Itaoui v Wollongong City Council

[2020] NSWLEC 1260

Land and Environment Court

New South Wales

Medium Neutral Citation:

Itaoui v Wollongong City Council [2020] NSWLEC 1260

Hearing dates:

Conciliation conference on 18, 19, 21 February, 27 March and 6 May 2020

Date of orders:

17 June 2020

Decision date:

17 June 2020

Jurisdiction:

Class 1

Before:

Gray C

Decision:

Proceedings 2019/103570
Refer to orders at [25]

 

Proceedings 2019/103571
Refer to orders at [26]

 

Proceedings 2019/106545
Refer to orders at [27]

 

Proceedings 2019/381640
Refer to orders at [28]

 

Proceedings 2019/381659
Refer to orders at [29]

 Proceedings 2019/381676
Refer to orders at [30]

Catchwords:

APPEAL – building information certificates – principal dwelling and stables, secondary dwelling and rural supplies building – buildings erected or altered without development consent – conciliation conference – agreement reached

  APPEAL – development applications – for works to dwelling and stables – for use of and works to secondary dwelling – for use of and works to rural supplies and sales building – conciliation conference – agreement between the parties – orders

Legislation Cited:

Biodiversity Conservation Regulation 2017
Environmental Planning and Assessment Act 1979
Land and Environment Court Act 1979
Local Government Act 1993
State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004
State Environmental Planning Policy No 55 – Remediation of Land
Wollongong Local Environmental Plan 2009

Cases Cited:

Owners of Strata Plan 60693 v Anneliese Pty Limited [2006] NSWSC 210
Phillips v Walsh (1990) 20 NSWLR 206

Texts Cited:

Building Code of Australia

Category:

Principal judgment

Parties:

Zeina Itaoui (Applicant)
Wollongong City Council (Respondent)

Representation:

Counsel:
T To (Applicant)
M Staunton (Respondent)

  Solicitors:
Mills Oakley (Applicant)
Bartier Perry (Respondent)

File Number(s):

2019/381640; 2019/381659; 2019/381676; 2019/103570; 2019/103571; 2019/106545

Publication restriction:

No

Judgment

1. COMMISSIONER: This decision concerns 6 appeals by Zeina Itaoui with respect to various works and structures at 750 Princes Highway, Darkes Forest. Three of the appeals relate to development applications made to Wollongong City Council (“the Council”), and three concern applications made to the Council for building information certificates. The final orders in each of these appeals, outlined in [25]-[30] below, are made as a result of agreements between the parties that were reached following a conciliation conference.

2. The appeals with respect to the development applications are lodged pursuant to s 8.6 of the Environmental Planning and Assessment Act 1979 (“EPA Act”), and the appeals with respect to the building information certificates are lodged pursuant to s 8.25. In exercising the functions of the consent authority on the appeal, the Court has the power to determine the development applications pursuant to ss 4.15 and 4.16 of the EPA Act. The Court also has broad powers with respect to the appeals concerning the building information certificates, pursuant to s 8.25(3) of the EPA Act. Section 8.25(3) provides:

(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.

The structures on the site

3. There are a number of structures located on the site. An aerial photograph of the structures is shown at Figure 1.

4. Using the lettering in Figure 1 (replicated from the architectural plans that are the subject of the agreement), Building A is the principal dwelling, which the Council says has been altered without development consent. The applicant seeks development consent to rectify the works to the dwelling, including the removal of 2 kitchens, increasing the openings between rooms and works required to achieve compliance with the Building Code of Australia (“BCA”).

5. Building B is a building for the purpose of horse stables, which the Council says has been altered without development consent. The applicant seeks to rectify the works by the addition of a horse yard, horse washing room and cleaning rooms, internal reconfiguration and removal of bathrooms, relocation of water troughs and the addition of a garage.

6. Building C is a secondary dwelling that the Council says was constructed contrary to the development consent for the same. Building D is a concrete slab. The applicant seeks consent for use of Building C as a rural supplies facility, as well as for alterations to Building C to remove internal walls, remove the second kitchen, relocate rooms, change the layout of the proposed rural supplies store and to achieve compliance with the BCA, and for the removal of the existing concrete slab (Building D).

