Abdul-Rahman v Canterbury-Bankstown Council

Land and Environment Court (NSW)|2023-06-14

Solicitors: DG Briggs and Associates (Applicant) Canterbury-Bankstown Council (Respondent) File Number(s): 2022/223128 2022/370262 Publication restriction: No

Judgment

COMMISSIONER: These are two appeals, and on 25 January 2023 the Court ordered that they be heard together and that evidence in one appeal be evidence in the other. The first (2022/223128, the DA appeal) is an appeal pursuant to the provisions of s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal of Development Application No 155/2022 for the remaining works to complete the gazebo building and its use as a as part of the existing restaurant accommodating 44 seats (the proposal) at 6 Burwood Road, Belfield (the site) by Canterbury-Bankstown Council (the Council). The second (2022/370262, the BIC appeal) is an appeal pursuant to s 8.25(1) of the EPA Act against the Council's refusal to issue Building Information Certificate No 126/2022 (BIC) under Pt 6 of the EPA Act for the building works undertaken so far for the gazebo building.

The development application is amended

The development application was twice amended during the hearing (referred to as Revision D and Revision E) (Ex A) in response to the experts' evidence. The Applicant agreed to pay those costs of the Council thrown away as a result of the amendments of the application, pursuant to s 8.15(3) of the EPA Act, for both amendments, as agreed or assessed.

Issues

The Council's contentions pressed in relation to the DA appeal can be summarised as:

BCA issues arise from the Applicant's own material; and
Traffic impacts.

The Council's contentions in relation to the BIC appeal can be summarised as:

Development consent is required for use of the whole of the site as the existing Complying Development Certificate (CDC) cannot authorise more than a 50-seat capacity for the restaurant. The BIC application is too narrow and would not remedy all unauthorised works at this site.
Uses, capacity and environmental effects are uncertain.
The premises are not safe in the event of a fire, egress is not safe, and the building upon the site will not restrict the spread of fire. The premises do not satisfy the requirements of the National Construction Code (NCC) - Building Code of Australia (BCA) being the relevant building standard.

The site and its context

The site is on the south-western side of Burwood Road, to the south of the Punchbowl Road intersection. The site has an area of 416.5m2. The site contains a two-storey brick building with a narrow driveway on the southern side of the site. The site is within the local town centre of Belfield and the existing building, on the ground level, is a restaurant.
At the rear of the existing building, there is a partly built structure, with concrete slab and solid double brick walls with large openings. The partly built structure is redolent of a gazebo (see Ex J), however, the development application, as amended (Ex A, identified as Revision E), is for a fully enclosed building with an entry structure on the southern side. Despite the changes made to the building by the various agreements of the experts to fully enclose it, the resulting structure continued to be referred to by the parties and their experts as the "gazebo". I have adopted "gazebo building" in the judgment to identify the amended proposal.

Background

The architectural plan of the 1992 development consent 6288/92 is described as "Proposed New Take-Away Food Shop" (Ex D). The documents the subject of the Notice to Produce dated 17 October 2022 associated with the 1992 consent are Ex C.
The CDC described as "Internal tenancy fitout of Thai Restaurant Only - Does not include kitchen mechanical exhaust or signage", and received by Council on 2 September 2020, is Ex C. The CDC did not include a requirement for onsite car parking.

Planning framework

The powers of the Court in the BIC appeal are in the terms of s 8.25(3) of the EPA Act, as follows: (3) On hearing the appeal, the Court may do any one or more of the following - (a) direct the council to issue a building information certificate in such terms and on such conditions as the Court thinks fit, (b) revoke, alter or confirm a notice to supply information, (c) make any other order that it considers appropriate.
The site is zoned B2 Local Centre pursuant to Canterbury Local Environmental Plan 2012 and shop-top housing is a permissible use with consent in the zone. The objectives of the B2 zone, to which regard must be had, are: • To provide a range of retail, business, entertainment and community uses that serve the needs of people who live in, work in and visit the local area. • To encourage employment opportunities in accessible locations. • To maximise public transport patronage and encourage walking and cycling. • To facilitate and support investment, economic growth and development for active, diverse and well-designed centres.
Canterbury Development Control Plan 2012 (DCP 2012) applies to the proposal at A1.3. The parties agreed, based on the parking provision rates at B1.3.1 of DCP 2012, that two car parking spaces are required to satisfy the parking generation of the restaurant in the B2 zone. The relevant objectives of the B1 Transport and Parking section of DCP 2012 are as follows: "O2 To ensure casual parking on streets is available in centres to support local business. O3 To minimise overflow parking and other traffic impacts in residential streets and neighbourhoods."

