Thomas & anor v Council of the City of Sydney Bourke Street Pty Ltd v Council of the City of Sydney

The site

1. The site is occupied by a part two and three story building that is used as a hotel/pub. The building takes up the majority of the site except for a rear courtyard adjacent Chippen Lane which is used as a beer garden. Pedestrian access is gained via both Regent Street and Meagher Street. A high wall is built on the boundary of Chippen lane and a door provides egress/ingress from the lane.

The Planning Controls

1. State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 designates a wide range of very minor works as exempt and removes them from the need for the obtaining of consent through the statutory processes. The policy designates further types of development as "complying' and thus capable of approval through the issuing of a complying development certificate where such certificates may be issued by a private certifier. It is agreed between the parties that this policy does not obviate the need for development consent for the works the subject of the building certificate or the orders given.
2. Under Sydney Local Environmental Plan 2012 (LEP 2012) the site is zoned B4 mixed use. The relevant objectives of the B4 zone are as follows ● To provide a mix of compatible land uses. ● To integrate suitable business, office, residential, retail and other development in accessible locations so as to maximise public transport patronage and encourage walking and cycling. ● To ensure uses support the viability of centres.
3. It is agreed between the experts that the works, being associated with commercial premises, are classes as permissible with development consent in the B4 (mixed use) zone.
4. The site is not a heritage item but is located within the Chippendale Heritage conservation area (C 9) under LEP 2012.
5. Given the site is within a conservation area, cl. 5.10 Heritage conservation applies to the site. The objectives of cl 5.10 of LEP 2012, 'Heritage Conservation' at sub-cl (1), are to conserve the environmental heritage of the City of Sydney and the heritage significance of heritage conservation areas, including associated fabric, setting and views.
6. Relevant to these proceedings, demolition, moving or alteration of fabric requires consent cl 5.10(2). The consent authority must, before granting consent in respect of a heritage conservation area, consider the effect of the proposed development on the heritage significance of the area, at sub-cl (4).
7. The following clauses of LEP 2012 are relevant to the application but it is agreed the development meets the controls: 1. Cl 4.3 Building height 2. Cl 4.4 Floor space ratio
8. Clause 6.21 of LEP 2012 requires consideration of design excellence. The objective of the clause is to deliver the highest standard of architectural, urban and landscape design. Pursuant to sub-cl (4) consent must not be granted to development unless, in the opinion of the consent authority, the proposed development exhibits design excellence.
9. It is agreed between the planning experts that: the appearance (of the awning) to the public domain could be improved, subject to being supported by a heritage expert, and such an amendment is warranted. The proposed orders address this deficiency by staying the demolition of the awning to allow the applicant to seek heritage advice and councils input into the means of improving the utilitarian appearance of the awning. The consideration under 6.21(4) will be relevant to any future application for the regularisation of the awning.
10. In relation to heritage the following clauses of development control plan 2012 apply: 1. cl.3. 9. 6 (Heritage conservation areas) 2. cl 3.9.7 (contributory items) Both of these clauses require new development to respect neighbouring buildings and the character of the area. 1. cl. 3.10.3.Significant Architectural Building Types - Pubs and Hotels older than 50 years), which states that post supported awnings should only be constructed where there is documentary or physical evidence of an early post supported awning attached to the building.

Consent orders

1. In considering the consent orders, the Court's Practice Note - Class 1 Development Appeals (paragraphs 35-6) provides: Application for final orders by consent of parties 36. Any application for consent final orders in development appeals will be listed before the Court for determination. The parties will be required to present such evidence as is necessary to allow the Court to determine whether it is lawful and appropriate to grant the consent or approval having regard to the whole of the relevant circumstances, including the proposed conditions. The consent authority will be required to demonstrate that relevant statutory provisions have been complied with and that any objection by any person has been properly taken into account. Additionally, the consent authority will be required to demonstrate that it has given reasonable notice to all persons who objected to the proposal of the following: (i) the content of the proposed orders (including the proposed conditions of consent); (ii) the date of the hearing by the Court to consider making the proposed consent orders; and (iii) the opportunity for any such person to be heard, or that, in the circumstances of the case, notification is not necessary.
2. In summary the Practice Note requires:

• evidence to show that approval is lawful and appropriate including whether any statutory provisions have been complied with;
• whether any objection has been properly taken into account; and
• whether reasonable notice has been given to all persons who objected to the proposal, the date of the hearing and the opportunity to be heard at the hearing.