7. Building E is another dwelling, which the Council says has been constructed without development consent. The applicant seeks development consent for the use of this structure as a secondary dwelling, as well as for associated works including roads and car parking, the construction of a new carport, and landscaping, tree removal to accommodate asset protection zones and vehicle manoeuvring, and works required to achieve compliance with the BCA. Building J is the water tank and pump shed associated with that dwelling, and the applicant similarly seeks development consent for use of that water tank and pump.

8. Building F is a concrete slab associated with an approved storage shed, which is now proposed to be removed.

9. Building G is a brick building that the Council says has been constructed without development consent, and is now sought to be demolished and removed.

10. Building H is a small concrete slab and shed. Building I is some bird cages.

The appeals

11. The appeals seek to regularise the works already carried out by the issue of building information certificates with respect to Buildings A, B, C and E, and by obtaining development consent for the prospective uses of the buildings and the works described above.

12. Specifically, the appeals are as follows:

• Proceedings number 2019/381640 were commenced by the applicant on 4 December 2019, appealing against the Council's refusal of a building information certificate application for works undertaken to Building C (the secondary dwelling that is now sought to be used for the purpose of rural supplies).

• Proceedings number 2019/381659 were commenced by the applicant on 4 December 2019, appealing against Council’s refusal of a building information certificate application for works undertaken to Buildings A and B (the approved principal dwelling and partially constructed horse stables).

• Proceedings number 2019/381676 were commenced by the applicant on 4 December 2019, appealing against Council’s refusal of a building information certificate application for Building E (the proposed secondary dwelling and associated works).

• Proceedings number 2019/103570 were commenced by the applicant against Council on 3 April 2019, appealing against the Council’s refusal of a development application for alterations and additions to Building A (principal dwelling) and Building B (horse stables), as well as for the prospective use of Building B (DA 2019/36).

• Proceedings number 2019/103571 were commenced by the applicant on 3 April 2019, appealing against the Council’s refusal of a development application for use of Building E as a secondary dwelling, and associated works (DA 2019/35).

• Proceedings number 2019/106545 were commenced by the applicant on 5 April 2019, appealing against the Council’s refusal of the development application for the change in use of Building C from a secondary dwelling to a rural supplies and sales building, and associated works (DA 2019/37).

13. A number of the remaining structures are agreed to be removed as part of the grant of the development consents the subject of the appeals. This is set out below in my outline of the agreement reached between the parties in each appeal.

The conciliation conferences

14. A hearing of the six appeals commenced on 17 February 2020. Following an adjournment of the hearing, the Court arranged a conciliation conference between the parties with respect to the six appeals, pursuant to s 34(1) of the Land and Environment Court Act 1979 (“LEC Act”). The conciliation conference was then held on 18, 19, 21 February, 27 March and 6 May 2020. I presided over the conciliation conference, at which all six appeals were dealt with together.

15. Following the conciliation conference, agreements under s 34(3) of the LEC Act were reached between the parties as to the terms of a decision in each of the proceedings that was acceptable to the parties. The agreements were filed on 13 and 14 May 2020, and agreed jurisdictional notes in support of the agreements were provided by email on 11 June 2020.

The agreements reached

16. In each of the building information certificate appeals (2019/381640, 2019/381659 and 2019/381676), the decision agreed upon requires works to be carried out in accordance with a number of the conditions of the development consents to be granted as a result of the agreements reached in the development appeals (2019/103570, 2019/103571 and 2019/106545). The agreements in each of the development appeals are each for leave to be granted to amend the development application, and for the grant of development consent subject to conditions of consent pursuant to s 4.16(1) of the EPA Act.

17. Specifically, the agreements in the development appeals can be summarised as follows:

• In proceedings 2019/103570 (Buildings A and B, principal dwelling and stables), the decision agreed upon is for leave to be granted to amend the development application and for development consent to be granted subject to conditions of development consent (DA 2019/36). The conditions of consent require, inter alia, the carrying out of remedial works and the obtaining of a building information certificate, as well as the demolition and removal of Building G.

