Land and Environment Court New South Wales Medium Neutral Citation: Geo DPPB Pty Ltd v Burwood Council [2023] NSWLEC 129 Hearing dates: 23 November 2023 Date of orders: 23 November 2023 Decision date: 23 November 2023 Jurisdiction: Class 1 Before: Pritchard J Decision: The Court makes the following orders: (1) The respondent's Development Control Order (Stop Works Order – Schedule 5 Part 1, Item 2) given to the applicant on 3 October 2023 pursuant to s 9.35(1)(b) of the Environmental Planning and Assessment Act 1979, in respect of 1 Lea Street, Croydon is stayed insofar as it concerns the following works: (a) timber cross bracing the façade of the front veranda and erecting a tarpaulin to ensure its preservation; and (b) carrying out brickwork as shown in drawing No DA2-08 but only to the extent of the area hatched in blue in the plan annexed to these reasons for decision and marked "A" and installing any further temporary support of the garage roof. (2) Each party is to pay its own costs. Catchwords: PRACTICE AND PROCEDURE – application for stay of development control order – whether there is an arguable case – balance of convenience – demolition works not authorised by development consent Legislation Cited: Environmental Planning and Assessment Act 1979 (NSW) ss 8.18, 8.20, 9.34, Schedule 5, Part 1, Item 2 Cases Cited: Alexander v Cambridge Credit Corporation Ltd (1985) 2 NSWLR 685 Blacktown City Council v Satmell Holdings Pty Ltd [2019] NSWLEC 93 CVA Apartments Pty Ltd v Burwood Council [2020] NSWLEC 11 Malass v Strathfield Municipal Council [2020] NSWLEC 168 Ozaras v Inner West Council [2020] NSWLEC 1573 Secretary, Department of Planning and Environment v Leda Manorstead Pty Ltd (No 4) [2019] NSWLEC 58 Snowy Monaro Regional Council v Cmunt (No 3) [2018] NSWLEC 175 Swadling v Sutherland Shire Council (1994) 82 LGERA 431 Texts Cited: Nil Category: Procedural rulings Parties: Geo DPPB Pty Ltd (Applicant) Burwood Council (Respondent) Representation: Counsel: C Koikas (Applicant) N Kirby (Respondent) Solicitors: Finn Roache Lawyers (Applicant) Houston Dearn O'Connor Lawyers (Respondent) File Number(s): 2023/345644 Publication restriction: Nil JUDGMENT Introduction 1. These proceedings were commenced by a Class 1 application filed on 31 October 2023, being an appeal pursuant to s 8.18 of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) seeking the revocation a development control order given by Burwood Council (Council) on 3 October 2023 (the DCO). The DCO was given under s 9.35(1)(b) of the EPA Act, being a "Stop Work Order" within Item 2, Part 1, of Schedule 5 to the Act. 2. Geo DPPB Pty Ltd (the applicant) is the registered proprietor of property at 1 Lea Street, Croydon NSW (the property). The property is situated in the Malvern Hill Heritage Conservation Area (HCA) pursuant to Schedule 5 to the Burwood Local Environmental Plan 2012 (Burwood LEP). 3. On 17 May 2023, Council gave notice of the determination of a development consent pursuant to s 4.18(1)(a) of the EPA Act, notifying that development consent No DA.2022.87 for "[a]lterations and additions to an existing dwelling, alterations to an existing garage and new swimming pool" at the property (the works) was "granted subject to conditions" (the development consent). 4. By notice of motion filed on 9 November 2023, the applicant sought a "partial stay" of the DCO in the following terms: 1. That the Respondent's Development Control Order (Stop Works Order - Schedule 5 Part 1, Item 2) issued to the Applicant on 3 October 2023 pursuant to s 9.35(1)(b) of the Environmental Planning and Assessment Act 1979, in respect of 1 Lea Street, Croydon is stayed insofar as it concerns: (a) the following works authorised by Construction Certificate No. CC 12.2022.87.1 (CC): i. Levelling and excavation of the site in accordance with CC Drawing No. CD-03, titled Excavation Plan, dated 17 July 2023; ii. Installation of the dincel walls in accordance with CC Drawing No. CD- 08, titled Section, Garage Elevations, dated 17 July 2023; iii. Excavation and construction of the swimming pool in accordance with CC Drawing Nos. CD-03, titled Excavation Plan, dated 17 July 2023; and iv. Any ancillary works required for the items (i) - (iii) above, such as provisions for electrical, plumbing and other services. (b) the following emergency works: i. Bracing what remains of the front facade and erecting a tarp to ensure its preservation; and ii. Erecting walls and any preparatory works to the erection of those walls to support the roof of the garage as shown in CC Drawing No CD-08, titled Section, Garage Elevations, dated 17 July 2023. 1. The notice of motion was listed for hearing before me today as duty judge. At the hearing this morning, the applicant conceded that demolition works had been undertaken at the property which are not authorised by the development consent. The applicant also sought an order not previously notified to the Court or Council to the effect that the DCO be stayed so that works otherwise authorised by the consent be undertaken. 2. The applicant submitted that such an order could be made without particularising the works not subject of the DCO. I indicated that I would not make such an order as it would not resolve the issues between the parties. Mr Koikas for the applicant accepted that such an order would likely bring the matter back before the Court with Council seeking an injunction. 