Ozaras v Inner West Council; John v Inner West Council

[2021] NSWLEC 1270

Land and Environment Court

New South Wales

Medium Neutral Citation:

Ozaras v Inner West Council; John v Inner West Council [2021] NSWLEC 1270

Hearing dates:

25-26 March 2021; 23 April 2021

Date of orders:

08 June 2021

Decision date:

08 June 2021

Jurisdiction:

Class 1

Before:

Peatman AC

Decision:

Proceedings 2020/226535

The Court orders that:

(1) The appeal is dismissed.

(2) Development Application DA/2020/0429 is refused.

(3) The exhibits are returned except for A-H, J, L, 1 (Tabs 6-9 pp 590-651), 2, 4, 5 and 7.

Proceedings 2020/226536

The Court orders that:

(1) The appeal is dismissed.

(2) Building Information Certificate dated 10 January 2020 is refused.

(3) The exhibits are returned except for A-H, J, L, 1 (Tabs 6-9 pp 590-651), 2, 4, 5 and 7.

Catchwords:

DEVELOPMENT APPLICATION – residential use – purpose – development for part walls and part roof – CDC approved for alterations and additions – residual buildings demolished prior to DA

BUILDING INFORMATION CERTIFICATE – waffle pod footings – relevant controls

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.1-4.4, 4.26, 4.27, 4.15, 4.16, 6.25, 8.10, 8.11, 8.14, 8.25

Environmental Planning and Assessment Regulation 2000, cl 113

Land and Environment Court Act 1979, ss 17 (d), 39

Leichhardt Local Environmental Plan 2013, cll 1.2, 2.3, 2.7, 4.3A(3)(a), 4.3(b), 4.4, 4.5, 4.6, 6.1-6.4

State Environmental Planning Policy (Exempt and Complying Development Codes) 2008, Parts 1 & 3

State Environmental Planning Policy No 55—Remediation of Land, cl 7(1)-(4)

Cases Cited:

Bonus Pty Ltd v Leichhardt Municipal Council (1954) 19 LGR (NSW) 232

Botany Bay City Council v Premier Customs Services Pty Ltd (2009) 172 LGERA 338; [2009] NSWCA 226

Chamwell v Strathfield Council (2007) 151 LGERA 400; [2007] NSWLEC 114

Gordon & Valich Pty Ltd v City of Sydney Council [2007] NSWLEC 780

Ozaras v Inner West Council [2020] NSWLEC 1573

Shire of Perth v O’Keefe (1964) 110 CLR 529; [1964] HCA 37

Waverley Council v Hairis Architects (2002) 23 LGERA 100; [2002] NSWLEC 180

Texts Cited:

Department of Urban Affairs & Planning & Environment Protection Authority, ‘Managing Land Contamination Planning Guidelines SEPP 55 – Remediation of Land 1998’

Leichhardt Development Control Plan 2013 Part C

Category:

Principal judgment

Parties:

Proceedings 2020/226535
Hasan Ozaras (Applicant)
Inner West Council (Respondent)

Proceedings 2020/226536
John Zindo (Applicant)
Inner West Council (Respondent)

Representation:

Counsel:
T Hale SC (Applicants)
C Norton (Respondent)

Solicitors:
ProActive Legal Pty Ltd (Applicants)
Inner West Council (Respondent)

File Number(s):

2020/226535; 2020/226536

Publication restriction:

No

Judgment

1. COMMISSIONER: These two proceedings are to be heard concurrently. In the first proceedings the Applicant has appealed against the deemed refusal of Development Application DA/2020/0429 dated 9 June 2020 pursuant to s 8.11(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) (Proceedings No. 2020/226535 shall be referred to as the “DA proceedings”). In the second proceedings the Applicant has appealed pursuant to s 8.25(1)(b) of the EPA Act against the deemed refusal of the Respondent (Council) to issue a Building Information Certificate dated 10 January 2020 (Proceedings No. 2020/226536 shall be referred to as the “BIC proceedings”). Both proceedings relate to the same parcel of land being Lot 2 in Deposited Plan 86805 known as 4 Alfred Street, Lilyfield NSW 2040 (the Land). The Land is a regular shaped allotment with a street width of 11.085m and a length of 31m. The area of the Land is 344.4m². The Land is sloped so that the southern portion of the site is approximately 2 metres higher than the levels at the northern boundary.

2. The Land has a history of industrial uses. Currently the site is a construction site that is subject to a Stop Works Order which was upheld by this Court in Proceedings No. 2019/293085^[1] (“Stop Works Order proceedings”). The improvements currently existing on site being a recently laid waffle pod slab with pipe penetration and a masonry retaining structure that pre-dated the new build works near the eastern boundary.

Figure 1 Historic photo of the site prior to demolition of buildings from Council’s property file ^[2]

Figure 2 Historic photo of the rear of the site prior to demolition of buildings from Council’s property file ^[3]

1. Ozaras v Inner West Council [2020] NSWLEC 1573

2. Ex 7 Joint Expert Report Town Planning, p 11 for Figure 1

3. Ibid, p 12 for Figure 2

3. At the parties’ request, I ordered that the evidence in proceedings no. 20/226535 be evidence in proceedings 20/226536 in so far as the evidence relates to both proceedings:

1. Orders that the evidence in proceedings no. 20/226535 be evidence in proceedings 20/226536 in so far as the evidence relates to both proceedings.

Chronology

4. The parties agreed the following chronology: ^[4]

   4. Ex “L” Agreed Chronology

Date

Description

23 November 2015

Ex 1 pp 590-591

Application to Phoenix Building Approvals for a Complying Development Certificate with respect to the Property for “ALTERATIONS AND ADDITIONS TO EXISTING DWELLING WITH SECONDARY DWELLING”.

31 May 2016

Ex 1 pp 593-595

A Complying Development Certificate (CDC) was issued by Phoenix Building approval with respect to the Property for “ALTERATIONS AND ADDITIONS TO EXISTING DWELLING WITH SECONDARY DWELLING”.

1 June 2016

The CDC was numbered 700-1015 when it was filed with Council.

CDC 700-1015 approved the structural drawings of Capital Engineering Consultants. The structural drawings contained the following statement: “ADEQUACY OF EXISTING FOOTINGS AND BRICKWORK TO BE CONFIRMED BY ENGINEER DURING CONSTRUCTION AND PRIOR TO LOADING.”

12 July 2018

The Applicant paid $20,000 to Council for s 94 contributions.

9 April 2019

The Applicant gave notice to commence building work pursuant to 86 EPA Act.

17 April 2019

Construction works commenced.

3 May 2019

Budget Demolitions notified Zindo Constructions that walls to be retained had become unstable.

3 May 2019

Demolition work was stopped. Work was done to make the Premises safe, to notify neighbours of risks of harm and place safety fencing on a neighbouring property.

3 May 2019

Zindo Constructions arranged to meet at the Premises with Mr Ozaras and an engineer employed by Capital Engineering and others.

7 May 2019

Mr Salah from Capital Engineering Consultants, attended at the Site, to assess the structure and advised –

(a) that the damaged walls could not bear the weight of the proposed new structure;

(b) that the damaged walls would have to be demolished and reinstated, and

(c) that new footings for the proposed reinstatement walls would also be required as the existing footings could not be verified.

7 May 2019

John Zindo, Director of Zindo Constructions, the builder, contacted and explained to Phoenix Building Approvals the advice received from Capital Engineering. Phoenix Building Approval advised Mr Zindo that the demolition of the damaged walls was permitted but that reinstatement walls must be built in the same position as, and of similar materials to, the pre-existing walls.

9 May 2019

Work recommenced at the Premises. The pre-existing walls were demolished.

24 May 2019

Capital Engineering Consultants issued new structural plans incorporating specifications for the reinstatement footings and walls:

Structural Plans ST15346 -S0-D, S1-D, S2A-D dated 22 May 2019.

27 May 2019

Demolition of the pre-existing footings commenced, and preparations were made for new footings for the reinstatement walls.

5 June 2019

Work was commenced to reinstate the pre-existing slab and to install new footings for the reinstatement walls.

31 July 2019

The Structural Adequacy Certificate was issued by Capital Engineering Consultants

22 August 2019

The Stop Work Order issued.

10 January 2020

Application for Building Information Certificate with respect to the Concrete Piers, waffle pod slab.

2 June 2020

Application for development consent to construct the parts of the walls and roof required by CDC 700 1015 to be retained but which had been demolished.

Agreed facts

5. The facts are not in dispute in this matter, and the agreed facts are as follows:

1. The Complying Development Certificate no. 700-1015 plans (CDC) are in Ex 1 ^[5] folios 596-604. The main dwelling house is coloured blue and the secondary dwelling house is coloured red in each of the CDC plans.

   5. Council’s Bundle of Documents filed 11/03/2021

Plan CDC01 Rev F Site Analysis Plan at folio 597 shows the existing site coverage in grey and the hardscape area in yellow

Plan CDC02 Rev F Lower Floor Plan at folio 598 shows in yellow: proposed modification or additions; and in grey: existing wall to remain.

Plan CDC03 Rev G Ground Floor Plan at folio 599 shows in yellow: proposed modification or additions; and in grey: existing wall to remain.

Plan CDC04 Rev F First Floor Plan at folio 600 shows all new building works.

Plan CDC05 Rev F Roof Plan at folio 601 shows all new roof plans except for the roof at the rear part of the existing building which was to remain.

Plan CDC06 Rev F North & South Elevations at folio 602

Plan CDC07 Rev F East & West Elevations at folio 603 identifies:

• In East Elevation: existing rear portion of the building to remain;

• In West Elevation: existing roof to remain; existing rear portion of the building to remain (meaning the front building); and existing wall to remain.

Plan CDC08 Rev F Section A-A at folio 604 shows the existing parts of the buildings to remain in grey as follows:

• Existing roof to remain

• Existing floor to remain

• Existing wall to be fire rated to achieve FRL 60/60/60 as per clause 3.7.1.3 & 37.1.5 of the BCA

• Existing floor to remain

2. Phoenix Building Approvals Pty Ltd appointed a Private Certifier and applied to Council for a Part 4A Certificate, Notice of Commencement and Appointment of Private Certified on 01/06/2016 – Ex 1 folios 622 – 633.

3. Engineering Plans showing the Waffle Pod on Ground Floor issued for Construction Certificate by Capital Engineering Consultants being drawing numbered S0 D, S1 D, S2 D and S2A D in Ex 1 folios 633-636.

DA proceedings circumstances

6. The proposal is to construct part building walls and part building roof that were demolished outside the scope of the CDC. The improvements currently existing Land consist of a waffle pod slab with pipe penetration and a masonry retaining structure that pre-dated the new build works near the eastern boundary. The surrounding streetscape consists mainly of single and two-storey attached and detached residential dwellings. Directly adjoining the subject site to the east is a car parking area that is associated with an industrial development that has frontages to Mackenzie Street and Moore Street (known as 87-89 Moore Street).

