Land and Environment Court New South Wales Medium Neutral Citation: Inner West Council v Kontellis [2017] NSWLEC 57 Hearing dates: 17 October 2016 Date of orders: 17 May 2017 Decision date: 17 May 2017 Jurisdiction: Class 4 Before: Sheahan J Decision: See Declarations and Orders in [141] Catchwords: CIVIL ENFORCEMENT: Council enforcing requirements of a development consent, and compliance with a statutory order – interaction of planning and dividing fences legislation – discretion – orders made, as sought – costs. Legislation Cited: Dividing Fences Act 1991 Environmental Planning and Assessment Act 1979 Marrickville Local Environmental Plan 2011 State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 Trees (Disputes Between Neighbours) Act 2006 Cases Cited: Conomos v Chryssochoides (unreported, 29 October 1997, matter No 40269 of 1996) Miller v Evans [2010] WASC 127 Rothwell Boys Pty Ltd v Coffs Harbour City Council [2012] NSWLEC 19 Category: Principal judgment Parties: Inner West Council (Applicant) Marika Kontellis (First Respondent) Dimitrios Poulikakos (Second Respondent) Representation: Counsel: Mr M Arch, solicitor (Applicant) Mr A Fernon, barrister (First and Second Respondents) Solicitors: Concordia Pacific (Applicant) Not applicable (First and Second Respondents) File Number(s): 2016/154186 Judgment Introduction 1. This Class 4 civil enforcement proceeding was commenced by Marrickville Council, which has now been absorbed into the present Applicant, Inner West Council. 2. The litigation has been conducted in a climate of regrettable, but worsening, conflict between the neighbouring households directly affected by the building works concerned in the case. 3. The Respondents are Marika Kontellis and her partner Dimitrios ("Jim") Poulikakos, joint tenants who have lived at No. 12 Pine Street, Marrickville since 1996, with their two children, aged 14 and 9. 4. Both Respondents work as "qualified social workers", or "social housing officers" (Tp94, LL33 – 38), or perhaps "social care sector specialists" (at "Zakumi Consulting Pty Ltd", see, e.g., Kontellis, fol 66ff)), but Poulikakos is also a qualified builder (Tp87, LL44 – 45, and p94, LL29 – 38)). 5. Kontellis served as a member of the former Marrickville Council 2008 – 2012 (Tp70, LL37 – 43). 6. The Council claims in its summons (set out in full at [17] below) that the Respondents have: 1. done works at/on No. 12 which do not comply with their development consent ("DC"); 2. disobeyed a statutory order from Council; and 3. encroached on No. 10 Pine Street, with works for which there is no DC. 1. Council seeks declarations, consequential orders, and an order for costs. 2. Council was represented by its solicitor, Michael Arch, and the Respondents by Andrew Fernon of counsel. 3. No. 10, next door to, but generally west of, No. 12, has been owned and occupied by Juliane Khoury (a senior corporate executive) and her husband Franco ("Frank") Chirico, since January 2014. Their son Zac, born on 24 July 2014, lives with them there. (I will refer to Khoury and Chirico, together, as "the neighbours".) 4. Both No 10 and No 12 are located within a low-density residential "R2" zone, under the Marrickville Local Environmental Plan 2011 ("the LEP"). 5. In the R2 zone, only "home occupations" are permitted without consent. The "works" involved in the present case, comprising timber fencing and/or outdoor masonry walls, do not come within the lists of developments which are "permitted with consent" or "prohibited", but, in the usual way, "innominate" uses are "permitted with consent". 6. Council also refutes that the works come within the provisions of the State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 ("the SEPP"). 7. Both Respondents and the neighbour Khoury swore affidavits in the proceedings, and were cross-examined. 8. Chirico provided no evidence, and the Respondents invited the Court to draw a Jones v Dunkel inference against Council from that fact (Tp104, LL23 – 34). 9. Apart from Khoury (who provided two affidavits – dated 18 March 2016, and 4 August 2016), Council relied on: 1. both affidavit and oral evidence from Stafford Maddigan, Team Leader Building, in the Monitoring Services Section of the former Marrickville Council, and also 2. an affidavit provided by Ben Tuszynski, a Senior Building Surveyor in that section. 1. Much turns on conversations, but few, if any, notes were taken, or kept, and none were produced, by the witnesses involved in them (see, e.g., Tp21, LL1 – 15). The Summons 1. The Council's summons seeks the following relief: 1 A declaration that the Respondents have, by themselves, and/or by their servants and/or their agents, breached section 76A(1)(b) of the Environmental Planning and Assessment Act 1979 ("Act") by carrying out specified development for which development consent was required under an environmental planning instrument, the Marrickville Local Environmental Plan 201 (sic) ("LEP"), that was not in accordance with the consent: namely, the construction of a brick wall ("Brick Wall") on Lot 1 of Deposited Plan 962077, known as 12 Pine Street, Marrickville, NSW ("Property") otherwise than in accordance with Development Consent No. 201300483 ("Consent") being the development consent applicable, in part, to the erection of the Brick Wall. 2 In addition to the relief in prayer 1, a declaration that the Respondents have failed to comply with an order that was issued to them on 29 July 2015 by the Applicant under section 121B of the Act which directed them to take such action as is necessary to ensure that the Brick Wall complies with the requirements of the Consent. 3 In addition to the relief in prayers 1 and 2, a declaration that the Respondents have, by themselves, and/or by their servants and/or their agents, breached section 76A(1)(a) of the Act by carrying out development for which development consent was required by virtue of the LEP without first obtaining such development consent; namely, the construction of portions of the Brick Wall on the adjoining property, Lot 1 of Deposited Plan 962895, known as 10 Pine Street ("Adjoining Property"). 4 Should the relief in prayer 1 be granted, an Order that the Respondents take such actions as are necessary to ensure that the Brick Wall is brought into compliance with the requirements of the Consent, including, without limitation, the removal of all portions of the Brick Wall that encroach on the Adjoining Property and the reduction in length of the Brick Wall by two (2) metres, so that it does not abut against the rear of the garage of the Adjoining Property together with restoration of the Adjoining Property to the condition that it was in prior to the erection of the Brick Wall. 5 Should the relief in prayer 2 be granted, an Order that the Respondents comply fully with the Order that was issued by the Applicant on 29 July 2015 by taking all such actions as are necessary to ensure that the Brick Wall is brought into compliance with the requirements of the Consent, including, without limitation, the removal of all portions of the Brick Wall that encroach on the adjoining property at No.10 Pine Street, Marrickville and the reduction in length of the Brick Wall by two (2) metres, so that it does not abut against the rear of the garage of the Adjoining Property together with restoration of the Adjoining Property to the condition that it was in prior to the erection of the Brick Wall. 6 Should the relief in prayer 3 be granted, an Order that the Respondents demolish the Brick Wall and restore the Adjoining Property to the condition that it was in prior to the erection of the Brick Wall on the Adjoining Property. 7 An order that the Respondents pay the Applicant's costs of the proceedings as agreed or assessed. 8 Such further or other orders as this Honourable Court deems fit. The EPA Act 1. Sections 76A(1) and 121H of the Environmental Planning and Assessment Act 1979 ("the EPA Act") are relevant: 76A Development that needs consent (1) General If an environmental planning instrument provides that specified development may not be carried out except with development consent, a person must not carry the development out on land to which the provision applies unless: (a) such a consent has been obtained and is in force, and (b) the development is carried out in accordance with the consent and the instrument. ... 