Ardill Payne & Partners v Byron Shire Council

Land and Environment Court (NSW)|2023-03-07

Judgment

COMMISSIONER: This judgment relates to two appeals heard together following the Court's order on 10 February 2023, that Proceedings No 2023/36669 be heard in conjunction with Proceedings No 2022/331053 on 6 and 7 March 2023.
The first appeal, Proceedings No 2022/331053, is a Class 1 Development Appeal pursuant to s 8.9 of the Environmental Planning and Assessment Act 1979 (EPA Act) being an appeal against the refusal of Modification Application No 10.2018.534.2 (the Modification Application), made pursuant to s 4.55(2) of the EPA Act, which seeks to modify Development Consent No 10.2018.534.1 granted by the Respondent on 6 March 2020 for development described on the Notice of Determination as "Dual Occupancy (Detached) Including a Swimming Pool for Each Dwelling" (the Consent) at 44 Brownell Drive Byron Bay legally described as Lot 7 in DP248668 (the Site). (Modification Application Appeal).
The Modification Application was amended twice since the commencement of the proceedings (Ex C and Ex G). The first amendment to the Modification Application was on 10 February 2023, when the Court granted the Applicant leave to amend the Modification Application by: 1. Removal, from the Modification Application, of any reference to works that have already been constructed and leaving only "WC and shower added adjacent to the plant room"; 2. Relying on the plans prepared by Harley Graham Architects comprising of Sheet 01 Cover Page/Location Plan and Sheet 02 Plans/Sections dated 2 February 2023 (Ex C); and 3. Adding to the Modification Application "approval for the use, for residential purposes, the works the subject of the application."

The Site and Locality

The Site is depicted in Figure 4 below. Figure 4: Sheet No 01- extract only: Location Plan (Ex C).
The ASOFAC (Ex 2) describes the Site and Locality, extracted as follows: "The subject site is an 828.3m2 residential allotment, legally described as Lot 7 in DP 248668 and known as 44 Brownell Drive, Byron Bay. The subject site is located on the corner of Brownell Drive and Palm Valley Drive in the locality of Wategos Beach, approximately 2km east of the Byron Bay CBD. The subject site is generally rectangular in shape, with a width of 24.385m and a depth of 38.405m. The land has steep topography and slopes away from Brownell Drive in a westerly direction, falling from a level of 28m AHD at the primary street frontage to 20m AHD at the western boundary. The subject site is within Zone R2 Low Density Residential pursuant to Byron Local Environmental Plan 2014. … Existing on the site is a dual occupancy (detached) comprising of two multi-storey dwellings with swimming pools that are currently under construction. Dwelling 1 is built over three levels and contains four bedrooms, two bathrooms/ensuites and covered car parking for two vehicles. An elevated swimming pool and covered deck with a northerly aspect are located on the third floor adjacent to the living/kitchen/dining area. Dwelling 2 is built over four levels and contains four bedrooms, two bathrooms/ensuites and covered car parking for two vehicles. The upper level contains a plant room accessed via a central staircase that opens onto a covered deck and swimming pool area with a north-westerly aspect. Vehicular access for both dwellings is provided via an elevated driveway that runs parallel with the northern boundary and connects to Brownell Drive…. The subject site is in the Wategos Beach locality, which lies at the eastern end of Cape Byron, approximately 2km from the Byron Bay township. The Wategos residential area is surrounded by the Cape Byron State Conservation Area and is bounded to the north by Wategos Beach and the Cape Byron Marine Park. Entry to the precinct is via Palm Valley Drive, which connects with Lighthouse Road. The Cape Byron Lighthouse can be accessed by a walking track that passes along the beachfront. Wategos has a predominantly natural character, with residential development sitting below a backdrop of coastal native vegetation and littoral rainforest communities which extend across the top of Cape Byron. Coastal native vegetation can also be found on the road verges and a small number of vacant lots and Crown reserves scattered throughout the area. Built form is generally characterised by two storey and split-level dwellings that often have multiple levels in response to the steepness of the topography. Over the past 15 years or so, many of the original 1960s and 1970s holiday cottages have either been rebuilt or extensively renovated and extended. The replacement dwellings consist of a variety of contemporary coastal architectural styles with some being of substantial size. Development adjoining the subject site is accordingly residential in nature. The neighbouring property to the north contains a small two-storey weatherboard cottage dating to the early 1980s. To the east is a row of two-storey dwelling houses on the opposite side of Brownell Drive. To the south lies a contemporary style two-storey dwelling built in 2012 (known as the Wing House), and a small two-storey fibro cottage dating to the early 1970s. A vegetated Crown reserve adjoins the western boundary."
The Site is wholly within the Coastal Zone and is a visually prominent site pursuant to the Byron Shire Development Control Plan 2014 (BDCP) (Transcript, 7 March 2023, page 26). Chapter E5 of the BDCP provides a Character Narrative for Pocket C - Wategos at Section E.5.8.4 (Ex 4 folio 391) which includes the following: "The residential character is one of an eclectic array of architectural styles with diverse coastal architectural themes. Some new dwellings are two or three storeys in height and step down the slope of the site. There are examples where building bulk dominates the site, regarded by some as inconsistent with the R2 Low Density Residential zone of the area. It is considered important that future housing remains consistent with the R2 zone objectives, with appropriate bulk and scale and use of natural landscaping."
The parties rely on a Joint Expert Report (JER) prepared by Jeff Mead for the Respondent and Dwayne Roberts for the Applicant filed 28 February 2023 (Ex 6). The expert Town Planners were not cross examined during the proceedings.
The Modification Application Appeal Contentions pressed by the Respondent are set out in the ASOFAC (Ex 2) as follows: 1. Impacts on privacy and amenity; 2. Insufficient information: 1. The extent and nature of the proposed modification is unclear; 2. Whether the proposed toilet and shower rooms comply with the National Construction Code (NCC) in relation to minimum room heights. 1. Public interest
The Applicant filed Statement of Facts and Contentions in Reply (SOFAC in Reply) in the Modification Application Appeal (Ex D) and in the BIC Appeal (Ex E).
The BIC Appeal Contentions pressed by the Respondent are set out in the Statement of Facts and Contentions (BIC SOFAC) filed 17 February 2023 (Ex 3) as follows: 1. Contravention of Height of Building development standard pursuant to cl 4.3, Byron Local Environmental Plan 2014 (BLEP) 2. Character 3. Zone Objectives 4. Impacts on Privacy and Amenity 5. Non compliance with National Construction Code 6. Development Control Order Issued 7. Visual Impacts - insufficient information 8. Public Interest
I will address the BIC Appeal firstly by addressing the jurisdictional arguments presented by the parties and then secondly, by undertaking the merit notional development assessment in accordance with the Respondent's contentions. However, I will first address the Modification Application Appeal and then the BIC Appeal setting out my reasons as to how I reach the conclusion that both appeals should be dismissed.

