Bellagio Investments Pty Ltd v Fairfield City Council

[2022] NSWLEC 1113

Land and Environment Court

New South Wales

Medium Neutral Citation:

Bellagio Investments Pty Ltd v Fairfield City Council [2022] NSWLEC 1113

Hearing dates:

25 February 2022

Date of orders:

3 March 2022

Decision date:

03 March 2022

Jurisdiction:

Class 1

Before:

O’Neill C

Decision:

See Orders below at [26]-[28].

Catchwords:

BUILDING INFORMATION CERTIFICATES – development without consent – six dwellings – BASIX affected development – non-compliance with the Building Code of Australia – non-compliance with the floor space ratio development standard and planning controls – inadequate stormwater disposal

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 6.33, 8.25 and Div 6.7

Environmental Planning and Assessment Regulation 2000, cl 136A

Environmental Planning and Assessment (Development Certification and Fire Safety) Regulation 2021, Pt 8, cl 19

Fairfield Local Environmental Plan 2013, cl 4.4

Land and Environment Court Act 1979, s 34

State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004, cl 6

Cases Cited:

Fairfield City Council v Oztech Developments Pty Ltd; Fairfield City Council v Bellagio Investments Pty Ltd [2021] NSWLEC 81

Texts Cited:

Building Code of Australia

Category:

Principal judgment

Parties:

Bellagio Investments Pty Ltd (Applicant)
Fairfield City Council (Respondent)

Representation:

Counsel:
J Hosn (Self-represented) (Applicant)
S. Shneider (Solicitor) (Respondent)

Solicitors:
Houston Dearn O’Connor Lawyers (Respondent)

File Number(s):

2021/207043, 2021/212700 and 2021/212702

Publication restriction:

No

Judgment

1. COMMISSIONER: These are three appeals pursuant to the provisions of s 8.25(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal of three building information certificate (BIC) applications; BIC Application No. 92.1/2020 (2021/207043), BIC Application No. 93.1/2020 (2021/212700) and BIC Application No. 94.1/2020 (2021/212702). The three BIC applications, made pursuant to Div 6.7 of the EPA Act, are for six dwellings (the development) at 44 Cathcart Street, Fairfield (the site). The BIC Applications were refused by Fairfield City Council (the Council) on 25 January 2021.

2. The appeals were subject to conciliation on 16 November 2021, in accordance with the provisions of s 34 of the Land and Environment Court Act 1979 (LEC Act). As agreement was not reached, the conciliation conference was terminated, pursuant to s 34(4) of the LEC Act.

3. The appeals were heard together. The Court, in the company of the parties, viewed the site at the commencement of the hearing. The hearing was conducted via Microsoft Teams.

Issues

4. The Council’s contentions that the BIC Applications should be refused can be summarised as:

• The two storey dwellings each exceed the maximum floor space ratio (FSR) development standard under the Fairfield Local Environmental Plan 2013 (LEP 2013).

• The two storey dwellings and detached studios each have insufficient private open space and landscaping.

• The two storey dwellings and detached studios each have inadequate stormwater disposal.

• The two storey dwellings and detached studios fail to comply with the Part 3.7 of the Building Code of Australia (BCA) with respect to fire safety as the required distances are not achieved.

• A certificate of compliance from a qualified structural engineer which examines the existing structures and states that it will be structurally adequate has not been submitted in support of the application.

The site and its context

5. The site is on the north-eastern side of Cathcart Street, between Sackville Street and Hampton Street.

6. The site has a street address of 44 Cathcart Street, Fairfield. The site comprises three lots, Lots 73, 74 and 75, Section 7 in DP 1059, respectively known as 44, 44A and 44B Cathcart Street, Fairfield.

7. Each site has an area of 284.5m².

8. 44A and 44B Cathcart Street contain attached primary dwellings and separate secondary dwellings. 44 Cathcart Street contains a detached primary dwelling and separate secondary dwelling.

9. The locality consists of attached and detached dwelling with a low density residential character.

Background and the development

10. The Council submitted that the Applicant has carried out the development without development consent (Fairfield City Council v Oztech Developments Pty Ltd; Fairfield City Council v Bellagio Investments Pty Ltd [2021] NSWLEC 81).

