Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Khouri v Commissioner for Fair Trading [2023] NSWCATOD 135 Hearing dates: 20 April 2023 Date of orders: 07 September 2023 Decision date: 07 September 2023 Jurisdiction: Occupational Division Before: K Mobbs, Senior Member Decision: The decision under review is affirmed. Catchwords: ADMINISTRATIVE LAW - Owner Builder Permit – s 32(1A) Home Building Act - special circumstances - dual occupancy. Legislation Cited: Administrative Decisions Review Act 1997 (NSW) Home Building Act 1989 (NSW) Standard Instrument (Local Environmental Plans) Order 2006 Fairfield Local Environmental Plan 2013 Cases Cited: Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175 Hammoudi v Commissioner for Fair Trading [2016] NSWCATOD 57 McDonald v Director-General of Social Security (1984) 1 FCR 354 at 357 McGufficke v Commissioner for Fair Trading [2022] NSWCATOD 84 Nakad v Commissioner of Police, New South Wales Police Force [2014] NSWCATAP 10 Oslear v Commissioner for Fair Trading [2022] NSWCATOD 110 Shi v Migration Agents Registration Authority [2008] HCA 31. Texts Cited: None cited Category: Principal judgment Parties: Joanna Khouri (Applicant) Commissioner for Fair Trading (Respondent) Representation: Applicant (Self-represented) Department of Customer Service (Respondent) File Number(s): 2022/00355719 Publication restriction: Nil REASONS FOR DECISION Background 1. On 26 September 2022, application was made by Ms Joanna Khouri (the Applicant) to the Commissioner for Fair Trading (the Respondent) for an owner-builder permit with respect to her Fairfield East property (Property). The description of the building work in the Application Form for the owner-builder permit (the Application) was the "[p]artial demolition and retention of existing dwelling, construction of a single storey dwelling within the rear to create a detached dual occupancy development." The market value of the work was stated to be $320,000. The Applicant claimed special circumstances in relation to the application for an owner-builder permit. 2. On 10 October 2022, the Applicant was advised that her application had been refused under s 32(1A) of the Home Building Act 1989 (the HBA) as the delegate was not satisfied that the information provided demonstrated that special circumstances existed that justified that an owner-builder permit was required to construct the dual occupancy. 3. The Applicant sought an internal review of that decision on 16 October 2022 and provided a letter dated 15 October 2022. On 3 November 2022, following an internal review, the original decision to refuse the issue of an owner-builder permit to the Applicant was affirmed. The Applicant subsequently applied to the Tribunal for review. Relevant legislation 1. Amongst other things, the HBA establishes and regulates a statutory scheme in relation to the residential building industry and certain specialist work. Unlicenced contracting is prohibited: s4. Division 3 of Part 3 of the HBA provides for owner-builder permits which in particular circumstances, authorise unlicenced persons to do specified home building work. 2. Section 29 of the HBA relevantly defines "owner-builder work" to mean residential building work – (a) the reasonable market cost of the labour and materials involved in which exceeds the prescribed amount, and (b) that relates to a single dwelling-house, dual occupancy or secondary dwelling— (i) that may not be carried out on the land concerned except with development consent under Part 4 of the Environmental Planning and Assessment Act 1979, or (ii) that is complying development within the meaning of that Act. … (3) In this Division, a reference to an owner of land includes a reference to a person who has a prescribed interest in the land. 1. Clause 2 of Schedule 1 to the HBA relevantly provides: (1) In this Act, residential building work means any work involved in, or involved in co-ordinating or supervising any work involved in— (a) the construction of a dwelling, or (b) the making of alterations or additions to a dwelling, or (c) the repairing, renovation, decoration or protective treatment of a dwelling. 1. Section 30(1) of the HBA grants the Secretary discretion to grant owner-builder permits for the purposes of the HBA. Schedule 1 of the HBA defines "Secretary" to mean the Respondent. 2. Section 31 of the HBA provides for the issue of owner-builder permits and s 31(2)(c) requires that the single dwelling-house or one of the dwellings comprising the dual occupancy concerned will be occupied as the residence (being, in the case of a dual occupancy, the principal residence) of the applicant after the work authorised by the permit is done. 3. Section 32 sets out the authority conferred by owner-builder permits as follows: 32 Authority conferred by owner-builder permits (1) An owner-builder permit authorises its holder to do such residential building work as is described in the permit on the land specified in the permit. (1A) An owner-builder permit must not be issued to authorise its holder to do residential building work that relates to a dual occupancy unless the Secretary is satisfied that special circumstances exist that justify the owner-builder permit authorising its holder to do that work. The Secretary may issue guidelines as to the circumstances that will be considered to be special circumstances for the purposes of this subsection. (2) The authority conferred by an owner-builder permit— (a) is subject to the conditions applicable to the permit for the time being, and (b) may, on the application of the holder of the permit, be varied by an order of the Secretary set out in a notice served on the holder of the permit. 1. Section 32AA provides that the holder of an owner-builder permit must not contract with another person for that person to do any residential building work (or any part of the work) unless the person is the holder of a contractor licence to do work of that kind. 2. The Standard Instrument (Local Environmental Plans) Order 2006 (the Standard Instrument) contains the following relevant definitions: dual occupancy means a dual occupancy (attached) or a dual occupancy (detached). dual occupancy (attached) means 2 dwellings on one lot of land that are attached to each other, but does not include a secondary dwelling. dual occupancy (detached) means 2 detached dwellings on one lot of land, but does not include a secondary dwelling. dwelling means a room or suite of rooms occupied or used or so constructed or adapted as to be capable of being occupied or used as a separate domicile. Tribunal proceedings 1. On 30 November 2022, the Tribunal received a Notice of Representation that Mr John Ayoub of Unique Accountants sought to act as agent for the Applicant. Mr Ayoub appeared by telephone as agent at the directions hearing on 20 December 2022 at which time the matter was set down for an in-person hearing on 6 April 2023. 2. On 6 April 2023, the matter came before Senior Member Mulvey and written orders were made by him. The Notes on the orders record that the Respondent had requested that the Applicant be available for cross-examination. Due to an emergency admission of the Applicant's adult daughter to hospital, the Applicant failed to appear in-person. Mr Ayoub, the Applicant's agent, said the Applicant could appear by facetime or telephone. Given the nature of the Applicant's reason for not attending, Senior Member Mulvey refused her appearance by telephone as she was at the emergency department of the hospital. No prior application was made for the Applicant to appear by telephone. The Respondent said cross-examination by telephone would place the Respondent at a disadvantage and this was accepted. Senior Mulvey granted the application for the hearing to be adjourned. 