Modification of development consent pursuant to s 4.55(2) of the Environmental Planning & Assessment Act 1979

The modification sought by the Applicant is pursuant to s 4.55(2) of the EPA Act, however the detail of the modification sought is not sufficiently clear.
The Applicant relies on Drawings Sheet No 01 "Cover Page/Location Plan" and Sheet No 02 "Plans/Sections" dated 2 February 2023 (Ex C) and Sheet 01.3 "Sections" dated 7 March 2023 (Ex G) to modify the Consent. From these plans I reproduce below at Fig 5 Sheet No 02 of Ex C showing the "red buddle" indicating the proposed works, and I have reproduced above at Fig 1 Sheet 01.3 "Sections" (Ex G) showing the additional works to be undertaken in order for the shower and toilet floor to ceiling heights to comply with the NCC relying on the BIC Appeal architectural 'as built' drawings. Figure 5: Sheet No 02- showing the "red bubble" for modification of consent (Ex C).
Agreed Draft/Proposed Conditions of Consent were filed on 3 March 2023 for the Modification Application Appeal (Ex 7) and the Applicant provides the Court with Proposed Order for Works to allow the BIC to be issued. I do note that the Draft/Proposed Conditions of Consent do not include Sheet 01.3 (Ex G), only Sheet 02 Rev 4.55 dated 2 February 2023 (Ex C).
The complication and challenge for the Modification Application Appeal is that works have not been constructed in accordance with the Construction Certificate Plans (CC Plans) (Ex 4, Tab 3) and it is therefore necessary for the Court to determine the scope of the BIC Application as distinct from the future works for which approval is sought under the Modification Application. The Court is unable to approve a modification for works already constructed, such as the dividing wall(s) for the shower and toilet as observed during the onsite inspection on day 1 of the proceedings.
The Applicant's case for the Modification Application is that one way of dealing with the non-compliance with the NCC is to direct the issue of a BIC subject to works being done, and the other way is to deal with it through the Modification Application through Sheet 01.3 (Ex G) and/or a condition that requires those works. This approach conflates the BIC Application and the Modification Application Appeal.
I accept the Respondent's submission and conclude that if the Court is to assess the Modification Application Appeal on the approved CC Plans, the modification sought, namely the installation and use of a toilet and shower in the Plant Room, will not comply with the NCC because the floor to ceiling height of the toilet and shower will not achieve the 2.1m floor to ceiling height for at least two thirds of the room where the approved floor to ceiling height is 2,055mm (CC Plan 605, Fig 2).
I will come back to the Modification Application after I set out my reasons for the BIC Application Appeal.