1. There are no public submissions to either of the matters, and no members of the public addressed the Court as part of the proceedings. As a result the following paragraphs focus on whether the proposed orders are lawful and appropriate.
2. Expert planning evidence was provided to the Court by David Ryan (for the applicant) and Penny Wong (for the respondent). Their joint report identified that they were in agreement about the following: 1. Consent is required for the unauthorised works, and wasn't sought by the applicant. 2. The awning has been reduced in size since the order was issued, and is now set back from the western boundary. 3. That the appearance of the awning to the public domain could be improved, subject to being supported by a heritage expert, and that such an amendment is warranted. 4. That if a development application had been submitted it would have been accompanied by an acoustic report.
3. Initially the planning expert's did not agree in relation to the following matters: 1. whether adequate information exists for an assessment to be undertaken; 2. The impact of the awning on the significance of the Heritage conservation area; 3. The visibility of the stairs from the public domain; 4. The patron capacity of the deck and beer garden and the resulting amenity impacts from the stairs; 5. Legal status of the deck itself and its relevance to the proceedings; 6. Whether the use of the deck is authorised for the purpose of a bar and the consumption of alcohol associated with the Hotel/pub use on the ground floor; 7. The role of the external stairs in intensifying this use; and 8. Finally whether the structures have an acceptable impact on the character of the contributory building and the significance of the Heritage conservation area
4. During the proceedings the experts provided evidence that they have concluded that these matters are addressed in the requested consent orders by providing a path for the appropriate planning assessment of the works and the management of the facilities in the interim period.
5. The planning experts also agreed to the following in relation to the effect and operation of the proposed consent orders: 1. The timeframes provided are adequate to allow the preparation, assessment and determination of an application to Council. 2. The limitation on the number of patrons on the deck area is related to its size (18.7sqm, reference Exhibit 6), and the reasonable application of 1sqm/person. This was supported by an acoustic report, prepared by The Acoustic Group (exhibit 6) which concluded that: I conducted measurements whilst 19 persons were on the deck and when the deck had been cleared which revealed that the first floor deck did not give rise to any measurable increase above the background level and as such complies with the OLGR noise criteria. 1. The time limit of 10pm resulted from a consideration of the acoustic report (exhibit 6) and in conjunction with the limitation of patron numbers.
6. In relation to the consideration required cl 5.10 (Heritage Significance) of LEP 2012 the experts agreed that the orders were appropriate, even though they resulted in the unauthorised works being retained, in the interim, because: 1. the timeframe provided within the orders was seen as brief and therefore any impact was not seen as permanent or irreversible; 2. the works are limited to the rear of the property and not the area of the building that has the highest conservation value; 3. since the works were undertaken to reduce the size of the awning it is not highly visible; 4. the consent orders provide a path for the assessment of the awning and the appropriate heritage input into the final treatment of the structure.
7. I have reviewed the comments made by experts and I am satisfied that they appropriately consider the issues raised by the contentions and accept their conclusions.

