Kunhi v Blacktown City Council

[2013] NSWLEC 1076

Land and Environment Court

New South Wales

Medium Neutral Citation:

Kunhi v Blacktown City Council [2013] NSWLEC 1076

Hearing dates:

28 February 2013

Decision date:

28 February 2013

Jurisdiction:

Class 1

Before:

Brown C

Decision:

In Appeal No.11044 of 2012, the orders of the Court are:

1. The Appeal is upheld.

2. On the satisfactory completion of the fire safety works required by conditions2.1-2.14 of development consent no. 12-1138 the Respondent is to issue a building certificate for the premises, 6 Montrose Street, Quakers Hill, in respect to the upstairs kitchen and other works identified in Universal Property Group Drawing No. CC02 Revision R02 dated 21 June 2012.

3. There be no order as to costs.

In Appeal No.11045 of 2012, the orders of the Court are:

1. The Appeal is upheld.

2. Development Application No. 12-1138 seeking approval for the use of the Principal and secondary dwelling under the provisions of State Environmental Planning Policy (Affordable Rental Housing) 2009 at 6 Montrose Street, Quakers Hill and for the carrying out of fire safety works at the premises is approved in accordance with the conditions in Annexure "A".

3. There be no order as to costs.

Catchwords:

APPEALS: two separate but related appeal in relation to an existing two-storey dwelling - refusal of an application for a Building Certificate to authorise a kitchen that has been installed on the upper level of the existing dwelling - refusal of a development application for a secondary dwelling located within the existing dwelling

Legislation Cited:

Building Code of Australia
Environmental Planning and Assessment Act 1979
Land and Environment Court Act 1979

Category:

Principal judgment

Parties:

Shama Kunhi (Applicant)
Blacktown City Council (Respondent)

Representation:

Mr M Cotton, solicitor (Applicant)
Mr T O'Connor, solicitor (Respondent)
HWL Ebsworth Lawyers (Applicant)
Houston Dearn O'Connor (Respondent)

File Number(s):

11044 of 2012, 11045 of 2012

Judgment

1. COMMISSIONER: These are two separate but related appeals in relation to an existing two-storey dwelling comprising seven bedrooms, study, double garages and various living areas located at 6 Montrose Street, Quakers Hill (the site).

1. Appeal No.11044 of 2012 is an appeal against the refusal by Blacktown City Council (the council) of an application for a Building Certificate pursuant to s 149A of the Environmental Planning and Assessment Act 1979 to authorise a kitchen that has been installed on the upper level of the existing dwelling.

1. Appeal No.11045 of 2012 is an appeal against the refusal by the council of a development application for a secondary dwelling located within the existing dwelling.

1. The appeal was subject of conciliation conferences on 17 December 2012, 18 January 2013 and 28 February 2013 under s 34 of the Land and Environment Court Act 1979 (the Court Act). As no agreement was reached, the conciliation conference was terminated pursuant to s 34(4)(a). The parties consented to me disposing of the proceeding forthwith pursuant to s 34(4)(b)(i) and on the basis of what occurred at the conciliation conferences pursuant to s 34(4)(b)(ii).

1. At the previous conciliation conferences the parties reviewed the contentions raised by the council and discussed potential solutions. While a number of contentions were satisfactorily addressed, the issue of fire safety remained and it was agreed that expert evidence would be required to address the council's concerns. This resulted in a Joint Fire and Life Safety Report prepared by Mr Daniel Levy, for the applicant, and Conjoint Professor Michael Wynn-Jones for the council. The report identified the fire and life safety non-compliances applicable to a Class 2 residential building containing two dwellings and a garage and provides an Alternative Solution, as recognised by the Building Code of Australia (BCA) demonstrating that the proposal will comply with the relevant and life safety Performance Requirements in the BCA. The report provided conditions of consent that reflected the performance-based life and fire safety solution for the proposed development. The conditions were acceptable to the applicant and the council.

1. The parties however disagreed on other conditions of approval proposed by the council. The conditions are conditions 5.3(c), 5.3(d) and 5.3(e):

Condition 5.3(c)

5.3(c) All key operated locks to all doors to bedrooms shall be removed within 7 days and thereafter key operated locks shall not be installed to any internal doors to bedrooms.

1. Mr O'Connor submits that the condition is appropriate given the previous leasing of individual rooms in the dwelling and that security for the bedrooms can be adequately addressed though normal door locks that do not require a key to lock the doors. Mr Cotton submits that the keyed locks were installed when the current owner purchased the property and that there are cultural reasons for the key-operated locks on the bedroom doors.

1. I agree with the submissions of Mr O'Connor so the condition should remain.

Condition 5.3(d)

5.3(d) There shall be the following maximum number of tenants/occupiers of the dwellings at any one time:

Principal Dwelling - 10

Secondary Dwelling - 4

1. Mr O'Connor submits that the condition is appropriate given the previous leasing of individual rooms in the dwelling and the specific fire conditions. Mr Cotton submits that it would be unreasonable to place limitations on the number of people who could occupy a residential dwelling.

1. I generally agree that it would be unreasonable to place conditions on the number of people who can use a residential dwelling however the condition should be amended to specify that only the designated bedrooms can be used as bedrooms in the principal dwelling and the secondary dwelling. The condition should read:

(d) Principal Dwelling has a maximum of 5 bedrooms and no other rooms shall be used as bedrooms other than those shown as bedrooms in the approved plans.

Condition 5.3(e)

5.3(e) Within one month of the date on this approval a privacy screen shall be constructed to the upper rear bedroom to provide privacy for the adjoining dwelling, 8 Montrose Street Quakers Hill. The screen may comprise external louvres or lattice to the full window or it may comprise the application of a film of frosting to the glass at a minimum height of 1.5 m from the floor of that room.

1. Mr O'Connor submits that the condition is appropriate given that it is possible to view into the rear yard of the adjoining property whereas Mr Cotton submits that the room is still to be used as a bedroom, consistent with the council approval of the dwelling, and if overlooking was a problem then it should have been addressed as part of the original approval. Given that any overlooking would occur from a bedroom window, rather than a room with greater activity, such as a living room, I accept that the condition is unnecessary and can be deleted.

1. In Appeal No.11044 of 2012, the orders of the Court are:

1. The Appeal is upheld.

2. On the satisfactory completion of the fire safety works required by conditions 2.1-2.14 of development consent no. 12-1138 the Respondent is to issue a building certificate for the premises, 6 Montrose Street, Quakers Hill, in respect to the upstairs kitchen and other works identified in Universal Property Group Drawing No. CC02 Revision R02 dated 21 June 2012.

3. There be no order as to costs.

1. In Appeal No.11045 of 2012, the orders of the Court are:

1. The Appeal is upheld.

2. Development Application No. 12-1138 seeking approval for the use of the Principal and secondary dwelling under the provisions of State Environmental Planning Policy (Affordable Rental Housing) 2009 at 6 Montrose Street, Quakers Hill and for the carrying out of fire safety works at the premises is approved in accordance with the conditions in Annexure "A".

3. There be no order as to costs.

___________

G T Brown

Commissioner of the Court