Hennock v Queanbeyan-Palerang Regional Council

The structures the subject of the application

1. The hearing commenced with an inspection of the site the subject of the proceedings and the structures that are the subject of the application for the building information certificate. The site is legally described as Lot 32 of Deposited Plan 270301 and has a street address of 7 Staunton Place, Googong.
2. Whilst the original application for the certificate also included a cubby house, that cubby house is no longer the subject of the application. Similarly, although a pergola and pergola roof attached to the dwelling house was originally the subject of the application for the building information certificate, the Council now agrees that the pergola and its roof formed part of the dwelling for which a modified development consent was granted on 23 June 2006. As such, the pergola and its roof need not, and does no longer, form part of the application that is now before the Court.
3. The location of the garage, greenhouse, gazebo and shed are shown in the aerial photograph in Figure 1.
4. The garage is a metal structure with approximate dimensions of 7 x 10.5m. Based on the inspection by a building surveyor from the Council on 9 January 2019, he considered that there was no evidence of any structural failure, and that the garage appears structurally sound.
5. The greenhouse is a timber structure measuring 7.21m x 4.808m, which is clad with a shade cloth. The building surveyor considered there to be no evidence of failure and the greenhouse appears structurally sound.
6. The gazebo is a brick and timber structure which matches the brick cladding and the colorbond roof of the dwelling. It is round or octagonal in shape, around 40m2 in size and is within the pool area. The building surveyor noted that there was no evidence of failure and that the gazebo appears structurally sound.
7. The shed is a timber clad shed with a metal roof, and has dimensions 12 x 3m. Whilst the building surveyor noted some evidence of deterioration of a timber post in the north-eastern corner, he otherwise found it to appear structurally sound.

The Council's early enforcement action

1. On 22 June 2015, the structures were inspected by an officer of the Council. The Council then wrote to the applicants on 18 March 2016 requesting that the structures, together with the cubby house and the pergola, be removed. The letter was accompanied by a Notice of Proposed Order, pursuant to the former ss 121B and 121H of the EPA Act, notifying the applicants of the Council's intention to issue an order requiring the six structures to be removed within a period of 3 months. No further enforcement action was taken by the Council.

Nature of the appeal

1. Section 6.22 of the EPA Act allows the owner of land to apply for a building information certificate in relation to a building erected on that land. Section 6.25 sets out the circumstances in which one can be issued, and the effect of issuing such a certificate. It provides: (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. (2) A building information certificate is a certificate that states that the council will not make an order or take proceedings referred to in subsections (3) and (4). (3) A building information certificate operates to prevent the council - (a) from making an order (or taking proceedings for the making of an order or injunction) under this Act or the Local Government Act 1993 requiring the building to be repaired, demolished, altered, added to or rebuilt, and (b) from taking civil proceedings in relation to any encroachment by the building onto land vested in or under the control of the council, in relation to matters existing or occurring before the date of issue of the certificate. (4) A building information certificate operates to prevent the council, for a period of 7 years from the date of issue of the certificate - (a) from making an order (or taking proceedings for the making of an order or injunction) under this Act or the Local Government Act 1993 requiring the building to be repaired, demolished, altered, added to or rebuilt, and (b) from taking civil proceedings in relation to any encroachment by the building onto land vested in or under the control of the council, in relation to matters arising only from the deterioration of the building as a result solely of fair wear and tear. (5) However, a building information certificate does not operate to prevent a council from making a development control order that is a fire safety order or a building product rectification order (within the meaning of the Building Products (Safety) Act 2017). (6) An order or proceeding that is made or taken in contravention of this section is of no effect.
2. The applicants appeal pursuant to s 8.25 of the EPA Act. Section 8.25(3) of the EPA Act sets out the powers of the Court on appeal as follows: (3) On hearing the appeal, the Court may do any one or more of the following: (a) direct the council to issue a building information certificate in such terms and on such conditions as the Court thinks fit, (b) revoke, alter or confirm a notice to supply information, (c) make any other order that it considers appropriate.
3. In considering the appeal, the Court re-exercises the functions of the Council in determining the application for a building information certificate, and has the additional powers conferred by s 8.25(3) set out above. In exercising those functions, the Court has variously referred to the consideration of an application for a building information certificate (formerly known as a building certificate) as a "hypothetical or notional development application" (see Taipan Holdings Pty Ltd v Sutherland Shire Council [1999] NSWLEC 276).
4. However, no issues regarding the planning merits of the application as a "hypothetical or notional development application" have been raised by the Council. The Council agrees that the structures are structurally sound, and that there are no environmental or planning issues that would warrant refusal of a nominal development application. Instead, the contentions raised by the Council relate to whether a building information certificate should be issued in circumstances where structures are located outside the building envelope contained in the CMS, and where the requisite approvals from the Executive Committee of the Community Association have not been obtained.

