Land and Environment Court New South Wales Medium Neutral Citation: Padraig Pty Ltd v Council of the City of Sydney [2017] NSWLEC 1158 Hearing dates: 14-16 September 2016 and 1- 3 March 2017 Date of orders: 29 March 2017 Decision date: 29 March 2017 Jurisdiction: Class 1 Before: Dickson, C Decision: Refer [101] Catchwords: DEVELOPMENT APPLICATION: Appeal under s97(1) works to Criterion Hotel: Heritage item – impact on significance of heritage item – compliance with LEP requirements heritage, design excellence – active street frontage – impact on significant fabric – patron safety. SECTION 121B ORDER: to remove unauthorised fabric – restore demolished fabric – outstanding. BUILDING CERTIFICATE: regularisation of unauthorised works – whether Building Certificate should be issued – ensuring safety of patrons. Legislation Cited: Environmental Planning and Assessment Act 1979 Environmental Planning and Assessment Regulation 2000 Land and Environment Court Act 1979 Local Government Act 1993 Building Code of Australia Smoke Free Environment Act 2000 Smoke Free Environment Regulation 2000 State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 Cases Cited: Chami v Lane Cove Council [2015] NSWLEC 1003 Weal v Bathurst City Council & Anor [2000] NSWCA 88 Amazonia Hotels Pty Ltd v Council of the City of Sydney [2015] NSWLEC 1224 Cachia v Manly Council (No. 2) [2009] NSWLEC 1107 Texts Cited: Building Code of Australia Category: Principal judgment Parties: Padraig Pty Ltd (Applicant) Council of the City of Sydney (Respondent) Representation: Counsel: C, Mc Ewan, SC (Applicant) P, Clay SC (Respondent) Solicitors T, Hatzis, Hatzis Cusack Lawyers (Applicant) T, Ward, City of Sydney (Respondent) File Number(s): 2016/00150254 2016/00150160 2016/00150072 Publication restriction: No Judgment 1. COMMISSIONER: there are three appeals before the Court. The appeals relate to works that have occurred, or are proposed to occur, within the Criterion Hotel at 258-260 Pitt Street Sydney (the site). 2. In summary, the appeals before the Court revolve around: * Regularisation of unauthorised works which: created a shaft from the ground floor through to the roof (removing fabric and the use of three existing hotel rooms); inserted a new ground floor ceiling; installed full height partition walls dividing the ground floor gaming room into three spaces; and installed automatic sliding doors internally. * Seeking consent for: − the insertion of new opening and louvers to the Park St elevation, the southern rear elevation, and internally to the gaming and TAB space to achieve ventilation requirements for the area to allow the development to comply with the relevant smoking regulations; − Fire rating and smoke management works to ventilation shaft, egress and structures. These works include the removal of the existing fire rated passageway and replacement with a new staircase for fire egress. − Completion of alterations to Door 1 in the Park Street frontage to facilitate accessible entry. Improvements to the presentation of the Park street façade by removal of non-original fabric from window and door surrounds. − Partial removal of non-original ceiling in gaming area adjacent the Park Street façade to reveal the existing 4200 high ceiling. Creation of an outdoor courtyard to southern boundary at the ground floor. Refurbishment of bathrooms in the gaming area at the ground floor, and in the accommodation levels one and two. 1. Council also seeks additional heritage works to be completed by the applicant as part of any consent. These include: replacement of broken tiling to the external façade; removal of rust staining to the parapet brickwork; repair to ceilings in the Saloon Bar (gaming room); and removal of internal wood panelling to expose heritage tiling. The applicant argues these works are not related to the works for which consent is sought. These works are particularised in more detail as they relate to each of the appeals in the body of the judgement. 1. The relevant appeals are as follows: 1. 2016/00150254: appeal against order number 12 B issued by the City of Sydney Council to Padraig Pty Ltd under s121B of the Environmental Planning and Assessment Act 1979 (the Act) on 31 July 2015. 2. 2016/00150160: appeal under s149(F)(1)(a) against the refusal of building certificate BC/2015/103 dated 10 February 2016, which sought to regularise the unauthorised works. 3. 2016/00150072: is an appeal against the refusal of development application DA/2015/1470. This application sought consent for works to the layout and number of hotel accommodation rooms on levels 1 and 2 of the Criterion Hotel consisting of an increase in rooms from 23 to 25, the refurbishment of bathrooms, new partitions and the creation of a new mezzanine over three rooms at level 2. 1. The appeals were heard together. The hearing commenced on site with a view of the building and the immediate locality. 2. The appeal was subject to mandatory conciliation on 6 April 2016, in accordance with the provisions of s 34 of the Land and Environment Court Act 1979 (LEC Act). Following the initial conciliation, the conference was adjourned until 5 May to allow the applicant to address the matters raised by the Council. 3. As agreement was not reached during the conciliation phase, the conciliation conference was terminated on 16 June 2016, pursuant to s 34(4) of the LEC Act. The proposal was amended following the termination of the conciliation conference and the Court granted leave on 29 July 2016 for the applicant to rely on the amended proposal (Architectural Plans by Peter Jay Design Associates dated 20 July 2016, Exhibit A). 4. Following the initial hearing on the three matters Council issued an order pursuant to s121B(6) of the Act for fire upgrade works (the fire order). This order was served on the owner of the land, rather than the lessee who is the applicant in these proceedings. The order gives, in general terms, the following reasons for its issue: ● The building is considered to be in an unsafe fire condition, lacking among other things proper provision for the detection, controlling and extinguishment of fire and adequate provision for escape in the event of a fire emergency; ● The building is a heritage type building constructed of inferior fire resistant material and lacking fundamental fire safety provisions, which represents an unacceptable level of fire safety risk to the occupants and the community at large. A staged period for compliance is provided in the fire order. The final stage is to be completed by October 2017. 1. This fire order is not the subject of these proceedings, however the scope of works required to be completed by the order is discussed and relied upon by the experts in their evidence. Council seeks to duplicate the scope of works of the order as a condition of any consent given by the Court. 2. During the adjournment, further leave was granted to allow the applicant to update the architectural plans relied on in the appeal. 3. These amended plans made a number of changes, the most significant being: 1. Insertion of new louvered openings in the southern elevation of the building; 2. Removal of new louvered ventilation openings in the Park Street façade above the awning line; and 3. The removal of the existing fire passageway and construction of new internal fire stairs between levels 1 and 2. 1. At the commencement of the appeal, in response to the joint expert reports, the applicant made further amendments to the scope of works. These changes included: amendment to the ceiling materials selected for the underside of the smoke shaft in the gaming room; and inclusion of a raked section to the gaming room ceiling and insertion of the ground floor courtyard to obviate the need for the new openings to the southern wall. Council did not oppose these changes and leave was granted by the Court for the applicant to rely on these amended plans (Exhibit J). 2. Following the final amendments to the proposal negotiated during the proceedings, the parties reached agreement as to the orders they sought from the Court and the remaining issue in contest is the appropriate conditions to form part of the consent. 3. The relevant evidence provided by the experts is that, in their view, having regard to the whole of the relevant circumstances it is lawful and appropriate for the Court grant the orders sought by the parties. 