Arriguetti v Georges River Council

Medium Neutral Citation: Arriguetti v Georges River Council [2025] NSWLEC 1814

Hearing dates: 11, 12, 13, 22 and 29 August 2025

Date of orders: 21 November 2025

Decision date: 21 November 2025

Jurisdiction: Class 1

Before: Espinosa C

Decision: Orders in DA Appeal:
The Court orders:
(1) The appeal is dismissed.
(2) Development Application DA2024/0451 for Part demolition; alterations to existing dwellings; residential use of the as-built attached dwellings and new landscaping at 2, 4, 6, 8, 10, 12 and 14 Mimosa Street South Hurstville is determined by refusal.
Orders in BIC Appeals:
The Court orders:
(1) The appeals are dismissed
(2) Exhibits are retained.

Catchwords: DEVELOPMENT APPEAL – construction of multi-dwelling housing (terraces) not in accordance with complying development certificate – no approval for use of constructed attached dwellings – unauthorised works - consent sought for partial demolition - consent sought for alterations and additions – consent sought for use of residential dwellings – consent sought for new landscaping – merit assessment – whether jurisdictional prerequisite enlivened by contravention of development standards - orders
BUILDING INFORMATION CERTIFICATE APPEALS – unauthorised works – scope of application - insufficient information – further works required - inability to amend or modify a building information certificate application – no power of court to direct schedule of works - orders

Legislation Cited: Environmental Planning and Assessment Act 1979 (NSW), ss 4.2, 6.23, 6.25, 6.26, 8.7, 8.25, Pt 6, Div 6.7, ss 6.22, 6.24, Pt 9, s 9.34
Land and Environment Court Act 1979 (NSW), s 39
Environmental Planning and Assessment Regulation 2021 (NSW), s 38
Georges River Local Environmental Plan 2021, cll 4.1B, 4.3A, 4.4, 4.6, 6.3, 6.9, 6.12
State Environmental Planning Policy (Exempt and Complying Development Codes) 2008
Uniform Civil Procedure Rules 2005, r 28.5

Cases Cited: Ali v Liverpool City Council [2009] NSWLEC 1327
Ardill Payne & Partners v Byron Shire Council [2023] NSWLEC 1348
Bunnings Properties Pty Ltd v Ku-ring-gai Council [2016] NSWLEC 1658
Chami v Lane Cove Council [2015] NSWLEC 1003
Chhabra v Ku-ring-gai Council [2021] NSWLEC 1009
Ireland v Cessnock City Council (1999) 110 LGERA 311; [1999] NSWLEC 250
Jonah Pty Limited v Pittwater Council (2006) 144 LGERA 408; [2006] NSWLEC 99
Kate Singleton Pty Ltd & S J Connelly CPP Pty Ltd t/as Planners North v Tweed Shire Council [2025] NSWLEC 1558
Kingfisher Properties Pty Limited v Northern Beaches Council [2025] NSWLEC 39
Ku-Ring-Gai Council v Bunning Properties Pty Ltd (2019) 236 LGERA 35; [2019] NSWCA 28
Ku-ring-gai Council v Buyozo Pty Ltd (2021) 248 LGERA 300; [2021] NSWCA 177
Landcorp Australia Pty Ltd v The Council of the City of Sydney [2020] NSWLEC 174
Scarf v Shoalhaven City Council [2021] NSWLEC 128
Vigor Master Pty Ltd v Warringah Council [2011] NSWLEC 1096
Walker v Queenbeyan-Palerang Regional Council [2023] NSWLEC 1031
Wechsler v Lane Cove Council [2023] NSWLEC 1083

Texts Cited: Australian Building Codes Board, National Construction Code, October 2022
Georges River Development Control Plan 2021

Category: Principal judgment

Parties: Eileen Arriguetti (Applicant)
Georges River Council (Respondent)

Representation: Counsel:
S Berveling (Applicants)
C Norton (Respondent)
Solicitors:
Gavel and Page Lawyers (Applicant)
Lindsay Taylor Lawyers (Respondent)

File Number(s): 2024/460629
2025/121286
2025/127452
2025/127498
2025/127534
2025/127552
2025/127636
2025/127657

Publication restriction: Nil

JUDGMENT

1. COMMISSIONER: These eight appeals relate to seven residential dwellings in a two-storey terrace style development already constructed on Lots 11, 12, 13, 14, 15, 16 and 17 in DP 1304464 known as 2, 4, 6, 8, 10, 12 and 14 Mimosa Street, South Hurstville 2221 NSW (the Site). On 10 April 2025, and under r 28.5 of the Uniform Civil Procedure Rules 2005 (UCPR), the Court made orders that these eight proceedings be heard together and that the evidence in each of the proceedings be evidence in the other proceedings.

2. This case has been described during the hearing as a challenging jigsaw puzzle which I have been unable to successfully put together within the confines of the proceedings to be determined.

3. There are seven individual BIC Application Class 1 Appeals (BIC Appeals), listed below at [119], one for each dwelling, pursuant to s 8.25 of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) against the deemed refusals by the Respondent to issue a BIC pursuant to s 6.23 of the EPA Act. The BIC Applications concern unauthorised building works that have been carried out in each of the individual attached dwellings on the Site. 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.

4. During the hearing the Applicant was granted leave to amend the name of the Applicant to all seven BIC Appeals from RHT Investments Corp Pty Ltd ACN 622 520 610 (BIC Appeal First Applicant) and Interact Construction Pty Ltd ACN 143 646 388 (BIC Appeal Second Applicant) to Eileen Arriguetti. I will refer to these seven proceedings collectively as the BIC Appeals unless there is a need to specifically reference a specific dwelling the subject of its own specific BIC Application.

5. There is a single Class 1 Development Appeal pursuant to s 8.7 of the EPA Act being an appeal filed 11 December 2024 (DA Appeal) against the deemed refusal of Development Application DA2024/0451 (DA) for the use of certain rooms in the seven attached dwellings on the Site, proceedings number 2024/460629. The Respondent subsequently refused the DA on 7 March 2025. The development application form describes the DA as a “Proposed use of the as-built additional and reconfigured rooms of Dwellings No. 2 to 14 (association with Building Information Certificate)”. However, as a result of the Applicant amending the development application detailed below at [80] (Ex K) the agreed description of the proposed development as per the Proposed/Draft Conditions of Consent filed in court on 22 August 2025 which include “Agreed Consolidated Comments” (Ex 13) is as follows:

“Part demolition; alterations to existing dwellings; residential use of the as-built attached dwellings and new landscaping” (the Proposed Development).

6. Council’s contentions are set out in the DA Appeal in the Amended Statement of Facts and Contentions filed in court on 5 June 2025 (Ex 2) (DA ASOFAC) and in the BIC Appeal in the Statement of Facts and Contentions filed 20 May 2025 in JL for 2 Mimosa Street (2025/127452) (Ex 1) (BIC SOFAC).

7. I will first address the DA Appeal and then the BIC Appeals setting out my reasons as to how I reach the conclusion that all 8 appeals should be dismissed and development consent refused.

8. I deal with the DA Appeal first because I have concluded that I am unable to issue any of the BICs sought, for the primary reason that the stormwater and building surveying experts agree that works are required to bring the development into compliance with the National Construction Code (NCC). Some of those works will result in physical changes to the development. The Court does not have the power to make the directions to do those works pursuant to ss 6.26(7) and 8.25 of the EPA Act. Another reason why the BIC Applications will fail is that there is not sufficient information or certainty to identify the extent of the unauthorised works which would gain the protections of the building information certificates pursuant to s 6.25 of the EPA Act. The Applicant knows what needs to be done and what needs to be further investigated. The Applicant needs to undertake those works and investigations, subject to obtaining any necessary consents or approvals, and then make a new application for the BICs for the buildings in that future state.

9. On the other hand, in relation to second limb of a BIC Application assessment, namely a notional development application assessment, I find that on the merits the BIC Applications could otherwise be upheld. Similarly, the merit assessment of the DA Appeal results in reaching the conclusion that the environmental impacts are acceptable. Accordingly, I would indicate that a grant of development consent could be granted provided all works required/suggested by the three sets of experts in evidence before the Court are undertaken. Upon completion of all of the works required/suggested by the three sets of experts, the dwellings can be certified to be NCC compliant buildings and they would also satisfy any stormwater management jurisdictional prerequisites pursuant to cll 6.3 and 6.9 of the Georges River Local Environmental Plan 2021 (GRLEP), as well as having acceptable environmental impacts. I agree with and adopt the Respondent’s position, which has been repeated a number of times during the proceedings, that it is not that these attached dwellings will never be appropriate for use, but that they are just not appropriate for use at this time (Transcript 12 August 2025, p 62 at par 36).

10. I conclude that, on the basis of the development application before the Court, I am unable to grant the consent.

11. I have determined to address the contentions by structuring this judgment as follows:

(a) Scope of BIC Application being for whole of building from para [33]; and (b) The relationship between a grant of consent for use and the issue of a BIC from para [50];

2. DA Appeal from para [79] including merit assessment and Notional assessment for BIC Appeals dealing with the merit contentions from each SOFAC relating to built form from para [88], landscape outcome from para [98] and amenity impacts from para [114].
3. BIC Appeal from [119]

(a) Legal Principles from [128] and the power of Court from [134]:

4. Conclusion and findings at [141].

Some background and context with some relevant preliminary findings

12. The Site contains seven, two storey attached dwellings constructed each on an individual Torrens title lot of land.

13. The original site, prior to subdivision, was a corner allotment, oriented north-west to south-east, which prior to construction of the dwellings, was Lot 1 in DP 1290835 (Consolidation DP), known as 2 Mimosa Street, South Hurstville. This Consolidation DP was a plan of consolidation of Lots 69 in DP 6286 and Lot Y in DP 417964 (then known as 2 Mimosa Street and 85 Connells Point Road) and was issued on 18 January 2023. This shows a total site area of 1,477.5m2.

