Davis v Inner West Council

[2021] NSWLEC 1781

Land and Environment Court

New South Wales

Medium Neutral Citation:

Davis v Inner West Council [2021] NSWLEC 1781

Hearing dates:

Conciliation conference on 24 September, 8 October and 13 December 2021.

Date of orders:

22 December 2021

Decision date:

22 December 2021

Jurisdiction:

Class 1

Before:

Peatman AC

Decision:

See orders at [12] below.

Catchwords:

BUILDING INFORMATION CERTIFICATE - MODIFICATION APPLICATION– conciliation conference – agreement between the parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.15, 4.18, 4.55, 6.25, 8.10, 8.25

Environmental Planning and Assessment Regulation 2000, cll 49, 77, 121B, Sch 1

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

Leichhardt Local Environmental Plan 2013, cll 4.3, 4.4, 5.10, 6.1, 6.2, 6.3, 6.4, 6.5, 6.6, 6.7, 6.8, 6.9, 6.10, 6.11, 6.12, 6.13, 6.14, 6.15, 6.16, 6.17, 6.18, 6.19, 6.20, 6.21, 6.22, 6.23, Pt 6

Local Government Act 1993

State Environmental Planning Policy (BASIX) 2004

State Environmental Planning Policy (Exempt and Complying Development Codes) 2008

State Environmental Planning Policy No. 55 – Remediation of Land, cl 7

Texts Cited:

Building Code of Australia

National Construction Code

Category:

Principal judgment

Parties:

Jonathan Davis (Applicant)
Inner West Council (Respondent)

Representation:

Counsel:
G Shapiro (Solicitor) (Applicant)
S Turner (Solicitor) (Respondent)

Solicitors:
Hones Lawyers (Applicant)
Inner West Council (Respondent)

File Number(s):

2021/181360 and 2021/343776

Publication restriction:

No

Judgment

1. COMMISSIONER: These proceedings relate to development at 184 Nelson Street Annandale NSW as follows:

1. To an appeal by the Applicant against Inner West Council’s (Council) refusal to issue a Building Information Certificate in relation to works in a studio at 184 Nelson Street, Annandale, NSW, being proceedings No. 2021/181360 (BIC appeal); and

2. To the deemed refusal of a Modification Application for a shower in a studio above the garage at 184 Nelson Street being proceedings No. 2021/3433776 (Modification appeal).

3. The BIC appeal has been brought pursuant to s 8.25(1) of the Environmental Planning and Assessment Act 1979 (EPA Act), and falls within Class 1 of the Court’s jurisdiction pursuant to s1 7(d) of the Land and Environment Court Act 1979 (LEC Act).

4. The Modification appeal has been brought pursuant to s 8.9 of the EPA Act, and falls within Class 1 of the Court’s jurisdiction pursuant to s 17(d) of the LEC Act.

5. The statutory power or function to be exercised in determining the proceedings are:

1. In relation to the BIC appeal, s 8.25(3) of the EPA Act, and ss 34(3) and 39(2) of the LEC Act.

2. In relation to the Modification appeal, s 4.55(1A) of the EPA Act, and ss 34(3) and 39(2) of the LEC Act.

2. The Court arranged a conciliation conference under s 34(1) of the LEC Act between the parties, which was held on 24 September, 8 October, and 13 December 2021. I presided over the conciliation conference.

3. At the conciliation conference, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. This decision involved:

1. The Applicant lodging a Modification Application pursuant s 4.55(1A) of the EPA Act to modify the Consent.

2. The Council notifying the Modification Application, and the Applicant filing the Modification appeal as soon as the 40 days elapsed in accordance with a deemed refusal of consent in compliance with s 8.10(1) of the EPA Act.

3. The Court upholding the Modification appeal and granting consent subject to conditions.

4. The Court upholding the BIC appeal, and ordering the Council to issue the BIC.

Background

4. The Site

1. The Site is the whole of the land in Lot A Deposited Plan 437879 known as 184 Nelson Street Annandale NSW 2039 (Site);

2. The Site is rectangular in shape with a primary frontage of approximately 6.81m to Nelson Street and a secondary frontage of approximately 6.88m to Nelson Lane, with an area of 366.7m².

3. The Site currently contains a part single storey/part 2 storey, semi-detached dwelling house with a rear garage with first floor studio above.

4. The adjoining properties support single and two-storey semi-detached dwelling houses. The surrounding area generally consists of a range of different types of residential buildings as well as older light industrial buildings fronting onto Trafalgar Lane. The Site is identified within the Annandale Heritage Conservation Area (C1) under the Leichhardt Local Environmental Plan 2013 (LLEP 2013).

