Land and Environment Court New South Wales Medium Neutral Citation: Xiang Rong Investments Pty Ltd v Ku-ring-gai Council [2012] NSWLEC 1087 Hearing dates: 28 March 2012 Decision date: 29 March 2012 Jurisdiction: Class 1 Before: Morris C Decision: To allow the making of Orders in these matters, the parties are directed to file conditions of consent relevant to each application including a schedule of agreed work that must be undertaken prior to the building certificate being issued. On receipt of those conditions, final Orders will be made in Chambers. Catchwords: CONSENT ORDERS - Modification application, building certificate, works not consistent with original development consent. Legislation Cited: Environmental Planning and Assessment Act 1979 Texts Cited: Building Code of Australia Category: Principal judgment Parties: Xiang Rong Investments Pty Ltd (Applicant) Ku-ring-gai Council (Respondent) Representation: Counsel Mr C McEwen SC with Mr S Nash (Applicant) Mr A Pickles (Respondent) Solicitors Ms M Mallos Maddocks Lawyers (Applicant) Mr C Drury (Respondent) File Number(s): 10091 of 2012 10093 of 2012 Judgment 1These are two appeals that relate to refusal of applications by Ku-ring-gai Council to: (1)modify development consent DA0651/05 that authorised construction of a residential flat building; (Matter No 10093 of 2012) (2)issue a building certificate for certain works reflected in that modification application; (Matter No 10091 of 2012) 2A third appeal, matter No 10092 of 2012 was also heard however issues remained at the conclusion of the hearing that required further details to be provided and that matter is the subject of a consent orders hearing to be held on 12 April 2012. 3As the result of the works done by the experts in preparing reports for the hearings, the preparation of additional detailed plans by the applicant and commitment of the applicant to carry out agreed works, the parties have resolved the contentions and are seeking consent orders from the Court. Background 4Development consent DA0651/05 (the consent) authorises demolition of existing structures and the construction of a residential flat building comprising forty units, basement car parking and associated landscaping at Nos 497-507 Pacific Highway, Killara. That consent has been modified on four occasions. The works authorised by the consent have been substantially commenced and are nearing completion however, there is a range of works that have been undertaken contrary to the approved plans. It is those works that are the subject of the modification application and the application for a building certificate. It is apparent that the information lodged with those applications was inadequate and did not address the relevant provisions of the Building Code of Australia (the BCA) or the council's planning controls and was refused. Because the works are not consistent with the development consent, the council also refused the application for strata subdivision of the building. 5The applicant has undertaken further works, provided amended plans, certification and reports that address BCA issues and the planning controls. These details, combined with further changes and clarification resulting from the site view undertaken by the Court in the company of the parties and their experts, have addressed the council's contentions provided the agreed schedule of works is incorporated as conditions of consent and undertaken prior to the issue of the building certificate. The modification application 6The application was lodged under the provisions of s 96(2) of the Environmental Planning and Assessment Act 1979 (the Act) and seeks to modify the consent to reflect changes made during the construction of the building, in particular the following: * Change in location of pump room * Change to mezzanine storage areas * Modify mezzanine space to provide more accessible access for garbage collection * Modify mezzanine space to provide groundsman/security room * Amend ramping in basement to provide appropriate ceiling clearances * Increase structural support columns to recycled water tanks * Relocate disabled parking spaces * Convert non-trafficable roof to balcony space at level 4 * Provide fire shutters to ground floor, units 1, 4, 5 and 9 and common area hallways and windows facing areas designated for means of escape to satisfy BCA requirements * Re-swing main entrance doors in path of travel * Internal alterations to unit 36 * Provision of privacy screens to level 4 balconies * Provision of safety fence to driveway walls and external stairway * Change finish to mechanical ventilation shaft * Removal of glass balustrade and replacement with masonry at level 4 balconies * Provide access path to and reposition letterboxes * Enclose part of balcony area to unit 36 * Provide lightning rod protector on roof 7The Court was taken to the relevant locations during the site view to gain an understanding of the extent of works involved and the context of that work in relation to the original consent. 