Graham v Waverley Council

[2007] NSWLEC 149

Land and Environment Court

of New South Wales

CITATION:

Graham v Waverley Council [2007] NSWLEC 149

PARTIES:

APPLICANT
Peter Graham

RESPONDENT
Waverley Council

FILE NUMBER(S):

11016 of 2006

CORAM:

Hussey C

KEY ISSUES:

Building Certificate :- Refusal to issue Building Certificate, conversion of attic space, fire safety amenity

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979
Waverley Local Environmental Plan 1996

DATES OF HEARING:

21/01/2007, 16/02/2007, 08/03/2007, 14/03/2007 and 23/03/2007

EX TEMPORE JUDGMENT DATE:

23 March 2007

LEGAL REPRESENTATIVES:

APPLICANT
Mr M. McMahon, solicitor
of ME McMahon & Associates

RESPONDENT
Mr S. Patterson, solicitor
of Wilshire Webb

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Hussey C

23 March 2007

11016 of 2006 Peter Graham v Waverley Council

This decision was given extemporaneously.
It has been revised and edited prior to publication.

JUDGMENT

1 This appeal was lodged against councils deemed refusal to issue a Building Certificate for a 6-unit development at 33-35 Simpson Street, Bondi.

2 The main reason for this refusal arises from alterations undertaken to the building by the incorporation of an effective 3rd bedroom area in the roof attic, whereas the approved development consent only allowed 2 bedrooms.

3 Concerns were raised about amenity, both internal and external privacy concerns for neighbours, together with fire safety issues.

4 A s96 Modification was approved by Council for a number of variations, which included the attic space being converted to non-habitable uses and the existing stairs being removed and replaced with a "pull down" style stairs.

5 All these variations have been accepted by the applicant, except the stairs, which it preferred to remain on the basis that they are safer.

6 Consequently, further discussion and consideration of the merits of various alternatives for the reversion of any use of the attic space for non- habitable purposes was undertaken.

7 The parties now agree to a set of conditions, which includes:

• removal of the existing skylights in the attic and replacement with exhaust fans,
• the installation of smoke alarms,
• imposition of a covenant on the Strata Plan to the effect that the attics are to be non-habitable,
• the registration of a By-Law in respect of the Strata Plan, which provides that the attics are to be non-habitable and this restriction is to be made available to all prospective occupants.

8 In summary, then, I am satisfied that when the identified outstanding work and alterations are completed, then a satisfactory level of safety and amenity should occur as envisaged by the original consent. Accordingly, the Building Certificate could then be issued.

9 I also note that the parties have agreed to Consent Orders, with the proviso that the outstanding work is be completed within 3 months. On the basis of the evidence presented to the Court, I am satisfied that these Consent Orders are now appropriate to be made.

1. The appeal is upheld.
2. Following compliance with the conditions set out in Annexure ‘A’ to the satisfaction of the Respondent’s Divisional Manager, Compliance, the Respondent is to issue the Applicant with a Building Certificate referable to the application for a Building Certificate dated 3 August 2006 received by the Respondent on or about 7 August 2006.
3. The conditions set out in Annexure A must be complied with within 3 months of the date of this order.
4. The exhibits are returned to the parties with the exception of 3, 4, A, B and C.

Note: The Court notes there is no order as to costs.

___________________

R Hussey
Commissioner of the Court
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