Land and Environment Court New South Wales Medium Neutral Citation: Sutherland Shire Council v Perdikaris [2019] NSWLEC 149 Hearing dates: 8 October 2019 Date of orders: 16 October 2019 Decision date: 16 October 2019 Jurisdiction: Class 4 Before: Pepper J Decision: See orders at [55]. Catchwords: CIVIL ENFORCEMENT: construction of a large garage on a concrete slab in a suburban neighbourhood absent necessary consent – whether garage and slab should be demolished – consideration of discretionary factors to grant relief sought – declaratory relief and demolition ordered. Legislation Cited: Environmental Planning and Assessment Act 1979, ss 4.2, 9.6 Land and Environment Court Rules 2007, r 7.7 State Environmental Planning Policy (Exempt and Complying Development Codes) 2008, cl 2.20 Sutherland Shire Local Environmental Plan 2015, Sch 2, Land Use Table – Zone E4 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; [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 Georges River Council v Stojanovski [2018] NSWLEC 125 Glaser v Poole [2010] NSWLEC 143 Latoudis v Casey [1990] HCA 59; (1990) 170 CLR 534 Liverpool Plains Shire Council v Vella (No 2) [2013] NSWLEC 75 Nader v Sutherland Shire Council [2008] NSWCA 265 Northern Territory of Australia v Sangare [2019] HCA 25 Penrith Waste Services Pty Ltd v Penrith City Council (1998) 101 LGERA 98 Semayne's Case 77 ER 194; All ER Rep 62 Sutherland Shire Council v Nader (No 3) [2007] NSWLEC 469 Tweed Shire Council v Taylor [2019] NSWLEC 45 Warringah Shire Council v Sedevcic (1987) 10 NSWLR 335 Woollahra Municipal Council v Sahade [2012] NSWLEC 76 Category: Principal judgment Parties: Sutherland Shire Council (Applicant) Vasilios Perdikaris (First Respondent) Irene Perdikaris (Second Respondent) Representation: Counsel: R O'Gorman-Hughes (Applicant) V Perdikaris (First and Second Respondents) (Self-represented) Solicitors: Pikes & Verekers Lawyers (Applicant) File Number(s): 2019/56683 Judgment Mr Perdikaris Builds a Very Large Shed Without Approval 1. The English judge and jurist Sir Edward Coke famously declared in 1604 "that the house of every one is to him as his castle and fortress" (Semayne's Case 77 ER 194; All ER Rep 62). A more modern reformulation of this aphorism is to the effect that a person's home is their castle. But be that as it may, in 2019 the Environmental Planning and Assessment Act 1979 ("EPAA") places restraints on the number of towers, keeps, and barbicans that are permitted to comprise that castle. And once complete, if new stables, turrets, or even a moat is sought to be added to the existing structure, these will generally require some form of planning approval from an appropriate consent authority. So it was with the new very large garage (or shed) constructed by the respondents at their residential premises at Lot 27 DP 811280 ("the premises"). 2. The premises are zoned E4 Environmental Living pursuant to the Sutherland Shire Local Environmental Plan 2015 ("the LEP"). They are located on a corner of a typical suburban cul-de-sac in the suburb of Menai. The premises comprise a two storey brick dwelling house with a hipped tiled roof and an attached double garage. The premises are located within a residential area characterised by one and two storey detached houses on large landscaped allotments. The dominant architectural style of the surrounding area is that of large and open landscaped front setbacks, brick construction, and pitched tiled roofs. 3. Adjoining the premises are, to the east at the rear, a two storey brick dwelling with a hipped tile roof and an attached double garage at the front; and on the northern side, a one storey brick dwelling with a pitched tiled roof and an attached double garage at the front. 4. From correspondence attached to an affidavit of Mr James Arnold sworn 22 August 2019, a town planner engaged by the applicant, Sutherland Shire Council ("the Council"), it appears that sometime around 26 December 2017, the respondents erected a sizable garage on the premises. The garage sits on top of a concrete slab that was purpose built for the garage (together, "the development"). 