Sutherland Shire Council v Signorelli Investments Pty Limited
[2003] NSWLEC 49
•03/03/2003
>
Land and Environment Court
of New South Wales
CITATION: Sutherland Shire Council v Signorelli Investments Pty Limited and Others [2003] NSWLEC 49 PARTIES: APPLICANT
Sutherland Shire CouncilFIRST RESPONDENT
Signorelli Investments Pty LimitedSECOND RESPONDENT
THIRD RESPONDENT
Monte Cristo Lounge Pty Limited
Paul John SignorelliFILE NUMBER(S): 41029 of 2002; 40122 of 1999 CORAM: Talbot J KEY ISSUES: Discretion :- exercise where development unlawful or contrary to previous court orders LEGISLATION CITED: Environmental Planning and Assessment Act 1979
Sutherland Shire Council Local Environmental Plan 2000 cl 17, cl 17(2), cl 17(3)CASES CITED: Seaton v Mosman Municipal Council and Another (1996) 93 LGERA 1;
Signorelli Investments Pty Limited v Sutherland Shire Council (2001) 114 LGERA 27;
Warringah Shire Council v Sedevic (1987) 10 NSWLR 335DATES OF HEARING: 10/02/2003, 11/02/2003, 12/02/2003, 13/02/2003, 14/02/2003, 17/02/2003, 18/02/2003 (written submissions) DATE OF JUDGMENT:
03/03/2003LEGAL REPRESENTATIVES: RESPONDENTS
APPLICANT
Mr C J Leggat (Barrister)
SOLICITORS
Abbott Tout
Mr T S Hale SC
SOLICITORS
The Law Firm of Solari
JUDGMENT:
IN THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES
41029 of 2002
40122 of 1999
3 March 2003Talbot J
- Applicant
- First Respondent
- Second Respondent
- Third Respondent
Introduction
1 The respondents in these two matters are responsible for the carrying on of a business known as Doltone House, a reception and entertainment centre at No. 223 Belgrave Esplanade, Sylvania Waters (“the premises”).
2 The principal building comprises two reception areas on the first floor. There is an undercroft or ground floor generally identified for use as a car park and other uses ancillary to the reception rooms on the first floor. The premises are located opposite dwelling houses. There is a council reserve at the rear of the premises and Foreshore Park adjoins the premises across a waterway. The reserve at the rear has been used over the years for the purpose of a parking area for the patrons using the function centre, although the regularisation of the use of that area has not been settled.
3 In matter No. 40122 of 1999 the Court made orders on 22 August 2001 whereby the respondents were required to undertake certain works, remove parts of the building constructed without consent and to submit to Sutherland Shire Council (“the council”), and thereafter comply with, a Management and Use Plan for the conduct of the business of a reception centre at the premises.
4 The orders made on 22 August 2001 were subsequently varied by further Court Orders dated 18 December 2001 and 16 August 2002.
5 The critical effect of the orders for the purposes of these proceedings is that the building comply with the Noise Emission Criteria imposed by the Liqueur Administration Board and that the respondents undertake and complete building works on the premises in accordance with a report by Renzo Tonin and Associates Pty Limited dated 26 June 2002 (“the Tonin Report”) and other works.
6 By notice of motion filed on 11 December 2002, pursuant to liberty to apply with respect to the implementation of the original Court Orders, the council, as applicant, seeks an order that the respondents be restrained from undertaking or causing to be undertaken any building work contrary to the orders made by the Court on 22 August 2001 and amended on 18 December 2001 and 16 August 2002. Furthermore, the council seeks an order that the respondents remove or cause to be removed within 30 days all of the building works at the premises contrary to the order that the building comply with the Tonin Report. The council seeks further orders. These orders may be generally described as particularisation of the works alleged to be carried on either without consent or contrary to the orders made in the proceedings.
7 The council has commenced separate proceedings (matter No. 41049 of 2002) seeking a declaration that the respondents have carried out development without prior development consent from the council and otherwise not in accordance with the orders in matter No. 40122 of 1999. Consequential orders are also sought in this matter.
8 In essence the council is seeking orders in the notice of motion that the respondent, within 30 days, carry out the work required by the orders made in matter No. 40122 of 1999 and demolish building works that are in purported compliance but not actual compliance with the Court Orders. The gist of the orders sought in matter No. 41049 of 2002 is that the respondents cease to use the ground floor for function activities and demolish unauthorised building works at the premises itself and also on the adjoining premises at No. 221 Belgrave Esplanade, Sylvania Waters (“the adjoining premises”) and on the council’s property at the side and rear of the premises.
9 There is no real dispute that there have been works carried out by the respondents without lawful authority either in breach of the orders made in matter No. 41022 of 1999 or without the benefit of development consent. The significant issue to be resolved is whether, in the exercise of the Court’s discretion, particularly after having regard to fire safety and adverse amenity issues, the Court should make orders whereby it allows works already completed to remain and to permit the respondents to complete the outstanding program of works in progress.
10 Apart from expert evidence of the work undertaken by the respondents and its relationship to the orders made by the Court in matter No. 40122 of 1999 and generally, the Court has heard evidence from local residents.
11 The residents’ complaint is not such that the respondents should cease operating altogether but rather that the activities be contained at the intensity or level of activity that prevailed prior to the carrying out of extensive renovations and improvements to the function centre facility at the premises. If both function rooms are operating at the same time there could be up to 700 people in the building.
