Gcorp Property Pty Ltd v The Council of the City of Sydney [2017] NSWLEC 1222

Land and Environment Court New South Wales

Medium Neutral Citation: Gcorp Property Pty Ltd v The Council of the City of Sydney [2017] NSWLEC 1222 Hearing dates: 22 & 29 March 2017 Date of orders: 04 May 2017 Decision date: 04 May 2017 Jurisdiction: Class 1 Before: Maston AC Decision: See paragraph [46] Catchwords: Building Certificate – appeal against refusal – Applicable Principles – Directions Legislation Cited: Environmental Planning & Assessment Act 1991 sections 149A, 149D, 149E & 149F Sydney Local Environmental Plan 2012 Sydney Development Control Plan 2012 Cases Cited: Ireland v Cessnock City Council [1999] NSWLEC 250; (1999) 110 LGERA 311 at 38; Chami v Lane Cove Council [2015] NSWLEC 1003 Mineral Wealth Pty Limted v Gosford City Council [2003] NSWLEC 153; (2003) 127 LGERA74 Category: Principal judgment Parties: Gcorp Property Pty Limited (Applicant) Council of the City of Sydney (Respondent) Representation: Counsel: Mr S, Nash (Applicant) Mr A Pickles SC (Respondent) Solicitors: Mr V, Panicker, Blackstone Waterhouse Lawyers (Applicant) Ms K Morrin, Principal Solicitor, Council of City of Sydney (Respondent) File Number(s): 2016/155222 Publication restriction: No

JUDGMENT 1. These proceedings are an appeal to the Court pursuant to s. 149F (l)(b) of the Environmental Planning and Assessment Act 1979 (the Act) against the refusal of the respondent to issue a Building Certificate under Part 8 of the Act with respect to the building comprising the mixed use development on land known as 33 – 49 Euston Street, Alexandria and being lot 100 DP 1208852, now comprising lots 1 – 49 and the common property in Strata Plan 89333. The building certificate application was dated 4 June 2015 and numbered BC/2015/56. It was refused by the Council by notice of refusal dated 20 August 2015 issued under s. 149D of the Act. 2. The original applicant was Pyramid Consulting Pty Limited. It was made with the consent of the owner of the land, G Corp Property Pty Limited, the applicant in these proceedings which is aggrieved by the Council's refusal to issue a building certificate: see s.149 F(l)(a). The application was of the kind referred to in s. 149B (l)(b) of the Act. 3. The Act sets out in s. 149D the obligations of a Council to which a building certificate application is made. Relevantly: 149D 1. The Council must issue a building certificate if it appears that: 1. There is no matter discernible by the exercise of reasonable care and skill that would entitle the Council, under this Act…: 2. To order the building to be demolished, altered, added to or rebuilt, or 1. To take proceedings for an order or injunction requiring the building to be demolished, altered, added to or rebuilt, or 2. There is such a matter but, in the circumstances, the council does not propose to make any such order or take any such proceedings. 1. 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. 2. The reasons must be sufficiently detailed to inform the applicant, that work that needs to be done to enable the Council to issue a building certificate. 1. The reasons given by the Council in its notice of refusal are as follows: Reasons for refusal D/2013/630 was approved at a Council meeting on 21 October 2013 for the "Demolition of existing building and construction of new mixed use development comprising of 40 residential units, 4 retail tenancies and basement car parking for 40 cars with vehicle access provided off Euston Lane". The works identified are not accordance with this approval and it is noted that no S96 modification has been submitted for this work. Whilst noting that a S96 modification can theoretically be submitted seeking retrospective consent for works that have already been completed, given the extent of the non-compliance and the concerns raised it is not likely that s S96 would be supported. As such Planning do not support the approval of the Building Certificate. 1. The reference in the reasons to D/2013/630 is a reference to the development application dated 15 May 2013 of that number for the mixed use development which was granted consent by notice of determination and the set of stamped approved plans identified in that consent. 2. Essentially, the ground of refusal is that "the works are not in accordance with [the development consent]". 3. This proposition is ambiguous. The preceeding reference in the statement of reasons to the development application D/2013/63 "approved on 21 October 2013" simply recites the short form description of the development used by the Council in which case it refers to the whole of the works that were required by the development consent. Alternatively, and more likely it is a reference to unspecified parts of the works that were not in accordance with the development consent. If that is so the statement of reasons is not sufficiently detailed and the "reasons" are inadequate to inform the applicant of the work that needed to be done, as required by ss. 149D, to enable the Council to issue a building certificate. 4. However, the applicant has not brought proceedings to challenge the validity or effectiveness, of the notice of refusal or the reasons nor filed any statement of facts and contentions in reply. In the course of the proceedings particular works have been identified by the Council either in its evidence or in documents filed or tendered by it, and the parties have treated these as the works that the Council considers needs to be done. 5. A series of Construction Certificates for the approved building works were issued between 1 July 2014 through to 24 February 2015. Also on 5 June 2015 an interim Occupation Certificate No 105 under Division 1, in Part 4A of the Act was issued for the building. Strata Plan 89333 was registered with respect to the land and building. 6. On 21 August 2015 the day after the application for the building certificate was refused, the Council forwarded a formal complaint to the Building Professionals Board regarding the conduct of the Project Certifier in regulating the development of the site. The Certifier in question was subsequently reprimanded and penalised. On 12 November 2015 a Notice of Intention to give an Order regarding the fire safety of the building was given to the Owners-Strata Plan 89333. On 17 March 2016 a Notice of Intention to give an order 2(a) under the Act was issued to the Owners-SP 89333 to demolish the non-approved deviations from the approved plans associated with the consent and construction certificates. On 21 March 2016 a Notice of Intention to give another Fire Safety Order was issued on the Owners-SP 89333. In the following month on 19 April 2016, the present appeal was commenced with respect to the Building Certificate. 7. The hearing commenced with a view of the site and the building, in the presence of the representatives of the parties and expert witnesses. 8. The Council's Statement of Contentions listed: Contention1: non-compliance with the construction certificate: 1. Euston Road Frontage: Façade identifying "Prodema" timber cladding and concrete texture finish not installed 2. Location of a window as built in a different location to the construction certificate. Contention 2: Rear façade – Euston Lane frontage: deviations from approved plans. 1. Lack of set-back for uppermost floor 2. Windows re-configured (and not horizontal) 3. Change in material selection for balustrade and forward placement of screens 4. Roof over exit not shown in approved plans. Contention 3: Basement carpark: 1. Relocation of caretaker's facilities (toilet) from under driveway ramp; 2. Ramp grade and level changed and extension of ramp into the carpark turning circle; Contention 4: Fire safety concerns: non-compliance with the Building Code of Australia, non-compliant fire services and Equipment, means of access deficiencies e.g. inadequate signage Contention 5: Rectification Works required to deal with the issues in the other contentions are set out in detail