Chami v Lane Cove Council (No 3)

[2015] NSWLEC 144

Land and Environment Court

New South Wales

Medium Neutral Citation:	Chami v Lane Cove Council (No 3) [2015] NSWLEC 144
Hearing dates:	31 August and 1 September 2015
Decision date:	03 September 2015
Jurisdiction:	Class 1
Before:	Moore AJ
Decision:	See directions at [131]
Catchwords:	BUILDING CERTIFICATE APPLICATION – completion of required works – compliance with Building Code of Australia – structural engineering – costs
Legislation Cited:	Environmental Planning and Assessment Act 1979 Environmental Planning and Assessment Regulation 2000 Land and Environment Court Rules 2007 Lane Cove Development Control Plan 2009 Uniform Civil Procedure Rules 2005
Cases Cited:	Briginshaw v Briginshaw [1938] HCA 34; 60 CLR 336 Chami v Lane Cove Council [2015] NSWLEC 1003 Chami v Lane Cove Council (No 2) [2015] NSWLEC 1206 Grant v Kiama Municipal Council [2006] NSWLEC 70 Sutherland Shire Council v Sud [2015] NSWLEC 44
Category:	Principal judgment
Parties:	Sarab Chami (Applicant) Lane Cove Council (Respondent)
Representation:	Counsel: Mr R Ross, agent (Applicant) Mr S Griffiths, solicitor (Respondent)   Solicitors: N/A (Applicant) Pikes and Verekers Lawyers (Respondent)
File Number(s):	10398 of 2014

Contents

Judgment

Introduction

The site inspection

Conclusions to be drawn concerning compliance with the schedule of works

The powder room on the lowest habitable level of the dwelling

The lift well

A possible building certificate application for a lift?

Structural engineering evidence

Resolution of the balcony/streetscape issue

Orders to be attached to the building certificate

Introduction

A general prohibitory condition?

The lift well

Prohibiting a second kitchen

Prohibiting multiple occupancy

Parking in the northern passageway

Use of the undercroft

Enclosure of the undercroft

Costs

Introduction

The first phase hearings

The reopening phase

Proposed costs order

Conclusion

The way forward

Preparation of draft orders and building certificate

Directions

Judgment

Introduction

1. HIS HONOUR: This is the third decision in a series this year concerning construction that has taken place at a dwelling in Northwood – where that construction is significantly different from that which was given approval by Lane Cove Council (the Council). It is unnecessary to set out, in any detail, the history of this building certificate appeal (being an appeal against the refusal by the Council to grant a building certificate for the works as executed). The construction and the site have been the subject of extensive litigation independent of these proceedings – litigation involving Ms Chami, the present owner, to a limited extent, and Mr Ross, the former owner, to a greater extent. Mr Ross appears by leave as Ms Chami's agent in these proceedings.

2. It is sufficient by way of introduction to make several brief observations concerning this building certificate appeal. The first is that, from the beginning, Mr Ross has been granted leave to appear as Ms Chami's agent but, for reasons canvassed in Chami v Lane Cove Council [2015] NSWLEC 1003 (Chami No 1), has not been permitted to give expert evidence on her behalf.

3. Second, in Chami No 1, I set out a range of works that I considered were necessary to be undertaken by Ms Chami (or by Mr Ross – as he had indicated that he would be responsible for further works undertaken on the dwelling). Mr Ross’ relationship with Ms Chami has not required my detailed determination (despite some assertions made by the Council as to its nature) but it is sufficient to note, as was earlier been noted in Chami No 1, that Mr Ross has conceded that his interests and Ms Chami's interests coincide. It is unnecessary, at this point, to set out the schedule of works appended to Chami No 1 as they were subsequently revised as a consequence of Chami v Lane Cove Council (No 2) [2015] NSWLEC 1206 (Chami No 2).

4. Ms Chami subsequently applied (through a somewhat chequered procedural path) for leave to reopen my findings in Chami No 1. That leave was sought concerning three issues. In Chami No 2, I set out why it was appropriate to grant leave to reopen with respect to matters concerning whether or not the balcony at the western end of the uppermost level of the dwelling was structurally adequate to permit compliance with that element of the schedule to Chami No 1 relating to that balcony and to refuse leave with respect to two other matters which, in light of my decision in Chami No 2, do not need to be detailed.

5. I granted leave to reopen with respect to the uppermost western end balcony issue as I was satisfied that, no matter the paucity of the basis upon which that proposition was advanced, questions of private safety (hence giving rise to a more general public interest issue) required that I do so. The analysis supporting my reasons for that conclusion and for my rejection of the other two aspects with respect to which leave was sought are set out in detail in Chami No 2.

6. My decision in Chami No 2, given on 15 June 2015, included two elements that require to be addressed in this phase of the proceedings. They are:

• The directions given on that occasion; and

• The terms of the revised schedule of works appended to that decision – a schedule which no longer incorporated any requirements concerning the balcony with respect to which the application to reopen had been granted.

7. Two further matters are to be observed concerning my decision on 15 June. First, it was made expressly clear in direction (20) that this phase of the hearings was to deal with not only the question of compliance with the requirements of the amended schedule but also to deal with structural engineering matters concerning the balcony for which reopening for further consideration had been granted. A copy of the directions extracted from [87] of my decision of 15 June forms Appendix 1 to this decision.

8. The amended schedule of works which was appended to my decision of 15 June is Appendix 2 to this decision, in the form appended to the 15 June decision. This latter document is reproduced as it is necessary to explain what was observed during the course of the site inspection undertaken on 31 August as part of this phase of the proceedings.

The site inspection

9. When I arrived at the site, I had a short discussion with Mr Ross and Mr Griffiths prior to commencing the inspection. The matters discussed were:

1. A request by Mr Griffiths that a Council officer be permitted to accompany us on the inspection as he had not previously had the opportunity to view the interior of the premises. I refused this request as there was no basis, within the scope of the present phase of the proceedings, to permit such an inspection;

2. A further request by Mr Griffiths that Mr Nash, the Council's town planning consultant in these proceedings, also be permitted to take part in the inspection. I declined this request as the only evidentiary matters that were to be canvassed in this phase of the proceedings that would engage matters of expert opinion were structural engineering ones; and

3. The absence of Mr Natoli, a structural engineer who had prepared a statement filed and served on behalf of Ms Chami. In response to my enquiry of Mr Ross as to why Mr Natoli was not present, he indicated that he had not received any indication from Mr Griffiths that Mr Natoli was required for cross-examination and Mr Ross had, therefore, assumed that Mr Natoli was not required to attend the proceedings. Mr Griffiths confirmed that he did not require Mr Natoli for cross-examination but would be objecting to the tender of the statement (and to matters contained in it if it were to be admitted).