5. The dimensions of the garage were in dispute, but even on Mr Perdikaris's evidence, the height of the garage is at least 4.383 m when measured from the soil level (it was his oral evidence that the slab was approximately 300 mm and it was not in dispute that the height of the garage as measured from the concrete slab to the ridge is 4.083 m. The Council's estimated measurement of the slab was 400-500 mm). The depth of the garage is 12 m and its width is 6 m. The area is 72 m2. The front setback is 1.7 m, while the side setback on the northern side is 240-550 mm and the rear setback to the east is 100-450 mm. 6. Historical aerial photographs of the premises indicate that previously a small garden shed was located in the rear north-eastern corner of the premises. The shed did not appear to be more than a few metres long. It was not large enough to fit a vehicle in it and there was no driveway access to the shed. 7. On 9 August 2017, the first respondent, Mr Vasilios (or "Bill") Perdarkis, lodged a driveway application for a single dwelling for the premises. The site diagram and plan contained in section 4 of that application did not contain any reference to the construction of the impugned garage. 8. A complaint was made to the Council by a neighbour shortly after the garage's construction in late December 2017. Consequently, on 3 January 2018 Council officers investigated and attended the outside of the premises (they were not, and never have been, permitted to enter the premises). From the inspection, the officers determined that no development consent had been obtained by the respondents to erect the garage and that approval was required. Demolition was recommended. 9. On 24 April 2018, a building information certificate application ("BC") was lodged by the respondents with the Council in relation to the garage. 10. On 26 July 2018 the Council refused the BC application. That decision was not appealed by the respondents. 11. Between 4 January 2017 and when the summons was filed on 20 February 2019, various attempts were made by the Council to engage with the respondents to have the garage demolished prior to commencing proceedings. To the extent that there was delay by the Council in filing the summons, correspondence relied upon by the Council indicates that this was in order to accommodate illness on the part of Mr Perdikaris and various members of his family, and to attempt to continue to resolve the matter absent the need for litigation. 12. It is fair to say that on occasion the interactions between the Council and Mr Perdikaris were fractious. Due to his abusive language when dealing with Council officers, the Council refused to meet with Mr Perdikaris in person from early 2019 onwards, and it requested that all further communication be in writing. 13. Settlement discussions continued after the filing of the summons, but, as is evident from this judgment, did not resolve the matter. The Hearing of the Matter 1. By way of an amended summons filed in Court on 8 October 2019, the Council seeks the following relief in Class 4 civil enforcement proceedings: 1. A declaration that the freestanding garage at 1 Penmon Close, Menai was erected without development consent first having been obtained in circumstances where such consent was necessary, in breach of section 4.2 Environmental Planning and Assessment Act 1979 (EPA Act). 2. An order that the First Respondent demolish the freestanding garage erected at 1 Penmon Close, Menai within 28 days of the date of this order. 3. An order that the Respondents pay the Applicant's costs of these proceedings. 1. The amended summons differs from the original summons insofar as the original summons also sought relief in respect of a carport and as against the second respondent, Mrs Irene Perdikaris, the wife of Mr Perdikaris. The only order sought against Mrs Perdikaris is in relation to costs if the Council is successful in the proceedings. 2. At the final hearing, only Mr Perdikaris appeared. He initially told the Court that his wife was undergoing medical tests but that he was not instructed to appear for her. Subsequently, however, he stated that he was appearing for his wife. This caused the Court to insist on compliance with r 7.7 of the Land and Environment Court Rules 2007 ("the LEC Rules") if Mr Perdikaris was to appear as Mrs Perdikaris's agent. 3. Compliance with r 7.7 of the LEC Rules was effected after a brief adjournment, which included oral (by telephone) and written evidence from Mrs Perdikaris. The Court therefore granted Mr Perdikaris leave to appear as agent for his wife. This was not opposed by the Council. 4. Mr Perdikaris initially denied receiving the affidavits sought to be relied upon by the Council, the documents comprising its tender bundle, the Council's submissions, or the draft amended summons. 5. However, two affidavits of service of Mr Justin Veitch sworn 4 March 2019, together with an email from the Council's solicitors to Mr Perdikaris dated 4 October 2018, and a letter to the respondents from the Council's solicitors dated 23 August 2019 (with enclosures) sent by Express Post, demonstrated that all of these documents had been served on Mr Perdikaris, and served on him in a timely manner. Accordingly, the Court proceeded to hear the matter. Extra copies of these documents were provided to Mr Perdikaris at the hearing. 