14. The land is now subdivided into separate lots being Lots 11, 12, 13, 14, 15, 16 and 17 in DP 130446 (Current DP), known as numbers 2, 4, 6, 8, 10, 12 and 14 Mimosa Street, South Hurstville with varying lot areas of between 200m2 and 234.7m2 and lot frontages varying from 9.94m to 11.67m. This is relevant because lots with a frontage width of over 10m attract different controls.

15. What has occurred on the Site by way of development on the Site is set out in the chronology (Ex 5) tendered by the Respondent and I now summarise what I consider to be the relevant history. Pursuant to provisions of the State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 (Codes SEPP), a complying development certificate (CDC) was issued on 24 February 2023 in respect of the entirety of the Site, which at that time had different subdivided boundaries, for the ‘Demolition of existing structures and the construction of 7 attached terraces’: CDC202202MIM issued by Mohamad Orfali and architectural plans (Ex 5, Tabs 1 and 2). The CDC development is described as multi-dwelling housing (terraces) for the purposes of the Codes SEPP. I reproduce below at Fig 1 the Development Standards Checklist extracted from the CDC Ground Floor Plan (page 7) Issue C dated 17 February 2023 (Ex 5, Tab 2) which illustrates the extent of compliance of the CDC development with the Codes SEPP development standards.

Fig 1: Development standards checklist extracted from CDC approved Ground Floor Plan Issue C dated 17 February 2023 (page 7) (Ex 5, Tab 2)

16. Once the building works had been carried out, the Site was then subdivided into the current existing seven individual lots. There was an occupation certificate issued with respect to the first CDC and then there were seven subsequent CDCs issued which purported to authorise what were referred to as alterations and additions of the premises. There were also occupation certificates issued in respect of the built structures on the Site. As a result of other proceedings where an undertaking was given to not rely on any of the occupation certificates, the only valid and relevant CDC for these proceedings is the first CDC referred to above at [15].

17. The Respondent submits that use of the development is not approved in its current form because an occupation certificate has not been and is unable to be issued in respect of the built structures. The Respondent explains that:

“What that means essentially is that the terraces are not authorised to be used for the purpose of a dwelling at the moment because of the presence of unauthorised works onsite that do not comply with the first CDC therefore an occupation certificate can't be issued and also the first CDC cannot be relied on as consent for use because the building has not been constructed in accordance with that CDC. Applications were then made first of all for development consent for use relating to the whole of the site and secondly for individual building information certificates relating to each of the dwellings.” (Transcript 11 August 2025, p 2 at par 18)

18. The Respondent contends at Contention 9 of the DA ASOFAC (Ex 2) that it is inappropriate to grant consent to the DA without BICs. The Applicant submits that a BIC is required in order for the DA for use can be operative (Transcript 12 August 2025, p 79 at par 14), and articulates a key issue in these collective proceedings as a result of there being a divergence of opinion about whether the court can incorporate what the Applicant refers to as the “pre BIC works” in a direction from the Court in the BIC Appeals, as follows:

“But if there is a divergence, then the question is where do those works go? Because if they go into the DA Appeal, then given that they are works effectively required to be done before the BIC [can be issued], and you need a BIC before making the DA Appeal operative, that creates a challenging jigsaw puzzle.” (Transcript 12 August 2025, p 80 at par 5 to 10)

19. In an attempt to address the jigsaw puzzle challenge of ‘where do those works go?’, I consider the submissions relating to Contention 9 below at [54] to then reach the conclusion that a development consent can be granted without a BIC. Then, I address separately the Applicant’s proposal to deal with the so-call pre BIC works in the BIC Appeals below at [30] and [119], where I consider the BIC Appeals and reach the conclusion that the Court does not have the power to do what the Applicant seeks.

20. The Current DP (and also as can be seen in the Consolidation DP: DP1290885) shows an easement to drain water 0.9m wide affecting the rear of what is now Lots 11, 12 and 13, and extending along the northwestern side boundary of Lot 11. This is a current existing easement containing a storm water pipe, in favour of the townhouse development to the rear known as 77 Connells Point Road. Council’s records show this as a private easement, and that it services other townhouse developments to the north as well.

21. At the time of the lodgement of the first CDC and up until the registration of the Torrens Title subdivision of the Site into seven lots via DP1304464 on 10 July 2024, the CDC Development was defined for the purposes of the Codes SEPP as multi dwelling housing (terraces). On the registration of the subdivision, the constructed development of the existing dwellings is defined or categorised pursuant to the GRLEP as seven attached dwellings and I reproduce the definition from the GRLEP below as follows:

attached dwelling means a building containing 3 or more dwellings, where—

(a) each dwelling is attached to another dwelling by a common wall, and

(b) each of the dwellings is on its own lot of land, and

(c) none of the dwellings is located above any part of another dwelling.

22. The Site is zoned R3 Medium Density Residential pursuant to the GRLEP and attached dwellings are permissible with consent.

23. In these proceedings, the parties rely on, and the Court was assisted by, expert evidence set out in the following joint expert reports (JER) and the oral evidence recorded during cross examination:

24. JER Planning prepared by Anthony Betros, Consultant Planner for the Applicant and Heather Warton, Consultant Planner for the Respondent filed 18 July 2025 (Ex 8);

25. JER Stormwater Engineering prepared by Mathew Wahbe for the Applicant and Robert Lim for the Respondent filed on 11 July 2025 (Ex 7); and

26. JER Building Surveying prepared by James Deters for the Applicant and Brett Daintry for the Respondent filed on 11 July 2025 (Ex 6 comprising 3 volumes in lever arch folders) and Supplementary JER Building Surveyors filed on 12 August 2025 (Ex 10)

27. In addition to the expert evidence, I have been assisted by the BIC SOFAC (Ex 1), the DA ASOFAC (Ex 2) and the Respondent’s chronology (Ex 5). The parties have helpfully provided written submissions which I will refer to as RWS for the Respondent and AWS for the Applicant.

28. It is the agreed position of the building surveyors in JER Building Surveying (Ex 6, 3 volumes) that most although not all, of the material provided by the applicant purporting to demonstrate compliance with the National Construction Code (NCC), also referred to variously as the Building Code of Australia (BCA), cannot be relied on. Therefore, Mr Daintry and Mr Deters have identified a schedule of works that needs to be completed to achieve compliance with the NCC. That schedule of works is included in the JER Building Surveying at Table 2 “NCC Non-Compliances” from pp14 to 25. Relevantly, the experts agree at par 73 of the JER Building Surveying that:

“The Applicant may be able to procure performance solutions where compliance with the Housings Provisions have not been achieved however, we can only observe at the date of this report that there are no Performance Solutions in evidence.”

26. It is also relevant to note that the schedule of works to achieve NCC compliance is not included in the DA except to the extent that there is a deferred commencement condition DC5 requiring a BIC “for all works constructed at the Site that are not in accordance with CDC No. CDC202202MIM” The Applicant does not disagree with this DC5. I come back to Contention 9 below at [54]

27. The BIC SOFAC (Ex 1) contention 1.5 and Contention 1(j) of the DA ASOFAC provide that the stormwater plans and works are inadequate and do not comply with the Council’s Stormwater Management Policy, and the method of stormwater disposal fails to comply with cll 6.3 and 6.9 of the GRLEP.

28. Stormwater management was agreed between the experts to the effect that the Works-as-executed Plan prepared by Ensure Consulting Pty Ltd (Ensure Consulting WAE Plans) dated 10 July 2025 (Appendix 3 to the JER Stormwater Engineering) will need to be updated once verified and following the satisfactory completion of rectification works recommended in response to contention 1.5(c) of the BIC SOFAC (JER Stormwater Engineering at par 6 to 9). The Council submits that until such rectification works are carried out and further information provided, cl 6.3 of the GRLEP is not satisfied and that “the need for such works should also preclude grant of BICs until such works have been completed.” (RWS on Applicable Provisions at par 55).

29. It is also relevant to note that these Stormwater management rectification works are not included in the DA. I have referred to the Proposed/Draft Conditions of Consent at Ex 13 which relevantly addresses stormwater management in the limited way as follows:

30. Three sets of Stormwater plans prepared by HCT Engineering Pty Ltd listed in condition 1 (It appears that sets 1 and 2 are duplicates).

31. Condition 15 Stormwater System: refers to these Stormwater Plans from Conditions 1 to be “assessed as concept only” and requiring final detailed plans of the stormwater drainage system “designed in accordance with … council’s Stormwater Management Policy” without mention of the Ensure Consulting WAE Plans nor mention of the recommended works in JER Stormwater Engineering.

32. Condition 33 requires the Stormwater drainage works Works As Executed drawings to be certified prior to the issue of the Occupation Certificate.

33. The Applicant submits that as each of the sets of experts requires some works to be done, the Applicant attempts to answer the question I posed onsite as to “where in the jigsaw puzzle do those various three sets of works go?” (Transcript 12 August 2025, p 79 at par 30). The Applicant proposes that some of the works in the Architectural Rev E plans (Ex K) can fit within the DA Appeal and gives the example of the removal of the study room as one of the alternations and additions. The other works, suggested by the stormwater engineers set out above at [28] and the building surveyors for NCC compliance set out above at [25], are identified by the Applicant to “more appropriately fit into” the BIC Appeals because they are “pre-BIC works”, or put another way, they are “effectively a precursor to a building information certificate being issued” (Transcript 12 August 2025, p 79 at para 45).

