Land and Environment Court New South Wales Medium Neutral Citation: Kat v Waverley Council [2021] NSWLEC 1051 Hearing dates: Conciliation conference on 21 July 2020, 3 September 2020, 15 October 2020, 4 November 2020 and 15 December 2020 Date of orders: 1 February 2021 Decision date: 01 February 2021 Jurisdiction: Class 1 Before: Peatman AC Decision: See orders at [10] below Catchwords: APPEAL – building information certificate – conciliation conference – building erected without development consent and not in compliance with the Building Code of Australia – non-compliance with fire regulations – performance compliance with Deemed to Satisfy provisions of the Building Code of Australia – agreement between the parties – orders made Legislation Cited: Environmental Planning and Assessment Act 1979 Environmental Planning and Assessment Regulation 2000 Land and Environment Court Act 1979 Cases Cited: Abou-Anton v City of Ryde Council [2018] NSWLEC 1334 Chami v Lane Cove Council [2015] NSWLEC 1003 Itaoui v Wollongong City Council [2020] NSWLEC 1260 Kekatos v Ku-ring-gai Council [2020] NSWLEC 1548 Marion McDowell and Associates Pty Ltd v Georges River Council [2018] NSWLEC 1109 Vigor Master Pty Ltd v Hornsby Shire Council [2019] NSWLEC 1110 Texts Cited: Building Code of Australia Category: Principal judgment Parties: Nic Kat (Applicant) Waverley Council (Respondent) Representation: Counsel: M Jaku (Solicitor) (Applicant) A Hudson (Solicitor) (Respondent) Solicitors: Jaku Legal (Applicant) Wilshire Webb Staunton Beattie (Respondent) File Number(s): 2019/354318 Publication restriction: No Judgment 1. COMMISSIONER: This appeal relates to the Respondent, Waverley Council (Council) refusing the Applicant's Building Information Certificate Application No. BC-23/2019 (BICA) on 10 October 2019 for the sunroom adjacent to Lot 1 in Strata Plan 82661, known as 1/72 Plowman Street, North Bondi. The sunroom was built without Council approval. 1. the proceedings have been brought to the Court pursuant to s 8.25 of the Environmental Planning and Assessment Act 1979 (EPA Act). 2. the proceedings fall within Class 1 of the Court jurisdiction pursuant to s 17 (d) of the Land and Environment Court Act 1979 (LEC Act). 3. the Court has power to hear and determine the matter pursuant to s 39 of the LEC Act and s 8.25(3) of the EPA Act. 4. On 29 July 2019, the Applicant lodged the BICA with Council. The BICA included a copy of the Registered Strata Plan dated 17 August 2009 together with a Change of Use By-Law (AG42576S). The Change of Use By-Law includes a Special By-Law No. 2. Clause 21.1 of Special By-Law No. 2 provides for the exclusive use and enjoyment for specified lots of "those parts of the common property described below". Relevantly, it states "Lot/Unit 1 The shaded courtyard and sunroom area referred to in the Plan of Whelans Insites Pty Limited in Annexure "D" being part of Annexure "X" hereto". 5. The sunroom area is located at the rear of the site and is attached to the main dwelling. The sunroom has an area of 21.87m2. The sunroom area is a timber frame construction with the internal framing appearing to be constructed from a post and beam pergola clad in timber. It appears to have been built between 2009 and 2011. 6. On 10 October 2019 Council refused the BICA for the following reasons: "Waverley Council is not satisfied regarding matters specified in section 6.25(1) of the Act, is refusing the Building Information Certificate and will be issuing a Development Control Order #3 (Demolition Works Order) Reason: Circumstances exists that a Development Control Order #3 will be issued by Waverley Council as the timber frame sunroom structure at the rear of the Residential Flat Building at subject premises is unauthorised and is not considered habitable as it does not comply with the 2019 Building Code of Australia's (BCA) building, health of fire safety requirements in that: 1. FP1.5, FP1.9 & F1.12 – Moisture from the ground must be prevented from causing undue dampness or deterioration of building elements. Unhealthy and dangerous conditions or loss of amenity for occupants due to inadequate subfloor ventilation. 2. Part B1 Structural Provision BP1.1 Structural Reliability – Inadequate termite control, lack of subfloor ventilation allowing water to pond under structure allowing for rotting timbers, swelling and shrinkage of soil effecting structure. 