The building certificate

1. The Act establishes a regime that permits the regularisation of, or protection from enforcement, for works undertaken where development approval is required, but has not been.
2. Section 149D of the Act identifies the considerations relevant to the determination of an application for a building certificate: 149D Obligations of council to issue building certificate (1) The council must issue a building certificate 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 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) If the council refuses to issue a building certificate, it must inform the applicant, by notice, of its decision and of the reasons for it. (3) The reasons must be sufficiently detailed to inform the applicant of the work that needs to be done to enable the council to issue a building certificate. (4) The council must not refuse to issue or delay the issue of a building certificate by virtue of the existence of a matter that would not entitle the council to make any order or take any proceedings of the kind referred to in subsection (1) (a). (5) Nothing in this section prevents the council from informing the applicant of the work that would need to be done before the council could issue a building certificate or from deferring its determination of the application until the applicant has had an opportunity to do that work.
3. The building certificate application sought to regularise the unauthorised building works comprising steel stairs at rear of building and opening in internal walls on Level 1. The scope of the building certificate did not cover the rear awning.
4. The Council refused the application for a building certificate on 15 February 2016. Pursuant to s149F of the Act the applicant has lodged an appeal against the Councils determination.
5. The powers of the Court on appeal are those conferred by s 149F(3) of the Act: (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.
6. In Ireland v Cessnock City Council (1999) 110 LGERA 311 at [37] Bignold J set out the relevant issues as being first, the structural adequacy of the building, and secondly, the probability of development consent being granted had such approval been sought. The latter consideration was described in Taipan Holdings Pty Ltd v Sutherland Shire Council [1999] NSWLEC 276 at [58] as being consideration of a notional development application, which is an appropriate exercise for the Court to undertake in the exercise of the statutory discretion conferred by s 149G(3).
7. The provisions relating to the issuing of a building certificate are contained in Part 8 of the Act. Section 149D(1) provides that the Council must issue a building certificate if it appears that the matters specified in s 149D(1)(a) and (b) are satisfied. The effect of a building certificate is relevantly to prevent the Council from making an order under the Act or the Local Government Act 1993 "requiring the building to be repaired, demolished, altered, added to or rebuilt" in relation to matters existing or occurring before the date of issue of the certificate (s 149E(1)(a)), or for a period of seven years from the date of issue of the building certificate in relation to matters arising only from the deterioration of the building as a result solely of fair wear and tear (s 149E(2)(a)).
8. The council provided the following reasons for refusal of the Building Certificate: 1. The barrier to the unauthorised external stairs does not comply with Building Code of Australia D2.16 Barriers to prevent falls. Openings in the barrier are greater than 125mm sphere which must not be able to pass through any opening measured from the nosing; 2. There is no consent for the use of the first floor for an art gallery, or the use of the offices on the second floor. The amenity impacts resulting from the use of these areas and stairs between the ground and first floor has not been assessed by Council. The current approved use of level 1 and 2 is for back packer accommodation.
9. It is noted in the evidence provided by the David Ryan that since the issue of the refusal of the building certificate, a development consent has been issued by the respondent for the use of part of the premises as a 'gallery' (Application number D/2015/1545, referenced in exhibit 4). Issue one falls away in the consent orders by the exclusion of the stairs from the scope of the certification. Is the construction structurally adequate?
10. The respondent has tendered a structural certification for the external stairs from Tinslay Consulting engineers, and a certification for the awning from Birzulis Associates engineers. These meet the requirement for establishing structural adequacy. Probability of development consent
11. Given the comments at [33], and on the basis of the evidence in relation to the internal works, I think that if consent had been sought it is probable it would have been given.
12. The Short Minutes of Order agreed by the parties include the following: The Court notes: The parts of the building to which the application for a building certificate the subject of this appeal relates are Level 1 of the premises and the 'external stair' located at the premises (the premises being the Lord Gladstone Hotel at 115-117 Regent St, Chippendale); 1. The respondent has agreed to issue a building certificate for level 1 of the premises; 2. The external stair is the subject of a s.121B order in the proceedings 2016/151750 Findings
13. It was accepted by Counsel for the respondent that the obligations of council to issue building certificate under s149D of the Act are met in relation to the internal works, but not for the stairs. In relation to the external stairs the Council argues that s149 (1)(a) (ii) still applies and they seek for the stairs to remain part of the orders. The Council has agreed to them being directed to issue a building certificate in relation to the internal works to level 1.
14. I find that the works proposed to be regularised meet the requirements of cl 5.10 (4) and cl 6.21(4) of the LEP.
15. In taking into consideration the evidence provided by the experts, and the requested means of resolving this dispute, effected in the agreed short minutes of order, I am satisfied that it is lawful and appropriate to make the order directing Council to issue a building certificate for level 1 of the premises, having regard to the whole of the circumstances.

