Frangieh v City of Canada Bay Council

The context of the BIC Appeal

1. These proceedings are brought in the context of the Applicant having sought and obtained a Complying Development Certificate to construct a detached studio (Studio CDC) including landscaping. An extract of the CDC approved plan appears below:
2. It is relevant to note that the areas of the Site approved for landscaping by the Studio CDC were required in order to meet the minimum landscaped area, namely 20% of the lot area, as required by cl 3.27(1) of the State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 (CDC SEPP), in order for the erection of the studio to be complying development for the purposes of the CDC SEPP. The Respondent submits that if consent for the erection of the studio had been sought by way of development application (rather than as complying development pursuant to the CDC SEPP), control C2 in clause E3.8 of the City of Canada Bay Development Control Plan 2013 (CBDCP) would require 37% (rather than 20%) of the Site to be soft landscaping. The Respondent submits further that the fact that the CBDCP sets a standard for soft landscaping higher than the CDC SEPP, compliance with the Studio CDC and compliance with the Court's Consent Orders is all the more important.
3. The Applicant acknowledges and does not dispute the minimum 20% landscaping requirement of the CDC SEPP. In opening, the Applicant states that had he sought development consent from the Respondent Council he would have been required to provide a minimum of 37% of landscaping, being the equivalent of 200m2 and would have had to demolish the existing structure. The Applicant relies on the footprint of the existing structures not having 'been touched' in any way.
4. The Applicant lodged an application for a Building Information Certificate (BIC Application) on 11 December 2019 (Exhibit 4) which was ultimately refused by the Respondent on 28 October 2020 (Exhibit 7). The purpose of the BIC Application was nominated in the BIC Application (Exhibit 4) as "Unauthorised/illegal works" and is for the whole of the Site which includes all structures associated with the two-storey dwelling house at the front of the Site (fronting Frederick Street) and the detached studio over the existing detached single-storey garage at the rear of the Site (fronting Mortlake Lane) and which illegal works includes but is not limited to the front fence and hard stand parking space to the front yard.
5. The Respondent commenced civil enforcement (Class 4) proceedings number 2019/246579 pursuant to s 9.45 of the EPA Act to remedy and restrain breaches of the EPA Act specified in the SOFACR and on 5 November 2020, Justice Pain made a number of orders pursuant to consent orders signed by the parties, and by Sharon Frangieh as the Second Respondent (and owner of the Site) to those proceedings, on 4 November 2020 (Exhibit 8). The relevant outstanding Consent Orders being 1(d) and 1(e) as follows: "1. Withing 60 days of the date of these orders, the respondents are to carry out the following work on the land described as Lot 26 DP 7924 known as 27 Frederick Street, Concord (Land), including to the buildings erected thereon: […] (d) Demolish and remove the 3.6 metre wide hardstand car parking space installed in the front yard, and the existing concrete in the rear yard (to the extent required by (the Studio CDC), and install soft landscaping within the front and rear yards of the Land in accordance with the Studio CDC; and (e) Remove the front gate and all associated mechanisms from the masonry fence at the Frederick Street Frontage of the Land, and reinstall the sliding door panel as a fixed element of the fence."
6. An Expert Report prepared by Samuel Lettice, Coordinator - Statutory Planning, for the Respondent was filed 13 August 2021 and marked Exhibit 2.
7. The Applicant did not dispute any of the Respondent's evidence other than to ask some questions of Mr Lettice during the proceedings. The Applicant relied solely on the amended Class 1 application form consisting of 5 pages filed 28 May 2021 (Exhibit A) and a marked up survey Drawing 119312 (Exhibit B) which is reproduced bellow at par [30]. I note that Drawing 119312 is also included in the Respondent's Bundle of Documents (Exhibit 3) at tab 9 with the same mark ups in red pen but without the green highlighting and that the Drawing 119312 is identified in the index to the Bundle as "Marked-up identification survey emailed by Jason Arraj of Forward Legal to Mark Cottom of Pikes & Verekers on 25 June 2021".
8. The Respondent tendered the documents which were annexed to and originally filed with the amended Class 1 including the Consent Orders of Pain J of 5 November 2020 (Exhibit 8).
9. The Respondent relies on the contentions in the SOFACR as an outline of submissions. I will address each contention in turn in the judgment.

