Land and Environment Court New South Wales Medium Neutral Citation: Patane v Blacktown City Council [2020] NSWLEC 1111 Hearing dates: 10 December 2019; submissions 17 January 2019; 31 January; 8 February 2020 Date of orders: 14 April 2020 Decision date: 12 March 2020 Jurisdiction: Class 1 Before: Clay AC Decision: The Court orders that: (1) The appeal is upheld. (2) Pursuant to s 8.18(4)(c) of the Environmental Planning and Assessment Act 1979, substitute for the development control order the subject of this appeal the development control order which is annexed and marked 'B'. (3) The exhibits other than Exhibits A and 3 are returned. Catchwords: DEVELOPMENT CONTROL ORDER – whether necessary to comply with BCA – whether demolition required – alternate solutions – discretion Legislation Cited: Blacktown Local Environmental Plan 2015 Environmental Planning and Assessment Act 1979 Environmental Planning and Assessment Regulation 2000 Land and Environment Court Act 1979 Cases Cited: Coffs Harbour Council v Arrawarra Beach Pty Limited (2006) 148 LGERA 11; [2006] NSWLEC 365 Imaroo Flyer Pty Ltd v Berrigan Shire Council [2010] NSWLEC 1251 Texts Cited: Building Code of Australia Category: Principal judgment Parties: Robert Patane (Applicant) Blacktown City Council (Respondent) Representation: Counsel: J McIntosh (Applicant) L Nurpuri (Respondent) Solicitors: Houston Dearn O'Connor (Respondent) File Number(s): 2019/112488 Publication restriction: No Judgment 1. COMMISSIONER: On 10 November 2016, the Respondent granted the Applicant development consent to carry out an extension to his home at 4 Eastwood Lane, Doonside (the Site) for a rumpus room, media room and hall (the extension). Regrettably, the Applicant caused to be built the extension without having obtained a construction certificate, thereby in breach of the Environmental Planning and Assessment Act 1979 (the EPA Act). 2. Further, some of the work carried out to erect the extension was otherwise than in accordance with the Building Code of Australia (BCA). 3. On 5 March 2019, the Respondent served a Development Control Order (the Order) on the Applicant requiring the demolition of the extension. This is an appeal pursuant to s 8.18(1) of the EPA Act against the Order. 4. At the commencement of the hearing, there were two matters in issue – drainage of the extension including the prevention of water entry to the extension and the construction of the slab beneath the extension. The Applicant says that the work carried out is sound and the appeal should be upheld, and the Order revoked. The Respondent says that that is not the case and the appeal should be dismissed. 5. For the reasons which follow, an order is to be made in substitution for the Order under appeal. I will give the parties an opportunity to make any submission about the form of the order because neither party proffered any draft alternate order, notwithstanding the evidence before the Court. Statutory Context 1. A development control order may be given by a Council pursuant to s 9.34 of the EPA Act and Part 1 of Schedule 5: 9.34 Orders that may be given (cf previous s 121B) (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, … 1. Schedule 5 provides: 1. The Respondent relied on this power to issue the Order because the extension was erected in contravention of the EPA Act. There is no issue taken in these proceedings about the Council's power to issue the Order, nor about the validity of the Order itself. 2. The right of appeal against an order is found in s 8.18(1) of the EPA Act. Section 8.18(4) sets out the powers of the Court on appeal: 4) 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. In hearing the appeal, the Court re-exercises the functions of the Council in determining whether the order should be issued. Section 39 of the Land and Environment Court Act 1979 (the Court Act) provides as follows: 39 Powers of Court on appeals ... (2) In addition to any other functions and discretions that the Court has apart from this subsection, the Court shall, for the purposes of hearing and disposing of an appeal, have all the functions and discretions which the person or body whose decision is the subject of the appeal had in respect of the matter the subject of the appeal. (3) An appeal in respect of such a decision shall be by way of rehearing, and fresh evidence or evidence in addition to, or in substitution for, the evidence given on the making of the decision may be given on the appeal. ... 1. The use of the word "may" in both s 9.34(1) and s 8.18(4) makes it clear that, even if the statutory requirements for the issue of an order in Part 1 of Schedule 5 are met, there is a broad discretion to consider whether to issue an order (s 9.34(1)) and to consider the appropriate orders on the hearing of an appeal (s 8.18(4)). However, this discretion does not extend to granting a planning approval for structures to remain (see Imaroo Flyer Pty Ltd v Berrigan Shire Council [2010] NSWLEC 1251 at [22]), a building certificate or an occupation certificate. In these proceedings, the question is confined to how the discretion ought to be exercised in the circumstances. Facts 1. The Site is zoned R2 Low Density Residential under the Blacktown Local Environmental Plan 2015 (BLEP). Dwelling houses are a permissible use in the zone. 2. In September 2016, the Applicant made a development application (DA 16/04725) for additions to an existing dwelling on the Site comprising a rumpus room, media room and hall in accordance with identified drawings. 