7. The DA was received by Council on 9 June 2020 as a development application to construct part building walls and part building roof. The DA was notified to surrounding residents from 18 June 2020 to 2 July 2020. The Applicant commenced proceedings in Court on 3 August 2020.

1. Contention 1: The development is not able to be undertaken as there is no consent, existing approval, lawful use available.

1. The DA states that: “The DA seeks development consent for building works only. The land use and design remain as approved under the CDC”.

2. The CDC did not authorise a change of use to a dwelling house but was approved on the basis of an existing dwelling house (which did not have consent) as the previous uses were industrial and commercial.

2. Contention 2: Fails to satisfy the requirements of State Environmental Planning Policy No 55—Remediation of Land (SEPP 55)

1. The DA lacks the reports necessary for Council to satisfy cl 7(1) of SEPP 55.

3. Contention 3: Floor space ratio (FSR), site coverage and landscaped area: Development Standards

1. The DA as shown on the plans exceeds the FSR, site coverage and landscaped area development standards.

2. Particulars ^[6]

   6. Ex 4 Council’s Statement of Facts and Contentions filed 28/08/20 p 8

“a. The proposed development as shown on the plans fails to comply with the floor space ratio development standard within clause 4.4 of Leichhardt Local Environmental Plan 2013 (LLEP2013).

“b.   The proposed development as shown on the plans fails to comply with the landscaped area for residential development in Zone R1 development standard within Clause 4.3A(3)(a) of LLEP2013.

“c.   The proposed development as shown on the plans fails to comply with the Site Coverage for residential development in Zone R1 Clause development standard within 4.3A(3)(b) of LLEP2013.

“d.   No 4.6 variation has been submitted with the application to justify variation to the development standards.

(Ex 1 Council’s Bundle of Documents pp 8-9 Leichhardt Local Environmental Plan 2013 (LLEP2013) cl 4.3A (1) Landscaped area for residential accommodation in Zone R1, and cl 4.4 Floor Space Ratio).

4. Contention 4: Building location zone and landscapes open space:

1. The proposed walls have front and rear setbacks that are inconsistent with the requirements of Leichhardt Development Control Plan 2013 (LDCP2013). The proposal fails to provide landscaped open space in the front and rear setbacks as is required by LDCP2013.

5. Contention 5: Public Interest   

BIC circumstances

8. On 31 May 2016, Rabih Nakhoul, Accredited Certifier PCA BPB 2205 of Phoenix Building Approvals Pty Ltd issued Complying Development Certificate No. 700-1015 (CDC) in relation to the Land for development described as: Alterations and additions to existing dwelling with attached secondary dwelling. Mr Nakhoul was appointed Principal Certifying Authority (PCA), and the CDC was registered on 1 June 2016 with the Council as:

• CDCP/2016/68 Alterations and additions to existing dwelling with attached secondary dwelling 01/06/2016

• PCAP/2016/229 Alterations and additions to existing dwelling with attached secondary dwelling 01/06/2016

9. Building works authorised by the CDC had commenced on the Land.

10. Council issued a Stop Work Order on 22 August 2020 which required all unauthorised building works to cease. Council’s reasons for giving the Stop Work Order included the demolition of the roof and the walls of the pre-existing building on the Land.

11. The concrete footings and waffle pod slab –

1. were not authorised by the CDC.

2. had been constructed prior to the Stop Work Order.

3. were required in part to enable the reconstruction of those parts of the walls and roof of the pre-existing building on the Land that the CDC required to be retained but which had been demolished.

12. The application for the BIC was made for the purposes specified in s 6.25 of the EPA Act so that –

1. those parts of the walls and roof of the pre-existing building on the Land that the CDC required to be retained, but which had been demolished, could be reconstructed, and

2. the building works authorised by the CDC could be recommenced. Council contends that the building works authorised by the CDC cannot be lawfully recommenced as it is not possible to complete those works in accordance with the CDC, given the unauthorised demolition works that have occurred. Further the Council points out that the Court in the Stop Work Order proceedings made a finding of fact at [19]^[7] that the demolition of the entire roof was not authorised and the CDC authorised the demolition of only part of the roof.

   7. Ozaras v Inner West Council [2002] NSWLEC 1573

13. On 12 July 2018, Hasan Ozaras, the owner of the Land, paid $20,000 to Council in payment of contributions pursuant to s 94 of the EPA Act which Council had levied pursuant to 68/2016/CDC. Council receipted those monies on 18 July 2018.

14. On 9 April 2019, Mr Nakhoul issued –

1. a Notice to Commence Building Works and Appointment of PCA (Notice to Commence), and

2. letters giving a 7-day Notice to Neighbours of demolition/building works which were about to commence.

15. From on or about 17 April 2019 works were carried out on the Land, initially in accordance with the CDC, but subsequently walls, the roof and the slab footings of the building were demolished not in accordance with the CDC. The Applicants say that the demolition occurred as a result of engineering advice that the walls were unsafe and could not support the proposed development. Additionally, work commenced to install new footings and a waffle pod slab on which the new walls would be constructed.

Contention 1: Building work was commenced in accordance with development consent

16. The Council does not know and cannot admit the extent to which any demolition or building work may have been done in accordance with the CDC but relies on the findings in the Stop Work Order proceedings at [19]-[20]^[8] to the effect that some of the demolition that occurred (being demolition of part of the roof and some of the walls) was not authorised by the CDC.

    8. Ibid

Contention 2: Building work was continued in accordance with professional advice

17. Council says that the Applicant should have sought development consent in order to carry out development other than in accordance with the CDC.

Contention 3: Public Interest

18. The Applicant’s proposed course is not to lawfully complete the CDC but proposes to rely on the CDC in circumstances where it is no longer possible to complete development in accordance with the CDC; and

19. The Applicant should submit a new development application for the proposed erection of a new dwelling.

Contention 4: Matters relating to future development

Development standards

20. Construction of a residence to the full extent of the concrete footings and waffle pod slab as shown on the plans would exceed the site coverage and landscaped area development standards, for residential development in Zone R1 – subcll 4.3A(3)(a) & (b) of the LLEP2013. If development consent is granted for construction of a new residence it is likely that the residence would be required to have a smaller footprint.   

SEPP 55 – Remediation of Land

21. The grant of consent to any development on the Land requires assessment under cl 7 of State Environmental Planning Policy No 55 Remediation of Land (SEPP 55). The Land has a history of industrial uses including uses similar to those in Schedule 1 of the Managing Land Contamination Planning Guidelines SEPP 55 - Remediation of Land. The presence of the waffle pod slab may interfere with any remediation of the site that may be required to make the site suitable for the purpose of any future development.

Contention 5: Outcome   

22. The Council notes that these proceedings are listed to be heard concurrently with the DA proceedings. If the appeal in the DA proceedings is dismissed, then Council says that this appeal should be dismissed.

The expert evidence

23. Mr Reda Salah gave a Statement of Evidence on behalf of the Applicant. His evidence was not challenged by the Council. Mr Salah is a structural engineer with Prime Engineering & Consultants and his Statement is dated 20 May 2020 ^[9] . Mr Salah inspected the Land in May 2019 in the company of both Applicants. The plans given to Mr Salah were prepared by Capital Engineering dated 1.10.2015 and numbered ST 15346, SO A, S1 A, S2 A, S3 A, S4 A, S5 A, S6A, S7 A, S8 A, and S9 A. Mr Salah observed that parts of the walls of the existing building had been demolished, consistent with the plans. To the best of his recollection, the advice he gave the Applicants was:

“(a)   The walls could not bear the weight of the proposed new structure.

(b)   The walls would have to be removed and reconstructed.

(c)   New piers would also be required as the adequacy of the existing piers to support the proposed new structure could not be verified.

(d)   Capital Engineering would provide further structural plans specifying the requirements for the new piers.”

9. Ex B Applicant’s Development Application Form, Appendix C

24. Mr Salah attached a series of 8 photographs showing the state of the Land, presumably as at the date of his inspection in May 2019.

25. I accept Mr Salah’s evidence except for the statement in par 6 of his report: “I observed that parts of the walls of the existing building on the Premises had been demolished. This work was consistent with the CEC plans”. The plans noted that the brick walls needed to be checked to see if they were structurally sound. There was no such notation for the steel walls which were part of the rear building.

26. Mr. John Romanous gave an Expert Report on behalf of the Applicants ^[10] (Ex “J”). Mr Romanous is a structural engineer. His report was challenged by the Council. On two occasions I asked Mr Hale SC to identify which parts of Mr Romanous’ Report he relied upon. On the second occasion Mr Hale stated that he relies on the whole of the Report for the purposes of the DA proceedings and the BIC proceedings. However, I note in par 2 of the Report’s Introduction:

“The purpose of this report is to be provide my opinion in the matter of the appeal against the deemed refusal of a Building Information Certificate (BIC) for the constructed waffle pod slab and piers in connection with …”

10. Ex J: Expert Report by Mr J Romanous filed 16/03/21

27. Having perused Mr Romanous’ Expert Report, I give it little weight as it does not particularise the engineering facts leading to his opinion – he relies upon the engineering advice given by Mr Salah in relation to the footings which I have already accepted. I further find no basis for Mr Romanous’ statement:

“Remediating the site with the waffle pod slab and piers is comparable with remediating the site with the original floor slab in place. Therefore, issuing of a BIC by Council for the new waffle slab and piers will not disadvantage Council nor is this contrary to the public interest.”

Expert town planning evidence in DA proceedings

The Town Planning Experts

28. Mr Glenn Apps for the Applicants and Mr Glen Hugo for the Council. Mr Apps and Mr Hugo prepared a Joint Expert Report Town Planning (Ex 7), and gave oral evidence on 26 March 2021.

Contention 1: The development is not able to be undertaken as there is no consent, existing approval, lawful use available

29. The town planning experts agreed (Ex 7 p 6):

1. Complying Development Certificate No. 700-1015 was issued by Phoenix Building Approvals, dated 31/05/2016 for “Alterations and additions to existing dwelling with attached secondary dwelling”.

2. A search of Council records under the DA tracker system on Inner West Systems revealed that there was no consent for use as a dwelling house when the CDC was issued as shown in Figure 1 below.

“D/1996/376

Development Application – Storage light assembly and wholesaling of giftware

Address: 4 Alfred Street, LILYFIELD NSW 2040

Status: Approved

Submitted: 16/10/1993

Determined: 18/02/1999

D/1999/421

Development Application – Light industrial use of rear unit: For motor trimmings (Fabrication and installation of leather seat trims on new and used car seats)

Address: 4 Alfred Street, LILYFIELD NSW 2040

Status: Refused

Submitted: 13/05/1999

Determined: 12/10/1999 Refused by Building and Development Ward

DAREV/1999/20

Review of Development determination – Use of premises for warehousing and light industrial (motor trimming)

Address: 4 Alfred Street, LILYFIELD NSW 2040

Status: Refused

Submitted: 13/10/1999

Determined: 23/11/1999 Refused by Ordinary Council

D/2000/316

Development Application – fitout and change of use of existing industrial factory to distribution and warehousing of vinyl products.