6. The Council relied upon two affidavits of Mr Arnold. In addition to the affidavit referred to above, Mr Arnold also swore an earlier affidavit on 20 February 2019. The Council also tendered a bundle of documents comprising relevant extracts from the Sutherland Shire Development Control Plan 2015 ("the DCP"), a title search of the premises showing ownership by the respondents, and LEP zoning maps both as at, and after, 21 December 2019. The Council separately tendered the BC application for the garage. 7. The respondents relied upon an affidavit of Mr Perdikaris sworn on 17 July 2019. 8. Because of the admissions contained in Mr Perdikaris's affidavit, the Council also relied (by way of tender) on part of that affidavit. In particular: 6 There was a garage situated on my property, but it was too small for my needs. This garage was situated at the rear corner of the property and was there when I purchased the house. 7 This small garage was not suitable for my needs so I enquired with various companies about building a bigger one. 8 I obtained quotes from various companies and went with the one from Best Sheds. 9 During my enquiries I told various companies that I did not have council approval and I was told that many people build their sheds without Council approval and that it really only mattered if someone complained. 10 I saw where the small shed was situated and how far from the fence line it was. This shed was about 200 millimetres from the fence line separating my property No. 1 Penmon Close from my next door neighbour at no. 3 11 I also saw that the fence was about 200 millimetres from the fence line separating my property No. 1 Penmon Close from the next door neighbour at the rear of my property, no 12 Penmon Close. 12 I assumed that because the small garage was there when I purchased the house and it was on the plans when I purchased the property, that it would be permissible to build a larger garage using these distances. A copy of an areal [sic] photograph is herewith attached and marked as Annexure "A". 13 When the new garage was built I had it built 400 millimetres from the fence lines, and I assumed that would be okay. 14 When I enquired of my neighbour Mark, who is a licensed concreter, if he could build a driveway leading up to the proposed garage. He told me that I needed council approval to build the driveway. 15 I left it up to Mark to arrange for the plans which he did, and I went and saw the council. I paid $335.00 for the approval. A copy of this receipt is herewith attached and marked as Annexure "B". 16 After the driveway was built, I then contacted Best Sheds for them to build my proposed shed which was 12 metres long by 6 metres wide by 4.083 meters high. 17 The shed was built by a Best Shed's contractor and it was finished in two days completed just before Christmas 2017. 1. Both Mr Perdikaris and Mr Arnold were cross-examined on the contents of their affidavits. 2. After judgment was reserved in this matter Mr Perdikaris engaged in an ex parte communication with the Court seeking to bring additional factual matters that he wished to rely upon to the Court's attention, including further evidence of his expenses to date. The Court responded by stating that it could not take this information into account (which would have been relevant to the exercise of its discretion to grant the relief sought by the Council). It has not done so. Issues for Determination 1. The amended summons gives rise to the following issues for determination: 1. first, and irrespective of any admissions made by Mr Perdikaris in his affidavit that he knew that he needed development consent for the development, whether or not development consent was, as a matter of law, required for the development; 2. second, if so, whether or not consent had been obtained for the development; and 3. third, if not, whether in the exercise of the Court's discretion the relief sought by the Council ought to be ordered, in particular the demolition of the garage (including the concrete slab). Development Consent Was Required for the Development 1. As at the date of the development, the LEP provided the following in respect of Zone E4 Environmental Living land: 1 Objectives of zone • To provide for low-impact residential development in areas with special ecological, scientific or aesthetic values. • To ensure that residential development does not have an adverse effect on those values. • To allow for development that preserves and enhances the natural landscape setting of the locality. • To protect and restore trees, bushland and scenic values particularly along ridgelines and in other areas of high visual significance. • To ensure the character of the locality is not diminished by the cumulative impacts of development. • To minimise the risk to life, property and the environment by restricting the type or level and intensity of development on land that is subject to natural or man-made hazards. • To allow the subdivision of land only if the size of the resulting lots makes them capable of development that retains or restores natural features while allowing a sufficient area for development. • To share views between new and existing development and also from public space. 