Rahe v Inner West Council

[2025] NSWLEC 1434

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Rahe v Inner West Council [2025] NSWLEC 1434

Hearing dates:

5 March 2025 and 11 April 2025

Date of orders:

18 June 2025

Decision date:

18 June 2025

Jurisdiction:

Class 1

Before:

Porter C

Decision:

The Court orders:

(1) The appeal is dismissed.

(2) All exhibits are retained.

Catchwords:

APPEAL – building information certificate – 6.26 request - is the application amended – information requested by Council - notional development application – floor space ratio - stormwater – landscaping – inadequate information – inconsistent information

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 6.25, 6.26, 8.25

Environmental Planning and Assessment Regulation 2021, ss 37, 113

Inner West Local Environmental Plan 2022, cl 4.3C

Cases Cited:

Australian Protein Recyclers Pty Limited v Goulburn Mulwaree Shire Council [2006] NSWLEC 641

Scarf v Shoalhaven City Council [2021] NSWLEC 128

Smith v Camden Council [2025] NSWLEC 1027

Texts Cited:

Leichhardt Development Control Plan 2013

Category:

Principal judgment

Parties:

Chahrazad Rahe (Applicant)
Inner West Council (Respondent)

Representation:

Counsel:
S Berveling (Applicant)
M Wright SC (Respondent)

Solicitors:
Bartier Perry Lawyers (Applicant)
Inner West Council (Respondent)

File Number(s):

2024/427823

Publication restriction:

Nil

JUDGMENT

1. COMMISSIONER: These proceedings concern an appeal by Chahrazad Rahe (Applicant) of Inner West Council’s (Council) failure to issue Building Information Certificate BC/2024/0137 for works at 38 Denison Street, Rozelle, pursuant to s 8.25 of the Environmental Planning and Assessment Act 1979 (EPA Act).

2. The filed class 1 appeal originally sought orders in relation to BC/2024/0137 (BIC application) and modification application MOD/2024/0157. The modification application was discontinued prior to the hearing for the BIC application.

Relevant History

3. On 13 July 2022, development consent for DA/2021/0014 was issued by the Court for construction of a two storey dwelling house above basement car parking at 38 Denison Street Rozelle.

4. On 18 March 2023, construction certificate 100C23 was issued by Mr George J Saadi of CDC Private Certifiers, also the nominated principal certifier. As relevant to the BIC application, the construction certificate plans are generally consistent with the architectural plans that formed part of DA/2021/0014 (Ex 3, Tabs 58 and 47 respectively).

5. On 25 March 2024, Council issued development control order no. EPA/2024/0037 (DCO) that required the Applicant to cease unauthorised building works. There is some disagreement between the parties in relation to status of the DCO and various undertakings, which are not relevant to these proceedings.

6. On 1 August 2024, the Applicant lodged the BIC application.

7. On 18 November 2024, the Applicant filed a Class 1 appeal in relation to the BIC application and modification application.

8. On 10 December 2024 a Plan of Delimitation of Lot 10 in DP 1272298 was registered. The Applicant submits that the effect of the registration resolved previous issues raised by Council regarding defined boundaries and the site area, at 266.9m². Consequently, the site area has increased from 255m² as considered by the original DA.

9. On 11 February 2025, the modification application appeal travelling with the subject proceedings was discontinued.

10. On 21 February 2025, Council issued a ‘List of Required Certification and Details to be submitted for the Assessment of Building Information Certificate’ (s 6.26 Notice) pursuant to s 6.26(2) of the EPA Act.

Contentions

11. Council raised several contentions in its Statement of Facts and Contentions (SoFAC), of which the first two contentions were agreed to be resolved or not pressed during the hearing:

1. Owners consent (resolved).

2. Invalid construction certificate (not pressed).

3. No evidence regarding mandatory inspections by the principal certifier.

4. Insufficient information.

12. In understanding the issues remaining, the Court was greatly assisted by detailed written and oral submissions from both parties.

What constitutes the BIC application, is an amendment sought and is the BIC information adequate?

13. There is a dispute between the parties about the extent of works that form part of the BIC application. Council contends that the inconsistencies between the BIC application and works undertaken on site warrant refusal on this basis alone. Interrelated issues about the BIC application include:

1. The extent of information that forms part of the BIC application.

2. If additional information provided in response to a s 6.26 Notice from Council forms part of the BIC application.

3. If the additional information is inconsistent with other documentation that forms part of the BIC application, support the BIC application or were provided in response to the s 6.26 Notice.

