Land and Environment Court New South Wales Medium Neutral Citation: Wallis v Hornsby Shire Council [2012] NSWLEC 1029 Hearing dates: 2 February 2012 Decision date: 16 February 2012 Jurisdiction: Class 1 Before: Fakes C; O'Neill C Decision: Appeal dismissed; date for compliance amended; order modified to include conditions of consent Catchwords: SECTION 121B ORDER: Order no. 15 to comply with development consent; addition as built is not in accordance with approved plans. Legislation Cited: Environmental Planning & Assessment Act 1979 Hornsby Shire Local Environmental Plan 1994 Environmental Planning and Assessment Regulations 2000 Cases Cited: Wallis v Hornsby Council [2006] NSWLEC 122 Imaroo Flyer Pty Ltd v Berrigan Shire Council [2010] NSWLEC 1251 Category: Principal judgment Parties: Mr Y Wallis (Applicant) Hornsby Shire Council (Respondent) Representation: Applicant: Mr Y Wallis (Litigant in person) Respondent: Mr I Woodward (Solicitor) Respondent: Storey & Gough Lawyers File Number(s): 10572 of 2011 Judgment 1COMMISSIONERS: This is an appeal under s 121ZK of the Environmental Planning & Assessment Act 1979 (the Act) against Order No. 15 - to comply with development consent, made by Hornsby Shire Council under s 121B of the Act. 2The order made on 1 June 2011 requires Mr Wallis, as the owner of 2 Schofield Parade Pennant Hills (Lot 3 DP 209830), do the following within 60 days of the date of the order: SCOPE OF WORKS 1. Modify the building by reducing its size to comply with the plans approved under DA/89/2007/B. 3The reasons for the order are summarised as: * The building has not been constructed in accordance with the approved plans; * The floor space ratio of 0.46:1 exceeds the permitted maximum FSR of 0.4:1; * The southern elevation of the upper floor is 1.45m closer to the southern boundary of the property which has increased the level of overshadowing of the adjoining properties - 73 and 73A Laurence Street; * The overshadowing does not comply with the controls in council's Dwelling House Development Control Plan; and * Previous refusals by council and the Court on the grounds of overshadowing. 4While the application to the Court does not state the orders sought, it was elicited from Mr Wallis during the hearing that he asks the order be revoked. 5The basis of the Mr Wallis' position appears to be that: the original plans approved by council were incorrectly drawn by the architect; the applicant was not the owner of the building when the additions were constructed; the council should have identified the non-compliance earlier; he has not had any complaints from his neighbours since the completion of the works; and being a pensioner, he is unable to afford the cost of rebuilding (which he estimates to be $300,000) and would rather be fined or go to gaol. We note that the applicant did not put on any evidence to support his position. Relevant background 6This matter has some history. In 2005, Mrs Wallis, the applicant's wife and the then owner, lodged a development application for a first floor addition. Council refused the DA and the refusal was appealed to the Court. Commissioner Brown dismissed the appeal in Wallis v Hornsby Council [2006] NSWLEC 122 on the basis that the proposal would have an unacceptable impact on solar access to the adjoining properties. 7In 2007, Mrs Wallis and daughters (the then owners) lodged another development application for alterations and additions including a first floor addition. The council assessment report notes two submissions opposing the proposal on the grounds of overshadowing, construction over a sewer line, and excessive scale and bulk. The report states that the proposal would result in only a minimal increase in overshadowing and was compliant with the solar access controls. Overall the proposal was deemed compliant and subsequently DA 89/2007B was approved on 7 March 2007 on the basis of the approved plans and subject to conditions of consent. [We note that, amongst others, condition 14 required 'construction must comply with AS3959-1999 level 3 "Construction of Buildings in Bushfire prone areas". ] 8A private certifier approved a Construction Certificate (CC) for the works valued at $60,000. The terms of the CC require that the works must be carried out in accordance with the approved plans and conditions of consent. 9Condition 3 of the consent required the applicants to appoint a Principal Certifying Authority (PCA) to ensure that the works were carried out in accordance with the approval and to undertake inspections at the stages identified in the CC. Documentation in the council's bundle indicates that the work was carried out under an 'Owner Builder Permit'. There is no documentation to show whether a PCA was appointed; there are letters from a consulting engineer, Mr Patrick Meares, noting the structural adequacy of timber framing but no mention as to whether the structures were located/ built according to the approved plans. 10On 23 August 2010, the council issued a s 121B Order 15 requiring Mrs Wallis and her daughters to modify the building by reducing its size to comply with the approved plans. This order arose after council became aware that the alterations and additions were not in accordance with the plans approved under DA/89/2007B. 11Subsequently, Mrs Wallis lodged a s 96 development application (DA/89/2007/C) to enlarge the approved works. The owners are listed as Mr and Mrs Wallis. The council report notes that the works had been completed. A council survey confirmed that the extent of work completed was in excess of the dimensions shown on the submitted 'as built' plans. Two submissions were received raising concerns over scale, height, setbacks and solar access. The council's assessment determined that the submitted plans were inaccurate and there were unacceptable solar access impacts on adjacent properties. The s 96 application was determined by refusal on 3 December 2010. The applicant has not appealed the s 96 refusal. 12The s 121B order, the subject of this appeal, was issued on 1 June 2011. 