Trenwith & Ors v Sutherland Shire Council - [2005] NSWLEC 143

NEW SOUTH WALES LAND AND ENVIRONMENT COURT

CITATION: Trenwith & Ors v Sutherland Shire Council & Anor [2005] NSWLEC 143

PARTIES:
APPLICANTS:
Jon Trenwith
Lynette Trenwith
Hans Zoeke
Inga Zoeke
Wilhelmus Korremans
Maria Korremans
FIRST RESPONDENT:
Sutherland Shire Council
SECOND RESPONDENT:
John Tourvas

CASE NUMBER: 40937 of 2004

CATCH WORDS: Judicial Review

LEGISLATION CITED:
Environmental Planning and Assessment Act 1979 s 78A, s 79A, s 79C, s 96, s 124
Environmental Planning and Assessment Regulation 2000 cl 50

CORAM: Pain J

DATES OF HEARING: 14/02/2005
15/02/2005
31/03/2005
25/05/2005 (written submissions)
31/05/2005 (written submissions)
17/08/2005

DECISION DATE: 29/08/2005

LEGAL REPRESENTATIVES

APPLICANTS:
Mr A Pickles (barrister)
SOLICITORS:
Macedone Christie Willis
FIRST RESPONDENT:
submitting appearance
SECOND RESPONDENT:
Mr J Whyte (barrister)
SOLICITORS:
Michael Abboud Solicitors

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES
Pain J
29 August 2005
40937 of 2004 Jon & Lynette Trenwith, Hans & Inga Zoeke and William & Rita Korremans v Sutherland Shire Council and John Tourvas
JUDGMENT

Her Honour: The Applicants have commenced Class 4 proceedings seeking various declarations and orders for demolition in relation to DA 03/1992 (“the development application”) granted by the Sutherland Shire Council (“the Council”) for the erection of a pergola by the Second Respondent next to his dwelling at 50 Casuarina Road, Alfords Point (“the property”).

Background Facts

The Applicants in this matter are the adjoining neighbours of the Second Respondent’s property. The First and Second Applicants own 19 Hibiscus Close, Alfords Point on the eastern boundary of the property, the Third and Fourth Applicants own 17 Hibiscus Close, Alfords Point on the eastern boundary of the property and the Fifth and Sixth Applicants own 48 Casuarina Road, Alfords Point on the northern boundary of the property. The plan Annexure A to this judgment sets out the relationship between properties referred to in this matter.
The Council entered a submitting appearance and was not represented at the hearing. I had the benefit of a view of all the parties’ properties.
The Applicants’ evidence included affidavits from:

Mr Jon Trenwith – the First Applicant, sworn 20 September 2004;
Mr Jon Trenwith – the First Applicant, sworn 3 December 2004;
Mr Hans Zoeke – the Third Applicant, sworn 7 October 2004;
Mr Hans Zoeke – the Third Applicant, sworn 7 December 2004;
Mr Wilhelmus Korremans – the Fifth Applicant, sworn 17 September 2004.

The Second Respondent’s evidence included an affidavit from:

Mr John Tourvas – the Second Respondent, sworn 5 November 2004.
Mr Tourvas was cross-examined by the Applicants’ counsel.

On 19 November 2003, the Second Respondent lodged a development application with the Council for the erection of a pergola on his property. The development application consisted of the following documents:

A completed development application form, being a standard form of the Council for the making of development applications (“the DA Form”);
A one page document entitled “Statement of Environmental Effects” (“the SEE”). The SEE contained the following information:
To whom it may concern,
This is just a pergola which is a minor addition to the existing land. This will just be a barbeque area and so should have little impact.
Site Suitability:
Photographs have been included as part of the application to help view the site. This is considered as a bushfire zone so it will be proposed to be built 1.5m’s in from the fence line.
Present and previous uses of the land:
Site unused at the moment, only for landscaping – shrubs that grow on rocks.
Development Standards:
Site area: 791m2
Floorspace ratio: Gross Floor Area/ Site Area – 355.5m2/791m2 = 0.42
Height of pergola: approx. 2.5m, with Pitch 3.2m
Landscaped area: 445.5m2;
A page containing two photographs marked in handwriting with the outline of the proposed pergola;
An A4 hand drawn sketch entitled Site Analysis Plan identified as Plan No. 2003-1 (“the Site Analysis Plan”);
An A4 hand drawn sketch entitled Notification Plan identified by Plan No. 2003-2 (“the Notification Plan”).