Preliminary question as to the scope of the BIC Applications and whether the BIC Applications apply to the whole or part of the building

33. The Applicant submits that the BIC Applications are “unequivocally for the whole of the building” (Transcript 12 August 2025, p 76 at par 50) and that the evidence in the JERs provide material relevant to the assessment and determination of the BIC Applications (Transcript 12 August 2025, p 76 at par 30).

34. The Respondent submits, on the other hand, that each BIC Application applies to part of the building for each dwelling and is limited to those items identified in the Rev B plans in Ex A to G.

35. To assist in determining this preliminary question or issue in dispute between the parties, the Court has the following relevant documents before it which together should define the scope of each of the BIC Applications:

36. BIC Application form for each dwelling;

37. Architectural Plans prepared by Airlie Designs Issue B dated 24 October 2024 for each dwelling;

38. Statement of Environmental Effects prepared by ABC Planning dated September 2024 (Ex A) (BIC SEE);

39. Class 1 Applications (Ex A to G).

40. The complication and challenge are that works have not been constructed in accordance with the first CDC and it is agreed that the Rev B plans in the BIC Appeals (Ex A to G) do not capture all of the unauthorised works. It is necessary for the Court to determine the scope of the BIC Application because if the BIC Application is for the whole of the building a BIC is issued for the whole of the building which, as articulated by Pain J in Scarf, quoted below at [129], will have the effect of precluding the council from taking any action in relation to all of the unauthorised works not in accordance with the first CDC. On the other hand, if the BIC Application is for part of the building, namely limited only to those unauthorised works identified in the Rev B plans of Ex A to G, then the BIC will be limited to those works only and the council retains the discretion to undertake action as it sees appropriate in relation to the other unauthorised works on the Site.

41. The Respondent’s case is that the Applicant’s BIC Applications are as per Ex A to Ex G and that the Court does not have jurisdiction to amend or modify the BIC. The Applicant agrees that a BIC may not be modified and both parties refer to Scarf.

42. The BIC Application Forms, included in each Ex A to Ex G could be seen to be ambiguous because it is completed in such a way that:

43. states “yes” to the BIC applying to the “whole of building”; and yet also confusingly,

44. lists and describes the structures the BIC would apply to as “Alterations and additions to 2 Mimosa Street South Hurstville”

45. The BIC SEE accompanies each BIC Application “for approval of unauthorised works, as identified by Council, at Nos. 2-14 Mimosa Street, South Hurstville.” The BIC SEE expressly states that it “should be read in conjunction with the architectural drawings and BASIX Certificate prepared by Airlies Designs dated September 2024. I note that the Rev B plans are dated 24 October 2024 and that the Rev A plans were dated 26 September 2024 and are not in evidence. I further note that the BIC SEE includes at pages 22 to 24 Figures 21 to 24 which seem to be a consolidated set of the Rev B plans to cover and include all the dwellings in the one drawing whereas the Rev B plans in Ex A to Ex G apply to the dwellings individually. The plans reproduced in the BIC SEE at figs 21 to 24 on pages 22 to 24 are not in evidence.

“The as-built works subject to this BIC are located at the rear of the site and will not be readily visible from Mimosa Street and Connells Point Road streetscapes.”;

“The as-built works will not alter the existing and approved landscaping along the southern and eastern street frontages of the site”;

and

“The as-built works will not alter the existing and approved driveways, garages, waste management arrangements and stormwater arrangements.”

41. I say that these statements are curious because it is agreed that there are unauthorised works at the front of the Site and the Respondent submits that the way the BIC SEE is drafted supports the conclusion that the BIC Applications do not relate to the entirety of each building, but rather only to those works identified in the BIC SEE and as indicated on the Rev B plans.

42. It seems to be agreed, and in any event I make the finding, that the statements from the BIC SEE quoted above at [40] are not supported by the plans and drawings in evidence before the court because it was clear and obvious that there are other unauthorised works on Site including on the Mimosa Street frontage.

43. The Rev B architectural plans accompanying the BIC Applications are labelled “Alterations and Additions” and include a legend indicating blue cross hatching to identify the specific alterations and red cross hatching to identify the specific additions. These cross hatchings identify works as alterations and additions such as the infilling of the nib wall area in blue, and in red is the addition to the deck.

44. There are unauthorised works, agreed by the Applicant, that are not identified in these Rev B plans as either an alteration or an addition, for example, the planter boxes at the northern boundaries of the constructed dwellings and the alterations and additions along the Mimosa Street frontage. To illustrate this I looked at the BIC Application for 2 Mimosa Street (Ex A) as an example and I reproduce below at Fig 2 an extract of No 2 (notated as Unit 7) from the CDC Ground Floor Plan Page 4 Issue B dated 24 October 2024 (Ex A) which can readily be compared with Fig 3 BIC Rev B plan, and Fig 4 Rev C plan which the experts agree more accurately reflect the works and then Fig 5 being the Rev E plan now part of the DA Appeal (Ex K).

Fig 2: No 2 (notated as Unit 7) extracted from the CDC Multi-Dwelling Housing (Terraces) Ground Floor Plan Page 7 Issue C dated 17 February 2023 (Ex 5)

Fig3*: No 2* extracted from the Building Information Certificate Ground Floor Plan Page 4 Issue B dated 24 October 2024 (Ex A) 3*: No 2* extracted from the Building Information Certificate Ground Floor Plan Page 4 Issue B dated 24 October 2024 (Ex A)

Fig 4***:*** No 2 extracted from Building Information Certificate Ground Floor Plan Page 3 Issue C dated 17 March 2025 (Ex 11) for 2 Mimosa Street

Fig 5*: No 2* extracted from Ground Floor Plan Page 3 Rev E (Ex K)

45. From this comparison exercise I am not able to be satisfied with any certainty how to identify which unauthorised works are to be covered by the BICs sought and to identify which works are then protected from enforcement action by the Council pursuant to s 6.25 of the EPA Act. This alone is fatal to the BIC Appeals because the DA for use must be certain as to what elements are included.

46. The Respondent argues that each BIC Application is not for the whole of the building and instead each BIC Application is limited only to those identified alterations and additions. On the other hand, the Applicant submits that by answering “yes” to the question “Whole of Building” at the top of page 2 on each BIC Application (Ex A to G), the BIC Applications are unequivocally for the whole of the building.

47. In support of the Respondent’s argument that each BIC Application is limited to part of the building, I accept the Respondent submissions as recorded on the Transcript 29 August 2025 p 250 at par 27 that Notwithstanding “yes” to “whole of building”, there are other parts of the application form and the detailed application materials that support the conclusion “it was a smaller series of works”. This is consistent with the cost of works estimated in each BIC which seem substantially less than one would expect the cost of the whole of the building (RWS pp10 and 11).

48. The Respondent’s concern is that the Court is required to determine in BIC Appeals whether to direct the Council to issue a BIC, being a certificate that prevents Council from taking enforcement action and in relation to the northern walls … or other elements, the Council seeks that the “gateway should be left open to the Council to do so and to be determined in proceedings in the proper manner, that may be Class 4 proceedings if it's done that way” (Transcript 11 August 2025, p 11 at par 17). For reasons set out from [119] below, I have determined to dismiss the BIC Appeals so the Respondent’s concern will not be realised, or put another way, the gateway for Council to take prosecution or other enforcement action will be left open notwithstanding the grant of development consent for the use of the as built dwellings including the unauthorised elements.

49. However, to the extent that it is necessary I make the finding that the scope of the BIC Appeals is limited to those parts of the buildings identified in the Rev B plans in Ex A to G because of all the documents which make up the BIC Applications, there is only one single entry on the BIC Application form itself being, “yes” to whole of building, is consistent with the Applicant’s submission. The balance of the content of the BIC application form and the documents in support, including the BIC SEE, are all consistent with the scope being limited to the items identified as alterations and additions in the Rev B plans and expressly exclude any of the works on the Mimosa Street frontage.

Do you need a BIC before the DA consent can be granted?

50. The Applicant seeks a grant of consent for “Part demolition; alterations to existing dwellings; residential use of the as-built attached dwellings and new landscaping” and does not seek retrospective consent for the unauthorised works. Consent is sought variously for

51. use of the works already constructed;

52. the demolition of certain works, such as a study in No 12, the decking on the northern part of the lower roof of No 2 and the pergola and pond in the eastern setback of No 14;

53. alterations to the existing dwellings incorporating changes to the built form along Mimosa Street; and

54. new landscaping.

55. The application for consent for use of the as-built attached dwellings is because the Court is unable to grant consent for works already constructed, which, as readily observed during the onsite inspection on day 1 of the proceedings includes the works for which the BIC Appeals relate as well as additional works already constructed but not included in the BIC Appeals, refer to [45] above when comparing Rev B plans with Rev C and Rev E plans. Also refer to Annexure A to RWS which is an attempt by the Council to provide a summary of the following:

56. The works which the Council submits are the subject of the BIC Appeals (Rev B Plans – Ex A to Ex G);

57. Works as Executed indicated on Rev C plans which are not included in the Rev B plans and not the subject of the BIC Appeals (Ex 11);

58. Summary of the required or recommended works as identified by the building surveyors (Table 2, Ex 6) and the stormwater engineers (Ex 7).

