Land and Environment Court New South Wales

• Medium Neutral Citation: Woollahra Municipal Council v Sahade [2012] NSWLEC 76
• Hearing dates: 19 and 20 March 2012, 18 April 2012
• Decision date: 18 April 2012
• Jurisdiction: Class 4
• Before: Preston CJ

Decision

Orders as set out at [88]

• Catchwords: CIVIL ENFORCEMENT - construction of a stairway - whether exempt development - whether stairway a pathway - whether stairway meets development standards - whether stairway complied with requirement for exempt development that it does not involve removal of a tree - stairway not exempt development - breach of statute established - council sought declaration of breach and order for removal - whether court should exercise discretion to refuse relief - declaration and order should be made
• Legislation Cited: Environmental Planning and Assessment Act 1979 ss 76, 76A
• Cases Cited: Warringah Shire Council v Sedevcic (1987) 10 NSWLR 335
• Category: Principal judgment
• Parties: Woollahra Municipal Council (Applicant); Mrs Rita Sahade (Respondent)
• Representation: Mr P R Rigg (Solicitor) (Applicant); Mr M V Sahade (Barrister) (Respondent); Norton Rose (Applicant); Oliveri Lawyers (Respondent)
• File Number(s): 40587 of 2011

EX TEMPORE Judgment

A debate about the legality of a stairway

1 Mrs Sahade and her family want to have more convenient access to their residence at 86 Wolseley Road, Point Piper. Without seeking development consent, Mrs Sahade arranged for tradesmen to cut down a row of pencil pines which shielded a neighbouring residence at 84 Wolseley Road, Point Piper and to build over the cut stumps a flight of timber stairs to link the garage forecourt, which is on a higher elevation, with an existing pathway and stairs lower in elevation, which lead to the front door of Mrs Sahade's residence.

2 The neighbours complained to the local council, Woollahra Municipal Council ("the Council"). After investigation, the Council brought proceedings seeking a declaration that the construction of the stairway is a breach of the Woollahra Local Environmental Plan 1995 ("LEP") and the Environmental Planning and Assessment Act 1979 ("EPA Act") and an injunction ordering Mrs Sahade to remove the stairway in order to remedy the breach.

3 Mrs Sahade has defended the proceedings on the basis that the stairway is exempt development under s 76(2) of the EPA Act and the State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 ("SEPP"). If the development were to be exempt development, development consent would not have been required under the LEP or the EPA Act and there would be no breach.

The stairway and its location

4 Mrs Sahade's residence is one of three in a strata subdivision. It is a freestanding dwelling house in Lot 3 of SP 62022, known as 86 Wolseley Road, with frontage to Sydney Harbour. Above the residence to the east is a two-storey, residential flat building containing another two residences, Lots 1 and 2 in SP 62022, known as Apartments 1 and 2, 84 Wolseley Road. Further east from the residential flat building is a forecourt for the garages for the three residences. Above the garage forecourt is a two-storey building with garages on the lower level and studios for each of the three residences on the upper level. The studio for Lot 3 is 61 square metres in area and is currently used as a home gym, with toilet and shower facilities.

5 The common driveway from Wolseley Road sweeps around the garage building to its south then down to the garage forecourt.

6 Access to Mrs Sahade's residence at 86 Wolseley Road, before construction of the stairway, was, and still is, by two means. First, there is a flight of stairs starting from the garage forecourt and running along the southern side of the residential flat building at 84 Wolseley Road, past a terrace and swimming pool on the common property located between the buildings of 84 and 86 Wolseley Road, then a passageway heading northwards between the west face of the retaining wall for the pool terrace and the east face of the residence at 86 Wolseley Road, to the front verandah and the front door of that residence.

7 The second means of access is by an inclinator which starts at the garage forecourt and travels parallel to, and between, the northern boundary of the property and the northern face of the residential flat building at 84 Wolseley Road, until it finishes at a landing adjacent to the front verandah of the residence at 86 Wolseley Road. Between the inclinator track and the northern face of the residential flat building at 84 Wolseley Road used to be a row of pencil pines and a landscaped courtyard. The upper section of this row of pines was planted in accordance with a development consent for DA 558/98 dated 23 February 1999 for alterations and additions to the residential flat building at 84 Wolseley Road. These pines formed a screen between the inclinator track and a bedroom and the dining room of the residence of Apartment 2 in the residential flat building.

8 Further down, below where the pencil pines used to be located, is a flight of masonry and concrete stairs, also running parallel to the inclinator track and abutting the northern facade of the residential flat building at 84 Wolseley Road and the pool terrace. These stairs provide access for Mrs Sahade and her family from the residence of 86 Wolseley Road to the pool terrace. The pool terrace and pool are on common property and able to be used by the residents of all three apartments in the strata plan. Access to the pool terrace is also available from the stairs on the southern side of the property.