Expert evidence

The Applicant relied on the expert evidence of Lance Doyle (planning), Dean Brodie (traffic), Fu Siong Hie (acoustic) and Matthew Harriman (BCA compliance).
The Respondent relied on the expert evidence of Anthony Betros (planning), Tim Rogers (traffic), Glenn Leembruggen (acoustic) and Peter Rossello (BCA compliance).
The experts prepared joint reports and gave concurrent oral evidence.

Whether development consent is required for the whole of the site as the existing CDC cannot authorise more than a 50-seat capacity for the restaurant. The BIC application is too narrow and would not remedy all unauthorised works at the site

The Applicant submitted, in summary, that there is no requirement to modify the CDC issued for the restaurant and the development application, with the BIC for the executed works, is sufficient and will be read together with the consents applying to the land, based on the following authorities:

There is no statutory or other legal constraint upon the number of development applications that a person can make in respect of the same land (Waverley Council v C M Hairis Architects (2002) 123 LGERA 100; [2002] NSWLEC 180 at [30]).
Ozaras v Inner West Council [2021] NSWLEC 1270 at [74]: "[74]…Where there is an existing consent (or CDC) to carry out development, it is open to the person with the benefit of that consent to make a further development application to carry out works and change an approved use of land within the context of that consent, without formally seeking to modify it… consideration of the merits of the development application does not occur in a vacuum and it must be assessed in the context of any development already approved."
Preston CJ in AQC Dartbrook Management Pty Ltd v Minister for Planning and Public Spaces [2021] NSWCA 112 at [232] and [233]: "[232] A development application cannot be made to vary the terms of a development consent directly; a development application can only be made seeking consent for the carrying out of development: Gordon & Valich Pty Ltd v City of Sydney Council [2007] NSWLEC 780 at [15], [16]. Nevertheless, the grant of another development consent may have the consequence of effecting a modification of the original development consent in two ways. First, the second development consent may be granted subject to a condition requiring the modification or surrender of the original development consent (under originally s 91(7) and later s 80(1)(b) and (5) and currently s 4.17(5) of the EPA Act). Second, even without a condition requiring modification, the terms in which the second development consent is granted and the carrying out of development in accordance with the second development consent may have the consequence of effecting a variation of the original consent: Gordon & Valich Pty Ltd v City of Sydney Council at [17]; Auburn Municipal Council v Szabo (1971) 67 LGRA 427 at 432-433. [233] There is nothing to prevent a person having two development consents to carry out development on the same land: Liverpool City Council v Home Units Australia Pty Ltd [1973] 2 NSWLR 61 at 70; Auburn Municipal Council v Szabo at 433; Waverley Council v Hairis Architects (2002) 123 LGERA 100; [2002] NSWLEC 180 at [30]. A development application can be made, and development consent can be granted, to erect or use a distinct part of a building or land that is already the subject of another development consent: Waverley Council v Hairis Architects at [32]. The two development consents applying to development on the same land need to be read together to ascertain the development that is authorised to be carried out on the land: Pilkington v Secretary of State for the Environment (1973) 26 P&CR 508 at 512-513; [1974] 1 All ER 283 at 287."

