Barbara St Pty Ltd v Fairfield City Council

[2021] NSWLEC 1145

Land and Environment Court

New South Wales

Medium Neutral Citation:

Barbara St Pty Ltd v Fairfield City Council [2021] NSWLEC 1145

Hearing dates:

1-2 February 2021

Date of orders:

23 March 2021

Decision date:

23 March 2021

Jurisdiction:

Class 1

Before:

Gray C and Bradbury AC

Decision:

Proceedings 2020/264873:

The Court orders that:

(1)   The appeal is upheld.

(2)   Development application no DA347.1/2018 (as amended on 1 February 2021) for the conversion of an existing mixed-use development to a boarding house comprising 13 boarding rooms, 1 manager’s room, manager’s office, 4 communal areas and at grade parking for 7 vehicles, 3 motorbikes and 3 bicycles at 35 Barbara Street Fairfield, is determined by the grant of consent subject to the conditions in Annexure A.

(3)   The exhibits are returned, except for exhibits C, D, E, F, 5, 8 and 9.

Proceedings 2020/70514:

The Court orders that:

(1) The respondent is to file and serve evidence that addresses Sch 5 Part 4 cl 2(1) of the Environmental Planning and Assessment Act 1979, proposed orders that require the Council to take the steps set out in cl 2(2), and any final submissions on the final orders by 6 April 2021.

(2)   The applicant is to file and serve any submissions in reply by 13 April 2021.

(3)   Pending the making of final orders on the appeal, liberty to restore is granted on 2 days’ notice.

Catchwords:

APPEAL – development application – boarding house – encroachment on public land – whether active street frontage required – car parking –contentions resolved

APPEAL – development control order – unauthorised development – fire safety – order likely to make residents homeless

Legislation Cited:

Environmental Planning and Assessment Act 1979

Fairfield Local Environmental Plan 2013

Land and Environment Court Act 1979

State Environmental Planning Policy (Affordable Rental Housing) 2009

Cases Cited:

BGP Properties Pty Limited v Lake Macquarie City Council (2004) 138 LGERA 237; [2004] NSWLEC 399

Mobil Oil Australia Ltd v Baulkham Hills Shire Council (No 2) 1971 28 LGRA 374

Texts Cited:

Australian Standard 2890.1:2004 – Parking Facilities

Building Code of Australia

Fairfield Citywide Development Control Plan 2013

Category:

Principal judgment

Parties:

Barbara St Pty Ltd (Applicant)
Fairfield City Council (Respondent)

Representation:

Counsel:
F Berglund (Applicant)
S Schneider (Solicitor) (Respondent)

Solicitors:
Paramonte Legal (Applicant)
Houston Dearn O’Connor (Respondent)

File Number(s):

2020/264873; 2020/70514

Publication restriction:

No

Judgment

1. COMMISSIONERS: On the edge of the Fairfield town centre is a relatively new building for which development consent was granted in 2012 for a 6-storey mixed-use development comprising a retail shop on the ground floor, a commercial suite on the first floor, 6 two-bedroom apartments, and associated car parking. The building was completed in late 2014 and is owned by the applicant, Barbara St Pty Ltd.

2. As approved, the configuration of the dwellings within the building was such that two 2-storey apartments were located across the first and second floors with internal staircases within, two apartments were located on the third floor, one apartment was on the fourth floor and one apartment was on the fifth floor.

3. A series of inspections were carried out by officers of Fairfield City Council (the Council) in late 2017 and early 2018, as a result of which it became apparent that a number of alterations had been made to the building contrary to the approved plans and without development consent having first been obtained. These alterations included:

1. The conversion of the first floor commercial premises to residential accommodation;

2. The reconfiguration of the floor plans for each level to create 3 studio apartments, 2 one-bedroom apartments, 5 two-bedroom apartments and 1 three-bedroom apartment.

3. The construction of a kitchenette and storage room on the ground floor where the communal garbage room was to have been located;

4. The enlargement of the office on the ground floor with a corresponding reduction in the area of the lift lobby; and

5. The construction of a communal garbage room in the car park and a reduction in the number of car parking spaces required to be provided by the development consent.

4. The result of the unauthorised works is that there are 11 residential apartments rather than 6 as approved, with four apartments located on level 1, two apartments on level 2, two apartments on level 3, two apartments on level 4, and a three-bedroom apartment on level 5.

5. Following those inspections, the Council issued two development control orders under the Environmental Planning and Assessment Act 1979 (NSW) (the Act). The first order (the development control order) required the residential use of 6 of the units to cease and the removal of cooking facilities from those units. The second order (the fire safety order) required the removal of combustible cladding from the building which had been identified during the inspections and additional work to address the Council’s fire safety concerns. The applicant initially appealed against both orders. However, on the second day of the hearing the applicant sought, and was granted, leave to amend its Class 1 Application to limit the scope of the appeal to the development control order. The appeal, as finally constituted, (the order appeal) therefore relates only to the development control order. Such an appeal is allowed by s 8.18 of the Act.