12 The consequence of the respondents’ case would be that the Court varies order No. 2 (as subsequently amended), order No. 4 and order No. 6 made on 22 August 2001.
13 In general terms, what was previously an open undercroft below the building has been enclosed by the recent works. It was contemplated by the Tonin Report that the northern side of the undercroft would be closed in. However, the work of closing in along the northern elevation has been carried out to a different specification to that specified in plans forming part of the Tonin Report (“the Tonin Plans”). The rear of the undercroft along the southern elevation of the building has also been closed in. These works were not contemplated by the Tonin Report.
14 Furthermore, an outside area at the first level of the building at the western end has been re-developed by the construction of a concrete slab with landscaping over it. Access is gained to this area by doors at either end. The council claims that the re-development of this area at the western end of the building facilitates its use as part of the function centre in a way not authorised by any council consent or the Court Orders. There is also a complaint that three columns built as support for the concrete slab detract from the space otherwise available for car parking at the ground floor level.
15 The council submits that the work carried out since April 2001 has led to an intensification of use and has created significant and inappropriate environmental consequences. In such circumstances the council contends that there is a reasonable basis for making the orders sought in the notice of motion and in the separate amended class 4 application.
Discretion
16 Relying upon the concessions made by the respondents and, beyond that, the proof that work has been carried out contrary to the orders made in matter No. 40122 of 1999 or without development consent, the council’s case comes down to meeting the submissions by the respondents that the Court should exercise its discretion in their favour.
17 The relevant principles to be applied in the exercise of discretion, particularly in this jurisdiction, were comprehensively reviewed by the then President of the Court of Appeal in Warringah Shire Council v Sedevic (1987) 10 NSWLR 335, particularly at 339 – 341.
18 The discretionary power is wide and is not fettered by the Environmental Planning and Assessment Act 1979 (“the EP&A Act”). It cannot be said that all of the breaches established by the evidence in the present case are purely technical nor can it be shown that they will all have a beneficial effect on the environment. Some of the individual breaches might be “unnoticeable” but taken in combination the sum of the contraventions is significant. The issues raised include questions of fire safety, the amenity of the neighbourhood, traffic and parking concerns, intensification of use and the unlawful conversion of a dwelling house for commercial purposes.
19 The purpose of the EP&A Act is to provide for the orderly development of land and the council has a special responsibility under the legislation to regulate development within its area. There is, as Kirby P said in Sedevic, an expectation that normally those concerned in development and use of the environment will comply with the terms of the legislation. Otherwise, “a sense of inequity could then be felt by those who complied with the requirements of the Act or who failed to secure the favourable exercise” of the Court’s discretion. He emphasised that private advantage may be won by a particular individual which others cannot enjoy.
20 I find the above matters of principle to be compelling in this case.
21 It is worth noting that in Signorelli Investments Pty Limited v Sutherland Shire Council (2001) 114 LGERA 27, the Court was asked to adjudicate two appeals against the refusal of development applications in respect of the premises. In the first of the two appeals Signorelli Investments Pty Limited was seeking approval for alterations and additions to the existing reception centre in circumstances where the alterations and additions had already been undertaken without the benefit of development consent. The Court was not disposed to grant development consent retrospectively for the reasons explained at pp 31–2. Nevertheless it gave consideration to the development application on the basis that a consent could be given for the future use of that part of the building which had been constructed or altered with development consent. The development application was refused. The issues raised in the earlier class 1 proceedings do not arise for further determination in this case but a perusal of the observations and findings in the earlier case assist to place the present complaints in a relevant context when it comes to the exercise of discretion.
(1) Glass swinging doors in the southern entrance to the eastern car park
Findings in respect of the alleged breaches
22 Order No. 2 made by the Court requires that the respondents undertake and complete building works “in accordance with” the Tonin Report. The Tonin Plans show the southern entrance to the eastern car park as open whereas glass swinging doors have been installed at a set back of about three metres from the southern extremity of the building. The respondents claim that these doors were installed to achieve a more satisfactory acoustic result but in any event are exempt development under the provisions of cl 17 in Sch 4 of the Sutherland Local Environmental Plan 2000 (“the LEP”) and, accordingly, do not require development consent.
23 Exempt development is defined by cl 17 of the LEP as being development of minimal environmental impact that does not otherwise offend criteria in cl 17(2) and cl 17(3). Schedule 4 dictates that to be exempt development the works must be non-structural such as, inter alia, partitions that do not provide structural support to any part of the building and must not compromise fire safety or affect accessibility to fire exits.
24 Paul John Signorelli has given evidence that the doors were installed for security to the car park area which he says has been designed as a five star presentation type car park as it is the location in which guests will farewell the bride and groom and further where guests will wait for their taxis to arrive. Acknowledging that the doors currently swing in towards the car park, Mr Signorelli says that they are to be re-hung so that they swing outwards. The Court relies on the expert evidence that in order to meet fire safety requirements the doors should swing in the direction of travel.
25 In order to determine whether the doors have been built in accordance with the Tonin Report, it is necessary to have regard to the terms of the report and the supporting plans in the context of noise emission criteria (Seaton v Mosman Municipal Council and Another (1996) 93 LGERA 1 at p 20). Dr Tonin says that these doors achieve a better acoustic result. The carrying out of additional work in the form of these particular doors is not regarded by the Court as a departure from the plans but rather as additional work to supplement the proposals demonstrated by the plans. In my view, they are in conformity with or consistent with the general nature of the works proposed. The addition of the doors is not such that the Court can conclude they do not accord with the Tonin Plans. I am not prepared to hold that the doors have been constructed otherwise than in accordance with the Tonin Report as required by order No. 2. The Tonin Report does not, in terms, preclude the installation of the doors.
