paragraph 4(a)(i) and as to the inspection of the works shown in the plans, in paragraph 4(b). Relevantly, the certificate referred in paragraph 4(a)(i) states:

I have designed/checked the plans, specifications and documents specified hereunder and I am satisfied that the structural work of the building to which the design relates will comply with the relevant clauses of the BCA (Building Code of Australia) and relevant Australian standards as listed below.

7. Dr Barda then completes that part of the certificate by saying words:

The relevant codes in relation to structural matters.

8. The certificate contained in paragraph 4b is in these terms:

I have inspected, supervised the works shown on the certified plans specified hereunder and I am satisfied that the said works have been carried out in accordance with the intent of these plans.

9. Dr Barda has inserted the words ` G dated 1/4/97 ’. In my opinion, it may be found by way of inference, that Dr Barda is referring to the original structural detailed plan that he prepared which is Exhibit 1 in the proceedings.

10. The evidence satisfies me that at the time the certificate was given, the relevant beams had been installed in the premises and that Dr Barda with the builder, Mr Gattone, in the middle of May 1997 had inspected the building works as they were undertaken. It follows that the certificate given in paragraph 4(b) is no doubt a certificate in relation to what Dr Barda had inspected after the works, including the beam, had been installed.

11. Herein lies the problem of the case because the Council, at about the same time, became aware that the portal beam installed at the frontage of the premises, had in fact dimensions of 200 mm rather than the 150 mm as shown in the structural plan, this matter having been drawn to the Council's building assessor's attention when Mr El-Masri inspected the premises on 13 May 1997, in the presence of Mr Chernov, the architect and Mr Gattone, the builder. On that occasion, having noted the substitution of the stronger beam, Mr El-Masri said to Mr Chernov words to the effect and I quote from paragraph 6 of Mr El-Masri's affidavit sworn 14 January 1999:

Council will require a final certificate as per the approval which will need to include the size of the new beam.

12. I take it that Mr El-Masri was referring to condition 9 of the Council's approval dated 1 May 1997 which required the submission of a certificate on the completion of the works. Mr El-Masri in paragraph 7 of his affidavit goes on to note the subsequent receipt by the Council of Dr Barda's certificate dated 19 June 1997 in respect of the completed building works. But Mr El-Masri goes on to say:

That certificate made no reference to the change made to the front beam from the drawings approved by the Council.

13. As I say, this is the source of the problem that was to develop and unfortunately has led to the present proceedings.

14. One matter not perhaps fully appreciated by the Council in its presentation of its case, is that Dr Barda's certificate, insofar as it certifies that the works that he has inspected have been carried out in accordance with the intent of the plans, employs the words “in accordance with the intent”. It is true that Dr Barda is referring in his certificate, to the plans of the original structural details which showed the beam at 150 mm thickness but the Council's conclusion that Dr Barda's certificate was unrelated to the thicker beam installed, fails, in my respectful opinion, to appreciate the requirement of the certificate, in terms referring to “in accordance with the intent of the plan” and there is nothing in the evidence to suggest that the substitution of a steel beam 200 mm in thickness, (when the approved plan said 150 mm in thickness) produced the result in engineering terms of the beam not “being in accordance with the intent of the plans”. Clearly it was because the beam gave greater reinforcement in strength, as installed, than would the thinner beam, originally certified by Dr Barda in his design.

15. Mr Chernov in his affidavit explains the background to the substitution of the 200 mm thickness beam in lieu of the design 150 mm thickness and I accept entirely Mr Chernov's evidence in that behalf, which was unchallenged in every respect. It appears from Mr Chernov's evidence that some disagreement between himself and Dr Barda ensued, not so much in respect of the substitution of the higher strength beam, but for the time delay involved in the certification process because it seems that when Dr Barda's advice was sought concerning the Council's request for the certificate, Dr Barda was overseas and his partner said that the matter must await his return. The importance of delay to the Respondent's client was that while the premises were being renovated, they could not be used for their commercial purpose and rent was being paid without any return being yielded from the use of the premises..