9 In March 2011, Mrs Sahade arranged for tradesmen to cut down the pencil pines and construct a new set of timber stairs with a timber balustrade on its southern side. The stairs were located above the cut stumps of the pencil pines between the inclinator track and the landscaped courtyard outside the bedroom and dining room of Apartment 2, 84 Wolseley Road.

10 The upper timber landing for the stairway is constructed on top of, but extends further west than, the concrete landing for the inclinator. The lower timber landing is at the level of, and west of, the pathway with stepping pavers comprising part of the landscaped courtyard outside the dining room and bedroom of Apartment 2, 84 Wolseley Road.

11 The Council commenced these proceedings in July 2011. Between 16 and 20 December 2011, Mrs Sahade arranged for tradesmen to modify the stairway built in March 2011. The stairway was cut back on its southern side to make it slightly narrower and a timber planter box was constructed in the space thereby created, between the stairway and the landscaped courtyard outside the bedroom and dining room of Apartment 2, 84 Wolseley Road. The southern wall of the planter box encroaches slightly into the pathway with stepping pavers in the landscaped courtyard. A row of new pencil pines was planted in the planter box. Lights were removed from the balustrade and relocated to the south face of the dividing fence on the northern boundary of the property. This modified flight of stairs and planter box remains today and is the development which the Council contends is in breach of the LEP and the EPA Act and should be removed.

The applicable statutory provisions

12 The property of 84-86 Wolseley Road is zoned Residential 2(a) Residential A under the LEP. In the Residential A zone, the only purposes for which development may be carried out without development consent are drainage, home occupations carried on in dwelling houses and roads. None of these purposes apply to the stairway. The purposes for which development may be carried out only with development consent include eight nominated purposes, one of which is dwelling houses. A dwelling house is defined in Schedule 1 of the LEP to mean: "a building containing one but not more than one dwelling on one allotment of land." The building at 86 Wolseley Road may be characterised as a dwelling house as it contains one dwelling on one allotment of land, being Lot 3 of SP 62022. Any development other than development nominated as permissible without or with development consent is prohibited.

13 Hence, if the stairway can be characterised as being for the purpose of a dwelling house, it could only be carried out with development consent under the LEP. Section 76A(1) of the EPA Act requires that, if an environmental planning instrument (such as the LEP) provides that specified development may not be carried out except with development consent, a person must not carry out the development on land to which the provision applies unless the person obtains such a consent and carries out the development in accordance with the consent. Failure to comply with this requirement is a breach of the EPA Act. In this case, Mrs Sahade did not obtain development consent before erecting the stairway.

14 The requirement under the LEP to carry out specified development on land only with development consent is, however, subject to other statutory provisions which exempt certain types of development from the requirement for development consent.

15 Section 76(2) of the EPA Act states that an environmental planning instrument may provide that development of a specified class or description that is of minimal environmental impact is exempt development. One environmental planning instrument that has so exempted development is the SEPP.

16 Section 76(3) of the EPA Act states that if development is exempt development, the development may be carried out, in accordance with the instrument, on land to which the provision applies without the need for development consent except in two circumstances, which are not relevant to the present case.

17 The SEPP states in cl 1.15 that development that is specified in an exempt development code that meets the standards specified for that development and that complies with the requirements of Division 2 of Part 1 of the SEPP for exempt development is exempt development for the purposes of the SEPP.

18 The exempt development code is in Division 1 of Part 2 of the SEPP. This Division contains numerous subdivisions specifying different types of development that are exempt and the development standards for those types of development. The relevant type of development in this case, on which Mrs Sahade relies, is in Subdivision 28 concerning pathways and paving. Clause 2.55 specifies the development as:

"The construction or installation of a pathway or paving associated with a balcony, deck, patio, pergola, terrace or verandah is development specified for this code."

19 Clause 2.56 specifies the development standards with which this specified development must comply in order to be exempt development:

"The standards specified for that development are that the development must:

(a)be for domestic purposes only, and

(b)be constructed so that any surface water is disposed of without causing a nuisance to adjoining owners, and

(c) not require cut or fill more than 600mm below or above ground level (existing), and

(d)not have an area more than 15% of the floor area of the associated development."

20 Clause 1.16 of the SEPP is in Division 2 of Part 1 of the SEPP and provides the requirements for exempt development. One of these requirements is in cl 1.16(3)(b), which provides that:

"To be exempt development for the purposes of this Policy, the development must:

(b)not involve the removal or pruning of a tree or other vegetation that requires a permit or development consent for removal or pruning, unless that removal or pruning is undertaken in accordance with a permit or development consent."

21 The removal or pruning of a tree or other vegetation may require development consent under an environmental planning instrument, such as the LEP or a tree preservation order made under such instrument, or under a development consent which requires the preservation of a tree or other vegetation. In this case, at the minimum, the latter situation applies.

