Waverley Council v Ash Samadi

[2020] NSWLEC 67

Land and Environment Court

New South Wales

Medium Neutral Citation:	Waverley Council v Ash Samadi and Ors [2020] NSWLEC 67
Hearing dates:	12, 13, 14, 21 and 22 May 2020
Date of orders:	23 June 2020
Decision date:	23 June 2020
Jurisdiction:	Class 4
Before:	Duggan J
Decision:	See paragraphs 270 to 272
Catchwords:	ENVIRONMENT AND PLANNING – validity of development control order – manner of service – s 10.11 Environmental Planning and Assessment Act 1979 – email service arrangements can be indicated by conduct of parties – stop work order was served and was effective ENVIRONMENT AND PLANNING – validity of development control order – adequacy of time for compliance with stop work order – schedule 5, clause 27 Environmental Planning and Assessment Act 1979 – determination of a “reasonable period” for compliance is an objective question of fact –circumstances of previous stop work order are relevant – if stop work order maintains current state of affairs compliance forthwith is not an unreasonable period – immediate compliance not limited to clause 27(2) ENVIRONMENT AND PLANNING – validity of development control order – adequacy of reasons – read as a whole the reasons are more than a recitation of the circumstances that enliven the power to issue an order – in any case they could comprise adequate reasons ENVIRONMENT AND PLANNING – validity of development control order – whether factual foundation to enliven power to issue – Council had sufficient factual foundation ENVIRONMENT AND PLANNING – whether work undertaken breached development control order –– work undertaken did not conform with the modification to the development control order – stop work order breached EVIDENCE – where evidence is not evidence of truth – Respondent given sufficient opportunity to respond to criticisms relating to his evidence – Respondent not a witness of truth – Respondent’s evidence should not be relied upon absent some independent corroboration ENVIRONMENT AND PLANNING – validity of complying development certificate – breach of clause 3.7.2.7 of Building Code of Australia – complying development certificate not authorised to be issued – complying development certificate invalid ENVIRONMENT AND PLANNING – whether breach of orders for entry – service of notices of entry was effective – failure to give access breached the orders DISCRETION – s 25E Land and Environment Court Act 1979 – discretion to validate complying development certificate – invalidity arising from absence of power – no steps available to permit validity – breach integral part of the complying development certificate – no reasonable way to sever non-compliant element of the consent – s 25B discretion not available – if available not exercised on circumstances of case GENERAL DISCRETION – breach of inspection notices – whether declarations sought are bare declarations – declarations serve the public purpose of denouncing conduct – discretion not exercised
Legislation Cited:	Electronic Transactions Act 2000 Environmental Planning and Assessment Act 1979 Environmental Planning and Assessment Regulation 2000 Interpretation Act 1987 Land and Environment Court Act 1979 National Construction Code 2019 Building Code of Australia State Environmental Planning Policy (Exempt and Complying Development Codes) 2008
Cases Cited:	Brown v Randwick City Council (2011) 183 LGERA 382 Burwood Council v Ralan Burwood Pty Ltd (No 3) (2014) 206 LGERA 40 Cando Management and Maintenance Pty Ltd v Cumberland Council (2019) 237 LGERA 128 Dunghutti Elders Council (Aboriginal Corporation) RNTBC v Registrar of Aboriginal and Torres Strait Islander Corporation (2011) 279 ALR 138 Great Lakes Shire v Lani (2007) 158 LGERA 1 Guiseppe v Registrar of Aboriginal Corporations (2007) 160 FCR 465 Hill Top Residents Action Group Inc v Minister Administering the Sporting Venues Authorities Act 2008 (No 4) [2011] NSWLEC 6 Howship Holdings Pty Ltd v Leslie (1996) 41 NSWLR 542 In the matter of Australasian Barrister Chambers Pty Limited [2020] NSWSC 304 J & J O’Brien Pty Ltd v South Sydney City Council (2002) 121 LGERA 223 Lederer v Sydney City Council (2001) 119 LGERA 350 New South Wales v Hunt (2014) 86 NSWLR 226 Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355 Proprietors of SP 13318 & 13555 v Lavender View Regency Pty Ltd (1997) 97 LGERA 337 The Owners - Strata Plan No 4983 v Canny (2018) 233 LGERA 432 UTSG Pty Ltd v Sydney Metro (No 6) [2020] NSWLEC 63 Van Haasteren v South Sydney Council (2000) 109 LGERA 252 Warringah Shire Council v Sedevcic (1987) 10 NSWLR 335 Willoughby City Council v Wu [2014] NSWLEC 165
Texts Cited:	Macquarie Dictionary Oxford Dictionary
Category:	Principal judgment
Parties:	Waverley Council (Applicant) Ash Samadi (First Respondent) Vladan Blagojevic (Second Respondent) VB Certifier Pty Ltd (Third Respondent)
Representation:	Counsel: D Miller SC and D Birch (Applicant) M Wright SC and M Astill (First Respondent) Submitting Appearances (Second and Third Respondents)   Solicitors: Maddocks Lawyers (Applicant) Storey & Gough Lawyers (First Respondent) Submitting Appearances (Second and Third Respondents)
File Number(s):	2020/69816
Publication restriction:	No

TABLE OF CONTENTS

Nature of proceedings

Background facts

What works were authorised by the 2017 CDC and 2020 CDC?

Principles applicable to the construction of a complying development certificate

The 2017 CDC

The 2020 CDC

Validity of Stop Work Order

Was the Stop Work Order served in accordance with the requirements of the EP&A Act?

Was the Stop Work Order served by email in accordance with s 10.11(1)(c) of the EP&A Act?

Was the 22 February 2019 letter in fact posted to Council?

Adequacy of time for compliance with Stop Work Order

Adequacy of reasons

Factual foundation as at date of issue of order

Was there a breach of the Stop Work Order?

Validity of the 2020 CDC

Requirements for a complying development certificate

Eaves distance from the boundary

Classification of building

Pitch of roof

Delivery of CDC to Council and other irregularities

Breach of orders for entry

Discretion

Sections 25B and 25E of the Land and Environment Court Act

General discretion

Discretionary considerations for 2020 CDC invalidity

Discretionary considerations for breach of the Stop Work Order

Discretionary considerations for the breach of the orders for entry

Conclusion and orders

Judgment

Nature of proceedings

1. The Applicant (the Council) has commenced these proceedings alleging that certain work being undertaken at 6 Wolaroi Crescent, Tamarama (the Premises) by Ash Samadi (the First Respondent) is being carried out contrary to the requirements of a development control order, that access to the Premises, as required by two Notices of Entry had failed to be given, and further, that a complying development certificate issued by Vladan Blagojevic (the Second Respondent) through his company, VB Certifier Pty Ltd (the Third Respondent) is invalid. The Council seeks various declarations and orders relating to these claims.

2. The First Respondent (the Respondent) denies the Council’s claims.

3. The Second and Third Respondents have filed submitting appearances.

Background facts

4. The Respondent was granted a complying development certificate No 17/2744-1 dated 20 July 2017 (the 2017 CDC) for internal alterations and opening changes to an existing dwelling at the Premises.

5. Work commenced pursuant to the 2017 CDC at the Premises in October 2018. From about January 2019 issues arose relating to the carrying out of construction work at the Premises such that the Council:

1. Issued a notice of intention to give an order on 11 February 2019 for the demolition of an unauthorised panel fence on the northern boundary;

2. Issued a development control order dated 12 March 2019 relating to the pool construction of the pool area;

3. Sent a show cause letter dated 3 April 2019 as no response had been received in respect of the development control order dated 12 March 2019;

4. Issued a revocation of the 12 March 2019 development control order on 6 May 2019;

5. Issued a development control order to demolish the fence on 24 June 2019; and

6. Issued a development control order on 20 December 2019 (the 2019 Stop Work Order) that required all construction work at the Premises to stop “forthwith”. The reason given for the 2019 Stop Work Order was that a wall was being constructed on the northern elevation of the building and a front boundary fence was being constructed without necessary approval.

6. Each of the notices of intention and development control orders were sent to the Respondent by post to a Post Office Box at Bondi Junction NSW 1355 (the Post Office Box). The documents referred at [5(6)] were also emailed to the Respondent at [email protected] (the Email Address). The documents at [5(2)], [5(3)] and [5(4)] above were sent by email to the Respondent’s solicitor at the time.

Photograph 1: The Premises prior to November 2019.

Photograph 2: The Premises one day before the 2019 Stop Work Order was issued.

7. On 20 December 2019, the Respondent was granted a complying development certificate by the Second and Third Respondents (reference 2019/424/01) for internal changes to the layout of the first floor of the proposed building at the Premises (the 2019 CDC).

8. On 7 January 2020, the Second and Third Respondents granted what was referred to as an amended complying development certificate for internal alterations to an existing dwelling that proposed, in very broad terms, changes to the roof of the Premises (the 2020 CDC). Whilst granted on 7 January 2020, the 2020 CDC was said to have been posted by the Second Respondent to the Council on 14 January 2020.

9. Between 8 January and 10 January 2020, Dincel walls were constructed to the internal face of the northern and southern external walls on the third level of the Premises. Some time prior to 18 January 2020, Dincel walls were constructed to the internal face of the northern and southern external walls up to, but not including, level three. Dincel walls are a proprietary product. The system is very generally described as one in which a wall comprising two panels with a void between is erected. The void is then filed with concrete.

10. On 13 January 2020, Council officers carried out an inspection of the Premises. Present at the inspection were a number of people including: the Respondent; Mr Hilt, a Senior Building Surveyor at the Council; another Council officer; and the Council’s solicitors, Ms Norquay and Ms Mallos. At this inspection it was observed that work had been undertaken including the demolition of the eaves of the roof and the erection of the Dincel walls to the north and the south.

Photograph 3: The Premises on 13 January 2020 following the inspection.

11. At the inspection, the Respondent contends that he gave to Mr Hilt a copy of the 2020 CDC together with other documents. Mr Hilt disputes this.

12. On 15 January 2020, the Respondent commenced an appeal against the 2019 Stop Work Order. On 17 January 2020, the Respondent filed a Notice of Motion seeking expedition of that appeal.

13. At 5:41pm on 30 January 2020, the Council revoked the 2019 Stop Work Order and issued the Respondent with a Stop Work Order requiring the Respondent to stop all construction work on the northern and southern walls and the roof of the Premises (the Stop Work Order). The Stop Work Order was sent to the Respondent by email to the Email Address and by post to the Post Office Box.

14. At 7:52pm on 30 January 2020, a completed “Postal Address Change for Rates” form accessed via the Council website was received electronically by the Council. The form changed the Respondent’s postal address to an address in Crackenback NSW (the Crackenback Address) and provided the same email address as had been used in prior correspondence with the Council. The Customer reference number was noted as “29/01/20”. The Respondent states this form was completed on 29 January 2020.

