Bursill v Inner West Council

[2016] NSWLEC 1392

Land and Environment Court

New South Wales

Medium Neutral Citation:	Bursill v Inner West Council [2016] NSWLEC 1392
Hearing dates:	31 August 2016, written submissions filed 2 September 2016
Date of orders:	07 September 2016
Decision date:	07 September 2016
Jurisdiction:	Class 1
Before:	Morris C
Decision:	Appeal upheld
Catchwords:	Order, boundary location, whether works are required for fire rating
Category:	Principal judgment
Parties:	Sally Bursill (Applicant)   Inner West Council (Respondent)
Representation:	Ms S Bursill Litigant in person Solicitors: Ms J Blunden, Inner West Council (Respondent)
File Number(s):	150326/2016

Judgment

1. Marrickville Council, now Inner West Council, issued Order 13 under the provisions of Section 121B of the Environmental Planning and Assessment Act 1979 (EP&AAct) to the owner of property No 49 Barwon Park Road, St Peters (site), Ms S Bursill, the applicant in these proceedings who is appealing the provisions of that order. The appeal was filed on 20 October 2015 and has been the subject of a conciliation conference however no agreement was reached and the conference terminated.

The site and its context

2. The site is located on the western side of Barwon Park Road and contains a single storey dwelling house which is erected to the side boundaries. The issue of the precise location of the boundary to the north of the site is addressed below.

3. It is legally described as Lot 1 in DP 209038. Lots 1 and 2 in that deposited plan were subdivided from CT Vol 3235 Fol 116 and registered on 30 April 1968. At that time, similarly sized dwellings existed on both Lots. Lot 2 is known as No 51 Barwon Park Road. The dwelling at No 51 has since been demolished.

4. From the survey and deposited plans filed with the application, the front section of the dwelling house with front and rear verandahs in some form and a separate WC existed in 1909 and rear additions constructed some time after 1968 and prior to 20 November 2001.

5. It adjoins two dwelling houses which are also erected to the boundary. No 47 Barwon Park Road (No 47) is also a single storey dwelling and No 51 contains a modern two storey dwelling house.

6. The site is opposite Sydney Park with a number of industrial premises located to the north of the site with a mix of residential dwellings.

The Order

7. The council issued Order 13 on 21 September 2015. The Order requires:

1. Lodge a Development Application with Council for a subsequent, compliant fire rated wall adjacent to 47 Barwon Park Road, St Peters, ensuring the proposed works are not encroaching onto the neighbouring premises. You will need to submit the following information with your Development Application:

1. One (1) copy of a site plan (scale of 1:200)

2. Six (6) copies of notification plans (scale of 1:100)

3. Elevations (scale of 1:200)

4. A floor plan (scale of 1:200)

5. Section through the building

6. Statement of environmental effects

2. Lodge a Building Certificate under section 149A of the Environmental Planning and Assessment Act 1979 for the unauthorised building work that has been conducted.

You will need to submit the following information with your application for a building certificate:

1. An accredited Structural Engineer’s structural report and certification for the built structure, being the structural adequacy and compliance with relevant Australian Standards of the following:

1. All new roof framing

2. All new wall framing

2. A recent surveyor’s report and plan identifying dwelling in relation to the boundaries of the property;

3. Two copies of “Works-as-Executed” architectural details drawn to scale of 1:100 showing the:

1. Floor plan of the dwelling with the areas coloured to highlight the unauthorised alterations

2. Northern, eastern and western elevations of dwelling with the areas coloured to highlight unauthorised alterations

8. A period of sixty days was given for compliance with the Order.

9. The reasons for the Order are:

A site inspection conducted by Council on 16 April and 1 June 2015 has revealed:

1. Sections of the timber-framed wall and roof (to the northern wall of the premises) adjacent to 47 Barwon park Road, St Peters are currently being supported by a dilapidated/unstable wall attached to 47’s water closet (WC). The structural stability of this wall is unstable and poses a significant risk to occupants of your premises and the occupants of the adjoining premises at 47 Barwon Park Road;

