O'Brien, M C v City of Sydney Council

[2007] NSWLEC 185

Land and Environment Court

of New South Wales

CITATION:	O'Brien, M C v City of Sydney Council [2007] NSWLEC 185
PARTIES:	APPLICANT: Michael Christopher O'Brien RESPONDENT: City of Sydney Council
FILE NUMBER(S):	11041 of 2006
CORAM:	Watts C at 1
KEY ISSUES:	Building Certificate :- Building and fire safety
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979, ss 121B, 121ZK
DATES OF HEARING:	05/04/2007
EX TEMPORE JUDGMENT DATE:	5 April 2007
LEGAL REPRESENTATIVES:	APPLICANT: Mr R Farago, solicitor SOLICITORS: Langes Lawyers RESPONDENT: Mr M Fozzard, solicitor SOLICITORS: City of Sydney Council, City Prosecutor's Office

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Watts C

5 April 2007

11041 of 2006 - Michael Christopher O'Brien v City of Sydney Council

JUDGMENT

1 This is an appeal under s 121ZK of the Environmental Planning and Assessment Act 1979, (the EPA Act) against the decision of the City of Sydney Council (the council) to issue an order under s 121 of the EPA Act in respect of a building approval to alter and add to an existing two-storey terraced house at Lot 2, DP 205647, being No 5 Renwick Street, Alexandria.
2 I have concluded that the consent orders are satisfactory and may be issued.

The land
3 The land is situated on the northern side of Renwick Street. It has a frontage of 4.5m, depth of 27.64m and an area of 113.8m2.
4 Erected on the land is a two-storey terrace dwelling, abutting a single -storey terraced dwelling at No 3 Renwick Street, Alexandria, (‘the adjoining terraced building’).
5 Surrounding land use is predominantly residential.

Relevant planning controls
6 Section 76A(1) of the EPA Act, provides that if an environmental planning instrument provides that specified development may not be carried out except with development consent, then a person must not carry out the development unless:
· such a consent has been obtained and is in force; and
· the development is carried out in accordance with the consent and the instrument.

7 Section 4 of the EPA Act defines ‘environmental planning instrument’ to include a local environmental plan.
8 Section 4 of the EPA Act defines ‘development’ as the erection of a building or the carrying out of a work.
9 Section 4 of the EPA Act defines ‘building’ to include part of a building and any structure or part of a structure.
10 The site is zoned 2(b) “Residential (Medium Density)” under the South Sydney Local Environmental Plan (‘the LEP’) and development such as that proposed to be carried out by the applicant is only permissible with the respondent's consent.
11 The South Sydney Development Control Plan 1997, (‘the DCP’), applies to the land and supplements the LEP by providing more detailed guidelines and controls for all development under the LEP.
12 A building approval is taken to be a development consent issued granted under the EPA Act, by virtue of Clause 45 of the Environmental Planning and Assessment (Savings and Transitional) Regulation 1998 ('the savings provisions’).
13 The building approval is taken to be a construction certificate issued under the EPA Act, by virtue of cl 46 of the savings provision.
14 The conditions of the building approval remain in force, by virtue of cl 46(2) of the savings provisions.
15 Item 15 of the Table in s 121(B) of the EPA Act provides that in circumstances where the development consent is not being complied with, then council may give an order to the owner to comply with development consent.

The council’s order
16 On 6 September 2006, the respondent council served a Notice of Intention to Give an Order on the applicant, under s 121H of the EPA Act.
17 On 4 October 2006, the respondent served an Order on the applicant, pursuant to s 121B of the EPA Act. It is this order that was appealed against.

The hearing
18 The appeal was filed on 1 November 2006 and is within time.
19 At the hearing the evidence on behalf of the respondent council and the applicant was received.
20 Mr Robert Carr, Area Building Compliance Officer, City of Sydney Council, prepared the statement of basic facts dated 11 December 2006.

The issues
21 In issue were the terms of building and fire safety.

The evidence and findings
22 The parties have reached agreement on the appropriate response to the building and fire safety issues and I am satisfied that the consent order arrived at is appropriate.
23 For the above reasons, the appeal is upheld by consent.

Modified orders
24 The modified orders under s 121B of the Act are those in Exhibit 1.

Consent orders
25 The consent orders are:
1. The appeal under s 121ZK of the Environmental Planning and Assessment Act 1979 is upheld.

2. Under s 121ZK of the Environmental Planning and Assessment Act 1979 the terms of the respondent’s order dated 4 October 2006 are modified in accordance with Annexure A.

3. The documents and evidence are retained.

The Court notes:
(a) That the applicant agrees to remove building debris arising out of building works at No 5 Renwick Street from the roof void in the adjoining property at No 3 Renwick Street, Alexandria.
(b) A copy of the orders (modified under Order 2 above) is attached and marked Annexure B to these Court orders for easier reference by the parties.
(c) That each party to these proceedings is to pay its own costs of the appeal.

