Land and Environment Court New South Wales Medium Neutral Citation: Strathfield Municipal Council v Malass (No 4) [2024] NSWLEC 22 Hearing dates: 9, 10, 24 October 2023, 2 February 2024 Date of orders: 19 March 2024 Decision date: 19 March 2024 Jurisdiction: Class 4 Before: Pain J Decision: See below in [75]. Catchwords: CIVIL ENFORCEMENT – multiple breaches of Environmental Planning and Assessment Act 1979 (NSW) established in relation to building of dwelling – failure to comply with development consent and construction certificate – failure to comply with stop work order issued under the Environmental Planning and Assessment Act 1979 (NSW) – failure to comply with compliance order issued under the Environmental Planning and Assessment Act 1979 (NSW) – exercise of discretion to make declarations of breaches of Environmental Planning and Assessment Act 1979 (NSW) and consequential orders requiring demolition and construction in compliance with development consent and construction certificate – costs Legislation Cited: Environmental Planning and Assessment Act 1979 (NSW), ss 4.2, 4.55, 6.9, 9.34, 9.37, 9.46, Sch 5 Environmental Planning and Assessment Regulation 2021 (NSW), cll 36, 39 Land and Environment Court Rules 2007 (NSW), r 7.7 State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 (NSW), cl 3.2 Strathfield Local Environmental Plan 2012 (NSW) Cases Cited: ACR Trading Pty Ltd v Fat-Sel Pty Ltd (1987) 11 NSWLR 67 Great Lakes Council v Lani (2007) 158 LGERA 1; [2007] NSWLEC 681 Malass v Strathfield Municipal Council [2020] NSWLEC 168 Malass v Strathfield Municipal Council [2022] NSWLEC 131 Malass v Strathfield Municipal Council [2022] NSWLEC 1160 Strathfield Municipal Council v Malass [2022] NSWLEC 132 Tweed Shire Council v Cooke [2023] NSWLEC 73 Warringah Shire Council v Sedevcic (1987) 10 NSWLR 335 Texts Cited: Strathfield Municipal Council, Interim Flood Prone Lands Policy (7 December 1999) 2017 Aitken Flood Report Category: Principal judgment Parties: Strathfield Municipal Council (Applicant) Sarah Malass (Respondent) Representation: Counsel: G. Farland (Applicant) R. Malass (Agent for the Respondent) Solicitors: Bartier Perry (Applicant) Not applicable (Respondent) File Number(s): 2021/220120 JUDGMENT 1. Strathfield Municipal Council (the Council) has commenced civil enforcement proceedings and seeks various declarations and orders in relation to development it alleges has been unlawfully carried out at 27 Boden Avenue Strathfield (the Property). The Respondent Mrs Malass is the owner of the Property. The work is alleged to have been carried out in breach of a development consent issued by the Council on 22 November 2017 and a construction certificate issued on 30 July 2018 by a private certifier. The Council also alleges that the development control order issued under s 9.34 and Sch 5 of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) on 14 September 2020 directing the Respondent to cease all building work immediately (Stop Work Order) and the Compliance Order issued 10 March 2021 have not been complied with. The consequential orders sought seek to restrain the use of the Property and the carrying out of works at the Property unless they are compliant with the 2017 development consent, 2018 construction certificate and the Compliance Order. Mr Malass was granted leave at the hearing to appear as an agent for the Respondent in accordance with r 7.7 of Land and Environment Court Rules 2007 (NSW). 2. A substantial dwelling has been constructed on the Property and it is now occupied by the Respondent and her family. No occupation certificate under s 6.9 of the EPA Act has been issued to her according to the Council. This Class 4 proceeding was commenced on 2 August 2021 and was put on hold to enable the Respondent to pursue three related Class 1 appeal proceedings against (i) the Stop Work Order, (ii) the Council's refusal of development application DA2020.239 on 5 March 2021, and (iii) the Council's refusal of a building information certificate (BIC) application on 9 March 2021. The applications for development consent, BIC and revocation of the Stop Work Order were refused in Malass v Strathfield Municipal Council [2022] NSWLEC 1160 (Malass (Class 1)) delivered on 12 May 2022. 3. In this Class 4 proceeding numerous interlocutory judgments have been delivered including in relation to contempt proceedings for failing to comply with court orders to stop work. Summons commencing Class 4 proceeding 1. The Council seeks the following relief in the Summons dated 2 August 2021: 1. Declaration that, in breach of section 4.2 of the Environmental Planning and Assessment Act 1979 (EPA Act), the Respondent has carried out works: (a) not in accordance with Development Consent 2017/019 issued on 22 November 2017 for the demolition of existing structures and construction of a new two storey dwelling with basement car parking, in ground swimming pool and front fence; and (b) not in accordance with the plans that are the subject of Construction Certificate 2018/144 issued by Mohammad Abdullah Hussein of Prime Building Certifiers on 30 July 2018 on land being Lot 62 in Deposited Plan 15955 otherwise known as 27 Boden Avenue Strathfield (Subject Property). 2. Declaration that, in breach of section 9.37 of the EPA Act, the Respondent has failed to comply with the terms of an Order issued by the Applicant pursuant to section 9.34 of the EPA Act being a Stop Works Order in terms of an Order Number 2 in Part 1 of Schedule 5 of the EPA Act relating to the Subject Property (Stop Works Order). 3. Declaration that, in breach of section 9.37 of the EPA Act, the Respondent has failed to comply with the terms of an Order issued by the Applicant pursuant to section 9.34 of the EPA Act being a Compliance Order in the terms of an Order Number 11 under Part 1 of Schedule 5 of the EPA Act relating to the Subject Property (Compliance Order). 4. The Respondent by herself, her servants, tenants or agents, are restrained from using or carrying out works at the Subject Property except in accordance with: (a) Development Consent 2017/019, or (b) The plans that are subject of Construction Certificate 2018/144, or (c) Such other development consent as may be granted in future. 5. The Respondent by herself, her servants, tenants or agents are to comply with the terms of the Compliance Order within 60 days from the date of these orders. 6. The Respondent is to pay the Applicant's costs of the proceedings. 7. An order granting the parties liberty to apply on 2 days' notice for any further or other orders including orders for revoking, varying, supplementing or replacing these orders in whole or in part upon sufficient cause being shown. 8. Such further or other orders that the Court deems fit to make in the circumstances. 1. At issue is whether the Council has established the breaches of the EPA Act it alleges, and what declarations and orders ought be made if the breaches are established. Stop Work Order 1. The Stop Work Order issued by the Council on 14 September 2020 stated as follows: Stop Work Order The terms of the Stop Work Order are that Sarah Malass must: 1. Cease all development work immediately. Period for compliance with the Stop Work Order The Stop Work Order must be complied immediately. Reasons for the Stop Work Order The reasons for giving this Stop Work Order are: 1. Council received concerns from neighbours alleging potential unauthorised work on the premises at 27 Boden Avenue, Strathfield. 2. Onsite inspection conducted by Council's Officer on 14/09/2020 revealed extensive amount of unauthorised development conducted on site. Amongst others, below are known non-compliant works during inspection: o Non-compliant underground basement; extensive additional unauthorised basement floor has been constructed; o Non-complaint ground level layout; extensive unauthorised development work compared to approved plans; o Non-complaint first floor level layout; extensive unauthorised development work compared to approved plans; 3. A search of Council records confirmed development constructed on site differs significantly from what has been approved under DA2017/091. You may appeal to the Land and Environment Court against this Stop Work Order or a specified part of this Stop Work Order within 28 days after the service of this Stop Work Order upon you. It is an offence under section 9.37 of the Environmental Planning and Assessment Act 1979 not to comply with this Stop Work Order. The maximum penalty for such an offence is a Tier 1 monetary penalty which is $5,000,000.00 in the case of a corporation or $1,000,000.00 in the case of an individual. Also, if Stop Work Order is not complied with the Council may do all such things as are necessary or convenient to give effect to the terms of the Stop Work Order and recover the costs of so doing from the person required to comply with the Stop Work Order. … Compliance Order 1. The Compliance Order issued on 10 March 2021 stated as follows: Compliance Order The terms of the Compliance Order are that Sarah Malass must: 1. Conduct all necessary rectification works to ensure the development complies with the approved plans pursuant to Development Consent number DA2017/091 issued by Council on 22 November 2017 and Construction Certificate number 2018/144 issued by Accredited Certifier (Mohammad Abdullah Hussein BPB 2894) on 30 July 2018. 2. Do whatever is necessary so that any building or part of a building that has been unlawfully erected complies with Development Consent DA2017/091 issued by Council on 22 November 2017 and Construction Certificate number 2018/144 issued by Accredited Certifier (Mohammad Abdullah Hussein BPB 2894) on 30 July 2018 and the relevant applicable development standards. Period for compliance with the Compliance Order The Compliance Order must be complied within 60 days of the service of the order. … Environmental Planning and Assessment Act 1979 (NSW) 1. The EPA Act relevantly provides as follows: Part 4 Development assessment and consent Division 4.1 Carrying out of development—with consent, without consent and prohibited … 4.2 Development that needs consent (1) General If an environmental planning instrument provides that specified development may not be carried out except with development consent, a person must not carry the development out on land to which the provision applies unless— (a) such a consent has been obtained and is in force, and (b) the development is carried out in accordance with the consent and the instrument. (2) For the purposes of subsection (1), development consent may be obtained— (a) by the making of a determination by a consent authority to grant development consent, or (b) in the case of complying development, by the issue of a complying development certificate. (3), (4) (Repealed) (5) Complying development An environmental planning instrument may provide that development, or a class of development, that can be addressed by specified predetermined development standards is complying development. (6)–(9) (Repealed) … Part 9 Implementation and enforcement … Division 9.3 Development control orders 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). … 