Land and Environment Court of New South Wales CITATION : Sutherland Shire Council v Nader (No 3) [2007] NSWLEC 469 APPLICANT PARTIES : Sutherland Shire Council RESPONDENTS Paul Nader and Haifer Nader FILE NUMBER(S) : 41183 of 2006 CORAM: Pain J KEY ISSUES: Civil Enforcement :- finalisation of orders for demolition of unauthorised building works. LEGISLATION CITED: Environmental Planning and Assessment Act 1979 s76A Sutherland Shire Council v Nader [2007] NSWLEC 363; CASES CITED: Sutherland Shire Council v Nader (No 2) [2007] NSWLEC 438; Warringah Shire Council v Sedevcic (1987) 10 NSWLR 335 22 May 2007 DATES OF HEARING: 23 May 2007 18 June 2007 19 July 2007 DATE OF JUDGMENT: 1 August 2007 APPLICANT Mr R O'Gorman-Hughes SOLICITOR LEGAL REPRESENTATIVES: Home Wilkinson Lowry RESPONDENTS Mr M Seymour SOLICITOR Burrell Solicitors JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Pain J 1 August 2007 41183 of 2006 Sutherland Shire Council v Paul Nader and Haifer Nader (No 3) JUDGMENT 1 Her Honour: Further to my two previous judgments in these proceedings Sutherland Shire Council v Nader [2007] NSWLEC 363 and Sutherland Shire Council v Nader (No 2) [2007] NSWLEC 438 I must finalise orders requiring the demolition of unauthorised building works carried out by the Respondents on the roof at their property 10 McPherson Place Illawong, being an airconditioning room and part of a plant room. Further evidence filed by the parties since my first judgment has clarified that compliance with the development consent DA 03/0981 granted by the Council means the area of the plant room must be substantially reduced. Additionally, the height of the plant room is higher than the height allowed by the development consent. I made orders allowing additional evidence to be filed relating specifically to the impacts of demolition of part of the plant room on the existing lift shaft already built, and the parties have filed additional affidavit evidence. 2 The Respondents relied on an affidavit of Mr Finn, architect, dated 2 July 2007. According to Mr Finn's affidavit if the Court orders demolition of all the built structure on the Respondents' rooftop not included in the development consent, this would result in the lift shaft plant room being reduced to 4.5m by 6m and the height being reduced by approximately 1000mm. This would require the lift shaft already built to be altered. In Mr Finn's opinion the Court could make orders which would significantly reduce the size and bulk of the structures on the roof but still allow the working of the lift as built. 3 Annexure 8 to Mr Finn's previous affidavit dated 6 June 2007, read on a previous occasion, is a letter from the company which installed the lift. The letter states that the lift has been built to open and close on five levels of the building including the rooftop. According to the letter from the lift company, if the height were to be reduced to less than 2550mm this would mean that: (i) the lift could no longer operate to the top level; (ii) the lift shaft would have to be reduced in height which would involve cutting and removing the tower frame, glass panels and internal rails, removing and relocating fixing points; (iii) the hydraulic piston (ram) which has a 6m extension would have to be replaced with a shorter ram; (iv) the computer would have to be reprogrammed to operate the lift on four levels; (v) the cost of this modification would be in the order of $15,000 (indicative cost only, work would be billed at actual cost of parts and labour). The letter also states on p 2 that: I have been asked whether it is necessary for the lift to operate to the top level. Operationally, the lift could be modified to exclude the top level if modifications are made as stated. However, having the lift to the roof level would be useful for transporting equipment and personnel for maintenance purposes. 4 Mr Finn in his second affidavit (2 July 2007) proceeds on the basis that: (a) it is advisable that the lift shaft as constructed should remain; (b) the airconditioning room and the bulk of the plant room which have been constructed without consent should be removed; (c) what building structures remain are reasonable and result in works and costs proportionate to the extent of the breach found by the Court to have occurred, in his opinion. 5 He attaches a plan, Appendix A, to the affidavit which identifies the area of the plant room which in his opinion is reasonable to be retained. This has an area about one-third larger than that approved in the development consent DA 03/0981 and has a height which means the lift remains as built. 6 The larger size of plant room recommended by him relates to an order for demolition of the adjoining airconditioning plant room. Mr Finn considers that it would be preferable to retain part of the unauthorised wall on the western side adjoining the current airconditioning room as this would maintain the common wall with the larger adjoining plant room. This would reduce potential penetration by stormwater as the vertical duct now built to house the ducting from the airconditioning system which will be uncovered would continue to be half enclosed. Some additional work to protect the lift shaft would still be required but this would be less. 7 Mr Finn estimates that the demolition costs of his Annexure A plan would be approximately $48,000. His proposals to allow the plant room to be reduced but not exactly in accordance with the development consent mean that the reconstruction costs necessary to make the whole building safe and weather tight would be reduced to approximately $6,000 from approximately $20,000. 