10. We then undertook the inspection of the various matters for which works had been required as set out in the amended schedule of works attached to Chami No 2.

11. During the course of the inspection, we also inspected the balcony at the western end of the uppermost level of the dwelling. During the course of this inspection, the black plastic covering within the “garden bed structure” (photos in Chami No 1 at [498] and [499] – although, at the time of that inspection, the covering was orange plastic) was folded back at a number of edges to reveal that the whole of the area within and without the Blueboard structure had been tiled in limestone tiles.

12. The inference drawn by Craig J in Sutherland Shire Council v Sud [2015] NSWLEC 44 (at [139] and [140]) concerning tiling of a supposedly non-trafficable area in fact being undertaken to render the space usable is, in my assessment, also appropriate to be drawn here. This additional information serves to reinforce the conclusions in Chami No 1 as to:

• The sham nature of the Blueboard structure; and

• The extreme caution with which anything said by Mr Ross needs to be treated absent direct observational support or credible independent evidence.

13. After completion of the inspection, as we were walking back to the roadway, Mr Ross sought to make observations concerning the size and location of balconies on a number of properties in the vicinity. I had Mr Nash join us and listen to Mr Ross repeating his comments so that, should the matter be permitted to be re-agitated in some fashion, Mr Nash was aware of the factual basis upon which Mr Ross would be proceeding.

14. Mr Ross also invited me to observe the size and relative topographic location of balconies on a new dwelling under construction between this site and Northwood Road (when those balcony locations were compared to neighbouring private open space). I observed those balconies during the course of my return walk to the Court’s vehicle which was parked on Northwood Road.

Conclusions to be drawn concerning compliance with the schedule of works

15. I am satisfied that I should regard Ms Chami as having complied fully with the elements of the schedule of works relating to:

1. The passageway gate and brick wall in the northern side passageway of the dwelling;

2. The requirement to brick up the two apertures in the southern wall of the undercroft (whilst permitting the retention of an opening incorporating a standard size domestic door to provide access to the space between the southern wall of the undercroft and the southern boundary of the property) has been satisfied – with the masonry works having been completed and rendered with a single domestic-scale door incorporated in the masonry otherwise blocking one of those openings; and

3. The requirement for filling in the area under the windows in the eastern back end bedrooms with masonry with a rendered finish in lieu of the previous Blueboard construction. Although this has been constructed with a single skin of masonry, I am satisfied, under the circumstances, that I should regard this as compliant with my requirements.

16. With respect to the removal of the kitchen in the north-eastern corner of the lowest habitable level, the site inspection revealed that the works required to be undertaken appeared to have been undertaken. However, there was a provision in the schedule of works that required certification from the plumber and the electrician commissioned to undertake these works with that certification being that the specific requirements for the removal of any water, gas, drainage or electrical cable piping in the walls. Such certification was required to be filed and served by 10 July (subject to a general permission to either party to seek leave to relist the matter). No application to relist to deal with any slippage in compliance with matters set out in the schedule was made by Mr Ross on behalf of Ms Chami.

17. However, with respect to this point, I have concluded that, subject to addressing the inadequacy/absence of the required certification by condition as later discussed, I should regard this work as having been completed sufficiently satisfactorily.

The powder room on the lowest habitable level of the dwelling

18. The requirement concerning the powder room on the lowest habitable level of the dwelling contained in the schedule of works was in the following terms:

The interior of the powder room on the lowest level is to have its fitout (including tiling, painting, electrical connections and like) completed.

19. The requirements for certification of the completion of these works were set out in the schedule as follows:

Any necessary wet area membrane certification.

Certification by a licenced electrician of all electrical installations in the powder room.

20. On Wednesday 26 August, Mr Ross sent an email to the Court which was forwarded to me. That email was in the following terms:

This matter is listed for further mention on 31 Aug 15 commencing with an onsite inspection.

I have been advised that all of the works listed in the conditions have been completed. However an issue has only just arisen in relation to the state of works in the powder room. 

Due to faulty workmanship in relation to mosaic tiling of walls in one section of the room, the new wall tiling had to be removed and the walls will need to be retiled. This work has NOT been completed due to difficulty finding a replacement tiler suitably skilled in mosaic tiling.

Photos have been provided of this area and all areas confirming otherwise the completion of works. 

Painting of all areas is yet to be carried out but this could be done before Monday if required.

It is possible that the powder room wall tiling will completed by the weekend if the tradesperson does eventually turn up on Saturday as promised (unlike on prior occasions).

In the event this tiling is incomplete and this is likely to viewed as non-compliance then Ms Chami would prefer to seek a vacation of this mention and a relisting of the matter if at all possible.

21. I had my Associate respond to the email in the following terms:

On 15 June 2015, Senior Commissioner (as he then was) Moore granted leave, in Chami v Lane Cove Council (No 2) [2015] NSWLEC 1206, to Ms Chami to reopen those aspects of the works required to be carried out in Schedule 1 to Chami v Lane Cove Council [2015] NSWLEC 1003 (Chami 1) where those works were to be undertaken to the balcony at the western end of the uppermost level of the dwelling. Directions were given, as part of that decision, as to how that reopened hearing would be integrated with the further hearing set down for 31 August and 1 September to deal with whether other works required in Chami 1 had been carried out in accordance with the requirements for those works.

Acting Justice Moore (as he now is) has considered the email from Mr Ross of 26 August 2015 seeking to vacate the hearing dates set for 31 August and 1 September. His Honour has determined that the hearing will resume as set down commencing on site at 9:30 AM on 31 August.

If there is some necessity for an application to be made by Mr Ross on behalf of Ms Chami for deferral of consideration of any matters arising from the Schedule in Chami 1 (as foreshadowed in Mr Ross’ email), his Honour will consider such an application in court after the conclusion of the site inspection and in light of what is observed during that inspection.