4. If the additional information submitted in s 6.26 constitutes an amendment of the BIC.

14. The parties agree that there is no express or implied power to amend a BIC application: Scarf v Shoalhaven City Council [2021] NSWLEC 128 (Scarf) at [57] – [59]. There are no equivalent provisions for BIC applications that exist for a development application (s 37 of the Environmental Planning and Assessment Regulation 2021 (EPA Reg)) or modification application (s 113 of the EPA Reg).

15. The description of the building/structures that the BIC application relates to are described on the BIC form as:

‘Basement internal walls to sauna, steam and bathroom, internal walls to living room extension including external wall and windows, void and wall heights, area wall extended in master bedroom, removal of window in master bedroom, bathroom window relocation’.

16. The BIC application, as filed with the Class 1, included the following documentation:

1. BIC form.

2. Architectural drawings issue 1 prepared by Pinnacle Design Studio dated 23 July 2024 (filed BIC plans):

1. Drawing No. BIC – 04.00 – Basement.

2. Drawing No. BIC – 04.10 – Ground Floor.

3. Drawing No. BIC – 04.20 – First Floor.

4. Drawing No. BIC – 05.00 – Sections.

3. Basement Dencil Walls Certificate reference number Cer5: TE 38 Denison B S 05 issued by Transcivic Engineering, undated.

4. First Floor Slab Construction Certificate reference number Cer7: TE 38 Denison F.F.S.07 issued by Transcivic Engineering, undated.

5. Timber Framing Certificate of Adequacy reference number Cer8: TE 38 Denison T F 08 issued by Transcivic Engineering, undated.

6. Steel Structure Construction Certificate reference number Cer9: TE 38 Denison ST 09 issued by Transcivic Engineering, undated.

17. These documents are also the listed documents on the BIC form under ‘the following documents support the application’. The filed architectural plans include notations and shadings of ‘works for (the) BIC’.

18. The Statement of Facts and Contentions in Reply describes the works at paragraph 7 as:

The Proposal

7. The Applicant denies paragraph 7 and says the building information certificate is sought in relation to the parts of the dwelling, as built, at the Site, which are clouded or outlined in red and/or coloured purple in the accompanying architectural plans and comprise:

7.1 At the basement level, the reconfiguration of the layout and access stairs;

7.2 At ground floor level, the minor reconfiguration of the layout, replacement of the car lift with an at-grade garage and the extension (to the rear) of the “living” and “dining” rooms;

7.3 At first floor level, the minor reconfiguration of the layout, the infilling of voids over the entry (at the top of the stairs and adjoining the master bedroom) and the extension of the “void” area (at the rear) at the first floor level;

7.4 Minor window/glazing reconfigurations in the front façade to achieve structural specifications;

7.5 Deletion of two windows and minor window reconfigurations to the northern (side) elevation;

7.6 Window reconfigurations to the southern (side) elevation, including to achieve structural specifications.

19. It was observed at the site viewing that some of the constructed works were not as depicted in the Class 1 application. These inconsistencies are generally shown on the architectural plans tendered as Ex D including:

• Differences to the basement walls, particularly around the ‘store’ room. Sink facilities installed in the ‘comms’ area.

• Differences to works in the rear area including the size of the pool and retaining wall shape.

• Differences in some internal walls.

Section 6.26(2) Request

20. Section 6.26(2) of the EPA Act 1979 permits a consent authority to request information to enable determination of a BIC. Section 6.26 is set out below:

6.26   Miscellaneous provisions relating to building information certificates

(cf previous ss 149A, 149C, 149D, 149G)

(1)  A building information certificate may apply to the whole or to part only of a building.

(2)  On receipt of an application for a building information certificate, the council may, by notice in writing served on the applicant, require the applicant to supply it with such information (including building plans, specifications, survey reports and certificates) as may reasonably be necessary to enable the proper determination of the application.

(3)  If the applicant is able to provide evidence that no material change has occurred in relation to the building since the date of a survey certificate which, or a copy of which, is supplied to the council by the applicant, the council is not entitled to require the applicant to supply a more recent survey certificate.

(4)  If the council refuses to issue a building information certificate, it must inform the applicant, by notice, of its decision and of the reasons for it.

