Steffan v McKnight

[2025] NSWLEC 34

Land and Environment Court

New South Wales

Medium Neutral Citation:

Steffan v McKnight [2025] NSWLEC 34

Hearing dates:

17, 18 and 19 February 2025

Date of orders:

11 April 2025

Decision date:

11 April 2025

Jurisdiction:

Class 4

Before:

Duggan J

Decision:

See orders at [87]-[88]

Catchwords:

CIVIL ENFORCEMENT – development in breach of condition of development consent – use of land for carparking without development consent – civil enforcement – ss 4.2 and 9.46 of the Environmental Planning and Assessment Act 1979 (NSW) – orders and declarations

Legislation Cited:

Civil Procedure Act 2005 (NSW) s 149B

Environmental Planning and Assessment Act 1979 (NSW) ss 4.2, 9.46

Cases Cited:

Baulkham Hills Shire Council v O’Donnell (1990) 69 LGRA 404

Foodbarn Pty Ltd v Solicitor-General (1975) 32 LGRA 157

Warehouse Group (Australia) Pty Ltd v Woolworths Ltd [2003] NSWCA 270; (2003) 137 LGERA 115

Warringah Shire Council v Sedevcic (1987) 10 NSWLR 335; (1987) 63 LGRA 361

Westfield Management Pty Limited v Gazcorp Pty Ltd [2004] NSWLEC 7; (2004) 135 LGERA 220

Category:

Principal judgment

Parties:

Robert Charles Peter Steffan (First Applicant)
Tracy Steffan (Second Applicant)
Ian Trevor McKnight (First Respondent)
Gayle Rosalee McKnight (Second Respondent)

Representation:

Counsel:
R Lancaster SC and T Poisel (Applicants)
J Hutton SC and R Coffey (Respondents)

Solicitors:
Addisons (Applicants)
HWL Ebsworth Lawyers (Respondents)

File Number(s):

2023/00173987

Publication restriction:

Nil

JUDGMENT

Nature of Proceedings

1. The primary issue for consideration in these proceedings is whether the use of three concrete slabs by Ian Trevor McKnight (First Respondent) and Gayle Rosalee McKnight (Second Respondent) (collectively, the Respondents) for parking is authorised by two sperate development consents.

2. These proceedings were also required to consider whether the Respondents carried out development works contrary to the conditions of the 2001 Consent in relation to stormwater and the requirement to install a privacy screen around the spiral staircase on the Respondents’ land.

Facts

The Land

3. On 28 February 1963, the registration of subdivision of DP 223177 created 26 Abernethy Street, Seaforth, known as Lot 1 in DP 223177 (26 Abernethy) and 28 Abernethy Street, Seaforth, known as Lot 2 in DP 223177 (28 Abernethy).

4. 28 Abernethy is a battle axe block fronting the water at Middle Harbour, with a long access handle running along the length of 26 Abernethy from the street, as depicted below:

Figure 1: Aerial image of 26 Abernethy and 28 Abernethy

5. In or around December 1990, the Respondents purchased 28 Abernethy.

6. On 7 June 2019, Robert Charles Peter Steffan (First Applicant) purchased 26 Abernethy and is the sole registered owner.

7. On or about 30 August 2019, the First Applicant, his wife Tracy Steffan (Second Applicant) (collectively, the Applicants) and their family moved into 26 Abernethy.

Development Application – 2001 Consent

8. On 20 June 2001, Manly Council (now the Northern Beaches Council) (Council), granted development consent to development application DA34/01, for the demolition of the existing dwelling and construction of a double garage and split-level dwelling at 28 Abernethy (2001 Consent).

9. On 2 August 2001, Council issued the First Respondent with Owner Builder Permit No 222066P authorising the building work in accordance with the 2001 Consent.

10. On 17 June 2003, Council issued Construction Certificate No125/03 to the First Respondent for the garage.

11. The plans approved by Construction Certificate No 125/03, are for the garage (2001 Consent Plans). The 2001 Consent Plans comprise:

1. M1-8-00.CC, rev A, dated 4 September 2001;

2. M1-8-00DA, rev A, sheet 1 & 2, dated 12 September 2001;

3. Structural details M-01-14302/1A, dated 18 December 2001, reference to be read in conjunction with DWG. No. M-01-14302/2A; and

4. All plans received by Council on 23 May 2003.

12. The 2001 Consent Plans included approval for the construction of a concrete slab and double garage, as follows:

1. A double garage on a suspended reinforced concrete slab of 150mm in thickness; and

2. Construction of a concrete slab on 28 Abernethy (No 28 Slab) and 26 Abernethy (Old No 26 Slab) (collectively, 2001 Consent Slab).