26 The Court is satisfied that, subject to the doors being re-hung (as foreshadowed by Mr Signorelli), in order to meet fire safety requirements, the construction of the doors adjacent to the southern entrance to the eastern car park will be exempt development as non-structural internal works. The criteria in cl 17(2) and cl 17(3) of the LEP would not apply to those doors. However, whilever the doors swing otherwise than in the direction of travel they are not exempt development and must be removed.
(2) Two glass swinging doors at the northern entrance to eastern car park
27 The Tonin Plans show glazed aluminium framed bi-fold doors or sliding doors with acoustic seals and emergency exit doors at the northern entrance to the eastern car park. The plans note that the bi-fold doors are to be left open “whilst [the] function centre is not in operation”. The emergency exit doors are described as solid core timber egress doors with acoustic seals. In lieu of the works described in the Tonin Plans the respondents have constructed a 1.5 metre fire exit door and swinging doors in an opening 2.4 metres wide. In addition, the respondents have installed 600mm fixed side and centre glass panels adjacent to the doors. The glass panels were not shown in the Tonin Plans.
28 The respondents concede that the doors as built require development consent. Although they are narrower than the doors specified in the plans the respondents submit that the works substantially comply with the Tonin Plans and therefore can be regarded as having been constructed “in accordance with” the plans (Reg. v The Justices of the County of London (1889) 24 QBD 341 at p 345). The respondents are prepared to increase the width of the doors to three metres if the Court so requires on the ground that the increased width may enhance the ability to park cars in the eastern car park in a timely fashion.
29 The Court finds that the doors should not be regarded as being generally in accordance with the plans referred to in the Court’s Orders because the dimensions and function are clearly distinguishable. Furthermore, as development consent is required, they have been installed contrary to the provisions of the EP&A Act. After having regard to the parking and fire safety issues that arise and are more fully dealt with later in these reasons the Court is not prepared to exercise its discretion in favour of the respondents.
30 This breach must be rectified and the work is to be carried out strictly in accordance with the Tonin Plans.
(3) The garbage area
31 The applicant’s evidence confirms that part of the western wall of the garbage area has not been constructed and that a wall, which is not shown in the Tonin Plans, divides the garbage area into two sections. It is also alleged that the area designated as the “garbage area” is not being utilised solely for that purpose.
32 In addition to the requirement of order No. 2, namely that the building works be undertaken and completed in accordance with the Tonin Report, order No. 6 expressly requires the respondents to construct a “garbage storage area” generally in accordance with the Tonin Plans “for general garbage, bottles and paper in the ground floor of the premises with access thereto not to come from the Council Reserve”.
33 The access to the garbage area is presently achieved at one end through a tilter door in its eastern wall immediately south of the swinging doors referred to in (1) above but still within the building. Access is also provided through an area to the west of the garbage area using a section of the building designated for “carparking”. The latter access is only available at present pending either completion of the western wall or the installation of a one hour fire rated roller door at that door if the Court approves it. Direct access from the garbage area to the council reserve at the rear of the building is denied by a metal louvre wall that has been constructed at the southern extremity of the building across the rear of the garbage area. No relevant complaint is raised by the council in respect of the louvred metal wall.
34 The respondents seek approval to install the one hour fire rated roller door in lieu of that part of the western wall of the garbage area that has not been built. If approved, the Court’s Orders must be varied accordingly pursuant to liberty to apply provided in order No. 14.
35 The respondents claim that the internal wall (even if it is not in accordance with the Tonin Plans, which is not admitted) is exempt development. The use of part of the garbage area for purposes such as the storage of dirty linen and disposable catering items is consistent with the general intent that the area be used as a garbage area.
36 The Court is satisfied that the alleged unauthorised work comprising the internal wall within the garbage area is exempt development and does not require development consent. Moreover, it is generally in accordance with the Tonin Plans.
37 It is the council’s contention that, as a matter of construction, because garbage disposal vehicles will use the council reserve in order to gain access to the garbage area through the tilter door opening provided in the eastern wall, the garbage storage area access is contrary to the terms of order No. 6. Order No. 6 was made at the time when the general location of the garbage area was identified in its present location by the Tonin Plans. The internal opening for a roller door out of the garbage area through an eastern internal wall is shown in the Tonin Plans. The denial of direct access from the council reserve has been partially achieved by the construction of the metal louvred wall along the southern side of the garbage area abutting the southern alignment of the building.
38 The installation of the swinging doors adjacent to the opening into the garbage area appears to have physically foreclosed any prospect of access to the garbage area through the northern entrance under the building and across the car park. Contrary to the respondents’ submissions the Court does not find it difficult to accept that the intention was for garbage disposal vehicles to enter the building across the northern frontage and then traverse the car park to access the garbage area. The council submits that as a matter of practicality garbage could be transferred from the garbage area to the street frontage by the use of smaller mobile receptacles. This would be consistent with the terms of order No. 6.
39 Using a common sense approach the Court construes the prohibition on access from the council reserve in order No. 6 as being a restraint on the use of the council reserve as access for the purpose of delivery and removal of garbage from the garbage area. The present configuration of the garbage area ensures that garbage can be delivered to the garbage area internally. The most practical option for the removal of garbage by the council or any garbage contractor is for the vehicle to enter the building through the council reserve. However, if the right to use the council reserve is constrained then an alternative solution such as that suggested by the council in submissions will have to be explored and implemented. The Court is not prepared to vary order No. 6.