15. From 30 January 2020 to 7 February 2020, works were undertaken on the northern and southern walls and the roof of the Premises. Between 5 February 2020 and 7 February 2020, the existing tiles and roof framing structure were removed.

16. The Respondent states that he first became aware of the Stop Work Order on 7 February 2020.

17. On an unspecified date, the Respondent’s engineer, Mr Demlakian, instructed the Respondent to install the steel roof framing structure.

18. On 12 February 2020, the Respondent commenced an appeal against the Stop Work Order. The Respondent also filed a Notice of Motion seeking expedition of the appeal and a stay of the Stop Work Order (neither of which were ultimately pressed).

19. On 14 February 2020, the Council’s solicitors requested an undertaking that all work on the roof cease immediately. The Respondent’s solicitor replied in writing that the Respondent “[had] an obligation to perform all works required that is [sic] related to safety of the site … Other than safety related works, our client will stop all other construction work on the roof until our hearing in court on the 18th February 2020”.

Photograph 4: Photograph taken on 14 February 2020 indicating that the roof of the Premises had been removed.

20. On 19 February 2020, the Respondent’s solicitor sent the Council a letter stating that the Respondent agreed to construct the northern and southern walls of the Premises to the height of the pre-existing walls, and construct the eaves and the roof to the form and height of the pre-existing eaves and roof.

21. On 18 February 2020, the Council issued a notice of entry of residential premises requiring access to the Premises for an inspection to be given to Council on 26 February 2020 (the First Access Notice). This Notice was sent by email to the Email Address and by post to the Crackenback Address. Mr Hilt attended the Premises on 26 February and was unable to gain access to the Premises.

22. A further notice of entry of residential premises was issued on 26 February 2020 requiring access to the Premises for an inspection to be given to Council on 28 February 2020 (the Second Access Notice). The Second Access Notice was sent in the same manner as the First Access Notice. Mr Hilt attended the Premises on 28 February and was unable to gain access to the Premises.

23. On 2 and 3 March 2020, a new steel roof frame was installed. The Respondent states it was necessary to install the steel roof frame for the purposes of safety.

Photograph 5: Photograph taken on 2 March 2020 illustrating partial installation of the steel roof frame.

Photograph 6: Photograph taken on 3 March 2020 illustrating the completed installation of the steel roof frame and Outriggers.

24. On 3 March 2020, the Council commenced the current proceedings together with a Notice of Motion seeking an urgent interlocutory injunction restraining the carrying out of the work referred to in the Stop Work Order, until further order of the Court. The Notice of Motion was satisfied by the Respondent (through his solicitor) providing an undertaking to the Court (the Undertaking) that:

The Respondent undertakes to the Court as follows:

Until further order of the Court the Respondent, his servants and agents, cease all work on the roof, northern or southern walls on the land at 6 Wolaroi Crescent, Tamarama other than the installation of a Tarpaulin over the existing roof structure as at 3 March 2020;

…

25. The parties are agreed that the roof structure at 3 March 2020 comprised the steel frame for the roof as shown in the photograph 6 at [23].

26. On 5 March 2020, the Respondent sought to vary the Undertaking by a Notice of Motion in order to permit the installation of sisalation (sarking) instead of tarpaulins on the roof, with the stated purpose of weatherproofing the building. Upon further examination, this proposal also included the construction of timber framing and timber battens to secure the sisilation. These works would have been required in any event prior to the re-tiling of the roof. This application was not pressed.

27. A further application was made to vary the terms of the Undertaking to allow the same works anticipated in the 5 March 2020 Notice of Motion and was listed for hearing on 8 April 2020. On 7 April 2020, as part of the evidence served by the Council in opposition to the variation of the Undertaking, the Council served a joint report of two experts, Mr Britt and Mr Appleyard, which provided a methodology of how tarpaulins could be employed to provide effective weatherproofing without the need for the completion of the sisilation and associated works (the Joint Report). The Joint Report suggested that when stringing the tarpaulin, “temporary timber trimmers” may need to be installed in the steel roof frame area and that “no more than 6 timber roof trimmers might be necessary”.

28. At the hearing on 8 April 2020, the Respondent did not press the Notice of Motion and indicated that he wished to pursue attempting to use tarpaulins as suggested in the Joint Report. He reserved his right to re-apply to vary the Undertaking in the same terms should that system not provide sufficient weatherproofing.

29. On 21 April 2020, Mr Britt and Mr Hilt attended the Premises. They observed the installation of the new tarpaulins underneath the roof structure. These tarpaulins prevented a visual inspection of the roof structure above.

30. On 22 April 2020, Mr Britt and Mr Featherstone (Council officer) attended the Premises and the Respondent denied a request to remove the tarpaulin coverings. Mr Britt observed additional support structures had been installed under the tarpaulins.

31. On 23 April 2020, Mr Britt and Mr Featherstone attended the Premises. Mr Britt identified the timber work within the roof structure as, in his opinion, permanent works in accordance with the structural drawings in the 2020 CDC and Australian Standard AS16684.2.

Photograph 7: Photograph taken in late April 2020 of the steel roof frame from below.

32. On 5 May 2020, the Court directed that the tarpaulin beneath the roof frame structure be removed to enable access to, and inspection of, the whole of the roof frame structure. Mr Britt and Mr Winram (Council’s solicitor) attended the Premises and observed that the erected timber rafter work comprised 102 timber rafters and plywood inserts in the eaves, consistent with the structural drawings in the 2020 CDC and Australian Standard AS16684.2.

Photograph 8: Photograph taken on 5 May 2020 of the steel roof frame from below.

Photograph 9: Photograph illustrating timber plywood infill between Outriggers.

What works were authorised by the 2017 CDC and 2020 CDC?

33. Determining the primary claims made in these proceedings, relating to whether the Stop Work Order was breached and whether the 2020 CDC is invalid, requires, as a preliminary step, a determination of what approvals or authorities the Respondent had at the relevant dates.

34. Thereafter, it will be necessary to determine whether the works carried out were authorised by the 2017 CDC or 2020 CDC and/or whether the 2020 CDC (to the extent it was relied upon to authorise any work) was validly granted.

35. To that end, the Respondent relies upon the two complying development certificates issued to it, comprising the 2017 CDC and 2020 CDC, and it is necessary to determine the nature and scope of the development approved by each of these complying development certificates.

Principles applicable to the construction of a complying development certificate

36. As defined in s 1.4 of the Environmental Planning and Assessment Act 1979 (EP&A Act) a development consent includes a complying development certificate. The parties submitted that a complying development certificate should be construed in the same manner and apply the same principles as if it were a development consent granted to a development application made pursuant to Part 4 of the EP&A Act. Those principles are well known and were summarised by Payne JA in The Owners - Strata Plan No 4983 v Canny (2018) 233 LGERA 432 at [60]-[64] as:

60.   First, the nature and extent of the approved development must be determined by construing the document of approval, including any plans or other documents which it incorporates, aided only by that evidence admissible in relation to construction which establishes, or helps to establish, the true meaning of the document as the unilateral act of the relevant authority, not the result of a bilateral transaction between the applicant and the council. Thus evidence of the nature of the site would always be admissible for this purpose, as would be, in appropriate cases, evidence as to the meaning of the marks on plans, or indeed, the meaning of the absence of particular marks: Parramatta City Council v Shell Co of Australia Ltd [1972] 2 NSWLR 632 at 637 per Hope JA;

61.    Secondly, a development consent is to be construed according to its terms, having regard to its enduring nature. A development consent has an enduring nature because it is not personal to the applicant but is a public document operating for the benefit of third parties such as subsequent owners, occupiers and security holders, and in some respects is equivalent to a document of title: House of Peace Pty Ltd v Bankstown City Council (2000) 48 NSWLR 498 per Mason P at [23]; Winn v Director-General of National Parks and Wildlife (2001) 130 LGERA 508 per Spigelman CJ at [4].

62.    Thirdly, the enduring nature of a development consent encourages a fair but liberal reading of the rights it confers upon a landowner who may spend considerable money acting upon it and who is likely to wish to sell the land sooner or later: House of Peace per Mason P at [41].

63.    Fourthly, a development consent is to be construed not as a document drafted with legal expertise, but to achieve practical results: Westfield Management Ltd v Perpetual Trustee Company Ltd [2006] NSWCA 245 per Hodgson JA at [36]; Baulkham Hills Shire Council v Ko-veda Holiday Park Estate Ltd (2009) 167 LGERA 395 per Tobias JA at [105].

64.    Fifthly, as a general rule, a development consent, being a public document operating for the benefit of third parties, should be construed without reference to extrinsic evidence other than to identify a thing or place referred to in it. That extrinsic evidence is not led to vary the consent but to identify a thing or place referred to in it. Evidence as to the nature or physical features of the land may also be admissible for that purpose, at least those features observable by a third party at the time of the consent: Allandale Blue Metal Pty Ltd v Roads and Maritime Services (2013) 195 LGERA 182 per Meagher JA at [44]; Parramatta City Council v Shell Co of Australia [1972] 2 NSWLR 632 at 637.”

37. These principles and the underlying policy reasons that dictate the manner in which a development consent is to be construed when granted pursuant to a development application, are equally applicable to a development consent granted pursuant to a complying development application. The complying development certificate, once granted, operates to the same extent and with the same limitations as any other development consent. The provision that allows a complying development certificate to be issued by a private certifier, rather than another consent authority, does not alter this approach. The fact that the legislative regime has expanded the pool of persons able to grant a development consent, in the case of complying development, does not operate to alter the rights and duties imposed by such a development consent. Accordingly, it is appropriate to consider such principles in determining what development was the subject of the development consent in the 2020 CDC and 2017 CDC.

38. Of fundamental significance to the determination of this case is whether:

1. The 2017 CDC authorised the erection of the Dincel walls to the dwelling;

2. The 2020 CDC authorised the erection of the Dincel walls to level three of the dwelling;

3. The 2017 CDC authorised the removal of the roof frame or tiles; and

4. The 2020 CDC authorised:

1. The removal of the roof tiles; and

2. The replacement of the existing timber roof frame with the structural steel roof frame that was installed at the Premises including that part of the roof frame referred to as outriggers, eaves or sun visor. For these purposes, it matters not how this feature is characterised in any material sense and will be referred to hereafter for ease of reference as the Outriggers.

The 2017 CDC

39. The 2017 CDC was comprised of:

1. Certificate No 17/2744-1 issued by Wayne Treble dated 21 July 2017;

2. The plans, being both architectural plans and structural drawings listed in the section of the Certificate headed “Plans and specifications approved”; and

3. The documents listed in the section of the Certificate headed “attachments”, which, relevantly for the purposes of these proceedings, contained the following:

6.   Certificate of structural adequacy (17050) prepared by Dincel and Associates dated 06.07.2017.

7.   Design Statement- Structural (17050) prepared by Dincel and Associates dated 06.07.2017.

40. The 2017 CDC identified the nature of the works approved as:

Internal Alterations and opening changes to an existing dwelling.