3. Senior Member Mulvey refused an application made by Mr Ayoub for the Applicant to appear at the adjourned hearing by telephone or audio visual link (AVL). The reason provided by the Applicant through Mr Ayoub was that she had to care for her adult children, make them meals and tidy the house. Senior Member Mulvey was not persuaded that this was a sufficient reason to appear before the Tribunal by AVL or telephone. Senior Member Mulvey listed the matter for an in-person hearing on 20 April 2023. 4. At the hearing before me on 20 April 2023, the Applicant and Mr Ayoub both attended in-person, as did Ms Robosa, the solicitor for the Respondent. The Applicant confirmed that she was appearing on her own behalf at the hearing and that Mr Ayoub was not acting as her agent. The evidence 1. The Respondent did not call any oral evidence and relied on the s 58 documents (exhibit R1). The Applicant relied on her affidavit dated 14 March 2023 (exhibit A1) and the affidavit of Mr Ayoub dated 14 February 2023 (exhibit A2). Whist Ms Robosa initially objected to both documents, she indicated that she would instead make submissions and accordingly, both affidavits were admitted into evidence. Mr Ayoub left the hearing room whilst the Applicant gave her evidence, and both the Applicant and Mr Ayoub were cross-examined by Ms Robosa. Submissions 1. The Respondent relied upon written submissions filed on 28 February 2023. As at that date, the only evidence filed on behalf of the Applicant was the affidavit of Mr Ayoub dated 14 February 2023. The Respondent submitted that the Tribunal should affirm the internal review decision to refuse the owner-builder permit on the following grounds: 1. That there are no special circumstances which would warrant the issue of the owner-builder permit and that the Applicant had not put on any objective evidence, aside from Mr Ayoub's assertions, necessary for the Tribunal to properly consider whether special circumstances exist. 2. The available evidence before the Tribunal points to Mr Ayoub as essentially the applicant for the owner-builder permit for the Property, however he is an ineligible applicant as there is no evidence that he has a prescribed interest in the Property. 1. The Respondent's Submissions also referred to the copy of the Notice of Deferred Commencement Consent Becoming Operative attached to the Application as being incomplete. 2. By way of letter filed on 27 March 2023, Mr Ayoub indicated that his affidavit and that of the Applicant were relied upon as the Applicant's submissions in the matter. In his affidavit, Mr Ayoub asked the Tribunal to set aside the Respondent's decision and grant the Applicant an owner-builder permit. The affidavits of both Mr Ayoub and that of the Applicant referred to the Applicant's special circumstances that are relied upon in support of the Application. The Applicant's affidavit was filed on 27 March 2023. In the affidavit, the Applicant specifically states that the purpose of the affidavit is to "clarify points made in the Respondents (sic) Submissions dated 28 February 2023". 3. At the hearing, Ms Robosa relied upon the Respondent's written submissions and made brief oral submissions. In addition to the submissions that the Applicant had not adduced any objective evidence or established special circumstances, Ms Robosa also submitted that the evidence given by the Applicant and Mr Ayoub raised issues as to whether the Applicant had complied with the requirements to obtain an owner-builder permit. Ms Robosa referred to inconsistencies in the evidence, including differing versions from the Applicant and Mr Ayoub as to where the Applicant had completed the course to obtain her Statement of Attainment. Ms Robosa also referred to concerns about the Applicant's health and her ability to carry out her responsibilities as the holder of an owner-builder permit. 4. The Applicant made brief oral submissions. In relation to her health issues, she stated that she was more than capable of speaking to people about the building work and that she was not incapacitated. She submitted that the approved plans relating to the new dwelling had been provided to Fair Trading and they had had them for three weeks before she picked them up. She submitted that there had been some breakdown within Fair Trading and that she should not be blamed. She submitted that she was able to do the tasks required of an owner-builder and that the Respondent was denying her the permit when the purpose was to help people with special circumstances such as her. 5. In the course of oral submissions, reference was made by Ms Robosa to the lack of objective evidence brought by the Applicant in the proceedings, including the lack of any medical records relating to the Applicant's mother. The Applicant submitted that she could provide further evidence if that would assist. The Applicant was advised that there had already been an opportunity for her to file evidence with the Tribunal but that notwithstanding that, she could still make an application to file further evidence and the application would be considered. I indicated that I could not advise her what to do and that my final decision in the matter would be based on the evidence before the Tribunal. The Applicant said that she was feeling stressed and anxious and had not been sleeping well for the last few weeks and that she just wanted the process to be over with and a decision made. I clarified with the Applicant whether she wanted to make an application to file further evidence in the matter and she said "No." Late submissions 1. Correspondence was received from the Applicant after the hearing and while the proceedings were reserved, awaiting a decision. In the correspondence, the Applicant reiterated a number of the points from the hearing. These points essentially repeated a number of the submissions previously made by her. There was no leave granted for the submissions and there was nothing to suggest that they had been provided to the Respondent. The Applicant has not addressed the basis on which leave should be granted for the consideration of the further submissions (Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175 at [4]-[5]). As the submissions only repeat what was submitted previously, have not been sent to the Respondent and no reason has been provided as to why the Tribunal should grant leave for further submissions after the hearing has been concluded, I have not considered them. Role of the Tribunal 1. Section 83B(1) of the HBA confers jurisdiction on the Tribunal for administrative review of the Respondent's decision pursuant to s 9 of the Administrative Decisions Review Act 1997 (the ADR Act). Section 63 of the ADR Act provides that in determining an application for review, the tribunal is to make the correct and preferable decision having regard to the material then before it, and any applicable written or unwritten law. The tribunal makes its own decision in place of that of the Respondent and there is no presumption that the decision of the Respondent is correct: McDonald v Director-General of Social Security (1984) 1 FCR 354 at 357. In doing so it may exercise all of the functions conferred or imposed by any relevant enactment. There is no onus of proof: Nakad v Commissioner of Police, New South Wales Police Force [2014] NSWCATAP10 [28-30], [34]. In an application for review the tribunal is not restricted to consideration of the material that was before the decision maker, but may have regard to any relevant material before it at the time of the review: Shi v Migration Agents Registration Authority [2008] HCA 31. 