O'Brien, M C v City of Sydney Council [2007] NSWLEC 185

Land and Environment Court of New South Wales

CITATION : O'Brien, M C v City of Sydney Council [2007] NSWLEC 185

APPLICANT: PARTIES : Michael Christopher O'Brien RESPONDENT: City of Sydney Council

FILE NUMBER(S) : 11041 of 2006

CORAM: Watts C at 1

KEY ISSUES: Building Certificate :- Building and fire safety

LEGISLATION CITED: Environmental Planning and Assessment Act 1979, ss 121B, 121ZK

DATES OF HEARING: 05/04/2007

EX TEMPORE JUDGMENT DATE : 5 April 2007

APPLICANT: Mr R Farago, solicitor SOLICITORS: LEGAL REPRESENTATIVES: Langes Lawyers RESPONDENT: Mr M Fozzard, solicitor SOLICITORS: City of Sydney Council, City Prosecutor's Office

JUDGMENT:

THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

Watts C

5 April 2007

11041 of 2006 - Michael Christopher O'Brien v City of Sydney Council

JUDGMENT

1 This is an appeal under s 121ZK of the Environmental Planning and Assessment Act 1979, (the EPA Act) against the decision of the City of Sydney Council (the council) to issue an order under s 121 of the EPA Act in respect of a building approval to alter and add to an existing two-storey terraced house at Lot 2, DP 205647, being No 5 Renwick Street, Alexandria. 2 I have concluded that the consent orders are satisfactory and may be issued. The land 3 The land is situated on the northern side of Renwick Street. It has a frontage of 4.5m, depth of 27.64m and an area of 113.8m2. 4 Erected on the land is a two-storey terrace dwelling, abutting a single -storey terraced dwelling at No 3 Renwick Street, Alexandria, ('the adjoining terraced building'). 5 Surrounding land use is predominantly residential. Relevant planning controls 6 Section 76A(1) of the EPA Act, provides that if an environmental planning instrument provides that specified development may not be carried out except with development consent, then a person must not carry out the development unless: · such a consent has been obtained and is in force; and · the development is carried out in accordance with the consent and the instrument. 7 Section 4 of the EPA Act defines 'environmental planning instrument' to include a local environmental plan. 8 Section 4 of the EPA Act defines 'development' as the erection of a building or the carrying out of a work. 9 Section 4 of the EPA Act defines 'building' to include part of a building and any structure or part of a structure. 10 The site is zoned 2(b) "Residential (Medium Density)" under the South Sydney Local Environmental Plan ('the LEP') and development such as that proposed to be carried out by the applicant is only permissible with the respondent's consent. 11 The South Sydney Development Control Plan 1997, ('the DCP'), applies to the land and supplements the LEP by providing more detailed guidelines and controls for all development under the LEP. 12 A building approval is taken to be a development consent issued granted under the EPA Act, by virtue of Clause 45 of the Environmental Planning and Assessment (Savings and Transitional) Regulation 1998 ('the savings provisions'). 13 The building approval is taken to be a construction certificate issued under the EPA Act, by virtue of cl 46 of the savings provision. 14 The conditions of the building approval remain in force, by virtue of cl 46(2) of the savings provisions. 15 Item 15 of the Table in s 121(B) of the EPA Act provides that in circumstances where the development consent is not being complied with, then council may give an order to the owner to comply with development consent. The council's order 16 On 6 September 2006, the respondent council served a Notice of Intention to Give an Order on the applicant, under s 121H of the EPA Act. 17 On 4 October 2006, the respondent served an Order on the applicant, pursuant to s 121B of the EPA Act. It is this order that was appealed against. The hearing 18 The appeal was filed on 1 November 2006 and is within time. 19 At the hearing the evidence on behalf of the respondent council and the applicant was received. 20 Mr Robert Carr, Area Building Compliance Officer, City of Sydney Council, prepared the statement of basic facts dated 11 December 2006. The issues 21 In issue were the terms of building and fire safety. The evidence and findings 22 The parties have reached agreement on the appropriate response to the building and fire safety issues and I am satisfied that the consent order arrived at is appropriate. 23 For the above reasons, the appeal is upheld by consent. Modified orders 24 The modified orders under s 121B of the Act are those in Exhibit 1. Consent orders 25 The consent orders are: 1. The appeal under s 121ZK of the Environmental Planning and Assessment Act 1979 is upheld.