The planning context

1. The land on which the structures are located is zoned E4 - Environmental Living zone under the Queanbeyan Local Environmental Plan 2012 ("QLEP"), and development for the purposes of dwelling houses are a nominated permissible use in the zone. The land is within the Mount Campbell Estate, a rural residential community title scheme under the Community Land Development Act 1989 and Community Land Management Act 1989.
2. The former Yarrowlumla Shire Council granted development consent for a 48 lot community title subdivision, that now forms the Mount Campbell Estate, on 28 November 2000. The consent was subject to conditions. The first condition is that: "The final allotment boundaries and location of building restriction precincts being determined at the time of the survey to the satisfaction of Council's Director of Environmental and Development."
3. Condition 4 then required a Community Management Statement to be documented. It was required, by that same condition, to set out guidelines for development and land use activities. It was required to include, inter alia, a reference "that no buildings are to be erected outside the building restriction precincts as delineated on the plan of subdivision". The condition also requires that the statement "must be structured such that Council is a participant in its formulation and any subsequent alteration."

The operation of the Community Scheme

1. In compliance with the above conditions, the land is subject to the CMS, which is registered against Lot 1 in DP270301, which is owned by Community Association DP270301. The CMS is consistent with condition 4 of the consent and contains the by-laws for the community scheme.
2. The chapeau to the by-laws states that "By-laws 1.0.3, 1.0.4, 3.1, 5.1, 5.3 and 5.4… may only be amended or revoked by a unanimous resolution of the Community Association and the consent of the Council".
3. Pursuant to by-law 1.0.2, the proprietor of a lot within the community scheme "must not allow any work to be carried out on its lot until it has the approval of the Consenting party". The consenting party, in accordance with by-law Part 6, is the original proprietor until it sells all of its lots or advises that it wishes to hand over its responsibility to the Community Association, and is thereafter the Executive Committee of the Community Association.
4. Each lot within the community scheme has a building envelope. By-law 1.0.3 concerns the building envelopes. It was amended on 27 November 2003 and reads as follows: "Each lot has an identified building envelope as shown in the plans annexed hereto. A building envelope may not be changed without the approval of the Council. ALL:- • Dwellings • Garages • Carports • Waste Water Treatment Systems; and • Other major outbuildings with a floor area greater than 12 square metres (other than landscaping features) must be within the building envelope. Tennis Courts and swimming pools may be sited outside the Building Envelope, subject to the approval of the Consenting Party. On all lots, passive recreation features such as gazebos, outdoor eating areas, bird watching hides and the like, and fire hazard reduction works (by only in accordance with a proposal authorised by the Council) may be constructed or carried out outside the Building Envelope."
5. By-law 5.4 states that "The Building Envelopes, referred to in By-law 1.0 may be varied only with the consent of Council and the unanimous consent of the Association."
6. Each of the four structures the subject of the present appeal are constructed outside the building envelope, as shown in Figure 2.
7. Further, whilst the State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 allows certain development to be categorised as 'exempt' development that can be carried out without obtaining development consent, none of the four structures comply with the development standards necessary for them to be considered exempt development.