And imposed condition 4 that required:

Works must be carried out in accordance with the plans and specifications to which the complying development certificate relates.

41. The Structural Certificate and Design Statement both asserted that the building constructed in accordance with the approved plans would be structurally sound.

42. The plans approved by 2017 CDC proposed that a raked ceiling be created at level three. The provision of such a ceiling required the removal of the existing ceiling and some of the timber frame above. Apart from the introduction of that ceiling into the existing retained roof and frame there was no reference to any additional changes to the roof frame or structure.

43. Further, there was no mention of the construction of the Dincel walls to the northern and southern walls. To the extent that the northern and southern walls of the building were referenced, such references identified that where there was a redundant wall opening it would “Make Good to Wall”, and the proposed new floor slabs were to be “toothed into existing wall” with the engineering detail identifying the existing brick walls, not mentioning any Dincel walls to the northern or southern walls. Dincel walls were nominated as internal walls where new internal dividing walls were proposed.

44. Considering the totality of the 2017 CDC it is apparent that there was no approval for the erection of any Dincel walls to the north or south elevations of the building (either internal or external to the existing brick walls). Nor did the 2017 CDC purport to approve the replacement, redesign, removal or restoration of any part of the existing roof frame or tiles (apart from replacing some existing solar tiles over a skylight and the installation of a raked ceiling at level three). These works did not indicate a proposal to remove the roof tiles nor the timber structure on which the tiles relied for support.

45. Accordingly, a proper construction of the 2017 CDC is that it did not approve the removal of the roof, roof tiles, roof framing or the construction of Dincel walls to the northern and southern walls (on either the internal or external face of those walls).

The 2020 CDC

46. The 2020 CDC was styled as an amendment to a complying development certificate nominated as “Complying Development Certificate 2019/424/02 Mod”. That nominated certificate number is a reference to the 2019 CDC. Amendments to complying development certificates are authorised by s 4.30 of the EP&A Act.

47. The 2020 CDC comprised:

1. The Certificate, including the conditions attached;

2. The four sheets of architectural plans and one sheet of engineering plans referred to expressly at page 2 of that certificate; and

3. The application form.

48. The 2020 CDC was expressed to approve works described as:

Internal alternations to an existing dwelling

49. The architectural plans incorporated in the 2020 CDC indicated:

1. Each of the Plan references were identified as Revision C which was noted as: “07.01.20 Application for roof framing only”;

2. Site and Roof Plan - “new roof framing and support to [structural engineer’s] details” with “existing roof form to remain. Replace roof tiling as exempt development”. A curved line around the gutter line is shown but not described;

3. The Roof Ridge Height was shown as RL47.580 and the roof area was noted with the letters “TR”. There is no key on the 2020 CDC Plans or the 2019 CDC Plans (being the complying development certificate that was amended by the 2020 CDC) that identify what these letters are intended to mean;

4. Third Floor Plan - “existing third floor not part of this application” and “new roof framing above and support to [structural engineer’s] details”;

5. South and north elevations and the east and west elevations – they indicated no alteration to walls. A note to the roof was “New roof framing and support to [structural engineer’s] details”. There is a line below the gutter level shown on each elevation with no description of its form, purpose or construction method; and

6. The Plan containing the section of the building nominated as “section 10” had the same note that appeared on the elevations together with the note: “Provide supports to exist structure as required by future eng’s details”.

50. The engineer’s details on the single sheet approved indicated:

1. A roof plan that illustrated the structural steel members and columns together with a number of sections that provided further detail to the roof plan;

2. No reference to the roof tiles being removed (or replaced) or the roof form altering;

3. The plan did note in some locations that “… Dincel wall with outer brick skin. No cavity”, however, there were no details as to whether that wall existed or was to be constructed; and

4. There were a number of lines perpendicular to the edge of the roof that were noted in the member schedule as “outrigger” and “welded frame - refer to detail”. No further detail was provided of the Outrigger.

51. The application form was styled as an amendment to the 2019 CDC and the description of the amendment was “replacement of roof frame structure”. The 2019 CDC, as it is the certificate being amended and will, once amended, form part of the consent, is also relevant. As identified at [7] above, that certificate only related to the internal layout of level one.

52. Dealing first with the Dincel walls, the 2020 CDC did not authorise the construction of the walls. When read as a whole it is clear that the application was for the roof structure only and not any part of the building below. This is apparent from the architectural plans that show no change to the walls and expressly state that level three does not form any part of the application and that it related to the roof framing “above”.

53. The application form was also limited to the roof frame structure. To the extent that the architectural plans referred to “roof framing and support” to engineer’s details, the engineer provided no details that would indicate that the Dincel walls were to be constructed as part of the application or as a necessary “support” to the roof frame. Where there was a reference to the Dincel walls in the engineer’s plans it was a reference without detail or specification. Where there is a statement in the architectural plans that something will be completed to the engineer’s detail and those plans are accompanied by an engineer’s detail the only rational reading of that note is that the detail will be provided in the engineer’s plans. In this case, the engineer’s plans did not detail or specify the erection of Dincel walls.

54. As has long been observed, whilst a condition imposed upon a development consent or the construction specifications of a feature of the development as approved may require some future detail, that detail must be consistent with the development as approved. If the further detail or specification required some work different from, or not anticipated by, the development consent, the “further detail” or the requirement for compliance does not operate to modify the terms of the consent to permit such changes. Where changes are required then a further consent may be required in order for that desired response to be permitted: Proprietors of SP 13318 & 13555 v Lavender View Regency Pty Ltd (1997) 97 LGERA 337 at 352.

55. In this case, whilst reference is made to Dincel walls (below) in the engineer’s plans, to construe the 2020 CDC as granting approval for the construction of Dincel walls in an unspecified location as to the vertical extent, would be to render the engineer’s plans inconsistent with the balance of the material that forms the development consent, which do not identify in words or on any of the plans, including the elevations, the intention to construct Dincel walls to the northern and southern brick walls (either internally or externally) at any level of the building. Accordingly, the weight of the material read as a whole would indicate that approval was not granted for the construction of Dincel walls at level three of the building by the 2020 CDC.

56. There can be no doubt from its clear terms that the 2020 CDC permitted the removal of the existing timber roof frame and the construction of a new roof frame. The question, however, is what was the approved form of that new roof frame? There are patent inconsistencies in the architectural drawings; the engineer’s drawings; the application form; and the approval. There are references to the “replacement” of the roof frame and the retention of the “existing roof form”. Such statements, taken on their own, would suggest that the roof form, as it existed, is being removed and replaced with a different structural system and re-tiled such that from its external appearance it would be indistinguishable from what previously existed. However, what is shown (to the extent that any real detail is provided in the approved plans) is a roof form capable of being quite different in material respects from what existed.

57. There is little, if any, real detail of the form of the roof and whether it replaces what was existing or proposes a different form of roof. This question primarily turns on whether the roof form sought and approved is limited to that part of the roof that springs from the external walls and is proposed to be tiled (as was the existing roof form) or whether it includes the Outriggers that project perpendicular to the external walls and protrude beyond the end of the tiles, a feature which was not an element of the existing roof.

58. Having regard to the totality of the 2020 CDC, the task of determining what was approved as the roof form is very difficult for the reasons outlined above. However, attempting to give the consent some meaning in accordance with the principles of construction, it would appear that the roof form with the proposed tile treatment and the Outriggers (in so far as they form a perpendicular protrusion as shown in the engineer’s details at sheet S08-04 on the roof plan) is the extent of what was approved.

59. Consistent with that interpretation, the architectural plans, in elevation and section, show such protrusions in that form, namely as perpendicular protrusion beyond the tile extension of the roof. Such would seem to suggest that the architectural plans, being read consistently with the balance of the plans, designed a roof with Outriggers.

60. However, there is one element of the architectural plans that does not feature in the engineer’s details, that is, where the architectural plans show in the roof plan a line around the outer edge of the Outriggers and in elevation the Outriggers are shown as a horizontal line the length of each face of the building. There is no note or detail to explain what is intended by that line. The only reference in the architectural plans to the roof detail is a requirement to refer to the engineer’s plan for detail. To read it as providing for something more than the engineer’s plan would be to seek to draw more from the plan than it offers. In order to understand this line to mean anything more than merely an indicative line, some detail as to: materials; form; and treatment would be required. There is no such detail.

61. Accordingly, doing the best with the inherent challenges within the terms of the 2020 CDC, I find that the 2020 CDC approved the roof form and the Outriggers in so far as they form a perpendicular protrusion as shown in the engineer’s details at sheet S08-04 on the roof plan. That depiction does not show a connection between the Outriggers nor an infilling of the spaces between them, as has been constructed and illustrated at photograph 6 at [23] and photograph 9 at [32] above. To that extent, these connecting and infilling works have been carried out without development consent.

62. As for the roof tiles, clearly with the extent of the work proposed the existing roof tiles would have needed to be removed in order to replace the roof frame. There is no part of the proceedings before me that asserts that the roof tiles, as a separate element, were not able to be removed and replaced (as the 2020 CDC anticipates) as exempt development. Therefore, no development consent would be required to undertake such work, and none is proposed nor granted by the 2020 CDC.

63. Having regard to the determination of the work that the 2020 CDC and the 2017 CDC approved, I make the following findings:

1. The 2017 CDC did not authorise the erection of the Dincel walls to the dwelling;

2. The 2020 CDC did not authorise the erection of the Dincel walls to level three of the dwelling;

3. The 2017 CDC did not authorise the removal of the roof frame or tiles (except for the installation of the internal raked ceiling and the replacement of the solar tiles); and

4. The 2020 CDC did authorise the replacement of the existing timber roof frame with a structural steel roof frame that included an element described as Outriggers, being elements perpendicular to the external walls below the line of the tiles but excluding any infill between the Outriggers or a linking or connecting steel element horizontally along the outermost end of the Outriggers. Further, the 2020 CDC, did as it was necessary to carry out the approved work, authorise the removal of the roof tiles.

64. On the basis of those findings, a determination of the remaining issues is capable of being made.

Validity of Stop Work Order

65. A Council may give a development control order in accordance with s 9.35 of the EP&A Act. Such an order may include an order as provided for in s 9.34. Such orders include an order referred to as a Stop Work Order in Schedule 5, Part 1, Order 2 of the EP&A Act to:

stop building work…carried out in contravention of this Act.

