Gcorp Property Pty Ltd v The Council of the City of Sydney

Land and Environment Court (NSW)|2017-03-29

JUDGMENT

These proceedings are an appeal to the Court pursuant to s. 149F (l)(b) of the Environmental Planning and Assessment Act 1979 (the Act) against the refusal of the respondent to issue a Building Certificate under Part 8 of the Act with respect to the building comprising the mixed use development on land known as 33 - 49 Euston Street, Alexandria and being lot 100 DP 1208852, now comprising lots 1 - 49 and the common property in Strata Plan 89333. The building certificate application was dated 4 June 2015 and numbered BC/2015/56. It was refused by the Council by notice of refusal dated 20 August 2015 issued under s. 149D of the Act.
The original applicant was Pyramid Consulting Pty Limited. It was made with the consent of the owner of the land, G Corp Property Pty Limited, the applicant in these proceedings which is aggrieved by the Council's refusal to issue a building certificate: see s.149 F(l)(a). The application was of the kind referred to in s. 149B (l)(b) of the Act.
The Act sets out in s. 149D the obligations of a Council to which a building certificate application is made. Relevantly: 149D 1. The Council must issue a building certificate if it appears that: 1. There is no matter discernible by the exercise of reasonable care and skill that would entitle the Council, under this Act…: 2. To order the building to be demolished, altered, added to or rebuilt, or 1. To take proceedings for an order or injunction requiring the building to be demolished, altered, added to or rebuilt, or 2. There is such a matter but, in the circumstances, the council does not propose to make any such order or take any such proceedings. 1. If the Council refuses to issue a building certificate, it must inform the applicant, by notice, of its decision and of the reasons for it. 2. The reasons must be sufficiently detailed to inform the applicant, that work that needs to be done to enable the Council to issue a building certificate.