59. I would add, in addition to the Respondent’s summary, the works or design changes sought by the town planners (Ex 8) and as set out in the Deferred Commencement Conditions (Ex 13). There is also the schedule of works the expert building surveyors prepared for the buildings to achieve NCC compliance as well as the stormwater management rectification works agreed between the stormwater expert engineers.

60. This is the challenge the parties have attempted to address and the Respondent’s contention 9 of the DA SOFAC seeks to set out the proper sequence of approvals and certifications and contends that it is “Inappropriate to grant consent to DA without BIC”. I do not agree with the Respondent for the reasons I set out below.

61. At particular (e) of Contention 9, the ASOFAC states as follows:

“The ‘proper sequence’ of assessment to regularise the unlawful erection and use of a building is to assess the application for a BIC before considering whether development consent should be granted for its future use, as this sequence enables a determination to be made about whether the building is fit and properly constructed for its proposed use (Walker v Queenbeyan-Palerang Regional Council [2023] NSWLEC 1031 at [75]).

55. The case Walker v Queenbeyan-Palerang Regional Council [2023] NSWLEC 1031 (Walker*)* cited in Contention 9 of the DA ASOFAC is a non-binding decision by Bradbury AC which dealt with a development application for use of an existing building as a farm building. The Applicants in those proceedings were not legally represented and the counsel for the Council is the same counsel for the Applicant in these proceedings. The Respondent Council in Walker did not contend that the DA must be refused (Walker at [63]) and at [70] Bradbury AC accepts the Applicants’ submission in Walker that “the fact that the Shed was erected unlawfully does not, of itself, preclude the grant of development consent to the use of the Shed as a farm building” but nevertheless concludes that it is “inappropriate to grant consent to the use … unless and until a building information certificate has been issued that regularises the breach of the planning law”: Walker, [71]. Bradbury AC seems to conflate the purpose and effect of a BIC in Wlaker. Pain J in Scarf addresses the purposes and effect of a BIC quoted below at [129] and I adopt that for these proceedings.

56. Relevantly, Bradbury AC qualified his conclusion in Walker with the following statement at [75]:

“With one possible exception discussed below, I have been unable to find any Court decision in which development consent has been granted authorising the use of an unlawfully erected building without a building information certificate having first been issued in relation to the building.”

57. Further, the Respondent submits in RWS at par 17, that in Ireland v Cessnock Council [1999] NSWLEC 250; (1999) 100 LGERA 311 (Ireland No 2) “it was conceded by the applicant that unless the appeal seeking a building certificate succeeded, the appeal seeking development consent for use should fail.” I note firstly that Bignold J did not deal with the question other than note the concession of the parties at [8] and secondly, I observe that since Ireland No 2*,* Preston CJ has delivered a number of judgments which provide further guidance and assistance.

58. Preston CJ collated all the decided law on the question of regularising unauthorised work in Jonah Pty Limited v Pittwater Council (2006) 144 LGERA 408; [2006] NSWLEC 99 (Jonah). At [26] in Jonah Preson CJ refers to Bignold J’s decision of Ireland v Cessnock City Council (1999) 103 LGERA 285 (Ireland No 1) and states:

“26 Bignold J held that s 79C(1)(e) (“the public interest”) does not preclude the grant of development consent to allow the prospective use of an illegally erected building. The grant of consent does not sanction an illegality and accordingly the consideration of “the obligation not to sanction the illegality” was not relevant: at 310 [102]-[104] and see 308 [93].”

59. Put another way, development consent for use does not provide retrospective approval to unauthorised works. Similarly, such a grant of consent does not preclude any prosecution or other action in respect of the works carried out not in accordance with the CDC or carried out without development consent where development consent was required: Jonah at [32]. The unlawful works is relevant to the consideration and assessment of whether they give rise to unacceptable impacts: Jonah at [37] and [38].

60. See also Preston CJ in Ku-ring-gai Council v Buyozo Pty Ltd (2021) 248 LGERA 300; [2021] NSWCA 177 at [41] where he explains as follows:

“41. Consider the example of a building that has been erected not in accordance with the development consent that authorises the erection of the building. Just as another development consent could not be granted to authorise the erection of the already erected building, so too the existing development consent cannot be modified to authorise retrospectively the erection of the already erected building. However, another development consent could be granted or the existing development consent could be modified to authorise the use of the already erected building in the future. The grant of another development consent or the modification of the existing development consent would not cure the breach of s 4.2(1) of the EPA Act of carrying out the development of the erection of the building not in accordance with the development consent, but either approval would authorise the development of the use of that building in the future.”

61. The Respondent refers to the decision of Dickson C in Kate Singleton Pty Ltd & S J Connelly CPP Pty Ltd t/as Planners North v Tweed Shire Council [2025] NSWLEC 1558. Consistent with my finding at [70] below, Dickson C upheld an appeal for the grant of development consent while refusing an appeal for the issue of a BIC. Dickson C also considered arguments for and against the inclusion of a condition of consent sought by Tweed Shire Council which in that case read as follows:

“22. Occupation certificate and/or BIC

Prior to the use or occupation of any building the applicant must demonstrate that it has the benefit of a building information certificate or occupation certificate issued for the buildings identified in the Further Updated Statement of Environmental Effects prepared by Planners North dated 17 June 2025.

Any buildings that do not comply with this condition within 2 years of this consent are to be demolished in accordance with the conditions at Part E of this consent.

Condition reason: To ensure safety and compliance with the NCC/BCA”

62. Dickson C found at [29] to [31] that she was

“29. … satisfied that the Court has the power to impose the condition sought by the Respondent at paragraph [22] pursuant to ss 4.17(1)(a) and 4.17(1)(c) for the reasons advanced by Mr Farrell and summarised at [24].

30. Further, I find that it is appropriate to impose the Respondent’s version of Condition 22 as to do so will ensure that structures do not remain on the site that are not in conformance with the NCC/BCA and the remaining conditions imposed on the development consent. I am satisfied that the period of two years is sufficient to address the recommendations of the BCA Audit Report, and I note the Applicant does not provide any evidence to the Court to support a submission to the contrary.

31. In circumstances where the intent of the Development Application is to regularise the use of unauthorised structures”

63. The Applicant submits in AWS in Reply at para 28, that the mechanism of including the condition 22 quoted above in the matter of Kate Singleton can be employed in the present case in relation to only the issue of a BIC.

64. I reach a similar conclusion in the present case, namely that as the plans and documents accompanying the BIC Applications are inconsistent with the DA, the BIC Applications have, in effect, no utility because they relate to a building in a different form. Also, in a similar line of argument, I would have reached the same conclusion as Dickson C in Kate Singleton to include a condition of consent in substantially the same terms as condition 22 reproduced above at para [61].

65. In that regard, I note that the agreed Deferred Commencement Condition DC1 (Ex 13) requires Accurate Drawings to be provided prior to the consent becoming operational and reads as follows:

“Drawing set 1 – Drawings using the DA drawings Revision E, showing in cross hatching and different colours all proposed demolition and new work and work to ensure compliance with the conditions of this consent, including changes to the landscaping and planter boxes. All changes to, and new finished levels are to be shown.

Reason: To accurately distinguish between the work approved under the First CDC, unauthorised work that will require a BIC and new work, including that for which a construction certificate is required.”

66. Without a BIC, the Applicant will not have the protections pursuant to s 6.25 of the EPA: see Scarf below at [129]. I agree that DC1 is an appropriate step for the Applicant to take in the circumstances of the confusion and uncertainties I had alluded to in this judgment.

67. But for the terms of the agreed Deferred Commencement Conditions DC5 (which provides that a Building Information Certificate must be obtained for all works constructed at the Site that are not in accordance with DCD202202MIM), the Council would not be precluded from issuing a fine by way of a penalty notice, or from otherwise prosecuting a defendant in the local court with Court Attendance Notice or even in the Land and Environment Court by commencing Class 5 proceedings, for the development not in accordance with the CDC and other works without consent. Similarly, the Applicant may seek some protection by way of making a proper application for a Building Information Certificate for those unauthorised works.

68. I distinguish my earlier decision of Wechsler v Lane Cove Council [2023] NSWLEC 1083 where in that case there was uncertainty because of the inability to assess the works the subject of the BIC (Wechsler, para [66] and [73]) Whereas in the present case, the Court has the benefit of expert evidence (Ex 6, 7 and 8) and all the unauthorised works have been considered and assessed. However, as in these proceedings, I held in Wechsler at par 72 that

“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.”

69. I also said in Wechsler at [85] that:

“I accept that the insufficient information issues cannot be resolved by way of a condition of consent where I need the information in the first place in order to undertake the assessment and determination. The Court as a consent authority is required to consider and determine the development application that is being made by the Applicants. (Hunter Industrial Rental Equipment Pty Ltd v Dungog Shire Council [2019] NSWCA 147 at [289])”

70. I find that the court may grant consent for residential use of the as-built attached dwellings without a prior BIC, however, consistent with Dickson C in Kate Singleton, if consent were to be granted, the grant of consent for use should be subject to a condition that a BIC be obtained prior to the issue of an Occupation Certificate. This would go some way to address the jigsaw puzzle challenge as to how to deal with the additional works required for NCC compliance and for stormwater management as recommended by the experts. The Applicant seeks to put the jigsaw puzzle together by resolving the BIC Appeals to include directions from the Court for the Applicant to undertake a schedule of works pursuant to s 6.26(7) of the EPA Act.