22. As it appeared clear from the terms of the email from Mr Ross that this email did not appear to have been forwarded to Mr Griffiths, solicitor for the Council, I had my Associate forward a copy of the email to the Court and my Associate’s reply to Mr Ross to Mr Griffiths (incorporating in the material sent to Mr Griffiths the images that had been appended by Mr Ross to his email to the Court).

23. The site inspection in this phase of the proceedings showed that not only was the tiling incomplete but, also, that there were dangling electrical wires adjacent to the doorjamb thus making it obvious that the electrical works were similarly incomplete.

24. During the course of the hearing after the site inspection, I indicated that I did consider it appropriate to allow a reasonable time for Mr Ross to arrange to have these works completed on Ms Chami's behalf and to obtain the necessary certification. The timeframe for resolving this issue is set out in the directions of the conclusion of this judgment.

25. The relevant provisions of the Building Code of Australia (“the Building Code”) concerning residential dwellings are contained in Volume 2 of the Building Code. Part 3.8, Health and Amenity, deals, in Part 3.8.1, with waterproofing requirements for wet areas.

26. “Wet areas” are defined in the Building Code at A1.1 in the following terms:

Wet area means an area within a building supplied with water from a water supply system, which includes bathrooms, showers, laundries and sanitary compartments and excludes kitchens, bar areas, kitchenettes or domestic food and beverage preparation areas.

27. “Sanitary compartment” is separately defined as meaning “a room or space containing a closet pan or urinal”.

28. The powder room satisfies the definition of “sanitary compartment” and is, therefore, a wet area for the purposes of Part 3.8.1 of the Building Code. The requirements for building elements in such locations are set out in 3.8.1.2 Wet Areas in the following terms:

Building elements in wet areas within a building must be waterproof or water resistant in accordance with Table 3.8.1.1; and

Comply with AS 3740.

29. Relevantly, Table 3.8.1.1 includes requirements for laundries and WCs – mandating that the floor of the room is to be water resistant whilst the wall/floor junctions are to be waterproof. “Water resistant” and “waterproof” are also terms defined in A1.1 of the Building Code. These definitions in the following terms:

Waterproof means the property of a material that does not allow moisture to penetrate through it.

Water resistant means the property of a system or material that restricts moisture movement and will not degrade under conditions of moisture.

30. It is a requirement of s 80A(11) of Environment Planning and Assessment Act 1979 (“the Planning Act”) that:

A development consent is subject to such conditions as may be prescribed by the Regulations.

31. Division 8A of the Environmental Planning and Assessment Regulation 2000 deals with prescribed conditions of development consent. Relevant to requirements for the powder room, cl 98(1)(a) provides:

that the work must be carried out in accordance with the requirements of the Building Code of Australia.

32. The schedule of works attached to Chami No 2 required, for the powder room, that any necessary wet area membrane certification was to be provided as a prerequisite to incorporation of that which is contained in this room as part of a building certificate. Such certification is necessary in order to ensure compliance with the relevant provisions of the Building Code.

33. During the course of the hearings subject to this decision, Mr Ross indicated that he was unable to provide such certification and he asserted that this was because the powder room was an existing structure. As with many statements made by Mr Ross during the course of these proceedings, that position is demonstrably untrue. Drawing No 2 of Exhibit R is the floor plan of the level on which the powder room is what located. This plan forms part of the approval plans for Development Application D328/07 granted by the Council on 2 April 2008. The “as built” plans (Exhibit 6) mark this “as existing”. The fact that the powder room exists is, of course, incontrovertible but what is equally incontrovertible (as shown on Exhibit R) is that this powder room did not exist at the time the original development consent was granted. The terms of the 2008 development consent are in evidence (Exhibit 7). This consent provides, in condition (4) that “All building works are required to be carried out in accordance with the provisions of the Building Code of Australia”.

34. Clearly, in the absence of a proper membrane and certification to demonstrate compliance with the Building Code of Australia, this element of the works is in breach of the development consent. Therefore, this requires me to consider whether, as a matter of law, I can incorporate the powder room within the statutory protection afforded by a building certificate.

32. The requirement I imposed for appropriate certification for the powder room arises from my standing in the shoes of the Council and exercising the power given by s 149D(5) of the Planning Act.

33. As I am satisfied that the powder room is, demonstrably, not part of the original layout of the building and as compliance with the wet area provisions of the Building Code represents sound construction practice in this regard, even though I consider that I have the power to grant a building certificate without satisfactory proof of compliance with the relevant elements of the wet area provisions of the Building Code, I do not consider it is a matter of desirable public policy that I do so as the absence of appropriate required waterproofing may act to cause degradation of other elements of the building, particularly of existing, older brickwork in the vicinity.

34. It therefore follows that, unless appropriate certification is able to be provided as to waterproofing compliance for the powder room, with such certification provided prior to the finalisation of my last inspection of the property, the powder room must be excluded from any building certificate to be issued.

The lift well

38. In Chami No 1, I dealt, at some length, with the state of the lift well at the time of the original inspection and what was observed during the course of the subsequent inspection in the first phase of the proceedings (an inspection that took place several months after the first). It is unnecessary to canvass that discussion at length but, to assist in understanding this decision, I make the following brief comments:

1. During the first inspection of the site, I looked up the lift well from the garage level (the lowest of the four levels of the dwelling) and there was no lift infrastructure in the lift well (as illustrated by the lower of the two photographs incorporated in Chami No 1 at [218]);

2. The aperture to the lift well in the garage and on the first habitable level of the dwelling were observed, during the second site inspection of the first phase, to be blocked by the affixing of a panel of formply or similar;

3. For reasons discussed in Chami No 1, the question of a lift in the lift well (whether in fact installed at the time of the second inspection) was unclear. However, it was Ms Chami's position, put by Mr Ross, that the issue of a lift in the lift well was not part of the present building certificate proceedings; and

4. For reasons of safety protection on the basis that there was no lift in the lift well, the schedule of works required that protective barriers of the same nature observed during the second site inspection were to be installed on the second and third habitable levels of the dwelling if they were not, in fact, already installed.

39. During the course of the current site inspection, on the lowest habitable level, Mr Ross pointed out sliding stainless steel doors installed in the lift well at that level. The protective barrier observed during the course of the second of the earlier inspections had been removed. Mr Ross indicated that similar doors had been installed at the other three levels. It was not necessary, for the purposes of these proceedings, to inspect those other locations, as Mr Ross had conceded that there were no other protective coverings installed.

A possible building certificate application for a lift?