(5)  The reasons must be sufficiently detailed to inform the applicant of the work that needs to be done to enable the council to issue a building information certificate.

(6) The council must not refuse to issue or delay the issue of a building information certificate by virtue of the existence of a matter that would not entitle the council to make any order or take any proceedings of the kind referred to in section 6.25(1)(a) (Issue, nature and effect of building information certificate).

(7)  Nothing in this section prevents the council from informing the applicant of the work that would need to be done before the council could issue a building information certificate or from deferring its determination of the application until the applicant has had an opportunity to do that work.

(8)  The council must keep a record of building information certificates issued.

(9)  A person may inspect the record at any time during the ordinary office hours of the council.

(10)  A person may obtain a copy of a building information certificate from the record with the consent of the owner of the building.

21. On 21 February 2025, Council issued a notice for information pursuant to s 6.26(2) (s 6.26 Notice) (Ex 7). The s 6.26 Notice required a number of matters to be addressed, including in summary:

1. Documentary evidence of mandatory inspections undertaken by the principal certifier.

2. Documentary evidence from the principal certifier as to why inconsistencies observed during inspections were not noted and why written direction orders were not served, including for:

1. The infill section of the car lift.

2. Over excavation at the basement level for the bathroom, sauna, steam room.

3. Justification for any missed inspections, inconsistencies in the as built development and why variations were allowed to be built.

4. Documentary evidence of certification for structural, stormwater and framing inspection by a structural engineer and the dates of inspections undertaken by the appointed accredited certifier.

5. Inadequate payment of fees for the BIC application.

6. Cover letter describing what works the BIC application relates to and why a orders were not issued.

7. Evidence regarding footings and construction methodologies and related materials.

8. Information to determine compliance with various requirements of the Building Code of Australia NCC Volume 2.

9. Evidence regarding any potential impacts on the adjoining footings and structural integrity of 36 Denison Street.

10. Certification for plumbing, sewer connections, electrical installation and waterproofing.

11. Ventilation for the lower ground floor.

12. Works as executed or proposed plans for the mechanical exhaust system to ventilate the basement.

13. Basement electrical layout plan.

14. Proposed uses in the basement.

15. Plumbing certification for the sewer connection in the basement and precautionary measures to prevent surcharge of the system due to pump failure, as the sewer main is understood to be higher than the sewer connection.

16. Location of solar and batter systems.

17. Amended plans showing dimensions in the garage to ensure it complies with the Australian Standards for carparking spaces.

18. Performance solution details for the strip drain at the rear of the property.

19. Provision of hydraulic calculations for the size of the rainwater tanks for the rear, in lieu of the OSD that was to be installed under the front of the dwelling. Works as executive drainage plan to be provided with alternative power sources.

20. Works as executed plans and drainage systems for the planter boxes.

21. Structural and geotechnical reports for works undertaken near the road reserve to ensure ongoing stability of the road reserve and public land.

22. Structural and geotechnical reports for the basement.

23. Scope of works from a licenced builder for the removal of the external rear slab and foundation material between the pool and rear of the dwelling to provide deep planting space and 8m high canopy tree.

24. Final as built survey, architectural plans and stormwater plans specifying the finished roof height, levels of the building, boundaries, services, spot levels, vegetation, easements, and any variances with the approved DA plans.

22. The Applicant provided voluminous information in response to the s 6.26 Notice, including:

1. Inspection reports, structural plans and certificates.

2. Evidence of fee payments.

3. Amended architectural plans (also relied on as works as executed plans) (s 6.26 plans).

4. Building Code of Australia Assessment Report prepared by Building Control Group dated 3 March 2025.

5. Confirmation of solar panels and battery system within the garage as exempt development.

6. Amended stormwater plans.

7. Structural engineering plans and certification from the construction certificate and an independent structural engineer.

8. Confirmation that the rear slab is a thin, non-reinforced slab that will be removed and reinstated as landscaped area following construction.

9. Boundary delimitation surveys.

23. Of the documentation requested, the Applicant did not provide information relating to:

1. Documentary evidence of any inconsistencies noticed at the inspections or orders about the inconsistencies.

2. Electrical services (not required for a BIC application).

24. The Applicant expressly submitted that it did not seek to amend the BIC application and was providing information sought by Council through its s 6.26 Notice.

