Land and Environment Court New South Wales Medium Neutral Citation: Bocce Pty Ltd v Woollahra Municipal Council [2013] NSWLEC 1151 Hearing dates: 8, 9 August 2013 Decision date: 09 August 2013 Jurisdiction: Class 1 Before: Pearson C Decision: By consent: 1. The Order to cease work issued by the Respondent on 15 May 2013 and the subject of these proceedings is revoked pursuant to section 121ZK(4)(a) of the Act. 2. Each party to bear their own costs. NOTE: In making Order 1 by consent, the Court notes the following assurance given on behalf of the applicant: In any Class 4 proceedings commenced by Council arising from a determination of proceedings 10533 of 2013 and 10571 of 2013 which is adverse to the applicant, the applicant will not, for the purposes of the exercise of the Court's discretion under section 124 of the Environmental Planning and Assessment Act 1979, rely upon work done on and from 1 August 2013 in contravention of section 76A of that Act. Catchwords: CONSENT ORDERS - Appeal against order - Stop Work Order - Development contrary to development consent Legislation Cited: Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Civil Procedure Act 2005 Interpretation Act 1987 Cases Cited: Bocce Pty Ltd v Woollahra Municipal Council [2013] NSWLEC124 Category: Principal judgment Parties: Bocce Pty Ltd (Applicant) Woollahra Municipal Council (Respondent) Representation: Counsel Ms H Irish (Applicant) Solicitors Mr R Bennett, Pikes & Verekers Lawyers (Applicant) Mr K Webber, Wilshire Webb Staunton Beattie (Respondent) File Number(s): 10396 of 2013 Judgment 1On 9 August 2013 I made orders, by consent, revoking an Order issued by the respondent Council on 15 May 2013 (the Order) under s 121B of the Environmental Planning and Assessment Act 1979 (the Act). These are the reasons for that decision. 2The Order (125/2013) was issued by the Council in terms of item 19 of the Table to s 121B of the Act, and directed the applicant (Bocce) to "cease carrying out works that ar [sic] not in accordance with Development Consent DA706/2010". The period of compliance with the Order was 4 days from the date of the Order. The reasons for the Order were: 1.Development work is being carried out contrary to development consent DA706/2010 in that the set out, boundary setbacks, levels and design of the dwelling under construction are not consistent with the development consent plans and the Construction Certificate. 2. Critical stage inspections required by condition A.36 of development consent DA706/2010 have not been carried out by the Principal Certifying Authority. 3Development consent DA706/2010 approved the demolition of the existing dwelling and construction of a new residential dwelling at 12 Olola Avenue Vaucluse (the site). That consent was granted on 5 August 2011 by the Court, in accordance with an agreement reached by the parties under s 34(3) of the Land and Environment Court Act 1979 in proceedings 10355 of 2011. 4On 2 April 2013 the Council received a copy of a Notice of Intention to give Order dated 27 March 2013 by the Principal Certifying Authority to Bocce, to the effect that the development consent was not being complied with for various reasons. 5On 30 April 2013 Bocce lodged with Council an application pursuant to s 96AA of the Act to modify development consent DA706/2010 (DA706/2012/1). 6On 12 June 2013 Bocce applied to the Council under s 149B of the Act for a building certificate (BC45/13). 7There are three appeals before the Court. Bocce lodged an appeal under s 121ZK(1) of the Act against the Order on 31 May 2013 (proceedings 10369 of 2013). An appeal against the deemed refusal of the application under s 96AA of the Act for modification of development consent DA706/2010 was lodged on 16 July 2013, proceedings 10533 of 2013 (the Modification Appeal). On 16 July 2013 the Council refused the modification application. An appeal against the deemed refusal of a building certificate was lodged on 26 July 2013, proceedings 10571 of 2013 (the Building Certificate Appeal). 8By Motion filed on 16 July 2013 Bocce sought an order that action on the Order be stayed until the later of the determination of the application to modify development consent DA706/2012, or the complete and final determination of any appeal pursuant to s 97AA of the Act in relation to the modification application. 9On 1 August 2013 Biscoe J heard the Motion, which was resolved on the basis that the three Class 1 proceedings (10396 of 2013, 10533 of 2013, 10571 of 2013) were to be brought forward for hearing together on 8 and 9 August 2013; that there be a consent interlocutory injunction including that the Council be restrained from taking action on the stop work order until final determination of the Modification Appeal; and an order that the applicant not carry out any work on the garage structure until further order. Biscoe J made orders for joint expert reports and other procedural directions to bring the proceedings to a final hearing. The orders made by Biscoe J (Bocce Pty Ltd v Woollahra Municipal Council [2013] NSWLEC 124) included the following: (8) Order 1.b. sought by the applicant's Motion filed 16 July 2013 in proceedings No. 10396 of 2013 is made, namely: An order that the Respondent take no action on the Respondent's Order No. 125/2013 to "Cease carrying out works that ar [sic] not in accordance with Development Consent DA706/2010" dated 15 May 2013 ("the Order"), given to the Applicant, until the complete and final determination of any appeal to the Court pursuant to s97AA Environmental Planning and Assessment Act 1979 with respect to the Applicant's modification application. Order 2 of the notice of motion is stood over to the hearing referred to in Order 1 above. (9)The applicant will not carry out work on the garage structure until further order. NOTE: In making Order 8 by consent, the Court notes the following assurance given on behalf of the applicant: In any Class 4 proceedings commenced by Council arising from a determination of proceedings 10533 of 2013 and 10571 of 2013 which is adverse to the applicant, the applicant will not, for the purposes of the exercise of the Court's discretion under section 124 of the Environmental Planning and Assessment Act 1979, rely upon work done on and from 1 August 2013 in contravention of the respondent Council's Order to cease carrying out works given on 15 May 2013. 