Land and Environment Court of New South Wales CITATION : Lovelace v Cignarella [2001] NSWLEC 261 APPLICANT Lovelace PARTIES : RESPONDENT Cignarella FILE NUMBER(S) : 40091 of 2001 CORAM: Cowdroy J KEY ISSUES: Building Approval :- LEGISLATION CITED: Environmental Planning and Assessment Act 1979 Local Government Act 1919 Cramer v Leichhardt Municipal Council [1992] NSWLEC 10; Jones v Dunkel (1959) 101 CLR 298; CASES CITED: Oshlack v Richmond River Council (1998) 193 CLR 72; Winn v Director General National Parks and Wildlife [2001] NSWCA 17; Wollongong City Council v Australian Iron & Steel Pty Limited (1988) 67 LGRA 51 DATES OF HEARING: 7/11/01 DATE OF JUDGMENT: 11/16/2001 APPLICANT Dr S Churches (Barrister) SOLICITOR Williamson Isabella LEGAL REPRESENTATIVES: RESPONDENT Mr P Moggach (Solicitor) SOLICITOR Kearns & Garside Solicitors JUDGMENT: IN THE LAND AND MATTER No. 40091 of 2001 ENVIRONMENT COURT CORAM: Cowdroy J OF NEW SOUTH WALES DECISION DATE: 16/11/01 Lola Lovelace Applicant v Antonio Cignarella Respondent JUDGMENT 1. By application class four filed on 25 May 2001 the applicant seeks a declaration that the respondent has contravened the conditions of Building Application 73/1203 ("the consent") issued in respect of land known as Lot 17 in DP 216649 or 23 Barbara Street, Warrawong ("lot 17"). The applicant also seeks orders requiring the respondent to comply with the terms of the application. Facts 2. On 1 June 1973 the Wollongong City Council ("the council") granted the consent to Mr J Caleiro to erect a 'Brick veneer dwelling and garage' upon lot 17. The consent was issued subject to the following conditions:- 1) The portion of the natural watercourse near the south/western section of the dwelling is to be piped to the satisfaction of the City Engineer. 2) No portion of the dwelling including the eaves is to encroach over the natural watercourse. 3) The eaves to be positioned at a distance of 2'3" (0.686m) from the side boundary. The applicant initially claimed that none of the three conditions of the consent had been satisfied. However, at the hearing the applicant asserted non-compliance only in respect of condition 1 and condition 3. 3. A 'Notification of Building' signed by Mr Caleiro notified the council that the dwelling would be 'ready for inspection on the 8th day of January 1974'. Another 'Notification of Building' relating to the consent, signed by Benny R Peviotta, and dated 15 July 1974 is signed in the space marked 'Office Use Only' and dated 18 July 1974. The Court infers that construction of the dwelling and garage had taken place by such dates. 4. The applicant deposed that she had lived adjacent to lot 17 since 1965 and that 'Up to the present time no portion of the creek', which is the watercourse referred to in condition 1 of the consent, had been piped by either Mr Coleiro or any successor in title. 5. The applicant submits that since the consent runs with the land it imposes a burden upon the respondent as a successor in title to comply with the conditions attached to the consent. The respondent purchased lot 17 in early 1989 from a Mr Zazoc. Condition 1: piping of watercourse 6. The applicant asserts that piping of the natural watercourse near the south western section of the dwelling on lot 17 has not been carried out and that the respondent is therefore in breach of condition 1 of the consent. The applicant submits that as no piping has been carried out, any question of the City Engineer's satisfaction cannot arise since such satisfaction is predicated upon the provision of the piping. 7. The respondent submits that there is no evidence that the City Engineer was dissatisfied with the provision of piping. Accordingly, the Court can draw the inference that if such evidence was available it would not have assisted the applicant's case: see Jones v Dunkel (1959) 101 CLR 298. 8. Further, the respondent has tendered a photograph that shows a pipe which traverses from the south-west corner of lot 17 beneath Barbara Street to an adjacent reserve. The respondent submits that such piping satisfied condition 1 of the consent. 9. The respondent also submits that the notifications to council of the finished building and request for inspections lead to the conclusion that the council was satisfied that the conditions of the consent had been observed. 10. Lastly, the respondent relies upon Building Certificate 89/61 ("the building certificate") which was issued by the council in respect of Lot 17 on 23 January 1989. The respondent submits that the issue by the council of a building certificate confirms that the council was satisfied that the conditions of consent had been fulfilled. Condition 3: eaves 11. The applicant submits that condition 3 to the consent required no part of either the dwelling or the garage be placed closer to the side boundary of lot 17 than 2'3" or 0.686m. The applicant submits that the use of the term 'eaves' in condition 3 means 'extremities' and that accordingly, the garage on lot 17 has been erected in breach of the consent since it has been constructed adjacent to the southern boundary of lot 17. 12. The respondent denies that condition 3 required that all structures erected on lot 17 should be positioned at a distance of 2'3" from the side boundaries. The respondent submits that condition 3 applied only to the dwelling and that there is no basis to equate the 'garage' with a dwelling. 13. Further, the respondent relies on the provisions of Ordinance 70 ("ordinance 70") promulgated pursuant to the LGA. Clause 6.1.