Land and Environment Court New South Wales Medium Neutral Citation: Malass v Strathfield Municipal Council [2020] NSWLEC 168 Hearing dates: 27 November 2020 Date of orders: 27 November 2020 Decision date: 27 November 2020 Jurisdiction: Class 1 Before: Preston CJ Decision: The Court orders: (1) The operation of the order given by Respondent to the Applicant on 14 September 2020 under s 9.34 and schedule 5 of the Environmental Planning and Assessment Act 1979 is partially stayed, such that the following work may be carried out on or before 30 January 2021: (a) Installation of a front door. (b) Completion of the flashings on the skylights to achieve waterproofing. (c) Installation of glass in the window and sliding door frames (being the frames that are already in situ) and seal the glass and frames to achieve waterproofing. (d) Installation of a temporary hoarding to make the entrance to the car parking garage secure. (e) Work equipment may be removed from the site. (2) The partial stay in order 1 is granted subject to the following conditions: (a) The Applicant is, on or before 14 December 2020, to make: (i) the development application; and (ii) building information certificate application described in the letter from Mills Oakley to Planning Lab, dated 20 October 2020 (tab 16, folios 111-113, Exhibit 'RM-1' to the Affidavit of Rabi Malass 29 October 2020). (b) The Applicant is to actively pursue those applications. (c) Upon the Council refusing or being deemed to have refused both applications, the Applicant must take prompt steps to: (i) appeal each of them to this Court; and (ii) file and serve a notice of motion for the consolidation of those appeal proceedings with these proceedings. (d) No other works may be carried out. (e) All work must be carried out in accordance with any conditions of development consent of DA2017/091 that directly prescribe the manner in which work must be carried out. Catchwords: INTERLOCUTORY ORDERS – stay of development control order – development carried out not in accordance with development consent – stop work order – appeal against order – stay of order to allow limited works – partial stay granted on conditions Legislation Cited: Environmental Planning and Assessment Act 1979 s 9.34 Land and Environment Court Act 1979 Land and Environment Court Rules 2007 Cases Cited: CVA Apartments Pty Ltd v Burwood Hotel [2020] NSWLEC 11 Snowy Monaro Regional Council v Cmunt (No 3) [2018] NSWLEC 175 Category: Procedural and other rulings Parties: Sarah Malass (Applicant on the motion) Strathfield Municipal Council (Respondent on the motion) Representation: Counsel: Mr A Gadiel (solicitor) (Applicant) Ms J Ayas (solicitor) (Respondent) Solicitors: Mills Oakley (Applicant) Bartier Perry (Respondent) File Number(s): 2020/291053 Publication restriction: Nil Judgment A stop work order is issued 1. Strathfield Council granted development consent on 22 November 2017 to the demolition of existing structures and construction of a new two-storey dwelling with basement car parking, in-ground swimming pool and front fence at 27 Boden Avenue, Strathfield (the site). 2. A week later, Mrs Sarah Malass purchased the site for the purposes of building the dwelling as the family home for her, her husband and three children. 3. On 30 July 2018, a construction certificate was issued by a private certifier, Mr Hussein, of Prime Building Certifiers, and he was also appointed as the principal certifying authority. 4. On 10 September 2018, an architectural firm, StudioJLA, was engaged by Mr and Mrs Malass to redesign the façade and layout of the house and arrange for the necessary planning approvals to be obtained for the modification of the development consent. 5. In early 2019, Mr and Mrs Malass arranged for construction of the dwelling to commence on the site. 6. On 4 September 2020, the Council received complaints from neighbours alleging that the landscaping that was being carried out was not compliant with the development consent and also expressing concerns about unauthorised levels in the rear entertainment area. 7. On 6 September 2020, the principal certifying authority, Mr Hussein, submitted to the Council an updated landscaping plan. 8. On 10 September 2020, Mr Hussein issued to Mr Malass a written directions notice of non-compliance in construction of the building. The notice described the non-compliance as involving: "Construction not in accordance with Council DA plans and CC plans and specifications. Changes to elevations, ground floor layout and extensive concrete in rear of the property." 1. The notice directed Mr Malass to take steps to remedy the noncompliance: "The developer is to rectify the abovementioned issues or alternatively apply to council for Building information certificate." 1. On 14 September 2020, Mr Hussein sent a copy of the written directions notice to the Council. Mr Hussein asked the Council whether it "is okay to grant the owner until 24/09/2020 to rectify as per the WDN." 2. On 14 September 2020, an officer of the Council inspected the site following further complaints from the neighbour. Inspection revealed extensive non-compliant development on all levels of the building. 