3. On 10 November 2016, the Respondent granted consent to DA 16/04725 (the Consent). The Consent included a number of conditions, including the requirement for a construction certificate to be granted prior to the commencement of any constructions works and the work to be in compliance with the BCA. 4. The Applicant carried out the construction works without having obtained prior thereto a construction certificate. The Respondent also says that some of the works were inconsistent with the approved plans, but that work is not the subject of issue in this case. The period of time over which the work was carried out is not entirely clear, but it was during 2018 that it seems it came to the attention of the Council. Nothing turns on that. 5. There was some communications between the Applicant and Respondent during late 2018 and on 5 December 2018 the Respondent issued a Notice of Intent to Give a Development Control Order in accordance with cll 6 and 8 of Schedule 5 of the EPA Act. 6. There was further communication between the parties, but the Respondent remained unsatisfied with the Applicant's response, and on 5 March 2019 the Respondent issued and served the Order the subject of this appeal. 7. The Order is relevantly in the following terms: "…pursuant to the provisions of Division 9.3 of the Act, you are hereby ordered to: 1. Demolish the unauthorized dwelling addition (comprising the rumpus room, media room and hall as depicted on Drawing NO (sic) DA02 prepared by Magnum Projects dated Aug 2016 (copy attached), including the concrete floor slab, in accordance with Australian Standard 2601-2001, The demolition of structures; and 2. Remove all demolished building material/waste from the site within ninety (90) days from the Date of this Order." 1. In accordance with cl 5 of Schedule 5 of the EPA Act, the Respondent gave reasons for the Order: "1. The unauthorized dwelling addition had been constructed without an approval required under the Act; 2. The unauthorized dwelling addition is not "Exempt Development" under the provisions of the State Environmental Planning Policy (Exempt and Complying Development Codes) 2008; 3. The unauthorized dwelling addition does not comply with the provisions of the Building Code of Australia 2016, Volume 2; 4. To ensure the development complies with applicable planning instruments and development controls; and 5. To ensure the health, safety and amenity of the building occupants." 1. The Order also drew attention to the right of appeal and the consequences of non-compliance with the Order in accordance with the provisions of Schedule 5 of the EPA Act. Issues 1. In accordance with a direction made by the Court on 29 November 2019, the Respondent filed a Statement of Issues on 2 December 2019. The direction was made because it became apparent that not all contentions in the Respondent's Statement of Facts and Contentions were pressed having regard to information provided by the Applicant, and the Applicant said that he wanted clarification of what was in issue and why it was in issue. The Respondent said that had been made clear in its correspondence to the Applicant, but for the Court's benefit, in any event, I ordered that a Statement of Issues (SOI) be filed and served. 2. The SOI included the contention that the works in the Order had been carried out without the benefit of a construction certificate. That is not in issue. The two substantive issues identified in the SOI are: "Contentions 3 and 6 Compliance with the National Construction Code (Building Code of Australia 2016, Volume Two) (BCA) The grading of the ground around the building and the finished floor level of the building do not comply with Part 3.1.2.3 and Figure 3.1.2.2 of the BCA. These gradients and "freeboard" levels are required to prevent the entry of surface water into the building during heavy rainfall events. The roof water down pipes at the north-western corner of the building and adjacent to the dwelling's kitchen window do not drain to a drainage system that complies with Part 3.1.2 of the BCA. Contentions 4 and 5 Lack of information to justify the issue of a Building Information Certificate There is no evidence that a vapour barrier that is compliant with Part 3.2.2.6 of the BCA and Part 5.3.3 of Australian Standard 2870-2011, Residential slabs and footings, and placed on filling required by Part 3.2.2.2 of the BCA, is installed under the slab-on-ground concrete floor construction. The barrier is required to prevent moisture rising through the slab to the internal portions of the building." 