Reported Decision : (2001) 113 LGERA 207 New South Wales Court of Appeal CITATION : FALAMAKI v WOLLONGONG CITY COUNCIL [2001] NSWCA 55 FILE NUMBER(S) : CA 40154/99 HEARING DATE(S) : 22 September 2000 JUDGMENT DATE : 4 April 2001 Masood Falamaki PARTIES : v Wollongong City Council JUDGMENT OF : Priestley JA at 1; Handley JA at 2; Powell JA at 38 LOWER COURT JURISDICTION : Land & Environment Court LOWER COURT LEC 40091/95 FILE NUMBER(S) : LOWER COURT Talbot J JUDICIAL OFFICER : COUNSEL : Appellant - in person Respondent - C McEwen/F Austin SOLICITORS : Appellant - in person Respondent - Peedom Brodie & Ward CATCHWORDS : PRACTICE AND PROCEDURE - Land and Environment Court - Land and Environment Court Act, s 58 - no appeal as of right where decision is not final LEGISLATION CITED : Land and Environment Court Act Local Government Act 1993 (as amended) CASES CITED: Southern Cross Exploration NL v Fire and All Risks Insurance Company Ltd [No 2] (1990) 21 NSWLR 200 DECISION : Leave to appeal refused. Appeal dismissed. Orders made THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL 40154/99 LEC 40091/95 PRIESTLEY JA HANDLEY JA POWELL JA 4 April 2001 MASOOD FALAMAKI v WOLLONGONG CITY COUNCIL PRACTICE AND PROCEDURE - Land and Environment Court - Land and Environment Court Act, s 58 - no appeal as of right where decision is not final The appellant was constructing a dwelling house for which a permit had been granted by the respondent subject to specified technical requirements. Disputes arose over the extent of the appellant's compliance with those requirements. These resulted in three hearings before Talbot J in the Land and Environment Court who made an order for the demolition of the unfinished dwelling but suspended it on conditions. The appellant appealed as of right under s 58 of the Land and Environment Court Act. HELD: refusing leave to appeal: (1) An appeal as of right under the Act only lies from final orders. The order for demolition which was suspended on conditions was an interlocutory order and leave to appeal was required. (2) No basis was disclosed for the Court granting leave. (3) The Court should order that the times for compliance with the conditions on which the demolition order had been suspended be extended in line with those allowed by the Judge. (4) No order as to costs should be made in favour of the respondent which had not objected to the competency of the appeal. ORDERS (1) Leave to appeal refused; (2) Appeal dismissed as incompetent. (3) No order as to costs. (4) The times specified in para 2 of the orders of the Land and Environment Court of 17 February 1999 are extended as follows: (a) Order 2(i) to 9 May 2001. (b) Order 2(ii) to 6 June 2001. (c) Order 2(iii) to within 2 months of lodgment of the working drawings and certificate referred to in Order 2(i) subject only to any reasonable extension of time to take account of wet weather. (5) Liberty to apply to the Land and Environment Court. THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL 40154/99 LEC 40091/95 PRIESTLEY JA HANDLEY JA POWELL JA 4 April 2001 MASOOD FALAMAKI v WOLLONGONG CITY COUNCIL JUDGMENT 1 PRIESTLEY JA: I agree with Handley JA and support the making of the orders he proposes. 2 HANDLEY JA: This is an appeal as of right from 3 decisions of the Land and Environment Court given by Talbot J on 19 June and 5 November 1998 and 17 February 1999. The proceedings relate to a substantial but unfinished dwelling house which was being constructed by the appellant at 12 Arter Avenue, Figtree, a sloping block of land situated on part of the Wollongong escarpment. 3 On 8 December 1995 the Council granted Dr Falamaki a building permit for the construction of a dwelling house on his land "in accordance with the Local Government Act 1993 (as amended) and plans and specifications stamped and numbered as above". The permit was subject to the following relevant conditions: "6. All proposed building works must comply with the recommendations of the Geotechnical Engineer's report No. SCL5000/1-65 dated 30 October 1995. 7. Before construction is commenced, plans and specifications prepared and endorsed by a suitably qualified and approved structural engineer shall be submitted to, and approved by, Council for all reinforced concrete floor slabs, the footings of the proposed structure, proposed retaining walls, the proposed works required to stabilise the rock and excavation and all structural steelwork". 4 The geotechnical report dated 30 October 1995 had been prepared by Mr Welham of Coffey Partners International Pty Limited (the Coffey report). It was prepared after Mr Welham had carried out a test pit investigation of the block to assess the risk of slope instability. The report recommended some geotechnical constraints for the site development in the light of the assessed risk of slope instability. Three test pits had been excavated to maximum depths of 2.9 metres to expose the weathered bedrock and the overlying soils in which some minor slope instability had been previously noted. 5 The report contained details of the material excavated from the test pits which showed that very low to low strength shale had been encountered at test pit 1 from 2.7 metres and in test pit 2 at 2.6 metres. Test pit 3, lower down the site, revealed extremely weathered, very low strength mudstone from .5 metres to 1.5 metres. The report continued: "It is understood that the proposed development comprises the construction of a split level residence with minimum disturbance of natural ground and with foundations taken to rock … Based on the above investigation, the risk of slope instability on the site has been reassessed to one of medium risk, and the lot is considered suitable for residential development following the guidelines for hillside development in Table 2 attached, and the specific geotechnical constraints listed below: · House foundations to be socketed at least 300 mm into intact, tightly jointed rock (an allowable bearing pressure of 400 kPa is appropriate). · …. · Temporary excavations up to 2.5 m high may be battered (with all excavations to be permanently supported by a retaining wall). · …". 