22 Development on the property has been carried out in accordance with a number of development consents. One of these consents is for DA 558/98 dated 23 February 1999. This consent required development to be carried out generally in accordance with specified plans numbered DA-01 to DA-05 dated November 1998 and drawn by Conner & Solomon Architects. The lower ground floor plan DA-02 required the planting of a pencil pine screen and the construction of a landscaped courtyard outside the bedroom and dining room of Apartment 2, 84 Wolseley Road. The installation and maintenance of this landscaping is required by s 76A(1)(b) of the EPA Act, which provides that development must be carried out in accordance with the development consent for the development. Removal or modification of the landscaping required by the consent would require fresh development consent or modification of the existing development consent.

The issues in the proceedings

23 The legality of the stairway depends on the stairway being exempt development. This requires determining whether:

(a) the stairway is a pathway within the meaning of cl 2.55 of the exempt development code in Part 2 Division 1 of the SEPP;

(b) the stairway meets the development standards specified in cl 2.56 for that development; and

(c) the stairway complies with the requirement for exempt development in cl 1.16(3)(b) in Part 1 Division 2 of the SEPP.

24 If the stairway is not exempt development, its construction would have been in breach of the EPA Act as it was erected without development consent required by the LEP and the EPA Act and would have resulted in development not in accordance with DA 558/98.

25 If breach is established, the next issue is what, if any, order should be made to remedy and restrain such a breach. The Council seeks for the stairway to be removed so as to remedy the breach while Mrs Sahade seeks for the Court, in the exercise of its discretion, to allow the stairway to remain.

Is the stairway a pathway?

26 In order to be development specified in cl 2.55 of the exempt development code, the stairway must be:

(a) a pathway;

(b) associated with a balcony, deck, patio, pergola, terrace or verandah.

27 The Council contends this particular stairway does not meet the description of a pathway in cl 2.55 because, first, of its construction and height; secondly, it is not of minimal environmental impact; and thirdly, it is not secondary or subordinate to the associated development of the front verandah and pool terrace.

28 As to the first contention, the Council refers to the Macquarie Dictionary definitions of "pathway" as being "a path" and of "a path" as being:

"1. a way beaten or trodden by the feet of people or animals. 2. a walk in a garden or through grounds. 3. a route, course or track in which something moves."

29 The Council submits that a pathway under these definitions denotes a way close to the original ground surface and its status as a pathway derives from usage rather than from construction alone. The Council submits that the construction and height of the stairway in this case does not meet these definitions. At its upper end, where it abuts the garage forecourt, the stairway is 2.2 metres in height plus the height of the balustrade and it is elevated above the ground until it reaches the lower landing.

30 As to the second contention, the Council refers to s 76(2) of the EPA Act and cl 1.3(b) of the SEPP which provide that development identified as exempt development needs to be of a class or description that it is of minimal environmental impact. In this case, the Council submits, the specified development of a pathway in cl 2.55 of the SEPP has been identified as being of minimal environmental impact. The Council submits that the notion of a way beaten or trodden by use is consistent with being of minimal environmental impact. In contrast, however, the Council submits that the construction, height and location of the stairway in this case results in the stairway not having a minimal environmental impact. The Council submits that this also points to such a stairway not being a pathway within the meaning of cl 2.55.

31 As to the third contention, the Council submits that, in order to be a pathway, the way must be secondary or subordinate in status to the types of associated development specified in cl 2.55. This subordinate status is reinforced by the development standard in cl 2.56(d) that the pathway not have an area more than 15% of the floor area of the associated development. The Council submits that the construction and height of the stairway in this case are such as to cause the stairway to lose its secondary or subordinate status to the pool terrace and front verandah to which the stairway provides access.

32 Mrs Sahade submits that a stairway can be a pathway within cl 2.55. First, cl 2.55 refers to "the construction or installation of a pathway", and hence a pathway within cl 2.55 is not limited to the first and second dictionary definitions of "a way beaten or trodden by the feet of people or animals" or "a walk in a garden or through grounds", both of which do not involve construction or installation. Secondly, Mrs Sahade submits that the third dictionary definition of "a route, course or track in which something moves" is wide enough to include a constructed stairway. A stairway is a pathway up or down. Thirdly, Mrs Sahade submits that the construction and height of the stairway in this case do not cause the stairway not to be a pathway. The stairway joins two areas of land at ground level and provides a pathway up and down between these areas. It also extends an existing pathway which has steps connecting the pool terrace with the front verandah of Mrs Sahade's residence at 86 Wolseley Road.

33 I agree with Mrs Sahade's submissions and reject the Council's submissions. In the context of cl 2.55, a pathway is a way or route which provides access to the specified types of associated development. These types of associated development may not necessarily be at ground level (a balcony, deck, patio, pergola, terrace or verandah may be elevated above ground level). Access to these types of associated development may need to be constructed above ground level, such as by a ramp or stairs. Sloping land and changes in topography across land may also necessitate construction of means of access above ground level, such as by an elevated walkway, a ramp or stairs. The reference in cl 2.55 to a pathway being constructed or installed also indicates that the pathway may be above ground level. Hence, I do not accept that a pathway in cl 2.55 cannot include a stairway, which provides access to a terrace, verandah or other type of associated development specified in cl 2.55.