13. The conditions of the 2001 Consent include (with emphasis in original):

Condition 1:

This approval relates to drawings/plans Nos. M1-8-00DA (floor plans) (elevations and (sic) Sections) (site garage plans) shadow diagrams dated August, 2000, and received by Council on the 5th of February, 2001.

Condition 15:

To provide privacy to the residents of the dwelling at 30 Abernethy Street, the spiral stairs from the garage are to be enclosed and/or a privacy screen that shields the bedroom window from the adjoining dwelling is to be to erected along the boundary between Nos. 28 and 30 Abernethy Street. Details are to be provided to the Principle Certifying Authority and the plans amended accordingly prior to the issue of the Construction Certificate.

Condition 17:

To minimise view loss for neighbours and ensure the development is consistent with the Council's view sharing policy the garage is to have a flat roof. Amended plans are to be submitted to the Principle Certifying Authority prior to the issue of the Construction Certificate.

Condition 63:

Once commenced the development hereby permitted shall only be continued in accordance with the conditions of approval and to the satisfaction of the Principle Certifying Authority.

Condition 67:

The works require the following inspection/certification during the course of construction:

Silt control fences

Footing inspection - trench and steel

Reinforced concrete slab X 2

Framework inspection X 3

Wet area moisture barrier X 2

Drainage inspection

Landscaping inspection

Final inspection

….

14. Extracts of the 2001 Consent Plans are below:

Figure 2: 2001 Consent Plan Garage Floor Plan

Figure 3: 2001 Consent Plan Garage L Floor Plan

Extent of Garage Construction in Accordance with the 2001 Consent

15. The Old No 26 Slab and No 28 Slab have been constructed. However, the walls and roof of the garage structure as approved by the 2001 Consent, have not been.

16. The building works were changed, to construct a cantilevered slab, rather than the structure shown in the 2001 Consent Plans.

17. The spiral stairs at the rear of the No 28 Slab are not enclosed and a privacy screen has not been constructed.

18. The Respondents admit:

1. That they caused a 14 March 2023 report from Slab Scan Pty Ltd to be submitted to Council that states, in part, in relation to the Old 26 Slab and the No 28 Slab:

Slab thickness physically measured at the edge as 280mm thick.

2. That the Old 26 Slab and No 28 Slab was not built in accordance with drawings M-01-14302/1A and drawing M-01-14302/2A, both dated 18 December 2001, because it is not 150mm thick;

3. There are no barriers on a portion of the western perimeter of the No 28 Slab;

4. No final inspection of the works undertaken pursuant to the 2001 Consent has been obtained, as required by condition 67 of the 2001 Consent;

5. An Occupation Certificate has not been obtained in relation to the 2001 Consent; and

6. The 28 Abernethy storage room does not have masonry walls on the northern, eastern, southern and westerns sides, as shown in drawing M1-8-00DA, titled “Proposed Split Level Residence Floor Plans”, rev A, sheet 2, dated 12 September 2001.

Development Application – 2004 Consent

19. On 11 May 2004, Council issued a Notice of Determination for DA 63/04, that included the approval for the demolition of the existing dwelling and construction of a new dwelling, pool and garage at 26 Abernethy (2004 Consent).

20. The 2004 Consent approved the construction of the garage roof abutting the boundary with 28 Abernethy, with parapet walls and pebble finish. The approved plans do not provide for any access between the 2001 Consent Slab and the roof of the garage (New No 26 Slab).

21. The conditions of the 2004 Consent include (with emphasis in original):

Condition 2:

The existing surplus vehicular crossing and/or kerb layback shall be removed and the kerb and nature strip reinstated prior to issue of the Occupation Certificate.

Condition 27:

Adequate provisions shall at all times be made on the land for the parking of motor vehicles associated with the use of the land.

22. On 14 February 2006 and 21 July 2006, Council approved the modification of the 2004 Consent.

23. An extract of the plans (as modified) in the 2004 Consent relating to the garage is below:

Figure 4: 2004 Consent (as modified) extract

Construction Status in Accordance with the 2004 Consent

24. On 17 January 2007, a Final Occupation Certificate for the 2004 Consent was issued by Grant Harrington, Principal Certifiers Australia.