Differences between the filed BIC plans and s 6.26 plans

25. The filed BIC plans and s 6.26 plans are different in the following ways.

26. Basement level:

Figure 1: Filed BIC Plan - Basement Level

Figure 2: S 6.26 Plan - Basement Level

1. Filed plans indicate the BIC works as:

1. Walls as shown in purple.

2. Walls around the bath, steam room and sauna room.

3. Internal store and wine cellar room walls.

2. Section 6.26 plans:

1. Works shown in the filed plans.

2. Northern basement wall is shown with a boundary setback where it was nil setback.

3. Stairs are now included.

4. A sink area is shown in place of the ‘comms’ area.

5. The comms/plant room, previously labelled ‘store’ has changed shape and extends further south.

6. The wine cellar storage area and the comms/plant room are shown with a revised 8m setback from the boundary adjustment.

27. Ground Floor:

Figure 3: Filed BIC Plan – Ground Floor

Figure 4: S 6.26 Plan - Ground Floor

1. Filed plans indicate the BIC works as:

1. Walls shown in purple.

2. Internal walls (shown around the study, laundry, doorway to basement)

3. Whilst it is unclear, it appears that the doorways to the guest bed, ensuite, water closet and butlers pantry to the garage are included.

4. Living room extension and associated external walls.

5. Southern wall in the rear yard.

2. Section 6.26 plans:

1. Works shown in the filed plans.

2. ‘Relocation of walls’ of most internal walls including garage kitchen, butlers pantry, laundry and ensuite/water closet.

3. Parts of the external walls, around the front entry.

4. Changed rear setback.

5. Changed pool area (noting that the filed plans showed a larger than approved pool, but there is no indication on any of the plans or documentation that the pool formed part of the BIC application).

6. Modified southern wall in the rear yard including removal of seat.

7. Water tank shown in the rear yard where the BBQ was located.

8. Alignment between the dwelling to the north has changed, with the subject building appearing more closely aligned to the rear of the adjoining dwelling.

9. Modification of the northern landscaped along the driveway.

10. Inclusion of rear garage area.

11. Widening of garage from 3.6m to 3.925m and minor reduction in garage length from 5.5m to 5.48m.

28. First floor:

​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​

​​​​​​​​​​​​​​

Figure 5: Filed BIC Plan – First Floor

Figure 6: S 6.26 Plan – First Floor

1. Filed plans indicate the BIC works as:

1. Walls, floors and windows shown in purple.

2. Infill, reduction in void area and additional floor area for the master bedroom.

3. Removal of window from master bedroom.

4. New window to bathroom.

5. Infill of void area between the stairs, study and bedroom 2.

6. Void area above living room extension and associated external walls.

7. Increased window widths for all windows facing Evans Street.

2. Section 6.26 plans:

1. Works shown in the filed plans.

2. Internal walls to the master bedroom void, study, walk in wardrobe, bathroom, study and ensuite.

3. Changes to the window to bedroom 3.

4. Removal of awning above rear seat area.

29. Section plans:

Figure 7: Filed BIC Plan - Section

Figure 8: S 6.26 Plan - Section

1. The filed BIC plans included a section plan showing the extension of the dining area and extension of the basement bath/steam room.

2. The s 6.26 plans include a site and roof plan, section plan, elevation plans and others which reflect modifications to the rear extension, windows and front entryway.

3. The s 6.26 section plan appears to be taken from a different location as evidenced from the labelling of the basement area. However, this may be a mislabelling of the area as ‘bath’ instead of steam or sauna room. In any event, the section plan indicates that the filed BIC plans did not include the amount of internal works shown in the s 6.26 plans, shown in yellow/orange.

Applicant’s submissions

30. The Applicant submits that the works sought by the BIC application are found in the BIC form. These are supported by the information submitted through the NSW Planning Portal. There is nothing in the EPA Act 1979 which states which documents form part of the BIC.

31. Dr Berveling submits that none of the three contentions raised in relation to refusal of the BIC have been demonstrated. Contentions one and two are resolved / not pressed and contention three relates to mandatory inspections. The documentation of these inspections has been provided in response to the s 6.26 Notice in Ex D. There is no basis for refusal on these contentions.

32. The contention in relation to insufficient information has also been overcome by the information provided in Ex D. The information provided in response to Council’s excessive request is far greater than would usually be provided for BIC applications. Read with the construction certificate plans, there are no information gaps for the construction and structural adequacy of the dwelling.