Address: 4 Alfred Street, LILYFIELD NSW 2040

Submitted: 27/04/2000

Determined 30/05/2001 Approved by Delegated Officer

CDCP/2016/68

Complying Development Cert (Private Certifier) – Alterations and additions to existing dwelling with attached secondary dwelling.

Address: 4 Alfred Street, LILYFIELD NSW 2040

Status: Approved Private Certifier

Submitted: 01/06/2016

PCAP/2016/229

Principal Certifying Authority (Private Certifier) – Alterations and additions to existing dwelling with attached secondary dwelling.

Address: 4 Alfred Street, LILYFIELD NSW 2040

Status: Approved Private Certifier

Submitted: 01/06/2016

Determined: 01/06/2016 Approved Private Certifier by Private Certifier

BC/2020/1

Building Certificate – Unauthorised demolition of roof structure and external and internal walls to a residential dwelling.

Address: 4 Alfred Street, LILYFIELD NSW 2040

Status: Lodgement

Submitted 10/01/2020”

Figure 1 above – Screen grab of Inner West Council’s historic DA tracker System

3. The last use appears to be a prohibited use given the site is zoned R1 General Residential under LLEP 2013, and assumed to rely on existing use rights at the time.

4. Any access to the existing use provisions of the EPA Act appears to have expired given that the site has not been used for an extended time for that use.

30. The town planners disagreed as to whether the development is able to be undertaken. Mr Apps for the Applicant is of the view that s 4.27(3) of the EPA Act applies and if a CDC for the erection of a building also specified the use of that building, then once that building is erected, it may be used for that purpose. Whilst Mr Apps agreed that the building is not yet erected, once erected he considered it can be used for the purpose of a dwelling and secondary dwelling as nominated in the CDC.

31. Mr Hugo for the Council referred to the terms of s 4.27(3) of the EPA Act –

“A complying development certificate that enables the erection of a building is sufficient to authorise the use of the building when erected for the purpose for which it was erected if that purpose is specified in the application for the complying development certificate, subject to s 6.9.”

32. Mr Hugo considers that as the building has not been erected that there is no use in effect on the site for the purpose of the development application. By demolishing the entire structure the Applicant has lost the benefit of any consent issued under the CDC which approved alterations and additions to an existing dwelling and an attached secondary dwelling, as the building no longer exists, and it is no longer possible to carry out alterations and additions to that building. As it is no longer possible to complete the works within the CDC there is no approved use.

Contention 2: Fails to satisfy the requirements of SEPP 55

33. The town planners agree that they have not been provided with any documentation that confirms any contamination assessment was carried out. Further no such document is referred to in the CDC approval. The town planners also agree that the site has a history of industrial uses, however, they disagree as to the precise nature of those uses.

1. Mr Apps is of the view that the former uses of the site are unclear with no evidence that “engine works” were carried out on site. Further the site is substantially capped.

2. Mr Hugo considers that if the Court is of the view that the CDC has not granted consent for the use at this point then the Court must consider subcll 7(1), (2), (3) and (4) of SEPP 55. In Mr Hugo’s opinion, the letter within Council’s file that states that the site has been used for car repair and storage gives sufficient information to conclude that purposes have occurred on the site that require testing of the site prior to development consent. In the absence of knowledge or incomplete knowledge subcl 7(4)(c) of SEPP 55 applies; or where there are gaps in knowledge then cl 7(3) applies. However, if the Court considers the issue of the CDC has granted consent for the residential use, the consent authority is still required to consider cl 7(1) of SEPP 55. Mr Hugo notes that the site is not fully capped, and the newly constructed waffle pod does not entirely cover the site. In Mr Hugo’s opinion, the application lacks sufficient information to allow the Court to be satisfy itself of the requirements of cl 7(1) of SEPP 55.

Contention 3: FSR, site coverage and landscaped development standards

34. The Land is subject to three development standards under LLEP2013.

Clause	Standard	Numerical standard
4.3A(3)(a)	Landscaped area	20%
4.3A(3)(b)	Site coverage	60%
4.4	FSR	0.7:1

35. The town planners disagree as to the application of the development standards to the works proposed in the DA proceedings.

1. Mr Apps for the Council considers that the works which are proposed in the DA proceedings do not offend the above standards. The proposed works are discrete works for part walls, part roof and correcting a boundary encroachment. Therefore, none of the above standards apply.

2. Mr Hugo is of the opinion that if the Court is minded to assess the DA proceedings as an amending application to the CDC, all of the development standards above are applicable. If the proposal is assessed in isolation from the CDC, the site has no improvements other than the unauthorised slab, the construction of the walls result in a non-compliance with the site area and landscaped area development standards.

Contention 4: Building location zone and landscaped open space

36. The controls within Part 3.2 of the LDCP2013 require the setbacks to the front and rear of the site to be in alignment with the average setback of the adjacent buildings. The town planners disagree as to the application of the above controls. In Mr Apps’ opinion, the proposed works are discrete works for part walls, part roof and correcting a boundary encroachment with approved works under the CDC. Mr Hugo disagreed, and stated –

1. If the application is considered as a separate application from the CDC, then the requirements for setbacks are applicable as there are no walls on the site. This triggers a consideration of the setback requirements within Part 3.2 of LDCP2013.

2. The proposed walls at the front of the site are located forward of the building location zone. The previous building was an anomaly in the streetscape and was located much further forward than the other buildings.

3. As the building has been demolished in its entirety there is no longer a concession in relation to the front and rear setbacks that would have been applicable for an alterations and additions application.

4. The proposed walls within the DA proceedings are located substantially forward and to the rear of the building location zone.

5. In Mr Hugo’s opinion, the development is not consistent with the applicable objectives O1-O4 within Part 3.2 of LDCP2013.

Contention 5: Public Interest

37. The town planners agree that “orderly development” is an object of the EPA Act. They agree that orderly development is achieved when development consent is sought, an assessment is carried out, and a consent obtained before building work is undertaken. They also agree that the issue of a consent for “alterations and additions” would take into consideration the existing building envelope and allow some concessions to be made with regard to setbacks, height and the like. However, the town planners disagree as to whether the granting of consent in the DA proceedings is in the public interest.

1. Mr Apps for the Council considers that the walls and roof proposed in the DA proceedings do not amend the CDC, rather they allow for the CDC to be completed. Mr Apps accepts that the proposed DA amends the CDC by correcting the encroachment on the rear boundary, but that component should not be withdrawn because that action would not be in the public interest.

2. Mr Hugo considers that orderly development requires that development consents are sought before building work is undertaken. If the consent in the DA proceedings is granted, it would provide a detrimental precedent that others may decide to use. This “alterations and additions” development application is really being sought for a new dwelling, and the controls applicable to a new dwelling should be applied, including SEPP 55. The application is not in the public interest.

Expert town planning evidence in BIC proceedings

38. The Council raised the following contentions.

Contention 1: Building work was commenced in accordance with development consent

39. Mr Apps appeared for the Applicant and Mr Hugo for the Council. The town planners agreed:

1. After noting the findings in Ozaras v Inner West Council [2020] NSWLEC 1573 at [19]-[20], that some of the demolition that occurred (being demolition of part of the roof and some of the walls) was not authorised by the CDC.

2. Neither town planners know, and therefore cannot identify, the extent to which any demolition or building work may have been done in accordance with the CDC.

Contention 2: Building work was continued in accordance with professional advice

40. The town planners disagreed whether the building work was carried out in accordance with professional advice, and in any event disagree as to the relevance of that advice.

1. Mr Apps relies on the professional advice of Mr Reda Salah as to the structural adequacy of the walls and whether they were to be retained. In this case, the rectification work comprises the demolition of the walls, the reinstatement of which has been incorporated into a development application seeking consent for their reinstatement. Mr Apps’ opinion is that:

1. The benefit of the CDC could have been retained if the wall was not unstable;

2. The benefit of the CDC would be lost if the Applicant did not seek to reinstate the walls in their approved location;

3. The benefit of the CDC should be retained by reinstating the walls in their approved position.

2. Mr Hugo’s opinion is that the Applicant should have sought development consent for a new dwelling. The reinstatement of the wall advantages the Applicant as he avoids the need for a development application for a new dwelling with the inherent requirements to comply with setbacks, site coverage, FSR, landscaped area, etc. In Mr Hugo’s opinion, the demolition of the entire structure means that the approval for alterations and additions can no longer be carried out as the building no longer exists to have alterations and additions done to it. The Applicant has in effect lost the benefit of the CDC, as it is no longer possible to carry out the alterations and additions due to the Applicant’s actions in demolishing the entire structure.

Contention 3: Public interest

41. The town planners repeat their comments in relation to public interest which they made in response to Contention 5 in the DA proceedings.

Contention 4: Matters relating to future development

42. The town planners agree that if a DA was lodged for a dwelling over the land, it would need to satisfy those provisions discussed in Contentions 3 and 4 of the DA proceedings, or at least need to justify any variations to those provisions with well-founded reasons. The town planners disagree in relation to the applicability of a site investigation pursuant to SEPP 55. Both town planners referred to their previous comments in relation to SEPP 55. Mr Hugo added: In the absence of appropriate testing via a detailed investigation (Stage 2 report) that demonstrated to the Court that the site does not contain contamination, it is inappropriate to issue a building information certificate and constrain Council’s power to issue an order.

Contention 5: Outcome

43. The town planners agree that in the event of the appeal in the DA proceedings being dismissed, it should follow that the appeal in the BIC proceedings should be dismissed.

Legislation

Environmental Planning and Assessment Act 1979

Section 4.2   Development that needs consent (cf previous s 76A)

(1) General If an environmental planning instrument provides that specified development may not be carried out except with development consent, a person must not carry the development out on land to which the provision applies unless—

(a)  such a consent has been obtained and is in force, and

(b)  the development is carried out in accordance with the consent and the instrument.

Maximum penalty—Tier 1 monetary penalty.

(2)  For the purposes of subsection (1), development consent may be obtained—

(a)  by the making of a determination by a consent authority to grant development consent, or

(b)  in the case of complying development, by the issue of a complying development certificate.

(3), (4)    (Repealed)

(5) Complying development An environmental planning instrument may provide that development, or a class of development, that can be addressed by specified predetermined development standards is complying development.

(6)–(9)    (Repealed)

Note—

Division 4.7 makes provision with respect to State significant development.

Section 4.4   Relationship of this Division to this Act (cf previous s 76C)

This Division is subject to the other provisions of this Act, unless express provision is made to the contrary.

Section 4.26 Carrying out of complying development (cf previous s 84A)

(1)  A person may carry out complying development on land if—

(a)  the person has been issued with a complying development certificate for the development, and

(b)  the development is carried out in accordance with—

(i)  the complying development certificate, and

(ii)  any provisions of an environmental planning instrument, development control plan or the regulations that applied to the carrying out of the complying development on that land at the time the complying development certificate was issued.