(1) of ordinance 70 distinguishes between structures by defined classifications. Pursuant to cl 6.1.(1)(a) of ordinance 70 a single dwelling house is a class I building. Pursuant to cl 6.1.(1)(j) of ordinance 70 an outbuilding is classified as a class X building. The respondent submits that condition 3 of the consent obviously relates to cl 11.6(4)(a) of ordinance 70 which relevantly states:- (4) Unless a Class I building in [sic] subject to one of the exceptions set out in paragraph (a), (b), (c), (c1) or (d) of subclause (2), guttering, eaves, hoods and similar structures or attachments erected between the external plane of the face of an external wall and any boundary line shall be at a distance of not less than- (a) 675 mm in the case of a building containing one or two storeys… 14. The respondent submits that the distance of 675mm and 2' 3" or 686mm is, for practical purposes, the same and demonstrates the council was directing condition 3 to a class I building, namely the dwelling. Findings Effect of building certificate 15. The issue of the building certificate prevents the council from issuing an order for repair or demolition of the existing buildings or from taking proceedings to require the demolition, alteration, addition or rebuilding of or to the building pursuant to s 317AE of the Local Government Act 1919 ("the LGA") which was then in force. A similar provision is currently enacted as s 149E of the Environmental Planning and Assessment Act 1979 ("the EP&A Act"). However, such certificate does not operate to bar a third party from instituting proceedings: see Cramer and Ors v Leichhardt Municipal Council and Anor [1992] NSWLEC 10 per Stein J and see also Conomos v Chyssochoides [1997] NSWLEC 163 per Sheahan J. Alleged breach of condition 1 16. The Court must be satisfied that the respondent has breached the condition imposed by the LGA and that such breach continues under the EP&A Act. Such breach must be present and continuing to be capable of remedy pursuant to s 124 of the EP&A Act: see Winn v Director General National Parks and Wildlife and Ors [2001] NSWCA 17 at par [99] and par [101] per Spigelman CJ. Accordingly, to establish the alleged breach of Condition 1 the Court must be satisfied that the respondent has failed to pipe near to the south west section of the dwelling to the satisfaction of the City Engineer. 17. There is no evidence which establishes that the City Engineer is not satisfied with any aspect of the arrangements for the watercourse referred to in condition 1. 18. Nor could the Court conclude that a lack of piping near the south western section of the dwelling inevitably leads to the conclusion that the City Engineer was or remains dissatisfied. No evidence exists to justify such inference. The Court therefore cannot be satisfied upon the balance of probabilities that the respondent is, and continues to be, in breach of condition 1 of the consent. 19. The Court can also take notice of the issue of the building certificate. In the absence of evidence to the contrary, the inference can be drawn that if the council regarded any of the conditions of the consent as being unfulfilled such certificate would not have been issued. Alleged breach of Condition 3 20. The construction of a consent does not require a technical interpretation: see Wollongong City Council v Australian Iron & Steel Pty Ltd (1988) 67 LGRA 51 at 56 per Holland J. For this reason a consent should be construed according to its terms. Similarly, extraneous evidence adduced to assist in the interpretation of a consent is generally not admissible: see Ryde Municipal Council v The Royal Ryde Homes (1970) 19 LGRA 321; Auburn Municipal Council v Szabo (1971) LGRA 427; Sericott v Snowy River Shire Council (1999) 108 LGERA 66. 21. Accordingly, it would be inappropriate for the Court to read the word 'eaves' in condition 3 of the consent as meaning 'extremities of all structures' or 'extremities of the garage' as claimed by the applicant. The apparent purpose of condition 3 was to ensure that the class I dwelling on lot 17 would comply with the provisions of ordinance 70 and not that all structures on lot 17 would be set back from the boundaries by the distance specified in condition 3. Discretionary considerations 22. Even if condition 1 and condition 3 were found to have been breached, the Court is satisfied that the delay of approximately twenty years in the institution of these proceedings would not entitle the applicant to the equitable relief that has been sought. There is no evidence before the Court to show that the alleged breaches have had any adverse effect whatsoever including any impact upon the adjoining property of the applicant. Accordingly, the respondent would suffer an unreasonable burden if he were required to remedy a breach of a consent condition that has no present or continuing consequences. 23. The Court is therefore satisfied that the application for declaratory relief should be refused. In the absence of any reason to depart from the general rule that costs should follow the event (see Oshlack v Richmond River Council (1998) 193 CLR 72 at 87 per Gaudron and Gummow JJ; at 120-122 per Kirby J) the applicant should pay the costs of the respondent. Orders 24. The Court orders:- 1) The application be dismissed. 2) The applicant is to pay the costs of the respondent. 3) The exhibits 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.