34 I also do not accept that the requirement in s 76(2) of the EPA Act and cl 1.3(b) of the SEPP, that development identified as exempt development is of a class or description that is of minimal environmental impact, disentitles a stairway from being a pathway within cl 2.55. A stairway is not inherently or always not of minimal environmental impact. To the contrary, in certain situations, a stairway might have less environmental impact than other means of access such as ramps and paths at ground level. For example, on a sloping site, an elevated stairway straight down the fall line of the slope might have a lesser footprint and involve less earthworks than longer ramps and paths at ground level which need to zig zag up a slope and involve cut and fill.

35 I also do not agree that a pathway in cl 2.55 necessarily involves the notion of being secondary or subordinate to the associated development. It is true that one of the development standards in cl 2.56 requires the pathway in cl 2.55 not to have an area more than 15% of the floor area of the associated development. However, this is a development standard of the development specified in cl 2.55 and is not a definitional element of that specified development. In any event, I do not consider that the construction or height of the stairway in this case causes the stairway not to be secondary or subordinate to the pool terrace and front verandah to which the stairway provides access.

36 I find, therefore, that the stairway is a pathway under cl 2.55.

Is the pathway "associated with" a terrace or verandah?

37 The Council submits that the stairway is not "associated with" the front verandah of the residence at 86 Wolseley Road or the pool terrace on the common property for two reasons. First, the Council submits that the association required by cl 2.55 is that the pathway and the terrace, verandah or other type of associated development in cl 2.55 needs to be joined or united for a common purpose. In this case, the Council submits the stairway needs to be joined with the development with which it is associated in the function of providing access from the residence to the pool terrace or front verandah. The Council's submission is that the newly constructed stairway does not do this.

38 Secondly, the Council submits the stairway does not directly connect with the pool terrace or front verandah of 86 Wolseley Road as there is an existing pathway, including stairs, in between the end of the new stairway and the pool terrace and front verandah. That existing pathway provides access between the residence, front verandah and pool terrace.

39 Mrs Sahade submits that the notion in cl 2.55 of being associated with, requires neither a joining in common purpose between the pathway and the associated development nor a limitation that the pathway provide access to the associated development only from the residence.

40 Mrs Sahade also submits that the fact that the new stairway does not connect to the pool terrace and front verandah does not cause the stairway to be disassociated from the pool terrace and front verandah. The reason for the stairway not connecting to the pool terrace and front verandah is that there is already a pathway, including stairs, from the front verandah to the pool terrace and that pathway extends for a short distance further up the northern side of the residential flat building at 84 Wolseley Road. There was, however, a missing link from the end of this path to the start of the garage forecourt and the garages and studios. The new stairway fills in this missing link and enables access along the northern side of the property from the garage forecourt to the existing path, pool terrace and front verandah of 86 Wolseley Road. The stairway now provides the most direct route and is in a straight line from the garage and studio at the upper level to the front verandah of the residence at the lower level of 86 Wolseley Road.

41 Again, I agree with Mrs Sahade's submissions and reject the Council's submissions. The stairway provides direct access between the garage forecourt, and the garage and studio of 86 Wolseley Road, at the upper level, the pool terrace on the common property at the mid level, and the front verandah of the residence of 86 Wolseley Road at the lower level.

42 The fact that the stairway connects to an existing pathway past the pool terrace and front verandah does not negate this conclusion. The existing pathway also provides access between the front verandah and pool terrace. It is associated with that front verandah and pool terrace. The new stairway extends the existing pathway and provides another route of access between the front verandah and pool terrace and the garage forecourt, garage and studio of 86 Wolseley Road. It too is associated with the front verandah and pool terrace by providing this access. The existing pathway and new stairway together now provide a continuous and direct pathway enabling access between the residence and front verandah at the lower level, the pool terrace at the mid level and the garage forecourt, garage and studio at the upper level.

43 I also agree with Mrs Sahade's submission that cl 2.55 does not require that a pathway, in order to be associated with a terrace, verandah or other type of associated development in cl 2.55, must only be between the main residential building (such as a dwelling house) and the relevant associated development. Clause 2.55 does not preclude a pathway joining other parts of the land, and buildings and structures on it, with the associated development.

44 Finally, the fact that there is an existing pathway on the southern side of the residential flat building allowing access from the garage forecourt to the pool terrace and around to the front verandah of the residence at 86 Wolseley Road does not negate the conclusion that the new stairway and the existing pathway on the northern side provide access to the pool terrace and front verandah. There can be more than one pathway associated with a terrace, verandah or other type of associated development under cl 2.55.