40 In the context of the garbage area being surrounded by walls and doors which recognise the requirements for fire safety, the Court does not agree with the council’s contention in final submissions that the internal wall to the garbage area should be one hour fire rated. The Court agrees to vary its orders to accommodate the installation of a fire rated door in the uncompleted western wall of the garbage area.
(4) Reduction of the width of the opening from the central southern car park to the western car park
41 The council’s complaint is that the opening leading from the central southern car park to the western car park, as constructed, is only 2.65 metres wide whereas the Tonin Plans scale the width of the opening at approximately five metres. Moreover, an internal wall along the southern edge of the central car park has not been built.
42 At the time the Court undertook its view of the premises there was some contention as to whether a pillar, attached to an internal wall running north to south, was new work. The effect of the wall is to narrow the opening between the central car park and the western car park. The uncontroverted evidence now is that the pillar has been in existence since 1996 although there is some doubt about whether it has been built in accordance with any approved plan.
43 The Court has heard no evidence or argument that would persuade it to hold that the small wall extension is not exempt development.
44 The omission of the internal section of wall has, in the Courts view, no conceivable impact and may be ignored. It does, however, lend some credence to an over arching submission by the council that the illegal works facilitate the provision of additional and alternative storage space that in turn leads to an intensification of the entertainment use elsewhere in the building. There is evidence that the whole space has at times been used for storage. Nevertheless, the respondents acknowledge that the internal wall will be constructed along the south side of the central car park.
45 An application has been made to vary the Courts Orders to allow the addition of a further roller door to permit access from the central car parking area to a grease trap. Access to the grease trap in the manner proposed is reasonable.
(5) Enclosure of the ground floor along the southern elevation of the premises
46 The Tonin Plans do not contemplate that there will be a wall constructed along the southern elevation of the undercroft. A large part of the ground floor southern elevation has been enclosed. In addition, the southern entrance to the western car park has been enclosed by glass doors measuring 2.5 metres wide, together with approximately 600mm fixed side glass panels. A garden bed has been constructed partly on the council’s land.
47 The respondents seek to vary order No. 2 made by the Court on 22 August 2001 so as to permit the following:-
- (i) the existing wall across the southern elevation of the ground floor;
- (ii) the existing glass swinging doors (approximately 2.5m wide with glass panels (approx 600 mm)) in the southern entrance to the western car park;
- (iii) the existing glass window (approximately 3.3m wide) in the southern wall to the western car park; and
- (iv) the existing roller door located approximately in the middle of the southern elevation of the ground floor.
48 The council opposes the order proposed by the respondents on the basis that the wall referred to in (1) above has the effect of enclosing a storeroom and an area in the south-western corner comprising an alcove with three walls. This enclosure provides extra floor space within the building and increases the potential storage area thereby contributing to the capacity to increase the intensity of the use of the premises. According to the council’s submission, the concept of intensity of use is not measured solely by the number of people using the premises. The measure of intensity needs to factor in the likelihood of repeat business in the future and the potential for an increase in turnover.
49 The evidence is that the existing glass swinging doors in the southern entrance to the western car park swing inwards. The respondents’ fire safety consultant, David Jones, agrees that if the doors are re-hung to swing outwards that may satisfy the fire safety control requirements by allowing the doors to swing in the direction of travel. However, that would necessitate the doors swinging out over the council’s land. The Court has been informed by Mr Legatt that the council does not consent to a use that requires the placing of bollards on the council’s reserve in order to prevent cars from parking in the path of a fire exit. If the doors are left to swing inwards and even if a device is installed to maintain the doors in the open position while the building is in use that would be contrary to the Deemed to Satisfy provisions of the Building Code of Australia (“the BCA”).
50 The glass window in the southern wall to the western car park assists in the creation of the three-sided room or alcove referred to above. The primary contention by the council in this regard is that in addition to the creation of further storage space there is significant impact on at least one car space.
51 A roller door facilitates access from the council’s land to the storage area (referred to in (4) above) formerly designated as car parking. The evidence is that the area has been used for the storage of tables, a forklift and kitchen supplies. A further external door adjacent to the freezer in the south-eastern corner of the building also relies upon access across the council’s land. The council asserts that the door located near the freezer is too narrow to conveniently permit deliveries, particularly where goods are delivered on pallets.
52 Timothy Anthony Vanderlann, a Development Assessment Officer (Building) employed by the council, says that the full enclosure of the car park reduces the fire safety of occupants within the building by increasing the potential fire intensity containing the heat, smoke and fire within the enclosure. This, he says, is likely to adversely affect the fire egress paths of travel through the car park.
53 There is a direct conflict between the council’s primary witness in relation to fire safety, Mr Vanderlann, and the respondents’ fire safety consultant, Mr Jones. Mr Vanderlann is specifically concerned with the overall functionality of fire egress from the second storey function centre in a number of respects, particularly as a consequence of the full enclosure of the car park. Mr Jones does not share the concern expressed by Mr Vanderlann. Although he agrees that any restriction makes it harder for persons to egress from the premises, it is his opinion that adequate egress is provided. He even goes so far as to suggest that the enclosure of the ground floor could limit the fire growth by restricting the supply of oxygen. He further suggested that the problem with the doors swinging over the council’s property at the rear of the premises could be overcome by recessing the doors or by incorporating a requirement into the Management and Use Plan that the doors be locked open during operation of the centre. He regards the provision of a permanent opening as an acceptable management response.