6. Prior to the issue of the orders, the applicant made a development application in 2018 (DA347.1/2018) seeking development consent for the conversion of the building to a boarding house. That application was refused by the Council on 27 July 2020. The applicant appeals from that decision (the development appeal). Such an appeal is allowed by s 8.7 of the Act.

7. Both the order appeal and the development appeal were heard together.

The Site and its locality

8. A site view was conducted at the commencement of the hearing. The site is described as Lot 15 Section 2 DP 3035 and is known as 35 Barbara Street Fairfield (the Site). The Site is of a regular shape and has an area of 455m². It is bounded by Harris Lane at the rear.

9. As set out above, the building on the Site is 6-storeys in height and currently contains four apartments located on level 1 (Units 2-5), two apartments on level 2 (Units 6 and 7), two apartments on level 3 (Units 8 and 9), two apartments on level 4 (Units 10 and 11), and a three-bedroom apartment on level 5 (Unit 12). At present, each of the 11 apartments within the building is occupied.

10. The Site is situated on the western edge of the Fairfield town centre and is located approximately 400m from the Fairfield railway station. Two-storey commercial development adjoins the sites to both the north and south.

11. Opposite the Barbara Street frontage to the west is low density residential development, a clinic and a public car park. Land to the east, on the Harris Lane frontage, is commercial with some shop top housing and the heritage listed former Fairfield Fire Station.

The development appeal

12. At the hearing of the appeal, leave was granted to the applicant to amend the development application in accordance with amended plans which were the subject of a Notice of Motion filed on 29 January 2021.

13. As a result of the amendment of the development application and the expert evidence on the appeal, the Council now agrees that all of the contentions in the development appeal have been addressed and that there is nothing that warrants refusal of the development application. Nevertheless, in carrying out the functions of the consent authority, the Court is required to carry out an assessment under s 4.15 of the Act to determine if it is lawful and appropriate to grant consent. The Court must also consider the evidence and submissions of the objectors.

14. For the reasons set out below, we have determined that it is appropriate to grant development consent. The development is permissible in the zone and complies with the relevant development controls. In considering the merits of the application, the concerns of the resident objectors have been adequately addressed through the amended plans and the proposed conditions of development consent, and the proposed development is an appropriate response to the relevant planning controls and the urban context of the Site. We have therefore determined to grant development consent subject to the agreed conditions of consent.

The planning framework

15. The Site is zoned B4 – Mixed Use under the Fairfield Local Environmental Plan 2013 (LEP). Development for the purposes of a boarding house is permitted with development consent on land within that zone. The LEP contains development standards relevant to the site relating to maximum building height (20m) and maximum floor space ratio (2:1). The development complies with each of those development standards.

16. Clause 2.3(2) of the LEP requires the Court to “have regard to the objectives for development in a zone when determining a development application in respect of land within the zone”. The zone objectives for the B4 zone are:

• To provide a mixture of compatible land uses.

• To integrate suitable business, office, residential, retail and other development in accessible locations so as to maximise public transport patronage and encourage walking and cycling.

• To support the development of Bonnyrigg, Prairiewood, Fairfield and Cabramatta as the principal locations for specialist cultural, retail, business, tourist and entertainment facilities and services.

17. We have had regard to those objectives in considering whether to grant consent to the development application.

18. The Fairfield Citywide Development Control Plan 2013 (DCP) also applies. Relevant provisions of the DCP are:

• Clause 7.3.1 – this clause requires development in certain locations to provide active street frontages; and

• Clause 10.7.2 – this clause requires new boarding house development to be designed to reflect the predominant built form and design elements of the surrounding locality and streetscape.

19. The State Environmental Planning Policy (Affordable Rental Housing) 2009 (ARH SEPP) is also relevant. Clause 29(2)(e) of the ARH SEPP provides that a consent authority must not refuse consent to development to which that clause applies if the development provides at least 0.5 parking spaces for each boarding room and not more than 1 parking space for each person employed in connection with the development and who is resident on site. The proposed development complies with this minimum number, and therefore cannot be refused on the basis of car parking.

The proposed development

20. The development application seeks consent for alterations to the building and the change of use to a 14-room boarding house. The application seeks to reconfigure the existing residential apartments on levels 2-5 to create 14 boarding rooms. It does not seek the use of the former commercial unit on level 1 for residential purposes, but instead seeks that it be used as a communal area for the boarding house.