On 25 November 2003 the Council notified the Applicants of the development application made by the Second Respondent. Attached to the letter from the Council to the Applicants was a copy of the Notification Plan submitted by the Second Respondent. None of the Applicants made any objection in writing or otherwise to the Council in relation to the development application.
On 14 January 2004 an officer of the Council granted development consent to the development application under her delegation. On 19 January 2004 the Council issued a construction certificate in relation to identical plans lodged with the development consent.
On or about 25 February 2004 the Second Respondent commenced the development by removing vegetation to allow the construction of the proposed pergola. On or about 17 April 2004 construction of the concrete piers and slab commenced. The concrete for the piers and slab, upon which the pergola was to be built, was poured on 22 April 2004. In the weeks following the construction of the concrete piers the Applicants notified the Council of their concerns that such a structure had not been lawfully approved.
On 4 June 2004 the Second Respondent submitted an Application for Modification of Development Consent under s 96 of the Environmental Planning and Assessment Act 1979 (“the EP&A Act”) (“the s 96 application”) to the Council seeking consent for a curved roof over the whole of the pergola, extra Colourbond rails and posts, flyscreens and doors, tiles on top of the concrete slab and a spa bath inside the pergola. The s 96 application attached the following information:

An updated version of the Site Analysis Plan;
An updated version of the Notification Plan;
Copies of two letters sent by the Second Respondent to the Council dated 12 May 2004 and 2 June 2004;
A copy of a letter sent by the Council to the Second Respondent dated 21 May 2004;
A Footing Layout Plan outlining the location and size of concrete piers located on the Second Respondent’s property (“the Footing Layout Plan”);
A Engineer’s Inspection Certificate for the piers and the slab for the pergola dated 23 April 2004; and
A brochure for the spa located on the Second Respondent’s premises.
The s 96 application has not yet been determined.
The Issues

The Applicants submit that they should be entitled to relief on the basis of four grounds:

That the development application did not substantially comply with the requirements of s 78A of the EP&A Act and cl 50 of the Environmental Planning and Assessment Regulation 2000 (“the Regulations”) (“the Invalid Development Application Ground”);
That the Council, when it notified the Applicants of the development application, failed to provide the necessary information in order for the Applicants to make an informed decision about whether to object to the development application by attaching only the Notification Plan to the letter and failing to include the Site Analysis Plan (“the Failure to Properly Notify Ground”);
That the Council erred in law by failing to consider relevant matters in respect of the development application. In the alternative, the Applicants seek relief on the basis that if the Council had given due consideration to the relevant matters, the Council erred in law by coming to a decision that was manifestly unreasonable (“the Failure to Consider Ground”);
That the Second Respondent carried out works that were not the subject of the consent granted by the Council (“the No Consent Ground”).

The Second Respondent did not make any submissions opposing the Applicants’ submissions in relation to the four grounds raised. However, the Second Respondent opposed the order for demolition sought by the Applicants and argued that the Court in exercising its discretionary powers under s 124 of the EP&A Act should not order demolition.
(i) The Invalid Development Application Ground
The Applicants argued that the development application submitted by the Second Respondent did not substantially comply with the requirements of s 78A of the EP&A Act and cl 50 of the Regulations. The Applicants argued that contrary to cl 50(1)(a) of the Regulations, the development application did not contain the information required by Sch 1, Pt 1 of the Regulations. Further, the Applicants argued that contrary to cl 50(1)(b) of the Regulations, the development application did not contain information required by the Council’s DA Form.
In particular, the Applicants submitted that the development application did not comply with the legislation in the following respects:
(a) The plans did not identify the existing levels of the land in relation to buildings located on the land (contrary to Sch 1, Pt 1 of the Regulations and the DA Form);
(b) The plans did not show the location of the proposed building in relation to adjoining development (contrary to Sch 1, Pt 1 of the Regulations and the DA Form);
(c) There were no elevations and sections showing proposed external finishes and heights of proposed buildings relative to ground levels (contrary to Sch 1, Pt 1 of the Regulations);
(d) There were no proposed finished levels of the land in relation to the existing and proposed finished building (contrary to Sch 1, Pt 1 of the Regulations and the DA Form);
(e) There were no details of proposed landscaping and treatment of the land indicating plant types and height at maturity (contrary to Sch 1, Pt 1 of the Regulations);
(f) There was no survey plan showing levels of AHD (contrary to the DA Form);
(g) The plans did not show significant trees, rock outcrops within 5m of the proposed works (contrary to the DA Form).
Finding on the Invalid Development Application Ground
In Botany Bay City Council v Remath Investments No.6 Pty Limited (2000) 50 NSWLR 312 the Court of Appeal concluded that the language of s 77(3) of the EP&A Act (as it was then) required that there be substantial compliance with requirements of the Regulations before a development application was validly made. While s 77(3) is expressed differently to the equivalent section, s 78A(9) of the EP&A Act, I consider that the language is essentially the same so that substantial compliance with the requirements of the Regulations is also required by s 78A(9).
Section 78A(9) of the current EP&A Act is as follows:
The regulations may specify other things that are required to be submitted with a development application.
Clause 50(1) of the Regulations states:
A development application:

(a) must contain the information, and be accompanied by the documents specified in Part 1 of Schedule 1, and
(b) if the consent authority so requires, must be in the form approved by that authority, and

…

Part 1 cl 2(1) of Sch 1 of the Regulations states:
A development application must be accompanied by the following documents:
(a) a site plan of the land,
(b) a sketch of the development,
…

Part 1 cl 2(2) of Sch 1 of the Regulations states:
The site plan referred to in subclause (1) (a) must indicate the following matters:
(a) the location, boundary dimensions, site area and north point of the land,
(b) existing vegetation and trees on the land,
(c) the location and uses of existing buildings on the land,
(d) existing levels of the land in relation to buildings and roads,
(e) the location and uses of buildings on sites adjoining the land.

Part 1 cl 2(3) of Sch 1 of the Regulations states:
The sketch referred to in subclause (1) (b) must indicate the following matters:
(a) the location of any proposed buildings or works (including extensions or additions to existing buildings or works) in relation to the land’s boundaries and adjoining development,
(b) floor plans of any proposed buildings showing layout, partitioning, room sizes and intended uses of each part of the building,
(c) elevations and sections showing proposed external finishes and heights of any proposed buildings,
(d) proposed finished levels of the land in relation to existing and proposed buildings and roads,
(e) proposed parking arrangements, entry and exit points for vehicles, and provision for movement of vehicles within the site (including dimensions where appropriate),
(f) proposed landscaping and treatment of the land (indicating plant types and their height and maturity),
(g) proposed methods of draining the land,
(h) in the case of development to which clause 2A applies, such other matters as any BASIX certificate for the development requires to be included on the sketch.

Accordingly, the Applicants clearly must succeed on the first ground given the deficiencies identified in par 15 above in relation to the Regulations and in accordance with Remath that there must be substantial compliance with the Regulations.

The Failure to Properly Notify Ground

The Applicants argued that the Council failed to properly notify the Applicants of the development application and, as a result, the Applicants were denied the opportunity specified in s 79A of the EP&A Act to participate in the development application process. While the Council attached the Notification Plan to the letter informing the Applicants of the development application, the Council did not include the Site Analysis Plan. The consequence of the Council’s failure to attach the Site Analysis Plan was that the Applicants misunderstood the nature of the development application and were unable to make an informed decision about whether or not to object to the development application. Accordingly, the failure of the Council to properly notify the development application amounted to a denial of procedural fairness such that the development consent was null and void. In arguing this point, the Applicants relied on the decision of McClellan J in Doueihi v Canterbury City Council (2003) 133 LGERA 138 to argue that the Council did not, in the circumstances of the case, provide adequate information to sufficiently inform an ordinary person of the nature of the development application.
Counsel for the Second Respondent conceded that the Applicants should succeed on the Failure to properly Notify Ground as a result of the decision of the Court of Appeal in Litevale Pty Limited v Lismore City Council (1997) 96 LGERA 91.
Finding on the Failure to Properly Notify Ground
In Litevale, Rolfe and Shepherd AJJA considered that as the public notice of the draft local environment plan provided by the council was incomplete, inaccurate and misleading the notice was void because the purpose of the legislation, that objectors be given the opportunity to make their views known, had been defeated. This was the case notwithstanding the fact that the notice contained the information required by the legislation.
In Doueihi, McClellan J at [26] considered that as the notice given by council to the applicant in that matter was misleading, the applicant was deprived of the opportunity to properly consider the proposal and make submissions in relation to it. McCllelan J found, accordingly, that the applicant was denied procedural fairness and that the consent of the council was void.
I am satisfied that by failing to attach the Site Analysis Plan to the letter informing the Applicants of the development application, the Council failed to properly notify the Applicants of the application and the nature of the development application and, accordingly, deprived the Applicants of the opportunity to properly consider the proposal and make submissions in relation to it. Because they did not receive the Site Analysis Plan, the Applicants were unable to appreciate that the pergola would be elevated and would require substantial concrete piers to be constructed to support it. It follows that the Applicants must also succeed on the second ground.

