Wllis v City of Ryde Council

[2009] NSWLEC 1106

Land and Environment Court

of New South Wales

CITATION:	Wllis v City of Ryde Council [2009] NSWLEC 1106
FILE NUMBER(S):	11134, 11135 and 11136 of 2008
CORAM:	Moore SC
KEY ISSUES:	APPEAL - BUILDING CERTIFICATE :- Demolition order Order to cease prohibited use
LEGISLATION CITED:	Ryde Planning Scheme Ordinance
DATES OF HEARING:	17 March 2009
EX TEMPORE JUDGMENT DATE:	17 March 2009
LEGAL REPRESENTATIVES:	APPLICANT In person RESPONDENT Mr J Strati, solicitor City of Ryde Council

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

MOORE SC

17 March 2009

08/11134 - KEN WILLIS v CITY OF RYDE COUNCIL
08/11135 - KEN WILLIS v CITY OF RYDE COUNCIL
08/11136 - KEN WILLIS v CITY OF RYDE COUNCIL

JUDGMENT

This decision was given as an extemporaneous decision. It has been revised and edited prior to publication.

1 SENIOR COMMISSIONER: The first application (08/11134) of the three matters that are before the Court seeks a building certificate for premises at 59 Anzac Avenue, West Ryde, upon which a number of elements have been constructed without council approval.

2 The second application (08/11135) is an appeal against an order issued by Ryde City Council ordering the owner of the premises, who is represented by Mr Willis as her agent in these proceedings, to cease using the premises as a boarding house; that being a use prohibited in the relevant zone by virtue of the zoning table in the Ryde Planning Scheme Ordinance.

3 The third application (08/11136) is an appeal against an order by the council to demolish some (but not all) of the structures that are the subject of the building certificate application.

4 On 4 February 2009, I conducted a conciliation conference pursuant to s 34(3) of the Land and Environment Court Act 1979 at the premises to see if the issues, in each of the three proceedings, could be resolved. When it became apparent that that was not possible in any of the proceedings, I terminated the conciliation conference in each of those proceedings. I was then, with the concurrence of the parties, requestedto hear and determine each of the appeals pursuant to s 34(4)(b)(ii) of the Act.

5 As a consequence I gave a number of directions in all proceedings. These directions were common for all three of them and were predicated on the basis that the parties had agreed that the discussions which took place during the s 34(3) conciliation process were to be carried forward and form part of the evidence in the determinative process in each application.

6 The directions were in the following terms:

(1) Directions in one matter are to be directions in all three matters;

(2) The applicant is to file and serve any BCA compliance and structural adequacy material (concerning the enclosed veranda area at the rear of the main dwelling and concerning the separate structure at the rear of the property) by the close of business on Friday 20 February;

(3) The applicant is to file and serve any other statements of evidence by the close of business on Friday 20 February;

(4) The respondent is to file and serve any statements of evidence by the close of business on Friday, 6 March.

7 A number of additional purely procedural directions were also given. At the commencement of today’s hearing in all three matters, I directed that evidence in one, to the extent that it was relevant, would be evidence in each of the other proceedings.

8 I have heard evidence briefly from two council officers – those council officers being Mr Lupevski, who is a building surveyor employed by the council, and Mr Pillon, who is the team leader of building compliance employed by the council. I have also received a variety of documents in evidence, including the Ryde Planning Scheme Ordinance, the terms of the relevant orders and a number of certificates provided by the applicant.

9 Mr Strati, the solicitor who is the general counsel for the council, also tendered the applicant’s Statement of Facts and Contentions in matter 08/11135.

10 I turn first to deal with the question of the building certificate application.

11 The building certificate application encompasses, effectively, three elements on the site. The first is a number of gyprock and timber stud walls and related doors located at the front of the house on the site. These divide, on the ground floor, a room to create additional space. There are similar structures located at the top of the stairs, on the first floor of the house. It is the agreed position, as a result of the inspection during the course of the unsuccessful conciliation conference, that those elements were non-load bearing and appeared to be structurally sound. It is therefore the agreed position of the parties that a building certificate should be issued for them and, to that extent, by consent, it is appropriate that the orders in proceedings 08/11134 will provide that a building certificate be issued for those structures. As the demolition of those structures is also dealt with in proceedings 08/11136, it is also appropriate at this stage to note that the council no longer presses for those two items that comprise items 1 and 2 of the schedule of works to be demolished.