2. For the purpose of this review the Tribunal stands in the shoes of the Respondent and has the same powers. The applicant for the owner-builder permit 1. As referred to above, the Respondent submitted that at the time the Respondent's Submissions were filed, the available evidence pointed to Mr Ayoub as essentially the applicant for the owner-builder permit. In his affidavit, Mr Ayoub states that he is the cousin of the Applicant and also her representative "as she is not in good enough health to represent herself in this matter". He then refers to the Applicant lodging a development application for the Property, obtaining a Certificate 1 in Construction and being granted development consent for the Property on 22 June 2022. He then states that on 26 September 2022, "I applied for an owner-builder permit through Service NSW on behalf of the Applicant who accompanied me to Service NSW registry in Wetherill Park". He continues on to state that at the time of application, "I also completed an "Additional Details Form" to provide special circumstances to obtain an owner builders permit for a dual occupancy". 2. The affidavit contains a number of references to the actions taken in relation to the owner- builder permit, the internal review and the application to this Tribunal in relation to which Mr Ayoub uses the words "I" and "we", including the following: On 16 October 2022, I provided a letter to NSW fair Trading seeking an internal review with further information surrounding the circumstances which we sought to obtain an owner builders permit. In the letter we mentioned the following: … On 3 November 2022, I received a decision on the internal review, and it was refused. The letter afforded me an opportunity to apply for a further review with the NSW Civil and Administrative Tribunal. 1. The email address provided in the Application was that of Mr Ayoub and from the evidence before the Tribunal, correspondence relating to the Application has been sent to and from this email address, including the request for the internal review on 16 October 2022. As referred to above, Mr Ayoub also appeared as agent for the Applicant in this matter prior to the hearing. 2. In cross-examination, Mr Ayoub was asked about the references to "I" in his affidavit. He said that he is a tax agent and that when a client comes to him, they give him consent to complete their tax return; he then completes the return, and the client signs it. Mr Ayoub said that he had assisted the Applicant throughout the process for the owner-builder permit but always with the Applicant's consent and with her signature and that she had been present when they attended Service NSW. He said that he assisted the Applicant with her affidavit and that "both of us prepared it". 3. In the Applicant's affidavit, she states that she is the Applicant in the matter and also the cousin of her representative, Mr Ayoub. She said that she has chosen to use Mr Ayoub as her representative as she is not in the greatest of health, and he has assisted, and is assisting, her in developing the project which is the subject of this matter. She later states that she enlisted the help of Mr Ayoub to assist her during the planning stage. She said that she chose him to assist her due to his "building knowledge, skills, network and contacts of people in the building industry." 4. The Applicant rejects the assertion that Mr Ayoub is the Applicant. She says that "I partially completed, reviewed and signed all the documents, and I am the Applicant. The fact that Mr Ayoub assisted in the process of the applications and appeals process does not make him the Applicant." In cross-examination she said that Mr Ayoub had helped her with her affidavit and that they did it together. She said that she knows that Mr Ayoub does not have a building licence or certificate issued in New South Wales but said that he had built his house before and that "he knows more about building" than she does. 5. It is clear that Mr Ayoub has had extensive involvement in the planning process relating to the Property, in the Application and in the subsequent proceedings and was clearly not acting as the Applicant's tax agent in doing so. I find that the word "I" in his affidavit, is used by him to identify the actions that he has taken to assist the Applicant in these processes, and this includes the preparation of various documents such as the Form 7 that formed part of the Application. 6. Whilst both the Applicant and Mr Ayoub referred to Mr Ayoub as the Applicant's representative due to her health, the Applicant chose to appear on her own behalf at the hearing of this matter. The Applicant gave oral evidence as to her health conditions but did not adduce any objective medical evidence in relation to them. The Applicant said in her evidence that she understood the obligations of an owner-builder and that there are no issues with her physical health. She stated that she planned to use "licenced people" to do the work and that if it means that she needs to go on site, she will do so. She said that she would not have applied for the permit if she was not able to do it. 7. It is clear that the Application is in the name of the Applicant, contains her personal details and is signed by her. I accept her evidence that the handwriting in the Application setting out the "Description of Building Work" is her writing and that she was present when the Application was lodged with Service NSW and on subsequent visits. Whilst the Applicant's evidence was that she "partially" completed all of the documents, she states that she reviewed and signed all of the documents. The evidence before the Tribunal establishes that the Applicant was aware of the Application and the material submitted in support of the Application and subsequent proceedings. There was no evidence before the Tribunal that Mr Ayoub has any ownership in the Property, and I accept the Applicant's evidence that he does not have an interest in it. 8. On this basis, I accept that the Applicant is the applicant for the owner-builder permit, the subject of this review. Special circumstances 1. On occasion throughout these proceedings, there was reference to the proposed new dwelling for which the owner-builder permit is sought as either a secondary dwelling or a second dwelling. In the Application, the new dwelling is referred to as a "detached dual occupancy". It was not in dispute that the new dwelling falls within the definition of a dual occupancy in the Standard Instrument and I find this to be the case. 2. It was also not in dispute that the Application is in relation to residential building work that relates to a dual occupancy. Accordingly, an owner-builder permit must not be issued to the Applicant unless the Tribunal is satisfied pursuant to s 32(1A) of the HBA that special circumstances exist that justify the owner-builder permit authorising the Applicant to do that work. If the Tribunal is not satisfied, the owner-builder permit must not be issued. Meaning of special circumstances 1. There are no guidelines issued as to the definition of special circumstances in the context of the HBA. The term "special circumstances" as it appears in s 32(1A) of the HBA has previously been considered by this Tribunal in the matters of Hammoudi v Commissioner for Fair Trading [2016] NSWCATOD 57 (Hammoudi), McGufficke v Commissioner for Fair Trading [2022] NSWCATOD 84 (McGufficke) and most recently in Oslear v Commissioner for Fair Trading [2022] NSWCATOD 110 (Oslear). 