Land and Environment Court New South Wales Medium Neutral Citation: Georges River Council v Stojanovski [2018] NSWLEC 125 Hearing dates: 21 August 2018 Date of orders: 21 August 2018 Decision date: 21 August 2018 Jurisdiction: Class 4 Before: Pepper J Decision: See orders at [31]. Catchwords: CIVIL ENFORCEMENT – Development without necessary consent – exercise of discretion to grant appropriate relief – demolition ordered. Legislation Cited: Environmental Planning and Assessment Act 1979, ss 4.2, 9.45, 9.46 Hurstville Local Environmental Plan 2012 Cases Cited: ACR Trading Pty Ltd v Fat-Sel Pty Ltd (1987) 11 NSWLR 67 Botany Bay City Council v Saab Corp Pty Ltd (2011) 82 NSWLR 171, 183 LGERA 228; [2011] NSWCA 308 Canterbury City Council v Mihalopoulos [2010] NSWLEC 248 F Hannan Pty Ltd v Electricity Commission of New South Wales (No 3) (1985) 66 LGRA 306 Fairfield City Council v Ly [2008] NSWLEC 322 Glaser v Poole [2010] NSWLEC 143 Liverpool Plains Shire Council v Vella (No 2) [2013] NSWLEC 75 Nader v Sutherland Shire Council [2008] NSWCA 265 Sutherland Shire Council v Nader (No 3) [2007] NSWLEC 469 Warringah Shire Council v Sedevcic (1987) 10 NSWLR 335 Woollahra Municipal Council v Sahade [2012] NSWLEC 76 Texts Cited: Category: Principal judgment Parties: Georges River Council (Applicant) Steven Stojanovski (First Respondent) Robert Stojanovski (Second Respondent) Representation: Counsel: Mr N Eastman (Applicant) N/A (First Respondent) N/A (Second Respondent) Solicitors: Lindsay Taylor Lawyers (Applicant) N/A (First Respondent) N/A (Second Respondent) File Number(s): 2018/99739 Publication restriction: N/A ex tempore Judgment The Council Seeks Orders for Demolition of Unlawful Works 1. By summons dated 29 March 2018, Georges River Council ("the Council") commenced proceedings pursuant to s 9.45 of the Environmental Planning and Assessment Act 1979 ("the EPAA") in relation to works carried out without development consent in breach of s 4.2 of the EPAA. 2. The application concerns land owned by the respondents, Mr Steven Stojanovski and Mr Robert Stojanovski ("the Stojanovskis"), at Part Lot 68 DP2997, 47 Jersey Avenue, Mortdale and Lot 68 DP 2997, 34 Milsop Place, Mortdale ("the land"). 3. The works carried out on the land by the first respondent, Mr Steven Stojanovski, include: 1. excavation of the land; 2. construction of a concrete slab; 3. construction of two sheds; and 4. use, by him, of the sheds for the purpose of a habitable dwelling. 1. Consent for such works and use is required pursuant to the Hurstville Local Environmental Plan 2012 ("the LEP"), but has not been obtained. 2. The Council seeks orders pursuant to s 9.46 of the EPAA to remedy and restrain the breach by ordering: 1. Mr Steven Stojanovski to be restrained from using the sheds as a habitable dwelling unless and until development consent has been obtained for that use; and 2. demolition of the unlawful structures being the sheds and the concrete slab. The Proceedings Proceeded Ex Parte 1. Despite being properly served, the Stojanovskis have taken no active steps in the proceedings. They were not present in Court today and the Court proceeded in their absence, having satisfied itself that they were aware of today's final hearing date. 2. Such active steps could have included an application foreshadowed in s 9.46(3) for an adjournment of the proceedings to enable consent to be obtained pursuant to Pt 4 of the Act, or an application for a building certificate pursuant to Div 6.7 of the EPAA. 3. As discussed further below, the absence of such steps weighs in the exercise of the Court's discretion under s 9.46(1) of the EPAA. Evidence Relied Upon by the Council 1. The Council relied upon the following affidavit evidence: 1. the affidavit of Ms Sofia Tramontini, affirmed 8 June 2018 (she is the Coordinator of Compliance at the Council. She inspected the land and described the works); 2. the affidavit of Mr Andrew Watt, affirmed 15 June 2018 (he is the Chief Financial Officer at Nearmap Australia Pty Ltd ("Nearmap"). Nearmap provided the aerial photography relied upon by the Council to prove the existence of the unlawful works which are the subject of the proceedings); 3. the affidavit of Mr Tony Ristevski, affirmed 11 July 2018 (he is the Team Leader of Development Assessment at the Council. He