21. The proposed development includes:

• Conversion of the existing retail space on the ground floor to a small manager’s office and study/internet area;

• The removal of the residential apartments on level 1, including the demolition of walls and doors, to create a common lounge area, gymnasium and terrace;

• The demolition of walls and doors on levels 2, 3 and 4 and alterations to create 4 double boarding rooms on each level; and

• The demolition of walls and doors on level 5 and alterations to create 2 double boarding rooms.

22. If approved, the development will comprise a manager’s office and study/internet area on the ground floor, a common lounge area, gymnasium and terrace on level 1, four double boarding rooms on level 2, four double boarding rooms on level 3, four double boarding rooms on level 4 and two double boarding rooms on level 5. Each of the boarding rooms are proposed to contain a bathroom and kitchen area.

Issues raised on the original application

23. In a Statement of Facts and Contentions filed on 28 October 2020, the Council raised a number of grounds on which it contended, at that time, that the application should be refused. Those grounds may be summarised as follows:

1. The proposed development includes encroachments onto public land involving the external cladding and intercom (contention 1).

2. The proposed development does not provide an active commercial or retail street frontage (contention 2).

3. Insufficient information has been provided with regard to materials and finishes, the communal facilities and waste management (contentions 3, 6 and 8).

4. A building information certificate has not been obtained for the unauthorised works in the building (contention 4).

5. There is insufficient car parking to meet the demand of the proposed boarding house (contention 5).

6. A plan of management is required to establish the satisfactory management and operation of the proposed boarding house, the house rules and complaints handling procedures (contention 7).

7. Approval of the application is not in the public interest because of the number of public submissions and for the reasons outlined in the other contentions (contention 9).

24. As a result of the amended plans referred to above and the expert evidence outlined below, the Council now agrees that these matters are resolved.

Evidence of the objectors

25. The proposal was initially notified for a period of 14 days from 2 August 2018 to 16 August 2018. An amended application was further notified for 14 days from 30 August 2019 to 13 September 2019.

26. In total, 6 submissions were received, raising issues concerning the social impacts of low cost accommodation in proximity to the local Centrelink office and a methadone clinic, waste management, fire separation, disabled access, the safety of children using tuition services close to the Site, concerns about increased alcohol and drug use, increased pedestrian traffic and the applicant’s failure to provide a dilapidation report for an adjoining building as required by the previous development consent. The final issue is a compliance issue for the Council rather than a matter relevant to our consideration of the merits of this development application. The remaining issues are either dealt with in the consideration below, or do not warrant refusal of the development application.

Expert evidence of town planners

27. Mr Glenn Apps (engaged by the Council) and Mr Mark Boutros (engaged by the applicant), town planners, conferred and prepared a joint report (Ex 3). Their evidence is that, as a result of the amendments to the application, each of the contentions raised by the Council, other than contentions 4 and 5(v) which are not within their area of expertise, is resolved.

28. Contention 4, which relates to the absence of a building information certificate for the unauthorised building work involved in converting the premises into a boarding house, is the subject of an agreed condition of consent that the Council accepts disposes of the contention. Contention 5(v) concerns compliance with Australian Standard 2890.1:2004 – Parking Facilities (AS 2890.1:2004) and is the subject of expert traffic engineering evidence discussed below.

29. The expert planning evidence on the remaining contentions may be summarised as follows:

1. Contention 1: This contention concerned encroachments on public land. The planners noted that the external cladding had been removed and that the amended plans demonstrated that the intercom had been or would be relocated to be flush with the front façade.

2. Contention 2: This contention related to the need to provide an active street frontage. The planners agreed that the Site is not located in an area in which either the LEP or the DCP requires an active street frontage. Despite this, the planners agreed that there would be benefit in maintaining casual surveillance of the street and that this could be achieved by the use of the area shown on the plans as the manager’s office as a small office/study area for residents. This is depicted in drawing number DA-201 revision D dated 15 January 2021 (Ex 3) and the use of the office in this way is now required by condition 55 of the agreed conditions of consent.

3. Contention 3: This contention concerned built form and appearance. The planners agree that sufficient information about materials and colours has now been provided to enable an assessment to be made of the final appearance of the building in its final modified form. The planners also agree that the proposed finishes are satisfactory.

4. Contention 5: This contention related to car parking. The planners agree that the car parking proposed to be provided is acceptable but defer to the expert traffic engineers on whether the car parking complies with AS 2890.1:2004.

5. Contention 6: This contention concerned the adequacy of communal facilities. The planners agree that the amended plans resolve this contention and that adequate communal facilities will be provided.

6. Contention 7: This contention related to the plan of management for the boarding house. The planners agree that the revised plan of management at Appendix D of their joint report sufficiently addresses all relevant matters. We note that condition 38 of the consent conditions requires the use of the boarding house to be conducted in accordance with the plan of management.

