Sydney gets lost in its own red tape
Danny Arraj & Veno Panicker, Blackstone Waterhouse
20 September 2017
Sydney Council gets lost in its own red tape - Another win for the developer!
Understanding the difference between an appeal of a building certificate refusal and an appeal of a development application.
GCorp Property Pty Ltd v Council of the City of Sydney  NSWLEC 1222
Danny Arraj & Veno Panicker
Blackstone Waterhouse recently acted for GCorp in successfully challenging the refusal of a building certificate by Sydney Council. This important Land & Environment Court decision highlights the importance of the distinction between an appeal of a building certificate refusal compared with an appeal of a development application. In focussing too heavily on the detail of departures from a development consent for the subject development compared with the as built works, Sydney Council failed to adduce evidence based on a review of the as-built works based on planning merits – this proved fatal to its case against GCorp. Put simply – when looking at an appeal of a building certificate refusal, it is irrelevant whether the as built works were substantially the same as the development approval – what is considered is whether, on a planning merits basis, the as built works would be acceptable in a fresh review as if a new development application.
1. GCorp was the developer of a mixed use residential and commercial site at 33-49 Euston Road Alexandria.
2. Council initially complained that GCorp built the subject works outside of the development consent for the site and sought works to be undertaken including:
a. amending the front façade to include “Prodema” Timber cladding and concrete texture finish;
b. altering the privacy louvres to the balconies;
c. correcting the rear façade window which not horizontal;
d. addressing a lack of set-back for uppermost floor; and
e. other rectification works.
3. As the subject works had not received a final occupation certificate, GCorp sought a building certificate to regularise the alleged non-conformances.
4. In August 2015, Council refused the building certificate, including on the basis of the following reasons:
a. the subject works were not in accordance with the development approval; and
b. no s96 modification application had been sought – and, given the extent of the non-conformances, would not be ‘substantially the same development’.
5. GCorp commenced proceedings in the Land and Environment Court challenging the refusal of the building certificate.
6. At trial, Council gave evidence that the design elements overlooked by the developer were “essential” and were required to be amended. The Prodema timber, textured concrete and louvres were important in the development plans. It was conceded by Council that they was considering the as-built design to the approved design.
7. Against this, GCorp submitted evidence that reviewing the as built works on a planning merits basis, sensible alternatives to the extensive works proposed by Council would enable the works to conform with the Sydney Local Environmental Plan 2012.
8. A building certificate is issued by council and relates to existing works to a building. A building certificate ensures that council will not, for a period of 7 years from the date of the certificate, seek to require a building to be demolished, or altered, except in the case of fair wear and tear over that period.
9. The Environmental Planning and Assessment Act 1979 (NSW) requires that council must issue a building certificate if it appears that there is no matter discernible which would require a building to be demolished, altered, added to or rebuilt, or no such matter the council would propose to make an order over or initiate proceedings.1
10. The Court found that when considering a building certificate the planning merits of the building (as built) should be considered. It is not a question of whether unauthorised work was carried out, or how much the building differs from the original approved design.
11. Expert evidence was heard for amendments that were reasonably required for the building to meet planning guidelines, but not to the extent to make the building conform to the original design.
12. The relevant principle is that deviation from the approved plans is not grounds for refusing a building certificate. The consideration to be made is whether the building complies with planning guidelines. It should be considered de novo and not in comparison to the approved plans. Danny Arraj leads the Environment and Planning Team at Blackstone Waterhouse. The Firm acts for Developers and Builders involved in disputes with local council in some of the largest developments in Australia.
1 Environmental Planning and Assessment Act 1979 (NSW) s 149D(1).
Photo by Daniel Chen