Marion McDowell and Associates Pty Ltd v Georges River Council

Statutory provisions regarding building certificates

1. McDowell's application for a building certificate was lodged with the Council on 21 September 2016 under the now former s 149B of the EPA Act. Following the commencement of the Environmental Planning and Assessment Amendment Act 2017 ("the amending Act") on 1 March 2018, the provisions of s 149B have been relocated to Division 6.7 of the EPA Act. As a result of the amendments, the certificate that McDowell now seeks to be issued is a building information certificate.
2. Just prior to the giving of judgment in this matter, the parties brought to my attention cl 18 of the Environmental Planning and Assessment (Savings, Transitional and Other Provisions) Regulation 2017 ("EPA Transitional Regulations"), which contains a provision delaying the commencement of Part 6 of the EPA Act. It provides as follows: "Postponement of revised building and subdivision certification provisions (1) In this clause, the former building and subdivision provisions means: (a) sections 81A (2)-(6) and 86 of the Act, as in force immediately before the substitution of those provisions by the amending Act, and (b) Part 4A of the Act, as in force immediately before the repeal of that Part by the amending Act, and the regulations made under that Part as so in force. (2) Until 1 September 2018, Part 6 of the Act (as inserted by the amending Act) does not apply and the former building and subdivision provisions continue to apply in respect of a matter (whether or not the matter was pending on the repeal of those provisions)." At the time of giving judgment I was satisfied that this clause did not apply, but I did not provide reasons. That part of this judgment which provides the reasons for interpreting the clause in that manner was therefore not given as part of the extemporaneous judgment, but has been added prior to publication.
3. On a plain reading of the text of cl 18, Part 6 of the EPA Act (including that part which now deals with the former building certificate applications), does not commence until 1 September 2018, and given that s 149B is not incorporated in the "former building and subdivision provisions" there remain no provisions currently in force for a person to apply to the Council for, and for the Council to issue, a building certificate or building information certificate. To read the clause in this manner would result in an absurd and anomalous outcome.
4. Alternatively, taking a purposive approach to the interpretation of this transitional regulation, I am of the view that the delay in the commencement of Part 6 of the EPA Act does not apply to Division 6.7. My reasons are twofold. Firstly, I accept the submission made on behalf of McDowell that the first "and" in cl 18(2) is conjunctive so that only that portion of Part 6 that replaces the former building and subdivision provisions is delayed in application until 1 September 2018.
5. Secondly, the transitional regulation uses the words "inserted by the amending Act" in cl 18(2), which I consider does not apply to Division 6.7. To understand this, it is appropriate to consider the context of cl 18 within the EPA Transitional Regulations. Section 34(b)(ii) of the Interpretation Act 1987 allows me to consider material extrinsic to the clause itself given that the ordinary meaning of the text "leads to a result that is manifestly absurd or is unreasonable." The use of the word "inserted" is clearly distinct from the description of a provision of the EPA Act that has been "renumbered or relocated" by the amending Act, which is referred to in cl 4A of the EPA Transitional Regulations. Clause 4A(1) and (2) provides as follows: "(1) In this clause: document means any Act or statutory or other instrument or any contract or agreement, and includes any document issued or made under or for the purposes of any Act or statutory or other instrument. (2) A reference in any document (whether enacted, issued or made before or after the commencement of this clause) to a provision of the Act that has been renumbered or relocated by the Environmental Planning and Assessment Amendment Act 2017 is taken to be a reference to the renumbered or relocated provision. Anything done or omitted to be done under any such provision of the Act before it was renumbered or relocated is taken to have been done or omitted under the provision as renumbered or relocated."
6. There is clearly, therefore, a distinction in the EPA Transitional Regulations between a provision that has been "renumbered or relocated" and one that has been "inserted". Although the historical notes describe Division 6.7 as having been "inserted" by the amending Act, rather than "renumbered", I consider that Division 6.7 falls within the ambit of a "renumbered" provision, whereas those sections replacing the former building and subdivision provisions (as defined by cl 18) are "inserted" provisions. This is because the former building and subdivision provisions have been replaced by revised provisions with some differing requirements, rather than being simply renumbered or relocated. On the other hand, the building certificate provisions have been renumbered and renamed, with only minor changes to the wording of those provisions.
7. This is supported by the existence of a specific savings provision for certificates issued under the former Part 4A in cl 14, but no equivalent savings provision for building certificates issued under the former ss 149A-149G (Part 8). Clause 14 provides: "(1) A certificate that was issued under Part 4A of the Act (as in force immediately before the repeal of that Part) and that continues to have effect is taken to be a corresponding certificate issued under Part 6 of the Act. (2) Part 4A of the Act (as in force immediately before the repeal of that Part) continues to apply to an application for a certificate under that Part pending on the repeal of that Part. Subclause (1) extends to a certificate issued on the determination of any such application. (3) A subdivision works certificate is not required under section 6.13 of the Act (as inserted by the amending Act) for the carrying out of subdivision work in accordance with a development consent granted before the commencement of that section."
8. It can only be, therefore, that building certificates are saved by reference to cl 4A as something that is "done or omitted to be done under any such provision of the Act before it was renumbered or relocated is taken to have been done or omitted under the provision as renumbered or relocated." To say that Division 6.7 is not a renumbered or relocated provision in this context would otherwise result in an absurd outcome where building certificates issued under the former provisions are not saved. This supports my view that the provisions in Division 6.7 are "renumbered" and not "inserted", and therefore not affected by the delay in commencement imposed by cl 18 of the EPA Transitional Regulations.
9. I note, however, that it may have been the intention of the drafters to include building certificates issued under the former Part 8 (ss 149A-149G) in cl 14 so that they are saved by that provision, and to include ss 149A-149G in the cl 18 definition of "former building and subdivision provisions", but by some omission they neglected to do so. That approach would be consistent with the wording of the amending Act, which repeals ss 149A-149G and inserts Division 6.7. However, it is well established that it is not the role of the Court to amend legislation to overcome its shortcomings (see Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297). Accordingly, I can only work within the provisions as currently drafted.
10. In considering the two different constructions of cl 18 set out above, s 33 of the Interpretation Act 1987 requires that a construction that "that would promote the purpose or object underlying the Act or statutory rule… shall be preferred to a construction that would not promote that purpose or object". Accordingly, the purposive approach outlined above, which considers that the purpose of the clause is to manage the transition from the former provisions of the EPA Act to the new, should be adopted in favour of the ordinary meaning of the text. To adopt the purposive approach is also consistent with the High Court authority in Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation that, in the interpretation of statutory provisions, a literal reading may be displaced by another construction where a literal meaning will lead to absurd or inconvenient results. As such, the delay in the commencement of Part 6 of the EPA Act arising from cl 18 of the EPA Transitional Regulations does not apply to Part 6.7 and I can consider the present application in light of the renumbered and renamed provisions contained therein, insofar as they are relevant.