54 The respondents argue that in accordance with Mr Jones’ evidence paths of travel could be defined by ropes and temporary bollards and, if necessary, by signage, including carpet guides to direct patrons to paths of travel for egress in the event of a fire. Notwithstanding the presence of up to 40 cars parked in the car park at any one time, including stack parking, Mr Jones contends that staff could be readily trained to place the bollards or ropes into position in a short time without requiring any special skills.
55 The differences of opinion between Mr Vanderlann and Mr Jones have not been resolved. The Court is not convinced, on the balance of probabilities, that there will be a satisfactory means of egress from the building in the event of fire through the southern wall of the western car park at a time when the car park is filled to capacity.
56 Mr Legatt makes the telling submission that the only analysis of the fire safety of the premises carried out by Mr Jones and by the council is in terms of the Deemed to Satisfy provisions of the BCA. There has not been any performance or alternative solutions analysed or presented to the Court by either party. It is not for the Court to resolve a problem for the respondents which was created by the respondents.
57 Without the benefit of further analysis, the Court concludes that a better fire escape opportunity for patrons can be provided if the southern elevation is not enclosed by the illegal works, particularly in the southern section of the western car park. Furthermore, there could be improved smoke and heat dispersion. Whilever doubts remain about the overall fire safety of the building the Court is not disposed to exercise its discretion in favour of the respondents in relation to unlawful works which may contribute to that concern. Even if, as Mr Jones contends, the unlawful works may not contribute to an increase in the fire safety issues it is the case nevertheless that there are still fire safety issues with the premises. Mr Jones’ opinion, namely that the unlawful works may not contribute to the fire safety issues must be considered in the light of the fact that he did not identify the unauthorised works until he was cross-examined by Mr Legatt.
58 The Court accepts the evidence of Mr Vanderlann that he has genuine concerns with the overall functionality of the fire egress from the building and that these concerns have not been fully addressed.
59 The illegal works described in par 47, namely (i) to (iv) must be removed.
60 The council is entitled to an order that any development that encroaches onto its land without consent by the council, either as owner or the consent authority, be removed. Although superficially minor, the garden and plantings made along the southern elevation fall into this category.
(6) Room constructed under the south-western fire stairs
61 A small room has been constructed under the fire stairs in the south-western corner of the premises. A 3.3 metre wide glass window is provided in the southern wall. A number of double power points and plumbing fittings have been installed. The respondents concede that the glass window in the southern wall was not permitted by the Court Orders or by any development consent. The respondents seek to vary the existing order No. 2 so as to permit the room with the electrical and plumbing fittings to remain. The applicant opposes the making of an order as requested by the respondents because the alleged illegal window assists in the creation of a three-sided room which has the potential to remove at least one car parking space. A temporary plywood wall constructed in order to secure the building and enable the builders to store their tools and equipment has been removed.
62 Mr Signorelli has told the Court that the electrical and plumbing installations are to provide services to this section of the premises. He says electricity and water supply is needed in the car park for various reasons, including the cleaning of the floor. It is intended that the storage area will be used for the keeping of small items of equipment needed for the functioning of the building and, in particular, cleaning materials and appliances. Mr Vanderlann is concerned there will be a fire safety risk due to the conflict between the works and vehicle parking spaces, vehicles parked under the building and the safe travel paths required to exit the area. Nevertheless, his evidence does not address any specific car space adjacent to the room in question.
63 Apart from the window in the southern wall the Court is satisfied that the other works in this irregular shaped room are exempt development.
(7) Additional steel columns and concrete slab
64 The Tonin Plans show a structure comprising steel columns, supporting 20mm FC sheeting, at the western end of the first floor of the premises whereas a concrete slab has been built in that area. The concrete slab is supported by a number of steel columns. It is alleged by the council that additional steel columns have been installed to support the concrete slab. Neither the additional steel columns nor the concrete slab appear on the Tonin Plans. The council’s witnesses say that the addition of the steel columns may have an impact on the number of cars that can be parked in the western car park.
65 The respondents Project Manager for the building works, Ian David Southgate, states that the reference to the steel columns is an indication that the columns would be built although the precise location was not specified. He says the steel columns were necessary to support the new area being constructed regardless of whether that area comprised FC sheeting or a concrete slab. Colin Reginald Charles Nicholson, a Consulting Civil and Structural Engineer, prepared the engineering drawings in relation to the slab and supporting columns. He has given evidence that he would not have taken the risk to install FC sheeting as shown on the plans on the existing columns. The provision of a concrete slab in lieu of FC sheeting did not, in his opinion, require extra columns.
66 Mr Signorelli has explained to the Court that the concrete slab was installed instead of the FC sheeting at his request after discussions with the engineer, builder, landscaper and acoustic consultant who all indicated to him that a concrete slab would achieve an all-round better result than the FC sheeting. Furthermore, he has been advised by Mr Southgate that although the columns may not be in the exact location as shown on the Tonin Plans, they have been repositioned in order to ensure that the car parking requirements of the Court’s Orders are maintained. There is no serious challenge to the evidence by Mr Signorelli in this respect.
67 The respondents seek to vary order No. 2 so as to permit the steel columns to remain in their present location and to permit the concrete slab to remain as constructed.
