Land and Environment Court of New South Wales CITATION : North Sydney Council v Nazero Constructions Pty Limited [2001] NSWLEC 238 revised - 1/11/2001 APPLICANT North Sydney Council PARTIES : RESPONDENT Nazero Constructions Pty Limited FILE NUMBER(S) : 40165 of 2001 CORAM: Cowdroy J KEY ISSUES: Injunctions and Declarations :- development without consent LEGISLATION CITED: Environmental Planning and Assessment Act 1979 ACR Trading Pty Ltd and Anor v Fatsel Pty Ltd (1987) 11 NSWLR 67 (CA) ; CASES CITED: Attorney-General v B.P. (Australia) Limited (1964) 83 W.N. (NSW) 80 ; Ryde Municipal Council v The Royal Ryde Homes (1970) 19 LGRA 321; Warringah Shire Council v Sedevic (1987) 10 NSWLR 335 (CA) DATES OF HEARING: 5/10/01, 8/10/01 DATE OF JUDGMENT: 10/25/2001 APPLICANT Mr C McEwen (Barrister) SOLICITORS Mallesons Stephen Jaques LEGAL REPRESENTATIVES: RESPONDENT Mr P McEwen SC SOLICITORS Windeyer Dibbs JUDGMENT: IN THE LAND AND MATTER No. 40165 of 2001 ENVIRONMENT COURT CORAM: Cowdroy J OF NEW SOUTH WALES DECISION DATE: 25/10/01 North Sydney Council Applicant v Nazero Constructions Pty Limited Respondent JUDGMENT Facts 1. By application class four the applicant ("the council") seeks an order restraining the respondent from undertaking further construction work which is alleged to be unauthorised, and for consequential declarations. The proceedings relate to land in strata plan 14210 known as 1A and 1B Lambert Street Cammeray ("the property"). In 1948 approval had been granted for the erection on the property of a residential brick and tile building comprising two storeys and containing two separate dwellings ("the building"). The building, known as a residential flat building or "RFB", was erected and has been standing on the property until early July 2001 when it was demolished by the respondent. 2. On 1 February 1999 the respondent applied to the applicant for development consent for the property. The proposed development ("the development") was described in the development application ("the application") as 'alterations to existing RFB and Addition of 3 dwellings/units and carparking and strata subdivision'. Plans accompanying the application show alterations to the existing building and the erection of a substantial residential building at the rear of the existing structure. 3. Following lodgement of the application the respondent discovered that the proposed vehicular access along the eastern side of the property was inadequate and required widening. Accordingly amended plans to the application were prepared which proposed the demolition of the eastern wall of the building to allow such access. 4. The applicant did not grant consent to the application and pursuant to s 82 of the Environmental Planning and Assessment Act 1979 ("the EP&A Act") a deemed refusal entitled the respondent to institute an appeal to this Court in proceedings known as 10658 of 1999. Such appeal was heard before Commissioner Murrell on 16 and 17 December 1999. The Court upheld the appeal and granted consent to the development on 23 February 2000. The relevant orders made by the Court were as follows:- 1. The appeal in respect of the property known as Nos 1A and 1B Lambert Street Cammeray be upheld. 2. The development application No. 543/99 submitted to North Sydney Council, 1 February 1999, and as amended, for a residential flat building comprising five units with parking under is approved on the basis of: the plans known as Exhibit 'B' dated October 1999 prepared by Joseph Lahoud Pty Limited; the landscape plan prepared by Jocelyn Ramsay Exhibit 'D'; and subject to the conditions contained in Annexure 'A'. The above orders are hereafter referred to as "the consent", and the plans referred to in the consent are referred to as "the consent plans". 5. The conditions in annexure A to the consent required that the development be carried out in accordance with consent plans. The consent plans contained notations which showed the extent of the proposed work and also indicated components of the existing building. Against the walls on the western side of the building the words 'existing walls' appears and portions of the building on the ground floor and the first floor are outlined in double black lines. The roof plan delineates a portion of the roof with a notation 'existing roof modified to join with new roof'. 6. On 27 June 2000 the respondent made an application ("the s 96 application") to the Court pursuant to s 96 of the EP&A Act to modify the consent. The s 96 application sought to modify the consent so that 'all the external walls and roof of the existing duplex building' could be demolished. 