Woollahra Council v Duarte (No 4)
[2013] NSWLEC 218
•19 December 2013
Land and Environment Court
New South Wales
- Amendment notes
Medium Neutral Citation: Woollahra Council v Duarte (No 4) [2013] NSWLEC 218 Hearing dates: 24 June 2013; written submissions 27 June, 2 and 3 July 2013 Decision date: 19 December 2013 Jurisdiction: Class 4 Before: Sheahan J Decision: (1)The answer to the separate question is "no".
(2)The first respondent's application for an order for her costs thrown away, and the question of the first respondent's likely costs on the determination of the costs issue are reserved.
(3)The exhibits are retained for the present.
(4)The second respondent's materials are to be returned to him by the Registrar.
(5)The balance of these proceedings is stood over to the first List judge list of 2014, namely on Friday 7 February 2014.
Catchwords: SEPARATE QUESTION: construction of development consent - proper interpretation of condition- whether condition ambiguous. Legislation Cited: Civil Procedure Act 2005
Environmental Planning and Assessment Act 1979
Woollahra Local Environmental Plan 1995Cases Cited: Ainsworth v Yarrowee Pty Ltd [2010] NSWLEC 118
Blakeney v Mosman Municipal Council (No 2) [2013] NSWLEC 100
Coffs Harbour City Council v The Minister for Planning and Infrastructure [2013] NSWCA 44; (2013) 193 LGERA 203
House of Peace Pty Ltd v Bankstown City Council (2000) 48 NSWLR 498; (2000) 106 LGERA 440
Mosman Municipal Council v Denning [2002] NSWLEC 227
Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355
Reysson Pty Ltd v Roads and Maritime Services [2012] NSWLEC 17; (2012) 188 LGERA 252
Ryde Municipal Council v Royal Ryde Homes (1970) 19 LGRA 321
Westfield Management Limited v Perpetual Trustee Company Limited & Anor [2006] NSWCA 245
Woollahra Council v Duarte [2012] NSWLEC 223
Woollahra Council v Duarte (No 2) [2013] NSWLEC 12
Woollahra Council v Duarte (No 3) [2013] NSWLEC 70Category: Separate question Parties: Woollahra Council (Applicant)
Charmaine Duarte (First Respondent)
Rodney Duarte (Second Respondent)Representation: Anthony Hudson, solicitor (Applicant)
Rick O'Gorman-Hughes, barrister (First Respondent)
Second Respondent submitted
Wilshire Webb Staunton Beattie (Applicant)
File Number(s): 40330 of 2011
Judgment
Introduction
This judgment deals with questions ordered to be decided separately in these class 4 proceedings (see judgment and orders of Biscoe J on 21 September 2012 - [2012] NSWLEC 223).
The Council by its Second Amended Summons ('SAS'), filed in court on 21 September 2012, sought three declarations and several orders in respect of works done on a terrace dwelling house located at 28 Edgecliff Road, Woollahra (Lot 8 in DP 34035).
Before the court is an aerial photograph (Jenner bundle, p5), which places No 28 in a row of like developments from No 14 to No 32, with No 14 having a side boundary with Tindale Lane and all of them backing on to Icasia Lane.
No 28 is located within the Residential (2b) zone under the Woollahra Local Environmental Plan 1995 ('the LEP'). Development is also regulated by Council's 2000 Development Control Plan ('DCP') for Exempt and Complying Development (Exhibit D1), and the Woollahra Heritage Conservation DCP 2003 ('2003 DCP') (Exhibit W2).
The first respondent is the sole proprietor of the subject property, but the second respondent (her estranged husband) was joined in the matter because of some alleged involvement in the works of which the Council complains. He filed a submitting appearance, save as to costs, and the first respondent argues that, as the second respondent has no interest in the subject land, the relief sought against him would have no utility, as he would not be in a position to comply with any of the substantive orders which were sought against him in the summons.
Attempts to mediate the matter in August 2012 were unsuccessful, and the issues between the parties as at the appointment of the hearing on 24 June 2013, remained those in the SAS, the Amended Points of Claim ('APOC'), also filed on 21 September 2012, and the first respondent's Points of Defence ('POD'), filed on 7 January 2013.