71. The Applicant submits in the AWS in Reply at para 31, referencing Ardill Payne & Partners v Byron Shire Council [2023] NSWLEC 1348 (Ardil Payne) that

“in contrast to Ardill Payne, any future works which the Stormwater Engineers and Building Surveyors have identified should be done, are not part of the BIC applications, and the applicant’s acceptance to do those works do not by that acceptance amend the BIC Applications. If that were the case, then no BIC could be granted whenever a council or an expert in Court proceedings informs an applicant of further works required prior to the issue of a BIC.”

72. I come back to the power of the Court below and for reasons I give at [134], I find that the Court does not have the power to make such a direction. The Applicant’s approach is akin to an amber light approach or giving an interim judgment to allow the Applicant to complete the schedule of works.

73. The term ‘Amber Light Approach’ was first coined in Ali v Liverpool City Council [2009] NSWLEC 1327 to describe an approach that had been favoured by the Court at the time. Under this approach, the decision-maker in the Class 1 appeal jurisdiction of the Land and Environment Court would consider whether an otherwise unacceptable development proposal could be approved after making identifiable amendments. If the answer to this question is yes, then the Court may approve the development proposal after the requisite amendments have been made (Vigor Master Pty Ltd v Warringah Council [2011] NSWLEC 1096).

74. Notwithstanding harsh criticism of the Amber Light Approach, Preston CJ in Ku-Ring-Gai Council v Bunning**s Properties Pty Ltd (2019) 236 LGERA 35; [2019] NSWCA 28 distinguished the Amber Light Approach and the making of an interim judgment. In Bunnings, the Commissioner in first instance gave two judgments. In the first judgment, the Commissioner found the proposed design to be unacceptable and thus the appeal would be dismissed unless the Applicant takes up an offer to amend the design. The applicant took up the offer and the Commissioner approved the amended design in the second judgment. By contrast to the Amber Light Approach, Preston CJ found the first judgment to be an ‘interim judgment’, which is a permissible way for the Court to exercise its functions.

75. The finding of the Commissioner in the interim judgment of Bunnings Properties Pty Ltd v Ku-ring-gai Council [2016] NSWLEC 1658 (Bunnings Interim Judgment) was that after considering the evidence from the experts and with the benefit of a site inspection, he was not satisfied that the proposed development in the form presented to the court was acceptable. Consistent with the Respondent’s submission in these proceedings, the proposed development of alterations and additions to and the use of the 7 attached dwellings, in some form, is capable of being carried out on the Site and in considering the evidence and the development standards of the GRLEP, that design changes can be made to the 7 attached dwellings to address those standards: Bunnings Interim Judgment at [104] and [108].

76. Accordingly, notwithstanding the criticism of the Amber Light Approach, the Court can still ‘invite’ amendments to be made after a hearing, make suggestions as to appropriate amendments to be made, and consider the amended application in the final judgment.

77. Therefore, having considered all the expert and documentary evidence for the 8 appeals, and having considered the submissions of the parties, I conclude that development consent could otherwise be granted for use and alterations and additions but not in the form currently sought by the Applicant for the reasons given by the experts. The Court, as consent authority, is required to determine the DA that is presently being made by the Applicant ( [85]).

The DA Appeal

79. I now set out my reasons for refusing the DA Appeal.

80. The Development Application was amended during the proceedings. The Court notes the approval of the Respondent, pursuant to s 38 of the Environmental Planning and Assessment Regulation 2021 (NSW), to the application for an amendment to the development application DA2024/0451 made on 12 August 2025, for the Applicant to rely on the documents and plans in Ex K specified as follows:

81. Part Survey Ref 6352-DET Showing detail and Levels at No 2 Mimosa Street, South Hurstville being Lot Y in DP 417964 Issue Initial dated 28 April 2021, Sheets 1 and 2 (Tab B1 of Ex K);

82. Survey Drawing No 221170 DE-01 Rev B dated 22 December 2022 Plan Showing Levels, Details and Contours over Lot 69 in DP 6282 22 Mimosa Street, South Hurstville (Tab B2 of Ex K);

83. Previous DP 1290885 Plan of Easement over Lot Y in DP 417964 Registered 18 January 2023 Sheet 1 of 1, Deposited Plan Administration Sheet (3 sheets) (Tab C1 of Ex K);

84. Current DP 1304464 Plan of Subdivision of Lot 1 in DP 1290835 Registered 10 July 2024 Sheet 1 of 1, Deposited Plan Administration Sheet (3 sheets) Instrument s88B Easement to Permit Encroaching Structure to Remain 0.9 Wide (A) (Tab C2 of Ex K);

85. Architectural Drawings 24-104 Issue E dated 10 June 2025 (Tab D of Ex K):

(a) Drawing Nos. 0 Cover page; 1 DA for Use Site Plan; 2 DA for Use Building Separation; 3 DA for Use Ground Floor Plan; 4 DA for Use First Floor Plan; 5 DA for Use Roof Plan; 6 DA for Use South Elevations; 7 DA for Use Elevations/Sections; 8 DA for Use Alterations; 9 DA for Use Alterations;

6. Sun Study: Sun Views Diagram June 21st SV-01, SV-02, SV-03 and SV-04 dated 10 July 2025 (Tab E1 of Ex K);

7. Sketch for Identification Purposes No 2 – 14 Mimosa St South Hurstville Lots 11 to 17 in DP 1304464 Drawing No 221170 SK-05 dated 12 August 2024 prepared by Ensure Consulting Pty Ltd (Tab E2 of Ex K);

8. Calculations Summary Sheet, undated (Tab E3 of Ex K);

9. Letter from HCT Engineering re Lounge Wall and Slab Modification, “Technical Considerations for the Relocation of Double-Glazed Floor-to-Ceiling Window”, undated (Tab E4 of Ex K);

10. Landscape plan prepared by Melissa Wilson Landscape Architect, Issue B dated 16 July 2025 Drawing No LS00 Cover Page, LS01 Site Plan, LS02 Ground Floor Units 2 to 8, LS02.1 Ground Floor Units 10-14, LS03 Plant Species, LS04 Notes, LS05 Typical Details (Tab E5 of Ex K);

11. Letter from Ensure Consulting Pty Ltd dated 16 July 2025 attesting all fencing on or within boundaries (Tab E6 of Ex K).

12. I accept the Respondent’s submission that “the plans are inconsistent and unclear”. By way of example, I note that the Rev E Architectural drawings do not identify the unauthorised changes to the Mimosa Street frontage of the development from the first CDC, and I note that the design changes sought by the Respondent to the Mimosa Street frontage remains in dispute between the parties. I reproduce below two of the Rev E architectural drawings which clearly do not show any markings on the Mimosa Street frontage of the development at Fig 6 and Fig 7 as ‘changes to the built form from the CDC’ other than on the first floor ‘planter boxes’ and in relation to the ‘proposed changes to be built’ there is no ground floor drawing to show the changes depicted in the Landscape Plans LS02 and LS02.1 Issue B. Similarly, there is no Landscape plan for the first floor.

Fig 6: excer**pt from Ground Floor Plan Page 3 Rev E (Ex K)

Fig 7*: except from DA for Use Alterations* Page 8 Rev E (Ex K)

82. The parties filed Draft/Proposed Conditions of Consent with “Agreed consolidated comments” (Ex 13). Those comments address the conditions remaining in dispute between the parties which are limited in large part to the deferred commencement design changes sought by the Respondent. The design changes in dispute are the following:

83. Relocation of living room extension (Planning DC3a) which I address in my merit assessment regarding the built form below;

84. Glazing above sliding doors on ground floor – translucent film or translucent glass (Planning DC3c, d, e, f) which I address in my merit assessment regarding amenity below;

85. Width of the landing to bedroom 2 of dwelling 6 Mimosa Street (Planning DC3d(iii)) which I address in merit assessment regarding landscape outcome below;

86. Wall and landscaping treatment to Connels Point Road frontage of 14 Mimosa Street (Planning DC3(g)), Landscaping DC3(a) front steps and Landscaping DC3(d) rear alfresco decks which I deal with in my merit assessment regarding the landscape outcome below.

Merit assessment generally

83. The Respondent’s case on the merits of the Proposed Development and the notional assessment of the BIC Appeals focuses on the impacts resulting from the unauthorised filling in of the “nib wall” area and the erosion generally of landscaping area throughout the Site.

84. The Statement of Environmental Effects prepared by ABC Planning dated September 2024 (DA SEE) filed with the DA Class 1 Application (Ex H) was prepared for the DA “for the use of the as-built additional and reconfigured rooms of Dwellings no. 2 to No. 14” and includes a section in the DA SEE titled ‘Assessment under relevant controls”. However, that section erroneously identifies the planning instrument as relevant to the DA to be “SEPP (Exempt and Complying Development Codes) 2008”.

85. The terms and provisions of the Codes SEPP are not relevant to the DA Appeal. As set out in the decision of Preston CJ in Kingfisher Properties Pty Limited v Northern Beaches Council [2025] NSWLEC 39 (Kingfisher), the merit assessment is pursuant to the standards and controls set out in the GRLEP and the Georges River Development Control Plan 2021 (DCP), not the Codes SEPP. Preston CJ explains at [9] in Kingfisher as follows:

“… To be exempt development, the development must be specified in an exempt development code, meet the standards specified for the development, and comply with the requirements of Division 2 of Part 1 of the Exempt and Complying Development SEPP: cl 1.15(1) of the Exempt and Complying Development SEPP. Carports are specified in the exempt development code for carports in Subdivision 10 of Part 2 of the Exempt and Complying Development Code. The carport erected by Kingfisher did not comply with all of the development standards specified for carports in s 2.20(1) of the Exempt and Complying Development SEPP. Hence, it was not exempt development and development consent was required. In this circumstance, the development standards specified in s 2.20 of the Exempt and Complying Development Code did not regulate the carport erected by Kingfisher. Those development standards would only regulate the carrying out of the carport if it was exempt development.”