4. In these cases, the Courts role is to determine whether it is lawful and appropriate to grant the consent or approval having regard to the whole of the relevant circumstances, including the proposed conditions. The Court must ensure that relevant statutory provisions have been complied with and that any objection by any person has been properly taken into account. In this matter the relevant planning instruments contain preconditions that must be satisfied prior to consent, which are detailed below. The site: 1. The site has primary street frontage to Pitt Street and secondary frontage to Park Street. The existing hotel accommodation is accessed solely from Pitt Street. A three-storey inter–war Art Deco building is contained within the site, with a bar located within the basement and at ground level, with hotel accommodation above. 2. The site is a locally heritage listed item under the Sydney Local Environment Plan 2012 (LEP 2012), but is not located within a heritage conservation area. The adjoining Pilgrim House and Pitt Street Uniting Church are listed as local, and State heritage items respectively. Public submissions 1. In accordance with schedule one of DCP 2012 the development application was notified and advertised for a period of 21 days. No submissions were received. Issues: 1. The initial issues in dispute in the matter can be summarised as follows: * The works proposed have an adverse impact on the significance of the heritage item (cl 5.10 of LEP 2012); * The works fails to achieve design excellence as required by cl 6.21 of LEP 2012 and do not have an acceptable active street frontage; and * The premises are non-compliant with the Building Code of Australia (BCA); * If the Court was to grant consent, the conditions that may be appropriate for the development. The planning framework: 1. The Act and its Environmental Planning and Assessment Regulation 2000 (planning regulation), through s79(c)(1)(iv) apply to the site. The regulation (at cl 94)(1) applies to a development application involving the rebuilding, alteration, enlargement or extension of an existing building where: (a) the proposed building work, together with any other building work completed or authorised within the previous 3 years, represents more than half the total volume of the building, as it was before any such work was commenced, measured over its roof and external walls, or (b) the measures contained in the building are inadequate: (i) to protect persons using the building, and to facilitate their egress from the building, in the event of fire, or (ii) to restrict the spread of fire from the building to other buildings nearby. 1. In determining such an application at (2), the consent authority is to take into consideration whether it is appropriate to require the existing building to be brought into total or partial conformity with the BCA. 2. Sydney Local Environmental Plan 2012 (LEP 2012) applies to the site. Relevant to this appeal LEP 2012 has the following aims (cl 1.2): … (e) to encourage the growth and diversity of the residential population of the City of Sydney by providing for a range of appropriately located housing, including affordable housing, … (h) to enhance the amenity and quality of life of local communities, (i) to provide for a range of existing and future mixed-use centres and to promote the economic strength of those centres, (j) to achieve a high quality urban form by ensuring that new development exhibits design excellence and reflects the existing or desired future character of particular localities, (k) to conserve the environmental heritage of the City of Sydney, … 1. Pursuant to LEP 2012 the site is zoned B8 - Metropolitan Centre and the proposed use for the development application is defined as 'hotel accommodation' and is permissible with consent. The objectives of the B8 zone are as follows, and are required to be given regard by the consent authority (cl 2.3(2)): • To recognise and provide for the pre-eminent role of business, office, retail, entertainment and tourist premises in Australia's participation in the global economy. • To provide opportunities for an intensity of land uses commensurate with Sydney's global status and that serve the workforce, visitors and wider community. • To encourage the use of alternatives to private motor vehicles, such as public transport, walking or cycling. • To promote uses with active street frontages on main streets and on streets in which buildings are used primarily (at street level) for the purposes of retail premises. 1. Demolition of a building or work may be carried out only with development consent (cl 2.7). 2. Given the site contains a heritage item, cl. 5.10 Heritage conservation applies to the site. The objectives of cl 5.10 of LEP 2012, 'Heritage Conservation' at sub-cl (1), are to conserve the environmental heritage of the City of Sydney and the heritage significance of heritage conservation areas, including associated fabric, setting and views. Relevant to these proceedings demolition, moving or alteration of fabric requires consent (2). Before granting consent in respect of a heritage conservation area, the consent authority must, consider the effect of the proposed development on the heritage significance of the area, at sub-cl (4). 3. The NSW Office of Environment and Heritage maintains an inventory of heritage items, and their statements of significance (Exhibit 1). In relation to the Criterion Hotel, the listing is for the whole if the site, and includes the building interior. The listing provides the following statement of significance, and recommended management statement (relevant extracts): The Criterion Hotel constructed in the Inter-War Art Deco style is situated in a prominent location on the corner of Pitt and Park Streets in the inner city Town Hall precinct, and has aesthetic significance for the quality of its exterior detailing. The Criterion has significance as the finest of the five remaining hotel buildings constructed in this style in the CBD; the others which all remain operational are the Criterion (Sussex Street), the Great Southern, the Tudor Inn, and the Wynyard. It also has aesthetic significance as an important corner element and for its contribution to the streetscape of the immediate area. The hotel has historic significance for carrying on the name of the Criterion Theatre, which formerly occupied the site. The hotel has social significance as a fine, largely intact, and fully operational example of a small inner city corner hotel. The building has social significance as part of the network of purpose built hotels, which provided social / recreational venues and budget accommodation for the local community. High Significance: Exterior scale, form, composition and detailing, inlaid terrazzo staircase, faience terracotta tiles to external facades and ceramic tiles to external facades below awning, brick detailing to exterior, interior ceramic wall tiling to bar, and ceramic tiled bar counter, leadlight windows to bar. Medium Significance: Ceilings to the bar, bar fittings and fixtures, timber panelling, pub signage. Low Significance: Modern interior detailing. Intrusive Elements: Pre-cast concrete door and window surrounds below awning. Recommended management (extracts): Exterior: Future development should not alter or modify external decorative detailing, or original fabric of the building above awning due to the high integrity of the exterior. The brick facades, in particular the decorative brick elements, should be maintained. As the building remains recognisable as a hotel below awning, the existing door and window openings should not be enlarged or closed in, and the ceramic wall tiling should be retained. The pre-cast concrete door and window surrounds below awning at the eastern end of the building should be removed and original detailing reinstated. Interior: As the interior of the building remains largely intact, any new work should retain the existing original planning and layout. Original features such as the ceramic wall tiling and leadlight windows in the bar, and the inlaid terrazzo of the main staircase, should be retained. Consideration should be given to the retention of ceilings to the public bar. The building should be retained and conserved. The principal room layout and planning configuration as well as significant internal original features including ceilings, cornices, joinery, flooring and fireplaces should be retained and conserved. 