30. The discrepancy between the site area as granted development consent and the BIC application has been resolved through the Delimitation of Title survey, which had not previously been undertaken.

31. The Applicant submits that a consent authority has power to request information to inform its assessment pursuant to s 6.26(2) of the EPA Act, which it has exercised. In response to the s 6.26 Notice, further information has been provided by the Applicant to support the application. Building plans are expressly identified. Council’s powers under s 6.26(2) impose an inherent right/obligation for the Applicant to respond and for Council to accept and consider the information provided.

32. Dr Berveling submits that these documents issued in response to the s 6.26 Notice became ‘fused’ to the BIC application and form part of the documentation to allow the consent authority to assess and determine the application. This information does not constitute an amendment, but an inherent right of response to the request of Council. Scarf is therefore not relevant as no amendment is sought.

33. Dr Berveling submits that the decision in Smith v Camden Council [2025] NSWLEC 1027 (Smith) is relevant. In Smith, leave was sought and granted to rely on updated site and section plans, updated structural engineering report and an updated floor study. The Commissioner accepted the information and plans as more accurately depicting the location of the works than the previous plans as a clarification and not an amendment.

Council’s submissions

37. Mr Wright SC for Council submits that a preliminary question in these proceedings is the scope of the BIC to be assessed. The BIC application as lodged is for part of the building only.

38. Council submits that the state of the plans and information provided as part of the BIC application is wholly unsatisfactory and the Court cannot properly exercise the function to determine whether a direction can be made to issue a BIC under s 6.25 of the EPA Act. The applicant bears the persuasive burden of proof: Australian Protein Recyclers Pty Limited v Goulburn Mulwaree Shire Council [2006] NSWLEC 641.

39. Council submits that it is unclear as to what the Applicant seeks to regularise. The filed BIC plans and BIC application description are inconsistent and do not reflect what was observed on site and understood by Council in its SOFAC. The BIC application is not capable of being issued.

40. Council submits that they sought clarification about the BIC application through a request to identify those works in the s 6.26 Notice. A cover note was not provided, but as described by the Applicant, ‘amended architectural plans which clearly identify the parts of the building to which the application relates’ were provided which:

• ‘In brief, they are:

• Basement footprint and layout;

• Ground floor footprint and layout’

• First floor layout and extent of voids;

• Fenestration in front and side elevations;

• Site layout.’

41. Council submits that the s 6.26 plans show more changes to the DA approved plans. These are shaded in orange and were not shown on the filed BIC plans in purple. Further works including relocation of walls have been shown in brown. These were not shown in purple on the filed BIC plans or were vaguely described. The s 6.26 plans purport to show the previous and new title boundaries of the site in accordance with the Plan of Delimitation. Council’s evidence is that the boundaries shown on the Plan of Delimitation do not correspond with the plans and that the usual starting point of receiving an as-built survey has not been provided.

42. Council submits that the filed BIC plans are unclear in their scope and lack adequate dimensions. The s 6.26 plans do not provide clarity on the scope of the BIC or dimensions.

43. Mr Wright SC submits that the Applicant’s ‘fused’ approach is legally flawed. Section 6.26(2) allows a consent authority to request information to enable the ‘determination of the application’, not to change the application.

44. Mr Wright SC submits that the decision in Smith is not relevant, as s 6.26 was not considered and the supplementary information did not amend the BIC application. The supplementary information in Smith more accurately depicted the location of pipes that formed part of the BIC application. By contrast, the Applicant’s s 6.26 plans identify works that are materially different to those identified in the BIC application and filed BIC plans and confuse rather than clarify the BIC application works.

Consideration and findings

45. I firstly find that the extent of works sought by the BIC application are those articulated on the BIC application form and filed BIC plans as originally filed to the Court. The BIC application form and its accompanying documentation should be considered together in order to understand what works form part of the BIC application. In this instance, the filed BIC plans both identify on the drawings and describe the sought after works on the plans beyond what is described on the BIC application form. I accept that the filed BIC plans should be read with the BIC application form on this basis.