The Consent Orders have not been complied with. (Contention 1)

1. The first contention in the SOFACR reads as follows: "The following parts of the work required by paragraphs 1(d) and 1(e) need to be carried out before a building information certificate can be issued: (a) Contrary to Order 1(d), the hardstand car parking space has not been fully removed. Rather, part of it has been removed and some landscaping has been installed in its place. (b) Also, the existing concrete in the rear yard referred to in Order 1(d) remains in situ. More hardstand and less landscaping exists in the rear yard than required by the Approved Drawing. (c) While some mechanisms associated with the front gate have been removed from the masonry fence at the Frederick Street frontage of the Land, the front gate has not been removed and remains as a sliding rather than a fixed element of the fence. Sufficient mechanisms remain in place for the gate to continue to slide, and the placement of a screw into the side of the gate is not sufficient to render the gate a fixed element of the fence. In fact, the gate has been observed as open during a previous drive-by inspection of the Land. This is contrary to Order 1(e)."
2. The Respondent includes two sets of photographs in the Respondent's Bundle of Documents firstly at tab 8 there are photographs attached to the letter from Pikes & Verekers to Forward Legal dated 17 March 2021, including site inspection photographs taken on 17 February 2021. The second set of photographs appear at tab 10 which are Site photographs emailed on 5 July 2021 by Mr Arraj, the Applicant's former solicitor of Forward Legal. These photographs are all entirely consistent with the first contention quoted above.
3. The Applicant does not dispute the first contention other than his assertion at the beginning of the hearing that it was his opinion that the Consent Orders had been complied with.
4. I note in particular the photo of the gate at folio 94 of Exhibit 3 being the gate referred to in Consent Oder 1(e). The Applicant submits that the addition of a screw to the gate renders the gate 'inoperable' and should be accepted as sufficient compliance.
5. I am satisfied that the Consent Orders 1(d) and 1(e) have not been complied with because the gate remains in situ with all associated mechanisms in place and because the existing concrete in the rear yard has not been removed to the extent required by the Studio CDC, and soft landscaping within the rear yard of the Site has not been installed in accordance with the Studio CDC.

Are there any matters discernible that would entitle the council to issue an order or take proceedings pursuant to s 6.25 of the EPA Act? (Contention 2)

1. The second contention effectively raises a jurisdictional precondition to the issuing of a BIC. The Respondent contends that the non-compliance with the Consent Orders as I have found above, would entitle the Respondent to order the Dwelling and/or the Studio to be repaired, demolished, altered, added to or rebuilt or to take proceedings for an order or injunction requiring the Dwelling and/or Studio to be demolished, altered, added to or rebuilt for the purposes of s 6.25(1)(b) of the EPA Act.
2. It is helpful to reproduce s 6.25 of the EPA Act as follows: s 6.25 Issue, nature and effect of building information certificate (cf previous ss 149D, 149E) (1) A building information certificate is to be issued by a council only if it appears that - (a) there is no matter discernible by the exercise of reasonable care and skill that would entitle the council, under this Act or the Local Government Act 1993 - (i) to order the building to be repaired, demolished, altered, added to or rebuilt, or (ii) to take proceedings for an order or injunction requiring the building to be demolished, altered, added to or rebuilt, or (iii) to take proceedings in relation to any encroachment by the building onto land vested in or under the control of the council, or (b) there is such a matter but, in the circumstances, the council does not propose to make any such order or take any such proceedings. (Emphasis added)
3. I accept the Respondent's submissions in contentions 3 and 4 of the SOFACR as follows: "3. The respondent has already taken proceedings of the nature referred to above. The respondent could also propose to make an order of that nature. 4. The Orders were made pursuant to section 9.46(1) of the EP&A Act. The Civil Enforcement Proceedings were within the Court's jurisdiction under section 20(1)(c) of the Land and Environment Court Act 1979 (LEC Act). It would be antithetical to the EP&A Act and section 22 of the LEC Act for a building information certificate (which would prevent the respondent from making an order or taking proceedings of the nature referred to above) to be issued in circumstances where orders of the Court to remedy breaches of the EP&A Act in relation to the Dwelling and the Studio have been made in proceedings of the nature referred to above but such orders are yet to be fully complied with."
4. I accept that the Consent Orders were the result of civil enforcement proceedings commenced by the Respondent relating to the same works the subject of this BIC Appeal and that Consent Orders 1(d) and 1(e) remain outstanding. Therefore, I conclude that I am not satisfied that I can make the orders sought by the Applicant, namely, to direct the council to issue a BIC on the terms sought by the Applicant.

