Land and Environment Court New South Wales Medium Neutral Citation: Lee v Randwick City Council [2021] NSWLEC 1200 Hearing dates: 11-12 March 2021 Date of orders: 12 March 2021 Decision date: 12 March 2021 Jurisdiction: Class 1 Before: Clay AC Decision: Proceedings 2020/194590 See orders below at [36] Proceedings 2020/221586 See orders below at [37] Proceedings 2020/221566 See orders below at [38] Catchwords: APPEALS – modification application – development application for use – building information certificate – work done otherwise than in accordance with development consent for approved dual occupancy – works required to regularise unlawful work – overlooking – bulk and scale Legislation Cited: Environmental Planning and Assessment Act 1997, ss 6.25, 8.7, 8.9, 8.25, Land and Environment Court Act 1997, ss 34, 34A Randwick Local Environmental Plan 2012 Cases Cited: Ireland v Cessnock City Council (1999) 110 LGERA 311 [1999] NSWLEC 250 Category: Principal judgment Parties: Matthew Po-Shen Lee (First Applicant) Yung Jung Lee (Second Applicant) Lanny Li-Yue Fang (Third Applicant) Randwick City Council (Respondent) Representation: Counsel: M Staunton (Applicant) S Flanigan (Respondent) Solicitors: Hartley Solicitors (Applicant) Randwick City Council (Respondent) File Number(s): 2020/194590 2020/221566 2020/221586 Publication restriction: Nil Judgment This decision was given as an extemporaneous decision. It was given orally and has been revised and edited prior to publication. 1. COMMISSIONER: There are three appeals before this court, the details of which I will set out below. The common factor between the appeals is that they are required in order to remedy the vice caused by the carrying out of development otherwise than in accordance with a development consent. 2. Regrettably, such matters are often before this Court where, after work is carried out, there are steps taken to regularise that work and ultimately, such persons that undertake the unlawful work realise that it is not a saving of any sort of resources or money to carry out what they wish and later seek permission in retrospect for it, rather than seek permission ahead of time. 3. That said, it is not part of my role to consider any form of punishment or to consider the fact of the works having been carried out, except to note their existence and the steps being taken to remedy any problems caused by that work having been carried out. I approach the matter where the applicant gets no benefit for having carried out the work but, on the other hand, suffers no disbenefit in the assessment of the application in accordance with various provisions of the Environmental Planning and Assessment Act 1979 (EP&A Act). 4. On 10 February 2017, the Randwick City Council (Council) granted development consent to development application number 660/2016 for the erection of an attached dual occupancy on the land known as 36-38 Jennings Street, Matraville. The dual occupancy included attached open cabanas in the rear yards and was subject to certain conditions which required some modifications to the plans the subject of that approval. 5. On 25 August 2017, the council approved modification 660/2016A, for upper mezzanine levels and adjoining roof terraces to the approved dual occupancy. On 19 April 2018, the council approved modification application 660/2016B which approved the deletion of swimming pools which had been earlier approved and the enclosure of the open cabanas in the rear yards of the dual occupancy. On 5 October 2018, the respondent granted consent to development application number 615/2018 for a Torrens title subdivision of the attached dual occupancy. 6. As I have earlier noted, a substantial portion of the work to construct the attached dual occupancy has been carried out. There are now three appeals before the court. In proceedings 194/590 of 2020, it is an appeal pursuant to s 8.25 of the EP&A Act against the council's deemed refusal of a building certificate application number BC/18/2020 which seeks, in effect, to regularise the unauthorised works (BIC appeal). 7. Proceedings number 221586/2020, which is an appeal against the respondent's deemed refusal of DA/277/2020, which seeks consent for use of the unauthorised works, the subject of the BIC appeal (use appeal). That is an appeal pursuant to s 8.7 of the EP&A Act. Proceedings number 221566/2020 is an appeal pursuant to s 8.9 of the EP&A Act against the council's refusal of modification application number 615/2018B, which seeks a modification of conditions of the subdivision consent. 