Expert Evidence

An expert report of Marie-Clare Kavanagh, a Council Building Surveyor, filed 21 March 2017 was tendered. It addresses Contention 3 (Basement carpark) in the Statement of Facts and Contentions. The tender included two reports of messrs Fire Modelling and Computing. The first was a fire engineering report prepared for Pyramid Consulting Pty Limited dated August 2016 for the purpose of establishing the compliance of the building with the Performance Requirements of the Building Code of Australia (BCA) as to the water pressure booster. This report establishes that Alternative Solutions to satisfy the Performance Requirements of the BCA achieve compliance with the BCA, subject to the marking of the discharge doors from the fire isolated stairways to Euston Road with a sign "Fire Hydrant" in conspicuous lettering.
The second report was a Fire Engineering Report prepared for the Owners-Strata Plan 89333 dated June 2016 headed "Vertical Separation of Openings" with respect to the building. The purpose of this report was to establish the compliance of the building with the Performance Requirement of the BCA. Five separate areas of the building were subject to analysis and testing. The recommendation and conclusion was that subject to inclusion in the Fire Safety Schedule for the building of a prohibition on the installation in the foyers of any combustible furniture and the like, the non-compliance of the vertical separation in clause C2-6 (a) of the BCA does not compromise the compliance of the building with performance Requirements CP2 of the BCA and consequently with the BCA.
A Joint Report signed 21 March 2017 by Mr Mardiros Tatian, Director - Building Innovations Australia Pty Ltd and Ms Helen Daskalakis, Building Surveyor, Council of the City of Sydney, addressed Contention 4 (Fire Safety concerns and non-compliance with the BCA) in the statement of Facts and Contentions (SOFC). The Joint Report tendered addresses Contention 4 in the SOFC. There were no disagreements between the experts in respect of every one of the key points relating to this contention. Work required to address the points was agreed as well as the certification to be obtained for attesting to compliance with the correct BCA and Australian Standard Clauses and the equipment required to be installed. The experts were cross-examined.
Finally, A Joint Expert Town Planning (urban design) Report dated 14 March 2017 of Mr Tony Smith for the Council and Ms Helen Deegan for the applicant was tendered. These well qualified and experienced experts addressed Contention 1 - Front Façade, Contention 2 - Rear Façade and Contention 5, item A (Façade rectification works) only. These experts were also subject to cross-examination.
The disagreements between these experts are: Contention 1: Euston Road Frontage: That the deviation from the construction Certificate resulted in "unacceptable presentation to Euston Road" in design, finish and use of materials and the as-built façade does not comply with clause 6.21 of Sydney LEP 2012. Particulars were provided as follows: 1. increase in scale and bulk from lack of articulation of the façade (in terms of paint, material, colours, stencilling, stepping of the façade and the like) 2. the approved timber cladding and vertical screens on the balconies have not been incorporated resulting in loss of privacy and acoustic protection. 3. The as-built façade does not contribute to the architectural character (current & projected) of the streetscape. Contention 2: Rear Façade - Euston Lane (West) Frontage: 1. That there will be an increase in scale and bulk as a result of lack of articulation of the façade (paint, materials, colours, stepping of façade, recessive fourth storey and the like) 2. Lack of setback of the fourth storey (Euston Lane) results in increase in bulk and scale of the building. 3. Use of large expanses of glass (Euston Lane) detrimentally impacts privacy of occupants and adjoining residents. 4. The character of the built façade does not contribute to the architectural character of the streetscape. 5. The scale and form of the fourth floor does not relate to the lower scale of the adjoining conservation area re: lack of articulation, predominance of glass and grey steel. 6. Contrary to s.79C (l)(e) of the Act - the development will negatively impact on the acoustic and visual privacy of the residents and adjoining occupiers, And are unacceptable Contention 5: non-compliance with construction certificate No 281/14 - rear - façade (Euston Lane) - work required: 1. Provision of articulation and placement of material finishes to front façade, 2. Provision of articulation and set-back of upper level, reconfiguration of windows to provide a horizontal restrictive window instead of floor to ceiling windows, removal of roof over car park exit, replace balustrades and re-position privacy screens to behind balustrades and finishes to Euston Lane. 3. Rectification of windows to ensure they open in accordance with current building codes.
At the conclusion of the hearing the applicant tendered a document (exhibit "M") entitled - "Summary of applicant's position", which was an expansion of an earlier summary. No doubt conscious of section 149F of the Act, exhibit M consists of a 'list of provisions' that the Court might include in an Order directing the Council to issue a Building Certificate on stipulated terms and conditions, if the Court thought fit: see s 149F (3)(a).
Exhibit M deals with all areas of the building referred to in the evidence. All works and certifications set out in the agreed joint report of the fire engineers (exhibit E) are proposed to be completed as are of the conditions that could be imposed in a direction to the Council for the issue of a building certificate. It was demonstrated on the view how, for example, the fire issues in the basement car park could be remedied. The specific physical works necessary are set out in Part (c) of Exhibit M and depicted in plans attached to it.
The other areas of concern are also dealt with: Part (a) Euston Road Frontage; Part (b) Euston Lane frontage. Provision is also made for a fresh Basix certificate to ensure that where works are proposed as an alternative to some of the originally approved items that required rectification and identification of any impact of those works that may alter the basis of certification in the original Basix certificate.
