GCorp Property Pty Ltd v The Council of the City of Sydney

[2019] NSWLEC 1048

Land and Environment Court

New South Wales

Medium Neutral Citation:	GCorp Property Pty Ltd v The Council of the City of Sydney [2019] NSWLEC 1048
Hearing dates:	2 and 7 February 2018; 2 October 2018; 6 December 2018; 5 February 2019
Date of orders:	05 February 2019
Decision date:	05 February 2019
Jurisdiction:	Class 1
Before:	Maston AC
Decision:	The Court orders: (1) The appeal is dismissed. (2) The exhibits may be returned. (3) Any question or claim as to costs of the proceedings should be made by motion to a Judge of the Court or the Registrar. (4) I direct that the Registrar provide a copy of this judgment to the Owners' Corporation when it is published on the Case Law website.
Catchwords:	Building Certificate – appeal against refusal – application to extend time for complying with directions of the Court – dismissal of proceedings
Legislation Cited:	Environmental Planning and Assessment Act 1979
Category:	Principal judgment
Parties:	GCorp Property Pty Ltd (Applicant) The Council of the City of Sydney (Respondent)
Representation:	Solicitors: D Arraj, Blackstone Waterhouse Lawyers (Applicant) A Simpson, City of Sydney Council (Respondent)
File Number(s):	2016/155222
Publication restriction:	No

Judgment

This decision was given as an extemporaneous decision. It has been revised and edited prior to publication.

1. COMMISSIONER: These proceedings were originally heard by me on 22 and 29 March 2017. They were commenced on the filing of the Class 1 application on 19 April 2016, in which the applicant, which I will refer to as GCorp, appealed against the refusal of the respondent council to issue a building certificate under Pt 8 of the Environmental Planning and Assessment Act 1979 (EPA Act). The circumstances giving rise to the proceedings are set out sufficiently in my judgment delivered on 4 May 2017. Initially, Mr S Nash of counsel appeared for the applicant and Mr A Pickles SC appeared for the Council. In later appearances the applicant's solicitors have appeared for GCorp and Mr Simpson solicitor has appeared for the Council.

2. Today Mr Latham appears for GCorp instructed by Mr Panicker. I did not make any final orders in my judgment of 4 May 2017 because the evidence indicated to me that it ought to be possible for the parties to provide a list of particular works that would be an acceptable response to the deficiencies relied upon by the Council and which in turn could be the basis for a direction to the Council to issue a building certificate in accordance with s 149F(3) of the EPA Act. I made directions designed to progress the matter by requiring the applicant to produce detailed plans and specifications for the extensive construction work needed to complete various parts of the building in a way that complied with the EPA Act and the Building Code of Australia and the recommendations of building experts who gave expert evidence in the proceedings.

3. The works required included mandatory fire safety works, which have to date remained incomplete, and structural work to both main facades, that is to both the Euston Road and Euston Lane frontages. Relying on the Affidavit of Mr Panicker, Mr Latham informed me that the required fire safety works had been completed but there is no direct evidence in the affidavit of Mr Panicker, sworn 4 February 2019 that proves that this was the case such as by providing certification of a suitably qualified expert.

4. Mr Simpson pointed out that there had been no certification provided to the Council for any of the fire safety works or the structural works required since the actual hearing of the appeal. All work has yet to be done and certified.

5. In Par 8 of Mr Panicker's affidavit it states, referring to a period of time commencing on 7 February 2018, that "The fire services works identified by the parties' joint experts have been completed." Reference was then made to a period of four weeks needed to obtain the BASIX certificate and fire services certificates for the completed works. I note that there is no evidence of the fire safety expert who had been retained by GCorp on previous occasions proving the completion of the works and I will take Mr Panicker's statement as his understanding of the position. This is a difficulty because Mr Latham informed me that no face to face meeting with the "client" (referring to the director Mr George Sarkis of GCorp) had taken place at any time from the beginning of the current year to date.

6. The plans and specifications required were intended to enable me to settle a draft order direction to the Council relating to the building certificate sought.

Progress since 4/5/2017

7. The directions I made included a requirement for the applicant to prepare, file and serve on the respondent the plans and specifications encompassing all works listed in exhibit "M" in the proceedings in a form suitable for construction and certification. The matter was stood over for argument, if necessary, as to the date by which the particular works could be completed and certified.

8. Initially it was put by GCorp that the works could have been completed by "no later than 31/5/2017" and my directions were drawn accordingly.

9. The affidavit of Mr Panicker seeks a further extension of time to comply with items 1 and 3 of the consent orders dated 2/10/2018 to the 4th September 2019 and with respect to item 2 of those consent orders an extension to 5/3/2019.

