Sheree Waks v Inner West Council

[2017] NSWLEC 1321

Land and Environment Court

New South Wales

Medium Neutral Citation:	Sheree Waks v Inner West Council [2017] NSWLEC 1321
Hearing dates:	14 - 15 November 2016; 25 May 2017
Date of orders:	23 June 2017
Decision date:	23 June 2017
Jurisdiction:	Class 1
Before:	Martin SC
Decision:	(1) The appeal is upheld. (2) Pursuant to s 149 F(3) of the Environmental Planning and Assessment Act 1979 the Council is directed to issue a building certificate to the Applicant in accordance with the form annexed and marked “IWC1” within 28 days of the date of this judgment. (3) The Exhibits, save for Exhibits 1, 3 and 4, are returned.
Catchwords:	Building certificate application in respect of dual occupancy – rectification works – fire safety certificate
Legislation Cited:	Environmental Planning and Assessment Act 1979 ss 149D, 149F(1)(a) Environmental Planning and Assessment Regulation 2000 cll 170, 175
Category:	Principal judgment
Parties:	Sheree Waks (Applicant) Inner West Council (Respondent)
Representation:	Counsel: Mr D Baird (Applicant) Mr J Thompson (Respondent) Solicitors: Baird Lawyers (Applicant) Ritchie & Castellan Solicitors (Respondent)
File Number(s):	2016/221524
Publication restriction:	No

Judgment

1. Ms Sheree Waks is the co-owner of a property at 136 Louisa Road, Birchgrove, described as Lot 2 DP 592489 (the Site). The Council approved a Development Application for alterations and additions to the house to convert it to a dual occupancy on 4 January 1993, and a Building Application was approved on 20 May 1993.

2. It is a substantial home, as you would expect given its beautiful surroundings, comprising a five level rendered dwelling with a tile and concrete roof. There is also a single garage at street level.

3. On 22 March 2016 Ms Waks lodged an application with the Council for a building certificate “to cover unauthorised works undertaken 23 years ago”. This work comprised “additional bedrooms, bathrooms, doors, laundry areas, moving of doors”.

4. The Building Certificate application sought to address alleged unauthorised works as set out in a summons filed in respect of Class 4 civil enforcement proceedings (2016/159684) [Applicant’s Notice of Motion dated 31 August 2016].

5. The Council refused the application on 12 July 2016. In its letter of that date, the reasons for refusal it gave were as follows:

• It is considered that the extent of the unauthorised works allows for the building to be used for a different purpose that that approved under the [building approval issued in 1993] for the use as a dual occupancy for two separate sole occupancy units;

• The fire safety measures contained in the building are inadequate;

• Health and safety measures contained in the building pose a risk to people using the building due to inadequate barriers;

• The empty pool poses an unacceptable risk;

• The collection of water in the bottom of the pool could result in unhealthy conditions.

6. The refusal letter also set out a number of matters required to be attended to by the owner before a building certificate could be issued.

7. It is in respect of this refusal that the Applicant has brought her appeal under s 149F of the Environmental Planning and Assessment Act 1979 (the EPA Act).

8. In its response to this appeal, the Council’s Statement of Facts and Contentions (dated 29 September 2016) raised two groups of issues to support its contention that the appeal be refused: firstly, the Application was incomplete, for example drawings showing proposed works were absent, and insufficient information had been provided to the Council in support of the Applicant’s application. Secondly, the building was not safe, did not restrict the spread of fire and was not fit for occupation and use in accordance with its classification under the National Construction Code – Building Code of Australia.

9. Importantly, the Council’s contentions were framed around a significant assumption:

that the Applicant accepts and will comply with the terms of the current development consent for the use of the building as a Dual Occupancy. Further it is assumed, noting the terms of the Orders made by the Court, by consent, 18 December 2015 and entered 5 January 2016, in LEC Case no 40645 of 2015, that the use will remain a Dual Occupancy (class 2 building under the National Construction Code (NCC) – Building Code of Australia (BCA) [Statement of Facts and Contentions p 6].

10. In considering this appeal, the Court has proceeded upon the same assumption as to lawfulness.

11. The relevant provisions governing the issuing of building certificates are contained in Part 8 of the EPA Act. It provides a mechanism whereby upon the satisfaction of certain matters, a building certificate is able to be issued to regularise a breach of the planning law.

12. Section 149B sets out who may apply for a building certificate, which in this case includes the Applicant. Under the relevant terms of s 149 D(1), a Council must issue a building certificate 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 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.

13. In terms set out in some detail at s149E the granting of a building certificate also provides some protection to the holder of that certificate, while retaining a Council’s ability to take certain kinds of enforcement action as the need arises.