deposed to the fact that, amongst other things, that the works appeared to be carried out for the purposes of human habitation on the land and that no development consent was, as required, obtained in respect of the works); 4. the affidavit of Mr George Siambis, affirmed 7 June 2018 (he is a Senior Building Surveyor/Fire Safety Officer at the Council. He deposed to the fact that in his view the works were unlikely to be compliant with fire safety requirements and that there had been no opportunity to assess whether or not the works complied with the Building Code of Australia ("BCA")); 5. the affidavit of Ms Jennifer Ware, sworn 7 June 2018 (she is the General Counsel for the Council. She deposed that various stop work orders had been sent to, and had been received by, the Stojanovskis and annexed evidence to her affidavit that Mr Steven Stojanovski intended to inhabit the land); 6. the affidavit of Mr Michael Nestorovski, affirmed 3 May 2018 (he is a Development Compliance Officer at the Council. He deposed that notwithstanding that various stop work orders had been served on Mr Steven Stojanovski, the latter was determined to continue with the unlawful works because he needed somewhere to live); and 7. the affidavit of Mr Ryan Asplet, affirmed 17 May 2018 (he is another Development Compliance Officer with the Council. He provided a description of the property and the unlawful works, a chronology of the complaints received by the Council from neighbours concerning the works, the service of various stop work orders that were ignored, and his concerns that the works were not structurally sound, were not fire compliant, were not fit for human habitation – again, there was evidence that this was their ultimate intended purpose – and were not built in accordance with the BCA). The Legislative Scheme 1. Division 4.1 of the EPAA refers to the "threefold classification" of development. This includes s 4.2, in which a breach is established if development consent for works, and/or use, is required pursuant to an applicable environmental planning instrument, but has not been obtained. 2. Any person may bring an action to remedy or restrain a breach of the EPAA (ss 9.45 and 9.46). The breadth of discretion available to the Court to grant relief under the former s 124 of the EPAA (now s 9.46) has been the subject of judicial consideration in many decisions of this Court and the Court of Appeal. In F Hannan Pty Ltd v Electricity Commission of New South Wales (No 3) (1985) 66 LGRA 306 at 311, Street CJ said that the power given by s 9.46 (then s 124(1)) to make "such order as it thinks fit" enables the Court "to mould the manner of its intervention in such a way as will best meet the practicalities as well as the justice of the situation before it". The Chief Justice also said (at 313): It is the duty of that Court, in formulating "such order as it thinks fit", to have regard at all times to the pursuit of the objects of the Environmental Planning and Assessment Act as set out in s 5. This involves, in appropriate cases, the evaluation of matters extending beyond the mere determination of the rights and matters in dispute between the immediate parties. It involves due weight being given to the public interest and the interests of other affected persons in the overall context of the pursuit of the objects broadly set out in s 5. 1. Observations to similar effect have been found in the judgments of Kirby P in both Warringah Shire Council v Sedevcic (1987) 10 NSWLR 335 at 339-340 and ACR Trading Pty Ltd v Fat-Sel Pty Ltd (1987) 11 NSWLR 67 at 82 (endorsed by the Court of Appeal in Botany Bay City Council v Saab Corp Pty Ltd (2011) 82 NSWLR 171; 183 LGERA 228; [2011] NSWCA 308 at [149]). 2. In Sedevcic, Kirby P said (at 339–340): In exercising the discretion, it must be kept in mind that the restraint sought is not, in its nature, the enforcement of a private right, whether in equity or otherwise. It is the enforcement of a public duty imposed by or under an Act of Parliament, by which Parliament has expressed itself on the public interest which exists in the orderly development and use of the environment [case citation omitted]. Because s 123 of the Act permits any person ... to bring proceedings in the Court for an order to remedy or restrain a breach of the Act, there is indicated a legislative purpose of upholding, in the normal case, the integrated and co-ordinated nature of planning law. Unless this is done, equal justice may not be secured. Private advantage may be won by a particular individual which others cannot enjoy. Damage may be done to the environment which it is the purpose of the orderly enforcement of environmental law to avoid [case citation omitted]. 