Land and Environment Court New South Wales Medium Neutral Citation: Daoud v Georges River Council [2022] NSWLEC 1067 Hearing dates: Conciliation conference on 1 December 2021 and 4 February 2022 Date of orders: 14 February 2022 Decision date: 14 February 2022 Jurisdiction: Class 1 Before: Peatman AC Decision: The Court orders that: (1) The appeal is upheld. (2) The Respondent is directed to issue a Building Information Certificate No. 149D2021/0037 with respect to the blockwork and masonry walls located on the side and rear boundaries of the land at Lot 15, Section 50, Deposited Plan 5023, known as 23 Louisa Street, Oatley NSW 2223, subject to, and conditional upon, compliance with the conditions set out in Annexure A. Catchwords: BUILDING INFORMATION CERTIFICATE – unauthorised boundary walls – encroachment – height control – conciliation conference – agreement between the parties – orders Legislation Cited: Environmental Planning and Assessment Act 1979, ss 1.5, 6.22, 6.23, 6.24, 6.25, 6.26, 8.25, Pt 1, Div 9.3, Sch 5 Environmental Planning and Assessment Regulation 2000, cll 280, 293 Georges River Local Environment Plan 2021, cl 1.8A Kogarah Local Environmental Plan 2012 Land and Environment Court Act 1979, ss 17, 34, 39 Local Government Act 1993, Swimming Pools Act 1992 Swimming Pools Regulation 2018 Texts Cited: Building Code of Australia Kogarah Development Control Plan 2013 Category: Principal judgment Parties: Robert Daoud (Applicant) Georges River Council (Respondent) Representation: Counsel: V Conomos (Solicitor) (Applicant) S Wilson (Solicitor) (Respondent) Solicitors: Conomos Legal (Applicant) Georges River Council (Respondent) File Number(s): 2021/251058 Publication restriction: No Judgment 1. COMMISSIONER: This appeal relates to the refusal of Building Information Certificate Application No. 149D2021/0037 (BIC) by Georges River Council (Council) on 1 September 2021, relating to unauthorised building works involving the construction of a rendered and painted masonry blockwork wall across the rear boundary of No. 23 Louisa Street, Oatley, that exceeds the maximum height control of 1.8m under Kogarah Development Control Plan 2013 (Kogarah DCP2013); together with side masonry blockwork walls which required finishing on the outer sides, and one of which encroached onto the property known as 25 Louisa Street, Oatley: 1. The appeal is brought pursuant to s 8.25(1) of the Environmental Planning and Assessment Act 1979 (EPA Act); 2. The appeal falls within Class 1 of the Court's jurisdiction pursuant s 17(d) of the Land and Environment Court Act 1979 (LEC Act). 3. The statutory function or power to determine the proceedings is s 8.25(3) of the EPA Act, and ss 34(3) and 39(1) of the LEC Act. 4. The site is known as No. 23 Louisa Street, Oatley NSW 2223 and is legally described as Lot 15, Section 50 in Deposited Plan 5023. The site is trapezoidal, having an eastern frontage of 20.115m to Louisa Street, a western (rear) boundary of 20.115m and side boundaries of 50.29m. The site has a total area of approx. 1,012m2 (the Site). 5. Although the BIC refers to a. "149D" application, I note that this is a reference to a former version of the EPA Act, and that the correct section is s 6.24(1) of the EPA Act. 1. The Court arranged a conciliation conference under s 34(1) of the LEC Act between the parties, which was held on 1 December 2021 and 4 February 2022. 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 the Court directing the Council to issue a Building Information Certificate with respect to the blockwork and masonry walls located on the side and rear boundaries of the Site, subject to, and conditional upon, compliance with the conditions set out in Annexure A. Background 1. The Site is located on the western side of Louisa Street, Oatley, between Wonoona Parade East and Frederick Street and comprises a single allotment that is occupied by a principal dwelling house, together with a secondary dwelling and an inground swimming pool at the rear. 2. The wall across the rear boundary of the site varies in height (from the approved finished surface height of the subject property) between 2,105mm at the northern end and increases in height to 2,790mm at the southern end. 3. The construction of the block work wall on the Site was carried out in conjunction with works associated with the construction of a new two storey dwelling with front fence and conversion of the existing outbuilding into a secondary dwelling approved under DA151/2013, dated 17 September 2013. 4. The property is located within an established low-density residential neighbourhood, approximately 300m to the north-east of the Oatley town centre. 