2. The timber-framed plasterboard wall, adjacent to 47 Barwon Park Road, St Peters is constructed as an ‘External wall’ of your premises which is not in compliance with Part 3.7.1.5 of The National Construction Code (BCA) Volume 2. See attached plans and photographs;

3. Part 3.7.1.5 of The National Construction Code (Volume 2) details that an ‘External wall’ of a Class 1a Building, that is less than 900mm from a property boundary is required to be fire-resistant, must extend to the underside of a non-combustible roof covering or non-combustible eaves lining and must:

•have a Fire Resistant Level (FRL) of not less than 60/60/60 when tested from the outside; or

•be of masonry/veneer construction in which the external masonry veneer is not less than 90mm thick; or

•be of masonry construction not less than 90mm thick.

As the current external wall is only of a timber-framed wall, internally lined with plasterboard, it is deemed a non-compliant system;

4. The alterations that have been carried out to the building do not qualify as Exempt Development (which is development not requiring approval) under the State’s Environmental Planning Policy (Exempt and Complying Development Codes) 2008 and in this instance would have required Development Consent from Council prior to the works commencing;

5. The alterations are also considered unsafe as they have not had the benefit of a proper environmental assessment nor have they been built with appropriate structural certification.

Order 13

10. Section 121B of the EP&AAct provides for the giving of Orders and is in the following form:

(1) An order may be given to a person by:

(aa) the Minister or the Secretary (but only in connection with a project to which Part 3A applies, in connection with State significant infrastructure or in connection with development for which the Minister or Secretary is or has been the consent authority), or

(a) a council, or

(b) any other person who exercises functions as a consent authority, except in relation to complying development for which a complying development certificate has been issued,

to do or to refrain from doing a thing specified in the following Table if the circumstances specified opposite it in Column 2 of the Table exist and the person comes within the description opposite it in Column 3 of the Table.

11. In that table, Order 13 provides To do such things as are necessary to bring into compliance with relevant development standards any building or part of a building that has been unlawfully erected in circumstances where the Building has been unlawfully erected and does not comply with relevant development standards and is to be served on the owner of the premises.

12. There are a number of tests to be met. Firstly, in this case, the Order must relate to a “part of a building” secondly, it must be shown that it “has been unlawfully erected”, thirdly it must detail “things as are necessary to bring into compliance any part of that building”. Finally, it must be served on the owner of the premises.

The issues

13. The contentions in the case are whether the wall is erected on or within 900mm of the boundary, is structurally adequate and appropriately fire rated. The applicant contends that the council recognised the existence of the wall when it consented to a development application for alterations and additions to the building in 2002 (DA 200200584). That consent authorised ground floor alterations and first floor additions to the dwelling. The extent of works on the ground floor involved the installation of a staircase within the existing living room of the dwelling. A first floor addition was proposed above the original cottage. The plans submitted with the application showed the ground floor of the dwelling as it stands today. It is the applicant’s contention that the consent showed the council was aware of the works at that time and is therefore estopped from taking action in relation to the works.

14. It is common ground that the 2002 consent was not made operative and therefore has no force or effect.

The wall

15. The hearing commenced on site with a view of the three different sections of wall to which the council says the Order applies. Cut outs in the fibre sheeting of the wall and roof had been made and a small light well provided further access to the walls.

16. Whilst not a contention in the case, the location of the wall at the front of the site and its proximity to the boundary will become a relevant factor in determination of the matter. That is the wall that is the northern wall of the original dwelling and is proximate to the boundary with No 47.

17. For the purpose of reference, I adopt the segments as detailed in the Location Plan prepared by the applicant’s architect, Mr Martin and included in page 5 of his expert report, Exhibit C. That plan shows four segments. Segment A to B is the front section of wall described at [12] and is not the subject of the Order.