Despite the proposals in exhibit M the Council maintained its position that no building certificate should be directed to be issued by the Court, to the intent that only the works in the development consent and Construction Certificate would satisfy the Council. It is necessary to examine more closely in these circumstances the particular areas where alternative work is proposed in Exhibit M and whether the Council's insistence on the originally approved and certified works only is appropriate in an application for a building certificate.
At the outset of the case the parties agreed on a number of points. First, it was accepted that the outstanding work required by the Fire Safety Orders should be carried out. Secondly, the applicant agreed to carry out rectification works for several particular matters required by conditions of the development consent and construction certificates. The other matters in issue are said to concern the appearance of the building although some of these may also have impacts on amenity and the like.
The proposed works include work designed to satisfy condition 2(c) of the development consent (removal of glass balustrade on the southern end of the building); and work to comply with conditions 12 and 14 of the development consent (car parking spaces and dimensions/ accessible car parking spaces). The Council indicated during the hearing that the proposed works to deal with these were acceptable.
Condition 3 of the development consent headed 'Design Details' required a "final materials sample board detailing all proposed finishes, including external finishes, colours, glazing and louvers (sic) to be submitted to and approved by the Director of City Planning". The condition states: "The final materials sample board must include custom patterned precast concrete panels and Prodema Cladding as generally shown on the Sample Board (Drawing number 1221- DA22 dated 10/5/2013)."
Mr Pickles SC stated that the final materials sample board was never provided to the Director of Planning and he submitted that the two important elements of it were "the pre-cast concrete panels with the stencilled inlay and the Prodema cladding".
It should be noted that condition 3 does not refer to 'stencilled inlay' with respect to the precast concrete panels, only that they were to be 'custom patterned'. On the view of the property the concrete panels on the Euston Road façade were observed to be in accordance with the approved plans set at a slight angle from the horizontal façade, and treated with artistically textured intersecting grey coloured wavy lines on a light coloured background. The drawing numbered 1221-DA22 dated 10/5/2013 referred to in the condition was not tendered in the proceedings. The bundle in exhibit "B" contains a copy of the development consent and the approved plans numbered 1221-DA07 to 1221-DA15 dated 5/8/13. Of these, DA13 is the elevations diagram. It depicts the Euston Road frontage with numerous shadow lines. Where sunlight is depicted as falling on the recessed concrete panels on the first, second and third floors, the plan depicts the wavy lines consistently with that which is currently visible on the concrete panels on the actual façade.
Further, there is a set of architectural plans after page 438 of the bundle in exhibit "B" which was sent by letter at page 437 to the Roads and Maritime Services as the architectural plans current as at 6/6/2014. Mr. Pickles SC stated in opening that those plans were the Construction Certificate (CC) plans. The plans in the exhibit are illegible in part. For example it is not possible for me to read the name of the person who prepared the plans or the date of them. However, one of the plans identified as drawing number DM07 C-3 depicts the East Elevation of the project - the Euston Road frontage. This clearly shows the intersecting wavy line pattern on the first, second and third floors with annotations stating: 'concrete textured with formwork liner' and an arrow to the patterned panels.
This evidence indicates that from the date of the development consent approved by the Council on 21/10/2013 through mid 2014 during the construction of the building the project design included the coloured wavy lined feature to the concrete façade panels. It also indicates that there must have been a "sample board", possibly represented in the plan, which predated the development consent and which had already been provided to the Council, most likely as part of the development application. Further, To the extent that a sample of the Prodema panelling was required, it may have already been supplied to the Council in some form. I was informed that it was used in the Council's public library building.
Condition 3 of the development consent expressly requires that the concrete panels be "custom patterned". The adjective 'custom' indicates in this context 'made to individual order' (Macquarie dictionary 2nd rev. edition). The pattern was clearly designed by a person of some artistic ability, possibly the project architect. Mr Smith took no issue in his evidence with the suitability of the design. Rather, he preferred a finish applied to the concrete panels which was in relief or embossed as with a raised decoration, but Condition 3 does not expressly require such treatment. The Council does not argue that there is a remediable breach of condition 3 requiring production of a sample board. Also, it accepts that the CC was consistent with the development consent, but says that parts of the building have been constructed other than in accordance with the CC.
1. Mr Nash in opening stated that the Applicant seeks via the issue of the building certificate the retention of the Euston Road frontage as built, but with the changes that Ms Deegan has identified in her joint report with Mr. Smith namely: 1. the cutting in of the roof slab niches above the residential bays, and 2. the removal of the glass balustrade to the roof of the southern end of the building. 3. the extension of the "Alucobond" panelling already on the façade to Euston Road.