• In proceedings 2019/103571 (Building E, secondary dwelling), the decision agreed upon is for leave to be granted to amend the development application and for development consent to be granted for use of and works to the secondary dwelling subject to conditions of development consent (DA 2019/35). The conditions of consent require, inter alia, the carrying out of remedial works and the obtaining of a building information certificate, as well as the boarding up of Building G, the removal of all services from the slab of Building D, and the demolition and removal of Buildings F and H. Further, the conditions require the slab of Building D to be demolished and removed within 12 months of the issue of a construction certificate.

• In proceedings 2019/106545 (Building C, rural supplies), the decision agreed upon is for leave to be granted to amend the development application and for development consent to be granted for a change of use to a rural supplies and sale building, and alterations and additions including the construction of a new rural supplies storage building, subject to conditions of development consent (DA 2019/37). The conditions of consent require, inter alia, the carrying out of remedial works and the obtaining of a building information certificate.

18. The agreements in the building information certificate appeals can be summarised as follows:

• In proceedings 2019/381640 (Building C, rural supplies), the decision agreed upon is for leave to be granted to the applicant to amend the application and for the Council to be directed to issue a building information certificate once the applicant provides certification that the works required by conditions 2 and 6 of DA 2019/37 have been carried out. Those conditions are to be imposed in development appeal proceedings 2019/106545, and require the carrying out of a list of specific remedial works (condition 2) and the installation of an on-site sewage management system (condition 6).

• In proceedings 2019/381659 (Buildings A and B, principal dwelling and stables), the decision agreed upon is for leave to be granted to the applicant to amend the application and for the Council to be directed to issue a building information certificate once the applicant provides certification that the works required by conditions 3 and 7 of DA 2019/36 have been carried out. Those conditions are to be imposed in development appeal proceedings 2019/103570, and require the carrying out of a list of specific remedial works (condition 3) and the installation of an on-site sewage management system (condition 7).

• In proceedings 2019/381676 (Building E, secondary dwelling), the decision agreed upon is for leave to be granted to the applicant to amend the application and for the Council to be directed to issue a building information certificate once the applicant provides certification that the works required by conditions 3 and 7 of DA 2019/35 have been carried out. Those conditions are to be imposed in development appeal proceedings 2019/103571, and require specific remedial works (condition 3) and the installation of an on-site sewage management system (condition 7).

19. In each of the building information certificate appeals, the terms of the decision agreed by the parties includes a grant of liberty to apply to extend the time for compliance to carry out the works in the event that there is any delay in the Council issuing approvals under s 68 of the Local Government Act 1993, which is required for installation and operation of the on-site sewage management systems.

Whether each of the proceedings can be disposed of in accordance with the agreements

20. As the presiding Commissioner, I am satisfied that the decisions to grant development consent in each of the development appeals, subject to conditions of consent, are decisions that the Court can make in the proper exercise of its functions (this being the test applied by s 34(3) of the LEC Act). I form this state of satisfaction as each of the jurisdictional preconditions identified by the parties is met, for the following reasons:

• Whilst the site has split zoning across the RU2 Rural Landscape and E2 Environmental Conservation zones pursuant to the Wollongong Local Environmental Plan 2009 (“WLEP 2009”), the development applications are for works and uses within the RU2 zone, in which development for the purpose of dwelling houses, secondary dwellings and rural supplies are all uses that are nominated as permissible with development consent. The horse stables are for the use of the residents of the dwelling and the secondary dwelling. I am therefore satisfied that the development in each of the development appeals is for the purposes of a permissible use.

• None of the three proposed developments breach any development standards that arise pursuant to the WLEP 2009 or any other applicable environmental planning instrument.

• The secondary dwelling complies with the permissible gross floor area (“GFA”) permitted by cl 5.4(9) of the WLEP 2009, based on the primary dwelling size of 349.5m2 as permitted by the existing development consent DA2014/1541. Clause 5.4(9) therefore allows the secondary dwelling to have a GFA of up to 234m2, with which the proposed secondary dwelling complies (with a GFA of 145.7m2).

