Land and Environment Court New South Wales Medium Neutral Citation: Clemesha v Mosman Municipal Council [2021] NSWLEC 1002 Hearing dates: 24–25 November 2020, 9 December 2020 Date of orders: 5 January 2021 Decision date: 05 January 2021 Jurisdiction: Class 1 Before: Dickson C Decision: Proceedings 2019/396674 Refer to orders below at [37] Proceedings 2020/303996 Refer to orders below at [38] Catchwords: DEVELOPMENT CONTROL ORDER – requires demolition of retaining wall, shed, external timber stairs – amended plans – whether there is an unreasonable impact on stormwater flow – agreed amended Development Control Order proposed BUILDING INFORMATION CERTIFICATE – additional information required now provided – amended scope – orders Legislation Cited: Crown Land Management Act 2016 Crown Lands Act 1989 Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Local Government Act 1993 Mosman Local Environmental Plan 2012 State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 Cases Cited: Owners of Strata Plan 60693 v Anneliese Pty Ltd [2006] NSWSC 210 Phillips v Walsh (1990) 20 NSWLR 206 Category: Principal judgment Parties: Robert Cambridge Clemesha (First Applicant) Juliana Carmel Clemesha (Second Applicant) Mosman Municipal Council (Respondent) Representation: Counsel: A Pearman (Applicants) J Hewitt (Solicitor) (Respondent) Solicitors: Joseph Grassi and Associates (Applicants) HWL Ebsworth (Respondent) File Number(s): 2020/303996 and 2019/396674 Publication restriction: No Judgment 1. COMMISSIONER: On 25 November 2019, Mosman Municipal Council (the Council) issued a development control order (the Order) that requires the Applicants to demolish certain works on their land at 71 Parriwi Road, Mosman and part of the adjoining Parriwi Park (Reserve). The Applicants appeal the order pursuant to s 8.18 of the Environmental Planning and Assessment Act 1979 (the EPA Act). 2. The order was issued by the Council pursuant to Division 9.3 of the EPA Act and Part 1 of Schedule 5 to the Act. Section 9.34(1)(a) allows a development control order to be given as a general order in accordance with the table to Part 1 of Schedule 5. Item 3 of Part 1 of Schedule 5 allows a Demolish Works Order, one type of development control order, to be issued to demolish or remove a building if the building "requiring a planning approval is erected without approval". It is not disputed by the Applicants that the works required planning approval, and that they were erected without approval. 3. The order requires the Applicant's to demolish the following works: "1. The unlawful concrete retaining wall located at the lower level of 71 Parriwi Road, Mosman (on the eastern side of the dwelling); 2. The unlawful garden shed located at 71 Parriwi Road, Mosman, adjoining the dividing fence of 69 Parriwi Road, Mosman. 3. The unlawful external timber stairs constructed in the eastern elevation of the dwelling at 71 Parriwi Road, Mosman, (which are subject to a Notice of Intent for demolition dated 10 January 2012). 4. The unlawful external timber stairs recently built over public land known as Lot 1010 DP 1231980 which adjoins the property of 71 Parriwi Road, Mosman." (Exhibit 4) 1. Since the commencement of the proceedings the garden shed, referenced in the order at (2), has been demolished. This component of the order is satisfied. 2. The parties are agreed that the external stairs, referenced in the order at (3), are able to be retained subject to treatment with a fire retardant and increasing the separation between the base of the stairs and the and the bushfire hazard on the adjoining Reserve to address the bushfire risk. These recommendations are detailed in the Applicants second Bushfire Statement (Exhibit D). 3. The parties are further agreed that the section of the external timber stairs located in the Reserve, referenced in the order at (4), are to be demolished. 4. Concurrent with the Applicants appeal against the order, they also appeal, pursuant to s 8.25 of the EPA Act, the Respondent's request for information issued under Division 6.7 of the EPA Act. This second proceeding relates to the Applicants request for the Respondent to issue a Building Information Certificate (BIC) for part of the works covered by the Order. 5. By order of the Court on 3 November 2020, the proceedings were heard concurrently. 6. At the commencement of the hearing the parties agreed that the principal issue remaining in dispute was the retaining wall and its impact on sub surface water flows, as framed by the Council's contentions 2, 6 and 7. During the first day of the hearing the stormwater engineering experts undertook further joint conferencing and produced a final joint report. 