3. Later that day, Mr Wong, an officer with the Council, replied to Mr Hussein, saying: "After thorough assessment of the extensive unauthorised development on site [sic]. At this stage, Council has issued a Development Control Plan [sic, Order] - Stop Work order on the premises. This order is in effect immediately until further notice. Please see attached Stop Work order. The physical copy has been sent via mail." 1. As this email advised, the Council issued a stop work order under s 9.34(1)(a) and Item 2 of Pt 1 of Sch 5 of the Environmental Planning and Assessment Act 1979 (EPA Act) on 14 September 2020. The stop work order directed Mr and Mrs Malass to "cease all development work immediately." The reasons given for the stop work order were: "1. Council received concerns from neighbours alleging potential unauthorised work on the premises at 27 Boden Avenue, Strathfield. 2. Onsite inspection conducted by Council's Officer on 14/09/2020 revealed extensive amount of unauthorised development conducted on site. Amongst others, below are non-compliant works during inspection: - Non-compliant underground basement; extensive additional unauthorised basement floor has been constructed; - Non-compliant ground level layout; extensive unauthorised development work compared to approved plans; - Non-compliant first floor level layout; extensive unauthorised development work compared to approved plans; 3. A search of Council records confirmed development constructed on the site differs significantly from what has been approved under DA2017/091." 1. On the same day, Mr Hussein forwarded the Council's email and stop work order to Mr Malass. 2. On 15 September 2020, Mr Malass emailed Mr Wong to explain the situation. Mr Malass said that he had engaged StudioJLA to redesign the façade and layout of the house and seek Council approval for the redesign. He attached plans showing the redesign by StudioJLA and invoices that stated that StudioJLA had commenced documentation to seek Council approval for the redesign. 3. Mr Malass asked whether he could meet with Mr Wong to discuss what could be done. Mr Malass advised that "I have stopped all works as requested by Stephen Clements." 4. Mr Malass addressed an unrelated issue about whether he could proceed with installing a new safety fence between the site and a neighbour, notwithstanding the stop work order. 5. In a separate email, Mr Malass forwarded further plans to the Council. 6. Within an hour, Mr Wong responded to Mr Malass. Mr Wong authorised the construction of a temporary fence "tomorrow". Otherwise, "all other activities is [sic] to be ceased as per the Development Control Order Stop Works issued 14/09/2020." He asked Mr Malass to "please provide basement floor plan, elevation, section, landscaping plans for Council to start the assessment. Further additional documents may be required to complete Council's investigation." 7. On 16 September 2020, the Council notified Mr and Mrs Malass in writing that the submitted plans do not accurately reflect what has been constructed on site. The Council requested them to confirm the accuracy of the plans prior to submitting them to the Council for approval. 8. On 17 September 2020, Mr and Mrs Malass engaged solicitors, Mills Oakley, to advise and act for them in relation to the stop work order. 9. On 21 September 2020, Mills Oakley wrote to the Council advising that they had been engaged to prepare a response to the Council on the stop work order, requesting the Council to defer taking any action on the stop work order for two weeks to allow time for the solicitors to prepare this response, and confirming their instructions that works have ceased in compliance with the stop work order. 10. Later that day, Mr Clements, another Council officer, advised Mills Oakley that the Council "will not take any further action on this matter until your response is submitted to Council. The Order will be extended for a further three weeks to allow for your submission." 11. On 21 September 2020, Mills Oakley wrote to Mr Wong asking again for permission to erect the temporary fencing that had not been able to be erected on the earlier occasion. On 22 September 2020, Mr Wong authorised the erection of temporary fencing on 23 and 24 September 2020. 12. On 23 and 24 September 2020, fencing was erected, although it was more of a permanent nature than temporary fencing. 13. On 8 October 2020, the Council issued to Mrs Malass a notice of intention to issue an order pursuant to s 9.34 and Pt 6 of Sch 5 of the EPA Act, being an order number 3, Demolish Works Order. The terms of the proposed Demolish Works Order were that Mrs Malass must: "1. Demolition [sic, demolish] all authorised [sic, unauthorised] development on site. 2. Conduct all necessary rectification work to ensure development work complies as per DA2017/091 approved plans." 1. Mrs Malass was given until 22 October 2020 to make a submission. 2. On 9 October 2020, Mrs Malass lodged an appeal to this Court against the stop work order under s 8.18(1) of the EPA Act. 3. On 20 October 2020, Mills Oakley engaged a town planner, Mr Cirillo, to prepare a development application and building information certificate application to regularise the non-compliances. 4. On 22 October 2020, Mills Oakley wrote to Mr Wong at the Council submitting that no demolish works order should be issued at this time; as an appeal has been lodged against the stop work order, it would be premature to issue a demolish works order until the appeal against the stop work order has been concluded; Mrs Malass will lodge a development application and building information certificate application; and the making of a demolish works order "will have a profound financial impact on our client and her family". 5. On 29 October 2020, Mrs Malass applied by notice of motion for the stop work order to be stayed until disposal of the proceedings. 