Falamaki v Council of the City of Ryde

[2022] NSWLEC 1621

Land and Environment Court

New South Wales

Medium Neutral Citation:

Falamaki v Council of the City of Ryde [2022] NSWLEC 1621

Hearing dates:

Conciliation conference on 27 September 2022 and 18 October 2022.

Date of orders:

11 November 2022

Decision date:

11 November 2022

Jurisdiction:

Class 1

Before:

Peatman AC

Decision:

The Court orders:

(1) The appeal is upheld.

(2) Pursuant to s 23 of the Land and Environment Court Act 1979, and s 8.25(3)(c) of the Environmental Planning and Assessment Act 1979, the Court grants leave for the Applicant to substitute Building Information Certificate No. BC/2022/0034 dated 18 October 2022 for Building Information Certificate application No. BC/2022/0023 dated 19 May 2022.

Catchwords:

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

Legislation Cited:

Environmental Planning and Assessment Act 1979 ss 6.25, 8.25

Environmental Planning and Assessment Regulation 2021, cll 248, 289

Land and Environment Court Act 1979 ss 17, 34, 34AA
Local Government Act 1993

Category:

Principal judgment

Parties:

Sajjad Falamaki (Applicant)
Council of the City of Ryde (Respondent)

Representation:

Counsel:
R White (Applicant)
Dr S Berveling (Respondent)

Solicitors:
Delana Legal Pty Ltd (Applicant)
City of Ryde Council (Respondent)

File Number(s):

2022/189162

Publication restriction:

No

Judgment

1. COMMISSIONER: These proceedings are an appeal against the deemed refusal of Building Information Certificate No. BC2022/0023 for variations made to an existing dwelling house approved under CDC-17358 which includes alterations and additions to some windows, and other alterations (more particularly set out below) to the existing dwelling, pursuant to s 8.25(1)(b) of the Environmental Planning and Assessment Act 1979 (EPA Act) on 29 June 2022 in relation to all that piece or parcel of land in Lot 16 Deposited Plan 25498 known as 128 Wicks Road North Ryde NSW 2113 (the Site).

1. The proceedings fall within Class 1 pursuant to s 17(d) of the Land and Environment Court Act 1979 (LEC Act);

2. The statutory power or function to be exercised in determining the proceedings are s 8.25(3)(c) of the EPA Act and s 34(3)(a) and (b) of the LEC Act.

2. The Applicant lodged the BIC with the Respondent on 19 May 2022 for the regularisation of specified works for part of the Site that were carried out contrary to the approved Complying Development Consent CDC-17358.

3. The works to be regularised pursuant to the BIC consisted of the following:

1. Modifications to the size or location of windows 2, 3, 4, 6, 28, 13 ,14, 17, 18, 19, 23, 24, 26, 33, 31 and any minor changes to other windows due to construction tolerances and,

2. Addition of windows 22, 25, 29-2, 30, 37, 39 and,

3. Removal of window 102 and 108 and,

4. Minor variations to the parapet wall heights and,

5. Minor variations to the roof form and height and,

6. Minor decrease to the overall building footprint of approximately 4.04m² and,

7. Changes to the floor levels in some sections of the building, particularly:

1. Lowering of Ground Floor B level by 350mm and,

2. Raising Level 1 B by 130mm and,

3. Lowering Garage floor level by 160mm

4. Proceedings No. 2022/00148202 being Dang v Council of the City of Ryde are related to the current proceedings (Related Proceedings), and these proceedings and the Related Proceedings have been run concurrently, with both proceeding participating in a s 34AA of the LEC Act in a conciliation hearing and conference. On the first day of the hearing on 27 September 2022 at the parties’ request the s 34AA conciliation and conference was terminated, and the Court appointed me to preside over a s 34(1) Conciliation Conference. The s 34 conciliation conference was held on 27 September 2022 and 18 October 2022.

5. In the Related Proceedings the Council and the Applicant entered into a s 34 Agreement on 24 October 2022 seeking the following orders:

1. The appeal upheld.

2. Consent is granted to Development Application LDA/2021/0003, as amended, for Torrens Title subdivision, and the use of existing structures on the Site for the purposes of a dual occupancy (attached) subject to condition in Annexure A.