S J Watts
Commissioner of the Court
sw

Modified order under s 121B of 4 October 2006

Annexure A

Michael Christopher O'Brien v City of Sydney Council

A. Delete the Paragraphs entitled ‘Circumstances’, ‘Terms’ ‘Reasons’ and ‘Period’ from the order, and insert the following in lieu:
Order No. 4(b)
Circumstances of Order No. 4(b)
Building is so dilapidated as to be prejudicial to its occupants or to persons or property in the neighbourhood.
Terms of Order No. 4(b)
1. Repair the cracks to the party wall located between the properties at 3 and 5 Renwick Street, Alexandria in the manner proposed in the report of Soliman Hanna & Associates, dated 30 October 2006 ('the Soliman Hanna report').
2. Provide a certificate at the completion of the works, the subject of the Soliman Hanna report, prepared by the supervising structural engineer that all works have been satisfactorily completed in accordance with the Building Code of Australia, relevant standards, and in satisfaction of the Soliman Hanna report.
Reasons for Order 4(b)
1. The Council has carried out inspections of the premises whereby it was revealed that there are cracks to the party wall between the premises.
2. A report prepared by Soliman Hanna Pty Limited dated 30 October 2000 has been received.
Period for compliance with Order 4
The period of compliance with Order 4 is 90 days from the date of issue of this Order.
Order No. 15
Circumstances of Order No. 15
The development consent is not being complied with. Terms of Order No. 15
1. Provide a certificate at the completion of all works, prepared by the supervising structural engineer in accordance with condition 15 of Building Approval issued on 29 August 1997, reproduced hereunder:

15. That a certificate shall be submitted at the completion of the proposed work from a registered structural engineer confirming that all structural work complies with the approved certified structural plans.

Reasons of Order No. 15
1. Condition 9 and 15 of Building Approval Q97-00680 approved by Council on 29 August 1997 are not being complied with.
2. A structural certificate is to be submitted by a qualified structural engineer confirming that all structural work complies with approved structural plans in particular the extension and additional loading of the party wall between 3 & 5 Renwick Street, in accordance with condition 15 of Building Approval Q97-00680 approved by Council on 29 August 1997.
Period for compliance with Order 15
Order 15 shall be complied with within 28 days of completion of the works required by Order 4.
B. Delete the ‘Notice of Right to Appeal’.
C. Insert the words ‘and order No. 4’, after the number ‘15’, under the heading Relevant Authority.

S J Watts
Commissioner of the Court
sw

Modified order under s 121B of 4 October 2006

Annexure B

Michael Christopher O'Brien v City of Sydney Council

Date: 5 April 2007
Mrs M O'Brien
5 Renwick Street ALEXANDRIA NSW 2015

REF: S047775 / CSM-60188
ORDER
This is an Order under the Environmental Planning and Assessment Act 1979 .
Premises: 5 Renwick Street, Alexandria NSW 2015.
You: You are the owner of the premises.
Order No. 4(b)
Circumstances of Order No. 4(b)
1. Building is so dilapidated as to be prejudicial to its occupants or to persons or property in the neighbourhood.
Terms of Order No. 4 (b)
1. Repair the cracks to the party wall located between the properties at 3 and 5 Renwick Street, Alexandria in the manner proposed in the report of Soliman Hanna & Associates dated 30 October 2006 (`the Soliman Hanna report').
2. Provide a certificate at the completion of the works, the subject of the Soliman Hanna report, prepared by the supervising structural engineer that all works have been satisfactorily completed in accordance with the Building Code of Australia, relevant standards, and in satisfaction of the Soliman Hanna report.
Reasons for Order 4:
1. The Council has carried out inspections of the premises whereby it was revealed that there are cracks to the party wall between the premises.
2. A report prepared by Soliman Hanna and Pty Ltd dated 30 October 2006 has been received.
Period for compliance with Order No 4
The period of compliance with Order No 4 is 90 days from the date of issue of this Order. Order No. 15
Circumstances of Order No. 15
1. The development consent is not being complied with.
Terms of Order No. 15
1. Provide a certificate at the completion of all works, prepared by the supervising structural engineer in accordance with condition 15 of Building Approval issued on 29 August 1997, reproduced hereunder:
15. That a certificate shall be submitted at the completion of the proposed work from a registered structural engineer confirming that all structural work complies with the approved certified structural plans.

Reasons of Order No. 15:
1. Condition 9 and 15 of Building Approval Q97-00680 approved by Council on 29 August 1997 are not being complied with.
2. A structural certificate is to be submitted by a qualified structural engineer confirming that all structural work complies with approved structural plans in particular the extension and additional loading of the party wall between 3 & 5 Renwick Street, in accordance with condition 15 of Building Approval Q97-00680 approved by Council on 29 August 1997.
Period for compliance with Order 15
Order 15 shall be complied with, within 28 days of completion of the works required by Order 4.
Failure to comply with the Order:
It is an offence pursuant to Section 125 of the Environmental Planning & Assessment Act 1979 to fail to comply with this Order. You are reminded that should the Order not be complied with, Council may commence legal proceedings in the Land and Environment Court of NSW seeking mandatory orders, costs and a penalty. The Act provides a maximum penalty of $1,100,000 and a maximum daily penalty of $110,000 for breaches of the Environmental Planning & Assessment Act 1979 .
Notes for your assistance:
These penalties are the maximum that the relevant Court can impose, and the Court has significant discretion in deciding the amount of any penalty below that maximum.
Should you require any further information please contact Robert Carr on 9246 7779 during office hours.
Relevant Authority:
The relevant legislative provisions are the Environmental Planning and Assessment Act 1979 Section 1216 - Order No. 15 and order No. 4.
Date issued: 5 April 2007.

S J Watts
Commissioner of the Court
sw