Easement Registration – DP 1162402

25. On 7 March 2011, the registration of DP 1162402 created the following easements:

1. Easement for parking variable width limited in depth, burdening 26 Abernethy and benefiting 28 Abernethy (Parking Easement);

2. Easement for storage variable width limited in height, burdening 28 Abernethy and benefiting 26 Abernethy (Storage Easement);

3. Right of Carriageway 1.895 wide, burdening 28 Abernethy and benefiting 26 Abernethy;

4. Right of Footway variable width, burdening 26 Abernethy and benefiting 28 Abernethy;

5. Easement for Water Supply 6.995 wide, burdening 26 Abernethy and benefiting 28 Abernethy;

6. Right of Carriageway 1.22 wide, burdening 28 Abernethy and benefiting 26 Abernethy; and

7. Right of Carriageway 1.8 wide, burdening 26 Abernethy and benefiting 28 Abernethy.

26. The site of the Parking Easement is the roof of the garage on 26 Abernethy, on the site of the Old No 26 Slab and the New No 26 Slab. The terms of the Parking Easement are:

[F]ull and free right for every person who is at any time entitled to an estate or interest in the possession in the land herein indicated as the Dominant Tenement or any part thereof with which the right shall be capable of enjoyment, and every person or conveyance authorised by him, to go, pass and repass and remain at all times and for any amount of time, for any purpose pertaining to parking of a motor vehicle, motor cycle, trailer, horse float or other wheeled conveyance over the area of land indicated as Easement for Parking variable width, being on the top of the concrete roof of part of a rendered garage below, in the abovementioned plan including the right to construct, install and maintain and repair garaging or carport facilities in such area provided that all necessary local authority consents and approvals shall have been obtained.

27. The site of the Storage Easement is the storeroom on 28 Abernethy situated beneath the 2001 Consent Slab. The terms of the Storage Easement are:

[F]ull and free right for every person who is at any time entitled to an estate or interest in possession in the land herein indicated as the Dominant Tenement or any part thereof with which the right shall be capable of enjoyment, and every person or conveyance authorised by him, to go, pass and repass and remain at all times and for any amount of time, for any purpose pertaining to storing non-hazardous items within the area of land indicated as Easement for Storage limited in height including the right to construct, install, maintain and repair walling and other installations in such area for this purpose provided that all necessary local authority consents and approvals shall have been obtained.

28. An extract of the plan of easements within 26 Abernethy and 28 Abernethy is extracted below:

Figure 5: Plan of Easements

Development Application – 2011 Consent

29. On 3 November 2011, Council granted development consent to development application DA 192/11 (2011 Consent).

30. On 3 November 2016, the 2011 Consent lapsed, as building works had not physically commenced in accordance with the 2011 Consent.

Parking and Storage – 26 Abernethy and 28 Abernethy

31. The Respondents have parked or permitted parking of vehicles on the Parking Easement comprising the 2001 Consent Slab and the New No 26 Slab.

Stormwater Drainage

32. Condition 43 of the 2001 Consent provides:

Roof water and surface stormwaters from paved areas from the development shall be collected and piped to the harbour foreshore in a manner approved by the Principle Certifying Authority. If the piped system runs across park reserves, approval by Council’s relevant officer shall be obtained. The stormwater disposal system must have a stilling sump and flow dissipater provided at the property line.

33. The Respondents used an above ground detention tank, together with two above ground storage tanks, with excess water piped to the harbour.

34. The Respondents used the collected stormwater for a bushfire prevention system and domestic purposes, that included use in the garden and for flushing toilets.

Related Proceedings

35. On 28 August 2023, dealing AT342489 was registered on the land titles of 26 Abernethy and 28 Abernethy to reflect the orders and declaration made by Kunc J in the Supreme Court of NSW on 15 December 2022.

36. By order made on 5 October 2023, Peden J ordered that the Supreme Court of NSW proceedings, inclusive of any and all cross-claims, be transferred to the Land and Environment Court of NSW and be heard together with the Land and Environment Court of NSW proceedings number 2023/00173987 pursuant to s 149B(2) of the Civil Procedure Act 2005 (NSW).

37. On 17 February 2025, the transferred proceedings which comprised proceedings number 2023/00324715 in the Land and Environment Court of NSW were concluded by consent of the Applicants and Respondents in this matter.