6. On 6 November 2020, the notice of motion was listed for hearing on 27 November 2020 and directions were made in the substantive appeal, including arranging a conciliation conference under s 34 of the Land and Environment Court Act 1979 on 23 March 2021. The motion for a stay 1. At the hearing of the motion for a stay today, Mrs Malass sought and was granted leave to amend the notice of motion so as to seek a stay of the stop work order on seven conditions. The conditions included that Mrs Malass is to make, by 7 December 2020, the development application and building information certificate application described in the Mills Oakley letter of 20 October 2020; to actively pursue those applications; if the applications are refused, to appeal to the Court and to apply to consolidate those appeals with this appeal; and to limit the works to be internal to the building, to relate to internal finishes, fixtures and services, to not be works of a structural nature, and to be carried out in accordance with any conditions of the development consent that directly prescribe the manner in which work must be carried out. 2. During the course of the hearing of the motion today, Mrs Malass sought leave to amend further the notice of motion to confine the works that would be allowed to be carried out to only works internal to the building that are for the purposes of making the building waterproof and physically secure. No other works would be permitted to be carried out, however, contractors and subcontractors could access the site for the purposes of removing the equipment. 3. The parties were thereupon given the opportunity to seek instructions and to discuss and, hopefully, agree on a more precise description of the works that would be permitted to be carried out to waterproof and physically secure the building. After such discussion, Mrs Malass specified the works that she submitted should be allowed to be undertaken to be as follows: "(a) Installation of a front door. (b) Completion of the flashings on the skylights to achieve waterproofing. (c) Installation of glass in the window and sliding door frames (being the frames that are already in situ) and seal the glass and frames to achieve waterproofing. (d) Installation of a temporary hoarding to make the entrance to the car parking garage secure. (e) Work equipment may be removed from the site." 1. Mrs Malass proposed a time period within which these works should be carried out as being on or before 30 January 2021. 2. Mrs Malass proposed similar conditions on which the partial stay should be issued to those proposed in the previously amended notice of motion, including that she should lodge the development application and building information certificate application by 14 December 2020 (rather than 7 December 2020), actively pursue these applications and promptly appeal to the Court against any refusal of the applications. The previous conditions limiting work to being internal, related to internal finishes, fixtures and fittings and not of a structural nature were deleted as the works were now specified and limited in scope. The condition that the works be carried out in accordance with the conditions of the existing development consent remained. 3. Leave was granted to Mrs Malass to further amend the notice of motion to seek a stay to allow these works to be carried out and on the conditions stated in the further amended notice of motion. 4. The Council proposed that if a stay be granted it should be granted on different terms and different conditions. 5. Mrs Malass read two affidavits of her husband, Mr Malass, describing the course of events from the time of the grant of consent, through construction of the building and up to today, and the financial hardship that would be faced by the family if they are not able to complete the building in the near future. Mrs Malass also read an affidavit of her solicitor, Ms Zhao, which annexed plans comparing the approved building with the building that has been constructed. This comparison revealed substantial differences in the buildings. 6. The Council read an affidavit of Mr Wong also describing the course of events and comparing the approved building to the as-built building. This comparison also revealed substantial differences in the buildings. The case for and against the stay of the stop work order 1. Mrs Malass submitted that the Court has power to stay the operation of the development control order, being a stop work order, under either s 22 or s 23 of the Court Act: CVA Apartments Pty Ltd v Burwood Hotel [2020] NSWLEC 11. Mrs Malass referred to the summary of principles for granting a stay given by Pepper J in Snowy Monaro Regional Council v Cmunt (No 3) [2018] NSWLEC 175 at [17], also quoted in CVA Apartments at [44]. Mrs Malass accepted that these principles have different application where the development control order is of a prohibitory nature (such as a Stop Work Order) rather than of a mandatory nature (such as a Repair Order or Restore Works Order). Addressing these principles, Mrs Malass made six submissions as to why the Court should grant the stay as originally sought in the first amended notice of motion. 