6 A map attached to the report showed the location of the test pits. Table 1 attached to the report explained the implications for development of the classification of the site as having a medium risk of instability as follows: "Development restrictions may be required. Engineering practices suitable to hillside construction necessary. Geotechnical investigation may be needed. Risk after development generally no higher than usually accepted". Table 2 attached to the report contained guidelines for hillside construction with separate columns for good engineering practice and poor engineering practice. Under the heading "Earthworks" in the good engineering practice column appeared: "Retain natural contours wherever possible. Cuts minimise depth …". Under the column for poor engineering practice appeared: "large scale cuts and benching". Under the reference to foundations in the good engineering practice column appeared: "Support on or within rock where practicable". 7 The building plans stamped by the Council pursuant to the approval included plan 7 which showed a profile of the proposed building to scale against the natural slope of the land. The building was shown as resting on piers above the natural slope except in two places where the slope had been cut. The height of the largest cut, as scaled, was some 2 metres. The plan also showed the levels above Australian Height Datum, the level of the two cuts being +98 AHD and +103 AHD respectively. 8 As required by condition 7 of the building permit, Dr Falamaki lodged engineering plans on 22 October 1996 under cover of a letter of the same date. The letter stated that the design provided for the lateral loads from soil creep to be transferred through the retaining walls to the steel structure, and then through the foundations to the bed rock. The letter continued: "… an examination of the Geotechnical Report indicates that the location of solid bed rock with a strength of at least 400 kPa, in most places is at a depth of at least 3.5 meters. Therefore, it was decided to perform the excavation in a few stages, …". 9 The foundation plan and details lodged with the letter showed finished floor levels (the level reached by the excavation) at 3 points up the block at RL 98, RL 99.2 and RL 100.2. These levels involved a drastic excavation of the site to a depth of nearly 6 metres at the higher end. Excavation to this extent had not been contemplated by the Coffey geophysical report or condition 6, but the discrepancies were not noticed and the Council approved and stamped the plans. 10 Talbot J found that the excavation, which commenced in December 1996 and was completed in January 1997, was carried out in accordance with the engineering plans and that finding was not challenged by the Council. The Council's stamp on the engineering plans stated that their approval was "subject to compliance with … any conditions imposed on Building Permit". Moreover, as the Judge found, the approval of structural plans which are inconsistent with an approved building permit cannot have the effect of amending the building permit unless they are lodged for this purpose. Dr Falamaki had to make a separate application to the Council to obtain authority to carry out the work in a different manner to that disclosed by the approval plans and required by the Coffey report, but no such application was ever made. 11 On 4 December 1996 Dr Falamaki lodged amended architectural plans which were approved and returned under cover of a letter of 22 January which stated: "The conditions relating to this amended approval are unchanged from those provided with the original application". On 14 February Dr Falamaki lodged amended engineering plans for the foundations which for the first time showed a pier and beam configuration across the block and enlarged footings. These were stamped and approved and an inspection of the footings by Council's environmental health and building officer followed on 20 February. This resulted in a request by letter of 21 February from the Council for Dr Falamaki to provide engineer's certification of the footings and retaining walls. There was also a request that he advise Council on completion of the work. Work proceeded on the site until a further inspection by the Council on 17 April stirred it into action and proceedings in the Land and Environment Court followed on 24 April to restrain further construction work and for other relief. 12 In his first judgment of 19 June, 1998 Talbot J found that the excavation was not carried out in accordance with the Coffey report, and that the siting of the building in relation to the natural ground level, and the extent of the excavation, departed substantially from the 1995 approved plans. He also found that Dr Falamaki had acted in good faith and had been entitled to assume that he had received the approval of the Council to proceed to excavate down to the level shown in the engineering plans approved on 23 October 1996. 