…

Section 4.27 What is a “complying development certificate”? (cf previous s 85)

(1) Terms of complying development certificate A complying development certificate is a certificate—

(a)  that states that particular proposed development is complying development and (if carried out as specified in the certificate) will comply with all development standards applicable to the development and with other requirements prescribed by the regulations concerning the issue of a complying development certificate, and

(b)  in the case of development involving the erection of a building, that identifies the classification of the building in accordance with the Building Code of Australia.

(2)  A complying development certificate may indicate different classifications for different parts of the same building.

Note—

To the extent to which it deals with the classification of a proposed building, a complying development certificate under this Division replaces the statement of classification formerly issued under the regulations under the Local Government Act 1993.

(3) Erection of buildings A complying development certificate that enables the erection of a building is sufficient to authorise the use of the building when erected for the purpose for which it was erected if that purpose is specified in the application for the complying development certificate, subject to section 6.9.

Note—

Section 6.9 prohibits the occupation or use of a new building unless an occupation certificate has been issued for the building.

…

Section 4.15 Evaluation (cf previous s 79C)

(1) Matters for consideration—general In determining a development application, a consent authority is to take into consideration such of the following matters as are of relevance to the development the subject of the development application—

(a)  the provisions of—

(i)  any environmental planning instrument, and

(ii)  any proposed instrument that is or has been the subject of public consultation under this Act and that has been notified to the consent authority (unless the Planning Secretary has notified the consent authority that the making of the proposed instrument has been deferred indefinitely or has not been approved), and

(iii)  any development control plan, and

(iiia) any planning agreement that has been entered into under section 7.4, or any draft planning agreement that a developer has offered to enter into under section 7.4, and

(iv)  the regulations (to the extent that they prescribe matters for the purposes of this paragraph),

(v)    (Repealed)

…

Section 4.16 Determination (cf previous s 80)

(1) General A consent authority is to determine a development application by—

(a)  granting consent to the application, either unconditionally or subject to conditions, or

(b)  refusing consent to the application.

…

(4) Total or partial consent A development consent may be granted—

(a)  for the development for which the consent is sought, or

(b)  for that development, except for a specified part or aspect of that development, or

(c)  for a specified part or aspect of that development.

(5)  The consent authority is not required to refuse consent to any specified part or aspect of development for which development consent is not initially granted under subsection (4), but development consent may subsequently be granted for that part or aspect of the development.

Note—

See also Division 4.4 for special procedures concerning concept development applications. …

(8)    (Repealed)

…

(11) Other restrictions on determination of development applications The regulations may specify other matters of a procedural nature that are to be complied with before a development application may be determined.

(12) Effect of issuing construction certificate If a consent authority or a registered certifier issues a construction certificate, the construction certificate and any approved plans and specifications issued with respect to that construction certificate, together with any variations to the construction certificate or plans and specifications that are effected in accordance with this Act or the regulations, are taken to form part of the relevant development consent (other than for the purposes of section 4.55).

(13), (14)    (Repealed)

Section 6.25 Issue, nature and effect of building information certificate (cf previous ss 149D, 149E)

(1)  A building information certificate is to be issued by a council only if it appears that—

(a)  there is no matter discernible by the exercise of reasonable care and skill that would entitle the council, under this Act or the Local Government Act 1993—

(i)  to order the building to be repaired, demolished, altered, added to or rebuilt, or

(ii)  to take proceedings for an order or injunction requiring the building to be demolished, altered, added to or rebuilt, or

(iii)  to take proceedings in relation to any encroachment by the building onto land vested in or under the control of the council, or

(b)  there is such a matter but, in the circumstances, the council does not propose to make any such order or take any such proceedings.

(2)  A building information certificate is a certificate that states that the council will not make an order or take proceedings referred to in subsections (3) and (4).

(3)  A building information certificate operates to prevent the council—

(a)  from making an order (or taking proceedings for the making of an order or injunction) under this Act or the Local Government Act 1993 requiring the building to be repaired, demolished, altered, added to or rebuilt, and

(b)  from taking civil proceedings in relation to any encroachment by the building onto land vested in or under the control of the council,

in relation to matters existing or occurring before the date of issue of the certificate.

(4)  A building information certificate operates to prevent the council, for a period of 7 years from the date of issue of the certificate—

(a)  from making an order (or taking proceedings for the making of an order or injunction) under this Act or the Local Government Act 1993 requiring the building to be repaired, demolished, altered, added to or rebuilt, and

(b)  from taking civil proceedings in relation to any encroachment by the building onto land vested in or under the control of the council,

in relation to matters arising only from the deterioration of the building as a result solely of fair wear and tear.

…

Section 8.10 Time within which appeals may be made

(1)  An appeal under this Division (except by an objector) may be made only within the following periods after the relevant date (being the date the decision appealed against is notified or registered on the NSW planning portal or the date of deemed refusal under section 8.11)—

(a)  6 months after the relevant date, if the relevant date occurs after the prescribed period, or

(b)  12 months after the relevant date, if the relevant date occurs—

(i)  during the prescribed period, or

(ii)  during the 6-month period immediately before the prescribed period.

(3)  In this section—

prescribed period means the period commencing on 25 March 2020 and ending on 25 March 2022.

Section 8.11 Circumstances in which consent taken to have been refused for purposes of appeal rights (cf previous s 82)

(1)  A consent authority that has not determined an application for development consent (or for the modification of a development consent) within the period prescribed by the regulations for the determination of the application is, for the purpose only of this Division, taken to have determined the application by refusing development consent (or refusing to modify development consent) when that period ends.

…

Section 8.14 Powers of Court on appeals (cf previous s 39(6A) Land and Environment Court Act)

(1)  In addition to any other functions and discretions that the Court has apart from this subsection, the Court has, for the purposes of hearing and disposing of an appeal under this Division, all the functions and discretions which the consent authority whose decision is the subject of the appeal had in respect of the matter the subject of the appeal.

(2)  The decision of the Court on an appeal under this Division is, for the purposes of this or any other Act or instrument, taken to be the final decision of that consent authority and is to be given effect to accordingly.

(3)  If the consent authority was under this Act required to consult or obtain the concurrence of another person or body before making the decision the subject of an appeal under this Division—

(a)  the Court may determine the appeal whether or not the consultation has taken place and whether or not the concurrence has been granted, and

(b)  in a case where the concurrence has been granted—the Court may vary or revoke any conditions imposed by that person or body or may impose any conditions that could have been imposed by that person or body.

…

Section 8.25 Appeals with respect to building information certificates (cf previous s 149F)

(1)  An applicant—

(a)  who is dissatisfied with a council’s refusal to issue a building information certificate under Part 6, or

(b)  who is dissatisfied with a council’s failure to issue a building information certificate within the period prescribed by the regulations, or

(c)  who is dissatisfied with a notice from the council to supply information in connection with an application for a building information certificate,

may appeal to the Court.

(2)  The appeal may be made only within 6 months after the date on which the person is given notice of the decision appealed against or the end of the deemed refusal period referred to in subsection (1).

(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.

Environmental Planning and Assessment Regulation 2000

Clause 113 Applications taken to be refused (cf clause 70B of EP&A Regulation 1994)

(1) For the purposes of section 8.11(1) of the Act, a development application is taken to be refused if a consent authority has not determined the application within the deemed refusal period, being—

(a)  40 days, except in the case of development referred to in paragraph (b) or (c), or

…

Note—

This clause does not apply in respect of a development application if section 8.7 of the Act does not apply to the application

Land and Environment Court Act 1979

Section 17 Class 1—environmental planning and protection appeals

The Court has jurisdiction (referred to in this Act as “Class 1” of its jurisdiction) to hear and dispose of the following—

…

(d)  appeals, objections and applications under sections 4.55, 8.7, 8.8, 8.9, 8.16, 8.18, 8.21, 8.22, 8.23 and 8.25 of, and clause 35 of Schedule 5 to, the Environmental Planning and Assessment Act 1979,

…

Section 39   Powers of Court on appeals

(1)  In this section, appeal means an appeal, objection, reference or other matter which may be disposed of by the Court in proceedings in Class 1, 2 or 3 of its jurisdiction.

(2)  In addition to any other functions and discretions that the Court has apart from this subsection, the Court shall, for the purposes of hearing and disposing of an appeal, have all the functions and discretions which the person or body whose decision is the subject of the appeal had in respect of the matter the subject of the appeal.

(3)  An appeal in respect of such a decision shall be by way of rehearing, and fresh evidence or evidence in addition to, or in substitution for, the evidence given on the making of the decision may be given on the appeal.

(4)  In making its decision in respect of an appeal, the Court shall have regard to this or any other relevant Act, any instrument made under any such Act, the circumstances of the case and the public interest.

(5)  The decision of the Court upon an appeal shall, for the purposes of this or any other Act or instrument, be deemed, where appropriate, to be the final decision of the person or body whose decision is the subject of the appeal and shall be given effect to accordingly. ……

(6A)    (Repealed)

(7)  The functions of the Court under this section are in addition to and not in derogation from any other functions of the Court.

…..

State Environmental Planning Policy No. 55 – Remediation of Land

Clause 7   Contamination and remediation to be considered in determining development application

(1)  A consent authority must not consent to the carrying out of any development on land unless—

(a)  it has considered whether the land is contaminated, and

(b)  if the land is contaminated, it is satisfied that the land is suitable in its contaminated state (or will be suitable, after remediation) for the purpose for which the development is proposed to be carried out, and

(c)  if the land requires remediation to be made suitable for the purpose for which the development is proposed to be carried out, it is satisfied that the land will be remediated before the land is used for that purpose.

(2)  Before determining an application for consent to carry out development that would involve a change of use on any of the land specified in subclause (4), the consent authority must consider a report specifying the findings of a preliminary investigation of the land concerned carried out in accordance with the contaminated land planning guidelines.

(3)  The applicant for development consent must carry out the investigation required by subclause (2) and must provide a report on it to the consent authority. The consent authority may require the applicant to carry out, and provide a report on, a detailed investigation (as referred to in the contaminated land planning guidelines) if it considers that the findings of the preliminary investigation warrant such an investigation.

(4)  The land concerned is—

(a)  land that is within an investigation area,

(b)  land on which development for a purpose referred to in Table 1 to the contaminated land planning guidelines is being, or is known to have been, carried out,

(c)  to the extent to which it is proposed to carry out development on it for residential, educational, recreational or child care purposes, or for the purposes of a hospital—land—

(i)  in relation to which there is no knowledge (or incomplete knowledge) as to whether development for a purpose referred to in Table 1 to the contaminated land planning guidelines has been carried out, and

(ii)  on which it would have been lawful to carry out such development during any period in respect of which there is no knowledge (or incomplete knowledge).

