Solicitors:
HWL Ebsworth Lawyers (Applicants)
King & Wood Mallesons (Respondents)
File Number(s): 10805 of 2014
[2]
Judgment
This appeal is one of seven appeals concerning a property at 57 Minimbah Road Northbridge, owned by Mr and Mrs Screnci. The appeals relate to works undertaken at the property, and are:
1. an appeal under s 121ZK of the Environmental Planning and Assessment Act 1979 (the Act) against an Order under s 121B of the Act issued in relation to alleged non-compliances with development consents granted in 2004 and 2005 and additional unauthorised works, requiring the applicants to undertake and complete specified works (10972 of 2013);
2. an appeal under s 97 of the Act against refusal of a development application, and an appeal under s 149F of the Act against refusal of a building certificate, for landscaping and other works including stairs and retaining walls between the existing dwelling and the northern site boundary of the site at the foreshore of Sailors Bay (10579 of 2014, 10527 of 2014);
3. an appeal under s 97 of the Act against refusal of a development application, and an appeal under s 149F of the Act against refusal of a building certificate, for alterations and additions to the dwelling for the purposes of a secondary dwelling and ancillary outdoor terraces with pergolas (10803 of 2014, 10804 of 2014); and
4. an appeal under s 97 of the Act against refusal of a development application, and an appeal under s 149F of the Act against refusal of a building certificate, relating to internal alterations of the subfloor of the dwelling for a pantry, home theatre, corridor and relocation of a powder room (10802 of 2014, 10805 of 2014).
The seven appeals were heard together, and on 10 July 2015 judgment was delivered: Screnci & Anor v Willoughby Council [2015] NSWLEC 1256. In that judgment the background to the applications and the appeals is outlined, and reasons were given for a determination that development consent should not be granted to the development applications relating to the landscaping and other works between the dwelling and the foreshore (10579 of 2015) and the secondary dwelling (10803 of 2014). These reasons should be read with that judgment. Since delivery of the earlier judgment the parties have been discussing amendments to the landscaping and ancillary works in an effort to settle a form of a modified Order that could direct, and authorise, works to address the issues raised in the appeals 10972 of 2013, 10579 of 2014, 10527 of 2014, 10803 of 2014 and 10804 of 2014. Those matters have been adjourned to allow those discussions to continue.
During the course of the hearing the applicants tendered documents providing specifications, and documenting engineering inspections and certification, of various elements in the construction of the alterations to the subfloor area including the pantry, home theatre, corridor and powder room (ex T). The Council has considered those documents, and has reached the position that subject to further works and certification, it is appropriate to issue a building certificate under Part 8 of the Act.
The parties have reached agreement as to the requirements for works and certification that would enable the issue of a building certificate, and are seeking orders by consent. The parties have provided brief written submissions in support of their position that the making of the orders is lawful and appropriate.
The Council refused the application for a building certificate on 22 September 2014, listing six reasons:
1. the application was not supported by a certificate from a practising structural engineer certifying the footings, walls and slabs of the unauthorised additions to comply with the requirements of Part 3.2 of the Building Code of Australia (BCA);
2. the application was not supported by a certificate from a licensed builder certifying that the vapour barriers had been installed in accordance with Part 3.2.2.6 of the BCA;
3. the application was not supported by a glazing certificate from the installer that all glass installed complied with Part 3.6.4 c and Part 3.6..4.5 of the BCA;
4. the application was not supported by a certificate from an accredited waterproof installer certifying that all wet areas had been protected in accordance with the requirements of Part 3.8.1.2 of the BCA and Australian Standard 3740;
5. natural lighting was not provided to all habitable rooms, including the home theatre, in accordance with Part 3..4.2 of the BCA; and
6. natural ventilation was not provided to all habitable rooms, including the home theatre, in accordance with Part 3.8.5.2 of the BCA.
The works proposed in the Consent Orders require certification of adequacy of the lower ground floor slab, verifying damp proofing, waterproofing, and pest control; installation of an automatic fire detection and alarm system or smoke alarms; removal of the existing door to the home theatre and creating a permanent opening which would satisfy BCA requirements for natural light and ventilation; and certification of those works. The proposed orders include a direction that within 7 days of receipt of the certifications and statements, the Council is to issue a building certificate.
The applicants submit that the proposed works and certifications will make the alterations fully compliant with the relevant Australian Standards and the BCA, and must be undertaken to the satisfaction of the Council before the proposed direction to issue a building certificate becomes operative. The prospective use of the alterations that are the subject of the building certificate will be addressed in the appeal against the refusal of the development application (10802 of 2014), where the proposed use is lawful and the increase in floor space ratio (FSR), as a result of the subject development, is addressed by the provision of a cl 4.6 variation. The applicants submit that on satisfaction of the conditions precedent to the issue of the building certificate not only could development consent have been granted but there is a high probability that development consent will actually be granted for the prospective use of the alterations. The alterations are wholly contained in the existing (approved) building envelope, being developments within void spaces, and will have no impacts on neighbouring properties; there are no privacy issues; and no change to the overall bulk and scale of the building.
The Council submits that the orders ensure compliance with the BCA; and from a planning perspective, the changes are wholly internal and so have no impacts on neighbouring properties or the neighbourhood. The Council's position as advised to the Court on 27 October 2015 is that the documents in Exhibit T, and the additional certification and further works required in the proposed orders, will completely address the reasons for refusal of the building certificate.
Section 149F(3) of the Act provides the powers of the Court on an appeal from the Council's refusal to issue a building certificate:
(3) On hearing the appeal, the Court may do any one or more of the following:
(a) it may direct the council to issue a building certificate in such terms and on such conditions as the Court thinks fit,
(b) it may revoke, alter or confirm a notice under section 149C,
(c) it may make any other order that it considers appropriate.
The parties relied on the decisions of Bignold J in Ireland v Cessnock City Council (1999) 103 LGERA 285, and Ireland v Cessnock City Council (1999) 110 LGERA 311, establishing that the two main issues for the Court when considering an application for a building certificate are first, the structural adequacy of the building, and secondly, the probability of development consent being granted had such approval been sought. I accept the parties' submissions that both issues are now addressed, and that on completion of the additional works and certification the subfloor area the subject of the alterations will comply with relevant standards for structural adequacy; and that from a planning perspective it is probable that had development consent been sought, it would have been granted.
The parties have, as required in the Court's Class 1, 2 and 3 Miscellaneous Appeals Practice Note (para 27), presented evidence on which the Court can determine whether it is lawful and appropriate to make the consent final orders. I am satisfied that it is lawful and appropriate to make the orders, other than the proposed order that there be no order as to costs. The Court notes the parties' agreement that there be no order as to costs. At the request of the parties, proceedings 10802 of 2014 are adjourned for mention on 8 December 2015.
The orders of the Court are, by consent:
The appeal is upheld.
The Court directs the Respondent to issue a building certificate for alterations and additions of subfloor for provision of a pantry, home theatre, corridor and relocation of a powder room at Lot 29 DP 12633 known as 57 Minimbah Road, Northbridge, subject to the fulfilment of the requirements set out in Annexure A.
Linda Pearson
Commissioner of the Court
[3]
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Decision last updated: 03 November 2015