11. The development was constructed during 2018.

12. Each attached primary dwelling is two storeys and contains a single garage, living areas and five bedrooms. The detached primary dwelling is two storeys and contains a single garage, living areas and four bedrooms. Each secondary dwelling is constructed behind the primary dwelling and consists of a studio with a kitchenette and bathroom, separated from the private open space of the primary dwelling by a fence, with access along the side setback of the primary dwelling. Each secondary dwelling has a dedicated letter box.

Planning framework

13. The Court’s power, in relation to appeals with respect to building information certificates, under s 8.25(3) of the EPA Act, is:

8.25 Appeals with respect to building information certificates (cf previous s 149F)

…

(3) On hearing the appeal, the Court may do any one or more of the following—

(a) direct the council to issue a building information certificate in such terms and on such conditions as the Court thinks fit,

(b) revoke, alter or confirm a notice to supply information,

(c) make any other order that it considers appropriate.

14. The site is zoned R2 Low Density Residential under the LEP 2013. Attached dwellings and dwelling houses are permissible with consent in the R2 zone.

15. The FSR development standard for the site is 0.45:1 (cl 4.4 and Floor Space Ratio Map - Sheet FSR_016 of LEP 2013).

16. The development is BASIX affected development within the meaning of cl 6 of State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 (SEPP BASIX).

17. The provisions requiring inspections of building work, pursuant to s 6.33(1)(g) of the EPA Act, are contained under Pt 8 of the Environmental Planning and Assessment (Development Certification and Fire Safety) Regulation 2021 (EPA Certification and Fire Safety Reg).

18. The standards for acceptable construction are contained in Part 3 of the BCA. The standards for fire safety are contained in Part 3.7 of the BCA. A construction certificate or CDC must not be issued by a certifier unless the building work will comply with the BCA (cl 19(1)(c) of EPA Certification and Fire Safety Reg and cl 136A(1)(a) of the Environmental Planning and Assessment Regulation 2000).

Expert evidence

19. The Council relied on the expert evidence of Grant Milienou, a Senior Building Surveyor. Mr Milienou’s expert reports were admitted into evidence as Exhibits 4 (Lot 73), 5 (Lot 74) and 6 (Lot 75).

20. The Applicant was directed by the Court on 7 December 2021 as follows:

“On or before 28 January 2022 the applicant is to file and serve a building compliance report and certificates of compliance demonstrating that all buildings and building on the site achieve compliance with the Building Code of Australia (BCA) and if relevant the National Construction Code (NCC). The compliance report and certificate is to address each relevant clause of the BCA and is to demonstrate that the built structure complies with the BCA and if relevant the NCC. The applicant did not tender any evidence, nor did the applicant rely on the evidence of an expert.

21. The Applicant filed on 15 February 2022, certificates, a levy payment receipt, site survey and BASIX certificate in each matter. The Applicant did not seek to tender any documentary evidence or rely on expert evidence.

22. According to Mr Milienou, the works undertaken on the site do not comply with the deemed-to-satisfy provisions of the BCA relating to structural stability, drainage, footings and slabs, timber framing, glazing, fire safety, health and amenity and energy efficient, as detailed in Mr Milienou’s BCA Compliance Reports attached to Exhibits 4, 5 and 6, because the Applicant has failed to provide suitable certification.

23. According to Mr Milienou, the required critical stage inspections were not undertaken and therefore, appropriate construction methods, compliance with the BCA and Australian Standards, and structural adequacy, cannot be verified. The Applicant has failed to provide an appropriate BCA Compliance Report for the non-compliances or any proposed alternative solutions.

24. Mr Milienou made the following observations regarding the Applicant’s information and certificates provided for the development (Exhibits 4, 5 and 6):

“1. A survey for the completed structures has not been provided and therefore compliance with Part 3.7 of the BCA cannot be determined. The peg out survey completed by RGM property Surveys dated 12 July 2018 was undertaken prior to any building works being constructed.