State Environmental Planning Policy (Exempt and Complying Development Codes) 2008

Part 1 – General

Part 3    Housing Codes

Leichhardt Local Environmental Plan 2013

44. The relevant clauses are: ^[11]

    11. Ex 4: Council’s Statement of Facts and Contentions, pp 3-4.

• Clause 1.2 (Aims of Plan)

• Clause 2.3 (Zone objectives and Land use Table);

• Clause 2.7 Demolition requires development consent

• Clause 4.3A(3)(a) Landscaped area for residential development in Zone R1

• Clause 4.3(3)(b) Site coverage for residential development in Zone R1

• Clause 4.4 Floor space Ratio

• Clause 4.5 Calculation of floor space ratio and site area

• Clause 4.6 Exceptions to development standards

• Clause 6.1 Acid Sulphate Soils

• Clause 6.2 Earthworks

• Clause 6.3 Flood Planning

• Clause 6.4 Stormwater management

Leichhardt Development Control Plan 2013

45. The relevant clauses are: ^[12]

    12. Ex 4: Council’s Statement of Facts and Contentions, pp 4-5.

• Part C Section 1

• C1.0 General provisions

• C1.1 Site and context analysis

• C1.2 Demolition

• C1.3 Alterations and additions

• C1.7 Site facilities

• C1.8 Contamination

• C1.9 Safety by Design

• C1.11 Parking

• C1.12 Landscaping

• C1.14 Tree Management

• Part C Section 3 – residential provisions

• C3.1 Residential General Provisions

• C3.2 Site Layout and building design

• C3.3 Elevation and materials

• C3.5 Front gardens and dwelling entries

• C3.6 Fences

• C3.7 environmental performance

• C3.8 Private open space

• C3.9 Solar access

• C3.10 Views

• C.11 Visual Privacy

Submissions – DA proceedings

46. Mr Hale SC for the Applicant began his submissions on the basis of a misconception by the Council which the Applicant says has led to the Council identifying contentions (1, 3, & 4 and 2 (d)) which are misconceived as a matter of law. The Court should strike out contentions 1, 2 (d), 3, 4 and 5 of the Council’s Statement of Facts & Contentions in the DA Proceedings (Ex 4). The Applicant based this submission on the assumption that the Council was challenging the validity of the CDC.

47. However, Council confirmed on the morning of the second day of the hearing in its submissions:

“a)   The Council does not ask the Court to find that the CDC is invalid, or has lapsed, nor does it seek to raise any arguments regarding irregularities in the issue of the CDC in these proceedings.

b)   The Council is content for these proceedings to be determined on the common basis that the consent is assumed to be valid, enforceable and legally effective according to its terms.

c)   This does not mean that the Council makes a general concession that the CDC is valid – merely that the Council does not allege that in these proceedings and is content for the proceedings to be determined on the assumption in b). It formally reserves its position more generally.

d)   The Council does not submit that the CDC “no longer has any legal effect” as submitted by the Applicants in opening nor does its case depend on any finding to that effect.

e) Rather, the Council is content for the Court in determining these proceedings to assume that the CDC is valid and has the effect provided under s 4.26(1) of the EPA Act (Ex 2 Supplementary Bundle p 39), which is in short that a person may carry out the complying development specified in the CDC, but only if it is carried out in accordance with the CDC, and also any relevant provisions of the instruments specified in s 4.26(1)(b)(ii).”

Applicant’s further submissions

48. “The Applicant submitted that the development application, the subject of the present appeal, seeks consent to rebuild the walls and parts of the roof that were demolished for safety and structural reasons. It simply seeks to restore those structures which the CDC required to be retained. The development application clearly stated that the consent was sought for development, only in the sense of the erection of a building and not in the sense of the use of land (s 1.5 of the EPA Act). The Statement of Environmental Effects (SEE) (in Ex B – pages unnumbered) – the Applicant relies on –

• The first paragraph of the Executive Summary:

“This SEE accompanies a DA seeking consent from Council for building works including but not limited to the construction of part building walls and part building roof in association with an approved, but uncompleted, dwelling with attached secondary dwelling development, approved under CDC 700-1015 at …”

• Par 4.1 “This DA seeks consent for the construction of part building walls, part building roof and minor building works to facilitate the approved but not yet constructed dwelling house with attached secondary dwelling, under the CDC.”

• “The DA seeks development consent for building works only. The land use and design remain as approved under the CDC.”

• [5.2.5] State Environmental Planning Policy No 55—Remediation of Land) – second paragraph:

“The CDC provides for the residential accommodation. This DA does not include a change of use. The proposal does not include any earthworks or land disturbance as all works are above ground on an existing structure. A slab has been laid which caps the land where the subject works are to be undertaken. The consent authority can be satisfied that the development will not be inconsistent with this Policy.”

49. The Applicant relies upon s 4.27(3) of the EPA Act –

(3) However, a complying development certificate does not lapse if the development to which it relates is physically commenced on the land to which the certificate applies within the period of 5 years after the date endorsed on the certificate.

50. The Applicant further submitted:

1. The CDC authorises the use, and the use of the building for that purpose is lawful upon the completion of the development in accordance with the CDC.

2. Fundamentally the DA is for the erection of a building under the EPA Act. What is at issue here is to rebuild the walls so that the CDC can be activated. The use of the building is not operative until it is completed. However, there is still a consent for the use as a dwelling and secondary dwelling; it is just not operative yet.

3. A relevant case is Shire of Perth v O’Keefe (1964) 110 CLR 529; [1964] HCA 37 where Kitto J applied the former decision in Bonus Pty Ltd v Leichhardt Municipal Council (1954) 19 LGR (NSW) 375 as follows:

[9] “In three cases under comparable legislation Sugerman J. has expressed views which correspond with those above expressed. The cases are Forrester v. Marrickville Municipal Council (1954) 19 LGR (NSW) 232, at p 236 ; Bonus Pty. Ltd. v. Leichhardt Municipal Council (1954) 19 LGR (NSW) 375, at p 378 and Price (L.N.) Pty. Ltd. v. Leichhardt Municipal Council (1959) 4 LGRA 63, at p 67. In the argument in the last of these cases a view was submitted to his Honour which was very close to that which Jackson S.P.J. accepted in the present case. Sugerman J. rejected it, attributing to the word "purpose" a different meaning in the provisions as to existing uses from that which it had in the prohibiting provisions. The latter meaning he considered was a special meaning governed by the special descriptions of categories. The former meaning, which he called the descriptive meaning, he regarded as the more usual. The view he took of the provision corresponding with by-law 372 - "the more reasonable and practical and workable view" he had called it in the Bonus Case (1954) 19 LGR (NSW), at p 378 - was that "purpose" is intended to refer to "such ranges of activities as may be described in the ordinary use of language by expressions descriptive of trades, industries, manufactures, shops or places of public amusement, such as the expression 'retail butcher's shop'", rather than "to the details of the particular aggregation of activities". (at p536)

4. Contention 2: SEPP 55 has to be assessed having regard to what the development is, and it is only a building on an existing waffle pod, and therefore only cl 7(1) is engaged. SEPP 55 only applies to the development under consideration. The development is for the rebuilding of the walls and roof and does not disturb the Land.

5. The application of FSR, site coverage and landscaped area development standards as set out in Contention 3 is not applicable when there is an existing CDC consent and this development application is for the rebuilding of walls and roof to enable the CDC to be completed.

4. The application of building location zone, and landscaped open space as set out in Contention 4 is not applicable when there is an existing CDC consent and this development application is for the rebuilding of walls and roof to enable the CDC to be completed.

5. Contention 5: Public interest should be considered in context. The development seeks consent to rebuild walls that have been removed on engineering advice as to the suitability of the existing walls for the CDC consent. To refuse the development consent leaves the Applicant in the position that he cannot carry out the CDC development.

6. The erection of the building was so as to replace what previously had been there and what was to be retained under the CDC, and what the CDC contemplated, so that the CDC could be implemented by the walls being constructed substantially the same as the demolished walls which were demolished for structural reasons.

7. The Applicant relies upon the expert engineering evidence of Mr Romanous (Ex J) in relation to the replacement of the original footings which were to be retained under the CDC consent, with the benched waffle pod, the subject of the BIC proceedings.

8. Fundamentally the Council’s case turns on its proposition that every building must have a use (Ex 2 p 34 par 1.5 meaning of development for Part 4). The Applicant referred to Chamwell Pty Ltd v Strathfield Council [2007] NSWLEC 114, a decision by Preston J at [27]:

“In planning law, use must be for a purpose: Shire of Perth v O’Keefe (1964) 110 CLR 529 at 534-535; 10 LGERA 147 at 150 and Minister administering Crown Lands Act v New south Wales Aboriginal Land Council (No. 2) (1993) 31 NSWLR 106 at 121; 80 LGERA 173 at 188. The purpose is the end to which land is seen to serve. It describes the character which is imparted to the land at which the use is pursued: Shire of Perth v O’Keefe at 534;150.”

And at [36]:

“The characterisation of the purpose of a use of land should be done at a level of generality which is necessary and sufficient to cover the individual activities, transactions or processes carried on, not in terms of the detailed activities, transactions or processes: Royal Agricultural Society (NSW) v Sydney City Council (1987) 61 LGERA 305 at 310.

The Applicant submitted that the DA does not include the use for a residential purpose: its use is for the purpose of the DA works which form part of the residence and secondary residence. It was not necessary to define the purpose of the building works because they were simply to enable the approved CDC to be completed.

11. In relation to the Building Line Zone raised by the Applicant, the DA is only to rebuild the walls which were demolished due to structural unsoundness and were to be part of the CDC. A Development Control Plan (DCP) is a policy. The EPA Act requires a DCP to be given consideration, and appropriate consideration. The Applicant referred to Botany Bay City Council v Premier Customs Services Pty Ltd (2009) 172 LGERA 338; [2009] NSWCA 226 at [32] and [35]

[32] “My view is thus that the Commissioner, in respect of the eastern side setback, put aside the standard set by the DCP and applied his own standard of what is reasonable. Accordingly his decision did not conform with the principles stated in Zhang as he failed to “take into consideration” the DCP in the manner required by s 79C. He applied his own view as to the appropriate general policy, not that embodied in the DCP. He therefore committed an error of law (Zhang at [60]).”

[35] “I conclude on this aspect of the matter by indicating my respectful agreement with the views express by McClellan CJ, as he then was, in Stockland Development Pty Limited v Manly Council [2004] NSWLEC 472; (2004) LGERA 254 that ‘consistency of decision-making must be a fundamental objectiveof those who make administrative decisions’ and that ‘that objective is assisted by the adoption of development control plans and the making of decisions in individual cases which are consistent with them’ (at [88]). The ability of an individual decision maker to reject the general policy underlying a development control plan would be antithetical to the achievement of the fundamental objective to which McClellan CJ referred.”

The Applicant reiterated the DA relates to building part walls and roof which have been demolished. The assessment required under the LDCP2013 does not therefore apply in this case which is a development application for minor building works. In the circumstances of this case, the LDCP2013 does not relate to the rebuilding of walls and the roof to an existing CDC.

12. What the Council is seeking to do here is to use these DA proceedings to stifle the lawfully granted CDC which the Council does not agree with and does not want carried out. It cannot be said that it is in the public interest that the Council should base its opposition to this development upon such an intention. The underlying purpose is something quite foreign to the consideration required under the EPA Act. Could there be any doubt about it? The underlying purpose is emphasised over and over again in the Council’s contentions that this development application should not be approved because if it were it would lead to the CDC being implemented. The Council is using its power for an improper purpose in the administrative law sense: a power for which the power has not been granted.