40. During the course of the subsequent court hearing, Mr Griffiths indicated that it was the Council's desire that this phase of the proceedings address and result in finality all matters currently or potentially in dispute concerning works to the dwelling. He indicated that the Council considered it appropriate that Ms Chami contemplate lodging a building certificate application for a lift in the lift well. It is unnecessary to set out any detail of the subsequent discussion but, at the end of the first day, Mr Ross was requested to seek instructions from Ms Chami as to whether she would be prepared to lodge a building certificate application for a lift and the timeframe within which she would be prepared to do so if this were to occur.

41. Whilst, obviously, Mr Griffiths was not in a position to fetter the Council's decision-making process should such an application be lodged, he indicated that it was probable that any such application that was made and accompanied by adequate technical information would be approved with a condition being attached by the Council prohibiting use of the dwelling for multiple occupancy.

42. The way forward potentially to resolve this issue in conjunction with resolution of matters that are within the scope of these proceedings is discussed later.

Structural engineering evidence

43. When Mr Ross sought to tender Mr Natoli’s Statement of Evidence, Mr Griffiths objected to its admission on a variety of bases. My following comments explain why I admitted it as Exhibit V (subject to such weight as might be given to it) and the conclusion that should be drawn as to the superficiality of consideration of the requirements for expert reports by Mr Natoli in preparing a document that significantly and fundamentally departs from what might reasonably be expected from a person giving expert evidence in proceedings such as this. A copy of the document and its attachment (omitting the formal coversheet) is Appendix 3 to this decision.

44. I agreed to the tender of the document not because it is capable of being regarded as completely satisfactory evidence of any matter arising for consideration in the proceedings but to demonstrate the complete absence of proper consideration by Mr Natoli of relevant potentially useful and available material on critical structural engineering points.

45. To complete an understanding of the virtually complete absence of valid structural engineering evidence, three further matters are to be observed.

1. First, although the timetable set out in the directions to Chami No 2 provided the Council with the opportunity to provide structural engineering evidence and, if doing so, providing for the usual joint conferencing and joint reporting process for such experts, the Council elected not to provide such evidence;

2. Second, both parties were given leave to subpoena Mr Koloff, the structural engineer who had been engaged in the construction design and activities for the site. The leave was given to subpoena any documents held by him and/or to require him to attend and give evidence. These provisions were contained in the directions set out in Chami No 2 as, in the reopening application hearing, the only material provided of a structural engineering nature (using that description at its widest for reasons that would be obvious from a reading of the relevant parts of Chami No 2) was an email from Mr Koloff to Mr Ross (this email is reproduced as the attachment to Mr Natoli's Statement of Evidence appended to this decision); and

3. Third, Mr Natoli fails, entirely, to set out the required chain of reasoning for the conclusions he seeks to derive from the material cited on page 1 of his statement. Although some assumptions are implied, the process is woefully inadequate and reflects poorly on his understanding of requirements for those giving expert evidence.

46. Neither Ms Chami nor the Council chose to issue any subpoena to Mr Koloff.

47. The outcome of these forensic decisions was, effectively, an almost total absence of any useful structural engineering evidence in this phase of the proceedings in circumstances where fundamental safety issues of a structural engineering nature had been raised as a basis for seeking reopening concerning what measures were appropriate to be considered to address and rectify the unacceptable streetscape presentation of the awnings and balustrading at the western end of the uppermost level of the dwelling (for the reasons set out in Chami No 1).

48. It would be inappropriate of me to speculate on the reasons why the Council made the forensic election not to provide structural engineering evidence for this phase of the proceedings.

49. However, I observe, despite the extremely limited utility of Mr Natoli's report – for reasons discussed in detail above, it is common practice in Class 1 proceedings such as these for inadequate expert reports (including ones so manifestly inadequate as is the case with Mr Natoli's report) to be admitted subject to such weight as might be afforded to them.

50. As a consequence, I find the Council's decision not to join evidentiary issue on structural engineering matters fundamental to this phase of the proceedings to be curious.

51. At the commencement of the second morning of this phase of the proceedings, Mr Ross provided a curriculum vitae for Mr Natoli that was added, without objection by Mr Griffiths, to Mr Natoli's Statement of Evidence. Doing so satisfied the relevant requirement in Pt 31 r 27(1)(a) of the Uniform Civil Procedure Rules 2005.

52. I have earlier set out the basis upon which I rejected Mr Griffiths’ objections to the tender of Mr Natoli's Statement of Evidence. I repeat the observation earlier made that the acceptance of the tender of the document still requires me to undertake an assessment of the extent to which it should be given any weight in my determination of relevant issues in these proceedings. As a consequence, I now turn to address, in more detail, the contents of Mr Natoli's Statement of Evidence. As earlier noted, the Statement of Evidence (absent the formal coversheet) is reproduced at Appendix 3 to this decision.

53. At the foot of the first page, Mr Natoli sets out the two documents to which he has had regard, with these being:

1. The original development application plans in nine sheets; and

2. The terms of an email from Mr Koloff to Mr Ross dated 5 May 2015.

54. Mr Natoli also notes that he has made an inspection of the site and the conclusion that he draws from that inspection is reproduced at the top of the second page of his Statement of Evidence.

55. I also observe that I rejected the final sentence on the second page of Mr Natoli's Statement of Evidence on the basis that it was expressing a town planning opinion and there was no suggestion he held any appropriate qualifications to enable him to express such an opinion. His later-provided curriculum vitae confirmed this conclusion. It is, however, a further clear demonstration of Mr Natoli's failure to understand the scope of responsibilities of an expert witness.

56. It is also important, in my analysis of this Statement of Evidence, to have regard to what has not been considered in its preparation. Equally, it is appropriate to consider what information might reasonably have been available to Mr Natoli had he competently prepared the document and whether or not I have any evidence of him seeking to avail himself of such material (noting, expressly, that there is no such indication in his Statement of Evidence).

57. Mr Natoli has not examined any structural drawings prepared by Mr Koloff whatsoever, even though some information of this nature was available (already in evidence through the Statement of Evidence of Mr Leedow – Exhibit 10).

58. Similarly, Mr Natoli has not had regard to a document prepared by Mr Koloff (Exhibit G) which includes a relevant commentary on a number of matters germane to the points about which he has expressed a professional opinion. There is no evidence that he has endeavoured to have (whether successfully or not) any conversation with Mr Koloff concerning these matters.