7. Contention 8: This contention concerned waste management. The planners agree that the waste management plan at Appendix E of their joint report and the inclusion of the tap and mechanical ventilation facilities on the ground floor plan sufficiently address all outstanding waste management issues.

8. Contention 9: This contention raised the public interest. The planners agree that the issues of public interest relate to the other specific contentions discussed in their joint report, which are now resolved.

Expert evidence of traffic engineers

30. Mr Paul Corbett (engaged by the Council) and Mr Chris Palmer (engaged by the applicant), traffic engineers, conferred and prepared a joint report in relation to contention 5 - car parking (Ex 4). Their evidence is that, as a result of the amendments to the application, contention 5 is now resolved. They agree that the number of car parking spaces to be provided is adequate and that the car parking spaces now comply with the requirements of AS2890.1:2004.

Development consent should be granted

31. Development for the purposes of a boarding house is permissible with development consent on land within zone B4 – Mixed Use under the LEP. While the fact that a particular use may be permissible is a neutral factor (see Mobil Oil Australia Ltd v Baulkham Hills Shire Council (No 2) (1971) 28 LGRA 374 at 379), planning decisions must generally reflect an assumption that, in some form, development which is consistent with the zoning will be permitted (see BGP Properties Pty Limited v Lake Macquarie City Council (2004) 138 LGERA 237; [2004] NSWLEC 399 at [117]).

32. The site of the proposed development is on the edge of the Fairfield town centre and is within easy walking distance to the Fairfield railway station. Despite the objectors’ concerns, there is no evidence before the Court that the approval of a boarding house in this location will in fact result in adverse social impacts.

33. As set out above, the LEP contains development standards relevant to the Site relating to maximum building height (20m) and maximum floor space ratio (2:1). The development complies with each of those development standards.

34. We accept the evidence of Mr Boutros and Mr Apps that the planning contentions raised by the Council have been resolved by the amended application. Similarly, we accept the evidence of Mr Palmer and Mr Corbett that the car parking to be provided is adequate and complies with the relevant car parking requirements of both the DCP and AS2890.1:2004.

31. We accept that the concerns of the objectors have been adequately addressed through the amended plans and the proposed conditions of development consent. The accessibility issues raised by Condor Designs Pty Ltd are addressed by the imposition of a deferred commencement condition providing that the development consent will not become operative unless and until the applicant provides an accessibility report to the Council prepared by an accredited accessibility consultant demonstrating compliance with the relevant legislative requirements applicable to the development.

32. We therefore find that the development is an appropriate response to the applicable controls, the location of the Site and its urban context. The Council and its experts accept that the amended plans resolve all of the merit contentions and that there is now no contention that warrants the refusal of the application.

33. During the course of the hearing the Council tendered a set of draft conditions. The applicant has indicated that it does not object to those conditions.

Conclusion on development appeal

38. The development application (as amended) should be determined by the grant of consent subject to the agreed conditions in Annexure A. However, we have removed the obligation on the applicant to apply and obtain a building information certificate as a deferred commencement condition. Any issues concerning compliance with the BCA are dealt with in the remaining deferred commencement conditions, and there is no other basis upon which a building information certificate should be required for the purpose of the consent. It is a matter for the applicant to decide whether to apply for such a certificate to prevent the risk of further compliance action by the Council.

The order appeal

39. The present configuration of the 11 residential apartments within the building, and their occupation, is contrary to both the development consent that is in operation (152.1/2011) and the development consent for the use of the building as a boarding house which will eventuate from the outcome of the development appeal.

40. The development control order issued on 5 February 2020, and which is the subject of this appeal, is in the following terms:

“On or before 31 May 2020 you are required to

“1. Cease using the four (4) x residential sole occupancy units at first floor level of the subject premises;

2. Cease using the two (2) x residential sole occupancy units at second floor level of the subject premises;

3. Cease using the one (1) x residential studio unit at fourth floor level of the subject premises;

4. All persons must vacate the first and second floor level sole occupancy units and fourth floor level residential studio unit; and

5. Remove cooking facilities from the following sole occupancy units, to prevent use of these parts of the building until planning approval has been obtained:

a. Four (4) x residential sole occupancy units at first floor level;

b. Two (2) x residential sole occupancy units at second floor level; and

c. One (1) x residential studio unit at fourth floor level.”

41. The development control order was issued pursuant to s 9.34(1) of the Act, which allows a development control order to be given in accordance with the table to Part 1 of Sch 5 to the Act. The development control order relies on Items 1 and 10 of Part 1 of Sch 5. Item 1 allows a development control order, referred to as a “Stop use order”, to be issued to the owner of premises if the premises are being used either “for a purpose for which a planning approval is required but has not been obtained”, or “in contravention of a planning approval”. Item 10 allows an order, referred to as a “restore works order”, to be given to restore premises to the condition in which they were before unlawful building or other works occurred.

