Land and Environment Court of New South Wales CITATION : Council of the City of Sydney v Boutros [2009] NSWLEC 116 APPLICANT Council of the City of Sydney PARTIES : FIRST RESPONDENT Anthony Boutros SECOND RESPONDENT The Estate of the Late Helena Zupan FILE NUMBER(S) : 41002 of 2008 CORAM: Sheahan J KEY ISSUES: INJUNCTIONS AND DECLARATIONS :- work done without consent, Council orders, failure to respond to proceedings in any way, hearing ex parte, discretion, costs Environmental Planning and Assessment Act 1979 LEGISLATION CITED: Uniform Civil Procedure Rules, Rule 7.10(2) South Sydney Local Environmental Plan 1998 Sydney Heritage Development Control Plan 2006 DATES OF HEARING: 13 July 2009 EX TEMPORE JUDGMENT DATE : 13 July 2009 APPLICANT Ms M Snell, Solicitor of LEGAL REPRESENTATIVES: Council of the City of Sydney RESPONDENT No appearance JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Sheahan J 13 July 2009 41002 of 2008 Council of the City of Sydney v Boutros EXTEMPORE JUDGMENT 1 His Honour: These are class 4 enforcement proceedings concerning premises at 84 Great Buckingham Street Redfern. 2 The premises are located within the residential zone 2(b) under South Sydney Local Environmental Plan 1998, where even dwelling house alterations or additions require development consent unless the application is a simple case of, to use the vernacular, replacing "like with like". The residence on this site is seen as a "contributory building" in a historical precinct "CA42 Redfern Estate" under City of Sydney Heritage Development Control Plan 2006 (see the various instruments in Exhibit C2, tabs 1 to 3, fols 1-110). 3 Shortly after the summons was issued on 3 October 2008, against the two respondents as registered proprietors as tenants in common in equal shares (Exhibit C2, fol 111), it became clear that Ms Zupan had died on 24 June 2006 (Exhibit C2, fol 136), apparently appointing Mr Boutros her executor, and I granted leave on 27 February 2009 for Council to proceed pursuant to Rule 7.10(2) of the Uniform Civil Procedure Rules in the absence of any representation of her estate. 4 A hearing was fixed for 30 April and directions were given, but there was no appearance by or on behalf of either respondent on that hearing date, and the Council was reluctant to seek to proceed "ex parte". Comprehensive directions were given regarding ensuring that notice reached the first respondent that the court might so proceed on the next occasion. Costs of that hearing on 30 April 2009 were reserved. 5 Mr Boutros has chosen to file no documents and neither to appear nor send a representative on six occasions prior to today. In fact, Mr Boutros has appeared only on the first return date, but from time to time, he has explained his non-attendance with medical certificates. He was on notice that the matter was fixed again for hearing today. 6 There has been no appearance by or for the respondents, but various Council officers have had personal contact with Mr Boutros, his doctor, a solicitor apparently instructed by him to handle the second respondent's estate, and at least one associate of Mr Boutros (a Mr Rami Srour), who has from time to time communicated with Council on his behalf. 7 In all the circumstances, the court decided this morning that it was appropriate to grant Council's application for leave to proceed ex parte today. I am satisfied on the evidence that Mr Boutros is aware that that was a likely course, and also that he is aware that orders (including for costs) may be made against him in his absence. 8 I turn, therefore, to Council's evidence, all of which has been served on Mr Boutros. 9 This is not a case where there is some minor dilapidated building work causing an eyesore or even physical danger to persons. It is a case of (1) substantial building work being done without consent, in circumstances where the respondent not only knew consent is required, not only knew that Council might be reluctant to grant consent, but knew that consent had been specifically refused for a similar project in the past, and (2) Council's orders for removal of the unapproved works having been studiously ignored for many months. 10 The proceedings followed an investigation commenced on Council's receipt of a complaint on 23 November 2007. The roof of the kitchen at the rear of the subject premises had been replaced with a tiled patio with a permanent roof or pergola or canopy over it, constituting a second storey. Mr Boutros conceded to Council officer Bradley Jones on 27 November 2007 that he did those works when there had been rain leaking into the kitchen. 