The two questions separated by Biscoe J were:
(a) Whether development consent ('DC') No DA502/2002 (as modified) granted by the applicant Council lapsed as at 8 July 2008.
(b) If the DC has not lapsed, whether the respondents have complied with the DC and the construction certificate ('CC' - including condition 2 of the consent).
Answers favourable to the respondents would conclude the proceedings, but if either question were answered favourably for the Council, the major issue remaining to be litigated would be whether the court should, in its discretion, grant any of the relief Council sought. However, in this respect, Biscoe J noted (in par [5] of his judgment) that it seemed possible that the parties could reach agreement on the further disposition of the proceedings.
The active parties were ordered to negotiate a Statement of Agreed Facts ('SAF'), and, in the course of doing so, they reached a substantial degree of common ground in the proceedings. Council is prepared, after this judgment is delivered, to entertain a (further) s 96 modification application by the first respondent, if appropriate.
As a result of that agreement, the Council conceded that the DC has not lapsed, and, following the luncheon adjournment during the hearing, formally sought leave to further amend the summons (Tp17, LL6-7).
Council eventually deleted paragraphs 1-5 of the SAS, dispensing with any need for this court to deal with the lapsing issue. Its amended Findings and Directions document and its Third Amended Summons ('TAS') were filed with my Chambers on 27 June 2013 (see below [44]).
The only remaining question before the court in this hearing is, therefore:
Whether the following work has been carried out by the first respondent not in accordance with the development consent/construction certificate:-
(a) the ridge line of the roof of the building is 0.468mm [sic - 0.468m] higher than a ridge line level of RL88.682 for the roof of the building.
The Witnesses
The Council relies on the sworn evidence of Craig Jenner, Simon Taylor, and Stewart Dixon. Jenner is the Team Leader Building and Compliance, and Taylor is a Senior Assessment Officer, at the Council. Both have been in their positions for many years. Dixon has been a qualified and registered practising surveyor for approximately 37 years, mostly as principal of his own surveying business.
The first respondent relies upon affidavits from consultant structural engineer Fernando Barros, accredited certifier Gregory Hough ("Get Certified Building Service Pty Ltd"), and the first respondent Charmaine Duarte herself.
The Factual Background
The first respondent became the registered proprietor of the subject property in April 2006, as successor in title to William Topic and Ms M F Nickolls, who had owned the site from March 2003. Allegedly pursuant to a consent, she has since carried out, or caused to be carried out, certain building works on the land.
The relevant DC was issued to Topic (mistakenly spelt "Topie") on 7 July 2003 (DA502/2002 - Jenner Annexure 'C') for "alterations and additions ... including a new first floor level with attic". By the operation of s 95(4) of the Environmental Planning and Assessment Act 1979 ('the Act'), the lapsing date of the consent would be 8 July 2008 (SAF 8-9).
The relevant conditions of that initial DC would appear to be as follows (Jenner bundle, pp6-7):
1. Approved Plans
This consent relates to the work, shown in colour, on plan number Sheet 1 of 1, dated 10 April 2003, drawn by Victor Topic and Associates Pty Ltd, which carries a Council stamp "Approved DA Plans" and the signature of a Council officer [Plan "ST1" in Exhibit W1], except where amended by the following conditions.
2. Modified First Floor Addition
Bedroom 2 and 3, located to the northern end of the first floor addition, are to be deleted. This condition is imposed in order to preserve the significant principal roof form and chimneys of the existing terrace, which are recognised as important character elements for buildings located within a conservation area. Details are to be submitted with the construction certificate application.
3. Amended Roof Design
The roof over the stair to the attic storage facing north is to be hipped. This condition is imposed to minimise the impact of the first floor addition upon the streetscape and the amenity of the area. Details are to be submitted with the construction certificate application.