42. In hearing and disposing of the appeal, the Court has all of the functions of the Council in determining whether the order should be issued (see s 39 of the Land and Environment Court Act 1979 (the LEC Act)). In addition, s 8.18(4) of the Act sets out the powers of the Court on an appeal against an order. Those powers are as follows:

(4) 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.

43. The issues raised by the Council are set out in the Statement of Facts and Contentions filed by the Council on 6 April 2020 (Ex 7). The contentions raised by the Council concerned both the development control order and the fire safety order; however, as referred to above, the scope of the appeal is now limited to the development control order. Consequently, many of the contentions initially raised by the Council are no longer relevant to the determination of this appeal.

Issues on the appeal

44. The remaining contention concerns the fire safety and structural integrity of the separating walls between the additional dwellings and the infill floor constructed over the former stair voids between levels 1 and 2. The Council contends that there is no evidence that the separating wall and floor construction, which created the additional dwellings, complies with the fire resistance construction requirements of the Building Code of Australia (BCA). It also contends that, with respect to the infill floor over the former stair voids, there is no evidence concerning its structural integrity.

45. The Council contends that this results in a risk to the safety of the residents who are currently living within the residential rooms created by the infill floor and separating walls. The Council also points out that there is no development consent for the use of the commercial unit on level 1 for residential purposes.

Expert building evidence

46. The Council relied on an expert witness report (Ex 5) prepared by its Senior Building Surveyor for Fire Safety and Compliance, Mr Tom Donohoe, who also gave oral evidence at the hearing of the appeal. The applicant did not seek to respond with expert evidence of its own.

47. Mr Donohoe gave evidence that the construction of the internal walls and floors by the applicant, described above, separate Class 2 dwellings which are required by the BCA to achieve prescribed minimum fire resistance levels. His evidence is that this applies to the following building work that has been carried out without approval:

• A new internal wall within the previously approved commercial tenancy on level 1 to create two additional one-bedroom dwellings. The dwellings affected by this work are Units 2 and 3 and the location of the wall is shown circled red in Figure 1 below;

• New infill floors have been constructed in the former stair voids in the approved two-storey dwellings between levels 1 and 2 to create two additional dwellings. The affected dwellings are Units 4, 5, 6 and 7 and the location of the floors is shown circled red in Figures 1 and 2 below;

• A new internal wall has been constructed in the approved dwelling on level 4 to create an additional studio dwelling known as Unit 11. The location of this wall is show circled red in Figure 3.

48. Mr Donohoe’s evidence was that the occupation of the units affected by this building work (Units 2, 3, 4, 5, 6, 7 and 11) should not be permitted to continue until the applicant:

1. provides evidence of suitability certifying that the walls and floors meet the fire resistance requirements and the floors also meet the structural requirements of the BCA; and

2. obtains development consent for the change of use of the level 1 commercial tenancy to residential use.

49. His evidence is that walls and floors that separate dwellings must achieve an appropriate level of construction as determined in accordance with the BCA, to resist the spread of fire within a building and to support imposed loads. Mr Donohoe opines that without any evidence that the fire safety and structural requirements are addressed, the continued occupation of Units 2, 3, 4, 5, 6, 7 and 11 will pose a potential fire and safety risk to occupants of the premises.

50. At the hearing each party proposed alternative orders which they submitted might be made by the Court in lieu of the order the subject of the appeal.

Alternative orders proposed by the applicant

51. The applicant accepts that development consent needs to be obtained to authorise the change of use of the level 1 commercial tenancy to a residential use. However, it disputes the need for the use of the specified units to cease pending the investigation and, if necessary, the carrying out of any necessary remediation work for the internal walls and floors described above in [47]. The applicant proposed an order in the following terms:

“Before the expiry of 42 days:

a)   The owner is to obtain and provide to Council a report from a suitably qualified structural engineer, to be based on physical investigation of the relevant items, addressing:

(i)   Whether all separating floors constructed without approval over former stair voids between levels 1 and 2 meet all structural requirements of the BCA

b)   The owner is to obtain and provide to Council a report from a certified fire safety engineer, to be based on physical investigation of the relevant items, addressing:

(i)   Whether all walls at the premises that are located between dwellings and that have been constructed without a prior approval between dwellings comply with the requisite fire resistance requirements of the BCA

(ii)   All separating floors constructed without approval over former stair voids between levels 1 and 2 meet all structural and fire resistance requirements of the BCA

c)   If either or both of the structural engineering and fire safety reports referred to in items a) and b) state that remediation work is required, the Applicant is to provide the Council with a plan to complete that work which includes:   

(i)   a schedule of the work to be completed;

(ii)   a timetable for completion of the work; and

(iii)   if the work will require that any unit be vacated, information identifying the relevant unit(s)

d)   The owner is to lodge an application for a Building Information Certificate in relation to:   

(i)   all walls at the premises that are located between dwellings and that have been constructed without a prior approval

(ii)   All separating floors constructed without approval over former stair voids between levels 1 and 2

e)   The owner is to lodge an application for development consent for the change of use of the level 1 commercial tenancy to a residential use.”