Issues for determination

38. The matters in dispute between the parties give rise to the following issues for determination:

1. Whether the 2001 Consent permits the parking of vehicles on the No 28 Slab and the Old No 26 Slab, if so, whether parking prior to the completion of the development approved pursuant to the 2001 Consent is authorised;

2. Whether the 2004 Consent permits the parking of vehicles on the New No 26 Slab;

3. Whether the development on 28 Abernethy is being carried out contrary to the provisions of the 2001 Consent, in breach of conditions:

1. Condition 43 relating to stormwater; and/or

2. Condition 15 relating to the installation of a privacy screen on the spiral staircase;

4. If, development is being carried out without development consent or in breach of the conditions of any development consent, contrary to the requirements of s 4.2 (formerly s 76A) of the Environmental Planning and Assessment Act 1979 (NSW) (EP&A Act), should the Court, in the exercise of its discretion make declarations and orders in connection with such breach.

39. Each of the relevant development consent under consideration in these proceedings were granted prior to the amendment of the EP&A Act. By the amendment, the relevant provisions were renumbered but remain relevantly in the same terms. For ease of reference, I will refer to the provisions of the EP&A Act by reference to the amended numbering.

Submissions

Issue 1 – 2001 Consent Car Parking

Applicants’ Submission

40. The crux of the Applicants’ submission is that the 2001 Consent did not authorise car parking on the 2001 Consent Slab, without the Respondents first complying with the conditions of the consent. It was contended that the conditions of consent required the construction of a double garage, and in the absence of this, as is the case, the 2001 Consent did not approve car parking on the slabs of the proposed garage.

41. As construction of the New No 26 Slab was completed after the 2001 Consent, having been approved by the 2004 Consent, the 2001 Consent did not purport to, and could not look into the future to authorise any development or hard stand car parking on the New No 26 Slab.

42. In addition, it was contended that the Respondents were also carrying out the development contrary to other conditions of the 2001 Consent in that:

1. That the 2001 Consent Slab thickness is not 250mm thick, as required by the 2001 Consent Plans;

2. The floor beam under the 2001 Consent Slab was not constructed;

3. That the masonry walls to the storage room on 28 Abernethy had not been constructed; and

4. The failure to carry out the final inspection as required by condition 67 of the 2001 Consent.

Respondents’ Submission

43. The Respondents contended that the 2001 Consent permitted car parking on the 2001 Consent Slab. It was conceded, however, that the development works were not carried out in accordance with the 2001 Consent. Notwithstanding this, the Respondents submitted that the particular use, being car parking, was not a prohibited use by the 2001 Consent.

44. Instead, it is accepted that the Court may, in the course of restraining or remedying the failure to complete construction, restrain the Respondents from parking on the 2001 Consent Slab, until such works are completed. That is, until the Respondents effect the construction of a double car garage on the 2001 Consent Slab, as approved by the 2001 Consent.

Findings on Issue 1

45. It is common ground that parking in association with the use of land for the purposes of a dwelling is not a use that is prohibited development by operation of the relevant environmental planning instrument. That is, parking, subject to the grant of the necessary development consent, is a permissible use of the land. Therefore, there is no issue to be determined relating to whether the use of the land for parking is an ancillary development: see Foodbarn Pty Ltd v Solicitor-General (1975) 32 LGRA 157 and Baulkham Hills Shire Council v O’Donnell (1990) 69 LGRA 404.

46. The Respondents did obtain development consent for the purposes of parking in association with a dwelling, being the 2001 Consent. Development for that purpose is permitted if carried out in accordance the 2001 Consent: s 4.2(1) of the EP&A Act.

47. The 2001 Consent was granted subject to conditions. Condition 1 required that the development be carried out in accordance with the nominated approved plans. The evidence discloses that the development of the parking structure was not carried out in accordance with the approved plans in so far as:

1. The slab was not constructed as depicted in the plans as to its dimensions and thickness of the indicated slab;

2. The structural supports for the indicated slab (and extending to the ground level below which incorporates the storage area) were not constructed as per the plans;

3. The indicated slab was to be within the boundary of 28 Abernethy; and

4. The parking area was to be contained within a garage structure, comprising walls, garage doors and roof, none of which have been constructed.

48. Whilst parking per se is permitted with development consent it is clear that the Respondents are not carrying out the development which permitted that parking in accordance with the condition of the development consent. Absent compliance with the condition of the 2001 Consent the Respondents are not entitled to rely upon the 2001 Consent to authorise the car parking.

49. In addition, condition 67 required a final inspection to be carried out during the course of construction. Such final inspection was not carried out and therefore, the use of the Old No 26 Slab and the No 28 Slab for parking is contrary to the requirement of that condition.

50. In addition to the issue of parking, the Applicants contended that the area beneath the 2001 Consent Slab, comprising the storage area, was not constructed in accordance with the 2001 Consent in that the masonry walls had not been constructed and that the structural features supporting the slab above had not been constructed in accordance with the approved plans. On the evidence, this contention is correct. The walls of the storage area are not masonry and the structure approved has not been constructed, rather a structural system to support the cantilever slab design has been constructed.