Public Interest

1. In making its decision in respect of an appeal, the Court shall have regard to this or any other relevant Act, any instrument made under any such Act, the circumstances of the case and the public interest. (s 39(4), Land and Environment Court Act 1979 (LEC Act).
2. I have considered the circumstances of this case together with the Consent Orders and that they have not been complied with. I conclude that it is not in the public interest to issue a BIC which would result in the Applicant using a BIC effectively to excuse non-compliance with court orders made to remedy or restrain breaches of the EPA Act.

Notional Assessment of the works covered by the BIC Application (Contention 5)

1. Notwithstanding my findings and conclusions above as to this BIC Appeal, in the event that I am wrong, I will consider the evidence provided to the Court in order to undertake the notional assessment of the works covered by the BIC Application (Exhibit 4).
2. The fifth contention in the SOFACR relates to the notional assessment of the works covered by the BIC and reads as follows: "5. In relation to the front and rear yards together, the amount of landscaping provided on the Land, although improved by the partial removal of the hardstand car parking space to date, remains non-compliant with the Studio CDC and is unacceptable. The landscaping does not meet the objectives of clause E3.8 of CCBDCP 2013 in that it does not enhance the existing streetscape or the quality and amenity of the built form, or minimise the extent of hard paved areas and facilitate rainwater infiltration."
3. The sole expert evidence before the Court is evidence from Mr Lettice in the Expert Report (Exhibit 2) and his oral evidence during the proceedings. I note that all references to the SEPP in the Expert Report are references to the CDC SEPP. The expert evidence in chief of Mr Lettice is as follows: "9. Based upon the marked-up survey plan and later site photographs referred to above, the contentions stated by Council in these Class 1 proceedings appear outstanding. The total landscaped area does not amount to the 104.4sqm required by clause 3.27 of the SEPP, with the total amount calculated by Council equating to 86.921sqm, quantified as follows: • Grassed area in front of house - 41.18 sqm • Planted area cut out of hardstand space in front of house - 16.1805 sqm • Newly grassed area to side of house - 10.633 sqm • Rectangular grassed area to rear of house - 18.9275 sqm. 10. The above areas have been calculated in accordance with minimum landscaped area for the purposes of clause 3.27 of the SEPP. For the purposes of clause 1.5(2) of the SEPP (and thus clause 3.27), 'landscaped area' is defined in the dictionary to the Standard Instrument as excluding 'any building, structure or hard paved area'. Clause 3.27(2) of the SEPP itself also expressly excludes any area with a dimension less than 1.5 metres. 11. In addition to the Site itself being some way short of the minimum total landscaped area requirement, the landscaped area behind the building line (29.560sqm) also falls well short of the minimum 52.2sqm required by clause 3.27(3)(b) of the SEPP. 12. Section E3.8 of the CBDCP relates to landscaping with control C2 requiring…'a landscaped area for dwelling houses and dual occupancies is to be provided in accordance with the following tables: Site area 450m² - 550m² that provide two storey dwellings - 37%'. The landscaped area provided on the Site does fall well short of the stated minimum. Despite the numerical non-compliance, a merit assessment has been provided against the underlying objectives of Section E3.8 of the CBDCP, which are as follows: O1. To enhance the existing streetscape. O2. To enhance the quality & amenity of the built form. O3. To provide privacy and shade. O4. To minimise the extent of hard paved areas and facilitate rainwater infiltration. 13. From a streetscape perspective, removal of the hardstand associated with the parking space forward of the building line has facilitated a greater consolidated landscape and thus desired resolution from the street. Whilst actual planting within the front yard is limited to that of small shrubs, it is complemented by large canopy within the Council verge forward of the Site and thus deemed acceptable and consistent with objective 01. 