8. The appeals in respect of the modification application and use appeal fall within the provisions of s 34AA of the Land and Environment Court Act 1979 (LEC Act). The BIC appeal does not. 9. In accordance with ss 34 and 34AA LEC Act, yesterday, I presided over a conciliation. I inspected the site in the company of the parties, their representatives and the experts they had retained. Discussions occurred during the course of the site inspection and thereafter. The Applicant proposed certain amendments to its proposal and there was a significant level of agreement between the experts as to an appropriate way forward. The parties, however, were not in a position to enter into an agreement pursuant to s 34 LEC Act and I terminated the conciliation. The hearing then proceeded today, albeit the Council making no submission that the appeals should be dismissed. SITE AND LOCALITY 1. The site is lot 19 in Deposited Plan 8936 known as 36-38 Jennings Street, Matraville (site). It is rectangular in shape, with an east to west orientation. The site has a frontage to Jennings Street of 15.24 metres to the east with northern and southern boundaries of 43.585 metres, giving a total site area of 663.9 square metres. 2. Vehicular and pedestrian access is via the frontage to Jennings Street. The site has a fall of 2.8 metres from the front to the rear which is a slope of around, on average, 6.6%. The surrounding area is characterised by low-density residential development comprising single dwelling houses, semi-detached dwellings and dual occupancies. There is an eclectic form of design of the developments, some older form and some more recent developments which adopt modern and contemporary architectural designs. It is clear that the area is in a form of transition, that is to say that the older dwellings are gradually being replaced with more modern and contemporary dwellings including dual occupancies. PLAN AND STATUTORY CONTEXT 1. The site is within zone R2 low-density residential, pursuant to Randwick Local Environmental Plan 2012 (RLEP 2012). Development for the purpose of dual occupancy (attached) is permitted with consent in the zone. 2. Pursuant to cl 4.4 and the floor space ratio map, the maximum floor space ratio of 0.5:1 applies to the site. Pursuant to cl 4.3 of RLEP 2012 and the height of buildings map, a maximum building height of 9.5 metres applies to development on the site. 3. Clause 4.1D of RLEP 2012 allows development consent to be granted for subdivision of dual occupancies for which development consent was granted prior to 6 July 2018 which therefore applies to the subject site. 4. Although the existing building exceeds both the maximum floor space control and the height control, as will be seen, there is nothing in the proposal before me which requires the exercise of a power under cl 4.6 of RLEP 2012 because no part of that which I am asked to do involves the approval of a building which exceeds the height control nor to create floor space which results in an exceedance of floor space control. 5. In relation to the BIC appeal, s 6.25 of the EP&A Act sets out the circumstances in which a building information certificate can be issued and the effect of issuing such a certificate. The section provides: (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 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 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 land 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. 1. Section 8.25(3) of the EP&A Act sets out the powers of the court on appeal in the following terms: (3) on hearing an 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. It is appropriate to add that in considering a building information certificate appeal, the task is generally understood to consider the application as a "notional or hypothetical development application". This concept found its origins in a decision of Bignold J in Ireland v Cessnock City Council (1999) 110 LGERA 311 [1999] NSWLEC 250 at [31]-[32]. It is unnecessary to set out his Honour's words because the principle is well-known and the approach has been consistently used by Commissioners of this court over a number of years and it is the approach I take, and indeed the experts have taken, in their assessment of this application. THE PROPOSAL 1. It is fair to say that the proposal has evolved in a significant way through the course of not simply the proceedings but more particularly, the conciliation process yesterday. The applicant is to be applauded for recognising the need to address the contentions raised by the Council and the Council is to be applauded for its approach to consideration of the matter and its willingness, although appropriate, to properly consider and embrace solutions if they were appropriate and satisfactory solutions as far as the Council's expert is concerned. 2. The applicant's proposal involves, in summary: 1. Removal of some of the unauthorised work. 2. Undertaking a number of remedial works. 3. Accepting that a building information certificate should only be granted after the remedial works are carried out. 4. The modification of the subdivision consent such that a certificate of subdivision and release of the subdivision plans could only occur after the work required to be carried out is in fact carried out to the satisfaction of the council. 