//
© 2026 Zoe. All rights reserved.
Zoe is a legal information platform. Always consult the Federal Register of Legislation for authoritative text.
[2012] NSWLEC 1360
mixed. (1) Appeal in matter No. 10698/2012 upheld in part: DA/65/2012 approved on a deferred commencement basis subject to an additional 1m rear setback (minimum 4.6m) and structural certification of basement...
The Land and Environment Court held that a partly constructed residential flat building which deviated from an earlier consent could be regularised: the Court approved retention and completion of an additional rear unit (Unit 4) subject to a deferred commencement requiring Unit 4's rear wall to be set back an extra 1 metre (making it at least 4.6m from the rear boundary) and requiring structural certification that basement columns can be modified so that at least nine parking spaces can be provided. Once the specified remedial works and accredited certification are completed, the Court directed the council to issue a building certificate. The decision applied s124 (assessment of unauthorised works on their merits) and the building certificate tests in s149D/s149F(3), and accepted RDG parking discretion given proximity to public transport and on‑street parking evidence (see [36], [41]–[45], [46]–[50]).
AI-generated legal information, not legal advice. Zoe can make mistakes. Check the cited source, and for advice about your situation consult a qualified Australian lawyer.
1,854 words · generated 31/08/2026
No linked legislation citations have been extracted yet.
Armstrong Alliance Pty Ltd sought to regularise a partially constructed residential flat building at 19 Elizabeth Street, Allawah by lodging (a) a development application (DA/65/2012) to complete construction and use an additional unit (Unit 4) at the rear, and (b) an application for a building certificate for the building as constructed. The works on site differed from Development Consent No. 242/2006 granted 16 November 2006: the building, as constructed, included altered levels, enlarged terraces, reconfigured basement parking and an additional unit at level 4 which the council characterised as a sixth unit and alleged included a 4 bedroom unit (see [1]–[6], [9]–[10]). The council refused both applications. Armstrong appealed to the Land and Environment Court. The council also had in place regulatory actions, a Stop Work Order and separate injunction proceedings, but those were noted as distinct matters (see [7]).
The concurrent appeals were heard on 12–13 December 2012. The Court conducted an on‑site inspection, received lay objector evidence on amenity impacts (overshadowing, loss of outlook, privacy concerns) and expert planning evidence from both sides (Mr S McDonald for the applicant, Mr M Devlin for the council) (see [24]–[26]). Parties agreed that many remedial works would be required; the applicant proposed amended plans and agreed to remove openings and to make parts of undercroft areas unusable; there was agreement on many items in Exhibit 5 but disagreement on extent of demolition required for unit 4 and a terrace (see [6], [11]).
The principal contested issues became whether Unit 4 should be retained given its bulk/height/scale/proximity and whether adequate on‑site parking could be provided (see [13]). The Court had to undertake two distinct tasks: (1) assess the development application on its merits (s124 pathway), and (2) determine whether a building certificate should be issued (s149D/s149F pathway) (see [36], [46]–[48]).
Legal framework and threshold
Merits assessment of Unit 4
The Court assessed bulk, scale, solar access and streetscape character. It accepted the contextual evidence that the locality is dominated by 3–4 storey apartment buildings (see [16], [41]). Planning experts agreed that with modifications (including reinstating deep soil and planter boxes, reducing terraces and adding screening) the building would better align with objectives of the RDG and SEPP regimes (see [10], [21], [41]).
On solar access and overshadowing, experts agreed the additional overshadowing from Unit 4 affected certain non‑living room windows and an adjoining common open space, but the extent complied with RDG controls; nevertheless the council’s planner observed the rear setback non‑compliance produced additional overshadowing. The applicant agreed to increase the rear setback by 1m. The Court found that this additional 1m (resulting in a minimum 4.6m setback from the rear boundary) would materially improve solar access and the visual impact and make the development appropriate in context (see [33], [35], [41]–[42]).
Parking
The RDG permits a maximum of 10 parking spaces for a development of this size but clause 3.7.7 allows discretion to reduce parking where there is proximate public transport or low on‑site demand. The site is 210m from a ramped entry to Allawah Station (slightly beyond the 200m guideline). The Court regarded that 10m exceedance as minor and not a bar to exercising discretion, given evidence of on‑street parking availability and proximity to the station (see [27], [30]–[33]).