Council’s Submissions

51. Mr Norton counsel for the Council began his submissions by responding to the submission by Mr Hale in [50(12)] above that the submission was improper and should not have been made: Mr Hale submitted that it was accepted ‘everyone knew’ what was happening that Council was using its opposition to the DA to stifle the development approved under the CDC. Mr Norton responded by stating there is no evidence as to such a purpose by Council. It was not put to any of the witnesses nor in contention. It was put by the Applicant to say it was in the public interest to complete the development.

52. The Council does not seek, in these proceedings, a declaration of invalidity of the CDC. Rather, the Council puts its case on the basis that the validity or otherwise of the CDC is immaterial, as the CDC in its terms authorises alterations and additions to an “existing” building, and requires retention of certain structures, which no longer exist. Construing the term “existing building” according to its ordinary and natural meaning would indicate that it must refer to something which was “existing” at the time the CDC was issued. The term cannot refer to works which did not exist at that time, but may come into existence in the future. Therefore, even if valid, the CDC is of no practical utility now that the previously “existing” building has been demolished.

53. The Council considers that the issue of the BIC is linked to whether the DA is approved, as if there is no consent for the DA works then a BIC should not issue in relation to the existing works constructed to form the foundation of the DA works, such works referred to as the waffle pod. The Council notes that the town planners both hold the view that if the DA appeal is dismissed, it should follow that the BIC appeal should also be dismissed (Ex 7 – Joint Expert Report Town Planners – see [43] above).

54. As a matter of law, it will not be open to the Applicant to build the works the subject of the DA, and then rely upon the CDC for “alterations and additions to an existing building”. This is because the “existing building” referred to in the CDC no longer exists and thus the works as constructed will not meet the description. The works will also not be in accordance with the approved CDC plans as certain “existing” structures marked as to remain, or to be modified, will no longer remain and cannot be modified; and some of the new structures are constructed of different material or in different locations. Approving a skeleton of walls and roofing is therefore inappropriate. A new development application should be submitted for the entirety of the proposed dwelling – in the circumstances of this case the Court should not approve just a portion of a dwelling.

55. There are some differences between the works proposed to be constructed and the previously existing structures, as agreed between the town planners (Joint Town Planning Report Ex 7 par 8):

1. Walls previously constructed of either brick (in the former building on the front of the Land) or metal (the building on the rear of the Land) are now to be constructed of timber-framed walls to be rendered and painted.

2. The position of the previously encroaching wall on the rear (southern) boundary will move to correct an encroachment.

3. A new Colorbond roof will also have a slightly revised footprint to correct the encroachment.

4. The ground level in the garage is different (reflecting the level of the new waffle pod slab); and

5. The door between the garage and plant room on the lower floor will be relocated slightly further to the north, and additional steps are required to reach the new floor level.

56. Accordingly, even once the DA works are complete, the new works will not precisely match the previously existing works to be modified under the CDC. The outcome on the ground will not be the outcome provided for under the CDC, which was alterations and additions to the “existing” building, and retention of “existing” structures that have now been demolished. It follows that it is not possible to carry out development strictly “in accordance with the consent” (EPA Act, s 4.2(1)(b)).

57. While consent is not expressly sought for use of the completed works the subject of the DA, the Court must nonetheless ascribe a purpose to those works, so that permissibility can be determined, and the appropriate controls may be identified. The tripartite classification of development under ss 4.1-4.3 of the EPA Act turns on what sorts of “specified development” environmental planning instruments provide may be carried out with or without consent, or which are prohibited. The means of such specification is usually at least in part by reference to the purpose of the development. That purpose must be identified in order for permissibility to be established and controls to be applied.

58. The decision of Chamwell v Strathfield Council (2007) 151 LGERA 400; [2007] NSWLEC 114 contains a useful commentary on characterisation of use and purpose of development at [27]-[37]. That passage confirms the following propositions:

1. In planning law, use must be for a purpose (at [27]);

2. The use of land involves no more than the physical acts by which the land is made to serve some purpose (at [28)];

3. In the case of use of land for the purpose of retail development, the purpose can only be achieved by the physical acts of constructing the space in which the retailing takes place and also the space for associated activities (at [29]);

4. The physical acts involved in erecting a building to be used for a purpose are the means by which the land is made to serve that purpose (at [31]);

5. Characterisation of the purpose of a use of land should be done at a level of generality necessary and sufficient to cover the individual activities, transactions or processes carried on, not in terms of the detailed activities, transactions or processes (at [36]).

Implicit in the above is that construction of a building, or carrying out of works, that will ultimately achieve a use is part of achieving that purpose, and thus involves use of the land for that purpose.

59. The Applicant submits that the purpose is merely to construct the DA works, apparently as an end in and of itself. This is clearly not so. The SEE ^[13] accompanying the DA contains the following statement regarding the purpose of the works:

“[The DA seeks consent] for building works…in association with an approved, but uncompleted, dwelling with attached secondary dwelling development, approved under [the CDC]” (Executive Summary)

“The proposal seeks approval for buildings [sic] works, principally the construction of part building walls and part building roof, to facilitate the completion of residential development approved under an operative CDC    at the Site.” (Section 6.1)

13. Ex B Application for Development Consent, including the Statement of Environmental Effects (pages unnumbered)

60. This was echoed in the Applicant’s opening where it was said the works were to be carried out to enable the foundations to carry out the CDC development, and enable that authorised by the CDC itself. This in and of itself tells against the bare purpose ultimately submitted by the Applicants.

61. The purpose of the DA works is to build structures which will be used to underpin the works the subject of the CDC, which are for the purpose of a dwelling house and secondary dwelling. Carrying out the works which will be part of the dwellings forms part of the “physical acts of constructing the space” within which the proposed residential uses will occur. They are means by which the Land is made to serve the residential purposes. Accordingly, the DA should be construed as seeking consent for a use of the land for the purposes of a dwelling and secondary dwelling house; and the applicable provisions and controls are those for residential development. Indeed, the Applicants, whilst on the one hand say that the only “purpose” of the works is constructing physical structures, on the other hand raise arguments of merit saying that consent should be granted so that they can complete the CDC works. The Applicant cannot have it both ways.

62. In addition, the CDC does not operate to authorise general use of land. With reference to s 4.27(3) of the EPA Act, it initially authorises use in the form of construction of the approved works; and, after completion:

“….is sufficient to authorise the use of the building when erected for the purpose which it was erected if that purpose is specified in the application for the complying development certificate”.

63. Therefore, the components of residential use authorised by the CDC are:

• Construction of the alterations and additions to the “existing building”; and

• Use of the building (or part that has been constructed under the CDC) once erected in accordance with the CDC for the purpose specified in the application (being – a dwelling with an attached secondary dwelling).

64. This does not include use in the form of construction of the works the subject of the DA. (Obviously it cannot because the CDC expressly contemplated that specified existing walls and roofing be retained.) It follows that, to the extent the DA seeks consent for construction of works, it also must necessarily be seeking use of the land for the purpose of a dwelling house and secondary dwelling, in order to carry out those works.

65. If the DA works could be characterised as mere building works with no “purpose”, and no attendant “use” of land, it would create an absurd scenario whereby an applicant could apply for consent to carry out “building works” to construct a building of unspecified purpose, and only apply for consent to use the building once construction was complete. It would then not be possible to establish what the appropriate development standards were against which the applicant to construct the building was to be assessed (for example, those applying to residential, commercial, retail, or industrial development).

66. The Applicant submits that if the “purpose” is confined to construction of walls or other structures, the only relevant matter for merits assessment, and the only relevant controls, is the safety and structural integrity of those structures and controls to that end. This cannot be so. Matters of safety and structural integrity necessarily depend on the purpose of those works which in turn depends on their potential use. For example, walls and floor constructed for the purpose of a residential house may need to satisfy different criteria for structural integrity than walls and floor constructed for a hazardous chemical facility, or a floor that must support items of significant weight. If no purpose was specified for a wall to be erected, it could be a balsa wood frame covered in Japanese paper, which may be structurally adequate and safe if serving as a decorative screening item, but wholly inadequate as a supporting wall that was to be later incorporated in a larger development, or to contain dangerous animals in a zoo. It would be absurd if a person were able to apply for consent to erect a structure – such as sets of walls, floors and roof elements that might conceivably serve as a block of units, or an office building, or a retail development – without specifying a purpose for that structure and thus escape the application of the applicable development controls relevant to that purpose.

67. Even the consideration of structural integrity calls up consideration of the ultimate residential use proposed once the CDC works are completed, as in this case, the structural integrity has presumably been assessed on the basis of whether or not lower level walls proposed in the DA are capable of bearing the weight of the CDC works to be constructed on top of them.

68. Importantly, the Council’s case does not stand or fall on the issue of whether the carrying out of the DA works constitutes “use”. Even if no “use” is entailed (and it is submitted that it is), the works themselves are for a purpose, being that of a dwelling house and secondary dwelling, which are “residential accommodation” for the purpose of the LLEP2013.

69. In determining the DA, the Court is required to have consideration to the following statutory provisions in State Environmental Planning Policies:

1. Under SEPP 55, the consent authority must not grant consent to development unless it has considered whether the subject land is contaminated and, subject to its status of contamination, is satisfied that the land is or will be made suitable for the development. The documents in Council Supplementary Bundle ^[14] attach material from Council’s file showing:

• The Land has a history of industrial uses

• The Council considered at one stage that the land had the benefit of existing use rights for industrial uses; and

• Correspondence with Council asserts that the property has been used “over the years” for car repairs. The type of car repairs is not specified.

  14. Ex C Council’s Supplementary Bundle of Document, pp 43-48

70. Given the unclear nature of the use (and in particular the car repair use) the Applicant should be required to provide sufficient information to enable the Council to consider the contamination status of the Land. At present, the information provided is inadequate.

71. It is not in the public interest, and not consistent with the orderly development of land, for development to be approached in the manner of the DA for alterations and additions to a CDC which also relied upon alterations and additions, and the material upon which the CDC relied has been demolished. If a person wishes to make alterations and additions to an existing building, the State Environmental Planning Policy 2008 (Complying Development) (Complying Development SEPP) provides that this can be done as complying development with a relaxation of development standards that might otherwise prevent a new building of the same size and footprint being approved on that site. To take the benefit of those provisions, one must also take the burden of them, being constrained to the alteration of the existing building, with all of its attendant properties. It is not in the public interest for an applicant to obtain a complying development certificate for such alterations and additions, obtaining the benefit of those relaxed standards, but to then demolish and seek to replace the demolished base building with a new building to which the alterations and additions will be applied.

72. In a circumstance where consent has been issued for alterations and additions to an existing building, but it proves impossible to carry out those works due to fundamental defects in the existing building, the appropriate course is for the proponent to seek a fresh consent for a completely new building. That is what the Applicant should have done in this case prior to demolition.

