Land and Environment Court New South Wales Medium Neutral Citation: Lane Cove Council v Ross (No 5) [2013] NSWLEC 17 Hearing dates: 18 February 2013 Decision date: 20 February 2013 Jurisdiction: Class 4 Before: Pepper J Decision: (1) the notice of motion filed on 1 February 2013 by Mr Raymond Ross is dismissed; (2) Mr Raymond Ross is to pay the council's costs of the dismissed notice of motion; (3) by consent, Mr Raymond Ross, and his agent and servants, shall provide access for officers of the council and the council's town planning consultant, Kerry Nash, to enter the premises known as 8 Bayview Street, Northwood (including all levels of the dwelling house under construction at those premises), for the purpose of carrying out an inspection including the taking of measurements and the taking of photographs. Such inspection to take place on Tuesday, 26 February 2013 at 10.00am for a maximum duration of two hours; and (4) the proceedings are stood over to 4.15pm on 27 February 2013 before Pepper J for further directions. Catchwords: PROCEDURE: application to set aside or amend orders after entry - no evidence that the orders were made irregularly, illegally or against good faith - no other power to amend or set aside orders after entry - application dismissed - application by council for order to enter and inspect premises - by consent inspection order made Legislation Cited: Environmental Planning and Assessment Act 1979 ss 76A, 96 Uniform Civil Procedure Rules 2005 rr 36.15, 36.16 Cases Cited: Halley v Minister Administering the Environmental Planning and Assessment Act 1979 (No 4) [2011] NSWLEC133 Kennedy v Stockland Developments Pty Limited (No 3) [2011] NSWLEC 249 Lane Cove Council v Ross [2012] NSWLEC 153 Lane Cove Council v Ross (No 2) [2012] NSWLEC 160 Lane Cove Council v Ross (No 3) [2012] NSWLEC 171 Lane Cove Council v Ross (No 4) [2012] NSWLEC 191 Presrod Pty Ltd v Wollongong City Council [2010] NSWLEC 192 Ross v Lane Cove Council [2012] NSWLEC 1364 Category: Procedural and other rulings Parties: Lane Cove Council (Applicant) Raymond Ross (Respondent) Representation: Mr S Griffiths (Solicitor) (Applicant) Mr R Ross (in person) (Respondent) Pikes & Verekers Lawyers (Applicant) N/A (Respondent) File Number(s): 40628 of 2012 Judgment Mr Ross Seeks to Vary Consent Orders Made by the Court 1Before the Court are two notices of motion, one filed by the respondent to the proceedings, Mr Raymond Ross, and the other filed by the applicant to the proceedings, Lane Cove Council ("the council"). 2By his notice of motion filed 1 February 2013, Mr Ross seeks to set aside or amend orders made by consent on 13 August 2012, thereby permitting him to "proceed with works as per approved DA 325/07 in so far as it is possible and subject to minor variations relating to access given the already constructed changed stair access". Mr Ross also seeks an order that the council officers be restrained from entering the premises the subject of the development without proper authorisation. 3The council seeks, in its application filed 8 February 2013, an order that it be permitted to enter and inspect the premises. 4At the conclusion of the hearing of Mr Ross' notice of motion, in order to ensure that both notices of motion were dealt with in the allocated time, I delivered an oral judgment, providing only very brief ex tempore reasons for dismissing his application. At the time, I indicated that I would deliver more fulsome reasons for judgment the next day. These are those reasons. Mr Ross Carries Out Unlawful Building Works 5The background to this judgment is contained in Lane Cove Council v Ross [2012] NSWLEC 153, Lane Cove Council v Ross (No 2) [2012] NSWLEC 160, Lane Cove Council v Ross (No 3) [2012] NSWLEC 171 and Lane Cove Council v Ross (No 4) [2012] NSWLEC 191. 6In short, on 13 August 2012 consent orders were relevantly made in the following terms: 1. declares that alterations and additions to the dwelling house at 8 Bayview Street, Northwood ("the premises") have been carried out not in accordance with the Development Consent DA325/07 of the Lane Cove Council issued on 2 April 2008 ("the Development Consent"); 2. declares that the alterations and additions to the premises have been carried out in breach of s 76A(1)(a) of the Environmental Planning and Assessment Act 1979 ("the EPA Act"); 3. orders that the respondent is restrained from carrying out any further development of the premises, in the nature of alterations and additions or other excavation, construction or building works, in breach of s 76A(1) of the EPA Act; 4. adjourns the final hearing (part heard) of prayers 4, 5, and 6 for relief in the summons filed 26 June 2012; 7The factual circumstances giving rise to the making of the consent orders are contained in Ross (No 4) (at [7]-[16]). In particular, it should be noted that when the matter was before the Court on 13 August 2012, Mr Ross admitted that the development work carried out by him the subject of these proceedings, was contrary to the terms of the consent granted by the council. 