16. Moreover, I accept (again unchallenged) Mr Chernov's evidence that because of the disagreement between himself and Dr Barda concerning the payment of Dr Barda's fees, Mr Chernov did not appreciate until these proceedings were commenced and he read Mr El-Masri's affidavit, that in fact Dr Barda had supplied the Council with a certificate on 19 June 1997. This is important because it would seem that if Mr Chernov had been made aware of that fact, then all of the subsequent action that he took in seeking to obtain what became the second certificate issued by Dr Barda in August 1998 would not have been pursued on the basis that Mr Chernov would have regarded the matter as having been satisfactorily discharged by Dr Barda's certificate of 19 June 1997 and Mr Chernov's actions in the case, elsewhere deposed to in his affidavit, and in the affidavit of Mr El-Masri, must be understood against the vital background fact that he was unaware of the existence of the original certificate of inspection of Dr Barda that was furnished to the Council on or about 19 June 1997.

17. Another factor which I think the Council's case has not paid sufficient attention to, in relation to Dr Barda's first certificate, is the fact that the Council either was aware or could readily have made itself aware of the fact that Dr Barda had in fact inspected the works and in particular the beam in question in May 1997, only a few days after Mr El-Masri's inspection. But if there were any doubts about the matter, it seems to me that it was open to the Council to take the matter up directly with Dr Barda. I appreciate that Dr Barda was not the client and was not the person chiefly in control of the job, but he did issue a certificate to the Council and if there were doubt about it, one would have thought that the best way for the Council to clarify the matter would be to communicate with him direct, especially in the light of the fact that he was one of the structural engineers included in the list of approved engineers maintained by the Council (and indeed, maintained in such a way that when Mr Chernov had preliminary discussions with the Council in February 1997, his attention was directed to the need to engage a structural engineer whose name appeared on the Council's list). In those circumstances, as I say, it might reasonably have been expected that any doubt on the Council’s part concerning the validity on the Council’s part or the meaning or the intent of Dr Barda's original certificate dated 19 June 1997 would have been taken up with him directly. As I say, it is important to remember that it was at no time made clear to Mr Chernov, that that certificate was ever received and I would be surprised if the fact were that he had been informed, that Mr Chernov (having regard to the way in which he has defended himself in these proceedings) would not have placed full reliance upon that original certificate.

18. I interpose here to say that Mr Chernov who has been a practising architect for more than 30 years, practises in Melbourne and his practice does not often bring him to Sydney projects, this project being undertaken because of the involvement of his daughter in the Oxford Street premises.

19. In short, the Council's position in relation to the original certificate furnished by Dr Barda on 19 June 1997, in my view, was unduly pedantic and is ultimately unsustainable. In my opinion, the certificate properly understood, especially against the background facts which ought to have been known to the Council (and indeed as stated in Dr Barda's certificate, he had inspected and supervised the works) should have led the Council to the view that condition 9 of the original approval of 1 May 1997, had been complied with.

20. In one sense this renders almost irrelevant all what subsequently happened but because the matter has been fully presented to the Court I should go on to refer to subsequent matters because as will appear, the giving of the second certificate by Dr Barda some 14 months after his first certificate, also has given rise to dispute between the parties. Again, in respect of that dispute, I have come to a similar conclusion that the Council's position in relation to the second certificate by Dr Barda demonstrates an unduly pedantic approach especially in the light of the facts, which at this stage were fully known to the Council and ultimately cannot be sustained.

21. I accept, of course, that communications continued between the Council, mainly through Mr El-Masri and Mr Chernov in his Melbourne office, concerning the need for the certificate to address the question of the larger beam at the portal to the premises. This dialogue continued in a somewhat unsatisfactory manner for some while leading ultimately to the Council, on 1 April 1998, issuing an order on Mr Chernov pursuant to s 124 item 30 of the Local Government Act 1993. That order required Mr Chernov to comply with condition 9 of the building approval dated 1 May 1997 forthwith.

22. Section 124 Item 30 enables the Council to issue an order requiring compliance with an approval in circumstances where it is said that the approval has not been complied with and Mr Chernov was made liable to such an order because in the Table to s 124 in item 30, “the person to whom such an order may be given” is said to be the person entitled to act on the approval or person acting otherwise than in compliance with the approval. No point has been taken that the order was wrongly directed to Mr Chernov and I am prepared to proceed on the basis that that order was validly given to him.

23. In any event, it was following the giving of that order that the amended structural detailed plan and the further certificate of Dr Barda came into possession of the Council. The amended plan which I have earlier referred to is Exhibit 2 in the proceedings and the further certificate of Dr Barda is Exhibit A.

24. The Council, as I have said, in November 1998, notified Mr Chernov of the approval it had given to the amended structural plan, subject to a number of conditions. One of those conditions, namely condition 8, states:

This approval is based upon the structural certificate by Felix Barda dated 28 August 1998.