3. At the conclusion of the hearing of the motion this morning, I adjourned the matter to enable the parties to confer and identify with more specificity the orders they seek in relation to the partial stay of the DCO. The parties agreed to provide orders to chambers by 1:00pm today, and that judgment and orders be made by me in chambers this afternoon to avoid the expense of further appearances. 4. Subsequently, an email was received from the parties attaching an amended notice of motion containing orders agreed by the parties and an annexure (Annexure A), being a plan referred to in the amended notice of motion in relation to the carrying out of brickwork as shown in drawing No DA2-08 dated 2 November 2023, with areas of the garage hatched in blue. 5. The orders sought in the amended notice of motion, and agreed (the agreed orders) are: 1. That the Respondent's Development Control Order (Stop Works Order – Schedule 5 Part 1, Item 2) issued to the Applicant on 3 October 2023 pursuant to s 9.35(1)(b) of the Environmental Planning and Assessment Act 1979, in respect of 1 Lea Street, Croydon is stayed insofar as it concerns: (a) the following works: i. timber cross bracing the façade of the front veranda and erecting a tarpaulin to ensure its preservation; and ii. carrying out brickwork as shown in drawing No. DA2-08 but only to the extent of the area hatched in blue in the plan attached to this amended notice of motion and marked "A" and installing any further temporary support of the garage roof. 2. Each party pays their own costs. 1. I have determined that Council's development control order (Stop Work Order – Schedule 5, Part 1, Item 2) given to the applicant on 3 October 2023 pursuant to s 9.35(1)(b) of the EPA Act in relation to 1 Lea Street, Croydon, is stayed insofar as it concerns the following works: 1. timber cross bracing the façade of the front veranda and erecting a tarpaulin to ensure its preservation; and 2. carrying out brickwork as shown in drawing No DA2-08 but only to the extent of the area hatched in blue in the plan annexed to these reasons for decision and marked "A" and installing any further temporary support of the garage roof. Background 1. On 28 August 2023, the applicant engaged Mr Adam Alexander of Crownview Projects Pty Ltd (Crownview Projects) to undertake the works in accordance with the development consent. 2. On 19 September 2023, Exclusive Certifiers Pty Ltd issued Construction Certificate No 3223 pursuant to s 6.7 of the EPA Act in relation to the development consent (the CC). 3. On or about 20 September 2023, Mr Alexander raised with Mr Daniel Georges, spouse of the director of the applicant, that "the front part of the house remaining as per the plans [was] not stable". On 25 September 2023, Mr Alexander alerted Mr Georges to "very weak" internal walls which he said posed a safety risk. 4. On 26 September 2023, Mr Alexander commissioned Australian Engineering Consultants (AEC) to undertake an emergency inspection of the property. AEC advised as follows: It is highly recommended on an OH&S level and structural viewpoint that the internal brick be removed and reconstructed. Furthermore, upon review of the CC structural plans, it is a requirement that new footings and piers to rock foundations be installed at the location of this single internal brick. It is not possible in our opinion to construct the piers and new footings in accordance with the engineering plans without the removal of the internal brick skin to the front façade. There is a concern for collapse of the walls that will cause danger to personnel and the surrounding properties causing damage to surrounding structures, injury, or death if the walls are left unattended. 1. Between 27 September 2023 and 3 October 2023, and upon the advice of AEC, Mr Alexander proceeded with demolition works on the property. These included removal of the chimney, internal walls for the front of the dwelling and some parts of the garage (the further works). The further works were accepted by the applicant in its written submissions to go "beyond what were authorised in the CC". At the hearing this morning, the applicant readily conceded that the demolition works go beyond what is authorised in the development consent. 2. On 3 October 2023, Council gave the DCO to the applicant. The terms of the DCO were as follows: Stop all work immediately being carried out at the premise [sic]. 1. The reasons for the DCO were that: 1. Building works at the premises have been carried out in contravention of the approved conditions of consent of DA.2022.87 dated 17 May 2023; 2. Council is concerned that further works carried out may not be in accordance with the approved conditions of consent of DA.2022.87 dated 17 May 2023; 3. The building has been demolished in contravention to the works approved in DA.2022.87 dated 17 May 2023. 4. Building works as approved were for alterations and additions to a dwelling house. As the dwelling house has now been demolished, the consent is now considered to be invalid as the dwelling no longer exists and therefore there is no development consent in place for any proposed building work to be carried out. 5. Council, being responsible for ensuring orderly development throughout the Burwood Local Government Area (LGA), requires the Order so as to ensure that there is orderly and properly approved development in its LGA. Evidence The applicant's evidence 1. At the hearing of the motion today, the applicant read affidavits of: 1. Mr Daniel Patrick Georges, solicitor for the applicant and spouse of the sole director/secretary of the applicant, sworn 9 November 2023; and 2. Mr Adam Alexander, director of Crownview Projects and the applicant's builder, sworn 20 November 2023. 