59. There is no evidence that he has made any enquiry of Mr Ross of the terms of any questions asked by Mr Ross of Mr Koloff that led to Mr Koloff responding with the email of 5 May upon which he, Mr Natoli, has relied in the forming of his expert opinion.

60. Put bluntly, there is no proper basis upon which I could conclude that Mr Natoli has formed any opinion about the matters concerning which he has given evidence, save and except for what he has observed during the course of his site inspection. His observation concerning making that site inspection is, relevantly, in the following terms (reproduced at the top of page 2 of his Statement of Evidence):

This is to certify that, I have recently inspected the above mentioned premises to assess the current structural state of the property and specifically the second floor balcony area and provide a brief statement regarding the request by Council to their recommendation of the installation of approximately 800mm of soil to provide a new planter/garden area …

61. It is, in these proceedings, as I have earlier observed, necessary for me to determine what weight I give to the evidence, such as it is, contained in Mr Natoli's Statement of Evidence.

62. Weight, in this regard, is used in a balancing sense in a comparison with what other relevant evidence there might be on the issue under consideration. Indeed, an appropriate metaphor for this process might be regarded as weighing the evidence on the scales of justice. For this purpose, my assessment of Mr Natoli's evidence is that it is a featherweight on those scales and, indeed, the weight of a light, downy, breast feather of a wren rather than the more substantial wing or tail feather of an eagle.

63. Nonetheless, the difficulty that I face in these proceeding is that, as a consequence of the Council's forensic decisions neither to require Mr Natoli for cross-examination (cross-examination being an alternative evidence harvesting technique available to the Council in lieu of calling its own expert evidence) or to call any expert evidence of its own, I am left in the position where, on the countervailing arm of the scales of justice to that weighed down by the minimal featherweight of Mr Natoli's evidence, there is nothing from the council.

64. There is no basis upon which I can conclude that I should pay no regard to Mr Natoli's evidence whatsoever, and the total absence of any alternative evidence from the Council leaves me with no alternative but to accept the conclusion that he sets out on the second page of his Statement of Evidence – a conclusion in the following terms:

I believe that the additional loads created by the installation of some 800mm soil over an area of some 33 sq. metres will render the existing balcony and the supporting structure structurally unstable and inadequate to support the proposed loads.

resolution of The balcony/streetscape issue

65. Having reached the above conclusion made necessary as a consequence of the Council's tactical approach, I cannot be satisfied that it would be appropriate to require the works contained in Schedule 1 to Chami No 1 relating to construction of (and installation of soil and plants in) a planter box on that balcony at the location shown and with the dimensions of that depicted on the relevant element of the original development consent plans (see extract reproduced as the first photograph at [477] of Chami No 1). There is certainly zero evidentiary basis upon which I could conclude to the degree of comfortable satisfaction discussed by the High Court (see Briginshaw v Briginshaw [1938] HCA 34; 60 CLR 336) that it would be appropriate to require the building of an inner masonry wall at the location of the current lightweight, Blueboard wall inspected during various site inspections and as shown in the photographs reproduced in Chami No 1 at [498] and [499].

66. Having reached this point in my evaluation of matters pressed by Mr Ross on the re-opened element of Chami No 1 concerning this balcony, there are two matters that I must address in light of the position I have necessarily reached because of that which is responsible to be drawn from Mr Natoli’s Statement of Evidence and the complete absence of any countervailing evidence advanced by the Council. Those two matters are:

• The broad conclusion reached in Chami No 1 that the combination of the masonry balustrading to this balcony observed in conjunction with the awnings as constructed at that level are, for the reasons set out in Chami No 1, unacceptable in their streetscape presentation; and

• The purposes of a building certificate proceeding is not one that is punitive.

67. With respect to the second point, at [20] in Chami No 1, I observed:

Second, importantly, appeal proceedings concerning a building certificate application are, in no way, punitive proceedings of any disciplinary nature for the carrying out of unapproved works.

68. As a consequence, I must consider, dispassionately, how there might be an appropriate outcome addressing the unacceptable streetscape presentation.

69. It is not appropriate for me to seek to do so in any fashion that does other than address the desired outcome of rectification of that streetscape presentation in a fashion that is appropriately proportional (in the sense that the concept of proportionality as discussed in Chami No 1 at [203] and following).

70. At the commencement of the second day, I invited Mr Griffiths and Mr Ross to contemplate one potential outcome – namely, the removal of the masonry balustrade elements at the western face of this balcony and their replacement by alternative less visually intrusive balustrading such as an extension of the existing glass balustrading at the southern end of that balcony's presentation to the street.

71. Toward the end of the hearing, Mr Ross indicated that, if I were minded to impose such a requirement, Ms Chami would accept that as an outcome resolving this aspect of the proceedings.

72. On the other hand, Mr Griffiths opposed such an outcome on two bases. First, he said that extended glass balustrading had the potential, through reflection and the existence of the necessary supporting structure, to present as providing bulk to the structure (although he conceded that the bulk would be less than that of the present masonry balustrading). He also pressed the requirements of the Council's development control plan (Lane Cove Development Control Plan 2009 – “the DCP”) that prescribed a maximum width of 3m of balconies accessible from habitable rooms of a dwelling. When Mr Ross disputed the existence of such a provision, Mr Griffiths showed Mr Ross the terms of the relevant provision contained in Pt C cl 1.8.2 Privacy – Visual and Acoustic of the DCP at (c), a provision in the following terms:

Elevated decks, terraces or balconies greater than 1m above ground level (existing) to living areas are not to exceed a maximum depth of 3.0m. Deeper decks may be considered if privacy to adjoining properties is addressed.

73. As I observed to Mr Griffiths during the course of his submissions about the potential visual impact of an extended glazed balustrade, it could be a requirement of such balustrading that the installed safety glass be non-reflective (in the event that I were to adopt this course of action).

74. The streetscape impact arises from the combination of the awnings and the masonry balustrading and the fact that the slab at that level extends further towards the street than originally approved (particularly when having regard to the fact that the awnings are to the west of the edge of the slab upon which the balustrading is erected). The direct streetscape presentation can be seen in the photograph reproduced at [8] in Chami No 1 whilst an oblique view is reproduced at [442].