121H Notice to be given of proposed order (1) Notice to whom the order is to be given Before giving an order, the person who gives the order must give notice to the person to whom the order is proposed to be given of the intention to give the order, the terms of the proposed order and the period proposed to be specified as the period within which the order is to be complied with. (2) The notice must also indicate that the person to whom the order is proposed to be given may make representations to the person who gives the order as to why the order should not be given or as to the terms of or period for compliance with the order. (3) The notice may provide that the representations are to be made to the person who gives the order or a nominated person on a nominated date, being a date that is reasonable in the circumstances of the case. In the case of a council this may be a specified committee of the council on a specified meeting date or to a specified employee of the council on or before a specified date. (4) Notice to the other consent authorities If a council proposes to give an order in relation to development for which another person is the consent authority, the council must give the other person notice of its intention to give the order. (5) Notice to principal certifying authority If a council proposes to give an order in relation to building work or subdivision work for which the council is not the principal certifying authority, the council must give the principal certifying authority notice of its intention to give the order. The SEPP 1. The following provisions of the SEPP ([12] above) are also relevant: Subdivision 17Fences (residential zones) 2.33 Specified development The construction or installation of a fence on land within Zone R1, R2, R3 or R4 is development specified for this code if it is not constructed or installed: (a) on a lot, or along a common boundary of a lot, that contains a heritage item or a draft heritage item, or (b) along the boundary of, or within the setback area of, a primary or secondary road within a heritage conservation area or draft heritage conservation area, or (c) on a flood control lot, or (d) on land that is identified as being in a foreshore area. Note. If the fence is a dividing fence, the Dividing Fences Act 1991 [("DFA")] also applies (emphasis added). 2.34 Development standards (1) The standards specified for that development are that the development must: (a) not be higher than 1.8m above ground level (existing), and (b) not be of masonry construction to a height that is more than 1.2m above ground level (existing), and ... (5) Despite subclauses (1) and (2), if the fence is erected on a sloping site and stepped to accommodate the fall in the land: (a) a fence that is required to be not more than 1.2m above ground level (existing), must not be more than 1.5m above ground level (existing) at each step, and (b) a fence that is required to be not more than 1.8m above ground level (existing), must not be more than 2.2m above ground level (existing) at each step. 1. The term "ground level (existing)", used in cl 2.34(1) and 2.34(5), is not defined in the SEPP, but it is defined in the LEP, in these terms: ground level (existing) means the existing level of a site at any point. 1. Clause 3.35 provides: 3.35 Fences (1) This clause applies to a fence that is development specified in clause 2.33 and that meets the standards specified in clause 2.34, other than the standard specified in clause 2.34 (1) (b). (2) The fence must: (a) not be higher than 1.8m above ground level (existing), and (b) if it is located on bush fire prone land—be constructed of non-combustible materials, and (c) not incorporate barbed wire in its construction or be electrified, and (d) if it is constructed of metal components—be of low reflective, factory pre-coloured materials, and (e) if it is on a sloping site and stepped to accommodate the fall in the land—be no higher than 2.2m above ground level (existing) at each step. ... The DFA 1. Any dispute regarding dividing fences (indeed, "any matter arising under [the DFA]") is usually dealt with by the Local Court, or the relevant Local Land Board (see DFA s 13, quoted below in [27]). 2. This Court becomes involved with the DFA mainly when dealing with related tree disputes (s 13A, also quoted below in [27]). 3. The following relevant definitions appear in s 3: dividing fence means a fence separating the land of adjoining owners, whether on the common boundary of adjoining lands or on a line other than the common boundary. fence means a structure, ditch or embankment, or a hedge or similar vegetative barrier, enclosing or bounding land, whether or not continuous or extending along the whole of the boundary separating the land of adjoining owners, and includes: (a) any gate, cattlegrid or apparatus necessary for the operation of the fence, and (b) any natural or artificial watercourse which separates the land of adjoining owners, and (c) any foundation or support necessary for the support and maintenance of the fence, but does not include a retaining wall (except as provided by paragraph (c)) or a wall which is part of a house, garage or other building. 1. Section 4 provides: Determination as to "sufficient dividing fence" In any proceedings under this Act, the Local Court or the Civil and Administrative Tribunal is to consider all the circumstances of the case when determining the standard for a sufficient dividing fence for the purposes of this Act, including the following: (a) the existing dividing fence (if any), (b) the purposes for which the adjoining lands are used or intended to be used, (c) the privacy or other concerns of the adjoining land owners, (d) the kind of dividing fence usual in the locality, (e) any policy or code relating to dividing fences adopted by the council of the local government area in which the adjoining lands are situated, (f) any relevant environmental planning instrument relating to the adjoining lands or to the locality in which they are situated, ... 1. Part 3 deals with "Procedure and implementation". 2. The following sections in Part 3 are relevant: 12 Procedure when agreement not reached (1) Adjoining owners may attend a Community Justice Centre in an attempt to reach an agreement concerning the carrying out of fencing work (including the contributions to be made in respect of the work). (2) If adjoining owners do not agree (within 1 month after one of them has served a notice under section 11) as to the fencing work to be carried out, either owner may apply to the Local Court or the Civil and Administrative Tribunal for an order determining the manner in which the fencing work (if any) is to be carried out. 13 Jurisdiction of Local Court or Civil and Administrative Tribunal (1) The Local Court or the Civil and Administrative Tribunal has jurisdiction to hear and determine any matter arising under this Act. ... (2) An application under this Act that is pending in the Local Court or in the Civil and Administrative Tribunal may be transferred from the Court to the Tribunal, or from the Tribunal to a Court, if it appears to the tribunal to which the application was made that, having regard to the subject-matter of the application and the composition and nature of the other tribunal, it is more appropriate for the application to be determined by that other tribunal. (3) The Local Court or the Civil and Administrative Tribunal which has an application transferred to it under subsection (2) is to determine the application. ... 13A Jurisdiction of Land and Environment Court (1) The Land and Environment Court has jurisdiction to hear and determine matters arising under this Act in proceedings to which this section applies. (2) This section only applies if: (a) application for the exercise of the jurisdiction is made in relation to proceedings under section 7 of the Trees (Disputes Between Neighbours) Act 2006 that have been commenced but not determined, and (b) the tree that is the subject of those proceedings: (i) has caused, is causing, or is likely in the near future to cause damage to a dividing fence, or (ii) is part of a dividing fence and has caused, is causing, or is likely in the near future to cause damage to the applicant's property or is likely to cause injury to any person. ... 14 Orders as to fencing work (1) The Local Court or the Civil and Administrative Tribunal may, in respect of an application under this Act, make an order determining any one or more of the following: (a) the boundary or line on which the fencing work is to be carried out, whether or not that boundary or line is on the common boundary of the adjoining lands, (b) the fencing work to be carried out (including the kind of dividing fence involved), (c) the manner in which contributions for the fencing work are to be apportioned or re-apportioned or the amount that each adjoining owner is liable to pay for that work, (d) which portion of the dividing fence is to be constructed or repaired by either owner, (e) the time within which the fencing work is to be carried out, (f) the amount of any compensation (in the form of an annual payment to either of the adjoining owners) in consideration of loss of occupation of any land, (g) that, in the circumstances, no dividing fence is required in respect of all or part of the boundary of the adjoining lands. ... 