• Each development consent includes conditions of consent that require works to be undertaken to the structures to ensure compliance with the BCA.

• An Endangered Ecological Community (“EEC”) exists on the site. The proposed developments do not require removal of the EEC and propose clearing of vegetation in an amount below the threshold to require a Biodiversity Development Assessment Report under the Biodiversity Conservation Regulation 2017, as set out in the Flora and Fauna Assessment prepared by Cumberland Ecology dated 18 February 2020.

• The site is suitable for the proposed use in accordance with State Environmental Planning Policy No 55 – Remediation of Land. The applicant has provided a Detailed Environmental Site Assessment prepared by Environmental Consulting Services dated 18 February 2020 which confirms that the site is suitable for the proposed uses.

• Clause 5.10 of the WLEP 2009 does not preclude the grant of development consent in the development appeals, as an Aboriginal Objects Due Diligence Assessment prepared by Urbis dated 12 November 2019 confirmed that no further archaeological investigations are necessary for the site as no Aboriginal objects, relics and/or site, nor any landscape features with potential for Aboriginal objects were identified.

• A BASIX certificate has been issued for the primary and secondary dwellings pursuant to the terms of State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004.

• Further, with respect to previous consents granted and to ensure that the site will not be used for multi-dwelling housing (which is a prohibited use in the zone):

1. With respect to the development consent to be granted for the primary dwelling and stables, development consent DA2014/1541 was previously granted in relation to the construction of, and use, of the structures erected upon the site. A condition to be imposed on the consent for the primary dwelling and stables (proceedings 2019/103570) requires the surrender of that Development Consent DA 2014/1541 prior to an occupation certificate being issued for the primary dwelling and stables.

2. With respect to the development consent to be granted for the secondary dwelling, the site benefits from an existing approval for a secondary dwelling. A condition to be imposed on the consent for the secondary dwelling (proceedings 2019/103571) will require the surrender of that Development Consent DA 2014/1541 prior to an occupation certificate being issued for the secondary dwelling, to ensure that the site will not contain two secondary dwellings.

3. With respect to the development consent to be granted for the rural supplies building, development consent DA2014/1541 was previously granted in relation to the construction of, and use, of a secondary dwelling, which is the structure the subject of this development application. A condition to be imposed on the consent for the rural supplies building will require the surrender of that development consent DA 2014/1541 prior to an occupation certificate being issued for the rural supplies store.

• In exercising the functions of the consent authority, the Court has the power to impose the agreed conditions of consent in each matter, pursuant to ss 4.16(1) and 4.17 of the EPA Act.

21. Similarly, I am satisfied that the decisions to direct the Council to issue building information certificates upon the carrying out of the remedial works and the installation of on-site sewage management systems are decisions that the Court can make in the proper exercise of its functions. I form this state of satisfaction as these decisions fall within the broad power of the Court set out in s 8.25(3) of the EPA Act to “direct the council to issue a building information certificate in such terms and on such conditions as the Court thinks fit” (at (a)), and “make any other order that it considers appropriate” (at (c)).

22. I also consider that the grant of liberty to apply is appropriate in circumstances where compliance with the orders could be delayed if there is any delay in the Council’s approval of the application under s 68 of the Local Government Act1993. As outlined by McLelland J in Phillips v Walsh (1990) 20 NSWLR 206 at 210, “In a final order, liberty to apply is often expressly reserved as authority to make a subsequent application for the purpose of dealing with a matter involved in or arising in the course of working out the order.” The exercise of liberty to apply requires notice to be given to the other party, usually in the form of a Notice of Motion (see, for example, Owners of Strata Plan 60693 v Anneliese Pty Limited [2006] NSWSC 210 at [8]-[10]).

The requirement to dispose of the proceedings

23. Having reached the state of satisfaction that the decision agreed upon in each proceedings is one that the Court could make in the exercise of its functions, s 34(3)(a) of the LEC Act compels me to “dispose of the proceedings in accordance with the decision”. The LEC Act also requires me to “set out in writing the terms of the decision” (s 34(3)(b)).

