Land and Environment Court New South Wales Medium Neutral Citation: Macaulay v Bayside Council [2019] NSWLEC 1568 Hearing dates: Conciliation conference on 12 November 2019 Date of orders: 21 November 2019 Decision date: 21 November 2019 Jurisdiction: Class 1 Before: Morris AC Decision: The Court orders that: (1) The appeal is upheld. (2) Pursuant to s 8.18(4)(c) of the Environmental Planning and Assessment Act 1979, the Court makes the Order set out in Annexure "A" in substitution of the Development Control Order issued by the Council to the Respondent dated 22 January 2019. Catchwords: ORDERS – unauthorised attic construction – compliance with National Construction Code – Building Code of Australia Legislation Cited: Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 Texts Cited: National Construction Code – Building Code of Australia Category: Principal judgment Parties: Marie Marlene Macaulay (Applicant) Bayside Council (Respondent) Representation: Counsel: A Miranda (Solicitor) (Applicant) P Brown (Solicitor) (Respondent) Solicitors: Pryor Tzannes & Wallis (Applicant) HWL Ebsworth Lawyers (Respondent) File Number(s): 2019/56891 Publication restriction: No Judgment 1. COMMISSIONER: This is an appeal pursuant to s 8.18 of the Environmental Planning and Assessment Act 1979 (EPA Act) by the applicant against a General Order (the Order) issued by Bayside Council (the Council). The application seeks to have to have the Order dismissed and the applicant be granted leave to obtain a building certificate with respect to the installation of the dormer windows the subject of the Order. 2. The Order that is the subject of the appeal was issued by the Council on 22 January 2019 and is in two parts. 3. The first is an Order No 3 under Schedule 5, Part 4, Clause 5. It requires the applicant to: "Demolish all dormer windows within the roof line." 1. The reasons for the Order are: 1. The installation of the unauthorised dormer windows has been carried out without prior development consent of Council in a case where prior development consent and construction certificate are required. 2. The unauthorised installation of the dormer windows may be detrimental to the amenities of adjoining property owners, the future occupants of the building and the environment. 3. The installation of the unauthorised dormer windows have altered the roof angles and lining without prior consent from a consent authority where prior approval is required. 4. The works, both internal and external, undertaken do not fall within the specified development controls under the provisions of the State Environmental Planning Policy (Exempt and Complying Development Codes) 2008. 1. The second part of the Order is an Order No 10 and requires the applicant to restore the premises to the condition that they were previously approved. 2. The reasons for that part of the Order are: 1. Unauthorised works have been undertaken without any consent where prior consent from a consent authority is required. 2. It is unknown as to the building standards and compliance with the Building Code of Australia. 3. Addition of extra room in the roof cavity requires structural engineering certification. It is unknown whether structural adequacy is achieved in these alterations and additions carried out upon this residence. 4. The works, both internal and external, undertaken do not fall within the specified development controls under the provisions of State Environmental Planning Policy (Exempt and Complying Development Codes) 2008. The site and its context 1. The site is known as No 31A The Grand Parade, Brighton Le Sands and is in a low density residential area opposite Botany Bay. Background to the proceedings 1. The Council, following the issue of Notice of Proposed Order, served the Demolish Works Order on 22 January 2019. 2. There is no issue in the proceedings that the Order has not been properly made or served. 3. The appeal against the Order was filed on 20 February 2019. 4. Subsequent to filing the application, the applicant lodged an application for a Building Information Certificate (BIC) under the provisions of s 6.24 of the EPA Act. That application applied to part of the dwelling house, the description of the part of the dwelling is: "Change existing hip roof to a gable roof. Three dormer windows to South-West pitched roof. Front double entrance door. Non-Habitable Attic room with attic ladder." 1. The Council issued the BIC on the day of the conciliation conference following receipt of documentation including a structural engineer's certificate, smoke detector certification, survey report and photo evidence. Its officers have also carried out site inspections in relation to the works. 2. Completion of those works has led the Council to be satisfied with the works the subject of the BIC, however it remains concerned that if the second part of the Order is revoked, the area may be used for habitable purposes. The parties agree that the attic space is not fit for that purpose as it is non-compliant with the relevant provisions of the National Construction Code – Building Code of Australia. The parties agreed that a modified Order that prevents use of the attic space for habitable purposes would be appropriate. 3. It is on that basis that the parties filed an agreement pursuant to s 34(3)(a) of the Land and Environment Court Act 1979 (LEC Act). Conclusion 1. The Court's powers in relation to orders is contained at s 8.18(4) of the EPA Act as follows: On hearing an appeal, the Court may: (a) revoke the development control order, or (b) modify the development control order, or (c) substitute for the development control order any other order that the relevant enforcement authority who gave the order could have given, or (d) find that the development control order is sufficiently complied with, or (e) make such order with respect to compliance with the development control order as the Court thinks fit, or (f) make such other order with respect to the development control order as the Court thinks fit. 1. I am satisfied that the modified Order agreed by the parties is one that can be legally made pursuant to the provisions of 8.18(4) of the EPA Act. 2. At the conclusion of the conciliation conference, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties (being a decision that the Court could have made in the proper exercise of its functions). 3. In accordance with the provisions of s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the decision. I am satisfied that the parties' decision is one that the Court could have made in the proper exercise of its functions. 4. The Orders of the Court are: 1. The appeal is upheld. 2. Pursuant to s 8.18(4)(c) of the Environmental Planning and Assessment Act 1979, the Court makes the Order set out in Annexure "A" in substitution of the Development Control Order issued by the Council to the Respondent dated 22 January 2019. ………………………… Sue Morris Acting Commissioner of the Court Annexure A (296 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: 21 November 2019