9.37 Failure to comply with order—offence (1) A person to whom a development control order is given or is taken to have been given must comply with the terms of the order. (2) It is a sufficient defence to a prosecution for an offence against this section if the defendant satisfies the court that the defendant was unaware of the fact that the matter in respect of which the offence arose was the subject of an order. … Division 9.5 Civil enforcement proceedings … 9.46 Orders of the Court (1) Where the Court is satisfied that a breach of this Act has been committed or that a breach of this Act will, unless restrained by order of the Court, be committed, it may make such order as it thinks fit to remedy or restrain the breach. (2) Without limiting the powers of the Court under subsection (1), an order made under that subsection may— (a) where the breach of this Act comprises a use of any building, work or land—restrain that use, (b) where the breach of this Act comprises the erection of a building or the carrying out of a work—require the demolition or removal of that building or work, or (c) where the breach of this Act has the effect of altering the condition or state of any building, work or land—require the reinstatement, so far as is practicable, of that building, work or land to the condition or state the building, work or land was in immediately before the breach was committed. (3) Where a breach of this Act would not have been committed but for the failure to obtain a consent under Part 4, the Court, upon application being made by the defendant, may— (a) adjourn the proceedings to enable a development application to be made under Part 4 to obtain that consent, and (b) in its discretion, by interlocutory order, restrain the continuance of the commission of the breach while the proceedings are adjourned. (4) The functions of the Court under this Division are in addition to and not in derogation from any other functions of the Court. (5) Nothing in this section affects the provisions of Division 3 of Part 3 of the Land and Environment Court Act 1979. Council's evidence 1. The Council read the following affidavits: 1. Affidavit of Mr Pope manager compliance and regulatory services dated 4 August 2021 (Pope 1) describes the initial inspection of the Property by Mr Pope following orders made on 12 July 2021 in the Class 1 proceeding granting Mr Pope and Mr Wong access to the Property for inspection on 15 July 2021 and permission to take photographs and videos of the Property (Access Orders). 2. Second affidavit of Mr Pope dated 15 December 2021 (Pope 2) describes the initial inspection of the Property by Mr Pope following the Access Orders, and a further inspection on 22 October 2021. 3. Affidavit of Mr Wong development compliance officer dated 14 December 2021 read in part identifies observations and photographs taken by Mr Wong during several inspections between 16 December 2020 and 9 December 2021 of the Property by him and other Council staff following the Stop Work Order issued on 14 September 2020. 4. Affidavit of Mr Galante regulatory officer – ranger dated 16 December 2021 identifies observations and photographs taken by Mr Galante during several inspections of the Property by him and other Council staff following the Stop Work Order, and a further inspection between 19 September 2021 and 14 November 2021. 5. Affidavit of Mr Alameddine regulatory officer – ranger dated 1 July 2022 identifies the officer's observations outside the Property on 17 June 2022 in the company of Mr Pope. 6. Affidavit of Mr Marks regulatory officer – ranger dated 7 July 2022 identifies inspections of the Property by him and other officers of the Council on 10 May, 13 June and 18 June 2022. 7. Second affidavit of Mr Galante dated 14 July 2022 describes inspections of the Property by him and other officers of the Council on 6, 9, 10 May and 2 June 2022. 8. Affidavit of Mr De Barros Teixeira Junior regulatory officer – ranger dated 21 July 2022 describes inspections of the Property by him and other officers of the Council on various dates between 12 January 2022 and 17 February 2022. 9. Third affidavit of Mr Pope dated 15 September 2022 (Pope 3) describes further inspections of the Property by Mr Pope on 25 August 2022 and 12 September 2022. 1. The Council tendered a bundle of documents (Ex A) and exhibits to Pope 1 (Ex D), Pope 2 (Ex E) and Pope 3 (Ex F). A title search dated 9 October 2023 identifying the Respondent as the owner of the Property (Ex G) and an extract of the Strathfield Local Environmental Plan 2012 (SLEP) height of buildings map (Ex H) were also tendered. 2. The Council tendered an email from Mr Porter manager of planning, place and development for the Council dated 9 October 2023 (Ex J). The email stated that no new applications had been received for the Property and set out the steps Mr Porter took to confirm whether an application had been submitted. 3. By notice of motion dated 11 December 2023, heard on 2 February 2024, the Council was granted leave to re-open its case to tender evidence as to the status of development application DA2023.132 uplifted on the NSW Planning Portal on behalf of the Respondent on 10 October 2023, about which Mr Malass informed the Court during the substantive hearing. Leave was given to tender in evidence two letters annexed to the supporting affidavit of Ms Lewis solicitor for the Council dated 11 December 2023, as follows: 1. a letter dated 16 October 2023 from the Council to Mr David Haskew, consultant town planner engaged by the Respondent, being a request for additional information, made pursuant to Environmental Planning and Assessment Regulation 2021 (NSW) cl 36(3), in relation to DA2023.132 lodged with the Council on behalf of the Respondent on 10 October 2023. 2. A letter dated 20 November 2023, from the Council to Mr David Haskew, consultant town planner engaged by the Respondent, providing notice that DA2023.132 has been returned on the NSW Planning Portal on the basis that, pursuant to Environmental Planning and Assessment Regulation 2021 cl 39(1), the development application does not contain the required information and documents, as the requested additional information was not provided. 1. During the hearing of the notice of motion on 2 February 2023 the Council provided a further update that another development application DA2024.1 had since been uplifted to the NSW Planning Portal on 2 January 2024 with additional information provided to support that DA. The Council formally accepted that a development application has now been lodged on 15 January 2024, as set out in Ms Lewis' affidavit dated 1 February 2024, read in the course of the hearing on 2 February 2023 and set out below in [24]. The Respondent or her agent did not appear at the hearing on 2 February 2023. Expert evidence of Council 1. The Council read the affidavit of Mr Grech town planner dated 1 May 2023 and tendered his statement of evidence dated 28 April 2023 (Ex B). 2. The Council read the affidavit of Mr Dewar registered engineer specialising in floodplain management dated 18 May 2023 and his statement of evidence dated 18 May 2023 (Ex C). Mr Grech's evidence 1. Mr Grech stated that the dwelling departed from the key metrics of the approved 2018 construction certificate as follows: … Basement • Relocation of lift and staircase location • Relocation of laundry in the approved CC from the ground floor to basement • Relocation of plant / services / cbus control room and external bathroom to basement • Additional spa room • Additional storage/playroom towards the front of the dwelling • Additional storage room under ramp containing server, inverter and Powerwall and including subfloor access to pipe room • Additional car parking space • Additional games room with associated kitchenette • Additional unfinished gym/storage room • Additional cool room • Additional storage under rear courtyard stairs and basement to ground floor stairs • Subfloor access underneath spa and pool area • Excavation within the side setbacks – possibly related to pool wall/foundation Ground Floor • Internal alterations to floor plan First Floor • Internal alterations to floor plan • Void area has been replaced with an additional bedroom External Areas • Overall building footprint (below and above ground) larger than approved • Overall building height and wall heights higher than approved • Non-compliance in height due to lift overrun and air conditioning units • Airconditioning units located on the roof • Additional skylights on the roof • Outdoor shelter provided adjacent to outdoor spa • Changed and substantially reduced landscape area • Elevated synthetic grass rear courtyard provided instead of soft landscaped area • Full face windows with privacy tint provided on northern façade • Relocation of windows on southern façade with privacy tint applied • Front deck provided to cover extended basement 1. Mr Grech stated that the development's inconsistency with the approved 2018 construction certificate plan and 2017 development consent, and applicable planning controls, has the following unacceptable impacts: • overlooking of adjoining residential properties • reduced visual amenity for surrounding properties due to both the size of the built form and minimal site landscaping • a larger bulkier building when viewed in the streetscape • landscape character that is incompatible with the existing and likely future streetscape • environmental impacts due to reduced landscape area and consequently reduced vegetation, and non-compliance with BASIX water and energy efficiency requirements 1. Mr Grech annexed numerous diagrams that highlighted the differences between the existing development and the approved 2018 construction certificate plans on all levels of the development and in the external area. 2. Mr Malass cross-examined Mr Grech. Asked whether he had calculated the height of the land at the Property in his statement of evidence, Mr Grech had not. Mr Grech was asked to look at a marked up copy of a site survey plan prepared by Urbanex dated 2 March 2017 (Ex 1). Asked how many spot levels on a diagram were below 19.4 relative level (RL) on a diagram, he identified that in the first third of the Property fronting the street there were no spot levels below 19.4 RL. In the second third of the Property he agreed that nearly all levels were marginally below 19.4 RL. In relation to cl 3.2 of the State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 (NSW), Mr Grech stated there was no provision for landscape area in the development standards for swimming pools. Mr Dewar's evidence 1. Mr Dewar opined that non-compliance with the 2018 construction certificate plans, 2017 development consent, development control plan, local environmental plan, the Council's Interim Flood Prone Lands Policy 1999 requirements and the 2017 Aitken Flood Report (the Council required the Respondent to comply with the recommendations of this flood report that was included in the Respondent's DA) will have the following effects at the Property and surrounds: • Likely affected the amount of runoff entering and exiting from the site, consequently this will likely have affected overland flood flows and flood levels external to the site. • Reduced the area of permeable ground within the site which will reduce the volume of rainfall permeating into the ground. Consequently there will likely be an increase in the volume of runoff and peak flow exiting from the site and thus will likely increase the peak flood levels external to the site. • Reduced the temporary floodplain storage capacity within the site and thus likely increased the peak flow exiting the site and consequently increased the peak flood levels external to the site. Council's chronology 1. The Council provided the following chronology [additional events inserted]: Date Event 22 November 2017 Notice of determination (approval) of development application no. DA2017/091 granted by Strathfield Council. 