51. Accordingly, I am satisfied that the Applicants have established that the development undertaken is contrary the terms of the 2001 Consent and has therefore, been undertaken contrary to the provisions of s 4.2(1) of the EP&A Act with respect to:

1. The use of the 2001 Consent Slab for the purposes of car parking; and

2. The construction of the storage room and structural elements of the development approved.

Issue 2 – 2004 Consent Car Parking

Applicants’ Submission

52. The Applicants submit that the 2004 Consent is silent as to whether car parking on the New No 26 Slab is authorised. On a proper construction, it is contended that the 2004 Consent did not contemplate parking on the New No 26 Slab for the following reasons:

1. The 2004 Consent could only grant access to the parking on the New No 26 Slab via 28 Abernethy and the 2004 Consent does not expressly consider this;

2. If direct access to the New No 26 Slab was contemplated by the 2004 Consent, this would be contradicted by condition 2 of the 2004 Consent and the existing vegetation planting in the road reserve, as identified on plans to the 2004 Consent; and

3. The parapet structure around the Old No 26 Slab and the New No 26 Slab, as shown on the 2004 Consent plans would preclude access to the New No 26 Slab.

Respondents’ Submission

53. Throughout the course of the hearing the Respondents’ submission in relation to the 2004 Consent changed. In closing, the Respondents accepted that the 2004 Consent did not give any implied or inferred entitlement for car parking on the New No 26 Slab.

Finding on Issue 2

54. The 2004 Consent does not approve parking on the roof of the garage proposed on New No 26 Slab. This is apparent from the approved plans that expressly show that the roof of 26 Abernethy, for which consent was sought and obtained, was to be constructed to and abutting the boundary of 28 Abernethy and to that extent, also included that part of the Old No 26 Slab which had been the subject of the 2001 Consent. The plans indicated that the roof was to have a pebble finish and parapet walls to each elevation. These features indicate both practically and expressly that there was no approval to use the New No 26 Slab for parking at all, including by 28 Abernethy.

55. I do observe that the easement referred to at [26] above does confer upon the Respondents an entitlement to use the New No 26 Slab and the Old No 26 Slab for parking. Such an entitlement is, however, an entitlement relating to the real property arrangements as between the owners of the relevant properties the subject of the easement. The entitlements conferred by the easement affect the rights of the parties, those rights, however, do not overcome the requirements of the EP&A Act. Notwithstanding the operation of the easement for parking, if development consent is required by operation of the EP&A Act to enable such rights to be exercised, a development consent must be obtained, and any such development must also be carried out in accordance with any conditions imposed.

56. Accordingly, I find that the use of the New No 26 Slab for car parking is being carried out without development consent contrary to the provisions of s 4.2(1) of the EP&A Act.

Issue 3 – Breach of the 2001 Consent

Applicants’ Submission

Stormwater

57. The Applicants submit that the Respondents are in breach of condition 43 of the 2001 Consent, as any water caught by the Respondents’ rainwater system is required to be piped to Middle Harbour. It is contended that the Respondents use of rainwater, in applications such as flushing toilets in the house at 28 Abernethy, results in wastewater entering the sewerage system and not the harbour.

58. The Applicants submit that the installed capacity of the Respondents tanks exceeds the amount permissible as exempt development and the failure to install flow dissipater are further examples of the Respondents non-compliance with the consent condition.

Privacy Screen

59. The Applicants refer to the Respondents admission that the privacy screen for the spiral staircase is not installed, as required by condition 15 of the 2001 Consent. The failure of the owners of 30 Abernethy Street, Seaforth, to take issue with the Respondents non-compliance is submitted as immaterial to whether the Respondents are in breach of the consent condition.

Respondents’ Submission

Stormwater

60. The Respondents formulate the stormwater issue as whether the stormwater system in place is outside of anything that could meet the description of collecting stormwater from paved areas and piping it to the harbour foreshore, as provided in condition 43 of the 2001 Consent. In support of this submission, the Respondents note:

1. Condition 43 is imprecise and cannot be read to require “every drop” of rainwater caught by the Respondents’ stormwater system to be discharged to the harbour;

2. Compliance with the condition can be achieved in different ways;

3. Condition 43 of the 2001 Consent gives Council a role, which infers flexibility in meeting the requirements of the consent condition; and

4. The purpose of the Respondents’ stormwater system is erosion control, in which condition 2 and 4 of the 2001 Consent is relevant.