52. While the applicant concedes that it was appropriate for the structural and fire safety issues identified by the Council to be dealt with in the order, it argues that the Court should not make an order that would, or is likely to, make the residents of a significant number of units homeless. The applicant points out that the Council’s order has been in place for some time and that the applicant has already responded to the order by making the development application the subject of the development appeal, replacing the combustible cladding on the building and rectifying the encroachments onto public land. The applicant says that the making of an order that is likely to make people homeless is a serious matter and something that ought not be done lightly. The applicant submits that the seriousness of making such an order is recognised in the legislation, where cl 2 of Sch 5 of the Act imposes additional obligations concerning the making of such orders.

Alternative orders proposed by the Council

53. The Council’s proposed alternative order, which reflects the expert evidence given by Mr Donohoe, is in the following terms:

“Before the expiry of 28 days:

Use (including occupation) of Units 2, 3, 4, 5, 6, 7 and 11 located at the premises must cease until a Building Information Certificate is issued under Division 6.7 of Environmental Planning and Assessment Act 1979, in relation to the following matters:

a) All walls at the premises that are located between dwellings and that have been constructed without a prior approval between dwellings complies with the requisite fire resistance requirements of the BCA

b) All separating floors constructed without approval over former stair voids between levels 1 and 2 meet all structural and fire resistance requirements of the BCA

And, a development consent has been obtained and is in force for the change of use of the level 1 commercial tenancy to a residential use.”

54. The Council submits that there is a fire and safety risk to residents in circumstances in which the Council does not know whether the walls meet the relevant fire resistance requirements of the BCA and whether the floors meet all the relevant structural and fire resistance requirements of the BCA. The Council says that this risk is sufficient to warrant the vacation of the relevant units. In circumstances where the work was carried out without development consent, the Council submits that the applicant has created an unacceptable risk by continuing to have the apartments occupied and ought not complain that the order is likely to make the residents homeless.

A stop use order should be issued

55. For the reasons that are set out below, we have determined that the statutory basis for a stop use order has been met and that such an order should be issued on the basis that there are potential fire and safety risks to the occupants of 7 of the units. The development control order should therefore be varied so as to be constrained to a stop use order. However, we have determined that orders should also be made pursuant to the Court’s power under s 8.18(4)(f) granting a short stay of the order to allow a building information certificate and development consent to be obtained, and to revoke the stop use order in the event that both are obtained. As set out below, prior to making these orders, further evidence is required concerning whether there is alternative accommodation available for those who would be affected by the order.

The statutory basis for a stop use order is met

56. Pursuant to s 9.34 and Sch 5 of the Act, a stop use order can be issued if the premises are being used either “for a purpose for which a planning approval is required but has not been obtained”, or “in contravention of a planning approval”. We are satisfied, and it was not disputed by the applicant, that building works have been carried out in contravention of the development consent that is in operation (152.1/2011). The result of those works is that the present configuration and use of the building for residential dwellings is in contravention of that planning approval. This means that the premises are being used “in contravention of a planning approval”.

57. Additionally, there is no development consent that authorises occupation of the additional residential apartments created by the unauthorised works, including the residential apartments within the area on level 1 that is approved for a commercial use. There are therefore, within the building, premises that “are being used for a purpose for which a planning approval is required but has not been obtained”.

58. For these two reasons we are satisfied that there is power, in accordance with Item 1 of Part 1 of Sch 5 to the Act, to issue a stop use order to the owner of the building.

A stop use order is appropriate if the works do not comply with the BCA

59. We consider that the Court’s discretion should be exercised to issue a stop use order in circumstances where there is a potential fire and safety risk.

60. We accept the evidence of Mr Donohue concerning the potential fire and safety risk to occupants of Units 2-7 and 11. His uncontested expert opinion is that if the additional walls and floors that were constructed to separate residential apartments do not comply with the fire safety and structural requirements of the BCA, the continued occupation of Units 2, 3, 4, 5, 6, 7 and 11 will pose a potential fire and safety risk to occupants of those units.