30 July 2018 Construction certificate no. 2018/144, issued by Prime Building Certifiers. 14 September 2020 Development Control Order pursuant to Section 9.34 and Schedule 5 of the Environmental Planning and Assessment Act 1979 (Stop Work Order). [9 October 2020 Class 1 Application filed.] 27 November 2020 Orders made by Chief Justice Preston in Class 1 Proceedings 2020/291053. [Malass v Strathfield Municipal Council [2020] NSWLEC 168] 11 December 2020 Building information certificate application no. 2020/022, prepared by Planning Lab. 13 January 2021 Respondent lodges development application no. 2020/239. 5 March 2021 Notice of determination (refusal) of development application no. 2020/239. 9 March 2021 Notice of determination (refusal) of building information certificate application no. 2020/022. 10 March 2021 Development Control Order pursuant to Section 9.34 and Schedule 5 of the Environmental Planning and Assessment Act 1979 (Compliance Order). 26 June 2021 Council officer Andrew Francesco Galante inspection of the Property observing a 'Hills Bark Blower' truck parked outside the subject property with a line pump connected to the truck running towards the rear yard. Mr Galante spoke with the Respondent's Father-in-Law who said words to the effect of 'We are taking blue metal and soil to the back of the property using the truck parked out on the road with the line pump provided'. Court orders in Class 1 Proceedings 2020/291053: 12 July 2021 1. Pursuant to r 23.8 of the UCPR, order that Bradley Pope and Terrence Wong from the Council be granted access to 27 Boden Ave, Strathfield, for the purposes of an inspection of all areas of those premises. Such inspection to take place at 12pm on 15/7/2021. 2. The persons granted access in order 1 above are permitted to take photographs and video the premises. 13 July 2021 Court varies orders made 12 July 2021 to allow Chris Nascimento to attend inspection of the Property, in place of Terrence Wong. 15 July 2021 Council officers Mr Bradley Ian Pope and Mr Chris Nascimento conduct inspection of property, accompanied by the Respondent's husband Mr Rabi Malass, observing the status of works completed. 2 August 2021 Summons commencing Class 4 Proceedings 2021/00220120 in Land and Environment Court. 4 August 2021 Affidavit of Bradley Ian Pope. 5 August 2021 Council files a Notice of Motion in Class 4 Proceedings 2021/00220120 seeking interlocutory injunction requiring the Respondent to immediately cease all works. Justice Pain makes orders in Class 4 Proceedings 2021/00220120, including: 11 August 2021 1. The Respondent immediately cease all works at Lot 62 in DP 15955 otherwise known as 27 Boden Street Strathfield and for the injunction to remain until finalisation of these proceedings. 2. These proceedings are returnable before the Registrar within seven days after determination of the Class 1 Proceedings 2020/00291053, 2021/00069569 and 2021/00069575. 19 September 2021 Council officer Andrew Francesco Galante conducts inspection of the Property observing a skip bin in the front yard filled with building materials. Mr Galante spoke with a neighbouring resident who said words to the effect of 'There were approximately 10 people on site yesterday including the owner and family'. 22 September 2021 Council files a Notice of Motion in the Class 4 Proceedings 2021/00220120 seeking a further access order to monitor compliance with the Stop Work Order and Orders made 11 August 2021. 24 September 2021 Council officer Andrew Francesco Galante inspection of the Property observing a male, who appeared to be a contractor, exiting the front door with two buckets filled with construction materials. 29 September 2021 Council office Andrew Francesco Galante inspection of the Property observing the Respondent's husband, Mr Malass, entering and exiting the dwelling with a young male who appeared to be a contractor. 11 October 2021 Council office Andrew Francesco Galante inspection of the Property observing a male contractor exit the Property with an extension cord, and Mr Malass exiting the Property. Justice Pain makes order in Class 4 Proceedings 2021/00220120: 1. Mr Bradley Pope and Mr Brett Daintry are granted access to 27 Boden Avenue Strathfield on 22 October 2021 for the purposes of an inspection to all areas of the Property. 19 October 2021 2. The persons granted access in Order 1 have permission to take videos and photographs during the inspection. 3. The Respondent must pay the Council's costs of the Notice of Motion dated 22 September 2021. [Strathfield Municipal Council v Malass [2021] NSWLEC 112] 22 October 2021 Council officer Mr Bradley Ian Pope and town planner Mr Brett Daintry conduct inspection of property, observing the status of works completed. 10 November 2021 Council officer Andrew Francesco Galante conducts inspection of the Property observing at least three men who appeared to be contractors. Mr Galante had a conversation with a male driver who identified himself as Ayman who said words to the effect of 'I am here to help Rabi who has received approval from council to conduct electrical works to get the lift up and running'. 14 November 2021 Council officer Andrew Francesco Galante conducts inspection of the Property observing a male who appeared to be a contractor, and Mr Malass with two females and a young girl. 15 December 2021 Affidavit of Bradley Ian Pope. [16 December 2021 Council files notices of motion for contempt in Class 1 and Class 4 proceedings.] 16 December 2021 Affidavit of Andrew Francesco Galante. 12 January 2022 Council officers Almir De Barros Teixeira Junior and Mohammed Sarker conduct inspection of the Property observing a number of vans parked on the street, one marked 'FSP Solutions' and another marked 'Rabs Plumbing', as well as workers who appeared to be involved primarily in plumbing works. 3 February 2022 Council officers Almir De Barros Teixeira Junior and Mohammed Sarker conduct inspection of the Property observing a worker undertaking construction activities such as measuring and cutting lengths of plywood. 7 February 2022 Council officers Almir De Barros Teixeira Junior and Mohammed Sarker conduct inspection of the Property observing five workers on the Property, three appeared to be sitting and eating, one appeared to be cutting materials in the driveway. 8 February 2022 Council officers Almir De Barros Teixeira Junior and Mohammed Sarker conduct inspection of the Property observing one worker on the Property. 17 February 2022 Council officers Almir De Barros Teixeira Junior and Mohammed Sarker conduct inspection of the Property observing three workers at the rear of the Property, cutting materials evidenced by loud grinding noises, and one worker bent over a power tool. 6 May 2022 Council officers Andrew Francesco Galante and Mr Mazhar Narvel conduct inspection of the Property observing a medium rigid truck and two male tradesmen. 9 May 2022 Council officers Andrew Francesco Galante and Mr Mazhar Narvel conduct inspection of the Property observing a medium rigid truck, a white Toyota Hilux utility vehicle and a male tradesman. 10 May 2022 Council officers Grant Marks, Mr Mazhar Narvel and Mr Andrew Galante conduct inspection of the Property observing one male tradesman. 12 May 2022 Judgment handed down by Senior Commissioner Dixon in Malass v Strathfield Municipal Council [2022] NSWLEC 1160 (proceedings 2020/00291053, 2021/00069569 and 2021/00069575), refusing Applications for Development Consent, Building Information Certificate and revocation of Stop Work Order. 2 June 2022 Council officers Andrew Francesco Galante and Mr Mazhar Narvel conduct inspection of the Property observing one male utilising a blower in the front of the Property and footpath. 13 June 2022 Council officers Grant Marks and Mr Chen Guo conduct inspection of the Property observing the front door and garage door of the building at the Property were open, one light rigid truck, one white Toyota Hiace and one white Toyota Hilux. 17 June 2022 Council officers Mr Bradley Pope and Rafaat Alameddine conduct inspection of the Property. 18 June 2022 Council officers Grant Marks and Mr Mohammad Sarker conduct inspection of the Property observing all construction fencing at the Property moved to side and on the verge in front of the Property, front door and garage door of the building on the Property open, a small excavator being operating [sic] by a man on the footpath and verge in front of the Property, and another man using a shovel on the footpath. 1 July 2022 Affidavit of Rafaat Alameddine. 7 July 2022 Affidavit of David Grant Marks. 14 July 2022 Affidavit of Andrew Francesco Galante. 21 July 2022 Affidavit of Almir De Barros Teixeira Junior. 25 August 2022 Council officer Bradley Ian Pope and Council solicitor Mr Adrian Guy conduct inspection of the Property, observing the status of works conducted. Justice Pepper makes orders in Class 1 and Class 4 Contempt Proceedings including: 8 September 2022 1. Council is granted access to the Property for the purpose of conducting an inspection of all areas of that property including taking photographs of all areas including all bedrooms. 2. Such inspection is to take place on 12 September 2022. [Malass v Strathfield Municipal Council [2022] NSWLEC 116] 12 September 2022 Council officers Bradley Ian Pope and Mr Terrence Wong conduct inspection of the Property, observing the status of works conducted. 15 September 2022 Affidavit of Bradley Ian Pope. 2 November 2022 Judgment handed down by Justice Robson in Strathfield Municipal Council v Malass [2022] NSWLEC 132 (Class 4 Contempt Proceedings). 2 November 2022 Judgment handed down by Justice Robson in Malass v Strathfield Municipal Council [2022] NSWLEC 131 (Class 1 Contempt Proceedings). 1. Although not agreed, the chronology was supported by the extensive affidavits of the Council identified in [9] above. 2. To this chronology should be added the substantive hearing on 9, 10, 24 October 2023 of the Class 4 proceeding and the Council's notice of motion dated 11 December 2023 heard ex parte on 2 February 2024 seeking leave to re-open the Council's case to tender evidence, identified above in [12]. 