2. The architectural plans provided by Innovative plans dated 27 December 2017 were drafted prior to construction and are not as constructed plans. As constructed plans are required to enable a thorough assessment of the building with respect to the BCA and relevant planning legislation.

3. The structural engineering design certificate by George Azzi of GHA Engineering dated December 2017 does not provide the following information:

• A company letterhead

• An accurate description of the development

• Any reference to the structural plans (documented above) which are unsigned and not authorised

4. The structural engineering compliance certificate by George Azzi of GHA Engineering dated 12 November 2021, does not provide the following information, which is necessary to satisfy relevant parts of Section 4 of the environmental Planning & Assessment (Development Certification & Fire Safety) Regulation 2021 and the BCA evidence of suitability:

• A company letterhead

• An accurate description of the development

• The description of work that was inspected, how the work was inspected and the date and time at which the work was inspected

• A statement that the inspected work complies with the Building Code of Australia and the relevant Australian Standards, and that clearly states which Parts of the BCA and Australian Standards achieve compliance

• Reference to any structural plans, drawing numbers and dates of issue

5. The balustrade and handrails compliance certificate by Sam Obeid dated 18 January 2019 does not contain the following information to satisfy the BCA evidence of suitability:

• A company letterhead

• Details of the author’s qualifications

• An accurate description of the development

• The description of work that was installed and inspected, how the work was inspected and the date and time at which the work was installed and inspected

• A signature from the author

6. The wet area waterproofing compliance certificate by Andre El-Cheikha dated 18 December 2018 does not provide the following information, which is necessary to satisfy relevant parts of Section [sic] 4 of the Environmental Planning & Assessment (Development Certificate and Fire Safety) Regulation 2021 and the BCA evidence of suitability:

• A company letterhead

• Details of the author’s qualifications

• The date and time at which the work was installed and inspected

7. The building sealing compliance certificate by Joseph Hosn dated 20 January 2019 does not contain the following information to satisfy the BCA evidence of suitability:

• A company letterhead

• Details of the author’s qualifications

• An accurate description of the development

• The description of how the work was inspected and the date and time at which the work was installed and inspected

8. The concrete & reinforcing compliance certificate by Joseph Hosn dated 20 January 2019 does not provide the following information, which is necessary to satisfy relevant parts of Section [sic] 4 of the Environmental Planning & Assessment (Development Certificate and Fire Safety) Regulation 2021 and the BCA evidence of suitability:

• A company letterhead

• Details of the author’s qualifications

• An accurate description of the development

• The description of work that was inspected, how the work was inspected and date and time at which the work was inspected

• Reference to any structural plans, drawing numbers and dates of issue

9. The electrical services compliance certificate by Serg Sakr dated 18 January 2019 does not contain the following information to satisfy the of the BCA evidence of suitability:

• A company letterhead

• Details of the author’s qualifications

• An accurate description of the development

• The description of work that was installed and inspected, how the work was installed and inspected and date and time at which the work was installed and inspected

10. The energy efficiency insulation compliance certificate by Joseph Hosn dated 20 January 2019 does not contain the following information to satisfy the BCA evidence of suitability:

• A company letterhead

• Details of the author’s qualifications

An accurate description of the development

• The description of work that was installed and inspected, how the work was installed and inspected and date and time at which the work was installed inspected

11. The gas services compliance certificate by Joseph Hosn dated 20 January 2019 does not contain the following information to satisfy the BCA evidence of suitability:

• A company letterhead

• Details of the author’s qualifications

• An accurate description of the development

• The description of work that was installed and inspected, how the work was installed inspected and date and time at which the work was installed and inspected

12. The balustrades glazing compliance certificate by Joseph Hosn dated 20 January 2019 does not contain the following information to satisfy the the BCA evidence of suitability:

• A company letterhead

• Details of the author’s qualifications

• An accurate description of the development

• The description of work that was installed and inspected, how the work was installed and inspected and date and time at which the work was installed and inspected

13. The glazing external compliance certificate by Ramy Haddad dated 20 January 2019 does not contain the following information to satisfy the BCA evidence of suitability:

• A company letterhead

• Details of the author’s qualifications

• An accurate description of the development

• The description of work that was installed and inspected, how the work was installed and inspected and date and time at which the work was installed and inspected