24. In making the orders to give effect to the agreement between the parties in each development application appeal, I was not required to make, and have not made, any assessment of the merits of the development applications against the discretionary matters that arise pursuant to an assessment under s 4.15 of the EPA Act. Similarly, in making the orders to give effect to the agreement between the parties in each appeal concerning a building information certificate, I was not required to make, and have not made, any assessment of the merits of the grant of a building information certificate.

Orders

Proceedings 2019/103570 (Primary dwelling and horse stables development appeal)

25. The Court orders that:

1. The Applicant is granted leave to amend Development Application DA-2019/36 and to rely upon the following amended plans and documents:

Architectural Plans prepared by ES Engineering dated 25 March 2020, Issue J:

Drawing 18164-601, Proposed site location plan

Drawing 18164-602, Site plan

Drawing 18164-603, Primary Dwelling Proposed floor plan

Drawing 18164-604, Primary Dwelling Elevations

Drawing 18164-605, Primary Dwelling Schedule of colours and section A

Drawing 18164-605A, Primary Dwelling Gross Floor Area Calculation Plan

Drawing 18164-606, Horse stables proposed floor plan – part 1

Drawing 18164-607, Horse stables proposed floor plan – part 2

Drawing 18164-608, Horse stables elevations – part 1

Drawing 18164-609, Horse stables – schedule of colours

Drawing 18164-610, Horse stables – section B

Drawing 18164-611, Horse Stables Gross Floor Area Calculation Plan – Part 1

Drawing 18164-612, Horse Stables Gross Floor Area Calculation Plan – Part 2

Drawing 18164-613, Streetscape elevation plan

Landscape Plans prepared by Site Design & Studios dated 23 April 2020, Issue J:

Drawing L-01, Landscape masterplan

Drawing L-02, Detail plan primary dwelling and stables

Drawing L-03, Planting details

Stormwater and Wastewater Plans prepared by Martens dated 18 February 2020

Concept Stormwater Management Plan, Map 04

Onsite Wastewater Management Plan, Map 05

Additional Documents 

Onsite Wastewater Management report prepared by Martens dated 4 March 2020

BCA Assessment Report prepared by Building Innovations Australia (Building A) dated 11 December 2019

BCA Assessment Report prepared by Building Innovations Australia (Building B) dated 11 December 2019

Vegetation Management Plan prepared by Cumberland Ecology dated 18 February 2020

Flora & Fauna Assessment prepared by Cumberland Ecology (v003, Final v2) dated 18 February 2020

Detailed Environmental Site Assessment prepared by Environmental Consulting Services dated 18 February 2020

Plan of Management (Horse Stables) prepared by Ali Hammoud of Planzone dated 28 February 2020

2. The Applicant is to pay the Respondent’s costs thrown away pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979 as agreed or assessed.

3. The Appeal is upheld.

4. Development Application DA-2019/36 for the use of an existing residential building and the use of an existing building for horse stables on land known as 750 Princes Highway, Darkes Forest, is approved subject to the conditions of consent set out at Annexure ‘A’.

Proceedings 2019/103571 (Secondary dwelling development appeal)

26. The Court orders that:

1. The Applicant is granted leave to amend Development Application DA-2019/35 and to rely upon the following amended plans and documents:

Architectural Plans prepared by ES Engineering dated 25 March 2020, Issue J:

Drawing 18164-701, Proposed site location plan

Drawing 18164-702, Site plan

Drawing 18164-703, Secondary Dwelling (Lakehouse) Proposed floor plan

Drawing 18164-704, Secondary Dwelling (Lakehouse) Elevations

Drawing 18164-705, Secondary Dwelling (Lakehouse) Section view

Drawing 18164-706, Secondary Dwelling (Lakehouse) Proposed Floor Plan

Drawing 18164-707, Rainwater tanks / pump shed floor plan

Landscape Plans prepared by Site Design & Studios dated 23 April 2020, Issue J:

Drawing L-01, Landscape masterplan secondary dwelling (lakehouse)