68 Although there is conflicting evidence the Court is satisfied, on the balance of probabilities, that the columns have been located in a position that do not adversely affect the availability of car parking spaces. Furthermore, the Court accepts that the additional columns would have been necessary to support a structure in accordance with the Tonin Plans. Both the respondents’ consultant Town Planner, Nicholas Jeradowitch and Traffic Engineer, Craig Thomas McLaren, are satisfied that the valet parking layout is a workable one and that there is no reduction in the number of cars that can be parked on the premises as a consequence of the installation of the additional columns.
69 It is the respondents’ position that the choice of a concrete slab as opposed to FC sheeting is not in breach of the Court’s Orders as the works were carried out “in accordance” with the Tonin Plans so as to achieve the relevant noise emission criteria. Moreover, the respondents submit that the difference between the two is of such a minor nature as to be substantially in accordance with the plans. It is nevertheless clear that the concrete slab has been constructed contrary to the orders made by the Court and without development consent.
70 The council’s concern is that the construction of a more substantial floor to the western end of the first floor gives rise to the expectation and risk that the area will be utilised as ancillary to the adjoining function room. The Tonin Plans show an acoustic access door 1.8 metres high x 0.82 metres wide at the northern and southern extremities of the area over the concrete slab whereas full size doors have been installed. The applicant submits that the construction of doors at a greater height than doors specified in the Tonin Plans adds to the suspicion of the intention to use this area for entertainment purposes. Although the respondents seek to allay the council’s suspicion in this regard by suggesting that a hob could be installed to each of the doors in order to discourage direct access by patrons to this area they have been constructed otherwise than in accordance with the Tonin Plans.
71 The overall result in this area is that the extension cannot be regarded as being in accordance with the Tonin Plans. In the Court’s opinion, the non-compliance can be overcome by reverting to the doors as specified in the Tonin Plans, in which case the concrete slab can remain.
(8) Two glass swinging doors in the northern entrance to the western car park
72 Contrary to what is shown in the Tonin Plans there are two glass swinging doors in the northern entrance to the western car park 1.5 metres and 2.4 metres wide respectively with approximately 600mm fixed side and centre glass panels.
73 According to Mr Jeradowitch, the change in the door type is of no consequence and has no adverse impacts. The bi-fold doors prescribed were, in his opinion, not practical and involved additional and unnecessary cost without any benefit. He recommends that the swinging doors be permitted to remain. Again, the respondents seek an order to permit the existing two glass swinging doors to remain.
74 It is the council’s case that the doors restrict access for car parking and render the western car parking area less inviting to patrons arriving by car due to its physical presentation as a room of the building rather than a car park.
75 It is conceded by the respondents’ expert witnesses that additional time will be required to park cars as a consequence of the narrower opening but they dispute that the additional time required will be significant, particularly in circumstances where valet parking attendants are positioning the cars. Whilst Mr McLaren says, on behalf of the respondents, that he generally regards three metres to be the minimum opening that he would find acceptable, an opening of 2.4 metres for valet parking is not, in his view, to be regarded as significantly different.
76 In order to cover the peak load periods Mr McLaren estimates that between four and six attendants may be required to park cars. Overall, the difference between having an opening of 2.4 metres as opposed to the preferred three metres could, in Mr McLaren’s opinion, result in an additional five minutes to park all of the cars under the building if valet parking and stack parking is used.
77 After listening to the whole of the evidence and placing the evidence of Mr McLaren at its highest the Court has reached the conclusion that the narrowing of the opening to the car park now demands that valet parking must be used on all occasions. It is not only a question of the time involved but also of the prospect of damage to vehicles unless driven by a person who has the relevant experience of manoeuvring in the confined spaces involved.
78 The breach must be rectified and the work carried out strictly in accordance with the Tonin Plans.
(9) The height of the middle wall in the western elevation
79 It is alleged that the middle wall in the western elevation of the building is constructed 2.2 metres high whereas it is shown in the Tonin Plans as 600mm high.
80 The respondents concede that the additional height of the wall was not permitted by the Court’s Orders or by any development consent. It is contended nevertheless that it ought to be permitted to remain.
81 The applicant’s case is that the increased height of the wall adds to the amenity of the use of the area over the concrete slab. It has also been suggested that the increased height of the wall makes it difficult for outside observers to detect any future illegal use of that area. The council’s Senior Development Assessment Officer, Jeffrey Thomas Irving, says that with the increased height of walls and the access available from the function room through the two doors located on the northern and southern sides will allow people to congregate outside the building, for example, for the purpose of smoking. He also says that it would be impossible or very difficult for the council to police the use of this area.
82 If the work had been constructed in accordance with the Tonin Plans there would be physical restraints on the opportunity for such use because of limited door heights, visibility from the street and the ability to hear activities from points external to the site. In fairness, the evidence of Mr Irving so far as potential use is concerned is based on conjecture.
83 On the other hand, Mr Signorelli says that he has no intention of using the landscaped area for any part of the function operations. He does not intend to use it as a balcony for patrons to congregate or to expand the function room into that area. He reiterates that it has always been his intention for that area to remain as landscaping, in accordance with the Court Orders. He supports the construction of the concrete slab and the higher wall on the basis that they will achieve a better end result, without adverse impact.
84 Even if there is no identified direct adverse impact as a consequence of the increased height of the wall it nevertheless needs to be taken into account in the context of and as part of the circumstances where the respondents have proceeded to carry out a number of works without legal authority. The Court is not persuaded to exercise its discretion in their favour in respect of this wall.