46. I am unable to accept that the s 6.26 plans form part of the BIC in the manner sought by the Applicant, as they do not clarify or supplement the BIC application. The information provided by the Applicant on the s 6.26 plans is vastly different and shows further works not shown on the filed BIC plans. Though I note that the works shown on the s 6.26 are generally consistent with what was observed on site, that does not overcome the many works shown on these plans that are inconsistent with or not shown on the filed BIC plans.

47. In lieu of a provision that allows an amendment to a BIC application, Dr Berveling’s proposition that documentation provided pursuant to s 6.26(2) can form part of the BIC is a tempting procedural mechanism. However, I accept Mr Wright’s submissions that the provision does not use language that supports a ‘folding in’ or fusing of those documents and plans into the BIC application. Particularly to the extent sought by the Applicant which includes changes to the identified works.

48. Section 6.26(2) specifically allows for the provision of information, including building plans. In accepting Mr Wright’s submissions, I find that the information provided in response to s 6.26(2) needs to be consistent with the BIC as lodged. I accept that there is scope within s 6.26(2) for an Applicant to provide information or an amended drawing that might better describe the exact location of the works. For example, a detailed survey might have the effect of clarifying the exact location of a wall relative to its boundaries. But this needs to be consistent with the building works sought by the BIC application and not go as far as to constitute an actual or effective amendment of the BIC application. I consider the changes/inconsistencies further below.

49. I find that the s 6.26 plans go beyond clarifying what the BIC application seeks to regularise, but instead seeks to introduce changes that would constitute an effective amendment.

50. This finding is consistent with Smith. I agree with Mr Wright SC that information pursuant to s 6.26(2) was not before the Commissioner. In any event, the Commissioner states at [33] and [35] that the updated site plan and section merely clarify the location of works and that there is no amendment to the BIC as lodged.

51. Secondly, I accept that a BIC cannot be issued and adopt as my reasoning Mr Wright’s submissions, summarised at [37]–[44].

52. I find that the BIC application and filed BIC plans are inconsistent with the works observed on site. Some of the works could be dealt with in subsequent BIC applications, however most of the works shown on the filed BIC plans are inconsistent with what is on site. These inconsistencies include parts of the basement, and parts of the rear yard and internal walls on the ground floor and first floor. The s 6.26 plans demonstrate that many of the internal walls are not in the same location or have further changes than the filed BIC plans. These inconsistencies are set out in detail at [25]-[29].

53. The inconsistency is beyond segregating certain works that could be dealt with by further BIC applications. Issuing a BIC on the basis of the filed BIC plans would be inconsistent with what was observed on site. As the Respondent’s experts stated in oral evidence, the starting point is usually an as-built survey from a registered surveyor. This would have greatly assisted in accurate architectural plans.

54. Therefore, there is no certainty as to what works are the subject of the BIC application and the filed BIC plans are an inaccurate depiction of the works as constructed. Council cannot be directed to issue a BIC on this basis.

The notional development application

55. Having found that the BIC application is not capable of being issued, there is little utility in considering the remainder of the matters raised. However, I would have found that the broad merits of a notional development application (notional DA) for the works for the purposes of s 6.25(1)(a) lacked sufficient evidence for the reasons set out below.

56. I accept that one of the broad merit issues that should be considered in the notional DA assessment of this application includes gross floor area (GFA) and the increase in floor space ratio (FSR) further above the development standard. The BIC application works result in a basement that is radically different from what was given development consent and sufficient evidence was not adduced to notionally justify a further departure to the FSR development standard.

57. The basement was granted consent on the basis of it being primarily for car parking (including car lift and turntable), storage, plant, bin storage and stairs. The basement as inspected and indicated on the filed BIC plans show:

1. Three rooms for a bathroom, steam room and sauna room (totalling approximately 15.95m²).

2. Multipurpose storage area with sink (approximately 52.08m²).

3. Second ‘store’ area (approximately 6.5m², though the site viewing revealed to room to the slightly larger as depicted on the s 6.26 plans).

4. Wine cellar room (approximately 22.88m²).

5. Stair access along the northern boundary instead of southern into the dwelling.

58. I accept Dr Berveling’s submissions that the bathroom, sauna and steam room would be excluded from FSR as they are not habitable rooms in a basement. I accept that the wine cellar room and store room are excluded from FSR (as per the GFA definition (e)(i)).