Nature of the appeal

1. The building certificate application was refused on 20 September 2017 and McDowell appeals against that decision pursuant to the former s 149F, now s 8.25, of the EPA Act.
2. 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 but has the additional powers conferred by s 8.25(3) referred to above. In exercising those functions, the Court has variously referred to it being a "hypothetical or notional development application" (see Taipan Holdings Pty Ltd v Sutherland Shire Council [1999] NSWLEC 276).
4. However, no issues regarding the merits of the application as a "hypothetical or notional development application" have been raised by the Council. Instead, the contentions raised by the Council relate to the adequacy of the building and its drainage, and can be summarised as follows:

• The premises are not structurally sound,
• The premises do not comply with the Building Code of Australia ("BCA") as there is inadequate light and ventilation provided to the upper level,
• The fire safety of the premises has not been adequately addressed,
• The approval of Sydney Water has not been obtained regarding the works that affect Sydney Water Infrastructure and assets, and
• There is inadequate information about the disposal of stormwater and the stormwater drainage contribution fee agreement levy has not been paid.

1. The Council now agrees that the issues regarding fire safety and BCA compliance have been resolved, and that the building information certificate can be issued subsequent to certain agreed works being carried out to resolve the remaining contentions. However, it remains for my consideration whether I ought to direct the issue of the building information certificate. For the reasons set out below, I accept the position of the parties that orders should be made for certain works to be carried out and that the Council ought to be directed to issue the building information certificate upon those works being carried out.