11 An order under s 121B(2)(a) of the Environmental Planning and Assessment Act 1979 was issued on 15 May 2008 (Exhibit C2, tab 8), pursuant to a notice given to the respondents on 23 January 2008 (Exhibit C2, tab 7), which brought no response. A letter of demand was sent on 25 June 2008. 12 Council's evidence includes photos taken on 27 November 2007, 10 April 2008, 17 June 2008, 8 August 2008, 28 April 2009 and 7 July 2009. The appearance of the subject works is unchanged over that range of dates. 13 During a visit by two Council officers (Jones and Pignone) on 24 October 2008 it was made clear that the structure above the kitchen roof line (now the slab of the tiled patio) required Council approval, and had to be removed, and that Mr Boutros could then make a development application to erect a roof of some sort. If that occurred, there would be no further action taken by Council in these proceedings. On 28 April 2009 he told the same officers that he did "not refuse to take it down … but I can't find anyone to do it". It was made clear that he had to have it taken down, and was responsible to pay any costs involved. 14 The respondents had lodged a building application in December 1985 to make the kitchen structure two-storey. It was refused, and they were so notified on 7 February 1986. On 30 May 1986 the first respondent was clearly told that simple replacement of the existing structure would not require development consent. Building approval for such a project was given on 13 June 1986. He got an extension of time on 13 July 1987 for 12 months but did not act on the approval. A further building application dated 22 February 1991 was approved for a one-storey replacement structure on 28 March 1991. 15 Council's materials include indicative expert planning assessments of the works as carried out, and two assessing officers have separately found them objectionable – they are considered "aesthetically unacceptable", they raise "significant privacy concerns"; they are "not in character with the surrounding built environment"; they offend the size limitations in Council's 1997 DCP; and they also offend (as earlier noted) the provisions of Council's Heritage Development Control Plan 2006. (See Annexure 'D' to Jones' affidavit of 9 January 2009, and par 31 of Solomon's affidavit of 8 January 2009). 16 Clearly the respondents have failed to comply with the s 121B order and the Council is entitled to the relief sought in the summons. Both Council and the court have afforded Mr Boutros many opportunities to regularise his position, and deal with these proceedings, and with the illegal structure. He has been served with all the Council's documentation. 17 Regrettably, he has not responded in any way, and some 14 months has now passed since the order was served. Even direct negotiations with Council officers have not brought any action on his part. He has chosen not even to put before the court any evidence or submissions in support of the exercise of the court's discretion in his favour, but the court is mindful (1) that he lost his life partner of 40 years standing (the second respondent) not so very long ago, (2) that English is not his first language, and (3) that both the court and the Council have been provided with medical certificates from time to time indicating that he has a range of medical problems. 18 Nonetheless, I am satisfied that he knew or ought reasonably have known, since 1985, that Council's consent is required for works of the type he carried out prior to or during November 2007, and that he probably knew that he would be unlikely to obtain consent. He was told in person in October 2008 that Council would entertain a development application for such works, if the illegal structure were removed. He has flagrantly disregarded the Council's concerns. 19 The court's discretion should clearly be exercised in Council's favour, and I make the following declaration and orders: 1. A declaration that the Respondents have failed to comply with the terms of the Order dated 15 May 2008 and served on the Respondents by the Applicant pursuant to Section 121B of the Environmental Planning and Assessment Act 1979. 2. An Order that the Respondents comply with the terms of the said Section 121B Order within 28 days of the date of this order, or such other period of time as the Court orders. 3. An Order that the Respondents pay the Applicant's costs of these proceedings, including those reserved on, and in respect of proceedings on, 30 April 2009, as agreed or assessed. 4. The Council is granted liberty to apply on seven days notice. 5. Exhibit C1 and Exhibit C2 may be returned. 20 I will publish these reasons overnight. 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