7. In a judgment delivered in proceedings 10658A of 1999 on 12 January 2001 Commissioner Murrell held that the Court had no jurisdiction to hear the s 96 application. Commissioner Murrell observed that the consent provided 'largely for the retention of the external envelope of the duplex, that is, the major part of the walls and roof were to be retained with significant extensions down the block to more than double its length'. Commissioner Murrell also noted that the consent was for 'alterations and additions to an existing duplex' (emphasis added) and concluded that the modified development would not be materially and substantially the same development as that for which consent had been granted by the Court. 8. In July 2001 the respondent demolished the roof, floors and virtually all of the walls of the existing building leaving only a fragment of the northern wall facing Lambert Street remaining. The issues 9. The applicant submits that such work is unauthorised by the consent and that as a consequence of the work the development cannot be carried out in accordance with the consent. 10. The respondent submits that upon a proper interpretation of the consent the respondent was entitled to demolish the existing walls of the building. The respondent also relies upon a construction certificate that has been issued by an accredited certifier pursuant to s 81A(2) of the EP&A Act as authorising the work. 11. Lastly, the respondent submits that the only document that must be construed by the Court is the consent. It submits that there is no ambiguity in the provisions of the consent and that in such circumstances the Court is not entitled to have regard to extrinsic material, such as the development application and Statement of Environmental Issues upon the principle referred to in Ryde Municipal Council v The Royal Ryde Homes (1970) 19 LGRA 321 at 323-324, namely that the approval of an application does not have the effect of incorporating into the consent all the matters set out in the application. Composition of consent 12. The orders of the Court made on 23 February 2000 comprise the consent. Order 2 of the consent specifically refers to the application and is thereby incorporated in the consent. Without regard to the application it would be impossible to comprehend the terms of the consent as the development is not otherwise identified. 13. The application refers to 'alterations to existing RFB and Addition of 3 dwellings…'. The Court can conclude that the consent entitled the respondent to execute the alterations to the existing structure as shown in the consent plans, and construct the entirely new building towards the rear of the property. Interpretation of plans 14. The consent plans support such conclusion. They contain notations which draw a distinction between new work (such as 'new walls', 'new internal stud walls', and 'new timber framed roof terra cotta roof tiles') and work to the existing building (for example, 'existing roof repaired and retained', 'existing building'). In addition the northern, western and southern walls are outlined on the consent plans in black ink except for those portions where new work is indicated. Mr Tony Jammal, structural engineer for the project, and Mr Peter Boyce, the certifying authority for the development, testified that heavy dark lines on the outline of the existing walls was a means of identifying parts of the structure which were to be retained. 15. The consent plans therefore show that the existing building was to be retained except for the eastern wall and for small portions of the western and southern walls. Construction certificate 16. The respondent submits that the construction certificate issued by the certifying authority has authorised the demolition of the external walls and the roof. Section 81A of the EP&A Act relevantly provides that:- (2) The erection of a building in accordance with the development consent must not be commenced until:- (a) a construction certificate for the building work has been issued by:- (i) the consent authority, or (ii) an accredited certifier Pursuant to cl 145(1) of the Environmental Planning and Assessment Regulation 2000 ("the Regulation") a certifying authority must not issue a construction certificate for building work unless it is satisfied of the following relevant matters:- (a) that the design and construction of the building (as depicted in the plans and specifications and as described in any other information furnished to the certifying authority under clause 140) are not inconsistent with the development. Clause 145(2) of the Regulation provides:- A certifying authority must not issue a construction certificate for subdivision work unless it is satisfied that the design and construction of the work (as depicted in the plans and specifications and as described in any other information furnished to the certifying authority under clause 140) are not inconsistent with the development consent. 