1. Mr Georges deposes that "[i]n accordance with the development consent, the [a]pplicant, at great expense, is reinstating key period features into the [p]roperty using materials and designs sympathetic to the conservation area and contributory to the buildings within the vicinity". 2. Mr Georges says that no persons have entered the property since the DCO was given on 3 October 2023, and that works under the development consent which remain outstanding include the following: 1. the garage ceiling has been left unsupported on temporary props, Mr Alexander having "engaged a brick-layer...to re-instate the brick works to stabilise the roof structure"; 2. the front façade is propped, but needs "to be tarped to protect the exposed timber work from the rain"; 3. cleaning of the site has not been undertaken and remains unsafe "in circumstances where there had been strong winds"; and 4. demolition equipment and excavators remain on site and are incurring weekly costs. 1. Mr Georges says that the applicant has instructed its architect and heritage advisor to prepare a set of architectural plans and a statement of environmental effects to be lodged with Council as part of an application for modification of the development consent pursuant to s 4.55 of the EPA Act (the modification application). The modification application is "intended to seek consent for the reconstruction of the portions of the dwelling that were demolished which fell outside the scope of what was authorised to be demolished pursuant to the [d]evelopment [c]onsent". 2. Mr Alexander deposes that prior to the DCO being given on 3 October 2023, the following works had been scheduled to be completed before Christmas 2023: 1. further demolition works (site clean up, removing any rubbish and pollution); 2. protection of the front timber façade; 3. re-bricking of the garage; 4. surveying for layout of the lower ground slab, pool and ancillary; 5. provision of services (including agricultural lines for stormwater runoff) for the lower ground slab, pool and ancillary; 6. excavation for lower ground slab and pool; 7. concrete pour for the pool and provision of plumbing and electrical; 8. concrete pour for the lower ground slab; and 9. installation of a dincel wall system and bricking for the lower ground. 1. Mr Alexander says that these works would take place under the approved plans for the development consent, the modification application (which was "not accepted by [Council]"), a requested "reinstatement order" (which was "not accepted by [Council]") and/or a new development application which would be lodged by the applicant (subject to Council approving them). Mr Alexander says that he was "informed and verily believe[d] that the [a]pplicant [would] be filing a new development application substantially like...the approved plans for [the development consent] as soon as they are made available by their architect". The reason for filing a new development application, Mr Alexander deposes, is because Council "refused to issue a reinstatement order or accept a section 4.55 modification plan, which was submitted by the [a]pplicant as alternatives to filing a new development application". 2. Mr Alexander says that if the works at [22] above are not completed in the 14 days from the date of swearing his affidavit, being 20 November 2023, the following "will almost inevitably happen": 1. existing trades booked to undertake the works would schedule in other works and be unavailable; 2. existing contract prices would be lost and the applicant would have to renegotiate new rates or find new trades, which was "likely to result in higher prices"; and 3. "[g]iven the uncertainty of when a new development application will be approved even if lodged this week, the [a]pplicant will not be able to retain any trades to complete works until a new development application is approved and new construction certificate issued". 1. Mr Alexander says that if works are able to continue on the property, these "issues" could be avoided. Council's evidence 1. Council read an affidavit of Mr Brian Olsen, manager of city development, sworn 17 November 2023. Mr Olsen says that the DCO was given "in circumstances where almost the entirety of a cottage on the land has been demolished", and that "the cottage makes a contribution to the [HCA]". Mr Olsen says that the cottage's contribution to the HCA is "substantially via detailing to a front timber veranda", and that such detailing "remains despite the demolition works that have been undertaken". Mr Olsen says that in the event the Court orders a stay of the DCO, "the veranda detailing should be protected" as if it were demolished or otherwise removed, its contribution to the HCA would be "lost". 2. Mr Olsen deposes that Council consents to the applicant undertaking the works described in order 1(b)(i) of the applicant's notice of motion filed 9 November 2023, being "[b]racing what remains of the front façade and erecting a tarp to ensure its preservation". However, Council opposes the remainder of the works proposed in order 1(a)(i) to (iv) and order 1(b)(ii) of the notice of motion filed 9 November 2023 being undertaken on the grounds that they are not "necessary for protection of the land or the public". Rather, they are works "associated with a consent for alterations and additions to an existing dwelling whereas the existing dwelling no longer exists". 