Back to the Future: Judicial (micro) management of building certificate appeals

The extensive litigation history over the residential development at 8 Bayview Street, Northwood has continued into 2015 with the most recent judgment of the Land and Environment Court in Chami v Lane Cove Council [2015] NSWLEC 1003. We previously commented on some of this litigation history last year.

This most recent judgment by Senior Commissioner Moore continues to deal with an attempt by an Applicant to regularise, or protect from enforcement, works undertaken where those works are not consistent with a development consent. The decision canvasses the hierarchy of processes established by the Environmental Planning & Assessment Act 1979 in regulating unapproved works.

Of particular importance, the decision deals with the issue of building certificates in these circumstances. This decision notably highlights the urgent need for case summaries in the Land and Environment Court.

A need for case summaries?

The use of case summaries by the Supreme Court and High Court improves the intelligibility of the decisions in those jurisdictions. The decision of Chami suggests that the Land and Environment Court may also benefit by adopting this practice.

The Chami decision followed 12 days of hearing, and is more than 500 paragraphs long. It covers a broad range of legal issues including:

  • Back to the future 208492669res judicata
  • estoppel
  • the role of agents acting in the Land and Environment Court
  • Wednesbury reasonableness and whether it is still good law in Australia
  • the rules of evidence in appellate bodies
  • the weight to be given to Development Control Plans
  • the application of the State Environmental Planning Policy (Exempt and Complying Development Codes) 2008.

The decision also deals with the usual technical matters raised in planning appeals such as calculation of gross floor area, privacy, and bulk and scale.

In the end, the actual findings were set out in a separate schedule to the judgment.

While detailed written judgments are important to our system of justice and the development of jurisprudence, cases such as this would benefit from Court issued case summaries, particularly given the content of this appeal, which touches on how people use and develop their residences and the legal controls on unapproved works.

Case summaries for long and complex judgments such as this would also sit in harmony with the government’s focus on increasing the transparency of the planning process (e.g. ePlanning), and provide better access to planning information that is simpler to understand.

Building certificates

The case concerned an appeal against a building certificate application by Ms Chami for the works as constructed. The Council wanted seven construction issues to be resolved before it considered whether a building certificate should be issued.

At the beginning of the judgment, Senior Commissioner Moore helpfully summarises the legal framework for regularising unapproved works and the shielding effect that a building certificate has. These comments warrant reprinting:

16. Where development consent has been granted but the works were not in conformity with those approved, s 96 of the Act potentially provides (subject to the limitations in the provision) a path for retrospective approval (Windy Dropdown Pty Ltd v Warringah Council [2000] NSWLEC 240).

17. An alternative, here pursued by the applicant, is to apply for a building certificate through the process contained amongst the various matters covered by Part 8 of the Act. In this instance, as discussed later, an earlier s 96 modification application (by Mr Ross – the former owner and now agent for the present owner) was discontinued and the applicant has now made a building certificate application. The refusal of that application provides the foundation of these proceedings.

18. It is to be noted, as well as this hierarchy of approval processes, a statutory instrument under the Act, State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 also designates a wide range of very minor works as exempt and removes them from the need for the obtaining of consent through the statutory processes. The policy designates further types of development as “complying’ and thus capable of approval through the issuing of a complying development certificate where such certificates may be issued by a private certifier. The scope of the policy and its potential relevance to this dwelling is discussed later.

19. In addition to these approval processes under the Act, the Act also provides a range of enforcement mechanisms for local councils to respond to works that are carried out where they are neither exempt nor subject to an appropriate approval for their execution. Coupled with this enforcement regime, the Act also provides a potential shielding process to protect, in appropriate circumstances, unapproved works from the enforcement mechanisms in the Act. This protective mechanism is effected through the ability of a council to issue, after assessment of the unapproved works and in appropriate circumstances, a building certificate that has the effect of shielding any unapproved works for a period of time. The details of the statutory framework for building certificates are set out in more detail later.

20. At this point, it is sufficient to note several matters with respect to the building certificate process. These are:

  • first, if an application for a building certificate is refused (or deemed to be refused) by a council, a right of appeal against that refusal lies to this Court
  • second, importantly, appeal proceedings concerning a building certificate application are, in no way, punitive proceedings of any disciplinary nature for the carrying out of unapproved works.