66. It is this power that the Council relied upon to issue the Stop Work Order the subject of these proceedings.

67. The giving of such a development control order is subject to s 9.36 that provides:

Provisions relating to orders

Part 4 of Schedule 5 contains provisions relating to the giving of orders and related matters.

68. The Respondent in these proceedings contends that the Stop Work Order is invalid as it failed to comply with the provisions of Schedule 5 in respect to:

1. The manner of purported service of the Stop Work Order;

2. The adequacy of the time given for compliance with the Stop Work Order;

3. The adequacy of the reasons given for the Stop Work Order; and

4. Whether, at the relevant date of the giving of the Stop Work Order, there was a sufficient basis in fact to enliven the power to give the order.

69. Each of these grounds will be addressed in turn.

Was the Stop Work Order served in accordance with the requirements of the EP&A Act?

70. A development control order is to be given in accordance with the provision of cl 4(1) of Schedule 5 of the EP&A Act that provides:

4   Giving and taking effect of orders

(1)   A development control order is given by serving a copy of the order on the person to whom it is addressed and takes effect from the time of service or a later time specified in the order.

71. Section 10.11 of the EP&A Act, in so far as it relates to an individual (such as is this case), provides:

10.11   Notices

(1)   Where under this Act any notice or other document is required to be given to or served upon any person, the notice or other document may be given or served—

(a)   in the case of an individual—

(i)   by delivering it to him or her, or

(ii)   by sending it by prepaid post addressed to him or her at the address, if any, specified by him or her for the giving of notices or service of documents under this Act, or, where no such address is specified, at his or her usual or last known place of abode or his or her last known place of business, or

…

(c)   by sending it by facsimile or electronic transmission (including for example the Internet) to the person in accordance with arrangements indicated by the person as appropriate for transmitting documents to the person.

(2)   A notice or other document shall, in respect of a notice or other document sent by prepaid post in accordance with subsection (1)(a)(ii) or (b)(ii), be deemed to have been given or served at the time at which the notice or other document would be delivered in the ordinary course of post.

72. The Council does not contend that the Respondent was personally served with the Stop Work Order as provided by in s 10.11(1)(a)(i) and relies on service in accordance with ss 10.11(1)(a)(ii) and/or 10.11(1)(c).

73. The Council contends that the Stop Work Order was served on the Respondent in accordance with the requirements of the EP&A Act in a variety of ways:

1. It was served by email on 30 January 2020, by sending it to the Email Address in accordance with arrangement indicated by the Respondent as appropriate for transmitting documents to him: s 10.11(1)(c). If service was effected by this process the date of service and the time for the coming into effect of the Stop Work Order would be 30 January 2020 by operation of s 13A of the Electronic Transactions Act 2000;

2. It was served by post to the Post Office Box being the address specified by the Respondent for the giving of notices or service of documents under the EP&A Act: s 10.11(1)(a)(ii). If service was effected by this process, the date of service and the time for the coming into effect of the Stop Work Order would be, as agreed between the parties as the ordinary course of post for the purposes of s 10.11(2) two to three business days after posting, namely 5 February 2020 at the latest;

3. It was served by post to the Post Office Box being the Respondent’s last known place of business: s 10.11(1)(a)(ii), and would be served as for (2) above and would be taken to have been served and the time for the coming into effect of the Stop Work Order on 5 February 2020 (on the basis of the same agreed calculation of delivery time in (2) above). In closing submissions, the Council conceded that there was insufficient evidence to permit a finding that the Post Office Box comprised the Respondent’s last known place of business (Council’s supplementary note at [18]);

4. It was served on the date that the Respondent became aware of the Stop Work Order which on the evidence of the Respondent was 7 February 2020; and

5. It was “informally served” in accordance with the practice of the parties to send documents either by email to the Email Address or by post to the Post Office Box: In the matter of Australasian Barrister Chambers Pty Limited [2020] NSWSC 304 at [16] and Howship Holdings Pty Ltd v Leslie (1996) 41 NSWLR 542 at 544-5.

74. The Respondent does not dispute that the Stop Work Order was sent in the manner and on the dates referred to in respect of the email and postal communication or that, if that constituted service, he does not dispute the calculation of the relevant date of service and thereby the time for the coming into effect of the Stop Work Order.

75. The Respondent contends that service was never effected as the purported service by post and email was not in accordance with the requirements of the EP&A Act. Further, it is said that if service was not so effected, such a defect was fatal to the Council’s case and could not be cured by the Respondent becoming aware of the Stop Work Order by other means. The lack of proper service is due to:

1. The Respondent never indicating that he would accept service of development control orders by email at all or to the Email Address;

2. The Respondent had never indicated that service of development control orders could be made to the Post Office Box, nor was that address his “last known place of business”;

3. The giving of the Notice of Sale on 3 January 2018, that indicated the “Address for Service of Notices” as the Post Office Box to which the Stop Work Order was sent by prepaid post was not an indication of his address for service as required by s 10.11(1)(a)(ii); and

4. The Respondent had notified the Council by letter dated 22 February 2019 that his address for service for all correspondence relating to the Premises should be to a postal address nominated which was not the Post Office Box to which the Stop Work Order was addressed or the Email Address.

Was the Stop Work Order served by email in accordance with s 10.11(1)(c) of the EP&A Act?

76. The Stop Work Order was transmitted on 30 January 2020 at 5.41pm by email to the Email Address. The Email Address was accepted by the Respondent to be his business email address that was in service and accessible by him on 30 January 2020.

77. The content of the email was:

Ash,

Please find attached copy of Council letter dated 30/1/2020 Revoking Council’s Stop Work Order dated 20/12/2019 & a Stop Work Order dated 30/1/2020 for 6 Woloroi [sic] Crescent Tamarama.

Please Note - Originals sent in post.

78. The documents were attached to the email as PDF documents and each attachment was addressed to the Respondent at the Post Office Box. It was not disputed by the Respondent that if he had been prepared to receive service by email the delivery of the email attaching the Stop Work Order to the Email Address on 30 January 2020 would have the effect that the email would be deemed to have been received by him on that date by operation of s 13A of the Electronic Transactions Act 2000.

79. However, in order for such transmission to constitute service it is necessary to be satisfied, on the balance of probabilities, that the provision of a “document” that was required to be served, was capable of being served by email “in accordance with arrangements indicated by the person as appropriate for transmitting documents to the person” as was required by s 10.11(1)(c).

80. The EP&A Act does not prescribe the manner of communicating the arrangements referred to in s 10.11(1)(c). In particular, there is no stated requirement that such arrangements must be indicated in writing, orally or even expressly. The terms “arrangement” and “indicate” are not defined and are, therefore, to be given their ordinary meaning. The Macquarie Dictionary relevantly defines the terms as meaning:

Arrangement…1. The act of arranging…

Arrange…2. To come to an agreement or understanding regarding…

Indicate…4. To state or express, especially briefly or in a general way…

Indication…1. Anything serving to indicate or point out, as a sign, token, etc…

81. The ordinary meaning of these words suggests a degree of informality less than the giving of a formal statement that delivery by email is an appropriate means for transmission of documents to a person. This informality of indication is also reinforced by the statutory language used in the section as a whole. With respect to service by post, the address is to be “specified” by the person. That word is defined in the Macquarie Dictionary as meaning:

Specify…1. To mention or name specifically or definitely; state in detail. 2. To give a specific character to…. 4. To make specific mention or statement.

82. The reference to the need to “specify” a postal address but “indicate” an arrangement for electronic transmission suggests, by the context, that less than formal notice is required for an email address. The reference to “arrangements” being indicated also reinforced the lack of formality of notice. Having regard to the statutory language and context and the ordinary meaning of the words I accept the submission of the Council that the person can, by conduct, indicate the necessary arrangements.

83. Further, to the extent that it is submitted by the Respondent that the person must expressly indicate that the arrangement is suitable specifically for the service of development control orders, the provision of the section does not indicate such a limitation. Section 10.11 is expressed to include “any notice or other document”. A development control order would be such a document. The means by which service can then be effected is not limited to a class of documents. If an email address has been indicated as appropriate for the “transmitting of documents to the person” then such indication will include all classes of documents unless specifically excluded by the indication of arrangements (which can also be inferred from the conduct of the parties).

84. In this case, the Council relies upon the historical conduct of the parties in the use of the Email Address for communications between it and the Respondent in connection with the development at the Premises as evidence of the indication of arrangements for email.

85. That evidence includes direct email correspondence between the Council and the Respondent in the period between January 2019 and January 2020 and reproduced as Annexure AB to the Affidavit of Mr Hilt sworn 8 May 2020. These emails indicate that the parties corresponded with each other primarily by email using the Email Address. In fact, it appears that the non-verbal communications by the Respondent to the Council were (with the exception of one letter dealt with below) exclusively made using the Email Address during this period. These emails included responding to complaints, responding to proposed development control orders and actual development control orders. This communication was directly between the Respondent and the Council. The Council, on the other hand, communicated directly with the Respondent both by post to the Post Office Box or by email to the Email Address with copies of documents also being sent to the Post Office Box or by post.

86. There was no indication by the Respondent (either express or by conduct) in any of this email correspondence that the Email Address or the use of email was not appropriate for the transmission of documents. Documents were received and sent by him to and from the Email Address.

87. There were only two occasions where a reference to email addresses was made during this period of communication. The first, an email from the same Email Address from the Respondent on 11 March 2019 to the Council where the email stated, inter alia:

Lastly, would you kindly as I have requested in the past, send all correspondence to Mr Hartley (our lawyer) as our home is under construction without Mail Box. If emailed, I would appreciate it if you could copy the architect and myself on it.

The second in correspondence from Mr Hartley, the Respondent’s solicitor during part of 2019, by letter dated 8 July 2019 in which he stated, inter alia:

The development control order is dated 24 June 2019 however we are instructed that it was received by our client on 1 July 2019. We request that all correspondence from Council in relation to the subject development be forwarded to us by email, rather than sent to our client’s post office box.

88. These two communications do not indicate that the Email Address is an inappropriate means for the transmission of documents but rather identifies that the Respondent wishes to add Mr Hartley as an authorised person to receive communication whilst reinforcing his desire to continue to receive emails in addition to Mr Hartley. This does not indicate a state of affairs inconsistent with the Respondent indicating an arrangement for the transmission of documents by email, rather it reinforces the inference that such an arrangement was in place.

89. Having regard to the totality of this evidence it is reasonable to infer from his conduct that the Respondent had represented that he was prepared to receive communications relating to the Premises by email sent to the Email Address. These communications included references to development control orders such that it is also reasonable to infer that the Respondent had not, by conduct, limited the class of communications which were acceptable to be given by email to the Email Address.