15 Enforcement of agreements and orders (1) If an agreement is reached by adjoining owners or an order is made by the Local Court or the Civil and Administrative Tribunal and an adjoining owner bound by the agreement or order fails within the required time to perform his or her part of the agreement or to comply with the order, the other adjoining owner: (a) may carry out the fencing work as agreed on or as determined by the order, and (b) may recover from the defaulting adjoining owner the amount agreed or ordered to be paid by that adjoining owner or (if the agreement or order does not specify the amount to be paid) half the cost of the fencing work carried out. (2) The required time is the time specified in the agreement or order or, if no time is specified, within 3 months after the making of the agreement or order. 1. An appeal lies to the Supreme Court, under s 19, in Part 3 of the DFA, if the order of the Local Court or local land board is considered "erroneous in point of law". 2. Section 26, in Part 4 "Miscellaneous", provides: Act not to affect agreements etc, retaining walls or other Acts Nothing in this Act affects: (a) any covenant or any contract or agreement (other than an agreement arising under this Act) made between adjoining owners in respect of a dividing fence before or after the commencement of this Act, or (b) any law relating to retaining walls, easements of support or other rights of support in relation to land, or (c) provisions relating to fences or fencing work made by or under any other Act. The Evidence Setting the scene 1. In October 2013, the Respondents made both a development application ("DA") to Council in respect of No. 12, and also an application to Land and Property Information ("LPI"), under the auspices of the Registrar General, for determination of the boundary between Nos. 10 and 12. 2. The Council granted DC (No. 201300483) on 6 December 2013 (Maddigan, par 13 and tab 3), for the Respondents: To demolish part of the premises and carry out ground and first floor alterations and additions to a dwelling house, install a swimming pool and a deck in the rear yard, and add an attic above the existing garage. 1. The approved DC plan (Maddigan, tab 3) shows new timber and brick fences at the rear of No. 12 "to boundary to 1800 mm high" (my emphasis). 2. Kontellis conceded (Tp71, LL9 – 38): 1. that the DC did not embrace building any wall on the neighbours' property; 2. that she could have sought, but did not seek, a s 96 (EPA Act) modification to change the word "to" to "on" (or perhaps, "across" – Tp73, LL44 – 46); and 3. that she obtained no relevant easement (Tp73, L48 – p74, L25). 1. She also conceded, in re-examination (Tp80, LL39 – 46), that the Respondents did not make a s 96 modification application "because we just didn't think we needed one". 2. Council issued a construction certificate ("CC" – no 20140166) on 6 June 2014 (Poulikakos par 8 and tab 1). The CC plans state exactly the same specifications for the fences as the DC. 3. The boundary determination was made by the Registrar General on 15 January 2014 (Kontellis and Poulikakos, tab 2, and Khoury, 18 March, annexure A), and copies were provided also to Chirico, Khoury, and the former owner of No. 10 (Shirley Janice Foxley). 4. The determination was made, and notified, just as Khoury and Chirico moved in (Tp15, LL37 – 45). 5. In general terms, it determined that the boundary was slightly to the west of some existing "dividing" fencing, but is "crossed" to the east by some minor structures on No. 10, at the rear of the Khoury/Chirico house. 6. No appeal was commenced (Poulikakos, par 14). Dealings between the owners 1. The Respondents had apparently been in dispute with Ms Foxley regarding the boundary (Khoury, par 6), so they sought to engage immediately with their new neighbours, early in 2014, about "moving the fence in accordance with the LPI determination" (Kontellis, pars 23ff, and tab 3; and Poulikakos, pars 15ff). 2. Relevant discussions between the two couples involved in this present case occurred between February and June 2014. 3. The Respondents claim that the rear timber dividing fence had deteriorated, and they wanted a new, mainly brick, fence there. They say that the neighbours agreed, subject to (1) its being 2.1 m high, and (2) the brick part being paid for by the Respondents. 4. Khoury disputes both the alleged deterioration, and the alleged agreement. 5. She says the parties to the February 2014 talks were to "go away and think of solutions" (Tp23, LL46 – 48. See also p25, LL34 – 35, p28, LL28 – 30, and p31, LL9 – 15). As she said (Tp35, LL2 – 3): ... we wanted the agreement for the entire property and we believed the works would be carried out in one go 1. She certainly disputes that she and Chirico ever agreed to any portion of the brick wall being constructed on their property (her affidavit, 4 August 2016, pars 4, 5, and 9 – 12). 2. So far as the dividing fence at the front is concerned, the two couples were unable to agree at all on what should be done. 3. If it were moved west, the neighbours feared it might restrict their driveway. The works are done 1. Poulikakos obtained a quote (Poulikakos, tab 3), and prepared a "checklist" for the works at the rear (Kontellis, tab 4, and Poulikakos, tab 5). 2. He took down the old rear timber fence on about 26 – 28 June 2014 (Kontellis, par 36, and Poulikakos, par 34), to make way for the brick wall. 3. The neighbours did not co-operate, as they had engaged a solicitor, and were awaiting legal advice before giving any consent (Khoury, 18 March, par 22). 4. Poulikakos, apparently, had his own legal advice (Khoury, 18 March, par 22), and announced that he would "proceed on [his] own" (Khoury, 18 March, par 20, and Poulikakos, tab 6, fol 18). 5. He commenced construction of the wall on 2 July 2014 (Kontellis, par 40, and Poulikakos, par 36). 6. He says that the neighbours agreed that he could build the wall on (c.f. "across") the boundary. 7. He also conceded that he built the dividing wall/fence to 2.1m (Tp92, LL35 – 39). Key correspondence during July 2014 1. The neighbours wrote to the Respondents on 8 July 2014 (Kontellis, tab 5, and Poulikakos, tab 7), in these terms: Dear Jim and Marika RE: 12 Pine Street Marrickville 1. We refer to the above matter and all our prior discussions in relation to the boundary dispute and placement of the fence. In particular: 1.1 The Fence Line from the garage to the back wall of the house 1.2 Boundary issue from the front the house to the garage 2. In relation to 1.1 it is agreed to move the existing fence in accordance with the LPI determination dated 15 January 2014 subject to: 2.1 if fence is part timber and part brick, the brick must be placed on the boundary line 2.2 share the cost on a 50-50 basis once we have both agreed on a quote for the timber component only, please note we are obtaining our own independent quote. 3. In relation to 1.2 we have time and time again discussed that if the boundary line is moved in accordance with the LPI determination dated 15 January 2014 our concerns arising from: 3.1 further restriction on the usage on what is already a very tight driveway; 3.2 the cost of demolishing the fence which is currently in a good state of repair and erecting a new one. 4. We appreciate your frustration with what we are now aware has been an ongoing dispute between you and the former registered proprietors of 10 Pine Street Marrickville. You must appreciate that this is not a problem caused by us. 5. However in the interests of maintaining a good relationship as neighbours we plead for your understanding and in that regard we note that we are prepared to: 5.1 pay you a reasonable market value to be determined by a mutually appointed independent registered valuer for the purchase of the encroaching area at the front of the house; or 5.2 pay for the right of an easement at a reasonable market value to be determined by a mutually appointed independent registered valuer allowing us to maintain the fence as is; 5.3 provide you access to our property for the placement of any scaffolding required for your construction works for an agreed period of time. 6. Please let us know what your thoughts are so we can resolve this issue as amicably as possible. We are willing to have a meeting with you to discuss the above options and to reach a resolution with respect to the above matters. Yours Sincerely, Juliane Khoury & Franco Chirico 1. The Respondents say that they took that letter to represent the neighbours' agreement that the brick wall would "be placed on the boundary, so that it straddled both sides of it" (Kontellis, par 42, and Poulikakos, par 35), but any such agreement is denied ([45] above). 2. Council does not accept that that letter constitutes owner's consent for the construction of the wall (Tp9, LL47 – 49). 3. The Respondents wanted the front wall to be on the determined boundary as well (Kontellis, par 44), but the neighbours were concerned about driveway access ([47] above). 