Applicable Principles

The proceedings are in no way punitive: Ireland v Cessnock City Council [1999] NSWLEC 250; (1999) 110 LGERA 311 at 38; Chami v Lane Cove Council [2015] NSWLEC 1003.
The Court should be satisfied that the building as built at the date of the application for the Building Certificate was structurally sound: see Chami at [178].
Conditions may be imposed on the grant of a building certificate: s.149F(3)(a) of the Act
It is relevant to include consideration of the cost of carrying out rectification works as a condition of granting a building certificate and whether the cost is disproportionate when weighed against the impacts of those works: Chami at [203].
In a case such as the present where the building has development consent and a construction certificate and it has been substantially completed, it is appropriate to treat the building certificate application as involving essentially the consideration of a notional development application for the rectification works desired to be carried out. The parties agreed that the question for the Court is whether or not on the planning merits, the building as built, with the changes proposed by the applicant is satisfactory and acceptable from a planning merits perspective. Mr Nash of counsel added that the question for the Court is not whether the building deviates too greatly from the as-approved design or even about the mere fact of the existence of any unauthorised work. He also submitted that to the extent that the Council's evidence was directed to the difference between what had been built and what was approved, it is common ground that this was not the correct test for the Court to apply.

Urban design evidence

Mr Smith was asked by Mr Pickle's to assume that the required fire safety works would be addressed as well as the rectification work offered to be executed by the Applicant as conditions of the building certificate, and to focus on the work that would be essential in his view to be carried out. In reply Mr Smith referred to clause 6.21 - Design Excellence - in Sydney Local Environmental Plan 2012 (SLEP 2012). It is common ground that this provision had been treated by the Council as applying to the development consent for the building. Sub-clause 6.21(2) provides that the clause applies to development involving the erection of a new building or external alterations to an existing building on land to which the plan applies. For present purposes "the development" involves the external alterations to the existing building proposed by the applicant.
Mr Smith expressed the view that the net result of the proposed alterations to the Euston Road facade would be that there was less diversity of materials and appearance and modulation than that which was proposed. He said "the idea was to have a diversity of materials and modulation" and he stated that the Prodema timber cladding was fundamental.
Ms Deegan confirmed that in lieu of the Prodema cladding new Alucobond panelling was to be fitted to all of the balconies over each of the 3 levels of the building in front of the residential balustrades. It would match the colour of the existing Alucobond material "Apo Grey". From within the balconies people would be looking at a solid material and colour meeting the requirements of safety and security and also trying to improve the visual appearance. Mr. Smith said it would not have the "warmth' and "grain" of the timber product but in pure elevational terms the idea of picking up the sill level existing, and taking it across with a balustrade element above it is a pure elevation. He said that it was potentially acceptable.
Mr Smith raised a maintenance issue for the space between the Alucobond panelling and the balustrade. Ms Deegan said that this was manageable by a number of means. As to the requirement of the Sydney DCP 2012 which anticipated the articulating and modulating of the facades of buildings, including a change in materials, her opinion was that the change of materials would remove the elements of glass that are present now, which were dominating, and bring into the facade the darker aluminium element and an increase in volume of that material. Proportionally this was considered to contribute towards the breaking up of the building and contributing towards the objectives of the provisions dealing with articulation and modulation of facades.
As to the texture of the Alucobond, Ms Deegan said that it still creates interest and articulation and breaks up the façade. However, she did not support carrying the material up the fin walls in the front façade on the basis that aesthetically it would become too "busy". Mr Smith was not prepared to change his stance that the three elements of concern to him, ranked in order, were: (1) Prodema cladding, (2) concrete stencilling to the precast panels and (3) altering the privacy louvres to balconies, that they were all "essential" and that he was not prepared to 'forgive' any of them. When pressed by Mr Pickles, Mr Smith regarded the first two elements as more important than the sun louvres. Ms Deegan's summing up was that there will be a variety of material types and textures: Alucobond, metal framing, concrete and painted ( textured) concrete panels which in her opinion addressed the concerns from a design perspective. She suggested the form of a condition to deal with the matters discussed and stated that it was important to ensure that the alternative solutions to the design should be such as to create a positive Basix outcome.
Mr Smith was cross-examined by Mr Nash. Mr Smith agreed that in expressing his opinions concerning the lack of articulation of the facade, including paint, material, colours, stencilling, stepping of the facade and the like, he was comparing the as- built design with the approved design and that he had concluded that there was a difference and that the as built was therefore inferior. In answer to Mr Nash, Mr Smith ultimately accepted that this was "not what was relevant to the required assessment."