45 I find, therefore, that the stairway is associated with the front verandah and pool terrace, both being types of associated development in cl 2.55.

Does the stairway meet the development standards?

46 The parties agree that the stairway meets the development standards specified in paragraphs (a), (b) and (c) of cl 2.56. The Council originally contended that the stairway did not meet the development standard in para (d) of cl 2.56 that the pathway must not have an area more than 15% of the floor area of the associated development. However, the stairway was modified in December 2011 so as to be narrower, which reduced its area. A surveyor called by Mrs Sahade, Mr Emery, calculated the area of the modified stairway to be 8.7 square metres. The parties' planning experts, Mr Moody for the Council and Mr George for Mrs Sahade, agreed that the area of the pool terrace (excluding the pool) is 63.53 square metres and the area of the front verandah of the residence at 86 Wolseley Road is 7.12 square metres. Hence, the new stairway is 13.7% of the floor area of the pool terrace and 12.3% of the combined floor area of the pool terrace and front verandah (70.65 square metres). Both of these percentages are less than the 15% stipulated in cl 2.56(d).

47 Accordingly, the stairway as it now stands meets the development standards in cl 2.56.

Does the stairway comply with the requirements for exempt development?

48 The Council contends that the stairway does not comply with the requirement in cl 1.16(3)(b) of the SEPP as its construction involves the felling (which is removal or pruning) of the pencil pine screen which was established in accordance with the development consent DA 558/98. The Council contends that:

(a) the felling of the pencil pine screen arose as a direct result of the construction of the original stairway in March 2011;

(b) the modification of the stairway in December 2011 by a reduction in the width of the treads did not constitute the carrying out of different development to the original stairway, but rather the original and modified stairway comprised the same project and same development for the purposes of cl 1.16(3)(b) of the SEPP; and

(c) the construction of a planter box and planting of a row of pencil pines in it did not remedy the breach of development consent DA 558/98 caused by the felling of the pencil pine screen and did not retrospectively satisfy cl 1.16(3)(b) of the SEPP.

49 Mrs Sahade concedes that the construction of the original stairway required removal of the pencil pine screen and hence would not have been exempt development by reason of cl 1.16(3)(b) of the SEPP. However, Mrs Sahade submits that upon modification of the original stairway by construction of a planter box and the planting of a row of pencil pines in the planter box, the requirements in development consent DA 558/98 and plan DA-02 for pencil pine screen planting became satisfied. The modified stairway now alongside the reinstated pencil pine screen accommodates the pencil pine screen and does not require its removal. Accordingly, Mrs Sahade submits that cl 1.16(3)(b) is no longer applicable.

50 I agree with the Council's submissions and reject Mrs Sahade's submissions.

51 The pencil pine screen that existed prior to Mrs Sahade arranging for it to be cut down in March 2011 was planted in the location specified by, and was otherwise in accordance with, plan DA-02 and development consent DA 558/98. The location of both the original stairway and the modified stairway almost wholly overlaps with the location of the pencil pine screen originally planted. As a consequence, neither the original stairway nor the modified stairway could be constructed without cutting down this pencil pine screen. Hence, even if Mrs Sahade had proceeded directly to construct the modified stairway, such development would have involved the removal or pruning of the trees comprising the pencil pine screen.

52 Mrs Sahade's argument that the construction of the modified stairway included reinstatement of a pencil pine screen alongside the modified stairway and, hence, the modified stairway does not involve removal of this reinstated pencil pine screen, is not an answer to this conclusion.

53 First, the reinstated pencil pine screen is not in the same location as, but rather is located further south than, the original pencil pine screen. The new pencil pine screen was intended to replace and not to supplement the original pencil pine screen. The new location was required because the stairway, both in its original and modified forms, was to be constructed over the location of the original pencil pine screen. Hence, installation of the new pencil pine screen, which was the motivation for and a necessary component of the modification of the stairway, still involved the removal or pruning of trees, being the felling of the original pencil pine screen.

54 Secondly, the new pencil pine screen is not generally in accordance with plan DA-02 and hence development consent DA 558/98. There are a number of material differences: the new pencil pine screen is located further south than shown on plan DA-02; the new pencil pines are planted in a planter box not shown on plan DA-02; the location of each pencil pine in the screen does not correspond with the location of each pine shown on plan DA-02; the new planter box encroaches upon, and reduces the width of, the pathway to the landscaped courtyard from that shown on plan DA-02; and the new pencil pine screen has the modified stairway constructed to its north over the location of the original pencil pine screen, where plan DA-02 showed no structures other than the existing inclinator further to the north.

55 As a consequence of these differences, the new pencil pine screen does not, in fact, reinstate the pencil pine screen required by plan DA-02 and development consent DA 558/98. It is a different pencil pine screen.

