Land and Environment Court New South Wales Medium Neutral Citation: Ajvadi v Wicks (No 2) [2024] NSWLEC 44 Hearing dates: 1 May 2024 Date of orders: 1 May 2024 Decision date: 02 May 2024 Jurisdiction: Class 4 Before: Pepper J Decision: See orders at [46]. Catchwords: CIVIL ENFORCEMENT: development without consent – whether declaratory relief should be granted – whether demolition or other remediation should be ordered. Legislation Cited: Environmental Planning and Assessment Act 1979, ss 4.2, 9.45 Cases Cited: Ajvadi v Wicks [2023] NSWLEC 145 Friends of Glebe Wetlands Incorporated v Littlewoods Civil Contracting Pty Ltd [2022] NSWLEC 21 Great Lakes Council v Lani [2007] NSWLEC 681; (2007) 158 LGERA 1 Hill Top Residents Action Group Inc v Minister Administering the Sporting Venues Authorities Act 2008 (No 4) [2011] NSWLEC 6 PAG Services Pty Ltd v Byron Shire Council [2023] NSWLEC 40 Sader v Elgammal (No 2) [2024] NSWLEC 4 Warringah Shire Council v Sedevic (1987) 10 NSWLR 335 Wollongong City Council v Matthew Dominic Fikkers [2023] NSWLEC 52 Category: Principal judgment Parties: Fayavar Ajvadi (First Applicant) Shohreh Rezai (Second Applicant) Michael Wicks (First Respondent) Northern Beaches Council (Second Respondent) Representation: Counsel: M Seymour SC (First and Second Applicants) N Hammond (First Respondent) Submitting Appearance (Second Respondent) Solicitors: Addisons (First and Second Applicants) Hones Lawyers (First Respondent) Wilshire Webb Staunton Beattie (Second Respondent) File Number(s): 2022/333225 Publication restriction: N/A JUDGMENT Development is Carried Out Without Consent 1. These proceedings (commenced in Class 4 of the Court's jurisdiction) concern what relief, if any, should be granted in the exercise of the Court's discretion pursuant to a concession by the first respondent, Michael Wicks, that he carried out development without the necessary development consent in breach of s 4.2(1)(a) of the Environmental Planning and Assessment Act 1979 ("the EPAA"). 2. The proceedings were initiated by the applicants, Dr Fayavar Ajvadi and Dr Shohreh Rezai, whose property was impacted by the unlawful works. 3. The second respondent, the Northern Beaches Council ("the Council"), filed a submitting appearance. 4. The active parties to the proceedings have agreed, following extensive negotiation, on the practical remediation that should be carried out by Wicks to rectify his illegal activity. This agreement was reflected in proposed consent orders which the parties requested that the Court make. The Court made those orders when the matter came before it for hearing, with reasons to be delivered later. These are those reasons. Wicks Builds a Retaining Wall 1. The facts giving rise to this hearing were contained in an agreed statement of facts and in an affidavit of Peter Clarke, affirmed 30 April 2024, together with exhibits. Clarke is Wicks's solicitor. 2. Wicks is the owner and occupier of 40 Castle Circuit, Seaforth ("No 40"). The applicants are the owners of 42 Castle Circuit, Seaforth ("No 42"). The applicants do not occupy No 42, it is occupied by their relatives. 3. In January and February 2021, Wicks caused works to be commenced and carried out on No 40, which involved the removal of vegetation, the cutting up and reuse of natural bush rock, the construction of a large retaining wall partially on top of a prior low retaining wall ranging up to 30 cm tall, the erection of a balustrade, backfilling, and the change to ground levels at the rear and south-western boundaries of No 40 ("unauthorised works"). A diagram showing the extent of the wall as at 10 January 2023 is below: 1. The unauthorised works resulted in a top of wall level of RL91.50, and an approximate height of between 1.9 m and 2.5 m at the western boundary of No 40. The height ranged from between 0.37 m and 0.5 m to the eastern boundary of the applicants' property at No 42. 2. The unauthorised works required development consent, but were carried out without it. 3. In March 2021 a new rear boundary fence was installed on No 40 and a concrete slab was laid for a stone seating area on top of the unauthorised works. 4. At about the same time, the applicants were made aware by the occupiers of No 42 of the scale of the unauthorised works. As a consequence, the applicants sent an email to Wicks complaining about the works. 5. In April 2021 the balustrade, stone seating area and the unauthorised works were completed. However, in June 2021, the stone seating area on top of unauthorised works was removed. 6. On 5 October 2021 the applicants emailed the Wicks following up on their April complaint. 7. In the meantime, on 18 November 2021 Wicks lodged an application for a Building Information Certificate (BIC 2021/0265) with the Council in relation to the unauthorised works ("first BIC"). 