Brahmbhatt v City of Sydney Council

[2024] NSWLEC 1743

Land and Environment Court

New South Wales

Medium Neutral Citation:

Brahmbhatt v City of Sydney Council [2024] NSWLEC 1743

Hearing dates:

Conciliation Conference 9 August, 4 September 2024

Date of orders:

20 November 2024

Decision date:

20 November 2024

Jurisdiction:

Class 1

Before:

Byrne AC

Decision:

The Court orders:

(1) The Appeal is upheld;

(2) The Respondent is directed to issue Building Information Certificate No. 2022/102 for the unapproved extension of an existing bedroom and addition of awning at 510 Cleveland Street, Surry Hills NSW within 28 days of the Applicants complying with the Modified Order at Annexure A to remove the wall mounting air conditioning unit and remaining lattice screen, remove the balustrade and installing the new palisade screen in accordance with the Local Heritage Exemption at Annexure B granted by the Council.

(3) Each party pays its own costs of the proceedings.

Catchwords:

APPEAL – Building Information Certificate – removal of unapproved building items - local heritage exemption granted - conciliation conference - agreement between the parties – building compliance matter - orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 6.2, 6.3, 6.25, 8.25

Land and Environment Court Act 1979, ss 17, 34, 39

State Environmental Planning Policy (Housing) 2021, s 67

Sydney Local Environmental Plan 2012, Pt 2, 4.4, 5.10, Sch 5

Texts Cited:

Sydney Development Control Plan

Building Code of Australia

Category:

Principal judgment

Parties:

Rajesh Brahmbhatt (Applicant)
Sheela Brahmbhatt (Second Applicant)
City of Sydney Council (Respondent)

Representation:

Counsel:
S Miller (solicitor) (Applicant)
A Simpson (solicitor) (Respondent)

Solicitors:
Sparke Helmore Lawyers (Applicant)
City of Sydney Council (Respondent)

File Number(s):

2024/51991

Publication restriction:

No

Judgment

1. COMMISSIONER: This is a Class 1 Miscellaneous Appeal pursuant to s 8.25(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) and s 17(d) of the Land and Environment Act 1979 (LEC Act) from the refusal of a Building Information Certificate (BIC) by the City of Sydney Council (the Council).

2. The building the subject of this appeal is located on land legally described as Lot 1 DP177922, known as 510 Cleveland Street, Surry Hills NSW (Land).

3. The Land is owned by Udichi Pty Ltd (Udichi) and the applicants are directors of Udichi. Udichi has provided written consent to the Applicants to lodge the BIC Application.

4. The Land is zoned MU1 Mixed Use under the Sydney Local Environmental Plan 2012 (SLEP). Co-living housing is permissible with development consent under s 67 of the State Environmental Planning Policy (Housing) 2021) (Housing SEPP) as “shop top housing” is permissible with consent in the MU1 zone under the LEP.

5. The existing building is approved to be used for a boarding house/hostel accommodation under development consent HBC/2020/89.

Background to the appeal

6. The following works have been carried out on the building on the Land (by a previous tenant) without development consent:

1. the construction of an internal wall on the ground floor of the building;

2. extension to an existing bedroom on the first floor;

3. installation of an air conditioning unit;

4. the construction of a new downpipe from the bedroom roof to the first floor gutter;

5. the construction of a new awning on the first floor; and

6. the erection of a privacy screen on the first floor.

7. On 24 June 2020, Council issued a Development Control Order (DCO) under Division 9.3, Schedule 5, Part 1 of the EPA Act to Udichi as owner of the Land. The DCO required Udichi to demolish the works carried out by the previous tenant (excluding the internal wall on the ground floor), as follows:

Terms:

To demolish buildings being a) the new bedroom addition, b) the new awning and c) the new privacy screen, at the first floor terrace area within the premises at Lot 1, DP 177922, 510 Cleveland Street Surry Hills, Postcode 2010 in accordance with AS2601 – 2001 The Demolition of Structures.

8. On 21 October 2022, the Applicants lodged building information certificate application No. 2022/102 (BIC Application) with the Council in accordance with ss 6.22 and 6.23 of the EPA Act and s 289 of the Environmental Planning and Assessment Regulation 2021.

9. The BIC Application does not seek a building information certificate for all the works that have been carried out. The BIC Application applies only to the following works on the building:

1. the internal wall on the ground floor of the building;

2. the extension to an existing bedroom on the first floor including a downpipe to drain stormwater, and

3. the new awning on the first floor.

BIC determination - Unauthorised Works

10. On 10 August 2023 the Respondent determined the BIC Application by refusing it pursuant to s 6.25(1) of the EPA Act. The reasons for refusal were:

1. The solution with the new downpipe coming down from the new extension to the lower gutter is inadequate. The amount of water will probably overflow the gutter.

2. The infill of the upper-level void is not supported, as the resultant form has internalized bedrooms in the approved layout.

3. The awning is set against an existing window, and the awning is not supported.

4. The subject bedroom extension and awning alter the built form of the premise in a manner which is detrimental to the Bourke Street South heritage conservation area.

5. The subject works are not supported as the works result in a loss of amenity to the existing building and do not comply with the objectives and provisions of Section 4.4 Floor Space Ratio of the SLEP 2012 and Section 3.9.7 (Heritage – Contributory Buildings) of the SDCP 2012.