3. Mr Olsen deposes that the appropriate course to be adopted, which he understands to be taking place, is that the applicant lodge a fresh development application for "a new dwelling on the land" which would be considered by Council. Mr Olsen says that the property can be protected by means of an appropriate fence until such time as a fresh development consent is granted. In relation to the garage roof, Council "would not oppose works on the land that place additional temporary supports if required". 4. At the hearing of the motion this morning, I raised with Mr Kirby, counsel for Council, that the Court could not make any such order without greater particularity from the parties in relation to the placement of additional temporary supports. Mr Kirby accepted as much, and the parties subsequently conferred in relation to a form of orders for the partial stay of the DCO. Relevant statutory provisions and principles in relation to a stay 1. The DCO was given by Council on 3 October 2023 pursuant to s 9.34 of the EPA Act. Section 9.34 provides as follows in relation to development control orders that may be given: 9.34 Orders that may be given (1) The development control orders that may be given under this Act are as follows— (a) general orders in accordance with the table to Part 1 of Schedule 5, (b) fire safety orders in accordance with the table to Part 2 of Schedule 5, (c) brothel closure orders in accordance with the table to Part 3 of Schedule 5. (2) The regulations may amend those tables. (3) A reference in those tables to a planning approval is a reference to a development consent, an approval for State significant infrastructure or a certificate under Part 6 (other than a compliance certificate). Note— See also Part 4 of the Building Products (Safety) Act 2017. 1. Section 9.35(1)(b) of the EPA Act provides that development control orders may be given by relevant enforcement authorities which include a council. 2. Section 8.18 provides for appeals concerning orders as follows: 8.18 Appeals concerning orders (1) A person who is given a development control order may appeal to the Court against the order. ... (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. Section 8.20 of the EPA Act provides: 8.20 Effect of appeal on order If an appeal is duly made to the Court against a development control order, the appeal does not effect a stay of the order. 1. It was common ground that the Court has power to order a stay of a development control order. CVA Apartments Pty Ltd v Burwood Council (CVA Apartments) [1] concerned three Class 3 appeals seeking to revoke or modify three development control orders given by the respondent Council requiring the applicants to stop using the building at 50-60 Burwood Rd, Burwood, for the purpose of apartments, a hotel, a restaurant, a café and associated uses, until such time as a valid occupation certificate was issued. Pepper J said at [35] to [39] in relation to the Court's power to grant a stay of development control orders as follows: 35. Initially the Council sought to argue that the Court had no power to grant a stay of the Orders in Class 1 of the Court's jurisdiction. However, during argument it resiled from this contention. In my view, it was correct to do so in light of the powers of the Court contained in ss 22 and 23 of the Land and Environment Court Act 1979 ("the LEC Act"). 36. Those provisions state the following: 22 Determination of matter completely and finally The Court shall, in every matter before the Court, grant either absolutely or on such terms and conditions as the Court thinks just, all remedies to which any of the parties appears to be entitled in respect of a legal or equitable claim properly brought forward by that party in the matter, so that, as far as possible, all matters in controversy between the parties may be completely and finally determined and all multiplicity of proceedings concerning any of those matters may be avoided. 23 Making of orders The Court has power, in relation to matters in which it has jurisdiction, to make orders of such kinds, including interlocutory orders, as the Court thinks appropriate. 37. Section 22 was relied upon as the source of the Court's power to grant a stay in Crosseyed Management Pty Ltd v Parramatta City Council [2013] NSWLEC 53 (at [3] per Craig J). 38. In Eniflat Pty Ltd v Tweed Shire Council [2019] NSWLEC 150 Pain J (at [2]) accepted that the Court had the power to grant a stay in Class 1 proceedings. Her Honour so held after having read the transcript of the interlocutory hearing granting a stay by Preston J (no reasons given) on 21 December 2019, where his Honour relied on s 23 of the LEC Act (T10:48–11:06). 39. Without having to decide whether either or both provision confer power on the Court to grant a stay in Class 1 appeals, I accept that the Court has the requisite power to do so. Counsel for the Council accepted the binding nature of the authorities referred to above insofar as he did not seek to argue that either was plainly wrong. 