56 Hence, it is not to the point to say, as Mrs Sahade submitted, that construction of the modified stairway alongside the new pencil pine screen accommodates the screen and does not require its removal. The pencil pine screen that is not required to be removed by the modified stairway is not the pencil pine screen required to be planted, and which in fact was planted, in accordance with plan DA-02 and development consent DA 558/98.

57 Thirdly, it is artificial to view the construction of the modified stairway, a new planter box and new pencil pine screen as a wholly unrelated and different development to the original stairway. The two stairways were intended to provided the same access; they are in the same location; they are of the same length and height; they have an upper and lower landing at the same locations and heights; they extend northwards to the same line clear of the inclinator track; and they are constructed of the same timber material and indeed have the same actual timber pieces, although the modified stairway has had the timber steps used in the original stairway cut so as to reduce the width (to allow construction of the planter box and planting in it of the pencil pine screen). The modified stairway is, in fact, the original stairway with some modifications, not a wholly new and different stairway.

58 Furthermore, the modification of the original stairway only occurred in an attempt by Mrs Sahade to remedy the breach of development consent DA 558/98 that had occurred by removing the original pencil pine screen. Mr Sahade said in his affidavit evidence that he had been unaware of the development consent at the time of construction of the original stairway. Upon disclosure of the consent during the course of these proceedings, Mr and Mrs Sahade "cut back the timber staircase making it slightly narrower and replanted the screen of pencil pine trees". This shows that the modification of the original stairway by narrowing it and planting a new pencil pine screen was simply responsive to the disclosure that construction of the original stairway had breached development consent DA 558/98 and was a means of attempting to ensure that the already constructed stairway could remain in a modified form.

59 Accordingly, the stairway as it exists today does not comply with the requirement of cl 1.16(3)(b) of the SEPP because it involved the removal or pruning of trees, being the original pencil pine screen, that required development consent for their removal or pruning by reason of that pencil pine screen being required to be planted and maintained by plan DA-02, Condition 1 of development consent DA 558/98 and s 76A(1)(b) of the EPA Act.

The stairway is not exempt development and is in breach of the EPA Act

60 Because the stairway does not comply with the requirements in cl 1.16(3)(b) of the SEPP for exempt development, the stairway is not exempt under cl 1.15 for the purposes of the SEPP or s 76(2) of the EPA Act. If the stairway is not exempt development, it is not exempt from the requirement under the LEP and s 76A(1)(a) of the EPA Act for development consent.

61 Mrs Sahade did not obtain development consent before carrying out the development of the stairway. Carrying out development that requires development consent under an environmental planning instrument without first obtaining development consent is a breach of s 76A(1) of the EPA Act.

The appropriate orders to remedy the breach

62 The Council seeks a declaration that the stairway constructed by Mrs Sahade is in breach of the EPA Act. Mrs Sahade does not oppose the making of a declaration, if the Court finds a breach to have occurred.

63 The Council also seeks a mandatory injunction ordering Mrs Sahade to remove the stairway. The Council submits that such an order is necessary to remedy the breach of the EPA Act caused by construction of the stairway without prior development consent.

64 The Council submits that the breach is not a purely technical breach or one which was unnoticeable other than to a person well versed in planning and environmental law: Warringah Shire Council v Sedevcic (1987) 10 NSWLR 335 at 339. To the contrary, the Council submits the construction and continued use of the stairway have unacceptable environmental impacts. The Council read affidavit evidence of the residents of Apartment 2, 84 Wolseley Road, Mr and Mrs Bischoff, and of a town planner, Mr Moody, describing the environmental impacts of the stairway, including: increased overlooking and reduction in privacy; reduction in amenity by removal of the previous pencil pine screen, which is not offset by the new pencil pine screen; noise from walking on the timber stairs and from users' voices; and increased difficulty of using the pathway from the landscaped courtyard by reason of the encroachment of the planter box into the pathway.

65 The Council submits that the proper process for evaluating these environmental impacts is for Mrs Sahade to lodge a development application seeking development consent for construction and use of the stairway and for the Council as the relevant consent authority to consider such development application. The Court should not preclude this proper process or substitute itself as the consent authority, by exercising its discretion not to grant injunctive relief.

66 The Council submits that the injunction sought is necessary to enforce the public duty imposed by the EPA Act not to carry out development which requires development consent without first obtaining such consent. Enforcing this public duty upholds the public interest which exists in the orderly development and use of the environment. Provisions of planning and environmental laws regulating the carrying out of development should be upheld. Unless this is done, private advantage may be won by a particular individual which others cannot enjoy and damage done to the environment which is the purpose of the orderly enforcement of planning and environmental laws to avoid: Sedevcic at [339]-[340].

67 The Council noted that it, and not the neighbours, has made the application for enforcement of the law and hence the Court should be less likely to deny injunctive relief: Sedevcic at [340].

68 The Council submits that the stairway in this case can be removed readily and without great cost or inconvenience: Sedevcic at [340].