8As stated in Ross (No 4) (at [16]), a modification application under s 96 of the Environmental Planning and Assessment Act 1979 ("the EPAA") was lodged by Mr Ross on 10 August 2012 in order to regularise the development. Initially Mr Ross had sought a stay of the summons filed by the council alleging breach of s 76A(1)(a) of the EPAA pending determination of the s 96 application, but it was not pursued once the consent orders were agreed to by the parties on 13 August 2012. 9The modification application was referred to the council's Independent Hearing and Assessment Panel for determination. The application was refused on 2 October 2012. 10Subsequently Mr Ross appealed this refusal pursuant to s 96(2) of the EPAA. 11The appeal was heard before Dixon C on 18 and 19 December 2012 (Ross v Lane Cove Council [2012] NSWLEC 1364). Before the Commissioner Mr Ross enjoyed a large measure of success. However, towards the conclusion of the hearing it became apparent that he was not in fact the owner of the property (at [20]). Accordingly, an adjournment for a period of six weeks was granted to allow the preparation of drawings required in order for the modification application to be formally approved by the Court and to register the transfer of land in order to crystallise ownership (at [20]). Otherwise, the Commissioner proposed "to grant consent to the application subject to the matters raised in this judgment subject of course to the requisite owner's consent" (at [21]). 12The s 96 modification appeal was relisted before the Court on 29 January 2013 in order for Mr Ross to file amended plans in conformity with the Court's reasons and for the Court to make final orders. But Mr Ross produced plans that were inconsistent with the amendments required by the Court. They were not accepted. Shortly thereafter Mr Ross discontinued the appeal. 13Then in January 2013 Mr Ross lodged a building certificate application with the council. The council responded to the application on 30 January 2013 requesting as-built plans, surveyor certification, proof of ownership and engineering certification as to structural soundness with respect to the development. According to the council, none have been produced by Mr Ross. Power of the Court to Vary or Set Aside Orders After Entry 14It is not in dispute that the orders the subject of this application were entered shortly after they were made. Accordingly, the circumstances in which the power of the Court may be engaged to set aside or vary the orders are circumscribed. 15Rule 36.15 of the Uniform Civil Procedure Rules 2005 ("the UCPR") provides as follows: 36.15 General power to set aside judgment or order (1) A judgment or order of the court in any proceedings may, on sufficient cause being shown, be set aside by order of the court if the judgment was given or entered, or the order was made, irregularly, illegally or against good faith. (2) A judgment or order of the court in any proceedings may be set aside by order of the court if the parties to the proceedings consent. 16Plainly as the council does not consent to the application, in order to satisfy r 36.15 Mr Ross must demonstrate that the consent orders made on 13 August 2012 were made irregularly, illegally or against good faith. 17Rule 36.16(2)-(3C) of the UCPR also confers power on the Court to vary or set aside orders after their entry: 36.16 Further power to set aside or vary judgment or order ... (2) The court may set aside or vary a judgment or order after it has been entered if: (a) it is a default judgment (other than a default judgment given in open court), or (b) it has been given or made in the absence of a party, whether or not the absent party had notice of the relevant hearing or of the application for the judgment or order, or (c) in the case of proceedings for possession of land, it has been given or made in the absence of a person whom the court has ordered to be added as a defendant, whether or not the absent person had notice of the relevant hearing or of the application for the judgment or order. (3) In addition to its powers under subrules (1) and (2), the court may set aside or vary any judgment or order except so far as it: (a) determines any claim for relief, or determines any question (whether of fact or law or both) arising on any claim for relief, or (b) dismisses proceedings, or dismisses proceedings so far as concerns the whole or any part of any claim for relief. (3A) If notice of motion for the setting aside or variation of a judgment or order is filed within 14 days after the judgment or order is entered, the court may determine the matter, and (if appropriate) set aside or vary the judgment or order under subrule (1), as if the judgment or order had not been entered. (3B) Within 14 days after a judgment or order is entered, the court may of its own motion set aside or vary the judgment or order as if the judgment or order had not been entered. (3C) Despite rule 1.12, the court may not extend the time limited by subrule (3A) or (3B). 