13 The Judge was satisfied on the expert evidence that the building could be completed in a way that ensured that the applicable loads were supported and the site made safe from land slip. Accordingly in the exercise of his discretion he stated that he would dismiss the proceedings on condition that Dr Falamaki provided independent certification of the engineering specification of the structure and the associated retaining system and details, in a form that had been agreed upon by the parties, within 3 months. The proceedings were then adjourned until 30 September. 14 Dr Falamaki obtained a certificate from D'Amici Colombo Pty Limited which was produced to the Court on 14 October. It was qualified in respect of the northern and southern retaining walls and did not attach or identify the calculations or retaining wall designs upon which the certificate was based. This led to further proceedings before Talbot J and his decision of 5 November. The principal matter still in dispute was the subject of independent certification which Dr Falamaki opposed because of the cost, maintaining that, as a suitably qualified engineer, he should be able to give the necessary certificate. The Judge however ruled that the certificate should be provided by an independent engineer. He made an order for the demolition of the partly constructed building and the restoration of the land but suspended it subject to compliance with 4 conditions. 15 These required the lodgment by 12 November 1998 of a certificate in the form provided by D'Amici Colombo Pty Limited on 16 October with the calculations and design documents referred to therein attached, the lodgment of working drawings with the Council on or before 4 December accompanied by a certificate by a suitably qualified and independent structural engineer, the completion of all structural works necessary for the support of the adjacent land by 5 April 1999, and the provision of a certificate to the Council that the structural works had been erected in accordance with the certified working drawings. 16 Dr Falamaki complied with the first condition but on 30 November he filed a notice of motion seeking an extension of time for compliance with the second. This could not be heard in December and was adjourned to 1 February 1999. On 25 and 27 January drawings and an engineer's certificate were lodged with the Council which did not comply with condition 2. On 17 February Talbot J delivered his third judgment. He rejected an application by Dr Falamaki that he disqualify himself for apprehended bias and prejudgment. He then confirmed his previous order for demolition, but suspended it on 5 revised conditions. These required the lodgment of specified working drawings certified by a suitably qualified and independent structural engineer by 3 March and the lodgment of the remainder so certified by 31 March. Work was to be commenced by 3 April and completed within 6 months subject to allowances for wet weather. A clearing certificate was also required. At the same time the Judge disposed of all outstanding questions of costs. 17 On 15 March Dr Falamaki filed a notice of appeal from the Judge's decision of 17 February and the orders, described as final orders, made on that date. The proceedings were in Class 4 of the Court's jurisdiction and s 58(1) of the Land and Environment Court Act confers a right of appeal to this Court from decisions in such proceedings. However s 58(3) provides: "Notwithstanding sub section (1), an appeal against an interlocutory order or decision, or an order or decision as to costs only, shall not lie to the Supreme Court … except by leave of the Supreme Court". 18 The first decision of 19 June 1998 was clearly interlocutory because the only order made was for the proceedings to be adjourned. The orders of 5 November 1998, and the orders of 17 February 1999, except those as to costs, were also interlocutory. The orders for demolition might appear to be final in form, but no date for compliance was fixed, and they were suspended, subject to conditions, and would never be carried out if those conditions were complied with. Indeed the orders of 5 November and 17 February stated in terms that the order for demolition "is suspended and to have no effect until further order". It is clear therefore that the orders cannot be final. See generally Southern Cross Exploration NL v Fire and All Risks Insurance Company Ltd [No 2] (1990) 21 NSWLR 200. The appeal was therefore incompetent and Dr Falamaki required leave to appeal in accordance with s 58(3). The Court treated the appeal as an application for leave and heard full argument so that it could determine the appeal, without a further hearing, if leave were granted. 19 The grant of leave to appeal is in the discretion of this Court, but the general principles that apply are well settled. An applicant for leave to appeal from an interlocutory decision must show an arguable case that the decision was affected by some error of principle or other miscarriage, and that significant prejudice will be suffered if the decision is allowed to stand. The Court does not normally grant leave to appeal in order to re-exercise the judicial discretions of the primary Judge, or to review findings of fact which are supported by evidence. 20 The principal ground of appeal was that Talbot J erred in finding that condition 6 of the building permit had been breached. However proof of this would not assist Dr Falamaki as the Judge also found that the siting of the building in relation to the natural slope, and the extent of the excavation, departed substantially from the 1995 approved plans. This is graphically demonstrated by Ex H which is a copy of approved plan 7 which also shows the profile of the actual excavation in relation to that originally proposed. 