BIC Application

The Applicant's case for the BIC Appeal is that the scope of the BIC Application is broad and extends to the whole of level 3 of Dwelling 2. The Applicant seeks that the Court exercise its powers under ss 8.25(3)(a) and 6.26(2) and (7) of the EPA Act. The Applicant submits that the Court can lawfully order the Applicant to undertake certain works (s 6.26(7)) and provide certification as to those works (s 6.26(2)) prior to the Council being directed to issue a BIC (s 8.25(3)(a)) and that these would be self executing orders in accordance with the decisions of Senior Commissioner Dixon in Kowalczyk v Liverpool City Council; Tabone v Liverpool City Council; Rothshire Pty Ltd v Liverpool City Council [2022] NSWLEC 1479
It is necessary to establish what was approved in order to assess the BIC Appeal. It is agreed that the Determination of the Development Application of 6 March 2020 provides that "The development is also to be in accordance with any changes shown in red ink on the approved plans or conditions of consent." (Tab 2, Respondent's Bundle of Documents Ex 4). Accordingly, the agreed position is that the Consent's "red ink" indicates the approved height of Dwelling 2 to be at RL 33.400 (Drawing 09, Ex 4).
The Dwelling 2 has been constructed at 615mm above the approved RL 33.400 (see folio 13 in the Respondent's Bundle (Ex 4)) and (Transcript, 7 March 2023, page 11 (28)): "The roof to the pool plant room was approved at RL33.4 and the BIC Application says that the roof, as constructed, at its maximum point on that ridge is at RL34.015 and that gives you the 615 mm."
The building height and the roof form of Dwelling 2 have not been constructed in accordance with the CC Plans (Ex 4, Tab 3). Other departures from the CC Plans were observed during the site inspection including, for example, the stairs to the pool.

What is the scope of the BIC?