4. The Respondents wrote to the neighbours on 14 July 2014 (Kontellis, tab 6) in these terms: Julie and Franco We are following up with you yet again regarding the fence. We are waiting for you to; 1. Present an alternative quote for the timber fence for the rear of our properties. Please note that the quote for work must encompass at a bare minimum all the requirements discussed by Jim and Frank including galvanised steel posts, palings that do not touch the ground, (H4 timber sleepers to be placed below the palings) and a lap and cap fence. 2. Inform us of what you intend to do with the carport that is encroaching on our property. In the next 10 days we anticipate that our scaffolding will arrive and the side fence which in on our land will be removed. The cost of disposal of that fencing will be equally shared. Replacement of that fence in line with the LPI determination will occur after our building work is complete. The cost of the replacement fence will be shared equally as per the legislative requirements. This formal letter follows the hand written note we gave you a month ago. We do require a response to points 1 and 2. The information in your letter dated 8th July is noted as not reflecting the facts nor the LPI determination. This letter also aims to save us both the embarrassment of you calling the police to allege that your fence was stolen and or any other vexatious allegations. We will negotiate on a preferred quote if you present it to us by Wednesday 16th July 2014. Marika Kontellis. 1. The brick rear fence was completed on about 14 (or 15) July 2014 (Kontellis, par 46, and Poulikakos, par 37, and tab 9). Poulikakos deposes (par 37 – emphasis mine): I finished the brick fence on or about 14th July 2014. The fence is not the proposed brick wall in my Development Application. That wall was to finish 2 metres before the end of the neighbour's garage. The height of that wall was to be no more than 1.8metres and that wall was to be built to the boundary. This fence was now closer to 2.1metres (as requested by the neighbours). It was built on the boundary line, and it finished up against the neighbour's fibro garage as the neighbour's had agreed in our numerous conversations about the fence. Behind Tab 9 ... is a photo of the completed brick fence. Certifiers and Council become involved 1. The Respondents had, in May 2014, engaged "Essential Certifiers", who gave them, on 25 July 2014, a Notice of Intention to Give an Order, under s 121H of the EPA Act ([18] above). The notice (Kontellis, tab 7) was signed by Christopher Manzi, of "Essential", as an "accredited certifier", and a copy was provided to Council. 2. Kontellis (pars 49 – 51) then spoke with Mark Sage, a building surveyor then with the Council (Tp47, LL27 – 29). 3. She says that Sage regarded the Nos 10/12 problem as "a fencing issue ... best dealt with as a [DFA] matter", and said that Council would not act on the notice. 4. Maddigan testified that he understood the Sage/Kontellis conversation was "general" in nature – an "on duty" council officer responding to a citizen's inquiry (Tp48, L6, p51, LL36 – 37, and p63, LL12 – 23), but he does not know precisely what Sage told her. 5. Maddigan's own opinion is that the subject dispute is not a DFA matter (Tp50, L41). 6. He said (Tp58, LL11 –13) that "the [DC] gave consent to the construction of a masonry wall. The wall in its position and its length didn't comply with that development consent. That was council's concern". He also said that DFA issues and proceedings fall "outside of council's jurisdiction" (Tp57, L34). Council's "focus was on compliance with [the DC and the CC]" (Tp57, LL40 – 42). The subject wall is "in a different location. It's not built up to the boundary, it's built over the boundary ... [and] it's longer than what was approved by Council" (Tp62, LL42 – 48). 7. Maddigan deposed (pars 27 – 46) to conducting several inspections of the subject wall – 27 April 2015, 3 September 2015, and 30 November 2015. He observed that the wall remained in the same form and location, save for some removal of bricks from the top of it between 3 September to 30 November, but the wall remained more than 1.5m high, on both sides, the land level being higher on No. 10 than on No. 12. 8. After receiving a letter dated 25 July 2014 from Manzi (Poulikakos, tab 10), Poulikakos exchanged emails and phone calls with Bernie Cohen, also of "Essential Certifiers" (Poulikakos, pars 39 – 40, and tabs 11 and 13, and Kontellis, tab 8). 9. Cohen agreed that the Respondents should take DFA action, in the local court, and "if the local court deems it is not a dividing fence the Notice will apply and rectification will be required". Council gives a Notice 1. On 10 October 2014, Council issued an EPA Act Notice of Intention, in terms similar to Manzi's (Kontellis, par 53, and tab 9, and Poulikakos, par 41, and tab 12). 2. The Council's 10 October 2014 notice said: Circumstances of the Order: Building work is being unlawfully carried out and not in compliance with the terms and conditions of Development Consent No. 201300483. Reasons for the Order: 1. The masonry brick boundary wall and footing are not constructed in accordance with those details shown on drawings DA.06 Revision B dated 23-12-2013 and DA.09 Revision B dated 08-04-3013 (sic) prepared by SMT Studio; 2. Development Consent No. 201300483 granted, provided the masonry brick boundary wall and footing be constructed within the boundaries of Lot 1 DP 962077 No. 12 Pine Street, Marrickville and not to encroach over the boundary onto an adjoining property; What the Order requires you to do: Restore the premises to the condition they were before the boundary wall was unlawfully erected. In order to comply with Development Consent No. 201300483 demolish the masonry brick boundary wall and its footing. 1. The Respondents made representations to Council on 21 October 2014 (Kontellis tab 10), but received no reply (Kontellis, par 54). 2. Maddigan testified that Council received that letter, and considered it, but decided to issue an Order (Tpp56 – 57). 3. Kontellis deposes (par 56) that no Council Order was received. 4. Council sent a "Show Cause" letter on 15 December 2014 (Kontellis par 55 and tab 11), asserting that the Respondents had not obeyed an Order it had served on 31 October 2014 (the order which the Respondents say was not received). 5. Kontellis rang the Council, and the Respondents then wrote to Maddigan, on 19 December 2014 (Kontellis, pars 58 – 59, and tab 12). 6. They appear to have received no response to that letter, although Maddigan expected they would have (Tp61). 7. They did, however, receive a new Notice, given on 5 June 2015 (Kontellis, par 60, and tab 13, and Maddigan, tab 6). The relevant Council Order 1. Council's 5 June 2015 Notice said: Circumstances of the Proposed Order: The Consent has not been complied with as a wall/fence has been erected on the common boundary between the Premises and 10 Pine Street, Marrickville ("Adjoining Property") otherwise than in accordance with the Consent ("Wall"). Reasons for the Proposed Order: 1. The Consent, in part, authorised the erection of a new 1.8m high wall adjoining a pool approved by that same Consent and abutting the common boundary between the Premises and the Adjoining Property (see plan No. DA.09B prepared by SMT Studio and dated 9 October 2013). 2. The Wall does not conform to the requirements of the Consent in the following respects: a. It encroaches on to the Adjoining Property by between 165 and 180mm (see survey plan No.191341_1-KHOU0003/117050 prepared by John Mittelheuser, registered surveyor, for Cardno Hard & Forester); b. It has been erected to a height that exceeds the allowed 1.8m, particularly having regard to the capping stones erected on the Wall (noting that the height is measured from the finished floor level of the development of RL 32.05 (see plan No.DA.06B prepared by SMT Studio and dated 23 December 2013)); and c. It has been erected so that it abuts the rear of the garage on the Adjoining Property whereas it is required to commence approximately 2 metres further from the rear of the garage. 3. These non-compliances impact upon the amenity of the Adjoining Property particularly given that the Wall encroachment takes up useable open space benefiting the Adjoining Property. What the Proposed Order requires you to do: Take such action as is necessary to ensure that the Wall complies with the Consent. 1. The Respondents engaged HWL Ebsworth to deal with Council on their behalf (Kontellis, pars 61 – 63, and tabs 14 – 15). Kontellis acknowledged (Tp76, LL25 – 31) that she gave the instructions which led to the letter which HWL Ebsworth wrote on the Respondents' behalf to Council, on 24 June 2015 (tab 14). 2. It is to be noted that that letter conceded (fol 22) that the DC had "not been complied with", but not to the extent "stated in the Notice". 3. Kontellis also confirmed (Tp77, LL26 – 30) that the Respondents claim that the "fence", as a dividing fence, is "exempt development". 4. Council issued an Order in the same terms as the notice ([79] above), on 29 July 2015 (Maddigan, tab 8), and it is upon this order that Council's summons relies ([17] above, item (2)). 