Land and Environment Court New South Wales Medium Neutral Citation: Bankstown City Council v Ramahi (No 3) [2016] NSWLEC 41 Hearing dates: 19 April 2016 Date of orders: 19 April 2016 Decision date: 19 April 2016 Jurisdiction: Class 4 Before: Craig J Decision: Refer to [10] Catchwords: PRACTICE AND PROCEDURE - breach of the Environmental Planning and Assessment Act 1979 (NSW) - final orders whether principal judgment should be read as intending that order be made for demolition of an attached garage - decision to authorise erection of garage made in breach of the Environmental Planning and Assessment Act 1979 (NSW) - necessary to read judgment as a whole - demolition of garage included in orders made Legislation Cited: Environmental Planning and Assessment Act 1979 (NSW) State Environmental Planning Policy (Affordable Rental Housing) 2009 (NSW) Cases Cited: Bankstown City Council v Ramahi (No 2) [2016] NSWLEC 34 Category: Consequential orders (other than Costs) Parties: Bankstown City Council (Applicant) Dianna Ramahi (First Respondent) Sam Kayellou (Second Respondent) Helal Wreida (Third Respondent) Ronell Yatim (Fourth Respondent) Ali Yatim (Fifth Respondent) Muhammad Wreida (Sixth Respondent) Representation: Counsel: J E Lazarus (Applicant) P R Rigg (solicitor) (First Respondent) A N Meher (solicitor) (Second Respondent) Not applicable (Third Respondent) P R Rigg (solicitor) (Fourth, Fifth and Sixth Respondents) Solicitors: Lindsay Taylor Lawyers (Applicant) Peter R Rigg Solicitors (First Respondent) Yakenian Solicitor (Second Respondent) Peter R Rigg (Fourth, Fifth and Sixth Respondents) File Number(s): 40150 of 2015 EX TEMPORE Judgment 1. I delivered judgment in these proceedings on 8 April 2016 (Bankstown City Council v Ramahi (No 2) [2016] NSWLEC 34). In the concluding paragraphs of that judgment I made observations as to the final orders that were to be made. At that time I gave procedural directions requiring the parties to bring in short minutes of orders, either agreed or competing, to reflect my reasons for judgment. 2. In accordance with those directions, one draft of the proposed orders was received from the Council by my Associate yesterday, although it was not indicated whether or not those short minutes were agreed in by the other parties. No other draft has been provided. 3. In the draft short minutes that were prepared on behalf of the Council, one of the orders proposed is an order for demolition of a garage attached to the secondary dwelling erected on the subject land. Mr Rigg, who appears for Ms Ramahi, the first respondent, has submitted that, given the manner in which I discussed the nature of the orders that should be made, an order for demolition of the garage should not now be included in the orders to be made. He has not provided now or in advance to today's hearing any alternate draft orders from those submitted by the Council, as my directions on 8 April had required him to do. 4. It is true to observe that under the heading "Substance of orders to be made" that precedes [241] of my judgment I did not state, in terms, that the draft orders should include an order for demolition of the garage. However, it would be wrong, in my view, to read that section of the judgment without taking into account the substance of the judgment, discussing the issues that were raised for determination. The direction given on 8 April for the preparation of short minutes of orders was that they reflect my reasons for judgment. 5. A reading of that judgment would indicate, very clearly, my finding that the secondary dwelling was in breach of three provisions of the State Environmental Planning Policy (Affordable Rental Housing) 2009 (NSW) (ARH SEPP). The third provision which I identified in respect of which breach was demonstrated was the location of the garage attached to the secondary dwelling and its proximity to the rear boundary of the Land. As I stated in the judgment, the minimum setback for a secondary dwelling erected on the Land, by reference to cl 10(1) of Sch 1 to ARH SEPP, was 3m. The setback of the garage which was attached to the secondary dwelling was 0.9m. The extent to which that garage breached provisions of the ARH SEPP is identified in several paragraphs. 