Pending Appeal : 040370/08 Land and Environment Court of New South Wales CITATION : Pselletes v Randwick City Council [2008] NSWLEC 234 APPLICANT Gary Pselletes PARTIES : RESPONDENT Randwick City Council FILE NUMBER(S) : 11253 of 2007 CORAM: Sheahan J KEY ISSUES: Development Consent :- appeal against order to comply with the terms of a consent; construction of consent; unauthorised works LEGISLATION CITED: Environmental Planning and Assessment Act 1979 Environmental Planning and Assessment Regulation 2000 Clark & Davis v Wollongong City Council & Others [2008] NSWLEC 110 CASES CITED: Hurstville City Council v Renaldo Plus 3 Pty Ltd [2006] NSWCA 248 Jones v Dunkel (1958-1959) 101 CLR 298 NRS Group Pty Ltd v Cowra Shire Council [2008] NSWLEC 156 DATES OF HEARING: 14-15 August 2008 EX TEMPORE JUDGMENT DATE : 15 August 2008 APPLICANT Mr M Newman, Solicitor of Newman & Associates LEGAL REPRESENTATIVES: RESPONDENT Mr M Henry SOLICITORS Shaw Reynolds Bowen & Gerathy JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Sheahan J 15 August 2008 11253 of 2007 Pselletes v Randwick City Council EXTEMPORE JUDGMENT Introduction 1 His Honour: Mr Pselletes has brought this Class 1 appeal against an order issued by Randwick Council on 12 November 2007 that he comply with the terms and conditions of Development Consent DA/964/2006 granted on 14 December 2006. He claims the Order is "otiose, invalid and of no effect", and seeks (in his Amended Points of Claim par 12(b)) a declaration that he is entitled to rely on that consent as "approving the balcony as communicated to him". 2 The Order is made under Item 15 of s.121B of the Environmental Planning & Assessment Act 1979 ("EP&A Act"); it lists various allegedly "unauthorised works identified" by the Council; and it requires him to perform six specified tasks (see Exhibit P1). 3 During the course of some negotiations between the parties two of those six matters were "resolved" in the sense that Council does not now seek to enforce points 4 and 5, but the Council presses points 1-3 and 6, namely: · [1] Remove the brick balustrade to the unauthorised balcony that is located on the top of the concrete slab above the garage (approximately 900mm in height). · [2] Demolish and remove unauthorised concrete slab forming the roof to the garage and base for the balcony. · [3] Reduce the size of the window opening located on the northern elevation (identified as elevation 1 on the approved plans) above the garage constructed so as to be consistent with DA/964/2006 in terms of width, location and number of openings. … · [6] To satisfy the critical stage inspection requirements contained in condition No.10 of the development consent and section 109E(3) and clause 162A of the Environmental Planning and Assessment Regulations 2000 to the satisfaction of Council and the Private Certifying Authority (PCA). In this regard you are required to remove the necessary internal and external wall, floor, ceiling, cladding to enable the wall, roof and ceiling framing to be inspected. Alternatively provide certification from a suitably qualified engineer demonstrating compliance with the Building Code of Australia (BCA) and Australian Standards to the satisfaction of the Private Certifying Authority and Council. 4 In the Amended Points of Claim (par 12(a)) the Applicant seeks an order dismissing point [6]. Does the Balcony have consent? 5 The relevant consent responds to the second of three Development Applications made by Mr Pselletes to the Council in respect of renovations at his home at 93 Little Bay Road, Little Bay, purchased in September 2006. Most relevantly the second development application sought approval to construct a balcony over the garage, which really involved conversion of the flat garage roof approved by the first development consent (DA/810/2006 granted on 2 November 2006) into a balcony. 6 Mr Pselletes is an experienced person in the building industry. He says he formed the intention of having a balcony once he had approval for the flat roof, but that in any event the flat roof should, as good building practice, be constructed as a concrete slab. 7 The Council denies that the balcony proposal is covered by the second consent as granted, and Mr Pselletes asserts that it is. The Council's "fallback" position is that, if the Court upholds Mr Pselletes' contention that the balcony received Council's consent, it has not so far been constructed in accordance with it. The Council's principal contention is that the balcony conversion was withdrawn from the development application by letter from Mr Pselletes before the balance of the proposal was approved by the Council under delegated authority. 