Wollongong City Council v Masood Falamaki

[1998] NSWLEC 110

Land and Environment Court

of New South Wales

CITATION:	Wollongong City Council v. Masood Falamaki [1998] NSWLEC 110
PARTIES:	APPLICANT Wollongong City Council RESPONDENT Massod Falamaki
FILE NUMBER(S):	40091 of 1997
CORAM:	Talbot J
KEY ISSUES:	:-
LEGISLATION CITED:
CASES CITED:
DATES OF HEARING:	03/11/98, 05/11/98
DATE OF JUDGMENT:	11/05/1998
LEGAL REPRESENTATIVES:	APPLICANT Mr C W McEwen (Barrister) Peedom Brodie & Ward Solicitors RESPONDENT Appeared in Person

JUDGMENT:

HIS HONOUR: I perceive that these proceedings have now come to the point where a final determination of the matters in dispute between the parties can be resolved by the making of orders which should ensure that the structure which presently stands partly completed on the property number 12 Arter Avenue, Figtree can be completed according to the design which the respondent, Dr Falamaki, has developed in relation to it, subject to the completion of structural works which will be necessary for the support of the adjacent land, again which are not in a state of final completion.

The issues between the parties and the history of this dispute are explained and set out in a judgment that I delivered on 19 June 1998 where I reached the provisional view that, subject to an appropriate certification by a structural engineer, I was satisfied that the work could be completed. In the ensuing months, there has been further discourse between the applicant and the respondent and it is clear, from a reading of the correspondence and hearing submissions from both parties today and on 3 November, that the parties still find it difficult to have an amicable and mutually satisfactory relationship in regard to the prospect of the structure being completed in a way which is satisfactory, both from a practical point of view and from a legal aspect.

While Dr Falamaki was addressing me on a form of draft orders presented by Mr McEwen, on instructions from the council, I took the opportunity to place on the record my concerns regarding certification which is now proposed for the completion of the structure and the preparation and certification of working drawings required in regard to it. It is now agreed that the Court should not make an order which unconditionally requires the structure to be demolished and the land to be restored but that rather a procedure be established through the making of orders which will enable the council to be satisfied that the plans, drawings and calculations carried out by Dr Falamaki or on his behalf are indeed professionally correct and that the structure, when completed, can be certified by an engineer.

The form of orders as suggested by the council is, in the Court's opinion, an appropriate resolution of the dispute. Dr Falamaki does not take serious issue with the form of the orders, except to the extent that he is concerned about the hardship and expense that will be brought to bear upon him in regard to the preparation of working drawings and their certification by an independent, suitably qualified structural engineer. Dr Falamaki expresses the same concern in relation to the costs involved in engaging an independent structural engineer to provide the ultimate clearing certificate when the structure has been completed.

I am mindful of the expense that will be necessarily involved on Dr Falamaki's account and I have already made it quite clear to Dr Falamaki that I will weigh, and I do weigh, that hardship against what I perceive to be the public interest in ensuring that this structure is completed in a way that is satisfactory from an engineering point of view. I have no doubt, and there is no evidence to suggest otherwise, that Dr Falamaki is a suitably qualified engineer who may indeed be in a position to provide the necessary certification. The problem is, of course, that Dr Falamaki is a party to these proceedings and does not and cannot bring the requisite degree of independence that is required in a circumstance where parties are in serious dispute and have been in serious dispute over a long period of time.

The Court needs to be assured that somebody with the suitable qualifications certifies the work without carrying any burden of the history of the matter on their shoulders. Dr Falamaki put to me that, in the event that he provided the certification, his public indemnity insurance would be available to cover the situation in the event that something went wrong. Certainly, the cover provided in financial terms by professional indemnity insurance is a benefit, but it is only that. It is an indemnity in money terms. The professional indemnity insurance cover does not preclude the physical consequences that might arise in the event that there is a building collapse, that is, in terms of personal hurt and injury that may be caused to individuals in a physical sense and in an emotional sense if their property is damaged as a consequence of the building's failure.

The Court is concerned therefore that there be the necessary, as it sees it, level of independence brought to the certification. The Council is now satisfied that a certificate in the form which is exhibit 17 will be satisfactory and that the certificate in that form, subject to one alteration to which Dr Falamaki agrees, answers the indication that was given by the Court in reasons for judgment on 19 June 1998. The Court can now be satisfied that the unresolved questions, as they were on 19 June 1998, can be answered by the provision of the certificate in the form of exhibit 17.