Drawing L-02, Detail plan secondary dwelling secondary dwelling (lakehouse)

Drawing L-03, Planting details

Stormwater and Wastewater Plans prepared by Martens dated 18 February 2020

Concept Stormwater Management Plan, Map 04

Onsite Wastewater Management Plan, Map 05

Additional Documents 

Onsite Wastewater Management report prepared by Martens dated 4 March 2020

BCA Assessment Report prepared by Building Innovations Australia (Building E) dated 11 December 2019

Vegetation Management Plan prepared by Cumberland Ecology dated 18 February 2020

Flora & Fauna Assessment prepared by Cumberland Ecology (v003, Final v2) dated 18 February 2020

Detailed Environmental Site Assessment prepared by Environmental Consulting Services dated 18 February 2020.

2. The Applicant is to pay the Respondent’s costs thrown away pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979 as agreed or assessed.

3. The Appeal is upheld.

4. Development Application DA-2019/35 for the use of an existing structure as a secondary dwelling on land known as 750 Princes Highway, Darkes Forest, is approved subject to the conditions of consent set out at Annexure ‘A’.

Proceedings 2019/106545 (Rural supplies building development appeal)

27. The Court orders that:

1. The Applicant is granted leave to amend Development Application DA-2019/37 and to rely upon the following amended plans and documents:

Architectural Plans prepared by ES Engineering dated 25 March 2020, Issue J:

Drawing 18164-501, Proposed site location plan

Drawing 18164-502, Site plan

Drawing 18164-503, Rural Supplies Building Existing Floor Plan

Drawing 18164-504, Rural Supplies Building Proposed floor plan

Drawing 18164-505, Rural Supplies Building Elevations

Drawing 18164-506, Rural Supplies Building Schedule of colours and sections

Drawing 18164-506A, Rural Supplies Building Gross Floor Area Calculation Plan

Drawing 18164-512, Proposed front fence and signage pole details

Drawing 18164-513, Streetscape elevation plan

Landscape Plans prepared by Site Design & Studios dated 23 April 2020, Issue J:

Drawing L-01, Landscape masterplan

Drawing L-02, Detail plan rural supplies

Drawing L-03, Planting details

Stormwater and Wastewater Plans prepared by Martens dated 18 February 2020

Concept Stormwater Management Plan, Map 04

Onsite Wastewater Management Plan, Map 05

Additional Documents 

Onsite Wastewater Management report prepared by Martens dated 4 March 2020

BCA Assessment Report prepared by Building Innovations Australia (Building C) dated 11 December 2019

Flora & Fauna Assessment prepared by Cumberland Ecology (v003, Final v2) dated 18 February 2020

Detailed Environmental Site Assessment prepared by Environmental Consulting Services dated 18 February 2020

Plan of Management (Rural Supplies) prepared by Ali Hammoud of Planzone dated 18 February 2020

2. The Applicant is to pay the Respondent’s costs thrown away pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979 as agreed or assessed.

3. The Appeal is upheld.

4. Development Application DA-2019/37 for the change of use of a secondary dwelling building to a rural supplies and sales building including alterations and additions and construction of a new rural supplies storage building over existing concrete slab on land known as 750 Princes Highway, Darkes Forest, is approved subject to the conditions of consent set out at Annexure ‘A’.

Proceedings 2019/381640 (Building information certificate appeal for the rural supplies building)

28. The Court orders that:

1. The Applicant is granted leave to amend the Building Certificate Application Number BC-2019/64 to rely upon the following documents:

1. Drawing 18164-109 – 18164-111, Schedule of proposed compliance upgrades, prepared by ES Engineering dated 11 February 2020; and

2. BCA Assessment Report prepared by Building Innovations Australia (Building C) dated 11 December 2019.

2. The Appeal is upheld.

3. The Applicant is to comply with conditions 2 and 6 of DA-2019/37 (“Consent”) within 6 months of the date of these Orders.

4. The Applicant is to provide certification to the Respondent that the works required by order (3) have been completed in accordance with the Consent within 6 months of the date of these Orders.