8 Mr Pselletes asserts that (1) the Council cannot attack the validity of the consent because it is protected by s.101 of the EP&A Act" (the consent having been advertised on 16 January 2007), (2) the Council breached Regulation 55 in several respects, and (3) the letter was written on a clear understanding reached with the Council's assessment officer that the balcony proposal would be referred to his superior officer as part of the application, before that officer determined it. Written submissions on his behalf ask the court to "apply its discretionary powers to set aside the order as the works challenged by the Respondent are (sic) (i) Generally comply with all relevant planning controls; (ii) Do not present any adverse environmental effect; (iii) Improvements which are beneficial to the property; (iv) Could be approved by the consent authority as complying development." 9 The assertion based on s.101 simply cannot be sustained, as the Council, in fact, relies on the consent, and the notice published does not specifically mention "balcony". See my discussion of s.101 in Clark & Davis v Wollongong City Council & Others [2008] NSWLEC 110 and NRS Group Pty Ltd v Cowra Shire Council [2008] NSWLEC 156. 10 Likewise, those assertions based on Regulation 55 also cannot succeed, as those provisions place the relevant responsibilities on the Applicant, and not the Council. 11 The discretionary and merits issues in the submissions, referred to in par [8] above, were not pursued at the hearing. 12 The result of the assertion about the letter and alleged understanding turns upon the competing versions of the conversation, given in the affidavit and other evidence by its only participants, Mr Pselletes and the Council's Mr Kaless. Mr Pselletes' version is set out in his statement of evidence dated 17 April 2008 (Exhibit C2) to which Mr Kaless responded, in terms, in his affidavit of 2 May 2008. Both gave oral evidence and were closely cross-examined. The discussion between them took place on 11-12 December 2006 and concentrated largely on submissions received from the owner of 95 Little Bay Road, Mr Scandurra, who had objected (1) to the proposed balcony on the grounds of loss of privacy, his private open space being at the front of No.95 adjacent to the garage at No.93, and (2) to the fact that the concrete floor of the balcony was poured on 27 November 2006 without Council's consent. 13 Mr Pselletes apparently sought to solve the privacy problem by suggesting, for example, the addition of a privacy screen, and Mr Kaless told him that such solutions involving revised plans would delay the grant of approval, because of the need to consult the neighbour and re-notify the (amended) proposal. If the objection could be resolved between neighbours, a further application could be lodged for the balcony, but in the meantime, it could not be approved. 14 Mr Pselletes admits he was "eager to proceed with the building works" at that time, and, whatever may have been his understanding about a later reconsideration of the balcony proposal (c.f. reconsideration at that time at a superior level in Council), he agreed to withdraw the balcony proposal in writing. Mr Kaless is quite firm in his evidence about the results of his consultation with his superior before entering the negotiations with Mr Pselletes – he says he was able to put only two options for an early approval of the other works in the subject development application, either Mr Pselletes withdrew the balcony or the Council would delete it by condition – and he is adamant he gave no indication to Mr Pselletes that the balcony could be approved at that stage. While Mr Kaless says these were alternatives, Mr Pselletes says he saw them as the Council's condition occurring as a result of the letter. 15 Mr Pselletes clearly chose the first of the two options offered to him. When Mr Kaless said to him that final approval was a question for a senior planner at Council, and not himself, that was a statement of simple fact, and not intended to give him any impression that the balcony could be approved at that time. It was, and remains, open for such a proposal to be approved once the proper assessment has been carried out. 16 In the result, Mr Pselletes wrote to Mr Kaless at Council on 12 December 2006 (Annexure "C" to Mr Kaless's affidavit) clearly withdrawing the balcony proposal. That much is admitted by the Applicant (see written submissions par 6), and the evidence establishes that that letter was received by Council on that date, that it was specifically noted as part of the proposal examined in the assessment report prepared by Mr Kaless (Annexure "D" to his affidavit, Item 3), and that it was then considered by Mr Kaless's supervisor, Mr Quinton, before he (Quinton) granted the approval on 14 December 2006. Mr Quinton had authority to reject the recommendation Mr Kaless made to him, but chose to approve it. 17 The approving authority is not restricted, as the Applicant submits, only to documents submitted "with" the development application. If that were so, approval processes of councils could hardly function. Section 80(1) of the EP&A Act mandates that Council must determine whatever is the subject of the development application at hand, by either consent or refusal. Where an amendment is made or a part is withdrawn, as allowed by the Regulation, the balance is there for decision. See Hurstville City Council v Renaldo Plus 3 Pty Ltd [2006] NSWCA 248. 