Land and Environment Court New South Wales Medium Neutral Citation: Alamein & Anor v Pittwater Council [2012] NSWLEC 1194 Hearing dates: 19-20 July 2012 Decision date: 20 July 2012 Jurisdiction: Class 1 Before: Morris C Decision: Appeals upheld in part Catchwords: Consent Orders, Unauthorised excavation, Orders, Building Certificate. Legislation Cited: Environmental Planning and Assessment Act 1979 Category: Principal judgment Parties: Talal Alamein Haneid Alamein (Applicants) Pittwater Council (Respondent) Representation: Counsel Ms L Byrne (Applicant) Mr A Pickles (Respondent) Solicitors Mr D Loether Bartier Perry (Applicant) Ms R Dawes King & Wood Mallesons (Respondent) File Number(s): 10411 of 2012 10412 of 2012 10413 of 2012 10528 of 2012 Judgment 1This judgment concerns four appeals, all of which relate to two adjoining allotments. 2Appeal 10411 of 2012 is against the Order Number 19 under Section 121B of the Environmental Planning and Assessment Act 1979 issued by Pittwater Council to Haneid Alamein on 4 April 2012. That Order applies to No 37 Seaview Avenue, Newport and requires the cessation of all building works on that land. 3Appeal 10412 of 2012 is an appeal against Order 19 issued to Talal Alamein on 17 April 2012, which requires cessation of all building works on No 35 Seaview Avenue, Newport. 4Appeal 10413 of 2012 is an appeal again the deemed refusal by the council of a building certificate application lodged with Pittwater Council on 5 March 2012 in relation to building works at No 35 Seaview Avenue, Newport. 5Appeal 10528 of 2012 is an appeal against the deemed refusal of a building certificate application for No 37 Seaview Avenue lodged with the council on 10 April 2012. 6The parties agree that the matters be heard together and the evidence in one proceeding is to be regarded as evidence in the other proceedings where applicable however, different circumstances apply to each site and require separate evidence and consideration by the Court. 7As a result of that evidence and without prejudice offers on behalf of the applicants to carry out certain works, the parties are now seeking consent orders from the Court. Background and the proposal 8Talal Alamein and Haneid Alamein are the registered proprietors of Lot 10 in DP 6248 and Lot 1 in DP 307554 otherwise known as No. 35 Seaview Avenue Newport (No 35). Aladdin (Aust) Pty Ltd is the registered proprietor of Lot B in DP 402563, otherwise known as No. 37 Seaview Avenue Newport (No 37). Mr and Mrs Alamein are the sole directors of Aladdin. Those lots are adjoining lots and previously contained a dwelling house erected across the entire site which was known as No 35. That dwelling was demolished in 2011 and the sites are currently being redeveloped as individual parcels. 9A Complying Development Certificate (CDC) has been issued by a Private Certifier that authorises the construction of a two storey dwelling house on No 37. 10Pittwater Council has issued Development Consent for a two storey dwelling house with secondary dwelling on No 35. 11Both developments have commenced and are the subject of the stop work orders issued by the council. The reasons the council issued those Orders is that it states the development of the land is contrary to the CDC and consent. In particular, the issue goes to the over-excavation of each site and, in the case of No 37, the creation of additional subfloor areas which the council alleges are capable of adaptation for habitable purposes and the building being constructed contrary to the approved plans. The site and its context 12The sites are adjoining allotments located on the eastern side of Seaview Avenue and both slope from the road to the rear providing for glimpses of the Pacific Ocean through trees and buildings to the east. A cross fall of approximately 7 m applies across the sites. 13A residential flat building is located to the south of No 35 and a detached single storey dwelling house, known as No 41 is located to the north of No 37. There is no property known as No 39. The evidence 14The hearing commenced on site and evidence was heard from the owner of No 41 in relation to his concerns regarding the unauthorised works, in particular, that he and his wife were not aware of exactly what form the ultimate development at No 37, being the allotment immediately adjoining their land, would take. He cited the extent of excavation that had occurred on the site and was of the view that the intent of that work was to provide for additional habitable space within the building. In response to a question from the Court in relation to the impact of that excavation, the owner indicated that it would result in a building that was technically higher than approved due to the change in levels however, he did concede, that provided the building was completed in accordance with the approved plans, its height would accord to that provided for by the CDC. 15Expert evidence was heard from Mr B Daintry for the applicant and Ms A Allen for the council. Both agreed that it is imperative that the over-excavated areas between the two buildings and the neighbouring properties be backfilled as soon as possible. They also agreed that the extent of excavation in the area approved for the installation of the rainwater tanks in the sub-floor of No 35 had no environmental impact and, that subject to backfilling along the southern boundary of that site and the resolution of the treatment of the area between the two buildings under construction in terms of retaining and backfilling, that there would be no reason that works could not recommence on that site. Ms Allen said that a development application would be required in order that a proper assessment of the work could be undertaken and that the approved landscape plan should be modified to reflect that work required between the two buildings. 