5. The topography of the Site and the surrounding area falls in an easterly direction, with a gradient in the vicinity of 1 in 10m, that is a 10m fall from the rear boundary to the front boundary. 6. Single storey dwelling houses adjoin the Site on both sides (Nos. 21 & 25 Louisa Street). The dwelling house to the rear (No. 10 Ada Street) is also a single storey dwelling. However, due to the fall of the land, the rear of the dwelling is elevated above ground level by approximately 2/3rds of a storey. 7. An aerial view of the site and surrounding area is provided in Figure 1 below: Figure 1: Aerial view of the site and surrounding are Source: Statement of Facts and Contentions 29 September 2021; nearmaps. 1. Below is a view from the Site's pool enclosure adjacent to the secondary dwelling showing the walls and part of No. 10 Ada Street at the rear of the Site, and of the side boundary with 25 Louisa Street Oatley. Figure 2: Photograph from the Pool in the Site showing part of the secondary dwelling, and part of the rear blockwork and masonry walls on the rear and side boundaries. Source: Statement of Facts and Contentions dated 29 September 2021; Photograph 1 on page 3. 1. A previous application for a Building Information Certificate (No. 149D2019/0040) was lodged with Council on 2 August 2019. However, by letter dated 16 April 2020, Council determined that a Building Information Certificate should not be issued with respect to the works. 2. On 13 October 2020, Development Control Order No. 3 under Div 9.3 and Sch 5, Pt 1 of the EPA Act was issued by Georges River Council, on the grounds that following receipt of a complaint and verification by inspection, a blockwork wall had been constructed without authorisation adjacent to the rear and side boundaries of the premises at the Site. 3. On 16 April 2021, Council wrote to the Applicant advising that the Development Control Order dated 13 October 2020 had not been complied with and that Council intended to commence legal proceedings if the non-compliance continued. 4. In response, the Applicant lodged a further application for a Building information Certificate to Council on 26 June 2021, seeking to regularise the unauthorised works. 5. The Applicant was dissatisfied with Council's refusal to issue the BIC and filed this appeal on 1 September 2021, in accordance with the time provisions in cl 293 (2) of the Environmental Planning and Assessment Regulation 2000 (EPA Regulation): 293 Deemed refusal period for Court appeals … (2) For the purposes of section 8.25(1)(b) of the Act, the period of 40 days after the following (whichever last occurs) is prescribed— (a) the date of the application for the building information certificate, (b) if the applicant receives a notice under section 6.26(2) of the Act to supply information—the date on which the information is supplied. 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 8.25(3) of the EPA Act and ss 34(3) and 39(2) of the LEC Act to direct the Council to issue the BIC subject to the conditions in Annexure A. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties identified the jurisdictional prerequisites, and other issues of relevance in these proceedings as set out below and explained how the jurisdictional prerequisites have been satisfied. Submissions by consent 1. In relation to the Kogarah Local Environmental Plan 2012 (Kogarah LEP2012): as the development application was lodged prior to 8 October 2021 (being the date the Georges River Local Environmental Plan 2021 (GRLEP2021) was gazetted), the development application is to be assessed under Kogarah LEP2012. 2. Pursuant to the savings provision in cl 1.8A of GRLEP2021. 1. The Site is zoned' R2 Low Density Residential' under Kogarah LEP2012. 2. The block work and masonry walls are permissible in the R2 zone with consent. 1. The parties agree that compliance with the conditions for issue of the BIC will render the blockwork and masonry walls consistent with the objectives for development within the R2 Zone. 2. In relation to the Australian Standards, Building Code of Australia and Swimming Pools Act 1992 (Pools Act): 1. While not a jurisdictional prerequisite, the parties note that a Structural Engineer has provided certification that the blockwork and masonry walls have been constructed in accordance with the relevant Australian Standards, including those required by the Pools Act and Swimming Pools Regulation 2018. A copy of this certificate is Annexure "2" to the Jurisdictional Statement dated 3 February 2022. 