1. In Snowy Monaro Regional Council v Cmunt (No 3), [2] Pepper J summarised the principles in relation to the granting of a stay at [17] as follows: (a) first, it is not necessary for the grant of a stay that special or exceptional circumstances be made out. It is sufficient that the applicants for the stay demonstrate a reason or an appropriate case to warrant the exercise of discretion in their favour; (b) second, the onus is upon the applicant to demonstrate a proper basis for a stay that will be fair to all parties; (c) third, the mere filing of an appeal will not, of itself, provide a reason or demonstrate an appropriate case, nor will it discharge the onus which the applicant bears; (d) fourth, the Court has a discretion whether or not to grant the stay and, if so, as to the terms that would be fair. In the exercise of its discretion, the Court will weigh considerations such as the balance of convenience and the competing rights of the parties before it; (e) fifth, where there is a risk that the appeal will prove abortive if the appellant succeeds and a stay is not granted, courts will normally exercise their discretion in favour of granting a stay; and (f) sixth, although courts approaching applications for a stay will not generally speculate about the appellant's prospects of success, given that argument concerning the substance of the appeal is typically and necessarily attenuated, this does not prevent them from making a preliminary assessment about whether the appellant has an arguable case. 1. The power to grant a stay may be subject to conditions requiring the taking of positive action. [3] Issues to be determined 1. The issues for the Court in determining whether to grant a "partial stay" of the DCO, in the terms sought by the parties in the agreed orders provided this afternoon are: 1. whether the applicant has an arguable case; and 2. whether a stay or conditional stay is warranted in the exercise of the Court's discretion, having regard to the balance of convenience and the competing rights of the parties. [4] 1. The applicant bears the onus of demonstrating a proper basis for a stay which will be fair between the parties. [5] Whether the applicant has an arguable case The applicant's submissions 1. In its written submissions, the applicant referred to the following "restrictions" in Item 2, Part 1 of Schedule 5 in relation to stop work orders: Column 1 Column 2 Column 3 To do what? When? To whom? Stop Work Order Building work or subdivision work is carried out— • Owner of the land 2 To stop building work or subdivision work carried out in contravention of this Act • in contravention of this Act, or • Any person apparently engaged in the work • in a manner that would affect the support of adjoining premises. 1. The applicant submitted that the DCO goes beyond the restriction in column 1 in that they required the applicant to "Stop all work immediately being carried out at the premise [sic]". 2. The applicant submitted that the DCO requires works to stop even if those works are capable of being carried out under the Act, rather than to stop works "in contravention" of the Act (which "the applicant does not intend to do"). That was said to cause conflict with the restriction in column 1 of Item 2, and accordingly, there is "a real question to be tried as to whether the scope of the DCO is beyond power". 3. If the DCO is beyond power, the applicant submitted, a further serious question arises as to whether the development consent is "capable of being acted upon or whether it is invalidated by the [f]urther [w]orks". The applicant submitted that the development consent "can be acted upon". 4. The applicant referred to the five reasons specified by Council for giving the DCO (see above at [17]). The fourth of the five reasons was that (reason 4): 4. Building works as approved were for alterations and additions to a dwelling house. As the dwelling house has now been demolished, the consent is now considered to be invalid as the dwelling no longer exists and therefore there is no development consent in place for any proposed building work to be carried out. 1. The applicant submitted that reason 4 has "no legal basis and cannot stand" for the following reasons: 1. As a matter of law, a development consent is considered valid until it is declared invalid. [6] There has been no declaration of invalidity. 2. The expression "alterations and additions" is not used in the EPA Act or the Burwood LEP at all. It is an expression that appears in a slightly different context in the Environmental Planning and Assessment Regulation 2021, "but notably appears on each occasion with the words 'comprising' or 'involving'". The expression is "not used to define development itself, but rather a development which involves alterations and additions". This tends to support the proposition that it is not itself a form of development, but rather the manner of carrying out a development. In Secretary, Department of Planning and Environment v Leda Manorstead Pty Ltd (No 4) (Leda Manorstead) Pepper J said at [76]: [7] 76. ...Leda's contentions ignore a fundamental tenant of planning law. That is, if a person obtains a planning approval that approval does not have to be acted upon, and if it is not acted upon, conditions attached to that approval are not operative. But if a holder of a planning approval acts upon the consent by carrying out the development the subject of the approval, the holder must comply with the approval and any conditions to which it is subject. Thus: (a) there is no statutory or other legal constrain upon the number of development applications that a person can make in respect of the same land. There can be more than one valid and operating consent in existence at any one time and it is possible to undertake works pursuant to more than one consent at a time (Waverley Council v CM Hairis Architects [2002] NSWLEC 180; (2002) 123 LGERA 100 at [30]); (b) where multiple development consents apply to the same parcel of land, all of the consents may operate unless the implementation of one consent is no longer a practical possibility due to development already having been undertaken pursuant to another consent (Liverpool City Council v Home Units Australia Pty Ltd [1973] 2 NSWLR 61 at 70 ; Drummoyne Municipal Council v Page [1973] 2 NSWLR 566 at 574 ; and Drummoyne Municipal Council v Lebnan [1974] HCA 34; (1974) 131 CLR 350 at [7]); ... 