The Council submits that these applications arise from circumstances of some controversy between the applicant and the owners corporation. This is because of works carried out by the applicant both within lot 148 and to the common property to install services and fitout to lot 148. These works were said to have been carried out pursuant to two complying development certificates (CDCs) which are currently the subject of a judicial review challenge in Class 4 proceedings in the Land and Environment Court, commenced by the owners corporation. The controversy also extends to whether the applicant was entitled to carry out works to the common property without the consent of the owners corporation and this matter, as the Council understands it, is the subject of proceedings between the owners corporation and the applicant in the NSW Civil and Administrative Tribunal, which has been heard and judgment is reserved.
For the purposes of this appeal, the applicant does not rely on the CDCs. The Council submits that each of the applications the subject of this appeal have been made to try to regularise the status of the works, and to obtain prospective development consent.
[2]
Legislative and planning framework
The EPA Act at s 6.22, under Division 6.7 Building Information Certificates, is in the following terms:
6.22 Who may apply for building information certificates
The following persons may apply for a building information certificate in relation to a building:
(a) the owner of the land on which the building is erected,
(b) any other person with the consent of the owner of that land,
The EPA Act includes the following definition for "building":
building includes part of a building, and also includes any structure or part of a structure (including any temporary structure or part of a temporary structure), but does not include a manufactured home, moveable dwelling or associated structure within the meaning of the Local Government Act 1993.
The Environmental Planning and Assessment Regulation 2000 (EPA Regulation) at cl 280 is in the following terms:
280 Application for building certificate
(1) An application for a building certificate in relation to the whole or a part of a building may be made to the council by:
(a) the owner of the building or part or any other person having the owner's consent to make the application, or
The EPA Act at s 4.12 is in the following terms:
4.12 Application
(1) A person may, subject to the regulations, apply to a consent authority for consent to carry out development.
The EPA Regulation at cl 49 is in the following terms:
49 Persons who can make development applications
(1) A development application may be made:
(a) by the owner of the land to which the development application relates, or
(b) by any other person, with the consent in writing of the owner of that land.
The site is zoned B4 mixed use pursuant to the North Sydney Local Environmental Plan 2013 (LEP 2013) and the proposal is permissible with consent, because commercial premises are a nominate purpose permitted with consent in the B4 zone and the dictionary definition in LEP 2013 of commercial premises includes office premises. Office premises is defined in LEP 2013 as follows:
office premises means a building or place used for the purpose of administrative, clerical, technical, professional or similar activities that do not include dealing with members of the public at the building or place on a direct and regular basis, except where such dealing is a minor activity (by appointment) that is ancillary to the main purpose for which the building or place is used.
[3]
Public submissions
Three resident objectors provided evidence at the commencement of the hearing onsite and one resident objector provided evidence in Court. Their concerns can be summarised as:
The proposal is to be used for the purpose of a call centre and the plans do not show the infrastructure to enable it to be used for that purpose, including the cabling and phones.
A call centre is out of character with the established character in Milsons Point. The approval of the application would set a precedent for the erosion of the amenity of the area.
Lot 148 is underground. Lot 148 can only be accessed by the lifts and the lifts were designed to provide access for the residents in the high rise. The burden on the existing lifts will increase significantly if 50 additional people are using them each day.
The three existing commercial/retail premises within The Colonnades all have external access for staff and the public.
The fire exit measures are inadequate. The proposal relies on a fire exit to the pool which is part of the common property.
Access to lot 148 via the residential foyer and lift core is unacceptable as it will compromise the security of apartments that can be accessed from the foyer and car park. The proposal increases the risk of theft and property damage within the existing building.
The proposal will generate rubbish that must be removed via the lift.
[4]
Expert evidence
The applicant relied on the expert evidence of Brett Daintry (planning and building surveying). The Council relied on the expert evidence of George Youhanna (planning) and Long Huynh (building surveying). The owners corporation relied on the evidence of Scott Barwick (planning) and Allan Harriman (building surveying).
[5]
Building Surveying
The building surveying experts agreed that the existing works undertaken within lot 148 provide sufficient facilities to allow lot 148 to be used as a Class 5 Building pursuant to the National Construction Code's performance and minimum technical requirements for new building work and that lot 148 is fit for occupation and use as an office. The experts agreed that there are no matters under Section F of the Building Code of Australia 2019 that would warrant the Council issuing an order.
The experts agreed that they had no concern as to the structural adequacy of the existing works within lot 148.
