Wilkie v Blacktown City Council

[2015] NSWLEC 1084

Land and Environment Court

New South Wales

Medium Neutral Citation:	Wilkie v Blacktown City Council [2015] NSWLEC 1084
Hearing dates:	2 March 2015
Decision date:	26 March 2015
Jurisdiction:	Class 1
Before:	Brown C
Decision:	1. The appeal is upheld. 2. DA-14-715 to use an existing structure for a dwelling house at 106 Robert Street, Riverstone is approved subject to the conditions in Annexure A. 3. The exhibits are returned with the exception of exhibits 2, A and C.
Catchwords:	DEVELOPMENT APPLICATION: use of an existing structure for a dwelling house – whether adequate damp proofing provided for human habitation
Legislation Cited:	Building Code of Australia Environmental Planning and Assessment Act 1979
Category:	Principal judgment
Parties:	Sophia Wilkie and Martina Srbek (Applicants) Blacktown City Council (Respondent)
Representation:	Counsel: Mr M Fozzard, barrister (Applicants) Mr P Couch, solicitor (Respondent Solicitors: - (Applicants) Spark Helmore Lawyers (Respondent)
File Number(s):	10535 of 2014

Judgment

1. COMMISSIONER: This appeal relates to DA-14-715 to use an existing structure for a dwelling house at 106 Robert Street, Riverstone (the site).

2. The appeal was subject to mandatory conciliation and arbitration on 21 October 2014, 28 October 2014 and 4 December 2014 under s 34AA of the Land and Environment Court Act 1979 (the Court Act). As no agreement was reached, the conciliation conference was terminated on 16 December 2014, pursuant to s 34AA(2)(b), and the proceedings dealt with pursuant to s 34AA(2) b)(i) on 2 March 2015 and on the basis of what occurred at the conciliation conferences pursuant to s 34AA(2)(b)(ii).

3. The contentions raised by the council limit the dispute to whether there is adequate evidence that there is sufficient damp proofing under the slab to allow the structure to be used for human habitation. The council maintains that a deferred commencement condition should be placed on any consent to ensure that appropriate treatment is provided to the slab to ensure that moisture does not enter the proposed dwelling.

4. The applicant maintains that a deferred commencement condition is not required as there is no uncertainty about the damp proofing under the slab and that an operative condition is appropriate.

5. The council also raised the absence of any evidence of termite protection however the applicant agreed to provide the necessary details.

History of the site

6. 17 December 1979 - council granted an interim development consent under Part XIIA of the Local Government Act 1919 for development described as "Brick Veneering and Garage". This consent permitted the erection of a garage (the Garage) and the brick veneering and extension of an existing dwelling.

7. Between 1979 and 1981 - the Garage was erected.

8. On or about 22 June 2009 - building works were undertaken on the site. The building works included alterations, increasing the dimensions of the Garage and the construction of internal walls, rooms and facilities such as a bathroom and laundry so as to convert the Garage into a dwelling.

9. Development consent under the Environmental Planning and Assessment Act 1979 (EPA Act) was required for building works and the change of use of the Garage to a dwelling. Development consent was not sought prior to the commencement of building works on the Garage.

10. 15 July 2009 - the Applicants lodged a development application for alterations and additions to the Garage (DA-09-1657).

11. 13 August 2009 - council refused DA-09-1657.

12. 28 August 2009 - council gave an order under section 121B of the EPA Act to the applicants. That order required the applicants to:

1. demolish or remove dwelling and recently constructed additions from the premises; within 90 days of the date hereon

13. The "dwelling" referred to in the order was in fact the Garage.

14. On or about 27 January 2010 - the dwelling was destroyed by fire.

15. 24 December 2010 - the applicants lodged a development application for "legalisation of a dwelling and alterations and additions to the building" (DA-10-2926).

16. 18 November 2011 - council refused DA-10-2926 on a number of grounds.

17. 15 December 2011 - an Order under s121B of the EPA Act was given to the applicants requiring them to demolish the dwelling on the site and remove all demolished material to an approved waste disposal facility within 90 days of that date. In this order the "dwelling" was in fact the Garage.

18. 9 January 2012 - the applicants lodged a Class 1 application against the refusal of DA-10 -2926 and two Class 1 applications appealing against the issue of the Order given by Council on 15 December 2011.

19. 9 August 2012 - the Land and Environment Court granted deferred development commencement consent (Wilkie v Blacktown City Council [2012] NSWLEC 1223) (the Consent). The Consent approved the alteration and additions to the Garage and the change of use to allow the Garage to be used as a dwelling.