5. The Respondents complain that, as the notice was not served on the PCA, the subsequent order is invalid (Tp9, LL10 – 14). 6. Maddigan disagrees (Tp53, L39 – p54, L20), and I should indicate at this point that I think his interpretation of the law is correct (see [138](2) below). 7. The survey to which the Notice and Order referred appears to have been attached to the Order (and appears in Maddigan, tab 8, and in Khoury, 18 March, annexure F). It was signed by John Mittelheuser of Cardno Hard & Forester ("Cardno"), and was dated 21 July 2014. Survey marks had been placed on the land in accordance with the LPI determination dated 15 January 2014. The survey report was stated to have been prepared "for the exclusive use of Ms J Khoury only". The subject brick wall to the rear of the two houses is shown to "straddle" the surveyed boundary. 8. Despite the Respondents' having engaged lawyers, when Maddigan issued another "Show Cause" letter on 7 September 2015 (Maddigan, tab 10), Kontellis herself wrote directly to Council, on 10 September 2015 (par 64, and tab 16, and Maddigan, tab 11). 9. Council replied (Maddigan, tab 12) that it was proceeding, and would commence (these) Class 4 proceedings to enforce its Order. 10. Council's solicitor (Michael Arch) began writing to the Respondents on 6 October 2015 (Kontellis pars 69 – 71, 73 – 74, and tabs 19 – 21, and 23 – 24) seeking compliance with Council's Order. 11. The Respondents sought a meeting with Council "to discuss alternative strategies" (Poulikakos par 46 and tab 15), but Council declined, during November and December 2015, insisting on the Respondents' strict compliance with their DC (Kontellis tab 29, fol 97, items 9 – 11). 12. After a letter from Arch, dated 5 November 2015 (Kontellis, tab 24), the Respondents reduced the height of the wall. Kontellis deposes (par 75): Following this last communication, and Council's reluctance to meet with me to discuss alternative strategies I decided that the brick wall should (sic) altered by reducing its height to comply with the requirements of the SEPP (Exempt and Complying Development) Code 2008, clause 2.34(5), by reducing the height to 1.5 metres height (sic). Our rear yard is sloping and the brick fence as originally constructed was stepped to take account of that slope. 1. A Council inspection was arranged (Kontellis, pars 76 – 77, and tabs 25 – 26). 2. Kontellis wrote to Arch on 26 November 2015 (Kontellis, tab 25, p84, and Poulikakos, tab 15), saying, inter alia: In the absence of Council's willingness to meet or, at the least have a conversation regarding the range of potential strategies to comply, we will use the advice we have received and continue with our compliance works to meet requirements. Our aim is to meet Council's deadline (Monday 30th November) but this is dependent on weather, tradesman's availability, and most importantly, possibly gaining access to our neighbour's property to carry out the works safely, efficiently and effectively. ... If you need any information about our compliance with Council's order please do not hesitate to contact me directly. Mr Arch, I again confirm our willingness to comply to (sic) requirements. ... Council is of course free to connect with us at any time before this should they want to seek further information from us, or come and inspect the progress of our compliance works. 1. Khoury complains (18 March, pars 31 –39, and 42 – 43, and 4 August, par 15) that the removal of bricks from the top of the wall, in November 2015 and February 2016, has left the wall with an "unfinished" appearance (see photographs in Maddigan's tab 13). 2. She considers that the appearance of the top of the wall ("rough and uneven mortar" – Tp94, L18) is "objectionable, unpleasant and an eyesore", and that the amenity and privacy of No. 10's backyard and rear dining room "has been adversely affected". She is no longer comfortable to allow her son to play in the backyard; she believes the value of her property has been reduced; and she is still worried that the wall will "impact negatively on the usefulness and convenience" of her planned new driveway. 3. The neighbours (Khoury, 4 August, pars 14 – 20, and annexures B and C) "continue to object to the presence of the brick wall on [their] property and wish to have it removed as soon as possible". It is "not properly aligned with" the timber fence, which they say they built in accordance with the orders of the Local Court. 4. However, Poulikakos testified (Tp87, LL38 – 40) that the brick and timber fences "follow the same boundary line". 5. Exhibit R2, which is a drawing done by him (Tp86, LL16 – p87, L26) suggests that the brick wall is 230mm wide (with 350mm pillars), and the timber fence 180mm wide. 6. At the time of the tender of Exhibit R2, both Fernon and Arch asked Poulikakos some questions about it. 7. For completeness, I set out the following evidence given by Poulikakos, in regard to the exhibit (Tp86, LL30 – 34, and 40 – 43; p87, LL7 – 13, and 38 – 40; p88, LL7 – 10, and 24 – 29): FERNON ... Q. This is the brick wall, the subject of this dispute? A. Yes, it is, and the drawing on the top part which says "treated pine timber fence" is a drawing of what the timber fence currently placed on the rest of our boundary, or most of our boundary, looks like from the top. So it stipulates the width. ... Q. Relevant (sic) to this brick fence, where is the treated pine timber fence located? A. The garage of number 10, the shed, has a brick wall which is 10 metres long progressing towards the back wall. The difference between where the brick wall finishes to the back wall of the property is the timber fence. ... Q. In relation to the brick fence, the measurements, are they the same? A. The measurements of those stipulate the three piers. There's an end pier, a middle pier and another end pier. Those piers are 350 millimetres square, so they're 350 wide, they're 350 basically in a round circle. Yep, and then the majority of the wall, that consists of 10% of the wall, those three piers. 90% of the wall is 230 millimetres wide, which is the other section, which is two bricks wide. ... Q. Can I ask you this, does the treated pine timber fence and the brick fence, do they follow the same boundary line? A. Yes, they do. ... ARCH ... Q. Assuming that that fence was placed on the approximate boundary line established by LPI, that would necessarily imply that about 175 millimetres in width of this fence would be on each side of the boundary, would it not? A. That's correct. ... Q. That survey [by Mittelheuser, of Cardno, dated 21 July 2014, found at p16 of Khoury, 18 March 2016], ... commissioned by Ms Khoury, shows that the piers of that wall do project onto the property at number 10 by the approximate amount that we've just discussed, does it not? That survey shows that the wall projects onto the, or it crosses the boundary, however you might choose to term it, by between about 160 and 180 millimetres, does it not? A. Yes. 1. One issue in dispute between Council's solicitor (Arch) and the Respondents was the Respondents' contention that their land was "sloping" (Kontellis, par 85). Arch wrote, on 14 December 2015 (tab 29, fol 96, item 3, to fol 97, item 5): 3. The requirements of clause 2.34 of the SEPP are, as a matter of fact, stated with complete accuracy in our letter of 10 December 2015. The wall is incontestably of "masonry" construction (it is built from bricks). Under the SEPP it may not be taller than 1.2 metres in height (clause 2.34(1)(b)). 4. The relevant part of your property is not "sloping". It is virtually flat. In any event the wall is more than 1.5 metres in height, the maximum height that would be permissible even if it were to be accepted for the sake of argument that this land is "sloping". Moreover, the wall is not "stepped" to accommodate the (non-existent) fall in the land. The wall therefore does not qualify as exempt development. 5. We have explained the requirements of the SEPP in our letter of 10 December 2015. There is no need for us to traverse the reasons why the wall does not qualify as exempt development again. 1. The Respondents engaged a surveyor, Graham Wilson (Kontellis par 86 and tab 30). Wilson certified on 19 January 2016 (tab 30, fol 99): The land slopes from the rear to the front. The brick wall stands no more than 1.5m above the original ground level. The brick wall is located as shown in the attached sketch. [fol 100] DFA proceedings in the Local Court 2015 – 2016 1. Poulikakos lodged an application with the Local Court, under the DFA, in August 2015 (Kontellis, par 66, and tab 17, and Poulikakos, par 44, and tab 14), and the Respondents filed a statement in support (Kontellis, par 67, and tab 18, and Poulikakos, tab 14), on 25 October 2015. 2. It was expected to come on for hearing on 10 December 2015 (Kontellis, pars 78 – 81, and Poulikakos, par 45). 