1. Clause 6.21 of LEP 2012 requires consideration of design excellence. The objective of the clause is to deliver the highest standard of architectural, urban and landscape design. Pursuant to sub-cl (4) consent must not be granted to development unless, in the opinion of the consent authority, the proposed development exhibits design excellence. In determining design excellence, the consent authority must have regard to the following matters: ● whether a high standard of architectural design, materials and detailing appropriate to the building type and location will be achieved, ● whether the form and external appearance of the proposed development will improve the quality and amenity of the public domain, ● whether the proposed development detrimentally impacts on view corridors, ● how the proposed development addresses the following matters: − the suitability of the land for development, − the existing and proposed uses and use mix, − any heritage issues and streetscape constraints, − the location of any tower proposed, having regard to the need to achieve an acceptable relationship with other towers (existing or proposed) on the same site or on neighbouring sites in terms of separation, setbacks, amenity and urban form, − the bulk, massing and modulation of buildings, − street frontage heights, − environmental impacts, such as sustainable design, overshadowing and solar access, visual and acoustic privacy, noise, wind and reflectivity, − the achievement of the principles of ecologically sustainable development, − pedestrian, cycle, vehicular and service access and circulation requirements, including the permeability of any pedestrian network, − the impact on, and any proposed improvements to, the public domain, − the impact on any special character area, − achieving appropriate interfaces at ground level between the building and the public domain, − excellence and integration of landscape design. The consent authority must, prior to consent be satisfied that the development meets cl6.21. 1. LEP 2012 provides additional floor space, above the FSR control, for a defined set of uses through clause 6.4. The application does not rely on this clause. * The following clauses are relevant to the application, but it is agreed the development meets the required control: * The height control (cl 4.3). No part of the proceedings will increase the existing height of the building. * The floor space ratio (FSR) control for the site (cl 4.4) is 8:1. It is agreed between the parties that the development complies with this clause. * Provisions of DCP 2012 4.4.8.1 General and 4.4.8.3 Additional provisions for hotels, private hotels and motels. 1. The Sydney Development Control Plan 2012 (DCP 2012) applies to the proposal. DCP 2012 aims to guide development in order to: (a) encourage development to respond to its context and is compatible with the existing built environment and public domain; (b) recognise and reinforce the distinctive characteristics of the City of Sydney's neighbourhoods and centres; (c) build upon the detailed objectives and controls under Sydney LEP 2012; (d) protect and enhance the public domain; (e) achieve the objectives of the City's Sustainable Sydney 2030 Strategy; (f) encourage design that maintains and enhances the character and heritage significance of heritage items and heritage conservation areas; and (g) encourage ecologically sustainable development and reduce the impacts of development on the environment * Section 3, cl 3.9: Heritage within DCP 2012 has the following objectives: (a) ensure that heritage significance is considered for heritage items, development within a heritage conservation area, and development affecting archaeological sites and places of aboriginal significance (b) enhance the character and heritage significance of heritage items and heritage conservation area and ensure that infill development is designed to respond positively to the heritage character of adjoining and nearby buildings and features in the public domain. [emphasis added] * Clause 3.9.5 Heritage Items, contains the following specific provisions relevant to this proposal: (1) Development affecting a heritage item is to (a) minimise the extent of change to significant fabric, elements or spaces; (b) use traditional techniques and materials where possible unless techniques and materials can offer substantial conservation benefits; (c) enable the interpretation of each of the significant values of the item through the treatment of the item's fabric, spaces and setting; (d) provide a use compatible with its significance and which with any changes proposed, including any BCA upgrade or the introduction of services will have minimal impact on significant fabric, elements or spaces; (e) the provision of on-site interpretation, or a combination of each of these measures; (f) not reduce or obscure the heritage significance of the item (g) be reversible where necessary so new work can be removed with minimal damage, or impact to significant building fabric. (h) be consistent with an appropriate Heritage Conservation Management Plan, Conservation Management Strategy, or policy guidelines contained in the Heritage Inventory Assessment report for the item; (i) ensure that any changes to the original/significant room configuration is evident and can be interpreted; and (j) respect the pattern, style, dimensions or original windows and doors. (2) Development should enhance the heritage item by removing unsympathetic alterations and additions and reinstating missing details, building and landscape elements, where physical or documentary evidence is available (3) Alterations and additions to buildings and structure and new development of sites in the vicinity of a heritage item are to be designed to respect and complement a heritage item in terms of: (a) building envelope; (b) proportions; (c) materials, colours and finishes; and (d) building and street alignment 1. Clause 3.2.2 Addressing Street applies to the development. The objectives of this control are as follows: (a) Ensure that development contributes to the activity, safety, amenity and quality of streets and the public domain. (b) Present appropriate frontages to adjacent streets and public domain in terms of scale, finishes and architectural character. (c) Provide legible and accessible entries from the street and the public domain. d) Reinforce street edge conditions that significantly contribute to the characteristics of a heritage conservation area. (e) Reinforce Central Sydney's strong definition of streets and the public domain aligned with property boundaries. (f) Ensure that in areas outside of Central Sydney new development relates to neighbouring buildings that define the street and public domain. (g) Minimise and ameliorate the effect of blank walls (with no windows or entrances) at the ground level. 1. Clause 3.2.3 Active frontages applies to the development. The objectives of this control are as follows: (a) Ensure ground floor frontages are pedestrian oriented and of high design quality to add vitality to streets. (b) Provide fine grain tenancy frontages at ground level to street frontages. (c) Provide continuity of ground floor shops along streets and lanes within Central Sydney and other identified locations. (d) Allow for active frontages in other non-identified locations to contribute to the amenity of the streetscape. (e) Encourage frequent building entries that face and open towards the street. 1. The relevant controls under cl 3.2.3 are: (2) Generally, a minimum of 70% of the ground floor frontage is to be transparent glazing with a predominantly unobstructed view from the adjacent footpath to at least a depth of 6m within the building. By reference to Table 3.1 the applicable minimum active frontage proportion at each public domain frontage for the site is 5m or 80% 1. It is the agreed evidence of the planning experts that the development, with appropriate agreed conditions, achieves compliance with these controls. 2. Issues in relation to transport and parking are addressed under cl 3.11 of DCP 2012. The development does not currently provide any loading areas/ facilities on site, and none is proposed with the application. 3. Equitable access is a consideration under DCP 2012 (c 3.12 Accessible Design) and the Disability (Access to Premises – Buildings) Standards 2010 as the proposal intensifies the use of the hotel accommodation. Section 3.12.1(1) Accessible Design General requires: All development must comply with the following: all Australian Standards relevant to accessibility; the Building Code of Australia access requirements; and Disability Discrimination Act 1992. Complex developments where compliance is proposed through alternative solutions must be accompanied by an Access report prepared by a suitably qualified access professional. 1. In relation to heritage buildings, parts (2) and (3) require the provision of equitable access is to have minimal impact on the significant fabric and setting of heritage items and to be reversible. Where heritage impact is used as a reason for not providing equitable access in accordance with this Section, evidence is to be provided that no suitable alternatives for access are available. 