20. Under Part A, the Consent did not become operative unless, within a period of 12 months from the determination date, the applicants provided evidence that satisfied the Council that:

a. Termite protection has been carried out on the existing slab for the buildings subject of the proceedings in accordance with Part 3.1.3.3 of the Building Code of Australia;

b. A certificate has been provided to Council to attest that the required termite protection works have been carried out in accordance with AS 3660.1-2000.

c. Certification has been provided to Council from a suitably qualified engineer that a damp proof membrane has been installed to the existing slabs for the buildings the subject of the proceedings, in accordance with Pt 3.2.2.6 of the Building Code of Australia; or

d. As an alternative to (c) certification has been provided to Council that an alternative building solution that complies with the performance requirements of P2.2.3 of the Building Code of Australia has been installed. Prior to any works commencing to install the alternative building solution, the Applicants were required to provide Council with a report that set out the alternative building solution and the assessment method in accordance with 1.0.0. of the Building Code of Australia that demonstrates compliance with the performance requirement at P2.2.3 under the Building Code of Australia. Works were not to commence to install the alternative building solution until Council confirmed in writing that it was satisfied that the applicable performance requirements will have been met upon installation of such alternative building solution.

21. The applicants did not satisfy the conditions of the deferred commencement matters and the Consent lapsed.

22. 5 March 2014 - council commenced Class 4 proceedings seeking a declaration that the applicants had, by occupying and using the Garage for the purposes of a dwelling, carried out development without development consent. Council also sought an order that the applicants be permanently restrained from using the Garage for the purposes of a dwelling without development consent.

23. 2 May 2014 - Justice Sheahan adjourned the Class 4 proceedings to allow the applicants to lodge a development application with council seeking approval for the use and occupation of the Garage on the land for the purposes of a dwelling.

24. The development application lodged by the applicants is now the subject of these proceedings.

The site

25. The site is Lot 24 in DP 10319. It has an area of 1.214ha. The site is currently occupied by the structure that is the subject of these proceedings, as well as a number of sheds and outbuildings that are used in conjunction with the residential use of the site.

26. The surrounding land is used for rural residential purposes, comprising a mix of rural residential dwelling types and associated sheds. Other land in the vicinity of the site is undeveloped and features remnant bushland.

Relevant planning controls

27. The site is zoned 1(a) General Rural under Blacktown Local Environmental Plan 1988 (BLEP). Clause 9(3) provides that:

(3) Except as otherwise provided by this plan, the consent authority shall not grant consent to the carrying out of development on land to which this plan applies unless the consent authority is of the opinion that the carrying out of development is generally consistent with one or more of the objectives of the plan and one or more of the objectives of the zone within which the development is proposed to be carried out.

28. The council raised no issue with the requirements in cl 9(3).

29. The site is subject to cl 12(3) of BLEP, which states:

12 Dwellings in rural zones

(1) In this clause:

parcel, in relation to land, includes an area of adjoining or adjacent land held in the same ownership.

(2) .

(3) Notwithstanding sub clause (2), a dwelling shall not be erected on a parcel of land within Zone No 1 (a) and marked "Clause 12 (3)" on the map unless the parcel of land has an area of not less than 10 hectares.

30. Clause 12(3) applies as the site has an area of 1.214ha, although the non-compliance was not a matter raised by the council. I note that an objection under State Environmental Planning Policy No 1 – Development Standards (SEPP 1) is contained in Exhibit C. I have read the SEPP 1 objection and agree that the compliance with the development standard in cl 12(3) is unreasonable and unnecessary in the particular circumstances of this case.

31. The site is within the area covered by State Environmental Planning Policy (Sydney Region Growth Centres) 2006. The land is situated within the Marsden Park North Precinct.

32. Blacktown Development Control Plan 2003 (BDCP) applies to the site, particularly Part A, Introduction and General Guidelines, and Part B, Development in the Rural Zones.

The adequacy of the damp-proofing

The evidence

33. Evidence was provided for the council by Mr Adam Whitehouse and for the applicant by Mr Tony Ransley.

34. In his expert report, Mr Whitehouse states that the only evidence of a damp-proofing membrane that has been presented by the applicant to date is one portion that was exposed on the eastern side of the structure. No evidence of a membrane has been provided to other parts of the slab or to the extension that was carried out between 2008 and 2010.