1. The issues which have hitherto been raised by the council were identified by reference to contentions which I summarise as follows: 1. Floor space ratio. The gross floor area of the proposed development was excessive, resulting in impacts on neighbouring properties, both in terms of overlooking and in terms of the bulk of the proposal. 2. Building height. An excess of height leading to similar impacts as that related to excessive floor space. 3. Built form reflective of what the council said was the excessive floor space and height resulting in the unsatisfactory impacts referred to above. 4. The proposal being contrary to the objectives of the R2 zone for the same reasons as in the preceding contentions. 5. Impacts on neighbouring properties concerns, in particular visual privacy in addition to visual amenity as well as, to a lesser extent, acoustic privacy and overshadowing. 6. Substantially the same development. This relates to the proposed modification of the subdivision consent whereby the requirement as it then was for the issue of an occupation certificate prior to the grant of a subdivision certificate was to be deleted. 7. Subdivision of dual occupancies. In effect, this contention related to the timing of the subdivision and the potential for the subdivision or the dual occupancy to occur without the building itself having been constructed. 8. Public interest and precedent. This contention embraced each of the earlier contentions and having regard to orderly planning and submission received, it was inappropriate to grant development consent. PUBLIC SUBMISSION 1. The modification application and development application were notified in accordance with the Council's policy to local residents and in the relevant circulating local newspaper. There was only one submission made in response to that notification, from a resident two doors away from the subject site in the southerly direction. 2. None of the immediate neighbours to the west, north or south objected to the development application. The objector was concerned about there having been work unlawfully carried out, and the impact of that work on matters such as privacy, and there were also complaints about interference as a consequence of the construction which already occurred. The matters raised by the objector have been taken into account by the experts and taken into account by me in my assessment of these applications. THE EVIDENCE 1. Planning evidence was given by Mr A Betros, retained by the Applicant and Ms R Reid retained by the Council. They had prepared a comprehensive joint report in accordance with the Court's directions which clearly set out their respective positions on the issues then before the Court. There was a large deal of agreement between the experts at that time as to the remedial measures to deal with issues such as overlooking created by additional windows and balconies which had been unlawfully constructed. 2. The principal disagreement between the experts as disclosed in the first joint report, was the treatment of the rear of the dual occupancy which had additional floor space added to it at an upper level, where there had been originally articulation in the approved building, and a rather bland and potentially overbearing rear or western elevation. It was that rear or western elevation which was the subject of the reconsideration by the Applicant during the course of the conciliation and I once again applaud both experts for their attention to this matter and ways in which, without favouring the fact of existing work having been carried out, they came to a position which I am about to identify. 3. As a consequence of the discussions between the experts and the parties, amendments were made to the Applicant's proposal and which were the subject of a supplementary joint report produced by the experts today. In this supplementary joint report, the amendments to the prospective works are described in summary as follows: 1. Removal of the west-facing glass doors and adjacent walls to the "approved roof deck" of the uppermost level as well as removal of the internal dividing wall to the small rooms behind. 2. Incorporation of a planter box 1 metre high and 1 metre wide and 1 metre deep at the roof deck level. 3. Reduction in the height of the rear building formed by removing the height of the wall by approximately 700 millimetres. 4. Incorporation of additional articulation treatment to the rear façade in the form of external louvres and the extension of a white masonry wall. 5. Privacy treatment in the form of fixed upward angle louvre to side-facing windows or translucent glazing to a height of 1.6 metres in other circumstances. 