2. In relation to equitable access, it is the agreed evidence of the relevant experts that the development, when completed, will achieve compliance with the relevant legislation and standards. 3. Waste management controls are detailed at cl3.14. No issues are pressed by the council in relation to the proposals ability to meet these objectives. Expert evidence 1. The following experts participated in the joint conferencing process and provided evidence to the Court: 1. Ms Symons (for the respondent) and Ms Hill (for the applicant) provided joint reports on planning issues (Exhibit 8 and 17). 2. Ms Desgrand (for the respondent) and Ms Hill (for the applicant) provided joint reports on heritage issues (Exhibit 7 and 16). 3. Mr Storer and Ms Clark (for the applicant) and Mr DeLooze (for the respondent) provided a joint report on Building Code of Australia (BCA) compliance issues (Exhibit 10 and 15). 4. Mr Howse (for the applicant) and Mr O'Keefe (for the respondent) provided a joint report on Smoke Free Environment Regulation compliance issues (Exhibit 11 and 18). 5. Mr Boyce (for the applicant) and Mr DeLooze (for the respondent) provided a joint report on access compliance issues (Exhibit 9 and 14). Building Certificate appeal: 1. The building certificate application BC/2015/103 sought approval for the 'ventilation shaft and associated works'. 2. The Act establishes a regime that permits the regularisation of or protection from enforcement for works undertaken where development approval is required, but has not been sought. 3. Section 149D of the Act identifies the considerations relevant to the determination of an application for a building certificate: 149D Obligations of council to issue building certificate (1) The council must issue a building certificate 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 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) If the council refuses to issue a building certificate, it must inform the applicant, by notice, of its decision and of the reasons for it. (3) The reasons must be sufficiently detailed to inform the applicant of the work that needs to be done to enable the council to issue a building certificate. (4) The council must not refuse to issue or delay the issue of a building certificate by virtue of the existence of a matter that would not entitle the council to make any order or take any proceedings of the kind referred to in subsection (1) (a). (5) Nothing in this section prevents the council from informing the applicant of the work that would need to be done before the council could issue a building certificate or from deferring its determination of the application until the applicant has had an opportunity to do that work. 1. The Council refused the application for a building certificate on 10 February 2016. Pursuant to s149F of the Act, the applicant has lodged an appeal against the Councils determination. 2. The powers of the Court on appeal are those conferred by s 149F(3) of the Act: (3) On hearing the appeal, the Court may do any one or more of the following: (a) it may direct the council to issue a building certificate in such terms and on such conditions as the Court thinks fit, (b) it may revoke, alter or confirm a notice under section 149C, (c) it may make any other order that it considers appropriate. 1. The provisions relating to the issuing of a building certificate are contained in Part 8 of the Act. Section 149D(1) provides that the Council must issue a building certificate if it appears that the matters specified in s 149D(1)(a) and (b) are satisfied. The effect of a building certificate is to prevent the Council from making an order, under the Act or the Local Government Act 1993, "requiring the building to be repaired, demolished, altered, added to or rebuilt" in relation to matters existing or occurring before the date of issue of the certificate (s 149E(1)(a)), or for a period of seven years from the date of issue of the building certificate". 2. Relevantly in Chami v Lane Cove Council [2015] NSWLEC 1003., Moore, SC at [62] to [67] argued that a Court on appeal that relates to a building certificate seeking to regularise unlawful works is entitled to consider all of the merits considerations which would arise if a development application had been lodged for the structure. 3. The parties have requested the Court make agreed orders. The orders requested by the parties, have the effect of staying any compliance action in relation the unauthorised works until 1 October 2017. The stay is reliant on the completion of the work of the fire order, and the works that are necessary to ensure the premises are compliant with the Smoke Free legislation by that time. The issue for the Court is to determine if the agreement of the experts is sustained and if the agreed orders are appropriate. Appeal against the issue of order number 121 B 1. The council issued and Order under s121B of the Act on 31 July 2016. The Order requires: 1. Under the supervision of a certified practicing heritage consultant and a certified practicing structural engineer, restore the premises to the condition in which it was before the building was unlawfully erected or before work was unlawfully carried out by:- 1. Demolishing the building works detailed within column 3 of table 1 of this order; 2. Restoring demolished items detailed within column 2 of table 1 of this order. 1. Upon completion of the restoration works, written certification is to be submitted to the Council from the :- 1. Supervising heritage consultant confirming the restoration works are in accordance with the heritage preservation recommendations or principles detailed by the NSW Government Office of Environmental Heritage within the State Heritage Inventory data sheet 2424127; 2. Supervising structural engineer confirming the restoration complies with Part B7C of the National Construction Code 2015 (Volume 1 Class 2-9 Buildings) 1. A period of 90 days was given for compliance with the Order. 2. Section 121B of the Act provides for the giving of Orders and is in the following form: (1) An order may be given to a person by: (aa) the Minister or the Secretary (but only in connection with a project to which Part 3A applies, in connection with State significant infrastructure or in connection with development for which the Minister or Secretary is or has been the consent authority), or (a) a council, or (b) any other person who exercises functions as a consent authority, except in relation to complying development for which a complying development certificate has been issued, to do or to refrain from doing a thing specified in the following Table if the circumstances specified opposite it in Column 2 of the Table exist and the person comes within the description opposite it in Column 3 of the Table. 1. In reference to the table, Order 12B contains a number of tests to be met. Firstly, in this case, the Order must relate to a "work that was unlawfully carried out" secondly, it must be shown that it required consent, thirdly it must specify what is required to "restore the premises to the condition they were before". Finally, it must be served on the appropriate entity. There is no contention between the parties as to whether the order was lawfully issued. 2. The applicant is appealing the order pursuant to the provisions of s121ZK (1) of the Act. Pursuant to s121K(4) On hearing an appeal, the Court may: (a) revoke the order, or (b) modify the order, or (c) substitute for the order any other order that the person who gave the order could have made, or (d) find that the order is sufficiently complied with, or (e) make such order with respect to compliance with the order as the Court thinks fit, or (f) make any other order with respect to the order as the Court thinks fit. 1. The orders requested by the parties have the effect of staying the compliane order subject to a timetable that requires: completion of the fire order works; the works that are necessary to ensure the premises are compliant with the Smoke Free legislation; and the remaining works the subject of the development proposal. If these works are completed the parties seek a further order of the court revoking the original order of 31 July 2015. The issue for the Court is to determine if the agreement of the experts is sustained and if the agreed orders are appropriate. Appeal refusal of development consent 1. The final matter before the Court is an appeal under s97(1) of the Act against the refusal of DA/2015/1470 by the Council of the City of Sydney. The application sought approval for the following works: Proposed internal works to Level 1 and 2 hotel accommodation rooms of the 'Criterion Hotel' consisting of an increase in rooms from 23 to 25, the refurbishment of bathrooms, new partitions and the creation of a mezzanine over three rooms at level 2. 