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. Orders 1. The Court orders by consent: 1. The Applicant is to carry out the following work or provide certificates as follows:- 1. Unauthorised Addition to Approved Dwelling- (B) on Attachment "A" to the Respondent's Statement of Facts and Contentions, ("the Contentions") 1. a Termite Certificate certifying treatment of the unauthorised addition to the dwelling to be provided by 28 February 2018. 2. a further Electrical Certificate to be provided in respect of the unauthorised addition to the approved dwelling by 28 February 2018. 3. the unauthorised addition to be altered to be constructed to comply with ABCB Standard- Construction of Buildings in Flood Hazard Areas, 2012 version, 2012.2 referred within the BCA, NCC Volume 2, 3.1 0.3 Flood Hazard Area, in particular the following: - Part 2 Requirements for Utilities and Part 2.6, Requirements for Enclosures below the Flood Hazard Level, (FHL). 4. a positive covenant is to be placed on the Title to identify the obligations of any new owner to replace non-flood compatible materials within the unauthorised addition, in accordance with BCA for a Flood Hazard Area. 5. a Certificate is to be provided by a suitably qualified engineer verifying the addition is suitable to withstand the forces of flood water, debris and buoyancy, up to and including a 100 year flood. 6. a Flood Emergency Response Plan, (FERP), is to be provided from a suitably qualified person. Items (iii) - (vi) to be completed by 30 June 2018. 1. Unauthorised Concrete Slab and Partially Constructed Steel Frame - (C) of the Contentions 1. the raised concrete area (metal frame) marked in red on the plan marked Annexure "A" be removed by 30 June 2018. 2. the remaining concrete slab to be cut at its northern end so as to create an open area between the northern end of the slab and the house to facilitate the flow of flood water in any flood event to be completed by 31 July 2018 in accordance with Annexure "A". 3. a Termite Certificate is provided certifying treatment of the concrete slab area by 28 February 2018. 4. work as executed plan for drainage constructed within concrete slab area and verification that stormwater drainage has been constructed in accordance with Council's Drainage Policy by 31 July 2018. 1. Unauthorised Metal Clad Shed - (D) of the Contentions 1. The unauthorised metal clad shed to be moved from its present position and relocated in accordance with the Plan annexed and marked "A" and a Structural Engineer's Certificate certifying the shed is structurally adequate to be provided by 31 July 2018. 1. Unauthorised Retaining Wall and Landfill - (F) of the Contentions 1. Retaining wall and landfill to be removed by 30 September 2018. 1. Unauthorised Deck Structure - (E) and (F) of the Contentions 1. The applicant to remove this structure by 30 September 2018. 1. The applicant is to provide a Report to the Respondent within 7 days of the expiry of any period specified above confirming that the works listed above have been completed. (6A) The applicant is to comply with the following:- 1. Engage a person with suitable environmental qualifications to classify the waste in accordance with the NSW EPA's Waste Classification Guidelines, and provide a report to council identifying the waste classification. 2. Remove all waste including that generated from demolition of structures and removal of unauthorised land-fill, and transport it to a place that can lawfully receive that type of waste. Provide to council proof of lawful disposal of waste including, but not limited to, copies of disposal dockets. All demolition works undertaken so as to comply with this Order must be conducted in accordance with the relevant requirements of the NSW Work Health and Safety Act 2011, the NSW Work Health and Safety Regulations 2011, Australian Standard AS: 2601 -The Demolition of Structures and the Work Safe Australia Demolition WorkCode of Practice. 1. If the Report specified in the above order is not provided to the Respondent within 14 days of the due date, the Respondent is required to exercise the liberty to relist the matter. 2. If the Applicant complies with the abovementioned requirements, the Respondent is to file and serve a copy of the Building Certificate, by 12 October 2018 that it proposes should result from these proceedings if the Court determines, as a consequence of the resumed proceedings, that such a Certificate should be issued. 3. Matter adjourned to 19 October 2018. 4. Liberty to relist on 3 days' notice. ………………………. Acting Commissioner Adam Annexure A (316 KB, 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: 09 February 2018