14. I am concerned particularly with respect to the extent of hard paving within the rear yard and absence of any meaningful consolidated landscaped area. In this regard the Site contains extensive built form, noting both a large dwelling and detached outbuilding adjacent to the rear lane. As a result, the area of private open space that is located between the two structures is relatively small and thus effective landscape is viewed as imperative. The small landscaped pockets provided adjacent to private open space to the northern boundary and southern side elevation of the dwelling are not sufficient in enhancing built form nor facilitating vegetation that would otherwise afford a suitable level privacy and shade, and thus are inconsistent with objectives 02 and 03. The scattered and divided nature of landscaping on site and large concrete area that divides the house from the outbuilding also prevent suitable infiltration intended by objective 04."
4. The Applicant's marked up Drawing 119312 (Exhibit B) appears below.
5. The Respondent included in the Respondent's Bundle of Documents the relevant extract of clause E3.8 of the CBDCP at tab 5 and the objectives are as set out above in the quoted par 12 from the Expert Report.
6. I accept the evidence of Mr Lettice and am satisfied that the numerical controls are not achieved and that his merit assessment in para 12 to 14 in the Expert Report is sound.
7. The Applicant cross examined Mr Lettice during the hearing. Mr Lettice did not resile from his evidence in chief. Mr Lettice gave oral evidence that upon his review of the dimensions of the areas marked in green in the Exhibit B drawing his calculation of all landscaped areas greater than 1.5m as required by the CDC SEPP results in a total area of 87.5m2 of soft landscaped areas where 104.4m2 is required. Mr Lettice was also asked why he was insistent on the minimum landscaped area in the rear yard when the CDC SEPP requires 20% landscaped area in total. Mr Lettice confirmed firstly, that for the purposes of the CDC SEPP anything under 1.5m is to be excluded from the calculation of landscaped area. Secondly, that under the CDC SEPP there is no flexibility nor any merit assessment and that as set out in his Expert Report (at par 11) cl 3.27(3)(b) of the CDC SEPP requires 50% of the minimum landscaped area must be located behind the building line.
8. The Applicant's submissions include that he cannot comply with the CDC plans because his wife hangs out the washing in the area between the primary dwelling and the CDC Studio and that his step daughter resides in the CDC Studio and uses the concrete area between the dwellings for access. The Applicant seeks to maintain this access between the rear and front dwellings and that as it is a family home it must meet the family needs. The Applicant concedes that he received a significant landscaping concession as a result of obtaining a CDC for the Studio. I do not accept that complying with the CDC approved plan would result in a 'nightmare' as claimed by the Applicant because access between the front and rear dwellings can be achieved in a variety of ways which the Applicant is not prepared to entertain or consider. I form this opinion because the matter has been through a number of processes being a conciliation conference firstly in the civil enforcement proceedings resulting in the Consent Orders and a further conciliation conference in these proceedings in June 2021. The Applicant was legally represented throughout.
9. The Respondent made submissions regarding the burden to be discharged by Respondent and Applicant respectively in the context of a notional merit assessment and relies on the decision of Commissioner Gray in Chhabra v Ku-ring-gai Council [2021] NSWLEC 1009, where at [136] the Commissioner said: "It is Mrs Chhabra's application for a building information certificate and her application to modify or revoke the order. Accordingly, I accept the Council's submission that she bears the burden of persuading the Court that a building information certificate should be issued and the order modified. Upon the raising of any issues of impact by the Council, she then has the burden of establishing that any identified impacts are not unacceptable."
10. I am satisfied that the Applicant has failed to discharge the burden of persuading the court that a BIC should be issued for the following reasons: 1. The Respondent Council has undertaken a notional assessment and has raised issues of impacts of the unauthorised/illegal works. These are identified by Mr Lettice in par 14 of the Expert Report and there being no other evidence I accept the evidence of Mr Lettice. 2. The Applicant's family needs are not a relevant factor in establishing that the identified impacts are not unacceptable.