1. The agreed orders requested by the parties have the effect of granting the applicant leave to rely on the final amended plans, and providing consent to the works proposed by the application. The issue for the Court is to determine if the agreement of the experts is sustained and if the agreed orders are appropriate. Impact of works on the significance of the heritage item 1. The heritage experts agreed (Exhibit 16) that the key heritage issues raised in the contentions could be stated as: Issue 1: Whether the proposed use of the first floor kitchen, servery and pantry along with the two second-floor accommodation rooms as a chimneystack will have adverse impacts on the significance of the Criterion Hotel Issue 2: Whether the proposed works to the first and second floors (including fire curtains and bathroom upgrades) will have adverse impacts on the significance of the Criterion Hotel. Issue 3: Whether the proposed egress stair and removal of the fire escape passage to the southern light well will have adverse impacts on the significance of the Criterion Hotel Issue 4: whether the proposed works to the ground floor and the five new openings in the southern façade will have adverse impacts on the significance of the Criterion Hotel Issue 5: whether the proposed works to the ground floor northern façade, including works to the highlight windows and door 1 to door 5 will have adverse impacts on the significance of the Criterion Hotel. This report was finalised prior to the tendering of the final amended plans as Exhibit K. The oral evidence of the experts addressed the final amended plans. 1. In relation to the impact of the unauthorised works, the original position of the experts was that the heritage impact was as follows: Ms Desgrand: - The unauthorised works have resulted in demolition of significant original fabric within the ground floor saloon bar (now the gaming room). - Of specific concern is the demolition of portions of the original coffered set plaster ceiling. - The spacious open quality of the saloon bar space, that is evident from previous archival recording, is diminished by the construction of the unauthorised lowered ceiling and the subdivision of the space into three areas by unauthorised full height partitions. - The creation of the ventilation shaft has had the impact of removing the use of three accommodation rooms as well as the original floors and ceilings. Ms Hill: - Argues that the unauthorised works are reversible, and that any impact on the significance of the Criterion Hotel is to fabric of low significance. - The impacts are offset by works proposed by the applicant to enhance the heritage item; this includes the removal of detracting elements in the façade and reinstatement of the visibility of the highlight windows above the existing awning. 1. The oral evidence of Ms Desgrand was that based on changes in the final amended plans, and the imposition of conditions requiring additional conservation works to be completed she is satisfied that cl 5.10(4) is met. Ms Hill concurred with this view. The relevant final changes are: - Amendment to the ceiling materials selected for the underside of the smoke shaft in the gaming room. The new material will be less obtrusive and due to the tighter gauge of the mesh will reduce visibility of the interior of the shaft itself. - Insertion of a ground floor courtyard, and relocation of the existing male toilets, this has obviated the need for the new openings to the external southern wall. This has the benefit of resulting in a reduction of removal of original fabric. - revealing of the original tiling in the gaming room and the southern wall of the exiting TAB space. The relevant agreed conditions are: (a) EXTERNAL CONSERVATION WORKS are to include but are not limited to the conservation of all brick, wall tiling of the facades, external window framing and chrome work, terrazzo thresholds and treads, pressed metal and roof plumbing and removal of obsolete services and painting of painted surfaces. Some particular works that are to be included are: (i) Replacement of 24 broken tiles to the west of D5, with tiles to match the original; (ii) Removal of rust stains from the parapet brickwork and associated removal of the steel wire fencing around the parapet causing these stains; (iii) General painting works of window joinery of the south façade and of the new highlight window joinery above D1 and D5 above the awning. The colour is to match the existing window joinery. (iv) Doors D1-D5 General approach: All works shall be as follows: a. New joinery, where scheduled below, is to be constructed of Queensland maple of matching profiles and sections sizes of the original; all lead lights to the fanlights and fixed lights should match original patterns and colours; b. All chrome work should match the original pattern; c. All risers to be tiled to match the original, and all thresholds to be terrazzo to match the original colour and pattern; d. All lead lights are to be conserved. Where joinery is scheduled to be removed, salvage all lead lights for reuse in the new assemblies. e. All highlight window sashes and central fixed lights are to be fitted with lead lights to match the original pattern. All other glazing is to be clear, and to remain transparent. f. The proposed hardware to achieve an appropriate match with the chrome hardware of the original 'Queensland Maple' doors which are to be conserved. g. Elevations and sections of all proposed door, fixed light and transom fanlight joinery at a minimum scale of 1:20, supported by section, plan details at 1:50 shall be provided. The cross section profiles and sizes of all members are to match the relevant extant original assemblies and are to be drawn at 1:50. The drawings, large-scale details and specifications are to incorporate the following: (v) D1: The 1940 joinery at D1 should be relocated to D5 to avoid altering 1940 fabric. Install a new assembly comprising two doors, central fixed light and three transom fanlights. (vi) D2: Existing 1940 window to be retained. A new window below the transom is to be installed to match the 1940 Park Street elevation drawing. Remove or scabble pebblecrete and apply tiles to match the original pattern, size and colours, ensuring a flush finish with the surrounding tiles. (vii) D3: Remove existing assembly, and install new joinery to interpret the show window. The assembly is to include a transom, with three leadlight transom sashes above and three clear glazed casement sashes below to match the photographic image. Remove or scabble pebblecrete and apply tiles to match the original pattern, size and colours, ensuring a flush finish with the surrounding tiles. (viii) D4: Install a new assembly comprising two doors, central fixed light and three transom fanlights. The central fixed light is to accommodate a panel for the sprinkler booster, with chrome detailing. Remove or scabble pebblecrete and apply tiles to match the original pattern, size and colours, ensuring a flush finish with the surrounding tiles. Thresholds and steps as per above. (ix) D5: The 1940 joinery at D1 should be relocated to D5. (b) INTERNAL CONSERVATION WORKS are to include the retention and conservation of all ceiling set plaster, original internal walls, the removal of later ceiling systems, door and window reveals and architraves, timber skirtings, glazing and hardware. Some particular works that are to be included are: (i) Conservation works to the ground floor Saloon Bar ceilings should include the reinstatement of cornices to all coffers to the original design evident in image 1-1-14 of the Archival recording undertaken in 2000 where these are missing, repairs to penetrations in the concrete slab, removal of later fixings, and obsolete building services, and completion of set plaster. The ceiling and cornices is to be painted a buff colour as evident in image 1-1-14; (ii) Repairs to joinery and lead lights of the original door assembly to the Data Room in the southern wall of the ground floor opposite the TAB; (iii) Completion of original tiling to the southern and northern wall of the Saloon Bar and to the southern wall of the TAB space, in tiles matching the original (where these are missing); (iv) Conservation of terrazzo treads and landing to the main stair, from the point of connection with the new egress stair extending down to the Ground Floor, where these are chipped or broken; (v) Painting of the metal balustrade of the main stair in a sympathetic colour and replacement of later handrails with new handrails to match the original; (c) The works in (a) and (b) are to be inspected by, and competed to the satisfaction of Council's Manager of Urban Design and Heritage prior to the issue of any Occupation Certificate. 