18The scope and operation of both rules have been the subject of extensive discussion by this and other courts (see, for example, Presrod Pty Ltd v Wollongong City Council [2010] NSWLEC 192 at [49]-[58] per Craig J, Halley v Minister Administering the Environmental Planning and Assessment Act 1979 (No 4) [2011] NSWLEC133 at [7]-[8] and Kennedy v Stockland Developments Pty Limited (No 3) [2011] NSWLEC 249 at [82] per Pepper J, and the various authorities cited therein). The authorities universally emphasise the necessity to exercise the power to revoke or vary orders after entry sparingly in light of the principle of finality of litigation. Evidence of Mr Ross in Support of his Application 19Mr Ross relied on two affidavits sworn by him on 29 January and 18 February 2013 and an affidavit of Ms Hadia Edilbi sworn 15 February 2013. Other affidavits upon which he sought to rely were rejected by the Court on the grounds of relevance. 20The affidavit of Mr Ross sworn 18 February 2013 details the current state of the development and an alleged conversation between himself and a council officer, Mr Adrian Moore, wherein Mr Moore is alleged to have represented that there is a stop-work order in place with respect to the impugned development. Moreover, it appears, according to the affidavit, that council workers have been attempting to inspect the premises contrary to the wishes of Mr Ross. According to Mr Ross this stop-work order and the "harassment" by the council of the labourers on site has prevented a roof being constructed over the development which, in turn, has caused extensive damage due to water penetration from rain. 21The affidavit of Ms Hadia Edilbi similarly deposed to council officers coming onto the property to inspect the development against the wishes of herself and Mr Ross. 22Mr Ross' affidavit sworn 29 January 2013 sketches the background to this application, and in particular, the factual circumstances giving rise to the s 96 modification application and the hearing of the appeal against the council's refusal of that application before the Commissioner. Significantly it contains the following paragraphs (emphasis added): 10 Council obtained exparte [sic] orders on the 6th July 2012 preventing any further construction of brickwork on the second floor. 11 The application immediately sought to stay these proceedings by consenting to the orders sought by Council 12 On 8 August 2012 the applicant lodged a Notice of Motion and had it listed for the 9th Aug 2012. 13 At the hearing on the 9th 2012 [sic] the plaintiff successfully applied to have the motion stood over to the 13th Aug 2012 which was the date set for the hearing. 14 On the morning of 13th 2012 [sic] the plaintiff's barrister acknowledged that the orders as sought in my motion were in fact acceptable to the plaintiff. 15 After some discussions between the parties and after some preliminary issues were dealt with; it was my understanding orders were made by consent in line with my notice of motion. I later came to understand that the plaintiff had misled the court in relation to the agreed position. 16 The rationale for consenting to the orders sought was: (a) Most of the variations which [sic] Council were expressing concerns had been completed over 2 years earlier. (b) No additional variations were being sought and most of the work had been already competed. (c) It was not contemplated that ALL work on the project would be stopped or need to be stopped as no variations to the second floor itself were sought except with respect to the stair access which was part of an existing stairwell. Minor changes necessary to accommodate the existing stairway were not considered as something that would create an issue. And window openings thought to benefit the section 96 application were already mostly completed. 23Mr Griffiths, appearing on behalf of the council objected to paragraph 15 on the basis that no particulars had been provided by Mr Ross of the alleged misleading conduct. 24This allegation of misleading conduct deposed to by Mr Ross in his affidavit was the only material that came close to evidence of irregularity, illegality or malfides by the council sufficient to engage the terms of r 36.15 of the UCPR. 25Because Mr Ross is an unrepresented litigant, some latitude must be afforded to him in his conduct of the proceedings. The Court therefore rejected the objection and instead granted Mr Ross leave to provide additional oral evidence in chief in order to provide details of the misleading conduct. 