6. Having found that both the first and second respondents had acted in breach of the Environmental Planning and Assessment Act 1979 (NSW) (the EPA Act), I proceeded to consider the orders sought by the applicant under the heading "Declarations and remedial orders". Under that heading, at [224] I refer to the order sought by the applicant for demolition of the garage attached to the secondary dwelling in its further amended summons. In that paragraph I identified the breach that would be remedied if both the height of the secondary dwelling was reduced and the garage demolished, as the secondary dwelling would then comply with cl 10(1) of Sch 1 to ARH SEPP. 7. After making observations as to the manner in which a section of the garage had been finished, giving the appearance that it was intended to be used as a bedroom, I observed that "the remedial orders sought" by the applicant in relation to the secondary dwelling were not the consequences of merely technical breaches of the EPA Act, but were substantial in nature and in impact (at [225] and [226]). There were only two remedial orders sought in relation to the secondary dwelling: one for demolition to reduce its height to 3.8m and the second for demolition of the garage. Thus my reference to the orders sought. In the context of principles that I applied to the exercise of discretion to make remedial orders, I said at [227]: "… those orders seek to ensure that Ms Ramahi does not secure a private advantage by maximising the size and number of dwellings on the Land in a manner that contravenes the EPA Act." 1. In those circumstances I do not consider the judgment, read properly as a whole, restricts in any way my capacity, when making final orders, to make an order requiring the garage to be demolished. As I have said, the first respondent has been on notice from day one that demolition of the garage was sought; it was addressed in the draft short minutes that the applicant provided following the delivery of judgment. Until Mr Rigg rose to his feet today there was no indication to the Court that there was any challenge to that position. I propose to make that order. 2. Conformably with the draft short minutes that are otherwise agreed, I propose to make orders that in substance reflect those short minutes. I say "in substance" because I have endeavoured to recast those orders to reflect my own idiosyncratic view as to the terms in which it is appropriate to make the orders sought. 3. Those orders are as follows: Declare that: 1. The complying development certificates listed below and issued by the Second Respondent for the development of a detached secondary dwelling and attached garage (Secondary Dwelling) on land being Lot 60 in DP 12116 and known as 30 Virtue Street, Condell Park (Land) have been issued in breach of the Environmental Planning and Assessment Act 1979 (EPA Act) and are invalid: 1. complying development certificate CDC033/14 issued by the Second Respondent on 19 February 2014; 2. complying development certificate CDC033/14/A issued by the Second Respondent on 7 April 2014; and 3. complying development certificate CDC033/14/A.1 issued by the second Respondent on 2 May 2014. 1. The First Respondent has carried out development, being the construction and use of a two storey addition to the original dwelling house on the Land, located between the original dwelling house and the Secondary Dwelling (the Third Dwelling), that was prohibited development by operation of clause 46(3) of the Bankstown Local Environmental Plan 2001 and clause 4.1B of the Bankstown Local Environmental Plan 2015, contrary to s 76B of the EPA Act. 2. Interim occupation certificate OC 2014/14-033A.1 issued by the Second Respondent on 20 February 2015 permitting occupation of the existing dwelling and two storey addition as a single dwelling was issued in breach of the EPA Act and thereby is invalid and of no effect. 3. Interim occupation certificate OC 2014/14-033A.1 issued by the Second Respondent on 6 May 2015 permitting occupation of the Secondary Dwelling and the alteration and extension to the original dwelling was issued in breach of the EPA Act and thereby is invalid and of no effect. Order that: 4. The First Respondent must undertake rectification work to the Secondary Dwelling to the Applicant's satisfaction and in accordance with any reasonable conditions imposed by the Applicant to: 1. demolish the roof of the Secondary Dwelling to reduce the maximum height of the building to 3.8 metres as measured from the ground level to the topmost point of the roof so that it comprises a single storey, and remove all rooms or any floor space above the ceiling of the ground floor of the Secondary Dwelling; and 2. demolish and remove the attached garage and workshop attached to the northern elevation of the Secondary Dwelling, and reinstate the area occupied by the attached garage with landscaping so that the area is available as private open space. 1. Prior to undertaking the rectification work set out in Order 5, and within 21 days from the date of these orders, the First Respondent must submit to the Applicant: 1. Architectural plans, prepared by an independent and suitably qualified architect drawn to either 1:100 or 1:200 scale as specified below, clearly indicating the existing parts of the Secondary Dwelling together with the works proposed to be undertaken to satisfy Order 5. The architectural plans required at a minimum are: 1. Site plan (1:200) 2. Floor plan (1:100) 3. Elevation plan (1:100) 4. Section (1:100) 5. Demolition plan (1:200) 1. A Waste Management Plan (WMP), setting out details of the type and quantity of materials to be removed. The WMP must identify that any refuse will be disposed of at a facility licenced to accept the demolition material. 