70. Of course, any new building is subject to the planning controls applicable to new development, as well as public notification and consideration of submissions. These controls should not be sidestepped by seeking to benefit from concessions which apply where existing building are retained, then demolishing that building and applying to build an entirely new structure with a similar footprint and form – particularly where the overall new development would breach controls.

Consideration of the CDC in the context of assessing the DA (Council’s submissions continued)

74. The CDC obviously does not in itself authorise the carrying out of the works for which consent is sought under the DA.

1. Where there is an existing consent (or CDC) to carry out development, it is open to the person with the benefit of that consent to make a further development application to carry out works and change an approved use of land within the context of that consent, without formally seeking to modify it, even if the works have not yet been constructed. In this regard the Council refers to Waverley Council v Hairis Architects (2002) 123 LGERA 100; [2002] NSWLEC 180, especially [18], [24], [28], and [30]. The development application here is to similar effect – though it does not seek in any way to modify the CDC or the works authorised by it. Rather, it seeks to change the overall nature of the development intended to be carried out on the Land, in purported reliance on both the CDC and DA (if granted).

2. However, consideration of the merits of the development application does not occur in a vacuum and it must be assessed in the context of any development already approved.

3. In Gordon & Valich Pty Ltd v City of Sydney Council [2007] NSWLEC 780, Preston CJ considered the scope of assessment of an application for development consent which, in substance, had the effect of seeking to carry out development under an existing consent in a different manner. The applicant sought to limit the Court’s inquiry only to the impacts of the alterations and additions proposed in the subject consent. The Council submitted that the analysis should extend to the whole of the resultant development (at [9]-[10]). The Council’s contentions sought to evaluate the development resulting from both the existing and sought consents considered together (at [21]). His Honour held that the Council’s approach was the correct one – that the various aspects of the whole resultant development had to be taken into account. One could not divorce looking at the new aspects of the development from the broader contextual inquiry and the rest of the building (see in particulars [23]-[25]).

75. The consequence for the DA appeal is that the Court cannot consider the DA in isolation from the CDC. The Court should:

• Determine what is authorised by the CDC, and

• Consider the overall resulting development – being the works the subject of the DA plus the works the subject of the CDC – when assessing the merits against the applicable standards.

76. This means that for the purposes of applying the LLEP 2013 standard in relation to FSR (cl 4.4) one would treat the application as being for the purposes of residential development; and (in respect of the FSR standard) would also look to the completed building to apply those standards (assuming it can be lawfully completed).

77. Even if the Council is incorrect on this point and consideration is confined only to the specific physical works in the DA, without regard to the CDC, landscaped area (cl 4.3A(a)(ii)),and site coverage (cl 4.3A(3)(b) of LLEP2013) are relevant to the assessment.

78. It is noted that the Applicant places heavy reliance upon the Court taking into account the existence of the CDC and the works that can be carried out and the claimed desirability of completing those works, as matters of public interest mitigating in favour of granting consent. This necessarily involves accepting the proposition that regard may be had to the existence of the CDC and what it authorises in assessing the DA.

Submissions – BIC proceedings

79. The Applicant’s submissions are similar to the DA proceedings, with the following additions:

1. The Complying Development Certificate 700-1015 was registered with Council on 1 June 2016 (Ex H). Attached to Ex H (unnumbered) are:

• On Plan S1 Rev A by CEC dated 1/10/2015 attached to Ex H, the Plan has the following notation: “Adequacy of existing footings and brickwork to be confirmed by engineer during construction & prior to loading” and “All hatched walls denote load bearing and all non-hatched walls are non-load bearing.

• On Plan S4 Rev A by CEC dated 01/10/2015 is the Driveway Slab Plan and it shows a “Typical Grated Drain Detail”.

2. Attached to the Development Application Form Building Works (Ex B) is the following plan (pages unnumbered): Sydesign Section A-A Plan CDC08 Rev 1 which shows the waffle pod shaded in grey.

3. It was identified in the CDC the notation to inspect and ensure the structural adequacy of the footings and brickwork.

4. Consistent with that notation, there was an inspection.

5. Advice was given that for structural soundness there needed to be demolition and waffle pod redesign.

6. In relation to the public interest, the approach of the Applicant would be the preferred approach, i.e. approve the development and grant the BIC to enable completion of the CDC so that the site does not remain a building site.

7. Finally, Mr Hale SC for the Applicant read pars 5-16 of a Report by Mr Apps filed 6 March 2021, but which was not admitted in evidence. I have read the paragraphs referred to by Mr Hale SC and note that they are matters which have been drawn to the Court’s attention in the oral submissions by Mr Hale, and/or are traversed in the Joint Experts Report Town Planning (Ex 7).

80. The Council’s submissions were as follows:

1. Council raises no issues regarding the structural integrity of the works the subject of that appeal. However, it is only appropriate to issue a BIC if it would be appropriate to prevent Council from taking action in relation to those works.

2. As a matter of merit, the BIC works include a slab which would not comply with the development standards for site coverage in respect of new residential development on the site. They are clearly intended as the foundation for construction of the DA works, plus the CDC works. As agreed by the town    planners (Ex 7 p 32 par 119), if consent is refused for the DA then a BIC should not issue in respect of those works.

3. The Council further submits that even if the DA is granted, a BIC should not issue if the Court considers that the CDC works cannot ultimately be carried out. Council should retain the ability to require removal of the works already constructed if they are not to form part of a future development.

4. If, however, the Court grants consent to the DA and also concludes that the CDC, properly construed, would authorise construction of the CDC works    interfacing the with DA works, then the BIC should issue.

Development consent conditions

81. The Draft Conditions of Consent for the DA Proceedings are Ex 6. The Applicant objected to the following draft conditions:

“10. Stormwater Drainage System – Minor Developments (OSD required)”

“16. Operation and Management Plan (for on-site detention and/or on-site retention/re-use facilities and stormwater quality improvement device(s) and pump(s).”

“17. Works as Executed – Site Stormwater Drainage System”

82. The Applicant objected to these conditions on the grounds that the stormwater drainage was dealt with under the CDC and it would be superfluous to impose them again. In submissions, Mr Hale SC raised the following, inter alia:

“The issues of storm water drainage disposal was first raised during the hearing of the DA appeal when the Council, with leave, adduced oral evidence from the Council’s expert planner, Mr Hugo, in relation to conditions.”

“Since neither of the expert planners had considered stormwater drainage disposal, neither was able to assist the Court as to whether the issue had been addressed in the ‘CDC’. Accordingly, there is no evidence before the Court which could or would justify the imposition of the stormwater drainage conditions in Exhibit 6, for which the Council contend; that is proposed in conditions 10, 16, 17.” ^[15]

15. Ex 6 Council’s Proposed/Draft Conditions of Consent

83. The Applicant submitted that it would accept the following amendments to Council’s Proposed/Draft Conditions of Consent:

1. Deletion of conditions 10, 11, 16 and 17.

2. Insertion of Condition 3A as follows:

“3A Relationship between this Consent and CDC/2016/68

Works approved for construction by this Consent must not be constructed unless they are constructed as an integral part of the works approved for construction by CDCP/2016/68.

3B [Deleted]

3C Amendment of Construction Certificate for CDCP/2016/68

The construction certificate issued for the works approved by CDCP/2016/68 must be amended to take account of the works approved for construction by the Consent.

3D [as Condition 3 in Ex 14].”

84. The Council noted that it was the Applicant who first raised the stormwater issue, in its response to the Proposed/Draft Conditions of Consent. However, the Council’s primary position is:

“that as a separate application has been made for the development consent for these works only, any consent granted must be self-contained and not rely on the carrying out of the CDC works to address matters that are required to be addressed as a jurisdictional precondition. The DA in itself contains no stormwater measures for the draining of the proposed roof structure, but this can be easily addressed by imposing conditions, 10, 16 and 17. Also, on this basis, the Council opposes the Applicant’s proposed condition 3A”.

85. The Council’s secondary position is that if the Court finds, contrary to the Council’s primary position in [84], that the CDC could be implemented in relation to the DA works once they were constructed then the Council does not oppose the Applicant’s draft 3A condition being imposed, and if draft condition 3A is imposed, then draft conditions 10, 16 and 17 can be deleted.

Findings: DA proceedings

86. Complying Development Certificate numbered 700-1015 was issued by a Private Certifier, Phoenix Building Approvals, on 31 May 2016, and filed with Inner West Council on 1 June 2016. The Complying Development Certificate had plans attached to it dated 1.10.2015 and numbered ST 15436, SO A, S1 A, S2 A, S3 A, S4 A, S5 A, S6 A, S 7 A and S9 A. (Ex H)

87. The Complying Development Certificate was for “Alterations and additions to existing dwelling with attached secondary dwelling”.

88. On completion of the building works in the CDC, by dint of s 4.27(3) of the EPA Act the CDC, the use of the property would be converted from the existing industrial use to residential for the purpose of a dwelling house and attached secondary dwelling.

89. On Plans S1 A and S2 A by CEC dated 1.10.2015 (attached to Ex H), the Plans have the following notation: “Adequacy of existing footings and brickwork to be confirmed by engineer during construction & prior to loading” and “All hatched walls denote load bearing and all non-hatched walls are non-load bearing”.

90. Mr Reda Salah gave expert engineering evidence on behalf of the Applicant ^[16] . Mr Salah inspected the Land in May 2019, and the plans he had with him included Plans S1 A and S2 A. Mr Salah gave evidence that the advice he gave the Applicant’s was:

“(a)   The walls could not bear the weight of the proposed new structure.

(b)   The walls would have to be removed and reconstructed.

(c)   New piers would also be required as the adequacy of the existing piers to support the proposed new structure could not be verified.

……”

16. Ex B Applicant’s Development Application Form, Appendix C

91. I find that Mr Salah referred to all the walls, i.e. not only the existing the brick walls located in the part of the premises on the Land nearest Alfred Street Lilyfield, but also the material of the walls on the rear section. The rear section of the existing buildings “appears to be metallic cladding” ^[17] (see [2] above for Figures 1 and 2). The notations on Plans S1 A and S2 A are confined to the “Adequacy of existing footings and brickwork”. On Mr Salah’s evidence, not only the brick walls in the front building, but also the metallic cladding walls in the rear building were not able to bear the weight of the new structure.

    17. Ex 7 Town Planning Joint Report [8 ii a] p 4

92. On receiving Mr Salah’s advice, the Applicants demolished the whole of the roof, all the walls, and the footings. The only built structure remaining on the Land at this point in time was part of a masonry retaining structure near the eastern boundary.

93. The Applicants constructed the waffle pod footings prior to Council issuing a Stop Work Order which was upheld in proceedings before this Court. ^[18]

    18. Ibid

94. On 10 January 2020 the Applicant lodged an Application for a Building Information Certificate with Council in respect to the concrete piers, and waffle pod slab. The Building Information Certificate was filed in accordance with s 8.25(1) of the EPA Act.