8. Wicks then lodged a development application on 19 November 2021 with the Council (DA 2021/2196) for alterations and additions to the dwelling house on No 40 and the use of the unauthorised works ("the first DA"). 9. The applicants lodged an objection to the first BIC with the Council on 12 December 2021. 10. The applicants lodged an objection to the first DA with the Council on 13 December 2021. 11. The Council refused the first BIC on 16 May 2022, but on 16 August 2022 granted development consent to the first DA ("2022 consent"). The 2022 consent had a deferred commencement provision requiring a BIC to be issued for the unauthorised works. 12. Wicks lodged a second application for a BIC (BC 2022/0263) with the Council for the unauthorised works on 19 October 2022 ("the second BIC"). 13. The applicants lodged an objection to the second BIC with the Council on 20 October 2022. 14. On 7 November 2022 the applicants commenced Class 4 proceedings seeking, amongst other things: 1. a declaration that the 2022 consent was invalid and of no effect; 2. an order quashing the 2022 consent; 3. a declaration that the unauthorised works were carried out without development consent in breach of the EPAA; and 4. an order that the unauthorised works be demolished and No 40 be reinstated to its original form and levels. 1. Wicks surrendered the 2022 consent under s 4.63 of the EPAA on 15 December 2022. 2. On 7 February 2023 Wicks filed a response to the summons. 3. Wicks lodged a second development application (DA 2023/0182) with the Council on 22 February 2023 for use of the unauthorised works ("the second DA"). Subsequently, on 3 March 2023 an amended summons was filed, removing the grounds for judicial review in relation to the 2022 consent. The only remaining dispute concerned the status of, and the appropriate remedies in relation to, the unauthorised works together with costs. 4. On 21 March 2023 Wicks filed a Class 1 appeal in this Court to appeal the deemed refusal of the second BIC. 5. On 13 April 2023 the applicants lodged an objection to the second DA with the Council. 6. Wicks also filed a Class 1 appeal in this Court to appeal the deemed refusal of the second DA. 7. The parties participated in a mediation of all three matters from 30 June to 11 October 2023. The mediation was adjourned and continued over a number of occasions. The mediation was terminated on 11 October 2023. 8. Wicks discontinued the two Class 1 appeals on 19 October 2023. 9. On 22 November 2023 Wicks lodged a third development application (DA 2023/1696) with the Council for alterations and additions to the dwelling house on No 40 and demolition of the majority of the unauthorised works ("the third DA"). He also filed an application on 23 November 2023 seeking to stay the proceedings pending the determination of the third DA. 10. The applicants lodged an objection to the third DA with the Council on 12 December 2023. However, consent was granted to the third DA on 24 April 2024. 11. Pritchard J dismissed the motion for a stay on 15 December 2023 (Ajvadi v Wicks [2023] NSWLEC 145) and on 22 December 2023, the matter was set down for a two-day hearing commencing on 1 May 2024. 12. The structural engineering and geotechnical assessment reports, together with the stormwater plans, forming part of the third DA, and ultimately the development consent, have informed the works to be carried out pursuant to the consent orders the subject of this judgment. What is the Appropriate Relief? 1. Since the surrender of the 2022 consent, the only issue remaining before the Court concerned what, if any, orders should be made pursuant to s 9.45(1) of the EPAA to "remedy or restrain" the acknowledged breach of the EPAA by Wicks having carried out the works at No 40. Section 9.45(1) of the EPAA provides that: 9.45 Restraint etc of breaches of this Act (1) Any person may bring proceedings in the Court for an order to remedy or restrain a breach of this Act, whether or not any right of that person has been or may be infringed by or as a consequence of that breach. 1. The grant of the 2024 consent reduced even further the scope of the contested issue before the Court. Accordingly, the parties submitted that the Court should grant the following relief: 1. a declaration that Wicks carried out the works comprising construction of the retaining wall without development consent in breach of s 4.2(1)(a) of the EPAA; 2. an order for those parts of the wall not approved to be retained in the 2024 consent to be demolished and removed in accordance with the conditions of that consent. This order was proposed to be stayed for a period of four weeks to allow Wicks to attend to any steps required before a construction certificate can be obtained to commence demolition works. The order, when it comes into operation, will require the completion of those demolition works within 90 days; 3. an order that Wicks complete