A critical practical constraint was the basement column configuration. Experts agreed that, subject to structural modification of the basement blade columns, the basement could accommodate 10 spaces but that if a protecting bollard was required adjacent to an egress path (a possibility the Court proceeded on), space 7 would be inaccessible and spaces 1 and 2 would not comply with AS 2890.1 unless used in a particular manner. On that basis the experts accepted that nine usable spaces was the practical outcome and the Court required structural certification of column modifications to ensure at least nine parking spaces can be provided (see [28]–[29], [43]).
Deferred commencement and certification
Building certificate
Before: The authorities cited (Sahade [2006] NSWLEC 770 and Taipan [1999] NSWLEC 276) already established that the EP&A Act regime permits assessment of unauthorised works on their merits and that regularisation may be appropriate subject to planning assessment, and that penal or enforcement measures are separate issues (see [37]–[38]).
After (practical effect of this decision): The decision reinforces that:
Thus the decision is consistent with earlier authority but applies those principles to concrete site‑specific factual findings, emphasising the Court’s power to condition consent and to require certification of remedial structural works before a building certificate is issued.
Paragraph 36: "There are two tasks before the Court...", translation: The Court must (1) decide if the development should be approved on planning grounds, and (2) decide if the building certificate should be issued under the statutory test. Each is a separate legal exercise.
Paragraph 37 (quoting Sahade and applying s124): The Court confirms that developments carried out without consent can still be assessed and may be regularised by consent if planning merits support it. Translation: Past unlawful construction does not automatically prevent consent; the development is judged on its planning merits now.
Paragraph 42: "Provided the rear wall of unit 4 is setback a further 1m ... I consider that it is an appropriate form of development...", translation: If the applicant moves the rear wall back by 1 metre (increasing compliance with setback and solar access controls) the Court considers Unit 4 acceptable given the surroundings.
Paragraph 43: Court accepts reduction to nine parking spaces subject to structural certification. Translation: Because of the basement layout, the Court accepts one fewer parking space is acceptable, but only if engineers certify that the layout can be made to work safely and practically.
Paragraphs 46–48: s149D and s149F(3) discussion. Translation: The law requires councils to issue building certificates if no serious defects remain, and the Court can order issuance on conditions; here the experts agreed that once the required works are done and certified, the building certificate should be issued.
This decision will be particularly relevant where:
This judgment itself applies and follows the established approach in Sahade and Taipan that s124 pathways exist and that regularisation is not precluded by prior unlawful works (see [37]–[38]). It illustrates the Court’s practical approach to conditioning consent by deferred commencement where technical matters (structural works, parking functionality) require post‑consent certification. Parties and practitioners should look to this decision for an example of (a) using deferred commencement to secure structural certification before final consent takes effect, and (b) applying DCP parking discretion when proximity to transport is close to but not strictly within numerical guidelines. Note: this deep dive is limited to the decision text; subsequent appellate treatment or citation in later cases is not considered here.
Enforcement vs regularisation: The judgment notes separate enforcement proceedings remain available to the council (stop work, injunctions, Class 4 proceedings) (see [7], [38]). It leaves open how and when a council should pursue those remedies in parallel with s124 applications; the decision does not set out a test for when enforcement should preclude regularisation.
Scope of certification and future compliance monitoring: The Court required structural certification but did not expressly articulate the precise certification form, timing, or conditions for compliance monitoring once the building certificate issues. Practitioners need clarity on acceptable certification scope and the procedural mechanics of satisfying deferred commencement conditions and ensuring the certificate reflects those conditions.
Parking allocation contingency: The judgment accepted one unit may be left unallocated a parking space if nine spaces are the maximum achievable. How councils should record and enforce such an allocation limitation (e.g. in the development consent, strata by‑laws or title instruments) remains a practical implementation matter not fully resolved in the text.
Margin for DCP numerical tolerances: The Court treated a 10m exceedance of the 200m RDG guideline (site 210m from the station) as a minor variation. How much margin is acceptable generally is case‑specific; this decision does not create a bright line and leaves discretion dependent on site context and evidence.
Final note: This analysis extracts and summarises the Court's reasoning and orders in Armstrong Alliance v Kogarah City Council [2012] NSWLEC 1360. It is general legal information only and not legal advice. I can make mistakes. Before you act, rely on this, or use any draft based on it, get a qualified Australian lawyer to check.