13Further documentation in the council's bundle of evidence shows that Mr & Mrs Wallis applied for a Building Certificate on 18 October 2011. The bundle also indicates that Mr Wallis sought preliminary bushfire design advice from an accredited consultant. The report notes that the structure does not comply with the relevant conditions of consent. The advice from the consultant, dated 16 November 2011, is that the structure, as built, does not comply with current design standards for the calculated bushfire attack level and that condition 14 requiring 'level 3' construction is an under estimate of the local bushfire threat. An internal memo regarding an assessment of the applicant's property by council's Building Certifications team leader for the purpose of determining compliance with the Building Code of Australia, and therefore the issuing of a Building Certificate, notes non-compliance with respect to the internal stairs, smoke alarms, and the balustrade to the first floor balcony. The conclusion was that the additions are not considered fit for occupation. [It is not known whether an Occupation Certificate has been issued.] Relevant planning controls 14For the purpose of council's contentions regarding non-compliance, the relevant controls are found in the following controls. Clause 15 of Hornsby Shire Local Environmental Plan 1994 specifies the maximum floor space ratio for dwelling houses to be 0.4:1. Hornsby Shire Dwelling House Development Control Plan (DHDCP) - Solar Access prescribes (in part) that: Dwelling houses should be designed to allow north-facing windows to living areas of adjacent and proposed dwellings to receive 3 hours of sunshine between 9am and 3pm on 22 June over a portion of their surface. The hearing and the evidence 15This matter commenced as a s 34 conciliation conference, heard by another Commissioner of the Court that was subsequently terminated. Appropriately, we were not apprised of the details of the without-prejudice discussions between the parties. The only matter of some relevance was that Mr Wallis has been given a number of opportunities to provide council with accurate plans of the structure as built, as well as an opportunity to apply for a Building Certificate. 16The hearing commenced with a site inspection of the part of the applicant's dwelling that is the subject of this appeal - being the first floor addition on the southern side of the dwelling. 17The external width of the addition was measured and found to be about 6.63m. The setback from the central brick wall to the northern wall of the addition was measured at about 1.9m. 18Council's planner, Mr R Sharma, gave evidence on behalf of the council. He confirmed the measurements taken during the site inspection and agreed that the approved extension was 4.5m wide and that the approved plans show it springing from the central brick wall and not set back off that wall. 19When questioned about the discrepancies in the extent of non-compliance with floor space ratio controls and side setbacks we noted in the council's documents, Mr Sharma stated that the applicant's failure to provide accurate plans had made the council's assessment of the situation very difficult. This also applied to council's ability to accurately determine solar access for the adjoining properties to the south. Mr Sharma stated that the earlier s 96 application did not include a solar access analysis, however, he considered that absent that information, it was his opinion the structure as built would not comply with the solar access controls. The best council was able to do in establishing the non-compliance was to undertake a survey from the street. This survey was somewhat constrained by the dense tree cover at the front of the applicant's property. This survey (exhibit 3) shows the southern wall of the addition to be further to the south than the approved construction, however it does not include a dimension between the position of what was approved and what was constructed. 20In regards to Mr Wallis' estimate of $300,000 to rectify the dwelling, Mr Sharma considered this to be far in excess of the actual cost. 21In summary, the council's position is that the applicant did not carry out the works in accordance with the approved plans and seeks Court orders requiring compliance with the s 121B order. The council contends that upholding the applicant's appeal would set an undesirable precedent. 22As noted earlier in this judgment, Mr Wallis called no experts, submitted no plans to demonstrate compliance or otherwise, and put on no evidence to refute council's contentions. 23In submissions, Mr Wallis reiterated his position that the initial approved plans were incorrectly drawn by the architect. He also contended that council should have picked up the problem of non-compliance much earlier. In support of this submission Mr Wallis attached a letter sent to his wife and daughters (as the then owners of the property) on 15 October 2009 from council's Environmental Protection Officer. The letter was a 'Notice of Entry' regarding a 'proposed inspection of building works'. The letter indicates this was written because the owners had not responded to council's phone calls and another letter regarding alleged building works on the property. 24In regards to the neighbouring properties, Mr Wallis stated that he had resided there for about 40 years and, as far as he was concerned, his neighbours had no problems with the additions and he was on good terms with them. 25In the absence of accurate plans showing the 'as built' additions, it was agreed that, in considering the matter, we should rely on the measurements taken during the site inspection and on the approved plans. Findings 26Section 121ZK(4) of the Act gives the Court the discretion to: (a)revoke the order, or (b)modify the order, or (c)substitute for the order any other order that the person who gave the order could have made, or (d)find that the order is sufficiently complied with, or (e)make such order with respect to compliance with the order as the Court thinks fit, or (f)make any other order with respect to the order as the Court thinks fit. 27In Imaroo Flyer Pty Ltd v Berrigan Shire Council [2010] NSWLEC 1251, Dixon C at [22] states: 22 As is clear from the wording of the section the Court's power under section 121ZK(4) of the EPA Act does not extend to a merit assessment of the structures. The Court has no power in this appeal to grant an approval for the structures to remain without development consent under the EPA Act. 28It is clear from the measurements taken and the observations made at the site inspection, the additions and alterations as built are a significant departure from the approved plans. 