The experts were satisfied that the works-as-executed plans, building reports and certificates lodged with the Council demonstrate that adequate provision for fire safety has been made to ensure and promote the safety of persons in the event of a fire. The experts agreed that there are no apparent fire safety concerns in accordance with Sections D and E of the Building Code of Australia 2019 warranting the Council to issue an order.
According to Mr Harriman, the installation of drainage in lot 148 required the cutting of the concrete floor and excavation of the sub-soil to install the drainage. Messrs. Daintry and Huynh agreed that all works the subject of the BIC application are within lot 148.
[6]
Planning - Impact on residential amenity
Messrs. Daintry and Youhanna agreed that the proposal will have an acceptable impact on the residential amenity of the residents of the existing development. The proposed use is consistent with the objectives of the zone and the shared lift lobby does not warrant refusal of the proposal. Any potential impacts can be adequately mitigated by the Plan of Management incorporated into the consent by condition.
Mr Daintry noted that the existing development is well below the 1:1 floor space ratio (FSR) for the commercial component of the development required by the current planning regime and that the approval of this proposal will increase the proportion of the commercial floor space within the existing development.
In Mr Youhanna's opinion, the agreed amendments to the Plan of Management (Ex H) sufficiently manage the proposal and mitigated any impacts on the residential amenity enjoyed by the residents of The Colonnades.
Mr Barwick was concerned about the conflict between the proposed use and the residential amenity enjoyed by the existing residents of The Colonnades. In his opinion, it is difficult to mitigate or manage these conflicts because of the layout of the existing building and the shared lifts to access residential apartments in the high rise tower and lot 148. In Mr Barwick's opinion, the hours of operation should be broadly consistent with the core base hours in NSDCP, at Part B, s 7.3.1 Trading hours, and any additional hours could be permitted on a trial basis. In Mr Barwick's view, the hours should be restricted to 7am to 8pm Monday to Friday and 7am to 2pm on Saturdays. Mr Barwick identified the capacity of the high-rise tower lifts as the key constraint to the maximum number of people that should be permitted to occupy lot 148 per day and in his view, it should be limited to a maximum of 45 people per day.
Following Mr Barwick's evidence, the applicant amended the conditions of consent (Ex J) and the Plan of Management (Ex H) to reflect the hours and maximum number of people on the premises per day nominated by Mr Barwick.
[7]
Council's submissions
The Council submits that the statutory regime for the seeking of protection against orders requiring the demolition or alteration of unauthorised work is contained in Division 6.7 of the EPA Act and the substantive test for the issue and the effects of a certificate are set out in s 6.25. It is not controversial that a certificate may be sought for "the whole or to part only of a building" as expressly stated in s 6.26(1) of the EPA Act. This enables the applicant to confine the BIC only to works constructed within the cubic space that is lot 148.
The Council submits that a BIC may only be applied for by "the owner of the land on which the building is erected", pursuant to s 6.22(a) of the EPA Act and as the BIC application does not include the consent of the owners corporation, there is no power to direct the Council to issue a BIC for lot 148.
The requirement that the BIC application be made by the owner of the land on which the building is erected is distinct from the requirement under cl 49 of the the EPA Regulation which enables a development application to be made "by the owner of the land to which the development application relates".
The Council submits that no merit concerns are raised in relation to the issuing of a BIC.
[8]
Owners corporation's submissions
The Owners corporation adopted the Council's submissions and presses the contentions raised in relation to the BIC application.
[9]
Applicant's submissions
The applicant submits that for the purpose of the applications the Court is to assume that the applicant did not have the CDCs in force at the time of constructing the works within the cubic space of lot 148 and that the applicant is seeking a BIC for the works carried out within the cubic space of lot 148. The applicant submits that the BIC application is only for works within the cubic space of lot 148 and the development application is for the use of works within the cubic space of lot 148 for office premises.
The applicant noted that the Council does not raise any merit issues. The Council's contention is only relevant to the BIC application and does not affect the grant of development consent for the proposal, as the two applications are independent. The Council draws a distinction between the owner's consent requirements for the BIC application and the development application and accepts that the development application does not require the owners corporation's consent.