The Applicants' attempts to amend the building envelope

1. At the Annual General Meeting of the Community Association in 2016, Mr Hennock moved a motion for a unanimous resolution to amend the building envelope for Lot 32. That motion was lost.
2. On 8 January 2018, the applicants lodged a development application with the Council, together with a building information certificate application lodged on the same day. Whilst it was described on the development application form as being an application for use of the timber shed, garage and gazebo, the application was considered as a proposal for the enlargement of the building envelope. Two resident submissions were received concerning the development application, objecting to it on the basis that the CMS required the unanimous consent of the Community Association, and there had been a failed motion to obtain that unanimous consent.
3. As a result of receiving those submissions, the application was referred to the Council for determination. The referral was supported by a recommendation for approval on the basis that "there is no significant environmental impact that would warrant refusal of the application". Despite this recommendation, and following the matter being deferred at its meeting on 9 May 2018, on 13 June 2018 the Council unanimously resolved to "take no action" with respect to the development application and the building information certificate application.

Action by the Community Association concerning the garage

1. On 16 July 2018, the Community Association issued a Notice to Comply with a by-law to the applicants, requiring them to remove, within 14 days, the garage constructed outside the building envelope.
2. The Executive Committee members of the Community Association then sought to take further action with respect to the breach of the Notice to Comply. Four motions with respect to the same were put by them, but they were all opposed based on a Majority Notice from Proprietors, the sum of whose unit entitlements reflected a majority of the aggregate unit entitlement. As a result, each of the four motions were lost, as recorded in the Minutes of the Executive Committee Meeting (Not Actually held) on 14 September 2018.
3. The Strata and Community Manager then advised the applicants, on 21 September 2018, that the motions will now be put to a General Meeting of the Association. However, there is no evidence of that having occurred.

The Council's consideration of the present building information certificate application

1. The building information certification application the subject of this appeal is the second such application to be made, and was lodged on 18 December 2018. The application was supported by an officer of the Council, who recommended that the Council issue a building information certificate with respect to the four structures the subject of the appeal, together with the pergola. Despite the recommendation, on 13 February 2019, the Council resolved to "take no action in this matter".
2. In the letter dated 18 February (incorrectly dated 18 February 2018), in which the outcome was communicated to the applicants, it states that: "This resolution means: • Council did not determine the Application for Building Certificate for the unauthorised structures • Council will not take any action on this matter"
3. The letter then goes on to state, in outlining the option of withdrawing the application, that "As Council resolved to take no action, no enforcement action will be taken on these unauthorised structures if they remain unaltered". This is then repeated later in the letter, in outlining the option "To do nothing", in which it is stated "no enforcement action will be taken (if these structures remain unaltered) at this time should you decided [sic] not to do anything."

The Council's position that a building information certificate ought not be issued

