Australian Islamic Cultural Centre Inc v Canterbury Bankstown Council; Decode Group Pty Ltd v Canterbury Bankstown Council

[2023] NSWLEC 1252

Land and Environment Court

New South Wales

Medium Neutral Citation:

Australian Islamic Cultural Centre Inc v Canterbury Bankstown Council; Decode Group Pty Ltd v Canterbury Bankstown Council [2023] NSWLEC 1252

Hearing dates:

4 – 5 May 2023

Date of orders:

24 May 2023

Decision date:

24 May 2023

Jurisdiction:

Class 1

Before:

O’Neill C

Decision:

The orders of the Court in 2021/345923 are:

(1)   The appeal is upheld.

(2)   The Development Control Order issued to Australian Islamic Cultural Centre Inc dated 10 November 2021 is substituted for the Development Control Order in accordance with the terms provided for at Annexure A.

(3)   Within 28 days of notification to the Respondent by the Applicant of the completion of the works specified in Schedule 1 to the Development Control Order at Annexure A, the Applicant is to submit a Building Information Certificate application to the Respondent for the works detailed in Schedule 2 to the Development Control Order at Annexure A.

The orders of the Court in 2023/140903 are:

(1)   The appeal is upheld.

(2)   The Development Control Order issued to Decode Group Pty Ltd dated 10 November 2021 is substituted for the Development Control Order in accordance with the terms provided for at Annexure A.

Catchwords:

DEVELOPMENT CONTROL ORDERS – stop work orders – works to make the building compliant with the Building Code of Australia

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 8.18, 9.24, Sch 5 Pt 1, Pt 11 cl 29

Land and Environment Court Act 1979, s 34

Canterbury Local Environmental Plan 2012, cl 6.2

Cases Cited:

Al – Faisal College Limited v Canterbury Bankstown Council [2018] NSWLEC 1467

Category:

Principal judgment

Parties:

Australian Islamic Cultural Centre Inc (Applicant)
Decode Group Pty Ltd (Applicant)
Canterbury Bankstown Council (Respondent)

Representation:

Counsel:
A Galasso SC (Applicants)
T Ward (Solicitor) (Respondent)

Solicitors:
Mills Oakley (Applicants)
Pikes & Verekers Lawyers (Respondent)

File Number(s):

2021/345923
2023/140903

Publication restriction:

No

Judgment

1. COMMISSIONER: These are two appeals pursuant to the provisions of s 8.18(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against two Development Control Orders (DCOs) issued by Canterbury Bankstown Council (the Council) pursuant to s 9.34(1)(a) and Sch 5 to the EPA Act to Australian Islamic Cultural Centre Inc, as the owner of the land, and to Decode Group Pty Ltd, as a person engaged in undertaking the work. The two DCOs are stop work orders, pursuant to Sch 5, Pt 1 to the EPA Act. The site is 65-69 Croydon Street, Lakemba.

2. The appeal was subject to conciliation on 1 December 2022, in accordance with the provisions of s 34 of the Land and Environment Court Act 1979 (LEC Act). As agreement was not reached during the conciliation phase, the conciliation conference was terminated on 21 December 2022, pursuant to s 34(4) of the LEC Act.

3. On 3 May 2023, the Court ordered that the Decode Group Pty Ltd be removed from the original proceedings (2021/345923) as an Applicant and permitted a new Class 1 appeal to be filed (2023/140903); and ordered that evidence in one appeal be evidence in the other.

Orders sought by the Applicant

4. In summary, the Applicant seeks court orders that the DCOs in each matter be substituted, pursuant to s 8.18(4)(c) of the EPA Act, for DCOs requiring the Applicants to stop all works, other than the works in accordance with a schedule of works that will render the existing structure on the site compliant with the Building Code of Australia (BCA). The schedule, identified as Schedule 1, includes a commitment that works detailed in the schedule are to be competed within 3 months of the date of the orders. The orders sought include an order that the Applicant is to submit a Building Information Certificate (BIC) application to the Council within 28 days of notifying the Council of the completion of works. The works the subject of the future BIC are detailed in a second schedule, Schedule 2.

5. The Applicant submits that the Court has power to make an order requiring the Applicant to lodge a BIC application in the future, under s 8.18(4) (f) of the EPA Act.

Issues

6. The Council’s contentions can be summarised as:

• Unauthorised development was being carried out on the site in contravention of the EPA Act. The DCOs were validly issued.

• No development consent and/or BIC have been obtained in relation to the unauthorised works.

• The structural adequacy of the unauthorised works is unknown.

• Undertaking the works in the Applicant’s proposed Schedule 1 is not appropriate when insufficient information has been provided to establish the rise in storeys of the building, as the rise in storeys will determine whether the Type A or Type B construction requirements are applicable.

• Insufficient information has been provided to allow for an assessment of the earthworks and consideration of the mandatory matters under cl 6.2(3) of the Canterbury Local Environmental Plan 2012 (LEP 2012). No site validation report or site audit statement has been provided identifying that the land is fit for purpose, as required by condition 2 of the development consent.