2 Permitted without consent Home occupations 3 Permitted with consent Bed and breakfast accommodation; Boat sheds; Dwelling houses; Environmental protection works; Flood mitigation works; Health consulting rooms; Home businesses; Home industries; Places of public worship; Recreation areas; Roads; Secondary dwellings 4 Prohibited Industries; Service stations; Warehouse or distribution centres; Any other development not specified in item 2 or 3 1. Accordingly, under the LEP the development was either prohibited or permitted with consent. On any view, the development does not constitute "home occupation" which does not require consent. The garage is used to store Mr Perdikaris's cars, pallet racking, and hoist. 2. An identical conclusion is arrived at under the version of the LEP currently in force. 3. The development is not exempt development under either Sch 2 of the LEP dealing with exempt development, or the State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 ("the SEPP"). While carports are exempt and complying development for the purpose of the SEPP, the development is not in conformity with the relevant development standard in cl 2.20 because of its enclosed nature, its dimensions, and the fact that there was already a garage and carport on the premises: Subdivision 10 Carports … 2.20 Development standards (1) The standards specified for that development are that the development must: (a) not result in a building classified under the Building Code of Australia as class 7a, and (b) not have a floor area more than: (i) for a lot larger than 300m2 in a rural zone or Zone R5—50m2, or (ii) for a lot larger than 300m2 in a zone other than a rural zone or Zone R5—25m2, or (iii) for a lot 300m2 or less in any zone—20m2, and (c) be not higher than 3m above ground level (existing) or, if attached to an existing single storey dwelling, be not higher than the roof gutter line, and (d) be located at least 1m behind the building line of any road frontage, and (e) be located at a distance from each lot boundary of at least: (i) for development carried out in Zone RU1, RU2, RU3, RU4, RU6 or R5—5m, or (ii) for development carried out in any other zone—900mm, and (f) have 2 or more sides open and not less than one-third of its perimeter open, and (g) to the extent it is comprised of metal components—be constructed of low reflective, factory pre-coloured materials, and (h) not involve the construction of a new driveway or gutter crossing unless the consent of the relevant road authority for each opening of a public road required for the development has been obtained under the Roads Act 1993, and (i) be constructed or installed so that any roofwater is disposed of into the existing stormwater drainage system, and (j) if it is connected to a fascia—be connected in accordance with a professional engineer's specifications, and (k) (Repealed) (l) if it is located on bush fire prone land and is less than 5m from a dwelling—be constructed of non-combustible material, and (m) if it is constructed or installed in a heritage conservation area or a draft heritage conservation area—be located in the rear yard, and (n) be located so that it does not reduce vehicular access to, or parking or loading or unloading on, or from, the lot. (2) The roof of the development must be located at least 500mm from each lot boundary. (3) There must not be more than 1 development: (a) per lot if there is a dwelling on the lot, or (b) per lot or per each separate occupation of premises on the lot, whichever is the greater, in any other case. 1. As at the date of the hearing, the development was likewise not exempt development under either the LEP or the SEPP. 2. In relation to any possible claim that the development was permitted pursuant to an existing use right occasioned by the shed previously located on the premises, the shed was not used as a garage, but as a shed. For example, it was too small to fit a car and was not accessed by a driveway. Mr Perdikaris has not discharged his onus of proving the benefit of an existing use right on the evidence before the Court (Penrith Waste Services Pty Ltd v Penrith City Council (1998) 101 LGERA 98 at 105-106). 