the deck, stairs and associated 1.7 m privacy screen at the rear of No 40, in conformity with the conditions of the 2024 consent. Again, this order is proposed to be stayed for a period of four weeks to allow for Wicks to attend to any steps required before a construction certificate can be obtained to commence the works. The order, when it comes into operation, will require the completion of those construction works within nine months. Declaratory Relief 1. Wicks does not oppose a declaration being made to the effect that the construction of the retaining wall and the placement of infill was carried out in breach of s 4.2(1) of the EPAA. 2. The applicable principles relating to the grant of declaratory relief are well established (see Great Lakes Council v Lani [2007] NSWLEC 681; (2007) 158 LGERA 1 at [20]-[25], Friends of Glebe Wetlands Incorporated v Littlewoods Civil Contracting Pty Ltd [2022] NSWLEC 21 at [12]-[16] and most recently in Sader v Elgammal (No 2) [2024] NSWLEC 4 at [25]). In PAG Services Pty Ltd v Byron Shire Council [2023] NSWLEC 40, Pritchard J summarised them as follows, which I respectfully adopt and apply in this instance (at [73]-[75], footnotes omitted): [73] The Court's correspondence with the parties (see above at [68]–[71]) arose from a concern that there was no proper contradictor in circumstances where Council indicated that it "takes no position on whether or not the development consent has lapsed". [74] In Penrith City Council v Dincel Construction System Pty Ltd and Gaonor Pty Ltd (OSSM case), Robson J observed as follows: 14. It has been held that a condition precedent to granting declaratory relief is that, inter alia, the plaintiff must be able to secure a proper contradictor, that is, someone presently existing who has a true interest to oppose the declaration sought: Russian Commercial and Industrial Bank v British Bank for Foreign Trade Ltd [1921] 2 AC 438 at 448 and Forster v Jododex Australia Pty Ltd (1972) 127 CLR 421; [1972] HCA 61 at 438. 15. In Australian Competition and Consumer Commission v MSY Technology Pty Ltd (2012) 201 FCR 378; [2012] FCAFC 56 (MSY), the question that arose was whether, having regard to the consent of the parties to the granting of the declaratory relief proposed, the primary judge was prevented from granting that relief. Put another way, the question was whether consent to the relief sought precluded the respondent from being a "proper contradictor". The Full Federal Court (Greenwood, Logan and Yates JJ) held, at [30], that the correct position could be found in the judgments of Dawson J in Oil Basins Ltd v Commonwealth of Australia (1993) 178 CLR 643; [1993] HCA 60 at 648 and French J in IMF (Australia) Ltd v Sons of Gwalia Ltd (administrator appointed) [2004] FCA 1390; (2004) 211 ALR 231 at [47] . The Court stated that if a party had a true interest in the plaintiff's claim, even if they saw that interest served by not opposing the relief claimed, that would be sufficient to render them a "proper contradictor": MSY at [16]. Similar sentiments were expressed in Zetting v Müller [2017] NSWSC 659 and Re Beechworth Land Estates Pty Ltd (admins apptd) [2017] NSWSC 1447 . [75] In this case, there was no proper contradictor, active or inactive. It is true that the Court has granted declaratory relief in circumstances where there was no contradictor: see Zaymill Pty Ltd and Maksim Holdings Pty Ltd v Ryde City Council (Zaymill), a case relied on by Council, and Donvito v Hawkesbury City Council (Donvito). It is also clear that the Court's jurisdiction to make a declaration is a "very wide one", limited only by the Court's discretion. Whilst the jurisdiction may be ousted by statute, the right of a subject to apply to the court for a determination of their rights will not be held to be excluded except by clear words. 1. Turning to the facts of this case, at all material times Wicks has been a proper contradictor having regard to his interest in the outcome of the proceedings, his active participation in the litigation, and his initial resistance to the remedial orders sought. The area of dispute between the parties has been directed to how to best remediate No 40. In these circumstances, a declaration affirms the Court's approval of the negotiations between the parties that have reduced the issues in dispute and have resulted in the preparation of agreed orders. 2. Another relevant factor is whether granting the declaration has the practical effect of marking disapproval by the Court of the conduct leading to the breach of the EPAA (Hill Top Residents Action Group Inc v Minister Administering the Sporting Venues Authorities Act 2008 (No 4) [2011] NSWLEC 6 at [15]-[23]). In my view it does. 3. As stated above, the retaining wall was constructed without development consent first being obtained as required. In these circumstances, the failure of Wicks to obtain consent prior to the carrying out of works undermines the regulatory system and fails to promote the orderly development of land, which is contrary to the express objectives of the EPAA. Moreover, pre-emptory action deprives the consent authority of the opportunity to assess the environmental impacts of proposed development and it denies neighbours the opportunity of making submissions on perceived likely impacts. 