5. The BIC appeal

1. On 12 July 2016, Development Application D/2015/592 (the Consent) was approved for alterations and additions to garage, including to provide for a first floor studio. Relevantly, the Consent contained condition 2(f) which provided:

“The shower in the en-suite bathroom within the studio is to be deleted.”

2. On 14 January 2020, the Applicant lodged a Modification Application pursuant to s 4.55(1A) (first Modification) of the EPA Act which proposed the deletion of condition 2(f) in the Consent, in order to allow the retention of the en-suite shower (which had been constructed) within the studio.

3. The first Modification was put on the Inner West Planning Panel agenda for its 30 June 2020 meeting, together with Council’s officer’s recommendation for approval to delete condition 2(f). However, the Applicant withdrew the first Modification Application on 26 June 2020.

4. There was correspondence between the Applicant and Council from 12 October 2020 as to whether the installation of an en-suite shower in the studio was an exempt development pursuant to the State Environmental Planning Policy (Exempt and Complying Development Codes) 2008.

5. On 3 February 2021, the Applicant lodged Building Information Certificate No. BC/2021/0012 concerning the Site for the installation of a shower in the studio above the garage.

6. The BIC appeal was filed on 24 June 2021.

7. Council raised Contention B1 in its Statement of Facts and Contentions filed 29/07/21, which stated:

“1. Unauthorised works not in the public interest

1.   The installation of the shower in the floor level above the    garage was undertaken without the requisite consents as    required by the Environmental Planning and Assessment Act    1979.

2.   By reason of the matters above issue of a building information    certificate in the current circumstances would not be consistent    with the following objectives in s 1.3 of the EPA Act:

(c) to promote the orderly and economic use and development of land.

3.   The construction of the shower in the en-suite in the studio    above the garage is contrary to the development consent    which includes a condition to delete the shower condition 2(f).

4.   As a result, a Building Certificate for illegal works cannot be    issued by Council’s Building Certification team that is in       contrary (sic) of the approved development consent.

5.   It is not in public interest for a building information certificate to    be issued, to prevent the council taking action in relation to the    shower installation, unless a development consent is in force    which would permit the Applicant to complete a development    which relies upon those terms.”

8. Council’s central issue is to prevent the studio above the garage becoming a secondary dwelling. That issue has been addressed by proposed condition 51 in the Modification appeal.

9. On 8 December 2021, Council moved a motion in Court in the Modification appeal, and the Court granted the following Orders:

“These proceedings be heard together with the Land and Environment Court proceedings 2021/00181360 (BIC proceedings’).

Evidence in these proceedings be evidence in the BIC Proceedings.

The directions hearing listed on 17 January 2022 be vacated.

These proceedings be listed for s 34 conciliation conference at 4.10pm on 13 December 2021 before Acting Commissioner Peatman.

Each party pay their own costs of, and incidental to, this notice of motion.”

10. At the conciliation conference on 13 December 2021, the parties agreed that the contention had been resolved by the lodging (and determination by this Court) of the Modification appeal, preparation of an agreed set of conditions for the Consent, and the subsequent issuance of the Building Information Certificate..

6. Modification Appeal

1. On 3 December 2021, the Applicant filed an appeal against the deemed refusal of Modification Application MOD/2021/0453 (Modification Application) to modify the Consent to amend conditions 1, 2(d) and 51 to allow for retention of the shower in the studio at 184 Nelson Street, Annandale, and also to prevent the studio being occupied as a ‘secondary dwelling’.

2. On 3 December 2021 the Court granted Orders as set out in par [5(9)] above.

3. The final drawing, as agreed by the parties is Architectural Drawing No. 992.2/3E, Amendment E, dated 31 January 2021 (Agreed Drawing). The parties consider that the Agreed Drawing and the proposed amended conditions to the Consent have adequately addressed Council’s concerns as set out in Council’s Statement of Facts and Contentions, filed 29 July 2021.

7. On 13 December 2021, the parties attended a s 34(1) conciliation conference at which agreement was reached to enable the Modification appeal to be upheld, and to modify the conditions of the Consent.

8. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties’ decision if the parties’ decision is a decision that the Court could have made in the proper exercise of its functions. The parties’ decision involves the Court exercising the function as follows:

1. In relation to the Modification appeal, under s 4.55(1A) of the EPA Act, and ss 34(3) and 39(2) of the LEC Act to uphold the appeal, and grant the Modification to the Consent subject to conditions in Annexure A.

2. In relation to the BIC appeal, under s 8.25(3) of the EPA Act, and ss 34(3) and 39(2) of the LEC Act to uphold the appeal, and direct Council to issue Building Information Certificate No. BC/2021/0012.

9. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties identified the jurisdictional prerequisites of relevance in these proceedings to be as set out below, and explained how the jurisdictional prerequisites have been satisfied, as follows:

1. All relevant jurisdictional prerequisites required pursuant to s 4.15(1) of the EPA Act, and as identified by the parties, are met for the following reasons:

1. The Modification Application and BIC Application were made with the consent in writing of Jonathan Davis, the owner of the land to which the Modification Application and BIC Application relate.

2. The Respondent is the Council for the area in which the Site is situated.

3. The Modification Application and BIC Application relate only to the Site.

4. The Applicant paid the relevant fees for the BIC Application and Modification Application. The Modification Application was lodged via the NSW Planning Portal on 22 October 2021.

5. The Respondent undertook an inspection of the premises on 26 April 2021.

6. The Site is located in the R1 General Residential Zone pursuant to the LLEP 2013. The proposed development (including its ongoing use under the Modification Application) is permissible in the R1 Zone.

7. The proposed development is consistent with the objectives of the R1 Zone.

8. The Respondent is the relevant consent authority and has the capacity to enter into the two s 34 Agreements.

9. In respect of cl 5.10 of the LLEP 2013, the Site does not contain a Heritage Item. The Site is located within a Heritage Conservation Area, however, due to the interior nature of the works, the Modification will have no impact on the Heritage Conservation Area. The parties consider that there is no heritage concern.

10. In respect of Pt 6 of the LLEP 2013:

1. The retention of the shower is internal and is limited to the shower only, and therefore cll 6.1- 6.14 are not applicable.

2. Clauses 6.14-6.23 relate to specific land/uses and are not applicable.

11. A BASIX Certificate was issued in respect of the original development application approved by the Council in accordance with the requirements of Sch 1 of the Environmental Planning and Assessment Regulation 2000 (EPA Regulation). As the Modification Application and BIC Application are limited to an internal shower, a further or amended BASIX Certificate is not required.

12. As part of the original development application, consideration was given to whether the Site is contaminated as required by cl 7(12) of State Environmental Planning Policy No 55 – Remediation of Land. The Council’s files do not contain any correspondence, investigations or land use restrictions concerning any contamination issues on this Site or on neighbouring properties.

13. The Modification Application was notified in accordance with s 4.18 of the EPA Act. One submission from objectors was received, and considered by Council.

2. As the Modification Application and BIC Application concern an internal shower, there is no impact in relation to the Height of Buildings standard as set out in cl 4.3 of the LLEP 2013, or the Floor Space Ratio standard set out in cl 4.4 of the LLEP 2013.

3. The Modification Application is for development which:

1. is of minimal environmental impact; and

2. is for substantially the same development as that which was originally approved.

4. The installation of the shower is ancillary to, and does not change the use of the Site from that of a dwelling house (and particularly, does not constitute use of the Site for a secondary dwelling, which would require separate development consent).

5. The shower was installed without development consent or first modifying condition 2(f) of Development Consent No. D/2015/592. The shower is part of a building (noting part of a building is defined as a ‘building’ for which a Building Information Certificate may be granted under the EPA Act).

6. For the purposes of s 6.25 of the EPA Act, the parties agree that there is no matter discernible by the exercise of reasonable care and skill that would entitle the Council, under this Act or the Local Government Act 1993:

1. to order the shower to be repaired, demolished, altered, added to or rebuilt, or

2. to take proceedings for an order or injunction requiring the shower to be demolished, altered, added to or rebuilt, or

3. to take proceedings in relation to any encroachment by the shower onto land vested in or under the control of the Council.

7. Having regard to the matters set out above, the parties are satisfied that:

1. There are no other jurisdictional matters which are required to be addressed by the Court;

2. All jurisdictional prerequisites to the proper exercise of the Court’s power to approve the amended Modification Application and BIC Application have been met; and

3. The Court has the power to grant consent to the Modification Application and BIC Application in accordance with the proposed s 34 Agreements.

10. I am satisfied that the parties’ decision is one that the Court could have made in the proper exercise of its functions, as required by s 34(3) of the LEC Act.

1. In accordance with cl 49(1)(a) of the EPA Regulation, Mr Jonathan Davis gave Owner’s consent on 20 October 2021 to the Modification Application.

2. The Council is the relevant consent authority and has the capacity to enter into the 2 s 34 Agreements.

3. In accordance with s 4.18 of the EPA Act and cl 77 of the EPA Regulation, Council notified the adjoining owners of the Modification Application from 9 November 2021 to 23 November 2021. One submission was received. Council considered the submission from the objectors, and addressed that submission by the insertion of condition 51 in the Consent, i.e. that the studio cannot be occupied as a secondary dwelling.