Mr S Griffiths Pikes & Verekers Lawyers (Respondent) File Number(s): 10698 and 10699 of 2012
Judgment 1These are two appeals in relation to a partially constructed residential flat building at No. 19 Elizabeth Street, Allawah. The building has been constructed contrary to the terms and conditions of Development Consent No. 242/2006 (Consent) issued by Kogarah Council on 16 November 2006 and Armstrong Alliance Pty Ltd has lodged a development application and application for a building certificate seeking to regularise the works. The council has refused both applications and Armstrong is appealing those decisions. 2Matter No. 10698 of 2012 relates to the refusal by the council of Development Application DA/65/2012 that proposed the completion of construction and use of an additional unit at the rear of development at 19 Elizabeth Street. 3Matter No. 10699 of 2012 relates to the refusal of the building certificate application for the residential flat building as constructed on the site.
Background and the applications 4The matters were the subject of conciliation conferences in this Court however no resolution was reached and the conference terminated. Armstrong was granted leave by the Court to rely on amended plans on 26 October 2012. The council did not notify those plans however those persons who had made objections to the original application were advised of the changes and invited to address the Court. 5The parties agree that the matters are heard concurrently and evidence is to apply to both applications. 6The consent authorised the construction of a multi-unit housing development containing 5 x 2 bedroom units with basement carpark for 9 cars. Construction works have commenced and the building now contains a basement carpark and three levels above whereas the approved plans provided for a part 2 and part 3 storey structure above the basement. The final level across the northern portion of the building is still to be constructed. The council alleges the building now contains 6 x 2 bedroom and 1 x 4 bedroom units. The applicant has agreed to enclose openings, fill the area at the northern end of the building (the alleged 1x4 bedroom unit) above the basement and remove plumbing and water fixtures so that the area (undercroft area) is not capable of use for any purpose. The applicant is seeking consent to complete the building and use the sixth unit, described as unit 4, as a dwelling. That unit is located on level 4. 7The building as constructed is subject to a Stop Work Order issued by the council and injunction proceedings have also been commenced and adjourned pending the outcome of these matters. 8In granting consent to the application, the council varied its planning controls relating to lot size, minimum frontage, side and rear setbacks, private open space and impervious areas in recognition that the site was an isolated site bounded on all sides by residential flat buildings. 9The plans on which the applicant relies provide for a number of changes to the building as approved, the main ones being:
The issues 13As a result of further amendments made to the plans during the hearing, the issues in dispute between the parties are summarised as follows:
The site and its context 14The site is located on the south-western side of Elizabeth Street between Railway Parade and Rutland Street, has a frontage of 12.19m, depth of 40.815/40.91m and area of 498.2sqm. The land falls approximately 4m from Elizabeth Street to the rear and benefits from a right-of-carriage way over the adjoining property to the north-west (No. 15-17 Elizabeth Street). A steep ramp servicing the basement carpark of the four storey residential flat building on that land is erected within the right-of-way and is also used to access the basement currently constructed on the site. 15To the south-west of the site at Nos. 21-25 Elizabeth Street is a three storey residential flat building above at grade garages so that the building presents as a four storey structure and to the rear of the site are 3 and 4 storey flat buildings fronting Lancelot Street. 16Residential flat buildings are located opposite the site to the west of Barsbys Avenue with one and two storey dwelling houses to the east of that street with more flat buildings further to the east. The dominant built form in the locality is 3 and 4 storey residential flat buildings. 17Allawah shopping centre and Railway Station is approximately 200m north-west of the site.