11. On 9 February 2024 the Applicants filed in the Court this appeal against the refusal of the BIC Application pursuant to s 8.25(1) of the EPA Act.

12. On 10 July 2024 the Respondent issued a modified development control order (Modified Order) that removed the requirement to demolish the works identified in the Order and replaced it with the following:

To demolish buildings, being the lattice screen and wall mount air-conditioning unit, on level one western side of the premises that both are facing Ridge Place SURRY HILLS.

A copy of the Modified Order is attached and marked Annexure A to this judgment.

13. On 2 August 2024 the First Applicant executed the Modified Order on behalf of Udichi.

14. The Applicants have partially removed the lattice screen and agree to remove the wall mount air conditioning unit and remaining lattice screen by 4 October 2024. Council has agreed to grant an extension to the date for compliance with the Modified Order to 4 October 2024.

Local Heritage Exemption

15. On 9 August 2024 the First Applicant applied to Council for a local heritage exemption (reference HWC/2024/228) to replace the existing balustrading and lattice fencing with a palisade screen.

16. On 16 August 2024 Council granted the local heritage exemption for the following works:

1. Remove existing unsightly balustrade/fencing structures;

2. Install palisade privacy screen in accordance with the attached stamped plans.

17. A copy of the Local Heritage Exemption is attached and marked Annexure B.

18. The Applicants agree to remove the balustrade and erect the new palisade screen in accordance with the local heritage exemption by 4 October 2024.

Conciliation Conference

19. The Court arranged a conciliation conference under s 34(1) of the LEC Act between the parties, which was held on site on 4 September 2024 and at Court.

20. Following the conciliation conference the parties reached an agreement as to the terms of a decision in the proceedings that would be acceptable to the parties, being a decision that the Court could have made in the proper exercise of its functions. The terms of the agreement are set out above.

21. I am required under s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties’ decision which involves the Court exercising the function under s 8.25(3) of the EPA Act to make an order with respect to the subject matter of the appeal.

Satisfaction as to Jurisdiction

22. There are jurisdictional pre-requisites which require my satisfaction before the power to make an order under s 8.25(3) of the EPA Act can be exercised by the Court. The parties agreed Jurisdictional Statement (the Statement) dated 13 September 2024 provided to the Court assisted in this regard.

23. Regarding jurisdiction and taking into account the parties advice in the Statement, I am satisfied in regard to the following relevant matters.

Local Heritage Exemption

24. The Land is part of the Bourke Street South Heritage Conservation Area identified on the Heritage Map (Map Reference C60) and under Part 2 of Schedule 5 of the SLEP.

25. The building on the Land is not a heritage item. The building is identified as a Contributing building on the Building Contributions Map (Sheet 016) under the SDCP.

26. The Unauthorised Works comply with Section 3.9.7 Heritage – Contributory Buildings of the SDCP because the alterations do not alter the appearance of the façade of the building, and use appropriate materials, finishes and colours for the building.

27. Under s 5.10(3) of the SLEP, works can be undertaken to a heritage listed building or a building within a conservation area without development consent, subject to a written exemption being given by Council. This is where works are minor or maintain the heritage item and will not adversely affect the heritage significance of the heritage item or conservation area.

Power of the Court to make orders in accordance with the Section 34 Agreement

28. The Court’s power to make the orders is of a broad compass. The appeal was made under s 8.25(1) of the EPA Act. Section 8.25(3) of the EPA Act provides as follows:

(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.

29. Section 39(2) of the LEC Act also gives the Court all the functions and discretions of the decision maker, in this case the Council.

30. The parties have reached an agreement as to the terms of a decision under s 34 of the LEC Act.

31. The agreement of the parties is that it is appropriate for the building information certificate to be issued in circumstances where:

1. The Modified Order will be complied with,

2. A new privacy screen will be erected in accordance with a written exemption provided by Council under cl 5.10(3) of the LEP,

3. The works to be retained (which are the Unauthorised Works) are otherwise the subject of the BIC Application,

4. An inspection of the Unauthorised Works has been carried out and a Structural Certificate has been issued confirming that the Unauthorised Works have been caried out in accordance with the Building Code of Australia and relevant Australian Standards, and

5. The Unauthorised Works do not give rise to any reason to refuse to issue a building information certificate under s 8.25(1) of the EPA Act.

Conclusion

32. Taking into account the Statement which I accept, the evidence before me, my observations on site and oral submissions made to me on site, I am satisfied that there is no jurisdictional impediment to the Court making the proposed orders.

33. As the parties’ decision is a decision that the Court could have made in the proper exercise of its functions, I make the following orders.

Orders

34. The Court orders that:

1. The appeal is upheld;

2. The Respondent is directed to issue Building Information Certificate No. 2022/102 for the unapproved extension of an existing bedroom and addition of awning at 510 Cleveland Street, Surry Hills NSW within 28 days of the Applicants complying with the Modified Order at Annexure A to remove the wall mounting air conditioning unit and remaining lattice screen, remove the balustrade and installing the new palisade screen in accordance with the Local Heritage Exemption at Annexure B granted by the Council;

3. Each party pays its own costs of the proceedings.

L Byrne

Acting Commissioner of the Court 

Annexure A 

Annexure B

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Decision last updated: 20 November 2024