1. The heading for the second issue is misleading. There was no application for the issue of a building certificate before the Court. The parties and the Court treated the second issue as one concerning the construction of the slab and whether or not it should be demolished due to the shortcomings identified in the issue. The hearing and its prequels 1. The matter was listed before me for pre-trial directions at the request of the Respondent on 29 November 2019 some 11 days before the hearing date. The Respondent was concerned that the Applicant's expert was not cooperating with its expert in order to prepare a joint report which had been due to be filed and served by 13 November 2019 in accordance with directions made by the Registrar on 22 October 2019. The Respondent sought leave to file and serve an individual report from its expert as it appeared a joint report would not be forthcoming. 2. The Applicant indicated there were difficulties with his expert, but there remained some prospect of him participating in a joint conference and preparing a joint report. The Applicant also sought clarification of the remaining issues. 3. In the circumstances, I declined leave to the Respondent to file an individual report and ordered that a joint report be filed and served by 6 December 2019. I also directed the Respondent to file and serve a Statement of Issues by 2 December 2019. I granted liberty to apply on 24 hours' notice. 4. The liberty was exercised, and a further directions hearing was held on 5 December 2019. The Applicant had been unable to persuade his nominated expert to continue in the matter and therefore there was no joint report capable of being filed and served in accordance with the earlier direction. 5. I granted leave to the Applicant to engage an appropriately qualified expert in lieu of the expert named in the directions made by the Registrar on 22 October 2019. Leave was not sought, nor granted, to file or rely upon, an individual report by any expert retained by the Applicant. In view of the uncertainty of the hearing proceeding, and the distinct possibility of an application for adjournment, I directed that the hearing commence in Court rather than on site on 10 December 2019. 6. At the commencement of the hearing on 10 December 2019, the Applicant, through his counsel, indicated that he had retained an appropriately qualified expert, Mr Peter Blacker, who had prepared a report. The expert had not sought to confer with the Council expert, nor, obviously, taken any steps to prepare a joint report. Mr Blacker's report was only made available to the Respondent at or shortly prior to the hearing. 7. The Applicant sought leave to rely on the individual report of Mr Blacker. That was opposed by the Respondent. I did not grant leave. In my opinion, the best assistance to the Court was to be the opinions of experts after they had conferred and shared their views, and potentially modified their views in accordance with their obligations to the Court as experts. There had been no prior direction for the filing of individual reports, and it was not necessary to receive the Applicant's individual report at that stage in order to determine the relatively straightforward issues between the parties. 8. I directed that the experts meet on site forthwith and then a site inspection would take place with the parties and their representatives thereafter. The Court would receive such evidence on site from the experts as would be appropriate. 9. During the course of exchanges with counsel for the parties, the Applicant's counsel submitted that there was a denial of procedural fairness in not receiving the report of Mr Blacker. I indicated that after the meeting of experts and the site inspection, when back in Court Mr Blacker and the Council expert would give evidence and thereby be given the opportunity to identify that with which they agree, that with which they do not agree and the reasons for that disagreement. In essence, it would be an oral joint report from the witness box. The witnesses could be cross-examined. 10. In written submissions, the Applicant's counsel has submitted that the rejection of the tender of Mr Blacker's report "did not provide reasonable fairness to the Applicant". There is no submission, however, as to any consequence of the rejection of the report. There was no submission made, nor comment during the hearing, that Mr Blacker did not have a full opportunity to explain his opinions about the issues. He had every opportunity to do so, and indeed did so. If a submission is to be made about procedural fairness, which is not relevant to the determination of the issues in any event, then, in my opinion, it is incumbent upon counsel to properly identify why there was procedural unfairness and what opportunity their client was truly denied. The Applicant's counsel has not done so. 11. At the conclusion of the evidence, there was not time for the parties to conclude submissions on the hearing day. I made directions for written submissions. I allowed an extended period for the Applicant's submissions to allow the parties an opportunity to discuss the matter with a view to its resolution having regard to the evidence to which I refer in the next section. The evidence 1. Mr Blacker, retained by the Applicant, is a civil engineer with significant experience. Mr Brian Malouf is the Respondent's Executive Building Surveyor. He also has extensive experience, largely in health and building compliance and audits. 