6. In these proceedings a BCA Report was prepared by Mr Nouhad Hourani on 9 September 2022, on behalf of The Applicant in relation to BC2022/0023, which referred to the following relevant works requiring to be carried out in order to bring the building into BCA compliance:

1. Reconstruction of the lower part of the staircase and its handrail in 128A Wicks Road North Ryde and,

2. Installation of smoke detectors in the dwelling known as 128A Wicks Road North Ryde.

7. The Applicant lodged a further application for a Building Information Certificate, being BC2022/0034, for the entire building (comprising a house and secondary dwelling) via the NSW Planning Portal on 6 October 2022. This application was received by Council on 12 October 2022 (BIC Application BC2022/0034).

8. A letter dated 17 October 2022 was provided by Mr Nouhad Hourani, on behalf of the Applicant, confirming that outstanding matters of his BCA Report dated 9 September 2022 had been satisfactorily resolved and the dwellings were now BCA compliant. The outstanding matters were in relation to the staircase and associated handrail, as well as the installation of the required smoke detectors in the secondary dwelling.

9. At or after 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 upholding the appeal, and granting leave to substitute a new Building Information Certificate Application for the BIC.

Legislation

Environmental Planning and Assessment Act 1979

8.25   Appeals with respect to building information certificates

(cf previous s 149F)

(1)  An applicant—

(a)  who is dissatisfied with a council’s refusal to issue a building information certificate under Part 6, or

(b)  who is dissatisfied with a council’s failure to issue a building information certificate within the period prescribed by the regulations, or

(c)  who is dissatisfied with a notice from the council to supply information in connection with an application for a building information certificate,

may appeal to the Court.

(2)  The appeal may be made only within 6 months after the date on which the person is given notice of the decision appealed against or the end of the deemed refusal period referred to in subsection (1).

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

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

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

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

6.25   Issue, nature and effect of building information certificate

(cf previous ss 149D, 149E)

(1)  A building information certificate is to be issued by a council only if it appears that—

(a)  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—

(i)  to order the building to be repaired, demolished, altered, added to or rebuilt, or

(ii)  to take proceedings for an order or injunction requiring the building to be demolished, altered, added to or rebuilt, or

(iii)  to take proceedings in relation to any encroachment by the building onto land vested in or under the control of the council, or

(b)  there is such a matter but, in the circumstances, the council does not propose to make any such order or take any such proceedings.

(2)  A building information certificate is a certificate that states that the council will not make an order or take proceedings referred to in subsections (3) and (4).

(3)  A building information certificate operates to prevent the council—

(a)  from making an order (or taking proceedings for the making of an order or injunction) under this Act or the Local Government Act 1993 requiring the building to be repaired, demolished, altered, added to or rebuilt, and

(b)  from taking civil proceedings in relation to any encroachment by the building onto land vested in or under the control of the council,

in relation to matters existing or occurring before the date of issue of the certificate.

(4)  A building information certificate operates to prevent the council, for a period of 7 years from the date of issue of the certificate—

(a)  from making an order (or taking proceedings for the making of an order or injunction) under this Act or the Local Government Act 1993 requiring the building to be repaired, demolished, altered, added to or rebuilt, and

(b)  from taking civil proceedings in relation to any encroachment by the building onto land vested in or under the control of the council,

in relation to matters arising only from the deterioration of the building as a result solely of fair wear and tear.

(5)  However, a building information certificate does not operate to prevent a council from making a development control order that is a fire safety order or a building product rectification order (within the meaning of the Building Products (Safety) Act 2017).

(6)  An order or proceeding that is made or taken in contravention of this section is of no effect.

Environmental Planning and Assessment Regulation 2021

289   Building information certificates—the Act, Div 6.7

(1)  An application for a building information certificate must be made through the NSW planning portal.

(2)  A building information certificate must contain the following information—

(a)  a description of the building, or the part of the building, including the address,

(b)  the day on which the building, or the part of the building, was inspected,

(c) a statement that the council is satisfied about the matters specified in the Act, section 6.25(1),

(d) a statement that describes the effect of the certificate in the same terms as, or in substantially similar terms to, the Act, section 6.25,

(e)  the date of issue.

(3)  A building information certificate must be issued to an applicant through the NSW planning portal.

248   Deemed refusal period for Court appeals

(1)  For the purposes of the Act, section 8.22(2), the period of 40 days after an application under the Act, section 4.54 is made is prescribed.

(2) For the purposes of the Act, section 8.25(1)(b), the period of 40 days after the later of the following is prescribed—

(a)  the day on which the application for the building information certificate is made,

(b)  if the applicant receives a notice under the Act, section 6.26(2) to supply information—the day on which the information is supplied.