25. Condition 9 is in the same form as the condition which was imposed on the original structural plans, namely that a certificate shall be submitted at the completion of the proposed work from a registered structural engineer confirming that all structural work complies with the approved certified structural plans.

26. Mr Chernov's argument is that condition 9 is satisfied by the terms of Dr Barda's certificate dated 28 August 1998. The Council disputes this. It is necessary that I again refer to the details of that certificate. Again the certificate is given in accordance with the form employed for that purpose by the Council. Paragraphs 4(a) and 4(b) are virtually in the same terms (as a matter of standardised form) to the form that was employed in Dr Barda's certificate given on 19 June 1997. In the current and later certificate, Dr Barda refers in terms to drawing number 1(a) of 1 of job G in the certificate referred to in paragraph 4(a), that is in the certificate which states:

I have designed/checked the plans, specifications and documents specified hereunder and I am satisfied that the building to which the design relates will comply with the Building Code of Australia, the approved architectural plans and relevant Australian standards as listed below.

27. Paragraph 4(b) of the certificate has not been filled in by Dr Barda and merely contains the form words:

I have inspected supervised the work shown on the certified plans specified hereunder and I am satisfied the said works have been carried out in accordance with these plans.

28. The Council's point is simply this— that because no particulars of the plans have been inserted in paragraph 4(b), properly construed, the certificate should be taken as containing no content whatsoever in respect of paragraph 4(b). In my view, this interpretation of the certificate in the light of the known facts of the present case, is not an acceptable one. It is clear, in my opinion, that Dr Barda has left paragraphs 4(a) and 4(b) in tact and that his certificate was intended to apply to both aspects. Paragraph 4(a) of course refers to design and checking of the plans and specification. Paragraph 4(b) refers to the inspection and supervision of the works. The form provides an asterisk against each of sub-paragraphs (a) and (b) with an instruction on the form to delete whichever is inapplicable. It is clear that the certificate in terms, has deleted neither, in which circumstances, the reasonable interpretation of the document is that Dr Barda intended to certify both aspects, i.e. the design aspect and the inspection aspect. The Council's reliance upon the lack of details or particulars of the plans in paragraph 4(b) of the certificate, in my view, places a strained meaning on the certificate. It is obvious in the circumstances, where the works in question were completed and known to be completed by all parties (the Council, Mr Chernov, the builder, the client and not least of all, Dr Barda). That the building was completed more than a year before the certificate was issued clearly indicates to me, that Dr Barda was intending to certify that his inspection of the works satisfied him that they had been carried out in accordance with the plans, that are not specified hereunder, but are specified in paragraph 4(a) of the certificate.

29. The Council's case that the lack of particulars of the plans in paragraph 4(b) meant that no certificate could meaningfully be given, would have strength if paragraph 4(a) had been deleted but that is not so in the present case. Paragraph 4(a) makes it clear that Dr Barda is referring to the variation of his plan and that he intended to give the certificate both as to its design satisfactoriness, and the certificate in relation to the works as completed, satisfactorily. Any other meaning given to the certificate, and more importantly, interpreted in the light of condition 9 of the Council approval, in my view, would be unsustainable.

30. Condition 9 refers to “the submission of the certificate at the completion of the proposed work”. In the present case it was known to the Council that there was no proposed work. The work had long passed, having been completed some 14 months earlier. In those circumstances, to hold that the approval had not been complied with because condition 9 had not been fulfilled, in my opinion, cannot be legally sustained.

31. I accept, of course, the submission made by the Council that on matters of structural soundness the Council must be vigilant, especially in the case of buildings frequented by members of the public (such as the present building, which is operated as a restaurant). However, there has been no suggestion in the evidence that there is anything unsatisfactory structurally in the building and as I have pointed out earlier, the substitution of a stronger beam for that originally designed, can hardly pose a threat to structural soundness. It would be entirely different if the case were the other way as Mr Baxter on behalf of the Council conceded—i.e. if in fact a beam of lesser strength than that specified had been substituted. But the present case involves a stronger beam that specified in the design.

32. In short, the Council's case regrettably fastens upon a punctiliousness with paperwork which in my opinion, is thoroughly unjustified on the proven facts of the present case and the known facts to the Council. It is unfortunate that the litigation has been brought because it appears to me regrettably to be much ado about nothing.