2. Details of the builder who will be engaged to carry out the rectification works. The rectification works are to be carried out by a licenced builder and evidence of appropriate Home Owners Warranty Insurance must be provided to the Applicant. 3. Structural engineer's certification to confirm the structural adequacy of all loadbearing building elements including timber framing to Australian Standard AS 1684.2. 1. The rectification work identified in Order 5 must commence and be completed within three months from the date upon which the Applicant notifies the First Respondent in writing of its approval of the documents referred to in Order 6 and is to be carried out to standards required by the Applicant as notified to the First Respondent. 2. Written notice is to be given to the Applicant by the First Respondent prior to the rectification works commencing. Such written notice is to include the date when demolition will commence together with details of the name, address, business hours, contact telephone number and licence number of the person carrying out those works. 3. Upon commencement of the rectification works identified in Order 5, the First Respondent must notify the Applicant that work has commenced and must allow officers of the Applicant to inspect works upon the Applicant giving two (2) days' notice of an intention so to do. 4. The First Respondent is to notify the Applicant once rectification works identified in Order 5 have been completed, upon receipt of which an inspection will be carried out by officers of the Applicant to ensure the works have been undertaken in a satisfactory manner, in accordance with the Orders of the Court and with the documents approved by the Applicant. 5. The First Respondent, by herself, her servants and agents is restrained from using or permitting the use of the existing dwelling on the Land and two storey addition to it other than as a single dwelling. 6. The First Respondent must undertake the following works permanently to modify the two storey extension to the original dwelling so that the original dwelling and the two storey addition together constitutes no more than one dwelling: 1. removal of cupboards, benches, stove, sink and exhaust unit from the 'kitchen' area of the two storey addition to the existing dwelling, being the area described on UBA Plan 003 Revision A dated 16 December 2013 as a 'Bar'; 2. the mechanical exhaust ventilation opening for the range hood is to be removed and the opening is to be made good and appropriately weatherproofed; 3. installation of a permanent internal staircase and opening between the existing dwelling and the two storey addition, generally as depicted on UBA Plan 003 Revision A dated 16 December 2013; 4. demolition and removal of the colorbond dividing fence separating the existing dwelling and the new two storey addition to that dwelling. 1. Prior to undertaking the rectification works listed in Order 12, and within 21 days from the date of this order, the First Respondent must submit to the Applicant: 1. A floor plan identifying the works to be carried out to comply with Order 12, 2. Structural engineers certification to confirm the structural adequacy of all loadbearing building elements including timber framing to Australian Standard AS1684.2. 1. The rectification work identified in Order 12 must be commenced and completed within three months from the date on which the Applicant notifies the First Respondent in writing of its approval of the documents referred to in Order 13 and carried out to standards required by the Applicant as notified to the First Respondent. 2. Written notice is to be given to the Applicant by the First Respondent prior to those rectification works commencing. Such written notice is to include the date when the works will commence together with details of the name, address, business hours, contact telephone number and licence number of the person carrying out the works. 3. Upon commencement of the rectification works identified in Order 12, the First Respondent must notify the Applicant that work has commenced and must allow officers of the Applicant to inspect the works upon the Applicant giving two (2) days' notice of an intention so to do. 4. The First Respondent must notify the Applicant once the rectification works identified in Order 12 have been completed, upon receipt of which notice an inspection will be carried out by officers of the Applicant to ensure that works have been undertaken in a satisfactory manner in accordance with the Orders of the Court and the documents approved by the Applicant. 5. The First and Second Respondents must pay the Applicant's costs of the proceedings as agreed or assessed. 6. Reserve liberty to apply on five days' notice. 7. Exhibits may be returned. ********** 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 April 2016