3. During the notice of motion hearing on 2 February 2024 the Council read the affidavit of Ms Lewis Council's solicitor dated 1 February 2024. Ms Lewis' affidavit identifies her instructions that on 2 January 2024 Mr David Haskew town planner submitted DA2024.1 via the NSW Planning Portal for the development of the Property with the consent of the owner. DA2024.1 seeks consent for 'Partial demolition of the existing dwelling as constructed and alterations responsive to previous litigation including associated landscaping to the site.' On 15 January 2024 the Council formally accepted the lodgement of DA2024.1. As at 31 January 2024 the Council has not determined DA2024.1. On 2 January 2024, Mr Malass submitted to the Council an application for a BIC for unauthorised or illegal works on the subject land with the consent of the Respondent. As at 31 January 2024 the Council has not determined this BIC. Council's statement of facts 1. The Council provided the following statement of facts based on the evidence (references to evidence omitted): … A. AS-BUILT DEVELOPMENT BREACHES OF RELEVANT PLANNING CONTROLS Building Height 2. Pursuant to clause 4.3 Strathfield Local Environmental Plan 2012 (SLEP 2012) a maximum building height of 9.5m applies to the Site. 3. The lift overrun exceeds the maximum building height by 80mm. 4. The lift overrun is an increase of 830mm above the approved height in the development consent. 5. The air conditioning units exceeds the maximum building height by 880mm. 6. The relocation of the air conditioning units from ground level to the roof is a variation from the approved plans. 7. The bank of air conditioning units located on the roof of the building are more than 1.8m above ground level, therefore not complying development under s 2.6(1)(a) and (d) of the State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 (Codes SEPP). 8. Pursuant to clause 4.2.2 Strathfield Consolidated Development Control Plan 2005 (SDCP 2005) a maximum wall height of 7.8m applies to flat roofed dwellings. 9. The development as built reaches a maximum wall height of up to 9.11m, a variation of 705mm above the approved plans. 10. Pursuant to clause 4.2.2 SDCP 2005 a maximum height from existing ground level to the underside of the uppermost ceiling of 7.2m applies to the Site. 11. The development as built exceeds this maximum height from existing ground level to underside of uppermost ceiling by 1.07m. Wall Height 12. Pursuant to clause 4.2.2 SDCP 2005 a maximum wall height of 7.8m applies to all flat roofed dwellings. 13. The development as built reaches a maximum wall height of 9.11m. 14. The development as built has an increase of 705mm above the approved plans. 15. The building exceeds the maximum roof height for a flat roofed dwelling and maximum height to underside of ceiling. 16. The wall enclosing the southern side of the patio at the rear of the Site is higher than 1.4m above the floor level, therefore not complying development pursuant to clause 2.70(a) of the Codes SEPP. Gross Floor Area 17. Pursuant to clause 4.4C SLEP 2012 a floor space ratio of 0.575:1 applies to the Site. 18. The development as built FSR is 0.86:1, being an exceedance of 52% or 225.3m2. 19. The development as built increases the GFA of the approved plans of 450.9m2 to 660.6m2. 20. The void area on the first floor has been replaced with an additional bedroom in variation from the approved plans. Basement 21. Pursuant to clause 8.2.3 SDCP 2005 the maximum area of a basement shall be limited to and contained within the footprint of the dwelling at ground level. 22. The development as built exceeds beyond the footprint of the dwelling at ground level in the front and the rear. 23. Pursuant to clause 8.2.3 SDCP 2005 the maximum height of the basement (which is not a basement, but the lower ground floor) above natural ground level measured to the floor level of the storey immediately above is to be less than 1m. 24. The basement extends to 1.87m above natural ground level to the finished floor level of the ground floor. 25. The basement extends over 1m beyond the natural ground level and does not meet the definition of 'basement' in accordance with the SLEP 2012. It is correctly classified as a 'storey'. 26. The basement vertical height extension varies the ground floor level from RL 20.40 in the approved plans to RL 20.92. 27. The relocation of the laundry, plant/services/cbus control room and external bathroom to the basement is a variation from the approved plans. 28. The additional spa room, car parking space, games room with associated kitchenette, unfinished gym/storage room and cool room is a variation from the approved plans. Bulk, Scale and Privacy 29. The development exceeds the building height, as a result of the lower ground floor being built above ground. 30. The increase in bulk of the dwelling exceeds the intended envelope for a flat roof dwelling envisaged by the controls in clause 2.2.2 of SDCP 2005. Setbacks 31. Pursuant to clause 4.2.3.1 SDCP 2005 a street setback of 9m applies to the Site. 32. The first-floor feature window framework exceeds the minimum front setback standard by 0.75m. 33. The development as built has a street setback of 10.75m to the ground floor, and range of 8.25m-9.36m to the upper floor, a variation of the approved plans 8.5m minimum street setback. 34. Pursuant to clause 4.2.3.2 SDCP 2005 a side setback of 3.048m (combined) applies to the Site. 35. The development as built has a side setback of 3.0m at ground level and 2.7m at first floor level, a shortfall of 0.048m at ground and 0.348m at first floor level. 36. The development as built decreases the southern boundary setback to the main 2 storey wall of the approved plans of 2.4m to 1.5m. 37. The development as built decreases the front boundary setback to the basement level of the approved plans to approximately 6.8m at basement level, 5.6m at ground level, and 0.9m to the first floor/roof level. 38. Pursuant to clause 4.2.3.2 SDCP 2005 a rear setback of 6m applies to the Site. 39. Subject to meeting minimum landscaped area, ancillary facilities may be located in the rear setback. 40. The development features an open shelter construction behind the pool, setback 0.75m from the rear boundary. This is not permissible as the minimum landscaped area in the rear setback is not achieved. 41. The approved plans approved a variation of 1.55m to 1 storey pavilion and 10m to first floor, the development as built generally aligns with the approved plans varied rear setbacks, excluding the additional outdoor shelter. 42. The patio at the rear of the Site exceeds the maximum area standard of 25m2 and is therefore not exempt development pursuant to clause 2.12 of the Codes SEPP. Landscaping 43. Pursuant to clause 5.2.1 SDCP 2005 a minimum 43% of the Site being 329m2 of landscape area is required. 44. The development provides 35m2 of landscape area being 4.2% of the Site. 45. The development as built decreases the landscape area of the approved plans of 338.49m2 to 31.12m2. 46. Pursuant to clause 5.2.1 SDCP 2005 at least 50% of the minimum landscaped area should be located behind the building line to the rear boundary. 47. The development does not meet this requirement. 48. Pursuant to clause 5.2.1 SDCP 2005 at least 50% of the front yard should be maintained as deep soil soft landscaping which requires 31.12m2 of deep soil landscape in the front yard. 49. The development does not meet this requirement. 50. Pursuant to clause 5.2.1 SDCP 2005 planting areas shall include low-lying shrubs and canopy trees in locations to soften the built form. 51. The development front yard landscape contains a variety of species that are not consistent with Council's planting schedule and no canopy tree is provided. 52. Condition 5 of the Conditions of Consent to the Approved Development Application requires evergreen shrubs with a minimum 5 litre container size achieving a minimum mature height of 3m to be planted along side and rear boundaries to provide suitable privacy screening and landscaped amenity. 53. Condition 13 of the Conditions of Consent to the Approved Development Application requires a 1m landscape strip to be planted with a continuous row of evergreen shrubs capable of achieving a minimum mature height of 3m between the swimming pool and adjacent common boundaries. 54. Planting to achieve these outcomes has not been provided. Sunlight Access 55. Clause 6.2.1 SDCP 2005 requires the principle private open space of any adjoining premises receive solar access for a minimum period of 3 hours between 9:00AM and 3:00PM at the winter solstice (June 21). 56. Shadow diagrams have not been made available for the development as built, however it is expected solar access impacts to the dwelling on the south of the Site on account of the exceeded wall height and non-compliances with setback controls. BASIX 57. A BASIX Certificate is required to accompany a Development Application. 58. A BASIX Certificate was provided with the Approved Development Application. 59. That Certificate does not relate to the development as-built. 60. The development as built has not complied with planting of indigenous or low water use species of vegetation throughout 100m2 of the Site. Flood Management 61. At the time the Development Application Consent was granted, the Site was subject to the provisions of clause 6.3 a non-mandatory flood planning model clause. The SLEP 2012 was amended to include clause 5.21 Flood Planning which requires a consent authority to be satisfied that the development is compatible with the flood hazard or behaviour and is not likely to detrimentally affect other development or properties. 62. Pursuant to clause 10.2.1 SDCP 2005 flood affected properties must comply with Council's Interim Flood Prone Lands Policy (Flood Prone Areas and Through Site Drainage). 63. The Site is affected by mainstream and overland flow flooding. The Site is within the probable maximum flood and affected by overland flow flooding and possible mainstream flooding in a 1 in 100 year flood event (Cooks River & Coxs Flood Study, WMA Water for Council, October 2010). 64. The Approved Development Application Conditions of Consent included: a. The BBQ pavilion, pool pump rooms and adjacent bathroom areas are to be suspended a minimum of 500mm above the 1% AEP flood level; b. Openings are to be provided in the BBQ pavilion area walls to allow for floodwaters to flow below the structure; c. New fencing is to be contributed in a manner which does not affect the flow of overland flows in order to reduce risk of flood affectation on surrounding land; and d. All new fencing shall be of open type form from ground level to the 1% SEP flood level to not impede the flow of overland flows. 65. The development as built does not provide openings in the BBQ pavilion area and pump room area to allow for floodwaters to flow beneath. 66. The side and rear boundary fencing is solid with no openings to allow the flow of overland flows. 67. The lower part of the boundary fences of the Site up to the 1 in 100 year flood level are not permeable. Occupation Certificate 68. Condition 58 of the Conditions of Consent to the Approved Development Application states the building must not be occupied or used until a Final Occupation Certificate or Interim Occupation Certificate has been issued. 69. No certificates listed above has been issued. 