Land and Environment Court New South Wales Medium Neutral Citation: Yassine v Leichhardt Municipal Council [2012] NSWLEC 1283 Hearing dates: 27 September 2012 Decision date: 27 September 2012 Jurisdiction: Class 1 Before: Brown C Decision: The appeal is upheld and the council is directed to issue a building certificate on the terms set out in the orders. Catchwords: APPEAL: refusal to issue building certificate for alterations and additions to two attached dwellings - two air conditioning units located on roof - additional window constructed - inadequate landscaped area Legislation Cited: Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Category: Principal judgment Parties: Adnan Yassine (Applicant) Leichhardt Municipal Council (Respondent) Representation: Mr D Briggs, solicitor (Applicant) Ms J Walsh, solicitor (Respondent) Solicitors D G Briggs & Associates (Applicant) Pikes & Verekers Lawyers (Respondent) File Number(s): 10335 of 2012 Judgment 1COMMISSIONER: This appeal under s 149F(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) relates to the refusal by Leichhardt Municipal Council to issue a building certificate (Building certificate application number BC/2011/109) for the development at 18 and 19A Cecily Street, Lilyfield where building works were not constructed in accordance with the approved plans. 2The appeal was subject of a conciliation conference under s 34 of the Land and Environment Court Act 1979 (the Court Act). As no agreement was reached, the conciliation conference was terminated pursuant to s 34(4)(a). The parties consented to me disposing of the proceeding at a later date pursuant to s 34(4)(b)(i) and on the basis of what occurred at the conciliation conference pursuant to s 34(4)(b)(ii). Background 3The council approved Development Application No. D/2010/406 on 11 November 2010 (the 2010 consent) as alterations and additions to two attached dwellings. A construction certificate was issued by a private certifier on 3 May 2011 and a private certifier appointed as the principle certifying authority (PCA) for the development on 4 May 2011. By email correspondence dated 12 September 2011 the PCA advised: I can confirm that as advised on site a final inspection by the PCA will Not be carried out until a determination is made by council on these non-compliances. 4The history of the development is set out in some detail on the Statement of Facts and Contentions, as are the departures from the approved plans for both dwellings. Many of the departures were not seen by the council as being significant and could be addressed through the building certificate. However, other departures were seen by the council to be unacceptable and these form the basis of the council's position that a building certificate should not be issued. The council's case 5Ms Walsh, for the council, submits that if the Court is minded to direct the issue of a building certificate the following condition should apply pursuant to s 149F(3)(a) of the EPA Act. 1. The two air conditioning units on the roof of each dwelling and the one air conditioning unit on the ground of each dwelling shall be removed. 2. The window to the northern elevation of bedroom three (adjacent to 16 Cecily Street) of dwelling 18 shall be removed and infilled to match the wall on the northern elevation or alternatively shall be permanently fixed with obscure glazing. 3. The privacy screens erected on the rear east elevations of dwellings 18 Cecily Street shall remain. 4. "Works as Executed plans" shall be prepared and approved by the Land and Environment Court which indicate the following; a) The removal of the air conditioning units referred to in (1) above (conditions 4 and 12 of development consent 210/406) b) The removal of the window referred to in (2) above c) The privacy screens referred to in (3) above d) The landscape works referred at para 2.2.1.1 of the joint statement by Mr Kerry Nash and Mr Kim Burrell (condition 6 of development consent 2010/406). e) All departures from the approved development consent plans DA2006/53 and DA2010/406 with the departures highlighted. 5. Drainage calculations shall be provided associated with the change in the fall of the roof from the ridge to the rear and the adequacy of the installed guttering and drainage system. The installed system shall be checked, inspected and certified by a hydraulic engineer (conditions 20 and 46 of development consent 2010/406). 6. Certification be provided from the principal certifying authority as to inspection by the principal certifying authority at the following stages of construction a) Excavation for, and prior to, replacement of any footings b) Prior to pouring any on-site concrete building element c) Prior to covering of the framework for any floor, wall, roof or other building element d) Prior to covering waterproofing in any wet areas, and e) Prior to covering any stormwater drainage connections (condition 36 of development consent 2010/406). The applicant's case 6Mr Briggs, for the applicant, submits that a number of the matters sought by the council to be included in the building certificate are outside the power available to the Court when considering an application for a building certificate. He submits that the power available to the Court is contained within s 149D where it states that the council (and the Court on appeal) "must issue a building certificate if it appears that: (a) there is no discernable matter 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 demolished, altered, added to or rebuild, or ii) to take proceedings for an order or an injunction requiring the building to be demolished, altered, added to or rebuilt, 7Mr Briggs submits that a number of the matters raised by the council fall outside this power in s 149D but directly within the powers under Order 15 of s 121B of the EPA Act. Order 15 addresses compliance with conditions of development consent. 