61. Taking those considerations into account, the Respondents contend that the system is not outside the consent condition. The Respondents point to the oral evidence of the First Applicant, in support of the understanding that a flow dissipater and pump has been installed.

Privacy Screen

62. The Respondents accepted that they had not complied with the requirements of the condition 15. However, it was submitted that the intent of condition 15 was to the benefit of the occupiers of 30 Abernethy Street, Seaforth and there is no evidence of any complaint from them as to the non-compliance with the condition.

Findings on Issue 3

63. As to the issue of stormwater, I accept the Respondents’ construction of condition 43. Compliance with the condition is flexible and capable of being met in any number of ways. The requirement of the condition is that stormwater is collected and discharged to the harbour. The intent is not that all stormwater must pass from collection to discharge. The intent of the condition is to ensure that there is no impact on adjoining properties from the concentration of stormwater that occurs as a consequence of the carrying out of development of the land for the purposes of the dwelling and garage. The use of stormwater collected for domestic and firefighting purposes does not offend the terms or intent of the condition. All stormwater that is collected and not utilised is discharged to the harbour as required by the condition.

64. I find that the Applicants have not established that the Respondents’ stormwater system, as it exists, is in breach of condition 43 of the 2001 Consent.

65. With respect to the requirements of condition 15, the Respondents admit that the condition has not been complied with. I accept that to the extent that the condition remains outstanding that the Applicants have established that the provisions of the 2001 Consent as it relates to condition 15 is in breach of the requirements of s 4.2(1)(b) of the EP&A Act.

Issue 4 – Discretion

Applicants’ Submission

66. It is the Applicants’ position that there is a clear breach of s 4.2 of the EP&A Act and the Court should not exercise its discretion to refuse the relief sought by the Applicants. The Applicants contend that the Respondents’ pleas for discretionary relief should be viewed as the exception and not the rule, and in this case, departure from the rule is not appropriate.

67. The Applicants’ submissions rely on the authorities of Warehouse Group (Australia) Pty Ltd v Woolworths Ltd [2003] NSWCA 270; (2003) 137 LGERA 115 at [48] and Westfield Management Pty Limited v Gazcorp Pty Ltd [2004] NSWLEC 7; (2004) 135 LGERA 220 at [19] to support the principle of the significance, public importance and default position of enforcement of planning laws, that require uses to be carried out in accordance with the development consent, as required by the EP&A Act.

68. The Applicants accepted that different discretionary factors are applicable to the 2001 Consent Slab and the New No 26 Slab, however, in each case it results in the same answer, being the restraint of car parking until development approval is achieved.

69. In relation to the 2001 Consent Slab, the features that speak against the Court’s exercise of discretion were said to include the environmental impact of hard stand car parking, including safety, stability, and the amenity impacts of parking, including noise and lights, without the completion of the double garage.

70. In relation to the Respondents’ alleged discretionary factors, the Applicants made the following submissions:

1. The passage of time does not warrant the refusal of relief;

2. The inaction of the Council does not prevent the Court from making orders to remedy or restrain a breach of the EP&A Act;

3. The certification of the New No 26 Slab by the structural engineer does not state that the slab is capable of carrying vehicles, nor does it certify the Old No 26 Slab or the No 28 Slab; and

4. The lack of complaints by other members of the public does not warrant the refusal of the grant of relief.

Respondents’ Submission

71. In closing, the Respondents tendered a document titled “Terms of Undertaking”, that was accepted by the Court to be the Respondents offer and not an undertaking in force (the Offer). The Offer acts as an alternative to the Court making an order in accordance with s 4.2 of the EP&A Act, by way of summary, proposed that:

1. The Respondents are to, within 5 months of the Offer, apply to Council for development consent for hard stand car parking or parking in a garage or carport on the Old No 26 Slab and New No 26 Slab, and/or activate DA 2023/1481 (2023 Consent). This offer is conditional on the Applicants providing owners consent to the lodgement of the necessary development application;

2. In the circumstance that this Court finds that parking is not in accordance with the 2004 Consent, the Respondents are not to park on the New No 26 Slab until development consent is obtained; and

3. The Respondents undertake not to park on the Old No 26 Slab if the 2023 Consent is not activated within 5 months and any development applications are refused until such development consent is obtained.