2. In Hammoudi, Senior Member Scahill said, at [64 – 67]: 64 There are no guidelines issued as to the definition of special circumstances in the HBA context. The Tribunal refers to a number of factors in interpreting the meaning of special circumstances: • An understanding of the term "special circumstances" generally; • the purposes of the Home Building Act 1989; • the purposes of an owner-builder permit in the context of the HBA; • the legislative purpose behind the amendment to the HBA in section 32(1A) against the issue of owner builder permits for dual occupancies; • the scope of special circumstances as set out in the Minister's Second Reading Speech in May 2014; and • the Applicant's claim for special circumstances in the context of the permit sought. Meaning of special circumstances 65 A scan of case law shows that the concept of 'special circumstances" is known in the areas of criminal law, professional disciplinary matters in relation to costs, applications for security of costs and in the social security arena concerning beneficial exercise of a discretion. 66 In Topp's case, the AAT considered the meaning of the term "special circumstances" in relation to its use in section 1184K of the Social Security Act. Section 1184 allowed for the Secretary of the Department of Social Security to exercise a beneficial discretion "if it is appropriate to do so in the special circumstances of the case." Relying on a Full Federal Court decision in Beadle v Director General of Social Security [1984] AATA 176, the AAT considered that if something unfair, unintended or unjust had occurred which was out of the ordinary, (this Tribunal's bolding) this might constitute special circumstances justifying the exercise of the discretion – see Topp and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2010] AATA 99 paragraphs 21 and 38-40. 67 The AAT's analysis in Topp's case also indicates that the determination of the existence of "special circumstances" vested a broad discretion in the decision maker.' 1. In the Second Reading Speech in May 2014, the Minister stated: The amendment also addresses home builders. The Act currently allows home owners to do building work on their home by obtaining an owner-builder permit from Fair Trading. The owner-builder provisions are being reformed to help ensure that the permit system is not being used inappropriately for commercial reasons as a means of circumventing the licensing requirements. These reforms will also help manage health and safety risks associated with owner-builder work. Currently owner-builders are only permitted to undertake work relating to a single dwelling or a dual occupancy. There are concerns that some commercially orientated, unlicensed people may be using the permit system in order to undertake dual occupancy work on land with a view to subdividing the land and on-selling it at a profit. The owner-builder permit system is not intended for such commercial development work. Owner-builders will not be able to obtain a permit for work on a dual occupancy unless the commissioner is satisfied that special circumstances exist, such as where a family could demonstrate legitimate non-commercial reasons for the work or where refusing the permit could cause family hardship. 1. In relation to the Second Reading Speech, Senior Member Scahill said in Hammoudi at [71] that the "Tribunal understands this to mean that the amendment is aimed at avoiding the use of owner-builder permits to create a dual occupancy for commercial purposes such as immediate on selling or subdivision for financial advantage." 2. In McGufficke, Senior Member Mulvey said at [48] that the "overall purpose of the HBA is to protect consumers in the contracting for and the construction of residential dwellings." He later refers to extracts from the Second Reading Speech and at [51] said: I understand this to mean that the amendment is aimed at avoiding the use of owner-builder permits to create a dual occupancy for commercial purposes such as immediate on selling or subdivision for financial advantage. It could also include renting part or whole of the developed property for financial gain. 1. The Tribunal held that the Applicant in McGufficke had failed to establish "special circumstances" and affirmed the decision to refuse the application for an owner-builder permit. The Tribunal stated at [53]: … Unlike the matters the Tribunal considered in Hammoudi, the Applicant has failed to show through objective evidence that his real intent was to purchase and redevelop the property for retirement. I am not suggesting that the Applicant is in any way fabricating his evidence, but he must by way of objective evidence be able to satisfy me that special circumstances exist. He has failed to provide any financial information about the project, whether he would sell or rent his current home and how he intends to finance the new construction and if the OBP is not issued whether he would suffer financial hardship. No evidence was adduced from the Applicant's wife about their retirement plan. The Applicant did not provide a timeline as to when he would retire. In the absence of this type of evidence, a finding of special circumstances is far too remote. 1. The Tribunal held at [55] that "it is incumbent upon the Applicant to demonstrate that there are special circumstances to be successful in his application". 2. In Oslear, Senior Member Molony stated at [35]: In my opinion the question of whether special circumstance exist under s 32(1A) which allow the Commissioner to issue an owner builder permit, in a dual occupancy situation, is not confined or defined by the wording of the Minister's second reading speech. Rather, I agree that the series of factors referred to by the Tribunal in Hammoudi at [64] and McGufficke, including the mischief addressed by the amendment, and its purpose, are all factors to be taken into account in determining when special circumstances exist. That individual hardship is relevant is also clear from the second reading speech. 1. The Tribunal in Oslear was not satisfied that special circumstances existed in the matter before it and concluded at [39-41] as follows: 39. I do agree with the Commissioner's submission that a non-commercial purpose alone does not constitute special circumstances for the purposes of s 32(1A) of the HBA. Something more is required for special circumstances to exist. In this regard I agree with the previous decision of the Tribunal in Hammoudi and McGufficke. By the use of the words "special circumstances" in s 31(1A) Parliament has indicated that considerations of fairness and justice, as well as considerations of hardship, play a part in the Commissioner's exercise of the discretion as to whether or not special circumstances exist. So too do considerations of whether there are commercial factors which the applicant can leverage to his or her advantage, if granted an owner builder permit with respect to a dual occupancy. I note that the applicant submitted that the second reading speech confined such commercial gains, to "inappropriate commercial gains only." I do not accept that this should be read into the meaning of words 'special circumstances' in s 32(1A), thereby elevating the words of the second reading speech to statutory status. 40. The fact that an applicant intends to live in the principal dwelling of the dual occupancy does not constitute a special circumstance. To be eligible to be issued with an owner builder permit with respect to a dual occupancy s 81(2)(c) requires that an applicant must intend to live there. For special circumstances to exist, something beyond a non-commercial objective and continued residence must be shown to exist. What that something may be will depend on each case. It would be unwise to seek to anticipate such circumstances before they arise. In this case, beyond his insistence that no commercial purpose underlies the application, and that he will live in the new dwelling with his family, the applicant has not pointed to any other factor that amounts to a special circumstance. 