Bellagio Investments Pty Ltd v Fairfield City Council [2022] NSWLEC 1113 | Case summary

Judgment

COMMISSIONER: These are three appeals pursuant to the provisions of s 8.25(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal of three building information certificate (BIC) applications; BIC Application No. 92.1/2020 (2021/207043), BIC Application No. 93.1/2020 (2021/212700) and BIC Application No. 94.1/2020 (2021/212702). The three BIC applications, made pursuant to Div 6.7 of the EPA Act, are for six dwellings (the development) at 44 Cathcart Street, Fairfield (the site). The BIC Applications were refused by Fairfield City Council (the Council) on 25 January 2021.
The appeals were subject to conciliation on 16 November 2021, in accordance with the provisions of s 34 of the Land and Environment Court Act 1979 (LEC Act). As agreement was not reached, the conciliation conference was terminated, pursuant to s 34(4) of the LEC Act.
The appeals were heard together. The Court, in the company of the parties, viewed the site at the commencement of the hearing. The hearing was conducted via Microsoft Teams. Issues
The Council's contentions that the BIC Applications should be refused can be summarised as:

The two storey dwellings each exceed the maximum floor space ratio (FSR) development standard under the Fairfield Local Environmental Plan 2013 (LEP 2013).
The two storey dwellings and detached studios each have insufficient private open space and landscaping.
The two storey dwellings and detached studios each have inadequate stormwater disposal.
The two storey dwellings and detached studios fail to comply with the Part 3.7 of the Building Code of Australia (BCA) with respect to fire safety as the required distances are not achieved.
A certificate of compliance from a qualified structural engineer which examines the existing structures and states that it will be structurally adequate has not been submitted in support of the application. The site and its context

Consideration

I accept Mr Milienou's uncontested expert evidence, and on the basis of all of the evidence before me, I am satisfied that the Council's contentions are made out and the BIC Applications should be refused. Orders
The orders of the Court in the 2021/207043 matter are: 1. The appeal is dismissed. 2. Building Information Certificate Application No. 92.1/2020 is refused. 3. The exhibits, other than Exhibit 1, are returned.
The orders of the Court in the 2021/212700 matter are: 1. The appeal is dismissed. 2. Building Information Certificate Application No. 93.1/2020 is refused. 3. The exhibits, other than Exhibit 2, are returned.
The orders of the Court in the 2021/212702 matter are: 1. The appeal is dismissed. 2. Building Information Certificate Application No. 94.1/2020 is refused. 3. The exhibits, other than Exhibit 3, are returned.

Susan O'Neill Commissioner of the Court

Bellagio Investments Pty Ltd v Fairfield City Council