8There is no dispute between the parties that the works are minor and substantially the same as that approved under the consent. 9Further works are proposed that have not been undertaken to date and that involves the fencing of courtyards in the north eastern corner of the site to be allocated to ground floor units, the regrading and change of levels and provision of additional planting within the front landscaped area and the provision of front boundary and side security fencing. 10The planning experts now agree that the plans and details provided reflect the extent of works undertaken, will satisfy the council's planning controls and, subject to agreed conditions, will address the contentions in this matter. The building certificate application 11The building certificate was lodged for that work that was carried out contrary to the development consent and for which no construction certificate had been issued. The council refused the application because of inconsistency with the consent, the lack of detail and information provided in the application and non-compliance with the relevant requirements of the BCA. 12In preparation for this hearing, joint expert reports were prepared and the deficiencies of the work identified. Those experts, Mr Bennett for the applicant and Mr O'Shannassy for the council, have agreed on the extent of works required to upgrade the building to satisfy the BCA provisions. A report identifying an alternate solution in relation to the mezzanine storage areas and parts of the basement area where the floor to ceiling height is less than required under the BCA was prepared by Mr Bennett and is acceptable to the council. 13As a result of the additional reports and plans, the council is now satisfied that, on completion of those works identified, the building certificate could be issued for that work that is the subject of the application. The certificate would not apply to the whole of the building. The parties are to prepare an agreed list of works to ensure compliance. Conclusion and findings 14It is apparent from the evidence provided and the view undertaken at the commencement of the proceedings that the applicant has disregarded certain provisions of the consent issued by council. The council's refusal of the applications on the basis of the information provided was justified. With the co-operation of the council officers, experts and applicant, appropriate changes to the development have been agreed and plans prepared to reflect those changes. The applicant will now have to undertake that work to ensure compliance with the consent and BCA. 15Having had the benefit of the site inspection and the evidence heard on site and contained in the expert reports, I am satisfied that the works the subject of the s 96(2) modification application are substantially the same development as that approved under the consent and merit approval. 16The BCA experts concur that, subject to the agreed list of works being undertaken, the building works that are the subject of the building certificate application will satisfy the relevant provisions of the BCA and, in the event that the modification application is approved, would also be consistent with the consent as modified. 17Section 149F(3)(a) of the Act provides on hearing an appeal, the Court may direct the council to issue a building certificate in such terms and on such conditions as the Court thinks fit. The parties have provided the Court with the list of works that are agreed must be carried out prior to the building certificate being issued. Those works are discussed in the expert reports and on that basis, I am satisfied that the building certificate could be issued once those works are completed. 18The Strata Plan application requires further changes and determination of that application is reserved pending a further hearing of the matter on 12 April 2012. Orders 19In matter No. 10091 of 2012, the Orders of the Court are: (1)The appeal is upheld. (2)Within 5 working days of the filing with the Court and the service upon the Respondent of a certificate from the Principal Certifying Authority confirming that the matters referred to in Annexures A have been completed in accordance with the requirements of the Building Code of Australia, the Respondent is directed to issue a building certificate for the works the subject of the amended building certificate application no. 188/11 listed in Annexure B. (3)The exhibits, other than Exhibit B, are returned. (4)Liberty to apply at 3 days notice. 20In matter No. 10093 of 2012, the Orders of the Court are: (1)The appeal is upheld (2)The application made on 7 December 2011 pursuant to section 96 of the Environmental Planning and Assessment Act 1979 to modify development consent DA651/05, being a development consent for the erection of a residential flat building at 497-507 Pacific Highway, Killara, is approved subject to the modified consent conditions contained in Annexure 'A'. (3)The exhibits, other than exhibits E and F are returned. Sue Morris Commissioner of the Court 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: 11 April 2012