86. The DA SEE does not assist the Court because it does not provide any assessment under the standards and controls of the GRLEP nor the DCP, nor any other SEPP.

87. I now go on to the assessment of the DA Appeal and the notional assessment of the BIC Appeals and I group the contentions as follows:

88. Built form: DA ASOFAC contentions 2 (FSR development standard 0.7:1)), Contention 4 (Built form), and BIC SOFAC Contention 1.6 Amenity impacts;

89. Landscape outcome: DA ASOFAC contention 3 (landscape outcome cl 6.12 GRLEP), and;

90. BIC SOFAC 1.6 Amenity impacts.

Merit assessment - Built form: requirement to satisfy jurisdictional prerequisite

88. In Contention 4 of the DA ASOFAC, the Respondent contends that “the building form that as a result of the unauthorised work, results in excessive building on the Site, the use of which cannot be supported”. In Contention 1.6 of the BIC SOFAC, the Respondent contends that “the BIC Applications should be refused because the Works as built result in dwellings with a greater height and an increase in floor space that contravenes cll 4.3A and 4.4(2) of the GRLEP, and result in unacceptable amenity impacts to neighbouring properties.”

89. The Respondent acknowledges that the exceedance of the 0.7:1 FSR development standard cl 4.4 of the GRLEP is caused by the existing as built building on the Site, and that if anything, the alterations and additions proposed in the Rev E plans dated 10 June 2025 pages 8 and 9 “DA for Use Alterations” (Ex K), will reduce the FSR, at least in relation to Dwelling 12, by demolishing the study. Nevertheless, it is agreed that the Proposed Development will continue to contravene the FSR development standard notwithstanding the proposed demolition of the study in dwelling 12.

90. In relation to the requirement to satisfy the jurisdictional prerequisite of cl 4.6(3) of the GRLEP, the Respondent submits that “it follows that the development itself does not involve a contravention of the FSR development standard as it does not increase the exceedance”. To support this submission, the Respondent and the Applicant rely on the decision of Duggan J of Landcorp Australia Pty Ltd v The Council of the City of Sydney [2020] NSWLEC 174 at [57] to [58] which I reproduce below as follows:

“57. This does not have the consequence that only wholly new buildings will be the subject of the development standard in this clause. In some cases this may be where an alteration to an existing building alters the nature and extent of an existing exceedance, or, where a compliant existing building is altered such that it exceeds the Height of Buildings Map. However, where development is related to a part of an existing building and the introduction of that development does not alter the height of the building the context does not indicate that the clause would operate relevantly on that development.

58. Contrary to what was submitted by the Council this clause cannot be construed by a consideration of the merits or the particular characteristics of a building that exceeds the height provided for in the map. The Council’s suggestion that the text of this clause applies even where there is no increase in height proposed, because in this case the quality of views and the relationship to heritage buildings and special character areas are relevant considerations and the relationship of height to those features, is referenced in the objectives of the clause. Those features are identified in the objectives as the reason why the clause is formulated and the heights fixed in the map are determined; they are not drafted to identify circumstances in which the provision of the control will operate. That is, it is not intended that a merit consideration of impacts would be necessary to determine if the clause is operative on a particular development. Whether the clause applies is intended to be objectively ascertained. The height of a development and the impact on matters such as the views and the relationship to heritage areas may be relevant to the consideration of the merits under s 4.15 of the EP&A Act but it does not have the consequence that it is subject to the operation of the development standard and requires a variation pursuant to cl 4.6 of the LEP to be permissible development.”

91. I accept and find that the ultimate FSR of the Proposed Development will remain in contravention of the development standard, and I accept that the FSR contravention will be reduced from that of the existing as built building. However, I reject the Respondent’s submission that the Proposed Development does not involve a contravention of the FSR development standard because the Respondent is not answering the right question, namely what is the development and whether that development can be carried out in accordance with the GRLEP: s 4.2(1), EPA Act. Instead, the Respondent undertakes a before and after comparison and the Respondent’s submission relies on demolition as the relevant development for which consent is sought. The relevant development which attracts the FSR development standard is the residential u**se of the as-built attached dwellings. Consistent with Duggan J’s finding in Landcorp at [57], I find that although the development is related to existing buildings, the relevant development for which consent is sought is for the use of the existing building as a whole which is a development that contravenes the FSR development standard and therefore the context does indicate that cl 4.4 of the GRLEP would operate relevantly on that development.

92. The terms of cl 4.6 of the GRLEP are facultative because the clause relaxes the prohibition of the granting of consent when a development standard is contravened provided certain things are demonstrated by an applicant. Accordingly, I conclude that the Applicant is required to demonstrate the matters set out in cl 4.6(3) of the GRLEP in order to empower the Court to exercise its jurisdiction to grant development consent for the use of the buildings as a whole. As the Applicant has not demonstrated that compliance with the FSR development standard is unreasonable or unnecessary in the circumstances nor that there are sufficient environmental planning grounds to justify the contravention of the FSR development standard, I conclude that I do not have the power to grant the consent as sought pursuant to cl 4.6(3) of the GRLEP. I reach the same conclusion in relation to the landscaping development standard below at [108].

93. I briefly address the dispute regarding the nib wall. The town planning experts did not reach any agreement, and Ms Warton recommends at para 187 of the JER Planning (Ex 8) as follows:

“If it is decided that for structural reasons removal cannot be achieved (and that is not demonstrated in the letter) then at least the glass line should be moved back to the location as approved in the First CDC. This would provide some attenuation to the continuous alignment of the rear façade, and improve the perception of the dominance of building.”

94. The Supplementary JER Building Surveyors (Ex 10) attempts to deal with this recommendation and considers the Applicant’s Structural Engineer Hoang (Frank) Nguyen undated letter on HCT letterhead (Ex K at Tab E4), the Respondent’s Civil, Structural, Hydraulic and Acoustic Engineer, Peter Robert Scott Blacker dated 8 August 2025 and the email from Mr Deters to the Applicant’s solicitor and barrister dated 22 July 2025.

95. Mr Nguyen recommends retaining the glazing as built “given the structural risk, waterproofing challenges, and construction complexity” (Supplementary JER Building Surveyors, para 22). Mr Deter generally agrees with Mr Nguyen’s water proofing concerns. At para 24 Mr Daintry observes that

“The engineering opinions do not address the northern orientation of the rear facades relative to prevailing southerly wet weather, the potential weather-protection and shading benefits of retaining the existing roof overhand by recessing the windows. In the event the Court see it desirable to recess the glass line for planning reasons BD’s opinion is that it can be achieved whilst maintain weatherproofing and water proofing of each dwelling as well as providing weather protection and shading benefits by maintain the roof overhang. That is, if it needs to be done to address planning impacts, it can be done, it is simply a matter of construction detail.”

96. In cross examination as to what Mr Daintry meant regarding “it is simply a matter of construction detail”, Mr Daintry repeats his opinion at paras 39 and 40 of the Supplementary JER Building Surveyors.

97. Having considered the evidence and expert opinions on whether the glazing should be recessed I find that on balance the glazing as built could be retained because the relatively small impact attenuation does not outweigh the risk to the structural integrity of potentially compromising the waterproofing.

Merit assessment – landscape outcome: requirement to satisfy jurisdictional prerequisite

98. The Council contends that the landscaping outcome is poor. Contention 3 of the DA ASOFAC relies on cl 6.12 of the GRLEP which includes numerical and qualitative development standards regarding landscaping. The BIC SOFAC Contention 1.6(c) to (e) under the heading ‘Amenity Impacts’ also relate to this landscaping provision and is repeated in Contention 3 of the DA ASOFAC at particular (g). The deficiencies in the as built landscape outcome are summarised in particulars (c) and (d) of Contention 3 of the DA ASOFAC

99. These landscaping contentions are dealt with by the Town Planning experts, Mr Betros and Mr Warton in the JER Planning (Ex 8) from p 38.

100. The Respondent acknowledges that the relevant DCP control for private open space is 40m2 and this is met for each dwelling. Mr Betros conceded in oral evidence that his figure of 16m2 which he quotes in the JER Planning at par 172 for private open space is incorrect.

101. Consent is sought for n**ew landscaping in accordance with the Landscape plans prepared by Melissa Wilson Landscape Architect dated 16 July 2025 annexed and marked F in the JER Planning (Ex K, Tab E5) as well as alterations to existing dwelling, accordingly, I accept the evidence of Ms Warton at par 132, JER Planning and I am satisfied that the terms of cl 6.12 of the GRLEP apply to the DA Appeal.

102. The numerical development standard is set out at cl 6.12(5) of the GRLEP for minimum landscaped area of 20% of a site for development in the Zone R3 Medium Density Residential. The amount of landscaping as approved by the First CDC was 33.7% across the whole Site. However, following the construction of the 7 dwellings, the amount of landscaping area for each dwelling has reduced so that none of them comply with the GRLEP minimum landscaped area development standard of 20%. It is not clear what the new landscaping proposed site coverage will be but the parties both agree that it will less than the 20% minimum landscaped area development standard. Council agrees that the landscaping plans in Ex K represent a substantial improvement and notes that Mr Betros concedes in oral evidence that there is some confusion as to what is proposed.