3. BCA 2019 Part F3 non-compliant ceiling heights in that all habitable rooms require a height of not less than 2.4m for not less than two-thirds of the floor area BCA 2019 non-compliant fire safety requirements where the structure is a danger to occupants and adjoining buildings. Refer BCA Section C clauses CP1, CP2, Clauses 2.5, 3.6(f), 3.7, fire resistance requirements in Table 3 for type A construction and C3.2 & C3.4 for protection of openings in external walls of the room or space. 4. BCA 2019 non-compliant fire safety requirements where the structure is a danger to occupants and adjoining buildings. Refer BCA Section C clauses CP1, CP2, Clauses 2.5, 3.6(f), 3.7, fire resistance requirements in Table 3 for type A construction and C3.2 & C3.4 for protection of openings in external walls." 5. On 10 October 2019 Council issued a Notice of Intention to Give an Order under s 9.34 and Schedule 5 of the EPA Act in terms of Order No. 3 (Demolition Works Order) set out in Schedule 5 of the EPA Act requiring "demolish the unauthorised timber framed works known as sun room at rear of residential flat building". The Notice of Intention to Give an Order dated 10 October 2019 was issued to the Owners Strata Plan 82661. 1. The Court arranged a conciliation conference under s 34(1) of the LEC Act between the parties, which was held on 21 July 2020, 3 September 2020, 15 October 2020, 4 November 2020 and 15 December 2020. I presided over the conciliation conference. 2. At the conciliation conference, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. This decision involved: 1. The Applicant be granted leave to amend Building Information Certificate Application No. BC-23/2019 to rely upon the following plans: 1. Architectural Plans prepared by MOWA Studio: 1. Drawing No. CD_1, Cover Page, Revision E dated 22 October 2020; 2. Drawing No. CD_2, As-Built Site Plan, Revision E dated 22 October 2020; 3. Drawing No. CD_3, As-Built_Ground Level, Revision E dated 22 October 2020; 4. Drawing No. CD_4, Demolition Plan, Revision E dated 22 October 2020; 5. Drawing No. CD_5, Proposed Plan, Revision E dated 22 October 2020; 6. Drawing No. CD_6, Reflective Ceiling Plan, Revision E dated 22 October 2020; 7. Drawing No. CD_7, Elevations 01, Revision E dated 22 October 2020; 8. Drawing No. CD_8, Elevations 2, Revision E dated 22 October 2020; 9. Drawing No. CD_9, Sections, Revision E dated 22 October 2020; and 10. Drawing No. CD_10, Construction Details, Revision E dated 22 October 2020. 1. Fire Sprinkler System Plans prepared by Fahrenheit Global: 1. Drawing No. 2020.123.F-000, Legends, Notes and Specifications, Issue C dated 27 October 2020; 2. Drawing No. 2020.123.F-001, Fire Sprinklers System – Site Plan, Issue C dated 27 October 2020; and 3. Drawing No. 2020.123.F-002, Fire Sprinklers System – Ground Level Plan, Issue C dated 27 October 2020. 1. Detail and Level Survey prepared by S.J Surveying Services Pty Ltd dated 10 September 2020. Legislation LEC Act ss 17 and 39 Section 17 Class 1—environmental planning and protection appeals The Court has jurisdiction to hear and dispose of the following— …(d) appeals, objections and applications under ss...8.25...of the EPA Act Section 39 Powers of Court on appeals (1) In this section, appeal means an appeal, objections, reference or other matter which may be disposed of by the court in proceedings in Class 1, 2 or 3 of its jurisdiction. (2) In addition to any other functions and discretions that the Court has apart from this subsection, the Court shall, for the purposes of hearing and disposing of an appeal, have all the functions and discretions which the person or body whose decision is the subject of the appeal had in respect of the matter the subject of the appeal. (3) An appeal in respect of such a decision shall be by way of rehearing, and fresh evidence or evidence in addition to, or in substitution for, the evidence given on the making of the decision may be given on the appeal. (4) In making its decision in respect of an appeal, the Court shall have regard to this or any other relevant Act, any instrument made under any such Act, the circumstances of the case and the public interest. (5) The decision of the Court upon an appeal shall, for the purposes of this or any other Act or instrument, be deemed, where appropriate to be the final decision of the person or body whose decision is