3. The neighbours also issued a local court summons regarding the fence (Kontellis, pars 82 – 83). 4. The Local Court hearing took place on 25 January 2016. The Respondents separately tendered before me some transcript of the Local Court argument, and of the learned magistrate's oral decision (Exhibit R1). 5. Khoury's sister, Ms Pierette Khoury, a solicitor, appeared for her, and made oral submissions to Magistrate Robert Williams (Tp14, LL1 – 23). She said (Exhibit R1, p22, LL12 – 29): MS KHOURY ... In terms of the brick wall, this is matter (sic) now that's in the Land and Environment Court and it's a matter that council is currently investigating but once the brick wall is removed in accordance with the order made by council the timber fence can then be placed on the boundary line and the brick wall can go inside the applicant's land. So my client is willing to make that concession once the brick wall has been removed and my client has also made the concession at the rear of the property in an attempt to try and resolve this matter. HIS HONOUR: So the timber fence can be placed on the boundary line? MS KHOURY: Where the brick wall is at the moment. So once that has been removed, on the boundary line. We're not seeking that that be--- HIS HONOUR: There's no issue about boundary line. That's the boundary, isn't it? MS KHOURY: That's the boundary. 1. Before me, Fernon asked Khoury about her "position" as at the time of the Local Court hearing, and she gave the following evidence (Tp38, L17 – p39, L6): Q. When this matter came before the Local Court it was your position, was it not, that the brick fence that had been installed had been installed on the boundary, correct? A. It was on my property encroaching, if that's what you mean, yes. Q. No, that's not what I mean. What I said is, it was your understanding that the brick wall that had been constructed had been constructed on the boundary, correct? A. Without my approval. Q. But do you agree with me that it had been constructed on the boundary, that's your understanding, correct? A. Yes, encroaching my property, yes. Q. You sought to have that brick wall removed from the boundary line and replaced with another fence, being a timber fence, that was to be placed on the boundary line, correct? A. No. What, what we sought to have is that council had served an order so the brick wall in relation to the Local Court matter was not to - was not being handled as part of that, as Marrickville Council was dealing with that as a separate matter. Q. It was a very simple question-- A. Because of the encroachment. Q. --that I asked you. What I asked you was before the Local Court you were seeking effectively to have the brick wall that had been built removed and replaced with a timber fence in the very same place that the brick wall had been placed, correct? A. That's not correct. We did want it to have - we did want to (sic) brick wall removed from, from there, and we were prepared to pay for a timber fence and then the neighbours could put the brick wall solely onto their property and do what they wanted to. Q. The timber fence was going to be placed where the brick wall previously was located, correct? A. No, it would be placed as per the LPI. Q. Which was where the brick wall was, correct? A. No, because the brick wall encroaches my property. 1. Later in her evidence (at Tp41, LL40 – 41) she added: And what we were willing to do was pay for the timber fence to be fully aligned because at the moment we have a zigzag. That's what (sic) all we wanted. 1. The Magistrate's DFA determination was made on 3 February 2016 (transcript also in Exhibit R1; see also Khoury, 18 March, par 40, with the document at annexure G; Kontellis, par 87, document at tab 31; and Poulikakos, par 48, document at tab 16). 2. It relevantly says: NOTATIONS: A. The Applicants and the Respondents are neighbours. The Applicants own property 12 Pine Street, Marrickville. The Respondents own property 10 Pine Street, Marrickville. B. The Applicants have filed an application seeking Orders under the Dividing Fences Act 1991. C. The Court has jurisdiction to determine this matter in accordance with the Act. D. In January 2015 the Registrar General made a determination as to the Boundary line between the Applicant and the Respondents properties. A copy of that determination has been attached to these Orders and Marked "A". No appeal was lodged against this determination and the boundary is legally fixed in accordance with the determination. E. To assist the interpretation of these Orders the court has delineated on the Document Marked "A" 4 sections of the boundary line from rear to front of the line and these sections are marked Area 1, 2, 3 and 4 respectively. ON THE 3RD FEBRUARY 2016 THE COURT ORDERS AS FOLLOWS: 1. That within 2 Months from the date of these orders a dividing fence between the properties of the Applicants be erected along the boundary line as determined by the Registrar General and set out in surveyors drawing dated the 7 January, 2014 and marked as annexure "A" attached to these Orders. The fence is to be erected in each delineated area as follows: (i) Area 1 rear fence to brick fence. That a 2.1 metre high lap and cap timber fence is to be erected on the boundary line that has been determined by the Registrar General and as shown in Document Marked "A" as per quote of Justash Fencing & Gates dated the 16th January 2016 and marked as document 8 in the documents of the Respondent. This fence is to have included steel posts and sleepers as per the quotation. The cost of removal of current fence and installation of this fence is to be paid equally by the parties. (ii) Area 2 approximately 10 metres to rear of Applications (sic) home and adjoining the respondents old fibro garage on the fence line. The current Brick wall located on the boundary as determined by the Registrar General is DECLARED a sufficient Dividing fence pursuant to section 4 and no dividing fence order is required is (sic) to be made in relation to this Area. (iii) Area 3 from commence of the old fibro garage of Carport (sic) to the commencement of the picket fence in line with the front building alignment of both properties. (a) That the side of the Carport adjoining the boundary is to be demolished and (b) That from the front of the old fibro garage as set out in survey of Robert Lahood dated the 7th January 2014 a 1.8 metre high lap and cap timber fence is to be erected on the boundary fine that has been determined by the Registrar General and as shown in Document Marked "A" in accordance with the quote of Justash Fencing & Gates dated the 16th January, 2016 and any further quote obtained from Justash Fencing & Gates for the construction of a fence in place of the current carport wall. The cost of removal of current fence and carport wall and the installation of the fence for Area 3 fence is to be paid equally by the parties. (iv) Area 4 from the front building alignment of both properties to the front boundary on Pine Street. That a picket fence is to be erected or realigned on the boundary line as determined by the Registrar General and as shown in Document Marked "A". The cost of removal of current fence and installation of this fence is to be paid by the applicant. ... 1. The LPI determination was attached to the Local Court determination (e.g. Kontellis, fol 104), and the survey attached to it was marked up with the four areas to which it referred. 2. Fernon noted, and complained, that Council does not accept that the Local Court's orders duly authorise the wall in its constructed position (Tp9, LL49 – 50): DFA s 4(f)), but, rather unexpectedly, he seemed to acknowledge that such orders must be subject to the requirements of environmental planning instruments (Tp10, LL36 – 38). Subsequent events 1. Khoury deposed (4 August, pars 17 – 18): 17. We built the new timber fencing on the boundary line as determined by the Land and Property Information Office in January 2014, as we were required to do by the Orders of the Local Court. 18. However, because the brick wall that has been constructed by the respondents encroaches over the common boundary, the fence and the wall are not properly aligned with each other. 