1. There are many instances of the Court ordering demolition as an appropriate remedy to a breach (Woollahra Municipal Council v Sahade [2012] NSWLEC 76; Canterbury City Council v Mihalopoulos [2010] NSWLEC 248; Glaser v Poole [2010] NSWLEC 143; Fairfield City Council v Ly [2008] NSWLEC 322 and Sutherland Shire Council v Nader (No 3) [2007] NSWLEC 469, upheld on appeal in Nader v Sutherland Shire Council [2008] NSWCA 265). 2. In the present case, private advantage has been attained in direct contravention of the planning laws (and the various orders). The Council submits that this was done deliberately and with acknowledgement of the need to take steps to rectify these works carried out in direct contravention of the planning law. I accept this submission. Unlawful Works Are Carried Out 1. As the Council's detailed affidavit evidence demonstrates, from September 2016 onwards, the Council received several complaints in relation to works being carried out on the land. After an initial inspection, the Council issued an order pursuant to the then applicable s 121B of the EPAA, dated 9 September 2016, to immediately stop all building works on the land. 2. An inspection subsequent to the stop work order was carried out by the Council on 27 April 2018. The Council officer observed works being carried out on the property. 3. Further stop work orders were issued on 28 April and 29 June 2017. 4. Between 2016 and early 2018, the Council made numerous attempts to contact and negotiate with the Stojanovskis to rectify the unlawful works, all to no avail. 5. Notwithstanding these attempts, building works continued resulting in further complaints received by the Council. 6. No development consent has ever been sought or obtained for the works. 7. The Council has genuine concerns about the structural adequacy, fire safety and BCA compliance in relation to the structures (this is canvassed in the reports prepared by Council officers in these proceedings which are contained in the affidavits of Mr Ritevski and by Mr Siambis). 8. Mr Siambis, in particular, has observed that the provisions of the BCA exist in order to ensure the safety of occupants of and neighbours to buildings and that in this case: Compliance of the Property with the Building Code of Australia 12 As the Property, specifically the sheds erected on the Property, do not have the benefit of a development consent there has been no assessment of whether they comply with the Building Code. 13 During my inspection of 31 May 2018, I observed the external appearance of the sheds however I did not enter the Property or see inside the sheds. I could not undertake a proper assessment of the Property's general compliance with the Building Code. 14 This is of significant concern as there has been no assessment of whether the sheds are structurally stable, are fire safe, and particularly whether they comply with the health and amenity of the Building Code, in circumstances where they may be being used as a dwelling. 1. No steps have been taken at all to regularise the unlawful works. Breach of the EPAA 1. The Court must be satisfied that there has been a breach of the EPAA. In this case, works have been carried out on the land. Section 4.2 requires consent to be obtained where it is required by the relevant planning instrument. 2. The subject land is zoned R2 Low Density Residential under the LEP. The Land Use Table of the LEP provides that only home occupations are permitted without consent. 3. Dwelling houses, attached dwellings and secondary dwellings are permitted only with consent in land zoned R2. 4. Because, as required, no development consent has been applied for or obtained, this amounts to a breach of s 4.2 of the EPAA. Exercise of the Court's Discretion to Grant Relief 1. It remains within the discretion of the Court as to whether to make orders to restrain further use and demolish the relevant structures which have been constructed without consent. The making of a demolition order is no small matter. 