90. In the alternative, the Respondent asserts at paragraph [12] of his Affidavit that he had changed the address for service of notices by letter addressed to Mr Hilt of the Council which was dated and sent by post on 22 February 2019. The letter stated:

We have received a time sensitive notice dated 11 February Ref: NO-4113 today, some 11 days after it was dated.

This may have been due to late postage by the Council or late delivery by the Post Office to post box addresses.

A time sensitive or important document should not be subject to such delays. Accordingly, to correct our part, we have provided the council with a change of address notification from PO Box to the address below:

[Macquarie Place address provided]

Please be advised that in future all correspondence with regards to [the Premises], should be sent to the above address and not the PO Box.

91. In oral evidence the Respondent gave evidence as to the posting of the letter in the following terms (T211 lines 21-24):

Q.   What did you do with the letter when you wrote it?

A.   I typed this letter and I put it in a prepaid Australia Post envelope and I put it in the post box at Double Bay which is outside of the post office Double Bay on the corner of I believe it's Kiaora Road and New South Head Road.

92. The Respondent stated that he was alone when he posted the letter and, apart from this recollection of posting the letter, the Respondent kept no record of the posting of the letter or any other correspondence sent by him. Further, there was no general practice in his business that he would be the one to post correspondence. Sometimes it was he who would post letters and sometimes those that assisted him would post letters.

93. The Council and Mr Hilt have no record of receipt of this letter. The Council submits that the Court would find that it was not in fact sent to the Council on the date in January, or at all, and that “[the Respondent] prepared and back-dated it on or before 16 February 2020 with the objective of denying that he had been effectively served by the Council” to the Post Office Box: Council’s closing submissions at [140].

94. The Council says that the first time it became aware of the 22 February 2019 letter was when it was sent to its solicitors by Mr Gough, the Respondent’s solicitor, by letter dated 16 February 2020 where proper service of the Stop Work Order was raised for the first time. This letter was received after the class 1 appeal against the Stop Work Order had been filed. The Council contends that at no time in the 12 months between 22 February 2019 and the letter of 16 February 2020 had the Respondent (or any person on his behalf) referenced either the letter of 22 February 2019 or the Macquarie Place Address as indicating the appropriate address for the delivery of documents to him.

95. The Respondent contends that the 22 February 2019 letter effectively “specified” an address for service as the Macquarie Place Address and by the absence of the identification of an email address he did, by inference, indicate that email, and in particular email to the Email Address, was not an appropriate arrangement for the delivery of documents to him. In accordance with the specificity of the letter of 22 February 2019, service to the Email Address or Post Office Box was not effective service.

96. Neither party submitted that the 22 February 2019 letter was one to which the provisions of s 10.11(1)(b)(11) or 10.11(2) would apply. Whilst the Respondent made no submissions as to whether the provisions of s 76 the Interpretation Act 1987 would operate in connection with the said letter, the Council did recognise the potential for its operation at [129] of its closing written submissions. Accordingly, for the purposes of these proceedings it is appropriate to consider whether the provisions of s 76 of the Interpretation Act1987 apply to the 22 February 2019 letter and the consequence of such application to the facts of this case.

97. Section 76 of the Interpretation Act provides for a rebuttable presumption of service if there is evidence of posting. Section 76 provides:

76   Service by post

(1)   If an Act or instrument authorises or requires any document to be served by post (whether the word “serve”, “give” or “send” or any other word is used), service of the document—

(a)   may be effected by properly addressing, prepaying and posting a letter containing the document, and

(b)   in Australia or in an external Territory—is, unless evidence sufficient to raise doubt is adduced to the contrary, taken to have been effected on the seventh working day after the letter was posted, and

(c)   in another place—is, unless evidence sufficient to raise doubt is adduced to the contrary, taken to have been effected at the time when the letter would have been delivered in the ordinary course of post.

(2)   In this section—

working day means a day that is not—

(a)   a Saturday or Sunday, or

(b)   a public holiday or a bank holiday in the place to which the letter was addressed

98. Considering the provisions of s 76 of the Interpretation Act, the posting of the letter to the Council would be sufficient for the rebuttable presumption of service to operate. Accordingly, if the letter was posted, as is deposed to by the Respondent, the letter would be presumed to have arrived seven business days after posting which would presume service on or about 7 March 2019. This presumption would operate even though the Council has no record of receipt.

99. However, the Council asserts that the 22 February 2019 letter was never received by it. If it were received, a record of its receipt would have been made in accordance with the Council’s usual practice. The Council also goes further and contends that the letter was never sent at all, and if that submission is accepted, then there would be sufficient evidence to raise doubt and the presumption would be rebutted.

100. The Respondent gives clear and unequivocal evidence that he did post the 22 February 2019 letter in the terms and in the manner outlined above at [90] and [91]. The Council contends that this evidence should not be accepted as evidence of the truth of what occurred.

101. Where the Court is invited to make a finding that the evidence is not evidence of truth, two factors must be present before such a finding is capable of being made: it is necessary that the Court identify the reasons it has concluded that the truth has been deliberately withheld; and that the witness must have been given an opportunity to deal with the criticism: New South Wales v Hunt (2014) 86 NSWLR 226 at [32]-[40].

102. The appropriate approach to be taken where such a submission is put was the subject of the recent decision of Pepper J in UTSG Pty Ltd v Sydney Metro (No 6) [2020] NSWLEC 63 at [168]-[170] and [173] where her Honour identified the principles, which I respectfully adopt, that are relevant to determining whether the witness is a witness of truth:

168   In arriving at this conclusion, and in making the findings that I have regarding Ms Singh’s credit, I am mindful that two conditions must be established: first, it is necessary for the Court to identify the reason or reasons why it has concluded that the truth has been withheld; and second, Ms Singh must have been given the opportunity of responding to the criticism (Kuhl v Zurich Financial Services Australia Ltd [2011] HCA 11; (2011) 243 CLR 361 at [67], State of New South Wales v Hunt [2014] NSWCA 47; (2014) NSWLR 226 at [32]-[40] per Leeming JA and Omaya Investments Pty Limited v Dean Street Holdings Pty Limited (No 5) [2020] NSWLEC 9 at [56]-[59] per Duggan J).

169   In respect of the first condition, what is required is “a proper analysis of the competing evidence, so as to ‘engage with, or grapple or wrestle with the cases presented by each party’” (Mitchell v Cullingral Pty Ltd [2012] NSWCA 389 at [116] quoted in Hunt at [37]). There must, moreover, be clear and cogent proof of the findings made (Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66; (1992) 67 ALJR 170 cited in Hunt at [37]).

170   In respect of the second condition, there is a substantial difference between the rejection of a person’s evidence and a finding that she, he, or they deliberately lied (Hunt at [40]). The distinction between an imperfect recollection and a fabrication was put in the following way in Smith v New South Wales Bar Association [1992] HCA 36; (1992) 176 CLR 256 (at 268), “something more than mere rejection of a person’s evidence is necessary before there can be a positive finding that he or she deliberately lied in the giving of that evidence”.

…

173   As was stated in the seminal decision of Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336, which I have endeavoured to apply in making my findings (at 361-362):

…when the law requires the proof of any fact, the tribunal must feel an actual persuasion of its occurrence or existence before it can be found. It cannot be found as a result of a mere mechanical comparison of probabilities independently of any belief in its reality. No doubt an opinion that a state of facts exists may be held according to indefinite gradations of certainty; and this has led to attempts to define exactly the certainty required by the law for various purposes. Fortunately, however, at common law no third standard of persuasion was definitely developed. Except upon criminal issues to be proved by the prosecution, it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal.

Was the 22 February 2019 letter in fact posted to Council?

103. In contending that the letter was not in fact posted, the Council relies upon a number of factors to contend that it was not:

1. That the clarity of the Respondent’s recollection of posting is inexplicable in the circumstances of the case;

2. That the surrounding evidence where the Respondent did not raise the Macquarie Place Address in circumstances where the Council (and others) continued to communicate with him via the Post Office Box was irreconcilable with the posting of the letter; and

3. The Respondent has demonstrated a tendency to give evidence that is not truthful to support the case he wishes to make such that absent some corroboration his evidence should either not be accepted or treated cautiously. In particular, the Respondent’s evidence as to:

1. The delivery of the 2020 CDC to Mr Hilt at the site inspection of 13 January 2020 was false;

2. The instructions he gave to his solicitor for the purpose of the interlocutory hearing was false;

3. The change of address for rates notice received by the Council on 30 February 2020 which was said to have been sent on 29 January 2020 by the Respondent was designed to mislead and was false; and

4. The Respondent stated that he had received advice from his current solicitor that it was lawful for him to carry out work prohibited by the Stop Work Order if it was for safety reasons. Such statement was false.

104. The Respondent disputed that any such findings should be made as any inconsistencies in the Respondent’s evidence was explained either by a usual lack of memory of precise details or because the matters upon which the complaint was made were matters the Respondent relied upon other people as they were matters outside his expertise.

105. As to the Respondent’s clarity of recollection of the posting of the letter, the Council’s submissions are to be accepted. It is unlikely that the Respondent would recall that almost twelve months ago he placed the envelope in a “pre-paid” envelope and delivered it to the mail box on that date (or at all). The Respondent’s own evidence suggests that the event was not one that was memorable; it did not coincide with any other event that would reinforce the recollection. Further, it was not reliant on any evidence of a practice by the Respondent to post all letters, it being a task shared by him and his staff. Nor is there any record of the letter being posted, by way of a note or other record.

106. Further, the posting of a letter to the Council is not consistent with what appears, from the evidence, to be his usual practice. His usual practice was to email the Council from the Email Address where he communicated with the Council in connection with the Premises.

107. The clarity of his recollection is also inconsistent with the evidence of his memory in the usual course of his dealings. For example, he had difficulty in recalling:

1. Details of his absence from Sydney due to a family emergency in February 2020;

2. Details of construction works on the premises, including dates and circumstances for the installation of the new roof frame; and

3. Details of to whom he handed documents at the site inspection of 13 January 2020.

108. Accordingly, the Respondent’s recollection of the posting of the letter should not, absent more, be treated as evidence of the posting of the letter and is sufficient to raise necessary doubt as to whether it was in fact posted.

109. The second matter that was submitted was that the evidence of the posting of the letter is inconsistent with the Respondent’s actions after the date it was said to have been posted.