1. In relation to the works proposed by the development application the original position of the experts was that the heritage impact was as follows: Works agreed to be beneficial: − the proposed works to the bathrooms, and the insertion of waterproofing; − the removal of the fire passage from the light well − the proposed re-exposure of the original ceiling along the northern frontage provides an enhancement of the interiors, exposing the original highlight openings and allowing light through the reinstated lead lights. − the installation of new wall tiling to match the original (internally to saloon bar) − removal of detracting elements below the awning on the Park Street façade. Evidence of Ms Desgrand (in summary): − if the shaft is approved as a 'smoke heat vent', the shaft is unlikely to be reversed; − the works to bring the building into conformity with the BCA includes the installation of fire curtains to all original window joinery of the southern façade; − the egress stair proposed is visually intrusive, and as it discharges to the existing terrazzo stairwell may result in impacts to this heritage fabric due to the need to provide slip resistance and contrasting nose strips; − the proposed openings to the southern façade have a highly adverse heritage impact as they will remove original fabric, are an irreversible structural alteration and require the insertion of obtrusive structural trusses; − in the saloon space the proposed mesh for the underside of the shaft is visually intrusive as it will allow visibility of the shaft and the light emanating from the new openings to the southern façade. − the new openings to the southern façade will result in the demolition of early significant cornices and evidence of early colour schemes. 1. As detailed above the original evidence of Ms Desgrand raised concerns with the proposed works, their detailing and impact. However, during the proceedings the oral evidence of Ms Desgrand was that based on the changes in the final amended plans, and the imposition of conditions requiring additional conservation works to be completed (outlined at [61]) she is satisfied that cl 5.10(4) is met. Ms Hill concurred with this view. 2. Prior to consent, the Court is required by cl 5.10(4) to consider the effect of the proposed development on the heritage significance of the item, in this case the Criterion Hotel. Based on the evidence of the experts I am satisfied that the effect of the works proposed in the final amended plans is acceptable and that the precondition is met. Planning 1. Council's primary planning contention relates to the cl. 6.21 Design Excellence in LEP 2012 that is a precondition to consent and the compliance with Section 3.2.2 of DCP 2012 that requires ground floor tenancies to have active street frontages. 2. In response to the amended architectural plans, the planning experts provided an updated report to the Court (Exhibit 17). The conclusion of the report is that the experts agree that the contentions can be satisfied by the imposition of appropriate conditions. These conditions are: Condition 5 (a) All transparent/ opaque film treatments to existing windows and doors are to be removed. No transparent/ opaque film treatments are to be applied to the proposed new doors, windows or fixed light assemblies along Park Street. Condition 7 No film, advertising, or covering or impediment of any kind is to be applied to the inner side of the glazing of openings/ windows D1, D2, D3, D4 and D5. Any screening, furniture or other devices located within 1 metre inside windows D2, and D3 shall not exceed 1800mm in height. The above conditions are agreed and have been included in proposed conditions before the Court. 1. Based on the evidence of the experts I am satisfied that the works proposed in the final amended plans, and the above conditions, are acceptable and that the precondition is met. Building Code of Australia Compliance 1. In response to the amended architectural plans, the BCA experts provided an updated report to the Court (Exhibit 15). The experts agree that the upgrade requirements contained within Councils Fire Safety Order, dated 14 October 2016, when completed, will address the existing fire safety deficiencies with the existing building. 2. In dispute between the parties is the Councils submission that it is necessary, and appropriate to incorporate the requirements of the fire order, and its scope of works in the conditions of consent. 3. The evidence of the experts that the development is consistent with the requirements of the BCA, subject to the completion of the works in the fire order (refer par[8]) and the imposition of the following agreed conditions: WORKS REQUIRED TO ACHIEVE COMPLIANCE WITH BCA The following details shall be submitted to and approved by Council's Area Planning Manager prior to the issue of any Construction Certificate: (a) Where original lightweight walls separating the residential sole occupancy units (SOU) on levels 1 and 2 and the walls separating the SOU's from the public corridor are to be upgraded to achieve a higher FRL, the junction between the ceiling and wall is to be fitted with a cornice to match the original. (b) Where original doorways, including the highlight windows above the doorway are required to be upgraded to comply with C3.11 of the BCA and AS1905.1- 2015, the original reveal architraves are to be retained and reused. (c) The details of the slip resistant and contrasting nosing's strip to the original stair required in accordance with D2.13(a)(v) of the BCA and Clause 11.1(f) of AS1428.1-2009 respectively. In addition, details of any required upgrades to the stair balustrade. 1. Based on the evidence of the experts I am satisfied that the works proposed in the final amended plans, and the above conditions, are consistent with the requirements of the BCA subject to the completion of the works required by the fire order. The certainty of these works is discussed in the following. Conditions 1. In contention between the parties is the applicability of the BCA upgrade works identified by the Council's fire order (refer par [8]) to the works for which consent is sought under the development application. This condition is proposed by Council as condition 39, and details works proposed to achieve satisfaction of the requirements of the following sections of the BCA: 1. Fire resistance – Section C; 2. Access and Egress – Section D; 3. Services and Equipment – Part E1; and 4. Smoke Hazard Management- Part E2; 1. In submissions Mr McEwan contented that the replication of the requirements of the fire order into the consent for the works was opposed for the following key reasons: 1. The order has a separate and clear procedural path that provides Council with powers and the owner of the premises with an obligation to complete the works; 2. The applicant in these proceedings is not the owner who is responsible for the completion of the works, and is the lessee of the building; 3. The appropriate path for Council is to enforce the completion of the order, not to apply conditions to the proposed consent. 1. In contrast, it was the submission of Mr Clay that there is a relevant nexus between the development proposed and an increase in risk to the parties to the consent and the public by the approval of the works. It is the position of the Council that the consent applies to the use of the gaming room, and the premises, and that without the works required by condition 39 (which replicates the fire order) these areas are unsafe in the event of a fire. 2. Mr Clay argues that the planning regulation, at clause 94 provide the Court the power to impose the condition. The relevant provision is as follows: 94 Consent authority may require buildings to be upgraded (cf clause 66B of EP&A Regulation 1994) (1) This clause applies to a development application for development involving the rebuilding, alteration, enlargement or extension of an existing building where: (a) the proposed building work, together with any other building work completed or authorised within the previous 3 years, represents more than half the total volume of the building, as it was before any such work was commenced, measured over its roof and external walls, or (b) the measures contained in the building are inadequate: (i) to protect persons using the building, and to facilitate their egress from the building, in the event of fire, or (ii) to restrict the spread of fire from the building to other buildings nearby. (c) (Repealed) (2) In determining a development application to which this clause applies, a consent authority is to take into consideration whether it would be appropriate to require the existing building to be brought into total or partial conformity with the Building Code of Australia. (2A), (2B) (Repealed) (3) The matters prescribed by this clause are prescribed for the purposes of section 79C (1) (a) (iv) of the Act. 1. Further Mr Clay argues that it is not appropriate for the Court to rely on a third party, in this case the owner of the premises, to provide certainty to the safety of users of the building for the purposes for which consent is sought. It is his submission that the need for the upgrade is generated by the application. Findings 1. The parties put no argument to the Court that the clause 94 of the planning regulation does not apply in the circumstances. 