A s 96 modification application was lodged by Topic on 6 February 2004 (SAF 11). Jenner described (at p25) the proposed modification in the following terms:
- Internal modifications to ground floor comprising relocation of kitchen and staircase
- Internal modifications to first floor bathroom and walk-in-robe
- Addition of a bay window to front elevation of the first floor
- New window openings, with metal louvres along western elevation of first floor and attic level
- New floor to ceiling height windows along western elevation of ground floor
- Increase in height of attic level
- Excavation works including the addition of a staircase to the basement level
The Council requested a geotechnical report in respect of proposed sub-floor excavation works (Jenner Annexure 'D'), the Council's assessment panel (Annexure 'E') approved the application, and Council issued an approval, dated 12 October 2004 (Annexure 'F'), to Topic, on 18 October 2004 (SAF 12-14).
Relevantly, the assessment report included (pp30-31) the following:
11.3 Significant items and group significant buildings
...
The 0.5m increase in height of the attic would be visible from Icasia Lane at the rear. This is discussed as being acceptable in Section 9.3 and 11.5, subject to the 0.3m reduction in height in Condition 2. The proposal is therefore acceptable with regard to Section 3.2 of Woollahra Heritage Conservation Area DCP 2003.
...
11.5 General controls for development
...
Height
The proposed height of the building is unacceptable as the attic level can be interpreted as an additional third level when viewed from Icasia Lane at the rear. It is inconsistent with the general two-storey character of adjoining terraces and is country 9(sic) to CI and C3 of Section 3.4.4 of Woollahra Heritage Conservation Area DCP 2003.
A 0.3m reduction in the roof height would somewhat alleviate this impression of a third storey and would result in a maximum approved attic room height of 2.1m (see Condition 2). In doing so, the windows to the western elevation are not considered to be compromised. In addition, the non-compliance with the floor space ratio would be marginally reduced.
...
Floor to ceiling height
...
The original Condition 2 provided a floor to ceiling height of 2.1m for the majority of the attic level. The modification seeks to maintain a floor to ceiling height of 2.4m. It is recommended that the roof be lowered (see Condition 2), therefore providing a floor to ceiling height of 2.1m. As the attic level is to be used solely for storage purposes, this is acceptable with regard to C5 of Section 3.4.4 of Woollahra Heritage Conservation Area DCP 2003.
Conditions 1, 2 and 3 of the DC ([17] above) were replaced in the modification approval with the following (Jenner bundle, pp40-1):
1. Approved Section 96 Plans
This consent relates to the work, shown in colour, on the plan named 'Sheet 1 of 1', dated 10 April 2003 and drawn by Victor Topic and Associates Pty Ltd, which carries a Council stamp "Approved DA Plans" and the signature of a Council officer, and as amended by the works shown in colour on the plan named 'Sheet 1 of 1', dated 15 October 2003 and drawn by Victor Topic and Associates Pty Ltd, which carries a Council stamp "Approved S96 Plans" and the signature of a Council officer on the plans except where amended by the following conditions. [Plan 'ST2' in Exhibit W1].
2. Roof Height
The roof addition of the attic level is to be reduced by 0.3m in order to lessen the non-compliance with Clause 12AA (b) of Woollahra LEP 1995, [which requires "compatibility with the adjoining residential neighbourhood"], C1 of Section 3.3.4 of Woollahra Heritage Conservation Area DCP 2003 and C1 and C3 of Section 3.4.4 of Woollahra Heritage Conservation Area DCP 2003. [See Exhibit W2].
This is to be achieved by lowering the ridge line of the roof and maintaining the roof pitch and floor levels. Details are to be submitted with the Construction Certificate application.
3. Attic skylights
The uppermost triangular skylight to the north facing elevation of the attic roof is to be deleted. This condition is imposed to lessen the impact of the roof when viewed from the private domain of other properties, to ensure consistency with the row of significant dwellings and to ensure that the new roof plane is consistent with 01 of Section 3.4.8 of Woollahra Heritage Conservation Area DCP 2003.
Details are to be submitted with the Construction Certificate application.
