Kat v Waverley Council

Land and Environment Court

New South Wales

Medium Neutral Citation:

Kat v Waverley Council [2021] NSWLEC 1051

Hearing dates:

Conciliation conference on 21 July 2020, 3 September 2020, 15 October 2020, 4 November 2020 and 15 December 2020

Date of orders:

1 February 2021

Decision date:

01 February 2021

Jurisdiction:

Class 1

Before:

Peatman AC

Decision:

See orders at [10] below

Catchwords:

APPEAL – building information certificate – conciliation conference – building erected without development consent and not in compliance with the Building Code of Australia – non-compliance with fire regulations – performance compliance with Deemed to Satisfy provisions of the Building Code of Australia – agreement between the parties – orders made  

Legislation Cited:

Environmental Planning and Assessment Act 1979
Environmental Planning and Assessment Regulation 2000
Land and Environment Court Act 1979

Cases Cited:

Abou-Anton v City of Ryde Council [2018] NSWLEC 1334

Chami v Lane Cove Council [2015] NSWLEC 1003

Itaoui v Wollongong City Council [2020] NSWLEC 1260

Kekatos v Ku-ring-gai Council [2020] NSWLEC 1548

Marion McDowell and Associates Pty Ltd v Georges River Council [2018] NSWLEC 1109

Vigor Master Pty Ltd v Hornsby Shire Council [2019] NSWLEC 1110

Texts Cited:

Building Code of Australia

Category:

Principal judgment

Parties:

Nic Kat (Applicant)
Waverley Council (Respondent)

Representation:

Counsel:
M Jaku (Solicitor) (Applicant)
A Hudson (Solicitor) (Respondent)

Solicitors:
Jaku Legal (Applicant)
Wilshire Webb Staunton Beattie (Respondent)

File Number(s):

2019/354318

Publication restriction:

No

Judgment

1. COMMISSIONER: This appeal relates to the Respondent, Waverley Council (Council) refusing the Applicant’s Building Information Certificate Application No. BC-23/2019 (BICA) on 10 October 2019 for the sunroom adjacent to Lot 1 in Strata Plan 82661, known as 1/72 Plowman Street, North Bondi. The sunroom was built without Council approval.

1. the proceedings have been brought to the Court pursuant to s 8.25 of the Environmental Planning and Assessment Act 1979 (EPA Act).

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

3. the Court has power to hear and determine the matter pursuant to s 39 of the LEC Act and s 8.25(3) of the EPA Act.

4. On 29 July 2019, the Applicant lodged the BICA with Council. The BICA included a copy of the Registered Strata Plan dated 17 August 2009 together with a Change of Use By-Law (AG42576S). The Change of Use By-Law includes a Special By-Law No. 2. Clause 21.1 of Special By-Law No. 2 provides for the exclusive use and enjoyment for specified lots of “those parts of the common property described below”. Relevantly, it states “Lot/Unit 1 The shaded courtyard and sunroom area referred to in the Plan of Whelans Insites Pty Limited in Annexure “D” being part of Annexure “X” hereto”.

5. The sunroom area is located at the rear of the site and is attached to the main dwelling. The sunroom has an area of 21.87m². The sunroom area is a timber frame construction with the internal framing appearing to be constructed from a…