The Council submitted that the Applicant's approach relies on a piecemeal approach to achieve approval. The CDC that is in place can be utilised to accommodate, potentially 38 seats inside and 26 seats outside (or 16), depending on whether the description or the seating plan is adopted. Further, the accessway provides for that seating through the existing path for the gazebo patrons.
I prefer and adopt the Applicant's submissions, for the following reasons:

There is authority for the proposition that a development application can be made, and development consent can be granted, to erect or use a distinct part of a building or land that is already the subject of another consent. The development application is not being made to vary the terms of the CDC. The development application is for the remainder of construction and use of the gazebo building and the works required for BCA compliance. The development application includes that the existing driveway will no longer be used for patron seating, because it will be used as an accessway to and from the gazebo building.
The development application is for 44 seats in the proposed gazebo building, and there are existing 36 seats in the restaurant.
The existing 16 seats outside are deleted by the development application.
The upper level of the existing building has no consent for use as a restaurant, is not used for patron seating, and there is no proposal to use it for patron seating. It was clearly evident onsite that the upper level of the existing building was being used privately for the personal use of the building's occupant(s) and was not accessed by restaurant patrons.
The gazebo building is partly constructed, and the BIC is for the existing building works undertaken to construct the gazebo building (Ex B). The BIC does not prevent the Council from issuing development control orders in the future regarding the works and use the subject of the development application, or the CDC, or the 1992 consent.
The BIC is for the existing building works undertaken to construct the gazebo building (Ex B), and it is not to "remedy all unauthorised works at the site", if any.

1992 consent and CDC

The Applicant submitted that the 1992 consent must be construed and this is a finding of fact to be determined by the Court, and not by the town planning experts. There is no evidence that Council approved three car parking spaces as part of the consent, as there is no condition requiring parking and no plan showing the three car parking spaces. The spaces are merely referred to in the Council's town planner's file note dated 29 October 1992 (Ex C, f 13). In summary, the Applicant submits:

The notes on the file by Council's assessing town planner noting there are three car parking spaces on the site does not form part of the 1992 consent (Lake Macquarie City Council v Australian Native Landscapes Pty Ltd (No 2) [2015] NSWLEC 114 at [39]).
Any lack of clarity in the 1992 consent is the responsibility of the Council and it must take the consequences (Lake Macquarie City Council v Australian Native Landscapes Pty Ltd (No 2) [2015] NSWLEC 114 at [42]).
If the 1992 consent required three on-site car parking spaces, it would have been necessary for that requirement to be incorporated into the consent by condition (Ryde Municipal Council v Royal Ryde Homes (1970) 91 WN (NSW) 440; [1970] 1 NSWR 277).

The Council contends that the last consent issued by the Council DA-6288/1992 was for the use of the ground floor shop as a take-away food shop. The consent was issued on the basis the site maintained 3 off-street parking spaces at the rear of the site, with access from Burwood Road down the side setback. The Council submits that there is no requirement to construe 1992 consent.
There is no requirement to construe the 1992 consent. The existing driveway, at 2.38m wide, is unable to be used safely for staff or patrons to access the rear setback of the existing building for car parking. The CDC did not include a requirement for onsite car parking. There is no car parking on the site.

Parking

The traffic experts agreed that the existing driveway at 2.38m wide is not appropriate access for onsite parking.
McLaren Traffic Engineering undertook a parking survey on Friday 2 December and Saturday 3 December 2022 between 4pm and 9pm within 200m of the site and found that there are 84 on-street parking spaces available (excluding Linda Street) and on-street parking demand was a minimum of 61 spaces and a maximum of 68 spaces.
Mr Rogers undertook his own parking survey on Friday 19 May 2023, including the Council's car park in Downes Street (35 spaces) and excluding Linda Street (Attachment E to Ex 5). In each of the time periods surveyed, there were at least two spaces available within 200m of the site. Mr Rogers noted that the allocation of these two spaces to the proposal would saturate the available parking during the evenings of the weekend as there is little spare capacity within 200m of the site during the weekend evenings.
The experts agreed that there are no time restrictions for on-street parking in the Belfield Local Centre after 6pm. There are no time restrictions in the Council's carpark after 1pm on Saturday until the following Monday.
I am satisfied that it is appropriate for the agreed allocation of two spaces to be on-street car parking spaces for the following reasons:

Mr Rogers determined that there were at least two spaces available between 6pm and 8pm on the evening of Friday 23 May 2023 within 200m of the site.
There are accessible spaces available in the Council's own car park during the peak evening periods, according to Mr Roger's survey.
It is not possible to provide off-street parking on the site because the driveway is too narrow.
There are other restaurants in the Belfield Local Centre which rely solely on on-street parking for patrons.
There are no time restrictions for car parking within the Belfield Local Centre after 6pm. If the Council is minded to respond to evening demand by patrons of restaurants and take-away food premises for on-street parking in the Belfield Local Centre, the Council could create capacity by changing the parking restrictions after 6pm, particularly on weekends, and particularly within the Council's own car park. It need not do so in response to this application alone, as there is already, according to Mr Rogers, very little spare capacity within the Belfield Local Centre.

I am satisfied that the relevant objectives of the B1 Transport and Parking section of DCP 2012 are met by the proposal.

Planning

Mr Betros raised the issue of re-notification of the development application to the affected neighbour following the amendment of the application to include an entry structure on the southern side, as agreed by the acoustic experts. The hearing was adjourned on the final day for the period required for the re-notification of the amended application to the affected neighbour. The amended application was re-notified and no submissions were received.
Mr Betros was concerned that the access to the open space at the rear of the site for the occupant of the upper floor of the existing building was restricted. A door was added to the entry structure to the gazebo building in the amended proposal to provide access to the rear of the site only for the occupant of the upper floor of the existing building.

BCA compliance

The BCA compliance experts agreed that BCA compliance can be achieved by the provision of an additional WC and urinal. The amended plans filed with the Court and listed under condition 1.1 of the conditions of consent at Annexure A include the addition of the WC and urinal in the existing wet areas of the restaurant.
The BCA compliance experts agreed that BCA compliance can be achieved by the provision of protection to openings in the gazebo building, and that this can be achieved by a condition of consent (condition 1.2 of the conditions of consent at Annexure A).
I accept Mr Harriman's evidence that the Construction Certificate documentation will have to show details as to compliance with the BCA, and based his expert opinion, in his report dated 6 December 2022 (Ex C, ff 91-165) that this can be achieved. The summary of BCA non-compliances identified by Mr Harriman at f 94 is addressed by condition 1.2 of the conditions of consent at Annexure A.

Conclusion

I am satisfied that it is appropriate, on the basis of the evidence before me, to grant development consent to the application and to require the Council to issue the BIC, once the Occupation Certificate for the gazebo building has been issued under Pt 6 of the EPA Act. If the development consent is not commenced and completed, the BIC cannot be issued.

Orders

The orders of the Court are: In the 2022/223128 appeal: 1. The Applicant is to pay the Respondent's costs thrown away as a result of the amendments of the development application, pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, as agreed or assessed. 2. The appeal is upheld. 3. Development Application No 115/2022 for the completion of the partially constructed gazebo building for dining for 44 patrons, in association with the existing restaurant (food and drink premises), proposed retaining walls, landscaping, and use of the gazebo building, at 6 Burwood Road, Belfield, is determined by the grant of consent, subject to the conditions of consent at Annexure A. 4. The exhibits, other than Exhibits 1, 2, A and B, are returned. In the 2022/370262 appeal: 1. The appeal is upheld. 2. Pursuant to s 8.25(3) of the Environmental Planning and Assessment Act 1979, the Council is directed to issue a Building Information Certificate 126/2022 with respect to the existing works comprising the concrete footings, concrete floor slab, and brick walls, at 6 Burwood Road, Belfield, within 7 days of the issue of an Occupation Certificate for the completed gazebo building. 3. The exhibits, other than Exhibits 1, 2, A and B, are returned. Susan O'Neill Commissioner of the Court Annexure A Annexure B

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: 17 August 2023

(2021) 105 NSWLR 152

(2002) 123 LGERA 100

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