Baxter v Canterbury City Council

[2009] NSWLEC 1078

Land and Environment Court

of New South Wales

CITATION:

Baxter v Canterbury City Council [2009] NSWLEC 1078

PARTIES:

APPLICANT
Jack Baxter

RESPONDENT
Canterbury City Council

FILE NUMBER(S):

11053 of 2008

CORAM:

Hussey C

KEY ISSUES:

SECTION 121B ORDER :- Cease use of outbuilding

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979

DATES OF HEARING:

27/02/09

EX TEMPORE JUDGMENT DATE:

27 February 2009

LEGAL REPRESENTATIVES:

APPLICANT
Mr B. Bridges, solicitor
of Wesley Mission

RESPONDENT
Mr P. Jackson, solicitor
of Pikes Lawyers

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Hussey C

27 February 2009

11053 of 2008 Jack Baxter v Canterbury City Council

JUDGMENT

1 This appeal arises from a s 121B Order Number 1, in respect of the use of an outbuilding at 118 Chapel Street, Kingsgrove. The order required the owner:

“… to cease using or permit the use of the detached garage located adjacent to the northern boundary at the rear of the subject premises as a habitable room.

The outbuilding must be reinstated to its original use as a garage so that it is capable of being used for the parking of a motor vehicle and ancillary storage of domestic items.

The garage must not be used for habitable purposes ”.

2 A period of 14 days from the date of the Order of 9 October 2008 was allowed. Subsequent to this, there has been various communications between the parties resulting in some clarification on the nature of the building. Council now understands this is better characterised as an external room rather than a garage.

3 The property owner has also provided details of the use and occupation of the rooms since purchasing the property in 1954. The property owner has also submitted that the use of the room for habitable purposes is essential to enable Mr John Baxter to care for his frail parents who reside in the existing front dwelling. Also, Mr John Baxter expects that his two children will shortly require accommodation with him in the outbuilding.

4 After council’s further inspection of the building, the council officers determined various unsatisfactory health and safety aspects. In particular, Mr Liddle, council’s development assessment and building officer, in his affidavit provided the following detailed description of the building and the way it is built:

3.1 The outbuilding is a single storey building which has the appearance of a garage. It is of single skin masonary construction with engaged piers and tiled roof.
3.2 The outbuilding is located to the rear of the premises and is set back approximately 900mm to 1m from the side (northern) and rear (eastern) boundaries.
3.3 The northern and southern elevations of the building contain a window while the western elevation consists of two timber garage doors. The doors are covered with blue plastic material.
3.4 The outbuilding contains a bed and a living area including table, chairs and a bookshelf.
3.5 There is one door to the bedroom/living area with a separate door to the rear section of the outbuilding which contains laundry facilities and a WC.
3.6 The outbuilding does not have any internal lining on any of the internal walls nor is there a ceiling within the outbuilding.

5 In part 4 of his assessment report he identified the following 4 items that required essential upgrading:

4.1 The timber garage doors to the western elevation of the structure need to be removed and replaced with suitable construction such as double brick or replaced with suitable construction such as double brick or brick veneer so as to satisfy the energy efficiency, health and fire safety provisions of the BCA.
4.2 The installation of a ceiling to satisfy the energy efficiency, health and fire safety provisions of the BCA and associated insulation to meet the requirement of Basix.
4.3 The provision of one hard wired smoke detector to satisfy fire safety provisions of the BCA.
4.4 The provision of an internal veneer wall on the inside of the structure to satisfy the energy efficiency, health and fire safety provisions of the BCA.

6 The parties have discussed these matters further and agreed to consent orders that enables the use of the outbuilding on a temporary basis for 6 months, subject to essential upgrading works being taken, particularly the installation of a fire alarm.

Conclusion

7 My conclusion is that having considered the evidence and the submissions, I am satisfied that the agreed revised orders represent a reasonable short-term compromise. It allows Mr John Baxter to reside in the outbuilding in the proximity to his parents and perform his carer’s role. It also provides apparently essential accommodation for his family.

8 However, from the evidence presented, it appears to me that this accommodation is sub-standard in terms of health and safety requirements and it is unfortunate that safe, convenient, alternative accommodation is apparently not available.

9 Therefore, I accept the orders are only for short-term accommodation, unless a satisfactory development consent is granted for longer term use. Notwithstanding this, the short-term is a temporary use. I agree that the installation of the fire warning systems is essential. Whilst there are costs associated with this, nevertheless I consider both the private and public interests are addressed to some extent by this requirement to install the warning systems within the shorter timeframe of 14 days.

Court orders

10 In the circumstances then, the Court makes the following consent orders:

1. The order dated 9 October 2008 issued to Mr Jack Baxter may be modified in accordance with the modified order dated 27 February 2009 which is exhibit 5 in the proceedings – Attachment A.
2. The fourteen-day (14) time period referred to in the Modified Order be stayed for a period of six (6) months from the date of this Order on the following basis;
2.1 The applicant shall install one hard wired smoke detector in the living area of the outbuilding in accordance with AS3786 within seven days of the date of this order. The installation of the smoke detector shall be carried out by a licensed electrician and a Certificate of Compliance be provided to council on the completion of the installation.

3. The exhibits to be returned except for 1, 2, 5 and D.

___________________

R Hussey
Commissioner of the Court
ljr

Attachment ‘A’

Conditions of Consent

MODIFIED ORDER

Premises: 118 Chapel Street, Kingsgrove

Being Lot 3 in DP 21557

ORDER NO. 1

Environmental Planning and Assessment Act 1979

Section 121B

Details of the Order

Council orders you to cease using or permit the use of the outbuilding located adjacent to the northern boundary at the rear of the subject premises as a habitable room.

The outbuilding must be used as either a garage, for the parking of a motor vehicle and/or for ancillary storage of domestic items.

The outbuilding must not be used for habitable purposes, and the bed in the outbuilding must be removed.

Compliance Date

This order must be complied within 14 days from the date of this modified order.

Reasons for the Order

The reasons for the making of this order are that:

(a) The outbuilding is being used as a habitable room for which development consent is required but has not been obtained.

(b) The outbuilding is or is likely to be inadequate for the purpose of complying with the health and amenity and/or acceptable construction standards for class 1 and 2 residential buildings under the Building Code of Australia.

Dated: 27 February 2009