Land and Environment Court New South Wales Medium Neutral Citation: Robertson v Kiama Municipal Council [2019] NSWLEC 1091 Hearing dates: Conciliation conference on 21 February 2019 Date of orders: 05 March 2019 Decision date: 05 March 2019 Jurisdiction: Class 1 Before: Smithson C Decision: See orders at [20] below Catchwords: DEVELOPMENT APPLICATION: attached dual occupancy; conciliation conference; agreement between the parties; orders Legislation Cited: Environmental Planning and Assessment Act 1979 Kiama Local Environmental Plan 2011 Land and Environment Court Act 1979 State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 Texts Cited: Building Code of Australia Kiama Development Control Plan 2012 National Construction Code Category: Principal judgment Parties: Linda Robertson (Applicant) Kiama Municipal Council (Respondent) Representation: Solicitors: P Jackson, Pikes & Verekers Lawyers (Applicant) M Evans, Kells The Lawyers (Respondent) File Number(s): 2018/225778 Publication restriction: No Judgment 1. COMMISSIONER: This is an appeal by Linda Robertson (the applicant) lodged under s 8.7 of the Environmental Planning and Assessment Act 1979 (the EPA Act) against the refusal by Kiama Municipal Council (the Council) of development application DA No. 10.2017.195.1 (the application). 2. The application seeks consent under the EPA Act for conversion of the lower ground floor of an existing dwelling to an attached dual occupancy with associated works at Lot 189 DP 33904, being 5 Gwinganna Avenue, Kiama (the site). 3. The existing multi-level dwelling the subject of the application was substantially altered under a consent issued by the Council in 2009. Subsequent modifications to the consent approved by the Council saw installation of bedrooms, a bathroom and a wet area on the lower ground floor. However, inspections by the Council indicated other works had been undertaken which enabled the lower ground floor to be occupied as a separate dwelling. Accordingly, the Council has not issued an Occupation Certificate for the works the subject of the 2009 consent, as modified. 4. The applicant subsequently lodged an application for use of the lower ground floor of the approved dwelling as a separate but attached dual occupancy. The upper two levels of the existing dwelling would remain as the second dual occupancy. The application was notified with no objections received. 5. The Council refused the application arguing that works were required to facilitate the dual occupancy under the Building Code of Australia (BCA) and amenity issues would arise for future occupants of each of the dual occupancy dwellings in terms of provision of private open space, separate access and privacy concerns. 6. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (the LEC Act). I presided over that conciliation. As a result of that conciliation, an agreement under s 34(3) of the LEC Act was reached between the parties. 7. As the presiding Commissioner, I am satisfied that the decision is one that the Court can make in the proper exercise of its functions as required by s 34(3) of the LEC Act. As a consequence, I am required under s 34(3)(a) of the LEC Act to dispose of the proceedings in accordance with the parties' decision. 8. The LEC Act also requires me to set out in writing the terms of the decision; s 34(3)(b). The orders made to give effect to the agreement meet that requirement. 9. In making the orders, I am not required to make a merit assessment of the development issues that were originally in contention between the parties. However, I am required to ensure that all of the preconditions to the granting of consent have been met. 10. The Statement of Facts and Contentions (SFC) filed with the Court by the Council indicates that the Council's concerns were all merit based other than concerns with BCA compliance. 11. The merit issues related to compliance with the Kiama Development Control Plan 2012 (the DCP) including that each of the proposed dwellings contain adequate private open space and an identifiable street entrance. The BCA compliance issues largely related to fire safety issues and acoustic treatments required to each dwelling given the proposed change of use from a Class 1 building to a Class 2 building under the BCA. Conversion of the building for use as a dual occupancy would not meet the 'deemed to satisfy' provisions of the BCA and would therefore need to meet performance requirements of the National Construction Code (NCC). 12. The site is within the R2 Low Density Residential zone under the Kiama Local Environmental Plan 2011 (the LEP) and the proposed development is permissible with consent in that zone. 13. Under the LEP, the site has a maximum permissible floor space ratio (FSR) of 0.45:1. No change to the approved FSR of 0.44:1 or to the approved building envelope or height is proposed. 14. Each dual occupancy dwelling is required under the DCP to have access to adequate areas of private open space. Under the LEP, 'private open space' is defined as follows: private open space means an area external to a building (including an area of land, terrace, balcony or deck) that is used for private outdoor purposes ancillary to the use of the building. 1. The Council argued that the DCP requires that such open space not solely comprise terraces, as was proposed for the upper level dwelling. Further, there were privacy concerns with overlooking from the upper level dwelling of the private open space, being the rear yard, of the lower dwelling. 2. Modifications to the application during conciliation resulted in a portion of the rear yard being allocated to and accessed from the upper dwelling and installation of privacy screens between the areas of private open space. Mechanisms were also agreed to designate separate entrances for each dwelling. 3. A detailed BCA report was provided addressing the fire safety and acoustic works required to address the Council's BCA concerns. Agreed conditions of consent require compliance with a Fire Engineering Report outlining required works prior to occupation of the dwellings. Subdivision will not be supported unless further upgrade works are undertaken to meet BCA requirements for fire separation and noise attenuation between the dwellings. 4. A condition also requires an application be made under s 6.22 and s 6.23 of the EPA Act for a building information certificate for the unauthorised works to the approved dwelling, prior to occupation. 5. A Certificate has been provided demonstrating compliance with State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 and consent conditions require compliance with this BASIX Certificate. 6. The final orders to give effect to the parties' agreement under s 34(3) of the LEC Act are: 1. The applicant is granted leave to rely upon the amended architectural drawings prepared by AjF Designs being sheets 1 of 13 – 13 of 13 dated 21 February 2019. 2. The appeal is upheld. 3. Development consent is granted to Development Application DA No. 10.2017.195.1 of 10 July, 2017, as amended, for the change of use – conversion of lower ground floor and associated works creating an attached dual occupancy in respect of premises being Lot 189 DP 33904, known as number 5 Gwinganna Avenue, Kiama, in accordance with the conditions attached as Annexure 'A'. ………………………. Jenny Smithson Commissioner of the Court Annexure A ******** 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: 06 March 2019