21 Dr Falamaki's written submission showed that he understood the importance of this and he argued (para 8.2.3 of his submissions of 5 October 2000) that plan 7 was "deficient and therefore due to its deficiency it has no legal value and it cannot be a reflection of the building permit". He sought to establish this by arguing that condition 6 required the footings to be socketed into tightly jointed rock which could only be accessed by excavation to a depth of between 2.9 and 7 metres. According to his argument because plan 7 only allowed excavation to 2 metres, it therefore "does not comply with condition 6". 22 The argument failed at the outset because the building permit required the work to comply with both condition 6 and the approved plans. Dr Falamaki also failed to established that Talbot J was wrong to find a breach of condition 6. The Judge found that none of the specific constraints listed in the Coffey report had been breached, but that recommendations that there be "minimum disturbance of natural ground", and, from the guidelines in table 2, that the depth of cuts be minimised, and large scale cuts avoided, had been disregarded. Excavations to the depth undertaken by Dr Falamaki were a clear breach of the requirement in condition 6 that the work must comply with these recommendations. 23 Dr Falamaki sought to displace these conclusions by arguing that rock of the required strength to support his foundations could not be found at higher levels. Accordingly, he submitted, compliance with the first specific constraint in the Coffey report that "House foundations to be socketed at least 300 mm into intact, tightly jointed rock" required the depth of excavation that in fact occurred. Even if this were correct, condition 6 required the building works to comply with all the recommendations in the report, not just some of them, particularly not just those selected by Dr Falamaki. If compliance with all the recommendations proved to be impossible, the obligation of the builder, such as Dr Falamaki, was either to abandon the project or to apply to the Council for an amendment of the building permit. 24 In any event, the Coffey report (p 1) makes it clear that the 3 test pits had been excavated "to maximum depths of 2.9m to expose the weathered bed rock", which the test results showed (p 2) comprised "very low to low strength shale". The clear effect of the report was that rock of that quality was "intact, tightly jointed rock", was bed rock, and had the appropriate bearing pressure of at least 400 kPa. 25 There is no suggestion that Dr Falamaki had any other geotechnical investigations carried out before the excavation work commenced. Before this was done he drafted, and had the Council approve, the engineer's plans submitted with his letter of 22 October 1996. These plans, when properly analysed, showed that a single, substantial cut would be excavated on the site, with 3 benches and two risers, to a depth of nearly 6 metres at the higher end. In other words Dr Falamaki's massive excavation was planned in advance, and was not an unplanned response on his part to difficulties with rock strength encountered when undertaking the type of excavation envisaged by the Coffey report and plan 7. 26 Dr Falamaki sought to justify this approach to the site on technical engineering grounds. He argued that rock of the kind encountered at 2.9 metres in the test pits would not provide the shear strength required to retain the building supported on his pier and beam foundations against land slip. The recommendations in the Coffey report, particularly those based on the guidelines for hill side development in table 2, were based on a paper "Geotechnical Risks Associated with Hill Side Development" published in "Australian Geomechanics News No. 10" 1985 (Walker et al). 27 Dr Falamaki argued that the recommendations in this paper were flawed and this had been recognised in the latest paper prepared by the Sub Committee on Land Slide Risk Management of the Australian Geomechanics Society published in March 2000. Dr Falamaki may be quite correct in these respects and it may be that his design shown in the October 1996 plans was the only solution which would ensure that the building could withstand the stresses that would be produced by a land slip. It is also possible that the recommendations in the Coffey report, based as they were on the 1985 paper by Walker et al, were inadequate. 28 The Court is in no position to pass judgment in these matters and they are irrelevant for the purposes of Dr Falamaki's application for leave to appeal. The crucial document is the building permit and the Coffey report which is incorporated in it. This gave Dr Falamaki permission to build on this site, and without that permission building work would have been illegal. The building authorised by the permit was defined by the approved plans and the conditions of the permit. A building substantially different from that defined by the permit was not authorised and would be illegal. 29 The fact, if it be the fact, that the building permit was based on flawed geomechanics, and consequently a flawed understanding of the strength of the foundations required on this site, does not alter the terms of the permit. Those defects, if established to the satisfaction of the Council, might induce it to allow amendments to the approved plans and the conditions of the permit, but they cannot of themselves alter its terms. 