The Failure to Consider Ground

Given my findings on issues 1 and 2 the development consent granted is null and void, subject to my determination on how my discretion ought be exercised. As my findings on the remaining issues are relevant to the exercise of discretion, I will consider them.
The Applicants submitted that the Council erred by failing to consider relevant matters required to be considered under s 79C of the EP&A Act. In arguing this point, the Applicants relied on evidence from the Development Assessment Summary and Report dated 14 January 2004 (“the development assessment report”) submitted by the Council Assessment Officer responsible for determining the development application. The Applicants noted that in the development assessment report the Council’s Development Assessment Officer, Ms Rochelle Thompson, considered that “there will be no adverse impacts upon the neighbours in terms of privacy, overshadowing or loss of amenity”. In addition, the Applicants noted that the plans attached to the Construction Certificate issued by the Council dated 19 January 2004 (“the construction certificate”) were identical to those submitted by the Second Respondent and did not show that the the pergola would be elevated and would require substantial concrete piers to be constructed to support it.
On the basis of this evidence the Applicants submitted that Ms Thompson failed to adequately understand the nature of the development application. As Ms Thompson concluded that there would be no adverse impacts and failed to include elevation levels and pier works in the Construction Certificate Plans, she must have failed to realise that the erection of the pergola would require substantial works, including the removal of trees, and the erection of concrete piers to support the pergola. Accordingly, the Applicants submitted that there was a total failure to consider the environmental impact of the proposal and the impact on the amenity of the adjoining properties.
In the alternative, the Applicants submitted that if Ms Thompson did consider the relevant matters and had a full appreciation of the nature of the development application, her decision to grant development consent was manifestly unreasonable in accordance with the test of unreasonableness enunciated in Associated Provincial Picture House Limited v Wednesbury Corporation [1948] KB 1 223 at 234. The Applicants submitted that in order to construct a pergola in the location proposed by the Second Respondent, it ought to have been obvious to a qualified town planner that the proposal would require substantial piers to support the pergola, that the pergola would be elevated over sloping ground, and that persons standing in it would have a clear view of adjoining properties, including those of the Applicants.
Finding on the Failure to Consider Ground
The Council has not appeared in these proceedings so evidence of the Council’s decision making process must be deduced from the Council file. The Council’s delegated assessment officer, Ms Thompson, decided the development application under delegated authority. The development assessment report prepared by Ms Thompson states that the pergola would be located over an existing garden bed and lawn area and provided that there would be no adverse impacts on the neighbours’ privacy, overshadowing or loss of amenity. It also states the proposed development would have minimal impact on adjoining properties in terms of size, bulk, height and landscaped area. No mention in the development assessment report is made of the need for construction on the northern boundary (the boundary adjacent to the Korremans’ property) of 3m concrete piers to support the pergola as a result of the drop off in height of the land. Further, there is no mention on any of the plans lodged or approved of the intended height of the pergola.

The construction certificate issued by the Council’s certifier attaches the same two plans as were approved by the development consent. There is no reference to the building of a large number of concrete piers in the construction certificate. A plan drawn by an engineer showing the concrete footings and piers built on the site to support the pergola was not lodged with the Council until later. The date of receipt of this plan is shown as 6 June 2004, but the Applicants’ counsel stated from the bar table he was instructed this plan was lodged in April 2004. The plan showing the concrete footings and piers is a plan which should have been before the Council certifier, but was not.

The Council file makes no mention of the elevated slab until after complaints were received from some of the Applicants when the formwork for the piers and slab were laid down on the Second Respondent’s property in April 2004. The first complaint was on 19 April 2004 and there is a file note which states that:
After discussion with manger [sic] (Acting – Mark Riordan) I called certifier (Craig Tibbey) & suggested if possible the work was not to progress as there is no indication on plan that the slab is to be raised. The application may need a s 96 to be rectified.
Organising to go on site ASAP with Manager.
Council wrote to the Second Respondent on 21 May 2004, stating that:
As the submission also included a site plan nominating the location of the pergola, it is understood by Council that a number of piers would be required to support the structure where the contour drops away towards the northern boundary. The resultant form however is a structure considerably higher than anticipated by the adjoining owners.
The structure built by the Second Respondent is substantial and is more suggestive of an outdoor room than a simple pergola. It is particularly substantial when viewed from the Korremans’ property as it is effectively two storeys in height with the concrete slab and top of the concrete piers above the boundary fence and the 3.1m tall pergola then on top of the concrete slab. The Korremans’ property is approximately 4.5m below the Second Respondent’s rear yard at its northern point. The impact is considerable on that property in particular. The impacts on the other Applicants’ properties are less acute but also substantial.
There is no evidence in the Council file that Ms Thompson took into account the likely impacts of the elevated slab. While the letter from the Council to the Second Respondent dated 21 May 2004 indicated that the Council was aware the development would require an elevated slab, there is no evidence that this was understood by Ms Thompson in the assessment of the development application as there is no mention whatsoever in the development assessment report of the impact such an elevated slab would have on the surrounding neighbours.
In Weal v Bathurst City Council & Anor (2000) 111 LGERA 181 Mason P at [17] stated that proper consideration of a matter required the decision maker to have an adequate understanding of the relevant state of affairs. In my view, Ms Thompson did not have an adequate understanding of the facts in this case to enable her to make an adequate evaluation of the development application. I consider the Applicants are successful in their argument that the Council failed to consider an important part of the Second Respondent’s proposed development with the consequent failure to consider the environmental impact of the proposal on the amenity of adjoining properties. I agree that on the basis of Weal there was not a “real, genuine and proper assessment of the development application” by the Council.