The applicant submits that the Council has interpreted "the owner of the land on which the building is erected" in s 6.22(a) of the EPA Act to mean the totality of the building. In order for the words, "the building" in s 6.22(a) to mean the totality of the building, the Court must ignore the defined term "building" in s 1.4 of the EPA Act, which includes part of a building. While there are circumstances in which a defined term, because of the textual context, might not apply, this is not the case in s 6.22(a). In the circumstances of the terms of this section, the defined term should be accepted. Section 6.25 of the EPA Act also refers to "the building" where the meaning of the building would include part of a building. Clauses 280 and 281 of the EPA Regulation make it clear that a Building Information Certificate application can be made for part of a building and although the delegated legislation cannot be used to interpret the Act, it is part of the statutory package and the only way the Act and the Regulation can operate consistently and in harmony is by applying the meaning of "building" expressed in the definition to include part of a building. Furthermore, it would be an absurd outcome for the consent of the owners corporation to be required for a BIC application but not for a development application because the issue of veto is more compelling in relation to BIC applications.
[10]
Council's submissions
The Council submits that it is satisfied that the amenity concerns raised in the Statement of Facts and Contentions (Ex 1) have been resolved by way of appropriate conditions (Ex J) and the Plan of Management (Ex H). The Council does not oppose the grant of consent to the development application, subject to the conditions of consent.
[11]
Owners corporation's submissions
The owners corporation submits that if the relief sought in the Class 4 proceedings would render the development application inoperable because all building work carried out in reliance on the first CDC and second CDC would have to be removed (Exh 21, tab B).
The owners corporation submits that the fit-out and the development application rely on the common property; for example, the connection of the exhaust to the common property as shown on the 'Toilet Exhaust Plan' (Ex 1); the supply and removal of water and waste from the toilets, sinks, dishwasher and showers relies upon unauthorised trenching works in the floor slab; and the structural integrity of the fitout elements rely on fixings in the ceiling and walls. Furthermore, the use of the commercial space requires shared use of common property including the lift access.
The development application relies upon the removal of bins via the residential lift and that is an unacceptable way for the management of the amount of waste likely to be generated.
The owners corporation submits that a condition should be imposed to require the two car parking spaces and seven bicycle spaces within lot 167 to no longer be available to lot 148, if the use the subject of the consent is to cease.
[12]
Applicant's submissions
The applicant submits that the development application is to use the cubic space of lots 148 and 167 and does not include any works done to the common property. The owners corporation's submissions conflate requirements under the Strata Schemes Management Act 2015 with the considerations under s 4.15 of the EPA Act. The authorities make it plain that an owners corporation is not an owner for the purposes of the EPA Act merely because the cubic space relies upon other work. If it were the case, then a development application for dwelling on a block of land would need the consent of the owner of the services' infrastructure or the public road because one must traverse the public road to get access to the land.
[13]
Whether works that rely or encroach on common property require the consent of the owners corporation as the owner of land to which the development relates
The question posed by the owners corporation is whether the fixing of the building works wholly within lot 148 to the common property and the use of the existing services constitutes development to the common property requiring the owners corporation's consent to the making of an application.
The land on which the development is to be carried out is to be determined not only from the address and formal particulars of title shown on a development application form but also from the documents that must accompany the development application (Al Maha Pty Ltd v Huajun Investments Pty Ltd (2018) 233 LGERA 170 ("Al Maha") at [91]). If the accompanying documents reveal that part of the proposed development extends to land other than the land whose address and formal particulars of title are shown in the development application form, that other land is also the subject of the development application (Al Maha at [94]). If an essential part of the proposed development extends to other land, then that other land is also the subject of the development application (Owners - Strata Plan 37762 v Pham and Ors [2005] NSWLEC 500 ("Pham") at [32]).
In Owners Strata Plan 50411 v Cameron North Sydney Investments Pty Ltd (2003) 1 STR(NSW) 154 ("Cameron"), the Court of Appeal (CA) held per Heydon and Santow JJA (Giles JA in dissent) that an owner of a lot in a registered strata plan who applies to a consent authority for consent to carry out development wholly within the boundaries of that lot is not obliged to obtain and evidence the consent of the body corporate to the lodging of that application, at [162] - [163].
In Pham, Cowdroy J held that a development application for a spray booth to be constructed within a lot of a strata plan did require the consent to the making of a development application by the body corporate because the development application for the construction of the spray booth included works beyond the boundaries of the lot to the common property of the strata plan (three penetrations through the roof for vents and the excavation of the floor slab, at [19]). The Court held that in the absence of the body corporate's consent to the making of the development application, the council had no power to grant the consent (at [39]).