(10) Fittings in the north-eastern corner of the eastern car park
85 It is alleged by the council that the north-eastern corner of the eastern car parking area has been fitted with plumbing and power points allegedly for the purpose of serving coffee to patrons waiting for transport. The council’s Environmental Compliance Officer, Adam Stephen Markham, gave evidence of a conversation with Mr Signorelli on 20 November 2002. Mr Signorelli told him that guests would wait for transport in this area and would be served coffee before they left.
86 In his sworn evidence Mr Signorelli denies that the services were installed for the purpose of serving coffee to patrons. Instead he asserts that the services have been installed to enable the maintenance of the car park area in the same way as the electrical and plumbing fittings referred to in (6) above will be used. The Court accepts that the fittings are exempt development and that, accordingly, no development consent is required. Any inconsistency with the plans is not such that the case has been made that they are not in accordance with the Tonin Plans.
(11) The storage area at the southern end of the ground floor
87 Order No. 4 requires the respondents to remove the storage area at the southern end of the ground floor of the building.
88 Mr Signorelli has conceded in evidence that the area is still being used for storage at this stage because the valet car parking area has not been completed. The Court accepts his assurance that when the valet car parking area is completed the items currently stored in that area will be removed.
(12) Entry to the eastern foyer
89 Order No. 4 requires that the respondents close the eastern most entry to the staircase foyer on the ground floor. This has not been done.
90 It is the council’s case that if the door is left in position and locked there will be confusion and congestion at the bottom of the stairs in the event of a fire. Furthermore, the doors swing over the boundary into the council’s reserved land at the east. Moreover, Mr Irving says that the result of the replacement of the door with a sound attenuated wall would be to prevent convenient patron access from the premises onto the adjoining public reserve and would facilitate noise attenuation. The retention of the doors would be contrary to that objective. They would, in his opinion, facilitate the commercial use of the public land by patrons.
91 The respondents suggest that the purpose of closing off the door can be achieved by maintaining it in a locked position. Mr Signorelli explains that the doors are glazed, that they remain locked and are acoustically sealed. He suggests that if the doors are left as they are they would provide another means of egress from the building if necessary.
92 Mr Vanderlann says that if the glazed door to the courtyard remains locked then it cannot be relied on as another means of egress from the building in an emergency. The Court agrees that the purpose of order No. 4 in respect of this door and entry will not be achieved by merely causing the door to be locked.
93 The Court has not been persuaded that there is any justification for maintaining this entry to the building contrary to order No. 4.
(13) The roller door in the eastern wall of first floor kitchen
94 Mr Signorelli acknowledges that the roller door in the eastern wall of the first floor kitchen has not been closed off and replaced by a solid wall. He explains that until the garbage area was completed this door access was used for the removal of garbage from the kitchen area. As the garbage area is now complete he says that the doorway is not being used and a solid wall will be constructed in the door opening.
95 The Court observed on the view, and it appears not to be in dispute, that a single sheet of solid material has been installed in the door-opening. The roller door remains in place. Even during submissions on behalf of the respondents Mr Hale SC continued to cavil with the prospect of the removal of the roller door. This must be done in order to comply with the Court’s Orders. There is no justification for it to be maintained.
(14) Building works and landscaping on the north-eastern part of the council’s land
96 Mr Signorelli concedes that the sandstone wall along the eastern boundary of the courtyard on the council’s property has only been partially demolished pursuant to the Court Orders. Lighting piers have not been removed. Moreover, he concedes that the brick wall along the southern boundary has not been reduced to achieve a maximum height of 550mm.
97 A submission was made to the council to maintain these items in their current state. According to Mr Signorelli, this submission was rejected in November 2002.
98 Mr Signorelli contends that the maintenance of the lights on the piers would improve security and safety for people using the access handle to the council’s reserve. Otherwise, there is no justification claimed for retention of these works.
99 In the context of consent orders it is difficult to understand how the respondents can now argue that the works remain and that, in the exercise of the Court’s discretion, no order be made in these proceedings. The Order must be complied with.
(15) Removal of brickwork
100 Items of brickwork noted by Mr Markham as being constructed without approval have been removed since he swore his affidavit on 11 December 2002.
(16) Walls in the south-eastern corner of the eastern car park
101 Two sections of wall have been constructed in the south-eastern corner of the eastern car park, providing additional storage space. Mr Jeradowitch explains in his affidavit that the walls are intended to screen the entry door to the staff toilet from view of the valet parking area and to form a corridor to the nearby fire egress in the southern wall adjoining the freezer. He says the walls do not impact on parking spaces or access for vehicles nor do they compromise fire safety. Furthermore, he says, there has not been any reasons provided to him as to why they should not remain. In any event, the subject walls are a non-structural internal partition and, in his opinion, accord with the definition of exempt development as they do not result in any increase of usable floor space or impact on fire safety. The Court agrees with this assessment.
102 The applicant relies on this provision of additional storage space to reinforce the submission referred to earlier regarding the propensity to facilitate intensity of the use of the premises. Even if the applicant is correct the Court is not disposed to make any order in relation to these walls, which do not require development consent.
(17) The door in the eastern wall adjacent to the freezer
103 The door in the eastern wall adjacent to the freezer has been built in a wall described in the Tonin Plans as an aluminium, framed, glazed, infill wall. The council’s complaint is that this door swings over the boundary onto the council’s land. The council does not consent to the door opening in such a manner. Furthermore, it says the presence of the door in that location facilitates (albeit inadequately) the use of the council’s property for deliveries to the building and, in particular, to the freezer. The respondents reject the submission that the subject door swings over the boundary and hence over the council’s land.