7. Following filling of the final stormwater engineering joint report, the parties embraced Option 1 as the agreed means of resolving the outstanding matters in dispute between them. Option 1 is described in the joint expert report as capturing surface flows by the installation of a new subsoil drain and discharging these flows in the Reserve (Exhibit 8). By consent the matter was adjourned for the Applicants to prepare a stormwater design for those works. As a result of the provision of additional information and the production of the stormwater design the parties have agreed orders which they wish the Court to make to finalise the proceedings. The role of the Court on appeal The Order 1. In hearing the appeal, the Court re-exercises the functions of the Council in determining whether the order should be issued. Section 39 of the Land and Environment Court Act 1979 (the Court Act) provides as follows: 39 Powers of Court on appeals ... (2) In addition to any other functions and discretions that the Court has apart from this subsection, the Court shall, for the purposes of hearing and disposing of an appeal, have all the functions and discretions which the person or body whose decision is the subject of the appeal had in respect of the matter the subject of the appeal. (3) An appeal in respect of such a decision shall be by way of rehearing, and fresh evidence or evidence in addition to, or in substitution for, the evidence given on the making of the decision may be given on the appeal... 1. In addition, s 8.18(4) of the EPA Act sets out the powers of the Court on an appeal against an order. Those powers are as follows: (4) On hearing an appeal, the Court may: (a) revoke the development control order, or (b) modify the development control order, or (c) substitute for the development control order any other order that the relevant enforcement authority who gave the order could have given, or (d) find that the development control order is sufficiently complied with, or (e) make such order with respect to compliance with the development control order as the Court thinks fit, or (f) make such other order with respect to the development control order as the Court thinks fit. 1. Clause 29, Schedule 5 of the EPA Act provides who carries out work in compliance with a requirement of a development control order does not have to make an application under the EPA Act for consent or approval to carry out the work. Consequently, development consent is not required for the implementation of the proposed modified development control order. The Building Information Certificate 1. The appeal in respect of the BIC is made under s 8.25 of the EPA Act within time. 2. Pursuant to s 8.25(3) of the EPA Act, on hearing an appeal, the Court may do one or more of the following: (3) On hearing the appeal, the Court may do any one or more of the following: (a) direct the council to issue a building information certificate in such terms and on such conditions as the Court thinks fit, (b) revoke, alter or confirm a notice to supply information, (c) make any other order that it considers appropriate. Planning Approval was required 1. The Council contends that the concrete retaining wall, the garden shed, the stairways within the property and the stairways on the adjoining Reserve required development consent which was not granted. As such they conclude the structures are unlawful. The reasoning of the Respondent is summarised in the following. 2. The retaining wall does not satisfy the exempt requirements at cll 2.29 and 2.30 of State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 (Codes SEPP) and required development consent under the Mosman Local Environmental Plan 2012 (LEP 2012). Further, the Respondent argues that a structural design certificate is required from a qualified structural engineer demonstrating that the retaining wall is structurally adequate as required by cl 1.16(1)(a) of the Codes SEPP. 3. The garden shed does not satisfy the development standards in cl 2.18 of the Codes SEPP and require development consent under LEP 2012. 4. The stairway located on 71 Parriwi Road, Mosman does not comply with the requirements of cll 2.74A and 2.74B of the Codes SEPP and require development consent under LEP 2012. Further, the Respondent argues that there is a lack of information to demonstrate that the stairway does not interfere with the existing drainage or natural surface flow of water: cl 2.74B(e) of the Codes SEPP. Finally, the stairway is located on land that is nominated as bushfire prone land. No information has been provided demonstrating that the stairway has been constructed of non-combustible material: cl 2.74B(e) of the Codes SEPP. 5. The stairway located on the Reserve is unlawful as it was constructed without the consent of the landowner, New South Wales Crown Land. 6. Ms Pearman, for the Applicants accepts that the structures enumerated in the Order were constructed without consent. The Amended