A number of new conditions (21-34) were added to the consent, mainly in relation to dilapidation surveys for both the adjoining property (No 30), and the subject property (SAF 16). Relevantly, the new conditions 22, 31 and 33 provided (Jenner pp42 and 45):
22. Compliance with the recommendations of the geotechnical and hydrogeological reports
The development works are to be undertaken in accordance with the recommendations of the Geotechnical and Hydrogeological report/s prepared by Jeffery and Katauskas P/L Ref: 18844Vlet dated 26 August 2004.
...
31. Certification of the installed groundwater drainage system
The installed groundwater drainage system must be certified by a qualified geotechnical/hydrogeological engineer and be submitted to Council or an Accredited Certifier for approval prior to release of the Occupation Certificate or final building inspection.
In addition, a Maintenance Manual for the installed groundwater drainage system must be prepared and certified by a qualified geotechnical/hydrogeological engineer and must be submitted to Council or an Accredited Certifier for approval prior to release of the Occupation Certificate or final building inspection.
...
33. Retaining walls and drainage
If the soil conditions require it:
(a) retaining walls associated with the erection or demolition of a building or other approved methods of preventing movement of the soil must be provided; and
(b) adequate provision must be made for drainage.
Taylor deposed that he assessed the 2004 s 96 application, and included new conditions 2 and 3 "to address concerns raised in relation to the height of the rear addition", and additional conditions 21-34 to address the proposed sub-floor excavation and the construction of a new staircase from that area to the ground floor.
In early 2007, the first respondent engaged Barros to assist with the preparation of documentation required for a CC (SAF 38). An affidavit sworn by him on 30 April 2012 is before the court, and there is also an agreed account of the findings he made on his inspection on 1 March 2007 (SAF 39).
Also during 2007, emergency drainage works were carried out. The first respondent wrote a letter to the Council in November 2008 in respect of those works, and a building certificate application was also lodged (SAF 18-20). A building certificate was duly issued for those drainage works, on 10 December 2008, Council having assessed the works on the basis that they had been carried out without a CC (SAF 21-22). On 17 December 2008 the second respondent paid to Council $4,191.50 for the footpath damage deposit administration fee (SAF 23).
Hough was appointed as Principal Certifying Authority for the works.
The "first and only" CC issued in respect of the modified DC, and received by the Council (CC 090037), was issued by Hough, and dated 10 February 2010, but Council says that that CC referred only to building works other than the sub-floor excavation works which, it would appear, the certifier viewed as "not to be constructed". Hough deposes that he had legal advice, at the time of issuing the CC, that the DC remained current.
The CC specified that the attic level was to be reduced by 0.3m to comply with modified condition 2, set out in [21] above (SAF 24-27. See also plan 'ST3' in Exhibit W1).
On 19 March 2010, Council received a Notice of Commencement of Building Work from the certifier, signed by the first respondent, as an owner/builder (SAF 28-29). Building works were indeed carried out between 6 April 2010 and approximately August 2010 (SAF 30).
It is to be noted here that both the CC and those building works postdate the 2008 lapsing date. Hough deposes that a neighbouring owner, Conley, complained about him, alleging that he issued a CC after the DC had lapsed. Taylor also notes that a 2010 s 96 application was refused on the basis that DA502/2002 had lapsed, and so could not be modified. (The complaint against Hough was dismissed by the Building Professionals Board.)
On 2 August 2010, certifier Hough served on the first respondent a Notice of Intention to give an order to cease building works on the subject site (Jenner Annexure "AB"), as they "did not comply with the modified [DC]". The Notice required (in schedule 1) certain actions by the first respondent (SAF 31). Hough subsequently decided not to issue any orders or stop-work notices.
All three relevant plans, to which I have referred (ST1-3), contain the notation "work to figured dimensions only, do not scale". ST2 and 3 specified RL 88.732 as the height for the "Underside Attic Ridge". However, no height was specified for the top of the ridge (SAF 32). The SAF goes on to note in this respect (SAF 33-36):
33. If the height of the top of the ridge can be determined by scaling, the proposed ridge line for the roof on the approved plan for the modified development consent and the approved construction certificate plan is RL 88.982 (as scaled from the stated RL of 88.732 for the underside attic ridge as shown on section A-A and the west elevation of these approved plans).