41. With respect to whether or not there is a commercial purpose to be achieved if the applicant is granted an owner-builder permit, there is a dearth of evidence. The applicant has not put on any evidence, aside from the DA, which gives any indication of the size and uses of the land involved and its current value; the nature of the existing dwelling; its value and likely rent; the likely value of the new dwelling when completed (beyond is estimated cost); the rules relating to sub-division (beyond his statement that it is not currently subdividable, and concerning which there is no evidence); or of the proposed financial arrangements relating to the construction of the new home and the rental of the existing dwelling. In my view information of this kind is necessary to properly consider whether any and what commercial advantage is likely to arise from the issue of an owner builder permit of a dual occupancy. The applicant has said he will rent the existing dwelling, or sell it if he can, but has given no evidence of the likely rental. On the available evidence I cannot determine whether or not the there is a commercial benefit likely to flow from the granting of the application for an owner builder permit. The Applicant's claim for special circumstances 1. In the Application, the box has been ticked to indicate that the Applicant is claiming special circumstances and a completed Additional Details Form 7 (Form 7) is attached. In response to question 4.1 in Form 7 stating "If you are constructing a new dual occupancy, do you intend to subdivide the dual occupancy and sell either or both of the dwellings?", no response has been given. In response to question 4.2, "If you do not intend to sell, who will be the occupants of both dwellings ?" the following response has been provided: THE CURRENT EXISTING DWELLING WILL BE OCCUPIED BY MYSELF. WE HAVE NO INTENTION TO SELL EITHER PROPERTY, THE SECOND DWELLING ON COMPLETION WILL BE OCCUPIED BY THREE ADULT CHILDREN. REJECTING THIS APPLICATION WILL CAUSE FAMILY HARDSHIP. 1. Also attached to the Application is a copy of the Applicant's general construction induction card (white card), a Statement of Attainment from Absolute Education (Statement of Attainment) and a copy of a rates notice for the Property. Pages 1 and 2 of a Notice of Deferred Commencement Consent Becoming Operative dated 22 June 2022 and pages 1 and 2 of a Notice of Determination of Development Application…"Deferred Commencement" dated 20 September 2021 (Notice of Determination) are also attached. 2. Included in the s 58 material (exhibit R1) is the following undated and unsigned letter (sic): The urgency and necessity for the second dwelling is for improving our family situation due to our current cramp living in a two-bedroom house with three of my adult children. Most importantly, keeping my family close by me including my elderly mother which will be moving in for medical care and safety purposes. Economical and affordability is another factor by administering and building our new house as I am unable to move into another home due to souring increase in value of new homes. 1. A further unsigned letter from the Applicant dated 15 October 2022 was submitted for the purpose of the internal review, and contains essentially the same information as previously provided but states that on completion of the new dwelling, it will be occupied by the Applicant's three adult children and the Applicant's mother. 2. The Applicant's affidavit contains the following in relation to her claim for special circumstances: 1. The Applicant enlisted Mr Ayoub's help during the planning stage due to his building knowledge, skills, network and contacts of people in the building industry. 2. The development application for the Property has no subdivision component nor is it her intention to ever subdivide the Property. 3. Upon obtaining the development approval, she and Mr Ayoub enquired with builders as to the costs of developing a second dwelling on the Property as per the approved plans and they were being quoted figures in the vicinity of $400,000. This figure was well above the Applicant's budget. 4. The Applicant has approximately $190,000 in savings which they have estimated will take her to the lock-up/enclosed stage. After lock-up, the plan is to finalise the project slowly as she has funds come through. Mr Ayoub has provided her with his intentions to assist her in funding the project, by way of a loan, if required, up to $75,000 which he has set aside for this project to keep construction flowing. 1. The Applicant then states that she decided to apply for an owner builder permit for a number of reasons, the first of which is that engaging a builder would cause her financial pressure and time constraints pressure. She then reiterated that the new dwelling will be used to house her elderly mother, who is 75, as well as the Applicant's three children; she does not intend to ever subdivide or sell the Property, and this is evident in the absence of a subdivision component in the development application. The Applicant states that Mr Ayoub has a network of tradespeople who are willing to assist in constructing the project. Attached to the Applicant's affidavit as Annexure A is a quotation from Amy Group Australia Pty Ltd (Amy Group) prepared by Jean Pierre Amyouni and dated 15 December 2022. 2. The Applicant gave evidence that she purchased the Property in or around May 1996. She initially lived in the existing two bedroom house at the Property with her husband and three children until her divorce 19 years previously. She has continued to reside there since that time with her three children who were aged 23, 21 and 19 at the date of the hearing. She said that they had had the same bedrooms since they were babies, and that the Applicant sleeps on a lounge. The Applicant stated in cross-examination that as at the date of the hearing, her daughter had moved out but that ultimately the Applicant would bring her back home. She also said that two of her children worked part-time and the other one was not working as she had lost her job. She stated that none of her children were able to contribute financially to the development. 3. Mr Ayoub's affidavit refers to a number of the matters relied upon by the Applicant to establish special circumstances and states that "If the Applicant is forced to engage a builder to develop the property, this will cause her severe financial hardship due to her current financial situation." Mr Ayoub did not provide any detail in relation to this statement. Consideration Applicant's family situation 1. The Applicant stated in the Application that "most importantly" she wanted to keep her family close by to her, including her three adult children as well as her elderly mother who would be moving in for "medical, care and safety purposes." The Applicant's evidence was that her mother was aged 75 at the time of the hearing and in cross-examination stated that her mother was currently living by herself in Minto. 