1. The applicant "appreciates" that the works the subject of the development consent "cannot stand on their own without the construction of the balance of the dwelling"; that is, "an occupation certificate is unlikely to be issued in respect of the [d]evelopment [c]onsent unless the existing building that fell outside the [d]evelopment [c]onsent was also erected (or some other building works that result in a liveable domicile)". To this end, there is "nothing stopping the [a]pplicant from obtaining a further consent to complete the dwelling or rebuild the parts of the building that were demolished as a result of the further works". This position was said to be entirely consistent with the principles enunciated by Pepper J in Leda Manorstead. That is, more than one consent can operate at one time. The "further consent will be the puzzle piece that completes the development consent". The applicant was in the process of preparing this application which is intended to be submitted in the coming week. 2. There is nothing in the terms of the development consent or the approved plans that "in any way supports the conclusion in [r]eason 4 of the DCO". 3. There is nothing stopping Council from issuing a restore works order to reconstruct the parts of the building that were demolished as a result of the further works. If a restore works order were issued that made specific reference to the as built drawings in the development consent, the applicant would "not be required to go through the expense and delay of submitting the further consent". 1. The applicant also submitted that on the stay application, the Court could order it to carry out works to rebuild the parts of the building demolished as part of the further works. In making such an order, the Court could rely on the propositions enunciated in Malass v Strathfield Municipal Council [8] and Alexander v Cambridge Credit. [9] Council's submissions 1. In its written submissions, Council did not address whether the applicant has an arguable case. At the hearing this morning, Mr Kirby for Council accepted that the applicant has an arguable case. 2. Mr Kirby accepted an infelicity in the expression of reason 4, however submitted that there was no difference between the parties in relation to the validity of the DCO. The balance of convenience, and the competing rights of the parties The applicant's submissions 1. At the hearing this morning, the applicant relied on the affidavits of Mr Georges and Mr Alexander as demonstrating that the balance of convenience weighs in favour of the Court granting the orders sought in the motion (as filed on 9 November 2023). As noted above at [9] above, the parties have since filed an amended notice of motion containing the agreed orders. 2. In its written submissions, the applicant submitted that matters tending in favour of granting the stay include the following: 1. to ensure safety; 2. to preserve the remaining fabric of the garage and front façade on the property; 3. to prevent stormwater run-off and pollution from leaving the property; 4. that the works would "inevitably be carried out" under the development consent; 5. to minimise the cost and delay associated with halting construction pending a final hearing and/or the granting of a further development consent Council or the Court. 1. In its written submissions, the applicant submitted that there "are no conceivable reasons as to how the [respondent] or the public interest would be adversely affected by the granting of a partial stay". The partial stay "would not offend" the planning regime in NSW "given the well established principles" set out by Pepper J in Leda Manorstead at [76]. Council's submissions 1. Council submitted in writing and orally this morning that it takes a "practical position" in that it consents to "whatever works are necessary for the better preservation of what remains of the buildings and to ensure the site's safety". I raised with counsel for Council this morning whether the Court could make an order in such terms. 2. Council did not object to the emergency works proposed in Order 1(b)(i) of the motion filed 9 November 2023, namely the bracing and preservation of the front façade on the property. It opposed the partial stay sought in Order 1(a) of the motion which "effectively, amount[ed] to a licence to continue the building project". 3. While Council did not oppose "any requisite emergency measures to temporarily shore up the garage roof", it submitted in writing that the applicant's proposed Order 1(b)(ii) of the motion filed 9 November 2023 went "beyond addressing the issue on an emergency basis and, rather, is tantamount to a continuation of the building project". 4. In relation to the other works the subject of the stay application, Council submitted that "the applicant's evidence and argument really boil down to the proposition that it would be inconvenient and commercially prejudicial to the applicant if its building project is delayed by the DCO". Stop work orders, Council submitted, by their very nature will "always be inconvenient and commercially prejudicial to the recipient". That was submitted to be an insufficient basis to order a stay. 5. Council submitted (in its written submissions) that development control orders are the primary means by which an enforcement authority may control development activity within its jurisdiction. The orders promote the objects of the EPA Act "by protecting the public interest in ensuring that development activity proceeds according to the Act and relevant consents". In the present case, where the land is situated in and contributes to the Malvern Hill heritage conservation area, the DCO promotes the following objects in s 1.3 of the EPA Act: 1. section 1.3(c) – the orderly development of land; 2. section 1.3(f) – management of built and cultural heritage; 3. section 1.3(g) – good design and amenity; 4. section 1.3(h) – proper construction of buildings; and 5. section 1.3(j) – increased opportunity for community participation. 