2. The critical factors in relation to the exercise of the Court's discretion in this case are that: 1. the potential environmental impacts of the unlawful works cannot properly be measured because no details are known about the construction, particularly internally. Mr Siambis and Mr Ritevski have expressed their concern about non-compliance from a fire safety and structure stability perspective. The Stojanovskis have taken no steps to demonstrate that those matters are not of concern. It cannot be known whether the risks are trivial or not. This must also be considered in the light of a prescriptive regulatory regime (explained in the evidence of Mr Ritevski and Mr Siambis) for the assessment of proposed building works in order to achieve the necessary standards of safety. Those requirements have clearly not been met. The impact is unknown. The structures may pose a serious safety risk; 2. there is a total absence of any participation by the Stojanovskis at any stage of the proceedings, including any steps to progress towards regularisation of the works by way of a building certificate application or consent to use; 3. the historic non-compliance by the Stojanovskis and continuation of work in the face of the Council's attempt to obtain compliance by the issuing of s 121B notices; 4. Mr Steven Stojanovski won a private advantage for himself by constructing the dwelling other than in compliance with the consent (Sedevcic at 339-340 and Liverpool Plains Shire Council v Vella (No 2) [2013] NSWLEC 75). These actions have undermined the legislative purposes of the EPAA. An order requiring the removal of the unauthorised works will remedy the breach of the EPAA by putting the Stojanovskis back in the position they would have been had they complied with the law (Sahade [at [71]–[72]). 5. in this case, it is the Council, and not the neighbours, who has made the application for enforcement of the, law and therefore, the Court is less likely to deny the relief: Sedevcic at 340; 6. no cogent steps have been taken by the Stojanovskis to demonstrate the hardship or costs of the relevant works being unable to be removed readily and without great cost or inconvenience: Sedevcic at 340; and 7. although there was some evidence of possible hardship insofar as suggesting that the unlawful works were carried out to provide habitation for Mr Steven Stojanovski following the break–up of his marriage in 2009, and moreover, that although he was aware that consent was needed for the works such consent could not be obtained from his brother (who had refused to cooperate with him), limited weight is placed on the evidence given its vagueness, its age and its untested nature. Orders 1. Therefore, for the reasons given above, the Court makes orders 1, 3, 4 and 5 as sought by the Council in the summons, namely: 1. a declaration that the first respondent has carried out or permitted the carrying out of development on Part Lot 68 DP2997, 47 Jersey Avenue, Mortdale and Lot 68 DP 2997, 34 Milsop Place, Mortdale ("the property") being the excavation of the Property, construction of a concrete slab, and construction of two sheds ("sheds") being used for the purpose of a habitable dwelling, on land zoned R2 - Low Density Residential, without the requisite development consent as required by Hurstville Local Environmental Plan 2012, such development being contrary to s 4.2 of the Environmental Planning and Assessment Act 1979 ("EPAA"); 2. an order, pursuant to s 9.46 of the EPAA, that the first respondent, by himself, his servants or agents, be restrained from using the sheds on the property for the purpose of a habitable dwelling unless and until development consent has been obtained for that use; 3. an order, pursuant to s 9.46 of the EPAA, that within 28 days of the making of this order, the first respondent must demolish all unlawfully erected structures, including the sheds and the concrete slab on the property; 4. that the first respondent pay the applicant's costs of these proceedings; and 5. all exhibits in this matter are to be returned to the parties. ********** Amendments 14 October 2019 - Typographical errors fixed at paragraphs [12] and [30]. 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 October 2019