1. The planners conclude that as a consequence of all the changes proposed by the applicant, that the built form will be: 1. compatible with the size and scale of development in the locality and compatible with the character of the locality including existing and likely future character; 2. incorporate sufficient articulation to all facades to allow for adequate solar access, light and ventilation but also suitably relieving the built form as viewed from the streetscape, rear yards of the subject and adjoining properties and from all surrounding neighbours; 3. ensure that the development will not adversely impact upon the amenity of adjoining properties in relation to visual loss of privacy, overshadowing and views. 4. the streetscape as constructed is acceptable because of the extent of articulation which it provides and its therefore compatibility of the built form with adjoining and nearby properties in Jennings Street. 1. The planners have also addressed the zone objectives in the supplementary report and are satisfied that the objectives are met notwithstanding the existing non-compliance of floor space ratio and height variation. 2. The planners also agree that it is appropriate that no subdivision certificate be provided nor the subdivision plans released until the work the subject of the building information certificate is carried out and it is not necessary that there be an occupation certificate issued prior to the subdivision certificate or the release of the subdivision plans. CONSIDERATION 1. I accept the evidence of the experts. Two matters were apparent to me on the site inspection yesterday. One was that the western façade required some articulation and treatment and second, that there was considerable opportunity for overlooking into a number of neighbouring properties from the upper level. 2. Whilst the initially approved building provided for greater articulation at the rear, the objective of the provision of articulation is to reduce the overall appearance of bulk of the development. By the reduction of the westerly wall in height, by the pulling back of the balcony some considerable distance and the provision of a planter well back from the western edge of the building, there is a significant reduction in the bulk of the building and its western façade. 3. Further, the architectural treatment proposed for the façade at the ground and first levels provides relief from the blank façade and makes a clear articulation and breaks up the façade in the horizontal plain with an emphasis on the verticality of the central column. 4. It is undoubtedly appropriate that the building be constructed prior to the issue of a certificate of subdivision and in that respect, for the reasons articulated by the experts in relation to that matter and in relation to the zone objectives, the objectives of the height control and the floor space ratio control provisions and the matters for consideration under the EP&A Act, in my view, it is in a form now appropriate for the relevant consents of approvals to be granted. 5. The parties have agreed on the conditions of development consent and the modification application and indeed on the terms of the grant of the building information certificate. Those conditions properly embrace with excellent particularity the work to be carried out and so that both on the plans and on the conditions, there will be no doubt as to that which is required to be undertaken in order to bring the dual occupancy into an appropriate form for its ultimate use. 6. For the foregoing reasons, I make the following orders: 7. In proceedings 2020/194590: 1. The appeal is upheld. 2. The Applicant is to carry out the construction works approved by Condition 1 of development consent number DA/277/2020 at 36-38 Jennings Street, Matraville. 3. The Applicant is to notify the Council in writing when it has complied with Order (2). 4. The Council is directed to issue a building information certificate in respect of building information certificate application number BC/18/2020 as amended by Plans DA-03.10 Rev 4, DA-04.00 Rev 4, DA-04.10 Rev 4, DA-04.20 Rev 4, DA-04.30 Rev 4, DA-04.40 Rev 4, DA-05.00 Rev 4, DA-06.00 Rev 4, DA-06.10 Rev 4 within 14 days of the Council's reasonable satisfaction that the Applicant has complied with Orders (2) and (3). 5. The exhibits other than Exhibits 1, A, B, C, F, G, H and J be returned. 1. In proceedings 2020/221586: 1. The appeal is upheld. 2. Consent is granted to development application number DA/277/2020 for use of dwellings and alterations and additions at 36-38 Jennings Street, Matraville in accordance with conditions in Annexure A. 3. The exhibits other than Exhibits 1, A, B, C, F, G, H and J be returned. 1. In proceedings 2020/221566: 1. The appeal is upheld. 2. Modification application number DA/615/2018/B of development consent DA/615/2018 for subdivision of the approved dual occupancy into two lots at 36-38 Jennings Street, Matraville is approved and conditions 2 and 8 are amended in accordance with Annexure A. 3. The exhibits other than Exhibits 1, A, B, C, F, G, H and J be returned. ………………………… P Clay Acting Commissioner of the Court 221586.20 Annexure A (338011, pdf) 221566.20 Annexure A (196105, pdf) ********** 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 April 2021