8In any event these matters fall within the ambit of the PCA and not the council given the appointment of a PCA. Mr Briggs notes that PCA has not undertaken final inspection given the outstanding matters that are to be addressed as part of these proceedings. 9The matters identified by Mr Briggs as being matters to be further considered by the PCA relate to: 1. the provision of a landscape plan, 2. the outstanding inspections and 3. the stormwater assessment. 10Mr Briggs submits that the only disputed matters relevant to the Court's determination of the building certificate appeal relate to: 1. the placement of air conditioning units on the roof of the dwellings, and 2. the additional window on the first floor of the northern elevation of 18 Cecily Street. The dispute 11There was agreement between the town planning experts, Mr Kerry Nash for the council and Mr Kim Burrell, for the applicant that the screen erected on the first floor rear balcony of 18 Cecily Street "will comply with the DA." 12On the question of the power available to the Court in the consideration of a building certificate appeal, I agree with Mr Briggs, that the power available under s 149D is not unconstrained and is limited to those circumstances identified in s 149D(1). I accept the matters relating to landscaping inspections and stormwater are outside the powers of s 149D(1) and are appropriately addressed through the PCA as part of the final inspection of the proposed development. Consequently the outstanding matters rate firstly to the air conditioning units and secondly, the first floor windows in the northern elevation. Air conditioners 13Condition 4 and condition 12 of the 2010 consent address air conditioners. Condition 4 provides operational requirements and requires that noise should not cause offensive noise as defined by the Protection of the Environment (Operations) Act 1979 and that an air conditioner must not be audible in nearby dwellings between 10 pm and 7 am Monday to Saturday and 10 pm to 8 am Sundays and public holidays. In my view, this condition is not relevant to whether a building certificate should be issued as it sets performance goals. Any non compliance with the noise performance goals is appropriately addressed by Order 15 in s 121B. 14Condition 12 is different as it provides locational criteria, in that it requires that any plant "must be located within the approved building envelope and not located on the roof." The air conditioning units located on the roof are in breach of this requirement. As I understand, condition 12 was imposed to minimise or restrict the visual impact of plant located on the roof or outside the building envelope. Given that both Mr Nash and Mr Burrell agree that the air conditioning units cannot be seen from Cecily Street, the unit can be retained in their current location. Window 15The highlight window in the northern first floor elevation of the main bedroom, adjacent to 16 Cecily Street, were not shown on the approved plans and were seen by Mr Nash as being unacceptable because of the potential aural impacts on the adjoining property, particularly the outdoor recreation area. His concerns were supported by the owner of the adjoining property. 16Mr Burrell on the other hand, saw no issue with this window in terms of aural privacy on the basis that it was a bedroom window. He states that there was agreement with Mr Nash that there is no issue with overlooking and that the windows provided crossventilation for the bedroom and avoided the use of air conditioning. 17With the benefit of the site inspection of the subject dwelling and the adjoining property at 16 Cecily Street, I agree with the conclusions of Mr Burrell for a number of reasons. First, there is no issue with overlooking given the sill height of the windows. Second, it is associated with the bedroom so any noise should be minimal when compared to more active areas such as a living room. Third, any noise from the bedroom will still escape from the full height doors that face west and adjoin the windows. Fourth, the windows significantly increase the amenity of the bedroom by providing northerly sun and also cross ventilation with minimal, if any adverse amenity impacts on the adjoining property. Conclusion 18Following a further inspection of the site by Mr Nash and Mr Burrell during the hearing, a further plan was produced (Exhibit 5) that contained the non controversial amendments, recent agreed changes such as the first floor privacy screen at 18 Cecily Street and corrected inconsistencies in the plans. There was agreement that depending on my findings, the Exhibit 5 plan represented a plan that could form the basis of orders from this appeal although it would need to be redrafted to include the agreed amendments (as they were marked in red on a previous plan) and the findings of the Court. Orders 19The orders of the Court are; 1. The appeal is upheld. 2. The council is directed to issue a building certificate pursuant to s 149F(3)(a) of the Environmental Planning and Assessment Act 1979 that reflects the two plans prepared by Wayne McPhee Architects, Job 531, "As Executed" plans. Drawings AE01 and AE02, both version 1, dated 2012-08-16 including amendments marked in red on Exhibit 5 in these proceedings, but excluding any reference to landscape plantings. 3. The applicant is to serve on the council, plans referred to in Order 1 within 7 days from the date of these orders that include the amendments marked in red on Exhibit 5. Leave is granted for the applicant to uplift Exhibit 5 for the purposes of satisfying Order 3. 4. The council is directed to issue the building certificate referred to in Order 1 within 21 days from the date of these orders. 5.Leave is granted to restore the matter if there is any slippage in the times set out in Orders 3 and 4. 6. The exhibits are returned with the exception of Exhibit 5. _________ G T Brown 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: 15 October 2012