35. Mr Whitehouse acknowledges that the report titled "Special Purpose Building Report" prepared by Khosrow Ehteshami, and submitted with the earlier development application concludes that "damp course appears to be installed in accordance with the Building Code of Australia" and that "a flexible damp course of polycarbonate nature has been utilized into the brick works". Mr Whitehouse however maintains that this is inconclusive in that the report states that soil and vegetation were placed around the perimeter or part of the slab. It is unclear to Mr Whitehouse how the author of that report can be certain of the existence of a damp-proofing membrane to the entire slab given the soil and vegetation around the slab. Nothing in the report suggests that the material was dug away to enable a physical inspection to be carried out.

36. Mr Whitehouse states that his recollection of the structure, from previous inspections, was that the damp-proofing membrane was provided only to part of the slab and that there was no evidence of a damp-proofing membrane to the entire slab, or that damp proofing had been carried out to the joints in the slab.

37. The report also states that higher than typical moisture readings were observed inside the dwelling and that this was likely to be the result of the shower being recently used and floors having been mopped. Nothing in the report indicates that follow up readings were taken to give a more accurate account of the moisture readings in the dwelling.

38. In order to provide the appropriate level of damp proofing to satisfy Part 3.2.2.6 of the BCA, it would be necessary to provide a topping slab over the entire floor of the structure. The topping slab is a thin slab which is laid over the existing slabs and provided with a damp-proofing membrane between it and the existing slabs. This would also require the frame of the dwelling to be trimmed to fit atop the new slab.

39. While the applicant has previously offered an alternative solution that requires the monitoring of moisture levels and, if it is the case that moisture is discovered, then a topping slab or other means of dealing with the damp proofing be provided at that stage, Mr Whitehouse rejects this option because the tiled floor will make it difficult to monitor any moisture in the slab without periodically removing tiles throughout the structure. In the event of moisture rising though the floor slab, it may not become apparent until such time as moisture has entered the timber frame and started to swell or rot the timbers. In the event of moisture entering the structure, it may not be discovered until it is too late to take action to rectify any damage that may lead to health and amenity impacts, such as mould growth. In the event that the dwelling is sold, the onus to carry out the monitoring will fall upon the new owner. There is no mechanism in place to ensure that any future owner will be aware of the need to carry out the monitoring works.

40. Mr Whitehouse considers the better option is to ensure that moisture does not enter the structure in the first instance, rather than to deal with it in the event that it does.

41. Mr Ransley comes to a different conclusion. He considers that there is no evidence to suggest a chronic failure in the effectiveness of the vapour barrier, below the floor slab, or that moisture is rising through the floor slab or tiled floor surface, or is causing unhealthy conditions, affecting amenity, or causing building elements to deteriorate.

42. Mr Ransley conducted further moisture testing of materials at the base of walls, including brick, plasterboard and timber, as he considered these materials would be more likely to display evidence of absorptivity, rather than ceramic tiles, if dampness has been rising through the floor slab. Electronic moisture meter test readings, at the base of all internal walls and interior of external walls, were consistently between 11 and 18, which is considered typical for these materials. Readings taken higher up walls, for the purpose of comparison, were similar to the readings at floor level.

43. Based on the moisture readings observed inside the dwelling, Mr Ransley concludes that the concrete floor slab is performing to a level that achieves compliance with the Building Code of Australia Performance Provision 2.2.3 (a) Dampness (NSW variation). That is, there is no evidence of dangerous conditions, loss of amenity, undue dampness or deterioration of building elements. Provision 2.3 Dampness is the BCA Performance Provision relevant to the allegation that damp proofing does not satisfy Part 3.2.2.6 and the provision to which the building work is required to comply.

44. For this reason, Mr Ransley considers there is no need to provide a topping slab over the existing slabs to provide a damp-proofing membrane between it and the existing slabs. Even if it was found that moisture had reached the interior of the structure, Mr Ransley states that there are other means of addressing this without the need for a disruptive and expensive topping slab.

Findings

45. Prior to the hearing, Mr Whitehouse and Mr Ransley further inspected the slab. Since the last inspection, the applicant had excavated sections along the north, south and east sides of the structure. It was agreed by Mr Whitehouse and Mr Ransley that the existing slab was constructed in two parts. That part of the existing slab adjoining the excavated area was the older part of the slab (the old slab) and Mr Whitehouse and Mr Ransley accepted that that a waterproofing membrane could be observed at each of the excavated areas. The old slab has dimensions of around 9m x 9m (81 sq m).

46. That part of the slab adjoining the old slab to the west (the new slab), has dimensions of around 2.5m x 9m (22.5 sq m). It was constructed between 2008 and 2010. The new slab occupies part of the proposed lounge room, part of the bedroom and the en-suite to the bedroom. The division between the old slab and the new slab is not visible from inside the structure as the old slab and the new slab are covered in ceramic tiles. No excavation was provided on the western side of the slab.