8 In the affidavit of Ms Pinfold, Council's town planner, sworn 18 July 2007 she confirms her previous affidavit evidence that the use of the rooftop as a recreation area was not sought in the development application and has not been approved by the Council. That is also a finding I made in my first judgment. If the lift shaft remains as constructed it would allow the occupants of the building to access the roof level and would still encourage the use of the roof level for that purpose. The use of the rooftop for recreational activities would adversely impact on the privacy and amenity of adjoining properties as identified in Ms Pinfold's earlier affidavit and the affidavit of the neighbour Mr Daboussi sworn 22 May 2007, read earlier in the proceedings. 9 The affidavit of Mr Greig, Council's Environmental Assessment Advisor, sworn 18 July 2007, responds to the letter from the lift company at Tab 8 of the exhibit in Mr Finn's first affidavit to the effect that there is no planning or Building Code of Australia (BCA) requirement to provide lift access to the roof. It is not reasonable or necessary for the lift car to proceed to the roof level and allow for the doors to open onto that level. The elevations in the approved plans do not show any doors from the lift car opening at the roof level. He also expresses concern that having the lift access the roof would encourage its use as a roof terrace. 10 In response to Mr Finn's second affidavit of 2 July 2007, Mr Greig stated that the lift shaft and altered rooftop structures could be removed without water entering into the building. If works are undertaken in accordance with proper building practice there is no reason why such works could not be undertaken, and would be similar to the common event of alterations and additions to existing dwellings requiring temporary waterproofing of exposed areas. In relation to the removal of the airconditioning room he stated there are temporary waterproofing solutions that could be utilised to prevent the penetration of stormwater during its removal and that such solutions are commonplace in the building industry. Conclusion 11 One of the key issues in this case has been that there is no development consent for the use of the roof as a terrace as I held in my first judgment. The Council has therefore argued that there is no reasonable basis to allow the Respondents to maintain the lift shaft at its current height, which is not in conformity with the development consent. I agree. For the reasons identified in my first judgment, in which I considered the exercise of discretion as identified in Warringah Shire Council v Sedevcic (1987) 10 NSWLR 335 in relation to whether demolition orders ought be made, I consider the development consent DA 03/0981 should be generally complied with. 12 Leaving the lift shaft as built would encourage the use of the roof by future occupants of the house, a highly undesirable outcome. I consider the height of the plant room as provided in the development consent should be maintained. I will allow the small increase in size referred to in Mr Finn's Annexure A in relation to the area of the plant room to aid in the protection of the building in relation to the airconditioning duct. 13 While the orders for demolition involve the Respondents in considerable cost that is a direct result of their own actions in not complying with the development consent. I will allow 90 days for the work to be undertaken. 14 In relation to the height of the plant room referred to in the orders, I note that the description of height in the draft orders handed up by the Council has varied in the course of the proceedings. There is more than one way the height can be described because of the form of the development consent plans approved. It is my understanding that the most recent form of the orders filed by the Council on 19 July 2007 is to be preferred as it provides the maximum height available to the Respondents under the development consent and I will therefore adopt those orders with some amendment. Orders 15 The Court makes the following orders: 1. A declaration that the Respondents have, contrary to s 76A of the Environmental Planning and Assessment Act 1979, carried out development (the unauthorised works) at Lot 32 DP 718714 otherwise known as 10 McPherson Place, Illawong (the subject property) for which development consent was required, otherwise than in accordance with development consent DA 03/0981. 2. An order that the Respondents, within 90 days, demolish and remove the unauthorised works at the subject property, by: (i) removing the top of the parapet that exceeds 750mm above the top of the first floor ceiling slab; (ii) removing those walls and areas of roof marked in hatching on Annexure A to Mr Finn's affidavit of 2 July 2007; (iii) reducing the height of the walls marked in cross-hatching on Annexure A of Mr Finn's affidavit sworn 2 July 2007 to no more than 2000mm above the top of the first floor ceiling slab; (iv) removing the roof and any other associated structures which exceed a height 2000mm above the top of the first floor ceiling slab; (v) remove all water closet plumbing connections and pipes to the roof. 3. The Respondents pay the Applicant's costs of the proceedings and of the Respondents' application on 18 June 2007. 4. The exhibits are to be returned. 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