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On a crisp winter’s morning, the concrete-faced mansion in Sydney’s inner west looks impeccably well maintained – and that’s the problem. It should be a pile of rubble.
Two years after the NSW Land and Environment Court ordered Sarah Malass to vacate and demolish her unlawfully built Strathfield trophy home, it remains as if the orders were never issued at all.
The home stands pristine on Boden Avenue, with comings and goings day and night, according to the private detectives sent to covertly surveil it.
Now Strathfield Council has told its recalcitrant ratepayer: tear the building down or go to jail.
In a dramatic escalation of a six-year legal battle over the home, the council is seeking Malass’ imprisonment should she continue to flout the demolition orders and live unlawfully in the house with her family.
The council is also seeking the court’s permission to take matters into its own hands and carry out the demolition work itself, should Malass fail to do so.
The 38-year-old, who has told the court she is unemployed, would be saddled with the bill.
“NSW police may be present at the subject property during the carrying out of this order,” the council said in court documents obtained by this masthead.
The council has charged Malass with contempt of court, and the matter is set to go to a hearing before the Land and Environment Court on Thursday.
The court will also decide on a notice of motion filed by the council, seeking a prison sentence, lump sum fine and a continuing fine for each day Malass resides in the home with her husband, Rabi Malass, and their three school-age children.
The council said the prison sentence could be wholly suspended if Malass abides by the court’s orders within 28 days.
Malass has pleaded not guilty to the contempt charges. She told the court last July it would cost $10 million to demolish the home and rebuild it according to the plans originally approved by council.
To attempt to do so would be financially ruinous for her family, Malass said, because her husband was bankrupt, and the pair were both unemployed.
However, Land and Environment Court Judge Nicola Pain responded that it was clear that Sarah Malass had not given a “complete picture” of the couple’s financials, amid revelations a company she owned and controlled was the cash buyer of a $6.8 million Southern Highlands estate and was meeting her weekly mortgage repayments of $43,312.
The case illustrates the challenges still facing councils across the state 12 months after a Herald investigation revealed growing numbers of Sydney home owners were building unlawful works and then protecting them from demolition via Building Information Certificates (BICs).
Local Government NSW (LGNSW), the peak body representing the state’s 128 councils, has complained about the practice, which has been described by neighbours as building and then “seeking forgiveness later”.
An LGNSW spokeswoman welcomed the government’s recent introduction of the Building (Approvals and Practitioners) Bill, but said it needed to do more to stop BICs being used to retrospectively validate building work carried out unlawfully.
“We will continue to advocate for a commitment from the NSW government to review the BIC framework and reduce the misuse of these certificates for ‘approving’ unauthorised works,” the spokeswoman said.
NSW Planning Minister Paul Scully said the Minns government was delivering the biggest overhaul of the planning and building system in years, with the reforms focused on lifting standards and improving confidence while also making it easier for small modifications and strengthening accountabilities.
“Building Information Certificates are not a blanket approval for unlawful building work and should never be used to bypass development approvals,” he said.
“Councils already retain the power to refuse applications where works are unsafe, non-compliant or otherwise inappropriate.”
However, councils that refuse to issue BICs can find themselves mired in long and costly litigation.
Such is the case for Strathfield Council, which tried to draw a line in the sand after uncovering an “extensive amount of unauthorised development” at Malass’ knockdown-rebuild project in 2020.
In early 2024, Pain handed down a damning judgment, finding Sarah Malass had breached the law by failing to comply with the original development consent, construction certificate, a 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 said at the time.
Among the transgressions identified by council were the additions of a spa room, playroom, parking space, gym and cool room, along with a basement amounting to an unapproved third storey.
Pain ordered the family to vacate the property within 10 months and demolish the unlawful works within 12 months.
As those deadlines loomed last March, Malass asked for an extension of time to allow her to pursue a new development application and BIC, in an attempt to salvage some of the home from demolition.
Malass told the court the couple were in dire financial straits, relying on the generosity of family and friends and selling off possessions to stay afloat.
She added that she only had a passive role in the construction of the house. Malass said her husband, Rabi, a bankrupt at the time whose plumbing business was in liquidation, had taken responsibility for the works.
The council told the court that Malass’ claim it would cost $10 million to demolish and rebuild her home was not supported by any documentation.
It warned that if she were to continue to enjoy the benefit of the unauthorised works, as she had for over four years, it would diminish the relevance of planning laws.
During cross-examination, Malass was questioned about a company of which she was the sole director and shareholder, called SKJM Consortium Pty Ltd, which owned a $6.8 million Berrima property purchased in 2023, along with properties at Rockdale and Gosford.
Malass stood by her evidence that her family was in a precarious financial position.
She said her husband attended to the technicalities of the company and she understood there were borrowings against the Berrima property, even though there was no mortgage on the title.
In a judgment last July, Pain refused Malass’ request for more time to stay in the home, finding she had failed to provide any adequate reason to justify it.
“There is very little documentation to support the general statements made about her poor financial situation,” Pain said.
Pain also noted Malass’ previous unsuccessful attempt to obtain a development consent and BIC.
In September, the council dispatched private investigators from The Huxley Hill Group to see if the court’s orders had been complied with.
They photographed the home still standing and multiple people coming and going from it over a week-long period, although their identities were not confirmed.
A neighbour, who spoke on the condition of anonymity due to ongoing neighbourhood tensions surrounding the development, said they were grateful the council had not buckled under the pressure of the long-running case.
“I admire them for sticking to their principles in this case, despite the length of time it has taken for a decision to be reached,” the neighbour said.
The neighbour supported calls for the tightening of the rules around BICs.
“This is a perfect example of it, build now and seek forgiveness later,” they said.
All three properties formerly owned by SKJM Consortium have also recently changed hands. The 43-hectare estate on Birchalls Lane at Berrima, which boasts its own tennis court and airstrip, was sold at a $2.3 million loss.
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