59. I accept Mr Wright’s submissions that, on the basis that the Leichardt Development Control Plan 2013 (DCP) provides a minimum parking rate of nil, any car parking provided is GFA. As the DCP provides both a minimum and maximum, the maximum car parking rate is not one which is a requirement of the consent authority and therefore not excluded from the GFA definition (f). The garage is GFA.

60. I consider that the extent of the ‘multipurpose storage area’ with sink, which is in addition to another storage area and wine cellar, should be included as gross floor area. As shown on the filed BIC plans, the ‘multipurpose storage area’ is a large space of 52m² that appears beyond the storage needs of a dwelling. There are already two storage areas in the form of a ‘store’ room and wine cellar room. It is not sufficient to simply label the majority of the floor area as ‘storage’ so that it is excluded from FSR.

61. The above ground works primarily impact on solar access, streetscape and landscaping. The evidence from the Applicant’s expert in relation to solar access and the streetscape are accepted in light of surrounding development and the minimal decrease in solar access to the subject site.

62. In relation to landscaping, I accept Mr Wright’s submissions that the provisions have not been properly considered. Clause 4.3C of the Inner West Local Environmental Plan 2022 (IWLEP) is a relevant consideration to the notional DA and the other landscaping requirements in the DCP. Though not applicable at the time, the development consent as granted complied cl 4.3C of the IWLEP. There was inadequate evidence provided during the hearing that sought to broadly address this development standard. I accept Council’s calculations regarding the landscaped areas that could be included for the purposes of cl 4.3C. In oral evidence, there were fair concessions made by the Applicant’s expert that further landscaping could be provided. I similarly accept the Respondent’s evidence that the current information did not indicate where the canopy trees were to be placed, as required by currently applicable conditions of consent. For these reasons, the notional DA consideration of landscape is inadequate and the environmental impacts have not been addressed.

63. In relation to stormwater, the Applicant provided further information in response to the s 6.26 Notice including:

1. Amended stormwater drainage plans prepared by Transcivic Engineering dated 14 February 2025.

2. Stormwater drainage certification prepared by Transcivic Engineering dated 19 February 2025

3. An undated Basement Flooding Contingency Plan with no author and unknown expertise.

4. Stormwater, Sewer and Plumbing Certificate prepared by Emjay and Co Pty Ltd dated 10 February 2025.

5. Stormwater and Sewer Layout Details dated 3 March 2025.

64. Though this documentation provides further information, it raises other issues about consistency of the BIC application and the still applicable conditions of consent, as the stormwater management system has changed from the front to the rear. Whether the system had been constructed was unclear, as the certificate relates to a grated drain near the rear sliding door and the oral evidence was unclear on this issue. The Basement Flooding Contingency Plan did not have any author and its expertise to address its stated purpose is unknown. I therefore accept Council’s mostly unchallenged evidence about the uncertainty of stormwater management on site and whether the information provided met the applicable standards and conditions 23, 26, 34, 35 and 39. I note that the BIC also did not seek regularisation of stormwater works, should they be specifically required.

65. Based on the above, the provisions of s 6.25(1) have not been addressed by the BIC application and raise matters discernible by the exercise of reasonable care and skill that would entitle Council to take enforcement action.

Conclusion

66. For the reasons I have given above, the inconsistencies within the BIC application, filed BIC plans, documentation in response to the s 6.26 Notice, and what was observed at the site viewing mean that there lacks certainty about what works form part of the BIC application. I am unable to rely on the filed BIC plans as they are inaccurate. I am unable to rely on the s 6.26 plans as that would result in an amendment to the BIC, of which there is no power.

67. Council cannot be directed to issue a BIC based on these discrepancies. The appeal must be dismissed.

Orders

68. The Court orders:

1. The appeal is dismissed.

2. All exhibits are retained.

S Porter

Commissioner of the Court

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Amendments

26 June 2025 - Application pursuant to r 36.17 of the Uniform Civil Procedure Rules 2005 (the “slip rule”) made on behalf of the Respondent, with the Consent of the Applicant. As amended as follows:

(1) The title of Figure 5 at paragraph 28 from ‘Filed BIC Plan – First Floor’ to ‘Filed BIC Plan – Ground Floor’ to reflect the correct picture titles as documented in the hardcopy judgement.

(2) Change the formatting at paragraph 40 to be dot points instead of numbers, as evident in the hardcopy judgement.

(3) Add a missing word (and) to paragraph 64.

Decision last updated: 26 June 2025