The Owners Strata Plan 83556 trading as Aspect Apartments v Dehsabzi [2020] NSWLEC 175

Land and Environment Court New South Wales

Medium Neutral Citation: The Owners Strata Plan 83556 trading as Aspect Apartments v Dehsabzi [2020] NSWLEC 175 Hearing dates: 17-19 November 2020 Date of orders: 15 December 2020 Decision date: 15 December 2020 Jurisdiction: Class 4 Before: Preston CJ Decision: The Court: (1) Declares that complying development certificate number 00064397 issued by Professional Certification Group on 22 April 2020 for tenancy fitout of pizza shop at Shop 1, 154-156 Sailors Bay Road, Northbridge NSW 2063 (the site) is invalid. (2) Declares that Pamir Dehsabzi and Anita Dehsabzi have breached s 4.2 of the Environmental Planning and Assessment Act 1979 in carrying out the following works in basement B1 of the building on the site, being part of the common property in Strata Plan 83556, without first obtaining development consent: (a) installation of a grease trap and arrester with associated piping; (b) installation of utility services, including gas, electricity, water and waste water drainage with associated pipes, conduits and wires; (c) installation of a compressor and associated pipes, wires, conduits and structural supports (the common property works). (3) Orders Pamir Dehsabzi and Anita Dehsabzi to refrain from using Lot 12 in Strata Plan 83556 for the purpose of food and drink premises, including as a pizza shop, unless and until development consent is obtained to use Lot 12 and the common property works for the purpose of food and drink premises, including as a pizza shop, and a building information certificate is obtained with respect to the works carried out in Lot 12 in reliance on the complying development certificate and the common property works. (4) Orders Pamir Dehsabzi and Anita Dehsabzi to remove the works carried out in Lot 12 in reliance on the complying development certificate and the common property works and to reinstate Lot 12 and the common property to the condition or state that Lot 12 and the common property were in immediately before the carrying out of the works in Lot 12 and the common property works. (5) Suspends order (4) for 12 months from the date of the order to allow Pamir Dehsabzi and Anita Dehsabzi to make: (a) a development application seeking development consent to use Lot 12 and the common property works for the purpose of food and drink premises, including as a pizza shop; and (b) an application for a building information certificate with respect to the works carried out in Lot 12 in reliance upon the complying development certificate and the common property works. (6) Grants all parties liberty to apply to vary orders (4) or (5), including to extend the period of suspension of order (4). (7) Orders the respondents to pay the applicant's costs of the proceedings. Catchwords: JUDICIAL REVIEW – complying development certificate (CDC) – tenancy fitout as a pizza shop – shop in strata-titled building – works required in common property to make pizza shop functional – land on which development to be carried out – whether lot only or also common property – whether owner's consent of Owners Corporation needed for application – whether sham application if no works proposed in common property – type of complying development – internal building alteration and/or change of use of premises – construction of application as to development proposed – if change of use, whether complied with criteria for specified complying development and development standards – need for notice from water utility before CDC issued – notice not obtained – need for food and drink premises to comply with AS 4674-200 – works on lot will not comply – if internal building alteration, whether complied with criteria for specified complying development – need for building to have consent for use – CDC will give consent for use – need for inspection of site of development before CDC issued – inspection and record of inspection non-compliant with regulatory requirements – works on common property without consent – relief – declarations and injunctions granted Legislation Cited: Environmental Planning and Assessment Act 1979 ss 1.4, 4.2, 4.26, 4.27, 4.28 Environmental Planning and Assessment Regulation 2000 cll 129B, 129C State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 cll 1.17, 5.1, 5.2, 5.3, 5.4 Land and Environment Court Act 1979 s 25B Willoughby Local Environmental Plan 2012 Cases Cited: ACR Trading Pty Ltd v Fat-sel Pty Ltd (1987) 11 NSWLR 67 Al Maha Pty Ltd v Huajun Investments Pty Ltd (2018) 233 LGERA 170; [2018] NSWCA 245 Baron Corporation Pty Ltd v Council of the City of Sydney (2019) 243 LGERA 338; [2019] NSWLEC 61 Cooper and Wilton v Maitland City Council (1992) 130 LGERA 217 Currey v Sutherland Shire Council (2003) 129 LGERA 223; [2003] NSWCA 300 F Hannan Pty Ltd v Electricity Commission of NSW (No 3) (1985) 66 LGRA 306 Great Lakes Council v Lani (2007) 158 LGERA 1; [2007] NSWLEC 681 Hunter Industrial Rental Equipment Pty Ltd v Dungog Shire Council (2019) 101 NSWLR 1; [2019] NSWCA 147 King v Great Lakes Shire Council (1986) 58 LGRA 366 Muswellbrook Shire Council v Hunter Valley Energy Pty Ltd (2019) 238 LGERA 295; [2019] NSWCA 216 North Sydney Council v Ligon 302 Pty Ltd (1996) 185 CLR 470 People for the Plains Inc v Santos NSW (Eastern) Pty Ltd (2017) 220 LGERA 181; [2017] NSWCA 46 Pioneer Concrete (Qld) Pty Ltd v Brisbane City Council (1980) 145 CLR 485 Sericott Pty Ltd v Snowy River Shire Council (1999) 108 LGERA 66; [1999] NSWCA 480 Warringah Shire Council v Sedevcic (1987) 10 NSWLR 335 Weston Aluminium Pty Ltd v Environment Protection Authority (2007) 82 ALJR 74; [2007] HCA 50 Woollahra Municipal Council v Carr (1982) 47 LGRA 105 Category: Principal judgment Parties: Strata Plan 83556 trading as Aspect Apartments (Applicant) Pamir Dehsabzi (First Respondent) Anita Dehsabzi (Second Respondent) Ben Smith (Third Respondent) Representation: Counsel: Mr M Astill (Applicant) Mr R White (First and Second Respondent) Mr R de Meyrick (Third Respondent)