72. The discretionary factors put forward by the Respondents as to why the Court should exercise discretion to stay any order in relation to the 2001 Consent Slab includes:

1. That there is limited environmental impact;

2. It has been used for 20 years without incident and there is no evidence that such a use presents a danger;

3. The Council’s position is that the parking does not present a danger, and it has not exercised its jurisdiction to intervene and restrain parking;

4. There is no contumelious conduct on the part of the Respondents, on the basis that they have imperfectly given effect to an agreement with the former owners of 26 Abernethy; and

5. The New No 26 Slab was certified by an engineer in 2007 as capable of carrying vehicles and the Old No 26 Slab was granted consent in the circumstances were the approved plans contemplated parking.

73. In relation to whether the Applicants should be required to construct the masonry walls to the storage room on 28 Abernethy, the Respondents submit:

1. There is a strong discretionary reason not to compel compliance on the basis that the Applicants seeks selective enforcement of the 2001 Consent;

2. An issue of public interest has not been raised by the Applicants, given the matter concerns non habitable space; and

3. The space is under the control of the owners of the 26 Abernethy.

74. As condition 15 of the 2001 Consent is submitted as being expressed in favour of 30 Abernethy Street, Seaforth. On this basis, the Respondents contend that the Court exercise its discretion to not require that work to be carried out.

Findings on Issue 4

75. Notwithstanding a finding of a breach of the EP&A Act, the Court retains a discretion as to whether to make any orders in connection with such breach: s 9.46 EP&A Act. Such discretion is expressed in wide terms.

76. The Court of Appeal in the seminal case of Warringah Shire Council v Sedevcic (1987) 10 NSWLR 335; (1987) 63 LGRA 361 at 339 (Kirby P) identified a number of guidelines to assist in the exercise of the discretion.

77. Having regard to the circumstances of this case, I consider that the relevant factors to be taken into account in the exercise of the discretion are:

1. The fact that what is sought is the enforcement of a public duty as opposed to a private right. The provisions of the EP&A Act are intended to benefit the public at large by ensuring that development is appropriately regulated and the merits of each particular application are fully assessed prior to any development consent being granted. In the circumstances of this case, that which the Council considered and for which the 2001 Consent related was different than the development that is now being undertaken, such that the impacts were never properly considered prior to the development being carried out.

2. The fact that the proceedings are brought by a private citizen as opposed to the Council. In this case, the Council has on a number of occasions undertaken inspections of the disputed development and has declined to take any action. Further, Council has granted development consent for a type of development consistent with what is currently being undertaken on the combined slab. This indicates that the Council is not wholly opposed to some form of development being undertaken on the combined slab.

3. That the complaint relates to a static development, that is, it is a constructed building. In this case, it is apparent that the carrying out of the unauthorised work was consistent with a loose agreement reached between two neighbouring owners working cooperatively so as to benefit them both. This loose arrangement was entrenched in the terms of an easement. Ownership of 26 Abernethy has since changed hands and the loose agreement is no longer considered beneficial to the present owner, albeit the new owners remain burdened by the terms of the easement. That being said, the unauthorised use of the combined slabs has been ongoing for many years and to some extent the Respondents have taken some steps to seek to regularise the use, yet to no avail. The continued use of the combined slab is capable of being rendered compliant.

4. That the intent of the discretion is, where appropriate, to soften the application of certain rules where a strict application may produce unjust results.

78. Whilst the totality of the breaches identified above are to be considered collectively, I consider that it is appropriate to also recognise that the discretionary considerations relating to the impact of the particular breaches must also be considered.

79. The breach of condition 15 relating to the privacy screen raises the issue of the impact on the property that was intended to be protected by such screening. It is to be inferred from the fact that the Council imposed the condition that there was considered to be the potential for an unacceptable impact upon the adjoining premises from the use of the spiral staircase. However, I also take into account that there is no evidence in this case that there has, in fact, been such an impact over the many years that the spiral stairs have been used. I also take into account that the enforcement of the condition is being sought by private individuals for whom the condition was not intended to benefit. In those circumstances, in the exercise of my discretion, I do not consider that it is appropriate to order compliance with the condition.

80. As to the structural elements of the slab as reflected in the area of the storage room, the evidence discloses that the slab is not structurally unsound. That is, whilst the requirements of the condition has not been met, the protection that the structural elements provide to the slab above have been met. The necessity for compliance is not required to ensure structural integrity. Accordingly, I do not consider it necessary or appropriate that the structure be changed merely to conform with the plans.