2. The experts met on Site late in the morning of the hearing. Shortly after the parties and the Court arrived at the Site, the experts completed their conference and informed the Court that the first issue (drainage) had been resolved. They explained that in order to properly drain water away from the extension and to prevent water egress into the extension, that the courtyard outside the extension needed to be modified to create a fall into a new drainage system to be constructed around the extension. 3. The experts disagreed about the second issue, concerning the slab beneath the extension. 4. The matter resumed in Court and after openings and tender of documents the experts gave their evidence. 5. A sketch had been prepared by Mr Blacker which both experts agreed fairly represented a solution to the drainage issue identified as the second issue in the SOI (but is referred to as the first issue in the hearing). The sketch, whilst identifying what needed to be done, was by hand and preliminary, and to be given effect would need to be properly re-drawn with additional particulars. 6. It was accepted by the parties, and assumed by the experts, that the new slab beneath the extension did not have a "vapour barrier" under it, as required by clause 5.3.3 of Australian Standard 2870-2011 (the AS) and Part 3.2.2.2(b) of the BCA. The slab for the extension was poured on the top of a previous slab, about which there was no information as to its construction. The evidence was that the previous slab was tiled, the new slab was placed on top, with a sand and cement base, and then tiles placed on the new slab. 7. Mr Blacker said, without disagreement from Mr Malouf, that at the present time, some three years after construction of the extension, there was no evidence of moisture within the extension. He said that he often saw vapour barriers installed which had holes in them and that here the layers of two slabs, two sets of tiles and a layer of sand and cement was sufficient barrier to operate to prevent moisture rising into the rooms of the extension. 8. Mr Blacker was not aware of the nature and quality construction beneath the top slab and did not know the specific geotechnical qualities of the soil beneath this slab although he had general knowledge of the type of soil profile in the area. He had not investigated weather conditions and rainfall over the previously three years although he said that there had been rain in that period, including periods of heavy rain. 9. In fairness to Mr Blacker, he had only very recently been engaged and therefore did not have the benefit of more time for investigation. 10. Mr Malouf was concerned with vapour penetration into the extension leading to an unsatisfactory moist internal environment. Moisture obviously encourages unhealthy mold and mildew growth and can lead over time to structural issues in a building. The vapour or moisture he said finds its way through cracks and/or porous surfaces and moves by capillary action. In the absence of an effective barrier, there remained the risk of moisture penetration. 11. Mr Malouf said that the BCA provides for building to certain standards in order to reduce risks and that in the absence of precise information about what is below the new slab he could not be satisfied there is an effective barrier and that there was not a risk now and in the future for vapour/moisture penetration. 12. The experts were asked, assuming the Court was not satisfied with the present situation, to consider a solution which did not involve demolition of the slab and the placement of a vapour barrier beneath a replacement slab. Logically, if the slab had to be demolished the whole of the extension would have to be demolished. 13. The experts agreed that a solution would be to remove the existing top layer of tiles and apply a waterproofing membrane to the top of the slab. The slab could then be re-tiled. This would involve the removal of the internal walls so there could be a complete waterproofing of the slab. Mr Blacker then said that there are products which can be injected into a slab beneath internal walls to also operate as a barrier. Mr Malouf agreed that there were such products. Consideration 1. The experts accepted that in order to comply with the BCA in relation to drainage, the work encapsulated in the sketch referred to in [40] needed to be carried out. The extension will be properly drained when that work is done and therefore the risk of inundation and moisture penetration will be sufficiently eliminated. 