69 Mrs Sahade opposed an order requiring removal of the stairway. She read an affidavit of Mr Sahade and tendered an expert report of a town planner, Mr George, contending that the stairway causes minimal environmental impact and that it would cause great inconvenience to Mrs Sahade and her family if the stairway were to be demolished. Mrs Sahade also submits that the Council's arguments as to breach are academic in nature.

70 I agree with the Council's submissions and reject Mrs Sahade's submissions.

71 Mrs Sahade has won private advantage for herself and her family by constructing the stairway, which involved removing trees comprising the pencil pine screen, without first applying for, and obtaining, development consent under the LEP and the EPA Act. The requirement for prior development consent enables, amongst other objectives, environmental impact assessment of proposed development and orderly development and use of the environment. Mrs Sahade's action undermines these legislative purposes.

72 An injunction ordering the removal of the stairway would remedy the breach of the LEP and the EPA Act by putting Mrs Sahade back in the position she should have been in of having to make a development application seeking development consent to construct the stairway. Mrs Sahade can support any such development application with a statement of the environmental impacts of the proposed stairway. The development application and supporting statement can be considered, in the usual way, under the LEP and the EPA Act by the relevant consent authority for such application, the Council.

73 The breach of the EPA Act is not merely technical or without environmental impact. The LEP is clear in requiring development consent to carry out development for the purpose of a dwelling house, which is the purpose for which Mrs Sahade constructed the stairway to her residence. The provisions exempting certain types of development from the need for development consent in the SEPP include a clear requirement that the carrying out of exempt development not involve the removal or pruning of trees or other vegetation that requires development consent. In this case, the construction of both the original and modified stairway involved removal of trees that formed the pencil pine screen. This particular requirement of exempt development is part of a suite of provisions in the SEPP for exempt development intended to ensure that development is of minimal environmental impact. The requirement is not merely technical or, as Mrs Sahade submits, academic in nature. It serves to ensure orderly and environmentally acceptable development and use of the environment.

74 I do not accept the evidence of Mr Sahade and Mr George that the environmental impacts of the construction and use of the stairway are of such small magnitude as not to make it worthwhile to require the removal of the stairway and the making of a development application for consent to reconstruct the stairway. In my opinion, real issues have been raised by the Council's evidence as to the environmental impacts of the stairway. The degree and acceptability of these impacts, and the balancing of these impacts against the benefits to Mrs Sahade and her family of the stairway, should properly be evaluated by the Council as the relevant consent authority when it considers any development application Mrs Sahade might choose to make to re-construct the stairway in the future.

75 I am, therefore, of the view that Mrs Sahade should be ordered to remove the stairway that she was responsible for constructing in breach of the EPA Act.

76 During the course of the hearing, Mrs Sahade called evidence from a surveyor, Mr Emery, who opined that the stairway had in fact been constructed on common property and not on Mrs Sahade's lot, Lot 3. This result occurred because of the fact that the garden area of Lot 3 is in fact a stratum with upper and lower boundaries being fixed by reference to the floor area of the residence of 86 Wolseley Road. Because the land rises to the east, at a certain point to the east of the residence, the ground level becomes higher than the upper boundary of the stratum of Lot 3's garden area. Above and to the east of this point, the ground surface becomes common property of the strata plan. A stairway has been constructed in this area where the ground surface is common property.

77 According to Mr Emery's expert evidence, therefore, Mrs Sahade has constructed the stairway on common property and not on her land, Lot 3. This would also mean that if the Court were to order Mrs Sahade to remove the stairway, Mrs Sahade would need to seek the permission of the owners' corporation of the strata plan to enter upon the common property and to undertake the works required to remove the stairway.

78 After some discussion between the parties and the Court at the hearing, I determined that I should adjourn the further hearing of the proceedings to afford the owners' corporation of the strata plan the opportunity to be heard, including on the question of whether the Court should make an order that Mrs Sahade remove the stairway. The hearing was adjourned to 18 April 2012 for this purpose.

79 On 18 April 2012, the Council advised the Court that the owners' corporation of the strata plan had been notified as directed, had called a meeting of lot owners, and had resolved not to apply to intervene or be heard in the proceedings. The Council tendered the minutes of an extraordinary general meeting of the owners' corporation on 10 April 2012 which included the following resolution:

"(a)The letter to the Owners Corporation from Norton Rose dated 20 March 2012 concerning the proceedings between Woollahra Municipal Council and Rita Sahade was tabled.

The Owners Corporation does not wish to be heard in the proceedings, but wishes to record, for such assistance as it may provide to the Court, that:

(i) the Owners Corporation requires the timber staircase erected by Mr and Mrs Sahade to be demolished and removed from site;

(ii) the Owners Corporation requires Mr and Mrs Sahade to reinstate the landscaped screen and the masonry wall consistent with the 1999 development consent;

(iii) the timber staircase was built without prior notice to the Owners Corporation, and without any consent of the Owners Corporation;

(iv) the destruction of landscaping and the masonry wall has affected the privacy and the peaceful enjoyment of Lots 1 and 2;

(v) the use of the staircase and the lighting of the staircase interfere with the peaceful enjoyment of Lots 1 and 2, and the staircase impedes Mrs Bischoff's access to the swimming pool."