16Ms Byrne, for the applicant, advised the Court that her client would be prepared to follow the path suggested by Ms Allen and sought an adjournment to allow the preparation of appropriate draft orders to reflect Ms Allen's evidence. 17In relation to No 37, the experts agreed that the subfloor areas should be rendered non-habitable and that this could be achieved through the construction of 12 evenly spaced piers within the area forward of the constructed western subfloor wall and the eastern face of the building. Such works could be a requirement of the Court pursuant to the provisions of s 149F(3)(c) of the Act. It was also agreed that there would be no reason to backfill the area to the west of that wall as the surface levels of that space are such that it would not be suited for any habitable purpose. Conclusion and findings 18Having the benefit of the site inspection and the evidence of the experts, it is apparent that a resolution to allow the completion of the developments on both allotments must be found. The offer put by the applicant for No 35 has merit and would require a building certificate to be issued for the works that have been described as the "rainwater tank room". The works that are required to be undertaken to the over-excavated area between the two partially constructed buildings are to be the subject of a development application to the council and the final landscaping of the site would need to reflect those works and accordingly, modification of the development consent conditions and plans as they relate to landscaping would need to be sought. The applicant has agreed to apply for those approvals and this fact is an important consideration in my decision. 19I accept the evidence of the experts that the construction of piers within the subfloor area and enclosure of the openings in the rear (eastern) wall with timber battens would ensure the subfloor area is not capable of being used for habitable purposes and would be consistent with the CDC plan. 20Having regard to the issues raised by the objectors, I am satisfied that, provided the subfloor area of No 37 is not used for habitable purposes and the remaining building is completed in accordance with the CDC plans, that there will be no adverse impacts to the enjoyment of their property as a result of the change to the treatment of the subfloor area. It is appropriate that the area between that building and the boundary with No 41 be backfilled as soon as possible. 21The parties have provided the Court with draft orders that would reflect the evidence provided by the experts and I am satisfied that those orders are lawful, appropriate and will ensure that the interests of all parties is maintained. Those orders provide for the modification of the Orders issued by the council in relation to both allotments and a list of works that are required to be undertaken prior to the issue of a building certificate for No 37. 22The Orders of the Court are: 23In appeal 10411 of 2012: (1)The appeal is upheld in part. (2)The order issued upon the Applicant on 4 April 2012 under item 19 of section 121B of the Environmental Planning and Assessment Act 1979 in respect of No. 37 Seaview Avenue, Newport is revoked. (3)The applicant must carry out or cause to be carried out the works described in Annexure A in respect of No. 37 Seaview Avenue, Newport within 28 days subject to the conditions in Annexure B. (4)Only after completion of the works in Order 3 and submission of the documents to Council in accordance with Conditions 1 and 2 of Annexure B, whichever is the later, the Applicant may continue with the construction of the dwelling in accordance with the Amended Complying Development Certificate No. 1816B/11 dated 29 June 2012 24In appeal 10412 of 2012: (1)The appeal is upheld in part. (2)The Order issued by Pittwater Council upon the Applicant on 17 April 2012 under item 19 of Section 121B of the Environmental Planning and Assessment Act 1979 in respect of No. 35 Seaview Avenue, Newport is revoked. (3)The Applicants must carry out or cause to be carried out the works described in Annexure A in respect of No. 35 Seaview Avenue, Newport in accordance with the conditions in Annexure B. 25In appeal 10413 of 2012: (1)The appeal is upheld in part. (2)Within 14 working days of the Applicant carrying out the works required under the Orders of this Court in matter No. 10412 of 2012 and, if the Respondent is satisfied that the works have been carried out in accordance with Order 3 of those Orders, the Respondent is to issue a Building Certificate for the rain water tank room as shown on the works as executed surveys prepared by Detailed Surveys dated 9 March 2012 and 22 May 2012 reference 038/11. (3)The parties have liberty to restore on three days notice. 26In appeal 10528 of 2010: (1)The appeal is upheld in part. (2)Within 14 working days of the Applicant carrying out the works required under the Orders of this Court in matter No. 10411 of 2012 and, if the Respondent is satisfied that the works have been carried out in accordance with Order 3 of those Orders, the Respondent is to issue a Building Certificate for the following works: (a)the internal subfloor wall shown in survey drawing prepared by Detailed Surveys dated 22 May 2012 (ref: 038/11) (b)the 12 brick piers required under Order 3 of matter No. 10411 of 2012. 27In all appeals, the parties have liberty to restore on three days notice and the exhibits may be returned. ______________________ Sue Morris 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: 23 July 2012