29Mr Wallis contends that the approved plans are wrong. This is an interesting proposition. It seems unusual to us, as the applicant has resided at the premises for many years, presumably including during the construction phase when one of his daughters was the registered owner-builder, that the so-called mistake in the architect's plans was not picked up by the family. The material in the council's bundle does not indicate that a s 96 modification application was lodged before the building works commenced. While we note some sloppy drafting of the approved plans, we consider it unreasonable for Mr Wallis to blame his situation on incorrect drawings. It is highly unlikely that the architect drew plans that did not reflect the applicants' requirements. It is the usual practice for extensive consultation between an architect and their client/s. In short, we reject Mr Wallis' submissions on this contention. 30Mr Wallis also contends that he should not be responsible as he was not the owner of the property at the time the works were carried out. In August 2010, Mr Wallis purchased his daughters' share of the property. It is not known whether this was before or after the issuing of the first s 121B order, although we note that he is listed as an owner of the property in the council's report on the s 96 application of the 23 August 2010. 31We find it unusual in the circumstances that Mr Wallis would be unaware of the issuing of the first s 121B order and therefore unaware of the irregularities of the development. As a purchaser of the property, we could reasonably assume that this took place legally and he would be aware of any encumbrances or risks associated with the property. As the approved consent runs with the land, the owner/s of land is/are responsible. We therefore reject Mr Wallis' submission on this point. 32In regards to Mr Wallis' assertions that council should have picked up the problem earlier, we reject this on the basis that there is no evidence the council was appointed as the Principal Certifying Authority. In fact, there is no evidence of who was appointed as the PCA, a requirement of the Construction Certificate. While there are several letters in council's bundle from Mr Meares, the consulting engineer, to both Mr and Mrs Wallis regarding the adequacy of the structure, there is nothing to indicate he was the PCA. In regards to the letter from a council officer referred to by Mr Wallis in [23], there is nothing in that letter to indicate it had anything to do with an inferred duty of council to inspect on-going works. Conclusions and orders 33In our view, Mr Wallis was aware of the planning controls. The history of the development shows that council approved the plans being mindful of the reasons given by the Court's refusal of the earlier plans. Indeed, Mrs Wallis and her daughters (the applicants at the time) responded with a compliant design. Despite this, the addition was not constructed in accordance with the approved plans. The site inspection proved beyond doubt that the northern wall of the addition does not abut the central masonry wall, the addition is at least 2m wider than approved, and, as a result, the southern wall is at least 4m closer to the southern boundary than approved. We accept the council's reasons for their inability to accurately quantify the extent of the non-compliance with solar access and other controls. 34Mr Wallis has not satisfied the Court that the order should be revoked. 35One of the objects of the Act is to encourage the 'promotion and co-ordination of the orderly and economic use and development of land' (s 5(a)(ii)). In part, this is achieved through the making of Local Environmental Plans supported by more detailed Development Control Plans. Indeed, the Environmental Planning and Assessment Act 1979 and the Environmental Planning and Assessment Regulations 2000 specify how such plans are to be made and detail the planning approval process. To ignore the process by not complying with an approved development is counter to the orderly development of land and the planning system. 36On this basis, we have determined that the appeal is dismissed. 37At the hearing the parties were given an opportunity to consider an appropriate time frame for compliance, should we find against the applicant. The council considers a period of 6 months from the date of this judgment is appropriate. Mr Wallis reiterated his position that he would be unable to afford to comply regardless of the time allowed. 38In addition to modifying the order to reflect the new date for compliance, we also consider it appropriate, in the circumstances of the bushfire assessment report and the matters raised about non-compliance with the Building Code of Australia, that the order be modified to include the words "and conditions of consent" after the word "plans" in the Scope of Works. These are not trivial matters that should be ignored as they have ramifications for the safety of anyone who resides in the dwelling. To encompass these conditions, the words "by reducing its size" are deleted. 39Therefore, the Orders of the Court are: (1)Appeal 10572 of 2011 is dismissed. (2)The order issued by Hornsby Shire Council pursuant to s 121B of the Environmental Planning and Assessment Act 1979 and dated 1 June 2011 is modified as follows: SCOPE OF WORKS 1. The applicant shall, by 5.00pm on 31 August 2012, modify the building to comply with the plans and conditions of consent approved by Council under Development Consent No. DA/89/2007/B. (3)All exhibits except 1,2 and 6 are retained. ____________________________ __________________________ J Fakes S. O'Neill Commissioner of the Court Commissioner of the Court 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. Decision last updated: 20 February 2012