Elmaaz Holdings Pty Ltd v Canterbury-Bankstown Council [2019] NSWLEC 1628

Land and Environment Court New South Wales

Medium Neutral Citation: Elmaaz Holdings Pty Ltd v Canterbury-Bankstown Council [2019] NSWLEC 1628 Hearing dates: Conciliation conference on 11 December 2019 Date of orders: 18 December 2019 Decision date: 18 December 2019 Jurisdiction: Class 1 Before: Smithson C Decision: See orders at [18] below Catchwords: APPEAL – building information certificate for alterations to existing use – agreement between the parties – orders Legislation Cited: Canterbury Local Environmental Plan 2012 Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Texts Cited: Building Code of Australia Category: Principal judgment Parties: Elmaaz Holdings Pty Ltd (Applicant) Canterbury-Bankstown Council (Respondent) Representation: Counsel: S Nash (Applicant) D Baird (Solicitor) (Respondent)

Solicitors: Blackstone Waterhouse Lawyers (Applicant) Marsdens Law Group (Respondent) File Number(s): 2018/211746 Publication restriction: No

Judgment 1. COMMISSIONER: Elmaaz Holdings Pty Ltd (the Applicant) lodged an appeal under s 8.25 of the Environmental Planning and Assessment Act 1979 (the EPA Act) against the refusal by the Respondent, Canterbury-Bankstown Council (the Council), to issue a building information certificate (BIC) in response to Building Certificate Application No. BC/56/2017 (the application). 2. The application sought a BIC for premises situated at 147 Moorefields Road, Roselands (the site) to be issued under the provisions of s 6.25 of the EPA Act. 3. The site contains a warehouse structure approved in the 1970's but now located within the R3 Medium Density Residential zone under the Canterbury Local Environmental Plan 2012 (the LEP). The development on the land has existing use rights and would otherwise be prohibited in the zone. At the time of its purchase by the Applicant in March 2017, the Applicant advised that the building was being used as offices for a building firm. 4. In June 2017, a Complying Development Certificate (CDC) was issued for work on the site described as an office fitout and refurbishment of the existing building. 5. Further works were then undertaken by the Applicant without the consent of the Council. This included increasing the height of the roof at the rear over a mezzanine floor, and increasing the supporting walls to facilitate this. 6. The Council refused to issue the BIC for a number of reasons including that the works would result in an exceedence to the height and floor space ratio (FSR) permissible under the LEP and non-compliant setbacks. These works would have unacceptable impacts on the character of and development in the residential zone in which the site is situated. It was also contended that aspects of the proposed use (including a potential residential use of the mezzanine) had not been approved and were prohibited. Finally, there were concerns with the structural adequacy of the works, and that works required to be undertaken by the CDC to ensure compliance with the Building Code of Australia (BCA) had not been undertaken. 7. The appeal was listed for hearing before me and commenced onsite where the Court, with the parties and their experts, viewed the works and the adjoining development. It was noted that further additional works had been undertaken to address a number of the BCA concerns of the Council however, the structural adequacy of the works associated with the increased roof height could not be confirmed without removal of rendering of the walls supporting it. 8. The Court also heard from an objector who was the owner of an adjoining site raising concerns as to the bulk and scale of the building given the proximity of the development to townhouses approved or proposed on his site which adjoins the site to the side and rear. 9. The hearing was adjourned to enable structural engineers to access the works undertaken to the walls and to prepare their evidence. When the hearing recommenced, the parties were required of the Court to confirm what works remained in dispute or of concern to the Council and how of if the Applicant intended to respond. In considering their positions, the Court was advised that amendments to the application could be undertaken which were supported by both parties and addressed the Council's remaining contentions. 10. The parties therefore requested that the hearing be adjourned and the matter be listed as a conciliation conference under s 34(1) of the Land and Environmental Court Act 1979 (the LEC Act). This occurred and I presided over that conciliation after which an agreement under s 34(3) of the LEC Act was filed by the parties, and the hearing vacated. 11. As the presiding Commissioner, I am required under s 34(3) to be satisfied that the decision sought by the parties is one that the Court could make in the proper exercise of its functions and, being so satisfied, I am required under s 34(3)(a) of the LEC Act to dispose of the proceedings in accordance with the parties' decision. 12. The LEC Act also requires me to set out in writing the terms of the decision at s 34(3)(b). The orders made to give effect to the agreement meet that requirement. 13. In making the orders, I am not required to make a merit assessment of the development or of the issues that were originally in contention between the parties. However, I am required to ensure that any pre-conditions to ordering the issue of a building information certificate are met. 14. In the orders sought, the parties set out the nature and timing of required works to be undertaken in accordance with agreed amended plans and to meet the requirements of the BCA. This includes lowering the roof, and associated supporting walls, provision of a structural certificate, and certification of the adequacy of the fire rating of the walls. 15. The Council advised that no residential dwelling was proposed and the proposed use was now permissible, that the height was now compliant, and that the FSR was not increased from that approved in the CDC. 16. Further the Council had considered the objections from the adjoining neighbour and was satisfied with the impacts on development on that site and in terms of the character of the area. 17. I am therefore satisfied that there is no legal impediment to ordering the Council to issue the building information certificate as sought by the parties. 18. Noting the agreement of the parties that there be no order as to costs, the Court orders that: 1. The Applicant is given leave to rely on the following amended plans: 1. Architectural plans as prepared by Pyramid Consulting Pty Ltd: 1. Drawing No. A01 Revision N dated 4 December 2019. 2. Drawing No A02 Revision N dated 4 December 2019. 3. Drawing No. A05 Revision N dated 4 December 2019. 4. Drawing No. A06 Revision N dated 4 December 2019. 1. Shadow Diagram as prepared by Pyramid Consulting Pty Ltd: 1. Drawing No. SD01 Revision F dated 5 December 2019. 2. Drawing No. SD03 Revision F dated 5 December 2019. 3. Drawing No. SD02 Revision F dated 5 December 2019. 4. Drawing No. SD04 Revision A dated 5 December 2019. 5. Drawing No. SD05 Revision A dated 5 December 2019. 1. The Respondent is directed to issue a building information certificate with respect to part only of the building on the land at Lot H DP 29877 (147) Moorefields Road, Roselands comprising only the side and rear walls above the gutter and roof over the existing mezzanine floor depicted in the plans described in Order (1) above subject to and conditional upon compliance with Order (3) below. 2. The Applicant is to attend to the following by 28 February 2020: 1. Demolish part of the side walls above the gutter and rear wall and construct new perimeter walls over existing mezzanine floor as depicted in Drawing No. AO1 Revision N dated 4 December 2019. 2. The Applicant is to provide to Council certification to confirm that the new perimeter walls over the existing mezzanine floor and its connection to the existing side and rear walls and roof is structurally sound. 3. The Applicant is to provide to Council certification from an approved fire engineer that the external perimeter walls meet the specified fire resistance level (FRL) of 90/90/90 (including by way of a deemed to satisfy or a performance based solution). 4. The Applicant is to provide to Council final certification from an approved fire engineer or from Victor Shestopal of Fire Modelling and Computing to confirm that no additional fire safety provisions are required for the external cross wall on the southern elevation of the mezzanine level. Such certification is to detail reasons for this opinion. 5. The Applicant is to provide to Council certification that the new works carried out on the building comply with Part J Energy Efficiency provisions of the BCA.