The preliminary question or issue in dispute between the parties is the scope of the BIC Application being considered by the Court. The Court has the following relevant documents before it which together should define the scope of the BIC Application: 1. BIC Application lodged with the Respondent 21 December 2022 (Ex 4, Tab 13 and Ex B) for Part of building being "Top floor, Level 03 of building/dwelling 2" to "Review unauthorised work" and listing a number of documents. 2. Architectural Plans 221215_HGA220_BIC_LEVEL03 Appendix B - Architectural plans consisting of 3 sheets, Sheet 01.1 Cover Page, Sheet 01.2 Plan of Level 03_Top Floors and Roof Level and Sheet 01.3 Sections dated 15 December 2022 (Ex B). 3. Appendix A - Locality Plan (Ex B). 4. Survey Plan 16114A Plan Showing Contours & Detail and BDY Peg - R2 (Ex B). 5. Class 1 Application filed 3 February 2023 (Ex B) seeking the following orders: 1. That the appeal be upheld. 2. That pursuant to s 8.25(3) of the EPA Act, the Respondent be directed to issue a BIC with respect to the following works undertaken on the "Top Floor", being Level 03 of building (dwelling) 2 at the property at 44 Brownell Drive Byron Bay constructed pursuant to development consent 10.2018.534.1; 1. The form of the roof - a pitched roof; and 2. The works, including the form of the roof, which have increased the height of the building. 1. Any other order as the Court thinks fit. 1. Description in the BIC SOFAC (Ex 3) par 4: 1. "This Statement of Facts and Contentions assumes that the BIC Application only relates to those works shaded in red on the architectural plans submitted with the application referred to at paragraph 5(d) below (being the works referred to in the Class 1 Application form)" 2. The Court notes that at paragraph 5(d) the Architectural plans listed above at [45(2)] are listed with no other comment or description. 1. The description in the BIC SOFAC in Reply (Ex E) is specified as follows: 1. at Part A (a) "The Applicant agrees with the description of the Appeal …"; and 2. at Part B (1)(h) - The Applicant otherwise pleads that the other work the subject of the BIC Application - being the work identified in the email (dated 25 January 2023 from the Respondent to the Applicant), is of an acceptable impact, primarily relates to building work and has no impact on the amenity of the area. 1. Email from the Respondent's Building Services Coordinator to the Applicant's representative dated 25 January 2023 (Ex 4, Tab 14, and annexed to the Affidavit of Michael Young filed 7 February 2023 in the BIC Appeal): "Following this morning's inspection the following comments are made: … 2. The Floor to ceiling heights in the shower and WC rooms do not appear to comply with the BCA which requires a minimum 2.1 floor to ceiling height for 2/3rds of the floor area for sloping ceilings to the underside rafter, currently only 50% of the floor area is complaint (sic). Demonstrate BCA compliance is achieved. … 4. Please clarity the extent of works to be included in the BIC. The below snip is from the BIC Application form, which appears to be for the entire floor are of Dwelling 2 level 03 (top floor). It the entire floor is to be included, council will require the following additional certification: • Water Proofing certification for external wall (planter box side) of the shower and bathroom. • Glazing certificate for all glazing installed to this level. • Plumbers certification for all sanitary plumbing and drainage pipes installed to this level. • Plans show external BBQ sink that is not covered by a roof. This fixture is not supported as rainwater will be able to enter Council's sewer system, and the water sewer service pipes must be removed. • Certification for balustrade and pool barrier installed." 1. Affidavit of Mr Young filed 7 February 2023 in support of the Notice of Motion to amend the Modification Application heard before the Registrar on 10 February 2023: "2. This affidavit is made in support of a Notice of Motion filed 3 February 2023 which seeks to amend the modification application the subject of these proceedings to: (a) remove references to works that have already been constructed, and (b) clarify that the works that are subject of the modification application are the installation of a shower and toilet in the Plant Room and the future use of those facilities as part of the residential use of the dwelling. … 14. I am instructed and believe that as at the date of the making of the MA, and its determination: (a) The roofline of the stairs, the position of the sink, and the construction of the 'pop out' roof in concrete, was construction that had been undertaken in accordance with the plans approved by the CC. (b) The form and height of the roof over the Plant Room (Pool Plant) had been constructed but not in a manner consistent with the plans approved by the Consent and CC. (c) The toilet and shower had not been constructed in the plant room." 1. Affidavit of Michael Young filed 7 February 2023 in support of the Notice of Motion to have the BIC Appeal heard together with the Modification Application: "5. These proceedings concern an application for a building information certificate in respect of the form and height of the roof over the plant room, which has been constructed not in a manner consistent with the plans approved by the Consent and a subsequent construction certificate. … 10. The appeal commenced from the deemed refusal of the BIC application confirms the work on the "Top floor … of dwelling 2" to which the application relates is the form of the roof which increases the height of the dwelling at that location (over the plant room). … 12. The plan to which the Motion dated 3 February 2023 relates, being Annexure A to the Motion, makes it clear that the BIC application concerns the roof, that being the built item that has been constructed other than in accordance with the Consent."
The Respondent states that the BIC SOFAC (Ex 3) expressly sets out the assumed scope of the BIC at par 4 [44(6)(a)] and the Respondent relies on the Affidavit of Mr Young dated 7 February 2023 in support of the Notice of Motion relating to the BIC Appeal at [5] and [12] of that affidavit reproduced above. The Respondent's case is that the Applicant's BIC Application is as set out at par 4 of the BIC SOFAC (Ex 3) and that the Court does not have jurisdiction to amend or modify the BIC (Scarf v Shoalhaven City Council [2021] NSWLEC 128 ("Scarf")).
The Applicant says that the BIC scope is not limited to the "red" shading and extends to the whole of level 3 (Written submissions and Transcript, 7 March 2023, page 48) and most importantly, the Applicant confirms that there is no application to modify the BIC Application. Applicant Written submissions at par 21 provides as follows: "The works that have been carried out contrary to the CC, that the Applicant seeks to have made the subject of a BIC, are as follows (a) Partially constructed walls for the areas that enclose the shower and the toilet (WC). (b) An additional stair to the pool. (c) The deletion of the stairs at the north of the pool adjacent to the balustrade and fence at the north west elevation. (d) The work nominated above to be clearly and accurately depicted in an as-built plan or plans."
The Applicant also seeks that it be required and directed by the Court, prior to the issue of the BIC, to replace rafters in the shower and WC areas to provide for a ceiling height to these rooms that complies with NCC requirement that two thirds of the floor to ceiling height to these rooms be greater than 2.1 metres. The Applicant can also provide the information requested by the Respondent in paragraph 2 of its Notice titled "Refusal of Building Certificate" dated 10 February 2023 and addressed to the Applicant.
The Applicant submits that the decision of Scarf and what it determined is not quibbled with and there is no application seeking to modify the BIC.
I am not satisfied that the scope of the BIC Application is broad and I do not accept that the BIC Application extends to the whole of level 3 of Dwelling 2 because on numerous occasions the Applicant sought to confirm the confines of the BIC Application to the roof height and roof form. To include anything else would effectively amend the BIC Application which is unable to be done.
The Applicant seeks orders whereby the Court exercises its jurisdiction pursuant to s 8.25(3)(a) of the EPA Act to direct the council to issue a BIC on conditions in accordance with s 6.25(7) of the EPA Act, namely, to defer determination until the applicant has had an opportunity to do certain work (Chami v Lane Cove Council [2015] NSWLEC 1003 ("Chami")). In order to entertain the Applicant's submission, I set out the statutory regime.