1. The undertaking of building works without prior consent effectively removes the right of surrounding residents, neighbours, stakeholders and interested parties to make submissions through the assessment process under the EPA Act. 2. Council referred to the decision of Espinosa C in Ozaras v Inner West Council [10] which it said bore some similarity with the present case. There, an inspection by the council's compliance officers revealed that the entire roof and walls had been demolished in contravention of the relevant consent. As in the present case, the applicant there argued that demolition was necessary due to the instability of the former structure (at [12]). Likewise, here, Council submitted that a comparison between the authorised demolition and the present state of the land was "striking". 3. In relation to the applicant's intention to lodge a new development application, Council accepted that there would be the appropriate course, however "that process should not be pre-empted"; that the development should not be progressed until the applicant has a new consent; and that the Court should allow "whatever emergency measures are necessary or expedient and otherwise dismiss the motion with costs". 4. Otherwise, Mr Kirby submitted that the contravening demolition was sufficiently serious to set the parties "back to zero", "back to the drawing board" such as to require the "resetting of the consent". What was referred to by Mr Koikas for the applicant as the "additions and alterations consent" was said by Mr Kirby to be "predicated on an existing dwelling which sadly no longer exists". Consideration 1. I have determined in the exercise of my discretion that a stay of the DCO should not be granted other than in the agreed orders provided to my chambers this afternoon. 2. In Alexander v Cambridge Credit, the Court of Appeal (Kirby P, Hope JA, McHugh JA) said at 693-694 in relation to the principles governing stays inter alia: The Court has a discretion whether or not to grant the stay and, if so, as to the terms that would be fair. In the exercise of its discretion, the Court will weigh considerations such as the balance of convenience and the competing rights of the parties before it: Attorney-General v Emerson (1889) 24 QBD 56. Where there is a risk that if a stay is granted, the assets of the applicant will be disposed of, the Court may, in the exercise of its discretion, refuse to grant a stay: cf Clyne v Deputy Commissioner of Taxation (1982) 56 ALJR 857. Sometimes as a condition of the grant of a stay, where funds are available, a court will impose on the applicant the payment of the whole, or part, to the judgment creditor: Andrews v John Fairfax & Sons Ltd [1979] 2 NSWLR 184. 1. The Court of Appeal mentioned two further principles in relation to stays. The first is that where there is a risk that the appeal will prove abortive if the appellant succeeds and a stay is not granted, courts will normally exercise their discretion in favour of granting a stay. There is no evidence or submission that such a principle would be contravened here. 2. The second principle in relation to stays enunciated by the Court of Appeal in Alexander v Cambridge Credit is that: [A]although courts approaching applications for a stay will not generally speculate about the appellant's prospects of success, given that argument concerning the substance of the appeal is typically and necessarily attenuated, this does not prevent them considering the specific terms of a stay that will be appropriate fairly to adjust the interest of the parties, from making some preliminary assessment about whether the appellant has an arguable case. 1. In Malass v Strathfield Municipal Council, a decision more immediately relevant, the chief judge, Preston J, held at [51]-[52] that a partial stay of the stop work order, on conditions, as sought in the further amended notice of motion, was appropriate. His Honour said: 51. … 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. 52. 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. Whether the applicant has an arguable case 1. In CVA Apartments, Pepper J considered that the applicant's Class 1 appeal did "no more than seek revocation or variation of the Orders" in the absence of a Statement of Facts and Contentions. [11] That is also the case here. 2. There is also a question identified by the applicant in its written submissions as to "whether the [d]evelopment [c]onsent is capable of being acted upon or whether it is invalidated by the [f]urther [w]orks", and whether "the scope of the DCO is beyond power". The question of validity of a development consent or a development control order is not a matter within the jurisdiction of a commissioner in Class 1 proceedings. As Pepper J held in Blacktown City Council v Satmell Holdings Pty Ltd (Satmell Holdings), [12] a commissioner in Class 1 proceedings is not permitted to exercise judicial power. The position may be different where there