Grounds 1 and 2: the Need for the Owners Corporation's Consent
29Given the related subject matter of appeal grounds 1 and 2, it is convenient to deal with them together.
30The council did not accept that the question of whether the Owners Corporation's consent was required was a question of law. Mike George submitted that it "clearly" was. To the extent that the grounds turn upon the proper construction of either cls 49(1) or 93 of the EPA Regulations, this undoubtedly raises a question of law. However, if the grounds turn upon the Commissioner's application of those correctly interpreted regulations to the evidence before her, this is likely to give rise to a question of fact, which is beyond the purview of this appeal.
31With respect to grounds 1 and 2 the submissions of Mike George may be summarised as follows:
(a)first, it did in fact object to draft condition G.2;
(b)second, it was wrong to construe the DA as requiring works to the common property;
(c)third, the requirements of cl 93 had already been satisfied under the terms of the 1998 consent;
(d)fourth, the Commissioner erroneously proceeded on the basis that the DA required compliance with G.2; and
(e)fifth, the Commissioner fundamentally misconceived the nature of the DA before her insofar as no building works were proposed by Mike George, only a change of use.
32In short, Mike George argued that by misunderstanding the application before her, and by failing to assess that application (namely, a DA that required no building works to be carried in order to be fire safe compliant), the Commissioner had constructively failed to exercise her jurisdiction to determine the DA.
33In response, the council submitted that whether or not Mike George consented to condition G.2, it was an essential condition for the Commissioner (as the consent authority) to consider in assessing the DA in the absence of any application to modify the 1998 consent to vary condition 33 permitting residential occupation of the studio and storage area.
34Mike George took the Court to a number of examples in the transcript of the proceedings before the Commissioner where it purportedly expressed its lack of consent to condition G.2. In particular, it relied upon the following passage (T26.09-26.28):
So we say the issues before the Court are really in essence very simple. There is already a statutory regime in place for buildings whether they're occupied or not, and by that I mean they can be occupied by residents which do not comply with fire safety standards and council has the power and the obligation to audit the building and issue orders to make it compliant and so there's already a regime in place. So with respect to the development approval sought in this Court it's not a question of whether the body corporate consents to make its building compliant with fire safety, their consent is not required when the council imposes fire safety issues and orders on the body corporate, whoever the owner is they have to comply.
So this application is not in any way seeking a change of classification with respect to Building Code of Australia issues or any other manner, it is merely seeking the deletion of condition 33 which in essence is an archaic condition ever since the building approval was granted which allowed for the construction of the building in the way that is [sic] has been constructed and so issues about fire safety, occupation certificates and making the building compliant with fire safety is nor [sic] raised by the specific development application which is before the Court, so we say it's a red herring and is not a matter which impacts on whether or not this is good development or not.
35With respect this, and the other passages referred to by Mike George, were entirely equivocal. This purported oblique objection to the imposition of condition G.2 can be contrasted with the very specific objection made to conditions A.1 (T25.35) and G.1 (T26.5).
36In my view, in light of the way that Mike George framed its submissions before the Commissioner on this issue, she did not commit a legal error by concluding that, "the applicant has not disputed the inclusion of condition G.2" (at [42]). This is because Mike George did not clearly do so.
37In any event, the Commissioner did record the substance of Mike George's submission in this regard (at [28]):
28. Mr Sahade submits that there is already a legal requirement for the garage and studio building to comply with the BCA and therefore the contention raised by Council regarding the lack of owners' consent for works to common areas is a red herring, as owners' consent is not required for BCA compliance associated with the 1998 development consent. He submits that the issue of fire safety is not raised by the application before the Court.
38The Commissioner went on, however, to reject this submission. She was, in my opinion, correct to do so.