Statutory regime for Building Information Certificates

First and foremost, the ability to issue a BIC, or the Court's power to direct the issue of a BIC, is a discretionary matter (Transcript, 7 March 2023, page 26). That discretion under s 8.25 of the EPA Act is a broad discretion (Gosling v Penrith City Council [2016] NSWLEC 1288).
Secondly, the nature and effect of a BIC is set out in s 6.25 of the EPA Act as follows: s 6.25 Issue, nature and effect of building information certificate (cf previous ss 149D, 149E) (1) A building information certificate is to be issued by a council only if it appears that - (a) there is no matter discernible by the exercise of reasonable care and skill that would entitle the council, under this Act or the Local Government Act 1993 - (i) to order the building to be repaired, demolished, altered, added to or rebuilt, or (ii) to take proceedings for an order or injunction requiring the building to be demolished, altered, added to or rebuilt, or (iii) to take proceedings in relation to any encroachment by the building onto land vested in or under the control of the council, or (b) there is such a matter but, in the circumstances, the council does not propose to make any such order or take any such proceedings. (2) A building information certificate is a certificate that states that the council will not make an order or take proceedings referred to in subsections (3) and (4). (3) A building information certificate operates to prevent the council - (a) from making an order (or taking proceedings for the making of an order or injunction) under this Act or the Local Government Act 1993 requiring the building to be repaired, demolished, altered, added to or rebuilt, and (b) from taking civil proceedings in relation to any encroachment by the building onto land vested in or under the control of the council, in relation to matters existing or occurring before the date of issue of the certificate. (4) A building information certificate operates to prevent the council, for a period of 7 years from the date of issue of the certificate - (a) from making an order (or taking proceedings for the making of an order or injunction) under this Act or the Local Government Act 1993 requiring the building to be repaired, demolished, altered, added to or rebuilt, and (b) from taking civil proceedings in relation to any encroachment by the building onto land vested in or under the control of the council, in relation to matters arising only from the deterioration of the building as a result solely of fair wear and tear. (5) However, a building information certificate does not operate to prevent a council from making a development control order that is a fire safety order or a building product rectification order (within the meaning of the Building Products (Safety) Act 2017). (6) An order or proceeding that is made or taken in contravention of this section is of no effect.
The powers for the Court on appeal of the refusal to issue a BIC are set out in s 8.25(3) of the EPA Act and in s 39(2) of the LEC Act. The Applicant seeks orders from the Court exercising function and powers under s 8.25(3)(a) and s 6.26(2) and (7), emphasised in the reproduction of those sections below as follows (Transcript, 7 March 2023, page 47): s 8.25 Appeals with respect to building information certificates (cf previous s 149F) … (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. [emphasis added] s 6.26 Miscellaneous provisions relating to building information certificates (cf previous ss 149A, 149C, 149D, 149G) (1) A building information certificate may apply to the whole or to part only of a building. (2) On receipt of an application for a building information certificate, the council may, by notice in writing served on the applicant, require the applicant to supply it with such information (including building plans, specifications, survey reports and certificates) as may reasonably be necessary to enable the proper determination of the application. (3) If the applicant is able to provide evidence that no material change has occurred in relation to the building since the date of a survey certificate which, or a copy of which, is supplied to the council by the applicant, the council is not entitled to require the applicant to supply a more recent survey certificate. (4) If the council refuses to issue a building information certificate, it must inform the applicant, by notice, of its decision and of the reasons for it. (5) The reasons must be sufficiently detailed to inform the applicant of the work that needs to be done to enable the council to issue a building information certificate. (6) The council must not refuse to issue or delay the issue of a building information certificate by virtue of the existence of a matter that would not entitle the council to make any order or take any proceedings of the kind referred to in section 6.25(1)(a) (Issue, nature and effect of building information certificate). (7) Nothing in this section prevents the council from informing the applicant of the work that would need to be done before the council could issue a building information certificate or from deferring its determination of the application until the applicant has had an opportunity to do that work. (8) The council must keep a record of building information certificates issued. (9) A person may inspect the record at any time during the ordinary office hours of the council. (10) A person may obtain a copy of a building information certificate from the record with the consent of the owner of the building. [emphasis added]
Both parties agree with the principles articulated by Pain J in Scarf. Pain J dismissed a Notice of Motion seeking leave to modify a BIC Application and states at [57] to [59] as follows: "57. Concerning the BIC Appeal, no express power exists in the EPA Act to enable modification of a BIC, as identified in the Council's submissions in [45]-[46]. None can be implied. The Council's submissions identify the relevant sections of the EPA Act which provide for the making of a BIC in ss 6.22-6.23, and the relevant regulations in cll 260, 280-281 of the EPA Regulation. As the Council identified, these provisions may be contrasted with the clauses in the EPA Regulation which provide expressly for the amendment of various instruments, in cl 55 (development applications), cl 55AA (State significant development applications), cl 55A (amendment of development application by BASIX certificate), cl 129A (complying development certificate by BASIX certificate), cl 192 (State significant infrastructure approval), cl 196B (modification of Minister's approval request), and now cl 121B. 58. For the reasons given by the Council set out in [42]-[44] the reasoning in Dartbrook in obiter dicta confirmed in ratio decidendi in Duke Developments applies equally to the BIC provisions in the EPA Act. No express or implied power in the EPA Act or EPA Regulation allows a proponent or a consent authority to modify a BIC. 59. For the reasons given by the Council in [48] referring to Dartbrook at [256]-[258] the Court does not have power in an appeal to which s 39(3) applies to exercise a function which cannot arise under s 39(2). Section 8.25(3) does not confer a separate power on the Court to amend a BIC. Also as submitted by the Council relying on Dartbrook at [260]-[266], s 64 of the CP Act or Pt 19 of the UCPR do not assist the Applicant."