103. In addition to the numerical development standard for landscaping provided in cl 6.12(5) of the GRLEP, the terms of cl 6.12(4) GRLEP jurisdictional prerequisite provides as follows:

(4) Development consent must not be granted to development on land to which the clause applies unless the consent authority is satisfied that the development—

(a) allows for the establishment of appropriate plantings—

(i) that are of a scale and density commensurate with the height, bulk and scale of the buildings to which the development relates, and

(ii) that will maintain and enhance the streetscape and the desired future character of the locality, and

(b) maintains privacy between dwellings, and

(c) does not adversely impact the health, condition or structure of existing trees, tree canopies or tree root systems that are to be retained as part of the development on the land or adjacent land, and

(d) enables the establishment of indigenous vegetation and habitat for native fauna, and

(e) integrates with the existing vegetation to protect existing trees and natural landscape features such as rock outcrops, remnant bushland, habitats and natural watercourses.

104. Ms Warton provides her assessment of the Proposed Development against the qualitative and quantitative provisions of cl 6.12 in the JER Planning from p 44 (paras 148 to 162). Mr Betros provides his assessment of landscaping in JER Planning (Ex 8) at p 49 from paras 166 to 170 and at para 164 Mr Betro cites a 10% landscape area requirement for lots under 300m2 (noting that the lot areas vary between 200m2 and 234.7m2) for “comparison purposes only”. I agree with the Respondent that Mr Betros is in error when he relies on the 10% landscape area requirement because this is the Codes SEPP control which is not applicable to the DA Appeal.

105. Mr Betros’ assessment may be a misrepresentation of the task for the Court in assessing and determining the DA Appeal and undertaking the notional assessment for the BIC Appeals. Accordingly, his opinion at par 167 that “the proposed extent of landscaping and associated streetscape outcome is acceptable” does not assist the Court in determining these appeals.

106. Accordingly, I accept the evidence of Ms Warton who sets out a thorough assessment against the terms of cl 6.12 of the GRLEP in JER Planning from paras 148 to 162.

107. The Respondent submits in RWS at paras 139 and 140 that “the development standard is not triggered by the actual DA as the development does not result in an increased building footprint” and that “as noted in respect of FSR above, the lack of a nominal cl 4.6 variation request in the BIC appeals is not fatal to the application, but does not assist the Applicant.” I reject the Respondent’s submission because when determining whether to apply the terms of cl 4.6(3) of the GRLEP, the test is not whether there is any change to the foot print of the building. The test is whether the Court, as consent authority, is being asked to grant development consent to development that contravenes a development standard. Development consent is sought for new landscaping and for alterations to existing dwelling and also for residential use of the as-built attached dwellings, and I find that all of these contravene the landscape development standard in cl 6.12 of the GRLEP.

108. I acknowledge that the proposed new landscaping is an improvement on the existing landscaping, or put another way will increase the landscaped area on the Site, however, for the same reasons given above in relation to the FSR development standard at [91], the relevant development for which consent is sought is both for new landscaping and also for the use of the existing as-built dwellings as a whole, and both of these developments contravene the minimum landscape area development standard. Therefore, the context does indicate that cl 6.12 of the GRLEP would operate relevantly on either or both of those developments.

109. Accordingly, I conclude that the Applicant is required to demonstrate the matters set out in cl 4.6(3) of the GRLEP in order to empower the Court to exercise its jurisdiction to grant development consent for the use of the buildings as a whole. As the Applicant has not demonstrated that compliance with the landscape development standard is unreasonable or unnecessary in the circumstances nor that there are sufficient environmental planning grounds to justify the contravention of the landscape development standard, I conclude that I do not have the power to grant the consent as sought pursuant to cl 4.6(3) of the GRLEP.

“To increase the minimal landscaped area; and the indented landscape beds will reduce the dominance and improve the streetscape.”

111. The reason given in Ex 13 for DC3 Design changes – Landscaping is:

“To improve the landscape outcome and streetscape; to better address the development standard and qualitative threshold in order to grant consent in clause 6.12 of GLEP 2012.”

112. I have considered the Landscape plans prepared by Melissa Wilson Landscape Architect dated 16 July 2025 in Ex K, Tab E5 and note that the ‘cut outs’ depicted in Landscape Plan LS01 are not replicated in Landscape plans LS02 and LC02.1. The parties were unable to agree on the Deferred Commencement Condition terms.

113. Accordingly, I make the following findings and conclusions on the landscape contention:

114. Uncertainties remain with the final landscaping outcome because of the disagreement as to the content of the deferred commencement conditions.

115. Conclude that the changes sought by the Respondent in DC3(g) and DC3 Design changes – Landscaping should be imposed on a merit assessment.

116. The development for which consent is sought requires compliance with the landscape development standard in cl 6.12 of the GRLEP or demonstration of the matters pursuant to the terms of cl 4.6(3) of the GRLEP. The court does not have the power to grant the consent to the new landscaping or the use of the residential development as a whole because the development standard in cl 6.12 of the GRLEP is contravened and the Applicant has not demonstrated the matters set out in cl 4.6(3) of the GRLEP.

Merit assessment – amenity impacts: privacy of neighbours

114. The final merit contention relates to BIC SOFAC Contention 1.6 (a) privacy and amenity of neighbours. I am satisfied that this impact is adequately resolved by the Rev E Architectural Drawings and the agreed design changes,

115. The potential light spill concern is resolved by the agreed treatment of the ground floor glazing above the rear sliding doors of most of the new dwellings, although I do note that the parties have been unable to agree on the terms of nature of translucent glazing (fixed translucent glazing or the application of translucent film to the existing glazing) in DC3 Planning, Ex 13. Either way, the light spill impact will have been mitigated.

116. The Applicant has provided a written request pursuant to cl 4.6 of the GRLEP prepared by G Betros to justify the contravention of minimum lot size development standard cl 4.1B of the GRLEP (Ex S) which is not objected to by the Respondent. The Applicant submits that the minimum lot areas set out in the table to cl 4.1B(2) of the GRLEP requires a minimum lot area of 800m2 for development for the purposes of attached dwellings and that as cl 4.1B is within Pt 4 of the GRLEP dealing with development standards, the decision of Duggan J in Landcorp is relevant where Duggan J considered cl 4.3 regarding height of buildings in the Pt 4 of the Sydney Local Environmental Plan 2012 and held at [56] as follows:

“The context of this clause is that it is located in that part of the LEP which is directed to the provision of development standards for new development. It manages change. To read the clause in this context it can only be relevantly operative where the development proposed creates some exceedance to the height of a building as objectively determined by reference to the objective means of measuring height as provided for in the LEP.”

117. The Applicant’s submission in AWS par 83, that “in the present case, the current DA is not for new development, but for a use of such development” is incorrect because the DA seeks consent for “part demolition; alterations to existing dwellings; residential use of the as-built dwellings and new landscaping” (Ex 13). However, I do accept that none of the types of development for which consent is sought is related to subdivision, and I conclude, consistent with Duggan J’s finding in Landcorp at [57] that in this context, the cl 4.1B of the GRLEP does not operate relevantly on that development. Put another way, a cl 4.6 written request is not required because cl 4.1B of the GRLEP is not applicable to the development application.

118. I now, finally, set out my reasons why I reach the conclusion to dismiss the BIC Appeals.

BIC Appeals and the power of the Court

119. The Respondent’s case is that there are four threshold reasons why the BIC Appeals should be dismissed and says that “before you even got onto the issue of merits of the works” all of those fundamental threshold issues are reasons why the BIC should not issue. I have dealt with the issue of merits of the works above. I summarise the Respondent’s four threshold reasons as follows:

120. It is agreed that the works, the subject of each BIC Application are not adequate and that further works are needed in order to achieve compliance with the NCC (NCC works).

121. There is no power to amend a BIC Application: Scarf*,* and as some of those NCC works will result in physical changes to the works the subject of the BIC Applications, the completed works should be the subject of a new BIC application.

122. The BIC does not cover all of the unauthorised works, and it would be premature to grant development consent for the use of the residential dwellings.

123. There remains uncertainty as to the true scope of the works required in terms of potential performance solutions to achieve NCC compliance and also in terms of further investigation being required to determine the nature and extent of works required to achieve NCC compliance. Also, there remains inconsistency or ambiguity as to the nature of the existing works. Until that ambiguity is resolved, the Court does not know “what it would be issuing a BIC in relation to” (Transcript, 29 August 2025, p 254 at par 10).

124. The BIC Appeals before the Court are listed below as follows:

125. 2 Mimosa Street: Portal Application Number BIC-35181 (2025/00127452);

126. 4 Mimosa Street: Portal Application Number BIC-35182 (2025/00127498);

127. 6 Mimosa Street: Portal Application Number BIC-35183 (2025/00121286);

128. 8 Mimosa Street: Portal Application Number BIC-35220 (2025/00127534);

129. 10 Mimosa Street: Portal Application Number BIC-35186 (2025/00127552);

130. 12 Mimosa Street: Portal Application Number BIC-35187 (2025/00127636); and

131. 14 Mimosa Street: Portal Application Number BIC-35190 (2025/00127657)

132. It is necessary to establish what was approved in order to assess the BIC Appeal. The Court has before it in evidence the CDC Number CDC202202MIM dated 24 February 2023 (Ex 5, Tab 1) and CDC plans Drawings 0 to 16 prepared by Airlie Designs dated 17 February 2023 Issue A but annotated in the title block as Issue C Party Wall Amendments (Ex 5, Tab 2)

133. What was actually constructed is attempted to be captured by the Applicant in the BIC Applications which relies on the Rev B plans in Ex A to Ex G. The Respondent tendered Rev C plans and submits that although still not accurate, the Rev C plans better reflect what has been constructed. However, the Respondent goes further and submits that these Rev C plans also serve to confirm that the DA Appeal should be refused because of the unresolved ambiguity and lack of certainty when considering the Rev E plans which show different level heights for the finished floor levels of the first floor in relation to a number of the dwellings. I accept and find that there is inconsistency in the material before the Court and note the parties attempt to address this by including a deferred commencement condition (Ex 13) to the effect of requiring accurate drawings “to accurately distinguish between the work approved under the First CDC, unauthorised work that will require a BIC and new work, including that for which a construction certificate is required.” (DC1 of Ex 13)

“1. The updated Works-as-executed Plan (Appendix 3) generally addresses the missing information.