In Cameron, the development application lodged by Cameron North Sydney Investments Pty Ltd, the owner of the strata lot, clearly included building works (described at [16] and referred to at [18]) and inevitably, those building works required fixings into the common property for structural stability. Although Heydon JA noted that the works were "said to be entirely within lot 1" at [57] and [99]; it is impossible to build the works described at [16], being the "removal of shop front windows, the enclosure of the eastern end of Lot 1, the installation of new doors in the glass wall, and some alterations to the access to the amenities within the lot" without inserting a single fixing into the existing structure of the existing building. In addition, the use of the lot as a restaurant relied on existing services such as plumbing, wiring and so on. The CA held that the owners corporation's consent was not required for the making of the development application and that the application was for works "wholly within lot 1" at [157].
Similarly to the facts in Cameron, the office fitout of the space in lot 148 has included fixings to the soffit of the structural slab, the walls and floor for the stability of the building works, as well as the use of existing services. These fixings to common property can be distinguished from the more extensive works to common property carried out in Pham. As the fixing of building works to the common property and the use of existing services were not held to be works to the common property requiring the body corporate's consent to the making of a development application in Cameron, it follows that the CA implicitly characterised any fixings to the common property to support the building works as "works wholly within the lot", at [157]. For this reason, I am satisfied that the fixing of the building works within lot 148 to the common property and the use of existing services are not works to common property and do not require the consent of the owners corporation to the making of an application.
I accept the agreed submissions of the applicant and the Council that the BIC application is confined to works constructed within the cubic space that is lot 148. Any alterations carried out beyond the cubic space of lot 148, including the alterations to the pool gate, are not included in the BIC application and are the subject of the matter before NCAT.
[14]
Whether the consent of the owners corporation is required for the making of a Building Information Certificate application in respect of works within a lot in the strata plan
I accept the applicant's submissions on the interpretation of s 6.22(a) of the EPA Act. The "owner of the land on which the building is erected" may apply for a BIC, at s 6.22(a) of the EPA Act. The definition of "owner" in the EPA Act has the same meaning as in the Local Government Act 1993, at s 1.4 of the EPA Act. The "owner", in the dictionary of the Local Government Act, at (b), "in relation to land", is at (i), "every person who jointly or severally, whether at law or in equity, is entitled to the land for any estate of freehold in possession". The owner for the purposes of the BIC application is the owner of the cubic space of lot 148, the applicant.
At cl 49(1)(a) of the EPA Regulation, "the owner of the land to which the development application relates" may make a development application (Al Maha at [87] and [89]). In the case of a lot within a strata plan, the owner for the purposes of cl 49 is the owner of the lot (Cameron at [163]).
I do not accept the Council's contention that the difference in the wording of the two provisions necessarily means that only the owners corporation can consent to the making of a BIC application under s 6.22(a) of the EPA Act, whereas only the owner of the lot in a strata plan can consent to the making of a development application under cl 49 of the EPA Regulation. The Council's interpretation would result in the illogical outcome of allowing a majority of the owners corporation to effectively veto a BIC application, but not a development application. Haydon JA's reasoning and interpretation of "owner" in relation to cl 49 of the EPA Regulation is also pertinent to the meaning of "owner" in s 6.22(a) of the EPA Act, despite the differences in the wording of the respective provisions (Cameron at [148]-[161]) and I can find no reason to treat the reference to "owner" in s 6.22(a) of the EPA differently to the CA's finding in Cameron. I accept and adopt the applicant's submissions in relation to the definition of building including part of a building. I am satisfied that the textual context of s 6.22(a) of the EPA Act indicates that "owner" in s 6.22(a) also means the owner of a lot in a strata plan for the purposes of a BIC application made in relation to works within the lot. The owners corporation's consent is therefore not required for the BIC application.
[15]
The BIC application
I am satisfied that the BIC application clearly identifies the works in respect of which the certificate is sought, as shown on Maxam + Co plans in Ex A.
The Council is directed to issue a BIC for the works wholly within the cubic space of Lot 148 SP 63731.
[16]
The Development Application
Following Mr Barwick's evidence regarding the hours of operation and maximum number of people permitted, the applicant amended the Plan of Management (Ex H) and the applicant's version of the conditions of consent (Ex J) to reflect Mr Barwick's evidence and limited the hours of operation to 7am to 8pm Monday to Friday and 7am to 2pm Saturdays for a maximum of 45 people per day. Following the changes made to the development application, I am satisfied by Mr Barwick's evidence that the amenity issue raised by the residents of The Colonnades posed by the use of the shared bank of lifts by the users of the commercial tenancy at lot 148 has been sufficiently ameliorated by the terms of the proposal, including the maximum number of people permitted to use the tenancy per day and the limited hours of operation, reflected in the conditions of consent and the Plan of Management.