12 The question to be considered in the first instance in an application for a building certificate was discussed by Bignold J in Ireland v Cessnock City Council (1999) NSW LEC 153; 110 LGERA 311. His Honour held that there was a two stage test to be applied in the consideration of an application for a building certificate and for use of a structure erected without the necessary development consent or building approval. The first step was a positive requirement that it be established that the elements proposed to be the subject of the building certificate were in fact structurally sound. The second step required, provided the first step was satisfied, that the proposed use was appropriate to be permitted. In this case, with respect to the stud walls, the first of those tests has been satisfied and the council raises no issue with respect to the second of those tests.

13 With respect to the patio area at the rear of the main structure on the property, I have in evidence from the applicant two certificates from a consulting civil and structural engineer, Mr W Riman, the first of which (dated 17 January 2009) noted he had inspected the supporting beam for the roof structure and indicated a structural deficiency contained in it. In a second certificate from Mr Riman (dated 10 March 2009), he has now certified that the inadequacy to which he had earlier drawn attention has been rectified. The council, through its expert evidence, accepts that that is the case.

14 However, the council has also raised the question of the adequacy of the additional section of the patio slab which has been installed without development approval and the adequacy of the flashing of the enclosed windows and wall structures around this now enclosed patio. I have no evidence as to the adequacy of the slab and no evidence as to the adequacy of the flashing of those surrounding wall and window structures. As a consequence, with respect to those elements of that structure, the first of the tests in Ireland has not been satisfied and it is not possible for me to order the issuing a building certificate with respect to those two elements. The application therefore fails with respect to the patio structures.

15 With respect to what is described as a cabana, at the rear of the property, (an existing structure separated from the main structure on the house), there is an assertion contained in a certificate dated 18 February 2009 from Polyway Engineering Services Pty Limited as to the use and classification of that building pursuant to the Building Code of Australia.

16 I note, but it is not relevant and I do not take it into account in my decision, that the observations made about the purposes for which that building is applied were not supported by my observation during the course of the site inspection. However, as that is not a matter specifically the subject of detailed evidence, I set it aside in my consideration of the building certificate application for that structure.

17 There are four defects identified in the report as non-compliances with the Building Code of Australia. They relate to the flashing of the external roof, although it is typed as “root” on the document that I have in front of me, that there is a necessary requirement for chemical termite control at some future unspecified time and that the toilet in the building does not comply with the Building Code of Australia requirements for dimensions.

18 Critically, there is a range of structures contained within that cabana which are not discussed in this certificate from Polyway Engineering Services. There are a variety of internal walls and the like and an external awning structure, none of which are the subject of any certification as to their structural adequacy. I do note, however, that I am satisfied that one criticism made by this company (of the grouting in a vertical corner of the bathroom) would be capable of being cured by an order for silicone treatment of the grouting, rather than conventional mortar style of grouting and I set that issue aside.

19 However, there is no evidence upon which I could be satisfied that all of the elements that have been constructed (or indeed any of them that are relevant within the separated cabana structure) have been constructed in a fashion compliant with the first of the tests in Ireland. There is, therefore, no basis upon which I could order that the appeal be upheld and that the council be directed to provide a building certificate with respect to that structure.

20 It is convenient, therefore, for me to turn sequentially to the question of the order for demolition that is contained in proceedings 08/11136. This order contains a schedule of works with six elements contained in it. The first two, as I have earlier observed, have been set aside because they are now to be the subject of a building certificate and are to be permitted to be used to divide the rooms within which they are located.

21 The third, fourth, fifth and sixth elements require demolition of unapproved works in the rear structure, about which I have only evidence as to their structural adequacy concerning item 4. On the contrary to some extent, I have evidence of the inappropriateness of them, save and except with respect to the showering arrangement contained in the structure at the rear, where I do have a certificate from an enterprise known as Stallion’s Waterproofing and Cleaning Services which comprises a guarantee for a backyard bathroom and shower.

22 Subject to the requirement that those areas be appropriately silicone sealed as set out in the Polyway report, I do not consider that it is appropriate to order the demolition of that element of the bathroom, that is the shower recess element of the bathroom and to that extent the demolition order appeal is upheld and the order contained in item 4 of the Schedule of works required to be demolished is to be removed from such schedule, unless its demolition is a necessary consequence of any of the elements contained in items 3 and 6 of the schedule of orders.

