Sheree Waks v Inner West Council [2017] NSWLEC 1321

Land and Environment Court New South Wales

Medium Neutral Citation: Sheree Waks v Inner West Council [2017] NSWLEC 1321 Hearing dates: 14 - 15 November 2016; 25 May 2017 Date of orders: 23 June 2017 Decision date: 23 June 2017 Jurisdiction: Class 1 Before: Martin SC Decision: (1) The appeal is upheld. (2) Pursuant to s 149 F(3) of the Environmental Planning and Assessment Act 1979 the Council is directed to issue a building certificate to the Applicant in accordance with the form annexed and marked "IWC1" within 28 days of the date of this judgment. (3) The Exhibits, save for Exhibits 1, 3 and 4, are returned. Catchwords: Building certificate application in respect of dual occupancy – rectification works – fire safety certificate Legislation Cited: Environmental Planning and Assessment Act 1979 ss 149D, 149F(1)(a) Environmental Planning and Assessment Regulation 2000 cll 170, 175 Category: Principal judgment Parties: Sheree Waks (Applicant) Inner West Council (Respondent) Representation: Counsel: Mr D Baird (Applicant) Mr J Thompson (Respondent)

Solicitors: Baird Lawyers (Applicant) Ritchie & Castellan Solicitors (Respondent) File Number(s): 2016/221524 Publication restriction: No

Judgment 1. Ms Sheree Waks is the co-owner of a property at 136 Louisa Road, Birchgrove, described as Lot 2 DP 592489 (the Site). The Council approved a Development Application for alterations and additions to the house to convert it to a dual occupancy on 4 January 1993, and a Building Application was approved on 20 May 1993. 2. It is a substantial home, as you would expect given its beautiful surroundings, comprising a five level rendered dwelling with a tile and concrete roof. There is also a single garage at street level. 3. On 22 March 2016 Ms Waks lodged an application with the Council for a building certificate "to cover unauthorised works undertaken 23 years ago". This work comprised "additional bedrooms, bathrooms, doors, laundry areas, moving of doors". 4. The Building Certificate application sought to address alleged unauthorised works as set out in a summons filed in respect of Class 4 civil enforcement proceedings (2016/159684) [Applicant's Notice of Motion dated 31 August 2016]. 5. The Council refused the application on 12 July 2016. In its letter of that date, the reasons for refusal it gave were as follows: * It is considered that the extent of the unauthorised works allows for the building to be used for a different purpose that that approved under the [building approval issued in 1993] for the use as a dual occupancy for two separate sole occupancy units; * The fire safety measures contained in the building are inadequate; * Health and safety measures contained in the building pose a risk to people using the building due to inadequate barriers; * The empty pool poses an unacceptable risk; * The collection of water in the bottom of the pool could result in unhealthy conditions. 1. The refusal letter also set out a number of matters required to be attended to by the owner before a building certificate could be issued. 2. It is in respect of this refusal that the Applicant has brought her appeal under s 149F of the Environmental Planning and Assessment Act 1979 (the EPA Act). 3. In its response to this appeal, the Council's Statement of Facts and Contentions (dated 29 September 2016) raised two groups of issues to support its contention that the appeal be refused: firstly, the Application was incomplete, for example drawings showing proposed works were absent, and insufficient information had been provided to the Council in support of the Applicant's application. Secondly, the building was not safe, did not restrict the spread of fire and was not fit for occupation and use in accordance with its classification under the National Construction Code – Building Code of Australia. 4. Importantly, the Council's contentions were framed around a significant assumption: that the Applicant accepts and will comply with the terms of the current development consent for the use of the building as a Dual Occupancy. Further it is assumed, noting the terms of the Orders made by the Court, by consent, 18 December 2015 and entered 5 January 2016, in LEC Case no 40645 of 2015, that the use will remain a Dual Occupancy (class 2 building under the National Construction Code (NCC) – Building Code of Australia (BCA) [Statement of Facts and Contentions p 6]. 1. In considering this appeal, the Court has proceeded upon the same assumption as to lawfulness. 2. The relevant provisions governing the issuing of building certificates are contained in Part 8 of the EPA Act. It provides a mechanism whereby upon the satisfaction of certain matters, a building certificate is able to be issued to regularise a breach of the planning law. 3. Section 149B sets out who may apply for a building certificate, which in this case includes the Applicant. Under the relevant terms of s 149 D(1), a 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. 1. In terms set out in some detail at s149E the granting of a building certificate also provides some protection to the holder of that certificate, while retaining a Council's ability to take certain kinds of enforcement action as the need arises. 2. The Court has a number of options in terms of the decision which it can make following its determination of this kind of application. Its jurisdiction is provided for at s 149F as follows: (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.