70. The Respondent is occupying the building on the Site. B. IMPACT OF BREACHES B.1. Amenity impacts on neighbouring properties 71. The impacts on the amenity of neighbouring properties relates to the visual aspects due to the size of the building, loss of landscape area and potential overlooking and overshadowing. Building Height 72. The overall height of the building exceeds the approved height and maximum height standard in the SLEP 2012 and SDCP 2005. 73. The lift overrun is relatively small and set in from the edges of the roof so has minimal visual effect. No additional overshading would arise from the lift overrun height exceedance. The height exceedances from the lift overrun does not result in unacceptable impacts. 74. The air conditioning units on the roof of the building are visible from Boden Avenue. The units do not comply with the building height standard and are not exempt development under the Codes SEPP. The air conditions units may also have noise impacts due to their elevated location. 75. The increase in the building height is largely a result of the increase in basement height which extends over 1m beyond the natural ground level and extends to 1.87m above natural ground level to the finished floor level of the ground floor. Gross Floor Area 76. The non-compliant FSR of 0.86:1 significantly exceeds the standard of 0.575:1. An exceedance of 52% or 225.3m2. 77. The purpose of FSR is to control the number of occupants of a development on a site by limiting the useable floorspace. FSR also limits the size of the building for amenity reasons. 78. While most of the additional FSR is located in the basement level partly below ground level the protrusion of this level more than 1m above ground contributes to the overall bulk and scale of the development as built. Basement 79. The non-compliant FSR is primarily a result of the horizontal and vertical extensions to the basement. 80. The vertical extension of the basement has resulted in the basement protruding up to 1.87m above existing ground level, with consequential impacts on the amenity of neighbours. Bulk, Scale and Privacy 81. The increased floor space and overall size of the built form on the Site results in increased impacts on the amenity of neighbouring properties and the streetscape and character of the area. 82. The protrusion of the basement level more than 1m above ground level contributes to the overall bulk of the building. 83. The development as-built exceeds the size of the approved building, exceeds a compliant building envelope and appears bulkier in the streetscape. 84. The size of the building when viewed from adjoining neighbours on both sides will have a visual impact exceeding what it would have been if built as per the CC, and it is beyond that which is permitted based on controls. There are no mitigating factors such as slope or screen vegetation to reduce the impact. 85. The ground and first floor levels are 520mm and 705mm higher than the approved development, respectively. 86. The increase in floor level heights exacerbates the potential for overlooking. 87. The Approved Development Application required landscape screening as a condition of consent to address potential overlooking from windows. The deviance in height makes this privacy mitigation unachievable. 88. Privacy impacts can be mitigated with obscure glazing to southern windows with minimal loss to internal amenity, but to the northern side of the dwelling such measures result in poor design outcomes. 89. While some overlooking could have occurred on the basis of the Approved Development Application, the increase in floor levels of the development as built and lack of screen planting on boundaries exacerbates overlooking. Overlooking from the rear patio area to adjoining properties is possible, particularly to the north and west. Setbacks 90. The impact of the non-compliance with the SDCP 2005 for side setback controls are exacerbated when considered cumulatively with the non-compliance in wall height, FSR and landscaped area. Landscaping 91. The Approved Development Application required 338.49m2 of landscape area, a minimum of 329m2 is required by the SDCP 2005. Only 32.12m2 is provided. 92. The Approved Development Application required planting screen vegetation on the boundaries to mitigate visual impacts. 93. Alternate means of providing landscaping such as raised gardens beds assist to some extent, but the effect of non-compliance is the reduction of available deep soil planting opportunities for screen vegetation and canopy trees to mitigate visual impacts. B.2. Impact on streetscape and character of the area Bulk, Scale and Privacy 94. The exceedances in the size of the dwelling are visual from the public domain. The increased wall heights, together with non-compliant setbacks, increases the overall size of the building. 95. The size of the building is disproportionate to the size of the Site. 96. The dwelling appears as an oversized building in the context of the streetscape. Landscaping 97. The landscape front yard of the development impacts on the streetscape and character of the area. 98. The encroachment of the basement into the front setback area has reduced the landscaping opportunities. 99. The appearance of the side setback areas are visible from the public domain. Due to the extent of the basement and reduced side setbacks, no materially relevant landscaping along these boundaries is possible. 100. The inadequate provision of landscape area results in unacceptable visual impacts. B.3. Impact on the environment Landscaping 101. The reduced landscape area has an impact on general environmental considerations such as urban heat island effects, provision of urban habitats for birds and other wildlife. 102. The limited area of deep soft soil constrains any planting of trees and shrubs on the Site. 103. The reduced permeable surfaces limit the absorption of stormwater. BASIX 104. Non-compliance with the BASIX Certificate means energy and water efficiency targets are not met. Flood Management 105. The non-compliance with flood risk management requirements results in the development as constructed unacceptably blocks the flow of floodwaters due to the absence of permeable fences and the design of the BBQ pavilion area. 106. The potential impacts that could arise would be a change to flood behaviour and depths, potentially creating additional flood impacts on adjoining properties and exposure to greater flood risks on the Site. 1. Mr Malass did not address the statement of facts. The statement of facts was supported by extensive affidavits of the Council identified in [9] above and the expert evidence summarised above in [14]-[20]. Based on the Respondent's written submissions set out in full below the floor space ratio (FSR) controls applicable to the dwelling as built appear to be in dispute. This will be referred to in my consideration. Respondent's evidence 1. Mr Malass was allowed to read in part his affidavit dated 9 October 2023, the first day of the substantive hearing. Only part of the affidavit was allowed to be read given it was not served on the Council and effectively no notice of it was given to the Council. It provided as follows: 1 In relation to the commencement of works in the first instance, I engaged an Architect named Justin Lo of Studio JLA. Mr Lo was a registered architect. l paid Mr Lo $170,000 to prepare amended plans for a s.4.55 Modification Application. That fee also included Council's lodgement fee. 2 Mr Lo advised me in February 2020 that the s.455 plans were complete. Mr Lo invoiced me for the plans and the Council fees and said that he would lodge the s4.55 modification application with Strathfield Council. 3 In March 2020, Sydney went into Covid 19 Lockdown. The result of the lockdowns was that Council were uncontactable. I attempted to telephone Council numerous times, sometimes daily between the months of March to September 2020. I was not successful in any of those contact attempts. 4 Mr Lo assured me that the proposed modification was minor and he did not expect that Council would have any objection to my proposal. 5 Subsequent to Lockdown, the staff of my plumbing business were unable to work. That was because my plumbing business was carrying out work in other areas of Sydney which were still in lockdown. 6 I remained unable to contact Council, however I asked Mr Lo about whether starting work on the site prior to the modification being approved would be a possibility in order to provide work for my employees. 7 Mr Lo told me that I should wait for approval, but that in the circumstances, if Council did object, I might need to lodge a Building Information Certificate. 8 When Council issued the Stop Work Order in 2020 my first question to the Council was whether my s4.55 Modification was nearly ready to be approved. I was surprised to learn that Council had not received a s4.55 Modification. 9 This was the first time that I became aware that Mr Lo had been untruthful when he told me that my s4.55 Modification had been lodged. A friend of mine name[d] Sam Ashour also used Mr Lo as an architect. Mr Ashour had suffered the same experience as me in his dealings with Mr Lo. 10 Mr Lo's architectural practice is now in voluntary administration. … 18 In relation to the Council's proposed Demolition Order, I have engaged architects Graphio AM to prepare Building Information Certificate plan as well as development application plans which propose partial demolition works. I have also engaged HDC Planning to prepare a Statement of Environmental Effects and clause 4.6 clause 4.6 [sic] request for variation to the floor space ratio development standard to accompany those applications. 19 Both practices are nearing completion of their work. l had hoped that the applications could be lodged today. However, some additional plan amendments were needed over the weekend. I am now advised that both applications will be lodged tomorrow. 1. Mr Malass tendered a marked up copy of a site survey plan prepared by Urbanex dated 2 March 2017 (Ex 1). A pencil line drawn by Mr Malass on the site survey plan purports to show the difference between a third of the Property with spot levels above 19.4 RL and approximately two thirds of the land with spot levels below 19.4 RL. Mr Malass cross-examined Mr Grech about this, see above in [19]. Council's submissions Breaches established 1. The orders sought by the Summons flow from breaches of the EPA Act as identified by Mr Grech above in [16]. Development has not been carried out in accordance with the 2017 development consent or the 2018 construction certificate, breaching s 4.2 of the EPA Act. The breaches identified by Mr Grech, individually and collectively, are significant and have adverse impacts. 2. The Respondent did not comply with the Stop Work Order issued on 14 September 2020 as made evident by the evidence of various Council officers. By not complying with the Stop Work Order, the Respondent is in breach of s 9.37 of the EPA Act. 3. The Property has not been restored to conform with the 2017 development consent and 2018 construction certificate, as Mr Grech and Mr Dewar have observed. The evidence of Mr Pope is the Property is occupied. No occupation certificate has been issued. The address of the Property has been provided as the residential address of the Respondent. 