4. It is therefore appropriate for the Court to make the declaration sought because it marks the disapproval of the Court over the conduct of Wicks and sends a message to the community that people should make inquiries and, when appropriate, obtain professional advice on whether works require development approval. Remedial Orders 1. Because the 2024 consent does not provide for any specific timeline for works to be carried out, it is open to the Court to order that the demolition of the unapproved parts of the wall are to be carried out promptly within a specified timeframe. Such an order will serve the purpose of providing an appropriate remedy for the admitted breach of the EPAA and provide timely relief to the applicants. A copy of the approved plan identifying the parts of the wall to be demolished and the parts to be retained is below: 1. In Warringah Shire Council v Sedevic (1987) 10 NSWLR 335 (at 339-341) guidance was provided in respect of the exercise of the Court's discretion to make the proposed remediation orders. The Court made similar orders in Wollongong City Council v Matthew Dominic Fikkers [2023] NSWLEC 52, granting both declaratory relief and remediation, albeit narrower in compass than those sought, because a consent had been granted which regularised some, but not all, of the unlawful works. 2. In this case, the evidence discloses that: 1. the unauthorised works were carried out without the necessary development consent; 2. the scale of the works, with the construction of a large retaining wall and then infilling, was not trivial and the failure to obtain approval for the works cannot be characterised as a minor technicality; 3. there were impacts on the privacy and amenity of the applicants' property due to the infilling creating a level surface that would facilitate overlooking from the rear yard of No 40 into the dwelling on the applicants' property; and 4. the grant of the 2024 consent represents an appropriate balancing exercise carried out by the Council to provide some retention of the works to the benefit of No 40 and some removal of the works together with some attenuating planting and privacy screening, for the benefit of the applicants. This removed the need for the Court to make any complex orders in the nature of conditions of a development consent. Conclusion and Orders 1. It follows from the discussion above that it is appropriate to make the orders sought by the parties in the consent orders furnished by them to the Court. 2. Accordingly, the Court: 1. declares that the first respondent, by his servants, agents or invitees, has carried out, or caused to be carried out, works on land at 40 Castle Circuit, Seaforth, known legally as Lot 24 in DP 20458 ("Wicks land"), being the construction of a retaining wall adjoining the western boundary between the Wicks land and the land at 42 Castle Circuit, Seaforth, known legally as Lot 23 in DP 20458 ("the wall"), without development consent and in breach of s 4.2(1)(a) of the Environmental Planning and Assessment Act 1979; 2. orders that within 30 days of the date of these orders, the first respondent, by his servants, agents, or invitees, is to commence the demolition of part of, and undertake remedial works to, the wall in accordance with the architectural, landscaping, stormwater and structural engineering plans and reports ("works") as approved in development application reference number DA2023/1696 ("development consent"). The works are to be completed subject to the conditions of that development consent, and must be completed, including all associated landscaping, within 90 days of the date of these orders; 3. orders that within nine months of the date of these orders, the first respondent by his servants, agents, or invitees, is to complete the deck, stairs and associated 1.7 m privacy screen at the rear of the Wicks land as approved pursuant to the development consent. 4. stays orders 2 and 3 for a period of four weeks from the date of these orders; 5. orders that the first respondent is to pay the applicants' costs of the proceedings from 16 December 2022 to date, as agreed or assessed; 6. grants the parties liberty to apply on three 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 demonstrated by notice of motion and supporting affidavit evidence; and 7. orders that the exhibits are to be returned. ********** 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: 02 May 2024