The planning controls 18The site is zoned Residential 2(b) - Residential (Medium Density) under Kogarah Local Environmental Plan 1998 and multi-unit housing is a permissible form of development with consent. 19State Environmental Planning Policy No 65 - Design Quality of Residential Flat Buildings (SEPP65), State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 and deemed State Environmental Planning Policy - Georges River Catchment apply to the application. 20The Residential Design Guide 2005 - Development Control Plan (RDG) also applies to the site. Its strategic objectives include development in Kogarah maintains and enhances the character and amenity of our neighbourhoods...; ensure new development responds to the character of our neighbourhoods and streetscapes; housing across the City of Kogarah is designed so that it provides choice, is affordable and is suited to the needs of our community. 21According to clause 1.1, the RDG supports the objectives identified in the LEP and establishes a set of objectives, design principles and standards for the character of the street and then requires applicants to demonstrate how their proposal satisfies the objectives, design solutions and controls. The outcomes of the RDG do not focus on compliance with numerical requirements, although numerical requirements have been incorporated to ensure certain outcomes the RDG requires, more importantly, that applicants demonstrate a consideration of design elements in the streetscape, identifying how the proposal responds to those elements. 22Relevant controls are contained in Section 3 and 4 as follows:
The evidence 24The hearing commenced on site and evidence was heard from a number of objectors to the applications. The view included observation of the development from within three of the units owned by objectors at Nos 21-25 Elizabeth Street and one at No 15-17 and from the common open space area of an adjoining Lancelot Street unit complex. The issues raised are summarised as follows:
Conclusion and findings 36There are two tasks before the Court, one is to assess the development application on the basis of its merits as if the building had not been built. The other is to determine whether a building certificate should be issued.
Should development consent be granted? 37It is clear that the Environmental Planning and Assessment Act 1979 (the Act) contemplates the determination of a development application involving works that have been carried out in breach of that Act. Section 124 provides for that to occur. This is made clear by Jago J in Sahade v The Owners - Strata plan No. 62022 & Ors [2006] NSWLEC 770 where her Honour states: 10 In my view, s 124(3) of the Environmental Planning and Assessment Act 1979 is an important provision disclosing part of the legislative scheme that underlies the statute. That is, there is a clear intention disclosed by s 124(3) that, where the relevant breach of this Act is the carrying out of development without development consent, in circumstances where development consent can be obtained for the development, there should be an opportunity for prospective respondents to proceedings or actual respondents to proceedings to make application to adjourn proceedings to enable a development application to be made and determined under Pt 4. I consider that s 124(3) has an important role to play in achieving the objects of the Act, as set out in s 5, because it is through a process of assessment and determination of a development application that all relevant matters under s 79C of the Act can be weighed, assessed and determined. 38The path described in Sahade is the precise path the applicant has taken in these proceedings and I have regard to the fact that the council has also commenced proceedings under Class 4 of the Land and Environment Court Act 1979 (the LECAct) as detailed at [7] and it is also open to it to take further action in relation to the unauthorised works should it deem appropriate. In this case, it is important to consider the merits of the application and not consider the legal implications of that work having been undertaken. That is a matter for another day and is made clear by Bignold J in Taipan Holdings Pty Ltd V Sutherland Shire Council [1999] NSWLEC 276 where his Honour at [115 to 117] states: 115. The contrasting decision of the Full Court of the South Australian Supreme Court in Kouflidis v City of Salisbury (1982) 29 SASR 321, (decided 20 years later) was next noted, with citation of an extended passage from the judgment of King CJ at 323-324. I do not here repeat that passage, it perhaps being sufficient to extract from it the following three brief sentences (which encapsulate the relevant line of reasoning): Although an applicant for consent should derive no advantage, direct or indirect, from the unlawful use, I do not think that it should be an impediment to the consideration of his application on its planning merits. If on the merits a planning consent should be given, it is desirable in the public interest that it should be given irrespective of the past conduct of the applicant. It is desirable that the position should be regularised leaving the past unlawful conduct to be punished by penal sanctions. 116. In Ireland I noted (at par 87) that the approach taken in Kouflidis has been consistently applied in this Court in the exercise of its comprehensive appellate jurisdiction embracing (i) planning appeals, (ii) building appeals, (iii) demolition order appeals and (iv) building certificate appeals (being a comprehensive jurisdiction that was never vested in the former Land and Valuation Court, and its absence may go far in explaining the decision in Ellmoos). 117. I adhere to the views expressed in Ireland, noting that I did not understand the Council in the present proceedings to question those views. 39The contentions in relation to the development application require an assessment of whether the proposal as constructed is acceptable in terms of parking, bulk and scale and impact on adjoining properties. 