1. On the hearing of the appeal, the Council's position is that a building information certificate ought not be issued in circumstances where the structures are located outside the building envelope contained in the CMS, and that envelope has not been varied to accommodate the area in which the structures are located. It submits that in the absence of the unanimous resolution of the Community Association, the Council is prevented from issuing a building information certificate by the terms of the CMS. Further, the Council submits that any building is required to have the approval of the Executive Committee, and such approval has not been obtained. They also contend that, in circumstances where the structures were erected contrary to the terms of the CMS and without the benefit of assessment through a development application, it would be contrary to the public interest to grant a building information certificate and to do so would create an undesirable precedent for development in the Mount Campbell Estate.
2. In considering the hypothetical development application, the Council submits that the operation of cl 1.9A of the QLEP preserves the enforceability of the CMS, which is registered on title and presents a jurisdictional bar to the grant of consent for buildings outside the building envelope. Clause 1.9A provides as follows: (1) For the purpose of enabling development on land in any zone to be carried out in accordance with this Plan or with a consent granted under the Act, any agreement, covenant or other similar instrument that restricts the carrying out of that development does not apply to the extent necessary to serve that purpose. (2) This clause does not apply - (a) to a covenant imposed by the Council or that the Council requires to be imposed, or …
3. The Council points out that whilst cl 1.9A(1) would generally set aside any agreement, covenant or other similar instrument that restricts the carrying out of development "for the purpose of enabling development… in accordance with this Plan or with a consent granted under the Act", this clause does not apply to the restriction concerning building envelopes in the CMS, which was required to be imposed by the Council through the conditions of consent for the community subdivision. As such, the Council submits that the restriction concerning the building envelopes in the CMS is a jurisdictional bar to the grant of consent, which is relevant to the consideration of the hypothetical development consent in determining whether to direct the issue of a building information certificate.
4. In support of its submission, the Council relies on the decision of Robson J in Wenli Wang v North Sydney Council [2018] NSWLEC 122, in which His Honour considered the operation of a covenant on title restricting the height of development. Before going on to consider the operation of cl 1.9A of the relevant local environmental plan (which is in identical terms to cl 1.9A of the QLEP), his Honour states (at [15]): "The existence and effect of the covenant was a matter of significant concern both to Council and a number of the objectors. It is agreed that the proposed development does not comply with the terms of the covenant. If there were no statutory instrument setting it aside, the covenant would be a jurisdictional bar to the Court upholding the appeal."
5. As such, the Council submits that as the structures do not comply with the building envelope by-law within the CMS, and cl 1.9A does not apply, the CMS is a covenant that would be a jurisdictional bar to the Court upholding the appeal.
6. The Council concedes that the Court, in exercising the functions of the Council as the consent authority pursuant to s 39(2) of the LEC Act, would have the discretion not to impose the covenant, but submits that the Court ought not do that in light of the CMS and its intent to have the integrity of the estate maintained by requiring the consent of both the Council and the Association to modify the building envelopes.

The applicants' position that the building information certificate should be issued

1. The applicants submit that it is appropriate for them to have the protection of a building information certificate, in circumstances where the Council has decided not to take enforcement action concerning the structures and where the Community Association has not taken further action with respect to its Notice to Comply. They point out that the Council never proceeded to issue an order to remove the structures, and rely on the letter of the Council dated 18 February, in which it is stated that "no enforcement action will be taken on these unauthorised structures if they remain unaltered".
2. The applicants submit that as soon as they became aware that the structures were unlawful, they took steps to obtain consent for the expansion of the building envelope and to obtain a building information certificate. The applicants point out that whilst the development application was extensively assessed and the structures were found to be satisfactory, the elected councillors resolved not to take any action, neither refusing nor approving the development application. The applicants rely on the assessment of that development application, which outlines that the Council is not required by the CMS to await a unanimous resolution of the Community Association before granting its consent to the development application.
3. The applicants also say that the building envelope that applies to the site is full, and that any further structures would need to be outside the envelope. They also submit that the building envelope sizes are arbitrary, with some smaller sites having larger building envelopes, and that other lot owners have been successful in amending the building envelope applicable to their lot.
4. The applicants rely also on the by-law specifically allowing "passive recreation features such as gazebos, outdoor eating areas, bird watching hides and the like" to be constructed outside the building envelope. They submit that the gazebo and the greenhouse would fall within this description, and are therefore permitted to be constructed outside the building envelope.
5. The applicants also point out that the concern of the authors of the written objections to the development application concerns the building envelopes, and that no issue is raised by them concerning any adverse impact of the structures themselves.
6. Further, the applicants submit that the issue of a building information certificate would not undermine the operation of the CMS, as it would remain open for the Community Association or any of the lot owners to take action to enforce the CMS, and nothing in the building information certificate would preclude that enforcement action. In light of this, the issue of a building information certificate does not operate to create a precedent for the erection of structures outside the building envelope.
7. Whether or not cl 1.9A applies, the applicants submit that the Council's consent need not follow the consent of the Community Association. Specifically, the applicants say that there is nothing in the CMS that requires the unanimous consent of the Community Association prior to the grant of development consent by the Council. The applicants submit that even if cl 1.9A is not available to set aside a covenant insofar as it relates to the carrying out of development, there remains power for the Court to direct the issue of the building information certificate.
8. In those circumstances, and as the structures have been assessed as being structurally sound, the applicants submit that it is appropriate for the Court to exercise its discretion to direct the issue of a building information certificate with respect to the structures. The applicants submit that this will provide structural certainty for the life of the building information certificates.