the subject of the appeal and shall be given effect to accordingly. (6) Notwithstanding any other provision of this section, if an appeal relates to an application made to a council within the meaning of the Local Government Act 1993 or a consent authority within the meaning of the EPA Act and that council or consent authority may not approve of, consent to, or deal with, or grant a permission in respect of, the application except after consultation with, or with the concurrence or approval of, any person or body – (a) The Court may determine the appeal whether or not the consultation has taken place and whether or not the concurrence or approval has been granted, and (b) In a case where the concurrence or approval has been granted – the Court may vary or revoke any conditions imposed by that person or body or may impose any conditions that could have been imposed by that person or body. (6A)(Repealed) (7) The functions of the court under this section are in addition to and not in derogation from any other functions of the Court. (8) This section (other than subsection (5)) does not apply to proceeding under ss 30 or 31 of the Access to Neighbouring Land Act 2000. EPA Act ss 6.23; 6.25; 8.25 Section 6.23 Making of applications for building information certificates (1) Applications for building information certificates are to be made to the council for the area in which the land to which the application relates is situated. (2) The regulations may provide for the procedure for making and dealing with applications for building information certificates. Note— Division 7.4 enables the regulations to prescribe the fee for an application for a certificate. Section 6.25 Issue, nature and effect of building information certificate (1) A building information certificate is to be issued by a council only 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 repaired, 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) A building information certificate is a certificate that states that the council will not make an order or take proceedings referred to in subsections (3) and (4). (3) A building information certificate operates to prevent the council – (a) from making an order (or taking proceedings for the making of an order or injunction) under this At or the Local Government Act 1993 requiring the building to be repaired, demolished, altered, added to or rebuilt, and (b) from taking civil proceedings in relation to any encroachment by the building onto land vested in or under the control of the council, in relation to matters existing or occurring before the date of issue of the certificate. (4) A building information certificate operates to prevent the council, for a period of 7 years from the date of issue of the certificate – (a) from making an order (or taking proceedings for the making of an order or injunction) under this Act or the Local Government Act 1993 requiring the building to be repaired, demolished, altered, added to or rebuilt, and (b) from taking civil proceedings in relation to any encroachment by the building onto lad vested in or under the control of the council, in relation to matters arising only from the deterioration of the building as a result solely of fair wear and tear. (5) However, a building information certificate does not operate to prevent a council from making a development control order that is a fire safety order or a building product rectification order (within the meaning of the Building Products (Safety) Act 2017). (6) An order or proceeding that is made or taken in contravention of this section is of no effect. Section 8.25 Appeals with respect to building information certificates (1) An applicant— (a) who is dissatisfied with a council's refusal to issue a building information certificate under Part 6, or …may appeal to the Court. (2) The appeal may be made only within 6 months after the date on which the person is given notice of the decision appealed against… (3) On hearing the appeal, the court may do any one or more of the following— (a) direct the council to issue a building information certificate in such terms and on such conditions as the Court thinks fit; (b) revoke, alter or confirm a notice to supply information, (c) make any other order that it considers appropriate. Environmental Planning and Assessment Regulation 2000 (EP&A Regulations) cl 280 Clause 280 Application for a building certificate (1) An application for a building certificate in relation to the whole or 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 owners' consent to make the application, or … Jurisdictional Prerequisites 1. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties' decision if the parties' decision is a decision that the Court could have made in the proper exercise of its functions. The parties' decision involves the Court exercising the function under s 39 of the LEC Act and s 8.25(3) of the EPA Act and the parties explaining how each prerequisite has been met, as follows: 1. Identified that the BICA is located within the Local Government Area of Waverley Council (s 6.23 EPA Act); 2. When lodged the BICA had owners' consent (cl 280 EP&A Regulations). The owners' consent filed with the Class 1 Application stated: "The Owners of Strata Plan 82661 do not support the application for a building certificate of Nic Kat but will be guided by and bound by Waverley Council's determination. In the interests of promoting harmony amojnt [sic – amongst] the unit holders it has agreed to the making of this application." However, at the commencement of the Conciliation Conference an objector, Ms Kelly (Secretary of the Owners' Corporation and resident), spoke on behalf of the Owners Corporation and indicated to the Court that the Owners' Corporation for SP 82661 no longer consented to the BICA. The orders have been amended to reflect the need for owners' consent to the building works. 3. The BICA was refused by Council on 10 October 2019. The Applicant appealed against the Council's refusal of consent, pursuant to s 8.25(1) of the EPA Act. 4. Section 8.25(3) of the EPA Act sets out the powers of the Court on appeal as follows: (3) On hearing the appeal, the Court may do any one or more of the following— (a) direct the council to issue a building information certificate in such terms and on such conditions as the Court thinks fit, (b) revoke, alter or confirm a notice to supply information, (c) make any other order that it considers appropriate. 1. In considering the appeal, the Court re-exercises the functions of the Council in determining the application for a building information certificate, in accordance with section 39(2) of the LEC Act, but has the additional powers conferred by section 8.25(3) of the EPA Act, referred to in [4(4)] above. 2. Council's Statement of Facts and Contentions, filed on 3 February 2020 (SOFAC), raised issues relating to the Building Code of Australia, including subfloor ventilation, floor to ceiling heights and fire safety requirements (BCA Issues). 3. During the conciliation conference the parties, through their various experts, agreed on certain works that, if carried out, would resolve the BCA Issues (Agreed Works). The Agreed Works are identified in the plans and documents listed in paragraph 7 below and, in summary, comprise: 1. Replace sunroom timber floor with new reinforced, polished concrete slab on ground (retain existing floor levels); 2. Apply vapour barrier beneath slab and damp proof course to prevent moisture from ground and termite risk management; 3. Provision of new residential sprinkler system; 4. Reinstall walls, doors and windows to sunroom to comply with Australian Standards and National Construction Code; and 5. Ensure grade of the land external to sunroom directs water away from the new concrete slab. The plans and documents setting out the detail to the amendments are also set out at [3(1)] above. 1. While the Owner's Corporation for SP 8266 has not yet granted consent to the Agreed Works, that is not a jurisdictional bar to the Court making orders in accordance with the parties' agreement. Lack of owner's consent for the Agreed Works does not prevent the determination of the BICA and the Court's orders in accordance with the EPA Act, even if the Agreed Works cannot be carried out. If, notwithstanding the Court's orders, consent from the Owner's Corporation for SP 82661 is not obtained, the only consequence is that Council will not be required to issue a building information certificate and the sunroom would not attract the protection that such a certificate would afford. 