14. The Court has a number of options in terms of the decision which it can make following its determination of this kind of application. Its jurisdiction is provided for at s 149F as follows:

(3) On hearing the appeal, the Court may do any one or more of the following:

(a) it may direct the council to issue a building certificate in such terms and on such conditions as the Court thinks fit,

(b) it may revoke, alter or confirm a notice under section 149C,

(c) it may make any other order that it considers appropriate.

Site inspection and Expert Evidence

15. On behalf of the Applicant, Mr Swan provided an Expert Report on town planning matters [Ex C] and Mr Miladinovik, structural engineer, provided an Expert Report on the soundness of the building [Ex B]. Mr Daintry, a consultant town planner and Environmental Health and Building Surveyor, prepared an Expert Report for the Council [Ex 2 Tab 7]. A joint Expert Report dated 10 November 2016 [Ex 1] was prepared by Mr Scheffers for the Applicant and Mr Daintry for the Council. Mr Scheffers is a consultant Building Surveyor. A further joint report (prepared on 25 May 2017) was authored by Mr Scheffers and Mr Daintry to confirm the relevant works had been completed [Ex A].

16. It is uncontested that the building is structurally adequate. in his expert report dated 4 November 2016, Mr Miladinovic concludes

“In relation to all the matters observed, I am of the opinion that there is no impact whatsoever on the overall structure and that the structural integrity of the dual occupancy building premises at 136 Louisa Road Birchgrove has not been compromised in any way as a result of the said unapproved works”: [B2.2]

17. Turning to the first expert report prepared by Mr Scheffers and Mr Daintry [Ex 1], that report considered a number of issues, including the contested question of whether or not this appeal ought to consider the use of the Site. Ultimately, as discussed further below, the matter has proceeded on the basis that the use is for a dual occupancy. Accordingly, any evidence asserting otherwise was not relied upon in this hearing.

18. The matters which were agreed between the experts as requiring consideration were as follows:

• Is the building fit for occupation and use in accordance with its classification under the Building Code of Australia?

• Are provisions for fire safety or fire safety awareness adequate to prevent fire, suppress fire or prevent the spread of fire or ensure or promote the safety of persons in the event of fire?

• Is the disused swimming pool safe?

19. The experts agreed that the building was unsafe in its current condition with respect to egress (stair construction); balustrading; protection of openings; limiting openable width of elevated windows; fire safety and swimming pool safety.

20. On 14 November 2016 in company with the Applicant, the parties’ legal representatives and Mr Scheffers and Mr Daintry, I inspected the Site, and was shown the areas of non-compliance as alleged by the Council which were subject to the building certificate application.

21. It was clear from the site inspection that there remained a considerable body of work to be undertaken by the Applicant before a building certificate could be issued. As a result of their inspection and consideration, the experts agreed upon a schedule of works to be undertaken to allow the Court to consider the application for the building certificate.

22. Accordingly, detailed Orders were made by the Court on 15 November 2016 to facilitate the Applicant’s compliance with the outstanding matters that required attention, with the most pressing matters (as identified by Mr Scheffers and Mr Daintry) being required to be completed first.

23. In order to allow sufficient time for these matters to be completed, the hearing was adjourned by consent until 25 May 2017. This course of action is consistent with the approach taken in the EPA Act whereby a Council may defer its determination of a building certificate application until the Applicant has had an opportunity to do work which would need to be done before the Council could issue a building certificate: s 149D(4).

24. Upon the resumption of the hearing some six months later, a further joint report was produced by Mr Scheffers and Mr Daintry, who had attended the Site on 25 May 2017. That further Joint Expert Report [Ex A] set out the findings of that joint site inspection.

25. Their observation was that the physical works required by the Short Minutes of Order made by the Court on 15 November 2016 had been undertaken. They agreed that the Applicant needed to procure an updated Fire Safety Schedule for the building and annex to that schedule all documents certifying compliance with the relevant standard to which the works have been undertaken [Ex A at [8]]. In addition, a Final Fire Safety Certificate and supporting certificate for each essential fire safety measure was required to be provided to the Council [Ex A at [9]].

26. Their concluding joint opinions are reproduced below:

We agree that subject to the resolution of provision of the Fire Safety Schedule, a Final Fire Safety Certificate and supporting certification for each essential fire safety measure, that the Court may then be satisfied that the Building Certificate can be issued for a Class 2 building under the Building Code of Australia: [Ex A at [11]].