5. The Applicant is to provide certification by a suitably qualified consultant to the Respondent of the matters listed in Annexure A.

6. Within 14 days of the Applicant complying with orders (3), (4) and (5), the Respondent is directed to issue a building information certificate (NCC-BCA Class 5 “Office” & 6 “Retail”) for the building the subject of Building Information Certificate Application Number BC-2019/64.

7. The Applicant is to make the building available for inspection by the Respondent’s authorised officers and consultants within 7 days of compliance with orders (3), (4) and (5).

8. Liberty to apply to extend the time for compliance with orders (3) and (4) in the event that there is a delay by the Respondent in issuing the section 68 approvals as required by DA-2019/37.

Proceedings 2019/381659 (Building information certificate appeal for the primary dwelling and stables)

29. The Court orders that:

1. The Applicant is granted leave to amend the Building Certificate Application Number BC-2019/66 to rely upon the following documents:

1. Drawing numbers 18164-209 - 18164-211, Schedule of proposed compliance upgrades, prepared by ES Engineering dated 11 February 2020; and

2. BCA Assessment Report prepared by Building Innovations Australia (Building C) dated 11 December 2019.

2. The Appeal is upheld.

3. The Applicant is to comply with Condition 3 and 7 of DA-2019/36 (“Consent”) within 6 months of the date of these Orders.

4. The Applicant is to provide certification to the Respondent that the works required by order (3) have been completed in accordance with the Consent within 6 months of the date of these Orders.

5. The Applicant is to provide certification by a suitably qualified consultant to the Respondent of the matters listed in Annexure A.

6. Within 14 days of the Applicant complying with orders (3), (4) and (5), the Respondent is directed to issue a building information certificate (Primary Dwelling: NCC-BCA Class 1a) (Stables: NCC-BCA Class 7b “farm shed” and subject to further evidence) for the building the subject of the Building Information Certificate Application Number BC-2019/66.

7. The Applicant is to make the building available for inspection by the Respondent’s authorised officers and consultants within 7 days of compliance with orders (3), (4) and (5).

8. Liberty to apply to extend the time for compliance with orders (3) and (4) in the event that there is a delay by the Respondent in issuing the section 68 approvals as required by DA-2019/36.

Proceedings 2019/381676 (Building information certificate appeal for the secondary dwelling)

30. The Court orders that:

1. The Applicant is granted leave to amend the Building Certificate Application number BC-2019/65 to rely upon the following documents:

1. Drawings 18164-306 – 18164-308, Schedule of proposed compliance upgrades, Issue E, prepared by ES Engineering dated 11 February 2020; and

2. BCA Assessment Report prepared by Building Innovations Australia (Building E) dated 11 December 2019.

2. The Appeal is upheld.

3. The Applicant is to comply with condition 3 and 7 of DA-2019/35 (“Consent”) within 6 months of the date of these Orders.

4. The Applicant is to provide certification to the Respondent that the works required by order (3) have been completed in accordance with the Consent within 6 months of the date of these Orders.

5. The Applicant is to provide certification by a suitably qualified consultant to the Respondent of the matters listed in Annexure A.

6. Within 14 days of the Applicant complying with orders (3), (4) and (5), the Respondent is directed to issue a building information certificate (NCC-BCA Class 1a) for the building the subject of Building Information Certificate Application Number BC-2019/65.

7. The Applicant is to make the building available for inspection by the Respondent’s authorised officers and consultants within 7 days of compliance with orders (3), (4) and (5).

8. Liberty to apply to extend the time for compliance with orders (3) and (4) in the event that there is a delay by the Respondent in issuing the section 68 approvals as required by DA-2019/35.

………………………

J Gray

Commissioner of the Court

Proceedings 2019/103570

Annexure A (268185, pdf)

Proceedings 2019/103571

Annexure A (233697, pdf)

Proceedings 2019/106545

Annexure A (239493, pdf)

Proceedings 2019/381640 

Annexure A (115521, pdf)

Proceedings 2019/381659

Annexure A (114343, pdf)

Proceedings 2019/381676

Annexure A (108994, pdf)

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Decision last updated: 18 June 2020