40From the evidence provided, it is apparent that in its determination of the original application, the council granted concessions to the applicant in terms of setbacks to reflect the narrow width of the property whilst allowing a built form that it considered did not have unreasonable impacts on adjoining properties. The works proposed follow the same side setback and propose setting the rear wall of unit 4 an additional 1m from the rear boundary. 41Having had the benefit of a site view and heard the evidence from the planning experts, I am satisfied that the design of the development, subject to the additional works required to allow the issue of a building certificate, would be consistent with the character of the area. 42Provided the rear wall of unit 4 is setback a further 1m, that is, 2m in total from the rear wall of the lower unit and 4.6m from the rear boundary, I consider that it is an appropriate form of development for the site, particularly noting the ultimate height of the building at its front as approved by the council. Such height is not inconsistent with the established character and of particular importance, the impacts of the work would achieve compliance with the council's controls for solar access. The bulk and scale of the building is less than those buildings it adjoins and I am satisfied, in its context that the additional unit will not be out of character. 43I am also satisfied that the site is in an area within reasonable walking distance to public transport and a relatively low demand for on-street parking. For that reason, I consider that, in the event that a bollard is required adjacent to the egress door, it is appropriate to vary the parking requirement so that only 9 spaces are provided within the basement area. The applicant has provided preliminary advice from a structural engineer that it is possible to modify the columns within the building to provide access in accordance with the AS. It will be necessary for an enginnering certificate to be provided to ensure that this can occur as I would not support a further reduction in the number of spaces to be provided on site to less than 9. As one of those spaces is to be dual use, as a carwash bay and also for parking, it is appropriate that this space is allocated to visitors. In the event that space No. 7 is not available, the wash bay would also have to be relocated within the basement area. 44Having found the built form of the works is an appropriate form of development, provided it is modified by a further 1m reduction in the depth of unit 4 so as to increase the rear setback to comply with the council's control, consent should be granted. 45For the reasons given in [42], it is appropriate that any consent granted, is issued as a deferred commencement, requiring certification that the columns within the basement carpark can be modified in accordance with the plans agreed between the parties and, on modification, are structurally adequate to support the final development as approved by the council and, as modified by this determination.
Should the building certificate be issued? 46Determination of the application for the building certificate is also required. Section 149D of the Act details the Council's obligations to issue a building certificate as follows: (1) The council must issue a building certificate 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 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 (ii) 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. 47The Court's powers on appeal are wider and, under s 149F(3), it may do any one or more of the following: (a) it may direct the council to issue a building certificate in such terms and on such conditions as the Court thinks fit, (b) it may revoke, alter or confirm a notice under section 149C, (c) it may make any other order that it considers appropriate. 48The experts agree, subject to the structural certification of the building and the completion of works detailed in Exhibit 5 that, as I have found that consent should be granted for Unit 4, the building certificate could be issued. 49The parties did not agree on one of the proposed consent conditions and that is the condition that relates to the allocation of parking. In the event that the bollard is not required and 10 spaces can be provided, all units could be allocated parking spaces. In the event that only nine spaces can be provided, as detailed above, it is necessary to relocate the carwash bay and provide a visitor space in that location so one unit would not be allocated parking on site, consistent with the council's strategy for reduction in on site parking. 50The Orders of the Court are: (1)In matter No. 10698 of 2012 (a)The appeal is upheld in part. (b)Development Application DA/65/2012 for the completion of construction and use of an additional unit at the rear of development at 19 Elizabeth Street, Allawah, is approved on a deferred commencement basis, subject to a 1m increased setback from the rear boundary so that the unit is setback a minimum of 4.6m from the rear, south-western property boundary and certification of the structural adequacy of the basement support columns to ensure that parking can be provided for a minimum of nine cars. On satisfaction of the deferred commencement conditions, the consent will be subject to the conditions included in Annexure "A". (2)In matter No. 10699 of 2012 (a)The appeal is upheld. (b)On completion of the works detailed in Annexure "A" and receipt of certification for that work from accredited certifiers, Kogarah Council is directed to issue a building certificate for the building at 19 Elizabeth Street, Allawah. (c)The exhibits, other than Exhibits B, H, K, 1 and 5 may be returned.
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: 03 January 2013
Armstrong Alliance
Kogarah City Council
(1) Appeal in matter No. 10698/2012 upheld in part: DA/65/2012 approved on a deferred commencement basis subject to an additional 1m rear setback (minimum 4.6m) and structural certification of basement columns to ensure parking for at least nine cars; on satisfaction, consent to be subject to conditions in Annexure 'A'. (2) Appeal in matter No. 10699/2012 upheld: on completion of works in Annexure 'A' and receipt of accredited certifier certification, Kogarah Council directed to issue a building certificate for 19 Elizabeth Street (see Orders, [50]).
Sue Morris Commissioner of the Court