10. Under s 34(3)(a) and (b) 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 under s 8.25(3)(c) of the EPA Act to uphold the appeal and substitute Building Information Certificate BC/2022/0034 with the BIC. 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 in par [2] – [9] above and explained how the jurisdictional prerequisites have been satisfied.

11. 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(a) and (b) of the LEC Act:

1. The BIC was lodged with Council on 19 May 2022.

2. The Applicant lodged in accordance with the 40 days required to pass before the BIC could be classified as a deemed refusal pursuant to s. 248(1) of the Environmental Planning and Assessment Regulation 2021.

3. In accordance with s 8.25(1)(b) of the EPA Act the Applicant filed an appeal against Council’s deemed refusal on 29 June 2022.

4. These proceedings were heard with the Related Proceedings. In the Related Proceedings the plans and reports uploaded to the NSW Planning portal on 18 October 2022 and filed in court on 20 October 2022 resolved the issues raised in the Related Proceedings, and shall be relied upon in these proceedings. The plans and reports filed in the Related Proceedings are:

Document Description	Date	Plan No/Reference
GF – Proposed (DA)	06/10/2022	A302C, Rev. 5
L1/L2 – Proposed (DA	06/10/2022	A303C, Rev 5
Draft Torrens Title Subdivision Plan	06/10/2022	A303F, Rev 5
Elevations – North & South (Proposed)	06/10/2022	A306A Rev 5
Elevations – East & West (Proposed)	06/10/2022	A307A Rev 5
Section A	06/10/2022	A308, Rev 5
Section B (DA)	06/10/2022	A310, Rev 5
Demolition Plan	06/10/2022	A317, Rev 5
Waste Management Plan	06/10/2022	A318, Rev 5
Erosion & Sediment Control Plan	06/10/2022	A319, Rev 5
Landscape Plan	06/10/2022	SB_128WR_10, Issue N
Stormwater Notes	06/10/2022	C00, Rev C
Roof Plan with the Survey	05/10/2022	C01, Rev C
Roof Plan without the Survey	05/10/2022	C02, Rev C
Stormwater Details	05/10/2022	C03, Rev C
Unit A & Unit B RWT Details	05/10/2022	C04, Rev C
OSD & Bypass Areas Calculations	05/10/2022	C05, Rev C
Site Waste Minimisation and Management Plan (SWMMP)	16/12/2020
BASIX Certificates	06/10/2022	Certificates numbered 134603S and 1343732S

5. In these proceedings the BCA Report prepared by Mr Nouhad Hourani on 9 September 2022 identified outstanding issues, and his letter dated 17 October 2022 which confirmed that all outstanding BCA matters raised in his report 9 September 2022 had been satisfied.

6. On 6 October 2022 the Applicant lodged Building Information Certificate BC2022/0034 for the entire building via the NSW Planning portal, and lodged it with the Respondent on 12 October 2022.

7. The parties requested, during the adjourned s 34(1) conciliation conference on 18 October 2022, that I agree to leave being granted to substitute BIC BC2022/0034 for the BIC in these proceedings, thus effecting a resolution of all issues before the Court.

8. During the s 34(1) conciliation conference on 18 October 2022, Council issued Building Information Certificate No. BC2022/0034. Pursuant to s 6.25 of the EPA Act, the grant of BC2022/0034 has the effect that Council is prevented from making an order (or taking proceedings for the making of an order or injunction) under the EPA Act or the Local Government Act 1993 requiring the building to be repaired, demolished, altered, added to or rebuilt in relation to the matters existing or occurring before the date of issue of the Building Information Certificate on 18 October 2022.

12. 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)(a) and (b) of the LEC Act to dispose of the proceedings in accordance with the parties’ decision. I shall uphold the appeal pursuant to s 8.25(3)(c) of the EPA Act and pursuant to s 23 of the LEC Act grant leave for the Applicant to substitute Building Information Certificate No. BC/2022/0034 for the BIC.

13. The Court notes that Building Information Certificate No. BC/2022/0034 was issued by Ryde City Council on 18 October 2022.

14. The Court orders:

1. The amended plans and documents filed in the Related Proceedings form part of the documentation in these proceedings.

2. The appeal is upheld.

3. Pursuant to s 23 of the Land and Environment Court Act 1979, and s 8.25(3)(c) of the Environmental Planning and Assessment Act 1979, the Court grants leave for the Applicant to substitute Building Information Certificate No. BC/2022/0034 dated 18 October 2022 for Building Information Certificate application No. BC/2022/0023 dated 19 May 2022.

M Peatman

Acting Commissioner of the Court

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Decision last updated: 11 November 2022