17. Mr Boyce said that he regarded the word 'existing' on the consent plans to mean that such walls could be removed and replaced in exactly the same position. Mr Boyce similarly considered that the words 'retain' in relation to the roof meant that the roof could be removed but replaced with the same type of material. 18. The Court rejects Mr Boyce's interpretation. The Court is satisfied that a literal construction of the words used on the consent plans indicates an intention that the external walls and roof were not to be demolished but were to be 'retained' in the sense of 'maintained' in situ or 'kept in place'. 19. Accordingly, the Court is satisfied that demolition of the roof and demolition of portions of the walls of the building is inconsistent with the consent and is not authorised by the consent. It follows that reliance upon the construction certificate cannot assist the respondent, since it purports to authorise the carrying out of work which is unauthorised. Additional claims 20. The applicant seeks to estop the respondent from asserting that the consent authorised the demolition of those portions of the building which were to be retained. However in view of the findings already made it becomes unnecessary to decide whether estoppel, as alleged, exists and if so whether it would provide any basis for relief to the applicant. Other considerations 21. In his oral evidence Mr Jammal frankly acknowledged that he was aware that no consent existed to demolish those walls which were shown on the consent plans in heavy black ink. In May 2000 Mr Jammal had expressed his opinion that the retention of the walls of the building and roof would be extremely difficult and dangerous. He observed that the walls were cracked and lintels were rusted. He recommended their demolition. Mr Boyce also testified that the retention of such walls was impractical. 22. The respondent found itself in an invidious position. Its modification application to demolish the subject walls had failed and since the Court is the consent authority for the development the applicant could not have obtained any modification from the council. The rejection of the modification application was not made upon any environmental considerations, but upon a legal issue that the modification, if granted, would not be the same development as originally proposed. 23. The above circumstances are considered by the Court to constitute adequate reasons against making any permanent orders at this stage. The Court exercises a wide discretion in respect of the relief which it may grant: see s 23 of the Land and Environment Court Act 1979 and see also Warringah Shire Council v Sedevic (1987) 10 NSWLR 335 (CA); ACR Trading Pty Ltd and Anor v Fatsel Pty Ltd (1987) 11 NSWLR 67 (CA). Injunctive relief may not be granted when intervention is not warranted: see Attorney-General v B.P. (Australia) Limited (1964) 83 W.N. (NSW) 80 per Jacobs J at 87-88. 24. The council has conceded a lack of clarity of the consent plans. Even though this issue has been determined against the applicant, the only practical course is to allow the applicant an opportunity to seek development consent to reconstruct the demolished walls and roof of the building in the manner envisaged by Mr Boyce. Relief 25. In view of the above findings the Court grants the declaration as sought in the summons. 26. The Court will refrain from making any other declarations or orders to enable the respondent to make application to the council for approval to obtain consent for the reinstatement of the walls and roof of the building. Orders 27. The Court therefore makes the following declaration and orders:- 1. The respondent has carried out by itself, its servants or agents, development at 1A and 1B Lambert Street, Cammeray, without consent by the demolition of portions of the walls of the building formerly erected thereon and by the removal of the roof of such building contrary to s76A of the Environmental Planning and Assessment Act 1979. 2. Pending further order of the Court the respondent, its servants and agents, be and the same are hereby restrained from carrying out, causing, permitting or suffering the carrying out of any development at 1A and 1B Lambert Street, Cammeray, without development consent pursuant to the Environmental Planning and Assessment Act 1979. 3. Order that the proceedings be adjourned to enable the respondent to seek development consent for work for the reinstatement of the walls and roof of the building at 1A and 1B Lambert Street, Cammeray. 4. Matter to be listed for callover on Thursday 13 December 2001. 5. Liberty to apply. 6. Costs are reserved. 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