Pain J went further in Scarf to comment as follow at [63] - [64]: "63. If I did have power I would not have granted the notices of motion in the exercise of my discretion in any event, due to their lateness given the impending hearing date and the unsatisfactory state of the plans sought to be relied upon. Firstly, in the course of the hearing it became apparent that the substantial overlap between the plans submitted for both proceedings was problematic. 64. The purpose of a BIC application and a modification of development application are not the same. An applicant needs to ensure that any plans relied on satisfy what is able to be considered in relation to a specific application. The Modification Appeal can seek leave to use buildings constructed without lawful authority. Development consent for works constructed illegally can never be granted, a long-standing legal position recently confirmed again in Ku-ring-gai Council v Buyozo Pty Ltd (2021) 248 LGERA 300; [2021] NSWCA 177 at [39]-[45] (Preston CJ). A BIC prevents a council from making orders under the EPA Act or the Local Government Act 1993 (NSW) requiring a building to be repaired, demolished, altered added to or rebuilt and from taking civil proceedings in relation to the encroachment of buildings onto council land in relation to matters existing or occurring before the date of issuance: s 6.25(3) of the EPA Act. It has similar effect, for seven years, in relation to matters arising only from the deterioration of the building from fair wear and tear: s 6.25(4) of the EPA Act. An order or proceeding taken in contravention of s 6.25 is of no effect: s 6.25(6) of the EPA Act. Plans submitted to support each of these respective applications must address what can be dealt with in relation to each appeal, and these did not."
I am not satisfied with the BIC plans submitted by the Applicant and it is my opinion that the BIC plans are sufficiently problematic for me to conclude not to exercise my discretion to direct the Council to issue a BIC. As agreed between the parties, the Modification Application Appeal will therefore be dismissed because the approved CC Plans do not permit a sufficient ceiling height for a shower and toilet as required by the NCC.
I consider what was approved and reproduce the Dwelling 2 Level 3 floor plan extract from Plan CC 302 below at Fig 6. Sheet number CC 302 shows, on the right-hand side, the upper level, level 3, of dwelling 2 indicating an approved floor level of RL31.050 on the roof level (Transcript, 7 March 2023, page 14 (45)). Figure 6: Floor plans - level 3 CC 302 (Folio 101, Ex 4).
The South-West Elevation in Plan CC 702 (folio 123, Ex 4), below at Fig 7, shows what was approved when looking from 26 Palm Valley Drive, Byron Bay. Figure 7: South-West Elevation CC 702 (folio 123, Ex 4).
And finally, the roof plan, below at Fig 8, identifies the design in the slope of the roof, a 3 degrees pitch all in an easterly direction and then a 30 degrees pitch for the element that was on the edge (Transcript, 7 March 2023, page 15 (3)). Figure 8: CC 303 Roof plan (folio 102, Ex 4).
What was actually constructed is attempted to be captured by the Applicant in the BIC Application.
It is agreed that the survey at Tab 8 of Ex 4 and email from Dwayne Roberts date 7 July 2022 state "The surveying work is now complete which confirms the height shown on the attached plans is correct." The Plan at folio 180 of Ex 4 shows an RL of 34015 which is 615 mm higher than the approved 33.4m at AHD. The plan also shows a dimension of 9879 to the top of the roof of Dwelling 2 suggesting the overall height exceedance, as built, is 879mm above the 9 m maximum height of building development standard pursuant to cl 4.3 of the BLEP. As set out elsewhere in this judgment, there are some discrepancies with the as-build plans and what was observed on site.
Although it may be desirable to bring finalisation to the dispute between the parties regarding the works not in accordance with consent (BIC Application) and regarding future works proposed as a modification of the Consent, I am not satisfied that there is sufficient clarity of scope for either the Modification Application Appeal or the BIC Appeal.
The Applicant proposes a solution to the challenge of bringing finality to the dispute in similar terms to Chami, where Moore SC, as he then was, dealt with a BIC Application which had been refused. He did not have 'as built' plans and conducted a site view and identified works that had been done and required certification, and works that needed to be removed or altered. Those works were extensive, and were listed on a schedule annexed to his decision. It is particularly relevant that Moore SC found that the BIC Application applied to the whole of the built form of the dwelling (at [27]). In first instance, there is no submission before me that the BIC Application applies to the whole of the built form of dwelling 2, only that it is broader than the 'red shading' on the plans and that the scope of the BIC extends to the whole of level 3 of Dwelling 2. I am not satisfied that the path taken by Moore SC in Chami is a path available to me in relation to a BIC for the part of a building,
The Applicant also relies on the orders made in Kowalczyk v Liverpool City Council; Tabone v Liverpool City Council; Rothshire Pty Ltd v Liverpool City Council [2022] NSWLEC 1479, where Dixon SC made the following orders: "The Court orders: (1) The appeal is upheld. (2) The applicant is to carry out the works and provide the additional information set out in Annexure A to Liverpool City Council. (3) Upon the applicant finalising the works and providing the additional information as set out in Annexure A to the reasonable satisfaction of the Council, the Council is directed to issue a building information certificate in respect of building information certificate application no. BC-78/2022 concerning the property at 10 Wolstenholme Avenue, also known as 648 Greendale Road, Greendale (being Lot 6 in Deposited Plan 245146)."
Dixon SC made those orders on 9 September 2022 following an agreement reached between the parties pursuant to s 34 of the LEC Act. There is no such agreement between the parties and Dixon SC was not dealing with a modification application which relied on the success of a BIC Application, only an application for consent for the use of the unauthorised building.
I also note the timing of the decision in Scarf which was handed down by Pain J on 15 November 2021.
I similarly dealt with proceedings for a BIC application for unauthorised works, a Development Application for further works and an appeal against a Development Control Order to cease unauthorised works in relation to a boundary masonry wall in the matter of Wechsler v Lane Cove Council [2023] NSWLEC 1083 ("Wechsler"). In the Wechsler matter all three appeals were dealt with together in a similar way as in these proceedings. In relation to the BIC appeal in Wechsler I said as follows: "70. It is appropriate to undertake a notional or hypothetical development assessment of the unauthorised Wall consistent with the previous cases of Ireland v Cessnock City Council [1999] 110 LGERA 311; [1999] NSWLEC 250 and Lee v Randwick City Council [2021] NSWLEC 1200 71. The Building Information Certificate is sought only in respect of that part of the Wall which has been constructed above the red line and does not seek regularisation of that part of the Wall below the red line. 72. The drawings are not sufficiently clear to show what works are the subject of the BIC Appeal and on that basis alone the Building Information Certificate should not be issued. 73. I conclude that the Court is unable to direct the council to issue a Building Information Certificate because there is insufficient information to undertake the assessment of the unauthorised portion of the Wall. I conclude that the BIC Appeal must fail because there is insufficient detail and information to permit an assessment or determination of the Application and will result in approving an uncertain development."
In that matter it was relevant that it was unable to be determined what development or future works were proposed from the drawings (see Wechsler at [78]). In these proceedings, it is agreed that the Modification Application, if assessed against the approved drawings will fail because it is unable to comply with the NCC floor to ceiling requirements. On the other hand, if the Modification Application is assessed against the BIC Application, the drawings provided in the BIC Application are inaccurate to the extent that the dimensions are not as built as I detailed at [17] above.