2. While not a jurisdictional prerequisite, the parties also note that an appropriately accredited certifier has provided certification that the block work and masonry walls have been constructed in accordance with the Building Code of Australia, including in relation to drainage. A copy of this certification is Annexure "3" to the Jurisdictional Statement dated 3 February 2022. 3. While it is not strictly a jurisdictional prerequisite, the parties note that they are in agreement that compliance with the agreed conditions of issue of the BIC would entitle the Council to be satisfied that, in accordance with s 6.25(1)(a) of the EPA Act; 4. (a) there is no matter discernible by the exercise of reasonable care and skill that would entitle the Council, under the EPA Act or the Local Government Act 1993: 1. to order the building to be repaired, demolished, altered, added to or rebuilt, or 2. to take proceedings for an order or injunction requiring the building to be demolished, altered, added to or rebuilt, or 3. to take proceedings in relation to any encroachment by the building onto land vested in or under the control of the Council. 1. 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. 2. The owners of No.10 Ada Street (at the rear of the Site) objected to the size of the rear boundary fence. Upon inspection by Council's officers, Council upheld the objection. I inspected the Site in the company of the lawyers for Council and the Applicant, the Applicant, Council officers, and the owners of 10 Ada Street. I inspected the Applicant's land, and then inspected the boundary wall in contention from the Ada Street property. 3. In addition to the issues with the rear wall at the Site: 1. The side boundary wall with 25 Louisa Street Oatley encroaches upon 25 Louisa Street; and 2. The outer side of the boundary wall with 21 Louisa Street, and another adjoining property to the north, has not been completed. 1. In accordance with ss 6.22(a) and 6.23 of the EPA Act, the Applicant lodged the BIC with the Council on 26 June 2021. 2. Section 6.24(1) of the EPA requires the Council: 6.24 Issue of building information certificates (cf previous s 149D) (1) A council is (subject to this Division) required to issue a building information certificate as soon as practicable after an application for the certificate is made to the council. …… 1. Section 6.25 of the EPA Act relates to the issue, nature and effect of a BIC as follows: 6.25 Issue, nature and effect of building information certificate (cf previous ss 149D, 149E) (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. (Emphasis added.) s 6.25: Ins 2017 No 60, Sch 6.1. Am 2017 No 69, Sch 2.4 [3]. 1. Section 6.26 of the EPA Act is applicable as follows: 6.26 Miscellaneous provisions relating to building information certificates (cf previous ss 149A, 149C, 149D, 149G): (1) A building information certificate may apply to the whole or to part only of a building. (Emphasis added.) 1. I note that Council has the power to issue the BIC pursuant to s 6.25(1) of the EPA Act, and that pursuant to s 6.26 of the EPA Act, the blockwork and masonry walls may be included in the BIC notwithstanding that they are only part of the improvements erected on the Site. 2. Section 8.25 of the EPA Act is as follows: 8.25 Appeals with respect to building information certificates (cf previous s 149F) (1) An applicant— (a) who is dissatisfied with a council's refusal to issue a building information certificate under Part 6, or (b) who is dissatisfied with a council's failure to issue a building information certificate within the period prescribed by the regulations, or (c) who is dissatisfied with a notice from the council to supply information in connection with an application for a building information certificate, 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 or the end of the deemed refusal period referred to in subsection (1). (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. (Emphasis Added.) 1. As the owner of the Site, the Applicant was authorised under cl 280 of the EPA Regulation to lodge the BIC with Council, and to file the appeal in accordance with the time provisions of s 8.25(2) of the EPA Act and cl 293(2) of the EPA Regulation. 2. The site is zoned R2 Low Density Residential under the provisions of Kogarah LEP2012, which provides: Zone R2 Low Density Residential 1 Objectives of zone • To provide for the housing needs of the community within a low density residential environment. • To enable other land uses that provide facilities or services to meet the day to day needs of residents. 