14. The shower screen glazing compliance certificate by Patrick El-Heou dated 18 January 2019 does not contain the following information to satisfy the BCA evidence of suitability:

• A company letterhead

• Details of the author’s qualifications

• An accurate description of the development

• The description of work that was installed and inspected, how the work was installed and inspected and date and time at which the work was installed and inspected

15. The plumbing services compliance certificate by Joseph Hosn dated 20 January 2019 does not contain the following information to satisfy the BCA evidence of suitability:

• A company letterhead

• Details of the author’s qualifications

• An accurate description of the development

• The description of work that was inspected, how the work was inspected and date and time at which the work was inspected

16. The roof coverage compliance certificate by Theo Vlattas dated 19 January 2019 does not contain the following information to satisfy the BCA evidence of suitability:

• A company letterhead

• Details of the author’s qualifications

• An accurate description of the development

• The description of work that was installed and inspected, how the work was installed and inspected and date and time at which the work was installed and inspected

• A signature from the author

17. The salinity compliance certificate by Joseph Hosn dated 20 January 2019 does not contain the following information to satisfy the BCA evidence of suitability:

• A company letterhead

• Details of the author’s qualifications

• An accurate description of the development

• The description of work that was installed and inspected, how the work was installed and inspected and date and time at which the work was installed and inspected

18. The smoke alarm compliance certificate by Serg Sakr dated 20 January 2019 does not contain the following information to satisfy the BCA evidence of suitability:

• A company letterhead

• Details of the author’s qualifications

• An accurate description of the development

• The description of work that was installed and inspected, how the work was inspected and date and time at which the work was installed and inspected

19. The stormwater drainage compliance certificate by Joseph Hosn dated 20 January 2019 does not provide the following information which is necessary to satisfy relevant parts of Section [sic] 4 of the Environmental Planning & Assessment (Development Certification & Fire Safety) Regulation 2021 and the BCA evidence of suitability:

• A company letterhead

• Details of the author’s qualifications

• An accurate description of the development

• The description of work that was installed and inspected, how the work was inspected and date and time at which the work was installed and inspected

20. The Basix compliance certificate by Joseph Hosn dated 20 January 2019 does not contain the following information to satisfy the BCA evidence of suitability:

• A company letterhead

• Details of the author’s qualifications

• An accurate description of the development

• The description of work that was installed and inspected, how the work was inspected and date and time at which the work was installed and inspected

21. The termite certificate provided by Louie Elias from Pestrol dated 27 July 2018 is considered appropriate and satisfies the BCA evidence of suitability.

22. The certificates and documents identified 4 to 19 above have been produced using the same layout, heading, structure, font, working and date range. In addition, there are no company letterheads and the signatures have been scanned and added to the document.

These similarities suggest that the certificates and documents have been produced by the same person and raises concerns to the authenticity of these certificates.

23. I have not sighted any certification of the fire-separating wall.

24. I have not sighted any works-as-executed plans for the stormwater system.

25. I have not sighted any certification to demonstrate that compliance with Section 44 of the Sydney Water Act 1994 has been achieved.”

Consideration

25. I accept Mr Milienou’s uncontested expert evidence, and on the basis of all of the evidence before me, I am satisfied that the Council’s contentions are made out and the BIC Applications should be refused.

Orders

26. The orders of the Court in the 2021/207043 matter are:

1. The appeal is dismissed.

2. Building Information Certificate Application No. 92.1/2020 is refused.

3. The exhibits, other than Exhibit 1, are returned.

27. The orders of the Court in the 2021/212700 matter are:

1. The appeal is dismissed.

2. Building Information Certificate Application No. 93.1/2020 is refused.

3. The exhibits, other than Exhibit 2, are returned.

28. The orders of the Court in the 2021/212702 matter are:

1. The appeal is dismissed.

2. Building Information Certificate Application No. 94.1/2020 is refused.

3. The exhibits, other than Exhibit 3, are returned.

____________

Susan O’Neill

Commissioner of the Court

**********

Decision last updated: 03 March 2022