81. As to the masonry walls in the storage area, I also decline relief in the exercise of my discretion. The masonry walls, if constructed in accordance with the 2001 Consent would preclude access to the area by the Applicants in accordance with the agreement now reflected in the easement. Further, to the extent that it is suggested that the storage area suffers from ingress of water as a consequence of the lack of masonry walls, I am not satisfied on the evidence that such is the case. There was no evidence as to the source of the water ingress such that I could be satisfied on balance that the introduction of masonry walls would rectify the complaint. I therefore consider that the rectification is not warranted.

82. Notwithstanding my findings above, I do consider that in the circumstances it is appropriate that orders be made reflecting the unauthorised use of the combined slab for parking inconsistent with the provisions of the 2001 Consent as it relates to the 2001 Consent Slab and the absence of development consent for the use of the New No 26 Slab for car parking. Such an order is reflective of the public interest in ensuring that development is properly regularised in accordance with the requirements of the EP&A Act. However, as a use such as is being undertaken is a use that is capable of being regularised, I consider that it is also appropriate that the operation of such orders be suspended to enable the Respondents to seek to regularise that use. Such a suspension acknowledges that the use has been undertaken for some considerable time without complaint from the Council and the former owners of 26 Abernethy. Further, there is no compelling evidence of any environmental impact if the use continues for a further period to enable consent to be obtained.

83. In the circumstances, I consider a deferral for a period of 6 months to enable any such regularisation to occur and for compliance with any conditions required to met to be undertaken. If the Respondents do not take expeditious action, however, they will suffer the impact of the orders until such time as the use is regularised. The degree of inconvenience is in their hands.

Costs

84. The parties have requested that costs be reserved as the usual order that costs follow the event may be impacted by matters preceding the hearing of the matter upon which the parties wish to be heard. I will reserve costs.

Appropriate relief

85. The Applicants seek declarations and orders restraining the use of the combined slab otherwise than in accordance with the terms of the 2001 Consent. For the reasons that I have outlined above, I do not consider that there has been a breach of condition 43 as it relates to stormwater, nor do I consider that it is appropriate, in the exercise of my discretion to require compliance with condition 15 relating to the privacy screen to the spiral staircase, or the carrying out of work to the storage room below the slab. Therefore, the orders and declarations sought would operate to exceed the enforcement I consider appropriate in the circumstances of the case. The orders and declarations will be required to be modified to relate only to the use of the combined slab for car parking.

86. Further, it is inappropriate to limit the Respondents to the 2001 Consent. It is open to the Respondents to seek a fresh development consent to use the combined slab for parking purposes without the need to construct a garage over it, or some other configuration as is within the Respondents’ desire and with the Applicants’ consent. The orders and declarations will therefore be modified to reflect the broad availability of options to regularise the car parking use.

Conclusion and orders

87. For the reasons set out herein, the following declarations and orders are made:

1. The Court declares that:

1. The use for car parking by the First and Second Respondents of a portion of roof of the garage situated on 26 Abernethy Street, Seaforth, comprising the new slab of the garage roof approved by and constructed pursuant to the development consent granted to development application DA 63/04 for demolition of the existing dwelling and construction of a new dwelling and pool at 26 Abernethy Street, Seaforth, is unlawful as no development consent has been obtained and is in force for such use, in breach of s 4.2 of the Environmental Planning and Assessment Act 1979 (NSW);

1. The First and Second Respondents by themselves, their contractors, servants or agents have carried out development on 28 Abernethy Street, Seaforth other than in accordance with the development consent DA 34/01 granted by Manly Council on 20 June 2001 for demolition of existing dwelling and erection of a new split level dwelling and double garage, relating to 26 and 28 Abernethy Street, Seaforth, in breach of s 4.2 of the Environmental Planning and Assessment Act 1979 (NSW), in so far as they have carried out development being the use for car parking of the slab constructed in part on 28 Abernethy and in part on 26 Abernethy Street, Seaforth:

1. In breach of condition 1 of the development consent by failing to construct the garage over the slab as approved by that development consent; and

2. In breach of condition 67 of the development consent by not undertaking a final inspection.

2. The Court orders that:

1. The Respondents, their contractors, servants and agents be restrained from using the whole or any part of the concrete slab located at the street frontage of 26 and 28 Abernethy Street, Seaforth, otherwise than in accordance with a development consent granted for such use and in accordance with all conditions of such development consent, and an occupation certificate has been issued prior to such use commencing; and

2. The operation of Order (2(a)) is suspended for a period of six (6) months from the date of these orders.

3. Costs are reserved.

88. The matter is listed for mention before me at 9am on Monday, 28 April 2025 for the making of directions as to any application for costs.

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Decision last updated: 11 April 2025