Karen Ayoubi v Fairfield City Council [2018] NSWLEC 1046

Land and Environment Court New South Wales

Medium Neutral Citation: Karen Ayoubi v Fairfield City Council [2018] NSWLEC 1046 Hearing dates: 6 February 2018 Date of orders: 09 February 2018 Decision date: 09 February 2018 Jurisdiction: Class 1 Before: Adam AC Decision: See [23] Catchwords: Appeal - Application for building certificate - unauthorised structures – actions required before building certificate could be issued - consent orders Legislation Cited: Environmental Planning and Assessment Act 1979 Fairfield Local Environmental Plan 2013 Land and Environment Court Act 1979 Water Management Act 2000 Cases Cited: Sheree Waks v Inner West Council [2017] NSWLEC 1321 Texts Cited: Practice Note Class 1 Development Appeals Category: Principal judgment Parties: Karen Ayoubi (applicant) Fairfield City Council (respondent Representation: Ms F Berglund (applicant) Mr J Thompson (respondent)

Blackstone Waterhouse Lawyers (applicant) Ritchie & Castellan Solicitors (respondent) File Number(s): 2017/108711 Publication restriction: No

Judgment 1. The applicant, Karen Ayoubi, has appealed against the refusal, by letter dated 21 March 2017, by Fairfield City Council, the respondent, of an application for the issuing of a building certificate for Lot 83, DP11658, 52 Riverview Road. 2. The building certificate application was made on 10 January 2017. The application was made pursuant to s 149B of the Environmental Planning and Assessment Act 1979 (EPAA). The appeal is brought pursuant to s 149F (1) and s 17(d) of the Land and Environment Court Act 1979. The applicant seeks an order that the respondent be directed to issue a building certificate pursuant to s 149F(3) in respect of those structures for which a certificate was sought by the s 149B application. 3. The site has an area of 1051 m² with a north – south orientation. The street frontage is to Riverview Road at the north, and to the south the property abuts Orphan School Creek, as illustrated below on the aerial image taken from Annexure A of the respondent's Statement of Facts and Contentions (Exhibit 1). The land is zoned R2 Low Density Residential in the Fairfield Local Environmental Plan 2013. 1. The site is subject to part high and part medium risk flooding due to mainstream flooding (from Orphan School Creek) and part high, medium and low risk due to overland flooding. 2. Situated on the property are a number of structures, labelled A – F in the aerial image. Structure A is the original dwelling on the site. Other than structure A, construction of the structures on the property has not been approved. 3. Structure B is an extension to the original house. The extension has been completed and is occupied. For Structure B, Order 1 requires that a number of certificates are to be provided and that a Flood Emergency Response Plan be prepared. In addition alterations are to be constructed to comply with the BCA for a Flood Hazard Area. A positive covenant is to be placed on the Title so that any new owner is made aware of the need to replace non-flood compatible materials in accordance with the BCA for Flood Hazard Areas. 4. South of Structure B, a large concrete slab has been laid boundary to boundary (structure C). On the western half of Structure C a steel frame has been constructed. This part of C is variously referred to as the alfresco area and as a gazebo. In view of the agreement between the applicant and the respondent it is unnecessary for me to determine the appropriate description or proposed future use of this part of the structure. 5. Structure D is a metal clad shed on a concrete slab. 6. Structure E comprises a retaining wall constructed on the southern boundary of the property adjacent to Orphan School Creek. Fill has been emplaced behind the wall. 7. Structure F is the metal framework for a deck, although no decking has been laid. Part of the structure extends beyond the property boundary and overhangs Orphan School Creek. 8. In its Statement of Facts and Contentions filed on 16 June 2017 (Exhibit 1) the respondent raised a number of contentions, variously applicable to structures B – F. The respondent said these contentions warranted refusal of the application to issue a building certificate for all or any of the structures. 9. The matter commenced as a s34 conciliation conference in September 2017; this was held on site with the parties and many of the parties' experts present. It was not possible for the parties to come to agreement and the s 34 conciliation was terminated. Pursuant to s 34 (4) (b) the parties agreed to me hearing the matter. Between September 2017 and the hearing, discussions between the parties, and joint conferencing of the parties' experts, resolved a number of contentions. However, in an updated response to the applicant's evidence dated 5 February 2018 (Exhibit 1) the respondent agreed that while a number of contentions were no longer in issue, several contentions were still pressed. 10. At the hearing the applicant was represented by Ms Berglund and the respondent by Mr Thompson. 11. At the commencement of the hearing on 6 February the parties informed the Court that they had reached an agreement to resolve the issues and handed up prepared Consent Orders for the Court's approval. 12. When Consent Orders are sought the Court must 'determine whether it is lawful and appropriate to grant the consent or approval having regard to the whole of the relevant circumstances' (Practice Note Class 1 Development Appeals at paragraph 99). 13. The Practice Note also refers to the need to demonstrate that 'any objection by any person has been properly taken into account'. I was advised by Mr Thompson that it was not the practice of the council to notify neighbours of applications for building certificates and thus there were no objectors. In this matter there had been no development applications for any of the structures, so there had been no earlier notification to neighbours. However, as what is proposed by the orders is the removal of several of the structures and modifications to others the absence of notification and objections is not a factor in my consideration. 14. For the unauthorised extension (Structure B) Order 1 requires that a number of certificates are to be provided and that a Flood Emergency Response Plan be prepared. In addition alterations are to be constructed, to comply with the BCA for a Flood Hazard Area. A positive covenant is to be to be placed on the Title so that any new owner is made aware of the requirement to replace non-flood compatible materials in accordance with the BCA for Flood Hazard Areas. 15. The agreement between the parties requires the removal of the retaining wall and fill (Structure E) and of the intended deck (Structure F). The western half of the concrete slab (Structure C) is to be removed along with the steel frame. The shed (Structure D) is to be relocated to the remaining eastern part of the slab (structure C). 16. Construction of Structures E and F occurred without the benefit of a Controlled Activity Approval under s 91 of the Water Management Act 2000 as required by section 91A (2) of the EPAA. Removal of the works will also require a Controlled Activity Approval. 17. Because of the need to obtain approval from an external agency, the timetable proposed in Orders 4 and 5 provides for a longer period of time for completion than for the orders for other actions. 18. Mr Thompson drew my attention to the judgment in Sheree Waks v Inner West Council [2017] LEC 1321 where a similar process, leading to the issuing of a building certificate, had been followed. 19. After consideration of the expert reports (Exhibit 2) and the relevant statutory provisions I am satisfied that it is lawful and appropriate to make the Orders sought by consent of the parties.