‘Reckless and cavalier': The inner west dream home facing the wrecking ball
In 2023, Rabi Malass said the court battle had crippled him financially and his plumbing business was in voluntary administration.
'I have spent $700,000 in legal fees associated with my home. I am now facing bankruptcy and I can no longer afford legal representation,' Malass said.
Despite the court making demolition orders last year, the house still stands as legal wrangling continues. Strathfield Council is also fighting to recoup hundreds of thousands of dollars awarded in legal costs.
The council has thrown its weight behind mounting calls for the state government to intervene to tighten the framework for issuing BICS.
Hot property
Rabi Malass' woes can be traced back to 2017, when his wife, Sarah Malass, snapped up a generous block in one of Strathfield's most sought-after pockets for $2.8 million.
With a DA already signed off for a knock down and rebuild of the Boden Avenue residence, the stage was set for the couple to build their dream home.
But the approved plans weren't quite what the couple had envisaged. They alleged they engaged an architect to redesign the facade and layout, and secure council approval for the changes.
By 2020, as Sydney was plunged into COVID lockdown, the couple were yet to receive council's sign-off.
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Malass was growing increasingly frustrated. He said he needed to get on with construction to provide work for his furloughed staff during the COVID lockdowns, and the council had become 'uncontactable' despite multiple calls.
Malass told the court his architect assured him council was not expected to object to the 'minor changes' he was requesting, but cautioned he should wait for the approvals – otherwise he might need a building information certificate.
In a decision that would prove disastrous, Malass ploughed ahead with construction. He told the court he was shocked to later discover his architect had never applied to modify the development approval at all.
Growing pains
By September 2020, council leapt into action following a flurry of complaints from neighbours.
The council issued a stop-work order, citing an 'extensive amount of unauthorised development' at the three-quarters finished house.
The warring parties have spent the five years since then at loggerheads in the Land and Environment Court as the council seeks to have the home demolished and the Malass family fight desperately to keep it standing.
Early in the proceedings, two judges both made orders that construction must cease until the dispute was resolved, apart from limited works to make the home waterproof and physically secure.
But a council inspector told the court he started to suspect something was amiss when he spied a skip bin 'filled to the rim with building materials' at the property. On another occasion, he spotted a worker dressed in high-vis gear, who hastily retreated into the house when the pair made eye contact.
The plot thickened as a neighbour claimed they saw workers coming in and out of the property almost daily, along with the sound of drilling, with dust and smoke emanating from the home.
Between June 2021 and September 2022, the council inspected the property on 10 occasions, observing 'significant building activity' occurring.
The workers were productive, lining the butler's pantry, installing black marble tiles in the bathroom, a bathtub in the steam room, and parquetry in the cinema room.
Council's unwelcome visits riled Rabi Malass, who set up CCTV cameras to show that inspectors were trespassing on his land.
Sarah Malass was charged with and pleaded guilty to multiple contempt of court charges, including continuing the works even after the contempt charges had been laid.
Council complained to the court that the contempt resulted in the home being completely finished and the Malass family moving in unlawfully. The family obtained a 'private advantage' not enjoyed by people who complied with the law, the council argued.
Ahead of sentencing, the court ruled there should be a full inspection of the home.
That wouldn't prove a straightforward undertaking. When council inspectors arrived at the agreed time, Rabi Malass was otherwise engaged on the phone.
As a result, they had less than 20 minutes to inspect the property, leaving the job 'rushed, incomplete and not carried out properly'.
Rabi Malass protested that the council inspectors had taken 'hundreds of photos', and one of them was wearing a body worn camera (the council maintained it was for safety and not collection of evidence).
Sarah Malass told the court she had a low level of culpability and her conduct should not be viewed as flouting the court's authority, but a 'failure to exercise control' over construction at the site.
The then-34-year-old also said she had a limited understanding of works allowed to be undertaken.
In November 2022, Justice John Robson fined Sarah Malass $20,000 for contempt.
Robson accepted she was relatively unsophisticated in relation to building matters, had issues with anxiety, had pleaded guilty and apologised.
However, he found the contempt was objectively serious, there was not any appropriate reason given for it, and Malass had experienced legal representation acting for her.
'Sarah Malass' conduct was wilful, rather than inadvertent or technical,' he said.
Robson also rejected suggestions Malass lacked the means to pay a fine because she was unemployed and her husband's business had suffered a downturn, noting she now owned a substantial three-storey residence.
'The case came to a head in March last year, as Justice Nicola Pain found that Sarah Malass had breached the Environmental Planning and Assessment Act by failing to comply with the development consent, construction certificate, stop-work order and a compliance order.
'The respondent and her family are living without an occupation certificate in an unlawful dwelling that is substantially larger than what was approved,' Pain noted.
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Among the transgressions identified by council were the additions of a spa room, playroom, parking space, gym and cool room, along with a building footprint and height larger than what was approved and a landscaped area of four per cent instead of 43 per cent.
Another sticking point was the basement, which the court agreed amounted to an unapproved third storey because it sat well above the ground floors of other buildings on the street.
'The respondent has undermined orderly development being carried out in accordance with the EPA Act and gained a private advantage in doing so, with little to no regard for the neighbours of the property and the local area generally,' Pain said.
Pain made orders for the family to vacate the property and demolish the unlawful works, requiring compliance with the original development approval.
'Whether I should make orders requiring rebuilding will be discussed with the parties,' Pain said.
Pain warned that the demolition and possible rebuilding work would be substantial and costly.
Sarah Malass was also ordered to pay council's costs of more than $157,000.
The Malass family is now pursuing a last-ditch bid for a solution that would salvage some of the home.
Sarah Malass has lodged a new development application and is seeking a building information certificate to allow the family use of the existing home, partial demolition of its first floor, and some construction works.
The applications were knocked back by the Strathfield Local Planning Panel in July last year, in a decision that is now under appeal before the Land and Environment Court.
'That appeal is ongoing and as such council is not able to comment further,' a spokeswoman for Strathfield Council said.
Last month, the court dismissed a motion by Strathfield Council to have the case thrown out as an abuse of process because the fresh applications closely resemble ones that were already made in 2020 and were rejected by both the council and the court.
The spokeswoman for Strathfield Council said it was continuing to pursue its costs and seek compliance with orders made by Pain in March last year.
'Council acknowledges that there may be instances where a Building Information Certificate (BIC) may be obtained as a mechanism to regularise unauthorised building works,' she said.
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'Having said that, it is Council's clear position that persons carrying out development should at all times do so in accordance with a validly issued approval.'
She said the council was willing to work with the state government to undertake reforms that would 'enhance mechanisms' available to them to deal with unauthorised work and maintain the community's confidence that planning laws are being adhered to.
The Malass family did not respond to the Herald's request for comment.
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