Order 1. I am satisfied that the circumstances for the issue of the order existed at the time it was issued by the Council. Further, I am satisfied that the circumstances for the issue of the agreed modified development control order exist. Specifically, the works the focus of the amended order were erected without approval and the order is to be served on the owners of the land. 2. The proposed modified development control order proposes to drain overland flow water from 71 Parriwi Road to the adjoining Reserve which is Crown land. 3. Pursuant to s 92(1) of the former Crown Lands Act 1989 (CL Act 1989) and by notification in the Government Gazette on 1 March 2011, a reserve trust was established known as the Mosman Foreshore Reserve Lands Trust for Reserve No 41681 which included Parriwi Park, and reserved for "Public recreation". 4. Pursuant to s 95(1) of the CL Act 1989, Council was also appointed as manager of the Reserve in the same Government Gazette. 5. The Council prepared and adopted The Spit Reserves Plan of Management (POM) under ss 112 and 114 of the CL Act 1989 which applies to the Reserve. 6. The CL Act 1989 was repealed on 1 July 2018 pursuant to Schedule 8 of the Crown Land Management Act 2016 (CLM Act). The CLM Act provided a revised management structure for Crown reserves. 7. By virtue of cl 10(A) of Schedule 7, Savings, transitional and other provisions of the CLM Act, Council is taken to be the Crown Land manager of the Reserve under the CLM Act. 8. Pursuant to s 3.22(1) of the CLM Act Council must manage the Reserve as if it were Community land under the Local Government Act 1993 (LG Act) and has for that purpose all the functions that a local council has under the LG Act in relation to the management of community land. 9. The POM of the Reserve continues to apply until a new plan of management is made under the CLM Act and in accordance with the LG Act: cl 37A(3)(a) of Schedule 5 of the CLM Act. The Council has not yet made a new plan of management under the CLM Act and LG Act. 10. As the Reserve is to be managed as Community land under the LG Act s 46(1) will apply which provides: (1) A lease, licence or other estate in respect of community land— …. (a1) may be granted for the purpose of providing pipes, conduits or other connections under the surface of the ground for the connection of premises adjoining the community land to a facility of the council or other public utility provider, or … 1. I am is satisfied the drainage works are incidental or ancillary to the Reserves' reservation as "public recreation". The drainage works will not interfere with the enjoyment and use of the Reserve and is therefore consistent with: 1. the Objectives of the POM in section 1.4 as a result of the POM identifying drainage works as being future uses and development permitted within the Reserve; 2. consistent with the principles of crown land management in s 1.4 of the CLM Act; 3. consistent with the values of the Reserve in Table 4.1 of the POM as the drainage works; 4. consistent with the community values and objectives of the Reserve (E2 Environmental Conservation) in Table 4.4 and Table 4.5 of the POM; 5. consistent with the objectives of the E2 Environmental conservation zone under the LEP 2012. 1. I am satisfied it is appropriate to make the orders for the modified development control order pursuant to s 8.18(4)(b) in the manner agreed by the parties. The issue of the BIC is appropriate 1. The issue of BIC's is regulated by Division 6.7 of the EPA Act. The requirements of this Division are satisfied as follows: * The application for the BIC is made by the owner of the land on which the building is erected: s 6.22(a) of the EPA Act. I note 'building' is defined to include a structure. * The application for the BIC was correctly made to Mosman Council. * As a result of the expert evidence, the modifications required by the amended development control order and the agreement of the parties the circumstances at s 6.25(1) (a) of the EPA Act no longer exist. 1. I am satisfied that it is appropriate to make the orders agreed by the Parties and to direct the Council to issue a BIC as detailed in order (2) at paragraph [38]. Conclusion 1. I also consider that the grant of liberty to apply is appropriate in circumstances where compliance with the orders could be delayed for a range of reasons out of the control of either party. As outlined by McLelland J in Phillips v Walsh (1990) 20 NSWLR 206 at 210, "In a final order, liberty to apply is often expressly reserved as authority to make a subsequent application for the purpose of dealing with a matter involved in or arising in the course of working out the order." The exercise of liberty to apply requires notice to be given to the other party, usually in the form of a Notice of Motion (see, for example, Owners of Strata Plan 60693 v Anneliese Pty Ltd [2006] NSWSC 210 at [8]-[10]). Proceedings 2019/396674 1. The Court orders that: 1. The appeal is upheld. 