Notional development application

1. Whilst no issue has been raised by the Council concerning the notional development application, in exercising the functions of the Council on the building information certificate application I nevertheless think it appropriate to consider briefly the nature of the development and the zoning of the land on which it is situated.
2. The premises are located in the IN2 Light Industrial Zone under the Hurstville Local Environmental Plan 2012 ("HLEP 2012"). The use of the premises falls within a use for the purpose of light industry, which is permissible with development consent in the zone. The objectives of the zone are as follows: "• To provide a wide range of light industrial, warehouse and related land uses. • To encourage employment opportunities and to support the viability of centres. • To minimise any adverse effect of industry on other land uses. • To enable other land uses that provide facilities or services to meet the day to day needs of workers in the area. • To support and protect industrial land for industrial uses. • To enable industrial development which does not pollute or adversely affect adjoining land, air or water. • To ensure industrial development creates areas that are pleasant to work in, safe and efficient in terms of transportation, land utilisation and service distribution."
3. The surrounding area to the west and the adjacent sites to the east are characterised by other industrial uses and factory units. Blackshaw Avenue is also characterised by residential dwellings to the east, around 50m from the site.
4. There is no dispute about the current use of the premises, or about the merits of the extension of the premises. There is similarly no evidence that it is somehow inconsistent with the objectives of the zone. Accordingly, I am satisfied that the fundamental elements of the notional development application can be satisfied.

Structural Adequacy

1. The Council's contention was that a final structural compliance certificate had not been provided from the engineer involved in the matter, and that there was no certification that recommendations within a report provided by Harrison & Morris Consultancy Pty Ltd dated 10 February 2017 had been carried out.
2. McDowell has now obtained an interim structural adequacy report dated 12 February 2018 from CPM Engineering that confirms the building to be structurally stable subject to some further investigation, and a subsequent structural adequacy report dated 22 February 2018. The latter considers that the elements of the structure are generally compliant but that some work is required to strengthen the assembly to make it compliant with the relevant standards. As a result, the report recommends the following works be undertaken by a licenced structural steel fabricator: "1) Install fourteen (14) flybraces from the bottom chord of the rafters trusses to the steel roof purlins, see plan (required to restrain the bottom chord of the trusses) 2) Install roof cross bracing, 10mm rod bracing with central ring/knuckle, see plan 3) Weld 150x50EAx5.0 angle down the inside chord of each portal column from top of top chord to baseplate, see plan and mark up (required to strengthen the leading chord of the truss column and to adequately join the top and bottom trusses components) 4) Change the bolts in the 50EA struts to 16mm from 12mm and tighten."
3. The structural adequacy report indicates that a completed adequacy report with certification will be issued after the above recommendations are completed. McDowell agrees to carry out this work, and the Council is satisfied that if the work is carried out then their contention regarding structural adequacy has been resolved.
4. I accept that it is appropriate for orders to be made for these works to be carried out, and for the building information certificate to be issued thereafter, subject to the works being undertaken to satisfy the remaining contentions.

Compliance with the BCA

1. The Council's contention was that the upper level of the premises does not provide adequate light and ventilation pursuant to Part F4, Volume One of the BCA on "Light and Ventilation".
2. Mr Smith and Mr Siambis are both BCA consultants who participated in joint conferencing on this contention and gave expert opinion evidence in the joint report filed in the proceedings. They both agree that the building has been upgraded to comply substantially with the BCA with adequate ventilation in accordance with Part F4 Ventilation now provided to the first floor office area.
3. I accept their evidence is adequate to resolve the contention raised by the Council.

Fire safety in the premises

1. The Council contended that McDowell failed to provide a certificate by a suitably qualified building practitioner that the fire zone wall panels were installed in accordance with the design report and compliant with the BCA, and that McDowell had not provided a completed final fire safety certificate in accordance with Part 9 of the Environmental Planning and Assessment Regulations 2000 ("EPA Regulations").
2. Certification of the Ezylite 22mm fire zone wall panels was issued by Mr Smith on 14 February 2018, and a fire safety certificate was issued on 13 February 2018. Mr Smith and Mr Siambis also gave expert opinion evidence in the joint report concerning this contention, and were satisfied that the certification was sufficient to verify that the wall panelling has been installed in accordance with the report by Integrated Fire Services Project no. 2017020 Issue 1 dated 27 February 2017 and was compliant with the BCA. They also gave evidence that the fire safety certificate is adequate to certify all essential and other safety measures in accordance with Part 9 of the EPA Regulations.
3. I accept that these certificates are adequate to resolve the concerns of the Council regarding fire safety and I accept the evidence of the experts in that regard.