2. As indicated above, Mr Ayoub's affidavit refers to a number of the matters relied upon by the Applicant as special circumstances to justify the grant of an owner-builder permit. Whilst Mr Ayoub is the Applicant's cousin, the affidavit does little more than reiterate the claims made by the Applicant for special circumstances as outlined in the Application and subsequent proceedings, and does not provide any further detail of those matters. Mr Ayoub gave evidence in cross-examination that he had assisted the Applicant prepare her affidavit and that it was "me and her. Both of us prepared it." 3. Having regard to the above matters, and Mr Ayoub's stated role in the process to date , I find that the evidence given by Mr Ayoub in relation to the Applicant's claim for special circumstances cannot be accepted as objective evidence of those matters. In any event, as previously found, Mr Ayoub's evidence does not provide any further detail than that given by the Applicant. 4. No evidence was adduced from any of the Applicant's children or from the Applicant's mother. No objective evidence was provided in relation to the financial circumstances of the Applicant, the Applicant's children or that of her mother and there is no objective evidence as to their current or intended future living arrangements. No medical evidence was adduced in relation to the Applicant's mother or in relation to the medical, care or safety reasons that might require her to move out of her current home or to the potential time frame in which such a move might be required to take place. In cross-examination, the Applicant conceded that there was no medical certificate in the Application or before the Tribunal but stated that she could provide it if needed. Financial arrangements 1. As referred to previously, the Applicant says that after obtaining the development approval, she and Mr Ayoub enquired with builders as to the cost of building the second dwelling on the Property as per the approved plans and they were being quoted in the vicinity of $400,000. In cross-examination, the Applicant accepted that there was only one quotation before the Tribunal and that the others were verbal quotes. She said they had enquired about costs and did not think it necessary to get written quotations but could get them, if needed. 2. Accordingly, the only quotation for the construction costs before the Tribunal is that from Amy Group. The quotation is dated 15 December 2022 and includes reference to eight different stages, with Stage One being "DA Approval" and Stage Two being "CC Approval". These stages are shown as completed and indicate that a total of $39,120 was paid for these stages between 4 December 2020 and 18 July 2022, including amounts for "Architectural Plans – concept Landscape Plan", "Fairfield Council- Planning DA Fee…& Development Contributions", "Alma Building -Private Certifier" and "PCA Fees". The note under the heading "Stage Three – Construction" states that "Stage 1 & 2 must be approved prior (sic) commencing building". 3. The remaining stages in the quotation relate to construction and total $320,000. A note on the last page states (sic) "Our Fees & Charges to Complete this Project is 25% of $320,000 being the Cost Price of Building = $80,000". The total cost of the "Project" is stated to be $400,000 and does not include the costs paid in relation to the first two stages. A further note on the last page states (sic) "All costs is depending on todays 15/12/2022 prices Single storey dwelling, Brick veneer & 5 bedrooms & Double Garage". No further evidence was provided in relation to the quotation. 4. From the quotation it is apparent that Amy Group was involved in the project from some time prior to 28 October 2020, at which date the "Surveyor -Aspect Development" is shown as "Completed" at a cost of $1,408 and Amy Group continued to be involved in obtaining "DA Approval" and "CC Approval" for what appears to be a five bedroom, single storey dwelling with a double garage. I find that the ongoing involvement of Amy Group from at least October 2020, is not consistent with the evidence from the Applicant that she and Mr Ayoub only enquired with builders as to the costs for the second dwelling after obtaining the development approval. The reference to a five bedroom dwelling in the Amy Group quotation is also inconsistent with the evidence of the Applicant that the new dwelling would have four bedrooms. In the absence of approved plans, it is not possible to determine the size or layout of the new dwelling. 5. The Applicant stated that the amount of $400,000 is well above her budget. She says in her affidavit that she has approximately $190,000 in savings which "we have estimated can take me to the lock-up/enclosed stage" and that after lock-up/enclosed stage, the plan is to finalise the project slowly as she has funds come through. 6. The Applicant was asked in cross-examination about the potential loan of up to $75,000 from Mr Ayoub and said that when she gets the loan, she will pay Mr Ayoub back when she can and that "we decided on $300 per week". During his cross-examination, Mr Ayoub said that he will only provide the Applicant with the loan once an owner-builder permit is given. When asked if he had discussed repayment of the loan with the Applicant, he said that he had not. It is clear from this evidence that there are inconsistencies between the Applicant and Mr Ayoub on this issue. 7. The Applicant stated that she had enlisted Mr Ayoub's help, in part, because of "his network and contacts of people in the building industry". Whilst the Applicant gave evidence that she understood the requirements of being an owner-builder and that if granted an owner-builder permit she intended to use "licenced people", she did not give, or adduce, any evidence as to the process that she planned to undertake in relation to the new dwelling; who would be carrying out the partial demolition of the existing house or the construction of the new dwelling; or the estimated cost of carrying out such works as an owner-builder. No evidence was adduced in relation to any potential difference between the costs of engaging a builder and using "licenced people", as the Applicant said that she intended to do. 8. Other than the Applicant's evidence in relation to her approximate savings, there is no evidence in relation to her financial capacity; no evidence as to her current or future income; any liabilities that she may have or to any funds that may come through to the Applicant in the future; the source of such funds, the timing of them or the quantum. No objective evidence was provided in relation to the Applicant's finances or to support the submission that the financial capacity of the Applicant means that engaging a builder will cause financial hardship. Commercial purposes 1. The Applicant gave evidence that she has no intention of subdividing or selling the Property, and this is evident in the absence of a subdivision component in the development application. The Respondent submitted that there is no objective evidence to support these assertions. 2. In cross-examination, the Applicant was asked whether it may have been more economical to extend her existing two bedroom home rather than to build a new dwelling. She replied that she looked into that before she looked into building but that everyone that she spoke to said that it was not financially worth fixing. The Applicant did not adduce any objective evidence as to the condition of the existing dwelling on the Property; its current value or likely rent; the cost of purchasing a new property; or the cost of renovating or extending the existing dwelling. No evidence was adduced as to the future value or likely rent for the two dwellings on the Property once the work was completed, other than the quotation from Amy Group relating to building costs for the new dwelling. 