1. Before me the following exchange occurred between Fernon and Khoury (Tp42, LL18 – 41): Q. The fencer had been approved by the Local Court? A. Correct. Q. You had it installed, is that right? A. We did. Q. Have you obtained any council approval for that? A. For the timber fence? Q. Yes, up to 2.1 metres high, did you get any council approval for that? A. No, we didn't get any council approval because it was in the Local Court paperwork. Q. If it's in the Local Court paperwork it was your view that you didn't need council consent, is that right? A. It's not part of the development consent, only the brick wall is part of the development consent. Q. But you agree with me there's no consent applicable to the timber fence that you constructed? A. That's 2.1? Q. That's 2.1 metres high? A. No, we constructed it-- 1. Tuszynski deposed (pars 6 – 7) that he inspected the two properties on 19 February 2016 with Kontellis, Khoury, and some of their advisors. He assisted in measurements, and took notes and photographs (pars 9 – 11, 13, and 15). The Respondents' surveyor took measurements of the wall on the boundary at the rear, from both the No. 12 side and the No. 10 side. The No. 12 measurements at four points were recorded as 1.715,1.65m, 1.735m, and 1.67m, and those taken from the rear of No. 10 were recorded as showing a height of 1.5m "along its entire length" (par 13). Tuszynski observed (par 12) that "new clean fill had been placed against [the] wall on the 12 Pine Street side" (see photo A), and (par 14) that the "level of the ground on the 'No. 10' side ... was higher than ... on the 'No. 12' side ...". 2. Kontellis deposed: 88. We have completed the other parts of our fence. The new timber fence at the rear of our property is perfectly matched up with brick fence in that both parts of the fence are built on the boundary. ... 89. I have written directly to my neighbours seeking their agreement as to how this fence should be finished to match the height of the other part of the fence. A copy of that letter is behind Tab 33 of the Exhibit. 1. The letter to which she referred (in par [89] quoted in my last paragraph, i.e. the letter at tab 33) was dated 22 May 2016, and said: Dear Ms. Khoury and Mr. Chirico I write to you in relation to the brick fence that separates a 10 metre section in the rear of our yards. In the Local Court Fencing Dispute Matter this fence was termed as Area 2. As you maybe (sic) aware, Marrickville Council agreed to have a mediation session regarding their Order in relation to this brick fence. The mediation session was held on Wednesday 18th May 2016. The purpose of the mediation session was to determine whether or not an agreement can be reached to resolve this matter of an Order. Based on what Mr. Arch explained and the contents of your Affadavit (sic) it would appear that you are primarily concerned about; 1. The height – in that it is too low and does not offer you the privacy you want 2. The fence is placed "on" the boundary as opposed to being "to" the boundary and in your opinion is encroaching on your property and impacting your amenity. We are seeking to resolve this matter and in doing so would value your preference in relation to what we do next with this brick fence. We propose the following remedy 1. At our cost- build up the brick fence to a height of 1.8 metres plus capping OR 2. At our cost, build up the fence, to a height of 1.8metres using timber or mock wood to beautify the finish This brick fence is now perfectly aligned to the timber fence that has been installed in the rear of our properties. In other words both fences are place (sic) ON the boundary. Should you not agree to either 1 or 2 then please inform us what you would like as an alternative. We appreciate your response at your earliest convenience. Yours sincerely, Marika Kontellis and Jim Poulikakos 1. Kontellis further deposed (par 90): 90. My neighbours never responded to my letter. I did however receive a response to the letter I wrote to my neighbours from Council's appointed solicitor via Mr. Andrew Fernon, our appointed legal representative. ... 1. Arch's letter to Fernon (at tab 34), dated 1 June 2016, relevantly said, in part: We have been notified by the owners of No. 10 Pine Street that your clients have approached them (by letter dated 22 May 2016) with a proposal to restore the height of the existing brick wall to 1.8 metres either with brick material or timber or mock wood. The difficulty with that proposal is that it will perpetuate the unlawful condition that has given rise to these proceedings in the first instance: namely, that the wall will be maintained in its present position, and will thus continue to encroach on the property of No. 10 Pine Street. As the undersigned has noted repeatedly, the problem with that approach is that the extant development consent does not authorize any building works of any kind on No. 10 Pine Street (without respect to the "height" of any wall). We have been contacted by the owners of No. 10 and have been advised on a without prejudice basis that, if the brick wall is removed in its entirety from their property, they will, at their own expense, extend the fence that now extends a part of the length of the common rear boundary the remaining length of the boundary. We are advised by the owners of No. 10 that this fence would be constructed of timber to "match" the section of fence that has recently been installed in accordance with the orders of the Newtown Local Court. The fence would be 2.1 metres in height which would assure the privacy of both properties. The fence would be erected on the boundary of the two properties, as has been determined by the office of Land Property Information in 2014. In order to implement this solution it would be necessary for your clients to apply to the Council (now the "Inner West Council" following the recent council amalgamation that has occurred at the direction of the NSW State Government) to modify the extant consent pursuant to section 96 of the [EPA Act]. ... Competing Submissions Council's case 1. In his oral submissions on Council's behalf, Mr Arch relies upon the Respondent's admissions that their works do not comply with their DC – the wall is built "on" the boundary and encroaches upon the neighbours' land; it is also approximately 2m longer than shown the approved plans; and it was originally 2.1m high. 2. As he submitted (Tp100, LL8 – 11): ... the approved plans had to be followed, and those plans said that the wall could only be built to the boundary, could only be 1.8 metres in height, and could not extend to abut the rear garage. 1. The admissions upon which Mr Arch relies were explicit in Poulikakos's affidavit (par 37 – see [60] above), and in the letter written by HWL Ebsworth on the Respondents' behalf, and on Kontellis's instructions ([80] above). 2. The alleged non-compliances are accurately set out in the Council's order, which has never been appealed, and any agreement, acceptance, or acquiescence, by the affected neighbours is not relevant to the fact of breach. The beneficiary of a grant of consent may decide not to take it up – at all, or in full – but, if it is taken up, its terms must not be infringed. 3. In any event, Mr Arch submits that the claim by the Respondents that the neighbours gave their "consent" is "not sustained by the evidence" which I have summarized above (Tp97, L34). 4. I respectfully accept that submission – Khoury's version of relevant events was not shaken by Mr Fernon's cross-examination, and I am satisfied that, as late as Poulikakos's declaration that he would commence works in late June 2014, the neighbours "told him in the most unequivocal terms that they were not consenting to any building works going forward" (Tp99, LL12 – 14). 5. The neighbours' letter of 8 July 2014 ([55] above) was couched in terms not of consent, but of an attempt to negotiate a resolution, and the Respondents' reply of 14 July 2014 ([59] above) supports this interpretation. 6. As Mr Arch says (Tpp100 – 101), retrospectively seeking to avoid the limitations of the DC, by claiming the works are either "exempt development" or a dividing fence, does not overcome any breach. 7. The purposes of the legislative regimes (the EPA Act and the DFA) are completely different, and, as built, the wall does not come within the requirements of the SEPP – it is more than 1.5m high, even allowing for the claimed slope of the land, the evidence for which is, in his submission, inadequate. 8. On the questions of relief and discretion, Mr Arch points to the adverse amenity impacts on the neighbours, as established by the evidence: 1. the wall is not "a finished structure", especially in terms of its top; 2. the neighbours suffer from loss of privacy, and from the overlooking of their rear yard and dining area; 3. the neighbours' land now has reduced development potential, including the effect of a crooked driveway; and 4. the brick and timber fences "don't match up exactly". 1. He urged the Court to make all the declarations and orders Council sought in its summons. The Respondents' case 1. Mr Fernon provided a written "Outline of Submissions", as well as making oral submissions. 