33. I should say that Mr Chernov's evidence about the conversation he had with Mr El-Masri in November 1998 (at a time when he had not received the Council's letter of approval of November 1998) has not been challenged and I accept it. In short, just as in the case of the first certificate given by Dr Barda to the Council in June 1997, Mr Chernov was unaware of the existence of the certificate (and was never made aware of it by the Council until these proceedings were brought), so in the case of the second certificate, Mr Chernov, in engaging in that conversation with Mr El-Masri in November 1998, was not aware of the fact that the Council had approved the variation of the structural detail plan, at the time of the conversation which Mr Chernov did not receive at his Melbourne premises for about a month later I accept his explanation that upon receiving that letter a month subsequent to Mr El-Masri's conversation with him, Mr Chernov had concluded that the matter had been satisfactorily resolved, an opinion which as it turns out, is entirely validated by my findings in the present case and in particular by my interpretation of the two certificates given by Dr Barda, understood in the light of the condition 9 imposed on each of the Council’s approvals of the structural plans.

34. It was not until Mr Chernov received the process commencing these proceedings in February this year that he realised that the matter had not been resolved satisfactorily to the Council (at least from the Council's perspective). Despite this, as late as a couple of weeks ago, Mr Chernov, in a letter to the Council's Solicitors, upon receiving for the first time the copies of the certificates given by Dr Barda to the Council, made representations to the Council's Solicitors to the effect that the certificate of Dr Barda, given in August 1998, complied with condition 9. However, those representations proved to be unavailing.

35. In the event and for all the foregoing reasons, I am of the opinion that the Council has not established any claim to the mandatory relief that it seeks in the present proceedings and that the application must accordingly be dismissed. That conclusion however, to my mind, does not produce any adverse consequence for anyone on the proven facts of this case where there is not a jot of evidence to suggest that the building work undertaken in accordance with the approvals, has been undertaken in anything but a workmanlike condition. As I have said, regrettably the Council's case has adopted a punctilious approach to condition 9 of both the May 1997 and November 1998 approvals of both the original and variation structural plans respectively, which in my opinion, cannot be justified and which I have rejected for the foregoing reasons.

36. Accordingly I order that the application be dismissed and that the exhibits be returned to the parties upon publication in written form of my reasons for decision.
CHERNOV: Could I ask, since I have incurred a lot of costs, I haven't been represented, but it's something like 40 hours and my travelling time, would it be appropriate to make order for my costs?

HIS HONOUR: Mr Baxter on the question of costs?

BAXTER: As your Honour knows, costs before the Court represent professional costs of attending proceedings. There may be an entitlement to an order for expenses but that would be the sum total.

HIS HONOUR: Yes thank you Mr Baxter.

HIS HONOUR: Mr Chernov, there are limitations on costs orders that can be made to unrepresented people, but you should be entitled in this case to your expenses of coming to Court, of witness expenses for example, of witness expenses of calling Mr Gattone. What I suggest you do is that you provide Mr Baxter with a schedule of costs that you claim, your travel expenses and the like, your time in Court today, whether any claim is made in relation to Mr Gattone, and that you in the first instance give that statement of costs to Mr Baxter and if there is an agreement for the payment of those costs, so be it. If there is not then you may have leave to provide the Court with a copy of the costs and expenses that you claim. There will be no need for you to come back to Sydney to argue that matter. I will reserve the question of costs on the basis that prima facie you would be entitled to an order to your expenses, your time here, as if a witness, and Mr Gattone's expenses, if that's what you are going to claim. I don't think you will be entitled to claim for your hourly rate of the amount of time you have put into this case, because as Mr Baxter says, the costs are confined to legal costs, that is what parties get when they get an order for costs, they get an order for how much costs are incurred by their respective lawyers. Although I will formally reserve the question of costs, I grant you liberty Mr Chernov to apply to the Court for costs and expenses which I would invite you to detail, but in the first instance to submit the bill to Mr Baxter and he can get some instructions and then if the matter is not resolved there then I give you liberty to simply, by letter, to write to the Court enclosing your bill and simply say that if this is the case, that you put the bill to the Council but the Council does not pay the costs and you ask the Court to make an order in your favour. That's the way to go. Do you understand how to do it?

CHERNOV: Yes very clear thank you.

HIS HONOUR: So that I make the following formal orders:
1. The application be dismissed.
2. The exhibits be returned to the parties at the same time as the reasons in writing are published.
3. The question of costs be reserved with liberty to the Respondent to apply for costs and expenses in the event of him not reaching agreement with the Council as to the payment of those costs and disbursements and expenses.