95. On 2 June 2020 the Applicant lodged a Development Application for “Minor Building works to dwelling with attached secondary dwelling approved under Complying Development Certificate 700-1015” ^[19] to construct the parts of the walls and roof required by CDC 700 1015 to be retained but which had been demolished. The Applicant appealed the deemed refusal of the DA in accordance with s 8.10 of the EPA Act.

    19. Ex B p 4 (pages unnumbered)

96. There are differences between works proposed to be constructed and the previously existing structures, as agreed between the town planners ^[20] :

    20. Ex 7 Joint Town Planning Report par 8

1. Walls previously constructed of either brick (in the former building on the front of the Land) or metal (the building on the rear of the land) are now to be constructed of timber-framed walls to be rendered and painted.

2. The position of the previously encroaching wall on the rear (southern) boundary will move to correct an encroachment.

3. A new Colourbond roof will also have a slightly revised footprint to correct the encroachment.

4. The ground level in the garage is different (reflecting the level of the new waffle pod slab); and

5. The door between the garage and plant room on the lower floor will be relocated slightly further to the north, and additional steps are required to reach the new floor level.

97. A further difference is that the waffle pod footings have been benched on the Land to give 3 benched levels, whereas the existing footings were sloped on the Land and reflected the rise in slope of 2 meters between the north and south boundaries.

98. For the purposes of these proceedings, it was accepted by the Council that the CDC was valid.

99. Figure 3 below shows the Land with the waffle pod slab benched from north to south. Post demolition, and prior to the construction of the waffle pod slab, the land was vacant except for a masonry retaining structure on the eastern boundary. In Figure 3 the masonry retaining structure is partly intact and partly demolished.

Figure 3 View of the subject site from the driveway access showing the completed slab ^[21]

21. Ex 7 Joint Expert Report Town Planning, p 16

100. The Executive Summary of the SEE ^[22] states in part: “This SEE accompanies a DA seeking consent from Inner West Council for building works including but not limited to the construction of part building walls and part building roof in association with an approved, but uncompleted, dwelling with attached secondary dwelling development” being the CDC. The Applicant has been careful to frame his application as a separate DA for “Minor building works to a dwelling with attached secondary dwelling approved under” the CDC. It was open to the Applicant to make a development application, which would have attracted a full assessment under s 4.15 of the EPA Act. Instead the Applicant has chosen to make a separate DA for “Minor building works” relying upon an existing approval (CDC) with the result that he avoids the application of a full assessment under s 4.15 of the EPA Act.

     22. Ex B Development Application Attachment SEE

101. The DA Plan – East and West Elevations Drawing CDC07 Rev1 dated 15.05.20 shows the “DA Proposed Works” shaded in yellow and the works outlined in a closed black line as “Approved Works as per CDC 700-1015”. ^[23] DA Plan Section A-A Drawing CDC08 dated 15.05.20 reveals that the base of the garage facing 4 Alfred Street is at RL 22.45. ^[24] The CDC Plans are in Ex 2 at pp 601, 602 and 603. The plan at p 603 CDC07 Rev F East and West Elevations reveals the base of the garage facing 4 Alfred Street is at RL 24.730.

     23. Ex B Development Application Appendix B Architectural Plan Set

     24. Ibid

102. Taking into account a comparison of the CDC Plans and the DA Plans, I find that the DA works are not “Minor building works to dwelling…” as set out in the Development Application Form. ^[25]

     25. Ex B, page 4 of the DA Application Form (pages unnumbered)

103. The CDC was assessed under “alterations and additions”. The DA for “Minor works”, according to the Applicant, should be assessed as minor works, and according to the Council, should have a full assessment under s 4.15 of the EPA Act. On the Applicant’s case, he should avoid a full assessment under s 4.15 of the EPA in relation to the LLEP2013 in relation to FSR, site area and landscaped area. Any non-compliances with these development standards would require the Applicant to lodge a s 4.6 variation. Again, on the Applicant’s case, he should avoid an assessment under the LDCP2013 in relation to the Building Locations Zone, and as a consequence of the CDC walls, the location of the walls forward of the Building line, the closeness of the rear wall to the rear boundary, and the provision of shadow diagrams. ^[26]

     26. Ex 7 Joint Experts’ Report Town Planning pp 21-23.

104. Council’s planner, Mr Hugo, stated in par 58 of the Joint Experts’ Report Town Planning Ex 7 p 20 par 58:

“If the proposal is looked at in isolation from the CDC, the site has no improvements other than the unauthorised slab, the construction of the walls results in a non-compliance with the site area and landscaped area development standards”.

105. And at p 28 par 107:

“The reinstatement of the wall advantages the applicant as they avoid the need for a development application for a new dwelling with the requirements to comply with the requirements for a new dwelling, (ie setbacks site coverage, FSR (in the case of a DA), landscaped area and the need for a development application for a secondary dwelling)”.

106. Further, the planners agreed in par 112 on p 31:

“that if a DA was lodged for a dwelling over the land, it would need to satisfy those provisions discussed in contentions 3 and 4 of the DA appeal, or at least need to justify any variations to those provisions with well-founded reasons”.

Contention 3 deals with the LLEP2013 controls and Contention 4 deals with the LDCP2013 controls.   

107. The Applicant’s case is that:

• The DA seeks consent to rebuild the walls and parts of the roof that were demolished for safety and structural reasons. The DA simply seeks to restore those structures which the CDC required to be retained. The DA clearly stated that consent was sought for development, only in the sense of the erection of a building and not in the sense of the use of land.

• What is at issue here is to rebuild the walls so that the CDC can be activated.

• The use of the building is not operative until it is completed, i.e.. both the DA works and the CDC works. However, the Applicant considers that is still a consent for the use as a dwelling and secondary dwelling; it is just not operative yet.

• Assessment of potential contamination pursuant to SEPP 55 is not necessary because the waffle pod slab covers almost all of the Land.

108. The Council considered that even though consent is not expressly sought for use of the completed works the subject of the DA, the Court must ascribe a purpose to those works, so that permissibility can be determined and appropriate controls identified. The Council relied upon the decision of Chamwell v Strathfield Council. ^[27]

     27. (2007) 151 LGERA 400; [2007] NSWLEC 114 at [27]-[37]

108. I agree with the Council’s arguments in regard to “purpose”. A purpose must be ascribed to a development application, otherwise the regulatory authority cannot identify what planning controls are applicable to the development, and if ultimately consent should be granted to the particular development, what conditions should be imposed. This is not a modification application which provides alterations and additions to an existing development consent. This is a development application seeking consent for “Minor building works to dwelling with attached secondary dwelling” where the owner of the Land has a CDC consent for alterations and additions to existing buildings to convert them from industrial use to residential use, but where the owner has demolished the walls, roof and footings upon which the CDC relied for approval. It is almost as if the CDC consent hangs in a stratum of the air above the waffle pod which was built without approval, and for which the owner seeks consent in the BIC proceedings. I find that the purpose for which the building is to be used is a relevant consideration.

109. I also find that the various aspects of the whole development need to be taken into account (CDC, DA and BIC works), in accordance with the decision in Gordon & Valich Pty Ltd v City of Sydney Council [2007] NSWLEC 780.

110. Contention 5 relates to the public purpose: is it the implementation of orderly planning to grant consent to a DA in circumstances where:

1. The CDC granted consent (for the purposes of these proceedings) for alterations and additions to an existing industrial building(s), and completion of the works the subject of the CDC would result in a change of use from industrial to residential for the purpose of a dwelling and attached dwelling? And -

2. The buildings upon which the alterations and additions in the CDC were granted, were demolished. The only remaining structure on the land was a partly demolished retaining wall on the eastern boundary? And -

3. The footings were replaced with a waffle pod, without gaining Council consent, and are the subject of the BIC proceedings? And -

4. The DA seeks consent to rebuild the walls and parts of the roof that were demolished for safety and structural reasons. The Applicant submitted “that it simply seeks to restore those structures which the CDC required to be retained. The DA seeks consent for “Minor Building works to dwelling with attached secondary dwelling approved under Complying Development Certificate 700-1015” ^[28] ?

I find the present DA for “Minor building works…” is for substantial building works and is not in the public interest to be assessed as minor building works to replace that which was demolished.

28. Ex B – Development Application, 4th page (pages unnumbered)

112. Orderly development is an object of the EPA Act. The planners agree ^[29] that orderly development is achieved when development consent is sought, an assessment is carried out, and a consent obtained before building work is undertaken. They also agree that the issue of a consent for “alterations and additions” would take into consideration the existing building envelope and allow some concessions to be made with regard to setbacks, height and the like.

     29. Ex 7 Joint Expert Report Town Planning p 24 para 78.

113. The CDC was given the benefit of the limited assessment for its application for “alterations and additions” to existing buildings, which upon completion would change the use from industrial to residential for the purpose of a residential dwelling and attached dwelling.

114. At the point in time when the buildings upon which the CDC relied were demolished, and the site was vacant except for the partially demolished masonry retaining wall on the eastern boundary, the Applicant should have applied for development consent to build a residential dwelling and attached secondary dwelling. Then the Council would have been able to comply with the objective of orderly development to assess the application in the proper manner by applying all the planning controls, which include the, inter alia, LLEP2013, LDCP2013 and SEPP 55.

115. In exercise of the powers under s 8.14 of the EPA Act and 39 of the LEC Act, the Development Application should be determined by refusal. It is therefore not necessary to address the Proposed/Draft Conditions of Consent.

Consideration: BIC Proceedings

116. I note the advice of the parties that if the DA is refused the BIC appeal should be dismissed. I agree that the BIC Proceedings should be dismissed.

117. However, on assessing the BIC I would require further information under s 7(1) of SEPP55. This site has a history of industrial use. The exact use on the site it not clear, but it does appear from correspondence on Council’s file that the Land has been used at one point in time for motor vehicle engine repair. On a change of use from industrial to residential, the Applicant is required to prove the Land is safe for residential use (i.e. by families and particularly young children). The Land must not present a risk to human health. When the site was virtually vacant, prior to the construction of the Waffle Pod, a Phase 2 Contamination Report should have been prepared to ensure that there are no contaminants on the Land, and no possibility of the remaining open soil (outside the future waffle pod slab) being contaminated, nor any offsite migration of contaminants. Without an appropriate report pursuant to cl 7 of SEPP 55, the BIC appeal should be dismissed for lack of information.

118. In exercise of the power under s 8.25(3) of the EPA Act and s 39 of the LEC Act, the BIC proceedings are dismissed.

Orders

Proceedings 2020/226535

119. The Court orders that:

1. The appeal is dismissed.

2. Development Application DA/2020/0429 is refused.

3. The exhibits are returned except for A-H, J, L, 1 (Tabs 6-9 pp 590-651), 2, 4, 5 and 7.

Proceedings 2020/226536

120. The Court orders that:

1. The appeal is dismissed.

2. Building Information Certificate dated 10 January 2020 is refused.

3. The exhibits are returned except for A-H, J, L, 1 (Tabs 6-9 pp 590-651), 2, 4, 5 and 7.

…………………………

M Peatman

Acting Commissioner of the Court

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Endnotes

Decision last updated: 09 June 2021