A building information certificate should be issued

1. It is well established that a building information certificate can be issued in circumstances where a development consent has not been granted (see Ireland v Cessnock City Council (1999) 110 LGERA 311; [1999] NSWLEC 153).
2. In determining whether a certificate should be issued, I do not accept the submission of the applicants that the building envelopes imposed in the CMS are arbitrary. There is no evidence to support such a submission. Nor do I accept that the fact that a building envelope is "full" can form a basis on which to issue of a building information certificate concerning structures outside the building envelope. Nevertheless, for the following reasons, I accept that a building information certificate should be issued with respect to the gazebo, garage, greenhouse and the shed.
3. Firstly, the Council agrees that each of the structures are structurally sound and that no planning issues arise from their construction. That is, there is no evidence whatsoever of any potential adverse environmental or amenity impact caused by their existence.
4. Secondly, the Council has determined not to take any enforcement action to require the demolition of the structures. This is clearly established by their decision not to proceed with the issue of an order to demolish the structures, by their resolutions on 13 June 2018 and 13 February 2019 to "take no action" with respect to the matter, and by the letter of 18 February 2019 setting out that no enforcement action will be taken. Whilst there may be a matter discernible that would entitle the council to order the demolition of the structures, consistent with s 6.25(1)(b) the Council has resolved not to do so in the circumstances.
5. Thirdly, I accept the submission of the applicants that the issue of a building information certificate will not preclude either other lot owners, or the Community Association, from taking action to enforce the by-laws in the CMS.
6. Fourthly, I do not accept the submission of the Council that there is a jurisdictional bar that would preclude consent to a hypothetical or notional development application. In considering a development application for the erection of structures outside the building envelope, the Council also has the power to consider expanding the building envelope to an area that incorporates those structures. In doing so, no part of the CMS or any of the by-laws creates a jurisdictional bar. Specifically, no part of the CMS requires that the unanimous consent of the Community Association be obtained prior to the grant of the development consent. The CMS does not prevent the lodgement, assessment or determination of a development application for the erection of the structures or the expansion of the building envelope. Therefore, I do not consider that the terms of the CMS and the associated covenant concerning construction outside the building envelope are determinative in considering the notional or hypothetical development application, even if their enforceability is preserved by cl 1.9A(2)(a) of the QLEP.
7. Fifthly, I accept the submission of the applicants that the gazebo and the greenhouse are "passive recreation features such as gazebos, outdoor eating areas, bird watching hides and the like", which are permitted by the CMS to be constructed outside the building envelope, but which would still require development consent and the agreement of the Executive Committee of the Community Association.
8. For all of the above reasons, I consider that it is appropriate to direct the Council to issue a building information certificate with respect to the gazebo, garage, greenhouse and the shed. Given that they have already been certified as structurally sound, no work is required to be done prior to the issue of the certificate.

Orders of the Court

1. The Court orders that:
2. The appeal is upheld.
3. Pursuant to s 8.25(3)(a) of the Environmental Planning and Assessment Act 1979, the Council is directed to issue a building information certificate with respect to the gazebo, garage, greenhouse and the shed identified in Annexure A and located at 7 Staunton Place, Googong.

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: 20 February 2020