18. Segment B to C is that section of wall that runs from the rear of the original dwelling along the light well.

19. Segment C to D is the northern wall of the family room against the original outside WC wall. The remainder of a toilet suite exists between the timber framed wall and the brick wall in that location.

20. Segment D to the rear wall of the extension is the third segment. Segments B-D of wall are the subject of the Order.

The boundary

21. The precise location of the wall the subject of the Order is in dispute between the parties. That is because of conflicting surveys that have been obtained over time by previous owners of the site, the applicant and the owners of No 47. In addition, the plans on the various title documents do not adopt the same wording when describing wall locations in relation to the common boundary between the site and No 47.

22. What did become apparent during the hearing is that if the council’s position that the wall of the additions is on the adjoining lot, No 47 then the front wall of the original dwellings may in fact be on No 49, the site.

23. There is no evidence of any reciprocal rights or easements in relation to any section of the walls between Nos 47 and 49.

24. The applicant has sought a boundary determination from with Land and Property Information (LPI) pursuant to the provisions of Part 14A of the Real Property Act 1900.

25. That application was lodged on 28 July 2016 and has not been determined. Accordingly, the parties dispute the location of the boundary and whether the wall is a “party” or common wall.

26. It is the council’s position that the wall from Segment B to the rear of the site is wholly located within No 47 as it says the survey details indicate the southern face of the wall is on the boundary of that lot.

27. Ms Bursill says that at all times the wall has been a common wall and due to the age of the structures is “jointly owned by both properties” and is a party or common wall.

28. It is this “brick wall” that is the main contention in the case together with a timber framed wall that has been erected within the site adjacent to that wall.

The evidence

29. Expert evidence was heard from Mr L Millist (engineer) and Mr L Martin (architect) for the applicant and Mr S Maddigan (building surveyor) for the council. Mr Millist and Mr Maddigan had joint conferenced and prepared a Joint Report, Exhibit 7. Mr Martin did not participate in that conference however prepared a report, Exhibit C.

30. Mr Maddigan and Mr Millist agree that there are obvious discrepancies between surveys and the doubt that exists as to the accuracy of the registered plans and the location of the actual boundary line. They acknowledge the applicant’s request for a boundary determination and agree that when this determination has been issued then boundary and construction compliance can be further considered.

31. Mr Millist says that all the timber stud frame walls from the rear of the kitchen dining room to the transverse exterior masonry wall of the rear bedroom is constructed wholly with (sic) No 49 and inside the separating masonry wall and the original verandah iron clad stud wall that separates No 49 from No 47. The roof rafters of No 49 are contained wholly between the dividing walls and do not load the internal stud wall nor encroach into the neighbouring premises. He says that since construction and subdivision, the two properties are dependent on a common structural dividing wall to provide separation and privacy.

32. Mr Maddigan says the survey reports indicate the masonry wall of No 47 is built up to the southern boundary of that property and does not encroach upon the site. No easements or restrictions are noted on the Surveyor Reports presented by the Applicant.

33. Contention 2, regarding the structural adequacy of a wall attached to No 47’s WC is no longer pressed by the council as the experts agree that a report provided by the owner of that property indicates the wall is structurally sufficient.

34. In relation to the segment of wall, segments B and C, the experts agree that the wall does not comply with the requirement of the National Construction Code (BCA) Volume 2. Ms Bursill has indicated that she would be prepared to rectify this aspect of the works only.

35. The experts disagree as to whether the wall is an external wall and if there is a right to use the “brick wall” to support the transfer beam that bears on a metal bracket attached to that wall. It is however common ground that the “brick wall” is used to support that beam.

36. Mr Millist says the timber wall and roof framing is structurally sound despite conceding in evidence that he had not inspect the footings of the property. He says that buildings of the era typically have brick footings and he expects this is the case however he was unable to satisfy the Court that this is the case.