110. The assertion that it was sent on that date is inconsistent with all correspondence with the Council up until the letter from Mr Gough of 16 February 2020. In particular:

1. Whilst the 22 February 2019 letter purports to be in response to the late receipt of the notice of intention to give a development control order dated 11 February 2019, the letter in response to that order sent by his solicitor, Mr Hartley, dated 25 February 2019, makes no mention of the change of address for future correspondence but does (as recited at [87] above) request that all correspondence be emailed to him, rather than sent to the Macquarie Place Address stated in the 22 February letter;

2. On 12 March 2019 (after receiving the email recited at [87] above) a development control order was sent to the Respondent’s solicitor by email and by letter addressed to the Respondent at the Post Office Box;

3. On 3 April 2019 a show cause notice was sent to the Post Office Box and to the Respondent’s solicitor by email;

4. The Respondent filed a class 1 Appeal against the development control order dated 12 March 2019;

5. On 6 May 2019 a revocation of development control order was sent to the Post Office Box and to the Respondent’s solicitor by email;

6. On 24 June 2019 a development control order was sent to the Post Office Box. A response was received from the Respondent’s solicitor, which contained the reference to sending emails to him as recited at [87] above;

7. A development control order was served at the Post Office Box on 20 December 2019; and

8. A notice of entry dated 9 January 2020 was sent to the Post Office Box and then emailed on 10 January to the Respondent’s solicitor.

111. From the first communication from the Council dealing with the construction work at the Premises until the giving of the Stop Work Order the Council consistently corresponded with the Respondent at the Post Office Box. The Respondent did not, either by himself or through those who represented him, raise the use of the Post Office Box. This conduct is irreconcilable with the Respondent having posted the letter of 22 February 2019. If that letter had been posted then, at the very least, a reference to it would have been made in some of the correspondence, particularly as the Respondent in such correspondence raised, in terms, the means by which he wished to receive correspondence. I do not accept the Respondent’s explanation for this failure being that he was satisfied with the delivery of material as it was going to his solicitor and therefore, he was not interested in the fact it was also going to the Post Office Box. If this explanation were to be accepted, it does not explain the fact that after his solicitor ceased to act and correspondence was still being sent to the Post Office Box the address for service was not raised.

112. Further, notwithstanding the lodging of an appeal to this Court from the 2019 Stop Work Order, the Respondent did not raise the issue of the failure of service. If it were the case that the Respondent had advised the Council of the Macquarie Place Address then it is unexplained and irreconcilable with the conduct of the Respondent that such an important (and on the Respondent’s case crucial) matter was not raised with the Council during the conduct of those proceedings and was only raised for the first time on 16 February 2020 in the appeal against the Stop Work Order.

113. In addition, the Council relied upon the assertions that the evidence given by the Respondent relating to the delivery of the 2020 CDC was not to be accepted. At [46] and [47] of the Affidavit of the Respondent he deposed that:

46.    As I had just received approval for the construction of the northern wall on 7 January 2020 in CDC 2020, I took a copy of that CDC to the site in preparation for our meeting. I showed Tony Hilt and the lawyers a copy of the approved CDC 2020 plans whilst standing in the back yard looking at the western elevation and comparing the plans with the building. A conversation took place to the following effect:

I said:   "Do you guys see the depicted Dincel wall on the drawings on the North? This is what Council alleges is work without approval along the fence at the front which was built 38 years ago and I understand the neighbour has sent an email to Tony Hilt confirming that. Is that correct Tony?"

Tony Hilt:   "Yes. I got the email. With regards to the plans, The Council in its wisdom decided to archive these plans. I only have electronic copies which do not demonstrate a clear picture of any of these plans".

I said:      "Would you like to take my copies?"

Tony Hilt:   "Yes please"

I said:   "Here is the full set of all approved drawings, including CDC of 2017 and 2020. Additionally, there is the copy of quote [sic] and details for the northern fence wall, I hope we can settle that matter too".

47.   I handed to Tony Hilt a Yellow Manila folder with all the plans.

114. In oral evidence Mr Hilt denied that this conversation occurred or that he had been handed the 2020 CDC. He deposed at [16(g)] of his affidavit sworn 8 May 2020 that:

Mr Samadi did not hand to me a yellow manila folder, or copies of plans by any other means, during that site inspection.

115. The lawyers that the Respondent deposed to being at the site inspections were Ms Mallos and Ms Norquay. At [5] and [7] of her affidavit Ms Mallos deposed that:

5.   During the inspection I recall standing in the backyard of the Property with Mr Samadi, Mr Hilt and Ms Norquay. Mr Samadi handed to Ms Norquay a number of documents. I did not review or handle any of those documents that day or since that day.

…

7.   I do not recall Mr Samadi referring to or showing me, or showing Mr Hilt in my presence, copies of any complying development certificate issued in 2020 in relation to the Property during the inspection.

116. At [6]-[11] of her affidavit Ms Norquay deposed:

6.   During the inspection I recall standing in the backyard of the Property with Mr Samadi, Mr Hilt and Ms Mallos. Mr Samadi handed me a number of documents which included:

(a)   a copy of Complying Development Certificate No. 17/2744-1;

(b)   a quotation from Sydney Fencing dated 20 December 2018; and

(c)   drawing A0050, which Mr Samadi had written 'CDC No. 17-/2745-1' on in red pen.

7.   I kept these documents in a bundle when l returned to the office. On 8 May 2020 I located that bundle in my office. l did not review or remove any documents from it in the intervening time. A copy of the documents in the bundle, being the documents which Mr Samadi handed me on 13 January 2020, are annexed and marked "B".

8.   I attach these documents as a record only of what was provided to me at the 13 January 2020 site inspection, and not for any other purpose in these proceedings. I am instructed that Council does not consent to those CDC records being placed into evidence for any other purpose.

9.   I did not hear any conversation take place between Tony Hilt and Mr Samadi as described by Mr Samadi at paragraph [46] of that affidavit while we were standing in the backyard (or at any other time during the inspection of 13 January or otherwise).

10.   I do not recall Mr Samadi referring to or showing me, or showing Mr Hilt in my presence, copies of any complying development certificate issued in 2020 in relation to the Property during the inspection.

11.   Had I been shown copies of or referred to any complying development certificates issued in 2020 by Mr Samadi, I would have made a note of it and would have reported it to Melissa Mallos, Michael Winram and the Council employees instructing Maddocks. The first that I became aware of the 2020 CDC which is in issue in these proceedings was 27 February 2020.

117. Ms Norquay and Ms Mallos were cross-examined to the effect that the 2020 CDC could have been given to Mr Hilt and they had not seen the exchange. They both denied, in the circumstances, such an explanation was open. Mr Hilt squarely denied it.

118. The Respondent relied upon a photograph taken of him at the meeting holding a manila envelope. That photograph is equally consistent with the recollections of the other persons present at the meeting that documents were given to Ms Norquay and therefore does not operate to support the Respondent’s evidence of what occurred such that the evidence of the other persons in attendance would be rejected.

119. The evidence of the Respondent as to what occurred at this meeting is not to be accepted. It is telling that the Respondent apparently gave material to Ms Norquay at the site inspection yet there is no reference to this in his affidavit. He was unable to explain this omission in oral evidence. It is difficult to reconcile why the “bundle” of documents would be given to one person yet another document which formed part of the bundle would be excised and given to another person at the same meeting, and yet not observed by any person in attendance on that day. I do not accept the Respondent’s evidence that the 2020 CDC was delivered to any person at the site inspection on 13 January 2020.

120. The Council also submitted that the Respondent was also prepared to give false instructions to his solicitor where those instructions were thought to assist the Respondent’s case. There was evidence of an email to the Respondent from his solicitor after the first interlocutory hearing, the text of that email was:

Ash,

I appeared before Justice Moore this afternoon in the Interlocutory Application by Waverley Council seeking Orders that no work be undertaken on the roof and northern or southern walls until further Order of the Court.

Council presented to the Court a photograph showing the entire roof structure has been completed. This of course is contrary to the advice you gave me that only two of the trusses had been installed.

The Judge was not impressed. After some argument and discussion, the following undertakings were given:

1.   Until further Order of the Court, the Respondent, his servants and agents cease all work on the roof and northern and southern walls on the land at 6 Wolaroi Crescent, Tamarama other than the installation of a tarpaulin over the existing roof structure as at 3 March 2020.

2.   The Respondent to provide access to the Applicant to inspect all works on the land at 9:00 a.m. on Wednesday, 11 and 18 March 2020.

I have requested that the hearing of the substantive appeal be set down urgently and the Judge indicated that we should do that on Thursday's call over.

It is clear from the photographs that the structure is now structurally secure and the only issue was making the building water-proof. The Judge commented that as the floor of the third level appeared to be a concrete slab, there would be no need to provide weather protection over the slab. He agreed to allow a tarpaulin over the entire third floor.

I appreciate this is not the result you were expecting, however, the Judge on reviewing the photographs of the roof as it was when the Order was given and the photograph taken this afternoon was of the opinion that the work had continued unabated.

Please ring to discuss.

121. The Respondent, in cross-examination, sought to explain this by suggesting that the word “truss” was not his word (T283 lines 1-50). He did not, in substance, deny that he had provided to his solicitor instructions that the steel roof had not been installed which were not in fact true at the time that they were given. Nor did the Respondent seek to explain how, absent incorrect information being given to his solicitor, his solicitor could have held the impression that the roof frame was incomplete. Further, there is no material consequent upon the receipt of this email that demonstrated that the Respondent took issue with the solicitor’s characterisation of the instructions given. The only evidence adduced is that this email was forwarded, without comment by the Respondent, to the project engineer for consideration.

122. In addition, the Council also contended that the Respondent had given false evidence that he had completed and delivered to Council, via its online portal, a change of address for rates on 29 January 2020, which he had in fact completed and forwarded this notice on 30 January 2020, being the date of the giving of the Stop Work Order which was sent at 5.41pm that day

123. The Respondent deposed at [51] of his Affidavit that:

On 29 January 2020, I completed an on-line form on the Applicant’s web site to only change the postal address for the receipt of rates notices. Annexed hereto and marked “O” is a copy of the completed form which I submitted to the Applicant on that day. I did not change the address for the receipt of notices that I provided to the Applicant on 22 February 2019 (being Annexure “B”).

124. The document annexed discloses that an online form (of which a screenshot was taken) was completed by the Respondent and inserted in the customer reference number field was “29/01/2020”. The form was then sent electronically to the Council.

125. Uncontested evidence was adduced by the Council from Ms Nguyen, a digital communications officer at the Council, who deposed in her affidavit that the Council system simultaneously receives and records the receipt of a form such as that completed by the Respondent. An interrogation of the Council’s records disclosed that the form was sent to and received by the Council at 19.52 on 30 January 2020. Her affidavit also discloses that the customer reference number is a field that is required to be populated by the user and is not automatically generated. Another similar form completed by the Respondent indicates a customer number in this field.

126. The Council contended that he had entered the date in the customer reference area in an attempt to deceive. He denied this contention and indicated that perhaps, as he did not know his customer reference number, he entered the date.