10The hearing of the three appeals commenced on site on 8 August 2013 with a view. When the hearing resumed in Court on 8 August 2013 the parties handed up Consent Orders in these proceedings. The hearing of the Modification Appeal proceeded, with evidence concluding on 9 August 2013. The Modification Appeal is adjourned for the hearing of submissions on 14 August 2013. In the Building Certificate Appeal, a joint report prepared by Mr Rade Radovancevic, structural engineer on behalf of Bocce, and Mr Craig Jenner, Team Leader Compliance of the Council, has been tendered (exhibit 6); the parties agree that disposition of that appeal will depend on the outcome of the Modification Appeal. Consideration 11The powers of the Court on an appeal against an order are provided in s 121ZK(4) of the Act in the following terms: (4) On hearing an appeal, the Court may: (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. 12The parties seek, by consent, that the Order be revoked pursuant to s 121ZK(4)(a) of the Act. Bocce offers an assurance in terms similar to those noted in the orders made by Biscoe J. As submitted by Bocce, the orders sought by the parties would remove the subject matter of the appeal so there would be no need for any hearing or disposal of the appeal, and Order 2 as originally sought by Bocce's Motion, namely that any order made under s 121ZK(4)(b), (c), (e) or (f) on the hearing of this appeal be stayed until after the determination of the Modification Appeal, would not arise. 13The issue is whether it is both lawful and appropriate to make the consent final orders. 14The Council submits that the revocation of the Order would be lawful under s 121ZK(4)(a). In considering whether it is appropriate to make the orders sought, the Order was issued to stop work proceeding which was unlawful, and that situation continued until 1 August 2013 when the parties agreed to the orders made by Biscoe J. The Council is of the view that there is no further utility in maintaining the Order. If the Modification Appeal is upheld and the modifications are approved, there is no utility in the Order. If the modifications are not approved, there would be work for an order to do, however the Council would probably commence other proceedings. The Council submits that it is consistent with the overriding purpose in s 56 of the Civil Procedure Act 2005 to dispose of the Order, where the assurance provided by the applicant means that there is no real prejudice to the Council's position. 15Bocce adopted the Council's submissions, and further submitted that the background to the appeal was relevant. Bocce had challenged the validity of the Order, and that was untested. The Order was issued on 15 May 2013 and addressed to Bocce "c/- Mr L W Buckeridge, xxxx, Perth WA 6000", and required compliance with the terms of the Order within 4 days, that is, Sunday 19 May 2013. Insofar as the Order effectively required immediate compliance with its terms, the officer who issued the Order had not, in her report, asserted a belief that the circumstances constituted a serious risk to health or safety or an emergency, so as to override the requirement in s 121M(1) that the order specify "a reasonable period" within which the terms of the order were to be complied with. By the time the order was given the Council had known about the alleged non-compliance with the development consent for more than six weeks. The applicant did not receive the order, via post, until 29 May 2013. Bocce submitted that in circumstances where service of the Order was taken, by virtue of the presumption in s 76(2) of the Interpretation Act 1987, to have been effected on Tuesday 21 May 2013, which was two days after the period for compliance, the Order did not comply with s 121M(1) of the Act and its validity was contested. Bocce submitted that the difference in wording of the assurance given on behalf of the applicant reflects the proposed revocation of the Order. 16The orders made by Biscoe J on 1 August 2013 have resulted in the expedited hearing of the Modification Appeal, which will conclude on 14 August 2013, with judgment to be given as soon as practicable thereafter. The disposal of the Building Certificate Appeal will depend on the outcome of the Modification Appeal, and further consideration of the evidence going to the structural adequacy of the building work undertaken otherwise than in accordance with the conditions of development consent DA706/2010, and there is no reason to consider that that is likely to unduly prolong the proceedings. In the hearing of the Motion before Biscoe J, the Council had expressed concern that if the applicant were unsuccessful in the three Class 1 appeals, and were able to continue with all work as a result of the then proposed interlocutory injunctions, then it may raise the fact that such work had been carried out as a discretionary defence to any Class 4 proceedings brought by the Council for demolition or otherwise in respect of alleged unlawful work. The applicant has accepted the risk of continuing building work in the form of the assurance given during the hearing before Biscoe J, and now in the form proposed in the consent orders. 17I accept the Council's submissions that in those circumstances there is no further utility in the Order. Having regard to all the circumstances, I am satisfied that it is both lawful and appropriate to make the consent final orders as sought by the parties. It is not necessary, in my view, to consider Bocce's arguments as to the validity of the Order. There was no submission that any defect in the Order would affect the appeal under s 121ZK(1) of the Act, or the power of the Court to revoke the Order under s 121ZK(4)(a) of the Act. 18The orders of the Court are, by consent: 1. The Order to cease work issued by the Respondent on 15 May 2013 and the subject of these proceedings is revoked pursuant to section 121ZK(4)(a) of the Act. 2. Each party to bear their own costs. NOTE: In making Order 1 by consent, the Court notes the following assurance given on behalf of the applicant. In any Class 4 proceedings commenced by Council arising from a determination of proceedings 10533 of 2013 and 10571 of 2013 which is adverse to the applicant, the applicant will not, for the purposes of the exercise of the Court's discretion under section 124 of the Environmental Planning and Assessment Act 1979, rely upon work done on and from 1 August 2013 in contravention of section 76A of that Act. Linda Pearson 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: 14 August 2013