2. The parties agree that orders should be made, pursuant to section 8.25(3)(a) of the EPA Act, directing the Council to issue a building information certificate to the Applicant in relation to the sunroom, on condition that within 12 months the Council is satisfied that the Agreed Works have been carried out with the consent of the owners corporation. [1] 3. The parties also agree that the grant of liberty to apply is appropriate in circumstances where compliance with the orders could be delayed for a range of reasons out of the control of either party. [2] 4. I am satisfied that the parties' decision is one that the Court could have made in the proper exercise of its functions, as required by s 34(3) of the LEC Act. The amended plans and expert reports address each of the issues raised in Council's SOFAC, including subfloor ventilation (the amended floor plan as set out above; the floor to ceiling heights and the fire safety requirements which were all BCA issues. 5. As the parties' decision is a decision that the Court could have made in the proper exercise of its functions, I am required under s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties' decision. 6. The Court orders: 1. The Applicant is granted leave to amend Building Information Certificate Application No. BC-23/2019 to rely upon the following plans: 1. Architectural Plans prepared by MOWA Studio: 1. Drawing No. CD_1, Cover Page, Revision E dated 22 October 2020; 2. Drawing No. CD_2, As-Built Site Plan, Revision E dated 22 October 2020; 3. Drawing No. CD_3, As-Built_Ground Level, Revision E dated 22 October 2020; 4. Drawing No. CD_4, Demolition Plan, Revision E dated 22 October 2020; 5. Drawing No. CD_5, Proposed Plan, Revision E dated 22 October 2020; 6. Drawing No. CD_6, Reflective Ceiling Plan, Revision E dated 22 October 2020; 7. Drawing No. CD_7, Elevations 01, Revision E dated 22 October 2020; 8. Drawing No. CD_8, Elevations 2, Revision E dated 22 October 2020; 9. Drawing No. CD_9, Sections, Revision E dated 22 October 2020; and 10. Drawing No. CD_10, Construction Details, Revision E dated 22 October 2020. 1. Fire Sprinkler System Plans prepared by Fahrenheit Global: 1. Drawing No. 2020.123.F-000, Legends, Notes and Specifications, Issue C dated 27 October 2020; 2. Drawing No. 2020.123.F-001, Fire Sprinklers System – Site Plan, Issue C dated 27 October 2020; and 3. Drawing No. 2020.123.F-002, Fire Sprinklers System – Ground Level Plan, Issue C dated 27 October 2020. 1. Detail and Level Survey prepared by S.J Surveying Services Pty Ltd dated 10 September 2020. 1. The Applicant is granted leave to amend Building Information Certificate Application No. BC-23/2019 to rely upon the following documents: 1. Building Code of Australia Report prepared by GRS Building Reports Pty Ltd dated 23 September 2020; and 2. Fire Engineering Report prepared by Lote Consulting, Revision C, dated 23 September 2020. 1. The appeal is upheld. 2. Pursuant to section 8.25(3)(a) of the Environmental Planning and Assessment Act 1979 (NSW), Waverley Council is directed to issue a building information certificate to the Applicant in relation to the sunroom adjacent to Lot 1 in SP 82661, known as unit 1/72 Plowman Street, North Bondi, (Land) if Waverley is satisfied that the works identified in the plans and documents referred to in Order (1) above have been carried out with the consent of the Owner's Corporation for Strata Plan 82661 for the Land in accordance with those plans and documents within 12 months from the date of these orders (or within any extended period under Order 5 below). 3. Liberty to apply to the Court is granted to the Applicant to extend the time to comply with order (4) on giving 2 days' notice. ………………………… M Peatman Acting Commissioner of the Court Architectural Plans (1507441, pdf) Fire Sprinkler System Plans (610269, pdf) Detail and Level Survey (1524712, pdf) Building Code of Australia (201732, pdf) Fire Engineering Report (2812665, pdf) ********** Endnotes 1. Chami v Lane Cove Council [2015] NSWLEC 1003 at [543]; Marion McDowell and Associates Pty Ltd v Georges River Council [2018] NSWLEC 1109 at [17], [39] and [40]; Kekatos v Ku-ring-gai Council [2020] NSWLEC 1548 at [3] and [7]; Vigor Master Pty Ltd v Hornsby Shire Council [2019] NSWLEC 1110 at [21] and [92(2)]; Abou-Anton v City of Ryde Council [2018] NSWLEC 1334 at [18] and [110]. 2. Itaoui v Wollongong City Council [2020] NSWLEC 1260 at [22] and [30]; Kekatos v Ku-ring-gai Council [2020] NSWLEC 1548 at [3] - [4] and [7]. 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: 01 February 2021