39It did not matter that no building work to the common areas was proposed by the DA. This was because by reason of the change of use from a studio to residential accommodation or a dwelling (which was plainly what was proposed by the DA when regard was had to the definition of "dwelling" in the LEP: see the discussion of what constitutes a "dwelling" below at [54]) the Commissioner was required to consider whether the current fire protection and the structural capacity of the building was appropriate to the building's proposed use (cl 93(2) of the EPA Regulations). Moreover, the Commissioner was obliged to be satisfied that the building either complied, or when completed, would comply, with "such of the Category 1 fire safety provisions as are applicable to the building's proposed use" (cl 93(3) of the EPA Regulations). As noted above, a "Category 1 fire safety provision" is defined to pick up provisions of the BCA.
40Clause 93 was a mandatory consideration imposed on the Commissioner by dint of the operation of s 79C(1)(a)(iv) of the EPAA and cl 93(5) of the EPA Regulations. It included taking into account compliance with the Category 1 fire safety provisions.
41The Commissioner, as the consent authority, had the power to impose conditions on any consent she granted to the DA (s 80A(1)(a) of the EPAA). This included a condition requiring the carrying out of works (whether or not the works were on land to which the DA related) relating to any matter referred to in s 79C(1) (s 80A(1)(f) of the EPAA). The Commissioner also had the power to grant a deferred commencement consent (s 80(3) of the EPAA).
42It therefore cannot, in light of the foregoing analysis, be concluded that the Commissioner committed any legal error by having regard to condition G.2 of the draft conditions of consent.
43If it is accepted that the Commissioner was entitled to take into account condition G.2, can it therefore be argued that the Commissioner committed a legal error in finding that the DA required the consent of the Owners Corporation?
44Mike George argued, based on the evidence of its own BCA expert, Mr Boyce (see the Supplement to the Joint Planners Statement dated 23 November 2012), that if the building was built in 1998 as the 1998 consent indicated, then it would have already been assessed against, and was compliant with, the 1996 BCA, which was the basis of the current BCA, especially in relation to fire protection. This view was repeated by Mr Boyce in his oral evidence (T24.10-24.37).
45However, Mr Boyce's written evidence appeared to be contingent on the council having issued an occupation certificate when the building was completed, indicating that all the fire requirements had been completed at that stage. As Mr Taylor noted there was no record within the council's files of an occupation certificate having been issued for the 1998 consent. Moreover, it was Mr Taylor's opinion that in order to comply with the BCA, work to the common property was necessary (T24.45-24.49).
46Ultimately, the Commissioner accepted the council's submission that building works were required on the property in order to ensure compliance with the BCA. Put another way, the Commissioner did not accept that the property, upon its use being altered, would comply with the BCA fire requirements. This was a finding of fact. She also accepted the evidence of both Mr Boyce and Mr George as to how this compliance could be achieved (at [27] and [40]). Likewise, this was a finding of fact.
47The Commissioner therefore determined that condition G.2 was an appropriate condition to impose on Mike George and that it ought to form part of any consent granted by her to the DA. She was entitled to do so, and no legal error upon her part is disclosed.
48The works to be carried out by Mike George to comply with condition G.2 necessitated development to be carried out on the common property. This was also a finding of fact by the Commissioner, that was readily supported by the expert evidence.
49Once this is accepted, cl 49(1)(b) of the EPA Regulations mandated that the owner of the common property (the Owners Corporation) consent to the making of the DA. It did not (another finding of fact), and accordingly, the Commissioner held that she was unable to determine the appeal without it. Again, no legal error is disclosed in the Commissioner's conclusion.
50Mike George could not avoid the need to obtain the Owners Corporation's consent by relying upon the abrogation of cl 33 of the 1998 consent. This is because the deletion of cl 33, as reflected by the imposition of draft condition A.1, about which there was no complaint, required the modification of the 1998 consent (see s 80A(1)(b) of the EPAA). Any such modification had to be "in accordance with the regulations" (s 80A(5)). Clause 97(1)(e) of the EPA Regulations, which is concerned with the modification of development consents, also requires a statement, if the applicant is not the owner of the land, signed by the owner of the land to the effect that the owner (the Owners Corporation) consent to the modification. Again, there was none.
51There having been no error on a question of law disclosed, it follows that grounds 1 and 2 of the appeal must be dismissed.