3. It follows that the development required consent. No Development Consent Was Obtained 1. It is uncontentious that Mr Perdikaris did not obtain development consent for the development. Mr Perdikaris admitted this in his affidavit. 2. The BC application was refused by the Council and that determination was not appealed by him. Power to Grant the Relief Sought 1. Section 4.2 of the EPAA relevantly provides that if an environmental planning instrument provides that specified development may not be carried out except with development consent, a person must not carry out the development absent such consent: 4.2 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. (2) For the purposes of subsection (1), development consent may be obtained: (a) by the making of a determination by a consent authority to grant development consent, or (b) in the case of complying development, by the issue of a complying development certificate. … (5) Complying development An environmental planning instrument may provide that development, or a class of development, that can be addressed by specified predetermined development standards is complying development. 1. It follows for the reasons above that Mr Perdikaris has breached s 4.2(1) of the EPAA. 2. The Court has the power to make such orders as it considers fit to remedy a breach of the EPAA. Section 9.46 of the EPAA provides as follows: 9.46 Orders of the Court (1) Where the Court is satisfied that a breach of this Act has been committed or that a breach of this Act will, unless restrained by order of the Court, be committed, it may make such order as it thinks fit to remedy or restrain the breach. (2) Without limiting the powers of the Court under subsection (1), an order made under that subsection may: (a) where the breach of this Act comprises a use of any building, work or land—restrain that use, (b) where the breach of this Act comprises the erection of a building or the carrying out of a work—require the demolition or removal of that building or work, or (c) where the breach of this Act has the effect of altering the condition or state of any building, work or land—require the reinstatement, so far as is practicable, of that building, work or land to the condition or state the building, work or land was in immediately before the breach was committed. (3) Where a breach of this Act would not have been committed but for the failure to obtain a consent under Part 4, the Court, upon application being made by the defendant, may: (a) adjourn the proceedings to enable a development application to be made under Part 4 to obtain that consent, and (b) in its discretion, by interlocutory order, restrain the continuance of the commission of the breach while the proceedings are adjourned. 1. 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 are 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; [2011] NSWCA 308 at [149]). 2. In Sedevcic, Kirby P said (at 339–340, citations omitted): 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. 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; Sutherland Shire Council v Nader (No 3) [2007] NSWLEC 469, upheld on appeal in Nader v Sutherland Shire Council [2008] NSWCA 265; and Georges River Council v Stojanovski [2018] NSWLEC 125). 2. In Tweed Shire Council v Taylor [2019] NSWLEC 45, Preston J ordered demolition and removal of certain buildings that had been unlawfully built, adopting the arguments put by the council (at [20]-[51]). Relevantly, his Honour was particularly persuaded by the fact that the building was not shown to comply with the relevant building regulations (at [71]-[72]) and that it was unlikely that a building information certificate would be issued to allow the building to remain as constructed by the respondent (at [72]). In addition, the building could not be used lawfully for the purpose for which it was constructed, a purpose that was prohibited in the applicable zone (at [74]). Likewise, it was unlikely that the building could be used for a purpose permissible with development consent in that zone due to the risk of bush fire. Absent upgrades, development consent was unlikely to be granted (at [76] and [82]). In addition, there was no evidence that the building was exempt or complying development (at [77]). Finally, the respondent's concerns about the financial loss that he was likely to incur upon an order for demolition were not justified. In particular, not only were the costs of construction sunk costs that could not be recouped (at [81]) but if the building were demolished and removed, there was the potential for the building materials to be reused elsewhere (at [83]). The Garage and Concrete Slab Must be Demolished 1. In the