37. Mr Martin says he saw bricks below the wall, however concedes he is not qualified to give structural evidence.

38. The council concedes the original order it issued had flaws and submitted two alternatives. Those are in Exhibits 8 and 9. The works detailed in Exhibit 8 requires the determination of the application for the boundary determination and the carrying out of work which it says would bring the wall into compliance with the BCA. Exhibit 9 provides for works without the boundary determination to segments B-C and C-D.

Conclusion and findings

39. The parties were directed to file written submissions as the hearing had been set for one day and evidence was heard however no time remained for completion of the matter. Those submissions were filed with the Court on 2 September 2016.

40. Having the benefit of the site view and the evidence provided, it is clear that until such time and the boundary between the site and No 47 is determined it is not possible to determine the extent of work that is required to bring the wall into compliance with the relevant development standards.

41. The applicant had applied to vacate the hearing dates prior to the hearing however I dismissed that Notice of Motion on 23 August 2016. My reasons where that the parties had failed to meet the timetable set in the Short Minutes of Order made on 22 June 2016 and that the applicant should have ensured all of the experts on whom she intended to rely were available for hearing. I determined that the applicant’s surveyor would not be able to assist the Court in determining the location of the boundary as this is now the subject of an application to LPI and may, according to Ms Bursill’s affidavit, take some three months to resolve.

42. Section 121ZK establishes the regime for appeals concerning orders. Pursuant to subsection (4), the Court may revoke, modify or substitute for the order or find the order is sufficiently complied with. It may make such order with respect to compliance or any other order the Court thinks fit.

43. Whilst the power to modify the Order is available to me, I must firstly be satisfied that the Order as issued is one that satisfies the provisions of s121B. I am not so satisfied. As discussed during the hearing, the submission of a development application and application for a building certificate will not achieve the requirements of the requirements of Column 1. That is the submission of those applications will not result in the doing of such things as are necessary to bring into compliance with relevant development standards that part of the wall that the council says is illegally erected.

44. Whilst I accept the council’s evidence that no consent has been granted for the works, I am not satisfied that the Order would give effect to the provisions of Order 13.

45. The lapsed 2002 consent cannot authorise any works constructed as it has no effect. Even if the works are legal other Orders can be issued that address fire safety.

46. Section 121O of the EP&AAct removes the requirement to lodge any application under Part 3A or Part 5.1 for approval or Part 4 for consent to carry out the work that is the subject of an Order.

47. Lodging an application for a Building Certificate will not achieve the requirements of the Order, particularly if the application is refused.

48. For these reasons, I am not satisfied that the Order as made should be modified.

49. Neither party has been able to establish the location of the boundary and whether the wall is a common wall, party wall or wholly contained on the site or on the adjoining property, No 47. What is apparent is that wherever the boundary is located, part of the wall which divides the two properties is on, over or wholly contained within one or the other. It is also common ground that some work is required to bring the wall into compliance.

50. There is however no certainty as to the extent of that work.

51. As the Order issued does not achieve the requirements of Order 13, Section 121B of the EP&AAct and there is no certainty that any alternate order would satisfactorily resolve the matter it is appropriate to dismiss the appeal.

52. Once the boundary is defined, the council and applicant should resolve what work is required and if necessary, issue appropriate Orders if resolution cannot be reached. Depending on the outcome, the council may also need to consider the situation concerning the wall and boundary in relation to No 47.

53. Ms Bursill urged the Court to delay my decision pending resolution of the boundary however I do not consider this to be an appropriate path to follow in the circumstances of the case.

54. The Orders of the Court are:

1. The appeal is upheld.

2. Order No 13 dated 21 September 2015, issued to Ms Sally Evelyn Bursill in relation to property No 49 Barwon Park Road St Peters is revoked.

3. The exhibits, other than exhibits B and 6, are returned.

_____________________

Sue Morris

Commissioner of the Court

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Decision last updated: 07 September 2016