23 However, with respect to the other elements – that is items 3, 5 and 6 – I have no evidence of structural adequacy. I have limited evidence of structural inadequacy. The onus lies on the applicant, consistent with the decision in Ireland, to provide the necessary information to give me the relevant degree of comfort, both to permit a structure to remain and to be certified. I do not have that and cannot have it on the evidence that is presently available to me.

24 As a consequence, I propose to require that the items contained in 3, 5 and 6 of the order of 7 November be demolished. It was agreed by the parties that it would be appropriate to allow an extended period of time of at least three months for that to occur, so I therefore propose to order that those three elements be demolished within 90 days of the date of this hearing.

25 I now turn to the more contentious issue of the use of the premises and how that should be characterised.

26 The owner of the premises permits students to stay at her premises. I have been provided with a business card that indicates that she is the President of an organisation called The Australia Chinese Travel Association and the evidence that I have of the way the premises are used is contained in the applicant’s Statement of Facts and Contentions in this matter. I quote from the section commencing at paragraph 15 of that document and headed “How this house is used”:

15. The house was purchased by this owner who had at that time to accommodate her family and her parents. The parents decided to return to Taiwan. The husband vacated and a daughter decided to move closer to her place of employment, leaving only the owner and her son as residents.

16. The owner was prevailed upon because of the ample space in her large home to assist Chinese students enrolled at Macquarie University when they first come to Sydney to study. Such students are totally unaware of the area, how to get to the university, et cetera, have no means of transport and no knowledge of accommodation available. The owner agreed to provide relatively short term accommodation in her home.

17. A limited number of such students are treated into the house where they may live for a month to six weeks. They are treated like family, eating their main meals usually around the family table with the owner and her son who they assist with his homework. They are able to prepare their own snacks at kitchen facilities on the back patio. They are shown around Sydney by the owner and are driven again by the owner in her personal people mover each day as required to the university pending them finding permanent accommodation usually with other students nearer the university.

18. Students have no cars and of course have to pay board as is usual with any adult children in a domestic situation.

19. The use does not involve in any way the employment of any person other than the normal occupants of the dwelling and cannot possibly interfere in any way with the amenity of the area. The front door of the house is now used exclusively for access by students to the house.

27 The statement of Mr Lupevski records that on 20 May 2008, through council’s customer request management system, a complaint was received, reference number 934439, alleging that:

“59 Anzac Avenue, West Ryde (premises) unauthorised work to the outbuilding, the use of the outbuilding for a three bedroom house, additional bedrooms to the main dwelling and 16 students living in the house addition to the rear of the dwelling without council approval, additional kitchen installed and the movement of the occupants at all hours, hence creating noise and disturbance”.

28 The contentions raised by the council are that:

• the activities being conducted at the premises constitute a boarding house;
• the area is zoned Residential A;
• use as boarding house is contained in column five of the land use table, being a purpose for which buildings or works may not be erected or carried out or used in this zone; and
• therefore, the use for the purposes undertaken by the owner is a prohibited use and ought be ceased.

29 Boarding house is defined in clause 3 of the Planning Scheme Ordinance as “including a house let in lodgings or a hostel but does not include a motel”.

30 Mr Willis, who is the applicant and is acting as agent for the owner of the premises, suggests that that which is being carried out is a “home occupation”. This is defined as meaning “an occupation carried out in a dwelling house or in a dwelling in a residential flat building by the permanent residents of the dwelling house or dwelling which does not involve any of the following:”

relevantly, “(c) interference with the amenity of the neighbourhood by reason of the emission of noise, vibration, smell, fumes, smoke, vapour, steam, soot, ash, dust, waste water, waste products, oil or otherwise.”

31 It is in that context that I consider what is carried out on the premises and how they might be characterised, particularly the concept of the premises being “let in lodgings”.

32 I have in evidence, attached to the statement of Mr Lupevski, a number of photographs (some of which are less clear than others but all of which relevantly accord with my recollection of the premises) showing that at least some of the individual doors of the rooms occupied by Chinese students are separately lockable. None of the rooms on my observation had their own bath or shower facilities. None of them had separate cooking facilities so that, to the extent that the buildings both at the front and the rear provide cooking facilities, they are of common use between those who are resident in the premises, whether they are the owner of the premises and her son or students staying with her.