The order

1. The council issued Order 2(a) on 4 September 2015. The Order requires the owner of the land to: Demolish (or remove) a building (being the awning and external stair located at the rear of the premises). The order refers to the following images to demonstrate the scope of work:
2. A period of 40 days was given for compliance with the Order.
3. Section 121B of the Act provides for the giving of Orders and is in the following form: (1) An order may be given to a person by: (aa) the Minister or the Secretary (but only in connection with a project to which Part 3A applies, in connection with State significant infrastructure or in connection with development for which the Minister or Secretary is or has been the consent authority), or (a) a council, or (b) any other person who exercises functions as a consent authority, except in relation to complying development for which a complying development certificate has been issued, to do or to refrain from doing a thing specified in the following Table if the circumstances specified opposite it in Column 2 of the Table exist and the person comes within the description opposite it in Column 3 of the Table.
4. In that table, Order 2A requires the person served to demolish or remove a building. The order can only be served under circumstances (a) Building is erected without prior consent of consent authority in a case where both prior development consent and prior construction certificate is required and is to be served on the owner of the building.
5. Therefore there are a number of tests to be met. Firstly, in this case, the Order must require demolition or removal of a building secondly, it must be shown that the work required consent and finally, it must be served on the appropriate entity. All these factors must also exist at the time of the courts consideration of the matter.
6. The applicant is appealing the order pursuant to the provisions of s121ZK (1) of the Act.
7. Pursuant to s121K(4) on hearing an appeal, the Court may: (a) revoke the order, or (b) modify the order, or (c) substitute for the order any other order that the person who gave the order could have made, or (d) find that the order is sufficiently complied with, or (e) make such order with respect to compliance with the order as the Court thinks fit, or (f) make any other order with respect to the order as the Court thinks fit. Did the works require prior development consent?
8. It is agreed between the parties and their experts that the works required consent prior to construction, which was not sought. Does the order seek to demolish or remove a building?
9. The order adequately details the required demolition and removal of building fabric required to affect the order. Was the order served on the appropriate entity?
10. The order was served by the Council of the City of Sydney on 4 September 2015 on Mr George Michael Thomas and Mr Rudolph Franco Bergagnin, as the owners of 115-117 Regent Street. The orders of the Court identify the relevant party for each of the new orders, referencing column 3 of s121B(b) of the Act.
11. The Short Minutes of Order agreed by the parties include the following: The Court notes: The applicant has provided an undertaking that pending the issue of an occupation certificate, referred to in Order 2(a) below, or March 2017 whichever is earlier, that no more than 19 people will use the external deck at any time, up to 10pm any night. Findings
12. As part of the proceedings an acoustic report was tendered that demonstrates that 19 patrons can utilise the rear deck, without creating a measureable increase in background noise (exhibit 6). Given the rear deck is unauthorised and its impacts have not been assessed through a development application process I find it is appropriate to convert the above undertaking from the applicant to an additional parameter of the modified 1(b) order. Doing so will provide interim parameters to the use of the structure to ensure its impacts are appropriate. I note that in serving the order council included in its reasons that it had received complaints from residents in the vicinity in response to the increased use of the rear of the premises.
13. The modified order will provide regulatory certainty that the acoustic impacts accord with the findings of the tendered acoustic assessment (exhibit 6) that (with 19 patrons) the first floor deck will not give rise to any measurable increase above the background level and as such complies with the OLGR noise criteria.
14. As such I have made modified the order to give effect to this agreement, until such time as an Occupation Certificate is issued by the principal certifying authority.
15. Given this order was not included in the scope of the consent orders sought by the parties submissions were invited from the parties.
16. In taking into consideration the evidence provided by the experts, and the requested means of resolving this dispute, affected in the agreed short minutes of order, I am satisfied that it is lawful and appropriate to make the orders requested. For the reasons provided in [51-53] I also find it is appropriate to convert the undertaking provided by the applicant to an additional requirement of order 1(b) pursuant to s121B.

Orders Appeal Number 2016/151796 (building certificate):

1. By consent, the orders of the Court are: 1. The appeal is upheld in part. 2. That the respondent is directed to issue a building certificate for level 1 of the premises, being the Lord Gladstone Hotel at 115-117 Regent St, Chippendale. 3. The exhibits may be returned, except for Exhibits 1, 2 and 3 Appeal Number 2016/151750 (order):
2. The orders of the Court are: 1. The appeal is upheld in part. 2. Order (No. 2 (a)) pursuant to section 121B of the Environmental Planning and Assessment Act 1979 given by the respondent's and dated 4 September 2015 is substituted with the following orders: 1. Order (No. 1 (b)) pursuant to section 121B of the Environmental Planning and Assessment Act 1979 that the use of the building being the 'external stair' located at the rear of the premises cease unless and until an occupation certificate has been issued for either: 1. Level 1 of the premises and the external deck at level 1 of the premises; or 2. The stairs and external deck at level 1 of the premises. 1. The order referred to in 2(a) above is to be served on the owner of the premises, and the licensee, and is stayed from operation until 1 March 2017. 2. Order (No. 2 (a)) pursuant to section 121B of the Environmental Planning and Assessment Act 1979 that the 'awning' located at the rear of the premises is to be demolished, and that the period of time for compliance with this order be 'by 1 October 2017'; 3. The order referred to in 2(c) above is to be served on the owner of the building. 4. Order (No. 1 (b)) pursuant to section 121B of the Environmental Planning and Assessment Act 1979 requiring the use of the building being the 'external deck' located at the rear of the premises be restricted as follows: 1. That it be occupied by no more than 19 people at any one time; and 2. It will cease being occupied at 10pm any night until end of that day's trading hours. 1. The order in (e) be served on the owner of the premises and the licensee of the premises. 2. The timeframe for compliance with this order, 2(e) above, is seven days from the date of the service of a sealed copy of these orders on the owner of the premises and the licensee, the restriction is to apply until such time as an Occupation certificate is issued for the external deck at level 1 of the premises. 1. The exhibits may be returned, except for Exhibits 1, 2 and 3 ……………. D M Dickson Commissioner 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: 27 September 2016