Armstrong Alliance Pty Limited v Kogarah City Council

Land and Environment Court (NSW)|2012-05-07

Judgment 1ACTING SENIOR COMMISSIONER: On 16 November 2006 Kogarah City Council (the council) granted consent to DA 242/2006 for a multi unit housing development comprising 5 x 2 bedroom units and a basement car park at 19 Elizabeth Street, Allawah (the site). The proposed multi unit housing development has been partially completed. 2This appeal is against an Order (No 19) given by the council under s 121B of the Environmental Planning and Assessment Act 1979 on 21 December 2011. The Terms of Order are: Immediately cease all construction work at Lot 36 DP 4724 being 19 Elizabeth Street Allawah that are associated with the construction of a residential flat building. 3The Reasons for the Order are: •The building under construction at Lot 36 DP 4724 being 19 Elizabeth Street Allawah does not have a valid Construction Certificate. •The building under construction at Lot 36 DP 4724 being 19 Elizabeth Street Allawah is not being built in accordance with Development Consent 242/06. 4The applicant, in the Amended Application Class 1, seeks orders that state:

The s 121B Order No 19, Environmental Planning and Assessment Act 1979 dated 21 December 2011 ("the Order") be set aside
Alternatively, the terms of the Order be varied as follows: "Immediately cease will construction work over the part of the property identified as "Pt 4" and "Pt 6" on the survey report of Barry James Inwood annexed hereto and marked "A"."
Alternatively, the terms of the Order be varied to permit the applicant to perform the work set out in the document annexed hereto and marked "B" in relation to the whole of the property except for that part of the property identified as "Pt 4" and "Pt 6" on the survey report of Barry James Inwood annexed hereto and marked "A".
The Respondent pay the Applicants costs.
Such other order as this Court deems fit.

Background 5On 12 December 2011, council officers inspected the site and observed that the partially constructed building did not comply with the approved plans for DA 242/2006. The significant differences were:

3 residential storeys at the rear of the site rather than 2 residential storeys,
6 units rather than the approved 5 units, and
additional excavation at the basement car parking level. 6On further investigation, the council officers found that the applicant sought to rely on Construction Certificate 137/11, issued by Dix Gardner Pty Ltd on 25 May 2011 and the accompanying plans. The plans provided for:
6 units,
an additional level of car parking below the front unit,
changed floor plans for Units 1 and 2,
changed floor plans for Unit 3 and the deletion of a large courtyard terrace,
a " non trafficable roof" at level 4 off the southern end of the building has been placed by additional dwelling (Unit 4),
a suspended concrete slab/ terrace area and enclosed room to the southern end of the building, and
the provision of a lift shaft in the centre of the building. 7A written document entitled "Construction Certificate" is included in the councils bundle (Exhibit 3, p40) although the exhibit contains no attachments. 8The council commenced Class 4 proceedings on 23 December 2011 that sought, in part, declarations that:
the building work has not been carried out in accordance with DA 242/2006,
the building works are in breach of s 76A(1)(a) of the Environmental Planning and Assessment Act 1979,
Construction Certificate 137/11, issued by Dix Gardner Pty Ltd on 25 May 2011, has not been validly issued, and
orders restraining the carrying out of further works and requiring the demolition and the removal of unauthorised works. 9In response to the Class 4 proceedings, the applicant undertook to immediately cease all construction work associated with the construction of the multi unit housing development. The applicant has also lodged with the council:
a building certificate application to authorise Unit 4, the variation to the basement and minor change in levels to the floors, and
a development application for the use of Unit 4 as a residential apartment. 10These applications were proposed to be considered by the council on 28 May 2012, although at the time of the judgment, the outcome was unknown. 11An amended Construction Certificate was issued by Dix Gardner Pty Ltd on 12 March 2012 (the amended Construction Certificate) although it had the same certificate number as the Construction Certificate issued on 25 May 2011.