The development application does not relate to the common property, it relates to the use of lots 148 and 167 and is wholly contained within those lots. Therefore, the applicant is not obliged to obtain and evidence the consent of the owners corporation to the lodging of the development application (Cameron at [163]).
Two of the three existing commercial premises within The Colonnades have internal access to the foyer to allow patrons to use the disabled toilet in the foyer. Members of the public are therefore now able to access residential areas of The Colonnades. For this reason, I do not accept that the future corporate owner or employees pose an unacceptable security risk if they are able to access residential areas of The Colonnades. The Strata By-Laws (Ex K, By-Law 27) exclude employees of any corporate owner or occupier of a lot to use the pool area on Level 1.
I am satisfied that the owners corporation's contention regarding waste management has been adequately addressed by the terms of the proposal. Appropriate arrangements for waste management are made by the Plan of Management (Ex H, p 6) and I accept the planning experts' agreement that the Plan of Management, as amended, is acceptable. The parties agreed to the insertion of the words, "for the kerbside", to condition I3(c), to read:
" a) Any waste and recyclable material, generated by the approved offices, must not be collected from the kerbside between the hours of 10pm and 6am on any day.
(Reason: To ensure the amenity of surrounding properties)"
I have considered the parties' submissions and the evidence of the resident objectors. On the basis of all of the evidence before me including the amendments made to the proposal in response to Mr Barwick's evidence, the owners corporation's contention that the proposed use as office premises would have an unacceptable impact on the amenity and security of The Colonnades is not made out. I am satisfied that it is appropriate to grant development consent for the use of lot 148 for the purpose of office premises and lot 167 for car parking and bicycle storage for the office.
Orders
The orders of the Court are:
1. The appeal is upheld.
2. Development Application No. 294/18 for use of lot 148 in SP 63731 for the purpose of office premises and lot 167 in SP 63731 for car parking and bicycle storage for the office, at 30 Glen Street, Milsons Point, is approved, subject to the conditions of consent at Annexure A.
3. The First Respondent is directed to issue a Building Information Certificate for works within the cubic space of lot 148 in SP 63731 at 30 Glen Street, Milsons Point.
4. Modification Application No. 588/01/2 lodged on 11 September 2018 to modify Development Consent D588/01 to incorporate works-as-executed drawings into the development consent and authorise the use of lot 167 in SP 63731 to provide car parking and bicycle storage for the office, is refused.
5. The exhibits, other than exhibits 20, A, B, C and D, are returned.
Susan O'Neill
Commissioner of the Court
Annexure A (101 KB, pdf)
[17]
Amendments
06 August 2019 - Correction of typographical error at [62]
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: 06 August 2019
Parties
Applicant/Plaintiff:
The Bunker 2017 Pty Ltd
Respondent/Defendant:
North Sydney Council
Cases Cited (3)
Judgment
COMMISSIONER: On 15 November 2018, the Court consolidated proceedings in matter numbers 2018/326024 (the Development Application No. 294/18 appeal), 2018/325991 (the Modification Application No. 588/01/2 appeal) and 2018/326020 (the Building Information Certificate Application No. 30/18 appeal). These appeals are made pursuant to the provisions of ss 8.7(1), 8.9 and 8.25 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the deemed refusal of the development application for the use of lot 148 and lot 167 SP 63731 for the purposes of office premises and parking (the proposal); the deemed refusal of the modification application to modify Development Consent D588/01 to incorporate works-as-executed into the development consent and authorise the use of lot 167 to provide car parking and bicycle storage for the office (the modification application); and the refusal of the building information certificate application in relation to the existing structures within the cubic space of lot 148 (BIC application), at 30 Glen Street, Milsons Point (The Colonnades) by North Sydney Council (the Council).
On 28 May 2019, the Court joined the Second Respondent, the owner of the common property in Strata Plan No. 63731 (the owners corporation), to the proceedings (The Bunker 2017 Pty Ltd v North Sydney Council [2019] NSWLEC 1241). In summary, the owners corporation contends that the proposal and the existing works encroach and rely on the common property and owners consent has not been provided by the owners corporation as owner of land to which the proposal and the existing works relate.
On 3 June 2019, the applicant advised the Court that the modification application appeal was no longer pressed and requested the Court make an order refusing the modification application (Ex D).