18 Mr Pselletes relies on the fact that the title page of the Notice of Determination as sent to him (Annexure "E" to Kaless' affidavit) described the work approved as "alterations and additions to existing dwelling including construction of new bedroom and balcony at front of dwelling". Mr Pselletes the very next day applied for a construction certificate – he included the balcony in his application, but admitted in cross-examination that he did not inform the certifier of the letter of 12 December 2006. 19 The evidence is clear that such Notices of Determination are "automatically generated" by Council's administrative staff when the Council's decision is made, and so reflect the original proposal as entered in Council's records from the Development Application (see Item 5 of the development application in Exhibit A to Mr Kaless's affidavit), rather than the amended description on the title page of the assessment report, upon which Mr Quinton acted (p12 of Annexure "D" to the same affidavit). 20 Mr Newman submitted that I should draw a Jones v Dunkel inference from the failure of the Council to call evidence from Mr Quinton and/or any administrative staff to corroborate Mr Kaless's evidence. I decline to draw any such inference, and I accept Mr Kaless's evidence. 21 Further, I cannot see how the email and letter extracted from the Council's file and tendered by the Applicant (as Exhibit P2 and Exhibit P4) assist me in my task. 22 The authorities clearly spell out how consents are to be construed, and, once the letter of 12 December 2006 withdrew the Applicant's development application for the balcony, the Council had statutory power, indeed duty, to consent to, or refuse, only the proposal as so amended (under s.80(1)). 23 Accordingly, I hold that the works associated with the balcony do not enjoy the consent of the Council, and that the challenge to its Order based on the consent properly construed must fail. 24 Mr Pselletes subsequently made a third development application including the balcony and Council's approval DA/254/2007 specifically excluded that part of it. Clearly the approving authority does not favour the balcony proposal, at least as it has been presented thus far. The building work 25 Clearly also the construction of a concrete slab larger than the approved roof (4.6m x 5.57m c.f. 3m x 5.5m), and the widening of the garage, and the construction of glass doors opening on to the roof/balcony, all three of which are accurately depicted in the photographic exhibits included in Mr Gray's evidence, are not covered by any development consent. 26 The Applicant also admitted in cross-examination that he did at least some of these works without approval, and after, and in breach of, the "cease work" order served on him on 8 March 2007. 27 In all these circumstances the Court should dismiss the challenge by the Applicant to pars [1] to [3] of the Order (see par [3] above). 28 That leaves for consideration par [6] of the Order concerning critical stage inspections and/or certification. Certification 29 There is no evidence before the Court of any "critical stage inspections" and what evidence there is of certification is less than satisfactory. 30 The extent of building work so far carried out, and some of the council-alleged shortcomings of it, are clearly depicted in the photographic evidence. 31 Whether the Applicant likes it or not, it is a matter for the Council as building regulator to be satisfied on such matters, and not for the Court to adjudicate upon such technical issues in set-aside proceedings like this, where the evidence is necessarily limited and not free of doubt. 32 The Applicant bears the burden of satisfying the Court that he has complied with the conditions of consent, and he has not discharged that onus in this hearing. 33 The qualifications and independence of at least one certifier he engaged have been seriously questioned, and there is clear conflict between some of the photographic evidence and what is said in some of the certification evidence. 34 The Jones v Dunkel submission regarding Council's failure to call expert evidence to refute the certificates betrays a lack of understanding of these Class 1 proceedings, and I reject it. 35 The result, therefore, is that this limb of the Applicant's challenge to the Order must also fail. Conclusion and Orders 36 The Orders of the Court are: 1. The Applicant's appeal is dismissed. 2. The question of costs is reserved. 3. All 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.