The site and its context

7. The site is on the western side of Croydon Road, on the block bounded by Myee Street to the south and The Boulevarde to the north. The site is irregular in shape and has an area of 5,124.65m².

Background

8. Development Consent No 140/2016 was granted by the Court on 4 September 2018 (Al – Faisal College Limited v Canterbury Bankstown Council [2018] NSWLEC 1467).

9. A development application was lodged with the Council on 1 May 2023 (Ex A). The development application seeks consent for minor works to permit the completion of the development, to ensure compliance with relevant BCA provisions, as well as partial filling of the area under the existing building and replacement of the front fence.

Expert evidence

10. The Applicants relied on the expert evidence of Jeff Mead (planning), Dr Hasan Alijagic (structural and geotechnical engineering), Warwick Davies (geotechnical engineering), Roland Allam and Trent De Maria (Building Code and fire safety), Thomas Taylor (acoustic engineering) and Brett Maynard (traffic).

11. The Council relied on the expert evidence of Kate Bartlett (planning), Stephen Branch (structural and geotechnical engineering), Peter Rossello (Building Code and fire safety), Jimi Ang (acoustic engineering) and David Wilson (traffic).

12. The experts prepared joint reports that were admitted into evidence as structural engineering (Ex 2), traffic (Ex 3), Building Code and fire safety (Ex 4), planning (Ex 5), geotechnical engineering (Ex 6) and acoustic engineering (Ex 7).

13. The Applicant did not object to the admission of the joint reports, however, submitted that all the joint reports other than Ex 4 are of no relevance to these appeals.

14. The Building Code and fire safety experts agreed on the works to be carried out as listed under C1.1 of Schedule 1 at Annexure A. The experts agreed that as part of the requirements of Schedule 1, the Applicant is required to prepare a Fire Resistance Level Construction Report (the report) to demonstrate that the levels in the Fire Safety Plans (Ex F) are met. It is the evidence of the experts that the report can be completed within the 3-month time frame. I accept the agreement of the experts. The report will be submitted to Council as part of the BIC application.

Submissions

15. The Applicant submitted that there are various pathways under the EPA Act for the Applicant to regularise the existing building to comply with the provisions of the BCA, including this proposed path of carving out the minor works required to regularise the building from the stop work order, so that these works can be completed prior to the BIC application, as they are all specifically directed to making the BIC application.

16. The Applicant submitted that a BIC application is required, and the purpose of the works listed in Schedule 1 at Annexure A is to regularise the existing building in order to make the BIC application.

17. The Applicant submitted that Schedule 2 foreshadows the scope of works to be included in the BIC application and that the Council accepts that Schedule 2 is a comprehensive list of unauthorised works.

18. The Council submitted that the works proposed under Schedule 1 at Annexure A should be assessed as part of the development application process, as excluding these works from the operation of the stop work order permits the works to be undertaken without assessment and development consent, pursuant to cl 29, Part 11, Sch 5 to the EPA Act.

Consideration

19. I accept the Applicant’s submissions. I am satisfied that the works listed in Schedule 1 at Annexure A are benign in terms of environmental impacts and for the purpose of making the existing building comply with the relevant provisions of the BCA, so that a BIC application can then be lodged with the Council. I am satisfied that it is appropriate to exclude only the works listed in Schedule 1 at Annexure A from the stop work order.

20. It is not necessary to determine the rise in storeys of the existing building or whether the Type A or Type B construction requirements are applicable for the purpose of carrying out the works listed under Schedule 1 at Annexure A.

21. An assessment of the earthworks and consideration of the mandatory matters under cl 6.2(3) of LEP 2012 will appropriately be undertaken as part of the assessment of a BIC application.

22. I accept the Applicant’s submission that the peer review requirement sought to be imposed by the Council by a condition of consent in relation to the fire engineering report is unnecessary, as the condition requires the report be prepared by a “suitably qualified person” and the report will be submitted to the Council for review as part of the BIC application process.

Orders

23. The orders of the Court in 2021/345923 are:

1. The appeal is upheld.

2. The Development Control Order issued to Australian Islamic Cultural Centre Inc dated 10 November 2021 is substituted for the Development Control Order in accordance with the terms provided for at Annexure A.

3. Within 28 days of notification to the Respondent by the Applicant of the completion of the works specified in Schedule 1 to the Development Control Order at Annexure A, the Applicant is to submit a Building Information Certificate application to the Respondent for the works detailed in Schedule 2 to the Development Control Order at Annexure A.

The orders of the Court in 2023/140903 are:

4. The appeal is upheld.

5. The Development Control Order issued to Decode Group Pty Ltd dated 10 November 2021 is substituted for the Development Control Order in accordance with the terms provided for at Annexure A.

Susan O’Neill

Commissioner of the Court

**********

Annexure A

Decision last updated: 24 May 2023