80 On 18 April 2012, Mrs Sahade also applied by notice of motion for leave of the Court to re-open her case so as to be able to tender the expert report of an arborist, Sir William Home, as to the health and likely growth of the newly planted pencil pines. The Council objected to leave being granted to re-open the evidence. I determined that I should grant leave to Mrs Sahade to re-open her case and I admitted the arborist's report into evidence.

81 The arborist's report concluded that the new conifers have adequate soil depth and volume to allow future growth and, if the recommended measures of use of drip irrigation in drier periods and installation of an extra drip line under the stairway, topping up of soil in the garden bed where it settles, application of mulch and organic fertiliser, and application of beneficial fungi and bacteria are undertaken, the new conifers should prove to be a good screening plant in the short term and be part of the long term landscape. Because of the late receipt of this report, the Council was not in a position to call rebutting evidence. However, the Council did cross-examine the arborist as to factors which might inhibit the growth of the conifers in the future.

82 Even if this evidence as to the health and likely growth of the newly planted pencil pines were to be accepted, it does not cause me to change my conclusion that, in the exercise of my discretion, injunctive relief should be granted. The factors I have found persuasive in support of granting, rather than denying, injunctive relief to remedy the proven breach remain.

83 The arborist's conclusion that the new pencil pines will prove to be a good screening plant may ameliorate some impacts from overlooking from those parts of the stairway where the trees will form an effective screen. However, the new pencil pines will not prevent all environmental impacts. There may still be overlooking from other parts of the stairway, such as from the upper landing. The new pencil pines are located closer to the bedroom and dining room of Apartment 2 than the original pencil pines. There is also the issue of whether the new pencil pine screen is inferior in terms of screening overlooking and in protecting the privacy and amenity of Apartment 2 compared to the original pencil pine screen. The new pencil pines, of course, also do not mitigate the impacts of noise from use of the stairway and users' voices. Hence, I remain of the view that there are real issues as to the environmental impacts of the stairway and the effectiveness and acceptability of the mitigation measures, including the new pencil pine screen.

84 I also remain of the view that the environmental impacts of the construction and use of the stairway, and the degree to which the newly planted pencil pines mitigate privacy and amenity impacts, should be considered by the Council as the relevant consent authority when it considers and determines any development application Mrs Sahade might choose to make to re-construct the stairway and any pencil pine screen in the future. I do not consider I should, in the exercise of discretion to grant or decline relief to remedy the proven breach of the EPA Act, substitute my consideration and determination of the acceptability of the environmental impacts and mitigation measures for those of the proper consent authority arrived at in accordance with the proper process for making and considering a development application.

85 Furthermore, I consider it is still appropriate to order Mrs Sahade to remove the stairway, even if it be located on common property and not on her lot, Lot 3. The Court has power to order a person who has breached the EPA Act to remedy the breach. Mrs Sahade committed the breach by constructing the stairway on the common property without first obtaining the required development consent. The Court may order her to remedy that breach by removing the stairway from the common property.

86 It is a matter for Mrs Sahade to ensure that she obtains any necessary permission of the owners' corporation to remove the stairway so as to comply with the court order. I note that the recent resolution of the owners' corporation requires Mrs Sahade to demolish and remove the stairway and reinstate the original pencil pine screen and masonry wall consistent with development consent DA 558/98. Presumably, therefore, Mrs Sahade should not have difficulty in obtaining permission to undertake these works. However, for caution, I will allow a longer period of time than might otherwise be necessary to remove the stairway so as to permit Mrs Sahade to apply to the owners' corporation for permission to undertake the works on common property. Any risk that Mrs Sahade might be prevented from complying with the court order by the owners' corporation delaying or refusing permission to carry out the required works on the common property can be addressed by reserving liberty for the parties to apply to vary the court order.

87 The parties have requested that the Court reserve the question of the costs of the proceedings to enable the parties to consider the judgment before addressing that question. I am prepared to do so.

Orders made

88 The Court:

(1) Declares that the timber stairway and associated works, including the planter box ("the Stairway"), constructed by or for the respondent, Rita Sahade, within Strata Plan 62022 and upon the land known as 84-86 Wolseley Road, Point Piper, has been constructed in breach of s 76A of the Environmental Planning and Assessment Act 1979.

(2) Orders the respondent to demolish the Stairway within 28 days of the date of these orders.

(3) Grants liberty to the parties to apply to vary, replace or supplement Order 2 on sufficient cause being shown.

(4) Reserves the question of the costs of the proceedings.

Amendments

07 June 2012 - Inheritently changed to inherently
Amended paragraphs: [34]

Decision last updated: 07 June 2012