2. These submissions were modified after the notice of motion was further amended to limit the scope of works that should be allowed to be carried out to only being waterproofing and making physically secure the building. Mrs Malass submitted that these limited works are necessary to maintain the status quo - the building as it has been built - and prevent damage being caused to that building by trespassers being able to enter the building and by water incursion. These works are minimal in scope and will cause no adverse effect on the amenity of the neighbours or the neighbourhood. 3. Mrs Malass submitted that the stay proposed in the further amended notice of motion would be a partial stay of the stop work order only to allow the specified works to be carried out in the specified time period. No other works would be allowed to be carried out. As a consequence, the partial stay will not undermine the purpose and utility of the stop work order. 4. The Council opposed the originally sought stay of the stop work order and the conditional stay sought in the amended notice of motion. The Council changed its position in relation to the partial stay sought in the further amended notice of motion. The Council agreed that a partial stay, on conditions, could be granted but sought to limit the scope of works that should be allowed to be carried out and change the conditions on which the partial stay should be granted. The Council sought to disallow any permanent works, such as installation of the front door and glass in the windows and sliding doors, and instead only allow temporary materials to be used to secure or weatherproof these building openings. In particular, the Council submitted Mrs Malass should not be permitted to install a front door; instead of completion of the flashings on the skylights to achieve waterproofing, she should use temporary material such as plastic sheets or tarpaulins; instead of installation of glass in the windows and sliding door frames, she should use temporary materials such as plastic sheets or tarpaulins. 5. The Council submitted that to allow installation of the front door and glass in the windows and sliding doors would undermine the purpose and utility of the stop work order, which was intended to stop such work being carried out. 6. Concerning the conditions on which the partial stay should be granted, the Council contended that Mrs Malass should lodge her development application and building information certificate application by 7 December 2020 and not 14 December 2020 as sought by Mrs Malass. The Council submitted that Mrs Malass had had ample opportunity to prepare these applications and should be in a position to lodge them by 7 December 2020. This was the date that had been given by her solicitors in their letter of 20 October 2020. 7. The Council also sought to delete the condition that Mrs Malass appeal to the Court if the Council were to refuse her development application or building information certificate application. 8. The Council initially sought to add two other conditions, one allowing Council officers to inspect the site, to determine whether Mrs Malass was complying with the terms of the partial stay, and the other giving the parties liberty to apply to the Court. However, these further conditions were not pressed as the Council already had a statutory power under s 9.16(1) of the EPA Act to enter the premises and both parties have liberty to restore the matter without any leave of the Court needing to be given. 9. The Council sought an order for costs of the notice of motion. A partial stay should be granted 1. I consider that a partial stay of the stop work order, on conditions, as sought in the further amended notice of motion, is appropriate. The stop work order imposed a blanket ban on any work being carried out on the site from the date of the order. On the date that the order was given and took effect, the building was around 75% completed, but the building had not yet reached lockup stage. Some doors and windows still needed to be installed or have glass installed and waterproofing of the skylights that had already been installed had not yet been completed. The building was therefore not physically secured or waterproofed. 2. I consider that works to physically secure and waterproof the building should be allowed to be carried out in order to avoid future damage to the building by trespassers or weather. The works proposed are of limited scope. Allowing such limited works does not undermine the purpose or utility of the stop work order. The stop work order continues to apply to prevent all other building work being carried out. 3. I do not accept the Council's argument that the limited works to be undertaken should use temporary rather than permanent materials. No good purpose is achieved by requiring the limited works of physically securing and weatherproofing the front door, windows and sliding doors, and skylights to be undertaken using temporary materials, such as tarpaulins and plastic sheets, rather than a front door, glass in the windows and sliding doors, and completed flashings on the skylights. 4. As to the conditions on which the partial stay should be granted, there is no material advantage in requiring Mrs Malass to lodge the development application and building information certificate application by 7 December (the Council's position) rather than 14 December (Mrs Malass' position). Either way, it is soon, just over one week away for the first or two weeks away for the second. 5. What is more important than pressing Mrs Malass to rush lodgment of the applications is to ensure that the applications that are lodged are well considered, well documented and complete, so that the Council, as the consent authority, has all relevant information in order to consider and determine the applications. 