27. It is worth setting out both the effect and definition of the Fire Safety Certificate, as provided in cl 170 of the Environmental Planning and Assessment Regulation 2000. That clause provides:

A final fire safety certificate is a certificate issued by or on behalf of the owner of a building to the effect that each essential fire safety measure specified in the current fire safety schedule for the building to which the certificate relates:

(a) has been assessed by a properly qualified person, and

(b) was found, when it was assessed, to be capable of performing to at least the standard required by the current fire safety schedule for the building for which the certificate is issued.

28. By virtue of cl 175, an annual fire safety statement will be required to be issued by or on behalf of the owner of a building to the effect that

(a) each essential fire safety measure specified in the statement has been assessed by a properly qualified person and was found, when it was assessed, to be capable of performing:

(i) in the case of an essential fire safety measure applicable by virtue of a fire safety schedule, to a standard no less than that specified in the schedule, or

(ii) in the case of an essential fire safety measure applicable otherwise than by virtue of a fire safety schedule, to a standard no less than that to which the measure was originally designed and implemented, and

(b) the building has been inspected by a properly qualified person and was found, when it was inspected, to be in a condition that did not disclose any grounds for a prosecution under Division 7.

29. The Council made oral submissions that, provided Mr Scheffers (the Applicant’s expert) provided the Fire Safety Schedule referred to in [25] above, the Council would accept that it would be appropriate for a building certificate to be issued. This is the point at which the matter has arrived.

30. So as to enable the matter to proceed to a conclusion, consent Orders were made by the Court on 25 May 2017 including the following terms:

• The Applicant was ordered to prepare a Fire Safety Schedule prepared by Mr Scheffers in relation to the works required to be done in the Short Minutes of Order of 15 November 2016 and executed by the Applicant by 29 May 2017;

• A final Fire Safety Certificate and supporting certification for each essential fire safety measure, also prepared by Mr Scheffers, was ordered to be served on the Council by 31 May 2017.

Consideration and Findings

31. At the outset, it is important to reiterate that this is an appeal in respect of the refusal to issue a building certificate. It is not an appeal in respect of use, which was approved through the issue of development consent for a dual occupancy over 20 years ago, and reinforced through subsequent enforcement proceedings brought by the Council, in respect of the permitted use of the premises as a dual occupancy.

32. These proceedings have resulted from inspections by the Council, where the Council in the past has considered that the premises may have been used for purposes other than a dual occupancy. Given the nature of the building certificate sought in these proceedings the question of future compliance inspections necessarily lie with the Council rather than this Court. I am not undertaking any assessment of the fitness of the building for any use other than a dual occupancy.

33. To the extent that the Council has concerns about the alleged use of this Site, and its permissibility, it is for the Council to address such matters in the future if required. Indeed, as noted above, in the past the Council has done just this. In its submissions the Applicant has referred the Court to Consent Orders made in Class 4 Proceedings (2016/221524) dated 5 January 2015 which is in the following terms:

The respondents and each of them be restrained from using the dwelling situated at Lot 2 in Deposited Plan 592489, 136 Louisa Road, Birchgrove, NSW … for any purpose other than a dual occupancy as defined by Leichhardt Local Environmental Plan 2013.

34. Ultimately in its written submissions of 6 June 2017 the Council did not put any submissions in rebuttal to the Applicant’s submissions that, the work having been completed, the building certificate now ought be issued. Not only did it not contest the Applicant’s request, the Council now states that is has no objection to an Order being made that it issue a building certificate in accordance with the form the Council provided to the Court.

35. The Council’s present position stands in contrast to the submission it put when the hearing of this matter first commenced in November 2016. At that time the Council then submitted that the unauthorised works were in excess of what one might expect to find in a dual occupancy. This, said Mr Thompson, was a matter which went to the discretion of the Court. The Council has not pressed this position.

36. I also note that there is a strong public interest in having the works approved and regularised, and rendered subject to the oversight of the Council, in particular through its role in relation to fire safety matters.

37. On the basis of the evidence referred to above, and the submissions of the parties, including in particular the submission from the Council that the Council has no objection to an Order being made by the Court that it issue a building certificate in accordance with the form annexed, I am satisfied that it is appropriate for a building certificate to be issued.

Orders

38. The Orders of the Court are:

1. The appeal is upheld.

2. Pursuant to s 149 F(3) of the Environmental Planning and Assessment Act 1979 the Council is directed to issue a building certificate to the Applicant in accordance with the form annexed and marked “IWC1” within 28 days of the date of this judgment.

3. The Exhibits, save for Exhibits 1, 3 and 4, are returned.

…………….

Rosemary Martin

Senior Commissioner

221524.16 (IWC 1 Amended PLans) (699 KB, pdf)

Decision last updated: 26 June 2017