Consideration

I need to decide which of the expert witnesses dealing with the design of the building as proposed to be altered, should be preferred. It is regrettable that Mr Smith did not address the correct question or test in his approach to the issues required in a case involving a building certificate application. He resolutely adhered to the position that that which had been approved was the only appropriate result. He thereby closed off an open consideration of alternative options designed to achieve an outcome which could result in a high standard of urban design for the building. On the other hand Ms Deegan did address the issues correctly. She was willing to consider the alternatives presented and assess their acceptability objectively. Mindful of clause 6.21 of Sydney local environmental plan 2012, she gave her evidence in a fair and measured way and adopted the correct approach. I accept her evidence generally where it conflicts with that of Mr Smith and especially with respect to the three urban design issues raised by Mr Smith: I accept that it is unnecessary to remove the existing cladding to the Euston Road façade and that the continuation of the Alucobond panelling as proposed is acceptable instead of the Prodema cladding. I also accept that the precast concrete panels with the painted pattern may remain without attempting to add some form of embossing. Further, I accept Ms Deegan's opinion that the Louvred sun and privacy screens as built are appropriate and that no further treatment is necessary to either façade in that regard. The rear façade to Euston Lane can be altered by reducing the amount of glazing by use of Alucobond panelling and tinting. This will protect the privacy of nearby dwellings.
The additional panelling coupled with the important step of the cutting out of the 'niches' in the roof slab will help divide the building into several distinct buildings and cause them to read more clearly than at present as separate smaller buildings each of more modest bulk and scale. This, I consider is consistent with the evident intention of the original design. The building complies with the maximum height control. Therefore there is no purpose served by attempting to recess the whole of the top floor level and no requirement to do so.

Conclusion

I conclude, based on the evidence received that the works proposed as conditions on the issue of a building certificate are an acceptable response to the concerns raised by the council.
Subject to what follows, I propose to progress this matter by directions to formulate orders for the council to issue a building certificate for the building subject to the satisfactory completion of the work as generally specified in exhibit M and receipt of certification for that work from accredited certifiers. However, I consider that more precise definition of the work is required. The parties agree that time should be given to the applicant to prepare more detailed plans for construction purposes as well as the specifications for the precise detail of the works.
Accordingly, I make the following directions: 1. I direct the Applicant to prepare, file in Court and serve on the Respondent within 21 days final plans and specifications encompassing the works listed generally in exhibit M in a form suitable for construction and certification. 2. I also direct the Applicant to prepare, file and, serve on the Respondent draft Short minutes by 16/5/2017. The orders are to include the date by which the works can be completed and certified. 3. The matter will be listed before me on Wednesday 17/5/2017 at 4:15 PM for argument, if necessary, and consideration of the making of final orders on date to be fixed following receipt for the documents in directions 1 and 2, and no later than 31/5/2017. 4. If settled orders in accordance with (3) above are filed and served by no later than 12 noon Wednesday 31/5/2017 I will vacate order 3 and make the orders sought in chambers. ………………………………. Acting Commissioner Maston 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: 04 May 2017

(1999) 110 LGERA 311

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