4. The adverse impacts identified by Mr Grech above in [17] and Mr Dewar above in [20] justify the orders the Council seeks. There is no evidence to contradict the opinions of Mr Grech and Mr Dewar. Discretion 1. The Court has discretion as to whether to make the orders sought in the Summons under s 9.46 of the EPA Act: Warringah Shire Council v Sedevcic (1987) 10 NSWLR 335 (Sedevcic). There is no reason to defer making the orders sought. Unlike in Tweed Shire Council v Cooke [2023] NSWLEC 73 (Cooke) where the making of orders was delayed pending the determination of Class 1 appeals, the Class 1 appeals related to this proceeding where the Respondent attempted to regularise the unauthorised works have been determined and refused. 2. The Council has prosecuted the proceeding promptly (Sedevcic at 339F). Any perceived delay is attributable to orders that the Class 1 proceeding be determined before the Class 4 proceeding and the contempt proceeding be determined before the civil enforcement proceeding. 3. There is nothing technical about the breaches (Sedevcic at 339E). They are obvious, and have serious adverse impacts, as the evidence of Mr Grech demonstrates. 4. Nor is there anything beneficial about the breaches (Sedevcic at 339F). In each case they are visible and intrusive, causing adverse visual and privacy impacts on neighbours. The landscaping and flooding impacts result directly from the larger and unauthorised basement work. 5. The declarations and orders will demonstrate the importance of the enforcement of 'the public duty imposed' by the EPA Act, and 'the public interest which exists in the orderly development and use of the environment' (Sedevcic at 337G) by ensuring that the Respondent complies with 2017 development consent, the 2018 construction certificate and the Compliance Order issued 10 March 2021. Further, the 'private advantage' obtained by the Respondent by ignoring the Stop Work Order, as well as the orders made on 11 August 2021 to cease all work at the Property, will be reversed and will ensure 'equal justice' will be done (Sedevcic at 340A-B) and be seen to be done (Sedevcic at 340C). 6. The unauthorised development is static, and the non-compliance with the 2017 development consent and the 2018 construction certificate is readily apparent (Sedevcic at 340F). However, that development is also being used, and occupied, as noted above, so there is also a proper basis to prevent that private advantage being taken by the Respondent in a manner not able to be enjoyed by those who have complied with the law (Sedevcic at 340B, 340G). 7. There is also no evidence to soften the approach to be taken here (Sedevcic at 341A). The Respondent has adduced no evidence in opposition to the Summons. Further, her attempts to ameliorate the impacts by lodging development application DA2020.239 on 13 January 2021 have been rejected by the Court already, in the unsuccessful Class 1 proceeding. 8. The orders in the nature of injunctions, Orders 4 and 5 of the Summons, are an appropriate and just response to the unauthorised work. If the Council is not able to assure neighbours and others who adhere to the EPA Act, and its relevant planning controls, that those controls are meaningful and important, and able to be enforced by action, confidence in that orderly system will necessarily be eroded. 9. In reply submissions filed 19 October 2023, the matters raised by the Respondent below in [47] do not justify the exercise of discretion in favour of the Respondent. Firstly, the fact that the Respondent was guided by professional people is irrelevant to the existence of unlawful work, even accepting that the then architect for the Respondent had been untruthful. Once the Stop Work Order issued that the work was unlawful it would have been obvious that the reliance on professionals was misguided. Despite that, the unlawful work continued and was completed, even in the face of subsequent court orders by two judges to cease work. 10. Reliance on the judgment of Senior Commission Dixon in Malass (Class 1) is also misplaced. That decision was 18 months ago. In the meantime, the unlawful development has been completed and occupied. 11. The oral evidence of Mr Grech takes the matter no further, as the completed unlawful development is significantly higher and more extensive than the approved development. The Respondent also misstated the position set out in the 2017 development consent, which clearly shows the basement which was approved less than one metre above existing ground level. 12. Reliance on proposed demolition to remedy landscape non-compliance, correct flooding issues or the proposed demolition generally cannot assist as this is not a Class 1 merits proceeding. A merits assessment should not be undertaken in this civil enforcement proceeding. The development application is also not before the Court. The Respondent does not provide an answer to the adverse impacts identified in Mr Grech's report. 13. The Respondent seeks an opportunity for yet another attempt to delay compliance with the approved 2017 development consent. To allow that opportunity is to sanction or ignore the present unlawful occupation of the Property, without an occupation certificate, as well as up to three years of continual defiance of: 1. Two development control orders; 2. Clear orders by two judges of this Court requiring works to cease; and 3. The significant and adverse effect of the oversized and 'jarring' development on neighbours and the environment. 1. For those reasons, the orders sought in the Summons generally ought to be made. The Council conceded that the 60 days sought for compliance was not realistic. The Council would accept a period in total of six months for ceasing use of the Property (Order 4) and compliance (Order 5). I note Order 4 as drafted in the Summons does not have a temporal limit. The Council now submits an order to vacate the premises at a time earlier than the Compliance Order temporal limit is needed as otherwise there will be no incentive for the Respondent to comply with the orders. The Compliance Order requires demolition and reconstruction. Respondent's submissions 1. The Respondent provided the following written submissions filed in Court on 10 October 2023: The Applicant in these proceedings has brought before the Court a compelling case to invite the Court to demolish my family's home. On the papers, the chronology of events paints me as reckless and cavalier. The papers paint my prospects for approval of a modified design as hopeless. The respondent cites breaches of orders, refused development applications and building information certificate application and references multiple plan amendments all of which have been unsuccessful. Your Honour, I am a plumber. I have spent $700,000 in legal fees associated with my home. I am now facing bankruptcy and I can no longer afford legal representation. Within the context of those constraints, I wish to ask the Court to consider four things, all of which are in evidence before you. After you consider all of these things, it is my submission that the Court will be attracted to a solution which involves partial demolition, substantial compliance with planning controls and which does not result in my family home being demolished in its entirety. The things I ask you to consider are these: First is my Affidavit signed 9 October 2023. Within that document I present the other side of the story as to how I found myself in this situation. You will find in that Affidavit, that I have been guided by professional people since the outset. You will find acknowledgement from me that I knowingly commenced construction prior to the s4.55 modification being approved. However, your Honour will appreciate that I was making decisions during an unprecedented time in living history, under the pressure of my staff being unable to work and gallingly, on the basis of untruthful information which had been told to me by my architect. I ask that your Honour weigh those circumstances against the chronology of events presented by the Applicant. Second, as to the hopelessness of my prospects for gaining approval of a modified development, your honour will read the judgment of Commissioner Dixon in Malass v Strathfield Municipal Council [2022] NSWLEC 1160. Your Honour will notice that the Commissioner was dismissed the Appeal primarily because of the clause 4.6 request for variation which had been made in respect of floor space ratio. This is made plain by paragraph 11 of the judgment. The Commissioner foreshadowed the potential for a way forward at paragraph 12. The third thing I ask Your Honour to observe is evidence of Paul Grech. In respect of floor space ratio, Mr Grech advised that he had not considered how much of the basement of the 2017 approved development was greater than 1m above ground level existing. Mr Grech assisted the Court by advising that approximately the rear two thirds of the site were below RL 19.4. Your Honour will see from Volume 1 Tab 5 that the ground level of the 2017 approved dwelling was RL 20.4. According to Mr Grech therefore, any part of the basement which is within the rear two thirds of the site is more than 1m above ground level existing. Any storage areas which are in the basement and which are positioned above RL 19.39 or less, are storage areas which are not within a "basement". That is because to meet the definition of basement under the Dictionary to Strathfield LEP 2012, the floor level of the level above must not me [sic] more than 1m above ground level existing. Subteranian [sic] storage areas which are not within a "basement" as defined, do not benefit from the GFA exclusion which is availed to storage and/ or services areas referenced in paragraphs (e)(i) and (ii) of the definition of "gross floor area". The Applicant has not quantified what the FSR of the 2017 approval was, when properly calculated by including portions of the approved basement which were more than 1m above ground level existing. The extent of FSR difference between what was approved and what is capable of being proposed has not been answered. In relation to landscaped area noncompliance, it is agreed that clause 5.2.1 of DCP 2005 requires landscaped area to be 43% of the site area or 338.49 m2. Mr Grech calculates the existing landscaped area to be 32 m2 (Grech [10.17]). Demolition works can be proposed to achieve compliance with the landscaped area control. Commissioner Dixon quotes the then Applicant's town planning expert at paragraph 51 in which it was reported that the proposed development delivered 42% landscaped area. Your Honour has reason to expect that a satisfactory landscape outcome does not necessitate the demolition of the whole dwelling. The Applicant has also alleged that the existing development is unsatisfactory with regard to flooding. Your Honour will find comfort about flooding from paragraph 19 of Malass v Strathfield Municipal Council [2022] NSWLEC 1160 in