The No Consent Ground

The Applicants submitted that as some of the works undertaken by the Second Respondent are not shown on any development consent plans or construction certificate plans, the development carried out by the Second Respondent was not in accordance with the consent granted. In argument, the Applicants pointed to two categories of works that have not been given development consent. First, the Applicants cited the “superstructure” of the pergola, consisting of the reinforced concrete piers and concrete slabs supporting the pergola as works not having consent. Second, the Applicants cited those works that are the subject of the s 96 application such as the installation of a curved roof over the whole of the pergola, the installation of extra Colourbond rails and posts, the installation of flyscreens and doors, tiles on top of the concrete slab and the spa bath.
Finding on the No Consent Ground
There is clearly no consent for the concrete piers in the plans attached to the development assessment report or the plans attached to the construction certificate. These plans are identical and make no reference to any concrete piers. The first time that any plans identified the piers was in the Footing Layout Plan attached to the s 96 application.
To the extent that there is a s 96 modification application for a curved roof over the whole of the pergola, extra Colourbond rails and posts, flyscreens and doors, tiles on top of the concrete slab and a spa bath it is also clear that these works did not have development consent.
Construction certificate
Initially the Applicants sought a declaration that the construction certificate issued in respect of the pergola was null and void. During the hearing the Applicants abandoned this prayer of the Class 4 application when it became clear that the construction certificate certified plans identical to the development consent plans. The Applicants argued that the effect of the construction certificate was to verify that the pergola was built in accordance with the plans approved by the Council. The construction certificate did not authorise the building of the pergola as it was constructed. The alternative relief sought by the Applicants in prayer 6 of the Class 4 application is a declaration that the Second Respondent has carried out development other than in accordance with the construction certificate and in breach of the EP&A Act, which declaration should be made.
Discretion
As the Applicants have been successful in their grounds for judicial review and the development consent is therefore null and void, the issue arises as to whether I should make orders for the demolition of the illegal structure on the Second Respondent’s land.
Applicants’ submissions
The Applicants argued that the breach of the EP&A Act was not merely technical and has resulted in a large illegal structure being built with 18 concrete piers supporting the cement slab for the substantial pergola on top, which covers some 60 square metres. The Applicants are pursuing the enforcement of a public duty not a private right.
There has not been any delay on the Applicants’ part because it contacted the Council in the first instance as the appropriate body to take action. On 17 April 2004, the Applicants observed formwork being erected approximately 3m above ground level on the Second Respondent’s property. On that day Mr Korremans approached the Second Respondent and enquired whether he had obtained approval for the formworks. In addition, Mr Trenwith enquired of the Council whether formworks of this magnitude had been approved. Mr Trenwith made further inquiries of the Council on 19 April 2004 and wrote to it on 20 and 21 April 2004. On 22 April 2004, the concrete slab on the Second Respondent’s property was poured. Mr Trenwith again wrote to the Council on 27 and 29 April 2004 and following this a meeting between the Applicants and the Council was held on 11 May 2004 to discuss various issues and concerns relating to the elevated concrete slab. After further correspondence and a subsequent meeting between the Applicants and the Council on 9 June 2004, it became apparent the Council would not take action against the Second Respondent. The Applicants commenced proceedings in this Court on 5 August 2004.
If the Court does not order demolition the Applicants will continue to suffer substantial detriment to their homes due to substantial loss of privacy, loss of view, glare from the curved roof structure, and impacts from noise due to the use of the pergola. Accordingly, the Applicants’ primary submission was that in accordance with the principles set out in Warringah Shire Council v Sedevcic (1987) 10 NSWLR 335 the Court should exercise its discretion under s 124 of the EP&A Act and make an order for demolition.
The Applicants argued that landscape screens would be an ineffective means of ameliorating the harm suffered by the Applicants. The Applicants did not adduce any evidence in relation to the suitability of landscape screens on the northern or eastern boundaries of the Second Respondent’s property, however the Applicants argued landscape screens would not ameliorate loss of view and glare as a result of the bulk and scale of the pergola landscape screens. The Applicants also argued that landscape screens would not be effective because any orders made in relation to screening in these proceedings could not bind any successive owners of the property.

Second Respondent’s submissions

The Second Respondent argued that the breach of the EP&A Act was not due to his behaviour but rather was a failure on the Council’s part to assess the application correctly and to follow the correct notification procedures. The Second Respondent submitted that the Court cannot impute any improper motive to him in relation to the site plans lodged with the development application and assessed by the Council as adequate for approval. The Second Respondent further submitted there were three reasons why the Court should not order demolition, namely delay in commencing proceedings, financial hardship and a possible adequate alternative.