10. For the reasons given elsewhere in this Judgment I decline to grant the further extensions sought.

11. The directions in the judgment were not complied with by GCorp, and there then followed a series of further applications seeking further directions and extensions of time. For example, after May 2017 to 17 November '17 the matter was returned before me on at least four occasions but the directions in the judgment were not complied with by GCorp.

12. This scenario was repeated throughout the whole of 2018. On each such occasion a variety of reasons and excuses were given as to why nothing had been done and when action could be taken. By the end of 2018 nothing significant had been achieved. I therefore made final directions in which the matter was stood over to Tuesday 5/2/2019 as the final opportunity I was prepared to give to GCorp to comply with the directions made.

13. The delays have prevented me from framing or settling the "terms and conditions of an appropriate direction for the Council to issue a building certificate".

14. This is a completely unsatisfactory state of affairs. I am therefore not prepared to permit the proceedings to be delayed or prolonged further. I can only infer from the applicant's conduct that it is unable or unwilling to supply the information and documents required and carry out the necessary steps. Mr Latham informed me and to some extent this is covered by the affidavit that was handed up to me, being the affidavit of Mr Panicker, of 4 February 2019, that no face‑to‑face meeting between GCorp and its representatives had occurred this year. Mr Simpson informs me that no certification of work to date has been received by the Council.

15. Mr Simpson agreed there had been no certification provided to the Council since the directions on 4/5/2017 concerning any of the fire safety work or the remedial work required. He discussed this position with Mr Panicker and accepted that some fire safety work had been physically carried out but none of the work had actually been certified as completed.

16. Mr Simpson referred to the on-site view, which I attended, that took place on the 6/12/2018 in the presence of representatives of the parties and the parties’ experts (in the case of the Council Mr L Jefferies its fire safety officer). He stated that on the view the fire safety chute was inspected as well as the enclosure of the garbage area and work carried out to the fire booster room and booster pump and stickers and notes had been attached to various fire safety services and these were also inspected. However, Mr Simpson stated that “the actual certification documents that were required for all the works, in a sense a list, that all the works that were outstanding had now been completed and certified, had not been provided to the Council. I think that's fair. I think that's an agreed statement.”

17. In Pars 10 and 11 of Mr Panicker's affidavit, refer to the outstanding works in pars 8 and 9, which were required to be completed by 30/01/2019. It states:

“For the reasons below this was not possible. The applicant is a special purpose vehicle. It is directed by Mr Sarkis. It was created for the project at the site. It does not have the means by which to finance the outstanding works.”

18. Paragraph 12 of Mr Panicker’s affidavit states:

“Without any admissions, the works completed to date and the further outstanding works are being completed by Cordell Constructions Pty Ltd - a company directed by Mr Sarkis. Cordell Construction was the original builder of the works - but is not under any obligation to complete the outstanding works.”

19. There are several further troubling matters as to GCorp's position. Firstly, although the documentary evidence shows that the applicant was the owner of the building in question, Mr Nash of counsel stated during the hearing that a Strata Plan had been registered with respect to the land and building. No detailed argument was raised as to any consequence of the strata subdivision for the present case. However, the practical consequence is that the current owner of the Common Property of the building is the Owner's Corporation, which is not a party to these proceedings. Significant work to the Common Property will be involved in this case. One very important aspect of this is the choice of external cladding for the building which must be certified fire safe for the building in accordance with the EPA Act.

20. Also the remedial works have the capacity to directly affect the owners of the individual lots in the Strata Plan. The important consequence of this is that there is no immediate imperative for GCorp to fund, even if it were able (which appears not to be the case), to carry out the work.

21. Another matter of concern became apparent during the hearing and that is that an interim occupation certificate had been issued for the strata units in the building. This of course heightens the public risk. The interim occupation certificate that was issued was by the private certifier Stanly Spyrou on 5/6/2015 contrary to s 109H of the EPA Act. Mr Spyrou was the subject of complaints and investigations relating to the erection of the subject building. These complaints were heard by the Building Professionals Board whose decision was made on 16 June 2016. The Board determined to reprimand Mr Spyrou, fined him in the sum of $50,000 and imposed significant conditions for a period of three years on his acting as a certifier of certain work, limited to certain narrow categories.

Orders

22. In all of these circumstances I am not satisfied that it is appropriate to delay these proceedings any longer and I therefore make the following orders:

1. The appeal is dismissed.

2. The exhibits may be returned.

3. Any question or claim as to costs of the proceedings should be made by motion to a Judge of the Court or the Registrar.

4. I direct that the Registrar provide a copy of this judgment to the Owners' Corporation when it is published on the Case Law website.

……………………….

J Maston

Acting Commissioner of the Court

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Decision last updated: 08 February 2019