21. With respect to this latter point, it is clear that any punitive function in the Court is to be undertaken by the Court exercising its jurisdiction in a different Class of proceedings (see Ireland v Cessnock City Council [1999] NSWLEC 250; (1999) 110 LGERA 311 at [38] – referred to hereafter as Ireland No 2).

22. It is also clear that building certificate appeals, falling as they do in Class 1 of the Court’s jurisdiction, are merit appeals and are subject to the procedural informality afforded to them by the provisions of the Land and Environment Court Act 1979 (the Court Act) as discussed in more detail later.

Senior Commissioner Moore then goes on to set out the three avenues available for consent authorities when dealing with building certificate applications:

62. …there are at least three different paths for the Court to consider following in determining any appeal against the refusal or deemed refusal of a building certificate application. The three options of which I am aware (although there may be others) are set out below.

  • First, when the works are unapproved and there is no approved use to which the works could be dedicated, the appropriate course for the Court to follow is to deal with the question of the structural adequacy and building code compliance of the works and then to consider any separate development application for approval to use the works for a particular purpose. This is the approach that was taken by Bignold J in Ireland No 2.
  • Second, when the works are unapproved additions and/or alterations to approved works and there is, expressly or necessarily implicit in the approval for the approved works, an existing approval for use for a particular purpose attached to that approval and, if the unauthorised works are regularised, approval is sought for a different use, the appropriate process is to consider the structural adequacy and building code compliance of the unapproved works before considering whether it is appropriate to approve the change of use if the unapproved works were to be regularised. This process also necessitates two separate applications, one for a building certificate to regularise the unauthorised works with a second application being necessary for approval for the change of use. These are the circumstances I addressed in Griffis and anor v Tweed Shire Council [2011] NSWLEC 1126.
  • Third, and more complex, however, are the circumstances that arise in these proceedings – namely where there is an existing approved use (as a residence), significant departures from the current development consent for additions and alterations to the existing residence but, if a building certificate were to be granted, no separate application to establish or change a use is required as the pre-existing residential use is proposed to be maintained.

The case at hand fell into this third category, and the next 500 or so paragraphs of the judgment provide the Court’s merit assessment of the application, detailing the Court’s weighing of the evidence on the matters such as the calculation of gross floor area, privacy, and bulk and scale.

A novel judgment?

The Court’s approach was to adopt a more intense supervisory role by initially requiring the Applicant to undertake works set out in a schedule of works and then adjourn the matter until July 2015 to permit the Applicant to give effect to that schedule. These works were held to be necessary before the Court would direct the Council to issue a building certificate. The conclusion of the judgment sets out a procedural regime to be followed to permit the finalisation of the matter at a resumed hearing, to commence at the end of July 2015.

As the judgment foreshadows, this approach raises cost implications for the Applicant in not only complying with the details in the schedule, but also in attending a resumed hearing mid-way through 2015 (although the Applicant (Ms Chami) is represented by an agent (also the Applicant’s partner)).  In relation to these costs, Senior Commissioner Moore stated:

555. Although the costs of giving effect to Schedule 1 will be more than trifling, those costs are ones necessarily arising as a result of addressing the unacceptable consequences of the applicant (and her predecessor in title) departing from that which had been approved in the 2008 development consent plans.

556. In saying that, as I have earlier noted, these proceedings are in no way punitive and each of the matters contained in Schedule 1 arises as a consequence of the necessity to address adverse impacts of that which has, in fact, been constructed when compared to that which had been approved in the 2008 development consent plans.

500 in 3

The decision plots the legal regime for unapproved works, and the options consent authorities have in dealing with building certificates.

If other Commissioner’s follow the Senior Commissioner’s approach in Chami in respect of building certificate appeals, it could signal a more intense supervisory role of the Court. Not only does the Applicant need to file and serve certificates demonstrating compliance, but the Court has set out a list of matters to be addressed.  The Court will continue its hearing of the matter in 6 months’ time, with the resumed hearing commencing on site so the Court can inspect the degree to which compliance has been achieved.

Time will tell whether this serves the Court’s stated aim of “limiting any future potential litigation”, and “of bringing finalisation to disputation”.

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