2. The remaining issue is the state of the slab beneath the extension. The objective of the vapour barrier is precisely as its name would suggest - a barrier to prevent vapour and moisture from penetrating into the slab and upwards through the slab which is porous in nature. It matters not that there have been occasions, as identified by Mr Blacker, when vapour barriers are installed which have holes in them. That is not the intended manner of installation, rather it is intended as an effective barrier against vapour and moisture. 3. I agree with Mr Malouf. In the absence of detail of the material below the slab, I cannot be satisfied that there is an effective barrier to the passage of vapour and moisture. There is a potential path of travel identified by Mr Malouf and it is simply not known whether or not there is an effective barrier to that path. 4. It is true as Mr Blacker pointed out that in the three years or so since construction there is no evidence of moisture penetration. However, there is no evidence that if there was not an effective barrier that there should be evidence of moisture by now. It is not sufficient for the evidence to be general in nature without the Court having the benefit of a detailed analysis so as to be in a position to form that conclusion. 5. I was urged by the Applicant to reject the evidence of Mr Malouf on the basis that he was biased because he was simply "towing the Council line". It was said that he referred to the opinion of "Council" rather than his own opinion and was criticized by the Court for doing so. 6. It is true that on one or more occasions Mr Malouf referred to "Council" rather than himself, frankly a not uncommon habit of employees of Council when giving evidence. When the Court intervened to remind Mr Malouf that the Court wanted his opinion as an expert and not a "Council" opinion, he made it quite clear that he was giving his own opinion. I accept his evidence in that regard (cf Coffs Harbour Council v Arrawarra Beach Pty Limited (2006) 148 LGERA 11; [2006] NSWLEC 365 at [14]). 7. It follows, therefore, that in the present circumstances there are two bases upon which a development control order can be given - to ensure proper drainage and the inadequacy of the slab without a vapour barrier. The question is whether demolition should be ordered or whether there should be another order. 8. The Respondent, in its submissions, said quite properly: "As a general proposition the Respondent would not oppose a modified development control order which would allow for the Works to be brought into compliance with the BCA." 1. The Respondent then, however, added that in the absence of acceptable solutions being proffered by the Applicant, then the appeal should be dismissed. I had raised with the parties the question of proportionality of the response of demolition to the issues of concern. The Respondent, however, made no submission about the need for a response to be proportionate in the exercise of discretion. Nor did the Respondent proffer any draft alternative order. 2. The Applicant submitted the Order should be revoked. The Applicant ignored altogether the fact that his own expert was in agreement with the Respondent's expert that there was a relevant breach which had to be addressed in in relation to drainage. Whilst addressing proportionality briefly, the Applicant also failed to provide any draft order reflecting the need for the drainage work. 3. The notion of proportionality is, in the present circumstances, no more than considering the manner in which the discretion of the Court is to be exercised in achieving the goal of compliance of the extension with appropriate building standards. The discretion is broad, but must be exercised having regard to the scope, object and purpose of the power being exercised. 4. It appears to me to be self-evident that it is unnecessary to require the demolition of the extension and slab when the experts have agreed that in principle there are solutions to each of the issues which do not require total demolition. Whilst the solutions have not been articulated in detail, there appears to be no doubt that they are capable of being properly articulated sufficiently to be ultimately the subject of a development control order. Demolition of the whole extension is a remedy which is out of proportion to the shortcomings of the extension. 