2. The Council relies on the evidence of the experts to establish that the upgrade is required. Relevantly the original joint expert report contains the following statements in relation to the applicability of cl 94 of the planning regulation: …. … 1. As detailed in par [65] the final report of the relevant experts concludes that upgrade requirements contained within Councils Fire Safety Order, dated 14 October 2016, when completed, will address the existing fire safety deficiencies with the existing building. Importantly at 3.11 and 3.12 above they also agree that clause 94 applies to the assessment of the development application and that overall the existing measures contained within the building are inadequate to protect persons using the building and the facilitate their egress from the building in event of a fire. 2. I accept the agreed evidence of the experts that the measures contained in the building are inadequate and as such cl94 (b) is met. 3. I do not accept that the Court in determining the development application can rely on the fire order as a means of curing these inadequacies. It is clear that the experts to be satisfied that the development application can be provided consent rely on the completion of the works, detailed in [75]. The terms of s79C of the Act are mandatory: the Court is obliged to take into consideration relevant matters from the catalogue of matters in s79(c), and to weigh them up in determining the development application. Two of these factors are s79C (1)(a)(iv) the regulations and (e) the public interest. It is clear that following approval of the application there will remain a safety impact, without some means of resolving it within the consent itself. Whilst the order served by the Council has a separate regulatory path Weal v Bathurst City Council & Anor [2000] NSWCA 88 identifies that it is not an answer to s79C to rely on an adjunct process and that the assessment and approval process needs to be self-contained. 4. In conclusion, I do not accept that consideration of whether the required buildings upgrade is completed can be appropriately left to the completion of an independent compliance process; separate to the grant of development consent. I agree with the experts that achieving compliance is essential to this proposal and leaving this aspect of the development to be dealt with separately is akin to not addressing a fundamental aspect of the application (Weal v Bathurst City Council & Anor). 5. As such, I concur with the Council that the proposed condition 39, addressing the BCA upgrades, is appropriate and should be included in the consent for the works. I am satisfied that the imposition of the condition is consistent with s80A of the Act as it relates to any matter referred to in section 79C (1) of relevance to the development the subject of the consent. 6. I acknowledge that the operation of the fire order [par 8] and the development consent may operate in parallel. As such, the works identified in the condition 39, at the time of determination of a Construction Certificate may be complete. 7. The remaining conditions in contention between the parties are as follows: 1. Proposed Condition 8: Courtyard/ outside area adjacent the gaming room, which states: No furniture is to be located: (a) within the courtyard adjacent to the gaming room; or (b) along the threshold to the outdoor courtyard The applicant objects to (a) of the condition. 1. Proposed condition 28: Compliance with smoke free legislation, which states: (a) prior to the issue of any Construction Certificate the Applicant shall provide a certification to the satisfaction of Council from an appropriately qualified person to the effect that the premises as constructed and proposed to be constructed will comply with the Smoke Free Environment Act and Regulation; (b) after completion of construction and prior to the issue of any Occupation Certificate the Applicant shall provide a certification to the satisfaction of Council from an appropriately qualified person to the effect that the premises as constructed will comply with the Smoke Free Environment Act and Regulation; The applicant objects to the sections of the condition in bold. 1. In relation to condition eight, Mr McEwan submits that effect of this condition is to forego the potential of the courtyard space to reduce the intensity of poker/gaming machines within the existing gaming room. Mr McEwan notes that the evidence of the Councils heritage expert is that they seek to reinstate the historically spacious feeling of the saloon space. It is his view that the ability to relocate some of the machines into the courtyard space, and the other works proposed, will assist in the reinstatement of this sense of space. Mr McEwan confirms that the hotel is licensed for a fixed number of machines. Council in the alternative argues that the maintenance of the courtyard as an open room provides a spatial and heritage benefit to the gaming space that will be derogated by the inclusion of gaming machines to a height of 1800mm. 2. In considering the evidence and submissions, I prefer the view of the applicant that allowing poker/gaming machines into the courtyard space will have a beneficial impact to the interior space of the gaming room. Key in my consideration is the fixed number of machines that are able to occupy the premises as well as the effect of (b) of the condition (which is agreed) which will leave unimpeded the opening to the space. I am satisfied that the 4200mm ceiling in the courtyard space, and the large openings will achieve the open feeling sought by the Council. 3. In relation to the second condition in dispute, Mr McEwan submits that the applicant does not object to the submission of a certificate from a suitably qualified expert to Council demonstrating compliance, but seeks to have the need 'to satisfy council' removed from the condition. He argues that Council is not the regulator of the Smoke Free Environment Act or the appropriate body for any enforcement, which is the responsibility of NSW Health. 4. In Amazonia Hotels Pty Ltd v Council of the City of Sydney [2015] NSWLEC 1224, Dixon, C at [24] concluded that the NSW Ministry of Health are the appropriate regulators of the Smoke Free Environment Act. Further she held that it is appropriate for the Court to accept that any application for a new smoking area made under the legislation will be dealt with lawfully and this will ensure the public interest is appropriately safeguarded. 5. Following consideration of the submissions of the parties, I am satisfied that it is appropriate to amend the condition to remove the text stating: to the satisfaction of Council from both subsections of condition 28. Achievement of compliance with the Smoke Free Environment regulation 1. The Smoke Free Environment Act 2000 and the Smoke Free Environment Regulation 2000 (the Regulation) apply to the development as it is proposed to continue to allow smoking in the gaming room. In its contentions Council argues that proposal does not comply with the relevant provisions and that the level of tobacco smoke in the ground floor 'gaming room' will be unhealthy (Exhibit 12). 2. Relevantly Clause 6(1) of the Regulation states: The provisions of this clause prescribe guidelines in relation to determining what is an enclosed public space and when a covered outside area is considered to be substantially enclosed for the purposes of the Act. 1. Relevantly Clause 6(2) of the Regulation determines whether a public space is substantially enclosed as follows: A public place is considered to be substantially enclosed if the total area of the ceiling and wall surfaces (the total actual enclosed area) of the public place is more than 75 per cent of its total notional ceiling and wall area. The conclusion of the final joint expert report (Exhibit 18) is that subject to specific design revisions described in the report at item 3.3 the proposed smoking area will comply with the Smoke Free Environment Act and the Regulation. These specific design revisions have been incorporated in the final amended plans (Exhibit K). 