2. The additional detail allows for a complete assessment of both the internal drainage system and the relocated inter-allotment drainage system.”

124. The Respondent’s stormwater engineer expert, Mr Lam at par 6 goes further and states that:

“an updated WAE plan must be prepared to verify the alignment of the as-built interallotment drainage pipe. This plan must include details of the pipe size, grades, the point of discharge and connection to the Council’s stormwater network.”

125. In any event, and putting aside for a moment the arguments as to the scope of the BIC Applications, the parties agree that, in accordance with the expert evidence, works are required to be done before any BIC Application can be approved. The BIC Applications before the court apply to the site before those works are done and the Site will be different following the carrying out of those works. As there is no ability to amend a BIC Application, the Applicant will be required to make a new application for a BIC for the building that results from carrying out those works.

126. The Respondent’s submits in RWS paras 65 to 86, that there are a number of reasons why the Court does not have the power, or why it is otherwise inappropriate for the Court to make orders as sought by the Applicant regarding the proposed works schedule. The Respondent submits that is it important to consider the overall structure of the regime for building information certificates and I summarise the submissions as follows: (Transcript p 254)

127. No express power in s 8.25 of the EPA Act, nor is there any such power vested in a Council in Pt 6, Div 6.7 of the EPA Act (ss 6.22 to 6.26, EPA Act) to direct a party to carry out works.

128. To the extent that s 39 (2) of the Land and Environment Court Act 1979 (NSW) (LEC Act) may confer upon a court additional functions of the Council in respect of determination of the BIC Appeals, that section does not confer powers that the Council itself does not have. Relevantly, the Court cannot issue a BIC, it can only direct the Council to issue a BIC: s 8.25(3)(a), EPA Act, see also Scarf at [39] and at [48].

129. To imply a power to direct a person to carry out works from the text of s 8.25(3)(c) of the EPA Act, being an appeal with respect to an administrative decision to decline or issue a BIC, is to imply a broad power on the Court in proceedings under that section analogous to those exercised in a civil enforcement context dealt with in Pt 9 of the EPA Act, such as development controls orders and Class 4 proceedings seeking orders to ‘remedy or restrain’ breaches of the EPA Act.

130. Some of the works required by the building surveying and stormwater experts may of themselves require development consent or other approvals.

131. Similar to the Court’s earlier decision in Ardill Payne, ‘regardless of whether the initial application is taken to refer to only alterations and additions specified in the Rev B plans (as Council contends), or the whole of each dwelling (as the Applicant contends). On the facts of this case, the Applicant is seeking by way of the Works Schedule to have a BIC ultimately issue in respect of works in a different, future form that does not currently exist, and which are not depicted on any plans in the application, which is beyond power.” (RWS, par 82)

Legal principles relating to BICs:

128. It is long understood that when determining an appeal against the refusal to issue a BIC, the Court undertakes a two step process as articulated by Bignold J in Ireland No 2, namely:

129. Asking the question whether the building or that part of the building it structurally sound and or otherwise compliance with the NCC (formerly and commonly still referred to as Building Code of Australia or BCA); and

130. Undertaking a notional DA assessment of the BIC, or asking, had a development consent been sought for the building or that part of the building the subject of the BIC, would it have been granted on its merits? I note that the notional or hypothetical DA assessment does not extend so far as requiring an assessment pursuant to a strict application of s 4.15(1) of the EPA Act, but the need for assessment of the impact of the structures the subject of the BICs in circumstances where such an assessment is relevant in the circumstanced of the case to the exercise of the Court’s discretion (Chahbra v Ku-ring-gai Council [2021] NSWLEC 1009 at [77])

131. The statutory framework of a BIC is set out by Pain J in Scarf and at [57] states that “no express power exists in the EPA Act to enable modification of a BIC”. Then at [64] to [67] in Scarf, Pain J goes on to say as follows:

“64 … 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.

65 Secondly, neither set of plans clearly identified what was sought within the legal framework for what can be considered in either appeal. The plans filed to support each of the motions failed to identify in any comprehensible way how they supported the respective applications. For the Modification Appeal the plans failed to identify what was built in accordance with DA17/1157, what had been built without the authority of that development consent, and presumably therefore for which use was sought, and what new work consent was being sought for if any.

66 The BIC Appeal plans which largely overlapped the Modification Appeal plans had the same two difficulties. Any new work is irrelevant to such an application.

67 Further, as identified in the evidence of traffic engineer Mr McLaren (see [22] above) and town planner Mr Swan (see [23]-[26] above) referred to in Mr Brickhill’s affidavit there are numerous deficiencies with the plans for both appeals. Rather than clarifying matters the state of the plans introduces more uncertainty.

130. The Applicant does not seek to amend the BICs however the Applicant relies on the evidence in the Joint Expert Reports as material relevant to the assessment and determination of the BIC applications (Transcript 12 August 2025, p 76 at par 30).

131. At the outset, it is clear from the evidence, and I find that all of the BIC Applications before the Court fail the first step for the reasons given by the building surveyor experts and the stormwater engineer experts.

132. It is agreed that there are numerous NCC non compliances and the Court is assisted by the written and oral evidence expert building surveyors. There remains some uncertainty as to the implementation of the NCC schedule of works because there are no performance based solutions put forward by the Applicant.

133. The Applicant’s solution or response to this evidence is as per AWS and reliance on the provisions of ss 8.25(3) and 6.26(7) of the EPA Act. I will now give my reasons why I conclude that the Court does not have the power to make the orders sought by the Applicant.

Power of the Court on BIC Appeal

134. To hear and dispose of the appeals, s 39(2) of the LEC Act, provides that the Court has “all the functions and discretions which the person or body whose decision is the subject of the appeal had in respect of the matter the subject of the appeal.” Accordingly, in considering both the BIC Appeals and the DA Appeal, the Court has all the functions and discretions of the Council in determining the building information certificate application and in determining whether to grant development consent.

135. The BIC Appeals are made pursuant to s 8.25 of the EPA Act and Pain J set out in Scarf what the effect of a BIC has under s 6.25 of the EPA Act.

136. The Applicant seeks orders and submit that the Court would exercise 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. The Applicant relies on the decision Chami to support that submission.

137. In order to entertain the Applicant’s submission, I have referred to the statutory regime which I had summarised in Ardill Payne at par [51] to [55] which includes the Scarf par [64] quoted above.

138. The Applicant also relies on Chhabra, a decision of Gray C which predates the decision of Pain J in Scarf and for that reason provides little assistance in these proceedings.

139. In Chhabra, Gray C dealt with an appeal against a development control order issued pursuant to s 9.34 of the EPA Act and an appeal against the refusal to issue a BIC pursuant to s 6.25 of the EPA Act. In that matter, “counsel for Mrs Chhabra, submits that on the order appeal, the order can be stayed pending the issue of the building information certificate or modified to require the carrying out of the above works. The applicant’s position is that if (1) and (3) are not carried out, the building information certificate will not issue, and the order will come into effect to require the deck to be brought into compliance with the SEPP ECDC.” (Chhabra at [6])

140. One stark difference between Chhabra and these proceedings is that these proceedings do not include an appeal against a development control order which might have been a vehicle for some of the NCC works. Ultimately, in Chhabra, Gray C dismissed the BIC Appeal and upheld the DCO Appeal, modifying the DCO issued by the Council to extend the time for compliance to 60 days from the date of her orders thereby requiring the removal of the unauthorised rear deck. The reason given by Gray C in Chhabra for dismissing the BIC Appeal relates to the adverse or unacceptable impacts of the unauthorised rear deck on the management of stormwater within the site. ( at [40]).

Conclusions and findings

142. A BIC should not issue for the current building of any of the seven dwellings because:

143. there is uncertainty as to the scope of the BICs;

144. NCC works are required to achieve structural integrity.

145. Following a merit assessment, the DA Appeal and BIC appeals are capable of being resolved satisfactorily but not in the present form as being made by the Applicant because:

146. There remains uncertainty as to the ultimate form of the Proposed Development regarding the scope of new landscaping;

147. The NCC works and stormwater works are not including in the development for which consent is sought; and

148. the FSR and landscape development standards are contravened and the matters in cl 4.6(3) of the GRLEP have not been demonstrated in order to empower the court to grant development consent for the residential use of the as-built attached dwellings.

Orders in DA Appeal:

144. The Court orders:

145. The appeal is dismissed.

146. Development Application DA2024/0451 for Part demolition; alterations to existing dwellings; residential use of the as-built attached dwellings and new landscaping at 2, 4, 6, 8, 10, 12 and 14 Mimosa Street South Hurstville is determined by refusal.

Orders in BIC Appeals:

145. The Court orders:

146. The appeals are dismissed

147. Exhibits are retained.

E Espinosa

Commissioner of the Court

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