Delay

The Applicants delayed in commencing proceedings resulting in the whole structure being erected at considerable cost to the Second Respondent.

Hardship

A quote for demolition of the structure in the sum of $38,000 was tendered in evidence. If an order for demolition were to be made the Second Respondent would suffer considerable financial hardship.
Adequate alternative
The Second Respondent also argued there is an alternative to demolition, namely adequate screening on the Second Respondent’s land. The Second Respondent did not present evidence on landscape screening in the hearing but sought leave, which was granted, to do so at a later date. The proceedings were adjourned to allow time for that evidence to be obtained. Subsequently, the Second Respondent tendered a report prepared by Ms Narelle Sonter, a Landscape and Horticulture Consultant (“the landscaping report”). The Second Respondent gave evidence that the height of the piers ranged from 2.0m to 3.0m above the existing ground level. In addition, the maximum height of the pergola is approximately 3.1m. The landscaping report recommended two options for landscape screens on the eastern and northern boundaries of the Second Respondent’s property which Ms Sonter considered would provide adequate screening. One option provided an “instant” solution through planting relatively mature trees and was more expensive than the second option proposed which included planting a large number of smaller trees which would start to provide some screening after 18 months with a realistic screen after three years.
On the eastern boundary Ms Sonter recommended the creation of a landscape screen consisting of eight plants, requiring a bob-cat or a crane for installation, at 3.8m to 4.0m in height and 1.3m in width. Alternatively, Ms Sonter recommended the creation of a landscape screen with fast-growing indigenous screening species approximately 2.0m to 2.5m in height and 700mm in width. In her report Ms Sonter gave evidence that the proposed planting could be expected to grow to a height of 3.0m within the first 12 to 18 months and a height of 4.0 m within a further 12 to 18 months.

On the northern boundary Ms Sonter recommended the creation of a landscape screen consisting of plants requiring a bob-cat or crane for installation at 3.8m to 4.0m in height. Ms Sonter gave evidence that these plants could be expected to grow a further metre within the first 12 months. Alternatively, Ms Sonter recommended that fourteen Lilly Pillys at 2.0m to 2.5m in height be planted along the northern boundary to screen the underside of the pergola. Ms Sonter gave evidence in the report that Lilly Pillys could be expected to grow to a hedge height of 3.0m within the first 12 to 18 months and a height of 7.0m within a further 12 to 18 months.

Ms Sonter estimated that the cost of the “instant” screen landscaping would be $23,750. The alternative screen landscaping was estimated to cost $8,328. The Second Respondent’s counsel argued that because Ms Sonter’s view was that adequate screening could be provided and this was not contested, this approach provided an acceptable solution.
Finding in Relation to Discretion
The discretionary power of the Court under s 124 of the EP&A Act is wide but must be exercised judicially. Sedevcic is the seminal authority for principles governing the issue of a mandatory injunction. In Sedevcic at 339 to 341, Kirby P usefully sets out the considerations to be applied in the exercise of the court’s discretion. Those considerations, relevantly summarised, include:
that the discretionary power conferred on the Court is wide;
whether the breach is purely technical;
whether there was any delay by the applicant in bringing the action;
whether the breach may be shown to have a beneficial effect;
that the restraint sought is not the enforcement of a private right but the enforcement of a public duty imposed by statute in which there is a public interest in the orderly development and use of the environment;
that the purpose of the EP&A Act is that the integrated and co-ordinated nature of planning law will be upheld;
that those involved in the development and use of the environment will comply with the terms of the legislation;
that where the relief sought is against a static development (such as the erection of a building) which, once having occurred can only be remedied at great cost or inconvenience, the discretion may be more readily exercised than where what is involved is a continuing breach by conduct.
The parties also referred to a number of other cases relevant to the present matter. In the recent decision of the Court of Appeal in Wyong Shire Council v MCC Energy Pty Limited & Ors [2005] NSWCA 86 the Court of Appeal declined to exercise its discretion under s 124 of the EP&A Act to remove the third storey of a building in order to allow MCC Energy to cure the technical breach that lead to the invalidity of the development consent in that case. Following the principles contained in Sedevcic, Cowdroy J in Wyong Shire Council v Cohen & Anor (2004) 133 LGERA 355 ordered demolition on the basis that to permit existing structures to remain would result in an advantage to the Respondents over the other residents in the area and to the detriment of the environment. The decision of Cowdroy J in relation to the exercise of his discretion under s 124 of the EP&A Act was upheld by the Court of Appeal (Cohen & Anor v Wyong Shire Council [2005] NSWCA 46). In Attorney-General v Greenfield & Ors (1961) 6 LGRA 230 the Supreme Court concluded that it was not reasonable to order demolition on the basis that the defendants acted innocently and without any intention to violate the law. In Proprietors of SP 13318 & 13555 v Lavender View Regency Pty Ltd & Anor (1997) 97 LGERA 337 Talbot J considered that, in a situation where a party suffered loss from the actions of a council, while a Court may feel sympathetic towards the position of that party, the Court’s overriding obligation is to protect the public interest and ensure that the council acts in accordance with the law. Ultimately each case must be decided on its own facts.