2 Permitted without consentHome occupations 3 Permitted with consentBed and breakfast accommodation; Boarding houses; Car parks; Centre-based child care facilities; Community facilities; Dual occupancies; Dwelling houses; Environmental protection works; Flood mitigation works; Group homes; Health consulting rooms; Hospitals; Oyster aquaculture; Places of public worship; Pond-based aquaculture; Public administration buildings; Recreation areas; Residential care facilities; Respite day care centres; Roads; Semi-detached dwellings; Seniors housing; Tank-based aquaculture 4 Prohibited Any development not specified in item 2 or 3 1. On 8 October 2021. the Kogarah LEP2012 was repealed and was succeeded by the GRLEP2021. Clause 1.8A of the GRLEP2021 provides savings and transitional provisions enabling the BIC to be assessed under the Kogarah LEP2012: GRLEP2021: 1.8A Savings provisions relating to development applications If a development application has been made before the commencement of this Plan in relation to land to which this Plan applies and the application has not been finally determined before that commencement, the application must be determined as if this Plan had not commenced. Note— However, under Division 3.5 of the Act, a development application may be made for consent to carry out development that may only be carried out if the environmental planning instrument applying to the relevant development is appropriately amended or if a new instrument, including an appropriate principal environmental planning instrument, is made, and the consent authority may consider the application. The Division requires public notice of the development application and the draft environmental planning instrument allowing the development at the same time, or as closely together as is practicable. EPA Act – 1.5 Meaning of "development"(cf previous s 4) (1) For the purposes of this Act, development is any of the following— … (c) the erection of a building, (d) the carrying out of a work, (f) any other act, matter or thing that may be controlled by an environmental planning instrument. (2) However, development does not include any act, matter or thing excluded by the regulations (either generally for the purposes of this Act or only for the purposes of specified provisions of this Act). (3) For the purposes of this Act, the carrying out of development is the doing of the acts, matters or things referred to in subsection (1). Note— There are the following categories of development under this Act— (a) exempt development (development that is exempt from the assessment and consent or approval requirements of this Act), (b) development requiring development consent under Part 4, including the following— (i) complying development (development that complies with pre-determined development standards and requires consent in the form of a complying development certificate by a consent authority or registered certifier), (ii) development that requires consent by a council or other public authority specified as the consent authority (including by a local planning panel or delegated council staff on behalf of a council) …… 1. The building of the blockwork and masonry walls is development for the purposes of the EPA Act and for the Kogarah LEP2012. 2. The building of the blockwork and masonry walls is permissible within the R2 Zone of Kogarah LEP2012. 3. The relevant provisions of the Kogarah DCP2013 Part C4.2 is as follows: "C1 – LOW DENSITY HOUSING KOGARAH DCP 2013 – September 2013 C1 - 40 Note: Some fences are permitted as exempt development under the State Environmental Planning Policy (Exempt and Complying Development Codes) 2008. Objectives (a) Ensure fences and walls improve amenity for existing and new residents and contribute positively to the streetscape and adjacent buildings. (b) Ensure materials used in fences and walls are of a high quality and in keeping with the existing streetscape character and character of the dwelling. (c) Ensure fences and walls are sympathetic to the topography. (d) Protect and retain significant fences and walls and those that represent important character elements. (e) Ensure retaining walls minimise the impact of run off on adjoining properties and public land. (f) Minimise interference with natural drainage patterns (g) The design and materials of front fences and walls are compatible with those fences and walls that contribute positively to the streetscape (h) Ensure retaining walls minimise the impact of run off on adjoining properties and public land. …. 