The concern over the last two hearing days has been principally the absence of a connection between the certificate provided by D'Amici Colombo Pty Limited and the material upon which the certificate has been based. That, in the Court's opinion, was a self evident, necessary requirement for the validity of any certification and that common sense, apart from professional expertise, should have dictated that the certificate made specific reference to what was being certified. That problem has been overcome, subject to the calculations and design documents which are referred to being physically attached and becoming part of the certificate to be furnished.

I propose to order that the building be demolished but I will suspend the operation of that order subject to four conditions which have been drafted and agreed between the parties, subject to the qualifications that Dr Falamaki has expressed and with which I cannot agree for the reasons I have outlined. It will indeed be an unfortunate result if Dr Falamaki is not able to find some way of affording the cost of the necessary certification, but the Court is not prepared to allow the structure to stay or to be completed unless the necessary independence is brought.

I note the application Class 4 seeks certain relief Mr McEwen which may not now be appropriate. Were you seeking order 4?

McEWEN: Yes your Honour what we're seeking in short is, in the event that the conditions are not complied with, that the structure be removed and then one would need, it's probably not a satisfactory way to do it, but the letter of Longmac Associates is annexure I to the affidavit of Mr Lett of 24 April. Whilst my associate is looking for that, the action referred to is to recommend that a rock-fill buttress be used to infill the box cut and provide passive support to the exposed cut, that's it in short. So that if your Honour was going to make a general order, I would recommend that your Honour would say and that the land be rehabilitated or restored to a condition where it poses no risk of lack of support to adjacent land.

HIS HONOUR: I, yes I've got the letter.

McEWEN: And on page 3, the action is referred to.

HIS HONOUR: Well it's only short term?

McEWEN: I'm aware of that. The paragraph following or the last paragraph does indicate that it could be retained in the longer term so that I would respectfully submit that a more general order would be more appropriate so as to not constrain the methods of rehabilitation of the land to a particular approach. And as your Honour's observed, the land has changed since 21 April '97.

HIS HONOUR: Order One: That the building partly constructed on the property known as number 12 Arter Avenue, Figtree be demolished and the land restored to its pre-development condition.

Order Two: Order 1 is suspended and to have no effect until further order provided the respondent complies with the following directions and orders:

1. That a certificate in the form of the certificate dated 4 November 1998, comprising part of exhibit 17, with the calculations and design documents referred to therein attached, be submitted to the Council of the City of Wollongong by 4.00pm on 12 November 1998.

2. Working drawings for the proposed residence to be lodged with the Council of the City of Wollongong on or before 4 December 1998 and to be accompanied by a certificate by a suitably qualified and independent structural engineer. That the working drawings are in accordance with the certified calculations and design documents for the proposed residence.

3. All structural works necessary for the support of the adjacent land to be completed on or before 5 April 1999, subject to any reasonable extension of time to take account of only wet weather.

4. That the respondent provide a clearing certificate to the Council of the City of Wollongong. The certificate is to be by a suitably qualified and independent structural engineer and to the effect that the structural works have been erected in accordance with the certified working drawings.

Mr McEwen you said to me that that certificate was required within one month of the completion of the works in three. That can't be right. The works in three are only the support.

McEWEN: That's right. That's all we're after. That's all that any of the certificates go to, to support the adjoining land.

HIS HONOUR: Well the working drawings--

McEWEN: Go to those issues as well as does the existing--

HIS HONOUR: Not the dwelling?

McEWEN: Well aspects of the dwelling certainly are tied in with the support of the adjacent land, such as floor slabs, such as beams, such as foundations.

HIS HONOUR: Two talks about the proposed residence. Three talks about the support. Four talks about the structural works. You don't want the dwelling certified, you just want the support works certified, is that it?

McEWEN: That's correct because that will clearly catch many aspects of the dwelling.

HIS HONOUR: Well yes but four goes further than that doesn't it?

McEWEN: That's why we said referred to above which means referred to in three, namely the structural works necessary for the support of the adjacent land.

HIS HONOUR: Reword four.

McEWEN: While your Honour's broken your train of thought, your Honour said the 5 April in order three. If your Honour was intending to allow six months, it should have been 5 May in my respectful submission.

HIS HONOUR: So it should, yes. Yes and I will correct 5 April to 5 May thank you. I'll reword four.

4. A clearing certificate by a suitably qualified and independent structural engineer that the structural works referred to in three have been erected in accordance with the certified working drawings be provided to the Council of the City of Wollongong by the respondent within one month of the completion of those works.

Order Three: The question of costs is reserved.

Order Four: Either party has liberty to apply on three days notice.

Order Five: The respondent has leave to provide any further written submissions with respect to costs by 4.00pm on 13 November 1998.

Order Six: The exhibits will be retained until the question of costs is determined.