75. I also turn to consider Mr Griffiths' objections to permitting the totality of the deck area to be used for that purpose rather than requiring some other form of internal balustrading (of a more lightweight nature such as glass balustrading) located at the point shown on the development consent plans as being the inner wall of the garden box or, perhaps, at the location of the Blueboard structure (referred to as a “sham” structure in Chami No 1 – a conclusion from which I do not resile following my further inspection of the site).

76. Mr Griffiths proposed, as I understood him, that a balustrade of this nature, together with the requirement that the existing balustrading to the west of such a location, should be demolished and the resulting flat slab area rendered non-trafficable as a consequence would be an appropriate outcome. This, he submitted, was an outcome necessary to reflect privacy requirements flowing from the provisions of the DCP.

73. In these circumstances, having been on the balcony in question, it is clear that retention of the masonry balustrades on the southern and northern sides would provide appropriate privacy protection to the neighbours in a fashion generally consistent with that which would have been occasioned had the slab for this area been constructed in a fashion capable of accommodating the approved garden box (whatever might be that concept given the varying descriptive terms used on the plans and Mr Ross’ dissembling as to what he considered was intended to be installed to be compliant with the relevant description).

74. Similarly, with respect to the viewing toward the west, the overlooking (to the extent that there is any) is to the street and the front setback of a dwelling directly opposite. To the south-east, however, there is also a significant view toward the water and it is likely, in conventional planning terms, that the eye of any user of this space would be drawn toward that longer, more attractive outlook rather than to any immediate view of local residential built form.

75. As a consequence, I am satisfied, on a proper consideration of the provisions of the DCP, that there is no reason to confine use of the balcony to a minimum depth of 3m.

76. The consequence of this analysis is that there is no proper basis for declining to permit use of the whole area as a balcony, provided the issue of rectification of the otherwise unacceptable visual impact in the streetscape can be achieved.

77. I am satisfied that sufficient amelioration of that streetscape presentation impact can be achieved if there is an extension of the existing glass balustrading along the totality of the western edge of the balcony space with the requirement that the glass elements of such balustrading be of non-reflective glass.

78. For completeness, having reached that overall conclusion, I should observe that I am satisfied that if I were to require some balustrading setback any further than the present glass balustrade is set back from the edge of the slab, it would be reasonably viewed as being required for punitive reasons and not to serve a proper planning purpose. As a consequence, it would be improper for me to consider doing so.

Orders to be attached to the building certificate

Introduction

83. The power to make orders in connection with the granting of a building certificate is derived from s 149F(3)(a) and (c) of the Planning Act.

84. From the commencement of these proceedings, the Council has indicated that it proposed that there be orders made to accompany any building certificate to be issued so that such obligations as might be contained in those orders would act to ensure protection of the outcome of the building certificate process.

85. In the directions set out at the conclusion of Chami No 2, I provided a process whereby both the Council and Ms Chami could propose conditions that might attach to any building certificate and for each of them to have the opportunity to comment on; propose amendments to; or object to the incorporation of any condition proposed by the other.

86. The Council filed its schedule of proposed conditions on 26 June in compliance with the relevant direction in Chami No 2. Mr Ross objected to these proposed conditions on the basis that there had been no service on Ms Chami of the document. Mr Griffiths read an affidavit of Ms Juod dated 31 August 2015 on this point.

87. I am satisfied, on the basis of the terms of the affidavit and Attachment C to it, that a copy of the Council's schedule of proposed conditions was served on Mr Ross, as Ms Chami's agent, by ordinary post at the address in Northwood where the dwelling is located and that, as that address has been used, in the past, for posting communications to Mr Ross that have been received and acted upon by him (including correspondence from the Registrar of the Court), this was effective service.

88. On the other hand, no material was filed for Ms Chami in response to the Council's proposed conditions, nor were any alternative conditions proposed by her. It therefore remains, solely, for me to consider whether or not I should impose the conditions proposed by the Council (whether or not in the proposed or modified terms). The Council proposed seven conditions set out in tabular form. That table is reproduced below:

ORDER/CONDITION

REASONS

1   There shall be no alteration, variation or removal of works carried out pursuant to Schedule 1 of the judgment of the Land and Environment Court dated 23 January 2015 herein.

• For compliance purposes.

2   There shall be no use of the lift well and/or any lift therein for the purposes of a lift without development consent theretofore.

• Not the subject of this application or any development consent.

• Creates the possibility of multiple occupancies.

3   No second or separate kitchen facility shall be installed or used in the subject premises without further development consent theretofore.

• As in 2 above.

4   That the premises shall not be used for separate tenancies or for dual or multiple occupancy purposes without further development consent theretofore.

• As in 2 above.

5   The yard/passageway area to the north of the dwelling shall not be used at any time for the passage of, or the parking of, motor vehicles, trailers and/or marine craft thereon.

• To preserved landscaped area.

• To avoid multiple occupancy.

• To assist compliance with condition 6 hereunder.

6   The undercroft area at the south of the dwelling shall not be used for the garaging or storage of motor vehicles, trailers or marine craft.

• For the reasons cited in 5 above.

• To ensure FSR compliance.

7   The undercroft area to the south of the dwelling shall not be further enclosed nor used for habitable purposes.

• For compliance purposes.

A general prohibitory condition?

89. As can be seen from its terms, the first proposed condition is a general prohibitory one requiring, in practical effect, that those measures required to be carried out in order to provide a proper foundation for the issuing of a building certificate are not undermined.

90. The protective effect of a building certificate is that it prevents the Council from seeking any orders concerning the works covered by the certificate for a period of seven years.

91. Whilst I do not discern from anything said by Mr Ross that Ms Chami proposes to undo or vary any of the foundational matters determined to be necessary as prerequisites for the issuing of a building certificate, nonetheless it is reasonable to impose a general protective condition in order to require preservation of this position.

92. However, the scope of the condition currently proposed by the Council is in absolute terms and makes no provision for any process for variation. I do not consider that this is reasonable. As a consequence, although a general prohibitory condition should be imposed, it should provide that the condition is capable of variation by application to the Council or to the Court.

The lift well

93. The proper approach to the lift well is dealt with elsewhere and, in light of that discussion, no condition is appropriate unless it becomes necessary to require re-installation of safety barriers.

Prohibiting a second kitchen

94. With respect to the condition prohibiting the installation of a second kitchen, I consider that it would not have been appropriate to include such a condition had the precise terms dealing with certification of the process for the removal of the kitchen that had been located in the north-eastern corner of the lowest habitable level of the dwelling been satisfied.