26Mr Ross' oral evidence was to the effect that he agreed to the consent orders made on 13 August 2012, and in particular order 3, for two reasons: (a) first, any variation by him from the terms of the development consent was merely "technical" in nature; at all times he was in compliance with the "control documents of the council"; and (b) second, it was his belief, as communicated to him by the council's legal representatives on 13 August 2012, that these orders did not amount to a stop-work order. 27He was not cross-examined. 28When the terms of order 3 of the consent orders made on 13 August 2012 are read properly, it is tolerably clear that the restraint set out in that order does not amount to a stop-work order as Mr Ross suggests. All that the order does is to restrain Mr Ross from committing any further breaches of the EPAA by continuing to engage in building works outside the scope of the terms of the development consent. 29As was explained to Mr Ross at the hearing on 13 August 2012, and by the Court in the present application, Mr Ross is entitled to continue construction of the development, provided that it is in accordance with the terms of the consent granted by the council. Mr Ross has, therefore, not been in anyway misled by the council in agreeing to the orders made on 13 August 2012. The orders he consented to operate in conformity with the orders that he understood that he had agreed to, the terms of which were correctly represented to him by the council. The council has in no way engaged in anything other than good faith in its dealings with Mr Ross in relation to the consent orders. 30Accordingly, the provisions of r 36.15 of the UCPR have not been engaged. 31Rule 36.16 of the UCPR also does not assist Mr Ross. None of the criteria contained in the relevant sub-rules are enlivened by the facts of this application: (a) the orders made on 13 August 2013 were made with Mr Ross in attendance, are not default orders, and do not concern the possession of land (r 36.16(2)); (b) the orders determine a claim for relief and a question arising from this claim (r 36.16(3)); and (c) the application is far in excess of 14 days since the orders were entered (r 36.16(3A)-(3C)). 32It follows, therefore, that Mr Ross' application must be dismissed. Mr Ross Must Pay the Council's Costs 33Mr Ross submitted that he ought not be liable for the council's costs of the failed motion on the basis that there would have been no requirement to bring the application had the council not represented to him that order 3 of the consent orders made on 13 August 2012 amounted to a stop-work order. 34I did not find the evidence of Mr Ross as to the representations allegedly made by the council to be credible and because these are Class 4 proceedings where costs typically follow the event, it is appropriate that such an order be made in the present case. The Council Seeks an Order to Enter and Inspect the Premises 35As stated above, by notice of motion filed 8 February 2013, the council sought an order providing access to its officers to enter and inspect the premises upon which the development is being constructed. Initially this was opposed by Mr Ross, however, after a short adjournment he consented to the making of such an order. 36It should be noted that prior to the adjournment it was made clear to Mr Ross that the purpose of the order sought by the council was two-fold: first, to ensure that there was compliance with order 3 of the consent orders made by the Court on 13 August 2012; and second, to properly assess and determine the building certificate application. Mr Ross stated to the Court that he understood this dual purpose prior to the Court making the consent order. Orders 37The orders of the Court are therefore that: (1) the notice of motion filed on 1 February 2013 by Mr Raymond Ross is dismissed; (2) Mr Raymond Ross is to pay the council's costs of the dismissed notice of motion; (3) by consent, Mr Raymond Ross, and his agent and servants, shall provide access for officers of the council and the council's town planning consultant, Kerry Nash, to enter the premises known as 8 Bayview Street, Northwood (including all levels of the dwelling house under construction at those premises), for the purpose of carrying out an inspection including the taking of measurements and the taking of photographs. Such inspection to take place on Tuesday, 26 February 2013 at 10.00am for a maximum duration of two hours; and (4) the proceedings are stood over to 4.15pm on 27 February 2013 before Pepper J for further directions. ********** 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: 21 February 2013