104 However, the principal concern of the council in regard to this access is a complaint that vehicles delivering goods to the premises will use the council’s land for access without permission. If the door remains, contrary to the Tonin Plans, that is a justifiable complaint. The door should be removed.
(18) The adjoining premises
105 The adjoining premises were used as a private dwelling house until a recent purchase was made on behalf of the respondents.
106 The respondents concede that works comprising a wall linking the premises with the adjoining premises, a garage door at the rear of the adjoining premises and the closure of the garage on that property along the frontage to Belgrave Esplanade have been carried out without consent.
107 The applicant seeks the following orders in matter No. 41049 of 2002 in respect of the adjoining premises:-
8. An order that the Respondents by themselves, their servants, agents or assigns be restrained from using, causing, suffering or permitting to be used the premises known as No. 221 Belgrave Esplanade, Sylvania Waters being Lot 500 DP 533882 (“the adjoining premises”) for purposes of commercial premises and/or use associated with the function centre at the premises without the prior development consent of Council, including storage of shipping containers in the rear yard;
10. An order that the Respondents by themselves, their servants, agents or assigns demolish or cause to be demolished and remove:-9. An order that the Respondents by themselves, their servants, agents or assigns be restrained from carrying out any development requiring development consent at the adjoining premises without prior development consent;
- (a) the brick wall constructed in a western direction from the northern façade of the premises linking to the adjoining premises;
(b) the garage wall and doors at the southern boundary of the adjoining premises constructed adjacent to and as an extension of the southern wall of the ground floor area of the premises;
(d) the brick infill into the garage door of the adjoining premises on its northern façade with the garage door [to] be reinstated.(c) …
108 Following discussions with the council in relation to the usage of the adjoining premises, a development application was lodged with the council for consent to the refurbishment of the residence, temporary storage within the residence and two storage containers. A third shipping container has subsequently been placed on the land. The development application was refused in April 2002.
109 A further development application lodged with the council this year seeks consent to demolish the existing residence and to construct commercial office suites.
110 The respondents have requested that the wall and garage door closure be permitted to remain for a period of 12 months, with liberty to apply, pending the determination of the latest development application.
111 Alternatively, they claim the wall should be permitted to remain as there is no town planning issue in that regard. Although they concede the garage door at the rear of the adjoining premises also requires development consent, it is requested that it be permitted to remain, pending determination of the development application.
112 Mr Markham’s evidence is that a small deck and porte cochere over the front doorway of the adjoining premises have been modified and extended without any formal approval. He also notes that three shipping containers have been placed at the rear of the adjoining premises. One of these containers has two circular air vents protruding from the roof.
113 Mr Juradowitch says that he has been advised that the shipping containers are predominantly for temporary storage and have been on-site for more than 12 months. He points out they are not visible from the street, public areas or neighbouring dwellings. Whilst acknowledging that shipping containers in this location are not an appropriate permanent storage solution, his opinion is they have not generated any significant adverse environmental impacts. He has been further advised that the respondents are actively seeking an alternative accessible location and suggests an appropriate solution may be to allow them to remain on-site for a period of six months to provide sufficient time to move them to a more suitable location. Mr Signorelli states in his evidence that in the short-term he arranged for the installation of the shipping containers for the purpose of storing materials necessary to the operation of the premises. He says they also contain some of his personal belongings, which are to be stored there until he moves house.
114 It is submitted by Mr Hale that the Court should exercise its discretion not to make orders in the class 4 proceedings in respect of the adjoining premises, pending the determination of the most recent development application.
Conclusion
115 The Court is satisfied that the respondents have shown they have little regard for the law. Development has been carried out in such a way that their own commercial interests clearly predominate over other responsibilities. The use of the ground floor of the building, as now proposed, has a significant potential for conflict. For example, on the one hand, the respondents say the area will be used to farewell a bride and groom and will afford space for patrons to wait for taxis while, at the same time, it can be reasonably expected that the area will be stacked with parked cars. They continue to regard and physically use the council reserve at the rear of the premises as land that can be used for the purpose of the business.
116 While some of the complaints may be regarded as trivial when regarded in isolation, taken as a whole the works are to be properly viewed as an overall attempt to maximise the use of the premises for commercial purposes without regard to the requirements of the law and, in particular, the EP&A Act.
117 I have enunciated the Court’s findings in respect of each of the individual matters referred to and explained above. The consequence is that the Court has determined that some work has been undertaken otherwise than in accordance with the Tonin Plans and the Tonin Report. Moreover, development that is not exempt development has been carried out at the premises without development consent.
118 The alterations and additions to the adjoining premises and the use of the premises in connection with the business of Doltone House are unlawful.
119 The council is entitled to an order that illegal work be demolished and unlawful use be restrained. It is nevertheless appropriate for any order for demolition of illegal works at the adjoining premises to be deferred, pending determination of the development application. The Court is prepared to allow six months for this to occur. However, the illegal use of the adjoining premises for commercial purposes must cease forthwith.
120 The council has been successful in both proceedings and would, in the absence of some exceptional circumstance, be entitled to the favourable exercise of the Court’s discretion in respect of any costs order.
121 The parties are directed to bring in draft orders that reflect the above findings within 14 days. Either party is granted liberty to apply for the purpose of settling the orders. Application may be made on two days’ notice but only during the abovementioned period of 14 days.
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