4. The Site is located in Council’s R1 General Residential Zone pursuant to the LLEP 2013. The proposed Modification Application (including its ongoing use as a studio) is permissible in the R1 Zone.

5. The proposed development is consistent with the objectives of the R1 Zone. The Applicant considers that the Modification Application is consistent with the R1 Zone Objectives as:

1. it provides a variety of housing types and densities (including a main dwelling house with studio),

2. it improves opportunities to work from home (as the studio has the potential to be used as a home work space, separate from the main living area),

3. it is compatible with the surrounding character and style of building (noting no exterior works are provided), and

4. it enhances the amenity of future residents as it provides a shower (additional amenity) within an existing bathroom in the studio.

6. The parties uploaded the Agreed Plan on the NSW Planning Portal on Friday, 22 October 2021 in accordance with cl 121B of the EPA Regulation (portal reference number: PAN-157757).

7. The proposed works are interior, and therefore do not impact on the Heritage Conservation Area in which the Site is located.

8. As the Modification Application is limited to an internal shower, a further or amended BASIX Certificate is not required in accordance with State Environmental Planning Policy (BASIX) 2004.

9. Council has considered whether the Site is contaminated pursuant to cl 7(1) of State Environmental Planning Policy No. 55 – Remediation of Land prior to it granting the Consent. The Council’s files have not revealed any contamination issues on this site or on neighbouring properties.

10. In relation to the issue of a secondary dwelling I note:

1. LLEP 2013 contains the following definitions:

Dwelling means a room or suite of rooms occupied or used or so constructed or adapted as to be capable of being occupied or used as a separate domicile.

Dwelling house means a building containing only one dwelling.

2. Under the Building Code of Australia (BCA)/National Construction Code (NCC) a Sole Occupancy unit is defined as:

“Sole-occupancy unit means a room or other part of a building for occupation by one or joint owner, lessee, tenant, or other occupier to the exclusion of any other owner, lessee, tenant, or other occupier and includes –

A dwelling

A room or suite of rooms in a Class 3 building which includes sleeping facilities; or

…………..”

3. If the Site is to contain 2 separate dwellings, the building would be classified as a Class 2 building (noting that a single dwelling house is classified as a Class 1 building).

4. Part F2.1 of the BCA/NCC specified the minimum facilities required for sole occupancy units within Class 2 buildings as follows:

1. “Within each sole-occupancy unit provide –

A. a kitchen sink and facilities for the preparation and cooking of food; and

B.   a bath or shower; and

C.   a closet pan; and

D.   a washbasin.

PLUS

Laundry facilities including both clothes washing facilities and clothes drying facilities.”

5. Council officer, Tom Williams, inspected the studio on 13 December 2021 at 11.27am and photographed the studio’s interior. The photographic evidence reveals that the studio contains:

1. A microwave oven but no other cooking facilities;

2. A bar fridge.

3. A shower

4. A closet

But importantly does not contain a full kitchen, and nor does it contain laundry facilities.

6. Clearly the studio does not contain sufficient kitchen facilities, or laundry facilities to be classified as a separate dwelling. Those facts together with proposed condition 51 in the Modification Application demonstrate that the studio is not to be used as a secondary dwelling.

11. Council’s investigations have not revealed a reason to refuse the Modification Application.

12. The Modification of the Consent is applicable in these circumstances because it is necessary to amend 3 conditions (1, 2(f) and 50) and insert a new condition: being condition 51

13. Upon upholding the Modification appeal which results in the Consent being modified, the Court has power to direct the Council to issue the BIC.

11. As the parties’ decision is a decision that the Court could have made in the proper exercise of its functions, I am required under s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties’ decision.

11. The Court orders:

1. In relation to proceedings No. 2021/343776:

1. The appeal is upheld.

2. Modification Application MOD/2021/0453 which seeks to modify development consent No. D/2015/592 to amend conditions 1, 2 (f) and 51 to allow for retention of the shower, is approved.

3. Development Consent No. D/2015/592 is modified by the Court as set out in the condition of consent in Annexure A.

2. In relation to proceedings No. 2021/18360:

1. The appeal is upheld.

2. Inner West Council is directed to issue a Building Information Certificate in respect of Building Information Certificate Application No. BC/2021/0012 concerning the property at 184 Nelson Street, Annandale, comprising Lot A in Deposited Plan 437879, for the installation of a shower in the studio above the garage.

…………………………

M Peatman

Acting Commissioner of the Court

(Annexure A) (315537, pdf)

**********

Decision last updated: 22 December 2021