present case, the Council relied on the following factors to submit that demolition was the only appropriate order to make with respect to the development: 1. the opinion of Mr Arnold that the garage formed a dominant element in the streetscape and adversely impacted the amenity of the area. The garage is a highly visible structure. It has been the subject of a number of complaints; 2. that there were significant non-compliances with the planning controls under the LEP and DCP, assuming that the purpose for which the garage has been erected is for a dwelling home. According to the unchallenged evidence of Mr Arnold, the landscaped area of the property is 28%, whereas the minimum is 40%; the front setback is 1.7 m, whereas the minimum required is 3 m; the side setback is 0.24-0.55 m, whereas the minimum required is 1.5 m; and the rear setback is 0.1-0.45 m, whereas the minimum required is 1 m; 3. having regard to the number and extent of the non-compliances with planning controls, the Council would not have granted consent had it been sought. It was therefore not appropriate to suspend the operation of any orders made by the Court to enable Mr Perdikaris to make further applications to regularise the unauthorised works. The Council noted that the application for the building information certificate had been refused; 4. while the garage might be capable of being approved, this was unlikely under the DCP (which limits the parking to two spaces per dwelling) given that the premises already had a double garage and a double carport. Even if approved, such approval would be much smaller than that constructed and to comply with set-back controls it would need to be relocated away from the side boundaries. Thus a significant redesign and rebuild would be required rather than a modification of the existing structure; and 5. Mr Perdikaris knew that development consent was necessary. He erected the garage anyway. 1. Mr Perdikaris submitted that demolition should not be ordered and that he be given the opportunity to make the necessary adjustments. Specifically, he: 1. could move the garage back from the fence lines; 2. could reduce the length of the garage by 2 m. Anything more would impede his ability to store his race cars in the garage (he is a car enthusiast and a professional drag racer); 3. could reduce the height of the garage by 0.083 m. He required the height to be 4 m because the height of the hoist located in the garage is 3.5 m; 4. was willing to undertake the landscaping required; 5. was of the opinion that the garage afforded additional privacy to one neighbour with a pool and in respect of the other neighbour, the garage was located next to a driveway and garage, thereby having little impact on amenity; 6. stated that one of the neighbours consented to the garage, whereas the other neighbour was "out to get my family" and a "racist". There was no evidence to support these claims; 7. had spent a considerable sum of money to date on the construction of the garage and on a planner and solicitor to make the garage compliant (approximately $44,000 according to his affidavit). While no documentation was provided to verify the estimated expenditure, I nevertheless accept that the figure would have been considerable given the size of the concrete slab and the garage; and 8. was currently suffering from various health and financial issues, although no documentary evidence of either was present to the Court to demonstrate this claim. 1. I find the submissions made by the Council compelling. I adopt and apply them. 2. Moreover, having regard to the legal principles governing the exercise of my discretion set out in Stojanovski, and as further elucidated in Taylor, I am of the opinion that the garage and concrete slab ought to be demolished. I am particularly persuaded by the fact that: 1. Mr Perdikaris knew that he needed development consent but proceeded to undertake the development without obtaining it. He is the author of his own misfortune; 2. the development cannot be rendered compliant by appropriate modification given its manifest breaches of the planning controls, irrespective of the opinion of Mr Perdikaris and any attempts between the parties to resolve the dispute. Given the location of the concrete slab, achieving compliance with the setbacks will be difficult. While Mr Perdikaris is willing to reduce the height of the garage by 0.083 m, this will not make the height of the garage from the soil level compliant because of the height of the slab; 3. given its size, scale, and location, and having regard to the existing planning controls governing garages, the development is unlikely to ever obtain approval from the Council; 4. although Mr Perdikaris has