is a challenge to validity in Class 1 proceedings heard by a judge, and not a commissioner of the Court. [13] 3. In any event, I am satisfied that the applicant has an arguable case as to whether the DCO goes beyond the "restriction" in Item 2, Part 1 of Schedule 5 to the EPA Act in relation to stop work orders in requiring the applicant to "stop all work immediately being carried out at the premise", rather than work being carried out in contravention of the EPA Act. 4. It may be that all the works which have been carried out in purported reliance on the development consent for "[a]lterations and additions to an existing dwelling, alterations to an existing garage and new swimming pool" will be found to have been carried out within or in contravention of the EPA Act. However, that is a question which did not arise to be determined on the hearing of the motion for a "partial" stay of the DCO today. Balance of convenience and the competing rights of the parties 1. Having determined that the applicant has an arguable case (not contested by Council), I turn to consider the balance of convenience and the competing rights of the parties. 2. I find, noting Council's written submissions (confirmed at the hearing this morning) that it takes a "practical position"; namely, that a partial stay should be granted to ensure works that are necessary for the better preservation of what remains of the dwelling on the property, and to ensure the safety of the site. In particular, a partial stay to permit bracing of what remains of the front façade and the erecting of a tarp to ensure its protection is sought in Order 1(b)(i) of the motion filed 9 November 2023 was not opposed by Council. Nor did Council oppose "any requisite emergency measures to temporarily shore up the garage roof". Again, I raised with Council this morning how such a position might be translated into an order capable of being made by the Court. 3. Subsequently, as noted at [9] above, the parties filed an amended notice of motion containing agreed orders in relation to works they agree ought be the subject of a partial stay of the DCO. 4. I do not consider that the balance of convenience favours a partial stay of the DCO in relation to the works sought in Order 1(a) and 1(b)(ii) of the motion filed 9 November 2023. As Council submitted in relation to the orders previously sought in the motion filed 9 November 2023, to do so would effectively amount to "a licence to continue the building project" and go "beyond addressing the issue on an emergency basis". 5. The extent of the demolition works to the dwelling and garage are shown clearly in the photographs produced in the draft statement of environmental effects prepared by the applicant in support of its s 4.55 modification application, exhibited on the motion filed 9 November 2023 and reproduced below: 1. I find, as submitted by Council, that the balance of convenience weighs in favour of protecting the public interest in ensuring that development activity proceeds in an orderly manner in accordance with the EPA Act and relevant consents. The public interest in ensuring that an enforcement authority may control development activity within its jurisdiction and that the assessment process under the EPA Act is followed outweighs any inconvenience or commercial prejudice to the applicant from a delay in the building project arising from the DCO. 2. I am satisfied that the balance of convenience and the competing rights of the parties is resolved in favour of making the agreed orders provided by the parties this afternoon. Orders 1. The Court makes the following orders: 1. The respondent's Development Control Order (Stop Works Order – Schedule 5 Part 1, Item 2) given to the applicant on 3 October 2023 pursuant to s 9.35(1)(b) of the Environmental Planning and Assessment Act 1979, in respect of 1 Lea Street, Croydon is stayed insofar as it concerns the following works: 1. timber cross bracing the façade of the front veranda and erecting a tarpaulin to ensure its preservation; and 2. carrying out brickwork as shown in drawing No DA2-08 but only to the extent of the area hatched in blue in the plan annexed to these reasons for decision and marked "A" and installing any further temporary support of the garage roof. 1. Each party is to pay its own costs. ********** ANNEXURE A Annexure A (4369979, pdf) Endnotes 1. [2020] NSWLEC 11 (Pepper J). 2. [2018] NSWLEC 175 (Pepper J). 3. Malass v Strathfield Municipal Council [2020] NSWLEC 168 (Malass v Strathfield Municipal Council) at [57] (Preston CJ); Alexander v Cambridge Credit Corporation Ltd (1985) 2 NSWLR 685 (Alexander v Cambridge Credit) at 694-5 (Kirby P, Hope and McHugh JJA). 4. Alexander v Cambridge Credit at 693-4 (Kirby P, Hope and McHugh JJA); CVA Apartments at [40]-[41] (Pepper J); Chen v Lym International [2009] NSWCA 121 at [12]-[15] (Beazley JA); Kalifair Pty Ltd v Digi-Tech (Australia) Ltd [2002] NSWCA 383; (2002) 55 NSWLR 737 at [17]-[20] (Handley, Sheller and Ipp JJA); Young v King (No 10) [2016] NSWLEC 70 at [24]-[25] (Sheahan J); Lawrence v Gunner [2015] NSWCA 322 at [10]-[15] (Gleeson JA). 5. Alexander v Cambridge Credit at 693 (Kirby P, Hope and McHugh JJA). 6. Swadling v Sutherland Shire Council (1994) 82 LGERA 431 at 436 (Talbot J). 7. [2019] NSWLEC 58 (Pepper J). 8. At [57] (Preston CJ). 9. At 694-5 (Kirby P, Hope and McHugh JJA). 10. [2020] NSWLEC 1573 (Espinosa C). 11. At [45]. 12. [2019] NSWLEC 93 at [44] (Pepper J). 13. Satmell Holdings at [46] (Pepper J). 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: 23 November 2023