4.2.2 Side and rear fences (1) Side and rear boundary fences must not be higher than 1.8m on level sites, or 1.8m as measured from the low side where there is a difference in level either side of the boundary. An additional 300mm of lattice is permitted for privacy screening. (2) In the case of corner sites, the 1.8m height is only permitted behind the front building line." 1. The blockwork and masonry fences meet the objectives in Part C4.2 of the Kogarah DCP2013 in relation to objectives (c) to ensure that the fencing is sympathetic to the topography, and (f) to minimise interference with natural drainage patterns. 2. In relation to the neighbours' land, and Council's specific objections to the blockwork and masonry boundary walls, I note: 1. The owners of 10 Ada Street Oatley have attractive vegetation along their boundary adjacent to the Site. There exists a colour bond fence on the boundary, and the blockwork and masonry wall in dispute rises above the colour bond fence. The parties, and the owners of 10 Ada Avenue, have agreed to: 1. The colour bond fence on the boundary being either replaced or rectified such that it extends in height to the level of the unauthorised blockwork and masonry wall, and if it is extended being in the same colour; and 2. That a qualified landscape architect or horticulturalist supervise the works to ensure that any damage to existing vegetation, including in particular the photinia hedge located along the rear boundary of the 10 Ada Street, is minimised. 3. Although the blockwork wall exceeds the height limit of 1.8m in Part C4.2.1(1) of Kogarah DCP2013, the Council took into account the neighbours' agreement, and the provision of Part C4.2.2(1) which allows a lattice to be constructed to a height of 30cm above the height control of 1.8m. Where the blockwork and masonry wall exceeds 1.8m height control, it is well behind the building lines in compliance with Part C4.2.2(2). 1. The blockwork and masonry wall at the rear of 10 Ada Street will be disguised by the colour bond extended fence, and the existing mature vegetation along its rear boundary, and, as an ancillary benefit, it will provide noise amelioration and privacy between the neighbours of the Site and 10 Ada Street. 2. The Survey Plan of J P Bates & Inwood of 31 Kitchener Street Oatley 2223, ref 15708-17, dated 18 May 2021, reveals a small encroachment of the masonry block wall fence between the rear portion of the side boundary between the Site and 25 Louisa Street Oatley. The owners of 25 Louisa Street Oatley have provided written consent in a letter dated 20 December 2021 to the identified encroachment of the masonry block wall upon their land. 3. The conditions in Annexure A which are to be met prior to the issue of the BIC include condition 5, requiring the written consent of the adjoining property owners to works occurring on or requiring access to their premises. 4. The agreement of the Council to permit the blockwork and masonry wall to remain in situ was dependent upon the circumstances of the case including the topography, and the Applicant's compliance with the conditions in Annexure A. 1. Mr John Maroun, Principal Structural Engineer with Gemstrux Consulting Engineers, has issued a Structural Compliance Certificate dated 20 December 2021 certifying that the masonry block wall side and rear fences comply with the provisions of the Building Code of Australia and other relevant Australian Standards as follows: * AS1170 Parts 1,2,3 & 4 Loading Code * AS2870 Residential Slabs and Footings Code * AS3600 Concrete Structures Code * AS2159 Piling-Design & Installation * Swimming Pools Act 1992 (NSW) * Swimming Pools Regulation 2018 1. Mr S Mikhail, registered building surveyor – unrestricted (all classes) – BDC 2277 of Building Certifiers, in a letter dated 20 December 2021 advised that block work and masonry walls and associated drainage works are constructed in accordance with the provisions of Volume 2 of the Building Code of Australia. 2. I am satisfied that the appeal should be upheld, and pursuant to ss 6.24(1) and 8.25(3) of the EPA Act, and ss 34(3) and 39(2) of the LEC Act, that the Council should be directed to issue the BIC subject to, and conditional upon, compliance with Annexure A. 3. 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)(a) and (b) of the LEC Act to dispose of the proceedings in accordance with the parties' decision. 4. The Court orders that: 1. The appeal is upheld. 2. The Respondent is directed to issue a Building Information Certificate No. 149D2021/0037 with respect to the blockwork and masonry walls located on the side and rear boundaries of the land at Lot 15, Section 50, Deposited Plan 5023, known as 23 Louisa Street, Oatley NSW 2223, subject to, and conditional upon, compliance with the conditions set out in Annexure A. ………………………… M Peatman Acting Commissioner of the Court (Annexure A) (167209, 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: 14 February 2022