Sydney Water approval

1. The issue regarding the Sydney Water asset on the site has been known for some time, and has been the subject of much correspondence between Sydney Water and those acting on behalf of McDowell. As a result of the works carried out on the site, the asset has been covered by a concrete slab. Some confusion arose with Sydney Water as to whether the asset was a sewer main. It is now understood that the asset is a sewer side line, and a specialist engineering assessment conducted by H&M Consultancy dated 29 November 2017 has considered that there will be minimum impact on the asset.
2. Nevertheless, McDowell has indicated that in order to obtain the approval of Sydney Water they are proposing a design that includes creating an inspection point, and/or building concrete encasing for the asset. They seek a 3 month period to obtain the agreement of Sydney Water as to what works are required to protect the sewer side line, to carry out that work, and to obtain final Sydney Water approval.
3. The Council is satisfied that once the Sydney Water approval is obtained, a building information certificate can be issued.

Stormwater drainage

1. The Council's contention was that there is inadequate information about the disposal of stormwater, in particular that there was no final compliance certificate from the design engineer which addresses details on the current method of disposal of roof and surface waters from the whole of the building. The Council was concerned that the lack of information may mean that roof and surface water discharge are not effectively controlled to avoid damage to surrounding property. Their contention also raised that the stormwater drainage contribution fee agreement levy has not been paid.
2. In order to resolve this contention by the draining of stormwater to Blackshaw Avenue, a discontinuity of pipeline owned by the Council in the Blackshaw Avenue stormwater system needs to be rectified. The Council and McDowell have reached an agreement whereby McDowell will contribute to 3% of the cost of those works so as to ensure that the pipeline can accommodate the additional runoff created by the unauthorised works. The Council has indicated through its representative that the works at the property allowing the water to drain from the site to Blackshaw Avenue have already been carried out, but that the contribution has not yet been paid. Accordingly, the parties agree that one of the terms of the orders on this appeal ought to be that the stormwater drainage contribution fee agreement levy be paid, and that this will resolve the issue regarding stormwater drainage.

Final orders

1. I am therefore satisfied that it is appropriate to make the orders as sought by the parties, with a slight variation to make it clear that the structural adequacy works are required to be carried out within 28 days. After the work is carried out, the contribution paid and Sydney Water approval obtained, the Council is then directed pursuant to s 8.25(3)(a) of the EPA Act to issue a building information certificate under Division 6.7.
2. The Court orders that: 1. The applicant: 1. Pay to the Council a contribution for stormwater works in the sum of $7,000 within 3 months (paid in 3 monthly instalments of $2,500, $2,500 and a final payment of $2,000), with the first payment to be made within one month from the date of these orders; and 2. Carry out the structural rectification works outlined in the report prepared by CPM Engineering dated 22 February 2018 (reference 16136) within 28 days; and 3. Provide a compliance certificate to the Council within 7 days of completion of the works referred to in (1)(b); and 4. Within 3 months, provide to the Council the relevant Sydney Water authority following completion of the necessary works, as required by Sydney Water, relative to the sewer assets identified in the report of Harrison & Morris Consultancy Pty Limited dated 29 November 2017. 1. Upon completion of the matters set out in Order 1 above, the Respondent is directed to issue the Building Information Certificate for application No 149D2016/0038 dated 21 September 2016 for the constructed warehouse building and associated works at 58 Blackshaw Avenue Mortdale. 2. The parties have liberty, to be exercised by way of notice of motion with a supporting affidavit, to apply within 3 months of the date of these orders, to vary the periods specified by order 1. ………………………. Commissioner Gray

Amendments 07 March 2018 - Correction made to numbering. 03 April 2018 - Typographical errors in par 32 & 38 corrected 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: 03 April 2018