Clearly a substantial structure has been built by the Second Respondent, some parts of which do not have development consent. He was not asked in cross-examination whether his intention in preparing the plans lodged with the Council was to mislead and there is no other evidence on this matter. I do consider that the inadequate plans prepared by the Second Respondent and lodged with the Council depicting the proposed site, the photos provided to the Council and the inaccurate SEE did not accurately represent what was intended to be built. The SEE suggests the pergola structure is minor and will have no impact on neighbours. The structure as built has a significant impact on neighbours. The structure as built is not a pergola as this is ordinarily understood, but presents more as a substantial outdoor room. The failure in these documents to accurately reflect the structure to be built may explain why the Council’s officers failed to fully appreciate the nature of the development proposal.
I further note that the affidavits of Mr Korremans and Mr Zoeke attest to conversations with the Second Respondent about the proposed pergola in October 2003 and November 2003. During these conversations the Second Respondent showed Mr Korremans and Mr Zoeke sketches of the proposed pergola, however it is clear from their affidavits that neither had an accurate understanding as a result of these conversations of the elevated location of the structure intended to be built. This difficulty was further compounded when the Notification Plan sent by the Council on 25 November 2003 did not provide any indication of the elevated nature of the structure. While there is disagreement about the precise terms of the conversation the fact remains that two affected neighbours were unaware of the elevated nature of the structure proposed to be built by the Second Respondent.
In his affidavit the Second Respondent attested to a conversation with Mr Trenwith in October 2003. Mr Trenwith’s evidence was that no such conversation took place and could not have taken place as he was overseas on the relevant date. The first time he states that he was aware of the proposal was when he received notice from the Council in a letter dated 25 November 2004.
It is also not in the Second Respondent’s favour that he admitted in cross-examination that it was his intention from the outset to build the current structure including the introduction of a substantial spa pool. The structure as built does not have the Council’s consent in several respects as is clear from the s 96 application lodged with the Council.

Delay

In relation to the delay in commencing proceedings, the Applicants were prompt in notifying the Council of their concerns as soon as work commenced on the piers. There is dispute however as to whether this concern was communicated to the Second Respondent. All the Applicants’ affidavits attest to their numerous contacts with Council officers expressing their concerns about the pergola. For example, the work commenced on 17 April 2004 and Mr Trenwith first contacted the Council on the morning of 17 April 2004 after noticing formwork near the boundary of the Second Respondent’s rear yard. Mr Trenwith again raised his concerns on 19 April 2004, and wrote to the Council on 20 April 2004, 21 April 2004, 22 April 2004, 23 April 2004, 27 April 2004, 28 April 2004, and 29 April 2004 in relation to ameliorating measures that could be undertaken.

The Council inspected the site on numerous occasions. On 20 April 2004, Mr Craig Tibbey, a Council officer, inspected the site and formed the view that the concrete slab in place had been approved and was within the scope of the plan. However, Mr Tibbey expressed some concern about the size and height of the formwork and undertook to meet with Ms Thompson, the Council officer who approved the development application. On 23 April 2004, Ms Thompson inspected the property and informed Mr Trenwith that she did not have any issues relating to the structure of the pergola. On 28 April 2004, Ms Thompson inspected the site from Mr Trenwith’s property. Judging from the file reports, while initially there was concern about the elevated piers (see par 29 and 30 above) the Council’s officers later formed the view that the proposal was built in accordance with the development consent plans but that additional screening was advisable. Following further discussions, meetings were held between the Applicants and the Council’s officers on 11 May 2004 and 9 June 2004 discussing various issues and concerns relating to the pergola, and proposals for ameliorating measures that could be taken to reduce the impact of the pergola on the Applicants. It was not apparent until 9 June 2004 that the Council would not take action. These proceedings were commenced on 5 August 2004 after all the work was completed.

The major reason not to grant the orders sought based on the Applicant’s actions would be if they unnecessarily delayed in commencing proceedings. Clearly they were prompt in advising the Council of their concerns and continued to lobby the Council for two months to get the Council to take action, ultimately unsuccessfully.