127. Based upon the uncontested evidence of the Council officer it is irrefutable that the document was completed and sent on 30 January 2020 and not on the date deposed by the Respondent. The insertion of the date in the customer reference number has no reasonable explanation and the only inference available on the evidence is that it was inserted with the intention to indicate that the address for service of rates had changed on the day prior to the giving of the Stop Work Order. There is no reasonable explanation that would permit the Respondent’s evidence to be accepted in relation to this matter.

226. However, the Outriggers, as approved by the 2020 CDC, do not have this function of covering the building. Therefore, as a feature they are located proximate to the roof but they do not function as the roof (being the upper covering of the building). For that reason, they should not be considered in the calculation of the pitch of the roof. The roof pitch is therefore 28.8% and does not alter the pitch by more than 5%.

227. Accordingly, the 2020 CDC did not authorise a change in pitch of the roof by more than 5% and was therefore not granted in breach of the standards required by cl 4.4(1)(cb) of the Codes SEPP and, therefore, was capable of being characterised as complying development.

Delivery of CDC to Council and other irregularities

229. Section 4.28 of the EP&A Act makes provision for the obtaining of a complying development certificate. Subsection 11 makes specific provision for the giving of notice of the grant of such a certificate in the following terms:

(11)   Post-determination notification On the determination of an application for the issue of a complying development certificate—

(a)   the council or accredited certifier must notify the applicant of the determination, and

(b)   the accredited certifier must notify the council of the determination, and

(c)   if the determination is to issue a complying development certificate, the council or accredited certifier must notify any other person, if required to do so by the regulations, in accordance with the regulations.

230. Clause 130(4) of the Regulations requires:

(4)   For the purposes of section 4.28(11)(b) of the Act, the accredited certifier must cause notice of his or her determination of an application for a complying development certificate to be given to the council by forwarding to it, within 2 days after the date of the determination, copies of—

(a)   the determination, together with the application to which it relates, and

(b)   any endorsed plans, specifications or other documents that were lodged with the application or submitted to the accredited certifier in accordance with clause 127, and

(c)   any complying development certificate issued as a result of the determination, together with any associated fire safety schedule, and

(d)   the record of any inspection made for the purposes of clause 129B in relation to the issue of the complying development certificate unless the inspection was carried out by the council, and

…

231. Clause 134 of the Regulations also provides the form of the complying development certificate which encompasses a number of the other irregularities identified by the Council.

232. There is no dispute on the evidence that the 2020 CDC was granted on 7 January 2020 and that the Respondent was notified of its grant on that day. At the conclusion of the evidence there was also no dispute that the Second and/or Third Respondent did not notify the Council of the grant of the 2020 CDC within the two days required by the Regulations. There is no dispute that the 2020 CDC was received by Council, but there is a dispute as to when it was received.

233. The Council contends that the 2020 CDC was received by it by post on or about 25 February 2020, being the date borne by the stamp placed on Council’s copy of the 2020 CDC. This date is consistent with the date of the banking of the certifier’s cheque sent with the 2020 CDC which is shown in the Second Respondent’s bank statement as being cashed on 26 February 2020.

234. The Respondent contends that the 2020 CDC was either handed to the Council personally by the Respondent at the site inspection of the Premises on 13 January 2020 or when sent by the Second and/or Third Respondent by pre-paid post in the ordinary course on or about 14 January 2020. For the reasons outlined at [119] above, I do not accept that the 2020 CDC was given to the Council at the site inspection on 13 January 2020. Even if it had been given over, such delivery would not have satisfied the requirements of s 4.28 of the EP&A Act or cl 130(4) of the Regulations as that delivery was not by or on behalf of the certifier.

235. In light of the evidence of the certifier, the Second Respondent, that at the absolute earliest the 2020 CDC was posted to the Council on 14 January 2020, there is no doubt that the requirement was breached. The question of by how many days was the 2020 CDC notified late is not a matter that determines breach but may influence the exercise of the Court’s discretion. The consequence of such breach turns on whether such a breach was intended by the legislature to have the effect of invalidating the giving of a complying development certificate.

236. As outlined at [198] above, the EP&A Act makes specific reference to the circumstances in which a complying development certificate can be declared to be invalid. Those circumstances relate to the issuing of a complying development certificate in circumstances where it was not authorised to be given. The delivery to the Council of a copy of the complying development certificate is a post-determination action and therefore does not fall within the class of breaches anticipated by s 4.31 of the EP&A Act. That is, it is an event that occurs after the complying development has been given and becomes operational; it does not relate to the validity of the giving of such certificate. It is therefore necessary to determine whether it is intended that the failure to comply with the requirement to provide the complying development certificate could otherwise render the 2020 CDC invalid.

237. Having regard to the legislative context there does not appear to be an intention that a breach of the sort complained of by the Council is to produce invalidity of the complying development certificate. Such indicia include:

1. The express provision in s 4.31 dealing with invalidity is limited in scope as to the factors that may produce invalidity;

2. The requirement to notify the Council does not affect the date on which the complying development comes into effect. The complying development certificate becomes effective and operates from the date endorsed upon it: s 4.29(1) EP&A Act. The time for the lapsing of the certificate is taken from the date endorsed and not the date notified to either the applicant or the Council;

3. The consequence of the failure to notify the Council is that the Council will be unable to ascertain whether the carrying out of work is pursuant to an authority such as a complying development certificate. However, the Council is able to become aware of an intention to carry out such building work and satisfy itself of the lawfulness of the work by the notice requirements for the appointment of a principle certifier and the commencement of work as required by s 6.6 of the EP&A Act. Failure to comply with these provisions would comprise a breach of the requirements of the EP&A Act to which the civil enforcement provisions of Division 9.5 of the Act would apply and also provides for a criminal sanction to which the provisions of Division 9.6 would apply. Therefore, there are alternate means by which any consequence of the deficiency can be brought to the Council’s attention and remedied if required without the need of invalidity;

4. The obligation falls to the certifier to notify of the giving of the complying development certificate and not the holder of the benefit of the certificate. Such circumstances would tend to indicate an intention that the beneficiary not be disadvantaged by the actions of the third party: Burwood Council v Ralan Burwood Pty Ltd (No 3) (2014) 206 LGERA 40 at [178]; and

5. To the extent that a failure to notify may prejudice a person seeking to assert the invalidity of the complying development certificate, the time limit for the bringing of such proceedings is calculated by reference to the date on which the complying development certificate is notified on the Council’s website (s 4.58) and the time limit is calculated for the purposes of s 4.59 from the date of publication (cl 137 of the Regulations).

238. For those reasons, the legislative context indicates that a failure to provide a copy of the 2020 CDC within two days of its issue would not lead to invalidity of the certificate.

239. The other “irregularities” identified by the Council are also subject to the same legislative context, but with less compelling reasons to suggest that the legislature intended for a failure to comply to produce an invalidity. For the same reasons, those asserted non-compliances would not produce an invalidity and therefore do not arise for determination as to whether those provisions were in fact breached in this case.

240. Therefore, the 2020 CDC was invalid due to the non-compliance with the BCA. The fact that it is not invalid for these other reasons does not affect that finding of invalidity.

Breach of orders for entry

241. The Council contends that on two occasions the Respondent failed to provide entry into the dwelling on the Premises in accordance with a Notice of Entry served and described at [21]-[22]. Service of such Notices must be made in accordance with s 10.11 as set out at [71] above.

242. The Council’s officer, Mr Hilt, was an investigative officer authorised by the Council pursuant to the provisions of s 9.14 of the EP&A Act. Mr Hilt was thereby authorised to issue the Notices of Entry and was the author of the two relevant Notices. The Notices were served by email to the Email Address and to a postal address in Crackenback NSW which had been notified by way of an online change of address for rates form via the Council’s online portal as referenced at [14] above.

243. The Respondent does not deny that: the Notices were prepared by an authorised investigative officer; the Notices were otherwise validly prepared; or that access was not granted to that officer. The Respondent has put the Council to proof of those issues. The stated defence to this ground is that the Notices were not served in accordance with s 10.11 of the EP&A Act, on the same basis with respect to the Email Address, and on the basis that the postal address was not the address for service of Notices but for rating purposes only.

244. An investigative officer is not permitted access to residential premises unless the provisions of s 9.17 of the EP&A Act are complied with. That section requires:

9.17 Notice of entry of residential premises

(1)   This section applies to the entry into any part of premises used for residential purposes only for the purpose of inspecting work being carried out under a consent, approval or certificate under this Act or for the purpose of issuing a building certificate sought in respect of the premises.

(2)   An investigation officer or the investigation authority must give the owner or occupier of the premises written notice of the intention to enter the premises before a person authorised to enter premises under this Division does so.

(3)   The notice must specify the day on which the person intends to enter the premises and must be given before that day.

(4)   Notice is not required to be given—

(a)   if entry to the premises is made with the consent of the owner or occupier of the premises, or

(b)   if entry to the premises is made under the authority of a search warrant issued under this Division, or

(c)   if entry to the premises is required because of the existence or reasonable likelihood of a serious risk to health or safety, or

(d)   if entry is required urgently and the case is one in which the investigation authority has authorised in writing (either generally or in the particular case) entry without notice.

245. If an order for inspection is given, it must be complied with, as provided for in s 9.25 of the EP&A Act. Failure to comply may give rise to civil enforcement of the order or criminal sanctions.

246. For the reasons outlined above at [89], service through the Email Address was effective service. This complaint relates to the same provision and is disputed on the same grounds as with the service of the Stop Work Order. As service was properly effected by the use of the Email Address, the further provision by post was not in derivation of that good service and therefore need not be determined to determine the dispute between the parties in this matter.

247. The two Notices provided the details required by s 9.17 and was issued by an appropriately authorised officer. That officer has given unchallenged evidence that he attended the dwelling on the appointed days and was unable to gain access. Therefore, the Respondent failed to comply with the two Notices of Entry in breach of the obligation to do so as required by s 9.25(1) EP&A Act.

Discretion

Sections 25B and 25E of the Land and Environment Court Act

248. Where there is a claim for invalidity of a development consent (which includes a complying development certificate) the Court has a duty to consider whether it should make an order under Part 3 Division 3 of the Land and Environment Court Act 1979 (LEC Act) in lieu of a declaration or determination of invalidity: s 25E LEC Act.

249. The findings that have been made at [215] above is that the 2020 CDC was invalid as it gave consent for development for which it was not authorised to give, in that, it approved development that did not comply with the provisions of cl 3.7.2.7 of the BCA in that it encroached further than the allowable amount to the northern and southern boundaries of the Premises. Therefore, it is necessary to consider whether the exercise of the discretion required by s 25E is available in these particular circumstances, and, if so, whether the discretion should be exercised.