61. The potential fire risk posed by this building work needs to be investigated and, if necessary, remedied in a timely fashion. The applicant has been aware of this issue since the filing of the Statement of Facts and Contentions by the Council (and perhaps earlier), and yet there is no evidence before the Court regarding what those investigations will entail. Until those investigations are carried out, it is not known what, if any, remedial works will be required to bring the walls and floors into compliance with the BCA or whether those works can be performed while the affected units are still occupied by their residents. Accordingly, the potential fire and safety risk to the occupants warrants a stop use order to prevent any adverse consequences resulting from a structural failure or the spread of fire between dwellings in the event of a fire.

The order can be stayed to allow the applicant to obtain a building information certificate and development consent

62. We are not satisfied that it is necessary or appropriate for the terms of the stop use order to require a building information certificate or a development consent to be obtained.

63. A building information certificate does not operate to approve unauthorised works. Instead, the effect of a building information certificate is outlined in s 6.25 of the Act, as follows:

…

(2)  A building information certificate is a certificate that states that the council will not make an order or take proceedings referred to in subsections (3) and (4).

(3)  A building information certificate operates to prevent the council—

(a)  from making an order (or taking proceedings for the making of an order or injunction) under this Act or the Local Government Act 1993 requiring the building to be repaired, demolished, altered, added to or rebuilt, and

(b)  from taking civil proceedings in relation to any encroachment by the building onto land vested in or under the control of the council,

in relation to matters existing or occurring before the date of issue of the certificate.

(4)  A building information certificate operates to prevent the council, for a period of 7 years from the date of issue of the certificate—

(a)  from making an order (or taking proceedings for the making of an order or injunction) under this Act or the Local Government Act 1993 requiring the building to be repaired, demolished, altered, added to or rebuilt, and

(b)  from taking civil proceedings in relation to any encroachment by the building onto land vested in or under the control of the council,

in relation to matters arising only from the deterioration of the building as a result solely of fair wear and tear.

(5)  However, a building information certificate does not operate to prevent a council from making a development control order that is a fire safety order or a building product rectification order (within the meaning of the Building Products (Safety) Act 2017).

64. These provisions make it clear that proceedings can still be taken, or a development control order can still be made, requiring the ceasing of an unauthorised use, even if a building information certificate is obtained.

65. Further, Item 1 of the table in Part 1 of Sch 5 of the Act allows an order to be issued requiring the recipient to stop using premises or a building or not to conduct or to stop conducting an activity on the premises. It does not enable an order to be given requiring the making of a development application or an application for a building information certificate.

66. Nevertheless, a stay of the stop use order to allow the applicant an opportunity to obtain a building information certificate and development consent for the use of the residential apartments as built is appropriate. If it is the case that, upon inspection, the applicant is able to provide certification to the Council that all walls constructed without approval to separate dwellings comply with the requisite fire resistance requirements of the BCA, and all separating floors constructed without approval over former stair voids between levels 1 and 2 meet all structural and fire resistance requirements of the BCA, a short stay of a stop use order will allow the building information certificate and development consent to issue. It may be that the appropriate form of the development consent is for a modification to be made to development application 152.1/2011.

64. Given that there a number of units that are now created contrary to the development consent 152.1/2011, we consider that development consent is required for the use of all of the additional residential apartments created by the unauthorised works (Units 2, 3, 4, 5, 6, 7 and 11), and is not just confined to the residential use of Level 1. As this issue was not brought to the parties’ attention at the hearing, the directions at [80] below provide an opportunity for both the Council and the applicant to address the Court in written submissions on this point.

Orders that are likely to result in the occupants needing to find alternative accommodation

68. It is readily apparent that the making of a stop use order is likely to result in the occupants of seven units in the building needing to find alternative accommodation.

69. During the course of the hearing, the Court drew the parties’ attention to the provisions of cl 2 of Sch 5 of the Act which provides that:

(1)  If a development control order will or is likely to have the effect of making a resident homeless, the relevant enforcement authority proposing to give the order must consider whether the resident is able to arrange satisfactory alternative accommodation in the locality.

(2)  If the resident is not able to arrange satisfactory alternative accommodation in the locality, the relevant enforcement authority must provide the resident with—

(a)  information as to the availability of satisfactory alternative accommodation in the locality, and

(b)  any other assistance that the relevant enforcement authority considers appropriate.