6. It is also not advantageous to the Council to delete the condition suggested by Mrs Malass that she be required to appeal promptly against any refusal of the applications by the Council. To the contrary, this requirement is consistent with the earlier conditions requiring Mrs Malass to lodge the applications by an early date and to actively pursue those applications. 7. In summary, I consider that the Court should stay the operation of the stop work order only to the extent as to allow the limited works sought in the further amended notice of motion to be carried by at the latest 30 January 2021. The partial stay should be on conditions that Mrs Malass lodge the development application and building information certificate application by 14 December, actively pursue those applications, and promptly appeal against any actual or deemed refusal of both applications, as well as carrying out the limited works in accordance with any conditions of the development consent that directly prescribe the manner in which work must be carried out. Costs of the motion 1. That leaves the question of the costs of the motion. The Council seeks its costs on the basis that the partial stay that will be granted by the Court is not the result sought by Mrs Malass in her original notice of motion filed on 29 October 2020. That notice of motion was amended twice, once at the commencement of the hearing with notice only being given to the Council around 7.30pm last night, and again around lunchtime today in order to limit considerably the scope of works sought to be allowed. The Council submits that if notice of the latest further amended notice of motion had been given much earlier, the hearing today may not have been required or would have been more circumscribed, either way saving the Council cost. 2. Mrs Malass submits that no order for costs should be made. First, the usual rule for proceedings in Class 1, in which class of jurisdiction this appeal falls, is that there is no order as to costs unless the Court considers it is fair and reasonable in the circumstances to make an order for costs: see r 3.7(2) of the Land and Environment Court Rules 2007. Mrs Malass submits that none of the circumstances in r 3.7(3) apply. Furthermore, Mrs Malass submits that she was still successful in obtaining a stay of the stop work order, albeit on different terms to those sought in the original notice of motion. She always had to apply for a stay of the stop work order, regardless of the terms on which the Court might grant the stay. She was successful in obtaining a stay of the stop work order. The Council continued to oppose the Court granting a stay on the terms sought by Mrs Malass, both the original terms sought in the notice of motion filed on 29 October and the amended terms sought in the further amended notice of motion to which the Court granted leave today. Only the grounds on which the Council opposed the grant of the stay changed. 3. I consider that no order as to costs of the notice of motion should be made. I accept Mrs Malass' submission. I do not consider that a case has been made out that it is fair and reasonable to order costs in the present circumstances. Mrs Malass has been successful in obtaining a stay to allow some works to be carried out. True, the scope of works allowed to be carried out is significantly less than what Mrs Malass originally sought and the conditions on which the stay will be granted are more onerous than what was originally sought, but nevertheless a partial stay will be granted. It would not be fair and reasonable to order Mrs Malass, who will be at least partially successful, to pay the Council's costs in these circumstances. Orders 1. The Court orders: 1. The operation of the order given by Respondent to the Applicant on 14 September 2020 under s 9.34 and schedule 5 of the Environmental Planning and Assessment Act 1979 is partially stayed, such that the following work may be carried out on or before 30 January 2021: 1. Installation of a front door. 2. Completion of the flashings on the skylights to achieve waterproofing. 3. Installation of glass in the window and sliding door frames (being the frames that are already in situ) and seal the glass and frames to achieve waterproofing. 4. Installation of a temporary hoarding to make the entrance to the car parking garage secure. 5. Work equipment may be removed from the site. 1. The partial stay in order 1 is granted subject to the following conditions: 1. The Applicant is, on or before 14 December 2020, to make: 1. the development application; and 2. building information certificate application described in the letter from Mills Oakley to Planning Lab, dated 20 October 2020 (tab 16, folios 111-113, Exhibit 'RM-1' to the Affidavit of Rabi Malass 29 October 2020). 1. The Applicant is to actively pursue those applications. 2. Upon the Council refusing or being deemed to have refused both applications, the Applicant must take prompt steps to: 1. appeal each of them to this Court; and 2. file and serve a notice of motion for the consolidation of those appeal proceedings with these proceedings. 1. No other works may be carried out. 2. All work must be carried out in accordance with any conditions of development consent of DA2017/091 that directly prescribe the manner in which work must be carried out. ********** Amendments 03 December 2020 - Correction to case cited. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 03 December 2020