3. The Applicant's evidence was that she is building for herself and that she does not intend to ever sell or subdivide the Property. It was put to the Applicant in cross-examination that Fairfield Council allowed for subdivision of the Property and the Applicant responded that it may be the case but that it was not something that she had looked into. 4. It was submitted by the Respondent that Clause 4.1B(2) of the Fairfield Local Environmental Plan 2013 (LEP) allows for the subdivision of land in Zone R2 Low Density Residential and that the provision grants an owner of a dual occupancy on the land the ability to subdivide the property. Clause 4.1B(2) of the LEP relevantly provides as follows: (2) Despite clauses 4.1 and 4.1A, development consent may be granted for the subdivision of land in Zone R2 Low Density Residential into lots of less than the minimum lot size shown on the Lot Size Map in relation to that land if— (a) there is an existing dual occupancy on the land that was lawfully erected under an environmental planning instrument, and (b) the lot size of each resulting lot will be at least 300 square metres, and (c) there will be one dwelling on each resulting lot. 1. It was submitted by the Respondent that no plans or drawings relating to the Property were before the Tribunal. Attached to the Application is a document headed "Notice of Deferred Commencement Consent Becoming Operative" for the Property dated 22 June 2022. It consists of a page on Fairfield City Council letterhead together with a further page marked "2". The document indicates that the Development Consent for the Property is operative as of 22 June 2022 "in accordance with the approved plan (a copy of which is attached)". No further pages or documents, including the approved plan, are attached to the Application before the Tribunal. 2. Also attached to the Application is a "Notice of Determination of Development Application" for the Property with a "Deferred Commencement" (Notice of Determination). The Notice of Determination is dated 20 September 2021. It consists of a first page on Fairfield City Council letterhead together with a further page marked "2". There is reference to various plans in the two page document but no further pages or documents, including plans, are attached to the Application before the Tribunal. 3. In accordance with the timetable set by Senior Member Ransome on 20 December 2022, the Respondent filed the s 58 documents (exhibit R1), including the Application and attachments, on 24 January 2023. The affidavit of Mr Ayoub (exhibit A2) was subsequently filed for the Applicant on 15 February 2023. It was not in dispute that copies of all documents filed in the proceedings were served on the other party. 4. Mr Ayoub states in his affidavit that the development application does not allow for subdivision nor does the Applicant wish to subdivide the property. The affidavit does not attach copies of any approvals, plans or drawings relating to the Property. 5. The Respondent filed written submissions on 28 February 2023. The Respondent submitted that there was no objective evidence to support Mr Ayoub's assertion that the development application does not allow for subdivision nor does the Applicant wish to subdivide the property. It was submitted that the "copy of the Notice of Deferred Commencement Consent Becoming Operative attached to the [Application] is incomplete." The footnote to the submissions refers to pages 14 and 15 in the section 58 documents. This is the two page document dated 22 June 2022 referred to above and, as referred to previously, does not include copies of any plans. 6. The Applicant's affidavit was filed on 27 March 2023 and specifically states that the purpose of the Affidavit "is to clarify points made in the Respondents (sic) Submissions dated 28 February 2023". The Applicant says: In relation to paragraph 4.10 of the Respondents (sic) Submissions, we reject the assertion that the Notice of Deferred Commencement Consent Becoming Operative is incomplete. That document in its entirety is 3 pages. Annexed hereto and marked as Annexure "B" are copies of the Notice of Determination of Development Application 20 September 2023 and the Notice of Deferred Commencement Consent Becoming Operative dated 22 June 2022. 1. Annexure "B" to the Applicant's affidavit contains two documents. The first is headed "Notice of Determination of Section 4.55(2) "Deferred Commencement" Modification" from Liam Hawke of Fairfield City Council to Mr A Yousef and is dated 13 May 2022. The document consists of four pages. The document indicates that the application to modify the subject application has been approved. Reference is made to various plans within the document, but no plans are contained in the Annexure 2. The second document in Annexure "B" is a 16 page document headed "Notice of Determination of Development Application…Deferred Commencement" from Fairfield City Council to Liam Hawke to Mr A Yousef and is dated 20 September 2021. The first two pages of the document are identical to the two page Notice of Determination that was included in the Application. The document in Annexure "B" of the Applicant's affidavit includes a further 14 pages. The document refers to a number of plans, together with amendments in red to be incorporated into the development, but it does not include copies of any plans. 3. There was no further evidence in relation to the Applicant's reference to Annexure B containing a copy of the "Notice of Determination Of Development Application 20 September 2023", to the "Notice of Deferred Commencement Consent Becoming Operative dated 22 June 2022" or to the latter document in its entirety being three pages. 4. Given that the date of the hearing was 20 April 2023, it appears that the Applicant's reference in her affidavit to the date of 20 September 2023 was an error and that she intended to refer to the 16 page document referred to above and headed "Notice of Determination of Development Application…Deferred Consent" dated 20 September 2021. No copy of a "Notice of Deferred Commencement Consent Becoming Operative" dated 22 June 2022 was attached to the Applicant's affidavit and as referred to above, the other document annexed to the affidavit is the "Notice of Determination of Section 4.55(2) "Deferred Commencement" Modification" dated 13 May 2022, consisting of four pages. In any event, neither of the documents annexed to the Applicant's affidavit included copies of any plans or drawings. 5. Accordingly, the only copy of the "Notice of Deferred Commencement Consent Becoming Operative" dated 22 June 2022 is that attached to the Application (part exhibit R1), and this consists of two pages only and does not include any plans or drawings. 6. The Applicant was insistent in her evidence that the approved plans and drawings for the Property had been submitted to Service NSW and that she had personally handed them over. She said that she was not sure why they were not before the Tribunal or why the relevant box in the Checklist in the Application relating to the provision of copies of approved plans had not been ticked . She conceded however that whilst she provided the plans to Service NSW, she had later picked them up. 7. In cross-examination, the Applicant acknowledged that she had received the s 58 documents and had looked through them. She said that she had "probably" looked at the Notice of Deferred Commencement Consent becoming Operative dated 22 June 2022. Ms Robosa put to the Applicant that it was clear that the documents did not include plans and the Applicant responded, "Now yes, but not at the time." The Applicant agreed that she had read the Respondent's submissions dated 28 February 2023 and that her affidavit specifically referred to them and that she had rejected the assertion that the Notice of Deferred Commencement Consent Becoming Operative was incomplete and had stated the document in its entirety is 3 pages. She agreed that the plans formed part of this document but were not included as part of her affidavit. 