Findings on jurisdiction for BIC

Having considered all the evidence available to the Court, and for the reasons at [49] above, I find that the Scope of the BIC is for part of the built form of Dwelling 2 limited to the roof form and the additional height.
The Applicant relies on the BIC Application being upheld in order to support the Modification Application Appeal, however the 'works order' is tantamount to amending the BIC Application so as to support the Modification Application Appeal being assessed against the building as constructed, namely, the lining and height of the roof form over the proposed toilet and shower which, but for the BIC Application would not comply with the NCC floor to height ceiling.
The Applicant seeks to rely on Sheet 01.3 dated 7 March 2023, which amended the Modification Application, in item 2 for the schedule of works for the BIC Appeal for the purpose of a demolition plan and then the Modification Application deals with future or prospective works (Transcript, 7 March 2023, page 56 (40)). This is problematic because the effect of the Applicant's approach is to, in effect, amend the BIC in an attempt to cure a defect in the Modification Application, namely the floor to ceiling non-compliance in the shower and toilet. I therefore conclude that I do not have jurisdiction to direct the Council to issue the BIC as sought by the Applicant with a direction to undertake the works order.
If I am wrong, and it is otherwise determined that the Court has jurisdiction to make the orders and directions sought by the Applicant in the BIC Appeal, then I set out my merit assessment below as my reasons to not exercise my discretion to direct the issue of a BIC pursuant to s 8.25 of the EPA Act. (Transcript, 7 March 2023, page 60).