250. The Respondent has submitted that, in this case, if there were a finding of invalidity on such a basis, the Court should make an order in accordance with s 25B of the LEC Act which provides:

25B   Orders for conditional validity of development consents

(1)   The Court may, instead of declaring or determining that a development consent to which this Division applies is invalid, whether in whole or in part, make an order—

(a)   suspending the operation of the consent in whole or in part, and

(b)   specifying terms compliance with which will validate the consent (whether without alterations or on being regranted with alterations).

(2)   Terms may include (without limitation)—

(a)   terms requiring the carrying out again of steps already carried out, or

(b)   terms requiring the carrying out of steps not already commenced or carried out, or

(c)   terms requiring acts, matters or things to be done or omitted that are different from acts, matters or things required to be done or omitted by or under this Act or any other Act.

251. The Respondent contends that instead of making a declaration of invalidity on this basis that a form of order in the following terms would be an appropriate exercise of the discretion (it is noted that the Respondent refers to the eaves in the proposed order which is the same feature as is referred to as the Outriggers in this judgement):

a.   that the following documents be prepared and presented to the certifier within a specific time:

i.   a fully detailed specification for construction of the eaves be prepared, and

ii.   a report prepared by a suitably qualified person be prepared to confirm that the specification satisfies the performance based requirements of the BCA.

b.   the 2020 CDC be reissued with a condition that requires compliance with the specification so prepared.

252. The Respondent contends that the breach can be “regularised” by the application of the performance-based requirements of the BCA.

253. The Council submits that where the development consent comprises a complying development certificate it cannot lawfully apply the performance-based requirements for the reasons outlined at [209(4)] above.

254. For the reasons set out at [209(4)] above, cl 130(2) of the Regulations operates so as to preclude the certifier from exercising the power to grant the 2020 CDC even if it was accompanied by the performance-based solution anticipated in the Respondent’s proposed order. In those circumstances, the 2020 CDC cannot be validated by the taking of this proposed step as it was a step that was not authorised in the granting of the 2020 CDC. In the circumstances of this case, there are no steps that are available that would permit the 2020 CDC to be validated. Further, the breach is an integral part of the 2020 CDC and there is no reasonable way to sever the non-compliant element of the consent to render it valid.

255. Where the invalidity arises from an absence of power and that absence of the power is not able to be cured by the taking of steps, the discretion referred to in s 25B is not available: Brown v Randwick City Council (2011) 183 LGERA 382 at [87] as per Preston CJ. To do so is, by Court order, permitting a further breach of the provisions of the EP&A Act in an attempt to overcome an existing breach. This is not what the LEC Act (or the EP&A Act) intended by the reservation of the discretion to the Court; see by way of analogy, albeit in the context of the discretion exercised under s 9.46 of the EP&A Act, Cando Management and Maintenance Pty Ltd v Cumberland Council (2019) 237 LGERA 128 at [138]-[142] as per White JA (Beazley P and Meagher JA agreeing).

General discretion

256. The making of any order or declaration in this Court, in proceedings of this nature, is discretionary: s 9.46 EP&A Act. The principles for the exercise of that discretion are not mandated except to observe that the discretion is to be exercised judicially: Warringah Shire Council v Sedevcic (1987) 10 NSWLR 335 at 339-240 as per Kirby P. Accordingly, the exercise of the general discretion is available for consideration on all grounds raised in the proceedings and is not just limited to the finding of invalidity of the 2020 CDC. It also raises considerations additional to those raised by the s 25E duty in the LEC Act, and therefore is also a discretion available to the findings relating to the 2020 CDC notwithstanding that it has been determined that the discretion mandated by s 25E LEC Act is not available or should not be exercised.

Discretionary considerations for 2020 CDC invalidity

257. The nature of the invalidity found was a requirement that had as its foundation the protection of the Premises and adjoining properties from the spread of fire. There is no evidence before me that the carrying out of further work in reliance upon the 2020 CDC would provide sufficient protection from the spread of fire if the approved 2020 CDC works (as defined above), or in some other modified form, were implemented or to the extent that they have been constructed be allowed to remain. None of the experts that gave evidence in this matter had the necessary qualifications to express an opinion as to whether a performance-based solution could be appropriately demonstrated. Absent some evidence that the fire protection of the Premises or the adjoining properties would be adequately protected notwithstanding the breach of the encroachment provisions of the BCA, the discretion cannot be exercised in the Respondent’s favour.

258. The Respondent also contended that the declarations relating to the validity of the 2020 CDC were bare declarations with no consequential orders. The Council relies upon the orders sought in [2B] and [5] of the Further Amended Summons as consequential orders and therefore there are no “bare declarations” sought.

259. The submissions of the Council are accepted. With respect to the 2020 CDC there are consequential orders proposed and therefore this matter does not arise for consideration.

Discretionary considerations for breach of the Stop Work Order

260. There were no submissions put that there would be an appropriate basis to exercise the Court’s discretion in the event that the Stop Work Order was found to have been breached. Accordingly, a consideration of the exercise of discretion relating to this breach is unnecessary.

Discretionary considerations for the breach of the orders for entry

261. The primary submission put by the Respondent as to why the Court should not exercise its discretion with respect to these breaches is that the Court would be reluctant to make a bare declaration. As the Council has not sought any consequential relief in the event of a finding of breach, and only seeks a declaration, the general approach of the Court is to not make bare declarations.

261. Additionally, the Court should consider all this bearing in mind the overall object of civil enforcement proceedings being to remedy breaches of the EP&A Act, not to punish a perceived wrongdoer. As Preston CJ has observed in Great Lakes Shire v Lani (2007) 158 LGERA 1 at [23] (citations omitted):

…care must be taken not to use a declaration of breach of a statute in civil enforcement proceedings as a substitute for a criminal prosecution. It is not appropriate for the Court in the exercising of its civil enforcement jurisdiction to punish wrong-doers under the guise of remedying a breach.

263. In the alternative, it is submitted that the breach was not deliberate for the reasons outlined in the Respondent’s affidavit at [60]-[62], namely that the Respondent was out of the State of New South Wales during the period 18 February to 18 March 2020 and that he had activated an automated email advising persons of this fact. He states that the Notices for Entry were not received by him.

264. The Council seeks the declarations relating to the failure of the Respondent to give the relevant access required by the Notice of Entry on the basis that it serves the public purpose of denouncing the conduct of the Respondent.

265. Biscoe J observed in Willoughby City Council v Wu [2014] NSWLEC 165 at [23]-[24] (citations omitted):

A declaratory judgment pronounces upon a legal state of affairs whereby the controversy is determined and is res judicata. But it does not contain any order that can be enforced against the respondent. As a declaration decis non-coercive, it is a relatively unaggressive form of relief. However, in the sphere of civil enforcement of planning and environmental law it has come to be seen as an emphatic way for the Court, in appropriate circumstances, to mark the community's disapproval of the respondent's conduct. Declaratory relief is often coupled with an enforceable injunction. An advantage of seeking both is that if the coercive claim fails, a declaration may still be obtained. There may be circumstances where a declaration is appropriate but an injunction is not. Conversely, there may be circumstances where an injunction is appropriate but a declaration is not.

A declaration must serve some useful purpose. A declaration that resolves a factual claim that a breach of the law has occurred cannot be described as being of no utility. A declaration serves a useful purpose if it is in the public interest to make it. The planning laws are enforced in the protection of the public interest…

266. Pepper J noted in Hill Top Residents Action Group Inc v Minister Administering the Sporting Venues Authorities Act 2008 (No 4) [2011] NSWLEC 6 at [20] (citations omitted):

…the making of the declarations marks the disapproval of the Court of conduct that Parliament has proscribed. It also serves to discourage others from acting in a similar way and may, therefore, be seen to have a deterrent and educative element. The granting of the declaration may accordingly be seen as advancing the regulatory objects of the EPAA.

267. I accept that the making of the declarations relating to the Notices of Entry do serve the public purpose of denouncing the Respondent’s conduct in failing to facilitate an inspection of the construction works by a duly authorised officer of the Council. Where development occurs, particularly where the consent is not granted by the Council but is given by a private certifier, the Council has an oversight role. This role cannot be properly exercised if a person does not permit appropriate inspections when requested and upon the giving of notice.

268. Further, the Respondent’s absence from the State, or his failure to revert to his email whilst absent, does not excuse the conduct. He is operating as an owner builder. He did not shut down building work in his absence. Mechanisms should have been put in place while work was being undertaken to ensure that the person with the responsibility for the works was able to be contacted and respond to issues as they arose if the building work was to continue. I also note that during this absence the Respondent did from time to time communicate with his solicitor, his builder, his engineer, and the Court during this period and it was not unreasonable to expect him to monitor his email for important communications relating to the building.

269. For each of the above reasons, there is no discretionary matter that has been raised that would operate as sufficient to outweigh the general public interest in the performance of development in accordance with the requirements of the EP&A Act and the Court, therefore, declines to exercise its discretion in favour of the Respondent.

Conclusion and orders

270. For the reasons set out herein, it is appropriate that the Court makes the declarations and orders sought by the Council in prayers 2 to 5A of the Further Amended Summons filed on 13 May 2020, with a modification with respect to the description of the extent of the unauthorised works in its declaration 2B. The appropriate modification to that declaration to reflect the findings is expressed in [271(3)] below.

271. The Court makes the following declarations:

1. A declaration that the Respondent is in breach of s 9.37 of the EP&A Act by carrying out development at 6 Wolaroi Crescent, Tamarama (the Premises) in breach of a development control order issued by the Council on 30 January 2020 pursuant to s 9.35 of the EP&A Act;

2. A declaration pursuant to ss 4.31 and/or 9.46(1) of the EP&A Act that the Complying Development Certificate No. 2019/424/02 Mod, approved by VB Certifier Pty Ltd, dated 7 January 2020 and received by the Applicant on 25 February 2020:

1. Has been issued in breach of the EP&A Act; and

2. Is invalid and of no effect;

3. A declaration that the Respondent has carried out development without development consent on the Premises in breach of s 4.2 of the EP&A Act, namely the construction of a horizontal linking element to the farthest extremity steel eaves/outrigger frame and the infilling of the area between the steel eaves/outrigger frame on the dwelling;

4. A declaration that the Respondent is in breach of s 9.25 of the EP&A Act by failing to give access to the Premises on 26 February 2020 in contravention of the Notice of Entry issued by the Council on 18 February 2020 pursuant to s 9.17 of the EP&A Act; and

5. A declaration that the Respondent is in breach of s 9.25 of the EP&A Act by failing to give access to the Premises on 28 February 2020 in contravention of the Notice of Entry issued by the Council on 27 February 2020 pursuant to s 9.17 of the EP&A Act.

272. The Court orders that:

1. Until further order of the Court the First Respondent, his servants and agents, cease all work on the roof, and northern or southern walls on the Premises at 6 Wolaroi Crescent, Tamarama; and

2. The exhibits are returned.

**********

Decision last updated: 23 June 2020