GCorp Property Pty Ltd v The Council of the City of Sydney [2019] NSWLEC 1048

Land and Environment Court New South Wales

Medium Neutral Citation: GCorp Property Pty Ltd v The Council of the City of Sydney [2019] NSWLEC 1048 Hearing dates: 2 and 7 February 2018; 2 October 2018; 6 December 2018; 5 February 2019 Date of orders: 05 February 2019 Decision date: 05 February 2019 Jurisdiction: Class 1 Before: Maston AC Decision: The Court orders: (1) The appeal is dismissed. (2) The exhibits may be returned. (3) Any question or claim as to costs of the proceedings should be made by motion to a Judge of the Court or the Registrar. (4) I direct that the Registrar provide a copy of this judgment to the Owners' Corporation when it is published on the Case Law website. Catchwords: Building Certificate – appeal against refusal – application to extend time for complying with directions of the Court – dismissal of proceedings Legislation Cited: Environmental Planning and Assessment Act 1979 Category: Principal judgment Parties: GCorp Property Pty Ltd (Applicant) The Council of the City of Sydney (Respondent) Representation: Solicitors: D Arraj, Blackstone Waterhouse Lawyers (Applicant) A Simpson, City of Sydney Council (Respondent) File Number(s): 2016/155222 Publication restriction: No

Judgment

This decision was given as an extemporaneous decision. It has been revised and edited prior to publication. 1. COMMISSIONER: These proceedings were originally heard by me on 22 and 29 March 2017. They were commenced on the filing of the Class 1 application on 19 April 2016, in which the applicant, which I will refer to as GCorp, appealed against the refusal of the respondent council to issue a building certificate under Pt 8 of the Environmental Planning and Assessment Act 1979 (EPA Act). The circumstances giving rise to the proceedings are set out sufficiently in my judgment delivered on 4 May 2017. Initially, Mr S Nash of counsel appeared for the applicant and Mr A Pickles SC appeared for the Council. In later appearances the applicant's solicitors have appeared for GCorp and Mr Simpson solicitor has appeared for the Council. 2. Today Mr Latham appears for GCorp instructed by Mr Panicker. I did not make any final orders in my judgment of 4 May 2017 because the evidence indicated to me that it ought to be possible for the parties to provide a list of particular works that would be an acceptable response to the deficiencies relied upon by the Council and which in turn could be the basis for a direction to the Council to issue a building certificate in accordance with s 149F(3) of the EPA Act. I made directions designed to progress the matter by requiring the applicant to produce detailed plans and specifications for the extensive construction work needed to complete various parts of the building in a way that complied with the EPA Act and the Building Code of Australia and the recommendations of building experts who gave expert evidence in the proceedings. 3. The works required included mandatory fire safety works, which have to date remained incomplete, and structural work to both main facades, that is to both the Euston Road and Euston Lane frontages. Relying on the Affidavit of Mr Panicker, Mr Latham informed me that the required fire safety works had been completed but there is no direct evidence in the affidavit of Mr Panicker, sworn 4 February 2019 that proves that this was the case such as by providing certification of a suitably qualified expert. 4. Mr Simpson pointed out that there had been no certification provided to the Council for any of the fire safety works or the structural works required since the actual hearing of the appeal. All work has yet to be done and certified. 5. In Par 8 of Mr Panicker's affidavit it states, referring to a period of time commencing on 7 February 2018, that "The fire services works identified by the parties' joint experts have been completed." Reference was then made to a period of four weeks needed to obtain the BASIX certificate and fire services certificates for the completed works. I note that there is no evidence of the fire safety expert who had been retained by GCorp on previous occasions proving the completion of the works and I will take Mr Panicker's statement as his understanding of the position. This is a difficulty because Mr Latham informed me that no face to face meeting with the "client" (referring to the director Mr George Sarkis of GCorp) had taken place at any time from the beginning of the current year to date. 6. The plans and specifications required were intended to enable me to settle a draft order direction to the Council relating to the building certificate sought.