47. Flowing from the observations of the excavations along the north, south and east sides of the structure, Mr Whitehouse and Mr Ransley agreed that only the area of the new slab remained in dispute however Mr Whitehouse maintained his previous position that a topping slab is required over the new slab to provide a damp-proofing membrane between it and the existing slab. Mr Ransley also maintained his position that there is no evidence to suggest a chronic failure in the effectiveness of the vapour barrier below the new slab.

48. In balancing the different conclusions of Mr Whitehouse and Mr Ransley, I prefer the conclusions of Mr Ransley, even though it is not without some doubt. While greater clarity could have possibly been achieved if there was excavation along the western edge of the new slab, however for whatever reason, this was not done.

49. I am satisfied that the conclusions of Mr Ransley should be accepted for a number of reasons. First, the moisture measurements taken by Mr Ransley cannot be ignored. While it was accepted that moisture readings can be unreliable on ceramic tile surfaces, the consistent readings over the new slab and the old slab and at different elevations above the floor supports the conclusions of Mr Ransley. While Mr Whitehouse chose not to comment, the evidence of Mr Ransley was that if there was moisture in the timber framing of the structure from the absence of a damp-proofing membrane, then it would have been noticeable in the moisture readings, given that the slab was poured between 5 and 7 years ago. I my view, this is not an unreasonable conclusion. I also note that no issue was raised to the actual moisture readings taken by Mr Ransley.

50. Second, the Certificate of Compliance (Exhibit E) from Savvas Polycarpou, Chartered Professional Engineer, dated 31 May 2011addresses the old slab and the new slab. The Certificate of Compliance states:

The underlay membrane to the whole of the existing subject building complies to AS 2870-1996 and the BCA

51. While Mr Whitehouse suggested that this document was not helpful as it addressed the old slab, there can be no doubt that the words “existing subject building” is a reference to the old slab and the new slab as the date of the Certificate of Compliance postdates the construction of the new slab (between 2009 and 2010). Also, the Certificate of Compliance states that “the existing slab consists of two parts”, although I accept that a greater description is provided on the old slab.

52. While Mr Whitehouse remains sceptical about the presence of a damp-proofing membrane under the new slab because there was no ability to observe the membrane at the edge of the slab; this skepticism is not sufficient to ignore the conclusions in the Certificate of Compliance in the absence of any evidence to the contrary.

53. Third, the report "Special Purpose Building Report" prepared by Khosrow Ehteshami (part Exhibit C), and submitted with the earlier development application concludes that:

..damp course appears to be installed in accordance with the Building Code of Australia.

54. The report also states that "a flexible damp course of polycarbonate nature has been utilized into the brick works". While Mr Whitehouse maintains that this is also inconclusive in that the report states that soil and vegetation were placed around the perimeter or part of the slab. Again, this skepticism is not sufficient to ignore the conclusions in the Special Purpose Building Report in the absence of any evidence to the contrary.

55. The report also contained inconsistent moisture readings however new readings were taken by Mr Ransley where he found consistency of readings over the old slab, the new slab and at various heights above the slabs to support his position that moisture had not penetrated the slabs.

54. Fourth, some consideration should be given to the future of the site. While this is not a matter that would, by itself, support Mr Ransley’s conclusion, it is nonetheless relevant given the likely costs associated with the construction of a topping slab. Mr Glenn Apps, a town planner with the council, stated that the site is within the area covered by State Environmental Planning Policy (Sydney Region Growth Centres) 2006 and is situated within the Marsden Park North Precinct. No timeframe could be provided for its rezoning for urban purposes although the planning for its ultimate release for the site and other land for urban purposes started last year. Mr Apps guardedly suggested that the site could be used for residential purposes in the future.

55. Even though no evidence was adduced on the likely future of the dwelling, it would not be difficult to conclude that the garage, even when converted to a modest dwelling, would not have a high priority for retention in the future urban development of the site and surrounding area. Consequently, the expense of a topping slab (even only over the new slab) could be seen as unreasonable, given its likely longer term use for urban purposes.

56. Based on these conclusions, the deferred commencement conditions sought by the council can be deleted.

Orders

59. The orders of the Court are:

1. The appeal is upheld.

2. DA-14-715 to use an existing structure for a dwelling house at 106 Robert Street, Riverstone is approved subject to the conditions in Annexure A.

3. The exhibits are returned with the exception of exhibits 2, A and C.

______________

G T Brown

Commissioner of the Court

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Decision last updated: 08 April 2015