Merit assessment of the BIC Application

There is authority that in determining a BIC Appeal, the Court is to ignore the fact that the work is already constructed (Jonah Pty Limited v Pittwater Council (2006)144 LGERA 408; [2006] NSWLEC 99). That is to say that the Applicant gets no benefit from something being built or the fact that there may be a cost to having to demolish that if there is inability or there is no approval given by way of the issue of a certificate for those works to remain.
Is it also an accepted principle that the Court is to undertake a notional development assessment of a BIC Application (Ireland v Cessnock City Council [1999] 110 LGERA 311; [1999] NSWLEC 250 and Lee v Randwick City Council [2021] NSWLEC 1200). Therefore, I consider the merit contentions raised by the Respondent, namely: 1. Height of building: does the increased height meet the objectives of the development standard, in particular objective (c), of cl 4.3(1) of BLEP, minimising visual impact? 2. Amenity impact on adjoining neighbours. 3. NCC compliance for minimum floor to ceiling heights.
Starting with the increased height of building, there is no notional cl 4.6 written request for the Court's consideration in the notional assessment of the BIC Application. The Council's assessment report which dealt with the original Modification Application, that is, in its original form containing elements that could not be included, and these were then transferred to the BIC Application (Transcript, 7 March 2023, page 22 (11)). The Applicant relies on the Council officer's assessment report for this purpose (Transcript, 7 March 2023, page 34). I have considered the assessment report at Tab 11 of Ex 4 by Ben Grant, planner, which addresses the increase to the overall height of building and the objectives of the height of buildings standard.
I have also considered the evidence of the town planning experts, Mr Mead and Mr Roberts in the JER(Ex 6).
Mr Mead makes a comparison between the "ultimate approved form" as shown in the extract image at par 6.9 of the JER and Mr Mead also includes an image showing the form of roof "sought in the BIC application" at par 6.11 of the JER, however, I note that the image extracted at par 6.11 of the JER is from Sheet No 02 "Sections" from the Modification Application (Ex C). I am satisfied that for the purpose of comparison of height of building these images may be useful and I reproduce these extracts from page 13 of the JER below at Fig 9 and Fig 10: Figure 9: Planning Joint Expert Report. Figure 10: Planning Joint Expert Report.
It is relevant that Mr Mead expresses his opinion on height of building at pars 6.7, 6.12, 6.13 and 7.4 of the JER which I reproduce below as follows: "6.7: … The approved height was in my opinion ample to accommodate plant equipment ie a plant room. ..." "6.12: … In the current BIC application, rather than a small corner of the roof encroaching the majority of the substantive roof is non-compliant." "6.13: … In my opinion, a four storey dwelling form is uncharacteristic of the locality, which is predominantly characterised by two and three storey dwellings, and does not "minimise visual impact". Whilst I accept that the increase in height subject of the BIC is much less than a storey, the additional height exacerbates visual bulk and fails to minimise impacts, particularly when considered in light of the lack of necessity to provide this height for the functional purpose of a plant room." "7.4: … Minimising overall height of the building was of importance in the original assessment and measures were taken to reduce the maximum height in order to achieve an acceptable character contribution."
Mr Roberts, on the other hand, is of the opinion that: "From a visual impact perspective, the increase if (sic) the roof height of 615mm is barely perceivable from the street or surrounding properties." (JER, par 6.5)
I conclude that the increased height of building does not achieve the objective of minimising visual impact and on merit would not have been approved.
Following then onto the amenity contention, the concerns expressed by the objector relate to acoustic privacy and the noise impacts arising from the intensification of use of level 3 of Dwelling 2. During the site inspection the Court was advised that the proposed pool plant equipment is estimated by the Applicant to require space of approximately 1.5m2 and that the pool plant equipment is proposed by the Applicant to be located in the basement of Dwelling 2. The Court was shown the pool plant equipment location in the basement of Dwelling 2.
I am satisfied that the evidence supports on balance, that there will be increased opportunity for greater noise impacts on the adjoining neighbours resulting from the increased space and change of use of the area referred to as the pool plant room. In addition, the comparison images, included in the JER by Mr Mead and reproduced above at [78], are evidence in support of the contention by the Respondent that the new roof form has a visual impact because it is bulkier and higher than approved.
I have already dealt with the NCC Contention insofar as the minimum floor to ceiling height required for the shower and toilet.
I adopt the Respondent's submission and conclude that, having regard to the functional purpose or the functional requirements relating to the room over which the roof is situated, I am not convinced that on the assessment of a notional development application, that the increased height would ever or should ever have been approved because it is not consistent with objective (c) of the height of building development standard, cl 4.3(1) of BLEP, namely of minimising visual impacts.
I conclude, for these reasons that on a merit assessment the BIC Application does not warrant the exercise of the Court's discretion to direct the issue of a BIC.

Modification Application Appeal

Returning briefly to the Modification Application Appeal. I have concluded not to exercise my discretion to direct the issue of the BIC for the reasons set out above, therefore the Modification Application is to be assessed against the approved CC Plans. Accordingly, the Modification Application Appeal cannot be upheld because the minimum floor to ceiling heights required by the NCC for the shower and toilet are unable to be achieved.

Proceedings No 2022/331053 (Modification Application Appeal)

The Court orders: 1. The appeal is dismissed. 2. All exhibits are retained.

Proceedings No 2023/36669 (The Building Information Certificate Application)

The Court orders: 1. The appeal is dismissed. 2. All exhibits are retained.

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: 06 July 2023

(2021) 248 LGERA 300

At a glance

Court

Decision date

Catchwords

Source

Catchwords

Judgment (12 paragraphs)

Parties

Legislation Cited (1)

Cases Cited (10)