The council's case 12Mr Griffiths, for the council, accepts that the question of the validity of the Construction Certificate is a matter for the Class 4 proceedings and not these proceedings. He however, submits that the appeal should be dismissed for a number of reasons. First, Construction Certificate 137/11, issued by Dix Gardner Pty Ltd on 25 May 2011 and accompanying plans differs significantly from the DA 242/2006 plans and the building, as partially constructed on the site. Further, the evidence of the councils Building and Compliance Co-ordinator, Mr Cox was that the amended Construction Certificate drawings are copies of the DA 242/2006 plans and do not reflect the building, as partially constructed on the site. Mr Griffiths submits that as Mr Cox was not required for cross-examination and the applicant provided no expert evidence to refute his evidence, his evidence must be accepted. 13Second, and according to Mr Cox, the area opposite Unit 1 was subject to additional excavation not shown on DA 242/2006. Mr Cox provided photos that indicated walls and door jambs that resemble potential residential use however no explanation has been provided by the applicant on its intended use. Further attempts to inspect this area by Mr Cox have been unsuccessful. 14Fourth, issues over compliance with the Building Code of Australia (BCA) in relation to fire safety, are unresolved, according to Mr Cox. He states that it is unclear whether any consideration was given in the issuing of the Construction Certificate to compliance with the relevant requirements of the BCA in relation to fire safety. In his opinion, the Construction Certificate plans did not comply with the deemed to satisfy provisions of Part D1.3 of the BCA. 15Also, Mr Cox states that the amended Construction Certificate plans are photocopies of the original development consent drawings and while adequate for the purposes of granting development consent, are inadequate as Construction Certificate plans. For example, the drawings do not show slab thicknesses or whether walls are cavity walls. In his opinion, and even if accepted as Construction Certificate plans, the plans do not comply with the deemed to satisfy provisions of Part D1.3 of the BCA. 16Mr Griffiths further submits that the ability to rely on the amended Construction Certificate plans is also uncertain as there may be no power to amend the Construction Certificate in the manner undertaken by the certifier. 17Fifth, Mr Griffiths submits that no BASIX Certificate has been provided for the Construction Certificate or amended Construction Certificate.

The applicant's case 18Mr Ayache submits that the constructed building is a hybrid of the Construction Certificate plans and the DA 242/2006 approval but still substantially the same as the DA 242/2006 plans. He submits that the Court must accept that the Construction Certificate plans as valid, until declared otherwise, and that the applicant is entitled to act on these plans. He rejects the evidence of Mr Cox in relation to the fire safety concerns as speculation and that the absence of a BASIX Certificate can be easily remedied. 19Mr Ayache submits that the Court cannot place any reliance on the amended Construction Certificate plans as they were not part of the evidence in the proceedings although I note that a written document entitled "Construction Certificate (Amended)" is included in the councils bundle (Exhibit 3, p61), including one Attachment identified as "Fire Safety Schedule".