70. The Council tendered a letter (Ex 8) sent by the Council to the applicant on 5 February 2020 which it said satisfies cl 2 of Sch 5 of the Act regarding orders that are likely to make residents homeless. That letter relevantly states:

“To assist affected tenants in finding alternative accommodation, please refer them to the following:

• DCJ Housing (NSW Government agency), Ground floor, 360-362 The Horsley Drive, Fairfield NSW 2165 (Ph. 9754 6800);

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We do not agree that providing this information satisfies the obligations imposed by cl 2 of Sch 5 of the Act. If a development control order will, or is likely to, have the effect of making a resident homeless, cl 2(1) imposes a mandatory obligation on the decision maker (in this instance the Court) to consider whether the resident is able to arrange satisfactory alternative accommodation in the locality. As referred to above, any stop use order will require the occupants of seven apartments to vacate their homes either permanently, or while work is carried out to ensure that the walls and floors are BCA compliant. In this regard, the reference in cl 2(1) to making a resident “homeless” seems to us to mean no more than that they will be required to vacate their existing home, rather than that they will be rendered without a home at all. Otherwise the obligation then imposed on the relevant enforcement authority to consider whether the resident is able to arrange satisfactory alternative accommodation in the locality would be nonsensical.

In the present appeal there is no evidence before the Court in relation to whether the residents of any of the seven affected units will be able to arrange satisfactory alternative accommodation in the locality. There may be an abundance of other suitable accommodation in Fairfield or there may not. The Court has no evidence either way.

The letter sent by the Council to the applicant on 5 February 2020 does not assist the Court in considering whether the affected residents will be able to arrange satisfactory alternative accommodation in the locality. The letter contains no information about the availability of other accommodation anywhere.

In those circumstances, on the evidence now before the Court, the Court cannot discharge the obligation imposed by cl 2 of Sch 5 Part 4 of the Act.

As this issue was raised by the Court at the hearing, and was not raised in the applicant’s Statement of Facts and Contentions in Reply, the Council requested that, if the Court was minded to make a stop use order, it be provided with the opportunity to provide evidence to the Court concerning the availability of alternative accommodation in the area. That opportunity is given by way of directions on the order appeal, set out below at [80]. The directions below also require that the Council provide proposed orders, to be made by the Court, for the Council to provide the information required by cl 2(2) of Sch 5 of the Act, in the event that we consider it necessary to make such orders.

The likely outcome of the order appeal

76. If the Council is adequately able to provide evidence to enable the Court to consider the matters required by cl 2(1) of Sch 5 of the Act, then we propose to make the following orders:

1. The general order 1 issued by the Council on 5 February 2020 is modified in accordance with order 2 below.

2. Barbara St Pty Ltd is to stop the use of Units 2, 3, 4, 5, 6, 7 and 11 located at 35 Barbara Street, Fairfield, within 14 days of the date that this order takes effect.

3. Order 2 is stayed for a period of 6 weeks.

4. Order 2 is revoked in the event that:

1. A building information certificate is issued under Division 6.7 of Environmental Planning and Assessment Act 1979, in relation to the following matters:

1. All walls at the premises that are located between dwellings and that have been constructed without a prior approval between dwellings complies with the requisite fire resistance requirements of the BCA; and

2. All separating floors constructed without approval over former stair voids between levels 1 and 2 meet all structural and fire resistance requirements of the BCA.

3. and

2. A development consent for the use of Units 2, 3, 4, 5, 6, 7 and 11 is granted.

5. The parties have liberty, to be exercised by way of notice of motion with a supporting affidavit, to apply to vary the period of the stay granted by order 3.

77. The final terms of (4)(b) may change following receipt of the submissions of the parties concerning the issue described above at [67]. Those submissions can be made pursuant to the directions at [80].

78. In proposing to make these orders, there is no time limit intended for proposed order 4, but the stay period of 6 weeks enables order 4 to be completed promptly in the event that the investigations reveal that no work is required and BCA compliance has already been achieved.

Orders

Proceedings 2020/264873

79. The Court orders that:

1. The appeal is upheld.

2. Development application no DA347.1/2018 (as amended on 1 February 2021) for the conversion of an existing mixed-use development to a boarding house comprising 13 boarding rooms, 1 manager’s room, manager’s office, 4 communal areas and at grade parking for 7 vehicles, 3 motorbikes and 3 bicycles at 35 Barbara Street Fairfield, is determined by the grant of consent subject to the conditions in Annexure A.

3. The exhibits are returned, except for exhibits C, D, E, F, 5, 8 and 9.

Proceedings 2020/70514

80. The Court orders that:

1. The respondent is to file and serve evidence that addresses Sch 5 Part 4 cl 2(1) of the Environmental Planning and Assessment Act 1979, proposed orders that require the Council to take the steps set out in cl 2(2), and any final submissions on the final orders by 6 April 2021.

2. The applicant is to file and serve any submissions in reply by 13 April 2021.

3. Pending the making of final orders on the appeal, liberty to restore is granted on 2 days’ notice.

..………………………..

J Gray

Commissioner of the Court

..………………………..

A Bradbury

Acting Commissioner of the Court

Proceedings 2020/264873

Annexure A (240775, pdf)

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Decision last updated: 24 March 2021