34. If the height of the top of the ridge can be determined by scaling and if condition 2 of the modified development consent required the lowering of the ridge line of the roof by 0.3m then the approved RL for the ridge line of the roof would be 88.682.
35. The ridge line of the roof of the building erected by the First Respondent is RL 89.15 which is 0.468m higher than the level of RL 88.682. The existing ground line levels adjacent to the highest part of the building have been surveyed and measured as between RL 80.61 and RL 80.72.
Particulars
(a) Survey Report from S. J. Dixon & Associates (Stewart Dixon - registered surveyor) dated 6 October 2010 which states "final ridge height of the roof is RL 89.15m Australian Height Datum".
(b) Survey Report from S.J. Dixon & Associates dated 8 August 2012.
36. Building works have been carried out on the land as follows:-
Particulars
(a) The windows installed on the west elevation at the upper and attic levels are different to the approved windows, which included external metal privacy louvres.
(b) Glass bricks have been installed along both the western and the eastern elevations at the upper level.
(c) Full length windows / doors have been introduced to the southern end of the first floor level, opening on to an approved planter bed, instead of selected timber framed sliding windows 2107mm in length.
(d) The southern end of the roof is in a gable form when it should be in a hip form.
(e) The external walls of the upper levels have been constructed in masonry in lieu of the approved timber frame construction.
(f) the constructed finished floor levels are higher than the approved finished floor levels as follows:-
Level
Constructed
Approved
Difference
(i)
upper floor level
83.875
83.632
.243
(ii)
attic floor level
86.495
86.332
.163
(g) The width of the bedroom on the upper floor has been increased by approximately .295m because the walls are masonry walls and not the approved timber framed walls.
(h) The width of the attic storage level has increased by approximately .295m
The SAF then provides (SAF 37 to 39) "an account of work that the first respondent arranged to be carried out prior to [the lapsing date], 8 July 2008, pursuant to the [DC]".
Taylor also deposes that he assessed a development application ('DA') lodged in September 2011, in association with a building certificate application (par 8), and that the works that have been carried out are "not in accordance with the modified development consent and construction certificate" (par 12). Dixon was engaged by Council in October 2010, and identified and reported that the final ridge height of the roof as RL 89.15 AHD. A copy of his report was provided to Council and to Hough. Taylor concluded (par 15) that the ridgeline of the roof of the existing building is 0.468m higher than the approved level of 88.682m (i.e. RL 89.15 minus RL 88.682), and notes that this is "a further non-compliance".
Submissions made at the hearing
In support of his submissions on Council's behalf Mr Hudson relied upon:
(1) Westfield Management Limited v Perpetual Trustee Company Limited & Anor [2006] NSWCA 245, in which Hodgson JA said (at [41]):
41. Another principle to be kept in mind in construing the condition is that a development consent is a document in rem, so that communications between the parties do not form part of the matrix relevant to construction: House of Peace Pty Limited v Bankstown City Council [2000] NSWCA 44, 48 NSWLR 498 at [23] and [27]. However, the Court can have regard to objective circumstances, including the physical circumstances, the plans accompanying the development application, and matters relating to title. ...
(2) Coffs Harbour City Council v The Minister for Planning and Infrastructure [2013] NSWCA 44, in which, on behalf of the Court of Appeal, Preston Ch J said (at [68]):
68. It is well settled that courts attempt to avoid ambiguity or uncertainty by adopting a construction which gives statutory instruments and decisions practical effect: Westfield Management Pty Ltd v Perpetual Trustee Co Ltd [2006] NSWCA 245 at [36]-[40]; Ulan Coal Mines Ltd v Minister for Planning [2008] NSWLEC 185; (2008) 160 LGERA 20 at [36]-[66]. It is only if the ambiguity and uncertainty cannot be resolved by a proper construction of the statutory instrument or decision that the court needs to deal with the question of whether such residual ambiguity or uncertainty causes the statutory instrument or decision to be outside the power to make it.