95. However, the certificate (Exhibit W) from the plumber who removed the water and drainage fittings from the old kitchen that had previously been installed in the north-eastern corner at the lowest habitable level of the dwelling does not set out, precisely, the details of the removal as required in the amended schedule attached to Chami No 2.

96. With respect to adjustment to and removal of electrical connections, Mr Ross informed me from the Bar table that no work had been undertaken by an electrician and that the sole electrical disconnection had been effected by turning off the stove circuit at the main power board.

97. As this statement is not evidence, I do not need to consider whether or not I should believe it but, given matters discussed in Chami No 1 concerning statements made by Mr Ross in writing and orally during the course of these proceedings, I would not have been prepared to accept any evidence given by Mr Ross unless it was independently verified either by direct observation or by credible independent evidence.

98. However, it is unnecessary to detain finalisation of these proceedings by undertaking any further investigation of this matter. During the course of the most recent site inspection, it was clear that the kitchen required to be removed had, in fact, been removed and that a proper cement render finish had been applied to the walls in that space (although those walls had not yet been painted).

99. I am satisfied that the appropriate way to deal with the absence of appropriate certification is to impose the specific condition proposed by the Council as condition (3) prohibiting the installation of a second kitchen in the dwelling. However, as with the general prohibitory condition, this should include the ability for an application to be made to the Council or the Court to do so (a development application being required, in any event, for the installation of a new kitchen in the premises).

Prohibiting multiple occupancy

100. The premises that are the subject of these proceedings are a single dwelling. There has not been any application made to the Council to have it be permitted to be used as a multiple occupancy structure.

101. There is no proper bathroom facility on the lowest habitable level and a fresh development consent would be necessary before such a bathroom could be installed.

102. The powder room that has been the subject of consideration in these proceedings does not appear, in the configuration that will be regularised by the issuing of a building certificate, to be capable of incorporation of a shower and becoming a bathroom.

103. As a consequence, I can see no practical basis how the premises could be used, functionally, for multiple occupancy purposes even if consent were to be sought for this to be permitted.

104. It is, as a further consequence, not appropriate to incorporate any such prohibition in conditions attaching to a building certificate. If, for some reason, the Council considers that in some fashion the premises are being so used in the future, it will be open to the Council to take such action as it considers appropriate at such time.

Parking in the northern passageway

105. With respect to the proposed condition prohibiting use of that portion of the northern side passageway to the west of the gate for the purposes of parking vehicles, I do not consider that that falls within the scope of the present building certificate application and the proposed condition is therefore rejected.

Use of the undercroft

106. With respect to the specific conditions proposed concerning the undercroft area and its use for vehicle parking, the requirement in the general prohibitory condition that acts to preserve the two small masonry walls and gate in the passageway along the northern side of the dwelling means that it would not be possible to access the undercroft for such a purpose. It is, therefore, unnecessary to impose a specific condition as I am satisfied that the general prohibitory measure is sufficient.

Enclosure of the undercroft

107. With respect to the proposed condition concerning enclosure of spaces in or adjacent to the undercroft, creation of habitable space of that nature is not permissible without development consent. It is appropriate, if only for purely precautionary purposes to put any purchaser on notice of that restriction, if the property were to be sold, to include such a condition.

Costs

Introduction

108. During the course of the hearing on 27 May on the application to reopen, I indicated, several times, that when sitting as a Commissioner of the Court (as I then was) I had no jurisdiction to make costs orders in proceedings such as these (including any costs orders that might ordinarily be expected to flow from an application to reopen).

109. As I indicated to Mr Griffiths and Mr Ross at the commencement of the court phase of the current hearings, I am now vested with that power.

110. I also later indicated that I intended to consider what costs orders (if any) might be made in these proceedings, across the whole span of them since they commenced over a year ago, and provide for any such order in this decision but to do so on the basis that if either the Council or Ms Chami wished to make submissions seeking some alternative order to that proposed, my Associate should be notified. The matter would then be set down for a short supplementary hearing confined to the issue of costs.

111. Self-evidently, if any such supplementary hearing were to be held, the costs of such a hearing might need to be encompassed in or considered in the context of my proposed costs order – depending on the outcome of such supplementary hearing.

112. There are, in my assessment, two specific and different phases of the proceedings, to date, warranting my consideration as to whether any costs order should be made.

The first phase hearings

113. The first of them is the period leading up to and encompassing the decision given in Chami No 1 on 23 January 2015. This involved 12 hearing days between 14 August and 21 November 2014. Although this 12-day hearing (including two site inspections) was significantly protracted due to the lengthy and extensive cross examination of Mr Nash by Mr Ross, I do not consider that, given the various concessions that Mr Ross obtained from Mr Nash during this cross-examination, it would be “fair and reasonable’ (within the terms of Part 3 rule 7 of the Land and Environment Court Rules 2007 and the contextual framework discussed by Preston CJ in Grant v Kiama Municipal Council [2006] NSWLEC 70 that I should make any costs order concerning that phase of the hearings.

The reopening phase

114. However, a different position applies with respect to the hearings commencing on 19 February 2015 leading to my decision in Chami No 2 to permit reopening, on a limited basis, and, to the extent that the proceedings that commenced on 31 August needed to carry over to 1 September as a consequence of the reopening to deal with the balcony at the western end of the uppermost level of the dwelling, those carry-over costs. These costs arise solely as a consequence of Mr Ross, on behalf of Ms Chami, seeking leave to reopen the proceedings.

115. It is unnecessary for me to set out, in any significant detail, that which was dealt with in Chami No 1 concerning structural engineering issues. General consideration of structural engineering matters was discussed in Chami No 1 commencing at [161] and concluding at [192]. In particular, at [181], I set out the express directions that were made to permit Mr Ross to adduce structural engineering evidence on Ms Chami's behalf should he wish to do so in that phase of the proceedings. The nature of the matters that needed to be addressed, relevant to the limited area with respect to which reopening has been permitted, were set out in an extract from the transcript of 15 October 2015 at [177] of Chami No 1.

116. Other elements relevant to the reopening were dealt with at [462] to [466] and [473] to [519] leading to the conclusion set out at [522] and [523] as to how a permanent garden bed as set out at the location in the original development consent plans would be an appropriate response to ameliorating issues of unacceptable visual impact of the awnings and existing balustrading when viewed from the street.