2. The development control order issued by the Respondent to the Applicant dated 25 November 2019, is pursuant to s 8.18(4)(b) of the Environmental Planning and Assessment Act 1979, modified in accordance with the development control order at Annexure A. 3. The works specified in the modified development control order must be completed with the times specified in the modified development control order or such other period as may be agreed to in writing by Mosman Council's Director of Environment and Planning. 4. The Court grants liberty by Notice of Motion to the Applicants to apply to the Court to extend the time referred to in order (3) in the event that, despite their best endeavours they are not reasonably able to complete those works within the time referred to in order (3). 5. The exhibits are returned with the exception of Exhibits D, E and 2. Proceedings 2020/303996 1. By consent, the Court orders that: 1. The appeal is upheld. 2. The Applicants are to: 1. The Applicants are directed to demolish and remove the external timber stairs constructed in the eastern elevation of the dwelling at 71 Parriwi Road, Mosman which encroach on Lot 101 in Deposited Plan 1231980 and known as Parriwi Park within 90 days from the date of this Order, as modified, and erect a balustrade on the lower landing of the external timber stairs constructed in the eastern elevation of the dwelling at 71 Parriwi Road, Mosman within 90 days from the date of this Order as shown marked in red on the plan annexed and marked with the letter "A". Evidence of compliance must be submitted to Mosman Municipal Council's Director of Environment and Planning no later than 7 days after the works have been carried out. 1. The Applicants are directed to carry out the works described in Item 6 of the Bushfire Report prepared by Bushfire Planning Services Pty Limited annexed and marked with the letter "B" on the external timber stairs constructed in the eastern elevation of the dwelling at 71 Parriwi Road, Mosman within 90 days from the date of this Order, as modified, and submit to Mosman Municipal Council's Director of Environment and Planning evidence of compliance from a suitably qualified Bushfire Planning and Design accredited practitioner no later than 7 days after the works have been carried out. 2. In relation to the concrete retaining wall located at the lower level of 71 Parriwi Road, Mosman (on the eastern side the dwelling): 1. carry out the stormwater drainage works shown in the plan MPAR71-CC dated November 2020 prepared by John Lawrence and annexed and marked "C" within 90 days of the date of this order and provide certification from a qualified engineer that the works have been carried out in accordance with the approved plans. The stormwater drainage works are to be maintained on a regular basis, but no less than annually; 2. the mature trees planted behind the retaining wall are to be retained where possible. To facilitate the retention of the existing mature trees an AQF Level 5 arborist must supervise all excavation works during the construction of the drainage works referred to in this Order 2.(c)(i). Any reasonable recommendations or instructions made by the arborist for the retention of the mature trees must be followed; and 3. if, during the construction of drainage works, any mature trees are removed the Applicants are to undertake replacement planting of immature like or similar species. 1. Within 14 days of completing the works, the Applicants are to notify the Council in writing that they have completed the works referred to in order (2). 2. Upon the Council providing notice to the Applicant in writing as to its satisfaction that the Applicants have complied with Order (2) above, the Council is directed, within 14 days, to issue a building information certificate for the external timber stairs constructed in the eastern elevation of the dwelling at 71 Parriwi Road, Mosman and the concrete retaining wall located at the lower level of 71 Parriwi Road, Mosman (on the eastern side the dwelling). 3. In the event that the Council has not issued a building information certificate within 14 days of the Applicants' providing notice as referred to order (3), the Applicants have liberty to apply to the Court by way of Notice of Motion to restore this matter to the list. 1. The exhibits are returned with the exception of Exhibits D, E and 2. ………………………… D M Dickson Commissioner of the Court Proceedings 2019/396674 Annexure A (106300, pdf) A (198037, pdf) B (1539102, pdf) C (931979, pdf) Proceedings 2020/303996 A (444667, pdf) B (1558280, pdf) C (932586, pdf) ********** 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: 08 January 2021