(3) Ainsworth v Yarrowee Pty Ltd [2010] NSWLEC 118, in which I said (at [41]):
41 Under the principles laid down by the Court of Appeal in House of Peace Pty Ltd v Bankstown City Council (2000) 45 NSWLR 498, at 507-8, [37] and [41], any condition of consent is to be construed according to its written terms, construed in context, having regard to its enduring function (emphasis mine). The enduring nature of the consent encourages "a fair but liberal reading of the rights it confers upon a landowner who may spend considerable money acting upon it and is likely to wish to sell the land sooner or later" (House of Peace at [41]). See also Auburn Municipal Council v Szabo (1971) 67 LGRA 427, especially per Hope J at 434.
Mr O'Gorman-Hughes referred the court only to Mosman Municipal Council v Denning [2002] NSWLEC 227, in which Lloyd J said (at [8] and [16]):
8 There is no doubt that condition 1.6 is ambiguous. In such circumstances the principle explained in Ryde Municipal Council v The Royal Ryde Homes (1970) 19 LGRA 321 at 324 applies:
It must not be overlooked that a consent to the development of land under a prescribed planning scheme is not personal to the applicant but enures [sic] for the benefit of subsequent owners and occupiers, and in some respects a consent is equivalent to a document of title.
I therefore think it sound to say that the legal qualities a consent possesses, or which flow from a consent, are so important that care should be taken to ensure that consents are framed in clear terms and conditions are specified with certainty. Any lack of clarity or certainty is the responsibility of the council and it must take the consequences of any failure to specify accurately or in detail what is consented to as well as any conditions to which a consent is subject.
...
16 As I have said, the condition, if ambiguous, must be construed against the council. In my opinion, a proper reading of the condition in the light of all of the conditions and the plans which have been incorporated into the consent is that the reference in condition 1.6 to glazing is a reference to the glass, that is to the kind of glass, in the southern façade. That is, the existing glass must be the same and any proposed glazing must be the same as at 12 June 2001. The condition read in that way would not rob the consent of its character. It would mean that the designated purpose of the rooms is fulfilled and that there is no need to consider the further question of whether the whole consent is necessarily void.
Mr Hudson submitted that the weight of authority is to the effect that there must be a practical result from the construction of a DC, and that there is no way to give practical effect to the first respondent's DC other than by scaling to find the level of the upper ridgeline. One needs only to "get that level, and do the calculation", for the consent to "do work" (Tp12, L38), and in order to determine "whether something has been breached or not breached" (Tp12, L40). The first respondent is in breach of the DC as the ridgeline erected is 0.468m higher than the allowable height (as derived by scaling).
Mr O'Gorman-Hughes submitted that, while what commonly appears on DA plans, is "figure dimensions take priority over scale dimensions", such notations do not appear on ST1-ST3, which say "work to figure dimensions only do not scale" (Tp21, LL24-7). A question of construction arises because, despite those words, the scale "1:100" also appears. Further he submitted (Tp22, LL33-39):
As a general rule...where a plan isn't as specific as this one where for example it doesn't specify a slab thickness but does only give floor heights one would construe that as entitling the proponent to determine the thickness of the slab at a later stage... This particular plan was so detailed it didn't even leave that for subsequent argument.
Counsel for the first respondent submitted that the consent is clear in that it imposes no maximum height limit. The intention expressed by the conditions is that one must work only to figured dimensions. Any ambiguity in the consent ought to be construed against the Council. The plan is "very specific" in terms of measurements for every other part of the building, but for the topside ridgeline (Tp22, L33). The only height limitation on the plan is that the underside of the ridge shall be no more than the specified dimension, minus 300mm. The Council could have been more specific than it was, but it did not go beyond requiring the roof to be lowered by 300mm (Tp24, LL11-15).
Costs Issues
During the oral hearing, counsel for the first respondent made an application for the usual costs order on the amendment of the summons i.e. that Council pay the first respondent's costs thrown away by the amendment (see s 64 Civil Procedure Act2005).
Counsel appeared for the first respondent at the hearing on a concessional fee basis due to her financial difficulties (see Tp19, LL29-39, and also Woollahra Council v Duarte (No 2) [2013] NSWLEC 12, per Biscoe J at [2]-[3], and Woollahra Council v Duarte (No 3) [2013] NSWLEC 70, per Craig J at [8]).