117. Had Ms Chami taken the opportunity, specifically provided for in the first phase to address these issues and provide proper structural engineering evidence, I am satisfied that the necessity to reopen would not have arisen. In light of this conclusion, it is appropriate that Ms Chami be ordered to meet, on the ordinary basis, the additional costs incurred by the Council in responding to this matter.

118. Having said that, however, given that the reopening was permitted on a fashion confined to structural engineering issues, I do not consider that Ms Chami should bear any costs of Mr Nash, the Council’s planning consultant, associated with his attendance at or participation in preparation for the reopened hearing concerning the upper western end balcony of the dwelling.

Proposed costs order

119. As a consequence, unless the parties indicate to my Associate and the other party by 4:30 PM on Friday 18 September that they seek some other order as to costs and what terms of such alternative order might be, the orders for costs that will be contained in the final orders in these proceedings will be in the following terms:

1. The applicant is to pay the respondent's costs, as agreed or assessed, for the application to reopen the proceedings;

2. The applicant is to pay half of the Council's costs, as agreed or assessed, for the hearing on 31 August and 1 September excluding any costs that may have been incurred by the respondent for the respondent's consultant town planner, Mr Nash, for attendance at or in preparation for those hearings.

Conclusion

120. With respect to those matters that are set out in the schedule to Chami No 2, I have concluded that a combination of the works carried out to date, and completion of the remainder of the works proposed to be carried out to the powder room, when coupled with the imposition of conditions in the terms I have earlier set out, satisfies the requirement with respect to those elements as necessarily satisfied precursors to the issuing of a building certificate.

121. Further, I am satisfied that removal of the existing masonry balustrading at the western end of the balcony at the uppermost level with it being replaced by glazed balustrading incorporating non-reflective glass will effect sufficient amelioration of the otherwise now unacceptable presentation in the streetscape to permit the totality of that tiled area to be used as a balcony.

122. Finally, in the interests of dealing with all issues potentially involved with non-compliant elements of the dwelling, I record that the result of these proceedings should be the incorporation in the certificate of the structure that comprises the lift well (that is confined to the shaft within which a lift could be installed) but will not include any lift currently wholly or partially installed within the lift well.

123. However, as Mr Ross indicated toward the end of the second day of the current phase of the hearings, Ms Chami is prepared to lodge, in a timely fashion, such application/s as may be required by the Council (whether solely a building certificate application or a building certificate application coupled with an application to use the structure within the lift well – this being a matter for discussion between Ms Chami and the Council).

124. If such additional process were to be undertaken in such a timely fashion, it may well be that appropriate certification arising from these proceedings and such a related process could resolve all issues relating to non-compliant construction on the site that have been canvassed in these proceedings – whether able to be dealt with to finality in these proceedings or not.

125. As I observed to Mr Ross toward the conclusion of this phase of the proceedings, if the appropriate process is started with the Council for regularisation of a lift in the lift well, I would not require the re-installation of formply safety barriers across the apertures in the lift well at each of the three habitable levels. However, if, by the time of what I hope will be my final visit to the site to inspect completed works, such a process has been undertaken and Ms Chami has made such an application or applications as may be appropriate concerning a lift in the lift well, forbearance with respect to the safety barriers will be continued.

The way forward

126. In order to enable the issuing of a building certificate incorporating the conditions earlier discussed, it will be necessary for Ms Chami to give effect to two further requirements for works at the site. These are:

1. Completion of the tiling and electrical work to the powder room and provide Building Code compliant certification as earlier discussed; and

2. Removal of the masonry balustrading on the western edge of the balcony at the uppermost habitable level of the dwelling and its replacement with Building Code compliant nonreflective glazed balustrading coupled with the removal of the sham Blueboard structure in the middle of that balcony area.

127. Mr Ross indicated that he did not think it would take long for Ms Chami to have the powder room works completed and I indicated that, at that time, I was minded to permit four weeks for this to occur.

128. In light of the conclusion that I have reached concerning the balustrading of the balcony at the uppermost level at the western end of the dwelling, I have concluded that it would be prudent to allow a slightly longer period for these works to be undertaken.

129. It will, unfortunately, be necessary for me to undertake a fourth inspection of the site to enable me to be satisfied that this has occurred. I therefore propose to set the matter down for a further inspection in about six weeks’ time, that is on Friday 23 October. However, I am concerned to ensure that the need to carry out this further inspection does not interfere with my ability (or the ability of others who may need to be present) to undertake a full productive day’s work after the completion of the inspection. I therefore propose to carry out the inspection at 8.00 am with the expectation that it will be completed within a maximum of 10 minutes enabling return to the Court for a normal court day.

preparation of draft orders and building certificate

130. As the building certificate is to be issued by incorporation in orders of the Court, it is appropriate that the Council's legal representatives prepare a draft of those orders and the building certificate that is to be attached to and incorporated by reference in the terms of those orders. The draft orders are also to incorporate the proposed costs orders earlier discussed unless I have otherwise determined, upon application by either party, that some variation should be made to those proposed orders.

directions

131. I therefore give the following directions:

1. Any party proposing any costs order that differs from that set out at [119] is to notify my Associate of the fact and file and serve by 4:30 pm on Friday 18 September the terms of such proposed alternative costs order together with a summary of submissions in support – such summary of submissions is not to exceed two A4 pages at 12 point font in length;

2. The applicant is to file and serve, by 4.30 pm on 16 October 2015, necessary certification demonstrating compliance of the works in the powder room with the relevant wet area provisions of the Building Code of Australia;

3. The respondent is to file and serve draft orders and a draft building certificate consistent with this decision by 4.30 pm on 16 October 2015;

4. The matter is set down for a further site inspection commencing at 8.00 am on 23 October 2015 for the purposes only of inspecting:

1. The powder room; and

2. Such works consistent with this decision as are carried out to the balcony at the western end of the uppermost level of the dwelling;

5. The matter will then be mentioned at 4.15 pm on 23 October 2015 for finalisation; and

6. Liberty to relist on two days’ notice if there is a material slippage in compliance with this timetable.

Appendix 1 (2.22 MB, pdf)

Appendix 2. (1.32 MB, pdf)

Appendix 3 (1.63 MB, pdf)

Decision last updated: 04 September 2015