Could more have been done to alert the Second Respondent of the extent of their concerns? In his affidavit Mr Trenwith stated that he first raised his concerns with the Second Respondent on 24 April 2004 two days after the concrete slab and piers had been poured. However, the Second Respondent disputed that he spoke to Mr Trenwith on this occasion. In his affidavit, Mr Korremans stated that he asked the Second Respondent whether he had obtained the Council’s consent for the formwork on 17 April 2004, although this was also disputed by the Second Respondent. It is unknown precisely when the Second Respondent was made aware of his neighbours’ concerns but he was clearly aware when he wrote a letter to the Council dated 12 May 2004 concerning the issues. The major criticism which could be levelled against the Applicants is that they did not put the Second Respondent on notice earlier of their intention to take court action. I consider they were diligent in trying to involve the Council.
Adequate alternative
The landscape screening option is not optimal and is not binding on successors in title to the property. I do not accept the Second Respondent’s submission that landscape screening up to the height of the pergola’s balustrade is sufficient to ameliorate the overlooking from the pergola suffered by the Korremans. I should note that in order to maintain the view from the pergola towards the water, the Second Respondent would trim the Lilly Pilly screen so that it was level with the railing on the pergola, at approximately 4.5m to 5.0m in height on the eastern side. This would not entirely screen the pergola from the Korremans’ property as the remainder of the pergola would be visible.
I accept the Applicants’ submission that the proposed landscape screening does not overcome the private advantage gained by the Second Respondent nor does it adequately ameliorate the inequity suffered by the Applicants. While landscape screens may reduce some of the impacts of the pergola, they would not sufficiently ameliorate the bulk and scale, glare and loss of views suffered by all the Applicants. In Superstudio v Waverley Council (2004) 133 LGERA 363, Roseth SC considered that where proposed landscaping is the main safeguard against overlooking, it should be given little weight. This is because of the difficulty of compelling a person to maintain landscaping. While this is a Class 1 decision I consider it here given the substantial reliance by the Second Respondent on a landscape screen as a realistic alternative to demolition. Had I been minded to require a landscape screen it would have been the “instant” screen solution proposed by Ms Sonter.
Conclusion
This is a difficult case in which to weigh up the respective parties’ interests. The Second Respondent enjoys the benefit of a substantial structure, only parts of which the Council approved. Clearly the cost of removal of the structure by the Second Respondent will be substantial although I note that the spa is moveable. He has already incurred the cost of construction which he estimated in oral evidence to be $44,000. The DA form states the cost at $12,000.

Considering the specific matters in Sedevcic I do not consider the breach is technical. It does not have a beneficial effect given the impact on neighbours. Further, relief is sought in relation to the enforcement of a public duty. While I make no finding that the Second Respondent was deliberately misleading in his conduct, I have already stated my reservations about the inadequacies of the development application plans, supporting photographs and SEE. Further, the Second Respondent failed to make clear to his neighbours the nature of what he intended to build so that no issues were raised by them with the Council. I have also held that the Council failed to give proper consideration to the matter and that the Second Respondent has done building work for which he did not have development consent. For completeness, I note that in reaching these findings I have considered the Court of Appeal decision in Wyong Shire Council v MCC Energy. That case concerned a technical breach of the planning laws that could be easily remedied by staying the orders sought by Wyong Shire Council, but the facts in that case are quite different to those before me.
I do not consider the Applicants can be said to have so unreasonably delayed in commencing these proceedings that they are disentitled from obtaining relief. The substantial part of the work, being the pouring of concrete, was completed between 17 and 22 April 2004. The Applicants were prompt in directing their attention to the Council hoping that it would take the necessary action, which it ultimately failed to do. While it certainly would be preferable that more was done to alert the Second Respondent of their concerns, I do not consider that failure is disentitling. In accordance with the principles in Sedevcic I consider that it is appropriate to exercise my discretion to make the demolition orders sought by the Applicant, subject to further matters I raise below.
Given however that this is a matter of dispute between neighbours and it would be in all the parties’ interests if there was a resolution where all interests were met to some extent, I am going to allow the parties an opportunity to meet to see if a modified proposal can be undertaken in a meaningful time frame. This must necessarily involve a reduction in height of the pergola particularly on the Korremans’ boundary, or a greater setback of the structure. This discussion, of necessity, will have to involve the First Respondent. If no agreement can be reached I will then consider submissions on what is a suitable time frame for demolition.

Orders

The Court makes the following declarations and orders:
A declaration that development application DA 03/1992 made by the Second Respondent for the erection of a pergola at 50 Casuarina Road, Alfords Point (“the property”) was not validly made;
A declaration that development consent to DA 03/1992 granted by the First Respondent for the erection of a pergola on the property is null and void;
A declaration that the pergola erected by the Second Respondent has been erected without development consent under Part 4 of the Environmental Planning & Assessment Act 1979;
A declaration that the Second Respondent has carried out development other than in accordance with a construction certificate and in breach of the Environmental Planning & Assessment Act 1979;
An order that costs be reserved.

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Citations

Trenwith v Sutherland Shire Council [2005] NSWLEC 143

Most Recent Citation

Trenwith v Sutherland Shire Council (No 2) [2006] NSWLEC 491

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