30 If a building owner in the position of Dr Falamaki considers that a building constructed in accordance with the approved plans and conditions of the permit would not be safe and should not be constructed, he can either abandon the project or seek council approval for the necessary changes. He is not free to modify the approved plans, ignore the conditions, and proceed to erect a building in accordance with his own ideas, however expert, of what is necessary to achieve safety. 31 There is therefore no basis for this Court granting Dr Falamaki leave to appeal from the decisions of 19 June, 5 November and 17 February in so far as they dealt with the building permit and its breach. The Judge's decision of 17 February, in so far as it dealt with the form of relief, and the conditions on which the order for demolition would be suspended, involved the exercise of a judicial discretion. The only substantial complaint by Dr Falamaki about these matters was directed to the Judge's requirement for independent professional certification of the engineering design and construction. Compliance with these requirements will impose a significant cost burden on Dr Falamaki, but that does not establish error. The Judge was clearly entitled to require independent professional certification and no basis has been shown for interfering with his decision on these discretionary matters. Dr Falamaki also challenged the Judge's decision refusing to disqualify himself, but failed to establish any error of fact or principle in this part of the decision. 32 The remaining question concerns the orders for costs made on 17 February 1999. These also involved the exercise of a judicial discretion by the primary Judge who was far better equipped than this Court to deal with the questions of costs raised by proceedings heard by him. If Dr Falamaki had succeeded in reversing any of the Judge's decisions on the substantive questions, he would also, to that extent, have succeeded in displacing the Judge's costs orders, but he has failed on the substantive questions. In my judgment no independent grounds for attacking the costs orders have been made out, and leave to appeal should therefore be refused on all issues. 33 Mr McEwen, who appeared for the Council, invited the Court (T 57), if it found against Dr Falamaki, to grant further time for compliance with the conditions on which the order for demolition made on 17 February 1999 had been suspended. It was common ground that they had not been complied with, and the order for demolition had not been carried out. Dr Falamaki did not object to this. An informal stay of proceedings has been in place since the notice of appeal was filed. If this Court had made an order staying proceedings it would clearly have had power to extend the time for compliance with the conditions if leave to appeal were later refused or an appeal dismissed. The position cannot be different where an informal stay of proceedings has been in place. This Court should therefore order that the times for compliance with the conditions be extended in line with those allowed by the Judge. 34 There only remains for determination the order for costs that should be made in these proceedings. Dr Falamaki's appeal was clearly incompetent, but the Council failed to object to its competency as required by SCR Pt 51 r 25(1). Sub r (2) provides that if a respondent fails to comply with sub r (1), and the appeal is dismissed as incompetent, he shall not, unless the Court of Appeal otherwise orders, receive any costs of the appeal. No application was made under this rule and I would not make any order as to the costs of these proceedings. 35 Dr Falamaki was substantially successful in these proceedings, up to and including the first decision of Talbot J of 5 June 1998, but does not appear to have fully appreciated this. It was indeed a remarkable achievement for a litigant in person, whose first language was not English, who was appearing against a Council, with all its resources and professional staff, represented by competent solicitors and counsel, and supported by a number of expert witnesses. 36 Dr Falamaki should have accepted the decision and got on with the job of complying with the spirit, if not the letter, of the Judge's requirement for independent professional certification, and put himself in a position where he could finish his house. Had he done this the legal proceedings could have been concluded on or shortly after 30 September and the house finished in the first half of 1999. Instead he embarked on a path involving argumentation of points with little merit, causing delay and further litigation in an attempt, it would seem, to convert substantial success into total victory. This risky course has failed nearly 3 years later after 3 court hearings. It is to be hoped that Dr Falamaki will now set about complying with the conditions in the order of 17 February 1999, within the extended times allowed by this Court. 37 The Court should make the following formal orders: (1) Leave to appeal refused; (2) Appeal dismissed as incompetent. (3) No order as to costs. (4) The times specified in para 2 of the orders of the Land and Environment Court of 17 February 1999 are extended as follows: (a) Order 2(i) to 9 May 2001. (b) Order 2(ii) to 6 June 2001. (c) Order 2(iii) to within 2 months of lodgment of the working drawings and certificate referred to in Order 2(i) subject only to any reasonable extension of time to take account of wet weather. (5) Liberty to apply to the Land and Environment Court. 38 POWELL JA: I agree with Handley JA. ****** 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.