spent a considerable sum of money on the development (Sedevcic at 340), these are sunk costs, which may be offset by the resale of the garage once taken down. Having said this, it must be acknowledged that further expense is likely to be incurred by Mr Perdikaris in removing the garage and the concrete slab (Sedevcic at 340); and 5. Mr Perdikaris has won a private advantage for himself by constructing the garage without approval (Sedevcic at 339-340 and Liverpool Plains Shire Council v Vella (No 2) [2013] NSWLEC 75 at [39]). These actions have undermined the legislative purpose of the EPAA. An order requiring demolition of the unauthorised works will remedy the breach of the EPAA by putting Mr Perdikaris back in the position he would have been in had he complied with the law (Sahade at [71]-[72]). 1. For all these reasons and having regard to all the circumstances of the case, the breach of the EPAA committed by Mr Perdikaris should be remedied by ordering the demolition and removal of the unlawful development, namely, the concrete slab and the garage. Mr Perdikaris Must Pay the Council's Costs of the Proceedings 1. The Council sought an order that both Mr and Mrs Perdikaris pay its costs of the proceedings. 2. It is well established that the power to award costs is a discretionary power, but one that must be exercised judicially by reference to the considerations relevant to its exercise and having regard to the facts giving rise to the litigation (Northern Territory of Australia v Sangare [2019] HCA 25 at [24]). 3. In respect of Mrs Perdikaris, given that she played no active role in the proceedings, that there was no evidence that she carried out the unlawful development the subject of the civil enforcement claim, and that no relief other than costs was sought against her by the Council, I do not think that it is an appropriate exercise of the Court's discretion to order that she pay the Council's costs. 4. In respect of Mr Perdikaris, however, such an order is apposite, and should be made given that the Council has been wholly successful in the proceedings and has not engaged in any disentitling conduct. 5. Mr Perdikaris submitted that by reason of his ongoing financial difficulties, no such order should be made. 6. This submission must be rejected. First, no evidence was proffered to the Court to support Mr Perdikaris's assertion of impecuniosity. Second, because costs are compensatory and not punitive, the financial means of a party to satisfy a cost order is irrelevant (Latoudis v Casey [1990] HCA 59; (1990) 170 CLR 534 at 557, 566 and 568 and Sangare at [24]-[36]). 7. As the High Court recently stated in Sangare (at [32] and [35], footnotes omitted): 32 Whether a party is rich or poor has, generally speaking, no relevant connection with the litigation. It may be said, by way of qualification to that general proposition, that a party's financial position may be relevant to the extent that it may inform the structure of a costs order. For example, impecuniosity may justify providing for the payment of costs over time in order to avoid inflicting unnecessary hardship while at the same time improving the likelihood of compliance with the order. That said, any such qualification was not invoked in the present case. … 35 In any event, as a matter of authority, the courts have consistently rejected the suggestion that a costs order should not be made against an impecunious party because it would be futile to do so. The circumstance that a person may not presently, or even foreseeably, be able to meet an order for costs has not been regarded as a reason to regard the creation of the debt as an exercise in futility. The very existence of the debt created by the order is a benefit to a creditor. The successful party is better off with the benefit of the order than without it. It simply cannot be assumed that the respondent will never have the means to pay the debt in whole or in part or that it might not otherwise be turned to valuable account by the appellant. Orders 1. In conformity with the reasons given above, the orders of the Court are as follows: 1. the Court declares that in breach of s 4.2 of the EPAA, the freestanding garage and the concrete slab upon which it stands at 1 Penmon Close, Menai, was erected without development consent having been obtained in circumstances where such consent was necessary; 2. within 28 days of the date of this order, the first respondent is to demolish the freestanding garage and the concrete slab upon which it stands at 1 Penmon Close, Menai; 3. the first respondent is to pay the applicant's costs of the proceedings; and 4. the exhibits are to 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: 16 October 2019