which the Commissioner records, "The latest amendments together with the revised flood assessment (Ex 15) and structural engineering report have largely resolved the Council and objectors' concerns about flooding". If I am given the opportunity to lodge a building information certificate application and a development application, demolition works would remove the majority of the planning non­compliances. Demolition works would reduce the size of the basement, which in turn would provide opportunity for DCP compliant landscaping and deep soil planting opportunity. Demolition works would not cure all planning non-compliances. However, in my submission, and in circumstances where the Court identified a pathway forward, in circumstances where the Court indicated dissatisfaction with a clause 4.6 written request more so than dissatisfaction with the proposed development, it is reasonable that I be given opportunity to pursue the pathway invited by the Commissioner. I have such an application on the cusp of being lodged. After considering those three things (my Affidavit, the Court's decision in the Class 1 Appeal, and the evidence of Mr Grech about the 2017 approved development) the Court should have, in my submission, reason to be concerned that the Applicant has not addressed you about options available to you other than complete demolition. Rather, the Applicant points to indisputable characteristics of the existing development, and then prosecutes a simplistic case that it would be unacceptable to allow that existing development to remain. The only attempt the Applicant has made to dissuade the Court from allowing the Respondent opportunity to correct the existing situation is by observing that the Respondent has attempted that course and failed. The Applicant has done little to assist the Court in understanding the reasons for that failure. On fair reading of Commission Dixon's decision, I submit that the Appeal failed because of a poorly prepared clause 4.6 request rather than because the proposed development was unacceptable on merit. The history of this matter is such that a poorly prepared clause 4.6 request for variation prevented a comprehensive merit assessment from being completed. Your Honour, you have my Affidavit that I have on the cusp of lodgement, a development application and building information certificate application. In this matter, I have also identified facts which, if given opportunity, I will advance as environmental planning grounds which were absent from the previous Appeal. That is, I have identified that the 2017 approved dwelling included basement floor space which had been incorrectly omitted from the assessment of that development application and from the assessment of all town planners to date, including Mr Grech. I will make the case, if allowed, that the 2017 approved development did not comply with the statutory floor space ratio. I will demonstrate that the gross floor area of what I will propose is substantially the same as what had already been approved. I accept that there will remain, an important merit assessment after the clause 4.6 jurisdiction threshold is passed. I will need to demonstrate satisfactory merit on wall height, bulk and scale, side setbacks, privacy, overshadowing and residential character compatibility. I will also need to ensure that previously agreed flooding solutions remain solutions. However, it is not fanciful for me to expect that I can be successful in that task. It is not a hopeless application which I will be bringing to the Council and in all likelihood it seems, to the Court. My submission therefore, is that I be allowed that opportunity. Not to repeat an already failed Appeal and to hope for a different answer to the same question. Rather, I want to pursue the "pathway forward" which Commissioner Dixon alluded to. Thank you for considering my submission. 1. In additional written submissions dated 20 October 2023 submitted without leave the Respondent accepted that the house was built in breach of planning controls and had unacceptable impacts. She submitted there were good prospects for success if another development application is lodged because the approved development did not comply with the relevant FSR control on the basis of how storage areas should be assessed and a comparison should be made in any further merits review. In addition the cl 4.6 variation prepared for DA2020.239 the subject of Malass (Class 1) did not compare the proposed development with the approved development. If this had occurred the privacy impacts of the approved development would have been a relevant consideration. 2. In the course of the hearing Mr Malass submitted orally that his wife the Respondent and three children should not be required to leave the family home where they are safe. Mr Malass and his family are not in a position to move. Mr Malass submitted that his company has entered voluntary administration and he is not in a good state of mind. He submitted that he had lodged DA2023.132 and a BIC with the Council and wanted the opportunity to pursue that. When pressed on a timeframe to enable these matters to occur he stated a delay of 12 months for the making of orders was sought. Consideration Breaches established 1. The Council has overwhelmingly established the breaches of the EPA Act on which it relies and the Respondent did not appear to dispute these to any great degree. The Council has established non-compliances with the 2017 development consent and the 2018 construction certificate in the evidence of Mr Grech town planner summarised above in [16]-[19] which are itemised in the Council's statement of facts set out at [25]. The exceedances of the permitted development relate to building height, wall height, gross floor area, basement area, setbacks at ground and upper levels of the dwelling and failure to comply with landscaping requirements. The basement level has been built at least one metre above the permitted level increasing the bulk and scale of the whole building. The landscape requirement of 43% of the Property has not been complied with to a substantial degree as only 4.2% of the Property is provided for landscaping. The planting does not comply with the approved development. 2. As far as I can determine Mr Malass sought to argue that the evidence of Mr Grech in relation to the RL of the area occupied by the dwelling was not correctly assessed by him and consequently the FSR of the approved dwelling not calculated. The principal written submission seemed to be that given the treatment of storage area and basement area under the SLEP, the FSR of the 2017 development consent was not properly calculated to include portions of the approved basement more than one metre above existing ground level. Accordingly the exceedance of FSR has not been quantified. If anything the treatment of storage area in the basement as not benefitting from the gross floor area exclusion appeared to support Mr Grech's evidence. As the Council submitted the oral evidence of Mr Grech does not assist the Respondent and I do not consider it has been undermined in any way. No other non-compliances identified by Mr Grech appeared to be disputed by the Respondent. 3. The uncontested evidence of Mr Dewar summarised above in [20] also establishes that flood management requirements such as the Council's Interim Flood Prone Lands Policy 1999 and the 2017 Aitken Flood Report which supported the Respondent's 2017 development application have not been complied with. The consequences of this non-compliance include impacts off the Property from runoff due to changes in how runoff enters and exits the Property, an increase in the amount of runoff due to the lack of permeable ground on the Property to absorb rainwater and reduction in temporary floodplain storage capacity. 4. The Council has also established the failure of the Respondent to comply with the Stop Work Order issued on 14 September 2020 and the failure of the Respondent to comply with the Compliance Order issued on 10 March 2021. Exercise of discretion 1. Under s 9.46 of the EPA Act if the Court is satisfied that a breach of the EPA Act has occurred it can make any order it considers appropriate to remedy or restrain the breach. Under subs (2) an order can restrain the use of a building and require the demolition of a building where the breach of the EPA Act concerns that use and erection of a building. Under subs (3) if a breach of the Act arises from the failure to obtain development consent the Court can adjourn proceedings to enable a development application to be made if such an application is made by a respondent. The issue of whether and how the Court should exercise its discretion in making declarations and consequential orders will now be considered. 2. The Respondent and her family are living without an occupation certificate in an unlawful dwelling that is substantially larger than what was approved. 3. The wide discretion of the Court in considering relief concerning the enforcement of a public duty directed to the orderly development and use of the environment was identified in Sedevcic at 339. I considered the principles dealing with the exercise of discretion where a breach of the EPA Act has been established in Cooke at [205] as follows: [205] I discussed in Kempsey Shire Council v Thrush & Anor [2011] NSWLEC 93 [45]-[47] the Court's broad discretion in the context of a number of authorities referred to by the parties as follows: This Court has broad discretion in determining whether the relief sought ought be granted and in what form where a breach of the EPA Act is established. The wide discretion of the Court has been recognised in cases such as F Hannan Pty Ltd v Electricity Commission (NSW) (No 3) (1985) 66 LGRA 306 at 313. In Warringah Shire Council v Sedevcic (1987) 10 NSWLR 335 Kirby P (as he then was) identified a number of principles to take into account at 339-341. The principles emphasise, inter alia, the wide nature of the discretion and the importance of upholding public laws as follows: Because s 123 of the Act permits any person (and not just the Attorney-General or a person with a sufficient interest), to bring proceedings in the Court for an order to remedy or restrain a breach of the Act, there is indicated a legislative purpose of upholding, in the normal case, the integrated and co-ordinated nature of planning law. Unless this is done, equal justice may not be secured… In ACR Trading Pty Ltd v Fat-Sel Pty Ltd (1987) 11 NSWLR 67 Kirby P at 82D stated that discretion permits the refusal of relief if granting it would work an injustice disproportionate to securing enforcement of the legislation. In Sedevcic Kirby P at 340F set out several guidelines for the exercise of discretion to the effect that discretion can be more readily exercised where the breach is more easily remedied than for, say, a static structure that requires demolition. Ultimately Kirby P recognised as relevant to the judicial perception of the need to balance the public interest in compliance with the law with the degree of irremediability arising from a breach (340F). 