2. In summary, he argues that: 1. these proceedings concern a different fence from that which was the subject of the DC, so the DC is not relevant (subs pars 1 to 3) – no pool has been constructed, so the approved pool fence has not been needed; what has been constructed is a "dividing fence on the boundary", as per the Local Court determination of 3 February, and as per the alleged "written agreement reached between" adjoining owners, which, he says, is evidenced by the letter of 8 July 2014 ([55] above) (see Tp103, L46 to p104, L17); 2. the order Council seeks to enforce is invalid, because the notice of intention to give it was not "served on Mr Manzi", the appointed certifier, as he submits is required by s 121H, and because the order relies on the DC, which does not apply (subs pars 8 to 10; and see Tp106, L49 to p107, L19); 3. the subject "development" is "exempt development", within the relevant SEPP, so Council's consent was not required, and it enjoys the consent given, both orally and in writing, by the neighbours, before the works "on the boundary" were performed. (It is not the pool fence, which the DC required be built "to the boundary"). The letter of 8 July 2014 was held by the Local Court to "constitute a consent from the owners of No. 10", and this Court should not depart from that (final) finding (subs pars 11 to 16, Tp104, L44 to p105, L24, and p107, L23 to p108, L40); 4. insofar as there be any issue regarding "on", c.f. "to", c.f. "across", the boundary, Miller v Evans [2010] WASC 127 holds (at 22]) that "a boundary is an infinitely small line having no width of its own", so anything built "on" a boundary will encroach equally on both sides of the boundary line. " Any approval to build a boundary fence on the boundary line necessarily involves the approval for that fence to encroach or straddle the boundary line. The survey reports clearly show that the wall has been built to straddle the boundary." (Subs pars 18, 19, and 26 to 31, emphasis in original; and see Tp105, L27 to p106, L36); 5. once the Respondents gained approval from the Local Court, and relied on it, it cannot be withdrawn, "as a matter of estoppels and planning legislation" (subs par 20, and Rothwell Boys Pty Ltd v Coffs Harbour City Council ("Rothwell") [2012] NSWLEC 19); 6. the Local Court "approval" included an order in the following terms: "The current Brick wall located on the boundary as determined by the Registrar General is DECLARED a sufficient Dividing fence pursuant to section 4 and no Dividing fence order is required is (sic) to be made in relation to this Area" [being Area 2 on the relevant plan, i.e. "being the area where the current fence is located"] (subs pars 21 – 22); 1. the order in (6) was not appealed, and, under s 12 of the DFA, it is "determinative of the rights as between the owners of No. 10 and No. 12" (subs par 23); 2. "In making such an order or declaration, the Local Court had the power to determine the location and the nature of the work to be carried out (section 14 of the Dividing Fences Act). It was required to take into account any relevant environmental planning instrument (of which the Marrickville LEP is such a document) (see s. 4 of the Dividing Fences Act" (subs par 24); 3. Council has wrongly refused to recognise the neighbours' oral or written consents, or the order of the Local Court (subs par 25); and 4. any breach in this case should be held "to be merely technical, relatively minor, and largely caused by Council's attitude to the owners of No. 12, and should not lead to any order. In support of the Court's so exercising its discretion, Mr Fernon cited: (a) Council's attitude to the Respondents; (b) the Respondents' persistent efforts to find a resolution; (c) the Respondents' justified reliance on the Local Court decision; and (d) the neighbours' suffering no practical loss of amenity. The proceedings should be dismissed with costs (subs pars 32 to 36, and Tp108, L40 to p110, L10). 1. In support of an exercise of discretion in the direction sought by the Respondents, Mr Fernon cited my decision in Conomos v Chryssochoides ("Conomos" – unreported, 29 October 1997, matter No 40269 of 1996). Consideration 1. On the whole, Mr Arch's submissions on Council's behalf are to be preferred, and will be accepted. They are based on Ms Khoury's evidence, which I also accept, and I decline to draw any adverse inference from the failure of Mr Chirico to give evidence. 2. In his closing submissions, Mr Fernon said (Tp109, LL46 to 48): ... what the council has done is conflated the issues in relation to the development application and in relation to the dividing fence, and failed to draw the proper distinction, as it should have done. 1. In my view, that is precisely the error into which Mr Fernon fell in his efforts on behalf of the Respondents. 2. Taking Mr Fernon's points one at a time: (1) the consent argument is clearly wrong. An agreement between adjoining owners is often a necessary step in the making of a DA, but it is no substitute for the grant of any DC mandated by a planning instrument, and the Respondents in this case are clearly in breach of their DC; (2) the "invalid order" point also fails. Section 121H(5) requires the Council to give notice to the PCA, not necessarily by serving on the PCA a copy of the notice served on the landowner, and I accept Mr Arch's submissions (see, especially, Tp110, LL30 to 50) that Council complied with that notice requirement. Indeed, Council's notice of intention mirrored Manzi's; (3) Mr Arch's submission that the SEPP is not engaged in this case is clearly correct, and the letter of 8 July 2014 is equally clearly not a "consent" within the requirements of the EPA Act or any alternative requirement; (4) the applicable DC clearly required the brick wall/fence not to encroach upon or across the LPI-determined boundary; (5), (6), (7), (8), (9) the submission that the Local Court determination overtakes the requirements of the EPA Act is clearly wrong, and I can find nothing in Rothwell to disturb that reasoning; and (10) on the question of discretion, the Respondents' reliance on Conomos is completely misplaced – the Applicants in that case were granted orders for relief, but not strictly in the terms sought (see discussion of the need for "proportionality" at p19 of my judgment). 1. The Applicant Council is entitled to all the relief it sought in the summons ([17] above). 2. Costs should follow that "event". Orders 1. Accordingly, I make the following declarations and orders: 1. A declaration that the Respondents have, by themselves, and/or by their servants and/or their agents, breached section 76A(1)(b) of the Environmental Planning and Assessment Act 1979, by carrying out specified development for which development consent was required under an environmental planning instrument, the Marrickville Local Environmental Plan 2011, that was not in accordance with the consent: namely, the construction of a brick wall on Lot 1 of Deposited Plan 962077, known as 12 Pine Street, Marrickville, NSW otherwise than in accordance with Development Consent No. 201300483, being the development consent applicable, in part, to the erection of such wall. 2. A declaration that the Respondents have failed to comply with an order, that was issued to them on 29 July 2015, by the Applicant, under section 121B of the Act, which directed them to take such action as is necessary to ensure that the brick wall complies with the requirements of the said Development Consent. 3. A declaration that the Respondents have, by themselves, and/or by their servants and/or their agents, breached section 76A(1)(a) of the Environmental Planning and Assessment Act 1979, by carrying out development for which development consent was required, by virtue of the LEP, without first obtaining such development consent, namely, the construction of portions of the brick wall on the adjoining property, being Lot 1 of Deposited Plan 962895, known as 10 Pine Street, Marrickville. 4. I Order that the Respondents take such actions as are necessary to ensure that the subject brick wall is brought into compliance with the requirements of the said Consent, including, without limitation, the removal of all portions of it that encroach on 10 Pine Street, Marrickville, and the reduction of its length by two (2) metres, so that it does not abut against the rear of the garage at 10 Pine Street, Marrickville, together with restoration of 10 Pine Street, Marrickville, to the condition it was in prior to the erection of the wall. 5. I Order that the Respondents comply fully with the Order that was issued by the Applicant on 29 July 2015, by taking all such actions as are necessary to ensure that the brick wall is brought into compliance with the requirements of the said Consent, including, without limitation, the removal of all portions of it that encroach on 10 Pine Street, Marrickville, and the reduction of its length by two (2) metres, so that it does not abut against the rear of the garage at 10 Pine Street, Marrickville, together with restoration of 10 Pine Street, Marrickville, to the condition it was in prior to the erection of the wall. 6. I Order that the Respondents demolish the brick wall and restore the property at 10 Pine Street, Marrickville, to the condition it was in prior to the erection of the wall. 7. I order that the Respondents pay the Applicant's costs of the proceedings, on a party-party basis, as agreed or assessed. 8. All Exhibits are 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: 17 May 2017