5. The parties have hitherto overlooked cl 1 of Part 4 of Schedule 5 of the EPA Act which provides a mechanism for specifying in an order a standard that the premises are required to meet, rather than the specific things the person receiving the order is required to do. It states : 1 Order may specify standards and work that will satisfy those standards (cf previous ss 121P, 121R) (1) A relevant enforcement authority may give a development control order that does the following instead of specifying in the order the things the person to whom the order is given must do or refrain from doing- (a) specifies the standard that the premises concerned are required to meet, (b) indicates the nature of the work that, if carried out, would satisfy that standard. (2) The relevant enforcement authority may, in any such development control order, require the owner or occupier to prepare and submit to the relevant enforcement authority, within the period specified in the order, particulars of the work the owner or occupier considers necessary to make provision for such matters as may be so specified. (3) The relevant enforcement authority must, within 28 days after those particulars of work are submitted to the authority- (a) accept the particulars without modification or with such modifications as the authority thinks fit, or (b) reject the particulars. (4) If the relevant enforcement authority accepts the particulars of work without modification, the authority must as soon as possible order the owner to carry out that work. (5) If the relevant enforcement authority accepts the particulars of work with modifications or rejects the particulars, or if an owner fails to submit particulars of work as required under this clause, the authority must- (a) prepare, within 3 months after the acceptance, rejection or failure, particulars of the work that the authority considers necessary to make provision for the matters specified in the order given to the owner, and (b) order the owner to carry out that work. (6) An order under this clause is not invalid merely because of the failure of the relevant enforcement authority that gave the order to accept or reject any particulars of work or prepare particulars of any work within the period required by this clause. (7) A relevant enforcement authority may recover from an owner as a debt the authority's expenses of preparing particulars of work under this clause. (8) An order under this clause forms part of the development control order to which it relates. 1. An order can be crafted which sets the standards which must be met in respect of each matter and requires the Applicant to give particulars of the work to be carried out to meet that standard. It is then open to the Respondent to accept or reject the particulars. If accepted, then the Respondent will order that that work be carried out. If rejected, the Respondent can provide the particulars and order the work to be carried out in accordance with the Respondent's particulars. 2. The Court has power to make an order in substitution for the order under appeal (s 8.18(4)(c) of the EPA Act). The order I propose is the second of the orders available under order 11 in Part 1 of Schedule 5 of the EPA Act which is in the following terms: 1. I interpose that "development standard" is defined in s 4 of the EPA Act to include the provision of a regulation in relation to the carrying out of development under which requirements are specified or standards are fixed in respect of any aspect of that development. Clause 98 of the Environmental Planning and Assessment Regulation 2000 provides that compliance with the BCA is a prescribed condition of a development consent that involves any building work. Accordingly, an order 11 in Part 1 of Schedule 5 embraces the present circumstance where compliance with the BCA is required – such an order can require compliance with the BCA. 2. Annexed to these reasons is a draft order giving effect to my determination. I will not make final orders until the parties have had an opportunity to make any submission as to the form of the orders. It is not an opportunity to make any submission as to the merits of the appeal. 3. Of course, it is open to the parties to agree on the form of a final order, if the particulars can be agreed upon. That is a course which I would urge upon the parties for the sake of future certainty, and thereby to avoid the potential for more disagreement. Directions 1. I therefore make the following directions: 1. Within fourteen days the parties are to either: 1. indicate agreement to the draft order annexed; or 2. provide any agreed alternative order, or 3. if not agreed, each party is to provide its proposed order together with any submission in support of no more than one page. 1. Liberty to restore on 2 days' notice. 1. Upon receipt of the communication, final orders will be made. Addendum made on 14 April 2020 1. On 12 March 2020, I made directions concerning the proposed order consequential upon my reasons delivered that day. The parties have agreed on the terms of the order which is properly consistent with my reasons. 2. Accordingly, I make the following orders: 1. The appeal is upheld. 2. Pursuant to s 8.18(4)(c) of the Environmental Planning and Assessment Act 1979, substitute for the development control order the subject of this appeal the development control order which is annexed and marked 'B'. 3. The exhibits other than Exhibits A and 3 are returned. ………………………………… P Clay Acting Commissioner of the Court Annexure B (860 KB) Amendments 14 April 2020 - Addendum made on 14 April 2020 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 April 2020