8. She later said that she did not know why the plans were not included as it was her understanding that the plans had been given to Service NSW. She went on to say that she was not a legal person and that it was her mistake and an oversight on her part. She also indicated that if the Respondent wanted them, a subpoena for the documents could have been issued. 9. In cross-examination, Mr Ayoub agreed that he had received the s 58 documents and had reviewed them. He also agreed that he had received the Respondent's submissions dated 28 February 2023 and had read them, including the reference to the copy of the Notice of Deferred Commencement Consent Becoming Operative attached to the Application being incomplete. 10. Mr Ayoub was taken to the part of the Applicant's affidavit responding to the Respondent's submissions and the annexures to the affidavit. Ms Robosa asked him if he agreed that the copies of the documents before the Tribunal did not include any drawings or plans. Mr Ayoub said that he did not see the need for them but that he had them and could provide them if needed. At the conclusion of Mr Ayoub's evidence, the Applicant was provided with an opportunity to ask Mr Ayoub further questions or to clarify any issues and declined to do so. 11. Having regard to the evidence before me, I am satisfied that no copies of any approved plans, or indeed any plans, relating to the Property or to the approved building work are before the Tribunal. I accept that plans were provided to Service NSW and were later picked up by the Applicant and that copies were not kept by Service NSW. Accordingly, it is not possible to ascertain what those plans were or what they contained. 12. I am satisfied that as a consequence of the Respondent's submissions filed on 28 February 2023, the Applicant was on notice of the contention that the Notice of Deferred Commencement Consent Becoming Operative attached to the Application was incomplete and that the timetable set down by Senior Member Ransome allowed the Applicant to put on further evidence relating to this document. An affidavit by the Applicant was subsequently filed in which she rejected the assertion that the document was incomplete. The Applicant was self-represented at the hearing and was afforded an opportunity during closing submissions at the hearing to make an application to file further evidence in the matter. The Applicant declined to do so, on the basis that she wanted the matter to be finalised. 13. As a consequence, there is no evidence before the Tribunal that gives an indication of the size or use of the lot relating to the Applicant's Property and no plan or other evidence showing the placement of the existing dwelling and the approved new dwelling on the Property. There was no evidence as to the current or future value of the Property or any evidence by the Applicant that addressed the Respondent's submission that the Property could potentially be subdivided, other than to say there is no intention to do so. Inconsistencies in the evidence 1. In addition to the inconsistencies previously referred to, there were further inconsistencies in the evidence given by the Applicant and Mr Ayoub in relation to the training undertaken by the Applicant and relied upon by her in the Application. During cross-examination of the Applicant about the Statement of Attainment attached to her Application, the Applicant said that she did the course online on a computer at her home. She said that she did not get assistance to answer the questions and when asked if Mr Ayoub assisted her, she said "No." 2. Mr Ayoub was cross-examined in relation to the Applicant's Statement of Attainment, and he gave evidence that the Applicant completed the course in 2021. He said that the Applicant completed the course at his place on the computer in a little office that had been set up. He said that she did so as she does not have a computer at her home. He later clarified that whilst the Applicant does not have a computer, she does have a laptop. His evidence was that when the Applicant asked a question, he assisted her. In submissions, the Applicant submitted that she had completed the course herself. 3. In relation to the Applicant's white card, the Applicant's evidence was that she had gone to a course somewhere in Parramatta and completed it in person. She made no reference to Mr Ayoub being at the course. Mr Ayoub's evidence was that the course was required to be conducted in person and that he had done the course with the Applicant. He did not provide any reasons as to why he had done the course. Consideration 1. I agree with the statement of Senior Member Molony in Oslear at [36], that "each case will have to be considered individually with the applicant bearing the statutory burden of satisfying the Commissioner that special circumstances exist. I am inclined to the view that this will usually require the applicant to adduce evidence of the financial arrangements surrounding the construction and subdivision, as well as personal and family circumstances." 2. The Applicant has given evidence that she intends to live in the existing dwelling of the proposed dual occupancy but this does not of itself constitute a special circumstance as it is a requirement of s 31(2)(c) of the HBA. I accept that the Applicant has a genuine desire to keep her mother and her three adult children close by to her, but I am not satisfied that this of itself is sufficient to constitute special circumstances. 3. It is incumbent upon the Applicant to demonstrate that there are special circumstances to be successful in her application. In the current matter, the Applicant has failed to adduce any objective evidence, including medical evidence, in relation to her family circumstances or any objective evidence in relation to her financial circumstances. Further, there is no objective evidence of either the family hardship or the financial hardship that the Applicant submits would ensue if an owner-builder permit was not granted in relation to the construction of the new dwelling on the Property. 4. As was the case in Oslear, I also find that there is a dearth of evidence in this matter as to whether or not there is a commercial purpose to be achieved if the Applicant is granted an owner-builder permit and I am unable to determine whether or not there is a commercial benefit likely to flow from the granting of the application for an owner builder permit. 5. I have previously found that the evidence of the Applicant and Mr Ayoub is inconsistent on a number of points. In considering the issue of special circumstances, these inconsistencies serve to highlight the lack of objective evidence adduced by the Applicant in this matter. Accordingly, I am not satisfied that special circumstances exist under s 32(1A) of the HBA that justify the issue of an owner-builder permit to the Applicant and accordingly, such a permit must not be issued. 6. Having made this finding, it is not necessary to consider what, if any, effect the Applicant's health, the circumstances in which she obtained her Statement of Attainment and white card, or Mr Ayoub's extensive involvement have on the Application. Orders The decision under review is affirmed. ********** I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar 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: 07 September 2023