Council asked the court to reserve the first respondent's costs, and, when I formally granted leave to amend the summons, I reserved the question of the costs thrown away on the amendment, and, to protect the first respondent, I also reserved, in advance, the question of her costs on any argument of that question of costs thrown away (Tp20, LL9-14).
Supplementary documents
As noted in the Introduction to this judgment ([11]), to save costs following the conclusion of the hearing, the parties filed amended documents for the court to consider when arriving at its answer to the question.
The TAS submitted by Mr Hudson on Council's behalf, on 27 June, seeks only:
(a) A declaration that the respondents had carried out works in breach;
(b) An order requiring nominated remedial works "to obtain compliance with the DC", and
(c) Costs.
The revised Finding and Directions document he filed on the same day sought, inter alia:
(i) A finding that some nominated works are in breach;
(ii) A notation of the agreement that the first respondent will lodge, within 28 days of this judgment, a s 96 application including the matters in (i).
(iii) Adjournment of the remaining prayers from the SAS (sic? - "TAS") for further directions.
(iv) The reservation of costs (as per [42] above); and
(v) Liberty to restore to the Friday List Judge list on two days notice.
On that same day, Mr O'Gorman-Hughes filed amended submissions, suggesting a form of words for the first respondent's preferred answer to the remaining (second) separated question, reflecting the SAF.
I invited both active parties to then comment on each other's documents.
Mr O'Gorman-Hughes, on 2 July, accepted the Council's new Findings and Directions document as reflecting the agreement reached during the hearing.
Council's solicitors (in Mr Hudson's absence on leave) noted, on 3 July, that the first respondent's amended submissions "reflect the agreed position between the parties" as to both:
(a) the agreed non-compliances with the DC and CC; and
(b) the sole issue in dispute.
Accordingly, Council raised no objection, and sought to make no further comment, in response to those amended submissions.
Consideration
The established principles of construction of DCs were helpfully summarised by Biscoe J in Reysson Pty Ltd v Roads and Maritime Services [2012] NSWLEC 17; (2012) 188 LGERA 252 at [21]-[28].
In that matter, his Honour also applied to DCs, the general principles of statutory construction as espoused in the seminal case of Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 124 CLR 355. His Honour noted that the words of the DC should take on their ordinary meaning, as the consent authority objectively intended.
Usually, that meaning will correspond with the grammatical meaning, although, the context, consequences of literal interpretation, purpose of development consent, or canons of construction, may require the words to be read in a way that does not correspond with the literal or grammatical meaning (at [28]). Consents should be construed in a commonsense and practical way, both fairly and liberally.
It is relevant to consider the context of the DC in the present case. The DA was for alterations/additions to the existing dwelling, and the DC was granted subject to conditions.
Condition 1 in the original consent refers to the ST1 plans drawn by Victor Topic. Condition 1 in the s 96-modification consent refers to the ST2 plans. In my opinion the plans are expressly incorporated into the consent, and are relevant to the construction of the relevant conditions. Both consents also require the details of amendments to the plans to be submitted with the CC application. The CC plans ST3 are relevant, as they depict in red the reduction of the attic area by 0.3m.
ST1 clearly shows the addition of attic storage space. Levels are provided for the ground floor level, the underside ceiling ground floor ridgeline, the upper floor level, the underside ceiling "bath/WIR" ridgeline, the attic floor level, and the underside attic ridge. However, the plans do not depict the upper ridge line level. The section of the plan titled 'important notes' states "Levels (RL's) shown are taken at finished level, make allowance for tiles, screens etc. In order to establish structural levels". Under the heading of "Notes" ([38] above), the following appear:
"all the dimensions and levels are to be confirmed on site by builder"; and
"work to figured dimensions only, do not scale".
Under the title of each section of the development on the plan, the scale of "1:100" appears.
On ST2 the same notations are found under the headings "Important Notes" and "Notes", as on ST1. The scale is similarly found on the plans under the heading of the different sections of the development. No level for the upper ridgeline has been shown.
