Posted on August 30, 2020 by Stuart Simington and 6

Exempt development creates practical problems for enforcement

The Land and Environment Court (LEC) was recently required to consider whether certain work was exempt as ‘minor’ works under the State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 (Codes SEPP).  The issue arose in the course of considering a contempt of court charge that a developer had failed to comply with his undertaking given to the Court not to carry out further work except exempt development. It highlights some practical problems that can arise in civil enforcement proceedings having regard to the definitions of the ‘minor’ works categories of exempt development.

Background

In August 2019, Canada Bay City Council commenced civil enforcement proceedings against Joseph Frangieh seeking demolition of unlawful building works. It also sought urgent orders to restrain the building works to the existing dwelling house at Concord (Dwelling) pending the final hearing.

When the application for the interim orders came before the LEC, Mr Frangieh (through a legal representative) gave an undertaking that he would not carry out any further building works to the Dwelling prior the final hearing except:

“(a) installing any temporary weather proofing measures necessary to prevent damage to the building work carried out to date and/or temporary measures necessary to prevent unauthorised access to those buildings;

(b) any works exempt pursuant to State Environmental Planning Policy (Exempt and Complying Development Codes) 2008.” (Undertaking)

When building works were observed on the site, the Council charged Mr Frangieh with contempt of court in that:

“… the installation of cladding to the parapet, columns and façade features to the front of the Dwelling (in continuation of external alterations and additions to the Dwelling that have been carried out in circumstances where Canada Bay Local Environmental Plan 2013 provided that such development may not be carried out except with development consent, and no such consent had been obtained and was in force)…”

In hearing the charge of contempt, the Court accepted that:

• the building works were carried out after the Undertaking was given;
• Mr Frangieh was aware of the Undertaking and responsible for the building works; and
• the Undertaking was sufficiently clear and unambiguous.

The issue was whether the Council could prove beyond a reasonable doubt that the building works to the dwelling could be characterised as “exempt” pursuant to the Codes SEPP. Particularly, Council’s allegation required demonstration that the building works were part of the broader unauthorised alterations and additions.

The contempt proceedings also concerned an allegation that works to a rear studio breached the Undertaking. For present purposes, it is sufficient to consider the works to the dwelling only. 

Was it Exempt Development?

The carrying out of exempt development does not require development consent under s 1.6(1)(a) of the Environmental Planning and Assessment Act 1979.

The Codes SEPP, under subdivisions 26 and 27 in Part 2 of the Exempt Development Code, provides that certain “minor building alterations” to the internal and external areas of a building may be exempt development, provided they meet certain criteria. 

The Council argued that the works that were the subject of the contempt charge, although limited to cladding, were a “continuation” of otherwise unlawful building works which were not exempt development. It also argued that the relevant works were a “continuation” of work by looking at the whole of the development rather than the piecemeal approach focused on the cladding in isolation.  

In its decision, the Court did not accept the Council’s “continuation” argument. Rather, it was held that the principles which required the whole of the development to be considered were only appropriate when seeking to characterise a land use. However, the Court was sympathetic to the Council’s argument in that it would be unusual and unintended if a developer could, when faced with an urgent application to stop works, proffer an undertaking (with or without an exempt development “carve out”) but continue substantial building works as exempt development. 

The Court was “concerned” that the building works that were part of the charge were not “minor” in the sense referred to in  subdivisions 26 and 27 of the Codes SEPP but not persuaded to the relevant standard of proof, which was the criminal standard of ‘beyond reasonable doubt’.  

Therefore the Court was not also satisfied beyond reasonable doubt that the carrying out of the cladding to the dwelling was in breach of the undertaking.

The Lessons

Council’s grievance was that the “continuation” of works essentially led to the building works to the Dwelling being completed. Such a situation could potentially see final judgment in the form of demolition orders being frustrated.

The lesson here is to ensure that, when seeking to obtain interim relief for unlawful building works, all works which may frustrate the demolition order be prevented from continuing by the interim injunction. Further, if a developer proffers an undertaking not to carry out building except where it is exempt, one will need carefully consider whether it is appropriate to accept such an undertaking.

There is an additional implication. Notwithstanding the use of the word “minor” in the description of exempt works in subdivisions 26 and 27 in Part 2 of the Exempt Development Code, considerable building works may still be able to be carried out. This can potentially complicate investigation of unlawful building works where a considerable component of the works might be able to be able to be characterised as exempt. 

If you would like to discuss the issues raised in this post, please contact James Fan on 8235 9706 or Stuart Simington on 8235 9704.