33 I am satisfied that, as a consequence, in considering the definition of dwelling in the Ryde Planning Scheme Ordinance which is that it is “a room or suite of rooms occupied or used or so constructed or adapted as to be capable of being occupied or used as a separate domicile”, that at the very most the maximum number of domiciles which exist on the site is two. However, as a consequence of the way the premises appeared to be being used in the subsidiary structure at the rear, that the dwelling and bathroom facilities there were not being operated for exclusive use of any of the residents of any of the bedrooms in that building and therefore that it was unlikely, as a matter of fact, that that structure constituted a separate dwelling as defined in the Planning Scheme Ordinance.

34 The indicia that I have about the use are as follows:

• First, the students have rooms that are capable of being locked; and
• Second, although I have no evidence of the basis of their tenure (that is whether there is any written agreement or the quantum of board that they pay), however there is no doubt that they pay for the services that they get – that is the right to live in the premises for a period of a month to six weeks.

35 There is no way in my mind that that could possibly constitute a “home occupation”. It is, as the definition of “boarding house” provides, “a letting in lodgings”.

36 There are common facilities, facilities where the students will eat with the owner of the premises and her son but where they have a separate right to prepare food in shared facilities, also located on the premises (either in the patio area or in the rear cabana area).

37 I am satisfied that that meets the definition of boarding house and it is not a home occupation as a matter of fact.

38 However, if I am wrong about that, the basis upon which the matter came to the attention of the council was a complaint by somebody about the impact that that was having on their neighbourhood by way of noise.

39 During the course of the on site inspection, we visited the premises next door and I was informed that those premises were the source of the complaint about noise coming from the site and disrupting their residential amenity. Such a disruption of their residential amenity by way of noise prevents the occupation on the premises, however otherwise characterised, from being carried out as a home occupation as it fails the definition earlier quoted.

40 Therefore if I am wrong that the premises are a boarding house - a proposition that I obviously have accepted - I am also satisfied that the activity that is carried out on the premises is not a home occupation.

41 If that were to be the case, it would leave them as an innominate use and might be permissible. I am, however, satisfied that that is not the case and that the premises are in fact being used as a boarding house on the basis of such evidence as I have available to me.

42 The consequence is I turn to the question of whether I should exercise my discretion and order that the use cease. It will, as a matter of necessity, cease, for at least part of the premises as a consequence of the order for the demolition of the structures at the rear. However the use is prohibited and there is no question of existing use rights arising as the purchase of the premises took place after any preservation of existing home occupation rights being preserved under the Ryde Planning Scheme Ordinance was deleted from that instrument.

43 The parties have agreed that if I were minded to order the cessation of the use, in lieu of the time period contained in the present order, a period of 90 days from the date of these orders ought to be allowed for those purposes. I am satisfied that, as the use is inappropriate and there has been at least one complaint from a neighbour about unsatisfactory noise coming from the premises, it is appropriate to order the cessation of the use and that cessation to take place within 90 days of today.

44 As a consequence of all of the foregoing, I make the following orders subject to finalisation of drafting to give effect to them.

45 In matter 08/11134:

1. The appeal is upheld.
2. The council is directed to issue a building certificate with respect to the gyprock and timber stud walls and associated doors at the ground and first floor of the premises at the street frontage end; and
3. The remainder of the matters contained in the building certificate application are dismissed.

46 With respect to proceedings 08/11135, the orders are that:

1. The applicant cease the use of the premises at lot 11 DP11340, 59 Anzac Avenue, West Ryde for the purposes of a boarding house; and
2. that use is to cease not later than 90 days from today’s hearing.

47 With respect to matter 11136, the orders are that;

1. By consent, the appeal is upheld with respect to items 1 and 2 in the schedule of works contained in the order;
2. The items contained in items 3, 5 and 6 of the schedule to the order are to be demolished within 90 days of the date of this hearing; and
3. The appeal is upheld with respect to item 4 in the schedule of works (unless demolition of items 3, 5 and 6 has the necessary consequence of demolition of the structure contained in item 4.

Tim Moore
Senior Commissioner