Is there an alternative to dismissing the appeal?

1. The Respondent pleads in the SOFACR that as an alternative to dismissing the Appeal, the Court could inform the applicant of the work that would need to be done before the Court could direct Council to issue a building information certificate (namely, the remaining work required by the Orders) and defer its determination of the appeal until the applicant has had a further opportunity to do that work (s 39(2) of the LEC Act and s 6.26(7) of the EPA Act).
2. I have taken into consideration the fact that a BIC may apply to the whole or to part only of a building (s 6.26(1) EPA Act) and that this BIC Appeal relates to an application for a BIC for the whole of the building (page 2 of BIC Application HBC2019/0623, Exhibit 4). As mentioned above, the Respondent tendered the balance of the documents originally filed with the Class 1 Application on 28 May 2021. These documents include a letter to the Applicant dated 13 February 2020 seeking additional information in response to the BIC Application lodged on 10 December 2019 including clarification as to what part of the property or whole of the property the BIC Application is for (Exhibit 5). The response from the Applicant dated 8 April 2020 is Exhibit 6 and includes material relating to "House & Granny Flat" and to the "entire dwelling and Granny Flat/Garage" and includes certification for waterproofing the roof of the garage which I understand to be the Studio constructed pursuant to the Studio CDC. Finally, Exhibit 7 comprises a letter to the Applicant dated 28 October 2020 refusing the BIC Application HBC2019/0623 and provides a list of work that needs to be done to enable the Council to issue a BIC including but not limited to demolishing and removing the existing concrete in the rear yard and installing soft landscaping within the front and rear yards that complies with CDC2019/0042 (the Studio CDC).
3. I note that the Consent Orders and the BIC Application the subject of these proceedings relate to other unauthorised/illegal works that have since been remedied to the satisfaction of the Respondent Council as detailed in the letter from Pikes & Verekers to Forward Legal dated 17 March 2021 (at tab 8 of Exhibit 3). The Applicant did not seek to amend or modify the Appeal at any time to seek orders for a BIC that applies only to part of a building, namely, the front dwelling.
4. I am satisfied that the Applicant understands and is aware of the work that is required to be done before a BIC can be issued for the whole of the Site because: 1. His certifier prepared the plans for the CDC; 2. He signed the Consent Orders in the civil enforcement proceedings; 3. The letter of 28 October 2020 refusing the BIC Application includes a list of works to be done; 4. The Applicant has been legally represented at all relevant times up until the morning of the hearing.
5. I am also satisfied that the Applicant has had ample opportunity to undertake the work and therefore in order to achieve some form of finality to these proceedings I do not think it is appropriate to defer the determination of this appeal.
6. As I am not satisfied that a BIC should be issued for the reasons set out in paragraphs [24] and [36] above (namely, Consent Orders 1(d) and 1(e) remain outstanding to be complied with and that the preconditions of s 6.25(1) of the EPA Act are not met), I conclude that the options of s 8.25(3)(a) and (b) of the EPA Act are not appropriate. Accordingly, and for the reasons in this judgment, I conclude that pursuant to s 8.25(3)(c) of the EPA Act, the Appeal should be dismissed.

Orders

1. The Court orders that: 1. The Appeal is dismissed.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 24 November 2021