Findings 20In considering the different submissions and the alternative Orders proposed by the applicant, I am satisfied that the approach adopted by the council should be preferred for a number of reasons. 21First, there was no dispute that the building, as constructed, does not reflect the DA 242/2006 plans, the Construction Certificate plans or the amended Construction Certificate plans. Mr Cox refers to the difference as significant whereas Mr Ayache's submissions describes the differences as substantially the same as the DA 242/2006 plans. In my view, the description of Mr Cox is more accurate. 22While Mr Ayache submitted that that the Court cannot place any reliance on the amended Construction Certificate plans as they were not part of the evidence in proceedings, the evidence of Mr Cox is clear (and unchallenged) in that he had viewed the amended Construction Certificate plans and these plans were simply photocopies of the original development consent drawings, did not reflect the building work as constructed and were unsuitable for Construction Certificate plans. There is no reason why I should not accept his evidence on the amended Construction Certificate plans. 23I also note that the survey plans referred to by the applicant in their alternative Orders (survey report of Barry James Inwood) do not reflect the building, as constructed, as the area opposite Unit 1 (and referred to by Mr Cox as the area of additional excavation) is not shown on these plans. The consequence is that there are no plans before the Court that reflect what has been constructed. In my view, it would be inappropriate to allow work to continue on the site, even for minor work suggested in the applicants alternative Orders, without a clear understanding of what work is to be carried out and in what area. I do not accept that the applicants alternative Orders provide sufficient certainty to be considered as viable or reasonable options in the proceedings. The uncertainty of the applicants alternative Orders was raised by Mr Griffiths however no amendments were made. 24Second, I agree with Mr Cox that the fire safety assessment and compliance with the BCA is uncertain, at best. I accept his unchallenged evidence that the Construction Certificate plans do not satisfy the deemed to satisfy provisions of Part D1.3 of the BCA and the amended Construction Certificate do not allow a proper assessment of the BCA requirements. In any event, any reliance on the assessments for fire safety carried out as part of the Construction Certificate plans and amended Construction Certificate plans (as referred to in Exhibit 3, pp 40 and 61) must be fundamentally flawed as these assessments relate to plans that are different to the building, as constructed. 25I also agree with the submission of Mr Griffiths that the concerns of the council may have been addressed through a further fire safety report that provided a performance based assessment to the BCA requirements (rather than the deemed to comply standards in the BCA) however this sensible approach was not adopted by the applicant. 26Third, I accept that the absence of a BASIX Certificate may be easily addressed however without a BASIX Certificate, it is inappropriate to dismiss the valid legal concerns raised by the council. Again, the suggestion of Mr Griffiths that any concerns of the council may have been addressed through a fresh BASIX Certificate was also not adopted by the applicant.. 27Mr Griffiths raised the question of power in relation to the amended Construction Certificate although it was not fully explored by the parties. In my view, it is not necessary to address this matter beyond stating that if there was power to amend the Construction Certificate, then it would not alter my conclusions for the reasons set out earlier in the judgment. Conversely, if the amended Construction Certificate was found to be issued contrary to power, and reliance was placed on the Construction Certificate, then my conclusions would be the same. 28Section s 121K(4) provides: (4) On hearing an appeal, the Court may: (a) revoke the order, or (b) modify the order, or (c) substitute for the order any other order that the person who gave the order could have made, or (d) find that the order is sufficiently complied with, or (e) make such order with respect to compliance with the order as the Court thinks fit, or (f) make any other order with respect to the order as the Court thinks fit. 29In this case, I do not accept that the applicant has provided sufficient justification for the proposed alternate Orders and I propose that the Terms of Order be endorsed and the Reasons for the Order be modified, in accordance with s 121K(4)(b), to read: The Reasons for the Order are: 3.1.The building under construction at Lot 36 DP 4724 being 19 Elizabeth Street Allawah is not being built in accordance with the "Construction Certificate" of Dix Gardner Pty Ltd 137/11 dated 25 May 2011, or 3.2.The building under construction at Lot 36 DP 4724 being 19 Elizabeth Street Allawah is not being built in accordance with the "amended Construction Certificate" of Dix Gardner Pty Ltd 137/11 dated 25 May 2011

Orders 30The Orders of the Court are:

The appeal is dismissed.
The Terms of Order given by the Kogarah Council under s 121B of the Environmental Planning and Assessment Act 1979 on 21 December 2011 for the partially completed multi unit housing development 19 Elizabeth Street, Allawah, are endorsed
The reasons for the Order given by the Kogarah Council under s 121B of the Environmental Planning and Assessment Act 1979 on 21 December 2011 for the partially completed multi unit housing development 19 Elizabeth Street, Allawah, are modified in accordance with s 121K(4)(b) of the Environmental Planning and Assessment Act 1979 to read: The Reasons for the Order are: 3.1 The building under construction at Lot 36 DP 4724 being 19 Elizabeth Street Allawah is not being built in accordance with the "Construction Certificate" of Dix Gardner Pty Ltd 137/11 dated 25 May 2011, or 3.2 The building under construction at Lot 36 DP 4724 being 19 Elizabeth Street Allawah is not being built in accordance with the "amended Construction Certificate" of Dix Gardner Pty Ltd 137/11 dated 25 May 2011.
The exhibits are returned with the exception of exhibit 1.

G T Brown Acting Senior Commissioner 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 June 2012

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