1. Factors to consider include whether a breach is technical and otherwise not noticeable, any delay in a local authority taking enforcement action and whether the breach has a beneficial effect: Sedevcic at 339. 2. Considering firstly the magnitude of the breaches, the building built does not comply with the 2017 development consent or the 2018 construction certificate issued in 2018 in substantial ways as extensively itemised in the Council's statement of facts above in [25]. The as-built development breaches of relevant planning controls include breaches of building height, wall height, gross floor area, basement requirements, requirements regarding the bulk, scale and privacy impacts of the Property, setback requirements, landscaping, sunlight access, compliance with BASIX certificate, and flood management requirements. 3. In terms of impacts the substantial non-compliances across building height, gross floor area, basement requirements, requirements regarding the bulk, scale and privacy on neighbours of the Property, setbacks and landscaping have resulted in substantial adverse amenity impacts on neighbouring properties. These impacts include visual impacts due to the size of the building, loss of landscaped area and potential overlooking and overshadowing. 4. The dwelling as built does not fit in with the streetscape and character of the area due to the bulk, scale, privacy impacts on neighbours and landscaping issues. Landscaping, non-compliance with the BASIX certificate and flood management breaches also have an impact on the environment. 5. The Respondent has undermined orderly development being carried out in accordance with the EPA Act and gained a private advantage in doing so, with little to no regard for the neighbours of the Property and the local area generally. The breaches are not technical. They are the opposite of beneficial in their effect. 6. The Council has not delayed in taking enforcement action in commencing this Class 4 proceeding, following the issuing of enforcement orders as provided for under the EPA Act. The Stop Work Order was issued by the Council on 14 September 2020, the Compliance Order on 10 March 2021. A Class 1 proceeding was commenced by the Respondent to challenge the Stop Work Order on 9 October 2020. This Class 4 proceeding commenced on 2 August 2021 and was stood over for a considerable period to enable the Respondent to pursue Class 1 appeals for a further development application and a BIC application. All three appeals were dismissed in May 2022 in Malass (Class 1). 7. The history of the Council's enforcement efforts and the lack of compliance by the Respondent with that enforcement action is highly relevant to understanding how these events occurred. The lengthy history is summarised in the chronology above in [21] and includes the Stop Work Order issued in September 2020 and the Compliance Order issued in March 2021. 8. The lengthy history of council officer inspections of the Property from June 2021 is detailed in the numerous affidavits of the council officers and set out in the chronology above in [21]. The inspections identified that unlawful work continued up to the Stop Work Order issued in September 2020 and continued after the Stop Work Order was issued. 9. Work also continued in breach of court orders in the Class 1 and Class 4 proceedings. In the Class 1 proceeding commenced on 9 October 2020 the Respondent sought to appeal the Stop Work Order and sought by notice of motion an order that it be stayed. Court orders were made on 27 November 2020 in Malass v Strathfield Municipal Council [2020] NSWLEC 168 whereby limited work to avoid future damage to the building was permitted, and no other work. The Respondent pleaded guilty to contempt of these orders. In Malass v Strathfield Municipal Council [2022] NSWLEC 131 findings of significant work done in breach of the November 2020 orders, that the Respondent's contempt was wilful and the contempt was objectively serious were made. 10. The Class 4 enforcement proceeding commenced on 2 August 2021. A court order was made on 11 August 2021 that the Respondent immediately cease work until finalisation of the Class 4 matter. An order enabling inspection of the Respondent's property by the Council was made in October 2021. The Respondent pleaded guilty to contempt of both orders. In sentencing for contempt proceeding in Strathfield Municipal Council v Malass [2022] NSWLEC 132 findings were made that the contempt was wilful and objectively serious. The Respondent's on-going failure to stop unlawful work at the Property is the principal reason for the unlawful dwelling now being completed and occupied on the Property. The Respondent is responsible for substantial breaches of the EPA Act orders and the court orders. 11. The Respondent's written submissions extracted in full in [47] above sought to blame the architect employed for failing to lodge a s 4.55 modification application, which Mr Malass accepts he acted on before it was approved, because he needed to provide work for his employees with COVID-19 disrupting work. Accepting that evidence at face value the Respondent's current position is a result of numerous failures to stop work when ordered by the Council and the Court on several occasions commencing from the issuing of the Stop Work Order in September 2020. 12. Of the inadequate landscaped area and flooding impacts Mr Malass submitted that there should be a further opportunity to make a development application and a BIC application as demolition works would remove the majority of the planning non-compliances. I inserted the word 'further' in the previous sentence as the Respondent has already sought to obtain development consent and a BIC. The Respondent essentially seeks a further opportunity to undertake the same process submitting there are good prospects because of observations made in Malass (Class 1). 13. I do not consider it is appropriate that I form any view of the 'merits' of any further development application or BIC application as I am not engaged in a merits appeal hearing. Reviewing Malass (Class 1) to ascertain why the Respondent was unsuccessful in relation to those applications before the Court is of little assistance now some 18 months later. In addition no development application or BIC application is before the Court to assess even if I were minded to do so. The Respondent's written submissions dated 20 October 2023 summarised above at [48] suggested that in any further development application appeal that a comparison with the approved development ought be made in relation to FSR controls and privacy impacts. I am not able to assess the merits of that submission in light of the evidence before the Court. These were matters that could have been addressed in the appeal that resulted in Malass (Class 1). I do not give any weight to the substance of these submissions in the exercise of my discretion. 14. Mr Malass submitted in the substantive hearing in October 2023 that further opportunity should be provided for the Respondent to have DA2023.132 and a BIC very recently lodged on the NSW Planning Portal considered by the Council and to that end the making of any orders should be stood over for 12 months to enable that to occur. As became clear when the Council was given leave to re-open its case on 2 February 2024, DA2023.132 said to be uplifted to the NSW Planning Portal in October 2023 was not lodged for the purposes of the EPA Act because it lacked essential information. A further development application (DA2024.1) has now been accepted by the Council as lodged on 2 January 2024. The Respondent or her agent did not appear at the hearing of the Council's notice of motion on 2 February 2024. No further submission has been made by the Respondent in relation to the development application now lodged in relation to a period of delay in making consequential orders to enable that development application to be considered by the Council. Given that Malass (Class 1) was determined in May 2022 the Respondent has not acted in a timely or effective way to make a new development application and BIC application. 15. Mindful of observations in Great Lakes Council v Lani (2007) 158 LGERA 1; [2007] NSWLEC 681 at [23]-[25] that declarations should not be made lightly, the circumstances given the substantial and on-going non-compliance warrant the Court exercising its discretion to make the declarations sought by the Council. 16. To adapt Kirby J in ACR Trading Pty Ltd v Fat-Sel Pty Ltd (1987) 11 NSWLR 67 at 82D in the context of whether to grant injunctive relief, is the postponement of relief warranted as granting it would work an injustice disproportionate to securing enforcement of the legislation? I am considering a static development, namely the unlawful dwelling house constructed: Sedevcic at 340F-G. The Respondent has already been provided with the opportunity to regularise the unlawful development. The opportunity caused substantial delay of more than two years in the finalisation of this enforcement proceeding. Given the history of determined non-compliance with the EPA Act over several years, the scale of the breaches and the private benefit gained at public expense, I am minded to make orders restraining the unlawful use of the dwelling on the Property and require compliance with the 2017 development consent and the 2018 construction certificate, at least in relation to demolition. Whether I should make orders requiring rebuilding will be discussed with the parties. 17. The Council's Summons seeks various orders restraining use of the Property and requiring compliance with the 2017 development consent, the 2018 construction certificate and the Compliance Order within 60 days (2 months). Its representative accepted during the proceeding that this timeframe was unrealistic. I do not have any submissions from the Respondent about what timeframe for this work is realistic. The demolition and possible building work required is substantial and no doubt costly. The Respondent and her family will have to vacate the Property and must logically do so before building work can commence. I am considering requiring the Respondent to vacate the Property within six months of these orders. Doing the best I can on limited information I am minded to allow 12 months for any demolition works to be carried out. The timeframe will be discussed with the parties before orders are finalised. Costs 1. The Council flagged that it would seek a gross sum costs order or orders for costs on an indemnity basis. I have not heard from the Respondent on costs. I will reserve judgment on costs. A timetable to prepare submissions on costs will be made after consultation with the parties. Declarations and Orders 1. I will make the declarations sought by the Council as set out in the summons extracted above in [4] at the same time that the orders are finalised. I will confer with the parties in relation to the form of orders to be made before finalising these as they will require vacation of the Property and excavation to be carried out. Whether there is necessity for orders requiring rebuilding will be discussed. ********** 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: 20 March 2024