Land and Environment Court New South Wales Medium Neutral Citation: Umansky v Sutherland Shire Council [2019] NSWLEC 1569 Hearing dates: Conciliation conference held on 11 November 2019 Date of orders: 21 November 2019 Decision date: 21 November 2019 Jurisdiction: Class 1 Before: Morris AC Decision: The Court orders that: (1) Within 120 days from the date of these Court Orders, the Applicant is to: (a) Remove the garage roller door and associated wooden frame installed on the carport at the subject premises and construct a 1.8m high metal fence and gate not closer than 500mm from rear of the carport structure, extending from the western boundary fence to the dwelling, or (b) The carport which has been enclosed, is to be upgraded to fully comply with Part 3.7.2 Fire separation of external walls of Volume 2 of the Building Code of Australia 2019. Certification from an Accredited Certifier under the Building Professionals Board Accreditation Scheme is to be provided to Council certifying that the completed works satisfy these provisions. All works required by this Order are to be wholly within the boundaries of 3 Portland Close, Illawong. This shall be confirmed by a certificate from a registered surveyor; and (c) Implement measures to ensure that surface water from the rear paved area north of the carport is not directed onto the adjoining property. This is to be achieved by re-grading the paved area to direct surface water into the existing stormwater system located at the north western corner of the dwelling. (d) Pursuant to sections 34(3)(a) and (b) of the Land and Environment Court Act 1979 (NSW) there is a requirement for the Court to dispose of the proceedings in accordance with the parties' decision, if the parties' decision is a decision that the Court could have made in the proper exercise of its functions. (e) The Parties agree that the Court has power to make these Orders pursuant to s 8.18(4) of the Environmental Planning & Assessment Act 1979. Catchwords: ORDERS – enclosure of carport, stormwater drainage – conciliation conference – agreement between the parties – orders Legislation Cited: Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Local Government Act 1993 State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 Texts Cited: National Construction Code – Building Code of Australia Category: Principal judgment Parties: Albert Umansky (Applicant) Sutherland Shire Council (Respondent) Representation: Counsel: A Umansky (Litigant in person) (Applicant) J Amy (Solicitor) (Respondent) Solicitors: Sutherland Shire Council (Respondent) File Number(s): 2019/300345 Publication restriction: No Judgment 1. COMMISSIONER: This is an appeal pursuant to s 8.18 of the Environmental Planning and Assessment Act 1979 (EPA Act) by the applicant against a Development Control Order (the Order) issued by Sutherland Shire Council (Council). The application seeks revocation of the Orders made by Council on 29 August 2019 (Order No 11 Compliance), an order compensation against the Respondent under s 181(1) of the Local Government Act 1993. In the alternative, the applicant seeks that the Court is to make any other order with respect to the Council Orders as the Court thinks fit. 2. The Order that is the subject of the appeal was issued by Council on 29 August 2019. It requires the applicant to: "1) Remove the garage roller door installed on the carport at the subject premises. 2) Implement measures to ensure that surface water from the driveway and hardstand area is not directed onto adjoining properties." 1. The reasons for the Order are: 1. Development has been carried out without development consent when prior development consent is required. 2. The inclusion of the garage roller door to the carport at the subject premises cannot be considered to be Exempt Development as defined in the State Environmental Planning Policy (Exempt and Complying Development Codes) 2008. 3. A search of Council's records revealed Building file BA884526 pertaining to 3 Portland Close, Illawong which indicates approved plans for the carport on site. 4. The carport at the subject premises is deemed non-compliant with the National Construction Code – Building Code of Australia (NCC BCA 2019 Volume 2 – Fire Separation under 3.7.2.5(a)) as a result of the inclusion of the garage roller door. 5. The existing driveway and hardstand area fails to satisfy the development standards contained within the State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 Subdivision 14 – Driveways and hard stand spaces section 2.28(a). "Development standards – The standards specified for that development are that the development must: (a) be constructed or installed so that any surface water or runoff is disposed of by a drainage system that is connected to the existing stormwater drainage system." The site and its context 1. The site is known as No. 3 Portland Close, Illawong and contains a single storey dwelling house with an attached single car garage. A swimming pool is located in the rear yard and the approved carport is located immediately adjacent to the garage on its western side and adjacent to the common boundary with No. 5 Portland Close. Background to the proceedings 1. The Council, following the issue of Notice of Proposed Order, served the Demolish Works Order on 19 June 2019. A period of 60 days was provided for compliance with the Order. 2. There is no issue in the proceedings that the Order has not been properly made or served. 3. The Council issued a building approval 1988. Its records include a number of inspections including a pier inspection carried out on 25 November 1988, a slab inspection carried out on 29 November 1988 and a frame inspection carried out on 16 February 1989. According to the Council officers present at the conciliation conference, that frame inspection would be similar to that of a final inspection. The relevant legislation 1. At s 9.34(1) of the EPA Act, it states that: (1) The development control orders that may be given under this Act are as follows— (a) general orders in accordance with the table to Part 1 of Schedule 5, (b) fire safety orders in accordance with the table to Part 2 of Schedule 5, (c) brothel closure orders in accordance with the table to Part 3 of Schedule 5. 1. The order in these proceedings is a 'general order' under Part 1 of Schedule 5. The specific general order is a Compliance Order No 11. The relevant circumstance for the order is "To do whatever is necessary so that any building or part of a building that has been unlawfully erected complies with relevant development standards". 