1. I accept the evidence of the experts that the development is consistent with the requirements of the Smoke Free Environment Act and the Regulation and note that the proposed conditions include the requirement for staged certification against the requirements of the instruments at construction and occupation certificate stages. Costs 1. Given the changes to the proposal that occurred during the proceedings the respondent has asked the Court to make an order for the payment by the applicant of those costs of the consent authority that are thrown away as a result of amending the development application of is applicable (s97B of the Act). This was agreed to by the applicant. 2. Section 97B of the EPA Act relevantly provides: 97B Costs payable if amended development application filed (1) This section applies to proceedings if the Court, on an appeal by an applicant under section 97 allows the applicant to file an amended development application (other than to make a minor amendment). (2) In any proceedings to which this section applies, the Court must make an order for the payment by the applicant of those costs of the consent authority that are thrown away as a result of amending the development application. 1. The council experts have undertaken significant assessment of these plans before the Court proceedings commenced. During the proceedings, further amendments were made, making a proportion of this assessment and evidence redundant. The applicant argues that the amendments result in the cost of this assessment being "thrown away". 2. In Cachia v Manly Council (No. 2) [2009] NSWLEC 1107 the Senior Commissioner pointed out that for Section 97B to be of effect, two steps are necessary: Firstly, that the Court allows the applicant to file an amended development application. Secondly, that the amended development application not constitute 'a minor amendment'. The step one of the above was met on the second day of the proceedings. In relation to step two, it was agreed between Counsel that the amendment to the proposal, detailed at [12], was not minor. In addition the material amendments required additional evidence on the heritage impacts of the proposal, and its compliance with the Smoke Free regulation. As a result of the preceding I am satisfied that the amendments made to the proposal are not minor for the purposes of s 97B of the Act. Conclusion 1. I accept the evidence to the experts that the development is consistent with the relevant planning instruments, development control plan and other documents listed in s79C(1)(a), that the likely impacts of the development are acceptable and that the site is suitable for the development proposed. 2. As detailed in [61] I am satisfied the proposal, in conjunction with the proposed conditions, meets the requirements of cl 5.10 of LEP 2012. I am also I am satisfied that cl 6.12 is met [refer par 64] and that no substantive issue warrants refusal of the application. 3. In considering the amended plans and documents that support the final proposal, the agreed conditions of consent, and the evidence of the experts I am satisfied that it is lawful and appropriate to grant to consent, having regard to the whole of the circumstances. 4. The parties have provided to the Court agreed orders that they seek to be made in relation to each of the matters. I am satisfied that in relation to the Building Certificate (2016/00150160) that the evidence before the Court establishes the premises are currently not compliant with the relevant instruments and codes and therefore the requirements of s149(1)(a) mandating the issue of a building certificate are not met. I am satisfied that the orders sought are appropriate in the circumstances of the case. 5. In relation to the Order (2016/00150254), the agreed orders seek to stay the existing orders to allow the completion of the development consent, and the issue of an Occupation Certificate until 30 June 2018. I accept the submissions of the parties that this assists in providing the Council, and the Court, certainty of the completion of the works prior to the repeal of the order. Orders 1. The Orders of the Court are: Appeal Number 2016/00150160 (building certificate): The Court by consent: 1. Orders that the appeal be dismissed. 2. Notes that the Council shall not in respect of the unauthorised works make an order under the Environmental Planning and Assessment Act 1979 or the Local Government Act 1993 ( or take proceedings for the making of an order or injunction ) requiring the unauthorised works to be demolished, altered, added to or rebuilt, provided that: 1. the work the subject of the Fire Safety Order issued by the Council to Drivas Nominees Pty Ltd pursuant to s121B EPA Act dated 14 October 2016 (the Fire Order) and condition 39 of the development consent granted by the court on 29 March 2017 in proceedings 2016/150072 (the Development Consent) is carried out by 1 October 2017; and 2. such of the works the subject of the Development Consent as are necessary to ensure that the premises are compliant with the Smoke Free Environment Act and Regulation is carried out by 1 October 2017 (or such later date as may be permitted pursuant to any modification of the Fire Order or the consent of the Council); and 3. the remainder of the works the subject of the Development Consent are carried out and an Occupation Certificate is issued prior to 30 June 2018; For the purposes of these orders: Unauthorised works means the unauthorised works the subject of the application for building certificate dated 15 October 2015 the subject of these proceedings. 1. The exhibits are returned except for the Exhibit 2, the Class 1 application filed 29 February 2016, the draft conditions filed March 22 2017 and Architectural plans prepared by Peter Jay design architects, Revision 11, dated 2 March 2017 project number AU-03. Appeal Number 2016/00150254 (order): By consent the Court: (1) stays the operation of the order made under s121B Environmental Planning and Assessment Act 1979 (EPA Act) dated 31 July 2015 until further order; (2) notes the agreement of the parties that provided: 1. the work the subject of the Fire Safety Order issued by the Council to Drivas Nominees Pty Ltd pursuant to s121B EPA Act dated 14 October 2016(the Fire Order) and condition 39 of the development consent granted by the Court on 29 March 2017 in proceedings 2016/150072 (the Development Consent) is carried out by 1 October 2017; and 2. such of the works the subject of the Development Consent as are necessary to ensure that the premises are compliant with the Smoke Free Environment Act and Regulation is carried out by 1 October 2017 (or such later date as may be permitted pursuant to any modification of the Fire Order or the consent of the Council); and 3. the remainder of the works the subject of the Development Consent are carried out and an Occupation Certificate is issued prior to 30 June 2018; (3) Grant liberty to the parties to apply on 3 days' notice Following the filing of documentation that demonstrate, to the Courts satisfaction, that the above requirements are met, final orders will be made in chambers in accordance with the draft consent orders attached hereto and marked A. Appeal Number 2016/00150072 (development application): The Court : (1) grants leave to the Applicant to amend its development application to rely upon the plans set out in condition 1 of the conditions attached and marked A; (2) orders the Applicant to pay the Respondent's costs thrown away pursuant to s97B Environmental Planning and Assessment Act 1979 as agreed or assessed. (3) orders that the appeal be upheld; (4) grants development consent for development application Council reference D/2015/1470 dated 13 October 2015 as amended for alterations to the Criterion Hotel 260 Pitt Street, Sydney subject to the conditions of consent attached and marked A (5) The exhibits are returned except for the Exhibit 2, the Class 1 application filed 29 February 2016, the draft conditions filed March 22 2017 and Architectural plans prepared by Peter Jay design architects, Revision 11, dated 2 March 2017 project number AU-03. ……………. D M Dickson Commissioner of the Court Matter Number 2016/150254: 150254.16 Draft Consent Orders A (82.2 KB, pdf) Matter Number 2016/150072: Addendum A: 150072.16 Conditions of Consent A (135 KB, pdf) Addendum B: 150072.16 Approved Plans (16.2 MB, 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: 29 March 2017