The assessment report, referred to in [20] above, is not a document relevant in the construction of the conditions of the DC for the first respondent; it is only relevant to the factual matrix. It is not incorporated, expressly or by implication, in the consent documents, but was merely a step in the process of assessment.
Condition 2 of the original consent deletes bedrooms 2 and 3 to "preserve the significant principal roof form". Condition 3 requires the hipping of the roof facing North to "minimise impact...upon streetscape and amenity of the area". It is clear from these two conditions that Council is concerned with the conformity of the alterations/additions with the surrounding neighbourhood.
After the s 96 modification was granted, Condition 2 required the specific reduction of the roof height by 0.3m to lessen the non-compliance with cl 12AA C1 of 3.3.4, and C2 and C3 of 3.4.4, of the 2003 DCP. The objectives of the LEP are to preserve residential compatibility, amenity and access to views (cl 12AA in Exhibit W2). The 2003 DCP requires the character of additions/alterations or new buildings to be in conformity with existing dwellings (see Exhibit W2, pp2-3).
Clearly the height of the attic is a central issue, in that it requires that the roof be amended to lessen the aesthetic impact on the street, and non-compliance with the LEP and the 2003 DCP.
In construing the conditions with reference to the plans, an ambiguity appears to arise, as there is no maximum roof height prescribed in either of the plans, nor in the conditions. The only amendment of the plans by the conditions, in relation to the roof height, is to reduce that height by 0.3m.
There are two options available in the construction - either the upper ridgeline height was intended to be scaled, or it was not to be specified.
The ambiguity on the face of the plan must be construed against the Council. Scaling of the plan is expressly prohibited, and no upper ridgeline height has been specified. Council could have specified a height limit when the s 96 application was considered.
The court does not accept the Council's position on the remaining question separated by Biscoe J ([7](b)), and will determine it in favour of the first respondent.
Other material received after Judgment reserved
On 27 June, my Chambers received a phone call from the submitting second respondent indicating that he wished to send me further information relating to the hearing. He was told to direct any "inquiries" to the registry.
By both fax and ordinary post on 28 June, the second respondent sent in two documents, entitled, respectively, "Justice Sheehan Associate" and "Justice Sheen Associate".
Having regard to Craig J's remarks in Blakeney v Mosman Municipal Council (No 2) [2013] NSWLEC 100 at [91]ff, my Chambers emailed both of the active parties' representatives on 12 July 2013, notifying them that I had not examined, and did not intend to examine, the second respondent's documents, but offering them the opportunity to examine the materials if they so wished.
A further batch of material was received from the second respondent on 15 July 2013. Again I did not examine the materials, but afforded the legal representatives the opportunity to do so. Yet more material was received from the second respondent on 16 July.
On 21 August 2013, Mr O'Gorman-Hughes notified my Chambers via email that he no longer was instructed in the matter, and that the first respondent would deal with the issue of reviewing any material sent by the second respondent.
On 23 August and 30 August 2013, the second respondent copied my Chambers into an email directed to Mr Flaherty, who had been assisting Mr Hudson.
On 2 September 2013, Mr Flaherty forwarded an email from the first respondent, in which she expressed the intention to withdraw the information the second respondent had sent. Council also noted that it did not wish to review or inspect the second respondent's material, and that it should not be taken into consideration by the court.
The documents received have not been reviewed by me, nor withdrawn, and they played no part in the determination of this matter.
Orders
In all these circumstances, the court makes the following orders at this stage:
(1) The answer to the separate question is "no".
(2) The first respondent's application for an order for her costs thrown away, and the question of the first respondent's likely costs on the determination of the costs issue are reserved.
(3) The exhibits are retained for the present.
(4) The second respondent's materials are to be returned to him by the Registrar.
(5) The balance of these proceedings is stood over to the first List judge list of 2014, namely on Friday 7 February 2014.
**********
Amendments
19 December 2013 - [sic] added
Amended paragraphs: 12
Decision last updated: 19 December 2013
0
7
3