Woollahra Council v Duarte [2012] NSWLEC 223

Land and Environment Court New South Wales

Medium Neutral Citation: Woollahra Council v Duarte [2012] NSWLEC 223 Hearing dates: 21/09/2012 Decision date: 21 September 2012 Jurisdiction: Class 4 Before: Biscoe J Decision: The following questions be decided separately from any other question before any further trial in the proceedings: (a) Whether development consent No DA502/2002 (as modified) granted by the applicant Council lapsed as at 8 July 2008. (b) If the development consent has not lapsed, whether the respondents have complied with the development consent and the construction certificate (including condition 2 of the consent). Catchwords: SEPARATE QUESTION - Class 4 civil enforcement proceedings - whether separate and preliminary questions should be ordered. Category: Procedural and other rulings Parties: Woollahra Council (Applicant) Charmaine Duarte (First respondent) Rodney Duarte (Second respondent) Representation: COUNSEL: Mr A Hudson, solicitor (Applicant) Ms V McWilliam (Respondents) SOLICITORS: Wilshire Webb Staunton Beattie (Applicant) D C Legal (Respondents) File Number(s): 40330/11

EX TEMPORE Judgment 1In these Class 4 civil enforcement proceedings the applicant Council and the first respondent move orally for the determination of two separate and preliminary questions. The second respondent has filed a submitting appearance. 2The relief claimed in the second amended summons filed on 21 September 2012 at [1] - [7] is as follows: 1. A declaration that Development Consent No. DA502/2002 dated 9 July, 2003 and modified on 12 October 2004 ("the Development Consent") for Lot 8 DP34035 known as 28 Edgecliff Road, Woollahra ("the land") lapsed on 7 July, 2008. 2. A declaration that Construction Certificate No. 090037 (residential) issued by the certifying authority Greg Hough (registration No. 0186) dated 10 February 2010 for building works on the land is invalid. 3. A declaration that the building works carried out by the Respondents on the land between February 2010 and August 2010 have been carried out without development consent and in breach of the Environmental Planning and Assessment Act 1979. 4. An order that the Respondents submit within 28 days from the date of these orders, building and engineering plans, details and specifications to the satisfaction of the Council showing: (a) removal of the attic storage level and the new pitched metal roof on the new extension to the dwelling on the land. (b) erection of a new replacement skillion roof sloping towards the west with a maximum RL 86.495 (AHD). (c) demolition of the western wall of upper level bedroom one and rebuilding of this wall along the same set back as the remainder of the western wall at the upper level. (d) deletion of the planter box to the rear elevation to the upper floor and replacement with a Juliet balcony with a maximum width of 1.8m and maximum depth of 0.4m. (e) deletion of the outer two doors to the rear elevation of the upper floor (onto the Juliet balcony referred to above) and replacement with inward opening doors only. (f) deletion of the doors to the bay window to the front of the upper floor and its replacement with a window having a sill height of at least 1.0m and taking into the works in (a) - (b) above. (g) removal of all glass bricks on the eastern and western walls and replacement with brickwork to match the existing brickwork. 5. An order that the Respondents within three months from the Council notifying the Respondents that the plans, details and specifications referred to in order 4 above are satisfactory, carry out the works in accordance with the plans, details, specifications and any conditions imposed by the Council. 6. In the event that the Development Consent has not lapsed then a declaration that the Respondents have carried out works in breach of the Development Consent No, DA502/2002 dated 9 July 2003 and modified on 12 October 2004 and including the construction certificate No. 090037 dated 10 February 2010 ("the development consent") for Lot 8 DP 34035 known as 28 Edgecliff Road Woollahra (the land) 7. ln the event that the Development Consent has not lapsed an Order that the Respondents carry out, within three (3) months from the date of this order, all necessary works to obtain compliance with the Development Consent including:- (a) demolition of the new pitched metal roof to the extension, (b) demolition and removal of any windows (including glass blocks) which are not in accordance with the development consent, (c) construction of a hipped roof with a maximum ridge level of RL 88.682 (AHD) in accordance with the development consent, (d) removal of any doors to the southern end of the upper level opening and replace with the approved timber frame sliding doors in accordance with the development consent, (e) removal of any works for doors at the northern end of the bay window at the upper floor and replacement with approved casement windows in accordance with the development consent, and (f) removal of all glass bricks on the eastern and western walls and replacement with brickwork to match the existing brickwork. 3The proposed separate questions are as follows: (a)Whether Development Consent no. DA502/2002 (as modified) granted by the applicant Council lapsed as at 8 July 2008; (b)If the Development Consent has not lapsed, whether the Respondents have complied with the Development Consent and the Construction Certificate (including Condition 2 of the Consent). 4If the development consent has lapsed such that question (a) were to be answered yes, that is in favour of the Council, then the parties are agreed that the Council is entitled to relief in terms of [1] - [5] inclusive of the second amended summons, subject to the Court's discretion concerning the grant of relief. Alternatively, if the development consent has not lapsed and question (b) is answered no, that is in favour of the Council, then the parties are agreed that the Council is entitled to alternative relief in terms of [6] and [7] of the second amended summons, again subject to the Court's discretion. If the proposed questions are answered favourably to the respondents, then that is the end of proceedings. If, however, either question is answered favourably to the Council, then the only remaining issue is whether or not the Court should in its discretion grant the relief sought. 5If the Council is successful on one of the preliminary questions then the issue of discretion, the parties think, may well be able to be resolved by agreement without further evidence or a hearing on discretion. The parties apprehend that the costs involved in relation to evidence and a hearing on discretion may well be relatively substantial. I am told that the first respondent is a person of limited means. The second respondent has filed a submitting appearance. I am persuaded, in the circumstances, that it is an appropriate case to make an order for the determination of separate questions as proposed by the parties. 6The order of the Court is that the following questions be decided separately from any other question before any further trial in the proceedings: (a)Whether development consent No DA502/2002 (as modified) granted by the applicant Council lapsed as at 8 July 2008. (b)If the development consent has not lapsed, whether the respondents have complied with the development consent and the construction certificate (including condition 2 of the consent). 7I make directions to progress the separate questions towards a hearing in accordance with the document entitled "Orders and Directions" dated 21 September 2012 which I sign and place with the papers. 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: 24 September 2012