2. The EPA Act at s 1.4 defines a "building" as follows: building includes part of a building, and also includes any structure or part of a structure (including any temporary structure or part of a temporary structure), but does not include a manufactured home, moveable dwelling or associated structure within the meaning of the Local Government Act 1993. The site view 1. A site view was conducted at the commencement of the conference. Objections to the works that had been carried out on the site and are the subject of the Order were heard on behalf of the owner of the adjoining site No. 5 Portland Close. The objections are that the original building approval had lapsed as the carport was not constructed in the late 1990s; part of the roller shutter encroaches the boundary of the property; damage to the adjoining property is occurring during rain events which lead to the washout of garden beds and has caused a tree to fall down damaging the neighbour's car. 2. The Court was taken onto the neighbouring property to view the areas of concern. Conciliation 1. The parties have agreed on a manner in which the Order can be modified to address the terms of the original Order. 2. The effect of the proposal is to ensure that the provisions of the National Construction Code – Building Code of Australia (NCC BCA 2019, Volume 2 – Fire Separation under 3.7.2.5(a)) are met. Two options are available and the applicant requested that each be the subject of the Order to allow him to obtain advice and quotes from builders. The first option is to remove the timber elements of the structure and construct a 1.8m high metal fence and gate not closer than 500mm from the rear of the carport structure, extending from the western boundary fence to the dwelling. 3. The second is to upgrade the carport so as to fully comply with Part 3.7.2 Fire separation of external walls of Volume 2 of the Building Code of Australia. If that option is chosen, the Council would require certification of the works to ensure compliance. In addition, to ensure the works were wholly contained within the site, a survey certificate would also be required. 4. In regard to surface water, it was agreed that it is necessary to regrade the paved area between the pool and carport and direct the paving to the existing stormwater system in the north western corner of the building. The parties are satisfied that this will address the concentration of water that flows to the adjoining site. The roof of the carport is connected to the underground system by a downpipe. Conclusion 1. The Court's powers in relation to Orders is contained at s 8.18(4) of the EPA Act as follows: On hearing an appeal, the Court may: (a) revoke the development control order, or (b) modify the development control order, or (c) substitute for the development control order any other order that the relevant enforcement authority who gave the order could have given, or (d) find that the development control order is sufficiently complied with, or (e) make such order with respect to compliance with the development control order as the Court thinks fit, or (f) make such other order with respect to the development control order as the Court thinks fit. 1. The parties agree that if the works to be the subject of the modified Order are carried out the carport and adjoining paved area will comply with the relevant sections of the National Construction Code – Building Code of Australia (NCC BCA 2019, Volume 2 – Fire Separation under 3.7.2.5(a)). 2. I am satisfied that the modified Order agreed by the parties is one that can be legally made pursuant to the provisions of s 8.18(4) of the EPA Act and that the completion of these works will address the concerns of the neighbour, noting that that property has been excavated without any retaining wall being constructed along the common boundary. Costs 1. The applicant seeks an Order for compensation. The terms of s 81 of the Local Government Act 1993 are: 81 Awarding of compensation concerning orders (1) The Land and Environment Court, on the hearing of an appeal or otherwise, has a discretion to award compensation to a person on whom an order is served for any expense incurred by the person as a consequence of the order, including the cost of any investigative work or reinstatement carried out by the person as a consequence of the order, but only if the person satisfies the Court that the giving of the order was unsubstantiated or the terms of the order were unreasonable. (2) A claim for compensation may not be made more than 28 days after the date on which the Court gives its decision on the appeal or more than 3 months after the date of the order if an appeal is not made against the order. (3) Compensation under this section is to be awarded against the council. 1. There is no evidence available to the Court that the Order issued by the Council was unsubstantiated or its terms were unreasonable. It is clear that the door had been installed contrary to the terms of the building approval and that the works do not comply with the provisions of National Construction Code – Building Code of Australia (NCC BCA 2019, Volume 2 – Fire Separation under 3.7.2.5(a)). Accordingly, there should be no consideration of costs being awarded. 2. At the conclusion of the conciliation conference, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties (being a decision that the Court could have made in the proper exercise of its functions). 3. In accordance with the provisions of s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the decision. I am satisfied that the parties' decision is one that the Court could have made in the proper exercise of its functions. 4. The orders of the Court are: 1. Within 120 days from the date of these Court Orders, the Applicant is to: 1. Remove the garage roller door and associated wooden frame installed on the carport at the subject premises and construct a 1.8m high metal fence and gate not closer than 500mm from rear of the carport structure, extending from the western boundary fence to the dwelling, or 2. The carport which has been enclosed, is to be upgraded to fully comply with Part 3.7.2 Fire separation of external walls of Volume 2 of the Building Code of Australia 2019. Certification from an Accredited Certifier under the Building Professionals Board Accreditation Scheme is to be provided to Council certifying that the completed works satisfy these provisions. All works required by this Order are to be wholly within the boundaries of 3 Portland Close, Illawong. This shall be confirmed by a certificate from a registered surveyor; and 3. Implement measures to ensure that surface water from the rear paved area north of the carport is not directed onto the adjoining property. This is to be achieved by re-grading the paved area to direct surface water into the existing stormwater system located at the north western corner of the dwelling. 4. Pursuant to sections 34(3)(a) and (b) of the Land and Environment Court Act 1979 (NSW) there is a requirement for the Court to dispose of the proceedings in accordance with the parties' decision, if the parties' decision is a decision that the Court could have made in the proper exercise of its functions. 5. The Parties agree that the Court has power to make these Orders pursuant to s 8.18(4) of the Environmental Planning & Assessment Act 1979. ……………………… Sue Morris Acting Commissioner of the Court ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 21 November 2019